$138.

In the progress of humane and Christian principles, and of correct views of human rights, slavery has come to Is the slave trade be regarded as an unjust and cruel degradation of piracy? man made in the image of God. It is, accordingly, a status unprotected by the law of nations, and supported where it exists, only by local law. (§ 70.) Hence persons seized to be sold as slaves in a territory where the importation of slaves is forbidden, commit no crime when they get possession of the vessel, and either slay the crew, or compel them to sail for another country. They are only defending their lawful rights. Thus, when certain blacks who had lately been imported into Cuba from Africa, and were therefore illegally held in bondage, and were by right free according to Spanish law, rose on the crew between Havana and Puerto Principe, killed the captain, and finally came into the waters of the United States, it was held by the supreme court that if they had been slaves, our treaties with Spain would have required their restoration, but that they were not slaves, and if not slaves, not pirates.1

With new views of men's rights, and with fuller knowledge of the woes inflicted on Africa by the slave trade, this traffic, which misguided benevolence at first suggested, became abhorrent to the feelings of Christendom, and has everywhere become unlawful. Denmark, we believe, led the way, in 1792, by prohibiting the slave trade and importation into her colonies of slaves from abroad after the year 1802. Under the constitution of the United States, the importation of slaves could not become illegal before 1808, but acts passed in 1794 and 1800 forbade all citizens and residents to carry slaves from this country to a foreign one, or from one foreign country to another. In 1807 the importation of slaves was made to cease after January 1, 1808, and in 1818 a law was passed increasing the penalties of the trade and applying to all participation of citizens of the United States in it. In 1819 the vessels and effects of citizens found to have been engaged in the trade were made liable to seizure and confiscation. And by the act of March 3, 1820, all persons over whom our jurisdiction extends, that is, all persons in vessels owned within the United States, and all citizens on foreign vessels concerned in the slave trade, or in kidnapping negroes or mulattoes, were to be deemed pirates and to suffer death.

In Great Britian, the first act declaring the slave trade unlawful was passed in 1807, but not until 1824 was it pronounced to be piracy. Nearly all the nations of Europe have subsequently

United States v. The Amistad,' 15 Peters, 518-598.

passed laws more or less stringent against the traffic. Its abolition was conceded by Spain in her treaty with Great Britain, in September 1817. Portugal agreed to prohibit it north of the equator, by treaty with England, of January 22, 1815, and it ought by the same treaty to have come altogether to an end when the independence of Brazil was acknowledged in 1825. It ceased to be legal in Brazil by 1830, and in 1831 a law of that country not only freed all slaves who should be imported afterwards, but also provided for their reconveyance to Africa.

In 1824, the house of representatives in our congress, by a very large majority, requested the president to make arrangements by which the slave trade should become piracy under international law; but nothing was hereby effected. (§ 198.) Great Britain, both before and after this, in a number of treaties, secured the suppression of the trade, with the mutual right of search, of which we shall speak hereafter. (§ 197.) In her treaty with Brazil of March 13, 1827, it was stipulated that, after three years, a subject of the Emperor of Brazil carrying on the trade should be deemed and treated as a pirate. This must mean that whatever may be done under the laws of nations for the detection and seizure of pirates might be done under the treaty towards Brazilian slave traders, as search, capture, and trial before the captor's courts; but England forbore to take the steps to which the treaty gave her a right.1

However much the slave trade may deserve to be ranked with piracy, or ranked as a worse crime still, it is not yet such by the law of nations, and would not be, if all the nations in Christendom constituted it piracy by their municipal codes. For the agreement of different states in the definitions and penalties of crimes by no means gives to any one of them the right to execute the laws of another. That power must be acquired by treaty between separate states, or by consent of all states, in which latter case it would belong to international law. Meanwhile, the fact that the slavetrade has not been placed in this category adds greatly to the difficulty of suppressing it, as will appear in the sequel. (§ 199.)

SECTION IV.-Capture and Recapture, Occupation and Recovery of Territory. § 139.

Capture in general, especially from enemies.

Capture of private property has nearly disappeared from land warfare, but is allowed by international war, as well in the case of neutrals as of enemies, at sea. The same humane principles, however, which have put a stop to it on the one element are at work to abridge its sphere on the 1 Wildman, ii. 150, seq. For the section in general, compare Kent, lect. ix.

other. The rule already adopted by the principal European powers that free ships engaged in lawful trade make free goods, is sure to become universal; and if so, the hostile property exposed to the cruisers of the other belligerent may become so inconsiderable that the trade of plundering on the sea will be hardly worth carrying on. Meanwhile, the only specious pretexts for marine capture are these two, that the enemy's commerce furnishes him with the means of war, so that it may justly be obstructed, and that the captured vessels are pledges for the reparation of injuries. The former pretext will amount to nothing, if hostile trade can be conducted in such a way as to exempt it from capture. The other pretext will require that ships and goods captured be regarded, until peace settles all questions between nations, as simply detained to be restored, or have an equivalent paid for them if necessary. We must profess, however, that we indulge that 'pious chimæra,' as it has been called, that all private property on the sea, engaged in a lawful trade to permitted ports, ought to cross the seas in safety; we have the sanction of the authority of Franklin, and of sober propositions made by our own government, for regarding such a rule as both desirable and practicable; we must esteem it nearer to justice, and certainly to humanity, than the present inequality of risk on the two elements; and it will probably be found, owing to the new rule in favour of neutrals, that marine capture will not be worth retaining.1

The fact, meanwhile, is that on land the property of combatants when taken in battle, goes to the victors, and that soldiers have generally free licence of plunder at the storming of towns. On the sea, property of the enemy's subjects in their ships is lawful prize, unless secured by a special permit. And on both elements most kinds of public property of the enemy are exposed to hostile depredations. The right is exercised even against such vessels as have had no notice of the commencement of hostilities, and everywhere except in neutral waters.

