Reference as to whether members of the Military or Naval Forces of the United States of America are exempt from Criminal Proceedings in Canadian Criminal Courts

Reference as to whether members of the Military or Naval Forces of the United States of America are exempt from Criminal Proceedings in Canadian Criminal Courts
Collection
Supreme Court Judgments
Date
1943-08-03
Report
[1943] SCR 483
Judges
Duff, Lyman Poore; Kerwin, Patrick; Hudson, Albert Blellock; Taschereau, Robert; Rand, Ivan Cleveland
On appeal from
Canada
Subjects
International law
Decision Content
Supreme Court of Canada
Reference as to whether members of the Military or Naval Forces of the United States of America are exempt from Criminal Proceedings in Canadian Criminal Courts, [1943] S.C.R. 483
Date: 1943-08-03
In The Matter of a Reference as to Whether Members of The Military or Naval Forces of The United States of America are Exempt from Criminal Proceedings in Canadian Criminal Courts.
1943: June 14, 15, 16, 17, 18; 1943: August 3.
Present: Duff C.J. and Rerwin, Hudson, Taschereau and Rand JJ.
International law—Constitutional law—Military and naval forces of United States of America—Present in Canada with consent of Dominion Parliament for military operations in connection with present war—Whether exempt from criminal jurisdiction of Canadian courts—If not exempt, whether Dominion Government, or Governor General in Council under War Measures Act, have jurisdiction to enact legislation to grant such exemption.
The following questions were referred to this Court:
1. Are members of the military or naval forces of the United States of America who are present in Canada with the consent of the Government of Canada for purposes of military operations in connection with or related to the state of war now existing exempt from criminal proceedings prosecuted in Canadian criminal courts and, if so, to what extent and in what circumstances?
2. If the answer to the first question is to the effect that the members of the forces of the United States of America are not exempt from criminal proceedings or are only in certain circumstances or to a certain extent exempt, has Parliament or the Governor General in Council acting under the War Measures Act, jurisdiction to enact legislation similar to the statute of the United Kingdom entitled the United States of America (Visiting Forces) Act, 1942?
On these questions, opinions were given as follows:
Per curiam: Question 2 should be answered in the affirmative. The Dominion Parliament, more especially under head 7 of section 91 of the B.N.A. Act, has jurisdiction to enact legislation similar to the statute of the United Kingdom entitled The United States of America (Visiting Forces) Act, 1912, i.e. to exempt visiting American troops during the present war from the criminal jurisdiction of the Canadian courts. The Governor General in Council, acting under the War Measures Act, has also jurisdiction to enact similar legislation.
As to question 1:
Per the Chief Justice and Hudson J.:—
As a preliminary observation:
In virtue of the Order in Council of the 15th of April, 1941 (set out in the reasons infra), as amended by the Order in Council of the 6th of April, 1943, the service courts and service authorities of the United States of America may, subject to the provisions of the first-mentioned Order in Council, in relation to members of its forces (military, naval and air) present in Canada, or on board a Canadian ship or aircraft, exercise within Canada all such powers as are conferred upon them by the law of the United States in matters concerning discipline and internal administration. The code of discipline in force in the United States army is very sweeping in its provisions and seems to be broad enough to embrace almost any offence against the criminal law of this country.
As to the jurisdiction of Canadian courts:—
First, as to land forces. There is no rule of law in force in Canada which deprives the Canadian civil courts (that is to say, non-military courts) of jurisdiction in respect of offences against the laws of Canada committed by the members of such forces on Canadian soil. The Canadian criminal courts do not in fact exercise jurisdiction in respect of acts committed within the lines of such forces, or of offences against discipline generally committed by one member of such forces against another member in cases in which the act or offence does not affect the person or property of a Canadian subject.
Secondly, as to naval forces. The members of a crew of an armed ship of the United States are exempt from the jurisdiction of the criminal courts of Canada in respect of an offence committed on board ship by one member of the crew against another member of (the crew and generally in respect of acts which exclusively concern the internal discipline of the ship. As regards offences committed on shore by members of the crew, they are not exempt from the jurisdiction of the criminal courts of Canada, but the criminal courts of Canada do not exercise jurisdiction in respect of such offences where the offence is one committed by one member of the crew against another member of the crew, except at the request of the commander of the ship.
