is done on the other; and the reason assigned by Lord Coke in the Admiralty case(k) 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 a murder was committed in Roundstone Bay, and it appeared that the place in question was within the county of Galway, and that the headlands bounding the bay were so situated that a man could see from the one to the other, and that the place in question would fall within a straight line drawn from the one headland to the other, and that in that part of the bay there were fifteen fathoms water, and that a ship of 120 tons could sail there; but there was no evidence of its having been frequented by shipping, or of any Admiralty process having ever been executed within it; it was held by the judges in Ireland, that the murderer was rightly tried under an Admiralty commission.(m) But where, upon an indictment for maliciously wounding in the county of Glamorgan, it appeared that the prisoners were Americans, and they and the person wounded were part of the crew of the American ship Gleaner, which sailed from the docks of Cardiff to an anchorage in Penarth Roads, and the offence was committed shortly before she arrived at that anchorage, when the ship was threequarters of a mile from land, in a place never left dry by the tide; but she was within a quarter of a mile of the land which is left dry by the tide. The shore of the county of Glamorgan extends many miles up and down the Bristol Channel from the place where the offence was committed. The spot in question was in the Bristol Channel, between the Glamorganshire and Somersetshire coasts, and was about ten miles from the opposite coast of Somersetshire. Two islands, called the Flat and Steep Holmes, are outside the anchorage-ground, and farther from the shore than it is, but not lower down the Channel, being abreast of the anchorage-ground. When the offence was committed the ship was inside, and about two miles from the Flat Holmes, and four or five miles from the Steep Holmes, and was within the Lavernock Point in Penarth Roads, but outside of Penarth Head. Penarth *155] Head and Lavernock Point form a bay. It is three miles from Lavernock Point. At Penarth Head persons can see from one to the other, and could see what a vessel was doing from one to the other, but could not see the people from one to the other. From where the ship was persons could see people at Lavernock, and see what they were doing if they took particular notice of them, and they could see the coast of Somersetshire in a clear day. The mouth of the Severn is at King's Road, higher up the Channel. The Holmes are part of the parish of St. Mary's, Cardiff, and taxes had been collected from the occupiers of Flat Holmes for St. Mary's parish. By an order of the Commissioners of Her Majesty's Treasury, the port of Cardiff had been fixed so as to include the spot in question. It was objected that the prisoners could not be tried in the county of Glamorgan, as there was no proof that the offence was committed in that county; but it was held that the offence was committed in that county. Cockburn, C. J.: "The question is, whether the part of the sea on which the vessel was at the time when the offence was committed forms part of the body of the county of Glamorgan; and we are of opinion that it does. The sea in question is part of the Bristol Channel, both shores of which form part of England and Wales, of the county of Somerset on one side, and the county of Glamorgan on the other. We are of opinion that, looking at the local situation of this sea, it must be taken to belong to the counties respectively by the shores of which it is bounded; and the fact of the Holmes, between which and the shore of the county of Glamorgan the place in question is situated, having always been treated as part of the parish of Cardiff and as part of the county of Glamorgan, is a strong illustration of the principle on which we proceed, namely, that the whole of this inland sea between the counties of Somerset and Glamorgan is to be considered as within the counties, by the shores of which its several parts are respectively bounded. We are, therefore, (k) 13 Co. 52. (1) 2 East P. C. c. 17, s. 10, p. 803, 804. 155 of opinion that the place in question is within the body of the county of Glamorgan."(n) The question, whether the fact was committed on the sea or within the body of the county, is of main importance; for if it turn out that the goods were taken anywhere 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.(0) And the 39 Geo. 3, c. 37,(p) relates only to offences committed on the high seas, and out of the body of any county.(q) *Where a prisoner was indicted for stealing three chests of tea out of the [*156 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 board the vessel, which had crossed the ocean, that there was sufficient evidence that the larceny was committed on the high seas.(r) It was decided that where A., standing on the shore of a harbor, 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 proceeded. (s) 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.(t) 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.(u) The 28 Hen. 8, c. 15, s. 2, introduces "manslaughters" and uses the words "havens," &c., without 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. The statute is almost in terms with 27 Hen. 8, c. 4, except that it adds "treasons" to the offences. It seems that the 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.