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papers were not strictly correct, they still re- that the slaves were not property in Cuba, at lied on them in preference to further extra- the date of the document signed by the Gov. neous proof. Add to all this, the twelfth arti: ernor-General, because they had been lately in. cle of the treaty with Spain (1 Laws of United troduced into that island from Africa, and States, 270), which makes passports and certifi- persons so introduced were free. To this it is cates evidence of property; and the principle answered that if it were so, this court will may be regarded as established beyond a ques. not look beyond the authentic evidence under tion that the regular documents are the best the official certificate of the Governor-General; and primary evidence in regard to all property that, if it would, there is not such evidence as on board of vessels. This is indeed especially this court can regard to be sufficient to overthe case when they are merely coasting vessels, throw the positive statement of that document; or such as are brought in on account of dis- and that, if the evidence were even deened tress, shipwreck, or other accident. The in- sufficient to show the recent introduction of the justice of requiring further evidence in such negroes, it does not establish that they were cases is too apparent to need any argument on free at the date of the certificate. the subject. Nor is it a less settled rule of I. This court will not look behind the certif. international law that when a vessel puts in cate of the Governor-General. It does not ap by reason of distress or any similar cause, she pear to be alleged that it is fraudulent in it. is not to be judged by the municipal law. The self. It is found by the District Court to have unjust results to which a different rule would been signed by him, and countersigned by the lead are most apparent. Could we tolerate it, officer of the customs. "It was issued [*546 that if one of our own coasters was obliged to by them in the appropriate exercise of their put into Cuba, and had regular coasting pa functions. It resembles an American register pers, the courts of that country should look or coasting license. Now, all the authorities beyond them as to proof of property! that have been cited show that these documents

If this point be established, is there any dif- are received as the highest species of evidence, ference between property in slaves and other and that, even if there is error in the proceed. property? They existed as property at the ings on which they are founded. The correctime of the treaty in perhaps every nation of tion must be made by the tribunal from which the globe; they still exist as property in Spain it emanates. Where should we stop if we were and the United States; they can be demanded to refuse to give faith to the documents of as property in the States of this Union to public officers ? All national intercourse, all which they fly, and where by the laws they commerce must be at an end. If there is error would not, if domiciliated, be property. If, in issuing these papers the matter must be then, they are property, the rules laid down in sent to the tribunals of Spain for correction. regard to property extend to them. If they II. But if this court will look behind this are found on board of a vessel, the evidence of paper, is the evidence sufficient to contradict property should be that which is recognized it? The official declaration to be contradicted as the best in other cases of property-the ves- is certainly of a character not to be lightly sel's papers, accompanied by possession. In set aside in the courts of a foreign country. 545*) the case of The Louis, *2 Dodson, 238, The question is not as to the impression we blaves are treated of, by Sir William Scott, in may derive from the evidence; but how far express terms, as property, and he directed is it sufficient to justify us in declaring a fact that those taken unlawfully from a foreigner in direct contradiction to such an official dec. should be restored.

laration. It is not evidence that could be reIn the case of The Antelope, 10 Wheaton, ceived according to the established admiralty 119, the decision in the case of The Louis is practice. Seamen (1 Peters, Ad. Dec. 211) recognized, and the same principle was fully on board of a vessel cannot be witnesses for and completely acted upon. It was there con- one another in matters where they have a ceded (10 Wheaton, 124), that possession on common interest, Again, the principal part board of a vessel was evidence of property. In of this evidence is not taken under oath, the case of Johnson v. Tompkins, i Baldwin, That of Dr. Madden, which is mainly relied 577, it was held that, even where it was a ques- upon, is chiefly hearsay; and is contradicted, tion of freedom, or slavery, the same rules of in some of its most essential particulars, by evidence prevailed as in other cases relative to that of other witnesses. the right of property. In the case of Choat v. Would this court be justified, on evidence Wright, 2 Devereux, 289, a sale of a slave ac- such as this, in setting aside the admitted cercompanied by delivery is valid, though there tificate of the Governor-General? Would such be no bill of sale. And it is well settled that evidence in one of our own courts be deemed a title to them is vested by the statute of adequate to set aside a judicial proceeding, or limitations, as in other cases of property. 5 an act of a public functionary done in the due Cranch, 358, 361; 11 Wheaton, 361.

