it is manifestly not only the right, but the duty of a State to protect *the order and safety of the society entrusted to its charge, [*356] equally against the offences of the foreigner as of the native. (f) This proposition, it should be observed, must not be confounded with another, namely, the alleged right or duty of a State to punish a citizen for an offence committed without its territory,-this is a proposition of Municipal, the other is one of International Law. The strict rule of Public Law undoubtedly is, that a State can only punish for offences. committed within the limits of its territory: this is, at least, the natural and regular consequence of the territorial principle.

Nevertheless it is a pretty general maxim of European Law, that offences committed against their own country, by citizens in a foreign country, are punishable by their own country when they return within its confines. It is, however, clearly within the competence of the State, within whose territories the offence has been committed, to punish the offender, and especially if the offence has not been of a public character against the foreign State, but of a private character against a brother citizen of the offender. But in cases of a public character, a double offence is committed; one against the State of which the offender is a subject, another against the general law of the land within which the offence is devised and perpetrated. There is a maleficiorum concursus. Whether the State of the offender will punish him after he had [*357] been punished by the State within whose limits he committed the offence, is, as indeed the whole question is, a matter of Public rather than of International Law.(g)

The French Law, as a general maxim, holds that penal justice is confined within territorial limits, but with the following exceptions :(h)-I. qui in loco aliquo contrahit, tanquam subditus temporarius legibus loci subjecitur."Grotius, 1. ii. c. xi. 5. 2.

"Quia actionis peregrinorum quamdiu in alieno territorio versantur, vel commorantur, subjacent legibus loci in quo sunt, si peregrini in territorio alieno delinquunt juxta leges loci puniendi sunt."-Wolff, Jus Gent. s. 301.

Vattel, 1. c. 8. 101.

Rocco, Dell' Uso delle Leggi delle Due Sicilie, p. 161.

Martens, s. 99.

Klüber, s. 62.

Massé, Le Droit commerc., &c.; Devoir des étrangers, t. ii. p. 53, &c. (f) Martens, s. 97.

Tittman, Die Strafrechtspflege in Völkerrechtlicher Rücksicht, 11 (Dresden, 1817). Feuerbach, Lehrbuch, 31.

Portalis Chaque état a le droit de veiller à sa conservation, et c'est dans ce droit que réside la souveraineté. Or comment un état pourraitil se conserver et maintenir, s'il existait dans son sein des hommes, qui pussent impunément enfreindre sa police et troubler sa tranquillité. Le pouvoir souverain ne pouvrait remplir la fin, pour laquelle il est établi, si des hommes étrangers ou nationaux étaient indépendants de ce pouvoir. Il ne peut être limité, ni quant aux choses, ni quant aux personnes. Il n'est rien s'il n'est tout. La qualité d'étranger ne saurait être une exception légitime pour celui, qui s'en prévaut contre la puissance publique, qui régit le pays dans lequel il réside. Habiter le territoire, c'est se soumettre à la souveraineté."-Code Civ.: suivi de l'exposé des Motifs, t. ii. p. 12.

(g) H. A. M. Van Asch Van Wijck, De delictis extra Regni territorium admissis. Cf. præsert. cap. i. s. 4., cap. ii. s. 3., cap. iii. s. 3. (Utrecht, 1839).

(h) "5. Tout Français que se sera rendu coupable, hors du territoire de France, d'un crime attentatoire à la sûreté de l'Etat, de contrefaction du sceau de l'Etat, de monnaies nationales ayant cours, de papiers nationaux, de billets de banque auto

If the offence be against the welfare and safety of the State, whether it has been committed by a Frenchman or a foreigner:-II. With respect to private offences in cases where the following conditions are combined

1. That the offence be of sufficient gravity to constitute a crime.

2. That it has been committed by a Frenchman against a Frenchman. 3. That the offender has returned to France.

4. That he has been indicted in France by the injured party.

In the United States of North America, and in the British dominions, the rule of confining penal justice to the territory, in which the offence has been committed, (i) has been most rigidly adhered to. But the latter country has so far *relaxed the severity of her adherence to [*358] this strict rule of International Law as to allow crimes of murder and manslaughter committed out of England, when both the offender and the offended are subjects of the British crown, and when this fact has been averred in the indictment, to be tried in England. Whether they must be British-born subjects appears to be a doubtful point; but, in spite of one decision in the affirmative, the better construction of the statutes affecting this matter would appear to be, that a foreigner, owing allegiance in return for protection, would be within the scope of their provisions.(k)

All indictable offences committed within the Admiralty Jurisdiction, that is, on the high seas, are offences of the same nature, and liable to the same punishment, as if they had been committed on land (1) These

risés par la loi, pourra être poursuivi, jugé et puni en France, d'après les dispositions des lois Françaises" (I. 7. 24.).

"6. Cette disposition pourra être étandue aux étrangers qui, auteurs ou complices des mêmes crimes, seraient arrêtés en France, ou dont le gouvernement obtiendrait l'extradition" (I. 24.).

