THIRD READING. (Hansard, 15 August 1878)

§ SIR GEORGE BOWYER,
in rising to move that the Bill be read the third time that day three months, said, it was one which made a most material alteration in the law of England, and which greatly affected the rights of foreign countries over a portion of the seas. He was rather surprised that such a measure should have been read a second time on the previous Saturday, when it was understood that the House was to meet solely for the purpose of discussing the Irish Sunday Closing Bill. It must have been unexpectedly read a second time on that occasion, because his hon. and learned Friend the Solicitor General, who had charge of the measure, was not present. He (Sir George Bowyer) had also to complain that it passed through Committee when discussion was absolutely impossible—he meant at 3 o'clock in the morning. They were now upon the third reading; and he thought the House would allow him, very briefly, to state certain points of law, which, he thought, ought to be considered by the House before the Bill was passed. In doing so, he would endeavour to take up as little time as was compatible with the importance of the subject. He would divide what he had to say under two heads. First, he should show that the Bill was not necessary; and, secondly, he would endeavour to show that the Bill was a contravention of the law of nations, and was unnecessary, because the law of England, as it 2027 stood at present, was fully sufficient without any fresh legislation. He would begin by stating what the law of England on the high seas now was. That portion of the sea between high and low water mark, when not covered with water, was within the jurisdiction of the ordinary coroner; and all that portion of tidal ports, estuaries, and rivers, which was partly inclosed by the territory of England, was within the counties to which it belonged, and was a portion of the realm of England. Beyond the low water mark, and over the whole of the high seas, there was the jurisdiction of the High Court of Admiralty; and offences committed at sea were triable by the Court of Admiralty and the Central Criminal Court. Speaking generally, this was the chief jurisdiction of the Court of Admiralty. The Court of Admiralty, of course, had jurisdiction over all British ships and also in cases of piracy, which were offences against all nations. But the Admiralty Court had never claimed jurisdiction over foreign ships outside those parts of the sea which wore partly inclosed by land, and which he had described. He said that the jurisdiction already vested in the Admiralty was fully sufficient to punish all offences committed on the high seas—that was to say, below high water mark—and therefore the Bill was unnecessary. He should be told, perhaps, that the Franconia case rendered it necessary that some legislation should take place. That he positively denied. What was the case? It was one of collision between an English and a foreign ship on the high seas—that was to say, within three miles of the English shore; and therefore, under the ordinary law of nations, would be within the international jurisdiction of the country off whose coast it occurred. In that collision an Englishman lost his life, and the captain of the Franconia was indicted for, and convicted of, manslaughter. A point, however, was reserved for the Court for Crown Cases Reserved, and the majority of the Judges held that the conviction was bad. He was now told that, on account of the decision, some legislation was necessary—that it showed a defect in the law of England—that it showed a wrong which wanted remedying, as offences might be committed which England could not punish. He entirely differed from such an opinion. If a Frenchman killed an 2028 Englishman in Calais, the offence would not be within the cognizance of the law of England, and the Frenchman could not be tried in England, even if brought here. Then it might just as well be argued that the state of the law in that instance was a reason for bringing in the Bill for the purpose of extending English jurisdiction to Calais, or the whole of the French coast, as to say it was necessary to make an alteration because of the Franconia case. Instead of, in such cases, trying to extend the law of England, the proper course to pursue was to represent to a foreign country that a British subject had been injured out of the jurisdiction of the English Courts, and call upon the foreign country to deal with the person who committed the offence. It was a well-known principle of International Law that if a citizen of one country committed an offence against a citizen of another, and which could not be considered by the Courts of the country to which the injured person belonged, that was a reason for applying to the Government of the country to which the offender belonged, and requiring the Government to see that he was properly punished. If justice were refused in a case of that sort, that would be a sufficient justification for war. Let the House look at the Franconia case. After the conviction had been quashed in England, he believed the captain was tried in Germany, and his impression was that he was convicted. But what was complained of was that he could not be convicted in England. He (Sir George Bowyer) agreed that he ought not to have been, and he insisted that the proper remedy in the case was by representation to the German Government, and not by proceeding in the English Courts. Wherever the English Courts ought to have jurisdiction on the high seas the jurisdiction of the Admiralty Court was fully adequate for such cases; and where the