exercise of his office! How, then, can it be ad. If, then, the same law exists in regard to equate to such an end, before the tribunals of property in slaves as in other things; and if a foreign country, when they pass upon the in. documentary evidence, from the highest au- ternal municipal acts of another government; thority of the country where the property be- and when the endeavor is made to set them longed, accompanied with possession, is pro- aside in a matter relating to their own propduced, it follows that the title to the owner- erty and people! ship of this property is as complete as is re- III. But admit this evidence to be compequired by law.

tent and sufficient; admit these negroes were But it is said that this evidence is insuffi- brought into Cuba a few weeks before the clent, because it is in point of fact fraudulent certificate was given; still, were they not slaves, and untrue. The ground of this assertion is, ' under the Spanish law! It is not denied that


347') negroes imported from *Africa into the United States. The court directed their Cuba might be slaves. If they are not, it is delivery, partly to the consul of Spain, and on account of some special law or decree. Has partly to the United States. It is thus settled such a law been produced in the present case ? that the public functionaries are entitled to The first document produced is the Treaty intervene in such cases, on behalf of the citi. with England of 23 September, 1817. But zens of their countries. In the present one, that has no such effect. It promises, indeed, the Spanish minister did so intervene by apthat Spain will take into consideration the plying to the United States to adopt, on his means of preventing the slave trade, and it behalf, the necessary proceedings; and, upon points out those means, so far as the trade his doing so, Ruiz and Montez withdrew their on the coast of Africa is concerned. But it separate claims. The United States, on their carefully limits the ascertainment of any in part, acted as the treaty required. The execu. fringement to special tribunals; attive is their agent in all such transactions, Sierra Leone, and the other at Havana. The and on him devolved the obligation to see this next is the decree of December, 1817, which au- property restored entire, if due proof concern. thorizes negroes, brought in against the treaty, ing it was made. The form of proceeding was to "be declared free." The Treaty of 28th already established by precedent and by law. June, 1835, which is next adduced, is confined The course adopted was exactly that pursued in entirely to the slave trade on the coast of the case of M'Fadden v. The Exchange, 7 Africa, or the voyage from there. Now, it is Cranch, 116, where a vessel was libeled in a evident that none of these documents show that port of the United States. Being a publio these negroes were free in Cuba. They had vessel of a foreign sovereign, which the gove not been “declared free” by any competent tri-ernment was bound to protect, they intervened bunal. Even had they been taken actually on exactly in the same way. The libel was dig. board of a vessel engaged in the slave trade, missed, and the vessel restored to the custody they must have been adjudicated upon at one of the public officers of France. of the two special courts, and nowhere else. It is, therefore, equally clear, that the UnitCan this court, then, undertake to decide this ed States, in this instance, has pursued the question of property, when it has not even been course required by the laws of nations; and it decided by the Spanish courts, and make such the court are satisfied, on the first point, that decision in the face of the certificate of the there is due proof concerning the property, highest funtionary of the island ?

then it ought to be delivered entire, so that it It is submitted, then, that if this court does may be restored to the Spanish owners. If go behind the certificate of the Governor-Gen- this be so, the court below has erred, because eral, and look into the fact whether or not it has not decreed any part of the prop- [*549 these persons were slaves on the 18th June, erty to be delivered entire, except the boy an. 1839, yet there is no sufficient evidence on tonio. From the vessel and cargo, it has de which they could adjudge it to be untrue. If ducted the salvage, diminishing them by that this be so, the proof concerning the property amount; and the negroes it has entirely reis sufficient to bring the case within the in- fused to direct to be delivered. tention and provisions of the treaty.

Mr. Baldwin, for the defendants in error: The next question is, did the United States In preparing to address this honorable court legally intervene to obtain the decree of the on the questions arising upon this record, in court for the restoration of the property, in behalf of the humble Africans whom I repreorder that it might be delivered to the Spanish sent-contending, as they are, for freedom and owners, according to the stipulations of the for life, with two powerful governments ar. treaty! They did; because the property of rayed against them—it has been to me a source foreigners, thus brought under the cognizance of high gratification, in this unequal contest, of the courts, is, of right, deliverable to the that those questions will be heard and decided public funtionaries of the government to which by a tribunal not only elevated far above the such foreigners belong; because those function influence of executive power and popular prej. aries have required the interposition of the udice, but, from its very constitution, exempt United States on their behalf; and because the from liability to those imputations to which 548*) United States were authorized "on that a court, less happily constituted, or composed request to interpose, pursuant to their treaty only of members from one section of the Union, obligations.

