페이지 이미지

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 acquired the possession of these negroes lawto have become probibited?

fully, without wrong; that with the possession Again; supposing the slave trade not yet to so acquired, they have incurred the obligation have become generally illegal; still it has become to protect them; that all presumptions are in so to the subjects of those countries who have favorem libertatis; and, whatever the laws of issued declarations against the trade. To such other countries may tolerate or ordain, having the argumentum ad hominem may be fairly ap- ourselves declared the slave trade to be contrary plied, as Sir W. Scott says in The Louis. Spain to the principles of humanity and justice, we and Portugal are among the countries who have are bound, prima facie, to hold that there can issued the most formal declarations against this be no property in a human being. trade, although they have not yet taken the most *This proposition suggests the follow- [*82 effectual measures to suppress it. By the treat-ing inquiries: ies between these powers and Great Britain, 1. Was the possession lawfully acquired ? they have stipulated the entire abolition of the 2. If so, does the right which is asserted necslave trade north of the equator. But their au- essarily follow? thentic declarations pronounce it to be unlaw- 3. With a view to their own peculiar condi. ful and inhuman, wherever carried on; and the tion, can the United States exercise such a permission to continue it south of the line can power? 80*] only *affect them, and their subjects, and 1. The lawfulness of the possession will be the powers with whom they have made such determined by considering the capacity of the treaties. Their subjects cannot avail themselves seizing officer to make the seizure, in connection of the permission, so far as other nations are with the liability of the thing seized. concerned. Those nations have a right to look The seizure was made by John Jackson, comto the declarations as authentic evidence of the mander of the revenue cutter Dallas, belonging understanding of the Spanish and Portuguese to the district of Georgia; and was made off governments, as to the law of nations.

the coast of Florida, while that was yet a provBut suppose they can avail themselves of the ince of Spain. The right of Captain Jackson permission to trade in slaves within the limite must have resulted from the authority given by prescribed by the treaties. The onus probandi his commission, and the laws of the United is thrown upon them to bring themselves within States.' those limits. This they have failed to do by It did not result from the act of 1799, providsatisfactory evidence.

ing for the establishment of revenue cutters; And even if the law was in their favor, and for this only authorizes them to board vessels they had shown the trade in which they were on the coasts of their respective districts, or engaged to be within the limits permitted by within four leagues thereof; nor from the arts the treaties, such a general claim could not be forbidding the slave trade, for these are directed given in by the consuls of Spain and Portugal only against vessels of the United States, or for their fellow-subjects. The court has a right foreign vessels intending to violate our laws by to the oath of the individual owners, as to their introducing negroes into the United States. proprietary interest, and to explain the other The President is, indeed, authorized to employ circumstances of the case. As to the Portuguese the armed vessels of the United States, to cruise claim, the owners are still unknown, and it is on the coasts of the United States, or territories impossible that restitution can be made to the thereof, or of * Africa, or elsewhere, and [*83 consul, or even to his government, merely upon to instruct them to bring in all vessels found evidence that the Africans were taken from a contravening those acts. But the laws of the vessel sailing under the Portuguese flag and pa- United States can operate only on American pers, without any specific proof of the individ- vessels, on American citizens on board of forual proprietary interest.

eign vessels, or on such vessels within the limits Lastly; if some of those Africans were the and jurisdiction of the United States. Besides, property of the claimants, some were not; and, it is not pretended that the revenue cutter Dalfailing to identify their own, they are not enti- las had been selected as a cruising vessel under 81*] tled *to restitution of any as slaves, since these acts, or that Captain Jackson had reamong them may be included some who are enceived any instructions from the President of titled to their freedom. The proof, by lot, the United States. Neither can the seizor dewhich was substituted by the court below for rive any aid from the acts to preserve the neuordinary legal proof, is not satisfactory, espe- tral relations of the United States; for although cially where a claim to freedom conflicts with the courts of the United States will restore a claim to property.

property taken in violation of these acts, when Mr. Berrien, for the respondents, stated that it is found within their jurisdiction, yet they do a reference to the transcript would show, that not authorize the cruisers of the United States of all the parties to this cause in the court be to rove the ocean in search of objects on which low, the United States, and the Spanish and that jurisdiction may be exercised. Portuguese vice-consuls, are alone before this So far, then, as it depends on the official court; and that the United States, acquiescing character of the seizor, the act was lawless. in all the residue of the decree, have appealed The thing seized was a Spanish vessel, in the from only so much as directs restitution to the possession of persons, some of whom were Spanish and Portuguese vice-consuls.

