COUNSEL: Fullarton, for the appellant

Rigby, Q.C., and Pollard, for the respondent

 

SOLICITORS: For appellant: Yeilding, Barlow, & Piper.

For respondent: Randolph C. Want.

 

JUDGES: The Lord Chancellor, Lord Watson, Lord Hobhouse, Lord Macnaghten, And Sir Richard Couch.

 

DATES: 1891 July 23.

 

 

Law of New South Wales – Criminal Law Amendment Act, 1883, s. 54 – Criminal Jurisdiction – Offences committed without the Colony.

 

Sect. 54 of the Criminal Law Amendment Act, 1883 (46 Vict. No. 17), enacts that, “whosoever being married marries another person during the life of the former husband or wife, wheresoever such second marriage takes place, shall be liable to penal servitude for seven years”:–

 

Held, that these words must be intended to apply to those actually within the jurisdiction of the Legislature, and consequently that there was no jurisdiction in the Colony to try the appellant for the offence of bigamy alleged to have been committed in the United States of America.

 

APPEAL on special leave from an order of the Supreme Court (July 4, 1890) dismissing an appeal by way of special case from the conviction of the appellant by the Court of Quarter Sessions at Sydney in that Colony, for bigamy, such appeal being upon points reserved at his trial by the chairman of that Court.

 

The conviction took place in May, 1890, the points reserved being as to the admissibility of certain documentary evidence as to the second marriage, and as to misdirection in the chairman’s saying that it was incompetent for an American Court to divorce from the former marriage which had been celebrated in New South Wales, and as to the absence of any evidence of the law of Missouri relating to the validity of the ceremony of second marriage.

 

Fullarton, for the appellant, contended that the Court had no jurisdiction to try the appellant at all for the alleged offence. The Act under which he was tried relates according to its true [*456] construction to offences committed within the jurisdiction of the local legislature by persons subject at the time of the offence to its jurisdiction: see 46 Vict. No. 17, s. 54. Upon any other construction it would be ultra vires, the local legislature deriving from the Imperial Parliament a jurisdiction limited to the extent of the colony.

 

[THE LORD CHANCELLOR:– Their Lordships will hear the question of jurisdiction argued before coming to the other points in the case.]

 

Rigby, Q.C., and Pollard, for the respondent, contended that the point of jurisdiction had never been taken in the Colony. Full legislative power had been given to the local legislature: and see 24 & 25 Vict. c. 100, s. 57, and 9 Geo. 4, c. 83, s. 24.

 

Fullarton, was not heard in reply.

 

The judgment of their Lordships was delivered by

LORD HALSBURY, L.C.:–

 

The facts upon which this appeal arises are very simple.

 

The appellant was, on the 13th of July, 1872, at Darling Point, in the Colony of New South Wales, married to one Mary Manson, and, in her lifetime, on the 8th of May, 1889, he was married, at St. Louis, in the State of Missouri, in the United States of America, to Mary Elizabeth Cameron. He was afterwards indicted, tried, and convicted, in the Colony of New South Wales, for the offence of bigamy, under the 54th section of the Criminal Law Amendment Act of 1883 (46 Vict. No. 17).

 

That section, so far as it is material to this case, is in these words: “Whosoever being married marries another person during the life of the former husband or wife, wheresoever such second marriage takes place, shall be liable to penal servitude for seven years.” In the first place, it is necessary to construe the word “whosoever”; and in its proper meaning it comprehends all persons all over the world, natives of whatever country. The next word which has to be construed is “wheresoever.” There is no limit of person, according to one construction of “whosoever”; and the word “wheresoever” is equally universal in its application. [*457] Therefore, if their Lordships construe the statute as it stands, and upon the bare words, any person, married to any other person, who marries a second time anywhere in the habitable globe, is amenable to the criminal jurisdiction of New South Wales, if he can be caught in that Colony. That seems to their Lordships to be an impossible construction of the statute; the Colony can have no such jurisdiction, and their Lordships do not desire to attribute to the Colonial Legislature an effort to enlarge their jurisdiction to such an extent as would be inconsistent with the powers committed to a colony, and, indeed, inconsistent with the most familiar principles of international law. It therefore becomes necessary to search for limitations, to see what would be the reasonable limitation to apply to words so general; and their Lordships take it that the words “Whosoever being married” mean, “Whosoever being married, and who is amenable, at the time of the offence committed, to the jurisdiction of the Colony of New South Wales.”

