The Sun.
London, England, 1845-11-15 00:00:00

r run s trx, L-ONDON, SATUttnAY

Leone. There was a case in point that supported
the view he had just advanced. It was the ease of
the King r. Depardo, given in. "Taunton's Reports," vol. I,
The case was tried at the Old Bailey on' the 30th of October,
1807. Depardo •was a Spaniard, engaged in the Alnwick
Castle ship, who killed a person named Burn, on shore at
Canton. The wound was inflicted on shore, but Burn died
in mnsequence of it on board ship immediately after-
Wards. In' that case it was ruled, that the offence being
committed by a foreigner, and beyond the jurisdiction of this
realm, the courts of this country had no jurisdiction.
Tile Learned Counsel then referred to another case
of a similar- character in its main treatment,
that of a Maltese who killed a man at Smyrna, It was given
in 2d Mudie's Crown Cases. The trial took place in 1843, at
the Central C:iminal Court, before Mr. Baron Gurney. It
was then ruled, in an appeal to the Judges against the con-
viction, that the Court had jurisdiction, because the prisoner
in the case, though a Maltese, was aßritish subject, and there-
fore subject to the British laws. These decisions placed the
question of jurisdiction in a clear light, and with these he
closed his argument, leaving the case in the bands of their
Lordships.

Couciel then rose to address the Court on behalf the three
other prisoners, Jas. Majvanl, Francisco Serva, and Marie Jose
Alves. He submitted that the courts of this country had no
jurisdiction over those for whom he appeared, as thy were
foreigners, and had never, by any act of theirs, given in
their adherence or allegiance to the Government of this
country. Before any person can be subject to the laws
of this country he must do that which will bring bins
under allegiance to the Sovereign of the country. The
mere coming into the country was not sufficient to
constitute allegiance, but the party must likewise become so
by some act, such as the law recognised as a social compact
between him and the Government. This was the view of the
question taken by all eminent jurists, by Vattel, Montesquieu,
Story, and others who had written on the laws of nations.
Now, there had been no evidence that his clients had ever
done anything that could be cor.strued into an act of alle-
giance to the laws of this country. There as no doubt that
Depardn, had he been an Englishman, would have been triable
for osurder, but not being so, he was considered not amenable
to the laws of Great Britain. Even admitting that the slay-
ing of Palmer was an act of murder, the prisoners charged
with it being foreigners, had no right to be tried by the tri-
bunals of this country, But the case was much stronger
against this jurisdiction, when it appeared, as he maintained
it did, that the Felicidade was a foreign vessel at the time of
her seizure. Piracy, he admitted, was a crime for which,
according to the laws of nations, the perpetrators of it
could be attacked by any vessel, and under any circum-
stances. Pirates were robbers of the seas, and subject
to be destroyed by any ships that might come
upon them. But the slave trade had never been criminally
considered piracy. It could alone be made such by treaty,
and then an act of piracy was to be declared only when a
ship was found having slaves actually on board. The
Learned Counsel here went through the clauses of the treaty,
showing that only ships of the navy belonging to the con-
tracting nations were competent to search vessels; that offi-
cers of a certain standing must have the charge of such
searches and seizures, and that all such ships should
carry written instructions. The terms of the treaty
were clear and explicit. No seizure could take place without
special instructions, and then the seizure must be made where
slaves were found on board. If officers of the Navy were
to be allowed to capture ships merely because they were fitted
up for slave traffic, or to man what ships they pleased as
cruizers in pursuit of suspected ships, nothing but confusion
and bloodshed would repeatedly ensue. It had been so in the
present case. The stipulations had been violated by
Lieutenant Stupart in the seizure of the Felicidade,
and the owner of that ship, with his assistants,
had been tempted to make resistance afterwards to the crew
that captured them, because of its inefficient force. This fact
was itself sufficient to show that the seizure must have been
undertaken without sufficient force and in a manner that
could not have been intended by the treaty. The Felicidade
being, therefore, an illegal capture, it followed that the using
of that ship under the circumstances to take the Echo was also
illegal. The Learned Gentleman then went over the points dwelt
on by the previous Learned Counsel respecting the searching
of the Echo by Palmer and the proceedings of Lieutenant
Stupart; all of which, he contended, were in contravention
of the terms of the treaty. Assuming even that these men
under English jurisdiction at the time, he still considerod that.
they had been unlawfully taken prisoners, and therefore
justified in endeavouring by forcible means to obtain their li-
berty. Having recapitulated the principal heads of his
argument in which the above is but an outline. The Learned
gentlemen concluded by expressing, that from all the facts
of the case interpreted by the laws of nations, and the writ-
ings of the highest legal authorities, the courts of this coun-
try possessed no such jurisdiction as had been exercised in
the case under the consideration of the Court.
This closed the argument in behalf of the prisoners.
Counsel on the part of the Crown, said he was sur-
prised that not one of the positions urged upon the treaty
had been touched this morning. It had been contenled
on the trial, that the treaty of which so much had been
made this morning was not in existence at the time. Now,
it is necessary that the fact of the death being proved, all
the necessities and informations of the case must be proved
by the prisoners. But they say that they were confined in
an ire proper place, in a place to which the English have no
right, and therefore used violence for escape. That is no excuse
for killing. I shall prove that the Felicidate was legally taken.
