The Big Speech: Pope Francis to Congress, September 24, 2015

Mr. Vice President,

Mr. Speaker,

Honorable Members of Congress,

Dear Friends,

I am most grateful for your invitation to address this Joint Session of Congress in “the land of the free and the home of the brave”. I would like to think that the reason for this is that I too am a son of this great continent, from which we have all received so much and toward which we share a common responsibility.

Each son or daughter of a given country has a mission, a personal and social responsibility. Your own responsibility as members of Congress is to enable this country, by your legislative activity, to grow as a nation. You are the face of its people, their representatives. You are called to defend and preserve the dignity of your fellow citizens in the tireless and demanding pursuit of the common good, for this is the chief aim of all politics. A political society endures when it seeks, as a vocation, to satisfy common needs by stimulating the growth of all its members, especially those in situations of greater vulnerability or risk. Legislative activity is always based on care for the people. To this you have been invited, called and convened by those who elected you.

Yours is a work which makes me reflect in two ways on the figure of Moses. On the one hand, the patriarch and lawgiver of the people of Israel symbolizes the need of peoples to keep alive their sense of unity by means of just legislation. On the other, the figure of Moses leads us directly to God and thus to the transcendent dignity of the human being. Moses provides us with a good synthesis of your work: You are asked to protect, by means of the law, the image and likeness fashioned by God on every human face.

Today I would like not only to address you, but through you the entire people of the United States. Here, together with their representatives, I would like to take this opportunity to dialogue with the many thousands of men and women who strive each day to do an honest day’s work, to bring home their daily bread, to save money and –one step at a time – to build a better life for their families. These are men and women who are not concerned simply with paying their taxes, but in their own quiet way sustain the life of society. They generate solidarity by their actions, and they create organizations which offer a helping hand to those most in need.

I would also like to enter into dialogue with the many elderly persons who are a storehouse of wisdom forged by experience, and who seek in many ways, especially through volunteer work, to share their stories and their insights. I know that many of them are retired, but still active; they keep working to build up this land. I also want to dialogue with all those young people who are working to realize their great and noble aspirations, who are not led astray by facile proposals, and who face difficult situations, often as a result of immaturity on the part of many adults. I wish to dialogue with all of you, and I would like to do so through the historical memory of your people.

My visit takes place at a time when men and women of good will are marking the anniversaries of several great Americans. The complexities of history and the reality of human weakness notwithstanding, these men and women, for all their many differences and limitations, were able by hard work and self-sacrifice – some at the cost of their lives – to build a better future. They shaped fundamental values which will endure forever in the spirit of the American people. A people with this spirit can live through many crises, tensions and conflicts, while always finding the resources to move forward, and to do so with dignity. These men and women offer us a way of seeing and interpreting reality. In honoring their memory, we are inspired, even amid conflicts, and in the here and now of each day, to draw upon our deepest cultural reserves.

I would like to mention four of these Americans: Abraham Lincoln, Martin Luther King, Dorothy Day and Thomas Merton.

This year marks the 150th anniversary of the assassination of President Abraham Lincoln, the guardian of liberty, who labored tirelessly that “this nation, under God, (might) have a new birth of freedom.” Building a future of freedom requires love of the common good and cooperation in a spirit of subsidiarity and solidarity.

All of us are quite aware of, and deeply worried by, the disturbing social and political situation of the world today. Our world is increasingly a place of violent conflict, hatred and brutal atrocities, committed even in the name of God and of religion. We know that no religion is immune from forms of individual delusion or ideological extremism. This means that we must be especially attentive to every type of fundamentalism, whether religious or of any other kind. A delicate balance is required to combat violence perpetrated in the name of a religion, an ideology or an economic system, while also safeguarding religious freedom, intellectual freedom and individual freedoms. But there is another temptation which we must especially guard against: the simplistic reductionism which sees only good or evil; or, if you will, the righteous and sinners. The contemporary world, with its open wounds which affect so many of our brothers and sisters, demands that we confront every form of polarization which would divide it into these two camps. We know that in the attempt to be freed of the enemy without, we can be tempted to feed the enemy within. To imitate the hatred and violence of tyrants and murderers is the best way to take their place. That is something which you, as a people, reject.

Our response must instead be one of hope and healing, of peace and justice. We are asked to summon the courage and the intelligence to resolve today’s many geopolitical and economic crises. Even in the developed world, the effects of unjust structures and actions are all too apparent. Our efforts must aim at restoring hope, righting wrongs, maintaining commitments, and thus promoting the well-being of individuals and of peoples. We must move forward together, as one, in a renewed spirit of fraternity and solidarity, cooperating generously for the common good.

The challenges facing us today call for a renewal of that spirit of cooperation, which has accomplished so much good throughout the history of the United States. The complexity, the gravity and the urgency of these challenges demand that we pool our resources and talents, and resolve to support one another, with respect for our differences and our convictions of conscience.

In this land, the various religious denominations have greatly contributed to building and strengthening society. It is important that today, as in the past, the voice of faith continue to be heard, for it is a voice of fraternity and love, which tries to bring out the best in each person and in each society. Such cooperation is a powerful resource in the battle to eliminate new global forms of slavery, born of grave injustices which can be overcome only through new policies and new forms of social consensus.

Here I think of the political history of the United States, where democracy is deeply rooted in the mind of the American people. All political activity must serve and promote the good of the human person and be based on respect for his or her dignity. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness” (Declaration of Independence, 4 July 1776). If politics must truly be at the service of the human person, it follows that it cannot be a slave to the economy and finance. Politics is, instead, an expression of our compelling need to live as one, in order to build as one the greatest common good: that of a community which sacrifices particular interests in order to share, in justice and peace, its goods, its interests, its social life. I do not underestimate the difficulty that this involves, but I encourage you in this effort.

Here too I think of the march which Martin Luther King led from Selma to Montgomery fifty years ago as part of the campaign to fulfill his “dream” of full civil and political rights for African Americans. That dream continues to inspire us all. I am happy that America continues to be, for many, a land of “dreams”. Dreams which lead to action, to participation, to commitment. Dreams which awaken what is deepest and truest in the life of a people.

In recent centuries, millions of people came to this land to pursue their dream of building a future in freedom. We, the people of this continent, are not fearful of foreigners, because most of us were once foreigners. I say this to you as the son of immigrants, knowing that so many of you are also descended from immigrants. Tragically, the rights of those who were here long before us were not always respected. For those peoples and their nations, from the heart of American democracy, I wish to reaffirm my highest esteem and appreciation. Those first contacts were often turbulent and violent, but it is difficult to judge the past by the criteria of the present. Nonetheless, when the stranger in our midst appeals to us, we must not repeat the sins and the errors of the past. We must resolve now to live as nobly and as justly as possible, as we educate new generations not to turn their back on our “neighbors” and everything around us. Building a nation calls us to recognize that we must constantly relate to others, rejecting a mindset of hostility in order to adopt one of reciprocal subsidiarity, in a constant effort to do our best. I am confident that we can do this.