might, however unjustly, be exposed. That the property of foreigners, under such This case is not only one of deep interest in circumstances, may be delivered to the public itself, as affecting the destiny of the unfortu. functionaries, is so clearly established, by the nate Africans, whom I represent, but it in. decisions of this court, that it is unnecessary to volves considerations deeply affecting our nadiscuss the point. In the case (2 Mason, 411, tional character in the eyes of the whole 412, 463) of La Jeune Eugenie, there was a civilized world, as well as questions of the libel of the vessel, as in this case, and a claim power on the part of the government of the interposed by the French consul, and also by United States, which are regarded with anxiety the owners themselves. The court there di- and alarm by a large portion of our citizens. rected the delivery of the property to the pub. It presents, for the first time, the question lic functionary. In that of The Divina Pas- whether that government, which was estab. tora, 4 Wheat. 52, the Spanish consul inter. lished for the promotion of justice, which was posed. In that of The Antelope, 10 Wheat. 68, founded on the great principles of the Revolu. There were claims interposed, very much as in tion, as proclaimed in the Declaration of Inthis case, by the captain as captor, and by dependence, can, consistently with the genius the vice-consuls of Spain and Portugal, for of our institutions, become a party to proceedcitizens of their respective countries; and by'ings for the enslavement of human beinge cast


upon our shores, and found in the condition of the institution of slavery. It recognizs it as freemen within the territorial limits of a free existing in regard to persons held to service and sovereign State.

by the laws of the States which tolerate it; and In the remarks I shall have occasion to make, contains a compact between the States, obliging It will be my design to appeal to no sectional them to respect the rights acquired under the prejudices, and to assume no position in which slave laws of other States, in the cases specified I shall not hope to be sustained by intelligent in the Constitution. But it imposes no duty, minds from the south as well as from the north. and confers no power on the government of the Although I am in favor of the broadest liberty United States to act in regard to it. So far as of inquiry and discussion-happily secured by the compact extends, the courts of the United our Constitution to every citizen, subject only States, whether sitting in a free State or a to his individual responsibility to the laws for slave State, will give effect to it. Beyond that, its abuse; I have ever been of the opinion that all persons within the limits of a State are en550*] the exercise of that liberty by "citizens titled to the protection of its laws. of one State, in regard to the institutions of an- If these Africans have been taken from the other, should always be guided by discretion, possession of their Spanish claimants, and and tempered with kindness.

wrongfully brought into the United States by Mr. Baldwin here proceeded to state all the our citizens, a question would have been prefacts of the case, and the proceedings in the sented similar to that which existed in the case district and circuit courts, in support of the of The Antelope. But when men have come motion to dismiss the appeal. As no decision here voluntarily, without any wrong on the was given by the court on the motion, this part part of the government or citizens of the United of the argument is, necessarily, omitted. States, in withdrawing them from the juris

Mr. Baldwin continued: If the government diction of the Spanish laws, why should this of the United States could appear in any case government be required to become active in as the representative of foreigners claiming their restoration? They appear here as freeproperty in the Court of Admiralty, it has no They are in the State where they are right to appear in their behalf to aid them in presumed to be free. They stand before our the recovery of fugitive slaves, even when dom-courts on equal ground with their claimants; iciled in the country from which they escaped: and when the courts, after an impartial hearmuch less the recent victims of the African ing with all parties in interest before them, slave trade, who have sought an asylum in one have pronounced them free, it is neither the of the free States of the Union, without any duty nor the right of the executive of the Unitwrongful act on our part, or for which, as in ed States to interfere with the decision. the case of The Antelope, we are in any way The question of the surrender of the fugitive responsible.

