The Antelope. 1825. would lie, "if the sale was in Virginia." Other cases turn upon questions as to the form of action, but they all concur in establishing the right to this species of property." In 1689, all the Judges of England, with the eminent men who then filled the offices of Attorney and Solicitor General, concurred in opinion, that negroes were "merchandise," within the general terms of the Navigation Act." The famous case of Somerset, whilst it determined that negroes could not be held as slaves in England, recognised the existence of slavery in the colonies, as does the whole legal policy, both of that country and of France.“ The slave trade was long the subject of negotiations, treaties, and wars, between different European States, all of which consider it as a lawful commerce. The very declarations in the recent European Congresses, and the negotiations between Great Britain and the United States, all show that the slave trade has not yet been prohibited by any thing like the unanimous consent of nations, so as to make it absolutely unlawful in the view of a Court of the law of nations. The United States have done all in their power, consistently with their constitution, to abolish the trade. But they have sought to abolish it by municipal means only. They have prohibited it to their own citizens, not only by the or a 2 Salk. 666. 1 Lord Raym. 146. 5 Mod. Rep. 185. Carth. 596. b2 Chalmers' Opinion of Eminent Lawyers, 263. c Cobbett's State Trials, vol. 20. p. 1. d Valin. Ord. de la Mar. liv. 2. tit. 1. du Capitaine, art. 16. dinary penal sanctions of revenue and trade laws; 1825. but they have made it a criminal offence, and pu- The Antelope. nished 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 The Antelope. 1825. ground of the illegal armament in our ports, and the 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. That the vessel was found hovering on the coast with the same persons on board; if the testimony disclosed a case on which it would be proper for the United States to interpose, which was not reached by the pleadings, the consequence would be, not that the decrees should be affirmed, but that the cause would be remanded, with directions to amend. And, supposing 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 March, 1807, s. 7. which forfeits "any ship or vessel found hovering on 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. piracy, where it is carried on by citizens of the United States. So that, whether we regard 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 adju- · dication. 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 probandi thrown? Being here rightfully, they are 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 case 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 the seizure has been rightful, and the case is, prima facie, a case for condemnation. The onus probandi is thrown upon the claimant to prove his property, and his right to restitution. But, in the present case, the rule is peculiarly applicable, and the clearness and fulness of the 1825. The Antelope. The Antelope. 1825. proof ought to be in proportion to the importance of the matter in controversy. The case is one of human liberty. The Africans stand before the Court as if brought up before it upon a 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 case 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 |