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![handle is hein.slavery/ssactsengr0179 and id is 1 raw text is: THE KING V. DEPAIRDO
The Court. The entry of bail relates generally to the term, the effect of which
must be, that the action, though properly commenced, will be defeated. There can be
no reason why, for the purpose of obviating this consequence, the entry should not
be made according to the truth of the fact.
Rule absolute.
(26] THE KING v. ANTONIO DEPARDO. Nov. 21, 1807.
A manslaughter committed in China, by an alien enemy, who had been a prisoner of
war, and was then acting as a mariner on board an English merchant ship, on an
Englishman, cannot be tried here under a commission issued in pursuance of the
statutes 33 Hen. 8, c.'23, and 43 Geo. 3, c. 113, s. 6.
The prisoner was tried and convicted at the Old Bailey on the 30th of October
1807, before Lord Ellenborough C. J. and Thompson B., under a special commission
issued by virtue of the statutes 33 Hen. 8, c. 23, and 43 Geo. 3, c. 113, s. 6, upon an
indictment for feloniously killing and slaying Wm. Burne at Canton in China, in
parts beyond the seas without England.
At the trial it was proved that the deceased was an Englishman, and a mariner
belonging to the Alnwick Castle, a ship in the service of the East India Company,
having letters of marque. That the prisoner Depardo was a Spaniard, and had been
a prisoner of war on board his Majesty's ship the Blenheim; that two or three
months before he committed the offence, he entered as a volunteer on, board the
Alnwick Castle, at Pulopenang or Prince of Wales's Island, which is under the
dominion of his Majesty, and received the usual bounty; and also that on the day
before the perpetration of the act, he received some part of his pay : that at the time
of committing the offence, he was one of the crew of the Alnwick Castle, which was
then lying near Canton, in a part of the Canton river, about one-third of a mile in
width, within the tideway, at the distance of about 80 miles from the sea; that the
prisoner went on shore with bthers of the crew, and there mortally wounded the
deceased, who was afterwards carried on board the ship, where he died on the
following day.
Doubts being entertained whether the prisoner was an object of the special com-
mission issued under the statutes before mentioned, the Court was pleased to order
the case to be stated for the opinion of the twelve Judges.
(27] Burrough, for the Prisoner, admitted, that though the whole tenor of the
stat. 33 Hen. 8, c. 23, which gives the commissioners a jurisdiction in the cases therein
mentioned, seems clearly to point at offences committed within the king's dominions,
it was now too late to contend that it applies exclusively to such ; for, on account
of the words or without, which are found near the end of the first section, the act
has been held by Lord Holt and others to extend to offences committed out of the
king's dominions. By the stat. 43 Geo. 3, c. 113, the same law is extended to
aecessaries, and to manslaughter. The question to be decided, in substance is, whether
an alien enemy, having done nothing to divest himself of that character, committing
an offence in a country not within the king's dominions, is amenable to the laws of
England. An alien is not in general subject to the laws of another country : by a
medium indeed he may become subject to them, if he places himself within the range
of those laws. Adherence to the king's enemies is treason: and by the express pro-
visions of the statute 35 Hen. 8, c. 2, treasons committed either within or without
the realm may be tried here, 1 Hale P. C. 169. But if an alien adhere to the king's
enemies without the realm, that is no treason, unless he hath been previously domiciled
here, in which case it has been decided that his adherence is treason. A subject of
Spain cannot divest himself of allegiance to the Spanish king. Nemo potest exuere
patriam. And two or more co-ordinate absolute allegiances cannot be due from one
person to several independent princes, 1 Hale P. C. 68. The prisoner cannot discharge
himself of his natural allegiance by swearing allegiance to a new prince. His very
act of becoming a volunteer on board our ship was high treason to the King of Spain,
an adherence to his enemies. The prisoner might, though abroad, have become subject
to the laws of this country in three [28] 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
I TAUNT. 26.](ViewImageLocal?handle=hein.slavery/ssactsengr0179&div=1&collection=&method=preview&ext=.png&size=3)