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U.S. Supreme Court
THE AMISTAD, 40 U.S. 518 (1841)
40 U.S. 518
The AMISTAD.
UNITED STATES, Appellants,
v
The LIBELLANTS AND CLAIMANTS
of the SCHOONER AMISTAD, her tackle, apparel and furniture, together with her cargo,
and the AFRICANS mentioned and described in the several libels and claims, Appellees.
January Term, 1841
Begin Part II:
The next question is, did the United States legally intervene to obtain the decree of the court for the restoration of the property, in order that it might be delivered to the Spanish owners, according to the stipulations of the treaty? They did! because the property of foreigners, thus brought under the cognisance of the courts, is, of right, deliverable to the public functionaries of the government to which such foreigners belong; because those functionaries have required the interposition of the United States on their behalf; and because the United States were authorized, [40 U.S. 518, 548] on that request, to interpose, pursuant to their treaty obligations. That the property of foreigners, under such circumstances, may be delivered to the public functionaries, is so clearly established, by the decisions of this court, that it is unnecessary to discuss the point. In the case (2 Mason 411-12, 463) of La Jeune Eugenie, there was a libel of the vessel, as in this case, and a claim interposed be the French consul, and also by the owners themselves. The court there directed the delivery of the property to the public functionary. In that of The Divina Pastora, 4 Wheat. 52, the Spanish consul interposed. In that of The Antelope, 10 Ibid. 68, there were claims interposed, very much as in this case, by the captain as captor, and by the vice-consuls of Spain and Portugal, for citizens of their respective countries; and by the United States. The court directed their delivery, partly to the consul of Spain, and partly to the United States. It is thus settled, that the public functionaries are entitled to intervene in such cases, on behalf of the citizens of their countries. In the present one, the Spanish minister did so intervene by applying to the United States to adopt, on his behalf, the necessary proceedings; and, upon his doing so, Ruiz and Montez withdrew their separate claims. The United States, on their part, acted as the treaty required. Th execuitve is their agent, in all such transactions, and on him devolved the obligation to see this property restored entire, if due proof concerning it was made. The form of proceeding was already established by precedent and by law. The course adopted was exactly that pursued in the case of McFadden v. The Exchange, 7 Cranch 116, where a vessel was libelled in a port of the United States. Being a public vessel of a foreign sovereign, which the government was bound to protect, they intervened exactly in the same way. The libel was dismissed, and the vessel restored to the custody of the public officers of France.
It is, therefore, equally clear, that the United States, in this instance, has pursued the course required by the laws of nations; and if the court are satisfied, on the first point, that there is due proof concerning the property, then it ought to be delivered entire, so that it may be restored to the Spanish owners. If this be so, the court below has erred, because it has not decreed any part of [40 U.S. 518, 549] the property to be delivered entire, except the boy Antonio. From the vessel and cargo, it has deducted the salvage, diminishing them by that amount; and the negroes it has entirely refused to direct to be delivered.
Baldwin, for the defendants in error.-In preparing to address this honorable court, on the questions arising upon this record, in behalf of the humble Africans whom I represent-contending, as they are, for freedom and for life, with two powerful governments arrayed against them-it has been to me a source of high gratification, in this unequal contest, that those questions will be heard and decided by a tribunal, not only elevated far above the influence of executive power and popular prejudice, but, from its very constitution, exempt from liability to those imputations to which a court, less happily constituted, or composed only of members from one section of the Union, might, however unjustly, be exposed.
This case is not only one of deep interest in itself, as affecting the destiny of the unfortunate Africans whom I represent, but it involves considerations deeply affecting our national character in the eyes of the whole civilized world, as well as questions of power on the part of the government of the United States, which are regarded with anxiety and alarm by a large portion of our citizens. It presents, for the first time, the question, whether that government, which was established for the promotion of justice, which was founded on the great principles of the revolution, as proclaimed in the Declaration of Independence, can, consistently with the genius of our institutions, become a party to proceedings for the enslavement of human beings cast upon our shores, and found, in the condition of freemen, within the territorial limits of a free and sovereign state?
In the remarks I shall have occasion to make, it will be my design to appeal to no sectional prejudices, and to assume no positions in which I shall not hope to be sustained by intelligent minds from the south as well as from the north. Although I am in favor of the broadest liberty of inquiry and discussion-happily secured by our constitution to every citizen, subject only to his individual responsibility to the laws for its abuse; I have ever been of the opinion, that the exercise of that liberty, by [40 U.S. 518, 550] citizens of one state, in regard to the institutions of another, should always be guided by discretion, and tempered with kindness. Mr. Baldwin here proceeded to state all the facts of the case, and the proceedings in the district and circuit courts, in support of the motion to dismiss the appeal. As no decision was given by the court on the motion, this part of the argument is, necessarily, omitted.
Mr. Baldwin continued, if the government of the United States could appear in any case as the representative of foreigners claiming property in the court of admiralty, it has no right to appear in their behalf, to aid them in the recovery of fugitive slaves, even when domiciled in the country from m which they escaped; much less the recent victims of the African slave-trade, who have sought an asylum in one of the free states of the Union, without any wrongful act on our part, or for which, as in the case of the Antelope, we are in any way responsible. The recently- imported Africans of the Amistad, if they were ever slaves, which is denied, were in the actual condition of freedom, when they came within the jurisdictional limits of the state of New York. They came there, without any wrongful act on the part of any officer or citizen of the United States. They were in a state where, not only no law existed to make them slaves, but where, by an express statute, all persons, except fugitives, & c., from a sister state, are declared to be free. They were under the protection of the laws of a state, which, in the language of the supreme court, in the case of City of New York v. Miln, 11 Pet. 139, 'has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits, as any foreign nation, when that jurisdiction is not surrendered or restrained by the constitution of the United States.'
