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chusetts, and Pennsylvania. But they are so scattered up and down, and so mixed and overlaid with technical learning, (foreign to the true spirit of commercial law,) and are involved in so many contradictions, doubts, and anomalies, that it is the labour of a life to become an accomplished commercial lawyer.
The district of Columbia, where congress has the exclusive authority of legislating in all cases, both civil and criminal, also affords an ample field for the science of legislation. We do not say that the people of that district are fit subjects for political experiments, or that they ought to be used for the same purposes that live animals are used by physiologists. But seriously, when we consider the limited extent and population of the District of Columbia, and that its legislature combines what is (or ought to be) the collected wisdom of the nation, we think that next to Louisiana, (where the people have always been accustomed to written laws,) it affords the best chance of a favourable result to the experiment of establishing a civil and criminal code.
We have said, that in determining suits at law between private individuals, and not involving the construction of the constitution, laws, and treaties of the Union, the supreme court decides not according to any national code, but according to the local law applicable to the particular case, whether it be of contract or the law of real property. This principle is recognised by congress in the 34th section of the judiciary act of 1789, which provides “ that the laws of the several states, except where the constitution, treaties, or statutes of the United States, shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply." But this has been held not to extend to what is called the lex fori, or the practice and proceedings of the court; and in a very interesting case, reported in the volume now before us, it was determined, that the process in the federal courts to enforce the execution of judgments is not to be affected by the varying and capricious legislation of the states. Hence it was held in the case to which we refer, that the statutes of Kentucky concerning executions, which require the plaintiff to endorse upon the execution, that bank notes of the bank of Kentucky, or of the bank of the commonwealth of Kentucky, will be received in payment, and, on his refusal, authorize the defendant to give a replevin bond for the debt, payable in two years; and which prohibits the sale of property taken on execution for less than three fourths of its appraised value, without the consent of the
owner, do not apply to executions issuing on judgments rendered by the courts of the United States. The question how far these statutes might be considered as void, even in respect to proceedings in the state courts, as being repugnant to the constitution of the United States, was reserved, as not being necessary to the determination of the case before the court. But we think it requires no great skill to determine that these acts are absolutely void, as being in the nature of tender laws, and laws impairing the obligation of contracts. They are in fact of the same family with that prolific brood of state laws, called paper-money acts, instalment laws, pine-barren laws, relief laws, &c. which overwhelmed the country with so much distress after the peace of 1783, and were among the principal moving causes which produced the establishment of the present constitution. They are of the same nature with those laws of the ancient republics for the abolition of debts-novas tabellas
or providing for particular cases-privilegia—and those other acts of popular legislation, provoked by pestilent demagogues playing upon the passions of uninstructed multitudes, and which were so much deprecated by Cicero and the other good men of those days. 'l'hey only aggravate and confirm the evils they are intended to mitigate; and it is astonishing that the people of Kentucky have not yet been taught wisdom by experience, and have not abandoned a system which is equally irreconcileable with justice and sound policy.
The constitution of the United States gives to the national judiciary cognisance of “ all cases of admiralty and maritime jurisdiction," leaving the nature, extent, and mode of exercising this jurisdiction to be settled by interpretation. The principal question, which has arisen under this head of constitutional law, has been whether it is to be limited to those narrow bounds, within which the courts of common law have so long restrained the admiralty in England, or whether it is to be extended to all cases properly of a maritime nature, and to which the jurisdiction of the English court of admiralty formerly reached. There is a case in this volume (p. 473.) which we think goes far to settle this question. It was held in that case, that if a proceeding has been constantly used in the admiralty courts of this country, both before and since the revolution, it is not a sufficient reason for rejecting it that it has fallen into desuetude in England. The principle was applied to the process by attachment in the admiralty, which it was held would lie in all maritime cases, both of tort and contract, where the reus has concealed himself, or absconded, and the property to be attached is to be found within the jurisdiction of the court.
Now, we believe that it is conceded on all hands, that the jurisdiction of the courts of admiralty in the colonies was always much more extensive than has been tolerated by the courts of Westminster Hall for a long period, and that in fact it included all those cases of torts and contract, which are enumerated in the commissions to the judges of the courts of vice admiralty issued before the revolution. The consequence, therefore, seems to be, under this decision of the supreme court, that the admiralty and maritime jurisdiction conferred by the constitution extends to all those cases.
But the most interesting case, to the general reader, reported in this volume, is that of the Antelope, (p. 66.) in which the question was agitated, how far the African slave trade may be considered as prohibited by the law of nations.
We believe that Denmark has the honour of being the first state in the world which prohibited this abominable traffic. But the United States soon followed the example, and as early as 1794 the foreign slave trade was prohibited to citizens of this country by an act of congress. In 1808, the importation of slaves into every part of this country was entirely prohibited, and we believe it had been long before that period probibited in every state of the Union except South Carolina and Georgia. Before the revolution, the trade was encouraged by the mother country by every means in her power; and the acts of the colonial assemblies, passed to prevent the importation of Africans, were uniformly rejected by the crown. The documents published in the appendix to this volume of Mr. Wheaton's reports will show the incessant endeavours of the United States to give efficacy to these prohibitions, both by their own municipal enactments, and by co-operation with foreign nations.