as well as the Echo. Captain Usher having instructions
from her Majesty, and sailing in those seas, sends two boats
on board this slaver. The boats followed till they overtoek
her. While Lieutenant Stupart is on board Sirkenda sub-
mitted. She had no slavers on board ; it is a question whe-
ther he therefore ought to have detained her. He argued,
from the treaty with Brazil, that after 1830 it was piracy for
any Brazilian subject to be taken With slaves on board. It
was insisted on the other side, that from 5 G. 4 they must
have slaves on board, or have had slaves on board that
voyage; but it is clear that to be any way con-
cerned to the slave trade makes liable to treatment
as a pirate. And if so, who is to treat him, who not
This brings me to the jurisdiction of the Court of Admiralty.
Now, this is over all the seas wherever the tide flows. But
without dwelling on this, here is a result, which, under the
treaty subjects herself to the charge and punishment of
piracy. The sth Geo. IV., is, after March, 1830, applicable
as appears from the plain words of the Act, and from the
construction put by Parliament on measures between Eng-
land and Brazil in 8 and 9 Victoria. The concern in the
trade is illegal ; but, as his Lordship on the trial found, they
were going for a cargo of slaves to Africa, thus subjecting
themselves to the punishment of piracy. The Portuguese
treaty ended in March, in the year 1820, and
if any informality existed in the taking, yet the vessel
was in possession of the Queen's officers by the submission
of Siakera. That Surkera did submit appears from his
refusing on this account to join the plot when requested by
Serva. Lieutenant Stupart, when he left the Felecedade to
Bo on board of the Echo, went with his jolly. boat, and the
ritish ensign on her, Lieutenant Stupart being in uniform.
The Echo was taken by a British vessel, under a British
lieutenant, and under instructions which existed on board
the Wasp, from which the boat came. The objec-
tions taken on the other side go for nothing.
It has been said, and I agree with it, that: when a
treaty has been made between two nations, it is necessary
that some Act of Parliament should be passed, giving power
to carry the Act out. All I contend for here is that she
was legally taken—that all the circumstances and requisites
of the treaty were performed. What should be done with
them, there is no doubt of that at all. But it is not for those
taken to say, while in custody, the place of custody does
not belong to the person taking into custody, and,
under that, make violent efforts to escape. As to
the instructions, they certainly accord with the
treaty, and with the: Act of Parliament after 1830. Let
us look at it as a case of piracy independently. Here an
officer of her Majesty is in possession of a ship by her
master's submission. The men on board conspire to com-
mit piracy, and in committing that act kill an English-
man. It is laid down by Lord Coke that piracy against
England, or an English vessel, or that of an alien, is punish-
able. The case may gol further. Piracy is a crime with all
nations' now on the waves, over which the jurisdiction
of the Admiralty Court extends. This vessel and the
the jolly-boat were flo..ting, and on board of that vessel the
crew conspire to commit piracy, to which Sirkera objects,
and commits murder—are they to be justified ? The counsel
quoted the case of the King r. Sawyer, to show that stopping
short of land on the high seas on board of a vessel in posses-
sion of one of her Majesty's officers, parties are answerable
for their crimes. To take up the narrowest point, it is con-
, tended that being in custody in an illegal place, then that
in cool blood, murder may be concocted and perpetrated
against the custodiers. It is but necessary to state the
objection to see the monstrosity of it; and no authorities had
been quoted in support of it. lake the case any way we may,
I think I have made out that munier has been committed.
The Learned SERGEANT rose to reply. He was amazed
that his Learned Friend should contend that the Queen can
legally come into possession by a wrongful act. It is said
the Sovereign can do no wrong, but these acts,
though done by officers in her Majesty's service,
being their acts, and not the acts of the Crown,
and being wrong, can vest nothing in the Crown
whatever. The Echo was not taken by a British vessel, for
by treaty the Felicidade was not the property of England
and Brazil till sold, when she might be purchased by either.
The Echo was, in fact, taken by the Felicidade, notwithstanding
that the captors left by the English jolly-boat to go on board.
The lieutenant left the Felicidade to go on board the Echo,
but she in being hailed, sheered off, and was not taken
till the followidg night. She was not taken
by Lieutenant Stupart, but by another person sent by him,
whereas the treaty compels the taking by a lieutenant in
uniform. The. Learned Sergeant held there were no instruc-
tions on beard the Wasp, and if there had been, they would
not have availed. There were no instructions, if
those on board were bad. Now the treaty requires
that instructions be put on board inhibiting the
detention of Brazilian vessels by British officers, unless
with slaves on board. But instructions were put on board
to the effect that they should detain on suspicion of being
concerned in the slave trade.
The Learned CinEF BARON—The objection taken was that
there were no instructions on board of the Felicidade. The
Learned Chief Baron understood from the counsel that:these
Portuguese treaties of 1826 ended iu 1830. By the treaty
with Portugal the slave trade was only partially put an end
to. By the treaty with Brazil it was declared piracy.
The Learned SERGEANT here read from Bth and 9th Victoria
to show that the mixed Commissions at Rio Janeiro, and Sierra
Leone, ending on the 12th March, 1845, were extended by
mutual agreement of both Governments for six months
longer. As to the Felicidade, there is no pretext for confound-
ing the 'provisions of the sth Geo. IV. with those of
the treaty of 1836. The words of the treaty are
—the carryind on:of the slave trade, under which terms he
submitted the present offence could not be brought. . He had
no intention to differ from the dicta quoted on Homicide.