The American people have never imposed it as a duty on the government of the United States, to become actors in an attempt to reduce to slavery, men found in a state of freedom, by giving extra-territorial force to a foreign slave law. Such a duty would not only be repugnant to the feelings of a large portion of the citizens of the United States, but it would be wholly inconsistent with the fundamental principles of our government, and the purposes [40 U.S. 518, 551] for which it was established, as well as with its policy in prohibiting the slave-trade and giving freedom to its victims. The recovery of slaves for their owners, whether foreign or domestic, is a matter with which the executive of the United States has no concern. The constitution confers upon the government no power to establish or legalize the institution of slavery. It recognises it as existing, in regard to persons held to service by the laws of the states which tolerate it; and contains a compact between the states, obliging them to respect the rights acquired under the slave laws of other states, in the cases specified in the constitution. But it imposes no duty, and confers no power, on the government of the United States, to act in regard to it. So far as the compact extends, the courts of the United States, whether sitting in a free state or a slave state, will give effect to it. Beyond that, all persons within the limits of a state are entitled to the protection of its laws.
If these Africans have been taken from the possession of their Spanish claimants, and wrongfully brought into the United States by our citizens, a question would have been presented similar to that which existed in the case of The Antelope. But when men have come here voluntarily, without any wrong on the part of the government or citizens of the United States, in withdrawing them from the jurisdiction of the Spanish laws, why should this government be required to become active in their restoration? They appear here as freemen. They are in a state where they are presumed to be free. They stand before our courts on equal ground with their claimants; and when the courts, after an impartial hearing, with all parties in interest before them, have pronounced them free, it is neither the duty nor the right of the executive of the United States, to interfere with the decision.
The question of the surrender of fugitive slaves to a foreign claimant, if the right exists at all, is left to the comity of the states which tolerate slavery. The government of the United States has nothing to do with it. In the letter of instructions addressed by Mr. Adams, when secretary of state, to Messrs. Gallatin and Rush, dated November 2d, 1818, in relation to a proposed arrangement with Great Britain, for a more active co-operation in the suppression of the slave-trade, he assigns as a [40 U.S. 518, 552] reason for rejecting the proposition for a mixed commission, ' that the disposal of the negroes found on board the slave-trading vessels, which might be condemned by the sentence of the mixed courts, cannot be carried into effect by the United States.' 'The condition of the blacks being, in this Union, regulated by the municipal laws of the separate states, the government of the United States can neither guaranty their liberty in the states where they could only be received as slaves, nor control them in the states where they would be recognised as free.' Doc. 48, H. Rep. 2 sess. 16th Cong. p. 15.
It may comport with the interest or feelings of a slave state, to surrender a fugitive slave to a foreigner, or, at least, to expel him from their borders. But the people of New England, except so far as they are bound by the compact, would cherish and protect him. To the extent of the compact, we acknowledge our obligation, and have passed laws for its fulfillment. Beyond that, our citizens would be unwilling to go. A state has no power to surrender a fugitive criminal to a foreign government for punishment; because that is necessarily a matter of national concern. The fugitive is demanded for a national purpose. But the question of the surrender of fugitive slaves concerns individuals merely. They are demanded as property only, and for private purposes. It is therefore, a proper subject for the action of the state, and not of the national authorities. The surrender of neither is demandable of right, unless stipulated by treaty. See, as to the surrender of fugitive criminals, 2 Brock. 493; 2 Summ. 482; 14 Pet. 540; Doc. 199, H. R. 26 Cong. p. 53-70; 10 Am. State Pap. 151-153, 433; 3 Hall's Law Jour. 135. An overture was once made by the government of the United States to negotiate a treaty with Great Britain, for the mutual surrender of fugitive slaves. But it was instantly repelled by the British government. It may well be doubted, whether such a stipulation is within the treatymaking power under the constitution of the United States. 'The power to make treaties,' says Chief Justice TANEY, 14 Pet. 569, 'is given in general terms,' 'and consequently, it was designed to include all those subjects which, in the ordinary intercourse of nations, had usually been made subjects [40 U.S. 518, 553] of negotiation and treaty; and which are consistent with the nature of our institutions, and the distribution of powers between the general and state government.' See Holmes v. Jennison, 14 Pet. 569. But however this may be, the attempt to introduce it is evidence that, unless provided for by treaty, the obligation to surrender was not deemed to exist.
We deny that Ruiz and Montez, Spanish subjects, had a right to call on any officer or court of the United States to use the force of the government, or the process of the law, for the purpose of again enslaving those who have thus escaped from foreign slavery, and sought an asylum here. We deny that the seizure of these persons by Lieutenant Gedney for such a purpose was a legal or justifiable act. How would it be- independently of the treaty between the United States and Spain-upon the principles of our government, of the common law, or of the law of nations? If a foreign slave vessel, engaged in a traffic which by our laws is denounced as inhuman and piratical, should be captured by the slaves, while on her voyage from Africa to Cuba, and they should succeed in reaching our shores, have the constitution or laws of the United States imposed upon our judges, our naval officers, or our executive, the duty of seizing the unhappy fugitives and delivering them up to their oppressors? Did the people of the United States, whose government is based on the great principles of the revolution, proclaimed in the Declaration of Independence, confer upon the federal, executive or judicial tribunals, the power of making our nation accessories to such atrocious violations of human rights? Is there any principle of international law, or law of comity, which requires it? Are our courts bound, and if not, are they at liberty, to give effect here to the slave trade e laws of a foreign nation; to laws affecting strangers, never domiciled there, when, to give them such effect, would be to violate the natural rights of men?
