The Antelope. their property. Possession may be a sufficient 1825. 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? 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 foreign nations on our part; for the piratical vessel, which took them out of other vessels sailing under Spanish and Portuguese colours, was not 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 The Antelope. 1825. in, 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 in 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. Such 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 say, that possession on the coast of Africa is so habitually found in connexion with 1825. right, under the municipal laws of the country to The Antelope. 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, on the coast of Africa, would no more prove the African a slave, than the possession of a Spaniard, by an African ship on the coast 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 of 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 1825. The Antelope. Free strances of our legislative assemblies. America did not introduce it. She led the way in measures for prohibiting the slave trade. The revolution which made us an independent nation, found slavery existing among us. It is a calamity entailed upon us, by the commercial policy of the parent country. There is no nation which has a right to reproach us with the supposed inconsistency of our endeavouring to extirpate the slave trade as carried on between Africa and America, whilst at the same time we are compelled to tolerate the existence of domestic slavery under our own municipal laws. It may well be asked, whether Africa is without the pale of the law of nations. Are not Africans in their own country, under the protection of that law? If it be answered, that the condition of slavery has existed from time immemorial, growing out of the exercise of the rights of war, as understood and practised in that barbarous country, it may be replied, that those very wars have been stimulated by the arts and avarice of the slave traders. This fact is shown by the most conclusive evidence, in the examinations before the House of Commons in 1791. It appears also by the more recent reports of the American and British naval officers, and the agents of the London African Institution, and American Colonization Society. Unless, therefore, the slave traders can derive a right, founded a Hargrave's Argument, in Somersett's case, 11 State Trials, 346. upon wrong practised at their instigation, this 1825. argument cannot avail them. Their possession, then, derives no support from the law of nations. Supposing that by the municipal law of Spain these persons are slaves, whilst by your law they are free; being brought into this country without any trespass on the sovereign rights of Spain, is the Court bound to restore them from comity? If the general law of nations binds us to do this, it also binds us to deliver up persons charged with crimes, or even with political offences. But this is a principle which has been repudiated by all nations." The stipulation in the Spanish treaty, by which we are bound to restore the ships and effects, or merchandise of Spanish subjects, when captured within our territorial jurisdiction, or by pirates on the high seas, does not apply. These Africans are not “effects," or "merchandise." To say that they are so, is to beg the whole question in controversy. The opinions of the twelve Judges of England, and of the law officers of the Crown, in 1689, which have been cited to show that negroes were considered as merchandise, within the terms of the Navigation Act, only prove that they were so considered at that time with reference to the British colonies, into which their importation was then permitted. Even at that period, negroes in England were not considered as merchandise, or the objects of traffic, or liable to be held in servitude. Every thing must depend upon the law The Anteloper |