to me to be an assertion by no means sustainable." The ship and cargo were restored, on the principle that the trade was allowed by the laws of Sweden.

proposition *that, in the British courts [*120 of admiralty, the vessel even of a nation which had forbidden the slave trade, but had not conceded the right of search, must, if wrongfully brought in, be restored to the original owner. But the judge goes farther, and shows that no evidence existed to prove that France had, by

118*] *The principle common to these cases is, that the legality of the capture of a vessel engaged in the slave trade, depends on 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 trade, restitution will be decreed; if that law prohibits it, the vessel and cargo will be condemned as good prize.

This whole subject came on afterwards to be considered in The Louis (2 Dodson's Rep., 238). The opinion of Sir William Scott, in that case, demonstrates the attention he had bestowed upon it, and gives full assurance that it may be considered as settling the law in the British courts of admiralty as far as it goes.

The Louis was a French vessel, captured on a slaving voyage, before she had purchased any slaves, brought into Sierra Leone, and condemned by the Vice-Admiralty Court at that place. On an appeal to the Court of Admiralty in England, the sentence was reversed.

this reason, as well as for that previously assigned, the sentence of condemnation was reversed, and restitution awarded.

In the United States, different opinions have been entertained in the different circuits and districts; and the subject is now, for the first time, before this court.

The question whether the slave trade is prohibited by the law of nations has been seriously propounded, and both the affirmative and negative of the proposition have been maintained with equal earnestness.

That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labor, is generally admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of this admission. But from the earliest times war has existed, and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of these was, that the victor might enslave the vanquished. This, which was the usage of all, could not be pronounced repugnant to the law of nations, which is certainly to be tried by the test of general usage. That which has re- [*121

In the very full and elaborate opinion given on this case, Sir William Scott, in explicit terms, lays down the broad principle that the right of search is confined to a state of war. It is a right strictly belligerent in its character, which can never be exercised by a nation at peace, except against professed pirates, who are the enemies of the human race. The act of trading in slaves, however detestable, was not, he said, "the act of freebooters, enemies of the human race, renouncing every country, and 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. 119*] *He also said that this trade could not be pronounced contrary to the law of nations. A court, in the administration of law, cannot attribute criminality to an act where the law imputes none. It must look to the legal standard of morality; and, upon a question of this nature, that standard must be found in the law of nations, as fixed and evidenced by general, and ancient, and admitted practice, by treaties, and by the geneal tenor of the laws and ordinances, and the formal transactions of civilized states; and, looking to those authorities, he found a difficulty in maintaining that the transaction was legally criminal."

The right of visitation and search being strictly a belligerent right, and the slave trade being neither piratical nor contrary to the law of nations, the principle is asserted and main tained with great strength of reasoning, that it cannot be exercised on the vessels of a foreign power, unless permitted by treaty. France had refused to assent to the insertion of such an article in her treaty with Great Britain, and, consequently, the right could not be exercised on the high seas by a British cruiser on a French vessel.

"It is pressed as a difficulty," says the judge, "what is to be done, if a French ship, laden with slaves, is brought in? I answer, without hesitation, restore the possession which has been unlawfully devested; rescind the illegal act done by your own subject, and leave the foreigner to the justice of his own country." This reasoning goes far in support of the

Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent, cannot be pronounced unlawful.

Throughout Christendom, this harsh rule has been exploded, and war is no longer considered as giving a right to enslave captives. But this triumph of humanity has not been universal. The parties to the modern law of nations do not propagate their principles by force; and Africa has not yet adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves. Can those who have themselves renounced this law, be permitted to participate in its effects by purchasing the beings who are its victims?

Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution in those principles of action which are sanctioned by the usages, the national acts, and the general assent of that portion of the world of which he considers himself as a part, and to whose law the appeal is made. If we resort to this standard as the test of international law, the question, as has already been observed, is decided in favor of the legality of the trade. Both Europe and America embarked in it; and for nearly two centuries it was carried on without opposition, and without censure. A jurist could not say that a [*122 practice thus supported was illegal, and that those engaged in it might be punished, either personally, or by deprivation of property. In this commerce, thus sanctioned by univer

United States, with a crew who spoke English, brought her in for adjudication.