Our world is facing a refugee crisis of a magnitude not seen since the Second World War. This presents us with great challenges and many hard decisions. On this continent, too, thousands of persons are led to travel north in search of a better life for themselves and for their loved ones, in search of greater opportunities. Is this not what we want for our own children? We must not be taken aback by their numbers, but rather view them as persons, seeing their faces and listening to their stories, trying to respond as best we can to their situation. To respond in a way which is always humane, just and fraternal. We need to avoid a common temptation nowadays: to discard whatever proves troublesome. Let us remember the Golden Rule: “Do unto others as you would have them do unto you” (Mt 7:12).

This Rule points us in a clear direction. Let us treat others with the same passion and compassion with which we want to be treated. Let us seek for others the same possibilities which we seek for ourselves. Let us help others to grow, as we would like to be helped ourselves. In a word, if we want security, let us give security; if we want life, let us give life; if we want opportunities, let us provide opportunities. The yardstick we use for others will be the yardstick which time will use for us. The Golden Rule also reminds us of our responsibility to protect and defend human life at every stage of its development.

This conviction has led me, from the beginning of my ministry, to advocate at different levels for the global abolition of the death penalty. I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes. Recently my brother bishops here in the United States renewed their call for the abolition of the death penalty. Not only do I support them, but I also offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation.

In these times when social concerns are so important, I cannot fail to mention the Servant of God Dorothy Day, who founded the Catholic Worker Movement. Her social activism, her passion for justice and for the cause of the oppressed, were inspired by the Gospel, her faith, and the example of the saints.

How much progress has been made in this area in so many parts of the world! How much has been done in these first years of the third millennium to raise people out of extreme poverty! I know that you share my conviction that much more still needs to be done, and that in times of crisis and economic hardship a spirit of global solidarity must not be lost. At the same time I would encourage you to keep in mind all those people around us who are trapped in a cycle of poverty. They too need to be given hope. The fight against poverty and hunger must be fought constantly and on many fronts, especially in its causes. I know that many Americans today, as in the past, are working to deal with this problem.

It goes without saying that part of this great effort is the creation and distribution of wealth. The right use of natural resources, the proper application of technology and the harnessing of the spirit of enterprise are essential elements of an economy which seeks to be modern, inclusive and sustainable. “Business is a noble vocation, directed to producing wealth and improving the world. It can be a fruitful source of prosperity for the area in which it operates, especially if it sees the creation of jobs as an essential part of its service to the common good” (Laudato Si’, 129). This common good also includes the earth, a central theme of the encyclical which I recently wrote in order to “enter into dialogue with all people about our common home” (ibid., 3). “We need a conversation which includes everyone, since the environmental challenge we are undergoing, and its human roots, concern and affect us all” (ibid., 14).

In Laudato Si’, I call for a courageous and responsible effort to “redirect our steps” (ibid., 61), and to avert the most serious effects of the environmental deterioration caused by human activity. I am convinced that we can make a difference and I have no doubt that the United States – and this Congress – have an important role to play. Now is the time for courageous actions and strategies, aimed at implementing a “culture of care” (ibid., 231) and “an integrated approach to combating poverty, restoring dignity to the excluded, and at the same time protecting nature” (ibid., 139). “We have the freedom needed to limit and direct technology” (ibid., 112); “to devise intelligent ways of... developing and limiting our power” (ibid., 78); and to put technology “at the service of another type of progress, one which is healthier, more human, more social, more integral” (ibid., 112). In this regard, I am confident that America’s outstanding academic and research institutions can make a vital contribution in the years ahead.

A century ago, at the beginning of the Great War, which Pope Benedict XV termed a “pointless slaughter”, another notable American was born: the Cistercian monk Thomas Merton. He remains a source of spiritual inspiration and a guide for many people. In his autobiography he wrote: “I came into the world. Free by nature, in the image of God, I was nevertheless the prisoner of my own violence and my own selfishness, in the image of the world into which I was born. That world was the picture of Hell, full of men like myself, loving God, and yet hating him; born to love him, living instead in fear of hopeless self-contradictory hungers”. Merton was above all a man of prayer, a thinker who challenged the certitudes of his time and opened new horizons for souls and for the Church. He was also a man of dialogue, a promoter of peace between peoples and religions.

From this perspective of dialogue, I would like to recognize the efforts made in recent months to help overcome historic differences linked to painful episodes of the past. It is my duty to build bridges and to help all men and women, in any way possible, to do the same. When countries which have been at odds resume the path of dialogue – a dialogue which may have been interrupted for the most legitimate of reasons – new opportunities open up for all. This has required, and requires, courage and daring, which is not the same as irresponsibility. A good political leader is one who, with the interests of all in mind, seizes the moment in a spirit of openness and pragmatism. A good political leader always opts to initiate processes rather than possessing spaces (cf. Evangelii Gaudium, 222-223).

Being at the service of dialogue and peace also means being truly determined to minimize and, in the long term, to end the many armed conflicts throughout our world. Here we have to ask ourselves: Why are deadly weapons being sold to those who plan to inflict untold suffering on individuals and society? Sadly, the answer, as we all know, is simply for money: money that is drenched in blood, often innocent blood. In the face of this shameful and culpable silence, it is our duty to confront the problem and to stop the arms trade.

Three sons and a daughter of this land, four individuals and four dreams: Lincoln, liberty; Martin Luther King, liberty in plurality and non-exclusion; Dorothy Day, social justice and the rights of persons; and Thomas Merton, the capacity for dialogue and openness to God.

Four representatives of the American people.

I will end my visit to your country in Philadelphia, where I will take part in the World Meeting of Families. It is my wish that throughout my visit the family should be a recurrent theme. How essential the family has been to the building of this country! And how worthy it remains of our support and encouragement! Yet I cannot hide my concern for the family, which is threatened, perhaps as never before, from within and without. Fundamental relationships are being called into question, as is the very basis of marriage and the family. I can only reiterate the importance and, above all, the richness and the beauty of family life.

In particular, I would like to call attention to those family members who are the most vulnerable, the young. For many of them, a future filled with countless possibilities beckons, yet so many others seem disoriented and aimless, trapped in a hopeless maze of violence, abuse and despair. Their problems are our problems. We cannot avoid them. We need to face them together, to talk about them and to seek effective solutions rather than getting bogged down in discussions. At the risk of oversimplifying, we might say that we live in a culture which pressures young people not to start a family, because they lack possibilities for the future. Yet this same culture presents others with so many options that they too are dissuaded from starting a family.

