that, if Englishmen were taken by a French vessel on suspicion of smuggling in France, and were under duress, they would, if wrongfully taken, have a right to liberate themselves, and not wait for liberation by the law of the foreign country; and they would also have a right to retake the property of which they had been wrongfully deprived. I submit, therefore, that, as Majaval had a right to liberate himself and retake his ship, the other prisoners had also a right to rise, because they were wrongfully taken; and that they also had a right to assist Majaval to retake his ship; it being clear that no means short of what they used would have effected their purposes; and they were not bound to wait for the decision of a court at Sierra Leone. ALDERSON, B.-It would be difficult to show that it was necessary to murder every Englishman on board. It is not so found; and it is not even found that it was necessary to kill Mr. Palmer. Manning, Serjt.-There was no way for these persons to obtain their liberty at the moment, except by what they did. No excess of violence is showr; and it was done over and over again during the war, and was conmended. *There is nothing to distinguish this case from *66] that of the crew of a merchant vessel rising on the crew of a privateer who have captured them, except that that would be a rising after a lawful capture, which this was not. I now come to the other branch of my argument-that even supposing that murder was committed by the prisoners, they are not amenable to the laws of this country. I apprehend that it is clear, that a foreigner committing a crime in foreign country is not amenable to the laws of this country, and that if these persons, being Brazilians, had committed this offence at Rio de Janeiro, they could not have been tried for it here; so, if they had com nitted the offence on board a Brazilian vessel, even if an Englishran had been killed. A Brazilian bottom is precisely the same as Bralian land. I submit, also, when the taking of a vessel is tortious, it will not alter the nationality; and further, that, even if the taking be rightful, the nationality of the vessel will not be changed till she is condemned. The "Felicidade" never was condemned, as she was lost before condemnation could take place; but, even if the "Felicidade" had been condemned, your Lordships would not make men guilty of a crime by relation, which was not a crime at the time. In the case of Reg. v. Depardo, 1 Taunt. 26, which was a case of manslaughter committed in China on an Englishman by an alien enemy, who had been a prisoner of war, and was then acting as a mariner on board an English merchant vessel, it was objected that the prisoner could not be tried in England under a commission founded on the stat. 33 Hen. 8, c. 33, and 43 Geo. 3, c. 113, s. 6. No judgment was given; but the marginal note of the case states that the prisoner was not triable here. Buonaparte declared that all vessels which touched at English ports should be deemed English, but that declaration would not give the courts here authority to try all offences committed on board such vessels. The case of Regina v. Azzopardi, 1 Car. & Kir. 203, was the case of a *Maltese, who was a British subject, tried for the murder of a Dutch woman. [*67 POLLOCK, C. B.-That case merely decides that the stat. 9 Geo. 4, c. 31, s. 7, was passed to restrain the crimes of murder and manslaughter by British subjects all over the world. It has nothing to do with this case. Manning, Serjt.-I therefore submit, that a crime committed by a foreigner in a foreign vessel which has not lost its nationality, is not triable here. R. P. Collier, for the prisoners Serva, Majaval, and Alves.-No one is triable in our country, unless he owes allegiance to our sovereign, or has given assent to our laws. In Calvin's case, 7 Co. 5 b, it is laid down that allegiance is of four kinds :-1st, the allegiance of naturalborn subjects, ligeantia naturalis; 2d, the allegiance by acquisition or denization, ligeantia acquisita; 3d, local allegiance, ligeantia localis; and 4th, ligeantia legalis, which is allegiance in a manner prescribed by our municipal law, which is not material to this case; and there is no doubt that the law implies, that if a person voluntarily comes to this country, he submits himself to our laws, and the ground for this is, that we could exclude him. This principle is laid down by the best writers on the law of nations. Grotius says, Lib. 2, c. 2, n. 5, “ Qui in aliquo loco contrahit is subditus temporaneus legibus loci subjicitur," "ratio est, quia ad gubernationem populi moraliter necessarium est, ut qui populo vel ad tempus se admiscent ii conformes se reddant ejus populi institutis;" and Huber says, (a) “Pro subjectis imperio habendi sunt omnes qui intra terminos ejusdem reperiuntur, sive in perpetuum, sive ad tempus ibi commorantur." It is laid down by Mr. Justice Story,(b) that, "in regard to foreigners resident in a *country, although [*68 