The Sun.
London, England, 1845-11-17 00:00:00

LAW INTELLIGENCE.
COURT OF EXCHEQUER, Nov. 15.
PIRACY AND MURDER.

Mr. Sergeant MANNING (in continuation from our Afternoon
Edition of Saturday) said—
What would Admiral Blake or Cromwell have said ? _He

would now
_proceed to show how the Echo was wrongfully
eaptared. The Echo, their Lordships would recollect, was
taten by the Felicidade, after It was captured by the Wasp.
Now the treaty provided that there should be no detention
or seizure of a vessel, unless it was made by a vessel belonging
to the royal navy of the sovereign whose subjects make the
search ; nor should the search be conducted by a person of less
rank than a lieutenant. On the trial it was attempted to
show that this was a capture made by a British vessel, that
the Felicidade by its capture became a British vessel, and
therefore the capture effected by the Felicidade was a capture
by a British vessel, and the Learned Judge used the expres-
sion that she must be considered " as a boat of the Wasp.
It was rather fortunate, however, that there was adecision
of Lerd Stowell upon this point in a casesomewhat analogous
to this. It would be found reported in sth Robinson, page
41, in the ease of Melomaniac v. Coles, which arose out of a
claim for a prize, captured by a boat belonging to an ad-
miral's ship, manned by the men of that ship, but not under
commission, and it was ruled by Lord Stowell that the cap-
ture was made by a vessel belonging to the British navy.
It was expressly provided in the treaty that a ship captured
could not be considered a part of the navy of Great Britain
till such time as a condemnation had taken place in the
courts of Sierra Leone. The Felicidade heel never been con-
demned at all, having been lost in her passage to Sierra
Leone ; but even if she had been, such condemnation would
not have had a retrospective effect This defect in the cap-
ture of the Felicidade, however,did not apply to the Echo, for
she had slaves on beard when she was seized. But in the
capture of the Echo, there was a defect of another kind,
which did not apply to the Felicidade. It was provided in
the treaty that no person under the rank of a lieutenant
should search a merchant ship suspected of being engaged in
the slave-trade. Now Lieutenant Stupart did not search the
vessel in question, but it was undertaken by Thomas Palmer,
a midshipman. True, Lieutenant Stupart was in the Felici-
dads at the time, but he did not go on board the Echo till next
morning, afterTalmer had searched it. It was not sufficient
for the purposes of the treaty that Lieutenant Stupart
should be on the deck of his own vessel hard by, but it was
required of him that he should make the search and capture
in person. He (the Learned Sergeant) therefore contended
that the capture was illegal, because it was not undertaken
by Lieutenant Stupart. If the latter was to be considered the
seizing party, then he might as well have been half a mile
distant instead of a few yards. For the protection of
those engaged in commerce it was necessary that search
should not be undertaken except in rigorous compliance with
the terms of the treaty. Another point invalidating the
capture of the Echo, was that, supposing the Felicidade had,
whether rightly or wrongly, been seized and condemned, and
thereby become a part of the British navy, she had no written
instructions on board, she was not within sight of the Wasp
when the seizure was made, and there was no evidence that
the Felicidade was sent in search of the Echo. On this
ground, therefore, the treaty was violated, which
requires that the seizing vessel shall have
written instructions. If he (the Learned Sergeant) had
established any or all of those points; he maintained the
seizure was as illegal as an English cruiser seizing a French
merchant-ship in the Channel in a time of peace. Such
a seizure being evidently unlawful, the parties
so captured, without appealing to the laws of their
nations, had a clear right to rescue themselves and
the ship by force. He thought he had shown their Lord-
ships quite clearly, from the review of the facts
he had placed before them, that Macherval had a right to
regain his ship, and the other parties to &stain their liberty.
If the seizure of the Felicidade was in the first instance
illegal, then had the owner of that vessel, on the earliest op-
portunity, Without appealing to the Court of Sierra Leone,
or any other tribunal, a right to recapture his vessel, and
to use whatever force was necessary to obtain that pos-
session. He also contended that the men taken pri-
soners had a similar right to exert themselves by
force to obtain their liberty; and any other means of ob-
taining their liberty than by simultaneously rushing on Mr.
Palmer and the other seamen in charge, did not appear
practicable. In the conflict that took place Palmer was
stabbed and thrown overboard ; but under the circumstances
there was no proof that the act in question was murder.
These men in what they did had done nothing more than what
had been repeatedly performed by our ships in time of war.
- Many instances had been in which privateers captured merchant
ships, and afterwards the crew of the latter, taking advan-
tage of favourable opportunities, rose up against their con-
querors, and obtained their liberty by throwing them over-
board. If this was justifiable in the case of privateer seizures,
which were lawful, it was much more so in the present case,
where the capture had been illegal. He now came to another
of the objections he had to the conviction of these men.
As foreigners, he maintained they were not amenable to
British laws. The vessel in which these men were
at the time of this unfortunate occurrence had never
ceased to be a foreign vessel, and, therefore, in law a foreign
sail ; therefore no court of law in this country had jurisdic-
tion over it or them. Had condemnation taken place before
the slaying of Palmer, this view of the case might have been
altered, supposing the capture in accordance with the treaty,
but, as he had already shown, the vessel had never been con-
demned, having been lost in her passage to Sierra
Leone. There was a case in point that supported
the view he had just advanced. It was the case of
the King v. Depardo, given in "Taunton's Reports," vol. 1.
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 consequence 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.
The 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 Criminal 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 a British 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 hands of their
Lordships.
Mr. COLLIER rose to address the Court on behalf of the three
other prisoners, Jas. Majavul, Francisco Serve, and Marie Jose
Alves. He submitted that the courts of this country had no
jurisdiction over those for whom he appeared, as they 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 him
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 construed into an act of alle-
giance to the laws of this country. There was no doubt that
Depardo, had he been an Englishman, would have been triable
for murder, 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 seizuremust 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 were
tinder English jurisdiction at the time, he still considered 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, of which the above is but an outline, the Learned
Gentleman 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 on behalf of the prisoners.
Mr. GODSON 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 contended
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 of the case must be proved" by the pris
soners. But they say that they were confined in an im-
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 Felicidade 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 overtook
her. While Lieutenant Stupart is on board Surkeray sub-
mitted. She had no slavers on board ;itis 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 his
ship. It was insisted on the other side, that from 5 Geo. IV.,
they must have slaves on board, or have had slaves on board
that voyage ; but it is clear that to be in any way con-
cerned in the slave-trade makes him liable to treatment
as a pirate. And if so, who is so to treat him, who not?
This brings.me to the jurisdiction of the Court of Admiralty.
Novi this is over all the seas wherever the tide flows. But
without dwelling on this, here is a vessel, 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 Surkera. That Surkera did submit appears from his
refusing on this account to join the plot when requested by
Serve. Lieutenant Stupart, when he left the Felicidade to
go on board of the Echo, went with his jolly boat, and the
British ensign on her, Lieutenant Stupart being in uniform.
The Echo was taken he, 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 WOO between two ustien,s, it ip accopury