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writ to discharge a federal officer arrested on State process, for his conduct in executing a federal writ.' The delicate questions arising in the exercise of this branch of jurisdiction are more fully considered in another volume.?

The writ, however, will be refused when the object is to review commitments under State penal process conflicting with no federal law. And the federal courts, on habeas corpus, will not inquire into the validity of convictions and sentences of State courts acting de facto, though not de jure.


In re

1. Offences at Sea. $ 269. As a rule, a ship is viewed as part of the country whose flag she bears ;' and in conformity with this principle, all offences

| Ex parte Jenkins, 2 Wall. Jr. 521, 4 Chase, C. J., giving unanimous 1853; Ex parte Robinson, 6 McL. 355, judgment of Supreme Court of the 1855; Er parte Sifford, 5 Am. Law Reg. United States, Richmond, April, 1869; 659; In re Farrand, 1 Abb. (U. S.) In re Griffin, 25 Tex. (Sup.) 623, 1869. 140, 1867. See Whart. Cr. Pl. & Pr. Nor because the prosecuting attorney 8981.

was only a de facto officer. * Whart. Cr. Pl. & Pr. 23 981, 996 b. Humason, 46 Fed. Rep. 388, 1891. See

3 Ex parte Dorr, 3 How. (U. S.) Whart. Cr. Pl. & Pr. 78 981, 993, 996, 103, 1845; Norris v. Newton, 5 McL, on this topic, showing (1) that the 92, 1850; U. S. v. Rector, Ibid. 174, federal courts will discharge on all 1850.

imprisonments under a State law conThe federal courts will not interfere flicting with the federal constitution; by habeas corpus because persons of (2) that on a habeas corpus the conthe

negro race were excluded from the victions even of a de facto court will grand jury indicting. Wood v. Brush, not be reviewed; and (3) that State 11 Sup. Ct. Rep. 738, 1891.

as well as federal courts can review In habeas corpus to release persons arrests on extradition process. See, convicted of crime in State courts, the also, U.S. v. McClay, Deady, J., Cent. federal courts have no power to in- L. J., 1878, 255; citing U. S. ex rel. quire whether the evidence was suffi- Roberts v. Jailer of Fayette County, cient to support verdict and judgment. 2 Abb. (U. S.) 265, 1869; Ex parte In re Jordan, 49 Fed. Rep. 238, 1892. Robinson, U. S. Marshal, 1 Bond, 39, Nor will State decisions upon consti- 1856 ; Ex parte Jenkins, 2 Wall. Jr. tutionality of enactment of penal code 521, 1853; In re Neill, 8 Blatch. 156, be inquired into. Duncan v. McCall, 1871; Ex parte Joseph Smith, 3 McL. 11 Sup. Ct. Rep. 573, 1891. But the 121, 1842; U. S. v. Rector, 5 Ibid. writ will issue when the petition al- 17+, 1850. See, as to extradition genleges that a person has been deprived erally, Whart. Cr. Pl. & Pr. 88 34 et of his liberty without due process of seq. law. In re Monroe, 46 Fed. Rep. 52, 5 Whart. Conf. of L. & 978. 1891.


committed on shipboard are regarded as cognizable by the sovereign

to whom the ship belongs, no matter to what nationality Offences on ship

belongs the offender. In England, it is true, all rivers in the country, until they flow past the furthest point of nizable in country land next the sea, are held within the jurisdiction of the of flag.

courts of common law, and not of the Court of Admiralty; and where the sea flows in between two points of land in the country, a straight imaginary line being drawn from one point to the other, the common law is held to have jurisdiction of all offences committed within that line;the Court of Admiralty of all offences without it. But of crimes not merely on the high seas, but on creeks, harbors, ports, etc., in foreign countries, the Court of Admiralty is held to have undoubted jurisdiction, and such offences may consequently be piracies. Thus, where on an indictment for larceny out of a vessel lying in a river at Wampu, in China, the prosecutor gave no evidence as to the tide flowing or otherwise where the vessel lay ; the judges held that the admiralty had jurisdiction, it being a place where great ships go. As to offences committed on the coast, the admiralty is ruled to have exclusive jurisdiction of offences committed beyond low-water mark; and between that and the high-water mark, the admiralty jurisdiction is asserted over all offences done upon the water when the tide is in; it being

| R. v, Lopez, R. v. Sattler, Dears. Foreigners enlisting in the United & B. C. C. 525, 1855; 7 Cox C. C. 431. States navy are subject to United

