[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, contr, 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 rponse sans rplique, 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 extrieures, une branche de droit international, qui supple aux lacunes des autres et avertit de leurs vices, mais ils ont mme contribu puissamment la formation et l'amlioration 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 Europische Vlkerrecht, 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 Myas (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 Trait des Prises Maritimes, published during the Crimean War (1855) (vol. i., p. 93), it is stated that the "porte du canon" is recognised as the true limit of territorial waters. Lastly, Mass, in his recent edition of Le Droit Commercial dans ses rapports avec le Droit des Gens, observes:-
That a state has not "la pleine proprit 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 plutt la proprit est grve d'une servitude naturelle au profit de tous les peuples navigateurs. Cependant il en est autrement pour la pche, qui ne peut tre faite que par, les habitants du littoral." He then says:- "C'est, du reste, un point fort difficile dcider en thorie pure, que celui de savoir quelle est l'tendue 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 lnea, 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 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,
(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'tendue 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 toutes les nations. D'o il suit, qu'aucun souverain n'a droit de s'attribuer l'empire de la mer.
"Mais la libert d'user de la mer doit avoir des, bornes, pour prvenir les inconvniens qui auraient lieu si chacun en usait selon ses vues particulires: en effet, chaque souverain, tant bien fond a dfendre le commerce tranger dans ses possessions, et les garantir d'insulte" [observe the reason of the jurisdiction conceded], - "peut empcher qu'on n'en approche qu' une certaine distance.
"Ce principe tabli, il n'a plus t question que de convenir, entre les souverains, de la distance jusqu' laquelle s'tendrait leur domination respective; et c'est quoi ont pourvu les traits de paix et de commerce, qui ont fix cette distance deux lieues de la cte. Ainsi, au-del de cette distance, la navigation doit absolument tre libre, et par consequent tre exempte de toute visite de la part des commandans des garde-ctes; mais, en dec, on est suspect de commerce clandestin et prohib; c'est pourquoi on est sujet tre visit, et mme voir confisquer les marchandises et la navire, moins qu'il n'y ait preuve qu'on n'a excd la distance dtermine, 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 fond sur son droit de dfense;" 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 proprit; on ne peut pas dire que l'tat, propritaire des ctes, soit propritaire de cette mer." He further says, "On sent que respace maritime soumis ainsi, non pas un droit de proprit, mais a la souverainet d'un tat, doit tre ncessairement renferm dans d'troites limites. C'est ce rgime complet que rpondent expressment la dnomination de mer territoriale, et la limite commune de la plus forte porte 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 pntrent dans les eaux d'un tat tranger, jettent l'ancre dans un port tranger, remontent un fleuve, une rivire, etc., sont soumis la souverainet de l'tat tranger, tant qu'ils restent sur le territoire maritime de ce dernier." His note is: "Les navires trangers, comme les voyageurs trangers, ne peuvent pas se soustraire la souverainet de l'tat o ils se trouvent. Cette souverainet se fait sentir, aussi bien sur la mer dpendant du territoire, que sur la terre ferme; il n'existe aucun motif d'accorder des immunits aux navires trangers. L'tat tranger exerce donc la police sur tous les navires mouills dans le port, et ses tribunaux sont comptents pour connatre des procs civils, comme aussi des dlits
(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 trangers, lorsque le navire se trouve dans les eaux qui dpendent du territoire:" § 319.
"Les navires qui se bornent longer les ctes d'un Etat, dans la partie de la mer qui fait partie du territoire de ce dernier, sont soumis temporairement la souverainet de cet tat, en ce sens, qu'ils doivent respecter les ordonnances militaires, ou de police, prises par lui pour la sret de son territoire et de la population ctire." And his note to this is: "V. art. 302 et 310. - La juridiction de l'tat riverain ne s'tend, sur la 'mer voisine,' que dans la mesure juge ncessaire par la police et les autorits militaires. Le navire est, sous tous les autres rapports, aussi libre que s'il se trouvait en pleine mer, c'est--dire qu'il est regard comme une partie flottante des territoires de l'tat dont il dpend:" § 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 vorbersegelnden 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 btiments de commerce trangers, stationnant dans un port franais, sont soumis la juridiction territoriale pour ce qui concerne les dlits entre trangers et notamment entre gens de l'quipage, dont la rpression n'intresse pas exclusivement la discipline et l'administration intrieure du bord: C. Nap. 3; Av. Cons. d'Et. 20 Nov. 1806."
"Il en est ainsi, surtout, lorsque ces dlits sont de nature compromettre la tranquillit du port, ou lorsque l'intervention de l'autorit locale a t rclame."
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.
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 Prcis 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 codifi, 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.
These conclusions are as follows:-
1. That all these writers, and, as far as I can see, with complete unanimity, acknowledge the right of a maritime state to an extension of their territory over some portion of the adjacent sea.
2. That, although there is found a great variety of opinion among these writers as to the distance to which such maritime territory should be allowed, not one of them puts such distance at less than three miles.
3. That all the earlier writers, including Grotius, the vigorous advocate of the free navigation of the high seas, and many of the later writers, maintained that within the zone of three miles the state
had, without qualification, a proprietary, as well as a territorial, right, so that it might at its pleasure exclude foreign ships from passing along the same; but that others of the later writers contended that the state had a territorial, but not a proprietary, right over the zone, or that, at all events, the innocent use of the zone by foreign ships for the purpose of navigation could not without wrong be interfered with.
4. That not one of the last-mentioned writers maintained that the sovereign state had no jurisdiction to prevent what I may call external wrong committed by them on board a foreign vessel within the zone. Indeed the writers most relied upon for the defence, such as Ortolan and Calvo, I think, imply, if they do not say, the contrary, for while arguing against the right of the maritime state to exclude foreign ships from the zone, they all appear to me to admit in substance that they have the right to make laws of "police and surety."
Does not that necessarily imply that the maritime state may not only make, but enforce, laws against such acts of criminal negligence as are charged against the prisoner in this case, and how can they be adequately enforced but by attaching to them penal consequences?
According to the meaning attributed to some of these writers by the counsel for the prisoner, a foreigner may come on the high seas close to our shores, and so long as he steers clear of acts of piracy, he may injure and insult our people, destroy their property, and endanger the navigation with impunity. Cases might be put without number of intolerable wrongs which might be thus committed in the zone against the dignity, honour, and security of the state, and if it be the fact that any of those writers have maintained that such wrongs are not punishable by the state on whose territory they are committed, they are at variance in that respect with an enormous majority of other writers of the first eminence, and may, I think, be safely put aside.
It is no sufficient answer to say that a foreigner so acting would be punishable by the law of his own country. For it may be that he does not belong to any civilised country, or that the law of the country to which he belongs has made no provision for the punishment of an outrage upon the subject of another state out of their
own dominions. Indeed until a comparatively recent period our own law contained no such provision.
Nor is it any answer to say that the same evils might arise on the ocean beyond the zone. Our immediate shores would at least be protected by extending our frontier to that distance, nor would any collision such as has happened in this case be so likely to occur.
It is said that no precedent can be found for the exercise by the Court of Admiralty of criminal jurisdiction over a foreigner on board of a foreign vessel, but it must be remembered that the jurisdiction is only claimed in respect of crimes committed against a person outside the vessel, and where such vessel is within the zone. Such a case must be rare, and very probably was never under the consideration of any Court before.
For these reasons I think that the Central Criminal Court had jurisdiction to try the prisoner for the offence with which he was charged, and that the conviction, therefore, ought to be confirmed.
BRETT, J.A. The prisoner was at the Central Criminal Court convicted of manslaughter, that is to say, he was found to have been guilty of acts and their results which amount, according to the law of England, to the crime of manslaughter. The prisoner was a German subject.
The question reserved is, whether the Court which tried him had jurisdiction so to do. All are agreed that it had none, unless by reason of the locality in which the crime was committed. It was committed on the open sea, but within three miles of the coast of England. It is suggested that it was also committed on board an English ship. In either case it is urged it was committed in a locality or place subject to the criminal law of England, and to the jurisdiction of the Central Criminal Court. It was argued on the one side that the open sea within three miles of the coast of England is a part of the territory of England as much and as completely as if it were land a part of England; that the criminal law of England, unless expressly restricted, applies to every crime, by whomsoever committed, within the territory of England; that there is no express restriction as to the crime in question; that
the criminal law, therefore, is to be applied to the present case. It was further argued that at all events the crime was committed on board an English ship, and, therefore, although by a foreigner, it is by statute to be tried according to the criminal law of England. It was answered that the open sea within three miles of the coast of England is not in any sense a part of the territory of England or within the jurisdiction of the Crown of England; that if it be within the jurisdiction of the Crown, so that the Sovereign or Parliament of England might, by constituting a Court to do so, have properly taken cognizance of the crime, yet no such Court has been constituted, and, therefore, the Central Criminal Court had no jurisdiction. It was further argued that even though the open sea within three miles be a part of the territory of England, yet the crime was committed on board a foreign ship, and, therefore, could not be tried in England.
The questions raised by these arguments seem to me to be: First, is the open sea within three miles of the coast a part of the territory of England as much and as completely as if it were land a part of England? Secondly, if it is, has the Central Criminal Court any jurisdiction to try alleged crimes there committed, by whomsoever committed? Thirdly, can the crime be properly said to have been committed on board of an English ship so as thereby to give jurisdiction to an English Court, although the sea in question be not a part of England? Fourthly, can it be properly said to have been committed on board of the German ship; and if so, is jurisdiction thereby ousted from an English Court, although the sea in question be a part of English territory? As to the first part, the argument does not deny that it is an axiom of law that the criminal law of England runs everywhere within England, so as to be applicable to every crime by whomsoever therein committed. If the three miles of open sea are a part of the territory of England, it was not denied, - nay it was expressly admitted, - that unless there be an exception in favour of a crime committed on board of a foreign passing ship, and this crime was committed on board of such a ship, the criminal law of England might of right be applied to the crime. What was denied upon this hypothesis, as to the three miles of open sea, was that the Central Criminal Court, or indeed any Court hitherto
constituted by the sovereign authority, had had jurisdiction given to it to apply the criminal law to such a case. The great question argued was, whether the three miles of open sea next the coast are or are not a part of the territory of England, meaning thereby a territory in which its law is paramount and exclusive. Before examining this proposition, I should wish to observe that the question what is or is not a part of the realm is, in my opinion, not in general a question for judges to decide. Their duty as to the administration of the criminal law is to administer it, as between the Crown and all persons within the realm, with regard to any crime alleged to have been committed within the realm, and as between the Crown and all the Queen's subjects, with regard to any crime alleged to have been committed by any subject of the Queen anywhere. What are the limits of the realm should in general be declared by Parliament. Its declaration would be conclusive, either as authority or as evidence. But in this case of the open sea there is no such declaration, and the question is in this case necessarily left to the judges, and to be determined on other evidence or authority. Such evidence might have consisted of proof of a continuous public claim by the Crown of England, enforced, when practicable, by arms, but not consented to by other nations. I should have considered such proof sufficient for English judges. In England it cannot be admitted that the limits of England depend on the consent of any other nation. But no such evidence was offered. The only evidence suggested in this case is, that by the law of nations every country bordered by the sea is to be held to have, as part of its territory, meaning thereby a territory in which its law is paramount and exclusive, the three miles of open sea next to its coast; and, therefore, that England among others has such territory. The question on both sides has been made to depend on whether such is or is not proved to be the law of nations. On the one side it is said there is evidence and authority on which the Court ought to hold that such is the law of nations; on the other side it is said there is no such evidence or authority. The evidence relied on for the Crown is an alleged common acquiescence by recognized jurists of so many countries, as to be substantially of all countries, and declarations of statesmen, and similar declarations of English judges in court in the
course of administering law. On the other side it is said that the declarations cited of the judges were opinions only, and not decisions; that there is no common acquiescence of jurists to the alleged effect, or declarations of statesmen; and that if there were, such acquiescence or declarations are not sufficient; that there should be acquiescence by governments declared in treaties or evidenced by acts of government. It is admitted that there is no such acquiescence by any general treaty or by unequivocal acts of many, if of any, governments. Main reliance is placed by the one side on the alleged common agreement of jurists. Their acquiescence or agreement in fact is denied by the other side, and, further, their authority is denied, if such acquiescence or agreement is held to exist.
It seems, therefore, necessary to determine, first, what is the authority of a common agreement or acquiescence of jurists; secondly, is there any such acquiescence or agreement with regard to three miles of open sea adjacent to countries? thirdly, if there is, what is the exact purport of such agreement. As to the first, the propositions in respect of which the testimony of jurists may be accepted, and the grounds of accepting their testimony, are stated by Grotius:-
"As the laws of each state are made with regard to its own particular advantage, so the consent of all states, or of the greater number, may well make laws common between them all. And it seems that in fact such laws have been made, which tend to the advantage, not of each state in particular, but of the whole assemblage of such states. These are what are called the law of nations as distinguished from the law of nature": Introduction. s. 18.
That is to say, that there is in fact a law of nations, enacted, as it were, by common consent. Again, he says:
"I have used in favour of this law the testimony of philosophers, historians, poets, and even of orators; not that they are to be indiscriminately relied on, &c., but because where many persons in different ages and countries concur in the same statement, it (i.e. the sentiment or proposition) must be referred to some general cause. In the subject now in question, this cause must be either a just deduction from the principles of natural justice or universal consent. The first discovers to us the natural law, the second the law of nations. In order to distinguish these two branches of the same science, we must consider not merely the terms which authors have used to define them (for they often confound the terms natural law and law of nations), but the nature of the subject in question. For
if a certain maxim, which cannot fairly be inferred from admitted principles, is nevertheless found to be everywhere observed, there is reason to conclude that it derives its origin from positive institution:" s. 41.
This latter citation seems to me to assert that the testimony of writers and statesmen is to be received, and that if they, being of different nations and living at different times, have agreed to a common proposition which is not unreasonable, such agreement may be received as evidence of a common consent of nations, forming thereby a law of nations:-
"To form an useful library (says Martens, Introduction, s. 8), for the studying of the positive law of nations, the following classes of books are indispensably necessary." He then enumerates treaties, history, &c., and lastly, he says, "And above all, all the regular treatises on this science."
Wheaton (c. 1, s. 11) is still more distinct:-
"The various sources of international law," he says, are these: (1.) 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. Without wishing to exaggerate the importance of these writers, or to substitute in any case their authority for the principles of reason, it may be affirmed that they are generally impartial in their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down in their works being impugned by the avowal of contrary principles."
Kent (Lecture 1, p. 2), says:
"The most useful and practical part of the law of nations is, no doubt, instituted on positive law, founded on usage, consent, and agreement." At p. 16:- "Grotius, therefore, went purposely into the details of history and the usages of nations; and he resorted to the works of philosophers, historians, orators, poets, civilians, and divines for the materials out of which the science of public morality should be formed; proceeding on the principle that when many men at different times and places unanimously affirmed the same thing for truth, it ought to be ascribed to some universal cause."
He then cites Puffendorf and Vattel as authorities for the proposition he has in hand. And then, at p. 18, he says:
"We now appeal to more accurate, more authentic, more precise, and more commanding evidence of the rules of public law, by a reference to the decisions of those tribunals to whom in every country the administration of that branch of jurisprudence is specially intrusted, &c." "But in the absence of higher and more authoritative sanctions, the ordinances of foreign states, the opinions of eminent statesmen, and the writings of distinguished jurists are regarded as of great consideration on questions not settled by conventional law. 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 on international law."
Story in his Treatise on the Conflict of Laws (s. 3), says, after stating the use among commercial nations of a system of international justice,
"The system thus introduced for the purposes of commerce has gradually extended itself to other objects, &c. New rules, resting on the basis of general convenience and an enlarged sense of national duty, have from time to time been promulgated by jurists and supported by courts of justice, by a course of judicial reasoning which has commanded almost universal confidence, respect, and obedience without the aid either of municipal statutes, or of royal ordinances, or of international treaties."
This is a strong assertion of the respect due to the propositions of great jurists, though they may not have been adopted either in legislation or treaties. And Phillimore, summing up all these, says, in chap. 5:
"The next and only other source of international law is the consent of nations. This consent is expressed in two ways, (1.), it is openly expressed by being embodied in positive conventions or treaties; (2.), it is tacitly expressed by long usage, practice, and custom." And in chap. 6:- "Such being the influence of usage upon international law, it becomes of importance to ascertain where the repositories and what the evidence may be of this great source of international law."
He then enumerates history, treaties, proclamations or manifestoes, marine ordinances, the decisions of prize courts. And then in chap. 7:-
"The consent of nations is further evidenced by the concurrent testimony of great writers upon international jurisprudence."
(Citing Ortolan, b. 1, c. iv. t. i. p. 74):-
"The works of some of them have become recognized digests of the principles of the science, and to them every civilized country yields great, if not implicit, homage." In the note he says: "The English Courts of common law, and English commentators on that law, both in cases of public and private international law, have been in the habit of referring to other works of those foreign authors as containing evidence of the law to be administered in England." "Lord Mansfield," he says, "in fact built up the fabric of English commercial law upon the foundation of the principles contained in the works of foreign jurists. In the Admiralty and Ecclesiastical Courts these works have always been referred to as authorities." Speaking of Grotius, he says:- "He may be almost said to have himself laid the foundation of that great pillar of international law, the authority of international jurists."
Such are the views expressed in the treatises of recognised writers. The same opinion seems to be affirmed in judgments of the greatest judges. Lord Stowell, in The Maria (1), says:-
"If authority is required, I have authority, I mean, &c., Baron Puffendorf." Again:- "All writers upon the law of nations unanimously acknowledge it." And, again:- "Vattel is here to be considered, not as a lawyer merely delivering an opinion, but as a witness asserting the fact, the fact that such is the existing practice of modern Europe."
Lord Stowell then cites as authorities for the proposition he is enunciating, Valin, Vattel, and other known writers. I have cited these specific statements from this one judgment of Lord Stowell, but I think that a perusal of his judgments throughout his judicial career, and of those of Dr. Lushington, will shew that neither of those great masters ever treated of or decided a disputed proposition of international law without citing and relying on, as authority and evidence, the expressed opinions of recognised writers on the law of nations. In Triquet v. Bath (2) Lord Mansfield says upon this very point, and in order to justify his own reliance on the writers:-
"I remember a case before Lord Talbot of Buvot v. Barbut, in which Lord Talbot declared a clear opinion, that the law of nations in its full extent was part of the law of England, and that the law of nations was to be collected from the practice of different nations and the authority of writers. And accordingly he argued and determined from such instances, and the authority of Grotius, Barbeyrac, Bynkershoek, Wiquefort, &c., there being no English writers of eminence upon the subject. I was counsel in the case, says Lord Mansfield, and have a full note of it. I remember, too, Lord Hardwicke's declaring his opinion to the same effect."
Here, therefore, we have the opinions and practice of Lord Talbot, Lord Hardwicke, Lord Mansfield, Lord Stowell, and Dr. Lushington.
As to the opinions of statesmen, I will cite only that of Sir James Mackintosh, because, if any can be decisive, his must be. In his Discourse upon the Study of the Law of Nature and the Law of Nations, he says:
"What we at the present time call the law of nations is become, as to many points, as precise and certain as positive law; the principles of it are more particularly
(1) 1 C. Rob. at p. 351.
(2) 3 Burr. 1478.
established in the writings of those who have treated on the science which I am about to treat." Speaking of Grotius he says: "His mind was not so servile and stupid as that he used the opinions of poets and orators, of historians and philosophers, as the decisions of judges without appeal. He cites them, as he himself says, as witnesses, whose unanimous consent or agreement, strengthened moreover by their differences on almost all other points, is conclusive proof of the general agreement of mankind upon the great rules of duty and the fundamental principles of morality."
This passage is styled by Hallam as "a noble defence of Grotius," whom he himself styles as "the founder of the modern law of nations"; Literature of Europe, part iii. c. 4, s. 3.
And Phillimore again, citing this, says (at p. 62):
"In truth, a reverence for the opinion of accredited writers upon public and international law has been a distinguishing characteristic of statesmen in all countries, and perhaps especially of those who have deserved that appellation in this kingdom. It has been felt and eloquently expressed by them, that though these writers were not infallible, nevertheless the methodized reasonings of the great publicists and jurists formed the digest and jurisprudence of the Christian world."
And in chap. 8 (Recapitulation of Sources of International Law) he says:
"The sources, then, from which international jurisprudence is derived are these," &c., &c. He then enumerates many, and among them this: "The universal consent of nations, both as expressed by positive compact or treaty, and as implied by usage, custom, and practice; such usage, custom, and practice being evidenced in various ways: by precedents recorded in history, by being embodied and recorded in treaties, in public documents of states, in the decisions of international tribunals, in the works of eminent writers upon international jurisprudence."
And he cites a remarkable adhesion to the same view by a great American statesman. In Mr. Webster's letter of the 28th of March, 1843, to the British Government, that statesman says:
"If such well-known distinction exists, where are the proofs of it? What writers of authority on the public law, what adjudications in Courts of Admiralty, what public treaties recognise it?"
These authorities seem to me to make it clear that the consent of nations is requisite to make any proposition a part of the law of nations. Their consent is to be assumed to the logical application to given facts of the ethical axioms of right and wrong. Such an application is the foundation of every system of law, including necessarily the law of nations. Their consent must be proved by sufficient evidence to any other asserted proposition of international law. The question is, what is to be considered sufficient
proof of such consent. On the one side, it is said, that among other heads of evidence of such consent the writings of recognised jurists of different nations are to be received, and that a common consent of them all, or of substantially all of them, to a reasonable proposition may be accepted as proof of the common consent of nations, though the proposition has not yet been brought, for the purposes of action, before the governments of nations. On the other side, it is said, that the propositions of such writers are theories, not binding unless and until they have been adopted by governments; and that such adoption must be shewn by some express declarations of governments, or by some acts of governments. If the latter be true, it is obvious that there can be no law on any particular point until it has arisen in fact for the treatment of governments; it cannot be raised by them and decided by anticipation, because there is no common tribunal or legislature. Yet the latter contention is, as I understand, approved by high authority among us.
It is in deference to the weight of that authority that I have so elaborated the citations from great writers, judges, and statesmen. And I feel obliged to say that, in my opinion, the long list of great authorities to which I have referred and the constant practice of the English International Court, nay, I think, of all English Courts, shew that it is considered that all countries have recognised that the consent of them all, as sovereigns, may and should be inferred in favour of a reasonable proposition from a common consent to it of all, or of such a considerable number as to amount substantially to all, recognised writers on international law, although there be no other evidence of their sovereign assent.
The next questions are whether there is, by reason of such or other evidence, proof of a common consent of nations to any propositions, and if to any, to what proposition, with regard to the three miles of open sea which are adjacent to any country. And first, let us consider the writers. It seems to me that Grotius assents to a right to the adjacent sea, and to the proposition that such right is a territorial right. It will be necessary hereafter to consider the sense in which that term "territorial" is used by the writers:-
"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."
This seems to me to admit a territorial right in a country over the adjacent sea. It does not explicitly determine the limits of that sea; but it states, as the principle of limitation, the distance from land over which compulsion could be exercised from the land. There is no real difference, as it seems to me, between this and the proposition of Bynkershoek. The more general principle enunciated by him is -
"Unde dominium maris proximi non ultra concedimus quam e terra illi imperari potest."
That is the same as the principle of Grotius. In order to carry this principle into practice, he lays down the other:
"Quare omnino videtur rectius eo potestatem terr¾ extendi quousque tormenta exploduntur."
And then further to shew that he is adapting the practical application of his principle to the times in which he lived, he says:
"Loquor autem de his temporibus, quibus illis machinis utimur; alioquin generaliter dicendum esset, potestatem terr¾ finiri ubi finitur armorum vis."
He gives the dominion of the adjacent sea to the adjacent land, and defines the limit of such sea to be the distance of a cannon shot from the land. I do not think it useful to cite the words on this point of all the other writers. It is not, as I understand, denied that all, or substantially all, agree that there is a right of some kind over the adjacent open sea, and that none deny the extent of a marine league or three miles, although some claim more. As to the nature of that right, Puffendorf speaks of it as -
"An accessory to the land as much as the ditch of a town is accessory to the town."
I apprehend his meaning to be, that it is a part of the town, that is, a part of the territory of the town. Wolff is still more express. Speaking of the adjacent sea, he says:
"Quoniam partes maris occupat¾ ad territorium illius gentis pertinent, qu¾ eas occupavit, quale jus Rector civitatis in suo territorio habet, tale etiam ipsi competit in partibus maris occupatis. Per consequens, qui in iis versantur iisdem legibus subsunt quam qui in terris habitant aut commorantur, etiam peregrini admissi."
This is to say that the adjacent sea is "territory," and that a consequence of its being territory is that the country has its ordinary jurisdictions over all who are within that territory. Hubner calls this sea "an accessory." Moser says it is under the sovereignty of the adjacent land. Hautefeuille calls them "territorial waters," and declares that they are the property of the nation, and that consequently the nation has over them all the rights of sovereignty without exception. Ortolan has a chapter (chap. viii.) headed "De la mer Territoriale." He admits that there is a right in the adjacent country over the adjacent territorial water. As to its extent, he says:
"La rgle que donne Bynkershoek: Terr¾ potestas finitur ubi finitur armorum vis, est aujourd'hui la rgle du droit des gens, et depuis l'invention des armes feu cette distance a ordinairement 't considre comme de trois milles." As to the kind of jurisdiction, he says (p. 157): "Ce n'est pas seulement la dfense gnrale du pays et de ses intrts publics contre toutes les attaques dont il pourrait tre l'objet; c'est aussi la dfense de ses nationaux, de ses habitants, de toute personne mme trangere, qui y rsident, dans leur sret, dans leur proprit, dans leurs intrts individuels contre les dlits de toute sorte qui pourraient y porter atteinte. Charg de cette dfense publique et particulire sur tout cet espace, l'tat a le droit de faire les rglements, les lois ncessaires ce but, et d'employer la force publique pour les y faire excuter. Ainsi les lois de police et de sret y sont obligatoires. En un mot, l'tat a sur cet espace non la proprit, mais un droit d'empire; un pouvoir de lgislation, de surveillance et de juridiction, conformment aux rgles de la juridiction internationale."
A right of sovereignty which gives a right of legislation, in order to protect the rights of property and to ensure the individual safety of all, even strangers, against offence of every kind, is, I think, as complete a sovereign right as any nation has on land. It is true that Ortolan denies that the nation has a right of property in this territorial sea:
"Ainsi, le droit qui existe sur la mer territoriale n'est pas un droit de proprit; on ne peut pas dire que l'tat, propritaire des ctes, soit propritaire de cette mer."
But this assertion, it must be observed, is made as a conclusion from a previous chain of reasons. Therefore, it says, the right is not a right of property. The previous reason is, the want of power properly to refuse a free passage to ships passing with harmless intent. The conclusion is not, to English lawyers, a
satisfactory result of such a cause. There may be a right of property, subject to a prescriptive accorded free right of way. I cannot but think, therefore, that substantially all the foreign jurists are in accord in asserting that, by the common consent of all nations, each which is bordered by an open sea has over the three adjacent miles of it a territorial right. And the sense in which they all use that term seems to me to be fully explained by Vattel (lib. i. c. 18, s. 205). He says:
"Lorsqu'une nation s'empare d'un pays qui n'appartient encore personne, elle est cense y occuper l'empire, ou la souverainet, en mme temps que le domaine." "Tout l'espace dans lequel une nation tend son empire forme le ressort de sa juridiction et s'appelle son territoire." At lib. ii. s. 84:- "L'empire, uni au domaine, tablit la juridiction de la nation dans le pays qui lui appartient, dans son territoire."
