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1825 THE ANTELOPE, THE VICE-ConsuLS OF SPAIN AND PORTUGAL, LIBELANTS. 100 does not extend the principle by which the gen- was once universally participated in by the 101*) eral prohibition *is to be enforced in civilized nations of Europe and America. This the courts of another country, to the case of *fact is avowed by all the speakers on [*103 claimants engaged in the trade permitted by the both sides of the abolition question, in the law of their own country:
British Parliament. It is matter of notorious Is, then, the slave trade contrary to the law history, that both in ancient and modern of nations?
Europe, the condition of slavery, and the comThat law is a body of political ethics applied merce in slaves, were santioned by the universal to nations. Not being reduced to a written practice, and law of nations. The very defini code, we must seek for it in the elementary tion of slavery in the civil law, which has been writings of publicists; in judicial precedents; copied by writers on public law, shows that it and in general usage and practice.' Sir W. was an institution established by positive law, Scott adds to these ample sources the more against the law of nature: Servitus est constitulimited and appropriate standard of ancient and tio juris gentium, qua quis dominio alieno contra admitted practice, not only by treaties, but by naturam subjicitur.* The old common law the laws, ordinances and formal transactions of writers are full of the subject of villeinage, which, civilized States. The great men who drew up it is well known, was not abolished in England the report upon the Silesia loan, declare the until after the period when the African slave law of nations to be founded on justice, trade commenced. The offense of vagrancy equity, convenience, and the reason of the was punished with slavery by the statute, i thing, and confirmed by long usage."
Edw. I., c. 3.5 The first case relating to the As to the judicial precedents, they neutralize African slave trade, is that of Butts v. Pen. each other, if, indeed, the authority of the orig. determined in the 29th of Charles II., being inal case of The Amedie be not entirely sub- trover for negroes. The special verdict found verted by that of Madrazo, v. Willes, and the that they were usually bought and sold in admirable judgment of Sir. W. Scott in The India. In a subsequent case, trover was Louis. To the new conventional law which is brought for a negro in England. Holt, C. J., now attempted to be established in the world, said, that trespass was the kind of action, but the United States have not yet become parties. that trover*would lie, “if the sale was [*104 We cannot enforce the treaties between other in Virginia.” Other cases turn upon questions powers, by which the African slave trade is de- as to the form of action, but they all concur in 102*) nounced *as contrary to humanity and establishing the right to this species of propjustice, and is prohibited to their subjects. No erty.? In 1689, all the judges of England, with jurist has been cited, from the earliest to the the eminent men who then filled the offices of most recent, who has pronounced the trade Attorney and Solicitor-General, concurred in contrary to the positive law of nations. So that opinion, that negroes were merchandise,” the court is left entirely to the light of reason within the general terms of the navigation act.8 in determining the question whether it be con. The famous case of Somerset,' whilst it detrary to the law of nature, as properly applied termined that negroes could not be held as to the conduct of nations and states.
slaves in England, recognized the existence of If this prohibition be a part of the law of slavery in the colonies, as does the whole legal nations, it must be of the modern law of Eu policy, both of that country and of France." ropean nations. Are the United States parties The slave trade was long the subject of negoto that law? And if they are, can they enforce tiations, treaties, and wars, between different its penal sanctions against other nations not European states, all of which consider it as a parties to it?
lawful commerce. The very declarations.in Many principles have been at various periods the recent European congresses, and the negoasserted by confederacies of nations, which tiations between Great Britain and the United have ultimately failed to obtain a place in the States, all show that the slave trade has not yet general code of nations. The principles of the been prohibited by anything like the unaniarmed neutrality of 1780 were maintained by mous consent of nations, so as to make it abso. nearly all the powers of Europe against Great lutely unlawful in the view of a court of the Britain alone; and yet her doctrines have not law of nations. ceased to regulate the conduct of nations en- The United States have done all in their gaged in war. It is, at least, doubtful which power, consistently with their constitution, to is the true law of nations. The supposed in- abolish the trade. But they have sought to consistency of the slave trade with the law of abolish it by municipal means only. They have nature, will not alone condemn it in the view prohibited it to their own citizens, not only by the of a court of justice, so as to authorize all na ordinary *penal sanctions of revenue (* 105 tions to treat it as a crime, or to enforce its pro- and trade laws; but they have made it a criminal "hibition by the confiscation of the property of offense, and punished it as piracy. No treaty those engaged in it. It becomes all reflecting has yet been ratified with any foreign power, men to think seriously, and speak cautiously, by which they engage to co-operate with the on the subject of the illegality of a trade which 'United States in the prohibition; and yet the
1.- United States v. Smith, 5 Wheat. Rep. 160.
