LECTURE IX.



OF OFFENSES 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. [1]

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, in the first place, under the

protection of public opinion. It is enforced by the censures of the

press, and by the moral influence 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 consequences 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 nations is likewise enforced

by the sanctions of municipal law, and the of fences which fall more

immediately under its cognizance, and which are the most obvious, the

most extensive, and most injurious in their effects, are the 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.) 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. [2]



(2.) 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. [3] 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 Ann, c.

12. to a dangerous extent. That statute prostrated all the 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 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. [4]



(3.) Piracy is robbery, or a forcible depredation on the high seas,

without lawful authority, and done animo furandi. 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.

[5] Pirates have been regarded by all civilized nations as the enemies

of the human race, and the most atrocious violators of the universal law

of society. [6] They are every where 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 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, 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

recognise 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. [7]



By the constitution of the United States, Congress were 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 30th, 1790, sec. 8. that

murder or 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 endeavour 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. Accessaries to such

piracies before the fact, are punishable in like manner; but accessaries

after the fact are only punishable with fine and imprisonment. And, by

the act of March 3d, 1819, sec. 5 (and which act was made perpetual by

the act of 15th of May, 1820, sec. 2.) 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. It was again

declared, by the act of Congress of 15th of May, 1820, 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 should be

adjudged a pirate. So, if any person concerned in any particular

enterprise, or belonging to any particular crew, should land, and commit

robbery on shore, such an offender should also be adjudged a pirate. The

statute, in this respect, seems to be only declaratory of the law of

nations; for, upon the doctrine of the case of Lindo v. Rodney, [8] such

plunder and robbery ashore, by the crew, and with the aid of vessels, is

a marine case, and of admiralty jurisdiction.



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; [9] 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

determinate 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 provision 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.



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. [10] 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 punishable by

all. In the case of the United States v. Palmer, [11] 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

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. [12]

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 subjects of any

foreign power, was not piracy. The same court, afterwards, in the case

of the United States v. Klintock, [13] 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 his control. But it applied to offences

committed against all nations, by persons who, by common consent, were

equally amenable to the laws of all nations.



It was further held, in the case of the United States v. Pirates, [14]

and in the case of the United States v. Holmes, [15] in pursuance 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. The Barbary powers,

notwithstanding some doubts which formerly existed, are now, and have

for a century past, 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 as a government, a code

of laws, a national treasury, the consent and agreement of the citizens,

and which pays a regard to treaties of peace and alliance; [16] and all

these things, says Bynkershoeck, [17] 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 prisoner, and require a heavy

ransom for their redemption. But this, Bynkershoeck 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, upwards 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 in favour of general humanity, deserves some portion of that

exalted eulogy bestowed by Montesquieu [18] on the treaty made by Gelon,

King of Syracuse, with the Carthagenians. It would have been still more

worthy of a comparison, if it had not left colour for the construction,

that the renunciation 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 great Christian power on this side of the

Atlantic, whose presence and whose trade is constantly seen and felt in

the Mediterranean, had not seemed to have been entirely forgotten.



But, notwithstanding Bynkershoeck had insisted, 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, [19] 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, [20] 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.



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.

Bynkershoeck justly opposes this dangerous opinion, [21] 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 and 12 Wm. III. c.

7. and have, by the act of Congress of April 30th, 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

colour of any commission from any foreign prince or state, or on

presence 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 may be 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. [22]



(4.) 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 United States. Whether it is to be considered as

an offence against the law of nations, independent of compact, 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 . 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. [23] In modern times, treaties have

been framed, and national monopolies sought, to facilitate and extend

commerce in this species of property. It has been interwoven into the

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 soon come to believe

that we ourselves were not Christians. Why has it not, says he, entered

into the heads of the European princes, who make so many useless

conventions, to make one general stipulation in favour of humanity. [24]

We shall see presently that this suggestion was, in some degree, carried

into practice by a modern European congress.