She was libeled by the vice-consuls of Spain and Portugal, each of whom claim that portion of the slaves which were conjectured to belong to the subjects of their respective sovereigns; which claims are opposed by the United States on behalf of the Africans.

No principle of general law is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality, that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which is vested in all by the consent of all, can be deduced by the parties has been critically exvested only by consent; and this trade, in which all have participated, must remain law ful to those who cannot be induced to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations; and this traffic remains lawful to those whose governments have not forbidden it.

If it is consistent with the law of nations, it cannot in itself be piracy. It can be made so only by statute; and the obligation of the statute cannot transcend the legislative power of the state which may enact it.

In the argument, the question on whom the onus probandi is imposed, has been considered as of great importance, and the testimony adamined. It is contended that the Antelope, having been wrongfully dispossessed of her slaves by American citizens, and being now, together with her cargo, in the power of the United States, ought to be restored, without further inquiry, to those out of whose possession she was thus wrongfully taken. No proof of property, it is said, ought to be required. Possession is in such a case evidence of property.

Conceding this as a general proposition, the counsel for the United States deny its applicaIf it be neither repugnant to the law of tion to this case. A distinction is taken benations, nor piracy, it is almost superfluous to tween *men, who are generally free, [*125 say in this court that the right of bringing in and goods, which are always property. Alfor adjudication in time of peace, even where though, with respect to the last, possession may the vessel belongs to a nation which has pro- constitute the only proof of property which is 123* hibited the trade, *cannot exist. The demandable, something more is necessary where courts of no country execute the penal laws of men are claimed. Some proof should be exanother; and the course of the American gov-hibited that the possession was legally acquired. ernment on the subject of visitation and search, A distinction has been also drawn between would decide any case in which that right had Africans unlawfully taken from the subjects of been exercised by an American cruiser, on the a foreign power by persons acting under the vessel of a foreign nation, not violating our authority of the United States, and Africans municipal laws, against the captors. first captured by a belligerent privateer, or by a pirate, and then brought rightfully into the United States, under a reasonable apprehension that a violation of their laws was intended. Being rightfully in the possession of an American court, that court, it is contended, must be governed by the laws of its own country; and the condition of these Africans must depend on the laws of the United States, not on the laws of Spain and Portugal.

It follows, that a foreign vessel engaged in the African slave trade, captured on the high seas in time of peace, by an American cruiser, and brought in for adjudication, would be restored.

The general question being disposed of, it remains to examine the circumstances of the particular case.

The Antelope, a vessel unquestionably be longing to Spanish subjects, was captured Had the Arraganta been a regularly commiswhile receiving a cargo of Africans on the sioned cruiser, which had committed no infraccoast of Africa, by the Arraganta, a privateer tion of the neutrality of the United States, her which was manned in Baltimore, and is said to capture of the Antelope must have been conhave been then under the flag of the Oriental sidered as lawful, and no question could have Republic. Some other vessels, said to be Por- arisen respecting the rights of the original tuguese, engaged in the same traffic, were preclaimants. The question of prize or no prize viously plundered, and the slaves taken from belongs solely to the courts of the captor. But, them, as well as from another vessel then in the having violated the neutrality of the United same port, were put on board the Antelope, of States, and having entered our ports, not volunwhich vessel the Arraganta took possession, tarily, but under coercion, some difficulty exlanded her crew, and put on board a prize-ists respecting the extent of the obligation to master and prize crew. Both vessels proceeded restore, on the mere proof of former [*126 to the coast of Brazil, where the Arraganta was possession, which is imposed on this governwrecked, and her captain and crew either lost ment. or made prisoners.

The Antelope, whose name was changed to the General Ramirez, after an ineffectual at124*] tempt to sell the Africans on board at Surinam, arrived off the coast of Florida, and was hovering on that coast, near that of the United States, for several days. Supposing her to be a pirate, or a vessel wishing to smug gle slaves into the United States, Captain Jackson, of the revenue cutter Dallas, went in quest of her, and finding her laden with slaves, commanded by officers who were citizens of the

If, as is charged in the libels of both the consuls, as well as of the United States, she was a pirate, hovering on the coast with intent to introduce slaves in violation of the laws of the United States, our treaty requires that property rescued from pirates shall be restored to the Spanish owner on his making proof of his property.

