TERRITORIAL WATERS JURISDICTION BILL— [Lords]— [BILL 137.] (Hansard, 12 August 1878)

§ SIR GEORGE BOWYER
said, that he much regretted that the Bill had been so placed on the Paper that it was impossible to have a fair discussion of it. He had not expected that the Bill would be taken that night, nor did he believe that his hon. and learned Friend the Solicitor General thought it was likely to come on. Three o'clock in the morning was a very improper time to enter upon the discussion of a Bill involving such momentous questions as this, violating, as it did, the rights of foreign nations, and, as he was told, 1857 being directly in opposition to the opinion of foreign countries. The Bill was perfectly unnecessary, for he considered that the law of England, as it at present stood, together with the good relations that now existed between nations, were quite sufficient to accomplish the purpose aimed at by the measure. It reversed the solemn decision of the Judges in the Court for Crown Cases Reserved in the case of the Franconia, and, therefore, it was a matter of very great importance. The effect of the Bill, as it now stood, would be to give a jurisdiction to the English Courts over all foreign ships within three miles of the shore of England, whether they were ships of war or merchant ships. The principle of the law of England was that the jurisdiction of the Admiralty commenced at low water mark, and that only the Court of Admiralty had jurisdiction there; but by Statute, Judges of Assize had jurisdiction in the space between high and low water mark — that was to say, there was a jurisdiction to that extent in the Common-Law Courts. Thus, at high water, the Admiralty had jurisdiction over the fore shore; but at low water, the ordinary Courts exercised authority up to the limit of the strand left bare by the sea. In running-down cases, the matters were dealt with by virtue of the good relations which existed between various nations. In the case of the Franconia, the man who was charged with the running down was tried in his own country for the offence, and it was thereby clear that there was no need for this legislation. He ventured to say that if any foreign ship did any injury on the high seas, a remedy would be afforded to this country by the nation to which the captain of the vessel belonged; and, therefore, no change of the law was necessary to meet this case. No doubt, the ordinary rule of International Law was that every country had jurisdiction within three miles of its own shore. That, he admitted, was the principle laid down by the authorities on International Law, who held that a jurisdiction was exercisable by any particular State within a certain distance of its own shores, wherever the safety of such State rendered it necessary. Thus, any country had a right to provide for its own safety by exercising a certain jurisdiction over the sea near its own shores, and over the ships within that limit, in such 1858 particulars as were necessary for her safety, and came within the range of International Law. But it was unnecessary for the safety of any country that its Courts should have jurisdiction over the sea within three miles of the shore in ordinary criminal cases. He did think, therefore, that this Bill was founded on a misapprehension of the rule about the three miles' distance—that the Bill was unnecessary, and that it was calculated to bring this country, as it would bring it, into difficulties with foreign nations. It was true that there was a clause in the Bill providing that no proceedings should be taken against persons other than Her Majesty's subjects without the permission of the Secretary of State; but that clause showed the weakness of the measure. It was an admission that the Bill was contrary to the rights of other nations. Therefore, to provide that no proceedings should be taken against foreigners without the previous permission of the Secretary of State was not sufficient, for a Public Bill should be so framed as not to violate the rights of foreign countries; it should only be framed within the limits which International Law had laid down as the jurisdiction of a country. It was not right to go beyond that, and attempt to give jurisdiction to the ordinary Courts in cases where it was not required for the safety of the country, and where International Law was against the exercise of such jurisdiction. By so extending the jurisdiction to Criminal Courts, the principles of International Law were really violated. Last Session, the hon. and learned Member for Chatham (Mr. Gorst) brought in a Bill like the present, and the hon. and learned Solicitor General then very properly said that such a Bill ought not to be introduced without previous communication with foreign countries—and in the earlier part of the evening the Chancellor of the Exchequer had told him that no such communication had taken place — and obtaining their consent to its passing. In his opinion, the wisest course for Her Majesty's Government to take would be to withdraw this Bill and re-consider the Motion; and, if necessary, to introduce another Bill next Session, after communications with some of the principal foreign nations. He would not say more at that early hour; but would reserve any further observations to the third 1859 reading. He was afraid, if the Bill passed in its present form, it would be found to give rise to considerable difficulties with foreign countries.

§ SIR GEORGE BOWYER
said, that its effect would be to include a ship of war as well as a merchant vessel. By the law of nations, every ship of war was part of the territory of the country to which it belonged. Supposing an offence were committed on board a ship of war, and steps were taken to punish the criminal according to the law laid down by this Bill, it would be, in effect, a violation of International Law. It was no answer to say that the Secretary of State might not possibly allow such steps to be taken, nor was it any answer to the objection to the clause on the ground that it was contrary to the principles of International Law to say that an offence committed on board a ship of war belonging to a foreign country would not be cognizable by the English Courts, for the Bill already made it so. The effect of the clause, therefore, was to violate the principles of International Law, and it was desirable that at some future stage of the Bill this should be remedied. That could be done by making the only offences cognizable by the English Courts such as were committed on board any foreign ship, or by the crew of any foreign ship not being a ship of war. Such a Proviso would render the clause less objectionable, and he, therefore, begged to move that as an Amendment to it.

§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)
observed, that the Amendment was unnecessary, and might imperil the passing of the Bill. The Bill did not affect to deal with any principle of International Law, and he might observe that such authorities as the Lord Chancellor, Lord Selborne, and Lord Hatherley agreed in the opinion that a foreign ship of war was not included by the definition given in the clause.

§ SIR GEORGE BOWYER
was not aware that the point had yet been raised; but he considered it unquestionable that 1860 the words "foreign ship" included a ship of war. By the Interpretation. Clause, it was provided that "foreign ship" should mean any ship that was not a British ship. It was all very well to say that International Law would operate to prevent any breach of its own rules; but there would be an Act of Parliament expressly to override it. The Judges would have the words of the Act of Parliament before them, and not the rules of International Law; and supposing that there were words in the Act of Parliament which, in their opinion, included foreign ships of war, they would have to give effect to them. He maintained that a Judge would have to decide on the words in the English Act of Parliament, and would have no power to say that the rules of International Law overruled an Act of Parliament.

§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)
remarked, that the same observation would apply to every Act of Parliament. Surely the hon. and learned Member could not consider such a position tenable.

§ SIR GEORGE BOWYER
said, that the case cited by the Solicitor General was not pari materia. Clearly, if the term "French ship" were used, it would mean every French vessel, whether a ship of war or not. Even with regard to a merchant ship, there was a principle of law that it was ex-territorial, though in a minor degree to a ship of war. Let them take another case. If an Act of Parliament prescribed certain regulations with regard to all foreign houses in this country, that would apply as well to the houses of Ambassadors as to others. The Judges, in such a case, would not be at liberty to hold that the rules of International Law prevailed, and exempted the houses of Ambassadors from the operation of the Act of Parliament.