Statutes
| DOI | http://doi.org/10.1111/j.1468-2230.1941.tb00887.x |
| Published date | 01 November 1941 |
| Date | 01 November 1941 |
I
I8
MODERN
LAW
REVIEW
Nov.,
1941
STATUTES
Allied
Powers (Maritime
Courts)
Act,
1941
This interesting and indeed unique statute received less attention
in
its passage through Parliament than
it
deserved.
It
enables certain of
the Allied Powers to set up in the United Kingdom Maritime Courts of
criminal
jurisdiction and is thus an infraction of
a
well-known principle
of sovereignty which has been much prayed in aid by China, Turkey and
other
States
in their successful attempts to put an end to the exercise
of extra territorial rights by foreign sovereign powers within their boun-
daries. Extra territorial courts were established in the Levant as
a
matter
of mercantile and religious convenience, and their existence was not
at
the
time regarded
as
in any sense
a
mark of subservience.
In
later times
however they were forced upon such countries as China by military
operations, and their existence came to be regarded as
a
mark of inferiority.
In
this
country in medieval times the position
of
the religious courts would
have been regarded as anomalous according to modem conceptions of
sovereignty, and furnished indeed
a
grievance, but more because of their
rapacity than because
of
objections to their jurisdiction.
It
may perhaps be regarded as
a
favourable sign that Parliament was
not very much impressed by the argument against the measure on the
grounds that
it
involved an infraction
of
British sovereignty.
With the flight to England of the Norwegian, Dutch and other govern-
ments from their
own
territories as a result
of
the German invasions they
ceased to have any effective machinery of justice in respect of those of
their nationals who came with them. This might not at first sight appear
to be serious for when these people landed here they became subject to
our laws and the jurisdiction of our courts. In two cases however the
position was not in fact satisfactory.
In the first place the remnants of the Allied military, naval and air
forces came here to continue the struggle.
It
soon became obvious that
they must be provided with the ordinary disciplinary powers which exist
in every military force, and be allowed to establish their military courts.
This was done by the Allied Forces Act,
1940.
which conferred rights and
powers parallel with those conferred upon the Dominions by the Visiting
Forces (British Commonwealth) Act,
1933.
The Allied Forces Act was
objected to in certain quarters on the grounds that the standards in some
foreign courts martial might be less enlightened than those prevailing in
our
own,
but this is
a
difficulty, which
if
it exists
at
all, can be more
satisfactorily dealt with through diplomatic representation than statutory
enactment.
In the second place, some of the Allied Governments retained under
their power
a
substantial portion
of
their mercantile marine which has
continued
to
play an important part in the struggle against the enemy.
Except
in
so
far
as
they might take place in territorial waters criminal
offences committed on board these ships ceased with some few exceptions
to be cognisable, for practical purposes, in any court.
It
was necessary
in the first place therefore to enable the Allied Governments to set up
courts in this country in which such offences could be tried, or else to
arrogate to our
own
courts
a
jurisdiction
to
deal with them. Either course
meant some infraction
of
sovereign$y, in the classical conception, but the
infraction involved in the latter was obviously more serious than
that
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