Offences to be tried in the places limited by commission, the bringing persons who are accessories to piracy and robbery upon It has been fully settled that one who knowingly receives and abets a pirate within the body of a county is not triable by the common law, the original offence being cognizable alone by another jurisdiction. (s) SECT. II. Of the Place in which the Offence may be committed. 28 H. 8, c. 15. THE statute 28 Hen. 8, c. 15, s. 1, enacts, that all treasons, felonies, robberies, murders, and confederacies, committed in or upon the sea, or in any haven, river, creek, or place, where the admiral has, or pretends to have, power, authority, or jurisdiction, shall be inquired, tried, &c. in such shires and places as shall be limited by the king's commission, as if any such offences had been committed upon the land. Concurrent jurisdiction of the common law and admi Haven, &c. In a case at the Admiralty session, of a murder committed in a part of Milford Haven, where it was about three miles over, about seven or eight miles from the mouth of the river, or open sea, and ralty in Milford about sixteen miles below any bridges over the river, a question was made whether the place where the murder was committed was to be considered as within the limits to which commissions granted under the statute 28 Hen. 8, c. 15, do by law extend. Upon reference to the judges, they were unanimously of opinion that the trial was properly had. And it is said that during the discussion of the point the construction of this statute by Lord Hale (t) was much preferred to the doctrine of Lord Coke; (u) and that most, if not all of the judges, seemed to think that the common law has a concurrent jurisdiction with the Admiralty in this haven, and in all other havens, creeks, and rivers, in this realm. (v) It appeared to them that the 28 Hen. 8, (x) See note (r), p. 99. (8) Admiralty case, 13 Co. 53. And a Scadding, who was committed by the minable by the admiral, it was a sufficient ground for remanding him. Yelv. 134. 2 East, P. C. c. 17, s. 14, p. 810. (t) 2 Hale, 16, 17. (u) 3 Inst. 111. 4 Inst. 134. (v) Bruce's case, 2 Leach, 1093. Russ. & Ry. 243. This was a case of murder. The st. 15 Rich. 2, c. 3, gives the admiral jurisdiction to inquire of the death of a man, and of a mayhem done in great ships hovering in the main stream of great rivers. beneath the bridges of the same rivers nigh to the sea, and in none other places of the same rivers; which jurisdiction is only concurrent with, and not in exclusion of, the common law. 1 East, P. C. 368. applied to all great waters frequented by ships; that in such waters the admiral, in the time of Hen. 8, pretended jurisdiction; that by havens, &c., havens in England were meant to be included, though they are all within the body of some county; and that the mischief from the witnesses being seafaring men was likely to apply to all places frequented by ships. (w) If a robbery be committed in creeks, harbours, ports, &c. in foreign countries, the Court of Admiralty indisputably has jurisdiction of it, and such offence is, consequently, piracy. (x) It is clear that upon the open sea-shore the common law and the High and low Admiralty have alternate jurisdiction between high and low water- water-mark. mark: (y) but it is sometimes a matter of difficulty to fix the line of demarcation between the county and the high sea in harbours, or below the bridges in great rivers. The question is often more a matter of fact than of law, and determinable by local evidence: but General rules. some general rules upon the point are collected by Mr. East. He says, that "in general it is said that such parts of the rivers, arms, or creeks, are deemed to be within the bodies of counties, where persons can see from one side to the other. Lord Hale, in his treatise De jure maris, says, that the arm or branch of the sea which lies within the fauces terræ, where a man may reasonably discern between shore and shore, is, or at least may be, within the body of a county. Hawkins, however, considers the line more accurately confined by other authorities, to such parts of the sea where a man, standing on the one side of the land, may see what is done on the other; and the reason assigned by Lord Coke in the Admiralty case (2) in support of the county coroner's jurisdiction, where a man is killed in such places, because that the county may well know it, seems rather to support the more limited construction. But at least, where there is any doubt, the jurisdiction of the common law ought to be preferred." (a) The question, whether the fact were committed on the sea or within the body of a county, is of main importance. For if it turn out that the goods were taken any where within the body of a county, the commissioners under the statute of Hen. 8, can have no jurisdiction to inquire of it; and if it should appear that the goods were taken at sea and afterwards brought on shore, the offender cannot be indicted