4.-Domat, Loix Civ. Prel., tit. 2, s. 2; Woods'
5.--4 Reeve's Hist. Law, 451.
7.-2 Salk. 666; 1 Lord Raym. 146; 5 Mod. Rep. 185; Carth. 596.
8.—2 Chalmers' Opinion of Eminent Lawyers, 263. 9.-Cot ett's Stat Trials, Vol. XX., p. 1.
10.-Valin Ord. de da Mar., liv. 2, tit. 1, du Capitaine, art. 16.
court is called on to anticipate, by judicial leg- fined by our laws; which must be the rule to islation, the exercise of the treaty-making guide the determination of the court. They power, and to refuse restitution to the subjects are placed under the protection of those laws, of Spain and Portugal, of that which they claim and are, prima facie, free. On whom, then, is as their property, under the laws of their own the onus probandi thrown. Being here rightcountry. This property has been brought into fully, they are under the protection of our laws our jurisdiction in consequence of its having and courts of justice. No person can claim a been taken from the possession of the original right to take them from the custody of the court, owners, by armaments fitted out in our ports in and carry them away into slavery, but those violation of our neutrality. The duty of resti- who can prove them to be slaves; who can tution is therefore plain, under the laws and prove it by such evidence as ought alone to be treaties of the Union, and the uniform decisions held sufficient in a question of freedom or of this court.
slavery. This view of the case settles the ques The learned counsel also entered into a min. tion of the burthen of proof. He who would ute and elaborate examination of the proofs of seek to disturb the apparently rightful condiproprietary interest, and reiterated many of the tion of things, assumes the burthen of proving grounds of argument insisted on by his asso- his own right. This is the ordinary doctrine of ciate. But as they have been already fully the Court of Admiralty, if the seizure has been stated in the report of Mr. Berrien's argument, rightful, and the case is, prima facie, a case for it has not been thought necessary to repeat condemnation. The onus probandi is thrown them.
upon the claimant to prove his property, and The Attorney-General, for the appellants, in his right to restitution. But, in the present reply, answered the objection, that the only case, the rule is peculiarly applicable, and the question presented by the pleadings, on the part clearness and fullness of the *proof (*108 of the United States, was, whether this was a ought to be in proportion to the importance of trade in breach of the slave trade acts? He in the matter in controversy. The case is one of sisted, that as the libels filed by the Spanish and human liberty. The Africans stand before the Portuguese consuls, demanded restitution upon court as if brought up before it upon a habeas 106*) the *ground of the illegal armament in corpus. Suppose them here,on such a process, our ports, and the claim, or defensive allega asserting their freedom, and claiming your protion, given in by the United States, resisted that tection; what kind of proof would you exact demand upon two specific grounds: (1st) That from those who claim to hold them in slavery? the Africans were taken on board with intent Most certainly you would not demand inferior to import the same, &c.; and (2d) that the ves- evidence to that which you require in a case of sel was found hovering on the coast with the life or death. The witnesses must present themsame persons on board. If the testimony dis- selves fairly before you. Their statements closed a case on which it would be proper for must be clear and consistent, and such as to the United States to interpose, which was not command the confidence of the court. They reached by the pleadings, the consequence would must be sustained by the documentary evidence: be, not that the decrees should be affirmed, but and, where any doubt is left, the decision that the cause would be remanded, with should be in favorum libertatis. directions to amend. And, supposing the The claimants wish the court to consider this United States to have made no case by their as a question exclusively between Spain on one pleadings, the question was, have the libelants side, and the United States on the other, in made a case which justifies the decree? The which these persons are to be considered as Africans are parties to the cause, at least such “ effects," and merchandise," taken by pirates, of them as are free; and even if the other par- and as such liable to restitution under the stiputies had colluded to make a case for restitution, lations of the treaty of 1795. But is the court they would still have been entitled to the pro- at liberty so to consider them, under the laws tection of the court.
