any other code of laws. Murder, robbery, &c., &c., are attended with accumulated wrong. They, too, are inconsistent with the principles of justice and humanity, which lay at the foundation of international law. Do the laws which forbid these crimes, therefore, form part of that universal law? are they governed by it, or punished by it?

2. Again, it is said, the law of nations is deduced from the general principles of right and justice; that whatever can be deduced from these principles as applicable to nations, and to 97*] the nature of moral obligation, exists theoretically in the law of nations, and may be

enforced.

It seems to us that nothing is gained by the first of these propositions. The principles of right and justice, it is most certain, are capable of being applied equally to the law of nations and to the municipal law; to nations and to individuals. But the question here is, whether, in their application to the concerns of individuals, by the act of one or more nations, or of any number less than the whole, they do not rather constitute a part of the municipal law of the nations applying them, than of the general law of nations.

3. The laws of Spain and Portugal are merely municipal, and, from the very nature of their provisions, incapable of enforcement by the courts of the United States.

4. Each sovereign has a right to the forfeiture, from the time of the commission of the act. He has the right of remission, and of pardon. Especially he has a right to decide, in his own tribunals, on the conduct of his own subjects, in relation to his own laws. A monarch, or a nation, *stripped of these necessary [*99 attributes of sovereignty, would cease to be sovereign. The attempt by the United States to enforce these laws would be an usurpation. 3. Can this court apply the laws of the United States to this claim of foreign subjects? 1. The question has been answered in the preceding argument. The laws of the United States are strictly municipal, confined to citizens of the United States, to persons committing offenses on board vessels of the United States, to foreigners seeking to introduce negroes into the United States. The claimants are not within these provisions.

2. Though the law of the United States has made this traffic piracy, it has not, therefore, made it an offense against the law of nations. The jurisdiction of the Circuit Court of the United States is exclusive for the punishment of this offense. Besides, no particular nation can increase or diminish the list of offenses punishable by the law of nations.+

The second proposition appears to us to be too broad. Without doubt, it is the right and duty of every nation to prohibit crimes, and among others this crime. It is entirely consistent with moral obligation that they should do so. What then? Is the act of a single nation, fulfilling this duty, less simply municipal, because the morality of the act which it performs is of universal obligation, equally affect-liament on this subject.' Such, in the opinion ing all nations?

3. It is urged, moreover, that the slave trade is in violation of some of the first principles which ought to govern nations. The assertion is unquestionable. But may not the same thing be said of many acts, which are confessedly the objects of municipal regulations alone? Smuggling often begins in perjury. It is prosecuted in violation of the duty of the citizen. Its tendency is to corrupt the morals of the community. It sometimes eventuates in murder. 98*] Is it an *offense cognizable by the law of nations as an infraction of that law?

For these reasons, we submit to the court that restitution cannot be refused on the ground that the slave trade is contrary to the law of

Such, in the opinion of the judge of the High Court of Admiralty in England, is the only legitimate operation of the British act of Par

of Congress, is the necessary limitation of ours." Mr. C. J. Ingersoll, on the same side, insisted *that there was no evidence in the cause [*100 which sustained the allegation that this vessel was found hovering on the coasts of the United States when she was seized; and if it were so, that would furnish no sufficient reason for refusing restitution to the Spanish and Portuguese claimants, who were unaffected by the misconduct of the piratical captors of their property. Here the capturing vessel was illegally equipped in our ports, and the libelants have established their claim to the property in question under the laws of their own country. The original capture was not only made in violation of our neutrality, but was an act of piracy, and the duty of making restitution becomes imperative under the treaty with Spain. It appears from the treaties and edicts which have been referred to, that the slave trade was then tolerated by Spain and Portugal south of the equator; and, consequently, the presumption is, that Africans, obtained within the permitted limits, are legitimately held as slaves. This presumption is as 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 length of port, and the order of the Portuguese govern- asserting that the nations who have prohibitment, are decisive on this point. The sanctioned the slave trade can compel others to join in of the colonial Governor was considered sufficient in the case of The Diana.1

nations.

2. Is the traffic contrary to the laws of Spain and Portugal; and can the court enforce those laws by refusing restitution?

1. The preceding arguments, the decision in The Louis, and even that of La Jeune Eugenie, are referred to, to prove that, as to this point, the burthen of proof is on the appellants. They must show a prohibitory act.

1.-1 Dodson's Rep. 95.

