PRIOR HISTORY:    [*1] 

APPEAL from the Circuit Court of Georgia.

These cases were allegations filed by the Vice-Consuls of Spain and Portugal, claiming certain Africans as the property of subjects of their nation. The material facts were as follows: A privateer, called the Colombia, sailing under a Venezuelean commission, entered the port of Baltimore in the year 1819; clandestinely shipped a crew of thirty or forty men; proceeded to sea, and hoisted the Artegan flag, assuming the name of the Arranganta, and prosecuted a voyage along the coast of Africa; her officers and the greater part of her crew being citizens of the United States. Off the coast of Africa she captured an American vessel, from Bristol, in Rhode Island, from which she took twenty-five Africans; she captured several Portuguese vessels, from which she also took Africans; and she captured a Spanish vessel, called the Antelope, in which she also took a considerable number of Africans. The two vessels then sailed in company to the coast of Brazil, where the Arraganta was wrecked, and her master, Metcalf, and a great part of his crew, made prisoners; the rest of the crew, with the armament of the Arranganta, were transferred to the Antelope,  [*2]  which, thus armed, assumed the name of the General Ramirez, under the command of John Smith, a citizen of the United States; and on board this vessel were all the Africans, which had been captured by the privateer in the course of her voyage. This vessel, thus freighted, was found hovering near the coast of the United States, by the revenue cutter, Dallas, under the command of Captain Jackson, and finally brought into the port of Savannah for adjudication. The Africans, at the time of her capture, amounted to upwards of two hundred and eighty. On their arrival, the vessel, and the Africans, were libelled, and claimed by the Portuguese and Spanish Vice-Consuls reciprocally. They were also claimed by John Smith, as captured jure belli. They were claimed by the United States, as having been transported from foreign parts by American citizens, in contravention to the laws of the United States, and as entitled to their freedom by those laws, and by the law of nations. Captain Jackson, the master of the revenue cutter, filed an alternative claim for the bounty given by law, if the Africans should be adjudged to the United States; or to salvage, if the whole subject should be adjudged  [*3]  to the Portuguese and Spanish Consuls.

The Court dismissed the libel and claim of John Smith. They dismissed the claim of the United States, except as to that portion of the Africans which had been taken from the American vessel. The residue was divided between the Spanish and Portuguese claimants.

No evidence was offered to show which of the Africans were taken from the American vessel, and which from the Spanish and Portuguese; and the Court below decreed, that, as about one third of them died, the loss should be averaged among these three different classes; and that sixteen should be designated, by lot, from the whole number, and delivered over to the Marshal, according to the law of the United States, as being the fair proportion of the twenty-five, proved to have been taken from an American vessel.

COUNSEL:   The Attorney General, for the appellants, stated, that the cases of the respective allegations of the Spanish and Portuguese Consuls, upon which distinct appeals had been taken, which had been separately docketed in this Court, n1 were so blended together, that it was thought most proper to bring on the hearing in both cases at the same time.


n1 The Spanish case as No. 12, and the Portuguese as No. 13.

Mr. Chief MARSHALL stated, that the appellants, in the argument of No. 12, might refer to the evidence in No. 13; they might invoke it into this cause, so far as it was necessary for their purpose, and the Court would take notice of the facts which appeared in the other transcript; but that the two causes must come on separately, and in their order. But it has been thought most expedient to report the two arguments together.

The reasons  [*6]  assigned in the appellants' case, for reversing the decrees of the Court below, were as follows:

1st. That the possession of these Africans by the claimants, before the capture by the privateer, affords no presumption that they were their property; that they must show a law entitling them to hold them as property.

2. That if these Africans are to be considered as having been in a state of slavery, when in the Spanish and Portuguese vessels from which they were taken, and if the Court shall consider itself bound to restore them to the condition from which they were taken, this can be done only by placing them in the hands of those who shall prove themselves to have been the owners; and that this purpose cannot be answered by restoring them to the Consuls of Spain and Portugal.

3. That if some of these Africans were the property of the claimants, yet some were not; and failing to prove which were theirs, the decree is erroneous, in determining by lot, a matter which the claimants were bound to establish by proof.

Mr. Key, for the appellants, argued, that the facts of the case presented the question to be considered in a point of view, peculiarly favourable to the appellants. A  [*7]  piratical vessel was found hovering near our coast, apparently meditating a violation of our laws. It was brought, with the persons on board, into the custody of the Court, by an act of seizure, not only lawful, but meritorious towards the claimants, since it rescued what they claim as their property, from the grasp of pirates. If the claimants had not interposed, the course of the Court would have been obvious. The illegal and piratical capture by our citizens, gave them no rights; and even if it did, they instantly forfeited them under our laws, which they intended to violate. But the claimants demand restitution of the Africans found on board this vessel, alleging them to be their property, lawfully acquired on the coast of Africa, and piratically taken from them by the Arraganta. This demand is resisted by the government of the United States, upon the ground that the persons in question are not by our laws to be considered as slaves, but as freemen. These laws the Court must administer, and not the laws of Spain. Our national policy, perhaps our safety, requires, that there should be no increase of this species of population within our territory. The acts of Congress provide  [*8]  that, however brought here, they shall be set free, and sent back to their own native country. The Spanish and Portuguese claimants demand them as their property. We repel the claim, by asserting their right to liberty. The demand of restitution is inconsistent with our policy, as declared in our statutes and other public acts. n2 These declarations gave fair warning to those engaged in the slave trade, that though we did not intend to interfere with them on the high seas, yet, if their victims should come within the reach of our laws, we should protect them. These acts constitute a solemn pledge to all nations interested in the suppression of this inhuman traffic, and to Africa herself, that if the objects of it should seek our protection, where they may lawfully receive it, within our territorial jurisdiction, and at the feet of our tribunals of justice, they should be entitled to that protection. Therefore, admitting the facts as alleged by the claimants, what they claim as justice in a matter of property, cannot be done to them, without disregarding our own policy, endangering our own safety, infringing our own laws, and violating the plighted faith of the country.


n2 Vide Appendix, Note I. (A.)  [*9] 

But supposing they have a right to insist on restitution of their property, what proof ought to be required, and what proof do they give, of their proprietary interest? It is material, also, here to consider, that those human beings, who are claimed as property, come into the jurisdiction of the Court, not by any wrongful act of ours, but lawfully, providentially; and are to be treated just as if they were thrown upon our shore by a storm. The Spanish owners show, as proof of property, their previous possession; and the possessor of goods, it is said, is to be presumed the lawful owner. This is true as to goods, because they have universally and necessarily an owner. But these are men, of whom it cannot be affirmed, that they have universally and necessarily an owner. In some particular and excepted cases, depending upon the local law and usage, they may be the subjects of property and ownership; but by the law of nature all men are free. The presumption that even black men and Africans are slaves, is not a universal presumption. It would be manifestly unjust, to throw the onus probandi upon them to prove their birthright. Whatever may have once been the condition of Africa,  [*10]  and of the African slave trade, the authentic information on this subject will show, that it is now impossible to determine, by the fact of possession, whether the party has been lawfully acquired or not. There must be an overwhelming probability of the lawfulness of such acquisition, to raise such a presumption. This is instanced by the different presumptions allowed in different parts of our own country, in respect to this description of persons. In the southern States, there is the highest degree of probability, from universal practice and well known law, that such persons are slaves. But in the northern States, the probability is just the contrary, and the presumption is reversed. And in the present state of the slave trade, Africans, in a slave ship on the high seas, are in no such circumstances as to raise a presumption that they are lawfully held in slavery. For if there be a permitted slave trade, there is also a prohibited slave trade; and the prohibition is much more extensive than the permission. The clamants must, consequently, show something more than mere possession. They must show a law, making such persons property, and that they acquired them under such law.In  [*11]  order to maintain their title, they show the municipal law of Spain; but the operation of that law can only extend throughout the territory of Spain, and to Spanish vessels on the high seas. These persons are now within the jurisdiction of our conflicting law; and they are brought here without any violation of the sovereign rights of Spain. Our own law, which is in force here, must prevail over the law of Spain, which cannot have an extra-territorial operation. There is no reason of comity, or policy, or justice, which requires us to give effect to a foreign law conflicting with our own law on the same subject. Besides, the Spanish law is not only contrary to ours, but is inconsistent with the law of nature, which is a sufficient reason for maintaining the supremacy of our own code. If this municipal law of Spain were allowed to prevail against our law, in our own territory, and before our own Courts, the same effect must be given to the law of every other country, under the same circumstances. If, instead of these Africans, there had been taken by the same illegal capture, Spanish slaves, from an Algerine corsair, and afterwards brought in the same manner into our ports, they  [*12]  might, upon the same principle, be reclaimed by the representative of Algiers who could easily show, that, by the law prevailing among the Barbary states, they were slaves.

The municipal law of Spain, then, is insufficient to maintain the title set up by the claimants. They are driven to the necessity of invoking the aid of the law of nations, as sanctioning their asserted right to property in these human beings. But if the law of nations is silent upon this subject; if it neither sanctions nor forbids the traffic in African slaves; if it is municipal law alone which determines in what manner private property is acquired and lost, then the claimants have no law to stand upon in asserting their claim. Supposing, however, this idea not to be correct, it is incumbent on the claimants to show, positively, that the slave trade, as now practised, has the sanction of the law of nations, as now understood by the civilized and Christian nations of the world. That it once had that sanction, may, perhaps, be admitted; but, it must also be admitted, that there was once a time when it had not that sanction. The permission began by general assent and usage. The King of Spain, in the preamble  [*13]  to his edict of 1817, admits that it was incorporated into the code of nations as an exception to the general principles on which that code is founded. n3 When the practice was adopted by the general, not universal assent, of civilized nations, it became a part of the law of nations. In the same manner, a general, and not a universal, denunciation of the practice, is sufficient to make it cease to be a part of the law of nations. In the great moral and legal revolution which is now going on in the world respecting this trade, the time must come when it will cease to have a legal existence by the universal concurrence of nations. In the mean time, the question must be discussed, as it arises under various circumstances, until we reach the desired period, when the universal sentiment of the wise and the good shall become the rule of conduct sanctioned by authority capable of enforcing it. All the modifications and improvements in the modern law of nations have been gradually introduced. The writers upon that law explain the manner in which these changes have been made and sanctioned. n4 The documents to be laid before the Court will show the present state of the world's opinion  [*14]  and practice upon this subject, and will prove that the time is at hand, if it has not already arrived, when the slave trade is not only forbidden by the concurrent voice of most nations, but is denounced and punished as a crime of the deepest die. This is shown by the declarations contained in the treaties of Paris and Ghent; by the acts and conferences at the Congresses of Vienna, London, and Aix la Chapelle; by the treaties between Great Britain, and Spain, and Portugal; by the negotiations between the United States and Great Britain; and by the reports of the committees of the House of Commons, and the House of Representatives in Congress. We contend, then, that whatever was once the fact, this trade is now condemned by the general consent of nations, who have publicly and solemnly declared it to be unjust, inhuman, and illegal. We insist, that absolute unanimity on this subject is unnecessary; that, as it was introduced, so it may be abolished, by general concurrence. This general concurrence may not authorize a Court of justice to pronounce it a crime against all nations, so as to make it the duty of all to seek out and punish offenders, as in the case of piracy.No decision  [*15]  has yet gone that length, nor is it necessary in this case to contend for such a principle. But in a case where the Africans are lawfully brought before a Court of the law of nations, and are claimed as property, by those who must be considered as actors in the cause, and who must, consequently, prove their title as alleged; the fair abstract question arises, and their claim may well be repudiated as founded in injustice and illegality.

The learned counsel here commented upon the different cases in England and this country, with the view of reconciling them, and showing that they were all consistent with the principle he maintained. In the cases of the Amedie, n5 the Fortuna, n6 and the Donna Marianna, n7 the ship and persons on board were lawfully brought into the custody of the Court, either as being captured jure belli, or taken under circumstances which warranted a seizure as for a municipal offence. The claims were accordingly rejected, upon the ground of the unlawfulness of the trade. In the subsequent cases of the Louis, n8 and of Madrazo v. Willes, n9 the original seizure was held to be unjustifiable, and consequently restitution was decreed. But none of the important  [*16]  principles settled in the other cases, are overruled in these cases, which turn exclusively upon the point, that the wrong first done in the unlawful seizure must be redressed. In the case of La Jeune Eugenie, n10 the claim of a French subject was rejected, as being founded in a breach of the municipal law of his own country, and the subject matter in controversy was delivered up, with the consent of the executive government of this country, to the sovereign of France, to be dealt with as he should think fit. All these latter cases show, that where the Court has rightfully obtained possession of human beings, who are claimed as slaves, it will not restore them to their alleged proprietors, although it may not go so far as to punish those who are engaged in the trade, by the confiscation of the vehicle in which it is carried on.


n3 Vide. Appendix. Note I. (B.) p. 32.

n4 Vattel, Droit des Gens, Chap. Prelim. § 25 — 27. 56. liv. 1. ch. 23. § 293. Burlam. 165. Martens, 1. 9. § 5. 1. 11. § 1.

n5 Acton's Rep. 240.

n6 1 Dodson's Rep. 81.

n1 Id. 91.

n8 2 Dodson's Rep.

n9 3 Parnwell and Ald. 353.The several cases cited, will be found in the Appendix to the present volume of these Reports, (G.) p. 40 — 48.

n10 2 Mason's Rep.  [*17] 

But another view may be taken of this subject. The King of Spain, in his edict of 1817, (before referred to,) informs us, that the slave trade originated in motives of humanity, and was intended to avoid the greater evils growing out of the barbarous state of the African continent. Suppose this to be a just representation, and that the trade formerly consisted merely in the transportation of persons who were slaves in Africa, to be slaves elsewhere; it is at last discovered, by the evidence taken before the British House of Commons in 1790, by the investigations of the African Institution, ad by the reports of the British and American naval officers, to have entirely changed its character. Slaves are no longer acquired merely by capture in war, or by trade; but free persons are seized and carried off by the traders and their agents. Ware are instigated by them, for the mere purpose of making slaves. The persons thus enslaved are clandestinely brought away, under circumstances of extreme cruelty, aggravated by the necessity of concealment, and smuggled into every country where the cupidity of avarice creates a demand for these unhappy victims. May it not be asked, is this trade?  [*18]  Is it lawful? Has it not so changed its nature as to have become prohibited?

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

But suppose  [*19]  they can avail themselves of the permission to trade in slaves within the limits prescribed by the treaties. The onus probandi is thrown upon them to bring themselves within those limits. This they have failed to do by satisfactory evidence.

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

Lastly: if some of these Africans were the property of the claimants, some were not; and, failing to identify their own, they are not entitled to restitution of any as slaves, since among them may be included some who are entitled  [*20]  to their freedom. The proof, by lot, which was substituted by the Court below for ordinary legal proof, is not satisfactory, especially where a claim to freedom conflicts with a claim to property.

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

The allowance of these claims is resisted on various grounds.

One prominent proposition pervades the whole of the opposite argument. Unless we can meet and resist it, we must submit to be its victims.It asserts, that the United States have acquired the possession of these negroes lawfully, without wrong; that with the possession so acquired, they have incurred the obligation to protect them; that all presumptions are in favorem libertatis; and, whatever the laws of other countries may tolerate or ordain, having ourselves declared the slave trade to be contrary to the principles  [*21]  of humanity and justice, we are bound, prima facie, to hold that there can be no property in a human

This proposition suggests the following inquiries:

1. Was the possession lawfully acquired?

2. If so, does the right which is asserted necessarily follow?

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

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

The seizure was made by John Jackson, commander of the revenue cutter Dallas, belonging to the District of Georgia; and was made off the coast of Florida, while that was yet a province of Spain. The right of Captain Jackson must have resulted from the authority given by his commission, and the laws of the United States. n11


n11 The Louisi, 2 Dodson's Rep. 238.

It did not result from the act of 1799, providing for the establishment of revenue cutters; for this only authorizes them to board vessels on the coasts of their respective Districts, or within four leagues thereof; nor from the acts forbidding the slave trade, for these are directed only against  [*22]  vessels of the United States, or foreign vessels intending to violate our laws by introducing negroes into the United States. The President is, indeed, authorized to employ the armed vessels of the United States, to cruise on the coasts of the United States, or territories thereof, or of Africa, or elsewhere, and to instruct them to bring in all vessels found contravening those acts. But the laws of the United States can operate only on American vessels, on American citizens on board of foreign vessels, or on such vessels within the limits and jurisdiction of the United States. Besides, it is not pretended, that the revenue cutter Dallas had been selected as a cruising vessel under these acts, or that Captain Jackson had received any instructions from the President of the United States. Neither can the seizor derive any aid from the acts to preserve the neutral relations of the United States; for although the Courts of the United States will restore property taken in violation of these acts, when it is found within their jurisdiction, yet they do not authorize the cruisers of the United States to rove the ocean in search of objects on which that jurisdiction may be exercised.  [*23] 

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

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

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

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

(2.) The Courts of the United States have declined to decide, that such an act would amount to piracy.

(3.) To put himself in a situation to make this seizure, Captain Jackson abandoned the duty enjoined upon him by his commission, and the laws of the United States, by leaving the limits intrusted to  [*24]  his vigilance. If he had lost his vessel, could he have justified himself before a Court Martial?

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

Neither have the United States acquired any rights to enforce against these foreigners their own speculative notions on this subject, in consequence of their being actors. All parties are actors in a Court of admiralty, and these parties only became so after their property had been taken into the custody of the Marshal, and at the suit of the United States. But they were entitled, under the treaty, to have restitution of their property, without being put to other proof, than that it was found in their possession.

2. If the possession had been lawfully acquired, could the Court refuse restitution on the ground suggested?

The great case on this subject, is that of the Louis; n12 our adversaries agree to refer the question to its decision.


n12 2 Dodson's Rep. 243. 249. 264.

It is a singular mistake, to suppose that Sir W. Scott directed restitution solely on the ground of  [*25]  the unlawfulness of the seizure; and thence to infer, that if the seizure had been lawful, he would have condemned. On the contrary, admitting the lawfulness of the seizure, he decides expressly that restitution must notwithstanding be awarded.

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

The notion of the pledge is equally visionary. I find it difficult to form a conception of a pledge, which the  [*26]  party making it can at any time capriciously recall; and yet no one doubts that an act of the American Congress can, at at any moment, throw open the slave trade.

These considerations apart, would it become the United States to assume to themselves the character of censors of the morals of the world on this subject? — to realize the lofty conception of the adverse counsel, and consider themselves as the ministers of heaven, called to wipe out from among the nations the stain of this iniquity?Might not the foreign claimant thus rebuke them, in the strong language of truth? For more than thirty years you were slave traders; you are still extensively slave owners. If the slave trade be robbery, you were robbers, and are yet clinging to your plunder. For more than twenty years this traffic was protected by your constitution, exempted from the whole force of your legislative power; its fruits yet lay at the foundation of that compact. The principle by which you continue to enjoy them, is protected by that constitution, forms a basis for your representatives, is infused into your laws, and mingles itself with all the sources of authority. Relieve yourselves from these absurdities,  [*27]  before you assume the right of sitting in judgment on the morality of other nations. But this you cannot do. Paradoxical as it may appear, they constitute the very bond of your union. The shield of your constitution protects them from your touch.

