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 British proposal of a recip rocal right of search in the African seas; and it would require an express convention to give the right of search in time of peace. (a) 86

Madrazo v. Willes.

§ 132. The leading principles of this judgment were confirmed in 1820 by the Court of King's Bench, in the

(a) Dodson's Admiralty Reports, ii. 210.

[88 The Amedie, and subsequent Cases. — A careful examination leads to the belief that the case of The Amedie, and those following it, have been misunderstood by the author, as well as by others. The report of The Amedie in the Appellate Court discloses so little of the facts, and the opinion is so restricted to the point technically sufficient for a decision, that it might well mislead persons not familiar with the practice of prize courts and not informed of the history of the case. England was at war with Spain; and her Orders in Council had declared that the ports of Cuba were under blockade, except for certain specified kinds of neutral trade. The Amedie was captured jure belli by a British cruiser in the West Indies. She had a cargo of slaves on board, and was bound from the coast of Africa, under American colors and papers. The ground of capture was, that she was destined to Cuba in violation of blockade. She was libelled as prize, in a British Vice-Admiralty Court in the West Indies, and condemned. The proceeding, from beginning to end, was one of prize of war solely; and her condemnation had nothing to do with her being engaged in the slave trade. An appeal was taken from this decision, and the decree was affirmed by the Appellate Court. The explanation of the fact, that this case has so almost uniformly been cited as one of condemnation of a foreign vessel for being engaged in the slave trade, may be found in the peculiarity of the rules which govern courts of prize in respect to condemnation and restitution.

Where a vessel has been captured as prize of war by a regular cruiser, and the circumstances show the capture to have been with probable cause, so that the captors and the court are in justifiable possession, there are two contingencies, either of which requires a decree of condemnation, first, where the affirmative proof shows that the vessel is a good prize by the laws of war; and, second, where, in the absence of such proof, or irrespective of it, no intervening party establishes a claim to the property. The absence of claims to the property after sufficient time, or the rejection by the court, for any cause whatever, of the claims made, leaves the property to be condemned as prize, irrespective of the question whether the affirmative proofs, of themselves, make a case for condemnation. It is also to be noticed, that a claim to prize property is an affirmative proceeding, in which the claimant is a plaintiff or actor, and has the onus of establishing his title to ownership and possession, and his right to receive the property from the court. A stranger or amicus curia is not permitted to question the validity of the capture. This is open only to a claimant upon the basis of a right in himself to receive the property in case it should not be condemned. Sometimes, therefore, the prize court, especially on an appeal from condemnation, will give its attention solely or mainly to the legality of the claim; and, if the only claim made is rejected, the condemnation is affirmed as of course. Nor is condemnation for want of legal claim a mere technical rule, but one founded upon the reason that the

case of Madrazo v. Willes, in which the point of the illegality of the slave-trade, under the general law of nations, came incidentally in question. The court held that the British statutes against the

absence of a good claim to valuable property taken under suspicious circumstances, furnishes a presumption that there are condemnatory facts of which the court has not been able to get possession.

When the case of The Amedie came before the Appellate Court, it was argued on both points, on the affirmative proof that the vessel was violating the rules of war, and on the invalidity of the claim made by the asserted owners. The court, in a single sentence, expressed itself satisfied, that, on all the evidence, the vessel was bound to an enemy's colony which was under blockade, and therefore a good prize; and then proceeded to an examination of the case of the claimant. Assuming the title of the vessel and cargo to be in him, the question was whether the claim was of a character which the court could recognize and enforce. And here it is to be remembered, that a court of prize will reject a claim founded in a transaction prohibited by positive law, or contrary to universal principles of justice and humanity; and the counsel for the captors had taken the ground that such was the character of the slave trade. The court decided, that, if this vessel was to be considered as bonâ fide American, the claim could not be rejected on the sole ground that the British law prohibited the slave trade; for that was a municipal law, and affected only British subjects and territory. The court further held, that the slave trade could not be considered as illegal under the law of nations, so as to authorize a prize court to treat it as illegal in the case of a citizen of a State which permitted it. The ground taken by the court was, that, in the then condition of British law, and of the laws and treaties of most civilized nations, the slave trade must be considered as primâ facie illegal; thus throwing on the claimant the burden of proving that the trade is allowed by the law of his own country. As the law of the United States prohibited the slave trade, treated slaves in transitu from Africa as free, declared a vessel so engaged forfeited, and punished the parties concerned with severe penalties, the claimant certainly failed to establish his right. The court, therefore, confirmed the decree of the court below, on two grounds, either of which was sufficient,-first, that the proof of attempt to violate blockade was satisfactory, as an affirmative ground for condemnation; and, second, that, irrespective of that ground, the claim of the American owner must be dismissed as one not enforceable in a prize court by reason of the laws both of the United States and Great Britain respecting the slave trade. On either ground, therefore, the vessel was condemned solely as prize of war. Yet this case has been represented by eminent writers as a decision that British cruisers, even in time of peace, may visit and search vessels of any nation, or at least of a nation that prohibits the slave trade, on suspicion of being engaged in that trade; and that vessels of such a nation found to be so engaged will be condemned in a British court on that ground. (See this case in Acton, i. 240; and Dodson, i. 84, note.)

