the execution, but in case of his absence, the matter is proceeded with, notwithstanding. In case of silence, insufficiency, or obscurity of law, in the Codes above mentioned, the judges may adopt the principles of natural law and of the rules of equity.

In Criminal matters, in the case of foreigners, the judge of infractions (contraventions) is one of the foreign members of the tribunal.

The Council Room (chambre de conseil), both in matters of offences (délits) and in matters of crimes, is composed of three judges, of whom one must be a foreigner and two be natives, and of four foreign assessors. The Police Court (tribunal correctionnel) is composed in like manner. The Assize Court is composed of three Councillors, one native and two foreigners; the twelve jurymen are foreigners. Half the assessors and jury may at the demand of the accused be of his nationality.

The consul of the accused must without delay be advised of all prosecutions for crimes or offences directed against the latter. The examination and the trial are to be in the judicial language which the accused knows.

Except in the case of a flagrant offence, or of a call from within a house, no house of a foreigner may be entered during the night, save in the presence of the consul or his delegate, unless the consul had authorised it to be entered in his absence.

If the consul claims that a matter in prosecution appertains to his jurisdiction and that it ought to be submitted to his tribunal, the question, if contested by the Egyptian Government, is to be referred to the arbitration of a council composed of two councillors or judges, chosen by the president of the court, and of two consuls, chosen by the consul of the accused.

Excellent as the Code appears in theory, its practical working is deficient. Thus it is to be observed that, although provision is made for rendering the Egyptian Government amenable to the tribunals, the Code omits to state what property of the Government can be sequestered, for the purpose of satisfying unexecuted judgments against itself. According to the general principles of law, State property devoted to a public service, or to public utility generally, is not subject to sequestration. This rule is based on public utility, and arises from the necessity of the separation of the judicial and administrative functions, as well as from the principle that the public good must prevail over the private interest. The new tribunals, therefore, for more than a year, have seen their authority defied, through the refusal of the Government to permit judicial sentences against itself to be executed. Indeed Judge Haakman closed his court in despair, as early as the end of the year 1876. The latest case, that of Keller v. the Egyptian Government, is one of great importance; the plaintiff having established his claim before one of the tribunals, to be paid all arrears of salary due to him as an officer of the Government, proceeded to place a sequester on the funds of the State lying in the Egyptian treasury. The Government appealed against the validity of the seizure, and on the 7th February, 1878, the Court of Appeal allowed the appeal, on the ground that State property could not be sequestrated, and that, however deplorable might be the consequences in

Egypt, which must result to public creditors from the strict observance of the rules laid down in the Judicial Treaty, the Courts could not interfere with administrative measures, nor by means outside their strictly judicial functions, take steps to force the Government to execute its engagements towards its creditors.

But this position of the Courts involves so much inequality, and so much affects their utility, that the Court of Appeal thought itself bound to follow the judgment in this case with the following memorandum :

'The Court of Appeal has long demanded from the Egyptian Government the execution of the sentences given against it, and has for some months past pointed out that a crisis would arise, if the Government, availing itself of the limits imposed on the tribunals by the Judicial Treaty and the general principles of law on the insequestrability of the property of the State, should persist in avoiding the consequences of all adverse judgments.

'The Court is of opinion that the situation is not only derogatory to the dignity of the Egyptian Government, but that it will also irreparably compromise the judicial reform in Egypt if it is allowed to continue.

'The Court maintains, as a matter of great urgency, that it is necessary to assure to the creditors of the Government a protection as complete as that which the Courts accord to all parties in their legal relations with each other.

'The Court begs its President to transmit this declaration to the Egyptian Government, and further authorises its foreign members to communicate it to the Powers, in the hope that their intervention will lead to a prompt and satisfactory settlement.'

А сору of which was ordered to be forwarded to all the Governments that had signed the Judicial Treaty.

No. III.

TERRITORIAL WATERS OF THE BRITISH
EMPIRE.

(Extracts from The Times, February 15th, 1878.)

