LECTURE IX.
OF OFFENCES AGAINST THE LAW OF NATIONS.
THE violation of a treaty of peace, or other national compact, is a violation of the law of nations: for it is a breach of public faith. (a) Nor is it to be understood that the law of nations is a code of mere elementary speculation, without any efficient sanction. It has a real and propitious influence on the fortunes of the human race. It is a code of present, active, durable, and binding obligation. As its great fundamental principles are founded in the maxims of eternal truth, in the immutable law of moral obligation, and in the suggestions of an enlightened public interest, they maintain a steady influence, notwithstanding the occasional violence by which that influence may be disturbed. The law of nations is placed under the protection of public opinion. It is enforced by the censures of the press, and by the moral influences of those great masters of public law, who are consulted by all nations as oracles of wisdom; and who have attained, by the mere force of written reason, the majestic character, and almost the authority, of universal lawgivers, controlling by their writings the conduct of rulers, and laying down precepts for the government of mankind. No nation can violate public law, without being subjected to the penal consequence of reproach and disgrace, and without incurring the hazard of punishment, to be inflicted in open and solemn war by the injured party. The law of {182} nations is likewise enforced by the sanctions of municipal law. It is, says Blackstone, (a) adopted in its full extent by the common law of England; and whenever any question arises which is properly the subject of its jurisdiction, it is held to be a part of the law of the land. The offences which fall more immediately under its cognizance, and which are the most obvious, the most extensive, and most injurious in their effects, are the
(a) Vattel, b. 2, c. 15, sec. 221; Resolution of Congress of November 23, 1781. (a) Comm. iv. 67; [ante, 1, n. 1.]
violations of safe-conduct, infringements of the rights of ambassadors, and piracy. To these we may add the slave-trade, which may now be considered, not, indeed, as a piratical trade, absolutely unlawful by the law of nations, but as a trade condemned by the general principles of justice and humanity, openly professed and declared by the powers of Europe.
1. Violation of Passports. — A safe-conduct or passport contains a pledge of the public faith, that it shall be duly respected, and the observance of this duty is essential to the character of the government which grants it. The statute law of the United States has provided, in furtherance of the general sanction of public law, that if any person shall violate any safe-conduct or passport, granted under the authority of the United States, he shall, on conviction, be imprisoned not exceeding three years, and fined at the discretion of the court. (b)
2. Violation of Ambassadors. — The same punishment is inflicted upon those persons who infringe the law of nations by offering violence to the persons of ambassadors and other public ministers, or by being concerned in prosecuting or arresting them or their domestic servants. (c) This is an offence highly injurious to a free and liberal communication between different governments, and mischievous in its consequences to the dignity and well-being of the nation. It tends to provoke the resentment of the sovereign whom the ambassador represents, and to bring upon the state the calamities of war. The English Parliament, under an impression of the danger to the community from violation of the rights of embassy, and urged by the spur of a particular occasion, carried the provisions of the statute of 7 Anne, c. 12, to a dangerous extent. That statute prostrated all the {183} safeguards to life, liberty, and property, which the wisdom of the English common law had established. It declared, that any person convicted of suing out or executing civil process, upon an ambassador, or his domestic servants, by the oath of the party, or of one witness, before the lord chancellor and the two chief justices, or any two of them, might have such penalties and corporal punishment inflicted upon him as the judges should think
(b) Act of Congress, April 30, 1790, sec. 27. A foreign minister (and an attaché to a foreign legation is such) cannot waive his privilege, for it belongs to his sovereign who sends him. United States v. Benner, 1 Baldw 234; [ante, 39, n. 1.]
(c) Act, supra, sec. 25, 26.
fit. The preamble to the statute contains a special and inflamed recital of the breach of the law of nations which produced it, by the arrest of the Russian Minister in the streets of London.
The Congress of the United States, during the time of the American war, discovered great solicitude to maintain inviolate the obligations of the law of nations, and to have infractions of it punished in the only way that was then lawful, by the exercise of the authority of the legislatures of the several states. They recommended to the states to provide expeditious, exemplary, and adequate punishment for the violation of safe-conducts or passports granted under the authority of Congress, to the subjects of a foreign power in time of war; and for the commission of acts of hostility against persons in amity or league with the United States; and for the infractions of treaties and conventions to which the United States were a party; and for infractions of the immunities of ambassadors and other public ministers. (a)
3. Piracy. — Piracy is robbery, or a forcible depredation on the high seas, without lawful authority, and done animo furandi, and in the spirit and intention of universal hostility. (x) It is the same offence at sea with robbery on land; and all the writers on the law of nations, and on the maritime law of Europe, agree in this definition of piracy. (b) Pirates have been regarded by all civilized nations as the enemies of the human race, and the most atrocious violators of the universal {184} law of society. (a) They are everywhere pursued and punished with death, and the severity with which the law has animadverted upon this crime arises from its enormity and danger, the cruelty that accompanies it, the necessity of checking it, the difficulty of detection, and the facility with which robberies may be committed upon pacific traders in the solitude of the ocean. Every nation has a
(a) Journals of Congress, vii. 181.
(b) The United States v. Smith, 5 Wheaton, 153, and note, ib. 163.
(a) Cic. in Verrem, lib. 5; 3 Inst. 113.
