2. Trial in. have been named and sat in their commission; but the words pretend to have must not be extended to such a pretence as is without any right at all, as if the admiral pretend jurisdiction on the shore when the water is reflowed, yet he hath no cognizance of a felony committed there. (Lacie's case, 2 Hale's P. C. 17; ante, 49.) The jurisdiction for the trial of offences under the statute of 28 Hen. VIII. c. 15, only extended to the offences therein named, viz. treasons, felonies, robberies, murders, and confederacies, and did not give conusance of any felony not a felony at land, nor to any new created felony created by statute since the passing of that act. (See Rer v. Snape, 2 East's P. C. 807; 2 Harck. c. 25, s. 45.) To remedy this the stat. 39 Geo. III. c. 37, enacts, "that all offences committed on the high seas, out of the body of any county, shall be offences of the same nature, and liable to the same punishments, as if they had been committed on shore, and shall be inquired of, heard, tried and adjudged as offences under stat. 28 Hen. VIII. c. 15." And by 7 & 8 Geo. IV. c. 30, s. 43, relating to malicious injuries to property, "where any felony or misdemeanor punishable under this act, shall be committed within the jurisdiction of the admiralty of England, the same shall be dealt with, inquired of, tried, and determined in the same manner as any other felony or misdemeanor committed within that jurisdiction." And by 7 & 8 Geo. IV. c. 27, s. 77, relating to larceny and other offences connected therewith, "where any felony or misdemeanor, punishable under this act, shall be committed within the jurisdiction of the admiralty of England, the same shall be dealt with, inquired of, tried, and determined, in the same manner as any other felony or misdemeanor committed within that jurisdiction." And by 9 Geo. IV. c. 31, s. 32, relating to injuries to the person, "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 England." This provision is substituted for those contained in sect. 2 of the stat. 1 Geo. IV. c. 90, which made offences under Lord Ellenborough's act, if committed at sea, triable at the admiralty sessions; and that section is now repealed. Also, by 11 Geo. IV. & 1 Will. 4, c. 66, s. 27, relating to forgery, "where any offence punishable under this act shall be committed within the jurisdiction of the Admiralty, the same shall be dealt with, inquired of, tried, and determined in the same manner as any other offence committed within that jurisdiction ;" and the 7 Will. IV. & 1 Vict. c. 85, s. 10, relating to offences against the person; the 7 Will. IV. & 1 Vict. c. 86, s. 10, relating to burglary and stealing in a dwelling house; the 7 Will. IV. & 1 Vict. c. 87, s. 13, relating to robbery and stealing from the person; and the 7 Will. IV. & 1 Vict. c. 89, s. 14, relating to burning or destroying buildings or ships; all contain similar enactments with respect to the offences punishable under these acts respectively. By the 11 & 12 Will. III. c. 7, made perpetual by 6 Geo. I. c. 19, piracies and felonies upon the sea, &c. may be inquired of in any place at sea or upon land in his Majesty's dominions, appointed by the king's commission. Also by the stats. 4 Geo. I. c. 11; 8 Geo. I. c. 24, and 2 Geo. II. c. 28, several piratical offences therein mentioned, and by stat. 18 Geo. II. c. 30, certain acts of hostility committed at sea in time of war, may be inquired of and tried in the admiral's court; and see 2 & 3 Anne, c. 20, s. 35. For the acts against the wilful destruction of ships, see" Ships," Vol. V. The piratically stealing a ship's anchor is a capital offence by the marine laws, triable under the stat. 28 Hen. VIII. and the stat. 39 Geo. III. c. 37, does not extend to that case; and the stealing is equally an offence whether the master concur in it or not, and whether to defraud the underwriters or the owners. (Rex v. Aveling, Russ. & R. C. C. 123.) Upon the statute 28 Hen. VIII. c. 15, a doubt arose whether one who was accessary at land to a felony committed at sea, was triable by the admiral within the purview of it; (Yelv. 134; 13 Co. 51;) but by the stat. 11 & 12 Will. III. c. 7, made perpetual by 6 Geo. I. c. 19, accessaries to piracy may be inquired of according to the stat. 28 Hen. VIII. c. 15. And by the stat. 7 Geo. IV. c. 64, s. 9 & 10, ante, 29, 30, all accessaries to felonies committed upon the high seas, whether the offence of becoming accessary shall have been committed within the body of a county of the realm or upon the high seas, may be tried by any court that may try the principal felon. 2. Trial in. Accessaries. With respect to the mode of trial in this court, all offences committed on Mode of trial. the seas are tried before commissioners nominated by the Lord Chancellor, Judges. the indictment being first found by a grand jury of twelve men, and afterwards tried by another jury, as at common law; the course of proceedings being according to the law of the land. Among the commissioners are always the deputy of the admiral, or the judge of the admiralty, and two or more of the common law judges; see stat. 28 Hen. VIII. c. 15, s. 1, 2. (4 Bla. C. 269.) The mode of trial in the admiralty court 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 which our common law is not able to invest. (Per Mansfield, C. J.; Rex v. Depardo, 1 Taunt. R. 29.) The stat. 32 Geo. II. c. 25, s. 20, for the more speedy bringing of offenders Times for holding to justice, &c. enacts, "that a session of oyer and terminer and gaol delivery the court. for the trial of offences committed on the high seas within the jurisdiction of the admiralty of England, shall be 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. (Sed query if this provision be not expired.) Court. When offenders are first committed to Newgate for the offences above- Central Criminal mentioned, the Central Criminal Court act, 4 & 5 Will. IV. 