While the case proceeded, the U.S. marshal in Savannah kept the Africans locked up partly for their own protection from possible kidnappers and partly to prevent them from escaping. That summer Savannah was in the grip of a terrifying yellow fever epidemic. Georgia law prohibited ships from landing in Savannah during the summer months, when diseases spread like wildfire, but no one cared about exposing the Africans to yellow fever. Ten percent of the city’s population died, including many of the Africans. By the fall, there were 212 Africans remaining.23 Though the U.S. Navy paid for the cost of feeding the slaves, the thrifty mayor of Savannah insisted that the Africans should be put to work—for no wages. Fifty were ordered to work on the city’s fortifications. Others were rented out to local residents. More than one hundred worked the steamy fields of the U.S. marshal’s own plantation. All this was done under the authority of the federal court. President Monroe objected that the cost of feeding the Africans fell on the federal government, but he did not complain about the moral hypocrisy of the government exploiting the involuntary labor of persons that the U.S. government argued in court were free.24
The case reached U.S. District Judge William Davies in January 1821. Under the 1819 act, Captain Jackson would be entitled to receive a bounty of twenty-five dollars for each of the Africans he had freed. In addition to Captain Jackson, the Spanish and Portuguese vice-consuls and Captain John Smith filed claims for the ship and its cargo. Judge Davies held that even though the slave trade may be unjust and illegal under U.S. law, it was permissible under international law, and therefore the Africans should be returned as slaves to Spain and Portugal. The problem was that since no one knew for certain which Africans came from which ships, there was no way of knowing who belonged to which country. More than one hundred of the kidnapped Africans had either perished or escaped, so it was uncertain how many Africans were owed to Spain or Portugal. Under U.S. law, any Africans allocated to the United States would be freed. The court decided to allocate the Africans proportionately to Spain, Portugal, and the United States. The judge determined that 63 should be handed over to Spain, 142 to Portugal, and the remaining 7 to the United States. Captain Jackson received a quarter of the salvage value of the Antelope plus a bounty of $175 for the seven Africans freed to the United States. U.S. Attorney Habersham appealed to the circuit court—in defiance of the president’s desire to end the litigation.25
Supreme Court Justice William Johnson heard the appeal as the circuit judge sitting in Milledgeville, then the booming capital of Georgia. Appointed by Jefferson when he was only thirty-three, Justice Johnson bore the smug assurance of his own intellectual superiority. John Quincy Adams described Justice Johnson as “restive, turbulent, hot-headed, flaringly independent.”26 Of all the men who served on the Marshall Court, Johnson was the least collegial.27 He dissented more often than any other justice and always in harsh tones. His opinions did not fit into any coherent pattern but proceeded from some contrarian impulse.
The day the argument concluded, Johnson issued his opinion without a moment of deliberation. While he acknowledged that slavery was a “national evil,” he rejected the argument that the slave trade was condemned by international law. “However revolting to humanity” this was, Johnson believed that slaves were no different from any other commercial cargo under the law of nations. Therefore a U.S. court could not enforce laws banning the slave trade against foreign slavers, and the slave traders were entitled to the return of their property. Johnson adjusted the number of Africans to be returned to Portugal and increased to sixteen the number of Africans to be freed to the United States.28 Justice Johnson’s opinion flew in the face of Congress’s declaration that same year that the slave trade was “piracy” under international law punishable by death.29
Since the South American pirates had not kept records of which Africans had been captured from the American vessel, it was impossible to know which sixteen Africans should be freed. That alone might have given the court a reason to withhold its judgment, but Justice Johnson was not deterred by a lack of evidence: “[S]hall we refuse to act because we are not vested with the power of devination [sic]?” Johnson decided to organize a game of chance: The Africans could win their freedom by drawing lots. It would have been unthinkable that any jurist would hazard the freedom of a white man in a raffle, but Johnson had no such scruples when it came to Africans. “We can only do the best in our power, the lot must decide their fate, and the Almighty will direct the hand that acts in the selection.”30 The Almighty, however, was not paying attention.