Whether the General Ramirez, originally the Antelope, is to be considered as the prize of a commissioned belligerent ship of war unlawfully equipped in the United States, or as a

pirate, it seems proper to make some inquiry into the title of the claimants.

restitution of all the Africans taken out of their possession with the Antelope, we cannot doubt the propriety of demanding ample proof of the extent of that possession. Every legal principle which requires the plaintiff to prove his claim in any case, applies with full force to this point; and no countervailing consideration exThe onus probandi, as to the number of Africans which were on board when the vessel was captured, unquestionably lies on the Spanish libelants. Their proof is not satisfactory beyond ninety-three. The individuals who compose this number must be designated to the satisfaction of the Circuit Court.

In support of the Spanish claim, testimony is produced, showing the documents under which the Antelope sailed from the Havana on the voyage on which she was captured; that she was owned by a Spanish house of trade in that place; that she was employed in the busi-ists. ness of purchasing slaves, and had purchased and taken on board a considerable number, when she was seized as prize by the Arraganta. Whether, on this proof, Africans brought into the United States, under the various circumstances belonging to this case, ought to be restored or not, is a question on which much difficulty has been felt. It is unnecessary to state the reasons in support of the affirmative or negative answer to it, because the court is divided on it, and, consequently, no principle is settled. So much of the decree of the Cir127*] cuit Court as directs *restitution to the Spanish claimant of the Africans found on board the Antelope when she was captured by the Arraganta, is affirmed.

There is some difficulty in ascertaining their number. The libel claims one hundred and fifty as belonging to Spanish subjects, and charges that one hundred or more of these were on board the Antelope. Grondona and Ximenes, Spanish officers of the Antelope before her capture, both depose positively to the num ber of one hundred and sixty-six. Some deduction, however, is to be made from the weight of Grondona's testimony, because, he says, in one of his depositions, that he did not count the slaves on the last day when some were brought on board, and adds, that he had lost his papers, and spoke from memory, and from the information he had received from others of the crew, after his arrival in the Havana. Such of the crew as were examined, concur with Grondona and Ximenes as to numbers.

The depositions of the Spanish witnesses on this point, are opposed by those of John Smith, the captain of the General Ramirez, and William Brunton, one of the crew of the Arraganta, who was transferred to the Antelope.

John Smith deposes that ninety-three Africans were found on board the Antelope when captured, which he believes to have been Spanish property. He also says, that one hundred and eighty-three were taken out of Portuguese vessels.

William Brunton deposes that more slaves 128*] *were taken out of the Portuguese ship than were in any other, and that ninety odd were represented by the crew to have been on board the Antelope when she was captured.

If, to the positive testimony of these witnesses, we add the inference to be drawn from the statement of the libel, and the improbability that so large a number of Africans as are claimed could have been procured, under the circumstances in which the Antelope was placed, be tween the 13th, when she was liberated by the first pirate who seized her, and the 23d, when she was finally captured, we are rather disposed to think the weight of testimony is in favor of the smaller number. But supposing perfect equality in this respect, the decision ought, we think, to be against the claimant.

Whatever doubts may attend the question whether the Spanish claimants are entitled to

*We proceed next to consider the libel [*129 of the vice-consul of Portugal. It claims one hundred and thirty slaves, or more, all of whom, as the libelant is informed and believes,” are the property of a subject or subjects of His Most Faithful Majesty; and although “the rightful owners of such slaves be not at this time individually and certainly known to the libelant, he hopes and expects soon to discover them."