Per Kerwin and Taschereau JJ.: The members of the military and naval forces of the United States of America present in Canada with the consent of the Canadian Government for purposes of military operations in connection with, or related to the state of war now existing, whether such members are attached to a unit or ship stationed in Canada or elsewhere or are absent on duty or on leave from their unit or ship stationed here, are exempt from criminal proceedings prosecuted in Canadian criminal courts. This immunity may be waived by the United States and in any event does not apply to members of the forces who may enter Canada as tourists or casual visitors. The powers of arrest, search, entry or custody by Canadian authorities are not interfered with.
Per Rand J.: The members of United States forces are exempt from criminal proceedings in Canadian courts for offences under local law committed in their camps or on their warships, except against persons not subject to United States service law, or their property, or for offences under local law, wherever committed, against other members of those forces, their property and the property of their government; but the exemption is only to the extent that United States courts exercise jurisdiction over such offences.
Per The Chief Justice and Hudson J.: The United Kingdom has never assented to any rule of international law by which British courts are restricted in their jurisdiction in respect of visiting armies or members of them; in other words, no rule of international law, by which the visiting forces of an Ally in the United Kingdom would be exempt as of legal right from the jurisdiction of the British civil courts, has ever been a part of the law of England. This applies equally to Canada: the fundamental constitutional principle with which it is inconsistent is a part of the law of every province of Canada, the constitutional principle by which a soldier does not, in virtue of his military character, escape the jurisdiction of the civil courts of this country. Nothing short of legislative enactment, or its equivalent, can change this principle.
Per Kerwin J.: The general rule is that every one in Canada is subject to the laws of the country and to the jurisdiction of its courts. But there are exemptions grounded on reason and recognized by civilized countries as being rules of international law which will be followed in the absence of any domestic law to the contrary. By international law, there exists an exemption from criminal proceedings prosecuted in Canadian criminal courts of the visiting members of the United States forces; and, as a result of the order in council of April 6th, 1943 (set out in the reasons), nothing that had been done by Canada should be taken as prejudicing or curtailing such exemption. The Government of Canada having invited into the Dominion the military and naval troops of the United States of America as a part of the scheme of defence of the north half of the Western Hemisphere and, therefore, not merely for the benefit of the United States but for that of both parties and, in fact, for the benefit of all allied nations in the present conflict, the invitation must be taken to have been extended and accepted on the basis that complete immunity of prosecution in Canadian criminal courts would be extended to members of the United States forces.
Per Taschereau J.: There exist rules of international law adopted by the civilized nations of the world granting immunity to organized forces visiting a country with the consent of the receiving Government. These immunities are not based on the theory of exterritoriality, but they rest on the ground that "a sovereign" extending the invitation "is understood to cede a portion of his territorial jurisdiction, when he allows the troops of a foreign prince to pass through his dominions". Schooner Exchange case (7 Cranch 116) These rules of international law have been accepted by the highest courts of the United States and some of them, applicable to the present case, have also been accepted by the Judicial Committee; their existence must be ackowledged and they must be treated as incorporated in our domestic law. There is nothing in the laws of the land inconsistent with their application within our territory.
Per Rand J.: Constitutional principle in England has for several centuries maintained the supremacy of the civil law over the military arm. That principle, however, cannot be said to be infringed by jurisdiction in a military court of the United States over its own forces which for the purposes of both countries are temporarily on Canadian soil. But that principle stands in the way of implied exemption under international rules, when the act complained of clashes with civilian life. The question is what is the workable rule implied from the invitation, that fits into the fundamental legal and constitutional system to which it is offered. It is from the background of that system that the invitation and its acceptance must be interpreted. It cannot be said to be clear that there has been a recognition of either a usage or principle, emanating from rules of international law, by the parliament or the courts of this country or of Great Britain that would raise the immunity against the constitutional safeguard of accountability before a common tribunal. That safeguard, however, is concerned primarily to vindicate, not Canadian courts, but Canadian civil liberty;. It does not, therefore, stand in the way of a rule limited to the relations of members of a foreign group admitted into Canada for temporary national purposes with persons other than members of the Canadian public.
REFERENCE by His Excellency the Governor General in Council, under the authority of section 55 of the Supreme Court Act (R.S.C. 1927, c. 35), of certain questions which are cited in full in the head-note and in the Order in Council below, to the Supreme Court of Canada for hearing and consideration.