"7. Tout Français qui se sera rendu coupable, hors du territoire du royaume, d'un crime contre un Français, pourra, à son retour en France, y être poursuivi et jugé, s'il n'a pas été poursuivi et jugé en pays étranger, et si le Français offensé rend plainte contre lui" (I. 24.).

French Code, "Code d'Instruction Criminelle," p. 1.

(i) Delicta puniuntur juxta mores loci commissi delicti, et non loci ubi de crimine cognoscitur."-Bartolus, ad ? final. lex saccularii citat. ob. in 1. I., cunctos populos; C. de summo trinit. in 1. questionem; and Henry on Foreign Law, p. 47. (k) Statutes relating to offences committed by British subjects in foreign states:33 Hen. VIII. c. 23., repealed by 9 Geo. IV. c. 31. ss. 7, 8; latter section applies to cases where the death, or the cause of the death only, happens in England. Cases under 33 Hen. VIII. ç. 23 :

Governor Wall's case, 28 State Trials, p. 51, A. D. 1802.

Rex v. Lepardo, 1 Taunton's Rep. 26; Russell and Ryan's Crown Cases Reserved, 134, A. D. 1807. Offender Lepardo discharged because he was a foreigner.

Rex v. Sawyer, Russell and R. 294, A. D. 1815.

Cases under 9 Geo. IV. c. 31:

Rex v. Helsham, 4 Carrington and Payne's Rep. 294.

Rex v. M. A. de Mattos, 7 Carrington and Payne, 458.

See remarks of Solicitor-General as to preceding case, and Justice Vaughan's

charge to the jury.

(7) Statutes relating to offences on the high seas, or in slavers, &c.:—

15 Rich II. c. 3.

28 Hen. VIII. c. 15. s. 1.

46 Geo. III. c. 54.

Statutes were necessary *because, by the Common Law, the grand [*359] jury are sworn to inquire only for the body of the county, and cannot, without the help of an Act of Parliament, inquire of a fact done out of that county for which they are sworn.(m)

CCCXXXIII. The exercise of Civil Jurisdiction over foreigners will be chiefly considered under the subsequent title of COMITY.

It will be sufficient to remark here that the Right of Jurisdiction and authority over a merely commorant foreigner, though he be subditus temporarius, does not extend to compelling him to render civil or military services; or to the power of trying or punishing a foreigner for an offence committed in a foreign land. This rule applies even where the offence has been against the State in which the foreign offender is now commorant; and much more forcibly against an extravagant pretension sometimes put forth, to the effect that the general powers of a State extend to punish all wrongdoers wheresoever the wrong may have been done.(n) So long as there are different States with different laws, no single State can have a right to punish, by its own laws, citizens of another State, for offences committed in places over which it has no jurisdiction; or to punish according to what it may conceive to be the law of the place where the offence was committed.

This assumed Jurisdiction is doubly reprehensible:-First, as being a usurpation of the Rights of another State; and *Secondly, as [*360] being a violation of what Heffters justly calls a ruling maxim (herschende Grundsatz) of all constitutional States,-that no man can be withdrawn from the tribunal to which he is naturally and legally subject, and compelled to plead before another.(o)

[*361]

*CHAPTER XIX.

EXCEPTIONS TO THE TERRITORIAL RIGHT OF JURISDICTION.

CCCXXXIV. We have now to consider certain exceptions to the sound and important rule laid down in the last chapter, which is built upon the maxim of the Roman Law, "extra territorium jus discenti impunè non paretur."(a)

9 Geo. IV. c. 31. s. 32.

4 & 5 W. IV. c. 36. s. 22.

Statutes relating to offences committed out of England, in particular places:10 & 11 W. III. c. 25.

59 Geo. III. c. 75.

(m) Stephen's Blackstone, vol. iv. p. 370. (Bk. vi. ch. 18.)

Russell on Crimes, ed. Greaves (1843), vol. i. p. 549. &c. (Bk. iii. ch. 1. s. 6.) (n) Lord Stowell, speaking of slavery, says that it has been suggested to the Court" that this trade, if not the crime of Piracy, is nevertheless crime, and that every nation, indeed every individual, has not only a right, but a duty, to prevent in every place the commission of crime. It is a sphere of duty (he adds) sufficiently large that is thus opened out to communities and their members."-"The Le Louis," 2 Dodson's Adm. Rep. p. 248.

(0) Heffters, s. 36. n. 4.

(a) Dig. ii. 1, 20.

The First class of exceptions to this rule is founded upon long usage and the reason of the thing, and relates principally to the status of Christians in Infidel countries.

So early, indeed, as the sixth century, a derogation from the rule of European International Law began to develope itself.

After the fall of the Eastern Empire, the Code of the Visigoths, not the least remarkable monument of the Middle Ages, conceded to foreign merchants the privilege of being tried by judges selected from among their own countrymen.(b) But after the Ottoman power became established in Europe, Christian nations trading with the territories subject to that power, obtained from it, at different periods, a concession of exclusive authority over their own subjects, nearly identical *with that which the Christians jus commune(c) had conceded to foreign ships of war in their ports.

