enactment, and such an extension either of its jurisdiction or of its law will necessarily be given effect to by its own Courts so far as their powers extend. But in so far as it transcends the international limit, it will not, in general, be recognised externally, or be given effect to by the Courts of other States; whilst if it should affect prejudicially the subjects of other States, then this may conceivably provoke remonstrance or intervention.

Jurisdiction and Law primarily Territorial.-Every State is deemed to possess an exclusive power of making law and an exclusive right of jurisdiction within its own territory (b). This principle, which lies at the very root of the whole State system, has both a positive and negative aspect. On its positive side it means that the laws and jurisdiction of a State will be deemed to extend to all persons and things found, and, as regards acts, to all acts done, within its territory, including in this term its ports and territorial waters; as well as on its public vessels everywhere and its private vessels on the high seas (c). On its negative side, it means that one State cannot by its laws or by any exercise of jurisdiction on the part of its Courts bind directly persons or things found, or take cognisance of acts done, within the territory of any other State. But this principle is subject to a number of exceptions, both on its positive and negative side.

Exceptions to Territorial Principle.-The more important exceptions to the territorial principle may, for our present purposes, be grouped under three categories: (1) By the common usage of nations, and in accordance with the doctrine of exterritoriality, certain persons and things found in the territory of one State are withdrawn from the jurisdiction and from the operation of the laws of the territorial Power, and relegated to those of the Power to which they belong. The subjects and limits of this group of exceptions will be considered hereafter (d). (2) Nearly all States, moreover, claim within certain limits, which vary greatly in different systems, to make their territorial law binding on their subjects even when outside their own territory or within the territory of some other State, and to exercise all consequent jurisdiction in as far as this can be done without violating the sovereignty of the territorial Power; whilst some States, as we have seen, claim to extend their law and jurisdiction even to acts done by foreigners, and within the territory of a foreign State. Such a jurisdiction, however, has, it would seem, no international sanction; and depends for its efficacy on the law of the State by which it purports to be assumed. And, although one State will not generally interfere with another State in so far as the latter applies its domestic law to, or exercises jurisdiction over, persons who are its subjects and within its control, yet other States will not in general lend any aid to the exercise of such a jurisdiction-e.g., by a grant of extradition, nor will it be recognised or given effect to by the Courts of other States. If exercised over foreigners, moreover, it may, as we have seen in Cutting's Case, provoke intervention on the part of States whose subjects are affected. The extent of this extra-territorial jurisdiction and operation of law varies in each

(b) For recognition of this, see arts. 24, 25, 60, and 76 of the Peace Convention, 1907.

(c) The latter jurisdiction may per

haps be styled quasi-territorial

(d) See p. 258, infra.

particular municipal system. Its extent in English law in cases of crime has already been touched on, whilst its extent in civil cases will be considered hereafter. (3) Finally, it is necessary to mark and distinguish another class of cases, purely civil in their character, in which either an extra-territorial jurisdiction or an extra-territorial application of law is exercised or conceded by virtue of a body of principles which are recognised and followed by the Courts of all civilised States, and which constitute indeed in civil matters a kind of common law of the civilised world. Although these principles, which are commonly known as Private International Law, strictly constitute a kind of supplement to the territorial law of every civilised State, yet they really rest on a basis of comity and mutual convenience, and possess in some degree an international character. In deference to these principles we find that the Courts of one State sometimes give an extraterritorial effect to their own domestic law, whilst at other times they concede an extra-territorial effect to the law of some other State; and the same applies also in the matter of jurisdiction. The nature and operation of these principles, in so far as they fall within the scope of this work, will be discussed in connection with the case next following. Legal and Jurisdictional Units.-In general the units of international law are States, and it is to the relations of independent States that the principles previously indicated are specially applicable. It needs to be noticed, however, that in relation to the question of the operation of law and the exercise of jurisdiction every country which possesses a separate legal and judicial system is regarded as a separate unit, even though in other respects it may be politically dependent on or form part of a larger union. In most cases, indeed, the area over which the Sovereign rules is co-extensive with the area over which the Courts have jurisdiction; there is one system of law and one system of judicature for the whole State; and in such cases the State constitutes at once the international and the jurisdictional unit. But in other cases it may happen that a State is made up of a variety of countries and areas, each of which, although ultimately subject to some common authority, has its own system of law and its own system of judicature. The complex organisation of the British Empire in this respect has already been described. From this it will be seen that, so far as concerns the operation of the territorial law and the exercise of jurisdiction, not only do England, Scotland, and Ireland, as well as the more important colonies and dependencies, constitute separate units; but the law and jurisdiction of each is regarded as "foreign" in relation to any other, except in so far as this is affected by imperial legislation or by the existence of common Courts of Appeal (e). So, again, in the United States of America each of the various States composing the union, although subject to federal legislation and authority in matters prescribed by the constitution, yet possesses its own legal and judicial system; and the law of one State is regarded primarily as 'foreign in the Courts of other States. And the same observation applies to the various States composing the Commonwealth of Australia, subject, however, to such limitations as are imposed either by imperial Act or by the federal Parliament within the limits of the constitution.

