John ^itams
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ARGUMENT
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.
WITH A REVIEW OF THE CASE OF THE ANTELOPE,
EEFORTED IN THE IOtH, IItH AND 12th VOLUMES OF WHEATON'S REPORTS.
NEW YORK:
W. BENEDICT, 128 FULTON STREET.
t/
ARGUMENT
JOHN QUINCY ADAMS,
May it please your Honors —
In rising to address this Court as one of its attorneys and coun-
sellors, 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 infirmities of age and the inexperience
of youth, than to render those services to the individuals whose lives
and liberties are at 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 argu-
ment 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 man-
ner as leaves me scarcely anything to say, and I feel that such
full justice has been done to their interests, that any fault or im-
perfection 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 i». Justice, as de-
4
fined in the Institutes of Justinian, nearly 2000 years ago, and as
it is felt and understood by all who understand human relations
and human rights, is —
" Constans et perpetua voluntas, jus sxtcjjm cuique tribuendi."
" The constant and perpetual will to secure to every one his ovs^n 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, be-
cause 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 individu--
als, but will act on the consideration that the life and the liberty
of every one of them must be determined by its decision for him-
self 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 mem-
bers 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, un-
der the array of the whole Executive power of this nation against
thera, 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 motion to
dismiss the appeal, 1 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 w.as 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 gives vent to his long suppressed resentments
for the insolence and injuries which he had endured from the fall^
en favorite while in power, and breaks out inta insulting and bit-
ter reproaches, till checked by the Chamberlain, who says;
" Oh ! my Lords ;
Press not a /flZZm^ 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 chan^
ges of my life, and which I trust I shall carry with me to my
grave.
It is, therefore, peculiarly painful to me, under present circum-
stances, to be under the necessity of arraigning before this Court
and before the civilized world, the course of the existing Admin-
istration 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
had 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 defen-
sive of the rights of my clients, I now proceed to an examination of
6
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 administra-
tion 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, [Document H. R. N. S. 185,] 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 with-
out 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.
maUer, 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.''^
[pp. 29, 30.]
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 1 No. It was not so considered by Mr. For-
syth himself. It was sympathy, and he so calls it, for in the pre-
ceding page of the same letter referring to the proceedings of
this Government from the very first intervention of Lieut. Ged-
ney, he says :
" Messrs. Ruiz and Montes were first found near the coast of
the United States, deprived of their property and of their free-
dom, suffering from lawless violence in their persons, and in im-
minent and constant danger of being deprived of their lives also.
They were found in this distressing and perilous situation by offi-
cers of the United States, who, moved towards them hy sympa*
thetic feeling which subsequently became as it were national, imme-
diately^rescued them from personal danger, restored them to free-
dom, secured their oppressors that they might abide the conse-
quences of the acts of violence perpetrated upon them, and placed
under the safeguard of the laws all the property which they claim-
ed as their own, to remain in safety until the competent authori-
ty could examine their title to it, and pronounce upon the ques-
tion 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 declar-
ed 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 re-
proaches of the Spanish minister ! I cannot urge the same ob-
jection 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 slave-traders, and against
these poor, unfortunate, helpless, f ongueless, defenceless t Afri-
cans, was the cause and foundation and motive of all these pro-
ceedings, 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 seiz-
ure of the vessel, with the arrest and examination of th^ Africans,
was intended for inquiry, and to lead to an investigation of the
rights of all parties. This investigation has ultimated in the de-
cision 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 ac-
cordance with the impulses of sympathy, and that consequently
the sympathy was wrong before. And consequently it now ap-
pears that everything which has flowed from this mistaken or mis-
applied sympathy, was wrong from the beginning.
8
For I inquire by what right, all this sympathy, from Lieut. Ged-
ney 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
ihtir lawless violence % By Avhat right was it denied to the men
who had restored themselves to freedom, and secured their op-
pressors to abide the consequences of the acts of violence perpe-
trated 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 law-
less, 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 Xhot 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 ju-
dicial proceedings until then : the very language of the Secretary
of State in this letter breathes the same spirit as animating the
executive administration, and has continued to govern all its pro-
ceediugs on this subject to the present day. It is but too true
that the same spirit of sympathy and antipathy has nearly per-
vaded 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 tri-
als, 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 Execu-
tive or the Judiciary, except that law, (pointing to the copy of the
Declaration of Independence, hanging against one of the pillars
of the court-room,) 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 provid-
ed 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 Sec-
retary 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, [Doc. 179. 12 Feb. 1841,] the
minister refers with great apparent satisfaction to certain resolu-
tions 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 belong-
ing 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 circum-
stances."
Without entering into any discussion as to the correctness of
these principles, let us admit them to be true to their fullest ex-
tent, and what is their application to the case of the Amistad 1 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
personsfrom imprisonment. Chevalier d' Argaiz, therefore, totally
10
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 cause of Montes and Euiz, 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 had acquired the right and so far as their knowledge ex-
tended 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 enti-
tled to all the provisions of the law of nations, and the protec-
tion and comfort which the laws of that State secure to every hu-
man 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 % 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 ofa 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. Ged.
ney, 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
11
part of the United States are all wrongful from the beffinning.
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 cus-
tody 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 j
it is easy to understand in what " other way" he wished them
disposed of. And he closes by saying — " should you have any
instructions to give on the subject, I should like 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 offence
these people may have committed, as it was done on board a ves-
sel 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 j
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
he 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
12
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 be-
come 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 of 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 Ma»
jesty, 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 ves»
sel, cargo, or slaves beyond the control of the Federal Execu'
live.
" 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 no»
vels, 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 the thing that is not." It is not possible
for me to express the truth respecting this averment of the Secre-
tary of State, but by declaring that he " has said the thing that is
not." This I shall endeavor to prove by showing what the de-
mand of the Spanish minister was, and that it was a totally differ-
ent 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 proceed-
ing of your Circuit Court, or of any other judicial tribunal, places
13
the vessel, cargo, or slaves beyond the control of the Federal
Executive."' Here is a ministerial officer of the Executive Gov=
ernment, 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 if? In what manner was an Executive officer
to proceed, so that neither the Circuit Court of the Uniled 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 de-
mand.
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. 1 wish therefore to
say nothing respecting him that is personally disrespectful or un~
kind. 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: —
"Nkw York, Sept. 6, 1839.
"The undersigned, envoy extraordinary and minister plenipo=
tentiary 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 occur-
rence 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 2Sth of June, bound to
Guanaja, in the vicinity of Porto Principe, under the command of
her owner, Don Ramon Ferrer, laden Avith sundry merchandise,
and with fifty-three negro slaves on board ; and, previous to her
departure, she obtained her clearance (alijo) from the custom
14
house, the necessary permit from the authorities for the transpor-
tation of the negroes, a passport, and all the other documents re-
quired by the laws of Spain for navigating a vessel and for prov-
ing ownership of property ; a circumstance particularly important
in the opinion of the undersigned."'
Here your Honors will observe the same distinction of " mer-
chandise and negroes," which was made by the District Attorney?
showing the universal sense of the difference between merchan-
dise and persons. He goes on :
" During the night of the 30th of said month, or about day-
break 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 ill-treating and wounding them, namely, Don
Jose Ruiz and Don Pedro Montes : of whom the former was
owner of forty-nine 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 know-
ledge of nautical affiiirs, 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 brig-of-war
' Washington,' Captain Gedney, who, on learning the circum-
stances 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 com-
plete, 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 violat-
ed laws of the country of which they are subjects. The under-
signed is willing to believe that such would have been the case.
15
had the general government been able to interpose its authoritj' in
the first instance, as it has probably done during the short interval
between the occurrence of this affair and the period when the un-
dersigned 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 sup-
poses the President of the United States to possess what we un-
derstand by arbitrary power — the power to decide cases and
to dispose of persons and of property, mero motu, at his own dis-
cretion, 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 Couri, — the U. S, Dis-
trict 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 spe-
cifications, any one demand that corresponds with that which the
Secretary of State avers 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 cap-
ture by the Washington, without any payment being exacted on
the score of salvage, or any charges made, other than those spe-
cified 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 penal-
ties upon, the subjects of Spain, for crimes committed on board a
Spanish vessel, and in the waters of the Spanish territory."
16
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 ne-
groes should be delivered up as Spanish property 1 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
they 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 Unit-
ed 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 govern-
ment, 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 lives ! Where in the law of nations
is there a warrant for such a demand 1
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 seas 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 send them beyond seas for trial, he could do
17
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 fo-
reign minister, and send themheyond seas for trial before a foreign
court. The Spanish minister farther demands —
" 4th. That if, in consequence of the intervention of the autho-
rities of Connecticut, there should be any delay in the desired
delivery of the vessel and the slaves, the owners both of the for-
mer 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 pro-
perty. 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 de-
livered 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 Min-
ister 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
3
18
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. For-
syth 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 conside-
ration."
This is what the logicians call argumentum ad hominem — an ap-
peal, 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 stipula-
tions 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.
" AuT. 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
rep.ted with all humanity, and enjoy all favor, protection, and
help ; and they shall be permitted to refresh and provide them-
selves, 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 noways 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 hin-
drance."
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 j'ou 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
could not claim the benefit of this article. The vessel either be
19
longed to the Africans, in whose possession it was found, and who
certainly had what is everywhere the first evidence of property,
or there was no person to whom this article could apply, and it
was not casus fcederis. The truth is, this article was not intended
to apply to such a case as this, hut 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 Lom-
boko, 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 offence.
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 Unit-
ed 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 1 Why, that he might repair his ship, and
purchase refreshments, and continue his voyage. Ruiz and Mon.
tes 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 Spaniardg
as their prisoners, or their slaves, as the case might be ; the ne,
groes as masters of the ship, to continue iheir 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
20
United States are now bound to restore the ship to the Africans,
nnd replace the Spaniards on board as prisoners. But the article
is not applicable at all. It is not a casus fcederis. 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 soever,
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 pro-
prietor, as soon as due and sufficient proof shall be made con=
cerning 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 hap-
pened on board the vessel. They have then no right to regard
those who forcibly took possession of the vessel as pirates and
rabbers. 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 1
When they were brought from Lomboko, in the Tecora, against
the laws of Spain, against the laws of the Unite-d 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 pi-
rates 1 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 treat-
ment, were ^hey the pirates and robbers 1 This honorable Court
will observe from ihe record that there were fifty-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 seven-
teen days — and three more between that and November. Sixteen*
21
fell victims before November, and from that time not one iias
died. Think only of the relief and benefit of being restored to
the absolute vi^ants of human nature. Although placed in a con-
dition which, if applied to forty citizens of the United States, we
should call cruel, shut up eighteen months in a prison, and enjoy-
ing 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 recov-
ered 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 1 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 to-morrow !"
