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Australian Year Book of International Law |
Geoffrey Marston[*]
In the extensive court proceedings in Canada and Australia concerning the attribution of offshore legislative and proprietary rights between the respective federal and federated entities, the Territorial Waters Jurisdiction Act 1878 (hereinafter called the 1878 Act), an Act of the Westminster Parliament, has been considered relevant to the correct location of colonial maritime boundaries. The primary aim of this article is to evaluate this relevance while at the same time examining the Act’s more general significance.
The reason for the promulgation of the 1878 Act is not in doubt. During its Parliamentary progress, the Lord Chancellor, Lord Cairns, stated that ‘the object of the Bill is to cure a defect discovered to exist in our own law’.[1] The ‘discovery’ was made in November 1876 by the Court for Crown Cases Reserved in R v Keyn (the Franconia Case).[2 ]By a majority of seven to six, it quashed the conviction at the Central Criminal Court of a German master of a German ship that had collided with a British ship while both were in passage within three miles of the Kent coast near Dover, causing a passenger on the British ship to die by immersion in the sea. The indictment had alleged manslaughter committed ‘within the jurisdiction of the Admiralty of England’.[3]
Of the seven judges in the majority, one, Bramwell JA, in what he described as ‘a very narrow-minded view of the matter’,[4] decided the case solely on the absence from the criminal jurisdiction of the Lord High Admiral of England — and thus from the jurisdiction of the English courts to which the Admiral’s jurisdiction had been transferred by statute — of any power to try a foreign defendant on a charge of having committed a crime on board a foreign ship on the ‘high seas’, which term had the wide meaning of any tidal water outside the body of an English county. The other six majority judges were of the same opinion, and since this was the only proposition of law acted on by all seven, who also constituted a majority of the whole court, it constitutes the sole ratio decidendi of the case.[5]
Bramwell JA’s ‘narrow-minded’ view would probably have commended itself to Henry Thring, Parliamentary Counsel to the Treasury, to whom Lord Cairns entrusted the task of preparing remedial legislation. In a memorandum dated 10 May 1877 that accompanied his earliest drafts of a bill, Thring gave his opinion of the effect of Keyn as follows:
It appears to me that the only result of the Franconia case is to decide that the jurisdiction of an English court does not extend to a crime committed by a foreigner within a marine league, merely on account of the technical defect that the common law courts have no jurisdiction over crimes not committed within the body of an English county, while the admiral has jurisdiction only over British subjects or British vessels.
The defect, therefore, in the law as found in the Franconia case is one of form and not of substance.[6]
However, some remarks by the majority judges, other than Bramwell JA, supported — or were thought to support — wider propositions of law. Four of these propositions in particular are of relevance to the present discussion.
On 14 February 1878, in introducing the Bill to remedy the ‘defect’ exposed by Keyn, the Lord Chancellor stated:
there fell some observations from Sir Robert Phillimore, the Lord Chief Baron, and the Lord Chief Justice … which contained a principle that seemed to challenge the right of Parliament to legislate on this subject. Some expressions of the Lord Chief Justice would certainly seem to imply that we could not legislate with respect to the high seas, even within the limits of the belt or zone to which he had referred, without the consent of foreign nations, or until after communication with foreign nations. That was a very serious question.[7]
Fears were also expressed that the legislative power of colonies below low-water mark had been impaired by Keyn. On 16 February 1877, R S Wright (later R S Wright J), a barrister engaged upon a revision of the criminal procedure of Jamaica, wrote to the Colonial Office as follows:
May I suggest that if a bill is passed this year for getting over the Franconia case and re-establishing the formerly admitted jurisdiction over the three miles from low-water mark, the Colonial Office should have a clause inserted enabling colonial legislatures to legislate for a similar purpose and confirm their past legislation. The Indian Codes purport to include the 3 miles of water, but I imagine that since the Franconia case they must be taken to require Parliamentary confirmation in this respect.
The point may be of very considerable importance.[8]
The Colonial Office sent the letter to the Foreign Office commenting that it agreed with Wright’s suggestion. The Foreign Office sent it in turn to the Home Office which on 19 June 1877 forwarded it to the Attorney-General.[9]
Apprehension in the colonies about the implications of the judgments in Keyn soon appeared. The Governor of the Bahamas sent to the Colonial Office a letter of 15 September 1877 from his Attorney-General, B L Burnside, who, having referred to Keyn, continued: ‘a question of no trifling moment arises as to how far the courts of the Colonies can have jurisdiction over offences which although prohibited by local laws, are committed within the sea limit which had hitherto been considered as subject to territorial jurisdiction’.[10] In reply on 2 October 1877, the Colonial Office wrote: ‘I have to point out to you that the case of the ‘Franconia’ only decided that a foreigner on board a foreign ship, passing on the high seas within three miles of a British coast, is not liable to the criminal jurisdiction of a British Court.’[11]
In the Queensland legislature, apprehension was expressed by Samuel Griffith, a former Attorney-General of the colony. Speaking on 14 July 1879 in a debate concerning local jurisdiction over the waters in Torres Strait, Griffith stated that the colony had an extensive coastline and an immense number of islands within 60 miles of it ‘but over the intervening waters they had no jurisdiction whatever’. He suggested that the solution was to persuade the Imperial Parliament to confer jurisdiction; the colony had been told earlier that its jurisdiction was three miles ‘but that law had since been upset by the highest tribunal in England, and it was now doubtful whether they had jurisdiction beyond low-water mark’.[12] The Governor referred Griffith’s comments to the Colonial Office in London.
Some thought that Keyn had decided that, unless extended by statute, the realm of England and the ambit of the common law stopped with the seaward limit of the counties, which, except for areas inter fauces terrae, was the low-water mark.[13] Indeed, six weeks after that decision, in Harris v Owners of the ‘Franconia’, a civil action arising out of the same collision, one of the dissenting judges in Keyn, Lord Coleridge CJ, stated:
The ratio decidendi of that judgment is, that, for the purposes of jurisdiction (except where under special circumstances and in special Acts parliament has thought fit to extend it), the territory of England and the sovereignty of the Queen stops at low-water mark.[14]
Denman and Grove JJ, also dissenters in Keyn, agreed with Lord Coleridge CJ’s judgment, Denman J remarking that Keyn had clearly held that ‘for all purposes, apart from any express statutory provision, the moment you get beyond low-water mark you get beyond the jurisdiction within which the Queen’s writ runs’.[15]
Likewise in Blackpool Pier Co. Ltd. & North Blackpool Jetty Co. Ltd. v Fylde Union Assessment Committee,[16] concerning the liability for rates of that part of a pier that projected seaward of the low-water mark, Lord Coleridge CJ held on the basis of Keyn that the part in question was ‘beyond the realm of England’ while Grove J stated that it was ‘out of the jurisdiction of the realm of England’. The case turned on a point of statutory interpretation and the question whether the pier extended beyond British territory was not raised even though it was by a grant from the Crown 15 years previously that the present owners had acquired the seabed below low-water mark on which the part of the pier was constructed.