(x) As maritime warfare is the right of sovereigns, and a depredation committed upon the high seas without their authority is piracy by the law of nations, naval commissions issued by those who wage war without recognition of belligerent rights are void. The Ambrose Light, 25 Fed. Rep. 408. A ship which has been sold at
public auction to a bona fide purchaser, before proceedings against her by the Crown, cannot afterwards be condemned for earlier piratical acts. Reg. v. McCleverty, L. R. 3 P. C. 673; see Att-Gen. for Hong Kong v. Kwok-a-Sing, L. R. 5 P. C. 179, 199; Cox v. Hakes, 15 A. C. 506, 520.
right to attack and exterminate them without any declaration of war; for though pirates may form a loose and temporary association among themselves, and re-establish in some degree those laws of justice which they have violated with the rest of the world, (b) yet they are not considered as a national body, or entitled to the laws of war, as one of the community of nations. They acquire no rights by conquest; and the law of nations, and the municipal law of every country, authorize the true owner to reclaim his property taken by pirates, wherever it can be found; and they do not recognize any title to be derived from an act of piracy. The principle, that a piratis et latronibus capta dominium non mutant, is the received opinion of ancient civilians and modern writers on general jurisprudence; and the same doctrine was maintained in the English courts of common law, prior to the great modern improvements made in the science of the law of nations. (c)
By the Constitution of the United States, Congress are [is] authorized to define and punish piracies and felonies committed on the high seas, and offences against the law of nations. In pursuance of this authority, it was declared, by the act of Congress of April 30, 1790, c. 9, sec. 8, that murder or {185} robbery, committed on the high seas, or in any river, haven, or bay out of the jurisdiction of any particular state, or any other offence which, if committed within the body of a county, would, by the laws of the United States, be punishable with death, should be adjudged to be piracy and felony, and punishable with death. It was further declared, that if any captain or mariner should piratically and feloniously run away with any vessel, or any goods or merchandise to the value of fifty dollars; or should yield up any such vessel voluntarily to pirates; or if any seaman should forcibly endeavor to hinder his commander from defending the ship or goods committed to his trust, or should make a revolt in the ship; every such offender should be adjudged a pirate and felon, and be punishable with death. (a) Accessaries to such piracies before
(b) Cic. de Off. 2, 11.
(c) Bynk. Q. J. Pub. b. 1, c. 17; Rutherforth, b. 2, c. 9; Azuni, ii. 351, 361, 362, ed. N. Y.; Cro. Eliz. 685; Anon. 2 Woodd. Lec. 429. Property found on board a pirate ship goes to the crown, of strict right, as droits of the admiralty; hut the claim of the original owner is admitted upon equitable principles, on due application. The Helen, 1 Hagg. Adm. 142.
(a) By the act of Congress of March 3, 1835, c. 313, the offence of making a
the fact are punishable in like manner; but accessaries after the fact are only punishable by fine and imprisonment. And, by the act of March 3, 1819, c. 76, sec. 5, Congress declared, that if any person on the high seas should commit the crime of piracy, as defined by the law of nations, he should, on conviction, suffer death. This act was but temporary in its limitation, and has expired; but it was again declared, and essentially to the same effect, by the act of Congress of 15th May, 1820, c. 113, sec. 3, that if any person, upon the high seas, or in any open roadstead, or bay, or river, where the sea ebbs and flows, commits the crime of robbery in and upon any vessel, or the lading thereof, or the crew, he shall be adjudged a pirate. So, if any person engaged in any piratical enterprise, or belonging to the crew of any piratical vessel, should land and commit robbery on shore, such an offender shall also be adjudged a pirate. The statute, in this respect, seems to be only declaratory of the law of nations; and upon the doctrine of the case of Undo v. Rodney, (b) such plunder and robbery ashore, by the crew, and with the aid of vessels, is a marine case, and of admiralty jurisdiction. The statute further declared, that the above provision was not to be construed to deprive any particular state of its jurisdiction over such offences when committed within the body of a county, or to authorize the courts of the United States to try any such offenders, after conviction or acquittance, for the same offence, in a state court.1
revolt in a ship is no longer punishable as a capital offence, but only by fine and imprisonment at hard labor. (b) Doug. 613, note.
1 See the trial of the Savannah Privateers, New York, 1862. It has been made felony for officers or mariners of vessels on waters within the admiralty jurisdiction of the United States to piratically or feloniously run away with the same, or any goods on board such vessel to the value of fifty dollars. Act of Aug. 8, 1846, 9 U. S. St. at L. c. 98, § 5, p. 73. So, any subject or citizen of any foreign state, who shall be found and taken on the sea, making war upon the United States, or cruising against the vessels and property thereof, or of the citizens of the same,
contrary to any treaty between the United States and the state of which such person is a citizen or subject, where by such treaty such acts of such person are declared to be piracy, may be punished in the circuit court like other pirates. Act of March 3, 1847, 9 U. S. St. at L. c. 51, p. 175. Moreover, vessels built, purchased, fitted out, or held, for piratical acts, may be seized and condemned, whether any act of piracy shall have been committed or attempted from such vessel or not. Act of Aug. 5, 1861, 12 U. S. St. at L. c. 48, p. 314.
{186} Under these legislative provisions it has been made a question, whether it was sufficient to refer to the law of nations for a definition of piracy, without giving the crime a precise definition in terms. The point was settled in the case of the United States v. Smith; (a) and it was there held not to be necessary to give by statute a more logical enumeration in detail of all the facts constituting the offence, and that Congress might as well define it by using a term of a known and determined meaning, as by expressly mentioning all the particulars included in that term. The crime of piracy was defined by the law of nations with reasonable certainty, and it does not depend upon the particular provisions of any municipal code for its definition and punishment. Robbery on the high seas is, therefore, piracy by the act of Congress, as well as by the law of nations. (b)
There can be no doubt of the right of Congress to pass laws punishing pirates, though they may be foreigners, and may have committed no particular offence against the United States. It is of no importance, for the purpose of giving jurisdiction, on whom or where a piratical offence has been committed. A pirate, who is one by the law of nations, may be tried and punished in any country where he may be found; for he is reputed to be out of the protection of all laws and privileges. (c) The statute of any government may declare an offence committed on board its own vessels to be piracy, and such an offence will be punishable exclusively by the nation which passes the statute. But piracy, under the law of nations, is an offence against all nations, and punisha-
(a) 5 Wheaton, 153.