A nation can be considered great when it defends liberty as Lincoln did, when it fosters a culture which enables people to “dream” of full rights for all their brothers and sisters, as Martin Luther King sought to do; when it strives for justice and the cause of the oppressed, as Dorothy Day did by her tireless work, the fruit of a faith which becomes dialogue and sows peace in the contemplative style of Thomas Merton.

In these remarks I have sought to present some of the richness of your cultural heritage, of the spirit of the American people. It is my desire that this spirit continue to develop and grow, so that as many young people as possible can inherit and dwell in a land which has inspired so many people to dream.

God bless America!

Read more here: http://www.sunherald.com/2015/09/24/6431313/text-of-pope-francis-address-to.html#storylink=cpy

Lex Anteinternet: Is it smokey in here?

Well, this story just keeps changing.

Lex Anteinternet: Is it smokey in here?: I ran this item last week, at the time that the Casper City Council reinstated a complete ban on smoking in public buildings, following...

The City Council reversed itself, and decided to keep the ban, and thereby to send this question to the voters in the next sixty days or so.

The question presented will actually be the reverse of the one that the petition had sought to present, more or less.  Now a ban is, once again, in place, and the question will be whether or not the voters will remove it.  Or, I wonder, perhaps modify it.

This has certainly seen some odd twists and turns since the Court found that the city acted improperly in regards to the petition. The city reinstated the ban, and then the council voted to repeal the ban.  Now the council has decided to keep the ban (with one commissioner absent from the special meeting).  Some might be critical of these changes in opinion, but I'm not.  After all a deliberative body is supposed to deliberate, and that appears to be what they've been doing.

Jeep

I've owned Jeeps twice.

 

My first car, a 1958 M38A1 Army Jeep.  In the words of Iris Dement, "it turned over once, but never went far."*

My very first vehicle was a Jeep.  I bought it for $500 with money I had earned from a summer job.  I was 15 at the time, and not old enough to actually drive, but I still had it when I turned 16.  

The engine was a mess, in need of rebuilding or replacement, and as you can see, the prior owner had hit a tree with it.  As the engine was so worn out, it burned nearly as much oil as gasoline, and I sold it when I was 16 and bought a Ford F100 to replace it.

My second Jeep was a 1946 CJ2A, the very first model of civilian Jeep.  I kept it for awhile, but ultimately when my son was small, I sold it too.  The CJ2A, particularly ones made in the first couple of years of production, was nearly unchanged from the World War Two Army 1/4 ton truck that gave rise to the species, and indeed, the model I had, had some parts commonality otherwise unique to the Army Jeeps of the Second World War.

Depiction of Jeep in use on Guadalcanal, bringing in a KIA.

Jeeps got their start in that role, as a military vehicle, a 1/4 ton truck, entering service just prior to World War Two.  Bantam, a now extinct motor vehicle manufacturer, gets a lot of credit for the basic design, and indeed the Bantam Jeep did enter U.S. and British service.

Bantam Jeep being serviced by Army mechanic. The Bantam was actually lighter than the Willys Jeep.

But it was Willys, with larger manufacturing capacity, that really gets credit for the design.  It was their design that became the Jeep, although Ford made a huge number of Jeeps during the Second World War as well.

Coast Guard patrol with Jeep.  The Coast Guard also had mounted patrols during the Second World War, acquiring horses and tack from the Army.

American and Australian troops with Jeep serving as a field ambulance.

Jeeps became synonymous with U.S. troops during World War Two.  Indeed, there's a story, probably just a fable, of a French sentry shooting a party of Germans who tried to pass themselves off as Americans, simply because the sentry knew that a walking party of men could not be Americans, they "came in Jeeps."  A story, probably, but one that reflected how common Jeeps were and how much they were admired by U.S. forces at the time.  It's commonly claimed by some that Jeeps replaced the horse in the U.S. Army, but that's only slightly true, and only in a very limited sense.  It might be more accurate to say that the Jeep replaced the mule and the horse in a limited role, but it was really the American 6x6 truck that did the heavy lifting of the war, and which was truly a revolutionary weapon.  

None the less, the fame of the Jeep was won, and after the war Jeeps went right into civilian production.  For a time, Willys was confused over what the market would be for the little (uncomfortable) car, and marketed to farmers and rural workers, who never really saw the utility of the vehicle over other options.  Indeed, for farmers and ranchers who needed a 4x4, it was really the Dodge Power Wagon that took off.  The market for Jeeps was with civilian outdoorsmen, who rapidly adopted it in spite of the fact that it's very small, quite uncomfortable, and actually, in its original form, a very dangerous vehicle prone to rolling.  Still, the light truck's 4x4 utility allowed sportsmen to go places all year around that earlier civilian cars and trucks simply did not. The back country, and certain seasons of the year, were suddenly opened up to them.  For that reason, Jeeps were an integral part of the Revolution In Rural Transportation we've otherwise written about.  You can't really keep a horse and a pack mule in your backyard in town, but you can keep a Jeep out on the driveway.

Not surprisingly, Willys (and its successor in the line, Kaiser) soon had a lot of competition in the field.  The British entered it nearly immediately with the Land Rover, a light 4x4 designed for the British army originally that's gone on to have a cult following, in spite of being expensive and, at least early on, prone to the faults of British vehicles.  Nissan entered the field with the Nissan Patrol, a vehicle featuring the British boxiness but already demonstrating the fine traits that Japanese vehicles would come to be known for. Toyota entered the field with its legendary Land Cruiser, the stretched version of which I once owned one of, and which was an absolutely great 4x4.  Indeed, their smaller Jeep sized vehicle, in my opinion, was the best in this vehicle class.   Ford even entered the field with the original Bronco.  Over time, even Suzuki would introduce its diminutive Samurai.

So, what's happened here to this class of vehicles anyway?

Recently, for reason that are hard to discern, I decided to start looking once again for a vehicle in this class.  I know their defects.  They are unstable compared to trucks, and they don't carry much either.  But there is something about them.  Last time I looked around there were a lot of options, and costs were reasonable for a used one. Well, not anymore.

I don't know if its the urbanized SUV that's taken over everything.  But whereas once a fellow looking for a Jeep like vehicle could look for Jeeps, Land Cruisers, Land Rovers, Samurais, Broncos and International Scouts, now you are down to Jeeps, the Toyota FJ Cruiser or the soon to be extinct Land Rover Defender.  The Defender is insanely expensive, but the Jeep and Cruiser sure aren't cheap.  Even used vehicles in this class now command a crazy price.  I'm actually amazed I see so many around, given that most people don't use them for what they are designed for, and they're so darned expensive.

________________________________________________________________________________

*From "Our Town".

Postscript.

I recently ran across a net article that posed the same question, "what's happened here to this class of vehicles", which came to the conclusion that the the Jeep occupies such a niche market, and it's the only game in town for Jeep, so nobody else bothers with it.

