« AnteriorContinuar »
In a case which occurred in 1675, Sir Leoline Jenkins held, that the commander of a privateer regularly commissioned, was liable to be treated as a pirate, if he exceeded the bounds of his commission. Bynkershoeck justly opposes this dangerous opinion ;' and the true rule undoubtedly is, that the vessel must have lost its national and assumed a piratical character, before jurisdiction over it, to that extent, could be exercised.
If a natural born subject was to take prizes belonging to his native country, in pursuance of a foreign commission, he would, on general principles, be protected by his commission from the charge of piracy. But to prevent the mischief of such conduct, the United States have followed the provisions of the English statute of 11 and 12 Wm. III. c. 7. and have, by the act of Congress of April 30th, 1790, sec. 9, declared, that if any citizen should commit any act of hostility against the United States, or any citizen thereof, upon the high seas, under colour of any commission from any foreign prince or state, or on pretence of authority from person, such offender shall be adjudged to be a pirate, felon, and robber, and, on being thereof convicted, shall suffer death. The act of Congress not only authorizes a capture, but a condemnation in the courts of the United States, for all piratical aggressions by foreign vessels; and whatever may be the responsibility incurred by the nation to foreign powers, in executing such laws, there can be no doubt that courts of justice are bound to obey and administer them. All such hostile and criminal aggressions on the high seas, under the flag of any power, render property taken in delicto subject to confiscation by the law of nations.b
(4.) The African slave trade is an offence against the Slavo Tiado. municipal laws of most nations in Europe, and it is declared to be piracy by the statute laws of England and the
a Quæst. J. P. b. 1. c. 17. b Story, J. 11 Wheaton, 39—41.
United States. Whether it is to be considered as an offence against the law of nations, independent of compact, has been a grave question, much litigated in the courts charged with the administration of public law; and it will be useful to take a short view of the progress and present state of the sense and practice of nations on this subject.
Personal slavery, arising out of forcible captivity, has existed in every age of the world, and among the most refined and civilized people. The possession of persons so acquired, has been invested with the character of property. The slave trade was a regular branch of commerce among the ancients; and a great object of Athenian traffic with the Greek settlements on the Euxine, was procuring slaves from the barbarians for the Greek market. In modern times, treaties have been framed, and national monopolies sought, to facilitate and extend commerce in this species of property. It has been interwoven into the municipal institutions of all the Europeon colonies in America, and with the approbation and sanction of the parent states. It forms to this day the foundation of large masses of property in the southern parts of these United States. But, for half a century past, the African slave trade began to awaken a spirit of remorsc and sympathy in the breasts of men, and a conviction that the traffic was repugnant to the principles of Christian duty, and the maxims of justice and humanity.
Montesquieu, who has disclosed so many admirable truths, and so much profound reflection, in his Spirit of Laws, not only condemned all slavery as useless and unjust, but he animadverted upon the African slave trade by the most pungent reproaches. It was impossible, he observed, that we could admit the negroes to be human beings, because, if we were once to admit them to be men, we should
a Milford's Hist. vol. 4. 236. The Byzantines, says Polybius, (General History, b. 4. ch. 5.) supplied from the Pontus, the Greeks with honey, wax, salted meats, leather, and great numbers of very serviceable slaves.
soon come to believe that we ourselves were not Christians. Why has it not, says he, entered into the heads of the European princes, who make so many useless conventions, to make one general stipulation in favour of humanity ? We shall see presently that this suggestion was, in some degree, carried into practice by a modern European congress.
The constitution of the United States laid the foundation of a series of provisions, to put a final stop to the progress of this great moral pestilence, by admitting a power in Congress to prohibit the importation of slaves, after the expiration of the year 1807. The constitution evidently looked forward to the year 1808 as the commencement of an epoch in the history of human improvement. Prior to that time, Congress did all on this subject that it was within their competence to do. By the acts of March 22d, 1794, and May 10th, 1800, the citizens of the United States, and residents within them, were prohibited from engaging in the transportation of slaves from the United States to any foreign place or country, or from one foreign country or place to another, for the purpose of traffic. These provisions prohibited our citizens from all concern in the slave trade, with the exception of direct importation into the United States; and the most prompt and early steps were taken, within the limits of the constitution, to interdict that part of the traffic also. By the act of 2d March, 1807, it was prohibited, under severe penalties, to import slaves into the United States, after the 1st January, 1808; and, on the 20th April,
a L'Esprit des Loix, liv. 15. ch. 5.