This seems plain; sovereignty and dominion necessarily give or import jurisdiction, and do so throughout the territory. Applying this to the territorial sea (at lib. 1, c. 23, s. 295) he says:
"Quand une nation s'empare de certaines parties de la mer, elle y occupe l'empire aussi bien que le domaine, etc. Ces parties de la mer sont de la juridiction du territoire de la nation; le souverain y commande, il y donne des lois et peut rprimer ceux qui les violent; en un mot, il y a tous les mmes droits qui lui appartiennent sur la terre," etc.
It seems to me that this is in reality a fair representation of the accord or agreement of substantially all the foreign writers on international law; and that they all agree in asserting that, by the consent of all nations, each, which is bordered by open sea, has a right over such adjacent sea as a territorial sea, that is to say, as a part of its territory; and that they all mean thereby to assert that it follows, as a consequence of such sea being a part of its territory, that each such nation has in general the same right to legislate and to enforce its legislation over that part of the sea as it has over its land territory. With its own consent, given to all other nations in the same way as they have consented to its right of territory, consent from which neither it nor they can rightly depart without the consent of all, there is for all nations a free right of way to pass over such sea with harmless intent; but such a right does not derogate from the exercise of all its sovereign rights in other respects. As to the extent of this territory, it is impossible to say that all writers have been always agreed as to its
boundary seaward. Some nations have in the olden times claimed more than the three miles. The reasonings of some writers would now give more than three miles; but no nation is, I think, shewn to claim less than three miles, and all nations and writers yield to three miles at least. If that be so, as I think it is, it may properly be said that all are agreed as to three miles. If one claims a debt of 1000l. and the other admits a debt of 500l., they are agreed that there is a debt of 500l., though they are in dispute as to the other 500l. Let us now proceed to the American and English writers. Wheaton (c. 4, s. 10) says:
"The controversy how far the open sea or main ocean beyond the immediate boundary of the coasts may be appropriated by one nation to the exclusion of others, &c., can hardly be considered open at this day. We have already seen that by the generally approved usage of nations, which forms the basis of international law, the maritime territory of every nation extends (1), to the ports, harbours, bays, &c.; (2) to the distance of a marine league, or as far as a cannon shot will reach from the shore, along all the coasts of the state." And afterwards - "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."
In these passages the same expressions are used as are used by the foreign writers, namely, "maritime territory," and, as a paraphrase, "an exclusive proprietary right."
The passage in Kent (s. 2, p. 29) is said to be indistinct. I think it will be seen that the only portions of the received propositions which he declares to be indistinct are those which relate to the distance. I think he shews that he is clearly of opinion that for some distance there is an exclusive dominion. This meaning is certainly attributed to Kent by Sir R. Phillimore, who cites this passage of Kent among other authorities in support of the following statement:-
"Though the open sea be thus incapable of being subject to the rights of property or jurisdiction, yet reason, practice, and authority have firmly settled that a different rule is applicable to certain portions of the sea. And, first, with respect to that portion of the sea which washes the coast of an independent state, &c., the rule of law may be now considered as fairly established, namely, that this absolute property and jurisdiction does not extend, unless by the specific provisions of a treaty, or an unquestionable usage, beyond a marine league, &c. In the sea, out of reach of cannon shot, says Lord Stowell, universal use is presumed. This (i.e. the reach of cannon shot or a marine league) is the limit fixed to absolute property and jurisdiction."
In The Maria (1), Lord Stowell says:
"It might likewise be improper for me to pass over entirely without notice, as another preliminary observation, though without meaning to lay any particular stress on it, that the transaction in question took place in the British Channel close upon the British coast, a station over which the crown of England has from pretty remote antiquity always asserted something of that special jurisdiction which the sovereigns of other countries have claimed and exercised over certain parts of the seas adjoining to their coasts."
This is not precise, but it could not have been written by Lord Stowell in such a judgment if he had intended to reject the proposition which asserts jurisdiction over the adjacent open sea within some limit of distance. His view of the law, however, cannot be doubted. In The Twee Gebroeders (2) the Prussian consul claimed restitution of four Dutch ships seized by an English man-of-war; on a suggestion by the consul that the seizure was made within the protection of the Prussian territory, Lord Stowell, in giving judgment, said:
"This ship was taken on a voyage to Amsterdam, which was then under blockade. A claim has been given for the Prussian government, asserting the capture to have been made within the Prussian territory. It has been contended that, although the act of capture itself might not have taken place within the neutral territory, yet that the ship to which the capturing boats belonged was actually lying within the neutral limits. The first fact to be determined is the character of the place where the capturing ship lay, whether she was actually stationed within those portions of land and water, or of something between water and land, which are considered to be within Prussian territory. She was lying within the eastern branch of the Eems, within what I think may be considered as a distance of three miles at most from East Friesland. I am of opinion that the ship was lying within those limits in which all direct operations are by the law of nations forbidden to be exercised. No proximate acts of war are in any manner to be allowed to originate on neutral ground, and I cannot but think that such an act as this, that a ship should station herself on neutral territory and send out her beats on hostile enterprises, is an act of hostility much too immediate to be permitted. The capture cannot be maintained."
This case seems to me to be of immense importance in the present discussion. The very ground of decision is, that the capturing ship was stationed within neutral territory. The only reason why she was held to be so was, that the three miles of sea was the territory of Prussia. The ground of that last decision is not that the water was intra fauces or otherwise. It is only on the ground that the ship was within three miles of the coast. Here,
(1) 1 C. Rob. 352.
(2) 3 C. Rob. 162.
therefore, we have a claim based on this principle made by a government, an opinion of Lord Stowell, and a judicial decision by him in an international court.
In the case of The Leda (1) Dr. Lushington held that s. 330 of the Merchant Shipping Act, 1864, which is limited in terms to the United Kingdom, "applied to the three miles of open sea round England."
"What," he says, "are the limits of the United Kingdom? The only answer I can conceive to that question is, the land of the United Kingdom and three miles from the shore."
In the General Iron Screw Colliery Co. v. Schurmanns (2), there had been a collision between a British ship of the plaintiffs and a Dutch ship, two miles and a half off Dungeness. The British ship had in the Admiralty Court been held solely to blame. The plaintiffs, her owners, filed a bill in Chancery to declare a limitation of her liability according to the provisions of the Merchant Shipping Act. It was admitted that, unless there was reciprocity, that is to say, that unless the statute might, in like case, have been relied on by the foreign ship, it could not be relied on against her. The question therefore argued was, whether the statute applied to the locality of the collision, and therefore would have applied to the foreign ship. It was argued for the plaintiffs that the ninth part of the statute is general, and therefore applies to the whole of Her Majesty's dominions. The statute must, therefore, be taken, it was said, to extend as far as jurisdiction could be asserted consistently with the law of nations. It has long been the settled law of nations that each country may exercise jurisdiction over the sea within three miles of the shore. The answering argument was: "The fallacy of the argument for the plaintiffs lies in the assumption that a country has by the law of nations a general territorial jurisdiction to the distance of three miles from its coast. The question as to jurisdiction and territorial jurisdiction, that is to say, jurisdiction on the ground of the locality being the territory of England, was precisely raised by the facts and arguments. Lord Hatherley's judgment is:-
"With respect to foreign ships, I shall adhere to the opinion which I expressed
(1) Swa. Adm. 40.
(2) 1 J. & H. 180.
in Cope v. Doherty (1), that a foreign ship meeting a British ship on the open ocean cannot properly be abridged of her rights by an act of the British legislature. Then comes 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 sea. But it is equally beyond question, that for certain purposes every country may, by the common law of nations, exercise jurisdiction over that portion of the high seas which lies within three miles from its shores."
He cites The Leda, and holds that the statute does apply to foreign as well as to British ships within the three miles. I can see no principle on which this application of the British statute can be founded other than the principle that a British statute in general terms is applicable to every part of British territory. The foundation of the judgment therefore is, that the three miles of high sea or open sea next to the coast is a part of the British territory, and by citing The Leda the learned judge shewed that he so intended.
In Free Fishers of Whitstable v. Gann (2), Erle, C.J., says:
"The soil of the sea shore to the extent of three miles from the beach is vested in the Crown."
In Gann v. Free Fishers of Whitstable (3) this was not denied, though it was held that no toll can be taken for the mere fact of a ship anchoring, as part of her process of navigating through the three miles. Lord Chelmsford says:
"The three-miles limit depends upon a rule of international law, by which every independent state is considered to have territorial property and jurisdiction in the seas which wash their coast within the assumed distance of a cannon shot from the shore."
And in Gammell v. Commissioners of Woods and Forests (4) it was held that salmon fishing in the open sea around the coast belongs to the Crown. Lord Wensleydale, at p. 465, says:
"It may be worth while to observe that it would be hardly possible to extend it seaward beyond the distance of three miles, which by the acknowledged law of nations belongs to the coast of the country, is under the dominion of the country by being within cannon range, and so capable of being kept in perpetual possession."
These expressions of great lawyers are, no doubt, not binding authority, but they disclose an intimate acquaintance with the writers, using their very terms of art, and shew that these judges
(1) 4 K. & J. 367.
(2) 11 C. B. (N.S.) 387.
(3) 2 H. L. C. 192.
(4) 3 Macq. 419.
acquiesced in the authority and the law of those writers. And the full meaning of so learned a judge as Lord Wensleydale is to be gathered from the passage in Co. Litt., s. 439. The section is:
"In the same manner it seemeth where a man is out of the realm, &c., if such a one be disseised," &c. The comment is - "Out of the realm, id est, extra regnum, as much as to say as out of the power of the King of England, as of his crown of England; for if a man be upon the sea of England he is within the kingdom or realm of England, and within the liegeance of the King of England as of his crown of England. And yet altum mare is out of the jurisdiction of the common law, and within the jurisdiction of the Lord Admiral," &c.
Once let it be fixed what is the sea of England - and this is high authority that such sea is within the kingdom, and realm, and dominion of the sovereign, - that is to say, once agree that the three miles are the sea of England, and then it follows that the rights of England within that sea are as if it were land territory, and are the same as in any other part of the kingdom, and realm, and dominion of the sovereign. The decision in The Saxonia (1) is not to the contrary. The statute, in the part of it in question, is in express terms confined to British ships, that is to say, to ships owned to a given extent by British subjects. In America there is the great authority of Mr. Justice Story. In the brig Ann (2), the case was that by statute a certain embargo was laid on all ships and vessels in the ports and places within the limits and jurisdiction of the United States, that is to say, an embargo against their sailing out of or away from such limits.
The Ann had arrived from Alexandria in Columbia off the port of Newburyport. She anchored between two and three miles from Newburyport bar, which, that is to say, the bar, as the case states, is the limit of the port of Newburyport, and about the same distance from the neighbouring land. She afterwards sailed for Jamaica. The question made was whether, by sailing from her anchorage off Newburyport for Jamaica, she had broken a statutory embargo, which question depended on whether she was within the United States when at anchor off Newburyport. Story, J., said:
"As the Ann arrived off Newburyport, and within three miles of the shore, it is clear that she was within the acknowledged jurisdiction of the United States. All the writers upon public law agree that every nation has exclusive jurisdiction
(1) 15 Moo. P. C. 262.
(2) 1 Gallison, 62.
to the distance of a cannon shot or marine league over the waters adjacent to its shores, and this doctrine has been recognised by the Supreme Court, &c. Indeed, such waters are considered as a part of the territory of the sovereign."
It is clear that he held that, because the brig was within the territory of the United States when anchored in the open sea off Newburyport, but within three miles of the shore, and because she sailed from the territory of the United States for Jamaica, she broke the embargo, and was liable to forfeiture. In this case, as in the case of The Leda, there is a judicial decision, the foundation of which is the affirmation of the proposition, that the open sea, adjacent to a sovereign country, is, for a distance of three miles, a part of the territory of that country, and that it is so by virtue of a consent of all nations. I cited a passage from Vattel (lib. 1, c. 18, s. 205) to shew what is, in the view of the foreign jurists, the extent of the sovereign jurisdiction consequent upon the national ownership of territory. I will add the view of Marshall, C.J. In The Exchange, he says: (1)
"The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source."
There remains one more piece of evidence. It is stated in Wheaton, at p. 344, thus:
"In the negotiations which preceded the signature of the Treaty of Intervention of the 15th of July, 1840, the closing of the straits of the Dardanelles in the hands of Turkey was objected to by Russia. It was replied on the part of the British Government, that its opinion respecting the navigation of these straits by the ships of war of foreign nations rested upon a general and fundamental principle of international law." Every state is considered as having territorial jurisdiction "over the sea which washes its shores as far as three miles from low-water mark; and consequently any strait, which is bounded on both sides by the territory of the same sovereign, and which is not more than six miles wide, lies within the territorial jurisdiction of that sovereign."
And the treaty was concluded in accordance with that proposition. And as further, and to my mind the strongest of all evidence of what kind of right is recognised by all nations to be
(1) 7 Cranch, 136.
in these three miles of adjacent open sea, I cite the admitted rules as to neutrality - not merely the rights given to the adjacent state, but the duties imposed on such state. Such a duty has hitherto invariably been founded on an abuse or improper use of the territory of the neutral state. To found such duty on any other ground would be abnormal. To found it on territory is to act on the universal rule. The fact, therefore, of such duty being universally vouched in respect of the three miles of sea, is, as it seems to me, the strongest evidence that such sea is universally treated as a part of the territory of the adjacent state.
After citing this long list of authorities, I make the following observations. I have done so because it seems to me that the whole question depends entirely upon authority. There is no reason, founded on the axiomatic rules of right and wrong, why the three miles should or should not be considered as a part of the territory of the adjacent country. They may have been so treated by general consent; they might equally well have not been so treated. If they have been so treated by such consent, the authority for the alleged ownership is sufficient. The question is, whether such a general consent has in this case been proved by sufficient evidence. I have cited the assertions of a large number of writers, recognised as able writers on international law, of different countries and different periods. I have cited assertions of statesmen, and opinions of great judges, and the decisions of some judges, and the assertion made on behalf of a great government. As there is no common court of nations, and no common legislature, none of these are, in the usual sense, binding on this Court. As the opinions of the judges are manifestly founded on the opinions of the writers, I think the principal evidence is that of the writers. I have already said that, in my opinion, a general consent of recognised writers of different times and different countries to a reasonable proposition is sufficient evidence of a general consent of nations to that proposition. Such a general consent establishes the proposition as one of international law. In this case I think there is a general consent to a proposition with regard to the three miles of open sea adjacent to the shores of sovereign states. I do not think that such general consent, as to a distance of three miles, is impeached by shewing that there has been a difference
as to a claim by some with regard to a greater distance than three miles. The question is, what is the proposition to which such general consent as to the three miles is given? The dispute is whether, by the consent of all, certain limited rights are given to the adjacent country, such as a right that the waters should be treated as what is called a neutral zone, or whether the water is, by consent of all, given to the adjacent country as its territory, with all rights of territory, it being agreed by such country with all others, that all shall have a free right of navigation or way over such waters for harmless passage and some other rights. If the first be true, it is impossible, according to the reasoning of Vattel and Marshall, C.J., - which reasoning, I think, is irresistible - that it can be properly said that the adjacent country has any proprietary right in the three miles, or any dominion, or any sovereignty, or any sovereign jurisdiction. If the latter be correct, the adjacent country has the three miles, as its property, as under its dominion and sovereignty. If so, that three miles are its territorial waters, subject to its rights of property, dominion, and sovereignty. Those are all the rights, and the same rights which a nation has, or can have, over its land territory. If, then, such be its rights over the three miles of sea, that sea is as much a part of its country or territory as its land.
Considering the authorities I have cited, the terms used by them, wholly inconsistent, as it seems to me, with the idea that the adjacent country has no property, no dominion, no sovereignty, no territorial right; and considering the necessary foundation of the admitted rights and duties of the adjacent country as to neutrality, which have always been made to depend on a right and duty as to its territory, I am of opinion that it is proved that, by the law of nations, made by the tacit consent of substantially all nations, the open sea within three miles of the coast is a part of the territory of the adjacent nation, as much and as completely as if it were land a part of the territory of such nation. By the same evidence which proves this proposition, it is equally proved that every nation which possesses this water territory has agreed with all other nations that all shall have the right of free navigation to pass through such water territory, if such navigation be with an innocent or harmless intent or purpose. This right of free navigation
cannot, according to ordinary principles, be withdrawn without common consent; but it by no means derogates from the sovereign authority over all its territory of the state which has agreed to grant this liberty, or easement, or right to all the world.
Every law, recognised or specifically enacted by the sovereign authority of a state, whether therefore written or unwritten, if such law be promulgated in general terms, must, of necessity, apply to the whole territory of such state. There is nothing to limit it to a less area. Every such English law, therefore, that is to say, every enactment of English law, common or statute law, which is not confined to a less area by express words or necessary inference, is, as law, applicable to the whole territory of England in the same way, that is to say, to the water territory just as much as to the land territory. This proposition is evidently an assumed premiss in the opinions I have cited of Lord Chelmsford, Lord Wensleydale, and Sir William Erle, and in the judgments I have cited of Lord Hatherley. I think it therefore proved that the offence committed, though it was committed by a foreigner, was within the cognizance of the English criminal law, because it was committed within English territory, unless there be an exceptional privilege in favour of crimes committed on board foreign ships by foreigners, as such ships are passing through the water territory of England, and this clime was committed on board the foreign ship. Now if this exception exists, it is alleged to be proved by the same evidence, to the same effect, as the right of territory and the right of free passage or navigation have been proved. They are proved, as I have said, by a common consent, found in the common consent of the great body of recognised writers, and in the opinions or decisions of great judges of different nations. I can only say of this exception that, although there are one or two expressions by some writers which may be alleged in argument as in support of it, it is not expressed in clear terms by any one. I do not think there is really any evidence of a common assent to it. It follows that, even if the offence could properly be said to have been committed on board the foreign passing ship, still it would be an offence committed within British territory, and therefore cognizable by the British criminal law.
The next question is, whether the Central Criminal Court had
jurisdiction to administer to this offence the law of England, which was as a law applicable to it. This is a strictly municipal question, and has no regard whatever to international law. The only question is, whether the sovereign authority of England has in fact constituted a Court which, according to international law, it might properly constitute at any moment, and whether it has constituted the Central Criminal Court to be its organ to administer to such a case as this the criminal law of England. Now, taking it to be proved that the criminal law is applicable to that part of the Queen's territory which is open sea within three miles of her land, the presumption is, I apprehend, that there is some Court appointed to administer that law in that part of her territory. The first duty of the sovereign authority is to see that the law is administered. Story, in his Conflict of Laws, s. 529, says:
"Considered in an international point of view, jurisdiction, to be rightfully exercised, must be founded either upon the person being within the territory or upon the thing being within the territory," &c. Vattel, he says, lays down the true doctrine in clear terms. "The sovereignty united to domain, establishes the jurisdiction of the nation in its territories or the country which belong to it. It is its province, or that of its sovereign, to exercise justice in all places under its jurisdiction, to take cognizance of the crimes committed and the differences that arise in the country."
It is admitted that the Common Law Courts never were appointed according to the common law, and therefore never had jurisdiction by virtue of the common law to try crimes committed on the high or open seas, even though the crimes were committed by the Queen's subjects, because the commissions of the judges applied in terms only to counties, and the juries were summoned only to try cases within counties, and the high or open sea is within no county. The question is, whether the admiral had such jurisdiction. Now as to the quarrel which arose regarding prohibitions between the admiral and the common law judges, which is described in the 4th Institute, title:- (The Court of Admiralty), it is manifest that it related to contracts, pleas, and querels made or done upon a river, haven, or creek within a county. The answer of the judges so states the matter in terms. There was no dispute raised about the extent of the admiral's jurisdiction on the seas outside any county. The question of the
extent of that jurisdiction is not touched by that dispute. The statute 13 Rich. 2, c. 5, does not in any way restrict the jurisdiction of the admiral on the sea not within a county. The admirals and their deputies, it says, "shall not meddle from henceforth with anything done within the realm of England, but only with things done upon the sea." This is evidently pointed at the same dispute. It recognises the jurisdiction of the admiral in respect of things done upon the sea. The term "realm," therefore, by the context means that part of the realm which is within counties. And so 15 Rich. 2, c. 3, is a declaration against an alleged jurisdiction of the admiral "within the bodies of counties either by land or water." The exception, therefore, in that statute as to death or mayhem done in great ships, &c., applies also to such crimes committed in such ships, though they are within the body of a county. The Commentary of Lord Coke says so.
"This latter clause gives the admiral further jurisdiction in case of death and mayhem, but in all other happening within the Thames or in any other river, port, or water which are within any county of the realm, &c., by express words of this Act of Parliament, the admiral or his deputy hath now jurisdiction."
This statute therefore does not define, or restrain, or limit any jurisdiction which the admiral had of things done on the seas. And the Commentary seems to me to assume that the admiral already had jurisdiction in respect of death and mayhem done and caused on the seas. I do not, of course, mean to say that it suggests that he had jurisdiction to administer the law of England in respect of things done to which the law of England was not applicable, but it does seem to me that it assumes that he had jurisdiction to administer the law of England to everything done on the seas to which the law of England was properly applicable.
The administration of the whole law of England is assumed to be divided between the land Courts and the admiral's Court. He cites, but with a wrong reference, as acknowledging the jurisdiction of the admiral, a statute of Elizabeth in these terms:-
"All and every such of the said offences before mentioned as hereafter shall be done on the main sea, or coast of the sea being no part of the body of any county, &c."
So that, says Lord Coke, by the judgment of the whole parliament the jurisdiction of the Lord Admiral is wholly confined to
the "main sea," or "coasts of the sea being no parcel of the body of any county of this realm."
I cannot help thinking that the mention, both in the statute and the Commentary, of both the main sea "and the coasts of the sea," which latter must refer to sea no part of a county, i.e. to sea which is below low-water mark and which is open sea, is pregnant with an assumption by Lord Coke that there is a difference between the open sea, called the main sea, and the open sea on the coast. And in the case of The Admiralty (1) Lord Coke says:
"Upon which book I observe, &c. This proves directly that then the admiral had jurisdiction to adjudge things done upon the sea from whence no pais may come; and this did not begin then, but, without question, so long as there has been trade and traffic (which is the life of every land), there was marine jurisdiction to redress depredations, piracies, murders, and other offences upon the sea, &c.; and this does appear by the said Beresford, C.J., who speaketh in the voice of the Court, where he says that the King willeth that the peace be as well kept upon the sea as upon the land, and it is not possible that peace should be kept without jurisdiction of justice."
This is a strong assertion, that the jurisdiction of the sovereign authority, whatever that was, that is, to whatever it was applicable, to preserve peace, was, in respect of things done upon the sea, given to the Lord High Admiral. I think that the cases cited by Lord Hale are consistent with the supposition that those which were criminal cases were cases of piracy, and therefore that they cannot be relied on as judicial decisions of the point now in question; but still, I think that the opinion of Lord Hale himself is of great weight, and that in favour of the view that either the Admiralty or the Queen's Bench had criminal jurisdiction in respect of treasons and felonies done on those seas which were claimed to be the seas of England, and that such jurisdiction existed on the ground of the locality of the crime. If so, such jurisdiction extended to the crime by whomsoever there committed, for that is the meaning of jurisdiction by reason of locality. The charge of Sir Leoline Jenkins is unfortunately open to the remark that it is declamatory, and therefore inexact. Yet it is a statement of the law upon the very point of the jurisdiction of the Admiralty over crimes made by one of the most learned of English civilians and international lawyers. It is reported by
(1) 12 Co. Rep. 79, 80.
Curteis as an authority for, and judicial exposition of, the law. It certainly seems to me to claim for the admiral no less than all the jurisdiction over the sea as to criminal offences which the sovereign might properly exercise. It claims, no doubt, also something more. But the excess of the claim does not seem to me to derogate from the authority of the view of this great lawyer, that the King had deputed to the admiral all the administration of criminal law in respect of crimes committed on the seas which the King could properly depute.
Considering, therefore, the presumption to be in favour of the constitution of a court to administer the criminal law, which it was the first duty of the sovereign to administer, and considering that all the authorities which speak of that Court speak of its jurisdiction without any terms of restriction, I think it is proved that the admiral's court was authorized by the sovereign authority to administer the criminal law in respect of all cases happening on the seas outside of counties to which the criminal law of England might properly be applied, and therefore to all offences, by whomsoever committed, which are committed within the three miles adjacent to the coast. There are no words of restriction in the statutes through which the jurisdiction of the admiral is transferred to the Central Criminal Court. The phraseology of 9 Geo. 4, c. 31, s. 32, is of the largest capacity, and the crime of manslaughter is one mentioned at s. 9 in the Act.
It follows, therefore, in my opinion, that the Central Criminal Court has jurisdiction to try all crimes made cognizable in general terms by English law which may be committed by British subjects on any part of the sea, or which may be committed by any foreigner on board any British ship in any part of the sea, or which may be committed by any foreigner or British subject in any ship, British or foreign, on the open sea within three miles of the coast of Great Britain.
As to the question of whether the criminal offence charged in this case, namely, the offence of manslaughter, was committed on board of the foreign ship or on board of the British ship, I agree entirely with the Lord Chief Justice that it was not committed on board of either. There was no jurisdiction, therefore, given in respect of a complete offence committed locally within the British
ship. If there had been a complete offence within the foreign ship, there would have been no exemption on that ground from liability to English law. The only jurisdiction in respect of locality which arises is that which arises from the fact of the foreign ship having been within the territory of Great Britain. Because she was, I am of opinion that the Central Criminal Court had jurisdiction to try the case, and that the prisoner was legally convicted.
BRAMWELL, J.A. I am of opinion that this conviction should be quashed. The question is whether the case is within the jurisdiction of the Admiralty. The first ground on which it is said that it is, is that the matter occurred within three miles of the English shore, it being admitted as to this point that if it had occurred beyond that distance there would be no jurisdiction. As no statute has given jurisdiction on that ground it follows that the Admiralty, if it has that jurisdiction now, always has had it. Now there is no case, no doctrine, no trace of opinion by judge or writer that the Admiralty ever had a criminal jurisdiction in matters occurring within a distance of three miles which it would not have had they occurred beyond that distance.
One great argument in support of the claim of jurisdiction is, that unless it exists, British subjects might be run down or otherwise injured, within a few yards of the British shore, with impunity as far as British criminal law is concerned. The answer to which is, that even though the Crown is right on this point the same thing is true of a few yards distant from the three miles. I am not influenced, on the other hand, by the argument that an act done on a foreign ship by one foreigner on another passing within the three miles would be the subject of our criminal law if the Crown is right on this point, and that a child born in such a case would be British. It may or may not be so. But the same consequence would follow if the foreign ship were in a British port. It is true that in that case it would have sought our hospitality, and not be exercising a right of navigation. But I can see no great difference between a ship sailing inside or outside Plymouth Breakwater. If such consequences follow logically, they do not seem to me to preclude the possibility of what the
Crown contends for. I am influenced by what the Solicitor General said we ought not to be influenced by, viz. the possible consequence of our decision, or rather that which would flow from it, if in favour of the Crown on this point. The right we should claim we must concede to other countries, and so admit that whatever laws they thought fit to make bound our ships when within three miles of their shores; and as to our own shores in our remote colonies, that we were as responsible for all that took place within three miles of our shores, as if it had taken place on land. No doubt if the law is so, we ought to declare it, regardless of consequences. But if it is a measuring cast which opinion is right, I think we ought to leave it to the legislature, and not make a law ourselves with imperfect powers. On the ground, then, that no such jurisdiction as now claimed has ever been claimed before, I hold that none exists. This may be a very narrow-minded view of the matter - my excuse for it is that I believe it is right.
