ARGUMENT
OF JOHN QUINCY ADAMS FOR THE APPELLEES
Link to Conclusion
The Argument of John Quincy Adams in the Amistad Case
Argument of John Quincy Adams Before the
Supreme Court of the United States in the case of the United
States, Appellants, vs. Cinque, and others, Africans, captured
in the schooner Amistad,
by Lieut. Gedney, Delivered on the 24th of February and 1st of
March 1841.
Originally
published in 1841 by S.W. Benedict
ARGUMENT OF JOHN QUINCY ADAMS
MAY IT PLEASE YOUR HONORS—
In rising to address this Court as one of its attorneys and
counselors, regularly admitted at a great distance of time, I feel
that an apology might well be expected where I shall perhaps be more
likely to exhibit at once the infinities of age and the inexperience
of youth, than to render those services to the individuals whose
lives and liberties aren't the disposal of this Court which I would
most earnestly desire to render. But as I am unwilling to employ one
moment of the time of the Court in anything that regards my own
personal situation, I shall reserve what few observations I may
think necessary to offer as an apology till the close of my argument
on the merits of the question.
I therefore proceed immediately to say that, in a consideration of
this case, I derive, in the distress I feel both for myself and my
clients, consolation from two sources—first, that the rights of my
clients to their lives and liberties have already been defended by
my learned friend and colleague in so able and complete a manner as
leaves me scarcely anything to say, and I feel that such full
justice has been done to their interests, that any fault or
imperfection of mine will merely be attributed to its true cause;
and secondly, I derive consolation from the thought that this Court
is a Court of JUSTICE. And in saying so very trivial a thing I
should not on any other occasion, perhaps, be warranted in asking
the Court to consider what justice is. Justice, as defined in the
Institutes of Justinian, nearly 2000 years ago, and as it felt and
understood by all who understand human relations and human rights,
is—
"Constans et perpetua voluntas, jus suum cuique tribuendi."
"The constant and perpetual will to secure to every one HIS OWN
right."
And in a Court of Justice, where there are two parties present,
justice demands that the rights of each party should be allowed to
himself, as well as that each party has a right, to be secured and
protected by the Court. This observation is important, because I
appear here on the behalf of thirty six individuals, the life and
liberty of every one of whom depend on the decision of this Court.
The Court, therefore, I trust, in deciding this case, will form no
lumping judgment on these thirty six individuals, but will act on
the consideration that the life and the liberty of every one of them
must be determined by its decision for himself alone.
They are here, individually, under very different circumstances, and
in very different characters. Some are in one predicament, some in
another. In some of the proceedings by which they have been brought
into the custody and under the protection of this Court, thirty two
or three of them have been charged with the crime of murder. Three
or four of them are female children, in. capable, in the judgment of
our laws, of the crime of murder or piracy or, perhaps, of any other
crime. Yet, from the day when the vessel was taken possession of by
one of our naval officers, they have all been held as close
prisoners, now for the period of eighteen long months, under custody
and by authority of the Courts of the United States. I trust,
therefore, that before the ultimate decision of this Court is
established, its honorable members will pay due attention to the
circumstances and condition of every individual concerned.
When I say I derive consolation from the consideration that I stand
before a Court of Justice, I am obliged to take this ground,
because, as I shall show, another Department of the Government of
the United States has taken, with reference to this case, the ground
of utter injustice, and these individuals for whom I appear, stand
before this Court, awaiting their fate from its decision, under the
array of the whole Executive power of this nation against them, in
addition to that of a foreign nation. And here arises a
consideration, the most painful of all others; in considering the
duty I have to discharge, in which, in supporting the action to
dismiss the appeal, I shall be obliged not only to investigate and
submit to the censure of this Court, the form and manner of the
proceedings of the Executive in this case, but the validity, and the
motive of the reasons assigned for its interference in this unusual
manner in a suit between parties for their individual rights.
At an early period of my life it was my fortune to witness the
representation upon the stage of one of the tragic masterpieces of
the great Dramatist of England, or I may rather say of the great
Dramatist of the world, and in that scene which exhibits in action
the sudden, the instantaneous fall from unbounded power into
irretrievable disgrace of Cardinal Wolsey, by the abrupt declaration
of displeasure and dismission from the service of his King, made by
that monarch in the presence of Lord Surry and of the Lord
Chamberlain; at the moment of Wolsey's humiliation and distress,
Surry given vent to his long suppressed resentments for the
insolence and injuries which he had endured from the fallen favorite
while in power, and breaks out into insulting and bitter reproaches,
till checked by the Chamberlain, who says:
"Oh! my Lords; Press not a falling man too far: 'tis Virtue."
The repetition of that single line, in the relative position of the
parties, struck me as a moral principle, and made upon my mind an
impression which I have carried with me through all the changes of
my life, and which I trust I shall carry with me to my grave.
It is, therefore, peculiarly painful to me, under present
circumstances, to be under the necessity of arraigning before this
Court and before the civilized world, the course of the existing
Administration in this case. But I must do it. That Government is
still in power, and thus, subject to the control of the Court, the
lives and liberties of all my clients are in its hands. And if I
should pass over the course it has pursued, those who have not kind
an opportunity to examine the case and perhaps the Court itself,
might decide that nothing improper had been done, and that the
parties I represent had not been wronged by the course pursued by
the Executive. In making this charge, or arraignment, as defensive
of the rights of my clients I now proceed to an examination of the
correspondence of the Secretary of State with the ambassador of her
Catholic Majesty, as officially communicated to Congress, and
published among the national documents.
The charge I make against the present Executive administration is
that in all their proceedings relating to these unfortunate men,
instead of that Justice, which they were bound not less than this
honorable Court itself to observe, they have substituted
Sympathy!—sympathy with one of the parties in this conflict of
justice, and antipathy to the other. Sympathy with the white,
antipathy to the black—and in proof of this charge I adduce the
admission and avowal of the Secretary of State himself. In the
letter of Mr. Forsyth to the Spanish Minister d'Argaiz, of 13th of
December, 1839, defending the course of the administration against
the reproaches utterly ground. less, but not the less bitter of the
Spanish Envoy, he says:
"The undersigned cannot conclude this communication without calling
the attention of the Chevalier d'Argaiz to the fact, that with the
single exception of the vexatious detention to which Messrs. Montes
and Ruiz have been subjected in consequence of the civil suit
instituted against them, all the proceedings in the matter, on the
part both the Executive and Judicial branches of the government have
had their foundation in the ASSUMPTION that these persons ALONE were
the parties aggrieved; and that their claims to the surrender of the
property was founded in fact and in justice."
At the date of this letter, this statement of Mr. Forsyth was
strictly true. All the proceedings of the government, Executive and
Judicial, in this case had been founded on the assumption that the
two Spanish slave dealers were the only parties aggrieved— that all
the right was on their side and all the wrong on the side of their
surviving self emancipated victims. I ask your honors, was this
JUSTICE, No. It was not so considered by Mr. Forsyth himself. It was
sympathy, had he so calls it, for in the preceding page of the same
letter referring to the proceedings of this Government from the very
first intervention of Lieut. Gedney, he says:
"Messrs. Ruiz and Montes were first found near the coast of the
United States, deprived of their property and of their freedom,
suffering from lawless violence in their persons, and in imminent
and constant danger of being deprived of their lives also.
They were found in this distressing and perilous situation by
officers of the United States, who, moved towards them by
sympathetic feeling which subsequently became as it were national,
immediately rescued them from personal danger, restored them to
freedom, secured their oppressor, that they might abide the
consequences of the acts of violence perpetrated upon them, and
placed under the safeguard of the laws all the property which they
claimed as their own, to remain in safety until the competent
authority could examine their title to it, and pronounce upon the
question of ownership agreeably to the provisions of the 9th article
of the treaty of 1795."
This sympathy with Spanish slave traders is declared by the
Secretary to have been first felt by Lieutenant Gedney. I hope this
is not correctly represented. It is imputed to him and declared to
have become in a manner national. The national sympathy with the
slave traders of the baracoons is officially declared to have been
the prime motive of action of the government: And this fact is given
as an answer to all the claims, demands and reproaches of the
Spanish minister! I cannot urge the same objection to this that was
brought against the assertion in the libel— that it said the thing
which is not—too unfortunately it was so, as he said. The sympathy
of the Executive government, and as it were of the nation, in favor
of the slavetraders, and against these poor, unfortunate, helpless,
tongueless, defenseless Africans, was the cause and foundation and
motive of all these, proceedings, and has brought this case up for
trial before your honors.
I do not wish to blame the first sympathies of Lieut. Gedney, nor
the first action of the District and Circuit Courts. The seizure of
the vessel, with the arrest and examination of their Africans' was
intended for inquiry, and to lead to an investigation of the rights
of all parties. This investigation has ultimated in the decision of
the District Court, confirmed by the Circuit Court, which it is now
the demand of the Executive should be reversed by this Court. The
District Court has exercised its jurisdiction over the parties in
interest, and has found that the right was with the other party,
that the decisions of JUSTICE were not in accordance with the
impulses of sympathy, and that consequently the sympathy was wrong
before. And consequently it now appears that everything which has
flowed from this mistaken or misapplied sympathy, was wrong from the
beginning.
For I inquire by what right, all this sympathy, from Lieut. Gedney
to the Secretary of State, and from the Secretary of State, as it
were, to the nation, was extended to the two Spaniards from Cuba
exclusively, and utterly denied to the fifty two victims of their
lawless violence. By what right was it denied to the men who had
restored themselves to freedom, and secured their oppressors to
abide the consequences of the acts of violence perpetrated by them,
and why was it extended to the perpetrators of those acts of
violence themselves' When the Amistad
first came within the territorial jurisdiction of the United States,
acts of violence had passed between the two parties, the Spaniards
and Africans on board of her, but on which side these acts were
lawless, on which side were the oppressors, was a question of right
and wrong, for the settlement of which, if the government and people
of the United States interfered at all, they were bound in duty to
extend their sympathy to them all; and if they intervened at all
between them, the duty incumbent upon this intervention was not of
favor, but of impartiality—not of sympathy, but of JUSTICE,
dispensing to every individual his own right.
Thus the Secretary of State himself declares that the motive for all
the proceedings of the government of the United States, until that
time, had been governed by sympathetic feeling towards one of the
parties, and by the assumption that all the right was on one side
and all the wrong on the other. It was the motive of Lieut. Gedney:
the same influence had prevailed even in the judicial proceedings
until then: the very language of the Secretary of State in this
fetter breathes the same spirit as animating the executive
administration, and has continued to govern all its proceedings on
this subject to the present day. It is but too true that the same
spirit of sympathy and antipathy has nearly pervaded the whole
nation, and it is against them that I am in duty bound to call upon
this Court to restrain itself in the sacred name of JUSTICE.
One of the Judges who presided in some of the preceding trials, is
said to have called this an anomalous case. It is indeed anomalous,
and I know of no law, but one which I am not at liberty to argue
before this Court, no law, statute or constitution, no code, no
treaty, applicable to the proceedings of the Executive or the
Judiciary, except that law, (pointing to the copy of the Declaration
of Independence, hanging against one of the pillars of the
courtroom,) that law, two copies of which are ever before the eyes
of your Honors. I know of no other law that reaches the case of my
clients, but the law of nature and of Nature's God on which our
fathers placed our own national existence. The circumstances are so
peculiar, that no code or treaty has provided for such a case. That
law, in its application to my clients, I trust will be the law on
which the case will be decided by this Court.
In the sequel to the diplomatic correspondence between the Secretary
of State and the Spanish minister Argaiz, relating to the case of
the Amistad, recently
communicated by the President of the United States to the Senate,
the minister refers with great apparent satisfaction to certain
resolutions of the Senate, adopted at the instance of Mr. Calhoun,
on the 15th of April, 1840, as follows:
1. "Resolved—That a ship or vessel on the high seas, in time of
peace, engaged in a lawful voyage, is according to the laws of
nations under the exclusive jurisdiction of the state to which her
flag belongs as much as if constituting a part of its own domain.''
2. "Resolved-- That if such ship or vessel should be forced, by
stress of weather, or other unavoidable cause into the port, and
under the jurisdiction of a friendly power, she and her cargo, and
persons on board, with their property, and all the rights belonging
to their personal relations, as established by the laws of the state
to which they belong, would be placed under the protection which the
laws of nations extend to the unfortunate under such circumstances."
Without entering into any discussion as to the correctness of these
principles, let as admit them to be true to their fullest extent,
and what is their application to the case of the Amistad? If the first of the
resolutions declares a sound principle of national law, neither
Lieut. Gedney, nor Lieut. Meade, nor any officer of the brig
Washington had the shadow of a right even to set foot on board of
the Amistad. According to
the second resolution, the Africans in possession of the vessel were
entitled to all the kindness and good offices due from a humane and
Christian nation to the unfortunate; and if the Spaniards were
entitled to the same, it was by the territorial right and
jurisdiction of the State of New York and of the Union, only to the
extent of liberating their persons from imprisonment. Chevalier
d'Argaiz, therefore, totally misapprehends the application of the
principles asserted in these resolutions of the Senate, as indeed
Mr. Forsyth appears by his answer to this letter of the Chevalier to
be fully aware. From the decisiveness with which on this solitary
occasion he meets the pretensions of the Spanish Envoy, a fair
inference may be drawn that the Secretary himself perceived that the
Senatorial resolutions, instead of favoring the course of Montes and
Ruiz, have a bearing point blank against them.
The Africans were in possession, and had the presumptive right of
ownership; they were in peace with the United States; the Courts
have decided, and truly, that they were not pirates; they were on a
voyage to their native homes—their dulces Argos; they kind acquired
the right and so far as their knowledge extended they had the power
of prosecuting the voyage; the ship was theirs, and being in
immediate communication with the shore, was in the territory of the
State of New York; or, if not, at least half the number were
actually on the soil of New York, and entitled to all the provisions
of the law of nations, and the protection and comfort which the laws
of that State secure to every human being within its limits.
In this situation Lieut. Gedney, without any charge or authority
from his government, without warrant of law, by force of fire arms,
seizes and disarms them, then being in the peace of that
Commonwealth and of the United States, drives them on board the
vessel, seizes the vessel and transfers it against the will of its
possessors to another State. I ask in the name of justice, by what
law was this done 1 Even admitting that it had been a case of actual
piracy, which your courts have properly found it was not, there are
questions arising here of the deepest interest to the liberties of
the people of this Union, and especially of the State of New York.
Have the officers of the U. S. Navy a right to seize men by force,
on the territory of New York, to fire at them, to overpower them, to
disarm them, to put them on board of a vessel and carry them by
force and against their will to another State, without warrant or
form of law 1 I am not arraigning Lieut. Gedney, but I ask this
Court, in the name of justice, to settle it in their minds, by what
law it was done, and how far the principle it embraces is to be
carried.
The whole of my argument to show that the appeal should be
dismissed, is founded on an averment that the proceedings on the
part of the United States are all wrongful from the beginning. The
first act, of seizing the vessel, and these men, by an officer of
the navy, was a wrong. The forcible arrest of these men, or a part
of them, on the soil of New York, was a wrong. After the vessel was
brought into the jurisdiction of the District Court of Connecticut,
the men were first seized and imprisoned under a criminal process
for murder and piracy on the high seas. Then they were libelled by
Lieut. Gedney, as property, and salvage claimed on them, and under
that process were taken into the Custody of the marshal as property.
Then they were claimed by Ruiz and Montes and again taken into
custody by the court. The District Attorney of Connecticut wrote to
the Secretary of State, September 5th, giving him an account of the
matter, stating that " the blacks are indicted for the murder of the
captain and mate," and " are now in jail at New Haven ;" that "the
next term of our Circuit Court sits on the 17th instant, at which
time I suppose," —that is in italics in the printed document—" I
suppose it will be my duty to bring them to trial, unless they are
in some other way disposed of." This is the first intimation of the
District Attorney; it is easy to understand in what "other way" he
wished them disposed of. And he closes by saying—"should you hare
any instructions to give on the subject, I should line to receive
them as soon as may be."
On the 9th of September, he writes again that he has examined the
law, which has brought him fully to the conclusion that the Courts
of the United States cannot take cognizance of any offense these
people may hare committed, as it was done on board a vessel
belonging to a foreign state. And then he says,
"I would respectfully inquire, sir, whether there are no treaty
stipulations with the Government of Spain that would authorize our
Government to deliver them up to the Spanish authorities; and if so,
whether it could be done before our court sits".
This is the second intimation from the District Attorney. We shall
find others. Now it appears that the Africans were fully in the
custody of the Court, first on the criminal charge, and then on the
claim to them as property. The Court was to sit in eight days, the
District Attorney is satisfied they cannot be tried, and be is
anxious to know whether they cannot be disposed of in some way by
the Executive, so that the Courts of the United States may have no
chance to decide upon the case. May it please your Honors, I am
simply pursuing the chain of evidence in this case, to show the
effects of the sympathy in favor of one of the parties and against
the other, which the Secretary of State says had become in a manner
"national." The next document is a letter of the Secretary of State
to the District Attorney, Sept. 11, 1839:
"SIR: Since the receipt of your
letter of the 5th instant, relative to the case of the Spanish
schooner 'Amistad,' brought into the port o, New London on the
26th ultimo, by Lieutenant Gedney, of the surveying brig
Washington, a communication has been ad. dressed to this
department by the minister of Her Catholic Majesty, claiming the
vessel, cargo and blacks," [vessel, cargo and blacks, the Court
will observe,] " on board, as Spanish property, and demanding its
immediate release. Mr. Calderon's application will be immediately
transmitted to the President for his decision upon it, with which
you will be made acquainted without unnecessary delay. In the mean
time you will take care that no proceeding of your Circuit Court,
or of any other judicial tribunal, places the vessel, cargo, or
slaves beyond the control of the Federal Executive.
"I am, sir, your obedient servant,
"JOHN FORSYTH."
I know not how, in decent language, to speak of this assertion of
the Secretary, that the minister of Her Catholic Majesty had claimed
the Africans "as Spanish property." In Gulliver's travels, he is
represented as traveling among a nation of beings, who were very
rational in many things' although they were not exactly human, and
they had a very cool way of using language in reference to deeds
that are not laudable. When they wished to characterize a
declaration as absolutely contrary to truth, they say the man has "
said tee thing that is not." It is not possible for me to express
the truth respecting this averment of the Secretary of State, but by
declaring that he "has said the thing that is not." This I shall
endeavor to prove by allowing what the demand of the Spanish
minister was, and that it was a totally different thing from that
which was represented.
But I wish first to beg your Honors' special attention to some thing
else in this remarkable letter of the Secretary of State. He says,
"In the mean time, you will take care that no proceeding of your
Circuit Court, or of any other judicial tribunal, places
the vessel, cargo, or slaves beyond the control of the Federal
Executive." Here is a ministerial officer of the Executive
Government, instructing the District Attorney, before the Judiciary
has acted upon the case, to take care that no proceeding of any
court places these men beyond reach of the Federal Executive. How
was he to do it? In what manner was an Executive officer to proceed,
so that neither the Circuit Court of the United States, nor any
state Court, could dispose of the vessel or the men in any manner,
beyond the control of the Federal Executive. A farther examination
of the correspondence in the conclusion, will show how it was
intended to be done. But I now come to inquire what was the real
demand of the Spanish minister, and to show what was the duty of the
Secretary of State on receiving such a demand.
Here we have the first letter of Mr. Calderon to Mr. Forsyth.
The name of this gentleman is illustrious in the annals of Spain,
and for himself personally, during his residence in this country, I
have entertained the most friendly and respectful sentiments. I have
enjoyed frequent interviews with him, and have found him
intelligent, amiable, learned, and courteous. I wish therefore to
say nothing respecting him that is personally disrespectful or
unkind. But it is my duty to comment with the utmost plainness, and
what perhaps your Honors will think severity, on his official letter
to the American Secretary of State. His letter begins:—
"NEW YORK, Sept. 6, 1839.
"The undersigned, envoy extraordinary and minister plenipotentiary
of her Catholic Majesty the Queen of Spain, has the honor of
calling the attention of the honorable John Forsyth, Secretary of
State of the United States, to a recent and very public occurrence
of which, no doubt, Mr. Forsyth is already informed, and in
consequence of which it is the imperious duty of the undersigned
to claim an observance of the law of nations' and of the treaties
existing between the United States and Spain. The occurrence
alluded to is the capture of the Spanish schooner 'Amistad.'
"This vessel sailed from Havana on the 28th of June, bound to
Guanaja, in the vicinity of Porto Principe, under the command of
her owner, Don Ramon Ferrer, laden with sundry merchandise. and
with fiftythree negro slaves on board; and, previous to her
departure, she obtained her clearance (alijo) from the custom
house, the necessary permit from the authorities for the
transportation of the negroes, a passport, and all the other
documents required by the laws of Spain for navigating a vessel
and for proving ownership of property; a circumstance particularly
important in the opinion of the undersigned."
Here your Honors will observe the same distinction of "merchandise
and Negroes," which was made by the District Attorney, showing the
universal sense of the difference between merchandise and persons.
He goes on:
"During the night of the 30th of said
month, or about daybreak on the following day, the slaves rose
upon the crew, and killed the captain, a slave of his, and two
sailors—sparing only two persons, after illtreating and wounding
them, namely, Don Jose Ruiz and Don Pedro Montes: of whom the
former was owner of fortynine of the slaves, and the latter of
the other four. These they retained, that they might navigate the
vessel and take her to the coast of Africa. Montes, availing
himself of his knowledge of nautical affairs, and under favor of
Divine Providence— 'the favor of Divine Providence!"—succeeded in
directing the vessel to these shores. He was spoken by various
vessels, from the captains of which the Negroes bought provisions,
but to whom, it seems, he was unable to make known his distress,
being closely watched. At length, by good fortune, he reached Long
Island, where the 'Amistad' was detained by the American brigof
war 'Washington,' Captain Gedney, who, on learning the
circumstances of the case, secured the Negroes, and took them with
the vessel to New London, in the state of Connecticut.
"The conduct of that commander and his subalterns toward the
unfortunate Spaniards has been that which was to be expected from
gentlemen. and from officers in the service of an enlightened
nation friendly to Spain. That conduct will be appreciated as it
deserves by my august sovereign, and by the Spanish government,
and will be reciprocated on similar occasions by the Spaniards— a
people ever grateful for benefits received." [We shall see some
proofs of Spanish gratitude, as we proceed in the case.]
"The act of humanity thus performed would have been complete, had
the vessel at the same time been set at liberty, and the Negroes
sent to be tried by the proper tribunal, and by the violated laws
of the country of which they are subjects. The under signed is
willing to believe that such would have been the case, had the
general government been able to interpose its authority in the
first instance, as it has probably done during the short interval
between the occurrence of this affair and the period when the
undersigned received an authentic statement of the facts."
This is what the Spanish minister demanded, that the vessel should
be set at liberty, and the Negroes sent to Cuba to be tried. And he
is so confident in the disposition the United States in favor of
this demand, that he even presumes the President of the United
States had already immediately dispatched an order to the Court in
Connecticut, to stay its proceedings and deliver up the Negroes, to
the Government of Spain.
What combination of ideas led to that conclusion, in the mind of Mr.
Calderon, I am not competent to say. He evidently supposes the
President of the United States to possess what we understand by
arbitrary power—the power to decide cases and to dispose of persons
and of property, mero motu, at his own discretion, and without the
intervention of any court. What led him to this imagination I am
unable to say. He goes on to say that the officers of the
Washington, in the service of the United States, have presented to
that incompetent Court,—the U. S. District Court in Connecticut—a
petition, claiming salvage: "a claim which, in view of existing
treaties, the undersigned conceives can. not be allowed in the sense
in which it is made." This is that most grateful nation! The
deliverers of these two Spaniards, the representative of a most
grateful nation insists, are not deserving of any recompense
whatever!
Now, I beg your Honors to see if there is, among all these
specifications, any one demand that corresponds with that which the
Secretary of State appears to have been made. He demands,
1st. That the vessel be immediately delivered up to her owner,
together with every article found on board at the time of her
capture by the Washington, without any payment being exacted on the
score of salvage, or any charges made, other than those specified in
the treaty of 1795, article 1st.
Yet he had already said the captain, and owner, Ferrer, was killed.
"2d. That it be declared that no tribunal in the United States has
the right to institute proceedings against, or to impose penalties
upon, the subjects of Spain, for crimes committed on board a Spanish
vessel, and in the waters of the Spanish territory."
Declared, by whom? By the President of the United States. Of course,
he does not demand that the " incompetent tribunal" in Connecticut,
before which the suit was brought, should declare this, but that the
President of the United States should issue a proclamation,
declaring that no court in this country could hold cognizance of the
case. Is there in this a demand that the negroes should be delivered
up as Spanish property? It is a direct protest against any
judicial tribunal taking cognizance of the case, and that the
President should issue a proclamation to prevent any such
proceedings whatever.
"3d. That the Negroes be conveyed to Havana, or be placed at the
disposal of the proper authorities in that part of Her Majesty's
dominions, in order to their being tried by the Spanish laws which
the, have violated; and that, in the mean time, they be kept in safe
custody, in order to prevent their evasion."
In what capacity does he demand that the President of the United
States should place himself? Is it a demand to deliver up these
people as property? No. Is it that they should deliver them to the
minister himself, as the representative of the Spanish government,
to be disposed of according to the laws of Spain ? No. It demands of
the Chief Magistrate of this nation that he should first turn
himself into a jailer, to keep these people safely, and then into a
tipstaff to take them away for trial among the slave traders of the
baracoons. Was ever such a demand made upon any government? He must
seize these people and keep them safely, and carry them, at the
expense of the United States, to another country to be tried for
their fires! Where in the law of nations there a warrant for such a
demand?
May it please your Honors—If the President of the United States had
arbitrary and unqualified power, he could not satisfy these demands.
He must keep them as a jailer; he must then send them beyond seas to
be tried for their lives. I will not recur to the Declaration of
Independence—your Honors have it implanted in your hearts—but one of
the grievous charges brought against George III. was, that he had
made laws for sending men beyond areas for trial. That was one of
the most odious of those acts of tyranny which occasioned the
American revolution. The whole of the reasoning is not applicable to
this case, but I submit to your Honors that, if the President has
the power to do it in the case of Africans. and vend them beyond
seas for trial, he could do it by the same authority in the case of
American citizens. By a simple order to the marshal of the district,
he could just as well seize forty citizens of the United States, on
the demand of a foreign minister, and send them beyond seas for
trial before a foreign court. The Spanish minister farther demands—
"4th. That if, in consequence of the intervention of the authorities
of Connecticut, there should be any delay in the desired delivery of
the vessel and the slaves, the owners both of the former be
indemnified for the injury that may accrue to them."
Now, how are all these demands to be put together? First, he demands
that the United States shall keep them safely, and send them to
Cuba, all in a lump, the children as well as Cinque and Grabbo.
Next, he denies the power of our courts to take any cognizance of
the case. And finally, that the owners of the slaves shall be
indemnified for any injury they may sustain in their property. We
see in the whole of this transaction, a confusion of ideas and a
contradiction of positions from confounding together the two
capacities in which these people are attempted to be held. One
moment they are viewed as merchandise, and the next as persons. The
Spanish minister, the Secretary of State, and every one who has had
anything to do with the case, all have run into these absurdities.
These demands are utterly inconsistent. First, they are demanded as
persons, as the subjects of Spain, to be delivered up as criminals,
to be tried for their lives, and liable to be executed on the
gibbet. Then they are demanded as chattels, the same as so many bags
of coffee, or bales of cotton, belonging to owners, who have a right
to be indemnified for any injury to their property.
I now ask if there is, in any one or in all those specifications,
that demand which the Secretary of State avers the Spanish Minister
had made, and which is the basis of the whole proceeding in this
case on the part of the Executive.
The letter of the Secretary, which is the foundation of the whole
proceeding of the District Attorney, in making the United States a
party, on the ground of a demand by the Spanish Minister for the
delivery of these people as property, " says the thing that is not."
The letter proceeds.
"In support of these claims, the undersigned invokes the law of
nations, the stipulations of existing treaties, and those good
feelings"—[good feelings, indeed, he might well say' where all the
feelings were in favor of his demand]—" so necessary to the
maintenance of the friendly relations that subsist between the two
countries, and are so interesting to both.
"The undersigned would be apprehensive of offending Mr. Forsyth by
supposing it in the least degree necessary to bring to his
recollection his own well known Construction (disposiciones) of the
law of nations, in a case analogous to the one under consideration."
This is what the logicians call argumentum ad hominem—an appeal,
first to the feelings of the individual, not to his sense of
justice. He then brings up to Mr. Forsyth his own construction of
the law of nations, as given in another case, which he deems
analogous. Perhaps I may be justified in conjecturing to what case
he alludes, and I will say that, if he alludes to any case of public
notoriety, I shall be able to show, before I close, that there is no
analogy to this case.
M. Calderon de la Barca then refers to several treaty stipulations
in support of his demand, and particularly the 8th, 9th, and 10th
articles of the treaty of 1795, continued in force by the treaty of
1819.
"ART. 8. In case the subjects and
inhabitants of either party, with their shipping, whether public
and of war, or private and of merchants, be forced, through stress
of weather, pursuit of pirates or enemies, or any other urgent
necessity, for seeking of shelter and harbor, to retreat and enter
into any of the rivers, bays, roads, or ports, belonging to the
other party, they shall be received and treated with all humanity,
and enjoy all favor, protection, and help; and they shall be
permitted to refresh and provide themselves, at reasonable rates,
with victuals and all things needful for the subsistence of their
persons, or reparation of their ships, and prosecution of their
voyage; and they shall no ways be hindered from returning out of
the said ports or roads, but may remove and depart when and
whither they please, without any let or hindrance."
This is a provision for vessels with their owners, driven into port
by distress. Who was the Spanish owner here with his ship? There was
none. I say the Africans were here with their ship. If you say the
original owner is referred to, in whose name the ship's register was
given, he was dead, he was not on board, and would not claim the
benefit of this article. The vessel either belonged to the Africans,
in whose possession it was found, and who certainly kind what is
everywhere the first evidence of property, or there was no person to
whom this article could apply, and it was not casus foederis. The
truth is, this article was not intended to apply to such a case as
this, but to the common case, in regard to which it has doubtless
been carried into execution hundreds of times, in meeting the common
disasters of maritime life.
The Africans, who certainly had the prima facie title to the
property, did not bring the vessel into our waters themselves, but
were brought here against their will, by the two Spaniards, by
stratagem and deception. Now, if this court should consider, as
the courts below have done, that the original voyage from Lomboko,
in Africa, was continued by the Spaniards in the Amistad, and that pursuing
that voyage was a violation of the laws of the United States, then
the Spaniards are responsible for that offense. The deed begun in
Africa was not consummated according to its original intention,
until the Negroes were landed at their port of final destination
in Porto Principe. The clandestine landing in Havana, the unlawful
sale in the barracoons, the shipment on board the Amistad, were all parts of the
original transaction. And it was in pursuit of that original
unlawful intent that the Spaniards brought the vessel by stratagem
into a port of the United States. Does the treaty apply to such
voyages? Suppose the owner had been on board, and his voyage
lawful, what does the treaty secure to him? Why, that he might
repair his ship, and purchase refreshments, and continue his
voyage. Ruiz and Montes could not continue the voyage. But,
suppose the article applicable, and what were the United States to
do ? They must place those on board the ship in the situation they
were in when taken, that is, the Africans in possession, with the
two Spaniards as their prisoners, or their slaves, as the case
might be; the Negroes as masters of the ship, to continue their
voyage, which on their part was certainly lawful.
