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acts of parliament to which we have been referred, I had at first thought that it was not competent, even for a foreigner, to come into an English Court of justice, and there to recover damages for a loss sustained by him in the prosecution of a trade declared by the British legislature, in such strong language, to be unlawful. It was with that view that I directed the jury to separate the damages in this case; for it occurred to me, that though the plaintiff might not be entitled to recover for the slaves, still, inasmuch as, at all events, the defendant ought to have taken away the slaves promptly, if at all, the subsequent detention of the ship was an injury, for which the plaintiff was entitled to compensation. But I am now satisfied that the words used by the legislature, although large and extensive, can only be taken to be applicable to British subjects. By the 58 Geo. III. c. 36. it appears that a treaty had been made with Spain, for the prohibition of an important branch of the trade; and that, with regard to the remainder, special provisions had been made, and a special Court constituted for the purpose of settling the disputes which might occur. Now that shows most strongly, that but for such a treaty, the trade would have been perfectly legal in a Spaniard; and the 10th section of that act, by which a certain sum is provided, as a full compensation for all losses sustained in consequence of the seizure of vessels previously to the ratification of that treaty, seems to me to corroborate most strongly this view of the subject; for it enables the parties sued to plead that clause in bar of the action, which would obviously have been unnecessary, if under the previous acts no action could have been maintained at all. This clause, therefore, seems to me to be a legislative recognition of a foreigner's right of suit. And by the 11th and 12th sections it is provided, that all suits commenced in the Courts of Admiralty shall proceed, if commenced; and that the damages, &c. when recovered, shall be paid to the government of this country. All these clauses, taken together, appear to me to show, that what occurred to me at nisi prius, was not a sound exposition of the law. I am therefore of opinion, that the verdict for the larger sum found by the jury is right, and that we ought to refuse this rule.

BAYLEY, J. I do not think that there is sufficient doubt in this case, to induce us to grant a rule. A British Court of justice is always open to the subjects of all countries in amity with us, and they are entitled to compensation for any wrongful act done by a British subject to them. It is no answer to the present action to say, that it would not be maintainable by a British subject; for the only questions are, whether the act of the defendant be wrongful, and what injury the plaintiff has sus

tained from it? Although the language used by the legislature in the statute referred to, is undoubtedly very strong, yet it can only apply to British subjects, and can only render the slave trade unlawful if carried on by them; it cannot apply, in any way, to a foreigner. It is true, that if this were a trade contrary to the law of nations, a foreigner could not maintain this action. But it is not; and as a Spaniard cannot be considered as bound by the acts of the British legislature prohibiting this trade, it would be unjust to deprive him of a remedy for the wrong which he has sustained. He had a legal property in the slaves, of which he has, by the defendant's act, been deprived. The 58 Geo. III. c. 36. proceeds on this principle; and the provisions referred to by my Lord Chief Justice, seem to me to be conclusive on the subject. I think, therefore, that we ought not to disturb this verdict.

HOLROYD, J. However much I may regret that any damages canbe recoverable for such a subject as this, yet I think we are bound to say, that this plaintiff is entitled to them. I agree with the construction which has been put on the 58 Geo. III. c. 36.; and I think, that even independently of that act, the action would have been maintainable for the loss of the slaves.

The

BEST, J. The statutes which have been referred to, speak in just terms of indignation of the horrible traffic in human beings; but they speak only in the name of the British nation. The declaration of the British legislature, that the slave trade is contrary to justice and humanity, cannot affect the subjects of other countries, or prevent them from carrying on this trade out of the limits of the British dominions. assertion of a right to control the subjects of other states in this respect, would be inconsistent with that independence which we acknowledge that every foreign government possesses. If a ship be acting contrary to the general law of nations, she is thereby subject to confiscation; but it is impossible to say that the slave trade is contrary to what may be called the common law of nations. It was, until lately, carried on by all the nations of Europe. A practice so sanctioned can only be rendered illegal by the consent of all the powers. Most of the states of Christendom have now consented to the abolition of the slave trade, and concurred with us in declaring it to be unjust and inhuman. The subjects of any of these states could not, I think, maintain an action in the Courts of this country for any injury happening to them in the prosecution of this trade; but Spain has reserved to herself a right of car

rying it on in that part of the world where this transaction occurred. Her subjects could not legally be interrupted in buying slaves in that part of the globe, and have a right to appeal to the justice of this country for any injury sustained by them from such an interruption. These principles are confirmed by the decisions of the Court of Admiralty, and also by a judgment of Sir William Grant, pronounced at the Cockpit. The cases to which I allude, are, the Fortuna, the Donna Marianna, and the Diana, in the Admiralty Court; and the Amedie, before the privy council. (Dodson's Ad. Rep. 81. 91. 95.) These cases establish this rule, that ships which belong to countries that have prohibited the slave trade, are liable to capture and condemnation, if found employed in such trade; but that the subjects of countries which permit the prosecution of this trade, cannot be interrupted while carrying it on. It is clear, from these authorities, that the slave trade is not condemned by the general law of nations. The subjects of Spain have only to look to the municipal laws of their own country, and cannot be affected by any laws made by our government. The rule for reducing the damages, in this case, must therefore be refused.

