Majority — Marshall C.J.
p. 66[Prize. Instance Court. Slave Trade.]The Antelope. The Vice-Consuls of Spain and Portugal, Libellants.Syllabus
The African slave trade is contrary to the law of nature, but is not prohibited by the positive law of nations.Although the slave trade is now prohibited by the laws of most civilized nations, it may still be lawfully carried on by the subjects of those nations who have not prohibited it by municipal acts or treaties.
The slave trade is not piracy, unless made so by the treaties or statutes of the-nation to whom the party belongs.,
The right of visitation and search does not exist in time of peace. A vessel engaged in the slave trade, even if prohibited by the laws of the country to which it belongs, cannot, for that cause alone, be seized on. the high seas, and brought in for adjudication, in time of peace, in the Courts of another country. But if the laws of that other country be violated, or the proceeding be authorized by treaty, the act of capture is not in that case unlawful.
p. 67It seems, that in case of such a seizure, possession of Africans is not a sufficient evidence of property, and that the onus probandi is thrown upon the claimant, to show that the possession was lawfully acquired.
Africans who are first captured by a belligerent privateer, fitted out in violation of our neutrality, or by a pirate, and then recaptured and brought into the ports of the United States, under a reasonable suspicion that a violation of the Slave Trade Acts was intended, are not to be restored without full proof of the proprietary interest; for in such a case the capture is lawful.
And whether, in such a case, restitution ought to be decreed at all, was a question on which the Court was equally divided.
Where the Court is equally divided, the decree of the Court below is of course affirmed, so far as the point of division goes.
Although a consul may claim for subjects unknown of his nation, yet restitution cannot be decreed without specific proof of the individual proprietary interest.
Appeal from the Circuit Court of Georgia.
These cases were allegations filed by the Vice-Consuls of Spain and Portugal, claiming certain Africans as the property of subjects of their nation. The material facts were as follows: A privateer, called the Colombia, sailing under a Venezuelan commission, entered the port of Baltimore, in the year 1819; clandestinely shipped a crew of thirty or forty men; proceeded to sea, and hoisted the Artegan flag, assuming the name of the Atraganta, and prosecuted a voyage along the coast of Africa ; her officers and the greater part of her crew being citizens of the United States. Off the coast of Africa she captured an American vessel, from Bristol, in Rhode Island, from which she took twenty-five Africans; she captured several Portuguese vessels, from which she also took Africans; and she captured a Spanish vessel, called the Antelope, in which she
p. 68also took a considerable number of Africans. The two vessels then sailed in company to the coast of Brazil, where the Arraganta was wrecked, and her master, Metcalf, and a great part of his crew, made prisoners; the rest of the crew, with the armament of the Arraganta, were transferred to the Antelope, which, thus armed, assumed the name of the General Ramirez,. under the command of John Smith, a citizen of the United States; and on board' this vessel were all the Africans, which had been captured by the privateer in the course of her voyage. This vessel, thus freighted, was found hovering near the coast of the United States, by the revenue cutter, Dallas, under the command of Captain Jackson, and finally brought into the port of Savannah for adjudication. The Africans, at the time of her capture, amounted to upwards of two hundred and eighty. On their arrival, the vessel, and the Africans, were libelled, and claimed by the Portuguese and Spanish Vice-Consuls reciprocally. They were also claimed by John Smith, as captured jure belli. They were claimed by the Uninted States, as having been transported from foreign parts by American citizens, in contravention to the laws of the United States, and as entitled to their freedom by those laws, and by the law of nations. Captain Jackson, the master of the. revenue cutter, filed an alternative claim for the bounty given by. law, if the Africans should be adjudged to the United States; or to salvage, if the whole subject should.be adjudged to the Portuguese and Spanish Consuls.
