American Minute for March 3rd:

    American Minute with Bill Federer
IN GOD WE TRUST National Motto: Francis Scott Key's anthem & his fight to free slaves
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In 1820, a U.S. revenue cutter captured the slave ship Antelope off the coast of Florida with nearly 300 African slaves.

Francis Scott Key was the defense counsel for the Africans, many of whom were just young teenagers.

Key had come from a wealthy slave holding family in Maryland, but as with many leaders after the Revolution, his views evolved to advocating for an end of slavery.

Key fought to free the slaves of the Antelope, spending his own time and money in an expensive legal battle which dragged on for seven years.

Arguing their case before the Supreme Court in 1825, Francis Scott Key, as recorded by Henry S. Foote:

"... greatly surpassed the expectations of his most admiring friends ... Key closed with ... an electrifying picture of the horrors connected with the African slave trade."

Jonathan M. Bryant wrote in Dark Places of the Earth: The Voyage of the Slave Ship Antelope (2015):

"Most startling of all, Key argued ... that all men were created equal ...

If the United States had captured a ship full of white captives, Key asked, would not our courts assume them to be free? How could it be any different simply because the captives were black? ...

Slavery was a dangerously hot subject, but Francis Scott Key stepped deliberately into the fire."

Bryant continued:

"Key had unleashed all of his rhetorical weapons ... This was a case he believed in and had worked personally to bring before the Supreme Court.

The Antelope was a Spanish slave ship that had been captured by privateers and then seized by a United States Revenue Marine cutter off the coast of Florida ..."

Jonathan M. Bryant continued:

"Using clear precedent, poetic language, and appeals to morality, Francis Scott Key argued that the hundreds of African captives found aboard the Antelope should be returned to Africa and freedom. United States law demanded it, he said.

The law of nations demanded it, he said. Even the law of nature demanded it.

Key looked into the eyes of the six justices sitting for the case, four of whom were slave owners, and announced that 'by the law of nature, all men are free.'"

Considered one of its many shameful decisions, the Supreme Court sadly chose to define slaves as property.

Only a portion of the slaves were returned to Africa where they founded the colony of New Georgia in Liberia.

Key raised $11,000 to help the Africans.

In 1841, two years before his death, Francis Scott Key helped John Quincy Adams free 53 African slaves in the Amistad case.

During the War of 1812, Francis Scott Key wrote "The Star-Spangled Banner."

Though many are familiar with the first verse, the FOURTH VERSE had an enduring effect:

"O thus be it ever when free men shall stand,
Between their loved home and the war's desolation;
Blest with victory and peace, may the Heaven-rescued land,
Praise the Power that hath made and preserved us a nation!
Then conquer we must, when our cause it is just;
And this be our motto 'IN GOD IS OUR TRUST'!
And the Star Spangled Banner in triumph shall wave,
Over the land of the free and the home of the brave!"

Nine years earlier, Francis Scott Key had written a song to the same tune with similar words to celebrate the victory over Muslim Barbary Pirates, titled "When the Warrior Returns from the Battle Afar" ( Boston's Independent Chronicle, Dec. 30, 1805):

In conflict resistless each toil they endur'd
Till their foes shrunk dismay'd from the war's desolation:
And pale beamed the Crescent, its splendor obscur'd
By the light of the Star-Spangled Flag of our nation.
Where each flaming star gleamed a meteor of war,
And the turban'd head bowed to the terrible glare.
Then mixt with the olive the laurel shall wave
And form a bright wreath for the brow of the brave.

Key's "Star-Spangled Banner" stirred patriotism across America for centuries.

In an interview prior to singing the anthem "Star-Spangled Banner" on the world's largest stage of the 2019 Super Bowl, Gladys Knight, the Empress of Soul, stated (TMZ Sports; TheBlaze, 1/19/19):

"I am here today and on Sunday, Feb. 3, to give the anthem back its voice, to stand for that historic choice of words, the way it unites us when we hear it and to free it from the same prejudices and struggles I have fought long and hard for all my life, from walking back hallways, from marching with our social leaders, from using my voice for good ...

I have been in the forefront of this battle longer than most of those voicing their opinions to win the right to sing our country's anthem on a stage as large as the Super Bowl LIII ...

I pray that this national anthem will bring us all together in a way never before witnessed and we can move forward and untangle these truths which mean so much to all of us."