(b) In the case of United States v. Brig Malek Adhel, 2 How. 210, it was held, after an elaborate discussion, that an act was piratical in the view of the law of Congress of March 3, 1819, c. 77, if the act or acts done be hostile in their character, and wanton and criminal in their commission, without any lawful sanction, whether committed for purposes of plunder, or for purposes of hatred, revenge, or a wanton abuse of power, or a lawless appetite for mischief. They are piratical aggressions in the sense of the law of nations and of the act of Congress, and work a forfeiture of the ship, whether the owner be or be not innocent. He is, in that case, bound by the acts of the master. But the cargo presents a different consideration, and it is not to be forfeited under the act of Congress or the law of nations, except in cases of extraordinary turpitude and violence. In ordinary torts and injuries the law admits of a compensation in damages. If, however, the owner of the cargo co-operates in the piratical acts, the penalty of confiscation is also inflicted on the cargo as well as on the ship. The more strict rule is also enforced in the case of belligerent rights, and the cargo follows the fate of the ship.
(c) Bynk. Q. J. Pub. b. 1, c. 17; Sir Leoline Jenkins, Works, i. 714.
ble by all.1 In the case of the United States v. Palmer, (d) it was held that the act of Congress of 1790 was intended to punish offences against the United States, and not offences against the human race; and that the crime of robbery, committed by a person who was not a citizen of the United States, on the high seas, on board of a ship belonging {187} exclusively to subjects of a foreign state, was not piracy under the act, and was not punishable in the courts of the United States. The offence, in such a case, must, therefore, be left to be punished by the nation under whose flag the vessel sailed, and within whose particular jurisdiction all on board the vessel were. This decision was according to the law and practice of nations; for it is a clear and settled principle, that the jurisdiction of every nation extends to its own citizens, on board of its own public and private vessels at sea. (a) The case applied only to the fact of robbery committed at sea, on board of a foreign vessel, at the time belonging exclusively to subjects of a foreign state; and it was not intended to decide that the same offence, committed on board of a vessel not belonging to the subject of any foreign power, was not piracy. The same court afterwards, in the case of the United States v. Klintock, (b) admitted that murder or robbery, committed on the high seas, by persons on board of a vessel not at the time belonging to the subjects of any foreign power, but in possession of a crew acting in defiance of all law, and acknowledging obedience to no government or flag whatsoever, fell within the purview of the act of Congress, and was punishable in the courts of the United States. Persons of that description were pirates, and proper objects for the penal code of all nations. The act of Congress did not apply to offences committed against the particular sovereignty of a foreign power; or to murder or robbery committed in a vessel belonging at the time, in fact as well as in right, to the subject of a foreign state, and, in virtue of such property, subject at the time to its control. But it applied to offences committed against all nations, by persons who, by com-
(d) 3 Wheaton, 610; United States v. Kessler, 1 Baldw. 15, S. P.
(a) Rutherforth, Inst. b. 2, c. 9; Mr. Jefferson's Letter to M. Genet, June 17, 1793.
(b) 5 Wheaton, 144.
1 The above passage is cited and said to be the law of England, in Tivnan's Case, 5 Best & Sm. 645, ante, 37, n. 1.
mon consent, were equally amenable to the laws of all nations. {188} It was further held, in the case of the United States v. Pirates (a) and in the case of the United States v. Holmes, (b) in pursuance of the same principle, that the moment a vessel assumed a piratical character, and was taken from her officers, and proceeded on a piratical cruise, she lost all claim to national character, and the crew, whether citizens or foreigners, were equally punishable, under the act of Congress, for acts of piracy; and it would be immaterial what was the national character of the vessel before she assumed a piratical character. Piracy is an offence within the criminal jurisdiction of all nations. It is against all and punished by all; and the plea of autrefois acquit, resting on a prosecution instituted in the courts of any civilized state, would be a good plea in any other civilized state. As the act of Congress of 1790 declares every offence committed at sea to be piracy, which would be punishable with death if committed on land, it may be considered as enlarging the definition of piracy, so as not only to include every offence which is piracy by the law of nations and the act of Congress of 1819, but other offences which were not piracy, until made so by statute.
An alien, under the sanction of a national commission, cannot commit piracy while he pursues his authority. His acts may be hostile, and his nation responsible for them. They may amount to a lawful cause of war, but they are never to be regarded as piracy. (c) The Barbary powers, notwithstanding some doubts which formerly existed, are now, and for a century past have been, regarded as lawful powers, and not pirates. They have all the insignia of regular, independent governments, and are competent to maintain the European relations of peace and war. Cicero, and, after him, Grotius, define a regular enemy to be a power which hath the elements or constituents of a nation, such {189} as a government, a code of laws, a national treasury, the consent and agreement of the citizens, and
(a) Ib. 184. (b) Ib. 412.
