ways; by naturalization, by becoming a denizen, or by taking the oath of allegiance; but he could not, by entering on board this ship, by making a contract, not with the sovereign power, but with a company of private merchants, become amenable to our laws. If he had been on board a king's ship, in the pay of the crown, perhaps it might have been otherwise. All the obligations an alien incurs, are local and transitory. The prisoner, it is true, while on board the Blenheim, was under the protection of the King of Great Britain. But he was not domiciled at Pulopenang, where he became a volunteer; he was a prisoner of war; he was on board a ship there by compulsion, not by choice; and when he went away he had no animus revertendi. He thence goes into the dominions of the Emperor of China, and commits a crime there, for which he might have been punished by the laws of that empire; but his offence had no inception in the country in which his local allegiance for a time had been due to the King of Great Britain. If a foreigner come and live here, and then quit the realm entirely, and commit a crime abroad, this country has no jurisdiction to try him. It is impossible that a foreigner living in a country where our laws do not attach, should be amenable to our laws. The prisoner is in the same situation as if he had originally entered into the service at Canton. His contract with the merchants was void (a.)

HEATH J. The Court of Common Pleas were divided in opinion (b,) whether a prisoner of war could recover his wages on a contract to work his way home.

(a) Sed vide Sparenberg v. Bannantyne, 1 Bos. & Pull. 163.

(b) In a case of Maria v. Hall, see note, post.

GROSE

GROSE J. It was not contended in that case that the contract was void; but it was doubted whether the Plaintiff could enforce it during the war.

HEATH J. It was considered that the king might recover on that contract.

MANSFIELD C. J.

And if he did not, the prisoner might enforce it after the conclusion of a peace.

No protection was afforded to the prisoner by the laws of this country, which might impose on him the reciprocal obligation of allegiance. Neither of the caseş that will be cited of foreigners tried by virtue of 28 Hen. 8. c. 15. establishes that the prisoner's offence comes within this jurisdiction. In none of these cases had the persons indicted the benefit of counsel, and they passed sub silentio. The Admiralty Court proceeds on principles different from those of the common law. The stat. 28 Hen. 8. c. 15. merely altered the mode of trial in that court, and its jurisdiction still continues to rest on the same foundations as it did before that act; it is regulated by the civil law, et per consuetudines marinas, grounded on the law of nations, which may possibly give to that Court a jurisdiction that our common law has not (a.) The English law looks only at the place where, and the person by whom, the crime is committed; and the prisoner cannot be tried here without an extension of the known law.

Abbott for the prosecution. The deceased was a British subject; and Depardo, a subject of a state hostile to his majesty, was made a prisoner of war, and while he resided in a settlement within his majesty's dominions,

(a) Vide 3 Inst. 112.

1807.

The KING

v.

DEPARDO.

he

he received a great benefit in the permission given him to assume the character of a mariner on board an English merchant ship: whilst invested with that character, he commits this crime. His contract with the merchants was valid; he had received his bounty on entering, and part of his wages; he was under the protec tion of the laws of England, and consequently was bound to obey them. This is not the question of two co-ordinate absolute allegiances. All writers admit that though a subject cannot shake off his native allegiance, he may owe a second allegiance of a local and temporary nature. It is admitted, that if the prisoner had committed this crime in the Thames, he might have been tried for it here. He is equally amenable, though he has committed it at Canton. It is clear that the laws of every state bind those who are under the protection of them. It is admitted this statute extends to cases out of the king's dominions. The two first cases that were tried under this statute were those of Chambers, an English sailor, for the murder of an English sailor at Barcelona in Spain; and of Ealing, an Englishman, for the murder of an Englishman, at Dollars in Sweden. It is laid down by Lord Coke, that the constable and earl marshal shall try the murder of an Englishman committed by an Englishman in parts beyond the sea, 3 Inst. 48. The appeal of murder of one Englishman by another shall be tried by the constable and marshal, Staundf. 65. Thus it appears, that previously to the stat. 28 Hen. 8. there existed an authority to try the crimes of subjects committed on subjects out of the realm, though it was disused before the period at which that act was passed, 1 Hale P. C. 355. Attainder. The stat. 33 Hen. 8. c. 23. was not introductory of a new law, it only introduced a better mode of trying according to the old law, and of carrying its principle into effect, a principle consonant to the laws of all nations, that subjects, wherever they may

be,

be, are amenable to the laws of their own country. The
prisoner was, at the time of committing this offence, a
subject of Great Britain. One who receives the pro-
tection of the laws, is subject to the laws. The whole
of the treatment he received, and the engagements he
was permitted to enter into, at Pulopenang, were bene-
fits, conferred on him by the laws. Prisoners of war
were originally put to death; then condemned to per-
petual slavery; to this succeeded the system of ransom-
ing; and the practice now is to exchange them. Byn-
kershoek Quest. Jur. Pub. lib. 1. c. 1. But after an ene-
my is become a prisoner, all that he receives, is grace
and favour; his life itself is prolonged by grace and fa-
vour; it is grace and favour that he shall be tried by the
municipal laws of the country where he is a prisoner,
instead of martial law, which is more severe. He is not
then less amenable, because he happens to be out of
the realm, if he continues, as the prisoner did, under
the protection of the laws; for it will not be argued,
that if an Englishman had taken the life of the prisoner,
he could not have been tried by this commission. Every
case decided under the statute 28 Hen. 8. c. 15. is an
authority for a like decision under this act.
It is not
necessary to inquire what authority the Admiralty Courts
had before the passing of 28 Hen. S. c. 15., because the
commission under which they now sit only authorizes
them to try the offences named in that statute. That
commission would not enable them to try an alien for
the murder of an alien committed in a foreign ship. It
extends only to native subjects, or such as receive the
protection of the laws of this country; and as that sta-
tute enables the commissioners to try offences committed
on the high seas, so does the statute of 33 H. 8. c. 23.
give power to try offences committed any where without
the realm by those who are in the king's allegiance.

There

1807.

The KING

v.

DEPARDO:

There are three recent cases of the trials of foreigners for similar offences under 28 Hen. 8. The first in order of time is that of François Antoine Sauvajot; a French prisoner of war, who was indicted for the murder of Mosteau, another French prisoner of war, on board the Triton East Indiaman, upon the high seas, at the entrance of the English Channel, in September 1799. He was convicted of manslaughter, and burnt in the hand. This was a short time after the act 39 Geo. 3. c. 57. s. 1. received the royal assent (a.) The second case is that of Jean Prevót, a Frenchman, who had entered at Falmouth as a mariner on board the Lady Shore transport: he was indicted at the Old Bailey in December 1799, for "that on the high seas, within the jurisdiction of the Admiralty of England, with force and arms he assaulted and murdered Wilcox," the master of the Lady Shore, a transport. The offence was committed in August 1797, off Cape Trion in Africa, on the passage to New South Wales. He was convicted and executed. It is not known whe

ther he was a prisoner of war or not. The third case is that of Acow, a Chinese mariner, who was tried for a murder committed in May 1806, on another Chinese mariner, on board the Travers East Indiaman, on the high seas, about 20 leagues from the Azores, in the course of the homeward voyage, from which circumstances it appears that the prisoner must have entered on board that ship abroad. It is true that none of these persons had the benefit of counsel upon their trials, but they had the benefit of that humanity and discretion which suggested the propriety of the present argument. The statute of 33 Hen. 8. must therefore be construed in the same manner as that of 28 Hen. 8. And the jurisdiction given by the former, must be deemed to extend to all of

(a) That was on 10th May, 1799.

fences