SUPREME COURT OF THE UNITED STATES. 1825 L. U. S. 62), power is given to the courts of mode of proceeding, where lands, for instance, the United States to issue a writ of scire facias, habeas corpus, and all other writs not was different from that which would be neceswere liable to be taken and sold on execution, specially provided for by statute, which may sary where they were only liable to be extendbe necessary for the exercise of their respective ed under an elegit. It was therefore necessary jurisdictions, and agreeable to the principles to adopt the modes of process, if the process and usages of law. That executions are among itself was adopted. This act was temporary; the writs hereby authorized to be issued, can- and continued from time to time, until [*58 not admit of a doubt; they are indispensably the permanent law of the 8th of May, 1792 (2 necessary for the beneficial exercise of the ju- L. U. S. 299), was passed; the second section risdiction of the courts; and in subsequent of which, so far as relates to the second ques56*] parts of the act, *this writ is specifically tion, declares that the forms of writs, execunamed as one to be used, and the control which tions and other process, except their style, and the court, in certain cases, is authorized to ex- the forms and modes of proceeding in suits of ercise over it, is pointed out. The precise limi- common law, in the courts of the United tations and qualifications of this power, under States, shall be the same as are now used in the terms, agreeable to the principles and us- the said courts, in pursuance of the act enages of law, is not, perhaps, so obvious. doubtless embraces writs sanctioned by the courts of the United States." It titled, "An act to regulate processes in the principles and usages of the common law. But then goes on to prescribe the rules and prinit would be too limited a construction, as it re- ciples by which the courts of equity, and of This section spects writs of execution, to restrict it to such admiralty and maritime jurisdiction, were to only as were authorized by the common law. be governed; and then follows this provision: It was well known to Congress, that there were "Subject, however, to such alterations and addiin use in the state courts, writs of execution, tions, as the said courts respectively shall, in other than such as were conformable to the their discretion, deem expedient, or to such usages of the common law. And it is reason- regulations as the Supreme Court of the United able to conclude that such were intended to pe States shall think proper, from time to time, by included under the general description of writs rule, to prescribe to any circuit or district agreeable to the principles and usages of law. court concerning the same." If it had been intended to restrict the power to doubt that the power here given to the courts common law writs, such limitation would prob- extends to all the subjects in the preceding There can be no ably have been imposed in terms. was intended to authorize writs of execution forms of process, and modes of proceeding in That it parts of the section; and embraces as well the sanctioned by the principles and usages of the suits of common law, as those of equity, and of state laws, is strongly corroborated by the admiralty and maritime jurisdiction. It will circumstance that the process act, passed a be perceived, that this act presupposes that, in few days thereafter, adopts such as the only point of practice, the several courts of the writs of execution to be used. Can it be doubt- United States had carried into execution the ed, but that, under the power here given in the provisions of the act of 1789; and had adopted judiciary act, the courts of the United States, the forms of process, and modes of proceeding in those states where lands were liable to be thereon, which were then usual, and allowed taken and sold on execution, would have been in the Supreme Courts of the respective [*59 authorized to issue a like process? But under states; and it ratifies and continues such practhis act, the courts are not restricted to the tice, and extends it to all the proceedings in 57*] kind of process used in the state *courts, suits. or bound in any respect to conform themselves one better calculated to meet the views and This course was no doubt adopted as thereto. This latitude of discretion was not wishes of the several states, than for Condeemed expedient to be left with the courts; gress to have framed an entire system for the and the act of the 29th of September, 1789 (2 courts of the United States, varying from that L. U. S. 72), entitled, "An act to regulate of the state courts. They had in view, howprocesses in the courts of the United States," ever, state systems then in actual operation, modifies and limits this power. material to the present inquiry, it declares that and expediency of adopting which, they would So far as is well known and understood, and the propriety the forms of writs and executions, and modes well judge of and determine. of