*197 *The case of The Amedie (a) was the earliest decision in English courts on the great question touching the legality of the slave-trade, on general principles of international law. That was the case of an American vessel, employed in carrying slaves from the coast of Africa to a Spanish colony. She was captured by an English cruiser, and the vessel and cargo were condemned to the captors, in a vice-admiralty court in the West Indies, and, on appeal to the Court of Appeals in England, the judgment was affirmed. Sir Wm. Grant, who pronounced the opinion of the court, observed that the slave-trade, being abolished by both England and the United States, the court was authorized to assert, that the trade, abstractly speaking, could not have a legitimate existence, and was, prima facie, illegal upon principles of universal law. The claimant, to entitle him to restitution, must show affirmatively a right of property under the municipal laws of his own. country; for, if it be unprotected by his own municipal law, he can have no right of property in human beings carried as his slaves, for such a claim is contrary to the principles of justice and humanity. The Fortuna, (b) was condemned on the authority of The Amedie, and the same opinion was again affirmed. But in *198 the subsequent case of The Diana, (a) the doctrine was not carried so far by Lord Stowell, as to hold the trade itself to be piracy, or a crime against the law of nations. A Swedish vessel was taken by a British cruiser on the coast of Africa, engaged in carrying slaves from Africa to a Swedish island in the West Indies, and she was restored to the owner, on the ground that Sweden had not then prohibited the trade, and had tolerated it in practice. England had abolished the trade as unjust and criminal, but she claimed no right of enforcing that prohibition against the subjects of those states which had not adopted the same * were the two powers chargeable with the whole responsibility of the continuance of the slave-trade, and that the island of Cuba was in a precarious, if not a perilous position, from the settled determination of her black population to emancipate themselves; and it is stated, on strong authority, that the English effort to put down the slavetrade by an armed force of British cruisers on the coast of Africa has increased the horrors of the slave-trade, without materially diminishing its amount. See Hill's Narrative of Fifty Days on Board a Slave-Ship, Sir F. Buxton on African SlaveTrade, and the other documents referred to and discussed in Westminster Review for June, 1844, p. 446, &c. (a) 1 Acton Adm. 240. (b) 1 Dod. Adm. 81. (a) 1 Dod. Adm. 95. opinion; and England did not mean to set herself up as the legislator, and custos morum, for the whole world, or presume to interfere with the commercial regulations of other states. The principle of the case of The Amedie was, that where the municipal law of the country to which the parties belonged had prohibited the trade, English tribunals would hold it to be illegal, upon general principles of justice and humanity, but they would respect the property of persons engaged in it under the sanction of the laws of their own country. The doctrine of these cases is, that the slave-trade, abstractly speaking, is immoral and unjust, and it is illegal, when declared so by treaty or municipal law; but that it is not piratical or illegal by the common law of nations, because, if it were so, every claim founded on the trade would at once be rejected everywhere and in every court, on that ground alone.1 The whole subject underwent further, and a most full, elaborate, and profound discussion, in the case of the Le Louis. (b) A French vessel, owned and documented as a French vessel, was captured by a British armed force on the coast of Africa, after resistance made to a demand to visit and search. She was carried into Sierra Leone, and condemned by a court of vice-admiralty, for being concerned in the slave-trade, contrary to the *199 French law. On appeal to the British high court of admiralty, the question respecting the legality of the capture and condemnation was argued, and it was judicially decided, that the right of visitation and search, on the high seas, did not exist in time of peace. If it belonged to one nation, it equally belonged to all, and would lead to gigantic mischief, and universal war. Other nations had refused to accede to the English proposal of a reciprocal right of search in the African seas, and it would require an express convention to give the right of search in time of peace. The slave-trade, though unjust, and condemned by the statute law of England, was not piracy, nor was it a crime by the universal law of nations. To make it piracy, or such a crime, it must have been so considered and treated in practice by all civilized states, or made so by virtue of a general convention. (b) 2 Dod. Adm. 210. 