We have no pretence, then, to enforce against others our own peculiar notions of morality. The standard of morality, by which Courts of justice must be guided, is that which the law prescribes.

The learned counsel here proceeded to examine the evidence of proprietary interest, and insisted that (besides the other testimony) the official interposition of the Portuguese government supplied the place of proof of individual interest, and established the legality of the traffic. n14


n13 The Louis, 2 Dodson's Rep. 249.

n14 The Bello Corrunes, 6 Wheat. Rep. 152.

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

1. It appearing that the negroes found on board the Antelope consisted of three distinct parcels, taken from American, Spanish, and Portuguese vessels, the obligation to protect the former, was equal  [*28]  to, and not greater than, that which required the restoration of the latter. The capture by Smith being considered, as in the argument of our adversaries it is considered, as piratical, the right of the Spanish claimant to restoration under the treaty, was the primary right, as founded on the treaty, which is the supreme law; and in the fair construction of that treaty, it extended to every thing found on board the Spanish vessel. Then the proof which should diminish that right, was to be furnished by those who sought to diminish it.

2. It being ascertained that these negroes were property, they were liable to distribution as other property; and, notwithstanding the assertion to the contrary, the lot is often and legally resorted to, to separate undivided interests.

3. As between the Spanish and Portuguese claimants, no question on this point can arise here, because they have not appealed.

4. The United States cannot question this part of the decree, because they have not only not appealed from it, but have actually proceeded to enforce it ex parte, and have received restitution by lot of the negroes taken from the American vessel.

The United States have, then, derived no  [*29]  right to refuse restitution, from the manner in which they have acquired possession.

They are not entitled, by law, or the stipulations of treaty, to apply their speculative notions of morality to the subjects of Spain and Portugal.

They have ill-grounded pretensions in reference to this ill-fated subject, to set themselves up as the moral censors of the civilized world. Here is evidence of a proprietary interest to satisfy the mind beyond a reasonable doubt, and it is wholly unconstradicted; and the passport of the King of Spain, and the interposition of the government or Portugal, show, if there by any necessity for it, the legality of the traffic, as to their respective subjects.

On what ground, then, is restitution refused?

It is said, the slave trade is unlawful, contrary to the principles of justice and humanity; and that no right can be derived from so nefarious a traffic.

Our inquiry is, by what law, which this Court is competent to enforce, is it inhibited?

1. Is it contrary to the law of nations?

2. Is it contrary to the laws of the sovereigns of the claimants; and can this Court refuse restitution for that cause?

3. Is it contrary to the laws of the United States;  [*30]  and can those laws be enforced against these claimants?

1. What is the slave trade, considered as a subject on which the law of nations can operate. Slavery exists, and has from all time existed, in Africa, and in many other countries.Where it exists, there will, of course, be an interior traffic in slaves, which the law of nations cannot touch. It is only on the transportation of negroes between two countries mutually tolerating slavery, that this operation is contended for. But this transportation is but an incident to the original sin of slavery. If humanity nerves the arm of the law, why is its force spent on the incident? Why is it powerless in relation to the principal wrong?

If the traffic in slaves be considered as increasing the number of victims, by affording a market for them, what is it then but an aggression by the subjects of one nation on the rights of another? If the nation forbids it, the offender is punished by the municipal law; if the nation permits it, she herself becomes the aggressor. In either case, how does it concern other nations?

The law of nations may be defined to be a collection of rules deduced from natural reason, as that is interpreted by  [*31]  those who adopt them, and resting in usage, or established by compact, for regulating the intercourse of nations with each other.

Rights and obligations are interior between sovereign and people, and are regulated by the municipal law; or exterior, between nations considered as moral persons; and these are regulated by the law of nations.

Now the slave trade is not contrary to the natural law of nations, because, until recently, it was universally tolerated and encouraged. It is not contrary to the positive law of nations; because there is no general compact inhibiting it; and nothing is more certain, than that the usage, or compact, even of a majority of nations, cannot produce rights or obligations among others.To what other evidences of the law of nations can we resort, except those of usage and compact; the former interpreting the rules of natural reason, the latter stipulating those of positive institution?

From this general view it would seem, that the slave trade is untouched by the law of nations.Let us render our inquiries more particular. Is this traffic considered to be contrary to the law of nations, by the statesmen and jurists of Europe and America?

We are all aware  [*32]  of the conferences of the European powers on this subject, at Vienna, at Aix la Chapelle, and at London. But all the efforts of Great Britain to have it so denounced, were ineffectual.The marginal references point to the answers of the several powers respectively, and to the note and the answer of Lord Castlereagh; and all of them distinctly show, that the inhibiting of this traffic finds no place in the code of international law. n15


n15 4th Report African Institution. Russia, 20, 21. France, 23, 24. Austria, 26. Prussia, ib. Lord Castlereagh, 19, 20. 31, 32.

The reports of various committees of Congress in the United States, also clearly prove, that, in the view of American statesmen, this traffic is not inhibited by the law of nations, since the object of them all is to devise means by which it may be so inhibited. n16


n16 Vide Appendix Note I. (A.) p. 1 — 32.

After all, these conferences are only valuable as evidence of opinion, since they could not effect any change in the law of nations. On this subject the opinion of Sir W. Scott is distinctly expressed, in the case of the Louis. n17


n17 2 Dodson's Rep. 252, 253.

Among jurists, we find the judges of  [*33]  the K. B. in England, denying that the slave trade is contrary to the law of nations. n18


n18 Madrazo v. Willis, 3 Barnwell and Ald. 353.

n19 2 Dodson's Rep. 210.

And the same doctrine is announced by Sir W. Scott, after the most elaborate investigation, in the case of the Louis.

The only opposing cases are those of the Amedie n20 and La Jeune Eugenie. n21


n20 1 Acton's Rep. 240.

n21 2 Mason's Rep. 409.

And, first, of the Amedie. It is most obvious, that this case has not been considered by the statesmen of Europe as establishing the doctrine contended for. The conferences to which we have just referred, look to a general compact among nations, as the only mode by which this traffic can be inhibited, and propose, by general suffrage, to declare it piracy, admitting, at the same time, that their views may be defeated by the refusal of any one state. But if the British ministry had so considered this case, they would most surely have availed themselves of it in these conferences. That it was not so viewed by Sir W. Scott is most certain; or, bound as his judicial conscience was by the decision of the Court of Appeals, he could not have pronounced the opinion given in  [*34]  the case of the Louis. The argument in the case of the Amedie, is founded entirely on the effect of the British act of parliament. Before the passing of that act, the learned Judge declares, that no Court in England could have pronounced the slave trade to be illegal; since, it is prima facie illegal every where, and on principles of universal law a claimant is not entitled to be heard in any Court. We inquire,

1. If, before the enactment of the British act of parliament, the slave trade was not forbidden, how that act could have changed the universal law? It is said, that act, proprio vigore, rendered it, prima facie, illegal every where, incapable abstractly of having a legal existence. Are these not mere caballistic terms, too occult for the apprehension of a legal mind?

Consider the operationa ascribed to this act of parliament. Jurisdiction, derived from place, is confined to the territory of the sovereign, from the person, to his own subjects; but here is an act of the British parliament, which, according to Sir Wm. Grant, operates locally throughout al space, and personally over every individual in the various communities of nations. Sir W. Scott holds a doctrine directly  [*35]  opposite to this, in the case so often cited. n22 It did not arise from the locality of the tribunal, for it was solemnly held, in the case of the Maria, n23 (the Swedish convoy,) that this could not influence its decisions.


n22 2 Dodson's Rep. 239.

n23 1 Rob. Rep. 350.

2. By what rule, other than that of sic volo sic iubeo, did the Master of the Rolls throw the burthen then of proof on the claimants? It is said, because the slave trade is illegal, contrary to justice and humanity, that human beings are not the subjects of property. The obvious answer is, this is a petitio principii. It assumes the very question in controversy. The case admits, and so the fact was, that up to the time when this act was passed, with the exception of America, this traffic was every where lawful; that property was acquired by it. If at that time it had become otherwise, the change must have been effected by some positive act. The assertion that such an act existed, was an affirmative proposition. He who made it was bound to prove it. Such is the opinion of Sir W. Scott, and of Sir. J. M'Intosh, Nay, in the case of La Jeune Eugenie, it is admitted, that a prohibitory act of the country of  [*36]  which the claimant is a subject, must concur with the general law of nations, to authorize the forfeiture. Now, if the onus be on the claimant, it is certainly not necessary for the libellant to show a prohibitory act; all that in such case is essential is, that the claimant should fail to prove a permissive one. The opinion of Sir W. Scott, in relation to this case, will be found in The Fortuna, The Diana, and The Louis. n25


n24 2 Dodson's Rep. 242. 27 Eng. Parl. Deb. 253, 254.

n25 1 Dodson's Rep. 85. 95. 2 Dodson's Rep. 210. 260.

3. How can even the rigid rule laid down by that Court be availed of? The Court expressly decline to decide what will be the effect of the proof, if made, declaring that a claimant, under such circumstances, is not entitled to be heard in any Court. n26 Of what avail, then, is the proof?


n26 La Jeune Eug. 2 Mason's Rep. 409.

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

5. The argument seems to me to be self-destructive. It admits, that this novel principle cannot  [*37]  be enforced against the subjects of those nations whose municipal regulations permit it. One of two things seems to follow. Either the slave trade is not contrary to the law of nations, or the municipal law may permit what the law of nations forbids. Can any single nation control the universal law? strike piracy from the law of nations? or deprive a belligerent of the rights of contraband, or of blockade? The learned Judge, in the case of La Jeune Eugenie, thus solves this difficulty.If a nation permits this traffic, the wrong is confined to the nation injured; and other nations are neither bound nor permitted to interfere. But the question recurs, what is the consequence, if a nation inhibit it? The offence must be against the power inhibiting, not, surely, against other nations, who, ex concessis, had no power either to inhibit, or to permit. On this point, also, we are fortified by the opinion of Sir W. Scott. n27


n27 2 Dodson's Rep. 251.

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

It is obvious to remark, that the  [*38]  case of La Jeune Eugenie is referred to by our adversaries under circumstances of some singularity. The principles advanced by the learned Judge, in delivering his opinion in that case, are maintained by our opponents, while they revolt from the conclusion to which those principles conducted him. What we ask in this case, is precisely what was done in the case of La Jeune Eugenie, that the property should be restored to the consular agents of Spain and Portugal; and yet that very case is relied upon as an authority against this concession.

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

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

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

To us, the inquiry seems to be vain and nugatory. The gravamen of the question is equally applicable to any other act of atrocity, and to any other code of laws. Murder, robbery, &c. &c. are attended with accumulated wrong. They, too, are inconsistent  [*39]  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 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?

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  [*40]  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 affecting 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 confessed by 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. Is an offence 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 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 argument, the decision in the Louis, and even that of La Jeune Eugenie, are referred  [*41]  to, to prove that, as to this point, the burthen of proof is on the appellants. They must show a prohibitory act.

2. If the burthen of proof be with us, we have furnished the evidence. The royal passport, and the order of the Portuguese government, are decisive on this point.The sanction of the colonial Governor was considered sufficient in the case of the Diana. n28


n28 1 Dodson's Rep. 95.

3. The laws of Spai and Portugal are merely municipal, and, from the very nature of their provisions, incapable of enforcement by the Courts of the United States. n29


n29 4th Report Afr. Inst. Abstract, &c. 26.

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. n30 A monarch, or a nation, stripped of these necessary attributes of sovereignty, would cease to be sovereign. The attempt by the United States to enforce these laws would be a usurpation.


n30 2 Dodson's Rep. 256.

(3.) Can this Court apply the laws of the United States to this claim of foreign subjects?  [*42] 

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 offences 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 offence against the law of nations. The jurisdiction of the Circuit Court of the United States is exclusive for the punishment of this offence. Besides, no particular nation can increase or diminish the list of offences punishable by the law of nations. n31


n31 Rutherf. 488. 491.

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 parliament on this subject. n32 Such, in the opinion of Congress, is the necessary limitation of ours. n33


n32 2 Dodson's Rep. 239.

n33 Vide Appendix, Note I. (A.) Report of Committee of the House of Representatives, 1824, 1825.

Mr. C. J. Ingersoll, on the same side, insisted, that there was no evidence in the cause which  [*43]  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. n34 Here the capturing vessel was illegally equipped in our ports, and the libellants 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 the Union where slavery exists. None of the judicial decisions cited have gone the length of asserting, that the nations who have prohibited the slave trade can  [*44]  compel others to join in that prohibition. The case of the Amedie itself, as explained by Sir W. Scott in the Diana, n35 does not extend the principle by which the general 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.


n34 The Josefa Segunda, 5 Wheat. Rep. 338.

n35 1 Dodson's Rep. 98, 99.

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. n36 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. n37 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."


n36 United States v. Smith, 5 Wheat. Rep. 160.

n37 Le Louis, 2 Acton's Rep. 249.

As to the judicial  [*45]  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 denounced 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?

Many principles have been at various periods asserted by confederacies of nations, which have ultimately failed  [*46]  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 engaged in war. It is, at least, doubtful which is the true law of nations. The supposed inconsistency of the slave trade with the law of nature, will not alone condemn it in the view of a Court of justice, so as to authorize all nations to treat it as a crime, on 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 was once universally participated in by the civilized nations of Europe and America. This fact is avowed by all the speakers on both sides of the abolition question, in the British parliament. It is matter of notorious history, that both the ancient and modern Europe, and condition of slavery, and the commerce in slaves, were sanctioned by the universal practice, and law of nations. The very definition of slavery in the civil law, which has been copied by writers  [*47]  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. n39 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 offence of vagrancy was punished with slavery by the statute, 1Edw. VI. c. 3. n40 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. n41 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 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  [*48]  terms of the Navigation Act. n43 The famous case of Somerset, n44 whilst it determined that negroes could not be held as slaves in England, recognised the existence of slavery in the colonies, as does the whole legal policy, both of that country and of France. n45 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 any thing like the unanimous consent of nations, so as to make it absolutely unlawful in the view of a Court of the law of nations.


n38 Hallam, Middle Ages, vol. 4. p. 221. Gibbon's Decline and Fall, vol. 1. p. 63.

n39 Domat, Loix Civ. Prel. tit. 2. § 2. Wood's Inst. Imp. and Civ. Law, Introd. 93. Grotius, de J. B. ac. P. C. 2. c. 5. § 27. Puffend. b. 3. 2. § 8. 1 Rutherf. b. 1. c. 20. p. 474. Bynk. Quaest. Jur. Pub. l. 1. c. 3. p. 20. Du Ponceau's Transl.

n40 4 Reeve's Hist. Law, 451.

n41 2 Keebl. 785. 2 Lev. 201.

n42 2 Salk. 666. 1 Lord Raym. 146. 5 Mod. Rep. 185. Carth. 596.

n43 2 Chalmers' Opinion of Eminent Lawyers, 263.

n44 Cobbett's State Trials, vol. 20. p. 1.

n45 Valin. Ord. de la Mar. liv. 2. tit. 1. du Capitaine, art. 16.  [*49] 

The United States have done all in their power, consistently with their constitution, to abolish the trade. But they have sought to abolish it by municipal means only. They have prohibited it to their own citizens, not only by the ordinary penal sanctions of revenue and trade laws; but they have made it a criminal offence, 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 Court is called on to anticipate, by judicial legislation, the exercise of the treaty making power, and to refuse restitution to the subjects of Spainand 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  [*50]  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.

The Attorney General, for the appellants, in reply, answered the objection, that the only question presented by the pleadings, on the part of the United States, was, whether this was a trade in breach of the Slave Trade Acts? He insisted, that as the libels filed by the Spanish and Portuguese Consuls, demanded restitution upon the ground of the illegal armament in our ports, and the claim, or defensive allegation, given in by the United States, resisted that demand upon two specific grounds: 1st. That the Africans were taken on board with intent to import the same, &c.; and, 2dly. That the vessel was found hovering on the coast with the same persons on board; if the testimony disclosed a case on which it would be proper for the United States to interpose, which was not reached by the pleadings, the consequence would be, not that the decrees should be affirmed, but that the cause would be remanded, with directions to amend. And, supposing the United States to have made no case by their  [*51]  pleadings, the question was, have the libellants 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 colour, 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 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  [*52]  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 defined by our laws; which must be the rule to guide the determination of the Court. They 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 question 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 his right to restitution. But, in the present case, the rule is peculiarly  [*53]  applicable, and the clearness and fulness of the proof ought to be in proportion to the importance of the matter in controversy. The case is one of human liberty. The Africans stand before the Court as if brought up before it upon a habeas corpus. Suppose them here, on such a process, asserting their freedom, and claiming your protection; what kind of proof would you exact from those who claim to hold them in slavery? Most certainly you, would not demand inferior evidence to that which you require in a case of life or death. The witnesses must present themselves fairly before you. Their statements must be clear and consistent, and such as to command the confidence of the Court. They must be sustained by the documentary evidence; and, where any doubt is left, the decision should be in favorem libertatis.

The claimants with the Court to consdier 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 stipulations of the treaty of 1795. But is the Court at liberty so to consider them, under the laws of our  [*54]  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. Possession 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 colour, prima facie, slaves, and throw the burthen 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, therfore, 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 have a right to seize a Spanish slave ship upon the high  [*55]  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 colours, 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, declare them to be entitled to their freedom. 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 protection?

It is unnecessary for the United States  [*56]  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, that possession on the coast of Africa is so habitually found in connexion with right, under the municipal laws of the country to which  [*57]  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 hence, that, by the law of nations, he has a 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  [*58]  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 assemblies. Free America did not introduce it. She led the way in measures for prohibiting the slave trade. The revolution which made us as independent nation, found slavery existing among us. It is a calamity entailed upon us, by the commercial policy of the parent country. n46 There is no nation which has a right to reproach us with the supposed inconsistency of our endeavouring 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.


n46 Hargrave's Argument, in Somersett's case, 11 State Trials, 346.

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  [*59]  exercise of the rights of war, as understood and practised 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 practised 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 offences.But this is a principle which has been repudiated by all nations. n47 The stipulation in the Spanish treaty, by which we are bound  [*60]  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 the Crown, in 1689, which have been cited to 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. Every thing must depend upon the law prevailing 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.


n47 Somersett's Case, 11 State Trials, 339. 346.

APPENDIX.

NOTE I.

(A.)

Report of the Committee to whom was referred so much of the President's Message, of the 7th of December last, as relates  [*61]  to the Suppression of the Slave Trade.

February 16, 1825. — Read, and committed to the committee of the whole House on the state of the Union.

THE Committee on the Suppression of the Slave Trade, to whom was referred so much of the President's message, of the 7th December last, as relates to that subject, have, according to order, had the same under consideration, and respectfully report: —

That, pursuant to the almost unanimous request of the House of Representatives, expressed by their resolution of the 28th February, 1823, the President of the United States concluded a convention with Great Britain, on the 13th of March, in the following year, by which the African slave trade was denounced to be piracy under the laws of both countries; the United States having so declared it, by their antecedent act of the 15th of May, 1820, and it being understood between the contracting parties, as a preliminary to the ratification of the convention by the United States, that Great Britain should, by an act of her parliament, concur in a similar declaration.