6 The Continental Congress which assembled at Philadelphia in 1774, gave the first general and authoritative condemnation of the Slave Trade, by the resolution not to import, or purchase any slave imported after the first day of December in that year, and wholly to discontinue the trade. Journals of Congress, vol. 1. p. 32. The Convention of Delegates of the People of Virginia had anticipated this measure, for in August preceding they resolved to discontinue the importation of slaves. Pilkin's History, vol. 1. app. n. 16. VOL.I.
1818, the penalties and punishments were increased, and the prohibition extended not only to importation, but generally against any citizen of the United States being concerned in the slave trade. It has been decided, that these statute prohibitions extend as well to the carrying slaves on freight, as to cases where they were the property of American citizens, and to carrying them from one port to another of the same foreign empire, as well as from one foreign country to another. The object was to prevent, on the part of our citizens, all concern whatever in such a trade.
The act of March 3d, 1819, went a step further, and authorized national armed vessels to be sent to the coast of Africa, to stop the slave trade, so far as citizens or residents of the United States were engaged in that trade ; and their vessels and effects were made liable to seizure and confiscation. The act of 15th May, 1820, went still further, and declared, that if any citizen of the United States, being of the crew of any foreign vessel engaged in the slave trade, or any person whatever, being of the crew of any vessel armed in whole or in part, or navigated for or on behalf of any citizen of the United States, should land on any foreign shore, and seize any negro or mulatto, with intent to make him a slave, or should decoy, or forcibly bring, or receive such negro on board such vessel, with like intent, such citizen or person should be adjudged a pirate, and, on conviction, should suffer death.
It is to be observed, that the statute operates only where our municipal jurisdiction might be applied consistently with the general theory of public law, to the persons of our citizens, or to foreigners on board of American vessels. Declaring the crime piracy, does not make it so, within the
a The Merino, 9 Wheaton, 391. The declarations of the master, connected with his acts in furtherance of the voyage, have been held to be evidence on an indictment against the owner of the ship, under the act of 20th April, 1818. United States v. Gooding, 12 Wheaton, 460.
purview of the law of nations, if it were not so without the statute; and the legislature intended to legislate, only where they had a right to legislate, over their own citizens and vessels. The question, notwithstanding these expressions in the statute, still remained to be discussed and settled, whether the African slave trade could be adjudged piracy, or any other crime, within the contemplation of the code of international law. It has been attempted, by negotiation between this country and Great Britain, to agree that both nations should consider the slave trade piratical; but the convention for that purpose between the two nations has not as yet been ratified, though the British nation have carried their statute denunciation of the trade as far as the law of the United States.
The first British statute that declared the slave trade unlawful, was in March, 1807. This was a great triumph of British justice. It was called for by the sense of the nation, which had become deeply convinced of the impolicy and injustice of the slave trade; and by the subsequent statute of 51 Geo. III. the trade was declared to be contrary to the principles of justice, humanity, and sound policy; and lastly, by the act of Parliament of 31st March, 1824, the trade is declared to be piracy. England is thus, equally with the United States, honestly and zealously engaged in promoting the universal abolition of the trade, and in holding out to the world her sense of its extreme criminality. Almost every maritime nation in Europe has also deliberately and solemnly, either by legislative acts, or by treaties and other formal engagements, acknowledged the injustice and inhumanity of the trade, and pledged itself to promote its abolition. By the treaty of Paris of the 30th May, 1814, between Great Britain and France, Lewis XVIII. agreed that the traffic was repugnant to the princi. ples of natural justice, and he engaged to unite his efforts at the ensuing congress, to induce all the powers of chris
a Stat. 47 Geo. III.