—One of their Lordships remarked that was nothing as to
the place where the case was to be tried.
The Learned Sergeant argued and submitted the Felicidade
was not the property of the English Government. It has been
suggested that there was a locus penitentin, but that there
was no evidence of any desistance from the purpose ; but the
Learned Sergeant suggested that the locus penitentia3 did
not end till the slaves were on board.
Prisoners Counsel said, under no circumstance is a person
subject to the laws of a country who has not, by some
act, complied with them. This proposition has not
been haken. He would not say more of the distinc-
tion, as to prisoners of war. It has never been decided
in any case that any person on board an English vessel is
therofore subject to Engtish laws. It is claimed on the other
side to "extend the jurisdiction of England over the high
seas to the exclusion of other nations. This can never be done.
Surkera's submission was to superior force, and gives no
jurisdiction ; hekhrew his arms overboard when he surren-
dered. It is not shown that the jolly-boat from which the
Echo was taken was the jolly-boat of the
Felicidadelgahe [capture under the circumstances
was illegal. he boat was on board the Felicidade. Any
English captainlmight evade the treaty by sending a boat's crew
to any number he pleased on board English merchantmen; thus
givingthem a legality to capture; that is, if the capture
be in this case thought lawful. As to the instructions
those pointed out in the treaty of 1826 are by the treaty with
srsri" that if these instructions are not changed, they should
,--ee fifteen years after the slave trade was
remain 1.. these 'ending only on 13th March,
abolished, anot in February, the instructions of
1845.; and this case occu.. fi must lae prpved
of 1826 were at the time in force. ---n_ &IA in al, the
that if a captain unlawfully detain a seam., -

case is murder.
be ►nurder.

lie quoted to the effect that it would not

' Prisoners' Counsel having now concluded, the Court rose
at a coarter to four o'clock.
The Count will sit again on the same cause at two o'clock
on Saturday text.

BANKRUPTCY.-(TMS DAY.)
(Before Mr. Commissioner GOULBOURN.)
IN RE CAMPBELL.

This insolvent is a clerk in the merchants'-office, Custom-
house, and came up for his interim order, which was opposed.
The insolvent not being present at the hour appointed, an
application was made to dismiss the petition.
The Learned CommtssioNEß said he would adjourn the
hearing sine die.
The Learned COMMISSIONER in a previous case held, that.
when a defendant was let out of custody, and obtained his
interim order, non• attendance was not .a ground of commit-
ment. In the present case the insolvent not having been in
custody, could not be committed.
The insolvent arrived shortly after, and it was agreed to go
on with the case. The principal ground of opposition was
that the insolvent had not paid the expenses of the funeral of
his uncle, from whom, previously to his death, he had received
a large sum of monoy.
Ttx insolvent said his debts were 213/. lie had a wife and
two children and an aged mother to support, and his salary
was. only 901. a-year.
The (OMMISSIONER said that he could not make any order
to apply any part of so small a salary.
The opposing creditor bald that the salary was a rising
one.

