Page images
PDF
EPUB

constable's staff. The tradition at Dover is that the waterbailiff of the Corporation could not in law, and did not in fact, proceed to arrest any person on board ship without the Silver Oar. It seems probable that the little circular staff surmounted with a crown, which is used at the present time by the Deputy Marshal of the High Court of Admiralty as the emblem of his authority, was itself originally a Deputy of the little silver Oar, and was used when the little silver oar itself was otherwise engaged, and it has now come to do duty at all times for its Principal, since the time when the latter has been missing from the Archives of the High Court.

The Silver Oar of the Admiralty, and it may be observed that every Vice-Admiralty Court has its Silver Oar, is, as already remarked, of no slight historical value, as evidence of a long-established practice of the Admiralty Courts to arrest persons and vessels on the High Seas, which as between Nations has become on the one hand a duty on its part, and on the other hand a right. But within what limits is this right exerciseable by the Admiralty Courts in civil matters? We incline to the opinion that the jurisdiction of the Silver Oar of the Admiralty was originally co-extensive with the Law Maritime, and that the right of the Admiral to arrest for an offence against the Common Law of the Sea was co-extensive with the High Sea itself. For instance, the only crime known to the Common Law of the Sea is the crime of Piracy, and the right to arrest a pirate is exerciseable by the Admiral and his officers in every part of the High Seas. The right to arrest in this case travels wherever the Criminal Law of the Sea travels. But various delicts are also known to the Law Maritime, and although the primitive Jurisdiction of the Admiralty, as regards many of such delicts has become obsolete,* there is good reason to suppose that the Courts of the Admiral in every country took at one time cognisance of all such delicts, no matter where they were committed on the High Seas, or under what flag the vessels, that might have been instrumental to such delicts, were navigated. We have elsewhere observed that the institution of the office of High Admiral of England was originally intended to secure a more efficient maintenance of naval discipline in time of war; but such an office would have met with the fate of the High Constable's Office in England, long before this latter office was suppressed, if its authority had not been turned to useful account in time of peace, by the Crown undertaking through the Admiral's Office to administer the Law Maritime ad instantiam partis, and to enforce the decisions of the Admiral's Court in questions of maritime tort against the wrong-doer, no matter what might be the nationality of the mariner or of his ship. We have little doubt that the Admiralty Rolls in the Record Office, if they were searched, would furnish abundant proofs that before the Tudor period the Admiral of England, at the instance of parties, was accustomed to issue his mandate to his Marshal or other officer to arrest goods* on board of foreign ships anchored on the High Seas off the coast of England, and to arrest foreign ships themselves as well as foreign mariners anywheret on the High Seas for trespasses committed against the Law of the Sea. The exercise of this jurisdiction as regards foreign mariners has long been obsolete, whilst

* Such was the opinion given in 1796 by Sir William Scott, King's Advocate, Sir John Scott, Attorney-General, and Dr. Battine, Admiralty Advocate. Their opinion is printed in the Appendix to Browne's Admiralty Law, vol. ii., p. 519.

• The record of an arrest of goods on board of a Prussian ship in Kirkley Roads, at the instance of a party under a warrant from John, Duke of Exeter, High Admiral in the reign of Henry VI., is preserved, amongst other documents, in the Black Book of the Admiralty, vol. i., p. 259. Kirkley Roads is described by Lord Hale, in his Treatise de Portubus Maris, ch. 5, “as a great precinct of the sea, being five miles in the main sea.”

+ A precept from the same High Admiral, issued during the reign of Henry VI., is preserved in the same volume of the Black Book, p. 250, under which the Marshal is ordered to arrest certain alien masters of ships with their vessels and cargoes, wherever they might be found, and to bring them before

the exercise of it as regards foreign ships has become restricted within such a distance from the coast, that the arresting officer may be under its protection at the time when he makes the arrest, in other words, may be within the limit of a geographical league seawards from the coast, such being the utmost distance at which it was supposed, before the present century, that a nation could exercise effective control by its cannon on shore over vessels on the open sea. How and when the precise distance of three miles from the coast came to be generally accepted by nations as the boundary, beyond which the aid of the process of their Maritime Courts could not be reasonably invoked to enforce the Law of the Sea, is not very clear. We had hoped at one time, that instruction on this subject might be found in the records of the Admiralty Court of the Cinque Ports, which, up to a very recent period, exercised by prescription a jurisdiction over the High Seas within a limited distance from the coast of Kent and of Sussex, to the exclusion of the jurisdiction of the High Court of Admiralty of England. The Records* however of the Admiralty Court of the Cinque Ports do not appear to supply any definite information as to the limits of its jurisdiction, as an Instance Court. Dr. Arthur Browne, Professor of Civil Law in the University of Dublin, says, in the course of his lectures on the Law of the Admiralty, published in 1802, “ As to the limits of the Cinque Ports jurisdiction, I am not ashamed to say, I am uninformed, since I have seen late opinions of great

the Admiral or his Lieutenant at Cromer, in Norfolk, to answer a complaint of trespass committed by them against the Law Maritime, and as this warrant is addressed to all masters and mariners of ships as well as to the Marshall, the latter officer had thereby authority to invoke the aid of all vessels and their crews on the High Seas-ubilibet, wherever he might need them.