Who, then, are the tyrants and oppressors against whom our
laws are invoked 1 Who are the innocent sufferers, for whom we
are called upon to protect this ship against enemies and robbers %
Certainly not Ruiz and Monies.
But, independently of this consideration, the article cannot ap-
ply to slaves. It says ships and merchandise. Is that language
applicable to human beings 1 Will this Court so affirm % It says
they shall be restored entire. Is it a treaty between cannibal na-
tions, that a stipulation is needed for the restoration of merchan-
dise entire, to prevent parties from cutting off the legs and arms
of human beings before they are delivered up 1 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 provis-
ion for their subsistence until they are restored, and an indemni-
fication 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 pre-
vent 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, 1 will speak of rhy 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.
22
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 re-
ceive, as well for themselves as for their vessels and effects, the
same assistance which would be due to the inhabitants of the coun-
try 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 du-
ties, charges, or fees, on the part which they shall relade and
carry away."
This article, again, has nothing to do with the case. The
Amistad was neither wrecked nor foundered, nor otherwise da-
maged. She came into our waters voluntarily, so far as the Span-
iards were concerned, but involuntarily, so far as concerned the
Africans, who were in possession of the vessel. They were in-
tentionally prosecuting a voyage to Africa, but were brought to
our shores by deception, and against their wills. This is not casus
fcederis. The treaty has no application here. But if, by any lati-
tude 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 circum-
stances. 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 Avasa Balti-
more clipper, fitted for the African slave trade, and having per-
formed a voyage, had come back to our shores, directly or indi
rectly, with fifty-four 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 cap-
• tain 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 offence for the
captain, and no appeal to this Court would save him from the gib-
bet. Is that the assistance which the Spanish minister invokes for
Ruiz and Monies? That is what our laws would secure to our
own citizens in like circumstances. And perhaps it would be a
23
reward nearer their merits than the restoration of these poor ne-
groes 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 1 According to the construction of the
Spanish minister, the merchandise were the robbers, and the rob-
bers 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 'i 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 rob-
bers, out of whose hands they have themselves been rescued 1
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 war-
rant for bis demand, than he has for relying on the law of nations.
The next argument that follows is so peculiar that I find it diffi-
cult to give a distinct idea of its pupose or application. He
says,
" The crime in question is one of those which, if permitted to
pass unpunished, would endanger the internal tranquillity 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 Afri-
can slaves. These, on learning that the crime alluded to had been
committed with impunity, (and their friends would not fail to ac-
quaint them with the fact) would lose none of the opportunities
for attempting revolt and evasion, which are afforded by the fre-
quent 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 argu-
ment 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 la-
bor of slaves. They own their plantations and slaves there, sub-
ject 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 be-
tween parties, upon considerations of the eflect 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 sympa-
thy 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 regard to certain interests nearer home. But
was that JUSTICE ? Was that a ground on which courts of jus-
tice will decide cases'? I trust not.
There are a few portions of this letter, which I had rather your
Honors w;ould read when you are together in consultation, than to
read them myself in this place. I will not trust myself to com-
ment 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 in-
competent tribunal that has taken upon itself to try them as pi-
rates 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, name-
ly, to prevent the commission of similiar offences. 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
25
was to issue his lettre de cachet^ and send these unfortunate indi-
viduals to Cuba. I abstain now from reading the subsequent pas-
sages.* He concludes by saying,
" In the islands above mentioned the citizens of the United
States have always met with a favorable reception and kind treat-
ment. The Spanish Government, for the protection of their pro-
perty, 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 is to
he determined 1 Shall these men be given up on the offer of an
equivalent"? " If you will deliver these Africans to me, for whose
* Mr. Adams' forbearance will hardly be appreciated unless it is known what
it was that he omitted to read. That portion of the letter of Mr. Calderon is
therefore appended to this note.
I "The dread of a repetition of these acts might be expected to take possession of
the minds of the people residing in the islands of Cuba and Porto-Rico ; and, in
lieu of the harmony and good feeling subsisting between them and the citizens of
the United States, it would not be surprising, nor would it afford a cause for com-
plaint, if sentiments were awakened of a different nature, and highly prejudicial to
the interests of both parties. How can the man who promotes or advocates dis-
cord in families expect to be regarded with benevolence ? or how can he who acts
in such a manner pretend to the title of friend ?
" The undersigned does not apprehend that the fears herein expressed by him wilt
be deemed exaggerated or unfounded. No one is ignorant of the existence of a
considerable number of persons who, prompted by a zeal which it does not belong
to him to qualify, are employing all the means which knowledge and wealth can
afford for effecting, at any price, the emancipation of the slaves. Many of them,
either because they are persuaded of the philanthropy of their designs, or assuming
this virtue as a cloak, have no hesitation in repaying the hospitality they receive
by the seduction of the slaves of their host, e.specially if they are skilful in any
trade.
" Having'induced them to abandon their masters, they ship them onboard some
vessel, where they retain them- in a worse state of captivity than before, or send
them to the United States to be set at liberty; thus appropriating to themselves the
property of another, and deliberately committing a theft, while, perhaps, they be-
il6
blood all the slave-traders of Cuba thirst, and anjr slave from the
south shall make his escape and come to Cuba, we will readily de^
liver him up." What is this argument as addressed to the Secre-
tary of State 1 It may be a very easy thing for the Governor at
Havana to seize a fugitive southern flave, 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 stipula-
tions 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 Presi-
dent will consent to deliver up these men, by a despotic act, to sa-
tiate the vengeance of the slave-traders at Havana.
I have now, may it please the Court, examined at great lengthy
and with tedious detail, the letter of ihe Spanish minister, demand-
ing 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
lleve that they are performing a meritorious act. In the meantime, the only-
resource of the ruined Spanish proprietor is to apply, at an enormous expense, to
the tribunals of a fore'gn country, where in many places public opinion throws in
the way of the applicant for justice, in matters of this nature, insuperable obstacles.
Of the many cases tliat might be referred to, in proof of the justice of this re-
mark, one is that of John Smith, mate of the brig Swiftsure, who concealed and
brought away with liim a negro who was cook in a hotel where he was stayirlg ;
upon which subject the undersigned wrote to the Secretary of State on the 19th
of November, 183G, and now addresses him again in a separate communication.
That the fears of the undersigned arc not without foundation, is also evident from
the excitement which this occurrence has produced in the public mind, from the
language used by some of the public papers in relating it, and from the exertions
that many persons have commenced making in favor of the revolted slaves of the
• Amistad,' for whose defence they have engaged some of the most able counsel-
lors of Boston, Now Haven and New York."
27
Secretary of State, on receiving such a letter. And in the first
place, what did he do 1
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 or-
dering him to take care that no court should place them beyond
the control of the Executive. That is what he did. And the con-
sequence 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 undoubt-
edly 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 1 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 Represent-
atives, 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 with-
drawn,]
28
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 a 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 falsi-
fication 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 Afri«.
ca — 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 ladino 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 ap„
peal 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, I 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 I 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 case.
■And now, may it please your Honors, so strange and singular is
every thing that happens, connected Avith this most singular case,
29
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 an-
swer 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 de.
mands 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 Span-
ish minister should have been told that it was a question depends
ing exclusively on the determination of the courts, before whom
the case was pending for trial according to law. And the Secre-
tary ought 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 con-
stitution. It would be the assumption of a control over the judi-
ciary by the President, which would overthrow the whole fabric
of the constitution ; it would violate the principles of our govern-
ment 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 inadmissi-
ble with the rest ; the President has no power to arrest either citi-
zens 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 de-
mand was treating the President of the United States, not as the
30
head of a nation, but as a constable, a catchpole — a character that
it is not possible to express in gentlemanly language. That is
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 pen-
ding. 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
communicaiing to you his views upon the subject."
And now, from that day to this, the Secretarj'- 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 aginst 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 pro-
nounced the Court before which the Secretary brought the ques-
tion, an incompetent tribunal — and this position has been main-
tained by the Legation of Spain down to this very month, that a
letter of Chevalier d'Argaiz officially protests against the jurisdic
tion 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 1 It is because they were not met in limine in a
proper manner — because he was not told instantly, without the
31
delay of an hour, that this Government could never admit such
claims, and w^ould be offended if they were repeated, or any por-
tion of them. Yet all these claims, monstrous, absurd and inad-
missible as ihey 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 commu-
nication has been addressed to this department by the Minister of
Her Catholic Majesty, claiming the vessel, cakg-o, 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 pro
ceedings of the court of inquiry held by a district judge of Con-
necticut, on board the schooner, at the time the negroes in whose
possession she was found, were imprisoned for the alledged mur-
der 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 in-
formed, 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 Dis-
32
trict 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 deter-
mination 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 :
New- York, October 3, 1839.
The undersigned, envoy extraordinary and minister plenipoten-
tiary of Her Catholic Majesty, has the honor of commencing his
official correspondence with you, sir, by soliciting an act of jus-
tice, 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 circum-
stance that all preceding acts of the department under your
charge have been dictated by the principles of rectitude and
reciprocity.
Her Majesty's vice-consul at Boston, under date of the 24th of
September last, says, among other things :
" A.S 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 mis-trans-
lation ; 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.
33
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 2-ith of October, the Secretary of State wrote again to
Mr. Argaiz, on another subject, which is not now before this
^ourt,-^-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 Secre-
tary 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 cer-
tain colored men, natives of Africa, for the purpose of securing
their appearance before the proper tribunal, to answer for wrongs
alledged to have been inflicted by them upon the persons of the
said Africans 5 and, consequently, that the occurrence constitutes
a simple case of resort by individuals against others to the judi-
cial 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 re-
dress for the wrong alledged 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 Pre-
sident, to whom the Chevalier d'Argaiz's note has been commu-
nicated, has instructed the undersigned to state, that the agency
of this government to obtain the release of Messrs. Ruiz and Mon-
tes 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 in-
demnity to which they maybe 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 Mon-
ies 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 ^ut 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 be-
tween 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 com-
munication with those gentlemen, to offer them his advice (and
his aid, if necessary) as to any measure which it may be pro-
per for them to adopt to procure their release, and such indemnity
as may be due to them, under our laws, for their arrest and deten-
tion."
