QUESTION. ANSWER. Some years ago, a singular case occurred on this point of jurisdiction: a murder had been committed by a smuggler, who, from the shore, not then covered by the tide, shot a custom house officer while swimming. Which had the jurisdiction competent to try him? It was decided to be that of the shore. Is this power of jurisdiction without distinction of the rank of persons, or is it limited to persons belonging to the crew? 4. How are maritime cases in criminal matters brought before a competent tribunal ? This power of jurisdiction admits of no respect of persons; it is determined by the nature of the place, ratione loci. On a complaint lodged before a justice of peace, who examines the matter, who collects the witnesses, with the depositions, and examines them, and sends the witnesses with the depositions and the accused, before the criminal tribunal. Should the justice of the peace decide there is no ground for allowing the complaint to go forward, the plaintiff may address himself directly to the Admiralty court; a jury then examines the affair, and decides whether there is ground or not, for taking it before this court. The above course is likewise followed when the matter, instead of being referred to the ordinary criminal court, has to be judged by the Admiralty court. It depends on the plaintiff to choose either of the two. Is there any public officer who No, except in some cases, which either on denunciation or com- are few, and seldom occur; either plaint, in virtue of his office, is the Attorney General, the Solicitor authorised in the name of society General, or a particular solicitor to issue process, and to demand or attorney of the Treasury, or punishment by the laws? that of the Admiralty, according to the branch of the administration which the question may concern. Thus, for a maritime criminal matter to receive judgment, it is necessary, in general, that a particular person should call forth the exercise of justice, in presenting himself as plaintiff: this person commences the prosecution in the name of the king. No: they are slower, and more expensive. 5. In what essential points of proceeding does the Admiralty court differ from others? Are its proceedings more expeditious, or less expensive? Can the Admiralty court judge an offence, and at the same time apply the law, or does it proceed with the assistance of a jury, the declaration of which would form the basis of its decision? The Admiralty court, like the the criminal court, requires the assistance of a jury. N.B. Some offences, or acts of a particular nature, are brought before the court of Admiralty, (a single judge,) which decides without a jury. This case is very rare. Mr. Jones knows only of two instances of it. He quoted one of a merchant captain, who was brought before a court of Admiralty for having improperly hoisted on board his vessel the flag exclusively intended for the royal navy. Is the intervention of a jury required for the trial of common offences, as it is for those of felony? Yes. ENLARGED SERIES.-NO. 1.-VOL. FOR 1838. D QUESTION. How many judges is the Admiralty trubunal composed of? ANSWER. There are four judges at least in a special commission or Admiralty court, as in the ordinary criminal court. When this last court judges a maritime offence, it is not presided over by an ordinary judge, but the judge of the Admiralty court, who is then sitting, gives those necessary explanations of the affair which his special experience enables him to do. Is it intended to modify the actual state of the law in any essential points for the punishment of offences and crimes committed on board merchant vessels? When this question was put, (in the month of July,) a bill then under consideration of parliament, that is the bill concerning merchant seamen, contained the proposal to take from the jury, and to transfer to two justices of the peace, the right of judging certain offences, committed on board merchant vessels. It has been already seen by the first question, that this plan was adopted, the bill containing it, being that of the 30th July. 6. By what funds are the expenses of criminal process defrayed in maritime affairs? As far as concerns those cases which are not maritime, the expenses of prosecution before the central criminal court, are defrayed by the counties in which the offences have been committed, but with regard to offences committed on the high seas, the expenses are defrayed from a fund placed at the disposal of the Admiralty, in the same manner as before the jurisdiction of the Admiralty was transferred to the central criminal court. Thus, in whatever port the ship arrives, either of England, Scotland, or Ireland, if the complainant goes before the justice of peace, and if he be bound over with witnesses to prosecute the affair in the central criminal court, the expenses of his journey to London are allowed him, as well as those summoned to appear before the grand jury, and those served with process of judgment. But in cases where the complainant or witness is not bound over by the decision of the justice of peace to follow up the affair, the expenses are not allowed. The expenses of the defendant's witnesses are never allowed them, whether he be acquitted or not. The expenses are allowed in all cases of prosecution for felony, and only in some cases for misdemeanour. It is always at the discretion of the presiding judge to allow the expenses or not, and should he think that the prosecutor, or any witnesses, are blameable, he often refuses them their expenses. N.B. It was Mr. Deane, advocate of the central criminal court, who gave me the preceding information on the article of expenses. This information is not so correct as might be desired: it is contradicted by the ship owners whom I have consulted, as will be seen in the observations against the succeeding questions. 7. Is the assistance of an advocate indispensable in the trials of maritime criminal affairs? According to the French law The assistance of an advocate is not indispensable. The accused has the right to secure the assistance of an advocate at his own QUESTION. (art. 294, of the criminal code, and for the affairs of the court of assize) the accused is obliged to have an advocate chosen either by himself or the judge. ANSWER. expense; even if he be not in a condition to pay him he may obtain one, who upon his demand is appointed to that office by the judge; but the judge is not obliged to acquiesce with this demand, and may grant or refuse it, as he pleases. Generally the accused has no advocate, the judge filling up the office for him. It may be moreover observed, that by an inconsistency, of which the English mode of proceeding affords so many examples, the advocate of the accused in criminal matters, is admitted to plead only the points of right; whilst in those of misdemeanours he may discuss the whole case. 8. Are judgments which are delivered on maritime cases of simple misdemeanour liable to be referred for appeal? No for misdemeanours as well as crimes, the judgments are final. They cannot be set aside, except by the issue of a trial, on some point of right, the decision of which is then submitted to the fifteen judges of the kingdom. 9.