Jurisdiction. Common law jurisdiction over offences committed at sea before stat. 28 H. 8. c. 15. Admiralty jurisdiction within a county considered. Admiralty Court. A sketch of the jurisdiction of this court in criminal matters may be useful to point out the limits of the common law powers herein. [See Stats. 15 R. 2. c. 3. 28 H. 8. c. 15. 35 H. 8. c. 2. 11 & 12 W.3. c. 7. 2 & 3 A. c. 20. 4 G. 1. c. 11. 6 G. 1. c. 19. 8 G.1. c. 24. 2 G. 2. c. 28. 18 G. 2. c. 30. 32 G. 2. c. 25. 39 G. 3. c. 37. Repealed by 6 G. 4. c. 105. 7 & 8 G. 4. c. 28. c. 29. c. 30. 9 G. 4. c. 31. 7 G. 4. c.64.] THE Court of Admiralty hath jurisdiction of all things done super altum mare out of any county (4 Inst. 134. Stat. 5 El. c. 5. § 30.), viz. on the main sea, or the coasts of the sea, out of any county, cinque port, haven, or pier. Stat. 27 El. c. 11. 4 Inst. 137. It appears that at common law, the K. B. bad usually cognizance of felonies and treasons done on the narrow seas or coasts, though out of the bodies of counties: and that they were presented and tried by juries of the adjacent counties. 1 Hale's P. C. 154. 2 id. 12. The general commissions of oyer and terminer of felonies infra comitatum did not extend to such offences, 1 Hale's P. C. 154. 2 id. 15., and special commissions to hear and determine them on the coasts "secundum legem et consuetudinem regni Anglia," were often issued, naming the admiral and his lieutenant commissioners, ibid. In 35 Ed. 3. A. D. 1360–61., this common law jurisdiction was interrupted by a special order of the King and Council, and no exercise of it had occurred in Lord Hale's time since 38 Ed. 3. 2 Hale's P. C. 15. citing claus. 35 Ed. 3. M. 28. dorso. From that period to stat. 28 H. S. c. 15., offences committed on the high seas or on the coasts out of the body or extent of any English county, were usually tried by the admiral or his deputy (now styled judge of the admiralty), according to the course of civil law, and without a jury. No conviction or sentence of death could therefore take place except on the evidence of two witnesses or the confession of the offender. 4 Bla. Com. 268. Preamble to 28 H. 8. c. 15. It is perfectly agreed that the admiral never had jurisdiction in any creek, river, or port within the body of a county: See preamble to Stat. 15 R. 2. c. 3. and authorities collected, 1 Stark. C. P. 16. n. (a), till authorized by stat. 15 Ric. 2. c. 3. to inquire of "deaths and mayhems done in great ships hovering in the main streams of great rivers below the bridges of the same rivers, nigh to the sea." This peculiar jurisdiction of the admiral is concurrent with that of the K. B. and of general commissions of oyer and terminer infra comitatum, 2 Hale, 16. 54., and does not exclude the common law. 1 East's P. C. 368. In a late case at the admiralty session, of a murder committed Or, "below the points or reaches of the same rivers, nearest to the sea." Cay's Abridgt. cited Tomlins's Edit. of the Statutes at note (12.). 4 Inst. 137. but all the other authorities read in a part of Milford haven, never known to be dry except at the very lowest tide, and which was about three miles over, about seven or eight miles from the mouth of the river or open sea, and about 16 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 stat. 28 H. 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, Lord Hale's construction of this act, in 2 Hale, P. C. 16, 17, 18. was much preferred to the doctrine of Lord Coke in 3 Inst. 111. 4 Inst. 134., 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. Bruce's case, 2 Leach, C. C. 1093. C. C. R. 243. In the consideration of the above case, it appeared to the judges that the 28 H. 8. applied to all great waters frequented by ships; that in such waters the admiral in the time of H. 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. MS. Bayley B. cit. 1 Russ.107. By stat. 28 H.8. c. 15. A.D. 1536, treasons, felonies, robberies, 28 H. 8. c. 15. murders, and confederacies committed in or upon the sea, or in any haven, river, creek or place where the admiral has or pretends to hare jurisdiction, shall be tried according to the course of common law, and in such places and counties as shall be appointed by the king's commission, in like manner and form as if the same had been committed upon land. Upon the sea.] This statute does not give the admiral jurisdiction in any river, creek or port within the body of a county; and the main question of jurisdiction arising on the statute is, Whether the fact happened at any place within the body of a county? If it did, the trial must be had before the ordinary jurisdiction: for the admiral can have no jurisdiction there, unless by positive statute. 