During the Civil War, the 4th verse of the Star-Spangled Banner inspired the 125th Pennsylvania Infantry to use "IN GOD WE TRUST" as its battle cry at the Battle of Antietam.

Rev. M.R. Watkinson wrote to the Treasury Department, November 13, 1861, suggesting the recognition of "Almighty God in some form in our coins."

Another proposal was to amend the Preamble of the U.S. Constitution to include the mention of "Almighty God" and "the Lord Jesus Christ."

This proposal was supported by:
Senator Charles Sumner of Massachusetts,
Senator B. Gratz Brown of Missouri, and
Senator John Sherman of Ohio,
along with Director of the U.S. Mint, James Pollock.

Their proposal was to amend the Preamble of the U.S. Constitution to have the new wording:

"We, the people of the United States, humbly acknowledging Almighty God as the source of all authority and power in civil government, the Lord Jesus Christ as the Ruler among the nations, His revealed will as the supreme law of the land,

in order to constitute a Christian government, and in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the inalienable rights and the blessings of life, liberty, and the pursuit of happiness to ourselves and our posterity, and all the people,

do ordain and establish this Constitution for the United States of America."

Lincoln's pastor, Rev. Phineas Gurley, arranged for proponents to meet with the President, February 11, 1864, after which Lincoln responded:

"The general aspect of your movement I cordially approve. In regard to particulars I must ask time to deliberate, as the work of amending the Constitution should not be done hastily."

Treasury Secretary Salmon P. Chase, who Lincoln later appointed Chief Justice, assigned James Pollock, Director of the U.S. Mint, with the task of adding the phrase "In God We Trust" to the two cent coin.

James Pollock was the former Governor of Pennsylvania and a former U.S. Congressman.

Pollock complied with Secretary Chase's request.

The Report of the Secretary of the Treasury on the State of the Finances (U.S. Dept. of the Treasury, 1863, page 190-191), printed James Pollock's reply:

"We claim to be a Christian nation -- why should we not vindicate our character by honoring the God of Nations ... Our national coinage should do this. Its legends and devices should declare our trust in God - in Him who is 'King of Kings and Lord of Lords.'"

James Pollock continued:

"The motto suggested, 'God our Trust,' is taken from our National Hymn, the 'Star-Spangled Banner.' The sentiment is familiar to every citizen of our country -- it has thrilled the hearts and fallen in song from the lips of millions of American Freemen ...

The time for the introduction of this ... is propitious and appropriate. 'Tis an hour of National peril and danger -- an hour when man's strength is weakness -- when our strength and our nation's strength and salvation, must be in the God of Battles and of Nations.

Let us reverently acknowledge his sovereignty, and let our coinage declare our trust in God."

Treasury Secretary Salmon P. Chase wrote to James Pollock, December 9, 1863:

"I approve your mottos, only suggesting that on that with the Washington obverse, the motto should begin with the word 'Our, ' so as to read: 'Our God and our Country.' And on that with the shield, it should be changed so as to read: 'IN GOD WE TRUST.'"

Salmon P. Chase's proposal was passed by Congress on April 22, 1864, allowing the motto on one-cent and two-cent coins.

On MARCH 3, 1865, Congress voted to approve the motto "IN GOD WE TRUST" for all U.S. coins.

House Speaker Schuyler Colfax noted:

"The last act of Congress ever signed by President Lincoln was one requiring that the motto .. . 'IN GOD WE TRUST' should hereafter be inscribed upon all our national coin."

"IN GOD WE TRUST" was inscribed in the U.S. House Chamber above the Speaker's rostrum;

- above the Senate's main southern door;

- on a tribute block inside the Washington Monument;

- on a stained-glass window in the U.S. Capitol's Chapel; and

- Capitol Visitors Center, due to the efforts of Congressman Randy Forbes.

President Harry S Truman stated October 30, 1949:

"When the U.S. was established ... the motto was 'IN GOD WE TRUST.' That is still our motto and we still place our firm trust in God."

President Eisenhower remarked at a ceremony issuing the first stamp bearing the motto "IN GOD WE TRUST," April 8, 1954:

"America's greatness has been based upon a spiritual quality ... symbolized by the stamp that will be issued today ...

