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quent case of the Diana," the doctrine was not carried so far as to hold the trade itself to be piracy, or a crime against the law of nations. A Swedish vessel was taken by a British cruiser on the coast of Africa, engaged in carrying slaves from Africa to a Swedish island in the West Indies, and she was restored to the owner, on the ground that Sweden had not then prohibited the trade, and had tolerated it in practice. England had abolished the trade as unjust and criminal, but she claimed no right of enforcing that prohibition against the subjects of those states which had not adopted the same opinion; and England did not mean to set herself up as the legislator, and custos morum, for the whole world, or presume to interfere with the commercial regulations of other states. The principle of the case of the Amedie was, that where the municipal law of the country to which the parties belonged had prohibited the trade, English tribunals would hold it to be illegal, upon general principles of justice and humanity, but they would respect the property of persons engaged in it under the sanction of the laws of their own country.

The doctrine of these cases is, that the slave trade, abstractedly speaking, is immoral and unjust, and it is illegal, when declared so by treaty, or municipal law; but that it is not piratical or illegal by the common law of nations, because, if it were so, every claim founded on the trade would at once be rejected every where, and in every court, on that ground alone.

The whole subject underwent further, and a most full, elaborate, and profound discussion, in the case of the Le Louis. 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

a 1 Dodson, 95.

b 2 Dodson, 210.

in the slave trade contrary to the French law. On appeal to the British High Court of Admiralty, the question respecting the legality of the capture and condemnation was argued, and it was judicially decided, that the right of visitation and search, on the high seas, did not exist in time of peace. If it belonged to one nation, it equally belonged to all, and would lead to gigantic mischief, and universal war. Other nations had refused to accede to the English proposal of a reciprocal right of search in the African seas, and it would require an express convention to give the right of search in time of peace. The slave trade, though unjust, and condemned by the statute law of England, was not piracy, nor was it a crime by the universal law of nations. To make it piracy, or such a crime, it must have been so considered and treated in practice by all civilized states, or made so by virtue of a general convention. On the contrary, it had been carried on by all nations, 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. The court held, that the British statutes against the slave trade, were only appli

a 3 Barnewall & Alderson, 353.

cable 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 general law of nations. It was, until lately, carried on by all the nations of Europe; and a practice so sanctioned can only be rendered illegal, on the principles of international law, by the consent of all the powers. Many states had so consented, but others had not, and the cases had gone no further than to establish the rule, that ships belonging to countries that had prohibited the trade, were liable to capture and condemnation, if found engaged in it.

The final decision of the question in this country, has been the same as in the case of the Le Louis. In the case of the La Jeune Eugenie," 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, the Supreme Court of the United States declared that the slave trade had been sanctioned, in modern times, by the laws of all nations who possessed distant colonies; and a trade could not be considered as contrary to the law of nations, which had been authorized and protected by the usages and laws of all commercial nations. It was not piracy, except so far as it was made so by the treaties or statutes of the nation to which the party belonged. It might still be lawfully carried on by the subjects of those nations who have not prohibited it by municipal acts or treaties.

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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, and owed allegiance to the British crown. That VOL. I.

26

of the New

lonies

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 Conf derney claims of the British parliament which produced it. The England Co- people of the New-England colonies were very early in the habit of confederating together for their common defence. 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 connexion, 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 neighbours, 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 popu lation; 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."

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

a Hazard's State Papers, 496. 583. 590. Hutchinson's History of Massachusetts, vol. 1. 124. 126. Robertson's Posthumous History of America, b. 10. p. 191, 192. Winthrop's Hist. of New-England, by Savage, vol. 2. 101, Bayles' Historical Memoir, vol. 2. 118. Trumbull's Hist. of Connecticut, vol. 1. 124.

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