The Order in Council referring the questions to the Court is as follows:
The Committee of the Privy Council have had before them a report, dated 8th, April, 1943, from the Minister of Justice, representing:— That, with the consent of the Government of Canada, the Government of the United States of America has stationed and will station units of its military and naval forces in Canada;
That a question has arisen as to the relationship of the authorities and courts of Canada to the aforesaid forces and more particularly as to whether criminal proceedings may be prosecuted in Canada before any Canadian court against a member of the military or naval forces of the United States of America;
That United States authorities contend that the members of their military and naval forces aforesaid present in Canada with the consent of the Government of Canada are exempt from prosecution as aforesaid;
That cases have already occurred in which members of the military forces of the United States of America present in Canada have been charged with having committed criminal offences in Canada and questions have arisen as to whether such members are subject to be prosecuted in the criminal courts of Canada or whether service courts established for the purpose by the United States military authorities have exclusive jurisdiction in that behalf;
That certain regulations enacted under the War Measures Act entitled the Foreign Forces Order, 1941, provide that, when a foreign force to which the Order is made applicable is present in Canada, the service courts of the foreign power may exercise within Canada, in relation to members of that force, in matters concerning discipline and internal administration, all such powers as are conferred upon them by the law of that power, subject to certain exceptions set out in a proviso to section three of the said Regulations, which exceptions, however, are not applicable in the case of the forces of the United States of America; and
That these Regulations have, subject to the qualification mentioned in the next preceding paragraph, been extended to the forces of the United States of America, which extension was made for the purpose of placing service courts of the forces of the United States of America in no less advantageous position than those of our other allies and it was expressly provided in the Order that the application of the Foreign Forces Order, 1941, to the forces of the United States of America shall not be construed as prejudicing or curtailing in any respect whatsoever any claim to immunity from the operation of the municipal laws of Canada or from the processes of Canadian courts exercising either criminal or civil jurisdiction by members of the forces of the United States of America (P.C. 2813 dated 6th April, 1943).
The Minister is of opinion that important questions of law are raised, and recommends that, pursuant to the powers vested in the Governor in Council by section fifty-five of the Supreme Court Act, the following questions be referred to the Supreme Court for hearing and consideration :
1. Are members of the military or naval forces of the United States of America who are present in Canada with the consent of the Government of Canada for purposes of military operations in connection with or related to the state of war now existing exempt from criminal proceedings prosecuted in Canadian criminal courts and, if so, to what extent and in what circumstances?
2. If the answer to the first question is to the effect that the members of the forces of the United States of America are not exempt from Criminal proceedings or are only in certain circumstances or to a certain extent exempt, has Parliament or the Governor General in Council acting under the War Measures Act jurisdiction to enact legislation similar to the statute of the United Kingdom entitled the United States of America (Visiting Forces) Act, 1942?
The Committee concur in the foregoing recommendation and submit the same for approval.
A. D. P. Heeney,
Clerk of the Privy Council.
F. D. Smith K.C., G. E. Read K.C. and C. Stein for the Attorney-General of Canada.
C. R. Magone K.C. for the Attorney-General for Ontario.
G. C. Papineau-Couture K.C. for the Attorney-General for Quebec.
W. S. Gray K.C. and H. J. Wilson K.C. for the Attorney-General for Alberta.
E. Pepler K.C. for the Attorney-General for British Columbia.
The judgment of The Chief Justice and Hudson J. was delivered by:
The Chief Justice.—The two questions referred to us are these:—
(1) Are members of the military or naval forces of the United States of America who are present in Canada with the consent of the Government of Canada for purposes of military operations in connection with or related to the state of war now existing exempt from criminal proceedings prosecuted in Canadian criminal courts and, if so, to what extent and in what circumstances?
(2) If the answer to the first question is to the effect that the members of the forces of the United States of America are not exempt from criminal proceedings or are only in certain circumstances or to a certain extent exempt, has Parliament or the Governor General in Council acting under the War Measures Act, jurisdiction to enact legislation similar to the statute of the United Kingdom entitled the United States of America (Visiting Forces) Act, 1942?