(v) 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. (w) And it was decided that a party was not triable under both or either of these statutes for maliciously shooting, within 43 (n) Reg. v. Cunningham, Bell C. C. 72. As the offence in this case was committed on a foreign vessel, it could not have been tried as an Admiralty offence. But where an offence is committed in a British ship, and there is a doubt whether the place be within the Admiralty jurisdiction, it would be well to have one count laying the offence "upon the high seas" and another as if the offence were committed within a county. (0) 2 East P. C. c. 17, s. 12, a. 805; 3 Inst. 113; Rex v. Prowes, 1 M. C. C. R. 349; Reg. r. Madge, 9 C. & P. 29 (38 E. C. L. R.). (p) Ante, p. 147, note (p). (9) But as this act and the 24 & 25 Vict. c. 96, s. 115, made a larceny on the sea of the same nature as if it had been committed on land and triable by jury, it should seem that the ground of the former decisions fails, and therefore they ought to be considered as no longer binding. (7) Rex v. Allen, R. & M. C. C. R. 494; s. c. 7 C. & P. 664. (8) 1 Hawk. P. C. c. 37, s. 17; Coombe's case, 1 Leach 388; 1 East P. C. c. 5, s. 131, p. 367. (t) 2 Hale 17, 20; 1 East P. C. c. 5, s. 131, pp. 365, 366. (u) 24 & 25 Vict. c. 100, s. 10, post, Murder. (v) Ante, p. 147, note (p); Rex. v. Snape, 2 East P. C. 807. () Rex v. Bailey, Hil. T. 1800, MS. Bayley, J., and R. & R. 1. Geo. c. 58 (now repealed); but this decision proceeded upon the terms of the 43 Geo. 3, which confined its operation to England and Ireland.(x) The 26 & 27 Vict. c. 125 repeals the 27 Hen. 8, c. 4. *157] *Sec. III-Of the Court by which the Offence may be tried. THE offence of piracy was formerly cognizable only by the Admiralty Courts, which proceeded without 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 28 Hen. 8, c. 15, established a new jurisdiction. That statute enacted, that this offence should be tried by commissioners 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 proceeding should be according to the law of the land. Amongst the commissioners there were always some of the common law judges;(y) and by the Admiralty Court, thus constituted, the offence of piracy, and other marine offences, may now be tried. But the 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.(z) The 32 Geo. 2, c. 25, s. 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 upon 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. And the 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.(a) The 11 & 12 Will. 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 of fences 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 com*158] missions, 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 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 direction of the 28 Hen. 8.(x) (x) Rex v. Amarro, R. & R. 286. The act is now repealed. (y) Generally two. 4 Blac. Com. 269. (z) By Mansfield, C. J., Rex v. Depardo, 1 Taunt. 29. (a) See note (d), p. 159. (x) See the 12 & 13 Vict. c. 96, post, p. 164. By 7 & 8 Geo. 4, c. 28, s. 12, “ 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." Each of the Consolidation Acts of 1861 makes the offences committed on the sea against it of the same nature as if they had been committed on land in England or Ireland, and triable where the offender is apprehended or in custody.(a) The Central Criminal Court Act, 4 & 5 Will. 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." An accessory before the fact to a felony committed on the high seas within the jurisdiction of the Admiralty, might be indicted and tried at the Central Criminal Court by virtue of the preceding section and the 7 Geo. 4, c. 64, s. 9 (now repealed), although the principal had not been "committed to, or detained in," the gaol of Newgate for his offence.(b) The 7 & 8 Vict. c. 2, s. 1, reciting the 28 Hen. 8, c. 15, and that it is expedient that provision be made for the trial of persons charged with offences committed within the jurisdiction of the Admiralty, enacts" that Her Majesty's justices of assize or others Her Majesty's commissioners by whom any Court shall be holden *under any of Her Majesty's commissions of oyer and terminer or general [*159 gaol delivery shall have severally and jointly all the powers which by any Act are given to the commissioners named in any commission of oyer and terminer for the trying of offences committed within the jurisdiction of the Admiralty of England, and that it shall be lawful for the first-mentioned justices and commissioners, or any one or more of them, to inquire of, hear, and determine all offences 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 in every county and franchise within the limits of their several commissions of any person committed to or imprisoned therein for any offence alleged to have been committed upon the high seas and other places within the jurisdiction of the Admiralty of England; and all indictments found, and trials and other proceedings had, by and before the said justices and commissioners shall be valid." Sec. 2, "In all indictments preferred before the said justices and commissioners under this Act the venue laid in the margin shall be the same as if the offence had been committed in the county where