The cases of The Africa (Acton, ii. 1), The Nancy (Ib. 2), and The Anne (Ib. 6), were all likewise prize causes; and the capture and condemnation in each were jure belli, and not for being engaged in the slave trade. The possession of the captors being justifiable, the court rejected the claims of asserted owners, partly on the same grounds as in The Amedie, and partly for causes connected with the laws of war.

The Fortuna (Dodson, i. 81). This was exclusively a prize cause. The vessel was captured and condemned as prize of war. The claimant was an American. On appeal, the only question considered was, whether the claim was established by proofs, and was of such a character that it could be admitted. It was held, on the

slave-trade were applicable to British subjects only. The British Parliament could not prevent the subjects of other States from carrying on the trade out of the limits of the British dominions. authority of The Amedie, that, the vessel being American and the slave trade illegal by American law, and the negroes by that law free, the claimant was not entitled to receive his negroes or their value from a prize court of England. The claim being dismissed, the decree below of condemnation, as prize of war, was affirmed, as of course. What direct evidence there was showing the vessel to have violated belligerent rights does not appear, nor, in strictness of law, was it necessary that it should appear.

The Diana (Dodson, i. 95). — This is well styled by Lord Stowell a "mongrel case." The pleadings and proceedings in the Vice-Admiralty Court were partly prize and partly civil, or instance; the decree was solely as prize; while the appeal was to a court having only a civil, appellate jurisdiction. The vessel was held to be Swedish, engaged in the slave trade to a Swedishi island; and the court decided that the law of Sweden permitted the trade. The claim was, therefore, one that the court could entertain, within the rule in The Amedie. The court treated the cause as one of civil forfeiture only; and, no ground for that appearing, the property was restored.

Le Louis (Dodson, ii. 210). - This is the case which is treated by Mr. Wheaton and most others as having overruled The Amedie. It was a civil cause for forfeiture, and has no relation to prize law or its presumptions or rules. The grounds taken by the counsel for the captors were, that the vessel was French, and engaged in the slave trade, which was prohibited by French law, and, as argued, by the law of nations; and, further, that the crew had resisted the boarding and search by the king's ship, and killed some of its crew, and were therefore guilty of piracy, and out of the protection of the law of nations.

The court held, that the boarding and search, by the king's cruiser, of a foreign vessel in time of peace, and not on suspicion of piracy jure gentium, but of being engaged in the slave trade, were unjustifiable, and consequently that resistance to them was not piratical; and that the slave trade was not piracy jure gentium, nor prohibited by the law of France. Therefore it was clear that the vessel not only could not be decreed forfeited by any British tribunal, but was illegally seized and brought before the court. The original taking was illegal.

In this cause, Sir William Scott made a learned and judicious explanation of the various positions which had been taken by writers and statesmen as to the right of visit, search, and bringing in for adjudication; and of the progress of law and opinion on the subject of the slave trade: but it will be found that this case in no sense overrules The Amedie, or those that followed it.