slaves to a foreign claimant, if the right exists The recently imported Africans of the Ami- at all, is left to the comity of the States, which stad, if they were ever slaves, which is denied, tolerate slavery. The government of the Unit. were in the actual condition of freedom when ed States has nothing to do with it. In the let. they came within the jurisdictional limits of ter of instructions addressed by Mr. Adams the State of New York. They came there with when Secretary of State, to Messrs. Gallatin out any wrongful act on the part of any officer and Rush, dated November 2, 1818, in relation or citizen of the United States. They were in a to a proposed arrangement with Great Britain, State where, not only no law existed to make for a more active co-operation in the suppres. them slaves, but where, by an express statute, sion of the slave trade, he assigns as a reason all persons, except fugitives, etc., from a sister for *rejecting the proposition for a (552 State, are declared to be free. They were un- mixed commission, "that the disposal of the der the protection of the laws of a State, which negroes found on board the slave-trading vesin the language of the Supreme Court, in the sels, which might be condemned by the sentence case of Miln v. The City of New York, 11 Pet. of the mixed courts, cannot be carried into ef: ers, 139, "has the same undeniable and unlimit.fect by the United States." "The conditions of ed jurisdiction over all persons and things with the blacks being in this Union regulated by the in its territorial limits, as any foreign nation, municipal laws of the separate States, the gopwhen that jurisdiction is not surrendered or re: ernment of the United States can either guar. strained by the Constitution of the United antee their liberty in the States where they States."

could only be received as slaves, nor control The American people have never imposed it them in the States where they would be recas a duty of the government of the United ognized as free.” Doc. 48, H. Řep. 2 sess. 16th States to become actors in an attempt to reduce Cong. p. 15. to slavery men found in a State of freedom, by It may comport with the interest or feelings giving extraterritorial force to a foreign slave of a slave State to surrender a fugitive slave to law. Such a duty would not only be repugnant a foreigner, or at least to expel him from their to the feelings of a large portion of the citizens borders. But the people of New England, ex. of the United States, but it would be wholly cept so far as they are bound by the compact, inconsistent with the fundamental principles would cherish and protect him. To the extent of our government, and the purposes for which of the compact we acknowledge our obligation, 551*] *it was established, as well as with its and have passed laws for its fulfillment. Be. policy in prohibiting the slave trade and giving yond that our citizens would be unwilling to go. freedom to its victims.

A state has no power to surrender a fugitivi The recovery of slaves for their owners, criminal to a foreign government for punish whether foreign or domestic, is a matter with ment; because that is necessarily a matter o which the executive of the United States has national concern. The fugitive is demande

The Constitution confers upon the for a national purpose. But the question government no power to establish or legalize the surrender of fugitive slaves concerns ir 838

Peters 12

no concern.

dividuals merely. They are demanded as prop. I become free. In the case of Forbes *v. (*554 erty only, and for private purposes. It is Cochrane, 2 Barn. & Cress. 463, this question is therefore, a proper subject for the action of claborately discussed and settled by the Engthe State, and not of the national authorities. lish Court of King's Bench.

The surrender of neither is demandable of By the law of the State of New York, a forright, unless stipulated by treaty. See as to eign slave escaping into that State becomes the surrender of fugitive criminals, 2 Brock.free. And the courts of the United States, in Rep. 493; 2 Sumner, 482; 14 Peters, 540; Doc. acting upon the personal rights men found 199, H. R. 26 Cong. p. 53, 70; 10 Amer. State within the jurisdiction of a free State, are Pap. 151, 153, 433; 3 Hall's Law Journ. 135. An bound to administer the laws as they would be overture was once made by the government of administered by the State courts, in all cases the United States to negotiate a treaty with in which the laws of the State do not conflict Great Britain for the mutual surrender of fugi. with the laws or obligations of the United tive slaves. But it was instantly repelled by States. The United States as a nation have the British government. It may well be doubt prohibited the slave trade as inhuman and pied whether such a stipulation is within the ratical, and they have no law authorizing the treaty-making power under the Constitution of enslaving of its victims. It is a maxim, to use the United States. “The power to make treat the words of an eminent English judge, in the ies," says Chief Justice Taney (14 Peters, 569), case of Forbes v. Cochrane, 2 Barn. & Cress. "is given in general terms,

and conse: “that which is called comitas inter communi. quently it was designed to include all those tates cannot prevail in any case where it viosubjects which in the ordinary intercourse of lates the law of our own country, the law of nations had usually been made subjects nature, or the law of God.” 9 Eng. C. L. R. 553*] *of negotiation and treaty; and which 149. And that the laws of a nation proprio are consistent with the nature of our institu- vigore, have no force beyond its own territories, tions, and the distribution of powers between except so far as it respects its own citizens, who the general and State governments." See owe it allegiance, is too familiarly settled to Holmes v. Jennison, 14 Peters, 569. But, how need the citation of authorities. See 9 Wheat. ever this may be, the attempt to introduce it is on 366; Apollon, 2 Mason, 151-158. The rules evidence that, unless provided for by treaty, on this subject adopted in the English Court the obligation to surrender was not deemed to of Admiralty are the same which prevail in exist.

