[CROWN CASE RESERVED.]

THE QUEEN v. KEYN.

Jurisdiction - Central Criminal Court - Admiralty - Territorial Waters - Offence within Three Miles of English Coast - Manslaughter - 15 Ric. 2, c. 3 - 28 Hen. 8, c. 15 - 39 Geo. 3, c. 37 - 4 & 5 Wm. 4, c. 36, s. 22 - 7 & 8 Vict. c. 2.

The prisoner was indicted at the Central Criminal Court for manslaughter. He was a foreigner and in command of a foreign ship, passing within three miles of the shore of England on a voyage to a foreign port; and whilst within that distance his ship ran into a British ship and sank her, whereby a passenger on board the latter ship was drowned. The facts of the case were such as to amount to manslaughter by English law:-

Held, by the majority of the Court (Cockburn, C.J., Kelly, C.B., Bramwell, J.A., Lush and Field, JJ., Sir R. Phillimore, and Pollock, B.; Lord Coleridge, C.J., Brett and Amphlett, JJ.A., Grove, Denman, and Lindley, JJ., dissenting), that the Central Criminal Court had no jurisdiction to try the prisoner for the offence charged.

By the whole of the majority of the Court, on the ground that, prior to 28 Hen. 8, c. 15, the admiral had no jurisdiction to try offences by foreigners on board foreign ships, whether within or without the limit of three miles from the shore of England; that that and the subsequent statutes only transferred to the Common Law Courts and the Central Criminal Court the jurisdiction formerly possessed by the admiral; and that, therefore, in the absence of statutory enactment, the Central Criminal Court had no power to try such an offence.

By Kelly, C.B., and Sir R. Phillimore, also, on the ground that, by the principles of international law, the power of a nation over the sea within three miles of its coasts is only for certain limited purposes; and that Parliament could not, consistently with those principles, apply English criminal law within those limits.

Held, contrˆ, by Lord Coleridge, C.J., Brett and Amphlett, JJ.A., Grove, Denman, and Lindley, JJ., on the ground that the sea within three miles of the coast of England is part of the territory of England; that the English criminal law extends over those limits; and the admiral formerly had, and the Central Criminal Court now has, jurisdiction to try offences there committed although on board foreign ships.

By Lord Coleridge, C.J., and Denman, J., on the ground that the prisoner's ship having run into a British ship and sank it, and so caused the death of a passenger on board the latter ship, the offence was committed on board a British ship, and, therefore, the Central Criminal Court had jurisdiction.

CASE stated by Pollock, B.

Ferdinand Keyn was tried at the April sittings of the Central Criminal Court for the manslaughter of Jessie Dorcas Young.

On the part of the prosecution it was proved that Jessie Dorcas

Young was a passenger by a British steamer called the Strathclyde, from London to Bombay, and that when off Dover the Strathclydewas run into by a steamer called the Franconia, whilst she was under the command and immediate direction of the prisoner; whereby the Strathclyde was sunk, and Jessie Dorcas Young was drowned.

The Franconia was a German vessel, carrying the German flag. She sailed from Hamburg with the prisoner, who is a German, in command, and a crew of seventy-three, nearly all of whom were Germans, and a French pilot. She was carrying the mail from Hamburg to St. Thomas in the West Indies, and put into Grimsby to take on board an English pilot, whose duty it was to conduct her down channel as far as the South Sand light; after which she would proceed to and touch at Havre, where she would land the English pilot and the French pilot, whose duty it was to conduct her from off Dungeness to Havre; and thence go to St. Thomas.

The Franconia had performed the same voyage six times.

The point at which the Strathclyde was run down by the Franconiawas one mile and nine-tenths of a mile S.S.E. from Dover pier-head, and within two and a half miles from Dover beach.

At the close of the case for the prosecution, the counsel for the prisoner objected that the Court had no jurisdiction. The learned judge, without expressing any opinion, ruled that the Court had jurisdiction.

Witnesses were called for the prisoner. The jury found him guilty.

The question for the opinion for the Court for Crown Cases Reserved was whether the Central Criminal Court had jurisdiction.

May 6, 13. The case was argued before Kelly, C.B., Sir R. Phillimore, Lush, Field, and Lindley, JJ., and Pollock, B., by Benjamin, Q.C. (Cohen, Q.C., Phillimore, and Stubbs with him), for the prisoner; and by Sir H. Giffard, S.G. (Poland, C. Bowen, and Straight with him), for the prosecution.

The Court being divided, the case was directed to be re-argued.

June 16, 17, 21, 22, 23. The case was again argued before Cockburn, C.J., Lord Coleridge, C.J., Kelly, C.B., Sir R. Phillimore,

Bramwell, Pollock, and Amphlett, BB., Lush, Brett, Grove, Denman, Archibald (1), Field and Lindley, JJ.

The arguments and the authorities cited sufficiently appear from the judgments.

Nov. 11, 13. The following judgments were delivered:-

SIR R. PHILLIMORE. The prisoner was indicted at the Central Criminal Court for the manslaughter of Jessie Dorcas Young on the high seas, and within the jurisdiction of the Admiralty of England.

The deceased was a passenger on board the Strathclyde, a British steam-vessel bound from London to Bombay.

This vessel, when at a distance of one mile and nine-tenths of a mile S.S.E. from Dover pier-head, and within two and a half miles from Dover beach, was run into by the Franconia, a German steamer, in consequence of which she sank, and the deceased woman was drowned.

The Franconia was carrying the German mails from Hamburg to St. Thomas in the West Indies.

The prisoner, being the officer in command of the Franconia, was convicted of manslaughter, but a question of law was reserved for this Court of Criminal Appeal. An objection was taken on the part of the prisoner that, inasmuch as he was a foreigner, in a foreign vessel, on a foreign voyage, sailing upon the high seas, he was not subject to the jurisdiction of any Court in this country. The contrary position maintained on the part of the Crown is that, inasmuch as at the time of the collision both vessels were within the distance of three miles from the English shore, the offence was committed within the realm of England, and is triable by the English Court. The case has been most ably conducted on both sides, and the Court has derived very great assistance from the arguments of counsel.

Before I consider the principal question, whether the offence committed on board the foreign vessel be triable here, it may be well to take notice of a subsidiary contention put forward on behalf of the Crown, namely, that the person injured was on

(1) Archibald, J. died after the argument, and before judgment was delivered: see post, p. 238.

board an English ship at the time when she received the injury which was the immediate and direct result of the collision, and that in fact the offence was committed on board an English ship. It seems expedient to deal with this contention in the first place, because, if it be valid, the inquiry as to the jurisdiction of the English Court over a foreign ship would be unnecessary. I am of opinion that this contention cannot be sustained. Looking at the facts stated by the learned judge who tried the case, as well as the indictment, it appears that the prisoner had no intention to injure the Strathclyde or any person on board of her. He was guilty of negligence, and want of nautical skill, and of presence of mind in the management of his vessel, and thereby caused the collision, but the act by which the woman died was not his act, nor was it a consequence immediate or direct of his act. He never left the deck of his own ship, nor did he send any missile from it to the other ship; neither in will nor in deed can he be considered to have been on board the British vessel. He can no more be considered by intendment of law to have been on board the British vessel than he would have been if his bad navigation had caused the Strathclyde to impale herself upon the Franconia, and so to sink. The jurisdiction of the English Court, therefore, cannot be founded on this contention.

The administration of the criminal law of England was formerly distributed among two tribunals; the Court of oyer and terminer took cognizance of offences committed in the body of a county, the Court of the Lord High Admiral of those committed on the sea.

A divisum imperium existed with respect to rivers and arms of the sea within the body of a county; each Court claimed concurrent jurisdiction over these waters.

Two statutes were passed for the purpose of reconciling these claims and for restricting the Court of the admiral to the high seas.

The first of these two statutes, namely, the statute of 13 Rich. 3, c. 5, entitled "What things the admiral and his deputy shall meddle," enacts that, -

"Forasmuch as a great and common clamour and complaints hath been oftentimes made before this time, and yet is, for that the admirals and their deputies hold their sessions within divers places of this realm, as well within franchise as without, accroaching to them greater authority than belongeth to their office, in

prejudice of our lord the king, and the common law of the realm, and in diminishing of divers franchises, and in destruction and impoverishing of the common people, it is accorded and assented, that the admirals and their deputies shall not meddle from henceforth of anything done within the realm, but only of a thing done upon the sea."

By 15 Rich. 2, c. 3, entitled "In what places the admiral's jurisdiction doth lie," it is

"Declared, ordained and established, that of all manner of contracts, pleas, and quarrels, and all other things rising within the bodies of the counties, as well by land as by water, and also of wreck of the sea, the admiral's Court shall have no manner of cognizance, power, nor jurisdiction; but all such manner of contracts, pleas, and quarrels, and all other things rising within the bodies of counties, as well by land as by water, as afore, and also wreck of the sea, shall be tried, determined, discussed, and remedied by the laws of the land, and not before nor by the admiral nor his lieutenant in anywise, nevertheless, of the death of a man, and of a maihem done in great ships, being and hovering in the main stream of great rivers, only beneath the bridges of the same rivers nigh to the sea, and in none other places of the same rivers, the admiral shall have cognizance."

This adjustment of jurisdiction continued until the 28 Hen. 8, c. 15, which transferred the jurisdiction to commissioners of oyer and terminer under the great seal, among whom was included the judge of the Admiralty Court, and ultimately this jurisdiction became regulated by the statutes 4 & 5 Wm. 4, c. 36, and 7 & 8 Vict. c. 2, by the former of which statutes the Central Criminal Court was established.

The jurisdiction which now exists over offences committed at sea is that which was once possessed by the Court of the admiral.

The county extends to low-water mark, where the "high seas" begin; between high and low-water mark, the Courts of oyer and terminer had jurisdiction when the tide was out, the Court of the admiral when the tide was in.

There appears to be no sufficient authority for saying that the high sea was ever considered to be within the realm, and, notwithstanding what is said by Hale in his treatises de Jure Maris and Pleas of the Crown, there is a total absence of precedents since the reign of Edward III., if indeed any existed then, to support the doctrine that the realm of England extends beyond the limits of counties.

I am not aware of any instance, none was cited to us, of the exercise of criminal jurisdiction over a foreign vessel for an offence

committed when she was not within a port or harbour of the inland waters of the realm.

Various statutes have been passed from time to time empowering what may be called inland authorities, such as justices of the peace, coroners, and the Lord Warden of the Cinque Ports, to try offences committed at sea. Some clauses in the Merchant Shipping Act it may be necessary to refer to hereafter; but it may be stated here that no statute will be found to authorize the exercise of the criminal jurisdiction over a foreign vessel not in one of our ports or inland waters.

It being, then, in my opinion, clear that the jurisdiction to try this prisoner was not derived from the common law, or the statute law, or the law of the High Court of Admiralty, what law did render the English Court competent for this purpose?

As I understand the contention on behalf of the Crown, the answer is, international law; in other words, by the consent of all civilized states, England has become entitled to include within her realm a marine league of sea, and therefore has jurisdiction over a foreign vessel within that limit.

It is, indeed, a most grave question whether, if this statement of international law were correct, nevertheless an Act of Parliament would not be required to empower the Court to exercise jurisdiction; but, waiving this consideration for the present, it becomes important in this view of the question to consider the sources from which we are to derive this doctrine of international law.

Too rudimental an inquiry must be avoided; but it must be remembered that the case is one prim¾ impressionis, of the greatest importance both to England and to other states; and the character of it in some degree necessitates a reference to first principles.

In the memorable answer, pronounced by Montesquieu to be rŽponse sans rŽplique, and framed by Lord Mansfield and Sir George Lee, of the British to the Prussian Government,

"The law of nations is raid to be founded upon justice, equity, convenience, and the reason of the thing, and confirmed by long usage."

It is more especially to this usage, as evidencing the consent of nations, that great judges, such, among others, as Lord Stowell and

Chancellor Kent, and great jurists of all countries, have continually referred.

"It has been contended," Lord Stowell says, "that such a sentence is perfectly legal, both on principle and authority. It is said that on principle the security and consummation of the capture is as complete in a neutral port as in the port of the belligerent himself. On the mere principle of security it may perhaps be so, but it is to be remembered that this is a matter not to be governed by abstract principles alone; the use and practice of nations have intervened, and shifted the matter from its foundations of that species; the expression which Grotius uses on these occasions (placuit gentibus) is, in my opinion, perfectly correct, intimating that there is a use and practice of nations to which we are now expected to conform": The Henrick and Maria. (1)

With respect to "justice, equity, convenience, and the reason of the thing," one particular class of authority has been much relied upon in the arguments of counsel, namely, the treatises of learned writers on law, and it is perhaps in this case especially important to assign a proper, and not an extravagant, value to these digests of the principles of public and international jurisprudence.

"All writers upon the law of nations unanimously acknowledge it," was a fact that weighed greatly with Lord Stowell in the case of the Maria, which established the belligerent's right of search.

Mr. Wheaton says:-

"Text writers of authority, shewing what is the approved usage of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent," are placed as the second branch of international law": Elem. of Int. Law, vol. i. p. 59.

Lord Mansfield, deciding a case in which ambassadorial privileges were concerned, said that he remembered a case before Lord Talbot, in which he

"Had declared a clear opinion that the law of nations was to be collected from the practice of different nations and the authority of writers. Accordingly he argued and determined from such instances and the authority of Grotius, Barbeyrac, Bynkershoek, Wiquefort, &c., there being no English writer of eminence upon the subject."

Chancellor Kent says:-

"In cases where the principal jurists agree the presumption will be very great in favour of the solidity of their maxims, and no civilized nation that does not arrogantly set all ordinary law and justice at defiance will venture to disregard the uniform sense of the established writers of international law": Kent's Com. vol. i. p. 19.

(1) 4 C. Rob. 54, 55.

Ortolan (Dipl. de la Mer. l. 1, p. 74) has some very sensible remarks on this subject, which he thus concludes:-

"Ces publicistes ont non-seulement fourni, pour la gestion des affaires extŽrieures, une branche de droit international, qui supplŽe aux lacunes des autres et avertit de leurs vices, mais ils ont m�me contribuŽ puissamment ˆ la formation et ˆ l'amŽlioration graduelle du droit international positif."

It is also the opinion of a very learned living jurist (Dr. Franz von Holzendorf, Encycl der Rechtsw. IV. Das EuropŠische Všlkerrecht, p. 935), that the usage and practice of international law is in great measure founded upon the tardy recognition of principles which have been long before taught and recommended by the voice of wise and discerning men, and that thus the fabric of international jurisprudence has been built up.

Of course the value of these responsa prudentum is affected by various circumstances; for instance, the period at which the particular work was written, the general reputation of the writer, the reception which his work has met with from the authorities of civilized states, are circumstances, which, though in no case rendering his opinion a substitute for reason, may enhance or derogate from the consideration due to it.