John Smith and William Brunton, whose depositions have already been noticed, both state that several Africans were taken out of Portuguese vessels; but neither of them state the means by which they ascertained the national character of the vessels they had plundered. It does not appear that their opinions were founded on any other fact than the flag under which the vessel sailed. Grondona, also, states the plunder of a Portuguese vessel, lying in the same port, and engaged in the same traffic with the Antelope when she was captured; but his testimony is entirely destitute of all those circumstances which would enable us to say that he had any knowledge of the real character of the vessel, other than was derived from her flag. The cause furnishes no testimony of any description, other than these general declarations, that the proprietors of the Africans now claimed by the vice-consul of Portugal were the subjects of his King; nor is there any allusion to the individuals to whom they belong. These vessels were plundered in March, 1820, and the libel was filed in August of the same year. From *that [*130 time to this, a period of more than five years, no subject of the crown of Portugal has appeared to assert his title to this property, no individual has been designated as its probable owner. This inattention to a subject of so much real interest, this total disregard of a valuable property, is so contrary to the common course of human action as to justify serious suspicion that the real owner dares not avow himself.

That Americans, and others, who cannot use the flag of their own nation, carry on this criminal and inhuman traffic under the flags of other countries, is a fact of such general no'toriety, that courts of admiralty may act upon it. It cannot be necessary to take particular depositions, to prove a fact which is matter of general and public aistory. This long, and otherwise unaccountable absence, of any Portuguese claimant, furnishes irresistible testimony that no such claimant exists, and that the real owner belongs to some other nation, and feels the necessity of concealment.

An attempt has been made to supply this defect of testimony, by adducing a letter from

the secretary to whose department the for@gn | captain of the Arraganta. After making the relations of Portugal are supposed to be intrust- apportionment according to this ratio, and deed, suggesting the means of transporting to ducting from the number the ratable loss which Portugal those slaves which may be in the pos- must fall on the slaves to which the Spanish session of the vice-consul, as the property of claimants were originally entitled, the residue his fellow-subjects. Allow to this document *of the said ninety-three are to be de- [*133 all the effect which can be claimed for it, livered to the Spanish claimant, on the terms and it can do no more than supply the want of in the said decree mentioned; and all the re131*] an express power *from the owners of maining Africans are to be delivered to the the slaves to receive them. It cannot be con- United States, to be disposed of according to sidered as ascertaining the owners, or as prov-law; and the said decree of the said Circuit ing their property. Court is, in all things not contrary to this decree, affirmed.

Decree explained-11 Wheat. 413; see S. C. 12 Wheat. 546.

Cited-3 How. 424; 9 How. 382; 7 Wall. 112; 13

Wall 657, 661; Newb. 264; 1 Dill. 224; 2 Wood. & M. 541; 2 Ware (Da.), 385; 8 Bank. Reg. 154; 5 Mason, 471; 2 Cliff. 419, 421.

[INSTANCE COURT.

SLAVE TRADE ACTS.] THE PLATTSBURGH. MARINO, Claimant.

The difficulty, then, is not diminished by this paper. These Africans still remain unclaimed by the owner, or by any person pro fessing to know the owner. They are rightfully taken from American citizens, and placed in possession of the law. No property whatever in them is shown. It is said, that possession, in a case of this description, is equivalent to property. Could this be conceded, who had the possession? From whom were they taken by the Arraganta? It is not alleged that they are the property of the crown, but of some individual. Who is that individual? No such person is shown to exist, and his existence, after such a lapse of time, cannot be presumed. The libel, which claims them for persons entirely unknown, alleges a state of things which is prima facie evidence of an intent to violate the laws of the United States, by the commission of an act which, according to those laws, feiture attaches where the original voyage is comUnder the slave trade act of 1794. c. 11, the forentitles these men to freedom. Nothing what-menced in the United States; whether the vessel ever can interpose to arrest the course of the belong to citizens or foreigners, and whether the law, but the title of the real proprietor. No act is done suo jure, or by an agent for the benefit such title appears, and every presumption is of another person who is not a citizen or resident against its existence.

A question of fact under the slave trade acts, as to a vessel claimed by a Spanish subject, as having been engaged in the trade under the laws of his own country, but proved to have been originally equipped in the United States for the voyage in question.

of the United States.

