by Gelon, king of Syracuse, with the Carthaginians. It would have been still more worthy of a comparison, if it had not left color for the construction, that the renunciation, by the Dey of Algiers, of the practice of condemning Christian prisoners of war to slavery, was to be confined to the "event of future wars with any European power;" and if a great Christian power on this side of the Atlantic, whose presence and whose trade are constantly seen and felt in the Mediterranean had not seemed to have been entirely forgotten. (a)

But notwithstanding Bynkershoek had insisted, near a century ago, that captures by the Barbary powers worked a change of property by the laws of war, in like manner as captures made by regular powers, yet, in a case in the English admiralty so late as 1801, (b) it was contended that the capture and sale of an English ship by Algerines, was an invalid and unlawful conversion of the property, on the ground of being a piratical seizure. It was, however, decided that the African states had long acquired the character of established governments, and that though their notions of justice differ from those entertained by the Christian powers, their public acts could not be called in question; and a derivative title founded on an Algerine capture, and matured by a confiscation in their way, was good against the original owner. In the time of Richard I., when the laws of Oleron were compiled, all infidels were, by that code, (c) regarded as pirates, and their property liable to seizure wherever found. It was a notion, at that time, that such persons could not have any fellowship or communion with Christians.

* In a case which occurred in 1675, Sir Leoline Jenkins *191 held, that the commander of a privateer regularly commissioned, was liable to be treated as a pirate, if he exceeded the bounds of his commission. Bynkershoek justly opposes this dangerous opinion; (d) and the true rule undoubtedly is, that the vessel must have lost its national, and assumed a piratical character, before jurisdiction over it, to that extent, could be exercised.

(a) Declaration of the Dey of Algiers, made with Lord Exmouth, August 26th, 1816. Annual Register for 1816, app. to Chronicle, p. 288.

(b) The Helena, 4 Rob. Rep. 3.

(c) Sec. 45.

(d) Q. J. Pub. b. 1, c. 17.

If a natural-born subject was to take prizes belonging to his native country, in pursuance of a foreign commission, he would, on general principles, be protected by his commission from the charge of piracy. But to prevent the mischief of such conduct, the United States have followed the provisions of the English statute of 11 & 12 Wm. III. c. 7, and the general practice of other nations, (a) and have, by the Act of Congress of April 30th, 1790, sec. 9, declared, that if any citizen should commit any act of hostility against the United States, or any citizen thereof, upon the high seas, under color of any commission from any foreign prince or state, or on pretence of authority from any person, such offender shall be adjudged to be a pirate, felon and robber, and, on being thereof convicted, shall suffer death. The Act of Congress not only authorizes a capture, but a condemnation in the courts of the United States, for all piratical aggressions by foreign vessels; and whatever may be the responsibility incurred by the nation to foreign powers, in executing such laws, there can be no doubt that courts of justice are bound to obey and administer them. All such hostile and criminal aggressions on the high seas, under the flag of any power, render property taken in delicto subject to confiscation by the law of nations. (b)

Slave-trade.

(4.) 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 *192 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. Captives in war were sold as slaves by Greek and Roman commanders. The slave

(a) Vide supra, p. 100.

(b) Story, J., 11 Wheaton, 39-41.

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. (a) In modern times, treaties have been framed, and national monopolies sought, to facilitate and extend commerce in this species of property. (b) It has been interwoven in the municipal institutions of all the European colonies in America, and with the approbation and sanction of the parent states. It forms to this day the foundation of large masses of property in the southern parts of the 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 *193 believe that we ourselves were not Christians. Why has

(a) Mitford's Hist. vol. iv. p. 236. Cattle and slaves constituted the principal riches of the early ages of Greece. The Byzantines, says Polybius, (General History, b. 4, c. 5,) supplied, from the Pontus, the Greeks with honey, wax, salted meats, leather, and great numbers of very serviceable slaves. It is mentioned in Scripture, that the Tyrians traded with the Caucasian provinces for slaves: "Javan, Tubal, and Meshech, traded the persons of men and vessels of brass in thy market; " Ezek. xxvii. 13; and that they stole the children of the Jews, and sold them as slaves to the Greeks. Joel iii. 6. So the Carthaginians exchanged black slaves from the interior of Africa, in their commerce and barter with the cities of Italy and Greece. The great extent of the slave-trade, which was carried on by the polished nations of antiquity settled on the coasts of the Mediterranean, with Central Africa, by means of caravans, appears from Heeren, in his Historical Researches, vol. i., on the land trade of the Carthaginians.

(b) By the Assiento Treaty of March 26th, 1713, between Great Britain and Spain, the latter power granted to the English South Sea Company, for thirty years, the right of supplying the Spanish colonies in America with negro slaves, at the rate of 4,800 annually. This Assiento contract was explained and confirmed by a convention between England and Spain, in May 1716. A similar contract had been previously agreed on by Spain with the Royal Guinea Company settled in France. Jenkins's Collection of Treaties, London, 1775, vol. i. 375, vol. ii. 179.

it not, says he, entered into the heads of European princes who make so many useless conventions, to make one general stipulation in favor of humanity? (a) 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. (b) 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, for the purpose of traffic. 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 also that part of the traffic. By the Act of 2d March, 1807, it was prohibited, under severe pen

alties, to import slaves into the United States after the * 194 1st January, 1808; and, on the 20th April, *1818,2 the penalties and punishments were increased, and the prohibition

(a) L'Esprit des Lois, liv. 15, c. 5.

(b) The continental congress, which assembled at Philadelphia in 1774, gave the first general and authoritative condemnation of the slave-trade, by the resolution not to import or purchase any slave imported after the first day of December, in that year, and wholly to discontinue the trade. Journals of Congress, vol. i. p. 32. The convention of delegates of the people of Virginia, and the provincial congress of North Carolina, had anticipated this measure; for in August preceding they resolved to discontinue the importation of slaves. Pitkin's History, vol. i. App. note 16. Jones's Defence of the Revolutionary History of North Carolina, p. 145.

1 A ship which employed in the service of slavers, is engaged in the transportation of slaves, within the meaning of the Act of 1800, though no slaves are taken on board. The Porpoise, 2 Curtis, C. C. 307; see, too, United States v. Schooner Catharine, 2 Paine, C. C. 721.

2 The Ohio, 1 Newb. Adm. 409.

extended not only to importation, but generally against any citizen of the United States being concerned in the slave-trade. It has been decided, (a) that these statute prohibitions extend as well to 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, (b) 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 owned 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, not held to service or labor by the laws of either of the states or territories of the United States, with intent to make him a slave; or should decoy, or forcibly bring or receive such person 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 board any such vessel, offer to sell as a slave any negro or mulatto, not held to service as aforesaid; or should, on the high seas, or on any tide water, transfer or deliver over, to any other vessel, any such negro or mulatto, with intent to make him a slave, or should deliver on shore, from on board any such vessel, any negro or mulatto, with like intent, such citizen or person should be adjudged a pirate, and, on conviction, should suffer death.1

(a) The Merino, 9 Wheaton, 391. The declarations of the master connected with his acts in furtherance of the voyage, have been held to be evidence on an indictment against the owner of the ship, under the Act of 20th April, 1818. United States v. Gooding, 12 Wheaton, 460.

(b) C. 113, sec. 4, 5.

1 As to what acts and participation will warrant a conviction under this Act, see the case