If any part of the article was applicable to the case it was in
favor of the Africans. They were in distress, and were brought
into our waters by their enemies' by those who sought, and who are
still' seeking, to reduce them from freedom to slavery, as a
reward for having spared their lives in the fight. If the good
offices of the government are to be rendered to the proprietors of
shipping in distress, they are due to the Africans only, and the
United States are now bound to restore the ship to the Africans,
and replace the Spaniards on board as prisoners. But the article
is not applicable at all. It is not a casus federis. The parties
to the treaty never could have had any such case in view.. The
transaction on board of the vessel after leaving Havana entirely
changed the circumstances of the parties, and conferred rights on
my most unfortunate clients, which cannot but be regarded by this
honorable court.
Next we have article 9:
ART. 9. All ships and merchandise, of what nature so ever, which
shall be rescued out of the hands of any pirates or robbers on the
high seas, shall be brought into some port of either state, and
shall be delivered to the custody of the officers of that port, in
order to be taken care of, and restored entire to the true
proprietor, as soon as due and sufficient proof shall be made
concerning the property thereof."
Was this ship rescued out of the hands of pirates and robbers? Is
this Court competent to declare it? The Courts below have decided
that they have no authority to try, criminally, what happened on
board the vessel. They have then no right to regard those who
forcibly took possession of the vessel as pirates and robbers. If
the sympathies of Lieutenant Gedney, which the Secretary of State
says had become national, had been felt for all the parties, in
due proportion to their sufferings and their deserts, who were the
pirates and robbers, Were they the Africans? When they were
brought from Lomboko? in the Tecora, against the laws of Spain,
against the laws of the United States, and against the law of
nations, so far as the United States, and Spain, and Great
Britain, are concerned, who were the robbers and pirates? And when
the same voyage, in fact, was continued in the Amistad, and the Africans were
in a perishing condition in the hands of Ruiz, dropping dead from
day to day under his treatment, were they the pirates and robbers?
This honorable Court will observe from the record that there were
fiftty-four Africans who left the Havana. Ruiz says in his libel
that nine had died before they reached our shores. The marshal's
return shows that they were dying day after day from the effects
of their sufferings. One died before the Court sat at New London.
Three more died before the return was made to the Court at
Hartford—only seventeen days—and three more between that and
November. Sixteen fell victims before November, and from that time
not one has died. Think only of the relief and benefit of being
restored to the absolute wants of human nature. Although placed in
a condition which, if applied to forty citizens of the United
States, we should call cruel, shut up eighteen months in a prison,
and enjoying only the tenderness which our laws provide for the
worst of criminals, so great is the improvement of their condition
from what it was in the hands of Ruiz, that they have perfectly
recovered their health, and not one has died; when, before that
time, they were perishing from hour to hour.
At the great day of accounts, may it please the Court, who is to
be responsible for those sixteen souls that died I Ruiz claims
those sixteen as his property, as merchandise. How many of them,
at his last hour, will pass before him and say, " Let me sit heavy
on thy soul tomorrow!"
Who, then, are the tyrants and oppressors against whom our laws
are invoked? Who are the innocent sufferers, for whom we are
called upon to protect this ship against enemies and robbers
Certainly not Ruiz and Montes.
But, independently of this consideration, the article cannot apt
ply to slaves. It says ships and merchandise. Is that language
applicable to human beings? Will this Court so affirm? It says
they shall be restored entire. Is it a treaty between cannibal
nations, that a stipulation is needed for the restoration of
merchandise entire, to prevent parties from cutting off the legs
and arms of human beings before they are delivered up? The very
word entire in the stipulation is of itself a sufficient exclusion
of human beings from the scope of the article. But if it was
intended to embrace human beings, the article would have included
a provision for their subsistence until they are restored, and an
indemnification for their maintenance to the officers who are
charged with the execution of the stipulation. And there is
perhaps needed a provision with regard to the institutions of the
free states, to prevent a difficulty in keeping human beings in
the custom house, without having them liable to the operation of
the local law, the habeas corpus, and the rights of freedom.
But with regard to article 9, I will speak of my own knowledge,
for it happened that on the renewal of the treaty in 1819, the
whole of the negotiations with the then minister of Spain passed
through my hands, and I am certain that neither of us ever
entertained an idea that this word merchandise was to apply to
human beings.
Mr. Calderon also quotes article 10.
"ART. 10. When any vessel of either
party shall be wrecked, foundered, or otherwise damaged, on the
coasts or within the do minion of the other, their respective
subjects or citizens shall receive, as well for themselves as for
their vessels and effects, the same assistance which would be due
to the inhabitants of the country where the damage happens, and
shall pay the same charges and dues only as the said inhabitants
would be subject to pay in a like case; and if the operations of
repair should require that the whole or any part of the cargo be
unladen, they shall pay no duties, charges, or fees, on the pelt
which they shall relayed and carry away."
This article, again, has nothing to do with the case. The Amistad was neither wrecked
nor foundered, nor otherwise damaged. She came into our waters
voluntarily, so far as the Spaniards were concerned, but
involuntarily, so far as concerned the Africans, who were in
possession of the vessel. They were intentionally prosecuting a
voyage to Africa, but were brought to our shores by deception, and
against their wills. This is not casus federis. The treaty has no
application here. But if, by any latitude of construction, it
could be applied, its benefits belong to the Africans, for they
were pursuing a lawful voyage, and not to the Spaniards, who were
on an unlawful voyage, in the prosecution of the slave trade.
But the article says the same assistance shall be afforded that
our own citizens would be entitled to receive in like
circumstances. Let us apply the rule. Suppose the Amistad had been a vessel of
the United States, owned and manned by citizens of the United
States, and in like circumstances. Say it was a Baltimore clipper,
fitted for the African slave trade, and having performed a voyage,
had come back to our shores, directly or indirectly, with
fiftyfour African victims on board, and was thus brought into
port—what would be the assistance guarantied by our laws to
American citizens, in such circumstances? The captain would be
seized, tried as a pirate, and hung! And every person concerned,
either as owners or on board the ship, would be severely punished.
The law makes it a capital offense for the captain, and no appeal
to this Court would save him from the gibbet. Is that the
assistance which the Spanish minister invokes for Ruiz and Montes?
That is what our laws would secure to our own citizens in like
circumstances. And perhaps it would be a reward nearer their
merits than the restoration of these poor Negroes to them, or
enabling them to complete their voyage.
But my clients are claimed under the treaty as merchandise,
rescued from pirates and robbers. Who were the merchandise, and
who were the robbers? According to the construction of the Spanish
minister, the merchandise were the robbers, and the robbers were
the merchandise. The merchandise was rescued out of its own hands,
and the robbers were rescued out of the hands of the robbers. Is
this the meaning of the treaty ? Will this Court adopt a rule of
construction in regard to solemn treaties that will sanction such
conclusions, There is a rule in Vattel that no construction shall
be allowed to a treaty which makes it absurd. Is any thing more
absurd than to say these forty Africans are robbers, out of whose
hands they have themselves been rescued? Can a greater absurdity
be imagined in construction than this, which applies the double
character of robbers and of merchandise to human beings?
May it please your Honors, there is not one article of the treaty
that has the slightest application to this case, and the Spanish
minister has no more ground for appealing to the treaty, as a
warrant for his demand, than he has for relying on the law of
nations.
The next argument that follows is so peculiar that I find it
difficult to give a distinct idea of its purpose or application.
He says,
"The crime in question is one of those which, if permitted to pass
unpunished, would endanger the internal tranquility and the safety
of the island of Cuba, where citizens of the United States not
only carry on a considerable trade, but where they possess
territorial properties which they cultivate with the labor of
African slaves. These, on learning that the crime alluded to had
been committed with impunity, (and their friends would not fail to
acquaint them with the fact) would lose none of the opportunities
for attempting revolt and evasion, which are afforded by the
frequent and daily necessity of conveying Negroes by sea from one
quarter of the island to another; and to guard against this it
would be necessary to use additional precautions at a great
expense."
I believe, may it please the Court, that this is not a good
argument before this court to determine questions of law and
justice by the consideration that there are American citizens who
own plantations in the island of Cuba, which they cultivate by the
labor of slaves. They own their plantations and slaves there,
subject to the laws of Spain, which laws declare the African slave
trade to be felony. The Spanish minister has no right to appeal to
our courts to pass a particular sentence between parties in a
suit, by considerations of their personal interest, or that of
other American citizens in the Island of Cuba. What would become
of the liberties of this nation if our courts are to pass sentence
between parties, upon considerations of the effect it may have
upon the interest of American citizens, scattered as they may be
in all parts of the world? If it is a valid consideration when
applied to Cuba and the American owners of sugar estates and
slaves there, it applies equally to all other countries where
American citizens may have property; to China, Hindostan, or the
Feejee Islands. It was no proper argument for the Spanish minister
to urge upon the American Secretary of State. It was undoubtedly
calculated and designed to influence his sympathy in the case—that
sympathy with one of the parties which he says had become national
It was calculated to excite and to influence the Secretary of
State not only by the effect to be produced in the island of Cuba,
but perhaps also by a reward to certain interests nearer home. But
was that JUSTICE? Was that a ground on which courts of justice
will decide cases? I trust not.
There are a few portions of this letter, which I had rather your
Honors would read when you are together in consultation, than to
read them myself in this place. I will not trust myself to comment
upon them as they deserve. I trust that your Honors, in the
pursuit of JUSTICE, will read them, as the document will be in
your hands, and you will see why I abstain from doing it. Mr.
Calderon proceeds to say,
"If, on the other hand, they should be condemned by the
incompetent tribunal that has taken upon itself to try them as
pirates and assassins, the infliction of capital punishment in
this case would not be attended with the salutary effects had in
view by the law when it resorts to this painful and terrible
alternative, namely, to prevent the commission of similar
offenses. In such case, the indemnification I officially ask for
the owners would be a very slender compensation; for, if the
property remained unimpaired, as it would remain, the satisfaction
due to the public would not be accorded."
And that is a reason why the President of the United States was to
issue his lettrede cachet, and send these unfortunate individuals
to Cuba. I abstain now from reading the subsequent passages. He
concluded by saying,
"In the islands above mentioned the citizens of the United States
have always met with a favorable reception and kind treatment. The
Spanish Government, for the protection of their property, would
immediately accord the extradition of any slaves that might take
refuge there from the southern states. Being itself exact in the
observance of treaties, it claims the more justly the execution of
them, and a reciprocal good correspondence, from a nation, the
ally and neighbor of Spain, to whom so many proofs have been
afforded of the high degree in which her friendship is esteemed."
They will readily yield fugitive slaves! Was this an argument, I
ask the honorable Court, to be addressed to the Secretary of
State? Is it upon these principles that cases are to be decided?
Is it by these considerations that the action of governments? to
be determined? Shall these men be given up on the offer of an
equivalent? "If you will deliver these Africans to me, for whose
blood all the slavetraders of Cuba thirst, and any slave from the
south shall make his escape and came to Cuba, we will readily
deliver him up." What is this argument as addressed to the
Secretary of State I It may be a very easy thing for the Governor
at Havana to seize a fugitive southern slave, or a pretended
fugitive, as the case may be, and put him on board a vessel and
send him to one of our Southern states. The learned Attorney
General, I think, read some authorities to show that this Governor
has royal powers, about equal to those of the King, and it may be
easy for him to seize any man, black or white, slave or free, who
may be claimed as a slave, and send him beyond seas for any
purpose. But, has the President of the United States any such
powers Can the American Executive do such things? If he is to do
them, I should hope, at least, that it might be under treaty
stipulations rather more adapted to the object than these. It was
going quite far enough, I should think, to require the President
of the U. S. to keep these men safely, and send them back at the
expense of this nation, without making this—what shall I call it?
I will not undertake to qualify it in words—this offer to send
back the fugitive slaves of the South as an equivalent, provided
the President will consent to deliver up these MEN, by a despotic
act, to satiate the vengeance of the slave traders at Havana.
I have now, may it please the Court, examined at great length, and
with tedious detail, the letter of the Spanish minister demanding
the interposition of the national Executive to restore these
unfortunate Africans to the island of Cuba. And now I may in.
quire of your Honors, what, in your opinion, was the duty of the
Secretary of State, on receiving such a letter. And in the first
place, what did he do?
His first act was, to misrepresent the demand, and to write to the
District Attorney in Connecticut, directing him to pursue a claim
for the possession of these people on behalf of the United States,
on the ground that the Spanish minister had demanded their
delivery to him, as the property of Spanish subjects, and ordering
him to take care that no court should place them beyond the
control of the Executive. That is what he did. And the consequence
is the case now before the court. The Attorney of the United
States pursued his orders. He stated, in his claim before the
District Court, that the Spanish minister had demanded their
restoration as property; and then' as if conscious that this claim
might not secure the other purpose, of keeping them at all events
within the control of the Executive, he added, of his own head,
(for it does not appear that he had any instructions on this
point,) a second count, claiming, on behalf of the United States,
that if the court should find they were not slaves by the laws of
Spain, but that they were brought to our shores in violation of
the act of Congress for the suppression of the slave trade, then
they should be placed at the disposal of the President, to be sent
to Africa, according to the provisions of that act. This count was
undoubtedly added in consequence of the order not to let them be
placed beyond the control of the Executive. In a subsequent term
of the court, he filed a new libel, in which this alternative
demand was omitted. Why was that done? I can conceive no other
reason than that he had received such instructions from the
Executive.
Those instructions do not appear among the printed documents but
it does not follow that none were given, for the communication of
the President, in answer to the call of the House of
Representatives, was not a full one, as I know of my own
knowledge. The demand was for all information not incompatible
with the public interest, and under that proviso many things were
kept back. But there can be no doubt that it was for the purpose
of complying with the first order of the District Attorney
inserted in the second count, and that it was by the instructions
of the department he afterward withdrew it.
[Mr. Baldwin. The count was not withdrawn. A new libel was
entered, having only one count, but the first libel was not
withdrawn.] Very well—it amounts to this: that the Executive did
not choose to hold itself responsible for that construction of the
act of Congress. This appears from the appeal. What have the
United States appealed from? Why, from n decree of the court,
giving them precisely what they had claimed by the District
Attorney. The Attorney knew that the libel grounded on the demand
of the Spanish minister, (ostensibly, for I have shown that it was
a falsification of the terms of that demand by the Secretary of
State,) was not sufficient to place the Africans beyond the
control of the Executive, in a certain alternative, and therefore
he calls upon the Court to put them in the hands of the President,
to be sent to Africa—that is, to complete their own voyage.
Well, the District Court investigated the case, and dissipated
entirely the pretension that these Africans could be claimed in
any way as merchandise. They went the length of declaring that the
only lading on board, the boy Antonio, concerning whom there was
the slightest pretext of a claim that he was a slave, should be
delivered up to the Spanish consul, on behalf of the
representatives of his late owner, Captain Ferrer. The United
States do not appeal from that decision, and there has been no
appeal, although we might have appealed with propriety. And I
confess that, had I been of counsel in that stage of the
proceedings, 1 should have been much disposed to appeal, on the
ground that there was no article of the treaty which has any thing
to do with the case. I conceive that this part of the decree of
the District Court is not warranted by any law or treaty whatever.
But I do not desire to argue that question now, for I perceive
that the district judge, in giving his decision, places it partly
on the ground that the boy is desirous of returning. And as
volenti non fit injuria, I reconcile my mind to that part of the
decision, for we could certainly have no possible motive to
interfere with the wishes of the boy. If he really has the desire
to return to slavery in Cuba, it would be far from my desire to
interfere with his wishes, however strange and unnatural I might
deem them to be. But 1 must, at the same time, as an individual,
protest against his delivery by any compulsion, or on any ground
of obligation in the treaty; for I must maintain, that there is no
one of the articles in the treaty cited that has any application
whatever to the ease.
And now, may it please your Honors, so strange and singular is
every thing that happens, connected with this most singular case,
I am informed that, after all, this boy has not been sent to Cuba,
notwithstanding his anxiety to go, and the desire of the Spanish
consul for his restoration, with a decree of the Court agreeable
to his demand. I am informed that he has remained a whole year in
prison with the Africans, and is, at this moment, in the custody
of the marshal, by what warrant or process I know not, or at whose
expense.
The reason for this extended analysis of the demand by the Spanish
minister is, that we may be prepared to inquire what answer he
ought to have received from the American Secretary. I aver, that
it was the duty of the Secretary of State instantly to answer the
letter, by showing the Spanish minister that all his demands were
utterly inadmissible, and that the government of the United States
could do nothing of what he required. It could not deliver the
ship to the owner, and there was no duty resting on the United
States to dispose of the vessel in any such manner. And as to the
demand that no salvage should be taken, the Spanish minister
should have been told that it was a question depending exclusively
on the determination of the courts, before whom the case was
pending for trial according to law. And the Secretary aught to
have shown Mr. Calderon, that the demand for a proclamation by the
President of the United States, against the jurisdiction of the
courts, was not only inadmissible but offensive —it was demanding
what the Executive could not do, by the constitution. It would be
the assumption of a control over the judiciary by the President,
which would overthrow the whole fabric of the constitution; it
would violate the principles of our government generally and in
every particular; it would be against the rights of the Negroes,
of the citizens, and of the States.
The Secretary ought to have done this at once, without waiting to
consult the President, who was then absent from the city. The
claim that the negroes should be delivered was equally
inadmissible with the rest; the President has no power to arrest
either citizens or foreigners. But even that power is almost
insignificant compared with that of sending men beyond seas to
deliver them up to a foreign government. The Secretary should have
called upon the Spanish ambassador to name an instance where such
a demand had been made by any government of another government
that was independent. He should have told him, that such a demand
was treating the President of the United States, not as the head
of a nation, but as a constable, a catch pole—a character that it
is not possible to express in gentlemanly language. That i8 what
this demand makes of the President of the United States.
The Secretary should also have set the Spanish Minister right with
regard to the authorities before whom the question was pending. He
should have told him that they were not the authorities of the
state of Connecticut but of the United States, the courts of the
Union in the state of Connecticut. He should have corrected this
mistake of the minister at the beginning. It was a real
misapprehension, which has continued through the whole proceeding
to the present time, and it ought to have been corrected at first.
And what is still more remarkable, the same mistake of calling it
the court of Connecticut was made by Mr. Forsyth himself long
after.
But what did the Secretary do in fact? He barely replies to Mr.
Calderon, that he had sent his letter to the President for his
consideration, and that "no time will be needlessly lost, after
his decision upon the demand it prefers shall have reached me, in
communicating to you his views upon the subject."
And now, from that day to this, the Secretary of State has never
answered one of these demands, nor arrested one of these
misapprehensions, nor asserted the rights and the honor of the
nation against one of these most extraordinary, inadmissible, and
insolent demands. He has degraded the country, in the face of the
whole civilized world, not only by allowing these demands to
remain unanswered, but by proceeding, I am obliged to say,
throughout the whole transaction, as if the Executive were
earnestly desirous to comply with every one of the demands. In the
very misrepresentations of those demands, in his instructions to
the District Attorney, under which this case is brought here, why
does he take such a course? The Spanish Minister pronounced the
Court before which the Secretary brought the question, an
incompetent tribunal—and this position has been maintained by the
Legation of Spain down to this very month, that a letter of
Chevalier d'Argaiz officially protests against the jurisdiction of
the courts before which the Secretary professes to be prosecuting
the claim of this very minister!
Why does the Spanish Minister persist in such inadmissible
pretensions? It is because they were not met in limine in a proper
manner—because he was not told instantly, without the delay of an
hour, that this Government could never admit much claims, and
would be offended if they were repeated, or any portion of them.
Yet all these claims, monstrous, absurd and inadmissible as they
are, have been urged and repeated for eighteen months, upon our
Government, and an American Secretary of State evades answering
any of them—evades it to such an extent that the Spanish Minister
reproaches him for not meeting his arguments.
The demand of Mr. Calderon was dated September 6. The order of the
Secretary to the District Attorney, in regard to the suit, was
dated September 11, in which he says that ''a communication has
been addressed to this department by the Minister of Her Catholic
Majesty, CLAIMING TEE VESSEL, CARGO, AND BLACKS ON BOARD, As
SPANISH PROPERTY, and demanding its immediate release." On the 23d
of September, the Secretary writes to the Spanish Minister as
follows:
SIR: In the examination of the case
of the Spanish schooner "Amistad," the only evidence at present
within reach of this department is that presented by the ship's
paper; and the proceedings of the court of inquiry held by a
district judge of Connecticut, on board the schooner, at the time
the Negroes in whose possession she was found, were imprisoned for
the alleged murder of the captain and mate of the vessel. If you
have any other authentic documents relating to the question or
evidence of facts which can be useful to a proper understanding of
it, I have the honor to request by the direction of the President,
that you will communicate them to me with as little delay as
practicable.
Here the Secretary reiterates the error of the Spanish minister,
instead of correcting it, with regard to the character of the
Court before which the case was pending. The Secretary of State
calls the United States District for Connecticut "a District Court
of Connecticut." The Spanish Minister could not be expected to
acquire a correct understanding of the case, unless he was
informed, but here he has his error confirmed.
The Secretary further requests the ambassador, if he has any
farther documents, "that you will communicate them to me." What
had he to do with this evidence? The Spanish minister had made a
certain demand upon the government of the United States. Whether
it was what it appears to be, or whether it was what the Secretary
represented it to be in his orders to the District Attorney, it
was no part of the business of the American Secretary of State to
look after the evidence. Still, if he had requested the minister
to communicate the evidence to the Court, it might not have been
exactly improper, but only officious. If the Spanish Minister
chose to go into our courts in support of the private claims of
Spanish subjects, he could do it, and it was his business to bring
forward the proper evidence in support of his claim. Why, then,
does the Secretary call upon him to furnish these documents to the
Executive Department? Your Honors will judge whether this letter
is or is not evidence of a determination then existing on the part
of the Executive, to decide this case independently of the
judiciary, and ex parte.
Mr. Calderon replies that he has no other evidence to furnish. The
next document is the letter of his successor, the Chevalier
d'Argaiz:
NEWYORK October 3, 1839.
The undersigned, envoy extraordinary and minister plenipotentiary
of Her Catholic Majesty, has the honor of commencing his official
correspondence with you, sir, by soliciting an act of justice,
which, not being in any way connected with the principal question
as yet remaining unsettled by the cabinet, relative to the
Negroes, found on board the schooner Amistad on her arrival on these coasts, he does
not doubt will be received by you in the manner which he has every
reason to expect, from the circumstance that all preceding acts of
the department under your charge have been dictated by the
principles of rectitude and reciprocity.
Her Majesty's viceconsul at Boston, under date of the 24th of
September last, says, among other things:
"As it appears from the papers of the schooner that she, as well
as her cargo, are exclusively Spanish property, it seems strange
that the Court of New London has not yet ordered the delivery of
one or both to the owners, if they are present, or to me, as their
agent, born in that part of the Union"—[This is a mistranslation;
it means the official agent in that part of the Union]— "agreeably
to the articles of the treaty now in force between the two
countries. The delay in the delivery would not be of so much
consequence to the proprietors if the vessel did not require
immediate repairs, in order to preserve her from complete
destruction, and if it were not material that a large part of the
cargo should be sold on account of its bad condition.
Here we see the same unfortunate misapprehension continued. The
new Spanish minister calls upon the Secretary of State to put the
"Court of New London" into speedy action, to lessen the danger of
loss to the proprietors by delay, and the Secretary of State takes
no pains to correct the error.
On the 24th of October, the Secretary of State wrote again to Mr.
Argaiz, on another subject, which is not now before this
Court,—the arrest of Ruiz and Montes, at the suit of some of the
Africans, in the courts of the State of New York. Mr. Argaiz
protested against the arrest, and claims "the interposition of the
Executive in procuring their liberation, and indemnity for the
losses and injury they may have sustained. To that the Secretary
replies:
"It appears from the documents
accompanying the note of the Chevalier d'Argaiz, that the two
Spanish subjects referred to were arrested on process issuing from
the Superior Court of the city of New York, at the suit of, and
upon affidavits made by certain colored men, natives of Africa,
for the purpose of securing their appearance before the proper
tribunal, to answer for wrongs alleged to have been inflicted by
them upon the persons of the said Africans; and, consequently,
that the occurrence constitutes a simple case of resort by
individuals against others to the judicial courts of the country,
which are equally open to all without distinction, and to which it
belongs exclusively to decide, as well upon the right of the
complainant to demand the interposition of their authority, as
upon the liability of the defendant to give redress for the wrong
alleged to have been committed by him. This being the only light
in which the subject can be viewed, and the constitution and laws
having secured the judicial power against all interference on the
part of the Executive authority, the President, to whom the
Chevalier d'Argaiz's note has been communicated, has instructed
the undersigned to state, that the agency of this government to
obtain the release of Messrs. Ruiz and Montes cannot be afforded
in the manner requested by him. The laws of the state of New York,
of which the constitution and laws of the United States and their
treaties with foreign powers form a part, afford to Messrs. Ruiz
and Montes all the necessary means to procure their release from
imprisonment, and to obtain any indemnity to which they may be
justly entitled, and therefore would render unnecessary any agency
on the part of this department for those purposes."
There is a complete answer to all these demands of the Spanish
legation. "The constitution and laws have secured the judicial
power against All interference of the Executive authority." That
is very true. The laws of the state of New York, of which the
constitution and laws of the United States and their: treaties
with foreign powers form a part, afford to Messrs. Ruiz and Montes
all the necessary: means for the security of their rights, and
therefore "render unnecessary any agency on the part of" the
Executive. That is very correct. There is a perfect answer, worthy
of an American statesman But is that all? No. The Secretary finds,
after all these disclaimers, one Executive power yet in reserve,
which may be put forth to take part against poor Africans, and at
least afford evidence of the national sympathy. The Secretary
says:
"But inasmuch as the imprisonment of
those persons connects itself with another occurrence which has
been brought under the President's consideration, in consequence
of a correspondence between the Spanish legation and this
department, instructions (of which a copy is inclosed) have been
given to the Attorney of the United States for the District of New
York to put himself in communication with those gentlemen, to
offer them his advice (and his aid, if necessary) as to any
measure which it may be proper for them to adopt to procure their
release, and such indemnity as may be due to them. under our laws,
for their arrest and detention."
Because the case "connects itself with another occurrence." What
is all this? The independence of the judiciary is first firmly and
bravely sustained. It is a question of private rights between
parties, with which the executive has nothing to do, and the
Government of the United States has no power to interpose. And
then the President instructs the District Attorney, the law
officer of the government, to "put himself in communication" with
one of the parties, to throw all the weight and influence of the
government on their side, in order to secure a favorable decision
for them in the Courts of the state of New York. May it please
your Honors, I will not here enter into an inquiry of the effect
of this interference of the Executive of the United States with
the Courts of a State, or the extent and operation of the
principle which would authorize such interference. I really do not
know, my imagination cannot present to me the compass of its
effects on the rights of the people of the United States. again
ask the attention of this honorable court to this subject. The
letter begins with a declaration of the independence of the
judiciary of the State of New York, the sufficiency of the laws to
secure justice and the incompetency of the Executive to interfere;
and yet, because the case connects itself" with another case in
which the Executive has considered itself entitled to act, the
whole influence of the Government is brought to bear upon the
judicial authorities of the State of New York.
I said the Secretary of State had never to this hour undertaken to
contest any one of the actual demands of Mr. Calderon, as
preferred in his letter of 5th September. He had suffered both Mr.
Calderon and his successor to remain under the impression that if
their demands were not complied with, for the kidnapping of these
people by the Executive, it was not for the want of a will to do
it, or of a disposition to contest the claims put forth in so
extraordinary a manner upon our government. Let us now see how Mr.
Argaiz himself regarded the conduct of the Secretary. On the 5th
of November, he writes again to Mr. Forsyth, acknowledging the
receipt of Mr. Forsyth's letter, inclosing the instructions of the
Attorney of the United States for the District of New York, " that
he should offer to these persons his advice and assistance, if
needed, with regard to the most proper means of obtaining their
liberty." He says:
"Although this answer did not
entirely satisfy the desire expressed by the undersigned in the
note of October 22d to which he was impelled by the sense of his
duty, and by the terms of existing treaties, yet he received it
with pleasure and with thanks; with pleasure, because he saw that
the Secretary of State did not refuse to admit the reasons which
the undersigned had the honor to state in that note; and with
shanks, because he saw that the sentiments which had urged him to
request with warmth a prompt reply, had been kindly interpreted.
The undersigned in consequence, went immediately to New York,
where he visited on the 29th ultimo, the Attorney of the United
States with whom he had a long conversation, which left him
delighted with the affability and courtesy of Mr. Butler, although
he did not have the happiness to remain satisfied as to the
principal matter, as that officer of justice declared that he
could find no other means of obtaining the liberty of Ruiz Montes
being already free) than by waiting the determination of the court
or courts, against the jurisdiction of which the undersigned had
already especially protested."
The Spanish ambassador was not satisfied with the letter, and yet
he received it with pleasure, "because he saw that the Secretary
did not refuse to admit his reasons." How is that? The Secretary
of State took no measures to repel the improper demand made, or to
correct the erroneous idea cherished by the Spanish legation; and
this neglect Mr. Argaiz construes as a virtual admission of his
'reasons' Why should he not so construe it? Here is also a renewal
of the protest, which has uniformly been maintained by the
legation, against the right of any court in this country to
exercise jurisdiction in the case. And yet this suit is carried on
by the Executive, as in pursuance of a demand by the Spanish
minister. Mr. Argaiz then refers to two personal conferences which
he had with the Secretary, and he is well persuaded that what he
had said, together with the indications in his note of October 22,
would have been sufficient to convince " one so enlightened and
discriminating as the Secretary, of the justice of his claim; that
this persuasion has gained strength, from the circumstance that
the Secretary of State has made no attempt in his answer to oppose
those arguments, but has confined himself to endeavoring to
explain the course of civil causes in the courts of this country,
in order to show that the government of the United States could
not interfere in the manner which her Catholic Majesty's
representative requested; it becomes necessary to advance farther
arguments, at the risk of being importunate."
And a little farther on, after adverting to the various excuses
and palliations which seem to have been presented in these
confidential conferences, for not seizing these Negroes and
sending them to Cuba by the Executive power, in which he says: "it
is allowed by the whole world" that "petitions or accusations of
slaves against their masters cannot be admitted in a court,', he
concludes by asking—
"As the incompetence of the courts of
the United States, with regard to this matter, is so clearly
demonstrated, is there no power in the Federal Government to
declare it so, and to interpose its authority to put down the
irregularity of these proceedings, which the court is not
competent to perform? It seems impossible that there should be no
such power; but unfortunately there is none"
"Her Catholic Majesty's envoy extraordinary and minister
plenipotentiary, nevertheless, seeing that his previous protest
did not produce the result which he expected, renews it now,
declaring this government responsible for the consequences which
may grow out of this affair; and he asks the Secretary of State
whether or not he possesses sufficient authority and force to
carry into fulfillment the treaty of 1795. If he has not, then
there cad be no treaty binding on the other party."
He thinks it impossible there should not be a power in the
Federal Government to put down these proceedings of the courts,
but he admits that unfortunately there is no such power, and then
asks the Secretary of State if he cannot find a power, somewhere,
to take the matter out of the hands of the judiciary altogether.