In R. v. Serva, 1 Den. C. C. 104, it States consular jurisdiction for offences was held, according to the summary committed on board United States of Sir J. F. Stephen, “that the crim- ships. Ross v. McIntyre, 11 Sup. Ct. inal law of England does not apply Rep. 897, 1891. to foreigners on board a ship unlaw- 2 See 1 Co. 175; 3 Inst. 113; 3 T. fully in the custody of an English R. 113; 1 Hawk. c. 37, s. 11. ship of war.” On the other hand, 3 See, as to the United States, 1 “the liability,” he adds, "to the Kent. Com. 30; Com. v. Gaines, 2 Va. English criminal law of foreigners on Cas. 172, 1819. board English merchant vessels has A State, of which a port is a part, been clearly established, even if they has the power to punish crimes comare on board without their own con- mitted by one foreigner upon another sent, and even if a foreign court has foreigner on board of a foreign vessel concurrent jurisdiction over them. in the harbor. Mali v. The Keeper, This was decided by three cases: R. v. 7 Sup. Ct. Rep. 385, 1887. Lopez, (1 D. & B. 525, 1855) and R. * But see R. v. Bruce, R. & R. 242, v. Sattler, decided in 1858, and R. v. 1817. Anderson, (L. R. 1 C. C. 161) de- 5 R. v. Allen, 1 Mood. C. C. 494, cided in 1868.” 2 Steph. Hist. Crim. 1835. Law, 3.

admitted that courts of common law have jurisdiction over offences committed upon the strand when the tide is out. All the other parts of the high sea are indisputably within the jurisdiction of the admiralty.

Since the passage of the Merchants' Shipping Act, in 1854, British jurisdiction is pushed so far as to embrace offences committed by British seamen abroad, in port as well as on ship. Since this act, also, it has been held that the central criminal court has jurisdiction of offences, primarily cognizable in admiralty, committed on British ships in foreign rivers, or at sea, though the offenders be foreigners.

*1 Whart. Prec., notes to form 1067. the decision of the court below), that

? R. v. Anderson, L. R. 1 C. C. the jurisdiction given by the Admi161, 1869; 11 Cox C. C. 198. See ralty Court Act, 1861, s. 7, does not Lewis on For. Jur. p. 25. In R. v. include claims under Lord Campbell's Carr, 47 L. T. (N. S.) 450, 1881, juris- Act. The appeal was dismissed. diction was held to exist in the same In R. v. Keyn, L. R. 2 Ex. D. 23; court over receivers (British subjects) 13 Cox, 403, 1876, a case growing out of goods stolen on board of a British of the Franconia disaster, it was ruled ship in the port of Rotterdam. in England that the Court of Criminal

In connection with the text may be Appeal has no jurisdiction to try a noticed the much discussed case of foreigner, who, in a foreign ship, is The Franconia, 36 L. T. (N. S.) 640, chargeable with a negligent collision, 1877; a case also reported in 2 L. R. producing death in the colliding EngAdm. Div. 163; 46 L. J. Adm. Div. lish ship, though the collision was 33; 25 W. R. 796. In this case the within three miles of the English admiralty branch of Pr. & Adm. coast. The vote of the court, howDivision had refused a motion to set ever, on this point was seven to six: aside so much of a writ of summons aff. Cockburn, C. J., Kelly, C. B., in rem as claimed compensation for Bramwell, J. A., Lush, J., Pollock, B., the loss sustained by the plaintiff in Field, J., and Sir R. Phillmore; diss. consequence of the death of a person Lord Coleridge, C. J., Brett, J., Amof whom she was administratrix, and phlett, J. A., Grove, Denman, and who, whilst serving on board a British Lindley, JJ. ship, had lost his life through a col- This case, with the subsequent leglision between his vessel and a foreign islation, is discussed by me in 1 Crim. ship on the high seas, caused by the Law Mag. 701 et seq. Degligence of those on board the for- The points taken by Cockburn, C. J., eign ship. On appeal, it was held by in which a majority of the judges James and Bagallay, L. JJ., (approv- agreed, were as follows: ing the decision of the court below), “The extent of the realm of Engthat the judge of the Admiralty Di- land is a question, not of international vision has jurisdiction to entertain a but of English law. suit in rem under Lord Campbell's “ There is no evidence that the sovAct. It was, however, ruled by Bram- ereigns of this country ever either well and Brett, L.JJ., (disapproving claimed or exercised any special jurisThe same general principles are admitted in German and French jurisprudence. $ 270. In the United States, by statute, the federal courts have


jurisdiction not only of all piracies, revolts, homicides; Federal

robberies, and malicious injuries to vessels, and of other have juris- crimes, on the high seas, by all persons without regard to

nationality, but of offences committed in American ships high seas and out of in foreign ports; "and the trial of crimes committed on State juris- the high seas, or in any place out of the jurisdiction of any

particular State, shall be in the district where the offender is apprehended, or into which he may be first brought." And this act


crimes on


diction over a belt of sea adjacent to accordingly.” This is in accordance the coast, though there is evidence with the ruling in U. S. v. Davis, 2 that the admiral has always claimed Sumn. 482, 1837. jurisdiction over persons on board of 1 Whart. Conf. of L. & 861. British ships, wherever they might be, Brightly, , pp. 207–209; Rev. Stat, and that he formerly claimed juris- U. S. 1878, 5372. diction over all persons and all ships 3 Whart. Con. of L. & 862, citing Ex in the four narrow seas. This claim, parte Bollman, 4 Cranch, 375, 1807; however, has long since been given U. S. v. Magill, 1 Wash. C. C. 463, up, and no other claim has ever been 1806; U. S. v. Thompson, 1 Sumn. substituted for it.

