slave trade, as now practiced, has the sanction | by those who must be considered as actors in of the law of nations, as now understood by the the cause, and who must, consequently, prove civilized and Christian nations of the world. their title as alleged, the fair abstract question That it once had that sanction, may, perhaps, arises, and their claim may well be repudiated be admitted; but it must also be admitted that as founded in injustice and illegality. there was once a time when it had not that sanction. The permission began by general assent and usage. The King of Spain, in the preamble to his edict of 1817, admits that it was incorporated into the code of nations as an exception to the general principles on which that code is founded. When the practice was adopted by the general, not universal assent, of civilized nations, it became a part of the law of nations. In the same manner, a general, and not a universal denunciation of the practice, is sufficient to make it cease to be a part of the law of nations. In the great moral and legal revolution which is now going on in the 76*] world respecting this trade, the time must come when it will cease to have a legal existence by the universal concurrence of nations. In the meantime, the question must be discussed, as it arises under various circum stances, until we reach the desired period when the universal sentiment of the wise and the good shall become the rule of conduct sanctioned by authority capable of enforcing it. All the modifications and improvements in the modern law of nations have been gradually in troduced. The writers upon that law explain the manner in which these changes have been made and sanctioned. The documents to be laid before the court will show the present state of the world's opinion and practice upon this subject, and will prove that the time is at hand, if it has not already arrived, when the slave trade is not only forbidden by the concurrent voice of most nations,, but is denounced and punished as a crime of the deepest die. This is shown by the declarations contained in the treaties of Paris and Ghent; by the acts and conferences at the Congresses of Vienna, London, and Aix la Chapelle; by the treaties between Great Britain, and Spain, and Portugal; by the negotiations between the United States and Great Britain; and by the reports of the committees of the House of Commons, and the House of Representatives in Congress. We contend, then, that whatever was once the fact, this trade is now condemned by the general consent of na77* tions, who have publicly and solemnly declared it to be unjust, inhuman and illegal. | We insist, that absolute unanimity on this subject is unnecessary; that, as it was introduced, so it may be abolished, by general concurrence. This general concurrence may not authorize a court of justice to pronounce it a crime against all nations, so as to make it the duty of all to seck out and punish offenders, as in the case of piracy. No decision has yet gone that length, nor is it necessary in this case to contend for such a principle. But in a case where the Africans are lawfully brought before a court of the law of nations, and are claimed as property,

The learned counsel here commented upon the different cases in England and this country, with the view of reconciling them, and showing that they were all consistent with the principle he maintained. In the cases of The Amedie,3 The Fortuna, and The Donna Marianna,5 the ship and persons on board were lawfully brought into the custody of the court, either as being captured jure belli, or taken under circumstances which warranted a seizure as for a municipal offense. The claims were accordingly rejected, upon the ground of the unlawfulness of the trade. In the subsequent cases of The Louis, and of Madrazo *v. "Willes,' [*78 the original seizure was held to be unjustifiable, and consequently restitution was decreed. But none of the important principles settled in the other cases, are overruled in these cases, which turn exclusively upon the point that the wrong first done in the unlawful seizure must be redressed. In the case of La Jeune Eugenie, the claim of a French subject was rejected, as being founded in a breach of the municipal law of his own country, and the subject-matter in controversy was delivered up, with the consent of the executive government of this country, to the sovereign of France, to be dealt with as he should think fit. All these latter cases show, that where the court has rightfully obtained possession of human beings, who are claimed as slaves, it will not restore them to their alleged proprietors, although it may not go so far as to punish those who are engaged in the trade, by the confiscation of the vehicle in which it is carried on.

2

1.-Vide Appendix, Note I., b. p. 32.

2.-Vattel, Droit des Gens, Chap. Prelim. 8. 25-27, 56, liv. 1. ch. 23, s. 293; Burlam. 165; Martens, 1, 9, 8. 5, l. 11, s. 1.

3.-Acton's Rep. 240.

4.-1 Dodson's Rep. 81.