With these preliminary observations, I proceed to inquire what is the nature and extent of the jurisdiction over the high seas, which international law confers upon or concedes to the sovereign of the adjacent territory.

Whatever may have been the claims asserted by nations in times past - and perhaps no nation has been more extravagant than England in this matter - it is at the present time an unquestionable proposition of international jurisprudence, that the high seas are of right navigable by the ships of all states. Whether the reasons upon which this liberty of navigation rests be, as some jurists say, that the open sea is incapable of continuous occupation and insusceptible of permanent appropriation, or, as other jurists say, that the use of it is inexhaustible, and, therefore, common to all mankind; or, whether it rests upon both these, or upon other reasons also, it is unnecessary to inquire. This liberty of navigation is a fact recognised by all civilized states.

An important corollary of this proposition is that the merchant

vessel (with ships of war we are not now concerned) on the open sea is subject only to the law of her flag, that is, the law of the state to which she belongs.

The next proposition, though it be of an elementary kind, to which attention should be drawn, is, that every state is entitled to exclusive dominion over its own territory, that is, not only over the soil and over all subjects, but over all foreigners commorant therein.

"When," says Marshall, C.J., "private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable, to the jurisdiction of the country": Schooner Exchange v. McFaddon and Others. (1)

The question as to dominion over portions of the seas inclosed within headlands or contiguous shores, such as the King's Chambers, is not now under consideration. It is enough to say that within this term "territory" are certainly comprised the ports and harbours, and the space between the flux and reflux of tide, or the land up to the furthest point at which the tide recedes. But it is at this point that the difficulty presented by the case before us begins, and here the following questions present themselves for solution:-

1. Is a state entitled to any extension of dominion beyond low-water mark?

2. If so, how far does this territory, or do these territorial waters, as they are usually called, extend?

3. Has a state the same dominion over these territorial waters as over the territory of her soil and in her ports, or is it of a more limited character and confined to certain purposes?

With respect to the first of these questions the answer may be given without doubt or hesitation, namely, that a state is entitled to a certain extension of territory, in a certain sense of that word, beyond low-water mark.

With respect to the second question, the distance to which the territorial waters extend, it appears on an examination of the

(1) 7 Cranch's Rep. (U.S.) 145.

authorities that the distance has varied (setting aside even more extravagant claims) from 100 to 3 miles, the present limit.

Grotius may be said to be the first accredited writer who introduced the principle of limiting the dominion to the distance to which protection could reach it from the shore:-

"Videtur autem imperium in maris portionem eadem ratione acquiri, qua imperia alia, id est, ut supra diximus, ratione personarum et ratione territorii. Ratione personarum, ut si classis, qui maritimus est exercitus, aliquo in loco maris se habeat ratione territorii, quatenus ex terra cogi possunt, qui in proxima maris parte versantur, nec minus quam si in ipsa terra reperirentur": Grotius de Jure Belli et P., l. 2, cap. iii. s. 13, s. 2.

Bynkershoek, adopting this principle, pronounced "potestatem terr¾ finiri ubi finitur armorum vis" or (De Dom. Maris, c. 2) "quousque tormenta exploduntur," a phrase constantly repeated by subsequent jurists, but he carried the idea of dominium still further:-

"Etenim transitum, quamvis inermem et innoxium, a domino recte prohiberi omnino est dicendum, licet rursus contradicat ˜ MŽyas (do J. B. et P. l. 2, c. 13, n. 12) .... de terra marique illud ipse negat, sed nullo jure. Nemo, me invito, re mea recte utitur fruitur, alia est humanitatis, alia juris regula, ast longum esset id argumentum digne persequi. Sub conditione navigatio prohibebitur, quum maris usus, c¾tera concessus, in hac vel illa specie negetur; ut si quis piscari velit, si eo vel eo transmittere, si hac illacve merces portare, si non salutare, vel non co, quo imperatum est, modo, si non vectigal solvere, ut qu¾ ejus generis sunt sexcenta h¾c enim recte imperat, qui imperat mari, seu extero, seu proximo": Bynk. De Dom. Maris, c. iv.

Wolff, writing later, in 1749 A.D., says (Jus Gentium, &c., s. 128):-

"Partes maris a gentibus, quoe idem accolunt, occupari possunt, quousque dominium in iisdem tueri possunt. Idem intelligitur de finibus et fretis. Etenim in istiusmodi maris partibus prope littora usus, qui in piscatione et collectione rerum in mari nascentium, non in sola navigatione consistit, semper innoxius, cum mare regionibus maritimis vicem munimenti pr¾beat, ac ideo intersit accolarum, ne cuilibet ibidem cum armatis navibus versari liceat."

Vattel (1), who borrowed largely from Wolff, and whom he often merely abridged, says:-

"It is not easy to determine to what distance a nation may extend its rights over the sea by which it is surrounded. Bodinus pretends that according to the common right of all maritime nations the prince's dominion extends to the distance of thirty leagues from the coast. But this exact determination can only

(1) Vattel's Law of Nations, book i. chap. xxiii. sec. 289.

be founded on a general consent of nations, which it would be difficult to prove. Each state may on this head make what regulation it pleases, so far as respects the transactions of the citizens with each other, or their concerns with the sovereign; but between nation and nation all that can reasonably be said is, that in general the dominion of the state over the neighbouring sea extends as far as her safety renders it necessary and her power is able to assert it."

But this author draws an important distinction between the authority of a state over what has been called the maritime belt and the port or harbour. He says (1):-

"The shores of the sea incontestably belong to the nation that possesses the country of which they are a part, and they belong to the class of public things. If civilians have set them down as things common to all mankind (res communes), it is only in regard to their use, and we are not thence to conclude that they considered them as independent of the empire; the very contrary appears from a great number of laws." Observe what follows: "Ports and harbours are manifestly an appendage to, and even a part of, the country, and consequently are the property of the nation. Whatever is said of the land itself will equally apply to them, so far as respects the consequences of the domain and of the empire."

When Azuni wrote in 1796 his "Systema dei Principii del Diritto Maritimo," he complained that the limit was still undecided (sempre combattuto e non ancora deciso), and hoped the three miles distance would be agreed upon, as "without doubt" it was the greatest distance cannon shot could ever be made to reach: vol. i., 67-68.

Since this period, the three-mile belt of water has been adopted in treaties and conventions, though a longer distance is still claimed for purposes of protecting the revenue against smuggling.

Chancellor Kent says (2):-

"It is difficult to draw any precise or determinate conclusion, amidst the variety of opinions, as to the distance to which a state may lawfully extend its exclusive dominion over the sea adjoining its territories, and beyond those portions of the sea which are embraced by harbours, gulfs, bays, and estuaries, and over which its jurisdiction unquestionably extends. All that can reasonably be asserted is, that the dominion of the sovereign of the shore over the contiguous sea extends as far as is requisite for his safety, and for some lawful end. A more extended dominion must rest entirely upon force and maritime supremacy. According to the current of modern authority, the general territorial jurisdiction extends into the sea as far as cannon-shot will reach, and no farther, and this is generally calculated to be a marino league; and the Congress of the United

(1) Vattel's Law of Nations, book i. chap. xxiii. sec. 290.

(2) Kent's Com. vol. i. pp. 28, 29 (ed. 1844).

States have recognised this limitation by authorizing the district courts to take cognizance of all captures made within a marine league of the American shores. The executive authority of this country in 1793 considered the whole of Delaware Bay to be within our territorial jurisdiction, and it rested its claim upon those authorities which admit that gulfs, channels, and arms of the sea belong to the people with whose lands they are encompassed. It was intimated that the law of nations would justify the United States in attaching to their coasts an extent into the sea beyond the reach of cannon-shot.

"Considering the great extent of the line of the American coasts, we have a right to claim, for fiscal and defensive regulations, a liberal extension of maritime jurisdiction, and it would not be unreasonable, as I apprehend, to assume for domestic purposes connected with our safety and welfare, the control of the waters on our coasts, though included within lines stretching from quite distant headlands, as, for instance, from Cape Ann to Cape Cod, and from Nantucket to Montauk Point, and from that point to the capes of the Delaware, and from the south cape of Florida to the Mississippi. It is certain that our Government would be disposed to view with some uneasiness and sensibility, in the case of war between other maritime powers, the use of the waters of our coast, far beyond the reach of cannon-shot, as cruising ground for belligerent purposes."

Mr. Wheaton says (s. 188) (1):-

"The reasons which forbid the assertion of an exclusive proprietary right to the sea in general, will be found inapplicable to the particular portions of that element included in the above designations.

"(1.) Thus, in respect to those portions of the sea which form the ports, harbours, bays, and mouths of rivers of any state where the tide ebbs and flows, its exclusive right of property as well as sovereignty in those waters may well be maintained consistently with both the reasons above mentioned, as applicable to the sea in general. The state possessing the adjacent territory, by which these waters are partially surrounded and inclosed, has that physical power of constantly acting upon them, and at the same time of excluding at its pleasure the action of any other state or person which, as we have already seen, constitutes possession. These waters cannot be considered as having been intended by the Creator for the common use of all mankind any more than the adjacent land which has already been appropriated by a particular people. Neither the material nor the moral obstacle to the exercise of the exclusive rights of property and dominion exists in this case. Consequently the state within whose territorial limits these waters are included has the right of excluding every other nation from their use," - a very important test of dominium, I may observe in passing. The writer continues, - "The exercise of this right may be modified by compact, express or implied; but its existence is founded upon the mutual independence of nations, which entitles every state to judge for itself as to the manner in which the right is to be exercised subject to the equal reciprocal rights of all other states to establish similar regulations in respect to their own waters." The learned writer, having thus spoken of contiguous

(1) Wheaton's International Law (Dana), pp. 188-190.

waters, continues (s. 189): "It may perhaps be thought that these considerations do not apply with the same force to those portions of the sea which wash the coasts of any particular state, within the distance of a marino league, or as far as a cannon-shot will reach from the shore. The physical power of exercising an exclusive property and jurisdiction, and of excluding the action of other nations within those limits, exists to a certain degree; but the moral power may perhaps seem to extend no further than to exclude the action of other nations to the injury of the state by which this right is claimed. It is upon this ground that is founded the acknowledged immunity of a neutral state from the exercise of acts of hostility by one belligerent power against another, within those limits. This claim has, however, been sometimes extended to exclude other nations from the innocent use of the waters washing the shores of a particular state in peace and in war; as, for example, for the purpose of participating in the fishery, which is generally appropriated to the subjects of the state within that distance of the coasts. This exclusive claim is sanctioned both by usage and convention, and must be considered as forming a part of the positive law of nations."

In the valuable TraitŽ des Prises Maritimes, published during the Crimean War (1855) (vol. i., p. 93), it is stated that the "portŽe du canon" is recognised as the true limit of territorial waters. Lastly, MassŽ, in his recent edition of Le Droit Commercial dans ses rapports avec le Droit des Gens, observes:-

That a state has not "la pleine propriŽtŽ de la mer littorale: il a seulement juridiction sur cette partie do la mer: 'Quamvis in mare non sit territorium,' dit Roccus (cent. 2, resp. 3, n. 10) 'tamen in eo jurisdictio exercetur (3):' ou plut™t la propriŽtŽ est grŽvŽe d'une servitude naturelle au profit de tous les peuples navigateurs. Cependant il en est autrement pour la p�che, qui ne peut �tre faite que par, les habitants du littoral." He then says:- "C'est, du reste, un point fort difficile ˆ dŽcider en thŽorie pure, que celui de savoir quelle est l'Žtendue de la mer littorale."

He proceeds to examine the different theories upon the subject, and concludes by adopting that of the cannon-shot or three-miles distance, but admits that a greater distance is claimed by some nations.

The third question, though touched upon in the preceding citations, remains to be substantively considered; it is one of much importance, viz., whether, admitting that the state has a dominion over three miles of adjacent water, it is the same dominion which the possessor has over her land and her ports, or is it of a more limited character - limited to the purpose of protecting the adjacent shore, for which it was granted, and not extending to a general sovereignty over all passing vessels, and therefore not improbably called ligne de respect? Pando, the Spanish jurist

(following the authority and adopting almost the very words of Martens), observes (Elementos del Derecho Internacional, p. 155):-

"But we ought not to carry beyond certain limits what a writer calls the l’nea, de respecto. The moaning of this conventional phrase is that we should not do within this line anything that the government of the country has a right to prevent, as being an attempt on the property and security of the nation."

An authority relied upon by the counsel for the Crown was Loccenius de Jure Maritimo, chap. iv. (De imperio Maris, s. 5.) That author observes that some learned jurists have claimed a jurisdiction of two days' journey from the coasts, others sixty miles, others one hundred; and then he proceeds, -

"Alii strictius et brevius determinant; pr¾sertim si mare interjacens eousque se non extendat: nimirum ut unicuique juxta sua littora competat dominium; extra ea, quatenus classe locum occupavit, vel quousque ejus territorium juxta mare porrigitur. .... Communiter tamen delictum in mari particulari perpetratum in illa civitate vel republica puniri solet, ad cujus jurisdictionem mare spectat, cujusque portui locus ille maris propinquior est. ... Sed si crimen in mari inter duas urbes ¾qualiter distantes commissum sit, ejus cognitio ad utramque per concursum jurisdictionis pertinebit; quia delictum commissum est in confinio, quod est commune utriusque civitatis. Si vero eadem pars maris ad plures pertineat, illi omnes poterunt cognoscere; ita tamen ut sit pr¾ventioni locus. Pr¾venire autem dicitur, qui delinquentem cepit in mari, licet alius judex prius eum citarit. ...."

Surely the extravagance of these propositions according to recognised modern international law carries with them their own refutation.

It is right to mention here that the authority of Heineccius was properly cited by the counsel for the Crown as supporting his proposition. The passage is, -

"Exteri, qui in territorio nostro sunt, sunt subditi temporarii; ita qui in mari nostro navigant. Hinc nullum est dubium quin puniri a Belgis possit, qui in mari hoc australi piraticam exercuit, vel homicidium commisit, quamvis sit exterus." (1)

Another authority relied upon was Casaregis; that writer gives his opinion boldly:-

"Eandem prorsus jurisdictionem, qua princeps in terrestri suo territorio potitur, etiam habet in mari eidem suo terrestri territorio adjacente; nam totum illud mare, quod suo territorio usque ad centum milliaria, non interruptum ab jurisdictione alterius vicini principis, adjacet, non minus reputatur suum proprium territorium, quam tota terra in qua ipso regit ut dominatur. ...."

(1) Heineccius, lib. ii. cap. iii. sec. xii. ad Grotium.

