(tentative de meurtre). That crime was committed in this case; it was committed within the putative territory of the Union; it is justiciable by the Federal courts, and by them alone; and you may, in my judgment, rightfully demand their extradition for this cause. At the same time the convention speaks of " persons who shall be found within the territories of the other," and therefore the case comes within the letter of the convention.

It has been held in some parts of the United States that a misdemeanor is merged in a felony, and that a party guilty of the higher cannot be charged with the lower offence.

But that doctrine is losing gronnd; and it has never been held that, where an act involves two distinct felonies, the party may not be charged on either, at the election of the prosecuting officers of the Government.

I concur with Mr. Mason in opinion that the local authority of Marseilles exceeded its lawful power in the present case, in substance as well as in form.

The latter fact is implied by the new order of the Minister of Marine of June 24, 1856, regarding the visitation of foreign merchant ships in the ports of France.

This order, supplemental to those of July 26, 1832, and January 24, 1855, admits that theretofore the visitation should be made with concurrence of the consul.

It is material to observe, however, that the subject-matter of such visitation, in the face of all these orders, is perquisition into acts in violation of the laws of France. No such acts are pretended in this present case.

At the same time I do entire justice Emperor's Government in this transaction. by M. Baroche.

to the motives of the They are frankly stated

The guilty parties are subjects of other nations, which, like us, are in amity with France, who seeks only to discharge her public duty to each with perfect impartiality. It is objections of theirs, rather than his own, which M. Baroche brings to the notice of Mr. Mason. Allow me to submit two or three legal suggestions applicable to this point.

I do not conceive that another nation, Sardinia for instance, can, simply because these men are her subjects, interpose in the question

for any purpose except to see that they be lawfully tried. If a subject of Sardinia, having committed a crime in the United States, flee to France, can Sardinia justly object to his extradition? Surely not.

If indeed the Sardinian be a fugitive from the justice of Sardinia, having committed a previous crime there, and his extradition be demanded simultaneously by Sardinia and by the United States, then indeed France might be embarrassed by the conflicting appeals to her treaty engagements and her loyalty.

But this embarrassment only applies to the case regarded as a question of extradition. Taking the other and, as it seems to me, the truer view of the subject, there is no conflict of duties on the side of France; for the guilty parties have been from the beginning, and are still, in the constructive if not in the actual custody of the United States. That consideration furnishes a complete answer to the reclamations of any other Government.

Hon. Wm. L. Marcy, Sec. of State.

C. CUSHING.

NOTES TO CHAPTER XIV.

The nationality of a merchant vessel depends upon-1, the construc- Nationality of tion or origin of the vessel; 2, the owners to whom it belongs; 3, the ships. captain, and officers, and crew: Ortolan, tom. i. 180; see Wildman on Search, Capture, and Prize," chap. iii.

ships.

In some countries a territorial character is allowed to foreign mer- Territorial chant vessels in their ports-limited, however, to offences committed by character of members of the same crew against one another on board the vessel: Ortolan, tom. i. 295. In France a distinction is taken between such offences where the peace of the port is not thereby disturbed, and where they are committed against persons not forming part of the officers and crew, or by any other than a person belonging to the same, or where the peace of the port is disturbed. In acts of the first class, the French courts decline jurisdiction; in the others they assert it: Wheaton, Internat. Law, s. 102. But no such distinction exists in the English law, which exercises jurisdiction over all criminal offences committed on board foreign merchant ships in British ports.

On the question whether the vessels of a nation on the high seas are part of the territory of that nation, see some sensible remarks by Woolsey, Internat. Law, s. 54. He says that it is unsafe to argue on the assumption that they are altogether territory, but, on the other hand, they have certain qualities resembling those of territory: (1) as against

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their crews on the high seas; (2) as against foreigners who are excluded on the high seas from any act of sovereignty over them, just as if they were part of the soil of their country. Vattel considers ships on the high seas as part of a nation's territory: Liv. i. c. 19, s. 216; ii. c. 7, s. 80. As to ships of war, they are, even in foreign ports, exempt from this local jurisdiction. It seems now established both in England and America, that no vessel or other property used by the Government for public purposes, whether those purposes be military, fiscal, or of police, are subject to judicial proceedings without the consent of the Government:" Wheaton, Internat. Law, s. 63, note 63 (8th edit.): see The Lord Hobart, 2 Dods. Adm. 103; 7 Attorney Generals' Opinions, 122. Woolsey observes (Internat. Law, s. 54): “In both cases, however, it is on account of the crew rather than of the ship itself that they have any territorial quality. Take the crew away-let the abandoned hulk be met at sea; it now becomes property, and nothing more."