168, 1836. In this country a vessel “Hence there is no evidence that lying in an open roadstead of a foreign any British court has jurisdiction over country is held to be on the high seas. a crime committed by a foreigner on U. S. v. Pirates, 5 Wheat. 184, 1820; board a foreign ship on the high sea, U. S. v. Gordon, 5 Blatch. C. C. 18, but within three miles of the coast.” 1861; and so, also, of a vessel lying 2 Steph. Hist. Crim. Law, 31. in a harbor, fastened to the shore by

In Keyn's Case, according to Sir J. a cable, and communicating with the F. Stephen (2 Hist. Crim. Law, 10), shore by boats, and not within any infour of the judges " seem to have been closed dock, or at any pier or wharf. of opinion that a crime committed by U. S. v. Seagrist, 4 Blatch. 420, 1860. an act which extends over more juris- With us it is not necessary, to give dictions than one in space is com- the federal courts jurisdiction, that mitted in the jurisdiction in which it the vessel should have belonged to takes effect, whether or not it is also citizens of the United States; it is committed in the jurisdiction in which enough if she had no national charit begins to be done. In accordance acter, but was held by pirates, or perwith this view, Baron Pollock and I sons not lawfully sailing any foreign lately held that a man who obtained flag. And the offence is equally cog. goods from a merchant in Prussia by nizable by the United States courts, if false pretences contained in a letter committed on board of a foreign vessel sent from Amsterdam, where he lived by a citizen of the United States, or by when he wrote the letter, obtained a foreigner on board of a United States them in Prussia, and we refused a vessel; or by a citizen or foreigner on habeas corpus to prevent his extradition board of a piratical vessel. U. S. t.

gives concurrent jurisdiction to the place of arrest, and that in which the defendant is first brought.'

§ 270 a. What is the jurisdiction of a State over the Sovereign ocean? To this question, which is of importance in view diction of of the distinction noticed in the last section, we may reply sea within that a sovereign has jurisdiction of the sea bounding his shot coast to the distance of a cannon-shot from low-water shore. mark.

2. Offences by Subjects abroad. $ 271. It is generally conceded that subjects should be held responsible to the courts of their country for offences com

Subjects mitted in barbarous or unsettled lands.3 In England, the may be right to exercise extra-territorial jurisdiction over subjects ble to their is assumed to be an essential attribute of sovereignty.

eign for Mr. Wheaton states the principle very largely. “This” offences (the territorial)“ principle is peculiar to the jurisprudence of Great Britain and the United States, and even in those two countries it has been frequently disregarded by the positive legisla

4 own sover


Furlong, 5 Wheat, 183, 1820; Ex parte not yet been formally extended any Bollman, 4 Cranch, 375, 1807; U. S. supreme human power, it may be that v. Kessler, 1 Bald. 20, 1828. But it is any regular government may feel, as otherwise with acts of piracy com- it were, a divine commission to try mitted by citizens of a foreign coun- and punish. It may, as in cases of try in foreign vessels. Ibid. ; U. 8. v. crime committed in the solitudes of Palmer, 3 Wheat. 610 at p. 632, 1818. the ocean, upon and by vessels belongThe State of which a port is a part ing to no government, pro hac vice has the power to punish crimes com- arrogate to itself the prerogative of mitted by one foreigner upon another omnipotence, and hang the pirate of foreigner on board of a foreign vessel the land as well as of the water." in the harbor. Mali v. Keeper, 7 Sup. * Lewis on Foreign Jurisdic. etc., p. Ct. Rep. 385, 1887.

14, citing acts of 6 & 7 Vict. c. 94. U. S. v. Baker, 5 Blatch. 6, 1861. As to bigamy, see infra, && 1685–1696.

Lawrence's Wheat. 321, 715, note, In 1878 the British government See Com. v. Peters, 12 Metc. 387, 1847, went so far as to sustain the execution, cited supra, & 260; Manley v. People, on board the ship Beagle, at sea, of a 7 N. Y. 295, 1852; Mali v. Keeper, 7 South Sea Islander, charged with the Sup. Ct. Rep. 385, 1887.

murder on shore of an Englishman. See Whart. Conf. of L. & 71. See Sat. Rev. Aug. 10, 1878, 169. And But the authorities go beyond this see this case discussed by me in 4 limit. “Where an act,” said Judge South. Law Review, 676, and also Vredenburgh (State v. Carter, 3 Dutch. infra, & 284, note. The jurisdiction 501, 1859), in the Supreme Court of is doubted in Rosc. Crim. Ev. pp. 246, New Jersey, malum in se, is done in 247. solitudes, upon land where there has

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