As to the authorities, I can only say that there is none which suggests such a criminal jurisdiction as now claimed.
There is another remark I wish to make on this head. As a rule, where the sovereign has jurisdiction there is allegiance, permanent, as subject or citizen, or temporary, as being within the territory. In such case there is a corresponding duty of protection. Do any of those exist in this case?
As to the other point, that the offence was committed on a British ship, it seems to me enough to say that the offence of manslaughter consists of an act, and its result - death. Here the act was on the Prussian ship, the result, death, was in the water. It is said, suppose there was an indictment for murder, would not the Admiralty have jurisdiction if the act was wilful, and if it had, would not a conviction for manslaughter be possible? I say, No. If the act was wilful it is done where the will intends it should take effect; aliter when it is negligent. The same argument might be used as to a murder in mid-Atlantic.
KELLY, C.B. I have had the advantage of considering with great attention the judgment to be delivered by the Lord Chief Justice of England, and I have participated in the preparation of
the judgment of the judge of the Admiralty Court, Sir Robert Phillimore, and which may, therefore, be taken to be his judgment and my own; and thus, agreeing substantially with both, it is unnecessary that I should say more than to observe expressly and emphatically that, inasmuch as it cannot be disputed, that the high seas, that is to say, all the whole seas of the world below low-water mark, are open to the whole world, and that the ships of every nation are free to navigate them, I hold that no one nation has the right to exercise criminal jurisdiction over the ships of other nations, or the subjects of other nations within such ships, navigating the high seas, that is, passing through the high seas (without casting anchor or stopping) between one foreign port and another, unless by treaty, or express agreement, or unless by some uniform, general, and long-continued usage, evidenced by the actual exercise of such jurisdiction acquiesced in by the nation or nations affected by it; whereas not one single instance of the exercise of such a jurisdiction is to be found in the history of the world from the beginning of time; and it appears to me indisputable that no authorities of any number of writers upon international law, even if they were (which they are not) express and uniform to the same effect, can take away or impose conditions upon the right to the free navigation of the high seas by all the nations of the world, or bring the people of all nations within the criminal jurisdiction of England without their assent.
The limited jurisdiction exercised within three miles, or some other space or distance, for some purposes has been established and sanctioned by a long-continued actual exercise of it by the one nation, acquiesced in by all others against or in respect of whom it has been claimed. But the right to seize and try in England for an offence committed on the high seas by a foreign commander of a foreign vessel on a foreign voyage, can, in my opinion, no more exist than the right to seize and try in England any foreigner for an act done in his own country, a foreign territory, which act may happen to constitute a criminal offence by the law of England.
LORD COLERIDGE, C.J. I have had the advantage of reading and considering the judgments which have been already delivered, and that also which will be delivered after mine by the head of
this Court. I assent without qualification to the reasoning upon the first point of my Brothers Brett and Lindley; upon the second, to the reasoning of my Brother Denman; although upon the second point I admit that I do not feel free from doubt. In an ordinary case, therefore, I should content myself with simply expressing my assent, referring to those judgments for the reasons of it; but in this case it seems fit that I should indicate shortly the train of reasoning by which this conclusion has been arrived at. I agree in thinking it clear that unless the place where the offence was committed was part of the realm of England locally, or unless the offence itself was committed on board a British ship, whether the British ship was locally within the realm of England, or without it, the conviction cannot stand.
But, first, I think the offence was committed within the realm of England; and if so, there was jurisdiction to try it. Whether there was any jurisdiction, and, if there were, what particular Court was, to exercise it, are two separate questions; and I am here concerned only with the former. Now the offence was committed much nearer to the line of low-water mark than three miles; and therefore, in my opinion, upon English territory. I pass by for the moment the question of the exact limit of the realm of England beyond low-water mark. I am of opinion that it does go beyond low-water mark; and if it does, no limit has ever been suggested which would exclude from the realm the place where this offence was committed. But for the difference of opinion upon the Bench, and for the great deference which is due to those who differ from me, I should have said it was impossible to hold that England ended with low-water mark. I do not of course forget that it is freely admitted to be within the competency of Parliament to extend the realm how far soever it pleases to extend it by enactments, at least so as to bind the tribunals of the country; and I admit equally freely that no statute has in plain terms, or by definite limits, so extended it. But, in my judgment, no Act of Parliament was required. The proposition contended for, as I understand, is that for any act of violence committed by a foreigner upon an English subject within a few feet of low-water mark, unless it happens on board a British ship, the foreigner cannot be tried, and is dispunishable. As I understand the proposition,
it follows, further, that even if the English subject be an officer of the Crown, and the violence is committed by the foreigner in resisting the English officer in the execution of duties which the penal or police laws of the country compel him to perform, laws to which it is admitted this country has for a series of years subjected her coast waters, still the consequence is the same, and the act of resistance, though resulting in the death of the officer, unless it takes place on board a British ship, cannot be made the subject of any criminal proceeding in any Court of the country where the officer has been outraged. This it is said has always been the law, and it is the law now. The argument ab inconvenienti is perhaps not one which sound logic recognises; and a startling conclusion does not always shew that the premises from which it follows are untenable. But the inconvenience here is so grave, and the conclusion so startling, as to make it reasonable, I think, to say that the burden of proof lies heavy upon those who disregard the inconvenience, and maintain the conclusion.
Now my Brothers Brett and Lindley have shewn that by a consensus of writers, without one single authority to the contrary, some portion of the coast waters of a country is considered for some purposes to belong to the country the coasts of which they wash. I concur in thinking that the discrepancies to be found in these writers as to the precise extent of the coast waters which belong to a country (discrepancies, after all, not serious since the time at least of Grotius) are not material in this question; because they all agree in the principle that the waters, to some point beyond low-water mark, belong to the respective countries, on grounds of sense if not of necessity, belong to them as territory or sovereignty, in property, exclusively, so that the authority of France or Spain, of Holland or England, is the only authority recognised over the coast waters which adjoin these countries. This is established as solidly as, by the very nature of the case, any proposition of international law can be. Strictly speaking, international law is an inexact expression, and it is apt to mislead if its inexactness is not kept in mind. Law implies a law-giver, and a tribunal capable of enforcing it and coercing its transgressors. But there is no common law-giver to sovereign states; and no tribunal has the power to bind them by decrees or coerce them if they transgress.
The law of nations is that collection of usages which civilized states have agreed to observe in their dealings with one another. What these usages are, whether a particular one has or has not been agreed to, must be matter of evidence. Treaties and acts of state are but evidence of the agreement of nations, and do not in this country at least per se bind the tribunals. Neither, certainly, does a consensus of jurists; but it is evidence of the agreement of nations on international points; and on such points, when they arise, the English Courts give effect, as part of English law, to such agreement.
Regarding jurists, then, in the light of witnesses, it is their competency rather than their ability which most concerns us. We find a number of men of education, of many different nations, most of them quite uninterested in maintaining any particular thesis as to the matter now in question, agreeing generally for nearly three centuries in the proposition that the territory of a maritime country extends beyond low-water mark. I can hardly myself conceive stronger evidence to shew that, as far as it depends on the agreement of nations, the territory of maritime countries does so extend. For myself I must add that, besides their competency, I have the greatest respect and admiration for the character and abilities of such of these writers as I am personally familiar with. It is not difficult in the works of a voluminous writer, or indeed of any writer, nay, even in the reported judgments of great judges, to find statements exaggerated or untenable, beliefs which lapse of time has shewn to be unwise, prejudices which must always have been foolish. But these things do not detract from the just authority of distinguished men, and, if the matter were to be determined for the first time, I should not hesitate to hold that civilized nations had agreed to this prolongation of the territory of maritime states, upon the authority of the writers who have been cited in this argument as laying down the affirmative of this proposition.
But it is not now to be done for the first time. For from the two judgments to which I have already had occasion to refer it sufficiently appears that a number of English judges, of the very highest authority, have themselves accepted and acted upon the authority of these jurists. Lord Talbot, Lord Hardwicke, Lord
Mansfield, Lord Stowell, and Dr. Lushington, form altogether a body of judges sufficient to support the authority of the writers upon whom they relied.
Furthermore, it has been shewn that English judges have held repeatedly that these coast waters are portions of the realm. It is true that this particular point does not seem ever distinctly to have arisen. But Lord Coke, Lord Stowell, Dr. Lushington, Lord Hatherley, L.C., Erle, C.J., and Lord Wensleydale (and the catalogue might be largely extended) have all, not hastily, but in writing, in prepared and deliberate judgments, as part of the reasoning necessary to support their conclusions, used language, some of them repeatedly, which I am unable to construe, except as asserting, on the part of these eminent persons, that the realm of England, the territory of England, the property of the State and Crown of England over the water and the land beneath it, extends at least so far beyond the line of low water on the English coast as to include the place where this offence was committed. I should only waste time if I were to go through again the cases which my learned Brothers have so fully and so accurately examined. It is, I presume, competent for the Court to overrule those cases; but at least it must be admitted that they decide as much as this. It is, perhaps, referring to weaker authorities in order to support stronger ones; but I will add that the English and American text writers, and two at least of the most eminent American judges, Marshall and Story, have held the same thing.
Further - at least in one remarkable instance - the British Parliament has declared and enacted this to be the law. In the present reign two questions arose between Her Majesty and the Prince of Wales as to the property in minerals below high-water mark around the coast of Cornwall. The first question was as to the property in minerals between high and low-water mark around the coasts of that county; and as to the property in minerals below low-water mark won by an extension of workings begun above low-water mark. This was referred by Lord Chancellor Cranworth on the part of Her Majesty, and by Lord Kingsdown, the then Chancellor of the Duchy, on the part of the Prince of Wales, to the arbitration of Sir John Patteson. His decision led to the passing of an Act of Parliament, and a further question as to the minerals
below low-water mark was referred by Lord Selborne, then Sir Roundell Palmer, the Queen's Attorney General, and Sir William Alexander, the Attorney General to the Prince of Wales, to the arbitration of Sir John Coleridge. All the proceedings in both references were in writing; and by the kindness of Viscount Portman, the present Lord Warden of the Stannaries, I have been furnished with copies of the whole of them. As might be expected from the known characters of the persons who drew and settled all the statements in both cases, the greatest learning and ability were displayed in them; most of the authorities cited before us are cited in the arguments on behalf of the Crown and the Prince of Wales, and some others of considerable importance not cited to us are cited there. The whole argument on the part of the Crown was founded on the proposition that the fundus maris below low-water mark, and therefore beyond the limits of the county of Cornwall, belonged in property to the Crown. The Prince was in possession of the disputed mines; he had worked them from land undoubtedly his own; and, therefore, unless the Crown had a right of property in the bed of the sea, not as first occupier - for the Prince was first occupier, and was in occupation, - the Crown must have failed. The argument on behalf of the Duchy was twofold: first, that all which adjoined and was connected with the county of Cornwall passed to the Dukes of Cornwall under the terms of the original grant to them at the time of the creation of the Duchy; and, therefore, that even if the bed of the sea elsewhere belonged to the Crown, it had passed from the Crown to the Duke in the seas adjacent to Cornwall; secondly, that the bed of the sea did not belong to the Crown, and that the Prince was entitled, as first occupier, to the mines thereunder. I pass by, as not relevant to the present inquiry, the argument as to the property in the soil between high and low water, and I omit Sir John Patteson's decision on that point in favour of the Duchy as not material. On the second point he thus expressed himself:-
"I am of opinion, and so decide, that the right to the minerals below low-water mark remains and is vested in the Crown, although those minerals may be won by workings commenced above low-water mark and extended below it."
And he recommended the passing of an Act of Parliament to
give practical effect to his decision, so far as it was in favour of the Crown.
The Act of Parliament accordingly was passed, the 21 & 22 Vict. c. 109, a public Act. By s. 2 it is not merely enacted, but declared and enacted as follows:-
"All miller and minerals lying below low-water mark under the open sea adjacent to but not being, part of the County of Cornwall are, as between the Queen's Majesty, in right of her Crown, on the one hand, and His Royal Highness Albert Edward Prince of Wales and Duke of Cornwall, in right of his Duchy of Cornwall, on the other hand, vested in Her Majesty the Queen in right of her Crown as part of the soil and territorial possessions of the Crown."
A subsequent question was raised as to minerals in the beds of estuaries below low-water mark, but, so to speak, intra fauces Cornubi¾; and this question, which arose after the death of Sir John Patteson, was referred for decision to Sir John Coleridge. This decision was substantially in favour of the Prince, and the arguments in the former case were repeated before him; but as he had to decide the matter after the passing of the Act of Parliament, and in truth as to the construction to be placed upon its clauses, it is not material to refer in detail to the words of his judgment and award.
It is true, that the particular question between Her Majesty and the Prince of Wales, which arose in respect of the bed of the sea adjacent to the county of Cornwall, could not, as far as I know, arise in respect of the bed of the sea adjacent to any other county. But it might well arise between Her Majesty and private persons all round the British Islands. The sovereign stands in no more peculiar relation to Cornwall than she does to Kent. There is no reason, legal or otherwise, as far as I am aware, why the bed of the sea "adjacent to but not part of the county of Cornwall" should be, and why the bed of the sea adjacent to, but not part of the county of Kent, where this offence was committed, should not be, "part of the soil and territorial possession of the Crown" in the words of the Act of Parliament. Parliament did but apply to a particular case, in order to settle a question between the two highest persons in the state, that which is and always has been the law of this country. We have therefore it seems the express
and definite authority of Parliament for the proposition that the realm does not end with low-water mark, but that the open sea and the bed of it are part of the realm and of the territory of the sovereign. If so it follows that British law is supreme over it, and that the law must be administered by some tribunal. It cannot, for the reasons assigned by my Brother Brett, be administered by the judges of oyer and terminer; it can be, and always could be, by the Admiralty, and if by the Admiralty, then by the Central Criminal Court.
I do not feel much pressed by the undoubted fact that no record can be found of the exercise of this particular authority. Cases of collision are not often the subject of criminal inquiry, they do not often happen within local limits so as to raise this particular question. If they were cases of wanton violence they would in former days, I conceive, have been very summarily disposed of. Sometimes, no doubt, the fact that a jurisdiction has never been exercised is a strong argument against the existence of the jurisdiction; but the force of this argument varies with circumstances; and though undoubtedly it is a matter to be considered, it does not, I think, in this case outweigh the arguments which establish its existence. On the whole, therefore, I am of opinion on the first point that the conviction is right.
I am of the same opinion, though with some doubt, upon the second, i.e., that the offence was committed on board an English ship. If this had been murder it would, as I understand the law, be clear that the offence was so committed. I need cite no further authority than the case of Reg. v. Armstrong (1), decided in 1875 by my lamented Brother Archibald. I think I follow, and I am sure I feel the weight of, the reasoning which has brought the Lord Chief Justice to the opposite conclusion on this point. But on the whole, though not without some hesitation, I concur in the reasoning of my Brother Denman, and I think the same rule should apply in manslaughter which applies in murder. And on the second point, therefore, I am of opinion that the conviction was right and should be affirmed.
(1) 13 Cox, Cr. C. 184.
COCKBURN, C.J. The defendant has been convicted of the offence of manslaughter on the high seas, on a trial had at the Central Criminal Court, under the statute 4 & 5 Wm. 4, c. 36, s. 22, which empowers the judges sitting there to hear and determine offences "committed on the high seas and other places within the jurisdiction of the Admiralty of England." The facts were admittedly such as to warrant the conviction, if there was jurisdiction to try the defendant as amenable to English law. Being in command of a steamship, the Franconia, and having occasion to pass the Strathclyde, a British ship, the defendant brought his ship unnecessarily close to the latter, and then, by negligence in steering, ran into the Strathclyde and broke a hole in her, in consequence of which she filled with water and sank, when the deceased, whose death the accused is charged with having occasioned, being on board the Strathclyde, was drowned.
That the negligence of which the accused was thus guilty, having resulted in the death of the deceased, amounts according to English law to manslaughter can admit of no doubt. The question is, whether the accused is amenable to our law, and whether there was jurisdiction to try him?
The legality of the conviction is contested, on the ground that the accused is a foreigner; that the Franconia, the ship he commanded, was a foreign vessel, sailing from a foreign port, bound on a foreign voyage; that the alleged offence was committed on the high seas. Under these circumstances, it is contended that the accused, though he may be amenable to the law of his own country, is not capable of being tried and punished by the law of England.
The facts on which this defence is based are not capable of being disputed; but a twofold answer is given on the part of the prosecution:- 1st. That, although the occurrence on which the charge is founded took place on the high seas in this sense, that the place in which it happened was not within the body of a county, it occurred within three miles of the English coast; that, by the law of nations, the sea, for a space of three miles from the coast, is part of the territory of the country to which the coast belongs; that, consequently, the Franconia, at the time the offence was committed, was in English waters, and those on board were therefore
subject to English law. 2ndly. That, although the negligence of which the accused was guilty occurred on board a foreign vessel, the death occasioned by such negligence took place on board a British vessel; and that, as a British vessel is in point of law to be considered British territory, the offence, having been consummated by the death of the deceased in a British ship, must be considered as having been committed on British territory.
I reserve for future consideration the arguments thus advanced on the part of the Crown, and proceed, in the first instance, to consider the general question - how far, independently of them, the accused, having been at the time the offence was committed a foreign subject, in a foreign ship, on a foreign voyage, on the high seas, is amenable to the law of England.
Now, no proposition of law can be more incontestable or more universally admitted than that, according to the general law of nations, a foreigner, though criminally responsible to the law of a nation not his own for acts done by him while within the limits of its territory, cannot be made responsible to its law for acts done beyond such limits:-
"Leges cujusque imperii," says Huber de Conflictu legum, citing Dig. de jurisdictione, l. ult., "Vim habent intra terminos ejusdem reipublic¾, omnesque ei subjectos obligant, nec ultra." "Extra territorium jus dicenti impune non paretur" is an old and well-established maxim. "No sovereignty," says Story (Conflict of Laws, s. 539), "can extend its process beyond its own territorial limits, to subject either persons or property to its judicial decisions. Every exertion of authority of this sort beyond this limit is a mere nullity, and incapable of binding such persons or property in any other tribunals." "The power of this country," says Dr. Lushington in the case of The Zollverein (1), "is to legislate for its subjects all the world over, and as to foreigners within its jurisdiction, but no further."
This rule must, however, be taken subject to this qualification, namely, that if the legislature of a particular country should think fit by express enactment to render foreigners subject to its law with reference to offences committed beyond the limits of its territory, it would be incumbent on the Courts of such country to give effect to such enactment, leaving it to the state to settle the question of international law with the governments of other nations.
(1) 1 Sw. Adm. 96.
The question of express legislation will be dealt with hereafter. For the present I am dealing with the subject with reference to the general law alone.
To the general rule to which I have referred there is one exception - that of a foreigner on board the ship of another nation. But the exception is apparent rather than real; for by the received law of every nation a ship on the high seas carries its nationality and the law of its own nation with it, and in this respect has been likened to a floating portion of the national territory. All on board, therefore, whether subjects or foreigners, are bound to obey the law of the country to which the ship belongs, as though they were actually on its territory on land, and are liable to the penalties of that law for any offence committed against it.
But they are liable to that law alone. On board a foreign ship on the high seas, the foreigner is liable to the law of the foreign ship only. It is only when a foreign ship comes into the ports or waters of another state that the ship and those on board become subject to the local law. These are the established rules of the law of nations. They have been adopted into our own municipal law, and must be taken to form part of it.
According to the general law, therefore, a foreigner who is not residing permanently or temporarily in British territory, or on board a British ship, cannot be held responsible for an infraction of the law of this country. Unless, therefore, the accused, Keyn, at the time the offence of which he has been convicted was committed, was on British territory or on board a British ship, he could not be properly brought to trial under English law, in the absence of express legislation.
Moreover, while the accused is thus on general principles exempt from being subject to our criminal law in respect of an offence committed on a foreign ship on the high seas, if we proceed to look at the matter in a more technical point of view, with reference to jurisdiction, equal difficulties will be found to stand in the way of the prosecution.
The indictment on which the defendant has been convicted alleges the offence to have been committed on the high seas, and it is admitted that the place in which it occurred cannot in any
sense be said to have been within the body of a county. The case, therefore, if the indictment can be maintained, must necessarily fall within what would formerly have been the jurisdiction of the admiral - a jurisdiction now transferred, but transferred unaltered, to the common-law Courts. It becomes, therefore, necessary to inquire more particularly into the character and extent of the Admiralty jurisdiction.
From the earliest period of our legal history, the cognizance of offences committed on the high seas had been left to the jurisdiction of the admiral. And the reason is obvious. By the old common law of England, every offence was triable in the county only in which it had been committed, as from that county alone the "pais," as it was termed - in other words, the jurors by whom the fact was to be ascertained - could come. But only so much of the land of the outer coast as was uncovered by the sea was held to be within the body of the adjoining county. If an offence was committed in a bay, gulf, or estuary, inter fauces terr¾, the common law could deal with it, because the parts of the sea so circumstanced were held to be within the body of the adjacent county or counties; but, along the coast, on the external sea, the jurisdiction of the common law extended no further than to low-water mark. But, as from the time when ships began to navigate the sea, offences would be committed on it which required to be repressed and punished, while the common law jurisdiction and procedure was inapplicable to such offences, as not having been committed within the boundary of any county, the authority of the Crown in the administration of justice in respect of such crimes was left to the admiral, as exercising the authority of the sovereign upon the seas.
Even the office of coroner could not, for the like reason, be executed by the coroner of a county in respect of matters arising on the sea. An inquest could not be held by one of these officers on a body found on the sea. Such jurisdiction could only be exercised by a coroner appointed by the admiral.
A similar difficulty existed as to wrongs done on the sea, and in respect of which the party wronged was entitled to redress by civil action, till the anomalous device of a fictitious venue, within
the jurisdiction of the common-law Courts, and which those Courts did not allow to be disputed, was resorted to, and so the power of trying such actions was assumed.
It is true that in Hale's Pleas of the Crown (vol. ii. p. 12) it is stated that prior to the 35 Edw. III. the Court of King's Bench
"Most certainly had, usually, cognizance of treasons and felonies done on the narrow seas, though out of the boundaries of counties, and it was presented and tried by men of the adjacent counties; so that," says the writer, "even in these cases of felonies or treasons committed on the narrow seas, the King's Bench, or special commissions of oyer and terminer, secundum legem et consuetudinem regni angli¾, had a concurrent jurisdiction with the Court of Admiralty."
In proof of this eight cases are cited, of which one had occurred in the time of Edward I., four in that of Edward II., and three in that of Edward III.
The original editor of Hale's work has given us in a note from the records the details of the cases referred to by the author, from which it appears that of these eight cases, four were in the nature of a civil remedy, and, as it would seem, were properly within the jurisdiction of the Court of King's Bench; four were cases of piracy, which may have been dealt with on the principle that piracy is triable anywhere and everywhere. Moreover, as to two of the latter cases, it is doubtful whether the offence was not committed within the body of a county, and therefore triable at common law.
The earliest case, in the 34 Edw. I. was of a peculiar character. A ship of certain merchants of Lincoln, richly laden, had been plundered by subjects of the Count of Hainault, in Zealand, for which satisfaction had been demanded of the count in vain. Therefore a writ was directed, at the suit of the merchants, to the bailiffs of Lynn, to seize all the goods of the merchants of Hainault at Lynn, and keep them till the Lincoln merchants had received satisfaction, or till further order. The bailiffs returned nulla bona infra ballivam suam. One of the Lincoln merchants traversed the return, alleging that the bailiffs had levied 31l. 17s. of the Hainault merchants, but had re-delivered the same without warrant, which appearing, the bailiffs were ordered to pay that amount, or appear coram rege in octavis trinitatis ubicunque, &c. Subsequently, the Count of Hainault, by his messengers, acknowledged
in the English Parliament that he was indebted to the English merchants in the sum of 954l., of which 74l. was allotted to Walter Le Ken, one of them; whereupon a writ was directed at his suit to the sheriffs to levy that amount of certain Hainault merchants at Yarmouth, arrested by consent of the said count, and to bring the money into Chancery to satisfy the said Le Ken, which was accordingly done. It is plain that all this was in the nature of a civil remedy, and as the case, not having happened on the high seas, was not within the jurisdiction of the admiral, and the remedy was by civil process within the realm, the matter appears to have been rightly within the jurisdiction of the King's Bench.
Another case was a civil action brought by the mayor and corporation of Grimsby against certain persons for loading and unloading their ships at a place within four leagues of Grimsby, instead of bringing them to Grimsby, whereby the corporation had lost their customs and dues. This, too, was a matter of which the Court might well take cognizance. In a third instance, precepts had been issued, in the 19 Edw. II., to the sheriffs of several counties, to attach certain persons for having, during a truce between the King and the Count of Flanders, plundered, with armed force, a Flemish ship in the waters of Tyne, and for having taken goods to the value of 2000 marks, and divided the spoil among themselves. Several persons were thereupon arrested by the sheriff of Northumberland, and brought coram rege, where they were impleaded by the King's attorney for having part of the goods. "Et dicunt quod nihil ceperunt, &c., et de hoc ponunt se super patriam." Whereupon the King's attorney joined issue with them, and the Court bailed them de die in diem quousque, &c. It is plain that here again we have only a proceeding in the nature of civil process to satisfy a claim for compensation in damages for a pecuniary loss. Moreover, as the wrong complained of had occurred in the waters of Tyne, it must have been committed inter fauces terr¾, and therefore was within the jurisdiction of the common law.
In the 26 Edw. III., John Solandere impleaded several persons de placito transgressionis, per billam, for entering his ship, super costerum maris de North'lenn, in Norfolk, beating and wounding
him, and plundering the ship, which they then left in a helpless condition, by reason of which it was lost; and he recovered 360 marks against them for the damages sustained thereby. Here, again, from the nature of the suit and the recovery of damages, it is plain that this, too, was in the nature of a civil proceeding. I have not succeeded in making out what place is meant by "North'lenn." But as it is stated to have been on the coast, the wrongs complained of may have occurred inter fauces terr¾.
Of the remaining four cases, two were clearly cases of piracy, which may have been deemed common ground. But in neither of these cases does the proceeding appear to have originated in the Court of King's Bench. In one of them, in 18 Edw. II., several persons had been indicted for piracy before the admiral, and the indictment having been returned into Chancery, a writ had been issued to the sheriff of Gloucestershire to attach the said persons, and, audit querel, to do justice to the merchants whose goods had been plundered, detaining, nevertheless, the offenders in prison till delivered in course of law. The sheriff neglecting to execute the writ, the matter was brought, it does not appear how, into the King's Bench. "Processus totius negotii pr¾dicti," says the record, "was brought coram rege;" after which, it appearing that the offenders had been indicted at common law as well as before the admiral, a capias issued to the sheriff to bring them coram rege ubicumque, &c., to answer for the said crime. The statement of the case is very confused, nor does it appear what further became of it.