"Ideoque in vim talis jurisdictionis potest Princeps Gabellas et Vectigalia in mari suo, suisque portubus imponere, easque ˆ vehentibus merces per mare suum exigere ....; inibique navigationes permittere, vol prohibere, vol alias quascumque loges statuere, etsi adversus pr¾scripta factum fuerit; naves arrestare, ut merces confiscare valet. ..."

Casaregis then proceeds to state pretty broadly the extent of jurisdiction over foreigners in their territorial waters:-

"Potest insuper omnes, ut quoslibet delinquentes in navibus, vol navigiis existentibus in illius portubus, vel ejus mari dicto suo territorio adjacente punire, quinimmo capitaneus, seu magister navis, vol cujuslibet navigii tales delinquenteseidem principi, vel ejus judici pr¾sentare ut per eum juxta illius leges puniantur ...

"Pariterque pro debitis civilibus ad instantiam creditorum potest naves sequestrari, vel arrestari facere. ..."

With all respect for the opinion of Casaregis I must express my dissent from these propositions of international law; they may be the logical and legitimate conclusions from the premiss that the adjacent waters are as much, and in as unlimited a sense, territory as the land, but if so, they prove the error of the premiss.

The learned American writer, Mr. Bishop, appears also to think that this jurisdiction is exclusive and absolute, susceptible of no limitation not imposed by itself, and that over these waters foreign vessels have no right to pass if the implied licence under which they do so be withdrawn by the state: Criminal Law, I., sect. 76.

A much juster description of the authority appears to me to be given by Lord Stowell (1):-

"Thirdly, it is an observation of law that the passage of ships over territorial portions of the sea or external water is a thing less guarded than the passage of armies over land, and for obvious reasons. An army, in the strictest state of discipline, can hardly pass into a country without great inconvenience to the inhabitants; roads are broken up, the price of provisions is raised, the sick are quartered on individuals, and a general uneasiness and terror is excited; but the passage of two or three vessels or of a fleet over external waters may be neither felt nor perceived. For this reason the act of inoffensively passing over such portions of water, without any violence committed there, is not considered as any violation of territory belonging to a neutral state; permission is not usually required; such waters are considered as the common thoroughfare of nations, though they may be so far territory as that any actual exercise of hostility is prohibited therein."

The same principle is laid down in the case of the United States v. Kessler (2), heard before the Circuit Court of the United States,

(1) The Twee Gebroeders, 3 C. Rob. 352.

(2) 1 Baldwin's Rep. pp. 15, 17.

Pennsylvania. The defendant was indicted for robbery and piracy on the high seas, on board a brig called L'Eclair, a foreign vessel, belonging exclusively to French owners, and sailing under the French flag. Mr. Brewster, the counsel for the defendant, said that he had no evidence to offer. He stated his ground of defence:-

"1. That the evidence had not made out a case of general piracy, but that the defendant, if guilty of anything, is guilty of a piracy, made so by the Acts of Congress.

"2. That the power to define and punish piracy, given to Congress by the constitution, does not extend to any vessel under any flag but that of the United States, although the offender be a citizen of the United States; that this being a French vessel, and the defendant a mariner on board of her, he had, for the time being, expatriated himself, and if guilty of any offence, can be punished only by the laws of France; that there is no evidence that the defendant is a citizen of the United States; that the vessel was not scuttled, nor the robbery committed within a marine league of the coast of the United States, and, if they were, yet the Acts of Congress do not make such acts piracy; that the indictment is imperfect and insufficient; there is no averment that the vessel was American; it is necessary to aver that the defendant is an American citizen, and that the owners were Americans."

It was holden by the Court that the piracy was not piracy in the international sense, but by the Acts of Congress; and with regard to the second question, as to the offence having been committed within a marine league of the coast, and therefore within the territory of the United States, the learned judge (Judge Hopkinson) expressed himself as follows:-

"It is my duty to go on one step further on this subject; you will remark that this point becomes important to the prosecution only on account of the foreign ownership of this brig. Had she been American, then, the crime being committed on the high seas, it would have been immaterial whether it was within or without the marine league of the coast, either of this or any other country; but it is argued that although we may not have jurisdiction of an offence committed on the high seas on board of a foreign vessel at a greater distance than three miles from the shore, yet if it be within that distance we obtain a right to try and punish it. I am not of this opinion. The jurisdiction of this Court is derived wholly from the Acts of Congress on this subject. The description of the place to which or over which it extends is the high seas. If, then, the space within the marine league is not comprehended within this description, this Court has no jurisdiction over it; if it be comprehended, as it certainly is, then it is so because it is a part of the high seas in all respects and to all purposes the same as any other part of the high seas. Nothing is added to the jurisdiction of the courts of the United States by reason of the offence having been committed within this distance of their coast, nothing is taken from it by reason of its having been committed

within the jurisdictional limits of a foreign government, within a marine league of the shore, if done on the high seas, which are held to be any waters on the sea coast, without the boundaries of low-water mark. It follows from these principles that if this Court has no power under the Act of Congress to try and punish this offence committed on board of a foreign vessel on the ocean, it acquires no such power because she was within a marine league of our coast when the offence was committed. The principle on which nations claim this extension of their authority and jurisdictional rights for a certain distance beyond their shores is to protect their safety, peace, and honour from invasion, disturbance, and insult. They will not have their strand made a theatre of violence and bloodshed by contending belligerents. Some distance must be assumed. It varies by different jurists from one league to thirty, and again as far as a cannon will carry a ball. Such limits may be well enough for their object, but would be extraordinary boundaries of the judicial power and jurisdiction of a court of law.

"It is my opinion that whether this offence was committed within or without a marine league from the coast of the United States is of no importance to the question of the jurisdiction of this Court to hear and determine it:" United States v. Kessler. (1)

The following case deserves for several reasons attentive consideration. The judge, Sir John Nicholl, had been Queen's Advocate during a great part of the French Revolution; he was well versed in international law, and had a high judicial reputation.

In the case of Rex v. 49 Casks of Brandy (2), he observed:

"Again, it is said that there is no instance where the Admiralty has set up a claim; but is there any instance where notice has been given to the Admiralty that the goods have been picked up and brought in from a considerable distance beyond low-water mark? These goods were picked up floating at sea, and carried either to Poole or Weymouth, and was it not the duty of the lord, or his steward, to give notice where goods had been brought in from beyond low-water mark; for as to the right of the lord extending three miles beyond low water, it is quite extravagant as a jurisdiction belonging to any manor. As between nation and nation the territorial right may, by a sort of tacit understanding, be extended to three miles, but that rests upon different principles, viz., that their own subjects shall not be disturbed in their fishing, and particularly in their coasting trade and communications between place and place during war; they would be exposed to danger if hostilities were allowed to be carried on between belligerents nearer to the shore than three miles; but no person ever heard of a land jurisdiction of the body of a county which extended to three miles from the coast."

So Merlin, in his article on "Mer," (3) says:-

"De toutes les choses qui sont communes aux hommes, il n'y en a point dont l'usage ait plus d'Žtendue et soit plus universel que celui des mers, puisqu'il est

(1) 1 Baldwin's Rep. pp. 34, 35.

(2) 3 Hagg. Ad. pp. 289, 290.

(3) Merlin, Rep. de Juris, vol. x. p. 135.

naturellement propre ˆ toutes les nations. D'o� il suit, qu'aucun souverain n'a droit de s'attribuer l'empire de la mer.

"Mais la libertŽ d'user de la mer doit avoir des, bornes, pour prŽvenir les inconvŽniens qui auraient lieu si chacun en usait selon ses vues particuli�res: en effet, chaque souverain, Žtant bien fondŽ a dŽfendre le commerce Žtranger dans ses possessions, et les garantir d'insulte" [observe the reason of the jurisdiction conceded], - "peut emp�cher qu'on n'en approche qu'ˆ une certaine distance.

"Ce principe Žtabli, il n'a plus ŽtŽ question que de convenir, entre les souverains, de la distance jusqu'ˆ laquelle s'Žtendrait leur domination respective; et c'est ˆ quoi ont pourvu les traitŽs de paix et de commerce, qui ont fixŽ cette distance ˆ deux lieues de la c™te. Ainsi, au-delˆ de cette distance, la navigation doit absolument �tre libre, et par consequent �tre exempte de toute visite de la part des commandans des garde-c™tes; mais, en decˆ, on est suspect de commerce clandestin et prohibŽ; c'est pourquoi on est sujet ˆ �tre visitŽ, et m�me ˆ voir confisquer les marchandises et la navire, ˆ moins qu'il n'y ait preuve qu'on n'a excŽdŽ la distance dŽterminŽe, que par force majeure."

The privilege of the three-mile belt, therefore, is granted, according to this author, for the purposes of self-defence against attacks in war and smuggling in peace.

So M. Ortolan (1), in his chapter on "Mer territoriale," observes that the right of the state to the adjacent sea

"Est fondŽ sur son droit de dŽfense;" she cannot close these waters as she may close her ports, "le droit qui existe sur la mer territoriale n'est pas un droit de propriŽtŽ; on ne peut pas dire que l'ƒtat, propriŽtaire des c™tes, soit propriŽtaire de cette mer." He further says, "On sent que respace maritime soumis ainsi, non pas ˆ un droit de propriŽtŽ, mais a la souverainetŽ d'un ƒtat, doit �tre nŽcessairement renfermŽ dans d'Žtroites limites. C'est ˆ ce rŽgime complet que rŽpondent expressŽment la dŽnomination de mer territoriale, et la limite commune de la plus forte portŽe du canon." (2)

Bluntschli (3) seems to recognize the distinction in principle between the passing and the, so to speak, commorant ship. He says:

"Les navires, qui pŽnŽtrent dans les eaux d'un ƒtat Žtranger, jettent l'ancre dans un port Žtranger, remontent un fleuve, une riviŽre, etc., sont soumis ˆ la souverainetŽ de l'ƒtat Žtranger, tant qu'ils restent sur le territoire maritime de ce dernier." His note is: "Les navires Žtrangers, comme les voyageurs Žtrangers, ne peuvent pas se soustraire ˆ la souverainetŽ de l'ƒtat o� ils se trouvent. Cette souverainetŽ se fait sentir, aussi bien sur la mer dŽpendant du territoire, que sur la terre ferme; il n'existe aucun motif d'accorder des immunitŽs aux navires Žtrangers. L'ƒtat Žtranger exerce donc la police sur tous les navires mouillŽs dans le port, et ses tribunaux sont compŽtents pour conna”tre des proc�s civils, comme aussi des dŽlits

(1) Diplo de la Mer, vol. i. pp. 174, 175.

(2) Diplo de la Mer, vol. i. p. 177.

(3) Le Droit International Codifie, livre iv. §§ 319, 322.

ou contraventions des matelots Žtrangers, lorsque le navire se trouve dans les eaux qui dŽpendent du territoire:" § 319.

"Les navires qui se bornent ˆ longer les c™tes d'un Etat, dans la partie de la mer qui fait partie du territoire de ce dernier, sont soumis temporairement ˆ la souverainetŽ de cet ƒtat, en ce sens, qu'ils doivent respecter les ordonnances militaires, ou de police, prises par lui pour la sžretŽ de son territoire et de la population c™ti�re." And his note to this is: "V. art. 302 et 310. - La juridiction de l'ƒtat riverain ne s'Žtend, sur la 'mer voisine,' que dans la mesure jugŽe nŽcessaire par la police et les autoritŽs militaires. Le navire est, sous tous les autres rapports, aussi libre que s'il se trouvait en pleine mer, c'est-ˆ-dire qu'il est regardŽ comme une partie flottante des territoires de l'ƒtat dont il dŽpend:" § 322.

The authority of Kaltenborn, which is certainly respectable, he writes in 1851, is directly in favour of the exemption of the passing vessel from the law of the state. [Endlich muss wohl davon als befreit ansehen die bloss vorŸbersegelnden Schiffe.] He differs from Heffter, inasmuch as Heffter applies the same exemption to vessels forced into port by stress of weather. Heffter appears to have changed his opinion to a certain extent on the question, but in the French edition of 1873, he expressly exempts from the territorial jurisdiction "les navires ne faisant que traverser les eaux qui coulent en avant d'un port:" Droit Inter. § 72, v. 3. This author appears to have had in his mind the passage in the Digest, l. v. t. l. xix.:

"Nam ubi sic venit, ut confestim discedat, et quasi a viatore, vel eo qui transvehebatur vel eo qui pareplei, emit, durissimum est, quotquot locis quis navigans vel iter faciens delatus est, tot locis se defendere."

The sound conclusions which result from the investigation of the authorities which have been referred to appear to me to be these:-

The consensus of civilised independent states has recognised a maritime extension of frontier to the distance of three miles from low-water mark, because such a frontier or belt of water is necessary for the defence and security of the adjacent state.

It is for the attainment of these particular objects that a dominium has been granted over this portion of the high seas.

This proposition is materially different from the proposition contended for, namely, that it is competent to a state to exercise within these waters the same rights of jurisdiction and property which appertain to it in respect to its lands and its ports. There is one obvious test by which the two sovereignties may be distinguished.

According to modern international law, it is certainly a right incident to each state to refuse a passage to foreigners over its territory by land, whether in time of peace or war. But it does not appear to have the same right with respect to preventing the passage of foreign ships over this portion of the high seas.

In the former case there is no jus transitus; in the latter case there is.

The reason of the thing, that is, the defence and security of the state, does not require or warrant the exclusion of peaceable foreign vessels from passing over these waters; and the custom and usage of nations has not sanctioned it.

Consequences fraught with mischief and injustice might flow from the opposite doctrine, which would render applicable to a foreign vessel while in itinere from one foreign port to another, passing over these waters, all the criminal law of the adjacent territory. No single instance has been brought to our notice of the practical exercise by any nation of this jurisdiction.

The authorities cited in order to shew that a foreign vessel is subject to the laws of the foreign port which she enters appear to me inapplicable to the present case.

A foreign merchant vessel going into the port of a foreign state subjects herself to the ordinary law of the place during the period of her commorancy there; she is as much a subditus temporaneus as the individual who visits the interior of the country for the purposes of pleasure or business.

It may be that the foreign state, influenced by considerations of public policy or by treaty obligations, chooses to forego the exercise of her law over the foreign vessel and crew, or exercises it only when they disturb the peace and good order of the port. This is the course which France has usually pursued; an illustration of it is furnished by the case cited from Dalloz (Juris Gen. 1859, "Cour de Cassation," pp. 88, 89), the result of which is correctly stated in the marginal note.

"Les b‰timents de commerce Žtrangers, stationnant dans un port fran�ais, sont soumis ˆ la juridiction territoriale pour ce qui concerne les dŽlits entre Žtrangers et notamment entre gens de l'Žquipage, dont la rŽpression n'intŽresse pas exclusivement la discipline et l'administration intŽrieure du bord: C. Nap. 3; Av. Cons. d'Et. 20 Nov. 1806."

