the law of nations, in the courts of any nation having custody of the offenders.1

Slave

trade, whe

ther prohi

law of na

The African slave trade, though prohibited by the municipal laws of most nations, and declared to be bited by the piracy by the statutes of Great Britain and the United tions. States, and, since the Treaty of 1841, with Great Britain, by Austria, Prussia, and Russia, is not such by the general international law, and its interdiction cannot be enforced by the exercise of the ordinary right of visitation and search. That right does not exist, in time of peace, independently of special compact.2

The African slave trade, once considered not only a lawful but desirable branch of commerce, a participation in which was made the object of wars, negotiations, and treaties between different European States, is now denounced as an odious crime, by the almost universal consent of nations. This branch of commerce was, in the first instance, successively prohibited by the municipal laws of Denmark, the United States, and Great Britain, to their own subjects. Its final abolition was stipulated by the treaties of Paris, Kiel, and Ghent, in 1814, confirmed by the declaration of the Congress of Vienna, of the 8th of February, 1815, and reiterated by the additional article annexed to the treaty of peace concluded at Paris, on the 20th November, 1815. The accession of Spain and Portugal to the principle of the abolition was finally obtained, by the treaties between Great Britain and those powers, of the 23d September, 1817, and the 22d January, 1815. And by a convention concluded with Brazil, in 1826, it was made piratical for the subjects of that country to be engaged in the trade after the year 1830.

By the treaties of the 30th November, 1831, and 22d May, 1833, between France and Great Britain, to which nearly all the maritime powers of Europe have subsequently acceded, the mutual right of search was conceded, within certain geographical limits, as a means of suppressing the slave trade. The pro

1 Wheaton's Rep. vol. v. pp. 144, 184. United States v. Klintock; United States v. Pirates.

2 Dodson's Adm. Rep. vol. ii. p. 210. Le Louis. Wheaton's Rep. vol. x. p. 66. La Jeune Eugenie. [The Treaty of 1817, with Spain, was the first one in which the reciprocal right of search was granted.]

visions of these treaties were extended to a wider range by the Quintuple Treaty, concluded on the 26th December, 1841, between the five great European powers, and subsequently ratified between them, except by France, which power still remained only bound by her treaties of 1831 and 1833 with Great Britain. By the treaty concluded at Washington, the 9th August, 1842, between the United States and Great Britain, referring to the 10th article of the Treaty of Ghent, by which it had been agreed that both the contracting parties should use their best endeavors to promote the entire abolition of the traffic in slaves, it was provided, article 8, that "the parties mutually stipulate that each shall prepare, equip, and maintain in service, on the coast of Africa, a sufficient and adequate squadron, or naval force of vessels, of suitable numbers and descriptions, to carry in all not less than eighty guns, to enforce, separately and respectively, the laws, rights, and obligations of each of the two countries, for the suppression of the slave trade, the said squadrons to be independent of each other, but the two governments stipulating, nevertheless, to give such orders to the officers commanding their respective forces, as shall enable them most effectually to act in concert and coöperation, upon mutual consultation, as exigencies may arise, for the attainment of the true object of this article; copies of all such orders to be communicated by each government to the other, respectively." By the Treaty of the 29th May, 1845, between France and Great Britain, new stipulations were entered into between the two powers, by which a joint coöperation of their naval forces on the coast of Africa, for the suppression of the slave trade, was substituted for the mutual right of search, provided by the previous treaties of 1831 and 1833. (a)

(a) [Ortolan distinguishes the right of ships of war to ascertain the nationality of a merchantman, droit d'enquête du pavillon, from the right of visitation or search, droit de visite ou de recherche. Signals, exchange of words, suffice with respect to the nationality of the flag, except on suspicion of piracy, when all further proceedings must be taken at the risk of the man-of-war. He unites with the American publicist, Mr. Wheaton, in declaring that the right of visitation or search does not exist except in time of war, and he then confines the right to ascertaining the nationality of the ship and whether there be any contraband articles on board. The right of visit or search being accorded by special conventions, between different States, does not make it a part of the Law of Nations. The

Decisions of British

can courts

This general concert of nations to extinguish the and Ameri- traffic has given rise to the opinion, that though once of justice. tolerated, and even protected and encouraged, by the laws of every maritime country, it ought henceforth to be considered as interdicted by the international code of Europe and

Conventions of 1831 and 1833, made by France with England, for the suppression of the slave trade, as well as the Quintuple Treaty of 1841, are all in derogation of natural right. Every nation has a right to exercise an exclusive police, at sea, over its own vessels. Diplomatie de la Mer, p. 242.

Hautefeuille says that la visite is not a right, but the exercise of the belligerent claim of injuring the enemy, which cannot exist in time of peace except as a violation of the independence of nations. In war, it only exists to ascertain whether the vessel belongs to an enemy; or, if not an enemy's vessel, whether it has contraband on board destined for an enemy's port. Those nations which regard enemy's property on board of neutral vessels as liable to confiscation, a pretension which he denies, extend it to the verification of the cargo. Several treaties among European nations, for the suppression of the slave trade, have admitted the reciprocal right of visitation in time of peace; and some of them have extended it to the right of search, which no formal treaty had acknowledged, even in time of war. The right of visit, he defines to be the power granted to a foreign ship of war, to stop a vessel and to go on board of her, and verify, by her papers, if she belongs really to the nation whose flag she bears. This right, Hautefeuille conceives still to be conceded by the Treaty of 29th May, 1845, between France and England, concluded to replace those of 1831 and 1833 and especially the Quintuple Treaty of 1841, which France refused to ratify. The construction objected to has, it is believed, been obviated by the instructions given to the British commanders, not to capture, visit, or detain French vessels. Droits des Nations Neutres, t. iii. p. 431. Public Documents.

See, further, on the subject of a right of visitation and search, in time of peace, "An Inquiry into the validity of the British Claim to a Right of Visitation and Search, of American Vessels suspected to be engaged in the African Slave Trade,” by Mr. Wheaton: London, 1842; and "Examen de la Question aujourd'hui pendante entre le Gouvernement des États Unis et celui de la Grande Bretagne, concernant le Droit de Visite," (ascribed to Hon. Lewis Cass, then Minister to France,) Paris, 1842. These Essays, with the Letter of General Cass to M. Guizot, dated 13th February, 1842, and which was in the nature of a protest against the Quintuple Treaty of 20th December, 1841, are understood to have had no little influence in preventing the ratification of that treaty by the government of France. The provisions respecting the slave trade in the Treaty of Washington, of 1842, were intended to waive the questions, as to which a serious controversy had existed between the United States and Great Britain, in consequence of the latter claiming a right of detaining vessels, suspected to be engaged in the slave trade, for the purpose of ascertaining their nationality. See, with reference to that treaty and the discussions to which it gave rise, Webster's Works, vol. v. p. 142; vol. vi. p. 329.]

America. This opinion first received judicial countenance from the judgment of the Lords of Appeal in Prize Causes, pronounced in the case of an American vessel, The Amadie, in 1807, the trade having been previously abolished by the municipal laws of the United States and of Great Britain. The judgment of the Court was delivered by Sir William Grant, in the following terms:

"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 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."1

In the case of The Fortuna, determined in 1811, in the High Court of Admiralty, Lord Stowell, in delivering 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 Amadie 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 Amadie 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

1 Acton's Admiralty Reports, vol. p. 240.