Dark Places of the Earth: The Voyage of the Slave Ship Antelope

Jonathan M. Bryant, “Dark Places of the Earth: The Voyage of the Slave Ship Antelope “. Liveright Publishing, 2015, 305 pp.

Those that read history are familiar with the 1857 Dred Scott Decision and the 1841 Amistad slave ship decision; but preceding both of these significant events is another, not so well known: i.e., the voyage of the slave ship Antelope in the 1820’s.  The Supreme Court case involving the Antelope set precedents leading to Dred Scott and the Civil War.

In 1820, the Spanish slave ship Antelope was spotted lingering off the coast of northern Florida.  Since the United States had outlawed its own participation in the international slave trade (not slavery, just the international movement and trade) more than a decade before, the ship's almost 300 African captives were considered illegal cargo under American laws. Of course, with slavery still a critical part of the American economy, it would eventually fall to the Supreme Court to determine whether or not these 300 chained blacks were slaves at all, and if so, what should be done with them.  Dark Places of the Earth vividly recounts the eight-year legal conflict that followed, during which time the Antelope's human cargo were mercilessly put to work on the plantations of Georgia, as their freedom remained in argument.

After much delay, the Supreme Court heard the case.   Francis Scott Key, author of "The Star Spangled Banner," represented the Antelope captives in a courtroom battle that identified the moral and legal implications of slavery for a generation. Four of the six justices who heard the case, including Chief Justice John Marshall, owned slaves. Despite this, Key insisted that "by the law of nature all men are free," and that the captives should by natural law be given their freedom. This argument was rejected. The court failed Key, the captives, and decades of American history, siding with the rights of property over liberty and setting the course of American jurisprudence on these issues for the next thirty-five years. The institution of slavery was given new legal cover, and another brick was laid on the road to the Civil War.  Dark Places of the Earth restores the Antelope to its rightful place as one of the most tragic, influential, and unjustly forgotten episodes in American legal history.  Yet, had the Court granted Key’s argument, it is likely that the newly formed Republic would have unraveled—just as it did forty some years later.

Pg. xv:  The slave trade was understood as being different from slavery.  It was a commercial practice, not a domestic institution, and so could be regulated and controlled by rational individuals.  By 1798, every American state had outlawed the international slave trade, though South Carolina reopened it in 1803.  In 1806 President Jefferson called upon the U’s Congress for a law prohibition the international slave trade at the earliest time allowed by the Constitution  The law was passed making it illegal for anyone to import slaves into the US after January 1, 1808.  (Great Britain banned slavery in 1807). 

Pg. xvii:  Most importantly for the case of the Antelope, another act of 1819 passed Congress which provided that captives brought into the US illegally would come under the authority of the president of the US.  The president would then arrange to return the captives to Africa.  The arrival of the Antelope tested that commitment.  

The conflict over the captives forced the Supreme Court to address a number of important questions.  Were the natural rights of liberty more important than the rights of property?  Was the Constitution a source of first principles for the American legal system, or simply a legal text providing only limited powers?  Most importantly, the case forced the Supreme Court to the very precipice on the issue of slavery.  If natural rights to liberty made the Antelope captives free, did natural rights make all slaves free?  (Note: whether or not the Constitution is a pro-slavery document is much debated among historians, but without question it is a pro-property document.)

Pg. 19:  During the fifteenth, sixteenth, and seventeenth centuries, privateering was established as a legitimate practice among Europeans.  By the eighteenth century, most European nations recognized the privateering commissions given by other nations during war.  Under a letter of marque, or commission, private vessels could attack and capture the vessels of a nation’s enemy.  (During the war of 1812, eleven hundred privateering commissions were issued by the US).  Privateers were privately owned vessels commissioned by their government to capture or destroy the state’s enemies, whereas piracy was raiding at sea without such a commission.  Pirates robbed vessels indiscriminately regardless of nationality and states of war.  Captured pirates were criminals to be hanged; captured privateers were prisoners of war.  This distinction, and the subsequent international war against piracy in the early eighteenth century, laid the foundations for the modern system of international law.

Pg. 33:  Britain’s campaign against the seaborne slave trade began as an outgrowth of the Napoleonic Wars.  Then, in 1794, the French Republic abolished the slave trade and slavery.  Suddenly slave trade abolition was deemed a dangerous republican and revolutionary idea in Britain.  Only in May 1802, when Napoleon restored slavery and the French slave trade, did the British abolitionists revive their campaign against slavery.  By 1808 the slave trade had become illegal for citizens of the US and Great Britain.

Pg. 54:  Where did the slaves come from?  More than a third were captured in war and another third or so were kidnapped by gangs of bandits.  The rest were enslaved as a result of debt or of convictions in judicial proceedings.  (It was Blacks selling Blacks with Europeans buying and then selling again).

Pg. 156:  In 1790, Georgia’s slave population had more than doubled that of 1773, exceeding 29,000.  By 1810, there were more than 105,000 slaves in the state.  By 1820, when the Antelope captives arrived, Georgia’s slave population had grown from 13,000 to 150,000 in less than fifty years. 

Pg. 211:  During the 1820s, there were far too many cases scheduled for the annual six-week term of the Supreme Court.  The term could not be extended because it was set by law.  The idea was to allow sufficient time for the justices to ride circuit twice a year, some in faraway places like Georgia.  After 1815, the Marshall Court decided about forty cases each year. 

Pg. 222:  John Macpherson Berrien, representing Spain, was one of the lawyers opposing the slave’s case from the Antelope.  The core of Berrien’s argument was simple: Law was not morality.  There was no discernible law of nations against the slave trade.  As slaves they were not persons, but property.  The Constitution protected property in slaves, and that protection had made the Constitution possible.  To undo the protection of property in slaves would not just contradict the Constitution but perhaps result in its dissolution.   

Pg. 291:  The Marshall Court’s Antelope decision made explicit several important principles.  First, that the written, positive laws on slavery superseded the natural rights of individuals.  Positive law establishing and regulating slavery made slaves property, and property had no rights.  It was not much of a stretch from this to Justice Roger B. Taney writing about black Africans in the 1857 Dred Scot decision:

            They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.  He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.

Addenda:

The Act Prohibiting Importation of Slaves of 1807 is a United States federal law that stated that no new slaves were permitted to be imported into the United States. It took effect in 1808, the earliest date permitted by the United States Constitution.