and crew, and murdered the captain and part of the crew, and took the vessel under their own control? If these acts, according to the principles of international law, or under the acts of the Congress of the United States, constitute or amount to piracy, then jurisdiction to try and punish belongs to the United States. The question arises, Do these acts constitute piracy? "Piracy is defined to be the offence of depredating on the seas without being authorized by any sovereign State, or with commissions from different sovereigns at war with each other." "Pirates being the common enemies of all mankind, and all nations having an equal interest in their apprehension and punishment, they may be lawfully captured on the high seas by the armed vessels of any particular State, and brought within its territorial jurisdiction for trial by its tribunals." (Wheaton's Elements of International Law, p. 113.) Chancellor Kent, in his Commentaries, (vol. 1, p. 183,) says: "Piracy is robbery, or a forcible depredation on the high seas, without lawful authority, and done animo furandi, and in the spirit and intention of universal hostility. It is the same offence at sea with robbery on land; and all the writers on the law of nations, and on the maritime law of Europe, agree in this definition of piracy. Pirates have been regarded by all civilized nations as the enemies of the human race, and the most atrocious violators of the universal law of society. They are everywhere pursued and punished with death; and the severity with which the law has animadverted upon this crime arises from its enormity and danger, the cruelty that accompanies it, the necessity of checking it, the difficulty of detection, and the facility with which robberies may be committed upon pacific traders in the solitude of the ocean. Every nation has a right to attack and exterminate then, without any declaration of war; for though pirates may form a loose and temporary association among themselves, and re-establish, in some degree, those laws of justice which they have violated with the rest of the world, yet they are not considered as a national body, or entitled to the laws of war, as one of the community of nations. They acquire no rights by conquest; and the law of nations, and the municipal law of every country, authorize the true owner to reclaim his property taken by pirates, wherever it can be found; and they do not recognise any title to be derived from an act of piracy. The principle, that a piratis et latronibus capta dominium non mutant, is the received opinion of ancient civilians and modern writers on general jurisprudence; and the same doctrine was maintained in the English courts of common law, prior to the great modern improvements made in the science of the law of nations.' In the case of the United States vs. Smith, (5 Wheaton, 153,) the Supreme Court of the United States clearly recognise the foregoing descrip tion and definitions of piracy; and state, that the defendant in that case, and his associates, were, at the time of committing the offence, freebooters upon the sea, not under the acknowledged authority, or deriving protection from the flag or commission of any government; and, therefore, the defendant was subject to trial within the United States. From this language it may clearly be inferred that, had the vessel been sailing under the authority and flag of any particular government, the defendant would not have been subject to trial in any court of the United States; but that his case would have been exclusively within the jurisdiction of the tribu nals of that state under whose commission, authority, or flag, he was navigating his vessel. And in the case of the United States vs. Palmer, (3 Wheaton, 610,) the Supreme Court of the United States expressly decided that the crime of robbery committed by a person on the high seas, on board of a ship belonging exclusively to subjects of a foreign state, was not piracy under the act of Congress approved 30th of April, 1790, and was not punishable in the courts of the United States. now before me, the vessel is a Spanish vessel, belonging exclusively to Spaniards, navigated by Spaniards, and sailing under Spanish papers and flag, from one Spanish port to another. It therefore follows, unquestionably, that any offence committed on board is cognizable before the Spanish tribunals, and not elsewhere. These two points being disposed of-1. That the government of the United States is to consider these negroes as the property of the individuals in whose behalf the Spanish minister has put in a claim; 2. That the United States cannot proceed against them criminally;-the only remaining inquiry is, What is to be done with the vessel and cargo, the negroes being a part of the latter? A case like the present is not embraced by any of the legal provisions contained in the different acts of Congress, so as to justify this government, in any of its departments, to act upon it for the purpose of transporting these negroes to Africa. In the construction of the different acts of Congress in relation to the slave trade, it is to be observed that the statutes operate only where our municipal jurisdiction might be applied, consistently, with the general theory of international law, to the persons of our citizens, or to foreigners on board of American vessels.-(1 Kent's Commentaries, 182; 3 Wheaton, 610.) And it may be added, that those acts would operate, of course, upon all persons who might violate them within the limits of the United States. But the claimants of these negroes have violated none of our laws. They are within the limits of the United States, to be sure, with their own consent; but that consent resulted from, and was produced by, circumstances so imperious and overruling in their nature as to have left them no choice. They have not come within our territories with the view or intention of violating the laws of the United States; nor had they, before their arrival within the waters of the United States, been guilty of any infraction of them. They have not introduced these negroes into the United States for the purpose of sale, or holding them in servitude within the United States. So far from any illegal intention or design to violate the laws of the United States being established upon the claimants, the case clearly shows that not only no violation of our laws has been committed, but no such violation was in contemplation. It therefore appears to me that this subject must be disposed of upon principles of international law, and the existing treaties between Spain and the United States. It would scarcely be doubted that, under the laws of nations, property rescued from pirates or robbers by a vessel belonging to a friendly power, and brought into a port of that friendly power, would be restored to the rightful owners; and this without any treaty stipulation. The 9th article of the treaty between Spain and the United States, dated 27th October, 1795, (which has been continued in force by a subsequent treaty,) is as follows: "All ships and merchandise, of what nature soever, which shall be rescued out of the hands of any pirates or robbers on the high seas, shall be brought