the trial is had; and all material facts which in other indictments would be averred to have taken place in the county where the trial is had shall in indictments prepared (c) and tried under this Act be averred to have taken place on the high seas." "(d) Where a larceny was alleged under this Act to have been committed " (a) Ante, p. 2. (b) Reg. v. Wallace, 2 M. C. C. R. 200; C. & M. 200 (41 E. Č. L. R.). (c) Quære, preferred. on the (d) Sec. 3 provided for the commitment of persons charged with offences committed within the jurisdiction of the Admiralty under the 7 Geo. 4, c. 38, but so much of that act as related to the examination and commitment of such persons, was repealed by the 11 & 12 Vict. c. 42, s. 34, and 12 & 13 Vict. c. 69, s. 31, which was repealed by the 14 & 15 Viet. c. 93, s. 43, and the examination and commitment of such persons are now regulated by the 11 & 12 Vict. c. 42, and 14 & 15 Vict. c. 93. It seems, therefore, that sec. 3 of the 7 & 8 Vict. c. 2, is virtually repealed. Sec. 4 of the 7 & 8 Vict. c. 2, provides that the act shall not affect the jurisdiction of the Central Criminal Court, or commissions under the 28 Hen. 8, c. 15. high seas," it was held that the indictment was sufficient, without adding "within the jurisdiction of the Admiralty." (e) An indictment tried at the assizes under this statute for murder committed on the high seas, need not conclude contra formam statuti.(ƒ) By the Merchant Shipping Act, 17 & 18 Vict. c. 104, s. 267, "All offences against property or person committed in or at any place either ashore or afloat out of Her Majesty's dominions by any master, seaman, or apprentice who at the time when the offence is committed is or within three months previously has been employed in any British ship shall be deemed to be offences of the same nature respectively, and be liable to the same punishments respectively, and be inquired of, heard, tried, determined, and adjudged in the same manner and by the same Courts and in the same places as if such offences had been committed within the jurisdiction of the Admiralty of England." To a count for murder since this statute, which alleged the murder to have been committed "upon the high seas," it was objected that it ought to have averred that the prisoners were on board a British ship, or that they were British sub*160] jects; and to counts alleging that the prisoner was master of a British ship afloat in the river Elbe, and that he there committed the murder, it was objected that these counts did not allege the murder to have been committed " on the high seas." But Wightman, J., thought the provision in the 7 & 8 Vict. c. 2, as to the high seas, only directory, and overruled the objections, and, as they were on the record, refused to reserve them.(g) By the 18 & 19 Vict. c. 91, s. 21, "if any person, being a British subject, charged with having committed any crime or offence on board any British ship on the high seas or in any foreign port or harbor, or if any person, not being a British subject, charged with having committed any crime or offence on board any British ship on the high seas, is found within the jurisdiction of any court of justice in Her Majesty's 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." A ship, public or private, on the high seas, is considered a part of the territory to which the ship belongs, and a foreigner committing an offence in it is amenable to the laws of such territory. Upon an indictment for wounding G. Smith, with intent to do him some grievous bodily harm, it was proved that the prisoner, a foreigner, being a sailor and one of the crew of the British ship Ontario, maliciously and unlawfully wounded the prosecutor, also a foreigner and a sailor, and one of the crew of the same ship, whilst on the high seas, and in the said ship, on a voyage from London to the coast of East Africa. The prisoner was tried and convicted at the Assizes at Exeter; and a case was reserved upon the question whether the prisoner, a foreigner, was properly convicted of the offence committed on the high seas.(h) In another case, () upon an indictment for murder, tried at the Central Criminal Court, it appeared that the prisoner was a foreigner, and had committed a larceny in England, and then went with part of the stolen property to Hamburgh. The owner of the property gave information to the London police, and the deceased, who was a detective officer of that force, and an English subject went, and, with the assistance of the police of Hamburgh, arrested the prisoner there, and brought him against his will on board an English steamer trading between Hamburgh and London, in order that he might be tried for the larceny. Hamburgh is on the river Elbe, sixty miles from the sea; but the tide flows higher up than the place where the steamer was when the prisoner was taken on board. The steamer left Hamburgh on the 21st of November, the prisoner being in irons, and on the 22d, whilst on the high seas, he shot the officer, who died of the wound. If the killing had been by an Englishman, in an English county, it would have been murder. The deceased had no warrant; and a case was reserved upon the question whether (e) Reg. v. Jones, 1 Den. C. C. 101. (f) Reg. v. Serva, 2 C. & K. 53 (61 E. C. L. R.). (9) Reg. v. Menham, 1 F. & F. 369. (i) Reg. v. Sattler, Ibid. (h) Reg. v. Lopez, D. & B., 525. |