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the admiralty jurisdiction of England and that all seamen, whatever their nationality, serving on board British ships, are amenable to the provisions of British law. This case was decided Nov. 16, 1868.

The prisoner, as was said by Chief Justice BOVILL, was also subject to the law of France, but as M. Ortolan says, in his work entitled "Diplomatie de la Mer," book 2, ch. 13, pp. 269-271, ed. 4th, with regard to merchant vessels of foreign countries, the French nation do not assert their police laws against the crews of those vessels, unless the aid of French authority be invoked by those on board, or unless the offence committed leads to some disturbance in their ports.

Much stress was laid in the course of the argument in behalf of the prisoner, that he was an American citizen, but the case of Genesee Chief v. Fitzhugh, 12 How. 443, was cited on behalf of the Crown to show that the American courts hold that the large lakes and rivers of that country are within admiralty jurisdiction. And the case of United States v. Hamilton, 1 Mason 152, was also referred to to the effect that although a ship in a foreign port loses its character as a ship, it does not lose that character while in a river. "When vessels go into a foreign port," remarked Chief Justice BOVILL, "they must respect the laws of that nation to which the port belongs; but they must also respect the laws of the nation to which the vessel belongs."

In Anderson's Case, as the chief justice observed, "It was said that the prisoner was an American citizen; but he had embarked by his own consent on board a British ship, and was at the time a portion of the crew." Further American cases were cited by Mr. Justice BLACKBURN, as follows: "In the American case of United States v. Wiltberger, 5 Wheat. 76, "the court seems to have held as a fact that the ship was out of the admiralty jurisdiction; but in Thomas v. Lane, 2 Sumner 1, and United States

v. Coombs, 12 Peters 72, they give the grounds of their decision, not in conform ity with the United States v. Wiltberger, but very much in conformity with the English decisions, and therefore I consider that the American courts would agree with us that the admiralty jurisdiction would extend to this place; and so, just as an American seaman on board an American ship at the place in question would have been triable in America, so a foreign subject serving on board a British ship can be tried here." It seems that Kent agrees that the admiralty jurisdiction extends, not only to the high seas, but over all rivers where, and as far as, the tide ebbs and flows, and where great ships go-and that a ship, under such circumstances, is within the admiralty jurisdiction of the country to which she belongs: 1 Kent's Com., 10th ed., p. 401, referred to by the Court in Reg. v. Anderson.

The only difference between the cases of Anderson and Allen consisted in the fact that in the latter the crime was committed in the river Wampa, in China, twenty or thirty miles from the sea, and no evidence was given of the ebb or flow of the tide where the vessel lay, but the judges who sat as a court of revision in Hilary Term 1837, were unanimously of opinion that the conviction was right, the place being one where great ships go.

Mr. Justice BLACKBURN, in Anderson's Case, cited the United States v. Holmes, 5 Wheat. 412, where it was held that under the Act of 30 April 1790, it made no difference whether the offender were a citizen of the United States or not, if the crime were committed on board a foreign vessel, for pro hac vice the offender must be considered as belonging to the nation under whose flag he sailed. No hint of limiting such jurisdiction to the crew alone was intimated. And in pronouncing his judgment the same learned judge said: "My present impression is that where a ship is sailing under a particular flag, the flag affords protection to all who sail under it, and

the nation to whom the flag belongs has a perfect right to legislate for all those on board, because she affords them that protection."

Although no question of nationality respecting the citizenship of the prisoners in the principal case arose, as they were admitted to be British subjects, that question was amply ventilated in the Anderson Case, and can scarcely be said to have become more complicated since. The struggle for jurisdiction in former times was not one of nationality but rather was one between the common-law courts and the admiralty courts. In the United States that conflict has taken the phase of the federal courts versus the state courts. In England it was a matter of venue and of the right to be tried by a jury at common law, which right the admiralty courts virtually denied, but this controversy the statute 4 & 5 Wm. 4, c. 36, s. 22, terminated. Earlier statutes had been passed to cure such defects in certain cases, viz., 13 Rich. II., st. 1, c. 5, 15 Rich. II., c. 3., and 25 Henry VIII. c. 15; 1 Kent's Com., 11 ed., p. 390. The American courts hold that the large lakes and rivers of that country are also within admiralty jurisdiction: Genesee Chief v. Fitzhugh, supra. But even if the country or states of the lakes or rivers have concurrent jurisdiction that would not affect the international question, since no offence can be tried in the English admiralty courts which does not fall within the jurisdiction specially conferred by statute of Henry VIII. supra. 2 Bro. Civ. & Crim. Law, Appendix, No. 3; Opinion of Law Officers of the Crown, Ibid. "There is therefore a strong precedent," says KENT, vol. 1, 389, "for the doctrine of the Supreme Court of the United States, which refuses to the federal courts any criminal jurisdiction in admiralty cases, not derived from statute." The Judiciary Act of 1789 accordingly provides that the trial of all issues in fact in the district courts, in