And if not, he shall hold this Government responsible for the
consequences, for if it has not power to fulfill the treaty, no
treaty is binding on either party.
On the 26th of November, the trial of the case having been
postponed by the District Court from November to January, he
writes again, that he is under the necessity of renewing his
former complaints.
"To the first complaint, made by his
predecessor, on the 6th September last, nothing more than an
acknowledgment of its receipt was thought necessary, which was
made on the l6th of the same month. In the answers which the
Secretary has pleased to give to the notes of the undersigned, of
the 22d of October, and the 5th of November last, that gentleman
did not think proper to combat the argument advanced. Whose which
the undersigned now proposes to present will be no less powerful,
and he hopes will be such that the Secretary will not be able .o
deny their Justice.
"The undersigned has the honor to ask in what law, act, or
statute, does the said court base its right to take cognizance of
the present case? There can be no doubt as to the reply: on no
law, act, or statute."
Here he denies again that the Court, before which the Secretary
of State had made a demand with the averment that it came from the
Spanish minister, has any power to take cognizance of the case. He
says there is no law, act, or statute for it, and then he goes
on:—
"For, if any such existed, it is, or
should be, anterior or posterior to the treaty of 1795. If
anterior, it clearly became annulled, because a treaty is one of
the superior laws of the State, or the treaty should never have
been signed, or ratified, or sanctioned by the legislative bodies.
If posterior to the treaty, the legislative bodies, in drawing it
up, discussing it, and voting on it, must have seen that it was at
variance with a subsisting treaty, which was already a law of the
Union. All which serves to show that, in the existing state of the
laws, this affair cannot and should not be decided by the common
law, but by the international law."
That is to say, the treaty stipulation has taken away the power
of the courts of the United States to exercise jurisdiction
between parties. Is that a doctrine to be heard by the Secretary
of State of the United States from a foreign ambassador without
answering it? The ambassador proceeds to urge that "if the General
Government of the Union had decided this matter of itself,
gubernativamente"—here is a word, used several times in this
correspondence, that no American translator has been able to
translate into our language. It means, by the simple will or
absolute fiat of the Executive, as in the case of the lettres de
cachet—or a warrant for the BASTILE—that is what the Spaniard
means by gubernativamente, when he asks the Executive of the
United States, by his own fiat, to seize these MEN, wrest them
from the power and protection of the courts, and send them beyond
seas! Is there any such law at Constantinople? Does the Celestial
Empire allow a proceeding like this? Is the Khan of Tartary
possessed of a power competent to meet demands like these? I know
not where on the globe we should look for any such authority,
unless it be with the Governor General of Cuba with respect to
Negroes.
"If the General Government had proceeded gubernativamente" —it is
not necessary now to consider what would have followed. "But,"
says the Chevalier d'Argaiz, "very different, however, have been
the results; for, in the first place the treaty of 1795 has not
been executed, as the legation of her Catholic Majesty has
solicited; and the public vengeance has not been satisfied."
"The public vengeance!" What public vengeance? The vengeance of
African slave traders, despoiled of their prey and thirsting for
blood! The vengeance of the barracoons! This "public vengeance" is
not satisfied. Surely, this is very lamentable. Surely, this is a
complaint to be made to the Secretary of State of this government.
"For," says he, "be it recollected that the legation of Spain does
not demand the delivery of slaves, but of assassins."
How is it possible to reconcile this declaration of the Spanish
minister with the libel of the District Attorney, entered by order
of the Secretary of State, setting forth what was said to be the
demand of the Spanish minister? It is an explicit contradiction.
The Constitution of the United States recognizes the slaves, held
within some of the States of the Union, only in their capacity of
persons— persons held to labor or service in a State under the
laws thereof—persons constituting elements of representation in
the popular branch of the National Legislature—persons, the
migration or importation of whom should not be prohibited by
Congress prior to the year 1808. The Constitution no where
recognizes them as property. 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. Slaves, therefore, in the Constitution of the
United States are recognized only as persons, enjoying rights and
held to the performance of duties.
But, in all countries where men are held as slaves, when they are
charged with the commission of crimes, the right of their owners
to their persons is, and must necessarily be, suspended; and when
they are convicted of capital crimes, the right of the owner is
extinguished. Throughout the who]e correspondence between the
Spanish ministers and our Department of State, concerning the
surrender of these most unfortunate persons, this broad
distinction appears to have been entirely and astonishingly
overlooked, not only by the Spanish ministers, but by the
Secretary of State and by the Attorney General.
Mr. Calderon demands that the President should keep these persons
all—all—adult males and children of both sexes included— in close
custody, and convey them to Cuba to be tried for their lives. Is
it not palpable that if this demand had been complied with, they
could not have been restored to their pretended owners, Ruiz and
Montes, as merchandise of what nature soever? With what face,
then, could the 9th article of the treaty with Spain be alledged
to support a demand for the safekeeping and delivery of the
captives, not as slaves, but as assassins—not as merchandise, but
as men— as infant females, with flesh, and blood, and
nerves, and sinews, to be tortured, and with lives to be forfeited
and consumed by fire, to appease the public vengeance of the
lawless slavetraders in Cuba.
Mr. Forsyth, by a most unaccountable oversight of this distinction
between persons and things, misrepresents this demand of Mr.
Calderon.
He instructs the District Attorney, Mr. Holabird, (11th Sept.,
1839, Doc. p. 39, 40,) that the Spanish minister had addressed a
communication to the Department of State, claiming the vessel,
cargo, AND BLOCKS on board, as Spanish property, and demanding its
immediate release.
The District Attorney, on the 19th of September, files,
accordingly, his libels, (Record, p. 13,) stating the demand of
the Spanish minister, not as it had really been made, but
according to the statement of it in his instructions from the
Department of State; and he prays the Court that, if the claim of
the Spanish minister is well founded and conformable to treaty,
the Court should make such order for the disposal of the said
vessel, cargo, AND SLAVES, as may best enable the United States,
in all respects, to comply with their treaty stipulations, and
preserve the public faith inviolate.
But if it should be made to appear that the persons aforesaid,
described as slaves are Negroes and persons of color, who have
been transported from Africa in violation of the laws of the
United States, and brought into these United States contrary to
the same laws, he claims that, in such case, the Court shall make
such further order as may enable the United States, if deemed
expedient, to remove such persons to the coast of Africa, to be
delivered there to such agent or agents as may be authorized to
receive and provide for them, pursuant to the laws of the United
States; or to make such other order as to the court should seem
fit, right, and proper in the premises.
Here were three alternatives prayed for—1st. That the vessel,
cargo, and blacks, assumed to be slaves, should be so disposed of
as to enable the United States to comply with their treaty
stipulations, and preserve the public faith inviolate. It was
stated that this demand was made at the instance of the Spanish
minister, but that was true only of the vessel and cargo, but not
of the persons. Of them, he had demanded, by necessary
implication, that they should not be restored to their pretended
owners, but kept in close custody, and, in defiance of all
judicial authority, conveyed to the Havana Governmentally, that
is, by the arbitrary mandate of the President of the United
States, to satisfy public vengeance. The Court could not have
complied with this alternative of restoring the Negroes, as
property, to their owners, but by denying and defying the real
demand of the Spanish minister, that they should be sent to Cuba
as criminals.
The second alternative was, that the Court should enable the
United States to send the Negroes home to Africa, if deemed
expedient; and to this the decree of the Court said, soit fait
comme il est desire; it as the District Attorney desires. Let the
said Africans, in the custody of the Marshal, be delivered to the
President of tile United States by the Marshal of the District of
Connecticut, to be by him transported to Africa, in pursuance of
the law of Congress passed March 3, 1829, entitled "An act in
addition to the acts prohibiting the slavetrade."
Yet, from this sentence, claimed by the District Attorney, the
representative of the Executive Administration before the Court,
it is he himself that appeals. Should the Court sustain that apt
peal, what judgment could they possibly render? Should they
reverse the decision of the District and Circuit Courts, they
would indeed determine that these forty persons should not be
delivered to the President of the United States, to be sent home
to Africa —but what shall the Court decree to be done with them ?
Not surely, that they should be delivered up to their pretended
owners, for against that the Spanish minister solemnly protests !
He demands not even that they should be delivered up to himself!
He demands that it should be declared, that no tribunal in the
United States has the right even to institute proceedings against
them. Be declared— by whom? He demands of the Executive
Administration—(will the Court please to consider what the purport
of this demand is?) that the President of the United States should
issue n proclamation, that no tribunal of the United States has
the right to institute proceedings against the subjects of Spain
for crimes committed on board a Spanish vessel, and in the waters
of the Spanish territory.
When this demand was made, the Africans of the Amistad were in the custody of
a judicial tribunal of the United States, upon proceedings
instituted against them as criminals charged with piracy and
murder. They were also claimed by two Spaniards as merchandise,
their property; and the faith of a treaty was solemnly invoked to
sustain the claim that this merchandise, rescued out of the hands
of pirates or robbers, (that is to say, out of the hands of
itself,) should be taken care of by the officers of the port into
which they had been brought, and restored entire to them—Ruiz and
Montes—as soon as due and sufficient proof should be made
concerning the property thereof.
Now, if no tribunal in the United States had the right to
institute proceedings against the subjects of Spain for crimes
committed on board a Spanish vessel and in the waters of the
Spanish territory, how could the Court know that these same
Spanish subjects were, at the same time, the merchandise rescued
out of the hands of pirates and robbers and the pirates or robbers
out of whose hands the merchandise was rescued? How could the
Court know that they were subjects of Spain—that they were pirates
or robbers—or that they were merchandise—if the Court had no right
to institute proceedings against them ?
The very phraseology of the 9th article of the treaty with Spain
proves, that it was not and could not be intended to include
persons under the denomination of merchandise, of what nature
soever, for it provides that the merchandise shall be delivered to
the custody of the officers of the port, in order to be taken care
of and restored entire to the true proprietor. Now, this
provision, that the merchandise shall be restored entire, is
absurd if applied to human beings, and the use of the word
conclusively proves that the thought and intention of the parties
could not be construed to extend to human beings. A stipulation to
restore human beings entire might suit two nations of cannibals,
but would be absurd, and worse than absurd, between civilized and
Christian nations. Again, the article provides that the rescued
merchandise shall be delivered to the custody of the officers of
the port into which it is brought, in order to be taken care of;
but, by what Constitution or law of the United States, or of
Connecticut, could the officers of the port of hew London receive
into their custody, and take care of, the Africans of the Amistad?
The demand of the Spanish minister, Calderon, was, that the
President of the United States should first turn man robber;
rescue from the custody of the Court, to which they had been
committed, those forty odd Africans, males and females, adults and
children; next turn jailer, and keep them in his close custody, to
prevent their evasion; and lastly, turn catchpoll and convey them
to the Havana, to appease the public vengeance of the African
slave traders of the barracoons.
Is it possible to speak of this demand in language of decency and
moderation? Is there a law of Habeas Corpus in the land? Has the
expunging process of black lines passed upon these two
Declarations of Independence in their gilded frames? Has the 4th
of July, '76, become a day of ignominy and reproach? Is there a
member of this Honorable Court of age to remember the indignation
raised against a former President of the United States for causing
to be delivered up, according to express treaty stipulation, by
regular judicial process, a British sailor, for murder on board of
a British frigate on the high seas? At least, all your Honors
remember the case of the Bambers? You all remember your own recent
decision in the case of Dr. Holmes ? And is it for this Court to
sanction such monstrous usurpation and Executive tyranny as this
at the demand of a Spanish minister? And can you hear, with
judicial calmness and composure, this demand of despotism,
countenanced and supported by all the Executive authorities of the
United States, though not yet daring to carry it into execution?
The third alternative prayed for in the name and behalf of the
United States in the libel of the 19th of September, 1839, is,
that the court should make such other order in the premises as it
should think fit, right, and proper.
To this expedient it was necessary for the court to resort. The
court did not know—it could not know that the demand of the
Spanish Minister, Calderon, was not only widely different from
that which the libel of the District Attorney represented it to
be, but absolutely incompatible with it. The court took it for
granted that the statement in the libels, at least so far as
concerned the demand of the Spanish Minister, was true—and so far
as respected the only Ladino on board the Amistad, the boy Antonio, did
accede to the supposed demand of the Minister—did actually admit
the treaty stipulation as applicable to him—and did decree that he
should be restored to the legal representatives of his deceased
master. The judge of the District Court relieved Antonio from his
right of appeal; from that decision by stating that Antonio
himself desired to be restored to his widowed mistress. But as the
whole decree was the result of a deception practiced upon the
court, and as in that part of it relating to Antonio, are involved
principles of the deepest interest to human freedom, and to the
liberties of my country, I will only express my most earnest hope,
with profound respect for the court, that that portion of its
decision will never tee adduced as authority for the surrender of
any other individual situated as Antonio was on that trial.
And here I must avail myself of the occasion to state my
objections to the admission of the case of the Antelope as an
authoritative precedent in this or any other court of the United
States— I had almost said for any thing, certainly for the right
of the court itself to deliver up to slavery any human individual
at the demand of any diplomatic or consular agent of any foreign
power. And that I may be enabled to set forth at large, my reasons
for resisting the application of that case as precedent or
authority for the settlement of any principle now under the
consideration of the Court, I must ask the permission of the Court
to review the case of the Antelope itself, as it appears on the
face of the Reports.
[See the review of the case of the Antelope, at the close of the
argument.]
And this declaration of the Spanish minister not only contradicts
it, but shows that it was impossible any such demand should have
been made. "For, let it be remembered," he says, "that the Spanish
legation demands not slaves but assassins." No despotism could
comply with both demands, had they been made, but the Spanish
Minister explicitly declares that only one demand was made by the
legation, and that not the one affirmed by the Secretary of
State—not property but assassins—not for the benefit of
individuals, but to satisfy "public vengeance." There is something
follows in the letter about " fanaticism," which I will not read
to the Court, for reasons that will be obvious. Indeed, I do not
know as I understand it, and it is possible that I have indulged,
or may indulge in what, in certain dialects, may be called
"fanaticism," myself. The Chevalier proceeds to reason:
"Thus it appears that a court of one of the States of the
confederacy has assumed the direction of an affair over which it
has no jurisdiction; that there can be no law, either anterior or
posterior to the treaty, upon which a legal sentence can be based;
that this court, by the repeated delays which it orders,
contributes to delay the satisfaction demanded by public justice;
and that, in consequence, the affair should only be determined by
reference to international right, and, therefore, by the exercise
of the power of the government, (gubernativamente) that, for its
determination, the treaty exists to which Spain appeals; that,
from the delay on this determination have proceeded injuries
requiring indemnification, to demand which the undersigned
reserves his right for a future occasion. The undersigned may,
without indiscretion, declare that this must be the opinion of the
cabinet, which, possessing already the necessary and even
indispensable powers, may immediately act (gubernativamente) in
this matter, in virtue of the actual state of the law, and without
awaiting the decision of any court. Not to do so may give rise to
very complicated explanations with regard to reciprocity in the
execution and fulfillment of treaties."
Here it is. "Gubernativamente," again; that is the idea which was
in the mind of the Spanish minister all the while,
gubernativamente. That is what he was insisting on, that was the
demand which the Secretary of State never repelled as he ought, by
telling Mr. Argaiz that it was not only inadmissible under our
form of government, but would be offensive if repeated. But where
will your Honors find any thing like a demand for property' under
the treaty, and by the decision of a court of the United States?
He says, if the Executive does not at once act gubernativamente,
and take the case out of the judiciary, and send these people to
Cuba. it "may give rise to complicated explanations with regard to
reciprocity in the execution and fulfillment of treaties.)" Is
that language for a foreign minister to use to the American
Secretary of State, and not to be answered. He then says:
"The undersigned flatters himself with the hope that his
Excellency the President will take into his high consideration
this communication, to which the undersigned hopes for a speedy
answer, as a new proof of the scrupulousness and respect with
which this nation fulfills the treaties existing with other
nations. If, contrary to this hope, the decision should not be
such as the undersigned asks, he can only declare the General
Government of the Union responsible for all and every consequence
which the delay may produce.''
There is the language used by the representative of her Catholic
Majesty to the Secretary of State of the United States, and to
which the Secretary never thought it necessary to make a suitable
reply. There is another correspondence published among the
documents of the present session of Congress, connected too with
this very case, which shows that the Secretary knows how to be
very sensitive with regard to any thing that looks like foreign
interference with the action of our courts and government. It is
in his answer to Mr. Fox the British ambassador, who addressed a
letter to Mr. Forsyth, January 20th, 1841, saying he had been
instructed to represent to the President that the attention of his
government " has been seriously directed to the case" of these
Africans, and in consequence of the treaty between Great Britain
and Spain, in which the former paid a valuable consideration for
the abandonment of the trade, it is "moved to take a special and
peculiar interest in the fate of these unfortunate Africans." And
he says:
"Now the unfortunate Africans, whose case is the subject of the
present representation, have been thrown by accidental
circumstances into the hands of the authorities of the United
States; and it may probably depend upon the action of the United
States Government, whether these persons shall recover the freedom
to which they are entitled, or whether they shall be reduced to
slavery, in violation of the known laws and contracts publicly
passed, prohibiting the continuance of the African slave trade by
Spanish subjects.
"It is under these circumstances that Her Majesty's Government
anxiously hope that the President of the United States will find
himself empowered to take such measures in behalf of the aforesaid
Africans as shall secure to them the possession of their liberty,
to which, without doubt, they are by law entitled."
The Secretary of State, in his reply, consents to receive the
communication, " as an evidence of the benevolence of her
Majesty's Government, under which aspect alone," he says, " it
could be entertained by the Government of the United States." What
a different tone is here! Mr. Fux merely referred to the relations
of his own government with that of Spain, and to the 10th article
of the treaty of Ghent, between Great Britain and the United
States, in which both nations bound themselves " to use their best
endeavors for the entire abolition of the African slave trade."
His letter was courteously worded throughout. It casts no
imputations upon any branch of our government, it pronounces no
part of it incompetent to its functions, it asks no
unconstitutional and despotic interference of the Executive with
the judiciary gubernativamente, but simply, announces the interest
his government feels in the case, and its "anxious hope that the
President of the United States will find himself empowered to take
such measures in behalf of the aforesaid Africans as shall secure
to them their liberty, to which," he says, "without doubt, they
are by law entitled." To this the Secretary of State replies:
"Viewing this communication as an evidence of the benevolence of
her Majesty's Government—under which aspect alone it could be
entertained by the Government of the United States— I proceed, by
direction of the President, to make, in reply, a few observations
suggested by the topics of your letter. The narrative presented
therein, of the circumstances which brought these Negroes to our
shores, is satisfactory evidence that her Majesty's Government is
aware that their introduction did not proceed from the wishes or
direction of the Government of the United States. A formal demand
having been made by the Spanish minister for the delivery of the
vessel and property, including the Negroes on board, the grounds
upon which it is based have become the subject of investigation
before the judicial tribunals of the country, which have not yet
pronounced their final decision thereupon You must be aware, sir,
that the Executive has neither the power nor the disposition to
control the proceedings of the local tribunals when acting within
their own appropriate jurisdiction."
How sensitive the Secretary is now! How quick to perceive an
impropriety! How slave to the honor of the country—much more so,
indeed, than the case required. How different his course from that
pursued toward the Spanish minister, who had been from the
beginning to the end pressing upon our government demands the most
inadmissible, the most unexampled, the most offensive, and yet
received from the Secretary no answer, but either a prompt
compliance with his requirements, or a plain demonstration of
regret that compliance was impracticable. Not one attempt do we
find by the Secretary to vindicate the honor of the country, or to
press the Spanish minister to bring forward his warrant for such
unexampled, such humiliating demands. Neither does he intimate in
the case of the Spanish claim, that it i8 received on the ground
of "benevolence." Indeed he could not very well offer that as an
apology. Benevolence ! The burning of these forty Africans at the
stake, as the result of a compliance by our Executive with the
Spanish demand, would hardly tend to exhibit or inspire
"benevolence."—No, it was for vengeance that they were demanded,
admitted to be so in this very letter.
In the same letter the Secretary of State does not undertake to
controvert the principles set forth by Mr. Calderon, nor the
arguments urged by Mr. Argaiz; but repeats that they had been
submitted to the President for consideration. And that is all the
answer ever given to the Spanish legation. He then refers to
various personal conversations with the minister of Spain.
It was hoped that, in the various conversations which have since
taken place with the Chevalier d'Argaiz at this department, on the
same subject, he would have discovered additional evidence of the
desire of the United States Government to do justice to the demand
and representation addressed to it in the name of that of Spain,
as fully and as promptly as the peculiar character of the claim
admitted. From the repeated communications of the Chevalier
d'Argaiz, pressing for the disposal of the question; from his
reiterated over of suggestions as to the course by which he deems
it incumbent upon this Government to arrive at a final decision;
and from the arguments in support of those suggestions, which the
undersigned does not perceive the utility of combating at the
present stage of the transaction.
The Secretary makes no pretension to contest the claims of
Spain—not even a suggestion of the idea that these claims are
inadmissible, or that, if pressed, they would be offensive. In
these conversations, many things may hare been said which perhaps
it would not have been deemed compatible with the public interest
to make public. I shall justify this intimation before I am
through with this remarkable correspondence. But it is evident
there was no resistance of the claims in question as to their
justice, no examination of their principles. The Secretary says he
does not perceive the utility of combating any of these demands or
allegations, and he refers to these private conversations as
evidence that the Government is perfectly disposed to do all that
is demanded. He continues by saying—
"The Government of the United States cannot but perceive with
regret that the Chevalier d'Argaiz has not formed an accurate
conception of the true character of the question, nor of the rules
by which, under the constitutional institutions of the country,
the examination of it must be conducted; nor a correct
appreciation of the friendly disposition toward Her Catholic
Majesty's Government, with which that examination was so promptly
entered upon. In connection with one of the points in the
Chevalier d'Argaiz's last note, the undersigned will assure him,
that whatever be, in the end, the disposal of the question, it
will be in consequence of a decision emanating from no other
source than the Government of the United States; and that, if the
agency of the judicial authority shall have been employed in
conducting the investigation of the case, it is because the
judiciary is, by the organic law of the land, a portion, though an
independent one, of that Government."
That is to say, so it is, and we can't help it, the judiciary is
independent, it must have its course, and we cannot help it. He
proceeds:
"As to the delay which has already attended, and still may attend,
a final decision, and which the Chevalier d'Argaiz considers as a
legitimate subject of complaint, it arises from causes which the
undersigned believes that it would serve no useful purpose to
discuss at this time, farther than to say that they are beyond the
control of this department, and that it is not apprehended that
they will affect the course which the Government of the United
States may think it fit ultimately to adopt."
The Spanish minister is here given to understand, in his ear, that
care had been taken to prevent the Africans from being placed
beyond the control of the Executive, and therefore he need be
under no apprehension that the decision of the courts, whatever it
may be, " will affect the course which the Government of the
United States may think it fit ultimately to adopt." What other
construction can possibly he given to this paragraph? If any other
is possible from the words there are facts in the case which prove
that this was what was intended. The Secretary proceeds with his
explanations and apologies.
"The undersigned indulges the hope
that, upon a review of the circumstances of the case, and the
questions it involves, the Chevalier d'Argaiz will agree with him
in thinking that the delay which has already occurred is not more
than commensurate with the importance of those questions; that
such delay is not uncommon in the proceedings and deliberations of
governments desirous of taking equal justice as the guide of their
actions; and that the caution which it has been found necessary to
observe in the instance under consideration, is yet far from
having occasioned such procrastination as it has been the lot of
the United States frequently to encounter in their intercourse
with the Government of Spain."
"With regard to the imprisonment of
Don Jose Ruiz, it is again the misfortune of this Government to
have been entirely misapprehended by the Chevalier d'Argaiz, in
the agency it has had in this, an entirely private concern of a
Spanish subject. It was no more the intention of this department,
in what has already been done, to draw the Chevalier d'Argaiz into
a polemical discussion with the Attorney of the United States for
the district of New York, than to supply Don Jose Ruiz, gratis,
with counsel in the suit in which he had been made a party. The
offer made to that person of the advice and assistance of the
District Attorney, was a favor— an entirely gratuitous one—since
it was not the province of the United States to interfere in a
private litigation between subjects of a foreign state, for which
Mr. Ruiz is indebted to the desire of this government to treat
with due respect the application made in his behalf in the name of
her Catholic Majesty, and not to any right he ever had to be
protected against alleged demands of individuals against him or
his property."
Here, then, it is avowed that the Executive government of this
nation had interposed in a suit between two parties, by extending
a favor entirely gratuitous to one of the parties, who, it is at
the same time admitted, had no claim whatever to this gratuitous
aid. And then comes the exhibition which I have already read, of
the national sympathy, in which all the authorities of the country
are alleged to have participated, and the assumption, under which
all the proceedings have been carried on, that there was but one
party aggrieved in the case, and that party was the Spanish slave
traders.
On the 25th of December the Chevalier d'Argaiz addressed a long
letter to the Secretary of State, in which he acknowledges the
receipt of the last letter, to which "it would be superfluous"
—the word is ocioso, idle—to reply, inasmuch as the Secretary of
State does not seem to have considered it requisite in the present
situation of the affair, to combat the arguments adduced by the
undersigned. The delicacy of the undersigned does not, however,
allow him to pass over (desoir) certain insinuations (remarks)
contained in the said note; and it will, perhaps, be difficult for
him to avoid adducing some new argument in support of his
demands."
The Secretary had never met these claims and arguments, as it was
his duty to do, nod the Spanish minister is continually reminding
him that he does not answer his arguments. He then refers him to
his own course, and says, "The undersigned would not have troubled
the Government of the Union with his urgent demand, if the two
Spaniards (who, as the Secretary of State, in his note of the
12th, says, 'were found in this distressing and perilous situation
by officers of the United States, who, moved by sympathetic
feelings, which subsequently became national,') had not been the
victims of an intrigue, as accurately shown by Mr. Forsyth, in the
conference which he had with the undersigned on the 21st of
October last."
He here refers to a private conference in which the Secretary of
State had accurately shown that the two Spaniards in New York were
the "victims of an intrigue." The Secretary of State of the United
States, then, had confidentially and officially informed the
Spanish minister that the two Spaniards, in being arrested at the
suit of some of these Africans, were the victims of an intrigue."
What the Secretary meant by "victims of an intrigue, "is not for
me to say. These Spaniards had been sued in the courts of the
state of New York by some of my clients, for alleged wrongs done
to them on the high seas—for cruelty, in fact, so dreadful, that
many of their number had actually perished under the treatment
'These suite were commenced by lawyers of New York—men of
character in their profession. Possibly they advised with a few
other individuals—fanatics, perhaps, I must call them, according
to the general application of language, but if I were to speak my
own language in my own estimate of their character, so far as
concerns this case, and confining my remarks exclusively to this
present case, I should pronounce them the FRIENDS OF HUMAN
NATURE—men who were unable to see these, their fellow men, in the
condition of these unfortunate Africans, seized, imprisoned,
helpless, friendless, without language to complain, without
knowledge to understand their situation or the means of
deliverance—I say they could not see human beings in this
condition and not undertake to save them from slavery and death,
if it was in their power—not by a violation of the laws, but by
securing the execution of the laws in their favor. These are the
men whom the American Secretary of State arraigns in a
confidential conversation with the minister of Spain, as the
instigators of "an intrigue" of which he holds these disappointed
slaveholders to be the unfortunate victims. The Chevalier goes
on:
"The Secretary of State, however,
says that 'he cannot but perceive with regret that the Chevalier
d'Argaiz has not formed an accurate conception of the true
character of the question, nor of the rules by which, under the
constitutional institutions of this country, the examination of it
must be conducted.' Possibly the undersigned may not have formed
such an accurate conception, of this affair, since it has been
carried within the circle of legal subtleties, as he has not
pursued the profession of the law; but he is well persuaded that,
if the crew of the Amistad
had been composed of white men, the court, or the corporation to
which the Government of the Union might have submitted the
examination of the question, would have observed the rules by
which it should be conducted under the constitutional institutions
of the country, and would have limited itself to the ascertainment
of the facts of the murders committed on the 30th of June; and the
undersigned does not comprehend the privilege enjoyed by Negroes,
in favor of whom an interminable suit is commenced, in which
everything is deposed by every person who pleases; and, for that
object, an English doctor, who accuses the Spanish government of
not complying with its treaties, and calumniates the Captain
General of the island of Cuba, by charging him with bribery."
Here it is made the subject of complaint from a foreign
ambassador to the Executive Government of the United States, that
in a court of the United States, in a trial for the life and
liberty of forty human beings, the testimony, of "an English
doctor" was received. And this complaint also was received without
a reply. The "English doctor," thus spoken of, was Doctor Madden,
a man of letters, and in the official employ of the British
Government, in a post of much importance and responsibility, as
the superintendent of liberated Africans at Havana. His testimony
was highly important in the case and was admitted in the court
below, and now forms a part of the record now before your Honors.
He does not use the word bribery in reference to the Governor
General of Cuba.
[DEATH OF JUDGE BARBOUR—THE
PROCEEDINGS OF THE COURT SUSPENDED.
Washington, Feb. 25, 1841.
The proceedings of the Court in
this solemn case have been interrupted by the solemn voice of
death. One of the learned and honorable judges of the Court, who
sat yesterday in his place, listening with profound and patient
attention to the argument of a counselor many years older than
himself, reasoning eloquently in behalf of justice on earth, has
been summoned to his own dread account, at the bar of Eternal
Justice above. Judge Barbour, of Virginia, the seventh in rank
on the bench, died last night in his bed—in his sleep, it is
probable, without a groan or a struggle. The servant at his
lodgings went at the usual hour this morning to the rooms of the
different Judges, to call them to breakfast. 4s the Chief
Justice was passing the door of Judge Barbour's room, the man
said to him, "Chief Justice, will you please to come here, sir—I
think Judge Barbour is dead." Judge Taney went to the bed, and
there saw his associate lying on his side, as if in a gentle
sleep, but dead and cold, with the exception of a slight
remaining warmth at the chest. Not a muscle was distorted, nor
were the bedclothes in the slightest degree disturbed, so that
it is probable his heart ceased to beat in an instant, while he
was asleep.
At the usual hour for opening the
Court this morning, none of the Judges were seen in the
courtroom, which was already filled with persons come to hear
the continuation of Mr. Adams' speech.]
At length the Judges came in
together, and their countenances looked pale, distressed, and
sorrowful. As soon as they had taken their seats, the Crier
opened the Court in the usual form, and the Chief Justice
addressed the gentlemen of the bar—"Gentlemen a painful event
has occurred—Judge Barbour died suddenly last night—and the
Court is therefore adjourned until Monday."
The Crier then made proclamation
to that effect, the Judges all rose, and retired again to their
private apartment, and the assembly withdrew.
I did not expect an announcement
of so overwhelming a Providence in a manner so severely simple
and subdued, but it struck me as eminently appropriate for the
Supreme Court of this nation. It was in keeping with the
strictest propriety and suitableness. It was sublime.
RESUMPTION OF THE TRIAL.
Washington March 1, 1841.
On the reopening of the Court, the Attorney General of the United
States, H. D. Gilpin, Esq. presented a series of appropriate
resolutions in reference to the decease of Judge Barbour, which
had been adopted on Friday, at a meeting of the Bar of officers of
the court, and which he moved to have entered on the records of
the court. The Chief Justice responded in a short address, and
concluded with ordering the resolutions to be entered on the
records.
