mm 



.?77 



Mr. D.hia Ims put to me a (|uestioii wliich I am quite willing to answer. It is this ; — 

 Whether or no I would niyseit; if writing on the subject, use such language as that, and 

 say that a nation has exclusive right of property within its territorial waters. 



Mr. Daini. — Absolute right. 



Mr. Thomson. — Yes, absolute right of property; with the single exception — which is, 

 of couise understood by all writers on the subject — that the ships of other nations have a 

 right to pass thiough and by those waters for innocent purposes, and in cases of storm to 

 enter harbours, or anchor in them for tlie purpose of shelter. I say that nations have 

 sucii absolute right ; and tliat there is no law of nations — no International Law, or any 

 other law anywliere, by which fishermen or any other class have the privilege of coming 

 within those waters and fishing without the i)erniission of the nation to whom those 

 territorial waters belong, and whose coasts they wasii. 



Let tn(; now turn the attention of your Excellency and Honours to the case of the 

 Queen v. Keyu, upon the authority of which Mr. Dana very much relies. In that case 

 the |)risoner was indicted for the crime of manslaughter, alleged to have been committed 

 by him on board a foreign ship, of which he was the Captain, in the English Channel, and 

 within three miles of the British shore. He was tried in the Central Criminal Court of 

 London, and convicted. A novel point of law was raised by the prisoner's Counsel and 

 reserved for the .ludge. In order to understand the bearing of that point, I think it right 

 to explain to the Commission that, in order to clothe English Courts of Assize with the 

 common-law jurisdiction to try ottenders, the ofience must have been committed within the 

 body of a county. Unless so committed, no grand jury could indict, and no petit jury try 

 or convict a |)risoner. Those large bodies of sea water within English headlands, called 

 " King's CTiaiMi)('is," were considered to Ho within the bodies of counties, as the case of 

 the Qui'cn r. Cinmingham, cited in the "British Brief," shows. No formal decision had 

 ever, so far rs ! ;ini aware, determined that tiic territorial waters lying around the external 

 coasts of I'.nglarid were within bodies of cmintii's. Over oti'ences committed upon tlie seas, 

 and not wiiiiin bodies of counties, the jurisdiction oftiie Lord High Admiral attached, and 

 he or \\\< (Irpuiiis; sitting in Adniiraily Court, tried and punished the offenders. 



I'y a st;i(u(^ passed in the reign of William IV'., tiie criminal jurisdiction of the 

 Admiral was trinisferrcd to .fudges of Assi/.o, and to the Central Criminal Court. The 

 substancr oi' tiu' oi)ii'ction raised by Captain Keyn's Counsel was this: The realm of 

 England uver which the Common-law jurisdiction extends, does not reach beyond the line 

 f)f low wiitcr, iiiui therefore the Court has no conimon-law right to try the prisoner. In 

 regard to the Atiniiralty jurisdiction conferred upon it by the statute of William, that 

 caimot atl'ect tlie question, because the Admiral never had jurisdiction over foreign vesseb, 

 or over crimes committed on board of them. Tlie Court of Appeal quashed the conviction, 

 holding, by seven .Judges against six, that the realm of England did not, at common-law, 

 extend, on her external coasts, beyond the line of low water. B^tt the Judges who quashed 

 the runriflinn all held that the Parliament of Grcni Britain had the undoubted right to 

 confer k/jo/i the Courts of the Kingdom full authoritij to ileal with all questions arising within 

 her tenitoriiil waters around the e.vternal roasts. Owing to the absence of such legislation 

 Captain Keyn escaped punishment. 



The Court of Appeal in this case was composed of thirteen Judges, and it is well to 

 bear in mind that the authority of the judgment is greatly weakened by the fact that six 

 were one way and seven the other. 



Mr. Dana. — One of them died. 



Mr. Thomson. — Judge Archibald died, I think; and after his death, the decision of 

 the Court, letting the man go free and holding that the Central Criminal Court had no 

 jurisdiction in the matter, was given by the casting vote of the Lord Chief Justice of 

 England, Sir Alexander Cockburn. 



1 was surprised at Mr. Dana, who, whilst commenting on this case — I presume that 

 he had not read it very recently — stated that the Common-law lawyers were greatly 

 puzzled, and tb -^ 'he Civil-law lawyers alone — 



Mr. Daii(i. — i said other lawyers — other than those who were strictly trained in the 

 Common-law. 



Mr. Thomson. — 1 think that I can give your exact language. 



Mr. Dana. — ^You will find it on page 71 of our argument. 



Mr. Thomson. — Mr. Dana said : — 



" 'f lu' Fmiicv/iiK ('list' wliirli rtllr;ict('(.l so inueb atiouliuii ii wliovt time ago did not raise this que.stion, 

 but il in III' so!i!i' liujioituiu'i' for us lo ri'iiii'iiilier. 'I'liiMv thore was no ([Uestioii of licadlaiids. It 

 was a .Uraiglil iiiir coast, ami the vessel was within three miles of the shove. ]5iil wjiat was the shi|) 

 (loiiit; ' She was lieaiini^' her way down the English Channel ai^ainst the sea and wind, and slio made 

 her streti'iies toward the Kn^lish shore, eoniing as near us safety permitted, and then to the French 