In another case, which occurred in 25 Edw. III., an indictment for piracy had been found, "coram vice comite et custodibus pacis in comitatu Linc.;" and the indictment having been removed into the King's Bench, ad respondendum, it appeared that the defendants had been already tried in the county of Lincoln, and acquitted. Judgment was therefore given "ut eant quieti."
In the two remaining cases, it is by no means clear that the offence was not committed within the body of a county. In the 8 Edw. II. a mandate is said to have issued to the Constable of Dover and Warden of the Cinque Ports to take into custody several persons for entering, vi et armis, a ship from Flanders,
laden with cloth, binding the merchants, and taking the cloth; and to have them coram rege, ad respondendum. But it is not said that the offence had been committed on the high seas. It may have taken place inter fauces terr¾, or even in harbour.
In the 27 Edw. III. the coroner of London delivered coram rege,
"Quasdam cognitiones coram ipso factas, by several persons who confessed that they had feloniously entered a ship near Feversham, thrown the men in it into the sea, plundered it, and then sunk it; that they had then gone from Waxering, usque ad forlongg de Tenet - which from another part of the case appears to have been an old form of Thanet - and having feloniously entered another ship there, stripped it of what goods were on board, and killed all that wore on it except two women, fornicaverunt cum illis, and then flung them into the sea." After which, "Four of these criminals being brought coram rege, and being asked what they had to say why judgment should not pass against them, said nothing, whereupon they were condemned to be drawn and hanged."
Upon what ground this offence was held to be within the jurisdiction of the Court of King's Bench, is not stated. Possibly the place where the offence was committed may have been considered to be within the fauces terr¾, Feversham being situated on a navigable creek, a mile from the sea; in which case the Court would have had jurisdiction; murder, robbery, and rape, not being less within the common law, because committed on the sea, if occurring within the body of a county. But the greater probability is that the offence was treated as piracy. Indeed, that this must have been so seems clear from the fact that the criminals were condemned to be drawn as well as hanged, this having been, at that time, the punishment for piracy, as a species of treason in levying war against the King's subjects or allies; as appears from the case mentioned by Lord Coke, in which certain Normans and Englishmen having been engaged in common in piracy, the Normans, then owing no allegiance to the crown of England, were simply sentenced to be hanged, as guilty of piracy, the Englishmen to be drawn and hanged, as guilty of treason. For murder, robbery, or rape, the punishment was hanging only.
At all events, it appears that the Court of King's Bench, in dealing with cases occurring below low-water mark, and therefore dehors the limits of any county, was deemed to be exceeding its lawful authority. For Lord Hale informs us that "this jurisdiction
of the Common Law Courts in cases of felonies and treasons, and other crimes committed upon the seas, was interrupted by a special order of the King and his council, in the 35 Edw. III., and by a supersedeas issued shortly after;" "since which," says Lord Hale, "I have not observed that the King's Bench or Courts of common law have proceeded criminally in cases of crimes of this nature committed on the high sea." The probability is that the exercise of this jurisdiction was looked upon as a usurpation of authority, which it was thought necessary to restrain. Certain it is that from that time to this no such jurisdiction has ever been exercised or claimed by the Courts of common law. There cannot possibly be a question that, in respect of any offences committed on the sea, out of the body of a county, the jurisdiction was formerly exclusively in the Admiralty, and is at the present time, in the courts to which the Admiralty jurisdiction has been transferred. Upon this all authorities on criminal law are entirely agreed.
But if Edward III. and his council were careful to prevent the Courts of common law from encroaching on the province of the admiral, it appears from the statutes of Richard II. that they were equally so in preventing any usurpation of authority by the admiral on the domain of the common law.
In the reign of the latter king arose the dispute as to the jurisdiction of the admiral, who, not content with the authority exercised in the previous reign, now asserted a claim to jurisdiction in respect of matters arising not only on the sea, but in the inland tidal waters of England, as also in respect of matters of contract though made on the land, if at all connected with the sea, a usurpation which gave rise to complaints on the part of the Commons, the procedure in the Courts of Admiralty having been that of the civil law, which appears to have been distasteful to the people. Accordingly, by the statute 13 Ric. 2, c. 5, it is provided -
"That the admirals and their deputies shall not meddle from henceforth with anything done within the realm of England, but only with things done upon the sea, according to that which hath been duly used in the time of the noble King Edward, grandfather of King Richard the Second."
Two years later it was thought necessary still more expressly to
declare the limits of the admiral's jurisdiction. Accordingly, by statute 15 Ric. 2, c. 3, it was enacted -
"That the Court of the Admirall hath no manner of conusance, power, nor jurisdiction of any manner of contract, plea, or querell, or of any other thing done, or rising within the bodies of the counties, either by land or by water, and also of wrecks of the sea; but all such manner of contracts, pleas, and querels, and all other things rising within the bodies of the counties, as well by land as by water, as is aforesaid, and also wrecks of the sea, shall be tried, determined, discussed, and remedied by the laws of the land, and not before, nor by the Admirall or his Lieutenant, in no manner."
At the same time it was deemed expedient to give the admiral concurrent jurisdiction with the common law, in respect of murder and mayhem committed in ships at the mouths of great rivers. The statute accordingly proceeds:-
"Neverthelesse of the death of a man, and of a mayhem done in great ships, being and hovering in the main stream of the great rivers, only beneath the points of the same rivers, and in no other place of the same rivers, the Admirall shall have conusance."
Upon this footing the criminal law has remained ever since. Whatever of the sea lies within the body of a county is within the jurisdiction of the common law. Whatever does not, belonged formerly to that of the Admiralty, and now belongs to the Courts to which the jurisdiction of the admiral has been transferred by statute; while in the estuaries or mouths of great rivers, below the bridges, in the matter of murder and mayhem, the jurisdiction is concurrent. On the shore of the outer sea the body of the county extends so far as the land is uncovered by water. And so rigorous has been the line of demarcation between the two jurisdictions, that, as regards the shore between high and low-water mark, the jurisdiction has been divided between the Admiralty and the common law according to the state of the tide. Such was the law in the time of Lord Coke; and as regard offences such it is still. As regards civil matters the jurisdiction of the admiral has been extended to inland seas by statute 3 & 4 Vict. c. 65.
We must, therefore, deal with this case as one which would have been under the ancient jurisdiction of the admiral. But the jurisdiction of the admiral, though largely asserted in theory, was never, so far as I am aware - except in the case of piracy, which, as the pirate was considered the communis hostis of mankind, was triable
anywhere - exercised, or attempted to be exercised, in respect of offences, over other than English ships. No instance of any such exercise, or attempted exercise, after every possible search has been made, has been brought to our notice. Nor, for the reason already given, could such jurisdiction be so exercised consistently with legal principle. And though, by 25 Hen. 8, c. 15, the trial of offences previously within the jurisdiction of the admiral was transferred to commissioners to be appointed by commission from the King, under which the trial was to be held in such county as the commission should direct, and, "according to the common course of the laws of the realm, used for such offences when done upon the land within the realm," it is, I think, beyond dispute, that all that was effected by this statute or by those that have succeeded it, as regards jurisdiction, was a transfer of the criminal jurisdiction of the admiral, such as it was, to Courts proceeding according to the ordinary procedure of the common law - not an extension of it. The statute created no new offence, effected no extension of jurisdiction. It simply transferred the jurisdiction of the admiral, talem qualem, to the Common Law Courts, to be exercised according to the procedure of the common law. As to this the received authorities are, as I shall have occasion more fully to shew hereafter, entirely agreed. The Central Criminal Court Act, 4 & 5 Wm. 4, c. 36, which gives power to try "offences committed on the high seas and other places within the jurisdiction of the Admiralty of England," has, obviously, carried the matter no further. If the admiral had not jurisdiction as to offences committed on foreign ships, the commissioners, to whom the jurisdiction was transferred by the statute, must be equally without it.
Any doubt which could possibly exist as to the want of jurisdiction of the admiral, in respect of offences committed on the high seas on other than British ships, is conclusively disposed of by the decision of the judges in the cases of Reg. v. Serva and Others (1), and of Reg. v. Lewis. (2) I fully admit that these cases will not apply to the present case if the second contention on the part of the Crown should succeed, and the offence should be herd to have been committed on board a British ship. At present I am
(1) 1 Den. Cr. C. 104.
(2) 1 Dears. & B. Cr. C. 182.
dealing with the subject on the assumption that that position, to which I shall advert more fully hereafter, cannot prevail.
In Reg. v. Serva (1), the prisoners had been tried for murder under an Admiralty Commission, and had been found guilty. The facts were shortly these. A Brazilian vessel, named the Felicidade, had been taken by H.M. ship Wasp, off the coast of Africa, as being fitted out and intended for the slave trade. A prize crew having been put on board the captured ship, under the command of a lieutenant, the latter was ordered to proceed in chase of another Brazilian vessel, the Echo, then just sighted from the Wasp, and supposed to be carrying slaves. This vessel having been overtaken and captured, and being found to contain a cargo of slaves, possession of her was taken, and a midshipman, with eight men, was put on board. The prisoner, Serva, who had been the captain of the Echo, with twelve other Brazilians, rose upon the Englishmen, and succeeded in killing them all. On the trial, it was contended for the prisoners, first, that certain formalities required by the existing treaties for the capture of vessels engaged in the slave trade not having been complied with, the capture of both vessels had been illegal; and that, consequently, the detention of Serva and his associates had been unlawful; for which reason, their act in killing those who were forcibly detaining them, though it might be manslaughter, would not amount to murder. Secondly, that the Echo, having been illegally captured and taken possession of, was not thereby converted into a British ship, but retained her original nationality; for which reason, as the jurisdiction of the Admiralty was confined to offences committed on board British ships, there was an absence of jurisdiction in respect of the offence for which the accused were on their trial. These points having been reserved by the judge on the trial for the consideration of the judges, eleven out of thirteen judges, before whom the case was argued, were of opinion that the conviction was wrong, on the ground that it had not been shewn that the possession of the vessel was lawful, without which there could be no jurisdiction in a British court to try the prisoners for an offence committed on board of it. The two dissentient judges, while admitting the principle that, to give jurisdiction to a British Court, it was necessary that the crime
(1) 1 Den. Cr. C. 104.
should have been committed on board a British ship, differed only in this, that they thought that the ship was at the time in the lawful possession of the Queen's officers, and that, consequently, an act committed on board of it must be taken to have been committed on board a ship of Her Majesty. On the general principle of law as to jurisdiction, the judges were unanimous. The case is, therefore, decisive on the point that by the law of England an English Court of justice has no authority to try a foreigner accused of having committed an offence on a foreign vessel not within British waters.
In Reg. v. Lewis (1) the prisoner was tried for manslaughter. He and the deceased were foreigners, and the injuries of which the deceased had died were inflicted on board a foreign ship on the high seas, but the death took place at Liverpool. The prisoner was convicted, but, on a case reserved, the conviction was held to be wrong. It was sought to be upheld under 9 Geo. 4, c. 31, s. 8, which provides that, if a person has been feloniously stricken on the high sea and dies on the land, the offence may be tried in the county in which the death shall happen. But it was held that the statute could not apply to foreigners in respect of acts done out of British territory.
In the course of the discussion, Coleridge, J., says:
"Before coming to the construction of the statute, we must consider whether we have any right to legislate here for foreigners on board ships upon the high seas. How can we say whether one foreigner wounding another, on the high seas, commits a felony? Suppose by the law of a state the murder of a subject was not a capital offence, should we have power to say that, when committed on the high seas by a foreigner, we had the right to make it capital?"
And Willes, J., in delivering the judgment of the Court, said:
"The 8th section of 9 Geo. 4, c. 31, was obviously intended to prevent a defeat of justice which, without it, might have arisen, from the difficulty of trial, in cases of homicide where the death occurs in a different place from that at which the blow causing it was given, and that section ought not, therefore, to be construed as making a homicide cognizable in the courts of this country by reason only of the death occurring here, unless it would have been so cognizable in case the death had ensued at the place where the blow was given, which the homicide, in this particular case, would have been by the 7th section, if the offender had been a British subject, but not otherwise. In the present case the injury which caused the death was inflicted by one foreigner upon another on board a foreign
(1) 1 Dears. & B. Cr. C. 182.
vessel upon the high seas; and, consequently, if death had then and there followed, no offence cognizable by the law of this country would have taken place. The 8th section of 9 Geo. 4, c. 31, therefore, is inapplicable, and, unless it be applicable, the conviction cannot be sustained. It must, therefore, be quashed, and the prisoner discharged."
In a series of important cases in the American courts, the decisions have proceeded on the same principle. In Palmer's Case (1), and in the cases of United States v. Howard (2), United States v. Klintock (3), United States v. Kessler (4), and United States v. Holmes, referred to in the latter case, the question was, whether an Act of Congress, enacting that "any person committing the crime of robbery, in or upon any ship or vessel on the high seas, should be guilty of piracy," applied to robbery committed on other than American ships, and it was uniformly held that it did not, even though the offence had been committed by an American citizen.
In the last of these cases it was contended that the offence, having been committed within a marine league of the American shore, was within the Act of Congress; but Mr. Justice Hopkinson, in giving judgment, says:
"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
(1) 3 Wheat. 610.
(2) 3 Wash. C. C. R. 340.
(3) 5 Wheat. 144.
(4) Bald. 15.
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."
These decisions are conclusive in favour of the accused in the present case, unless the contention, on the part of the Crown, either that the place at which the occurrence, out of which the present inquiry has arisen, was, though on the high seas, yet within British waters, by reason of its having been within three miles of the English shore; or that, the death of the deceased having occurred in a British ship, the offence must be taken to have been there committed, so as in either case to give jurisdiction to the Admiralty, or the Courts substituted for it, shall prevail. These questions it becomes, therefore, necessary carefully to consider.
On entering on the first, it is material to have a clear conception of what the matter in controversy is. The jurisdiction of the admiral, however largely asserted in theory in ancient times, being abandoned as untenable, it becomes necessary for the counsel for the Crown to have recourse to a doctrine of comparatively modern growth, namely, that a belt of sea, to a distance of three miles from the coast, though so far a portion of the high seas as to be still within the jurisdiction of the admiral, is part of the territory of the realm, so as to make a foreigner in a foreign ship, within such belt, though on a voyage to a foreign port, subject to our law, which it is clear he would not be on the high sea beyond such limit. It is necessary to keep the old assertion of jurisdiction and that of to-day essentially distinct, and it should be borne in mind that it is because all proof of the actual exercise of any jurisdiction by the admiral over foreigners in the narrow seas totally fails, that it becomes necessary to give to the three-mile zone the character of territory in order to make good the assertion of jurisdiction over the foreigner therein.
Now, it may be asserted without fear of contradiction that the position that the sea within a belt or zone of three miles from the shore, as distinguished from the rest of the open sea, forms part of the realm or territory of the Crown is a doctrine unknown to
the ancient law of England, and which has never yet received the sanction of an English criminal Court of justice. It is true that from an early period the kings of England, possessing more ships than their opposite neighbours, and being thence able to sweep the Channel, asserted the right of sovereignty over the narrow seas, as appears from the commissions issued in the fourteenth century, of which examples are given in the 4th Institute, in the chapter on the Court of Admiralty, and others are to be found in Selden's Mare Clausum, Book 2. At a later period still more extravagant pretensions were advanced. Selden does not scruple to assert the sovereignty of the King of England over the sea as far as the shores of Norway, in which he is upheld by Lord Hale in his treatise De jure maris: Hargrave's Law Tracts, p. 10.
In the reign of Charles II. Sir Leoline Jenkins, then the judge of the Court of Admiralty, in a charge to the grand jury at an Admiralty sessions at the Old Bailey, not only asserted the King's sovereignty within the four seas, and that it was his right and province "to keep the public peace on these seas" - that is, as Sir Leoline expounds it, "to preserve his subjects and allies in their possessions and properties upon these seas, and in all freedom and security to pass to and fro on them, upon their lawful occasions," but extended this authority and jurisdiction of the King
"To preserve the public peace and to maintain the freedom and security of navigation all the world over; so that not the utmost bound of the Atlantic Ocean, nor any corner of the Mediterranean, nor any part of the South or other seas, but that if the peace of God and the King be violated upon any of his subjects, or upon his allies or their subjects, and the offender be afterwards brought up or laid hold of in any of His Majesty's ports, such breach of the peace is to be inquired of and tried in virtue of a commission of oyer and terminer as this is, in such county, liberty, or place as His Majesty shall please to direct - so long an arm hath God by the laws given to his vicegerent, the King."
To be sure, the learned civilian, as regards these distant seas, admits that other sovereigns have a concurrent jurisdiction, which, however, he by no means concedes to them in these so-called British seas. In these the refusal by a foreign ship to strike the flag and lower the topsail to a King's ship he treats as amounting to piracy.
Venice, in like manner, laid claim to the Adriatic, Genoa to the
Ligurian Sea, Denmark to a portion of the North Sea. The Portuguese claimed to bar the ocean route to India and the Indian Seas to the rest of the world, while Spain made the like assertion with reference to the West.
All these vain and extravagant pretensions have long since given way to the influence of reason and common sense. If, indeed, the sovereignty thus asserted had a real existence, and could now be maintained, it would of course, independently of any question as to the three-mile zone, be conclusive of the present case. But the claim to such sovereignty, at all times unfounded, has long since been abandoned. No one would now dream of asserting that the sovereign of these realms has any greater right over the surrounding seas than the sovereigns on the opposite shores; or that it is the especial duty and privilege of the Queen of Great Britain to keep the peace in these seas; or that the Court of Admiralty could try a foreigner for an offence committed in a foreign vessel in all parts of the Channel. No writer of our day, except Mr. Chitty in his treatise on the prerogative, has asserted the ancient doctrine. Blackstone, in his chapter on the prerogative in the Commentaries, while he asserts that the narrow seas are part of the realm, puts it only on the ground that the jurisdiction of the Admiralty extends over these seas. He is silent as to any jurisdiction over foreigners within them. The consensus of jurists, which has been so much insisted on as authority, is perfectly unanimous as to the non-existence of any such jurisdiction. Indeed, it is because this claim of sovereignty is admitted to be untenable that it has been found necessary to resort to the theory of the three-mile zone. It is in vain, therefore, that the ancient assertion of sovereignty over the narrow seas is invoked to give countenance to the rule now sought to be established, of jurisdiction over the three-mile zone. If this rule is to prevail it must be on altogether different grounds. To invoke as its foundation, or in its support, an assertion of sovereignty which, for all practical purposes, is, and always has been, idle and unfounded, and the invalidity of which renders it necessary to have recourse to the new doctrine, involves an inconsistency, on which it would be superfluous to dwell. I must confess myself unable to comprehend how, when the ancient doctrine as to sovereignty over the narrow seas is
adduced, its operation can be confined to the three-mile zone. If the argument is good for anything, it must apply to the whole of the surrounding seas. But the counsel for the Crown evidently shrank from applying it to this extent. Such a pretension would not be admitted or endured by foreign nations. That it is out of this extravagant assertion of sovereignty that the doctrine of the three-mile jurisdiction, asserted on the part of the Crown, and which, the older claim being necessarily abandoned, we are now called upon to consider, has sprung up, I readily admit. Let me endeavour to trace its origin and growth.
With the celebrated work of Grotius, published in 1609, began the great contest of the jurists as to the freedom of the seas. The controversy ended, as controversies often do, in a species of compromise. While maintaining the freedom of the seas, Grotius, in his work De Jure Belli et Pacis, had expressed an opinion that, while no right could be acquired to the exclusive possession of the ocean, an exclusive right or jurisdiction might be acquired in respect of particular portions of the sea adjoining the territory of individual states. Thus, he says (lib. ii., cap 2, s. 13):
"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."
This, however, must be taken with some qualification, for in another place he says:
"Illud certum est, etiam qui marc occupaverit navigationem impedire non posse inermem et innoxiam, quando nec per terram talis transitus prohiberi potest, qui et minus esse solet necessarius et magis noxius."
Other writers adopted a similar principle, but with very varying views as to the extent to which the right might be exercised. Albericus Gentilis extended it to 100 miles; Baldus and Bodinus to sixty. Loccenius (De Jure Maritimo, ch. iv. s. 6) puts it at two days' sail; another writer makes it extend as far as could be seen from the shore. Valin, in his Commentary on the French Ordonnances of 1681 (ch. v.), would have it reach as far as bottom could be found with the lead-line.
Puffendorf, whose work, De Jure Natur¾ et Gentium, was first
published in 1672, treats the sea adjacent to the land as an accessory to the latter:
"Putaverim citra absurditatem dici posse, partes maris, in quantum rationem munimenti, adeoque appendicis duntaxat habent, absque peculiari actu corporali coepisse subire dominium ejus populi, cujus littoribus pr¾texuntur, postquam inter gentes armatarum usus navium innotuit. Nam hoc intuitu mare sese habet, tanquam accessorium terr¾, sicut fossae, vel etiam proxim¾ uligines et paludes censentur accessio urbis" (lib. iv. c. 2, s. 8).
As to the distance to which the sea is to be thus treated as accessory to the land, Puffendorf himself expresses no opinion, contenting himself with referring to that of Baldus and Bodin, that it should extend to sixty miles.
Even Casaregis, writing as late as 1740, after the three-mile theory had been propounded by Bynkershoek, asserts (Discursus de Commercio, s. 136) that the sovereign possessing the coast has an equal sovereignty over the sea to an extent of 100 miles, and criminal jurisdiction over all offenders, and has not only the power of imposing tolls and dues on passing ships, but also that of prohibiting ships from passing through his waters.
Differing altogether from these writers as to the extent of maritime sovereignty, Bynkershoek, an advocate, like Grotius, for the mare liberum, and who entered the lists against Selden as to the dominion of England in the so-called English Sea, in his treatise De Dominio Maris, published in 1702, follows up the idea of Grotius as to a limited dominion of the sea from the shore:
"Existimem itaque," he says, "eousque possessionem maris proximi videri porrigendam, quousque continenti potest haberi subditum; eo quippe modo, quamvis non perpetuo navigetur, recte tamen defenditur et servatur possessio jure qu¾sita: neque enim ambigendum est eum possidere continuo, qui ita rem tenet. ut alius eo invito tenere non possit. Unde dominium maris proximi non ultra concedimus, quam terra illi imperari potest; et tamen, eousque, nulla siquidem sit ratio, cur mare, quod in alicujus imperio est et potestate, minus ejusdem esse dicamus, quam fossam in ejus territorio."
After combating the doctrine of a mare clausum as regards the sea at large, and enumerating these inconsistent opinions, which he seems little disposed to respect, Bynkershoek continues:
"Hinc videas priscos juris magistros, qui dominium in mare proximum ausi sunt agnoscere, in regundis ejus finibus admodum vagari incertos." "Quare omnino videtur rectius," he adds, after disposing of the foregoing opinions, "Eo potestatem terr¾ extendi, quousque tormenta exploduntur; eatenus quippe,
cum imperare, tum possidere videmur. Loquor autem de his temporibus; quibus illis machinis utimur; alioquin generaliter dicendum esset, potestatem terr¾ finiri, ubi finitur armorum vis; etenim h¾c, ut diximus, possessionem tuetur."
We have here, for the first time, so far as I am aware, a suggestion as to a territorial dominion over the sea, extending as far as cannon-shot would reach - a distance which succeeding writers fixed at a marine league, or three miles. Prior to this, no one had suggested such a limit. The jurisdiction, assumed in the Admiralty commissions, or exercised by the Court of King's Bench in the time of the Edwards, was founded on the King's alleged sovereignty over the whole of the narrow seas; it had no reference whatever to any notion of a territorial sea. To English lawyers the idea of this limited jurisdiction was utterly unknown. With Selden and Hale, they stood up stoutly for the King's undivided dominion over the four seas. No English author makes any distinction, as regards the dominion of the Crown, between the narrow seas as a whole and any portion of them as adjacent to the shore. The doctrine was equally unknown to the Scotch lawyers. Craig, writing at the outset of the seventeenth century, while he allots part of the sea to the shore it adjoins, gives no limit as to distance:-
"Quod ad marc attinet, licet adhuc ita omnium commune sit, ut in eo navigari possit, proprietas tamen ejus ad eos pertinere hodie creditur ad quos proximus continens; adeo ut mare Gallicum id dicatur quod litus Galli¾ alluit, ut ei propius est quam ulli alii continenti. Sic Anglicum, Scoticum, Hibernicum, quod propius Angli¾, Scoti¾, et Hiberni¾ est. Ita ut reges inter se quasi omnia maria diviserint, et quasi ex mutu partitione alterius id mare censeatur quod alteri propinquius et commodius est; in quo si delictum aliquod commissum fuerit, ejus sit jurisdictio qui proximum continentem possideat: isque suum illud mare vocat:" Jus Feudale, lib. 1, s. 13, p. 140.
Even to our times the doctrine of the three-mile zone has never been adopted by the writers on English law. To Blackstone, who in his Commentaries treats of the sea with reference to the prerogative, as also to his modern editor, Mr. Stephen, it is unknown; equally so to Mr. Chitty, whose work on the prerogative is of the present century. It was not till the beginning of this century that any mention of such a doctrine occurs in the courts of this country. But to the continental jurists, the suggestion of Bynkershoek seemed a happy solution of the great controversy
as to the freedom of the sea; and the formula, potestas finitur ubi finitur armorum vis, was a taking one; and succeeding publicists adopted and repeated the rule which their predecessor had laid down, without much troubling themselves to ascertain or inquire whether that rule had been recognised and adopted by the maritime nations who were to be affected by it.
Wolff in his Jus Gentium, published in 1749, argues that, as the use of the sea adjoining the shore, and which consists in fishing and the collection of such things as the sea produces, is not inexhaustible, nor the use of such sea for navigation always innocuous, and as the sea affords protection to the adjacent country, and it is to the interest of the inhabitants that armed ships should not be allowed to pass, there is no reason why it should not be subjected to the dominion of the state, or why others should not be excluded from it. It is therefore, he contends, beyond doubt that the inhabitants of the shore may occupy the adjoining sea so far as they can maintain their dominion, and that it thus becomes their territory. Hence he concludes:
"Quoniam partes maris occupat¾ ad territorium illius gentis pertinent, qu¾ eas occupavit, quale jus Rector civitatis in suo territorio habet, tale etiam ipsi competit in partibus maris occupatis. Per consequens, qui in iis versantur iisdem legibus subsunt, quam qui in terris habitant, aut commorantur, etiam peregrini admissi."
On the same ground he ascribes to the state full legislative power over the sea in question, which shall be binding upon all who may come within it: chap. i. § 128-132.
Hubner, whose work De la Saisie des Btimens Neutres was published in 1759, contrasting the parts of the sea which wash the coast of maritime countries with the open sea, says of the former, but in general terms, and with reference to Bynkershoek's doctrine,
"It is clear that these parts of the sea belong to the master of the country, as accessory to the land. First, because it is in his power to take possession, and maintain it by means of forts and batteries which he can erect on the shore; secondly, because these waters serve as a rampart to the land."
Vattel (Droit des Gens, § 288) states the law thus:
"A nation may appropriate to itself things, the free and common use of which would be hurtful or dangerous to it. This is a reason why powers extend their dominion over the sea as far as they can protect their right. It is of importance to the safety and welfare of the state that it should not be free to all the world
to come so near to its possessions, especially with ships of war, which may impede the access of commercial nations, and disturb their navigation." "These parts of the sea," he goes on to say, "thus subject to a nation, are comprised within its territory. No one can navigate therein against its will." "But then, he continues, "the nation cannot refuse access to ships not suspected, or making innocent use of its waters, without a violation of its duty." "It is true it is for the nation to judge of what it shall do in the particular case. If it determines wrongly, it errs, but the others must put up with it."