Regardless of any eloquence of the words that may be inside the letter, on the outside he places a message:

'Here is ... the land that lives in respect for the Almighty's mercy to us' ... Each of us, hereafter, fastening such a stamp on a letter, cannot fail to feel something of the inspiration that we do whenever we ... read "IN GOD WE TRUST."

The same day, President Eisenhower stated to a Women's Conference:

"I have just come from assisting in the dedication of a new stamp ... The stamp has on it a picture of the Statue of Liberty, and on it also is stated 'IN GOD WE TRUST' ...

All of us mere mortals are dependent upon the mercy of a Superior Being ...

The reason this seems so thrilling is ... the opportunity it gives to every single individual who buys the stamp to send a message -- regardless of the content of a letter...that this is the land of the free and 'IN GOD WE TRUST.'"

President Eisenhower remarked at the 75th Anniversary of the Incandescent Lamp, October 24, 1954:

"'IN GOD WE TRUST.' Often have we heard the words of this wonderful American motto. Let us make sure that familiarity has not made them meaningless for us.

We carry the torch of freedom as a sacred trust for all mankind. We do not believe that God intended the light that He created to be putout by men ..."

Eisenhower continued:

"Atheism substitutes men for the Supreme Creator and this leads inevitably to domination and dictatorship.

But we believe -- and it is because we believe that God intends all men to be free and equal that we demand free government.

Our Government is servant, not master, our chosen representatives are our equals, not our czars or commissars ..."

Eisenhower concluded:

"We must jealously guard our foundation in faith. For on it rests the ability of the American individual to live and thrive in this blessed land -and to be able to help other less fortunate people to achieve freedom and individual opportunity.

These we take for granted, but to others they are often only a wistful dream."

One Sunday in 1953, Matt H. Rothert, president of the American Numismatic Association, was at church and noticed on the collection plate only coins bore the motto "IN GOD WE TRUST."

Realizing that paper currency had a larger global circulation, Rothert wrote letters and gave speeches promoting the motto be added to paper currency.

World War II veteran Congressman Charles E. Bennett of Florida, with other senators and representatives, helped pass H.R. 619, signed by President Eisenhower on July 11, 1955, to include "IN GOD WE TRUST" on all U.S. currency.

Congressman Bennett stated on the House Floor:

"Nothing can be more certain than that our country was founded in a spiritual atmosphere and with a firm trust in God ...

While the sentiment of trust in God is universal and timeless, these particular four words 'IN GOD WE TRUST' are indigenous to our country ...

In these days when imperialistic and materialistic communism seeks to attack and destroy freedom, we should continually look for ways to strengthen the foundations of our freedom."

In 1956, "IN GOD WE TRUST" was legally adopted by Congress and the President as the official United States National Motto. (Public Law 84-140; United States Code at 36 U.S.C. § 302).

On October 1, 1957, the first paper currency bearing the phrase "IN GOD WE TRUST" entered circulation -- the one dollar silver certificate.

John F. Kennedy stated February 9, 1961:

"The guiding principle of this Nation has been, is now, and ever shall be 'IN GOD WE TRUST.'"

President Reagan stated in his National Day of Prayer Proclamation, March 19, 1981:

"Our Nation's motto 'IN GOD WE TRUST' -- was not chosen lightly. It reflects a basic recognition that there is a divine authority in the universe to which this Nation owes homage."

Reagan stated at a White House observance of National Day of Prayer, May 6, 1982:

"Our faith in God is a mighty source of strength. Our Pledge of Allegiance states that we are 'one nation under God,' and our currency bears the motto, 'IN GOD WE TRUST.'"

Reagan said following a meeting with Pope John Paul II in Vatican City, June 7, 1982:

"Ours is a nation grounded on faith, faith in man's ability through God-given freedom to live in tolerance and peace and faith that a Supreme Being guides our daily striving in this world. Our national motto, 'IN GOD WE TRUST,' reflects that faith."

President George H.W. Bush met with Amish and Mennonites at Penn Johns Elementary School in Lancaster, PA, March 22, 1989. When a Mennonite leader stated:

"We want to keep that theme, 'IN GOD WE TRUST,' which is stamped on our money,"

President Bush replied: "It's staying there. Nobody can knock that off."

