steamer. In the collision, the deceased woman was drowned, and the prisoner, the captain of the Franconia, is convicted of manslaughter; but a question of law is reserved.

An objection was taken on the part of the prisoner that, inasmuch as he was a foreigner, in a foreign vessel, on a foreign voyage, sailing upon the high seas, he was not subject to the jurisdiction of any court in this country.

The Crown contends that inasmuch as, at the time of the collision, both vessels were within the distance of three miles from the English shore, the offense was committed within the realm of England, and is triable by the English court.

The case was argued before Cockburn, C. J., Lord Coleridge, C. J., Kelly, C. B., Sir R. Fhillimore, Bramwell, Pollock, and Amphlett, B. B., Lush, Brett, Grove, Denman, Archibald,* Field and Lindley, JJ. COCKBURN, C. J;— “The question is, whether the accused is amenable to our law, and whether there was jurisdiction to try him?

"The legality of the conviction is contested, on the ground that the accused is a foreigner; that the Franconia, the ship he commanded, was a foreign vessel, sailing from a foreign port, bound on a foreign voyage; that the alleged offense was committed on the high seas. Under these circumstances, it is contended that the accused, though he may be amenable to the law of his own country, is not capable of being tried and punished by the law of England.

"The facts on which this defense is based are not capable of being disputed; but a twofold answer is given on the part of the prosecution:-1st. That, although the occurrence on which the charge is founded took place on the high seas in this sense that the place in which it happened was not within the body of a county, it occurred within three miles of the English coast; that by the law of nations, the sea, for a space of three miles from the coast, is part of the territory of the country to which the coast belongs; that, consequently, the Franconia, at the time the offense was committed, was in English waters, and those on board were therefore subject to English law.

"Secondly. That, although the negligence of which the accused was guilty occurred on board a foreign vessel, the death occasioned by such negligence took place on board a British vessel; and that, as a British vessel is, in point of law to be considered British territory, the offense, having been consummated by the death of the deceased in a British ship, must be considered as having been committed on British territory. ***

"According to the general law, a foreigner who is not resid*Archibald, J., died after the agument and before the judgment was delivered.

ing permanently or temporarily in British territory, or on board a British ship, cannot be held responsible for an infraction of the law

of this country.

"Unless, therefore, the accused, Keyn, at the time the offense of which he has been convicted was committed, was on British territory or on board a British ship, he could not be properly brought to trial under British law, in the absence of express legislation. * * *

"In the reign of Charles II., Sir Leoline Jenkins, then the judge of the Court of Admiralty, in a charge to the grand jury at an Admiralty sessions at the Old Bailey, not only asserted the king's sovereignty within the four seas, and that it was his right and province to keep the public peace on these seas'-that is, as Sir Leoline expounds it, to preserve his subjects and allies in their possessions and properties upon these seas, and in all freedom and security to pass to and fro on them, upon their lawful occasions,' but extended this authority and jurisdiction of the King. To preserve the public peace and to maintain the freedom and security of navigation all the world over; so that not the utmost bound of the Atlantic Ocean, nor any corner of the Mediterranean, nor any part of the South or other seas, but that if the peace of God and the King be violated upon any of his subjects, or upon his allies or their subjects, and the offender be afterwards brought up or laid hold of in any of His Majesty's ports, such breach of the peace is to be inquired of and tried in virtue of a commission of oyer and terminer as this is, in such county, liberty, or place as His Majesty shall please to direct-so long an arm hath God by the laws given to his vicegerent the King.' ***

"Venice, in like manner, laid claim to the Adriatic, Genoa to the Ligurian Sea, Denmark to a portion of the North Sea.

"The Portuguese claimed to bar the ocean route to India and the Indian Seas to the rest of the world, while Spain made the like assertion with reference to the West.

"All these vain and extravagant pretensions have long since given way to the influence of reason and common sense.

"If, indeed, the sovereignty thus asserted had a real existence, and could now be maintained, it would of course, independently of any question as to the three-mile zone, be conclusive of the present case. But the claim to such sovereignty, at all times unfounded, has long since been abandoned. No one would now dream of asserting that the sovereign of these realms has any greater right over the surrounding seas than the sovereigns on the opposite shores; or that it is the especial duty and privilege of the Queen of Great Britain to keep the peace in these seas; or that the Court of Admiralty could try a

foreigner for an offense committed in a foreign vessel in all parts of the Channel.

"No writer of our day, except Mr. Chitty in his treatise on the prerogative, has asserted the ancient doctrine. Blackstone, in his chapter on the prerogative in the Commentaries, while he asserts that the narrow seas are part of the realm, puts it only on the ground that the jurisdiction of the Admiralty extends over these seas.

"He is silent as to any jurisdiction over foreigners within them. The concensus of jurists, which has been so much insisted on as authority, is perfectly unanimous as to the non-existence of any such jurisdiction. Indeed, it is because this claim of sovereignty is admitted to be untenable that it has been found necessary to resort to the theory of the three-mile zone.

"It is in vain, therefore, that the ancient assertion of sovereignty over the narrow seas is invoked to give countenance to the rule now sought to be established, of jurisdiction over the three-mile

zone.