These questions are answered in the negative by all the most approved writers on the laws of nations. 1 Burg. Confl. 741; Story, Confl. 92. By the law of France, the slaves of their colonies, immediately on their arrival in France, become free. In the case of [40 U.S. 518, 554] Forbes v. Cochrane, 2 Barn. & Cres. 463, this question is elaborately discussed and settled by the English court of king's bench. By the law of the state of New York, a foreign slave escaping into that state becomes free. And the courts of the United States, in acting upon the personal rights of men found within the jurisdiction of a free state, are bound to administer the laws as they would be administered by the state courts, in all cases in which the laws of the state do not conflict with the laws or obligations of the United States. The United States, as a nation, have prohibited the slave-trade, as inhuman and piratical, and they have no law authorizing the enslaving of its victimes. It is a maxim, to use the words of an eminent English judge, in the case of Forbes v. Cochrane, 2 Barn. & Cres. 448, 'that which is called comitas inter communitates, cannot prevail in any case, where it violates the law of our own country, the law of nature, or the law of God.' 9 Eng. C. L. 149. And that the laws of a nation, proprio vigore, have no force beyond its own territories, except so far as respects its own citizens, who owe it allegiance, is too familiarly settled, to need the citation of authorities. See The Apollon, 9 Wheat. 366; 2 Mason 151-8. The rules on this subject adopted in the English court of admiralty are the same which prevail in their courts of common law, though they have decided in the case of The Louis, 2 Dods. 238, as the supreme court did in the case of The Antelope, 10 Wheat. 66, that as the slave-trade was not, at that time, prohibited by the law of nations, if a foreign slaver was captured by an English ship, it was a wrongful act, which it would be the duty of the court of admiralty to repair, by restoring the possession. The principle of amoveas manus, adopted in these cases, has no application to the case of fugitives from slavery.
But it is claimed, that if these Africans, though 'recently imported into Cuba,' were, by the laws of Spain, the property of Ruiz and Montez, the government of the United States is bound by the treaty to restore them; and that, therefore, the intervention of the executive in these proceedings is proper for that purpose. It has already, it is believed, been shown, that even if the case were within the treaty, the intervention of the executive, as a party before the judicial tribunals, was unnecessary and improper, [40 U.S. 518, 555] since the treaty provides for its own execution by the courts, on the application of the parties in interest. And such a resort is expressly provided in the 20th article of the treaty of 1794 with Great Britain, and in the 26th article of the treaty of 1801, with the French republic, both of which are in other respects similar to the 9th article of the Spanish treaty, on which the attorney-general has principally relied.
The 6th article of the Spanish treaty has received a judicial construction in the case of The Santissima Trinidad, 7 Wheat. 284, where it was decided, that the obligation assumed is simply that of protecting belligerent vessels from capture, within our jurisdiction. It can have no application, therefore, to a case like the present. The 9th article of that treaty provides, 'that all ships and merchandize, of what nature soever, which shall be rescued out of the hands of 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 proprietors, as soon as due and sufficient proof shall be made concerning the property thereof.' To render this clause of the treaty applicable to the case under consideration, it must be assumed, that under the term 'merchandize' the contracting parties intended to include slaves; and that slaves, themselves the recent victims of piracy, who by a successful revolt, have achieved their deliverance from slavery, on the high seas, and have availed themselves of the means of escape of which they have thus acquired the possession, are to be deemed 'pirates and robbers,' 'from whose hands' such 'merchandize has been rescued.' It is believed, that such a construction of the words of the treaty is not in accordance with the rules of interpretation which ought to govern our courts; and that when there is no special reference to human beings, as property, who are not acknowledged as such by the law or comity of nations, generally, but only by the municipal laws of the particular nations which tolerate slavery, it cannot be presumed, that the contracting parties intended to include them under the general term 'merchandize.' As has already been remarked, it may well be doubted, [40 U.S. 518, 556] whether such a stipulation would be within the treaty-making power of the United States. It is to be remembered, that the government of the United States is based on the principles promulgated in the Declaration of Independence, by the congress of 1776; 'that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness; and that to secure these rights, governments are instituted.'
The convention which formed the federal constitution, though they recognised slavery as existing in regard to persons held to labor by the laws of the states which tolerated it, were careful to exclude from that instrument every expression that might be construed into an admission that there could be property in men. It appears by the report of the proceedings of the convention (3 Madison Papers 1428), that the first clause of 9, art. 1, which provides for the imposition of a tax or duty on the importation of such persons as any of the states, then existing, might think proper to admit, &c., 'not exceeding ten dollars for each person,' was adopted in its present form, in consequence of the opposition by Roger Sherman and James Madison to the clause as it was originally reported, on the ground, 'that it admitted, that there could be property in men;' an idea which Mr. Madison said, 'he thought it wrong to admit in the constitution.' The words reported by the committee, and stricken out on this objection, were: 'a tax or duty may be imposed on such migration or importation, at a rate not exceeding the average of the duties laid upon imports.' The constitution as it now stands will be searched in vain for an expression recognising human beings as merchandize, or legitimate subjects of commerce. In the case of New York v. Miln, 11 Pet. 104, 136, Judge BARBOUR, in giving the opinion of the court, expressly declares, in reference to the power 'to regulate commerce' conferred on congress by the constitution, that 'persons are not the subjects of commerce.' Judging from the public sentiment which prevailed at the time of the adoption of the constitution, it is probable, that the first act of the government, in the exercise of its power to regulate commerce, would have been to prohibit the slave-trade, if the had not been restrained, until 1808, from prohibiting the importation of such persons as any of the states, [40 U.S. 518, 557] then existing, should think proper to admit. But could congress have passed an act authorizing the importation of slaves as articles of commerce, into any state, in opposition to a law of the state, prohibiting their introduction? If they could, they may now force slavery into every state. For no state can prohibit the introduction of legitimate objects of foreign commerce, when authorized by congress. The United States must be regarded as comprehending free states as well as slave states; states which do not recognise slaves as property, as well as states which do so regard them. When all speak as a nation, general expressions ought to be construed to mean what all understand to be included in them; at all events, what may be included consistently with the law of nations.