With great promptitude, and in accordance with this agreement, such an act was passed, declaring the African slave trade to be piracy,  [*62]  and annexing to it the penalty denounced against this crime by the comon law of nations. A copy of this act was transmitted, by the British government, to the executive of the United States, and the convention submitted, by the President, to the Senate, for their advice and consent.

The convention was approved by the Senate, with certain qualifications, to all of which, except one, Great Britain, sub modo, acceded: her government having instructed its minister in Washington to tender to the acceptance of the United States, a treaty, agreeing, in every particular except one, with the terms approved by the Senate. This exception, the message of the President to the House of Representatives presumes "not to be of sufficient magnitude to defeat an object so near to the heart of both nations," as the abolition of the African slave trade, "and so desirable to the friends of humanity throughout the world." But the President further adds, "that, as objections to the principle recommended by the House of Representatives, or, at least, to the consequences inseparable from it, and which are understood to apply to the law, have been raised, which may deserve a reconsideration of the whole subject,  [*63]  he has thought proper to suspend the conclusion of a new convention, until the definitive sentiments of Congress can be ascertained."

Your committee are therefore required to review the grounds of the law of 1820, and the resolution of 1823, to which the rejected, or, as they rather hope, the suspended convention, referred. The former was the joint act of both branches of Congress, approved by the President; the latter, although adopted with extraordinary unanimity, was the single act of the House of Representatives.

Upon the principle or intention of the act of Congress of 1820, making the slave trade punishable as piracy, the history of the act may reflect some light.

A bill from the Senate, entitled "An act to continue in force the act to protect the commerce of the United States, and punish the crime of piracy, and also to make further provision to punish the crime of piracy," came to the House of Representatives on the 27th of April, 1820, and was, on the same day, referred to a committee of the whole, to which had been referred a bill of similar purport and title, that had originated in the House of Representatives.

Upon the 8th of May following, the committee on the suppression  [*64]  of the slave trade reported an amendment of two additional sections to the Senate's bill; also, a bill to incorporate the American Society for colonizing the free people of colour of the United States, and three joint resolutions, two of which related to the objects of that society; but the first of which, in behalf of both Houses of Congress, requested the President "to consult and negotiate with all the governments where ministers of the United States are, or shall be, accredited, on the means of effecting an entire and immediate abolition of the African slave trade." The amendatory sections denounced the guilt and penalty of piracy against any citizen of the United States, of the crew or company of any foreign vessel, and any person whetever of the crew or company of any American vessel, who should be engaged in this traffic.

The amendments, bill, and resolutions, along with the explanatory report, which accompanied them, were referred to the committee of the whole above mentioned; and on the 11th of the same month, the House proceeded to consider them. After a discussion in the committee, the piracy bill, and its amendments, having been adopted, were reported, and both were concurred  [*65]  in by the House.The following day, the bill, asamended, being then on its passage, a motion was debated and negatwed, to recommit the bill to a select committee, with an instruction to strike out the last section of the amendment. The bill then passed, and was ordered to be returned, as amended, to the Senate.

On the same day, a motion prevailed to discharge the committee of the whole from the further consideration of the bill, and the resolutions which accompanied the report; and the particular resolution, already recited, being under consideration, to try the sense of the House on its merits, it was moved to lay it on the table. The yeas and nays having been ordered on this motion, it was rejected by a majority of 78 to 35 members. It having been again proposed to postpone the resolution, till the ensuing or second session of the same Congress, and this proposal being also determined in the negative, the resolution was engrossed, read the third time, passed, and ordered to be transmitted to the Senate on the same day with the piracy bill.

The amendments of this bill underwent like scrutiny and debate in the Senate, and were finally concurred in, the day after they were received  [*66]  from the House of Representatives, without any division apparent on the journal of that House.

The resolution which had been received by the Senate, at a different hour of the same day, was read a second time on the 15th of May, was further taken up and considered, as in committee of the whole, reported to the House without amendment, and ordered, after debate, to pass to a third reading. But this being the last day of the session of Congress, and a single member objecting "that it was against one of the rules of the Senate to read it the third time on the same day without unanimous consent," it remained on the table of that body, on its final adjournment, after an ineffectual effort to suspend one of their rules, against which many of the friends of the resolution felt themselves compelled, by their invariable usage, to vote in union with its enemies.

One of the objections to the resolution in the Senate, was founded upon the peculiar relation of that branch of the National Legislature to the Executive, in the ratification of treaties; which seemed, in the opinion of those who urged this argument, to interdict their concurrence in a request of the President to institute any negotiation  [*67]  whatever.

A cotemporary exposition of the object of the amendments of the piracy bill, and the resolution, which the House of Representatives adopted, by so large a majority, will be found in the report, which accompanied them, from the committee on the suppression of the slave trade, and which is hereto annexed. (A.) Those objects, it will be seen, were in perfect accordance with each other. They were designed to introduce, by treaty, into the code of international law, a principle, deemed by the committee essential to the abolition of the African slave trade, that it should be denounced and treated as piracy by the civilized world.

The resolution being joint, and having failed in the Senate, for the reason already stated, the subject of it was revived in the House of Representatives, at a very early period of the succeeding session of Congress, by a call for information from the Executive, which, being received, was referred to a committee of the same title with the last. Their report, after reviewing all the antecedent measures of the United States for the suppression of the slave trade, urgently recommended the cooperation of the American and British navy against this traffic,  [*68]  under the guarded provisions of a common treaty, authorizing the practice of a qualified and reciprocal right of search.

This report, which is also annexed, closed with a resolution, requesting "the President of the United States to enter into such arrangements as he might deem suitable and proper, with one or more of the maritime powers of Europe, for the effectual abolition of the African slave trade." (B.)

The United States had, by the treaty of Ghent, entered into a formal stipulation with Great Britain, "that both the contracting parties shall use their best endeavours to accomplish the entire abolition of this traffic."

The failure of the only joint attempt which had been made by England and America, at the date of this report, to give effect to this provision, being ascribable, in part, to a jealousy of the views of the former, corroborated by the language and conduct of one of the principal maritime powers of Europe, in relation to the same topic, the committee referred to the decision of Sir William Scott, in the case of the French ship Le Louis, to demonstrate that Great Britain claimed no right of search, in peace, but such as the consent of other nations should accord  [*69]  to her by treaty; and sought it by a fair exchange, in this tranquil mode, for the beneficent purpose of an enlarged humanity.

Certain facts, disclosed by the diplomatic correspondence of France and England, during the pendency of that case in the British Court of Admiralty, were calculated to guard the sympathies of America from being misguided by the language of the former power.

The painful truth was elicited, that France had evaded the execution of her promise at Vienna, to Europe and mankind. That she had, long after the date of that promise, tolerated, if she had not cherished, several branches of a traffic, which she had concurred in denouncing to be the opprobrium of Christendom, and which she had subsequently bound herself, by the higher obligations of a solemn treaty, to abolish, as inconsistent with the laws of God and nature.

Succeeding events in the councils of the French nation, have not impaired the force of this testimony. What authority can be accorded to the moral influence of a government which insults the humanity of a generous and gallant people, by pleading, in apology for the breach of its plighted faith, that its subjects required the indulgence of this  [*70]  guilty traffic!

The Emperor Napoleon, who re-established this commerce on the ruins of the French Republic, also abolished it again, whe he sought to conciliate the people of France, during that transient reign, which immediately preceded his final overthrow.

Congress adjourned without acting on this report.

By an instruction to the committee on the suppression of the slave trade, of the 15th of January, 1822, the same subject was a third time brought directly before the House of Representatives. The instruction called the attention of the committee to the present condition of the African slave trade; to the defects of any of the existing laws for its suppression, and to their appropriate remedies. In the report, made in obedience to this instruction, on the 12th of April, 1822, the committee state, that after having consulted all the evidence within their reach, they are brought to the mournful conclusion, that the traffic prevailed to a greater extent than ever, and with increased malignity; that its total suppression, or even sensible diminution, cannot be expected from the separate and disunited efforts of one or more States, so long as a single flag remains to cover it from  [*71]  detection and punishment. They renew, therefore, as the only practicable and efficient remedy, the concurrence of the United States with the maritime powers of Europe, in a modified and reciprocal exercise of the right of search.

In closing their report, the committee add, in effect, that they "cannot doubt that the people of America have the intelligence to distinguish between the right of searching a neutral on the high seas, in time of war, claimed by some belligerents, and that mutual, restricted, and peaceful concession, by treaty, suggested by the committee, and which is demaned in the name of suffering humanity." The committee had before intimated, that the remedy which they recommended to the House of Representatives, presupposed the exercise of the authority of another department of the government; and that objections to the exercise of this authority, in the mode which they had presumed to suggest, had hitherto existed in that department. Their report, also annexed, closed with a resolution differing in no other respect from that of the preceding session, han that it did not require the concurrence of the Senate, for the reason already suggested. (C.)

The report and  [*72]  resolution were referred to a committee of the whole, and never farther considered.

After a delay till the 20th of the succeeding February, a resolution was submitted to the House, which was evidently a part of the same system of measures, for the suppression of the slave trade, which had been begun by the act of the 3d of March, 1819, and followed up by the connected series of reports and resolutions, which the committee have reviewed, and which breathe the same spirt.

This resolution, in proposing to make the slave trade piracy, by the consent of mankind, sought to supplant, by a measure of greater rigour, the qualified international exchange of the right of search for the apprehension of the African slave dealer, and the British system of mixed tribunals, created for his trial and punishment: a system of which experience, and the recent extension of the traffic that it sought to limit, had disclosed the entire inefficacy.

The United States had already established the true denomination and grade of this offence, by a municipal law. The resolution contemplated, as did the report which accompanied and expounded that law, the extension of its principle, by negotiation, to the code  [*732]  of all nations.

It denounced the authors of this stupendous iniquity, as the enemies of the human race, and armed all men with authority to detect, pursue, arrest, and punish them.

Such a measure, to succeed to its fullest extent, must have a beginning somewhere. Commencing with the consent of any two states, to regard it as binding on themselves only, it would, by the gradual accession of others, enlarge the sphere of its operation, until it embraced, as the resolution contemplated, all the maritime powers of the civilized world.

While it involved of necessity the visit and search of piratical vessels, as belligerent rights against the common enemies of man, it avoided all complexity, difficulty, and delay, in the seizure, condemnation, and punishment of the pirate himself. It made no distinction in favour of those pirates who prey upon the property, against those who seize, torture, and kill, or consign to interminable and hereditary slavery, the persons of their enemies.

Your committee are at a loss for the foundation of any such discrimination.It is believed, that the most ancient piracies consisted in converting innocent captives into slaves; and those were not attended  [*74]  with the destruction of one third of their victims, by loathsome confinement and mortal disease.

While the modern, therefore, accords with the ancient denomination of this crime, its punishment is not disproportionate to its guilt. It has robbery and murder for its mere accessories, and moistens one continent with blood and tears, in order to curse another, by slow consuming ruin, physical and moral.

One high consolation attends upon the new remedy for this frightful and prolific evil. If once successful, it will for ever remain so, until, being unexerted, its very application will be found in history alone.

Can it be doubted, that if ever legitimate commerce shall supplant the source of this evil in Africa, and a reliance on other supplies of labour, its use elsewhere, a revival of the slave trade will be as impracticable as a reversion to barbarism? — that, after the lapse of a century from its extinction, except where the consequences of the crime shall survive, the stories of the African slave trade will become as improbable among the unlearned, as the expeditions of the heroes of Homer?

The principle of the law of 1820, making the slave trade a statutory piracy, and of  [*75]  the resolution of the House of Representatives, of May, 1823, which sought to render this denuciation of that offence universal, cannot, therefore, be misunderstood.

It was not misconceived by the House of Representatives, when ratified with almost unprecedented unanimity.

An unfounded suggestion has been heard, that the abortive attempt to amend the resolution, indicated that it was not considered as involving the right of search. The opposite conclusion is the more rational, if not, indeed, irresistible; that having, by the denomination of the crime, provided for the detection, trial, and punishment of the criminal, an amendment, designing to add what was already included in the main proposition, would be superfluous, if not absurd. But no such amendment was rejected. The House of Representatives, very near the close of the session of 1823, desirous of economizing time, threatened to be consumed by a protracted debate, entertained the previous question, while an amendment, the only one offered to the resolution, was depending.The effect of the previous question was to bring on an immediate decision upon the resolution itself, which was adopted by a vote of 131 members to 9.  [*76] 

It is alike untrue, that the resolution was regarded with indifference. The House had been prepared to pass it without debate, by a series of measures, having their origin in 1819, and steadily advancing to maturity.

Before the resolution did pass, two motions had been submitted, to lay it on the table, and to postpone it to a future day. The former was resisted by an ascertained majority of 104 to 25; the latter, without a division.

Is the House now ready to retrace its steps?

The committee believe not. Neither the people of America, nor their representatives, will sully the glory they have earned by their early labour, and steady perseverance, in sustaining, by their Federal and State Governments, the cause of humanity at home and abroad.

The calamity inflicted upon them by the introduction of slavery, in a form, and to an extent forbidding its hasty alleviation by intemperate zeal, is imputable to a foreign cause, for which the past is responsible to the present age. They will not deny to themselves, and to mankind, a generous co-operation in the only efficient measure of retributive justice, to an insulted and afflicted continent, and to an injured and degraded race.  [*77] 

In the independence of Spanish and Portuguese America, the committee behold a speedy termination of the few remaining obstacles to the extension of the policy of the resolution of May, 1823.

Brazil cannot intend to resist the voice of the residue of the continent of America; and Portugal, deprived of her great market for slaves, will no longer have a motive to resist the common feelings of Europe. And yet, while from the Rio de la Plata to the Amazon, and through the American archipelago, the importation of slaves covertly continues, if it be not openly countenanced, the impolicy is obvious, of denying to the American shore the protective vigilance of the only adequate check upon this traffic.

Your committee forbear to enter upon an investigation of the particular provisions of a depending negotiation, nor do they consider the message referred to them as inviting any such inquiry.

They will not regard a negotiation to be dissolved, which has approached so near consummation, nor a convention as absolutely void, which has been executed by one party, and which the United States, having first tendered, should be the last to reject.

(A.)

Report of the Committee to whom was referred,  [*78]  at the commencement of the present session of Congress, so much of the President's Message as relates to the Slave Trade, accompanied with a Bill to incorporate the American Society for colonizing the free people of colour of the United States.

MAY 8, 1820. — Read twice, and, with the bill, committed to the Committee of the whole House on the bill from the Senate, to continue in force an act to protect the commerce of the United States, and punish the crime of piracy, &c. &c.

The Committee on the Slave Trade, to whom was referred the memorial of the President and Board of Managers of the American Society for colonizing the free people of colour of the United States, have, according to order, had under consideration the several subjects therein embraced, and report: —

That the American Society was instituted in the City of Washington, on the 28th of December, 1816, for the benevolent purpose of affording to the free people of colour of the United States the means of establishing one or more independent colonies on the the western coast of Africa. After ascertaining, by? ission to that continent, and other preliminary inquiries, that then object is practicable, the Society requests  [*79]  of the Congress of the United States a charter of incorporation, and such other legislative aid as their enterprise may be thought to merit and require.

The memorialists anticipate from its success consequences the most beneficial to the free people of colour themselves, to the several States in which they at present reside, and to that continent which is to be the seat of their future establishment. Passing by the foundation of these anticipations, which will be seen in the annual reports of the Society and their former memorials, the attention of the committee has been particularly drawn to the connexion which the memorialists have traced between their purpose and the policy of the recent act of Congress, for the more effectual abolition of the African slave trade.

Experience has demonstrated that this detestable traffic can be no where so successfully assailed, as on the coast upon which it originates. Not only does the collection and embarkation of its unnatural cargoes consume more time than their subsequent distribution and sale in the market for which they are destined, but the African coast, frequented by the slave ships, is indented with so few commodious or accessible  [*80]  harbours, that, notwithstanding its great extent, it could be guarded by the vigilance of a few active cruisers. If to these be added colonies of civilized blacks, planted in commanding situations along that coast, no slave ship could possibly escape detection; and thus the security, as well as the enhanced profit which now cherishes this illicit trade, would be effectually counteracted. Such colonies, by diffusing a taste for legitimate commerce among the native tribes of that fruitful continent, would gradually destroy among them, also, the only incentive of a traffic which has hitherto rendered all African labour insecure, and spread desolation over one of the most beautiful regions of the globe.The colonies, and the armed vessels employed in watching the African coast, while they co-operated alike in the cause of humanity, would afford to each other mutual succour.

There is a single consideration, however, added to the preceding view of this subject, which appears to your committee, of itself, conclusive of the tendency of the views of the memorialists to further the operation of the act of the 3d of March, 1819. That act not only revokes the authority antecedently given to  [*81]  the several state and territorial governments, to dispose, as they pleased, of those African captives, who might be liberated by the tribunals of the United States, but authorizes and requires the President to restore them to their native country. The unavoidable consequence of this just and humane provision, is, to require some preparation to be made for their temporary succour, on being relanded upon the African shore. And no preparation can prove so congenial to its own object, or so economical, as regards the government charged with this charitable duty, as that which would be found in a colony of the free people of colour of the United States. Sustained by the recommendations of numerous societies in every part of the United States, and the approving voice of the legislative assemblies of several States, without inquiring into any other tendency of the object of the memorialists, your committee do not hesitate to pronounce it deserving of the countenance and support of the General Government. The extent to which these shall be carried, is a question not so easily determined.

The memorialists do not ask the Government to assume the jurisdiction of the territory, or to become,  [*82]  in any degree whatever, responsible for the future safety or tranquillity of the contemplated colony. They have prudently thought, that its external peace and security would be most effectually guarded, by an appeal in its behalf to the philanthropy of the civilized world; and to that sentiment of retributive justice, with which all Christendom is at present animated towards a much injured continent.

Of the constitutional power of the General Government to grant the limited aid contemplated by the accompanying bill and resolutions, your committee presume, there can exist no shadow of doubt; and they leave it to a period of greater national prosperity to determine how far the authority of Congress, the resources of the National Government, and the welfare and happiness of the United States, will warrant or require its extension.

Your committee are solemnly enjoined by the peculiar object of their trust, and invited by the suggestion of the memorialists, to inquire into the defects of the existing laws against the African slave trade.So long as it is in the power of the United States to provide additional restraints upon this odious traffic, they cannot be withheld, consistently with  [*83]  justice and the honour of the nation.

Congress have heretofore marked, with decided reprobation, the authors and abettors of this iniquitous commerce, in every form which it assumes; from the inception of its unrighteous purpose in America. through all the subsequent stages of its progress, to its final consummation; the outward voyage; the cruel seizure and forcible abduction of the unfortunate African from his native home, and the fraudulent transfer of the property thus acquired. It may, however, be questioned, if a proper discrimination of their relative guilt has entered into the measure of punishment annexed to these criminal acts.

