(C.)

Cases referred to in the argument of the Antelope.

THE AMEDIE, 1 Acton's Rep. 240.

This was an American vessel, captured by a British cruiser, in the latter part of the year 1807, on her way from Bonny, on the coast of Africa, to Matanzas, in the island of Cuba, with 105 slaves on board. She was libelled in the Vice-Admiralty Court of Tortola, and condemned as engaged in an illegal trade. From this sentence an appeal was prosecuted to the High Court of Appeals.

The first reason assigned by the captors for the condemnation of this vessel was, that "this ship was proceeding from Africa, with a cargo there laden, to Matanzas, in the island of Cuba, being a part of a colony then belonging to his majesty's enemies, contrary to the prohibitions of the order of his majesty in council, of the 11th day of November, 1807."

The second reason assigned was, that "the voyage was contrary to the prohibitory laws of the United States of America, made for abolishing the slave trade, which had been officially notified to the Lords of Appeal by the act of the American government in the case of the Chance, Brown, master; and although such laws of a foreign state may not amount to a direct or substantive ground of condemnation in a Court of Prize, yet they may and ought to exclude an American claimant from the benefit of those relaxations of the law of war which, in favour of neutral states, have been introduced by his majesty's instructions, in regard to their commerce with the colonies of his majesty's enemies; a privilege which can only be understood to be granted to neutral governments as a branch of their national commerce, and not as an invitation to lawless individuals to engage in a trade which the neutral state itself has prohibited, and desires to discourage."

The third ground of condemnation assigned by the captors was, "that Scott, the supercargo and lader of the slaves, is admitted to have an interest therein, which is liable to confiscation, he being a British subject, by the statute of 46 Geo. III. cap. 52."

JUDGMENT. Sir Wm. Grant. In the case of the Amedie, it must be considered, on the evidence produced to the Court, and from the situa

tion of this vessel at the time of capture, that she was employed in carrying slaves from the coast of Africa to a Spanish colony. We are of opinion this appears to have been the original design and purpose of the voyage, notwithstanding the pretence set up to veil the real intention of the proprietor. The American claimant, however, complains of the injury and interruption he has sustained in carrying on his usual and lawful trade, that of importing slaves for the purpose of sale, and calls upon the Prize Court to redress the grievance, and repair the damage he has sustained by the capture and unjust detention of this vessel.

On the different occasions when cases of this description formerly came before the Court, the slave trade was liable to considerations very different from those which now belong to it. So far as respected the transportation of slaves to the colonies of foreign nations, this trade had been prohibited by the laws of America only; this country had taken no notice of that prohibition; our law sanctioned the trade, which it was the policy of the American law first to restrict, and finally to abolish. 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, and of course could not be called upon to enforce; nor could it possibly bar a party in a Court of Prize. But by the alteration which has since taken place in our law, the question stands now upon very different grounds, We do now, and did at the time of this capture, take an interest in preventing that traffic in which this ship was engaged. The slave trade has since been totally abolished in this country, and our legislature has declared the African slave trade is contrary to the principles of justice and humanity. Whatever opinions, as private individuals, we before might have entertained upon the nature of this trade, no Court of justice could with propriety have assumed such a position as the basis of any of its decisions, whilst it was permitted by our own laws; but we do now lay down as a principle, that this is a trade which cannot, abstractedly speaking, be said to have a legitimate existence; I say abstractedly speaking, because we cannot legislate for other countries; nor has this country a right to control any foreign legislature that may think proper to dissent from this doctrine, and give permission to its subjects to prosecute this trade. We cannot, certainly, compel the subjects of other nations to observe any other than the first and generally received principles of universal law. But thus far we are now entitled to act, according to our law, and to hold that, prima facie, the trade is altogether illegal, and thus to throw on a claimant the whole burden of proof, VOL. X.

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in order to show, that by the particular law of his own country he is entitled to carry on this traffic. As the case now stands, we think that no claimant can be heard in an application to a Court of Prize for the restoration of the human beings he carried unjustly to another country, for the purpose of disposing of them as slaves. The consequence of making such proof is not now necessary to determine; but where it cannot be made, the party must be considered to have failed in establishing his asserted right. We are of opinion, upon the whole, that persons engaged in such a trade cannot, upon principles of universal law, have a right to be heard upon a claim of this nature in any Court. In the present case, the claimant does not bring himself within the protection of the law of his own country; he appears to have been acting in direct violation of that law, which admits of no right of property such as he claims; ours is express and satisfactory upon the subject.

