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set of criminals would be estimated by two independent standards; and inasmuch as the law of England on the subject of murder is very different from any conceivable version of the law of nature on the same subject, the most grotesque results would follow.
Perhaps the very worst kind of murder, on those general principles which I suppose would constitute the law of nature, is murder by false evidence. By the law of England it is probably only a misdemeanour. Therefore, if a Frenchman in England hired an Englishman to take away a man's life in France, the Frenchman might be hung for being accessory before the fact to murder, by the law both of nature and of France, whilst the Englishman would probably be guilty, at worst, of a misdemeanour. Moreover, if a set of English boys went out to steal apples in a garden in France, and on the owner requiring them to desist, pelted him with stones, one of which killed him accidentally, they would all be guilty of murder. If all the boys but one were French, and that one were English, and if he were not the boy who threw the fatal stone, I should imagine the law of nature would say there was no murder at all; but I do not profess to know what the provisions of that law are respecting that fine distinction between felony and misdemeanour, which so often makes in our own law the difference between manslaughter and murder.
For all these reasons I do not believe that such a case as Bernard's would have been punishable as a felony by English law. It would be curious to discuss the question whether it would have been a misdemeanour. The law of conspiracy is one of the most remarkable and characteristic parts of our criminal law; but the subject is one which cannot be treated incidentally. There can, I think, be no doubt that, if my view of the law is correct, it points to a very grave defect. Indeed, it involves the consequence that, if an Englishman in London hires a Frenchman to murder another Englishman at Paris, he would not be guilty of any crime at all unless it were that of a conspiracy.
The conclusion is not a pleasant one, but I do not know that its absurdity can be alleged as any proof of its falsehood. Our law, especially our criminal law, was, in its origin, one of the rudest of all imaginable systems. It has been altered bit by bit, one glaring absurdity being removed after another for more than six hundred years. The law now in force amongst us is nothing more nor less than a revised and improved edition of Bracton. We shall not find any authoritative systematic account of it in any modern writer, and even Bracton describes nothing more than a contemporary tradition. It is obvious that a system, in which the original mode of procedure was a collection of the local rumours of hundreds and townships, in which the original mode of trial was by battle or by ordeal, and of which the original material was a strange jumble of Roman law and local tradition, could only be manipulated into a system worthy of our own time and country by the alteration of almost every single item which it contained. As these alterations were made by different people, at different times, with different objects, it follows of necessity that there is little or no system in the ultimate result; and that, if any lawyer should profess to wonder that the criminal law omits to provide for a vast number of cases for which it ought to provide, it is as if a man who had rebuilt his house by a brick at a time should affect to be surprised at its baving draughts. I am far from wishing to deny the many and most substantial merits of the criminal law; but no one who has studied it attentively can deny that, one of its principal characteristics is to be found in the number of grotesque peculiarities, and of small marks of incompleteness, by which it is pervaded. It is but forty years since wager of battle was demanded in the court of Queen's Bench. It was only last summer that it became criminal in trustees to appropriate the fortune of their cestuique trusts. It would be easy to point out many strange anomalies and harsh rules which still disfigure our system here and there; and I, for my own part, cannot profess to see any thing surprising in the fact that the law should have been suddenly discovered not to have provided for a crime of which we have never before had a precedent. Indeed, some of the ablest members of the community must have disquieted themselves in vain for many years past,
if the criminal law has not stood in great need of reform ; and it is surely a less evil to follow their good example a step further, than to conceal a patent defect by adopting a principle which would endanger the whole fabric of our liberties. To give the judges the power which would have been necessary in order to enable them to sustain Bernard's conviction, would have been like pushing a walking-stick through a sieve, by way of showing that it had no holes in its bottom.
V.-ON MARINE JURISDICTION IN TIME OF PEACE.
By H. P. ROCHE, ESQ.
[Read 12th April, 1858.]
