s'ingérer dans ces faits, à moins que son secours ne soit réclamé : ces faits restent donc sous la police et sous la jurisdiction de l'état auquel appartient le navire." Then the whole essence of the matter seems to be, whether this man forms part of the crew of a British ship.]

[BLACKBURN, J.-We must construe the statute by the light of the international law. British statutes are to be construed to include aliens only as to those whom the British legislature has jurisdiction over, unless there are strong words to the contrary. Is there anything opposed to the international law in either country legislating as to a crew of foreigners under the national flag who are entitled to claim the protection of the law of the country, and are therefore subject to its enactments?]

There are reported cases touching this question. In The King v. Depardo (2) the prisoner, a Spaniard, but serving in the crew of an Indiaman, was indicted and convicted of the manslaughter of an English man, another of her crew, in the Canton River, China, where the river was about a third of a mile in width within the tideway and about eighty miles from the sea, but the prisoner was discharged after argument before the Judges. In The King v. De Mattos (3) the prisoner was a Spaniard who had entered into articles as one of the crew of an English ship bound for the Indian seas on a trading voyage of three years and back to England. At Zanzibar, an island under an Arab king, the captain left the crew and set up as a trader, and without the consent of the rest of the crew, engaged the Spaniard as interpreter. The ship left England in 1834, arrived at Zanzibar in May, 1835, and then went two or three short voyages and returned and anchored near Zanzibar in December, 1835. The crew being on shore, the Spaniard killed one of them. The Spaniard was brought to England, and tried in London, and the prisoner was acquitted on the ground that he was not a subject of Her Majesty.

[BLACKBURN, J.-But Vaughan, J. there says that though the prisoner was on board

(2) Russ. & R. 134; s. c. 1 Taunt. 26. (3) 7 Car. & P. 458.

ship for a time, it seems that the articles were abandoned, and he was living on shore and had been so for months at the time of the commission of the offence. So that dictum goes against you.]

In The Queen v. Lewis (4), the prisoner was a Frenchman by birth and a naturalized citizen of the United States, and shipped on board an American ship at New York. The deceased was a German by birth, and shipped on board the same ship. On the high seas the prisoner inflicted blows which caused the death of the deceased at Liverpool, and the conviction was quashed on the ground that the prisoner was a foreigner, and that this country could not legislate for foreigners in such a case.

[BLACKBURN, J.-It was rather on the ground that the ship was a foreign ship. LUSH, J.-Had this section (18 & 19 Vict. c. 91. s. 21.) any further object than to prescribe the offence and mode of trial? If not, then it would apply only to British subjects and known offences, and not extend the ambit of the former provisions. Would it have been an offence before the 17 & 18 Vict. c. 104? I cannot think it would extend to the case of a foreigner who had committed an offence within three months after leaving the ship and had then returned to this country. BYLES, J.-At common law is not this ship a floating British island, and those on it entitled to the protection of this country?]

It is submitted not when it floats into a foreign jurisdiction, and that there is no concurrent jurisdiction in such a case.

[BLACKBURN, J. referred to The United States v. Holmes (5), where it was held that to be within the act of the 30th of April, 1790, as to an offence committed on the high seas, it made no difference whether the offender were a citizen of the United States or not, if it be committed on board of a foreign vessel by a citizen of the United States or on board of a vessel of the United States by a foreigner, for the offender is to be considered pro hac vice as belonging to the nation under whose flag he sailed; nor does it matter that the

(4) 1 Dears. & B. 182; s. c. 26 Law J. Rep. (N.S.) M.C. 104.

(5) 5 Wheat. 412.

offence was committed not on board any vessel, but on the high seas.]

[BYLES, J. referred to 1 Kent's Com. 406, 10th ed., in the note. In Thomas v. Lane (6), in the case of libel for a maritime port, it was admitted that the Admiralty had no jurisdiction over torts, except those that were maritime or committed on the high seas or on waters within the ebb and flow of the tide, and that the Courts of common law denied the jurisdiction if the waters are within the body of the county. It was held, however, to be a clear point that the exception applied to tide waters in foreign countries, and that the Admiralty jurisdiction attached to torts on such waters, but the libel must aver that the trespass was on a tide water in a foreign port, and it cannot be taken by intendment. It was expressly held in the cases of The United States v. Ross (7) and The United States v. Pirates (8), that a vessel in an open roadstead within a marine league of the shore was upon the high sea under the 8th section of the act of the 30th of April, 1790, cap. 9, 80 as to give jurisdiction to the Courts of the United States. The high seas in that act mean any waters on the sea-coast which are without the boundaries of low-water mark. And yet, again, it was held in the case of The United States v. Robinson (9) that an offence committed in a bay entirely landlocked and inclosed by reefs was not committed on the high seas. The cases are so conflicting that it seems impossible to arrive at any definite conclusion on the subject. It seems to be conceded that the Admiralty has an established jurisdiction to award damages for torts or personal wrongs done on the high seas; and that waters within the ebb and flow of the tide, and which lie within the body of a county, are not in England within the Admiralty jurisdiction-4 Inst. 134, 2 Brown, Civil and Adm. Law, 14, The Nicholaas Wilzen (10); but that in the United States all tide-waters, though within the body of a county, are within the Admiralty juris