"Il en est ainsi, surtout, lorsque ces dŽlits sont de nature ˆ compromettre la tranquillitŽ du port, ou lorsque l'intervention de l'autoritŽ locale a ŽtŽ rŽclamŽe."

I cannot entertain any doubt that in this country a foreign sailor, complaining of the ill-treatment of his master on board a foreign ship in an English port, would be entitled to the protection of an English court of justice.

If, indeed, as has been contended, there be no difference between the jurisdiction by the adjacent state over vessels in ports and over passing and commorant vessels, then the whole criminal law of England was applicable to the crew and those on board the German vessel, so long as she was within a marine league of the English shore.

The consequences of such a position of law appear to me, especially in the absence of any precedent, sufficient to render it untenable.

There is yet another argument, already partially adverted to, which appears to me entitled to great weight in an English court of justice.

Upon the subject of the three-miles belt of territorial water, Parliament has frequently legislated. It might perhaps be not impertinently asked, why, if these waters are territorial in the same sense as the land, and those who traverse them are already subject to the law. But, passing by this observation, it will be found on examination of the statutes that the provisions in them are either framed exclusively for British subjects and ships, or that they relate to the protection and peace of the state.

The statutes are as follows:-

By the existing Customs Consolidation Act, 16 & 17 Vict. c. 10, and section 212, it is enacted that, "If any ship or boat belonging wholly or in part to Her Majesty's subjects, or having half the persons on board subjects of Her Majesty, shall be found or discovered to have been within four leagues of that part of the coast of the United Kingdom which is between the North Foreland, on the coast of Kent, and Beachy Head, on the coast of Sussex, or within eight leagues of any other part of the coast of the United Kingdom; or if any foreign ship or boat having one or more subjects of Her Majesty on board, shall be found or discovered to have been within three leagues of the coast of the United Kingdom, or if any foreign ship or boat shall be found or discovered to have been within one league of the coast of the United Kingdom, or if any ship or boat shall be found or discovered to have been within one league of the Channel Islands, any such ship or boat so found or discovered, having on board or in any manner attached thereto, or having had on board or in any manner attached thereto, or conveying

or having conveyed in any manner, any spirits, &c., &c., then and in every such case the said spirits, &c. &c., and also the ship or boat, shall be forfeited."

By 33 & 34 Vict c. 90 (Foreign Enlistment Act), it is enacted, s. 2, "This Act shall extend to all the dominions of Her Majesty, including the adjacent territorial waters."

Sect. 14: "If, during the continuance of any war in which Her Majesty may be neutral, any ship, goods, or merchandize, captured as prize of war within the territorial jurisdiction of Her Majesty, in violation of the neutrality of this realm, or captured by any ship which may have been built, equipped, commissioned, or despatched, or the force of which may have been augmented, contrary to the provisions of this Act, are brought within the limits of Her Majesty's dominions by the captor, or any agent of the captor, or by any person having come into possession thereof, with knowledge that the same was prize of war so captured as aforesaid, it shall be lawful for the original owner of such prize, or his agent, or for any person authorized in that behalf by the government of the foreign state to which such owner belongs, to make application to the Court of Admiralty for seizure and detention of such prize, and the Court shall, on due proof of the facts, order such prize to be restored."

By 17 & 18 Vict. c. 104, part IX., s. 502, it is enacted, "The ninth part of this Act shall apply to the whole of Her Majesty's dominions."

Ib., Part X., s. 517: "The tenth part of this Act shall in all cases, where no particular country is mentioned, apply to the whole of Her Majesty's dominions."

Sect. 527: "Whenever any injury has, in any part of the world, been caused to any property belonging to Her Majesty or to any of Her Majesty's subjects, by any foreign ship, if at any time thereafter such ship is found in any port or river of the United Kingdom, or within three miles of the coast thereof, it shall be lawful for the judge of any Courts of record in the United Kingdom, or for the judge of the High Court of Admiralty, or, in Scotland, the Court of Session, or the sheriff of the county within whose jurisdiction such ship may be, upon its being shewn to him by any person applying summarily that such injury was probably caused by the misconduct or want of skill of the master or mariners of such ship, to issue an order directed to any officer of customs or other officer named by such judge, requiring him to detain such ship until such time as the owner, master, or consignee thereof, has made satisfaction in respect of such injury, or has given security, to be approved by the judge, to abide the event of any action, suit, or other legal proceeding that may be instituted in respect of such injury, and to pay all costs and damages that may be awarded thereon; and any officer of customs or other officer to whom such order is directed shall detain such ship accordingly."

By 18 & 19 Vict. c. 91, s. 21 (Merchant Shipping Act Amendment): "If any person, being a British subject, charged with having committed any crime or offence on board any British ship on the high seas or in any foreign port or harbour, or if any person, not being a British subject, charged with having committed any crime or offence on board any British ship on the high seas, is found within the jurisdiction of any Court of justice in Her Majesty's dominions, which would have had cognizance of such crime or offence if committed within the limits of its ordinary jurisdiction, such Court shall have jurisdiction to hear and try the case as if such crime or offence had been committed within such limits."

The foreign ship is not mentioned in this section, which is

therefore applicable only to British ships, because it is an established principle as to the construction of a statute that it should be construed, if the words will permit, so as to be in accordance with the principles of international law.

By 25 & 26 Vict. c. 63, s. 54 (the Merchant Shipping Acts, &c., Amendment): "The owners of any ship, whether British or foreign, shall not, in cases where all or any of the following events occur, without their actual fault or privity" (here the different events are specified) "be answerable in damages in respect of loss of life or personal injury, either alone or together, with loss or damage to ships, boats, goods, merchandise, &c., to an aggregate amount exceeding 15l. for each ton of their ship's tonnage; nor in respect of loss or damage to ships, goods, merchandise, &c., whether there be in addition loss of life or personal injury or not, to an aggregate amount exceeding 8l. for each ton of the ship's tonnage," &c.

Then in the same section there are two other provisions made concerning the measurement of foreign ships.

By 36 & 37 Vict. c. 85, s. 16 (Merchant Shipping Acts Amendment), it is enacted, "In every case of collision between two vessels, it shall be the duty of the master or person in charge of each vessel, if and so far as he can do so without danger to his own vessel, crew, and passengers (if any), to stay by the other vessel until he has ascertained that she has no need of further assistance, and to render to the other vessel, her master, crew, and passengers (if any) such assistance as may be practicable and as may be necessary in order to save them from any danger caused by the collision; and also to give to the master or person in charge of the other vessel the name of his own vessel, and of her port of registry, or of the port or place to which she belongs, and also the names of the ports and places from which and to which she is bound.

"If he fails so to do, and no reasonable cause for such failure is shewn, the collision shall, in the absence of proof to the contrary, be deemed to have been caused by his wrongful acts, neglect, or default."

So far the statute applies to all vessels, and then follows a section making the offence criminal, but especially confining it to the navigation of British vessels:-

"Every master and person in charge of a British vessel who fails, without reasonable cause, to render such assistance or give such information as aforesaid shall be deemed guilty of a misdemeanor, and if he is a certificated officer an inquiry into his conduct may be held, and his certificate may be cancelled or suspended."

Then the statute continues with a provision as to civil actions applicable to all vessels:-

Sect. 17: "If in any case of collision it is proved to the Court before which the case is tried that any of the regulations for preventing collision contained in

or made under the Merchant Shipping Acts, 1854 to 1873, has been infringed, the ship by which such regulation has been infringed shall be deemed to be in fault, unless it is shewn to the satisfaction of the Court that the circumstances of the case made departure from the regulation necessary."

We are now in effect and substance asked to extend the criminal jurisdiction confined by this statute to the masters of British vessels to the master of a foreign vessel.

Upon the whole, I am of opinion that the Court had no jurisdiction over this foreigner for an offence committed on board a foreign ship on the high seas, though within three miles of the coast; that he is governed by the law of the state to which his flag belongs; and that the conviction cannot be sustained.

LINDLEY, J. In order to determine this case it is necessary to consider, - 1. Whether that part of the high seas which adjoins the English coasts (and which for convenience may be called its coast waters) is subject to the criminal law of England: If it is, then - 2. Whether that law applies to foreigners when on board a foreign ship sailing over such coast waters; and if it does, to what extent.

The distance seawards from the shores of England to which its criminal law extends is not declared in any statute and has never been authoritatively decided. The question must therefore be investigated upon principle.

It is laid down in English law books of the highest authority that the seas adjoining the English coast are part of the realm of England, and are subject to the dominion of the Crown. (1) Indeed there is considerable authority (2) for saying that those seas are to some distance part of the property of the Crown, subject to the right of the public freely to navigate them; but it is not necessary for the purposes of this case to affirm this proposition to its full extent. It is sufficient to shew that the English criminal law extends over the seas in question.

Lord Hale, in his Pleas of the Crown, expressly treats the sea adjoining the coast, though it may be high sea, as within the

(1) Co. Lit. 206a, b; Hale de Jure Maris, pt. i. c. 4; Com. Dig. Prerog. b. 1.

(2) Hale, ubi supra; Gammel v. Commissioners of Woods &c., 3 Macq. 419; Gann v. Free Fishers of Whitstable, 11 H. L. C. 192; Foreman v. Same, Law Rep. 4 H. L. 266; see also 21 & 22 Vict. c. 109, s. 2, as to mines below low-water mark.

King's realm of England. (1) He further says, "Special commissions to hear and determine offences upon the coast, Secundum legem et consuetudinem regni Angli¾, did often issue." (2)

In this passage he uses the word "coast;" but it is plain from the context that he does not mean by "coast" the land next the sea, but the sea next the land.

It further appears from the same writer that the Court of Admiralty had jurisdiction to deal with certain crimes committed on the high seas out of the bodies of counties; and since 38 Edw. III., and until Lord Hale's time, no other court in England took cognizance of crimes there committed. The jurisdiction thus exercised does not appear to have been limited as regards distance from the shore.

By the statute 28 Hen. 8, c. 15, which was passed in order to remedy certain defects in the practice and procedure of the Court of Admiralty in criminal cases, it was enacted (s. 1):-

"That all treasons, felonies, robberies, murders, and confederacies hereafter to be committed in or upon the sea, or in any other haven, river, creek, or place where the Admiralty or admirals have or pretend to have power, authority, or jurisdiction, shall be inquired, tried, heard, determined, and judged in such shires and places in the realm as shall be limited in the king's commission or commissions, to be directed for the same in like form and condition as if any such offence or offences had been committed or done in or upon the land:" and (s. 2) "that such persons to whom such commission or commissions shall be directed, or four of them at the least, shall have full power and authority to inquire if such offences and every of them by the oaths of twelve good and lawful inhabitants in the shire, limited in their commission in such manner and form as if such offences had been committed upon the land within the same shire; and that every indictment found and presented before such commissioners of any treasons, felonies, robberies, murders, manslaughters, or such other offences, committed or done in or upon the seas, or in or upon any haven, river, or creek, shall be good and effectual in the law."

I do not understand this statute as extending the jurisdiction of the commissioners appointed under this statute, either over a larger district or over a larger or different class of persons than there was jurisdiction over before. But the statute shews that, both as regards distance from the shore and as regards persons, the jurisdiction to punish crimes on the high seas was as wide as it could be; and the statute did extend the jurisdiction of the commissioners

(1) See vol. i. p. 154, and vol. ii. pp. 12-15, Wilson's ed.

(2) Vol. ii. p. 15.

over offences not triable before. The statute is, in fact, an express legislative enactment that the crimes there specified if committed on the seas are to be tried and punished according to English law, and the crime of manslaughter is one of those mentioned in this statute.

By 39 Geo. 3, c. 37, this enactment was in effect extended to all offences committed upon the high seas out of the body of any county. This statute again assumes that, as regards geographical limits, and persons within those limits, the jurisdiction of the commissioners appointed to try offences on the high seas was as wide as it could be; and the statute again extended that jurisdiction as regards the offences triable by commissioners.

The joint effect of these two statutes was, in my opinion, to make the criminal law of England applicable over the high seas so far as it was competent for Parliament so to make it. Provision was made for the appointment of commissioners to carry these enactments into operation; and in practice the Court of Admiralty exercised the jurisdiction thus created.

Similar general language is used in those more modern statutes which have transferred to the Central Criminal Court (1), and to the judges of assize (2), the jurisdiction of the above-mentioned commissioners and of the Admiralty over crimes committed on the high seas.

Those statutes however have not extended the criminal law to persons or places not previously subject to it. The statutes speak of offences on the high seas and other places within the jurisdiction of the Admiralty. Unless, therefore, it can be shewn that prior to the passing of these last-mentioned statutes the prisoner could have been properly convicted, according to the law of England, by commissioners appointed under the older statutes, that is, by the Court of Admiralty, his conviction cannot be supported.

It is necessary, therefore, to fall back on the jurisdiction of the Court of Admiralty as recognised in and as declared and extended by 28 Hen. 8, c. 15, and 39 Geo. 3, c. 37. In other words, it is necessary to consider what limits there were to such jurisdiction as regards offences committed on the high seas.

(1) 4 & 5 Wm. 4, c. 36, s. 22.

(2) 7 & 8 Vict. c. 2; see also 24 & 25 Vict. c. 100, s. 68.

The jurisdiction is assumed throughout to have been as extensive as it could be. The question therefore is, how extensive could it be?

This brings us at once to the consideration of the limits of the legislative power of this country and of the jurisdiction of its Courts, and there being no other limit than that set by international law, those limits must be sought for amongst the recognised authorities on that branch of jurisprudence. Here, however, a fresh difficulty presents itself; for there are no treaties and there is no established practice bearing directly on the subject under consideration. But there are, in my opinion, certain general principles sufficiently well established to afford a basis for the decision of the case before us.

The controversy between Grotius in his Mare Liberum and Selden in his Mare Clausum has been observed upon by almost every writer on international law since their day; and the result has been that whilst the extravagant propositions contended for by each of these celebrated men have been long ago exploded, it appears to me to be now agreed by the most esteemed writers on international law that, subject to the right of all ships freely to navigate the high seas, every state has full power to enact and enforce what laws it thinks proper for the preservation of peace and the protection of its own interests, over those parts of the high seas which adjoin its own coasts and are within three miles thereof. But that beyond this limit, or, at all events, beyond the reach of artillery on its own coasts, no state has any power to legislate save over its own subjects and over persons on board ships carrying its flag.