some jurists deny the right of a nation generally to legislate over them, it would seem clear, upon general principles of international law, that such a right does exist, and the extent to which it should be carried is a matter purely of municipal arrangement and policy;" and it is said by Vattel, (c) that, "even in those countries which every foreigner may freely enter, the sovereign is supposed to allow him access only on this tacit condition, that he will be subject to the laws:" "in virtue of this submission, foreigners who commit faults are to be punished according to the laws of the country." Lord Coke's definition of murder is (3 Inst. 47), "When a man of sound memory, and of the age of discretion, unlawfully killeth, within any county of the realm, any reasonable creature in the king's peace with malice forethought;" but this (a) Huberus, Prælect. Juris civilis, De Conflictu Legum, lib. 1, tit. 3, ax. 2. (e) Vattel (Chitty's ed.), p. 172. must be taken with a limitation that the accused owed allegiance to the King, as Lord Coke says(a) that Perkin Warbeck was not triable here for high treason committed in this country, because he was an alien enemy in arms. And in Calvin's case, 7 Co. 6 b, it is laid down, that, "if an enemy were to take one of our towns and establish a colony there, persons born in that colony, although within this country, would not owe allegiance," and consequently they would not be triable by our laws; and what I contend for is, that the jurisdiction of the British Admiralty cannot apply to any persons but those who owe allegiance to our sovereign: anything beyond that would be in contravention of the power that every state has for the government of its own subjects. It would be unjust that a man should be bound by laws which he does not understand, in a state where he has no protection; and a forced protection is not sufficient. It would be unjust to try Brazilians by our laws for slave-trading, which is not treated in their country as it is with us; and I submit, that the Admiralty of this country can only try persons who *commit crimes on board ships, and are within the king's alle*69] giance; and that a foreigner, to be within the term "allegiance" so as to give our Admiralty power to try him, must have voluntarily come on board a British ship. ALDERSON, B.-If a prisoner of war killed the captain who carried him on board his ship, would he not be triable here?—and yet he does not come on board voluntarily. R. P. Collier.-In cases of prisoners of war, the prisoner is not killed by the captor, as he might be; and he may be said, where his life is spared, to enter into a compact with the captor, and to abide by the rules of war. In the case of Regina v. De Mattos, 7 C. & P. 458, it was held that the prisoner was not indictable, under the stat. 9 Geo. 4, c. 31, s. 7, for the murder of a person on land abroad, because the person died on board a ship, though the blow was given when the person was on land. Depardo was tried under a commission issued under the stat. 33 Hen. 8, c. 23, which gave jurisdiction to try offences committed in this country or abroad: it indeed applied to all the world. Depardo owed no allegiance to the king, although he was one of the crew of a British merchant vessel, and was only a short time on shore in a foreign country, with an animus revertendi. ALDERSON, B.-Depardo did not owe any general allegiance to the king, and the blow was in that case given on shore in a foreign country. The temporary allegiance of the foreigner ceases when he goes on shore abroad, but the natural-born subject takes his allegiance with him. R. P. Collier.-It does not follow, that, because Lieut. Stupart might have been tried here for the murder of a foreigner, that that foreigner might be tried here for the murder of Lieut. Stupart. Lord Hale *70] says, 1 H. P. C. 433, that, if an *Englishman “kill an alien (a) Calvin's case, 7 Co. 6 b. enemy, within this kingdom, yet it is felony, unless it be in the heat of war and in the actual exercise thereof." I admit that pirates are an exception to all these rules, and may be hunted down by any persons; but I submit, that none of the prisoners in the present case were pirates. by the law of nations. Lord Stowell, so lately as the year 1827, said that slaves were property, and that the transfer of them was lawful; and I therefore submit, that, by the law of nations, dealers in slaves are not pirates. If the prisoners in this case are pirates at all, they are only made so by treaty. Now, a treaty cannot make that a crime which was not so before. The sovereign of this country may make a treaty of alliance, but not of ceding territory nor of subsidy; as for these, the assent of Parliament is necessary. Here we have a treaty with the Emperor of Brazil, declaring that slave trading shall be treated as piracy; but, even if the Emperor of Brazil were a despotic sovereign, some law passed by him as a legislator should have been given in