2.-4th Report Afr. Inst., Abstract, &c., 26.

3.-2 Dodson's Rep. 256.

4. Rutherf. 488, 491.

that prohibition. The case of The Amedie itself, as explained by Sir W. Scott in The Diana,§

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. 338. 8.-1 Dodson's Rep. 98, 99.

1825

THE ANTELOPE, THE VICE-CONSULS OF SPAIN AND PORTUGAL, LIBELANTS.

does not extend the principle by which the gen101*] eral prohibition *is to be enforced in the courts of another country, to the case of claimants engaged in the trade permitted by the law of their own country.

Is, then, the slave trade contrary to the law of nations?

That law is a body of political ethics applied to nations. Not being reduced to a written code, we must seek for it in the elementary writings of publicists; in judicial precedents; and in general usage and practice.' Sir W. Scott adds to these ample sources the more limited and appropriate standard of ancient and admitted practice, not only by treaties, but by the laws, ordinances and formal transactions of civilized States. The great men who drew up the report upon the Silesia loan, declare the law of nations to be "founded on justice, equity, convenience, and the reason of the thing, and confirmed by long usage."

100

was once universally participated in by the civilized nations of Europe and America. This *fact is avowed by all the speakers on [*103 both sides of the abolition question, in the British Parliament. It is matter of notorious history, that both in ancient and modern Europe, the condition of slavery, and the commerce in slaves, were santioned by the universal practice, and law of nations. The very definition of slavery in the civil law, which has been copied by writers on public law, shows that it was an institution established by positive law, against the law of nature: Servitus est constitutio juris gentium, qua quis dominio alieno contra naturam subjicitur.“ The old common law writers are full of the subject of villeinage, which, it is well known, was not abolished in England until after the period when the African slave trade commenced. The offense of vagrancy was punished with slavery by the statute, 1 Edw. VI., c. 3.5 The first case relating to the African slave trade, is that of Butts v. Pen. determined in the 29th of Charles II., being trover for negroes. The special verdict found that they were usually bought and sold in India.“ In a subsequent case, trover was brought for a negro in England. Holt, C. J., said, that trespass was the kind of action, but that trover*would lie, "if the sale was [*104 in Virginia." Other cases turn upon questions as to the form of action, but they all concur in establishing the right to this species of property. In 1689, all the judges of England, with the eminent men who then filled the offices of Attorney and Solicitor-General, concurred in opinion, that negroes were merchandise," within the general terms of the navigation act. The famous case of Somerset, whilst it determined that negroes could not be held as slaves in England, recognized the existence of slavery in the colonies, as does the whole legal policy, both of that country and of France. 10 The slave trade was long the subject of negotiations, treaties, and wars, between different European states, all of which consider it as a lawful commerce. The very declarations.in the recent European congresses, and the negotiations between Great Britain and the United States, all show that the slave trade has not yet been prohibited by anything like the unanimous consent of nations, so as to make it absolutely unlawful in the view of a court of the law of nations.

As to the judicial precedents, they neutralize each other, if, indeed, the authority of the original case of The Amedie be not entirely subverted by that of Madrazo v. Willes, and the admirable judgment of Sir. W. Scott in The Louis. To the new conventional law which is now attempted to be established in the world, the United States have not yet become parties. We cannot enforce the treaties between other powers, by which the African slave trade is de102*] nounced *as contrary to humanity and justice, and is prohibited to their subjects. No jurist has been cited, from the earliest to the most recent, who has pronounced the trade contrary to the positive law of nations. So that the court is left entirely to the light of reason in determining the question whether it be contrary to the law of nature, as properly applied to the conduct of nations and states.

If this prohibition be a part of the law of nations, it must be of the modern law of European nations. Are the United States parties to that law? And if they are, can they enforce its penal sanctions against other nations not parties to it?

66

Many principles have been at various periods asserted by confederacies of nations, which have ultimately failed to obtain a place in the general code of nations. The principles of the armed neutrality of 1780 were maintained by nearly all the powers of Europe against Great Britain alone; and yet her doctrines have not ceased to regulate the conduct of nations en- The United States have done all in their gaged in war. It is, at least, doubtful which power, consistently with their constitution, to is the true law of nations. The supposed in- abolish the trade. But they have sought to consistency of the slave trade with the law of abolish it by municipal means only. They have nature, will not alone condemn it in the view prohibited it to their own citizens, not only by the of a court of justice, so as to authorize all na-ordinary *penal sanctions of revenue [*105 tions to treat it as a crime, or to enforce its prohibition by the confiscation of the property of those engaged in it. It becomes all reflecting men to think seriously, and speak cautiously, on the subject of the illegality of a trade which

1.-United States v. Smith, 5 Wheat. Rep. 160. 2.-Le Louis, 2 Acton's Rep. 249.

