Reg. v. Keyn.

right, but on the acquiescence of other nations, and so limited by such acquiescence to the particular purposes for which such dominion has been acquiesced in.

In the case of Reg. v. Keyn,1 the defendant, a foreigner, commanding a foreign ship on a voyage to a foreign port, was tried and convicted of manslaughter at the Central Criminal Court for running down an English ship within three miles of the shore of England, and causing the death of a passenger under circumstances which amounted to manslaughter by English law. The learned judge at the trial, Pollock, B., reserved the question of jurisdiction for the Court for Crown Cases Reserved. The case was twice argued; the second time before fourteen judges, and the conviction was quashed by a majority of seven to six, one judge, Archibald, J., having died before the judgment was given, who would have agreed with the majority of the Court. It being admitted that the defendant being a foreigner on board a foreign ship, could not have been tried by an English Court if the crime had been committed on the high seas out of British territory, the real question in the case was whether this spot on the high seas where the collision occurred was or was not within the British territory. The minority of the Court, Lord Coleridge, C. J., Brett and Amphlett, JJ. A., Grove and Lindley, JJ., held that by the law of nations, the open sea within three miles of the coast of England is a part of the territory of the nation as much and as completely as if it were land a part of the territory of the nation, and that every enactment, whether of statute or of common law, applied to the whole of such territory, and that, therefore, the Central Criminal Court which succeeded to the criminal jurisdiction of the admiral over the seas without the body of a county, but within the territorial jurisdiction of the realm, had jurisdiction to try the case. Denman, J., agreed with the minority on the ground that the act causing death was

1 2 Ex. Div. 63.

committed on board the English ship, and so constructively Reg. v. Keyn. on British territory. The majority of the Court, Cockburn, C. J., Kelly, C. B., Bramwell, J. A., Lush and Field, JJ., Sir R. Phillimore and Pollock, B., held that the Central Criminal Court had no jurisdiction, and quashed the conviction. The elaborate judgment of Cockburn, C. J., with which the majority of the Court substantially agreed, was to the effect, that although the common consent of nations had appropriated the sea within three miles of the shore to the adjacent State to deal with as such State might think fit and expedient for its own interests, yet such concurrent assent that a portion of what was before treated as the high seas, and, as such, common to the world, should be treated as British territory, could not of itself, without the authority of Parliament, convert that which before was in the eye of the law high sea into British territory, and so change the law or give to the Courts of this country a jurisdiction over the foreigner where they had it not before. Sir R. Phillimore seems rather to imply a doubt as to the power of Parliament to legislate for these waters, so as to bind other nations, except for the purposes of the protection and peace of the State; but Lush, J., particularly guards himself from seeming to imply any doubt as to the competency of Parliament to legislate as it may think fit for these waters; and his short judgment expresses in a few words his view of the law. "I have already announced that, although I had prepared a separate judgment, I did not "feel it necessary to deliver it, because, having since perused the judgment which the Lord Chief Justice has "just read, I found that we agreed entirely in our "conclusions, and that I agreed in the main with the 66 reasons on which those conclusions are founded. I wish "however to guard myself from being supposed to imply "a doubt as to the competency of Parliament to legislate "as it may think fit for these waters. I think that usage

66

1 2 Ex. Div. 238.

"and the common consent of nations, which constitute "international law, have appropriated these waters to the "adjacent State, to deal with them as the State may deem "expedient for its own interests. They are, therefore, in "the language of diplomacy and of international law, "termed by a convenient metaphor the territorial waters "of Great Britain, and the same or equivalent phrases are "used in some of our statutes, denoting that this belt of "sea is under the exclusive dominion of the State. But "the dominion is the dominion of Parliament, and not "the dominion of the common law. That extends no "farther than the limits of the realm. In the reign of "Richard II., the realm consisted of the land within the

body of the counties. All beyond low water mark was "part of the high seas. At that period the three mile "radius had not been thought of. International law, "which, upon this subject at least, has grown up since "that period, cannot enlarge the area of our municipal "law; nor could treaties with all the nations of the world "have that effect. That can only be done by Parliament. "As no such Act has been passed, it follows that what "was out of the realm then, is out of the realm now, and "what was part of the high seas then, is part of the high "seas now, and upon the high seas the Admiralty juris"diction was confined to British ships. Therefore, al"though as between nation and nation these waters are "British territory, as being under the exclusive dominion "of Great Britain, in judicial language they are out of "the realm, and any exercise of criminal jurisdiction over a foreign ship in these waters must, in my judgment, be "authorized by an Act of Parliament."