p. 70tice of the facts which appeared in the other transcript; but that the two causes must come on separately, and in their order. But it has been thought most expedient to report the two arguments together.The reasons assigned in the appellants case, for reversing the decrees of the Court below, were as follows :1st. That the possession of these Africans by the claimants, before the capture by the privateer, affords no presumption that they were their property; that they must show a law entitling them to hold them as property.2. That if these Africans are to be considered as having been in a state of slavery, when in the Spanish and Portuguese vessels from which they were taken, and if the Court shall consider itself bound to restore them to the Condition from which they were taken, this can be done only by placing them in the hands of those who shall prove themselves to have been the owners; and that this purpose, cannot be answered by restoring them to the Consuls of Spain and Portugal.3. That if some of these. Africans were. the property of the claimants, yet some were not; and failing to prove which were theirs, the decree is erroneous, in determining by lot, a matter which the claimants were bound to establish by proof.Mr. Key, for the appellants,
argued, that the facts of the case presented the question to be considered in a point of view, peculiarly favoura
p. 71ble to the appellants. A piratical vessel was found hovering near our coast, apparently meditating a violation of our laws. It was brought, with the persons on board, into the custody of the Court, by an act of seizure, not only lawful, but meritorious towards the claimants, since it rescued what they claim as their property, from the grasp of pirates. If the claimants had not interposed, the course of the Court would have been obvious. The illegal and piratical capture by our citizens, gave them no rights; and even if it did, they instantly forfeited them under our laws, which they intended to violate. But the claimants, demand restitution of the Africans found on board this vessel, alleging them to be their property, lawfully acquired on the coast of Africa, and piratically taken from them by the Arraganta. This demand is resisted by the government of the United States, upon the ground that the persons in question are not by our laws to be considered as slaves, but as freemen. These laws the Court must administer, and uot the laws of Spain. Our national policy, perhaps our safety, requires, that there should be no increase of this species of population within our territory. The acts of Congress provide that, however brought here, they shall be set free, and sent back to.their own native country. The Spanish and Portuguese claimants demand them as their property. We repel the claim, by asserting their right to liberty. The demand of restitution is inconsistent with our policy, as declared in our statutes and other
p. 73owner. But these are men, of whom it cannot be affirmed, that they have Universally and necessarily an owne In some particular and excepted cases, depending upon the local law and usage, they may be the subjects of property and ownership ; but by the law of nature all men are free. The presumption that even black men and Africans are slaves, is not a universal presumption. It would be manifestly unjust, to throw the onus probandi upon them to prove their birthright. Whatever may have once been the condition of Africa, and of the African slave’ trade, the authentic information on this subject will show, that it is now impossible to determine, by the fact of possession, whether the party has been lawfully acquired or not. There just be an overwhelming probability of the lawfulness of such acquisition, to raise such a presumption. This is instanced by the different presumptions allowed in different parts of our own country, in. respect to this description of persons. In the southern States, there is the highest degree of probability, from universal practice and well known law, that such persons, are slaves. But in the northern States, the probability is just the contrary, and the presumption is reversed. And in the present state of the slave trade, Africans, in a slave ship on the high seas, are in no such circumstances as to raise a presumption that they are lawfully held in slavery. For if there be a permitted slave trade, there is also a prohibited slave trade; and the prohibition is much more extensive than the per
p. 74mission. The claimants must, consequently, show something more than mere possession. They must show a law, making such persons property, and that they acquired them under such law. In order to maintain their title, they show the municipal law of Spain ; but the operation of that law can only extend throughout the territory of Spain/and to Spanish vessels on the high seas. .These persons are now within the jurisdiction of our conflicting law; and they are brought here without any violation of the sovereign rights of Spain. Our own law, which is in force here, must prevail over the law of Spain, which cannot have an extra-territorial operation. There is no reason of comity, or policy, or justice, which requires us to give effect to a foreign law conflicting with our own law on the same subject. Besides, the Spanish law is not only contrary to ours, but is inconsistent with the law of nature, which is a sufficient reason for maintaining the supremacy of our own code. If this municipal law of Spain were allowed to prevail against our law, in our own territory, and before our own Courts, the same effect must be given to the law of every other country, under the same circumstances. If, instead of' these Africans, there had been taken by the same illegal capture, Spanish slaves, from an Algerine corsair, and afterwards brought in the same manner into our ports, they might, upon the same principle, be reclaimed by the representative of managers, who could easily show, that, by the law prevailing among the Barbary states, they were slaves.The municipal law of Spain, then; is insuffi
p. 79evidence taken before the British House of Commons in. 1790, by the investigations of the African Institution, and by the reports of the British and American naval officers, to have entirely changed its character. Slaves are no longer acquired merely by capture in war, or by trade ; but free persons are seized and carried off by the traders and their agents. Wars are instigated by them, for the mere purpose of making slaves. The persons thus enslaved are clandestinely brought away, under circumstances of extreme cruelty, aggravated by the necessity of concealment, and smuggled into every country where the cupidity of avarice creates a demand for these unhappy victims. May it not be asked, is this trade ? Is it lawful ? Has it not so changed its nature as to have become prohibited ?Again: supposing the slave trade not yet to have become generally illegal; still it has become so to the subjects of those countries who have issued declarations against the trade. To such the argumentum ad hominem may be fairly applied, as Sir W. Scott says in the Louis. Spain and Portugal are among the countries who have issued the most formal declarations against this trade, although they have not yet taken the most effectual measures to suppress it. By the treaties between these powers and Great Britain, they have stipulated the entire abolition, of the slave trade north of the equator. But’ their authentic declarations pronounce it to be unlawful and inhuman, wherever carried on ; and the permission to continue it south of the line can only
