Page images
PDF
EPUB

adopted the same opinion; and England did not mean to set herself up as the legislator, and custos morum, for the whole world, or presume to interfere with the commercial regulations of other states. The principle of the case of The Amedie was, that where the municipal law of the country to which the parties belonged had prohibited the trade, English tribunals would hold it to be illegal, upon general principles of justice and humanity, but they would respect the property of persons engaged in it under the sanction of the laws of their own country.

The doctrine of these cases is, that the slave-trade, 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.'

She

The whole subject underwent further, and a most full, elaborate, and profound discussion, in the case of the Le Louis. (a) 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. was carried into Sierra Leone, and condemned by a court of vice-admiralty, for being concerned in the 199 slave-trade, contrary to the French law. On appeal to the British high court of admiralty, the question respecting the legality of the capture and condemnation was argued, and it was judicially decided, that the right of visitation and search, on the high seas, did not exist in time of peace. If it belonged to one nation, it equally belonged to all, and would lead to gigantic mischief, and universal war. Other nations had refused to accede to the English proposal of a reciprocal right of search in the African seas, and it would require an express convention to give the right of search in time of peace. The slave-trade, though unjust, and condemned by the statute law of England, was not piracy, nor was it a crime by the uni

(a) 2 Dodson's Adm. Rep. 210.

1 Buron v. Denman, 2 Wels. H. & Gor. R. 167.

versal law of nations. To make it piracy, or such a crime, it must have been so considered and treated in practice by all civilized states, or made so by virtue of a general convention. On the contrary, it had been carried on by all nations, even by Great Britain herself, until within a few years, and was then carried on by Spain and Portugal, and not absolutely prohibited by France. It was, therefore, not a criminal traffic by the law of nations; and every nation, independent of treaty, retained a legal right to carry it on. No one nation had a right to force the way to the liberation of Africa, by trampling on the independence of other states; or to procure an eminent good by means that were unlawful; or to press forward to a great principle, by breaking through other great principles that stood in the way. The condemnation of the French vessel at Sierra Leone was, therefore, reversed; and the penalties imposed by the French law (if any there were) were left to be enforced, not in an English, but in a French court.

The same subject was brought into discussion in the K. B. in 1820, in Madrazo v. Willes. (a) The court held, that the

British statutes against the slave-trade were only ap*200 plicable* to British subjects, and only rendered the slave

trade unlawful when carried on by them. The British parliament could not prevent the subjects of other states from carrying on the trade out of the limits of the British dominions. If a ship be acting contrary to the general law of nations, she is thereby subject to condemnation; but it is impossible to say that the slave-trade was contrary to the 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

(a) 3 Barn. & Alderson, 353.

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 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)

(a) 2 Mason's Rep. 409.

(b) 10 Wheaton, 66.

(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

nies.

the British parliament which produced it. The people Confeder of the New England colonies were very early in the New Enghabit of confederating together for their common de- land colofence. As their origin and their interests were the same, and their manners, their religion, their laws, and their civil institutions exceedingly similar, they were naturally led to a very intimate connection, and were governed by the same wants and wishes, the same sympathies and spirit. The colonies of Massachusetts, Plymouth, Connecticut, and New Haven, as early as 1643, under the impression of danger from the surrounding tribes of Indians, and for protection against the claims and encroachments of their Dutch neighbors, entered into a league, offensive and defensive, which they declared should be firm and perpetual, and be distinguished by the name of the United Colonies of New England. By their articles of confederation, each colony was to have exclusive jurisdiction within its own territory; and in every war, offensive and defensive, each of the confederates was to furnish its quota of men and money in a ratio to its population; and a congress of two commissioners, delegated from each colony, was to be held annually, with power to deliberate and decide on all affairs of war and peace, and on all points of common concern; and every determination, in which three fourths in number of the assembly concurred, was to be binding upon the whole confederacy. (a)

This association may be considered as the foundation of a series of efforts for a more extensive and more perfect union of the colonies. It contained some provident and *jealous provisions, calculated to give security and sta- *203 bility to the whole. It provided that no two colonies. were to join in jurisdiction, without the consent of all; and it required the like unanimous consent to admit any other colony into the confederacy; and if any one member violated any article of it, or any way injured another colony, the commissioners of the other colonies were to take cognizance of the matter, and

(a) Hazard's State Papers, 496, 583, 590. Hutchinson's History of Massachusetts, vol. i. pp. 124, 126. Robertson's Posthumous History of America, b. 10, pp. 191, 192. Winthrop's Hist. of New England, by Savage, vol. ii. p. 101. Baylies's Historical Memoir, vol. ii. p. 118. Trumbull's Hist. of Connecticut, vol. i. p. 124. Plymouth Colony Laws, App. p. 308, edit. 1836.

« PreviousContinue »