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1825. strances of our legislative assemblies. Free
America did not introduce it. She led the way The Antelope.
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.
The Anteloper Their possession, then, derivés 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
1825. prevailing at the time and place. By the law ap
plicable to this case, these persons are free; they The Antelope. P"
cannot, therefore, be considered as merchandise or effects within the treaty.
March 18th. Mr. Chief Justice MARSHALL 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, den and 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. How far the In examining claims of this momentous imporslave trade is contrary to the tance; claims in which the sacred rights of liberty and nations. '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,
law of nature,
with whom we have most intercourse, have all 1825. been engaged in it. However abhorrent this, traffic may be to a mind whose original feelings are not blunted by familiarity with the practice, it has been sanctioned in modern times 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 humane 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 the 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
1825. siduously employed in its suppression. It has W been denounced by both in terms of great seveThe Antelope.
'rity, and those concerned in it are subjected to the heaviest penalties which law can inflict. In addition to these measures 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 not 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 on the precise cases in which our own laws may control and limit the practice of others. Indeed, we ought not to be surprised, if, on 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 a British cruiser, and condemned in the Vice Admiralty Court of Tortola.