But another view may be taken of this subject. The King of Spain, in his edict of 1817 (before referred to), informs us, that the slave trade originated in motives of humanity, and was intended to avoid the greater evils growing out of the barbarous state of the African continent. Suppose this to be a just representation, and that the trade formerly consisted merely in the transportation of persons who were slaves in Africa, to be slaves elsewhere; it is at last discovered, by the *evidence tak- [*79 en before the British House of Commons in 1790, by the investigations of the African Institution, and by the reports of the British and American naval officers, to have entirely changed its character. Slaves are no longer acquired merely by capture in war, or by trade; but free persons are seized and carried off by the traders and their agents. Wars are instigated by them, for the mere purpose of making slaves. The persons thus enslaved are clandestinely brought away, under circumstances of extreme cruelty, aggravated by the necessity of concealment, and smuggled into every country where the cupidity of avarice creates a demand for these unhappy

5.-Id. 91.

6.-2 Dodson's Rep.

7.-3 Barnwell and Ald. 353. The several cases cited will be found in the Appendix to the present volume of these reports, g, p. 40-48.

8.-2 Mason's Rep.

victims. May it not be asked, is this trade? Is, tims. It asserts, that the United States have

it lawful? Has it not so changed its nature as to have become prohibited?

acquired the possession of these negroes lawfully, without wrong; that with the possession so acquired, they have incurred the obligation to protect them; that all presumptions are in favorem libertatis; and, whatever the laws of other countries may tolerate or ordain, having ourselves declared the slave trade to be contrary to the principles of humanity and justice, we are bound, prima facie, to hold that there can be no property in a human being.

*This proposition suggests the follow- [*82

1. Was the possession lawfully acquired? 2. If so, does the right which is asserted necessarily follow?

Again; supposing the slave trade not yet to have become generally illegal; still it has become so to the subjects of those countries who have issued declarations against the trade. To such the argumentum ad hominem may be fairly applied, as Sir W. Scott says in The Louis. Spain and Portugal are among the countries who have issued the most formal declarations against this trade, although they have not yet taken the most effectual measures to suppress it. By the treating inquiries: ies between these powers and Great Britain, they have stipulated the entire abolition of the slave trade north of the equator. But their authentic declarations pronounce it to be unlawful and inhuman, wherever carried on; and the permission to continue it south of the line can 80*] only *affect them, and their subjects, and the powers with whom they have made such treaties. Their subjects cannot avail themselves of the permission, so far as other nations are concerned. Those nations have a right to look to the declarations as authentic evidence of the understanding of the Spanish and Portuguese governments, as to the law of nations.

But suppose they can avail themselves of the permission to trade in slaves within the limits prescribed by the treaties. The onus probandi is thrown upon them to bring themselves within those limits. This they have failed to do by satisfactory evidence.

And even if the law was in their favor, and they had shown the trade in which they were engaged to be within the limits permitted by the treaties, such a general claim could not be given in by the consuls of Spain and Portugal for their fellow-subjects. The court has a right to the oath of the individual owners, as to their proprietary interest, and to explain the other circumstances of the case. As to the Portuguese claim, the owners are still unknown, and it is impossible that restitution can be made to the consul, or even to his government, merely upon evidence that the Africans were taken from a vessel sailing under the Portuguese flag and papers, without any specific proof of the individual proprietary interest.

Lastly; if some of those Africans were the property of the claimants, some were not; and, failing to identify their own, they are not enti81*] tled *to restitution of any as slaves, since among them may be included some who are entitled to their freedom. The proof, by lot, which was substituted by the court below for ordinary legal proof, is not satisfactory, especially where a claim to freedom conflicts with a claim to property.

Mr. Berrien, for the respondents, stated that a reference to the transcript would show, that of all the parties to this cause in the court below, the United States, and the Spanish and Portuguese vice-consuls, are alone before this court; and that the United States, acquiescing in all the residue of the decree, have appealed from only so much as directs restitution to the Spanish and Portuguese vice-consuls.

The allowance of these claims is resisted on various grounds.