The Lord Chancellor rose to call the attention of the House to the question of the jurisdiction of the Crown in the territorial waters of the Empire, more especially with reference to the recent case of the Franconia,' and to present a Bill on the subject. The jurisdiction. to which he had to call attention was not over rivers, bays, or harbours, because in respect of that no controversy had ever arisen, but the jurisdiction over the territorial waters in that belt or zone of the high seas which more or less surrounded the shores of the Empire. This, at first sight, would appear to be a question of law. No doubt

it was a question of law, but he rather thought of that which had been described as the first law of nature-the law of self-preservation. It was necessary, to some extent and in some measure, that there should be a territorial jurisdiction over the high seas surrounding the seaboard. No empire which had a seaboard could be allowed to remain without a jurisdiction of that kind. If in the case of such an empire it was held that the jurisdiction of the kingdom ended with the dry land, the consequence would be that the subjects of that kingdom in the presence of foreigners would be absolutely without defence from the moment they entered the sea for the purpose of bathing, or fishing, or for any other purpose. Not only so, but when on dry land they would be without a protection, because if no jurisdiction from the land extended to the sea surrounding the seaboard, people from all parts of the world might come to the part of the high sea contiguous to the land and resort to practices which might be of the most serious character to people on shore. So, again, in the case of war, hostilities carried on by belligerents outside the shore might expose a neutral Power to the greatest danger. It might be asked whether the question was not solved, so far, at all events, as to the low water mark to which unquestionably the territorial jurisdiction extended. With regard to the low water mark it must be remembered that there were parts of the coasts where there were considerable intervals between high and low water mark, and also there were in the kingdom, as their lordships knew, many places where the sea came so close to the cliffs that there was absolutely no horizontal interval between high and low water marks. It had been suggested, or might be suggested, that if the jurisdiction of this country extended over the part of the high seas immediately adjoining the shore, inasmuch as the right of passage over that part was allowed to foreign ships, it would be unfair to claim such a jurisdiction as against them. He was quite willing to concede the right of passage contended for, but he had imagined that it was to be conceded on this footing and this footing only-that those who availed themselves of the right of passage should not expose themselves to any complaint of a violation of the rights of those by whom the right of passage was conceded. In truth, any such exemption would apply to the case of foreign ships coming into one of our bays. What made it necessary for him to bring this matter under the notice of their lordships was a case of considerable interest-that of the collision between the Franconia' and the 'Strathclyde' off Dover, by which a number of persons lost their lives. [His Lordship here gave a short history of the facts.] He would endeavour to explain what he understood to be the main ground of the judgment of the majority of the Judges in the 'Franconia' case. But before he did so, there was an incident which he wished to mention to their lordships. One of the learned Judges, for whom they all had the greatest respect, and whose judgment, from his experience in criminal cases, was of the greatest weight-Mr. Justice Lush-stated that though he concurred with the Lord Chief Justice in that learned Judge's view of the case, yet he wished to guard himself in this particular case with respect to the limits of the high seas. He said

I wish to guard myself from being supposed to adopt any words or expressions which may seem to imply a doubt as to the competency of

Parliament to legislate as it may think fit for these waters. I think that usage and the common consent of nations, which constitute international law, have appropriated these waters to the adjacent State to deal with them as the State may deem expedient for its own interests. They are, therefore, in the language of diplomacy and of international law, termed by a convenient metaphor the territorial waters of Great Britain, and the same or equivalent phrases are used in some of our statutes, denoting that this belt of sea is under the exclusive dominion of the State. But the dominion is the dominion of Parliament, not the dominion of the common law. . . . Therefore, although, as between nation and nation these waters are British territory, as being under the exclusive dominion of Great Britain, in judicial language they are out of the realm, and any exercise of criminal jurisdiction over a foreign ship in these waters must, in my judgment, be authorized by an Act of Parliament.'