Coming to the question of distance, Vattel lays it down as most consistent with reason that the dominion of the state over the adjacent sea should extend "as far as is necessary for its safety, or it can make its power respected."
To this somewhat vague rule he afterwards gives more precision:
"Now-a-days," he says, "all the extent of sea which is within reach of cannon-shot from the shore is considered as forming part of the territory. For this reason a vessel taken under the cannon of a neutral fortress is not a good prize."
In the great French work, the Rpertoire de Jurisprudence, published in 1777, in the article "Mer," the writer, after saying that no sovereign has the right of attributing to himself the empire of the seas, goes on to say that as every sovereign is entitled to forbid foreign commerce in his possessions and to protect these possessions from insult, he may prevent their being approached within a certain distance. This principle being settled, it remains, the writer continues, to determine this distance, which, he says, "has been fixed by treaties of peace and commerce at two leagues from the coast." What the treaties are which are thus referred to is not stated.
Moser, writing in 1778 (Versuch des neuesten Europischen Vlkerrechts, vol. v. p. 486), asserts the same principle, but puts the distance differently.
"The sea," he says, "which borders on the coast of a country is indisputably according to the law of nations, under the sovereignty of the adjacent land, so far as a cannon-shot will reach."
Lampredi, writing in the same year, while he concedes the right of property in the adjacent waters, makes the limit depend on convenience:
"Nobis visum est singulas gentes eam partem circa littus suum occupare posse, cujus usus necessarius, quamque tuendis littoribus et territorio necessarium arbitrantur": Public. Jur. Theor., vol. ii. p. 65.
The part so occupied he assimilates absolutely to the land:
"Maris pars, quam gens occupavit, veluti ejus territorium habetur, atque adeo est in ejus imperio et dominio. Quapropter quisquis in mari versatur occupato, sive indigena sive peregrinus sit, imperio gentis subjicitur, legibusque imperantis tenetur, quibus vel cives generatim, vel pr¾sertim person¾ et res maritim¾ reguntur": Ib. p. 7.
Galiani, in his work De' Doveri de' Principi Neutrali, published in 1782, says that it is "Cosa ricevutissima" to consider the belt of open sea which washes the shore as belonging to, and, as it were, incorporated with, the land and forming part of it. At the same time he observes that the opinion as to the extent of this territorial sea has differed in various epochs. He seems at first prepared to extend it as far as the magistrates can, by the fear of the powers confided to them, cause their decrees to be obeyed. But further on he seems disposed to fix this at cannon-range, or the three-mile distance.
But as though an element of uncertainty should not be wanting, he proceeds to argue that, while for fixing tolls, or restricting the freedom of passage to foreign ships, or for customs purposes, this should be the limit, on the other hand, if the purpose is the benevolent one of enforcing the observance of its neutrality and preventing belligerent cruisers from carrying on their operations within its waters, the limit may be extended by the state to double the distance.
Martens, who wrote in 1778, after speaking of straits and bays, continues:
"So a nation may assert an exclusive right to the neighbouring portions of the sea capable of being maintained from the shore. At this day all European nations agree that, as a rule, straits, bays, gulfs, and the neighbouring sen belong to the master of the coast, to the extent, at least, of a cannon-shot from the shore. In a number of treaties, the wider range of three leagues has even been adopted."
M. Rayneval (Institutions du Droit de la Nature et des Gens, liv. 2, ch. ix. § 10) makes the horizon the boundary of the territorial sea - a rule obviously very difficult, if not incapable of application where the coast of one country can be seen from that of another.
Schmalz, a professor of law at the University of Berlin, writing
at the beginning of the present century - I am citing from the French translation, ch. ii. p. 144 - says:
"The parts of the sea which bathe the coast have always been considered to be the property of the country which they bound." "In Europe, the opinion of jurists who have treated the matter philosophically, has been systematically adopted. According to this principle the sea should belong to the continent as far as the defence of the shore can extend, of which a cannon-shot was to be taken as the measure. At a later period the distance has been fixed arbitrarily at three marine leagues."
This, it will be observed, would make the distance three times greater than other writers fix it at. According to this author, this alleged property in the sea carries with it criminal jurisdiction in respect of offences committed on it; the right to levy tolls, in consideration of providing for the general peace and security; and, with the exception of the freedom of navigation, which he holds cannot be withheld, the right of excluding foreigners from all use whatsoever of the sea.
Azuni, writing in 1805 (Droit Maritime de l'Europe, vol. i. p. 252, s. 14), adopts the view of Galiani, as
"Offering the most just and only rule for fixing the extent of the territorial sea, a point always contested, and not as yet decided, at least not fixed, as it ought to be, on the basis of solemn treaty between the maritime powers." "Till such an agreement shall have been come to publicly," adds Azuni, "everything will depend on arbitrary usage, and the stronger will give the law to the weaker."
This is not very encouraging, but the author goes on to prescribe as the safest limit the space to which a shot from a cannon can be carried, the extreme range of which he estimates at three miles. He, too, following Galiani, thinks the distance may be extended when the purpose is one of benevolence and peace. As regards the degree of dominion which the state is entitled to exercise, he says:
"Any nation which occupies a part of the adjacent sea has the right of sovereignty as well as the domain over it: in other words, the same right that it has over the land." "It may legitimately prohibit the navigation of its territorial waters to foreigners, without infringing on general liberty, or offending against the law of nations."
Klber (Droit des Gens Modernes, Part II., tit. ii, § 130, published in 1831), says:
"To the maritime territory (Seegebiet) of a state belong the maritime districts or waters capable of exclusive possession, over which the state has acquired,
whether by occupation or convention, and maintained sovereignty. Among these must be reckoned the parts of the ocean which adjoin the continental territory of the state, at all events, according to the generally received opinion, to the extent of the space which can be reached by cannon-shot from the shore" (Mare proximum - mum - vicinum - nchst angrnzendes Meer).
Wheaton, whose work on the Elements of International Law, appeared in 1836, concurs with the writers who had preceded him respecting the formula of Bynkershoek, laying it down that,
"By the generally-approved usage of nations, which forms the basis of international law, the maritime territory of every state extends (among other things) to the distance of a marine league, or as far as a cannon-shot will reach from the shore, all along the coasts of the state." In the French edition of his work he adds: "Dans ces limites les droits de proprit et de juridiction sont absolus, et excluent ceux de toutes les autres nations."
Pascal Fiore, an Italian jurist, in his work on International Law, published in 1865 (vol. i. p. 370), says:
"Every nation has a dominium utile on the sea which washes its shores, in the interest of its preservation. It exercises, besides, a right of jurisdiction and police, in the interest of its defence. Upon this all publicists and treaties agree. International conventions have always regarded a territorial sea as the property of the state. "But the publicists," continues this author, "are not agreed as to the extent of the territorial sea, and the limit of the use (domaine utile) which the state may exercise."
This, he says, must be determined "by the necessity of the case and the nature of the particular right claimed." Thus the right of fishing, that of levying tolls for the maintenance of the navigation, that of the defence of the coast, may come into question. As regards the latter, the writer seems to think that it should extend to the point at which "the state has the means of making its will respected and causing its rights of sovereignty to be acknowledged." "According to this principle, the zone of jurisdiction would increase with the perfection of artillery." But, whatever the right of the sovereign, M. Fiore denies him the power of interfering with the passage of vessels which do not compromise the safety of his territory.
MM. Pistoye and Duverdy, in their Trait des Prises Maritimes (tit. 2, chap. iii. vol. i. p. 93), write as follows:-
"While no human power can possess and govern the sea at large, those portions of ie which border on the coast may be, and are, brought under the power and sovereign dominion of the nations they adjoin. From the coast, each power can, in a given zone, measured by the range of a cannon-shot, impose its laws and
enforce obedience to them. There is not, it is true, bodily possession of the waves, which from their perpetual flow and movement, render any action of this kind upon them impossible; but there is a direct and constant domination, which places these territorial waters under the immediate police of the local government, in the same manner as each state is master of the rivers, lakes, and channels which pass through its territory."
"There has been much discussion," these writers continue, "as to the extent of this territorial sea; but the principle upon which its appropriation rests, serves also to determine its bounds, and it must be acknowledged that the range of cannon from the shore is the only real and true limit of the sea in question. No measure, however, has been generally agreed upon between different nations as to the distance which cannon range may be supposed to cover. But the eyes of experienced sailors and officers employed upon the coast may be trusted to to judge how far a given spot is within the distance."
No writer has carried the doctrine of the territorial sea further than M. Hautefeuille, in his two works, the Histoire des Origines, des Progrs et des Variations du Droit Maritime, and his treatise, Des Droits et Devoirs des Nations Neutres. In the first, at p. 197, he explains the foundation of the doctrine:
"While," he says, "the high sea cannot be possessed exclusively by any people, because it cannot be brought or kept under the power of man, the part of the sea which touches the coast may easily be defended by the riparian, may be kept under his subjection by force, and held in his possession. With a few instruments of war, a few cannons, he, in fact, commands this area; he can shut out foreign vessels, or admit only such as he pleases."
Next, taking the same ground as had been previously taken by Wolff, M. Hautefeuille argues that the products of the sea are not inexhaustible, and that the pursuit of them requires to be kept under proper regulation; while the people in possession of the shore are deeply interested in possessing the adjoining waters also, in order to protect themselves against pirates. Hence the distinction between these waters and the open sea; hence the former may be possessed and considered as an accessory to the shores they wash. In the second work he asserts that -
"These territorial waters are the property of the nations possessing the shores, and, consequently, that these nations have within such waters all the rights of sovereignty without exception, as though it were on so much land. They can, therefore," he asserts, "prohibit the vessels of all other nations, or of any particular nation, from navigating these waters; or they may prohibit the navigation for particular purposes, as, for instance, the coasting trade. They may limit the number of ships of war that shall be allowed to enter or to anchor in these waters, even in open roadsteads. They may subject merchant vessels, not only to search in respect of customs-dues, but also to tolls for anchorage, lights, buoys, and the
like. In a word, they may make whatever regulations it appears to them expedient to make with a view to their own interest. Foreigners entering this reserved territory must submit to the law of the sovereign in all that concerns their relations with the land and its inhabitants, as though they were on the land. The limit of the territorial sea is fixed by the principle from which its territorial character arises. It extends as far as the sea can be commanded from the shore, but no further."
Very different is the view of another modern French writer on international law, M. Ortolan, as to the degree of dominion which may be exercised over the territorial sea. While he asserts the existence of such a sea, he denies any right of property in it, or of absolute dominion over it. To determine this question, says M. Ortolan (Diplomatie de la Mer, liv. ii. c. 8),
"It is necessary to refer to the principles on which the particular rule as to this portion of the sea is founded, and to the nature of the rights which the nation owning the coast can claim over it." "It signifies little," he continues, "that the bottom of the sea is manifestly a continuation of the coast. As soon as there is sufficient depth for navigation, nations are entitled, as of right, to the use of the sea as a means of communication, nor can it be legitimately denied to them. While the nation owning the coast is entitled to refuse access to its land territory, it cannot assert a right to prevent ships from passing in front of its shores, or to declare the territorial sea closed, as it might do in respect of one of its ports. It cannot impose tolls on passing vessels as in a water belonging to itself, except as a fair indemnity for works for the benefit of the navigation or for special services rendered. To act contrary to these rules would be to act in contradiction to the essential destination of the sea, and to derive an advantage from it which no one has a right to. And though the nation might have the means of compulsion, this would not make its proceedings the more lawful. The light, then, to the territorial sea is not a right of property; it cannot be said that the state, which is the proprietor of the land, is also proprietor of this sea."
To make this good, M. Ortolan refers to the grounds on which the doctrine of the territorial sea rests, namely, the protection of the country as regards safety, prosperity, and individual interests, against offences of every kind by which these may be affected. With a view to this defence the state is entitled to make the necessary laws and regulations, and to employ force to insure their execution. "Les lois de police et de sret," says the author, "y sont obligatoires." Whether he thereby means to imply that other laws would not be so is left uncertain. "En un mot," concludes M. Ortolan, "l'tat a sur cet espace, non la proprit, mais un droit d'empire; un pouvoir de legislation, de surveillance et de juridiction, conformment aux rgles de la juridiction internationale."
What is to be understood by laws of "police et sret" is very uncertain, and what the rules are to which he here refers, and whether any and what limitation would be thereby imposed on the rights attaching to territorial dominion he fails to inform us.
As regards distance, M. Ortolan would fix it at the extreme range of cannon-shot according to the improvement of artillery, as varying with the age.
A still later author, M. Calvo (Droit International, liv. v. §§ 199-201), takes the same view as to the absence of any right of property in the territorial belt, but would concede a much larger and more exclusive dominion to the state to whom the belt belongs.
"To facilitate the defence of the coasts," he says, "the general practice of nations, sanctioned by numerous treaties, has drawn, at a certain distance from the land, an imaginary line, as the extreme limit of the maritime frontier of each country. Whatever comes within that line falls ipso facto within the jurisdiction of the state which commands it, and is entitled territorial sea." At the same time he goes on to say that "the publicists are far from being agreed as to the extent of this sea; and that to solve the question in a rational and practical manner, it is necessary to bear in mind that nations have not a right of property in the territorial sea (que les tats n'ont pas sur la mer territoriale un droit de proprit) but only a right of surveillance and jurisdiction in the interest of their own defence, or the protection of their fiscal interests. It is therefore in the nature of things that this right should extend as far as its existence can be justified, but should terminate where all fear of real danger, or its public usefulness, or the possibility of defence, ceases."
Where this point is to be found the author fails to tell us.
"Hence it follows," says M. Calvo, "on principle, that the territorial sea can only comprehend the space capable of being defended from the shore, or of serving as a place from which to attack it. Since the invention of fire-arms, an extent of three miles has been generally given to this zone. Within it the exercise of the territorial jurisdiction is absolute and incontestable, and excludes the rights of every other nation."
On the other hands, Professor Heffter, in his highly-esteemed work, the Public International Law of Europe (§ 75), after asserting, as incontestable, the right of maritime nations, both for the defence of their territory against unexpected attack, and the protection of their commercial interests and customs-laws, to establish an active surveillance and a police on their coasts and the parts adjoining, and to take all necessary measures to close the access to their territory to those whom they may not choose to receive,
or who do not conform to the established regulations, goes so far as to ascribe to the particular state the power of fixing, according to circumstances, the limit to which its right shall extend. Adverting to the generally received rule, which fixes the limits of the dominion over the adjoining sea at three miles, he is disposed to think, with Vattel, that this dominion extends as far as is necessary for the safety of the state, and the latter can enforce its power; or even that the principle of Rayneval may be adopted, which makes the horizon the boundary of the territorial sea. "The range of cannon-shot affords," he thinks, "no invariable basis, and the distance may be fixed, at all events provisionally" - what he means by this is by no means clear - "by the law of each state." He concedes to the state the power of making regulations relative to the use of the territorial waters, as, for instance, in respect of fishing and "the right of jurisdiction;" but what he includes under the latter term he omits to explain. On the other hand, he is wholly silent as to any territorial right of property in the waters in question.
Professor Bluntschli, in his work Das Moderne Vlkerrecht (§§ 307-9), while he states that the open sea is free to all nations and individuals for navigation and fishing, affirms that portions of the sea are subject to a limited jurisdiction ("einer beschrnkten Gebietshoheit"). Amongst these he enumerates the sea which washes the shore, on the ground that the close connection of such parts of the sea with the land and state justifies an extension of the territorial jurisdiction of the latter; for which reason such part of the sea is considered as accessory to the land, the power and protection of the latter extending over it. In the opinion of this author
"The safety and order of the state is so manifestly interested in this particular that the usual measure of the cannon-shot is not always to be considered as sufficiently extensive in the case of gulfs and bays." "As incidental to this limited jurisdiction," says M. Bluntschli (Article 310), "the state is entitled to extend measures necessary for the protection of its territory and its laws to these portions of the sea; and to make regulations of police with reference to navigation and fishing; but it is not entitled in time of peace to deny the right of passage, or the use of these waters for navigation, or to exact tolls in respect of them."
But the writer draws a distinction between ships commorant on the territorial waters of a state and ships merely passing through
them. After laying it down, that foreign ships within the territorial waters of a state are subject to its laws, he goes on to say:
"Ships which confine themselves to passing along the coasts of a state, in the part of the sea which forms a portion of its territory, are subject for the time to the sovereignty of such state, in this sense, that they are bound to respect the military and police regulations adopted by it for the safety of its territory and of the population of the coast." "The jurisdiction of the adjoining state extends over the neighbouring sea only as far as is deemed necessary by the police and military authorities. In all other respects the ship is as free as if it were on the high seas, that is to say, it is considered as a floating portion of the country to which it belongs." (§ 322.)
Thus, according to this author, it is only with regard to matters of police and military regulation, that the jurisdiction of a state over its littoral sea extends.
An American writer on International Law, Mr. Halleck (ch. vi. § 13), after speaking of ports, bays, and mouths of rivers as national territory, within the limits of which the rights of property and territorial jurisdiction are absolute, and exclusive of those of every other state, goes on to say that -
"The general usage of nations superadds to this maritime territory an exclusive territorial jurisdiction over the sea for the distance of one marine league, or the range of a cannon-shot along all the shores or coasts of a state." He adds, that "even beyond this limit states may exercise a qualified jurisdiction for fiscal and defensive purposes, that is, for the execution of their revenue laws, and to prevent hovering on their coasts."
He observes that "it is necessary to distinguish between maritime territory and territorial jurisdiction," which he proposes to do in a subsequent chapter, and, indeed, does with respect to vessels in a foreign port; but he is silent as to how far the law of the local state is applicable to vessels passing along or anchoring in its external waters.
A writer of our own country, Mr. Manning, in his Law of Nations (p. 119), lately edited by a distinguished jurist, Mr. Amos, thus limits the purposes as to which this right may be exercised:-
"For some limited purposes a special right of jurisdiction, and even (for a few definite purposes) of dominion, is conceded to a state in respect of the part of the ocean immediately adjoining its own coast line. The purposes for which this jurisdiction and dominion have been recognised are - (1) the regulation of fisheries; (2) the prevention of frauds on customs laws; (3) the exaction of harbour and lighthouse dues; and (4) the protection of the territory from violation in time
of war between other states. The distance from the coast line to which this qualified privilege extends has been variously measured - the most prevalent distances being that of a cannon-shot or of a marine league from the shore."
We have here a total silence as to any criminal jurisdiction over foreigners.
Chancellor Kent, whose opinion we should have been so much disposed to respect, also leaves the matter in doubt.
"It is difficult," he says, "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 be reasonably 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 marine league. And the congress of the United 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."
Three or four other learned authors remain to be noticed, who, although not professing to treat of international law, have nevertheless incidentally touched on this subject, and whose opinions may be deserving of attention.
The subject is discussed by M. Mass, in his recent work, Le Droit Commercial dans ses rapports avec le Droit Civil, of which the last edition appeared in 1874 (book ii. tit. ii. ch. i. art. 105). After giving the usual reasons for conceding the right to the territorial sea, he continues:-
"Every nation has, therefore, a right of police and of jurisdiction over the part of the sea which borders on its coasts, and makes, in some sort, a part of its territory. It can, consequently, subject all ships that come within the extent of the territorial sea to its customs and navigation laws; but this right is not so absolute as that the nation whose coast the sea adjoins can prohibit navigation for the purposes of commerce. This can only be denied to ships of war. So that, to speak truly, in all that concerns navigation, a people has not the full right of property over the littoral sea. It has only jurisdiction over it. 'Quamvis in mari non sit territorium,' says Roccus (cent. 2, resp. 3, n. 10), 'Tamen in eo jurisdictio exercetur;' or rather the right of property is burdened with a natural servitude for the general benefit of navigation. It is otherwise in respect of the right of fishing, which is confined to the inhabitants of the coast."
M. Mass then goes into the question of distance, and after repeating and rejecting the views of the earlier publicists, adopts
the reasoning usually followed, and fixes the distance at three miles, as being the range of cannon-shot. At the same time he observes that this logical rule is not always followed, as nations sometimes fix their own limits at a greater distance, which is binding upon those who recognise the right. Thus, France subjects all vessels to its customs-laws to a distance of five leagues.
Von Kaltenborn, in his Private Maritime Law of Europe, observes that, since the time of Bynkershoek, that is to say for a period of 200 years, the rule has been gaining ground, both in theory and practice, that the littoral sea so far as cannon-shot will reach (quousque mare e terr imperari potest), belongs to the maritime territory (Seegebiet) of a nation. With regard to distance, the writer contents himself with repeating the opinions of his predecessors, but expresses none of his own.
Another writer, Mr. Bishop, in his Commentaries on Criminal Law, an elaborate and learned work, published in 1865, says (book iv. c. 5, § 74):
"A nation bordering on the sea can hold actual possession of it as far from the shore as cannon-balls will reach, while dominion to this extent is necessary for the safety of the inhabitants, who might otherwise, being neutral, be cut down in in time of war by the artillery of the belligerents contending on the water. And so much of ocean, the authorities agree, is within the territorial sovereignty which controls the adjacent shores. A cannon-shot is, for this purpose, estimated at a marine league, which is a little short of three and a half of our English miles, or exactly 3.4517. But the rule of computing a cannon-shot as a marine league for this purpose was established before the late improvements in guns and gunnery; and, in reason, the distance would seem now to require extension, though the author is not able to refer to any sufficient authority shewing the extension to have been actually made in the law of nations."
A fourth author, Signor Foramiti, in a short but very able treatise, entitled L'Avvocato Marittimo, after dividing the sea into mare vasto and mare territoriale, says:
"The waters which bathe the coast and shores of a state form its natural boundary; for the more effectual protection and defence of which the general usage of nations allows an imaginary line to be traced upon the sea at a convenient distance from the shore, and adapting itself to the formation of the latter, which line must be considered as the artificial maritime boundary of the state."
This line the author, adopting the language of Martens, calls "Linea di rispetto," and fixes at the usual distance of three miles:
"Every ship," he continues, "which is found within this line must be considered as in the waters of the state of which it bounds the sovereignty and jurisdiction,
and those on board must conduct themselves as though they were on the shore, doing nothing which the government has a right to prohibit as prejudicial to the property or safety of the nation."
Whether, if the contrary should happen, they will be within the criminal law of the country, the author does not proceed to tell us.
From the review of these authorities we arrive at the following results. There can be no doubt that the suggestion of Bynkershoek, that the sea surrounding the coast to the extent of cannon-range should be treated as belonging to the state owning the coast, has, with but very few exceptions, been accepted and adopted by the publicists who have followed him during the last two centuries. But it is equally clear that, in the practical application of the rule, in respect of the particular of distance, as also in the still more essential particular of the character and degree of sovereignty and dominion to be exercised, great difference of opinion and uncertainty have prevailed, and still continue to exist.
As regards distance, while the majority of authors have adhered to the three-mile zone, others, like M. Ortolan and Mr. Halleck, applying with greater consistency the principle on which the whole doctrine rests, insist on extending the distance to the modern range of cannon - in other words doubling it. This difference of opinion may be of little practical importance in the present instance, inasmuch as the place at which the offence occurred was within the lesser distance; but it is, nevertheless, not immaterial as shewing how unsettled this doctrine still is. The question of sovereignty, on the other hand, is all-important. And here we have every shade of opinion.
One set of writers, as, for instance, M. Hautefeuille, ascribe to the state territorial property and sovereignty over the three miles of sea, to the extent of the right of excluding the ships of all other nations, even for the purpose of passage - a doctrine flowing immediately from the principle of territorial property, but which is too monstrous to be admitted. Another set concede territorial property and sovereignty, but make it subject to the right of other nations to use these waters for the purpose of navigation. Others again, like M. Ortolan and M. Calvo, deny any right of territorial property, but concede "jurisdiction;" by which I understand them to mean the power of applying the law, applicable to persons on
the land, to all who are within the territorial water, and the power of legislating in respect of it, so as to bind every one who comes within the jurisdiction, whether subjects or foreigners. Some, like M. Ortolan, would confine this jurisdiction to purposes of "safety and police" - by which I should be disposed to understand measures for the protection of the territory, and for the regulation of the navigation, and the use of harbours and roadsteads, and the maintenance of order among the shipping therein, rather than the general application of the criminal law.
Other authors, - for instance, Mr. Manning, - would restrict the jurisdiction to certain specified purposes in which the local state has an immediate interest, namely, the protection of its revenue and fisheries, the exacting of harbour and light dues, and the protection of its coasts in time of war.
Some of these authors, - for instance, Professor Bluntschli, - make a most important distinction between a commorant and a passing ship. According to this author, while the commorant ship is subject to the general law of the local state, the passing ship is liable to the local jurisdiction only in matters of "military and police regulations, made for the safety of the territory and population of the coast." None of these writers, it should be noted, discuss the question, or go the length of asserting that a foreigner in a foreign ship, using the waters in question for the purpose of navigation solely, on its way to another country, is liable to the criminal law of the adjoining country for an offence committed on board.
Now, when it is remembered that it is mainly on the statements and authority of these writers, and to opinions founded upon them, that we are called upon to hold that foreigners on the so-called territorial sea are subject to the general law of this country, the discrepancy of opinion which I have been pointing out becomes very material. Looking to this, we may properly ask those who contend for the application of the existing law to the littoral sea independently of legislation, to tell us the extent to which we are to go in applying it. Are we to limit it to three miles, or to extend it to six? Are we to treat the whole body of the criminal law as applicable to it, or only so much as relates to "police and safety"? Or are we to limit it, as one of these authors proposes, to the protection of fisheries and customs, the exacting of harbour
and light dues, and the protection of our coasts in time of war? Which of these writers are we to follow? What is there in these conflicting views to guide us, in the total absence of precedent or legal sanction, as to the extent to which we may subject foreigners to our law? What is there in them which authorizes us to assume not only that Parliament can of right deal with the three-mile zone as forming part of our territory, but also that, by the mere assent of other nations, the sea to this extent has become so completely a part of our territory as to be subject, without legislation, to the whole body of our existing law, civil and criminal.
But it is said that, although the writers on international law are disagreed on so many essential points, they are all agreed as to the power of a littoral state to deal with the three-mile zone as subject to its dominion, and that consequently we may treat it as subject to our law. But this reasoning strikes me as unsatisfactory; for what does this unanimity in the general avail us when we come to the practical application of the law in the particular instance, if we are left wholly in the dark as to the degree to which the law can be legitimately enforced? This unanimity of opinion that the littoral sea is, at all events for some purposes, subject to the dominion of the local state, may go far to shew that, by the concurrence of other nations, such a state may deal with these waters as subject to its legislation. But it wholly fails to shew that, in the absence of such legislation, the ordinary law of the local state will extend over the waters in question - which is the point which we have to determine.
Not altogether uninfluenced, perhaps, by the diversity of opinion to which I have called attention, the argument in support of the prosecution presents itself - not without some sacrifice of consistency - in more than one shape. At one time it is asserted that, for the space of three miles, not only the sea itself, but the bed on which it rests, forms part of the territory or realm of the country owning the coast, as though it were so much land; so that the right of passage and anchorage might be of right denied to the ships of other nations. At another time it is said that, while the right is of a territorial character, it is subject to a right of passage by the ships of other nations. Sometimes the sovereignty is asserted, not as based on territorial right, but simply as
attaching to the sea, over which it is contended that the nation owning the coast may extend its law to the foreigner navigating within it.