This general principle is based on various grounds, and is made subject to various exceptions, as will be seen by reference to the authorities referred to below; but in the above general result and to this limited extent all modern writers appear to agree; and Mr. Bishop in his well-known work is, I think, right in his statement (made with express reference to criminal law), that "the sea adjoining the coast is within the territorial sovereignty which controls the adjacent shores." (1)

The contention of Mr. Benjamin, that the high seas adjoining the land are not to all legal intents and purposes the same as the

(1) Bishop, Crim. Law, § 104, 5th ed.

land, appears to me to be well founded; for those seas are subject to a freedom of passage which land is certainly not; and but for the statutes above referred to, or some other enactment or evidence shewing that offences on the high seas were punishable by English law, I should not hold that the criminal law applicable to the land had any application beyond it.

I am, however, unable to assent to Mr. Benjamin's further contention, viz., that the dominion of a state over the seas adjoining its shores exists only for certain definite purposes for which such dominion has been conceded to it by other nations; i.e., the protection of its coasts from the effects of hostilities between other nations which may be at war, the protection of its revenue and of its fisheries, and the preservation of order by its police. On the contrary, I think the weight of authority is entirely in favour of a general dominion for all purposes consistent with peaceful navigation.

In support of this proposition numerous authorities ancient and modern may be referred to. Amongst them, the most important are the following: The Leda (1), in which the United Kingdom was held to include three miles from its shore. The judgment of Vice-Chancellor Wood, in General Iron Screw Co. v. Schurmanns (2), which shews that the right of Parliament to legislate over an area of three miles from the shore is not open to doubt; and that in construing any Act of Parliament the question is, whether it was meant to operate over the whole of that territory within which there is the right to legislate; Wheaton's Elements of International Law, part ii. ch 4, ss. 6-10, pp. 233 et seq. et ed. 6, and part ii. ch. 2, ss. 2 and 13, pp. 113, 174; Kent's International Law, p. 115, Abdy's ed.; Kent's Commentaries, vol. i. p. 28, &c., which, I think, correctly states the result of the authorities on this point; Manning's Law of Nations, p. 119, Amos' edition. This writer restricts the dominion over the three miles to definite purposes, but he cites no authorities for such restriction, and other writers do not so restrict it; Phillimore's International Law, vol. i. ch. 4, s. 154, and ch. 8, s. 196, &c.; Marten's PrŽcis du droit des Gens, book 4, ch. iv. ss. 152-4 (vol. i. p. 399, &c., and see especially p. 402, Verge's ed. of 1864, and book 2, ch. i. ss. 40, 41;

(1) Swa. Adm. 40.

(2) 1 J. & H. 193, et seq.

vol. i. p. 144, same edition); Ortolan, Diplomatie de la Mer, vol. i. book 2, ch. viii. see particularly p. 157, ed. 4; Hautefeuille, Des droits et des devoirs des nations neutres, vol. i. tit. ch. 3 (pp. 82, &c., ed. 2), and tit. 6, s. 1 (p. 287, &c., see particularly p. 297); Heffter Le droit international pub. de l'Europe (Bergson's French translation), book 1, s. 75, p. 149, &c., and s. 79, p. 161, &c.; Bluntschli, Droit international codifiŽ, 2nd French edition, ss. 302, 319, 322. Indeed, from the time of Bynkerschoek, downwards, the principle here referred to has been in process of establishment; and there being such a concurrence of opinion amongst writers on international law, and no treaty or practice, or indeed, opinion, expressed to the contrary, it appears to me that the rule, to the limited extent above mentioned, ought to be judicially treated as now established, the more so as such rule has been already judicially acted upon by the civil tribunals of this country in the cases to which I have already referred: see Lord Mansfield's observations in 3 Burr. 1471.

The right of every vessel to pass over the high seas adjoining the English coast has more than once been judicially recognised by the highest Court in the realm (see The Whitstable Fishery Cases referred to above; see also The Twee Gebroeders (1)) and cannot be denied, so long as there is no law expressly prohibiting it. No general words in any statute can properly be construed so as to interfere with or restrict such right unless it be abused.

The conviction of the prisoner in this case in no way diminishes the right of foreigners to sail peaceably along the English coast waters; that right is not questioned by the prosecution and is conceded to the fullest extent.

For these reasons I have arrived at the conclusion that, speaking generally and subject ta such exception, if any, as can be established, the general language of the statutes, 28 Hen. 8, c. 15, and 39 Geo. 3, c. 37, may properly be construed as having made punishable by English law all offences committed within the conventional limit of three miles from our shores.

Nevertheless, if these statutes had already been judicially construed in such a way, as to shew that they had no general application to the English coast waters as part of our maritime territory,

(1) 3 C. Rob. 336.

I should unhesitatingly adopt that construction; but, in truth, no interpretation involving this point has ever yet been put upon them.

We have now to consider for the first time what construction ought to be put upon them, and having regard to their objects and to the inconveniences which will follow if they are not construed as widely as is consistent with their language, and with established principles, I am clearly of opinion that they ought to be construed as widely as they properly can; and in expressing this opinion, I do not overlook the fact that Parliament, when making it penal to abandon a ship in the event of a collision, expressly confined this enactment to the masters of British ships (36 & 37 Vict. c. 85, ss. 16 and 17).

Having thus arrived at the conclusion that, by virtue of the statutes 28 Hen. 8, c. 15, and 39 Geo. 3, c. 37, the criminal law of England was extended over the waters adjoining the coast to as great a distance as the rules of international law allow, and that this distance is now at least three miles from the coast, I proceed to inquire to what persons within these geographical limits the law is applicable. I answer, to all persons who cannot be shewn to be excepted from its operation. Criminal laws exist for the protection of all persons within the limits to which they apply; and this protection cannot be secured unless all persons, whether native or foreign, within such limits are punishable if they infringe such law: see Heffter, s. 36; People v. McLeod. (1)

Foreigners on board British ships are subject to the criminal law of this country, in respect of offences committed on board those ships: see Reg. v. Sattler (2), where the ship was on the high sea, and not within the territorial waters of any other state; Reg. v. Anderson (3), where the ship was in the territorial waters of France; see also Reg. v. Lesley. (4) So foreigners in foreign ships are punishable by English law for crimes committed on board in English rivers: Cunningham's Case. (5)

It is said, indeed, that in the absence of clear evidence of intention to the contrary, a general statute is not to be construed to

(1) 1 Hill, N. Y. at p. 406.

(2) Dears. & B. Cr. C. 525.

(3) Law Rep. 1 Cr. C. 161.

(4) Bell, Cr. C. 220, 234.

(5) Bell, Cr. C. 72.

extend to foreigners; and this is quite true of foreigners out of the limits to which the statute is geographically applicable, but it is not true of foreigners within those limits. In fact, this rule of construction is only another mode of expressing the more general rule, that statutes are to be so construed as to apply only to those persons and places which are within the dominion of the legislative power: see Maxwell on Statutes, p. 123.

Reference was made in the course of the argument to the case of The Saxonia (1), in support of the proposition that, in the absence of express words, a statute ought not to be construed so as to affect a foreign ship even in English waters. But when the case is looked at, it will be seen that the decision only was that the statutory enactments there in question (i.e. 17 & 18 Vict. c. 104, ss. 291, 295-298) were confined to British ships; and it is, I think, quite consistent with that case to hold that criminal laws, applicable generally over a given sea area, are applicable to everything within that area, unless there be some special exemption in its favour.

It is, however, argued that a foreign ship in its passage over the high seas is subject, and subject only, to the law of the country to which the ship belongs; that such a ship is part of the territory of that country, and that the laws of no other country apply to it; and it is further contended that this proposition is true, not only with respect to the conduct of those on board, inter se, but also with respect to their conduct towards other persons.

This contention renders it necessary to investigate the doctrine that a merchant ship is part of the territory of the country whose flag she bears.

It is obvious that she is not so in point of fact; and it is easy to shew that the doctrine holds good to a very limited extent indeed. First, It is admitted that a foreign merchant ship, which enters the ports, harbours, or rivers of England, becomes subject to English law, her so-called territoriality does not in that case exclude the operation of English law: Cunningham's Case. (2)

Secondly, It is conceded that, even in time of peace, the territoriality of a foreign merchant ship, within three miles of the coast of any state, does not exempt that ship or its crew from the

(1) 15 Moo. P. C. 262.

(2) Bell, Cr. C. 72.

operation of those laws of that state which relate to its revenue or fisheries.

Thirdly, In time of war the so-called territoriality of a ship of one of the belligerents does not subject it to invasion or capture within three miles of a neutral coast.

Fourthly, In time of war the so-called territoriality of a neutral merchant ship does not exempt it from invasion in search of contraband of war.

Fifthly, In time of war this country has invariably denied that the territoriality of a neutral merchant ship protected enemy's goods on board; and although England has agreed with some nations that in future free ships shall make free goods (unless contraband of war), England resolutely maintains the old doctrine against all other nations.

In all these cases the territoriality of the ship becomes an unmeaning phrase, and care must be taken not to be misled by it, and not to allow the general assertion that a ship is part of the territory whose flags she bears to pass unchallenged, and to be made the basis of a legal argument.

When, indeed, a ship is out at sea in waters which are not the territorial waters of any state, it is right that those on board her should be subject to the laws of the country whose flags she bears; for otherwise they would be subject to no law at all. To this extent a ship may be said to be part of the territory of the country of her flag: see Man. Law of Nations, pp. 117-255; but so to speak of her is to employ a metaphor, and this must never be lost sight of.

Again, for some purposes at all events, a ship may remain subject to the laws of her own state even when in the territorial waters of another state. In Reg. v. Anderson (1) a foreigner was tried and convicted in England for a manslaughter committed by him when on board a British ship in the Garonne. It was held, that though he might have been properly tried and convicted in France, the jurisdiction of the English Courts over him was not thereby ousted. The so-called territoriality of a ship may give jurisdiction to the state whose flag she bears, without exempting her from the jurisdiction of the state whose waters she enters.

(1) Law Rep. 1 Cr. C. 161.

It is, however, said that the criminal law of a state does not apply to those on board a foreign ship merely passing through its waters, and we were referred to an American decision of United States v. Kessler (1), and to a note in Russell on Crimes, vol. i. p. 155, in support of this proposition. Reference was also made to the French law, according to which such crimes are not punishable unless they affect persons other than the crew and passengers of the vessel: see Wheaton's Elem. 6th ed. p. 154, &c., and Reg. v. Anderson. (2) The case of United States v. Kessler (1) was a case of robbery on board a foreign ship, and persons not on board were not affected; moreover, the robbery was in fact committed when the ship was on the ocean and not when she was within three miles of the coast. The note in Russ. vol. i. p. 155, is a note to Cunningham's Case (3), which turned on a technical point of venue. The ship in that case was an American ship in the sea (i.e., in the British Channel), but in the body of the county of Glamorgan; a crime was committed on board; the venue was laid in Glamorganshire, and the prisoner was convicted. He was not indicted for an offence committed on the high seas under 7 & 8 Vict. c. 2. The note referred to is as follows:-

"As the offence is this case was committed on a foreign vessel it could not have been tried as an Admiralty offence."

I can, however, find no decision in this country or elsewhere to the effect that a crime committed on board a foreign ship, whilst navigating the coast waters of another state, is not punishable by the laws of that state. But inasmuch as all persons on board are under the protection of the laws of the country to which the ship belongs, it may be that crimes on board such ships, and affecting no one except their own passengers and crew, may form an exception to the general rule that a crime is punishable by the law of the country or geographical area in which it is committed.

But even assuming this exception to be established, there is neither principle nor authority for extending the exception to cases where persons on board foreign ships commit offences against other people.

The reason for the exception (if any exception there be) does not

(1) Baldwin's Rep. p. 15.

(2) Law Rep. 1 Cr. C. 161.

(3) Bell, Cr. C. 72.

extend to such cases; and so to extend it would, in my judgment, be most unreasonable and most injurious to the interests of all civilized states. The French law draws the distinction clearly between the two classes of cases; and whilst the French criminal Courts refuse to exercise any jurisdiction where no one is injured except persons subject to the law of the flag of the foreign ship, they naturally claim jurisdiction and exercise it where injuries are sustained by other persons.

Indeed the concession made on all hands that a ship in territorial waters is subject to the regulations of police and safety of the state whose shores are washed by them, appears to me to be a concession of the whole principle for which it is necessary for the Crown to contend. The object of police laws and the object of criminal laws are precisely the same, viz. the preservation of peace and order, and the punishment more or less severe of those who disturb it. The boundaries between police law and criminal law are not set by any general principle, but depend simply on what is considered expedient; and it is entirely discretionary with each legislative power to say what offences committed within the limits of its dominion shall be dealt with summarily by the police, and what shall be tried more deliberately and be punished more severely.

If any state chooses to extend its own criminal laws, in addition to its police laws, to offences committed on the high seas within its dominion, there is no principle of international law which forbids the application of such criminal laws to foreigners, who, whilst passing through the territorial waters of that state in foreign ships, injure persons over whom that state has thrown its protection.

It appears to me that the statute law of this country, construed with reference to established doctrines of international law, has placed under the protection of our criminal law all persons on the high seas within three miles of the English shores; and conceding that it is doubtful whether those laws apply to cases where offences are committed on foreign ships traversing those seas, and no one, save their passengers or crew, are concerned in or suffer from what is done on board, I am unable to come to the conclusion that other persons in those waters are deprived of the protection thrown

around them, when they are injured by the passengers or crew of a foreign passing ship.

A contrary doctrine would be most injurious and startling in its consequences; for, if such doctrine were to prevail, it would follow that, although crimes amounting by the law of nations to piracy might be punished in England if committed by a foreigner on the high seas, this country would be powerless to punish a foreigner for any less crime than piracy by the law of nations, although committed within a few yards of low-water mark, provided only he were on board a passing foreign ship when he committed the crime. He might, according to this doctrine, wilfully run down a boat, recklessly injure others to any extent, and yet not be punishable by our criminal law as distinguished from our police law. Indeed, I do not see why he should not be free from punishment by English criminal law, even if when on board his ship he shot and murdered some one off it; for such a crime is not necessarily piracy by the law of nations. That he might be apprehended and sent to his own country for trial is scarcely an equivalent for trial on the spot, where the witnesses are, and means of proof are readily accessible. It is no answer to this observation to say that the cases I have put would be punishable by the law of England as piracy; for the argument to which I am addressing myself is that the criminal law of England, as distinguished from the law of nations relating to piracy, has no application to foreigners in the situation supposed. Nor do I feel the force of the observation that the crime of which the prisoner in this case has been convicted is treated as manslaughter or homicide by the law of England alone. The question whether he is amenable to the criminal law of England in na way depends upon how he is to be treated by that law if amenable to it.