Mr. Adams then resumed his argument, as
follows:—
May it please your Honors,
The melancholy event which has occurred since the argument of this
case was begun, and which has suspended for a time the operations
of the Court itself, and which I ask permission to say that I give
my cordial, and painful concurrence in the sentiments of the Bar
of this Court—has imposed on me the necessity of restating the
basis and aim of the argument which I am submitting to the Court,
in behalf of the large number of individuals, who are my
unfortunate clients.
I said that my confidence in a favorable result to this trial
rested mainly on the ground that I was now speaking before a Court
of JUSTICE. And in moving the dismissal of the appeal taken on
behalf of the United States, it became my duty, and was my object
to show, by an investigation of all the correspondence of the
Executive in regard to the case that JUSTICE had not been the
motive of its proceedings, but that they had been prompted by
sympathy with one of the two patties and against the other. In
support of this, I must scrutinize, with the utmost severity every
part of the proceedings of the Executive Government. And in doing
it, I think it proper for me to repeat, that in speaking of the
impulse of sympathies, under which the government acted, I do not
wish to be understood to speak of that sympathy as being blamable
in itself, or as inducing me to feel unfriendly sentiments towards
the Head of the Government, or the Secretary of State, or any of
the Cabinet. I feel no unkind sentiments towards any of these
gentlemen. With all of them, I am, in the private relations of
life, on terms of intercourse, of the most friendly character. As
to our political differences, let them pass for what they are
worth, here they are nothing. At the moment of the expiration of
this administration, I feel extreme reluctance at the duty of
bringing its conduct before the court in this manner, as affecting
the claims of my clients to JUSTICE. My learned friend, the
Attorney General, knows that I am not voluntary in this work. I
here descended to personal solicitation with the Executive, that
by the withdrawal of the appeal, l might be spared the necessity
of appearing in this cause. I have been of the opinion that the
case of my clients was so clear, so just, so righteous, that the
Executive would do well to cease its prosecution, and leave the
matter as it was decided by the District Court, and allow the
appeal to be dismissed. But I did not succeed, and now I cannot do
justice to my clients, whose lives and liberties depend on the
decision of this Court—however painful it may be, to myself or
others.
In my examination of the first proceedings of the Executive in
this case, I did scrutinize and analyze most minutely and
particularly, the four demands first made upon our government by
the late Spanish minister, Mr. Calderon, in his letter to the
Secretary of State of Sept. 5, 1839. I tested the principles there
laid down, both by the laws of nations and by the treaties between
the two Nations to which he had appealed. And I showed that every
one of these demands was inadmissible, and that every principle of
law and every article of the treaty, he had referred to, was
utterly inapplicable. At the close of my argument the other day, I
was commenting upon the complaint of the present minister, the
Chevelier d'Argaiz, addressed to the Secretary of State on the
25th of December, 1839, in relation to the injustice he alledges
to have been done to the two Spanish subjects, Ruiz and Montes, by
their arrest and imprisonment in New York, at the suit of some of
the Africans. He says he "does not comprehend the privilege
enjoyed by Negroes, in favor of whom an interminable suit is
commenced, in which everything is deposed by every person who
pleases; and, for that object, an English doctor who accuses the
Spanish Government of not complying with its treaties, and
calumniates the Captain General of the island of Cuba, by charging
him with bribery."
This English Doctor is Dr. Madden, whose testimony is given in the
record. He certainly does not charge the Captain General with
bribery, although he says that both he and the other authorities
of Cuba are in the habit of winking or conniving at the slave
trade. That this is the actual state of affairs, I submit to the
Court, is a matter of history. And I call the attention of the
Court to this fact, as one of the most important points of this
case. It is universally known that the trade is actually carried
on, contrary to the laws of. Spain, but by the general connivance
of the Governor General and all the authorities and the people of
the island. The case of this very vessel, the visit of Ruiz and
Montes to the barracoon in which these people were confined, the
vessel in which they were brought from Africa, are all matters of
history. I have a document which was communicated by the British
government to the Parliament, which narrates the whole
transaction. Mr. A. here read from the Parliamentary documents, a
letter from Mr. Jerningham, the British Minister at Madrid, to the
Spanish Secretary of State, dated January 5th, 1840, describing
the voyage of the Tecora from Africa, the purchase of these
Africans who were brought in her, with the subsequent occurrences,
and urging the Spanish Government to take measures both for their
liberation, and to enforce the laws of Spain against Ruiz and
Montes.
He says "I have consequently been instructed by my government to
call upon the government of her Catholic Majesty to issue, with as
little delay as possible, strict orders to the authorities of
Cuba, that, if the request of the Spanish minister at Washington
be complied with, these Negroes may be put in possession of the
liberty of which they were deprived, and to the recovery of which
they have an undeniable title.
"I am further directed to express the just expectations of Her
Majesty's government that the Government of her Catholic Majesty
will cause the laws against the slave-trade to be enforced against
Messrs. Jose Ruiz and Pedro Montes, who purchased these newly
imported negroes, and against all such other Spanish subjects as
have been concerned in this nefarious transaction."
These facts, said Mr. A., must be well known to the Spanish
minister. If he complains of injustice in the charge of general
connivance made by Dr. Madden why has he not undertaken to prove
that it is a calumny? Not the slightest attempt has been made to
bring forward any evidence on this point, for the very plain
reason that there could be none. The fact of the slave trade is
too notorious to be questioned. I will read, said he, from another
high authority, a book filled with valuable and authentic
information on the subject of the slave trade' written by one of
the most distinguished philanthropists of Great Britain, Sir
Thomas Fowel1 Buxton. Mr. A. then read as follows:—
"It is scarcely practicable to ascertain the number of slaves
imported into Cuba: it can only be a calculation on, at best,
doubtful data. We are continually told by the Commissioners, that
difficulties are thrown in the way of obtaining correct
information in regard to the slave trade in that island.
Everything that artifice, violence, intimidation, popular
countenance, and official connivance can do, is done, to conceal
the extent of the traffic. Our ambassador, Mr. Villiers, April,
1837, says, 'That a privilege (that of entering the harbor after
dark) denied to all other vessels, is granted to the slavetrader;
and, in short, that with the servants of the Government, the
misconduct of the persons concerned in this trade finds favor and
protection. The crews of captured vessels are permitted to
purchase their liberation; and it would seem that the persons
concerned in this trade have resolved upon setting the government
of the mother country at defiance.' Almost the only specific fact
which I can collect from the reports of the Commissioners, is the
statement 'that 1835 presents a number of slave vessels (arriving
at the Havana) by which there must have been landed, at the very
least, 15,000 Negroes.' But in an official letter, date 28th May,
1836, there is the following remarkable passage: 'I wish I could
add, that this list contains even one fourth of the number of
those which have entered after having landed cargoes, or sailed
after having refitted in this harbor.' This would give an amount
of 69,000 for the Havana alone; but is Havana the only port in
Cuba in which Negroes are landed? The reverse is notoriously true.
The Commissioner says, 'I have every reason to believe that
several of the other ports of Cuba, more particularly the distant
city of St. Jago de Cuba, carry on the traffic to a considerable
extent.' Indeed, it is stated by Mr. Hardy, the consul at St.
Jago, in a letter to Lord Palmerston, of the 18th February, 1837,
'That the Portuguese brig Boca Negra, landed on the 6th inst. at
Juragua, a little to windward of this port, (St. Jago,) 400
Africans of all ages, and subsequently entered this port.' But in
order that we may be assuredly within the mark, no claim shall be
made on account of these distant ports. Confining ourselves to the
Havana, it would seem probable, if it be not demonstrated, that
the number for that port, a fortiori, for the whole island, may
fairly be estimated at 60,000."
This evidence is important to show what is the real value of this
certificate of the Governor General. There is one other proof
which I will read to the court, and leave it to your Honors to
judge of its bearing, and of the conclusion to which it arrives It
is the statement of the Spanish vice consul, Mr. Vega.
"The following statement was made to
me by A. G. Vega, Esq., Spanish consul, as near as l can now
recollect, and according to my best knowledge and belief, l0th
January, 1840.
W. S. HOLABIRD.
"That he is a Spanish subject; that he resided in the Island of
Cuba several years; that he knows the laws of that island on the
subject of slavery; that there was no law that was considered in
force in the Island of Cuba, that prohibited the bringing in
African slaves; that the court of mixed commissioners had no
jurisdiction except in case of capture on the sea; that newly
imported African Negroes were constantly brought to the island,
and after landing were bona fide transferred from one owner to
another, without any interference by the focal authorities or the
mixed commission? and were held by the owners and recognized as
lawful property; that slavery was recognized in Cuba by all the
laws that were considered in force there; that the native language
of the slaves was kept up on some plantations for years. That the
barracoons are public markets, where all descriptions of slaves
are sold and bought; that the papers of the Amistad are genuine, and are
in the usual form; that it was riot necessary to practice any
fraud to obtain such papers from the proper officers of the
government; that none of the papers of the Amistad are signed by
Martinez, spoken of by R. R. Madden, in his deposition; that he
(Martinez) did not hold the office from whence that paper issued."
This is the statement given to the District Attorney by Mr. Yega,
and by him made a part of this case. This Spanish functionary
declares positively, that he knows there is no law in force in Cuba
against the African slave trade, and that recent Africans are held
and sold bona fide as slaves. It is conclusive to prove this fact,
that the illegal importation and purchase of Africans is openly
practiced in Cuba, although it is contrary to the laws of Spain, but
those laws are not considered in force, that is, the violation of
them is constantly connived at by the authorities.
It may not be universally known, but is doubtless known to members
of this court, that there is a volume of correspondence
this subject, by our consul at Havana, which will be communicated to
Congress for publication in a few days, and I can state from my
personal knowledge that it confirms every word of Mr. Madden's
statements on this point, and will show how much reliance is to be
placed on this certificate of the Governor General.
But I will return to the letter of the Chevalier d'Argaiz. I have
not the honor of knowing this gentleman personally, as I knew his
predecessor, but I certainly entertain no feeling of unkindness
towards him. And in examining his correspondence, although it is my
duty to show that his demands are utterly inadmissible and
unprecedented, yet it must be admitted that his sympathy and
partiality for his own countrymen are at least natural; and if his
zeal and earnestness are somewhat excessive, they are at least
pardonable. There is in this letter, I must say, a simplicity, what
the French call bonhommie, which gives me a favorable impression of
his character, and l certainly feel the farthest possible from a
disposition to pass any censure on him. I repeat that, so far as
this sympathy is concerned, if it is not entirely excusable, it is
much more reasonable than it is in some others who have not the same
interests to defend. He goes on to express his pleasure at the
assurance received from, the Secretary, that " whatever may be the
final settlement of the question, it will be in consequence of a
decision emanating from the government, and not from any other
source ;" and he adds, that " he doubts not such decision will be
conformable with the opinion which was confidentially communicated
to him at the Department of State on the 19th of November, as
founded on that of a learned lawyer, and which he was assured had
been adopted by the cabinet."
I take it for granted that the opinion referred to is the opinion of
the Attorney General of that time, Mr. Grundy, contained in the
Congressional document. It will be necessary for me to examine that
document before I close, as well as the other papers, and I wish to
say that the decease of that gentleman, under the circumstances in
which it occurred, has made such an impression on my mind, as could
not have but disarmed me of any disposition to censure him, if I had
before entertained it. It will be a painful duty to me to examine,
as I must, with the utmost severity, that document. And I shall show
that it is such, that neither the courts nor the cabinet ought ever
to have acted on it.
In another part of his letter, M. d'Argaiz says of Ruiz and Montes,
that they were not exempted from the persecutions of an atrocious
intrigue, and the undersigned Is not the first who has so styled
this persecution.' This is a pretty plain intimation that the
American Secretary of State was the first who called the suit of my
clients for legal redress " an atrocious intrigue," in his "
confidential conversation" with the Spanish minister. This is
followed by an idea so novel and ingenious that it is necessary to
repeat the whole of it. After complaining that Negroes should be
allowed to be complainants, he goes on to argue that they ought to
be considered, "morally and legally, as not being in the United
States," and of course, if they should be delivered up physically, I
suppose it was to be inferred that the Executive would not incur any
responsibility.
"They are morally and legally not in the United States, because the
court of Connecticut has not declared whether or not it is competent
to try them. If it should declare itself incompetent, it declares
that they are under the cover of the Spanish flag; and, in that
case, they are physically under the protection of a friendly
government, but morally and legally out of the territory and
jurisdiction of the United States; and, so long as a doubt remains
on this subject, no judge can admit the complaint. If this argument
be of any value to the Secretary of State of the Government of the
Union, the undersigned entreats him to prevail on the President to
cause a protest, founded on this argument, to be officially
addressed to the court of New York."
His predecessor, M. Calderon, called upon the President for a
proclamation forbidding the courts to take up the case, and the
present minister of Spain insists that he shall send forth his
protest to take it out of the hands of the courts—and this on the
ground, that my clients, although personally imprisoned for eighteen
months by the U.S. Marshal, under order of the U. S. Court, yet are
"not morally and legally in the United States." There is another
argument of the same gentleman, very much of the same character. The
court will find it in his first letter after the arrest of Ruiz and
Montes at New York. He says:
"It would be easy to demonstrate the
illegality of these arrests, the orders for which have possibly
been obtained from the attorney by surprise: as it would also be
easy to show the ignorance of the declarant, Tappan, in declaring
that Ruiz is known by the name of Pipi, whereas he would have been
known and distinguished throughout Spain, as all other Joses are,
by the diminutive of Pepe, and thus it appears that a Pepe has
been imprisoned instead of a Pipi, which I believe the law does
not permit."
The argument is certainly ingenious, and if it is sound at all, it
is worth more in favor of the Africans than of the Spaniards, as I
may hereafter have occasion to show, when I come to consider the
case of nineand forty persons with Spanish names, who have been
arrested and brought into court by African names.
The Chevalier d'Argaiz, in the close of this letter, exhibits his
loyalty towards the then acting sovereign of his nation.
"At the moment when the heart of the
august Queen Governess is filled with delight on account of the
termination of a civil war, and the assurance of the throne of her
august daughter, her minister in the United States has to perform
the painful duty of diminishing her happiness by communicating to
her, as he did by letter on the 19th instant, the disagreeable
event which forms the subject of this communication, The desire of
calming the disquiet which this news may occasion in the mind of
her Majesty, together with that of alleviating the lot of the two
prisoners, urge the undersigned to entreat you, Mr. Secretary of
State, to take into consideration what he has here set forth, and
to afford him the means, in a prompt reply, of satisfying those
just desires, which will be completely done if he is able to
transmit such a reply to his Government by the packet sailing for
Havre on the 1st of November next."
It must doubtless, said Mr. A., be some consolation to this loyal
minister, to reflect that before the august Queen Governess could
have received the painful intelligence of the imprisonment of two
such meritorious subjects as Ruiz and Montes to diminish her
happiness her heart had been gratified in a much better manner. In
the pursuit of that happiness for which she longed, it seems that
she retired altogether from the cares of state, into the comforts of
domestic life, with a husband that, I hope has calmed her disquiet,
and if it should ultimately turn out that the lives of these poor
Africans are saved, there will be no further occasion to diminish
the happiness of the august QueenGoverness.
On the 30th of December, five days after the date of the letter I
have been commenting upon, the Chevalier d'Argaiz wrote again to the
Secretary of State.
(WASHINGTON, December 30, 1839.)
"SIR—In the conversation which I had with you on the morning of
the day before yesterday, you mentioned the possibility that the
Court of Connecticut might, at its meeting on the 7th of January
next, declare itself incompetent, or order the restitution of the
schooner Amistad, with
her cargo, and the Negroes found on board of her; and you then
showed me that it would be necessary for the legation of her
Catholic Majesty to take charge of them as soon as the Court
should have pronounced its sentence or resolution; and, although I
had the honor to state to you that this legation could not
possibly transfer the said Negroes to Havana, still it appears
proper for me now to declare that—
"Considering that the schooner Amistad
cannot make a voyage, on account of the bad condition in which she
is, of her being entirely without a crew:
"Considering that it would be difficult to find u vessel of the
United States willing to take charge of these Negroes, and to
transport them to Havana; and, also, that these Negroes have
declared before the Court of Connecticut that they are not slaves;
and that the best means of testing the truth of their allegation
is to bring them before the Courts of Havana:
"Being at the same time desirous to free the Government of the
United States from the trouble of keeping the said Negroes in
prison, I venture to request you to prevail upon the President to
allow to the Government of her Catholic Majesty the assistance
which it asks under the present circumstances from that of the
United States, by placing the Negroes found on board of the said
schooner, and claimed by this legation, at the disposition of the
Captain General of the Island of Cuba, transporting them thither
in a ship belonging to the United States. Her Catholic Majesty's
Government, I venture to assert, will receive this act of
generosity as a most particular favor, which would serve to
strengthen the bonds of good and reciprocal friendship now happily
reigning between the two nations."
Here is no longer a demand for the delivery of slaves to their
owners, nor for the surrender of the Africans to the Spanish
minister as assassins, but an application to the President of the
United States to transport forty individuals beyond the seas, to be
tried for their lives. Is there a member of this Honorable Court
that ever heard of such a demand made by a foreign minister on any
government? Is there in the whole history of Europe an instance of
such a demand made upon an independent government? I have never in
the whole course of my life, in modern or ancient history, met with
such a demand by one government on another. Or, if such a demand was
ever made, it was when the nation on which it was made was not in
the condition of an independent power.
What was this demand? It was that the Executive of the United
States, on his own authority, without evidence, without warrant of
law, should seize, put on board a national armed ship, and send
beyond seas, forty men, to be tried for their lives. I ask the
learned Attorney General in his argument on this point of the case,
to show what is to be the bearing of this proceeding on the
liberties of the people. I ask him to tell us what authority there
is for such an exercise of power by the Executive. I ask him if
there is any authority for such a proceeding in the case of these
unfortunate Africans, which would not be equally available, if any
President thought proper to exercise it, to seize and send off forty
citizens of the United States. Will he vindicate such an authority?
Will this Court give it a judicial sanction ?
But, may it please your Honors, what was the occasion, the cause,
the motive, which induced the Secretary of State to hold this
personal communication with the Spanish minister on the 28th of
December? What had occurred, to induce the Secretary of State to
send for the Chevalier d'Argaiz, and tell him that the court of
Connecticut was about to pass a decree that these Africans should be
delivered up, and that our government would be ready to deliver them
to him! What induced the Secretary of State to come to the
conclusion that there was any sort of probability that the Court of
Connecticut would so adjudge? The documents do not inform us at
whose suggestion or by what information the Secretary of State acted
in this remarkable manner. We are left to infer, that his course was
founded, probably, on the opinion of the late Attorney General, with
a suggestion from the District Attorney' of Connecticut. I refer to
a letter of the Secretary of State to Mr. Holabird, January 6, 1840,
in connection with this letter of the Spanish minister, of December
30. The Secretary says—" Your letter of the 20th ultimo," that is,
the 20th of December, "was duly received." Now, said Mr. Adams, it
is a remarkable fact, that this letter of the District Attorney, of
December 20 1839, was not communicated with the rest of the
documents. Why it was not communicated is not for me to say. The
call of the House of Representatives was in the usual form, for
information "not incompatible with the public interest ;" which, of
course, gives the President the right to withhold any documents that
he thinks proper. That letter, therefore, is not communicated, and I
cannot reason from it, any farther than its contents may be
presumed, from the intimations in the letter of the Spanish
minister, in connection with the subsequent proceedings. The
Secretary says—
(WASHINGTON, January 6, 1840)
"Sir—Your letter of the 20th ultimo was duly received, and has
been laid before the President. The Spanish minister having
applied to this department for the use of n vessel of the United
States in the event of the decision of the circuit court in the
case of the Amistad being
favorable to his former application, to convey the Negroes to
Cuba, for the purpose of being delivered over to the authorities
of that island, the President has, agreeably to your suggestion
taken in connection with the request of the Spanish minister,
ordered a vessel to be in readiness to receive the Negroes from
the custody of the marshal as soon as their delivery shall have
been ordered by the court "
Now, what could that suggestion have been? It will be remembered
that the Secretary of State had before directed the District
Attorney, Sept. 1l, "In the mean time you will take care that no
proceeding of your circuit court' or of any other judicial tribunal
places the vessel, cargo, or slaves, beyond the control of the
Federal Executive." The District Attorney had repeatedly inquired of
the Secretary if they could not be disposed of by an Executive act,
or before the court met. Until this time he had received no orders
from the Department. From the intimation now given, it is evident
that the purport of that suppressed letter was an intimation that
the district court would undoubtedly deliver them up, and the
difficulty then was, how to get them out of the way. There might be
a Habeas Corpus from the State courts at the moment of their
delivery to the Spaniards, and some new difficulties would
intervene. There must have been some such suggestion to warrant or
account for the subsequent proceedings. The Secretary goes on to
say—
"As the request of the Spanish
minister for the delivery of the Negroes to the authorities of
Cuba has, for one of its objects, that those people should have an
opportunity of proving, before the tribunals of the island, the
truth of the allegations made in their behalf in the course of the
proceedings before the circuit court, that they are not slaves,
the President, desirous of affording the Spanish courts every
facility that may be derived from this country towards a fair and
full investigation of all the circumstances, and particularly of
the allegations referred to with regard to the real condition of
the Negroes, has directed that Lieutenants Gedney and Meade be
directed to proceed to Cuba, for the purpose of giving their
testimony in any proceedings that may be instituted in the
premises; and that complete records of all those which have been
had before the circuit court of your district, including the
evidence taken in the cause, be, with the same view, furnished to
the Spanish colonial authorities. In obedience to this last
mentioned order, you will cause to be prepared an authentic copy
of the records of the court in the case, and of all the documents
and evidence connected with it, so as to have it ready to be
handed over to the commander of the vessel which is to take out
the Negroes, who will be instructed as to the disposition he is to
make of them.''
In every thing I have said of the arguments, and the zeal of the
Spanish minister, I have admitted that the principles which may be
supposed to govern him might go far to justify the sympathy he has
shown for one party exclusively. But I cannot give the same credit
for the sympathy shown by our own government. In this letter we
meet, for the first time, something that might appear like sympathy
for the poor wretches whose liberties and lives were in peril. Here
is a desire intimated that they might go to Cuba, for the purpose of
having an opportunity to prove in the courts of Spain their right to
be free by the laws of Spain. And the President, in the abundance of
his kindness, orders Lieutenants Gedney and Meade to be sent along
with them, as witnesses in the case, "particularly," the Secretary
says, "with regard to the real condition of the Negroes, "that is,
whether they were free or slaves. But what did Lieutenants Gedney
and Meade know about that? They could testify to nothing but the
circumstances of the capture. And as to the other idea, that these
people should have an opportunity to prove their freedom in Cuba,
how could that be credited as a motive, when it is apparent that, by
sending them back in the capacity of slaves, they would be deprived
of all power to give evidence at all in regard to their freedom! I
cannot, therefore, give the Executive credit for this sympathy
towards the Africans. It was a mere presence, to blind the public
mind with the idea that the Africans were merely sent to Cuba to
prove they were not slaves. So far from giving any credit for this
sympathy, the letter itself furnishes incontestable evidence of n
very different disposition, which I will not qualify in words.
Pursuing the case chronologically, according to the course of the
proceedings, I now call the attention of the Court to the opinion of
the late Attorney General of the United States, which the Secretary
of the State told Mr. Argaiz had been adopted by the Cabinet, and
which has been the foundation, to this day, of all the proceedings
of the Executive in the case. Before considering this, however, I
will advert to the letter of Messrs. Staples and Sedgwick; to the
President These gentlemen were counsel for those unfortunate men.
There had been reports in circulation, which is by no means
surprising, considering the course of the public sympathy, that the
President intended to remove these people to Cuba, by force,
gubernativamente, by virtue of his Executive authority—that inherent
power which I suppose has been discovered, by which the President.
at his discretion? can seize men, and imprison them, and send them
beyond seas for trial or punishment by a foreign power.
Hear Messrs. Staples and Sedgwick to the President of the United
States.
NEW YORK, September 13, 1839.
"Sir—We have been engaged as counsel of the Africans brought in by
the Spanish vessel, the Amistad;
and, in that capacity, take the liberty of addressing you this
letter.
"These Africans are now under indictment in the circuit court of
the second circuit, on a charge of piracy, and their defense to
this accusation must be established before that tribunal. But we
are given to understand, from authority not to be doubted, that a
demand has already been made upon the Federal Government, by the
Spanish minister, that these Negroes be surrendered to the
authorities of his country; and it is on this account that we now
address you.
"We are also informed, that these slaves are claimed under the 9th
article of the treaty of 1795, between this country and Spain by
which all ships and merchandise rescued out of the hands of
pirates and robbers on the high seas are to be restored to the
true proprietor, upon due and sufficient proof.
"We now apply to you, sir, for the purpose of requesting that no
order may be made by the Executive until the facts necessary to
authorize its interposition are established by the judicial
authority in the ordinary course of justice. We submit that this
is the true construction of the treaty; that it is not a mere
matter of Executive discretion; but that, before the Government
enforces the demand of the Spanish claimant, that demand must be
substantiated in a court of justice.
"It appears to us manifest that the treaty could never have meant
to have submitted conflicting rights of property to mere official
discretion; but that it was intended to subject them to the same
tribunals which, in all other cases, guard and maintain our civil
rights. Reference to the 7th article, in our opinion, will confirm
this position.
"It will he recollected that, that if we adopt this as the true
construction of the treaty, should any occasion ever arise when
our citizens shall claim the benefit of this section, Spain would
be at liberty to give it the same interpretation; and that the
rights of our citizens will be subjected to the control of
subordinate ministerial agents, without any of those safeguards
which courts of justice present for the establishment of truth and
the maintenance of rights. We submit, further, that it never could
be intended that the Executive of the Union should be harassed by
the investigation of claims of this nature, and yet, assuredly, if
the construction contended for be correct, such must be the
results for, if he is to issue the order upon due and sufficient
proof, the proof must be sufficient to his mind.
''We further submit, that, in regard to the Executive, there are
no rules of evidence nor course of proceeding established; and
that, in all such cases, unless the claimant be directed to the
courts of justice, the conduct of the affair must, of necessity,
be uncertain. vague, and not such as is calculated to inspire
confidence in the public or the parties. We can find nothing in
the treaty to warrant the delivery of these individuals as
offenders; and the Executive of the Union has never thought itself
obliged, under the laws of nations, to accede to demands of this
nature.
"Those suggestions are of great force in this case, because we,
with great confidence, assert, that neither according to the law
of this, nor that of their own country, can the pretended owners
of these Africans establish any legal title to them as slaves.
"These Negroes were, it is admitted, carried into Cuba contrary to
the provisions of the treaty between Spain and Great Britain of
1817, and of the orders made in conformity therewith; orders which
have been repented, at different times, to as late a date as the
4th November, 1838, by which the trade is expressly prohibited;
and if they had been taken on board the slaver, they would have
been unquestionably emancipated.
"They were bought by the present claimants, Messrs. Ruiz and
Montes, either directly from the slaver, or under circumstances
which must beyond doubt, have apprised them that they were
illegally introduced into the Havana; and on this state of facts
we, with great respect, insist that the purchasers of Africans
illegally introduced into the dependencies of a country which has
prohibited the slave trade, and who make the purchase with
knowledge of this fact, can acquire no right. We put the matter on
the Spanish law and we affirm, that Messrs. Ruiz and Montes hare
no title, under that law, to these Africans.
"If this be so, then these Negroes have only obeyed the dictates
of selfdefense. They have liberated themselves from illegal
restraint; and it is superfluous to say, that Messrs. Ruiz and
Montes have no claim whatever under the treaty.
"It is this question, sir, fraught with the deepest interest, that
we pray you to submit for adjudication to the tribunals of the
land. It is this question that we pray may not be decided in the
recesses of the cabinet, where these unfriended men can have no
counsel and can produce no proof, but in the halls of Justice,
with the safeguards that she throws around the unfriended and
oppressed.
"And, sir, if you should not be satisfied with the considerations
here presented, we then submit that we are contending for a right
upon a construction of a treaty: that this point, at least, should
be presented to the courts of justice; and, should you decide to
grant an order surrendering these Africans, we beg that you will
direct such notice of it to be given, as may enable us to test the
question as we shall be advised, by habeas corpus or otherwise.
"We have only, sir, to add, that we have perfect confidence that
you will decide in this matter with a single regard to the
interests of justice and the honor of the country, and that we
are, with the greatest respect, your most obedient servants,
"SETH P. STAPLES,
"THEODORE SEDGWICK, JR.
"MARTIN VAN BUREN, ESQ.
" President of the United States."
I read the whole of this letter, said Mr. Adams, to show that this
extraordinary course of proceeding was not entered upon by the
Executive without warning and counsel. The President of the United
States was informed, on the receipt of that letter, in the month of
September, 1839, of the deep principles, involving the very
foundation of the liberties of this country, that were concerned in
the disposal which the Executive might make of these men. That
letter was with the late Attorney General when he examined the case,
and when he made up his opinion. His opinion, addressed to the
Secretary of State, begins thus:
"Sir,—I have the honor to acknowledge
the receipt of yours of the 24th of September, in which, by
direction of the President, you refer to this office the letter of
the Spanish minister of the 6th of September, addressed to you;
also the letter of Seth P. Staples and Theodore Sedgwick, Jr.
Esqrs., who have been engaged as counsel for the Negroes. taken on
board the schooner Amistad,
addressed to the President of the United States; and asking my
opinion upon the different legal questions presented by these
papers.
" I have given to the subject all the consideration which its
importance demands, and now present to you, and through you to the
President, the result of my reflections upon the whole subject.
"The following is the statement of facts contained in your
communication: 'Fine Amistad
is a Spanish vessel; was regularly cleared from Havana, a Spanish
port in Cuba, to Guanaja, in the neighborhood of Puerto Principe,
another Spanish port; that her papers were regular; that the cargo
consisted of merchandise and slaves, and was duly manifested as
belonging to Don Jose Ruiz and Don Pedro Montes; that the Negroes
after being at sea a few days, rose upon the white persons on
board; that the captain, his slave and two seamen, were killed,
and the vessel taken possession of by the Negroes, that two white
Spaniards, after being wounded, were compelled to assist in
navigating the vessel, the Negroes intending to carry her to the
coast of Africa; that the Spaniards contrived, by altering the
courts of steering at night, to keep her on the coast of the
United States; that on seeing land off New York, they come to the
coast, and some of the Negroes landed to procure water and
provisions; that being on the point of leaving the coast, the Amistad was visited by a boat
from Captain Gedney's vessel, and that one of the Spaniards,
claiming protection from the officer commanding the boat, the
vessel and cargo, and all the persons on board, were sent into New
London for examination, and such proceedings as the laws of
nations and of the United States warranted and required."
Here the Court will see he assumes, through the whole argument that
these Negroes were slaves. This corresponds with the assumption of
the Executive, which Mr. Forsyth, in his letter to the Spanish
minister afterwards declared the Government had carried out, that
the Negroes were slaves, and that the only parties injured were
Montes and Ruiz. The late Attorney General says it appears that the
"cargo consisted of merchandise and slaves," that the papers were "
all regular," that after the capture of the vessel by the Negroes,
the two white Spaniards " were compelled to assist in navigating the
vessel, the Negroes intending to carry her to the coast of Africa,
"but" the Spaniards contrived, by altering the course of steering at
night, to bring her to the United States." This last is an admission
of some importance, as the Court will easily see, in deciding upon
the character of the voyage which the vessel was pursuing when taken
by Lieutenant Gedney. He proceeds to say:
In the intercourse and transactions between nations, it has been
found indispensable that due faith and credit should be given by
each to the official acts of the public functionaries of others.