Well, maybe.

But I'm not completely buying that.  There were a lot of vehicles in this class at one time.  Now, there's just one in North America.  The Land Rover hasn't been imported for years, and Toyota is discontinuing the FJ Cruiser.  Indeed, the Land Rover Defender is in its last year of production.

Oddly enough, overseas there is some competition. There's the Defender, this year.  Mercedes makes a vehicle in this class, as I believe Steyr also does.  Toyota also might, for overseas sales. Even Ford does, in Brazil.

The fact that Ford offers something like its old Bronco, albeit in a product line it just bought, might help explain it.  Maybe there just aren't as many places requiring a rough and ready vehicle in a lot of places anymore, but Brazil probably has plenty.  On the other hand, a lot of heavy duty 4x4 trucks seem to be around.

It's a good thing, anyhow, for people who need something like a Jeep that at least its still offered.

I did find one, by the way, after I posted this item.  I've been using it for about a year now, adding those items to it I find handy as I've gone along.

Coming back to the past: Vince Crolla

Coming back to the past

An article on Vince Crolla, who took a different path than most law school graduates and is now the archivist at Casper College's Western History Center.

A very nice fellow, I met him when I gave a talk on my book up there.

I'd note that as archival material, old law books (those are in the CC collection), don't have much value any more, or at least that'd be my view. With everything on Westlaw and Lexus, the need to maintain a library of case books, which is what those are, has pretty much vanished.

If I could do whatever I want. . .

which I cannot, I'd be sort of a nomadic hunter gatherer.

I suspect a lot of men actually feel that way. Which is probably why its a good thing that we can't really do that.  Not much else would really get done, and in a nation which is now as densely populated as ours, we can't really do that.  Or, rather, we can to some extent, but only to some extent.  And only some people, for that matter.  Most people are doomed to exist in the cubicle jungle until they retire to watch the game show network.

Be that as it may, that's what I'd do.  I'd start off in the Spring planting a big garden, which I used to in fact do.  My father did that before me.  I'd have it mostly all planted before Easter.

 Vegetable garden, Palmer Alaska.

When we did that, we usually had enough of some things to make it clear through to the nearly the next Spring, after we harvested in the Fall.  Potatoes and onions, for example, can keep fairly well. When my father did the garden, he did have some things that made it all year long, as he froze some things, like peas, but frankly I never liked the taste of home frozen peas much, and I never learned how to can anything at home and probably would not take it up.  When I was a kid, the few people who did something like that usually had products that made me a bit leery.

Starting about that time of year, you can start to fish around here too.  Indeed, you can start to fish earlier, so I suppose that should have been first, as you can ice fish.  When I was a little kid my father took me ice fishing occasionally, but only occasionally. Even though he was a big fisherman, he didn't ice fish much and at that time it seemed only the really fanatic ice fishermen had the equipment for it.  We simply chopped a hole in the ice with a shovel and axe.

Starting a couple of years ago, however, my daughter and I took it up, and we really like it. This past year we were skunked as the winter turned warm and the big lakes iced off really quickly, which is frankly disturbing.  But in a normal year, you can ice fish, so I guess I'd start here with that.

 

Yep, that's me.  Ice fishing a couple of years ago, photo by my daughter.  And yes, I know that hat is huge. And yes, it's Russian, a gift from a coworker who'd gone to Russia.

Anyhow, by Spring you can fish the streams and rivers, which I'd do.

Spring also sees Spring Bear Season, and I usually get a license, although I never get a bear.  I don't have the patience for baiting a bear, and instead usually sort of stumble around the woods, if I go bear hunting, or otherwise just have a license in case I stumble upon a bear.

Now, and I suppose somewhat relevant given the entire flap over "Cecil", the Zimbabwean lion, if I got a bear, I'd have it packed to eat.  I'm told it tastes like pork but having never eaten bear, I can't say if that's correct.  But that's what I'd do, should I ever get one.

I have a better chance of getting a turkey, and I usually get a Spring Turkey license as well, although the past few years I haven't seen a turkey feather during turkey season.  I see them all the time otherwise, but not during the season.  An Easter turkey sounds good to me.

Otherwise I'd fish and tend my garden. And when warm enough, I'd take up camp trailer up to the high country a couple of days at a time, and fish there.

About July 15, I'd tow that camper up to Alaska for the salmon run, and I'd fish that.  I'd go for halibut too, if I could make it affordable. I'd even think of getting a skiff if I could think of a way to keep it or tow it economically.  Nomads have to make things work economically.  An Alaskan sport fisherman can take two halibut per year, and more salmon.  I'd pack them in my trailer and I imagine that I could rig up a small freezer to make sure nothing was wasted. About August 1, I'd start my slow way home, fishing in the Yukon and British Columbia, until I made it back.

Somebody would have to watch my garden in that interim, obviously.

The bird seasons here start on September 1, and the antelope season only shortly after that. Then there's deer and elk.  In other worlds a years worth of red meat to take between September 1 and late October. And I'd harvest the garden.

 

Hunting elk.

Waterfowl and rabbits finish out the hunting seasons, and rabbit now runs until March 1, which is definitely a winter month here.  But probably starting in January I'd spend some time repairing stuff, working in my shop, reading, and writing.

Not a very socially redeemable existence?  Perhaps not.

And not one that my wife would want to do either, I'm pretty sure.  Not only would she not want to be a nomad for part of the year in our camp trailer, she probably wouldn't want to be the substitute farmer in the summer, in part because she's been a real farmer, which I have not been.  There's no romance in farming, in her view.

And a small dream at that.  No achievement of great political victories.  No reformation of the world.  No generalship of warring armies. No taking the all time home run record in the major league.

And not even that stuff that I hear of people doing, or occasionally actually see them doing.  No setting up a volunteer legal clinic to help veterans, or the indigent.  No working at the law office until you simply can't.  No volunteering at the soup kitchen.  

And not even any career oriented ones.  No "winning the big case".  No being appointed to be the district court judge.  I've won the big case more than once, and I'll try more and hopefully win  more. But I've been there and done that, to where that's part of the whoop and wharf of my existence, not something a person dreams of doing as part of their daily existence.  And I've applied now three times for the district court slot, having been encouraged to do it twice by outsiders, and didn't receive it, so I've put that past my career expectations and that's okay really, as I'm awfully darned opinionated and not inclined to keep my opinions to myself.  Not that this means I'm going to head out of the office and get on the road.  Rather, however, like most lawyers who have practiced a decade or more, the thrill of litigation and of being a court combatant has been replaced by being something more akin to a human factors engineer, which is closer to what we really do.

And while I'm a writer, I don't have that "write the definitive work on the Punitive Expedition", or "write that great historical novel on the Punitive Expedition" (while such a novel is something I'm working on), listed here.  I'd keep writing, to be sure, but even at that, it'd be just part of what I'd do.