of our own country? Some of them are conAs to the seizure by the revenue cutter, he in- fessedly free, because the decree has established sisted that it was justifiable under the slave the fact. Which of them are slaves, it is im. trade act of the 2d of March, 1807, s. 7, which possible to determine by any rule of evidence forfeits any ship or vessel found hovering on known to our practice. The claimants must the coast of the United States, having on board prove their property; and this involves the neany negro, mulatto, or person of color, for the cessity of proving that these persons are proppurpose of selling them as slaves,or with intent erty. They must prove that they are property. to land the same in any port or place within the and that they are *their property. Pos- [*109 jurisdiction of the United States.". This act session may be a sufficient indicium of property, made no distinction as to the national character in those places where the local law makes a of the ship, whether it belonged to citizens or particular subject property. The local laws of foreigners. So, also, the act of the 15th of some of the states, generally make persons of May, 1820, c. 113, s. 5, makes the slave trade color, prima facie, slaves, and throw the bur. 107*] *piracy, where it is carried on by citi- then of proof upon them to show the contrary. zens of the United States. So that, whether we But even in those states, the possession of a regard the predicament of the vessel, or of the newly imported African would not be evidence persons engaged in the transaction, the seizure of property. The question, therefore, recurs, was fully warranted by the laws applicable to is it enough to justify the court in delivering the case.
Captain Jackson performed only an up these persons to the parties for whom they act of duty in capturing and bringing in the are claimed, to show a possession on the high vessel for adjudication,
seas? Is the mere possession of such persons The question, then, recurs, what was the con- a sufficient evidence of their slavery to justify dition of the Africans thus brought in, as de-I it in restoring them as claimed? The questiça
is not whether the cruisers of the United States | hence, that, by the law of nations, he has a have a right to seize a Spanish slave ship upon right to make slaves of them. The African the high seas, bring her in for adjudication, and opens the volume of the law of nations, and throw the burthen of proof of proprietary in shows that the foundations of that code are terest upon the claimants. Any such right of laid in justice and humanity, and that no legitinterference with foreign states, their subjects, imate right can grow out of a violation of these or people, is disclaimed. But these people are principles. If he is answered, that the trade here, in the custody of the court, without any had its origin in humane motives, he may well invasion of the sovereignty of foreign nations upbraid us for such a vindication. Nor does on our part; for the piratical vessel, which took the existence of slavery in the United States them out of other vessels sailing under Spanish form any excuse or palliation, for perpetuating, and Portuguese colors, was not acting under and extending the guilt and misery of the slave the authority, or upon the responsibility of the trade. Slavery was introduced among us, durUnited States. They are brought here by a ing our colonial state, against the solemn reseizure authorized by our own laws, and per- monstrances *of our legislative assem- [*112 fectly consistent with the sovereignty and inde- blies. Free America did not introduce it. She pendence of Spain and Portugal. The laws, un- led the way in measures for prohibiting the der wbich they were seized and brought in, de slave trade. The revolution which made us 110*) clare *them to be entitled to their free an independent nation, found slavery existing dom. Can the court surrender them as slaves among us. It is a calamity entailed upon us upon no other proof than mere naked posses- by the commercial policy of the parer sion? Is the possession of Africans, on the coast try. There is no nation which has a right to of Africa, sufficient evidence of title, per se, reproach us with the supposed inconsistency of without connecting that possession with any our endeavoring to extirpate the slave trade as law, international or municipal, to justify the carried on between Africa and America, whilst court in taking an active part in consigning to at the same time we are compelled to tolerate slavery these persons, thus placed under its pro- the existence of domestic slavery under our tection?