§ 140.

From the principle that states are the belligerent parties, it flows, as we have seen, that an authority derived Property in from the state is necessary, before a prize can be prizes, how and taken. It flows also, from the same principle, that

when begun.

1 In a meeting of the chambers of commerce of Hamburg and Bremen, resolutions have been recently passed to memorialise the congress expected to meet at Paris, in favour of the exemption of private property on the sea from capture. The resolution passed at Bremen, Dec. 2, 1859, is as follows:- That the inviolability of person and property in time of war, on the high seas, extended also to the subjects and citizens of belligerent states, except so far as the operations of war necessarily restrict the same, is imperatively demanded by the sentiments of justice universally entertained at the present day.' They then request the senate of Bremen to support this principle, and to lay the subject before the German confederation or the proposed congress.

6

2

all private title to prize must be derived from the laws of the state. When does such a title commence? Some have said, at the moment of capture, or of taking possession, as though the vessel taken were a res nullius; others after twenty-four hours' possession; others, when the prize is carried infra præsidia, and is thus secure against recapture; and others, finally, when a court has adjudged it to the captor. The question,' says Kent, never arises but between the original owner and a neutral purchasing from the captor; and between the original owner and the recaptor. If a captured ship escape from the captor, or is retaken, or the owner ransoms her, his property is thereby revested. But if neither of these events happens, the question as to change of title is open to dispute, and many arbitrary lines have been drawn, partly from policy, to prevent too easy disposition of the property of neutrals, and partly from equity, to extend the jus postliminii in favour of the owner. Thus there is no settled view or principle as to the time when a title from capture begins. Perhaps no definite rule can be laid down any more than in answering the question when occupation ends in ownership, which the laws of different states will determine differently. The state's title begins in the fact of seizure according to the rights of war-that is, when the battle is over, and the spes recuperandi is gone.' (Phillimore iii. 460.) But the title can be contested in certain circumstances by neutral ments, as on the ground that capture was made in their waters; or by private subjects of neutral governments, as in the various cases of seizure of neutral goods and ships; or by subjects of the enemy, as where licences to trade were not respected by the captor. If, now, a neutral buys the prize immediately after capture, he buys it subject to the claims of injured parties, and has his remedy in the captor's courts, provided the latter conveys that for which he had no good title. If the owner ransoms her, he extinguishes the captor's title, of whatever kind it be, good or bad. The laws of the state determine the steps which the captor, as the state's agent, must take in regard to the property, and especially at what time he is allowed to have an entire or partial interest in the things taken. It is the first duty of the captor, says Mr. Wildman (ii. 176), to bring in his prize for adjudication, but if this is impossible, his next duty is to destroy the enemy's property; if it be doubtful whether it be the enemy's property, and impossible to bring it in, no such obligation arises, and the

govern

1 Compare Bynkersh. Quæst. J. P. i. 4. The twenty-four hours' rule grew up in modern Europe, and is purely arbitrary. The rule that the prize must be carried infra præsidia was a Roman one; cujus juris non alia ratio est quam quod tunc omnis rei persequendæ et recuperandæ spes decollaverit.' Bynkersh. u. s.

2 Kent, i. 101, lect. v.

safe and proper course is to dismiss.' Of course, if this doctrine, based on English decisions, be true, destruction of neutral ships or property by mistake must be made good by the cruiser's government. (Note 13.)

§ 141.

By modern usage, a complete title to a prize taken at sea is given to the captor only by the sentence of a com- Complete title petent court. By a competent court is intended one given by a court. which by the law of the state has jurisdiction in matters pertaining to prize, no matter what other jurisdiction it may have or not have. Such courts in the United States are the district and circuit courts of the confederation, with appeal up through the circuit to the supreme court of the Union; such were in France, after 1659, the council of prizes, with appeal to the council of state, and thence to the royal council of finance; and such are, in the British dominions, the vice-admiralty and admiralty courts, from whom appeal lies to a committee of members of the privy council, known as the judicial committee. And, in general, the court must be one acting under the authority of the captor's sovereign, and holding its session at home or within the territory of an ally. A consul or ambassador residing abroad has no jurisdiction, it is held, in prize cases; and when the French government, in 1796, allowed their consuls and viceconsuls in neutral ports to decide such questions, Sir W. Scott declared it a thing unheard of. (Manning, p. 381; Heffter, § 138.) Neutrality is too delicate a thing to allow either the courts or territory of neutrals to be used in such cases.2 It is not necessary, however, that the prize itself should be conveyed into the ports of the captor's sovereign or of his ally, but if a neutral consents, it may be taken into a convenient port of that description. Such consent the neutral may give or withhold, as he judges best, and it is not generally withheld; but perhaps the strictest notion of what neutrality requires, and the true policy of neutrals, which is to render capture on the high seas as inconvenient as possible, demand of them to close their ports to prizes unless some urgent cause, as a storm or the vessel's condition, should render temporary sojourn there necessary. It will be the captor's right, if the neutral opens his ports, to carry their prizes taken from the neutral's own subjects as well as those belonging to any other nationality.

1 The doctrine is unsafe for neutrals, where the cruiser pertains to a belligerent de facto, attempting to become a nation, not to a lawful and acknowledged power. 2 Sir W. Scott knew of no instance where neutral courts exercised such jurisdiction, but Mr. Manning produces one from a treaty made between Denmark and Genoa in 1789. (P. 381.)