by DOUGLAS 0. LINDER*
[This essay was originally published in Journal of Maritime Law
Commerce, Vol. 31, No. 4, October, 2000.]
Moviemakers believe that history can be made more dramatic. They add and subtract characters, invent dialogue and scenes, make heroes more heroic, make villains more villainous, correct incorrectness, make ends happier, and turn shades of gray into black or white. They even tell lies--all in the interest of providing a good show, of course. Steven Spielberg, producer-director of the 1997 historical drama "Amistad," is no exception.(1)
Whether Hollywood's reshaping of history is good or bad depends upon whether one believes it is more important to be thoroughly entertained or to have a clear sense of history. Right now, on this side of the Millennium, few people seem worked up about the fictionalizing of history.
The Journal of Maritime Law and Commerce is probably not the first source that most viewers of "Amistad" will consult to see if they got their history straight from Spielberg, but it is the aim of this article to make it a good choice for those who do. As the title of this journal suggests--and as its editor insists--special attention will be given in this article to the role admiralty law played in the improbable drama that began in 1839.
Spielberg opens "Amistad" with a blue and strobe-lighted scene of escape and mutiny. An African-born slave (we later find out his name is Cinque) is shown in the hold of a Spanish schooner, a few days out of the port of Havana, using a nail to free himself from his shackles. We feel his pain. Cinque frees the other slaves from their iron chains. A box of sugar cane knives is found and the knives are distributed among the Africans. The knife-wielding men climb the hatchway and surprise a light-skinned man (who history tells us was the vessel's cook). Cinque kills him with a single blow. The next victim is the schooner's captain. Fighting with other crew members ensues, but soon it is clear that the mutiny is successful. The Africans direct an old Spanish-looking man whose life they spared to sail towards Africa--towards their home.
The schooner, called La Amistad, does not, of course, sail to Africa. A good thing too: it would have made for far too short of a movie. Instead, the Spaniards trick the Africans, heading east during the day, then reversing course and heading west at night. The schooner zig-zags for weeks, eventually coming in sight of land off the eastern tip of Long Island, New York. It is the morning of August 26, 1839. Spielberg shows several Africans--including Cinque, by now obviously one of the heroes of this adventure--on shore, gathering food and water to take back to the Amistad. Before they can make it back, however, a brig of the United States Coast Guard, the Washington, comes alongside what must have seemed a suspicious vessel, sitting at anchor, flagless, and with its sails in tatters. Soon a contingent of Americans is off in a smaller boat to intercept a rowboat full of black men, now headed back to the Amistad. A shot is fired over the heads of the Africans. Cinque, one of the men in the rowboat, dives into the Atlantic. Spielberg's images of a slowly sinking Cinque and music with a distinctly mystic quality suggest that Cinque will drown, but we know he won't. He decides to face the Americans, reverses course, and surfaces near the Americans' boat. In the next scene, we watch the Amistad get pulled into port.
The port turns out to be New London in the state of Connecticut, not New York, where the Africans had first touched shore. The tow across the state line is a point of some significance in the real case, though one would not know it from the movie. Spielberg emphasizes the strangeness of the mysterious arrival of 44 very black, non-English speaking, rag-tag foreigners with African music that contrasts eerily with the grayness of a 19th century New England town. The Africans are paraded through the town's streets and lodged in the local jail.
Spielberg next applies his political spin. A prepubescent Queen Isabella II is informed of events. She couldn't care less. Martin Van Buren is shown on the campaign trail--a bit early, as the 1840 election is over 14 months away--receiving word of the now-bubbling controversy in Connecticut. He doesn't want to hear about it. "I'm trying to drink my brandy after a very long day," he explains. Van Buren doesn't care what happens to the Amistad captives: "There are what?three, four million Negroes in this country? Why on earth should I concern myself with these 44?” He wants the matter settled quickly. "I don't care how," the President demands, "you just do it." The scene cuts to a newspaper press room where we finally meet history's real hero (but not Spielberg's): Lewis Tappan, an ardent abolitionist and editor of an anti-slavery publication known as the Emancipator. As the headline "Freedom Fight at Sea" appears on screen, Tappan announces his determination to make sure the black captives "have good counsel."
The next thing viewers know they are in the middle of a wildly chaotic judicial proceeding of some sort. District Court Judge Andrew T. Judson is shown attempting to maintain some semblance of order as the Amistad blacks talk animatedly in a strange tongue. District Attorney William S. Holabird rises to "present the court with charges of piracy and murder." Then Lewis Tappan pops up with a petition for a writ that would require release of the blacks from custody. Holabird tells Tappan to "kindly refrain from impersonating a lawyer." Answering Tappan's petition, Secretary of State John Forsyth makes a surprise appearance--a surprise, at least, to anyone familiar with the real facts of the proceeding. Forsyth asserts, on behalf of the President, that the slaves must be returned to Spain pursuant to Article IX of the 1795 treaty between the United States and Spain commonly known as Pinckney's Treaty (2). An officer of the brig Washington adds to the confusion by leaping up with another naval officer to proclaim that "these slaves belong to me and my mate, Your Excellency." The officer, Lieutenant Thomas Gedney, contends that their actions in rescuing the Amistad entitle them "to claim salvage of the Amistad and all its cargo." An incredulous Judge Judson asks Gedney whether he makes his claim "above the claim of the Queen of Spain." The actor (Ralph Brown) playing Thomas Gedney demands to know, "Where was she when we were busy spiking the winds to bring her in?" Finally, a lawyer for the two Spanish slave owners, Jose Ruiz and Pedro Montes, gets his two sentences in. The slaves should, of course, the lawyer says, be returned to his clients--they're property, bought and paid for--and he even has the receipt.
Mercifully, the raging confusion ends, and Lewis Tappan walks down the steps of the courthouse only to be accosted by an earnest young man, who introduces himself as "Roger S. Baldwin, attorney-at-law." Baldwin volunteers to represent the Amistad captives as a "property lawyer," only to be told by a dour and dismissive Tappan that he is not needed: Tappan says he needs "a criminal attorney; a trial lawyer."
Of course, Tappan finally has the good sense to hire Baldwin, although they continue to argue over legal strategy. Baldwin, seeing the case as potentially involving "the wrongful transfer of stolen goods," asks Tappan whether the captives "were born slaves or were illegally acquired." An indignant Tappan responds by insisting that the legal fight "must be waged on the battlefield of righteousness." Tappan adds, "These are people, Mr. Baldwin, not livestock."