To those who assert that, to the extent of three miles from the coast, the sea forms part of the realm of England, the question may well be put, when did it become so? Was it so from the beginning? It certainly was not deemed to be so as to a three-mile zone, any more than as to the rest of the high seas, at the time the statutes of Richard II. were passed. For in those statutes a clear distinction is made between the realm and the sea, as also between the bodies of counties and the sea; the jurisdiction of the admiral being (subject to the exception already stated as to murder and mayhem) confined strictly to the latter, and its exercise "within the realm" prohibited in terms. The language of the first of these statutes is especially remarkable:
"The admirals and their deputies shall not meddle from henceforth with anything done within the realm of England, but only with things done upon the sea."
It is impossible not to be struck by the distinction here taken between the realm of England and the sea; or, when the two statutes are taken together, not to see that the term "realm," used in the first statute, and "bodies of counties," the term used in the second statute, mean one and the same thing. In these statutes the jurisdiction of the admiral is restricted to the high seas, and, in respect of murder and mayhem, to the great rivers below the bridges, while whatever is within the realm, in other words, within the body of a county, is left within the domain of the common law. But there is no distinction taken between one part of the high sea and another. The three-mile zone is no more dealt with as within the realm than the seas at large. The notion of a three-mile zone was in those days in the womb of time. When its origin is traced, it is found to be of comparatively modern growth. The first mention of it by any writer, or in any court of this country, so far as I am aware, was made by Lord Stowell, with reference to a question of neutral rights, in the first year of the present century, in the case of The Twee Gebroeders. (1) To this hour it has not, even in theory, yet settled into certainty.
(1) 3 C. Rob. 162.
For centuries before it was thought of, the great landmarks of our judicial system had been set fast - the jurisdiction of the common law over the land and the inland waters contained within it, forming together the realm of England, that of the admiral over English vessels on the seas, the common property or highway of mankind.
But I am met by authority, and, beyond question, ancient authority, may be found in abundance for the assertion that the bed of the sea is part of the realm of England, part of the territorial possessions of the Crown. Coke, commenting on s. 439 of Littleton, says, in explaining the words "out of the realm":
"If a man be upon the sea of England, he is within the kingdom or realme of England, and within the ligeance of the King of England, as of his crowne of England. And yet altum mare is out of the jurisdiction of the common law, and within the jurisdiction of the lord admirall."
So Lord Hale, no doubt, in his work De Jure Maris, speaks of the narrow seas, and the soil thereof, as "part of the King's waste, demesnes, and dominions, whether in the body of a county or not." But this was said, not with reference to the theory of the three-mile zone, which had not then been thought of, but (following Selden) to the wild notion of sovereignty over the whole of the narrow seas. This pretension failing, the rest of the doctrine, as it seems to me, falls with it. Moreover, Hale stops short of saying that the bed of the sea forms part of the realm of England, as a portion of its territory. He speaks of it under the vague terms of "waste," "demesnes," or "dominions." He carefully distinguishes between the parts of the sea which are within the body of a county and those which are not.
It is true that, in his later work on the Pleas of the Crown, Lord Hale, speaking in the chapter on Treasons (vol. i. p. 154), of what is a levying of war against the King "within the realm," according to the required averment in an indictment for that offence, instances the hostile invasion of the King's ships ("which," he observes, "are so many royal castles"); and this, he says, "is a levying of war within the realm;" the reason he assigns being that "the narrow seas are of the ligeance of the Crown of England," for which he cites the authority of Selden. Here, again, we have Lord Hale blindly following "Master Selden," in asserting
that the narrow seas owe allegiance to the Crown of England. A hostile attack by a subject on a ship of war on the narrow seas would, I need scarcely say, be a levying of war against the sovereign, but it could not now be said to be high treason as having been done within the realm.
Blackstone (Comm. vol. i. p. 110) says that "the main or high seas" (which he afterwards describes as beginning at low-water mark) "are part of the realm of England" - here Mr. Stephen, feeling that his author was going too far, interposes the words "in one sense" - "for thereon," adds Blackstone, "our Courts of Admiralty have jurisdiction; but they are not subject to the common law." This is, indeed, singular reasoning. Instead of saying that, because these seas are part of the realm of England, the Courts of Admiralty have jurisdiction over them, the writer reverses the position, and says, that because the Admiralty has jurisdiction these seas are part of the realm - which certainly does not follow. If it did, as the jurisdiction of the Admiralty extended, as regards British ships, wherever the sea rolls, the entire ocean might be said to be within the realm.
But to what, after all, do these ancient authorities amount? Of what avail are they towards establishing that the soil in the three-mile zone is part of the territorial domain of the Crown? These assertions of sovereignty were manifestly based on the doctrine that the narrow seas are part of the realm of England. But that doctrine is now exploded. Who at this day would venture to affirm that the sovereignty thus asserted in those times now exists? What English lawyer is there who would not shrink from maintaining - what foreign jurist who would not deny - what foreign government which would not repel such a pretension? I listened carefully to see whether any such assertion would be made; but none was made. No one has gone the length of suggesting, much less of openly asserting, that the jurisdiction still exists. It seems to me to follow that when the sovereignty and jurisdiction from which the property in the soil of the sea was inferred is gone, the territorial property which was suggested to be consequent upon it must necessarily go with it.
But we are met here by a subtle and ingenious argument. It is said that although the doctrine of the criminal jurisdiction of
the admiral over foreigners on the four seas has died out, and can no longer be upheld, yet, as now, by the consent of other nations, sovereignty over this territorial sea is conceded to us, the jurisdiction formerly asserted may be revived and made to attach to the newly-acquired domain. I am unable to adopt this reasoning. Ex concessis, the jurisdiction over foreigners in foreign ships never really existed, at all events, it has long been dead and buried, even the ghost of it has been laid. But it is evoked from its grave and brought to life for the purpose of applying it to a part of the sea which was included in the whole, as to which it is now practically admitted that it never existed. From the time the jurisdiction was asserted to the time when the pretension to it was dropped, it was asserted over this portion of the sea as part of the whole to which the jurisdiction was said to extend. If it was bad as to the whole indiscriminately, it was bad as to every part of the whole. But why was it bad as to the whole? Simply because the jurisdiction did not extend to foreigners in foreign ships on the high seas. But the waters in question have always formed part of the high seas. They are alleged in this indictment to be so now. How, then, can the admiral have the jurisdiction over them contended for if he had it not before? There having been no new statute conferring it, how has he acquired it?
To come back to the subject of the realm, I cannot help thinking that some confusion arises from the term "realm" being used in more than one sense. Sometimes it is used, as in the statute of Richard II., to mean the land of England, and the internal sea within it, sometimes as meaning whatever the sovereignty of the Crown of England extended, or was supposed to extend, over.
When it is used as synonymous with territory, I take the true meaning of the term "realm of England" to be the territory to and over which the common law of England extends - in other words, all that is within the body of any county - to the exclusion of the high seas, which come under a different jurisdiction only because they are not within any of those territorial divisions, into which, among other things for the administration of the law, the kingdom is parcelled out. At all events, I am prepared to abide by the distinction taken in the statutes of Richard II. between the realm and the sea. For centuries our judicial system in the
administration of the criminal law has been divided into two distinct and independent branches, the one having jurisdiction over the land and any sea considered to be within the land; the other over the sea external to the land. No concurrent assent of nations, that a portion of what before was treated as the high sea, and as such common to all the world, shall now be treated as the territory of the local state, can of itself, without the authority of Parliament, convert that which before was in the eye of the law high sea into British territory, and so change the law, or give to the Courts of this country, independently of legislation, a jurisdiction over the foreigner where they had it not before. The argument in support of the contrary appears to me, I must say, singularly inconsistent with itself. According to it the littoral sea is made to assume what I cannot help calling an amphibious character. At one time it is land, at another it is water. Is it desired to apply the law of the shore to it, so as to make the foreigner subject to that law? - it becomes so much territory. Do you wish to keep it within the jurisdiction of the admiral - as you must do to uphold this indictment? - it is made to resume its former character as part of the high seas. Unable to follow this vacillating reasoning, I must add that, to my mind, the contention that the littoral sea forms part of the realm or territory of Great Britain is fatal to the argument which it is intended to support. For, if the sea thus becomes part of the territory, as though it were actually inter fauces terr¾, it seems to follow that it must become annexed to the main land, and so become part of the adjoining county, in which case there would be an end to the Admiralty jurisdiction. The littoral sea cannot be land for one purpose and high sea for another. Nor is anything gained by substituting the term "territory" for land. The law of England knows but of one territory - that which is within the body of a county. All beyond it is the high sea, which is out of the province of English law as applicable to the shore, and to which that law cannot be extended except by legislation.
It does not appear to me that the argument for the prosecution is advanced by reference to encroachments on the sea, in the way of harbours, piers, breakwaters, and the like, even when projected into the open sea, or of forts erected in it, as is the case in the
Solent. Where the sea, or the bed on which it rests can be physically occupied permanently, it may be made subject to occupation in the same manner as unoccupied territory. In point of fact, such encroachments are generally made for the benefit of the navigation; and are therefore readily acquiesced in. Or they are for the purposes of defence, and come within the principle that a nation may do what is necessary for the protection of its own territory. Whether, if an encroachment on the sea were such as to obstruct the navigation to the ships of other nations, it would not amount to a just cause of complaint, as inconsistent with international rights, might, if the case arose, be deserving of serious consideration. That such encroachments are occasionally made seems to me to fall very far short of establishing such an exclusive property in the littoral sea as that, in the absence of legislation, it can be treated, to all intents and purposes, as part of the realm.
Again, the fact, adverted to in the course of the discussion, that in the west of England mines have been run out under the bed of the sea to beyond low-water mark, seems to me to avail but little towards the decision of the question of territorial property in the littoral sea. But for the Act of 21 & 22 Vict. c. 109, to which our attention has been specially directed, I should have thought the matter simple enough. Between high and low-water mark the property in the soil is in the Crown, and it is to be assumed that it is by grant or licence from the Crown, or by prescription, which presupposes a grant, that a mine is carried beneath it. Beyond low-water mark the bed of the sea might, I should have thought, be said to be unappropriated, and, if capable of being appropriated, would become the property of the first occupier. I should not have thought that the carrying one or two mines into the bed of the sea beyond low-water mark could have any real bearing on a question of international law like the present.
But the Act just referred to, and the circumstances out of which it arose, have been brought impressively to our attention by the Lord Chief Justice of the Common Pleas, as shewing that, according to parliamentary exposition, the bed of the sea beyond low-water mark is in the Crown. I cannot help thinking that, when the matter comes to be looked at a little more closely, it
will be found that the facts by no means warrant this conclusion. The Duchy of Cornwall, which is vested in His Royal Highness the Prince of Wales, extends, as is known, to low-water mark. Mines existing under the bed of the sea within the low-water mark having been carried out beyond it, a question was raised on the part of the Crown as to whether the minerals beyond the low-water mark, and not within the county of Cornwall, as also those lying under the sea-shore between high and low-water mark within the county of Cornwall, and under the estuaries and tidal rivers within the county, did not belong to the Crown. The matter having been referred to Sir John Patteson, his decision as to the mines and minerals below low-water mark was in favour of the Crown; with reference to the others, in favour of the duchy. Not having had the advantage of seeing Sir John Patteson's award, I am unaware whether the precise grounds on which his decision proceeded are stated in it, but the terms in which it was framed may be gathered with perfect precision from the recitals of the Act of Parliament which, by arrangement, was passed shortly afterwards to give statutory effect to the award. From the recitals in the preamble to the Act it appears that the award was very carefully, I may say cautiously, drawn. After stating the matter in dispute, and the reference to Sir John Patteson, the preamble goes on to recite that the arbitrator had decided,
"First, that the right to all mines and minerals lying under the sea-shore between high and low-water marks within the said county of Cornwall, and under estuaries and tidal rivers, and other places, even below low-water mark, being in and part of the said county, is vested in His Royal Highness as part of the soil and territorial possessions of the Duchy of Cornwall. Secondly, that the right to all mines and minerals lying below low-water mark, under the open sea adjacent to, but not being part of, the county of Cornwall, is vested in Her Majesty the Queen in right of her Crown, although such minerals may or might be won by workings commenced above low-water mark and extended below it."
The difference between the two parts of this recital is at once apparent. When dealing with that which is within low-water mark, the award declares the right to the mines and minerals under the sea-shore to be vested in His Royal Highness "as part of the soil and territorial possessions of the Duchy of Cornwall." But when the learned arbitrator comes to deal with the mines and minerals below low-water mark, he stops short of saying that these
mines and minerals belong to Her Majesty by virtue of any ownership in the soil. He confines himself to awarding that the right to such mines and minerals is vested in Her Majesty "in right of her Crown." What the grounds were on which this decision was based I can only conjecture. Sir John Patteson may have held, on the authority of Collis (p. 53), that a subject cannot have any ownership in the soil below low-water mark - and, though standing next to the Throne, the Prince of Wales is still a subject - and that, as between the Crown and a subject, as regards property in or under the open sea, the Crown had the better right. Or the decision may have been founded on the peculiar constitution o the Duchy of Cornwall, which is settled by Act of Parliament and occasionally reverts to the Crown. I cannot help thinking that if the arbitrator had proceeded on the ground that the bed of the sea below low-water mark belonged to the Crown, he would have said so, as he had just before done with reference to the soil above low-water mark. It is true that, when we come to the enacting part of the statute, that which had been left unsaid by Sir John Patteson is supplied. The mines and minerals beyond low-water mark are enacted and declared to be in the Queen, in right of her Crown, as part of the soil and possessions of the Crown, just as the mines and minerals within low-water mark are stated to be vested in the Prince of Wales as Duke of Cornwall, in right of the Duchy of Cornwall, as part of the soil and possessions of the duchy. But it is expressly declared that this is to be taken to be so only "as between the Queen in right of her Crown, and the Prince of Wales in right of the Duchy of Cornwall," and the rights of all other persons are expressly preserved. I am surprised, I own, that we should be asked to look on this piece of legislation as a parliamentary recognition of the universal right of the Crown to the ownership of the bed of the sea below low-water mark. This was a bill for the settlement of the question as to the right to particular mines and minerals between the Crown and the duchy, a measure in which both the royal personages particularly concerned and their respective advisers concurred, and in which no other person whatever was interested. To what member of Parliament, even the most eccentric, could it possibly have occurred to raise an objection to it on the ground that it involved an assertion of the
Queen's right of property in the bed of the sea? To whom would it occur that, in passing it, Parliament was asserting the right of the Crown to the bed of the sea over the three-mile distance, instead of settling a dispute as to the specific mines which were in question? With the most unfeigned respect for my learned colleague, I cannot but think that he has attached to this piece of legislation a degree of importance to which it is by no means entitled.
It thus appearing, as it seems to me, that the littoral sea beyond low-water mark did not, as distinguished from the rest of the high seas, originally form part of the territory of the realm, the question again presents itself, when and how did it become so? Can a portion of that which was before high sea have been converted into British territory, without any action on the part of the British Government or legislature - by the mere assertions of writers on public law - or even by the assent of other nations?
And when in support of this position, or of the theory of the three-mile zone in general, the statements of the writers on international law are relied on, the question may well be asked, upon what authority are these statements founded? When and in what manner have the nations, who are to be affected by such a rule as these writers, following one another, have laid down, signified their assent to it? to say nothing of the difficulty which might be found in saying to which of these conflicting opinions such assent had been given.
For, even if entire unanimity had existed in respect of the important particulars to which I have referred, in place of so much discrepancy of opinion, the question would still remain, how far the law as stated by the publicists had received the assent of the civilized nations of the world. For writers on international law, however valuable their labours may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of governments, or may be implied from established usage, - an instance of which is to be found in the fact that merchant vessels on the high seas are held to be subject only to the law of the nation under whose flag they sail, while in
the ports of a foreign state they are subject to the local law as well as to that of their own country. In the absence of proof of assent, as derived from one or other of these sources, no unanimity on the part of theoretical writers would warrant the judicial application of the law on the sole authority of their views or statements. Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorize the tribunals of this country to apply, without an Act of Parliament, what would practically amount to a new law. In so doing we should be unjustifiably usurping the province of the legislature. The assent of nations is doubtless sufficient to give the power of parliamentary legislation in a matter otherwise within the sphere of international law; but it would be powerless to confer without such legislation a jurisdiction beyond and unknown to the law, such as that now insisted on, a jurisdiction over foreigners in foreign ships on a portion of the high seas.
When I am told that all other nations have assented to such an absolute dominion on the part of the littoral state, over this portion of the sea, as that their ships may be excluded from it, and that, without any open legislation, or notice to them or their subjects, the latter may be held liable to the local law, I ask, first, what proof there is of such assent as here asserted; and, secondly, to what extent has such assent been carried? a question of infinite importance, when, undirected by legislation, we are called upon to apply the law on the strength of such assent. It is said that we are to take the statements of the publicists as conclusive proof of the assent in question, and much has been said to impress on us the respect which is due to their authority, and that they are to be looked upon as witnesses of the facts to which they speak, witnesses whose statements, or the foundation on which those statements rest, we are scarcely at liberty to question. I demur altogether to this position. I entertain a profound respect for the opinion of jurists when dealing with the matters of juridical principle and opinion, but we are here dealing with a question not of opinion but of fact, and I must assert my entire liberty, to examine the evidence and see upon what foundation these statements are based. The question is not one of theoretical opinion, but of fact, and, fortunately, the writers upon whose
statements we are called upon to act have afforded us the means of testing those statements by reference to facts. They refer us to two things, and to these alone - treaties and usage. Let us look a little more closely into both.
First, then, let us see how the matter stands as regards treaties. It may be asserted, without fear of contradiction, that the rule that the sea surrounding the coast is to be treated as a part of the adjacent territory, so that the state shall have exclusive dominion over it, and that the law of the latter shall be generally applicable to those passing over it in the ships of other nations, has never been made the subject-matter of any treaty, or, as matter of acknowledged right, has formed the basis of any treaty, or has even been the subject of diplomatic discussion. It has been entirely the creation of the writers on international law. It is true that the writers who have been cited constantly refer to treaties in support of the doctrine they assert. But when the treaties they refer to are looked at, they will be found to relate to two subjects only - the observance of the rights and obligations of neutrality, and the exclusive right of fishing. In fixing the limits to which these rights should extend, nations have so far followed the writers on international law as to adopt the three miles range as a convenient distance. There are several treaties by which nations have engaged, in the event of either of them being at war with a third, to treat the sea within three miles of each other's coasts as neutral territory, within which no warlike operations should be carried on; instances of which will be found in the various treatises on international law.
Thus, for instance, in the treaties of commerce, between Great Britain and France, of September, 1786; between France and Russia, of January, 1787; between Great Britain and the United States, of October, 1794, each contracting party engages, if at war with any other nation, not to carry on hostilities within canon-shot of the coast of the other contracting party; or, if the other should be at war, not to allow its vessels to be captured within the like distance. There are many other treaties of the like tenor, a list of which is given by Azuni (vol. ii. p. 78); and various ordinances and laws have been made by the different states in order to give effect to them.
Again, nations, possessing opposite or neighbouring coasts, bordering on a common sea, have sometimes found it expedient to agree that the subjects of each shall exercise an exclusive right of fishing to a given distance from their own shores, and here also have accepted the three miles as a convenient distance. Such, for instance, are the treaties made between this country and the United States in relation to the fishery off the coast of Newfoundland, and those between this country and France in relation to the fishery on their respective shores; and local laws have been passed to give effect to these engagements.
But in all these treaties this distance is adopted, not as matter of existing right established by the general law of nations, but as matter of mutual concession and convention. Instead of upholding the doctrine contended for, the fact of these treaties having been entered into has rather the opposite tendency: for it is obvious that, if the territorial right of a nation bordering on the sea to this portion of the adjacent waters had been established by the common assent of nations, these treaty arrangements would have been wholly superfluous. Each nation would have been bound, independently of treaty engagement, to respect the neutrality of the other in these waters as much as in its inland waters. The foreigner invading the rights of the local fisherman would have been amenable, consistently with international law, to local legislation prohibiting such infringement, without any stipulation to that effect by treaty. For what object, then, have treaties been resorted to? Manifestly in order to obviate all questions as to concurrent or conflicting rights arising under the law of nations. Possibly, after these precedents and all that has been written on this subject, it may not be too much to say that, independently of treaty, the three-mile belt of sea might at this day be taken as belonging, for these purposes, to the local state. But it is scarcely logical to infer, from such treaties alone, that, because nations have agreed to treat the littoral sea as belonging to the country it adjoins, for certain specified objects, they have therefore assented to forego all other rights previously enjoyed in common, and have submitted themselves, even to the extent of the right of navigation on a portion of the high seas, and the liability of their subjects therein to the criminal law, to the will of the local
sovereign, and the jurisdiction of the local state. Equally illogical is it, as it seems to me, from the adoption of the three-mile distance in these particular instances, to assume, independently of everything else, a recognition, by the common assent of nations, of the principle that the subjects of one state passing in ships within three miles of the coast of another shall be in all respects subject to the law of the latter. It may be that the maritime nations of the world are prepared to acquiesce in the appropriation of the littoral sea; but I cannot think that these treaties help us much towards arriving at the conclusion that this appropriation has actually taken place. At all events, the question remains, whether judicially we can infer that the nations who have been parties to these treaties, and still further those who have not, have thereby assented to the application of the criminal law of other nations to their subjects on the waters in question, and on the strength of such inference so apply the criminal law of this country.
The uncertainty in which we are left, so far as judicial knowledge is concerned, as to the extent of such assent, likewise presents, I think, a very serious obstacle to our assuming the jurisdiction we are called upon to exercise, independently of the, to my mind, still more serious difficulty, that we should be assuming it without legislative warrant.
So much for treaties. Then how stands the matter as to usage, to which reference is so frequently made by the publicists in support of their doctrine? When the matter is looked into, the only usage found to exist is such as is connected with navigation, or with revenue, local fisheries, or neutrality, and it is to these alone that the usage relied on is confined. Usage as to the application of the general law of the local state to foreigners on the littoral sea there is actually none. No nation has arrogated to itself the right of excluding foreign vessels from the use of its external littoral waters for the purpose of navigation, or has assumed the power of making foreigners in foreign ships passing through these waters subject to its law, otherwise than in respect of the matters to which I have just referred. Nor have the tribunals of any nation held foreigners in these waters amenable generally to the local criminal law in respect of offences. It is for the first time in the annals of jurisprudence that a Court of justice is now called
upon to apply the criminal law of the country to such a case as the present.
It may well be, I say again, that - after all that has been said and done in this respect - after the instances which have been mentioned of the adoption of the three-mile distance, and the repeated assertion of this doctrine by the writers on public law, a nation which should now deal with this portion of the sea as its own, so as to make foreigners within it subject to its law, for the prevention and punishment of offences, would not be considered as infringing the rights of other nations. But I apprehend that as the ability so to deal with these waters would result, not from any original or inherent right, but, from the acquiescence of other states, some outward manifestation of the national will, in the shape of open practice or municipal legislation, so as to amount, at least constructively, to an occupation of that which was before unappropriated, would be necessary to render the foreigner, not previously amenable to our general law, subject to its control. That such legislation, whether consistent with the general law of nations or not, would be binding on the tribunals of this country - leaving the question of its consistency with international law to be determined between the governments of the respective nations - can of course admit of no doubt. The question is whether such legislation would not, at all events, be necessary to justify our Courts in applying the law of this country to foreigners under entirely novel circumstances in which it has never been applied before.
It is obviously one thing to say that the legislature of a nation may, from the common assent of other nations, have acquired the full right to legislate over a part of that which was before high sea, and as such common to all the world; another and a very different thing to say that the law of the local state becomes thereby at once, without anything more, applicable to foreigners within such part, or that, independently of legislation, the Courts of the local state can proprio vigore so apply it. The one position does not follow from the other; and it is essential to keep the two things, the power of Parliament to legislate, and the authority of our Courts, without such legislation, to apply the criminal law where it could not have been applied before, altogether distinct,
which, it is evident, is not always done. It is unnecessary to the defence, and equally so to the decision of the case, to determine whether Parliament has the right to treat the three-mile zone as part of the realm consistently with international law. That is a matter on which it is for Parliament itself to decide. It is enough for us that it has, so far as to be binding upon us, the power to do so. The question is whether, acting judicially, we can treat the power of Parliament to legislate as making up for the absence of actual legislation. I am clearly of opinion that we cannot, and that it is only in the instances in which foreigners on the seas have been made specifically liable to our law by statutory enactment that that law can be applied to them.
Let us, then, now see what has been done herein in the way of legislation.
The statutes relating to the sea by which foreigners may be affected may be divided into two classes, those which have no reference to the three-mile zone, and those which have. The latter, again, may be divided into those which expressly refer to the foreigner, and those which are said to do so by implication only. It is desirable to dispose of those first referred to before we come to the statutes which have reference to the three-mile distance. First in order comes the statute of 28 Hen. 8, c. 15, upon which an argument has been founded, resting on a broader basis than that of the modern doctrine, and which, if it could be upheld, would dispense with the necessity of resorting to the theory of the three-mile zone at all. It has been suggested that, independently of any legislation having special reference to the three-mile zone, the statute of Henry VIII., which transferred, as we have seen, the jurisdiction of the admiral to the Courts of common law, had the effect of making foreigners subject to our law for offences committed on foreign ships within the narrow seas; the argument, if I apprehend it rightly, being, first, that the language of the statute being general in its terms, it must be taken to have included foreigners as well as subjects; secondly, that, inasmuch as, at the time when the statute of Henry VIII. was passed, the claim to dominion over the narrow seas was still asserted on the part of the Crown, the jurisdiction given to the admiral by the prior Admiralty Commissions must be taken to have been coextensive
therewith, and such jurisdiction must therefore be considered as having been transferred by the statute.
It is true that the language of the statute is quite general in its terms. After reciting the inconveniences arising from the existing jurisdiction, it enacts that "all treasons, felonies, robberies, murders, and confederacies committed in or upon the sea, or in any haven, river, creek, or place where the admiral or admirals have, or pretend to have" - which has been construed to mean rightfully assert - "jurisdiction, shall be enquired, tried, heard, and determined and judged in such shires and places in the realm as shall be limited by the King's commission, in like form and condition as if such offences had been committed on land." No doubt these words are large enough to include foreigners as well as subjects; but so they are to include the entire ocean as well as the narrow seas. And it cannot be supposed that anything so preposterous was contemplated as to make foreigners liable to the law of this country for offences committed on foreign ships all over the world. The statute must receive a reasonable construction, and the construction put upon it by the highest authorities has always been that all that it effected, or was intended to effect, was, as I have already stated, a transfer of jurisdiction only.
In the Third Institute, cap. 49, p. 112, Lord Coke, speaking of this statute, with reference to the offence of piracy, says:
"This statute did not alter the offence or make the offence felony, but leaveth the offence as it was before this Act, viz., felony only by the civil law, but giveth a mean of trial by the common law."
In Comyns' Digest, title Admiralty, E. 5, it is said:
"This statute does not alter the nature of the offence, which shall be determined by the civil law, but the manner of trial only."