as for a larceny in that county into which they were carried, because the original felony was not a taking of which the common law takes cognizance. (b) And the statute 39 Geo. 3, c. 37, (c) relates only to offences committed on the high seas, and out of the body of any county. Where a prisoner was indicted for stealing three chests of tea out of the Aurora, of London, on the high seas, and it was proved that the larceny was committed while the vessel lay off Wampa, in the river, twenty or thirty miles from the sea, but there was no evidence as to the tide flowing, or otherwise, at the place where the vessel lay, it was held, from the circumstance, that the tea was stolen on (w) MS. Bayley, J. (z) Rex v. Jemot, Old Bailey, 28th Feb. 1812. MS. Jerv. Arch. 263. Ed. 8. (y) 3 Inst. 113. 2 Hale, 17; and see 2 Hawk. c. 9, s. 14, as to the jurisdiction of the coroner in offences on the sea-shore. Anonymous, 1 Lewin, 242. (z) 13 Co. 52. (a) 2 East, P. C. c. 17, s. 10, p. 803, (b) 2 East, P. C. c. 17, s. 12, p. 805. 3 Shooting from the land, and killing on the sea. board the vessel, which had crossed the ocean, that there was sufficient evidence that the larceny was committed on the high seas. (d) It was decided that where A., standing on the shore of a harbour, fired a loaded musket at a revenue cutter, which had struck upon a sandbank in the sea, about one hundred yards from the shore, by which firing a person was maliciously killed on board the vessel, it was piracy; for the offence was committed where the death happened, and not at the place from whence the cause of death proWound on the ceeded. (e) And if a man be struck upon the high sea, and die upon the shore after the reflux of the water, the admiral, by virtue of his commission, has no cognizance of the offence. (ƒ) And as it was doubtful whether it could be tried at common law, it is provided by statute that the offender may be tried in the county where the death stroke, poisoning, or hurt happened. (g) sea, death on the shore. The second section of the 28 Hen. 8, c. 15, introduces "manslaughters;" and uses the words "havens, &c." without the qualification in the first section, where the admiral has a jurisdiction. One of the mischiefs recited in the first section is, that the witnesses being commonly mariners and shipmen, depart without long tarrying or protraction of time. This statute is almost in terms with 27 Hen. 8, c. 4, except that it adds "treasons" to the offences. It seems that the stat. 27 Hen. 8, does not authorize the trial of felonies created by subsequent statutes, for which provision was therefore made by the 39 Geo. 3, c. 37. (h) The prisoner was indicted for maliciously shooting, and the offence was within a few weeks after the passing of the 39 Geo. 3, and before notice of it could have reached the place where the offence was committed: and, upon a case reserved, none of the judges supposed that the party could have been tried if the 39 Geo. 3, had not passed; and as he could not have known of that act, they thought it right that he should have a pardon. (i) And it was decided that a party was not triable under both or either of these statutes for maliciously shooting, within 43 Gco. 3, c. 58: (now repealed) but this decision proceeded upon the terms of the 43 Geo. 3, which confined its operation to England and Ireland. (j) SECT. III. Of the Court by which the Offence of Piracy may be tried. The offence of piracy was formerly cognizable only by the Admiralty Courts, which proceeded without a jury, in a method much conformed to the civil law. But it being inconsistent with the liberties of the nation that any man's life should be taken away, unless by the judgment of his peers, or the common law of the land, the statute 28 Hen. 8, c. 15, established a new jurisdiction. By that statute it was enacted, that this offence should be tried by commis (d) Rex v. Allen, R. & M. C. C. R. 494. S. C. 7 C. & P. 664. (e) Hawk. P. C. c. 37, s. 17. Coombes's case, 1 Leach, 388. 1 East, P. C. c. 5, s. 131, p. 367. (f) 2 Hale, 17, 20. 1 East, P. C. c. 5, (g) 9 Geo. 4, c. 31, s. 8, post, Murder. P. C. 807. (i) Rex v. Bailey, Hil. T. 1800. MS. Bayley, J., and Russ. & Ry. 1. (j) Rex v. Amarro, Mich. T. 1814. Russ. & Ry. 286. The act was extended by 1 Geo. 4, c. 90, s. 1, but is now repealed, and new provisions substituted by 9 G.4, c.31. See post, Book III. Chap. x. sioners nominated by the Lord Chancellor, the indictment being first found by a grand jury of twelve men, and afterwards tried by another jury as at common law; and that the course of proceedings should be according to the law of the land. Amongst the commissioners there are always some of the common law judges; (k) and by the Admiralty Court thus constituted the offence of piracy, and other marine offences, may now be tried. But the statute 28 Hen. 8, merely altered the mode of trial in the Admiralty Court; and its jurisdiction still continues to rest on the same foundations as it did before that