If a ship be acting contrary to the general law of nations, she is thereby subject to condemnation; but it was impossible to say that the slave-trade is contrary to the law of nations. It was, until lately, carried on by all the nations of Europe; and a practice so sanctioned could 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 adjudged cases had gone no farther 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. (a)87

§ 133. A similar course of reasoning was adopted by The Anthe Supreme Court of the United States in the case of telope. Spanish and Portuguese vessels captured by American cruisers, whilst the trade was still tolerated by the laws of Spain and Portugal.88 It was stated by Mr. Chief Justice Marshall, in delivering

forfeiture. In The Amedie, the claim was rejected because the slave trade, though not universally illegal, or piracy jure gentium, was illegal by the law of the claimant's country. In The Louis, the claim was sustained, because the slave trade was neither illegal by the law of nations, nor by the law of the claimant's country.

It may be and probably is true, that British cruisers made use of their belligerent right of search to discover slaves, and took advantage of the severe and summary rules of war tribunals to secure the condemnation of their prizes; but this is only saying that they made an undue use of opportunities which the criminality of their antagonists put in their power, and does not touch the law decided.

The result is, that the precedents, from The Amedie to The Louis, will be found consistent with each other, and with the rules of prize courts, and with the law of nations as to the slave trade.] - D.

(a) Barnwell's & Alderson's Reports, iii. 353.

[87 Madrazo v. Willes has since been confirmed by the decision of the Exchequer Chamber in the case of Santos v. Illidge.] - D.

[88 The Antelope. Slave Trade. — The Antelope, Wheaton's Rep. x. 66, was not a prize case, but one for civil forfeiture. The general doctrines of the case, as applied to a slave trader, may be stated thus: (1) A cruiser of a State which prohibits the slave trade cannot search or seize a foreign vessel at sea on suspicion of being engaged in that trade. (2) If that is done, and the vessel comes under cognizance of the court of the cruiser's sovereign, its general duty is to treat the vessel as if she had not been seized, and to restore her. (3) In making restitution, the court may look beyond possession, and inquire into right. It will do this, and will reject the claim of the original and prior captors from whose possession the vessel was wrongfully taken, and treat their capture also as if it had not been made, if it appears that they made ostensibly a belligerent capture, but equipped themselves for their cruise in violation of the neutrality laws of the nation to which the court belongs. (4) Coming back thus to the owners from whom the first capture was made, the court may look beyond their possession and inquire into their title. If they are foreigners, and their nation allows the slave trade, in which their vessel is found to be engaged, and their private titles are sufficiently proved, restitution is made to them. If they are citizens of a nation

the judgment of the court, that it could hardly be denied that the slave-trade was contrary to the law of nature. That every man had a natural right to the fruits of his own labor, was generally admitted; and that no other person could rightfully deprive him of those fruits, and appropriate them against his will, seemed to be the necessary result of this admission. But, from the earliest times, war had existed, and war conferred rights in which all had acquiesced. Among the most enlightened nations of antiquity, one of these rights was, that the victor might enslave the vanquished. That which was the usage of all nations could not be pronounced repugnant to the law of nations, which was certainly to be tried by the test of general usage. That which had received the assent of all must be the law of all.

Slavery, then, had its origin in force; but as the world had agreed that it was a legitimate result of force, the state of things which was thus produced by general consent could not be pronounced unlawful.

Throughout Christendom this harsh rule had been exploded, and war was no longer considered as giving a right to enslave captives. But this triumph had not been universal. The parties to the modern law of nations do not propagate their principles by force; and Africa had not yet adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves. The question then was, could those who had renounced this law be permitted to participate in its effects by purchasing the human beings who are its victims ?

Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution in those principles which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself a part, and to whose law the appeal is made. If we resort to this standard as the test of international law, the question must be considered as decided in favor of the legality of the trade. Both Europe and America embarked in it; and for nearly two centuries, whose laws prohibit the trade, the slaves are treated as that law requires. On the first part of this proposition— the restoration of slaves to foreigners whose laws allow the trade the court was equally divided. The reasons for the division, and the exact nature of it, are withheld by the court; but the division operated to confirm the decree of the court below, which was of restitution to the foreigners so claiming.]-D.

it was carried on without opposition, and without censure. A jurist could not say that a practice thus supported was illegal, and that those engaged in it might be punished, either personally or by deprivation of property.