evidence, which could not be, as the Court knows that the constitution of Brazil is representative. I understand that the learned Baron, at the trial, considered the instructions to ships of war to be directory only: but could an officer of the navy multiply the navy by authorizing more ships? The reason why the treaty is so explicit is, that the Brazilian slavers may know when they might resist and when they might re-capture; for I apprehend that the right of re-capture follows the right of resist ance. I next have to submit, that, where there is an illegal detention, the death of the party detaining cannot amount to more than manslaughter; and that, if a man were in unlawful custody, and killed the gaoler, it would not be murder. ALDERSON, B.-That would depend on circumstances. R. P. Collier.-I submit, first, that no person is triable in this country who does not owe allegiance to our *sovereign in one of the [*71 modes mentioned in Calvin's case, or in the instance of the prisoner of war whose life has been spared; and that persons, except in this instance, cannot owe allegiance unless they were born in this country or are in it by their own consent; and that the treaty in this case does not amount to such consent. I submit, also, that, even if this Mr. Palmer had been killed on board "The Wasp," the case would not have been triable here, as these persons would not have been on board "The Wasp" by their own consent; and that, however that might be, as the "Felicidade" was illegally taken, that vessel was in effect the same as Brazilian ground, and that a child born there would have been a Brazilian subject. And I further submit, that, even if the prisoners were triable in this country, that which they did was to liberate themselves from unlawful custody, and therefore less than the crime of murder. Lieut. Stupart was either a private wrongdoer, or a public servant, acting on instructions which were contrary to the treaty. If he was a private wrongdoer, his acts could not bring a Brazilian vessel within the jurisdiction of this country: if he was a public servant acting on instructions contrary to the treaty between his own nation and another nation, it was an act of hostility, and the prisoners were justified in what they did by the laws of war, if not by the laws of peace. Godson, for the Crown.-It is laid down by Mr. Justice Foster (Fost. C. L. 255), that, "in every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him, for the law presumeth the fact to have been founded in malice till the contrary appeareth." On the part of the prosecution, the death of Mr. Palmer by violence was proved; and it is said for the prisoners, that they were kept in a place where *there was no right to confine them. It is proved that they con*72] spired to seize the ship, they themselves belonging not to that ship but to another; and that they conspired to kill the English, and to take away the ship of Cirqueira. I shall submit, first, that the Felicidade" was legally taken. Captain Usher had authority from the Admiralty to cruise for vessels engaged in the slave trade, and had instructions on board his ship, "The Wasp." He sent a boat to take theFelicidade," and it followed her till she surrendered to Lieut. Stupart, who had with him the ensign and the jolly-boat of "The Wasp,' which he brought from "The Wasp," and the captain of the "Felicidade," Cirqueira, then submitted. Had Lieut. Stupart a right to detain and to retain the "Felicidade," as she had no slaves actually on board? By the 1st article of the treaty between this country and Brazil, which is recited in the preamble to the stat. 7 & 8 Geo. 4, c. 74, it is declared, that, after the expiration of three years from the ratification of that treaty, it should not be lawful for the subjects of the Emperor of Brazil to be concerned in the carrying on of the African slave trade under any pretext or in any manner whatever; and that the carrying on such trade after that, by any person subject of his Imperial Majesty, should be deemed and treated as piracy." Now, piracy is an offence known to all nations, and the pirate is a robber of the sea. It is found by the case, that the "Felicidade" was sent out for the purpose of slave trading, and the authorities of Brazil have declared that persons who so act shall be treated as pirates. If they be pirates, they have no nationality, and are triable by the Admiralty of England. I contend, also, that, by the submission of her captain, the "Felicidade" was in possession of the Queen's officers, and, being so, Serva and others who belonged to "The Echo" cannot be allowed to say that she was illegally taken. Cirqueira, the captain of the "Felicidade," would not join in the plot to seize the ship, and murder the Englishmen. It has been said, that "The Echo" was taken by the "Felicidade," when she had no *printed instructions on board. I, however, submit, that "The Echo" was not taken by the "Felicidade" at all, but by the boat *73] |