king, and that the offence was committed against his peace, sufficiently showed that both parties were the king's subjects.

*ALDERSON, B.-A prisoner of war is liable to our laws.

[*89 Dr. Harding.—The reason of that is, that you may deprive a prisoner of war of life, and the sparing of his life is the consideration of a sort of qualified allegiance to the state to which he is a prisoner. But if these Brazilians were not pirates, where is the consideration that could operate on them?

PARKE, B.-Do you contend, that if a Frenchman were put on shore here wrongfully, he would not be liable to our criminal laws?

Dr. Harding. If a Frenchman were kidnapped and put on shore here, and committed an offence, the question, whether he would be triable here, would be a new point which has never been decided here. ALDERSON, B.-If he committed a murder here, would he be triable here or in France?

Dr. Harding-France has not given him up. The last point is, that, if these men were within the Queen's peace, they were not guilty of the crime of murder. It is not found that the prisoners used more force than was necessary. Majaval belonged to the "Felicidade," and used no more violence than was necessary to regain his own liberty, of which he was wrongfully deprived; and, with respect to the running away with the vessel, it would have been of little use for these men to have regained their liberty to throw themselves overboard. Majaval tried to regain his liberty, and to regain his own ship. It is laid down by Mr. Justice Foster, (a) that "if a process be defective in the frame of it, as if there be a mistake in the name or addition of *the person on whom it [*90 is to be executed, or if the name of such person, or of the officer, be inserted without authority and after the issuing of the process, or the officer exceedeth the limits of his authority and is killed, this will amount to no more than manslaughter in the person whose liberty is so invaded." Did not Lieut. Stupart exceed his authority? Did not Mr. Palmer exceed his? and if the "Felicidade" was seized contrary to the treaty, is not that much more than an error in a process ?

Sir J. Dodson, Ad.-G. (with whom was Dr. Phillimore, the advocate for the Admiralty), for the Crown.-I have to contend that the capture of the Felicidade" and "The Echo" were both legal, and that the prisoners were in lawful custody, and triable in this country. I do not contend that these captures in time of peace were legal, unless they were authorized by treaty. The "Felicidade" was equipped for the slave trade, and it is objected that she had no slaves on board; but, by the Brazilian treaty and the stat. 7 & 8 Geo. 4, c. 113, the entire trade, from the month of March, 1830, is declared to be illegal and piracy, and, although it may be that the prisoners could not be tried as pirates without an act of their own legislature, yet there might be a right to

(a) Fost. Cr. L. ch. 8, s. 9.

seize them, as their own government had conceded it. It is one thing that a ship would not be condemned, but it is wild to suppose that, because a vessel is not condemned, the capture is therefore illegal. In time of war, neutrals are constantly taken: the suspicion justifies the detention. Was not Capt. Usher, therefore, in this case, entitled to visit, search, and detain? His commission is to that purpose; and I submit that he had authority to inquire into the matter, and if he had suspicion he might seize the ship. There are several cases before the mixed commission.

Lord DENMAN, C. J.-Are these cases regularly reported?

*Sir J. Dodson, Ad.-G.-They come from the judges them*91] selves, and are printed with the "papers relating to the slave trade" presented to Parliament in 1839. And, in the case of the "Entraprenhador," a vessel which had no slaves on board was condemned on the ground that she was equipped for slave trading; and, in the case of "The Fortuna," 1 Dods. Adm. Rep. 81, decided in the Admiralty Court here, in the year 1811, it was held that the slave trade is deemed by this country contrary to the law of nations, unless tolerated by the municipal regulations of the state to which the owners of the vessel engaged in the trade may belong; and Sir W. Scott says, Id. p. 86, that it matters not, in my opinion, what is the stage of the employment, whether in the inception, or the preservation, or the consummation of it; the case of the Amelia' will bind the conscience of this court to the effect of compelling it to pronounce a sentence of confiscation." The case of "The Amelia," Id. p. 84, n., established the principle, that any trade contrary to the law of nations, although not tending to or accompanied with any infraction of the belligerent rights of that country whose tribunals are called upon to consider it, may subject the vessel employed in that trade to confiscation; and, in that case, Sir W. Grant says, "We have now a right to affirm, that, prima facie, the trade is illegal, and thus throw on claimants [of restitution] the burden of proof, that, in respect of them, by the authority of their own `laws it is otherwise." In the case of "The Diana," Id. p. 95, Sir W. Scott says, "The principle which has been extracted by the judge of the court below from the case of the Amelie' is the reverse of the real principle there laid down by the superior court, which was, that where the municipal law of the country to which the parties belong has prohibited the trade, the tribunals of this country will hold it to be illegal, *upon the general principles of justice and humanity, and refuse *92] restitution of the property; but, on the other hand, though they consider the trade to be generally contrary to the principles of justice and humanity, where not tolerated by the laws of the country, they will respect the property of persons engaged in it under the sanction of the laws of their own country." Kent, in his Commentaries, (a) says,