(c) Martens, Essay on Privateers, translated by Home, 42; Manning, Comm. 112, 113. States generally prohibit their subjects from taking letters of marque from a foreign power, without the permission of their sovereign; and treaties are numerous in which the contracting parties stipulate, that if the subjects of either party take letters of marque from the enemies of the other, they shall be treated as pirates.
which pays a regard to treaties of peace and alliance; (a) and all these things, says Bynkershoek, (b) are to be found among the states of Barbary. In some respects their laws of war have retained the barbarity of the middle ages, for they levy tribute or contributions on all such Christian powers as are not able to protect their commerce by force; and they also make slaves of their prisoners, and require a heavy ransom for their redemption. But this, Bynkershoek insists, is conformable to the strict laws of war; and the nations of Europe who carried on war with the Barbary states, such as Spain, Naples, Holland, &c., have heretofore exercised the same rule of ancient warfare, upon the principle of retaliation. When Lord Exmouth, in 1816, attacked Algiers, and compelled the Dey to terms of peace, he compelled him also to stipulate, that, in the event of future wars with any European power, no Christian prisoners of war should be consigned to slavery, but they should be treated with all humanity as prisoners of war, until regularly exchanged, according to the European practice; and at the termination of hostilities the prisoners should be restored without ransom. By that treaty of peace upward of 1000 prisoners belonging to Italy, Spain, Portugal, Holland, and Greece were released from galling slavery, and in which part of them had subsisted for thirty-five years. This stipulation {190} in favor of general humanity deserves some portion of that exalted eulogy bestowed by Montesquieu (a) on the treaty made by Gelon, King of Syracuse, with the Carthaginians. It would have been still more worthy of a comparison, if it had not left color for the construction that the renunciation, by the Dey of Algiers, of the practice of condemning Christian prisoners of war to slavery was to be confined to the "event of future wars with any European power;" and if
(a) Cic. Philip. 4, c. 6; Grotius, b. 3, c. 3, sec. 1.
(b) Q. J. Pub. b. 1, c. 17. A STATE, in the meaning of public law, is a complete or self-sufficient body of persons, united together in one community, for the defence of their rights, and to do right to foreigners. A state has its affairs and interests; it deliberates, and becomes a moral person, having an understanding and will, and is susceptible of obligations and laws. Grotius, b. 1, c. 1, sec. 14; ib. b. 3, c. 8, sec. 2; Burlamaqui, ii. pt. 1, c. 4, sec. 9; Vattel, b. 1, c. 1. Respublica est cœtus multitudinis, juris consensu et utilitatis communions sociatus. Cic. de Repub. lib. 1, sec. 25. The State is founded on the relations of right. Protection is its aim and object, and that protection is but another word for justice, or the obtaining and granting to every one his due. La justice constituée, c'est l'état (Cousin). Lieber, Political Ethics, i.
(a) Esprit des Lois, b. 10, c. 5.
a great Christian power on this side of the Atlantic, whose presence and whose trade are constantly seen and felt in the Mediterranean, had not seemed to have been entirely forgotten. (b)
But notwithstanding Bynkershoek had insisted, near a century ago, that captures by the Barbary powers worked a change of property by the laws of war, in like manner as captures made by regular powers, yet, in a case in the English admiralty so late as 1801, (c) it was contended that the capture and sale of an English ship by Algerines was an invalid and unlawful conversion of the property, on the ground of being a piratical seizure. It was, however, decided that the African states had long acquired the character of established governments, and that though their notions of justice differ from those entertained by the Christian powers, their public acts could not be called in question; and a derivative title founded on an Algerine capture, and matured by a confiscation in their way, was good against the original owner. In the time of Richard I., when the laws of Oleron were compiled, all infidels were, by that code, (d) regarded as pirates, and their property liable to seizure wherever found. It was a notion, at that time, that such persons could not have any fellowship or communion with Christians.
{191} In a case which occurred in 1675, Sir Leoline Jenkins held that the commander of a privateer regularly commissioned was liable to be treated as a pirate, if he exceeded the bounds of his commission. Bynkershoek justly opposes this dangerous opinion; (a) and the true rule undoubtedly is, that the vessel must have lost its national, and assumed a piratical character, before jurisdiction over it, to that extent, could be exercised.
If a natural-born subject was to take prizes belonging to his native country, in pursuance of a foreign commission, he would, on general principles, be protected by his commission from the charge of piracy. But to prevent the mischief of such conduct, the United States have followed the provisions of the English statute of 11 & 12 Wm. III. c. 7, and the general practice of other nations, (b) and have, by the act of Congress of April 30,
(b) Declaration of the Dey of Algiers, made with Lord Exmouth, August 26, 1816. Annual Register for 1816, app. to Chronicle, 288.
(c) The Helena, 4 C. Rob. 3. (d) Sec. 45.
(a) Q. J. Pub. b. 1, c. 17. (b) Vide supra, 100.
1790, sec. 9, declared, that if any citizen should commit any act of hostility against the United States, or any citizen thereof, upon the high seas, under color of any commission from any foreign prince or state, or on pretence of authority from any person, such offender shall be adjudged to be a pirate, felon, and robber, and, on being thereof convicted, shall suffer death. The act of Congress not only authorizes a capture, but a condemnation in the courts of the United States, for all piratical aggressions by foreign vessels; and whatever maybe the responsibility incurred by the nation to foreign powers, in executing such laws, there can be no doubt that courts of justice are bound to obey and administer them. All such hostile and criminal aggressions on the high seas, under the flag of any power, render property taken in delicto subject to confiscation by the law of nations. (c)
4. Slave-trade. — The African slave-trade is an offence against the municipal laws of most nations in Europe, and it is declared to be piracy by the statute laws of England and the {192] United States. Whether it is to be considered as an offence against the law of nations, independent of compact, (x) has been a grave question, much litigated in the courts charged with the administration of public law; and it will be useful to take a short view of the progress and present state of the sense and practice of nations on this subject.
Personal slavery, arising out of forcible captivity, has existed in every age of the world, and among the most refined and civilized people. The possession of persons so acquired has been invested with the character of property. Captives in war were sold as slaves by Greek and Roman commanders. The slave-trade was a regular branch of commerce among the ancients; and a great object of Athenian traffic with the Greek settlements on the Euxine was procuring slaves from the barbarians for the Greek market. (a) In modern times, treaties have been framed,
(c) Story, J., 11 Wheaton, 39-41.