Each African was assigned a number, and the numbers were copied on small slips of paper. The assembled Africans watched while the U.S. attorney’s brother slowly drew sixteen slips from a box and called out their numbers. It is unknown whether the Africans really comprehended that their fate was being decided by lots, or whether they watched in anxious prayer. When all sixteen numbers were chosen, the rest were told they would be sold as chattel. In the guise of doing justice, the court dispensed freedom with a cruel capriciousness. The lives of 212 Africans were casually discarded as if they were losing lottery tickets.31
On Saturday, February 26, 1825, Attorney General William Wirt and Francis Scott Key appeared before the Supreme Court to argue the appeal on behalf of the Africans. Wirt’s reputation as a brilliant litigator was undoubtedly due in part to his powerful appearance. He had a distinguished face with an intense glare and a strong jaw. His broad, noble forehead was crowned with a widow’s peak and a dramatic swirl of long white curls. Key, who was a poet as well as an attorney, frequently argued before the Supreme Court. His flamboyant style of argument, not unlike the lyrics he wrote for “The Star-Spangled Banner,” was full of fury and bombast. Both Key and Attorney General Wirt were slaveholders and appeared despite their outspoken support for slavery. Key, in particular, had prosecuted cases against abolitionists. Opposing them on behalf of the Spanish vice-consul were U.S. Senator John Macpherson Berrien of Georgia and Charles Jared Ingersoll. The Portuguese vice-consul was represented by Richard Henry Wilde. Wilde was a Georgia congressman and also a poet, who throughout four days of argument kept a curious silence.32
Key argued that since the slave trade was illegal in the United States, U.S. law must prevail in U.S. courts. The Antelope was a “piratical vessel.” Though there was no treaty outlawing the slave trade, it violated natural law—a point that even the king of Spain had conceded.33 The “time is at hand, if it has not already arrived,” Key asserted, “when the slave trade is not only forbidden by the concurrent voice of most nations, but is denounced and punished as a crime of the deepest die.” In fact, most European nations had at least condemned the slave trade.34 Portugal and Spain had signed treaties with Britain in 1815 and 1816, respectively, promising to end the slave trade. And both had signed a declaration at the Congress of Vienna in 1815 condemning the slave trade as “repugnant to the principles of humanity and universal morality” and calling on all governments to abolish it.35 Finally, Key pointed out that neither Spain nor Portugal had any proof of ownership beyond a lottery that would surely shock the conscience of any court.36
Counsel for Spain challenged the authority of the Dallas to seize a ship flying a foreign flag outside U.S. waters.37 Berrien argued that the United States had no license to act as “censors of the morals of the world.”38 Moreover, the slave trade could not violate natural law. After all, it had been, until very recently, “universally tolerated and encouraged.”39 Berrien insisted that it would be hypocritical for the Supreme Court to condemn the slave trade while the Constitution safeguarded slavery at home.
