Concurrent jurisdiction of the common law and Admiralty. — In a case at the Admiralty session of a murder committed in a part of Milford Haven, where it was about three miles across, about seven or eight miles from the mouth of the river, or open sea, and about sixteen miles below any bridges over the river, a question was made whether the place where the murder was committed was to be considered as within the limits to which commissions granted under the 28 Hen. 8, c. 15, by law extend. Upon reference to the judges, they were unanimously of opinion that the trial was properly had. And it is said that during the discussion of the point the construction of this statute by Lord Hale (b) was much preferred to the doctrine of Lord Coke; (c) and that most, if not all, of the judges, seemed to think that the common law has a concurrent jurisdiction with the Admiralty in this haven, and in all other havens, creeks, and rivers in this realm. (d) It appeared to them that the 28 Hen. 8 applied to all great waters frequented by ships; that in such waters the admiral, in the time of Hen. 8, pretended jurisdiction; that by havens, &c., havens in England were meant to be included, though they are all within the body of some county; and that the mischief from the witnesses being seafaring men was likely to apply to all places frequented by ships. (e)

If a robbery be committed in creeks, harbours, ports, &c., in foreign countries, the Court of Admiralty indisputably has jurisdiction of it, and such offence is, consequently, piracy. (ƒ)

High and low water-mark.1-It is clear that upon the open sea

'havens,' &c., without the qualification in the first section, where the admiral has jurisdiction. One of the mischiefs recited in the first section is, that the witnesses being commonly mariners and shipmen, depart without long tarrying or protraction of time. The statute is almost in terms with 27 Hen. 8, c. 4, except that it adds treasons' to the offences. See R. v. Snape, 2 East, P. C. 807; R. v. Bayley, R. & R. 1; R. v. Amarrow, R. & R. 286. As to the admiral's jurisdiction, see 2 Hale, 12.

(b) 2 Hale, 16, 17.

(c) 3 Inst. 111. 4 Inst. 134.

(d) Bruce's case, 2 Leach, 1093. Russ. & Ry. 243. This was a case of murder. The stat. 15 Rich. 2, c. 3, gives the admiral jurisdiction to inquire of the death of a man, and of a mayhem done in great ships hovering in the main stream of great rivers, beneath the bridges of the same rivers nigh to the sea, and in none other places of the same rivers; which jurisdiction is only concurrent with, and not in exclusion of, the common law. 1 East, P. C. 368. It is most probable that pountz in the 15 Rich. 2, c. 3, means points and not bridges. In 'A description of the River Thames' (Longman,

1752), it is said that the Lord Mayor of London used to summon a jury four times a year to make inquisition after all offences committed on the Thames and Medway up the river as far as Staines Bridge, and down the river as far as the points of it next the sea,' and that the jurisdiction of the City of London in the river of Thames from Staines Bridge westward unto the points of the river next to the sea eastward, appeareth to belong to the City.' All this appears to be taken from old charters. In 1347 it appears that persons setting kiddels ultra Genland (Yantlett) versus mare were fined. P. 94, 95, 96. In later times Yendall or Yenlet seems from old charters to be the limit. P. 139. All this seems to show that pountz means points, not bridges.

(e) MS. Bayley, J.

(f) R. v. Jemot, Old Bailey, 28th Feb. 1812. MS. Jerv. Arch. 366, edit. 15. The newspaper note (Times, Feb. 29, 1812), calls the offence larceny. It took place from a British ship in a natural harbour at Cuba, and was tried at an Admiralty sessions at the Old Bailey. The prisoner was sentenced to death. R. v. Carr, 10 Q. B. D. 76, at p. 83.

AMERICAN NOTE.

1 Nations hold possession of the ocean as far as a cannon ball will reach from the shore, which is estimated to be a marine league, or about three and a half miles.

It is suggested that the distance should, in reason, be greater, since the great improvements in gunnery. Bishop, i. s. 104.

shore the common law and the Admiralty have alternate jurisdiction between high and low water-mark; (g) but it is sometimes a matter of difficulty to fix the line of demarcation between the county and the high sea in harbours, or below the bridges in great rivers. The question is often more a matter of fact than of law, and determi nable by local evidence; but some general rules upon the point are collected by Mr. East. He says that 'in general it is said that such parts of the rivers, arms, or creeks, are deemed to be within the bodies of counties where persons can see from one side to the other. Lord Hale, in his treatise De jure maris, says that the arm or branch of the sea which lies within the fauces terræ, where a man may reasonably discern between shore and shore, is, or at least may be, within the body of a county. Hawkins, however, considers the line more accurately confined, by other authorities, to such parts of the sea where a man, standing on the one side of the land, may see what is done on the other; and the reason assigned by Lord Coke in the Admiralty case (h) in support of the county coroner's jurisdiction, where a man is killed in such places, because that the county may well know it, seems rather to support the more limited construction. But at least, where there is any doubt, the jurisdiction of the common law ought to be preferred.' (i)

