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 ADMIRALTY

JURISDICTION

zone of three miles round the shores of the United Kingdom was for such purpose territorial water, were the great questions raised in Reg. v. Keyn (The “Franconia,” L.It. 2 Ex. Div. 126), and decided in the negative by the majority of the judges, rightly, as the writer of this article respectfully thinks. Since then, however, the Legislature has brought these waters within the jurisdiction of the Admiralty by 41 and 42 Viet. c. 73. Section 2 runs as follows : “ An offence committed by a person, whether he is or is not a British subject, on the open sea within the territorial waters of British dominions, is an offence within the jurisdiction of the admiral, although it may have been committed on board or by means of a foreign ship, and the person who committed such offence may be arrested, tried, and punished accordingly.” By § 7 the “jurisdiction of the admiral ” is defined as “ including the jurisdiction of the Admiralty of England or Ireland, or either of such jurisdictions as used in any Act of Parliament; and for the purpose of arresting any person charged with an offence declared by this Act to be within the jurisdiction of the admiral, the territorial waters adjacent to the United Kingdom, or any other part of Her Majesty’s dominions, shall be deemed to be within the jurisdiction of any judge, magistrate, or officer.” And “ territorial waters of Her Majesty’s dominions” are defined as “in reference to the sea, meaning such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty’s dominions, as is deemed by international law to be within the territorial sovereignty of Her Majesty; and for the purpose of any offence declared by this Act to be within the jurisdiction of the admiral, any part of the ojien sea within one marine league of the coast, measured from lowwater mark, shall be deemed to be open sea within the territorial waters of Her Majesty’s dominions.” As to those portions of the sea and tidal waters which, by reason of their partially land-locked positions, are deemed to be in the body of a county, there is not Admiralty jurisdiction, but crimes are tried as if they were committed on land Avithin the same county. Pirates, whatever flag they pretended to fly, were, from 1360 onwards, wherever their crimes were committed, subject to the Admiralty jurisdiction. The criminal jurisdiction of the Admiralty was first exercised by the High Court of Admiralty; and then, by virtue of 28 Hen. YIII. c. 15, transferred to commissioners appointed under the great seal, among whom were to be the admiral or admirals, his or their deputies. Admiralty sessions were held for this purpose till 1834. Admiralty criminal jurisdiction is now, by virtue of the series of statutes 39 Geo. III. c. 37, 4 and 5 Will. IY. c. 36, 7 and 8 Yict. c. 2, and the criminal law consolidation Acts passed in 24 and 25 Yict. c. 1, exercised by the Central Criminal Court and by the ordinary courts of assize. Special provision for trial in the colonies of offences committed at sea has been made by 11 and 12 Will III. c. 7, 46 Geo. III. c. 54, and 12 and 13 Yict. c. 96. The Admiralty Court had jurisdiction in matters of prize from very early times; and although since the middle of the 17th century the instance, or ordinary Prize jurisdiction of the court, has been kept distinct from the prize jurisdiction, they were originally both administered and regarded as being within the ordinary jurisdiction of the Lord High Admiral. The early records of the Admiralty show that the origin of the prize jurisdiction is to be traced to the power given to the court of the admiral to try cases of piracy and “ spoil,” i.e., captures of foreign ships by English ships. The earliest recorded case of spoil tried before the admiral is in 1357, when the goods of a Portuguese subject, taken at sea by Englishmen from a French ship which had

87 previously spoiled a Portuguese, were awarded by the admiral as good prize to the English captors; and Edward III. in a letter to the king of Portugal answering a complaint on the subject gives the admiral’s decision as a reason for refusing their restoration. During the 16th century a very large part of the business of the Admiralty Court related to spoil and piracy, and the Privy Council often directed the judge of the court how to deal with the spoil cases, with regard to which foreigners who had suffered from attacks by English ships made petition for redress to the admiral or the council. The spoil suit at this time {causa spolii) was a civil proceeding resulting in a decree absolutoria, dismissing the defendant, or condemnatoria, ordering restoration to be made by him. In 1585 the patent of Howard, the Lord High Admiral, authorized him to issue letters of reprisal against Spain ; and an Order in Council regulating the conduct of those to whom such letters were issued, provided by an additional article (1589) that all prizes were to be brought in without breaking of bulk for adjudication by the Admiralty Court. The court was also resorted to at this time by captors, sailing under commissions granted by the allies of England, such as the king of France and the Dutch. About the middle of the 17th century separate sittings of the Court for Instance and Prize business began, perhaps because of the conflicting claims to droits of Charles II. and the duke of York as Lord High Admiral; and privateering under royal commission took the place of the former irregular “spoiling.” The account which Lord Mansfield gave of the records of the Admiralty Court, that there were no prize act books earlier than 1641, or prize sentences earlier than 1648, and that before 1690 the records were in confusion, must be qualified by the fact that there are in existence prize sentences (on paper, not parchment) as early as 1589. Although the courts of Common Law hardly ever seem to have interfered with or disputed the Admiralty prize jurisdiction, its exclusive nature was not finally admitted till 1782; but long previously royal ordinances (1512, 1602) and statutes (13 Car. II. c. 9, giving an alternative of commissioners, 22 and 23 Car. II. c. 11, 6 Anne, c. 13) had given the Admiralty Court the only express jurisdiction over prize. The same statute of Anne, and 13 Geo. II. c. 4, and 17 Geo. II. c. 24, give prize jurisdiction to any Court of Admiralty, and the Courts of Admiralty for the colonies and plantations in North America. It has been a disputed question whether the prize jurisdiction of the court was inherent, i.e., coming within the powers given by the general patent of the judge, in which no express mention of it is made, or whether it required a special commission. Upon this subject the judgment of Lord Mansfield in Lindo v. Rodney (1782, Dough 612), the judgment of Mr Justice Story in De Lovio v. Boit (1815, 2 Gallison, 398), and Mr Marsden’s Select Pleas of the Court of Admiralty (introduction), may be consulted. But the settled practice now and for a long time past has been for a special commission and warrant to be issued for this purpose. In connexion with this it is observable that in 1793 the Admiralty Court of Ireland claimed to exercise prize jurisdiction under its general patent; and it is said to have been the opinion of Sir W. Wynne that the Admiralty of Scotland had a similar right (Brown, Civil Law of Admiralty, vol. ii. 211, 212). Any jurisdiction of the Scottish Admiralty Court over prize of war w’as transferred to the English court by 6 Geo. IV. c. 120, § 57. As to the Irish court, by the Act of Union it was provided that there should remain in Ireland an Instance Court of Admiralty for the determination of causes civil and maritime only. In 1864 the constitution and procedure of prize courts,