Soon we again find ourselves in a crowded courtroom. Holabird treats us to his obviously one-sided description of the mutiny aboard the Amistad. He recounts the "savagery" of the black "villains" and the "bravery" of Ruiz and Montes. The address to the court of Baldwin ("Dung-Scraper") appears complete with imagined subtitled Mendi translations of his arguments. Baldwin addresses Judge Judson as one might a kindergartner: "You know the difference between a cow and a cabbage?" he asks. This case, he goes on, is "about knowing the difference between here and there." What Baldwin has on his mind, it soon becomes obvious, is the difference between Cuba and Africa. He demonstrates that the captives know nothing of Spanish--at least they don't respond positively to his commands in Spanish--and we hope that convinces Judge Judson that the captives were born in Africa and therefore taken to Cuba in violation of an 1817 treaty between Great Britain and Spain prohibiting the importation of slaves into Spanish territories (3). It doesn't. Judson tells Baldwin that it will take something "more than circumstantial evidence" to persuade him the captives are Africans--just where he thinks they might come from if not Africa, viewers are left on their own to guess.
The judge's comment sends Baldwin scurrying to find interpreters and locate evidence that might prove his clients' origins. Rummaging around in the hold of the Amistad, Baldwin finds the smoking gun: a manifest from the Portuguese slave ship that carried the blacks across the Middle Passage. Somehow it ended up in the hands of Ruiz and Montes and was left aboard the battered schooner for an enterprising young attorney to discover.
Back in court again, Baldwin announces confidently, "My clients' journey did not begin in Havana; it began much farther away." Tappan finally shows some respect for his lawyer. Meanwhile, the trial begins to take on important political dimensions. President Van Buren concludes that if the Africans are freed, voters in southern states will turn against him. "The jury appears to be disposed to freeing them," his Secretary of State informs him, but "we can replace the judge." Sure enough, the judge is replaced with a younger, more handsome, and presumably more obedient judge. Just how this gross violation of separation of powers was accomplished, movie viewers are left to guess. The “switcheroo" infuriates Baldwin, of course. He overturns heavy office furniture just to make his anger obvious.
After a powerful and disturbing depiction of the Middle Passage (following John Quincy Adams' sage advice to "discover who they are," Baldwin and interpreters uncovered the full story of their clients' sufferings and adventure), we are back in court with the younger and more handsome handpicked judge. Cinque tells the judge his story. Holabird attacks Cinque's credibility, commenting snidely (Holabird is very snide), "Like all good works of fiction it was entertaining." But Baldwin has other tricks up his sleeve. He calls on Captain Fitzgerald, an officer on a British vessel patrolling African coasts, to corroborate Cinque's story. Soon a chant breaks out in the African section of the courtroom. Led by Cinque, the Africans begin repeating, increasingly loudly, in their broken English, "Give us free!" The young judge appears moved. He might not be a tool of the Executive after all.
At last, the decision. After announcing--to build up the suspense--that he has found it "impossible to deny the power of the government's position," he denies the power of the government's position. Ruiz and Montes, he concludes, "misrepresented" the origins of the captives. "Were they born in Africa?" he asks twice to build more suspense. "I believe they were," he says finally. He rejects the claims of Spain. More surprisingly, at least to students of the real Amistad case, he rejects the salvage claims of Gedney and Meade. Then, in a case of monumental judicial overreaching, he orders the arrest of Montes and Ruiz on charges of slave trading. Joyous celebration and more chanting breaks out in the courtroom.
The actions of the young judge are discussed by the powers-that-be. Van Buren and his advisors are upset. Spanish ministers are bewildered by this defiant act of judicial independence. Senator John Calhoun declares that if the Amistad captives are freed the South might have to begin the Civil War 20 years early. The government decides to appeal.
Lewis Tappan, for some reason, holds out little hope that the Supreme Court will affirm the favorable ruling below. He confides, darkly, to another abolitionist, "The truth is that they [the Africans] may be more valuable to our struggle in life than in death." Baldwin visits the jail where--contrary to historical evidence--the captives are still being kept and breaks the news: "Our Big Man" has appealed the decision.
Only John Quincy Adams might be able to save the day. Baldwin writes Adams an impassioned letter asking him to assist in the appeal. Adams rolls the letter into a ball. Baldwin begins to act like he is in need of psychiatric attention. Then, when all seems lost, "Old Man Eloquent" shows up at the jail cell door and says he is ready for action. Soon Adams and Cinque are trading legal advice about applicable laws and treaties. Cinque travels to Massachusetts for a tour of Adams' home and greenhouse. They have a heart-to-heart talk in the living room. Adams tells Cinque, "We are about ready to do battle with a lion that is threatening to rip our country in two."
Suddenly we are in the Supreme Court. A gavel falls. John Quincy Adams begins his argument, as Cinque and Baldwin watch in frozen silence. Adams, played by Anthony Hopkins, gives us quite a performance. He pleads for judicial independence and courage. He tells the Court that Cinque, who he asks to stand, is "the only hero in this room." He tells the Court it should decide in Cinque's favor even if it means war between the States: "If there be civil war, let it come--and let it be, finally, the last battle of the American Revolution." He sits down.
After a performance like that, what could the Court do? Justice Harry Blackmun, playing Justice Joseph Story, announces the Court's decision. Section 9 of Pinckney's Treaty is inapplicable. The Africans are not cargo, nor are they slaves. They are "free individuals with certain moral and legal rights," including the right of insurrection. The Africans are free. Cinque's shackles finally come off. Handshakes and thanks all around for the lawyers. After a brief epilogue, the movie ends.