process, in the circuit and district courts, in striction in the act, now used and allowed in suits at common law, shall be the same in each the Supreme Courts of the several states. Hence the restate respectively, as are now used or allowed There is no part of the act, however, that looks in the Supreme Courts of the same. form of the writ contains substantially directive provision, the various changes that might like adopting prospectively, by positive legislations as to what is to be done under it. Whether thereafter be made in the state courts. mesne or final process, it is on its face so shaped and moulded as to be adapted to the purposes for which it is intended. This act, therefore, adopts the effect as well as the form of the state processes; and as these were various in the different states, it goes further, and adopts the modes of process, which must include everything necessary to a compliance with the command of the writ. The effect and operation of executions must, of course, vary in the different states, according to the different forms which were used and allowed. 266 The The Had such been the intention of Congress, the phraseology of the act would doubtless have been adapted to that purpose. It was, nevertheless, foreseen, that changes probably would be made courts, which might be fit and proper to be in the processes and proceedings in the state adopted in the courts of the United States; and, not choosing to sanction such changes absolute ly in anticipation, power is given to the courts over the subject, with a view, no doubt, so to alter and mould their processes and proceedings, as to conform to those of the state courts 1825 59 court, in the case of Wayman v. Southard, the as nearly as might be, consistently with the ends of justice. This authority must have been given to the courts for some substantial and 60*] beneficial purpose. If the alterations are limited to mere form, without varying the effect and operation of the process, it would be useless. The power here given, in order to answer the object in view, cannot be restricted to form as contradistinguished from substance, but must be understood as vesting in the courts authority so to frame, mould and shape the process, as to adapt it to the purpose intended. The general policy of all the laws on this subject is very apparent. It was intended to adopt, and conform to, the state process and proceedings, as the general rule, but under such guards and checks as might be necessary to insure the due exercise of the powers of the courts of the They have authority, thereUnited States. fore, from time to time to alter the process, in such manner as they shall deem expedient, and likewise to make additions thereto, which necessarily implies a power to enlarge the effect The exercise of and operation of the process. To limit the operation of an execution now, this power is, to be sure, left in the discretion of the court; but the object and purpose for to that which it would have had in the year which it is given is so plainly marked, that it 1789, would open a door to many and great inis hardly to be presumed the courts would omit conveniences, which Congress seems to have carrying it into execution, without some sub-foreseen and to have guarded against, by givstantial reason. And, the better to insure this, authority is given to this court, to prescribe to the circuit and district courts such regulations And on the subject as it shall think proper. should this trust not be duly and discreetly exercised by the courts, it is at all times in the power of Congress to correct the evil by more 61*] specific legislation. But so long as the courts of the United States shall make such alterations or additions in their process of execution as only to reach property made subject to execution from the state courts, there would seem to be no just ground for complaint. When, therefore, the law of Kentucky made land subject to executions, it was carrying into effect the spirit and object of the act of Congress, for the Circuit Court so to alter and add to the form of its execution, as to authorize the taking and selling the debtor's land. ing ample powers to the courts, so to mould their process as to meet whatever changes might take place. And if any doubt existed whether the act of 1792 vests such power in the courts, or with respect to its constitutionality, *the practical construction heretofore [*63 given to it ought to have great weight in determining both questions. It is understood that it has been the general, if not the universal practice of the courts of the United States, so to alter their executions as to authorize a levy upon whatever property is made subject to the like process from the state courts; and under such alterations, many sales of land have no doubt been made, which might be disturbed if a contrary construction should be adopted. That such alteration, both in the form and effect of executions, has been made by the Circuit Court for the district of Kentucky, is cerIt is said, however, that