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take away, or impose conditions on the right to 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.”
We should not do full justice to the importance of the decision of the majority of the Judges, if we did not notice some observations which fell from Baron Bramwell, now Lord Justice Bramwell, whose printed judgment was read by Baron Pollock.
“I am influenced," he said, "by what the Solicitor-General said we ought not to be influenced by, namely, by the possible consequences of our decision, or rather that which would follow from it, if in favour of the Crown on this point. The right we should claim, we must concede to other countries, and so I admit that whatever laws they thought fit to make, would bind our ships when within three miles of their shores, and as to our own shores in our remotest colonies, that we should be responsible for all that took place within three miles of our coasts, 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 that no such foundation, 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, there are none which suggest such a criminal jurisdiction as now claimed.”
Space will not allow us to discuss at further length this important judgment. We are in the number of those, who hold that the ratio decidendi of the majority of the Judges was right, and that the decision itself was wise, although it has been received in several quarters with dissatisfaction. If the majority of the Judges had held that the Admiral of England had criminal jurisdiction over the foreign ship by reason of its being within the three mile zone of open sea adjacent to the coast of England, the jurisdiction so asserted would have been a maimed jurisdiction, totally inadequate to satisfy the demands of justice as regards the navigation of the High Seas, which require that a culpable violation of the international sailing rules, whereby injury to life or limb has been caused, should be punishable equally, when it happens beyond the three mile zone, as within it. On the other hand, if the majority of the Judges has ruled, that by intendment of law the offence in this case had been committed within the British ship according to the decision in Combes' case (1 Leach, C. C., p. 388), and that the master of the German ship was on that account amenable to British Criminal Law, by parity of reasoning they would have indirectly decided that, if the master of a British ship should run down a foreign ship on the High Seas beyond the three mile zone, and should drown the foreign crew and passengers on board of her, he would not be amenable to British criminal law, as by intendment of law the offence would have been committed on board of a foreign vessel not within British territory, and therefore not subject to British criminal law, as decided by “the Twelve Judges” in Serva's case (1, Denison, C.C., p. 104.) The case of the Franconia will be found to be full of thorns, from whatever point of view it is sought to grapple with it judicially, and judge-made law with all its useful fictions has been declared by the judges themselves to be inadequate to remedy the wrong in such a case. In fact the criminal jurisdiction of the Admiral of England, which it has been attempted to apply to it, has been found to be a strictly national jurisdiction, which travels everywhere, indeed, on the High Seas with vessels under the British flag, but may not intrude itself into vessels navigating the High Seas under the protection of a foreign flag. It is in this respect unlike the civil jurisdiction of the Admiral, which is born of another parent, the consuetudo maris, and is International. What is wanting at present is, that as Nations have agreed that a common system of sailing regulations shall be binding internationally upon their vessels whilst navigating the High Seas, they should settle by common agreement the penalties, which should attach to a culpable violation of those regulations, in cases where injury to life and limb
has resulted therefrom, and that the Admiralty jurisdiction in respect of the enforcement of those penalties should by like agreement be declared to be International.
We propose, on a future occasion, to discuss the civil jurisdiction of the Admiralty of England in its application to another phase of the Case of the Franconia.
II.—THE LATE MR. JUSTICE ARCHIBALD.
THOMAS DICKSON ARCHIBALD was the sixth son 1 of the Hon. Samuel Archibald, LL.D., who was for many years Speaker of the House of Assembly of Nova Scotia, and subsequently Judge of the Vice Admiralty Court, and Master of the Rolls, of the same province.
His family, which was of Scotch origin, appears to have been settled in the North of Ireland in the latter part of the seventeenth century, for we find some members of it taking part in the memorable defence of Derry; and about the year 1750 one of his ancestors, afterwards well known in Nova Scotia as Major David Archibald, migrated with his family from the parish of Maghra, in the County of Londonderry, to Londonderry in the State of New Hampshire, whence he removed again in 1760 to Truro in Nova Scotia, not far from the village of Grand Pré, since celebrated in song by Longfellow.
In 1768 this David was the first militia officer appointed for Truro, as well as the first Justice of the Peace for that place; and in the latter capacity his name is still associated with many amusing stories of off-hand justice. He was also one of the earliest representatives of Truro in the General Assembly of the Province.
Samuel Archibald (the father of the subject of this memoir) having lost his father at an early age, was brought up under the care of his grandfather David. After having tried his hand at farming for a short time, finding the occupation not congenial to his taste, he became a student at Andover and Harvard; and in 1805 he was admitted an attorney and barrister of the Supreme Court of Nova Scotia. In 1806 he was elected a Member of the House of Representatives, of which body he afterwards became Speaker. He appears to have been gifted with great eloquence, and to have achieved rapid success in his profession. He was also possessed of an inexhaustible fund of humour; and, if report be true, he contributed not a little to the stock of materials so admirably handled by the late Justice Halliburton in the recorded sayings of the immortal Sam Slick. In 1824, when on a visit to England whilst Speaker of the House, he was offered a seat in the Imperial Parliament by the Marquess of Lansdowne, who was much struck with his powers; but he declined the offer, on the plea that “ being already the head of one House of Commons, it would not do for him to become the tail of another.” He was unquestionably one of the most popular men ever known in his native Province, where his memory is still cherished with regard and affection.
Thomas Dickson Archibald was born at Truro in 1817, being one of a family of nineteen children. His boyhood was passed amidst the wild and beautiful scenery of the district, which influenced his taste in after life, and the memory of which he cherished till the last, with a constant longing to revisit scenes associated in his mind with his early happy years. He studied for some years at Pictou Presbyterian College, where under the teaching of Dr. McCulloch, a worthy Scotch Professor, he received an admirable grounding in the classics, as well as a good general education. In selecting a profession his first inclination was to be a surgeon, and for some time he studied with that view, and so gained
a knowledge of surgery which was of great practical use to him in after life, especially when he was on the judicial Bench. Finding however that it was not altogether to his taste, he turned his attention to the Law, and was in 1837 admitted an attorney and barrister in the Province of Nova Scotia.
He had some amusing anecdotes to tell of this period of his career, as for instance of consultations by the river side amidst the excitement of fly fishing, and of hours of assiduous waiting in hope of the arrival of a client-only exceeded in anxiety by the fear of exposing his youth and inexperience when the hoped-for client arrived.
In the end of the year 1837, at his father's express request, he undertook a visit to Europe, and sailed accordingly from Halifax in the Persa, a brigantine of 80 tons, which was bound for Gibraltar with a cargo of salt fish, in anticipation of the coming Lent. Those were the days before the magnificent steam-ferry of our time had been established ; and for forty-eight days the Persa was driven about the Atlantic by constant storms; and as she was heavily laden, it became necessary to throw much of the cargo overboard; but the vessel afterwards happening to come upon a dead whale off • the coast of Spain, the empty fish-barrels were filled with whale oil, which more than compensated for the loss of the fish. At last Cape Spartel was sighted, and then the magnificent rock of Gibraltar, which left an indelible impression on Mr. Archibald's mind, being the first European land he ever saw. Many of his old friends will recall to mind his pictures of the Rock, which he valued so highly, and especially that one by Melby which long occupied a prominent position in his room on the old library staircase in Tanfield Court.
After travelling for some months in Italy and France, during which time his uniform as an officer of the Halifax Militia stood him in good stead, he reached England in 1838-fully intending, after deriving all the advantages available from his visit, to return to Nova Scotia and follow his profession there.