The possibility that Keyn might have adversely affected the Crown’s claims to undersea proprietary rights occurred to a firm of solicitors in London, Few & Co., that acted for Viscount Castlereagh in respect of mineral leases granted in 1866 and 1868 to the Viscount’s father, the Marquis of Londonderry (then Lord Vane) on and off the coasts of County Durham. The leases extended under the sea to a distance of two miles below low-water mark. The firm thought that dicta in Keyn, particularly by Cockburn CJ in belittling the significance of the Cornwall Submarine Mines Act 1858 (UK) for general Crown seabed ownership,[17] might throw doubt on the validity of its client’s leases. In a letter of 8 June 1877 it wrote to the Office of Woods, Forests and Land Revenues, which managed the Crown estate including its seabed claims, asking that if necessary ‘Parliamentary protection and security’ should be obtained for the leases.[18] Within that Office, its solicitor, T W Gorst, wrote a minute dated 31 July 1877 in which he remarked, ‘I do not find that the Chief Justice has laid it down as law either that the belt is not British Territory, or that minerals below low water mark do not belong to the Crown.’
After the withdrawal of a private members’ Bill that would have ‘declared’ that the three-mile belt ‘constitute part of Her Majesty’s dominions’,[19] the Government in February 1878 introduced the Bill that became the 1878 Act.[20] Although no written instructions from the Lord Chancellor to the draftsman, Henry Thring, have been found, Thring, in observations on his final draft of the bill, dated 13 June 1877, took a concise view of its purpose:
The object of this Bill is to provide that any offence committed by a foreigner on or by means of a foreign ship on waters adjacent to the coasts of Her Majesty’s dominions, shall be triable in a British court having Admiralty jurisdiction.[21]
Likewise, in presenting the Bill for its first reading in the House of Lords in February 1878, the Lord Chancellor, having stated that in his opinion the ‘common ground’ of the majority in Keyn was that the Central Criminal Court had no jurisdiction over the persons of foreigners beyond the low-water mark, continued, ‘[a]nd, taking that as the ratio decidendi of the Judges in a decision which he accepted, it would at first sight appear that there was nothing more for him to do than to ask the favourable consideration of their Lordships for a Bill to amend the law’.[22] It should be noted that whereas Thring had drafted the extension of the Admiral’s jurisdiction to include both indictable and summary offences under the law of England, the Lord Chancellor’s Bill removed the inclusion of summary offences.[23]
Each of the four propositions set out in Section I above will now be revisited to see whether it was proposed to ‘reverse’ them by the legislation.
The Colonial Office soon expressed a firm view against the validity of any such proposition. Writing to the Foreign Office on 14 February 1877 about a draft Order in Council for the Western Pacific, it observed, ‘It seems to be the established rule in English law that legislative power exercisable on land is exercised for a distance of three miles out to sea, and there is apparently nothing in the decision in the Franconia Case to shake this rule.’[24] Writing to the Secretary of the State for Colonies on 3 May 1877 with regard to the same matter, Lord Cairns LC stated, ‘I do not concur with the opinion of the majority of the Judges in the Franconia Case, and, whether that opinion be right or wrong, I have no doubt that there is legislative power for the purpose of repressing criminal acts within the three mile limit round the coasts.’[25]
The first preambular recital to Thring’s drafts reflected the same certainty in respect of executive power. It read, ‘Whereas by the law of nations the rightful jurisdiction of Her Majesty, her heirs and successors, extends and has always been held to extend over the open seas adjacent to the coasts of Her Majesty’s dominions to such a distance as is necessary for the defence and security of such dominions…’ In a memorandum dated 13 June 1877, Thring observed: ‘I think that the first paragraph of the preamble should be omitted, as I do not find that the proposition therein stated was really doubted in the Franconia Case.’[26 ] Those responsible in the government for promoting the Bill, however, considered that it was expedient for the recital to be retained, while deleting Thring’s reference to ‘the law of nations’. Its retention — and its declaratory form — is consistent with the effort made by the Lord Chancellor in introducing the Bill to scotch the possibility that legislative and executive power was to some extent less than plenary once the low-water mark was passed.
In the light of the Colonial Office’s opinion already quoted, expressed to the Governor of the Bahamas, that Keyn had a limited effect, it was foreseeable that legislation was not considered necessary or expedient to enact, or even merely to declare, that colonial courts were not confined in their jurisdiction by the low-water mark facing the open sea. Just what was the maritime jurisdiction of colonial courts at this time will be considered in Section IV below.
The travaux préparatoires nowhere suggest that the government thought it necessary or expedient to enact or even to declare that the realm of England extended below low-water mark on the open coast. The conclusion is that wherever lay the post-Keyn seaward limits of the realm of England there they were to remain.
In a debate on the private members’ bill, the Attorney-General, Sir John Holker, did not consider that Keyn had gone so far as to decide that British territory stopped at the low-water mark. Indeed, Holker went on to say of Keyn that ‘the great bulk of the Judges who decided it were of opinion that the belt of ocean to which he had referred was the territory of the State whose shores it adjoined’ and that Cockburn CJ, Baron Pollock, Lush and Field JJ, as well as the judges in the minority, ‘thought that the belt of water was British territory.’[27]
It is now necessary to return to the history of the letter from Few & Co. to the Office of Woods. Matters slumbered until the government Bill began its Parliamentary course in February 1878. The Bill in its first preamble described the territorial waters as being ‘adjacent to the coasts of Her Majesty’s dominions…’ On 2 March 1878, the Office’s solicitor, T W Gorst, considered that these words did not imply that the bed of the sea was outside Her Majesty’s dominions.[28] Nevertheless, the Office decided to ask the Law Officers of the Crown to advise on the implications of the above wording and, belatedly, that they should also examine the concerns of Few & Co. A case was stated to the Law Officers on 9 March 1878[29] accompanied by schedules tabulating the Crown’s practice in the United Kingdom and Isle of Man in granting and leasing areas of the marginal seabed and subsoil for constructions and submarine mines.[30] A few days later, Gorst became alarmed when the House of Lords, in amending at the Report stage the Bill’s definition of ‘the jurisdiction of the Admiral’ in order to add a provision to cover the power of arrest, included in the amendment the phrase ‘the territorial waters adjacent to the United Kingdom, or any other part of Her Majesty’s dominions’.[31 ]Gorst considered that this phrase ‘would seem to imply that the bed of the sea adjacent to the sea coasts is not within the United Kingdom’.[32] He brought the above wording to the attention of the Law Officers who had not yet replied to the earlier case stated to them. The Law Officers, Sir John Holker AG and Sir Hardinge Giffard SG, who had been in office throughout the Keyn Case, signed their opinion on 16 March 1878.[33] They advised the Office that they did not think that ‘any doubt really exists as to the Crown’s title to the bed and sea adjacent to the Sea Coasts of the Queen’s Dominions and to the minerals therein’. They went on to advise that the preamble did not prejudice this position and that no further steps need be taken. It is to be noted that the Law Officers did not expressly answer the question whether the above phrase in the amendment implied that the seabed was outside the United Kingdom.