criminal law of England did not apply now, there should be no alteration made, as proposed by the Bill; but recourse should be had to the country to which the offender belonged. He maintained that the law was perfectly clear. From time immemorial the law of England had been as he had stated it, and he could not conceive how in 1878 it was only just found out that it was insufficient, and that fresh 2029 legislation was necessary. Having disposed of that question, having shown that the law of England was at present fully adequate for the administration of justice on the high seas, he came to his second point, which was that the Bill was inconsistent with the law of nations, and with the rights of foreign countries. His hon. and learned Friend the Member for Chatham (Mr. Gorst) brought in a Bill which, in substance, was the same as that now before the House, and in a debate which took place on the Bill the hon. and learned Gentleman the Attorney General spoke. He found, in Hansard, that the hon. and learned Gentleman was reported as follows:— He admitted that owing to the state of the law, it had teen declared by the Court of Appeal, it might be desirable to legislate on this subject; but he thought that before such legislation was embarked upon, it would be wise and politic to consult the principal States of Europe. In a subsequent part of the speech, quoting again from Hansard, he found the hon. and learned Gentleman said— He thought that before we embarked upon legislation it was essential that there should be some sort of agreement among the principal nations of the world with regard to the subject."—[3 Hansard, ccxxxiii. 1402.] No doubt, the hon. and learned Gentleman saw very clearly that the Bill was one which might be held to infringe the rights of foreign subjects and the liberties of the seas, and therefore he said it ought to be a matter of international arrangement before England attempted to make a law which would be binding upon foreigners. He was ready to admit that there was a general concurrence amongst the nations of Europe that the three-mile zone was within the jurisdiction of the country off whose shores the ships then were. But the question was what that jurisdiction consisted of, and what the nature of that jurisdiction was. That jurisdiction was of a very peculiar nature, and not such as was sought to introduced by this Bill. It was not such jurisdiction as existed in the country, or as might be exercised in ships lying in ports, or creeks, or other partially inclosed portions of the sea. It was such a jurisdiction as might be exercised on the high seas— that was to say, the jurisdiction of the Court of Admiralty which existed now, and which had always been found sufficient for the purposes in- 2030 tended. That jurisdiction must be taken and interpreted as subject to the rights of other countries, and as subject to the freedom of the sea. According to the law of England, every foreigner who was in this country owed what was called a qualified allegiance to the Crown. He owed that allegiance in consideration of the protection which he received from the Crown while he was in this country. If the present Bill passed, it must follow that the crew of every foreign ship passing within three miles of the shore would hold that qualified allegiance to the Crown. It could not be said that the Crown gave them any protection, and yet they would be in the same position as if they were within the realm of England. No doubt, every country had jurisdiction over the seas so far as was necessary for the defence and security of its dominions; but it did not appear that the jurisdiction which this Bill created over foreign ships and foreigners on board them was necessary for the defence and security of the realm. If it could be shown that the defence and security of the realm required that the Courts of England should have criminal jurisdiction over the ships of foreign countries and the subjects of foreign countries on board them, he should then say his hon. and learned Friend had made out a case, and he would offer no opposition to the Bill. But could it be said that if, on board a foreign ship passing within the three-mile zone, a foreign sailor committed murder, the defence and security of England required that the offender should be tried by the law of England? Certainly not; and the real remedy for such an offence was that the man should be tried in his own country. There was a principle established that on the high seas every foreign ship was ex-territorial—that was to say, the persons on board were governed by the law of the mother country. That being so, he said there was no authority, and he defied his hon. and learned Friend to show any authority of International Law, much less of the law of England, to support the jurisdiction sought to be created by the Bill before the House. He would call the attention of the House to what was said on this subject by the Lord Chief Baron in the Court for Crown Cases Reserved, in reference to the Franconia case. The Lord Chief Baron said— 2031 The right to seize and try in England for an offence committed on the high seas by the foreign commander of a foreign vessel, can, in my opinion, no more exist than the right to seize and try in England any foreigner for an act done in his own country. Of course the House would not for a moment entertain the idea of passing a law making a man who had committed an offence against a British subject in Calais liable to be tried in England, and yet the Lord Chief Baron said that was exactly the same as trying a foreigner for an offence committed on the high seas on board a