American citizens, who had captured it jure The allowance of these claims is resisted on belli, under the flag of Artegas, or of Venezuela, various grounds.

and in a vessel which had been fitted out, or One prominent proposition pervades the whose armament had been increased, in the whole of the opposite argument. Unless w can United States. meet and resist it, we must submit to be its vic

1.–The Louis, 2 Dodson's Rep. 238.

The right to seize for a violation of the acts visionary. I find it difficult to form a concepto preserve the neutral relations of the United tion of a pledge, which the party making it can States, has been already spoken of; but the ad. at any time capriciously recall; and yet no one verse argument considers these captors as pi. doubts that an act of the American Congress rates, and asserts the right of every individual can, at any moment, throw open the slave 84*] to war *against them as enemies of the trade. human race. The answer is,

These considerations apart, would it become 1. The seizure by Captain Jackson was not the United States to assume to themselves the made on that ground. The libel alleges the character of censors of the morals of the world seizure to have been made for a violation of the on this subject; to realize the lofty conception act of 1818, prohibiting the slave trade. of the adverse counsel, and consider themselves

2. The courts of the United States have de- as the ministers of heaven, called to wipe out clined to decide that such an act would amount from among the nations the stain of this iniq. to piracy.

uity? Might not the foreign claimant thus re3. To put himself in a situation to make this buke them, in the strong language of truth? seizure, Captain Jackson abandoned the duty For more than thirty years you were slave enjoined upon him by his commission, and the traders; you are still extensively slave owners. laws of the United States, by leaving the limits If the slave trade be robbery, you were robbers, intrusted to his vigilance. If he had lost his and are yet clinging to your plunder. For vessel, could he have justified himself before a more than twenty years this traffic was procourt-martial?

tected by your constitution, exempted from 4. But if these men were pirates, and law- the whol of your legislative power; its fully brought in, then the Spanish property fruits yet lay at the foundation of that compact. was

, from the moment of its introduction, un- The principle by which you continue to enjoy der the protection of the ninth article of the them, is protected by that constitution, forms treaty of San Lorenzo el Real.

a basis for your representatives, is infused into Neither have the United States acquired any your laws, and mingles itself with all the rights to enforce against these foreigners their sources of authority. Relieve yourselves from own speculative notions on this subject, in con- these absurdities, before you assume the right sequence of their being actors. All parties are of sitting in judgment on the morality of other actors in a court of admiralty, and these parties nations. But this you cannot do. Paradoxical only became so after their property had been as it may appear, they constitute the very bond taken into the custody of the marshal, and at of your union. The shield of your constituthe suit of the United States. But they were tion protects them from your touch. entitled, under the treaty, to bave restitution of *We have no pretense, then, to enforce [*87 their property, without being put to other against others our own peculiar notions of morproof than that it was found in their possession. | ality. The standard of morality, by which

2. If the possession had been lawfully ac-i courts of justice must be guided, is that which 85*) quired, *could the court refuse restitution the law prescribes.” on the ground suggested?

The learned counsel here proceeded to exThe great case on this subject, is that of The amine the evidence of proprietary interest, and Louis Our adversaries agree to refer the insisted that (besides the other testimony) the question to its decision.

official interposition of the Portuguese govern. It is a singular mistake, to suppose that Sir ment supplied the place of proof of individual W. Scott directed restitution solely on the interest, and established the legality of the ground of the unlawfulness of the seizure; and traffic.? thence to infer, that if the seizure had been The objection to the decree of the Circuit lawful, he would have condemned. On the Court, on the ground that the distribution of contrary, admitting the lawfulness of the seiz- the negroes was directed to be made by lot, was ure, he decides expressly that restitution must, answered by the following considerations: notwithstanding, be awarded.