Hence the sentences of prize courts under the laws of nations, or
admiralty, and exchequer or other revenue courts, under the
municipal law, are considered as conclusive as to the proprietary
interest in, and title to, the things in question; nor can the same
be examined into in the judicial tribunals of another country. Nor
is this confined to judicial proceedings! The acts of other officers
of a foreign nation, in the discharge of their ordinary duties, are
entitled to the like respect. And the principle seems to be
universally admitted, that, whenever power or jurisdiction is
delegated to any public officer or tribunal, and its exercise is
confided to his or their discretion, the acts done in the exercise
of that discretion, and within the authority conferred, are binding
as to the subject matter; and this is true, whether the officer or
tribunal be legislative, executive, judicial, or special.—Weaton's
Elements of International Law, page 121; 6th Peter's, page 729."
There is the basis of his opinion; that the comity of nations
requires, that such a paper, signed by the Governor General of Cuba,
is conclusive to all the world as a title to property. If the life
and liberty of men depends on any question arising out of these
papers, neither the courts of this country nor of any other can
examine the subject, or go behind this paper. In point of fact, the
voyage of the Amistad, for
which these papers were given, was but the continuation of the
voyage of the slave trader, and marked with the horrible features of
the middle passage. That is the fact in the case, but this
government and the courts of this country cannot notice that fact,
because they must not go behind that document. The Executive may
send the men to Cuba, to be sold as slaves, to be put to death, to
be burnt at the stake, but they must not go behind this document, to
inquire into any facts of the case. That is the essence of the who]e
argument of the late Attorney General. At a subsequent part of my
argument I shall examine this document, and I undertake to show that
it is' not even valid for what it purports to be, and that as a
passport it bears on its face the insignia of imposture. But at
present I will only observe that it is n most unheardof thing, that
in a question of property, a passport should be supposed to give a
valid title. Papers of foreign courts and functionaries are to be
credited for that which they intend to do. A passport, if it is
regular, is to be credited as a passport. But when was it ever
supposed that a passport stating what a person carries with him is
evidence of his property in that which is described ? All the
decisions of this court agree that foreign papers are good only for
that which they propose and purport, but not as evidence of
property. And yet the opinion of the late Attorney General rests on
that ground. In a case involving the lives and liberties of a large
number of men, he has not a word to say of the principles of justice
or humanity concerned, but goes entirely on the force of this
document, on the ground that we cannot go behind the certificate of
the Spanish Captain General. He says:
"Were this otherwise, all confidence and comity would cease to exist
among nations; and that code of international law, which now
contributes so much to the peace, prosperity and harmony of the
world, would no longer regulate and control the conduct of nations."
This principle of national comity, I have no desire to contest, so
far as it is applicable to this case. The Attorney says:—
"In the case of the Antelope, (10
Wheaton, page 66,) this subject was fully examined, and the
opinion of the Supreme Court of the United States establishes the
following points:—
"1. That, however unjust and unnatural the slave trade may be, it
is not contrary to the law of nations.
"2. That, having been sanctioned by the usage and consent of
almost all civilized nations, it could not be pronounced illegal,
except so far as each nation may have made it so by its own acts
or laws; and these could only operate upon itself, its own
subjects or citizens; and, of course, the trade would remain
lawful to those whose Government had not forbidden it.
"3. That the right of bringing in and adjudicating upon the case
of a vessel charged with being engaged in the slave trade, even
where the vessel belongs to a nation which has prohibited the
trade, cannot exist. The courts of no country execute the penal
laws of another, and the court of the American Government on the
subject of visitation and search would decide any case in which
that right had been exercised by an American cruiser, on the
vessel of a foreign nation not violating our municipal laws,
against the captors.
"It follows, that a foreign vessel engaged in the African slave
trade, captured on the high seas in time of peace, by an American
cruiser, and brought in for adjudication, would be restored.
"The opinions here expressed go far beyond the present case; they
embrace cases where the Negroes never have been within the
territorial limits of the nation of which the claimant is a
citizen."
Here reference is made to the case of the Antelope, in 10 Wheaton,
to which I shall hereafter solicit the particular attention of the
Court, as I purpose to examine it in great detail, as to all the
principles that have been supposed to be decided by that case, and
especially on the point here alluded to, concerning which Chief
Justice Marshall says that the Court was divided, therefore , no
principle is decided. That was the most solemn and awful decision
that ever was given by any Court. The Judges did not deliver their
opinions for publication, or the reasons, because the court was
divided. This case is laid at the foundation of the argument or
opinion of the Attorney General on which this whole proceeding is
based, and it is appealed to in all the discussions as authority
against the rights of these unfortunate people. I shall, therefore,
feel it to be my duty to examine it to the bottom.
The second principle drawn by the late Attorney General, if he had
reasoned on the subject as men ought to reason, is in favor of the
claims of the Africans. The Antelope was engaged in the slave trade
south of the Line, where it was not then prohibited by the laws of
Spain. The decision of the Supreme Court, such as it was, was in
affirmance of the decree of the court below. Judge Davies, in the
District Court of Georgia, and Judge Johnson, of the Circuit Court,
said that, if the slave trade had at that time been abolished by
Spain, their decision would have been otherwise. That trade is now
abolished by Spain.
The late Attorney General says "the courts of no country execute the
penal laws of another." I may ask, does any nation execute the slave
laws of another country? Is not the slave system, the Code Noir, as
peculiar as the revenue system or the criminal code? These men were
found free, and they cannot now be decreed to be slaves, but by
making them slaves. By what authority will this court undertake to
do this? What right has Ruiz to claim these men as his property,
when they were free, and so far from being in his possession when
taken, he was in theirs. If there is no right of visitation and
search by the cruisers of one nation over those of another, by what
right has this ship been taken from the men who had it in their
possession? The captors in this case, are Gedney and Meade, the
owners are the Africans. The Attorney says,
"This vessel was not engaged in the
slave trade; she was employed lawfully in removing these Negroes,
as slaves, from one part of the Spanish dominions to another,
precisely in the same way that slaves are removed, by sea, from
one slave State to another in our own country. I consider the
facts as stated, so far as this government is concerned, as
establishing a right of ownership to the Negroes in question, in
the persons in whose behalf the minister of Spain has made a
demand upon the government of the U. States."
Now, here I take issue The vessel was engaged in the slave trade.
The voyage in the Amistad was
a mere continuation of the original voyage in the Tecora. The voyage
in its original intention was not accomplished until the slaves had
reached their final destination on the plantation. This is the
principle universally applicable to coasting vessels. I say further,
that the object of Ruiz and Montes was illegal, it was a part of the
voyage from Lomboko, and when they fell into the hands of Lieutenant
Gedney, they were steering in pursuance of that original voyage.
Their object was to get to Porto Principe, and of course the voyage
was to them an unlawful one. The object of the Africans was to get
to a port in Africa, and their voyage was lawful. And the whole
character of the affair was changed by the transactions that fool;
place on board of the ship. The late Attorney, however, comes to the
conclusion that the courts of the United States cannot proceed
criminally against these people, that the provisions of the Acts of
Congress against the slave trade are not applicable to Ruiz and
Montes, and so he recurs to the 9th Article of the Treaty of 1795. I
have nothing to add to what I have before said respecting the
treaty. It can have no possible application in this case.
The late Attorney General now comes to a conclusion as to what is to
be done—a conclusion which it is not in my power to read to the
Court without astonishment, that such an opinion should ever have
been maintained by an Attorney General of the United States.
"My opinion further is, that the
proper mode of executing this article of treaty, in the present
case, would be for the President of the United States to issue his
order, directed to the Marshal in whose custody the vessel and
cargo are, to deliver the same to such persons as may be
designated by the Spanish minister to receive them. The reasons
which operate in favor of a delivery to the order of the Spanish
minister are—
"1. The owners of the vessel and cargo are not all in this country
and, of course, a delivery cannot be made to them.
"2. This has become a subject of discussion between the two
Governments, and, in such a case, the restoration should be made
to that agent of the Government who is authorized to make, and
through whom the demand is made.
"3. These Negroes are charged with an infraction of the Spanish
laws; therefore, it is proper that they should be surrendered to
the public functionaries of that Government, that if the laws of
Spain have been violated, they may not escape punishment.
"4. These Negroes deny that they are slaves; if they should be
delivered to the claimants, no opportunity may be afforded for the
assertion of their right to freedom. For these reasons, it seems
to me that a delivery to the Spanish minister is the only safe
course for this Government to pursue."
That is the opinion, which the Secretary of State told the Spanish
minister the American Cabinet had adopted! That these MEN, being at
that time in judicial custody of the Court of the United States,
should be taken out of that custody, under an order of the
President, and sent beyond seas by his sole authority! The Cabinet
adopted that opinion; why, then, did they not act upon it? Why did
not the President send his order to the Marshal to seize these men,
and ship them to Cuba, or deliver them to the order of the Spanish
Minister? I am ashamed! I am ashamed that such an opinion should
ever have been delivered by any public officer of this country,
executive or judicial. I am ashamed to stand up before the nations
of the earth, with such an opinion recorded as official, and what is
worse, as having been adopted by the government:—an opinion
sanctioning a particular course of proceeding, unprecedented among
civilized countries, which was thus officially sanctioned, and yet
the government did not dare to do it. Why did they not do it? If
this opinion had been carried into effect, it would have settled the
matter at once, so far as it related to these unfortunate men. They
would have been wrested from that protection, which above all things
was their due after they had been taken into custody by order of the
Court, and would have been put into the power of "public vengeance"
at Havana. Yet there was not enough. There seems to have been an
impression that to serve an order like that would require the aid of
a body of troope. The people of Connecticut never would, never ought
to have suffered it to be executed on their soil, but by main force.
So the Spanish minister says his government has no ship to receive
these people, and the President must therefore go further, and as he
is responsible for the safekeeping and delivery of the men, he must
not only deliver them up, but ship them off in a national vessel, so
that there may be no Habeas Corpus from the State Courts coming to
the rescue as soon as they are out of the control of the judiciary.
The suggestion, which first came from the District Attorney, that
the Court would undoubtedly place the Africans at the mercy of the
Executive, is carried out by an announcement from the Secretary of
State, of an agreement with Mr. Argaiz to send them to Cuba in a
public ship. Here is the memorandum of the Secretary of State to the
Secretary of the Navy.
"DEPARTMENT OF STATE, January 2,
1840.
"The vessel destined to convey the Negroes of the Amistad to Cuba, to be ordered
to anchor off the port of New Haven, Connecticut, as early as the
10th of January next, and be in readiness to receive said Negroes
from the marshal of the United States, and proceed with them to
Havana, under instructions to be hereafter transmitted.
"Lieutenant Gedney and Meade to be ordered to hold themselves in
readiness to proceed in the same vessel, for the purpose of
affording their testimony in any proceedings that may be ordered
by the authorities of Cuba in the matter.
"These orders should be given with special instructions that they
are not to be communicated to any one."
Well, the order was given by the Secretary of the Navy, that the
schooner Grampus should execute this honorable service.
The Secretary of the Navy to the
Secretary of State.
"NAVY DEPARTMENT, Jan. 2, 1840.
"SIR,—I have the honor to state that, in pursuance of the
memorandum sent by you to this department, the United States
schooner Grampus, Lieutenant Commanding John S. Paine, has been
ordered to proceed to the bay of New Haven, to receive the Negroes
captured in the Amistad.
The Grampus will probably be at the point designated a day or two
before the 10th inst., and will there await her final instructions
in regard to the Negroes."
A celebrated state prisoner, when going to the scaffold, was led by
the statue of Liberty, and exclaimed, " O, Liberty! how many crimes
are committed in thy name!" So we may say of our gallant navy, "What
crimes is it ordered to commit! To what uses is it ordered to be
degraded!"
On the 7th of January, the Secretary of State writes to the
Secretary of the Navy, acknowledging the receipt of his letter of
the 3d, informing him that the schooner Grampus would receive the
Negroes of the Amistad, "
for the purpose of conveying them to Cuba, in the event of their
delivery being adjudged by the circuit court, before whom the case
is pending." This singular blunder, in naming the court, shows in
what manner and with how little care the Department of State allowed
itself to conduct an affair, involving no less than the liberties
and lives of every one of my clients. This letter inclosed the order
of the President to the Marshal of Connecticut for the delivery of
the Negroes to Lieut. Paine. Although disposing of the lives of
forty human beings, it has not the form or solemnity of a warrant,
and is not even signed by the President in his official capacity. It
is a mere order.
"The Marshal of the United States for
the district of Connecticut will deliver over to Lieut. John S.
Paine, of the United States Navy, and aid in conveying on board
the schooner Grampus, under his command, all the Negroes, late of
the Spanish schooner Amistad,
in his custody, under process now pending before the Circuit court
of the United States for the district of Connecticut. For so
doing, this order will be his warrant.
"Given under my hand, at the city of Washington, this 7th day of
January, A. D. 1840.
"M. VAN BUREN.
"By the President:
"JOHN FORSYTH, Sec. of State."
That order is good for nothing at all. It did not even describe the
court correctly, under whose protection these unfortunate people
were. And on the 11th of January, the District Attorney had to send
n special messenger, who came, it appears all the way to Washington
in one day, to inform the Secretary that the Negroes were not holden
under the order of the Circuit Court but of the District Court. And
he says, "Should the pretended friends of the Negroes"—the pretended
friends!—" obtain a writ of Habeas Corpus, the Marshal could not
justify under that warrant." And he says, "the Marshal wishes me to
inquire "—a most amiable and benevolent inquiry—" whether in the
event of a decree requiring him to release the Negroes, or in case
of an appeal by the adverse party, it is expected the Executive
warrant will be executed" that is, whether he is to carry the
Negroes on board of the Grampus in the face of a decree of the
court. And he requests instructions on the point. What a pretty
thing it would have been, if he had received such instructions, in
the face of a decree of the court! I should like to ask him which he
would have obeyed. At least, it appears, he had such doubts whether
he should obey the decree of the court' that he wanted instructions
from the President. I will not say what temper it shows in the
Marshal and the District Attorney.
On the 12th of January, the very next day after the letter of the
District Attorney was written at New Haven, the Secretary of State
replies in a dispatch which is marked " confidential."
[CONFIDENTIAL.]
"DEPARTMENT OP STATE, Jan. 12, 1840.
"SIR,—Your letter of the 11th instant has just been received. The
order for the delivery of the Negroes of the Amistad is here with returned,
corrected agreeably to your suggestion. With reference to the
inquiry from the Marshal, to which you allude, I have to state, by
direction of the President, that, if the decision of the court is
such as is anticipated, the order of the President is to be
carried into execution, unless an appeal shall actually have been
interposed. You are not to take it for granted that it will be
interposed. And if, on the contrary, the decision of the court is
different, you are to take out an appeal, and allow things to
remain as they are until the appeal shall have been decided.
"I am, sir, your obedient servant,
"W. S. HOLABIRD, Esq.,
"Attorney U. S. for Dist. of Conn.
"JOHN FOR FORSYTH."
Now, may it please your Honors, this corrected order, the final
order of the President of the United States, is not in evidence, it
does not appear among the documents communicated to Congress, and I
feel some curiosity to know how it was corrected I have heard it
intimated that the President of the United States never knew it had
been changed, and that the alternative was made, perhaps by a clerk
in the State Department, just by drawing his pen through the word
circuit, and interlining the word district. I put it to your Honors
to say what sort of regard is here exhibited for human life and for
the liberties of these people. Did not the President know, when he
signed that order for the delivery of MEN to the control of an
officer of the navy to be carried beyond seas, he was assuming a
power that no President had ever assumed before, It is questionable
whether such a power could have been exercised by the most despotic
government of Europe. Yet this business was coolly dispatched by a
mere informal order, which order was afterwards altered by a clerk.
The Secretary of State further instructs the District Attorney, that
"if the decision of the Court shall be such as is anticipated, the
order of the President is to be carried into execution, unless an
appeal is actually interposed," and he is " NOT TO TAKE IT FOR
GRANTED THAT IT WILL BE INTERPOSED." The Government then confidently
"anticipated" that the Negroes would be delivered up; and the
Attorney was directed not to allow them a moment of time to enter an
appeal. They were to be put on board of the Grampus instantly, and
deprived, if possible, of the privilege of appealing to the higher
Courts. Was this JUSTICE?
But after all, the order did not avail. The District Judge, contrary
to all these anticipations of the Executive, decided that the
thirtysix Negroes taken by Lieut. Gedney and brought before the
Court on the certificate of the Governor General of Cuba, were
FREEMEN; that they had been kidnapped in Africa; that they did not
own these Spanish names; that they were not ladinos, and were not
correctly described in the passport, but were new Negroes bought by
Ruiz in the depot of Havana, and fully entitled to their liberty.
Such was the disposal intended, deliberately intended, by a
President of the United States to be made, of the lives and liberty
of thirtysix human beings!—The Attorney General of the United
States, at once an Executive and a judicial officer of the American
people, bound in more than official duty to respect the right of
personal liberty and the authority of the Judiciary Department had
given a written opinion, that, at the instigation of a foreign
minister, the President of the United States should issue his order,
directed to the marshal to whose custody these persons had been
committed, by order of the judge, as prisoners and witnesses, and
commanding that marshal to wrest them from the hands of justice, and
deliver them to such persons as should be designated by that same
foreign minister to receive them. Will this Court please to consider
for one moment, the essential principle of that opinion ? Will this
Court inquire, what, if that opinion had been successfully carried
into execution, would have been the tenure by which every human
being in this Union, man, woman, or child, would have held the
blessing of personal freedom? Would it not have been by the tenure
of Executive discretion, caprice or tyranny? Had the precedent once
been set and submitted to, of a nameless mass of judicial prisoners
and witnesses, snatched by Executive grasp from the protective
guardianship of the Supreme Judges of the land, (gubernativamente,)
at the dictate of a foreign minister, would it not have disabled
forever the effective power of the Habeas Corpus? Well was it for
the country—well V/OS it for the President of the United States
himself that he paused before stepping over this Rubicon !—[hat he
said—"We will proceed no further in this business." And yet, he did
not discard the purpose, and yet he saw that this executive
trampling at once upon the judicial authority and upon personal
liberty would not suffice, either to satisfy the Spanish Minister or
to satiate the public vengeance of the barracoon slave traders. Had
the unfortunate Africans been torn away from the protection of the
Court, and delivered up to the order of the Spanish Minister, he
possessed not the means of shipping them off to the Island of Cuba.
The indignation of the freemen of Connecticut, might not tamely
endure the sight, of thirtysix free persons, though Africans,
fettered and manacled in their land of freedom, to be transported
beyond the seas, to perpetual hereditary servitude or to death, by
the servile submission of an American President to the insolent
dictation of a foreign minister. There were judges of the State
Courts in Connecticut, possessing the power of issuing the Writ of
Habeas Corpus, paramount even to the obsequiousness of a federal
marshal to an Executive mandate. The opinion of the Attorney
General, comprehensive as it was for the annihilation of personal
liberty, carried not with it the means of accomplishing its object.
What then was to be done? To save the appearance of a violent and
shameless outrage upon the authority of the judicial courts, the
moment was to be watched when the Judge of the District Court should
issue his decree, which it was anticipated would be conformable to
the written opinion of the Attorney General. From that decree the
Africans would be entitled to an appeal, first to the Circuit and
eventually to the Supreme Court of the United States—but with
suitable management, by one and the same operations they might be
choused out of that right, the Circuit and Supreme Courts ousted of
their jurisdiction, and the hapless captives of the Amistad delivered over to
slavery and to death.
For this purpose at the suggestion of the District Attorney
Holabird, and at the requisition of the dictatorial Spanish
Minister, the Grampus, one of the smallest public vessels of the
United States, a schooner of burden utterly insufficient to receive
and contain under the shelter of her main deck, thirty six persons
additional to the ship's company, was in the dead of winter, ordered
to repair from the navy yard at Brooklyn to New Haven where the
Africans were upon trial, with this secret order which I have read
to the Court, signed "Martin Van Buren," commanding the Marshal of
the District of Connecticut to deliver over to Lieut. John S. Paine,
commander of the Grampus, and aid in conveying on board that
schooner all the Negroes, late of the Spanish schooner Amistad, in his custody, under
process [now] pending before the Circuit Court of the United States
for the District of Connecticut.
Of this ever memorable order, this Court will please to observe that
it is in form and phraseology, perfectly conformable to the written
opinion which had been given by the Attorney General. It is not
conditional, to be executed only in the event of a decision by the
court against the Africans, but positive and unqualified to deliver
up all the Africans in his custody, under process now pending. There
was nothing in the order itself to prevent Lieut. Paine from
delivering it to the marshal, while the trial was pending; it
carries out in form the whole idea of the Attorney General's
opinion, that the President's order to the marshal is of itself all
sufficient to supersede the whole protective authority of the
judiciary—and with this pretension on the face of the order, i6
associated another, if possible still more outrageous upon every
security to personal liberty, in the direction to the marshal to
deliver over to Lieut. Paine all the Negroes, late of the Amistad, under his custody.
Is it possible that a President of the United States should be
ignorant that the right of personal liberty is individual. That the
right to it of every one, is his own—JUS SUMM; and that no greater
violation of his official oath to protect and defend the
Constitution of the United States, could be committed, than by an
order to seize and deliver up at a foreign minister's demand, thirty
six persons, in a mass, under the general denomination of all, the
Negroes, late of the Amistad.
That he was ignorant, profoundly ignorant of this selfevident
truth, inextinguishable till under gilt framed Declarations of
Independence shall perish in the general conflagration of the great
globe itself. I am constrained to believe—for to that ignorance, the
only alternative to account for this order to the Marshal of the
District of Connecticut, is willful and corrupt perjury to his
official presidential oath.
But ignorant or regardless as the President of the United States
might be of the self evident principles of human rights, he was
bound to know that he could not lawfully direct the delivery up to a
foreign minister. even of slaves, of acknowledged undisputed slaves,
in an undefined, unspecified number. That the number must be
defined, and individuals specifically designated, had been expressly
decreed by the Supreme Court of the united States in that very case
of the Antelope so often, and as I shall demonstrate so erroneously
quoted as a precedent for the captives of the Amistad.
"Whatever doubts (said in that case Chief Justice Marshall) may
attend the question whether the Spanish claimants are entitled to
restitution of all the Africans taken out of their possession with
the Antelope we cannot doubt the propriety of demanding ample proof
of the extent of that possession. Every legal principle which
requires the plaintiff to prove his claim in any case, applies with
full force to this point; and no countervailing consideration
exists. The onus probandi, as to the number of Africans which were
on board, when the vessel was captured, unquestionably lies on the
Spanish libellants. Their proof is not satisfactory beyond 93. The
individuals who compose this number must be designated to the
satisfaction of the Circuit Court." l0 Wheaton 128. And this
decision acquires double authority, as a precedent to establish the
principles which it affirms, inasmuch as it was given upon appeal,
and reversed the decision of the Circuit Court, which had resorted
to the drawing of lots; both for the designation of the number' and
for the specification of individuals.
Lawless and tyrannical; (may it please the Court—Truth, Justice, and
the Rights of humankind forbid me to qualify these epithets) Lawless
and Tyrannical, as this order thus was upon its face, the cold
blooded cruelty with which it was issued—was altogether congenial to
its spirit—I have said that it was issued in the dead of winter—and
that the Grampus was of so small a burden as to be utterly unfit for
the service upon which she was ordered. I now add that the gallant
officer who commanded her remonstrated, with feelings of
indignation' controlled only by the respect officially due from him
to his superiors against it. That he warned them of the
impossibility of stowing this cargo of human flesh and blood beneath
the deck of the vessel, and that if they should be shipped in the
month of January, on her deck, and the almost certain casualty if a
storm should befall them on the passage to Cuba, they must all
inevitably perish. He remonstrated in vain! He was answered only by
the mockery of an infraction, to treat his prisoners with all
possible tenderness and attention.— If the whirlwind had swept them
all into the ocean he at least would have been guiltless of their
fate.
But although the order of delivery was upon its face absolute and
unconditional, it was made conditional, by instructions from the
Secretary of State to the District Attorney. It was to be executed
only in the event of the decision of the court being favorable to
the pretended application of the Spanish minister, and Lieutenant
Paine was to receive the Negroes from the custody of the marshal as
soon as their delivery should have been ordered by the court.
"Letting I dare not wait upon I would," a direct collision with the
authority of the judicial tribunals was cautiously avoided; and a
remarkable illustration of the thoughtless and inconsiderate
character of the whole Executive action in this case, appears in the
fact, that with all the cunning and intricate stratagems to grab and
ship off these poor wretches to Cuba, neither the President of the
United States who signed, nor the Secretary of State who transmitted
the order knew, but both of them mistook the court, before which the
trial of the Africans was pending. The supposed it was the Circuit,
when in fact it was the District Court.
The Grampus arrived at New Haven three days before the decision of
Judge Judson was pronounced. Her appearance there, in January, when
the ordinary navigation of Long Island Sound is suspended, coming
from the adjoining naval station at Brooklyn, naturally excited
surprise, curiosity, suspicion. What could be the motive of the
Secretary of the Navy for ordering a public vessel of the United
States upon such a service at such a time
Why should her commander, her officers and crew be exposed, in the
most tempestuous and the coldest month of the year, at once to the
snowy hurricanes of the northeast, and the icebound shores of the
northwest? These were questions necessarily occurring to the minds
of every witness to this strange and sudden apparition. Lieut. Paine
and his officers were questioned why they were there, and whither
they were bound ? They could not tell. The mystery of iniquity
sometimes is but a transparent veil and reveals its own secret. The
fate of the Amistad
captives was about to be decided as far as it could be by the judge
of a subordinate tribunal. The surrender of them had been demanded
of the Executive by a foreign minister, and earnestly pressed upon
the court by the President's officer, the District Attorney. The
sudden and unexpected appearance of the Grampus, with a destination
unavowed, was a very intelligible signal of the readiness' of the
willingness, of the wish of the President to comply with the foreign
minister's demand. It was a signal equally intelligible to the
political sympathies of a judge presumed to be congenial to those of
a northern President with southern principles, and the District
Attorney in his letter of 20th December had given soothing hopes to
the Secretary of State, which he in turn had communicated in
conference, on the 28th of December, to the Spanish minister, that
the decree of the judge, dooming the Africans to servitude and death
in Cuba, would be as pliant to the vengeful thirst of the barracoon
slavetraders, as that of Herod was in olden times to the demand of
his dancing daughter for the head of John the Baptist in a charger.
But when Lieut. Paine showed to the District Attorney the Executive
warrant to the marshal for the delivery of the Negroes, he
immediately perceived its nullity by the statement that they were in
custody under a process from the " Circuit Court" and that the same
error had been committed in the instructions to the marshal. "In
great haste," therefore, he immediately dispatched Lieut. Meade, as
a special messenger to Washington, requesting a correction of the
error in the warrant and instructions; giving notice that if the
pretended friends of the Negroes obtain a writ of habeas corpus, the
marshal could not justify under the warrant as it was; and that the
decision of the court would undoubtedly be had by the time the
bearer of the message would be able to return to New Haven.
This letter was dated the 11th of January, 1840. The trial had
already been five days "progressing." The evidence was all in, and
the case was to be submitted to the court on that day. Misgivings
were already entertained that the decision of the judge might not be
so complacent to the longings of the Executive department as had
been foretold and almost promised on the 20th of December. Mr.
Holabird, therefore, at the desire of the Marshal propounds that
decent question, and requests precise instructions,'` whether in the
event of a decree by the court requiring the Marshal to release the
Negroes, or in case of an appeal by the adverse party, it was
expected the EXECUTIVE warrant [to ship off the prisoners in the
Grampus to Cuba,] would be executed?" These inquiries may account
perhaps for the fact that the same Marshal, after the District and
Circuit Courts had both decided that these Negroes were free, still
returned them upon the census of the inhabitants of Connecticut as
Slaves.
The Secretary of State was more wary. The messenger, Lieut. Meade,
bore his dispatch from New Haven to Washington in one day. On the
12th of January, Mr. Forsyth in a confidential letter to Mr.
Holabird informs him that his missive of the day before had been
received. That the order for the delivery of the Negroes to Lieut.
Paine of the Grampus was returned, corrected agreeably to the
District Attorney's suggestion—by whom corrected no uninitiated man
can tell. Of the final warrant of Martin Van Buren, President of the
United States, to the Marshal of the District of Connecticut, to
ship for transportation beyond the seas, an undefined, nameless
number of human beings, not a trace remains upon the records or the
files of any one of the Executive Departments, and when nearly three
months after this transaction the documents relating to it were,
upon a call from the House of Representatives, communicated to them
by massage from Mr. Van Buren himself, this original, erroneous,
uncorrected order of the 7th of January, 1810, was the only one
included in the communication.
But in the confidential answer of the Secretary of State of the 12th
of January to the inquiries of the Marshal, he says, " I have to
state by direction of the President, that if the decision of the
Court is such as is anticipated, (that is, that the captives should
be delivered up as slaves,) the order of the President is to be
carried into execution, unless an appeal shall actually have been
interposed, you are not to take it for granted that it will be
interposed. And if on the contrary the decision of the Court is
different, you are to take out an appeal, and allow things to remain
as they are until the appeal shall have been decided." The very
phraseology of this instruction is characteristic of its origin, and
might have dispensed the Secretary of State from the necessity of
stating that it emanated from the President himself. The inquiry of
the Marshal was barefaced enough; whether, if the Executive warrant
and the judicial decree should come in direct conflict with each
other, it was expected that he should obey the President, or the
Judge ? No ! says the Secretary of State. If the decree of the Judge
should be in our favor, and you can steal a march upon the Negroes
by foreclosing their right of appeal, ship them off without mercy
and without delay: and if the decree should be in their favor, fail
not to enter an instantaneous appeal to the Supreme Court where the
chances may be more hostile to self emancipated slaves.
Was ever such a scene of Liliputian trickery enacted by the rulers
of a great, magnanimous, and Christian nation? Contrast it with that
act of self emancipation by which the savage, heathen barbarians
Cinque and Grabeau liberated themselves and their fellow suffering
countrymen from Spanish slavetraders, and which the Secretary of
State, by communion of sympathy with Ruiz and Montes, denominates
lawless violence. Cinque and Grabeau are uncouth and barbarous
names. Call them Harmodius and Aristogiton, and go back for moral
principle three thousand years to the fierce and glorious democracy
of Athens. They too resorted to lawless violence, and slew the
tyrant to redeem the freedom of their country. For this heroic
action they paid the forfeit of their lives: but within three years
the Athenians expelled their tyrants themselves, and in gratitude to
their selfdevoted deliverers decreed, that thenceforth no slave
should ever bear either of their names. Cinque and Grabeau are not
slaves. Let them bear in future history the names of Harmodius and
Aristogiton.
This review of all the proceedings of the Executive I have made with
the utmost pain, because it was necessary to bring it fully before
your Honors, to show that the course of that department had been
dictated, throughout, not by justice but by sympathy—and a sympathy
the most partial and unjust. And this sympathy prevailed to such a
degree, among all the persons concerned in this business, as to have
perverted their minds with regard to all the most sacred principles
of law and right, on which the liberties of the people of the United
States are founded; and a course was pursued, from the beginning to
the end, which was not only an outrage upon the persons whose lives
and liberties were at stake, but hostile to the power and
independence of the judiciary itself.
