After the close of this examination, the chief baron Ward charged the jury. Upon closing his charge, Kidd informed him that he had witnesses to produce "for his reputation."

L. C. B. Ward. Mr. Kidd, we gave you time to make your defence, why did you not produce them? You were asked more than once if you had any more to say, and you said you would call no more witnesses.

Kidd. I can prove what service I have done the king.

L. C. B. Ward. You should have spoken sooner, but what would that help in this case of murder? You said you had no more to say before I began.

The jury retired, and after about an hour returned with their verdict. Upon answering that they were agreed,

Cl. of Arr. William Kidd, hold up thy hand, (which he did.) Look upon the prisoner. Is he guilty of the murder whereof he stands indicted, or not guilty?

Foreman. Guilty.

Cl. of Arr. Look to him, keeper.

In the mean time, however, his trial upon the charge of piracy, had been proceeding, and the above verdict was returned, while the counsel for the crown were making their opening statement to the jury. The court disregarded all the considerations for delay which had been urged upon them, and nothing remained for Kidd and his associates, but to meet the charges as they best could, without the aid of counsel or friends, after having been shut up in prison, and deprived of the means of procuring testimony.

Probably substantial justice took place in the end, though, with the more refined notions of modern times, the means of reaching it seem somewhat harsh and severe.

In regard to the charge of murder, of which he was convicted, it seems to have been the result of a hasty brawl between him and his gunner, William Moore, and at this day would have been regarded as an act of manslaughter only.

The blow which caused his death was inflicted with

a bucket, and was given in consequence of irritating language used by the deceased towards his commander in an angry dispute.

It made, however, but little practical difference with the prisoner, whether the verdict in this instance was right or wrong, for upon each of the five indictments which followed, he was convicted, and a general sentence of death was pronounced upon him. Eight of his associates were convicted and sentenced at the same time, but Kidd protested to the last, that he had been sacrificed by perjured witnesses.

This sentence was soon after executed upon him, and the name of "Captain Kidd" has ever since been associated in the legends of our early history, with that of the powers of darkness and the unsolved mystery of countless heaps of buried treasure.

E. W.

ART. V.-WHEATON ON THE RIGHT OF VISITATION AND

SEARCH.

1. Enquiry into the validity of the British claim to a right of visitation and search of American vessels suspected to be engaged in the African slave trade, by HENRY WHEATON, LL. D. Philadelphia: Lea & Blanchard, 1842.

2. An examination of the question now in discussion between the American and British governments concerning the right of search, by an American. Paris: 1842.

MR. WHEATON has presented to the public a valuable analysis of the discussions, which occurred between the American and British governments, in relation to the extension of the right of search, and of jurisdiction for the suppression of the slave trade. His inquiry also has the merit of being conducted in a very proper temper, and in a tone worthy of

his character as a statesman; but his view of the grounds on which the right of visitation and search rests is entirely inadequate; and it is quite remarkable that the reporter of the case of the Palmyra' should have adopted errors so entirely at variance with the authority of that case.

It is of the utmost importance, in considering this question, to recollect that the right of capture, and the right of visitation and search in time of peace, depends upon the jurisdiction over the offence, for which the search or the seizure is made. Great confusion has resulted from disregarding this principle. When lord Stowell, in the case of the Louis, 2 Dods. Rep. 238, was seeking for grounds to distinguish the case before him, from the case of the Amadie, 1 Acton's Rep. 240, whilst in fact he overruled the decision in the latter case, he dwelt upon the consideration, that the search in the case of the Louis was not made upon the belligerent claim; but he never meant to deny that the jurisdictional right of visitation might be exercised, notwithstanding the absence of reasons for exercising the right as an absolute one, as it may be in time of war, for certain purposes, even without probable cause.

In the case of the Amadie, (1 Acton's Rep.) 240, an American vessel was subjected to visitation and search in time of war by a British cruiser. It was discovered that she was engaged in the slave trade. She was therefore captured and brought in for adjudication. At the trial before sir William Grant, it was decided that the American claimants could not substantiate any just claim to the ship and her cargo of slaves; because as the trade was prohibited by the laws of the United States, they could not, in a court which had authority to inquire into the validity of all claims to the property, show any lawful title, a forfeiture was therefore decreed. Admitting that the American claimants could

112 Wheaton's Rep.

establish no title, it is difficult to discover the grounds on which this eminent judge decreed in favor of the captor, for although he had a right to visit the American ship for probable cause, to ascertain her national character, and an absolute right to search for contraband or colonial produce, the rights of war gave him no authority to capture for any other cause, and it was a most perverted course of reasoning, by which sir William Grant decreed for the court of admiralty, from an exercise of the right of search for another purpose, jurisdiction over a subject of which it could otherwise have no cognisance. The court proceeded upon the principle, that a vessel may be visited for one cause and captured for another, although the cause of capture would not authorize visitation. In the case of the Louis, lord Stowell adopted the true doctrine, that a vessel could not be brought to adjudication for an alleged crime over which the court had no jurisdiction, and that there could be no right to search or capture a vessel for an offence which could not be tried. This was the substantial ground of the decision made by lord Stowell, and when he was pressed by the doctrine of sir William Grant, he escaped the authority of the case of the Amadie, which it is manifest he entirely disapproved, by showing that not only was there no jurisdictional right to capture the Louis, but there was no right to visit and search or capture her, on any other ground which would place her at the disposal of the court of admiralty, and thus justify an inquiry into the title of the claimants. The captain in that case asserted the general right of visitation without jurisdiction and without cause. Lord Stowell showed that where there was no jurisdiction, there could be no authority for visitation or search as no cause whatever existed for the exercise of the right in a time of peace, except on the jurisdictional ground. He says, "that no authority can be found, which gives any right of visitation or interruption over the vessels and nav

igation of other states, on the high seas, except what the right of war gives to belligerents against neutrals;" and this assertion of an undoubted principle has been strangely construed as a denial of the right in cases where the court had jurisdiction. Mr. Wheaton says, "the assertion of lord Stowell, that no such authority can be found, must be considered as conclusive against its existence."

But the purpose, for which lord Stowell asserted this doctrine, is overlooked by those who cite it as manifesting his opinion, that the right can never be exercised in time of peace in aid of the jurisdiction. As a belligerent right it is exercised against other nations. In time of peace, the right of visitation is limited by the jurisdiction. It may be exercised where there is probable cause to suppose that the national character is such as to confer jurisdiction. In the case of the Louis, a vessel belonging to a foreign state had been captured.

"In time of war," says Mr. Wheaton, "vessels suspected to have fraudulently assumed the flag and papers of another nation, may be seized and proceeded against in the exercise of a right incident to that of belligerent capture. Being once brought before the prize court, such vessels may be condemned on the ground, that a British subject has no persona standi in judicio, to claim property taken in the act of violating the municipal law of his own country, whilst the claim of the American citizen would at once be rejected as founded in fraud, and supported by falsehood." p. 136.

Such was the doctrine of sir William Grant, and lord Stowell's purpose was to show that no such claim could be asserted in the case before him. Mr. Wheaton maintains that the right in question depends in time of peace so strictly upon the event, that if it is not shown by the result to be justified in its exercise, a national wrong is the consequence to the state whose subjects have been injured, and he repels the doctrine that probable cause can furnish any

excuse.