TYLER V. JUDGES of COURT of REG

PART I.

JURISDICTION.

CHAPTER I.

LAW.

SECTION I.

THE EXTENT OF LEGISLATIVE POWER.

COCKBURN, C. J.

The defendant has been convicted of the offence of manslaughter on the high seas, on a trial had at the Central Criminal Court, under the statute 4 & 5 Wm. IV., c. 36, s. 22, which empowers the judges sitting there to hear and determine offences "committed on the high seas and other places within the jurisdiction of the Admiralty of England." The facts were admittedly such as to warrant the conviction, if there was jurisdiction to try the defendant as amenable to English law. Being in command of a steamship, the "Franconia," and having occasion to pass the "Strathclyde," a British ship, the defendant brought his ship unnecessarily close to the latter, and then, by negligence in steering, ran into the "Strathclyde " and broke a hole in her, in consequence of which she filled with water and sank, when the deceased, whose death the accused is charged with having occasioned, being on board the "Strathclyde," was drowned.

That the negligence of which the accused was thus guilty, having resulted in the death of the deceased, amounts according to English law to manslaughter can admit of no doubt. The question is, whether the accused is amenable to our law, and whether there was jurisdiction to try him?

The legality of the conviction is contested, on the ground that the accused is a foreigner; that the "Franconia," the ship he commanded, was a foreign vessel, sailing from a foreign port, bound on a foreign voyage; that the alleged offence was committed on the high seas.

1 See Reg. v. Lopez, 7 Cox C. C. 431; Reg. v. Armstrong, 13 Cox C. C. 184.- ED.

Under these circumstances, it is contended that the accused, though he may be amenable to the law of his own country, is not capable of being tried and punished by the law of England.

The facts on which this defence is based are not capable of being disputed; but a twofold answer is given on the part of the prosecution-1st. That, although the occurrence on which the charge is founded took place on the high seas in this sense, that the place in which it happened was not within the body of a county, it occurred within three miles of the English coast; that, by the law of nations, the sea, for a space of three miles from the coast, is part of the territory of the country to which the coast belongs; that, consequently, the "Franconia," at the time the offence was committed, was in English waters, and those on board were therefore subject to English law. 2ndly. That, although the negligence of which the accused was guilty occurred on board a foreign vessel, the death occasioned by such negligence took place on board a British vessel; and that, as a British vessel is in point of law to be considered British territory, the offence having been consummated by the death of the deceased in a British ship, must be considered as having been committed on British territory. I reserve for future consideration the arguments thus advanced on the part of the Crown, and proceed, in the first instance, to consider the general question, how far, independently of them, the accused, having been at the time the offence was committed a foreign subject, in a foreign ship, on a foreign voyage, on the high seas, is amenable to the law of England.

Now, no proposition of law can be more incontestable or more universally admitted than that, according to the general law of nations, a foreigner, though criminally responsible to the law of a nation not his own for acts done by him while within the limits of its territory, cannot be made responsible to its law for acts done beyond such limits : —

"Leges cujusque imperii," says Huber de Conflictu Legum, citing Dig. de jurisdictione, l. ult., " vim habent intra terminos ejusdem reipublicæ, omnesque ei subjectos obligant, nec ultra." "Extra territorium jus dicenti impune non paretur" is an old and well-established maxim. "No sovereignty," says Story (Conflict of Laws, s. 539), "can extend its process beyond its own territorial limits, to subject either persons or property to its judicial decisions. Every exertion of authority of this sort beyond this limit is a mere nullity, and incapable of binding such persons or property in any other tribunals." "The power of this country," says Dr. Lushington in the case of The Zollverein, 1 Sw. Adm. 96, "is to legislate for its subjects all the world over, and as to foreigners within its jurisdiction, but no further."

This rule must, however, be taken subject to this qualification, namely, that if the legislature of a particular country should think fit by express enactment to render foreigners subject to its law with reference to offences committed beyond the limits of its territory, it would be incum

bent on the courts of such country to give effect to such enactment, leaving it to the state to settle the question of international law with the governments of other nations. The question of express legislation will be dealt with hereafter. For the present I am dealing with the subject with reference to the general law alone.

To the general rule to which I have referred there is one exception, that of a foreigner on board the ship of another nation. But the exception is apparent rather than real; for by the received law of every nation a ship on the high seas carries its nationality and the law of its own nation with it, and in this respect has been likened to a floating portion of the national territory. All on board, therefore, whether subjects or foreigners, are bound to obey the law of the country to which the ship belongs, as though they were actually on its territory on land, and are liable to the penalties of that law for any offence committed against it.

But they are liable to that law alone. On board a foreign ship on the high seas, the foreigner is liable to the law of the foreign ship only. It is only when a foreign ship comes into the ports or waters of another state that the ship and those on board become subject to the local law. These are the established rules of the law of nations. They have been adopted into our own municipal law, and must be taken to form part of it.

According to the general law, therefore, a foreigner who is not residing permanently or temporarily in British territory, or on board a British ship, cannot be held responsible for an infraction of the law of this country. Unless, therefore, the accused, Keyn, at the time the offence of which he has been convicted was committed, was on British territory or on board a British ship, he could not be properly brought to trial under English law, in the absence of express legislation.1

These decisions are conclusive in favor of the accused in the present case, unless the contention, on the part of the Crown, either that the place at which the occurrence, out of which the present inquiry has arisen, was, though on the high seas, yet within British waters, by reason of its having been within three miles of the English shore; or that, the death of the deceased having occurred in a British ship, the offence must be taken to have been there committed, so as in either case to give jurisdiction to the Admiralty, or the courts substituted for it, shall prevail. These questions it becomes, therefore, necessary carefully to consider.

On entering on the first, it is material to have a clear conception of what the matter in controversy is. The jurisdiction of the admiral, however largely asserted in theory in ancient times, being abandoned as untenable, it becomes necessary for the counsel for the Crown to have recourse to a doctrine of comparatively modern growth, namely, that a belt of sea, to a distance of three miles from the coast, though The learned Chief Justice then examined the authorities, which in his opinion denied jurisdiction to the Admiral in a case of the present sort. - ED.