Your committee cannot perceive wherein the offence of kidnapping an unoffending inhabitant of a foreign country; of chaining him down for a series of days, weeks, and months, amidst the dying and the dead, to the pestilential hold of a slave ship; of consigning him, if he chance to live out the voyage, to perpetual slavery in a remote and unknown land, differs in malignity from piracy, or why a milder punishment should follow the one, than the other crime.

On the other hand, the purchase of the unfortunate African, after his enlargement from the  [*84]  floating dungeon which wafts him to the foreign market, however criminal in itself, and yet more in its tendency to encourage this abominable traffic, yields in atrocity to the violent seizure of his person, his sudden and unprepared separation from his family, his kindred, his friends, and his country, followed by all the horrors of the middle passage. Are there not united in this offence all that is most iniquitous in theft, most daring in robbery, and cruel in murder? Its consequences to the victim, if he survives; to the country which receives him, and to that from which he is torn, are alike disastrous. If the internal wars of Africa, and their desolating effect, may be imputed to the slave trade, and that the greater part of them must now, cannot be questioned, this crime, considered in its remote, as well as its proximate consequences, is the very darkest in the whole catalogue of human iniquities; and its authors should be regarded as hostes humani generis.

In proposing to the House of Representatives to make such part of this offence as occurs upon the ocean piracy, your committee are animated, not by the desire of manifesting to the world the horror with which it is viewed  [*85]  by the American people; but by the confident expectation of promoting, by this example, its more certain punishment by all nations, and its absolute and final extinction.

May it not be believed, that when the whole civilized world shall have denounced the slave trade as piracy, it will become as unfrequent as any other species of that offence against the law of nations? Is it unreasonable to suppose, that negotiation will, with greater facility, introduce into that law such a provision as is here proposed, when it shall have been already incorporated into the separate code of each State?

The maritime powers of the Christian world have, at length, concurred in pronouncing sentence of condemnation against this traffic. The United States, having led the way in forming this decree, owe it to themselves, not to follow the rest of mankind in promoting its vigorous execution.

If it should be objected, that the legislation of Congress would be partial, and its benefit, for a time at least, local, it may be replied, that the constitutional power of the government has already been exercised in defining the crime of piracy, in accordance with similar analogies, to that which the committee  [*86]  have sought to trace between this general offence against the peace of nations and the slave trade.

In some of the foreign treaties, as well as in the laws of the United States, examples are to be found of piracies, which are not cognizable, as such, by the tribunals of all nations. Such is the unavoidable consequence of any exercise of the authority of Congress, to define and punish this crime. The definition and the punishment can bind the United States alone.

A bill from the Senate, making further provision for the exercise of this constitutional power, being now before the House of Representatives, your committee beg leave to offer such an amendment of its provisions, as shall attain the last object which they have presumed to recommend.

(B.)

Report of the Committee to which was referred so much of the President's Message as relates to the Slave Trade.

February 9, 1821. — Read, and ordered to lie upon the table.

The committee, to which is referred so much of the President's message as relates to the Slave Trade, and to which are referred the two messages of the President, transmitting, in pursuance of the resolution of the House of Representatives, of the 4th of December,  [*87]  a report of the Secretary of State, and enclosed documents, relating to the negotiation for the suppression of the Slave Trade, report: —

That the committee have deemed it advisable, previous to entering into a consideration of the proposed co-operation to exterminate the slave trade, to take a summary reviw of the constitution and laws of the United States relating to this subject. It will disclose the earnestness and zeal with which this nation has been actuated, and the laudable ambition that has animated her councils to take a lead in the reformation of a disgraceful practice, and one which is productive of so much human misery; it will, by displaying the constant anxiety of this nation to suppress the African slave trade, afford ample testimony that she will be the last to persevere in measures wisely digested, to effectuate this great and most desirable object, whenever such measures can be adopted in consistency with the leading principles of her local institutions.

In consequence of the existence of slavery in many of the States, when British colonies, the habits, and means of carrying on industry, could not be suddenly changed; and the constitution of the United States  [*88]  yielded to the provision, that the migration or importation of such persons, as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808.

But, long antecedent to this period, Congress legislated on the subject, wherever its power extended, and endeavoured, by a system of rigorous penalties, to suppress this unnatural trade.

The act of Congress of the 22d of March, 1794, contains provisions that no citizen or citizens of the United States, or foreigner, or any other person coming into, or residing within the same, shall, for himself, or any other person whatsoever, either as master, factor, or owner, build, fit, equip, load, or otherwise prepare, any ship or vessel, within any port or place of the United States, nor shall cause any ship or vessel to sail from any port or place within the same, for the purpose of carrying on any trade or traffic in slaves to any foreign country; or for the purpose of procuring from any foreign kingdom, place, or country, the inhabitants of such kingdom, place, or country, to be transported to any foreign country, port, or place whatever, to be sold or disposed of as slaves, under the  [*89]  penalty of the forfeiture of any such vessel, and of the payment of large sums of money by the persons offending against the directions of the act.

By an act of the 3d of April, 1798, in relation to the Mississippi territory, to which the constitutional provision did not extend, the introduction of slaves, under severe penalties, was forbidden, and every slave imported contrary to the act, was to be entitled to freedom.

By an act of the 10th of May, 1800, the citizens, or residents of this country, were, prohibited from holding any right or property in vessels employed in transporting slaves from one foreign country to another, on pain of forfeiting their right of property, and also double the value of that right in money, and double the value of their interest in the slaves; nor were they allowed to serve on board of vessels of the United States, employed in the transportation of slaves from one country to another, under the punishment of fine and imprisonment; nor were they permitted to serve on board foreign ships employed in the slave trade. By this act, also, the commissioned vessels of the United States were authorized to seize vessels and crews employed contrary to the act.  [*90] 

By an act of the 28th of February, 1803, masters of vessels were not allowed to bring into any port (where the laws of the state prohibited the importation) any negro, mulatto, or other person of colour, not being a native, a citizen, or registered seaman, of the United States, under severe penalties; and no vessel, having on board persons of the above description, was to be admitted to an entry; and if any such person should be landed from on board of any vessel, the same was to be forfeited.

By an act of the 2d of March, 1807, the importation of slaves into any port of the United States was to be prohibited after the first of January, 1808, the time prescribed by the constitutional provision. This act contains many severe provisions against any interference or participation in the slave trade, such as heavy fines, long imprisonments, and the forfeiture of vessels. The President was also authorized to employ armed vessels to cruise on any part of the coast where he might judge attempts would be made to violate the act, and to instruct the commanders of armed vessles to seize, and bring in, vessels found on the high seas, contravening the provisions of the law.

By an act of the  [*91]  20th of April, 1818, the laws, in prohibition of the slave trade, were further improved; this act is characterized with a peculiarity of legislative precaution, especially in the eighth section, which throws the labor of proof upon the defendant, that the coloured persons brought into the United States by him had not been brought in contrary to the laws.

By an act of the 3d of March, 1819, the power is continued in the President, to employ the armed ships of the United States to seize and bring into port any vessel engaged in the slave trade by citizens or residents of the United States; and such vessels, together with the goods and effects on board, are to be forfeited and sold, and the proceeds to be distributed, in like manner as is provided by law for the distribution of prizes taken from an enemy; and the officers and crew are to undergo the punishments inflicted by previous acts. The President, by this act, is authorized to make such regulations and arrangements as he may deem expedient, for the safe keeping, support, and removal, beyond the limits of the United States, of all such negroes, mulattoes, or persons of colour, as may have been brought within its jurisdiction, and  [*92]  to appoint a proper person or persons, residing on the coast of Africa, as agent or agents for receiving the negroes, mulattoes, or persons of colour, delivered from on board of vessels seized in the prosecution of the slave trade.

And in addition to all the aforesaid laws, the present Congress, on the 15th of May, 1820, believing that the then existing provisions would not be sufficiently available, enacted, that if any citizen of the United States, being of the crew or ship's company of any foreign ship or vessel engaged in the slave trade, or any person whatever, being of the crew or ship's company of any ship or vessel, owned in the whole or in part, or navigated for, or in behalf of, any citizen or citizens of the United States, shall land from any such ship or vessel, and on foreign shore seize, any negro or mulatto, not held to service or labour, by the laws of either of the States or territories of the United States, with intent to make such negro or mulatto a slave, or shall decoy, or forcibly bring, or carry, or shall receive such negro or mulatto, on board any such ship or vessel, with intent as aforesaid, such citizen or person shall be adjudged a pirate, and on conviction  [*93]  shall suffer death.

The immoral and pernicious practice of the slave trade has attracted much public attention in Europe, within the last few years, and in a Congress at Vienna, on the 8th of February, 1815, five of the principal powers made a solemn engagement, in the face of mankind, that this traffic should be made to cease; in pursuance of which, these powers have enacted municipal laws to suppress the trade. Spain, although not a party to the original engagement, did, soon after, in her treaty with England, stipulate for the immediate abolition of the Spanish slave trade, to the north of the equator, and for its final and universal abolition on the 30th of May, 1820.

Portugal, likewise, in her treaty in 1817, stipulated that the Portuguese slave trade on the coast of Africa should entirely cease to the northward of the equator, and engaged that it should be unalwful for her subjects to purchase or trade in slaves, except to the southward of the line; the precise period at which the entire abolition is to take place in Portugal does not appear to be finally fixed; but the Portuguese ambassador in the presence of the Congress at Vienna, declared that Portugal, faithful to her  [*94]  principles, would not refuse to adopt the term of eight years, which term will expire in the year 1823.

At this time, among the European states, there is not a flag which can legally cover this inhuman traffic to the north of the line: nevertheless, experience has proved the inefficacy of the various and rigorous laws which have been made in Europe and in this country; it being a lamentable fact, that the disgraceful practice is even now carried on to a surprising extent. During the last year, Captain Trenchard, the commander of the United States sloop of war the Cyane, found that part of the coast of Africa which he visited lined with vessels, engaged, as it is presumed, in this forbidden traffic; of these, he examined many: and five, which appeared to be fitted out on American account, he sent into the jurisdiction of the United States, for adjudication; each of them, it is believed, has been condemned, and the commanders of two of them have been sentenced to the punishment prescribed by the laws of the United States.

The testimony recently published, with the opinion of the presiding Judge of the United States Court of the Southern District in the State of New-York, in the case  [*95]  of the schooner Plattsburg, lays open a scene of the grossest fraud that could be practised to deceive the officers of government, and conceal the unlawful transaction.

The extension of the trade for the last 25 or 30 years must, in a degree, be conjectural; but the best information that can be obtained on the subject, furnishes good foundation to believe, that, during that period, the number of slaves withdrawn from western Africa amounts to upwards of a million and a half; the annual average would be a mean somewhere between fifty and eighty thousand.

The trade appears to be lucrative in proportion to its heinousness and, as it is generally inhibited, the unfeeling slave dealers, in order to elude the laws, increase its horrors; the innocent Africans, who are mercilessly forced from their native homes in irons, are crowded in vessels and situations, which are not adapted for the transportation of human beings; and this cruelty is frequently succeeded, during the voyage to their destination, with dreadful mortality. Further information on this subject will appear in a letter from the Secretary of the Navy, enclosing two other letters, marked 1 and 2, and also by the extract of  [*96]  a letter from an officer of the Cyane, dated April 10, 1820, which are annexed to this report. While the slave trade exists, there can be no prospect of civilization in Africa.

However well disposed the European powers may be to effect a practical abolition of the trade, it seems generally acknowledged, that, for the attainment of this object, it is necessary to agree upon some concerted plan of co-operation; but, unhappily, no arrangement has as yet obtained universal consent.

England has recently engaged in treaties with Spain, Portugal, and the Netherlands, in which the mutual right of visitation and search is exchanged. This right is of a special and limited character, as well in relation to the number and description of vessels, as to space; and to avoid possible inconveniences, no suspicious circumstances are to warrant the detention of a vessel; this right is restricted to the simple fact of slaves being on board.

These treaties contemplate the establishment of mixed Courts, formed of an equal number of individuals of the two contracting nations, the one to reside in a possession belonging to his Britannic Majesty; the other within the territory of the other respective  [*97]  power.When a vessel is visited and detained, it is to be taken to the nearest Court, and, if condemned, the vessel is to be declared a lawful prize, as well as the cargo, and are to be sold for the profit of the two nations; the slaves are to receive a certificate of emancipation, and to be delivered over to the government on whose territory the Court is which passes sentence, to be employed as servants or free labourers; each of the governments binds itself to guaranty the liberty of such portion of these individuals as may be respectively assigned to it. Particular provisions are made for remuneration, in case vessels are not condemned after trial, and special instructions are stipulated to be furnished to commanders of vessels possessing the qualified right of visitation and search.

These powers entertain the opinion, that nothing short of the concession of a qualified right of visitation and search can practically suppress the slave trade. An association of armed ships is contemplated, to form a species of naval police, to be stationed principally in the African seas, where the commanders of the ships will be enabled to co-operate in harmony and concert.

The United States have  [*98]  been earnestly invited, by the principal Secretary of State for Foreign Affairs of the British government, to join in the same, or similar arrangements; and this invitation has been sanctioned and enforced, by a unanimous vote of the House of Lords and Commons, in a manner that precludes all doubts as to the sincerity and benevolence of their design.

In answer to this invitation, the President of the United States has expressed his regret that the stipulations in the treaties communicated, are of a character to which the peculiar situation and institutions of the United States do not permit them to accede.

The objections made are contained in an extract of a letter from the Secretary of State, under date of the 2d November, 1818; in which it is observed, that, "in examining the provisions of the treaties communicated by Lord Castlereagh, all the essential articles appear to be of a character not adaptable to the institutions, or to the circumstances of the United States. The powers agreed to be reciprocally given to the officers of the ships of war of either party, to enter, search, capture, and carry into port for adjudication, the merchant vessels of the other, however qualified  [*99]  and restricted, is most essentially connected with the institution, by each treaty, of two mixed Courts, one of which is to reside in the external or colonial possession of each of the two parties respectively. This part of the system is indispensable to give it that character of reciprocity, without which the right granted to the armed ships of one nation, to search the merchant vessels of another, would be rather a mark of vassalage than of independence. But to this part of the system, the United States, having no colonies either on the coast of Africa, or in the West Indies, cannot give effect. That, by the constitution of the United States, it is provided, that the judicial power of the United States shall be vested in a Supreme Court, and in such inferior Courts as the Congress may, from time to time, ordain and establish. It provides, that Judges of these Courts shall hold their offices during good behaviour; and that they shall be removable by impeachment, or conviction of crimes and misdemeanors. There may be doubts, whether the power of the government of the United States is competent to institute a Court for carrying into execution their penal statutes beyond the territories  [*100]  of the United States — a Court consisting partly of foreign Judges, not amenable to impeachment for corruption, and deciding upon statutes of the United States without appeal.

"That the disposal of the negroes found on board of the slave trading vessels, which might be condemned by the sentence of these mixed Courts, cannot be carried into effect by the United States; for, if the slaves of vessels condemned by the mixed Courts, should be delivered over to the government of the United States as freemen, they could not, but by their own consent, be employed as servants or free labourers. The condition of the blacks being, in this Union, regulated by municipal laws of the separate States, the government of the United States can neither guaranty their liberty in the states where they could only be received as slaves, nor control them in the States where they would be recognised as free. That the admission of a right in the officers of foreign ships of war, to enter and search the vessels of the United States in time of peace, under any circumstances whatever, would meet with universal repugnance in the public opinion of this country; and that there would be no prospect of a ratification,  [*101]  by advice and consent of the Senate, to any stipulation of that nature. That the search by foreign officers, even in time of war, is so obnoxious to the feelings and recollections of this country, that nothing could reconcile them to the extension of it, however qualified or restricted, to a time of peace; and that it would be viewed in a still more aggravated light, if, as in the treaty with the Netherlands, connected with a formal admission, that even vessels under convoy of ships of war of their own nation, should be liable to search by the ships of war of another."

The committee will observe, in the first instance, that a mutual right of search appears to be indispensable to the great object of abolition; for, while flags remain as a cover for this traffic, against the right of search by any vessels except of the same nation, the chance of detection will be much less than it would be if the right of search was extended to vessels of other powers; and as soon as any one nation should cease to be vigilant in the discovery of infractions practised on its own code, the slave dealers would avail themselves of a system of obtaining fraudulent papers, and concealing the real ownership  [*102]  under the cover of such flags, which would be carried on with such address, as to render it easy for the citizens or subjects of one state to evade their own municipal laws; but if a concerted system existed, and a qualified right of mutual search was granted, the apprehension of these piratical offenders would be reduced to a much greater certainty; and the very knowledge of the existence of an active and vigorous system of co-operation would divert many from this practice, as the unlawful trade would become too hazardous for profitable speculation.

In relation to any inconveniences that might result from such an arrangement, the commerce of the United States is so limited on the African coast, that it could not be much affected by it; and as it regards economy, the expense of stationing a few vessels on that coast would not be much greater than to maintain them at any other place.

The committee have briefly noticed the practical results of a reciprocal right of search, as it bears on the slave trade; but the objection as to the propriety of ceding this right remains. It is with deference that the committee undertake to make any remarks upon it. They bear in recollection the opinions  [*103]  entertained in this country on the practice of searching neutral vessels in time of war; but they cannot perceive that the right under discussion is, in principle, allied, in any degree, to the general question of search; it can involve no commitment, nor is it susceptible of any unfavourable inference on that subject; and even if there were any affinity between the cases, the necessity of a special agreement would be inconsistent with the idea of existing rights: the proposal itself, in the manner made, is a total abandonment, on the part of England, of any claim to visit and search vessels in a time of peace, and this question has been unequivocally decided in the negative in her admiralty courts.

Although it is not among the objections that the desired arrangment would give any colour to a claim or right of search in time of peace, yet, lest the case in this respect may be prejudiced in the minds of any, the committee will observe, that the right of search, in time of peace, is one that is not claimed by any power as a part of the law of nations; no nation pretends that it can exercise the right of visitation and search upon the common and unappropriated parts of the sea, except  [*104]  upon the belligerent claim. A recent decision in the British Admiralty Court, in the case of the French slave ship Le Louis, is clear and decisive on this point. The case is annexed to this report.

In regard, then, to the reciprocal right wished to be ceded, it is reduced to the simple inquiry whether, in practice, it will be beneficial to the two contracting nations. Its exercise, so far as it relates to the detention of vessels, as it is confined to the fact of slaves being actually on board, precludes almost the possibility of accident or much inconvenience.

In relation also to the disposal of the vessels and slaves detained, an arrangement, perhaps, could be effected, so as to deliver them up to the vessels of the nation to which the detained vessel should belong. Under such an understanding, the vessels and slaves delivered to the jurisdiction of the United States, might be disposed of in conformity with the provisions of our own act of the 3d of March, 1819; and an arrangement of this kind would be free from any of the other objections.

An exchange of the right of search, limited in duration, or to continue at pleasure, for the sake of experiment, might, it is anxiously  [*105]  hoped, be so restricted to vessels and seas, and with such civil and harmonious stipulations, as not to be unacceptable.

