The Antelope - 23 U.S. 66 (1825)
U.S. Supreme Court
The Antelope, 23 U.S. 10 Wheat. 66 66 (1825)
23 U.S. (10 Wheat.) 66
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 civilized nations, it may stall 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.
It seems that in case of such a seizure, possession of Africans is not a sufficient evidence of property, and that the onus probandi is thrown upon the claimant to show that the possession was lawfully 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 suspicion that a violation of the slave trade acts was intended are not to be restored without full proof of the proprietary interest, for in such a case the capture is lawful.
And whether in such a case restitution ought to be decreed at all was a question on which the Court was equally divided.
Where the Court is equally divided, the decree of the court below is, of course, affirmed so far as the point of division goes.
Although a consul may claim for subjects unknown of his nation, yet restitution cannot be decreed without specific proof of the individual proprietary interest.
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 Venezuelan 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 who 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 libeled 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. It 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.