66

This appears to be the view taken by the legislature, for immediately after the decision of the case, an Act entitled 41 & 42 Vict. The Territorial Waters Act, was passed, defining the

c. 73.

territorial waters of her Majesty's dominions to be so much of the sea adjacent to the coast as is deemed by international law to be within the territorial waters of her

Majesty, and declaring that for the purposes of the Act any part of the sea within a marine league of the coast, measured from low water mark, shall be open sea within the territorial waters of her Majesty's dominions. It then enacts, that any offence committed by a person, whether he is or is not a subject of her Majesty within the territorial waters of her Majesty's dominions, is an offence within the jurisdiction of the admiral, although it may have been committed on board or by means of a foreign ship, and the person who commits it may be arrested and tried and punished accordingly.

This statute does not enlarge or declare the law as to Title of the the ownership of the bed of the sea below low water mark, Crown to soil and it would appear, according to the decision of Reg. v. water mark as Keyn, that as no statute has been passed so appropriating nations. against other it, except in the case of an uninterrupted occupation for a sufficient time to gain a title by prescription, the Crown would have no right in the bed of the sea beyond low water mark, and within three miles as against other nations.1 The question as to whether the Crown is entitled to the ownership of the soil beneath the sea within three miles, has never been directly raised apart from the question of jurisdiction; and though it would appear now to be finally settled by Reg. v. Keyn that the Crown has no such rights below low water mark, it should be mentioned that in the case of Gammell v. Commissioners of Woods and Forests,2 Lord Wensleydale, and apparently Lord Cranworth, are of opinion that the soil of the shore within three miles is in the Crown, as are also Lord Chelmsford and Erle, C. J., in Gann v. Free Fishers of Whitstable.3

That the Crown can acquire a title to mines below low As against a water mark as against a subject, is shown by the dispute subject.

1 As to this see Blackpool Pier v. Fylde Union, 46 L. J., M. C. 189, where the Court of Common Pleas held that the part of a pier below low water mark was out of the realm, and so not rateable to the poor as an extra parochial place within 31

& 32 Vict. c. 122, s. 27.

23 McQueen, H. L. 419.

3 11 C. B., N. S. 387; 11 H. L. 192; see also judgment of Brett, J. A., in Reg. v. Keyn, 2 Ex. Div. p. 121.

Protection of

between the Crown and the Duchy of Cornwall, which resulted in the stat. 21 & 22 Vict. c. 109. That statute enacts that the mines and minerals below low water mark are, as between the Queen's Majesty in right of her Crown, and His Royal Highness the Prince of Wales in right of his Duchy of Cornwall, vested in her Majesty in right of her Crown, as part of the soil and territorial possessions of the Crown.1

Various treaties and statutes for the maintenance of revenue, etc. neutral rights during war, and the prevention of breaches of the revenue and fishery laws are now in force, and most of them recognize three miles as the limit, though this limit is not universal, for it is admitted by international law that a nation is entitled to take such measures as it may deem necessary for the protection of its revenue within a reasonable distance of its shores.2

Navigation.

The result of the authorities seems to be briefly as follows:

1. The realm of England only extends to low water mark; all beyond is the high sea.

2. For the distance of three miles, and in some cases more, international law has conceded an extension of dominion over the seas washing the shores.

3. This concession is evidenced by treaty or by long

usage.

4. In no case can the concession extend the realm of England so as to make the conceded portion liable to the common law, or to vest the soil of the bed in the Crown. This must be done by the act of the legislature.

The laws relating to navigation are, with the foregoing exceptions, the same within as without the territorial waters. These waters are free to the peaceful navigation as well by foreign as by English ships. According to international law, it is certainly the right incident to each

1 See remarks of Cockburn, C. J., in this case, which was much relied on by the defendant in Reg. v. Keyn.

2 Cockburn, C. J., 2 Ex. D. p.

216.

3 The Saxonia, 1 Lush. 410.