[*362]

The vital and ineradicable differences(d) which must always separate the Christian from the Mahometan or Infidel, the immiscible character which their religion impresses upon their social habits, moral sentiments, and political institutions, necessitated a departure from the strict rule of Territorial Jurisdiction, in the case of Christians who founded commercial establishments in Ottoman or Infidel dominions.

France, as early as the beginning of the sixteenth century, stipulated that her subjects throughout those districts, generally known as the Echelles du Levant, should be exclusively justiciable in criminal and civil matters before their own tribunals, and according to their own laws; (e) and this privilege has been continued by a series of subsequent capitulations or diplomas of concession.

CCCXXXV. The concessions by the Porte to the British Crown(ƒ) began in the reign of Queen Elizabeth. A Treaty in 1675, (art. 18,) recited that British enjoyed the same privilege as French, Venetian, and other subjects. Orders of council(g) and Acts of Parliament(h) have, at different times, prescribed the manner in which the Crown shall excrcise this jurisdiction. The latest and most important statute, which being one passed in the sixth and seventh years of the present Queen, enables her to exercise any power or jurisdiction which she now has, or

(6) Miltitz, Manuel des Consuls, 1. 1. i. ch. iv. s. 2. p. 161., 1. ii. ch. i. s. 1. p. 4. n. 2. "Dum transmarini negotiatores inter se causam haberent nullus de sedibus nostris eos audire præsumat, nisi tantummodo suis legibus audiantur apud telonarios suos." These Telonarii were in fact Prætores Peregrini.

Montesquieu, Esp. des Lois, 1. xxi. ch. 19.

Amasis (579 A. J. C.) is said to have permitted the Greeks established at Naucratis in Egypt to choose magistrates from their own nation for the decision of disputes among themselves (Herod. ii. 179).

(c) See this phrase frequently in the letters of Sir L. Jenkins which contain responsa upon questions of Public and International Law.-Life, vol. ii. pp. 719-20. (d) Vide antè, p. 82.

Vide post, Consuls.

(e) Ortolan, Dipl. de la Mer, i. pp. 311-14.

(ƒ) Miltitz, t. ii. 779. &c. (1. iii. c. 1. s. v. par. 29.)

(g) Hertslet's Treaties, vol. vi. Orders in 1830, 1839, 1843.

(h) 6 & 7 W. IV.

6 & 7 Vict. c. 94.

hereafter may have, within *any country out of her dominions, [*363] in the same manner as if her Majesty had acquired such power and jurisdiction by the cession or conquest of territory.

Generally, (i) it may be said that the Consuls of Christian Powers residing in Turkey, and the Mahometan countries of the Levant, exercise an exclusive Criminal and Civil Jurisdiction over their fellow-countryThe Criminal Jurisdiction is usually limited to the infliction of a pecuniary fine; in graver cases, the Consul exercises the functions of a juge d'instruction, collecting evidences of the crimes, and transmitting them to the tribunals of their own country.(k)

men.

CCCXXXVI. With respect to British subjects in China,(7) an Order in Council issued on the 13th of June, 1853, which recited that by treaty, grant, sufferance, or other lawful means Her Majesty hath power and jurisdiction over British subjects within the dominions of the Emperor of China, and the same or certain parts thereof have heretofore been exercised, on behalf of Her Majesty, by Her Majesty's Consular officers, resident within the said dominions," (m) and proceeded to make regulations for the administration of civil and criminal justice over all subjects. "being within the dominions of the Emperor of China, or being within any ship or vessel at a distance of not more than one hundred miles from the coast of China."(n) By one of the regulations(o) of this Order it is provided that the Supreme Court of Hong Kong may take cognizance of offences committed by *British subjects within the pen[*364] insula of Macao, but may not issue any writ or warrant to be served therein.(p)

CCCXXXVII. The whole question of the Consular Jurisdiction will be discussed in a later part of this Work, under the title CONSuls.

CCCXXXVIII. The Second class of recognized exceptions, which entitle foreigners who are the subjects of them to be considered as morally without, though physically within, the territorial limits, relate to Foreign Sovereigns passing through, or temporarily residing in the territory of another state; they are held not to be amenable to the jurisdiction, civil or criminal, of its tribunals. They represent the nation of which they are sovereigns, and being permitted to enter a foreign State are entitled, by International Law, to be considered, both as to their own person and effects, and as to those of their attendants, as being still within their own dominions.(g)

(i) Wheaton's Elém. i. 136.

(k) The labourious and valuable work of Miltitz, cited above, contains a mine of historical information upon this subject.

(7) See 3 & 4 W. IV. c. 93.

6 & 7 Vict. c. 80.

(m) See papers laid before Parliament, 1853.

(n) Regulations X. XI. XII. provide for the administration of civil justice in cases where both parties to the suit are British subjects, or where one is a British and one a Chinese subject.

(p) As to Persia, see Miltitz, i. 777, &c. (l. iii. c. 1, s. v. par. 29.)

(0) XLV.
Hertslet's Treaties, i. 408.

De M. et De C. v. 153. Traité entre Gr. Bretagne et Perse, Téhéran, 28 Oct.

(2) Vide post, Chapters on the subject of SOVEREIGNS and AMBASSADORS.