1868

v.

ANDERSON.

ceased to be under British protection, and therefore ceased to be THE QUEEN amenable to British law. The question here is, whether a person, killing another in a British ship afloat, is amenable to British law? A ship is a floating island, and it does not lose its character as such when in the river of another territory, but it still remains British, and subject to British law: R. v. Jemot (1); Reg. v. Allen. (2) Great inconvenience would ensue if that were not so. Crimes would frequently escape altogether unpunished. The French courts repudiate jurisdiction in the case of offences committed on board foreign merchant vessels by one member of the crew against another in French ports, unless the peace of the port is disturbed. They would take no cognizance of the offence in this case therefore: Wheaton's Int. Law (ed. 1864), pp. 202-3; Ortolan, Diplomatie de la Mer, Bk. 2, cap. 13, pp. 303-305, 3rd ed.; 269–271, 4th ed. Suppose the ship was in the waters of a savage country, if a person committing a crime could not be tried by the law of the ship, he would escape altogether: United States v. Holmes. (3) To give jurisdiction to the country to which a ship belongs, it is not necessary that the ship should be on the high seas at the time the crime is committed. It is sufficient if it be in tidal water, even though that water be in the body of another country, and where great ships go.

[BLACKBURN, J. The latter limitation is necessary, otherwise a foreign country might claim jurisdiction over a crime committed on a boat belonging to one of its vessels though as far up the Thames as Teddington.]

United States v. Wiltberger (4) seems to deny the jurisdiction of the nation to which the ship belongs when the ship is in the tidal river of a foreign power, but that case is opposed to United States v. Coombs (5), which shews that the jurisdiction exists in such cases. The true view of the law is, that if a British ship is in a foreign river, at a place where the tide ebbs and flows, and where great ships go, the jurisdiction of the Admiralty extends to her: Thomas v. Lane. (6) The struggle in former times was between the Common

(1) Old Bailey, 28th Feb. 1812, MS. Cited 1 Russ. on Crimes, 4th ed. p. 153, and Archbold's Crim. Plg. 16th ed. p. 395.

(2) 1 Mood. C. C. 494.

(3) 5 Wheat. 412.
(4) 5 Wheat. 76.
(5) 12 Peters. 72.

(6) 2 Sumner, 1.

1868

v.

ANDERSON.

Law courts and the Admiralty courts. If a crime was committed on a river in this country, then a conflict of jurisdiction arose; but THE QUEEN if the ship is in a foreign river, if the Admiralty has no jurisdiction, no court has. The earliest statutes on the subject of Admiralty jurisdiction are 3 Rich. II. c. 3, and 15 Hen. VIII. c. 15, but those statutes were passed not to limit the jurisdiction, but to cure defects of venue in certain cases: 1 Kent's Comm. 10th ed. pp. 409, 410. The American courts hold that the large lakes and rivers of that country are within Admiralty jurisdiction: Genesee Chief v. Fitzhugh. (1) Even supposing that the country of the river had concurrent jurisdiction, that could not affect the question. The true test is, does the jurisdiction of the Admiralty extend to the place where the ship is sailing, i.e., is the ship on the high seas, or in a tidal river of a foreign power, where great ships go? It is submitted that the ship in question did not lose its character as a British ship, by floating within a league of French territory in a tidal river. Where the ship is in a foreign port, it loses its character as a ship: United States v. Hamilton (2); but it does not lose that character while in a river. The flag of the ship extends its protection over all on board, as long as the character of ship remains, and in return for that protection, every person on board owes allegiance to the law of the flag. The prisoner, therefore, was within Admiralty jurisdiction; he had the protection of the British flag, and was therefore amenable to British law. M. Williams, in reply.

BOVILL, C.J. There is no doubt that the place where the offence was committed was within the territory of France, and that the prisoner was, therefore, subject to the laws of France, which that nation might enforce if they thought fit; but at the same time he was also within a British merchant vessel, on board that vessel as a part of the crew, and, as such, he must be taken to have been under the protection of the British law, and also amenable to its provisions. It is said that the prisoner was an American citizen, but he had embarked by his own consent on board a British ship, and was at the time a portion of its crew. There are many observations to be found in various writers to shew that in some instances, (1) 12 Howard, 443. (2) 1 Mason, 152.

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though subject to American law as a citizen of America, and to the THE QUEEN law of France as being found within French territory, yet that he