The insolvent said that he had been an extra clerk at 255.
per week, and that his present salary would not be increased
for three years—perhaps not thenand his salary would then
be raised 101. a-year. He admitted having received 23:1.
from his uncle nine months before his death, and had paid it
away to different creditors.

Tne creditor said it was very hard that the money should
have been given to the insolvent who had spent it, leaving
funeralexpelses unpaid.
_ _

The insolvent said that the remainder of the money left
was so small that he did not think it prudent to administer.
The Learned COMMISSIONER said the insolvent appeared
to have given a clear account of the disposal of the money,
and considering that he was pressed by circumstances, he,
(the Learned Commissioner) would grant the interim order.

TO CORRESPONDENTS.

R. D.—Yes.

NAVAL INTELLIGENCE.

PouTsmotrrit, Nov. 14.—Her Majesty's steam.eloop Geyser
Commander E. Carpenter, arrived at Spithead yesterday afternoon,
from Malta and Gibraltar. She had not a particle of news, the
usual mail having announced that she was on her passage to Eng-
% ri . Some supernumeraries and invalids have been transferred
the.llag.ship, and the Geyser has been ordered by telegraph to
proceed to Woolwich to be paid off, having been nearly four yeats
in commission.

The Dee steamer, and an Ordnance vessel, arrived yesterday
froom Woolwich, having the field guns and ammunition to be
shipped on board her Majesty's ship President, for conveyance to
the Cape of Good Hope or Mauritius, as may be required. Rear-
Admiral Dacres, his family and suite, have embarked this day, and
the Admiral having got his sailing orders, the President will put
to sea to-morrow. Rear-Admiral Dacres is to relieve Rear-Ad-
miral the Hon. J. Percy in the command at the Cape of Good
Hope, and that officer will return to England forthwith in her Ma-
jesty's ship Winchester.

_ .
The second trial of the Scourge steamer with the 13-inch mor.
tar and 56-pounder long gun took place yesterday, and was of
much longer duration, but equally satisfactory as the first trial.
She left the harbour at 9 .at., with a number of officers from the
Excellent, and Naval College, and seamen gunners (the Marine
Artillery were dispensed with). Captain Chads, C. 8., again had
the direction of the proceedings, and Captain Stevens, R. M.A.,
and Mr. Taplin, engineer and mechanist of the dock-yard, were on
board to attend to the engines, &c.
On getting outside the Nab Light the shell practice commenced,
and fourteen shells, with a full charge of 201bs. of powder, were dis-
charged from the mortar, the range was nearly 5,000 yards ; not the
slightest impediment in the steering of the vessel, or in the working
of the engines, took place ; she was kept under steam all the time,
but the precaution was taken of moving the men from the after
wheel to the midship wheel. The result of the shell practice
being most conclusive and satisfactory, the Scourge was anchored
and the people went to dinner. After this was concluded, two
boats were carried out 3,000 yards from the vessel, and moored
about 150 yards apart, and the practice at them a ith the 56-
pounder gun commenced, the full charge of 14Ibs. of powder was
used, and 42 shots were fired with great precision, but without
striking the boats, the shot pitching close to them at every fire ; this
concluded the experiments for the day, and the boats having been
got on board, the Scourge returned to the harbour about six o'clock
in the evening. The shell room and magazines were admirably
worked, and Captain Chads expressed to the officers and seamen
his high approval of their skill and eircipline. Not a single ca-
sualty took place. The Scourge is in harbour, and will doubtless
be soon put in commission, and if two carronades are added to her
present armament, she will be a most formidable vessel, as she is
very swift.
A general garrison court-martial has assembled this day in the
mess-room of the Royal marine barracks, for the trial of Second
Lieutenant George Sheddon Dunbar, Royal Marines, charged with
" ungentlemanly conduct on the afternoon of the 39th October
last, being in a state of intoxication at the Victualling-store
Barracks." The following officers compose the Court :—Presi-
dent, Colonel John M'Callum, Royal Marines; Lieut.-Colonel
E. J. Crabbe, 74th Regiment; Lieut.-Colonel Gibsone, Royal
Marine Artillery; Major J. J. Willes, Royal Marines ; Major
IL Smyth, 68th Light Infantry; Major J. Fordyce, 74th Regi-
Trent ; Captain W. L. Dawes, Royal Marines; Cal tain the
Honourable F. O'Grady, 74th Regiment; Captain W. G. Gillman,
68th Light Infantry ; Captain P. J. J. Dusantoy, Royal Marinesl;
Captain H. Evans. Royal Marines ; Captain J. R. Wesley ;
Royal Marine Artillery; Captain J. F. Holmes, Bth Regiment;
Lieutenant C. J. Hadfield, Royal Marines; Lieutenant F.
W. Evans, 74 Regiment. Lieutenant and Adjutant Langley,
Royal Marines, officiating as Judge Advocate. The Court have
this day been examining witnesses in proof of the charge. The
prisoner will be allowed until to-morrow or Monday to prepare his
defence. The proceedings and sentence will be laid before the
Commander-in-Chief, before the result is known to the public.
Lieutenant Dunbar is a son of the late Captain Sir J. Dunbar,
Bart., Royal Navy, and has only been in the MArine corps since
March, 1842.
SHEERNESS, Nov. 13.—The Eclair steam-sloop, Lieutenant
commanding C. Harston, steamed down from Standgate Creek,
and took up moorings in the harbour on Tuesday. Having
had all her stores surveyed and delivered, she was paid off
into ordinary this day, two of the men suffering from
the effects of the . fever, having been previously dis-
charged to sick quarters. We have heard it stated that
Sir William Burnett's solution (chloride of zinc), which was
latterly used in cleansing the Eclair, has been found a valuable
disinfecting substance. Lieutenant Harston is to be immediately
promoted to the rank of Commander. The Eclair is to remain at
her moorings with open hatches, and without the usual ship.keepers,
for seine time.