this is the exercise tain from the case now before us, as, in 1789, If the court, then, had the power so tc of legislative power, which could not be dele- land in Kentucky could not be sold on execugated by Congress to the courts of justice. tion. But this objection cannot be sustained. There frame and mould the execution in this case, as is no doubt that Congress might have legislated to extend to lands, the only remaining inquiry more specifically on the subject, and declared is, whether the proceedings on the execution what property should be subject to executions could be arrested and controlled by the state from the courts of the United States. But it law. And this question would seem to be put The law of Kentucky, as has does not follow, that because Congress might at rest by the decision in the case of Wayman have done this, they necessarily must do it, and v. Southard. cannot commit the power to the courts of jus- been already observed, does not in terms protice. Congress might regulate the whole prac- fess to exercise any such authority; and if it tice of the courts, if it was deemed expedient did, it must be unavailing. An officer of the so to do; but this power is vested in the courts; United States cannot, in the discharge of his and it never has occurred to anyone that it duty, be governed and controlled by state laws, The any farther than such laws have been adopted was a delegation of legislative power. And he does not, in such power given to the courts over their process is and sanctioned by the legislative authority of States, no more than authorizing them to regulate and the United States. United of the under that direct the conduct of the marshal, in the ex- case, act under the authority of the state law, ecution of the process. It relates, therefore, to but the ministerial duty of the officer; and partakes which adopts such law. no more of legislative power than that discre62*] tionary authority intrusted to every. department of the government in a variety of cases. And, as is forcibly observed by the * An execution [*64 is the fruit and end of the suit, and is very aptly called the life of the law. The suit does not terminate with the judgment; and all proceedings on the execution, are proceedings in the 267 suit, and which are expressly, by the act of | States for the seventh circuit and district of Congress, put under the regulation and control Kentucky.1 of the court out of which it issues. It is a power incident to every court from which process issues, when delivered to the proper officer, to enforce upon such officer a compliance with his duty, and a due execution of the process, according to its command. But we are not left to rest upon any implied power of the court, for such authority over the officer. By the 7th section of the act of the 2d of March, 1793 (3 L. U. S. 367), it is declared that "it shall be lawful for the several courts of the United States, from time to time, as occasion may require, to make rules and orders for their respective courts, directing the returning of writs and processes, etc., and to regulate the practice of the said courts respectively, in such manner as shall be fit and necessary for the advancement of justice, and especially to the end to prevent delays in proceedings.' To permit the marshal, in this case, to be governed and controlled by the state law, is not only delaying, but may be entirely defeating the effect and operation of the execution, and would be inconsistent with the advancement of justice. Upon the whole, therefore, the opinion of this court is, that the Circuit Court had authority to alter the form of the process of exe65*] cution, so as to extend to real as well as personal property, when, by the laws of Kentucky, lands were made subject to the like process from the state courts; and that the act of the general assembly of Kentucky does not operate upon, and bind, and direct the mode in which the venditioni exponas should be enforced by the marshal, so as to forbid a sale of the land levied upon, unless it commanded threefourths of its value, according to the provisions of the said act; and that, of course, the return of the marshal is insufficient, and ought to be quashed. This renders it unnecessary to inquire into the constitutionality of the law of Kentucky. Certificate. This cause came on to be heard on the transcript, etc., and the points on which the judges of the Circuit Court of the United States for the seventh circuit and dis trict of Kentucky were divided in opinion, and which were, in pursuance of the act of Congress in that case made and provided, adjourned to this court, and was argued by counsel. On consideration whereof, this court is of opinion, that the act of the general assembly of Kentucky, referred to in the said questions, cannot operate upon, bind and direct the mode in which the said venditioni exponas should be enforced by the marshal, and forbid a sale of the land levied upon, unless it commanded three-fourths of its value when estimated according to the provisions of the said act; and that this opinion renders it unnecessary to decide whether the said act is, or is 66*] *not, repugnant to the constitution of the United States. All which is directed to be certified to the Circuit Court of the United 1. In the case of the Bank of the United States v. January, also certified from the Circuit Court of Kentucky, the process was a capias, to which the acts of 1789 and 1792 extend in express terms. This court, therefore, determined, that Congress must be understood to have adopted that process [Prize. Instance Court. Slave Trade.