A bay within headlands may be within the Admiralty jurisdiction. Where a murder was committed in Roundstone Bay, and it appeared that the place in question was within the county of Galway, and that the headlands bounding the bay were so situated that a man could see from the one to the other, and that the place in question would fall within a straight line drawn from the one headland to the other, and that in that part of the bay there were fifteen fathoms water, and that a ship of 120 tons could sail there; but there was no evidence of its having been frequented by shipping, or of any Admiralty process having ever been executed within it; it was held by the judges in Ireland that the murderer was rightly tried under an Admiralty commission. (1)

Penarth Roads case. But upon an indictment for maliciously wounding in the county of Glamorgan, it appeared that the prisoners were Americans, and they and the person wounded were part of the crew of the American ship 'Gleaner,' which sailed from the docks of Cardiff to an anchorage in Penarth Roads, and the offence was committed shortly before she arrived at that anchorage, when the ship was three quarters of a mile from land, in a place never left dry by the tide; but she was within a quarter of a mile of the land which is left dry by the tide. The shore of the county of Glamorgan extends many miles up and down the Bristol Channel from the place where the offence was committed. The spot in question was in the Bristol Channel, between the Glamorganshire and Somersetshire coasts, and was about ten miles from the opposite coast of Somersetshire. Two islands, called the Flat and Steep Holmes, are outside the anchorageground, and farther from the shore than it is, but not lower down the

(g) 3 Inst. 113. 2 Hale, 17; and see 2 Hawk, c. 9, s. 14, as to the jurisdiction of the coroner in offences on the seashore. Anonymous, 1 Lewin, 242.

(h) 13 Co. 52.

(i) 2 East, P. C. c. 17, s. 10, p. 803, 804.

(j) R. v. Mannion, 2 Cox, C. C. 158.

Channel, being abreast of the anchorage-ground. When the offence was committed the ship was inside, and about two miles from, the Flat Holmes, and four or five miles from the Steep Holmes, and was within the Lavernock Point in Penarth Roads, but outside Penarth Head. Penarth Head and Lavernock Point form a bay. At Penarth Head persons can see from one to the other, and could see what a vessel was doing from one to the other, but could not see the people from one to the other. From where the ship was persons could see people at Lavernock, and see what they were doing if they took particular notice of them, and they could see the coast of Somersetshire on a clear day. The mouth of the Severn is at King's Road, higher up the Channel. The Holmes are part of the parish of St. Mary's, Cardiff, and taxes have been collected from the occupiers of Flat Holmes for St. Mary's parish. By an order of the Commissioners of Her Majesty's Treasury, the port of Cardiff has been fixed so as to include the spot in question. It was objected that the prisoners could not be tried in the county of Glamorgan, as there was no proof that the offence was committed in that county; but it was held that the offence was committed in that county. Cockburn, C. J.: 'The question is, whether the part of the sea on which the vessel was at the time when the offence was committed forms part of the body of the county of Glamorgan; and we are of opinion that it does. The sea in question is part of the Bristol Channel, both shores of which form part of England and Wales, of the county of Somerset on one side, and the county of Glamorgan on the other. We are of opinion that, looking at the local situation of this sea, it must be taken to belong to the counties respectively by the shores of which it is bounded; and the fact of the Holmes, between which and the shore of the county of Glamorgan the place in question is situated, having always been treated as part of the parish of Cardiff, and as part of the county of Glamorgan, is a strong illustration of the principle on which we proceed, namely, that the whole of this inland sea between the counties. of Somerset and Glamorgan is to be considered as within the counties, by the shores of which its several parts are respectively bounded. We are, therefore, of opinion that the place in question is within the body of the county of Glamorgan.' (k)

Stealing at sea and bringing on shore. Formerly the question, whether the fact was committed on the sea or within the body of a county, was of importance; for if it turned out that the goods were taken anywhere within the body of a county, the commissioners under the statute of Hen. 8 had no jurisdiction to inquire of it; and if it appeared that the goods were taken at sea, and afterwards brought on shore, the offender could not be indicted as for a larceny in that county into which they were carried, because the original felony was not a taking of which the common law takes cognizance. (1) And the 39 Geo. 3, c. 37, infra, relates only to offences committed on the high seas, and out of the body of any county. (m)

(k) R. v. Cunningham, Bell, C. C. 72. (1) East, P. C. c. 17, s. 12, p. 805. 3 Inst. 113. R. v. Prowes, 1 M. C. C. R. 349. R. v. Madge, 9 C. & P. 29.

(m) But as this Act and the 24 & 25 Vict. c. 96, s. 115, make a larceny on the

sea of the same nature as if it had been committed on land, and triable by jury, it should seem that the ground of the former decisions fails and therefore they ought to be considered as no longer binding.

Where a prisoner was indicted for stealing three chests of tea out of the Aurora,' of London, on the high seas, and it was proved that the larceny was committed while the vessel lay off Wampa, in a river, twenty or thirty miles from the sea, but there was no evidence as to the tide flowing, or otherwise, at the place where the vessel lay, it was held, from the circumstance that the tea was stolen on board the vessel, which had crossed the ocean, that there was sufficient evidence that the larceny was committed on the high seas. (n)

The 39 Geo. 3, c. 37, s. 1, provides, that all and every offence and offences, which, after the passing of this Act, shall be committed upon the high seas out of the body of any county of this realm, shall be, and they are hereby declared to be offences of the same nature respectively, and to be subject to the same punishments respectively, as if they had been committed upon the shore, and shall be inquired of, heard, tried, and determined and adjudged in the same manner as treasons, felonies, murders, and confederacies are directed to be by the same Act' (28 Hen. 8, c. 15, ante, p. 9).

