This article originally appeared in the Daily Journal on January 9, 2017.

Would a contemporary court condone a lottery condemning scores of people to a lifetime of slavery? Of course not. But disturbing decisions can lie hiding behind innocuous boilerplate citations.

For example, in de Fontbrune v. Wofsy, 838 F.3d 992 (9th Cir. 2016), the 9th U.S. Circuit Court of Appeals explains how federal courts should interpret foreign law. But something else in the decision raised my eyebrows: an isolated citation supporting an uncontroversial point of law. De Fontbrune noted the “ancient maxim of international law that ‘[t]he Courts of no country execute the penal laws of another.’” 838 F.3d at 1000. For this it quoted Chief Justice John Marshall’s decision in The Antelope, 23 U.S. 66, 123 (1825). 

This citationcaught my attention because my opponents in a 9th Circuit case had cited The Antelope years ago for the same proposition, and the decision had included the citation. I read The Antelope then and found it quite unsettling. I wondered whether lawyers and jurists were citing the case for a routine legal principle without considering its full scope.

The Antelope reflects our nation’s regrettable early entanglement with slavery. In 1825, the nation had not yet gone to civil war over slavery but had outlawed the importation of slaves. To simplify somewhat, the Antelope was a sailing ship commanded by American privateers who had seized the unfortunate human cargo of several slave ships — one American, one Spanish and the others Portuguese. A United States Treasury ship captured the Antelope and brought it to Savannah, where the federal district court decided the captured slaves’ fate.

Because American law declared the slave trade illegal, the American slavers forfeited the captives seized from their ship, who would ultimately be delivered to Liberia and set free. But the court held that those seized from the Spanish and Portuguese ships would be restored to those countries, leading to their continued enslavement. Even more distressing is that there was no way to determine which persons had been seized from which ship. Rather than hold that Spain and Portugal had not proved their claims, the trial court decreed that the captives would be allocated to freedom or slavery by a lottery, in numbers proportionate to the numbers seized from each ship. 

Writing for the Supreme Court, Marshall acknowledged that he was addressing claims of “momentous importance” in which “the sacred rights of liberty and of property come in conflict with each other.” And, he recognized, the slave trade “is contrary to the law of nature.” But in the role of a jurist rather than a moralist, he acknowledged that international law had decided that the slave trade was legal. 

At this point in the decision, Marshall announced the legal principle for which The Antelope is sometimes cited — that the courts of one country do not execute another’s penal laws. This holding is actually dictum. Neither Spain nor Portugal then prohibited the slave trade, so the Supreme Court was not called upon to enforce another country’s penal laws. 

Ultimately, Marshall acknowledged that whether the captured slaves were to be given their freedom was “a question on which much difficulty has been felt.” But the court divided evenly on whether “restitution” of the slaves to Spain and Portugal was legally required, and thus affirmed the decisions below ordering such restitution. (The Antelope is also sometimes cited for the point that a tie vote in the Supreme Court results in a non-precedential affirmance of the decision below. See, e.g., Ohio ex rel. Eaton v. Price, 364 U.S. 263 (1960).) This tie vote condemned many of the persons seized to a lifetime of slavery — their fate to be determined by lot.

Although the court’s legal determination was on the wrong side of history, it did take the unusual step of reviewing the facts of the case. This at least improved the numerical outcome. The court found that too many persons had been allotted to the Spanish ship, and that no qualified owner had come forward to claim the Portuguese ships’ cargo. Consequently, the proportionate number of persons to be returned to slavery was reduced from 166 to 93. But the conclusion remains horrifying to the modern reader.

More broadly, one might defend Marshall’s decision on the ground that he was trying to maintain the court’s authority (without which even the American prohibition on the slave trade might not have been enforced) at a time when the nation was deeply and uncompromisingly divided over slavery. This is not a debate I’m addressing today. My point is a simpler one: We ought to pay more attention to what the cases we cite stand for, in their entirety.

One could, but I think should not, cite Dred Scott v. Sandford (holding that a descendant of slaves could not be a United States citizen) for the proposition that “a court can give no judgment for either party, where it has no jurisdiction.” 60 U.S. 393, 427 (1856). One could, but I think should not, cite Plessy v. Ferguson (upholding the legal separation of the races) for the proposition that “every exercise of the police power must be reasonable.” 163 U.S. 537, 551 (1896). Such cases merit discussion in context, but I don’t think they should be held up as routine sources of legal authority.

In the last 50 years, the 9th Circuit has cited The Antelope six times, as has the U.S. Supreme Court twice, mostly to say that one country may not execute another’s penal laws. This seems unnecessary; other less exceptionable decisions, such as James-Dickinson Farm Mortg. Co. v. Harry, 273 U.S. 119 (1927), make the same point.

My modest suggestion is that cases like The Antelope should not be cited for routine legal propositions, at least not without acknowledging their troublesome take on the broader issues they raise.

Appellate Zealots is a bi-monthly column on recent appellate decisions written by the attorneys of the California Appellate Law Group LLP*, an appellate boutique based in San Francisco. Charles Kagay is of counsel with the firm. He has decades of experience handling appeals that involve complex or novel legal questions and is certified by the State Bar as a California appellate specialist. Find out more about Charles and the California Appellate Law Group LLP at

*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.

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