own municipal laws. It is unnecessary for the United States to It may well be asked, whether Africa is withshow that the possession was, prima facie, out the pale of the law of nations, Are not wrongful. The opposite parties, who call Africans in their own country, under the proupon the active aid of the court to maintain tection of that law? If it be answered, that that possession, must prove that it was rightful. the condition of slavery has existed from time
The real question, then, is, whether the mere immemorial, growing out of the exercise of the possession, under such circumstances, is suffi- rights of war, as understood and practiced in cient evidence of title, not as against the United that barbarous country, it may be replied, that States, but as against these Africans. The court those very wars have been stimulated by the will not shut their eyes to what is passing in arts and avarice of the slave traders. This fact the world. Such a possession may be evidence is shown by the most conclusive evidence, in of title in some of the states of this Union, and the examinations before the House of Commons in the European colonies. It might have been in 1791. It appears, also, by the more recent so formerly on the coast of Africa. But it is reports of the American and British naval offi. not so now, even under the municipal laws of cers, and the agents of the London African Spain and Portugal. Both of these powers Institution, and American Colonization Sociehave prohibited the slave trade on the coast of ty. Unless, therefore, the slave traders can Africa to the north of the line, since 1815. It derive a right, founded *upon wrong [*113 was prohibited long before by the United practiced at their instigation, this argument States and Great Britain, on every part of the cannot avail them. coast, and of the world. It has been prohibit- Their possession, then, derives no support ed by France, Holland, and all the principal from the law of nations. Supposing that by maritime states of Europe. Under these cir- the municipal law of Spain these persons are cumstances, it is impossible for the court to say slaves, whilst by your law they are free; being 111*] that possession on the coast of *Africa brought into this country without any trespass is so habitually found in connection with right, on the sovereign rights of Spain, is the court under the municipal laws of the country to bound to restore them from comity? If the which the vessel belongs, as to constitute prima general law of nations binds us to do this, it facie evidence of property. The presumption also binds us to deliver up persons charged ought rather to be reversed. The natives of with crimes, or even with political offenses. Africa, however imperfect may be their civili. But this is a principle which has been repudization, compose an independent nation. By the ated by all nations. The stipulation in the general law of nations, they are as free as the Spanish treaty, by which we are bound to reSpaniards, or the Portuguese. Hence, it may store the ships and effects, or merchandise of be seen that the mere possession of an African, Spanish subjects, when captured within our claiming him as a slave, by a Spanish ship on territorial jurisdiction, or by pirates on the the coast of Africa, would no more prove the high seas, does not apply: These Africans are African a slave, than the possession of a Span- not “ effects,” or “merchandise. To say that iard, by an African ship on the coast of Spain, they are so, is to beg the whole question in would prove the Spaniard a slave. The actual controversy. The opinions of the twelve possessor must, therefore, show some other judges of England, and of the law officers of right than mere possession. The Spaniard alleges that it has been the practice of the civil
1.- Hargrave's argument, in Somersett's case, 11 ized and Christian nations of Europe, to make State Trials, 346. slaves of the Africans for three centuries; and 1.-Somersett's case, 11 State Trials, 339, 346.
the crown, in 1689, which have been cited to | eral sentiment was at length roused against it, show that negroes were considered as merchan- and the feelings of justice and humanity, redise, within the terms of the navigation act, gaining their long lost ascendency, prevailed only prove that they were so considered at that so far in the British Parliament as to obtain an time with reference to the British colonies, into act for its abolition. The utmost efforts of the which their importation was then permitted. British government, as well as of that of the Even at that period, negroes in England were United States, have since been assiduously emnot considered as merchandise, or the objects ployed *in its suppression. It has [*116 of traffic, or liable to be held in servitude. been denounced by both in terms of great Everything must depend upon the law prevail. severity, and those concerned in it are subject114*) ing *at the time and place. By the law ed to the heaviest penalties which law can inapplicable to this case, these persons are free; flict. In addition to these measures operating they cannot, therefore, be considered as mer- on their own people, they have used all their chandise or effects within the treaty.
influence to bring other nations into the same
system, and to interdict this trade by the conMr. Chief Justice MARSHALL delivered the sent of all. opinion of the court, and after stating the case, Public sentiment has, in both countries, kept proceeded as follows:
pace with the measures of government; and the In prosecuting this appeal, the United States opinion is extensively, if not universally enterassert no property in themselves. They appear tained, that this unnatural traffic ought to be in the character of guardians, or next friends, suppressed. While its illegality is asserted by of these Africans, who are brought, without some governments, but not admitted by all; any act of their own, into the bosom of our while the detestation in which it is held is country, insist on their right to freedom, and growing daily, and even those nations who submit their claim to the laws of the land, and tolerate it in fact, almost disavow their own to the tribunals of the nation.