} THE ANTELOPE. The Vice-Consuls of Spain and Portugal, Libelants. nations. The African slave trade is contrary to the law of nature, but is not prohibited by the positive law of Although the slave trade is now prohibited by the laws of most civilized nations, it may still be lawfully carried on by the subjects of those nations who have not prohibited it by municipal acts or treaties. The slave trade is not piracy, unless made so by the treaties or statutes of the nation to whom the party belongs. The right of visitation and search does not exist in time of peace. A vessel engaged in the slave trade, even if prohibited by the laws of the country to which it belongs, cannot, for that cause alone, be seized on the high seas, and brought in for adjudication, in time of peace, in the courts of another country. But if the laws of the other country be violated, or the proceeding be authorized by treaty, the act of capture is not in that case unlawful. possession of Africans is not a sufficient evidence *It seems that in case of such a seizure, [*67 of property, and that the onus probandi is thrown upon the claimant, to show that the possession was lawfully acquired. Africans who are first captured by a belligerent privateer, fitted out in violation of our neutrality, or by a pirate, and then recaptured and brought into the ports of the United States, under a reasonable suspicion that a violation of the slave trade acts was intended, are not to be restored without full proof of the proprietary interest; for in such a case the capture is lawful. And whether, in such a case, restitution ought to be decreed at all, was a question on which the court was equally divided. Where the court is equally divided, the decree of the court below is of course affirmed, so far as the point of division goes. Although a consul may claim for subjects unknown of his nation, yet restitution cannot be de creed without specific proof of the individual proprietary interest. APPEAL from the Circuit Court of Georgia. These cases were allegations filed by the vice-consuls of Spain and Portugal, claiming certain Africans as the property of subjects of their nation. The material facts were as follows: A privateer, called the Columbia, sailing under a Venezuelan commision, entered the port of Baltimore in the year 1819; clandestinely shipped a crew of thirty or forty men; proceeded to sea, and hoisted the Artegan flag, assuming the name of the Arraganta, NOTE. Slave Trade.-Congress has the constitutional power to prohibit the foreign slave trade. U. S. v. Gould, 8 Am. Law Reg. 525. What constitutes a violation of the laws against the slave trade. The Plattsburg, post, 133: U. S. v. The Garome, 11 Pet. 73; The Caroline, 1 Brock. Marsh. 384; U. as one that was to issue permanently from the courts of the United States. whenever it was in use, at the epoch contemplated by those acts, as a state process. A certificate was directed accordingly. and prosecuted a voyage along the coast of Africa, her officers and the greater part of her crew being citizens of the United States. Off the coast of Africa she captured an American vessel, from Bristol, in Rhode Island, from which she took twenty-five Africans; she captured several Portuguese vessels, from which she also took Africans; and she captured a Spanish vessel, called the Antelope, in which 68] she also took a considerable number of Africans. The two vessels then sailed in company to the coast of Brazil, where the Arraganta was wrecked, and her master, Metcalf, and a great part of his crew, made prisoners; th rest of the crew, with the armament of the Arraganta, were transferred to the Antelope, which, thus armed, assumed the name of the General Ramirez, under the command of John Smith, a citizen of the United States; and on board this vessel were all the Africans which had been captured by the privateer in the course of her voyage. This vessel, thus freighted, was found hovering near the coast of the United States, by the revenue cutter Dallas, under the command of Captain Jackson, and finally brought into the port of Savannah for adjudication. The Africans, at the time of her capture, amounted to upwards of two hundred and eighty. On their arrival, the vessel, and the Africans, were libeled, and claimed by the Portuguese and Spanish vice-consuls reciprocally. They were also claimed by John Smith, as captured jure belli. They were claimed by the United States, as having been transported from foreign parts by American citizens, in contravention to the laws of the United States, and as entitled to their freedom by those laws, and by the law of nations. Captain Jackson, the master of the revenue cutter, filed an alter native claim for the bounty given by law, if the Africans should be adjudged to the United States; or to salvage, if the whole subject should be adjudged to the Portuguese and Spanish consuls. 