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he observes, “that in any just sense, Mango Bay can be considered as the high seas; it is entirely land-locked and enclosed.”1 Chancellor Kent, referring to this decision, adds that “the cases are so conflicting it is impossible to arrive at any definite conclusions on the subject." 2
Judge Betts thought that clearly there was no jurisdiction over an offence committed at a point in the East River between the main land and Long Island, where the breadth of water is not beyond the reach of ordinary eyesight, and does not exceed two miles. This was an indictment brought under section one of the act of March 26, 1804, for destroying a vessel lying at that point in the river (2 Stat. at Large, 290). "It appears to us very manifest,” the opinion says, “that Congress, prior and subsequently to the enactment under consideration, has, in its criminal legislation, sedulously evinced the intention to use the term high seas in its popular and natural sense, and in contradistinction to mere tidewaters flowing in ports, havens, and basins. Thus in the eighth section of the act of April 30, 1790, and in the fourth, fifth, sixth, seventh, eighth and eleventh sections of the act of March 3, 1825 (4 Stat. at Large, 115), high seas are discriminated from rivers, havens, basins, and bays, which are not within any State in the Union, all the enactments importing equivocally the meaning of Congress, that the term high seas alone embraces no waters that are land-locked in their position, and are subject to territorial jurisdiction.” 3
In 1860 a question of jurisdiction under the act of 1790 came before the same court in a case of mutiny which occurred on board an American brig lying at Palermo, Sicily. She lay out in what was called the harbor, fastened to the shore by cables; and was not at any pier or wharf, or within any enclosed dock. Her communication with the land was effected by means of boats. The court, upon a review of the facts, had no doubt of its jurisdiction. The case does not show whether the harbor is land-locked or enclosed between headlands, and to be deemed for that reason not a part of the high seas.4
1 United States v. Robinson, 4 Mas. 307. 2 1 Kent Com. (12th ed.) *367, note. 8 United States v. Wilson, 3 Blatchf. 439. 4 United States v. Seugrist, 4 Blatchf. 420.
It would thus seem to be an open question whether damage done by a cruiser upon waters enclosed by headlands, near enough to each other to be treated as fauces terræ, ought to be treated as done upon
the high seas. Such waters are quite a different thing from the three miles' belt embraced within what is familiarly known as the marine league ; and the rights and authority of a state over the waters of the sea that wash her shores are by no means so well settled as the power she may exercise over waters upon her coast lying between headlands.
Stated very briefly, the modern doctrine, as generally accepted, is that a state is entitled to a certain extension of territory, in a certain sense of that word, beyond low-water mark. As in the case of
many other rights, this extension of territorial jurisdiction had its origin in might. At first, its limits were contested, and after having varied from one hundred miles down to three miles, the latter distance has at last, by the consent of nations, been fixed, it being the supposed range of a cannon-shot. For this purpose a cannon-shot is estimated at a marine league, which is a little short of three and a half English miles. This limit has been recognized and adopted in treaties; though, with a view to protecting the revenue against smuggling, a longer distance has sometimes been claimed. Now that improvements in ordnance have increased the range of a cannon-shot, it would seem as if an extension beyond the limits of the marine league might be looked for. As yet no change has been effected. “When Azuni wrote in 1796 his Sistema dei Principii del Diritto Marittimo'l he complained,” says Sir Robert Phillimore, “ that the limit was still undecided, and hoped the three miles distance would be agreed upon, as, without doubt, it was the greatest distance cannon-shot could ever be made to reach.” 2
This outline of general principles is drawn from the very valuable opinions delivered in the leading case of The Queen v. Keyn,3 which occupied the attention of the judges in the Crown Cases Reserved Court, and was argued by eminent counsel, no longer ago than 1876. An inquiry into the nature and extent of the jurisdiction of England over the open sea within three miles of her coast, taxed the learning and the talents of the full bench, including that
i Vol. I. p. 67.
JURISDICTION WITHIN THREE MILES OF THE COAST.
eminent admiralty lawyer, Sir Robert Phillimore. The case was of novel impression, and the judges delivered written judgments. Though the result is a conflict of views, the discussion takes so ample a range and brings out such an array of authorities difficult of access elsewhere, that it will fully repay a careful study.
The question certified to the bench was one of jurisdiction. It arose in a criminal case as follows. The prisoner, a German, was indicted at the Central Criminal Court for manslaughter on the high seas. He was the officer in command of the “Franconia,” a German steamer carrying the mails from Hamburg to St. Thomas, in the West Indies. About a mile and nine tenths from Dover pierhead, and within two and a half miles from Dover beach, the “ Franconia” ran into the British steamer “Strathclyde," from London for Bombay, in consequence of which the latter steamer was sunk, and the deceased, a passenger, was drowned. The jury found the prisoner guilty. His counsel objected that the court had no jurisdiction, and this question was taken up for the opinion of the Court for Crown Cases Reserved. May 6–13 it was argued before Kelly C. B., Sir R. Phillimore, Lush, Field, and Lindley JJ., and Pollock B., — by Benjamin Q. C. (Cohen Q. C., Phillimore and Stubbs with him) for the prisoner; and by Sir H. Giffard S. G. (Poland, C. Bowen, and Straight with him) for the prosecution. The court being divided, the case was directed to be reargued. June 16–23, the rehearing was had before Cockburn C. J., Lord Coleridge C. J., Kelly C. B., Sir R. Phillimore, Bramwell, Pollock and Amphlett BB., Lush, Brett, Grove, Denman, Archibald, Field, and Lindley JJ.