(e) P. 223, supra.

In the case of the Commonwealth of Australia and the Dominion of Canada, indeed, there are three sets of authorities the Imperial, the Federal, and the State each occupying, either by convention or by law, a separate sphere. As between countries which form part of the same State, the doctrine of exterritoriality has of course no application (f); nor can the assumption of an extra-territorial criminal jurisdiction give rise to questions such as may occur between independent States (g). Moreover, the exclusiveness of the local lawmaking power and the jurisdictional right is often modified by the legislation of some paramount authority. If, however, allowance be made for these considerations, then the general principles governing the territorial competency of the Courts and Legislatures of independent States would appear to be equally applicable to all countries that possess a separate legal and judicial system.

The Question of Jurisdiction and Law in Criminal Cases.—In criminal cases, as we have seen, the question of competency in the matter of jurisdiction and the question of what law shall be applied are commonly identical; for the reason that the Courts of one State will not generally either recognise or enforce the criminal or penal law of any other State (h). Once, therefore, there is jurisdiction in a case of crime, then the national law, and that only, will be applied. The question of jurisdiction is primarily a matter which each State settles for itself, and the grounds upon which jurisdiction is claimed in criminal cases vary greatly in different systems of municipal law. All States alike will exercise jurisdiction over offences committed within their territory. Some deviate from this only in a limited class of cases; others assume a wide personal jurisdiction over their subjects even when outside the State territory, and refuse on this ground to surrender subjects who may have committed offences within foreign territory; whilst others, again, claim, under certain conditions, to exercise a general jurisdiction over offences committed by foreigners even on foreign soil. Although the question of criminal jurisdiction is for the most part a question of municipal law, yet it has, as will be seen by reference to the cases of Vogt and Cutting, at certain points an important bearing in the domain of external relations. In general, it would seem that it is only the territorial claim which is entitled to external recognition; or, at any rate, that this claim is to be preferred in the case of competing claims (i).

Practice of particular States with respect to Criminal Jurisdiction. -In view of its possible bearing on external relations, it may be profitable to glance briefly at the practice of States in this matter. Some States, such as Great Britain and the United States, act primarily on the territorial principle, and confine their criminal law and jurisdiction to offences committed within their territorial limits, except in so far as such jurisdiction may, in particular cases, be extended by positive enactment (k). Some States, such as Russia, Austria, Italy, Norway, many of the German States, and some of the Swiss cantons, claim a general criminal jurisdiction over their nationals, even though resi

(f) Infra, p. 258.

(g) Supra, pp. 230, 233. (h) Supra, p. 223.

(i) Infra, p. 252.