3.-Hallam, Middle Ages, Vol. IV., p. 221; Gibbon's Decline and Fall, Vol. I., p. 63.

4-Domat, Loix Civ. Prel., tit. 2, s. 2; Woods' Inst. Imp. and Civ. Law, Introd. 93; Grotius, de J. B. ac P. C. 2, c. 5, s. 27; Puffend. b. 3, 2, s. 8; 1 Rutherf. b. 1, c. 20, p. 474; Bynk. Quæst. Jur. Pub. LM, c. 3, p. 20, Du Ponceau's Transl.

and trade laws; but they have made it a criminal offense, and punished it as piracy. No treaty has yet been ratified with any foreign power, by which they engage to co-operate with the United States in the prohibition; and yet the

5.--4 Reeve's Hist. Law, 451.
6.-2 Keebl. 785; 2 Lev. 201.

7.-2 Salk. 666; 1 Lord Raym. 146; 5 Mod. Rep. 185; Carth. 596.

8.-2 Chalmers' Opinion of Eminent Lawyers, 263. 9.-Cobbett's State Trials, Vol. XX., p. 1. 10.-Valin Ord. de da Mar., liv. 2, tit. 1, du Capitaine, art. 16.

court is called on to anticipate, by judicial leg- | fined by our laws; which must be the rule to islation, the exercise of the treaty-making guide the determination of the court. They power, and to refuse restitution to the subjects of Spain and Portugal, of that which they claim as their property, under the laws of their own country. This property has been brought into our jurisdiction in consequence of its having been taken from the possession of the original owners, by armaments fitted out in our ports in violation of our neutrality. The duty of restitution is therefore plain, under the laws and treaties of the Union, and the uniform decisions of this court.

The learned counsel also entered into a minute and elaborate examination of the proofs of proprietary interest, and reiterated many of the grounds of argument insisted on by his associate. But as they have been already fully stated in the report of Mr. Berrien's argument, it has not been thought necessary to repeat them.

are placed under the protection of those laws, and are, prima facie, free. On whom, then, is the onus probandi thrown. Being here rightfully, they are under the protection of our laws and courts of justice. No person can claim a right to take them from the custody of the court, and carry them away into slavery, but those who can prove them to be slaves; who can prove it by such evidence as ought alone to be held sufficient in a question of freedom or slavery. This view of the case settles the ques tion of the burthen of proof. He who would seek to disturb the apparently rightful condition of things, assumes the burthen of proving his own right. This is the ordinary doctrine of the Court of Admiralty, if the seizure has been rightful, and the case is, prima facie, a case for condemnation. The onus probandi is thrown upon the claimant to prove his property, and The Attorney-General, for the appellants, in his right to restitution. But, in the present reply, answered the objection, that the only case, the rule is peculiarly applicable, and the question presented by the pleadings, on the part clearness and fullness of the *proof [*108 of the United States, was, whether this was a ought to be in proportion to the importance of trade in breach of the slave trade acts? He in- the matter in controversy. The case is one of sisted, that as the libels filed by the Spanish and human liberty. The Africans stand before the Portuguese consuls, demanded restitution upon court as if brought up before it upon a habeas 106*] the *ground of the illegal armament in corpus. Suppose them here, on such a process, our ports, and the claim, or defensive allega asserting their freedom, and claiming your protion, given in by the United States, resisted that tection; what kind of proof would you exact demand upon two specific grounds: (1st) That from those who claim to hold them in slavery? the Africans were taken on board with intent Most certainly you would not demand inferior to import the same, &c.; and (2d) that the ves- evidence to that which you require in a case of sel was found hovering on the coast with the life or death. The witnesses must present themsame persons on board. If the testimony dis- selves fairly before you. Their statements closed a case on which it would be proper for must be clear and consistent, and such as to the United States to interpose, which was not command the confidence of the court. They reached by the pleadings, the consequence would must be sustained by the documentary evidence; be, not that the decrees should be affirmed, but and, where any doubt is left, the decision that the cause would be remanded, with should be in favorum libertatis. directions to amend. And, supposing the United States to have made no case by their pleadings, the question was, have the libelants made a case which justifies the decree? The Africans are parties to the cause, at least such of them as are free; and even if the other parties had colluded to make a case for restitution, they would still have been entitled to the protection of the court.

