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20 Brit. Y.B. Int'l L. 83 (1939)

handle is hein.journals/byrint20 and id is 87 raw text is: THE JURIDICAL BASIS OF HOT PURSUIT By GLANVILLE L. WILLIAMS, Fellow of St. John's College, Cambridge THE incentive to writing this paper came from an inquiry into the ancient common-law doctrine of fresh pursuit. As it seems to me, this doctrine is not without a lesson for the international lawyer. For one thing it presents some interesting affinities with his own rule of hot pursuit. But much more important than this similarity of detail is the broad juridical basis on which it is rested, which invites the question whether there is any such comprehensive theory in international law. What I propose to do, therefore, is to make a comparative study of the two rules. I shall first state the English theory as briefly as possible, and then assess the extent to which international law is reaching or may reach the same result. Before embarking on this, however, it may be well to say at once that the juridical basis of fresh pursuit , to which reference has just been made, involves something of a fiction. It pretends that an act occurred at one place although in fact it occurred at another. Such a rule immediately recalls two other fictions of a similar nature that are already established in international law. The first is now a commonplace; it is the rule, recognized in England for several centuries, that an act is deemed to be com- mitted not only where the physical movements occur but also where the consequences take effect.' Perhaps, after all, this is not so much a fiction as an extended definition of the term act, but, however analysed, it seems to work well in questions of juris- diction and was approved by a majority of the Permanent Court in the case of the s.s. Lotus. The other is the fiction of construc- tive presence, which is applied where a vessel, lying outside the limit of territorial waters, makes contact with a spot within this limit by means of her own small boats (or, according to the courts of the United States, by means of boats sent out from the shore under her control). According to the preponderance of authority 1 A few dates may be of interest. (1) In the law of venue the rule goes back at least to Anon. (1593/4), 1 Dyer 50b, n., 73 E.R. 111; for the full rules see Halsbury's Laws of England, 2nd ed., pp. 66-70. (2) It was applied to the jurisdiction of the Court of Admiralty in R. v. Coombes (1786), 1 Leach 388, 168 E.R. 296, 1 East P.C. 367. (3) Its appearance in extradition cases is more recent; apparently the earliest example is R. v. Jacobi and Hiller (1881), 46 L.T. 595 n. For other authorities see Beckett, British Year Book of International Law, 1925, p. 44, and 1927, p. 108.

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