Page images

sume to interfere with the commercial regulations of other States.

The principle of the case of The Amadie was, that where the municipal law of the country to which the parties belonged had prohibited the trade, British 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 above three cases arose during the continuance of the war, and whilst the laws and treaties prohibiting the slave-trade were incidentally executed through the exercise of the belligerent right of visitation and search.

In the case of The Diana, Lord Stowell had sought to distinguish the circumstances of that case from those of The Amadie, so as to raise a distinction between the case of the subjects of a coun. try which had already prohibited the slave-trade, from that of those whose governments still continued to tolerate it. At last came the case of the French vessel called The Louis, captured aster the general peace, by a British cruiser, and condemned in the inferior Court of Admiralty. Lord Stowell reversed the sentence in 1817, discarding altogether the authority of The Amadie as a precedent, both upon general reasoning, which went to shake that case to its very foundations, and upon the special ground, that even admitting that the trade had been actually prohibited by the municipal laws of France, (which was doubtful,) the right of visitation and search (being an exclusively belligerent right) could not consistently with the law of nations be exercised, in time of peace, to enforce that prohibition by the British courts upon the property of French subjects. In delivering the judgment of the High Court of Admiralty in this case, Lord Stowell held that 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. A court of justice, in the administration of law, must look to the legal standard of morality — a standard which, upon a question of this nature, must be found in the law of nations as fixed, and evidenced by general, ancient, and admitted practice, by treaties, and by the general tenor of the laws, ordi. nances, and formal transactions of civilized States; and looking

Dodson's Admiralty Reports, vol. i. p. 95.

to these authorities, he found a difficulty in maintaining that the transaction was legally criminal. To make it piracy or a crime by the universal law of nations, it must have been so considered and treated in practice by all civilized States, or made so by virtue of a general convention.

The slave-trade, on the contrary, had been carried on by all nations, including Great Britain, until a very recent period, and was still carried on by Spain and Portugal, and not yet entirely prohibited by France. It was not, therefore, a criminal act by the consuetudinary law of nations; and every nation, independently of special compact, retained a legal right to carry it on. No nation could exercise the right of visitation and search upon the common and unappropriated parts of the ocean, except upon the belligerent claim. No one nation had a right to force its way to the liberation of Africa by trampling on the independence of other States; or to procure an eminent good by means that are unlawful; or to press forward to a great principle by breaking through other great principles that stand in the way. 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 British 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.1

The leading principles of this judgment were confirmed in 1820 by the Court of King's Bench, in the case of Madrazo v. Willes, in which the point of the illegality of the slave-trade, under the general law of nations, came incidentally in question. The court held that the British statutes against the slave-trade were applicable to British subjects only. 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 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 sanc. · tioned could only be rendered illegal on the principles of inter

1 Dodson's Admiralty Reports, vol. ii. p. 210.

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

1 Barnwell's and Alderson's Reports, vol. iii. p. 353.

[ocr errors][merged small][ocr errors][merged small][ocr errors]

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 thať 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, 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 persect 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 bad 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.'

II. The judicial power of every State extends to all $ 16. Extent of the civil proceedings, in rem, relating to real or personal projudicial power as to perty within the territory. within the This follows, in respect to real property, as a necesterritory. sary consequence of the rule relating to the application of the 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.?

. Dis

cedure as affec


is. A similar rule applies to all civil proceedings in rem, tinction be- respecting personal property (mobilia) within the territween the rule of deci- tory, which must also be regulated by the local law, rule of pro- with this qualification, that foreign laws may furnish

the rule of decision in cases where they apply, whilst cases in rem. the forms of process, and rules of evidence and prescription are still governed by the lex fori. Thus the lex domicilii forms the law in respect to a testament of personal property or succession ab intestato, if the will is made, or the party on whom the succession devolves resides, in a foreign country; whilst at the same time the lex fori of the State in whose tribunals the suit is pending determines the forms of process and the rules of evidence and prescription.

Succession Though the distribution of the personal effects of an to personal intestate is to be made according to the law of the place intestată. where the deceased was domiciled, it does not therefore follow that the distribution is in all cases to be made by the tribunals of that place to the exclusion of those of the country where the property is situate. Whether the tribunal of the State where the property lies is to decree distribution, or to remit the property abroad, is a matter of judicial discretion to be exercised


1 Wheaton's Rep. vol. X. p. 66. The Antelope.
2 Vide suprà, § 3, p. 116.

« ՆախորդըՇարունակել »