The 46 Geo. 3, c. 54, enacts, that all treasons, piracies, felonies, robberies, murders, conspiracies, and other offences of what nature or kind soever, committed upon the sea, or in any haven, river, creek, or place, where the admiral or admirals have power, authority, or jurisdiction, may be inquired of, tried, &c., according to the common course of the laws of this realm used for offences committed upon the land within this realm, and not otherwise, in any of His Majesty's islands, plantations, colonies, dominions, forts, or factories, under and by virtue of the King's commission or commissions, under the Great Seal of Great Britain, to be directed to any such four or more discreet persons as the Lord Chancellor of Great Britain, Lord Keeper, or Commissioner for the custody of the Great Seal of Great Britain for the time being, shall from time to time think fit to appoint; and that the said commissioners so to be appointed, or any three of them, shall have such and the like powers and authorities for the trial of all such murders, &c., within any such island, &c., as any commissioners appointed according to the directions of the 28 Hen. 8, by any law. or laws then in force would have for the trial of the said offences within this realm. And it further enacts, that all persons convicted of any of the said offences so to be tried, &c., shall be liable to the same pains, &c., as, by any laws then in force, persons convicted of the same would be liable to, in case the same were tried, &c., within this realm, by virtue of any commission according to the directions of the 28 Hen. 8. (0)

By the Territorial Waters Jurisdiction Act, 1878 (41 & 42 Vict. c. 73), s. 2, An offence committed by a person, whether he is or is not a subject of Her Majesty on the open sea within the territorial waters of Her Majesty's dominions, is an offence within the jurisdiction of the Admiral, although it may have been committed on board or by means of a foreign ship, and the person who committed such offence may be arrested, tried, and punished accordingly.'

By sec. 3, Proceedings for the trial & punishment of a person who

(n) R. v. Allen, R. & M. C. C. R. 494; (0) See 12 & 13 Vict. c. 96, post. S. C., 7 C. & P. 664.

is not a subject of Her Majesty and who is charged with any such offence as is declared by this Act to be within the jurisdiction of the Admiral, shall not be instituted in any court of the United Kingdom, except with the consent of one of Her Majesty's principal Secretaries of State, and on his certificate that the institution of such proceedings is in his opinion expedient, and shall not be instituted in any of the dominions of Her Majesty out of the United Kingdom, except with the leave of the governor of the part of the dominions in which such proceedings are proposed to be instituted, and on his certificate that it is expedient that such proceedings should be instituted.'

By sec. 4, On the trial of any person who is not a subject of Her Majesty for an offence declared by this Act to be within the jurisdiction of the Admiral, it shall not be necessary to aver in any indictment or information on such trial that such consent or certificate of the Secretary of State or Governor, as is required by this Act, has been given; and the fact of the same having been given shall be presumed, unless disputed by the defendant at the trial; and the production of a document purporting to be signed by one of Her Majesty's principal Secretaries of State as respects the United Kingdom, and by the Governor as respects any other part of Her Majesty's dominions, and witnessing such consent and certificate, shall be sufficient evidence, for all the purposes of this Act, of the consent and certificate required by this Act.

Proceedings before a justice of the peace or other magistrate, previous to the committal of an offender for trial, or to the determination of the justice or magistrate that the offender is to be put upon his trial, shall not be deemed proceedings for the trial of the offence committed by such offender, for the purposes of the said consent and certificate under this Act.'

By sec. 5, Nothing in this Act contained shall be construed to be in derogation of any rightful jurisdiction of Her Majesty, her heirs or successors, under the law of nations, or to affect or prejudice any jurisdiction conferred by Act of Parliament or now by law existing in relation to foreign ships, or in relation to persons on board such ships.'

By sec. 6, 'This Act shall not prejudice or affect the trial in manner heretofore in use of any act of piracy as defined by the law of nations, or affect or prejudice any law relating thereto; and where any act of piracy as defined by the law of nations is also any such offence as is declared by this Act to be within the jurisdiction of the Admiral, such offence may be tried in pursuance of this Act, or in pursuance of any other Act of Parliament, law, or custom relating thereto.' By sec. 7, The jurisdiction of the Admiral' is defined as including 'the jurisdiction of the Admiralty of England and Ireland, or either of such jurisdictions as used in any Act of Parliament; and for the purpose of arresting any person charged with an offence declared by this Act to be within the jurisdiction of the Admiral, the territorial waters adjacent to the United Kingdom or any other part of Her Majesty's dominions shall be deemed to be within the jurisdiction of any judge, magistrate, or officer having power within such United Kingdom or other part of Her Majesty's dominions to issue warrants for arresting or to arrest persons charged with offences committed within the jurisdiction of such judge, magistrate, or officer.'