President George H.W. Bush remarked on the National Day of Prayer, May 4, 1989:

"We are one nation under God. And we were placed here on Earth to do His work. And our work has gone on now for more than 200 years in the Nation -- a work best embodied in four simple words: 'IN GOD WE TRUST.'"

In a 2003 joint poll by USA Today, CNN, and Gallup reported that 90% of Americans support "IN GOD WE TRUST" on U.S. coins.

In 2006, on the 50th anniversary of its adoption, the Senate reaffirmed "IN GOD WE TRUST" as the official national motto.

In July 2010, a Federal Appeals Court in the District of Columbia ruled 3-0 the National Motto was constitutional under the First Amendment, quoting the 1970 decision, Aronow v. United States:

"It is quite obvious that the national motto and slogan on coinage and currency 'IN GOD WE TRUST' has nothing whatsoever to do with the establishment of religion."

On March 7, 2011, the Supreme Court denied a challenge by an atheist who was intolerant of the National Motto, by letting the decision of the Federal Appeals Court stand.

On November 1, 2011, the House of Representatives passed an additional resolution in a 396-9 vote reaffirming "IN GOD WE TRUST" as the official motto of the United States.
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(Get William J. Federer's book Three Secular Reasons Why America Should Be Under God www.AmericanMinute.com)

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Saturday, Jul 11, 2015 11:59 AM EDT
“By the law of nature, all men are free�: Francis Scott Key and the case of the slave ship Antelope
With the Antelope case, the Supreme Court established precedents that would hold for 35 years: Slaves were property
Jonathan M. Bryant Skip to Comments

Topics: Books, dark places of the earth, slavery, the amistad, the antelope, Life News
“By the law of nature, all men are free�: Francis Scott Key and the case of the slave ship Antelope
A replica of a slave ship (Credit: AP/Anne Ryan)
Excerpted from "Dark Places of the Earth: The Voyage of the Slave Ship Antelope"

“The Africans are parties to the cause,
at least such of them as are free.�

Attorney General William Wirt The Antelope, 23 U.S. 66, 106 (1825)

On the morning of February 28, 1825, attorney John Macpherson Berrien prepared to open his case. This was the second of what would be five days of argument before the United States Supreme Court, and Berrien faced a formidable challenge. Just two days earlier, on Saturday, Francis Scott Key had opened for the federal government in the case of the Antelope. Key had not yet been relegated to textbooks as the pious author of “The Star-Spangled Banner.� In 1825 he was a lawyer at his peak: rich, well connected, and influential. He was also a superb speaker—some put him on par with Daniel Webster. Key had unleashed all of his rhetorical weapons on Saturday; this was a case he believed in and had worked personally to bring before the Supreme Court. The Antelope was a Spanish slave ship that had been captured by privateers and then seized by a United States Revenue Marine cutter off the coast of Florida. Using clear precedent, poetic language, and appeals to morality, Francis Scott Key argued that the hundreds of African captives found aboard the Antelope should be returned to Africa and freedom. United States law demanded it, he said. The law of nations demanded it, he said. Even the law of nature demanded it. Key looked into the eyes of the six justices sitting for the case, four of whom were slave owners, and announced that “by the law of nature, all men are free.�

The dim Supreme Court chamber in the basement of the Capitol was packed, and many spectators were impressed by Key’s argument. Henry S. Foote wrote that Key “greatly surpassed the expectations of his most admiring friends. . . . [and] he closed with a thrilling and even electrifying picture of the horrors connected with the African slave trade.� Most startling of all, Key argued that assuming all Africans were slaves, while declaring that all men were created equal, was philosophical and constitutional hypocrisy. If the United States had captured a ship full of white captives, Key asked, would not our courts assume them to be free? How could it be any different simply because the captives were black? Key knew that such disputes over slavery, race, and the meaning of the Constitution were not new, but in the 1820s, they’d begun to divide the nation. Just a few years earlier, from 1819 to 1821, conflict over the expansion of slavery into Missouri had torn Congress, and almost the nation, apart. Slavery was a dangerously hot subject, but Francis Scott Key stepped deliberately into the fire.