The ninth article of the Spanish treaty was copied from the 16th article of the treaty with France, concluded in 1778, in the midst of the war of the revolution, in which the great principles of liberty proclaimed in the Declaration of Independence were vindicated by our fathers. By 'merchandize rescued from pirates,' the contracting parties must have had in view property, which it would be the duty of the public ships of the United States to rescue from its unlawful possessors. Because, if it is taken from those who are rightfully in possession, the capture would be wrongful, and it would be our duty to restore it. But is it a duty which our naval officers owe to a nation tolerating the slave-trade, to subdue for their kidnappers the revolted victims of their cruelty? Could the people of the United States, consistently with their principles as a nation, have ever consented to a treaty stipulation which would impose such a duty on our naval officers? a duty which would drive every citizen of a free state from the service of his country? Has our government, which has been so cautious as not to oblige itself to surrender the most atrocious criminals, who have sought an asylum in the United States, bound itself, under the term 'merchandize,' to seize and surrender fugitive slaves?
The subject of the delivery of fugitives was under consideration before and during the negotiation of the treaty of San Lorenzo; and was purposely omitted in the treaty: 10, Waite's State Papers, 151, 433. Our treaties with Tunis and Algiers contain similar expressions, in which both parties stipulate [40 U.S. 518, 558] for the protection of the property of the subjects of each, within the jurisdiction of the other. The Algerine regarded his Spanish captive as property; but was it ever supposed, that if an Algerine corsair should be seized by the captive slaves on board of her, it would be the duty of our naval officers, or our courts of admiralty, to re-capture and restore them? The phraseology of the entire article in the treaty, clearly shows that it was intended to apply only to inanimate things, or irrational animals; such as are universally regarded as property. It is 'merchandize rescued from the hands of pirates and robbers on the high seas' that is to be restored. There is no provision for the surrender of the pirates themselves. And the reason is, because the article has reference only to those who are 'hostes humani generis,' whom it is lawful for, and the duty of, all nations to capture and to punish. If these Africans were 'pirates' or sea robbers, whom our naval officers might lawfully seize, it would be our duty to detain them for punishment; and then what would become of the 'merchandize?'
But they were not pirates, nor in any sense hostes humani generis. Cinque, the master-spirit who guided them, had a single object in view. That object was-not piracy or robbery-but the deliverance of himself and his companions in suffering, from unlawful bondage. They owed no allegiance to Spain. They were on board of the Amistad, by constraint. Their object was to free themselves from the fetters that bound them, in order that they might return to their kindred and their home. In so doing, they were guilty of no crime, for which they could be held responsible as pirates. See Bee 273. Suppose, they had been impressed American seamen, who had regained their liberty in a similar manner, would they in that case have been deemed guilty of piracy and murder? Not! in the opinion of Chief Justice MARSHALL. In his celebrated speech in justification of the surrender by President Adams of Nash, under the British treaty, he says: 'Had Thomas Nash been an impressed American, the homicide on board the Hermione would most certainly not have been murder. The act of impressing a American is an act of lawless violence. The confinement on board a vessel is a continuation of that violence, and an additional outrage. Death [40 U.S. 518, 559] committed within the United States, in resisting such violence, would not have been murder.' Bee 290.
The United States, as a nation, is to be regarded as a free state. And all men being presumptively free, when 'merchandize' is spoken of in the treaty of a free state, it cannot be presumed, that human beings are intended to be included as such. Hence, whenever our government have intended to speak of negroes as property, in their treaties, they have been specifically mentioned, as in the treaties with Great Britain of 1783 and 1814. It was on the same principle, that Judge DRAYTON, of South Carolina, decided, in the case of Almeida, who had captured, during the last war, an English vessel with slaves, that the word 'property' in the prize act, did not include negroes, and that they must be regarded as prisoners of war, and not sold or distributed as merchandize. 5 Hall's Law Jour. 459. And it was for the same reason, that it was deemed necessary, in the constitution, to insert an express stipulation in regard to fugitives from service. The law of comity would have obliged each state to protect and restore property belonging to a citizen of another, without such stipulation; but it would not have required the restoration of fugitive slaves from a sister state, unless they had been expressly mentioned.
In the interpretation of treaties, we ought always to give such a construction to the words as is most consistent with the customary use of language; most suitable to the subject, and to the legitimate powers of the contracting parties; most conformable to the declared principles of the government; such a construction as will not lead to injustice to others, or in any way violate the laws of nature. These are, in substance, the rules of interpretation as given by Vattel, lib. 2, ch. 17. The construction claimed in behalf of the Spanish libellants, in the present case, is at war with them all.
It would be singular, indeed, if the tribunals of a government which has declared the slave-trade piracy, and has bound itself by a solemn treaty with Great Britain, in 1814, to make continued efforts 'to promote its entire abolition, as a traffic irreconcilable with the principles of humanity and justice,' should construe the general expressions of a treaty which, since that period, [40 U.S. 518, 560] has been revised by the contracting parties, as obliging this nation to commit the injustice of treating as property, the recent victims of this horrid traffic; more especially, when it is borne in mind, that the government of Spain, anterior to the revision of the treaty in 1819, had formally notified our government, that Africans were no longer the legitimate objects of trade; with a declaration that 'His Majesty felt confident that a measure so completely in harmony with the sentiments of this government, and of all the inhabitants of this republic, could not fail to be equally agreeable to the president.' Doc. 48, 2 sess. 16 Cong. p. 8. Would the people of the United States, in 1819, have assented to such a treaty? Would it not have furnished just ground of complaint by Great Britain, as a violation of the 10th article of the treaty of Ghent?