1. It appearing that the negroes found on 3. With a view to their own peculiar situa- board the Antelope consisted of three distinct tion, could the United States maintain the doc- parcels, taken from American, Spanish, and trines contended for? It is said, that, having Portuguese vessels, the obligation to protect the promulgated our policy in relation to this sub- former was equal to, and not greater than, that ject, we have thereby given a warning to slave which required the restoration of the latter. traders, which they are bound to respect-a The capture by Smith being considered, as in pledge to the rest of the world which we are the argument of our adversaries it is considered, bound to redeem. But what is this policy, as piratical, the right of the Spanish claimant which we have thus notified to the world? It is to restoration under the treaty was the primary to be found in our laws, inhibiting the slave right, as founded on the treaty which is the trade. The penalties of these are denounced supreme law; and in the fair construction of against our own vessels, and our own citizens, that treaty, it extended to every thing found on who shall engage in this traffic anywhere; and board the Spanish vessel. Then the proof against foreigners and their vessels, who pursue which should diminish that right was to be it for the purpose of introducing negroes into furnished by those who sought to diminish it. the United States. There is no warning to the *2. It being ascertained that these ne- [*88 subjects of Spain and Portugal, quietly pursu- groes were pmperty, they were liable to distri. ing this traffic under the sanction of their own bution as other property; and, notwithstanding laws.

the assertion to the contrary, the lot is often 86*] *The notion of the pledge is equally

2.-T Louis, 2 Dodson's Rep. 249. 1.-2 Dodson's Rep. 243, 249, 264.

3.-The Bello Corrunes, 6 Wheat. Rep. 152. Wheat. 10. U. S., Book 6. 18


and legally resorted to, to separate undivided | as that is interpreted by those who adopt them, interests.

and resting in usage, or established by compact, 3. As between the Spanish and Portuguese for regulating the intercourse of nations with claimants, no question on this point can arise each other. here, because they have not appealed.

Rights and obligations are interior between 4. The United States cannot question this sovereign and people, and are regulated by the part of the decree, because they have not only municipal law; or exterior, between nations not appealed from it, but have actually pro- considered as moral persons; and these are ceeded to enforce it ex-parte, and have received regulated by the law of nations. restitution by lot of the negroes taken from the Now, the slave trade is not contrary to the American vessel.

natural law of nations, because, until recently, The United States have, then, derived no it was universally tolerated and encouraged. It right to refuse restitution, from the manner in is not contrary to the positive law of nations, which they have acquired possession.

because there is no general compact inbibiting They are not entitled, by law, or the stipula it; and nothing is more certain, than that the tions of treaty, to apply their speculative no- usage, or compact, even of a majority of nations of morality to the subjects of Spain and tions, cannot produce rights or obligations Portugal.

among others. To what other evidences of the They have ill-grounded pretensions in refer- law of nations can we resort, except those of ence to this ill-fated subject, to set themselves usage and compact; the former interpreting up as the moral censors of the civilized world. the rules of natural reason, the latter stipulating Here is evidence of a proprietary interest to those of positive institution? satisfy the mind beyond a reasonable doubt, From this general view it would seem that and it wholly uncontradicted; and the passport the slave trade is untouched by the law of naof the King of Spain, and the interposition of tions. Let us render our inquiries more parthe government of Portugal, show, if there be ticular. any necessity for it, the legality of the traffic, Is this traffic considered to be contrary to the as to their respective subjects.

law of nations, by the statesmen and jurists of On what ground, then, is restitution refused? Europe and America? 89*] *It is said, the slave trade is unlawful, *We are all aware of the conferences [*91 contrary to the principles of justice and hu- of the European powers on this subject, at manity, and that no right can be derived from Vienna, at Aix la Chapelle, and at London. so nefarious a traffic.