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 the 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, or 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 or committed upon the high seas, within the jurisdiction of the admiralty of England; and all indictments found, and trials and other proceedings had and taken by and before the said justices and judges, shall be valid and effectual to all intents and purposes whatsoever. The same section enables the justices and judges to order the payment of costs in the manner prescribed by the stat. 7 Geo. IV. c. 64, s. 27, infra. An accessary before the fact to a felony committed on the high seas within the jurisdiction of the Admiralty of England may be indicted and tried at the Central Criminal Court, by virtue of the stats. 7 Geo. 4, c. 64, s. 9, and 4 & 5 Will. IV. c. 36, although the person charged as the principal offender has not been committed to or detained in the gaol of Newgate for his offence. (Rex 1. Wallace, 1 C. & Mar. 200.) III. Expenses of Prosecutions, &c. By the stat. 7 Geo. IV. c. 64, s. 27, for enabling the high court of admi- Expenses of proralty to order the payment of the costs and expenses of prosecutors and wit- secutions in. nesses, and compensation for their trouble and loss of time, in cases in which other courts have a like power under this act, it is enacted, "That it shall be [s. III. 3. Expenses lawful for the judge of the said court of admiralty, in every case of felony. of Prosecu- and in every case of misdemeanor of the denominations herein before enutions, &c. merated, committed upon the high seas, to order the assistant to the counsel for the affairs of the admiralty and navy to pay such costs, expenses and compensation to prosecutors and witnesses, in like manner as other courts may order the treasurer of the county to pay the same; and such assistant is hereby authorised and required, upon sight of every such order, forthwith to pay to the person named therein, or to any one duly authorised to receive the same on his or her behalf, the money in such order mentioned, and shall be allowed the same in his accounts." This enactment puts prosecutions in the High Court of Admiralty on the same footing as those in other criminal courts, in regard to the allowance of prosecutors' expenses. See further post, “Costs." The 4 & 5 Will. IV. c. 36, s. 22, the Central Criminal Court Act, enables the judges and justices to order the payment of costs in the manner prescribed by the above act of 7 Geo. 4, c. 64. Punishment of diction of. IV. Punishment of Offences in Jurisdiction of. With respect to the punishment of offences committed in the jurisdiction offences in juris- of the Admiralty, it is by the stat. 7 & 8 Geo. IV. c. 28, s. 12, enacted, "That all offences prosecuted in the 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." Commissioners or justices to have jurisdiction, &c. As to the punishment of offences against the person, &c. see the 9 Geo. IV. c. 31, s. 32, ante, 50. V. Summary Jurisdiction of Justices, &c. other Offences in Jurisdiction of. By the 7 Geo. IV. c. 38, "it shall and may be lawful to and for any one or more of the commissioners for the time being, named or to be named in the commission of oyer and terminer, for the trying of offences committed within the jurisdiction of the admiralty of Englahd; and also to and for any one or more of the commissioners for the time being, named or to be named in any commission made or granted under or by virtue of the act of the 46 Geo. III. c. 54; and also to and for any one or more of his Majesty's justices of the peace for the time being for any county, riding, division, or place in the United Kingdom, and they are hereby respectively authorised, empowered, and required, from time to time, to take any information or informations of any witness or witnesses upon oath, which oath they and each of them are hereby respectively authorised to administer, touching any treason, piracy, felony, robbery, murder, conspiracy, or other offence, of what nature or kind soever, committed upon the sea, or in any haven, river, creek, or place where the admiral or admirals hath or have power, authority, or jurisdiction; and thereupon, (if such commissioner or commissioners, justice, or justices of the peace, shall see cause,) by any warrant or warrants under his or their hand and seal or hands and seals, to cause the person or persons charged in such information or informations to be apprehended and committed to safe custody, to remain in such custody until discharged in due course of law, or until bailed, in cases in which bail may by law be taken." This enactment, authorising magistrates to commit or bail on charges of offences alleged to have been committed within the jurisdiction of the admiralty, is new and important. As to the commitment of offenders, in cases of murder or manslaughter on land out of the United Kingdom, see " Foreign Country," Vol. II. As to the jurisdiction of justices over offences committed on the high