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"Rough draft of Andrew Judson's ruling on the Africans, January 1840, Andrew T. Judson Papers, Coll 247, box 1/7, Manuscripts Collection, Mystic Seaport Museum
In all cases where property and title are proved to be in Spanish subjects, the Treaty is imperative and at all hazards, it must be surrendered. The obligations are [solmn], and war might be the consequence of a [breach] of this duty on our part. I go up to the letter and spirit of the treaty both but I do not step over it, mainly because the demand is made by a high [contracting] power. The demand must be lawfull [sic]. The minister has demanded the Schooner, and suppose in point of fact it should turn out that the Schooner belonged to a subject of France, instead of Spain, can we deliver it to Spain? Surely not. How stands the case here. The government of Spain, demand of us, under their treaty, a restoration of these negroes, and we ask them for their title. If it a very well settled principle, here and else where, that the party demanding restoration, must show his title -- This [onus probandi] lies on him. Aware of this rule of law, the Spanish claimants sent to me their evidence of title. And what is that document. A deed -- a bill of sale -- a transfer? No. It is a permit -- A License a Passo signed by the Governor General of Cuba for Don Pedro Montez and Don Jose Ruiz to transport 54 Libenos [sic] to Guanaja, and this is all! This embraces the whole evidence of property and title both. In point of fact, these are not Libenos. They might be lawfully sold and carried to Guanaja. These negroes are Bozals and not Libenos.
Here then is the point -- the pivot upon which this great controversey [sic] must turn!
To shew [sic] that it is so, I shall be obliged to refer to the Laws of Spain, as the same are here proved, because those Laws make a part of the case itself. They are to be proved in the Court of the U.S. as matters of fact are proved. This has been done on this inquirey [sic], and this Court is just as competent to judge of the effect of a foreign Law, when thus proved; as of a law of the U.S.
I find then as matter of fact, that in the month of June 1839, the law of Spain did prohibit under severe penalty the importation into Cuba of negroes from Africa. These negroes were imported in violation of that law and be it remembered that by the same law of Spain, such imported negroes are declared to be free in Spain. This accounts for the declaration of the Spanish Counsul, "that if these negroes should be returned to Cuba, some of the leaders might be punished, but none of them could be made slaves" This declaration is in exact conformity with the law of Spain so far as the matter of slavery is concerned. They could not be slaves there, because the law declares them free. They were Bozals, and not slaves. This declaration is from a high government functionary of Spain. Why then should the law be doubted by me! I do not doubt it. I do expressly find it to be such. If there had been any doubt, as to what the law of Spain is, I ask, would not the Spanish Minister resident at Washington, have communicated that law to this government, so that it might have been sent here? We are bound to believe, that the Minister of every foreign country, brings with him, the laws of his sovereign, and is able on the shortest notice to make those laws known to us, where the question may arise. Between nations, it is not required that every matter of form should be strictly complied with. In the intercourse of friendly nations, the substance is all that is required. Why has not the Spanish Ministry told us that a law exists, by which Bozal negroes are slaves in Cuba? Why has he not sent in that law with his claim? Ample time has been offered. He knows that the burden of proof lies with him, and still withholds the law if it does exist!
How can he expect an American Court to decree that these negroes are property, while he omits to produce the evidence which makes them property. In reply it may be said they were in possession of Spanish subjects. But possession is only one indici [sic] of property and that has been rebutted by the proof that these are Bozal negroes and cannot be made property by any machinery of sale, or transportation.
This brings me to the question of title in Montez and Ruiz who now claim them through their government. Though they do not come into Court, in person, yet they do come in the Majesty of their Sovereign They need not come in person, and if they do, they may stand aside and put forward the shield of regal authority as they do in this case.
But this establishes no title to property. Suppose I admit that slaves are property, yes Montez and Ruiz must possess the title in themselves. They have furnished no proof of payment -- they have shown no bill of sale -- no witness has sworn that he was present when these negroes were sold. They have not shewn [sic] in from whom they derive their title. It is the naked possession when they bring these negroes upon the deck of the Amistad on which they rely. When the right is disputed this is not enough.