I am now, may it please your Honors, obliged to call the attention
of the Court to a very improper paper, in relation to this case,
which was published in the Official Journal of the Executive
Administration, on the very day of the meeting of this Court, and
introduced with a commendatory notice by the editor, as the
production of one of the brightest intellects of the South. I know
not who is the author, but it appeared with that almost official
sanction, on the day of meeting of this Court. It purports to be a
review of the present case. The writer begins by referring to the
decision of the District Court and says the case is "one of the
deepest importance to the southern states." I ask, may it please
your Honors, is that an appeal to JUSTICE? What have the southern
states to do with the case, or what has the case to do with the
southern states? The case, as far as it is known to the courts of
this country, or cognizable by them, presents points with which the
southern states have nothing to do It is a question of slavery and
freedom between foreigners; of the lawfulness or unlawness of the
African slave trade; and has not, when properly considered, the
remotest connection with the interests of the southern states.
What was the purpose or intent of that article, I am not prepared to
say, but it was evidently calculated to excite prejudice, to arouse
all the acerbities of feeling between different sections of this
country, and to connect them with this case, in such a manner as to
induce this Court to decide it is favor of the alledged interests of
the southern states, and against the suppression of the African
slave trade. It is not my intention to review the piece at this
time. It has been done, and ably done, by more than one person. And
after infinite difficulty, one of these answers has been inserted in
the same official journal in which the piece appeared. I now wish
simply, to refer your Honors to the original principle of slavery'
as laid down by this champion of the institution. It is given by
this writer as a great principle of national law and stands as the
foundation of his argument. I wish, if your Honors deem a paper of
this kind, published under such circumstances, worthy of
consideration in the decision of a case, that your Honors would
advert to that principle, and say whether it is a principle
recognized by this Court, as the ground on which it will decide
cases.
"The truth is, that property in man has existed in all ages of the
world, and results from the natural state of man, which is war. When
God created the first family and gave them the fields of the earth
as an inheritance, one of the number, in obedience to the impulses
and passions that had been implanted in the human heart, rose and
slew his brother. This universal nature of' man is alone modified by
civilization and law. War, conquest, and force, have produced
slavery, and it is state necessity and the internal law of self
preservation, that will ever perpetuate and defend it."
There is the principle, on which a particular decision is demanded
from this Court, by the Official Journal of the Executive, on behalf
of the southern states? Is that a principle recognized by this
Court? Is it the principle of that DECLARATION? [Here Mr. A. pointed
to the Declaration of Independence, two copies of which hang before
the eyes of the Judges on the bench.] It is alleged in the Official
Journal, that war gives the right to take the life of our enemy, and
that this confers a right to make him a slave, on account of having
spared his life. Is that the principle on which these United States
stand before the world? That DECLARATION says that every man is
"endowed by his Creator with certain inalienable rights," and that
among these are "life, liberty, and the pursuit of happiness.'' if
these rights are inalienable, they are incompatible with the rights
of the victor to take the life of his enemy in war, or to spare his
life and make him a slave. If this principle is sound, it reduces to
brute force all the rights of man. It places all the sacred
relations of life at the power of the strongest. No man has a right
to life or liberty, if he has an enemy able to take them from him.
There is the principle. There is the whole argument of this paper.
Now I do not deny that the only principle upon which a color of
right can be attributed to the condition of slavery is by assuming
that the natural state of man is war The bright intellect of the
South, clearly saw, that without this principle for a corner stone,
he had no foundation for his argument. He assumes it therefore
without a blush, as Hobbes assumed it to prove that government and
despotism are synonymous words. I will not here discuss the right or
the rights of slavery, but I say that the doctrine of Hobbes, that
War is the natural state of man, has for ages been exploded, as
equally disclaimed and rejected by the philosopher and the
Christian. That it is utterly incompatible with any theory of human
rights, and especially with the rights which the Declaration of
Independence proclaims as selfevident truths. The moment you come,
to the Declaration of Independence, that every man has a right to
life and liberty, an inalienable right, this case is decided. I ask
nothing more in behalf of these unfortunate men, than this
Declaration. The opposite principle is ]aid down, not by an
unintelligent or unthinking man, but is given to the public and to
this Court, as coming from one of the brightest intellects of the
South. Your Honors see what it comes to, when carried out. I will
call the attention of the Court to one more paragraph:—
"Instead of having the Negroes placed
in a situation to receive punishment for what offenses they may
have committed against their masters, those who have been in Cuba
in undisputed possession of property under the Spanish flag were
instantly deprived of that possession, and their final title to
the property peremptorily decided upon by an American court, in
defiance of the plainest treaty stipulations. Not only that, but
Ruiz and Montes, Spanish citizens, thus forced into our territory
under appalling circumstances, where common humanity, independent
of all law, demanded that they should be treated with hospitality
as unfortunate guests were actually thrown into prison under
charges which the Negroes were instigated to make, for offenses
committed against the Negroes while they were in Cuba, under the
Spanish jurisdiction. This is the justice of an American court,
bowed down in disgraceful subserviency before the bigoted mandates
of that blind fanaticism which prompted the Judge upon the bench
to declare in his decree, in reference to one of these Negroes,
that, 'Although he might be stained with crime, yet he should not
sigh in vain for Africa ;' and all because his hands were reeking
with the blood of murdered white men! ! It is a base outrage (I
can use no milder language,) upon all the sympathies of civilized
life."
That is the complimentary manner in which the courts of the United
States are treated by the brightest intellects of the South, in the
Official Journal, and under the immediate supervision of the
Executive Administration of the Government.
During the present session, a further correspondence between the
Secretary of State and the Spanish minister has been communicated to
Congress. The Spanish minister seems to be ever attentive to all
that is going on, in all the departments of Government, with
relation to this case. In a letter dated the 20th of March, 1840, he
observes that the Secretary of State had confidently asked him to
furnish a copy of the existing laws of Cuba relative to Negro
slavery. What was this for? Was the President of the United States
under the impression that before he carried into effect this
exercise of despotic power, to seize MEN, by his own warrant, and
send them to foreign countries for punishment by his own order—there
would be some sort of decency, at least, in having a show of
evidence to show that the Spanish law required that they should be
delivered up? The Secretary of State asked Mr. Calderon for evidence
in the case, but he had none to give He then "confidently" asked Mr.
Argaiz for the law of Spain in the case—the law, be it remembered,
on which the United States were presenting a suit against
individuals, solely, as they alledge, in pursuance of a demand made
by the minister of Spain to that effect. What is the reply ? Mr.
Argaiz says he cannot communicate the law officially because he
cannot recognize the jurisdiction of the Court over the case. Here
is another pointblank contradiction of the serial averment of the
claim which the United States Government is prosecuting here— that
the suit is in pursuance of the demand of Spain now pending against
the Government. Mr. Argaiz, therefore, communicates a certain
memorandum, "confidentially." This memorandum begins.
"Mr. Forsyth way pleased, some time
since, to state to the Chevalier de Argaiz, that it would be
expedient to obtain a copy of the laws now in force in the island
of Cuba relative to slavery The Chevalier de Arnaiz therefore
immediately requested from the Captain General of that island
every thing on the subject, which has been determined since the
treaty concluded in 1818, between Spain and England."
Now, may it please the Court, may I inquire why this demand was
limited to laws subsequent to the treaty of 1818? The decree for
abolishing the slave trade was issued in 18l7. Why did the Spanish
minister limit his request to laws passed after 1818? Why was not
the decree of 1817 brought forward? Was it kept back because he
thought, with Mr. Vega, that the laws had been broken so much in
Cuba, that they were not in force ? Or did he think the
authentication of that Decree might have some injurious effect in
the trial here ? Whatever was the reason, it is certain that, to Mr.
Forsyth's request for " a copy of the laws now in force in the
Island of Cuba relative to slavery," only the laws since 1818 were
communicated, and the Decree of 1817, making the slave trade
unlawful and its victims free, was kept beck. Even the treaty of
1835, which was communicated, " the Chevalier de Argaiz requests
maybe returned to him," and consequently it does not appear among
these papers.
In another letter, dated April 24th, 1840, the Chevalier de Argaiz
refers to certain resolutions of the United States Senate passed the
15th of the same month, commonly called Mr. Calhoun's resolutions. I
showed the other day, that if these principles are just, and if they
have any application to this case, Lieut. Gedney had no right to
seize the vessel at all. The resolution declares that—
"A ship or vessel on the high seas,
in time of peace, engaged in a lawful commerce, is, according to
the laws of nations, under the exclusive jurisdiction of the State
to which her flag belongs; as much so as if constituting a part of
its own domain ;" and " if such ship or vessel should be forced,
by stress of weather, or other unavoidable cause, into the port
and under the jurisdiction of a friendly power, she, and her
cargo, and persons on board, with their property, and all the
rights belonging to their personal relations as established by the
laws of the state to which they belong, would be placed under the
penalty which the laws of nations extend to the unfortunate under
such circumstances."
Here it is plain that the vessel was in the hands of the Africans,
it was not under the Spanish flag, they were at peace with the
United States, their voyage is lawful, the personal relations
established among the persons Oh board were that the Africans were
masters and the Spaniards captives subjects;—perhaps by the laws of
Mendi they were slaves. So much for the resolutions, which the
Secretary of State says coincide "with principles which the
President considers as founded in law and justice," but which does
not alter "the determination he found himself obliged to make on the
reclamation" made for the Amistad
" and the property found on board of her."
I will now make a few observations on the passport, or permit, as it
has been called, which is relied on as of authority sufficient to
bind this Court and Government to deliver up my clients irrevocably
as slaves, on a claim of property by Ruiz and Montes... Here we have
what appears to be a blank passport, filled up with fortynine
Spanish names of persons, who are described as ladinos and as being
the property of Don Jose Ruiz. Now, this on the face of it is an
imposture. It is not a passport, that can be inspected as such by
this Court, or by any tribunal. It appears on the face of it to be a
passport designed for one person, a man, as there are blanks in the
margin, to be filled up with a description of the person, as to his
height, age, complexion, hair, forehead, eyebrows, eyes, nose,
mouth, beard, and particular marks. This particular description of
the person is the very essence of a passport, as it is designed to
identify the individual by the conformity of his person to the marks
given; and a passport is nothing, and is good for nothing, if it
does not accord with the marks given. The man who presents it must
show by this accordance that he is the person named Every body who
has ever had occasion to use passports knows this. We are not in the
habit of using passports in this country; you may go through the
country from State to State, freely without any passport to show who
and what you are and what is your business. But throughout the
continent of Europe, passports are everywhere necessary. At every
town you show your passport to a public officer, who instantly
compares your person with the description' and if it corresponds,
you proceed, but if the description varies from the reality, you
cannot pass. That is the nature of a passport. It says, let the
person who bears these marks pass the customhouse, or the guard, as
the case may be. And its validity depends on the accuracy of the
description.
I once had occasion, many years ago to see the operation of these
things in a very remarkable case. I was a passenger in n merchant
vessel, bound to the north of Europe. In passing through the Sound,
at Elsinore, we were arrested by a British squadron, who brought us
to, and sent a lieutenant on board to examine our crew. He ordered
all the men to be mustered on deck, and the captain had no
alternative but to comply. It was a most mortifying scene to an
American. Every American seaman was obliged to show his protection,
the same thing at sea as a passport on the land, to secure him from
impressment by British cruisers. The officer examined every man
carefully, to see whether his person corresponded with the
description in his protection. He finally found one young man, who
was a native of Charlestown, Massachusetts, within ten miles of
where I was born; but his description was not correct, whether
through the blunder of the man who wrote it, or because he had taken
another man's protection, I do not know, but the officer said he had
a good mind to take him, and if I had not been on board, as the
bearer of a public commission in the service of the Government, I
have no doubt that man would have been taken, and compelled to serve
on board a British man of war, solely for the want of correspondence
of the description with his person. I mention this to show that the
value of a passport, according to the rules of those countries where
such things are used, depends on the description of the person, and
this is all left blank in the paper here presented us as a passport.
There is not a particle of description by which even a single
individual named could be identified. It is not worth a cent. I do
not say it is a forgery, but I say its incompetency to answer the
purpose of n passport is apparent on the face of it. Who knows, or
how is this Court to ascertain, that the persons named in this paper
are the same with those taken in the Amistad? No court, no tribunal, no officer, would
accept such a document as a passport. And will this Court grant its
decree in a case affecting both liberty and life on that paper ? It
is impossible.
I now come to the case of the Antelope, as reported in 10
Wheaton, 66, and I ask particular attention to this case, not only
because it brings a show of authority in favor of the delivery up
of slaves, but because I feel bound to entreat the Court, whether
they find a principle settled by that case or not, to settle the
question now upon further and mature consideration. Chief Justice
Marshall said, expressly, in delivering the opinion of the Court,
that, as the Court was divided, " no principle is settled." If
there was a principle settled, and that was in favor of delivering
up persons held as slaves by foreign laws, I ask this Court to
reexamine that principle and settle it anew. And if, upon
reexamination, by what [ should deem the greatest misfortune to
this country, the Court should be divided in this case, as it was
in that, I respectfully ask your Honors to give your separate
opinions, with the reasons. I would not call in question the
propriety of the determination of the Court in that day,
severally, to withhold their reasons from the public; the state of
the matter is now materially altered. It has become a point in
which the morals, as well as the liberties of this country, are
deeply interested. The public mind acquiesced before, in
postponing the discussion, but now it is no longer a time for this
course, the question must be met, and judicially decided.
THE CASE OF THE ANTELOPE REVIEWED.
The case of the Antelope was of so very extraordinary a character,
and the decisions of the District, Circuit, and Supreme Courts of
the United States, on the principles involved in it, were so
variant from and conflicting with one another, that a review of
its history will disclose, eminently, the progress of that moral,
religious, and political revolution in the opinions of mankind
which has been, from a period coeval with that of North American
Independence, struggling against the combined powers and dominions
of the earth and of darkness for the suppression of the African
slave trade.
In the month of December, 1819, at a time when piracy, from her
sympathetic and favorite haunts of Chesapeake bay, and of Cuba,
was habitually sallying forth against the commerce of the world,
but chiefly under the many colored banners of the newly
emancipated colonies of Spain, transformed into a multitude of
selfconstituted sovereign and disunited States, capturing
wherever they could be found the trading vessels of Portugal and
of Spain, a privateer, named the Columbia, commanded by a citizen
of the United States named Metcalf, came into the port of
Baltimore under the flag of Venezuela—there clandestinely shipped
a crew of thirty or forty men, not one of whom had ever owed
allegiance to the Republic of Venezuela, and sailed in search of
adventure, to pounce upon the defenseless upon any and every ocean
for the spoils. She had scarcely got beyond the territorial
jurisdiction of the United States when she changed her name of
Columbia for that of Arraganta, hoisted the flag of Artigas, then
ruler of the Oriental Republic of La Plata, and proceeded for the
slavecoast of Africa—a mighty huntress, and her prey was man.
There she fell in with sister pirates in abundance—first an
American, from Bristol, Rhode Island, and borrowed twentyfive
Negro captives from her; then sundry ostensible Portuguese
vessels, from which she took nearly two hundred; and lastly, a
Spaniard from Cuba, fitted out some months before by a slave
trading house at the Havana, to catch a yet lawful human cargo
from a region south of the equator; for the trade north of the
equator had even then been declared unlawful by Spain. The name of
this vessel was, at that time, the Antelope; and with her and her
living merchandise the Arraganta steered for the coast of Brazil,
for a market. There the Arraganta was shipwrecked; her master,
Metcalf, either drowned, or made prisoner with the greater part of
his crew; while the remainder, under the command of John Smith, a
citizen of the United States, transhipping themselves and all
their surviving African captives into the Antelope, changed her
name to that of the General Ramirez, and stood for the southern
coast of the United States, and a market.
In the month of June, 1820, this vessel, thus freighted, was found
hovering on the coast of Florida, with the evident intention of
surreptitiously introducing the Negroes and effecting the sale of
them within the United States. She was there in flagrant violation
of two classes of their laws—those intended to suppress the
unlawful interference of our citizens in the civil war then raging
between Spain and her South American Colonies contending for their
independence, and those prohibiting their participation in the
slave trade, and denouncing it as piracy.
She was reported to Captain John Jackson, then cruising on the
same coast in the Revenue Cutter Dallas, as a vessel of piratical
appearance. He, thereupon, boarded her; and finding her full of
Negro slaves, and commanded by John Smith, holding forth at once a
privateering commission from Artigas, and a protection as an
citizen and seaman of the United States, he took possession of
her, and brought her into the port of Savannah, in the judicial
district of Georgia, for adjudication.
Upon this plain and simple statement of facts, can we choose but
exclaim, if ever soul of an American citizen was polluted with the
blackest and largest participation in the African slavetrade,
when the laws of his country had pronounced it piracy, punishable
with death, it was that of this same John Smith He had renounced
and violated those rights, by taking a commission from Artigas to
plunder the merchants and mariners of nations in friendship with
his own; and yet he claimed the protection of that same country
which he had abandoned and betrayed. Why was he not indicted upon
the act of 15th May, 1820, so recently enacted before the
commission of his last and most atrocious crime?
And can we choose but further exclaim—if ever hapless African,
Kidnapped into slavery by one gang of ruffians, and then stolen by
another, and by them attempted to be smuggled into our country as
slaves, and by n fortunate casualty brought within our
jurisdiction and the beneficent operation of our emancipating law,
was entitled to the blessing of freedom, and the right of being
transported under our national protection to his native land, so
was every individual African found by Captain Jackson on board of
the Antelope, and brought within the jurisdiction of this Federal
Union. Why were they not instantly liberated and sent home to
Africa by the act of March 3d, 1819. Alas! far other. wise was, in
the judicial district of Georgia, the disposal of this pirate,
robber, and traitor to his country! Instead of being indicted for
all or any one of his many violations of the laws of the United
States, of nations, and of humanity, he was not only suffered to
go at large, entirely unmolested, but was permitted to file his
claim, before the District Court of the United States in Georgia,
for the restitution to him of the Antelope and all her living
cargo, as captured jure beli), by virtue of his commission from
Artigas. This claim was, indeed, dismissed, with costs, by the
judge of the District Court, William Davis. Smith appealed from
that decision to the Circuit Court, the presiding judge of which,
William Johnson, confirmed the decision of the District Court, and
spoke with suitable severity, not of the wickedness, but of the
absurdity of Smith's pretension. And here, and in freely
commenting hereafter upon the opinions and decisions upon this
case, of these two judges, William Davis and William Johnson, both
long since deceased, truth and justice require the remark, with
all the respect due to their memories as upright judges and
honorable men, that they were both holders of slaves, adjudicating
in a State where slavery is the law of the land. If this
circumstance may account for the fact, that the ministers of
national justice in Georgia slumbered over the manifold
transgressions of John Smith, for, which he never was prosecuted,
it will account no less for that division of opinion in the
Supreme tribunal of the Union, which veiled from public
examination and scrutiny the reasons of each judge for his own
opinion, because, as the Chief Justice declared, NO PRINCIPLE WAS
SETTLED. John Smith did not venture to appeal from the decisions
of the District and Circuit Courts against his claim to the
Supreme Court of the United States. His plunder slipped from his
hands; but his treachery to his country for a commission from
Artigas, his buccanier and slave trade piracies, though not even
undivulged crimes, yet remained unwhipped of justice.
On the 27th of July, 1820, Captain John Jackson, in behalf of
himself, and of the officers and crew of the Revenue Cutter
Dallas, filed in the District Court a libel against the Antelope,
or General Ramirez, for forfeiture, under the act of Congress of
20th April, 1818, prohibiting American citizens from engaging in
the African slave trade.
At the same Court, Charles Mulvey, viceconsul of Spain, and
Francis Sorell, viceconsul of Portugal, at Savannah, filed each a
libel for restitution, the former of 150, the latter of 130
African Negroes, composing the cargo of the Antelope. To these two
libels Richard Habersham, district attorney of the United States,
interposed in their name a claim to the freedom of all the
Negroes, on the ground that some American citizen was interested
or engaged in their transportation from Africa.
The Spanish vice consul claimed the vessel and all the Negroes in
behalf of the original fitters out of the Antelope, for the slave
trading voyage, at the Havana.
And Captain Jackson claimed salvage for all the Negroes who might
be adjudged to the Spanish and Portuguese vice consuls; and twenty
five dollars a head for all those who might be declared free,
according to the act of Congress.
The judge of the District Court, after rejecting the claim of John
Smith, on the ground of the illegality of the fitting out of the
Columbia, or Arraganta, at Baltimore, and thereby settling the
principle, that no capture made by that vessel could be legal,
seems to have forgotten, or overlooked, the violation by the same
John Smith of the laws of the United States for the suppression of
the slave trade; at least, so far as concerned all the Negroes on
board the Antelope, excepting only a small remnant of twenty-five,
which had been taken from the American slave trader, the Exchange,
from Bristol, Rhode Island. John Smith had made no attempt to
smuggle these into the United States separate from the rest. His
attempt had been to smuggle them all in. Why, then, should those
taken from the American vessel alone be declared free, and those
taken from the Spaniards and Portuguese doomed to perpetual
slavery?
The judge hunted up sundry old decisions in the Supreme Court of
the United States, and, finally, the case of the Josafa et
Segunda, 5 Wheaton, 338, for a principle "that, upon a piratical
or illegal capture, the property of the original owners cannot be
forfeited for the misconduct of the captors in violating the
municipal laws of the country where the vessel seized by them is
carried." The application of which principle to the rights of the
respective parties in the case of the Antelope was, that the
property of the Spanish owners of the Antelope could not be
forfeited by the misconduct of John Smith in capturing it, in
violation of the laws of the United States, by virtue of a
commission from Artigas. Thus far the principle was correctly
applied; but to that other misconduct of John Smith, the attempt
to smuggle these Negroes into the United States, by which they
became forfeited, and made free by the law, whoever might have
been their owner; to that misconduct, the precedent of the Josafa
et Segunda had no application whatever, and it was altogether
overlooked in the decision of the district judge, although he
decreed freedom to the chance chosen survivors of the twentyfive
Negroes of the very same cargo, taken from the American vessel,
though forfeited and liberated by the very same attempt of John
Smith to smuggle them into the United States for sale. It was
perfectly immaterial to the question of forfeiture and liberation
to whom all or any of the Negroes had originally belonged. It was
the attempt to smuggle them which induced their forfeiture by the
rigor, and their consequent liberation by the beneficence, of the
law.
But having once introduced this entirely extraneous question, to
whom the Negroes on board the Antelope, when captured by Captain
Jackson, had originally belonged the District Judge proceeded,
upon such evidence as he deemed sufficient, to decide, that those
captured in her by the Arraganta, were the property of Spaniards,
and without one title of evidence, to infer, that all the Negroes
taken from vessels under Portuguese colors, had been the property
of Portuguese subjects, unknown; and upon these conclusions and
assumptions, to adjudge all the Negroes, save the scanty surviving
remnant of twenty five taken from the Exchange of Rhode Island, to
the Spanish and Portuguese Vice Consuls.
At this distance of time, who can read such an adjudication of an
American judge, without amazement.
The claim of C. Mulvey [Spanish Vice Consul] was therefore
sustained to the Antelope, and to as many of the Negroes, as
should appear to be remaining of those found on board of her at
the time of her capture by the Arraganta.
The libel of F. Sorrell, the Portuguese Vice Consul, was sustained
against so many of the slaves as should appear to remain of those
taken by the Arraganta from Portuguese vessels.
And it was further ordered with assent of parties, (that is, of
these two parties the Spanish and Portuguese Vice Consuls, and
well they might assent!) that the chim of John Jackson to salvage,
should be sustained as regarded the Negroes claimed by and
adjudged to them—and as regarded those adjudged to the United
States, to an allowance of twenty five dollars for each according
the Act of Congress of 3d March, 1819.
This decree was pronounced on the 2lst of February 1821— and the
clerk of the court was directed on or before the 26th day of the
same month to report to the court the number of Spanish and
Portuguese Negroes in the hands of the marshal, distinguishing the
Negroes respectively belonging to each. He was also required to
designate the very small number adjudged to the United States,
that is, to the blessed enjoyment of themselves and their own
liberty; and associating with himself two resident merchants, was
at the same time to report the quantum or proportion of salvage to
be allowed to Captain Jackson for the Negroes thus reputably and
substantially sold by the judicial authority of the United States
to the Spanish and Portuguese Vice Consuls.
This unblushing bargain and sale of human captives, entitled at
least by the intention of the United States laws to their freedom'
was the first incident which brought to a pause the legal standard
of morality of a Connecticut District Judge of the United States
in the case of the Amistad
captives. An estimate in dollars and cents of the value at New
Haven, of from two to three hundred living men and women, for the
purpose of allowing salvage upon them as merchandise, was too much
for the nerves of a Yankee judge. The authority of the case of the
Antelope was in this particular no precedent for him. The very
proposal shocked his moral sense, and he instantly decided that
men and women were not articles for a price current in the markets
overt of Connecticut.
In the markets of Savannah, nothing was more simple. The clerk of
the District Court, with his two associated resident merchants, in
obedience to the order of the judge appraised the Negroes taken
from the Spanish and Portuguese vessels at three hundred dollars
per head, making the aggregate of sixtyone thousand five hundred
dollars [for 205 souls]; and they were of opinion that there
should be an allowance of one fourth of said sum to Captain
Jackson, his officers and crew, for salvage on the said Negroes.
Seventy five dollars per head! Fifteen thousand three hundred and
seventy five dollars for two hundred and five men and women! What
a revolution in the relative value of slaves and of freemen, since
the age of Homer! In the estimate of that Prince of Grecian Poets.
Jove fix'd it certain that whatever day
Makes man a slave, takes half his worth away—
and in the political statistics of the author of the Declaration
of Independence the degradation of the character of man, by the
infliction upon him of slavery is far greater than is asserted by
the blind old rhapsodist of Smyrna. But here we have an inverted
proportion of relative value, and Captain Jackson, by the decree
of a Judicial Court of the United States receives twentyfive
dollars a head for redeeming one parcel of Africans from slavery
to freedom, while at the same time he was to receive seventyfive
dollars a head for reducing by the same act two other parcels of
the same company from freedom to slavery!
Nor was the manner in which the clerk of the District Court
executed the order to report the relative numbers of the three
classes of the captured Africans, the least extraordinary part of
these proceedings.
He reported that two hundred and fiftyeight Negroes had been
delivered by Captain John Jackson, Commander of the Revenue Cutter
Dallas, on the 25th of July, 1820, to the marshal of Georgia, from
on board the General Ramirez [the Antelope.] That of that number
fortyfour had died in the space of seven months —one was missing
and one discharged by order of court, and that the marshal
returned two hundred and twelve Negroes which remained to be
apportioned.
What kind become of the missing one neither the clerk nor the
judge seems to have thought it worth his while to inquire—why
should they? it was but one man—and that man a Negro ! no further
trace of him appears upon the record.
Neither was it thought necessary to record the reason of the favor
bestowed by the court upon one other man in ordering his
discharge. The very nature of the order is its own justification.
But mark the mortality of the Negroes! out of 258, four deaths in
the space of seven months! and that, not while crammed between the
decks of a slaver in the middle passage, but on the soil of the
American Union, in the mild and healthy climate of Georgia—in the
custody of an officer commissioned by the President of the United
States, and under the protection of their judicial magistracy. In
the case of the Amistad,
the mortality ceased, as soon as the captives were admitted to the
privilege of breathing in the atmosphere of freedom.
But if the death of one man in six, in the space of seven months,
is deeply distressing to the sympathies of our nature, what shall
we say to a mortality of eighteen out of twenty five, which the
clerk reported as the proportion of deaths among the Negroes taken
from the American vessel, the Exchange, and who were by the final
decree of the judge to be liberated? The clerk in his report
denominates them American Negroes, and he reduces their number to
SEVEN. Seven African captives out of two hundred and fiftyeight,
was the number to whom the benignity of the laws of the American
Union enacted for the suppression of the African slave trade, and
expounded by the District Court of the United States in Georgia,
would have extended the inestimable blessings of freedom and
restoration to their country!
The clerk had been required to report the number of Spanish,
Portuguese, and American Negroes— distinguishing those
respectively belonging to each of the se classes. He could obtain
no evidence worth a straw upon which to found his report, the
Negroes were all huddled together in one crowd John Smith, the
pirate, was the only witness who could tell him which were the
Negroes taken out of the American vessel, and he told him that
sixteen out of the twentyfive had died, before the capture of the
Antelope by Capt. Jackson. The clerk reported accordingly, and
added two to the number of deaths, as the average loss since the
25th of July; that is, since they had been in the custody of the
marshal.
It further appears from his report that the whole number captured
by the Arraganta had been 331, of which 213 were Portuguese, 93
Spanish, and 25 American. That of the whole number 119 had died,
but in what proportions from the general classes he could not
ascertain. John Smith testified that sixteen of the 25 American
Negroes had died before the Antelope was taken by Captain Jackson,
and the clerk guessed that two more had died since, because that
was the average loss of 9 to 44 out of 258. But neither John Smith
nor any one else could point out the individual survivors of each
separate class, and the clerk therefore reported that there had
been captured by the Arraganta 213 Portuguese Negroes, of which
the average loss was 71;—93 Spanish Negroes of which the average
loss was 30, and 25 American Negroes, of whom the deaths attested
by John Smith were 16, and the subsequent average loss 2, leaving
as before stated 212 to be apportioned—that is, 142 to the
Portuguese Vice Consul, 63 to the Spanish Vice Consul, and 7 to
the United States, to be sent home to Africa; freemen by the
mandate of our laws.
That the whole 212 were entitled to the benefit of the same laws,
I cannot possibly doubt—but such was not the decision of the
District Judge. Exceptions were taken to the report of the clerk,
by the District Attorney of the United States, Richard W.
Habersham, and by Spanish Vice Consul Mulvey. The District
Attorney still claiming the freedom of all the Negroes, and
objecting to the allowance of 75 dollars a head to Captain Jackson
for salvage, though not to the allowance of 25 dollars a head for
their liberation. The Spanish Vice Consul insisting that the
number of slaves allowed to the Spanish claimants was too few and
not supported by any testimony in the case—and that the allowance
to Captain Jackson for salvage was too high, and ought to be
regulated by the act of Congress in relation to the compensation
given in case the said slaves had been decreed to be delivered to
the United States.
The Judge confirmed the report of the Clerk in all its parts; and
the District Attorney, in behalf of the United States, and the
Spanish Vice Consul, in behalf of the Spanish claimants, appealed
to the Circuit Court, then next to be held at Milledgeville on the
8th day of May, 1821.
In these decisions of the District Court, is it possible to avert
one's eyes from the glaring light of an overruling propensity to
narrow down, if not wholly to nullify, the laws of the United
States for the suppression of the African slave trade? To sustain
the claim of the Spanish Vice Consul, the irrelevant question to
whom the Antelope had originally belonged, was introduced; and
upon that was engrafted the deeply controverted question, whether
the African slave trade was or was not contrary to the law of
nations. To redeem from forfeiture the Antelope and the Negroes
captured in her by the Arraganta, the judge resorted to an
argument of counsel in the recently reported case of she Josefa
Segundas, (Wheaton, 338,) where it was said, that as piracy can
neither divest nor convey property, a pirate cannot, by a
subsequent violation of the laws of his own country, forfeit the
property of which he has acquired possession by preceding piracy.