The real history of the Amistad controversy is
every bit as interesting as Spielberg's history--it's
just different. Admiralty law plays a part in this real
history--and I promise to get to that--but first let's
try to straighten out some other parts of this unlikely
The Amistad, sailing eastward during daylight and generally westward at night, did zig-zag its way to Long Island. In his testimony before the grand jury, Lieutenant Meade of the U.S. brig Washington offered his account of the vessel's discovery:
We were running a line from Gardner's Island Point to Montauk. I was on the watch. We discovered the vessel, and as we approached, we saw wagons on shore. At my instance a boat was manned with six men, and I took possession of L'Amistad. Joseph [Cinque] was a part of the negroes on shore. I drove those on board below, and fastened on the hatch. Those on shore were shortly after secured. The hatch was subsequently removed, and Joseph bounded on the deck, and sprang overboard. He dove and swam with great dexterity, and was only caught after severe chase of twenty minutes. While overboard, he appeared to be working at his throat and waist. When captured again he was put in irons (6).Gedney ordered the Amistad towed to New London, Connecticut, where the arrival of the mysterious schooner dominated the local news. On August 26th, a sensational story ran in the New London Gazette:
[Pedro Montes] is the most striking instance of complacency and unalloyed delight we have ever witnessed, and it is not strange since only yesterday his sentence was pronounced by the chief of the bucanniers [sic], and his death song chanted by the grim crew, who gathered with uplifted sabres around his devoted head, which, as well as his arms, bear the scars of several wounds inflicted at the time of the murder of the ill-fated captain and crew. He sat smoking his Havana on the deck, and to judge from the martyr-like serenity of his countenance, his emotions are such as rarely stir the heart of man.The arrival of the Africans, according to a story in the New York Herald, "created a greater excitement in Connecticut than any event there since the close of the last century." The story had "all the romance of an eastern fairy tale." According to the Herald, "parsons go to preach to them [the Africans], philosophers to experiment on them, professors to pick up knowledge of their language, phrenologists to feel their heads, and young ladies to look and laugh at them." In the days leading up to the first trial in September, 4,000 persons a day paid 12 cents each to catch a glimpse of the Africans. Perhaps surprisingly, Spielberg seems to have understated the level of local interest in the Africans (8).
It is about at this point that Spielberg starts running with his artistic license. He puts words into the mouths of presidents and queens, invents a conflict between Lewis Tappan and the lawyers he hired, and misleads viewers into believing that there existed for weeks or months on end a serious question as to the continent of origin of the Amistad's black passengers.
Moviegoers expect to see presidents and queens, not just secretaries of state and foreign ministers, so Spielberg may be forgiven for inventing dialogue between President Martin Van Buren and his advisors and between Queen Isabella and her advisors. Moreover, Van Buren's words are consistent with our knowledge of him as one to whom electability and good relations were almost everything. He doubtless did not wish to anger either Southerners or Spaniards unnecessarily (9).
Somewhat more troubling to those who like their history straight is the largely invented conflict between Lewis Tappan and his able lawyer, Roger Baldwin. There is almost nothing in the historical record to indicate that Tappan had anything but respect--even at the earliest stages of the legal battle--for Baldwin's efforts (10).
Another significant distortion in the movie concerns the role played by Cinque in the Amistad case. While no doubt the central figure in the mutiny and the public imagination, Cinque neither was the best English speaker of the Africans nor a budding legal superstar, as Spielberg suggests. Unlike in the movie, Cinque never visited John Quincy Adams' home in Massachusetts and he certainly did not become the ex-President's unpaid, part-time law clerk (11).
Most of Spielberg's distortions, simplifications, and omissions--especially as they relate to legal issues, which I'll get to later (as I promised)--can be excused: he wanted people to go to his movie. Less forgivable is his treatment of abolitionist Lewis Tappan. Tappan did more than anyone to save the Africans of the Amistad, yet in Spielberg's portrayal he is demoted to a religious fanatic whose obtuseness must be overcome before Baldwin and John Quincy Adams can get about the business of rescue. It was Tappan who helped put together the Africans' defense team, worked to improve their conditions of confinement, arranged for their education and housing after their release from jail, and raised the money for their eventual return to Africa (12).
John Quincy Adams understood that Tappan, not he, was the real hero of the story. On the day of victory in the Supreme Court, Adams wrote to Tappan: "The captives are free! Thanks! in the name of humanity and justice, to you." Later, Adams would thank Tappan for a gift presented to him by the courageous abolitionist:
Dear Sir,The significance of Tappan's contribution also becomes apparent from letters written from Africa by the Africans he worked so hard to save. In a letter to Tappan, Cinque wrote:
Dear Sir:Americans love their happy endings, so Spielberg gave them one. The Africans in the movie return to Africa, presumably to be reunited with loved ones and live in peace and harmony. The reality is somewhat different. Some of the Amistad blacks struggled to deal with the pull of two very different worlds, one modem and Christian, one primitive and pagan. Others were pained to discover that their loved ones had been victims of the civil war raging in their homeland.
Life was equally difficult for the Christian missionaries that accompanied the Amistad blacks to Freetown harbor. It didn't take them long to realize they had their work cut out for them. Moments after disembarking in Freetown, some of the Africans stripped and engaged in what the missionaries called "heathenish dancing." Soon the missionaries wrote letters complaining of their Amistad students: some fell back to their "licentious habits," some disappeared, some were just trouble. In addition to the frustrations of their work, missionaries contended with rats (one missionary reported killing 164 in a single day), 175 inches of annual rainfall, and diseases such as malaria and yellow fever. One by one, the missionaries died. The mission, however, lived on. The last of the Amistad Africans to have contact with the Christian outpost was Cinque. In 1879, old and emaciated, he came to die. He was buried among the graves of the mission called Mo Tappan (15).
So what role did admiralty law play in the Amistad case? A large one. The controversy that unfolded in three American courts from 1839 to 1841 involved politics, criminal law, international law, and property law. But throughout it all, admiralty law added an additional level of complexity to this very complex case (16).
Three days after the Amistad was towed into port in New London, federal district judge Andrew T. Judson conducted an inquiry on board the Washington. The main focus of that inquiry concerned the adult male Africans and their possible guilt in connection with murder and mutiny aboard the Amistad. District Attorney Holabird filed a complaint against the Africans. As the alleged crimes took place on the high seas, they fell within the admiralty and maritime jurisdiction of the United States. On August 29, 1839, Judson ordered the 39 adult males to be transported to the New Haven jail where they would be held for the next meeting of the grand jury of the United States Circuit Court scheduled for the following month in Hartford. The four black children were ordered held as witnesses to the possible crime (17).
Ruiz and Montes contended at the inquiry that the blacks were their lawful slaves and asked that they, as their property, be returned to them. Judson announced that property issues would be resolved along with the criminal questions at the September hearing in Hartford (18).