It is more convenient to deal first with the second question. Under head 7 of section 91 of the British North America Act exclusive jurisdiction "in relation to Militia and Defence" is vested in the Dominion Parliament "notwithstanding anything in this Act". Construing and applying section 91 in light of the judgment in the Fort Frances case [1] and the judgment of this Court in Re Gray[2], the Dominion Parliament has, in my view, jurisdiction to legislate in the sense indicated in the second question: that is to say, to exempt visiting American troops during the present war from the criminal jurisdiction of the Canadian courts. Further, by the enactments of the War Measures Act the Governor General in Council has full] discretionary authority to pass any such measure.
A similar proposal was made in 1942 in England and, while it was unanimously agreed by competent authorities that the proposal to divest the British courts of jurisdiction in relation to offences committed by the members of any army, domestic or foreign, in Great Britain was "unprecedented", there was a general agreement that in the circumstances the necessary legislation should be passed granting the exemption which the American Government desired. The general view was expressed by Lord Atkin in a letter to The Times during the progress of the measure through Parliament in this sentence:—
It is a proposal unique in the constitutional history of this country, but the Government of the United States have been so ungrudging in the aid given to this country that if they expressed a desire for such legislation no one would hesitate to grant it.
I cannot doubt that this is the spirit in which any such legislation would be regarded in this country.
In this view of the second question it seems to me, if I may say so without disrespect, that the first question is (as regards the American forces) almost academic in its nature. Nevertheless, the Governor General in Council, in the exercise of his undoubted authority and discretion, has considered that the question ought to be answered and it is our duty to examine and pronounce upon it.
I apply myself first to the consideration of the position of the members of a land force; afterwards I will discuss the case of the naval forces. First then as to a visiting army. The rule, it should be recalled, which it is now said is a part of the law of this country restricting the jurisdiction of the criminal courts of this country, is deduced from the doctrine laid down in a passage in the judgment of Marshall C.J., in Schooner Exchange v. M'Faddon[3]:
The grant of a free passage therefore implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require. It is not contended, it is important also to observe, that there is any statute or any legislative enactment in the form of an Order in Council having the force of a statute which gives legal effect to any such rule. No such contention is advanced and there could be no basis for it. The rule contended for is not put and could not be put upon any pretended statutory sanction. If there is such a rule in force in this country in the sense contended for, it derives its validity solely from alleged principles of international law to which the nations, including the United Kingdom and Canada, are supposed to have agreed.
My view can be stated very briefly. It is, I have no doubt, a fundamental constitutional principle, which is the law in all the provinces of Canada, that the soldiers of the army of all ranks are not, by reason of their military character, exempt from the criminal jurisdiction of the civil (that is to say, non-military) courts of this country. In fact, at the time the United States forces entered this country there was in the Order in Council of the 15th of April, 1941, a declaration in these terms:—
4. (1) Nothing in the last preceding section shall affect the jurisdiction of any civil court in Canada to try a member of any foreign force for any act or omission constituting an offence against any law in force in Canada.
(2) If a person sentenced by a court exercising jurisdiction by virtue of the last preceding section to punishment for an offence is afterwards tried by any such civil court as aforesaid in respect of any act or omission which constituted that offence, the civil court, shall, in awarding punishment in respect of that act or omission, have regard to any punishment imposed on him by the said sentence.
(3) A court shall not have jurisdiction by virtue of the last preceding section to try any person for any act or omission constituting an offence for which he has been acquitted or convicted by any such civil court as aforesaid.
The subsequent amendment of this Order in Council by the Orders in Council of the 27th of July, 1942, and the 6th of April, 1943, does not affect this declaration in its relation to powers other than the United States; and as regards the forces of such other powers it is still in full vigour and effect.
That is a well-settled principle which has always been jealously guarded and maintained by the British people as one of the essential foundations of their constitutional liberties. I quote two passages on the subject—the first is from Dicey's "Law of Constitution", and the second is from Dr. Goodhart, the distinguished lawyer who is the successor of Maine and Pollock in the chair of jurisprudence at Oxford University and is the editor of the Law Quarterly Review; this passage is taken from an article written by Dr. Goodhart for the American Bar Association Review for the information of American lawyers. At page 300 of Dicey it is stated:—
A soldier's position as a citizen—The fixed doctrine of English law is that a soldier, though a member of a standing, army, is in England subject to all the duties and liabilities of an ordinary citizen. "Nothing in this Act contained" (so runs the first Mutiny Act) "shall extend or be construed to exempt any officer or soldier whatsoever from the ordinary process of law." These words contain the clue to all our legislation with regard to the standing army whilst employed in the United Kingdom. A soldier by his contract of enlistment undertakes many obligations in addition to the duties incumbent upon a civilian. But he does not escape from any of the duties of an ordinary British subject.
