In these cases a petition for a re-hearing has been presented, which we have attentively considered; the more so, as we desire not even to appear to innovate, in any thing which relates to the contract of insurance.

The counsel have not correctly understood us, if they suppose we meant to make the difference between the African slave trade, as it once existed, and the commerce between the State *354of this Union in slaves, to consist in the desire, in a greater or less degree inherent in such persons, to escape from restraint and become free. We cannot but think there was a great dif. ference between the two, when the slave trade was tolerated by the law of nations. The natives of Africa were guilty of no crime, when they resisted the attempt of the slaver to subject them to a servile condition. Under the constitution of the United States, slaves in those States where that institution, slavery; is permitted, are' legitimate property, and if the mutineers on board the Creole had escaped into a non-slaveholding State, the master might have reclaimed them, and they might have been punished for the murder committed on board. A small part only of the slaves on -board appear to have been engaged in the mutiny. Now, however plausible it may appear to apply to those few, the principle which relates to the natural ■ decay or self-combustion of the subject matter insured, we do not clearly perceive how it can apply to the others who remained passive. On the contrary, we think, their forcible resistance to the authority of the master of the vessel on the voyage, was a peril within the policy.

Admit that under the plea of the general issue, in an action of assumpsit at common law, the enquiry might be gone into, whether there had been a deviation, and whether the policy ever attached, it only follows that evidence was admissible without any special defence. No evidence on either of these points was offered and rejected ; and from the evidence before the jury we are not authorised to pronounce that the verdict was so clearly wrong, as to justify our interference.

If the slave Mary was_ one of those insured, and she arrived safe, the title to her vested in the defendants by the abandonment ; and if she has in fact been retained by the plaintiff, the defendants’ right to recover her, which is left doubtful, ought to be, and is hereby reserved.

It is, therefore, ordered, that the judgment first rendered, with the above reservation, be maintained, and the re-hearing refused.