The fact that the Amistad case was tried in Connecticut courts may have been the result of a calculation by Lieutenant Gedney that he would receive a higher salvage award in Connecticut, a slave state, than in New York, a free state. When discovered, the Amistad was at anchor a half mile from the shore of Long Island, but Gedney towed the schooner to New London, Connecticut rather than a convenient New York port (19).
A description (using the run-on sentences popular in opinions of the day) of Gedney's libel for salvage, filed in the District Court for Connecticut on behalf of himself, Richard Meade, and the officers and crew of the brig Washington appears in the Supreme Court's 1841 decision:
Thomas R. Gedney ... filed a libel in the District Court of the United States, for the District of Connecticut, stating that off Culloden Point, near Montauck [sic] Point, they took possession of a vessel which proved to be a Spanish schooner called the Amistad, of Havana, in the island of Cuba, of about 120 tons burden; and the said libellants found said schooner was manned by forty-five negroes, some of whom had landed near the said point for water; and there were also on board, two Spanish gentlemen, who represented themselves to be, and, as the libellants verily believe were part owners of the cargo, and of the negroes on board, who were slaves, belonging to said Spanish gentlemen; ... that the schooner had on board and was laden with a large and valuable cargo, and provisions, to the amount, in all, of forty thousand dollars, and also money to the sum and amount of about two hundred and fifty dollars; and also fifty-four slaves, to wit, fifty-one male slaves, and three young female slaves, who were worth twenty-five thousand dollars.... That the schooner was accordingly taken possession of, and recaptured from the hands and possession of the negroes who had taken the same; that the schooner was brought into the port of New London, where she now is; and the schooner would with great difficulty, exposure, and danger have been taken by the libellants, but for the surprise upon the blacks who had possession thereof, a part of whom were on shore; and but for the aid and assistance and services of the libellants, the vessel and cargo would have been wholly lost to the respective owners thereof. . . .
Lewis Tappan and the abolitionist lawyers representing the Africans cared little, of course, whether Gedney or Green or anyone else received salvage for the cargo of the Amistad. Nonetheless, they soon found themselves immersed in admiralty law. It was important, they concluded, to determine whether admiralty law provided a basis for the court assuming jurisdiction over the Africans, and whether it dictated that the proceedings that would determine the fate of the Africans must be in Connecticut, or--as they preferred--in New York.(22)
When the Circuit Court convened in Hartford on September 19th before Judge Smith Thompson, Roger Baldwin argued that the Africans were "human beings, not property" and therefore not within the jurisdiction of the district court which--at the time--had no jurisdiction to try criminal cases. Moreover, Baldwin argued, even if the district court did have admiralty jurisdiction over those Africans found on board the Amistad, it could not have jurisdiction over those Africans taken on shore in New York. Finally, Baldwin contended, even if there was admiralty jurisdiction over the Africans, it must be in New York, not Connecticut, as Lieutenant Gedney had no authority to transport them into any district court other than the one located in the state in which they were found. Lewis Tappan, writing in the New York Commercial Advertiser, described Baldwin as being "very severe upon Lieut. Gedney--not for taking the vessel, but for setting up a claim of salvage, which, he said, should be scouted from the tribunals of a free country.”(23)
Baldwin asked Judge Thompson to grant a writ of habeas corpus ordering the release of the three African girls against whom no criminal charges were pending. The application for the writ became the first vehicle for publicizing the inhumanity of slavery. Its purpose, according to Joshua Leavitt--one of the three members of the Amistad Defense Committee--was "to test [the Africans'] right to personality.” (24)
Meanwhile, on the same day in the same courthouse, Andrew Judson convened the District Court to consider admiralty claims arising out of the capture of the Amistad. Judge Judson strongly suggested that the salvage claims against the blacks were invalid. The blacks could not be regarded as property in Connecticut and therefore the court lacked authority to order their sale for salvage.(25)
Lawyers for the Africans, for the slave owners, for the libel claimants, and for the United States offered up their best legal arguments. Spectators heard more than they probably wanted about such matters as Pinckney's Treaty, the Treaty of Ghent (which ended the War of 1812), (26) and Chief Justice Marshall's holding in The Antelope.(27) On September 20th, Judge Thompson rendered his decision on the jurisdictional issues. He ruled that neither his court nor any American court had jurisdiction to try the blacks for an alleged crime that took place "on board a Spanish vessel, with a Spanish crew and commander, and Spanish papers, as a mere coasting vessel, on the island of Cuba." The next day, however, Judge Thompson handed a victory to the Administration, ruling that the district court could retain jurisdiction over the blacks to resolve the property claims--"however abhorrent it may be to keep these persons in prison, or to view them in the light of property."