The results of this principle are traceable throughout the Mutiny Acts.
A soldier is subject to the same criminal liability as a civilian. He may when in the British dominions be put on trial before any competent "civil" (i.e. non-military) court for any offence for which he would be triable if he were not subject to military law, and there are certain offences, such as murder, for which he must in general be tried by a civil tribunal. Thus, if a soldier murders a companion or robs a traveller whilst quartered in England or in Van Diemen's Land, his military character will not save him from standing in the dock on the charge of murder or theft.
Referring to the legislation introduced in 1942 and passed by the Parliament of the United Kingdom, Dr. Goodhart says:—
The important constitutional principle which was involved is one of the essential ones on which the English constitution is based. It is described by Dicey as "the fixed doctrine of English law that a soldier, though a member of a standing army, is in England subject to all the duties and liabilities of an ordinary citizen". It is part—and perhaps the most important part—of "the rule of law" which is the distinctive feature of the British system. "It becomes, too, more and more apparent that the means by which the courts have maintained the law of the constitution have been the strict insistence upon the two principles, first of "equality before the law", which negatives exemption from the liabilities of ordinary citizens or from the jurisdiction of the ordinary courts, and, secondly, of "personal responsibility of wrong-doers", which excludes the notion that any breach of law on the part of a subordinate can be justified by the orders of his superiors. This means that the British soldier is subject to the jurisdiction of the ordinary courts, and is responsible to them for any breaches of the law which he may commit. So long as this principle is maintained, it will be impossible for anyone to establish a military dictatorship in Great Britain.
I have no doubt that this principle applies to all armies, British or foreign, except in cases in which by the legislation mentioned dealing with the American forces in England, it has been changed by legislative enactment, or the equivalent thereof. There can be no doubt that in Great Britain it is settled as indisputable that this is a principle of law applicable in strict law to all armies there, except in so far as it has been modified by statute. The circumstance that in the United Kingdom and in Canada the civil courts would not, except at all events at the request of the commander of the visiting military forces, exercise jurisdiction in respect of acts beginning and ending within the lines of those forces and taking no effect externally to them, or probably in matters which exclusively concern the discipline of the visiting forces and/or the relations of the members of those forces to one another, is not, of course, in any way inconsistent with what I am saying. The course of the proceedings in England in the years 1940 and 1942 in relation to foreign forces present there illustrate this in the most striking way.
In 1940 an Act was passed by the Parliament of the United Kingdom to make provision with respect to the discipline and internal administration of allied and associated forces, and for the application in relation to those forces of the Visiting Forces (British Commonwealth) Act, 1933. This Act dealt with the authority of military, naval and air force courts of any foreign power allied with His Majesty for the time being present in the United Kingdom, or on board any of His Majesty's ships or aircraft. The Act authorized the Government by Order in Council inter alia to empower the naval, military and air force courts of such powers, subject to the provisions of the statute, to exercise within the United Kingdom or on board any such ship or aircraft in relation to members of those forces, in matters concerning discipline and internal administration, all such powers as are conferred upon them by the law of that Power.
In 1942 an Order in Council was passed applying to the Visiting American Forces (with all necessary modifications) the terms of section 1 (1) of the Visiting Forces (British Commonwealth) Act, 1933. The effect of these provisions was that the American service courts could exercise the necessary jurisdiction, while the English government departments were enabled to assist them, for example, by detaining in an English prison or detention barrack any person convicted in those courts. By section 2 of the Act of 1940 it was enacted as follows:—
2. (1) Nothing in the foregoing section shall affect the jurisdiction) of any civil court of the United Kingdom or of any colony or territory to which that section is extended, to try a member of any of the naval, military or air forces mentioned in thai section for any act or omission constituting an offence against the law of the United Kingdom, or of that colony or territory, as the case may be.
(2) If a person sentenced by a court exercising jurisdiction by virtue of the foregoing section to punishment for an offence is afterwards tried by any such civil court as aforesaid in respect of any act or omission which constituted that offence, the civil court shall, in awarding punishment in respect of that act or omission, have regard to any punishment imposed on him by the said sentence.