Circumstances of a pretended transfer to a Spanish subject, and the commencement of a new voyage in a Spanish port, held not to be sufficient to break the continuity of the original adventure,and to avoid the forfeiture.

It is not necessary, to incur the forfeiture under the slave trade acts, that the equipments for the Voyage should be completed. It is sufficient if any preparations are made for the unlawful purpose.

We think, then, that all the Africans, now in possession of the marshal of the district of Georgia, and under the control of the Circuit Court of the United States for that district, which were brought in with the Antelope, 132*] otherwise *called the General Ramirez, except those which may be designated as the property of the Spanish claimants, ought to be delivered up to the United States, to be dis APPEAL from the Circuit Court for the posed of according to law. So much of the sentence of the Circuit Court as is contrary to this opinion, is to be reversed, and the residue affirmed.

Southern District of New York.

This was a seizure of the schooner Plattsburgh, otherwise called the Maria Gertrudes, on the coast of Africa, made by the United States ship of war, the Cyane, in the year 1820. The vessel was brought into the port [*134 of New York for adjudication, and a libel of information was filed in the District Court, under the acts of Congress of 1794, c. 11, and of 1800, c. 205, prohibiting the slave trade. A claim was given in on behalf of Juan Marino, a Spanish subject, and a resident merchant of St. Jago de Cuba. Upon the proofs taken, a decree of condemnation was pronounced in the District Court, which was affirmed in the Circuit Court pro forma, and the cause was brought by appeal to this court.

DECREE. This cause came on to be heard, &c. On consideration whereof, this court is of opinion that there is error in so much of the sentence and decree of the said Circuit Court, as directs the restitution to the Spanish claimant of the Africans in the proceedings mentioned, in the ratio which one hundred and sixty-six bears to the whole number of those which remained alive at the time of pronouncing the said decree; and also in so much thereof as directs restitution to the Portuguese claimant; and that so much of the said decree ought to be reversed, and it is hereby reversed and annulled. And this court, proceeding to give such decree as the said Circuit Court ought to have given, doth direct and order that the restitution to be made to the Spanish claimant, shall be according to the ratio which ninetythree (instead of one hundred and sixty-six) bears to the whole number, comprehending as well those originally on board the Antelope as those which were put on board that vessel by the ports will be found in the Appendix to the present

The cause was argued by Mr. Jones and Mr. Mayer for the appellants, and by the AttorneyGeneral for the respondents. The argument

1.-They cited The Diana, 1 Dodson's Rep. 95; The Louis, 2 Dodson's Rep. 228.

2. He cited The Fortuna, 1 Dodson's Rep. 81, 86: The Donna Marianna, 1 Dodson's Rep. 91; The St. Jago de Cuba, 9 Wheat. Rep. 409.

The cases cited from the English admiralty revolume, (c) p. 40-84.

turned principally upon the question of fact, as | to the origin of the adventure in the United States, and the alleged subsequent transfer to a Spanish subject, so as to change the property, and break the continuity of the voyage. The same grounds of law were also insisted on by both parties, as in the argument of the preceding case of The Antelope; but, as the present cause was determined by the court exclusively upon the facts respecting the alleged sale and change of voyage, it has not been thought necessary to report the arguments of counsel.

tained in the manifest, consisted principally of goods belonging to various shippers, who are not in the slightest degree implicated in any part of the guilt of this transaction; and upon the sales of the same at St. Jago de Cuba, the proceeds were regularly remitted to them. These shippers all contracted with Stark for the shipment and freight of their goods, and he informed one of them that he had [*137 purchased the schooner for certain persons in the Island of Cuba, and that he had no interest in her himself, but was to receive $2,000 for delivering her at that port. How far this statement is reconcilable with the account given of the transaction by the owners of the Plattsburgh, it is unnecessary to examine.

