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“The Captured Slaves,” The Richmond Enquirer, 10 Sept. 1839.
THE CAPTURED SLAVES
To the Editors of the Compiler.
Gentlemen- The articles which you sent me from the Northern papers, in relation
to the persons in custody for offenses alleged to have been committed on board a
Spanish vessel, suggest several questions of a good deal of interest.
If these persons are charged with having committed on the high seas the crime of
piracy, as defined by the law of nations, there is no doubt that they may be tried
before a Circuit Court in the Unites States. If they had been found in this country,
the trial would have been in the Circuit Court for that district in which they were
found. Being brought into the U. States, the trial takes place before the Circuit
Court for the district into which they were first brought.
I apprehend, however, that the offence really committed is not an offence against
all nations, and like piracy punishable by any. The fact charged seems to be murder
and robbery on board of a ship belonging exclusively to the subjects of a foreign
State; and it appears to be an offence only against the nation, on board whose vessel
the murder and robbery have been committed, and punishable exclusively by that nation.
It would be otherwise, if subsequently the persons on board the vessel had thrown
off its national character, cruised piratically and committed piracy on other vessels.
Then again, the offenders would be persons who might be tried as pirates in the courts
of the Union. But I do not see any thing of this kind any where alleged. It is scarcely
necessary to add,that in the view I take of the case, the trial for piracy in the
courts on the Union must result in an acquittal.
When thus acquitted, they will no doubt be claimed as the property of the Spanish
subjects. Whether or not the Court of the U.S. will recognize them as property, will
depend on whether they appear to be property according to the laws of Spain. Questions
of this sort are not new in this country. The strongest case on the subject is that
of the Antelope-10 Wheat, 66.
The material facts of that case were as follow: A privateer called the Columbia,
sailing under a Venezuelan commission, entered the port of Baltimore in the year
1819; clandestinely shipped a crew of thirty or forty men; proceeded to sea; hoisted
the Artagan flag, assuming the name of the Arraganta; and prosecuted a voyage along
the coast of Africa, her officers and the greater part of her crew being citizens
of the United States. Off the coast of Africa, she captured an American vessel from
Bristol, in Rhode Island, from which she took twenty five Africans. She captured
several Portuguese vessels, from which she also took Africans. And she captured a
Spanish vessel, called the Antelope, in which she took a considerable number of Africans
-The two vessels then sailed in company to the coast of Brazil, where the Arraganta
was wrecked , and her master, Metcalf, and a great part of her crew, made
prisoners. The rest of the crew, with the armament of the Arraganta, were transferred
to the Antelope, which thus armed, assumed the name of the General Ramirez, under
the command of John Smith, a citizen of the United States. On board this vessel were
all the Africans which had been captured by the privateer in the course of her voyage.
The vessel, thus freighted, was found hovering near the coast of the United States
by the revenue cutter Dallas, under the command of Captain Jackson, and finally brought
into the port of Savannah for adjudication. The Africans, at the time of her capture,
amounted to upwards of two hundred and eighty. On their arrival, the vessel and the
Africans were libelled and claimed by the Portuguese and Spanish Vice Consuls, reciprocally.
The case was carried up to the Supreme Court of the United States, and there argued
by Mr. Berrien and Mr. Chas. J. Ingersoll in favor of the claimants,
and by Mr. Wirt and Mr. Key on behalf of the U. States. The U.S. asserted
no property in themselves, but insisted on the right of the Africans to freedom.
The Consuls of Spain and Portugal respectively demanded them as slaves; who had,
in the regular course of legitimate commerce, been acquired as property by the subjects
of their respective sovereigns. Chief Justice Marshall delivered the opinion
of the Court, in which he reviewed the decisions of the English Court of Admiralty,
and laid it down as the principle of those decisions, “that the legality of the capture
of a vessel engaged in the slave trade depends on the law of the country to which
the vessel belongs. If that law gives its sanction to the trade, restitution will
be decreed; if that law prohibits it, the vessel and the cargo will be condemned
as good prize.”
[The court below had directed restitution to the Spanish claimant of such of the
Africans as were found on board the Antelope, when she was captured by the Arraganta.
But the Supreme Court was of opinion, that the Court below erred in considering that
there were one hundred and sixty six on board the Antelope when she was captured.
The Supreme Court deemed the proof was not satisfactory beyond ninety-three. The
individuals who composed this number were required to designated to the satisfaction
of the Circuit Court- The Vice Consul of Portugal failed in showing to the satisfaction
of the Supreme Court, that any of the Africans were taken out of Portuguese vessels,
or were the property of subjects of the King of Portugal. And the result was, that
all the Africans under the control of the Court, except those which might be designated
as the property of the Spanish claimant, were delivered up to the United States.]
The decision in the case of the Antelope was made some years since the act of Congress,
making it piracy for a person to be engaged in the slave trade who is a citizen of
the U.S., or one of the crew of a vessel owned or navigated for citizens of the U.S..
It was considered that the legislation of this country on this subject operated only
on its own citizens and vessels-that one nation could not prescribe a rule for other
nations- and of course that one nation could not make a law of nations.