The feelings of this country on the general question of search, have often been roused to a degree of excitement that evince their unchangeable character; but the American people will readily see the distinction between the case; the one, in its exercise to the extent claimed, will ever produce irritation, and excite a patriotic spirit of resistance; the other is amicable and charitable; the justness and nobleness of the undertaking, are worthy of the combined concern of Christian nations.

The detestable crime of kidnapping the unoffending inhabitants of one country, and chaining them to slavery in another, is marked with all the atrociousness of piracy; and, as such, it is stigmatized and punishable by our own laws.

To efface this reproachful stain from the character of civilized mankind, would be the proudest triumph that could be achieved in the cause of humanity. On this subject, the United States, having led the way, owe it to themselves to give their influence and cordial co-operation to any measure that will accomplish the great and good purpose; but this  [*106]  happy result, experience has demonstrated, cannot be realized by any system, except a concession by the maritime powers to each other's ships of war, of a qualified right of search; if this object was generally attained, it is confidently believed that the active exertions of even a few nations would be sufficient entirely to suppress the slave trade.

The slave dealers could be successfully assailed on the coast upon which the trade originates, as they must necessarily consume more time in the collection and embarkation of their cargoes, than in the subsequent distribution in the markets for which they are destined; this renders that coast the most advantageous position for their apprehension; and, besides, the African coast, frequented by the slave ships, is indented with so few commodious or accessible harbours, that, notwithstanding its great extent, it could be guarded by the vigilance of a small number of cruisers. But if the slave ships are permitted to escape from the African coast, and to be dispersed to different parts of the world, their capture would be rendered uncertain and hopeless.

The committee, after much reflection, offer the following resolution:

Resolved, by  [*107]  the Senate and House of Representatives of the United States of America, in Congress assembled, That the President of the United States be requested to enter into such arrangements as he may deem suitable and proper, with one or more of the maritime powers of Europe, for the effectual abolition of the African slave trade.

Case of the French slave ship Le Louis, extracted from the 12th annual report of the African Institution, printed in 1818.

This vessel sailed from Martinique on the 30th of January, 1816, on a slave-trading voyage to the coast of Africa, and was captured near Cape Mesurado, by the Sierra Leone colonial vessel of war, the Queen Charlotte, after a severe engagement, which followed an attempt to escape, in which eight men were killed and twelve wounded of the British; and, proceedings having been instituted against Le Louis in the Vice Admiralty court of Sierra Leone, as belonging to French subjects, and as fitted out, manned, and navigated, for the purpose of carrying on the slave trade, after the trade had been abolished both by the internal laws of France, and by the treaty between that country and Great Britain, the ship and cargo were condemned as forfeited to  [*108]  his majesty.

From this sentence an appeal having been made to the High Court of Admiralty, the cause came on for hearing, when the Court reversed the judgment of the inferior Court, and ordered the restitution of the property to the claimants.

The judgment of Sir William Scott was given at great length.The directors will advert to such points of it as are immediately connected with their present subject. "No doubt," he said, "could exist that this was a French ship, intentionally engaged in the slave trade." But, as these were facts which were ascertained in consequence of its seizure, before the seizor could avail himself of this discovery, it was necessary to inquire whether he possessed any right of visitation and search; because, if the discovery was unlawfully produced, he could not be allowed to take advantage of the consequences of his own wrong.

The learned Judge then discussed, at considerable length, the question, whether the right of search exists in time of peace. And he decided it without hesitation in the negative. "I can find," he says, "no authority that gives the right of interruption to the navigation of states in amity, upon the high seas, excepting that which  [*109]  the rights of war give to both belligerents against neutrals. No nation can exercise a right of visitation and search upon the common and unappropriated parts of the sea, save only on the belligerent claim." He admits, indeed, and with just concern, that if this right be not conceded in time of peace, it will be extremely difficult to suppress the traffic in slaves.

"The great object, therefore, ought to be, to obtain the concurrence of other nations, by application, by remonstrance, by example, by every peaceable instrument which men can employ to attract the consent of men. But a nation is not justified in assuming rights that do not belong to her, merely because she means to apply them to a laudable purpose."

"If this right," he adds, "is imported into a state of peace, it must be done by convention; and it will then be for the prudence of states to regulate, by such convention, the exercise of right, with all the softenings of which it is susceptible."

The judgment of Sir William Scott would have been equally conclusive against the legality of this seizure, even if it could have been established in evidence that France had previously prohibited the slave trade by her municipal  [*110]  laws. For the sake of argument, however, he assumes that the view he has taken of the subject might, in such a case, be controverted. He proceeds, therefore, to inquire how far the French law had actually abolished the slave trade at the time of this adventure. The actual state of the matter, as collected from the documents before the Court, he observes, is this:

"On the 27th of July, 1815, the British minister at Paris writes a note to Prince Talleyrand, then minister to the King of France, expressing a desire on the part of his court to be informed whether, under the law of France as it then stood, it was prohibited to French subjects to carry on the slave trade. The French minister informs him, in answer, on the 30th of July, that the law of the Usurper on that subject was null and void, (as were all his decrees,) but that his Most Christian Majesty had issued directions, that, on the part of France, "the traffic should cease, from the present time, every where, and for ever."

"In what form these directions were issued, or to whom addressed, does not appear; but, upon such authority, it must be presumed that they were actually issued. It is, however, no violation of the respect  [*111]  due to that authority, to inquire what was the result or effect of those directions so given; what followed in obedience to them in any public and binding form. And I fear I am compelled to say, that nothing of the kind followed, and that the directions must have slept in the portfolio of the office to which they were addressed; for it is, I think, impossible, that if any public and authoritative ordinance had followed, it could have escaped the sleepless attention of many persons in our own country, to all public foreign proceedings upon this interesting subject. Still less would it have escaped the notice of the British resident minister, who, at the distance of a year and a half, is compelled, on the part of his own court, to express a curiosity to know what laws, orainances, instructions, and other public and ostensible acts, had passed for the abolition of the slave trade.

On the 30th of November, in the same year, (1815,) the additional article of the definitive treaty, a very solemn instrument, most undoubtedly, is formally and publicly executed, and it is in these terms: 'The high contracting parties, sincerely desiring to give effect to the measures on which they deliberated  [*112]  at the Congress of Vienna, for the complete and universal abolition of the slave trade; and having each, in their respective dominions, prohibited, without restriction, their colonies and subjects from taking any part whatever in this traffic, engage to renew, conjointly, their efforts, with a view to insure final success to the principle which they proclaimed in the declaration of the 8th of February, 1815, and to concert, without loss of time, by their ministers at the court of London, the most effectual measures for the entire and definitive abolition of the traffic, so odious and so highly reproved by the laws of religion and nature.'

Now, what are the effects of this treaty? According to the view I take of it, they are two, and two only; one declaratory of a fact, the other promissory of future measures.It is to be observed, that the treaty itself does not abolish the slave trade; it does not inform the subjects that that trade is hereby abolished, and that, by virtue of the prohibitions therein contained, its subjects shall not, in future, carry on the trade; but the contracting parties mutually inform each other of the fact, that they have, in their respective dominions, abolished  [*113]  the slave trade, without stating at all the mode in which that abolition had taken place."

"It next engages to take future measures for the universal abolition.

That, with respect to both the declaratory and promissory parts, Great Britain has acted with the optima fides, is known to the whole world, which has witnessed its domestic laws, as its foreign negotiations.

I am very far from intimating that the government of this country did not act with perfect propriety in accepting the assurance that the French government had actually abolished the slave trade, as a sufficient proof of the fact; but the fact is now denied by a person who has a right to deny it; for, though a French subject, he is not bound to acknowledge the existence of any law which has not publicly appeared; and the other party having taken upon himself the burthen of proving it in the course of a legal inquiry, the Court is compelled to demand and expect the ordinary evidence of such a disputed fact. It was not till the 15th of January, in the present year, (1817,) that the British resident minister applies for the communication I have described, of all laws, instructions, ordinances, and so on; he receives in  [*114]  return what is delivered by the French minister as the ordinance, bearing date only one week before the requested communication, namely, the 8th of January. It has been asserted, in argument, that no such ordinance has yet, up to this very hour, even appeared in any printed or public form, however much it might import both French subjects, and the subjects of foreign states, so to receive it.

How the fact may be, I cannot say; but I observe, it appears before me in a manuscript form; and by inquiry at the Secretary of State's office, I find it exists there in no other plight or condition.

In transmitting this to the British government, the British minister observes, it is not the document he had reason to expect; and, certainly, with much propriety; for how does the document answer his requisition? His requisition is for all laws, ordinances, instructions, and so forth. How does this, a simple ordinance, professing to have passed only a week before, realize the assurance given on the 30th of July, 1815, that the traffic "should cease, from the present time, every where, and for ever?" or how does this realize the promise made in November, thet measures should be taken, without  [*115]  loss of time, to prohibit not only French colonists, but French subjects likewise, from taking any part whatever in this traffic? What is this regulation in substance? Why, it is a mere prospective colonial regulation, prohibiting the importation of slaves into the French colonies from the 8th of January, 1817.

Consistently with this declaration, even if it does exist, in the form and with the force of a law, French subjects may be yet the common carriers of slaves to any foreign settlement that will admit them, and may devote their capital and their industry, unmolested by law, to the supply of any such markets.

"Supposing, however, the regulations to contain the fullest and most entire fulfilment of the engagement of France, both in time and in substance, what possible application can a prospective regulation of January, 1817, have to a transaction of March, 1816?

Nobody is now to be told that a modern edict which does not appear, cannot be presumed; and that no penal law of any state can bind the conduct of its subjects, unless it is conveyed to their attention in a way which excludes the possibility of honest ignorance. The very prodection of a law professing to be enacted  [*116]  in the beginning of 1817, is a satisfactory proof that no such law existed in 1816, the year of this transaction. In short, the seizor has entirely failed in the task he has undertaken, in proving the existence of a prohibitory law, enacted by the legal government of France, which can be applied to the present transaction."

(C.)

Report of the Committee on the Suppression of the Slave Trade; made in the House of Representatives, April 12, 1822.

The Committee on the suppression of the Slave Trade, to whom was referred a resolution of the House of Representatives, of the 15th of January last, instructing them to inquire whether the laws of the United States prohibiting that traffic have been duly executed; also, into the general operation thereof; and, if any defects exist in those laws, to suggest adequate remedies therefor; and to whom many memorials have been referred touching the same subject; have, according to order, had the said resolution and memorials under consideration, and beg leave to report: —

That, under the just and liberal construction put by the Executive on the act of Congress of March 3d, 1819, and that of the 15th of May, 1820, inflicting the punishment of piracy  [*117]  on the African slave trade, a foundation has been laid for the most systematic and vigorous application of the power of the United States, to the suppression of that iniquitous traffic. Its unhappy subjects, when captured, are restored to their country, agents are there appointed to receive them, and a colony, the offspring of private charity, is rising on its shores, in which such as cannot reach their native tribes, will find the means of alleviating the calamities they may have endured before their liberation.

When these humane provisions are contrasted with the system which they supersede, there can be but one sentiment in favour of a steady adherence to their support. The document accompanying this report, and marked A., states the number of Africans seized or taken within or without the limits of the United States, and brought there, and their present condition.

It does not appear to your committee, that such part of the naval force of the country as has been hitherto employed in the execution of the laws against this traffic, could have been more effectually used for the interest and honour of the nation. The document marked B., is a statement of the names of the vessels,  [*118]  and their commanders, ordered upon this service, with the dates of their departure, &c. The first vessel destined for this service, arrived upon the coast of Africa in March, 1820, and in the few weeks she remained there, sent in for adjudication four American vessels, all of which were condemned. The four which have been since employed in this service, have made five vists, (the Alligator having made two cruises in the past summer,) the whole of which have amounted to a service of about ten months by a single vessel, within a period of near two years; and since the middle of last November, the commencement of the healthy season on that coast, no vessel has been, nor, as your committee is informed, is under orders for that service.

The committee are thus particular on this branch of their inquiry, because unfounded rumours have been in circulation, that other branches of the public service ahve suffered from the destination given to the inconsiderable force above stated, which, small as it has been, has, in every instance, been directed, both in its outward and homeward voyage, to cruise in the West India seas.

Before they quit this part of their inquiry, your committee feel it  [*119]  their duty to state, that the loss of several of the prizes made in this service, is imputable to the size of the ships engaged in it. The efficacy of this force, as well as the health and discipline of the officers and crews, conspire to recommend the employment of no smaller vessel than a corvette or a sloop of war, to which it would be expedient to allow the largest possible complement of men; and, if possible, she should be accompanied by a tender, or vessel drawing less water. The vessels engaged in this service should be frequently relieved, but the coast should at no time be left without a vessel to watch and protect its shoures.

Your committee find it impossible to measure with precision the effect produced upon the American branch of the slave trade, by the laws above mentioned, and the seizures under them. They are unable to state, whether those American merchants, the American capital and seamen, which heretofore aided in this traffic, have abandoned it altogether, or have sought shelter under the flags of other nations. It is ascertained, however, that the American flag, which heretofore covered so large a portion of the slave trade, has wholly disappeared from the  [*120]  coasts of Africa. The trade, notwithstanding, increases annually, under the flags of other nations. France has incurred the reproach of being the greatest adventurer in this traffic, prohibited by her laws; but it is to be presumed, that this results not so much from the avidity of her subjects for this iniquitous gain, as from the safety which, in the absence of all hazard of capture, her flag affords to the greedy and unprincipled adventurers of all nations. It is neither candid nor just to impute to a gallant and highminded people, the exclusive commission of crimes, which the abandoned of all nations are alike capable of perpetrating, with the additional wrong to France herself, of using her flag to cover and protect them. If the vigour of the American navy has saved its banner from like reproach, it has done much to preserve, unsullied, its high reputation, and amply repaid the expense charged upon the public revenue by a system of laws to which it has given such honourable effect.

But the conclusion to which your committee has arrived, after consulting all the evidence within their reach, is, that the African slave trade now prevails to a great extent, and tht its total  [*121]  suppression can never be effected by the separate and disunited efforts of one or more states; and as the resolution to which this report refers, requires the suggestion of some remedy for the defects, if any exist, in the system of laws for the suppression of this traffic, your committee beg leave to call the attention of the House to the report and accompanying documents submitted to the last Congress, by the committee on the slave trade, and to make the same a part of this report. That report proposes, as a remedy for the existing evils of the system, the concurrence of the United States with one or all the maritime powers of Europe, in a modified and reciprocal right of search, on the African coast, with a view to the total suppression of the slave trade.

It is with great delicacy that the committee have approached this subject; because they are aware that the remedy which they have presumed to recommend to the consideration of the House, requires the exercise of the power of another department of this government, and that objections to the exercise of this power, in the mode here proposed, have hitherto existed in that department.

Your committee are confident, however, that  [*122]  these objections apply rather to a particular proposition for the exchange of the right of search, than to that modification of it which presents itself to your committee. They contemplate the trial and condemnation of such American citizens as may be found engaged in this forbidden trade, not by mixed tribunals, sitting in a foreign country, but by existing Courts of competent jurisdiction, in the United States. They propose the same disposition of the captured Africans now authorized by law; and, least of all, their detention in America.

They contemplate an exchange of this right, which shall be in all respects reciprocal; an exchange which, deriving its sole authority from treaty, would exclude the pretension, which no nation, however, has presumed to set up, that this right can be derived from the law of nations; and further, they have limited it, in their conception of its application, not only to certain latitudes, and to a certain distance from the coast of Africa, but to a small number of vessels to be employed by each power, and to be previously designated. The visit and search, thus restricted, it is believed, would insure the co-operation of one great maritime power,  [*123]  in the proposed exchange, and guard it from the danger of abuse.

Your committee cannot doubt that the people of America have the intelligence to distinguish between the right of searching a neutral on the high seas, in time of war, claimed by some belligerents, and that mutual, restricted, and peaceful concession by treaty, suggested by your committee, and which is demanded in the name of suffering humanity.

In closing this report, they recommend to the House the adoption of the following resolution, viz:

Resolved, That the President of the United States be requested to enter into such arrangements as he may deem suitable and proper, with one or more of the maritime powers of Europe, for the effectual abolition of the slave trade.

The following resolution was submitted to the House of Representatives, on the 10th of February, 1823, and adopted the 28th of the same month:

Resolved, That the President of the United States be requested to enter upon, and to prosecute, from time to time, such negotiations with the several maritime powers of Europe and America, as he may deem expedient, for the effectual abolition of the African slave trade, and its ultimate denunciation, as piracy,  [*124]  under the law of nations, by the consent of the civilized world.

(B.)

SPANISH DECREE.

"The introduction of negro slaves into America was one of the first measures which my predecessors dictated for the support and prosperity of those vast regions, soon after their discovery. The impossibility of inducing the Indians to engage in different useful though painful labours, arising from their complete ignorance of the conveniences of life, and the very small progress they had made in the arts of social existence, required that the working of the mines, and the cultivation of the soil, should be committed to hands more robust and active than theirs.

This measure, which did not create slavery, but only took advantage of that which existed through the barbarity of the Africans, by saving from death their prisoners, and alleviating their sad condition, far from being prejudicial to the negroes transported to America, conferred upon them not only the incomparable blessing of being instructed in the knowledge of the true God, and of the only religion in which the Supreme Being desires to be adored by his creatures, but likewise all the advantages which accompany civilization, without subjecting  [*125]  them, in their state of servitude, to a harder condition than that which they endured in freedom, when free in their native country. Nevertheless, the novelty of this system demanded prudence in its execution; and thus it happened, that the introduction of negro slaves into America depended always on particular licenses, which my predecessors granted according to circumstances of places and times, till the era when untrained slaves were generally permitted to be imported, both in national and foreign vessels, by the royal proclamations of the 28th of September, 1789, the 12th of April, 1798, and the 22d of April, 1804; in each of which the different places for their introduction were determined. All this clearly evinced, that the Christian wisdom of my predecessors considered always these provisions as exceptions to the law, and dependent on variable conditions. Although the license granted the 22d of April, 1804, had not expired, when Divine Providence restored me to the throne to which it had destined me, and of which an unjust usurper had perfidiously attempted to deprive me, the disturbances and dissentions excited in my American dominions, during my absence, immediately fixed  [*126]  my sovereign attention; and meditating incessantly on the most appropriate means of re-establishing good order in these remote possessions, and giving them all the encouragement of which they are capable, I was now slow in perceiving, that the circumstances which had induced my predecessors to permit the traffic in slaves on the coast of Africa, and their introduction into both Americas, had entirely changed. In these provinces the number of indigenous negroes has increased prodigiously, and even that of free negroes, under the fostering care of a mild government, and the Christian humanity of the Spanish proprietors; the number of the white inhabitants has likewise been much augmented, and the climate is not now so prejudicial to the latter as it was before the soil was cleared of wood, and subjected to cultivation. The advantage, likewise, which resulted to the inhabitants of Africa from their transportation to a civilized country, is not now so urgent or exclusive, since an enlightened nation has undertaken the glorious task of civilizing them in their own land. At the same time, the general progress of improvement in Europe, and the spirit of humanity which directed its late  [*127]  transactions, in restoring the political edifice, which the wickedness of a usurped government had shaken to its foundation, have excited among European sovereigns a desire to see this traffic abolished; and at the Congress of Vienna, agreeing on the necessity of the abolition, they occupied themselves in facilitating its execution, by the most amicable negotiations with those powers which had colonies, meeting in me that disposition which became so laudable an undertaking. Those considerations moved my royal mind to inform itself from enlightened persons, zealous for the prosperity of my states, as to the effects which the abolition of the traffic would produce on them. Having seen their reports, and being desirous to attain certainty in a matter of so grave importance, I transmitted them to my council of the Indies, with my royal order, of the 14th of June, 1815, that it might communicate to me its opinion and advice.Having collected all these copious materials, and having examined the proposition which the same supreme tribunal laid before me in its deliberation of the 15th of February, 1816; answering to the confidence which I repose in it, and coinciding with its opinion respecting  [*128]  the abolition of the traffic in slaves; and co-operating with the King of Great Britian by a solemn treaty, embracing all the points of reciprocal interest involved in this important transaction; and determining that the time for the abolition was arrived, the interest of my American States being duly reconciled with the sentiments of my royal mind, and the wishes of all the sovereigns, my friends and allies; I have decreed as follows:

"Art. i. From this day forward, I prohibit all my subjects, both in the Peninsula and in America, from going to buy negroes on the coasts of Africa, north of the line. The negroes who may be bought on the said coasts shall be declared free in the first port of my dominions at which the ship in which they are transported shall arrive. The ship itself, together with the remainder of its cargo, shall be confiscated to the royal treasury, and the purchaser, the captain, the master, and pilot, shall be irrevocably condemned to ten years' transportation to the Philippines.

