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ish Vice COnsul should be reduced from 166 to 93; and that number was still to be reduced by the rateable loss, which the clerk of the District Court had reported to be 30. And all the rest, by the decree of the Supreme Court, were to be liberated. If, then, the Africans to be delivered to the Spanish Vice Consul had been drawn from the whole number by lot, he would have received 63; but the Supreme Court having, upon this second appeal, decreed that the Spanish claimant must identify by proof of having been taken by the Arraganta, in the Antelope, every individual, to be delivered up to him, explicitly rejected, for the second time, the lot, as a mode of ascertaining freedmen among slaves, and actually diminished the number of victims delivered up to the Spaniard, from 63 to 39. And this was the number finally delivered up by the decree of the Supreme Court of the United States of the captives of the Antelope to the Spanish Vice Consul. But this was not the last decision of the Supreme Court in the case. It was remanded to the Circuit Court, with directions to make a final disposition of the controversy between the parties pursuant to the principles of the decrees of 1825 and 1826. And now came up the question, to use a vulgar but significant phrase, Who should pay the piper?
"The Circuit Court, [says the Report, 12 Wheaton, 547,] in order to enable it to decree finally in the case, directed the register t take and report an account of the costs, and also of the expenses of keeping, maintaining, &c. of the Africans, by the marshal, and which account (amounting to upwards of thirty-six thousand dollars) was accordingly reported. Expectations were filed to the report by both the Portuguese and Spanish claimants. The Circuit Court also caused proofs to be taken, for the purpose of identifying individually the Africans to be delivered to the Spanish claimants, as directed by the decree of 1826. 
Thus circumstances, the case came on for final hearing before the Circuit Court also caused proofs to be taken, for the purpose of identifying individually the Africans to be delivered to the Spanish claimants, as directed by the decree of 1826. 
Thus circumstanced, the case came on for final hearing before the Circuit Court. The Court decreed that the Portuguese claimant should not be made liable for costs, or any proportion of the expenses and charges of the marshal, for maintaining, &c. the Africans: and being of opinion that 39 of the Africans were sufficiently identified, by proof, as being the property of the Spanish claimants, directed the 39 Africans, so identified, to be delivered to the Spanish claimants, upon their paying a proportion of the costs and expenses reported by the registrar, in the ratio of the number
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of Africans delivered to the whole number. And the Circuit Court was further of opinion, that the residue of the Africans not directed to be delivered to the Spanish claimants should be delivered to the United States, to be disposed of according to law: but on the question, whether they shall be delivered absolutely, or on condition of payment of the balance of the expenses which will remain unsatisfied, after charging the Africans asjudged of the Ciruit Court being divided in opinion, ordered this difference of opinion to be "certified to this Court."
The United States District Attorney appealed from so much of this final order of the Circuit Court as related to the apportionment among the several parties of the costs and expenses in the preservation, maintenance, and custody of the said Africans, and of the costs and expenses of the various proceedings had in relation to the aid Africans; and also from so much of said order as decreed 39 of the said Africans to the Spanish claimants.
So extraordinary, so anti-judical is everything upon the records in this case fo the Antelope, that the Supreme Court actually did not know what was the question upon which the judges of the Circuit Court were opposed in opinion--they supposed it was, whether the Africans not directed to be delivered to the Spanish claimants should be delivered by the marshal to the United States, absolutely and unconditionally, to be disposed of according to law, that is, to be liberated and sent home; or whether it should be imposed on the United States, as a condition precedent to their delivery, that the United States should pay to the marshal his claim for expenses, at the rate of sixteen cents a day for each African, (for several years) in the ratio of the number to be delivered to the United States.
This, it will be perceived, was still the question of freedom or slavery to the poor Africans. If the decree had been, that the payment of these expenses, amounting to about 350 dollars a head, was a condition precedent to their delivery to the United States, in the event of nonpayment, the marshal had a lien upon the Africans, and they would have been his slaves.
The mode of proof admitted by the Circuit Court to identify the individuals to be doomed to slavery and delivery to the Spanish claimants cannot commend itself to the sense of justice, of humanity, or of freedom. Fifty of them, employed upon the fortifications,
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