Where, therefore, there is no right established to carry on this trade, no claim to restitution of this property can be admitted. We are hence of opinion the sentence of the Court below was valid, and ought to be affirmed.

THE FORTUNA. 1 Dodson's Rep. 81.

This was the case of a vessel bearing the Portuguese flag, captured by a British cruiser, in October, 1810, and sent into Plymouth as prize.

It appeared in evidence, that she sailed from New-York, under American colours, in the month of July, 1810; and ostensibly owned by an American citizen; that she went to Madeira, landed a part of her cargo, and, about a week before her departure from thence, a bill of sale of the ship was executed to a native of Madeira, a Portuguese subject; and, in consequence of this sale, Portuguese papers obtained, and the Portuguese flag assumed. It appeared, from an inspection of the vessel, and other evidence in the case, that the object of the voyage was to procure a cargo of slaves on the coast of Africa.

JUDGMENT. Sir William Scott. "An American ship, quasi American, is entitled, upon proof, to immediate restitution; but she may forfeit, as other neutral ships may, that title, by various acts of misconduct, by violation of belligerent rights most clearly and universally. But though this prize law looks primarily to violations of belligerent rights as grounds of confiscation in vessels not actually belonging to the enemy, it has extended itself a good deal beyond considerations of that descrip

tion only. It has 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 has been incorporated into the prize law of this country within the last twenty years, and seems now fully incorporated. A late decision, in the case of the Amedie, seems 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 belligerent rights of that country, whose tribunals are called upon to consider it, may subject the vessel 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, has 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 continues to tolerate and protect it by its own municipal regulations; but it puts upon the parties who are found in the occupations of that trade, the burthen of showing that it was so tolerated and protected; and, on failure of producing such proof, proceeds to condemnation, as it did in the case of that vessel. How far that judgment has been universally concurred in and approved, is not for me to inquire. If there be those who disapprove it, I am certainly not at liberty to include myself in that number, because the decisions of that Court bind authoritatively the judicial 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 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; and it matters not, in my opinion, in what stage of the employment, whether in the inception or the consummation of it; the case of the Amedie will bind the conscience of this Court to the effect of compelling it to pronounce a sentence of confiscation."

"I can have no rational doubt of her (the Fortuna's) real character; and, under the authority of the case of the Amedie, I condemn her and her cargo."

The DONNA MARIANNA. 1 Dodson's Rep. 91.

This was the case of a vessel seized as she was proceeding to Cape Coast for a cargo of slaves, under the Portuguese flag. It appeared in evidence, that she was originally an American vessel, had been bona fide sold to a British subject, and was now claimed as Portuguese property, on the ground that she had been since conveyed to a Portuguese merchant. The Court condemned the ship, as being a British vessel engaged in the slave trade.

Sir William Scott. "It would be a monstrous thing, where a ship, admitted to have been at one time British property, is found engaging in this traffic, to say, that, however imperfect the documentary evidence of the asserted transfer may be, and however startling the other circumstances of the case, no inquiry shall be made into the real ownership. Here are on board this vessel only papers of mere form, and which are in contradiction with each other, leaving the whole transaction of the transfer in great doubt and obscurity; and if the Court were to be prohibited, under such circumstances, from inquiry into the reality of the Portuguese title, one sees how easily the provisions of the legislature would be defeated."

"I can have no doubt that this Court is bound judicially to consider this as a British vessel, and that this Portuguese disguise has been assumed for the mere purpose of protecting the property of British merchants in a traffic which it was not lawful for them to engage in."

The DIANA. 1 Dodson's Rep. 95.

This was the case of a vessel, under Swedish colours, seized at Cape Mount, on the coast of Africa, on the 10th of September, 1810, by a British cruiser, and carried to Sierra Leone, where proceedings were instituted against the vessel and cargo. At the time of the seizure she had exchanged her outward cargo for 120 slaves, part of which she had received on board. An information was filed on the part of the captors, and a claim made for the ship and cargo, as the property of a subject of the King of Sweden. The vessel and cargo were condemned in the Vice-Admiralty Court at Sierra Leone, from which an appeal was prosecuted to the High Court of Admiralty.

The condemnation also took place on a principle which this Court cannot in any manner recognise, inasmuch as the sentence affirms,