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 deci-
sion 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 ef-
fect 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
35
"its effects on the rights of the people of the United States. I
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 inter-
fere ; 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, acknow-
ledging the receipt of Mr. Forsyth's letter, inclosing the instruc-
tions of the Attorney of the United States for the District of New
York, " that he should offer to these persons his advice and as-
sistance, if needed, with regard to the most proper means of ob-
taining their liberty." He says :
" Although this answer did not entirely satisfy the desire ex-
pressed by the undersigned in the note of October 2"2d, to which
he was impelled by the sense of his duty, and by the terms of ex-
isting 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 thanks, 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 29ih ultimo, the Attorney of the United States, with whom
he had a long conversation, which left him delighted with the af-
fability 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
36
waiting the determination of the court or courts, against the juris-
diction of which the undersigned had already especially pro-
tested."
The Spanish ambassador was not satisfied with the letter, and
and yet he received it with pleasure, " because he saw that the
Secretary did not refuse to admit his reasons.'^ How is that 1
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 vir-
tual admission of his " reasons." Why should he not so construe
it 1 Here is also a renewal of the protest, which has uniform.ly
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 de-
mand 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 j 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 con-
fidential 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 inter-
pose its authority to put down the irregularity of these proceed-
ings, which the court is not competent to perform '? It seems im-
possible that there should be no such power ; but unfortunately
there is none>
37
"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, declar-
ing this government responsible for the consequences which may
grow out of this affair ; and he asks the Secretary of State whe*
ther or not he possesses sufficient authority and force to carry
into fulfilment the treaty of 1795. If he has not, then there can
be no treaty binding on the other party."
He thinks it impossible there should not be a power in the Fe-
deral Government to put down these proceedings of the courts,
but he admits that unfortunately there is ho 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 con-
sequences, for if it has not power to fulfil the treaty, no treaty is
binding on either party. ^
On the 'i6th 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 for-
mer complaints.
" To the first complaint, made by his predecessor, on the 6th
September last, nothing more than an acknowledgment of its re-
ceipt was thought necessary, which was made on the l6th of the
same month. In the answers which the Secretary was 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 arguments advanced. Those 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 to 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 easel 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 Secreta-
ry 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 poste-
38
rior 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 de-
cided by the common law, but by the international law."
That is to say, the treaty stipulation has talcen 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 answer-
ing it? The ambassador proceeds to urge that "if the General
Government of the Union had decided this matter of itself, guher-
nativamente''' — here is a word, used several times in this corres-
pondence, that no American translator has been able to translate
into our language. It means, by the simple will or absolute j^a^
of the Executive, as in the case of the leitres de cachet — or a war-
rant for the BASTILE — that is what the Spaniard means by gu-
bernativamenie, 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 Em-
pire allow a proceeding like this"? Is the Khan of Tartary pos-
sessed of a power competent to meet demands like these ? I
know not where on the globe we should look for any such authori-
ty, 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 lamenta-
ble. Surely, this is a complaint to be made to the Secretary of
39
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 Span=
ish 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 contra-
diction.
The Constitution of the United States recognizes the slaves,
held within some of the States of the Union, only in their capa-
city 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 re-
cognizes 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 de-
cently 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 lAvith 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 whole correspondence
between the Spanish ministers and our Department of State, con-
cerning the surrender oi these' most unfortunate persons, this
broad distinction appears to have been entirely and astonishingly
overlooked, not only by the Spanish ministers, but by the Secre-
tary 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 own=
ers, Ruiz and Monies, 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
40
merchandise, but as men — as infant females, with flesh, and blood,
and nerves, and sinews, to be tortured, and with lives to be for-
feited and consumed by fire, to appease the public vengeance of
the lawless slave-traders in Cuba 1
Mr. Forsyth, by a most unaccountable oversight of this distinc-
tion 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 BLACKS on board, as Spanish property, and demanding
its immediate release.
The District Attorney, on the 19th of September, files, accord-
ingly, his libels, (Record, p. 13,) stating the demand of the Span-
ish 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 invi-
olate.
But if it should be made to appear that the persons aforesaid,
described as slaves, arelnegroes and persons of color, who have
been transported from Africa in violation of the laws of the Unit-
ed 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 expedi->
ent, 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 stipu-
lations, 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 per-
sons. Of them, he had demanded, by necessary implication, that
41
sThey should not be restored to their pretended owners, but kept
in close custody, and, in defiance of all judicial authority, con-
veyed to the Havana Governraentally, 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 alter-
native 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 expc'
dient ; and to this the decree of the Court said, soitfait comme il
est desir^ — be it as the District Attorney desires. Let the said
Africans, in the custody of the Marshal, be delivered to the Presi-
dent of the United States by the Marshal of the District of Con-
necticut, to be by him transported to Africa, in pursuance of the
law of Congress passed March 3, 1829, entitled " An act in addi-
tion to the acts prohibiting the slave-trade."
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 ap-
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 own-
ers, for against that the Spanish minister solemnly protests ! He
demands not even that thej'- 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 Ex-
ecutive Administration — (will the Court please to consider what
the purport of this demand is X) — that the President of the Unit-
ed States should issue a 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 SpanishVessel,
and in the waters of the Spanish territory.
When this demand was made, the Africans of the Arnistad were
in the custody of a judicial tribunal of the United States, upon
42
proceedings instituted against them as criminals charged with pi«
racy 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 insti'
tute proceedings against the subjects of Spain for crimes commit-
ted on board a Spanish vessel and in the waters of the Spanish
territory, how could the Court know that these same Spanish sub-
jects 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 pi-
rates 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 cou'
struedto 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 he taken care of ^ but, by what
Constitution or law of the United States, or of Connecticut, could
the officers of the port of New London receive into their custo-
dy, and take care of, the Africans of the Amistad 1
The demand of the Spanish minister, Calderon, was, that the
President of the United States should first turn man-robber ; res-
cue from the custody of the Court, to which they had been com-
43
mitted, 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 1 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 stipu-
lation, 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 1 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 Execu-
tive 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 1
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 iu 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 ap-
peal from that decision by stating that Antonio himself desired to
44
be restored to his widowed mistress. But as the whole decree
was the result of a deception practised 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 be
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 objec-
tions to the admission of the case of the Antelope as an authorita-
tive 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 resist-
ing 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 v/as 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 despot-
ism 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 Secreta-
ry of State — not property but assassins — not for the benefit of in-
dividuals, 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
* It is proper to append this part of the letter, tliat the allusion may be under-
stood by the reader, as it doubtless was by the Court. — Reporter.
"Very different, however, have been the results ; for, in the first place the trea-
ty of 1795 has not been executed, as the legation of her Catholic Majesty has so-
licited ; and the public vengeance has not been satisfied ; for be it recollected that
the legation of Spain does not demand the delivery of slaves, but of assassins.
Secondly, great injury has been done to the owners; not the least being the im-
priBonment which Don Jose Ruiz is now undergoing, notwithstanding the com-
4.5
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 con-
federacy has assumed the direction of an affair over which it has
no jurisdiction; that there can be no law, either anterior or pos-
terior 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 indemnifica-
tion, to demand which the undersigned reserves his right for a fu-
ture occasion. The undersigned may, without indiscretion,
declare that this must be the opinion of the cabinet, which, pos-
sessing 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 ex-
planations with regard to reciprocity in the execution and fulfil-
ment of treaties."
Here it is. " Gubernativamente" again ; that is the idea which
was in the mind of the Spanish minister all the while, gubernativa-
mente. 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 recip-
plainta made on that subject, which, if not entirely disregarded, have at least not
produced the favorable results vphich might have been expected ; and the dignity
of the Spanish nation has thus been offended. With respect to which injuries, the
undersigned vpill, on a proper occasion, use his right; although no indemnification
can fully recompense for the evils, physical and moral, which the persecutions and
vexations occasioned by fanaticism may cause to an honorable man,"
46
rocity in the execution &nd fulfilment of treaties." Is that lan-
guage for a foreign minister to use to the American Secretary of
State, and not to be answered 1 He then says :
" The undersigned flatters himself with the hope that his Excel-
lency the President will take into his high consideration this com-
munication, to which the undersigned hopes for a speedy answer,
as a new proof of the scrupulousness and respect with which this
nation fulfils the treaties existing with other nations. If, contrary
to this hope, the decision should not be such as the undersigned
asks, he can only declar.e the General Government of the Union re-
sponsible for all and every consequence which the delay may pro-
duce." .
There is the language used by the representative of her Catho-
lic 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 doc-
uments 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 interfer-
ence 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 abandon-
ment of the trade, it is " moved to take a special and peculiar in-
terest 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 cir-
cumstances 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 pass-
ed, prohibiting the continuance of the African slave trade by
Spanish subjects.
" It is under these circumstances that Her Majesty's Govern-
ment anxiously hope that the President of the United States will
find himself empowered to take such measures in behalf of the
4?
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 Majes-
ty'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. Fox 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 impu-
tations 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 guberna-
tivamente, 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 en-
titled-" To this the Secretary of State replies :
" Viewing this communication as an evidence of the benevo-
lence 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 narra-
tive presented therein, of the circumstances vi^hich 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 sub-
ject 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 legal tribunals vjhen
acting within their own appropriate jurisdiction.^^
How sensitive the Secretary is now ! How quick to perceive
an impropriety ! How alive to the honor of the coui^ry — much
48
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 de-
mands 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 de-
monstration 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 is re-
ceived 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 argu-
ments urged by Mr. Argaiz ; but repeats that they had been sub-
mitted to the President for consideration. And that is all the
answer ever given to the Spanish legation. He then refers to va-
rious 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 depart-
ment, on the same subject, he would have discovered additional
evidence of the desire of the United States Government to do jus-
tice 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 offer 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 sug.
gestions, which the undersigned does not perceive the utility of com.
hating 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 have been said which per-
49
haps 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 evi-
dent 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 de-
mands 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 ac-
curate conception of the true character of the question, nor of the
rules by which, under the constitutional institutions of the coun-
try, the examination of it must be conducted ; nor a correct ap-
preciation of the friendly disposition toward Her Catholic Majes-
ty's Government, with which that examination was so promptly
entered upon. In connection with one of the points in the Chev-
alier 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 or-
ganic 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 in-
dependent, it must have its course, and we cannot help it. He
proceeds :
" As to the delay which has already attended, and still may at-
tend, 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
7
50
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 be 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 Chev-
alier 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 j that such delay is not uncom-
mon in the proceedings and deliberations of governments desi-
rous 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 occasion-
ed 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 misap-
prehended 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 sub-
jects of a foreign state, for which Mr. Ruiz is indebted to the de-
sire 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 alledged demands of
individuals against him or his property."