The court were again divided, but this time a majority concluded that there was no jurisdiction. The opinions were pronounced November 11th and 13th. That of Chief Justice Cockburn extends through eighty printed pages, its length, as compared with the remarks of any one of his brethren, recalling to mind the proportion his opinion at Geneva bears to those of the other arbitrators.
The judges stood seven to six.? Held by Cockburn C. J., Kelly C. B., Bramwell J. A., Lush and Field JJ., Sir. R. Phillimore, and Pollock B. that prior to 28 Hen. VIII. c. 15, the admiralty had no
1 Mr. Justice Archibald had seen the judgment of the Lord Chief Justice and concurred therein. p. 238. He died before the judgments were delivered. Besides this case, see Mr. Dana's note to Wheaton's International Law (Dana's ed.), p. 258.
JURISDICTION WITHIN THREE MILES OF THE COAST.
jurisdiction to try offences by foreigners on board foreign ships, whether within or without the limits of three miles from shore ; that that statute and subsequent legislation only transferred to the common-law courts and the Central Criminal Court the jurisdiction formerly vested in the admiralty, and that without special statute the Central Criminal Court had no power to try this offence.
Lord Coleridge C. J., Brett and Amphlett JJA., Grove, Denman, and Lindley JJ., were of opinion that the sea within three miles of the coast of England is part of the territory of England, and that the English criminal law extends over it; that the admiralty formerly had, and the Central Criminal Court now has, the power to try offences committed there, though on board foreign ships. Kelly C. B., and Sir R. Phillimore were further of opinion that by the principles of international law the power of a nation over the sea within three miles of its coasts is only for certain limited purposes; and that Parliament cannot consistently with those principles apply English criminal law within those limits.
In concluding an examination of the meaning of this term," the high seas,” it may not be unprofitable to read what Hopkinson, J., says in United States v. Kessler, 1 Baldw. 15, also an indictment under the act of 1790. It had been contended that inasmuch as the offence had been committed within a marine league of the shore of the United States, the court for that reason had jurisdiction :
“I am not of this opinion. The jurisdiction of this court is derived wholly from the act of Congress on this subject. The description of the place to which or over which it extends is the high seas. If, then, the space within the marine league is not comprehended within this description, this court has no jurisdiction over it ; if it be comprehended, as it certainly is, then it is so because it is a part of the high seas. Nothing is added to the jurisdiction of the courts of the United States by reason of the offence having been committed within this distance of their coast; nothing is taken from it by reason of its having been committed within the jurisdictional limits of a foreign government, within a marine league of the shore, if done on the high seas, which are held to be any waters on the sea coast without the boundaries of low-water mark. It follows from these principles that if this court has no power under the act of Congress to try and punish this offence committed on board of a foreign vessel on the ocean, it acquires no such power because she was within a marine league of our coast when the offence was committed.”
CRUISERS. — It is important to ascertain what is meant by this term. Webster says that a “cruiser” is “a person or a ship that cruises ;” and he defines the verb “to cruise as “to sail back and forth, or to rove on the ocean, in search of an enemy's ships for capture, or for protecting commerce." Worcester's definitions are: 1. To rove over the sea without any certain course, with a view to capture an enemy's ships, or for protecting commerce, or for plunder as a pirate ; 2. To make a voyage at sea. Falconer, in his valuable Universal Dictionary of the Marine, defines a cruise as “a voyage or expedition in quest of vessels or fleets of the enemy which may be expected to sail in any particnlar track at a certain season of the year. The region in which these cruises are performed is usually termed the rendezvous, or cruising latitude. When the ships employed for this purpose, which are accordingly called cruisers, have arrived at the destined station, they traverse the sea backwards and forwards, under an easy sail and within a limited space, conjectured to be in the track of their expected adversaries." Cruisers are commonly the best sailingships, appointed by the Admiralty to cruise in some certain latitudes in order to meet with and apprehend or destroy the enemy. . They are generally of the smallest rates, and must by no means leave their stations during the time limited, except forced thereto by some damage received, or by stress of weather.1
The only inaterial difference between a privateer and a ship sailing under a letter of marque is the use to be made of their commissions. The one intends to cruise in search of prizes, and the other intends to attack and take only what may fall in her way.”
The meaning of the word “cruise,” as used in 1814 in the shipping articles of an American privateer, came before Mr. Justice Story in the First Circuit. The agreement was that the privateer should cruise where the owners should direct; that three-fifths of the prizes taken during the cruise should belong to the owners, and two-fifths to the crew; that the officers and crew should repair on board immediately when ordered, and remain for three months from the time of sailing, unless the cruise was sooner completed in the opinion of the owners. She sailed on her cruise, and was compelled - in consequence of injuries received in an engagement,
1 Weskett, Dig. of Insurance, 156. See St. 6 Anne, c. 13. 2 Per Jackson, J.; Wiggin v. Amory,.13 Mass. 127.