"7. That we also earnestly recommend the setting the
people to work without any delay, by urging on and assist-
ing the construction of railways, and also in works of drain-
age, as recommended by Government commissioners, and
other works of general or local utility.
" I have the honour to be Sir,
" Your obedient servant,
" CLONCURRY."
" Whitehall, Nov. 10, 1845.
" Dly Lord,—l have the honour. to acknowledge the re-
qeipt of the communication of the 7th November, which
bears lour Lordship's signature, earnestly calling the atten-
tion of her Majesty's Government to the calamity with which
Ireland is threatened by the failure, through disease, of the
potato crop, and suggesting fur the consideraion of the
Government the following measures :
‘" 1. The opening of the ports of Ireland for all kinds of
human food, free of duty.

7 " 2. Theclo,ing 411;e ports of Ireland against the ex-
portation of oats, either ground or whole.
" '3. That the consumption of oats by cavalry regiments
in Ireland be . diminished as much as it possibly can with
safety to t he public service.

'4. That the distillation from grain be suspended in Ire-
hmd, due precaution being taken to prevent illicit distillation.
",5. That there be immediately raised money, by way of
loan, to the extent of one-and-a. hallmillion at the least, and
Chargeable upon Irish resources, such as the department of
Woods and Forests, &c., and the amount of such loan be ap-
plied in the first instance to the increasing the quantity and
decreasing the price of food in Ireland.
" ' 6. The forming of granaries in each of the poor-law
unions and other localities throughout Ireland, so as to bring
food within the reach of all its inhabitants.
_ _

," 7. The setting the iieoplei;-;awithout any delay,
by urging on and assisting in the construction of railways,
and also in the works of drainage, as recommended by the
Government Commissioners, and other works of general or
local utility,
" I give full credit to the assurance that in making this
communication, your Lordship and thozn who are parties to
it are influenced by no other motive than the desire to aid
the Government in the efforts which they are making to
avert or mitigate the impending evil.
. " I shall without delay submit this, as I have submitted
all other representations which have reached me on this
painful subject, to my col'eagues in the service of her
Uajesty.
" Although considerations of public policy and of public
duty prevent me from entering, in this acknowledgment of
y our Lordship's communication, into a discussion in respect
to the advantage of the particular measures recommended
for immediate adoption, yet I beg so assure your Lordship
that the whole subject is occupying the unremitting atten-
tion of her Majesty's confidential advisers.—l have the
h onour to be, my Lord, your most obedient servant,

" ROBERT PEEL.

" The Lord Cloncurry."

FRIDAY NIGHT S GAZETTE.
WHITEHALL, Nov. 12, 1845.
The Queen has been pleased to order a congd d'elire to the
Dean and Chapter of the cathedral church of Oxford, em-
powering them to elect a Bishop of that see, the same
being void by the translation of the Honourable and Right
Reverend Father in God Dr. Richard Bagot, late Bishop
thereof, to the see of Bath and Wells; and her Majesty has
also been pleased to recommend to the said Dean and Chapter,
Samuel NN'ilberforce, Doctor in Divinity, now Dean of the
oollegiate church of Saint Peter Westminster, to be by them
elected Bishop of the said see of Oxford.
FOREIGN-OFFICE, Nov. 13.
The Queen has been pleased to approve of Mr. Frederick
J. Bush, as Consul at Hong-Kong for the United States of
America.