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Justice lays down that "the grant of a free passage implies a waiver of all jurisdiction over the troops during this passage and permits the foreign general to use that discipline and to inflict those punishments which the government of his army may require." He points out that differing from the case of armed troops where an express license to enter foreign terri- tory would not be presumed, the private and public vessels of a friendly power have an implied permission to enter the ports of their neighbours unless and until permission is expressly withdrawn. When in foreign waters private vessels are subject to the territorial jurisdiction:-
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But in all respects different is the situation of a public armed ship. She constitutes a part of the military force of her nation: acts under the immediate and direct command of the sovereign: is employed by him in national objects. He has many and powerful motives for preventing these objects from being defeated by the interference of a foreign state. Such interference cannot take place without affecting his power and his dignity. The implied license therefore under which such vessel enters a friendly port may reasonably be construed and it seems to the Court ought to be construed as containing an exemption from the jurisdiction of the sovereign within whose territory she claims the rights of hospitality. It seems then to the Court to be a principle of public law that national ships of war entering the port of a friendly power open for their reception are to be considered as exempted by the consent of that power from its jurisdiction."
This conclusion is based on the principles expounded in the extracts from which the Chief Justice summarised at P. 143 of the report:-
"The preceding reasoning has maintained the proposition that all exemptions from territorial jurisdiction must be derived from the consent of the sovereign of the territory: that this consent may be express or implied; and that when implied its extent must be regulated by the nature of the case and the views under which the parties requiring and conceding it must be supposed to act.'' The judgment then proceeded to apply the principles stated to the case before the Court and held that the former owners of The Exchange which had been captured by the French and entered the port of Philadelphia under stress of weather could not have a decree to recover the vessel which must be treated as an armed public vessel of the Emperor of the French whose title could not be controverted in the American Court.
The extreme doctrine of exterritoriality was not in issue in The Exchange: and neither the principles enunciated by Marshall C.J. nor his application of them appears to support it. In this country the question arose in acute form in 1875 over instructions issued by the Admiralty to commanders of Her Majesty's ships in respect of the treat- ment of fugitive slaves. They were attacked by Sir William Vernon Harcourt, then Whewell Professor of International Law at Cambridge and Liberal M.P. for Oxford in two letters to The Times under the title "Historicus." He there stated. 4th November, 1875, that
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he had seen with much surprise that the doctrine of the absolute immunity of a public ship and all persons and things on board of
it from local jurisdiction and the operation of local law where lying in the territorial waters . . . has been treated as a doubtful pro- position. I had certainly supposed that in the whole range of public
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law there was no position more firmly established by authority, more universally admitted by Governments, or one which had been more completely accepted in the intercourse of States as unquestioned and unquestionable."
The Government appointed a Royal Commission to report on the whole question as to the reception of fugitive slaves, which included such eminent lawyers as Sir Alexander Cockburn C.J., Sir Robert Phillimore, Mr. Montague Bernard, Mr. Justice Archibald, Mr. Alfred Thesiger K.C., Sir Henry Maine, Mr. James Fitzjames Stephen K.C., and Mr. Henry C. Rothery, the Registrar in Admiralty. The lawyers were not agreed as to the doctrine of international law, and the Commission were able to report without expressing any decided opinion about it. The lawyers, however, wrote memoranda which were annexed to the report. Sir Robert Phillimore, Mr. Bernard and Sir Henry Maine appeared to favour the more extreme doctrine, but admitted it must have qualifications. Sir Alexander Cockburn, in a memorandum which is worthy to be compared with the judgment of Marshall C.J., discussed the whole question of exterritoriality of a public ship of war, quoting the authorities from 1740 onwards and referring to cases of Government action. He quotes Casaregis (1740), "Discursus de Commercio Hubner (1759), "De la Saisie des Batiment Neutres," Lampredi, Pinheiro Ferreira, Azueri, Lord Stowell's advice to the British Government in 1820 in Brown's case, Wheaton, Hautefeuille, "Des Droits et des Devoirs des Nations Neutres," Ortolan, 'Diplomatie de la Mer," Bluntschli Heffter and Calvo. Of these Hubner, Hautefeuille, Ortolan and Calvo support in his view the high doctrine of ex- territoriality, Casaregis and Wheaton are non-committal, the others are against the doctrine. After controverting the views which favour complete exterritoriality and pointing out the difficulties and indeed absurdities to which the doctrine leads, he says:-
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"The rule which reason and good sense would as it strikes me prescribe would be that as regards the discipline of a foreign ship and offences committed on board as between members of her crew towards one another matters should be left entirely to the law of the ship, and that should the offender escape to the shore he should if taken be given up to the commander of the ship on demand and should be tried on shore only if no such demand be made. But if a crime be committed on board the ship upon a local subject or if a crime having been committed on shore the criminal gets on board a foreign ship he should be given up to the local authorities. In which way the rule should be settled so important a principle of international law ought not to be permitted to remain in its present unsettled state."
In this passage which was cited with approval by the Full Court of Hong Kong in the present case, it should be observed that the Lord Chief Justice assumes that even if a crime be committed on board by one member of the crew on another, should the offender escape to shore and no de- mand be made for his return, the territorial Court would have jurisdiction. Their Lordships doubt whether when he is dealing with the case of a crime committed on board on a local subject he has present to his mind the possibility of the
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