1845. REGINA ข. SERVA. earliest authority is the Digest (a), where, it is said, “a (a) Bk. 49, tit. 15, part 19. (d) 2 Dods. Adm. Rep. 236. the general law of nations, she is thereby subject to confiscation; but it is impossible to say that the slave trade is contrary to what may be called the common law of nations. It was until lately carried on by all the nations of Europe. A practice so sanctioned can only be rendered illegal by the consent of all the powers." (f) 10 Wheaton's Rep. 120. POLLOCK, C. B.-On occasions of this kind, cases decided in any country may be properly cited. Dr. Harding. In England the slave trade was not prohibited until the 47 Geo. 3 (g), and dealing in slaves was not made piracy till the 5 Geo. 4 (h), and I believe that there has never been a single prosecution for this species of piracy. The next consideration is, whether, if the prisoners were not pirates by the law of nations, they are so by these treaties; and this branch of the argument leads me to advert to the mode in which treaties are to be construed. On this subject Lord Chief Justice Eyre says (i), "We are to construe this treaty as we would construe any other instrument, public or private. We are to collect, from the nature of the subject, from the words, and from the context, the true intent and meaning of the contracting parties, whether they are A. and B., or happen to be two independent states." Vattel also lays it down, that treaties are no exceptions to the ordinary construction of documents (k); that penal clauses in treaties are odious (1); and that odious clauses in treaties ought to be construed strictly (m). In these treaties no means are pointed out for the trial of any person, or for their being delivered up, and no municipal law of Brazil is shewn to have made slave trading an offence, and, for aught that appears, the traffic in slaves may be as legal in Brazil as the trading in sugar. It is a lawful traffic by the law of nations, and not shewn. to be unlawful by the law of Brazil; and in the treaties there is no machinery for bringing the persons contravening them to justice; and even if the Crown could bind its subjects by a treaty, there ought to be such notice of it as to preclude the possibility of ignorance. This was adverted (9) By the stat. 47 Geo. 3, c. 36. (h) By the stat. 5 Geo. 4, c. 113, s. 9. (i) In the case of Marryatt v. Wilson, 1 B. & P. 439. (k) Lib. 2, c. 17, s. 268. (m) Id. s. 308. 1845. REGINA v. SERVA. 1845. REGINA v. SERVA. by Sir W. Scott, in the case of "The Louis;" and in a case of maliciously shooting, it was held, that where a person had committed an offence against a statute before he could have known that the statute existed, his honest ignorance of the statute was an excuse (n). ALDERSON, B.-How can a subject be bound without a law of his own state? If Brazil made the receiving of stolen goods piracy, could an Englishman be tried for that as piracy, unless the legislature of his own country made it so? Do sovereigns, by a treaty, do more than agree that each nation will, by its municipal laws, do all that is necessary to carry the treaty into effect? Dr. Harding. I next submit, that these prisoners were not carrying on the slave trade. In the case of "The Ringende Jacob" (o), it appeared, that, by a treaty of October 21, 1661, made between Sweden and England, the subjects of either power were forbidden " to sell or lend their ships for the use or advantage of the enemies of the other;" and Sir W. Scott held, that freighting a ship to the enemy was not a lending her, and added, "It is besides observable, that there is no penalty annexed to this (n) In the case of Rex v. Bailey, R. & R. C. C. 1, the prisoner was indicted, under the stat. 39 Geo. 3, c. 37, for maliciously shooting at Henry Truscott, on the 27th of June, 1799, at sea, 130 leagues from Falmouth. By the stat. 39 Geo. 3, c. 37, which received the royal assent on the 10th of May, 1799, all offences committed at sea are made liable to the same punishment as offences committed on shore here. The twelve Judges were of opinion, "that it would be proper to apply for a pardon, on the ground that, the fact having been committed so short a time after the act 39 Geo. 3, c. 37, was passed, the prisoner could not have known it." But in the case of Rex v. Esop, 7 C. & P. 456, it was held, by Mr. Justice Bosanquet and Mr. Baron Vaughan, that it was no legal defence on behalf of a foreigner, charged in England with a crime committed here, that he did not know he was doing wrong, the act not being an offence in his own country. (0) 1 Rob. Adm. Rep. 89. prohibition. I cannot think such a service as this will make the vessel subject to confiscation." Of all these persons in the present case, not one of them could be considered as in any way dealing in slaves except Serva: the others, all but Majaval, were mariners, and he was a cook. The stat. 5 Geo. 4, c. 113, divides slave trading offences into three classes; 1st, by sect. 9, the embarking slaves is to be deemed piracy; 2nd, by sect. 10, the serving as captain, mate, surgeon, or supercargo, on board a slave-ship is made a transportable offence; and 3rd, by sect. 11, the serving as a petty officer, seaman, or servant, is made a misdemeanor; so that these seamen, if British, would by an act of Parliament have been only guilty of a misdemeanor, and yet, being Brazilians, it is argued that, by force of a treaty, they are all pirates, there being in that treaty not even any provision made for the detaining them. The "Felicidade" had no slaves on board; and, under the Portuguese treaty, vessels which have no slaves on board are not to be captured or detained; and, in the case of the "Susanna" (p), Sir W. Scott says, " If you seize a neutral vessel for the purpose of examination and search, you have no right to employ that vessel as an instrument of capturing other vessels before adjudication." And if "The Echo" would not have been a prize to "The Wasp," which she would not, unless the capture was under the inspection and immediate direction of the captain of " The Wasp," it is immaterial whether the boat was the boat of "The Wasp" or not; and I submit that the boat must be taken to be the boat of the "Felicidade." I will now consider what were the legal consequences of these captures. In the case of "The Mary" (q), it was held, that an illegal capture could convey no right, and that an illegal capture can have no legal consequence attached to it, either for the benefit of those making it, or for the benefit of others who may claim through them ;" and a capture and detain (p) 6 Rob. Adm. Rep. 52. (9) 5 Id. 205. 1845. REGINA v. SERVA. 1845. REGINA v. SERVA. ing, however long, does not pass the property in the vessel, unless there is a condemnation by a court of legal jurisdiction. This appears from the cases of "The Flad Oyen"(r), "The Henrick and Maria” (s); and, in the case of Ross v. Himely (t), it was held, by the Supreme Court of the United States, that the sentence of condemnation of a court which had not jurisdiction did not change the property in a ship which had been seized. And, in the case of "The Pennsylvania" (u), it was also held by Sir W. Grant, that the master or crew of a neutral vessel were not bound to assist in carrying the vessel into port for adjudication. Mr. Justice Story, in his Conflict of Laws (x), distinctly says, that "the laws of one country can have no intrinsic force proprio vigore, except within the territorial limits and jurisdiction of that country;"" and accordingly it is laid down by all publicists and jurists as an incontestable rule of public law, that one may with impunity disregard the laws pronounced by a magistrate beyond his own territory. Extra territorium jus dicenti impune non paretur is the doctrine of the Digest (y), and it is equally true in relation to nations as the Roman law held it to be in relation to magistrates." These persons being Brazilians on board a Brazilian ship, Brazil had not ceded jurisdiction over them; and that being so, England could not have acquired it; and they owed England no allegiance. In Calvin's case (2) the different kinds of allegiance are stated, but none of them would include these prisoners so as to shew that they owed any allegiance to this country. In the case of Rex v. Sawyer (a), it was held that the allegations, that the deceased was in the peace of the king, and that the offence was committed against his peace, sufficiently shewed that both parties were the king's subjects. (r) 1 Rob. Adm. Rep. 135. (t) 1 Cranch's Rep. 279. (x) Chap. 1, ss. 7 & 8. |