# The Antelope (23 U.S. 66)

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See also The Antelope (24 U.S. 413) and The Antelope (25 U.S. 546).
United States Supreme Court
23 U.S. 66
The Vice-Consuls of Spain and Portugal
​ APPEAL from the Circuit Court of Georgia.
These cases were allegations filed by the Vice-Consuls 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 ​ 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 Portuguese and Spanish Consuls.
​ The Court dismissed the libel and claim of John Smith. They dismissed the claim of the United States, except as to that portion of the Africans which had been taken from the American vessel. The residue was divided between the Spanish and Portuguese claimants.
No evidence was offered to show which of the Africans were taken from the American vessel, and which from the Spanish and Portuguese; and the Court below decreed, that, as about one third of them died, the loss should be averaged among these three different classes; and that sixteen should be designated, by lot, from the whole number, and delivered over to the Marshal, according to the law of the United States, as being the fair proportion of the twenty-five, proved to have been taken from an American vessel.
Feb. 26th, 28th, and 29th.
The Attorney General, for the appellants, stated, that the cases of the respective allegations of the Spanish and Portuguese Consuls, upon which distinct appeals had been taken, which had been separately docketed in this Court, were so blended together, that it was thought most proper to bring on the hearing in both cases at the same time.
Mr. Chief Justice MARSHALL stated, that the appellants, in the argument of No. 12, might refer to the evidence in No. 13; they might invoke it into this cause, so far as it was necessary for their purpose, and the Court would take notice ​ of the facts which appeared in the other transcript; but that the two causes must come on separately, and in their order. But it has been thought most expedient to report the two arguments together.
The reasons assigned in the appellants' case, for reversing the decrees of the Court below, were as follows:
1st. That the possession of these Africans by the claimants, before the capture by the privateer, affords no presumption that they were their property; that they must show a law entitling them to hold them as property.
2. That if these Africans are to be considered as having been in a state of slavery, when in the Spanish and Portuguese vessels from which they were taken, and if the Court shall consider itself bound to restore them to the condition from which they were taken, this can be done only by placing them in the hands of those who shall prove themselves to have been the owners; and that this purpose cannot be answered by restoring them to the Consuls of Spain and Portugal.
3. That if some of these Africans were the property of the claimants, yet some were not; and failing to prove which were theirs, the decree is erroneous, in determining by lot, a matter which the claimants were bound to establish by proof.
Mr. Key, for the appellants, argued, that the facts of the case presented the question to be considered in a point of view, ​ peculiarly favourable to the appellants. A piratical vessel was found hovering near our coast, apparently meditating a violation of our laws. It was brought, with the persons on board, into the custody of the Court, by an act of seizure, not only lawful, but meritorious towards the claimants, since it rescued what they claim as their property, from the grasp of pirates. If the claimants had not interposed, the course of the Court would have been obvious. The illegal and piratical capture by our citizens, gave them no rights; and even if it did, they instantly forfeited them under our laws, which they intended to violate. But the claimants demand restitution of the Africans found on board this vessel, alleging them to be their property, lawfully acquired on the coast of Africa, and piratically taken from them by the Arraganta. This demand is resisted by the government of the United States, upon the ground that the persons in question are not by our laws to be considered as slaves, but as freemen. These laws the Court must administer, and not the laws of Spain. Our national policy, perhaps our safety, requires, that there should be no increase of this species of population within our territory. The acts of Congress provide that, however brought here, they shall be set free, and sent back to their own native country. The Spanish and Portuguese claimants demand them as their property. We repel the claim, by asserting their right to liberty. The demand of restitution is inconsistent with our policy, as declared in our statutes and other ​ public acts. These declarations gave fair warning to those engaged in the slave trade, that though we did not intend to interfere with them on the high seas, yet, if their victims should come within the reach of our laws, we should protect them. These acts constitute a solemn pledge to all nations interested in the suppression of this inhuman traffic, and to Africa herself, that if the objects of it should seek our protection, where they may lawfully receive it, within our territorial jurisdiction, and at the feet of our tribunals of justice, they should be entitled to that protection. Therefore, admitting the facts as alleged by the claimants, what they claim as justice in a matter of property, cannot be done to them, without disregarding our own policy, endangering our own safety, infringing our own laws, and violating the plighted faith of the country.
But supposing they have a right to insist on restitution of their property, what proof ought to be required, and what proof do they give, of their proprietary interest? It is material, also, here to consider, that those human beings, who are claimed as property, come into the jurisdiction of the Court, not by any wrongful act of ours, but lawfully, providentially; and are to be treated just as if they were thrown upon our shore by a storm. The Spanish owners show, as proof of property, their previous possession; and the possessor of goods, it is said, is to be presumed the lawful owner. This is true as to goods, because they have universally and necessarily ​ an owner. But these are men, of whom it cannot be affirmed, that they have universally and necessarily an owne. In some particular and excepted cases, depending upon the local law and usage, they may be the subjects of property and ownership; but by the law of nature all men are free. The presumption that even black men and Africans are slaves, is not a universal presumption. It would be manifestly unjust, to throw the onus probandi upon them to prove their birthright. Whatever may have once been the condition of Africa, and of the African slave trade, the authentic information on this subject will