But even if the treaty, in its terms, were such as to oblige us to violate towards strangers the immutable laws of justice, it would, according to Vattel, impose no obligation. Vattel, c. 1, 9; lib. 2, c. 12, 161; c. 17, 311. The law of nature and the law of nations bind us as effectually to render justice to the African, as the treaty can to the Spaniard. Before a foreign tribunal, the parties litigating the question of freedom or slavery, stand on equal ground. And in a case like this, where it is admitted, that the Africans were recently imported, and consequently, never domiciled in Cuba, and owe no allegiance to its laws, their rights are to be determined by that law which is of universal obligation-the law of nature. I f, indeed, the vessel in which they sailed had been driven upon our coast by stress of weather, or other unavoidable cause, and they had arrived here, in the actual possession of their alleged owners, and had been slaves by the law of the country from which they sailed, and where they were domiciled, it would have been a very different question, whether the courts of the United States could interfere to liberate them, as was done at Bermuda by the colonial tribunal, in the case of The Enterprise. But in this case, there has been no possession of these Africans by their claimants, within our jurisdiction, of which they have been deprived, by the act of our government or its officers; and neither by the law of comity, nor by force of the treaty, are the [40 U.S. 518, 561] officers or courts of the United States required, or by the principles of our government permitted, to become actors in reducing them to slavery.
These preliminary questions have been made on account of the important principles involved in them, and not from any unwillingness to meet the question between the Africans and their claimants, upon the facts in evidence, and on those alone, to vindicate their claims to freedom. Suppose, then, the case to be properly here; and that Ruiz and Montez, unprejudiced by the decree of the court below, were at liberty to take issue with the Africans upon their answer, and to call upon this court to determine the question of liberty or property, how stands the case on the evidence before the court?
The Africans, when found by Lieutenant Gedney, were in a free state, where all men are presumed to be free, and were in the actual condition of freemen. The burden of proof, therefore, rests on those who assert them to be slaves. 10 Wheat. 66; 2 Mason 459. When they call on the courts of the United States to reduce to slavery men who are apparently free, they must show some law, having force in the place where they were taken, which makes them slaves, or that the claimants are entitled in our courts to have some foreign law, obligatory on the Africans as well as on the claimants, enforced in respect to them, and that by such foreign law they are slaves. It is not pretended, that there was any law existing in the place where they were found, which made them slaves, but it is claimed, that by the laws of Cuba, they were slaves to Ruiz and Montez; and that those laws are to be here enforced. But before the laws of Cuba, if any such there be, can be applied, to affect the personal status of individuals within a foreign jurisdiction, it is very clear, that it must be shown that they were domiciled in Cuba.
It is admitted and proved, in this case, that these negroes are natives of Africa, and recently imported into Cuba. Their domicile of origin is, consequently, the place of their birth, in Africa. And the presumption of law is, always, that the domicile of origin is retained, until the change is proved. 1 Burge's Conflict 34. [40 U.S. 518, 562] The burden of proving the change is cast on him who alleges it. 5 Ves. 787. The domicile of origin prevails, until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicile, and acquiring another, as his sole domicile. As it is the will or intention of the party which alone determines what is the real place of domicile which he has chosen, it follows, that a former domicile is not abandoned, by residence in another, if that residence be not voluntarily chosen. Those who are in exile, or in prison, as they are never presumed to have abandoned all hope of return, retain their former domicile. 1 Burge 46. That these victims of fraud and piracy-husbands torn from their wives and families-children from their parents and kindred- neither intended to abandon the land of their nativity, nor had lost all hope of recovering it, sufficiently appears from the facts on this record. It cannot, surely, be claimed, that a residence, under such circumstances, of these helpless beings, for ten days, in a slave barracoon, before hey were transferred to the Amistad, changed their native domicile for that of Cuba.
It is not only incumbent on the claimants to prove that the Africans are domiciled in Cuba, and subject to its laws, but they must show that some law existed there, by which 'recently imported Africans' can be lawfully held in slavery. Such a law is not to be presumed, but the contrary. Comity would seem to require of us to presume, that a traffic so abhorrent to the feelings of the whole civilized world, is not lawful in Cuba. These respondents having been born free, and having been recently imported into Cuba, have a right to be everywhere regarded as free, until some law obligatory on them is produced, authorizing their enslavement. Neither the law of nature, nor the law of nations, authorizes the slave- trade; although it was holden in the case of The Antelope, that the law of nations did not at that time actually prohibit it. If they are slaves, then, it must be by some positive law of Spain, existing at the time of their recent importation. No such law is exhibited. On the contrary, it is proved by the deposition of Dr. Madden, one of the British commissioners resident at Havana, that since the year 1820, there has been no such law in force there, either statute or common law. [40 U.S. 518, 563] But we do not rest the case here. We are willing to assume the burden of proof. On the 14th of May 1818, the Spanish government, by their minister, announced to the government of the United States, that the slave- trade was prohibited by Spain; and by express command of the king of Spain, Don Onis communicated to the president of the United States, the treaty with Great Britain of September 23d, 1817, by which the king of Spain, moved partly by motives of humanity, and partly in consideration of 400, 000l. sterling, paid to him by the British government, for the accomplishment of so desirable an object, engaged that the slave-trade should be abolished throughout the dominions of Spain, on the 30th May 1820. By the ordinance of the king of Spain, of December 1817, it is directed, that every African imported into any of the colonies of Spain, in violation of the treaty, shall be declared free in the first port at which he shall arrive. By the treaty between Great Britain and Spain, of the 28th of June 1835, which is declared to be made for the purpose of 'rendering the means taken for abolishing the inhuman traffic is slaves more effective,' and to be in the spirit of the treaty contracted between both powers on the 23d of September 1817, 'the slave-trade is again declared, on the part of Spain, to be henceforward totally and finally abolished, in all parts of the world.' And by the royal ordinance of November 2d, 1838, the governor and the naval officers having command on the coast of Cuba, are stimulated to greater vigilance to suppress it.