-What authority is the captain invested with for the suppression of offences against the good order and discipline of his ship? Has he only the power to preserve discipline? Does this power extend over his passengers as well as the crew of his vessel ? Here, necessity alone constitutes law: it would be dangerous to establish or lay down any particular rule, to fix limits of rigour which would afterwards become the source of a multitude of trials. In principle, the captain has all the authority over his crew and passengers that is required for the safety of his ship, and success of the voyage. By the terms of his engagement, the seaman, on pain of forfeiting all, or part of his wages, or of all that belongs to him in the vessel, must obey the orders of his captain with respect to the duty of the vessel; and likewise those having for their object the maintenance of good order, and the prevention of vice and immorality. The captain ought, in all cases, to use his authority with moderation. On his return to England he may be brought to justice by any man in his erew, whom he may have struck, ill-used, or imprisoned in the course of his voyage; and, if he cannot prove that the punishment was just and moderate, he may be sentenced to make reparation in the shape of damages. The captain is authorized to employ force to suppress an outrage or crime; that is to say, to secure the punishment of a delinquent, by putting him beyond the power of doing any more harm ; but he has no criminal jurisdiction over him, and on his return to the united kingdom, he must deliver him over to competent authorities, unless by falling in with a man of war, he may get rid of him sooner. In the case of mutiny, or open revolt, on the part of the crew, the resistance of the captain, with regard to the serious consequences which it may produce, is considered justifiable, as falling under legitimate defence, and his conduct will be judged accordingly. In one word, the captain should regulate the exercise of his authority by circumstances which will be afterwards appreciated by the court. I was told a very remarkable fact of this kind. Some years ago, a ship having on board a great number of passengers, had arrived in sight of the coast of England, when a storm overtaking her, all the passengers remained on deck, interrupting, by their presence, the management of the vessel and thereby increasing the dangers of her situation. The captain ordered the passengers to be battened down in the hold; they were crowded into it, and the want of air caused the death of several A charge of murder was brought against the captain, in the name of the parents of the deceased, but the captain was acquitted on the consideration that the part he had acted was fully justified by the circumstances. Has the captain the right to inflict punishment by his own means, the vessel being in a port of at a roadstead? Before inflicting punishment is he obliged to consult his officers, and to state it in writing, in any act whatever? Not in port. England, as if she were at sea, or This ought to be done; prudence requires that there should be on board a kind of council of justice. This custom was followed in the ships of the East India Company, but not in any others; the captains of which are bound to enter in their logs the punishment they have awarded. PENALTIES. 1. What punishment is assigned to him who uses abusive language towards the captain, or other officer ? None whatever. The captain in this case knocks the man down, or returns the compliment, or adopts any other method he pleases. The English law in not providing any punishment for cases of abusive language, has acted (as the Admiralty's solicitor told me) up to the vulgar adage, that "Bones are never broken by words." In France, in the present state of the law, the man who commits such an offence, incurs no more than a fine of from one to five francs, established by the code of mere abusive words, acts 376 and 471, of the penal code of 1810. This punishment might be deemed sufficient between citizens; but it is easy to conceive, that the injury done to the captain, or his officer, presents a character of gravity which demands a severer check. Thus, by the project of penal law laid down for the mercantile marine, the punishment, in a case of abuse, would be imprisonment from six days to one year, with power in the judge to inflict an additional fine, from sixteen to 100 francs. 2. What punishment does the man incur, who threatens his captain or officer ? In France, in the present state of the law, no punishment will reach the author of a verbal threat, unless this threat be accompanied by an order, or under a condition, Here again, the captain, in this case, punishes by any means in his power. The Admiralty's solicitor thinks it would be well to establish in England, a punishment against this offence, as it is intended to be done in France : the sailor should forfeit his wages This by judgment of the court of Ad- (that is, an order to deposit a sum of money in a place indicated, or to fulfil any other condition,) in which case the offender is liable to be punished, art. 307 of the code, with from six months' to two years' imprisonment, and a fine of from 25 to 300 francs. It was deemed important, that a man who had offered to threaten his captain, even without an aggravating injunction or condition, should be hereafter punished; and for this the projected law provides the punishment of imprisonment from six days to one year, with power to add a fine of 16 to 100 francs. 3. What is the punishment for the man who strikes his captain, or an officer? In France, while (according to art. 309 of the penal code of 1810, modified in 1822) it is from six days to two years of imprisonment, and a fine of 16 to 200 francs, or one of these two punishments only; the intended law raises the minimun and the maximum punishment: thus, three months to three years of imprisonment, with power to add a fine of 50 to 300 francs. There is no special provision made for this case, on the position of the sailor with regard to his captain. The general punishment consists in fine and imprisonment. The judge modifies its application according to the station of the giver and receiver of the blow, and naturally its application is more severe when a sailor is charged with exercising his pugnacious qualities upon his captain, than if deciding between one person and another in the ordinary relations of civil life. If the sailor had struck him with a weapon of any kind, he would be liable to suffer death or transportation for life. 4. What punishment is provided for seamen, who by fraud or violence towards the captain, take possession of the ship? Death to all concerned in the perpetration of the deed. In France at present, it is (according to the law of 1825) punishment of death against chiefs and officers. Punishment of perpetual hard labour for life against the crew. 5. Is theft on board ship punished more severely than it is on shore? According to the French laws in force, (art. 15 of the law of 10th April, 1825, referring to art. 386 of the penal code,) the author of a theft committed on board, even if he be a passenger, is subject to the degrading punishment of confinement for five years at least, and ten years at furthest. Yes; a theft of that species is considered as a domestic theft. Nevertheless, the estimation of it is left to the discretion of the judge, who considers the value of the article stolen, and pronounces according to this value, and the circumstances of the theft, the punishment of transportation for a time, or for life. |