in the case of an American vessel, The Amedie, in 1807, the trade § 128. The judgment of the court was delivered by Sir The Amedie. "This ship must be considered as being employed, at the time of capture, in carrying slaves from the coast of Africa to a Spanish colony. We think that this was evidently the original plan and other powers In 1850, Great Britain stood a party to twenty-four treaties for the suppression of By the treaty of Washington of 1842 (commonly called the Ashburton Treaty), a provision was made for naval co-operation: the United States declining to agree to a right of search, however limited, or to mixed tribunals. But the subject is now practically settled between the two nations by the treaty of 7 April, 1862, negotiated by Mr. Seward and Lord Lyons. The chief provisions of this treaty are as follows: The right to detain, search, seize, and send in for adjudication, is confined to cruisers of either power, expressly authorrized for that purpose; and is to be exercised only over merchant-vessels, and only within a distance of two hundred and twenty miles from the coast of Africa, and to the southward of thirty-two degrees north latitude, and within thirty leagues from the island of Cuba, and never within the territorial waters of either contracting power. The right to visit is to be exercised where there is "reasonable ground" to suspect a vessel of having been fitted out for, or engaged in, the trade. The only slave trade referred to is the "slave trade upon the coast of Africa," or the " African slave trade." To secure responsibility and freedom from vexation, special provisions are made as to exhibiting written authority, with names of the cruiser and her commander; entries on log-books, requiring the boarding-officers and commanders of authorized cruisers to be of a certain rank in the navy; providing exchange of notifications between the two powers of the names of vessels and commanders employed, and as to the course to be pursued in case of convoy, &c.; and stipulations that each power will make indemnification for losses to vessels arbitrarily and illegally detained. As to what Shall constitute reasonable suspicion, certain articles or arrangements found on board are specified as authorizing a bringing in for adjudication, and as affording protection against claims for damages, and as primâ facie evidence of being in the trade, and as authorizing condemnation of the vessel, unless clear and incontrovertible evidence is adduced that they were engaged in legal business. Mixed tribunals are constituted for adjudication upon the vessels, but persons are to be sent home to their respective jurisdictions to be tried. Vessels condemned by the tribunals are to be broken up, unless either government takes them for its navy, at an appraisement; and the negroes found on board are to be delivered to the State whose cruiser made the capture, and to be by that State set free. U. S. Laws, xii. 279.]— D. purpose of the voyage, notwithstanding the pretence set up to veil the true intention. The claimant, however, who is an American, complains of the capture, and demands from us the restitution of property, of which, he alleges, that he has been unjustly dispossessed. In all the former cases of this kind which have come before this court, the slave-trade was liable to considerations very different from those which belong to it now. It had, at that time, been prohibited (so far as respected carrying slaves to the colonies of foreign nations) by America, but by our own laws it was still allowed. It appeared to us, therefore, difficult to consider the prohibitory law of America in any other light than as one of those municipal regulations of a foreign State of which this court could not take any cognizance. But by the alteration which has since taken place, the question stands on different grounds, and is open to the application of very different principles. The slave-trade has since been totally abolished by this country, and our legislature has pronounced it to be contrary to the principles of justice and humanity. Whatever we might think, as individuals, before, we could not, sitting as judges in a British court of justice, regard the trade in that light while our own laws permitted it. But we can now assert that this trade cannot, abstractedly speaking, have a legitimate existence. "When I say abstractedly speaking, I mean that this country has no right to control any foreign legislature that may think fit to dissent from this doctrine, and to permit to its own subjects the prosecution of this trade; but we have now a right to affirm that prima facie the trade is illegal, and thus to throw on claimants the burden of proof, that, in respect of them, by the authority of their own laws, it is otherwise. As the case now stands, we think we are entitled to say that a claimant can have no right, upon principles of universal law, to claim the restitution in a Prize Court of human beings carried as slaves. He must show some right that has been violated by the capture, some property of which he has been dispossessed, to which he ought to be restored. In this case, the laws of the claimant's country allow of no property such as he claims. There can, therefore, be no right to restitution. The consequence is, that the judgment must be affirmed." (a) (a) Acton's Admiralty Reports, i. 240. § 129. In the case of The Fortuna, determined in 1811, The Forin the High Court of Admiralty, Lord Stowell, in deliver- tuna. ing the judgment of the court, stated that an American ship, quasi American, was entitled, upon proof, to immediate restitution; but she might forfeit, as other neutral ships might, that title, by various acts of misconduct, by violations of belligerent rights most clearly and universally recognized. But though the Prize Court looked primarily to violations of belligerent rights as grounds of confiscation in vessels not actually belonging to the enemy, it had extended itself a good deal beyond considerations of that description only. It had been established by recent decisions of the Supreme Court, that the Court of Prize, though properly a court purely of the law of nations, has a right to notice the municipal law of this country in the case of a British vessel which, in the course of a prize-proceeding, appears to have been trading in violation of that law, and to reject a claim for her on that account. That principle had been incorporated into the prize-law of this country within the last twenty years, and seemed now fully incorporated. A late decision in the case of The Amedie seemed to have gone the length of establishing a principle, that any trade contrary to the general law of nations, although not tending to, or accompanied with, any infraction of the law of that country whose tribunals were called upon to consider it, might subject the vessels employed in that trade to confiscation. The Amedie was an American ship, employed in carrying on the slave-trade; a trade which this country, since its own abandonment of it, had deemed repugnant to the law of nations, to justice, and humanity; though without presuming so to consider and treat it where it occurs in the practice of the subjects of a State which continued to tolerate and protect it by its own municipal regulations; but it put upon the parties the burden of showing that it was so tolerated and protected, and in failure of producing such proof, proceeded to condemnation, as it did in the case of that vessel. judgment has been universally concurred in and tinued Lord Stowell, " is not for me to inquire. who disapprove of it, I certainly am not at liberty to include myself in that number, because the decisions of that court bind authoritatively the conscience of this; its decisions must be conformed to, and its principles practically adopted. The principle laid down in that case appears to be, that the slave-trade, carried on by a vessel belonging "How far that approved," conIf there be those to a subject of the United States, is a trade which, being unprotected by the domestic regulations of their legislature and government, subjects the vessel engaged in it to a sentence of condemnation. If the ship should therefore turn out to be an American, actually so employed-it matters not, in my opinion, in what stage of the employment, whether in the inception, or the prosecution, or the consummation of it- the case of The Amadie will bind the conscience of this court to the effect of compelling it to pronounce a sentence of confiscation." (a) The Di ana. § 130. In a subsequent case, that of The Diana, Lord Stowell limited the application of the doctrine invented by Sir W. Grant, to the special circumstances which distinguished the case of The Amedie. The Diana was a Swedish vessel, captured by a British cruiser on the coast of Africa whilst actually engaged in carrying slaves to the Swedish West-India possessions. The vessel and cargo were restored to the Swedish owner, on the ground that Sweden had not then prohibited the trade by law or convention, and still continued to tolerate it in practice. It was stated by Lord Stowell, in delivering the judgment of the High Court of Admiralty in this case, that 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, 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. (a) 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. The Louis. § 131. In the case of The Diana, Lord Stowell had sought to distinguish the circumstances of that case from those of The Amedie, so as to raise a distinction between the case of the subjects of a country which had already prohibited the (a) Dodson's Admiralty Reports, i. 81. (a) Ibid. 95. 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 after 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 Amedie, 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, ordinances, and formal transactions of civilized States; and looking 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 |