In the present case, the persons detained on board the vessel as slaves are said
to have come from a Spanish Island, and to have been legally held as slaves by the
laws of Spain. How the fact will turn out, I do not know, and therefore say anything
about.
C.R.
ADDENDA.
For the Enquirer.
The celebrated speech of Mr. Marshall, delivered in the House of Representatives of the United States upon the resolutions relative to Thomas Nash alias Jonathan Robins, supports the correctness of the conclusion, (in the article to Monday's Compiler,) that the offence which has been committed, is punishable by only the Spanish nation. The following extracts are from that speech:
"The principle is, that the juristiction of a nation extends to the whole of its territory, and to its own citizens in every part of the world."
"According to this practice of the world, and the opinions of writers on the law of nations, the murder committed on board a British frigate navigating the high seas, was a murder within the jurisdiction of the British nation."
"The proposition that the United States has no jurisdiction over the murder committed by Thomas Nash, is believed to be completely demonstrable."
"Suppose a duel attended with death in the fleet of a foreign nation, or in any vessel which returned safe to port, could it be pretended that any Government on earth, other than that to which the fleet or vessel belonged, had juristdiction in the case; or that the offender could be tried by the laws or tibunals of any other nation what ever?"
"The right of every nation to punish is limited in its nature to offences against the nation inflicting the punishment. This principle is believed to be universally true."
"It comprehends every possible violation of its laws on its own territory, and it extends to violations committed elsewhere by perons it has a right to bind. It extends also to general piracy."
"A pirate, under the law of nations, is an enemy of the human race. Being the enemy of all, he is liable or punished by all. Any act which denotes this universal hostility, is an act of piracy. Not only an actual robbery, therefore, but cruising on the high seas, without commission and with intent to rob, is piracy. This is an offence against all and every nation, and is therefore alike punishable by all. But and offence which in its nature affects only a particular nation, is only punishiable by that nation."
"It is by confounding generaly piracy with pircy by statute, that indistinct ideas have been produced, respecting the power to punish offences committed on the high seas."
"A statue may make any offence piracy, committed within the jurisdiction of the nation passing the statute, and such offence will be punishable by that nation. But piracy, under the law of nations which alone is punishable by all nations, can only consist in an act which is an offence against all. No particular nation can increase or dimish the list of offences thus punishable."
"It had been observed by this colleague (Mr. Nicholas ) for the purpose of showing that the distinction taken on this subject by the gentleman form Delaware (Mr. Bayard ) was inaccutate -- that any vessel robbed on the high seas, could be the property only of a single nation, and being only an offence against that nation, could be, on the principle taken by the opposers of the resolutions, no league had not accurately considered the principle. As from a stranger his purse, with a pistol at his bosom, is not the particular enemy of that stranger, but alike the enemy of every man who carries a purse; so those, who, without a commission, rob on the high seas, manifest a temper hostile to all nations, and therefore become the enemies of all. The same inducements which occasion the rovvery of one vessel, exist to occasion the robbery of others; and, therefore, the single offence is an offence against the whole community of nations, manifests a temper hostile to all, is the commencement of an attck on all, and is, consequently, of right, puishable by all."
"The gentleman from Pennsylvania (Mr. Gallatin ) admits, that no nation has a right to puish offences against another nation, and that the U. States can only puish offences against their own laws and the law of nations. He admits, too, that, if there had only been a mutiny (and consequently, if there had only been a murder) on board the Hermione, that the American courts could have taken no cognizance of the crime. yet mutiny is puishable as piracy by the law of both nations. That gentleman contends, that the act committed by Nash was piracy, according ot the law of antions. He supports his position by insisting that the offence may be constituted by the commission of a single act -- that unauthorized robbery on the high seas, is this act -- and that the crew having seized the vessel, and being our of the protection of any nation, were pirates."
"It is true, tht the offence may be completed by a single act; but it depends on the nature of that act. It is by such as manifests general hostility against the world -- and intention to rob generally, then it is piracy; but if purpose of delivering it up to the enemy, it seems to by an ofence against a single nation and not to be piracy. The sole object of the crew might be to go over to the enemy or to free themselves from the tyranny experienced on board a ship of war and not to rob gererally."
The decisions of the Supreme court of the U.S. in the cases, which have gone before that Court, are in conformity with the doctrines laid down in this argument.
The other question, adverted to in the article in the Compiler -- that of property -- it is stated in that article, must be decided according to the laws of Spain. It is believed, that there is a treaty between Great Britain and Sapin for the suppression of the slave trade. If the persons who are in custody have been brought from Africa in a vessel engaged in a traffic of slaves, in violation of that treaty, and the vessel has been brought for adjudication, before a commission organized under the treaty, and been condemned, then it is supposed they must have received from the commission a certificate of emancipation. The probability, however, is, that the vessel in which these persons were brought from Africa, has never been before the commission for adjudication; that they have been landed upon a Spanish island and there sold, and that at the time they overpowered the crew of the vessel, it was engaged in transporting them for thier new purchasers. We must be informed as to the law prevailing in the Spanish islands since the treaty between Great Britiain and Spain, in reference to the actual state of facts, before we can say, whether these persons are, according to the laws of Spain, free or slaves.
C.R.