But all the efforts of Great Britain to have it Our inquiry is, by what law, which this so denounced were ineffectual. The marginal court is competent to enforce, is it inhibited? references point to the answers of the several

1. Is it contrary to the law of nations? powers respectively, and to the note and the 2. Is it contrary to the laws of the sovereigns answer of Lord Castlereagh; and all of them of the claimants; and can this court refuse distinctly show that the inhibiting of this trafrestitution for that cause?

fic finds no place in the code of international 3. Is it contrary to the laws of the United law.! States; and can those laws be enforced against The reports of various committees of Conthese claimants?

gress in the United States, also clearly prove 1. What is the slave trade, considered as a that, in the view of American statesmen, this subject on which the law of nations can oper- traffic is not inhibited by the law of nations, ate. Slavery exists, and has from all time since the object of them all is to devise means existed, in Africa, and in many other countries. by which it may be so inhibited." Where it exists, there will, of course, be an in- After all, these conferences are only valuable terior traffic in slaves, which the law of nations as evidence of opinion, since they could not efcannot touch. It is only on the transportation fect any change in the law of nations. On this of negroes between two countries mutually subject the opinion of Sir W. Scott is distincttolerating slavery, that this operation is con- ly expressed, in the case of The Louis. tended for. But this transportation is but an Among jurists, we find the judges of the K. incident to the original sin of slavery. If hu- B. in England, denying that the slave trade is manity nerves the arm of the law, why is its contrary to the law of nations." force spent on the incident? Why is it power- And the same doctrine is announced by Sir less in relation to the principal wrong? W. Scott, after the most elaborate investigation,

If the traffic in slaves be considered as in- in the case of The Louis.5 creasing the number of victims, by affording a *The only opposing cases are those of [*92 market for them, what is it then but an aggres- The Amedies and La Jeune Eugenie." sion by the subjects of one nation on the rights And, first, of The Amedie. It is most obof another? If the nation forbids it, the of- vious that this case has not been considered by fender is punished by the municipal law; if the the statesmen of Europe as establishing the 90*] nation *permits it, she herself becomes doctrine contended for. The conferences to the aggressor. In either case, how does it con- which we have just referred, look to a general cern other nations?

compact among nations as the only mode by The law of nations may be defined to be a which this traffic can be inhibited, and pro collection of rules deduced from natural reason, pose, by general suffrage, to declare it piracy, 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, l'he Diana and The Louis. 4 But if the British ministry had so considered 3. How can even the rigid rule laid down this case, they would most surely have availed by that court be availed of? The court exthemselves of it in these conferences. That it pressly decline to decide what will be the effect was not so viewed by Sir W. Scott is most cer- of the proof, if made, declaring that a claimant, tain; or. bound as his judicial conscience was under such circumstances, is not entitled to be by the decision of the Court of Appeals. he heard in any court. Of what avail, then, is could not have pronounced the opinion given the proof? in the case of The Louis. The argument in 4. I find a difficulty in understanding what the case of The Amedie is founded entirely on principles of the law of nations are not general the effect of the British act of Parliament. Be in their operation, and yet the inhibition of the fore the passing of that act, the learned judge slave trade is said not to be one of the general declares, that no court in England could have principles of that law. pronounced the slave trade to be illegal; since 5. The argument seems to me to be self-deit is prima facie illegal everywhere, and on structive. *It admits that this novel [*95 principles of universal law a claimant is not en- principle cannot be enforced against the subtitled to be heard in any court. We inquire, jects of those nations whose municipal regula

1.-4th Report African Institution, Russia, 20, 21; France, 23. 24; Austria, 26; Prussia, Ib; Lord Castlereagh, 19, 20, 31, 32.

2.--Vide Appendix Note I, a, p. 1-32.

3.-2 Dodson's Rep. 252, 253.

4.- Madrazo v. Willis, 3 Barnwell and Ald. 363.
5.--2 Dodson's Rep. 210.
6.-1 Acton's Rep. 240.
7.-2 Mason's Rep. 409.

1. If, before the enactment of the British act tions permit it. One of two things seems to of Parliament, the slave trade was not forbid follow. Either the slave trade is not contrary den, how that act could have changed the uni- to the law of nations, or the municipal law 93*) qversal *law? It is said, that that act, may permit what the law of nations forbids. proprio rigore, rendered it, prima facie, illegal Can any single nation control the universal law? everywhere, incapable abstractly of having a strike piracy from the law of nations? or delegal existence. Are these not mere caballistic prive à belligerent of the rights of contraterms, too occult for the apprehension of a le- band, or of blockade? The learned judge, in gal mind?

