My last post of this year is about what case should be first in property. Following up on my recent post on Integrating Spaces -- and recognizing that this is the season when a lot of property syllabi are being put together -- I'd like to put in a plug for using Chief Justice John Marshall's 1825 opinion in The Antelope as a way of beginning property.
Probably most people these days start property with Johnson v. M'Intosh, a Marshall opinion that concludes that Native Americans did not have the right to sell land directly to white settlers -- they had to deal with the government instead. Along the way Marshall talks a lot about how European nations acquired property rights in land in the Americas (through discovery, which could then be confirmed through conquest or purchase). There are a lot of lessons in there for first year property students -- including about where property rules come from (long term agreement is one important answer). Marshall also deals with the question of the morality of those rules and the quesstion of why we follow "the law" as opposed to our internal moral sense.
But there is another opinion -- issued two years later -- that deals with similar issues: when are property rights acquired in human beings. Marshall's opinion in The Antelope has a complex history -- in piracy and the transitioning away from the international slave trade that was underway. (You may recall that the United States outlawed the importation of enslaved people in 1808, but in the early 1820s other countries had not yet moved to prohibit the international slave trade.)
The case was set in motion when the ship Columbia left Baltimore in 1819, flying a Venezuelian flag, with an American crew. Shortly after leaving the US, it hoisted a flag of an obscure Latin American republic, changed its name to Arrganta, and set a course for the east coast of Africa. While there it attacked several ships carrying slaves -- one was a US ship, several were Portuguese, and a final one was a Spanish ship, the Antelope. The Arraganta and the newly captured Antelope then together headed to South America. Off the coast of Brazil the Arraganta wrecked and the surviving crew and slaves were then consolidated on The Antelope. The Antelope sailed around the Caribbean trying to sell its human cargo. It stopped at Surinam -- hence the image of John Greenwood's Sea Captains Carousing in Surinam from the St. Louis Museum of Art -- and it eventually was captured off the coast of Florida, where it was getting ready to unload its human cargo -- in violation of US law. Thus was set up a question about which of the people (if any) on The Antelope was a slave and why?
The short version of what Marshall decided was this: The Antelope had human cargo from ships of three different countries -- the US, Spain, and Portugal. The slaves from the US ship were free because the US had prohibited its ships from engaging in the slave international trade; Spain and Portugal, however, still permitted the international slave trade -- so the slaves who came off their ships might need to be returned to their "owners." No one from Portugal showed up to claim the slaves, which led Marshall to believe that the true "owners" were not from Portugal but from some country that had prohibited the slave trade. Hence the slaves attributed to Portugal were also freed. The question, then, was to prove which slaves came from the Spanish ship.
That's the short version of what Marshall decided -- but what interests me most about The Antelope opinion is how Marshall arrived at that point. As in Johnson v. M'Intosh, Marshall recognized the moral issues at stake here -- and then moved to separate the moral from the legal. I always want to talk with the students about why he makes this move and whether it is appropriate. Then Marshall develops the law of slavery -- and why the US should recognize the claims of the Spanish "owners." As with Johnson there is a lot of talk about long-term agreement among many nations on the rules of slavery and property in humans. Thus, the case I've found is a great way to introduce students to questions about the distinction between law and morality, about where property rights come from, and about the limits of those rights. It's always a good discussion -- and works particularly well for first semester students making the transition into law school, but I think it works as well as Johnson v. M'Intosh for second semester students, too -- and in fact I really enjoy teaching The Antelope and then Johnson.
If you'd like to check this out for yourself, the first chapter of Integrating Spaces, which begins with The Antelope is available on Aspen's website.
Al,
I just got Integrating Spaces in the mail. Though its too late for this year, I plan to adopt it as a supplement to my property class next year.
Its a great collection of cases and materials.
Marc
Posted by: Marc | December 30, 2010 at 10:31 AM