I suppose it all speaks ill of me really.

But then, while some of those things have kicked around in my head from time to time, as they do with everyone, I'm not going to get any of those done, but I do hunt and fish, etc., and perhaps at this point the small unachievable dreams mean more than the big ones.  Perhaps they always did.

Blog Mirror: ‘Half dead’: a town in rural Ireland

‘Half dead’: a town in rural Ireland

Blog Mirror, George F. Will criticizes Pope Francis' positions on economics and science.

As probably everyone knows, Pope Francis will be in the US this week that is bringing into national focus something that people were amazingly able to ignore earlier, that being his social positions on economics and science.

Frankly, while I tend towards thinking people have missed the point on his economic analysis, which trends towards classic Distributism in my view, and have also missed much of what he said on environmental issues, and therefore I think the Pope should be listed to on this matters, a column by George F. Will raises some interesting points that are worth listening to.  Will tends to be precise and analytical, rather than politically dogmatic on these matters, which is what makes him such an interesting read on topics of this type.

Taking another look at "The Antelope", and what that might mean for us today

 American slave with heavily scarred back.  In 1825 the United States Supreme Court decided that slavery was against the natural law.

A United States Supreme Court case, theoretically good precedent under in general, but on a topic that's obviously been addressed by Constitutional Amendment and hence the basic problem presented is now contrary to statutory law, is provided by The Antelope.  Slavery, thankfully, and far too late, was made illegal by amendment to the United States Constitution, so whatever The Antelope says about the legality of that abomination is no longer the law. But the case's other points, about the existence of natural law, and potentially the state's relation to it, remain potentially valid.  Should they?

It raises some interesting questions for us today, is this era of much poorer jurisprudence (see last week's item where Judge Posner is quoted on the poor quality of legal education and of the refugee status of law professors in some instances).

First, consider The Antelope.
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The Antelope
23 U.S. (10 Wheat.) 66 (1825)

APPEAL FROM THE CIRCUIT
COURT OF GEORGIA

 Syllabus

The African slave trade is contrary to the law of nature, but is not prohibited by the positive law of nations.

Although the slave trade is now prohibited by the laws of most civilized nations, it may stall 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 that other country be violated or the proceeding be authorized by treaty, the act of capture is not in that case unlawful.
It seems that in case of such a seizure, possession of Africans is not a sufficient evidence 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 decreed without specific proof of the individual proprietary interest. 

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 Colombia, sailing under a Venezuelan commission, 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, 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 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; the 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 who 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 alternative 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.

The court dismissed the libel and claim of John Smith. It 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. 

No evidence was offered to show which of the Africans were taken from the American vessel and which from the Spanish and Portuguese, 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 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.

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court, and after stating the case proceeded as follows: 

In prosecuting this appeal, the United States asserts no property in itself. It appears in the character of guardian or next friend of these Africans, who are brought, without any act of their own, into the bosom of our country, insist on their right to freedom, and submit their claim to the laws of the land and to the tribunals of the nation. 

The Consuls of Spain and Portugal, respectively, demand these Africans as slaves, who have, in the regular course of legitimate commerce, been acquired as property by the subjects of their respective sovereigns and claim their restitution under the laws of the United States. 

In examining claims of this momentous importance -- claims in which the sacred rights of liberty and of property come in conflict with each other, which have drawn from the bar a degree of talent and of eloquence worthy of the questions that have been discussed -- this Court must not yield to feelings which might seduce it from the path of duty, and must obey the mandate of the law. 

That the course of opinion on the slave trade should be unsettled ought to excite no surprise. The Christian and civilized nations of the world with whom we have most intercourse have all been engaged in it. However abhorrent this traffic may be to a mind whose original feelings are not blunted by familiarity with the practice, it has been sanctioned in modern times by the laws of all nations who possess distant colonies, each of whom has engaged in it as a common commercial business which no other could rightfully interrupt. It has claimed all the sanction which could be derived from long usage and general acquiescence. That trade could not be considered as contrary to the law of nations which was authorized and protected by the laws of all commercial nations, the right to carry on which was claimed by each and allowed by each. 

The course of unexamined opinion which was founded on this inveterate usage received its first check in America, and as soon as these states acquired the right of self-government, the traffic was forbidden by most of them. In the beginning of this century, several humane and enlightened individuals of Great Britain devoted themselves to the cause of the Africans, and by frequent appeals to the nation, in which the enormity of this commerce was unveiled and exposed to the public eye, the general sentiment was at length roused against it and the feelings of justice and humanity, regaining their long lost ascendancy, prevailed so far in the British Parliament as to obtain an act for its abolition. The utmost efforts of the British government, as well as of that of the United States, have since been assiduously employed in its suppression. It has been denounced by both in terms of great severity and those concerned in it are subjected to the heaviest penalties which law can inflict. In addition to these measures operating on their own people, they have used all their influence to bring other nations into the same system, and to interdict this trade by the consent of all. 

Public sentiment has in both countries kept pace with the measures of government, and the opinion is extensively if not universally entertained that this unnatural traffic ought to be suppressed. While its illegality is asserted by some governments but not admitted by all, while the detestation in which it is held is growing daily, and even those nations who tolerate it in fact almost disavow their own conduct and rather connive at, than legalize, the acts of their subjects, it is not wonderful that public feeling should march somewhat in advance of strict law, and that opposite opinions should be entertained on the precise cases in which our own laws may control and limit the practice of others. Indeed, we ought not to be surprised if, on this novel series of cases, even courts of justice should in some instances have carried the principle of suppression further than a more deliberate consideration of the subject would justify.  

The Amedie, 1 Acton 240, which was an American vessel employed in the African trade, was captured by a British cruiser and condemned in the Vice Admiralty Court of Tortola.An appeal was prayed, and Sir William Grant, in delivering the opinion of the court, said that, the trade being then declared unjust and unlawful by Great Britain, The Fortuna, "a claimant could have no right, upon principles of universal law, to claim restitution in a prize court of human beings carried as his slaves. He must show some right that has been violated by the capture, some property of which he has been dispossessed and to which he ought to be restored. In this case, the laws of the claimant's country allow of no right of property such as he claims. There can therefore be no right of restitution. The consequence is that the judgment must be affirmed." 1 Dodson 81, was condemned on the authority of The Amedie, and the same principle was again affirmed.

The Diana, 1 Dodson 95, was a Swedish vessel captured with a cargo of slaves by a British cruiser and condemned in the Court of Vice Admiralty at Sierra Leone. This sentence was reversed on appeal, and Sir William Scott, in pronouncing the sentence of reversal, said "The condemnation also took place on a principle which this Court cannot in any manner recognize, inasmuch as the sentence affirms 'that the slave trade, from motives of humanity, hath been abolished by most civilized nations and is not at the present time legally authorized by any.' This appears to me to be an assertion by no means sustainable." 