act. It is regulated by the civil law, et per consuetudines marinas grounded on the law of nations, which may possibly give to that Court a jurisdiction that our common law has not. (7) court. The 32 Geo. 2, c. 25, s. 20, for the more speedy bringing of Times for offenders to justice, &c, enacts, that a session of oyer and terminer holding the and gaol delivery for the trial of offences committed upon the high 32 Geo. 2, seas, within the jurisdiction of the Admiralty of England, shall be c. 25, s. 20. holden twice at least in every year; viz. in March and October, at the Old Bailey; (except when the sessions of oyer and terminer and gaol delivery for London and Middlesex shall be there holden) or in such other places in England as the Lord High Admiral, &c. shall, in writing under his hand, directed to the judge of the Court of Admiralty, appoint. And the late act 7 Geo. 4, c. 38, was passed, to enable the commissioners for trying offences committed upon the sea, and justices of the peace to take examination touching such offences, and to commit to safe custody persons charged therewith. The 11 & 12 Wm. 3, c. 7, s. 1, made provision for the trial of piracies, felonies, &c., committed upon the sea, or in any haven, &c. and the 46 Geo. 3, c. 54, enacts, that all treasons, piracies, felonies, robberies, murders, conspiracies, and other offences of what nature or kind soever, committed upon the sea, or in any haven, river, creek, or place, where the admiral or admirals have power, authority, or jurisdiction, may be inquired of, tried, &c. according to the common course of the laws of this realm used for offences committed upon the land within this realm, and not otherwise, in any of his Majesty's islands, plantations, colonies, dominions, forts, or factories, under and by virtue of the King's commission or commissions, under the great seal of Great Britain, to be directed to any such four or more discreet persons as the Lord Chancellor of Great Britain, Lord Keeper, or Commissioner for the custody of the great seal of Great Britain for the time being, shall from time to time think fit to appoint; and that the said commissioners so to be appointed, or any three of them, shall have such and the like powers and authorities for the trial of all such murders, &c., within any such island, &c. as any commissioners appointed according to the directions of the statute 28 Hen. 8, by any law or laws then in force would have for the trial of the said offences within this realm. And it further enacts, that all persons convicted of any of the said offences so to be tried, &c. shall be liable to the same pains, &c. as by any laws then in force, persons convicted of the same would be liable to, in case the same were tried, &c. within this realm, by virtue of any commission according to the directions of the 28 Hen. 8. (k) Generally two. 4 Bla. Com. 269. (1) By Mansfield, C. J. Rex v. Depardo, 1 Taunt. 29. Punishments, c. 28, s. 12. By 7 & 8 Geo. 4, c. 28, s. 12, "all offences prosecuted in the 7 & 8 Geo. 4, High Court of Admiralty of England shall upon every first and subsequent conviction be subject to the same punishments, whether of death or otherwise, as if such offences had been committed upon the land." 9 Geo. 4, c. 31. Provisions for offences act committed The 9 Geo. 4, c. 31, s. 32, enacts, "that all indictable offences mentioned in this act which shall be committed within the jurisdiction of the Admiralty of England, shall be deemed to be offences of the same nature, and liable to the same punishments, as if they had been committed upon the land in England, and may be dealt with, inquired of, tried, and determined in the same manner as any other offences committed within the jurisdiction of the Admiralty of the laws rela. England. Provided always, that nothing herein contained shall alter or affect any of the laws relating to the government of his Majesty's land or naval forces." at sea. Not to affect ting to the Offences com- the jurisdiction of the admi- The Central Criminal Court Act, 4 & 5 Wm. 4, c. 36, s. 22, enacts, that "it shall and may be lawful for the justices and judges of oyer and terminer, and gaol delivery to be named in, and appointed by the commissions to be issued under the authority of this act, or any two or more of them, to inquire of, hear, and determine any offence or offences committed, or alleged to have been committed on the high seas, and other places within the jurisdiction of the Admiralty of England, and to deliver the gaol of Newgate of any person or persons committed to, or detained therein for any offence or offences alleged to have been done and committed upon the high seas aforesaid, within the jurisdiction of the Admiralty of England; and all indictments found, and trials, and other proceedings had or taken by and before the said justices and judges of oyer and terminer, and gaol delivery shall be valid and effectual to all intents and purposes whatsoever." 2 we thall fortemate |