Art. ii. The above punishment does not attach to the trader, the captain, the master, and pilot, of the vessels which sail from any port of my dominions, for the coasts of Africa,  [*129]  north of the line, before the 22d of November of the present year; to which period I grant, besides, an extension of six months, counting from the above date, to complete their voyages.

Art. iii. From the 30th of May, 1820, I equally prohibit all my subjects, as well in the Peninsula as in America, from going to purchase negroes along those parts of the coast of Africa which are to the south of the line, under the same penalties imposed in the first article of this decree; allowing, likewise, the space of five months from the above date to complete the voyages that may be undertaken before the abovementioned 30th of May, in which the traffic in slaves shall cease in all my dominions, as well in Spain as in America.

Art. iv. Those who, using the permission which I grant till the 30th of May, 1820, shall purchase slaves on that part of the coast of Africa which lies south of the line, shall not be allowed to carry more slaves than five to two tons of tonnage of their vessel; and any persons contravening this enactment shall be subjected to the penalty of losing all the slaves on board, who shall be declared free at the first port of my dominions in which the ship arrives.

Art. v.  [*130]  This computation is made without a reference to those who may be born during the voyage, or to those who may be serving on board as sailors or servants.

Art. vi. Foreign vessels, which may import negroes into any port of my dominions, shall be subjected to the regulations prescribed in this decree; and in case of contravening them, shall be subjected to the penalties contained in it.

And, my royal pleasure being that the above decree should circulate in my dominions of America and Asia, for its punctual observance I communicated it to my Supreme Council of the Indies, signed with my own hand, under date of the 22d of September last past; and on its being published in that tribunal the 1st instant, a resolution passed, that steps should be taken to enforce it, and that the said tribunal should, for such purpose, circulate this my royal cedula, by which I direct all my viceroys, presidents, courts of judicature, commandants general, governors and intendants of the Indies, of the adjacent, and of the Philippine islands, to keep, fulfil, and execute, and cause to be kept, fulfilled, and executed, all that has been enjoined in this my sovereign determination, without transgressing or  [*131]  contravening, or permitting to be transgressed or contravened, its contents in any way; causing it, for that purpose, to be published as an order, not only in the capital cities, but also in the chief towns of jurisdiction of their respective districts, and communicating it likewise, each in his territory, to the tribunals, justices, authorities, and persons, who in any way may be bound to observe it. And this my royal cedula shall be attended to by the accountants' general offices of my said council. Dated, Madrid, the     December, 1817.

Your majesty prohibits for ever all your subjects of the Peninsula, as well as of America, from purchasing negrocs on the coasts of Africa, enacting, that voyages for that purpose may not be undertaken to the coasts north of the equator, after the 22d of November, nor to those south of the equator, after the 30th of May, 1820, under the penalties specified." n1


n1 B. p. 3.

(G.)

PORTUGUESE EDICT.

I, the king, make known to those to whom the present Alvara, having the force and effect of a law, shall come, that as the abolition of the slave trade in the ports of the coast of Africa, north of the equator, established by the ratification  [*132]  of the treaty, dated the 22d of January, 1815, and of the additional convention, dated the 28th of July, 1817, requires the adoption of fresh measures, which, fixing just and adequate penalties that shall attach to offenders, may afford to judges, and other persons charged with the execution of those measures, a standard for deciding upon such cases as shall occur relative to this object, think proper to ordain as follows:

Art. i. All persons, of whatsoever quality or condition, who shall proceed to fit out or prepare vessels for the traffic in slaves, in any part of the coast of Africa lying north of the equator, shall incur the penalty of the loss of the slaves, who shall be declared free, with a destination hereinafterwards mentioned. The vessels engaged in the traffic shall be confiscated, with all their tackle and appurtenances, together with the cargo, of whatever it may consist, which shall be on board on account of the owners or freighters of such vessel, and of the owners of such slaves. The officers of such vessel — to wit, the captain or master, the pilot, and supercargo — shall be banished for five years to Mosambique, and each shall pay a fine equivalent to the pay  [*133]  or other profits which he was to gain by the adventure. Policies of insurance cannot be made on such vessels, or their cargoes; and if they are made, the assurers who shall knowingly make them shall be condemned in triple the amount of the stipulated premium.

Art. ii. All persons, of whatever rank or condition, who shall import slaves into Brazil, in foreign vessels, shall incur the same penalty of the loss of the slaves, who shall become freemen, and be provided for as hereinafter directed.

Art. iii. Informations shall be received relative to all the above cases. And if the vessel and her cargo have been confiscated, half of the whole proceeds of the property, sold by public auction, as well as half of the fines, shall be given to the informer, and the other half shall be paid into my royal treasury, to which the whole produce shall belong, if there be no informer.In case, however, of a vessel having been captured by a ship of war, such vessel and her cargo shall be subject to the provisions specified in the seventh article of the regulations concerning the mixed commission, annexed, under number 3, to the above Convention of July the 28th, 1817. But in case the ship should  [*134]  be captured or confiscated, it shall not be lawful to commence an action for the recovery of such ship and cargo, except within a term not exceeding three years, to reckon from the date of the ship's entrance into the port where she has unloaded; after the expiration of which period, the said action shall be inadmissible and void.

Art. iv. Informations, and all proceedings inclusive of the final sentence and its execution, shall be brought before the judges appointed to try causes respecting contraband goods and embezzlement, in any place or district, whither the slaves have been carried, or before any other magistrate or judge competent to decide on those matters, to whom I deem proper to commit this jurisdiction, as well as the authority requisite for carrying into execution the sentences passed by the mixed commssion, in cases cognizable by the latter, and for trying and determining other cases that may occur, as also those accruing from them, allowing the party to bring an appeal conformably to the ordinance. It shall, however, be lawful for either of the parties to apply to the mixed commission, for them to determine whether or not the case have reference to the abolition;  [*135]  in which event, the proceedings upon it shall be delivered up to the commission in the state in which they are; and whatever the commission may decide, shall be carried into effect.

Art. v. The slaves made over to my royal treasury in the manner specified in the above seventh article of the regulations concerning the mixed commissions, and those declared free by the above articel, (as it would be unjust to abandon them without support,) shall be delivered into the office of the judge of the district, or, where there is none, into that of the judge charged to whtch over the rights of the Indians, whose powers I enlarge with that jurisdiction, to serve as freedmen for fourteen years in any public service of the navy, the fortresses, agriculture, or manual trades, as may be though most convenient, being for that purpose enrolled in the respective stations; or shall be hired out to individuals of known property and probity, who shall be bound to support, clothe, and instruct them, teaching them some handicraft or labour, that may be agreed upon, during the stipulated period; the terms and the conditions of which shall be renewed as often as necessary, till the fourteen years are expired;  [*136]  the time of servitude may be shortened by two or more years, according as the good conduct of these persons may entitle them to the enjoyment of full freedom. In case these freedmen are destined for the public service, the officer who shall have authority in the respective stations to which they are assigned, shall nominate a proper person to fix the period as above mentioned, who shall be responsible for their education and treatment. They shall have as curator a person of known probity, who shall be nominated every three years by the judge, and approved by the judicial council or governor, and captain general of the province.To him it shall belong to provide every thing which may contribute to their well-being, to testify abuses that may affect them, to procure them release after their proper term of service, and enforce generally, for their benefit, the observance of the laws prescribed for the protection of orphans, in as far as those laws are applicable to them, to the end that whatever is ordered concerning them may be strictly executed.

Art. vi. In the ports to the south of the equator, where the traffic in slaves is still permitted, the regulations passed in the law of  [*137]  the 24th of November, 1813, shall be observed, with the following modifications: The distinction between vessels which shall exceed or shall not exceed 201 tons shall be abolished, and the number of slaves shall be regulated according to the tonnage of the vessel, in the proportion of five to every two tons, according to the ancient measure. The prohibition respecting marks made with iron on the body of the slaves, shall not extend to marks imprinted with silver carimbos, which, being excepted, shall be permitted. It shall be allowed to the persons who own or freight slave vessels, to use, indiscriminately, iron or copper kettles, provided the latter every voyage be tinned anew, which shall be ascertained by proper officers visiting those vessels. If surgeons do not sail on board such vessels, on account of the impossibility of procuring them, or for some other reason equally conclusive, the owners shall be obliged to carry with them blank sangradores, experienced in the treatment of the diseases with which the slaves are commonly afficted, and in the remedies proper for curing them; because, in regard to all these objects, experience has evinced the necessity of specifying the  [*138]  provisions set forth in this Alvara, which, under the above modifications, shall be observed in all its details.

Art. vii. Whereas the alteration effected in the slave trade by the restrictions contained in the above treaty and additional convention, requires considerable modifications in the provisions of the former laws enacted on this subject, independent of the last change, which will tend to render many of them void, I think proper to order, that it shall be permitted to import into the ports of Brazil, slaves from any ports where this traffic is not prohibited, and that the freight shall continue to be settled by the parties.

The present injunctions shall be strictly complied with; wherefore I direct the Tribunal of the Privy Council, of Conscience and of Orders; the President of my Royal Exchequer; the Council of my Royal Treasury; the Chief Justice of the Supreme Court of Appeal in Brazil; the President of the Tribunal of Bahia; the Governors and Captains General; and the other Governors of Brazil, and of my dominions beyond sea; also all the Ministers of Justice, and other persons whom the present Alvara may concern, to comply with and observe the same, notwithstanding  [*139]  any decision that may be at variance with it, and which I rescind for this end only; and it shall have the force and effect of a letter issued by the Chancellery, though it be not actually issued by the same, and though its validity extend beyond a year, notwithstanding the law to the contrary. Given at the palace of Rio de Janeiro, the 26th of January, 1818."

(C.)

Cases referred to in the argument of the Antelope.

THE AMEDIE, 1 Action's Rep. 240.

This was an American vessel, captured by a British cruiser, in the latter part of the year 1807, on her way from Bonny, on the coast of Africa, to Matanzas, in the island of Cuba, with 105 slaves on board. She was libelled in the Vice-Admiralty Court of Tortola, and condemned as engaged in an illegal trade. From this sentence an appeal was prosecuted to the High Court of Appeals.

The first reason assigned by the captors for the condemnation of this vessel was, that "this ship was proceeding from Africa, with a cargo there laden, to Matanzas, in the island of Cuba, being a part of a colony then belonging to his majesty's enemies, contrary to the prohibitions of the order of his majesty in council, of the 11th day of November, 1807."  [*140] 

The second reason assigned was, that "the voyage was contrary to the prohibitory laws of the United States of America, made for abolishing the slave trade, which had been officially notified to the Lords of Appeal by the act of the American government in the case of the Chance, Brown, master; and although such laws of a foreign state may not amount to a direct or substantive ground of condemnation in a Court of Prize, yet they may and ought to exclude an American claimant from the benefit of those relaxations of the law of war which, in favour of neutral states, have been introduced by his majesty's instructions, in regard to their commerce with the colonies of his majesty's enemies; a privilege which can only be understood to be granted to neutral governments as a branch of their national commerce, and not as an invitation to lawless individuals to engage in a trade which the neutral state itself has prohibited, and desires to discourage."

The third ground of condemnation assigned by the captors was, "that Scott, the supercargo and lader of the slaves, is admitted to have an interest therein, which is liable to confiscation, he being a British subject, by the statute of 46 Geo.  [*141]  III. cap. 52."

JUDGMENT. Sir Wm. Grant. In the case of the Amedie, it must be considered, on the evidence produced to the Court, and from the situation of this vessel at the time of capture, that she was employed in carrying slaves from the coast of Africa to a Spanish colony. We are of opinion this appears to have been the original design and purpose of the voyage, notwithstanding the pretence set up to veil the real intention of the proprietor.The American claimant, however, complains of the injury and interruption he has sustained in carrying on his usual and lawful trade, that of importing slaves for the purpose of sale, and calls upon the Prize Court to redress the grievance, and repair the damage he has sustained by the capture and unjust detention of this vessel.

On the different occasions when cases of this description formerly came before the Court, the slave trade was liable to considerations very different from those which now belong to it. So far as respected the transportation of slaves to the colonies of foreign nations, this trade had been prohibited by the laws of America only; this country had taken no notice of that prohibition; our law sanctioned the trade,  [*142]  which it was the policy of the American law first to restrict, and finally to abolish. It appeared to us, therefore, difficult to consider the prohibitory law of America in any other light than as one of those municipal regulations of a foreign state, of which this Court could not take any cognizance, and of course could not be called upon to enforce; nor could it possibly bar a party in a Court of Prize. But by the alteration which has since taken place in our law, the question stands now upon very different grounds. We do now, and did at the time of this capture, take an interest in preventing that traffic in which this ship was engaged. The slave trade has since been totally abolished in this country, and our legislature has declared the African slave trade is contrary to the principles of justice and humanity. Whatever opinions, as private individuals, we before might have entertained upon the nature of this trade, no Court of justice could with propriety have assumed such a position as the basis of any of its decisions, whilst it was permitted by our own laws; but we do now lay down as a principle, that this is a trade which cannot, abstractedly speaking, be said to have  [*143]  a legitimate existence; I say abstractedly speaking, because we cannot legislate for other countries; nor has this country a right to control any foreign legislature that may think proper to dissent from this doctrine, and give permission to its subjects to prosecute this trade. We cannot, certainly, compel the subjects of other nations to observe any other than the first and generally received principles of universal law. But thus far we are now entitled to act, according to our law, and to hold that, prima facie, the trade is altogether illegal, and thus to throw on a claimant the whole burden of proof, in order to show, that by the particular law of his own country he is entitled to carry on this traffic. As the case now stands, we think that no claimant can be heard in an application to a Court of Prize for the restoration of the human beings he carried unjustly to another country, for the purpose of disposing of them as slaves. The consequence of making such proof is not now necessary to determine; but where it cannot be made, the party must be considered to have failed in establishing his asserted right. We are of opinion, upon the whole, that persons engaged in such a trade  [*144]  cannot, upon principles of universal law, have a right to be heard upon a claim of this nature in any Court. In the present case, the claimant does not bring himself within the protection of the law of his own country; he appears to have been acting in direct violation of that law, which admits of no right of property such as he claims; ours is express and satisfactory upon the subject.

Where, therefore, there is no right established to carry on this trade, no claim to restitution of this property can be admitted. We are hence of opinion the sentence of the Court below was valid, and ought to be affirmed.

THE FORTUNA. 1 Dodson's Rep. 81.

This was the case of a vessel bearing the Portuguese flag, captured by a British cruiser, in October, 1810, and sent into Plymouth as prize.

It appeared in evidence, that she sailed from New-York, under American colours, in the month of July, 1810; and ostensibly owned by an American citizen; that she went to Madeira, landed a part of her cargo, and, about a week before her departure from thence, a bill of sale of the ship was executed to a native of Madeira, a Portuguese subject; and, in consequence of this sale, Portuguese papers obtained,  [*145]  and the Portuguese flag assumed. It appeared, from an inspection of the vessel, and other evidence in the case, that the object of the voyage was to procure a cargo of slaves on the coast of Africa.

JUDGMENT. Sir William Scott. "An American ship, quasi American, is entitled, upon proof, to immediate restitution; but she may forfeit, as other neutral ships may, that title, by various acts of misconduct, by violation of belligerent rights most clearly and universally. But though this prize law looks primarily to violations of belligerent rights as grounds of confiscation in vessels not actually belonging to the enemy, it has extended itself a good deal beyond considerations of that description only. It has been established, by recent decisions of the Supreme Court, that the Court of Prize, though properly a Court purely of the law of nations, has a right to notice the municipal law of this country in the case of a British vessel, which, in the course of a prize proceeding, appears to have been trading in violation of that law, and to reject a claim for her on that account. That principle has been incorporated into the prize law of this country within the last twenty years, and  [*146]  seems now fully incorporated. A late decision, in the case of the Amedie, seems to have gone the length of establishing a principle, that any trade contrary to the general law of nations, although not tending to, or accompanied with, any infraction of the belligerent rights of that country, whose tribunals are called upon to consider it, may subject the vessel employed in that trade to confiscation. The Amedie was an American ship, employed in carrying on the slave trade; a trade which this country, since its own abandonment of it, has deemed repugnant to the law of nations, to justice and humanity, though without presuming so to consider and treat it, where it occurs in the practice of the subjects of a state which continues to tolerate and protect it by its own municipal regulations; but it puts upon the parties who are found in the occupations of that trade, the burthen of showing that it was so tolerated and protected; and, on failure of producing such proof, proceeds to condemnation, as it did in the case of that vessel. How far that judgment has been universally concurred in and approved, is not for me to inquire. If there be those who disapprove it, I am certainly not at  [*147]  liberty to include myself in that number, because the decisions of that Court bind authoritatively the judicial conscience of this; its decisions must be conformed to, and its principles practically adopted. The principle laid down in that case appears to be, that the slave trade, carried on by a vessel belonging to a subject of the United States, is a trade which, being unprotected by the domestic regulations of their legislature and government, subjects the vessel engaged in it to a sentence of condemnation. If the ship should, therefore, turn out to be an American actually so employed; and it matters not, in my opinion, in what stage of the employment, whether in the inception or the consummation of it; the case of the Amedie will bind the conscience of this Court to the effect of compelling it to pronounce a sentence of confiscation."

"I can have no rational doubt of her (the Fortuna's) real character; and, under the authority of the case of the Amedie, I condemn her and her cargo."