(6) 2 Sumn. 1. (7) 1 Gall. 624.

(8) 5 Wheaton, 184. (9) 4 Mason, 307. (10) 3 Hagg. 369.

diction and torts committed on such waters are cognizable by the Admiralty.]

The King v. Allen (11) will be relied on on the other side. In that case the prisoner was a sailor in an English ship, and was found guilty of larceny when lying off Whampoa, in China, when the vessel was twenty or thirty miles from the sea. There was no evidence whether the tide flowed where the ship lay, but the conviction was held good there, because the place was one where great ships go.

Poland (Beasley with him), for the Crown. -It is submitted that if this case depended upon the construction to be put on the Merchant Shipping Act, the prisoner Anderson was temporarily a British subject at the time he committed the offence charged, because he was entitled to British protection. Lord Hale (12), in commenting on the statute 21 Hen. 8. c. 11, whereby it was enacted that "if any person do rob, &c. any of the king's subjects within this realm," says, that "although the statute speaks of the king's subjects, it extends to aliens robbed; for though they are not the king's natural-born subjects, they are the king's subjects when in England by local allegiance." The King v. Depardo (2) does not apply to this case, as the prisoner there was not only a foreigner, but he was also an alien enemy, who, therefore, could not owe allegiance, and that point was expressly made. Moreover, no judgment was ever given in that case, though it would appear that the prisoner was discharged. The Queen v. Lewis (4) is also distinguishable in this, that the offence was there committed on board of a foreign vessel upon the high seas. The King v. De Mattos (3) the prisoner, a Spaniard, had left the ship, and no longer formed part of her crew, and therefore was not an English subject at the time of the offence being committed; and; further, the offence was committed on land out of England. Vaughan, J. in that case says, that to claim the prisoner's allegiance you must at least shew that he was under British protection.

In

In the present case the prisoner was in a British ship, and part of her crew;

(11) 1 R. & M.'C.C. 494. (12) 1 Hale P.C. 542.

therefore, the question arises whether, when a British vessel gets within three miles of foreign land or into foreign rivers, do the persons on board cease to be under British protection? And this depends upon whether such a place is within the jurisdiction of the Admiralty, notwithstanding it be not high seas. So long as the ship be on the high seas, there can be no doubt that she is within the Admiralty jurisdiction; then does that jurisdiction cease when she floats into foreign rivers? In Wheaton's International Law (2nd edit., by Lawrence), page 202, it is stated that the law of France in respect to offences and torts committed on board foreign merchant vessels in French ports establishes a two-fold distinction between, 1, acts of mere interior discipline of the vessel, or even crimes and offences committed by a person forming part of its officers and crew against another person belonging to the same, where the peace of the port is not thereby disturbed; 2, crimes and offences committed on board the vessel against persons not forming part of its officers and crew, or by any other than a person belonging to the same, or those committed by the officers and crew upon each other, if the peace of the port is thereby disturbed. In respect to acts of the first class, the French tribunals decline taking jurisdiction. The French law declares that the rights of the power to which the vessel belongs should be respected, and that the local authority should not interfere unless its aid is demanded. These acts, therefore, remain under the police and jurisdiction of the state to which the vessel belongs. In respect to those of the second class, the local jurisdiction is asserted by those tribunals. The grounds upon which the jurisdiction is declined in one case and asserted in the other are stated in a decision of the Council of State pronounced in 1806, and this decision arose from a conflict of jurisdiction between the local authorities of France and the American Consuls in the French ports of Antwerp and Marseilles in two cases of offences committed by one of an American crew upon another of the crew in American ships in those respective ports, as to which the American Consuls claimed jurisdiction, and their claim was allowed. This passage