p. 80affect them, and their subjects, and the powers with whom they have made such treaties. Their subjects cannot avail themselves of the permission, so far as other nations are concerned. Those nations have a right to look to the declarations as authentic evidence of the understanding of the Spanish and Portuguese governments, as to the law of nations.But suppose they can avail themselves of the permission to trade in slaves within the limits prescribed by the treaties. The onus probandi is thrown upon them to bring themselves within those limits. This they have failed to do by satisfactory evidence.And even if the law was in their favour, arid they had shown the trade in which they were engaged to be within the limits permitted by the treaties, such a general claim could not be given in by the Consuls of Spain arid Portugal for their fellow subjects. The Court has a right to the oath of the individual, owners, as to their proprietary interest, and to- explain the other circumstances of the case. As to the Portuguese claim, the owners are still unknown, arid it is impossible that restitution can be made to the Consul, or even, to his government, merely upon evidence that the Africans were taken from a vessel sailing. under the Portuguese flag and papers, without any specific proof of the individual proprietary interest.Lastly: if some of these Africans were the property, of the claimants, some were not; and, failing to identify their own, they are not entitled
p. 81to restitution of any as slaves, since, among them may be included some who are entitled to their freedom. The proof, by lot, which was substituted by the Court below for ordinary legal proof, is not satisfactory, especially where a claim to freedom conflicts with a claim to property.Mr. Berrien, for the respondents,
stated, that a reference to the transcript would show, that of all the parties to this cause in the Court below, the United States, and the Spanish and Portuguese Vice-Consuls, are alone before this Court; and that the United States, acquiescing in all the residue of the decree, have appealed from only so much as directs restitution to the Spanish and Portuguese Vice-Consuls.The allowance of these claims is resisted on various grounds.One prominent proposition pervades the whole of the opposite argument. Unless we can. meet and resist it, we must submit. to be its victims. It asserts, that the United States have acquired the possession of these negroes lawfully, without wrong; that with the possession so acquired, they have incurred the obligation to protect them ; that all presumptions aré in favorem libertatis ; and, whatever the laws of other countries' may tolerate or ordain, having ourselves declared the slave trade to be contrary to the principles'of humanity and justice, we are bound, prima facie, to hold that there can be no property in a human being.
p. 83Africa, or elsewhere, and to instruct them to bring in all vessels found contravening acts. But the laws of the United States can operate only on American vessels, on American citizens on board of foreign vessels, or on such vessels within the limits and jurisdiction of the United States. Besides, it is not pretended, that the revenue cutter Dallas, had been selected as a cruising vessel under these acts, or that Captain Jackson had received any instructions from the President of the United States. Neither can the seizor derive any aid from the acts to preserve the neutral relations of . the United States; for although the Courts of the United States will restore property taken in violation of these acts, when it is found within their jurisdiction, yet they do not authorize the cruisers of the United States to rove the ocean in search of objects on which that jurisdiction may be exercised.So far, then, as it depends on the official character of the seizor, the act was lawless.The thing seized was a Spanish vessel, in the possession of persons, some of whom were American citizens, who had. captured it jure belli, únder the flag of Artegas, or of Venezuela, and in a vessel which had been fitted out, or whose armament had been increased, in the United States.The right to seize for a violation of the acts to preserve the neutral relations of the United States, has been already spoken of; but the adverse argument considers these captors as pirates, and asserts the light of every individual to war
p. 84against them as enemies of the human race. The answer is,(1.) The seizure by Captain Jackson was not made on that ground. The libel alleges the seizure to have been made for a violation of the act of 1818, prohibiting the slave trade.(2.) The Courts of the United States have declined to decide, that such an act would amount to piracy.(3.) To put himself in a situation to make this seizure, Captain Jackson abandoned the duty enjoined upon him by his commission, and the laws of the United States, by leaving the limits intrusted to his vigilance. If he had lost his vessel, could he have justified himself before a Court Martial ?(4.) But if these men were pirates, and lawfully brought in, then the Spanish property was, from the moment of its introduction, under the protection of the ninth article of the treaty of San Lorenzo el Real.Neither,have the United States acquired any rights to enforce against these foreigners their own speculative notions on this subject, in consequence of their being actors. All parties are actors in, a Court of admiralty, and these parties only became so after their property had been taken into the custody of the Marshal, and at the suit of the United States. But they were entitled, under the treaty, to have restitution of their property, without being put to other proof, than that it was foúnd in their possession.2. If the possession had been lawfully acqui
p. 86The notion of the pledge is equally visionary, I find it difficult to form a conception of a pledge, which the party making it can at any time capriciously recall; and yet no one doubts that an act of the American Congress can, at at any moment, throw open the slave trade.These considerations apart, would k become the United States to assume to themselves the character of censors of the morals of the world on this subject? — to realize the lofty conception of the adverse counsel, and consider themselves as the ministers of heaven, called to wipe out from among the nations the stain of this iniquity ? Might not the foreign claimant thus rebuke them, in the strong language of truth ? For more than thirty years you were slave traders ; you are Still extensively slave, owners. If the slave trade be robbery, you were robbers and are yet clinging to your plunder. For more than twenty years this traffic was protected by your constitution, exempted from the whole force of your legislative powér; its fruits yet lay at the foundation of that compact. The . principle by which you continue to enjoy them, is protected by that constitution, forms a básis for your representatives, is infused into your laws, and mingles itself with all the sources of authority. Relieve yourselves from these, absurdities, before you assume the right of sitting in judgment on the morality of other nations. But this you cannot do. Paradoxical as it may appear, they constitute the very bond of your union. The shield of your constitution protects them from your touch.