The DONNA MARIANNA. 1 Dodson's Rep. 91.

This was the case of a vessel seized as she was proceeding to Cape Coast for a cargo of slaves, under the Portuguese flag. It appeared in evidence, that  [*148]  she was originally an American vessel, had been bona fide sold to a British subject, and was now claimed as Portuguese property, on the ground that she had been since conveyed to a Portuguese merchant. The Court condemned the ship, as being a British vessel engaged in the slave trade.

Sir William Scott. "It would be a monstrous thing, where a ship, admitted to have been at one time British property, is found engaging in this traffic, to say, that, however imperfect the documentary evidence of the asserted transfer may be, and however startling the other circumstances of the case, no inquiry shall be made into the real ownership. Here are on board this vessel only papers of mere form, and which are in contradiction with each other, leaving the whole transaction of the transfer in great doubt and obscurity; and if the Court were to be prohibited, under such circumstances, from inquiry into the reality of the Portuguese title, one sees how easily the provisions of the legislature would be defeated."

"I can have no doubt that this Court is bound judicially to consider this as a British vessel, and that this Portuguese disguise has been assumed for the mere purpose of protecting the  [*149]  property of British merchants in a traffic which it was not lawful for them to engage in."

The DIANA. 1 Dodson's Rep. 95.

This was the case of a vessel, under Swedish colours, seized at Cape Mount, on the coast of Africa, on the 10th of September, 1810, by a British cruiser, and carried to Sierra Leone, where proceedings were instituted against the vessel and cargo. At the time of the seizure she had exchanged her outward cargo for 120 slaves, part of which she had received on board. An information was filed on the part of the captors, and a claim made for the ship and cargo, as the property of a subject of the King of Sweden. The vessel and cargo were condemned in the Vice-Admiralty Court at Sierra Leone, from which an appeal was prosecuted to the High Court of Admiralty.

The condemnation also took place on a principle which this Court cannot in any manner recognise, inasmuch as the sentence affirms, "that the slave trade, from motives of humanity, hath been abolished by most civilized nations, and is not at the present time legally authorized by any." This appears to me to be an assertion by no means sustainable. This Court is disposed to go as far in discountenancing this  [*150]  odious traffic, as the law of nations, and the principles recognised by English tribunals, will warrant it in doing, but beyond these principles it does not feel itself at liberty to travel. It cannot proceed on a sweeping anathema of this kind against property belonging to the subjects of foreign independent states.The position laid down in the sentence of the Court below, that the slave trade is not authorized by any civilized state, is, unfortunately, by no means correct, the contrary being notoriously the fact, that it is tolerated by some of them. This trade was at one time, we know, universally allowed by the different nations of Europe, and carried on by them to a greater or less extent, according to their respective necessities. Sweden, having but small colonial possessions, did not engage very deeply in the traffic, but she entered into it so far as her convenience required for the supply of her own colonies.The trade, which was generally allowed, has been since abolished by some particular countries; but I am yet to learn that Sweden n1 has prohibited its subjects from engaging in the traffic, or that she has abstained from it either in act or declaration. Our own country,  [*151]  it is true, has taken a more correct view of the subject, and has decreed the abolition of the slave trade, as far as British subjects are concerned; but it claims no right of enforcing its prohibition against the subjects of those states which have not adopted the same opinion with respect to the injustice and immorality of the trade.


n1 The treaty of concert and subsidy between his majesty and the King of Sweden, which was signed at Stockholm on the 3d of March, 1813, has been made public since the date of this judgment. By an article of this treaty, the King of Sweden engages "to forbid and prohibit, at the period of the cession of Guadaloupe, the introduction of slaves from Africa into the said island, and the other possessions in the West Indies of his Swedish majesty, and not to permit Swedish subjects to engage in the slave trade; an engagement which (it is said) his Swedish majesty is the more willing to contract, as this traffic has never been authorized by him," though it had never been prohibited, and, therefore, had been tolerated in practice upon the principles then generally received.

The principle which has been extracted by the Judge of the Court below from the  [*152]  case of the Amedie, is the reverse of the real principle there laid down by the Superior Court, which was, that where the municipal laws of the country to which the parties belong have prohibited the trade, the tribunals of this country will hold it to be illegal, upon the general principles of justice and humanity, and refuse restitution of the property; but, on the other hand, though they consider the trade to be generally contrary to the principles of justice and humanity, where not tolerated by the laws of the country, they will respect the property of persons engaged in it under the sanction of the laws of their own country. The lords of appeal did not mean to set themselves up as legislators for the whole world, or presume in any manner to interfere with the commercial regulations of other states, or to lay down general principles that were to overthrow their legislative provisions with respect to the conduct of their own subjects. It is highly fit that the Judge of the Court below should be corrected in the view which he has taken of this matter, since the doctrine laid down by him in this sentence is inconsistent with the peace of this country and the rights of other states.  [*153] 

The proceedings in this Court. as of appeal, have been commenced and carried on by both parties in the manner in which instance causes are usually conducted. A libel has been brought on the one side, to which a negative issue has been given on the other. Objections, however, have been taken to the jurisdiction, upon two grounds. In the first place it has been said, that the sentence of the Court below, condemning the property to the crown, was a prize sentence, and, consequently, that the appeal ought to have been made to the Privy Council, and not to the Instance Court of Admiralty, which is a mere municipal tribunal.It has likewise been said, that, supposing this Court to be possessed of an appellate jurisdiction, still it has no jurisdiction over the question itself, which depends altogether upon the jus gentium. But I think the proceedings of the parties have sufficiently founded the jurisdiction in the cause; and I am by no means clear that a Court of civil jurisdiction might not otherwise have adjudicated on a question of this kind, and have excluded a claim asserted to be founded on principles contrary to general justice. The general injustice of a claim may be the subject  [*154]  of cognizance in a municipal Court; a claim founded on piracy, or any other act which, in the general estimation of mankind, is held to be illegal and immoral, might, I presume, be rejected in any Court upon that ground alone. I am of opinion, therefore, that neither of the objections which have been taken are founded. After issue has been given here by the captors, as in an Instance Court, they cannot object to the competency of the Court to entertain the question; and I am by no means willing to put the parties to the expense and inconvenience of commencing proceedings de novo before another tribunal.

On the part of the appellants it is, I think, sufficiently established in evidence, that the ship and cargo are Swedish property; whilst, on the other side, there is nothing but a general suggestion that they may belong to American citizens. It may, perhaps, be true, that persons of that country have dishonestly engaged themselves in this traffic under colour of the Swedish flag, and the island of St. Bartholomew may be a convenient resort for such an illegal purpose; but there is nothing in this particular case which can lead to a grave suspicion, much less to a legal conclusion,  [*155]  that this ship is not bonae fide the property of Swedish subjects.

The question, then, is, whether the slave trade is permitted by the law of Sweden? I have before stated, that this trade was, till of late years, generally allowed by the tastes of Europe, when, from motives of humanity, some of them were induced to abolish it, as far as their own subjects were concerned. It does not appear that any thing has been done by Sweden in the way of abjuring it, much less that she has issued any positive declaration to that effect. The Court is certainly inclined to hold, that it lies on the individual making the claim to show that the law of his country countenances the trade; but in this particular instance, that demand appears to be satisfied; sufficiently, at least, to throw on the other party the onus of proving that it is not so allowed. The endorsement upon the pass, signed by the Swedish governor, that this vessel was "bound to the coast of Guinea, for slaves," raises a presumption of the legality of the trade, and shifts the burthen of proof from the claimant to the captor. It is not necessary that there should be an immediate act of the Swedish government itself on board, declaring  [*156]  what the precise state of the law may be; the Court is bound to accept the declaration and authority of the governor, as it appears upon the pass, if not contradicted. I do not find that the authenticity of this pass is at all denied by the Judge of the Court below; he goes on the broad and sweeping ground, that all dealing in slaves is unlawful, because the trade is not authorized by any civilized state, which is certainly an incorrect and erroneous statement.If the captors had it in their power to prove that Sweden had abolished this trade, they should now have produced that proof; for they must have been aware, that the sentence of the Judge could never be supported on the principles stated by him in his judgment. The sanction of the colonial governor has been produced by the claimants; and I am clearly of opinion, under this authority standing before me, and standing uncontradicted, that Sweden has not abolished the slave trade.

The King's Advocate. From private information, I understand that Sweden never, at any time, engaged in this trade.

Court. Have you any documents to produce by which that fact can be made to appear? Can I presume, that the Swedish governor, who granted  [*157]  this pass, was acting contrary to the laws of his own country? It is impossible for me, upon mere private information, to say that such was the fact. If any thing can be produced in the way of evidence, it must be offered to the Court before which this case may be carried on appeal. With every disposition to sustain the disinclination which has of late been justly shown to the slave trade, I feel myself under a necessity of reversing this sentence, which appears to be founded on a false and dangerous principle, inconsistent with the rights of independent states, and, consequently, with the peace and safety of this country.

The only remaining point is, respecting these few Portuguese slaves which were found on board the ship. It appears that they belong to the master of a Portuguese schooner, which had been lying at Cape Mount, but was driven to sea by stress of weather, whilst he was on shore, and that himself and his slaves had been taken on board this ship out of charity. In the absence of all proof, I shall not presume that he had been acting in opposition to the laws of his own country, and the treaty relative to the slave trade between Great Britain and Portugal. Sentence  [*158]  reversed.

MADRAZO v. WILLES. 5 Sergt. & Lowb. 313.

A foreigner, who is not prohibited from carrying on the slave trade by the laws of his own country, may, in a British court of justice, recover damages sustained by him in respect of the wrongful seizure, by a British subject, of a cargo of slaves on board of a ship then employed by him in carrying on the African slave trade.

The declaration stated, that the plaintiff was a subject of the King of Spain, and that on the 12th of July, 1817, at Havana, in the island of Cuba, he was lawfully possessed of a certain brig, called, &c., and continued so possessed until the committing of the trespasses after mentioned, to wit, at, &c.; and that the said brig was, to wit, on, &c., lawfully cleared out for a certain voyage in the slave trade, to wit, from Havana to the coast of Africa, and back; and that, on the 16th of January, 1818, on the high seas, to wit, off Cape St. Paul's, on the coast of Africa, defendant, with force and arms, seized the said brig, together with her stores, &c., and 300 slaves, and also divers goods, &c., on board of the said brig, and kept and detained them for a long time, and converted and disposed of the slaves,  [*159]  goods, &c. to his own use; by means whereof the said brig was prevented from further prosecuting the said voyage, and the plaintiff deprived of great gains, which would have accrued from the slaves and goods, and from taking on board other slaves and other goods, and from carrying them to the island of Cuba: plea not guilty. At the trial at the last London sittings after Michaelmas term, it appeared that the defendant, who was a captain in the royal navy, had, on the 16th of January, 1818, off Cape St. Paul's, unlawfully taken possession of the ship of the plaintiff, a Spanish merchant, which was engaged in the slave-trade on the coast of Africa. The only question which arose, was as to the amount of damages.It occurred to the Lord Chief Justice at the trial, that the plaintiff was not entitled to recover the value of the slaves in an English Court of justice; and accordingly, he desired the jury to find their verdict separately for each part of the damage, giving to the defendant liberty to move to reduce the verdict to the smaller sum, in case the Court should agree with him on the point. The jury found a verdict for the plaintiff, damages 21,180l.; being for the deterioration  [*160]  of the ship's stores and goods, 3,000l., and for the supposed profit of the cargo of slaves, 18,180l. And now,

Jervis moved for a rule nisi to reduce the damages to 3,000 pounds. By the 47 Geo. III. c. 36. the slave trade, and all dealings connected with it, were declared unlawful. It follows, therefore, as a consequence, that no one can be allowed to recover damages in respect of a cargo of slaves. And the 51 Geo. III. c. 23. goes still further; for it declares that trade to be contrary to the principles of justice, humanity, and sound policy. Now, it being the duty of English Courts of justice to be guided by those principles, no one, whether he be a foreigner or an Englishman, can be permitted there to claim any compensation in respect of such a traffic. The 58 Geo. III. c. 36. is, indeed, relied on by the other side; but that act, which was passed with a view of carrying into effect a treaty with Spain on this subject, ought not to affect the present question. Indeed, the fourth article of the treaty is strongly in favour of the defendant; for it provides, that the British government shall make compensation, out of a sum provided by parliament to Spanish merchants, for the  [*161]  seizure of their ships, which would seem to prove that, independently of that, such merchants had no other remedy.

ABBOTT, C. J. On further consideration, it appears to me that there is no sufficient ground for reducing this verdict to the smallest sum found by the jury. Considering the very extensive language used in the two acts of parliament to which we have been referred, I had at first thought that it was not competent, even for a foreigner, to come into an English Court of justice, and there to recover damages for a loss sustained by him in the prosecution of a trade declared by the British legislature, in such strong language, to be unlawful. It was with that view that I directed the jury to separate the damages in this case; for it occurred to me, that though the plaintiff might not be entitled to recover for the slaves, still, inasmuch as, at all events, the defendant ought to have taken away the slaves promptly, if at all, the subsequent detention of the ship was an injury, for which the plaintiff was entitled to compensation. But I am now satisfied that the words used by the legislature, although large and extensive, can only be taken to be applicable to British subjects.  [*162]  By the 58 Geo. III. c. 36. it appears that a treaty had been made with Spain, for the prohibition of an important branch of the trade; and that, with regard to the remainder, special provisions had been made, and a special Court constituted for the purpose of settling the disputes which might occur. Now that shows most strongly, that but for such a treaty, the trade would have been perfectly legal in a Spaniard; and the 10th section of that act, by which a certain sum is provided, as a full compensation for all losses sustained in consequence of the seizure of vessels previously to the ratification of that treaty, seems to me to corroborate most strongly this view of the subject; for it enables the parties sued to plead that clause in bar of the action, which would obviously have been unnecessary, if under the previous acts no action could have been maintained at all. This clause, therefore, seems to me to be a legislative recognition of a foreigner's right of suit. And by the 1uth and 12th sections it is provided, that all suits commenced in the Courts of Admiralty shall proceed, if commenced; and that the damages, &c. when recovered, shall be paid to the government of this country.  [*163]  All these clauses, taken together, appear to me to show, that what occurred to me at nisi prius, was not a sound exposition of the law. I am therefore of opinion, that the verdict for the larger sum found by the jury is right, and that we ought to refuse this rule.

BAYLEY, J. I do not think that there is sufficient doubt in this case, to induce us to grant a rule. A British Court of justice is always open to the subjects of all countries in amity with us, and they are entitled to compensation for any wrongful act done by a British subject to them. It is no answer to the present action to say, that it would not be maintainable by a British subject; for the only questions are, whether the act of the defendant be wrongful, and what injury the plaintiff has sustained from it? Although the language used by the legislature in the statute referred to, is undoubtedly very strong, yet it can only apply to British subjects, and can only render the slave trade unlawful if carried on by them; it cannot apply, in any way, to a foreigner. It is true, that if this were a trade contrary to the law of nations, a foreigner could not maintain this action. But it is not; and as a Spaniard cannot  [*164]  be considered as bound by the acts of the British legislature prohibiting this trade, it would be unjust to deprive him of a remedy for the wrong which he has sustained. He had a legal property in the slaves, of which he has, by the defendant's act, been deprived. The 58 Geo. III. c. 36. proceeds on this principle; and the provisions referred to by my Lord Chief Justice, seem to me to be conclusive on the subject. I think, therefore, that we ought not to disturb this verdict.

HOLROYD, J. However much I may regret that any damages canbe recoverable for such a subject as this, yet I think we are bound to say, that this plaintiff is entitled to them. I agree with the construction which has been put on the 58 Geo. III. c. 36.; and I think, that even independently of that act, the action would have been maintainable for the loss of the slaves.

BEST, J. The statutes which have been referred to, speak in just terms of indignation of the horrible traffic in human beings; but they speak only in the name of the British nation.The declaration of the British legislature, that the slave trade is contraly to justice and humanity, cannot affect the subjects of other countries, or prevent  [*165]  them from carrying on this trade out of the limits of the British dominlons. The assertion of a right to control the subjects of other states in this respect, would be inconsistent with that independence which we acknowledge that every foreign government possesses. If a ship be acting contrary to the general law of nations, she is thereby subject to confiscation; but it is impossible to say that the slave trade is contrary to what may be called the common law of nations. It was, until lately, carried on by all the nations of Europe. A practice so sanctioned can only be rendered illegal by the consent of all the powers. Most of the states of Christendom have now consented to the abolition of the slave trade, and concurred with us in declaring it to be unjust and inhuman. The subjects of any of these states could not, I think, maintain an action in the Courts of this country for any injury happening to them in the prosecution of this trade; but Spain has reserved to herself a right of carrying it on in that part of the world where this transaction occurred. Her subjects could not legally be interrupted in buying slaves in that part of the globe, and have a right to appeal to the  [*166]  justice of this country for any injury sustained by them from such an interruption. These principles are confirmed by the decisions of the Court of Admiralty, and also by a judgment of Sir William Grant, pronounced at the Cockpit. The cases to which I allude, are, the Fortuna, the Donna Marianna, and the Diana, in the Admiralty Court; and the Amedie, before the privy council. (Dodson's Ad. Rep. 81 91. 95.) These cases establish this rule, that ships which belong to countries that have prohibited the slave trade, are liable to capture and condemnation, if found employed in such trade; but that the subjects of countries which permit the prosecution of this trade, cannot be interrupted while carrying it on. It is clear, from these authorities, that the slave trade is not condemned by the general law of nations. The subjects of Spain have only to look to the municipal laws of their own country, and cannot be affected by any laws made by our government. The rule for reducing the damages, in this case, must therefore be refused.

Rule refused.

OPINIONBY:   MARSHALL

OPINION:   Mr. Justice MARSHALL delivered the opinion of the Court, and, after stating the case, proceeded  [*167]  as follows:

In prosecuting this appeal, the United States assert no property in themselves. They appear in the character of guardians, or next friends, of these Africans, who are brought, without any act of their own, into the bosom of our country, insist on their right to freedom, and submit their claim to the laws of the land, and to the tribunals of the nation.

The Consuls 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 subjects of their respective sovereigns, and claim their restitution under the laws of the United States.

In examining claims of this momentous importance; claims in which the sacred rights of liberty and of property come in conflict with each other; which have drawn from the bar a degree of talent and of eloquence, worthy of the questions that have been discussed; this Court must not yield to feelings which might seduce it from the path of duty, and must obey the mandate of the law.

That the course of opinion on the slave trade should be unsettled, ought to excite no surprise. The Christian and civilized nations of the world, with whom  [*168]  we have most intercourse, have all been engaged in it. However abhorrent this traffic may be to a mind whose original feelings are not blunted by familiarity with the practice, it has been sanctioned in modern times by the laws of all nations who possess distant colonies, each of whom has engaged in it as a common commercial business which no other could rightfully interrupt. It has claimed all the sanction which could be derived from long usage, and general acquiescence. That trade could not be considered as contrary to the law of nations which was authorized and protected by the laws of all commercial nations; the right to carry on which was claimed by each, and allowed by each.