The ship and cargo were restored on the principle that the trade was allowed by the laws of Sweden.

The principle common to these cases is that the legality of the capture of a vessel engaged in the slave trade depends on the law of the country to which the vessel belongs. If that law gives its sanction to the trade, restitution will be decreed; if that law prohibits it, the vessel and cargo will be condemned as good prize. 

This whole subject came on afterwards to be considered in The Louis, 2 Dodson 238. The opinion of Sir William Scott in that case demonstrates the attention he had bestowed upon it and gives full assurance that it may be considered as settling the law in the British courts of admiralty as far as it goes. 

The Louis was a French vessel, captured on a slaving voyage before she had purchased any slaves, brought into Sierra Leone, and condemned by the Vice Admiralty court at that place. On an appeal to the Court of Admiralty in England, the sentence was reversed. 

In the very full and elaborate opinion given on this case, Sir William Scott in explicit terms lays down the broad principle that the right of search is confined to a state of war. It is a right, strictly belligerent in its character, which can never be exercised by a nation at peace except against professed pirates, who are the enemies of the human race. The act of trading in slaves, however detestable, was not, he said, "the act of freebooters, enemies of the human race, renouncing every country and ravaging every country in its coasts and vessels indiscriminately." It was not piracy.

He also said that this trade could not be pronounced contrary to the law of nations. "A court, in the administration of law, cannot attribute criminality to an act where the law imputes none. It must look to the legal standard of morality, and upon a question of this nature that standard must be found in the law of nations as fixed and evidenced by general and ancient and admitted practice by treaties and by the general tenor of the laws and ordinances and the formal transactions of civilized states, and, looking to those authorities, he found a difficulty in maintaining that the transaction was legally criminal." 

The right of visitation and search being strictly a belligerent right, and the slave trade being neither piratical nor contrary to the law of nations, the principle is asserted and maintained with great strength of reasoning that it cannot be exercised on the vessels of a foreign power unless permitted by treaty. France had refused to assent to the insertion of such an article in her treaty with Great Britain, and consequently the right could not be exercised on the high seas by a British cruiser on a French vessel.
"It is pressed as a difficulty," says the judge,
"what is to be done if a French ship laden with slaves is brought in. I answer without hesitation, restore the possession which has been unlawfully devested; rescind the illegal act done by your own subject, and leave the foreigner to the justice of his own country."
This reasoning goes far in support of the proposition that in the British courts of admiralty, the vessel even of a nation which had forbidden the slave trade, but had not conceded the right of search, must, if wrongfully brought in, be restored to the original owner. But the judge goes further and shows that no evidence existed to prove that France had by law forbidden that trade. Consequently, for this reason as well as for that previously assigned, the sentence of condemnation was reversed and restitution awarded.
In the United States, different opinions have been entertained in the different circuits and districts, and the subject is now, for the first time, before this Court. 

The question whether the slave trade is prohibited by the law of nations has been seriously propounded, and both the affirmative and negative of the proposition have been maintained with equal earnestness. 

That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labor is generally admitted, and that no other person can rightfully deprive him of those fruits and appropriate them against his will seems to be the necessary result of this admission. But from the earliest times, war has existed, and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of these was that the victor might enslave the vanquished. This, which was the usage of all, could not be pronounced repugnant to the law of nations, which is certainly to be tried by the test of general usage. That which has received the assent of all must be the law of all. 

Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent cannot be pronounced unlawful. 

Throughout Christendom, this harsh rule has been exploded, and war is no longer considered as giving a right to enslave captives. But this triumph of humanity has not been universal. The parties to the modern law of nations do not propagate their principles by force, and Africa has not yet adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves. Can those who have themselves renounced this law be permitted to participate in its effects by purchasing the beings who are its victims? 

Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution in those principles of action which are sanctioned by the usages, the national acts, and the general assent of that portion of the world of which he considers himself as a part and to whose law the appeal is made. If we resort to this standard as the test of international law, the question, as has already been observed, is decided in favor of the legality of the trade. Both Europe and America embarked in it, and for nearly two centuries it was carried on without opposition and without censure. A jurist could not say that a practice thus supported was illegal and that those engaged in it might be punished either personally or by deprivation of property. 

In this commerce, thus sanctioned by universal assent, every nation had an equal right to engage. How is this right to be lost? Each may renounce it for its own people, but can this renunciation affect others? 

No principle of general law is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which is vested in all by the consent of all can be devested only by consent, and this trade, in which all have participated, must remain lawful to those who cannot be induced to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations, and this traffic remains lawful to those whose governments have not forbidden it. 

If it is consistent with the law of nations, it cannot in itself be piracy. It can be made so only by statute, and the obligation of the statute cannot transcend the legislative power of the state which may enact it. 

If it be neither repugnant to the law of nations nor piracy, it is almost superfluous to say in this Court that the right of bringing in for adjudication in time of peace, even where the vessel belongs to a nation which has prohibited the trade,cannot exist. The courts of no country execute the penal laws of another, and the course of the American government on the subject of visitation and search would decide any case in which that right had been exercised by an American cruiser on the vessel of a foreign nation, not violating our municipal laws, against the captors. 

It follows that a foreign vessel engaged in the African slave trade, captured on the high seas in time of peace by an American cruiser and brought in for adjudication, would be restored. 

The general question being disposed of, it remains to examine the circumstances of the particular case. 

The Antelope, a vessel unquestionably belonging to Spanish subjects, was captured while receiving a cargo of Africans on the coast of Africa by the Arraganta, a privateer which was manned in Baltimore and is said to have been then under the flag of the Oriental republic. Some other vessels, said to be Portuguese, engaged in the same traffic, were previously plundered and the slaves taken from them as well as from another vessel then in the same port were put on board the Antelope, of which vessel the Arraganta took possession, landed her crew, and put on board a prize master and prize crew. Both vessels proceeded to the coast of Brazil, where the Arraganta was wrecked and her captain and crew either lost or made prisoners. 

The Antelope, whose name was changed to the General Ramirez after an ineffectual attempt to sell the Africans on board at Surinam, arrived off the coast of Florida and was hovering on that coast near that of the United States for several days. Supposing her to be a pirate or a vessel wishing to smuggle slaves into the United States, Captain Jackson, of the revenue cutter Dallas, went in quest of her, and finding her laden with slaves, commanded by officers who were citizens of the United States, with a crew who spoke English, brought her in for adjudication. 