foreign ship. If an Englishman and a Frenchman fought a duel in France, and the Englishman was killed, there was no jurisdiction to try the Frenchman in England for duelling. He would only be liable to his own country. The same, if a fatal fight occurred on board a ship within the three-mile zone. The only course to pursue if an Englishman was killed would be for the English Government to make a representation to the French Ambassador, and the man who killed the other would be dealt with by the law of his own country. The Lord Chief Justice laid down very much the same principle as the Lord Chief Baron. The Lord Chief Justice said that by the law of every nation, a ship, when on the high seas, carried the law of its own nation with it; and his Lordship showed that, in such cases as that of the Franconia, the three-mile zone was part of the high seas. His Lordship added that the right contended for—that was to say, the jurisdiction of the Courts of England over foreigners and foreign ships—never was the subject of any International Treaty, and there never was a Treaty which gave England the jurisdiction which the Bill before the House would give. Well, as part of his argument against the Bill, he must refer to an answer given to him by the Chancellor of the Exchequer. He asked the right hon. Gentleman, whether any communication of the contents of the Bill had been made to foreign Governments, or vice versâ? He was told that no communication had been made to, and no communication had been received from, any nation on the subject. He (Sir George Bowyer) considered that a serious matter for the attention of the House. Here it was proposed to give the Courts of England common law jurisdiction over foreigners and foreign 2032 ships within the three - mile zone, as they were passing along, exactly the same as if those foreigners were on shore in England. Could the Government legislate in that way? Could they pass a Bill binding upon foreigners? He questioned whether foreigners would acquiesce in or submit to such a law. The Lord Chief Justice of England had said that even if we legislated for the three-mile zone, the law would not be binding upon the foreigner; and he (Sir George Bowyer) thought there was great danger and inconvenience in passing a law which, after all, people would not be liable to. We could pass laws for English people, but we made a mistake in trying to deal with foreigners. The Bill would actually make the three-mile zone British territory—as much as any county in England—and that being so, England could even, under the Bill, prevent foreign ships passing within the three-mile zone. But if we did that, it would be a gross violation of the liberties of the seas, and every nation in the world would protest against it. He had no doubt that if a case came before any of the Courts under the Bill, that they would say the effect of it was to make the three-mile zone English territory. The three-mile zone was a considerable portion of the sea, and to deprive foreign countries of the use of such a portion would never be tolerated. Were we prepared to allow the same jurisdiction in the case of other countries all over the world? Were we prepared to allow, even in the case of China, that a British ship, going within three miles of the shore, was liable to the laws of the country, and for some offence, real or pretended, an Englishman might be dealt with by the laws of the country? We had no right to make any distinction in these matters between civilized France and China or Japan. It might be either of them, and the law given by consent to one country must be meted out to all alike; because, for certain, if England claimed jurisdiction over foreign ships within three miles, foreign countries would do the same over British ships. But he was told that no prosecution was to be commenced under the Bill save with the authority of the Secretary of State, and that was supposed to be an answer to the difficulties he had urged. It seemed to him, to say the least, a novel way to legislate—to pass an im- 2033 portant Act, and then say the Secretary of State should consent to everything done under the Act. Was it right or proper that the House should relegate its authority to the Secretary of State, give him the power to do that which was wrong, and then say he acted on his own responsibility, and might take proceedings or leave them alone, as he pleased? If the thing was wrong, the Secretary of State ought to have no authority; and if the Bill provided that which was in accordance with the law of England and the law of nations, let it be passed without any discretion vested in the Secretary of State. But the House must be careful not to pass an Act which was a contravention of the law of nations and of the liberty and freedom of the seas, and then say no harm would be done, as the Secretary of State was to have a veto under the Bill, and nothing could be done without his consent. This was a law affecting third parties—foreign countries—and he insisted that no discretion ought, in such a matter, to be given to the Secretary of State. Then there was another point under the Bill, with which he must trouble the House, as it was one of great importance. He had given his opinion on the point to his hon. and learned Friend the Solicitor General; but he did not agree with him, nor did the noble and learned Lord (the Lord Chancellor), who coincided with the Solicitor General. Of course, he (Sir George Bowyer) had the deepest respect for the opinion of his noble and learned Friend the Lord Chancellor, and for that of his hon. and learned Friend the Solicitor General; but, at the same time, he must confess that his opinion remained unchanged. He had come to the conclusion that the provisions of the Bill would include foreign ships of war as well as merchant ships. A ship of war was exterritorial everywhere; because, if a vessel of war was in a British port, and an offence was committed on board her, the law of England would have no authority over the offender. The offence so committed on board a foreign ship of war must be dealt with by the law of that country and not by the law of England. What did the Bill provide?