their courts of common law, though they have We deny that Ruiz and Montez, Spanish sub- decided in the case of The Louis, 2 Dodson, 238 jects, had a right to call on any officer or court as the Supreme Court did in the case of The of the United States to use the force of the Antelope, 10 Wheaton, 66, that as the slave government, or the process of the law for the trade was not, at that time, prohibited by the purpose of again enslaving those who have thus law of nations, if a foreign slaver was cap. escaped from foreign slavery, and sought an | tured by an English ship, it was a wrongful asylum here. We deny that the seizure of act, which it would be the duty of the Court these persons by Lieutenant Gedney for such a of Admiralty to repair by restoring the posses. purpose was a legal or justifiable act.

sion. The principle of amoveas manus, adopted How would it be independently of the in these cases, has no application to the case of treaty between the United States and Spain- fugitives from slavery. upon the principles of our government, of the But it is claimed that if these Africans, common law, or of the law of nations? though “recently imported into Cuba,” were

If a foreign slave vessel, engaged in a traffic by the laws of Spain the property of Ruiz and which by our laws is denounced as inhuman Montez, the government of the United States and piratical, should be captured by the slaves is bound by the treaty to restore them; and while on her voyages from Africa to Cuba, and that, therefore, the intervention of the execu. they should succeed in reaching our shores, tive in these proceedings is proper for that pur. have the Constitution or laws of the United pose. It has already, it is believed, been shown States imposed upon our judges, our naval offi- that even if the case were within the treaty, cers, or our executive, the duty of seizing the the intervention of the executive as a party be. unhappy fugitives and delivering them up to fore the judicial tribunals was unnecessary and their oppressors ? Did the people of the United improper, *since the treaty provides [*555 States, whose government is based on the great for its own execution by the courts, on the apprinciples of the Revolution, proclaimed in the plication of the parties in interest. And such Declaration of Independence, confer upon the a resort is expressly provided in the twentieth federal, executive, or judicial tribunals, the article of the Treaty of 1794 with Great Brit. power of making our nation accessories to ain, and in the twenty-sixth article of the such atrocious violations of human right? Treaty of 1801 with the French Republic, both

Is there any principle of international law or of which are in other respects similar to the law of comity which requires it? Are our ninth article of the Spanish Treaty, on which courts bound, and if not, are they at liberty, to the Attorney-General has principally relied. give effect here to the slave trade laws of a for- The sixth article of the Spanish Treaty has eign nation, to laws affecting strangers, never received a judicial construction in the case of domiciled there, when, to give them such effect The Santissima Trinidad, ? Wheaton, 284, would be to violate the natural rights of men ? | where it was decided that the obligation as.

These questions are answered in the negative sumed is simply that of protecting belligerent by all the most approved writers on the laws vessels from capture within our jurisdiction. It of nations. 1 Burg. Confi. 741; Story Confl. can have no application therefore to a case like 92.

the present. By the law of France, the slaves of their The ninth article of that treaty provides colonies, immediately on their arrival in France, “that all ships and merchandise of what nat

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are soever, which shall be rescued out of the Judge Barbour, in giving the opinion of the hands of pirates or robbers, on the high seas, court, expressly declares, in reference to the shall be brought into some port of either State, power "to regulate commerce” conferred on and shall be delivered to the custody of the Congress by the Constitution, that "persons officers of that port, in order to be taken care are not the subjects of commerce." Judging of, and restored entire to the true proprietors, from the public sentiment which prevailed at as soon as due and sufficient proof shall be the time of the adoption of the Constitution, it made concerning the property thereof.". is probable that the first act of the government

To render this clause of the treaty applicable in the exercise of its power to regulate com to the case under consideration, it must be as- merce, would have been to prohibit the slave sumed that under the term "merchandise” the trade, if it had not been restrained until 1808 contracting parties intended to include slaves; from prohibiting the importation of such per. and that slaves, themselves the recent victims sons as any of the States, *then exist- [*557 of piracy, who, by a successful revolt, have ing, should think proper to admit. But could achieved their deliverance from slavery, on the Congress have passed an act authorizing the high seas, and have availed themselves of the importation of slaves as articles of commerce, means of escape of which they have thus ac. into any State in opposition to a law of the quired the possession, are to be deemed “pirates State prohibiting their introduction? If they and robbers," "from whose hands" such “mer could, they may now force slavery into every chandise has been rescued.”