Here, tiien, it is avowed that the Executive government of this
nation had interposed in a suit between two parties, by extend-
ing 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
51
the national sympathy, in which all the authorities of the country
are alledged to haye 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 under-
signed. The delicacy of the undersigned does not, however, al-
low him to pass over (desoir) certain insinuations (remarks) con-
tained in the said note ; and it will, perhaps, be difficult for him
to avoid adducing some new argument in support of his de-
mands."
The Secretary had never met these claims and arguments, as it
was his duty to do, and the Spanish minister is continually re-
minding 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 12fh, says, 'were found in this distressing and per-
ilous stuation by officers of the United States, who, moved by sym-
pathetic feelings, which subsequently became national,') had not
been the victims of an intrigue, as accurately shown by Mr. For-
syth, 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 in-
trigue." What the Secretary meant by '' victims of an intrigue,"is
Hot for me to say. These Spaniards had been sued in the courts
of the state of New York by some of my clients, for alledged
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 suits were commenced by lawyers of New
52
York — men of character in their profession. Possibly they ad-
vised 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 char-
acter, so far as concerns this case, and confining my remarks ex-
clusively 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 delivei'ance — 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 insti-
gators of " an intrigue" of which he holds these disappointed
slave-holders to be the unfortunate victims. The Chevalier goes
on :
''The Secretary of State, however, says that 'he cannot but per-
ceive 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 le-
gal 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 examina-
tion 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 un-
dersio-ned does not comprehend the privilege enjoyed by negroes,
in favor of whom an interminable suit is commen(;ed, 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."
53 i
Here it is made the subject of complaint from a foreiga ambas-
sador 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 re-
ceived. And this complaint also was received without a reply.
The " English doctor," thus spoken of, was Doctor JMadden, a
man of letters, and in the official employ of the British Grovern-
ment, in a post of much importance and responsibility, ag the su-
perintendant of liberated Africans at Havana. His testimony
was highly important in the case and was admitted in tke court
below, and now forms a part of the record now before yourHonors.
He does not use the word bribery in reference to the Governor
General of Cuba.
DEATH OF JUDGE BARBOUR THE PROCEEDINGS OF THE COURT SUS-
PENDED.
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 argu-
ment of a counsellor 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 tliem to
breakfast. As 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 bed-clothes in the slightest degree disturb-
ed, 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 court-room, which was already filled
with persons come to hear the continuation of Mr. /Adams' speech.
At lengtli the Judges came in together, and their countenances
looked pale, distressed, and sorrowful. As soon as they had taken
their setts, the Crier opened the Court in the usual form, and the
Chief Jistice addressed the gentlemen of the bar — " Gentlemen
a painfu^ event has occurred — Judge Barbour died suddenly last
night — £nd 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 assem-
bly vpitldrew.
I did not expect an announcement of so overwhelming a Pro-
vidence in a manner so severely simple and subdued, but it struck
me as eminently appropriate for the Supreme Court of this nation.
It was ii keeping with the strictest propriety and suitableness. It
was sublime.
RESUMPTION OF THE TRIAL.
Washington, March 1, 1841.
On the re-opening of the Court, the Attorney General of the Unit-
ed States, H. D. Gilpin, Esq. presented a series of appropriate re-
solutions in reference to the decease of Judge Barbour, which
had besn 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 coiTt. The Chief Justice responded in a short address, and
concluded with ordering the resolutions to be entered on the re-
cords. 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
re-stating the basis and aim of the argument which I am submit-
ting 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 rest-
ed 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
55
been the motive of its proceedings, but that they had been prompt-
ed by sympathy with one of the two parties 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 speak-
ing of the impulse of sympathies, under which the government
acted, I do not wish to be understood to speak of that sympa-
thy as being blameable in itself, or as inducing me to feel un-
friendly sentiments towards the Head of the Government, or the
Secretary of State, or any of the Cabinet. I feel no unkind sen-
timents 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 man-
ner, as affecting the claims of my clients to JUSTICE. My learn-
ed 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, I might be spar-
ed 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 right-
eous, 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 1 did not succeed, and now
I cannot do justice to my clients, whoso lives and liberties depend
on the decision of ihis Court — however painful it may be, to my-
self or others.
In my examination of the first proceedings of the Executive in
this case, I did scrutinize and analyze, most minutely and parti-
cularly, the^oMr 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 utter-
ly 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
56
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 com-
menced, 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 calum-
niates the Captain General of the island of Cuba, by charging him
with briberjr."
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 authori-
ties 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 Gov-
ernor 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 Secre-
tary 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 govern-
ment to call upon the government of her Catholic Majesty to
issue, with as little delay as possible, strict orders to the authori-
ties of Cuba, that, if the request of the Spanish minister at Wash-
ington 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
57
Majesty's government that the Government of her Catholic Ma-
jesty 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 sub-
jects 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 1 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 ano-
ther high authority, a book filled with valuable and authentic in-
formation on the subject of the slave trade, written by one of the
most distinguished philanthropists of Great Britain, Sir Thomas
Fowell Buxton, Mr. A. then read as follows : —
" It is scarcely practicable to ascertain the number of slaves im-
ported into Cuba : it can only be a calculation on, at best, doubt-
ful data. We are continually told by the Commissioners, that
difficulties are thrown in the way of obtaining correct informa-
tion 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 slave-trader ; 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 ves.
sels are permitted to purchase their liberation ; and it would seem
that the persons concerned in this trade have resolved upon set-
ting 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, dated 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 60,000 for the Havana alone j but is Ha-
58
vana 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 enter-
ed 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. Go Vega, Esq.,
Spanish consul, as near as 1 can now recollect, and according to
my best knowledge and belief, 10th 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 j 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 local 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 con-
sidered 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
visual form ; that it was not necessary to practice any fraud to ob-
59
tain 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.
Vega, and by him made a part of this case. This Spanish func-
tionary 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
practised 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 on
this subject, by our consul at Havana, which will be communicat-
ed to Congress for publication in a few days, and I can state fvom
my personal knowledge that it confirms every word of Dr. Mad-
den'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 un-
kindness towards him. And in examining his correspondence, al-
though it is my duty to show that his demands are utterly inad-
missible and unprecedented, yet it must be admitted that his
sympathy and partiality for his own countrymen are at least na-
tural 5 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 1 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 en-
tirely 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 Secre*
tary, that " whatever may be the final settlement of the question,
it will be in consequence of a decision emanating from the gov-
ernment, and not from any other source ^" and he adds, that '* h©
60
doubts not such decision will be conformable with the opinioH
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 cabi-
net."
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 circum-
stances 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 "joas 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, be-
cause the court of Connecticut has not declared whether or not it
is competent to try them. Tf 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 friend-
ly 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 argu-
ment be of any value to the Secretary of State of the Government
of the Union, the undersigned entreats him to prevail on the Pres-
61
ident to cause a protest, founded on this argument, to be official-
ly 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 pro-
test 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 Kuiz is known by the
name of Pipz, whereas he would have been known and distin-
guished throughout Spain, as all other Joses are, by the diminu=
tive 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 nine-and-forty persons with Spanish names, Avho 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-Govern-
ess 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 dis-
quiet 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 sq,iling for Havre on the 1st of
November next."
It must doubtless, said Mr. A*, be some consolation to this loy-
al 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 man-
ner. 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 ulimately turn out that the lives of
these poor Africans are saved, there will be no further occasion to
diminish the happiness of the august Queen-Governess.
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 Jan-
uary 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 necessa-
ry for the legation of her Catholic Majesty to take charge of them
as soon as the Court should have pronounced its sentence or re*
solution ; 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 en-
tirely without a crew :
" Considering that it would be difficult to find a vessel of the
United States willing to take charge of these negroes, and to
transport them to Havana ; and, also, that these negroes have de-
clared 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
63
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 gene^
rosity as a most particular favor, which would serve to strengthec
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 min.
ister 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 in-
stance of such a demand made upon an independent government!
I have never in the whole course of my life, in moderli 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 ease, to show what is to be the bearing of this proceeding
on the liberties of the people. I ask him to tell us what authori-
ty 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 AfricanSj which would not be equally
available, if any President thought proper to exercise it, to seize
and send off forty citizens of the IFnited States. Will he vin-
dicate such an authority 1 Will this Court give it a judicial
sanction?
But, may it please your Honors, what was the occasion, the
cause, the inotive, which induced the Secretary of State lo hold
64
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 Afri-
cans should be delivered up, and that our government would be
ready to deli/er them to him ! What induced the Secretary of
State to come to the conclusion that there was any sort of proba-
bility that the Court of Connecticut would so adjudge 1 The docu-
ments 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 Decem-
ber, " was duly received." Now, said Mr. Adams, it is a remark-
able 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 pre-
sumed, 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 ap-
plied to this department for the use of a 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
suorgestion, taken in connection with the request of the Spanish
minister, ordered a vessel to be in readiness to receive the ne-
groes from the custody of the marshal as soon as their delivery-
shall have been ordered by the court."
65
. Now, what coiild that suggestion have been 1 It will be remem-
bered that the Secretary of State had before directed the District
Attorney, Sept. 11, '• 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 Fede.
ral Executive.'''' The District Attorney had repeatedly inquired
of che 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 inti-
mation 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 war-
rant 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 coun-
try towards a fair and full investigation of all the circumstances j
and particularly of the allegations refei red to with regard to the
real condition of the negroes, has directed that Lieutenants Ged-
ney 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 j 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 men-
tioned order, you will cause to be prepared an authentic copy o»
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 b3 handed
over to the commander of the vessel which is to take out the ne-
groes, 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
66
Spanish minister, I have admitted that the principles which may
he 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 df 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 Mead^ 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 1
They could testify to nothing but the circumstances of the cap-
ture. 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, there-
fore, give the Executive credit for this sympathy towards the Af-
ricans. It was a mere pretence, 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 incontestible evidence of a 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 opin-
ion 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, 1 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, gubeYnativamente, by virtue of his Exe-
cutive authority — that inherent power which I suppose has been
discovered, by which the President, at his discretion, can seize
67
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 defence 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 au-
thorities of his country 5 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 th^ 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 Execu*
tive discretion ; but that, before the Government enforces the
demand of the Spanish claimant, that demand must be substan.
tiated 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 con.
firm this position.
" It will be 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 minis-
68
terial agents, without any of those safeguards which courts of jus-
tice 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 investiga-
tion of claims of this nature, and yet, assuredly, if the construc-
tion contended for be correct, such must be the result ; 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, ihe conduct of the affair must, of necessity, be
uncertain, vague, and not such as is calculated to inspire confi-
dence in the public or the parties. Vv^e can find nothing in the
treaty to warrant the delivery of these individuals as offenders 5
and the Executive of the Union has never thought itself obliged,
under the laws of nations, to accede to demands of this nature.