1 Buron v. Denman, 2 Wels., H. & Gor. 167. On the contrary, it had been carried on by all nations, even by Great Britain herself, until within a few years, and was then carried on by Spain and Portugal, and not absolutely prohibited by France. It was, therefore, not a criminal traffic by the law of nations; and every nation, independent of treaty, retained a legal right to carry it on. No one nation had a right to force the way to the liberation of Africa, by trampling on the independence of other states; or to procure an eminent good by means that were unlawful; or to press forward to a great principle, by breaking through other great principles that stood in the way. The condemnation of the French vessel at Sierra Leone was, therefore, reversed; and the penalties imposed by the French law (if any there were) were left to be enforced, not in an English, but in a French court. * The same subject was brought into discussion in the K. B. in 1820, in Madrazo v. Willes. (a) The court held, that the British statutes against the slave-trade were only appli*200 cable to British subjects, and only rendered the slavetrade unlawful when carried on by them. The British parliament could not prevent the subjects of other states from carrying on the trade out of the limits of the British dominions. If a ship be acting contrary to the general law of nations, she is thereby subject to condemnation; but it is impossible to say that the slave-trade was contrary to the law of nations. It was, until lately, carried on by all the nations of Europe; and a practice so sanctioned can only be rendered illegal, on the principles of international law, by the consent of all the powers. Many states had so consented, but others had not, and the cases had gone no further than to establish the rule, that ships belonging to countries that had prohibited the trade were liable to capture and condemnation, if found engaged in it. The final decision of the question in this country has been the same as in the case of the Le Louis. In the case of the La Jeune Eugénie, (a) it was decided, in the Circuit Court of the United States, in Massachusetts, after a masterly discussion, that the slave-trade was prohibited by universal law. But subsequently, in the case of The Antelope, (b) the Supreme Court of the United States declared that the slave-trade, though contrary to the law (a) 3 B. & Ald. 353. (b) 10 Wheaton, 66. (a) 2 Mason, 409. of nature, had been sanctioned, in modern times, by the laws of all nations who possessed distant colonies; and a trade could not be considered as contrary to the law of nations which had been authorized and protected by the usages and laws of all commercial nations. It was not piracy, except so far as it was made so by the treaties or statutes of the nation to which the party belonged. It might still be lawfully carried on by the subjects of those nations who had not prohibited it by municipal acts or treaties. (c) (c) The doctrine in the case of The Antelope, and in the English cases therein referred to, is, that right of bringing in for adjudication, in time of peace, foreign vessels engaged in the slave-trade, and captured on the high seas for that cause, did not exist; and vessels so captured would be restored, unless the trade was also unlawful, and prohibited by the country to which the vessel belonged; and if a claim be put in for Africans as slaves and property, the onus probandi is thrown upon the claimant to make specific proof of the individual proprietary interest according to the laws of the country to which the vessel belongs. PART II. OF THE GOVERNMENT AND CONSTITUTIONAL JURISPRUDENCE OF THE UNITED STATES. LECTURE X. OF THE HISTORY OF THE AMERICAN UNION. THE government of the United States was erected by the free voice and joint will of the people of America, for their common defence and general welfare. Its powers apply to those great interests which relate to this country in its national capacity, and which depend for their stability and protection on the consolidation of the Union. It is clothed with the principal attributes of political sovereignty, and it is justly deemed the guardian of our best rights, the source of our highest civil and political duties, and the sure means of national greatness. The constitution and jurisprudence of the United States deserve the most accurate examination; and an historical view of the rise and progress of the Union, and of the establishment of the present constitution, as the necessary fruit of it, will tend to show the genius and value of the government, and prepare the mind of the student for an investigation of its powers. The association of the American people into one body politic took place while they were colonies of the British empire, * 202 and owed allegiance to the British crown. That the union of this country was essential to its safety, its prosperity, and its greatness had been generally known, and frequently avowed, long before the late revolution, or the claims of the BritConfederacy ish parliament which produced it. The people of the of the New New England colonies were very early in the habit of confederating together for their common defence. As England colo nies. |