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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.2

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.*

IV. CONFLICT AND CONCURRENCE OF JURISDICTIONS.

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

Er parte Jenkins, 2 Wall. Jr. 521, 1853; Ex Parte Robinson, 6 McL. 355, 1855; Ex parte Sifford, 5 Am. Law Reg. 659; Ira re Farrand, 1 Abb. (U. S.) 140, 1867. See Whart. Cr. Pl. & Pr. 981.

? Whart. Cr. Pl. & Pr. ¿? 981, 996 b.

3 Ex

parte Dorr, 3 How. (U. S.) 103, 1845; Norris v. Newton, 5 McL. 92, 1850; U. S. v. Rector, Ibid. 174,

1850.

* Chase, C. J., giving unanimous judgment of Supreme Court of the United States, Richmond, April, 1869; In re Griffin, 25 Tex. (Sup.) 623, 1869. Nor because the prosecuting attorney was only a de facto officer. In re Humason, 46 Fed. Rep. 388, 1891. See Whart. Cr. Pl. & Pr. ?? 981, 993, 996, on this topic, showing (1) that the federal courts will discharge on all imprisonments under a State law conflicting with the federal constitution;

The federal courts will not interfere 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

Cent.

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., 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; Er 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- 174, 1850. See, as to extradition gen

leges that a person has been deprived erally, Whart. Cr. Pl. & Pr. 34 et of his liberty without due process of seq.

law. In re

1891.

Monroe, 46 Fed. Rep. 52,

5 Whart. Conf. of L. 978.

Offences on ship

nizable in

country of flag.

committed on shipboard are regarded as cognizable by the sovereign to whom the ship belongs, no matter to what nationality belongs the offender.' In England, it is true, all rivers board cog- in the country, until they flow past the furthest point of land next the sea, are held within the jurisdiction of the 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

1 R. v. Lopez, R. v. Sattler, Dears. & B. C. C. 525, 1855; 7 Cox C. C. 431. In R. v. Serva, 1 Den. C. C. 104, it was held, according to the summary of Sir J. F. Stephen, "that the criminal law of England does not apply to foreigners on board a ship unlawfully in the custody of an English ship of war." On the other hand, "the liability," he adds, "to the English criminal law of foreigners on board English merchant vessels has been clearly established, even if they are on board without their own consent, and even if a foreign court has concurrent jurisdiction over them. This was decided by three cases: R. v. Lopez, (1 D. & B. 525, 1855) and R. v. Sattler, decided in 1858, and R. v. Anderson, (L. R. 1 C. C. 161) decided in 1868." 2 Steph. Hist. Crim.

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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.1

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. 2

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Whart. Prec., notes to form 1067. 1 R. v. Anderson, L. R. 1 C. C. 161, 1869; 11 Cox C. C. 198. See Lewis on For. Jur. p. 25. In R. v. Carr, 47 L. T. (N. S.) 450, 1881, jurisdiction was held to exist in the same court over receivers (British subjects) of goods stolen on board of a British ship in the port of Rotterdam.

the decision of the court below), that the jurisdiction given by the Admiralty Court Act, 1861, s. 7, does not include claims under Lord Campbell's Act. The appeal was dismissed.

In R. v. Keyn, L. R. 2 Ex. D. 23; 13 Cox, 403, 1876, a case growing out of the Franconia disaster, it was ruled in England that the Court of Criminal Appeal has no jurisdiction to try a foreigner, who, in a foreign ship, is chargeable with a negligent collision, producing death in the colliding English ship, though the collision was within three miles of the English coast. The vote of the court, however, on this point was seven to six: aff. Cockburn, C. J., Kelly, C. B., Bramwell, J. A., Lush, J., Pollock, B., Field, J., and Sir R. Phillmore; diss. Lord Coleridge, C. J., Brett, J., Amphlett, J. A., Grove, Denman, and Lindley, JJ.