into some port of either state, and shall be de livered to the custody of the officers of that port, in order to be taken care of, and restored entire to the true proprietor, as soon as due and sufficient proof shall be made concerning the property thereof." This makes the case much stronger in favor of the Spanish claimants. There can be no difference, in reason, whether the vessel be captured on the high seas, or within our own waters or ports; because, if captured on the high seas, they are to be brought into port, and delivered into the custody of the appropriate public officers; and if captured after having already come into a port, they should be treated in like manner. It therefore seems to me that this case is clearly within the spirit and meaning of the 9th article, and that the vessel and cargo should be restored entire, so far as practicable. My opinion farther is, that the proper mode of executing this article of the treaty in the present case, would be for the President of the United States to issue his order, directed to the marshal in whose custody the vessel and cargo are, to deliver the same to such persons as may be designated by the Spanish minister to receive them. The reasons which operate in favor of a delivery to the order of the Spanish minister are1. The owners of the vessel and cargo are not all in this country, and, of course, a delivery cannot be made to them. 2. This has become a subject of discussion between the two governments. And, in such a case, the restoration should be made to that agent of the government who is authorized to make, and through whom the demand is made. 3. These negroes are charged with an infraction of the Spanish laws; therefore, it is proper that they should be surrendered to the public functionaries of that government, that, if the laws of Spain have been violated, they may not escape punishment. 4. These negroes deny that they are slaves. If they should be delivered to the claimants, no opportunity may be afforded for the assertion of their right to freedom. For these reasons, it seems to me that a delivery to the Spanish minister is the only safe course for this government to pursue. I have the honor, &c., &c., To the SECRETARY OF STATE. FELIX GRUNDY. RELIEF WHERE PERFORMANCE OF A MAIL CONTRACT IS IMPOSSIBLE. Where proposals, in the usual form, for the transportation of the mail between certain specified points, had been advertised and accepted without certain knowledge, on either side, that the condition of the roads was such that coaches could pass over the route, and, after trial, it was found that they were not such as to permit the execution of said contract, according to its terms-DECIDED, that the contractor be released from further obligations under it, and that he receive compensation for transporting the mail by steamboat, &c. ATTORNEY GENERAL'S OFFICE, SIR: I have had the honor to receive your communication relative to the failure of Albert Toby to perform his contract for carrying the mail in four horse post coaches from Helena to Little Rock, in the State of Arkansas. His failure, it appears, has been produced by no want of good faith or energy on the part of Toby, but by circumstances wholly beyond his control or that of the Post Office Department, to wit: the want of a suitable road or highway over which four-horse post coaches could pass and repass. Of the certainty of this fact, both the Post Office Department and the contractor must be presumed to have been ignorant (and in fact were so) until after the contract had been entered into, and experience tested the impossibility of fulfilling its stipulations. The character of the country, too, (it having been but recently settled,) and the sparseness of its popula tion, together with the circumstances and situation of the parties, all afford conclusive evidence that both parties entered into this contract without any definite knowledge of those facts which subsequently came to light, and which rendered the performance of the contract impracticable. The Post Office Department, surely, would never have made a public advertisement through the medium of the newspapers, in the usual form, and inviting persons to bid for carrying the mail in four-horse post-coaches between the points specified, if it had been known at the time that such a service was impossible of performance. And, on the other hand, the fact that the Post Office Department did issue such a notice to the public, without qualification or explanation, was a weighty reason why the contractor should have taken it for granted, in the absence of personal or other good information to the contrary, that the proposed contract could be performed. It appears, then, that the making of this contract was commenced and completed without certain knowledge of the fact that it could not be performed. I say certain knowledge; because it appears that, before the final completion of the contract, doubts began to be entertained relative to the practicability of its performance; which doubts gained strength in proportion to the progress of the information of the parties, and resulted in the establishment of the fact which has created the present difficulty. I repeat, then, that it appears conclusively that the present embarrassment in this case has proceeded from a mutual want of information, for which neither can be properly held responsible; and in relation to the department, it must necessarily act, in all ordinary cases of this kind, upon the representations of others, and especially of those who are chiefly interested in the establishment of the route, and the faithful performance of the contract for carrying the mail upon it. Under these circumstances, it is my opinion that, upon principles of justice and equity, the contractor in this case is entitled to some relief. And to what extent I consider him thus entitled, I will now proceed to state. It is my opinion and advice to the department, that, as the contractor has already thrown up the contract, he should, in pursuance of the above conclusions, be released from all further obligations under it; and as to the verbal understanding to transport the mail by steamboats, it never was legally binding. That, as to the services rendered by steamboat conveyance on the White river, in substitution of the contract service, he shall receive compensation agreeably to the contract, and nothing more. This was a voluntary service; it has been performed under the clear understanding of both parties that it was in lieu of the contract service, and at the same price; but I am of opinion that Mr Toby is not responsible for the increased expense which the department has to pay for this substituted service, and that it ought not to be charged to Toby's account as a damage occasioned by his failure. And, lastly, I do not perceive that the department can take any official notice of the agreement or partnership between the contractor and James & Hanna; and that, in making payments, Albert Toby, the original contractor, and the only individual who is responsible to the department, is also the only person to whom they can properly be made. I am, sir, &c., &c., To the POSTMASTER GENERAL. FELIX GRUNDY. |