dominions which would have had cognizance of such crime or offence, if committed within the limits of its ordinary jurisdiction, such Court shall have jurisdiction to hear and try the case as if such crime or offence had been committed within such limits. Provided that nothing contained in this Section shall be construed to alter or interfere with the Act 12 & 13 Vict. c. 96." (See its provisions p. 9.)

This Statute is to be taken as part of the Merchant Shipping Act, 1854, (17 & 18 Vict. c. 104) by s. 2 of which it is provided that "Her Majesty's Dominions" includes all territories (then) under the Government of the E. I. Company.

The first question upon this Act is as to the meaning of the words "British subject." These words have got two perfectly distinct meanings. One is a person who owes allegiance to the British Crown, by birth or naturalization. (Reg. v. Manning, 2 C. & K. 900.) The other is a person who by reason of his British origin is to a certain degree exempt from the Criminal jurisdiction of the Mofussil Courts. (See Book II. Want of jurisdiction.) The former I conceive to be the meaning in the Statute quoted. It will be observed that the Act is an amendment of the Merchant Shipping Act, which applies generally to every part of the British dominions. It seems clear that the word British when qualifying subject must mean the same thing as it does when qualifying Ship, and in either case must be taken simply as opposed to foreign. Accordingly, upon the construction of another Criminal Statute, 9 Geo. IV. c. 31, s. 7, the words His Majesty's subject, and British subject, were treated by the Court as synonymous terms, in dealing with a Native of Malta. (Reg. v. Azzopardi, I. C. & K. 203-207. See too Reg. v. Manning, 2 C. & K. 900.) The restricted meaning of the term would become important for the first time when the question arose, what Court in India was to try the prisoner? For instance, suppose an English Sailor and a Malabar Coolie returning from the West Indies join in robbing a passenger on board a British Ship while it is in a foreign port, and are arrested when they reach India; both would be amenable to the jurisdiction of the Indian Courts, as being in the general sense British subjects. But the Englishman as being a British subject in the restricted sense, could only be tried before the High Court, while the coolie might be tried by any Court in the Mofussil within whose jurisdiction he was found, provided it was capable of taking cognizance of theft.

A prisoner is "found within the jurisdiction" under the meaning of this Statute, when he is actually present there, whether he came voluntarily or was brought by force; and even the fact of his having been illegally put on board the ship where he committed the crime, makes no difference in the criminality of the act, or the jurisdiction of the Court to try it. (Reg. v. Lopez, 27 LJ. MC. 48. D. & B. 525.)

The saving clause to this Section points out that the English law is to be applied as the law of punishment. (See 7 Bom. HC. CC. 126.) The Supreme Courts in India have always had an Admiralty jurisdiction by virtue of their respective Charters, and under 53 Geo. III. c. 155. s. 110, which, after reciting a doubt whether the Admiralty jurisdiction extended to any persons but those who were amenable to their ordinary jurisdiction, enacted,

"That it shall and may be lawful for his Majesty's Courts at Calcutta, Madras and Bombay, exercising Admiralty jurisdiction, to take cognizance of all crimes perpetrated on the high seas by any person or persons whatsoever in as full and ample a manner, as any other Court of Admiralty jurisdiction." (See as to this jurisdiction, 1 Russ. 162. n. 4th. ed.)

The Admiralty jurisdiction of the new High Courts of Judicature now rests upon Act 24 & 25 Vict. c. 104, s. 9, and ss. 32 & 33 of the Letters Patent of 1865 constituting such Courts.

Till lately the Mofussil Courts have had no similar jurisdiction. Now by the combined effect of 12 & 13 Vict. c. 96 and 23 & 24 Vict. c. 88, s. 1, it is enacted,

"That if any person in British India shall be charged with the commission of any treason, piracy, felony, robbery, murder, conspiracy or other offence, of what nature soever, committed upon the sea or in any haven, river, creek or place where the Admiral has power, authority or jurisdiction, or if any person charged with the commission of any such offence upon the sea, or in any such haven river, creek or place, shall be brought for trial to British India, then and in every such case all Magistrates, Justices of the Peace, public prosecutors, juries, judges, Courts, public officers, aud other persons in India shall have and exercise the same jurisdiction and authorities for inquiring of, trying, hearing, determining and adjudging such offences, and they are hereby respectively authorised, empowered and required to institute and carry on all such proceedings for the bringing of such person so charged as aforesaid to trial, and for and auxiliary to and consequent upon the trial of any such person for any such offence wherewith he may be charged as aforesaid, as by the law of British India would and ought to have been had and exercised, or instituted and carried on by them respectively if such offence had been committed, and such person had been charged with having committed the same, upon any waters situate within the limits of British India, and within the limits of the local jurisdiction of the Courts of Criminal Justice." (And see. Cr. P. C. s. 157 ante p. 4.) " Provided always, that if any person shall be convicted before any such Court of any such offence, such person so convicted shall be subject and liable to, and shall suffer all such and the same pains, penalties and forfeitures as by any law or laws now in force persons convicted of the same respectively would be subject and liable to, in case such offence had been committed, and were inquired of, tried, heard, determined and adjudged in England, any law, statute or usage to the contrary notwithstanding." (12 and 13 Vict. c. 96. ss. 1. 2.)

