of my present judgment is, that the ship in question was within the jurisdiction of the Admiralty Court of England at the time the offence was committed, although it may not have been on the high seas strictly so called. This appears especially from the cases of The Queenv. Allen (20) and Thomas v. Lane (21), which have been cited in the argument. There may be a difficulty in completely reconciling The United States v. Wiltzberger (22), but I do not think it can be said to be in conflict. Upon this one ground, I think the conviction right in law.

BYLES, J.-I adhere strictly to what, in substance, I told the jury at the trial. I then said that this ship being a British ship was, under the circumstances, a floating island, where the British law prevailed, and was within the Admiralty jurisdiction; that the prisoner, though an alien by birth, by becoming one of the crew of this ship, had put himself under the protection of the British law, and was therefore amenable to its provisions. The two English cases, The Queen v. Allen (20) and The Queen v. Jemott (23), and two American cases of Thomas v. Lane (21) and The United States v. Coombs (24), have decided that in a river, like the Garonne, within the flux and reflux of the tide, and where great ships go, a ship is within the Admiralty jurisdiction1 Kent's Com. 401-of the country to which she belongs. The only consequence of the ship being within the ambit of French territory is that, this vessel not being an armed vessel, there might have been a concurrent jurisdiction had the French law claimed it. I form no opinion, therefore, what construction we should place upon the Merchant Shipping Act if it were necessary to decide that point.

BLACKBURN, J.-I agree with the rest of the Court that it is unnecessary to decide upon the construction to be placed upon the Merchant Shipping Act. Whenever the English law has jurisdiction over any matter, in whatever Court-whether Admiralty or

(20) 1 Moo. C.C. 494.

(21) 2 Sumn. 1.

(22) 5 Wheat. 76.

(23) O.B. 28th Feb. 1812, U.S.; Arch. Cr. Pl. 595, 16th edit.

(24) 12 Peters, 72.

other, then the statutes come in and cure the difficulty as to venue. Had then any of the Queen's Courts jurisdiction here? Both in America and elsewhere all persons on board ship are to be considered part of the nation of the ship whose flag is flying, just as on land within the territory of the nation to whom the land belongs. Now is this place to be considered the high seas or not? From the earliest times the Court of Admiralty has had jurisdiction over offences committed on the common ground of nations, which is the sea, where all nations do travel. And this jurisdiction extends to every nation, not only on open sea, but also where the ships do go, as far as the tide extends. For many purposes, this ship was in French territory, so as to give local jurisdiction to the French authorities there, but then they do not exercise it unless they choose to claim it. Then is there jurisdiction in the English. Court of Admiralty over ships being in that place? According to American law, where great ships go for commerce and the tide flows, their Court of Admiralty would have jurisdiction. The cases of The Queen v. Allen (20) and The Queen v. Jemott (23) are most in point. In those cases it was held that the Admiralty has jurisdiction over creeks, harbours, ports, and rivers where great ships go. In America, in one case, The United States v. Wiltzberger (22), such a place was held to be out of the jurisdiction; but in that case, as only a Chinese Court could have jurisdiction or the offence must go unpunished, it was, to say the least, an inconvenient decision; but Thomas v. Lane (21) and The United States v. Coombs (24) give the rule and decisions according to the English decisions. Therefore the result is, that a man on board a British ship may be tried in England just as any British seaman on board an American ship may be tried in America. Where our legislature chooses to enact that it will exercise jurisdiction over foreigners we must execute such statute, but we should generally confine English statutes to British subjects, or persons under the protection of British laws. I think my Brother Channell expressed, very clearly and concisely, what our rule of construction should be as to such statutes, by the light of the international law; and my impression is, that where a ship sails under the flag of any nation, that nation has a right to make

regulations for the crew of the ship; and even if any of the crew of an English vessel, still belonging to the crew, land and commit a crime, we might properly construe the statute to include such a case; but certainly as to the case put, upon the statute, of an offence committed by a member of the crew after he has ceased to belong to the crew for any time under three months, in a foreign territory, I should hesitate before I arrived at such a construction. These are points, however, which it is wholly unnecessary to consider in the present case.

LUSH, J.-It is not necessary to resort to the Merchant Shipping Act in this case. I concur, on the ground that, when the vessel was in a tidal river, within the flux and reflux of the tide, and not within the body of any county, it was under the jurisdiction of the Admiralty of England. Conviction affirmed.

Attorneys-The Solicitor to the Treasury, for the prosecution; Senior, Attree & Johnson, for the prisoner.

[CROWN CASE RESERVED.]

1868.

Nov. 16.

} THE QUEEN v. BARROW.*

Rape Married Woman - Consent Fraud.

To constitute a rape on a woman conscious and capable of giving consent at the time of connexion, there must be an actual resistance of the will. Non-resistance to connexion, permitted under a misapprehension induced by the conduct of the man, by a woman conscious and capable of consenting, amounts to consent, though unintentional, and prevents the offence amounting to a rape.

This was a CASE reserved by the Lord Chief Baron, and tried before him, at Liverpool, on the 15th of August, 1868.

