§ 15. Extra-ter nal sen mutual comity, or upon special compact between different nations.31 A criminal sentence pronounced under the municipal law ritorial in one state can have no direct legal effect in another. If it operation is a sentence of conviction, it cannot be executed without of a crimithe limits of the state in which it is pronounced upon the person or property of the offender; and if he is convicted of an infamous crime, attended with civil disqualifications in his own country, such a sentence can have no legal effect in another independent state.32 tence. But a valid sentence, whether of conviction or acquittal, pronounced in one state, may have certain indirect and collateral effects in other states. If pronounced under the municipal law in the state where the supposed crime was committed, or to which the supposed offender owed allegiance, the sentence, either of conviction or acquittal, would, of course, be an effectual bar (exceptio rei judicata) to a prosecution in any other state. If pronounced in another foreign state than that where the offence is alleged to have been committed, or to which the party owed allegiance, the sentence would be a nullity, and of no avail to protect him against a prosecution in any other state having jurisdiction of the offence. It follows as a corollary from these principles, that the practice of delinquents flying from one jurisdiction into another, for the purpose of obtaining a milder punishment or an acquittal in the tribunals of the country where they seek refuge, is wholly unsanctioned by international law and the approved usage of nations.33 The judicial power of every state extends to the punishment of certain offences against the law of nations, among which is piracy. 31 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 22. Note to Duponceau's Transl. p. 174. 32 Martens, Précis, &c., liv. iii. ch. 3, § 86. Kluber, Droit des Gens Moderne de l'Europe, pt. ii. tit. 1, ch. 2, §§ 64, 65. 33 Henry on Foreign Law, pp. 46, 47. Piracy is defined by the text writers to be the offence of hot a clear depredating on the seas, without being authorized by any sovereign state, or with commissions from different sovereigns at war with each other.34 The officers and crew of an armed vessel, commissioned against one nation, and depredating upon another, are not liable to be treated as pirates in thus exceeding their authority. The state by whom the commission is granted, being responsible to other nations for what is done by its commissioned cruisers, has the exclusive jurisdiction to try and punish all offences committed under colour of its authority.3 The offence of depredating under commissions from dif- for clear ferent sovereigns at war with each other is clearly piratical, since the authority conferred by one is repugnant to the other; but it has been doubted how far it may be lawful to cruise under commissions from different sovereigns allied against a common enemy. The better opinion, however, seems to be, that although it might not amount to the crime of piracy, still it would be irregular and illegal, because the two co-belligerents may have adopted different rules of conduct respecting neutrals, or may be separately bound by engagements unknown to the party.36 Pirates being the common enemies of all mankind, and all nations having an equal interest in their apprehension and punishment, they may be lawfully captured on the high seas by the armed vessels of any particular state, and brought within its territorial jurisdiction for trial in its tribunals.37 34 See authorities cited in Note to the case of United States v. Smith, Wheaton's Rep. vol. v. p. 157. 35 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 17. Rutherforth's Inst. vol. ii. p. 595. 36 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 17, Duponceau's Transl. p. 130. Valin, Commentaire sur l'Ord. de la Marine. "The law," says Sir L. Jenkins, "distinguishes between a pirate who is a highwayman, and sets up for robbing, either having no commission at all, or else hath two or three, and a lawful man of war that exceeds his commission.”—Works, vol. ii. p. 714. 37 "Every man, by the usage of our European nations, is justiciable in the place where the crime is committed: so are pirates, being reputed out of Distinction between nations This proposition, however, must be confined to piracy as piracy by defined by the law of nations, and cannot be extended to the law of offences which are made piracy by municipal legislation. Piand piracy racy under the law of nations may be tried and punished in under mu- the courts of justice of any nation, by whomsoever and nicipal statutes. wheresoever committed; but piracy created by municipal statute can only be tried by that state within whose territorial jurisdiction, and on board of whose vessels, the offence thus created was committed. Thus the crimes of murder and robbery committed by foreigners, on board of a foreign vessel, on the high seas, are not justiciable in the tribunals of another country than that to which the vessel belongs; but if committed on board of a vessel not at the time belonging, in fact as well as right, to any foreign power or its subjects, but in possession of a crew acting in defiance of all law, and acknowledging obedience to no flag whatsoever, these crimes may be punished as piracy under the law of nations in the courts of any nation having custody of the offenders.38 § 17. Slave The slave trade, though prohibited by the municipal laws trade, whe- of most nations, and declared to be piracy by the statutes of ther prohi- Great Britain and the United States, is not such by the gebited by the law of neral international law, and its interdiction cannot be enforced by the exercise of the ordinary right of visitation and search. That right does not exist in time of peace, independently of special compact.39 nations. The African slave trade, once considered not only a lawful, but desirable branch of commerce, a participation in which was made the object of wars, negotiations, and treaties between different European states, is now denounced as an odious crime by the almost universal consent of nations. This branch of commerce was successively prohibited by the municipal laws of Denmark, the United States, and Great the protection of all laws and privileges, and to be tried in what ports soever they may be taken."