seas 5. Jurisdiction against the customs or excise laws, and their power of mitigating penalties, of Justices, &c. see post, tit. "Excise and Customs," Vol. II. VI. Forms. (a) Excise and customs. To all Constables and others her Majesty's officers of the peace for the county of Warrant of one of [Middleser and city and liberty of Westminster,] whom these may concern, and especially to A. B. Admiralty of England, (to wit.) These are in her Majesty's name to command you and every of you, upon sight hereof, to take and bring before me, one of the commissoners of over and terminer for the jurisdiction of the Admiralty of England, the body of C. D., late [seaman in her Majesty's frigate, ] of whom you shall have notice, to answer all such matters and things as on her Majesty's behalf are on oath objected against him by A. B., captain, and others, on suspicion of having been guilty of [the wilful murder of E. H., a seaman on board the said frigate,] at and on the high seas within the jurisdiction of the Admiralty of England, against the peace [and against the statute.] Hereof fail not at your peril. Given under my hand and seal this day of 1843. E. F. (L.S.) commissioners under Admiralty commission to apprehend person on suspicion of murder on high seas. tery on high seas. To all Constables and others her Majesty's officers of the peace whom these may concern. The like for an Admiralty of England, (to wit.) These are in her Majesty's name to command assault and batyou and every of you upon sight hereof to take and bring before me or some other of her Majesty's commissioners for the jurisdiction of the Admiralty of England, the body of C. D., of whom you shall have notice, to answer all such matters and things as in her Majesty's behalf are on oath objected against him by A. B. for [violently essaulting, beating, and bruising him on, &c. on board a certain ship called ] on the high seas, within the jurisdiction of the Admiralty of England aforesaid, against the peace [and against the statute.] Hereof fail not at your peril. Given under my E. F. (L. S.) hand and seal this day of 1843. Admissions, see "Confessions," Vol. I.; "Evidence," Vol. II. Ad quod damnum, Writ of, see "Highways," Vol. III. Adultery, see "Lewdness," Vol. III. Advertising for Stolen Goods, see "Larceny," Vol. III. Advertisements in Newspapers, &c. Duty on, see papers," Vol. V. Assessors, sce "Leet," Vol. III. Affidabit, see "Oath," Vol. V. As to Proof and Effect of, see (a) See form of Admiralty Commission, 2 East's P. C. 795; 4 Ch. C. L. 160. Affirmation of Quakers, see "Oath," Vol. V.; "Evidence, Vol. II. Affray. What an affray in general. Words do not amount to. Challenge to fight. Duel. Where no violence. Carrying arms, 2 Edw. 3, c. 3. As to riots, see post, “ Riots,” Vol. V. Herein of, I. What is an Affray, 54. II. How far it may be suppressed by a Private Person, 56. IV. How far by a Justice of the Peace, 57. V. Punishment of an Affray, 57. VI. Forms, 57. 1. What is an Affray. An affray is a public offence to the terror of the Queen's subjects; so called (according to Lord Coke) because it affrighteth and maketh men afraid. (3 Inst. 158.) From whence it seemeth clearly to follow, that there may be an assault which will not amount to an affray; as where it happens in a private place, out of the hearing or seeing of any, except the parties concerned, in which case it cannot be said to be to the terror of the people. (1 Hawk. c. 63, s. 1.) Also it is said, that no quarrelsome or threatening words whatsoever shall amount to an affray; and that no one can justify laying his hands on those who shall barely quarrel with angry words without coming to blows; yet it seemeth, that the constable may, at the request of the party threatened, carry the person who threatens to beat him before a justice, in order to find sureties. (1 Hawk. c. 63, s. 2.) Also it is certain, that it is a very high offence to challenge another either by word or letter to fight a duel, or to be the messenger of such a challenge; or even barely to endeavour to provoke another to send a challenge, or to fight, as by dispersing letters to that purpose full of reflections, and insinuating a desire to fight. (1 Hawk. c. 63, s. 3. See also, post, "Challenge to Fight.") It should seem a duel as managed in the present times is not an affray. (See 1 Russ. C. & M. 398, n.) But although no bare words, in the judgment of law, carry in them so much terror as to amount to an affray, yet it seems certain, that in some cases there may be an affray where there is no actual violence; as where a man arms himself with dangerous and unusual weapons in such a manner as will naturally cause a terror to the people, which is said to have been always an offence at the common law, and is strictly prohibited by statute; for by statute 2 Edw. III. c. 3, it is enacted, that no man of what condition soever, except the king's servants in his presence, and his ministers in executing their office, and such as be in their company assisting them, and also upon a cry made for arms to keep the peace, shall come before the King's justices or other of the King's ministers doing their office with force and arms, nor bring any force in affray of peace, nor go nor ride armed by night or day in fairs or markets, or in the presence of the King's justices or other ministers or elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison, at the King's pleasure. And the King's justices in their presence, |