And in Hawkins' Pleas of the Crown (vol. i. s. 2, p. 254) it is said:
"The statute of 28 Hen. 8, c. 15, does not alter the nature of the offence, so as to make that which was before a felony only by the civil law now become a felony by the common law; for the offence must still be alleged as done upon the sea, and is no way cognizable by the common law; but only by virtue of this statute, which, by ordaining that in some respects it shall have the like trial and punishment as are used for felony at common law, shall not be carried so far as to make it also agree with it in other particulars which are not mentioned." In the same work (vol. ii. p. 354), Hawkins again writes: "The statute 28 Hen. 8, c. 15, altered not the nature of the offence, but only the manner of trial."
Again, before we can hold the statute, from the generality of its terms, to include foreigners, we nave to consider whether, according to the law of nations, the jurisdiction of the admiral over foreigners, in foreign ships, on the high seas, existed when the statute was passed. For where the language of a statute is general, and may include foreigners or not, the true canon of construction is to assume that the legislature has not so enacted as to violate the rights of other nations. In the case of Le Louis (1), where, on an appeal from the sentence of a Vice-Admiralty Court, condemning a French ship for being employed in the slave trade and forcibly resisting the King's cruisers, the application of the Slave Trade Act to a foreign ship came into question, Lord Stowell said:
"Neither this British Act of Parliament, nor any commission founded on it, can affect any right or interest of foreigners, unless they are founded on principles and impose regulations that are consistent with the law of nations. That is the only law that Great Britain can apply to them; and the generality of any terms employed in an Act of Parliament must be narrowed in construction by a religious adherence thereto."
This principle was acted on by Vice-Chancellor Wood, and by the Lords Justices Knight Bruce and Turner on appeal from his decision, in a case of Cope v. Doherty (2), where the owners of one foreign ship having sued the owners of another for damage done by a collision at sea, on the defendants seeking to take advantage of the limitation of liability established by s. 504 of the Merchant Shipping Act (17 & 18 Vict. c. 104), it was held that, however general in its terms, the enactment did not apply to foreign vessels. Lord Justice Turner says:
"This is a British Act of Parliament, and it is not, I think, to be presumed that the british Parliament could intend to legislate as to the rights and liabilities of foreigners. In order to warrant such a conclusion, I think that either the words of the Act ought to be express, or the context of it very clear."
This being the true rule of construction, we have to consider whether the jurisdiction of the admiral extended over foreigners on the high seas consistently with the rights of other nations, and I take it to be perfectly clear that it did not. Nor could it, consistently with the law of nations, be made to extend to them. For, if there is one proposition of international law more settled and indisputable than another, it is that the ships of each nation
(1) 2 Dodson, 239.
(2) 1 K. & J. 367; on appeal, 2 De G. & J. 614.
on the high seas carry the law of their own nation with them, and that those on board of them are amenable in respect of offences committed in them (save and except in respect of piracy, which is an offence against the law of all nations) to the law of such nation alone: the only exception to this otherwise universal rule being that the merchant ships of one nation, when in the ports and waters of another, are subject to the law of the latter. But this liability is by all jurists treated as the exception to the general rule. To argue that, because merchant ships and those in them, when in the waters of another state, are liable to the local law, this liability can be extended to foreign ships all over the world, is to make the exception swallow up the rule. And this brings me to the second branch of the argument, namely, that the jurisdiction having been asserted as to the narrow seas at the time the statute passed, it must be taken to have been transferred by the statute. The answer to such a contention is that, no reference being made in the statute to this now-exploded claim of sovereignty, we must read the statute as having transferred - as, indeed, it could alone transfer - such jurisdiction only as actually existed. Jurists are now agreed that the claim to exclusive dominion over the narrow seas, and consequent jurisdiction over foreigners for offences committed thereon, was extravagant and unfounded, and the doctrine of the three-mile jurisdiction has taken the place of all such pretensions. In truth, though largely asserted in theory, the jurisdiction was never practically exercised in respect of foreigners. The fallacy of such an argument as I have here referred to consists in supposing the jurisdiction to have had a real existence, so as to be capable of being transferred without being first expressly created by the statute. And the position contended for labours under this further difficulty, that it supposes a statutory transfer, by implication, of a jurisdiction of one extent at the time the statute was passed, and of another at the present day.
One or two other statutes relating to the sea may be disposed of in a few words, as having little or no bearing on the question before us. The Act of 5 Eliz. c. 5, an Act for the protection of English shipping, after prohibiting, under penalties, the importation of particular articles in foreign ships, provides (s. 30) that such of the offences created by the Act as shall be done on the
main sea, or coasts of the sea, being no part of the body of any county of this realm, and without the precincts, jurisdiction, and liberties of the Cinque Ports, and out of and haven or pier, shall be tried according to the statute of 28 Hen. VIII. If done on the main sea, or coasts of the sea, within the jurisdiction of the Cinque Ports, such offence is to be tried before the Lord Warden, or his lieutenant or judge, or before judges of oyer and terminer, according to the statute of Henry VIII. It is obvious that this statute only affects the foreigner who is seeking our shores with the object of breaking the law.
Coroners for counties, having under the old law no authority to inquire of matters arising on the sea unless within the body of the county, are now, by a recent Act of Parliament (6 Vict. c. 12), enabled, where there is no Admiralty coroner, to hold inquests on bodies found on the sea. That the Admiralty coroner or the county coroner is empowered to hold an inquest on a dead body found floating on the sea, though the body should prove to be that of a foreigner, can have no bearing on such a question as the present.
Again, by 7 Geo. 4, c. 38, justices of the peace are empowered to take any information upon oath touching any treason, piracy, felony, robbery, murder, conspiracy, or other offence, committed on the sea, or in any haven, river, creek, or place where the admiral has power or jurisdiction, and to commit or hold to bail. But this enactment, which is merely in furtherance of the administration of justice, has no special reference to foreigners, and would leave the question of jurisdiction to be disposed of by the Court before which the offence would afterwards come to be tried.
Two other statutes, passed like the last to further the administration of justice, require to be here noticed. The Merchant Shipping Act, 17 & 18 Vict. c. 104, s. 521, enacts that
"In all cases where any district, within which any Court, or justice of the peace, or other magistrate has jurisdiction, either under this or any other Act, or at common law, for any purpose whatever, is situate on the coast of any sea, or abutting on, or projecting into any bay, channel, lake, river, or other navigable water, every such Court, justice of the peace, or magistrate, shall have jurisdiction over any ship or boat being on or lying, or passing off such coast, or being in or near such bay, channel, lake, river, or navigable water as aforesaid, and over
all persons on board such ship or boat, or for the time being belonging thereto, in the same manner as if such ship, boat, or persons were within the limits of the original jurisdiction of such Court, justice, or magistrate."
The amending Act, 18 & 19 Vict. c. 91, s. 2, contains important provisions with reference to offences committed on the sea. It enacts, that
"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."
British subjects may thus be tried by the ordinary Courts of this country for offences committed on board any British ship on the high seas, or in any foreign port or harbour, as if the offence had been committed within the limits of the ordinary jurisdiction of such Courts; but when the section proceeds to deal with those who are not British subjects, it confines their liability to cases in which the crime has been committed on board a British ship on the high seas, and the offender is found within the jurisdiction of a Court of justice in this country, which would have cognizance of the offence if it had been committed within its ordinary jurisdiction.
It thus appears - 1st. That the jurisdiction now exercised by justices and coroners over matters occurring on the high seas is superadded by statute to their ordinary functions by special statutory authority. 2nd. That no distinction is made or suggested between one part of the high sea and another. 3rd. That, while provision is made for trying, wherever he may be found, a foreigner who has committed a crime on board a British ship, no provision is made for the case of a foreigner who has committed a crime on board a foreign ship, however near it may have been to the British shore. In the case in which there is undoubted jurisdiction over a foreign ship, namely, where it is within a port or harbour of this country, no such provision was necessary, and none is made; the enactment being designed for cases where the offender, at the time of committing the offence, is beyond the reach of the officers of justice.
I pass on to the statutory enactments relating to foreigners within the three-mile zone. These enactments, may be divided, 1st, into those which are intended to protect the interests of the state and those which are not; 2nd, into those in which the foreigner is expressly named, and those in which he has been held to be included by implication only.
Hitherto, legislation, so far as relates to foreigners in foreign ships in this part of the sea, has been confined to the maintenance of neutral rights and obligations, the prevention of breaches of the revenue and fishery laws, and, under particular circumstances, to cases of collision. In the two first the legislation is altogether irrespective of the three-mile distance, being founded on a totally different principle, namely, the right of a state to take all necessary measures for the protection of its territory and rights, and the prevention of any breach of its revenue laws.
This principle was well explained by Marshall, C.J., in the case of Church v. Hubbard. (1) The action was on a policy of insurance, on a vessel named the Aurora, in which there was a stipulation that the insurer should not be liable if the vessel, which was insured on a voyage to a port in Brazil, should be seized for violation of the Portuguese revenue laws. She was, in fact, engaged on a smuggling adventure, and was seized at a distance of five leagues from the Portuguese coast. An action having been brought to recover for the loss of the vessel, the stipulation in the policy was made the ground of defence. It was urged in answer that the stipulation must be taken to have had reference to a lawful seizure; whereas here the seizure had been illegal, by reason of its having taken place more than three miles from the coast, and, therefore, out of the jurisdiction of the Portuguese authorities. But the defence prevailed.
Marshall, C.J., in giving the judgment of the Court, says:-
"That the law of nations prohibits the exercise of any act of authority over a vessel in the situation of the Aurora, and that this seizure is, on that account, a mere marine trespass, not within the exception, cannot be admitted. To reason from the extent of protection a nation will afford to foreigners to the extent of the means it may use for its own security, does not seem to be perfectly correct. It is opposed by principles which are universally acknowledged. The authority
(1) 2 Cranch, (U.S.) 234.
of a nation within its own territory is absolute and exclusive. The seizure of a vessel within the range of its cannon by a foreign force is an invasion of that territory, and is a hostile act which it is its duty to repel. But its power to secure itself from injury may certainly be exercised beyond the limits of its territory. Upon this principle the right of a belligerent to search a neutral vessel on the high seas for contraband of war is universally admitted, because the belligerent has a right to prevent the injury done to himself by the assistance intended for his enemy: so, too, a nation has a right to prohibit any commerce within its colonies. Any attempt be violate the laws made to protect this right, is an injury to itself which it may prevent, and it has a right to use the means necessary for its prevention. These means do not appear to be limited within any certain marked boundaries, which remain the same at all times and in all situations. If they are such as unnecessarily to vex and harass foreign law by commerce, foreign nations will resist their exercise. If they are such as are reasonable and necessary to secure their laws from violation, they will be submitted to.
"In different seas," continues the Chief Justice, "and on different coasts, a wider or more contracted range, in which to exercise the vigilance of the government, will be assented to. Thus, in the Channel, where a very great part of the commerce to and from all the north of Europe passes through a very narrow sea, the seizure of vessels on suspicion of attempting an illicit trade must necessarily be restricted to very narrow limits; but, on the coast of South America, seldom frequented by vessels but for the purpose of illicit trade, the vigilance of the government may be extended somewhat further; and foreign nations submit to such regulations as are reasonable in themselves and are really necessary to secure that monopoly of colonial commerce which is claimed by all nations holding distant possessions."
"Indeed, the right given to our own revenue cutters to visit vessels four leagues from our coasts, is a declaration that, in the opinion of the American government, no such principle as that contended for has a real existence."
To this class of enactments belong the Acts imposing penalties for the violation of neutrality, and the so-called "hovering Acts," and Acts relating to the Customs. Thus the Foreign Enlistment Act (33 & 34 Vict. c. 90), which imposes penalties for various acts done in violation of neutral obligations, some of which are applicable to foreigners as well as to British subjects, is extended in s. 2 to all the dominions of Her Majesty, "including the adjacent territorial waters."
By the Act of the last session, 39 & 40 Vict. c. 36, for the consolidation of Acts relating to the Customs, it is enacted by s. 179, embodying the provisions of s. 212 of the previous Act of 16 & 17 Vict. c. 107,
"That, if a foreign vessel, belonging in part to any of Her Majesty's subjects, or having half the persons on board subjects of Her Majesty, is found within four leagues of the coast between the North Foreland and Beachy Head, or within
eight leagues of any other part of the coast; or if a foreign vessel having one or more of Her Majesty's subjects on board, is found within three leagues, or a foreign vessel irrespectively of having any British subject on board, is found within three miles of the coast, conveying spirits, tea, or tobacco, otherwise than in vessels or packages of certain specified dimensions, the articles in question as well as the vessel itself are made liable to forfeiture; and every person who shall be found or discovered to have been on board any ship or boat liable to forfeiture as aforesaid, within three leagues of the coast if a British subject, or within one league if a foreigner, or on board any vessel in Her Majesty's service, or on board any foreign post-office packet employed in carrying mails between any foreign country and the United Kingdom, having on board any spirits or tobacco in such packages as aforesaid, or any tobacco stalks, tobacco stalk flour, or snuff work, shall forfeit a sum not exceeding one hundred pounds; and every such person may be detained and taken before any justice to be dealt with as hereinafter directed, provided that no person shall be detained whilst actually on board any vessel in the service of a foreign state or country."
In this section the legislature has also gone so far as to enact that any ship or boat liable to seizure or examination under this or any Act for the prevention of smuggling - which would include any foreign vessel within the respective limits above mentioned - not bringing to, when required by any vessel employed for the prevention of smuggling, may be fired into.
It thus appears, no doubt, that, so far as the civil consequences of smuggling are concerned, the legislature has gone the length of making foreign vessels and goods liable to forfeiture within the three-mile distance, irrespectively of their having any of the Queen's subjects on board. And when, by s. 235, personal penalties are imposed for breaches of the Act, while British subjects found in any ship liable to forfeiture within the distances specified in the section, are liable to the penalties imposed by the Act, foreigners are made so only when found in such vessels within a league of the coast. We have, therefore, here an application of the penal law to foreigners within the three-mile zone: but, as I have already observed, a nation is entitled to take such measures as it may deem necessary for the protection of its revenue, within a reasonable distance from its shores; and Parliament may have deemed the three miles a reasonable distance within which to make foreigners amenable to penalties under the customs-laws, without at all assuming that the foreigner within the three-mile zone should be subjected generally to the criminal law.
The other enactments affecting foreign ships, or foreigners in
such ships, occur in the Merchant Shipping Acts, statutes passed for the government of the mercantile marine. The original Act, 17 & 18 Vict. c. 104, is divided into separate parts, and nothing relating to foreign ships occurs in the three first parts. Part IV., commencing at s. 291, relates to "safety and the prevention of accidents," and is applicable to British ships only, with the exception of foreign steamships carrying passengers between places in the United Kingdom, foreign steamers having, by a statute passed shortly before, been authorized to be employed in the coasting trade of this country. Important regulations with reference to navigation are made by the Act, and parties neglecting them are subjected to penalties; but although the observance of these regulations on the part of foreign vessels is as essential to the safety of the navigation as the observance of them by British vessels, the latter alone are named, and the statute is silent as to the observance of them by foreign vessels even within the three miles.
Part IV. of the Merchant Shipping Act has received its completion in the Merchant Shipping Acts Amendment Act of 1873, 36 & 37 Vict. c. 85, and the Amendment Act of the last session of 1876, 39 & 40 Vict. c. 86. By s. 16 of the former, very stringent provisions are made as to the duties of masters of vessels in cases of collision; and very serious consequences, some of them of a penal character, attach to non-performance. A master under such circumstances is to stay by the other vessel, and render every practicable assistance which may be necessary for its safety compatible with that of his own, and to give the master of the other vessel the necessary information to identify his own. If he fails in either of these particulars, the collision is to be presumed to have arisen through his neglect or default. So far the enactment is general. But, when the statute goes on to enact that, if the master fails herein, he shall be guilty of a misdemeanor, it confines the enactment to the master of British vessels.
The Merchant Shipping Acts Amendment Act, 36 & 37 Vict. c. 85, as also the Act of the last session (39 & 40 Vict. c. 86), which make it a misdemeanor to send to sea an unseaworthy ship - and provide that a ship about to sail from any part of the United Kingdom, if, by reason of her defective condition, or overloading,
or improper loading, unsafe, may be provisionally detained in order to be surveyed, and, if found unfit, may be finally detained by order of the Board of Trade - confines the former enactment to British ships alone. The latter is applied to foreign ships, but only where the foreign ship has taken in her cargo or any part of it in a British port.
With regard to the "liability of shipowners," which forms the subject of Part IX. of the first-mentioned Act, the enactments being general in their terms, without any specific reference to distance, it has been held by judicial construction that the limitation on such liability created by s. 503 applies to damage done to foreign vessels by collision if occurring within the distance of three miles from the coast. But, where it has been so held, the foreign vessel has been seeking the redress afforded by British law, in a British Court, in respect of damage done by a British ship.
The strongest instance of legislation relating to foreign shipping, is the provision in this part of the Act, which, in s. 527, enacts that,
"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 to the judge of any Court 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 it 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."
In one respect this enactment is independent of the three-mile principle, as it extends the liability to seizure for damage done to British property by a foreign ship in every part of the world. But it is undoubtedly a strong assertion of dominion over foreign ships, and is a striking instance of the adoption of the three-mile principle. It may, however, be doubted whether-the enactment would apply to a ship on a foreign voyage. The authority is to "detain,"
not seize, and would, therefore, seem applicable only to a vessel voluntarily seeking our waters otherwise than for the purpose of passage, and so bringing itself within our jurisdiction. Moreover, the purpose is to obtain satisfaction, not to punish. There is here no application of the criminal law to those on board.
The enactments relating to pilotage are general in their terms, making no distinction between British and foreign ships. The compulsory obligation to take a pilot would, no doubt, attach to a foreign vessel seeking or being within our ports. But in the case of The Girolamo (1), Sir John Nicholl expressed great doubt whether the same rule would apply to a foreign vessel leaving our waters on a foreign voyage.
These being the instances in which alone the legislature has applied the principle of the three-mile jurisdiction, it is apparent that, with the exception of the penalties imposed for violation of neutral duties or breaches of the revenue or fishery laws, there has been no assertion of legislative authority in the general application of the penal law to foreigners within the three-mile zone. The legislature has omitted to adopt the alleged sovereignty over the littoral sea, to the extent of making our penal law applicable generally to foreigners passing through it for the purpose of navigation. Can a court of justice take upon itself, in such a matter, to do what the legislature has not thought fit to do - that is, make the whole body of our penal law applicable to foreign vessels within three miles of our coasts? It is further apparent from these instances of specific legislation that, when asserting its power to legislate with reference to the foreigner within the three-mile zone, Parliament has deemed it necessary, wherever it was thought right to subject him to our law, expressly to enact that he should be so. We must take this, I think, as an exposition of the opinion of Parliament that specific legislation is here necessary, and consequently, that without it the foreigner in a foreign vessel will not come within the general law of this country in respect of matters arising on the sea.
Legislation, in relation to foreign ships coming into British ports and waters, rests on a totally different principle, as was well explained by Dr. Lushington, in the case of The Annapolis. (2) A
(1) 3 Hagg. Adm. 169.
(2) Lush. Adm. 295.
collision having taken place in the Mersey, between the Annapolis, an American ship, and the Johanna Stoll, a Prussian barque, and the Court, assisted by the Trinity Masters, having decided on the facts that the Annapolis was alone to blame, the owners of that vessel claimed immunity, on the ground that the vessel had been in charge of a pilot who had been taken on board, in compliance with the local pilot Acts, which required that a pilot should be taken on board by all vessels entering the Mersey, off a station called Point Lynas, and the pilot had been taken on board accordingly, at a distance of more than three miles from the shore. To this defence it was answered, on behalf of the owners of the damaged vessel, that the having a pilot on board was a good defence only where taking a pilot was compulsory by Act of Parliament; but that here there was no such compulsion, as Parliament had no power to legislate in respect of foreign vessels at a greater distance than three miles from the coast. But this was held not to apply to a vessel voluntarily seeking a British port.
"The Parliament of Great Britain, it is true," says Dr. Lushington, "has not, according to the principles of public law, any authority to legislate for foreign vessels on the high seas, or for foreigners out of the limits of British jurisdiction; though, if Parliament thought fit so to do, this Court, in its instance jurisdiction at least, would be bound to obey. In cases admitting of doubt, the presumption would be that Parliament intended to legislate without violating any rule of international law, and the construction has been accordingly. Within, however, British jurisdiction, namely, within British territory, and at sea within three miles from the coast, and within all British rivers intra fauces, and over foreigners in British ships, I apprehend that the British Parliament has an undoubted right to legislate. I am further of opinion that Parliament has a perfect right to say to foreign ships that they shall not, without complying with British law, enter into British ports, and that if they do enter they shall be subject to penalties, unless they have previously complied with the requisitions ordained by the British Parliament; whether those requisitions be, as in former times, certificates of origin, or clearances of any description from a foreign port, or clean bills of health, or the taking on board a pilot at any place in or out of British jurisdiction before entering British waters. Whether the Parliament has so legislated is now the question to be considered."
That I may not be thought to have left any material part of this inquiry untouched, I proceed to consider the few judicial decisions which, in addition to those already adverted to, have been pronounced in connection with this subject, in order to see whether authority can be gathered from them for application of the law as contended for.
The case of The Twee Gebroeders (1) has been much relied on, as shewing that the doctrine of the three-mile zone was recognised and acted upon by Lord Stowell in that case. The question was as to the validity of the capture of a ship by the boats of a ship of war, the legality being disputed on the ground that, though the capture had taken place on the high sea, the ship itself, by the boats of which it had been effected, had been lying in Prussian waters at the time of the capture.
"I am inclined to think," says Sir William Scott, "on an inspection of the charts, and on healing what has been urged, that she was lying within the limits to which neutral immunity is usually conceded. She was lying in the eastern branch of the Eems, within what may, I think, be considered as a distance of three miles at most from East Friesland. An exact measurement cannot easily be obtained, but in a case of this nature in which the Court would not willingly act with an unfavourable minuteness towards a neutral state, it will be disposed to calculate the distance very liberally, and more especially as the spot in question is a sand covered with water only on the flow of the tide, but immediately connected with the land of East Friesland, and, when dry, may be considered as making part of it. I am of opinion that the ship was lying within those limits in which all direct hostile operations are by the law of nations forbidden to be exercised."
Lord Stowell certainly here seems to have considered - though it was scarcely necessary to the decision of the case before him, as the place in question at low water became part of the adjacent land, that, to the extent of three miles, the sea adjoining the shore of a neutral state must be considered as neutral water. But it should be remarked that the three-mile distance had at this time been adopted in a series of treaties (as has already been mentioned) as the extent of neutral waters. It by no means follows that the great jurist would have held it to be part of the territory of the neutral state to the extent to which the doctrine now contended for would carry it. It is plain to any one who carefully peruses the judgment of Lord Stowell that that judgment was carefully confined to the matter of neutrality. Speaking of neutral waters, he says, "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."
In the case of The Brig Ann (2), by an Act of Congress an embargo had been laid on "all ships and vessels in the ports and
(1) 3 C. Rob. 162.
(2) 1 Gallison 62.
places within the limits and jurisdiction of the United States." The vessel had been seized by the collector of the port of Newburyport, and libelled in the district court, for having sailed on a voyage to Jamaica, contrary to the Act. It appeared that the brig had arrived off the port and anchored within two or three miles of the shore; and, after taking in provisions, stores, and water, had sailed with cargo for Jamaica. On her return to the United States, she was seized as has been stated. Story, J., in delivering judgment, says:
"As soon as the Ann arrived off Newburyport, and within three miles of the shore, it is clear that she was within the acknowledged dominion of the United States. All the writers upon public law agree that every nation has exclusive jurisdiction to the distance of a cannon-shot or marine league over the waters adjacent to its shores" - for which position, however, he cites no other authority than that of Bynkershoek - "and this doctrine," he continues, "has been recognised by the Supreme Court of the United States" - (for which he cites the case of Church v. Hubbard (1), which case has been already referred to, and which, as we have seen, proceeded on a totally different principle). "Such waters," Justice Story adds, "are considered as part of the territory of the sovereign." "The Ann was certainly in a place within the jurisdiction of the United States."
This, it is true, was the decision of a single judge, but it was that of a very eminent jurist, whose opinion is entitled to great respect. But it is to be observed that the ship in question was an American ship which owed obedience to the American law.
In the case of The Leda (2), the three-mile distance was held to be included in a provision in a 460 of the Merchant Shipping Act (17 & 18 Vict. c. 104) as to disputes arising with respect to salvage in "the United Kingdom." Distinguishing salvage as referred to in this section from assistance rendered to any vessel stranded on the shore, or in any way in distress on the shore of any sea or tidal water within the limits of the United Kingdom, provided for by s. 458, Dr. Lushington, in giving judgment, says:
"Then arises another question, - what are the limits of the United Kingdom, according to the intention and true construction of the statute? Now, the only answer I can conceive to that question is - unfortunately, it is one which must be answered somehow or other - the land of the United Kingdom and three miles from the shore. Such I apprehend to be the utmost extent to which I can go; for, neither in law nor in common parlance, is the high sea at a greater distance from shore than three miles called the United Kingdom."
(1) 2 Cranch (U.S.), 234.
(2) Sw. Adm. 42.
We have here to a certain extent a judicial recognition of the three-mile principle, but the decision had not, it should be observed, any reference at all to foreign ships.
The application of this statute, when a foreigner resorts to the Courts of this country for redress, may be said to rest on a different principle. In the case of The Vernon (1), Dr. Lushington held that foreigners resorting for redress, in cases of collision, to the Courts of this country, must be bound by the regulations as to pilotage by reason of their seeking the protection of English law. A Norwegian vessel, the Alsen, had been damaged in a collision with the Vernon, an English vessel, and it had been decided by Trinity Masters that the Vernon was alone to blame, through the fault of the pilot who had charge of the ship. The defence was, that at the time of the collision the Vernon had had a pilot on board, in conformity with the Pilotage Acts. To this it was answered on the part of the plaintiffs, that a foreign shipowner could not be prejudiced by the obligation of the British owners, the defendants, to take a pilot, by the English law. But it was held that a foreigner resorting to a local Court for redress must take the remedy according to the lex fori, as being the only law which that tribunal is authorized to administer; consequently, that what would have been a good defence to the foreign vessel, if defendant in the suit, was equally a defence to the owner of a British vessel when sued by the owner of the foreign ship.
"Upon the general principles of international law," says Dr. Lushington, "whoever sues in the court of any country must take the, remedy which the law of that country allows. If a contract is made abroad, it may be expounded by the law of the country where it was made, or by the law of the country where it is to be executed; but where a remedy is sought to be obtained, the party must take it according to the law of that country in which it is to be enforced."
In the case of General Iron Screw Colliery Co. v. Schurmanns (2) it was, however, held, without recurrence to the principle of the foregoing decision, that the limitation on the liability of a shipowner in a case of collision, created by s. 504 of the Merchant Shipping Act (17 & 18 Vict. c. 104), applied to a case of damage done by a British to a foreign vessel, where the collision occurred within three miles of the English coast. Wood, V.C., who, in the
(1) 1 Wm. Rob. 316.
(2) 1 J. & H. 180.
prior case of Cope v. Doherty (1), had, as we have seen, held, where one foreign ship had been damaged by another on the ocean, that the statute did not apply, on the ground that the foreign ship could not be abridged of its rights by an Act of the British legislature, here held that the statute took effect, the collision having happened within the three miles, although no mention of the three-mile distance is made in the enactment in question. He 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. Whether this limit was determined with reference to the supposed range of cannon, on the principle that the jurisdiction is measured by the power of enforcing it, is not material, for it is clear, at any rate, that it extends to the distance of three miles; and many instances may be given of the exercise of such jurisdiction by various nations. This being so, one would certainly expect that that recognised limit would be the extent of the jurisdiction over foreign ships which the Merchant Shipping Act would purport to exercise. In dealing with so large a subject, the natural desire of the legislature would be to exert all the jurisdiction which it could assert with a due regard to the rights of other nations." Further on 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."