Another amendment, small but significant, was made between the printing of the Bill on 14 February 1878 for first reading in the House of Lords and its reprinting on 8 March 1878 after the Committee stage. Thring’s drafts had included in the main enacting section, clause 2, the words ‘the territorial limits of Her Majesty’s dominions’ and in his final clause he defined this term (now reformulated as ‘the territorial limits of the dominions of Her Majesty’) to mean such part of the sea adjacent to the coasts of the United Kingdom or some other part of Her Majesty’s dominions ‘as is deemed by international law to be within the territorial sovereignty of Her Majesty’. When the Bill was introduced by the Lord Chancellor in February 1878, Thring’s phrase ‘the territorial limits of Her Majesty’s dominions’ was replaced in clause 2 and in the definition clause by the phrases ‘the territorial waters of Her Majesty’s dominions’ and ‘the territorial waters of the dominions of Her Majesty’ respectively. Yet the marginal note to the definition still read, ‘Territorial limits of the dominions of Her Majesty’. However, when the Bill emerged from the Committee stage in March 1878 the marginal note had been changed to read ‘Territorial waters of Her Majesty’s dominions’.[34]
The Act received the Royal Assent on 16 August 1878. Its long title reads:
An Act to regulate the Law relating to the Trial of Offences committed on the Sea within a certain distance of the coasts of Her Majesty’s Dominions.
Its first preambular recital reads:
Whereas the rightful jurisdiction of Her Majesty … extends and has always extended over the open seas adjacent to the coasts of the United Kingdom and of all other parts of Her Majesty’s dominions to such a distance as is necessary for the defence and security of the realm…
Section 2, the principal enacting section, reads:
An offence committed by a person, whether he is or not a subject of Her Majesty, on the open sea 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 committed such offence may be arrested, tried and punished accordingly.
Section 3 provides that proceedings for the trial and punishment of a person who is not a subject of Her Majesty for an offence declared by the Act to be within the jurisdiction of the Admiral requires the consent and certificate of one of Her Majesty’s Principal Secretaries of State in the United Kingdom, and the leave and certificate of the Governor in any dominion of Her Majesty out of the United Kingdom.
After further procedural and saving provisions, the Act ends with section 7 that defines certain expressions used in the Act ‘unless there is something inconsistent in the context’. Two of these definitions should be set out in full as they have been the subject of much subsequent discussion. They read as follows:
‘The territorial waters of Her Majesty’s dominions’, in reference to the sea, means such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty’s dominions, as is deemed by international law to be within the territorial sovereignty of Her Majesty; and for the purpose of any offence declared by this Act to be within the jurisdiction of the Admiral, any part of the open sea within one marine league of the coast measured from low-water mark shall be deemed to be open sea within the territorial waters of Her Majesty’s dominions.[35] ‘Offence’ as used in this Act means an act, neglect, or default of such a description as would, if committed within the body of a county in England, be punishable on indictment according to the law of England for the time being in force.
Part of the definition of ‘the jurisdiction of the Admiral’, should also be set out. The part in question reads:
the territorial waters adjacent to the United Kingdom, or any other part of Her Majesty’s dominions, shall be deemed to be within the jurisdiction of any judge, magistrate…
Without doubt, the Act expanded the criminal jurisdiction of the Admiral to the extent enacted by section 2 as read with the definitions in section 7. In so expanding the Admiral’s jurisdiction, however, the 1878 Act was not without its difficulties of construction and interpretation prior to its amendment in 1987. One potential difficulty was pointed out by the Duke of Somerset during the first reading of the Bill in the House of Lords. He asked ‘whether the Bill would touch the question whether in the case of bays, the three-mile limit would be measured from the shore, or from a line drawn from one headland to the other headland’.[36 ] The Lord Chancellor unhelpfully replied that ‘the measure in no way touched the question relating to the measurement of distances’.[37] In the definition in section 7, ‘the territorial waters of Her Majesty’s dominions’ are measured from the low-water mark and thus embrace not only what would now be termed territorial sea but also internal waters, for example, bays and ports. But the area over which the extension of the Admiral’s jurisdiction was applied by section 2 was defined more restrictively in section 7 as ‘any part of the open sea within one marine league of the coast measured from low-water mark’. Thus the definitions did not effectively cover the situation of a bay within the body of the county. A foreign ship within the bay would presumably not be on the ‘open sea’ and thus would be outside the purview of the Act, although it would remain within the ordinary jurisdiction of the local courts. But a foreign ship within a marine league seaward of the closing line of the bay but more than a marine league from the nearest low-water mark on the coast would not only be outside the ordinary jurisdiction of the local courts but would not come within the Act’s extension of the Admiral’s jurisdiction.
The repeal by the Territorial Sea Act 1987 (UK) of the second part of the definition of ‘the territorial waters of Her Majesty’s dominions’, as indicated by the words italicised in Section III above, has removed the problem for the United Kingdom. By virtue of the 1987 Act the United Kingdom now has a territorial sea of 12 nautical miles measured from a baseline that comprises not only the low-water mark but also, where appropriate, straight closing lines.[38] Since contemporary international law will readily ‘deem’ that the 12-mile belt is rightly within the territorial sovereignty of Her Majesty,[39] the belt will thus fall within the scope of the 1878 Act as amended.