In this commerce, thus sanctioned by universal assent, every nation had an equal right to engage. No principle of general law was more universally acknowledged, than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality, that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which was vested in all by the consent of all, could be devested only by consent; and this trade, in which all had participated, must remain lawful to those who could not be induced to relinquish it. As no nation could prescribe a rule for others, no one could make a law of nations; and this traffic remained lawful to those whose governments had not forbidden it. ·

If it was consistent with the law of nations, it could not in itself be piracy. It could be made so only by statute; and the obligation of the statute could not transcend the legislative power of the State which might enact it.

If the trade was neither repugnant to the law of nations, nor piratical, it was almost superfluous to say in that court that the right of bringing in for adjudication, in time of peace, even where the vessel belonged to a nation which had prohibited the trade, could not exist. The courts of justice of no country executed the penal laws of another; and the course of policy of the American. government on the subject of visitation and search, would decide any case against the captors in which that right had been exercised by an American cruiser, on the vessel of a foreign nation, not violating the municipal laws of the United States. It followed that a foreign vessel engaged in the African slave-trade, captured on the high seas in time of peace, by an American cruiser, and brought in for adjudication, would be restored to the original owners. (a)

(a) Wheaton's Rep. x. 66, The Antelope.

[89 Slave Trade. Visit and Search. - The entire subject of the slave trade, in its international relations, may now be summed up in three principal aspects, referring to previous notes, Nos. 85, "Slave Trade as Piracy," and 86 and 88 :

First, ITS JUDICIAL ASPECT. It has been shown in the notes of the editor (ante, notes Nos. 85 and 86), that no English court has held the slave trade to be piracy jure gentium. In The Amedie, it was only said that it was primâ facie an illegal trade

Extent of § 134. II. The judicial power of every State extends the judicial to all civil proceedings in rem, relating to real or personal within the property within the territory.

powers as to

territory.

This follows, in respect to real property, as a necessary consequence of the rule relating to the application of the

everywhere; and, when a person claimed to have redelivered to him negroes, or the value of negroes, whom he was transporting from Africa into slavery, the burden was on him to prove that his nation permitted that trade. In the United States, there was a conflict in the inferior tribunals; but the Supreme Court, in The Antelope, decided that the trade was not piracy jure gentium. As to the right of search and bringing in for trial, that has, in the courts of both countries, followed the test of piracy jure gentium, and been excluded. No doubt has been suggested that the American courts have denied, all right of search, unless for piracy jure gentium. That right was held to be inseparable from a right to bring in for adjudication, and could be used for no purpose for which the court had not jurisdiction, as it unquestionably had not over foreign vessels on the high seas, where neither war nor piracy was involved. It has been thought that the English courts have asserted a right of search, while they admitted that the trade was not piracy jure gentium. The examination of the cases in note No. 86, ante, shows, it is hoped, that no such right of search has been supported by those courts. There is no case to be found in which an English court of the last resort has directly decided, that, in time of peace, when there was no color of belligerent right, a British cruiser could search a foreign vessel on the ground of suspicion of being a slaver; and, in the cases of civil proceedings, as The Diana and Louis, the seizure was considered illegal. No case has been found where, either in England or the United States, a distinction has been sustained by the court between a right of visit and a right of search.