This is a libel founded on the several acts of Congress for the prohibition of the slave trade, At the time of the equipment of the Plattsand contains various distinct allegations, and burgh at Baltimore, there was another vessel. especially counts framed on the slave trade acts the brig Eros, which was also fitting out at that of 1794, ch. 11, and 1800, ch. 205. It is un-port for St. Jago de Cuba, with a cargo suited necessary to enter upon a minute examination of for the slave trade, under the management of the pleadings, because the whole case turns Stark, as charterer for the voyage. This vessel upon the question, whether, in point of fact, the was at first detained by the collector upon susVoyage was originally undertaken from the picion, but he, being satisfied, upon inquiry, United States, or was undertaken by the claim that the owner of the Eros had no intention of ant, Mr. Marino, from the Island of Cuba, having her engaged in the slave trade, afterafter a bona fide purchase made by him, alto- wards released her, taking out some few of her gether disconnected from the original enter-equipments. prise.

The Plattsburgh first dropped down the Chesapeake Bay, and, afterwards (if the witnesses are to be believed), some grape, canister and round shot were taken on board, and, on stowing them away, a barrel of irons, or handcuffs, was discovered, which was not contained in the manifest of the cargo. The vessel then sailed down to New Point Comfort, and there waited ten or twelve days for the Eros, and as soon as the latter appeared, after taking on board Mr. Stark, the Plattsburgh sailed, in company with the Eros, directly for St. Jago de Cuba. The crew on board are represented to have distinctly understood, soon afterwards, that the voyage was designed ultimately for the African coast for slaves.

The Plattsburgh was duly registered at Baltimore as an American vessel, owned by Messrs. Sheppard, D'Arcy & Didier, Jun., of that place, in October, 1817. She cleared out at the custom-house under the command of Captain Joseph F. Smith, in December, 1819, having what is called an assorted cargo on board, on a voyage ostensibly for St. Thomas, in the West Indies, but in reality, for St. Jago, in the Island of Cuba. Up to this period, the ownership remained upon the ship's papers wholly unchanged. But it is now asserted that the shares of D'Arcy and Didier were purchased by Sheppard for the sum of $6,000, and that the voyage was wholly undertaken on his ac- *In due time both vessels arrived at [*138 count. The first remark which arises upon the port of destination, and unladed their this state of the case is, how it should come to cargoes. And here the sale to Mr. Marino is pass, if the purchase were bona fide, that the alleged to have taken place, in entire good 136*] requisite alterations were not made *in faith, for the sum of $12,000, although, upon the ship's papers, since, by the act of Congress, the production of the bill of sale, the sum is unless registered anew upon such sale, the ves there asserted to be $8,000 only. Both of the sel forfeits her American character. Sheppard, vessels are consigned to a Mr. Wanton, at St. in his testimony, gives an extraordinary reason Jago, through whom the negotiation seems to for the occurrence, declaring that he was in- have been made. After the ostensible sale, the solvent at the time of the purchase, and so Plattsburgh underwent repairs under the could not give the usual bond for the proper agency of Wanton, and was in due form made use and delivery up of the registry upon any a Spanish ship, with Spanish national docufuture sale. Yet, according to his own show-ments; and the usual preparations were made, ing, and that of the other part owners, he was, at this time, the owner of one-half of the Plattsburgh, valued at $6,000, and of an interest in another vessel, valued at $4,000. Sheppard further states that one of his inducements to purchase the Plattsburgh was an offer made to him by one George Stark (who became a conspicuous character in the subsequent proceedings), to get for her $12,500, in St. Jago de Cuba, Stark asserting that he was authorized to purchase a vessel at that place. According ly, Sheppard determined to intrust Stark with the negotiation, and a bill of sale of the schooner was executed to Stark, by all the owners, to enable him to convey the same to any purchaser. The cargo of the Plattsburgh, as con

and the usual passports obtained, to equip her for a slave voyage to the coast of Africa, under her new owners. A part of the cargo of the Eros was taken on board of the Plattsburgh, and particularly about 300 casks of gunpowder. The original crew were, apparently, discharged, but Captain Smith, two of the mates, and six or eight of the men, together with Stark, still remained on board, and accompanied the vessel to the coast of Africa, she being, during that voyage, under the nominal command of a Mr. Gonzalez, with the assumed name of the Maria Gertrudes. She was captured, while lying on the coast of Africa, north of the line, by the boats of the United States ship of war Cyane, under Lieutenant Stringham, and was brought