On September 23rd, Thompson denied the writ of habeas corpus. Suits to resolve the property issues must proceed in the district court. Thompson added his suggestion that one of the defense attorneys and District Attorney Holabird travel to Montauk Point to determine the precise location of the seizure of the Amistad by Lieutenant Gedney. Immediately after Thompson adjourned the Circuit Court, Judson convened the District Court. He directed that counsel for the blacks and the district attorney go to Montauk Point and set the matter for trial in November. The Africans returned to their temporary home in the New Haven jail.(28)
When Judge Judson called court to order at 10 o'clock on November 19th, Roger Baldwin appeared to argue again that the case should be dismissed on jurisdictional grounds: Lieutenant Gedney had seized the blacks in New York and had illegally taken them to Connecticut. In the free state of New York, Baldwin argued, Gedney's salvage action would be considered a wrongful attempt to reduce the Africans to slavery. The blacks were entitled, he claimed, to a jury trial in New York. General Isham, representing Gedney and Meade, objected. Baldwin, he said, should stop interfering with salvage questions and concentrate instead on securing his clients' freedom.(29)
Judge Judson asked for argument on the schooner's location at the time of seizure. Judson said that if he determined the Amistad was seized in New York, he would dismiss the case. On the other hand, if the Amistad was taken on the high seas, he would proceed to arguments on the merits of the salvage claims and other related matters. Interestingly, the salvage claim of Green and Fordham, based on their action in seizing a number of the Africans while they were on Long Island, worked to the advantage of the abolitionists. Green testified that the schooner was no more than 500 feet from shore and that at least 20 blacks were on the beach when Gedney came alongside the Amistad. Green said that by the time the brig Washington arrived on the scene, the situation was well under control. Peletiah Fordham testified: "So we determined to have the vessel at all hazards--forcibly if we can, peaceably if we must." (30)
Gedney and Meade, sharply dressed in naval uniforms, contradicted the testimony of their rival salvage claimants, Green and Fordham. Both testified that the Amistad had been at least half a mile from shore and that no more than eight or nine blacks had been ashore at the time they came alongside the schooner. A Cuban cabin boy, Antonio, and half a dozen of the Africans supported their version of the story. So too did the men Judge Judson had sent to determine the Amistad's exact location.(31)
Attorneys for the blacks argued that the Amistad was anchored in New York territorial waters--"within hailing distance" of the shore--and that therefore Cinque and the other Africans were subject to the laws and protections of New York, not Connecticut. Gedney, they claimed, seized the Amistad "without any lawful warrant or authority whatever." He performed no "meritorious act," because there was no danger. Moreover, he wrongfully took the Africans from New York to Connecticut. The Africans were free when they arrived in New York and they should be free now.(32)
Judge Judson adjourned the proceedings until January 7th in New Haven, then returned to his chambers in the City Hotel where lawyers took the deposition of Dr. Richard Madden, the British superintendent of liberated Africans. (33)
The trial resumed amid great excitement in New Haven. Students from Yale Law School and members of the community jockeyed for seats. Judge Judson frequently had to rap for order after applause brought on by Roger Baldwin's impassioned appeals for liberty. It by now was apparent to all neutral observers that the blacks found on shore and aboard the Amistad were recently from Africa, and therefore could not have been lawfully bought and sold in Havana. Nonetheless, much of the testimony was designed to make that fact irrefutably clear in the record. Two men testified that Ruiz had admitted the blacks "were just from Africa." Two African interpreters testified that the blacks were from Africa, and that all but three were Mende. Josiah Gibbs, a Yale professor of linguistics, agreed and offered his insights into the language of the blacks. Then, with the crowded courtroom in "breathless attention," Cinque--wrapped in a blanket--told the story of his capture, his voyage across the Atlantic, his being bought at a Cuban slave market, his being chained and inadequately fed on the Amistad, and his participation in the successful mutiny.(34)
Lawyers representing Gedney and Meade reversed the position they had taken in the libel claim filed in September. General Isham complained that he had been subjected to "insinuations and taunts" for seeking salvage for "human flesh." He said (in a statement contradicted by his earlier claim) that his clients never wanted salvage for the Africans. The Africans should be surrendered to the Spanish minister and salvage awarded for the Amistad and its other cargo.(35)
Governor William W. Ellsworth, counsel for Green, whose claims had been called absurd by Gedney's attorney, said that Green did not ask that the Africans be sold for salvage. But "if it becomes the duty of the Court to place these Africans to become the subject of salvage," the salvage should be Green's--and Green's alone. Green's attorneys contended that naval officers are not entitled to one cent for salvage for the performance of duty. If their actions merited salvage, then the money should go the government, not them personally. Judge Judson remarked that it was news to him that naval officers were entitled to salvage and asked the attorneys to submit authorities on the issue.
On Monday morning, January 13, 1840, Judson announced his decision. He ruled that the Amistad had been discovered where the tide "ebbs and lows," less than one half mile off Culloden Point, Long Island. Was the Amistad seized on the high seas? Judson turned to Daniel Webster's argument in the Supreme Court case of United States v. Bevans for a definition of "high seas": the "open ocean, where the dominion of the winds and waves prevails without check or control." (36) A "place of refuge" protected from the open ocean by "inclosures and projections of the land" would be a port or harbor, not the high seas. A study of maps showed "scarcely an indentation on the coast between Montauk and Culloden Point." The distance from shore was not critical. The Amistad was seized on the high seas. The fact that a number of Africans were on shore did not remove them from admiralty jurisdiction. Their "temporary object" had been to locate water and provisions. They were still "attached" to the Amistad. (37)
Judson rejected the salvage claims of Green and Fordham. They never took possession of the Amistad and they provided no "meritorious service." Gedney, Meade, and the crew of the Washington, however, had rendered "highly praiseworthy" services and were entitled to salvage for the schooner and its cargo--the inanimate cargo. Judson noted that when Gedney arrived the Amistad was "in perilous condition." It was "at the mercy of the winds and the waves" and under the control of people who knew next to nothing about navigation and had no hope of making a successful voyage across the Atlantic to their homeland. Gedney and his associates should receive one-third the appraised value of the schooner and its cargo.(38)
As for the blacks, they "were born free and ever since have been and still of right are free and not slaves." They had been "kidnapped" in violation of "their own rights and the laws of Spain." They had been "unlawfully sold as slaves" in Cuba in violation of the 1817 English-Spanish treaty prohibiting the importation of slaves into Spanish possessions. They mutinied out of a desire of "returning to their families and kindred." Judson announced that he would place the blacks under the control of the Executive, until such time as their passage home to Africa could be arranged. Contrary to Spielberg's suggestion, Judson did not order the arrest of Ruiz and Montes for slave trading. In fact, that feat had been accomplished months earlier in New York, after Lewis Tappan filed charges of assault and battery and false imprisonment against the two Cubans. (39)