in Wheaton agrees with the rule as laid down by M. Ortolan (13). In the present case, the peace of the port was not disturbed, nor was the assistance of the local authority invoked. Take the case of a barbarous country, as China, which disclaims jurisdiction, and the ship up a river in China; if the tribunals of the country of the ship are not to have jurisdiction, the offence must go unpunished. The King v. Allen (11) shews that a place may be within the jurisdiction of the Admiralty, though not on the high seas; and in The King v. Jemott (14) it was held it was piracy, over which the Admiralty had jurisdiction, to commit a robbery in a creek, harbour or port, &c., in foreign countries. In The United States v. Wiltzberger (15), manslaughter was committed by the defendant, the master of an American ship, on a seaman belonging to the ship in the river Tigris, in China, off Whampoa, about 100 yards. from the shore, in 4 fathoms water below low-water mark, 35 miles above the mouth of the river, where the tide ebbed and flowed. The river at Whampoa was about half a mile in breadth; and it was held that such a place was not "high seas" within the meaning of the act of Congress; but the ground of that decision was, that the act excluded all rivers and other waters but high seas, and the decision turned on the meaning to be given to the particular expression "high seas," as intended in that act. The Admiralty jurisdiction, however, extends not only to the high seas, but over all rivers where, and as far as, the tide ebbs and flows. 1 Kent's Com., 10th edit. 405, agrees with this.

[BLACKBURN, J.-It must be not only where the tide ebbs and flows, but also where great ships go.]

In The United States v. Hamilton (16), on an indictment for larceny on the high seas, where it appeared that the larceny was committed on board an American ship while she lay in an inclosed dock in the

(13) Les Règles Internationales et Diplomatie de la Mer, tom. 1. cap. xiii. p. 270, 4th ed. 1864. (14) O.B. 28th Feb. 1812, U.S.; Arch. C. Pl. 595, 16th ed.

(15) 5 Wheaton, 76. (16) 1 Mason, 152.

port of Havre, in France, into which dock the water was admitted only at the will of the owners, it was held that in no sense could such a place be taken to be the high seas. Story, J., says, "The Admiralty has never held that the waters of havens, where the tide ebbs and flows, are properly the high seas, unless those waters are without lowwater mark." The common law has attempted a still more narrow construction of the terms.

Then as to the statute. The provisions of the Merchant Shipping Act, alluded to, are merely intended to provide a proper venue for the trial of indictments, and the jurisdiction is not intended to be enlarged. The statute of Hen. 8. was a statute of procedure merely. In Kent's Commentaries, reference is made to the judgment in the insurance case of De Lovis v. Boit, where it is said that "it was maintained that in very early periods the Admiralty jurisdiction in civil cases extended to all maritime causes and contracts, and in criminal cases to all torts and offences, as well in ports and havens within the ebb and flow of the tide as upon the high seas; and that the English Admiralty was formed upon the same common model, and was co-extensive in point of jurisdiction with the maritime Courts of the other commercial powers of Europe. It was shewn by an exposition of the ancient cases that Lord Coke was mistaken in his attempt to confine the ancient jurisdiction of the Admiralty to the high seas, and to exclude it from the narrow tide waters and from ports and havens. The Court agreed with the Admiralty civilians that the statutes 13 Ric. 2, 15 Ric. 2, and 2 Hen. 4. did not curtail this ancient and original jurisdiction of the Admiralty, and that, consistently with those statutes, the Admiralty might exercise jurisdiction over torts and injuries upon the high seas and in ports within the ebb and flow of the tide, and in great streams below the first bridges.... On the sea-shore or coast, high and low water-mark determine what was parcel of the sea and what was the line of division between the Admiralty and the Courts of law, and it was held that it ought to be so considered, by parity of reasoning, where the tide ebbs and flows in ports and havens; and that the Admiralty jurisdiction extends to all tide waters in ports and NEW SERIES, 38.—Mag. Cas.

havens and rivers below the first bridges. The Americans give a liberal interpretation to the term 'high seas,' as they include their inland lakes-see the note, page 408. In The Propeller Genessee Chief v. Fitzhugh and others (17), a collision on Lake Ontario, about forty miles below Niagara, was held to be within the jurisdiction of the Court as coming within the scope of Admiralty jurisdiction. There the tide did not extend; but it was said that if it were public navigable water, on which commerce was carried on between different states and nations, there was nothing in the absence of tide to prevent its being within the Admiralty jurisdiction. In Waring v. Clarke (18) a collision in the Mississippi, near the Bay of Goulah, was held within the jurisdiction, but in that case the tide flowed. This case is commented on in 2 Parson's Maritime Law, 511, and the ground of it is urged to be that of necessity, and it is doubted whether it would be extended.... If any such necessity or reason exists as to the punishment of crime committed in a river of China or Africa it must be because no other tribunal to which our country would be willing to confine the case would be likely to take cognizance of it." It is important that the country whose flag is flying over the ship should have jurisdiction, whether there may or may not be concurrent jurisdiction in the tribunals of another country.