must also be considered as being within British jurisdiction as form-
ing a part of the crew of a British vessel, upon the principle, that
the jurisdiction of a country is preserved over its vessels, though
they may be in ports or rivers belonging to another nation. With
respect to France, M. Ortolan in his work (1) says, that it is clear,
that with regard to merchant vessels of foreign countries, the
French nation do not assert their police law against the crews of
those vessels, unless the aid of the French authority be invoked
by those on board, or unless the offence committed leads to some
disturbance in their ports. The law of France is very clear on
this point. Amongst the instances mentioned are two cases of
American vessels, one being in the port of Antwerp, and the other
in the port of Marseilles, where, offences being committed on board,
the Americans claimed the exclusive jurisdiction over their vessels;
though being in foreign ports, they were vessels belonging to
America. As far as America is concerned, she has by statute
made regulations for those on board her vessels in foreign ports,
and we have adopted the same course in this country. When
vessels go into a foreign port they must respect the laws of that
nation to which the port belongs; but they must also respect the
laws of the nation to which the vessel belongs. When our vessels
go into foreign countries we have the right, even if we are not
bound, to make such laws as to prevent disturbance in foreign
ports, and it is the right of every nation, which sends ships to foreign
countries, to make such laws and regulations. In the present case,
if it were necessary to decide the question upon the Merchant
Shipping Act, I should have no hesitation in saying that we have
the power to legislate for those persons who place themselves
under allegiance to us by becoming a portion of a British crew, and
there would be no inconsistency in including foreigners in such
legislation. What is the effect of the Merchant Shipping Act it is
not necessary now to decide, and therefore I do not feel it necessary
to enter into the question, for the Common Law of England, inde-
pendently of the statute, is in my judgment sufficient to decide
this case.
Here the offence is committed on board a British vessel
(1) Diplomatie de la Mer, Book 2, ch. 13, pp. 269-271, 4th ed.

If this offence had been committed upon the

1868

v.

ANDERSON.

by one of her crew. high seas, there could have been no doubt upon the question either THE QUEEN on principle or authority, and the offence then would have been committed clearly within the jurisdiction of the Admiralty, and therefore the Central Criminal Court would have stood in the same position as if the offence had been committed within its jurisdiction. on land. Then, is the case different because the offence was committed when the vessel was lying in the Bordeaux river, some miles from its mouth, and not in the open sea? The place where the vessel was lying was in a navigable river, in a broad part of it below all bridges, and at a point where the tide ebbs and flows and where great ships lie and hover. What difference is there between such a place and the high seas? The cases that have been cited clearly shew that the Admiralty has jurisdiction in such a place; if so, the case stands precisely the same as if the offence had been committed upon the high seas. On the whole, I have come clearly to the conclusion that the prisoner is amenable to British law, and that the conviction is right.

CHANNELL, B. I am of opinion that the conviction is right. The 267th section of 17 & 18 Vict. c. 104, has been referred to, especially by the counsel for the prisoner. I agree, however, with the view put forward by Mr. Poland, that it is not necessary to pray that section in aid, in order to support this conviction. I say that it is not necessary, because I especially wish to guard myself from saying that such a case may not fall within the statute whenever the point arises. I agree in thinking this Court must execute and exercise the power which is given by any English act of parliament, but I express no opinion as to whether the words used in that section are such as to cover the present case. In construing a statute of this kind we are at liberty to ascertain as near as we can, what the international law on the point is, and construe the words of the statute in harmony therewith. I agree, however, with my Lord Chief Justice, that that point does not arise; when it does, it will be time to consider it. The ground of decision in my opinion is that the ship in question was within the Admiralty jurisdiction at the time the offence was committed, and that that of itself is sufficient to support the conviction. It may

1868

THE QUEEN

บ.

ANDERSON.

not be however that the ship was at the time on the high seas, but she was within the Admiralty jurisdiction. I come to that opinion from the views expressed by various text-writers, and from the authority of the case of Reg. v. Allen (1), and the American case of Thomas v. Lane. (2) There may be some difficulty in dealing with the case of United States v. Wiltberger (3), but it does not seem to me to be altogether conflicting.

BYLES, J. I retain the opinion I expressed at the trial. I told the jury that the ship being a British ship was, under the circumstances, a floating island, where the British law prevailed; that the prisoner, though an alien, enjoyed the protection of the British law, and was as much subject to its sanctions, as if he had been in the Isle of Wight. Two English cases, Reg. v. Allen (1), and Reg. v. Jemot (4), and two American cases, Thomas v. Lane (2) and United States v. Coombs (5), 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 jurisdiction of the country to which she belongs. The only consequence of the ship being within the ambit of French territory, is that, (the vessel not being an armed vessel) there might have been concurrent jurisdiction, had the French law claimed it. If the murder had been committed on shore, and it had become necessary to consider the international effect of the Merchant Shipping Acts, I should have required further time for consideration.

BLACKBURN, J. I am also of opinion that the prisoner was rightly convicted, and that it is not necessary to consider the effect of the 267th section of the Merchant Shipping Act, 1854. There are numerous cases which shew that where English law would have had jurisdiction over a prisoner, the matter of venue is cured by statutes passed for the removal of technical rules, and that he could properly be tried in the Central Criminal Court. Then the question arises, had any of the Queen's courts jurisdiction at all

(1) 1 Mood. C. C. 494.

(2) 2 Sumner, 1.

(3) 5 Wheat. 76.

(4) Old Bailey, 28th Feb. 1812, MS.

1 Russ. on Crimes, 4th ed. 153; Arch-
bold's Crim. Plg. 16th ed. P. 395.
(5) 12 Peters, 72.