As he understood these words, if Sir Robert Lush had found that in the particular place Parliament had stepped in and said that portion of the water was part of the United Kingdom, he would have been of opinion that the Crown had territorial jurisdiction over it, and the conviction ought not to be quashed. It was fortunate for the prisoner in the 'Franconia' case, though not fortunate for the vindication of the law, that Mr. Justice Lush was under the impression that that had not been done which really had been done. It appeared that in an Act of 1848 for the regulation of Customs there was a provision authorising the Lords of the Treasury to establish ports in many places where ports were required, and to define their limits. Under that provision the Lords of the Treasury issued a warrant, which was inserted in the London Gazette of the 3rd of March, 1848. In that warrant were these paragraphs :

:

'That the limits of the port of Dover shall commence at St. Margaret's Bay aforesaid, and continue along the said coast of Kent to Copt Point in the said county. That the limits of the port of Folkestone shall commence at Copt Point aforesaid, and continue along the coast to Dungeness, in the said county.'

'And we, the said Commissioners of Her Majesty's Treasury, do further declare that the limits seaward of the said ports shall extend to a distance of three miles from low-water mark out to sea, and that the limits of such ports shall include all islands, bays, harbours, rivers, and creeks within the same respectively.'

So that under Parliamentary powers the proper authorities had declared long before the 'Franconia' case that the limits of the port of Dover extended three miles out to sea. We understood the view of the majority of the Judges to be this, that there was one jurisdiction by land and the other by sea; that the jurisdiction by land was one limited by the limits of counties, taking into the county the low-water mark and the harbours and rivers within the county; and the jurisdiction by sea, the old jurisdiction of the Lord High Admiral now exercised by the Central Criminal Court; that the jurisdiction of the Lord High Admiral extended to the high seas, but the persons over whom it was exercised must be British subjects, not foreigners; and that the Central Criminal Court had no jurisdiction over the persons of foreigners beyond the low-water mark. That he understood to be the common ground on which the majority of the Judges acted in quashing the conviction. And taking that as the ratio decidendi of VOL. II.

the Judges in a decision which he accepted, it would at first sight appear that there was nothing more for him to do than to ask the favourable consideration of their lordships for a Bill to amend the law; but there fell some observations from Sir Robert Phillimore, the Lord Chief Baron, and the Lord Chief Justice, whose judgment was the most elaborate, and might be regarded as the leading judgment of the majority, and which contained a principle that seemed to challenge the right of Parliament to legislate on this subject. Expressions of the Lord Chief Justice would certainly seem to imply that we could not legislate with respect to the high seas even within the limits of the belt or zone to which he had referred without the consent of foreign nations, or until after communication with foreign nations. That was a very serious question. If the judgments of those learned Judges amounted, as they were supposed to do, to a proposition of that kind, of course Parliament would be exceeding its powers if it entered into legislation applying to that belt or zone with the view of making foreigners amenable to our law. But he would ask their lordships to consider whether there was any foundation for that principle. He ventured to think there was not, and he thought it would be a very serious thing if there were. He would lay before their lordships the views of great constitutional writers of this Kingdom and of the United States on this question. Then he would add the views of international jurists on the Continent, and next he would show what our own Judges had ruled in international cases, and lastly he would direct attention to what their lordships themselves had done in the course of legislation. [His Lordship here referred to the principal English, American, and foreign writers on International Law.] It appeared to be established as a matter of principle that there must be a zone. The only doubt was as to how far our limit extended. The authorities were clear on this-that if three miles were not found sufficient for the purpose of defence and protection, or if the nature of the trade or commerce in the zone required it, there was a power in the country on the sea-board to extend the zone; but at present there was a consensus of opinion among the authorities that certainly the jurisdiction extended to three miles. If that were not the established law, nations with a sea-board would be very much worse off than those which had none, because a neighbour on land you could make a treaty with or treat as an enemy, but if a nation with a sea-board had no control over a zone it would always be liable to dangerous aggression from beyond the sea. (Hear, hear.) He would now refer their lordships to judicial opinion. In a case in which Prussia claimed restitution of a ship seized by an English manof-war within three miles of Prussian territory, Lord Stowell said :—

'A claim has been given for the Prussian Government, asserting the capture to have been made within the Prussian territory. It has been contended that although the act of capture itself might not have taken place within the neutral territory, yet that the ship to which the capturing boats belonged was actually lying within the neutral limits. The first fact to be determined is the character of the place where the capturing ship lay, whether she was actually stationed within those portions of land and water, or of something between water and land, which are considered to be within Prussian territory. She was lying within the eastern branch