On the other hand, it is said that the consequences of upholding this conviction will be inconvenient and absurd. It is said to be absurd that a child born in a foreign ship passing through English waters should be treated as a native-born English subject. I am, however, by no means prepared to admit this to be a consequence of the limited principles on which I have sought to shew that this conviction is right; and even if such consequence were to follow, it would rather be the law of allegiance than the criminal law which

would deserve to be called absurd. Again, it is said to be absurd to expect foreigners to know the laws of all countries along whose shores they sail; and that it would be cruel to punish them for infringing those laws when ignorant of them. But this observation, though forcible when urged against the doctrine that whatever takes place on board a coasting ship is cognizable by the shore authorities, loses all its force when urged against the rule that those on board such ship are to conduct themselves so as not to injure other people, and that if they fail in this respect they are punishable by the law of the land near which they are sailing.

Lastly, it is urged that the jurisdiction contended for by the Crown has never been exercised, and this apparently is the fact. On the other hand, no case appears ever to have arisen for its exercise.

So far as precedent is concerned, the case before us is quite new. It must, therefore, be decided on principle; and the absence of any precedent either way is by no means conclusive against the existence of the jurisdiction. To say that the Admiralty had no criminal jurisdiction over persons on board foreign ships on the high seas, even though close to our shore, is simply to assert the proposition which has to be considered. And I have endeavoured to shew that its jurisdiction was general over the English coast waters; and that there is no principle or authority for holding it to have been restricted to the extent contended for on behalf of the prisoner. The question does not, I think, turn on any of those technical distinctions taken in the older cases between the limits of the jurisdiction of the several Courts of this country; but upon the broad consideration of English and international law; and for the reasons I have given I am of opinion that this conviction ought to be affirmed.

In the view thus taken it becomes unnecessary to consider whether the conviction can be supported on the ground that the offence of the prisoner was committed on board the Strathclyde, and not on board the Franconia. The case of the United States v. Davis (1) is an authority in support of the conviction on this ground also, but I am not satisfied on this point; I prefer to rest my judgment upon the broader ground that the waters around the

(1) 2 Sumner, 482.

coasts of England are under the protection of English law, and that all persons, whether English or foreign, who recklessly navigate those waters and thereby cause others to lose their lives, are punishable by the criminal law of this country.

DENMAN, J. The question in this case of manslaughter is whether the Central Criminal Court, by virtue of the Act of 4 & 5 Wm. 4, c. 36, s. 22, had jurisdiction to try the prisoner, Ferdinand Keyn, a foreigner.

The prisoner was tried upon an indictment in which the venue was laid in the Central Criminal Court. It contained two counts, one of which alleged a felonious killing and slaying "upon the high seas." The other omitted those words.

It was suggested upon the argument that this case was consistent with the possibility of the deceased having jumped overboard from alarm, and so perished. All I will say as to this suggestion is, that I do not feel at liberty to adopt it in any sense inconsistent with a death by manslaughter. If there were any real doubt upon the question whether the deceased's death was immediately caused by the wrongful act of the prisoner, under such circumstances as to constitute the offence of manslaughter, subject only to the question of jurisdiction, I should have desired that the case should be more fully stated; but I think it clear that the only point intended to be decided by us is whether, assuming the verdict of the jury to be right, and manslaughter to have been committed somewhere, this is a case where the offence of manslaughter was committed by such a person, under such circumstances, and in such a place, as to give the Central Criminal Court jurisdiction. I can only read the case as stating that the prisoner, by his negligence in continuing to navigate a vessel which was "under his immediate direction" in a wrong and dangerous course, caused her to strike and sink the Strathclyde, and so committed manslaughter by drowning, subject only to the question whether such manslaughter was "an offence committed" within the jurisdiction of the Admiralty now exercised by the Central Criminal Court.

The question then is, whether, where the foreign captain of a foreign ship so negligently manages his ship that she cuts into a

British ship with her own stem, makes a hole in her, and sinks her, and a passenger is thereby drowned in the sea from the foundering of the ship, all happening on the high seas within three miles of the shore of England, the foreign captain (being afterwards in England) is liable to be tried for manslaughter in the Central Criminal Court, and to be convicted upon either count of an indictment such as the present. I am of opinion that he is so liable.

The first ground upon which I consider that this liability exists is that upon which it was last placed by the Solicitor General in his learned and exhaustive argument.

The Central Criminal Court has, by s. 22 of 4 & 5 Wm. 4, c. 36, jurisdiction to inquire of, hear, and determine any offence or offences committed or alleged to have been committed on the high seas or other places within the jurisdiction of the Admiralty of England.

A doubt has been expressed in the course of this case whether the words "within the jurisdiction of the Admiralty of England" apply to the words "offences committed," or to the words "other places." I am strongly inclined to think the latter, but it does not appear to me important for the purposes of this case to decide this, or to hold that they may not apply to both; for in the present case the offence charged, viz. manslaughter, is one which is clearly within the jurisdiction of the Admiralty, so far as its nature is concerned: see Reg. v. Anderson (1), and it was clearly committed upon the high seas, and therefore within the area of Admiralty jurisdiction, in the sense that if it had been committed by one British subject in one British ship running down another British ship and so drowning another British subject, the Admiralty, and not the common-law tribunal, would have had jurisdiction.

If this be so, the first question seems to be reduced to this, Does the 4 & 5 Wm. 4, c. 36, s. 22, apply to a case of a manslaughter by running down a British ship on the high seas and drowning its crew and passengers (such running down and drowning being all completed on the high seas), whether the running down and drowning be caused by a foreign ship or not, and whether a foreigner or an Englishman be the person charged?

(1) Law Rep. 1 Cr. C. 161.

This question appears to me to turn mainly upon the question, where is the "offence committed?" and in deciding this question, I think we are bound to decide according to the principles of English law.

One principle of English law about which there has been no dispute in this case is that a British ship, as regards criminal offences committed on board of her, is to be treated as British territory, at all events so long as she is upon the high seas, and is as much subject to and under the protection of our law as any other part of the Queen's dominions, though the tribunal, administering the law relating to offences committed on a British ship while on the high seas, is a different one from that which tries offences committed within the body of a county.

If the offence of manslaughter is committed by a foreigner on board an English ship on the high seas, such foreigner is liable to be tried and convicted in the Central Criminal Court exercising the jurisdiction of the Court of Admiralty. This is clearly established by numerous authorities, of which Reg. v. Anderson (1), cited above, is the most recent.

If, then, in the present case the offence of which the prisoner was convicted was an offence committed on board a British ship on the high seas, I apprehend the jurisdiction to try was indisputable, subject only to the question whether a foreigner is exempt by reason of being on board a foreign ship himself, while committing the offence on board the British ship.

It was argued that the offence was not committed on board a British ship, because the offence of manslaughter is of a complex character, consisting of an act of negligence, and of death the result of that negligence; and that, inasmuch as in the present case the act of negligence was completed on board a German ship and there ended, the offence, at all events as to one material ingredient of it, was there committed, and so there was no jurisdiction to try a foreigner as for an offence committed on board a British ship and so on British territory. In support of this view the case of Lacy, cited in Bingham's Case (2), was much relied on. In my opinion that case only proves that where the mortal stroke is given on the high seas, and the death occurs within the

(1) Law Rep. 1 Cr. C. 161.

(2) 2 Co. Rep. 93a.

body of a county, neither the Admiralty nor the judges who try offences committed within the body of the county had at common law jurisdiction to try, and therefore the jurisdiction given to the Central Criminal Court would not apply to such a case. Mr. Benjamin, in his admirable argument, admitted that such was the whole effect of that case.

But that decision or dictum (for it seems to me to be no more (1),) appears to be wholly inapplicable to the present case, for in the present case the whole offence, of whatever elements it may consist, was clearly committed on the high seas. The negligence, the mortal stroke, and the resulting death all took place out of the body of any county, and on the high seas. But it was argued on behalf of the prisoner that this is not sufficient, for that in the present case the negligence which caused the death, though on the high seas, was wholly and completely confined to acts done by a foreigner, being upon a foreign ship; that such negligence is one of the main ingredients of the manslaughter of which he has been found guilty, and that, therefore, upon the principle of Lacy's Case (2), the Admiralty had no jurisdiction to try the prisoner.

I think this objection is completely answered by the case which was cited by the Solicitor General, Combes' Case (3), stated in East's P. C. p. 367, as follows:-

"Where one standing on the shore shot another standing in the sea who afterwards died on hoard a ship, all the judges held that the trial must be in the Admiralty Court, and not at common law."

The report in Leach shews that the case was one of murder. The deceased was a sailor on board a boat which had run aground on a sand-bank about 100 yards from the shore; and the prisoner, a smuggler, being on the shore firing at other sailors who were endeavouring to push off the boat, struck and killed the deceased, who died in the boat, or possibly on board the ship to which he belonged, at sea. The case was argued twice by counsel, before all the judges but one, upon the question whether the prisoner had been properly tried by the Admiralty tribunal, or whether he ought not to have been tried at common law. They were all of

(1) See 1 Leon. 270.

(2) 2 Co. Rep. 93a.

(3) 1 Lea. Cr. C. 388.

opinion that the prisoner was tried by a competent tribunal, and the prisoner was executed pursuant to the sentence. This case appears to me to be a strong authority for the Crown to this extent, viz., that if the present case had been one of murder and not of manslaughter, if the prisoner, instead of negligently causing his ship to strike the Strathclyde, had purposely and of malice aforethought done the same act, the mortal stroke in contemplation of law would have been given where it actually took effect, which having been on board a British ship on the high seas and the death also on the high seas, there could have been no question whatever as to the jurisdiction of the Central Criminal Court to try the offence as one committed on the high seas, and within the jurisdiction of the Admiralty transferred to that Court. Then does the circumstance that the offence here alleged was manslaughter and not murder make any difference as regards the question of jurisdiction? It is said that it does. The decision in Combes' Case (1) was alleged to be supportable on the ground that in the case of murder the intention is presumed to accompany the act, and so the shot which takes effect on the high seas must be presumed to be accompanied thither by the intention with which it is fired, and both there together to operate. I agree that this is the principle upon which Combes' Case (1) is founded and I think that such a presumption is one of good sense and sound law. But I fail to see any true principle upon which a distinction can be drawn between a case of murder and a case of manslaughter, so far as the jurisdiction to try is concerned, on the ground that in the one case there is an intention to kill accompanying the stroke and operating at the place where it takes effect, and that in the other case there is no such intention. In my opinion, the negligence operates just as much as the intention at the spot where the violence is done, and though death is an ingredient of either offence equally, and, therefore, if death had not occurred within the Admiralty jurisdiction, Lacy's Case (2), but for a subsequent statute, would have applied, I can find no case nor authority of text-writers on English criminal law which furnishes any ground for saying that where the stroke or collision which causes the death and the death itself both occur within a certain jurisdiction,

(1) 1 Lea. Cr. C. 388.

(2) 1 Leon. 270.

and the case is one either of manslaughter or murder, the mere fact that in the one case there is intention to kill, and in the other case only recklessness causing a killing by precisely the same instrument, makes any difference as to the liability of the prisoner to be tried for "an offence committed within the jurisdiction."

My Brother Grove during the argument pointed out one consequence of such a distinction, which I must confess appears to me to be almost conclusive against it. Suppose murder in this case had been charged, and clear jurisdiction admitted on all hands to try for murder if malice prepense were proved, and the jury thinking malice prepense not proved, but negligence established, had found the prisoner guilty of manslaughter, would the Court be bound to set aside the conviction on the ground of negligence only, and not malice, having been proved, though, if intention to kill had been established, it would have held the jurisdiction established? Again, can it be maintained that if a foreigner passing by in his boat fired deliberately at a person on a British ship and killed him he would be triable, but that if he recklessly fired, and killed the same person he would not be triable? It seems to me that this distinction would be contrary to English law, which alone we are to administer, and that it could not be so held without practically overruling Combes' Case (1), by which we ought to abide.

Upon a question of venue, I can find no trace of any authority for saying that there is any such distinction. I must confess that it appears to me impossible to read the case of United States v. Davis, in 2 Sumner, p. 482, without coming to the conclusion that Story, J., had never heard or thought of the distinction in question, which of itself appears to me to be a very strong argument against its existence. That was a case of manslaughter, and Story, J., says:

"I say the offence was committed on board of the schooner; for, although the gun was fired from the ship Rose, the shot took effect, and death happened on board of the schooner, and the act was, in contemplation of law, done where the shot took effect."

The same view of the law seems to have been entertained by the law officers of the Crown in the year 1725, when our Attorney

(1) 1 Lea. Cr. C. 388.

and Solicitor General, Sir Phillip Yorke and Sir Clement Wearg, advised that a manslaughter committed by firing a gun from a fort in Barbadoes, and unlawfully, though not intentionally, killing a person on board a ship two miles off at sea, was not triable in any court of common law, but either in the Admiralty Court at Barbadoes, or by a special commission under 11 & 12 Wm. 3, c. 7 (See Forsyth's Cases and Opinions on Constitutional Law, p. 219).

I therefore feel bound to look at this case exactly as though it were one of murder caused by intentionally running down the Strathclyde, so far as the question of jurisdiction is concerned. In such case, would not the charge have been one of an offence committed on British territory, i.e., a British ship on the high seas, by a foreigner, having in contemplation of law entered the British ship, and there committed the offence afterwards completed by the death of the deceased, within the jurisdiction of the Admiralty? I think it would.

The case of Combes, already referred to, was a case of the trigger pulled ashore, the man killed in a boat at sea. The bullet sent from the shore having done the mischief at sea, it was held that the prisoner had "committed the offence at sea." That was a case of murder; but the case of United States v. Davis (1), which was a case of manslaughter, was decided upon the same principle; and it appears to me that the principle is sound and reasonable. Applying that principle to the present case, I can see no reason for drawing any distinction between the case of propelling a bullet from a gun and that of striking with the further end of a spear, or directing the prow of a ship so as to strike either a person or a vessel containing a number of living beings.

Can a ship, directed by its captain against the hull of another ship, and there inflicting an injury which sends it to the bottom in a few minutes, and drowns its crew and passengers, be more appropriately said to be inflicting the mortal stroke at any place than where she makes the hole, through which the water rushes, which sends the ship to the bottom and drowns those on board? And if, as in this case, she penetrates the skin of the other vessel some feet, must it not be held that the person under whose immediate direction she is does the mischief which is most entitled to be

(1) 2 Sumner, 482.

called the "mortal stroke" on board the ship which is sunk? I think it must.

But it is argued that the law which gives our Courts jurisdiction to try offences upon the high seas cannot be held to apply to this case, because the prisoner was a foreigner on his own ship, and therefore not amenable to our criminal law.