— Any offence committed by a person, whether he is or is not a subject of Her Majesty, on the open sea, within the territorial waters of Her Majesty's Dominions, is an offence within the 2034 jurisdiction of the Admiral, although it may have been committed on board or by means of a foreign ship. His impression was that the clause would include a foreign ship of any kind, whether it be a man-of-war or merchant ship. He found, by the Interpretation Clause, that "offence" was denned as any offence within the law of England, and ship as every description of ship. What could be wider than that? And as to a foreign ship, it was defined as "any ship which is not a British ship." Could anything wider be conceived? A foreign ship of war was not a British ship, and, therefore, it must come within the meaning of the Act. He could not see how his hon. and learned Friend could get out of the difficulty. If he entered into any argument on the point, notwitstanding his legal acumen, he would not alter his (Sir George Bowyer's) opinion. He had consulted his noble and learned Friend (Lord O'Hagan), who was one of the highest authorities on the matter, and his noble and learned Friend had said it was quite clear that a ship of war belonging to a foreign Power would be included within the meaning of the Act. That being so, he thought he was justified in mentioning these objections to the Bill to the House; and he hoped, after hearing what the hon. and learned Solicitor General had to say on behalf of the measure, that the House would agree to his Amendment. The hon. and learned Baronet concluded by moving the rejection of the Bill.

§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)
said, that the hon. and learned Baronet had had an opportunity of fully explaining his views on this subject the other night, when he (the Solicitor General) believed he had used the same observations that he had done on the present occasion.

§ SIR GEORGE BOWYER
The case came on at 3 o'clock in the morning, and there were only seven persons present.

§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)
said, although that 2035 might be the case, it was not his intention to detain the House by any lengthened statement in reply to his hon. and learned Friend. He would only say that the Bill was urgently demanded, that it was a very simple one, and it was rendered necessary in consequence of the decision of the Court for the Consideration of Crown Cases Reserved in the Franconia case. He (the Solicitor General) had had to argue that case before that Court for several days, and probably the House would not desire that he should repeat his arguments to them at this period of the Session. The conviction in that case was quashed by a majority of 1; but Mr. Justice Lush pointed out that Parliament had full powers to legislate with regard to offences committed within the three-mile zone. The measure did not interfere with the principles of International Law in the smallest degree; on the contrary, its object and effect would be to bring their municipal institutions into harmony with International Law, and enable them to exercise a jurisdiction which was absolutely necessary for the safety of the inhabitants of this country. By the decision in the Franconia case, which must now be accepted as the law of England, the waters washing the shores of this country below low water mark must be taken to be out of their jurisdiction, and consequently the life and honour of any British subject bathing at the sea side —say, of a schoolgirl at Brighton or elsewhere—would be at the mercy of any foreigner on board a foreign ship who chose to take it. But the hon. and learned Member for Wexford had said that in such cases we must apply diplomatically to the country of which the foreigner was a subject, and get that country diplomatically to interfere. Anyone who had paid attention to the decision in the Franconia case would see that a foreigner committing a crime one inch below low water mark was out of the jurisdiction of this country. In order to create a jurisdiction, the person committing a crime in the neighbourhood of these shores must be a subject of this country; and the Bill had, therefore, been introduced for the purpose of affording proper protection to British subjects. As to the remark that foreign nations would interfere if this Bill passed, he held in his hand instructions which had been given by the German Govern- 2036 ment to the commander of a gunboat to take into custody any person not a German who ventured to fish within a distance of three miles from territory of the North German Confederation. That was a proof that that country claimed, like every other, the jurisdiction that was to be made unmistakeable by the Bill This Bill would effect a proper and wholesome alteration of the law, and considering that the noble and learned Lords who had discussed the question in the Upper House had expressed their opinions very strongly in its favour, he was surprised that his hon. and learned Friend should have stated that it violated all principles of International Law.