(3) A court shall not have jurisdiction by virtue of the foregoing section to try any person for any act or omission constituting an offence for which he has been acquitted or convicted by any such civil court as aforesaid.
The visiting forces, therefore, were subject to the jurisdiction of the British courts. The Attorney-General, in introducing the Bill, explained that the British courts did not in fact exercise jurisdiction within the lines of the visiting forces, unless the person or property of a British subject was involved.
Then followed the Act of 1942 by which the jurisdiction of the British courts, in respect of offences committed by members of the American forces, was withdrawn. The Bill was introduced into the House of Lords and the observations of the Lord Chancellor in relation to it are important. There could be no doubt, he said, and, of course, there could be no doubt about it, that the jurisdiction of the British civil courts in relation to the members of the American forces could only be taken away by legislation. The Lord Chancellor made it perfectly plain that this legislation was being enacted in response to the desire of the Government of the United States. It is quite clear that, speaking on behalf of His Majesty's Government, he did not recognize any right (in virtue of international law) of an allied power to the exclusion of the jurisdiction of His Majesty's courts in relation to its visiting forces in Great Britain. The Lord Chancellor does refer to the fact that in the First Great War there was an agreement between the Government of Great Britain and the Government of the French Republic, by which jurisdiction over the members of the British Forces in respect of offences committed in France was given exclusively to the British military courts. But at the conclusion of his speech he says:—
I think your Lordships will see that this is a very interesting and, I admit, a most unusual proposal; one which would never be justified or tolerated except under conditions of war, and except under conditions of the closest feeling of comradeship and of common legal traditions which exist between the United States and ourselves. I commend the Bill to the House; and, if you will allow me to say so, His Majesty's Government tender it to the United States as a proof and a pledge of the genuineness of our confidence in them and our sense that we are indeed in this business together from the beginning to the end. In that spirit I feel sure that American Courts will seek to administer the exclusive powers they will now possess, and in that spirit I beg to move the Second Reading of the Bill.
It is very obvious that the British Government recognized, and recognizes no such right as that now claimed as arising out of any rule of international law.
In the House of Commons there was an important statement by the Attorney-General. He emphasized the principle that legislation is necessary to restrict the jurisdiction of British courts in relation to the members of any army on British soil, and he says:—
May I say a word or two on the more general issues that are raised? Obviously this is an unprecedented proposal, but we live in unprecedented times. It is undoubtedly true that in the course of our history we have on many fewer occasions had the Forces of an Ally present on British soil than in the case of Continental countries. There have been some Dutch Forces here from time to time in our past history, and I was told of an assault committed by a Dutch soldier on a local inhabitant and the magistrate having great difficulty in preventing the commanding officer stringing him up the nearest oak tree. But that was a long time ago. We had American troops in the last war, and the Americans made exactly the same request that they are making to-day; it was only because the time was shorter, and that agreement was not come to, that Parliament was not asked to legislate on these lines. But in fact American soldiers were dealt with by our courts, and they made exactly the same request.
There was indeed unanimity in both Houses upon the point that the proposal to restrict the jurisdiction of British courts in the manner suggested was absolutely unprecedented, and that the proposal affected a fundamental constitutional principle that could only be modified by statute.
Indeed it is plain that the correspondence which is attached as a schedule to the Bill, when carefully read, embodies the same assumptions, Mr. Eden's phrase
in view of the very considerable departure which the above arrangements will involve from the traditional system and practice of the United Kingdom expresses in measured language the substance of what is stated by the Lord Chancellor and the Attorney-General. The necessity for Parliamentary authority is emphasized in the first sentence of Mr. Eden's note and is recognized in the last paragraph of Mr. Winant's note (1).
I repeat that the practice followed in 1940 before the passing of the statute in 1942, as explained by the Attorney-General, in refraining from exercising or claiming jurisdiction in relation to acts within the lines of the visiting troops, in which neither the person nor property of a British subject was involved, in no way militates against this attitude of His Majesty's Government with regard to the strict law of the matter.
The attitude of His Majesty's Government from beginning to end was quite unambiguous. The authority of the service courts of the United States to exercise their powers under American law in the United Kingdom was given by Order in Council under the statute of 1940. The jurisdiction of the British courts in relation to American soldiers could only be abrogated or limited by Parliamentary action. There is nowhere a suggestion that His Majesty's Government recognized the existence of any rule of international law by which the visiting forces of an Ally in the United Kingdom would be exempt as of legal right from the jurisdiction of the British civil courts; and the proceedings from beginning to end are quite inconsistent with the assumption that any such view would have received any countenance from Parliament or His Majesty's Government.