She was libeled by the Vice Consuls of Spain and Portugal, each of whom claim that portion of the slaves which were conjectured to belong to the subjects of their respective sovereigns, which claims are opposed by the United States on behalf of the Africans.
In the argument, the question on whom the onus probandi is imposed has been considered as of great importance, and the testimony adduced by the parties has been critically examined. It is contended that the Antelope, having been wrongfully dispossessed of her slaves by American citizens and being now, together with her cargo, in the power of the United States, ought to be restored without further inquiry to those out of whose possession she was thus wrongfully taken. No proof of property, it is said, ought to be required. Possession is in such a case evidence of property. 

Conceding this as a general proposition, the counsel for the United States deny its application to this case. A distinction is taken between men, who are generally free, and goods, which are always property. Although with respect to the last possession may constitute the only proof of property which is demandable, something more is necessary where men are claimed. Some proof should be exhibited that the possession was legally acquired. A distinction has been also drawn between Africans unlawfully taken from the subjects of a foreign power by persons acting under the authority of the United States and Africans first captured by a belligerent privateer or by a pirate and then brought rightfully into the United States, under a reasonable apprehension that a violation of their laws was intended. Being rightfully in the possession of an American court, that court, it is contended, must be governed by the laws of its own country, and the condition of these Africans must depend on the laws of the United States, not on the laws of Spain and Portugal. 

Had the Arraganta been a regularly commissioned cruiser, which had committed no infraction of the neutrality of the United States, her capture of the Antelope must have been considered as lawful, and no question could have arisen respecting the rights of the original claimants. The question of prize or no prize belongs solely to the courts of the captor. But having violated the neutrality of the United States and having entered our ports not voluntarily, but under coercion, some difficulty exists respecting the extent of the obligation to restore, on the more proof of former possession, which is imposed on this government

If, as is charged in the libels of both the consuls as well as of the United States, she was a pirate hovering on the coast with intent to introduce slaves in violation of the laws of the United States, our treaty requires that property rescued from pirates shall be restored to the Spanish owner on his making proof of his property. 

Whether the General Ramirez, originally the Antelope, is to be considered as the prize of a commissioned belligerent ship of war unlawfully equipped in the United States, or as a pirate, it seems proper to make some inquiry into the title of the claimants.
In support of the Spanish claim, testimony is produced showing the documents under which the AntelopeArraganta. sailed from the Havana on the voyage on which she was captured; that she was owned by a Spanish house of trade in that place; that she was employed in the business of purchasing slaves, and had purchased and taken on board a considerable number when she was seized as prize by the  

Whether, on this proof, Africans brought into the United States under the various circumstances belonging to this case ought to be restored or not is a question on which much difficulty has been felt. It is unnecessary to state the reasons in support of the affirmative or negative answer to it, because the Court is divided on it, and consequently no principle is settled. So much of the decree of the circuit court as directs restitution to the Spanish claimant of the Africans found on board the Antelope when she was captured by the Arraganta is affirmed. 

There is some difficulty in ascertaining their number. The libel claims one hundred and fifty as belonging to Spanish subjects, and charges that one hundred or more of these were on board the Antelope. Grondona and Ximenes, Spanish officers of the Antelope before her capture, both depose positively to the number of one hundred and sixty-six. Some deduction, however, is to be made from the weight of Grondona's testimony, because, he says in one of his depositions that he did not count the slaves on the last day when some were brought on board, and adds that he had lost his papers and spoke from memory and from the information he had received from others of the crew after his arrival in the Havana. Such of the crew as were examined concur with Grondona and Ximenes as to numbers. 

The depositions of the Spanish witnesses on this point are opposed by those of John Smith, the Captain of the General Ramirez, and William Brunton, one of the crew of the Arraganta,Antelope. who was transferred to the  

John Smith deposes that ninety-three Africans were found on board the Antelope when captured who he believes to have been Spanish property. He also says, that one hundred and eighty-three were taken out of Portuguese vessels. 

William Brunton deposes that more slaves were taken out of the Portuguese ship than were in any other, and that ninety-odd were represented by the crew to have been on board the Antelope when she was captured. 

If to the positive testimony of these witnesses we add the inference to be drawn from the statement of the libel and the improbability that so large a number of Africans as are claimed could have been procured under the circumstances in which the Antelope was placed between the 13th, when she was liberated by the first pirate who seized her, and the 23d, when she was finally captured, we are rather disposed to think the weight of testimony is in favor of the smaller number. But supposing perfect equality in this respect, the decision ought, we think, to be against the claimant. 

Whatever doubts may attend the question whether the Spanish claimants are entitled to restitution of all the Africans taken out of their possession with the Antelope, we cannot doubt the propriety of demanding ample proof of the extent of that possession. Every legal principle which requires the plaintiff to prove his claim in any case applies with full force to this point, and no countervailing consideration exists. The onus probandi as to the number of Africans which were on board when the vessel was captured unquestionably lies on the Spanish libellants. Their proof is not satisfactory beyond ninety-three. The individuals who compose this number must be designated to the satisfaction of the circuit court.

We proceed next to consider the libel of the Vice-Consul of Portugal. It claims one hundred and thirty slaves or more, "all of whom, as the libellant is informed and believes," are the property of a subject or subjects of his Most Faithful Majesty, and although "the rightful owners of such slaves be not at this time individually and certainly known to the libellant, he hopes and expects soon to discover them." 

John Smith and William Brunton, whose depositions have already been noticed, both state that several Africans were taken out of Portuguese vessels, but neither of them states the means by which he ascertained the national character of the vessels they had plundered. It does not appear that their opinions were founded on any other fact than the flag under which the vessels sailed. Grondona also states the plunder of a Portuguese vessel lying in the same port and engaged in the same traffic with the Antelope when she was captured, but his testimony is entirely destitute of all those circumstances which would enable us to say that he had any knowledge of the real character of the vessel other than was derived from her flag. The cause furnishes no testimony of any description, other than these general declarations, that the proprietors of the Africans now claimed by the Vice-Consul of Portugal were the subjects of his King; nor is there any allusion to the individuals to whom they belong. These vessels were plundered in March, 1820, and the libel was filed in August of the same year. From that time to this, a period of more than five years, no subject of the Crown of Portugal has appeared to assert his title to this property,; no individual has been designated as its probable owner. This inattention to a subject of so much real interest, this total disregard of a valuable property, is so contrary to the common course of human action as to justify serious suspicion that the real owner dares not avow himself. 

That Americans and others who cannot use the flag of their own nation carry on this criminal and inhuman traffic under the flags of other countries is a fact of such general notoriety that courts of admiralty may act upon it. It cannot be necessary to take particular depositions to prove a fact which is matter of general and public history. This long and otherwise 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. 

An attempt has been made to supply this defect of testimony by adducing a letter from the secretary to whose department the foreign relations of Portugal are supposed to be entrusted suggesting the means of transporting to Portugal those slaves which may be in the possession of the vice-consul as the property of his fellow subjects. Allow to this document all the effect which can be claimed for it and it can do no more than supply the want of an express power from the owners of the slaves to receive them. It cannot be considered as ascertaining the owners or as proving their property. 