One prominent proposition pervades the whole of the opposite argument. Unless we can meet and resist it, we must submit to be its vic

3. With a view to their own peculiar condition, can the United States exercise such a power?

1. The lawfulness of the possession will be determined by considering the capacity of the seizing officer to make the seizure, in connection with the liability of the thing seized.

The seizure was made by John Jackson, commander of the revenue cutter Dallas, belonging to the district of Georgia; and was made off the coast of Florida, while that was yet a prov ince of Spain. The right of Captain Jackson must have resulted from the authority given by his commission, and the laws of the United States.1

It did not result from the act of 1799, providing for the establishment of revenue cutters; for this only authorizes them to board vessels on the coasts of their respective districts, or within four leagues thereof; nor from the acts forbidding the slave trade, for these are directed only against vessels of the United States, or foreign vessels intending to violate our laws by introducing negroes into the United States. The President is, indeed, authorized to employ the armed vessels of the United States, to cruise on the coasts of the United States, or territories thereof, or of *Africa, or elsewhere, and [*83 to instruct them to bring in all vessels found contravening those acts. But the laws of the United States can operate only on American vessels, on American citizens on board of foreign vessels, or on such vessels within the limits and jurisdiction of the United States. Besides, it is not pretended that the revenue cutter Dallas had been selected as a cruising vessel under these acts, or that Captain Jackson had received any instructions from the President of the United States. Neither can the seizor derive any aid from the acts to preserve the neutral relations of the United States; for although the courts of the United States will restore property taken in violation of these acts, when it is found within their jurisdiction, yet they do not authorize the cruisers of the United States to rove the ocean in search of objects on which that jurisdiction may be exercised.

So far, then, as it depends on the official character of the seizor, the act was lawless.

The thing seized was a Spanish vessel, in the possession of persons, some of whom were American citizens, who had captured it jure belli, under the flag of Artegas, or of Venezuela, and in a vessel which had been fitted out, or whose armament had been increased, in the United States.

1.-The Louis, 2 Dodson's Rep. 238.

The right to seize for a violation of the acts to preserve the neutral relations of the United States, has been already spoken of; but the adverse argument considers these captors as pirates, and asserts the right of every individual 84*] to war against them as enemies of the human race. The answer is,

1. The seizure by Captain Jackson was not made on that ground. The libel alleges the seizure to have been made for a violation of the act of 1818, prohibiting the slave trade.

2. The courts of the United States have declined to decide that such an act would amount to piracy.

3. To put himself in a situation to make this seizure, Captain Jackson abandoned the duty enjoined upon him by his commission, and the laws of the United States, by leaving the limits intrusted to his vigilance. If he had lost his vessel, could he have justified himself before a court-martial?

4. But if these men were pirates, and lawfully brought in, then the Spanish property was, from the moment of its introduction, under the protection of the ninth article of the treaty of San Lorenzo el Real.

visionary. I find it difficult to form a conception of a pledge, which the party making it can at any time capriciously recall; and yet no one doubts that an act of the American Congress can, at any moment, throw open the slave trade.

These considerations apart, would it become the United States to assume to themselves the character of censors of the morals of the world on this subject; to realize the lofty conception of the adverse counsel, and consider themselves as the ministers of heaven, called to wipe out from among the nations the stain of this iniquity? Might not the foreign claimant thus rebuke them, in the strong language of truth? For more than thirty years you were slave traders; you are still extensively slave owners. If the slave trade be robbery, you were robbers, and are yet clinging to your plunder. For more than twenty years this traffic was protected by your constitution, exempted from the whole force of your legislative power; its fruits yet lay at the foundation of that compact. The principle by which you continue to enjoy them, is protected by that constitution, forms a basis for your representatives, is infused into your laws, and mingles itself with all the sources of authority. Relieve yourselves from these absurdities, before you assume the right of sitting in judgment on the morality of other nations. But this you cannot do. Paradoxical as it may appear, they constitute the very bond of your union. The shield of your constitution protects them from your touch. *We have no pretense, then, to enforce [*87 against others our own peculiar notions of morThe standard of morality, by which courts of justice must be guided, is that which the law prescribes.2

Neither have the United States acquired any rights to enforce against these foreigners their own speculative notions on this subject, in consequence of their being actors. All parties are actors in a court of admiralty, and these parties only became so after their property had been taken into the custody of the marshal, and at the suit of the United States. But they were entitled, under the treaty, to have restitution of their property, without being put to other proof than that it was found in their possession.ality. 2. If the possession had been lawfully ac85*] quired, *could the court refuse restitution on the ground suggested?