The nature and extent of colonial legislative and curial jurisdiction over crimes at sea in 1878 will be briefly examined.[40]
Colonial courts administered two quite different types of maritime criminal jurisdiction. First, the Admiralty Offences (Colonial) Act 1849 provided that any person within a colony charged with any offence within the jurisdiction of the Admiral could be tried in the same manner as if he had committed the offence within the limits of the colony. The punishment under the 1849 Act was that provided by the law of England but Imperial legislation later changed this to that provided by the local law.[41] The substantive law, however, remained that of England since, as the Judicial Committee of the Privy Council stated, ‘it has always been the criminal law of England that was applied to persons on British ships within the jurisdiction of the Admiralty.’[42] On its narrow ratio decidendi, Keyn determined that the Admiral’s criminal jurisdiction in 1876 did not apply — piracy apart — to conduct on board foreign ships on the high seas. This was so whether the case was brought in an English or a colonial court. Indeed, only a few days after the enactment of the 1849 Act, the Law Officers of the Crown had so advised in respect of a crime on board a foreign ship at sea brought for trial before the Admiralty Sessions in Jamaica.[43]
Second, the colonial legislatures themselves were considered capable of promulgating criminal enactments taking effect on board British or foreign vessels in the adjacent sea and triable in the local courts under their non-Admiralty jurisdiction. By a circular dated 16 December 1842 sent to all Governors, the Colonial Office had announced that it would not object to colonial laws indispensable for the welfare of the colony that were confined to a range not exceeding one league from the shore.[44] Seaboard colonies enacted a quantity of such legislation including the creation of crimes within the marine league.[45] The English law of the Admiral’s jurisdiction thus co-existed within the league with the local law, both being exercisable by the local courts under different ‘hats’. After the 1878 Act had enlarged the jurisdiction of the Admiral to cover conduct on board foreign ships in the marine league — though limited by the definition of ‘offence’ in section 7 to crimes indictable in England, and requiring by section 3 a special procedure for commencing such proceedings — the stage was set for conflict between the Imperial Act and a local law. In such a conflict the Imperial Act would prevail by virtue of the doctrine of repugnancy embodied in section 2 of the Colonial Laws Validity Act 1865, an Imperial Act. This read:
Any Colonial Law which is or shall be in any respect repugnant to the Provisions of any Act of Parliament extending to the Colony to which such Law may relate, or repugnant to any Order or Regulation made under Authority of such Act of Parliament, or having in the Colony the force and effect of such Act, shall be read subject to such Act, Order, or Regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.
The first colony where the relevance of the 1878 Act had to be considered was Queensland. As mentioned above, the Governor sent to the Colonial Office the comments of Samuel Griffith in the local legislature about the effects of Keyn. Within the Colonial Office, the Assistant Under-Secretary of State, John Bramston, who himself had once been Attorney-General of Queensland, having referred to section 2 of the 1878 Act and to the definition of ‘territorial waters’ in section 7, minuted: ‘It is clear that they do not know of the Act in Queensland — and the proper answer will be to send it out as showing that the Colony would have jurisdiction over three miles from the coast.’[46] A copy of the 1878 Act was sent to the Governor on 15 October 1879 drawing his attention in particular to the definition of ‘territorial waters of Her Majesty’s dominions’.[47] In reply on 24 January 1880, the Governor mentioned that his Attorney-General considered that the Act with its limitation to the marine league did not meet the more extensive requirements of the Queensland government.[48]
Another difficulty later arose in Newfoundland where it was desired to establish a court by local legislation to enforce fisheries treaties with France and consequently to provide for criminal jurisdiction over conduct on board French fishing vessels. The Colonial Office consulted the Parliamentary Counsel, now Henry Jenkyns, who prepared the draft of a suggested Imperial bill that would ‘declare’ that, notwithstanding the 1878 Act, the legislature of a British possession had full power to make laws over the territorial waters. In sending the papers to the Law Officers of the Crown, the Colonial Office mentioned the Colonial Laws Validity Act 1865 and continued:
it was therefore apprehended that it was competent to a Colony to pass a law declaring that any specific act occurring on board a ship, whether British or foreign, within the Colonial territorial waters, was an offence against the law of the Colony, and punishable accordingly, provided that such law were not repugnant to any Act of Parliament extending to the Colony.[49]
The Law Officers, Webster AG and Clarke SG, reported on 2 July 1891:
[I]t is not competent to the Newfoundland Legislature to pass an Act under which offences within the provisions of the Imperial Act of 1878 may be tried without the consent of the Governor or in a summary manner, as such an Act would be inconsistent with the provisions of the Imperial Statute.[50]
The Law Officers also advised, however, that it was competent for the Newfoundland legislature to provide for the arrest and trial, by summary process, of those committing breaches of regulations contained in local statutes concerning the fishery, whether on board a British or a foreign vessel. In the event, Jenkyns’ draft bill was not proceeded with although the local legislature enacted a measure — an Act respecting Foreign Fishing Vessels 1893 — to deal with the matter.
More than a century after its enactment, the 1878 Act was analysed by Slade J in Earl of Lonsdale v Attorney General. He concluded: ‘The 1878 Act in my judgment thus provides a clear indication that, while Parliament, in enacting it, regarded territorial waters of the United Kingdom as being within the territorial sovereignty of the Crown, it did not regard them as being actually part of the United Kingdom in a geographical sense.’[51 ]It is not certain whether the judge meant that the territorial waters were also outside the United Kingdom in a legal as contrasted with a geographical sense. In fact, United Kingdom legislation, by almost invariably describing the ‘territorial waters’ or the ‘territorial sea’ as being ‘adjacent to’ and not ‘in’ the United Kingdom or one of its constituent parts, would support such a view.[52]
Slade J did not remark upon the discordant wording in the definition section. As mentioned already, that part of the definition of ‘the jurisdiction of the Admiral’ in section 7 that relates to the power of arrest contains the phrase ‘the territorial waters adjacent to the United Kingdom, or any other part of Her Majesty’s dominions’. Since in the normal use of language that which is adjacent cannot lie within that to which it is adjacent, the words imply that the territorial waters are not regarded as lying ‘in’ the United Kingdom or ‘in’ the other British territories. Later in section 7, however, the definition of ‘the territorial waters of Her Majesty’s dominions’ employs the phrase ‘the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty’s dominions’, a formula that leaves the point open. There is a mystery here. That part of the definition of the jurisdiction of the Admiral that refers to the power of arrest was added during the Report stage in the House of Lords in March 1878. As mentioned above, the addition was brought immediately to the attention of the Law Officers of the Crown by the Office of Woods, but the surviving papers do not show unequivocally that they considered it. As the Act stands, and in the absence of any explanation for the discordant wording, the earlier phrase in section 7 must lend some support to the argument that the territorial waters are considered to lie outside the United Kingdom and other British territories. Other than this phrase, the Act appears on its face to be neutral on the question whether or not the marine league is within the boundaries of the realm of England
and, by analogy, within the boundaries of British territories.