The difficulty, then, is not diminished by this paper. These Africans still remain unclaimed by the owner or by any person professing to know the owner. They are rightfully taken from American citizens and placed in possession of the law. No property whatever in them is shown. It is said that possession, in a case of this description, is equivalent to property. Could this be conceded, who had the possession? From whom were they taken by the Arraganta? It is not alleged that they are the property of the Crown, but of some individual. Who is that individual? No such person is shown to exist, and his existence after such a lapse of time cannot be presumed. 

The libel, which claims them for persons entirely unknown, alleges a state of things which is prima facie evidence of an intent to violate the laws of the United States by the commission of an act which according to those laws entitles these men to freedom. Nothing whatever can interpose to arrest the course of the law but the title of the real proprietor. No such title appears, and every presumption is against its existence.
We think, then, that all the Africans now in possession of the Marshal for the District of Georgia and under the control of the circuit court of the United States for that district which were brought in with the Antelope, otherwise called the General Ramirez, except those which may be designated as the property of the Spanish claimants ought to be delivered up to the United States to be disposed of according to law. So much of the sentence of the circuit court as is contrary to this opinion is to be 

Reversed, and the residue affirmed.

DECREE. This cause came on to be heard, &c., on consideration whereof this Court is of opinion that there is error in so much of the sentence and decree of the said circuit court as directs the restitution to the Spanish claimant of the Africans in the proceedings mentioned in the ratio which one hundred and sixty-six bears to the whole number of those which remained alive at the time of pronouncing the said decree, and also in so much thereof as directs restitution to the Portuguese claimant, and that so much of the said decree ought to be reversed, and it is hereby reversed and annulled. And this Court, proceeding to give such decree as the said circuit court ought to have given, doth DIRECT and ORDER that the restitution to be made to the Spanish claimant, shall be according to the ratio which ninety-three (instead of one hundred and sixty-six) bears to the whole number, comprehending as well those originally on board the Antelope as those which were put on board that vessel by the Captain of the Arraganta. After making the apportionment according to this ratio and deducting from the number the ratable loss which must fall on the slaves to which the Spanish claimants were originally entitled, the
residue of the said ninety-three are to be delivered to the Spanish claimant on the terms in the said decree mentioned, and all the remaining Africans are to be delivered to the United States, to be disposed of according to law, and the said decree of the said circuit court is in all things not contrary to this decree affirmed.

John Marshall, author of the opinion in The Antelope.  He's regarded, justifiably, as one of the greatest of American jurists, but did he get this right?

So, there you have the sad story of the ship, The Antelope, and its sad charges.  Africans carried away from home against their will and condemned to live out the balance of their lives as slaves, far from their homes and their desires.

And a legal case with surprising language, and to some extent, a surprising result. What does the Supreme Court decision tell us?

Well, it tells us the following.

1.  In 1825, a full forty years prior to the end of the Civil War, a war we fought principally over slavery (yes, I know, states rights, etc., well that isn't what the war was about. . . it was about human bondage) the United States Supreme Court acknowledged the slavery was:

A.  Contrary to Natural Law, and;

B.  Immoral but;

C.  Legal under the laws of men.

Note what's significant in that.   At that point in time, when the knowledge of lawyers included not only the law, but the origin and nature of law, the Supreme Court acknowledged a natural law.  Not some mushy evolving standard of law based upon some vague octogenarian's discerning of public intent, but a real basis in nature.

Only slightly less significant, the Justices found that the laws of nations could and in this case did override that natural law.

 German defendants at the Nuremberg trials, each of whom could claim that their actions, no matter how heinous, were authorized by law.  Their claims were rejected.

Let's leap forward to 1945. And the Nuremberg Trials.

Now a person may ask why, but again, there's a good reason. We're now dealing with natural law again, but on a national scale.

During the Nuremberg trials, the victorious Allies tried individuals who had served the Axis powers for various crimes against humanity.  The fact that these crimes were legal under the laws of those nations did not a provide a defense. That is, a person could not claim, in their defense (although they frequently tried to do so, that "I was ordered to do it". That defense was actually a legally sufficient one up until that time, for the most part, and squares well with the holding of The Antelope.  Yes, mass murder and imprisonment of millions based on their race or behavior is immoral, but it wasn't illegal under the laws of the state.  It was illegal, rather, as it failed to comport with the principals of Natural Law.

So, starting in 1945, we reversed the view held by the United States Supreme Court in 1825. That is, we started saying that Natural Law is the highest law, where as the Supreme Court had said that Natural Law is the highest law, but a Court could not base a decision upon it in the face of contrary statutory law.

So what does that have to do with anything today?

How do you feel? 

Was the U.S. Supreme Court wrong in 1825?  It could have held that a Natural Law was supreme against all other law, and a law contrary to nature was no law at all.  Politically, that would have been problematic in 1825 to say the least, as it would have feed the slaves throughout the country, and the Supreme Court likely knew that it couldn't effect that in 1825.  Still, as a moral and legal proposition, it could have said that.

The Allies did say that in 1945.  Where they right?  Is a person bound by the Natural Law above all other law?

It's an interesting and relevant question today.  In Obegefell Justice Kennedy and his fellows ignored any discussion of Natural Law, even though its clearly relevant to the topic they had at hand, and the most frequently discussed aspect of the topic that decision addresses in serious circles of debate.  Indeed, he didn't really  hold to anything much than a mushy standards of "we know where things are headed". But that doesn't make the Natural Law question go away, and now it places it in the forefront.

Has the Nuremberg Defense, "following orders", now been adopted by the American judiciary as a mandate.  I.e., you must follow orders, as we've decreed, even if you have serious Natural Law objections?  And if so, where does that lead us in the future. Will future Syrian butchers be able to avoid trial, as "my state ordered me to do this?". 

Was The Antelope wrongly decided, and for those with moral convictions on the topic did the decision resolve them because it was a legal decision?

"The Lord Is My Shepherd", painting of an American slave.

Interesting questions, directly impacting real people's lives. At the end of the day, the subject of The Antelope was people. And the decision essentially overrode an acknowledged superior body of law in favor of what the Court seemed to acknowledge was an immoral national law. The Court went for statutory law over a great Natural Law.  In 1945, we decided that a greater Natural Law bound all others.  What position do we hold now?

Blog Mirror: Ten Common Misconceptions about the Constitution.

The ABA writes about ten common misconceptions about the Constitution.

Monday at the Bar: Courthouses of the West: US Bankruptcy Court, Northern District of Oklahoma...

Courthouses of the West: US Bankruptcy Court, Northern District of Oklahoma...

 

Sunday Morning Scene: Churches of the West: Holy Name Roman Catholic Church, Sheridan Wyoming

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