The great case on this subject, is that of The Louis. Our adversaries agree to refer the question to its decision.

It is a singular mistake, to suppose that Sir W. Scott directed restitution solely on the ground of the unlawfulness of the seizure; and thence to infer, that if the seizure had been lawful, he would have condemned. On the contrary, admitting the lawfulness of the seizure, he decides expressly that restitution must, notwithstanding, be awarded.

3. With a view to their own peculiar situation, could the United States maintain the doctrines contended for? It is said, that, having promulgated our policy in relation to this subject, we have thereby given a warning to slave traders, which they are bound to respect-a pledge to the rest of the world which we are bound to redeem. But what is this policy, which we have thus notified to the world? It is to be found in our laws, inhibiting the slave trade. The penalties of these are denounced against our own vessels, and our own citizens, who shall engage in this traffic anywhere; and against foreigners and their vessels, who pursue it for the purpose of introducing negroes into the United States. There is no warning to the subjects of Spain and Portugal, quietly pursuing this traffic under the sanction of their own laws.

86*] *The notion of the pledge is equally

1.-2 Dodson's Rep. 243, 249, 264. Wheat. 10. U. S., Book 6.

The learned counsel here proceeded to examine the evidence of proprietary interest, and insisted that (besides the other testimony) the official interposition of the Portuguese government supplied the place of proof of individual interest, and established the legality of the traffic.

The objection to the decree of the Circuit Court, on the ground that the distribution of the negroes was directed to be made by lot, was answered by the following considerations:

1. It appearing that the negroes found on board the Antelope consisted of three distinct parcels, taken from American, Spanish, and Portuguese vessels, the obligation to protect the former was equal to, and not greater than, that which required the restoration of the latter. The capture by Smith being considered, as in the argument of our adversaries it is considered, as piratical, the right of the Spanish claimant to restoration under the treaty was the primary right, as founded on the treaty which is the supreme law; and in the fair construction of that treaty, it extended to every thing found on board the Spanish vessel. Then the proof which should diminish that right was to be furnished by those who sought to diminish it.

*2. It being ascertained that these ne- [*88 groes were property, they were liable to distri bution as other property; and, notwithstanding the assertion to the contrary, the lot is often

3. How can even the rigid rule laid down by that court be availed of? The court expressly decline to decide what will be the effect of the proof, if made, declaring that a claimant, under such circumstances, is not entitled to be heard in any court. Of what avail, then, is the proof?

4. I find a difficulty in understanding what principles of the law of nations are not general in their operation, and yet the inhibition of the slave trade is said not to be one of the general principles of that law.

admitting, at the same time, that their views | relation to this case, will be found in The Formay be defeated by the refusal of any one state. tuna, The Diana and The Louis.4 But if the British ministry had so considered this case, they would most surely have availed themselves of it in these conferences. That it was not so viewed by Sir W. Scott is most certain; or. bound as his judicial conscience was by the decision of the Court of Appeals. he could not have pronounced the opinion given in the case of The Louis. The argument in the case of The Amedie is founded entirely on the effect of the British act of Parliament. Be fore the passing of that act, the learned judge declares, that no court in England could have pronounced the slave trade to be illegal; since it is prima facie illegal everywhere, and on principles of universal law a claimant is not entitled to be heard in any court. We inquire, 1. If, before the enactment of the British act of Parliament, the slave trade was not forbid den, how that act could have changed the uni93*] versal *law? It is said, that that act, proprio vigore, rendered it, prima facie, illegal everywhere, incapable abstractly of having a legal existence. Are these not mere caballistic terms, too occult for the apprehension of a legal mind?