Speaking in the House of Commons in April 1877 on the private members’ Bill, the Attorney-General, Sir John Holker, agreed that its main promoter, John Gorst, QC, MP, had established both his two main propositions. These, in Holker’s words, were:
first, that a certain belt or zone of water round the coast was territorial water and formed part of Her Majesty’s dominions; and, secondly, that that belt or zone of water, being part of the territory of Her Majesty, Parliament had a right, by legislation, to give the Courts of the country jurisdiction over it.[53]
Nearly a century later, in Pianka and Hylton v R on appeal from Jamaica, Lord Wilberforce, for a majority of the Judicial Committee of the Privy Council, set out Holker’s summary of Gorst’s two propositions ‘[a]s indicative of the opinion of the Executive on the position in international law’ after Keyn.[54] He went on to remark: ‘This was, in effect, combining the majority acceptance of the need for Parliamentary legislation, and of the legitimacy of such legislation, with the minority position as to the territorial waters being part of Her Majesty’s dominions.’ He added: ‘The [1878] Act, as passed, was in conformity with this statement.’[55]
A plausible argument can be made, indeed, that the 1878 Act was not neutral towards the seaward boundary of British territory as distinct from whether such territory was within the boundaries of England or of the Crown’s overseas territories. The definition of ‘the territorial waters of Her Majesty’s dominions’ in section 7 contains the words ‘such part of the sea … as is deemed by international law to be within the territorial sovereignty of Her Majesty’; until its repeal by the Territorial Sea Act 1987 (UK) the second part of the definition went on to ‘deem’ the marine league to be open sea within the territorial waters of Her Majesty’s dominions. Thus the marine league was ‘deemed’ to be within Her Majesty’s territorial sovereignty. This might be regarded as legislative confirmation that in 1878 the marine league was already British territory not merely as a matter of international law but as a matter of English law. Under its foreign affairs prerogative, the Crown may claim sovereignty over areas hitherto unclaimed and thereby constitute such areas as its territory.[56 ] It is significant that Attorney-General Holker’s summary set out above described the territorial sea as ‘part of the territory of the Crown’.[57] In fact, one does not have to wait until Pianka to find judicial support for such a view. In Jones v Bennett in 1890, Lord Coleridge CJ, a dissenter in Keyn but who in Harris six weeks later had accepted a wide ratio decidendi for it, stated of the 1878 Act:
A declaratory Act means to declare the law, or to declare that which has always been the law, and there having been doubts which have arisen Parliament declares what the law is, and enacts that it shall continue what it then is … In this very matter most of the Profession, I daresay, are aware that a great conflict of opinion existed as to the distance to which the territory of the Queen extended beyond the low-water mark. I was one of those who thought that it extended a marine league out to sea; the majority — but a majority of one — were of a different opinion. But when Parliament came to declare, when it came to enact upon the matter, it declared and enacted — and declared adversely to the opinion of the majority, that that had always been the law of the country, that the marine league was the limit.[58]
The judge did not expressly state that the realm of England extended to the marine league, but rather that ‘the territory of the Queen’ to a marine league had been confirmed.
There are, however, strong arguments to the effect that the 1878 Act should be given a restricted interpretation consistent with the limited way in which it expanded the Admiral’s criminal jurisdiction.[59] First, the words ‘the rightful jurisdiction of Her Majesty’ that appear in the first preambular recital, while implying the presence of legislative and executive powers, do not necessarily imply sovereignty let alone proprietary rights. Thus the recital does not amount to a declaration that such seas were already in 1878 within the realm of England or within British territory beyond the realm. A preambular recital, moreover, does not have the force of an enactment bringing such seas within the realm of England or within British territory beyond the realm if they had previously been outside them. The recital, therefore, appears neutral towards the post-Keyn location of the seaward boundaries of both the realm of England and British territories beyond such realm. Turning to the definition section, it might be argued that the words ‘territorial sovereignty’ in the definition of territorial waters are included solely for the purposes of the Act and have no general significance outside its purview. Such an argument is supported by the use on two occasions of the word ‘deemed’ in this same definition; the first use of which might merely be a synonym for ‘declared’ but the second use would rather suggest that the marine league is not regarded as being within Her Majesty’s dominions but by a fiction is considered so to be for the purposes of the Act alone. Fictions are not unknown in the 1878 Act: the immediately preceding definition — that of the ‘United Kingdom’ — contains an obvious fiction since it places the Isle of Man and the Channel Islands within the United Kingdom, without so much as the fig-leaf of ‘deeming’.
Another argument against the Holker/Wilberforce view came from Mason J (as he then was), who in his majority judgment in New South Wales v Commonwealth , observed:
The [1878 Act] did not reverse the principle according to which Keyn’s case was decided. The Act did not alter the seaward limits of British territory. It assumed the correctness of that decision … The assertion of jurisdiction in the preamble to the statute ‘over the open seas adjacent to the coasts of the United Kingdom and of all other parts of Her Majesty’s dominions to such a distance as is necessary for the defence and security of such dominions’ was a declaration of jurisdiction, not a declaration that the adjacent seas formed part of British territory.[60]
Although ‘jurisdiction’ does not necessarily imply ‘territory’ or even ‘sovereignty’, the 1878 Act did not assume that Keyn had determined that British territory stopped at the low-water mark, let alone accept that such a determination would have been correct. The Act’s travaux préparatoires indicate that its framers proceeded on the opposite assumption.
There is no longer any doubt that the Crown’s territorial sovereignty extends to the limit of the territorial sea, now 12 nautical miles, [61] while the repeal by the Territorial Sea Act 1987 (UK) of the second part of the definition of ‘the territorial waters of Her Majesty’s dominions’[62] has removed the above problem of interpretation.
In the federal offshore disputes in Canada and Australia, the most significant feature of the 1878 Act was said to be its provision that the law of England and not colonial law is the substantive law for Admiralty offences on board foreign ships within a marine league of the colonial coasts. The distinguished jurist Sir John Salmond, then the Solicitor-General of New Zealand, writing in 1918 considered that this provision necessarily implied that the marine league was not within the boundaries of the colonies. He analysed the 1878 Act in detail and concluded that it had neither made the three-mile belt part of the United Kingdom or any British dependency nor determined or altered the limits of British territory. He then continued: ‘Indeed, it is to be particularly noticed that the Territorial Waters Jurisdiction Act, so far from recognising the marginal waters of the Empire as included within the adjacent territories, would seem to be inconsistent with the supposition that they are so included.’[63] Referring to the definition of ‘offence’ in section 7 of the Act, Salmond explained:
The fact that the law so made applicable by the statute is the law of England and not the law of the adjacent colony seems to show that the Act, so far from adding to the colony a belt of maritime territory, has expressly recognized that the true limit of the colony is low-water mark, and that the marginal waters beyond that limit are not within the colony, but are merely subject to a special statutory criminal jurisdiction, similar to that which is possessed over offences committed on board British ships upon the high seas. These offences are in like manner triable in the Colonies, but the law applicable is the law of England.[64]
This same argument, without attribution to Salmond, was used by the Supreme Court of Canada in 1967. The question referred to the Court asked inter alia whether ‘the lands, including the mineral and other natural resources, of the sea bed and subsoil seaward from the ordinary low-water mark … to the outer limit of the territorial sea of Canada’ were ‘the property of Canada or British Columbia’. The Court considered that the 1878 Act, and in particular the definition of ‘offence’ in section 7, was strong evidence that British Columbia as a British colony, and later as a Province of Canada, did not include the bed of the adjacent three-mile belt of territorial sea. It stated:
If the territory of British Columbia had extended one marine league from low-water mark, the offence would have occurred within Canada and Canadian criminal law ought to have been applicable, but by the express terms of the Territorial Waters Jurisdiction Act it was the law of England that applied. The legislation is inconsistent with any theory that in 1878 the Province of British Columbia possessed as part of its territory the solum of the territorial sea.[65]
Two years later, in Australia, there were statements of high authority agreeing with the Supreme Court’s reasoning. In May 1969, Sir Percy Spender, formerly President of the International Court of Justice, endorsed it in an article.[66] In Bonser v La Macchia in the High Court of Australia in August 1969, Barwick CJ cited the definition of ‘offence’ in section 7 of the Act and concluded:
The territorial waters described were thus the territorial waters of the Imperial Crown and quite clearly, in my opinion, not territorial waters of non-independent and non-sovereign colonies of the Crown. Jurisdiction in and over them was never transferred or vested in the colonial government.[67]
In the same case, Windeyer J, having referred to the Supreme Court’s view above, observed, ‘I respectfully agree and apply the reasoning of that case to the Australian colonies.’[68] He went on to quote with approval Salmond’s conclusion on the point.