(k) See p. 227, supra.

dent abroad, and this whether the offence be against the State itself, or against fellow nationals, or foreigners. France, however, would seem to limit the exercise of this jurisdiction over its nationals to "" crimes committed either against France or against Frenchmen in a case where complaint is made locally by the injured party. The exercise of such a jurisdiction over nationals is generally contingent on the return of the offender within the territory of the State to which he owes allegiance, although proceedings are sometimes allowed to be taken par contumace; and it does not usually affect external relations or give rise to international questions (1). This system has, however, led to the undesirable practice of embodying in extradition treaties a clause exempting States from the obligation of surrendering their own subjects (m). Some States, again, claim a criminal jurisdiction over offences committed even by foreigners and on foreign soil, although this pretension varies greatly in its scope. France, Germany, Austria, Italy, Spain, Belgium, and Switzerland appear to limit this to offences committed against the safety or high prerogatives of the State, in which case, if the offence has produced local effects, its seat may perhaps be regarded as local. Russia, Italy, Mexico, Greece, and the Netherlands extend it to offences of a certain gravity, committed against their own subjects. Austria and Italy claim to take cognisance of offences committed by foreigners on foreign soil, which affect neither the State nor its subjects, so long as the offender has been arrested locally and an offer of extradition has been refused; a practice which makes a near approach to a cosmopolitan theory of criminal jurisdiction, as distinct from that which is merely territorial or personal (n). The actual exercise of jurisdiction in such cases is subject to the condition that the offender shall have been arrested locally, for the reason that such claims would not generally constitute a good ground for a demand for extradition; and that he shall not previously have been tried elsewhere.

The Disadvantages of the Extra-territorial Principle in Criminal Cases. Nevertheless the system under which a criminal jurisdiction is claimed or exercised by a State over offences committed outside its territory is, for the most part, and saving certain necessary exceptions (o), at bottom a bad one. It tends to obstruct or impede the course of justice by making the prosecution of crime difficult and expensive, owing to need of transporting witnesses and proofs to another country than that in which the crime was committed. By dissociating punishment from the locality of the offence, it also tends to diminish its deterrent effect. Nor is it commonly necessary; for the reason that the escape of the offender to another country can generally be met by a

(1) But for a possible exception to this, see p. 231, supra.

(m) As to this, see p. 251, infra; and Scott, p. 293 n.

(n) On the subject generally, see Hall, 219; Moore, ii. § 201; and Taylor, 240.

(0) As where the offence is com

mitted in territory not occupied by a civilised Power, or where the act done outside the territory depends for its character on some act previously done within the territory, or where the offence affects the safety or public order of the State exercising jurisdiction.

proper system of extradition (p). It is also anomalous, for the reason that whilst it rests in some measure itself on a territorial basis-viz., the presence of the offender within the territory-it is really subversive of the territorial principle. Finally, as was pointed out in Cutting's Case, it is a system which, when applied to offences committed by foreigners in foreign territory, is open to grave abuses (q).

CIVIL JURISDICTION AND LAW OF A STATE.

SIRDAR GURDYAL SINGH v. THE RAJAH OF
FARIDKOTE.

[1894; A. C. 670.]

Case.] THIS was an appeal in an action originally brought by the Rajah of Faridkote (the present respondent) against Sirdar Gurdyal Singh (the present appellant) in the Indian Courts. The action was itself based on certain judgments previously obtained by the plaintiff against the defendant in the Courts of Faridkote. Faridkote is a native State of India, which is under British protection but does not constitute an integral part of the British dominions, and which possesses, therefore, those attributes of an independent State, such as the right of enacting its own laws and exercising jurisdiction through its own Courts, which are compatible with protection and political dependence. The defendant had been treasurer of Faridkote, and was alleged in that capacity to have become indebted to the plaintiff in certain large sums of money. After the defendant had ceased to be treasurer, and had left Faridkote and become domiciled in Jhind, another protected State, the plaintiff instituted proceedings against the defendant in the civil Courts of Faridkote; the defendant, although notified of these proceedings, did not appear; and judgment in each case was accordingly given in favour of the plaintiff for sums amounting in all to Rs. 76,474.11.3 and costs. The defendant had no assets in Faridkote, and the plaintiff did not think fit to take proceedings in Jhind; but the defendant having meanwhile engaged in trading transactions at Lahore, and

(p) As to its effect on extradition, see p. 251, infra.

(q) On the subject generally, see Hall, 219; Westlake, i. 251.