p. 882. It being, ascertained that these negroes were property, they were liable to distribution as other property; and, notwithstanding the assertion to the contrary, the lot is often and legally resorted to, to separate undivided interests.3. As between the Spanish and Portuguese claimants, no question on this point can arise here, because they have not appealed.4. The United States cannot question this part of the decree, because they have not only not appealed from it, but have actually proceeded to enforce it ex parte, and have received restitution by lot of the negroes taken from the American vessel.The United States have, then, derived no right to refuse restitution, from the manner in which they have acquired possession.They are not entitled, by law, or the stipulations- of treaty, to apply their speculative notions of morality to the subjects of Spain and Portugal.They have ilL-grounded pretensions in reference to this ill-fated subject, to set themselves up as the moral censors of the civilized world. Here is evidence of a proprietary interest to satisfy the mind beyond a reasonable doubt, and it is wholly uncontradicted; and the passport of the. King of. Spain, and the interposition of the government of Portugal, show, if there be any necessity for it, the legality of the traffic, as to their respective subjects.On what ground, then, is restitution refused ?
p. 89It is said, the slave trade is unlawful, contrary to the principles of justice and humanity; that no right can be derived from so nefarious a traffic.Our inquiry is, by what law, which this Court is competent to enforce, is it inhibited ?1. Is it contrary to the law of nations ?2. Is it contrary to the laws of the sovereigns of the claimants ; and can this Court refuse restitution for that cause ?3. Is it contrary to the laws of the United States; and can those laws be enforced against these claimants ?1. What is the slave trade, considered as a subject on which the law of nations can operate. Slavery exists, and has from, all time existed, in Africa, and in many other countries. Where it exists, there will, of course, be an interior traffic in slaves, which the law of nations cannot touch. It is only on the transportation of negroes between two countries mutually tolerating slavery, that this operation is contended for. But this transportation is but an incident to the original sin of slavery. If humanity nerves the arm of the law, why is its force spent on the incident ? Why is. it powerless in relation to the principal, wrong ?If the traffic in slaves be considered as increasing the number of victims, by affording a. market for them, what is it then but an aggression by the subjects of one nation on the rights of another? If the nation forbids it, the offender is punished by the municipal law; if the nation
p. 90permits it, she herself becomes the aggressor. In either case, how does it concern other nations?The law of nations maybe defined to be a collection of roles deduced from natural reason, as that is. interpreted by those, who adopt them, and resting in usage, or established by compact, for regulating the intercourse of nations with each other.Rights and obligations are interior between sovereign and people,, and are regulated by the municipal law; or exterior, between nations considered as moral persons ; and these are regulated by the law of nations.Now the slave trade is not contrary to the natural law of nations, because, until recently, it was universally tolerated and encouraged. It is not contrary to the positive law of nations; because there is no general compact inhibiting it; and nothing is more certain, than that the usage, or compact, even of a majority of nations, cannot produce rights or obligations among others. To what other evidences, of the law of nations can we resort except those of usage and compact; the former interpreting the rules of natural reason, the latter stipulating those of positive institution. ?From this general view it would seem, that the slave trade is untouched by the law of nations. Let us render our inquiries more particular.Is this traffic considered to be contrary to the law of nations, by the statesmen and jurists of Europe and America?
p. 96by our opponents, while they revolt from the conclusion to which those principles conducted him. What we ask in this case, is precisely what was done in the case of La Jeune Eugenie, that the property should be restored to the consular agents of Spain and Portugal; and yet that very case is relied upon as an authority against this concession.The proposition, that the slave trade is inconsistent with the law of nations, is maintained on the following, among other grounds, in the case of La Jeune Eugenie:1. Its accumulated wrongs, and consequent inconsistency with that code.“ It is of this traffic, in the aggregate of its accumulated wrongs, that I would ask,” (says the learned Judge,) “ if it can be consistent with the law of nations?”To us, the inquiry seems to be vain and nugatory; The gravamen of the question is equally applicable to any other act of atrocity, and to any other code of laws. Murder, robbery, &c. &c. are attended with accumulated wrong. They, too, are inconsistent with the principles of justice and humanity, which lay at the foundation, of international law. Do the laws which forbid these crimes, therefore, form part of that universal láw? are they governed by it, or. punished by it?2. Again it is said, the law of nations is deduced from the general principles of right and justice; that whatever can be deduced from these principles as applicable to nations, and to the
p. 97nature of .moral obligation, exists theoretically in the law of nations, and may be enforced.It seems to us, that nothing is gained by the first of these propositions. The principles of right and justice, it is most certain, are capable of being applied equally, to the law Of nations, and to the municipal law; to nations and to individuals. But the question here is, whether, in their application to the concerns of individuals, by the act of one or more nations, or of any number less than-the whole, they do not rather-constitute a part of the municipal law of the nations applying them, than Of the general law of nations ?Th,e second proposition appears to us to bé too broad. Without doubt, it is the right and duty. of every nation to prohibit crimes, and among others this, crime. It is entirely consistent with moral obligation, that they should, do so. What then? Is the act,of a single nation, fulfilling this duty, less simply municipal, because the morality of the act which it performs is of universal obligation, equally affecting all nations ?3. It is urged, moreover, that the slave trade is in violation of some of the first principles which ought to govern nations. The assertion is unquestionable. But may not the same thing be said of many acts, which are confessed y the objects of municipal regulations alone ? Smuggling often begins in perjury. It is prosecuted in violation of the duty of the citizen. Its tendency is to corrupt the morals of the community. It sometimes. eventuates in murder. Is an