Such, then, being the laws in force in all the dominions of Spain, and such the conceded facts in regard to the nativity and recent importation of these Africans, upon what plausible ground can it be claimed by the government of the United States, that they were slaves in the island of Cuba, and are here to be treated as property, and not as human beings? The only evidence exhibited to prove them slaves, are the papers of the Amistad, giving to Jose Ruiz permission to transport forty- nine ladinos belonging to him, from Havana to Puerto Principe; and a like permit to Pedro Montez, to transport three ladinos. For one of the four Africans, claimed by Montez (the boy Ka-le), there is no permit at all.
It has been said in an official opinion by the late attorney-general [40 U.S. 518, 564] (Mr. Grundy), that 'as this vessel cleared out from one Spanish port to another Spanish port, with papers regularly authenticated by the proper officers at Havana, evidencing that these negroes were slaves, and that the destination of the vessel was to another Spanish port, the government of the United States would not be authorized to go into an investigation for the purpose of ascertaining whether the facts stated in those papers by the Spanish officers are true or not'-'that if it were to permit itself to go behind the papers of the schooner Amistad, it would place itself in the embarrassing condition of judging upon Spanish laws, their force, effect and application to the case under consideration.' In support of this opinion, a reference is made to the opinion of this court, in the case of Arredondo, 6 Pet. 729, where it is stated to be 'a universal principle, that where power or jurisdiction is delegated to any public officer or tribunal over a subject-matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject-matter; and individual rights will not be disturbed collaterally, for anything done in the exercise of that discretion within the authority conferred. The only questions which can arise between an individual claiming a right under the acts done, and the public, or any person denying its validity, are power in the officer, and fraud in the party.' The principle thus stated, was applicable to the case then before the court, which related to the validity of a grant made by a public officer; but it does not tend to support the position for which it is cited in the present case. For, in the first place, there was no jurisdiction over these newly-imported Africans, by the laws of Spain, to make them slaves, any more than if they had been white men. The ordinance of the king declared them free. Secondly, there was no intentional exercise of jurisdiction over them for such a purpose, by the officer who granted the permits. And thirdly, the permits were fraudulently obtained, and fraudulently used, by the parties claiming to take benefit of them. For the purposes for which they are attempted to be applied, the permits are as inoperative as would be a grant from a public officer, fraudulently obtained, where the state had no title to the thing granted, and the officer no authority to issue the grant. See 6 Pet. 730; 5 Wheat. 303. [40 U.S. 518, 565] But it is said, we have no right to place ourselves in the position of judging upon the Spanish laws. How can our courts do otherwise, when Spanish subjects call upon them to enforce rights which, if they exist at all, must exist by force of Spanish laws? For what purpose did the government of Spain communicate to the government of the United States, the fact of the prohibition of the slave-trade, unless it was, that it might be known and acted upon by our courts? Suppose, the permits to Ruiz and Montez had been granted for the express purpose of consigning to perpetual slavery, these recent victims of this prohibited trade, could the government of Spain now ask the government or the courts of the United States, to give validity to the acts of a colonial officer, in direct violation of that prohibition; and thus make us aiders and abetters in what we know to be an atrocious wrong? It may be admitted, that even after such an annunciation, our cruisers could not lawfully seize a Spanish slaver, cleared out as such by the governor of Cuba; but if the Africans on board of her could effect their own deliverance, and reach our shores, has not the government of Spain authorized us to treat them with hospitality, as freemen? Could the Spanish minister, without offence, ask the government of the United States to seize these victims of fraud and felony, and treat them as property, because a colonial governor had thought proper to violate the ordinance of his king, in granting a permit to a slaver?
But in this case, we make no charge upon the governor of Cuba. A fraud upon him is proved to have been practised by Ruiz and Montez. He never undertook to assume jurisdiction over these Africans as slaves, or to decide any question in regard to them. He simply issued, on the application of Ruiz and Montez, passports for ladino slaves from Havana to Puerto Principe. When, under color of those passports, they fraudulently put on board the Amistad, Bozals, who by the laws of Spain could not be slaves, we surely manifest no disrespect to the acts of the governor, by giving efficacy to the laws of Spain, and denying to Ruiz and Montez the benefit of their fraud. The custom-house license, to which the name of Espeleta in print was appended, was not a document given or intended to be used as evidence of property between Ruiz and Montez, and the [40 U.S. 518, 566] Africans; any more than a permit from our custom-house would be to settle conflicting claims of ownership to the articles contained in the manifest. As between the government and the shippers, it would be evidence, if the negroes described in the passport were actually put on board, and were, in truth, the property of Ruiz and Montez, that they were legally shipped; that the custom-house forms had been complied with; and nothing more. But in view of facts as they appear, and are admitted in the present case, the passports seem to have been obtained by Ruiz and Montez, only as a part of the necessary machinery for the completion of a slave-voyage. The evidence tends strongly to prove, that Ruiz, at least, was concerned in the importation of these Africans, and that the re-shipment of them, under color of passports obtained for ladinos, as the property of Ruiz and Montez, in connection with the false representation on the papers of the schooner, that they were 'passengers for the government,' was an artifice resorted to by these slave-traders, for the double purpose of evading the scrutiny of British cruisers, and legalizing the transfer of their victims to the place of their ultimate destination. It is a remarkable circumstance, that though more than a year has elapsed, since the decree of the district court denying the title of Ruis and Montez, and pronouncing the Africans free, not a particle of evidence has since been produced in support of their claims. And yet, strange as it may seem, during all this time, not only the sympathies of the Spanish minister, but the powerful aid of our own government have been enlisted in their behalf!