" These 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 5 orders
which have been repeated, at different times, to as late a date as
the 4th November, 1838, by which the trade is expressly prohibit"
ed ; 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
Monies, either directly from the slaver, or under circumstances
Avhich must, beyond doubt, have apprized 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 ille-
gally introduced into, the dependencies of a country which has
prohibited the slave trade, and who make the purchase with know-
ledge of this fact, can acquire no right. We put the matier on
the Spanish law ; and we affirm, that Messrs Ruiz and Montes
have no title, under that law, to these Africans
" If this be so, then these negroes have only obeyed the dictates
of self-defence. They have liberated themselves from illegal re-
69
straint ; 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 unfiiended 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 other-
wise.
'• 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. A., 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 con-
cerned 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 24.th of September, in which, by direction of the President, you
refer to ihis 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
70
counsel for the negroes taken on board the schooner Amistad, ad"
dressed to the President of the United States ; and asking my opi-
nion upon the different legal questions presented by these papers.
'' I have given to the subject all the consideration which its im-
portance demands ; and now present to you, and through you to
the President, the result of my reflections upon the whole sub-
ject.
" The following is the statement of facts contained in your
communication : The 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 pos-
session 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 course of steering at night,
to keep her on the coast of the United States ; that on seeing
land off New- York, they came to the coast, and some of the ne- '
groes 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 as-
sumption 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 negruos intending to carry
her to the coast of Africa," but " the Spaniards contrived, by
71
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 voy-
age 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 mu-
nicipal 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 m 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 du-
ties, 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 con-
fided 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. — Wheatori's
Elements of Internaiional Law, page 121 j Qth Peter^s, page 729."
There is the basis of his opinion j 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 whole argument
of the late Attorney-General. At a subsequent part of my argu-
ment I shall examine this document, and I undertake to show
7*2
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 a most unheard-of 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 cer-
tificate 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 Avorld, would no longer regulate and control the conduct of
7 CO
nations."
This principle of national comity^ I have no desirp 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 sub-
ject 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 coura«» of the American Govern-
73
ment on the subject of visitation and search would decide any
case in which that right had been exercised by an American crui-
ser, 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 deci-
sion 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 argu-
ment or opinion of the Attorney-General on which this whole pro-
ceeding 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 fa-
vor 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 exe-
cute the penal laws of another." 1 may ask, does any nation exe-
cute the slave laws of another country ? Is not the slave sys-
tem, the Code JSToir, 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
10
74
what authority will this court undertake to do this 1 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 posses-
sion 1 The captors in this case, are Gedney and Meade, the own-
ers are the Africans. The Attorney says,
" This vessel was not engaged in the slave trade ; she was em-
ployed 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 an-
other in our own country. I consider the facts as stated, so far
as this government is concerned, as establishing a right of owner-
ship to the negroes in question, in the persons in whose behalf
the minister of Spain has made a demand upon the government
of the XJ. 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 in-
tention was not accomplished until the slaves had reached their
final destination on the plantation. This is the principle univer-
sally applicable to coasting vessels. I say further, that the ob-
ject of Ruiz andMontes was illegal, it was apart of the voyage from
Lomboko, and when they fell into the hands of Lieutenant Ged-
ney, 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 took place on board of the ship. The late Attorney, how-
ever, comes to the conclusion that the courts of the United States
cannot proceed criminally against these people, that the provi-
sions of the Acts of Congress against the slave trade are not ap-
plicable 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 be-
fore said respecting the treaty. It can have no possible applica-
tion 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
75
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 re
ceive 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 Span-
ish 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 claimaints, 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 Secrelary of State told the Span-
ish 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 or-
der of the President, and sent beyond seas by his sole authority !
The Cabinet adopted that opinion ; why, then, did they not act
upon it 1 Why did not the President send his order to the Mar-
shal to seize these men, and ship them to Cuba, or deliver them
to the order of the Spanish Minister 1 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 particu-
lar course of proceeding, unprecedented among civilized coun.
76
tries, which was thus officially sanctioned, and yet the govern-
ment did not dare to do it. Why did they not do it 1 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 troops. — 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 minis-
ter says his government has no ship to receive these people, and
the President must therefore go further, and as he is responsible
for the safe-keeping and delivery of the men, he must not only de-
liver 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 Sec-
retary of State, of an agreement with Mr. Argaiz to send them to
Cuba in a public ship. Here is the memorandum of the Secreta-
ry of State to the Secretary of the Navy.
" Department of State, January 2, 1S40.
"The vessel destined to convey the negroes of the Amistad to
Cuba, to be ordered to anchor off the port of New Haven, Con-
necticut, 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 them-
selves in readiness to proceed in the same vessel, for the purpose
of affording their testimony in any proceedings that may be or-
dered by the authorities of Cuba in the matter.
" These orders should be given with special instructions that
ihey 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.
77
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 me-
morandum sent hy 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 proba-
bly be at the point designated a day or two before the 10th inst.,
and will there await her final instructions in regard to the ne-
groes."
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 re-
ceive 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 sin-
gular 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 Connec=
ticut will deliver over to Lieut. John S. Paine, of the United
States Navy, and aid in conveying on board the schooner Gram-
pus, 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."
78
That order is good for nothing at all. It did not even describe
the conrt correctly, under whose protection these unfortunate
people were. And on the 11th of January, the District Attorney
had to send a 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
oi Habeas Corpus, the Marshal could not justify under that war-
rant." 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 ap-
peal 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 r2th 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 of 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,
" John Forsyth.
"W. S. HoLABiRD, Esq.,
*' Attorney U. S.for Dist. of Conn ^
•79
Now, may it please your Honors, this corrected order, the
jinai order of the President of the United States, is not in evi-
dence, 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 draw-
ing 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 govern-
ment 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 aniicipated, 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 al-
low 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, con-
trary to all these anticipations of the Executive, decided that the
thirty-six negroes taken by Lieut. Gedney and brought before the
Court on the certificate of the Governor General of Cuba, were
FREEMEN ; ;hat 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 Pre
sident of the United States to be made, of the lives and liberty of
80
thirty-six 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 Depart-
ment had given a written opinion, that, at the instigation of a fo-
reign 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 1 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 1 Would it
not have been by the tenure of Executive discretion, caprice or
tyranny 1 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, (gubernaiivamente^) at the dictate of a foreign
minister, would it not have disabled forever the effective power of
the Habeas Corpus 1 Well was it for the country — well was it
for the President of the United States himself that he paused
before stepping over this Rubicon! — That 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 pub-
lic vengeance of the barracoon slave-traders. Had the unfortu-
nate 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 en-
dure the sight, of thirty-six free persons, though Africans, fettered
and manacled in iheir land of freedom, to be transported beyond
the seas, to perpetual hereditary servitude or to death, by the ser-
vile 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
81
Corpus, paramount even to the obsequiousness of a federal mar-
shal to an Executive mandate. The opinion of the Attorney Ge-
neral, 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 1 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 ope-
rations they might be choused oui of that right, the Circuit and
Supreme Courts ousted of their jurisdiction, and the hapless cap-
tives 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 maindeck, thirty-six persons
additional to the ship's company, was in the dead of winter, order-
ed 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 [7^o^u] 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 deci-
sion 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 pend-
ing; it carries out in form the whole idea of the Attorney Gene-
ral's opinion, that the President's order to the marshal is of itself
all sufficient to supersede the whole protective authority of the
LI,
82 ^
judiciary — and with this pretension on the face of the order, is
associated another, if possible still more outrageous upon every
security to personal liberty, in the direction to the marshal to de-
liver 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 suum ; and that no greater
violation of his official oath to protect and defend the Constitu-
tion 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 self-evident truth, inextinguishable till yonder gilt
framed Declarations of Independence shall perish in the general
conflagration of the great globe itself. I am constrained to be-
lieve— for to that ignorance, the only alternative to account for
this order to the Marshal of the District of Connecticut, is wilful
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 demon-
strate 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 entit-
led 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
83
to the satisfaction of the Circuit Court." 10 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 resort-
ed 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, Jus-
tice, and the Rights of human kind 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 al-
together 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 bur-
den as to be utterly unfit for the service upon which she was or-
dered. I now add that the gallant officer Avho 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 hu-
man 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 al-
most certain casualty if a storm should befal them on the passage
to Cuba, they must all inevitably perish. He remonstrated in
vain ! He was answered only by the mockery of an instruction,
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 j
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 Presi-
dent of the United States who signed, nor the Secretary of State
who transmitted the order knew, but both of them mistook the
84
court, before which the trial of the Africans was pending. They
supposed it was the Circuit, when in fact it was the District
Court.
The Grampus arrived at New Haven three days before the de-
cision 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 Brook-
Ijm, 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 1
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 ice-bound
shores of the northwest 1 These were questions necessarily oc-
curring 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 1 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 sub-
ordinate 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 des-
tination unavowed, was a very intelligble 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 intelligi-
ble to the political sympathies of a judge presumed to be congen-
ial 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 Afri-
cans to servitude and death in Cuba, would be as pliant to the
vengeful thirst of the barracoon slave-traders, 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 Ex-
ecutive warrant to the marshal for the delivery of the negroes, he
immediately perceived its nullity by the statement that they were
S5
in custody under a process from the " Circuit Court" and that
the same error had been committed in the instructions to the mar-
shal. " 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, I84i0. ■ 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. Mis-
givings were already entertained that the decision of the judge
might not be so complacent to the longings of the Executive de-
partment as had been foretold and almost promised on the 20th
of December. Mr. Holabird, therefore, at the desire of the Mar-
shal propounds that decent question, and requests precise instruc-
tions, " 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 l"2th of January, Mr. Forsyth in a confidential
letter to Mr. Holabird informs him that his missive of the day be-
fore 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 cor-
rected no uninitiated man can tell. Of the final warrant of Mar-
tin 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
rmains 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
86
Representatives, communicated to them by massage from Mr. Van
Buren himself, this original, erroneous, uncorrected order of the
7th of January, 18i0, was the only one included in the communi-
cation.