VOL. XXXI.-39

all causes except civil cases of admiralty and maritime jurisdiction, shall be by jury. Not but what the court of admiralty in criminal matters originally proceeded by indictment and trial by jury, according to the course of the common law, before and independent of the Act of Henry VIII. (Kent's Com. 11 ed. vol. 1, p. 389), but as it conformed its practice to the rules of the civil rather than the common law and dispensed with a jury of the vicinage, although it might have retained the show or shadow of one, its future proceedings were regulated by statute as before mentioned. (See a note in Kerr's Blackstone, vol. 4, p. 278), "that the course of its proceedings should be according to the law of the land." Id.

To return to the question of jurisdiction. It has always been rather a matter of contention between the jurisdiction of the high seas and that of the inland courts, which though now clearly defined in England by the several statutes 28 Henry VIII., c. 15; 4 & 5 Wm. IV., c. 36; 7 & 8 Vict. c. 2; and 18 & 19 Vict. c. 91, s. 21, may yet require some further definition as between the federal and state courts of the United States. The international question may be said to have been solved, and that is all that the case before us professes to deal with, if indeed its decision does not rather relate to the jurisdiction over a theft committed in a foreign river, where the tide ebbs and flows and possibly by a foreigner. It should be remembered that the United States courts have no unwritten criminal code. There is no national common law. They have no jurisdiction but what is conferred by statute by Congress : United States v. Coolidge, 1 Gallison 488, 1 Wheat. 415; United States v. Hudson & Goodwin, 7 Cranch 32; United States v. Bevans, 3 Wheat. 336; United States v. Wiltberger, 5 Id. 76. The jurisdiction of the Supreme Court is pointed out by the Constitution; but the powers of the inferior courts are regulated by statute,

and they have no powers but such as the statute gives them: Smith v. Jackson, Paine C. C. 453.

Under the head of arms of the sea enclosed within fauces terræ, or narrow headlands or promontories, is included rivers, harbors, creeks, basins, bays, &c., where the tide ebbs and flows. Such are within the admiralty jurisdiction of the United States; but if they are within the body of a county of any particular state, the state jurisdiction attaches. But in Thomas v. Lane, 2 Sumner 1, it was held that the exception did not apply to tide waters in foreign countries, and that the admiralty jurisdiction attached to torts on such waters. The numerous cases on the subject are very conflicting, but it seems to be conceded that the admiralty has an established jurisdiction to award damages for torts, or personal wrongs done on the high seas; and that waters within the ebb and flow of the tide, and which lie within the body of a county, are not, in England, within the admiralty jurisdiction: Coke's 4th Inst. 134; 2 Brown's Civ. & Adm. Law 111; The Nicolas Witzen, 3 Hagg. Adm. 369; but that in the United States all tide waters, though within the body of a county, are within the admiralty jurisdiction, and torts committed on such waters are cognizable in the admiralty: see Curtis's Treatise on Seamen, p. 562, and the cases there cited. Nay, if the tort be one continued act, though commencing on land and consummated on tide water, the admiralty has cognizance of it: Plummer v. Webb, 4 Mason 383, 384; Steele v. Thacher, Ware Adm. 91. It

is admitted, however, that the courts of common law have in America concurrent jurisdiction in cases of tort committed on the high seas. But these courts are not competent to supply a remedy in rem.