I am of opinion, however, that the law which makes foreigners liable for the violation of our criminal law for offences committed by them when bodily on our soil, whether there by their own desire or not, is not so restricted as to leave them unpunishable because they may have been on a foreign ship at the time of the commission of the offence. By way of illustration: suppose that a foreigner in a foreign ship, lying on the sea in deep water, were to commit a burglary by thrusting a hooked stick through the window of some building adjoining the sea, and thus, and thus only, break in and steal goods and chattels. I think that in such a case, if he were to be afterwards on shore, our Courts would have jurisdiction to try him, and that if they tried him, they must hold that, though he was a foreigner in a foreign ship on the high seas, he was not the less a foreigner breaking, entering, and stealing in the county of S., and therefore liable to be tried and punished there.

It is argued that there would be hardship in trying a foreigner, who knows not our laws, for an act which might be regarded quite differently, and triable by totally different rules, and punishable by a different punishment, in his own country.

But I do not think that this argument ought to prevail. It might be thought hard to try a foreigner for manslaughter committed by gross negligence in driving furiously and recklessly along the road to the nearest town immediately after being shipwrecked on our coast, or immediately after having fallen from a balloon, but I conceive it would be no legal answer to such a charge to plead, however truly, that the prisoner was a foreigner, and that in his own country manslaughter was only a civil offence. I can indeed easily conceive cases in which a jury might acquit a foreigner, though they would have convicted an Englishman, doing the same acts, of manslaughter, as, for instance, if it were established that the death had happened through a bon‰ fide ignorance of our rule of the road; but any defence analogous to this must

be taken to have been disposed of, so far as it would have been applicable to this case by the verdict of the jury, and in the absence of any such defence, I apprehend that the case of a person, who does a criminal act directly causing injury or death to persons on board a British vessel on the high seas, must be dealt with precisely in the same way (though by a different tribunal) as that of a person committing the same offence in England; and that there is no more reason for reading oar criminal statutes as excluding foreigners in the one case than in the other.

The conclusion that the prisoner did commit the offence of manslaughter on a British ship is, I think, inevitable from the considerations and from the authorities above applied to the case. He being in command of his ship, which is found to have been under his immediate direction, so directed her as to cause her bow to penetrate the Strathclyde and make a large hole in her through which the water rushed in. I am of opinion that the making of that hole was his negligent act done within British jurisdiction, just as much as if he had personally boarded the vessel and staved her in with a hammer, and that by doing that act, followed as it was by the immediate sinking of the vessel and drowning of the deceased, he was liable to be tried for a manslaughter committed on the high seas within the jurisdiction of the Central Criminal Court.

I have felt bound to write fully upon this point, though it occupied a comparatively small part of the argument, because, in my opinion, it is one of vast importance to the security of British seamen and of persons of all nations sailing in British ships, and therefore entitled to the protection of our laws, throughout the world. I can see no ground for curtailing the generality of our criminal law in such a case as this, or for applying different principles from those which would be applicable to a manslaughter on land. I cannot see that it would in any way interfere with the free navigation of the high seas, for I see no inconsistency between perfect freedom of navigation and a power on the part of each nation to punish those who kill its own subjects, or those of other countries enjoying its hospitality on board its ships, by running them down, whether through design or negligence. On the contrary, I think that the real freedom as well as the safety of navigation

would be impaired if we were to place such a limit upon the jurisdiction of our criminal Courts.

With regard to the other point in the case which was so ably and elaborately argued by counsel, I am of opinion that the jurisdiction is also made out, on the ground that a foreigner committing manslaughter in the course of navigation of a foreign ship within three miles of the coast is subject to our jurisdiction, but I do not think it necessary to write separately upon this point, as I entirely agree with the judgment, which will be read by Sir Baliol Brett.

One argument which was used for the prisoner was that the absence of any proof of the exercise of such a jurisdiction was strongly against it. I admit that there is some force in the observation, but I do not think it goes so far as was contended for. Cases of criminal negligence in the management of vessels on the high seas are happily very rare; cases of death by such negligence still rarer; cases in which either public opinion or the feelings of relatives would be such as to lead to a prosecution rarest of all. There are, to my mind, sufficient reasons to account for the absence of any user upon the subject. The comparatively modern invention of steam navigation is of itself almost enough to account for the absence of any authority in ancient times, inasmuch as it is far more difficult to establish a clear case of criminal negligence against the captain of a sailing ship than against one directing a steamship on its course. But I can see no reason whatever for holding that a foreigner, who drives his own ship into a British ship and kills its crew by negligence, is less responsible to British law than a foreigner would be, who brought his ship within range of the Isle of Wight and shot or lanced to death upon a pier one of its inhabitants, and who afterwards landed upon the island and was brought to trial at Winchester assizes; in which case, for the reasons already given, he would, I think, be punishable by the criminal law of this country when found at the bar of the proper tribunal.

For these reasons I think that the conviction was right.

GROVE, J. In this case, the defendant, master of and on board a foreign ship, the Franconia, ran into a British ship, the Strathclyde, and by such act British subjects on board the last-named

ship were drowned off Dover, within three miles of the land. The defendant was indicted for the manslaughter of one of the persons so drowned, it being alleged that he was guilty of culpable or criminal negligence, and he was convicted at the Central Criminal Court.

For the purpose of this case the Court must assume the culpable negligence by the defendant, and that it caused the death; the question reserved is, had the Court jurisdiction to try the case by virtue of its Admiralty jurisdiction transferred to it by statute 4 & 5 Wm. 4, c. 36, s. 22, the defendant being a foreigner, commanding a foreign ship, and the offence not being committed on British soil or within a British port or river?

It was contended by the counsel for the Crown. 1st. That the belt of sea extending to the distance of three miles from the shore was British territory, and that an offence committed within it was within the criminal law of this country. 2ndly. That a person sailing or swimming within this belt of water in the Queen's peace is entitled to the protection of her law from aggressive or reckless acts causing personal injury, whether done by foreigners or by British subjects; this is, in fact, a limitation of the first point. 3rdly. That the offence was committed on board a British ship, such ship being struck and submerged by the blow, and the death, and immediate consequence of it, and the impinging of the foreign vessel being in the nature of a trespass on a British ship. These propositions were severally denied by the counsel for the defendant; if either of them is well founded the conviction is right, if no one of them is sustainable it is wrong.

I am of opinion that the conviction is right, and that our judgment should be for the Crown.

The proposition that a belt or zone of three miles of sea surrounding or washing the shores of a nation, - what is termed territorial water, - is the property of that nation, as a river flowing through its land would be, or, if not property, is subject to its jurisdiction and law, is not in its terms of ancient date; but this defined limit, so far at least as a maritime country like England is concerned, is rather a restriction than an enlargement of its earlier claims, which were at one time sought to be extended to a general dominion on the sea, and subsequently over the channels between

it and other countries, or, as they were termed, the narrow seas. The origin of the three-mile zone appears undoubted. It was an assumed limit to the range of cannon, an assumed distance at which a nation was supposed able to exercise dominion from the shore.

I forbear from reiterating the terms used by the numerous publicists quoted by the learned counsel in the arguments on this case. The principal authorities may be conveniently arranged as follows:-

1st. Those who affirm the right in what are generally termed territorial waters to extend at least to the distance at which it can be commanded from the shore or as far as arms can protect it.

2ndly. Those who, assigning the same origin to the right, recognised it as being fixed at a marine league or three geographical miles from the shore.

3rdly. Those who affirm the right to be absolute and the same as over an inland lake, or, allowing for the difference of the subject-matter, as over the land itself.

4thly. Those who regard the right as qualified: And the main if not only qualification that seems to me fairly deducible from the authorities is, that there is a right of transit or passage, and as incident thereto possibly a right of anchorage when safety or convenience of navigation requires it, in the territorial waters for foreign ships.

Puffendorff, Bynkershoek, Casaregis, Mozer, Azuni, Kluber, Wheaton, Hautefeuille, and Kaltenborn, though not all placing the limit of territorial jurisdiction at the same distance from the shore, none of them fix it at a smaller distance than a cannon-shot, or as far off as arms can command it; they also give no qualification to the jurisdiction, but seem to regard it as if, having regard to the difference of land and water, it were an absolute territorial possession. Chancellor Kent seems also to recognise an exclusive dominion. Hautefeuille speaks of the power of a nation to exclude others from the parts of the sea which wash its territory, and to punish them for infraction of its laws, and this as if it were dealing with its land dominion. Wheaton, Calvo, Halleck, Massey, Bishop, and Manning give the limit as a marine league, or three miles. Heffter mentions this limit, but says it may be

extended. Ortolan, Calvo, and Masse put the right as one of jurisdiction and not of property, but do not limit it further than that the former writer says that the laws of police and surety are there obligatory, and Masse also writes of police jurisdiction. Bluntschli says the territorial waters are subject to the military and police authorities of the place. Faustin Helie speaks of crimes in these waters coming within the jurisdiction of the tribunals of the land to which they belong. Unless these words "military, police, and surety" be taken to impose a limit, no limit to the jurisdiction of a country over its territorial waters beyond a right of passage for foreign ships is mentioned, as far as I could gather from the numerous authorities cited, except by Mr. Manning, who confines it (though not by words expressly negativing other rights) to fisheries, customs, harbours and lighthouses, dues, and protection of territory during war. Grotius, Ortolan, Bluntschli, Schmaltz, and Masse consider there is a right of peaceable passage for the ships of other nations, and Vattel says that it is the duty of nations to permit this, but seems to think that, as a matter of absolute right, they may prohibit it.

Such are the conclusions of the principal publicists, most of whom are of very high authority on questions of international law.

The result of them is to shew that, as in the case of many other rights, a territorial jurisdiction over a neighbouring belt of sea had its origin in might, its limits being at first doubtful and contested, but ultimately by a concession or comity of nations it became fixed at what was for a long time the supposed range of a cannon shot, viz. three miles distance.

In addition to the authority of the publicists, this three-mile range, if not expressly recognised as an absolute boundary by international law, is yet fixed on, apparently without dispute, in Acts of Parliament, in treaties, and in judgments of courts of law in this country and America.

The Merchant Shipping Act, 17 & 18 Vict. c. 104, s. 527, provides for injury to property by giving power to detain a foreign ship when within three miles of the coast. The Customs Act, 3 & 4 Wm. 4, c. 53, legislates for foreign vessels within one league of

the coast. The 59 Geo. 3, c. 38, s. 2, sanctions fishing and drying fish by British subjects within three miles of the coast. The 33 & 34 Vict. c. 90, s. 52, a foreign enlistment Act, extends "to all the dominions of Her Majesty, including the adjacent territorial waters."

The Congress of the United States has authorized the district courts to take cognizance of all captures made within a marine league of the American shores.

In many treaties, e.g. those mentioned by the Lord Chief Justice, of 1786-1787 and 1794, the cannon-shot range is fixed on as a zone protected from hostilities when the country which this belt adjoins is neutral.

It is true that this may be explained as a mutual concession, though I should incline to regard the concession rather as a disclaimer of rights beyond this belt; at all events it shews that this limit has been fixed on or assumed as internationally separable from the parts of the high seas beyond it.

In many cases in the law courts cannon-shot range on this three-mile belt has been recognised. The charge of Sir Leoline Jenkins, in 1683, goes beyond this, and extends the dominion of the Crown to what were called the four seas. In the case of The Twee Gebroeders (1) it was held that a vessel lying within the three miles could not by her boats make a good capture beyond this distance. So in the case of The Brig Anne, a vessel, having anchored and taken in provisions within the three miles, was seized under an Act of Congress which laid an embargo on vessels within the limits and jurisdiction of the United States; Story, J., saying, "The Anne was certainly in a place within the jurisdiction of the United States." In Gammell v. The Lord Advocate (2) the right of the Crown to the bed of the sea within the three miles is recognised by Lord Wensleydale, and to some extent by Lord Cranworth. In the case of The Leda, the words "United Kingdom" were held by Dr. Lushington to include three miles from the shore. So in the case of Whitstable Fishers v. Gann (3), an anchorage case, Erle, C.J., says, "The soil of the sea shore to the extent of three miles from the beach is vested in the Crown," and

(1) 3 C. Rob. 162.

(2) 3 Macq. 419-465.

(3) 11 C. B. (N.S.) 337; 13 C. B. (N.S.) 353; 11 H. L. 192.

this is quoted with approval by Lord Chemsford in the same case on appeal in the House of Lords.

Chancellor Kent recognises Bruce's Case (1), but although the occurrence is treated as within territorial waters, yet, as it took place in Milford Haven, it may be said this was within a port. Some belt of sea must, as a necessary protection, be within the control of the country which it washes. There are parts of the coast where the cliffs are such that the tide at low water hardly, if at all, leaves their base uncovered, and if there were no jurisdiction over any part of the water in such places hostile gun-boats might hover within pistol-shot of the land.

The result of the authorities on international law, of the concessions of nations, and of decided cases is admitted by the learned counsel for the defendant to prove that there is a jurisdiction for certain purposes in tribunals of the country within the three miles. Is then this jurisdiction limited, and, if so, to what extent?

I do not find in any of the authorities cited an express limitation of jurisdiction, as by words to the effect that such and such rights exist and no other, or any express assertion that there is no criminal jurisdiction within the territorial waters. Manning goes the nearest to this, for he does say that for some limited purposes a special right of jurisdiction and even of dominion is conceded to a state, in respect of the part of the ocean immediately adjoining its own coast line. If this statement were borne out by the general current of authority, or even by a few writers of eminence, or by authoritative decision, it would have great weight; but I do not find that it is so supported.

The limitation for which, as I have said, there is no doubt considerable authority, is that of a right of passage, and this may, - and I will assume it for the purpose of my judgment in this case, - go so far as to exclude from English jurisdiction anything which may happen within the foreign ship, between members of its crew or even passengers who trust themselves for the time being to the government of the commander of the ship.

As we claim for this nation that a British ship is British territory wherever it be, I concede for the present that foreigners may rightly claim for their ships the same privilege, except when

(1) 2 Lea. Cr. C. 1093.

restricted by special legislation, e.g., customs laws, &c. But, assuming fully this right of passage through the territorial waters, it seems to me that the very exception involves a right within a right, a serviency qua the rights conceded, but dominion ultra those; it seems to me also that a right of passage cannot be other than a right to be properly exercised, with due regard to the safety of the subjects of the nation over whose territorial waters the right is used. If the lives or limbs of such subjects are jeopardized, it would be an idle dominion which cannot protect them against injury, or punish for it if committed.

If the dominion be absolute, such seems to me a necessary conclusion; and even if the words "police and surety" or "military and police authorities" be taken to impose a further limitation than that of a right of passage, still the limited rights could not be protected if reckless navigation were permitted to endanger those rightfully enjoying them, or if the persons guilty of injury to them were not punishable by the tribunals of the country having this police or military jurisdiction. Police without this protection would be impotent and useless. It may be said complaint may be made to the tribunals of the country to whom the offender is a subject, but resort to such remedies, in addition to the enormous difficulties of procuring evidence, want of power to compel attendance of witnesses, and expense, assumes that the offender returns to his own country, which he may not do, and gives in this respect no meaning to the jurisdiction over the limited area for police and surety; for this resort to the country of the accused could be had if the offence were committed anywhere on the high seas.