the case of La Jeune Eugenie, thus solves this Consider the operation ascribed to this act of difficulty: If a nation permits this traffic, the Parliament. Jurisdiction, derived from place, wrong is contined to the nation injured; and is confined to the territory of the sovereign, other nations are neither bound nor permitted from the person, to his own subjects; but here to interfere. But the question recurs, what is is an act of the British Parliament, which, ac- the consequence, if a nation inhibit it? The cording to Sir Wm. Grant, operates locally offense must be against the power inhibiting, throughout all space, and personally over every not, surely, against other nations, who, ex conindividual in the various communities of na- cessis, had no power either to inhibit or to pertions. Sir W. Scott holds a doctrine directly mit. On this point, also, we are fortified by opposite to this, in the case so often cited.' It the opinion of Sir W. Scott.6 did not arise from the locality of the tribunal, The case of The Amedie may, then, we think, for it was solemnly held, in the case of The be considered as an experiment; a trial of the Maria" (the Swedish convoy), that this could legal intelligence of Europe and America, and not influence its decisions.

affords no safe guide for the decisions of this 2. By what rule, other than that of sic volo, sic tribunal. jubeo, did the master of the rolls throw the It is obvious to remark, that the case of La burthen of proof on the claimants? It is said, Jeune Eugenie is referred to by our adversaries because the slave trade is illegal, contrary to under circumstances of some singularity. The justice and humanity; that human beings are principles advanced by the learned judge, in not the subjects of property. The obvious delivering his opinion in that case, are mainanswer is, this is a petitio principii. It assumes tained *by our opponents, while they [*96 the very question in controversy. The case revolt from the conclusion to which those admits, and so the fact was, that up to the time principles conducted him. What we ask in when this act was passed, with the exception this case, is precisely what was done in the case of America, this traffic was everywhere lawful; of La Jeune Eugenie, that the property should 94*) that properiy *was acquired by it. If at be restored to the consular agents of Spain and that time it had become otherwise, ihe change Portugal; and yet that very case is relied upon must have been effected by some positive act. as an authority against this concession. The assertion that such an act existed, was an The proposition, that the slave trade is inaffirmative proposition. He who made it was consistent with the law of nations, is mainbound to prove it.. Such is the opinion of Sir tained on the following, among other grounds, W. Scott, and of Sir J. M'Intosh. Nay, in the in the case of La Jeune Eugenie: case of La Jeune Eugenie, it is admitted that a 1. Its accumulated wrongs, and consequent prohibitory act of the country of which the inconsistency with that code. claimant is a subject must concur with the gen- “It is of this traffic, in the aggregate of its eral law of nations, to authorize the forfeiture. accumulated wrongs, that I would ask,” says Now, if the onus be on the claimant, it is cer- the learned judge, “if it can be consistent with tainly not necessary for the libelant to show a the law of nations?" prohibitory act; all that in such case is essential To us, the inquiry seems to be vain and nugais, that the claimant should fail to prove a per- tory. The gravamen of the question is equally missive one.

The opinion of Sir W. Scott, in applicable to any other act of atrocity, and to

1-2 Dodson's Rep. 239. 2.-1 Rob. Rep. 350. 3.-2 Dodson's Rep. 212; 27 Eng. Parl. Deb. 253, 34.

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.

do so.

any other code of laws. Murder, robbery,&c., l. 3. The laws of Spain and Portugal are mere&c., are attended with accumulated wrong. ly municipal, and, from the very nature of their They, too, are inconsistent with the principles provisions, incapable of enforcement by the of justice and humanity, which lay at the courts of the United States. foundation of international law. Do the laws 4. Each sovereign has a right to the forwhich forbid these crimes, therefore, form part feiture, from the time of the commission of the of that universal law? are they governed by it, act. He has the right of remission, and of or punished by it?

pardon. Especially he has a right to decide, 2. Again, it is said, the law of nations is in his own tribunals, on the conduct of his own deduced from the general principles of right subjects, in relation to his own laws.? A monarch, and justice; that whatever can be deduced from or a nation, *stripped of these necessary [*99 these principles as applicable to nations, and to attributes of sovereignty, would cease to be 97*] the *nature of moral obligation, exists sovereign. The attempt by the United States theoretically in the law of nations, and may be to enforce these laws would be an usurpation. enforced.