Consider the operation ascribed to this act of Parliament. Jurisdiction, derived from place, is confined to the territory of the sovereign, from the person, to his own subjects; but here is an act of the British Parliament, which, according to Sir Wm. Grant, operates locally throughout all space, and personally over every individual in the various communities of nations. Sir W. Scott holds a doctrine directly opposite to this, in the case so often cited. It did not arise from the locality of the tribunal, for it was solemnly held, in the case of The Maria (the Swedish convoy), that this could not influence its decisions.

2. By what rule, other than that of sic volo, sic jubeo, did the master of the rolls throw the burthen of proof on the claimants? It is said, because the slave trade is illegal, contrary to justice and humanity; that human beings are not the subjects of property. The obvious answer is, this is a petitio principii. It assumes the very question in controversy. The case admits, and so the fact was, that up to the time when this act was passed, with the exception of America, this traffic was everywhere lawful; 94*] that property *was acquired by it. If at that time it had become otherwise, the change must have been effected by some positive act. The assertion that such an act existed, was an affirmative proposition. He who made it was bound to prove it. Such is the opinion of Sir W. Scott, and of Sir J. M'Intosh. Nay, in the case of La Jeune Eugenie, it is admitted that a prohibitory act of the country of which the claimant is a subject must concur with the general law of nations, to authorize the forfeiture. Now, if the onus be on the claimant, it is certainly not necessary for the libelant to show a prohibitory act; all that in such case is essential is, that the claimant should fail to prove a permissive one. The opinion of Sir W. Scott, in

1-2 Dodson's Rep. 239.

2.-1 Rob. Rep. 350.

3

3.-2 Dodson's 'Rep. 242; 27 Eng. Parl. Deb. 253, 254.

5. The argument seems to me to be self-destructive. *It admits that this novel [*95 principle cannot be enforced against the subjects of those nations whose municipal regulations permit it. One of two things seems to follow. Either the slave trade is not contrary to the law of nations, or the municipal law may permit what the law of nations forbids. Can any single nation control the universal law? strike piracy from the law of nations? or deprive a belligerent of the rights of contraband, or of blockade? The learned judge, in the case of La Jeune Eugenie, thus solves this difficulty: If a nation permits this traffic, the wrong is confined to the nation injured; and other nations are neither bound nor permitted to interfere. But the question recurs, what is the consequence, if a nation inhibit it? The offense must be against the power inhibiting. not, surely, against other nations, who, ex concessis, had no power either to inhibit or to permit. On this point, also, we are fortified by the opinion of Sir W. Scott.6

The case of The Amedie may, then, we think, be considered as an experiment; a trial of the legal intelligence of Europe and America, and affords no safe guide for the decisions of this tribunal.

It is obvious to remark, that the case of La Jeune Eugenie is referred to by our adversaries under circumstances of some singularity. The principles advanced by the learned judge, in delivering his opinion in that case, are maintained by our opponents, while they [*96 revolt from the conclusion to which those principles conducted him. What we ask in this case, is precisely what was done in the case of La Jeune Eugenie, that the property should be restored to the consular agents of Spain and Portugal; and yet that very case is relied upon as an authority against this concession.

The proposition, that the slave trade is inconsistent with the law of nations, is maintained on the following, among other grounds, in the case of La Jeune Eugenie:

1. Its accumulated wrongs, and consequent inconsistency with that code.

"It is of this traffic, in the aggregate of its accumulated wrongs, that I would ask," says the learned judge, if it can be consistent with the law of nations?"

66

To us, the inquiry seems to be vain and nugatory. The gravamen of the question is equally applicable to any other act of atrocity, and to

4.-1 Dodson's Rep. 85, 95; 2 Dodson's Rep. 210, 260. 5.-La Jeune Eug., 2 Mason's Rep. 409. 6.-2 Dodson's Rep. 251.