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. By the acts of March 22d, 1794, and May 10th, 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 county or

place to another. 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 that part of the

traffic also. 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, 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, [25] that these

statute prohibitions extend as well to the 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 3d, 1819, went a step further, and authorized 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, 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 armed 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, with intent to make him a

slave, or should decoy, or forcibly bring, or receive such negro on

board such vessel, 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 purview of the law of nations, if it were not so without the

statute; and the legislature intended to legislate only where they bad 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 hare carried their statute denunciation of the trade as far as

the law of the United States.



The first British statute that declared the slave trade unlawful, was in

March, 1807. [26] This was a great triumph of British justice. It was

called for by the sense of the British 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. 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 their sense of its extreme criminality.

Almost every maritime nation in Europe has also 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 France, Lewis 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 christendom to decree the abolition of the trade, and that

it should ease definitively, on the part of the French government, in

the course of five years. The ministers of the principal European powers

who met at the 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,

Lewis 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. In December,

1817, the Spanish government prohibited the purchase of slaves on any

part of the coast of Africa, after the 31st May, 1820; and 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. [27]



The case of the Amedie [28] 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 Wm. 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, abstractedly 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 [29] was condemned

on the authority of the Amedie, and the same principle was again

affirmed. But, in the subsequent case of the Diana, [30] the doctrine

was not carried so far as to hold the trade itself to be piracy, or a

crime against the law of nations. A Swedish vessel was taken by a

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 marum, 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 is, abstractedly

speaking, 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 every where, 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 the Le Louis, [31] 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 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

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 France. 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 K. B. in 1820, in

Madrazo v. Willes. [32] The Court held, that the British statutes

against the slave trade, were only applicable 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 general 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 same

as in the case of the Le Louis. In the case of the La Jeune Eugenie,

[33] 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, [34] the Supreme Court of the United States declared that the

slave trade 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 have not prohibited it

by municipal acts or treaties.



___________



1. Vattel, b. 2. c. 15. sec. 221. Resolution of Congress of November

23rd, 1781.



2. Act of Congress, April 30th, 1790, sec. 27.



3. Ibid. sec. 25, 26.



4. Journals of Congress, vol. 7. 181.



5. The United States v. Smith. 5 Wheaton, 153 and note, ibid. 163



6. Cic. in Verrem, lib. 5. 3 Inst. 113.



7. Bynk. Q. J. Pub. b. 1. c. 17. Rutherforth, b. 2. c. 9. Azuni, vol. 2.

p. 351. 361, 362, edit. N. Y. Gro. E. 685. Anon. 2 Woodd. Lec. 429.



8. Doug. 613.



9. 5 Wheaton, 153.



10. Bynk. Q. J. Pub. ch. 17.



11. 3 Wheaton, 610.



12. Rutherforth's Ins. b. 2. ch. 9. Mr. Jefferson's Letter to M. Genet,

17th June, 1793.



13. 5 Wheaton, 144.



14. Ibid, 184.



15. Ibid. 412.



16. Cic. Philip. 4. c. 6. Grotius, b. 3. c. 3. sec. 1.



17. Q. J Pub. b. 1. c. 17.



18. Esprit des Loix b. 10. c. 5.



19. The Helena. 4 Rob. 3.



20. Sec. 45.



21.Quest. J. P. b. 1. c. 17.



22. Story. J. 11 Wheaton. 39 — 41.



23. Mitford's Hist. vol. 4. 236.



24. L'Esprit des Loix, liv. 15. ch. 5.



25. The Merino. 9 Wheaton, 391.



26. Stat. 47 Geo. III.



27. Report of a Committee of the House of Representatives of the United

States, February 16th, 1825.



28. 1 Acton's Rep. 240.



29. 1 Dodson, 81.



30. 1 Dodson, 95.



31. 2 Dodson, 210.



32. 3 Barnewall & Alderson 353.



33. 2 Mason. 409.



34. 10 Wheaton, 66.