In connection with the text may be noticed the much discussed case of The Franconia, 36 L. T. (N. S.) 640, 1877; a case also reported in 2 L. R. Adm. Div. 163; 46 L. J. Adm. Div. 33; 25 W. R. 796. In this case the admiralty branch of Pr. & Adm. Division had refused a motion to set aside so much of a writ of summons in rem as claimed compensation for the loss sustained by the plaintiff in consequence of the death of a person of whom she was administratrix, and who, whilst serving on board a British ship, had lost his life through a collision between his vessel and a foreign ship on the high seas, caused by the negligence of those on board the foreign ship. On appeal, it was held by James and Bagallay, L. JJ., (approving 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.

This case, with the subsequent legislation, is discussed by me in 1 Crim. Law Mag. 701 et seq.

The points taken by Cockburn, C. J., in which a majority of the judges agreed, were as follows:

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 juris

The same general principles are admitted in German and French jurisprudence.1

courts

diction of

2

§ 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 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 high seas

diction.

1 Whart. Conf. of L. 861.

2

Brightly, pp. 207-209; Rev. Stat. U. S. 1878, 5372.

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 British ships, wherever they might be, and that he formerly claimed jurisdiction over all persons and all ships in the four narrow seas. This claim, however, has long since been given up, and no other claim has ever been substituted for it.

"Hence there is no evidence that any British court has jurisdiction over a crime committed by a foreigner on board a foreign ship on the high sea, but within three miles of the coast." 2 Steph. Hist. Crim. Law, 31.

3 Whart. Con. of L. 2 862, citing Ex parte Bollman, 4 Cranch, 375, 1807; U. S. v. Magill, 1 Wash. C. C. 463, 1806; U. S. v. Thompson, 1 Sumn. 168, 1836. In this country a vessel lying in an open roadstead of a foreign country is held to be on the high seas. U. S. v. Pirates, 5 Wheat. 184, 1820; U. S. v. Gordon, 5 Blatch. C. C. 18, 1861; and so, also, of a vessel lying 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 coggoods 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. v.

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

Sovereign has jurisdiction of

sea within cannon

§ 270 a. What is the jurisdiction of a State over the ocean? To this question, which is of importance in view of the distinction noticed in the last section, we may reply that a sovereign has jurisdiction of the sea bounding his coast to the distance of a cannon-shot from low-water shore. mark.2

2. Offences by Subjects abroad.

shot

from

Subjects may be responsi

§ 271. It is generally conceded that subjects should be held responsible to the courts of their country for offences committed in barbarous or unsettled lands.3 In England, the right to exercise extra-territorial jurisdiction over subjects ble to their is assumed to be an essential attribute of sovereignty.1 4 own soverMr. 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

eign for

abroad.

Furlong, 5 Wheat, 183, 1820; Ex parte not yet been formally extended any Bollman, 4 Cranch, 375, 1807; U. S. v. Kessler, 1 Bald. 20, 1828. But it is otherwise with acts of piracy committed by citizens of a foreign country in foreign vessels. Ibid.; U. S. v. Palmer, 3 Wheat. 610 at p. 632, 1818. The State of which a port is a part has the power to punish crimes committed by one foreigner upon another foreigner on board of a foreign vessel in the harbor. Mali v. Keeper, 7 Sup. Ct. Rep. 385, 1887.

supreme human power, it may be that any regular government may feel, as it were, a divine commission to try and punish. It may, as in cases of crime committed in the solitudes of the ocean, upon and by vessels belonging to no government, pro hac vice arrogate to itself the prerogative of omnipotence, and hang the pirate of the land as well as of the water."

1 U. S. v. Baker, 5 Blatch. 6, 1861. 'Lawrence's Wheat. 321, 715, note, See Com. v. Peters, 12 Metc. 387, 1847, cited supra, 260; Manley v. People, 7 N. Y. 295, 1852; Mali v. Keeper, 7 Sup. Ct. Rep. 385, 1887.

Lewis on Foreign Jurisdic. etc., p. 14, citing acts of 6 & 7 Vict. c. 94. As to bigamy, see infra, ?? 1685-1696.

In 1878 the British government went so far as to sustain the execution, on board the ship Beagle, at sea, of a South Sea Islander, charged with the murder on shore of an Englishman. 3 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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