The course of unexamined opinion, which was founded on this inveterate usage, received its first check in America; and, as soon as these States acquired the right of self-government, the traffic was forbidden by most of them. In the beginning of this century, several humane and enlightened individuals of Great Britain devoted themselves to the cause of the Africans; and, by frequent appeals to the nation, in which the enormity of this commerce was unveiled, and exposed to the public eye, the general  [*169]  sentiment was at length roused against it, and the feelings of justice and humanity, regaining their long lost ascendency, prevailed so far in the British parliament as to obtain an act for its abolition. The utmost efforts of the British government, as well as of that of the United States, have since been assiduously employed in its suppression. It has been denounced by both in terms of great severity, and those concerned in it are subjected to the heaviest penalties which law can inflict. In addition to these measures operating on their own people, they have used all their influence to bring other nations into the same system, and to interdict this trade by the consent of all.

Public sentiment has, in both countries, kept pace with the measures of government; and the opinion is extensively, if not universally entertained, that this unnatural traffic ought to be suppressed. While its illegality is asserted by some governments, but not admitted by all; while the detestation in which it is held is growing daily, and even those nations who tolerate it in fact, almost disavow their own conduct, and rather connive, at, than legalize, the acts of their subjects; it is not  [*170]  wonderful that public feeling should march somewhat in advance of strict law, and that opposite opinions should be entertained on the precise cases in which our own laws may control and limit the practice of others. Indeed, we ought not to be surprised, if, on this novel series of cases, even Courts of justice should, in some instances, have carried the principle of suppression farther than a more deliberate consideration of the subject would justify.

The Amedie, (1 Acton's Rep. 240.) which was an American vessel employed in the African trade, was captured a British cruiser, and condemned in the Vice Admiralty Court of Tortola. An appeal was prayed; and Sir William Grant, in delivering the opinion of the Court, said, that the trade being then declared unjust and unlawful by Great Britain, "a claimant could have no right, upon principles of universal law, to claim restitution in a prize Court, of human beings carried as his slaves. He must show some right that has been violated by the capture, and to which he which he has been dispossessed, and to which he ought to be restored. In this case, the laws of the claimant's country allow of no right of property such as he  [*171]  claims. There can, therefore, be no right of restitution. The consequence is, that the judgment must be affirmed."

The Fortuna (1 Dodson's Rep. 81.) was condemned on the authority of the Amedie, and the same principle was again affirmed.

The Diana (1 Dodson's Rep. 95.) was a Swedish vessel, captured with a cargo of slaves, by a British cruiser, and condemned in the Court of Vice Admiralty at Sierra Leone. This sentence was reversed on appeal, and Sir William Scott, in pronouncing the sentence of reversal, said, "the condemnation also took place on a principle which this Court cannot in any manner recognise, inasmuch as the sentence affirms, 'that the slave trade, from motives of humanity, hath been abolished by most civilized nations, and is not, at the present time, legally authorized by any.' This appears to me to be an assertion by no means sustainable." The ship and cargo were restored, on the principle that the trade was allowed by the laws of Sweden.

The principle common to these cases is, that the legality of the capture of a vessel engaged in the slave trade, depends on the law of the country to which the vessel belongs. If that law gives its  [*172]  sanction to the trade, restitution will be decreed; if that law prohibits it, the vessel and cargo will be condemned as good prize.

This whole subject came on afterwards to be consdiered in the Louis, (2 Dodson's Rep. 238.) The opinion of Sir William Scott, in that case, demonstrates the attention he had bestowed upon it, and gives full assurance that it may be considered as settling the law in the British Courts of Admiralty as far as it goes.

The Louis was a French vessel, captured on a slaving voyage, before she had purchased any slaves, brought into Sierra Leone, and condemned by the Vice Admiralty Court at that place. On an appeal to the Court of Admiralty in England, the sentence was reversed.

In the very full and elaborate opinion given on this case, Sir William Scott, in explicit terms, lays down the broad principle, that the right of search is confined to a state of war. It is a right strictly belligerent in its character, which can never be exercised by a nation at peace, except against professed pirates, who are the enemies of the human race. The act of trading in slaves, however detestable, was not, he said, "the act of freebooters, enemies of the human race, renouncing  [*173]  every country, and ravaging every country, in its coasts and vessels, indiscriminately." It was not piracy.

He also said, that this trade could not be pronounced contrary to the law of nations. "A Court, in the administration of law, cannot attribute criminality to an act where the law imputes none. It must look to the legal standard of morality; and, upon a question of this nature, that standard must be found in the law of nations, as fixed and evidence by general, and ancient, and admitted practice, by treaties, and by the general tneor of the laws and ordinances, and the formal transactions of civilized states; and, looking to those authorities, he found a difficulty in maintaining that the transaction was legally criminal."

The right of visitation and search being strictly a belligerent right, and the slave trade being neither piratical, nor contrary to the law of nations, the principle is asserted and maintained with great strength of reasoning, that it cannot be exercised on the vessels of a foreign power, unless pemitted by treaty. France had refused to assent to the insertion of such article in her treaty with Great Britain, and, consequently, the right could  [*174]  not be exercised on the high seas by a British cruiser on a French vessel.

"It is pressed as a difficulty," says the Judge, "what is to be done, if a French ship, laden with slaves, is brought in? I answer, without hesitation, restore the possession which has been unlawfully devested; rescind the illegal act done by your own subject, and leave the foreigner to the justice of his own country."

This reasoning goes far in support of the propsition, that, in the British Courts of admiralty, the vessel even of a nation which had forbidden the slave trade, but had not conceded the right of search, must, if wrongfully brought in, be restored to the original owner. But the Judge goes farther, and shows, that no evidence existed to prove that France had, by law, forbidden that trade.Consequently, for this reason, as well as for that previously assigned, the sentence of condemnation was reversed, and restitution awarded.

In the United States, different opinions have been entertained in the different Circuits and Districts; and the subject is now, for the first time, before this Court.

The question, whether the slave trade is prohibited by the law of nations has been seriously  [*175]  propounded, and both the affirmative and negative of the proposition have been maintained with equal earnestness.

That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labour, is generally admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of this admission. But from the earliest times war has existed, and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of these was, that the victor might enslave the vanquished. This, which was the usage of all, could not be pronounced repugnant to the law of nations, which is certainly to be tried by the test of neral usage. That which has received the assent of all, must be the law of all.

Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent, cannot be pronounced unlawful.

Throughout Christendom, this harsh rule has been exploded, and war is no longer considered as giving a right to enslave  [*176]  captives. But this triumph of humanity has not been universal. The parties to the modern law of nations do not propagate their principles by force; and Africa has not yet adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves. Can those who have themselves renounced this law, be permitted to participate in its effects by purchasing the beings who are its victims?

Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution, in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself as a part, and to whose law the appeal is made.If we resort to this standard as the test of international law, the question, as has already been observed, is decided in favour of the legality of the trade. Both Europe and America embarked in it; and for nearly two centuries, it was carried on without opposition, and without censure. A jurist could not say, that a practice thus supported was illegal, and that those engaged in  [*177]  it might be punished, either personally, or by deprivation of property.

In this commerce, thus sanctioned by universal assent, every nation has an equal right to engage. How is this right to be lost? Each may renounce it for its own people; but can this renunciation affect others?

No principle of general law is more universally acknowledged, than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality, that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which is vested in all by the consent of all, can be devested only be consent; and this trade, in which all have participated, must remain lawful to those who cannot be induced to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations; and this traffic remains lawful to those whose governments have not forbidden it.

If it is consistent with the law of nations, it cannot in itself be piracy. It can be made so only by statute; and the obligation of the statute cannot transcend the legislative power of the state which may enact it.

If it be neither repugnant  [*178]  to the law of nations, nor piracy, it is almost superfluous to say in this Court, that the right of bringing in for adjudication in time of peace, even where the vessel belongs to a nation which has prohibited the trade, cannot exist. The Courts of no country execute the penal laws of another; and the course of the American government on the subject of visitation and search, would decide any case in which that right had been exercised by an American cruiser, on the vessel of a foreign nation, not violating our municipal laws, against the captors.

It follows, that a foreign vessel engaged in the African slave trade, captured on the high seas in time of peace, by an American cruiser, and brought in for adjudication, would be restored.

The general question being disposed of, it remains to examine the circumstances of the particular case.

The Antelope, a vessel unquestionably belonging to Spanish subjects, was captured while receiving a cargo of Africans on the coast of Africa, by the Arraganta, a privateer which was manned in Baltimore, and is said to have been then other vessels, said to be Portuguese, engaged in the same traffic, were previously plundered, and the slaves  [*179]  taken from them, as well as from another vessel then in the same port, were put on board the Antelope, of which vessel the Arraganta took possession, landed her crew, and put on board a prize master and prize crew. Both vessels proceeded to the coast of Brazil, where the Arraganta was wrecked, and her captain and crew either lost or made prisoners.

The Antelope, whose name was changed to the General Ramirez, after an ineffectual attempt to seel the Africans on board at Surinam, arrived off the coast of Florida, and was hovering on that coast, near that of the United States, for several days. Supposing her to be a pirate, or a vessel wishing to smuggle slaves into the United States, Captain Jackson, of the revenue cutter Dallas, went in quest of her, and finding her laden with slaves, commanded by officers who were citizens of the United States, with a crew who spoke English, brought her in for adjudication.

She was libelled by the Vice Consuls of Spain and Portugal, each of whom claim that portion of the slaves which were conjectured to belong to the subjects of their respective sovereigns; which claims are opposed by the United States on behalf of the Africans.

In  [*180]  the argument, the question on whom the onus probandi is imposed, has been considered as of great importance, and the testimony adduced by the parties has been critically examined: It is contended, that the Antelope, having been wrongfully dispossessed of her slaves by American citizens, and being now, together with her cargo, in the power of the United States, ought to be restored, without farther inquiry, to those out of whose possession she was thus wrongfully taken. No proof of property, it is said, ought to be required. Possession is in such a case evidence of property.

Conceding this as a general proposition, the counsel for the United States deny its application to this case. A distinction is taken between men, who are generally free, and goods, which are always property. Although, with respect to the last, possession may constitute the only proof of property which is demandable, something more is necessary where men are claimed. Some proof should be exhibited that the possession was legally acquired. A distinction has been also drawn between Africans unlawfully taken from the subjects of a foreign power by persons acting under the authority of the United States,  [*181]  and Africans first captured by a belligerent privateer, or by a pirate, and then brought rightfully into the United States, under a reasonable apprehension that a violation of their laws was intended. Being rightfully in the possession of an American Court, that Court, it is contended, must be governed by the laws of its own country; and the condition of these Africans must depend on the laws of the United States, not on the laws of Spain and Portugal.

Had the Arraganta been a reguarly commissioned cruiser, which had committed no infraction of the neutrality of the United States, her capture of the Antelope must have been considered as lawful, and no question could have arisen respecting the rights of the original claimants. The question of prize or no prize belongs solely to the Courts of the captor. But, having violated the neutrality of the United States, and having entered our ports, not voluntarily, but under coercion, some difficulty exists respecting the extent of the obligation to restore, on the mere proof of former possession, which is imposed on this government.

If, as is charged in the libels of both the Consuls, as well as of the United States, she was  [*182]  a pirate, hovering on the coast with intent to introduce slaves in violation of the laws of the United States, our treaty requires that property rescued from pirates shall be restored to the Spanish owner on his making proof of his property.

Whether the General Ramirez, originally the Antelope, is to be considered as the prize of a commissioned belligerent ship of war unlawfully equipped in the United States, or as a pirate, it seems proper to make some inquiry into the title of the claimants.

In support of the Spanish claim, testimony is produced, showing the documents under which the Antelope sailed from the Havana on the voyage on which she was captured; that she was owned by a Spanish house of trade in that place; that she was employed in the business of purchasing slaves, and had purchased and taken on board a considerable number, when she was seized as prize by the Arraganta.

Whether, on this proof, Africans brought into the United States, under the various circumstances belonging to this case, ought to be restored or not, is a question on which much difficulty has been felt. It is unnecessary to state the reasons in support of the affirmative or negative answer  [*183]  to it, because the Court is divided on it, and, consequently, no principle is settled. So much of the decree of the Circuit Court as directs restitution to the Spanish claimant of the Africans found on board the Antelope when she was captured by the Arraganta, is affirmed.

There is some difficulty in ascertaining their number. The libel claims one hundred and fifty as belonging to Spanish subjects, and charges that one hundred or more of these were on board the Antelope. Grondona and Ximenes, Spanish officers of the Antelope before her capture, both depose positively to the number of one hundred and sixty-six. Some deduction, however, is to be made from the weight of Grondona's testimony, because, he says, in one of his depositions, that he did not count the slaves on the last day when some were brought on board, and adds, that he had lost his papers, and spoke from memory, and from the information he had received from others of the crew, after his arrival in the Havana. Such of the crew as were examined, concur with Grondona and Ximenes as to numbers.

The depositions of the Spanish witnesses on this point, are opposed by those of John Smith, the Captain of the General  [*184]  Ramirez, and William Brunton, one of the crew of the Arraganta, who was transferred to the Antelope.

John Smith deposes, that ninety-three Africans were found on board the Antelope when captured, which he believes to have been Spanish property. He also says, that one hundred and eighty-three were taken out of Portuguese vessels.

William Brunton deposes, that more slaves were taken out of the Portuguese ship than were in any other, and that ninety odd were represented by the crew to have been on board the Antelope when she was captured.

If, to the positive testimony of these witnesses, we add the inference to be drawn from the statement of the libel, and the improbability that so large a number of Africans as are claimed could have been procured, under the circumstances in which the Antelope was placed, between the 13th, when she was liberated by the first pirate who seized her, and the 23d, when she was finally captured, we are rather disposed to think the weight of testimony is in favour of the smaller number. But supposing perfect equality in this respect, the decision ought, we think, to be against the claimant.

Whatever doubts may attend the question whether the  [*185]  Spanish claimants are entitled to restitution of all the Africans taken out of their possession with the Antelope, we cannot doubt the propriety of demanding ample proof of the extent of that possession. Every legal principle which requires the plaintiff to prove his claim in any case, applies with full force to this point; and no countervailing consideration exists. The onus probandi, as to the number of Africans which were on board when the vessel was captured, unquestionably lies on the Spanish libellants. Their proof is not satisfactory beyond ninety-three. The individuals who compose this number must be designated to the satisfaction of the Circuit Court.

We proceed next to consider the libel of the Vice-Consul of Portugal. It claims one hundred and thirty slaves, or more, "all of whom, as the libellant is informed and believes," are the property of a subject or subjects of his Most Faithful Majesty; and although "the rightful owners of such slaves be not at this time individually and certainly known to the libellant, he hopes and expects soon to discover them."

John Smith, and William Brunton, whose depositions have already been noticed, both state, that several  [*186]  Africans were taken out of Portuguese vessels; but neither of them state the means by which they ascertained the national character of the vessels they had plundered. It does not appear that their opinions were founded on any other fact than the flag under which the vessels sailed.Grondona, also, states the plunder of a Portuguese vessel, lying in the same port, and engaged in the same traffic with the Antelope when she was captured; but his testimony is entirely destitute of all those circumstances which would enable us to say, that he had any knowledge of the real character of the vessel, other than was derived from her flag. The cause furnishes no testimony of any description, other than these general declarations, that the proprietors of the Africans now claimed by the Vice-Consul of Portugal, were the subjects of his king; nor is there any allusion to the individuals to whom they belong. These vessels were plundered in March, 1820, and the libel was filed in August of the same year. From that time to this, a period of more than five years, no subject of the crown of Portugal has appeared to assert his title to this property, no individual has been designated as  [*187]  its probable owner. This inattention to a subject of so much real interest, this total disregard of a valuable property, is so contrary to the common course of human action, as to justify serious suspicion that the real owner dares not avow himself.

That Americans, and others, who cannot use the flag of their own nation, carry on this criminal and inhuman traffic under the flage of other countries, is a fact of such general notoriety, that Courts of admiralty may act upon it. It cannot be necessary to take particular depositions, to prove a fact which is matter of general and public history. This long, and otherwise unaccountable absence, of any Portuguese claimant, furnishes irresistible testimony, that no such claimant exists, and that the real owner belongs to some other nation, and feels the necessity of concealment.

An attempt has been made to supply this defect of testimony, by adducing a letter from the secretary to whose department the foreign relations of Portugal are supposed to be intrusted, suggesting the means of transporting to Portugal those slaves which may be in the possession of the Vice-Consul, as the property of his fellow subjects. Allow to this  [*188]  document all the effect which can be claimed for it, and it can do no more than supply the want of an express power from the owners of the slaves to receive them. It cannot be considered as ascertaining the owners, or as proving their property.

The difficulty, then, is not diminished by this paper. These Africans still remain unclaimed by the owner, or by any person professing to know the owner. They are rightfully taken from American citizens, and placed in possession of the law. No property whatever in them is shown. It is said, that possession, in a case of this description, is equivalent to property. Could this be conceded, who had the possession? From whom were they taken by the Arraganta? It is not alleged that they are the property of the crown, but of some individual. Who is that individual?No such person is shown to exist, and his existence, after such a lapse of time, cannot be presumed.

The libel, which claims them for persons entirely unknown, alleges a state of things which is prima facie evidence of an intent to violate the laws of the United States, by the commission of an act which, according to those laws, entitles these men to freedom. Nothing  [*189]  whatever can interpose to arrest the course of the law, but the title of the real proprietor. No such title appears, and every presumption is against its existence.

We think, then, that all the Africans, now in possession of the Marshal for the District of Georgia, and under the control of the Circuit Court of the United States for that District, which were brought in with the Antelope, otherwise called the General Ramirez, except those which may be designated as the property of the Spanish claimants, ought to be delivered up to the United States, to be disposed of according to law. So much of the sentence of the Circuit Court as is contrary to this opinion, is to be reversed, and the residue affirmed.

DECREE. This cause came on to be heard, &c.; On consideration whereof, this Court is of opinion, that there is error in so much of the sentence and decree of the said Circuit Court, as directs the restitution to the Spanish claimant of the Africans in the proceedings mentioned, in the ratio which one hundred and sixty-six bears to the whole number of those which remained alive at the time of pronouncing the said decree; and also in so much thereof, as directs restitution  [*190]  to the Portuguese claimant; and that so much of the said decree ought to be reversed, and it is hereby reversed and annulled. And this Court, proceeding to give such decree as the said Circuit Court ought to have given, doth DIRECT and ORDER, that the restitution to be made to the Spanish claimant, shall be according to the ratio which ninety-three (instead of one hundred and sixty-six) bears to the whole number, comprehending as well those originally on board the Antelope, as those which were put on board that vessel by the Captain of the Arraganta. After making the apportionment according to this ratio, and deducting from the number the reteable loss which must fall on the slaves to which the Spanish claimants were originally entitled, the residue of the said ninety-three are to be delivered to the Spanish claimant, on the terms in the said decree mentioned; and all the remaining Africans are to be delivered to the United States, to be disposed of according to law; and the said decree of the said Circuit Court is, in all things not contrary to this decree, affirmed.