3. Can this court apply the laws of the UnitIt seems to us that nothing is gained by the ed States to this claim of foreign subjects? first of these propositions. The principles of 1. The question has been answered in the right and justice, it is most certain, are capable preceding argument. The laws of the United of being applied equally to the law of nations States are strictly municipal, confined to citiand to the municipal law; to nations and to in- zens of the United States, to persons commitdividuals. But the question here is, whether, ting offenses on board vessels of the United in their application to the concerns of individ- States, to foreigners seeking to introduce uals, by the act of one or more nations, or of negroes into the United States. The claimants any number less than the whole, they do not are not within these provisions. rather constitute a part of the municipal law of 2. Though the law of the United States has the nations applying them, than of the general made this traffic piracy, it has not, therefore, law of nations.

made it an offense against the law of nations. The second proposition appears to us to be The jurisdiction of the Circuit Court of the 100 broad. Without doubt, it is the right and United States is exclusive for the punishment duty of every nation to prohibit crimes, and of this offense. Besides, no particular nation among others this crime. It is entirely con- can increase or diminish the list of offenses sistent with moral obligation that they should punishable by the law of nations.*

What then? Is the act of a single na- Such, in the opinion of the judge of the High tion, fulfilling this duty, less simply municipal, Court of Admiralty in England, is the only because the morality of the act which it per- legitimate operation of the British act of Parforms is of universal obligation, equally affect- liament on this subject.5 Such, in the opinion ing all nations?

of Congress, is the necessary limitation of ours. 3. It is urged, moreover, that the slave trade Mr. C. J. Ingersoll, on the same side, insisted is in violation of some of the first principles *that there was no evidence in the cause [*100 which ought to govern nations. The assertion which sustained the allegation that this vessel is unquestionable. But may not the same thing was found hovering on the coasts of the United be said of many acts, which are confessedly the States when she was seized; and if it were so, objects of municipal regulations alone? Smug: that would furnish no sufficient reason for regling often begins in perjury. It is prosecuted fusing restitution to the Spanish and Portuguese in violation of the duty of the citizen. Its ten- claimants, who were unaffected by the miscondency is to corrupt the morals of the com- duct of the piratical captors of their property. munity. It sometimes eventuates in murder. Here the capturing vessel was illegally equipped 98*) Is it an *offense cognizable by the law of in our ports, and the libelants have established nations as an infraction of that law?

their claim to the property in question under For these reasons, we submit to the court the laws of their own country. The original that restitution cannot be refused on the ground capture was not only made in violation of our that the slave trade is contrary to the law of neutrality, but was an act of piracy, and the nations.

duty of making restitution becomes imperative 2. Is the traffic contrary to the laws of Spain under the treaty with Spain. It appears from and Portugal; and can the court enforce those the treaties and edicts which hare been referred laws by refusing restitution?

to, that the slave trade was then tolerated by 1. The preceding arguments, the decision in Spain and Portugal south of the equator; and, The Louis, and even that of La Jeune Eugenie, consequently, the presumption is, that Africans, are referred to, to prove that, as to this point, obtained within the permitted limits, are legitithe burthen of proof is on the appellants. They mately held as slaves. This presumption is as must show a prohibitory act.

strong as that which prevails in those states of 2. If the burthen of proof be with us, we the Union where slavery exists. None of the have furnished the evidence. The royal pass- judicial decisions cited have gone the lengih of port, and the order of the Portuguese govern- asserting that the nations who have probibitment, are decisive on this point. The sanctioned the slave trade can compel others to join in of the colonial Governor was considered suf-that prohibition. The case of The Amedie itficient in the case of The Diana.?

self, as explained by Sir W. Scott in The Diana,

1.-1 Dodson's Rep. 95.
2.--4th Report Afr. Inst., Abstract, &c., 26.
3.-2 D Ison's Rep. 256.
4.-Rutherf. 488, 491.

5.-2 Dodson's Rep. 239.
6.- Vide Appendix, Note I, a, report of committee
of the House of Representatives, 1824, 1825.

7.-The Josefa Segunda, 5 Wheat. Rep. 38.
8.-1 Dodson's Rep. 98, 99.

« 이전계속 »