In two later cases in the High Court of Australia, Barwick CJ again regarded the 1878 Act as supporting a concept of Imperial territorial sea adjacent to the colonial coasts. In Bull, a drugs importation case, he stated:
It is, to my mind, abundantly clear that the Imperial Parliament throughout considered the waters within a marine league of the coasts of the colonies of the Empire as Imperial territorial waters and to be, so far as concerned the trial and punishment of offenders, within the jurisdiction of the Admiral. Such offences are properly described as extra-territorial offences. The very terms of the Territorial Waters Jurisdiction Act 1878 (Imp.) make those conclusions abundantly clear.[69]
A year later, in New South Wales v Commonwealth, he remarked:
it would be quite proper in the days of the British Empire to regard the Imperial territorial seas as including the portion of the high seas which washed the shores of Imperial colonial territories. It was in that sense that the Territorial Waters Jurisdiction Act (Imp.) 1878 was conceived and enacted.[70]
Meanwhile, the Court of Appeal of British Columbia had to consider a question referred to it that concerned proprietary rights in the bed and subsoil of the enclosed waters off the eastern and southern coasts of Vancouver Island. The question asked whether ‘the lands … including the mineral and other natural resources of the seabed and subsoil [are] the property of the Queen in right of the Province of British Columbia’. The majority answered the question in the affirmative without mention of the 1878 Act but one of the dissenting judges, McIntyre J, stated:
It is clear that the concept of proprietorship is distinct from that of jurisdiction. However, the retention of jurisdiction in the admiral, and the continued application of the common law of England in these waters by operation of the Territorial Waters Jurisdiction Act is inconsistent with the concept of British Columbia ownership in 1871.[71]
He added later, ‘it has already been noted that under the provisions of the Territorial Waters Jurisdiction Act 1878 , British Columbia law was long excluded from these waters in favour of the common law of England.’[72]
Nine years later, in dismissing Canada’s appeal to the Supreme Court of Canada, Dickson J, for the majority, extensively discussed the effect of the 1878 Act.[73] His reasoning will be mentioned below. Wilson J, for the minority, quoted with implicit approval the passage from the Supreme Court’s 1967 decision set out above.[74]
The 1878 Act was not discussed in the later decisions in Canada on references concerning the submerged lands adjacent to the coasts of the Province of Newfoundland and Labrador, either by the Court of Appeal of Newfoundland[75] or, in different proceedings, by the Supreme Court of Canada.[76] The reasons might have been that in the former the critical date of 31 March 1949 and Newfoundland’s particular constitutional development before that date made consideration of the colonial position at an earlier period irrelevant, and in the latter because the question was confined to the legal status of the continental shelf beyond the territorial sea.
Salmond’s argument has not gone judicially unopposed. In his dissenting judgment in New South Wales v Commonwealth, Stephen J, having referred to the 1967 judgment of the Supreme Court of Canada, said that ‘the terms of the Act appear to me to cast no light upon the question of the ownership of league seas; it is but an instance of the effective exercise of Imperial legislative power’.[77] Fuller criticism, however, came from Dickson J in giving the majority judgment of the Supreme Court of Canada in the Georgia Strait Reference. He considered that it was only in waters where the Admiral had exclusive jurisdiction that such waters could be said to be outside colonial boundaries. He remarked, ‘[The 1878 Act] cannot determine the status of the waters in question; rather the status of the waters in question would have to be determined in order to decide whether or not the Act applied.’[78] Pointing out that Admiralty jurisdiction over certain maritime crimes was also exercised concurrently with that of the common law courts in ports, fresh waters and rivers below first bridges, he stated: ‘Concurrent Admiralty jurisdiction … would not be inconsistent with the conclusion that the waters over which it was exercised were “within the realm” and hence within the boundaries of a given county, colony or province.’[79]
Salmond’s argument is defective. The substantive criminal law of the Admiral over British ships is the law of England and remains so whether the British ship is on the open sea or on a foreign river[80] or in a colonial port.[81] So when the 1878 Act enlarged the Admiral’s jurisdiction to cover conduct on board a foreign ship on the ‘open sea’ within the marine league of colonial coasts, it followed that it was the criminal law of England, though restricted by the Act to indictable offences, that applied to the enlargement. But the fact that a British ship in a colonial port is within the Admiral’s criminal jurisdiction demonstrates that the criminal law of England may apply in waters undoubtedly within colonial boundaries. The waters within the Admiral’s jurisdiction and the waters within colonial boundaries are thus not mutually exclusive. Moreover, a practical reason exists why it is the law of England, and not the law of the particular colony, that applies, since in many circumstances it might be expedient to take the accused for trial to England — as happened in Molyneux: or to another colony. A uniform law was therefore desirable and English law provided it.
Furthermore, the reason why the 1878 Act might usurp colonial law from a foreign ship within the marine belt in favour of the law of Englans is not because this belt is necessarily outside colonial boundaries. It is because an Imperial Act prevails over a colonial enactment to the extent of a conflict between them, as stated in the Colonial Laws Validity Act 1865 . Where there is no conflict, as where the conduct constitutes a summary offence under the law of England, then conduct on board a foreign ship within the belt is not within the purview of the 1878 Act and might be subject to the appropriate colonial law — if there is one — and triable in a colonial court under its non-Admiralty jurisdiction.