In approaching the subject of “Marine Jurisdiction in Time of Peace,” I do not propose to make any observations with respect to those regulations of positive law which, by general consent, a nation is authorized to enforce upon foreign merchant vessels while lying in its ports and harbours, or while found within its territorial waters—namely, within the recognised limit of a marine league from its coasts. The reason for this rule is well explained by an eminent American judge :-“When private individuals of one nation spread themselves through another, as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continued infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country” (Cranch. 7, 144). General criminal jurisdictionregulations of police, of quarantine-security against danger, such as the depositing of gunpowder, putting out lights—payment of dues, the delivery up of deserters, &c.—are all matters of positive law, or express compact, which one state, under the circumstances which I have mentioned, can lawfully enforce against the vessels of another. In the recent case of the Cagliari, the Neapolitan authorities assert that the Sardinia steamer, whilst under the command of the insurgents, had violated the quarantine regulations of the Sicilian government which were in force at the island of Ponza. If this were so, the Neapolitan authorities, for a mere breach of a municipal regulation, had clearly no right to capture the Cagliari when it was upon the high sea, and subject to no jurisdiction but that of the state under whose colours it was sailing.
The first question which has to be considered is, whether a state for its own objects has, in time of peace, authority to exercise rights which undoubtedly belong to it in time of war.
First, as to the right of search. As a general rule the right of visitation and search does not exist in time of peace except under the provisions of particular treaties. “Although the slave trade is now prohibited by the laws of most civilized nations, a vessel engaged in the slave trade, even if prohibited by the laws of the country to which she belongs, cannot for that cause alone be seized on the high seas, and brought in for adjudication in time of peace in the courts of another country. But if the laws of that other country be violated, or the proceeding be authorized by treaty, the act of capture is not in that case unlawful” (The Antelope, 9 Wheaton's Reports). Again, " The right of visitation and search upon the common and unappropriated parts of the sea cannot be exercised in time of peace; the belligerent claim is the only foundation of that right. Where there is no right to visit and search, there can be no right to seize and bring in for adjudication; for a seizor cannot take advantage of discoveries produced by his own unlawful act of seizing” (Le Louis, 2 Dodson's R., 210). In short, the right does not exist in time of peace, independently of special compact.
It is well known that another incident of the right of visitation and search-the impressment of seamen—the recovery of British seamen by British cruisers from neutral vessels at
sea—at all times and under all circumstances, has been a serious cause of difference between this country and the United States of America. The rule which the United States government has consistently maintained—once, at the cost of a war-has been thus described by two American statesmen. Mr. Jefferson stated—“The simplest rule will be, that the vessel, being American, shall be evidence that the seamen on board are such ;” and Mr. Webster, during the negotiations which preceded the Ashburton Treaty of 1842, expressly declared that_“In every regularly documented American merchant vessel, the men who navigate it will find their protection in the flag which is over them."
The next question is, as to the extent of territorial jurisdiction which a state lawfully possesses in the waters of the adjacent seas.
The rule of public law is, that “every nation has exclusive jurisdiction to the distance of a cannon-shot, or marine league, over the waters adjacent to its shores, and such shores are part of the territory of the sovereign" (1 Gallison's R., 62). The municipal laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens. They can have no force to control the sovereignty or right of any other nation within its own jurisdiction (9 Wheaton's R, 362). The recent capture of the filibuster Walker and his confederates at Puentas Arenas, affords an example of the respect with which a great maritime power—the United States—regards the territorial jurisdiction of another nation. Although Commodore Paulding had dispersed a nest of pirates, and had sent them back to their own country to undergo trial—his object being to put a stop to that practice of private war which appears to be disgracefully popular with some portions of the United States citizens—the gallant officer was nevertheless reprimanded, and superseded by his government, in compliance with a report of the committee of foreign relations of congress, because he had violated the territory of New Granada—an act of which the authorities of that republic highly approved.
Vattel says that the domain of a nation extends to all its