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when the Echo was found to be laden with slaves. Possession of the Echo was thereupon taken, and her crew was transferred to the Felicidade, an English midshipman with eight men being placed in charge of the latter vessel. The prisoner Serva, who had been captain of the Echo, rose with twelve other Brazilians upon the English prize crew, and killed them all. The question raised was, whether a Court of Oyer and Terminer in virtue of the criminal jurisdiction of the Admiral as transferred to it by Statute 7 & 8 Vict. ch. 3, had jurisdiction to try the prisoners for an offence committed on board the Felicidade. The majority of the judges held, that the Court of Oyer and Terminer had no authority to try a foreigner accused of having committed an offence on board of a foreign vessel not within British waters. Two of the judges so far dissented from the majority, as they thought the Felicidade was at the time of the rising against the prize crew in the lawful possession of the Queen's officers, and might be regarded as a ship of Her Majesty, but they agreed with the majority on the general principle of law, that the Court had no jurisdiction in respect of an offence committed on board of a foreign vessel on the High Seas. The Lord Chief Justice of England, in the course of his recent luminous and exhaustive judgment in R. v. Keyn, has reviewed Serva's case, and holds it to be a conclusive statement of the law of England on the subject of offences committed on board of foreign vessels on the High Seas.
We have already referred to the Statute 13 Richard 11, Stat. I., ch. 5, which was the first statute passed to restrain the authority of the Admiral's Office. It would seem, that it was found to have gone too far in restricting the criminal jurisdiction of his office, and the 15 Richard II., ch. 3, was passed, which, whilst it forbade the Admiral's Court in civil matters to take cognisance of anything arising within the body of counties as well by land as by water, enacted that nevertheless the Admiral might exercise his criminal jurisdiction “in respect of the death of a man or of a mahem 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 such rivers.” Such was the statutory adjustment of the contention between the King's Courts of Oyer and Terminer and the Court of the Admiral, until the 28 Henry VIII., ch. 15, by which the criminal jurisdiction of the Admiral's Office was transferred to special commissioners under the Great Seal, amongst whom was included the Judge of the High Court of Admiralty. This jurisdiction has since been transferred to the Central Criminal Court, by 4 and 5 William IV., and it was under that statute, that the master of the Franconia was put upon his trial at the Old Bailey according to the course of the Common Law of England on a charge of manslaughter by negligence.
It is to be observed as regards the criminal jurisdiction which was transferred from the Admiral's Court to Special Commissioners, under 28 H. VIII., c. 15, that there is no restriction imposed by the Statute upon the exercise of that jurisdiction in respect of any part of the High Seas, and as a matter of practice the jurisdiction as transferred by that Statute has been exercised in respect of offences committed on board of British vessels in any part of the High Seas, even in tidal waters flowing within the territory of foreign States. But no such jurisdiction has ever been exercised by those Courts over foreign vessels in any part of the High Seas; and if the maxim, “ de non apparentibus et de non existentibus eadem est ratio,” is to govern such a question, the non-exercise of any such jurisdiction since the Admiral's office has been established, would be conclusive against its existence. There were, however, two other points raised on behalf of the Crown in the case of R. v. Keyn, which would have taken the case out of the category of offences committed on board of a foreign ship on the High Seas. It was contended that the act of manslaughter, for which Captain Keyn was arraigned, was committed on board of the British ship; and, as such, came within the purview
of 28 Henry VIII. ch. 15. But the Lord Chief Justice of England, representing the majority of the Court, held that, it being clear that the defendant was not actually on board of the British ship, he could not be said to be by construction of law on board of it, as there was no intention on his part to run down the English ship. “In such a case,” the Lord Chief Justice said, where a party is charged with inanslaughter from running down another ship by negligence, “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 impioper navigation of the ship occasioning the mischief, and the party guilty of such negligence is neither actually, nor in intention and thus constructively, in the ship, on which the death took place.” This principle of law is very important, and, although the Lord Chief Justice admits it to savour of subtlety, yet it suggests a reasonable principle of discrimination, which is directly to the purpose, and meets the subtle argument, which would extend the negligence committed on one ship to another ship, in which it produces its effect. But the Lord Chief Justice also held, that the real question was, whether the defendant at the time when the act was done was within British jurisdiction, and owed obedience to the law of this country, so as to be punishable for an infraction of it.
All these outlying points of the case were of minor importance compared with the main argument of the Crown Counsel, namely that the place where the collision took place, though on the high seas, was British territory by reason of its being within the distance of three miles from the English coast, and that the offence was committed, to use the language of the Lord Chief Justice of the Common Pleas, “ within the Realm of England.” It is satisfactory to find that although the majority of the Court was very slender, it agreed with the Lord Chief Justice of England in a common ratio decidendi, whilst the minority of the Court, although they differed from one another in minor particulars, also agreed in a common ratio decidendi. The grounds of their opposite decisions may be briefly stated, in the language of Sir Baliol Brett on the part of the minority, and in the language of the Lord Chief Justice of England on the part of the majority.
* In the case of R. v. Combes (1 Leach, Crown Cases, 388), which was a trial for murder, the intention to kill was presumed against the smuggler, who fired a gun from the shore at a person in the preventive cutter on the sea, and killed him.
After citing a long list of authorities, Sir Baliol Brett, now Lord Justice Brett, makes the following observations :
“ I have done so," he says, (that is, I have cited these authorities) “ 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 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, recognized 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 assertions 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 re. cognised writers of different times and different countries to a reasonable proposition is sufficient evidence of a general consent of nations to that proposition. In this case I think there is a general consent of nations to a proposition with regard to the three miles of open sea adjacent to the shore of Sovereign States. I do not think that such general consent as to a distance of three miles is impeached by showing 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 the 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 navi. gation 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 Chief Justice Marshall, 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, those three miles are its territorial waters, subject to the right of property, dominion, and sovereignty. These 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 part of its country or territory as its land.”
From the opposite point of view, the Lord Chief Justice of England observes
" 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
• We venture to think, that much of the conflict between the text-writers and the decisions of the English and the American Courts has arisen from the textwriters not discriminating with sufficient care between usufructuary right and proprietary right, and that from this want of care they have assumed that instances of a nation having the usufruct of the three mile zone either by usage or by treaty furnished evidence of its having the proprietary right over it, the proof of which proprietary right would be necessary to establish its exclusive right of jurisdiction over foreign vessels using it merely for the purposes of navigation.