(a) Part 1, lecture ix. p. 200, n. (c).

"The doctrine in the case of the Antelope,' and in the English cases. therein referred to, is, that the right of bringing in for adjudication in the time of peace foreign vessels engaged in the slave trade, and captured on the high seas for that cause, did not exist, and vessels so captured would be restored, unless the trade was also unlawful and prohibited by the country to which the vessel belonged; and if a claim be put in for Africans as slaves and property, the onus probandi is thrown upon the claimant, to make specific proof of the individual proprietary interest according to the laws of the country to which the vessel belongs." Kent, in support of this doctrine, cites cases in the Admiralty Courts of England and America. I admit that there is no right to punish unless by a municipal law, but there may be a right to capture and a treaty would be sufficient to justify a capture. Kent, in his Commentaries, (a) also says, "It [the slave trade] was not piracy, except so far as it was made so by the treaties or statutes of the nation to which the party belonged; it might still be carried on by the subjects of those nations who have not prohibited it by municipal acts or treaties." Great Britain had a right to presume that Brazil had provided for it by her laws. There was a case before the mixed commission court of The Maria Carlotta." It was objected that she had no slaves on board, and the Brazilian government gave the matter up.

Lord DENMAN, C. J.-We are going a great way to receive these reports at all, but what the Brazilian government consented to is going still further.

[*93

Sir J. Dodson, Ad.-G.-Allusion has been made to the capture of neutrals, but I have yet to learn that the crews of captured vessels may rise on their captors. In the case of "The Dispatch," 3 Rob. Adm. Rep. 278, it was held that the rescue of a neutral ship by her crew from the hands of a lawful cruiser is a cause of condemnation; and there are several cases in which vessels have been condemned, because the crew rose on their captors.

Dr. Harding. I admit it.

PARKE, B.-The question is, whether the Brazilian owner has agreed by his government that he shall be liable to seizure?

Sir J. Dodson, Ad.-G.-Here was a British officer with a British commission and British instructions, and his exceeding his authority would. not invalidate the seizure. Bynkershoeck says, (b) "Sed pirata quis est necne inde pendet an mandatum prædandi habuerit; si habuerit et arguatur id excessisse non continuo, eum habuerim pro piratâ." It is true that Sir Leoline Jenkins says, (c) "It is not only piracy when a mar robs without any commission at all, but it is piracy when a man having a commission despoils and robs those which his commission warrants him not to fight or meddle with; such, I mean, as are de ligeantia vel amicitin

(b) Quæst. Jur. Pub. lib. 1, c. 17, p. 224.

(a) Part 1, lecture ix. p. 200. (c) In his charge at the Admiralty Sessions, Wynne's Life of Sir L. Jenkins, vol. 1, p. xciv

Domini nostri Regis, and also de ligeantia vel amicitia of that prince or state that hath given him his commission;" but that is not so. It has been said that "The Echo" was improperly taken, as the "Felicidade" was *not a legal tender of "The Wasp;" but I submit that the *94] capture was made by "The Wasp" by means of her jollyboat, and not by the "Felicidade." In the case of "The Barbara," the tender was 1500 miles from the ship, but that case went entirely on the interpretation of the Prize Distribution Act. It is said, that this was a Brazilian vessel, and the property not converted: but suppose that her Majesty's forces, under her Majesty's orders, were to take possession of any island?