1 Russ. 144. citing 4 Inst. 137. and see stat. 15 R. 2. c. 3. Upon the open sea shore, the common law and admiralty have High and low alternate jurisdiction over the space between high and low water water mark. mark, 3 Inst. 113. 2 Hale's P. C. 17. (a), so that if a man stricken on the high sea die on the shore on the reflux of the tide, the case is out of the admiral's jurisdiction. Lacie's case, 2 Hale's P. C. 17. 20. 1 East's P. C. c. 5. § 131. sea. A. standing on the shore of a harbour, fired a loaded musket Shooting from at a revenue cutter which had struck on a sand-bank in the sea the land, and about 100 yards from shore, by which firing a person was malici- killing on the ously killed on board the vessel. This was held to be piracy, for the offence was committed where the death happened, and not at the place from whence the cause of death proceeded. 1 Russ. 145, 146. citing 1 Hawk. P. C. c. 37. § 17. Coombe's case, (a) For though the land be infra corpus comitatús at the reflow, yet when the sea is full, the admiral hath jurisdiction super aquam, as long as the sea flows, 3 Inst. 115.; and see id. 54. and 2 Hawk. c. 9. § 14., as to the jurisdiction of the county coroner in offences on the sea shore, great rivers, &c. Goods stolen on sea and brought on shore. Criminal jurisdiction in harbours or below the bridges in great rivers. 35 H. 8. c. 2. 28 H. 8. c. 15. Accessary at land to felony or 1 Leach, 388. 1 East's P. C. c. 5. § 131. See Grosvenor v. St. Augustine's Lath. Tit. Excise and Customs. If it appears 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. 2 East's P. C. c. 17. s. 12. p. 805. 3 Inst. 113. 1 Russ. 145. It is sometimes difficult to fix the line of demarcation between the county and the high sea in harbours, or below the bridges in great rivers. The following general rules on the point are however collected by Sir E. H. East, 2 P. C. c. 17. s. 10. "It is plain that the admiral can have no jurisdiction in any rivers, or arms or creeks of the sea, within the bodies of counties, though within the flux and reflux of the tide; except in the particular instances of mayhem and homicide, done in great rivers, beneath the bridges near the sea, which depends on stat. 15 Ric. 2. c. 3. 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 (13 Rep. 52.), 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." Where the admiral pretends to have power.] These words are not to be extended to such a pretence as is without any right at all. 2 Hale's P. C. 17. 1 Hawk. P. C. c. 37. s. 11. 4 Inst. 137. 2 East, P. C. c. 17. s. 10. Thus a felony committed between high and low water mark, after the water is reflowed, is not within the admiral's jurisdiction by these words, 2 Hale's P. C. 17.; but these words are to be understood between the high and low water marks, 3 Inst. supra, 113.; and in great rivers, where the sea flows and reflows below the first bridges, and also in creeks of the sea, at full water, where the sea flows and reflows, and upon high water upon the shore, though these are possibly within the body of the county (a): for there at least, by stat. 15 R. 2., they have a jurisdiction, and thus, accordingly, it has been constantly used in all times, even when common law judges 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. 2 Hale, P. C. 17. Lacie's case, cited ut supra. This act, with respect to treasons done at sea, is not repealed by 35 H. 8. c. 2. Upon this statute, 28 H. 8. c. 15. a doubt arose, whether one who (a) See antè, Bruce's case. was accessary at land to a felony committed at sea, was triable by the admiral within the purview of it; but, by the stat. 11 & 12 W.3. c. 7., made perpetual by 6 G. 1. c. 19., accessaries to piracy may be inquired of, according to the stat. 28 H. 8. c. 15. Also by the same statute, piracies and felonies upon the sea, &c. may be inquired of in any place at sea, or upon land in H. M.'s dominions, appointed by the king's commission. Also, by the stats. 