[LUSH, J. referred to the Irish case mentioned in 1 Russ. on Crimes, 4th ed. p. 154, and The Queen v. Mannion (19).]

Therefore it is unnecessary to construe the Merchant Shipping Act so extensively as to bring a foreigner within the term "any person." Upon the cases and upon principle, it is submitted that an English vessel does not lose its national character by floating within three miles of a foreign coast, or into large rivers where great ships go. The prisoner here had entered into a contract to serve and was serving as a seaman and one of the crew of a British ship, and was entitled to the protection of its flag.

BOVILL, C.J.-There is no doubt the place was within the territory of France, and that

(17) 12 Howard's Supp. 443. (18) 5 Howard, 441. (19) 2 Cox, C.C. 158. D

the prisoner was subject to the laws of France, which the local authorities of that realm might have enforced, if so minded; he also was one of a crew on board of a British merchant vessel, and under the protection of British law, and, being under its protection, was amenable to its provisions. It is true that he was an American citizen, but then he had embarked of his own consent on board a British ship as part of her crew. From various observations found in the writings on this subject, it would seem that, although the prisoner might be within the jurisdiction of the United States of America, as an American, so, also, he might be within French jurisdiction, as the offence was committed in France, and he would yet be subject to English law as part of the crew of a British vessel in respect of the jurisdiction preserved over the ship though being in a port of a foreign country. From the passage cited from M. Ortolan (Règles de Mer, &c.) as to merchant vessels, the French nation do not assert their police laws over crews of these vessels unless they are invoked or in case of disturbance of the peace of the port. M. Ortolan gives two instances of cases of American vessels. The one was in the port of Antwerp, and the other in the port of Marseilles. The local authorities within whose local jurisdiction an offence was committed by one of the crew on another of the same crew on board the American vessels claimed exclusive cognizance of the matters, but the Americans claimed exclusive jurisdiction though being in a foreign port, and this conflict between the consular authorities led to the establishment of the rule as laid down by M. Ortolan. The Americans, by Act of Congress of the 3rd of March, 1825, c. 67. s. 5, made regulations for their subjects on board American vessels in foreign ports, and we do the same. When our vessels go into foreign ports they must respect the law of the place, but on the other hand, they must respect our laws. We make such regulations as may prevent disturbance in foreign ports. America has set us a strong example to shew we have the right to make regulations as to our own ships. If it were necessary to decide this case upon the Merchant Shipping Act, 17 & 18 Vict. c. 104, I should not hesitate to say that we have power to legislate for

all those who put themselves under the laws of Great Britain by joining the crew of a British ship, and we might include foreigners in such a case. But the law of England is sufficient without having recourse to that statute. Here the vessel was a British vessel, the offence was committed by a person then being one of her crew, and I think it makes no difference whether that person, so being one of her crew, be a foreigner or not. If the vessel at the time of the commission of the offence were on the high seas, then the offence would have been without doubt within the jurisdiction of the Admiralty Court of England, and the Central Criminal Court by statute would have been the place of trial: then if so, how is the case distinguished by the circumstances of the ship being in the River Garonne on her way up to Bordeaux, about forty-five miles up the river from the open sea, the river at that place being about half-a-mile wide, and within the flux and reflux of the tide, and the ship, at the time of the offence being committed, being about 300 yards from the nearest shore. The spot therefore was in a navigable river, below the bridges where the tide flowed and ebbed, and where great ships hovered. There is no practical difference between such a place and the high seas in the common acceptation of the term; but at all events the cases cited by Mr. Poland from the American authorities shew that such a place is within the jurisdiction of the Admiralty, just as much as the high seas are. For these reasons, I think the conviction is right.

CHANNELL, B.-I also think the conviction is right. The statute 17 & 18 Vict.

c. 104. has been referred to on behalf of the prisoner, but I agree in the view taken of this case by Mr. Poland, and think that it is not necessary to pray in aid the 267th section of that statute. I do not decide that the case is not within that section, but in my view that point does not arise. If it had arisen, I should have said that this Court must execute the power created by that act of parliament; but in construing the statute, I agree that we are at liberty to ascertain what the international law on such a point may be, and that our construction should be in harmony with that law if the words are capable of bearing such a construction. The ground, however,