(1) Reporter's note.—The first sentence of Mr. Eden's note is:
"Following the discussions which have taken place between representatives of our two Governments, His Majesty's Government in the United Kingdom are prepared, subject to the necessary Parliamentary authority, to give effect to the desire of the Government of the United States that the Service courts and authorities of the United States Forces should, during the continuance of the conflict against our common enemies, exercise exclusive jurisdiction in respect of criminal offences which may be committed in the United Kingdom by members of those Forces, and they are ready to introduce in Parliament the necessary legislation for this purpose."
The last paragraph of Mr. Winant's note is:
"It is my understanding that the present exchange of notes is regarded as constituting an agreement between the two Governments to which effect shall be given as from the date on which the necessary Parliamentary authority takes effect." In considering the question whether the United Kingdom has or has not assented to some rule of international law modifying one of her fundamental constitutional principles, it is, in my opinion, legitimate to refer to the statement made by the Lord Chancellor, not in his judicial capacity, but on his responsibility as representing the Government of the United Kingdom in introducing a Bill giving legislative sanction to an arrangement entered into between the Government of the United Kingdom and the Government of the United States subject to such sanction. It is also, in my opinion, legitimate to refer to the statements made by the Attorney-General to the House of Commons on his responsibility as Attorney-General on the existing state of the law in the United Kingdom. The decisive thing is, of course, as it seems to me, the position taken by the Government of the United Kingdom and by the Parliament of the United Kingdom in relation to the expressed desire of the Government of the United States that its forces in the United Kingdom should be exempt, from the criminal jurisdiction of the British courts; that position has been fully explained.
Some comment is perhaps desirable upon an argument which was based upon negotiations which took place between the British and American Governments in 1917-18. I have already quoted from the speech of the Attorney-General in the House of Commons in which he deals with this subject. The important points are, first: that only by the authority of Parliament could an agreement restricting the jurisdiction of British courts have been validly effected, and, secondly: that in point of fact American soldiers were dealt with by British courts. What the Attorney-General says is incompatible with any recognition of the notion that there is some rule of international law which deprives the courts of jurisdiction, in the absence of legislative enactment or its equivalent.
I find it impossible to escape the conclusion that the United Kingdom has never assented to any rule of international law by which British courts are restricted in their jurisdiction in respect of visiting armies or members of them. In other words, no such rule as that now insisted upon has ever been a part of the law of England; and this applies equally to Canada. The fundamental constitutional principle with which it is inconsistent is a part of the law of every province of Canada, the constitutional principle by which, that is to say, a soldier does not, in virtue of his military character, escape the jurisdiction of the civil courts of this country. Nothing short of legislative enactment, or its equivalent, can change this principle.
Some stress was laid upon the agreement between the United Kingdom and the Republic of France in the last war; and it might conceivably be argued that the agreement places the Government of the United Kingdom under a diplomatic obligation at least to introduce legislation into the British Parliament, if any question should arise as to the jurisdiction of British criminal courts over French soldiers in the United Kingdom; but it is beyond doubt that His Majesty's Government did not and could not regard this arrangement with France as having in itself, without legislative sanction, the effect of depriving the courts of the United Kingdom of their jurisdiction.
Reverting to the agreement with the United States in 1942, it was pointed out by the Lord Chancellor that such an agreement should at least in principle be reciprocal. Paragraph 7 of Mr. Eden's note is in these words:—
It would accordingly be very agreeable to His Majesty's Government in the United Kingdom if Your Excellency were authorized to inform me that in that case the Government of the United States of America will be ready to take all steps in their power to ensure to the British forces concerned a position corresponding to that of American forces in the United Kingdom.
In Mr. Winant's note the only reference is in the general words:—
My Government agrees to the several understandings which were raised in your note.
In this correspondence both Governments treated the matter, as the Lord Chancellor did in the House of Commons, as a subject of reciprocal arrangements. There is no declaration on either side of the existence of any rule of law such as that now contended for; nor indeed is there any formal or unqualified undertaking by the American Government that the State courts of the