PARKE, B.-The old law of the place would be in operation till the Queen ordered otherwise.

ALDERSON, B.-Then would arise the question, whether the English authorities might not have to try by Prazilian law.

Sir J. Dodson, Ad.-G.-But not by Brazilian courts.

POLLOCK, C. B.-The argument cannot go to the full extent, because on land the Admiralty could never have jurisdiction.

Sir J. Dodson, Ad.-G.—I submit, that, to give jurisdiction in this case, it is not necessary that there should be a conversion of the property of the ship taken.

POLLOCK, C. B.-Is there any case of a neutral, after capture and before adjudication or condemnation, being held to be under British authority?

ALDERSON, B.-If a felony were committed between two neutrals on board a ship so circumstanced, would that be triable by our Admiralty? Sir J. Dodson, Ad.-G.—I do not know of such a case.

*95]

*POLLOCK, C. B.-Would neutrals seized before adjudication be so far owing allegiance here, that they would be triable here for common felonies?

Sir J. Dodson, Ad.-G.—I think that they would.

Lord DENMAN, C. J.-Do you concede that a private person would have no right to take another person, Brazilian, who was palpably engaged in the slave trade, to hand him over to the Brazilian authorities?

POLLOCK, C. B.-Would a private English merchant have a right to seize a Brazilian slaver, and would such a seizure make her so far British as to make offences committed on board her triable here?

Sir J. Dodson, Ad.-G.-I apprehend that a private merchant ship would have the right of seizure under such circumstances.

Dr. Phillimore (Advocate for the Admiralty) asked if he might argue for the Crown.

Lord DENMAN.-Dr. Phillimore, we think we ought not to hear more than one advocate for the Crown.

Dr. Jesse Addams, in reply.—If the "Felicidade" was layfully in

the possession of the British officers, I cannot show that the offence of the prisoners was less than murder; but I contend that she was not lawfully taken. Except under the Portuguese treaty, there is no right of search. There is no proof of any municipal law of Brazil, and there is no right of search in time of peace, except by compact or treaty. I never contended, that, in order to justify the British officers, the vessel must be condemned; if they had a legal right of detention, that would be sufficient. With respect to the case of "The Fortuna," I would observe that that case occurred in time of war, when the *right of visitation and the right of search existed, and she was there[*96 fore in the lawful possession of the seizor. Your Lordships have asked as to the possession of a neutral. I apprehend that such a vessel would be in the lawful possession of the captor, but that the neutral never would be liable to English law.

WILLIAMS, J.-If the seizure in the present case had been with instructions, and by a lieutenant, and all perfectly regular, would the nationality of the Brazilian be untouched or changed?

Dr. Jesse Addams.-There might be so far an incipient conversion that it might affect the nationality; but here the detention was so unlawful, that these persons had a right to regain their liberty.

ALDERSON, B.-If there had been a domestic slave on board from Brazil, would he be made free by English law by this seizure, or would he remain a slave by the Brazilian law?

Dr. Jesse Addams.—I apprehend that he would remain a slave by the Brazilian law. With respect to the jurisdiction, I take it, that, in time of peace, jurisdiction over foreigners only arises from consent; however, it may be otherwise in time of war. It has been asked, in the course of this argument, if a Frenchman were kidnapped and put ashore in this country, and committed a crime here, would he be triable in this. country? That is a question difficult to answer; but on high principle he ought to be sent to his own country to be tried. It has been stated, that the learned Baron, at the trial, laid it down, that the mere fact of the vessel being in the possession of her Majesty's officers was sufficient to make these parties triable here; but I submit that that is not sufficient, unless that possession was a legal one.

*Dr. Harding, in reply.-The first part of the argument of the Queen's advocate that I have to answer, is, that, after the [*97 slave trade was declared to be at end, there was no limit to the right of search. By the terms of the Portuguese treaty, vessels are not to be detained, unless upon the visit there is undeniable proof that there have been slaves on board. It is said that the equipment of the vessel shows an unlawful purpose, and it may be that she has violated the treaty, but the Crown should have shown some municipal law of Brazil that has been violated. The fact of equipment may show that the vessel was engaged in an untreaty-like act, but not in an unlawful act. It has also