There is a concluding ground for criticising the significance given to the 1878 Act in the federal offshore disputes. These disputes have related primarily to the existence and attribution of proprietary rights in the submerged lands rather than legislative competence over ships on the superjacent waters. Although the Lord High Admiral both at common law and by statute has powers of conservancy at sea there is no evidence that he ever had power to exercise the proprietary rights that the Crown has or at least claims to have in the bed and subsoil of tidal waters. Henry Thring, 19 years before he was called upon to draft the Territorial Waters Jurisdiction Bill, was asked to draw up a bill to codify the law of civil jurisdiction. In his memorandum dated 28 October 1859, he pointed out that the right of conservancy was possessed by the Lord High Admiral whereas the right of property in the soil of the sea and sea shore was vested in the Office of Woods, Forests and Land Revenues. Thring proposed to combine the exercise of these rights by including in the draft bill a clause that ran, ‘Subject to the Reservation of private Rights hereinafter mentioned, the Lords of the Admiralty shall, for the Purposes of any Actions, Suits, or other Legal Proceedings instituted or defended by them in pursuance of this Act, be deemed to be the Owners of the Soil of the Sea Coast, adjacent Seas, ports, harbours, and navigable Rivers of the United Kingdom.’[82 ]The draft bill was never introduced into Parliament. Thus proprietorship in submerged lands was considered to be a concept outside the Admiral’s civil jurisdiction. There is no evidence for considering that it fell within his criminal jurisdiction either. The 1878 Act, therefore, is not relevant to questions concerning the existence, location and attribution of proprietary rights in submerged lands. As Stephen J observed in his dissenting opinion in New South Wales v Commonwealth ,[83] ‘The Act is, like Keyn’s Case, concerned only with matters of curial power…’
Apart from filling the gap that Keyn revealed in the Admiral’s criminal jurisdiction in respect of conduct by foreigners on board foreign ships on the ‘high seas’ — but only to the distance of a marine league of ‘open sea’ and only for offences indictable in the law of England — the Territorial Waters Jurisdiction Act 1878 did not directly make any other change in English law. As a matter of strict judicial precedent, Keyn is not authority for those propositions for which it has been relied on in the federal offshore disputes, namely that at common law the low-water mark facing the open sea is the seaward boundary of the realm of England, of British possessions overseas, and of British territory generally. At best, those propositions were supported only by powerful dicta by some of the majority judges, against which might be balanced powerful dicta to a contrary effect by some of the minority judges. Consequently there was no question of the Act’s ‘reversing’ Keyn in those respects. The Act’s application of the law of England to Admiralty offences on board foreign ships within a belt of sea off colonial coasts has no determinative or even evidentiary relevance to the proper location of the colonial seaward boundaries. To this extent, the Act has been given an erroneous significance.
CASES
Anderson (1868) LR 1 CCR 161 19
Blackpool Pier Co Ltd & North Blackpool Jetty Co Ltd v Fylde Union Assessment Committee (1877) 41 JP 344 4
Bonser v La Macchia [1969] HCA 31; (1969) 122 CLR 177 17
Bull [1974] HCA 23; (1974) 131 CLR 203 17
Carr v Fracis Times & Co [1902] AC 176 14
Earl of Lonsdale v Attorney General [1982] 1 WLR 887 12
Harris v Owners of the ‘Franconia’ (1877) 2 CPD 173 4
Jones v Bennett (1890) 63 LTNS 705 14
New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 4, 15, 17, 18, 20
Oteri v R [1976] 1 WLR 1272 10
Pianka and Hylton v R [1979] AC 107 13, 14
Post Office v Estuary Radio Ltd [1968] 2 QB 740 14
R v Kent Justices; Ex parte Lye [1967] 2 QB 153 15
R v Keyn (1876) LR 2 Ex D 63 1, 2, 3, 4, 5, 6, 7, 10, 11, 14, 15, 20
R v Liverpool Justices; Ex parte Molyneux [1972] 2 QB 384 19
R v Oteri and Oteri [1975] WAR 120 10
Reference Concerning Ownership of and Jurisdiction over Offshore Mineral Rights [1966] INSC 207; [1967] SCR 792 17
Reference Concerning the Ownership of the Bed of the Strait of Georgia and Related Areas (1976) 1 BCLR 97 18
Reference re Mineral and other Natural Resources of the Continental Shelf (1983) 145 DLR 3d 9 18
STATUTES
Admiralty Offences (Colonial) Act 1849 (UK) 10
Colonial Laws Validity Act 1865 (UK) 11, 12, 19
Territorial Sea Act 1987 (UK) 9, 10, 14, 16
Territorial Waters Jurisdiction Act 1878 (UK) 1, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20
OTHER AUTHORITIES
Convention on the Law of the Sea 1982 11
[*] Fellow of Sidney Sussex College, Cambridge.
[1] UK, Parliamentary Debates, 3rd series, vol 238, col 952 (House of Lords, 8 March 1878).
[3] For a concise historical account of the nature and scope of the Admiral’s criminal jurisdiction, see W Holdsworth, A History of English Law (A L Goodhart and H G Hanbury eds, 7th ed, 1956) vol I, 545–6, 550–2.
[5] For a discussion of how the ratio decidendi of a multi-judge court might be ascertained, see R Cross and J W Harris, Precedent in English Law (1991) 84–93.
[6] No copies of Thring’s drafts have been found in the open archives of any of the Departments of State but his relevant printed papers have been consulted in the closed records of the Office of Parliamentary Counsel. The author recalls his indebtedness to the late Sir Henry Rowe, when First Parliamentary Counsel, in permitting him to examine these papers.
[7] UK, Parliamentary Debates, 3rd series, vol 237, cols 1605–6 (House of Lords, 14 February 1878).
[8] CO 137/485, folios 534–5 [CO paper 1919 of 1877]. References in this article to archival documents in Colonial Office (CO), Foreign Office (FO), Ministry of Transport (MT), Crown Estate Office (CRES) and Home Office (HO) classes are to Crown copyright documents preserved in the Public Record Office, London.
[9] HO 45/9402/53058A. Thring’s papers give no indication that he was made aware of Wright’s letter.
[10] CO 23/217, folios 451–2 [CO paper 12357 of 1877].
[11] Ibid folio 452.
[12] Queensland, Parliamentary Debates, 14 July 1879; CO 234/39, folio 193 [CO paper 14983 of 1879]. The earlier advice had been given by the Law Officers of the Crown (Baggallay AG and Holker SG) on 25 March 1875 to the effect that Queensland ‘has no legislative authority over the seas beyond the distance of three marine miles from the low water mark on the Mainland and Islands respectively’: CO 234/35, folio 759 [CO paper 3318 of 1875].
[13] In New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337, 462, Mason J attributed this proposition to Bramwell JA as well as to the other majority judges, but there is no mention of it in Bramwell JA’s judgment.
[14] (1877) 2 CPD 173, 177.
[15] Ibid 178.
[17] (1876) LR 2 Ex D 63, 199–202.
[18] CRES 37/336 [file 20922]. For a fuller account, see G Marston, The Marginal Seabed: United Kingdom Legal Practice (1981) 142–4.
[19] House of Commons Sessional Papers, 1877 (Bill 10), vol vii, 9.
[20] House of Lords Sessional Papers, 1878 (Bill 23), vol vi, 221.