This seems equivalent to a principle that a second act of piracy
protects the pirate from punishment for the first. However
conformable this maxim may be to the legal standard of morality,
the Supreme Court did not so decide in the case of the Josefa
Segunda. They decided, that the capture of a Spanish vessel and
Negroes by privateer, with a commission from Arismendi, under the
Republic of Venezuela, was not piracy; and that the Josefa
Segunda, a Spanish vessel, and her cargo of Negroes, captured by
authority of such a commission, were forfeited by a subsequent
attempt of the captors to smuggle them into the United States,
though taken from the Spanish owners only by the Venezuelan
commission from Arismendi. Now the Columbia had entered Baltimore,
and there enlisted her crew under those identical colors of
Venezuela, and, DO doubt, with a commission from the same
Arismendi. When metamorphosed into the Arraganta, she took the
Antelope and her Negroes, by a commission from Artigas, quite as
efficient to legitimate a prize as that of Arismendi; and John
Smith, when captured with the Antelope and her Negroes, by Captain
Jackson, produced this commission from Artigas as his warrant for
his possession of the vessel and the slaves. As between the
Arraganta and the Antelope, therefore, the capture of the latter
by a commission from Artigas was not piratical but belligerent, it
did divest the Spanish owners of the property and vest it in the
captors, at least sufficiently to make it forfeitable by their
subsequent attempt to smuggle it into the United States; and the
decision of the Supreme Court, in the case of the Josefa Segunda,
instead of sustaining that of the District Judge, in the case of
the Antelope, is an authority point blank against it.
For the allotment of 142 of the Negroes to the Portuguese Vice
Consul, there was not even the apology of a Portuguese claimant,
other than the Vice Consul himself to the property. There was not
a shadow of evidence that they were the property of Portuguese
subjects, and none were ever found to claim them. He took the
testimony of the capturing crew, that some of them were taken from
vessels under Portuguese colors; and as he had no evidence that
Portugal had then prohibited the slave trade, he took it for
granted that the Negroes were all slaves, and, as such, he decreed
that they should be delivered to the Vice Consul.
With regard to the question, whether Slavery was or was not
contrary to the laws of nations, his decision was such as might be
expected from a judge, himself a holder of slaves, in a land where
slavery has the sanction of law. The question, as I have
endeavored to show, did not belong to the case. "But it is
contended," (says the District judge) " on the authority of some
recent decisions in the British Admiralty Court, that Africans are
to be considered free, until it is shown that they are slaves, and
that the burden of proof is with those who set up a claim to them.
The doctrine may be correct in England, since there Negroes have
al. ways been held to be free, except in cases where they have
voluntarily entered into engagements binding them to service. And
yet, inconsistent and contradictory as it may be, slavery has been
recognized in all the British American colonies.
But it does not appear to me that I can admit the
proposition in the form and manner in which it is here presented.
The period is not very remote when all the Governments of Europe,
and the several States of the United States when they were British
colonies, and many of them after they became independent,
recognized slavery. But a few years have elapsed since the
Government of the United States permitted her citizens to engage
in the African trade. Under such a state of things, it appears to
me that this Court is bound to consider the unfortunate Africans,
when found in the possession of the subjects or citizens of any
Government which has heretofore permitted this traffic as slaves,
until the contrary be shown. That this trade, however inhuman it
may be, and however obnoxious it is to every benevolent feeling,
must now be considered legal, notwithstanding its injustice, until
it is shown to have been prohibited by that Government whose
subjects claim the right of engaging in it.
"When it shall have been ascertained
that the different Governments of the civilized world have
consented to abolish the trade or after it shall have been
ascertained that any particular State or Government has determined
to abolish it, this Court would consider the claims set up in
favor of Africans found in the situation of those before the
Court, in a different point of view. In the one case they would, I
think, uniformly be considered free, until the contrary was shown;
in the other case, they would be so considered when they were
found in the possession of the subjects or citizens of that
Government which had determined to abolish the trade.
"If it could be made to appear to this Court that, at the time
these Africans were taken from the possession of the Spanish and
Portuguese claimants Spain and Portugal had agreed to prohibit
their subjects from engaging in the trade, this Court, I think,
would be bound to restore to these people their liberty.
"It is true this Court will not enforce the municipal laws of
another country, by punishing the subjects of that country for the
infraction of them; but this Court could feel bound to respect the
rights of Africans no less than it could respect the rights of any
other class of persons. Spain, however' had not, at the time I am
speaking of, abolished the trade to Africa, although she had
placed it under certain restrictions. Can it be permitted to this
Court to examine the commercial regulations or the conventional
engagement of Spain?"
It is unnecessary further to repeat verbatim et literatim this
argument of the District judge to sustain his decree. Every word
and letter of it teems with anxiety to sustain the institution of
Slavery, and to prostrate instead of enforcing the laws of the
United States for the suppression of the slave trade. What he
calls certain restrictions placed on the trade by Spain, was the
total prohibition of it north of the equator, even then stipulated
by Spain in a treaty with Great Britain, and enacted accordingly
by her law. But what of that? The judge admits that the trade is
inhuman, that it is obnoxious to every benevolent feeling, but he
is bound to consider it legal, notwithstanding its injustice,
because many years before it had been practiced by Great Britain'
and not many years before by the United States themselves." Is
this reasoning for a Court of JUSTICE? When all the civilized
nations of the earth shall have abolished the African slave trade,
the judge thinks that captured Africans would be considered free,
unless proved to be slaves: and if Spain and Portugal should
abolish the slave trade, he thinks the burden of proof that
Negroes captured in their vessels were slaves, would rest upon
their captors. In that case, the Court would respect the rights of
Africans as much as those of any other class of persons; but,
until then, how could the Court be permitted to examine into
treaty stipulations of Spain, or into any restriction imposed by
Spain upon the traffic of her subjects in slaves ?
Such was the reasoning of a slaveholding judge upon slavery and
the slave trade, and by such reasoning did he' out of two hundred
and twelve Africans, forfeit to the United States, to receive from
them the blessing of freedom, and restoration to their native
country reduce the number who should enjoy that privilege to seven
individuals, consigning all the rest to perpetual, hopeless
Spanish and Portuguese slavery!—Seven freemen to two hundred and
five slaves!
The appeal from these decrees to the Circuit Court of the United
States came up before Judge William Johnson, in May, 1821. His
opinions differed toto coelo from those of the District judge. He
increased the number of the Africans to be liberated, as survivors
of the twentyfive taken from the American vessels, from seven to
sixteen: he rejected the incredible testimony of the pirate, John
Smith, that while the mortality of the whole cargo of Negroes had
averaged not more than one in three, the number of deaths among
those taken from the American vessel had amounted to twothirds of
the whole. He reversed the decree of the District judge, which had
allotted one hundred and fortytwo Negroes to the Portuguese Vice
Consul; and reserved his claim for further proof, which never was
produced. He reduced the allowance of salvage to Captain Jackson,
and the crew of the revenue cutter, to fifty dollars a head for
the Negroes to be delivered to the Spanish Vice Consul, and
expressed a strong doubt whether it was a case for salvage at all.
He intimated, very significantly, an opinion, that if a claim had
been interposed by an agent of Venezuela, or of the Oriental
Republic, the capture of the Antelope, by Captain Jackson, must
have been pronounced illegal—a mere marine trespass—punishable in
damages rather than rewardable for salvage; and yet he allowed him
a salvage of fifty dollars a head for the Negroes surrendered to
the Spanish Vice Consul. He concurred, however in the most
exceptionable of all the opinions of the District judge; namely,
that because John Smith had no forfeitable interest in the
Antelope and in the Negroes, originally belonging to Spanish
owners, but then in his possession, and which he was when
captured, in the act of smuggling into the United States;
therefore they were not forfeited at all, and must be delivered up
to the Spanish Vice Consul. The judge of the Circuit Court,
sitting alone, after stating the circumstances of the capture by
Captain Jackson, and the claims of the respective parties,
promptly and without hesitation pronounces, that John Smith was
taken in the act of violating the laws of the United States for
the suppression of the slave trade; and that, " if the case rested
here there would be no difficulty in adjudging the vessel
forfeited, for taking these Africans on board at sea, with intent
to dispose of them as slaves. But this, although perhaps literally
within the provisions of the statute, is obviously not within the
intent and meaning." Why perhaps, literally within the provisions
of the statute? No reader of the English language can read the
provisions of the statute and entertain a doubt that they extend
literally to the case—why not within its intent and meaning? Never
was an obiter dictum of a judge more peremptory or more
gratuitous! There is not a word, not a letter in the statute to
authorize the intention of shielding from forfeiture a slave
trading smuggler, because the captain was not her owner. The
forfeiture attaches to the action, the violation of the laws
against the slave trade, and to the instrument used for that
violation, without inquiring to whom that instrument belongs. The
mischief to be remedied by the law, was the introduction of
African slaves into the United States.—The vessel is the
instrument with which the violation of the law was effected, and
by which the forfeiture was incurred. Neither justice nor policy
could require an exemption from the forfeiture, because the
captain in possession of the vessel and employing her in violation
of the law, was not her lawful owner. The judge says, there are
reiterated decisions of the American courts, that a capture made
under an illegal American outfit is not belligerent, but void, and
producing no change of right; and from this it followers, that
Smith had no interest on which the forfeiture inflicted by law for
this offense could attach. The judge names no one of these
reiterated decisions, and we have seen that the only one
specifically cited by the District judge, in support of the same
principle, was a clear authority against it. There were no doubt
decisions that captures of friendly foreign vessels, by American
privateers illegally fitted out in our ports) and bearing South
American commissions, did not so divest the property, but that it
might be restored by our courts, in controversy between the
captors and the original owners—but that the laws of the United
States, prescribing penalties of forfeiture for crimes, should be
violated with impunity, because the slave smuggler had stolen the
instrument with which he committed the crime! No! l trust the
Antelope is, and will for ever remain, the solitary case in which
such a principle can claim the sanction of the courts of the
United States!
The wild and glaring inconsistency not only between the opinions
and decrees of the District and Circuit Courts of the United
States, in the case of the Antelope, but between the opinions and
decrees of each of those Courts and itself discloses in crystal
transparency an internal conflict of mind between the duty of
suppressing the African slave trade, and the desire to maintain
and fortify the institution of slavery, little auspicious to the
composure of justice or to the impartial exercise of the judicial
faculty. Both the Judges profess a sentimental abhorrence of the
trade. The Circuit Judge discusses at great length the question
whether the slave trade is contrary to the Law of Nations. He
admits that the British Court of Admiralty have of latter years
asserted a doctrine of this nature; but after commenting
sarcastically upon the motive of the British Judges and
Government, and descanting upon mental dependence, and
interference with the family concerns of others, in which no
nation has a right to volunteer, he quotes a passage from the
decision of the British Court in the case of the Amedee [Actor,
240,] and says, "I must until better advised assume an opposite
language."
"I feel," says he, "no inclination to justify or even palliate the
trade. I thank God I have lived to see its deathblow. But it was
from religion or policy, not from national humanity, that the blow
was received. On the contrary, British policy struggled against
the effort to abolish it, and all the efforts of the Quakers, the
Methodists and Mr. Wilberforce proved abortive until the horrors
acted in St. Domingo opened the eyes of Government to consequences
that it became political to guard against. From that time,
philanthropy like the pent up vapor, began freely to diffuse
itself, and extended its spread even to the British Court of
Admiralty."
"That slavery, (says again the Judge of the Circuit Court,) is a
national evil no one will deny except him [he] who would maintain
that national wealth is the supreme national good. But what" ever
it be, it was entailed upon us by our ancestors, and actually
provided for in the constitution first received from the Lords
Proprietors under which the southern colonies were planted. During
the Royal government it was fostered as the means of improving the
colonies, and affording a lucrative trade to the mother country,
and however revolting to humanity, may be the reflection, the laws
of any country on the subject of the slave trade are nothing more
in the eyes of any other nation than a class of the trade laws of
the nation that enacts them.',
Both the Judges acknowledge the inherent, inextinguishable
wickedness of the trade, and both have an invincible repugnance to
consider it contrary to the laws of nations. The Judge of the
District Court admits that the doctrine that Africans taken at sea
must be presumed to be free, until proved to be slaves, may be
correct in England, but cannot entirely recognize it in the State
of Georgia. The Judge of the Circuit Court, repudiates it
altogether—says he must until better advised hold opposite
language— assails with great bitterness the decision of Sir
William Grant in the case of the Amedee: thanks God that he has
lived to see the death blow of the African slave trade; but allows
no credit to Great Britain on the score of humanity for striking
it. No! it was religion or policy. The horrors of the scenes in
St. Domingo had alarmed the British Government for the safety of
their West Indian colonies, and so the pent up vapor of
philanthropy was let loose and extended even to the British Courts
of Vice Admiralty. As for slavery, every one knows it an evil, but
it was entailed upon us by our ancestors; it was provided for by
the constitution granted by the Lords Proprietors; it was
encouraged from motives of policy by the Royal Government, and
what right has any one to question our practice of it now? It was
once lawful— who shall say it shall not be lawful forever ?
Upon the tone of this judicial argumentation I shall not indulge
myself in commenting; but in comparing the spirit of the reasoning
of these two judges with that of Sir William Grant in the decision
which they reject and oppose, how stands the account of moral
principle ? The reasons of the British Judge glow with the flame
of human liberty, those of the American Judges are wedged in
thrilling regions of thick ribbed ice. Vituperation of the slave
trade in words, with a broad shield of protection carefully
extended over it in deeds. Slavery acknowledged an evil, and the
inveteracy of its abuse urged as an unanswerable argument for its
perpetuity: the best of actions imputed to the worst of motives,
and a bluster of mental energy to shelter a national crime behind
a barrier of national independence; these are the characteristics
exhibited by American in collision with British Admiralty Courts.
Or again, examine the respective opinions and decrees in their
beating upon the trade itself: those of the British Court went
directly to its suppress sign; those of the American Courts, to
its encouragement, security and promotion. The British Court has
at least the consistency of harmonizing practice and profession.
The American Courts profess humanity and practice oppression.
The decrees of the American Circuit Court are if possible more
extraordinary than its opinions. After deciding that the Negroes
taken by the Arraganta in the Antelope, and from the Portuguese
vessels shall be delivered to the Spanish and Portuguese Vice
Consuls, because he must maintain that it is A question altogether
inter altos, whether the Spanish and Portuguse nations had
authorized the traffic in which their vessels were engaged, the
Judge adds: " Not so as to the American vessel. I have a law to
direct me as to that, and the slaves taken out of her must be
liberated." The laws had literally directed that all the Negroes
whom John Smith had attempted to smuggle into the United States
for sale, should be liberated, but the Judge had pronounced that
this was not its intent and meaning. But now another difficulty
occurs. No competent witness can tell which of the surviving
Negroes were taken from the American vessels, which from the
Portuguese vessels, and which from the Antelope. The individuals
belonging to each of the three vessels cannot be identified. How
shall he distribute his doom of freedom and of slavery among the
prize goods and the pirated merchandise of John Smith? With a full
consciousness of the gross and glaring injustice of the decree he
says, THE LOT MOST DECIDE ! Where did he get his law for that? He
says he has a law to direct him, and he flies in the face of that
law to enslave hundreds and emancipate sixteen human beings on the
cast of a die. Let me do no wrong to his words—hear them.
"I would that it were in my power to
do perfect justice in their behalf. BUT THIS IS HOW IMPOSSIBLE. I
can decree freedom to a certain number, but I may decree that to
A, which is the legal right of B. It is impossible to identify the
individuals who were taken from the American vessel, and yet it is
not less certain that the benefit of this decree is their right
end theirs alone. Poor would be the consolation to them to know
that because we could not identify them we had given away their
freedom to others.— Yet shall we refuse to act because not gifted
with the power of divination? We can only do the best in our
power. The lot must decide their fate, and the Almighty will
direct the hand that acts in the selection. But I cannot consent
to reduce this number from twentyfive to nine, [to seven,] for
this depends upon testimony that was interested to deceive, since
in those twentyfire, Smith could have no hope to sustain his
claims though he might succeed as to the residue. The reduction of
the number must therefore be averaged upon a scale with the rest,
and as they consisted of twentythree men and two boys, the lot
must select them accordingly from the men and boys.
"Some doubts have been stated as to the national character of the
vessel and as to the Spanish and Portuguese interest in the
slaves. On the vessel I entertain no doubt. She was captured as
Spanish, and the evidence is sufficient to prove the Spanish
interest in her—and the slaves taken on board of her, must
necessarily follow her fate. But I am induced to think that the
evidence preponderates to prove that there were but ninetythree,
and, that number must also be reduced by the general scale of
loss. Concerning the residue, the evidence appears so conclusive,
that reluctant as I feel to keep the case open I cannot adjudge
them to the Portuguese Consul, without further proof."
In examining the claim of Capt. Jackson to salvage, the judge
becomes exceedingly doubtful whether it is a case for salvage at
all, and enters a caveat against his own decree for allowing it.
He thinks if a Venezuelan agent had interposed a claim to the
property as prize of war, he should have been still more puzzled
how to shape his decree than he was. He does not appear to be at
all aware that if a Venezuelan agent could have claimed the
property as prize of war there could have been no Spanish claimant
to whom it could hare been restored. The decree of restoration to
Spanish owners was therefore ipso facto equivalent to a decree for
salvage, the quantum of which alone remained for consideration.
His caveat against his allowance for salvage, was therefore a
caveat against his whole decree, and thus far was an approach to
the definition of justice—Jus suum cuique.
The decrees of the Circuit Court (for there were two) like the
state of mind disclosed by these opinions of the judge, were a
chaos of confusion. By the first, delivered on the 11th of May,
1803, the Decree of the District Court, so far as related to the
vessel, the Antelope, was affirmed, and so far as related to the
slaves imported in her was reversed and annulled. The District
Court had decreed the restoration of the Antelope to the Spanish
claimants, on the ground that she had not been forfeited to the
United States, for the violation of the laws for the suppression
of the slave trade. She had not been forfeited, though taken by
Captain Jackson in the act of smuggling into the United States for
sale near three hundred Africans, and though the law literally
declares all Africans thus imported free, and the vessel in which
they are imported forfeited to the United States. From this
forfeiture the Decree of the District Court, exempted the
Antelope, because before the commission of this smuggling piracy
she had been taken by another act of piracy, from certain virtuous
Spanish slave traders, whose property in her, and consequently in
the slaves with which she was laden, was too sacred to be divested
either by piratical capture or by the laws of the United States
against the importation of slaves, or against the African slave
trade. With this part of the Decree of the District Court, the
judge of the Circuit Court concurs. The laws of the United States
for the suppression of the execrable slave trade, and against the
importation of African slaves are baffled, defeated, prostrated,
nullified— three hundred wretched victims of that trade, are
deprived of the benefit of that just and generous provision that
the very act of importing them shall operate in their favor as an
act of emancipation. They are re consigned to hopeless and
perpetual slavery, from mere reverence for the property of Spanish
slave traders! Well might such a decision divide the opinions of
the judges of the Supreme tribunal when it came up to them for
adjudication. Well might Chief Justice Marshall declare that upon
this point no principle was settled, and well may every friend of
human liberty, and every sincere wishes for the suppression of
that detested traffic indignantly deny that the case of the
Antelope can ever be cited as authority for any such principle of
law.
But as the Circuit Court, reversed and annulled every part of the
decree of the District Court for the disposal and distribution of
the slaves, so the final decree of the Supreme Court passed the same
sweeping sentence of reversal, upon all the dispositions of the
Circuit Court, not excepting that reliance upon an Almighty hand to
direct that designation by lot, which was to give to one man what
was the right of another, and to emancipate a slave as an equivalent
for enslaving a freeman.
The judge of the Circuit Court at first decreed the manner, in which
the sixteen freemen should be drawn by lot from the whole surviving
cargo of the Antelope, as taken by Captain Jackson. He allowed a
certain average portion of the survivors of 93 to the whole number j
to be delivered to the Spanish Vice Consul, together with the
proceeds of the vessels, and with suitable deductions for the
salvage, forthwith—and he reserved for further consideration, and
further evidence, till the next term of the court, the final
distribution of the residue of the slaves between the Spanish and
Portuguese Vice Consuls.
On the 16th of July, 1821, the designation was accordingly made by
lot of the sixteen persons drawn from 204, and delivered to the
marshal of the United States to abide the order of the court—that
is, for emancipation. It does not appear that the Spanish Vice
Consul received those which had been provisionally assigned to him.
On the 27th day of December, 1821, the judge of the Circuit Court
held, together with Jeremiah Cuyler, the newly appointed judge of
the District Court in the p]ace of William Davis deceased, a special
court, at which the case was argued, and further evidence filed—and
on the next day, the court " Ordered and decreed, that the residue
of the Negroes imported in the General Ramirez [Antelope] be divided
between the Spanish and Portuguese claimants in the ratio of one
hundred and sixtysix on be half of the Spanish claimants, and one
hundred and thirty on behalf of the Portuguese claimants, and that
they be delivered up to the agents of the individuals as soon as
their respective powers of attorney shall be duly authenticated and
filed with the clerk of this court; and they shall respectively
comply with the Decorated Order of this court, in paying the
expenses incurred on said Negroes in the ratio above stated, and in
giving bond and security as therein directed for transporting them
beyond the limits of the United States to some permitted port,
allowing however six months from the date of the bond instead of
three months as in that decretal order aforesaid' and that the
proceed sales of the vessel, after deducting the costs of court,
exclusive of marshal's bills for maintenance, be paid over to the
Spanish claimants."
On the 2d of January, 1822, the District Attorney of the United
States, appealed in their behalf to the Supreme Court of the United
States from so much of the said decree, of the said Circuit Court as
decreed the said African Negroes to the Portuguese Vice Consul.
And thus, in February, 1822, the case of the Antelope, and her
cargo, came up for adjudication of the Supreme Court of the United
States, the result of which is reported in the 10th, 11th, and 12th
volumes of Wheaton's Reports.
Three long years passed away before the first judgment of the court
in the case was pronounced. Nearly two years before had elapsed from
the capture of the Antelope by Captain Jackson. For little short of
the space of five years, nearly three hundred captured Africans had
been kept as prisoners of the United States, and to abide the
decision of their tribunals for the enjoyment of their inalienable
right to liberty. What had they been doing, during this long
captivity ? They had been maintained at the cost of the United
States, we shall see hereafter to what tune. While the slow, solemn
and majestic march of the law was progressing in the search " for
the legal standard of morality" to fix the destiny of these human
victims, time and chance had disposed of them more mercifully than
the decrees of the District or of the Circuit Court. The marshal had
bound most of them out to labor in the sweat of their brows, at the
erection of fortifications, for the defense of the LIBERTIES of
this, our beloved country. The judges who passed upon the fate of
these their fellow men—the wives—the children—the property the
neighbors—the country, of those judges were armed in panoply against
foreign aggression by the daily labor of these stolen Africans,
whose lives, and liberty American judges were committing by the
legal standard of morality to the cast of a die. During those five
years it may be well conjectured that the condition of those
captives of the Antelope thus employed was less rigorous and
afflicted than it was made by the lottery judgment of the court.
The judgment of the Supreme Court in 1825, reversed this lottery
judgment of the Circuit Court. It reversed the whole allotment of
one hundred and thirty to the Portuguese Vice Consul, and awarded to
them the blessing of liberty intended for them by the law, and yet
so harshly denied them by the decrees of the courts below. It
reduced the number to be delivered to the Spanish claimants from a
ratio of 166 to 93 to the whole number, and vigorously exacted proof
to the satisfaction of the Circuit Court of the identity of every
individual to be delivered up, as having been of the number taken by
the Arraganta in the Antelope. The allowances of salvage and of
gratuity to Captain Jackson and the crew of the Revenue Cutter were
confirmed. One step further and the case of the Antelope would have
conferred unfading glory on the Supreme Court. One step more and the
heartless sophistry would have beep silenced, and the cold blooded
apathy to human suffering would have been stung into sensibility,
which delivered up to Spanish slave traders, a vessel, forfeited by
the just severity, and thirtynine Africans emancipated by the
benignly, of the laws of this Union for the suppression of the
African slave trade.
That step was not taken; there lacked one voice in a divided court
to reverse the whole of that decree of the Circuit Court of which so
many parts were annulled. One obnoxious principle was left to have
its sway in that particular case, because there wanted a casting
vote to reverse it—but Chief Justice Marshall himself, in announcing
the affimation of the sentence on this point of the Circuit Court,
guarded against any and every future attempt to allege it as an
authority by explicitly declaring that in this judgment of the court
NO PRINCIPLE WAS SETTLED.
The opinion delivered by him on this first decision of the case in
the Supreme Court, must be considered as that of the Chief Justice
himself. It is in a tone entirely different from that in which the
judges of the lower courts had indulged themselves. It contains no
angry invective, no sneering sarcasm, no direct defiance, on the
motives of the British government, and the solicitude of the British
tribunals, for the suppression of the slave trade. It states with a
sincere and painful effort of impartiality the reasons for and
against the principle that the trade is contrary to the laws of
nations. It admits and emphatically declares it contrary to the laws
of nature. It cites and analyzes the general decisions upon the same
point in the British Courts of Admiralty, and examines them with
freedom, but without asperity. The Chief Justice says that as no
principle was settled by the affirmance of the decree of the Circuit
Court, the judges had concluded not to assign their respective
reasons for their conflicting opinions; but was to him was assigned
the duty of pronouncing the decree of the court, his argumemt was
necessarily on the side of that division which sustained the decree
of the Circuit Court, and consequently there is no coumteracting
opinion upon the records to balance it. But it almost balances
itself. The argument with much hesitation concludes that the African
slave trade is not contrary to the Law of Nations —but it begins
with admitting, also with hesitation, that it is contrary to the law
of nature. He says—" That it is contrary to the law of nature will
scarcely be denied. That every man has a natural right to the fruits
of his own labor, is generally admitted; and that no other person
can rightfully deprive him of those fruits, and appropriate them
against his will seems to be the necessary result of this admission.
"Seems, Madam—Nay it is—I know not
seems."
Surely never was this exclamation more suitable than on this
occasion; but the cautious and wary manner of stating the moral
principle, proclaimed in the Declaration of Independence, as
self-evident truth, is because the argument is obliged to
encounter it with matter of fact. To the moral principle the Chief
Justice opposes general usage—fact against right. " From the
earliest times war has existed, and war confers rights in which
all have acquiesced. Among the most enlightened nations of
antiquity, one of these was, that the victor might enslave the
vanquished——
"Slavery, then, has its origin in force; but as the world has
agreed that it is a legitimate result of force, the state of
things which is thus produced by general consent cannot be
pronounced unlawful.
"Throughout Christendom, this harsh rule has been exploded, and
war is no longer considered as giving a right to enslave cap.
tires. But this triumph of humanity has not been universal The
parties to the modern law of nations do not propagate their
principles by force; and Africa has not yet adopted them.
Throughout the whole extent of that immense continent, so far as
we know its history, it is still the law of nations that prisoners
are slaves. Can those who hare themselves renounced this law, be
permitted to participate in its effects, by purchasing the beings
who are its victims ?
"Whatever might be the answer of a moralist to this question, a
jurist must search for its legal solution in those principles of
action which are sanctioned by the usages, the national acts, and
the general assent, of that portion of the world of which he con.
eiders himself a part, and to whose law the appeal is made. If we
resort to this standard as the test of international law, the
question as has already been observed, is decided in favor of the
legality of the trade. Both Europe and America embarked in it; and
for nearly two centuries, it was carried on without opposition
and without censure."
With all possible reverence for the memory of Chief Justice
Marshall, and with all due respect for his argument in this case, I
must here be permitted to say, that here begins its fallacy. He
admits that throughout all Christendom, the victors in war have no
right to enslave the vanquished. As between Christian nations
therefore, slavery as a legitimate consequence of war is totally
abolished. So totally abolished that slaves captured in war, cannot
be held by the captors, as slaves; but must be emancipated, or
exchanged as prisoners of war.
But Africa, says the Chief Justice, still enslaves her captives in
war, and for nearly two centuries, Europe and America purchased
African slaves without " opposition and without censure." This may
prove that the African slavetrade was heretofore, not contrary to
the international law of Europe and of Christendom. But how was it,
when the Antelope was in judgment before Christian Admiralty Courts
in 1820 and '25? How is it now?
For nearly forty years it has been prohibited by the laws of the
United States, as a crime of enormous magnitude—and when the
Antelope was tried by their judicial Courts, it was proclaimed
piracy, punishable with death—
It was piracy by the laws of Great Britain.
By the 10th Article of the Treaty of Ghent, concluded on the 84th of
December, 1814, between Great Britain and the United States, the
traffic in slaves had been declared irreconcilable with the
principles of humanity and justice, and both parties did there by
stipulate and contract to use their best endeavors to promote Its
entire abolition.
On the 8th of February, 1815, the Ambassadors at the Congress of
Vienna, from Austria, France, Great Britain, Portugal, Prussia,
Russia, and Sweden, had issued a Declaration, " in the face of
Europe, that considering the universal abolition of the slavetrade
as n measure worthy of their attention, conformable to the spirit of
the times, and to the generous principles of their august
Sovereigns, they are animated with the sincere desire of concurring
in the most prompt and effectual execution of this measure, by all
the means at their disposal, and of acting in the employment of
those means with all the zeal and perseverance which is due to so
noble a cause." And again,
"In communicating this Declaration to
the knowledge of Europe, and of all civilized countries, the said
plenipotentiaries hope to prevail on every other Government, and
particularly on those which in abolishing the slavetrade have
already manifested the same sentiments, to give them their support
in a cause, the final triumph of which will be one of the noblest
monuments of the age which embraced it, and which shall have
brought it to a glorious termination."
On the 20th of May, 1814, Louis the 18th, on his first restoration,
had stipulated by treaty with Great Britain, to unite all his
efforts with hers, at this then approaching Congress of Vienna, to
induce all the Powers of Christendom to decree the abolition of the
slave trade, so that the said trade should cease, universally, as it
should cease definitely, under any circumstances, on the part of
France, within five years.
Within one year from that time, the Emperor Napoleon, on the 29th of
March, 1815, upon his return from Elba, within the hundred days of
his authority, decreed the immediate and total abolition of the
slavetrade on the part of France—which decree Louis the 18th, upon
his second restoration, repeated and confirmed—and on the 20th of
November, 1815, a Treaty, of which the following was one of the
Articles, was concluded between Great Britain and France.
"The high contracting powers,
sincerely desiring to give effect to the measures on which they
deliberated at the Congress of Vienna, relative to the complete
and universal abolition of the slavetrade, and having each in
their respective dominions, prohibited without restriction, their
colonies and subjects from taking any part whatever in this
traffic, engage to renew conjointly their efforts, with the view
of securing signal success to those principles, which they
proclaimed in the Declaration of the 8th of February, 1815, and of
concerning without loss of time, through their ministers at the
Courts of London and of Paris, the most effectual measures for the
active and definitive abolition of a commerce so odious and so
strongly condemned by the laws of religion and of nature."
Spain had not been a party to the Declaration of the Allied Powers,
at the Congress of Vienna, of 8th of February, 1815—but in a treaty
with Great Britain, concluded on the 20th of August, 1814, his
Catholic Majesty, concurring in the fullest manner in the sentiments
of his Britannic Majesty with respect to the injustice and
inhumanity of the traffic in slaves, stipulated that he would take
into consideration with the deliberation which the state of his
possessions in America demanded, the means of acting in conformity
with those sentiments.