-Sir L. Jenkins' Works, ib. 38 Wheaton's Rep. vol. v. pp. 144, 184. United States v. Clintock, United States v. Pirates. 39 Dodson's Adm. Rep. vol. ii. p. 210. Le Louis. Wheaton's Rep. vol 1. p. 66. La Jeune Eugenie. Britain, to their own subjects. Its final abolition was stipulated by the treaties of Paris, Kiel, and Ghent, in 1814, confirmed by the declaration of the Congress of Vienna of the 8th of February, 1815, and reiterated by the additional article annexed to the treaty of peace concluded at Paris on the 20th November, 1815. The accession of Spain and Portugal to the principle of the abolition was finally obtained by the treaties between Great Britain and those powers of the, 23rd September, 1817, and the 22nd January, 1815. And by a convention concluded with Brazil in 1826, it was made piratical for the subjects of that country to be engaged in the trade after the year 1830. and Ame courts of justice. This general concert of nations to extinguish the traffic Decisions has given rise to the opinion, that, though once tolerated, and of British even protected and encouraged by the laws of every maritime rican country, it ought henceforth to be considered as interdicted by the international code of Europe and America. This opinion first received judicial countenance from the authority of the judgment of the Lords of Appeal in prize causes, pronounced by Sir W. Grant in the case of an American vessel, the trade having been previously abolished by the laws of the United States as well as of Great Britain. The trade having been thus prohibited by the laws of both countries, and having been declared to be contrary to the principles of justice and humanity, the court deemed itself authorized to assert that it could not, abstractedly speaking, have a legitimate existence, and was, primâ facie, illegal, upon principles of universal law. The entire burden of proof was thus thrown upon the claimant to show that by the municipal law of his own country he was entitled to carry on this traffic. No claimant could "be heard in an application to a court of prize for the restitution of human beings carried unjustly to another country for the purpose of disposing of them as slaves."40 The principle of this decision was subsequently questioned by Sir W. Scott (Lord Stowell) in the case of the Louis, a French vessel, captured by the British cruiser as having been engaged in the slave trade. In this case it was held that the 40 Acton's Rep. vol. i. p. 240. The Amadie. trade could not be considered as contrary to the law of nations. A court of justice, in the administration of law, could not impute criminality to an act where the law imputes none. It must look to the legal standard of morality—a standard which, upon a question of this nature, must be found in the law of nations, as fixed and evidenced by general, ancient, and admitted practice, by treaties, and by the general tenor of the laws, ordinances, and formal transactions of civilized states; and looking to these authorities, the learned judge found a difficulty in maintaining that the transaction was legally criminal. The slave trade, on the contrary, had been carried on by all nations, including Great Britain, until a very recent period, and was still carried on by Spain and Portugal, and not yet absolutely prohibited by France. It was not, therefore, a criminal traffic by the consuetudinary law of nations; and every nation, independently of special compact, retained a legal right to carry it on. No one nation had a right to force the way to the liberation of America, by trampling on the independence of other states, or to procure an eminent good by means that were unlawful; or to press forward to a great principle, by breaking through other great principles that stood in the way.41 A similar course of reasoning was adopted by the supreme court of the United States in the case of Spanish and Portuguese vessels captured by American cruisers whilst the trade was still tolerated by the laws of Spain and Portugal. It was stated, in the judgment of the court, that it could hardly be denied that the slave trade was contrary to the law of nature. That every man had a natural right to the fruits of his own labour, was generally admitted; and that no other person could rightfully deprive him of those fruits, and appropriate them against his will, seemed to be the necessary result of this admission. But from the earliest times war had existed, and war conferred rights in which all had acquiesced. Among the most enlightened nations of antiquity, one of these 41 Dodson's Adm. Rep. vol. ii. p. 238. See also the case of Madrazo v. Willes, determined in the Court of King's Bench in 1820. Barnwell and Alderson's Rep. vol. iii. p. 353. |