The city of Washington had all of Sunday to discuss and consider Key’s argument. On Monday morning there was great anticipation surrounding John M. Berrien’s rebuttal. Again the Supreme Court chamber was crowded, and Berrien knew that the spectators expected fireworks. He was a newly elected United States senator from Georgia and wanted to make a strong impression, but fireworks were not his style. Berrien was a man who focused on logic and details, on clear and forceful argumentation. His command of the details of the case was unrivaled, since he had been involved with it from the beginning: so involved, in fact, that he and several friends had substantial financial interest in the outcome. There were professional implications as well; his client was Santiago de la Cuesta y Manzanal, a Spanish nobleman living in Cuba. A ruthless, wealthy, and powerful man, Santiago de la Cuesta stood to lose as much as $100,000 if Berrien failed. By comparison, the annual salary of a Supreme Court justice in 1825 was $4,500. A fortune was at stake, as was John Macpherson Berrien’s rising reputation.

Berrien was a highly respected attorney and judge in Georgia, but his work at home was service in the far provinces in comparison to pleading before the Supreme Court. Not that this was his first time; he had argued before the Supreme Court seven years before. Francis Scott Key, in contrast, had argued before the Court every year for the past seventeen years, a total of forty-two cases thus far. U.S. Attorney General William Wirt, Key’s co-counsel, had appeared before the Court more than seventy times by 1825. In experience alone Berrien’s adversaries were overwhelming, and they also looked the part. Key “was tall, erect, and of admirable physical proportions.� Wirt was also tall, broad-chested, and graceful, with piercing blue eyes. Berrien was none of those, and he had a big nose to boot. Berrien also lacked the poetics and the gracious behavior of Francis Scott Key. While a polished and devastating debater, Berrien had a bitter and sometimes cruel wit that emerged even when he fought to control it. He had to restrain himself; one scored points before the Supreme Court with logic and the law, not with clever quips. The hour came; Berrien stood and began his argument.

*

Slavery and the slave trade had haunted the United States from its beginning, and in 1775, every North American colony was entangled in the system. Many of the Revolutionary generation believed that rebellion against Great Britain included rebellion against the colonial system of slavery. The preamble to the Declaration of Independence asserted inalienable rights of life, liberty, and the pursuit of happiness. Slavery was clearly antithetical to these rights. Thomas Jefferson had gone further in his draft of the Declaration, which famously included a powerful complaint against the king that was struck from the final document. The king, Jefferson wrote:

has waged cruel war against human nature itself, violating its most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the CHRISTIAN king of Great Britain. Determined to keep open a market where MEN should be bought & sold, . . .

As part of their resistance to Great Britain, the revolutionary states ended their participation in the African slave trade, even as they condemned British offers of freedom to slaves who enlisted to fight for the king. This reflected a developing tension in the new nation, as Americans struggled to accommodate slavery in a society asserting equality for all. The tension was especially apparent at the 1787 Constitutional Convention in Philadelphia, where conflicts arose over taxation, representation, and, inevitably, slavery. James Madison reported in his notes on the convention that compromise after compromise followed, until a final document was hammered out in September 1787. Slavery was never mentioned by name in the final version, but the Constitution engaged the issue. As John Quincy Adams explained, in the famous Amistad case, “The words slave and slavery are studiously excluded from the Constitution. Circumlocutions are the fig-leaves under which these parts of the body politic are decently concealed.�

The new system of government counted three-fifths of slaves for purposes of representation and taxation; required the return of fugitive slaves; and, most directly of all, prohibited any regulation of the Atlantic slave trade by the federal government until January 1, 1808. Southern planters, especially in Georgia and South Carolina, had lost tens of thousands of slaves during the Revolution. They insisted upon a chance to rebuild their stock of slaves through the direct African slave trade. Twenty years was the compromise with regard to how long direct trade would be allowed; most delegates assumed that after twenty years, the international slave trade would end. Delegates, however, also generally agreed that the new Constitution gave the federal government no power to regulate or control slavery in the states. This fit the federalist conception of the new government; it had power over international commerce, including the slave trade, but no power over domestic institutions within the states themselves. In a seemingly unconnected area, the Constitution also gave the federal judiciary control of “all Cases of admiralty and maritime Jurisdiction.� Federal courts, not state courts, would enforce any future federal laws respecting the seaborne slave trade.