There is here, no doubt, a clear recognition of the three-mile principle for certain purposes; but, as in the preceding case, the foreigner was seeking redress by the application of the local law. The question was as to the construction of an Act of Parliament, and whether the Act, general in its terms, included a foreign vessel within the three-mile distance, and the language of the learned Vice-Chancellor is certainly very far from saying that the sea in question, without the intervention of the legislature, is to be taken
(1) 4 K. & J. 367; 2 D. & J. 614.
to be the territory of the local state for all purposes whatsoever, so that, independently of legislation, the local law will apply universally within it.
The decision just cited would, however, appear to be scarcely reconcilable with those of Lord Stowell and Sir John Nicholl in former cases. In the case of The Carl Johann, referred to by Sir John Nicholl in the case of The Girolamo (1), where a Swedish vessel had run down an English one, and the registrar's report as to the amount of the damage was objected to, on the ground that the amount of the damage as reported exceeded the value of the ship and freight, to which, by the Act then in force, 53 Geo. 3, c. 159, the liability of the shipowner was limited, Lord Stowell held -
"That the new rule introduced by 53 Geo. 3 was one of domestic policy and that with reference to foreign vessels, it only applied to cases where the advantages and disadvantages of such a rule were common to them and to British vessels; that if all states adopted the same rule, there would be no difficulty, but no such general rule was alleged; that if the law of Sweden adopted such a rule it would apply to both countries, but that Sweden could not claim the protection of the statute without affording a similar protection to British subjects."
He therefore dismissed the petition on behalf of the Carl Johann, and finally condemned her owners to make good the damage reported.
"This judgment," says Sir John Nicholl, observing upon it, "appears to be a direct authority that these Acts, however binding in the municipal courts, nay, possibly in this Court, as between subject and subject, cannot be set up by a foreign ship in this jurisdiction."
In the case of The Nostra Signora de los Dolores (2), Lord Stowell held that foreigners, when suing British subjects in the Court of Admiralty, on a claim arising out of and depending on the law of nations, were not bound by our municipal law.
A suit having been instituted to obtain restitution and damages for the illegal capture of a Spanish ship by an English privateer, it appeared that the name of a deceased party, whose representative was a defendant in the suit, though he was in fact a part owner, had not been put on the register in conformity with the Act 26 Geo. 3, c. 60. An objection having been taken
(1) 3 Hagg. Adm. 186-7.
(2) 1 Dodson, 290.
to the liability on this ground, Lord Stowell, in giving judgment, says:
"It is certainly true that the Act of Parliament, commonly called Lord Liverpool's Act (26 Geo. 3, c. 60), makes it necessary that the name of the owner should appear in the register; and it has been decided in a variety of cases, and is to be taken as clear and established law, that third parties, if British subjects, have no claim on any but the person registered as owner. But I am yet to learn that this rule of law is applicable to foreigners, who are not bound by the municipal regulations of this country. This is a question of the law of nations; and the party complainant, being a foreigner, comes to a Court which has to administer that law. The statute was passed for reasons of domestic policy, and all its regulations are of a domestic description. Being a British statute, it may well bind all the subjects of this country, because it emanates from an authority which all British subjects are bound to obey; but, as against the subjects of other countries, it has no such force; nor has any authority been cited, either from the decisions of the Courts of Common Law or of Chancery, to shew that it has been so considered. I do not recognise the applicability of those cases which have been determined between British subjects to such a case as this, which is founded on the law of nations, is brought on the complaint of a person not subject to our laws, and is to be tried in a Court whose duty it is to administer the law of nations."
Another case referred to as a judicial recognition of the three-mile zone is that of Reg. v. Lesley. (1) In this case, the defendant, a British subject and master of a British ship, was indicted for the false imprisonment of certain persons, Chilian subjects, whom, under a contract with the Chilian government, he had taken on board his ship, then lying within a mile of the town of Valparaiso, and conveyed as prisoners to Europe. It was held that, for so much of the imprisonment as took place in the Chilian waters, the defendant, having acted by the authority of the Chilian government - the acts of which towards its own subjects must be taken to be lawful - could not be held liable; but that for its continuance when beyond those waters, the imprisonment there being without lawful authority, he was liable to be convicted. It was assumed on the argument before us that, as the vessel in question was lying a mile from the shore, the Court, in Reg. v. Lesley (1), must have proceeded on the recognition of the three-mile principle; but no reference to this principle is made throughout that case. It was not disputed on either side that the place in question was within Chilian territory. In the contract
(1) Bell, Cr. C. 220.
between the Chilian government and the defendant, the ship is to sail from the "port of Valparaiso." In one of the counts of the indictment the place is described as the "port of Valparaiso." The probability is that, though a mile from the shore, the place where the ship lay was within the port. No question was raised as to it, and the three-mile jurisdiction is nowhere referred to. The case is therefore no authority for the doctrine contended for.
In addition to the foregoing authorities, one or two judicial, or, perhaps, I should rather say extra-judicial, dicta are also cited as giving authority to the doctrine. In the case of the Forty-nine Casks of Brandy (1), in which there was a claim on the part of the lord of a manor to wreck beyond the limits of the shore as against the Crown, Sir John Nicholl says:
"As between nation and nation, the territorial right may, by a sort of tacit understanding, be extended to three miles. But that rests on different principles, protection to fishing, to coast trade, danger from hostilities. But no one ever heard of the body of a county extending three miles into the sea."
This can scarcely be deemed an authority for the position that all persons within the three miles, whether subjects or not, are amenable to the criminal law.
In Gammell v. Commissioners of Woods and Forests (2), in the House of Lords, in which the exclusive right of the Crown to the salmon fishery on the coast of Scotland was in question, Lord Wensleydale uses the expression,
"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 - that which is under the dominion of the country by being within cannon range - and so capable of being kept in perpetual possession."
But this was said in order to meet a difficulty, suggested by Lord Cranworth, as to the distance to which the claim to such a fishery might be extended. It was wholly unnecessary to the question before the House, which had reference to an alleged right of the Crown of Scotland, as one of its prerogatives, to the exclusive right to the fishing for salmon off the coast of that country, and had nothing whatever to do with distance or sovereignty over a territorial sea. Still, it shews that Lord Wensleydale had adopted as law the rule commonly received among the foreign jurists.
(1) 3 Hagg. Adm. 259.
(2) 3 Macq. 465.
"Within British jurisdiction," says Dr. Lushington, in the case of The Annapolis (1), "namely, within British territory, and at sea within three miles from the coast, and within all British rivers intra fauces, and over foreigners in British ships, I apprehend that the British Parliament has an undoubted right to legislate." I can only cite this as a dictum of the learned judge, as it was unnecessary to the decision, which, as we have seen, had reference to foreign ships entering British ports, and thereby voluntarily subjecting themselves to British law and the jurisdiction of British courts. At the same time I have no desire whatever to quarrel with this position, as it amounts only to an assertion of the power of legislation, which, as I have more than once observed, is not involved in the present controversy.
In the case of the Whitstable Fishers (2), a question having arisen as to the validity of an alleged grant by the Crown of an oyster fishery in the bed of an arm of the sea, Erle, C.J., observes:
"The soil of the sea-shore to the extent of three miles from the beach is vested in the Crown, and I am not aware of any rule of law which prevents the Crown from granting that which is vested in itself."
The learned Lord Chief Justice overlooked the fact that the time when the grant was supposed to have been made was centuries before the idea of a three-mile belt of sea had been thought of; but the observation shews that the principle had been adopted by him.
On the other hand, in the case of The Saxonia (3), it was held by the Judicial Committee of the Privy Council, upholding a decision of Dr. Lushington, in a case of collision occurring in the Solent, within three miles of the shore, that, as foreign ships had the right of navigating through this water, such a ship passing through it was not affected by the rules as to navigation established by the Merchant Shipping Act. This case is a very strong authority for the position that a foreign vessel having a right of passage within three miles of the shore, and not being bound to a British port, cannot be held liable under the local law by an English Court.
(1) 1 Lush. Adm. 306.
(2) 11 C. B. (N.S.) 387.
(3) 1 Lush. Adm. 310.
One common observation arises on all these decisions, though, perhaps, not on all these dicta. They all arise on the construction of Acts of Parliament. In no instance has the judge been called upon to decide how far without legislation the law of this country can be applied to foreigners on the littoral sea, which is the question we are called upon to decide. They are, therefore, but of little avail to the decision of this question.
Taken together, decisions and dicta no doubt shew that the views and opinions of the foreign jurists as to a territorial sea have been received with favour by eminent judicial authorities of this country, and that the doctrine respecting it has been admitted in the construction of statutory enactments; but none of them go the length of establishing, or even suggesting, that, independently of statute, the criminal law of England is applicable to the foreigner navigating these waters.
But the difficulties which stand in the way of the prosecution are not yet exhausted. A technical difficulty presents itself, which appears to be of a formidable character. Assuming everything, short of the ultimate conclusion, to be conceded to the prosecution - granting that the three-mile zone forms part of the territory or realm of England, and that without parliamentary interference the territorial sea has become part of the realm of England, so that jurisdiction has been acquired over it, the question arises - In whom is the jurisdiction? The indictment alleges that the offence was committed on the high seas. To support this averment the place in question must still remain part of the high sea. But if it is to be held to be the high sea, and so within the jurisdiction of the admiral, the prosecution fails, if the admiral never had jurisdiction over foreigners in foreign ships, the proof of which totally fails, and the negative of which, I think, must be considered as established: and no assent on the part of foreign nations to the exercise of dominion and jurisdiction over these waters can, without an Act of Parliament, confer on the admiral or any other judge of this country a larger jurisdiction than he possessed before. If the littoral sea is to be considered territory - in other words, no longer high sea - the present indictment fails, and this, whether the part in question has become part of a county or not. The only distinction known to the law of England,
as regards the sea, is between such part of the sea as is within the body of a county and such as is not. In the first there is jurisdiction over the foreigner on a foreign ship; in the other, there is not. Such a thing as sea which shall be at one and the same time high sea and also part of the territory of the realm, is unknown to the present law, and never had an existence, except in the old and senseless theory of a universal dominion over the narrow seas.
To put this shortly. To sustain this indictment the littoral sea must still be considered as part of the high seas, and as such, under the jurisdiction of the admiral. But the admiral never had criminal jurisdiction over foreign ships on the high seas. How, when exercising the functions of a British judge, can he, or those acting in substitution for him, assume a jurisdiction which heretofore he did not possess, unless authorized by statute? On the other hand, if this sen is to be considered as territory, so as to make a foreigner within it liable to the law of England, it cannot come under the jurisdiction of the Admiralty.
In the result, looking to the fact that all pretension to sovereignty or jurisdiction over foreign ships in the narrow seas has long since been wholly abandoned - to the uncertainty which attaches to the doctrine of the publicists as to the degree of sovereignty and jurisdiction which may be exercised on the so-called territorial sea - to the fact that the right of absolute sovereignty therein, and of penal jurisdiction over the subjects of other states, has never been expressly asserted or conceded among independent nations, or, in practice, exercised and acquiesced in, except for violation of neutrality or breach of revenue or fishery laws, which, as has been pointed out, stand on a different footing - as well as to the fact that, neither in legislating with reference to shipping, nor in respect of the criminal law, has parliament thought proper to assume territorial sovereignty over the three-mile zone, so as to enact that all offences committed upon it, by foreigners in foreign ships, should be within the criminal law of this country, but, on the contrary, wherever it was thought right to make the foreigner amenable to our law, has done so by express and specific legislation - I cannot think that, in the absence of all precedent, and of any judicial decision or authority applicable to
the present purpose, we should be justified in holding an offence, committed under such circumstances, to be punishable by the law of England, especially as in so holding we must declare the whole body of our penal law to be applicable to the foreigner passing our shores in a foreign vessel on his way to a foreign port.
I am by no means insensible to the argument ab inconvenienti, pressed upon us by the Solicitor General. It is, no doubt, desirable, looking to the frequency of collisions in the neighbourhood of our coasts, that the commanders of foreign vessels, who, by unskilful navigation or gross want of care, cause disaster or death, should be as much amenable to the local law as those navigating our own vessels, instead of redress having to be sought in the, perhaps, distant country of the offender. But the remedy for the deficiency of the law, if it can be made good consistently with international law - as to which we are not called upon to pronounce an opinion - should be supplied by the action of the legislature, with whom the responsibility for any imperfection of the law alone rests, not by a usurpation on our part of a jurisdiction which, without legislation, we do not judicially possess.
This matter has been sometimes discussed upon the assumption that the alternative of the non-exercise of jurisdiction on the part of our Courts must be the total impunity of foreigners in respect of collision arising from negligence in the vicinity of our coast. But this is a mistaken view. If by the assent of other nations the three-mile belt of sea has been brought under the dominion of this country, so that consistently with the right of other nations it may be treated as a portion of British territory, which, of course, is assumed as the foundation of the jurisdiction which the Courts of law are here called upon to exercise, it follows that Parliament can legislate in respect of it. Parliament has only to do so, and the judges of the land will, of course, as in duty bound, give full effect to the law which Parliament shall so create. The question is, whether legislative action shall be applied to meet the exigency of the case, or judicial authority shall be strained and misapplied in order to overcome the difficulty. Every such usurped exercise of judicial power is, in my opinion, a violation of fundamental principles, and in the highest degree unconstitutional. The responsibility is with the legislature, and there it must rest.
Having arrived at this conclusion, it becomes necessary to consider the second point taken on the part of the Crown, namely, that though the negligence of which the accused was guilty occurred on board a foreign ship, yet, the death having taken place on board a British ship, the offence was committed within the jurisdiction of a British Court of justice. This is the point insisted on by my Brothers Denman and Lindley, with the somewhat hesitating and reluctant assent of the Lord Chief Justice of the Common Pleas. I find myself compelled to dissent altogether from their opinion. In considering this question it is necessary to bear in mind - which I am disposed to think has not always been done - that we must deal with this part of the case without any reference to the theory of the three-mile zone, and (as was very properly admitted by the Solicitor General) as though the two ships had met, and the occurrence had happened, on the ocean.
The argument rests mainly on the authority of Reg. v. Coombe (1), in which, on a trial for a murder under an Admiralty commission, it was held by all the judges that, where a shot had been fired from the shore at a person in a vessel on the sea, and had killed him, as the death took place on the sea, the offence was properly cognisable under an Admiralty commission.
The case of the United States v. Davis (2) is, in like manner, an authority in favour of the view that where a person, firing a gun from a ship, kills a person on board another ship, the offence is in point of law committed on board the latter. Indeed this case goes much further than Reg. v. Coombe (1), as it was held that, the two ships having been lying in the waters of a local state, the person causing the death under such circumstances was amenable to the local law alone, and not to that of the country to which his ship belonged. The defendant was indicted before a circuit court of the United States for manslaughter. He was the master of an American ship, lying in the harbour of Raiatia, one of the Society Islands. A disturbance having arisen on board the ship, the defendant took his gun in hand, and the gun going off - whether fired purposely or not was uncertain - a man on board another vessel was unintentionally killed. The Court held, on
(1) 1 Lea. Cr. C. 388.
(2) 2 Sumner, 482.
the authority of Coombe's Case (1), that the offence, if any, had been committed on board a foreign vessel in the jurisdiction of a foreign government, and that an American court had, therefore, no jurisdiction to try him.
The ratio decidendi in these cases does not appear in the reports; and it becomes desirable, therefore, to see by what principle the decision in such a case should be governed.
Now, homicide, whether it takes the form of murder or of manslaughter, necessarily involves two things essentially distinct - the act of the party killing, as the cause of the death, and the death of the party killed, as the effect of such act. Both are necessary to constitute the crime. But it is obvious that the act of the party killing may take place in one jurisdiction, the death of the party killed in another. A person may be wounded on the sea, and may die on the shore, or vice vers. He may be wounded in England; he may die in Scotland. In which is the offence committed? As the blow was struck in the one, while the death, without which the offence is not complete, took place in the other, I answer, in neither; and the old authorities who held at common law, before the difficulty arising from divided jurisdictions had been got over by express legislation, that where the wound was inflicted on the sea, and the person struck died on the shore, or vice vers - or where the wound was inflicted in one county, and the death took place in another - the offender could be tried in neither, because in neither had the entire offence been committed - reasoned, in my opinion, logically, and, in point of principle, rightly. These cases are not, however, in point to the one before us, and, if I advert to them, it is only to clear the way as I advance. We have, in this instance, not the case of the blow or wound in one jurisdiction, and the death in another; but, as in Reg. v. Coombe (1), one in which the act causing the death begins in one jurisdiction and extends into another, in which it inflicts the blow or wound, from which, as its cause, death ensues. When a man strikes a blow with a club, or inflicts a wound by the thrust of a sword, or the stab of a knife, or blows out another's brains by putting a pistol to his head, the act takes effect immediately. If he hurls a stone, or discharges a bullet from a gun or pistol at
(1) 1 Lea. Cr. C. 388.
another person, at a distance, the instrument he uses passes from him; the stone or bullet, having left his hand, has to make its way through a given space before it strikes the blow it is intended to inflict. But the blow is as much the act of him who casts the stone, or fires the gun, as though it had taken effect immediately. In such a case the act, in lieu of taking effect immediately, is a continuing act till the end has been effected, that is, till the missile has struck the blow, the intention of the party using it accompanying it throughout its course. The act must be taken to be the act of the party in the effects it was intended to produce, till its agency has become exhausted and its operation has ceased. When, therefore, a person being in one jurisdiction fires a shot at a person who is in another, as was the case in Reg. v. Coombe (1), it may well be held that the blow struck by the bullet is an act done in the jurisdiction in which the bullet takes effect. Whether the converse of the proposition will equally hold - whether it can equally be said that the continuing act is not done in the jurisdiction in which it originates, and in which the missile is set in motion - in other words, whether the case of United States v. Davis (2) was rightly decided, is a different question, as to which I do not think it necessary now to express an opinion beyond saying that, should the question arise, it would be deserving of very serious consideration. It is enough for the present purpose to say that Reg. v. Coombe (1) was, in my opinion, rightly decided; and I think the same principle would apply where the master of a vessel purposely ran down another, and by so doing caused the death of a person on board. For, though his immediate act is confined to running his ship against the other, it is, nevertheless, his act which causes the ship run down to sink. It is as much his act which causes the death of the person drowned, as though he had actually thrown such person into the water. If, therefore, the defendant had purposely run into the Strathclyde, I should have been prepared to hold that the killing of the deceased was his act where the death took place, and, consequently, that the act - in other words, the offence of which he has been convicted - had been committed on board a British ship. Whether the same principle would apply to a case of manslaughter, arising
(1) 1 Lea. Cr. C. 388.
(2) 2 Sumner, 482.
from the running down of another ship through negligence, or to a case where death is occasioned by the careless discharge of a gun, is a very different thing, and may, indeed, admit of serious doubt. For, in such a case, there is no intention accompanying the act into its ulterior consequences. The negligence in running down a ship may be said to be confined to the improper navigation of the ship occasioning the mischief; the party guilty of such negligence is neither actually, nor in intention, and thus constructively, in the ship on which the death takes place.
But let us assume the contrary: let us take the drowning of the deceased to have been the act of the defendant done on board a British vessel. Is this conclusive of the question? By no means. The subtle argument which would extend the negligence committed in one ship to another in which it produces its effect, finds its appropriate answer in reasoning, which, though perhaps also savouring of subtlety, is yet directly to the purpose, and must not be overlooked. For the question is - and this appears to me to have been lost sight of in the argument - not whether the death of the deceased, which no doubt took place in a British ship, was the act of the defendant in such ship, but whether the defendant, at the time the act was done, was himself within British jurisdiction. But, in point of fact, the defendant was, at the time of the occurrence, not on board the British ship, the Strathclyde, but on a foreign ship, the Franconia. And here we must remember that, ex hypothesi, we have to deal with the case on the assumption that both the vessels were on the high seas, and not in British waters. But, though, as we have just seen, an act, begun in one place or jurisdiction, may extend into another, it is obvious that the person doing such continuing act cannot himself be at the time in both. A man who, being in field A, throws a stone at another, who is in field B, does not thereby transfer himself to the latter. A man who fires a shot from the shore at one who is on the sea still remains on the shore, and vice vers. One who, from the bank of a river dividing two territories, fires a rifle shot at a person on the opposite side, cannot be said to be in the territory where the shot strikes its object. One who from the deck of a vessel, by the discharge of a gun, either purposely or through negligence, kills or wounds another, is not thereby transported from the deck of his
own vessel to that of the other. But, in order to render a foreigner liable to the local law, he must, at the time the offence was committed, have been within British territory if on land, or in a British ship if at sea. I cannot think that if two ships of different nations met on the ocean, and a person on board of one of them were killed or wounded by a shot fired from the other, the person firing it would be amenable to the law of the ship in which the shot took effect. According to the doctrine of Lord Coke in Calvin's Case (1), protection and allegiance are correlative: it is only where protection is afforded by the law that the obligation of allegiance to the law arises; or, as I prefer to put it, it is only for acts done when the person doing them is within the area over which the authority of British law extends, that the subject of a foreign state owes obedience to that law, or can be made amenable to its jurisdiction. But for the opinion expressed by my Brother Denman, I should have thought it beyond all dispute that a foreign ship, when not in British waters, but on the high seas, was not subject to our law. Upon this point I had deemed all jurists unanimous, and could not have supposed that a doubt could exist. Upon what is the contrary opinion founded? Simply upon expediency, which is to prevail over principle. What, it is asked, is to happen if one of your officers, enforcing your revenue laws, should be killed or injured by a foreigner on board a foreign ship? What is to happen if a British and foreign ship meeting on the ocean, a British subject should be killed by a shot fired from the foreign ship? In either of such cases would not the foreigner guilty of the offence be amenable to the English law? Could it be endured that he should escape with impunity? If brought within the reach of a British Court of justice, could he not be tried and punished for the offence, and ought he to be permitted to escape with impunity, or ought he not to be tried and punished for such offence? My first answer is, that the alternative is fallacious. He will not escape with impunity. He will be amenable to the law of his own country, and it is not to be presumed that the law of any civilized people will be such, or so administered, as that such an offence should escape without its adequate punishment. As regards the
(1) 7 Co. Rep.
amenability of the offender under such circumstances to our law, it will be time enough to determine the question when the case arrives. If the conviction and punishment of the offender can only be obtained at the sacrifice of fundamental principles of established law, I, for one, should prefer that justice should fail in the individual case, than that established principles, according to which alone justice should be administered, should be wrested and strained to meet it. I think, therefore, that it is not enough that the running down the Strathclyde, and so causing the death of the deceased, can be said to have been the act of the defendant on board the latter vessel, unless it can be made out that the defendant was also on board of it. But the defendant certainly was not actually, nor do I think - no intention on his part having accompanied the act - he can be said to have been, in any sense, constructively, on board the Strathclyde. If, therefore, his own vessel was not within British waters, but on the high seas, he owed no obedience to the law of this country, and cannot be punished for an infraction of it.
In the case of United States v. Davis (1) no such difficulty presented itself. Both ships were in the harbour, and therefore in the water of the local state, and the defendant was consequently amenable to the local law.
I am aware that this view is not in accordance with the decision in the American case of Adams v. The People. (2) In that case a fraud had been committed at New York by the defendant, a citizen of the state of Ohio, and residing in it, through an agent, at New York, who was wholly innocent and ignorant of the fraud. The accused set up as a defence that he was a citizen of another state, and residing in it when the alleged offence was committed, and therefore not subject to the law of New York; but the objection was overruled, on the ground that a criminal act done through the instrumentality of an innocent agent is in law the act of the principal, who may therefore be held to have committed the offence in the state in which the act was done, and, being found in that State, will be liable to be there tried and punished.
But the judgment in that case which, by the way, is remarkable for much loose reasoning and idle talk about the law of nature, is
(1) 2 Sumner, 482.
(2) 1 Comst. (N.Y.) 173.
not, to my mind, at all satisfactory. It entirely overlooks what, in my view, is the turning point in the case, namely, that though the act of the accused had been committed within the jurisdiction, the defendant, being a foreigner, and having been out of the jurisdiction when the act was done, owed no allegiance to the law of New York, and was not punishable under it.
Both exceptions taken on the part of the Crown to the general rule that a foreigner, committing an offence out of the jurisdiction of a country which is not his own, cannot be brought to trial in the Courts of the former, thus failing, it appears to me that the general rule must prevail, and that the defendant, having been a foreign subject, on board a foreign ship, on a foreign voyage, and on the high seas at the time the offence was committed, is not amenable to the law of this country; that there was, therefore, no jurisdiction to try him, and that, consequently, the conviction was illegal and must be quashed.
In the conflict of opinion which unfortunately exists it is a great satisfaction to me to be able to add that the late Mr. Justice Archibald, whose death the whole profession, and especially those who had the advantage of his intimacy or acquaintance, must deeply lament, and whose loss, as a most learned, enlightened, able, and conscientious judge, the public has so much reason to regret, having seen my proposed judgment, communicated to me his entire concurrence, both in the conclusion at which I had arrived, and the grounds on which it is founded. His opinion, as he is no more, cannot of course be of any avail to the defendant; but as, without it, the majority of the Court are of opinion that the conviction should be quashed, it must be quashed accordingly.
LUSH, J. I have already announced that, although I had prepared a separate judgment, I did not feel it necessary to deliver it, because, having since perused the judgment which the Lord Chief Justice has just read, I found that we agreed entirely in our conclusions, and that I agreed in the main with the reasons upon which those conclusions are founded. I wish, however, to guard myself from being supposed to adopt any words or expressions which may seem to imply a doubt as to the competency of Parliament to legislate as it may think fit for these waters. I think
that usage and the common consent of nations, which constitute international law, have appropriated these waters to the adjacent State to deal with them as the State may deem expedient for its own interests. They are, therefore, in the language of diplomacy and of international law, termed by a convenient metaphor the territorial waters of Great Britain, and the same or equivalent phrases are used in some of our statutes denoting that this belt of sea is under the exclusive dominion of the State. But the dominion is the dominion of Parliament, not the dominion of the common law. That extends no further than the limits of the realm. In the reign of Richard II. the realm consisted of the land within the body of the counties. All beyond low-water mark was part of the high seas. At that period the three-mile radius had not been thought of. International law, which, upon this subject at least, has grown up since that period, cannot enlarge the area of our municipal law, nor could treaties with all the nations of the world have that effect. That can only be done by Act of Parliament. As no such Act has been passed, it follows that what was out of the realm then is out of the realm now, and what was part of the high seas then is part of the high seas now; and upon the high seas the Admiralty jurisdiction was confined to British ships. Therefore, although, as between nation and nation, these waters are British territory, as being under the exclusive dominion of Great Britain, in judicial language they are out of the realm, and any exercise of criminal jurisdiction over a foreign ship in these waters must in my judgment be authorized by an Act of Parliament.
POLLOCK, B., and FIELD, J., concurred in the judgment of Cockburn, C.J.
Solicitor for the prosecution: Solicitor to the Treasury.
Solicitors for defendant: Stokes, Saunders, and Stokes.