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jurisdiction of the admiralty of England, the same shall be dealt with, inquired of, tried, and determined in the same manner as any other felony or misdemeanor committed within that jurisdiction. Similar provisions are contained in the malicious injuries act, 7 and 8 Geo. 4, c. 30, s. 43 ; the act providing for offences against the person, 9 Geo. 4, c. 31, s. 32, and the recent statutes of the 11 Geo. 4, and 1 Wm. 4, c. 66, s. 27, 7 Wm. 4, and 1 Vict. c. 85, s. 10, 7 Wm. 4, and 1 Vict. c. 86, s. 10, 7 Wm. 4, and 1 Vict. c. 87, s. 13, and 7 Wm. 4, and 1 Vict. c. 89, s. 14.
It is often a question of some difficulty, whether an offence was committed within the jurisdiction of the admiralty. With regard to the sea shore, it is clear that the common law and the admiralty have alternate jurisdiction between high and low water mark. 3 Inst. 113, 2 Hale, P. C. 17. Therefore if a man be wounded on the sea, or a creek of the sea, at high-water, and on the reflux of the tide, dies on the spot which the water had covered, the admiralty has no jurisdiction of this felony. Lacie's case, 2 Hale, P. C. 19. Bingham's case, 2 Co. 93, a.
The following authorities collected by Mr. East, are referred to by Mr. Serjeant Russell, as containing the general rules upon the subject of the admiralty jurisdiction. In general, it is said that such parts of the rivers, arms, [*234] and creeks are deemed to be within the *bodies of counties, where persons can see from one side to the other. Lord Hale, in his Treatise De Jure Maris, says, that the arm or branch of the sea, which lies within the fauces terræ, where a man may reasonably discern between shore and shore, is or at least may be within the body of a county. Hawkins, however, considers the line more accurately confined, by other authorities, to such parts of the sea, where a man standing on the one side of the land may see what is done on the other, and the reason assigned by Lord Coke in the Admiralty case, (13 Co. 52,) in support of the county coroner's jurisdiction, when a man is killed in such places, because the county may well know it, seems rather to support the more limited construction. But at least, when there is any doubt, the jurisdiction of the common law ought to be preferred. 2 East, P. C. 804. 1 Russell, 108.
In the following case the common law and the admiralty were held to have concurrent jurisdiction in a haven. A murder was committed in Milford Haven, seven or eight miles from the river's mouth, and sixteen miles below any bridge across the river; the passage where the murder was committed was about three miles across, and the place itself about twenty-three feet deep, and never known to be dry but at very low tides. Sloops and cutters of one hundred tons were able to navigate where the body was found, and nearly opposite the place men-of-war were able to ride at anchor. The deputy vice admiral of Pembrokeshire had of late employed his bailiff to execute process in that part of the haven. The judges were unanimously of opinion that the trial was rightly had at the admiralty sessions, though the place was within the body of the county of Pembroke, and the courts of common law had concurrent jurisdiction. During the discussion, the construction of the statute 28 H. 8, c. 15, by Lord Hale was much preferred to the doctrine of Lord Coke in his Institutes, (3 Inst. 111, 4 Inst. 134,) and most if not all the judges seemed to think that the common law had a concurrent jurisdiction in this haven, and in other havens, creeks, and rivers of this realm. Bruce's case, 2 Leach, 1093, Russ. and Ry. 243 (a); Anon. 1 Lewin, C. C. 242.
(a) 1 Eng. C. C. 243.
The offences above mentioned are inquired of, tried, and determined before the judge of the Admiralty Court and two of the judges of the common law courts under a commission of oyer and terminer; and in the indictment, no county is inserted in the margin as venue, but, instead of it, merely the words "Admiralty of England." Arch. C. L. 20, 7th ed.
But by the Central Criminal Court Act, 4 and 5 Wm. 4, c. 36, s. 22, it is enacted, that it shall and may be lawful for the justices and judges of oyer and terminer, and gaol delivery, to be named in and appointed by the commissioners to be issued under the authority of the act, or any two or more of them to inquire of, hear, and determine any offence or offences committed, or alleged to have been committed on the high seas, or other places within the jurisdiction of England, and to deliver the gaol of Newgate of any person or persons committed to, or detained therein for any offence or offences alleged to have been done or committed [ *235] upon the high seas within the jurisdiction of the Admiralty of England; and all indictments found, and trials and other proceedings had and taken by and before the said justices and judges shall be valid and effectual to all intents and purposes whatsoever. The same section enables the justices and judges to order the payment of costs in the manner prescribed by the stat. 7 Geo. 4, c. 64, ante, p. 109.