conduct, and rather connive at, than legalize, The consuis of Spain and Portugal, respect the acts of their subjects; it is not wonderful ively, demand these Africans as slaves, who that public feeling should march somewhat in have, in the regular course of legitimate com- advance of strict law, and that opposite opinmerce, been acquired as property by the sub- ions should be entertained on the precise cases jects of their respective sovereigns, and claim in which our own laws may control and limit their restitution under the laws of the United the practice of others. Indeed, we ought not States.
to be surprised, if, on this novel series of cases, In examining claims of this momentous im- even courts of justice should, in some inportance; claims in which the sacred rights of stances, have carried the principle of suppresliberty and of property oome in conflict with sion farther than a more deliberate consideraeach other; which have drawn from the bar ation of the subject would justify. degree of talent and of eloquence worthy of The Amedie (1 Acton's Rep., 240), which the questions that have been discussed; this was an American vessel employed in the court must not yield to feelings which might African trade, was captured by a British seduce it from the path of duty, and must obey cruiser, and condemned in the Vice-Admiralty the mandate of the law.
Court of Tortola. *An appeal was [*117 That the course of opinion on the slave trade prayed; and Sir William Grant, in delivering should be unsettled, ought to excite no surprise. the opinion of the court, said, that the trade The Christian and civilized nations of the being then declared unjust and unlawful by 115*] world, *with whom we have most in- Great Britain, “a claimant could have no tercourse, have all been engaged in it. How right, upon principles of universal law, to ever abhorrent this traffic may be to a mind claim restitution in a prize court, of human whose original feelings are not blunted by fa- beings carried as his slaves. He must show miliarity with the practice, it has been sanc- some right that has been violated by the capttioned in modern times by the laws of all na- ure, some property of which he has been distions who possess distant colonies, each of possessed, and to which he ought to be rewhom has engaged in it as a common commer- stored. In this case, the laws of the claimcial business which no other could rightfully ant's country allow of no right of property such interrupt. It has claimed all the sanction as he claims. There can, therefore, be no which could be derived from long usage, and right of restitution. The consequence is, that general acquiescence. That trade could not the judgment must be affirmed.” be considered as contrary to the law of nations The Fortuna (1 Dodson's Rep., 81), was which was authorized and protected by the condemned on the authority of The Amedie, laws of all commercial nations; the right to and the same principle was again affirmed. carry on which was claimed by each, and al- The Diana (1 Dodson's Rep., 95), was a lowed by each.
Swedish vessel, captured with a cargo of slaves, The course of unexamined opinion, which by a British cruiser, and condemned in the was founded on this inveterate usage, received Court of Vice-Admiralty at Sierra Leone. This its first check in America; and, as soon as these sentence was reversed on appeal, and Sir Willstates acquired the right of self-government, iam Scott, in pronouncing the sentence of rethe traffic was forbidden by most of them. In versal, said, "the condemnation also took the beginning of this century, several humane place on a principle which this court cannot in and enlightened individuals of Great Britain any manner recognize, inasmuch as the sendevoted themselves to the cause of the Afri. tence aflirms, 'that the slave trade, from mocans; and, by frequent appeals to the nation, in tives of humanity, hath been abolished by most which the enormity of this commerce was un civilized nations, and is not, at the present veiled and exposed to the public eye, the gen. I time, legally authorized by any.' This appears to me to be an assertion by no means sustain- | proposition *that, in the British courts (*120 able.". The ship and cargo were restored, on of admiralty, the vessel even of a nation which the principle that the trade was allowed by the had forbidden the slave trade, but had not conlaws of Sweden,
ceded the right of search, must, if wrongfully 118*] *The principle common to these brought in, be restored to the original owner. cases is
, that the legality of the capture of a But the judge goes farther, and shows that no vessel engaged in the slave trade, depends on evidence existed to prove that France had, by the law of the country to which the vessel be- law, forbidden that trade. Consequently, for longs. If that law gives its sanction to the this reason, as well as for that previously astrade, restitution will be decreed; if that law signed, the sentence of condemnation was reprohibits it, the vessel and cargo will be con- versed, and restitution awarded. demned as good prize.