An

It was an indictment for a rape. alibi was set up, and a great deal of evidence given for and against it, but the jury, to the entire satisfaction of his Lordship, ound the prisoner guilty.

* Bovill, C.J., Channell, B., Byles, J. Blackburn, J. and Lush, J.

The question was, whether the offence as proved amounted in point of law to a rape. This question depended entirely upon the evidence of the prosecutrix, Harriet Geldart, which was as follows:

"I and my husband lodge together at William Garner's. We sleep up stairs on the first floor, and were in bed together on the night of Saturday, the 21st of June. I went to bed about twelve o'clock, and about two o'clock on Sunday morning I was lying in bed and my husband beside me. I was completely awakened by a man having connexion with me, and pushing the baby aside out of my arms. He was having connexion with me at the moment when I completely awoke; I thought it was my husband, and it was while I could count five after I completely awoke before I found it was not my husband. A part of my dress was over my face, and I got it off, as he was moving away. As soon as I found it was not my husband I pulled my husband's hair to wake him. The prisoner jumped off the bed."

On cross-examination she added:

"Till I got my dress off my face I thought it was my husband. After he had finished I pulled the dress off my face. I was completely awakened by the man having connexion with me, and the baby being moved."

On re-examination she said: "The baby was pushed on further into the bed."

The jury found this evidence to be true. Upon these facts the prisoner's counsel, Mr. Cottingham, submitted that the indictment was not sustained, and quoted 1 Russell on Crimes (edit. 1843), 677, The Queen v. Jackson (1), The Queen v. Saunders (2), The Queen v. Williams (3), The Queen v. Camplin (4), The Queen v. Fletcher (5); and 8 Cox C.C. 131, was also referred to.

His Lordship thought, especially on the authority of the judgment delivered by Lord. Campbell in The Queen v. Fletcher (5), that the case was made out, inasmuch as it was sufficient that the act was done by force and without consent before or afterwards;

(1) Russ. & R. 487. (2) 8 Car. & P. 265. (3) Ibid. 286.

(4) 1 Den. C.C. 89. (5) Bell, C.C. 63.

This was a CASE reserved by Cockburn, C.J.:

James Shickle was tried before me, at the last Assizes for the county of Suffolk, on an indictment for larceny, for stealing eleven tame partridges. There was no doubt that the prisoner had taken the birds animo furandi; but a question arose whether the birds in question could be the subject of larceny; and the prisoner having been convicted, I reserved the point for the consideration of the Court. The birds in question had been reared from eggs which had been taken from the nest of a hen partridge, and had been placed under a common hen. They were about three weeks old and could fly a little. The hen had at first been kept under a coop in the

Bovill, C.J., Channell, B., Byles, J., Blackburn, J. and Lush, J.

prosecutor's orchard, the young birds running in and out, as the brood of a hen so confined are wont to do. The coop had however been removed, and the hen set at liberty, but the young birds still remained about the place with the hen as her brood, and slept under her wings at night. It is well known that birds of a wild nature, reared under a common hen, when in the course of nature they no longer require the protection and assistance of the hen, and leave her, betake themselves to the woods or fields, and after a short time differ in no respect from birds reared under a wild hen of their own species. The birds in question were neither tame by nature nor reclaimed. If they could be said to be tame at all, it was only that their instinct led them during their age of helplessness to remain with the hen. On their attachment to the hen ceasing, the wild instincts of their nature would return, and would lead them to escape from the dominion and neighbourhood of man. On the other hand, from their instinctive attachment to the hen that had reared them, and from their inability to escape, they were practically in the power and dominion of the prosecutor. The question is, whether under the circumstances there can be such property in birds of this description as can be the subjectmatter of larceny.

Douglas, for the prisoner.-These birds were wild by nature; then as they were still alive, they could not be the subject of larceny unless they were either reclaimed or confined. But here it is stated in the case that as soon as their instinctive attachment to the hen ceased their wild nature would return, and would lead them to escape from the dominion of man. Then it is found that they were able to fly, and were under no restraint or confinement.He referred to 1 Russell on Crimes (4th edit.), 281.

No counsel appeared for the Crown.

BOVILL, C.J.-Although partridges by nature are wild, in this case they were from their birth being brought up tame. Upon the facts of this case I think these partridges were practically under the care and dominion of the prosecutor. I approve of the law as laid down by my Brother

(1) In The Queen v. Cory (1) Channell, B. directed the jury that young pheasants hatched by hens and reared in a coop were tame pheasants at the time they were taken, whatever might have been their destiny afterwards. The same had been held with reference to young pheasants which had been hatched and reared under common hens, and at the time the hens had been removed with their broods into a paddock and confined under coops, through the bars of which the pheasants could at any time easily pass. In The Queen v. Cory, at the time of the larceny they were nearly a month old, and could fly thirty or forty rods; at night they nestled under the hens. The Queen v. Head (2) and The Queen v. Garnham (3) agree with

this.

(1) 10 Cox C.C. 23.

(2) 1 Fost. & F. 350. (3) 8 Cox, 451.

Removal Act, 1855, to serve him with a notice in the form given in the schedule to the latter act, Form (C.).

This was a CASE stated by Justices under 20 & 21 Vict. c. 43.