"If this rule is to prevail, it must be on altogether different grounds. To invoke, as its foundation or in its support, an assertion of sovereignty which, for all practical purposes, is, and always has been, idle and unfounded, and the invalidity of which renders it necessary to have recourse to the new doctrine, involves an inconsistency, on which it would be superfluous to dwell. I must confess myself unable to comprehend how, when the ancient doctrine as to sovereignty over the narrow seas is adduced, its operation can be confined to the three-mile zone. If the argument is good for anything, it must apply to the whole of the surrounding seas. But the counsel for the Crown evidently shrank from applying it to this extent. Such a pretension would not be admitted or endured by foreign nations. That it is out of this extravagant assertion of sovereignty that the doctrine of the three-mile jurisdiction, asserted on the part of the Crown, and which, the older claim being necessarily abandoned, we are now called upon to consider, has sprung up, I readily admit. * * *

"With the celebrated work of Grotius, published in 1609, began the great contest of the jurists as to the freedom of the seas. "The controversy ended, as controversies often do, in a species of compromise. While maintaining the freedom of the seas, Grotius, in his work De Jure Belli et Pacis, had expressed an opinion that, while no right could be acquired to the exclusive possession of the ocean, an exclusive right or jurisdiction might be acquired in respect of particular portions of the sea adjoining the territory of individual states.

"Other writers adopted a similar principle, but with very varying views as to the extent to which the right might be exercised. Albericus Gentiles extended it to 100 miles; Baldus and Bodinus to sixty. "Loccenius (De Jure Maritimo, ch. iv., s. 6) puts it at two days' sail; another writer makes it extend as far as could be seen from the shore. Valin, in his Commentary on the French Ordinances of 1681 (ch. v.), would have it reach as far as bottom could be found with the lead line. ***

"Differing altogether from these writers as to the extent of maritime sovereignty, Bynkershoek, an advocate, like Grotius, for the mare liberum, and who entered the lists against Selden as to the dominion of England in the so-called English Sea, in his treatise De Dominio Maris, published in 1702, follows up the idea of Grotius as to a limited dominion of the sea from the shore. ***

"After combating the doctrine of a mare clausum as regards the sea at large, and enumerating these inconsistent opinions, which he seems little disposed to respect, Bynkershoek continues: Hinc videas priscos juris magistros, qui dominium in mare proximum ausi sunt agnoscere, in regundis ejus finibus admodum vagari incertos.' 'Quare omnino videtur rectius,' he adds, after disposing of the foregoing opinions, Eo potestatem terræ extendi, quousque tormenta exploduntur; eatenus quippe, cum imperare, tum possidere videmur. Loquor autem de his temporibus; quibus illis machinis utimur; alioquin generaliter decendum esset, potestatem terræ finiri, ubi finitur armorum vis; etenim haec, ut diximus, possessionem tuetur.'

"We have here, for the first time, so far as I am aware, a suggestion as to a territorial dominion over the sea, extending as far as cannon-shot would reach-a distance which succeeding writers fixed at a marine league, or three miles. Prior to this, no one had suggested such a limit.

"The jurisdiction, assumed in the Admiralty commissions, or exercised by the Court of King's Bench in the time of the Edwards, was founded on the King's alleged sovereignty over the whole of the narrow seas; it had no reference whatever to any notion of a territorial sea. To English lawyers the idea of this limited jurisdiction was utterly unknown.

"With Selden and Hale, they stood up stoutly for the King's undivided dominion over the four seas. No English author makes any distinction, as regards the dominion of the Crown, between the narrow seas as a whole and any portion of them as adjacent to the shore. The doctrine was equally unknown to the Scotch lawyers.

"Even to our times the doctrine of the three-mile zone has never been adopted by the writers on English law. To Blackstone who, in his Commentaries, treats of the sea with reference to the prerogative, as also to his modern editor, Mr. Stephen, it is unknown; equally so to Mr. Chitty, whose work on the prerogative is of the present century. It was not till the beginning of this century that any mention of such a doctrine occurs in the courts of this country. But to the continental jurists, the suggestion of Bynkershoek seemed a happy solution of the great controversy as to the freedom of the sea; and the formula, potestas finitur ubi finitur armorum vis, was a taking one; and succeeding publicists adopted and repeated the rule which their predecessor had laid down, without much troubling themselves to ascertain or inquire whether that rule had been recognized and adopted by the maritime nations who were to be affected by it. ***

"But to what, after all, do these ancient authorities amount? Of what avail are they towards establishing that the soil in the threemile zone is part of the territorial domain of the Crown? These assertions of sovereignty were manifestly based on the doctrine that the narrow seas are part of the realm of England. But that doctrine is now exploded. Who at this day would venture to affirm that the sovereignty thus asserted in those times now exists? What English lawyer is there who would not shrink from maintaining-what foreign jurist who would not deny-what foreign government which would not repel such a pretension? I listened carefully to see whether such an assertion would be made; but none was made. No one has gone the length of suggesting, much less of openly asserting, that the jurisdiction still exists. It seems to me, that when the sovereignty and jurisdiction from which the property in the soil of the sea was inferred is gone, the territorial property which was sug gested to be consequent upon it, must necessarily go with it. ***

"It thus appearing, as it seems to me that the littoral sea beyond low-water mark did not, as distinguished from the rest of the high seas, originally form part of the territory of the realm, the question again presents itself, when and how did it become so? Can a portion of that which was before high sea have been converted into British territory, without any action on the part of the British government or legislature-by the mere assertions of writers on public law-or even by the assent of other nations?

"And when in support of this position, or of the theory of the three-mile zone in general, the statements of the writers on international law are relied on, the question may well be asked, upon what authority are these statements founded?