 

The word “wheresoever” is more difficult to construe; but when it is remembered that in the Colony, as appears from the statutes that have been quoted to their Lordships, there are subordinate jurisdictions, some of them extending over the whole Colony, and some of them, with respect to certain classes of offences, confined within local limits of venue, it is intelligible that the 54th section may be intended to make the offence of bigamy justiceable all over the Colony, and that no limits of local venue are to be observed in administering the criminal law in that respect. “Wheresoever,” therefore, may be read, “Wheresoever in this Colony the offence is committed.”

 

It is to be remembered that the offence is the offence of marrying, the wife of the offender being then alive – going through, in fact, the ceremony of marriage with another person while he is a married man. That construction of the statute receives support from the subordinate arrangements which the statute makes for the trial, the form of the indictment, the venue, and so forth. The venue is described as New South Wales, and sect. 309 of the statute provides that “New South Wales shall be a sufficient venue for all places, whether the indictment is in the Supreme Court, or any other Court having criminal [*458] jurisdiction. Provided that some district, or place, within, or at, or near which, the offence is charged to have been committed, shall be mentioned in the body of the indictment. And every such district or place shall be deemed to be in New South Wales, and within the jurisdiction of the Court, unless the contrary be shewn.” That, by plain implication, means that the venue shall be sufficient, and that the jurisdiction shall be sufficient, unless the contrary is shewn. Upon the face of this record the offence is charged to have been committed in Missouri, in the United States of America, and it therefore appears to their Lordships that it is manifestly shewn, beyond all possibility of doubt, that the offence charged was an offence which, if committed at all, was committed in another country, beyond the jurisdiction of the Colony of New South Wales.

 

The result, as it appears to their Lordships, must be that there was no jurisdiction to try the alleged offender for this offence, and that this conviction should be set aside. Their Lordships think it right to add that they are of opinion that if the wider construction had been applied to the statute, and it was supposed that it was intended thereby to comprehend cases so wide as those insisted on at the bar, it would have been beyond the jurisdiction of the Colony to enact such a law. Their jurisdiction is confined within their own territories, and the maxim which has been more than once quoted, “Extra territorium jus dicenti impune non paretur,” would be applicable to such a case. Lord Wensleydale, when Baron Parke, advising the House of Lords in Jefferys v. Boosey (1), expresses the same proposition in very terse language. He says(2): “The Legislature has no power over any persons except its own subjects – that is, persons natural born subjects, or resident, or whilst they are within the limits of the kingdom. The Legislature can impose no duties except on them; and when legislating for the benefit of persons, must, primä facie, be considered to mean the benefit of those who owe obedience to our laws, and whose interests the Legislature is under a correlative obligation to protect.” All crime is local. The jurisdiction over the crime belongs to the country where the crime is committed, and, except over her own subjects, Her

 

(1) 4 H. L. R. 815.

 

(2) 4 H. L. R. 926. [*459]

 

Majesty and the Imperial Legislature have no power whatever. It appears to their Lordships that the effect of giving the wider interpretation to this statute necessary to sustain this indictment would be to comprehend a great deal more than Her Majesty’s subjects; more than any persons who may be within the jurisdiction of the Colony by any means whatsoever; and that, therefore, if that construction were given to the statute, it would follow as a necessary result that the statute was ultra vires of the Colonial Legislature to pass. Their Lordships are far from suggesting that the Legislature of the Colony did mean to give to themselves so wide a jurisdiction. The more reasonable theory to adopt is that the language was used, subject to the well-known and well-considered limitation, that they were only legislating for those who were actually within their jurisdiction, and within the limits of the Colony.

 

For these reasons, their Lordships will humbly advise Her Majesty that the judgment of the Supreme Court should be reversed, and that this conviction should be set aside. The respondent must pay the costs of the appeal.