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that is to be restored.  There is no provision for the surrender of the pirates themselves.  And the reason is, because the article has reference only to those who are "hostes humani generis," whom it is lawful for, and the duty of all nations to capture and to punish.  If these Africans were "pirates" or sea robbers, whom our naval officers might lawfully seize, it would be our duty to detain them for punishment; and then what would become of the "merchandise?"

But they were not pirates, nor in any sense hostes humani generis.  Cinque, the master-spirit who guided them, had a single object in view.  That object was——not piracy or robbery——but the deliverance of himself and his companions in suffering, from unlawful bondage.  They owed no allegiance to Spain.  They were on board of the Amistad by constraint.  Their object was to free themselves from the fetters that bound them, in order that they might return to their kindred and their home.  In so doing they were guilty of no crime, for which they could be held responsible as pirates.  See Bee's Rep. 273.  Suppose they had been impressed American seamen, who had regained their liberty in a similar manner, would they in that case have been deemed guilty of piracy and murder?  Not in the opinion of Chief Justice Marshall.  In his celebrated speech in justification of the surrender by President Adams of Nash under the British Treaty, he says: "Had Thomas Nash been an impressed American, the homicide on board the Hermoine would most certainly not have been murder.  The act of impressing an American is an act of lawless violence.  The confinement on board a vessel is a continuation of that violence, and an additional outrage.  Death committed within the United States in resisting such violence would not have been murder."  Bee's Rep. 290.

The United States, as a nation, is to be regarded as a free State.  And all men being presumptively free, when "merchandise" is spoken of in the Treaty of a free State, it cannot be presumed that human beings are intended to be included as such.  Hence, whenever our Government have intended to speak of negroes as property in their Treaties, they have been specifically mentioned, as in the Treaties with Great Britain of 1783 and 1814.  It was on the same principle that Judge Drayton, of South Carolina, decided in the case of Almeida, who had captured during the last wat an English vessel with slaves, that the word "property" in the prize act, did not include negroes, and that they must be regarded as prisoners of war, and not sold or distributed as merchandise.  5 Hall's Law Journal, 459.

And it was for the same reason that it was deemed necessary in the