Washington, February 28th. 1809.
I have read and considered the inclosed papers. The subject they furnish is interesting to the cause of humanity. The questions presented are new and important. The American Government must feel an anxious solicitude, for the complete success of those laws, which have been wisely enacted, to abolish that deplorable species of commerce, the slave trade, and to preserve the liberties of a considerable portion of the human race.
England having adopted corresponding regulations on this subject, it must be a matter of great national importance to both countries, by mutual and reciprocal endeavours, to give complete effect to a system so consoling to humanity. [Until some diplomatic arrangement, by treaty, can be made to attain this desirable object, the special interference of each Government, so far as is practicable, and consistent with general principles will be necessary and proper, where cases occur. Each should, no doubt, embrace every fair opportunity, of rendering aid and assistance to the other, for the purpose of suppressing the traffic in human flesh.
Impressed with these sentiments, I adopt with cheerfulness, the recommendation of the eminent Counsel whose opinions have been taken on this subject. Their accurate knowledge, and long experience in the practice of the Courts of Admiralty, enable them to form a correct opinion of the course proper to be pursued to assert the right of the captives to their freedom.
My advice is, that instructions be forwarded to our Minister at London, directing him to interpose a claim on behalf of the United States to the vessel, as forfeited; and to request that the Africans may be set at liberty, as they would have been, in case an American Cruizer had captured either of those vessels, carrying slaves from one foreign Country or place to another. For this purpose Mr Pinkney should be furnished with the laws of the United States, relative to the slave trade, duly authenticated, and also with a copy of the opinion of Counsel taken by the African association.
It may not be improper to remark that I feel inclined to believe] my opinion in the present case is that no claim by an American to these Africans as slaves, could be supported in the face of our laws prohibiting this commerce. If no claim were interposed, within the period limited, after monition issued and served or returned, sentence of condemnation would pass of course. If a claim be preferred, they must be claimed as American property. The form of this instrument, and of the oath taken in support of it appear to prove, that the claimant must shew a right of property in them, as slaves; for prima facie, on general principle and agreeably to the laws of England, they are freemen. The burthen of proof therefore rests on the claimant. He must sustain his allegation by sufficient evidence.
It is true one nation takes no notice of the penal laws of another. Our Courts would not recognize or carry into effect any portion of the criminal code of foreign Countries. The various fines, penalties and forfeitures imposed by the acts of Congress relative to the slave trade could not be inflicted in England on the guilty parties. But in examining the right of property or title to these unhappy Africans as slaves set up by an American claimant, I should apprehend, if it appeared to the Court that no such right could exist, agreeably to our laws, they would dismiss the claim. In deciding questions of property and of contract, the laws of one Country frequently operate in another, on principles of comity, reason and necessity. It would seem singular if a Court were to Decree africans as slaves, to be the property of an American, when by the laws of his own Country they were absolutely free. Nay, when the American claimant so far from having any right to hold them in bondage, is subject on his return home, to severe penalties for the attempt to enslave them. The courts of the American states furnish many examples applicable to this case. Under the laws of Delaware and Maryland slaves imported into either state from any other for sale, become ipso facto freemen. If a person who by the laws of Maryland had become a freeman, in consequence of having been imported into that state from some other, were claimed as a slave in Delaware, the Court, on this ground would set him at liberty. I have known many cases of this kind. It may be said these are sister states. But they are independant in matters of jurisdiction the principles on which the decisions have taken place are perfectly correct and would apply to foreign nations. In the present instance the American claimant never could have any title to the africans as slaves. [But under the laws of Virginia for example, the masters right is complete. He undertakes to bring his slaves] suppose slaves brought from Virginia into Maryland for sale, and they escape into Delaware. Under the Maryland laws, by the act of importation, these slaves became freemen. The right of the Master was forfeited. The Courts of Delaware in examining the title to them as slaves will look at the fact and give effect to the law of Maryland, by restoring freedom to them.
If the claim be dismissed, because the trade is prohibited to Americans, by their own laws, who therefore can have no title, the natural consequence will be a sentence of condemnation. In this event, agreeably to the British statutes the Court of Admiralty would direct the africans to be bound out, as apprentices. This, it appears has been already done, and would of course be confirmed. [If they are set at liberty on the interposition of the American Government, they will be absolutely freemen to all intents and purposes; and cannot be bound out as servants, unless under the municipal laws of the Country where they happen to be, in the same manner as if they were white persons.]
I have the honor to be, with perfect respect & Esteem, Sir, your most Obt Sert.
C. A. Rodney
Atty. Genl. U.S.
DLC: Papers of Thomas Jefferson.