Bat m 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 car-
ried into execution, unless an appeal shall actually have been inter-
posed, you areviot 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
Judgel 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 ru-
lers 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 slave-traders, and
which the Secretary of State, by communion of sympathy with
Ruiz and Montes, denominates lawless violence. Cinque and Gra-
beau 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 expel-
87
led their tyrants themselves, and in gratitude to their self-devoted
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 de-
partment 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 con-
cerned in this business, as to have perverted their minds with re-
gard 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 atten-
tion of the Court to a very improper paper, in relation to this case,
which was published in the Official Journal of the Executive Ad-
ministration, on the very day of the meeting of this Court, and in-
troduced with a commendatory notice by the editor, as the produc-
tion of one of the brightest intellects of the South. I know not
who is the author, but it appeared with that almost official sanc-
tion, on the day of meeting of this Court. It purports to be a re-
view of the present case. The writer begins by referring to the de-
cision of the District Court, and says the case is " one of the deep-
est 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 slave-
ry and freedom between foreigners ; of the lawfulness or unlaw-
ness of the African slave trade ; and has not, when properly con-
sidered, the remotest connection with the interests of the south-
ern states.
What was the purpose or intent of that article, I am not pre-
pared 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 man-
ner as to induce this Court to decide it in favor of the alledged in-
terests 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 ap-
peared. I now wish simply, to refer your Honors to the original
principle of slavery, as laid down by this champion of the institu-
tion. 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 circum-
stances, 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, tohich 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 demand-
ed from this Court, by the Official Journal of the Executive, on
behalf of tha southern states'! Is that a principle recognized by
this Court 1 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
alledged 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 princi-
ple on which these United States stand before the world 1 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 inalien-
able, 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
89
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 prin-
ciple. 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 des-
potism 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 Chris-
tian. That it is utterly incompatible with any theory of human
rights, and especially with the rights which the Declaration of Inde-
pendence proclaims as self-evident 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 no-
thing more in behalf of these unfortunate men, than this Decla-
ration. The opposite principle is laid down, not by an unintelli-
gent 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 re-
ceive punishment for what offences ^they may have committed
against their masters, those who have been in Cuba in undisputed
possession of property under the Spanish flag were instantly de-
prived 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 ap-
palling 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 char-
ges which the negroes were instigated to make, for offences com-
mitted against the negroes while they were in Cuba, under the
Spanish jurisdiction. This is the justice of an American court,
12
90
bowed down in disgraceful subserviency before the bigoted man=»
dates of that blind fanaticism which prompted the Judge upon the
bench to declare in his decree, in reference to one of these ne-
groes, that, ' Although he might be stained with crime, yet he
should not sigh in vain for Africa 5' 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 sympa-
thies 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 commu-
nicated to Congress. The Spanish minister seems to be ever at-
tentive to all that is going on, in all the departments of Govern-
ment, with relation to this case. In a letter dated the 20th of
March, 1840, he observes that the Secretary of State had confi-
dently asked him to furnish a copy of the existing laws of Cuba
relative to negro slavery. What was this for % Was the Presi=-
dent of the United States under the impression that before he
carried into effect this exercise of despotic power, to seize MEN,
by his own warranty and send them to foreign countries for punish-
ment 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 1 The Secretary of
State asked Mr. Calderon for evidence in the case, but he hadt
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, sole-
ly, as they alledge, in pursuance of a demand made by the minis-
ter of Spain to that effect. What is the reply 1 Mr. Argaiz says
he cannot communicate the law officially, because he cannot re'
cognize the jurisdiction of the Court over the case. Here is an-'
other point-blank contradiction of the material 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 be->-
gins.
91
' ^' Mr. Forsyth was pleased, some lime since, to state to the
Chevalier de Arg-aiz, 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 Argaiz 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, be-
tween Spain and England."
Now, may it please the Court, may I inquire why this demand
was limited to laws subsequent to the treaty of 18181 The de-
cree for abolishing the slave trade was issued in 1817. Why did.
the Spanish minister limit his request to laws passed after 1818 ?
Why was not the decree of 1817 brought forward 1 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 back. 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 Ar-
gaiz refers to certain resolutions of the United States Senate,
passed the 15th of the same month, commonly called Mr. Cal-
houn's resolutions. I showed the other day, that if these princi-
ples 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 be-
long, would be placed under the penalty which the laws of na-
tions extend to the unfortunate under such circumstances."
92
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 estab-
lished among the persons on 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 YiQ found himself obliged to
make on the reclamation" made for the Amistad " and the proper-
ty 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 irre-
vocably as slaves, on a claim of property by Ruiz and Montes.*
Here we have what appears to be a blank passport, filled up with
forty-nine Spanish names of persons, who are described as ladi'
noSy 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 descrip-
tion of the person, as to his height, age, complexion, hair, fore-
* It is thought best to give a copy of this celebrated passport, as it appears in
the Congressional Documents, with the exception that the interpolate word«e.
gros is omitted, and the portions of the paper which were in writing are printed
in italics. It will be seen that the signature of the Captain General, of which so
much was made, was printed !
Filiacion.
N. Habana, 26 de Junio, de 1839.
Concedo licencia a cuerenta y nueva ladinos nombra-
dos Antonio, Simon, Lucas Jose, Pedro, Martin, Manuel,
Andres, Eduardo, Celedonin, Bartolo, Ratnon, Agustin,
Evaristo, Casimiro, Melchor, Gabriel, Saniorion, Esco-
lastico, Pascual, Estanislao, Desiderio, Nicolas, Este-
han, Tonias, Cosme, Luis, Bartolo, Julian, Frederico,
Salustiano, Ladislf^o, Celestino, Epifaneo, Tibureo, Ve-
nancio, Felipe, Francisco, Hipolito, Benito, Ysidoro, Vi-
cente, Dionisio, Apoloneo, Esequiel, Leon, Julio, Hipolito,
y Zcnon, de la propriedad de Don Jose Ruiz, para que
pascn a Puerto Principe por mar, dcbiendo, presentarse
con esta al juez territorial respectivo.
Derechos dos real es — una rubrica.] ESPELETA.
Commandaiicia do Matriculas.
Pasan en la solcta Amistad k la Guannja, patron Ferrer.
MARTINEZ.
Habana, y Junio 27, de 1839.
Estatura
Edad
Color
Pelo -
Frente
Cejas -
Ojos -
Nariz -
Boca -
Barba
Senales parlicularcfr
93
head, 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 con-
formity of his person to the marks given 5 and a passport is no-
thing, and is good for nothing, if it does not accord with the
marks given. The man who presents it must show by this accord-
ance that he is the person named. Everybody 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 in-
stantly compares your person with the description, and if it cor-
responds, 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 custom-house,
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 a
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
passporc 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 pro-
tection. 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 correspon-
94
dence of the description with his person. I mention this to show
that the value of a passport, according to the rules of those coun.
tries where such thiags 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 incompe-
tency to answer the purpose of a 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 1 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 im-
possible.
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 Jus-
tice 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 deliver-
ing up persons held as slaves by foreign laws, I ask this Court to
re-examine that principle and settle it anew. And if, upon re-ex-
amination, by what I 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 opin-
ions, with the reasons. I would not call in question the propriety
of the determination of the Court in that day, severally, to with-
hold 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 cha-
racter, and the decisions of the District, Circuit, and Supreme
95
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 heen, from a period coeval with that of North Ameri-
can 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
self-constituted sovereign and disunited States, capturing wherev-
er 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 Balti-
more under the flag of Venezuela — there clandestinely shipped a
crew of thirty or forty men, not one of whom had ever owed al-
legiance to the Republic of Venezuela, and sailed in search of
adventure, to pounce upon the defenceless 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
slave-coast of Africa- — a mighty huntress, and her prey was man.
There she fell in with sister pirates in abundance — first an Ameri-
can, from Bristol, Rhode Island, and borrowed twenty-five negro
captives from her | then sundry ostensible Portuguese vessels,
from which she took nearly two hundred 5 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 mer-
chandise the Arraganta steered for the coast of Brazil, for a mar-
ket. 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
96
surviv^ing 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 vio-
lation 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 contend-
ing for their independence, and those prohibiting their participa-
tion 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, boaided 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
a 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 slave-trade,
when the laws of his country had pronounced it piracy, punisha-
ble with death, it was that of this same John Smith. He had re-
nounced 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 Afri-
can, 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 a fortunate casualty brought within
our jurisdiction and the beneficent operation of our emancipating
laws, 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
97
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 in-
dicted 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 suffer-
ed to go at large, entirely unmolested, but was permitted to file
his claim, before the District Court of the United States in Geor-
gia, for the restitution to him of the Antelope and all her living
cargo, as captured jure belli, 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, adjudicat-
ing in a State where slavery is the law of the land. If this cir-
cumstance 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 thg
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 re-
mained 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 Dal-
las, filed in the District Court a libel against the Antelope, or Gen-
eral Ramirez, for forfeiture, under the act of Congress of 20th
13
April, 1818, prohibiting American citizens from engaging in the
African slave-trade.
At the same Court, Charles Mulvey, vice-consul of Spain, and
Francis Sorell, vice-consul 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 en-
gaged 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 de-
clared free, and those taken from the Spaniards and Portuguese
doomed to perpetual slavery 1
The judge hunted up sundry old decisions in the Supreme Court
of the United States, and, finally, the case of the Josafa et Segun-
da, 5 Wheaton, 338, for a principle " that, upon a piratical or ille-
gal capture, the property of the original owners cannot be for-
feited 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
99
Spanish owners of the Antelope could not be forfeited by the mis-
conduct 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 miscon-
duct 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 mis-
conduct, the precedent of the Josafa et Segunda had no applica-
tion whatever, and it was altogether overlooked in the decision of
the district judge, although he decreed freedom to the chance
chosen survivors of the twenty-five negroes of the very same
cargo, taken from the American vessel, though forfeited and lib-
erated 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 smug-
gle 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 pro-
ceeded, 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.
A.t 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 sus-
tained 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
*^hese two parties the Spanish and Portuguese Vice Consuls, and
100
well they might assent!) that the claim of John Jackson to sal*
vage, 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 21st 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, distinguish"
ing the negroes respectively belonging to each. He was also re-
quired to designate the very small number adjudged to the Unit-
ed States, that is, to the blessed enjoyment of themselves and their
own liberty ; and associating with himself two resident merchants,,
was at ihe 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 free-
dom, was the first incident which brought to a pause the legal
standard of morality of a Connecticut District Judge of the Unit-
ed States in the case of the Amistad captives. An estimate in dol-
lars and cents of the value at JSl'ew Haven, of from two to three
hundred living men and women, for the purpose of allowing sal-
vage 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 shock-
ed his moral sense, and he instantly decided that men and women
were not articles for a price current in the markets overt of Con-
necticut.