(a) Mitford, Hist. iv. 236. Cattle and slaves constituted the principal riches of
(x) The slave-trade appears to be now piracy jure gentium, contrary to the earlier rule. Le Louis, 2 Dods. 210. It was so treated in the Treaty of 1889 between Great Britain and Italy. See 21 Revue de Droit International, 167, 602; 22 id.
57, 138; and the Proclamation, by the President of the United States of July 2, 1890 (27 St. at L. 886), of the general act for the repression of the slave-trade in Africa by civilized nations.
and national monopolies sought, to facilitate and extend commerce in this species of property. (b) It has been interwoven in the municipal institutions of all the European colonies in America, and with the approbation and sanction of the parent states. It forms to this day the foundation of large masses of property in the southern parts of these United States. But, for half a century past, the African slave-trade began to awaken a spirit of remorse and sympathy in the breasts of men, and a conviction that the traffic was repugnant to the principles of Christian duty, and the maxims of justice and humanity.
Montesquieu, who has disclosed so many admirable truths and so much profound reflection, in his Spirit of Laws, not only condemned all slavery as useless and unjust, but he animadverted upon the African slave-trade by the most pungent reproaches. It was impossible, he observed, that we could admit the negroes to be human beings, because if we were once to admit them to be men we should {193} soon come to believe that we ourselves were not Christians. Why has it not, says he, entered into the heads of European princes who make so many useless conventions, to make one general stipulation in favor of humanity? (a) We shall see presently that this suggestion was, in some degree, carried into practice by a modern European congress.
the early ages of Greece. The Byzantines, says Polybius (General History, b. 4, c. 5), supplied, from the Pontus, the Greeks with honey, wax, salted meats, leather, and great numbers of very serviceable slaves. It is mentioned in Scripture that the Tyrians traded with the Caucasian provinces for slaves: "Javan, Tubal, and Meshech traded the persons of men and vessels of brass in thy market," Ezek. xxvii. 13: and that they stole the children of the Jews, and sold them as slaves to the Greeks, Joel iii. 6. So the Carthaginians exchanged black slaves from the interior of Africa, in their commerce and barter with the cities of Italy and Greece. The great extent of the slave-trade, which was carried on by the polished nations of antiquity settled on the coasts of the Mediterranean, with Central Africa, by means of caravans, appears from Heeren in his Historical Researches, i., on the land trade of the Carthaginians.
(b) By the Assiento Treaty of March 26, 1713, between Great Britain and Spain, the latter power granted to the English South Sea Company, for thirty years, the right of supplying the Spanish colonies in America with negro slaves, at the rate of 4800 annually. This Assiento contract was explained and confirmed by a convention between England and Spain, in May, 1716. A similar contract had been previously agreed on by Spain with the Royal Guinea Company settled in France. Jenkins, Collection of Treaties, London, 1775, i. 375; ii. 179.
(a) Esprit des Lois, 1. 15, c. 5.
The Constitution of the United States laid the foundation of a series of provisions to put a final stop to the progress of this great moral pestilence, by admitting a power in Congress to prohibit the importation of slaves after the expiration of the year 1807. The Constitution evidently looked forward to the year 1808 as the commencement of an epoch in the history of human improvement. Prior to that time, Congress did all on this subject that it was within their competence to do. (b) By the acts of March 22, 1794, and May 10, 1800, the citizens of the United States, and residents within them, were prohibited from engaging in the transportation of slaves from the United States to any foreign place or country, or from one foreign country or place to another, for the purpose of traffic. These provisions prohibited our citizens from all concern in the slave-trade, with the exception of direct importation into the United States; and the most prompt and early steps were taken, within the limits of the Constitution, to interdict also that part of the traffic. By the act of 2d March, 1807, it was prohibited, under severe penalties, to import slaves into the United States after the 1st January, 1808; and, on the 20th April, {194} 1818, the penalties and punishments were increased, and the prohibition extended not only to importation, but generally against any citizen of the United States being concerned in the slave-trade. It has been decided (a) that these statute prohibitions extend as well to carrying slaves on freight, as to cases where they were the property of American citizens, and to carrying them from one port to another of the same foreign empire, as well as from one foreign country to another. The object was to prevent, on the part of our citizens, all concern whatever in such a trade.
The act of March 3, 1819, went a step further, and author-
(b) The continental congress, which assembled at Philadelphia in 1774, gave the first general and authoritative condemnation of the slave-trade by the resolution not to import or purchase any slave imported after the first day of December, in that year, and wholly to discontinue the trade. Journals of Congress, i. 32. The convention of delegates of the people of Virginia, and the provincial congress of North Carolina, had anticipated this measure; for in August preceding they resolved to discontinue the importation of slaves. Pitkin, History, i. App. n. 16; Jones, Defence of the Revolutionary History of North Carolina, 145.