On the 27th of March John Dunham Amys (hereinafter called the appellant), the clerk of (duly authorized in behalf of ) the nuisance authority for the district comprising the several parishes within the Epping Union, made a complaint to a Justice of the Peace for Essex, that there exists in the yard in the front of four cottages occupied by four persons, situate at or near a place called the Rookery, near Hannalls Street, Thoydon Garnon, in the said district, a nuisance, namely, a privy and cesspool so foul as to be injurious to health, and that such nuisance is caused by the default or sufferance of George Creed, the owner of the premises (hereinafter called the respondent); and thereupon a summons was duly issued to George Creed to appear, and accordingly he did, with his attorney, Mr. Rawlings, appear before us, the undersigned, three of Her Majesty's Justices of the Peace for the county of Essex, at a petty sessions holden at Epping, on the 3rd of April, to answer such complaint, and Mr. Amys appeared in person to support the same.

It was proved by the appellant, and admitted by the respondent, that on the 11th of March a notice (1) was served on the respondent.

And it was admitted by the appellant that no other notice had been served on the respondent, nor any notice whatever upon any of the tenants or occupiers.

It was also admitted, on both sides, that the respondent was "owner," and that the four cottages are private premises within the meaning of the acts, and that they are in the several occupations of four tenants.

It was proved that the notice to the nuisance authority referred to in the annexed notice (1) had been given by Mr.

(1) The following is a copy of the notice:

"To Mr. George Creed, of Epping, in the county of Essex, the owner of the cottages or tenements occupied by the persons mentioned in the margin (Widow Styles, Widow Phillips, John Fish, Wil

Fitch, a sanitary inspector duly appointed by them, and that such inspector had entered and inspected the premises, and ascertained the existence and continuance of the nuisance complained of, previously to giving his said notice to the nuisance authority; and also on the morning of the day on which the appellant made his complaint.

The respondent's attorney contended that the notice served was, in fact, merely the notice required by the "Sanitary Act, 1866," to be served by the "nuisance authority," previous to taking proceedings before Justices under the 12th section of "The Nuisances Removal Act, 1855," and that the proceedings under the 12th section can only be taken, where a nuisance is "so ascertained to exist,” (that is, in manner prescribed by sections 10. and 11), or where the nuisance, in their opinion, did exist at the time when the notice (that is, as he contended, the notice required by the 10th and 11th sections, and being Form C. in the schedule to the act) was given; and that inasmuch as that notice is not merely a demand of entry, but is also a notice to the occupier to remove or discontinue the nuisance within twenty-four hours, it ought to have been served previous to and in addition to the notice required by the 21st section of the act of 1866, and the more especially with reference to the 55th section of that act making the powers therein cumulative.

liam Weare), and situate at or near a place called the Rookery, near Hannalls Street, in the parish of Thoydon Garnon, in the county of Essex, within the district of the nuisance authority of the Epping Union.

"Whereas the nuisance authority for the district comprising the several parishes within the Epping Union, in the county of Essex, have received a notice from Cornell Scrutton Fitch, a sanitary inspector, appointed by and acting under the nuisance authority, stating that there exists in the yard in the front of the cottages or tenements occupied by the persons mentioned, and situate at or near a place called the Rookery, near Hannalls Street, in the parish of Thoydon Garnon, within the said district, under the Nuisance Removal Acts for England, the following nuisance, namely, a privy and cesspool so foul as to be injurious to

The appellant contended, on the other hand, that the notice C. was unnecessary.

The Justices decided that the notice C. ought to have been served previous to, and in addition to the notice required by, the act of 1866, and, in the absence of evidence that such notice C. had been duly served, dismissed the summons, and ordered 41. 178. 6d. costs to be paid to the respondent by the appellant, and to be recovered according to law.

Whereupon the appellant, being dissatisfied with the determination, as being erroneous in point of law, hath, pursuant to section 2. of the stat. 20 & 21 Vict. c. 43, applied to the Justices, in writing, to state and sign a case, setting forth the facts and the grounds of their determination for the opinion of this Court.

The Justices state and sign this case accordingly.

The question of law for the opinion of this Court was, whether, previous and in addition to the notice required by the 21st section of the Sanitary Act, 1866, a notice in the form or to the effect of Form C. in the schedule to the act, 18 & 19 Vict. c. 21, should have been served. If the Court should be of opinion that such last-mentioned notice should also have been served, then the order is to stand; otherwise it is to be quashed.

Bush Cooper, for the appellant.-The Justices ought to have made the order

health, and that such nuisance is caused by the default or sufferance of you, the said George Creed.

"Wherefore the said nuisance authority, in pursuance of the statute in that behalf made and provided, hereby give you, the said George Creed, notice to abate the said nuisance; and for that purpose to execute such works, and to do all such things as may be necessary, within ten days from the day of the date hereof.

"Further, take notice that, unless this notice be complied with by you, the said George Creed, within the time aforesaid, a summons will be issued requiring your attendance to answer a complaint which will be made to the Justices for enforcing the removal of the said nuisance, and prohibiting a repetition thereof and for recovering the costs and penalties that may be incurred thereby."