p. 102nounced as contrary to humanity and justice, and is. prohibited to their subjects. No jurist has been cited, from the earliest to the most recent, who has pronounced the trade contrary to the positive law of nations. So that the Court is left, entirety to the light of reason in determining the question whether it be contrary to the law of nature, as property applied to the conduct of nations, and states.If this prohibition be apart of the law of nations, it must be of the modem law of European nations. Are the United States parties to that law? And if they are, can they enforce its penal sanctions against other nations not parties to it ?Many principles have been at various periods asserted by confederacies of nations, which have ultimately failed to obtain a place m the general code of nations. The principles of the armed neutrality of 1780, were maintained by nearly all the powers of Europe against Great Britain alone; and yet her doctrines have not ceased to regulate the conduct of nations engaged in. war. It is, at least, doubtful which is the true law of nations. The supposed inconsistency of the slave trade With the law of nature, will not alone condemn it in the view of a Court of justice, so as to authorize all nations .o treat it as a crime, or to enforce its prohibition by the confiscation of the property of those engaged in it. It becomes aft reflecting then to think seriously, and speak cautiously, on the subject of the illegality of a trade, which was once universally participated in by the civilized nations of Europe and America.
p. 105dinary penal sanctions of revenue and trade laws ; but they have made it a criminal offence, and punished it as piracy. No treaty has yet been ratified with any foreign power, by which they engage to co-operate with the United States in the prohibition ; and yet the Court is called on to anticipate, by judicial legislation, the exercise of the treaty making power, and to refuse restitution to the subjects of Spainand Portugal, of that which they claim as their property, under the laws of their own country. This property .has been brought into our jurisdiction in consequence of its having been taken from the possession of the original owners, by armaments fitted out in our ports in violation of our neutrality. The duty of restitution is therefore plain, under the laws and treaties of the Union, and the uniform decisions of this Court.The learned counsel also entered into a minute and elaborate examination of the proofs of proprietary interest, and reiterated many of the grounds of argument insisted on by his associate. But as they have been already fully stated in the report of Mr. Berrien’s argument, it .has not been thought necessary to repeat them.The Attorney General, for the appellants,
in reply, answered the objection, that the only question presented by the pleadings, on the part of the United States, was, whether this was a trade in breach of the Slave Trade Acts ? He insisted, that as the libels filed by the Spanish and Portuguese Consuls, demanded restitution upon the
p. 106ground of the illegal armament in our ports, and claim, or defensive allegation, given in by the United. States, resisted that demand upon two specific grounds: 1st. That the Africans were taken on board with intent to import the same, &c.; and. 2dly.0 That the vessel was found hovering on the coast with the. same persons-on board;, if thé. testimony disclosed, a case on. which it would be proper for the United States to interpose, which was not reached by the. pleadings, thé consequence would be, not that the decrees, should be. affirmed, but that the cause would be remanded, with directions to amend. And, sup posing the United States to have made no case by their pleadings, the question was, have the libellants made a case which justifies the-decree ? The Africans are parties to the cause, at least such of them as are free ; and even if the other parties, had colluded to make a case for restitution, they would, still have been entitled to the protection of the Court.As to the seizure by the revenue cutter, he insisted that it was justifiable under the Slave Trade Act of the 2d of Mareh, 1807, s. 7. which forfeits “ any ship or vessel found hovering an the coast of the United States, having on board any negro, mulatto, or person of colour, for the purpose of selling them as slaves, or with intent to land the same in any port or place within the jurisdiction of the United States.” This act made, no distinction as to the national character of the ship, whether" it belonged to citizens or foreigners. So, also,. the. act of the 15th of May, 1820, c. 113., s. 5. makes the slave trade
p. 107piracy, where it is carried on by citizens of the United States. So that, whether we -egard the predicament of the vessel, or of the persons engaged in the transaction, the seizure was fully warranted by the laws applicable to the case. Captain Jackson performed only an act of duty in capturing and bringing in the vessel for adjudication.The question, then, recurs,- what was the condition of the Africans thus brought in, as defined by our laws ; which must be the rule to guide the determination of the Court. They are placed under the protection of those laws, and are, prima facie, free. On whom, then, is the onus prébándi thrown ? Being here rightfully, they aré under the protection of our laws and Courts of justice. No person can claim a right to take them from the custody of the Court, and carry them away into slavery, but those who can prove them to be slaves; who can prove, it, by such evidence as ought alone to be held sufficient in a question of freedom or slavery. This view of the cáse settles the question of the burthen of proof. He who would seek to disturb the apparently rightful condition of things, assumes the burthen of proving his own right. This is the ordinary doctrine of the Court of Admiralty, if Ute seizure has been rightful, and the. casé is; prima facie, a case for- condemnation. The ants probandi is thrown upon : the claimant to prove Ms property, and his right to restitution. But, iñ the present case, the rule is peculiarly applicable, and the clearness and fulness of the