Attorney General Wirt responded that Spain and Portugal had not met the burden of proving the Africans belonged to them. “Some of them are confessedly free . . . Which of them are slaves, it is impossible to determine by any rule of evidence known to our practice.”40 Wirt asserted that the Africans remained free both under the law of nature and the law of their own countries. “The mere
possession of an African, claiming him as a slave by a Spanish ship, on the coast of Africa, would no more prove the African a slave, than the possession of a Spaniard, by an African ship on the coast of Spain, would prove the Spaniard a slave.” And the persistence of slavery in the United States could not provide “any excuse or palliation; for perpetuating, and extending the guilt and misery of the slave trade.”41
Just a week after administering the oath of office to President Monroe for his second term, Marshall delivered the Court’s opinion. For Chief Justice Marshall, Antelope must have been among the most emotionally wrenching decisions he faced on the Court. He had strong personal feelings on the subject. He was an outspoken opponent of the slave trade, a founding leader of the Society for the Colonization of Free People of Color, and the founder, president, and principal benefactor of the Virginia Society for Colonization until his death. He had defended slaves pro bono in Virginia, and as a member of the Virginia House, he had supported legislation to encourage the manumission of slaves.42
This was by no means the first time that Marshall had confronted racial injustice on the bench. Marshall once described to Justice Story a case he heard on the circuit involving a Virginia law that discriminated against free blacks. Marshall admitted that “I might have considered its constitutionality had I chosen to do so, but it was not absolutely necessary, &, as I am not fond of butting against a wall in sport, I escaped on the construction of the act.”43 Marshall preferred to deal with the issue of slavery and states’ rights indirectly. As a circuit court judge, Marshall had decided a number of cases concerning the property rights and liabilities of slave owners and traders, but he had never been presented squarely with the question of whether the slave trade was consistent with the law of nations.44 Antelope offered Marshall an opportunity to strike a blow against slave trading, but it would be difficult to reach that outcome. The Supreme Court now included Justices Smith Thompson, Joseph Story, Bushrod Washington, Gabriel Duvall, William Johnson, and Thomas Todd. Though Justices Duvall and Story had issued opinions critical of the slave trade, at least four of the justices were slaveholders.45 All but Thompson and Story were southerners, and all but Washington and Marshall had been appointed by Republican presidents. Under the circumstances, it would be a challenge to cobble together a majority to reverse Justice Johnson’s circuit court decision.
Marshall first considered the question of whether the slave trade violated international law. Marshall acknowledged that regardless of how much European states condemned the slave trade, “[t]he Christian and civilized nations of the world with whom we have most intercourse, have all been engaged in it.” Only in the past couple of decades had the Europeans begun outlawing the trade, but still it persisted.46 For example, even though Britain had outlawed the slave trade by statute, British courts were still divided on whether international law permitted the slave trade.47 Though Marshall recognized that the slave trade violated natural law, he wrote that courts must distinguish morality from law.48
On behalf of the Africans, the U.S. attorney had argued that even if the slave trade was not illegal under international law, it was clearly outlawed by the United States, and a U.S. court should apply U.S. law. Marshall responded that since all sovereign nations are equal, “no one can rightfully impose a rule on another.” Though the United States could outlaw slave trading by U.S. persons and on board U.S. ships, the Africans were enslaved on Portuguese and Spanish ships subject to the laws of those countries. “[T]his traffic remains lawful to those whose governments have not forbidden it.”49
In fact, it was not clear what the law was in Spain and Portugal. Both governments had issued declarations against the slave trade, and both had signed treaties with Britain condemning it. But neither country had a statute clearly outlawing slave trade. Even assuming that Spain and Portugal intended to outlaw the slave trade, Marshall held that a U.S. court could not apply Spanish or Portuguese criminal laws prohibiting the slave trade. Though U.S. courts do apply foreign law in civil suits, such as contract or tort law, Marshall declared that “[t]he Courts of no country execute the penal laws of another.”50 This principle that U.S. courts will not enforce a foreign government’s criminal law was another invention of Marshall’s legal imagination that persists in our law today.
To resolve the sticky question as to which Africans belonged to Spain or Portugal, the Court decided that the claimants had the burden of proving who owed which slaves. The counsel for Portugal, Congressman Wilde, kept quiet. He had not presented an actual claim on behalf of Portugal but had confined himself to arguing that Portugal should not have to pay for the upkeep of the Africans while they were in federal custody. Marshall concluded that the “unaccountable absence, of any Portuguese claimant, furnishes irresistible testimony, that no such claimant exists, and that the real owner belongs to some other nation, and feels the necessity of concealment.” The implication was clear that the real owner in interest was an unidentified American fearing prosecution. As it later turned out, the real claimant was hiding in plain view. Accordingly, the Court dismissed Portugal’s claim.51 Spain could show that its ship had originally carried ninety-three Africans, but since so many of the original captives had died or were lost, the court reduced the number of Africans that Spain was entitled to from the sixty-three awarded by the circuit court to thirty-nine.