Second, IN THE OPINIONS OF STATESMEN AND JURISTS. The statesmen of America, in their diplomatic correspondence, have always contended that a state of things had not been reached which entitled all nations to treat the slave trade as piracy jure gentium. This has been the opinion of the American commentators, Wheaton, Kent, Halleck, and Woolsey. As to the right of search, our statesmen and jurists have agreed that a right of search did not exist, and that no distinction in principle existed between a right to visit and a right to search. Mr. Webster, Mr. Wheaton, Mr. Cass, Mr. Legare, Mr. Stevenson, and Mr. Seward have severally discussed this subject, in their official action, and have agreed in the reasoning, that no nation can exercise police jurisdiction over private vessels of other nations on the high seas; that such jurisdiction is limited to international questions of war or of piracy jure gentium; that the right to detain and search vessels of other nations at sea was only a means of enforcing a jurisdiction admitted, that is, in international matters of war or of piracy jure gentium. They denied all distinction in principle between visit and search, as rights, though the two things might be very different in their effects. If the visit is for the purpose for which search is allowed, — that is, in case of war or piracy, it is justifiable as a part of the process of investigation. A right to visit without the right to require production of papers or persons, or to make any examination, is futile, even if the purpose is to ascertain only national character, and not guilt or innocence; and any right to compel production of papers or persons, or to subject to interrogation, or to make examination of parts of a vessel, is a right of search. A right to stop a foreign vessel and visit her must carry the right to use the requisite force, if the exercise of the right is resisted. If not, it is not a right in any

lex loci rei sitæ. As every thing relating to the tenure, title, and transfer of real property (immobilia) is regulated by the local law, so also the proceedings in courts of justice relating to that species of property, such as the rules of evidence and of prescription, the forms of action and pleadings, must necessarily be governed by the same law. (a)

sense worth disputing. The question, then, is on a right, forcibly if necessary, to stop and board foreign vessels, and to make some kinds of inquiries and examinations. The only defence made for the right of visit, by those who disclaim a right of search, is, that the purpose of the visit is to verify the national character of the vessel, and ascertain whether she belongs to the same nation with the cruiser, or to one with which that nation has treaties giving a right of search; in order that, if so, the cruiser may search or detain, or otherwise deal with, such vessel as the law of his country or the treaties may allow; while, if she turns out to belong to another power which has given no right of search, it will be his duty to release her, whatever the evidence of her guilt. But, apart from the consideration that visit without search, even for the limited purpose described, is futile and a mere annoyance, the ground is taken, that all visiting or detaining or searching by compulsion, exercised by a cruiser upon a vessel of another power, is a violation of right, except where there is agreement; and that the consensus gentium has extended it only to war, and crimes against all nations. A right to visit, subject to a duty to make apology and reparation in case the vessel turns out to be one not subject to visit, is not a right at all, but an admission that the visit was against right.

The British Government, in former times, have claimed and exercised a right to search vessels suspected of being slavers. No exact limits to the right were laid down or regarded, whether as confined to ascertaining nationality, or as extending to proofs of guilt or innocence. Lord Palmerston, in reply to Mr. Stevenson, Aug. 27, 1841, avowed the intention of Great Britain to stop vessels of all nations on suspicion of being engaged in the slave trade; limiting the examination to the verifying of the national character the vessel may assume, and ascertaining whether she is "navigated according to law." That he claimed as a right. It was resisted by Mr. Stevenson, in his reply. Lord Aberdeen's rejoinder of Oct. 13, 1841, adhered to the claim of right, promising only safeguards against its abuse; and the further correspondence between Lord Aberdeen and Mr. Everett did not vary the posture of the case. The treaty of 1842 closed the discussion for the time. Art. 8 of that treaty is a stipulation for a naval force of each country "to enforce, separately and respectively, the laws, rights, and obligations of each of the two countries." It was understood that Great Britain practically waived the claim while the treaty remained in force.

In 1858, British cruisers had stopped American vessels off the island of Cuba, and made some examination, slight to be sure, as to their destination and national character. The American Government at once called the attention of Great Britain to the subject; and Lord Derby's Government took the opinion of the law-officers of the crown as to a right of visit or search, either or both, in time of peace. That opinion was decidedly that no right existed, in time of peace, to stop, visit, or search. After receiving this opinion, the British Government answered to the United States that they claimed no right either to visit or search; and, suggesting the frequent cases of the abuse of the American flag by slavers, and the safety this state of the law practically gave them, requested the American Government to suggest some mode by (a) Vide supra, § 81.