Where a prisoner was convicted at the Central Criminal Court of larceny out of a vessel lying in a river at Wampu, in China, twenty or thirty miles from the sea, the prosecutor gave no evidence as to the tide flowing or otherwise where the ship lay, but the judges held that the conviction was right, the place being one where great ships go. Allen's case, 1 Moo. C. C. 494 (a).
For offences against the customs, committed on the high seas, the venue may be laid in the county into which the offender is taken, and if he be taken to a city, borough, &c., then in the county in which such city or borough is situate. 3 & 4 Wm. 4, c. 53, s. 77. See R. v. Nunn, 8 B. and C. 644 (b), 3 M. and R. 75.
Offences against the excise, customs, stamps, &c.] In indictments for resisting or assaulting officers of the excise, 7 and 8 Geo. 4, c. 53, s. 43, or for offences against the revenue of the customs, 3 and 4 Wm. 4, c. 53, s. 122, the venue may be laid in any county. As to offences against the customs committed on the high seas, vide 3 and 4 Wm. 4, c. 53, s. 77, ante, p. 234.
In indictments for offences against the stamp duties, the venue may be laid either in the county where the offence was committed, or in the county in which the parties accused or any of them shall have been apprehended. 53 Geo. 3, c. 108, s. 21.
Venue and jurisdiction of the New Central Criminal Court.] By the 4 and 5 Wm. 4, c. 36, s. 2, the jurisdiction of the new Central Criminal Court extends over all offences committed within the city of London and county of Middlesex, and those parts of the counties of Essex, Kent, and Surrey, within the parishes of Barking, East Ham, West Ham, Little Ilford, Low Layton, Walthamstow, Wamstead, St. Mary Woodford, and Chingford, in the county of Essex; Charlton, Lee, Lewisham, Greenwich,
(a) 2 Eng. C. C.494. (b) Eng. Com. L. Rep. xv. 325.
Woolwich, Eltham, Plumstead, St. Nicholas Deptford, that part of St. Paul Deptford which is within the said county of Kent, the liberty of Kidbrook and the hamlet of Mottingham in the county of Kent; and the borough of Southwark, the parishes of Battersea, Bermondsey, Camberwell, Christchurch, Clapham, Lambeth, St. Mary Newington, Rotherhithe, Streatham, Barnes, Putney, and that part of St. Paul Deptford which is within the said county of Surrey, Tooting, Graveney, Wandsworth, Merton, Mortlake, Kew, Richmond, Wimbledon, the clink liberty, and the district of Lambeth palace in the county of Surrey.
By s. 3, the district situated within the limits of the jurisdiction therein[*236] before established is to be deemed one county for all *purposes of venue, local description, trial, judgment and execution not therein specially provided for; and in all indictments and presentments the venue laid in the margin shall be "Central Criminal Court to wit," and all offences and material facts are to be laid to have been committed and averred to have taken place "within the jurisdiction of the said court." Where an indictment for misdemeanor was preferred at the Central Criminal Court, and the marginal venue was, "Central Criminal Court to wit," and in the body of the indictment the facts were stated to have taken place "at the parish of St. Mary, Lambeth, Surrey, within the jurisdiction of the said court." The indictment being removed by certiorari, it was held that the trial must be at the assizes for Surrey. Connop's case, 4 A. and E. 942 (a).
Want of a proper venue, when cured.] By stat. 7 Geo. 4, c. 64, s. 20, no judgment upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default, or otherwise, shall be stayed or reversed for want of a proper or perfect venue, where the court shall appear by the indictment or information to have had jurisdiction over the offence.
Change of venue.] Where a fair and impartial trial cannot be had in the county where the venue is laid, the Court of King's Bench (the indictment being removed thither by certiorari) will, upon an affidavit stating that fact, permit a suggestion to be entered on the record, so that the trial may be had in an adjacent county. Good ground must be stated in the affidavit, for the belief that a fair trial cannot be had. Clendon's case, 2 Str. 911. Harris's case, 3 Burr. 1330. 1 W. Bl. 378. Archb. C. L, 26, 4th ed. The suggestion need not state the facts from which the inference is drawn, that a fair trial cannot be had. Hunt's case, 3 B. and A. 444 (b). This suggestion when entered, is not traversable. 1 Chitty C. L. 201. And the venue in the indictment remains the same, the place of trial alone being changed. Ibid.
It is only, however, in case of misdemeanor, that the Court of King's Bench will, in general, award a venire to try in a foreign county, though cases may occur in which the court would change the venue in felony. Holden's case, 5 B. and Ad. 347 (c); 2 Nev. and M. 167. And even in cases of misdemeanor, the court has not exercised its discretionary power, unless there has been some peculiar reason, which made the case almost one of necessity. Per Cur. Ib.