The remaining 149 Africans were “freed,” but they were not quite free. The president ordered them deported on a naval vessel to the newly created U.S. colony of Liberia. There they were placed under the close supervision of the euphemistically named United States Agency for Liberated Africans, which assigned them to housing units and jobs. The Africans had no choice but to comply.52 After being kidnapped by slave traders, seized by pirates, rescued by the U.S. Navy, imprisoned by the federal authorities, enslaved by a U.S. marshal, and subjected to a dehumanizing lottery, they were finally “liberated” in a strange new country and indentured to work for the U.S. Agency—for the rest of their lives—as “free” men and women. Though they were compensated for their labor, they were only marginally freer than slaves.
While the “freed” Africans were forcibly deported, the thirty-nine consigned to Spain never left the United States. Another legal appeal was filed in the Supreme Court on their behalf, which extended their detention and delayed the final outcome until 1827, when the Supreme Court reaffirmed its prior decision. By then, it was clear that the Africans’ real “owners” never stepped forward because they, too, were probably Americans who feared prosecution under U.S. law.53 The Spanish vice-consul had simply acted as agent for the true owner. During seven years of litigation, the Spanish and Portuguese vice-consuls had accumulated legal fees and other costs associated with the Africans that exceeded the market value of the thirty-nine slaves. All this time, the fees were quietly paid by Congressman Wilde, the counsel to Portugal. Instead of repaying Wilde for his expenses, the Spanish and Portuguese vice-consuls agreed to transfer ownership of “their” Africans to Wilde.54 The congressman later insisted that he had acted with “humane” motives: “My feelings toward those poor creatures induces me to wish them free. But if slavery is their destiny I desire to render it as endurable as slavery can be.” Rather than sending them to Spain, Wilde sent them to Florida, which he called the “land of flowers,” to work on his sugar plantation.55 The ultimate beneficiary of the Court’s decision was a U.S. congressman, who, contrary to the spirit if not the letter of U.S. law, profited from a depraved lottery and the piracy of a foreign slave ship.
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PERSONALLY, MARSHALL VIEWED slavery and the slave trade as an abomination.56 Marshall’s decision in Antelope betrayed this conviction. Why did he step back from the opportunity to affirm an emerging principle of international law outlawing the slave trade? Marshall could surely see the arc of history bending in that direction.
Marshall’s decision is especially difficult to explain in light of a decision b
y Justice Story on the Massachusetts circuit court just three years earlier. In a case arising out of the seizure of a French slave ship, the Jeune Eugénie, Story excoriated the slave trade and declared that it violated international law, which he affirmed rested on natural law and general principles of right and justice.57 One must question why Marshall did not rely on Story’s circuit opinion as precedent and hold that the slave trade was illegal.
One way to explain Marshall’s opinion is that he believed obedience to the law trumped moral judgments.58 According to this view, Marshall saw judges as neutral referees merely applying fixed legal rules. But that view does not square with his expansive interpretation of the Constitution. The man who wrote Marbury and McCulloch was not shy about inventing legal principles. Marshall understood that he was not just applying the law mechanically; he was also making law.
An alternative explanation might be that Marshall feared that a decision condemning the slave trade would threaten the Union.59 But by 1825, it would hardly be controversial to assert that the slave trade violated international law. Congress had already outlawed the trade three times with broad support from southerners. And Marshall had not backed down in the past from issuing controversial opinions that threatened state sovereignty and slavery.
A third possibility is that Marshall rejected the view that natural law could bind sovereign states. The danger of imposing natural law on sovereign states is that it would give courts broad latitude to pluck legal principles from the air and interfere with the power of the political branches of government to manage foreign relations. By insisting that the United States could be bound only by its own consent to treaties or customary international law, Marshall once again reaffirmed the constitutional separation of powers. Yet this explanation is not entirely satisfactory either because in other contexts—his legal memoranda during the XYZ Affair and his later opinions on Indian sovereignty—Marshall references natural law as a source of international law. Moreover, the international legal authorities whom Marshall most frequently relied upon—Vattel, Grotius, Pufendorf, and Rutherford—accepted at least in part that natural law could be a foundation for international law.60
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