p. 108proof ought to be in proportion to the importance of the matter in controversy. The cáse is one of. human liberty. The Africans stand before the Court as if brought up before it upon, habeas corpus. Suppose them here, on such a process, asserting their freedom, and claiming your protection; what kind of proof would you exact from those who claim to hold them in slavery ? Most certainly you would not demand inferior evidence to that which you require in a cáse of life or death. The witnesses must present themselves fairly before you. Their statements must be clear and consistent, and such-as to command the confidence, of the Court. They must be. sustained by the documentary evidence ; and, where any doubt is left, the decision should be in favorem libertatis.The claimants wish the Court to consider this as a question exclusively between Spain on one side, and the United States on the other, in which these persons are to be considered as “ effects,” and “merchandise,” taken by pirates, and.as such liable to restitution under the stipulations of the treaty of 1795. But is the Court at-liberty so to consider them, under the laws of our own country? Some of them are confessedly free, because the decree has established the fact. Which of them are slaves, it is impossible to determine by any rule of evidence known to our practice. The claimants must prove their property; and this involves the necessity of proving that these persons ,are property. They must prove that they are property, and that they are
p. 109their property. Possession may be a sufficient indicium of property, in those places where the local law makes a particular subject property. The local laws of some of the States, generally make persons of colour, prima facie, slaves, and throw the burthen of proof upon them to show the contrary. But even in those States, the possession of a newly imported African would not be evidence of property. The question, therefore, recurs, is it enough to justify the Court in delivering up these persons to the parties for whom they are claimed, to. show a possession on the-'high seas P Is the mere possession of such persons a sufficient, evidence of their slavery to justify, it in restoring them as claimed ? The question is not whether the cruisers of the United States have a right to seize a Spanish slave ship upon the high seas, bring her in for adjudication, and throw the burthen of proof of proprietary interest upon the claimants. Any such right of interference with foreign states, their subjects, or people, is disclaimed. But these people are here, in the custody of the Court, without any invasion of the sovereignty of reign nations on our part; for the piratical vessel, which took them out of other vessels sailing under Spanish and Portuguese colours, was acting under the authority, or. upon the responsibility of the United States. They are brought here by a seizure authorized by our own laws, and perfectly consistent with the sovereignty and independence of Spain and Portugal. The laws, under which they were seized and brought
p. 110in, declare them to be entitled to their freedom. Can the Court surrender them as slaves upon no other proof than mere naked possession? Is the possession of Africans, on the coast of Africa, sufficient evidence of title, per se, without connecting that possession with any law, international or municipal, to justify the Court .m taking an active part in consigning to slavery these persons, thus placed under its protection ?It is unnecessary for the United States to show, that the possession was prima facie, wrongful. The opposite parties, who call upon the active aid of the Court to maintain that possession, must prove that it was rightful.The real question, then, is, whether the mere possession, under such circumstances, is sufficient evidence, of title, not as against the United States, but as against these Africans? The Court will not shut their eyes to what is passing in the world. Sr.eh a possession may be evidence of title in some of the States of this Union, and in the European colonies. It might have been so formerly on the coast of Africa. But it is not so now, even under the municipal laws of Spain and Portugal. Both of these powers have prohibited the slave trade on the coast of Africa to the north of the line, since 1815. It was prohibited long before by the United States and Great Britain, on every part of the coast, and of the world. It has been prohibited by France, Holland, and all the principal maritime states of Europe. Under these circumstances, it is impossible' for the Court to v, that possession or the coast of
p. 111Africa is so habitually found in connexion with right, under the municipal laws of the country to which the vessel belongs, as to constitute prima facie evidence of property. The presumption ought rather to be reversed. The Natives of Africa, however imperfect may be their civilization, compose an independent nation. By the general law of nations, they are as free as the Spaniards, or the Portuguese. Hence, it may be seen,) that the mere possession of an African, claiming him as a slave, by a Spanish ship, oil the coast of Africa, would no more prove the African a slave, than the possession of a Spaniard, by an African ship on the boast of Spain, would prove the Spaniard a slave. The actual possessor must, therefore, show some other right than mere possession. The Spaniard alleges, that it has been the practice of the civilized and Christian nations of Europe, to make slaves of the Africans for three centuries; and hence, that, by the law of nations, he has a right to make slaves of them. The African opens the volume of the law of nations, and shows, that the foundations of that code are laid in justice and humanity, and that no legitimate right can grow out a violation of these principles. If he is answered, that the trade had its origin in humane motives, he may well upbraid us for such a vindication. Nor does the existence of slavery in the United States form any excuse or palliation, for perpetuating, and extending the guilt and misery of the slave trade. Slavery was introduced among us, during our colonial state, against. the solemn remon
p. 114How far the slave trade is contrary to the law of nature, and nations.
prevailing at the time and place. By the law applicable to this case, these persons are free; they annot, therefore, be considered as merchandise or effects within the treaty.delivered the opinion of the Court, and, after stating the case, proceeded as follows:
In prosecuting this appeal, the United States assert no property in themselves. They appear in the character of guardians, or next friends, of these Africans, who are brought, without any act of their own, into the bosom of our country, insist on their right to freedom, and submit their claim to the laws of the land, and to the tribunals of the nation.
