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Commentaries on American Law (1826-30)
Chancellor James Kent
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 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 offenses 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 Stares 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 per sons who infringe the law of nations, by offering violence to the persons of ambassadors, and other public ministers, or by being concerned iii prosecuting or arresting them.3 This is an offense 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 offense 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 he 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 recognize any title to be derived from an act of piracy. The principle, that a piratis et latronibus capta dominium non mutant, is the received opinion of ancient civilians, and modern writers on general jurisprudence, and the same doctrine was maintained in the English courts of common law prior to the great modern improvements made in the science of the law of nations.7
By the Constitution of the United States, Congress were authorized to define and punish piracies and felonies committed on the high sects. and offenses 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 offenses, which, if committed within the body of a county, would, by the laws of the United States, be punishable with death, should be adjudged to be piracy and felony, and punishable with death. It was further declared, that if any captain or mariner should piratically and feloniously run away with any vessel, or any goods or merchandise to the value of fifty dollars; or should yield up any such vessel voluntarily to pirates; or if any seaman should forcibly endeavor to hinder his commander from defending the ship or goods committed to his trust, or should make a revolt in the ship; every such offender should be adjudged a pirate and felon, and be punishable with death. Accessories 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 shall 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 shall also be adjudged a pirate. The statute, in this respect, seems to be only declamatory 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 offense, 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 provisions of any municipal code for its definition and punishment. Robbery on the high seas is, therefore, piracy by the act of Congress, as well as by the law of nations.
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 offense against the United States. It is of no importance, for the purpose of giving jurisdiction, on whom or where a piratical offense 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 offense committed on board its own vessels to be piracy, and such an offense will be punishable exclusively by the nation which passes the statute. But piracy, under the law of nations, is an offense 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 1794 was intended to punish offenses against the United States, and not offenses 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 offense, 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 offense, committed on board of a vessel not belonging to the subject of any foreign power, was not piracy. The same court, afterwards, in the case of the United States v. Klintock,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.14 Persons of that description were pirates, and proper objects for the penal code of all nations. The act of Congress did not apply to offenses committed against the particular sovereignty of a foreign power; or to murder or robbery committed in a vessel belonging at the time, in fact as well as in right, to the subject of a foreign state, and, in virtue of such property, subject at the time to its control, But it applied to offenses 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, and in the case of the United States v. Holmes,15 in pursuance of the same principle, that the moment a vessel assumed a piratical character, and was taken from her officers, and proceeded on a piratical cruise, she lost all claim to national character, and the crew, whether citizens or foreigners, were equally punishable, tinder 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 offense 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 offense 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 offense which is piracy by the law of nations, and the act of Congress of 1819, but other offenses 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 for a century past have been, regarded as lawful powers, and not pirates. They have all the insignia of regular independent governments, and are competent to maintain the European relations of peace and war. Cicero, and, after him, Grotius, define a regular enemy to be a power which has 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 Bynkershoek,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 were not able to protect their commerce by force; and they also make slaves of their prisoners, and require a heavy ransom for their redemption. But this, Bynkershoek insists, is conformable to the strict laws of war; and the nations of Europe who carried on war with the Barbary states, such as Spain, Naples, Holland, etc. 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 favor of general humanity, deserves some portion of that exalted eulogy bestowed by Montesquieu18 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 color 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 Bynkershoek had insisted, near a century ago, that captures by the Barbary powers worked a change of property by the laws of war, in like manner as captures made by regular powers, yet, in a case in the English admiralty so late as 1801,19 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 Oberon 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. Bynkershoek 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 color of any commission from any foreign prince or state, or on pretense 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 he 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 offense 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 offense 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 municipal institutions of all the European colonies in America, and with the approbation and sanction of the parent states. It forms to this day the foundation of large masses of property in the southern parts of the 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, butt he animadverted upon the African slave trade by the moat 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 favor 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 for ward 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 country 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 had a right to legislate, over their own citizens and vessels. The question, notwithstanding these expressions in the statute, still remained to be discussed and settled, whether the African slave trade could be adjudged piracy, or any other crime within the contemplation of the code of international law. It has been attempted, by negotiation between this country and Great Britain, to agree that both nations should consider the slave trade piratical; but the convention for that purpose between the two nations has not, as yet, been ratified, though the British nation have 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 cease 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 of 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 super pressed; 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 front 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 oil any part of the coast of Africa, after the 31st of 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 Amedie28 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 Fortuna29 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 morum, for the whole world, or presume to interfere with the commercial regulations of other states. The principle of the case of the Amedie was, that where the municipal law of the country to which the parties belonged had prohibited the trade, English tribunals would hold it to be illegal; upon general principles of justice and humanity, but they would respect the property of persons engaged in it under the sanction of the laws of their own country.
The doctrine of these cases is, that the slave trade, abstractedly speaking, is immoral and unjust, and it is illegal, when declared so by treaty, or municipal law; but that it is not piratical or illegal by the common law of nations, because if it were so, every claim founded on the trade would at once be rejected 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, ever) 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 farce 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 Irish 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. Cro. E. 685. Anon. 2 Woodd. Lec. 429.
8. Doug. 618.
9. 6 Wheaton, 153.
10. Bynk. Q. J. Pub. ch. 17.
11. 3 Wheaton, 610.
12. Rutherforth’s Ins. b. 1. ch. 9. Mr. Jefferson’s letter to Mr. 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. The declarations of the master, connected with his acts in furtherance of the voyage, have been held to be evidence on an indictment against the owner of the ship, under the act of 20th April, 1818. United States v. Gooding, 12 Wheaton, 460.
26. Stat. 47. Geo. III.
27. Report of a Committee of the House of Representatives of the United States, February 16th, 1825. See also the Q. Review, No. 68, in which it appears from a reference to various documents, that the African slave trade was carried on to an enormous extent under the French and Portuguese flags, down to the year 1826. But by a convention between England and Brazil. it will be piratical for the subjects of Brazil to be engaged in the trade after the year 1830.
28. 1 Acton’s Rep. 240.
29. 1 Dodson, 81.
30. 1 Dodson, 95.
31. 2 Dodson, 210.
32. 3 Barnewell & Alderson, 358.
33. 2 Mason, 409.
34. 10 Wheaton, 66.