In the markets of Savannah, nothing was more simple. The
clerk of the District Court, with his two associated resident mer-
chants, in obedience to the order of the judge appraized the ne-
groes taken from the Spanish and Portuguese vessels at three
hundred dollars per head, making the aggregate of sixty-one thou-
sand five hundred dollars [for 205 souls'] ; and they were of opi-
nion 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
101
and seventy-five dollars for two hundred and five men and viromen !
What a revolution in the relative value of slaves and of freemen,
since the age of Homer ! In the estimate of tha:t Prince of Gre-
cian 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 in-
fliction 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 twenty-five dol-
lars a head for redeeming one parcel of Africans from slavery to
freedom, while at the same time he was to receive seventy'five
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 fifty-eight negroes had been
delivered by Captain John Jackson, Commander of the Revenue
Cutter Dallas, on the 25th of July, 1820, to the marshal of Geor-
gia, from on board the General Ramirez [the Antelope.] That
of that number forty-four 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 re-
mained to be apportioned.
What had 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 fur-
ther 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 be-
tween the decks of a slaver in the middle passage, but on the soil
of the American Union, in the mild and healthy climate of Geor-
gia— in the custody of an officer commissioned by the President
102
of the United States, and under the protection of their judicial
magistracy. In the case of the Amistad, the mortality ceased, as
as soon as the captives were admitted to the privilege of hreath-
ing 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. fiv e, 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 fifty-eight, 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 respect-
ively belonging to each of these classes. He could obtain no evi-
dence 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 twenty-five 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 cap-
tured by the Arraganta had been 331, of which 213 were Por-
tuguese, 93 Spanish, and 25 American. That of the whole num-
ber 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 in-
dividual survivors of each separate class, and the clerk therefore
reported that there had been captured by the Arraganta 213 Por-
tuguese negroes,of which the average loss was 71 ;— 93 Spanish ne-
103
groes 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 ap-
portioned— 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 j 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, Eichard
W. Habersham, and by Spanish Vice Consul Mulvey. The Dis-
trict Attorney still claiming the freedom of all the negroes, and
objecting to the allowance of 75 dollars a head to Captain Jack-
son 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 al-
lowance to Captain Jackson for salvage was too high, and ought
to be regulated by the act of Congress in relation to the compen-
sation given in case the said slaves had been decreed to be deliver-
ed to the United States.
The Judge confirmed the report of the Clerk in all its parts j
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 over-ruling 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 the Josefa Segundas,
(Wheaton, 338,) where it was said, that as piracy can neither di-
vest nor convey property, a pirate cannot, by a subsequent viola-
tion of the laws of his own country, forfeit the property of which
104
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 a
privateer, with a commission from Arismendi, under the Republic
of Venezuela, was not piracy ; and that the Josefa Segunda, a Span-
ish vessel, and her cargo of negroes, captured by authority of such
a commission, were forfeited by a subsequent attempt of the cap-
tors 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
no 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 legi-
timate a prize as that of Arismendi j and John Smith, when cap.
tured with the Antelope and her negroes, by Captain Jackson, pro-
duced this commission from Artigas as his warrant for his posses,
sion 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 5 and the decision of the Su-
preme Court, in the case of the Josefa Segunda, instead of sustain-
ing 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 Portu-
guese 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
105
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 endea-
vored to show, did not belong to the case. " But it is contended,"
(says the District judge) " on the authority of some recent deci-
sions in the British Admiralty Court, that Africans are to be con-
sidered 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. This
doctrine may be correct in England, since there negroes have al-
ways been held to be free, except in cases where they have volun-
tarily 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 th
several States of the United States when they were British colo"
nies, 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 con-
trary be shown. That this trade, however inhuman it may be, and
however obnoxious it is to every benevolent feeling, must now be
considered legal, notwithstandiftg 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 Govern*-
ments 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 con-
sider 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, / think, uniformly be considered free, until the
contrary was shown ; in the other case, they would be so consi*
dered when they were found in the possession of. the subjects or
citizens of that Government which had determined to abolish the
trade.
14
106 ^
" 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, / 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 v)ould feel hound to respect the
rights of Africans no less than it would 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 engage-
ment of Spain V
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 to-
tal 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 1 The judge admits that the trade is
inhuman^ that it is obnoxious to every benevolent feelings but he is
bound to consider it legal, notwithstanding its injustice^ because
many years before it had been practised by Great Britain, and not
many years before by the United States themselves." Is this rea-
soning 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 j 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 slave-holding judge upon slavery
and the slave trade, and by such reasoning did he, out of two hun-
107
dred and twelve Africans, fovfeit 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 toio ccelo from those of the District judge. He
increased the number of the Africans to be liberated, as survivors
of the twenty-five 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 two-thirds
of the whole. He reversed the decree of the District judge, which
had allotted one hundred and forty-two 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 Re-
public, 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 Con-
sul. 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 trader
108
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. Biit this, although
perhaps literally within the provisions of the statute, is obviously
not wiihin the intent and meaning y Why perhaps, literally v/ith-
in the provisions of the statute 1 No reader of the English lan-
guage 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 1 Never was an obiter dictum of a judge more per-
emptory 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, with,
out 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 5 and from this it follows, that Smith had no interest on which
the forfeiture inflicted by law for this offence 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 contro-
versy 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 smug-
gler had stolen the instrument with which he committed the crime !
No ! 1 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 !
109
The wild and glaring inconsistency not only between the opin-
ions 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 com-
posure of justice or to the impartial exercise of the judicial facul-
ty. 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 sarcasti-
cally 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 vol-
unteer, he quotes a passage from the decision of the British Court
in the case of the Amedee [Acton, 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 1 have lived to see its death-blow. 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 hor-
rors acted in St. Domingo opened the eyes of Government to con-
sequences 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 Admi-
ralty."
" That slavery, (says again the Judge of the Circuit Court,) is
a national evil no one will deny except him [he] who would main-
tain 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
110
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 alto-
gether — 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. Domin-
go 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 Ad-
miralty. As for slavery, every one knows it an evil, but it was en-
tailed upon us by our ancestors ; it was provided for by the consti-
tution 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 1
Upon the tone of this judicial argumentation I shall not in-
dulge 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 ac-
count of moral principle ? The reasons of the British Judge
glow with the flame of human liberty ; those of the American
Judge* are wedged in thrilling regions of thick ribbed ice. Vitu-
peration of the slave trade in words, with a broad shield of pro-
tection carefully extended over it in deeds. Slavery acknowl-
edged an evil, and the inveteracy of its abuse urged as an unan-
swerable argument for its perpetuity : the best of actions imput-
ed to the worst of motives, and a bluster of mental energy to
shelter a national crime behind a barrier of national indepen-
dence ; these are the characteristics exhibited by American in
collision with British Admiralty Courts. Or again, examine the
ill
respective opinions and decrees in their bearing upon the trade
itself : those of the British Court went directly to its suppres-
sion 5 those of the American Courts^ to its encouragement, secu*
rity and promotion. The British Court has at least the consisten-
cy 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 altogeth-
er inter alios, whether the Spanish and Portuguse nations had au-
thorized 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 diffi-
culty occurs. No competent witness can tell which of the survi-
ving Negroes were taken from the American vessels, which from
the Portuguese vessels,' and which from the Antelope. The indi-
viduals belonging to each of the three vessels cannot be identi-
fied. How shall he distribute his doom of freedom and of slave*
ry among the prize goods and the pirated merchandize of John
Smith % With a full conciousness of the gross and glaring injus-
tice of the decree he says, the lot mttst decide ! Where did he
get his law for that 1 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 now 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 and 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
112
divination 1 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 num-
ber from twenty-five to nine, [to seven,] for this depends upon
testimony that was interested to deceive, since in those twenty-
five, 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 twenty-three 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 Spani sh inter-
est iu her — and the slaves taken on board of hei, must necessarily
follow her fate. But I am induced to think that the evidence pre=
ponderates to prove that there were but ninety-three, and, that
number must also be reduced by the general scale of loss. Con-
cerning the residue, the evidence appears so conclusive, that re-
luctant 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 be-
comes 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 proper-
ty 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 proper-
ty as prize of war there could have been no Spanish claimant to
whom it could have been restored. The decree of restoration to
Spanish owners was therefore ipse 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,
1823, the Decree of the District Court, so far as related to the
vessel, the Antelope, was affirmed, and so far as related to the
113
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 for-
feiture 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 importa-
tion 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 emancipa-
tion. They are re-consigned to hopeless and perpetual slavery,
from mere reverence for the property of Spanish slave traders !
Well mio"ht 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 li-
berty, and every sincere wisher for the suppression of that de-
tested 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.
15
114
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 ; to be delivered to the Spanish Vice Consul, toge-
ther with the proceeds of the vessels, and with suitable deduc-
tions for the salvage, forthwith — and he reserved for further con-
sideration, 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 ap-
pointed judge of the District Court in the place of William Davis
deceased, a special court, at which the case was argued, and fur-
ther 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 Portu-
guese claimants in the ratio of one hundred and sixty-six on be-
half of the Spanish claimants, and one hundred and thirty on be-
half 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 Decretal
Order of this court, in paying the expenses incurred on said ne-
groes in the ratio above stated, and in giving bond and secu-
rity 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 Unit-
ed States from so much of the said decree, of the said Circuit
Court as decreed the said African negroes to the Portuguese Vice
Consul.
115
And thus, in February, 1822, tlie 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 pro-
gressing 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 o{ fortifications^
for the defence 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 aggres-
sion 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 An-
telope 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 lot-
tery judgment of the Circuit Court. It reversed the whole allot-
ment 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 Ante-
lope. The allowances of salvage and of gratuity to Captain Jack-
116
son and the crew of the Revenue Cutter were confirmed. One
step further and the case of the Antelope would have conferred
iinfadmg glory on the Supreme Court. One step more, and the
heartless sophistry would have been silenced, and the cold blood-
ed apathy to human suffering would have been stung into sensi-
bility, which delivered up to Spanish slave traders, a vessel, for-
feited by the just severity, and thirty-nine Africans emancipated
by the benignty, of the laws of this Union for the suppression of
the African slave trade.