Two weeks after Judge Judson's decision, the Van Buren Administration decided to appeal to the Circuit Court. Judge Thompson, sitting on the Circuit Court, saw the case--involving as it did the claims of two world powers and questions with significant domestic political implications--as one calling for Supreme Court attention. He therefore affirmed the district court ruling "pro forma." A May 1840 letter written by Lewis Tappan to John Scoble in London reveals that abolitionists remained concerned about the fate of the Africans:
The cause goes up to the Supreme Court of the United States which will sit at Washington January 1841. As Judge Thompson learned that the case would go up, whichever side he decided, he advised the counsel not to argue the matter at length, but to let it go to the highest judicial tribunal in the country with as little delay as possible. The action of this government is decidedly against these Africans and they will send them to Cuba if they dare.(40)On Monday, February 22, 1841, arguments began in the Supreme Court's crowded chamber in the U.S. Capitol. Cinque, unlike in the movie, is nowhere to be seen. Attorney General Henry Gilpin, arguing for the government, told the Court that it should not "go behind" the Amistad's papers and make inquiry as to their accuracy, but should accept them on their face in order to show proper respect for another sovereign nation.(41) Accepting the fraudulent papers would have meant, of course, that the Africans were slaves to be returned to Cuba. Roger Baldwin followed Gilpin, making many of the same arguments that been persuasive in the district and circuit courts. (42)
John Quincy Adams began his eagerly anticipated argument on February 24th. Justice Story would later call Adams' argument extraordinary for its power, for its bitter sarcasm, and for its dealing with topics far beyond the record and points of discussion. It was at times eloquent, at times a harangue, and at times a political declamation. Adams argued that if the President had the power to send the Africans to Cuba, he would equally have the power to seize 40 Americans and send them overseas for trial. Spain was asking the President to "first turn man-robber ... next turn jailer ... and lastly turn catchpole and convey them to Havana, to appease the vengeance of the African slave-traders of the barracoons” (43) He attacked the President for his sending a naval vessel to anchor in New Haven harbor with orders to transport the Africans to Cuba immediately, should Judge Judson's decision go against the Africans. He quoted the Declaration of Independence: "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." (44)
On March 9, 1841, the Supreme Court announced its decision. The Court's decision rested principally on the arguments of Roger Baldwin. Justice Story, speaking for the Court, said that the Negroes were "kidnapped Africans, who, by the laws of Spain itself, are entitled to their freedom....”(45) The Court had every right to examine the authenticity of the papers provided in Cuba. "Fraud will vitiate any, even the most solemn transactions; and an asserted title to property, founded on it, is utterly void.” (46) The Africans were not criminals: the ultimate right of human beings in extreme cases is to apply force against ruinous injustice. The Africans could stay or they could return to Africa.(47)
As for the claim that began the lengthy legal battle, Lieutenant Gedney's claim for salvage service, the Court was sympathetic. Justice Story noted that the United States did not object to an award. He called Gedney's actions "a highly meritorious and useful service to the proprietors of the ship and cargo." By "the general principles of maritime law," that made it "a just foundation for salvage." The Court found the one-third rate awarded by Judge Judson to be within his "sound discretion, under the very peculiar and embarrassing circumstances of the case.” (48)
From what one can gather from a viewing of Steven Spielberg's "Amistad," the African passengers of the schooner that left Havana in June 1839 owed their freedom primarily to the lofty and silver-tongued oratory of John Quincy Adams. In addition, many viewers of the film must have left theaters wondering how the same Court that handed down such a smashing victory for civil rights in 1841 could, just a decade-and-a-half later, produce the infamous Dred Scott decision.(49) In fact, the decision of the Supreme Court in the Amistad case rested not upon broad principles of justice, but on much narrower arguments rooted in treaty interpretation, property, and admiralty law.(50)
The arguments of John Quincy Adams--the climactic centerpiece in Spielberg's telling of the story--received only this brief mention in the official Court reports:
It was the purpose of the Reporter to insert the able and interesting argument of Mr. Adams, for the African appellees; and the publication of the "Reports" has been postponed in the hope of obtaining it, prepared by himself. It has not been received. As many of the points presented by Mr. Adams, in the discussion of the cause, were not considered by the Court essential to its decision and were not taken notice of in the opinion of the Court, delivered by Mr. Justice STORY, the necessary omission of the argument is submitted to with less regret.(51)
Writing in the San Francisco Chronicle, Edward Guthmann said Spielberg's film "veers between stoic political correctness and mushy popHollywood platitudes." Despite the "excesses of Spielberg's showy technique" it is "a wonderful story that needed to be told." (52) I agree. Somebody should do a documentary.
Interestingly, however, many of the "Amistad" critics complained that the movie had too much history. Philip Wuntch of the Dallas Morning News wrote that because of the "rush of historical detail" the movie lacked "a strong emotional current to flow gracefully." The result, he said, was that there were "few characters to care about." Steven Rosen in the Denver Post agreed, writing that the "complex" story caused the movie to lose "the kind of thrillingly direct narrative thrust that captivates moviegoers." Janet Maslin of the New York Times called the movie "diffuse," noting that it "divides its energies among many concerns: the pain and strangeness of the captives' experience, the Presidential election in which they become a factor, the stirrings of civil war, the great many bewhiskered abolitionists and legal representatives who argue about their fate.” (53)
History, unlike movies, is none the worse for being "complex" and "diffuse." We can choose for ourselves how to divide our energies among its many characters and concerns. We can pick up a character such as Lewis Tappan and follow his pre-Amistad efforts to end slavery. We can admire his gutsy response to the pro-slavery rowdies who ransacked his New York home and burned his furniture. Let the house stand unrepaired, he said, as a "silent anti-slavery preacher to the crowds that will flock to see it." We can leave him, if we wish, on the brisk morning of December 4, 1841, as he watched the Africans he had come to love sail eastward into the Atlantic aboard the Gentleman. "The spirit of liberty," he would write to a friend that day, "I am happy to say is rising."
Or we can tell a different story, one that begins with the arrival of the first slave ships on American shores in the 1600s, continues through the debates about slavery at the Constitutional Convention in Philadelphia, includes a chapter on the Amistad case, then continues with Dred Scott, the Emancipation Proclamation, Reconstruction, Jim Crow, Plessy v. Ferguson (54), Charles Hamilton Houston's and the NAACP's campaign to end segregation culminating in Brown v. Board of Education (55), Rosa Parks, "I Have a Dream," "Freedom Summer," and ends with the passage of the civil rights acts of the 1960s--or maybe it goes on. History, unconstrained by the limits faced by filmmakers, is full of compelling stories.(56)
The admiralty law that came out of the Amistad case also beats the movie. Who can doubt the correctness of the courts' two rulings that freed the Africans? No American court should have jurisdiction to try foreigners for crimes alleged to have been committed against other foreigners on a foreign ship outside U.S. waters. Nor should an American court have ordered free human beings to be sold at a salvage sale or award salvage based upon their market value. As for the other admiralty law issues in the case, whether the matter should have been tried in New York or Connecticut and whether Thomas Gedney performed "meritorious service" justifying an award of one-third of the value of the Amistad and its non-human cargo, those are questions outside my competence to answer. Interested readers wanting answers to those two questions should call the editor of this journal at his office or home.