The Consuls of Spain and Portugal, respectively, demand these Africans as slaves, who have, in the regular course of legitimate commerce, been acquired as property by the subjects of their respective sovereigns, and claim their restitution under the laws of the United States.
In examining claims of this momentous importance; claims m which the sacred rights of liberty and of property come in conflict with each other; which have drawn from the Bar a degree of talent and of eloquence, worthy of the questions that have been discussed; this Court must not yield to. feelings which might seduce it from the path of duty, and must obey the mandate of the law.
That the course of opinion on the slave trade, should be unsettled, ought to excite no surprise The Christian and civilized nations of the world.
p. 115with whom we have most intercourse, have all been engaged in it. However abhorrent traffic may be to a mind whose original feelings are not blunted by familiarity with the practice, it has been sanctioned in modern limes by the laws of all nations who possess distant colonies, each of whom has engaged in it as a common commercial business which no other could rightfully. interrupt. It has claimed all the sanction which could be derived from long usage, and general acquiescence. That trade could not be considered as. contrary to the law of nations which was authorized and protected by the laws of all commercial nations; the right to carry on which was claimed by each, and allowed by each.
The course of unexamined opinion, which was founded on this inveterate usage, received its first check in America; and, as soon as these States acquired the right of self-government, the traffic was forbidden by most of them. In the beginning of this century, several humáne and enlightened individuals of Great Britain devoted themselves to the cause of the Africans; and* by frequent appeals to the nation, in which the enormity of this commerce was unveiled, and exposed to ¿he public eye, the general sentiment was at length roused against it, and the feelings of justice and humanity, regaining their long lost ascendency, prevailed so far in the British parliament as to obtain an act for its abolition. The utmost efforts of the British government, as well as of that of the United States, have since been as
p. 116siduously employed in its suppression. It has been denounced by both in terms of great severity, and those concerned in it are subjected to the heaviest penalties which law can inflict. In addition to these measured operating on their own people, they have used all their influence to bring other nations into the same system, and to interdict this trade by the consent of all.
Public sentiment has. in both countries, kept pace with the measures of government; and the opinion is extensively, if not universally entertained, that this unnatural traffic Ought to be suppressed. While its illegality is asserted by some governments, but nót admitted by all; while the detestation in which it is held is growing daily, and even those nations who tolerate it. in fact, almost disavow their own conduct, and rather. connive at, than legalize, the acts of their subjects; it is not wonderful that public feeling should march somewhat in advance of strict law, and that opposite opinions should be entertained oh thé precise cases in which our own laws may control and limit the practice of others. Indeed, we ought not to be surprised, if, oil this, novel series of cases, even Courts of justice should, in some instances, have carried the principle of suppression farther than a more deliberate consideration of the subject would justify.
The Amedie, (1 Acton's Rep. 240.) which was an American vessel employed in the African trade, was captured by á British cruiser, and condemned in the Vice Admiralty Court of Tortola.
p. 117An appeal was prayed; and Sir William Grant, in delivering the opinion of the Court, said, that the trade being then declared unjust and unlawful by Great Britain, “ a claimant could have no right, upon principles of universal law, to claim restitution in a prize Court, of human beings carried as his slaves. He must shoW some, right that has been violated by the capture, some property of which he has been dispossessed, and to which he ought to be restored. In this case, the laws of the claimant’s country allow of no right of property such as he claims. There can, therefore, be no right of restitution. The consequence is, that the judgment must be affirmed,”
The Fortuna (1 Dodson's Rep. 81.) was condemned on the authority of the Amedie, and the same principle was again affirmed.
The Diana (1 Dodson's Rep. 95.) was a Swedish vessel, captured with a cargo of- slaves, by a British cruiser, and condemned in the Court of Vice Admiralty at Sierra Leone. This sentence was reversed on appeal, and Sir William Scott, in pronouncing the. sentence, of reversal, said, “ the condemnation also took place on a principle which this Court cannot in any manner recognise, inasmuch as the sentence affirms, that the slave trade from motives of humanity, hath been abolished by most civilized nations, and is not at the present time, legally authorized by any.' This appears 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.
p. 118The 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 eountiyto which the vessel belongs. 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.
In the very Tull 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 very country, in its boasts and vessels, indiscriminately." It was not piracy.
p. 119He 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 general 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 maintained with great strength of reasoning, that it cannot he 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 i& 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 pro
p. 120position, that, in the British Courts 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 law, forbidden that trade. Consequently, for 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 labour, 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
p. 121neral usage. That which has received the assent of all, must be the law of all.
