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down headlong the decree of the Circuit Court for the distribution of the victims between the Spanish and Portuguese Vice Consuls by lot. They had scattered to the winds this gambling of human bones, this cross and pile distribution of justice between liberty and bondage. They had rescued from the grasp of the overseer all the prisoners taken from the vessels bearing Portuguese colors; they had exacted proof of the number and identification of the individuals, to be given up to the Vice Consul of Spain. They had allowed salvage for them to captain Jackson, to be deducted from their estimated value; and from two hundred and ninety-six adjudicated by the courts below, to perpetual slavery, they had reduced the number to an estimate which could not exceed thirty-nine. The only principle to which half the court adhered, and thereby left the decree of the Circuit Court unreversed was, that the Spanish prohibition of the slave trade had not quickened into life quite in time to save these thirty-nine unfortunates from the clutches of their oppressors. 

Apply these principles to the case of the Amistad captives. They had been imported into the Havana in open and undisguised defiance of the Spanish prohibition of the slave trade enacted nearly twenty years before; but connived at by the Spanish authorities in Cuba for gold - for a doubloon a head. They had been shipped coast-wise, in continuance and for consummation of the slave-trading voyage from Africa. They had been clandestinely transferred to Ruiz and Montes, who were furnished with printed pretended passports, false and fraudulent upon their face, and these were the only title to property they could show. The captives of the Amistad were, when taken by Lieut. Gedney, not even in the condition of slaves; they were freemen, in possession not only of themselves, but of the vessel with which they were navigating the common property and jurisdiction of all nations, the Ocean: in possession of the cargo of the vessel, and of the Spaniards Ruiz and Montes themselves. Lieut. Gedney seized them as charged with the crimes of piracy and murder. The captives of the Antelope were taken by Captain Jackson in the condition of slaves. The courts of the United States were not called on to change their condition. The courts of the United must have enslaved the captives of the Amistad before they could restore them to their pretended masters. 

The decision of the courts of the United States against the captives 



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of the Antelope were all apologetic. They leaned almost entirely upon a decision of Sir William Scott in the case of the Louis, apparently if not really conflicting with that of Sir William Grant in the case of the Amédée. It is apparent that the Admiralty Courts of Great Britain have been divided on the question not less than those of the United States. Sir Willian Scott, who, during the war of the French Revolution, had been the main pillar of belligerent rights and arbitrary searches and visitations of neutral vessels, after the peace and the agitation of the slavery question among all the nations of Europe, took a very different lurch, and became the most fervent champion of the slave trade and of the unqualified exemption of all merchant vessels from visitation or search by the armed ships of every nation other than their own. In the case of the slave Grace, he decided that a West Indian female slave following her mistress to England, and emancipated by mere contact with English soil, became re-enslaved by returning to the West Indian  Islands,—a decision the reverse of which has been repeatedly decided in one of the principal slave states of this Union. In the case of the Louis he laid it down in most unqualified terms, which Chief Justice Marshall in the case of the Antelope repeats with seeming approbation, that the right of search is confined to a state of war. That it is a right strictly belligerent in its character, which can never be exercised by a nation at peace, except against professed pirates, who are the enemies of the human race: a position which, if true, would at once decide that both the capture of the Antelope by Captain Jackson, and of the Amistad by Lieut. Gedney, were unlawful and unjustifiable. I must pause before I assent to the doctrine to that extent. 

In the same case of the Louis, Sir William Scott travels out of his record, to start a hypothetical objection to the universality of this exemption of foreign vessels from visitation and search. "It is pressed as a difficulty," says the Judge, "what is to be done, if a French ship laden with slaves is brought in? I answer without hesitation, restore the possession which has been unlawfully divested: rescind the illegal act done by your own subject, and leave the foreigner to the justice of his own country."

Chief Justice Marshall, in the case of the Antelope, cites also this passage of the decision of Sir William Scott; but besides that it is a mere obiter dictum upon an imaginary case not before the court, it is assuredly not law within these United States. By