show, that it is now impossible to determine, by the fact of possession, whether the party has been lawfully acquired or not. There must be an overwhelming probability of the lawfulness of such acquisition, to raise such a presumption. This is instanced by the different presumptions allowed in different parts of our own country, in respect to this description of persons. In the southern States, there is the highest degree of probability, from universal practice and well known law, that such persons are slaves. But in the northern States, the probability is just the contrary, and the presumption is reversed. And in the present state of the slave trade, Africans, in a slave ship on the high seas, are in no such circumstances as to raise a presumption that they are lawfully held in slavery. For if there be a permitted slave trade, there is also a prohibited slave trade; and the prohibition is much more extensive than the permission. ​ The claimants must, consequently, show something more than mere possession. They must show a law, making such persons property, and that they acquired them under such law. In order to maintain their title, they show the municipal law of Spain; but the operation of that law can only extend throughout the territory of Spain, and to Spanish vessels on the high seas. These persons are now within the jurisdiction of our conflicting law; and they are brought here without any violation of the sovereign rights of Spain. Our own law, which is in force here, must prevail over the law of Spain, which cannot have an extra-territorial operation. There is no reason of comity, or policy, or justice, which requires us to give effect to a foreign law conflicting with our own law on the same subject. Besides, the Spanish law is not only contrary to ours, but is inconsistent with the law of nature, which is a sufficient reason for maintaining the supremacy of our own code. If this municipal law of Spain were allowed to prevail against our law, in our own territory, and before our own Courts, the same effect must be given to the law of every other country, under the same circumstances. If, instead of these Africans, there had been taken by the same illegal capture, Shanish slaves, from an Algerine corsair, and afterwards brought in the same manner into our ports, they might, upon the same principle, be reclaimed by the representative of Algiers, who could easily show, that, by the law prevailing among the Barbary states, they were slaves.
The municipal law of Spain, then, is insufficient to maintain the title set up by the ​ claimants. They are driven to the necessity of invoking the aid of the law of nations, as sanctioning their asserted right to property in these human beings. But if the law of nations is silent upon this subject; if it neither sanctions nor forbids the traffic in African slaves; if it is municipal law alone which determines in what manner private property is acquired and lost, then the claimants have no law to stand upon in asserting their claim. Supposing, however, this idea not to be correct, it is incumbent on the claimants to show, positively, that the slave trade, as now practised, has the sanction of the law of nations, as now understood by the civilized and Christian nations of the world. That it once had that sanction, may, perhaps, be admitted; but, it must also be admitted, that there was once a time when it had not that sanction. The permission began by general assent and usage. The King of Spain, in the preamble to his edict of 1817, admits that it was incorporated into the code of nations as an exception to the general principles on which that code is founded. When the practice was adopted by the general, not universal assent, of civilized nations, it became a part of the law of nations. In the same manner, a general, and not a universal, denunciation of the practice, is sufficient to make it cease to be a part of the law of nations. In the great moral and legal revolution which is now going on in the world respecting this trade, the ​ time must come when it will cease to have a legal existence by the universal concurrence of nations. In the mean time, the question must be discussed, as it arises under various circumstances, until we reach the desired period, when the universal sentiment of the wise and the good shall become the rule of conduct sanctioned by authority capable of enforcing it. All the modifications and improvements in the modern law of nations have been gradually introduced. The writers upon that law explain the manner in which these changes have been made and sanctioned. The documents to be laid before the Court will show the present state of the world's opinion and practice upon this subject, and will prove that the time is at hand, if it has not already arrived, when the slave trade is not only forbidden by the concurrent voice of most nations, but is denounced and punished as a crime of the deepest die. This is shown by the declarations contained in the treaties of Paris and Ghent; by the acts and conferences at the Congresses of Vienna, London, and Aix la Chapelle; by the treaties between Great Britain, and Spain, and Portugal; by the negotiations between the United States and Great Britain; and by the reports of the committees of the House of Commons, and the House of Representatives in Congress. We contend, then, that whatever was once the fact, this trade is now condemned by the general consent of nations, who have publicly and solemnly declared it to be unjust, inhuman, and illegal. We insist, that absolute unanimity on this subject is unnecessary; that, as it was introduced, so it may be abolished, by general concurrence. This general concurrence may not authorize a Court of justice to pronounce it a crime against all nations, so as to make it the duty of all to seek out and punish offenders, as in the case of piracy. No decision has yet gone that length, nor is it necessary in this case to contend for such a principle. But in a case where the Africans are lawfully brought before a Court of the law of nations, and are claimed as property, by those who must be considered as actors in the cause, and who must, consequently, prove their title as alleged; the fair abstract question arises, and their claim may well be repudiated as founded in injustice and illegality.

## Notes

* ↑ The Spanish case as No. 12, and the Portuguese as No. 13. of the facts which appeared in the other transcript; but that the two causes must come on separately, and in their order. But it has been thought most expedient to report the two arguments together.
* ↑ Vide Appendix, Note I. (A.)
* ↑ Vide Appendix, Note L. (B.) p. 32.
* ↑ Vattel, Droit des Gens, Chap. Prelim. § 25-27. 56. liv. 1. ch. 23. § 293. Burlam. 165. Martens, l. 9. § 5. l. 11. § 1.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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