Americans of the Revolutionary generation were torn by the issue of slavery. While many decried it, slavery seemed inescapably integrated into American society. Thomas Jefferson explained this terrible dilemma in a letter to John Holmes in April of 1820, writing, “but, as it is, we have the wolf by the ear, and we can neither hold him, nor safely let him go.� Several states adopted plans for emancipation, but these were very gradual plans lasting decades, and were adopted in states where slavery was not central to the economy. There were others, however, who saw slavery not just as the cost of union but as a force maintaining union. Following this line of reasoning, in the Antelope case John Macpherson Berrien argued before the Supreme Court concerning slaves:

The principle by which you continue to enjoy them, is protected by that constitution, forms a basis for your representatives, is infused into your laws, and mingles itself with all the sources of authority. . . . Paradoxical as it may appear, they [slaves] constitute the very bond of your union. The shield of your constitution protects them from your touch.

The slave trade, however, 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. Its horrors and abuses were well known, and educated citizens condemned it in public. By 1798, every American state had outlawed the international slave trade, though South Carolina reopened it in 1803. In December of 1806, President Thomas Jefferson called upon the United States Congress for a law prohibiting the international slave trade at the earliest time allowed by the Constitution. By the end of February 1807, Congress had sent An Act to Prohibit the Importation of Slaves to the president for his signature. This law made it illegal for Americans to participate in the international slave trade, and illegal for anyone to import slaves into the United States after January 1, 1808. At almost the same time in Great Britain, in March 1807, after more than two decades of political struggle by abolitionists, Parliament passed An Act for the Abolition of the Slave Trade. Under this law, British participation in any aspect of the slave trade was unlawful, as was the importation of slaves to any British possessions after May 1, 1807.

It was one thing to outlaw the international slave trade; it was something else to put that law into effect. In 1808, the United States had little in the way of a meaningful navy, and did no more than try to control ships bringing slaves to American shores. Great Britain, engaged in a titanic war with Napoleon’s France, went much further and empowered its vast navy to suppress the slave trade. The impact of the laws and British action was immediate. From 1800 through 1807, documented voyages delivered almost 80,000 slaves to the Americas each year. In 1807, the number of slaves from documented voyages arriving in the New World totaled 86,343. In 1808, that fell to less than 33,000, and in 1809, less than 31,000. Clearly law and the British assumption of a wartime power to stop and search any vessel on the high seas had a significant effect upon the extent of the international slave trade, even when only one nation was engaged in the effort.

Despite these successes, the slave trade continued. The vibrant and growing plantations of Spanish Cuba and Brazil demanded more enslaved workers, and slavers in Africa continued to offer captives at prices that kept the slave traders’ profits high. With the end of the Napoleonic Wars in 1815, the number of slaving voyages and slaves delivered to the Americas began to rise significantly. Slavers learned to use the flags of various nations to protect their ships, especially those of Spain, Portugal, and, increasingly, the United States. British reluctance to stop and search American ships after 1815 conferred significant immunity upon vessels flying the American flag legitimately or illegitimately. Much of the financing for these voyages also came from the United States. This was especially true for slaving voyages to Cuba. Finally, many American citizens were involved as sailors and officers in these ventures.

Partly in response to these and other political issues, in March 1819, Congress passed An Act in Addition to the Acts to Prohibit the Importation of Slaves. This law increased the penalties for Americans engaged in the international slave trade, and for the first time provided money to support implementation of the law. Most importantly for the case of the Antelope, the 1819 Slave Trade Act provided that captives brought into the United States illegally would come under the authority of the president of the United States. The president would then arrange as soon as possible to return the captives to Africa. Congress also revised American piracy law in May of 1820. Americans engaged in the slave trade were deemed pirates and, as such, were subject to the death penalty. At a time when the United States was torn over the admission of Missouri as a slave state, and divided on the issue of the westward expansion of slavery, the congressional votes on the 1819 Slave Trade Act and the 1820 Piracy Act suggested a significant commitment to strong laws for suppression of the international slave trade.

The arrival of the Antelope tested that commitment. The ship was a Spanish slaver from Cuba, captured off the coast of Africa by a revolutionary privateer. An American revenue cutter later captured the Antelope off the coast of Spanish Florida. Found aboard were 281 living captives. The seven years of legal conflict over the captives that followed revealed much of the dark underside of law and commerce in the young Republic. The conflict over freedom for 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? How was international law shaped, and what role did it have in American law? Did African captives have the same rights as other human beings in the American legal system, or did race limit their rights before the courts? 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?