The effect of these provisions is to apply the Indian procedures to the English criminal law as it existed in the year 1850 when the Stat. 12 and 13 Vict. c. 96 was passed. The person can only be charged with that which was an offence where it was committed, viz. on the high seas, where the criminal law of England prevails. He could not be indicted in India for adultery on the passage out, as that is not an offence by English law. When convicted, his punishment will be the same as it would have been, had he been tried in London in 1850. Therefore he could not be whipped for a theft. But he could not claim to be tried by a Jury in the Mofussil, or by a jury de medietate linguæ in the Presidency Towns, for that is matter of mere procedure.

Accordingly in a recent case in Bengal, a prisoner, a British subject, was charged under 1 Vict. c. 85, s. 2 with feloniously wounding another person on a British ship on the high seas, with intent to disable. The jury found him guilty of unlawfully wounding, without the felonious intent, which was a verdict that they could lawfully bring in upon

such an indictment, under the provisions of 14 and 15 Vict. c. 19 s. 5. It was held that the prisoner was punishable under English law, and that he was properly charged with an offence under English law, and that upon such charge he could be convicted of any offence, of which he could under English law have been convicted on a charge so framed. But that the procedure was that of the place of trial, and therefore the prisoner could not object to the absence of a grand Jury, which was abolished by Act. XIII of 1865. (Reg. v. Thompson, 1 B. O. CR. 1.)

Subsequent to the case of Reg. v. Thompson, the Statute 30 & 31 Vict. c. 124 was passed. It is to be cited as the Merchant Shipping Act 1867, and construed with and as part of the Merchant Shipping Act 1845. (s. 1). By s. 11 it is provided that

"If any British subject commits any crime or offence on board any British Ship, or on board any foreign Ship to which he does not belong, any Court of Justice in Her Majesty's Dominions, which would have had cognizance of such crime or offence, if committed on board a British Ship within the limits of the ordinary jurisdiction of such Court, shall have jurisdiction to hear and determine the case as if the said crime or offence had been committed as last aforesaid."

This Section it will be observed makes no reference, expressly or by implication, to English law. But it was held by the Bombay High Court that inasmuch as the Act was to be read with the Merchant Shipping Act 1854, and the amending Act of 1855, (18 and 19 Vict. c. 91) and contained no recital or evidence of any intention to depart from the well-marked policy of the principal and amending Acts, in prescribing the English law as the substantive law by which cases should be decided, it did not authorise a conviction under the Penal Code of a British subject who had burnt a British Ship on the high seas, upwards of fifty miles from the coast of India. The word "determine" was not in the opinion of the Court of itself any sufficient indication of such an intention, contrary as it would be to the Merchant Shipping Code, which the principal and amending Acts form. (Reg. v. Elmstone. 7 Bom. CC. 128.)

It is a curious instance of the carelessness with which English Statutes are drawn, that the Merchant Shipping Code contains three distinct provisions as to criminal jurisdiction; the first of which (17 & 18 Vict. c. 104. s. 267,) directs the punishment to be according to Admiralty jurisdiction, without specifying any time. The second (18 & 19 Vict. c. 91. s. 21) incorporates another Statute which defines the punishment as being according to the laws in force in 1850, while the third (30 & 31 Vict. c. 124. s. 11) says nothing about the law or its period. Accordingly in the case of Reg. v. Elmstone the prisoners were punished under 24 & 25 Vict. c. 97. It is a curious circumstanco with regard to Thompson's case, (1 B. O. Cr. 1) that, he, not being a Master Seaman or Apprentice, did not come within 17 & 18 Vict. c. 104. s. 267, and was only triable under 12 & 13 Vict. c. 96 as extended to India. Yet he was convicted under a law which was not in force at the passing of that Statute.

Where however the offence was committed within three miles of the Indian Coast, it was suggested by Holloway, J. that the locality was "within the territories" of British India, as defined in ss. 1 & 2 of the Indian Penal Code, and that the offence ought to be charged

under that Code. (Reg. v. Irvine, 1st Mad. Sessions, 1867.) This view is in accordance with that taken by the High Court, (5 Mad. H.C. Rul. 13.) and by the Bombay High Court in Elmstone's case. (7 Bom. C.C. 102.) Also with the opinion of the Law Officers of the Crown cited in Forsyth's Cases and Opinions, 24. (Acc. 8 Bom. C.C. 63.)

Where any person dies in India of a stroke, poisoning or hurt inflicted within the Admiralty jurisdiction, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or manslaughter, or of being accessory before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, enquired, tried, determined and punished in India in the same manner in all respects as if such offence had been wholly committed in India. But where the death has occurred upon the sea, or within Admiralty jurisdiction then "such offence shall be held for the purpose of this Act to have been wholly committed upon the sea." (12 & 13 Vict. c. 96. s. 3.)