1. The cast for Spielberg's production, which was released by DreamWorks SKG, included Djimon Hounsou (Cinque), Matthew McConaughey (Roger Baldwin), Anthony Hopkins (John Quincy Adams), Morgan Freeman (Theodore Joadson), Stellan SkarsgArd (Lewis Tappan), Nigel Hawthorne (President Martin Van Buren), Austin Pendleton (Professor Josiah Gibbs), Arliss Howard (Senator John C. Calhoun), Justice Harry A. Blackmun (Justice Joseph Story), Anna Paquin (Queen Isabella), David Paymer (Secretary of State John Forsyth), Pete Postlethwaite (District Attorney William Holabird), and Peter Firth (Captain Fitzgerald).
2. Treaty of Friendship, Limits, and Navigation Between the United States of America and the King of Spain, Oct. 27, 1795, U.S.-Spain, art. ix, 8 Stat. 138, 142 (requiring both countries to restore property taken from pirates to the rightful owner).
3. Treaty for the Abolition of the Slave Trade, Sept. 23, 1817, Gr. Brit.-Spain, 68 Consol. T.S. 45 (1817).
4. A number of books have been written about the Amistad case, including: M. Cable, Black Odyssey: The Case of the Slave Ship Amistad (1971); H. Jones, The Mutiny on the Amistad: The Saga of a Slave Revolt and its Impact on American Abolition, Law, and Diplomacy (1987); S. Jurmain, Freedom's Sons: The True Story of the Amistad Mutiny (1998); W. Myers, Amistad: A Long Road to Freedom (1998); W. Owens, Slave Mutiny: The Revolt on the Schooner Amistad (1953); K. Zeinert, The Amistad Slave Revolt and American Abolition (1997). The best of these sources for general background is probably the book written by Howard Jones.
An extensive history of the legal proceedings related to the Amistad case can be found in the Supreme Court's opinion: United States v. The Schooner Amistad, 40 U.S. (15 Pet.) 518 (1841). Large collections of primary materials (including newspaper articles from 1839 to 1841), maps, images, and essays concerning the case can be found on the following web sites: Mystic Seaport, Exploring Amistad (http://amistad.mysticseaport.org/welcome.html); National Archives and Record Administration, The Amistad Case (http://www.nara.gov/education/teaching/aniistadihome.html); Doug Linder, Famous Trials: The Amistad Trials (http://www.law.umkc.edu/faculty/projects/ftrials/amistad/AMISTD.HTM),
5. Jones, supra note 4, at 22-26.
6. Record of the Circuit Court Trial, N.Y. Herald, Sept. 23, 1839.
7. The Suspicious Looking Schooner Captured and Brought Into This Port, New London Gazette, Aug. 26, 1839. This account is also reported in J. Barber, History of the African Captives (1840).
8. The Captured Africans of the Amistad; Teaching Philosophy to Lewis Tappan & Co. in the Prison at Hartford, N.Y. Herald, Oct. 4, 1839.
9. Jones, supra note 4, at 133-65.
10. See, e.g., Lewis Tappan's reports from the trials, published in the New York Commercial Advertiser from September 1839 to January 1840. Tappan's reports are entirely complimentary of Baldwin's efforts.
11. Cable, supra note 4, at 77-106.
12. B. Wyatt-Brown, Lewis Tappan and the Evangelical War Against Slavery 205-25 (1969).
13. Letter from John Quincy Adams to Lewis Tappan, Nov. 19, 1841 (republished in Mendis Depart, J. Com., Nov. 27, 1841).
14. Letter from Cinque to Lewis Tappan, Jan. 13, 1842 (read by Tappan at the anniversary of the American and Foreign Anti Slavery Society). This letter was among those republished by Oberlin College in a brochure entitled "The Mendi Mission" (June 22, 1842).
15. See generally Cable, supra note 4, at chs. 11-12.
16. 1n an otherwise excellent article, Professor Roger S. Clark appears to have overlooked this point. He describes the case as involving homicide law, property law, public international law, conflict of laws, and criminal slave-trading law, but mentions admiralty law only briefly in a footnote dealing with federalism. See Clark, Steven Spielberg's Amistad and Other Things I Have Thought About in the Past Forty Years: International (Criminal) Law, Conflict of Laws, Insurance, and Slavery, 30 Rutgers L.J. 37 1, 387, 393 n.62 (1999).
17. According to the
Journal of Commerce, Sept. 10, 1839, the order of
Judge Judson read as follows:
18. An account of the initial inquiry aboard the Washington appears in Jones, supra note 4, at 28-29.
20. 40 U.S. at 521-23.
21. N.Y. Comm. Advertiser, Sept. 23, 1839. In a letter written from New Haven on Sept. 9, 1839, after meeting with Captain Green, Lewis Tappan offered the following account of the Africans' arrival and encounter with Green:
Captain Green, of Sag Harbor, who was one of the first men the prisoners met ashore, before their capture by Lieut. Gedney, of the U.S. brig Washington, and who has given me a circumstantial account, differing in many respects from what has been published, of all that took place, says that the Africans asked him, by one of their number who speaks a little broken English, "What country is this?" He replied, this is America. They immediately asked, "Is it a slave country?" Captain Green answered, it is free here, and safe, and there are no Spanish laws here. Shinquau then gave a sort of whistle, when they all sprang upon their feet and shouted. Captain Green and his associates sprang to their wagon for their guns, supposing the Africans were about to attack them. But Shinquau came up, delivered his cutlass and gun, and even offered his hat, &c, and the rest did the same, indicating that they would give all up, that Capt. G. might take charge of the schooner and everything on board. They however begged of him to take them to Sierre Leone. Shinquau positively assured Capt. G. at the time, and he repeats it now, that they threw nothing overboard. The stories about his loosening his girdle, and letting three or four hundred doubloons drop into the sea, and of diving and keeping under water forty minutes, are considered fabulous. The Africans assert that there was a quantity of doubloons in the trunks that were carried on shore on Long Island, and Captain Green says he heard the money rattle as the trunks were returned to the schooner by order of Lieut. Gedney. On examining the contents of the trunks afterwards no gold was found! Some person, or persons, are supposed to have the money, but who, is a secret. While on shore, at Long Island, Shinquau and his companions, although hungry, and with arms in their hands, would not kill a single animal, or take an article even to satisfy their hunger, without paying generously for it. They appeared, it is true, to know very little about the value of money, and gave a doubloon for a dog, and a small gold piece for some victuals.J. Com., Sept. 10, 1839.