*

The Antelope is not commonly considered an important Supreme Court case. It is long — more than seventeen thousand words, and complex. It was an admiralty law case, with arcane procedures and different rules of evidence than those of common law. It did not boldly highlight a groundbreaking change in the powers of federal governance. In many ways the case has simply been overlooked. If asked about important Supreme Court cases on slavery, most historians would name Dred Scott, or perhaps Prigg v. Pennsylvania. Thanks to Steven Spielberg, members of the public would most likely mention the Amistad. The Antelope is crucial, however, because in it Chief Justice John Marshall and the Supreme Court established precedents—in international law, property law, and the Court’s cognizance of natural rights—that influenced future decisions on slavery. As Marshall explained early in his Antelope opinion:

In examining claims of this momentous importance; claims in which the sacred rights of liberty and of property come in conflict with each other; . . . this Court must not yield to feelings which might seduce it from the path of duty, and must obey the mandate of the law.

By refusing to be “seduced� from the path of duty and by affirming that while slaves might be human beings, at law slaves were property, John Marshall’s Court shaped American jurisprudence on these issues for the next thirty-five years. The Court also buttressed the claims of slave owners in looming struggles over fugitive slaves and the westward expansion of slavery. Whether or not the Constitution is a pro-slavery document is much debated among historians, but without question it is a pro-property document. If slaves are property, and nothing else, then a pro-property Constitution will inevitably be pro-slavery. Thus, in many ways John Marshall’s opinion in the Antelope reinforced the divisions that would tear the nation apart.

John Macpherson Berrien could not see the future, but as a plantation master he understood the importance of slaves remaining property at law. He began his argument by summarizing Key’s address, and then highlighted the implications. If the Court accepted Key’s assertions, Berrien argued, then “we are bound, prima facie, to hold that there can be no property in a human being.� He let that hang for a moment. Then he moved to the logical destruction of Key’s presentation, ticking off point by point from a numbered list. Berrien mocked Key’s ethical arguments, asking, “[W]ould it become the United States to assume . . . the character of censors of the morals of the world . . . ?� He continued, “We have no pretense, then, to enforce against others our own peculiar notions of morality. The standard of morality, by which Courts of justice must be guided, is that which the law prescribes.� Berrien’s presentation was masterful, biting, sardonic, and brilliant. Unfortunately for the Antelope captives, and for the nation, several justices found it convincing.

Excerpted from “Dark Places of the Earth: The Voyage of the Slave Ship Antelope� by Jonathan M. Bryant. Copyright © 2015 by Jonathan M. Bryant. With permission of the publisher, Liveright Publishing Corporation. All rights reserved.





American Minute with Bill Federer MARCH 3. By an Act of Congress (36 U.S.C. Sec.170, March 3, 1931) the Star-Spangled Banner became the U.S. National Anthem. (May 21, 22, 28, 1958, Hearings before the Subcommittee No. 4 of the Committee of the Judiciary, 85th Congress, 2nd Session, p. 6.) Charles Wallis, ed., Our American Heritage (NY: Harper & Row, Publishers, Inc., 1970), p. 144. Schuyler Colfax, Speaker of the House of Representatives, Memorial Address for President Lincoln, April 24, 1865. Colfax, Lincoln, p. 180. Peter Marshall & David Manuel, The Glory of America (Bloomington, MN: Garborg's Heart 'N Home, Inc., 1991), 4.24. D.P. Diffine, Ph.D., One Nation Under God - How Close a Separation? (Searcy, Arkansas: Harding University, Belden Center for Private Enterprise Education, 6 edition, 1992), p. 15. U.S. Congress, 1955, passed a bill, signed by Eisenhower, providing that all United States currency should bear the words "In God We Trust." The World Book Encyclopedia, 18 vols. (Chicago, IL: Field Enterprises, Inc., 1957; W.F. Quarrie & Co., 8 vols., 1917; World Book, Inc., 22 vols., 1989), Vol. 11, p. 5182. Harry S Truman, October 30, 1949, radio address. John F. Kennedy, February 9, 1961, 9th Annual Presidential Prayer Breakfast, sponsored by the International Christian Leadership, Inc., held at the Mayflower Hotel, Washington, D.C. Ronald Reagan, March 19, 1981, Proclamation of a National Day of Prayer.

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