Article 1, Section 9, Clause 1

Document 26

James Kent, Commentaries 1:179--87

The African slave trade is an offence against the municipal laws of most nations in Europe, and it is declared to be piracy by the statute laws of England and the United States. Whether it is to be considered as an offence against the law of nations, independent of compact, has been a grave question, much litigated in the courts charged with the administration of public law; and it will be useful to take a short view of the progress and present state of the sense and practice of nations on this subject.

Personal slavery, arising out of forcible captivity, has existed in every age of the world, and among the most refined and civilized people. The possession of persons so acquired, has been invested with the character of property. The slave trade was a regular branch of commerce among the ancients; and a great object of Athenian traffic with the Greek settlements on the Euxine, was procuring slaves from the barbarians for the Greek market. In modern times, treaties have been framed, and national monopolies sought, to facilitate and extend commerce in this species of property. It has been interwoven into the municipal institutions of all the European colonies in America, and with the approbation and sanction of the parent states. It [Volume 3, Page 305] forms to this day the foundation of large masses of property in the southern parts of these United States. But, for half a century past, the African slave trade began to awaken a spirit of remorse and sympathy in the breasts of men, and a conviction that the traffic was repugnant to the principles of Christian duty, and the maxims of justice and humanity.

Montesquieu, who has disclosed so many admirable truths, and so much profound reflection, in his Spirit of Laws, not only condemned all slavery as useless and unjust, but he animadverted upon the African slave trade by the most pungent reproaches. It was impossible, he observed, that we could admit the negroes to be human beings, because, if we were once to admit them to be men, we should soon come to believe that we ourselves were not Christians. Why has it not, says he, entered into the heads of the European princes, who make so many useless conventions, to make one general stipulation in favour of humanity. We shall see presently that this suggestion was, in some degree, carried into practice by a modern European congress.

The constitution of the United States laid the foundation of a series of provisions, to put a final stop to the progress of this great moral pestilence, by admitting a power in Congress to prohibit the importation of slaves, after the expiration of the year 1807. The constitution evidently looked forward to the year 1808 as the commencement of an epoch in the history of human improvement. Prior to that time, Congress did all on this subject that it was within their competence to do. By the acts of March 22d, 1794, and May 10th, 1800, the citizens of the United States, and residents within them, were prohibited from engaging in the transportation of slaves from the United States to any foreign place or country, or from one foreign country or place to another. These provisions prohibited our citizens from all concern in the slave trade, with the exception of direct importation into the United States; and the most prompt and early steps were taken, within the limits of the constitution, to interdict that part of the traffic also. By the act of 2d March, 1807, it was prohibited, under severe penalties, to import slaves into the United States, after the 1st January, 1808; and, on the 20th April, 1818, the penalties and punishments were increased, and the prohibition extended not only to importation, but generally against any citizen of the United States being concerned in the slave trade. It has been decided, that these statute prohibitions extend as well to the carrying slaves on freight, as to cases where they were the property of American citizens, and to carrying them from one port to another of the same foreign empire, as well as from one foreign country to another. The object was to prevent, on the part of our citizens, all concern whatever in such a trade.

The act of March 3d, 1819, went a step further, and authorized 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, that 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 the crew of any vessel armed in whole or in part, or navigated for or on 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, 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, notwithstanding 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 negotiation 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 law of the United States.

The first British statute that declared the slave trade unlawful, was in March, 1807. This was a great triumph of British justice. It was called for by the sense of the British nation, which had become deeply convinced of the impolicy and injustice of the slave trade; and by the subsequent statute of 51 Geo. III. the trade was declared to be contrary to the principles of justice, humanity, and sound policy; and lastly, by the act of Parliament of 31st March, 1824, the trade is declared to be piracy. England is thus, equally with the United States, honestly and zealously engaged in promoting the universal abolition of the trade, and in holding out to the world their sense of its extreme criminality. Almost every maritime nation in Europe has also deliberately and solemnly, either by legislative acts, or by treaties and other formal engagements, acknowledged the injustice and inhumanity of the trade, and pledged itself to promote its abolition. By the treaty of Paris of the 30th May, 1814, between Great Britain and France, Lewis XVIII. agreed that the traffic was repugnant to the principles of natural justice, and he engaged to unite his efforts at the ensuing congress, to induce all the powers of christendom to decree the abolition of the trade, and that it should cease definitively, on the part of the French government, in the course of five years. The ministers of the principal European powers who met at the congress at Vienna, on the 8th February, 1815, solemnly declared, in the face of Europe and the world, that the African slave trade had been regarded by just and enlightened men, in all ages, as repugnant to the principles of humanity and of universal morality, and that the public voice in all civilized countries demanded that it should be suppressed; and that the universal abolition of it was conformable to the spirit [Volume 3, Page 306] of the age, and the generous principles of the allied powers. In March, 1815, the Emperor Napoleon decreed that the slave trade should be abolished; but this effort of ephemeral power was afterwards held to be null and void, as being the act of an usurper; and in July following, Lewis XVIII. gave directions that this odious and wicked traffic should from that present time cease. The first French decree, however, that was made public, abolishing the trade, was of the date of the 8th January, 1817, and that was only a partial and modified decree. In December, 1817, the Spanish government prohibited the purchase of slaves on any part of the coast of Africa, after the 31st May, 1820; and in January, 1818, the Portuguese government made the like prohibition as to the purchase of slaves on any part of the coast of Africa north of the equator. In 1821, there was not a flag of any European state which could legally cover this traffic, to the north of the equator; and yet, in 1825, the importation of slaves covertly continued, if it was not openly countenanced, from the Rio de la Plata to the Amazon, and through the whole American archipelago.