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 favour 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
p. 122not say, that a 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 universal assent, every nation had an equal right to engage. How is this right to be lost ? Each may renounce it for its own people; but can this renunciation affect others?.
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 devested only by consent ; and this trade, in which all have, participated, must remain lawful 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.
If it be neither repugnant to the law of nations, nor piracy, it is almost superfluous to say in this Court, that tho right of bringing in for adjudication in time of peace, even where the vessel belongs to a, nation which has prohibited the trade,
p. 123cannot exist. The Courts of no..country execute the penal, laws of another; and the course of the American government on the subject of visitation and search, would decide any case in which that right had been exercised by an American cruiser, on the vessel of a foreign nation, not violating our municipal laws, against the captors.
The Spanish claim.
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 belonging to Spanish subjects, was captured while receiving a, cargo of Africans on the coast of Africa, by the Arraganta, a privateer, which was manned in Baltimore, and is said to have been then under the flag of the Oriental republic. Some other vessels, said to be Portuguese, engaged in the same traffic, were previously plundered, and the slaves taken from them, as well as from another vessel then in the same port, were put on board the Antelope,. of which vessel the Arraganta took possession, landed her crew, and put on board a prize master and prize crew. Both vessels proceeded to the coast of Brazil; where the Arraganta was wrecked, and her captain and crew either lost or made prisoners.
The Antelope, whose name was changed to the General Ramirez, after an ineffectual attempt
p. 124to sell the Africans on board at Surinam, arrived 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 smuggle 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 United States, with a crew who spoke English, brought her in for adjudication.
On whom the onus probandi is thrown in this case.
She was libelled 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.
In the argument, the question , on whom the onus probandi is imposed, has. been considered as of great importance, and the testimony adduced by the parties has been critically examined: 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 farther 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 application to this, case. A distinction is taken between
p. 125men, who are generally free, and
goods, which are always property. Although, with respect to the last, possession may constitute the only proof of property which is demandable, something more is necessary where men are claimed. Some proof should be exhibited that the possession was legally. acquired. A distinction has been also drawn between Africans unlawfully taken from the subjects of a foreign power by persons acting under the authority of the United States, and Africans 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 Jaws 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.
Had the Arraganta been a regularly commissioned cruiser, which had committed no infraction of the neutrality of the United States, her capture of the Antelope must have been, considered as lawful, and no question could have arisen respecting the rights of the original claimants. The question of prize or no prize belongs solely to the Courts of the captor. But, having violated the neutrality of the United States, and having entered our ports, not voluntarily, but under coercion, some difficulty exists respecting the extent of the obligation to restore, on the mere
p. 126proof of former possession, which is imposed on this government.
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.
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 business 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 Circuit Court as di
p. 127rects 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 number 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
p. 128were 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 inferenfce tó be drawn from the statement of the libel, and the improbability that so large a number of Africans as are claimed could have Keen procured, under the circumstances in which the Antelope was placed, between 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 favour of the smaller number. But supposing perfect equality in this, respéct, the decision ought, we think, to be against the claimant.
Whatever doubts may attend the question whether the Spanish claimants are entitled to 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 exists. The onus probandi, as to the number of Africans which were on board when the vessel was captured, unquestionably lies on the Spanish libellants. Their proof is not satisfactory beyond ninety-three. The individuals who compose this number must be designated to the satisfaction of the Circuit Court.
p. 129The Portuguese claim.We proceed next to consider the libel of the Vice-Consul of Portugal. It clhims one hundred and thirty slaves, or more, “ all of whom, as the libellant 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 hot • at this time individually and certainly known to the libellant; hé hopes and expects soon to discover thera.”
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 vessels 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
p. 130that 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 notoriety, 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 history. 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 foreign relations of Portugal are supposed to be intrusted, suggesting the means of transporting to Portugal those slaves which may be in the possession of the Vice-Consul, as the property of his fellow subjects. Allow to this document all the effect which can be claimed,for it, and it can do no more than supply the want of an express power
p. 131from the owners .of the slaves to receive them. It cannot be considered as ascertaining the owners, or as proving their property.
The difficulty, then, is not diminished by this paper. These Africans still remain unclaimed by the owner, or by any person professing 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, entitles these men to" freedom. Nothing whatever can interpose to arrest the course of the law, but the title of the real proprietor. No such title appears, and every presumption is against its existence, .
We think, then, that all the Africans, now in possession. of the Marshal for the District of Georgia, and binder the control of the Circuit Court of the United States for that District, which were brought in with the Antelope, other
p. 132wise 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 disposed 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.
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 ninety-three (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 Captain of the Arraganta. After making the apportionment-according to this ratio, and deducting from the number the rateable loss which must fall on the slaves to which the Spanish claimants were originally entitled, the
p. 133residue of the said ninety-three are to be delivered to the Spanish claimant, on the terms in the said decree mentioned ; and all the remaining Africans are to be delivered to the United States, to be disposed of according to law; and the said. decree of the said Circuit Court is, in.all things not contrary to this decree, affirmed.