[21] Thring papers, above n 6.
[22] UK, Parliamentary Debates, above n 7, col 1605.
[23] In notes on his draft bill, Thring considered that there was ‘great doubt’ as to what offences were within the Admiral’s jurisdiction in the absence of express enactment and that ‘[p]robably the words “punishable on summary execution” ought to be omitted’ Thring papers, above n 6.
[24] CO 83/15, folios 780–1 [CO paper 7518 of 1877].
[25] Ibid folio 789.
[26 ] Thring papers, above n 6.
[27] UK, Parliamentary Debates, 3rd series, vol 233, col 1399 (House of Commons, 18 April 1877).
[28] CRES 37/356 [file 20953]. See also Marston, above n 18, 146–9.
[29] CRES 40/94, folios 343–9.
[31] House of Lords Sessional Papers, 1878 (Bill 40), vol vi, 231; (1878) 110 Journals of the House of Lords 86.
[32] CRES 37/356.
[33] CRES 40/94, folios 349–50. According to Gorst (CRES 37/356), the opinion was written by Sir Hardinge Giffard SG who had unsuccessfully argued the Crown’s case before the Court for Crown Cases Reserved.
[34] House of Lords Sessional Papers, 1878 (Paper 38), vol vi, 227.
[35] The words in italics were deleted by the Territorial Sea Act 1987 (UK), s 3(4) and sch 2. The effect is that the Act applies up to the new United Kingdom limit of 12 nautical miles from the baseline.
[36 ] UK, Parliamentary Debates, above n 7, cols 1615–16.
[37] Ibid col 1616.
[38] Territorial Sea Act 1987 (UK), ss 1(1)(b) and (4); see also Territorial Waters Order in Council 1964 (Statutory Instruments 1965, p 6452A) as amended.
[39] See United Nations Convention on the Law of the Sea (1982) 21 ILM 1261; ATS 1984 No 31 art 3.
[40] For a more detailed account, see G Marston, ‘Historical Aspects of Colonial Criminal Legislation Applying to the Sea’ (1980) 14 University of British Columbia Law Review 299.
[41] The Courts (Colonial) Jurisdiction Act 1874 (UK).
[42] Oteri v R [1976] 1 WLR 1272, 1277, on appeal from Oteri and Oteri [1975] WAR 120.
[43] Dodson QA, Jervis AG and Romilly SG on 7 August 1849: CO 137/305, folio 47 [CO paper 6981 of 1849].
[44] CO 323/228, folios 322–5. The full text is printed in Marston, above n 40, 312–13.
[45] See, eg, 1893, c 6 An Act Respecting Foreign Fishing Vessels (Newfoundland), which extended criminal sanctions to foreign fishing vessels within ‘three marine miles of any of the coasts, bays, creeks, or harbours of this island’.
[46] CO 234/39, folio 189 [CO paper 14983 of 1879].
[47] CO 234/39, folio 196. Under cover of a general CO circular dated 1 December 1879, a copy was sent without comment to the Governor of every British possession (CO 854/20, folio 435). No colony responded (CO 862/4, folios 189–190).
[48] CO 234/40, folio 18 [CO paper 4522 of 1880].
[49] CO 194/220, folios 386–7 [CO paper 13619 of 1891]. For a more detailed account, see Marston, above n 40, 320–22.
[50] Ibid folios 390–1. Its full text is printed in D P O’Connell and A Riordan, Opinions on Imperial Constitutional Law (1971) 170–3.
[51 ] [1982] 1 WLR 887, 939.
[52] Examples in recent UK statutes are: Territorial Sea Act 1987, s 1(1)(b); Petroleum Act 1998, sub-ss 2(2), 10(7)(a), etc; Scotland Act 1998, s 126(1); Government of Wales Act 1998, s 155(1). For an example even earlier than the 1878 Act, see Foreign Enlistment Act 1870, s 2.
[53] UK, Parliamentary Debates, above n 27, col 1398.
[54] [1979] AC 107, 120.
[55] Ibid.
[56 ] See Post Office v Estuary Radio Ltd
[1968] 2 QB 740, 753–4, 755.
[58] (1890) 63 LTNS 705, 708. See also Carr v Fracis Times & Co [1902] AC 176, 181 (Earl of Halsbury LC, formerly Sir Hardinge Giffard).
[59] In R v Kent Justices; Ex parte Lye
[1967] 2 QB 153, 176, Lord Parker CJ noted the limited scope of the extension of jurisdiction made by the 1878 Act.
[60] [1975] HCA 58; (1975) 135 CLR 337, 463.
[63] J Salmond, ‘Territorial Waters’ (1918) 34 Law Quarterly Review 235, 244.
[64] Ibid 245.
[65] Reference concerning ownership of and jurisdiction over offshore mineral rights [1966] INSC 207; [1967] SCR 792, 805.
[66] P Spender, ‘The Great Barrier Reef: Legal Aspects’ in Australian Conservation Foundation, The Future of the Great Barrier Reef, Special Publication No 3 (1969) 25, 36–7.
[67] [1969] HCA 31; (1969) 122 CLR 177, 188.
[68] Ibid 220.
[69] [1974] HCA 23; (1974) 131 CLR 203, 226.
[70] [1975] HCA 58; (1975) 135 CLR 337, 362.
[71] Reference Concerning the Ownership of the Bed of the Strait of Georgia and Related Areas (1976) 1 BCLR 97, 139.
[72] Ibid 141.
[75] Reference re Mineral and other Natural Resources of the Continental Shelf (1983) 145 DLR 3d 9.
[76] Reference concerning property in and legislative jurisdiction over the seabed and subsoil of the continental shelf offshore Newfoundland [1984] 1 SCR 86.
[77] [1975] HCA 58; (1975) 135 CLR 337, 436–7.
[78] [1984] 1 SCR 388, 425.
[79] Ibid 424 (original emphasis). Dickson J seems to have had in mind the saving provision in the Act of 15 Richard II, c 3, which permitted the trial within the Admiral’s jurisdiction of homicide and mayhem done in great ships in the main stream of great rivers below first bridges. It is not clear whether this Act, which was repealed by the Criminal Law Act 1967 (UK), s 10(2) and sch 3, ever applied to foreign ships.
[80] See, eg, Anderson (1868) LR 1 CCR 161 (tidal river in a foreign country).
[81] See, eg, R v Liverpool Justices; Ex parte Molyneux [1972] 2 QB 384 (port in a British colony). A foreign ship within the ports, harbours or bays of a colony is outside the reach of the 1878 Act, not because it is not on the ‘high seas’ but because it is not ‘on the open sea within the territorial waters of Her Majesty’s dominions’ as stipulated by s 2 of the 1878 Act.
[82 ] MT 10/75.
[83] [1975] HCA 58; (1975) 135 CLR 337, 434.
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