Suppose a gentleman in Mississippi hires a slave of his neighbor for one year, as a travelling [sic] servant, and while in Kentucky sells him? He had the possession too, but he conveys no title, for it is the law of every country, in the civilized world, that a man must have title before he can grant it to another. Were a gentleman of N.H. to rent me his house and give me the possession, and another person from Havanna should come here and take a deed of that house from me, he would gain nothing by the grant, for the simple reason that I had no right to grant. This is so plain that the feeblest intellect cannot but see it. How does the Spanish Minister fill up this chasm in the evidence? How does he link together this claim of title? By nothing else, except the Governor Genls Passo and this has before been commented upon. Now that official document is to serve the double purpose of proving property and title both: and yet when we look on it again, and apply to it our judicial test, if the expression may be allowed, we find that instrument still is for Libenoes [sic] and not Bozals. It contains on its face an untruth. The Gov. Gen. has not given a pass for these negroes! And consequently these Bozals stand on the deck of the L'Amistad without any passo whatever.
For a familiar illustration of this legal result, take, if you please, a Bale of goods, for we will now call them good, and have it shipped and invoiced at Liverpool as cotton prints -- they are entered here as cotton prints -- or smuggled in -- and there sold to an innocent purchase, when it is discovered for the first time that "Broad cloths" compose the package. These broad cloths may be taken from the innocent purchaser, libelled [sic] and forfeited. Where is the remedy. The purchaser goes back to the seller, and he must take care of himself. Who sold these Bozals to Don Jose Ruiz and took his twenty thousand from him? I know not, but if he does, there is his remedy. If sale of an article of goods to which he, the seller, had no title. And suppose this seller has absconded, or refuses to refund the money, it may be a hard case for Mr. Ruiz, and yet [caveat emptor] is the well known maxim, and he must then set down by the loss, as many others are obliged to do. The purchaser must be vigitent [sic] in the investigation of the property he buys. If there had been vigilence in this case Ruiz and Montez might have saved all their property -- and the iminent [sic] hazard of life: and this Court might have been relieved from this heavy responsibility, which has been pressing it down for these four months.
Why did they not ascertain that these negroes were Bozals? This has been the source of all their complicated sufferings, the tale of which will make the stoutest heart bleed! Why did they not ascertain that the law of Spain had declared these objects of their purchase not slaves? The secret is told in a word. In Cuba it is the custom to buy such negroes, and them as Ladinoes or Creoles -- and there respectable men have grown up under the influence of this custom -- this practice against law.
The subjects of a foreign government are presumed however to know what their own laws are, and when broken, they cannot come here and ask us to invade the rights of others in justification of the breach of their own laws. This could not be done even there. Hence the Spanish Consul says this mode of bona fide selling is carried on without notice from the local authorities. Not that the act is lawfull, in itself, but only because the act is passed over. There is wealth and power on one side, and ignorance and weakness on the other.
The law is the same there, as I pronounced it here. That it is not well executed, is no evidence that the law does not exist. Let a case be presented to the Courts in Spain, and the proof be made as it is here and the result must inevitably be the same.
Shall these Bozals be given up under the treaty? And if so, for what purpose?
To have the question tried there whether they are slaves by the laws of Spain!!
The Spanish law declares they are not slaves; it would be utterly useless then to
send them back to Cuba. It would only be a work of super-[eroguting?] [under
the provisions of the treaty] If by their own laws, they cannot enslave
them then it follows of necessity, they cannot be demanded. When these facts are
known by the Spanish Minister he cannot but discover, that the subjects of his Quen
[sic], have acquired no rights in these men -- they are not the property of
Spain. His demand must be withdrawn. The very essence of his demand consists in the
supposed Spanish right of property, in the thing demanded. That being removed, by
his own law, there can no longer be cause of complaint.
At all events, this cannot be expected at my hands, because the Supreme Court have always refused to surrender property, unless there was proof of title in the claimants. The same rule applies equally to foreign and domestic claimants. Title must be shown in the property claimed, as belonging to the claimant or it cannot be surrendered. The positions I have laid down here, are fully recognized