It is true that there is no case expressly in point either way with that now before the Court. If there had been a case of recognised authority, this case would probably not have been argued. This, though by no means a conclusive argument either way, is rather an argument in favour of the defendant than against him. It may, however, be remarked that collisions were not frequent until late years, when the great increase in the number of ships navigating the ocean has given rise to them. The loss of human life, except from murder or piracy, was not thought so much of in former times as at present, and unless there

were something directly calling in question the jurisdiction, the limit of territorial water would not be likely to be narrowly watched. Still, I am far from undervaluing the argument.

As I have come to the conclusion that there is jurisdiction in such a case as the present, there arises the question whether it is necessary that there should be special legislation to enable our tribunals to deal with a foreigner guilty of such offence.

If the matter were one of police regulation merely, such as that the vessel should pass between certain buoys, should exhibit certain lights, be liable to customs requirements, &c., I should be of opinion that special legislation would be requisite; but I cannot see that it is for murder, mayhem, or manslaughter, any more than it would be if the offence were committed within a port or haven. The criminality of and punishment for such offence is a part of the common law of the realm, not originated by statutory legislation. If the locality where the offence is committed is within the realm, a statute is unnecessary, if not, it is ultra vires. The learned counsel for the defendant, if I rightly understand him, admitted that a foreigner would be liable for murder committed within the three-mile belt. His words were, "If a man intentionally fires at a man, I should not contest it might be murder, whether I carry that admission too far or not."

It certainly would seem a strong proposition to contend for that, if a foreigner from the motive of pure individual malice should intentionally shoot down the master of a fishing-smack peacefully and rightfully casting his net in English waters, or a dredger for oysters, or an officer civil or military in the execution of his duty there, such murder should not be cognizable by English tribunals without a special statute: see Coombes' Case. (1) Manslaughter may come within a hair's breadth of murder; it may be a nice and difficult question to decide; and is the offender's life to be forfeited if his act is on one side of the line? But if there be, say, provocation enough to reduce the homicide, though intentional, to what we call manslaughter, is he to be acquitted altogether?

So, if a foreigner in a foreign ship, with malice prepense, runs his ship at a fishing-boat or a swimmer, and so kills a British

(1) 1 Lea. Cr. C. 388.

subject, is it punishable as murder by our tribunals; while, if he produce the same result by the most gross and culpable negligence, it is not within their jurisdiction? If this be so, a foreign vessel might run riot among our fishing boats with impunity. Nor is this simply an argument ab inexpediente. Admitting a right to these waters for purposes of police and safety, which is, I think, fairly supported by the authorities, it seems to me that the existing laws for the protection of life and limb are a necessary adjunct to such right. The case of The Twee Gebroeders (1) is an authority for there being a jurisdiction over ships lying within the three miles.

I cannot see any sufficient distinction between the rights and immunities of a ship availing itself of a right of passage, and a ship at anchor within the same district; in the latter case the ship is availing itself of the soil which, to give the country a right of interference, must be assumed to be a part of the territory of that country; if so, the water over that soil must, it seems to me, also belong to that territory: cujus est solum ejus est usque ad c¾lum is a maxim of general application; the ship using the soil for anchorage, which is incident to safe navigation, is no more availing itself of the protection of that country and subjecting itself to its laws, than when passing over that soil and availing itself of a water highway, which may be a channel overlooked by the cliffs of the adjacent country.

In Gann v. Whitstable Fishers (2) Lord Westbury says:

"The right to anchor is a necessary part of the right of navigation, because it is essential for the full enjoyment of that right."

Although on the high seas generally the Admiralty may not have jurisdiction over foreigners, except when specified, as in the Merchant Shipping Act, yet in Bruce's Case (3), cited apparently with approval by Kent, the judges agree that the Admiralty had concurrent jurisdiction with the Courts of common law in such waters as Milford Haven; and whether this be considered a port

(1) 3 C. Rob. 162.

(2) 11 H. L. 208.

(3) 2 Lea. C. C. 1093; Kent's Com. vol. i. p. 366, 367; R. v. Cunningham, Bell, Cr. C. 80, per Cockburn, C. J.; see also Sir Leoline Jenkins' Charge; see also 11 & 13 C. B. (N.S.) 413; 11 H. L. 192-218; and Coombes' Case, 1 Lea. Cr. C. 388.

or not, if, as is not denied, the Courts of common law have jurisdiction over a foreigner committing an offence within a port or haven, the Admiralty must have, according to this case, concurrent jurisdiction, and if so, then, assuming I am right as to an offence committed by a foreigner (not on board, on the rigging, or within the hull of a foreign ship, but outside the ship on a British subject in the Queen's peace), being within the jurisdiction of the Crown, if within the three-mile belt, then it seems to me the case is parallel, and the Admiralty must in the same right have jurisdiction over it; and if so, the Central Criminal Court, to which the Admiralty jurisdiction has been given, must also have it.

I have therefore come to the conclusion that as, in this case, the offence, although committed by a foreigner in a foreign ship, is committed dehors the vessel upon a British subject in the Queen's peace, within the three-mile belt, the Court which tried this case had jurisdiction, and that the conviction should be affirmed.

This being the conclusion at which I have arrived, it is unnecessary for me to give an opinion on the last question, viz., whether this offence was an offence committed on board of a British ship.

AMPHLETT, J.A. The prisoner is a foreigner, and committed the offence of which he has been convicted while captain on board a foreign vessel passing along the open sea, within a little less than two miles of the English coast, and the question is, whether, under the circumstances stated in the case, the Admiralty formerly, and now the Central Criminal Court, to which the jurisdiction of the Admiralty has been transferred by statute, was competent to try him.

The following propositions may, I think, be considered as established, both on principle and by authority, and were not, in fact, disputed during the argument before us:-

1. That a foreigner committing an offence of any kind, even against an Englishman, on foreign territory cannot be tried for it in an English court.

2. That a foreigner committing a criminal offence while on English territory, is equally amenable to English law as a subject, except so far, if at all, as he may be exempted therefrom by convention or by some established rule of the law of nations.

Neglecting, then, for the moment, any such case of exemption, the question we have to decide resolves itself into this, viz., whether the locality of the offence was within English territory, or, what for the present purpose appears to me the same thing, within the dominion or sovereignty of England? If it was, I think that, as a necessary attribute of sovereignty, it was the right and duty of the sovereign to enforce order and security to life and property in such territory, and that, so far as necessary, the law of England would in the absence of any other law attach thereto without the necessity of legislation.

I am unable to see any difficulty about venue. The locality not being within the body of any county, the offence was not cognizable under the ordinary commissions of oyer and terminer, but, assuming the locality to have been English territory on the high seas, it was, in my judgment, clearly within the former jurisdiction of the Admiralty. For example, it being established that, by the law of nations, a merchant ship was to be considered as a floating part of the territory of the country to which she belonged, crimes by foreigners, committed on board of an English ship, were held to be cognizable by the English Courts, without any Act of Parliament to that effect: see Anderson's Case. (1)

Now there are two grounds on which it was contended for the Crown that the offence was committed on English territory:-

1. Because, by international law, every maritime nation is entitled to have, as an extension of its territory, such a part of the adjacent sea as may be necessary for its own security, and which, after some fluctuations, had been settled by general consent to extend to a distance of a marine league, or three miles from low-water mark.

2. Because, the death of the party injured through the criminal negligence of the prisoner having occurred on board an English vessel, the offence was in law committed there, and therefore, by the law of nations, on English territory.

I will first dispose of the second ground, which of course is quite independent of the three-mile zone, and if valid would justify the conviction of the prisoner had the offence been committed in the middle of the ocean. Now, according to the decision in R. v.

(1) Law Rep. 1 Cr. C. 261.

Coombes (1), the crime must be, for the purpose of determining the venue, held to have been committed on the English ship where the death occurred; but that doctrine, founded as it is upon a convenient fiction, and binding no doubt upon a British subject, does not decide the question before us, which is, whether a foreigner who committed the offence while he was de facto outside the English territory, could be made amenable to English law. With some doubt I have come to the conclusion that he could not. I can find no authority for saying that a state has any jurisdiction to punish a foreigner who at the time of the commission of the offence was not within the territory, and consequently not owing it any allegiance.

The first ground on which the argument for the Crown was based, viz., the right of maritime states to a zone of three miles over the adjacent seas, remains to be considered.

We know historically that from the earliest times maritime states have claimed dominion over adjacent seas, and often to an outrageous extent. England claimed dominion over the whole of the narrow seas, even to the extent of excluding, if it thought proper, foreign ships from passing over them, and other countries were not far behind England in that respect. These extravagant claims, however, have been long since abandoned, and the freedom of the high seas for the inoffensive navigation of all nations is firmly established, and England and most, if not all, maritime states have been content to limit the claim to advance their frontier seaward to the extent of three miles. That limited extent, however, of maritime territory has been in modern times with remarkable unanimity recognized by the English Courts.

In Reg. v. 49 Casks of Brandy (2) Sir John Nichol, in deciding against the claim of the lord of a manor to wreck beyond low-water mark, said:

"As between nation and nation the territorial right may by a sort of tacit understanding be extended to three miles; but that rests upon different principles, viz., that their own subjects shall not be disturbed in their fishing, and particularly in their coasting trade and communications between place and place during war, &c., but no person ever heard of a land jurisdiction of the body of a county which extended three miles from the coast."

(1) 1 Lea. Cr. C. 388.

(2) 3 Hag. Adm. Rep. 247.

In The Twee Gebroeders (1) Sir W. Scott speaks of the sea within three miles of the coast of Friedland as "waters belonging to Prussia."

In The Leda (2) Dr. Lushington decided that where one of the Merchant Shipping Acts spoke of disputes arising with respect to salvage "in the United Kingdom," those words meant "the land of the United Kingdom and three miles from the shore."

In the General Iron Screw Co. v. Schurmanns (3) it was decided that the limitation upon the liability of a shipowner in case of a collision under one of the Merchant Shipping Acts applied to a case of damage done to a foreign ship within three miles of the English coast, though foreign ships are not mentioned in the Act, and Lord Hatherley, in the course of his judgment, says:

"As to the question how far our legislature could properly affect the rights of foreign ships within the limits of three miles from the coast of this country there can be no possible doubt that the water below low-water mark is part of the high seas. But it is equally beyond question that for certain purposes every country may by the common law of nations legitimately exercise jurisdiction over that portion of the high seas which lies within the distance of three miles from its shores."

Afterwards he says:

"Authorities have been cited to the effect that every nation has the right to use the high seas even within the distance of three miles from the shore of another country, and it was contended that it was not legitimate to interfere with foreigners so using this portion of the common highway, except for the bon‰ fide purposes of defence, protection of the revenue, and the like.

"It is not questioned that there is a right of interference for defence and revenue purposes, and it is difficult to understand why a country having this kind of territorial jurisdiction over a certain portion of the high road of nations should not exercise the right of settling the rules of the road in the interests of commerce. An exercise of jurisdiction for such a purpose would be at least as beneficial as for purposes of defence and revenue."

In Gammel v. Commissioners of Woods and Forests (4) Lord Wensleydale, in discussing the distance to which the exclusive right of the Crown (affirmed in that case) in the salmon fishery on the coast of Scotland extended, says,

"That it would be hardly possible to extend fishing seaward beyond the distance of three miles, which by the acknowledged law of nations belongs to the coast of the country."

(1) 3 Rob. Adm. 162.

(2) Swa. Adm. 42.

(3) 1 J. & H. 180.

(4) 3 Macq. 465.

In this last case it would appear to have been decided by the House of Lords that not only was the three-mile zone within the territory of England, but that the actual property therein was vested in the Crown; and that view seems to have been adopted by the legislature, for in the Act of 21 & 22 Vict. c. 119, which was passed for the purpose of defining the rights of the Crown and the Duchy of Cornwall to mine and minerals under land between high and low-water mark and below low-water mark adjacent to the county of Cornwall, it was by the 2nd section enacted, that all mines and minerals lying below low water under the open sea adjacent to, but not being part of, the county of Cornwall were, as between the Crown and the duchy, vested in her Majesty in right of her Crown "as part of the soil and territorial possessions of the Crown." Moreover, the right of this country to legislate for foreign ships within the zone of three miles from the coast has been exercised by Parliament in the Customs Act (16 & 17 Vict. c. 117), ss. 212, 218, and 236, the Merchant Shipping Act (17 & 18 Vict. c. 104), s. 517, and the Foreign Enlistment Act (32 & 33 Vict. c. 90), s. 24, which were fully brought to our notice in the argument, and it may be pertinently asked, what right could Parliament have to legislate at all for foreign ships within the zone unless it was considered to be English territory?

It is true that neither the Parliament, in the Acts to which I have referred, nor our Courts in modern times, have claimed any right to interfere with the inoffensive passage of a foreign vessel over the zone, and I think it may be conceded that it would be at variance with the established law of nations to do so, unless under special circumstances the security of the state required it; and it may be conceded that, so far as regards internal discipline and acts done on board with no consequences beyond the vessel, the law of the flag would be respected and our criminal law would not attach.

But to extend this exemption, however, from the law of the territory to acts of criminal negligence, by which persons outside the vessel are killed or injured, appears to me to be highly unreasonable and, so far as I know, absolutely without authority.

The assumption by the legislature and in judicial decisions that the three-mile zone is English territory ought, perhaps, to be

binding upon us in an English court of justice without more; but, passing that by, I will proceed to shew that that assumption is in accordance with and fully warranted by international law.

To ascertain that law it is most important in this and all other cases to consult the published opinions of eminent jurists of different countries, for although, as has been justly said, those writers cannot make the law, still if there is found a practical unanimity or a great preponderance of opinion among them, it would afford weighty, and in many cases, conclusive evidence that their statement of the law had been received with the general consent of the civilized nations of the world. Chancellor Kent, in his Commentaries, vol. i. p. 19, says:-

"In cases where the principal jurists agree the presumption will be very great in favour of the solidity of their maxims; and no civilized nation that does not arrogantly sot all ordinary law and justice at defiance will venture to disregard the uniform sense of the established writers on international law."

See other authorities to the same effect, collected and discussed by Sir Robert Phillimore, in his Commentaries on International Law, 2nd ed. vol. i. pp. 61-66.

Both sides, therefore, very properly called our attention to the opinions of almost every accredited writer on international law who has dealt with this question of maritime territory.

As, however, some of my learned Brothers, whose judgments I have had the privilege of seeing, have stated and discussed these writings in detail, I do not think it necessary or right to go over the same ground, or to do more than state briefly the general conclusions I have myself derived from them.