(a) Eng. Com. L. Rep. xxxi. 231. (b) Id. v. 342. (c) Id. xxvii. 96.
Upon an indictment for a misdemeanor, the application to change the venue ought not to be made before issue joined. Forbes' case, 2 Dowl. P. C. 440.
*EVIDENCE IN PARTICULAR PROSECUTIONS. [ *237 ]
At common law.] It is stated to be the better opinion, that if a man marry a woman under age, without the consent of her father or guardian, that act is not indictable at common law; but if children be taken from their parents or guardians, or others intrusted with the care of them, by any sinister means, either by violence, deceit, conspiracy, or any corrupt or improper practices, (as by intoxication) for the purpose of marrying them though the parties themselves may be consenting to the marriage, such criminal means will render the act an offence at common law. 1 East, P. C. 458, 459; 1 Russell, 569. So, seduction may take place under such circumstances of combination and conspiracy, as to render it an indictable offence. Lord Grey's case, 3 St. Tr. 519; 1 East, P. C. 460; 1 Russ. 570.
By statute.] The offence of abduction was provided against by statutes 3 H. 7, c. 2, 39 Eliz. c. 9, 4 and 5 P. and M. c. 8, and 1 Geo. 4, c. 115: but these statutes are now repealed, and their provisions consolidated in the 9 Geo. 4, c. 31.
By the 19th section of that statute, it is enacted, that where any woman shall have any interest, whether legal or equitable, present or future, absolute, conditional, or contingent, in any real or personal estate; or shall be an heiress presumptive, or next of kin to any one having such interest, if any person shall from motives of lucre, take away or detain such woman against her will, with intent to marry or defile her, or to cause her to be married or defiled by any other person; every such of fender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and *being convicted thereof, shall be [*238 ] liable to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned with or without hard labor, in the common gaol or house of correction, for any term not exceeding four
Upon an indictment under this statute, the prosecutor must prove-1, the taking away or detaining of the woman against her will. 2, that the woman had such an interest as is specified in the statute. 3, that the taking away or detaining, was from motives of lucre. 4, the intent to marry or defile, &c.
Proof of the taking away or detaining against the will, &c.] The statute 3 H. 7, c. 2, like the statute 9 Geo. 4, uses the words, "take against her will," and upon those words, it has been held, that getting a woman inveigled out by confederates, and detaining her, and taking her away, is a taking within the statute of H. 7. Thus, where a confederate of the prisoner inveigled a girl of fourteen, having a portion of 5000l. to go with her and a maid-servant in a coach into the Park, where the prisoner got into the coach, and the two women got out, and the prisoner detained the girl while the coach took them to his lodgings in the Strand: where, the next morning, he prevailed upon her, by threatening to carry her beyond the scas, in case she refused, to marry him, (though there was no evidence that she was deflowered) the prisoner was convicted, and executed. Brown's case, 1 Ventr. 243; 1 Russell, 571. So it is said, that it is no manner of excuse that the woman at first was taken away with her own consent, because, if she afterwards refuses to continue with the offender, and be forced against her will, she may, from that time, as properly be said to be taken, against her will, as if she had never given any consent at all; for till the force was put upon her, she was in her own power. Hawk. P. C. b. I, c. 41, s. 7; 1 East, P. C. 454. This would probably be now considered as a "detaining" within the statute 9 Geo. 4, c. 31. See also Wakefield's case, Murray's ed.
Proof of the woman's interest.] The prosecutor must prove that the woman was interested in real or personal estate, according to the allegation in the indictment, or that she was the heiress or next of kin to some one having such interest. Evidence of this fact must be given in the usual way, and possession either of real or personal estate will be prima facie evidence of interest. To prove that the party is heiress, or next of kin, one of the family, or some one acquainted with the family may be called.
Proof that the offence was committed from motives of lucre.] That the party was guilty of the offence from motives of lucre, will in general be gathered from the whole circumstances of the case. Proof that there was little or no previous intercourse between the parties, will tend to establish this part of the case. So, that the offender was in needy circumstances, or that he has made declarations tending to show the object with [*239] which he committed the *crime. Thus, in Lockart Gordon's case, 1 Russell, 575, it was proved that the prisoner was pressed for money, and backward in his payments; and that he had admitted to one of the witnesses that he was in distressed circumstances.
Proof of the intent to marry or defile.] Under the statute 3 H. 7, it was necessary that there should be a marriage or defilement, the taking alone not being sufficient; And. 115. Cro. Car. 486. 1 Russell, 571; and it was not necessary to aver an intent to marry or defile; Fulwood's