1825. against them as enemies of the human race. The answer is,

The Antelope.

(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 found in their possession.

2. If the possession had been lawfully acqui

red, could the Court refuse restitution on the 1825. ground suggested?

The great case on this subject, is that of the Louis; our adversaries agree to refer the question to its decision.

It is a singular mistake, to suppose that Sir W. Scott directed restitution solely on the ground of the unlawfulness of the seizure; and thence to infer, that if the seizure had been lawful, he would have condemned. On the contrary, admitting the lawfulness of the seizure, he decides expressly that restitution must notwithstanding be awarded.

3. With a view to their own peculiar situation, could the United States maintain the doctrines contended for ? It is said, that, having promulgated our policy in relation to this subject, we have thereby given a warning to slave traders, which they are bound to respect ;-a pledge to the rest of the world which we are bound to redeem. But what is this policy, which we have thus notified to the world? It is to be found in our laws, inhibiting the slave trade. The penalties of these are denounced against our own vessels, and our own citizens, who shall engage in this traffic any where; and against foreigners and their vessels, who pursue it for the purpose of introducing negroes into the United States. There is no warning to the subjects of Spain and Portugal, quietly pursuing this traffic under the sanction of their own laws.

a 2 Dodson's Rep. 243. 249. 264.

The Antelope.

1825.

The Antelope

The 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 it 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 power; 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 basis 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.

We have no pretence, then, to enforce against 1825. others our own peculiar notions of morality. The Antelope. The standard of morality, by which Courts of

justice must be guided, is that which the law prescribes."

The learned counsel here proceeded to examine the evidence of proprietary interest, and insisted that (besides the other testimony) the official interposition of the Portuguese government supplied the place of proof of individual interest, and established the legality of the traffic.

b

The objection to the decree of the Circuit Court, on the ground that the distribution of the negroes was directed to be made by lot, was answered by the following considerations:

1. It appearing that the negroes found on board the Antelope consisted of three distinct parcels, taken from American, Spanish, and Portuguese vessels, the obligation to protect the former, was equal to, and not greater than, that which required the restoration of the latter. The capture by Smith being considered, as in the argument of our adversaries it is considered, as piratical, the right of the Spanish claimant to restoration under the treaty, was the primary right, as founded on the treaty, which is the supreme law; and in the fair construction of that treaty, it extended to every thing found on board the Spanish vessel. Then the proof which should diminish that right, was to be furnished by those who sought to diminish it.

a The Louis, 2 Dodson's Rep. 249.

The Bello Corrunes, 6 Wheat. Rep. 152.

The Antelope.

1825. 2. 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?