As to the seizure by the revenue cutter, he insisted that it was justifiable under the slave trade act of the 2d of March, 1807, s. 7, which forfeits "any ship or vessel found hovering on the coast of the United States, having on board any negro, mulatto, or person of color, for the purpose of selling them as slaves, or with intent to land the same in any port or place within the jurisdiction of the United States." This act made no distinction as to the national character of the ship, whether it belonged to citizens or foreigners. So, also, the act of the 15th of May, 1820, c. 113, s. 5, makes the slave trade 107*] *piracy, where it is carried on by citizens of the United States. So that, whether we regard the predicament of the vessel, or of the persons engaged in the transaction, the seizure was fully warranted by the laws applicable to the case. Captain Jackson performed only an act of duty in capturing and bringing in the vessel for adjudication.

The question, then, recurs, what was the condition of the Africans thus brought in, as de

The claimants wish the court to consider this as a question exclusively between Spain on one side, and the United States on the other, in which these persons are to be considered as

effects," and merchandise," taken by pirates, and as such liable to restitution under the stipu lations of the treaty of 1795. But is the court at liberty so to consider them, under the laws of our own country? Some of them are confessedly free, because the decree has established the fact. Which of them are slaves, it is impossible to determine by any rule of evidence known to our practice. The claimants must prove their property; and this involves the necessity of proving that these persons are property. They must prove that they are property, and that they are *their property. Pos- [*109 session may be a sufficient indicium of property, in those places where the local law makes a particular subject property. The local laws of some of the states, generally make persons of color, prima facie, slaves, and throw the bur then of proof upon them to show the contrary. But even in those states, the possession of a newly imported African would not be evidence of property. The question, therefore, recurs, is it enough to justify the court in delivering up these persons to the parties for whom they are claimed, to show a possession on the high seas? Is the mere possession of such persons a sufficient evidence of their slavery to justify it in restoring them as claimed? The question

is not whether the cruisers of the United States | hence, that, by the law of nations, he has a have a right to seize a Spanish slave ship upon the high seas, bring her in for adjudication, and throw the burthen of proof of proprietary interest upon the claimants. Any such right of interference with foreign states, their subjects, or people, is disclaimed. But these people are here, in the custody of the court, without any invasion of the sovereignty of foreign nations on our part; for the piratical vessel, which took them out of other vessels sailing under Spanish and Portuguese colors, was not acting under the authority, or upon the responsibility of the United States. They are brought here by a seizure authorized by our own laws, and perfectly consistent with the sovereignty and independence of Spain and Portugal. The laws, under which they were seized and brought in, de110*] clare them to be entitled to their free dom. Can the court surrender them as slaves upon no other proof than mere naked possession? Is the possession of Africans, on the coast of Africa, sufficient evidence of title, per se, without connecting that possession with any law, international or municipal, to justify the court in taking an active part in consigning to slavery these persons, thus placed under its pro

tection?

It is unnecessary for the United States to show that the possession was, prima facie, wrongful. The opposite parties, who call upon the active aid of the court to maintain that possession, must prove that it was rightful. The real question, then, is, whether the mere possession, under such circumstances, is sufficient evidence of title, not as against the United States, but as against these Africans. The court will not shut their eyes to what is passing in the world. Such a possession may be evidence of title in some of the states of this Union, and in the European colonies. It might have been so formerly on the coast of Africa. But it is not so now, even under the municipal laws of Spain and Portugal. Both of these powers have prohibited the slave trade on the coast of Africa to the north of the line, since 1815. It was prohibited long before by the United States and Great Britain, on every part of the coast, and of the world. It has been prohibited by France. Holland, and all the principal maritime states of Europe. Under these circumstances, it is impossible for the court to say 111*] that possession on the coast of *Africa is so habitually found in connection with right, under the municipal laws of the country to which the vessel belongs, as to constitute prima facie evidence of property. The presumption ought rather to be reversed. The natives of Africa, however imperfect may be their civilization, compose an independent nation. By the general law of nations, they are as free as the Spaniards, or the Portuguese. Hence, it may be seen that the mere possession of an African, claiming him as a slave, by a Spanish ship on the coast of Africa, would no more prove the African a slave, than the possession of a Spaniard, by an African ship on the coast of Spain, would prove the Spaniard a slave. The actual possessor must, therefore, show some other right than mere possession. The Spaniard alleges that it has been the practice of the civilized and Christian nations of Europe, to make slaves of the Africans for three centuries; and