Although, Wheaton's Treatise on International Law (ed. 1864), pp. 202-3, cited by Ortolan in his " Regles Internationales et Diplomatie de la Mer," before referred to, formulates the general rule that "merchant ships of one state when they enter into the ports of another state are not exempt from the local jurisdiction, unless by express convention, and that they are only entitled to what has been provided by that convention," yet as M. Ortolan observes, "En France, à défaut de convention spéciale, est entendue, et pratiquée la règle de droit international sur cette matière." He then proceeds to draw a distinction between crimes committed on board ships of commerce in a foreign port by one of the crew on another, when the tranquillity of the port is not compromised, and crimes committed on board against persons forming no part of the crew, or even those committed by those of the crew among themselves, if the tranquillity of the port is compromised, and in the first instance declares that French legislation respects the rights of the power to which the ship belongs, and that the local authority ought not to interfere unless its assistance is called for. "Ces faits restent donc sous la police, et sous la jurisdiction de l'état auquel appartient le navire."--Ortolan. Id.

New York.

HUGH WEIGHTMAN.

RECENT AMERICAN DECISIONS.

Supreme Court of Pennsylvania.

RENICK v. BOYD.

Replevin will not lie at the common law by one out of possession of the realty against one in adverse possession under a claim of title for the recovery of chattels which have become such by severance from the realty.

Where a statute authorizes a recovery in replevin for timber, lumber, coal "or other property "severed from the realty, notwithstanding that the title to the land is in dispute, the words "other property" must be construed to mean other property ejusdem generis and do not include growing crops.

WRITS of error to the Court of Common Pleas of Chester county.

Two actions of replevin by J. Renick against J. Boyd to recover certain hay, oats and corn. Pleas, non cepit and property.

On the trial, before CLAYTON, P. J., the following facts appeared: The plaintiff had bought from the administrator of one Correy, certain land in Franklin township, Chester county, of which defendant was in the actual possession.

Defendant claimed the

land as his own, and refused to give it up. Renick subsequently took actual possession of a part of the farm, and planted and farmed it for a few months, but was forcibly dispossessed by defendant, who proceeded to harvest the crops. These actions were then brought to recover the crops which had been harvested. Meanwhile, an ejectment for the land in question had been brought by Renick against Boyd, and was pending at the trial of the replevin suits in the court below.

The court charged the jury, inter alia, as follows: "Under the evidence it clearly appears that at the time the grass, oats and corn were cut and harvested, the defendant was in actual, adverse possession of the land in dispute, by virtue of a claim of title; and, according to law, an action for replevin will not lie, under such circumstances, for the growing crops and products of land. ***

"The defendant being in possession under a claim of right when the grass, oats and corn in dispute were cut and harvested, the plaintiff's remedy is in an action for damages. He cannot recover the thing itself, and your verdict should, therefore, be for the defendant in both cases."

Verdicts for defendants and judgments thereon. Plaintiff took these writs, assigning for error the charge of the court.

William M. Hays and A. P. Reid, for plaintiff in error.

C. H. Pennypacker and J. J. Gheen, for defendant in error.

The opinion of the court was delivered by

GREEN, J.-These were two actions of replevin brought to recover certain hay, oats and corn, after the same had been harvested, upon land of which the defendant was in the actual and adverse possession both before and at the time the crops were gathered. The plaintiff had brought an action of ejectment against the defendant to recover possession of the land, and this action was pending at the time the crops in question were severed from the freehold. The plaintiff claims that he is entitled to recover in this action under the provisions of the Act of May 15th 1871, P. L. 268. That act is as follows: "In all actions of replevin now pending or hereafter brought to recover timber, lumber, coal or other property severed from the realty, the plaintiff shall be entitled to recover, notwithstanding the fact that the title to the land from which said property was severed may be in dispute. Provided said plaintiff shows title in himself at the time of severance."

The learned judge of the court below held that this act was not intended to apply to the case of growing crops severed by the person in possession under claim of title to the land on which the crops were grown. In this opinion we concur. Prior to the passage of the act in question, it had always been held that replevin would not lie by one out of possession to recover against one in possession and claiming title, for any kind of chattels which had become such by severance from the freehold, of which they had previously formed a part. Thus, in Brown v. Caldwell, 10 S. & R. 114, it was held, that replevin does not lie by one not in the actual exclusive possession of land, whatever title he may claim, against one who is in the actual, visible, notorious, exclusive possession and occupation thereof, claiming the right for slates taken out of a quarry on the land.

In Powell v. Smith, 2 Watts 126, in the application of the same doctrine, we held that replevin would not lie to recover fixtures separated and removed from a mill. On page 127, GIBSON, C. J., said: "The principle which is to govern this case was settled in Mather v. Trinity Church, 3 S. & R. 509; Baker v. Howell,

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