Rule refused.

INDEX

ΤΟ

THE PRINCIPAL MATTERS

IN THIS VOLUME.

A.

ADMIRALTY.

1. The African slave trade is con-
trary to the law of nature, but is
not prohibited by the positive
law of nations. The Antelope,

66. 114
2. Although the slave trade is now
prohibited by the laws of most
civilized nations, it may still be
lawfully carried on by the sub-
jects of those nations who have
not prohibited it by municipal
acts or treaties. Ib.

3. The slave trade is not piracy, un-
less made so by the treaties or
statutes of the nation to whom the
party belongs. Ib.

4. The right of visitation and search

does not exist in time of peace.
A vessel engaged in the slave
trade, even if prohibited by the
laws of the country to which it
belongs, cannot, for that cause
alone, be seized on the high seas,
and brought in for adjudication,
in time of peace, in the Courts of

another country. But if the laws
of that other country be violated,
or the proceeding be authorized
by treaty, the act of capture is
not in that case unlawful. Ib.
5. It seems, that in case of such a
seizure, possession of Africans is
not a sufficient evidence of pro-
perty, and that the onus probandi
is thrown upon the claimant, to
show that the possession was law-
fully acquired. lb.

6. Africans who are first captured by
a belligerent privateer, fitted out
in violation of our neutrality, or
by a pirate, and then recaptured
and brought into the ports of the
United States, under a reasona-
ble suspicion that a violation of
the Slave Trade Acts was intend-
ed, are not to be restored without
full proof of the proprietary inte-
rest; for in such a case the cap-
ture is lawful. lb.
7. And whether, in such a case, res-
titution ought to be decreed at all,
was a question on which the
Court was equally divided. Ib.
8. Where the Court is equally di

vided, the decree of the Court
below is of course affirmed, so far
as the point of division goes. Ib.
9. Although a consul may claim for
subjects unknown of his nation,
yet restitution cannot be decreed
without specific proof of the in-
dividual proprietary interest. Ib.
10. A question of fact under the Slave
Trade Acts, as to a vessel claimed
by a Spanish subject, as having
been engaged in the trade under
the laws of his own country, but
proved to have been originally
equipped in the United States for
the voyage in question. The
Plattsburgh,

133
11. Under the Slave Trade Act of
1794, c. 11. the forfeiture attaches
where the original voyage is com-
menced in the United States:
whether the vessel belong to citi-
zens or foreigners, and whether
the act is done suo jure, or by an
agent for the benefit of another
person who is not a citizen or re-
sident of the United States.
12. Circumstances of a pretended
transfer to a Spanish subject, and
the commencement of a new voy-
age in a Spanish port, held not to
be sufficient to break the continu-
ity of the original adventure, and
to avoid the forfeiture. Ib.
13. It is not necessary, to incur the for-

lb.

feiture under the Slave Trade
Acts, that the equipments for the
voyage should be completed. It
is sufficient if any preparations
are made for the unlawful pur-
pose. lb.

14. The Secretary of the Treasury

has authority, under the Remis-
sion Act of the 3d of March,
1797, c. 361. [lvii.] to remit a for-
feiture or penalty accruing under
the revenue laws, at any time, be-
fore or after a final sentence of
condemnation or judgment for
the penalty, until the money is

actually paid over to the Collec-
tor for distribution. The United
States v. Morris, 246. 287
15. Such remission extends to the
shares of the forfeiture or penalty

16.

to which the officers of the cus-
toms are entitled, as well as to
the interest of the United States.
Ib.
287
The District Courts have jurisdic-
tion, under the Slave Trade Acts,
to determine who are the actual
captors, under a State law made
in pursuance of the 4th section of
the Slave Trade Act of 1807, c.
77. and directing the proceeds of
the sale of the negroes to be paid,
"one moiety for the use of the
commanding officer of the cap-
turing vessel," &c.
The Josefa
Segunda,

312.322
17. In order to constitute a valid sei-

18.

zure, so as to entitle the party to
the proceeds of a forfeiture, there
must be an open, visible posses-
sion claimed, and authority exer-
cised, under the seizure. Ib. 325
A seizure, once voluntarily aban-
doned, loses its validity. 1b. 326
A seizure, not followed by an ac-
tual prosecution, or by a claim, in
the District Court, before a hear-
ing on the merits, insisting on the
benefit of the seizure, becomes a
nullity. Ib.
327
20. Under the 7th section of the Slave

19.

Trade Act of 1807, c. 77. the
entire proceeds of the vessel are
forfeited to the use of the United
States, unless the seizure be made
by armed vessels of the navy, or
by revenue cutters, in which case
distribution is to be made in the
same manner as prizes taken from
the enemy. Ib.
331
21. Under the act of the State of

Louisiana of the 13th of March,
1818, passed to carry into effect
the 4th section of the Slave Trade
Act of Congress of 1807, c. 77.

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