right to make slaves of them. The African opens the volume of the law of nations, and shows that the foundations of that code are laid in justice and humanity, and that no legitimate right can grow out of a violation of these principles. If he is answered, that the trade had its origin in humane motives, he may well upbraid us for such a vindication. Nor does the existence of slavery in the United States form any excuse or palliation, for perpetuating, and extending the guilt and misery of the slave trade. Slavery was introduced among us, during our colonial state, against the solemn remonstrances *of our legislative assem- [*112 blies. Free America did not introduce it. She led the way in measures for prohibiting the slave trade. The revolution which made us an independent nation, found slavery existing among us. It is a calamity entailed upon us by the commercial policy of the parent country.' There is no nation which has a right to reproach us with the supposed inconsistency of our endeavoring to extirpate the slave trade as carried on between Africa and America, whilst at the same time we are compelled to tolerate the existence of domestic slavery under our own municipal laws.

It may well be asked, whether Africa is without the pale of the law of nations. Are not Africans in their own country, under the protection of that law? If it be answered, that the condition of slavery has existed from time immemorial, growing out of the exercise of the rights of war, as understood and practiced in that barbarous country, it may be replied, that those very wars have been stimulated by the arts and avarice of the slave traders. This fact is shown by the most conclusive evidence, in the examinations before the House of Commons in 1791. It appears, also, by the more recent reports of the American and British naval officers, and the agents of the London African Institution, and American Colonization Society. Unless, therefore, the slave traders can derive a right, founded upon wrong [*113 practiced at their instigation, this argument cannot avail them.

Their possession, then, derives no support from the law of nations. Supposing that by the municipal law of Spain these persons are slaves, whilst by your law they are free; being brought into this country without any trespass on the sovereign rights of Spain, is the court bound to restore them from comity? If the general law of nations binds us to do this, it also binds us to deliver up persons charged with crimes, or even with political offenses. But this is a principle which has been repudiated by all nations. The stipulation in the Spanish treaty, by which we are bound to restore the ships and effects, or merchandise of Spanish subjects, when captured within our territorial jurisdiction, or by pirates on the high seas, does not apply. These Africans are not effects," or merchandise." To say that they are so, is to beg the whole question in controversy. The opinions of the twelve judges of England, and of the law officers of

1. Hargrave's argument, in Somersett's case, 11 State Trials, 346.

1.-Somersett's case, 11 State Trials, 339, 346.

the crown, in 1689, which have been cited to | eral sentiment was at length roused against it, show that negroes were considered as merchandise, within the terms of the navigation act, only prove that they were so considered at that time with reference to the British colonies, into which their importation was then permitted. Even at that period, negroes in England were not considered as merchandise, or the objects of traffic, or liable to be held in servitude. Everything must depend upon the law prevail114* ing *at the time and place. By the law applicable to this case, these persons are free; they cannot, therefore, be considered as merchandise or effects within the treaty.

The consuis of Spain and Portugal, respectively, demand these Africans as slaves, who have, in the regular course of legitimate commerce, been acquired as property by the sub-ions should be entertained on the precise cases jects of their respective sovereigns, and claim their restitution under the laws of the United States.

The Diana (1 Dodson's Rep., 95), was a Swedish vessel, captured with a cargo of slaves, The course of unexamined opinion, which by a British cruiser, and condemned in the was founded on this inveterate usage, received Court of Vice-Admiralty at Sierra Leone. This its first check in America; and, as soon as these sentence was reversed on appeal, and Sir Will states acquired the right of self-government, iam Scott, in pronouncing the sentence of rethe traffic was forbidden by most of them. In versal, said, "the condemnation also took the beginning of this century, several humane place on a principle which this court cannot in and enlightened individuals of Great Britain any manner recognize, inasmuch as the sendevoted themselves to the cause of the Afri- tence affirms, that the slave trade, from mocans; and, by frequent appeals to the nation, in tives of humanity, hath been abolished by most which the enormity of this commerce was un- civilized nations, and is not, at the present veiled and exposed to the public eye, the gen-time, legally authorized by any.' This appears