§ MR. MUNTZ
apprehended that the passing of the Bill might lead to serious difficulties and complications between this country and foreign Powers; but, at the same time, he thought that some measure should be passed on this subject. The only redeeming feature in the measure, and one he hoped which would be strictly observed, was the provision enacting that no action with regard to the Bill would be taken without the sanction of one of Her Majesty's principal Secretaries of State.

§ DR. KENEALY
said, that it was much to be lamented that the hon. and learned Solicitor General had not condescended to answer the powerful legal arguments of the hon. and learned Baronet the Member for Wexford (Sir George Bowyer). Nobody could suppose that it was from want of skill or ability. His silence, therefore, remained without explanation. He had, indeed, spoken a few words, but had not in the least grappled with the subject; apparently taken it for granted, as had been so often done on the Treasury Benches, that to bring in a Bill was enough, and that it would be carried through the House, no matter what was said against it. He (Dr. Kenealy) begged very briefly to put the matter before the House as it presented itself to his mind. From time immemorial the law as to the three-mile zone had existed, and not a single instance had been cited where the law had worked any inconvenience. By the comity of nations, if any wrong was done within that zone, for which our own law did not provide, it had only to be referred to the foreign Kingdom of which the wrong-doer was 2037 a subject, and the wrong was redressed as a matter of course. In the case of the Franconia, it had been stated by the hon. and learned Baronet and not denied, that the sailor who by the law of England was acquitted here for want of jurisdiction, had been tried, convicted, and punished by his own tribunals; and that had always, as he (Dr. Kenealy) understood, been so, and, no doubt, would continue. That being the state of things, of what possible use was that new law? Laws were passed to provide against wrongs; but here there had always been a remedy afforded by foreign States. It was not wise to load the Statute Boob with laws that were not needed. The Government, however, seemed to have set their hearts upon that new measure. They passed the second reading at 3 o'clock in the morning, when only seven hon. Members were present; and now they would hardly discuss it, on the plea, of which he did not see the force, that despatch was requisite. He (Dr. Kenealy) was wholly opposed to legislation conducted on such principles. The hon. and learned Solicitor General had offered, as almost the sole apology for his Bill, that Mr. Justice Lush had thrown out some suggestion to that effect, when the case was argued before the full Court. But Mr. Justice Lush could not be regarded as being responsible for that particular measure, which he had probably never seen; and whose provisions might at any time involve them in dangerous complications with foreign States. The hon. and learned Baronet had proved unanswerably that the words "foreign ship" included a ship of war. No legal tribunal could decide otherwise, if the matter were before them. They would decide according to reason and the English language, and shift all responsibility from themselves by throwing it on to this House. Let them suppose, then, an outrage on an English subject, a breach of criminal law, committed by a sailor on board a Russian or United States ship of war, within the three-mile zone. Were they prepared to board that ship of war, and. arrest the foreign sailor by force? That was what that Statute authorized them to do. He viewed with apprehension the difficulties into which they might plunge, if they were to carry out such a provision. Yet the hon. and learned Solicitor General 2038 had not even alluded to that dangerous possibility. He regretted that the hon. and learned Baronet had promised not to divide the House; if he had done so, he (Dr. Kenealy) should certainly have voted with him.

§ SIR WILLIAM HARCOURT
said, he was quite at a loss to understand upon what sort of a foundation the hon. and learned Baronet (Sir George Bowyer) made an objection to the Bill. The Bill was simple enough, and he believed that any person who had read any International Law would know that it would carry out principles perfectly well settled, and on which no doubt ever existed in the mind of any international lawyer. The effect of the decision in the Franconia case was not that the jurisdiction did not exist, but that there had not been a proper machinery created by our municipal laws to carry it out, and this Bill was merely intended to cure that defect. He did not believe that any nation in the world had ever entertained the smallest doubt as to its jurisdiction within the three-mile limit.