That step was not taken j 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 alledge 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 them-
selves. It contains no angry invective, no sneering sar-
casm, no direct defiance, on the motives of the British gov-
ernment, and the solicitude of the British tribunals, for the sup-
pression 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 prin-
ciple 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 as to him was assigned
the duty of pronouncing the decree of the court, his argument
was necessarily on the side of that division which sustained the
decree of the Circuit Court, and consequently there is no coun-
teractino- opinion upon the records to balance it. But it almost
balances itself. The argument with much hesitation concludes
117
that the African slave trade is not contrary to the Law of Nations
— but it begins with admitting, also with hesitation, that it is con-
trary 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 na-
tural 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 seemsy
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 oi"igin 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-
tives. 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 prison-
ers are slaves. Can those who have 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-
siders 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 ;
118
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, can-
not 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 slave-trade wsis heretofore, not contrary
to the international law of Europe and of Christendom. But how
was it, when the Antelope was in judgment before Christian Admi-
ralty Courts in 1820-21, 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
24th 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 slave-trade
as a 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 concur-
ring in the most prompt and effectual execution of this measure,
By all the means at their disposal, and of acting in the employ-
ment of those means with all the zeal and perseverance which is
due to so noble a cause." And again,
119
" 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 slave-trade 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 restora-
tion, 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 hun-
dred days of his authority, decreed the immediate and total aboli-
tion of the slave-trade on the part of France^ — which decree
Louis the 18th, upon his second restoration, repeated and con-
firmed— 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
slave-trade, and having each in their respective dominions, pro-
hibited 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 princi-
ples, which they proclaimed in the Declaration of the 8th of Feb-
ruary, 181b, and of concerting 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
120
the sentiments of his Britannic Majesty with respect to the in-
justice 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 act-
ing in conformity with those sentiments.
And on the 23d of September, 1817, by a treaty concluded be-
tween the same two powers, his Catholic Majesty engaged, that
the slave-trade should be abolished throughout the entire domi-
nions 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 part 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 law-
fully, previously to the said 30th of May.
A decree of the King of Spain, of December, 1817, conformable
to the above treaty-stipulation, 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 Ha-
vana, upon her slave-trading expedition, and had even been cap-
tured by the Arraganta, before the 20th of May, 1820, and conse-
quently before the legal prohibition had taken efiect. The cap-
ture of her by the Arraganta had been made, not for breach of
laws against the slave-trade, but as prize of war under a commis-
sion from the Oriental Republic. It was her captor who had in-
curred her forfeiture, and the liberation of the Africans taken in
her by the violation of the laws of the United States against the
slave-trade^ — 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. Thai was i-es 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
121
was smuggling in to be sold as slaves. It was the identical
offence against which the laws of Congress had provided, and the
negroes had by those laws, and by the violation of them commit-
ted 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 slave-traders
who had kidnapped or bought them in Africa, and had not yet
consummated their property by bringing them within the exclu-
sive jurisdiction of Spain.
All the Courts of the United States did however think proper
to go back to the proprietary right of the Spanish slave-trader ;
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 col-
lateral 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 differenf. 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 Cap-
tain 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, un-
told and unidentified, to the Spanish minister. Whatever there
was or could be of authority in the case of the Antelope led di-
rectly to the opposite conclusion. The Supreme Court had top-
16
122
pled down headlong the decree of the Circuit Court for the dis^
tribution of the victims between the Spanish and Portuguese
Vice Consuls by lot. They had scattered to the winds this gam-
bling 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 j they had exacted proof of the number and
identification of the individuals, to be given up to the Vice Con-
sul of Spain. They had allowed salvage for them to captain Jack-
son, to be deducted from their estimated value ; and from two'
hundred and ninety-six adjudicated by the courts below, to per-
petual 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 thir-
ty-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 au-
thorities in Cuba for gold — for a doubloon a head. They had been
shipped coast-wise, in continuance and for consummation of the
slave-trading voyage from Africa. They had been clandestinely
transferred to Ruiz and Montes, who were furnished with printed
pretended passports, false and fraudulent u-pon 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 Ru-
iz and Montes themselves. Lieut. Gedney seized them as charg-
ed 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
chano"e their condition. The courts of the United must have en-
slaved the captives of the Amistad before they could restore themt
to their pretended masters.
The decision of the courts of the United States against the cap=
123
tires 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 Arasdee. It is apparent that the Admi-
ralty Courts of Great Britain have been divided on the question
not less than those of the United States. Sir Willian Scott, who,
during the war of the French Revolution, had been the main pil-
lar 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 visi-
tation 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 eman-
cipated by mere contact with English soil, became re-enslaved 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 ease of the Louis he laid it down in
naost 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 na-
tion at peace, except against professed pirates, who are the ene-
naies 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 unjustifi-
able. 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]eecord, 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 with-
lout 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 v/ithin these United States. By
124
the act of Congress of 2d of March, 1799, to regulate the collec-
tion 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 Unit-
ed 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 af-
ter the first day of January, 1808, in any river, port, bay, or har-
bor, 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 employ-
ed to cruise on any part of the coast of the United States, or ter-
ritories thereof, where he may judge attempts will be made to vi-
olate 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 ves-
sels, 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 opin-
135
ions, and the Attorney General Grundy cites, in the case of the
Amistad, the opinons of Chief Justice Marshall in that of the An-
telope, as authority for a principle which in that very opinion the
Chief justice declares is 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 ship-
ment 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 Seott 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 na-
ture ; that it is inhuman, cruel, odious, detestable ; but that it is
not contrary to the law of nations, and therefore must be acknowl-
edged, 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 ad-
mitted practice, by treaties, and by the general tenor of the laws
126
and ordinances, and the formal transactions of civilized states ;
and looking to these authorities, he found a difficulty in maintain-
ing that the transaction was legally criminal."
In the Declaration of Independence the Laws of Nature are an^
nounced 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, dif-
fering 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 super-
sede the laws of God, and justify, before the tribunals of man, the
most atrocious of crimes in the eyes of God. With such a prin-
ciple 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 over-
come 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 onboard
the Antelope as those which were put on board that vessel by the
captain of the Arraganta. After making the apportionment ac-
cording 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 de-
livered 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 Geor-
gia 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
12?
and yet was their decree, on this point, not so explicit, but that
one of the two judges of the Circuit Court believed that the selec-
tion 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 Su-
preme tribunal ; and hence arose a difference 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 Cir-
cuit 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 Span-
ish 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 j&roq/" 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 Span-
ish 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 Por.
tuguese 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 Span-
128
ish Vice Consul should be reduced from 166 to 93 ; and that num-
ber 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
loi, 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 cap-
tives 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 1
" The Circuit Court, [says the Report, 12 Wheaton, 547,] in
order to enable it to decree finally in the case, directed the regis-
ter to take and report an account of the costs, and also of the ex-
penses of keeping, maintaining, &c. of the Africans, by the mar-
shal, and which account (amounting to upwards of thirty-six thou-
sand 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 Span-
ish claimants, as directed by the decree of 1826.
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 ex-
penses and charges of the marshal, for maintaining, &c. the Afri=
cans: and being of opinion that 39 of the Africans were sufficient-
ly identified, by proof, as being the property of the Spanish claim-
ants, 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
'129
of Africans delivered to the whole number. And the Circuit Court
was further of opinion, that the residue of the Africans not direct-
ed 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 un-
satisfied, 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 '' cer-
tified to this Court."
The United States District Attorney appealed from so much of
this final order of the Circuit Court as related to the apportion-
ment 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 rela-
tion 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 anti-judicial 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 Cir-
cuit 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, absolute-
ly 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 heads
was a condition precedent to their delivery to the United States,
in the event of nonpayment, the marshal had a lien upon the Afri^
cans, 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 human-
ity, or of freedom. Fifty of them, employed upon the fortifications^
17
130
had been selected by the marshal, and recognised 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 ihe examination when
Grondona recognized thirty-four 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 tes-
tified 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 oi^disposing of their freedom. The ex-
amination 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 thirty-nine 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 en-
slave 39 human beings, otherwise entitled to freedom, evidence
was deemed sufficient, which, upon an ordinary question of pro-
perty, 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
marked, in the opinion of the judge of the Circuit Court, in De-
cember, 1826, as they had been in his preceding opinion, delivered
in 1821. 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 1 The United
States regard the subjects of this suit as men and not things.
They could not be sold, and the money lodged in the registry.
They were then prisoners, and necessarily to be kept and treated
as such." Flad 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, pre-
cisely because they must be kept and treated, if at all, as prison-
131
ers, they could not be restored entire as merchandize, nor, there-
fore, 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 1 That the maintenance of
the Africans was a legal charge on the United States, in the first
instance, is perfectly clear. By the act of February 28, 1799, in
fdrcing them into the hands of the marshal, the United States be-
came 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, es-
tablished seven principles ; the first of which, in his enumeration,
is — " That the law of nations recognized both slavery and the slave-
trader
But Chief Justice Marshall, in delivering the opinion and pro-
nouncing 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 slave-trade by the
law of nations, " the Court is 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 recog-
nized both slavery and the slave-trade. 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
imderstand to be its meaning. And, upon collating and combin-
ing their decree of 1825 with the explanatory decree of 1826, the
two will be found to amount to this — that the rights of the Span-
iards shall be recognized j 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 excep-
tion of those to be thus identified, shall be delivered over to the
United States. This will be doing what that Court certainly in-
132
tended to do : it will make a final disposition of a most trouble-
some 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 recog-
nized, would seem to go fully up to the maintenance of the Span-
ish 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 judi-
cial tribunals of the United States. That vessel, commanded by
a citizen of the United States, was taken in the very act of smug-
gling 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 slave-trade, 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 rever-
sals 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 slave-traders 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 sus-
pended 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 Dis-
trict Judge, which had limited the number to seven,) — sixteen had
drawn the prize of liberty, to which the whole number were enti-
tled 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 cir-
cumstances oj 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 transpor-
tation, as freemen, beyond the limits of the United States, by the
Chief Magistrate of the Union,
133
And now, by what possible process of reasoning can any decis«
ion of the Supreme Court of the United States in the case of the
Antelope, be adduced as 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 pro-
hibits 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, self-emancipated,
and not in the condition of slaves. That^ surely, could not legal-
ize 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 free-
dom. 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
13i
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 re-inslave 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. J have avoided, pur-
posely 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 forbid-
den 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 liber-
ty. 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 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 de-
fence 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.
135
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 be-
half 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 —
" hie csestus, 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 — Gushing —
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 slave-trade, Elias B.
Caldwell \ Where is the marshal — where are the criers of the
Court % Alas ! where is one of the very judges of the Court, arbi-
ters of life and death, before whom I commenced this anxious
argument, even now prematurely closed 1 Where are they all %
Gone ! Gone ! All gone ! — Gone from the services which, in tlieir
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 ap-
proving sentence — " Well done, good and faithful servant ; enter
thou into the joy of thy Lord."
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