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"The Africans of the Amistad," New York Journal of Commerce,
September 5, 1839, p.2.
THE AFRICANS OF THE AMISTAD.--In looking over Kent’s Commentaries yesterday, we met
with several passages which have a bearing upon this case,--more or less remote,
according to the views taken of it by different persons,--and which we thought would
be acceptable to our readers, as few of them can be expected to have the work in
their possession. The extracts will correct some prevalent errors, if they do no
more.
No nation has any right of jurisdiction at sea, except it be over the persons of
its own subjects, in its own vessels; and so far territorial jurisdiction may be
considered as preserved; for the vessels of a nation are, in many respects considered
as portions of its territory, and persons on board are protected and governed by
the law of the country to which the vessel belongs. Vol. 1, p. 25.
It has sometimes been made a question how far our government was bound by the law
of nations, and independent of treaty, to surrender, upon demand, fugitives from
justice who, having committed crimes in one country, flee to another for shelter.
It is declared by some of the most distinguished public jurists, that every state
is bound to deny an asylum to criminals, and upon application and due examination
of the case, to surrender the fugitive to the foreign state where the crime was committed.
The language of the authorities is clear and explicit, and the law and usage of nations
rest on the plainest principles of justice. It is the duty of the government to surrender
up fugitives upon demand, after the civil magistrate shall have ascertained the existence
of reasonable grounds for the charge, and sufficient to put the accused upon his
trial. The guilty party cannot be tried and punished by any other jurisdiction than
the one whose laws have been violated, and, therefore, the duty of surrendering him
applies as well to the case of the subjects of the state surrendering as to the case
of subjects of the power demanding the fugitive. The only difficulty, in the absence
of positive agreement, consists in drawing the line between the class of offences
to which the usage of nations does, and to which it does not apply, inasmuch as it
is understood in practice, to apply only to crimes of great atrocity, or affecting
the public safety. The Act of the Legislature of New York of the 5th of April, 1822,
ch. 148, gave facility to the surrender of fugitives, by authorizing the Governor,
in his discretion on requisition from a foreign government to surrender up fugitives
charged with murder, forgery, larceny, or other crimes, which by the laws of this
State, were punishable with death or imprisonment in the State prison; provided the
evidence of criminality was sufficient, by our laws, to detain the party for trial
on a like charge. Such a legislative provision was requisite, for the judicial power
can do no more than cause the fugitive to be arrested and detained, until sufficient
means and opportunity have been afforded for the discharge of this duty to the proper
organ of communication with the power that makes the demand. vol. 1, p.
35, 36, 37.
It is of no importance for the purpose of giving jurisdiction, on whom or where a
piratical offence has been committed. A pirate, who is one by the law of nations,
may be tried and punished in any country where he may be found, for he is reputed
to be out of the protection of all laws and privileges. The statute of any government
may declare an offence committed on board its own vessels to be piracy, and such
an offence will be punishable exclusively by the nation which passes the statute.
But piracy, under the law of nations, is an offence against all nations, and punishable
by all. vol. 1. p. 185.
As the Act of Congress of 1790 declares every offence committed at sea to be piracy,
which would be punishable with death if committed on land, it may be considered as
enlarging the definition of piracy, so as not only to include every offence which
is piracy by the law of nations and the Act of Congress of 1819,* but other offences
which were not piracy until made so by statute. p.187.
The African slave trade is an offence against the municipal laws of most nations
of Europe, and it is declared to be piracy by the statute laws of England and the
U. States. vol. l. p. 191.
The Act of [of Congress] of March 3rd, 1819, . . . . . . authorised national armed
vessels to be sent to the coast of Africa, to stop the slave trade, so far as citizens
or residents of the United States were engaged in that trade; and their vessels and
effects were made liable to seizure and confiscation. The Act of 15th May, 1820,
went still further, and declared than [sic] if any citizen of the United States,
being of the crew of any foreign vessel engaged in the slave trade, or any person
whatever, being of any vessel armed in whole or in part, or navigated for or in behalf
of any citizen of the United States, should land on any foreign shore, and seize
any negro or mulatto, with intent to make him a slave, or should decoy, or forcibly
bring, or receive such negro on board such vessel, with like intent; or should forcibly
confine or detain on board, any negro or mulatto,not lawfully held to service, with
intent to make him a slave; or should on the high seas, or any tide water, transfer
or deliver over to any other vessel, any negro or mulatto, with like intent, such
citizen or person should be adjudged a pirate, and on conviction should suffer death.
It is to be observed, that the statute operates only where our municipal jurisdiction
might be applied consistently with the general theory of public law to the persons
of our citizens, or to foreigners on board of American vessels.
Declaring the crime piracy, does not make it so, within the purview of the law of
nations, if it were not so without the statute; and the legislature intended to legislate
only where they had a right to legislate over their own citizens and vessels. The
question, not withstanding these expressions in the statute, still remained to be
discussed and settled, whether the African slave trade could be adjudged piracy or
any other crime, within the contemplation of the code of international law. It has
been attempted, by negociation [sic] between this country and Great Britain, to agree
that both nations should consider the slave trade piratical; but the convention for
that purpose between the two nations has not as yet been ratified though the British
nation have carried their statute denunciation of the trade as far as the laws of
the United States. pp.193,194.
On page 196 and onwards, Chancellor Kent quotes several decisions of the English
Courts as to the legality of the slave trade on general principles of international
law, and adds,--
The doctrine in these cases is, that the slave trade, abstractedly speaking, is immoral
and unjust, and it is illegal when so declared by treaty or municipal law; but that
it is not piratical or illegal by the common law of nations, because, if it were
so, every claim founded on the trade would at once be rejected everywhere, and in
every court, on that ground alone. p. 198.
A decision by the British High Court of Admiralty to the same effect, and another
by the King’s Bench, are also stated. In the latter case, (Madrazo, vs. Willes)--
The court held, that the British statutes against the slave trade were only applicable
to the British subjects, and only rendered the slave trade unlawful when carried
on by them. The British Parliament could not prevent the subjects of other nations
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 is 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 can 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 cases had gone no further than to establish the rule, that the ships belonging
to countries that had prohibited the trade, were liable to capture and condemnation
if found engaged in it.
The final decision of the question in this country has been the same as in the case
of the Le Louis. [The case decided by the High Court of Admiralty above alluded
to.] In the case of LaJeune Eugenie, it was decided in the Circuit Court of
the United States, in Massachusetts, after a masterly discussion, that the slave
trade was prohibited by universal law. But subsequently, in the case of the Antelope,
the Supreme Court of the United States declared that the slave trade had been sanctioned,
in modern times, by the laws of all nations who possessed distant colonies; and a
trade could not be considered as contrary to the law of nations, which had been authorized
and protected by the usages and laws of all commercial nations. It was not piracy,
except so far as it was made so by the treaties or statutes of the nation to which
the party belonged. It might still be lawfully carried on by the subjects of those
nations who have not prohibited it by municipal acts or treaties. p. 100,
200
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*This last Act was of temporary duration and has expired. It made piracy “as defined
by the law of nations,” punishable with death.--Eds. J. C.