(a) The Merino, 9 Wheaton, 391. The declarations of the master connected with his acts in furtherance of the voyage have been held to be evidence on an indictment against the owner of the ship, under the act of 20th April, 1818. United States v. Gooding, 12 Wheaton, 460.
ized national armed vessels to be sent to the coast of Africa to stop the slave-trade so far as citizens or residents of the United States were engaged in that trade; and their vessels and effects were made liable to seizure and confiscation. The act of 15th May, 1820, (b) went still further, and declared, that if any citizen of the United States, being of the crew of any foreign vessel engaged in the slave-trade, or any person whatever, being of the crew of any vessel owned in whole or in part, or navigated for or on behalf of any citizen of the United States, should land on any foreign shore, and seize any negro or mulatto, not held to service or labor by the laws of either of the states or territories of the United States, with intent to make him a slave; or should decoy, or forcibly bring or receive, such person on board such vessel with like intent; or should forcibly confine or detain on board any negro or mulatto, not lawfully held to service, with intent to make him a slave; or should, on board any such vessel, offer to sell as a slave any negro or mulatto, not held to service as aforesaid; or should, on the high seas, or on any tide water, transfer or deliver over, to any other vessel, any such negro or mulatto, with intent to make him a slave, or should deliver on shore, from on board any such vessel, any negro or mulatto, with like intent, such citizen or person should be adjudged a pirate, and, on conviction, should suffer death.
It is to be observed that the statute operates only where our municipal jurisdiction might be applied, consistently with the general theory of public law, to the persons of our citizens, or to foreigners on board of American vessels. Declaring the crime piracy does not make it so, within the {195} purview of the laws of nations, if it were not so without the statute; and the legislature intended to legislate only where they had a right to legislate, over their own citizens and vessels. The question, notwithstanding these expressions in the statute, still remained to be discussed and settled, whether the African slave-trade could be adjudged piracy, or any other crime, within the contemplation of the code of international law. It has been attempted, by negotiation between this country and Great Britain, to agree that both nations should consider the slave-trade piratical; but the convention for that purpose between the two nations has not as yet been ratified, though the British nation
(b) C. 113, sec. 4, 5.
have carried their statute denunciation of the trade as far as the law of the United States. (a)1
The first British statute that declared the slave-trade unlawful was in March, 1807. (b) This was a great triumph of British justice. It was called for by the sense of the nation, which had become deeply convinced of the impolicy and injustice of the slave-trade; and by the subsequent statute of 51 Geo. III. the trade was declared to be contrary to the principles of justice, humanity, and sound policy; and lastly, by the act of Parliament of 31st March, 1824, the trade is declared to be piracy. (c) England is thus, equally with the United States, honestly and zealously engaged in promoting the universal abolition of the trade, and in holding out to the world her sense of its extreme criminality. Almost every maritime nation in Europe has deliberately and solemnly, either by legislative acts, or by treaties and other formal engagements, acknowledged the injustice and inhumanity of the trade, and pledged itself to promote its abolition. By the treaty of Paris of the 30th May, 1814, between Great Britain and Prance, Louis XVIII. agreed that the traffic was repugnant to the principles of natural justice, and he engaged to unite his efforts at the ensuing congress to induce all the powers of Chris-
(a) All these acts of Congress apply exclusively to external commerce in slaves. The internal commerce within the United States in slaves is left to the control and discretion of the state governments; and the Northern States, which have abolished slavery, admit of no internal commerce in slaves within their respective states. It is not so in the slaveholding states. Some of them permit a traffic in slaves as between citizens of different states; but in Maryland, as early as 1796, it was declared by law to be unlawful to import or bring into the state, by land or water, any slave for sale or to reside within the state; and every slave brought in contrary to the statute was declared to be free. And in the Constitution of Mississippi of 1833, the introduction of slaves into the state as merchandise, or for sale, was prohibited, though actual settlers were allowed until 1845 to purchase slaves from any state in the Union, and bring them into that state for their individual use.
(b) Stat. 47 Geo. III. Denmark abolished, in 1792, the foreign slave-trade, and the importation of slaves into her colonies, though the prohibitions were not to take effect until 1804. Wheaton, Inquiry into the Right of Search, 1842.
(c) Stat. 5 Geo. IV. c. 113. The statute of 3 and 4 Wm. IV. c. 73, for the extinction of slavery, has some new and important penal provisions respecting the dealing in slaves on the high seas, or any traffic in them; and the statute of 1 Vict. c. 91, as well as the preceding statute, repeated the declaration, that British subjects concerned in the slave-trade should be adjudged pirates, and punishable accordingly.
1 The abolition of slavery in the United States by the 13th amendment of the Con-
stitution makes it unnecessary to further
investigate this subject.