The question how far the trade is to be considered unlawful in a Court of the law of nations, independently of the conventional law, was first considered in England, in the case of the Amedie, which was decided by the privy council in 1810. It was the case of an American vessel employed in the African slave trade, and captured by a British cruiser during the war between Great Britain and France. Sir William Grant, in delivering the judgment of the court of appeals, said, that the trade having been declared unjust and unlawful both by Great Britain and the United States, “a claimant could have no right, upon principles of universal law, to claim restitution in a prize court of human beings carried as his slaves. He must show some right that has been violated by the capture, some property of which he has been dispossessed, and to which he
ought to be restored. In this case, the laws of the claimant's country allow of no right of property such as he claims. There can, therefore, be no right of restitution. The consequence is that the judgment must be affirmed."
The case of the Fortuna was decided in 1811, in the same manner, by Sir William Scott, upon the authority of the preceding determination in the Amedie.
In the case of the Diana, which was a Swedish vessel, decided in 1813, Sir W. Scott seems, for the first time, to have hesitated about following the lords of appeal in their sweeping denunciation of the trade. But it did not
appear that Sweden had prohibited the slave trade, and, consequently, he might without inconsistency restore the property to the claimant.
But in the case of the Louis, which was decided in 1817, he had occasion to review the whole subject. That was the case of a French slave ship captured, after an armed resistance, by a British cruiser, in time of peace. Sir W. Scott decreed restitution to the French claimants upon the double ground, 1st. that France had not, in fact, prohibited the trade, although she had promised and professed to do so. And, 2dly. That there could be no such thing as a right of search, and detention of a foreign vessel on the high seas in time of peace, unless under some treaty stipulation expressly authorizing it. These two points he labours to establish with his usual strength of reasoning and beauty of style.
All these cases are published by Mr. Wheaton in his appendix ; they having been much commented on and criticised, both by the counsel and the court, in the discussion of the case of the Antelope.
The first case in which this great question occurred in the courts of the United States, was that of the Jeune Eugénie, in which Judge Story rejected the claim of a French subject, as being founded in a breach of the municipal law of his own country. He did not, however, proceed to condemnation, but directed the vessel to be delivered up, with the consent of the President, to the French government to be dealt with as it should think fit.
Next came the case of the Antelope, in which Judge Johnson allowed the claim of Spanish and Portuguese subjects for certain Africans taken under the following very singular circumstances : A privateer, called the Colombia, and illegally fitted out under a foreign commission from our ports, the greater part of her officers and crew being citizens of the United States, having assumed the name of the Arraganta, captured on the coast of Africa an American dessel from Bristol in Rhode Island, from
which she took twenty-five Africans. She afterwards captured several Portuguese vessels, from which she took other Africans, and a Spanish vessel, (called the Antelope,) from which she also took a number of Africans. The two vessels then sailed in company to the coast of Brazil, where the Arraganta was wrecked in a violent storm, and a great part of the crew made prisoners. The rest of the crew, with the armament, were transferred to the Antelope, which was under the command of one Smith, a citizen of the United States; and on board this vessel were all the Africans which had been captured by the privateer in the course of her cruise. In this situation she was found hovering near the coast of the United States, and brought into the port of Savannah by a revenue cutter. The circuit court decreed the Africans who had been taken out of the American vessel to be delivered up to the government of the United States under the laws for prohibiting the slave trade, and restored the rest to the Spanish and Portuguese claimants.
Upon the hearing of the cause upon appeal in the supreme court, the judges were equally divided (six judges only being present) upon the question whether, under the circumstances of the case, restitution could be decreed at all. Of course the decree of the circuit court was affirmed, so far as the point of division went. But a majority of the court were of opinion, that possession of Africans, under such circumstances, was not a sufficient evidence of property, and that the burthen of proof was thrown upon the Spanish and Portuguese claimants to show that possession was lawfully acquired. It was also determined, that although, in general, the right of visitation and search does not exist in time of peace, the capture in the present case was lawful, and the negroes were not to be restored without full and satisfactory proof of the proprietary interest.
Such are the practical results of this decision. But in examining the abstract questions growing out of it, Chief Justice Marshall, whose opinion is expressed with his usual felicity of diction, seems to coincide rather with the views of Sir W. Scott than with those of Sir W. Grant. We have thought the following extract from his judgment might not be unacceptable to our readers:
“ In examining claims of this momentous importance ; claims in which the sacred rights of liberty and of property come in conflict with each other ; which have drawn from the bar a degree of talent and of eloquence, worthy of the questions that have been discussed ; this Court must not yield to feelings which might seduce it from the path of duty, and must obey the mandate of the law.