In R. v. Lopez, 27 L. J. (M. C.) 49, it was said, arguendo, by the counsel for the Crown, that it is a general principle of international law that a ship, public or private, on the high seas is, for the purpose of jurisdiction over crimes, a part of the territory of the country to which it belongs, and that a foreigner going voluntarily on board an English ship, and serving as one of her crew, is as amenable as a British subject on board the ships, and, like a British subject, would be liable in this country for a crime by statute 28 Hen. 8, c. 15, and 7 & 8 Vict. c. 2: see Notes to Chapter VII. on Extra-territorial Jurisdiction, p. 233. And it was contended that the same principle governs the law of America and France, in support of which the following authorities were cited: The United States v. Palmer, 3 Wheat. Rep. 609; The United States v. Holmes, 5 Ibid. 112; Vattel, book i. c. 19, s. 216; Felix, Traité du Droit Internat. Privé, ss. 544, 573; 2 Ortolan, Régles Internat. de la Mer; R. v. Depardo, 1 Taunt 26; R. v. Serva, 1 Den. C. C. 104. In R. v. Desley, 29 L. J. (M. C.) 101, it was said, per cur.: It is clear that an English ship on the high seas, out of any foreign territory, is subject to the laws of England; and persons, whether foreign or English, on board such ship are as much amenable to English laws as they would be on English soil. The same principle has been laid down by foreign writers on international law.”

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They went on board an English ship (of war), which for the purpose may be considered a floating island, and in that ship they became subject to the English laws alone:" per Holroyd, J., Forbes v. Cochrane, 2 B. & C. 464; and see per Byles, J., in R. v. Anderson, 11 Cox C. C. 205. But although merchant ships on the high seas have some of the attributes of territory, when they arrive in a foreign port they have no privilege, and are considered merely as the property of aliens.

The Court of Admiralty has jurisdiction in an action brought by a British subject against a foreign ship for a collision in foreign waters : The Griefswald, Swabey, Adm. 430.

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CHAPTER XV.

ON THE POWER OF THE CROWN TO GRANT EXCLUSIVE RIGHTS OF TRADE (1).

(1.) OPINIONS of SIR WILLIAM JONES, SIR F. WINNINGTON, and MR. J. KING, on the Statute of Monopolies, 21 James 1, c. 3, as to how far an action would lie, in the Barbadoes Courts, for seizing goods of the African Company. 1676.

An action is brought against B in the Barbadoes, upon the Statute (21 Jac. 1, cap. 3) of Monopolies, for seizing certain goods imported thither from Guinea, contrary to the immunities and privileges granted by his Majesty to the Royal African Company.

Quære 1. Whether, in this case, the action lies upon that statute for treble damages, considering the proviso that exempts all charters granted to any companies or societies, erected for the maintenance or ordering of any trade or merchandize out of that statute?

I am of opinion, that this proviso doth exempt any charter, granted to any society of merchants, for the maintenance or ordering of trade, from being within the penalty of the statute; for that proviso, as it doth not confirm such charters, but leaves them to stand and fall by the common law, so it doth not inflict any new penalty upon them: wherefore, I think, an action will not lie upon this statute for treble damages, for doing anything in execution of such charter.

in

Quære 2. If any action lies upon the statute, can it be brought any other courts but the King's Bench, Common Pleas, or Ex

(1) Some of the views expressed in the Opinions in this chapter would certainly not be considered sound law at the present day, but I have thought it right to insert the Opinions in my work, as it is interesting and useful to see the change that has taken place in the mode of regarding some of the alleged prerogatives of the Crown.

chequer at Westminster, the statute seeming to restrain the subject to those courts?

It cannot be brought within any of the inferior courts within England; but if the law of the Barbadoes doth enact all statutes made in England to be of force there (for a statute made in England doth not of itself extend to any of the foreign plantations, unless the statute doth particularly name them), then an action will lie within their courts there upon a statute made here, though confined to the principal courts here; but, upon the answer given to the first quære, I think no action will lie upon this statute, for putting in execution this charter, but it will stand or fall by the common law.

November 13, 1676.

WM. JONES.

The second quære is out of the case, by the resolution of the first; for if this statute, as to the recovery of treble damages, extends not to the Royal African Company (as I conceive it doth not), then no action can be brought in Barbadoes or anywhere else. November 16, 1676. F. WINNINGTON.

I conceive no action lies upon this statute against the Company, or any agent of theirs, for any matter done in pursuance of their charter.

November 16, 1676.

J. KING.

(2.) OPINION of the Attorney General, SIR ROBERT SAWYER, concerning Interlopers in the East Indies. 1681.

REPORT OF THE ATTORNEY GENERAL CONCERNING INTERLOPERS. In obedience to your Majesty's Order in Council of the 10th of November, whereby I am commanded to consider of the petition of the East India Company, and to report how the law stands, and whether such a proclamation may be granted as is desired: I humbly conceive that, by law, your Majesty's subjects ought not to trade or traffic with any infidel country not in amity with your Majesty, without your license; and that your Majesty may signify your pleasure therein, and require your subjects' obedience thereunto, by your royal proclamation. I am likewise of opinion, that