any person convicted of manslaughter, shall be pu- 1820. nished in the manner provided by the act, the common law may be referred to for a definition of the offence. Neither robbery, murder, mayhem, nor many other offences, made punishable by the statute laws of the United States, are defined by those laws. The distinctions of homicide, as marked out by the common law, are unknown to the civil or Roman law. But when jurisdiction is given of murder committed on the high seas, &c. to a Court of Admiralty, the law defining the crime is to be derived from the common, and not from the civil law. It is also objected, 2. That the local jurisdiction of the Chinese empire over the offence charged by the indictment, if found by the jury to have been committed within its territorial limits, necessarily excludes the jurisdiction of the Courts of this country over the offence. U. States. v. Wiltberger. officer or mariner, to yield up or to run away with any ship a The United States v. Palmer, 3 Wheat. 626. VOL. V. 1820. U. States v. Wiltberger. To this objection, it is answered, that by the principles of universal law, a qualified national jurisdiction and immunity extends to the ships of the nation, public and private, wherever they may be. As to public vessels, this immunity is unquestionable." And even private vessels, though from the necessity of the case, subject to the revenue laws of the country where they may be, are yet in many respects exempted from the local jurisdiction. Minor crimes, which do not offend the safety or dignity of the local sovereignty, are usually left to the cognizance of the government to whose subjects the vessel belongs. Nor does this, in the slightest degree, affect the eminent domain and sovereignty of the foreign nation over its harbours and rivers. But China herself disclaims jurisdiction in such cases, and renvoys them to the forum of the offending party. The offence here, being a Vattel, L. 1. c. 19. s. 216. The Exchange, 7 Cranch, 116. Case of Nash, alias Robbins, Bee's Adm. Rep. 266. Vide ArPENDIX, Note I. b 2 Bro. Civ. & Adm. Law, 468. 484. M'Gill's case, 4 Dall. 427. United States v. Ross, 1 Gallis. 627. United States v. Smith, 1 Mason, 147. United States v. Hamilton, 1 Mason, 152. c Sir George Staunton's Translation of the Laws of China, 36. 523. The following extracts from this work were read at the argument, and it is thought their insertion here will not be unacceptable to the learned reader. "Offences committed by foreigners.(*) In general all foreigners who come to submit themselves to the government of the empire, shall, when guilty of offences, be tried and sentenced according to the established laws. The particular decisions, however, of the tribunal Lee-Fan-Yuen, (†) shall be guided committed by a citizen of the United States upon another citizen, on board a merchant vessel of this according to regulations framed for the government of the Mongol tribes. Note (*)-"This section of the code has been expressly quoted by the provincial government of Canton, and applied to the case of foreigners residing there and at Macao for the purposes of trade. The laws of China have never, however, been attempted to be enforced against those foreigners, except with considerable allowances in their favour, although, on the other hand, they are restricted and circumscribed in such a manner, that a transgression on their part of any specific article of the laws, can scarcely occur; at least, not without at the same time implicating and involving in their guilt some of the natives, who thus in most cases become the principal victims of offended justice. The situation of Europeans in China is certainly by no means so satisfactory on the whole as might be desired, or even as it may be reasonably expected to become in the progress of time, unless some untoward circumstance should occur to check the gradual course of improvement. It must be admitted, however, that the extreme contrariety of manners, habits, and language, renders some such arrangement, as that now subsisting for the regulation of the intercourse between the Europeans and the natives, absolutely indispensable, as well as conducive to the interests of both parties. Note (1) This tribunal might be stiled the office or department for foreign affairs, but its chief concern is with the tributary and the subject States of Tartary." p. 36. "The foregoing being the substance of the report of the viceroy to his imperial majesty, we have deliberated thereon, and have ascertained that, according to the preliminary book of the penal code, all persons from foreign parts committing offences, shall undergo trial, and receive sentence according to the laws of the empire: Moreover, we find it declared in the same code, that any person accidentally killing another, shall be allowed to redeem himself from punishment, by the payment of 1820. U. States v. Wiltberger. 1820. U. States v. Wiltberger. country, lying in the waters of a foreign country, which expressly disclaims jurisdiction of the case, it is dispunishable, unless it be punishable in the Courts of this country; and it appears at least questionable, whether there is any constitutional power in Congress to punish it, except in the mode already provided for, as an offence committed on the high seas. This brings us to the Sd objection, which is, that the offence was not committed "on the high seas," within the true intent and meaning of the act of April, 1790. c. 36. s. 12. In answer to this objection, it is insisted, that before the adoption of the present a fine; lastly, we find, that on the eighth year of Kien-Lung, (1743,) it was ordered, in reply to the address of the viceroy of Canton, then in office, that thenceforward, in all cases of offences by contrivance, design, or in affrays happening between foreigners and natives, whereby such foreigners are liable, according to law, to suffer death by being strangled or beheaded, the magistrate of the district shall receive the proofs and evidence thereof, at the period of the preliminary investigation, and after having fully, and distinctly inquired into the reality of the circumstances, report the result to the viceroy and sub-viceroy, who are thereupon strictly to repeat and revise the investigation If the determination of the inferior Courts, upon the alleged facts, and upon the application of the laws, is found to have been just and accurate, the magistrate of the district shall, lastly, receive orders to proceed, in conjunction with the chief of the nation, to take the offender to execution, according to his sentence. "In all other instances of offences committed under what the laws declare to be palliating circumstances, and which are, therefore, not capitally punishable, the offender shall be sent away to be punished in his own country. February, 1808." p. 523. constitution, the admiralty and maritime jurisdiction extended every where on tide waters below low water mark." The same extension has been given to the admiralty jurisdiction under the constitution." The opposite argument is founded on the expression "high seas," as contradistinguished from that portion of the sea, where the tide ebbs and flows, but which is enclosed by head lands, or forms parts of rivers above their mouths. But the celebrated statutes of Richard II., regulating the admiralty jurisdiction, allow the Admiral to have cognizance of things done on the sea, sur le meer," without the addition of high. The stat. 27 Eliz. uses the expression "main sea." The 28 Hen. VIII. c. 15., concerning the trial of crimes committed within the admiralty jurisdiction, uses the terms, " in and upon the sea, or in any other haven, creek, river, or place, where the Admiral hath, or pretends to have, power, authority, or jurisdiction." The act of Congress of 1790. c. 9. uses the terms promiscuously, "high seas," (s. 8. s. 9.) " the seas," (s. 10.) " the sea," (s. 11.) " high seas and seas," (s. 12.) The term "sea" is water, as contradistinguished from land, The term "high sea," does not necessarily import deep sea; although the classical writers frequently use the correspondent Latin word in that figurative a See authorities cited, 3 Wheat. 357. Note b, to United States v. Beyans. De Lovio v. Boit, 2 Gallis. 470. Note 47. b United States v. La Vengeance, 3 Dall. 297. The Sally, 2 Cranch, 406. The Betsey and Charlotte, 4 Cranch, 443. The Samuel, 1 Wheat. 9. The Octavia, ib. 20. c See The King v. Bruce, cited 3 Wheat. 371. Note a. 1820. U. States v. Wiltberger. |