U. S. Bank V. Halstead. 1825. which adopts such law. An execution is the fruit and end of the suit, and is very aptly called the life of the law. The suit does not terminate with the judgment; and all proceedings on the execution, are proceedings in the suit, and which are expressly, by the act of Congress, put under the regulation and control of the Court out of which it issues. It is a power incident to every Court from which process issues, when delivered to the proper officer, to enforce upon such officer a compliance with his duty, and a due execution of the process, according to its command. But we are not left to rest upon any implied power of the Court, for such authority over the officer. By the 7th section of the act of the 2d of March, 1793, (3 L. U. S. 367.) it is declared, that "it shall be lawful for the several Courts of the United States, from time to time, as occasion may require, to make rules and orders for their respective Courts, directing the returning of writs and processes, &c. and to regulate the practice of the said Courts respectively, in such manner as shall be fit and necessary for the advancement of justice, and especially to the end to prevent delays in proceedings." To permit the Marshal, in this case, to be governed and controlled by the State law, is not only delaying, but may be entirely defeating the effect and operation of the execution, and would be inconsistent with the advancement of justice. Upon the whole, therefore, the opinion of this Court is, that the Circuit Court had authority to alter the form of the process of execution, so as U. S. Bank V. to extend to real as well as personal property, 1825. when, by the laws of Kentucky, lands were made subject to the like process from the State Courts; and that the act of the General Assembly of Halstead. Kentucky does not operate upon, and bind, and direct the mode in which the venditioni exponas should be enforced by the Marshal, so as to forbid a sale of the land levied upon, unless it commanded three fourths of its value, according to the provisions of the said act; and that, of course, the return of the Marshal is insufficient, and ought to be quashed. This renders it unnecessary to inquire into the constitutionality of the law of Kentucky. CERTIFICATE. This cause came on to be heard on the transcript, &c. and the points on which the Judges of the Circuit Court of the United States for the seventh Circuit and District of Kentucky, were divided in opinion, and which were, in pursuance of the act of Congress in that case made and provided, adjourned to this Court, and was argued by counsel. On consideration whereof, this Court is of opinion, that the act of the General Assembly of Kentucky, referred to in the said questions, cannot operate upon, bind, and direct the mode in which the said venditioni exponas should be enforced by the Marshal, and forbid a sale of the land levied upon, unless it commanded three fourths of its value when estimated according to the provisions of the said act; and that this opinion renders it unnecessary to decide whether the said act is, or 1825. is not, repugnant to the constitution of the UniThe Antelope, ted States. All which is directed to be certified to the Circuit Court of the United States for the seventh circuit and District of Kentucky." [PRIZE. INSTANCE COURT. SLAVE TRADE.] The ANTELOPE. The Vice-Consuls of Spain and Portugal, Libellants. 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 civili zed 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. a In the case of the Bank of the United States v. January, also certified from the Circuit Court of Kentucky, the process was a capias, to which the acts of 1789, and 1792, extend in express terms. This Court, therefore, determined, that Congress must be understood to have adopted that process as one that was to issue permanently from the Courts of the United States, whenever it was in use, at the epoch contemplated by those acts, as a State process. A certificate was directed accordingly. It seems, that in case of such a seizure, possession of Africans is not 1825. a sufficient evidence of property, and that the onus probandi is thrown upon the claimant, to show that the possession was lawfully The Antelope. 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 sus- And whether, in such a case, restitution ought to be decreed at all, APPEAL from the Circuit Court of Georgia. These cases were allegations filed by the ViceConsuls 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 Venezuelean 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 Arraganta, 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 1825. The Antelope. also 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 United 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 Porfurguese and Spanish Consuls. |