tendom {196} to decree the abolition of the trade, and that it should cease definitively, on the part of the French government, in the course of five years. The ministers of the eight principal European powers, who met in Congress at Vienna on the 8th February, 1815, solemnly declared, in the face of Europe and the world, that the African slave-trade had been regarded, by just and enlightened men, in all ages, as repugnant to the principles of humanity and of universal morality, and that the public voice in all civilized countries demanded that it should be suppressed; and that the universal abolition of it was conformable to the spirit of the age and the generous principles of the allied powers. In March, 1815, the Emperor Napoleon decreed that the slave-trade should be abolished; but this effort of ephemeral power was afterwards held to be null and void, as being the act of an usurper; and in July following, Louis XVIII. gave directions that this odious and wicked traffic should from that present time cease. The first French decree, however, that was made public, abolishing the trade, was of the date of the 8th January, 1817, and that was only a partial and modified decree. (a) In
(a) By the convention between Great Britain and France, of the 30th November, 1841, the mutual right of search was allowed on board the vessels of each of the two nations, within certain specified waters, i. e. along the western coast of Africa from Cape Verd, or 15 degrees north latitude, to 10 degrees south of the equator, — all around the island of Madagascar to the extent of 20 leagues from the island, — to the same distance from the coasts of Brazil, and from the coasts of the islands of Cuba and Porto Rico; the right of searching merchant vessels to be confined to ships of war, under special authority from each of the two governments, and never to be exercised upon the ships of war of either nation. The United States have refused to become a party to any convention authorizing the mutual right of search, and France afterwards refused to ratify the treaty of 1841, conceding the mutual right of search. Vide supra, 153. The efforts and the failure of the efforts to sanction the mutual right of search, in respect to the slave-trade, form an instructive item in modern diplomatic history. In 1818, the British government proposed to France the mutual right of search of merchant vessels on the high seas, with a view to the more effectual suppression of the slave-trade, and which had been conceded by Spain, Portugal, and the Netherlands. The proposition was at the same time made to the United States, and rejected by both powers. In November of that year, the British government proposed to the congress of the five great powers, at Aix-la-Chapelle, the following propositions: (1.) The mutual right of search of merchant vessels engaged in the slave-trade; (2.) The declaration that the slave-trade was piracy, under the law of nations. Both propositions were rejected on the part of France, Austria, Prussia, and Russia. The propositions were renewed at the congress at Verona, in 1822, but without success. Afterwards, in 1841, the mutual right of search was conceded by the northern European powers, parties to the Quintuple Treaty, as see supra, 153. Though the government of the United States has uniformly objected to the admission
December, 1817, the Spanish government prohibited the purchase of slaves on any part of the coast of Africa, after the 31st of May, 1820; and this was in pursuance of the treaty between Great Britain and Spain of the 23d September, 1817, made for the abolition of the slave-trade immediately, north of the equator, and entirely, after 1820. In January, 1818, the Portuguese government made the like prohibition as to the purchase of slaves on any part of the coast of Africa north of the equator. In 1821, there was not a flag of any European state which could legally cover this traffic, to the north of the equator; and yet, in 1825, the importation of slaves covertly continued, if it was not openly countenanced, from the Rio de la Plata to the Amazon, and through the whole American Archipelago. (b)
of the right of visitation and search, in time of peace, even in respect to the African slave-trade, yet they agreed, in furtherance of efficient measures for its suppression, by the treaty of Washington, in 1842, with Great Britain, that each party should "prepare, equip, and maintain in service, on the coast of Africa, a sufficient and adequate squadron, or naval force of vessels, of suitable numbers and descriptions, to carry, in all, not less than eighty guns, to enforce, separately and respectively, the laws, rights, and obligations of each of the two countries, for the suppression of the slave-trade, — the said squadrons to be independent of each other; but the two governments stipulating, nevertheless, to give such orders to the officers commanding their respective forces as shall enable them most effectually to act in concert and co-operation, upon mutual consultation, as exigencies may arise."
(b) Report of a Committee of the House of Representatives of the United States, February 16, 1825. See also the Quarterly Review, No. 68 and No. 89, pp. 243-246; Alison's History of Europe, vi. 128, 129, and the English parliamentary discussions and documents. It appears that the African slave-trade was carried on to an enormous extent down to the year 1839. The trade was principally between Africa, and Brazil and Cuba. In 1828, 45,000 African slaves were imported into the city of Rio Janeiro. But by a convention between England and Brazil, in 1826, it was made piratical for the subjects of Brazil to be engaged in the trade after the year 1830; and it is understood that the government of Brazil, in 1831, not only put a stop by law to the importation of slaves, but declared that all slaves thereafter imported should be free, and imposed a heavy assessment on the importers, and provided for the transportation of such negroes back to Africa. In the treaty concluded 10th September, 1822, between Great Britain and the Imaun of Muscat, the latter agreed to abolish the foreign slave-trade forever in his dominions. So, by the treaty of the 23d of October, 1817, between Great Britain and Radama, king of Madagascar, it was agreed that there should be, throughout all the dominions of the king of Madagascar, an entire cessation of the sale or transfer of slaves. And in the treaty of commerce and navigation between Great Britain and the United Provinces of Rio de la Plata, February 2, 1825, it was agreed by the latter to prohibit all persons, subject to its jurisdiction, by the most solemn laws, from taking any share in the slave-trade; and yet it was stated by high authority in the British Parliament, May, 1838, as a matter of fact, and agreed to afterwards in an address to the Queen, that notwithstanding
{197} The case of the Amedie (a) was the earliest decision in the English courts on the great question touching the legality of the slave-trade, on general principles of international law. That was the case of an American vessel, employed in carrying slaves from the coast of Africa to a Spanish colony. She was captured by an English cruiser, and the vessel and cargo were condemned to the captors, in a vice-admiralty court in the West Indies, and on appeal to the court of appeals in England the judgment was affirmed. Sir William Grant, who pronounced the opinion of the court, observed that the slave-trade being abolished by both England and the United States, the court was authorized to assert, that the trade, abstractly speaking, could not have a legitimate existence, and was, prima facie, illegal upon principles of universal law. The claimant, to entitle him to restitution, must show affirmatively a right of property under the municipal laws of his own country; for, if it be unprotected by his own municipal law, he can have no right of property in human beings carried as his slaves, for such a claim is contrary to the principles of justice and humanity. The Fortuna (b) was condemned on the authority of the Amedie, and the same opinion was again affirmed. But in the subsequent {198} case of the Diana, (a) the doctrine was not carried so far by Lord Stowell, as to hold the trade itself to be piracy, or a crime against the law of nations. A Swedish vessel was taken by a
all the efforts of Great Britain to put down the slave-trade, it still continued, little diminished in extent, and much aggravated in horror. Portugal was the principal offender. What was once a legal had become now a contraband traffic. She had systematically and grossly violated her treaty engagements on that subject. Since 1829, there had been 153 Portuguese vessels seized as slavers, containing upwards of 163,000 slaves, and Portugal had, since that period, transported a million of slaves. This enormous abuse induced England, in 1839, to authorize by law the forcible examination and search of vessels suspected to be concerned in that trade. The British Minister, Sir Robert Peel, stated in the House of Commons, in July, 1844, that Spain and Brazil were the two powers chargeable with the whole responsibility of the continuance of the slave-trade, and that the island of Cuba was in a precarious, if not a perilous position, from the settled determination of her black population to emancipate themselves; and it is stated, on strong authority, that the English effort to put down the slave-trade by an armed force of British cruisers on the coast of Africa has increased the horrors of the slave-trade, without materially diminishing its amount. See Hill's Narrative of Fifty Days on Board a Slave-Ship, Sir F. Buxton on African Slave-Trade, and the other documents referred to and discussed in Westminster Review for June, 1844, p. 446, &c.