4 G. 1. c. 11., 8 G. 1. c. 24., and 2 G. 2. c. 28., several piratical offences therein mentioned, and by stat. 18 G. 2. 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 A. c. 20. § 35. piracy at sea. 11&12 W.3. c.7. 6 G. 1. c. 19. 4 G. 1. c. 11. 8 G. 1. c. 24. 2 G. 2. c. 28. 18 G. 2. c. 30. 2 & 3 A. c. 20. The stat. 39 G. 3. c. 37. enacts, that all offences committed on 39 G. 3. c. 37. the high seas, out of the body of any county, shall be offences of Jurisdiction the same nature, and liable to the same punishments, as if they had over what been committed on shore, and shall be inquired of, heard, tried, and adjudged, as offences under stat. 28 H.8. c. 15. offences. By 7 & 8 G. 4. c. 28. (a) § 12. all offences prosecuted in the High Punishment. 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. By 7 & 8 G. 4. c. 29. § 77. where any felony or misdemeanor Trial, &c. punishable under this act (b) 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. By 7 & 8 G. 4. c. 30. § 43. where any felony or misdemeanor Trial, &c. punishable under this act (c) 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. By 9 G. 4. c. 31. § 32. all indictable offences mentioned in this Trial, &c. act (d), 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: 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. By 7 G. 4. c. 64. § 27. for enabling the High Court of Admiralty Costs, &c. in to order the payment of the costs and expenses of prosecutors, Admiralty &c. and compensation for their trouble, &c. in cases where other Court. courts have a like power under this act (e), it is enacted that it shall be lawful for the judge of the said Court of Admiralty in every case of felony, and in every case of misdemeanor of the denominations herein-before enumerated, 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 pro (a) Act for further improving the administration of criminal justice. (b) Larceny act. (c) Concerning malicious injuries to property. (d) Relative to offences against the person. (e) For improving the administration of criminal justice. Offence of accessary com secutors and witnesses in like manner as other courts may order the treasurer of the county to pay the same. By 7 G. 4. c. 64. § 9. an accessary before the fact may be tried, &c. by any court which has jurisdiction to try the principal feion, mitted on high though the offence of such accessary may have been committed on the high seas, or at any place on land, whether within his Majesty's dominions or without. sea. 28 H. 8. c. 15. Mode of trial, and judges. Sec. 10. makes a similar provision with respect to accessaries after the fact. See antè, tit. Accessaries. All offences committed on the seas are tried before commissioners nominated by the Lord Chancellor, the indictment being first found by a grand jury of 12 men, and afterwards tried by another jury, as at common law the course of proceedings being Commissioners. 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 H. S. c. 15. §§ 1, 2. 4 Bla. C. 269. 1 Chit. Cr. L. 152. The stat. 28 H. S. merely altered the mode of trial in the Admiralty Court, and its jurisdiction continues to rest on the same foundation as before that act. It is regulated by the civil law, et per consuetudines marinas founded on the law of nations, which may possibly give to that court a jurisdiction which our common law has not. Per Mansfield C. J. Rex v. Depardo, 1 Taunt. R. 29. S2 G. 2. c. 25. Times for holding the court. Ships. Forging hand of registrar. What is an affray. The stat. 32 G. 2. c. 25. § 20. for the more speedy bringing of offenders to justice, &c., enacts that a session of oyer and terminer and gaol delivery 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. For the acts against wilful destruction of ships, sce Malicious Injuries. Wreck. As to the forging the signature of the registrar of the Court of Admiralty, or High Court of Appeals for prizes, or his deputy, to certain instruments, see stat. 53 G. 3. c. 151. § 12. Forgery. I. What is an Affray. Affray. II. How far it may be suppressed by a private Person. IV. How far by a Justice of the Peace. V. Punishment of an Affray. I. What is an Affray. AN affray is a public offence to the terror of the king's subjects; so called (according to Lord Coke), because it afrighteth 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 |