69*] *The court dismissed the libel and claim of John Smith. They dismissed the claim of the United States, except as to that portion of the Africans which had been taken from the American vessel. The residue was divided between the Spanish and Portuguese claimants. the marshal, according to the law of the United States, as being the fair proportion of the twenty-five proved to have been taken from an American vessel. The Attorney-General for the appellants, stated that the cases of the respective allegations of the Spanish and Portuguese consuls, upon which distinct appeals had been taken, which had been separately docketed in this court, were so blended together, that it was thought most proper to bring on the hearing in both cases at the same time. Mr. Chief Justice Marshall stated that the appellants, in the argument of No. 12, might refer to the evidence in No. 13; they might invoke it into this cause, so far as it was necessary for their purpose, and the court would take notice of the facts which appeared [*70 in the other transcript; but that the two causes must come on separately, and in their order. But it has been thought most expedient to report the two arguments together. The reasons assigned in the appellants' case, for reversing the decrees of the court below were as follows: 1. That the possession of these Africans by the claimants, before the capture by the privateer, affords no presumption that they were their property; that they must show a law entitling them to hold them as property. 2. That if these Africans are to be considered as having been in a state of slavery, when in the Spanish and Portuguese vessels from which they were taken, and if the court shall consider itself bound to restore them to the condition from which they were taken, this can be done only by placing them in the hands of those who shall prove themselves to have been the owners; and that this purpose cannot be answered by restoring them to the consuls of Spain and Portugal. 3. That if some of these Africans were the property of the claimants, yet some were not; and failing to prove which were theirs, the decree is erroneous, in determining by lot a matter which the claimants were bound to establish by proof. was brought, with the persons on board, into the custody of the court, by an act of seizure, not only lawful, but meritorious towards the 1. The Spanish case as No. 12, and the Portuguese as No. 13. Mr. Key, for the appellants, argued that the facts of the case presented the question to be considered in a point of view, peculiarly favorNo evidence was offered to show which of able to the appellants. A piratical ves- [*71 the Africans were taken from the American sel was found hovering near our coast, apparvessel, and which from the Spanish and Por-ently meditating a violation of our laws. It tuguese; and the court below decreed that, as about one-third of them died, the loss should be averaged among these three different classes; and that sixteen should be designated, by lot, from the whole number, and delivered over to S. v. Libby, 1 Wood. & M. 221; U. S. v. Catherine, 3 Law Rep. 255; The Wanderer, 1 Sprague, 515; S. C. 13 Law Rep. N. S. 139: U. S. v. Gooding, 12 Wheat. 460; The Emily, 9 Wheat. 381; The Slav ers, 2 Wall. 383; U. S. v. LaCoste, 2 Mas. 129; U. S. v. Morris, 14 Pet. 464; The Alexander. 3 Mas. 175; U. S. v. Catherine, 2 Paine, 721; The Porpoise, 2 Curt. C. C. 307; U. S. v. Hann, 8 Am. Law Reg. 663; U. S. Isla de Cuba, 2 Sprague, 26: 9 Op. Att-Gen. 282; U. S. v. Westervelt, 5 Blatchf. 30; Strohm v. U. S. Taney. 413; Williamson v. Daniel, 12 Wheat. 568. The African slave trade is an offense against the municipal laws of most nations in Europe. Kent's Com. 191. 1 For a history of the legislation on this subject, see 1 Kent's Com. 192 to 200; Woolsey Int. Law, s. 146. The district courts have jurisdiction under slave trade acts to determine who are the actual captors under the law of Louisiana of March 13, 1818. The Josefa Segunda, post, 312. The African slave trade, abstractedly considered, is inconsistent with the law of nations; and a claim founded upon it may be repelled in any court where it is asserted, unless the trade be legalized by the nation to which the claimant belongs. U. S. v. La Jeune Eugenie, 2 Mas. 409. Slaves captured in time of war and brought into the United States, will not be condemned as prize, nor will the court consider them as prisoners of war; the disposition of them is matter of state in which it is not for the judiciary to determine. Almeida v. Certain Slaves, 5 Hall's Am. L. Journ. 