In the United States, different opinions have This whole subject came on afterwards to be been entertained in the different circuits and considered in The Louis (2 Dodson's Rep., districts; and the subject is now, for the first 238). The opinion of Sir William Scott, in that time, before this court. case, demonstrates the attention he had be. The question whether the slave trade is prostowed upon it, and gives full assurance that hibited by the law of nations has been seriousit may be considered as settling the law in the ly propounded, and both the affirmative and British courts of admiralty as far as it goes, negative of the proposition have been main
The Louis was a French vessel, captured on tained with equal earnestness. a slaving voyage, before she had purchased any That it is contrary to the law of nature will slaves, brought into Sierra Leone, and con- scarcely be denied. That every man has a demned by the Vice-Admiralty Court at that natural right to the fruits of his own labor, place. On an appeal to the Court of Admiral- is generally admitted; and that no other periy in England, the sentence was reversed. son can rightfully deprive him of those fruits,
In the very full and elaborate opinion given and appropriate them against his will, seems on this case, Sir William Scott, in explicit to be the necessary result of this admission. terms, lays down the broad principle that the But from the earliest times war has existed, right of search is contined to a state of war. It and war confers rights in which all have acis a right strictly belligerent in its character, quiesced. Among the most enlightened nawhich can never be exercised by a nation at tions of antiquity, one of these was, that the peace, except against professed pirates, who victor might enslave the vanquished. This, are the enemies of the human race. The act of which was the usage of all, could not be protrading in slaves, however detestable, was not, nounced repugnant to the law of nations, he said, “the act of freebooters, enemies of the which is certainly to be tried by the test of human race, renouncing every country, and i *general usage. "That which has re- [*121 ravaging every country, in its coasts and ves. ceived the assent of all, must be the law of all. sels, indiscriminately.” It was not piracy. Slavery, then, has its origin in force; but as 119*] *He also said that this trade could the world has agreed that it is a legitimate result not be pronounced contrary to the law of na- of force, the state of things which is thus protions. " A court, in the administration of law, duced by general consent, cannot be procannot attribute criminality to an act where nounced unlawful. the law imputes none. It must look to the Throughout Christendom, this harsh rule legal standard of morality; and, upon a ques. has been exploded, and war is no longer contion of this nature, that standard must be sidered as giving a right to enslave captives. found in the law of nations, as fixed and evi. But this triumph of humanity has not been denced by general, and ancient, and admitted universal. The parties to the modern law of practice, by treaties, and by the geneal tenor nations do not propagate their principles by of the laws and ordinances, and the formal force; and Africa has not yet adopted them. transactions of civilized states; and, looking Throughout the whole extent of that immense to those authorities, he found a difficulty in continent, so far as we know its history, it is maintaining that the transaction was legally still the law of nations that prisoners are slaves. criminal."
Can those who have themselves renounced this. The right of visitation and search being law, be permitted to participate in its effects by strictly a belligerent right, and the slave trade purchasing the beings who are its victims? being neither piratical nor contrary to the law Whatever might be the answer of a moralist of nations, the principle is asserted and main- to this question, a jurist must search for its tained with great strength of reasoning, that it legal solution in those principles of action cannot be exercised on the vessels of a foreign which are sanctioned by the usages, the national power, unless permitted by treaty. France acts, and the general assent of that portion of had refused to assent to the insertion of such an the world of which he considers himself as a article in her treaty with Great Britain, and, part, and to whose law the appeal is made. If consequently, the right could not be exercised we resort to this standard as the test of interon the high seas by a British cruiser on a national law, the question, as has already been French vessel.
observed, is decided in favor of the legality of " It is pressed as a difficulty,” says the the trade. Both Europe and America embarked judge, “what is to be done, if a French ship, in it; and for nearly iwo centuries it was carladen with slaves, is brought in? I answer, ried on without opposition, and without cenwithout hesitation, restore the possession which sure. A jurist could *not say that a (*122 has been unlawfully devested; rescind the il practice thus supported was illegal, and that legal act done by your own subject, and leave those engaged in it might be punished, either the foreigner to the justice of his own country.” personally, or by deprivation of property.
This reasoning goes far in support of the In this commerce, thus sanctioned by univer