* The Records of the Cinque Ports were formerly deposited in Dover Castle, but they are now for the most part lost or destroyed, at least, such is the account given of them by William Boys, F.S.A., in his notices of the Cinque Ports, published at Canterbury in 1792, with extracts from the registers going no further back than 1598.

same

English civilians making the same acknowledgment.” It appears, however, from a case reported in 2, Haggard's Admiralty Reports, p. 438, which was heard on December 23rd, 1831, before the late Dr. Joseph Phillimore, then Judge of the Admiralty of the Cinque Ports, and in which the High Admiral of England and the Admiral of the Cinque Ports contended by their advocates for the body of a dead whale, as a perquisite of office, the learned Judge assumed, without hesitation, that the Admiral of the Cinque Ports had jurisdiction over the three-mile zone of sea adjoining the coast of Kent, the fish having been discovered within three miles from the shore,* and adjudged the spoil to the Admiral of the Cinque Ports. It must be noted, however, that this was a domestic dispute, in which no foreign interest was concerned, and it is only of importance as regards the particular distance of three miles, which can hardly have rested on a prescription coeval with the jurisdiction of the Lord Warden of the Cinque Ports.t

As far as we are able to trace our way in the darkness which surrounds the question, we think that the first germs of the doctrine of “jurisdictional

• The Jurisdiction of the Admiralty of the Cinque Ports was found by an Inquisition taken at a Court of Admiralty held by the Seaside at Dover, 12 June, 1682, to extend from Shore beacon in Essex, to Redcliffe in Sussex, near Sleaford. With regard to its extent seawards, nothing is said in that Inqui. sition, and Sir Leolyn Jenkyns, in his charge at a Sessions of the Admiralty, held within the Cinque Ports in 1668, assumed that the gentlemen of the Jury were acquainted with the Jurisdiction of the Admiral on the High Seas within their franchises.

+ That the theory of a zone of neutral waters in respect of any portion of the High Seas, had not been thought of, when the Admiral's Jurisdiction was first established, may be gathered from a curious case, the pleadings of which are preserved in the Archives of the Corporation of Yarmouth, and which was de. cided in 31 Edward I. War was at that time being carried on between France and Flanders, when certain Frenchmen seized by force of arms a Flemish ship called the Bliburgh, which was anchored to the shore in Kirkley Roads, to the southward of Yarmouth. The Bliburgh was sold by her captors to a mer. chant of Calais, who brought her subsequently in the course of trade into the

waters," * as distinguishable from that of “territorial waters,” is discoverable in the proclamation of King James I., of 1604, the text of which has been set out by Selden, for another purpose, in his treatise on the Dominion of the Sea, ch. xxii. We ought, however, to premise that in using the phrase, “jurisdictional waters,” we have in view the doctrine of “control” as distinguished from that of possession,” the latter being inconsistent with the principle of the open sea being “ nullius territorium," whilst “control” admits of degree, and may be exercised under conditions perfectly consistent with the innocent use of the sea by all vessels.

“Our pleasure is that within our ports, havens, roads, creeks, or other places of our dominion, or so near to any of our said ports and havens as may reasonably be construed to be within that title, limit, or precinct, there shall be no force, violence, or offence suffered to be done, either from man-of-war to man-of-war, or man-of-war to merchant, or merchant to merchant of either party. But that all, of what nation soever, so long as they shall be within those our ports and places of our jurisdiction, or where our officers may prohibit violence, shall be understood to be

port of Yarmouth, where she was arrested on behalf of her former Flemish owner on a plea of wrongful trespass. The Flemish owner alleged that the Bliburgh was anchored to the shore “in terrâ pacis et infra potestatem Regis Angliæ " at the time of her seizure. The French purchaser alleged that she had been captured from enemies on the High Seas in time of war. The Inquest found that the ship had been taken, when she was in the dominion of the King of England, anchored to the dry land, from which the captors had raised her anchor when they carried her away. Therefore it was considered that the Flemish owner should recover his ship with damages. - * Mr. Justice Story has adopted the term “ jurisdictional waters” in his judgment in the schooner Fame, 3 Mason's American Reports, p. 152. We have ourselves endeavoured to popularise the expression in a work on the Law of Nations in Time of Peace (Oxford and London, 1860), and Sir E. Creasy, in his First Platform of International Law, p. 271, recently published, holds the term to be convenient as distinguishing the open sea within the three-mile limit from parts of the sea “ intra fauces terræ,” which may be quite correctly termed " the territorial waters of a State."

« PreviousContinue »