In The Amedie, the visit, search, capture, and bringing in were in the exercise of belligerent right. In The Louis, they were in time of peace, and solely for the purpose of suppressing the slave trade. In The Amedie, the proceedings were in prize, before a prize court, and governed by the law and rules of prize. In The Louis, they were civil, and governed by the law and rules of civil forfeiture. In The Amedie, the condemnation was as prize of war. In The Louis, if the vessel had been condemned, it could have been only for being engaged in the slave trade. In The Amedie, the capture and bringing in were justifiable, and the court had clear jurisdiction. In The Louis, the capture and bringing in were unjustifiable; and the general duty of the court was to restore, if a proper claimant appeared. In The Amedie, the burden was on the claimant to show legal title and a right to receive the property. In The Louis, the burden was on the seizors to show cause for

If a ship be acting contrary to the general law of nations, she is thereby subject to condemnation; but it was impossible to say that the slave-trade is contrary to the law of nations. It was, until lately, carried on by all the nations of Europe; and a practice so sanctioned could 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 adjudged cases had gone no farther 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. (a)87

§ 133. A similar course of reasoning was adopted by The Anthe Supreme Court of the United States in the case of telope. Spanish and Portuguese vessels captured by American cruisers, whilst the trade was still tolerated by the laws of Spain and Portugal.88 It was stated by Mr. Chief Justice Marshall, in delivering

forfeiture. In The Amedie, the claim was rejected because the slave trade, though not universally illegal, or piracy jure gentium, was illegal by the law of the claimant's country. In The Louis, the claim was sustained, because the slave trade was neither illegal by the law of nations, nor by the law of the claimant's country.

It may be and probably is true, that British cruisers made use of their belligerent right of search to discover slaves, and took advantage of the severe and summary rules of war tribunals to secure the condemnation of their prizes; but this is only saying that they made an undue use of opportunities which the criminality of their antagonists put in their power, and does not touch the law decided.

The result is, that the precedents, from The Amedie to The Louis, will be found consistent with each other, and with the rules of prize courts, and with the law of nations as to the slave trade.]-D.

(a) Barnwell's & Alderson's Reports, iii. 353.

[ Madrazo v. Willes has since been confirmed by the decision of the Exchequer Chamber in the case of Santos v. Illidge.]-D.

[The Antelope. Slave Trade.—The Antelope, Wheaton's Rep. x. 66, was not a prize case, but one for civil forfeiture. The general doctrines of the case, as applied to a slave trader, may be stated thus: (1) A cruiser of a State which prohibits the slave trade cannot search or seize a foreign vessel at sea on suspicion of being engaged in that trade. (2) If that is done, and the vessel comes under cognizance of the court of the cruiser's sovereign, its general duty is to treat the vessel as if she had not been seized, and to restore her. (3) In making restitution, the court may look beyond possession, and inquire into right. It will do this, and will reject the claim of the original and prior captors from whose possession the vessel was wrongfully taken, and treat their capture also as if it had not been made, if it appears that they made ostensibly a belligerent capture, but equipped themselves for their cruise in violation of the neutrality laws of the nation to which the court belongs. (4) Coming back thus to the owners from whom the first capture was made, the court may look beyond their possession and inquire into their title. If they are foreigners, and their nation allows the slave trade, in which their vessel is found to be engaged,—and their private titles are sufficiently proved, restitution is made to them. If they are citizens of a nation

the judgment of the court, that it could hardly be denied that the slave-trade was contrary to the law of nature. That every man had a natural right to the fruits of his own labor, was generally admitted; and that no other person could rightfully deprive him of those fruits, and appropriate them against his will, seemed to be the necessary result of this admission. But, from the earliest times, war had existed, and war conferred rights in which all had acquiesced. Among the most enlightened nations of antiquity, one of these rights was, that the victor might enslave the vanquished. That which was the usage of all nations could not be pronounced repugnant to the law of nations, which was certainly to be tried by the test of general usage. That which had received the assent of all must be the law of all.

Slavery, then, had its origin in force; but as the world had agreed that it was a legitimate result of force, the state of things which was thus produced by general consent could not be pronounced unlawful.

Throughout Christendom this harsh rule had been exploded, and war was no longer considered as giving a right to enslave captives. But this triumph had not been universal. The parties to the modern law of nations do not propagate their principles by force; and Africa had not yet adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves. The question then was, could those who had renounced this law be permitted to participate in its effects by purchasing the human beings who are its victims ?

Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution in those principles which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself a part, and to whose law the appeal is made. If we resort to this standard as the test of international law, the question must be considered as decided in favor of the legality of the trade. Both Europe and America embarked in it; and for nearly two centuries, whose laws prohibit the trade, the slaves are treated as that law requires. On the first part of this proposition—the restoration of slaves to foreigners whose laws allow the trade the court was equally divided. The reasons for the division, and the exact nature of it, are withheld by the court; but the division operated to confirm the decree of the court below, which was of restitution to the foreigners so claiming.]-D.