State. For no State can prohibit the introdueIt is believed that such a construction of th tion of legitimate objects of foreign commerce words of the treaty is not in accordance with when authorized by Congress. the rules of interpretation which ought to gov. The United States must be regarded as comern our courts; and that when there is no spe- prehending free States as well as slave States: cial reference to human beings as property, States which do not recognize slaves as proper. who are not acknowledged as such by the law ty, as well as States which do so regard them. or comity of nations generally, but only by the When all speak as a nation, general expressions municipal laws of the particular nations which ought to be construed to mean what all undertolerate slavery, it cannot be presumed that the stand to be included in them; at all events, contracting parties intended to include them what may be included consistently with the law under the general term "merchandise.” As has of nature. already been remarked, it may well be doubted The ninth article of the Spanish Treaty was 556*] .whether such a stipulation would be copied from the sixteenth article of the treaty within the treaty-making power of the United with France, concluded in 1778, in the midst of States. It is to be remembered that the gov- the war of the Revolution, in which the great ernment of the United States is based on the principles of liberty proclaimed in the Declara. principles promulgated in the Declaration of tion of Independence were vindicated by our Independence by the Congress of 1776; "that fathers. all men are created equal; that they are en- By "merchandise rescued from pirates,” the dowed by their Creator with certain inalien contracting parties must have had in view able rights; that among these are life, liberty, property, which it would be the duty of the and the pursuit of happiness; and that to se public ships of the United States to rescue cure these rights the governments are insti. from its unlawful possessors. Because, if it is tuted."

taken from those who are rightfully in posses. The convention which formed the Federal sion, the capture would be wrongful, and it Constitution, though they recognized slavery I would be our duty to restore it. But is it a as existing in regard to persons held to labor | duty which our naval officers owe to a nation by the laws of the States which tolerated it, tolerating the slave trade to subdue for their were careful to exclude from that instrument kidnappers the revolted victims of their cruel. every expression that might be construed into an ty? Could the people of the United States, admission that there could be property in men. consistently with their principles as a nation, It appears by the report of the proceedings of bave ever consented to a treaty stipulation the convention (3 Madison Papers, 1428), that which would impose such a duty on our naval the first clause of section 9, article 1, which officers! A duty which would drive every citi. provides for the imposition of a tax or duty on zen of a free State from the service of his the importation of such persons as any of the country. Has our government, which has been States, then existing, might think proper to ad- 80 cautious as not to oblige itself to surrender mit, etc., “not exceeding ten dollars for each the most atro ous criminals, who have sought person," was adopted in its present form, in an asylum in the United States, bound itself, consequence of the opposition by Roger Sher under the term "merchandise," to seize and sur: man and James Madison to the clause as it render fugitive slaves ? was originally reported, on the ground "that it The subject of the delivery of fugitives was admitted that there could be property in men;" under consideration before and during the nean idea which Mr. Madison said "he thought gotiation of the treaty of San Lorenzo; and it wrong to admit in the Constitution.” The was purposely omitted in the treaty. Sec. 10 words reported by the committee, and stricken Wait's State Papers, 151, 433. Our treaties out on this objection, were: "a tax or duty may with Tunis and Algiers contain similar expres. be imposed on such migration or importation sions, in which both parties stipulate for the at a rate not exceeding the average of the du: *protection of the property of the sub- [*558 ties laid upon imports. The Constitution as it jects of each within the jurisdiction of the othnow stands will be searched in vain for an ex- The Algerine regarded his Spanish cappression recognizing human beings as merchan- tive as property; but was it ever supposed that dise or legitmate subjects of commerce. In the lif an Algerine corsair should be seized by the case of New York v. Miln, 11 Peters, 104, 136, captive slaves on board of her, it would be the


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