The case of the Amedie was the earliest decision in the English courts on the great question touching the legality of the slave trade, on general principles of international law. That was the case of an American vessel, employed in carrying slaves from the coast of Africa to a Spanish colony. She was captured by an English cruiser, and the vessel and cargo were condemned to the captors, in a vice-admiralty court in the West Indies, and, on appeal to the Court of Appeals in England, the judgment was affirmed. Sir Wm. Grant, who pronounced the opinion of the court, observed, that the slave trade being abolished by both England and the United States, the court was authorized to assert, that the trade, abstractedly speaking, could not have a legitimate existence, and was, prima facie, illegal, upon principles of universal law. The claimant, to entitle him to restitution, must show affirmatively a right of property under the municipal laws of his own country; for, if it be unprotected by his own municipal law, he can have no right of property in human beings carried as his slaves, for such a claim is contrary to the principles of justice and humanity. The Fortuna was condemned on the authority of the Amedie, and the same principle was again affirmed. But, in the subsequent case of the Diana, the doctrine was not carried so far as to hold the trade itself to be piracy, or a crime against the law of nations. A Swedish vessel was taken by a British cruiser on the coast of Africa, engaged in carrying slaves from Africa to a Swedish island in the West Indies, and she was restored to the owner, on the ground that Sweden had not then prohibited the trade, and had tolerated it in practice. England had abolished the trade as unjust and criminal, but she claimed no right of enforcing that prohibition against the subjects of those states which had not adopted the same opinion; and England did not mean to set herself up as the legislator, and custos morum, for the whole world, or presume to interfere with the commercial regulations of other states. The principle of the case of the Amedie was, that where the municipal law of the country to which the parties belonged had prohibited the trade, English tribunals would hold it to be illegal, upon general principles of justice and humanity, but they would respect the property of persons engaged in it, under the sanction of the laws of their own country.

The doctrine of these cases is, that the slave trade is, abstractedly speaking, immoral and unjust, and it is illegal, when declared so 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 every where, and in every court, on that ground alone.

The whole subject underwent further, and a most full, elaborate, and profound discussion, in the case of the Le Louis. A French vessel, owned and documented as a French vessel, was captured by a British armed force on the coast of Africa, after resistance made to a demand to visit and search. She was carried into Sierra Leone, and condemned by a court of vice-admiralty, for being concerned in the slave trade contrary to the French law. On appeal to the British High Court of Admiralty, the question respecting the legality of the capture and condemnation, was argued, and it was judicially decided, that the right of visitation and search, on the high seas, did not exist in time of peace. If it belonged to one nation, it equally belonged to all, and would lead to gigantic mischief, and universal war. Other nations had refused to accede to the English proposal of a reciprocal right of search in the African seas, and it would require an express convention to give the right of search in time of peace. The slave trade, though unjust and condemned by the statute law of England, was not piracy, nor was it a crime by the universal law of nations. To make it piracy, or such a crime, it must have been so considered and treated in practice by all civilized states, or made so by virtue of a general convention. On the contrary, it had been carried on by all nations, even by Great Britain herself, until within a few years, and was then carried on by Spain and Portugal, and not absolutely prohibited by France. It was, therefore, not a criminal traffic by the law of nations; and every nation, independent of treaty, retained a legal right to carry it on. No one nation had a right to force the way to the liberation of Africa, by trampling on the independence of other states; or to procure an eminent good by means that were unlawful; or to press forward to a great principle, by breaking through other great principles that stood in the way. The condemnation of the French vessel at Sierra Leone was, therefore, reversed, and the penalties imposed by the French law, (if any there were,) were left to be enforced, not in an English, but in a French court.

The same subject was brought into discussion in the K. B. in 1820, in Madrazo v. Willes. The Court held, that the British statutes against the slave trade, were only applicable to British subjects, and only rendered the slave trade unlawful when carried on by them. The British parliament could not prevent the subjects of other states 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 was contrary to the general law of nations. It was, until lately, carried on by all the nations of Europe; and a practice so sanctioned can [Volume 3, Page 307] 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 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. In the case of the La Jeune 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.

The Founders' Constitution
Volume 3, Article 1, Section 9, Clause 1, Document 26
http://press-pubs.uchicago.edu/founders/documents/a1_9_1s26.html
The University of Chicago Press

Kent, James. Commentaries on American Law. 4 vols. New York, 1826--30.