459. claimants, since it rescued what they claim as probandi upon them to prove their birthright. their property, from the grasp of pirates. If Whatever may have once been the condition of the claimants had not interposed, the course of Africa, and of the African slave trade, the authe court would have been obvious. The ille- thentic information on this subject will show gal and piratical capture by our citizens, gave that it is now impossible to determine, by the them no rights; and even if it did, they in- fact of possession, whether the party has been stantly forfeited them under our laws, which lawfully acquired or not. There must be an they intended to violate. But the claimants overwhelming probability of the lawfulness of demand restitution of the Africans found on such acquisition, to raise such a presumption. board this vessel, alleging them to be their This is instanced by the different presumptions property, lawfully acquired on the coast of allowed in different parts of our own country, Africa, and piratically taken from them by the in respect to this description of persons. In Arraganta. This demand is resisted by the the southern states, there is the highest degree government of the United States, upon the of probability, from universal practice and wellground that the persons in question are not by known law, that such persons are slaves. But our laws to be considered as slaves, but as free in the northern states, the probability is just men. These laws the court must administer, the contrary, and the presumption is reversed. and not the laws of Spain. Our national pol- And in the present state of the slave trade, icy, perhaps our safety, requires that there Africans, in a slave ship on the high seas, are should be no increase of this species of popula- in no such circumstances as to raise a presumption within our territory. The acts of Congress tion that they are lawfully held in slavery. provide that, however brought here, they shall For if there be a permitted slave trade, there be set free, and sent back to their own native is also a prohibited slave trade; and the procountry. The Spanish and Portuguese claim-hibition is much more extensive than the perants demand them as their property. We repel mission. *The claimants must, conse- [*74 the claim, by asserting their right to liberty. The demand of restitution is inconsistent with our policy, as declared in our statutes and other 72*] *public acts.1 These declarations gave fair warning to those engaged in the slave trade, that though we did not intend to interfere with them on the high seas, yet, if their victims should come within the reach of our laws, we should protect them. These acts constitute a solemn pledge to all nations interested in the suppressions of this inhuman traffic, and to Africa herself, that if the objects of it should seek our protection, where they may lawfully receive it, within our territorial jurisdiction, and at the feet of our tribunals of justice, they should be entitled to that protection. Therefore, admitting the facts as alleged by the claimants, what they claim as justice in a matter of property, cannot be done to them, without disregarding our own policy, endangering our own safety, infringing our own laws, and violating the plighted faith of the country. Be quently, show something more than mere pos- But supposing they have a right to insist on restitution of their property, what proof ought to be required, and what proof do they give, of their proprietary interest? It is material, also, here to consider that those human beings, who are claimed as property, come into the jurisdiction of the court, not by any wrongful act of ours, but lawfully, providentially; and are to be treated just as if they were thrown upon our shore by a storm. The Spanish owners show, as proof of property, their previous possession; and the possessor of goods, it is said, is to be presumed the lawful owner. This is true as to The municipal law of Spain, then, is insuffigoods, because they have universally and nec- cient *to maintain the title set by the [*75 73*] essarily an *owner. But these are men, claimants. They are driven to the necessity of whom it cannot be affirmed that they have of invoking the aid of the law of nations, as universally and necessarily an owner. In some sanctioning their asserted right to property in particular and excepted cases, depending upon these human beings. But if the law of nations the local law and usage, they may be the sub-is silent upon this subject; if it neither sancjects of property and ownership; but by the tions nor forbids the traffic in African slaves; if law of nature all men are free. The presump- it is municipal law alone which determines in tion that even black men and Africans are slaves, is not a universal presumption. It would be manifestly unjust to throw the onus 1-Vide Appendix, Note I, a. what manner private property is acquired and lost, then the claimants have no law to stand upon in asserting their claim. Supposing, however, this idea not to be correct, it is incumbent on the claimants to show, positively, that the |