Where a person charged under this Act has, and claims, the privilege of being tried by the High Court,

"The Court excrcising criminal jurisdiction shall certify the fact and claim to the Governor of such place, or chief local authority thereof, and such Governor or chief local authority shall thereupon order and cause the said person charged to be sent into custody to such one of the Presidencies as such Governor shall think fit, for trial before the Supreme (High) Court of such Presidency, and the said Supreme Court, and all public officers and other persons in the Presidency, shall have the same jurisdiction and authorities, and proceed in the same manner in relation to the person charged with such offence, as if the same had been committed or originally charged to have been committed within the limits of the ordinary jurisdiction of such Supreme Court." (23 & 24 Vict. c. 88. s. 2.) Admiralty jurisdiction is entirely confined to the water. No crime committed on land comes within its cognizance. It applies in the following instances.

1. To all subjects of the Queen who commit any offence upon the high seas, or in any port, creek or river, of a tidal character, which may be considered as merely an extension of the sea. Where an

English sailor was charged with stealing tea out of a vessel which lay in the river at Wampu in China, twenty or thirty miles from sea, it was held that the Central Criminal Court in London, which exercises Admiralty functions, had jurisdiction over the offence, though no evidence was offered to show whether the tide flowed where the vessel lay; "The place being one where great ships go." (R. v. Allen, 1 Moo. C. C. 494, Reg. v. Bruce, 2 Leach, 1,098.) And so Wood, V. C., said (29 LJ. Ch. 879.) "There cannot be any doubt or question that directly low water mark is passed, a vessel is on the high seas." (See too the Eclipse, 31 LJ. Adm. 201.)

But Admiralty jurisdiction only exists where the ordinary Criminal Courts have no jurisdiction. Therefore they and not the Admiralty Court have jurisdiction when the offence is committed in rivers or arms or creeks of the sea within the bodies of counties, though within the flux and reflux of the sea; as for instance in the Bristol Channel. (Reg. v. Cunningham, 28 LJ. MC. 66. 1 Bell. CC. 66.)

2. To all persons, whether subjects or foreigners, who commit any offence, on board a British Ship, or a Ship lawfully in British possession, as for instance, a prize of war, when such vessel is on the high

seas, or in any tidal port, creek, or river. (Reg. v. Serva, 2 C & K. 53. 1 Phill. Int. L. 377.)

In a very recent case, (Reg. v. Anderson, 1 LR. CC. 161) an American citizen was indicted at the Central Criminal Court for a murder, committed by him on a British vessel in which he was serving, and which at the time was in the river Garonne, 90 miles from the sea, and of course in the heart of France. It was held that he was liable to the Admiralty jurisdiction at common law, independently of the provisions of the Merchant Shipping Act, s. 267. (ante p. 7.) The Court treated it as perfectly plain that the place where the ship lay was within Admiralty jurisdiction being "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." (p. 167.) As to the nationality of the prisoner that was immaterial, since as long as he was on a British ship, he was on British territory, under the protection of, and bound to render obedience to British laws. (See Marshall v. Murgatroyd, 6 LR. QB. 31.)

Where a foreign vessel comes within three miles of the shore of another State, or enters its ports or harbours, it becomes subject to the laws of that State, without ceasing to be bound by its own laws. (Reg. v. Anderson, 1 LR. CC. 161, Rolet v. Reg. 1 LR. PC. 198. Phill. Int. L. 373.) But Ships of war retain their exclusive national character under all circumstances, and no foreign jurisdiction can be exercised in respect of any acts done on board them. (1 Phill. Int. L. 366.)

But where a foreigner is illegally and against his own consent in custody on board of a British ship, or is in custody, however legally, merely by virtue of superior force, as in the case of a prisoner of war, no acts done by him merely for the purpose of effecting his escape are criminal offences. This point was very much argued in the case of Reg. v. Serva, where the prisoners were captured as slaves, and rose upon the crew of the British cruiser. The point was not decided however, as the Court acquitted them on the ground that the ship in which the killing took place was not shown by law to have been a British ship, and therefore that the Court had no jurisdiction. Baron Alderson's inclination seemed to be against the right of the prisoners to slay their captors. In one place he said :

"If these persons had been brought on board The Wasp,' and had there conspired to kill the English and had done so, would not that have been murder?" (2 C. &. K. 64); and in another place he observed—

"If a prisoner of war killed the captain who carried him on board his ship, would he not be triable here ?-and yet, he does not come on board voluntarily.' (Ibid. 69, and see arguments, pp. 76, 89, 93, 95.)

The question however is now settled, as I have stated the law above, by the decision in Reg. v. Sattler, D. & B. 539, 27 LJ. M. C. 50. There, a criminal who had been arrested in Hamburgh, and was in irons on board a English steamer, shot the officer, who afterwards died of his wound. Lord Campbell, CJ. during the arguments of the case said

"If a prisoner of war who had not given his parol, killed a sentinel in trying to escape, it would not be murder."

In giving the judgment of the full Court, (fourteen Judges, among whom the heads of the three Courts were present) he said