And on the 23d of September, 1817, by a treaty concluded between the
same two powers, his Catholic Majesty engaged, that the slavetrade
should be abolished throughout the entire dominions of Spain, on the
30th day of May, 1820; and that from and after that period, it shall
not be lawful for any of the subjects of the crown of Spain, to
purchase slaves, or to carry on the slave trade, on any parts of the
coast of Africa, upon any pretext, or in any manner whatever;
provided, however, that a term of five months from the said date of
the 30th of May, 1820, should be allowed for completing the voyages
of vessels cleared out lawfully, previously to the said 30th of May.
A decree of the King of Spain, of December, 1817, conformable to the
above treatystipulation, prohibited all Spanish subjects from
engaging in the African slave trade, from and after the 30th of May,
1820.
The case of the Antelope first came before the District Court of the
United States for adjudication, on the 27th of July, 1820. At that
time the African slave trade was forbidden to all Spanish subjects
throughout the world, by a decree issued nearly three years before.
But the Antelope had been fitted out at the Havana, upon her slave
trading expedition, and had even been captured by the Arraganta,
before the 20th of May, 1820, and consequently before the legal
prohibition had taken effect. The capture of her by the Arraganta
had been made, not for breach of laws against the slave trade, but
as prize of war under a commission from the Oriental Republic. It
was her captor who had incurred her forfeiture, and the liberation
of the Africans taken in her by the violation of the laws of the
United States against the slavetrade—not by purchasing or shipping
the Negroes in Africa, but for importing them into the United States
contrary to law.— To the question of that forfeiture, that of the
original property of the vessel and cargo was altogether foreign.
That was res inter alios, with which the Courts of the United States
had nothing to do. The smuggler was a citizen of the United States.
He had proprietary possession of the vessel and of the Negroes,
which he was smuggling in to be sold as slaves. It was the identical
offense against which the laws of Congress had provided, and the
Negroes had by those laws, and by the violation of them committed by
John Smith, acquired a right to freedom, infinitely more sacred, one
would have thought, in an American Court of Justice, than the
property in and to them, of the Spanish slavetraders who had
kidnapped or bought them in Africa, and had not yet consummated
their property by bringing them within the exclusive jurisdiction of
Spain.
All the Courts of the United States did however think proper to go
back to the proprietary right of the Spanish slavetrader; and two
of them to sanctify that at the expense of the freedom of the
captives, and of the vital spirit of the laws of the Union for the
suppression of the African slave trade. This sacrifice was made, by
the District and Circuit Courts of the United States, in Georgia. It
was never sanctioned by the Supreme Court of the Union. On this
single point, the judgment of the Circuit Court, was saved from
reversal, by a divided Court; but on all the collateral points the
decisions of both the lower Courts were reversed, and on the single
point of the Circuit Court, affirmed: the Chief Justice in affirming
it gave explicit and emphatic warning, that no principle was
settled.
In all the three courts, the restoration of the Antelope, and of the
Africans captured by the Arraganta on board of her to the Spanish
claimants, was explicitly decreed on the fact that at the time of
her expedition from the Havana, and of her capture by the Arraganta
the prohibition of the slave trade by the King of Spain had not yet
taken effect. All the courts agreed that if the case had occurred
after the abolition of the trade by Spain, the judgment would have
been cliff renu That is, it must and would have been the
emancipation and the restoration to their native country as freemen,
of every individual African captured by Captain Jackson in the
Antelope.
With what color of reason then was the case of the Antelope made the
corner stone of the Attorney General's report to the President of
the United States, that the captives of the Amistad should be, by mere
Executive warrant, delivered up in a mass, untold and unidentified,
to the Spanish minister. Whatever there was or could be of authority
in the case of the Antelope led directly to the opposite conclusion.
The Supreme Court had toppled down headlong the decree of the
Circuit Court for the distribution of the victims between the
Spanish and Portuguese Vice Consuls by lot. They had scattered to
the winds this gambling of human bones, this cross and pile
distribution of justice between liberty and bondage. They had
rescued from the grasp of the overseer all the prisoners taken from
the vessels bearing Portuguese colors, they had exacted proof of the
number and identification of the individuals, to be given up to the
Vice Consul of Spain. They had allowed salvage for them to captain
Jackson, to be deducted from their estimated value; and from two
hundred and ninety six adjudicated by the courts below, to perpetual
slavery, they had reduced the number to an estimate which could not
exceed thirty nine. The only principle to which half the court
adhered, and thereby left the decree of the Circuit Court unreversed
was, that the Spanish prohibition of the slave trade had not
quickened into life quite in time to save these thirty-nine
unfortunates from the clutches of their oppressors.
Apply these principles to the case of the Amistad captives. They had been imported into the
Havana in open and undisguised defiance of the Spanish prohibition
of the slave trade enacted nearly twenty years before; but connived
at by the Spanish authorities in Cuba for gold—for a doubloon a
head. They had been shipped coast wise, in continuance and for
consummation of the slavetrading voyage from Africa. They had been
clandestinely transferred to Ruiz and Montes, who were furnished
with printed pretended passports, false and fraudulent upon their
face, and these were the only title to property they could show. The
captives of the Amistad
were, when taken by Lieut. Gedney, not even in the condition of
slaves; they were freemen, in possession not only of themselves, but
of the vessel with which they were navigating the common property
and jurisdiction of all nations, the Ocean: in possession of the
cargo of the vessel, and of the Spaniards Ruiz and Montes
themselves. Lieut. Gedney seized them as charged with the crimes of
piracy and murder. The captives of the Antelope were taken by
Captain Jackson in the condition of slaves. The courts of the United
States were not called on to change their condition. The courts of
the United must have enslaved the captives of the Amistad before they could
restore them to their pretended masters.
The decision of the courts of the United States against the captives
of the Antelope were all apologetic. They leaned almost entirely
upon a decision of Sir William Scott in the case of the Louis,
apparently if not really conflicting with that of Sir William Grant
in the case of the Amedee. It is apparent that the Admiralty Courts
of Great Britain have been divided on the question not less than
those of the United States. Sir William Scott, who, during the war
of the French Revolution, had been the main pillar of belligerent
rights and arbitrary searches and visitations of neutral vessels,
after the peace and the agitation of the slavery question among all
the nations of Europe, took a very different lurch, and became the
most fervent champion of the slave trade and of the unqualified
exemption of all merchant vessels from visitation or search by the
armed ships of every nation other than their own. In the case of the
slave Grace, he decided that a West Indian female slave following
her mistress to England, and emancipated by mere contact with
English soil, became reenslaved by returning to the West Indian
Islands,—a decision the reverse of which has been repeatedly decided
in one of the principal slave states of this Union. In the case of
the Louis he laid it down in most unqualified terms, which Chief
Justice Marshall in the case of the Antelope repeats with seeming
approbation, that the right of search is confined to a state of war.
That it is a right strictly belligerent in its character, which can
never be exercised by a nation at peace, except against professed
pirates, who are the enemies of the human race: a position which, if
true, would at once decide that both the capture of the Antelope by
Captain Jackson, and of the Amistad
by Lieut. Gedney, were unlawful and unjustifiable. I must pause
before I assent to the doctrine to that extent.
In the same case of the Louis, Sir William Scott travels out of his
record, to start a hypothetical objection to the universality of
this exemption of foreign vessels from visitation and search. "It is
pressed as a difficulty," says the Judge, "what is to be done, if a
French ship laden with slaves is brought in? I answer without
hesitation, restore the possession which has been unlawfully
divested: rescind the illegal act done by your own subject, and
leave the foreigner to the justice of his own country."
Chief Justice Marshall, in the case of the Antelope, cites also this
passage of the decision of Sir William Scott; but besides that it is
a mere obiter dictum upon an imaginary case not before the court, it
is assuredly not law within these United States. By the act of
Congress of 2d of March, 1799, to regulate the collection of duties,
&c., [section 99. U. S. Laws 3, 226,] " the officers of the
revenue cutters are authorized, required and directed to go on board
all ships or vessels which shall arrive within the United States, or
within four leagues of the coast thereof' if bound for the United
States, and to search and examine the same, and every part thereof,"
for the purposes of revenue.
By the act of 2d of March, 1807, to prohibit the importation of
slaves into the United States, [section 7, U. S. Laws 2, 96,] it is
provided that " if any ship or vessel shall be found, from and after
the first day of January, 1808, in any river, port, bay, or harbor,
or on the high seas, within the jurisdictional limits of the United
States, or hovering on the coast thereof, having on board any Negro,
mulato, or person of color, for the purpose of selling them as
slaves, or with intent to land the same in any port or place within
the jurisdiction of the United States, contrary to the prohibition
of this act, every such ship or vessel, together with her tackle,
apparel and furniture, and the goods or effects which shall be found
on board the same, shall be forfeited to the use of the United
States, and may be seized, prosecuted and condemned in any court of
the United States having jurisdiction thereof. And it shall be
lawful for the President of the United States, and he is hereby
authorized, should he deem it expedient, to cause any of the armed
vessels of the United States, to be manned and employed to cruise on
any part of the coast of the United States or territories thereof,
where he may judge attempts will be made to violate the provisions
of this act, and to instruct and direct the commanders of armed
vessels of the United States, to seize, take, and bring into any
port of the United States all such ships or vessels, and moreover to
seize, take and bring into any port of the United States, all ships
or vessels of the United States wheresoever found on the high seas,
contravening the provisions of this act, to be proceeded against
according to law," &c.
Here then are two very extensive limitations, by the laws of the
United States, upon the doctrines of Sir William Scott, pronounced
in the case of the Louis. These limitations embrace both the cases
of the Antelope and of the Amistad.
Yet in the case of the Antelope, Chief Justice Marshall cites the
opinions of Sir William Scott in the case of the Louis, without any
notice whatever of the statute laws of the United States
contradictory to those opinions, and the Attorney General Grundy
cites, in the case of the Amistad,
the opinions of Chief Justice Marshall in that of the Antelope, as
authority for a principle which in that very opinion the Chief
justice declares not settled.
The truth is, that the opinions of Sir William Scott in the case of
the Louis, have reference only to the slave trade, and the shipment
of slaves on the coast of Africa: the case of the Antelope was for
the violation of the laws of the United States against the
importation of slaves into the United States for sale. In all these
cases the right of visitation and search of foreign vessels is not a
merely belligerent right; it is exercised at all times, in peace or
war, and if a French ship laden with slaves were found hovering on
the coast of the United States, or within at least four leagues of
their shores, and brought in, neither would the possession be
unlawfully divested, nor would the foreigner be left to the justice
of his own country. There is no act of Parliament against the
importation of slaves into England for sale: the opinions of Sir
William Scott look to no such case, for no such crime could then be
committed. They had no application therefore to the case of the
Antelope, and were very erroneously cited as warranting the
surrender of that vessel and her cargo of Africans to the Spanish
claimants.
I have said that the decisions of all the courts of the United
States in that case directing that surrender, are apologetic. They
admit that the traffic in slaves is contrary to the law of nature;
that it is inhuman, cruel, odious, detestable; but that it is not
contrary to the law of nations, and therefore must be acknowledged,
defended, protected and carried into execution for other nations by
the Courts of the United States, although as abhorrent to our laws
as to the laws of nature. For this distinction also, our courts are
indebted to Sir William Scott, whose ingenuity in that same case of
the Louis, lays down the following position, cited also approvingly,
by Chief Justice Marshall, in his opinion upon the case of the
Antelope.
"A court," says the British Judge, "
in the administration of law, cannot attribute criminality to an
act where the law imputes none. It must look to the legal standard
of morality; and upon a question of this nature, that standard
must be found in the law of nations, as fixed and evidenced by
general and ancient and admitted practice, by treaties, and by the
general tenor of the laws and ordinances, and the formal
transactions of civilized states: and looking to these
authorities, he found a difficulty in maintaining that the
transaction was legally criminal."
In the Declaration of Independence the Laws of Nature are announced
and appealed to as identical with the laws of nature's God, and as
the foundation of all obligatory human laws. But here Sir William
Scott proclaims a legal standard of morality, differing from,
opposed to, and transcending the standard of nature and of nature's
God. This legal standard of morality must, he says, in the
administration of law, be held, by a Court, to supersede the laws of
God, and justify, before the tribunals of man, the most atrocious of
crimes in the eyes of God. With such a principle it is not
surprising that Sir William Scott should have found a difficulty in
maintaining that the African slave trade was legally criminal, nor
that one half the Supreme Court of the United States should have
adopted his conclusions. It is consolatory to the friends of human
virtue and of human freedom to know, that this error of the first
concoction, in the moral principle of a British judge, has been, so
far as relates to the African slave trade, laid prostrate by the
moral sense of his own country, which has overcome the difficulty of
finding the slave trade criminal, by the legal and national
abolition of slavery itself.
The decree of the Supreme Court, in 1825, " proceeding to give such
decree as the Circuit Court ought to have given, did direct and
order that the restitution to be made to the Spanish claimant should
be according to the ratio which 93 (instead of 166) bears to the
whole number, comprehending as well those originally on board the
Antelope as those which were put on board that vessel by the captain
of the Arraganta. After making the apportionment according to this
ratio, and deducting from the number the rateable loss which must
fall on the slaves, to which the Spanish claimants were originally
entitled, the residue of the said 93 were to be delivered to the
Spanish claimant, on the terms mentioned in the decree of the
Circuit Court: and all the remaining Africans were to be delivered
to the United States, to be disposed of according to law."
A mandate issued to the Circuit Court for the district of Georgia
for the execution of this decree. One would suppose that the Supreme
Court had sufficiently manifested its disapprobation of the mode of
settling the question of freedom and slavery, by lot; and yet was
their decree, on this point, not 80 explicit, but that one of the
two judges of the Circuit Court believed that the selection between
the Africans to be delivered to the Spanish claimants as slaves, and
those claimed by the Portuguese Vice Consul, but whom the Supreme
Court had declared free, might still be made by lot. The other judge
understood better the spirit of the Supreme tribunal; and hence
arose a dilberence of opinion between the two judges of the Circuit
Court, which sent the case back for a second judgment of the
appellate court. The second judgment of the Supreme Court, in the
case of the Antelope, was rendered at their February term, 1826, and
is reported (11 Wheaton, 413) as follows:—" Certificate.—A mandate
having issued to the Circuit Court for the District of Georgia, to
carry into execution the decree of this Court, pronounced at the
February term, 1825, to deliver certain Africans, in the said decree
mentioned, to the Spanish Consul for Spanish claimants; and the
judges of that court having been divided in opinion respecting the
mode of designating the said slaves to be delivered, and separating
them from others to be delivered to the United States, whether the
same should be made by lot, or upon proof on the part of the Spanish
claimant, it is ordered to be certified to the said Circuit Court of
Georgia, that, in executing the said mandate, the Africans to be
delivered must be designated by proof made to the satisfaction of
the Court."
To understand this difference of opinion, with regard to the mode of
designating the Africans to be delivered up to the Spanish claimant
and to slavery, it is to be remembered, that the libel of the
Spanish Vice Consul before the District Court had claimed 150 of the
Africans captured by Captain Jackson, and the libel of the
Portuguese Vice Consul 130. That the decree of the District Court,
founded on the report of the clerk, had awarded 142 of the 212
surviving Africans to the Portuguese, and 63 to the Spanish Vice
Consul; while the subsequent decree of the Circuit Court, after a
delay of one term and the admission of further evidence, had
allotted in the ratio of 166 to the Spanish, and 130 to the
Portuguese claimants. That is, deducting from the Spanish number the
16 persons drawn by lot and liberated, this decree gave to the
Spanish and Portuguese Vice Consuls the ratio of the full number
claimed by each of them in his respective libel. The Supreme Court,
reversing this decree of the Circuit Court, had directed that the
ratio of the whole number, to be delivered up to the Spanish Vice
Consul should be reduced from 166 to 93; and that number was still
to be reduced by the rateable loss, which the clerk of the District
Court had reported to be 30. And all the rest, by the decree of the
Supreme Court, were to be liberated. If, then, the Africans to be
delivered to the Spanish Vice Consul had been drawn from the whole
number by lot, he would have received 63; but the Supreme Court
having, upon this second appeal, decreed that the Spanish claimant
must identify by proof of having been taken by the Arraganta, in the
Antelope, every individual, to be delivered up to him, explicitly
rejected, for the second time, the lot, as a mode of ascertaining
freemen among slaves, and actually diminished the number of victims
delivered up to the Spaniard, from 63 to 39. And this was the number
finally delivered up by the decree of the Supreme Court of the
United States of the captives of the Antelope to the Spanish Vice
Consul. But this was not the last decision of the Supreme Court in
the case.
It was remanded to the Circuit Court, with directions to make a
final disposition of the controversy between the parties pursuant to
the principles of the decrees of 1825 and 1826. And now came up the
question, to use a vulgar but significant phrase, Who should pay the
piper ?
"The Circuit Court, [says the Report, 12 Wheaton, 547,] in order to
enable it to decree finally in the case, directed the register to
take and report an account of the costs, and also of the expenses of
keeping, maintaining, &c. of the Africans, by the marshal, and
which account (amounting to upwards of thirtysix thousand dollars)
was accordingly reported. Exceptions were filed to the report by
both the Portuguese and Spanish claimants. The Circuit Court also
caused proofs to be taken, for the purpose of identifying.
individually the Africans to be delivered to the Spanish claimants,
as directed by the decree of 1816.
Thus circumstanced, the case came on for final hearing before the
Circuit Court. The Court decreed that the Portuguese claimant should
not be made liable for costs, or any proportion of the expenses and
charges of the marshal, for maintaining, &c. the Africans: and
being of opinion that 39 of the Africans were sufficiently
identified, by proof, as being the property of the Spanish
claimants, directed the 39 Africans, so identified, to be delivered
to the Spanish claimants, upon their paying a proportion of the
costs and expenses reported by the registrar, in the ratio of the
number of Africans delivered to the whole number. And the Circuit
Court was further of opinion, that the residue of the Africans not
directed to be delivered to the Spanish claimants should be
delivered to the United States, to be disposed of according to law:
but on the question, whether they shall be delivered absolutely, or
on condition of payment of the balance of the expenses which will
remain unsatisfied, after charging the Africans adjudged to the
Spanish claimants in their due ratio, the Judges of the Circuit
Court being divided in opinion, ordered this difference of opinion
to be ''certified to this Court."
The United States District Attorney appealed from so much of this
final order of the Circuit Court as related to the apportionment
among the several parties of the costs and expenses in the
preservation, maintenance, and custody of the said Africans, and of
the costs and expenses of the various proceedings had in relation to
the said Africans; and also from so much of said order as decreed 39
of the said Africans to the Spanish claimants.
So extraordinary, so antijudicial is every thing upon the records
in this case of the Antelope, that the Supreme Court actually did
not know what was the question upon which the judges of the Circuit
Court were opposed in opinion—they supposed it was, whether the
Africans not directed to be delivered to the Spanish claimants
should be delivered by the marshal to the United States, absolutely
and unconditionally, to be disposed of according to law, that is, to
be liberated and sent home; or whether it should be imposed on the
United States, as a condition precedent to their delivery, that the
United States should pay to the marshal his claim for expenses, at
the rate of sixteen cents a day for each African, (for several
years) in the ratio of the number to be delivered to the United
States.
This, it will be perceived, was still the question of freedom or
slavery to the poor Africans. If the decree had been, that the
payment of these expenses, amounting to about 350 dollars a head,
was a condition precedent to their delivery to the United States, in
the event of nonpayment, the marshal had a lien upon the Africans,
and they would have been his slaves.
The mode of proof admitted by the Circuit Court to identify the
individuals to be doomed to slavery and delivery to the Spanish
claimants cannot commend itself to the sense of justice, of
humanity, or of freedom. Fifty of them, employed upon the
fortifications, had been selected by the marshal, and recognized by
a man named Grondona, who had been second officer on board the
Antelope when the slaves were purchased and shipped in Africa.
Grondona had since disappeared, and was said to be dead; but there
were witnesses in Court who had been present at the examination when
Grondona recognized thirtyfour of the Negroes and they him, by
speaking together, and by signs, though the witnesses knew no. thing
of the language in which they spoke. Other witnesses testified to
his having recognized five more. The Africans had no notice that
their fate, as freemen or slaves, was to depend on this recognition.
They had no one to defend them, and protest for them, against the
manner of disposing of their free dom. The examination was in open
court, but the only evidence furnished was testimony to individuals
whom Grondona had recognized and who had recognized him. Hearsay
evidence of one whose language the witnesses did not understand!
Yet the Supreme Court thought this evidence sufficient, under the
very peculiar circumstances of this case, reasonably to satisfy the
mind of the identity of thirtynine of the Africans, as belonging to
the Spanish claimants, and affirmed the decree of the Circuit Court
for their delivery up to the Spanish Vice Consul.
Under the very peculiar circumstances of the case, in order to
enslave 39 human beings, otherwise entitled to freedom, evidence was
deemed sufficient, which, upon an ordinary question of property, of
five dollars value, between man and man, would have been rejected as
inadmissible.
The very peculiar circumstances of the case are quite as strongly
masked, in the opinion of the judge of the Circuit Court, in
December, 1826, as they had been in his preceding opinion, delivered
in l821. In apologizing for the enormous amount of the marshal's
bill, allowed by the court, which he is aware must expose the court,
and the administration of justice in the country, to certain
imputations, he says, "What could the court do? The United States
regard the subjects of this suit as men and not things. They could
not be sold, and the money lodged fin the registry. They were then
prisoners, and necessarily to be kept and treated as such." Had he
judge allowed his reason to advance one step further, he would have
seen, that precisely because they were men and not things, precisely
because they could not be sold, precisely because they must be kept
and treated, if at all, as prisoners they could not be restored
entire as merchandize, nor therefore, come within the purview of the
9th article of our treaty with Spain.
"The next question," says the judge
of the Circuit Court, " is, by whom these costs are to be paid?
That the maintenance of the Africans was n legal charge on the
United States, in the first instance, is perfectly clear. By the
act of February 28, 1799, in forcing them into the hands of the
marshal, the United States became bound for their subsistence."
The judge of the Circuit Court further affirms, that the Supreme
Court, by its decree of 1825, and explanatory decree of 1826,
established seven principles; the first of which, in his
enumeration, is—" That the lay of nations recognized both slavery
and the slave-trade."
But Chief Justice Marshall, in delivering the opinion and
pronouncing the decree of the Supreme Court in 1825, declared
that, on the question of the restitution to the Spanish claimant,
which depended entirely upon the recognition of the slavetrade by
the LAW of nations, " the Court divided on it, and, consequently,
NO PRINCIPLE IS SETTLED. '
The judge of the Circuit Court was, therefore, in manifest error
when he said that the Supreme Court had, by the decrees of 1825 and
1826, established the principle, that the law of nations recognized
both slavery and the slavetrade. And this mistake discloses the
source of that great perplexity, which troubles him, to find a
consistency between the principle which he erroneously supposes them
to have established, and their decree for carrying it into
execution. It is not our business to inquire into the reasons of
that Court. " We must give effect to it according to what we
understand to be its meaning. And, upon collating and combining
their decree of 1825 with the explanatory decree of 1826, the two
will be found to amount to this—that the rights of the Spaniards
shall be recognized; but, in reducing that right to possession, they
shall be held to have established a claim originally to
ninety-three, which number shall be reduced by the average of
deaths; and to the number so ascertained, they shall be held to
produce proof of individual identity. But all the cargo, with the
exception of those to be thus identified, shall be delivered over to
the United States. This will be doing what that Court certainly
intended to do: it will make a final disposition of a most
troublesome charge. It is our duty (says he) to find out the meaning
of the decree of the Supreme Court, and to obey it. And here it is
evident, that although their reasoning, and the principles
recognized, would seem to go fully up to the maintenance of the
Spanish right, yet the decree, in its details, sustains those rights
under very important limits and modifications."
And such is the history of the case of the Antelope in the judicial
tribunals of the United States. That vessel, commanded by a citizen
of the United States, was taken in the very act of smuggling 258
Africans into the United States for sale as slaves, and by the
plain, unquestionable letter of the 4th section of an act of
Congress of 20th April, 1818, was forfeited; while, by an act in
addition to the acts prohibiting the slavetrade, of 3d March, 1819,
every African thus imported in the Antelope was made free, —subject
only to safe keeping, support, and removal beyond the limits of the
United States, by direction of their President.
After seven years of litigation in the Courts of the United States,
and, of course, of captivity to nearly all of these Africans who
survived the operation; after decrees of the District Court,
reversed by the Circuit Court, and three successive annual reversals
by the Supreme Court of the decrees of the Circuit Court; what was
the result of this most troublesome charge?
The vessel was restored to certain Spanish slavetraders in the
island of Cuba. Of the Africans, about fifty had perished by the
benignity of their treatment in this land of liberty, during its
suspended animation as to them; sixteen, drawn by lot from the whole
number, (by the merciful dispensation of the Circuit Court, under
the arbitrary enlargement of the tender mercies of the District
Judge, which had limited the number to seven,)—sixteen had drawn the
prize of liberty, to which the whole number were entitled by the
letter of the law; and of the remainder, THIRTY NINE upon evidence
inadmissible upon the most trifling question of property in any
court of justice, were, under the very peculiar circumstances of the
case, surrendered! delivered up to the Spanish vice consul—AS
SLAVES! To the rest was at last extended the benefit of the laws
which had foreordained their emancipation. They were delivered over
to safe keeping, support, and transportation, as freemen, beyond the
limits of the United States, by the Chief Magistrate of the Union.
And now, by what possible process of reasoning can any decision of
the Supreme Court of the United States in the case of the Antelope,
be adducedas authorizing the President of the United States to seize
and deliver up to the order of the Spanish minister the captives of
the Amistad? Even the judge
of the District Court in Georgia, who would have enslaved all the
unfortunates of the Antelope but seven, distinctly admitted, that,
if they had been bought in Africa after the prohibition of the trade
by Spain, he would have liberated them all.
In delivering the opinion of the Supreme Court, on their first
decree in the case of the Antelope, Chief Justice Marshall, after
reviewing the decisions in the British Courts of Admiralty, says,
"The principle common to these cases is, that the legality of the
capture of a vessel engaged in the slave trade depends on the law of
the country to which the vessel belongs. If that law gives its
sanction to the trade, restitution will be decreed: if that law
prohibits it, the vessel and cargo will be condemned as good prize."
It was by the application of this principle, to the fact, that, at
the time when the Antelope was taken by the Arraganta, the slave
trade, in which the Antelope was engaged, had not yet been made
unlawful by Spain, that the Supreme Court affirmed so much of the
decree of the Circuit Court as directed restitution to the Spanish
claimant of the Africans found on board the Antelope when captured
by the Arraganta.
But by the same identical principle, applied to the case of the Amistad, if, when captured by
Lieutenant Gedney, she and her cargo had been in possession of the
Spaniards, and the Africans in the condition of slaves, the vessel
would have been condemned, and the slaves liberated, by the laws of
the United States; because she was engaged in the slave trade in
violation of the laws of Spain. She was in possession of the
Africans, selfemancipated, and not in the condition of slaves.
That, surely, could not legalize the trade in which she had been
engaged. By the principle asserted in the opinion of the Supreme
Court, declared by Chief Justice Marshall, it would have saved the
vessel, at once, from condemnation and from restitution, and would
have relieved the Court from the necessity of restoring to the
Africans their freedom. Thus the opinion of the Supreme Court, as
declared by the Chief Justice, in the case of the Antelope, was a
fact, an authority in point, against the surrender of the Amistad, and in favor of the
liberation of the Africans taken in her, even if they had been, when
taken, in the condition of slaves. How monstrous, then, is the claim
upon the Courts of the United States to reinslave them, as thralls
to the Spaniards, Ruiz and Montes! or to transport them beyond the
seas, at the demand of the Minister of Spain!
I said, when I began this plea, that my final reliance for success
in this case was on this Court as a court of JUSTICE; and in the
confidence this fact inspired that, in the administration of
justice, in a case of no less importance than the liberty and the
life of a large number of persons, this Court would not decide but
on a due consideration of all the rights, both natural and social,
of every one of these individuals. I have endeavored to show that
they are entitled to their liberty from this Court. l have avoided,
purposely avoided, and this Court will do justice to the motive for
which I have avoided, a recurrence to those first principles of
liberty which might well have been invoked in the argument of this
cause. I have shown that Ruiz and Montes, the only parties in
interest here, for whose sole benefit this suit is carried on by the
Government, were acting at the time in a way that is forbidden by
the laws of Great Britain, of Spain, and of the United States, and
that the mere signature of the Governor General of Cuba ought not to
prevail over the ample evidence in the case that these Negroes were
free and had a right to assert their liberty. I have shown that the
papers in question are absolutely null and insufficient as passports
for persons, and still more invalid to convey or prove a title to
property.
The Conclusion of
the Argument of John Quincy
Adams
The Argument of John Quincy Adams in the Amistad Case
The review of the case of the Antelope, and my argument in
behalf of the captives of the Amistad,
is closed.
May it please your Honors: On the 7th of February, 1804, now more
than thirty seven years past, my name was entered, and yet stands
recorded, on both the rolls, as one of the Attorneys and Counsellors
of this Court. Five years later, in February and March, 1809, I
appeared for the last time before this Court, in defence of the
cause of justice' and of important rights, in which many of my
fellow citizens had property to a large amount at stake. Very
shortly afterwards, I was called to the discharge of other
duties—first in distant lands, and in later years, within our own
country, but in different departments of her Government.
Little did I imagine that I should ever again be required to claim
the right of appearing in the capacity of an officer of this Court;
yet such has been the dictate of my destiny—and I appear again to
plead the cause of justice, and now of liberty and life, in behalf
of many of my fellow men, before that same Court, which in a former
age I had addressed in support of rights of property I stand again,
I trust for the last time, before the same Court— 'hic caestus,
artemque repono." I stand before the same Court, but not before the
same judges—nor aided by the same associates —nor resisted by the
same opponents. As I cast my eyes along those seats of honor and of
public trust, now occupied by you, they seek in vain for one of
those honored and honorable persons whose indulgence listened then
to my voice. Marshall—Cushing—Chase—Washington—Johnson—Livingston—
Todd—Where are they ? Where is that eloquent statesman and learned
lawyer who was my associate counsel in the management of that cause,
Robert Goodloe Harper? Where is that brilliant luminary, so long the
pride of Maryland and of the American Bar, then my opposing counsel,
Luther Martin? Where is the excellent clerk of that day, whose name
has been inscribed on the shores of Africa, as a monument of his
abhorrence of the African slavetrade, Elias B. Caldwell, Where is
the marshal—where are the criers of the Court I Alas! where is one
of the very judges of the Court, arbiters of life and death, before
whom I commenced this anxious argument, even now prematurely closed?
Where are they all I Gone ! Gone ! All gone!— Gone from the services
which, in their day and generation, they faithfully rendered to
their country. From the excellent characters which they sustained in
life, so far as I have had the means of knowing, I humbly hope, and
fondly trust, that they have gone to receive the rewards of
blessedness on high. In taking, then, my final leave of this Bar,
and of this Honorable Court, I can only ejaculate a fervent petition
to Heaven, that every member of it may go to his final account with
as little of earthly frailty to answer for as those illustrious
dead, and that you may, every one, after the close of a long and
virtuous career in this world, be received at the portals of the
next with the approving sentence—"Well done, good and faithful
servant; enter thou into the joy of thy Lord."
AMISTAD
HOMEPAGE