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12

The United States, in their own right, having no interest in the subject matter in controversy, could have had no motive for making themselves a party to the proceedings, except to claim the delivery of the Africans to the Executive as their protector, to enable him to fulfil the beneficent designs of the Act of Congress of 1819. It was in that capacity that the Executive Government appeared and acted in the case of the Antelope, (10 Wheaton, 66,) to deliver, not to enslave; to restore the oppressed to their country, not to aid the robber in rivetting their chains. The similar claim made by the Unites States in the present case, was sanctioned by the Court; who decreed that the Africans should be delivered to the Executive to be transported to Africa, pursuant to the act of Congress, in precise conformity with the request of the District Attorney. How then could the United States be aggrieved by the decree so as to entitle them to an appeal? What allegation of theirs does it contradict? What fact put in issue by them does it deny? None whatever. They asked for no decree other than such as was actually made, except on the contingency that the Court should find, on the allegations of the Spanish claimants, that the Africans were their property. That fact was not found by the Court, and the Spanish claimants, between whom and the Africans the question of property or freedom was put in issue, have not appealed from the decision.

The Africans, although as freemen, they might well complain of it, have taken no appeal from the decree which places them in the hands of the Executive. The Government of the United States have not appealed on their own account, to avoid the burthen of transporting the Africans to their homes. In that capacity they could not appeal from the decree they prayed for, nor have they attempted it. The appeal itself exhibits on the face of it the character in which it is taken by the United States: "The United States, claiming as aforesaid in pursuance of a demand made upon them by the Minister of Her Catholic Majesty, move an appeal." And that is the only appeal which has been taken from the decree of the Court below.

What clause in the Constitution or what law confers on the Executive the right of appearing as a suitor in the courts of the United States to prosecute claims to property of any sort as the representative of foreigners, and to appeal from court to court in their behalf? It will not be pretended that any such power is expressly conferred. If it exists, it must be implied, because it is necessary to the performance of some duty imposed on the National Executive in regard to such property. But no such duty or necessity can exist where the property in 

Transcription Notes:
no indents.