(a) 1 Acton, 240. (b) 1 Dods. 81. (a) 1 Dods. 95.
British cruiser on the coast of Africa, engaged in carrying slaves from Africa to a Swedish island in the West Indies, and she was restored to the owner, on the ground that Sweden had not then prohibited the trade, and had tolerated it in practice. England had abolished the trade as unjust and criminal, but she claimed no right of enforcing that prohibition against the subjects of those states which had not adopted the same opinion; and England did not mean to set herself up as the legislator, and custos morum, for the whole world, or presume to interfere with the commercial regulations of other states. The principle of the case of the Amedie was, that where the municipal law of the country to which the parties belonged had prohibited the trade, English tribunals would hold it to be illegal, upon general principles of justice and humanity, but they would respect the property of persons engaged in it under the sanction of the laws of their own country.
The doctrine of these cases is, that the slave-trade, abstractly speaking, is immoral and unjust, and it is illegal, when declared so by treaty or municipal law; but that it is not piratical or illegal by the common law of nations, because if it were so, every claim founded on the trade would at once be rejected everywhere and in every court, on that ground alone.
The whole subject underwent further, and a most full, elaborate, and profound discussion, in the case of Le Louis. (b) 1 A French vessel, owned and documented as a French vessel, was captured by a British armed force on the coast of Africa, after resistance made to a demand to visit and search. She was carried into Sierra Leone, and condemned by a court of vice-admiralty, for being concerned {199} in the slave-trade, contrary to the French law. On appeal to the British High Court of Admiralty, the question respecting the legality of the capture and condemnation was argued, and it was judicially decided, that the right of visitation and search, on the high seas, did not exist in time of peace. If it belonged to one nation, it equally belonged to all, and would lead to gigantic mischief and universal war. Other nations had refused to accede to the
(b) 2 Dods. 210.
1 Buron v. Denman, 2 Exch. 167. See Santos v. Illidge, 6 C. B. N. S. 841; S. C.
reversed, 8 C. B. N. S. 861.
English proposal of a reciprocal right of search in the African seas, and it would require an express convention to give the right of search in time of peace. The slave-trade, though unjust, and condemned by the statute law of England, was not piracy, nor was it a crime by the universal law of nations. To make it piracy, or such a crime, it must have been so considered and treated in practice by all civilized states, or made so by virtue of a general convention. On the contrary, it had been carried on by all nations, even by Great Britain herself, until within a few years, and was then carried on by Spain and Portugal, and not absolutely prohibited by Trance. It was, therefore, not a criminal traffic by the law of nations; and every nation, independent of treaty, retained a legal right to carry it on. No one nation had a right to force the way to the liberation of Africa, by trampling on the independence of other states; or to procure an eminent good by means that were unlawful; or to press forward to a great principle, by breaking through other great principles that stood in the way. The condemnation of the French vessel at Sierra Leone was, therefore, reversed; and the penalties imposed by the French law (if any there were) were left to be enforced, not in an English, but in a French court.
The same subject was brought into discussion in the King's Bench in 1820, in Madrazo v. Willes. (a) The court held, that the British statutes against the slave-trade were only applicable {200} to British subjects, and only rendered the slave-trade unlawful when carried on by them. The British Parliament could not prevent the subjects of other states from carrying on the trade out of the limits of the British dominions. ' If a ship be acting contrary to the general law of nations, she is thereby subject to condemnation; but it is impossible to say that the slave-trade was contrary to the law of nations. It was, until lately, carried on by all the nations of Europe; and a practice so sanctioned can only be rendered illegal, on the principles of international law, by the consent of all the powers. Many states had so consented, but others had not, and the cases had gone no further than to establish the rule, that ships belonging to countries that had prohibited the trade were liable to capture and condemnation, if found engaged in it.
The final decision of the question in this country has been the (a) 3 B. & Ald. 353.
same as in the case of Le Louis. In the case of La Jeune Eugénie, (a) it was decided, in the Circuit Court of the United States, in Massachusetts, after a masterly discussion, that the slave-trade was prohibited by universal law. But subsequently, in the case of the Antelope, (b) the Supreme Court of the United States declared that the slave-trade, though contrary to the law of nature, had been sanctioned, in modern times, by the laws of all nations who possessed distant colonies; and a trade could not be considered as contrary to the law of nations which had been authorized and protected by the usages and laws of all commercial nations. It was not piracy, except so far as it was made so by the treaties or statutes of the nation to which the party belonged. It might still be lawfully carried on by the subjects of those nations who had not prohibited it by municipal acts or treaties. (c)
(a) 2 Mason, 409. (b) 10 Wheaton, 66.
(c) The doctrine in the case of the Antelope, and in the English cases therein referred to, is, that right of bringing in for adjudication, in time of peace, foreign vessels engaged in the slave-trade, and captured on the high seas for that cause, did not exist; and vessels so captured would he restored, unless the trade was also unlawful, and prohibited by the country to which the vessel belonged; and if a claim be put in for Africans as slaves and property, the onus probandi is thrown upon the claimant to make specific proof of the individual proprietary interest according to the laws of the country to which the vessel belongs.