It was the purpose of the reporter to insert the able and interesting argument of Mr. Adams, for the African appellees; and the publication of the 'reports' has been postponed in the hope of obtaining it, prepared by himself. It has not been received. As many of the points presented by Mr. Adams, in the discussion of the cause, were not considered by the court essential to its decision: and were not taken notice of in the opinion of the court, delivered by Mr. Justice STORY, the necessary omission of the argument is submitted to with less regret. [40 U.S. 518, 567] Gilpin, Attorney-General in reply.-The judiciary act, which gives to this court its powers, so far as they depend on the legislature, directs that, on an appeal from the decree of an inferior court, this court shall render such judgment as the court below did, or should have rendered. It is to obtain from it such a decree in this case, that the United States present themselves here as appellants.
At the threshold of their application, the right so to present themselves is denied. They are to be turned away, as suitors having no claim to such interposition. The argument has gone a step farther; it seems now to be contended, that their appearance in the court below, which was not then objected to, is to be regarded as destitute of right, equally with their present appearance here. They are not even mere interlopers, seeking justice without warrant; they are dictators, in the form of supplicants, and their suggestions to the court, and their application for its judgment, upon solemn and important questions of fact, are distorted by an ingenious logic, which it is difficult to follow. Applications, made without the slightest expression of a wish, except to obtain that judgment, and in a form which, it might be supposed, would secure admission into any court, are repudiated, under the harsh name of 'executive interference.' Yet in what single respect do the facts of this case sustain such allegations? How can it be justly said, that there has been any 'executive interference,' not resulting from the adoption of that course which public duty made incumbent; and conducted in the manner, and in that manner only, which was required by that sense of public duty, from which, no officer, possessing a due regard for the obligations of his trust, will ever shrink?
In what situation is the case, when it is first presented to the notice of the government of the United States? On nearly, if not exactly, the same day, that the secretary of state receives from the minister of Spain an official communication, dated at New York, and stating the facts connected with the schooner L'Amistad, then just brought within the territory of the United States; stating also, that the vessel is a Spanish vessel, laden with merchandize, and with sundry negro slaves on board, accompanied with all the documents required by the laws of Spain, for navigating a vessel, and for proving ownership of [40 U.S. 518, 568] property; and then making an application to the government of the United States to interpose, so that the property thus within our territory, might be restored to its owners pursuant to the treaty; and asserting also, that the negroes, who were guilty, as he contended, of a crime for which they ought to be punished, ought to be delivered up on that account, too, pursuant to the law of nations-on or about the same day, the letter of the district-attorney, which, though dated a day earlier, is written in Connecticut, also reaches the department of state, conveying the information that this same property and these same negroes are already within the custody and authority of the judicial tribunals of the United States, by virtue of process, civil and criminal, issued by a judge of the United States, after solemn and deliberate inquiry. The vessel, the cargo and the negroes, had been all taken possession of, by a warrant issued by the court, 'as property;' they were then, at that very time, in the custody, keeping and possession of the court, as property, without the slightest suggestion having been made by the executive branch of the government, or even a knowledge of the fact on its part; and when its interposition is formally solicited, its first information relative to the case received, it finds the subject of the demand already under the control of the judicial branch.
In this situation, the executive government, thus appealed to, and thus informed, looks to its treaty stipulations, the most solemn and binding compacts that nations know among each other, and the obligations of which can never be treated lightly, so long as good faith forms the first duty of every community. Those stipulations, entered into in 1795 (1 Laws U. S. 266), provide, in the first place (article 6), that each party to the treaty, the United States and Spain, shall 'endeavor, by all means in their power, to protect and defend and vessels and other effects belonging to the citizens or subjects of the other, which shall be within the extent of the jurisdiction.' Again, in the eighth article, it is declared, that 'in case the subjects or inhabitants of either country shall, with their shipping, he forced, through stress of weather, or any other urgent necessity for seeking shelter, to enter any port of the other, they shall enjoy all favor, protection and help.' Again, in the ninth article, it is provided, that 'all ships and merchandize, of what nature soever, [40 U.S. 518, 569] 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 into the custody of the officers of that port, in order to be taken care of, and restored entire to the true proprietor, as soon as due and sufficient proof shall be made concerning the property thereof.' In the 16th article, it is further declared, that the liberty of navigation and commerce meant by the treaty, shall extend to all kinds of merchandize, excepting those only which are contraband, and they are expressly enumerated; and it the 22d article, the object of the treaty is declared to be 'the extension of mutual commerce.' When these stipulations were thus made, slaves were a notorious article of merchandize and traffic in each country; not only were they so in the United States, but there was a constitutional provision, prohibiting congress from interfering to prevent their importation, as such, from abroad. This treaty, with these provisions thus solemnly and carefully framed, was renewed in 1819; was declared to be still in existence and force. It is declared (7 Laws U. S. 624), that every one of the articles above quoted 'remains confirmed.' It stands exactly as it stood in 1795; and, in the year 1821, after both governments had abolished the slave-trade, the provisions adopted in 1795 are thus, as to 'every clause and article thereof,' so renewed, solemnly ratified and confirmed by the president and senate of the United States. No clause is introduced to vary the nature or character of the merchandize; none to lessen or change the obligations, as would have been the case, had any such change been contemplated; but the two treaties, having the final date of 1821, bear the character of a single instrument.
