University of Virginia Library

3326. FUGITIVES, Slaves.—

Complaint
has been made by the representatives of
Spain that certain individuals of Georgia entered
the State of Florida, and without any
application to the Government, seized and
carried into Georgia, certain persons, whom
they claimed to be their slaves. This aggression
was thought the more of, as there exists
a convention between that government and
the United States against receiving fugitive
slaves. The minister of France has complained
that the master of an American vessel,
while lying within a harbor of St. Domingo,
having enticed some negroes on
board his vessel, under pretext of employment,
brought them off, and sold them in
Georgia as slaves. 1. Has the General Government
cognizance of these offences? 2. If
it has, is any law already provided for try

ing and punishing them? 1. The Constitution
says “Congress shall have power to lay
and collect taxes, duties, imposts and excises,
to pay the debts, &c., provide for the common
defence and general welfare of the United
States”. I do not consider this clause as
reaching the point. * * * The Constitution
says further, that Congress shall have
power to “define and punish piracies and
felonies committed on the high seas, and offences
against the law of nations”. These
offences were not committed on the high
seas, and consequently not within that
branch of the clause. Are they against the
law of nations, taken as it may be in its whole
extent, as founded, 1st, in nature; 2d, usage;
3d, convention. So much may be said in the
affirmative, that the legislators ought to send
the case before the judiciary for discussion;
and the rather, when it is considered that
unless the offenders can be punished under
this clause, there is no other which goes directly
to their case, and consequently our
peace with foreign nations will be constantly
at the discretion of individuals. 2. Have the
legislators sent this question before the
Courts by any law already provided? The
act of 1789, chapter 20, section 9, says the
district courts shall have cognizance concurrent
with the courts of the several States,
or the circuit courts, of all causes, where an
alien sues for a tort only, in violation of
the law of nations; but what if there be no
alien whose interest is such as to support
an action for the tort?—which is precisely
the case of the aggression on Florida. If
the act in describing the jurisdiction of the
Courts, had given them cognizance of proceedings
by way of indictment or information
against offenders under the law of nations, for
the public wrong, and on the public behalf,
as well as to an individual for the special tort,
it would have been the thing desired. The
same act, section 13, says, the “Supreme
Court shall have exclusively all such jurisdiction
of suits or proceedings against ambassadors,
or other public ministers, or their
domestics or domestic servants, as a court of
law can have or exercise consistently, with
the law of nations”. Still this is not the case,
no ambassador, &c., being concerned here. I
find nothing else in the law applicable to this
question, and therefore presume the case is
still to be provided for, and that this may be
done by enlarging the jurisdiction of the
courts, so that they may sustain indictments
and informations on the public behalf, for
offences against the law of nations. [206] —
Opinion on Fugitive Slaves. Washington ed. vii, 601. Ford ed., vi, 141.
(1792)