22. Attomeys for the Amistad Africans filed an answer to the libel of Gedney and others on Sept. 19, 1839:
That the respondents, being treated on board said ves~el by said Ruiz and Montez and their confederates with great cruelty and oppression, and being of right free as aforesaid, were incited by the love of liberty natural to all men, and by the desire of returning to their families and kindred, to take possession of said vessel while navigating the high seas, as they had a right to do, with the intent to return therein to their native country, or to seek an asylum in some free state, where slavery did not exist, in order that they might enjoy their liberty under the protection of its government; that the schooner, about the 26th of August, 1839, arrived in the possession of the respondents, at Culloden Point near Montauk, and was there anchored near the shore of Long Island, within hailing distance thereof, and within the waters and territory of the state of New York; that the respondents, Cinque, Carlee, Darnmah, Baah, Monat, Nahguis, Quato, Con, Fajanah, Berrie, Gabbo, Fouleaa, Kimbo, Faquarmah, Cononia, otherwise called Ndzarbla, Yaboi, Bumah I st, Shurna, Fawne, Peale, Ba, and Sheele, while said schooner lay at anchor as aforesaid, went on shore within the state of New York to procure provisions and other necessaries, and while there, in a state where slavery is unlawful and does not exist, under the protection of the government and laws of said state by which they were all free, whether on board of said schooner, or on shore, the respondents were severally seized, and well those who were on shore as aforesaid, as those who were on board of and in possession of said schooner, by Lieutenant Gedney, his officers, and crew of the United States brig Washington, without any lawful warrant or authority whatever, at the instance of Ruiz and Montez, with the intent to keep and secure them as slaves to Ruiz and Montez, respectively, and to obtain an award of salvage therefor, from this honourable Court, as for a meritorious act. That for that purpose, the respondents were, by Lieutenant Gedney, his officers and crew, brought to the port of New London; and while there, and afterwards, under the subsequent proceedings in this honourable Court taken into the custody of the marshal of said district of Connecticut, and confined and held in the jails in the cities of New Haven and Hartford, respectively, as aforesaid. Wherefore, the respondents pray that they may be set free, as they of fight are and ought to be, and that they be released from the custody of the marshal, under the process of this honourable Court, under which, or under colour of which they are holden as aforesaid.40 U.S. at 526-27.
23. The Amistad Circuit Court Trial, N.Y. Comm. Advertiser, Sept. 23, 1839 [hereinafter cited as Circuit Court Trial]
24. Jones, supra note 4, at 64.
25. Circuit Court Trial, supra note 23.
26. Treaty of Peace and Amity Between His Bfitannic Majesty and the United States of Amefica, Dec. 24, 1814, U.S.-Gr. Brit., 8 Stat. 218.
27. 23 U.S. (10 Wheat.) 66 (1825) (deciding that a foreign slaving vessel captured in peacetime had to be restored to her flag state if slaving was not contrary to the laws of that country).
28. Jones, supra. note 4, at 64, 71-72, 74, 76-77.
29. Id. at 100.
30. Id. at 102. The
testimony of Fordham was reported in several papers,
including the Charleston Courier, Nov. 26, 1839:
31. Jones, supra note 4, at 102-03.
32. Id. at 103-04.
33. Id. at 104-10.
34. Id. at 119-24.
35. Id. at 128.
36. 16 U.S. (3 Wheat.) 336, 341 (1818).
37. Jones, supra note 4, at 129.
38. Id. at 129-30.
39. Id. at 130-31.
40. Id. at 141-42.
41. 40 U.S. at 547. Gilpin's argument is summarized id. at 539-49.
42. Baldwin's argument is summarized id. at 549-66.
43. For a further discussion of Adams' argument, see infra note 51 and accompanying text.
45. 40U.S. at 593.
46. Id. at 594.
47. Id. at 597.
49. 60 U.S. (19 How.) 393 (1857).
50. The opinion of Justice Story makes clear that had the sale of the Africans in Havana been legal, they would have had no choice but to allow their return to Cuba:
If these negroes were, at the time, lawfully held as slaves under the laws of Spain, and recognised by those laws as property capable of being lawfully bought and sold; we see no reason why they may not justly be deemed within the intent of the treaty, to be included under the denomination of merchandise, and, as such, ought to be restored to their claimants [Ruiz and Montes]....40 U.S. at 593. The Court also suggested at least mild disapproval of the Africans' action in seizing control of the schooner: "We may lament the dreadful acts, by which they asserted their liberty, and took possession of the Amistad, and endeavoured to regain their native country; but they cannot be deemed pirates or robbers in the sense of the law of nations Id. at 593-94.
51. Id. at 566. Subsequently, however, Adams' speech was privately published as a 135-page monograph.
52. Guthmann, Middling Passage, S.F. Chron., Dec. 12, 1997, at C I.
53. Wuntch, Amistad: Shot at Another Masterpiece Misfires, Dallas Morning News, Dec. 12, 1997, at IC; Rosen, "Amistad" Unflinching Look at Slavery's Horrors, Denver Post, Dec. 12,1997, at Fl; Maslin, Pain of Captivity Made Starkly Real, N.Y. Times, Dec. 10, 1997, at E2.
Not that everyone was critical. Rita Kempley of the Washington Post said that the movie was "powerful" and demonstrated Spielberg's "flair for bringing lost worlds alive." Kempley, "Amistad": History Unshackled, Wash. Post, Dec. 12, 1997, at Cl. Stanley Kauffmann, the film critic for the New Republic, found "Amistad" an "engrossing" film that revealed "a vital filmmaking talent ... striking toward the truth.... While it's in progress [the movie] envelops us; paradoxically, when it's finished, it seems to stand free, like a strong sculpture." Kauffmann, Of Human Bondage, New Republic, Dec. 22, 1997, at 24.
54. 163 U.S. 537 (1896).
55. 347 U.S. 483 (1954).
56. Wyatt-Brown, supra note 12, at 118, 220. An essay (by the present author) on Lewis Tappan and his role in the Amistad case can be found at http://www.law.umkc.edu/faculty/projects