Viewing page 59 of 69

This transcription has been completed. Contact us with corrections.

116

and the crew of the Revenue Cutter were confirmed.  One step further and the case of the Antelope would have conferred unfading glory on the Supreme Court.  One step more, and the heartless sophistry would have been silenced, and the cold blooded apathy to human suffering would have been stung into sensibility, which delivered up to Spanish slave traders, a vessel, forfeited by the just severity, and thirty-nine Africans emancipated by the benignty, of the laws of this Union for the suppression of the African slave trade.

That step was not taken; there lacked one voice in a divided court to reverse the whole of that decree of the Circuit Court of which so many parts were annulled.  One obnoxious principle was left to have its sway in that particular case, because there wanted a casting vote to reverse it - but Chief Justice Marshall himself, in announcing the affimation of the sentence on this point of the Circuit Court, guarded against any and every future attempt to alledge it as an authority by explicitly declaring that in this judgment of the court NO PRINCIPLE WAS SETTLED.

The opinion delivered by him on this first decision of the case in the Supreme Court, must be considered as that of the Chief Justice himself.  It is in a tone entirely different from that in which the judges of the lower courts had indulged themselves.  It contains no angry invective, no sneering sarcasm, no direct defiance, on the motives of the British government, and the solicitude of the British tribunals, for the suppression of the slave trade.  It states with a sincere and painful effort of impartiality the reasons for and against the principle that the trade is contrary to the laws of nations.  It admits and emphatically declares it contrary to the laws of nature. It cites and analyzes the general decisions upon the same point in the British Courts of Admiralty, and examines them with freedom, but without asperity.  The Chief Justice says that as no principle was settled by the affirmance of the decree of the Circuit Court, the judges had concluded not to assign their respective reasons for their conflicting opinions; but as to him was assigned the duty of pronouncing the decree of the court, his argument was necessarily on the side of that division which sustained the decree of the Circuit Court, and consequently there is no counteracting opinion upon the records to balance it.  But it almost balances itself.  The argument with much hesitation concludes 


117

that the African slave trade is not contrary to the Law of Nations - but it begins with admitting, also with hesitation, that it is contrary to the law of nature.  He says - "That it is contrary to the law of nature will scarcely be denied.  That every man has a natural right to the fruits of his own labor, is generally admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against his will seems to be the necessary result of this admission.

"Seems, Madam - Nay it is - I know not seems."

Surely never was this exclamation more suitable than on this occasion; but the cautious and wary manner of stating the moral principle, proclaimed in the Declaration of Independence, as self-evident truth, is because the argument is obliged to encounter it with matter of fact.  To the moral principle the Chief Justice opposes general usage - fact against right.  "From the earliest times war has existed, and war confers rights in which all have acquiesced.  Among the most enlightened nations of antiquity, one of these was, that the victor might enslave the vanquished-
 
"Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent cannot be pronounced unlawful.

"Throughout Christendom, this harsh rule has been exploded, and war is no longer considered as giving a right to enslave captives.  But this triumph of humanity has not been universal.  The parties to the modern law of nations do not propagate their principles by force; and Africa has not yet adopted them.  Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves.  Can those who have themselves renounced this law, be permitted to participate in its effect, by purchasing the beings who are its victims?

"Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself a part, and to whose law the appeal is made.  If we resort to this standard as the test of international law, the question as has already been observed, is decided in favor of the legality of the trade.  Both Europe and American embarked in it;