are justified by the weight of evidence in making a capture, it becomes a mere question of evidence, and the vindication of the officer will depend upon the consideration, whether the evidence acted upon was, at the time of capture, sufficient to justify his decision.

The doctrine advanced by the American minister tends to the grossest absurdities. If the right to visit or to capture a vessel is made to depend upon the event of forfeiture, and a national insult is to be inferred from the failure of the captor to establish a justification, then the question, whether an insult to the flag has been offered, may be regarded as ambulatory, and depending upon the nicely-balanced doubts of the judge in admiralty. The question of national indignity is placed in abeyance. If the decision is in favor of the claimants, then an insult to the flag would result from the decree; but if this decision should chance to be reversed by the lords of appeal, the question of insult is also disposed of.

When it is considered that the instructions of the British government to its cruisers, relate entirely to their own subjects, or to those of foreign states over whom they have conventional jurisdiction, if those instructions are given in good faith, and a mistaken capture is made by a British officer, he alone, in the first instance, is responsible for the wrong done to injured individuals, and not his government. If he has been guilty of a wanton insult to the American flag, in the exercise of his pretended authority, the responsibility of his government will depend entirely upon its assumption of his acts. The actual responsibility of the government, at the time of the aggression, is limited by the tenor of the instructions. If it should be decided in the courts of admiralty, or in the common law courts, in cases within their respective jurisdictions, that a British officer was not justified or excused in exercising the right of visitation or capture, adequate redress would be given to the

injured party, and suitable punishment would be inflicted on the offender by his government.

If, by the decree of a court of admiralty, a justification or excuse is established, or if, simply, remunerative damages are awarded against a captor, unless the policy of the government and the decisions of the courts are inconsistent in their spirit, no vindictive proceedings can be prosecuted by the government against an officer whose conduct has been sanctioned by the courts, or who has been so far sustained by the circumstances of suspicion affecting the vessel as to be protected from a claim for damages. The same considerations, which governed the action of the court, must influence the measures of the government. If the act of the captor has been of a character insulting to a foreign power, the court would be justified in inflicting vindictive damages, and if the court are of opinion that probable cause is a sufficient excuse, in that decision is involved the absence of official wrong.

On the whole, the true doctrine appears to be, that a vessel, which claims the privileges belonging to any national character, must bear the national flag, and if she is affected by circumstances of suspicion, indicating a criminal or hostile character, to avoid a capture which would be excused by probable cause, she is bound to produce some evidences of her nationality.

There is nothing unreasonable in this. It is known that the ocean is the great resort of robbers, that they are in a measure secure from the vigilance of the law, that every possible disguise is used, and that all the laws and regulations of civilized life are disregarded by those rovers of the sea, who are as ready to fall upon unarmed merchantmen, as they are, under every variety of assumed character, to engage in that traffic which has so generally been denounced as piratical.

But if the rule so zealously pressed by the late American

minister could be established, the difficulty is not thus avoided. Here again, as in the case of neutrals and belligerents, there are rights which are in conflict. As the United States have a right to an unmolested trade to the coast of Africa, so Great Britain has an absolute right to arrest her subjects for a violation of her laws. If it is an injury to the United States to violate her flag, it is an equal injury to Great Britain to make that flag a safe conduct to British criminals. When, in the case of the Maria, 1 Rob. 287, it was contended, on behalf of vessels under a Swedish convoy, that by the presence of national ships, the guaranty of the government was given to the lawfulness of the trade, it was well understood, that if the doctrine had prevailed, the Swedish government would have been held responsible, whenever it was shown that the protected cargo was contraband of war. So if the flag of the United States is to protect, as a national guaranty, British outlaws and British criminals, the government of the United States may find that they have assumed a dangerous responsibility.'

When the rights of different nations are thus in conflict, and neither can fully exercise its own, without coming in collision with the rights of others, it is eminently proper, that the mode of their exercise, and the measure in which, each

1 Schlegel, in his "Examination" of the opinion of sir William Scott in this case, earnestly contended for the sufficiency of the guaranty. "The escort," he says, "is by its nature a solemn testimony given by the neutral power to the legality of the commerce in which the ships are engaged, a testimony which is the result of proceedings taken before the vessels leave port, and of inquiries so exact, that the merchants engaged in the illicit trade are obliged to let their vessels set out at their risk and peril."

If, before vessels left American ports for the coast of Africa, strict and exact inquiries were made into the character of their commerce, on the application of the owners, and testimony was given by the government in such a form and under such guards as to make fraud difficult and its occurrence improbable, few cases would arise, in which search and detention, after visitation, could be justified or excused in the courts of admiralty.

shall yield to the rights of other nations, should be determined by convention.

In settling the terms of that convention, satisfactory prima facie evidence of national character might be agreed upon; but when overborne by strong manifestations of fraud, probable cause ought to be acknowledged as always a sufficient excuse for visitation and search and detention for adjudication. Nothing, we conceive, can be a more absurd test, when held to be conclusive, than a flag which may be assumed, or papers which may be simulated. Above all things, in the settlement of a subject involving considerations of such deep import, we ought to rest our claim upon the strict rules of international law, and not seek to attain a temporary object by the sacrifice of principles, upon the maintenance of which depend the safety and the honor of nations.

The American people acknowledge no interest in the African slave trade. They were the first to denounce it as piratical. They decline to enter into the European league for its suppression, because controversies may grow out of such a compact, and they seek no "entangling alliances," and because they cannot yield jurisdiction over American citizens, accused of violating a law of the United States, to a mixed or a foreign tribunal. But they have a deep interest in sustaining, in all its rigor, the right of visitation and search. If a systematic attempt should be made to destroy American manufactures, by the free introduction of foreign commodities in vessels sailing under a British flag, with a pretended destination for a port in the British dominions, in violation of a law which made such attempts criminal; or if piratical cruisers, fitted out from Hayti, should hover on our southern coast under the protection of a British flag, to intercept persons and property, all would acknowledge the importance of the right in question, and the necessity of its exercise.

S. F. D.

ART. VI.-CRIMINAL CODE OF MAINE.

The Revised Statutes of the State of Maine, passed October 22, 1840. Augusta. William R. Smith & Co. Printers to the State, 1841.

WE single out the criminal statutes from the volume before us for the subject of remark, partly, because we have not had time to examine the revision at large, and partly, because we believe criminal statute law is just now a subject of more general interest than civil.

We must confess, we always hail with pleasure any attempt to codify or revise the criminal law, on the part of any of our states. If stare decisis is the good lawyer's maxim as to civil legislation and jurisprudence, it is by no means our creed as to criminal. Prima facie, the older a criminal statute or a principle of criminal law, the worse, with us, not because it necessarily yields in prudence or scientific skill to modern innovations, but because the chances are so much in favor of the superior humanity of the latter. Forty years' interval in criminal legislation, for instance! Who can justly appreciate what advancement has been made within that time, reckoning to the present day, in the spirit of legislation? Let one but glance at the number of capital offences which have fallen off from the statute book, on both sides of the Atlantic; at the list of crimes "innominate" which have either been exploded or brought within the limits of common sense and common understanding; at the reduction of penal aggravations which avarice and selfish timidity have at last reluctantly consented to; and more than all, at the amelioration of the modes of punishment in the way of prison discipline, (which, be it said, belongs to the people and not to the legal profession), to satisfy himself that man begins to sit in judgment upon