Now, these are stipulations too clear to be misunderstood; too imperative to be wantonly neglected. Could we not ask of Spain the fulfillment of every one of them towards our own citizens? If so, were we not bound, at least, to see that, through some public functionary, or by some means in which nations fulfill mutual obligations, they were performed by us to the subjects of Spain, whenever the casus foederis should arise? Did it arise in this case? Here were, unquestionably, as the representative of Spain believed and stated, a vessel and effects [40 U.S. 518, 570] of subjects of that country, within our jurisdiction; here was a vessel and merchandize, rescued, as he alleged, from the hands of robbers, brought into one of our ports, and already in the custody of public officers. Did not a treaty stipulation require the United States to 'endeavor by all means in their power to protect and defend this property?' Did not a treaty stipulation require us to 'extend to them all favor, protection and help?' Did not a treaty stipulation bind us to 'restore, entire, the property, to the true proprietors, as soon as due and sufficient proof should be made concerning the same?' If not, then is there no force and meaning in language; and the words of solemn treaties are an idle breath, of which nations may be as regardless as of the passing wind.
The case then had arisen, where it was the duty of the United States, as parties to this treaty, to interfere and see that its stipulations were performed. How were they to interfere? Certainly, at the instance of the executive, through the medium of the judiciary, in whose custody and under whose control the property claimed already was. The questions incident to due and sufficient proof of property are clearly judicial questions; but when that property is already in the custody and under the jurisdiction of a court, they are so, from necessity, as it is desirable they always should be, from choice. This position, never denied, was eloquently urged by the counsel of these negroes, when they first addressed the executive on the subject (Cong. Doc. No. 185, p. 64), and to that view they added the request that he 'would submit the question for adjudication to the tribunals of the land.' He did so! He interposed, at the instance of the Spanish minister, to fulfill a treaty stipulation, by causing a suggestion to be filed in the court which had already taken cognisance of the subject- matter, and which had the property in its custody. That suggestion stated the allegation of the Spanish minister, that this was property which ought to be restored under the treaty; prayed in effect an inquiry of the court into that fact; and requested such a decree, after such inquiry, as might enable the United States, as a nation, to fulfill their treaty obligations to the Spanish nation. This has been called 'executive interference' and 'executive dictation.' To answer such a charge in [40 U.S. 518, 571] any other way than by appealing to the facts, would be to trespass on the patience of the court.
As if such charges were felt to be insufficient, an attempt is made, by argument, to prove that the government of the United States had no right thus to interpose-no right to make this suggestion to the district court. And why not? It is said, because there is no law giving this power, and it cannot be implied; because in a question of private property, it must be left to the parties alone to prosecute their rights, and the parties in this case were already doing so for themselves; and because it was an interference and encroachment of the executive on the province of the court, not sanctioned by any precedent. These are the grounds that have been taken, and it might be sufficient to say, that although every one of them existed in as full force, when the case was tried in the district court, none of them were there taken; although every one of them was known, before the plea and answer of the respondents, they started none of these objections. After the decree and judgment of the court below, it is too late to start them. But there is nothing in them, whenever made.
I. The executive government was bound to take the proper steps for having the treaty executed, and these were the proper steps. A treaty is the supreme law; the executive duty is especially to take care that the laws be faithfully executed; no branch of this duty is more usual or apparent, than that which is executed in connection with the proceedings and decrees of courts. What special assignment, by act of congress, has been made of the executive duties, in the fulfillment of laws, through the decrees and judgments of the judiciary? Yet it is matter of daily occurrence. What gives the district-attorney a right to file his libel against a package of goods, which the law says shall be forfeited, on proof being made that they are falsely invoiced, any more than to file his libel against a vessel and her cargo, which a treaty (a still higher law) declares shall be restored, on proof concerning the property thereof? In the one case, it is the execution of a law, by an executive officer, through the medium or in connection with the courts; in the other case, it is the execution of a treaty in a similar manner. But in the latter, the duty is, if possible, more imperative, since the execution of treaties, [40 U.S. 518, 572] being connected with public and foreign relations, is devolved upon the executive branch. These principles are clearly stated by this court in the case of The Peggy, 1 Cranch 103; and more fully in that of Williams v. Suffolk Insurance Company, 13 Pet. 420.
As to its being a question of private property, which the parties might themselves prosecute, it is not perceived how this impairs the right, or even lessens the obligation, of the United States to interfere, to the extent and in the manner they did, especially, when solicited by the minister representing these parties; they appear on behalf, or at the instance, of a foreign sovereignty in alliance with them, which assumes itself the rights and interests of the parties; those parties withdraw, as this record expressly shows, when they so appear; no act of theirs occurs, after the interposition of the United States, at the instance of the Spanish minister, and it is expressly stated, that they so withdrew, because their claims were merged in that which was thus presented. This appearance of the United States is not, as has been argued, a substitution of themselves as parties in interest; it is a substitution, under a treaty obligation; a substitution assumed in their public character to perform a public duty, by means of which the further prosecution of the individuals is (as the treaty intended it should be) rendered unnecessary. Besides, what is there to show that all the parties having an interest in this property were before the court? It is nowhere so stated; and if they were not, the objections totally fail.
Continued inPart III, U.S. Supreme Court Decision in the Amistad Case
Return to Part I, U.S. Supreme Court Decision in the Amistad Case
