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Adams, John Quincy. Argument Before the Supreme Court of the United States in the Case of the United States, Appellants, vs. Cinque and Other Africans Captured in the Schooner Amistad (Delivered 24 Feb. and 1 Mar. 1841). New York: W. W. Benedict, 1841.
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___________________________
ARGUMENT
OF
JOHN QUINCY ADAMS,
BEFORE THE
SUPREME COURT OF THE UNITED STATES,
IN THE CASE OF THE
UNITED STATES, APPELLANTS,
vs.
CINQUE, AND OTHERS, AFRICANS,
CAPTURED IN THE SCHOONER AMISTAD, BY LIEUT. GEDNEY,
DELIVERED ON THE 24th OF FEBRUARY AND lst OF MARCH, 1841.
WITH A REVIEW OF THE CASE OF THE ANTELOPE,
REPORTED IN THE 10th, 11th and 12th VOLUMES OF WHEATON'S REPORTS.
____________
NEW YORK: S.W. BENEDICT, 128 FULTON STREET
1841.
_____________________
I.
MAY IT PLEASE YOUR HONORS–
In rising to address this Court as one of its attorneys and counselors, regularly admitted at a great distance of time, I feel that an apology might well be expected where I shall perhaps be more likely to exhibit at once the 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 argument on the merits of the question.
I therefore proceed immediately to say that, in a consideration of this case, I derive, in the distress I feel both for myself and my clients, consolation from two sources–first, that the rights of my clients to their lives and liberties have already been defended by my learned friend and colleague in so able and complete a manner as leaves me scarcely anything to say, and I feel that such full justice has been done to their interests, that any fault or imperfection of mine will merely be attributed to its true cause; and secondly, I derive consolation from the thought that this Court is a Court of JUSTICE. And in saying so very trivial a thing, I should not on any other occasion, perhaps, be warranted in asking the Court to consider what justice is. Justice, as de
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 SUUM cuigue tribuendi."
"The constant and perpetual will to secure to every one HIS OWN right."
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And in a Court of Justice, where there are two parties present, justice demands that the rights of each party should be allowed to himself, as well as that each party has a right, to be secured and protected by the Court. This observation is important, because I appear here on the behalf of thirty-six individuals, the life and liberty of every one of whom depend on the decision of this Court. The Court, therefore, I trust, in deciding this case, will form no lumping judgment on these thirty-six individuals, but will act on the consideration that the life and the liberty of every one of them must be determined by its decision for himself alone.
They are here, individually, under very different circumstances, and in very different characters. Some are in one predicament, some in another. In some of the proceedings by which they have been brought into the custody and under the protection of this Court, thirty-two or three of them have been charged with the crime of murder. Three or four of them are female children, incapable, 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. 1 trust, therefore, that before the ultimate decision of this Court is established, its honorable members will pay due attention to the circumstances and condition of every individual concerned.
When I say I derive consolation from the consideration that I stand before a Court of Justice, I am obliged to take this ground, because, as I shall show, another Department of the Government of the United States has taken, with reference to this case, the ground of utter injustice, and these individuals for whom I appear, stand before this Court, awaiting their fate from its decision, under the array of the whole Executive power of this nation against them, in addition to that of a foreign nation. And here arises a consideration, the most painful of all others, in considering the duty I have to discharge, in which, in supporting the motion to dismiss the appeal, I shall be obliged not only to investigate and submit to the censure of this Court, the form and manner of the proceedings of the Executive in this case, but the validity, and the motive of the reasons assigned for its interference in this unusual manner in a suit between parties for their individual rights.
At an early period of my life it was my fortune to witness the representation upon the stage of one of the tragic masterpieces of the great Dramatist of England, or I may rather say of the great Dramatist of the world, and in that scene which exhibits in action the sudden, the instantaneous fall from unbounded power into irretrievable disgrace of Cardinal Wolsey, by the abrupt declaration of displeasure and dismission from the service of his King, made by that monarch in the presence of Lord Surry and of the Lord Chamberlain; at the moment of Wolsey's humiliation and distress, Surry gives vent to his long suppressed resentments for the insolence and injuries which he had endured from the fallen favorite while in power, and breaks out into insulting and bitter reproaches, till checked by the Chamberlain, who says:
"Oh! my Lords; Press not a falling man too far: 'tis VIRTUE,"
The repetition of that single line, in the relative position of the parties, struck me as a moral principle, and made upon my mind an impression which I have carried with me through all the changes of my life, and which I trust I shall carry with me to my grave.
It is, therefore, peculiarly painful to me, under present circumstances, to be under the necessity of arraigning before this Court and before the civilized world, the course of the existing Administration in this case. But I must do it. That Government is still in power, and thus, subject to the control of the Court, the lives and liberties of all my clients are in its hands. And if I should pass over the course it has pursued, those who have not 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 defensive of the rights of my clients, I now proceed to an examination of the correspondence of the Secretary of State with the ambassador of her Catholic Majesty, as officially communicated to Congress, and published among the national documents.
The charge I make against the present Executive administration is that in all their proceedings relating to these unfortunate men, instead of that Justice, which they were bound not less than this honorable Court itself to observe, they have substituted Sympathy !–sympathy with one of the parties in this conflict of justice, and Antipathy to the other. Sympathy with the white, antipathy to the black–and in proof of this charge I adduce the admission and avowal of the Secretary of State himself. In the letter of Mr. Forsyth to the Spanish Minister d'Argaiz, of 13th of December, 1839, [Document H. R. N. S. 185,] defending the course of the administration against the reproaches utterly groundless, but not the less bitter of the Spanish Envoy, he says:
"The undersigned cannot conclude this communication without calling the attention of the Chevalier d'Argaiz to the fact, that with the single exception of the vexatious detention to which Messrs. Montes and Ruiz have been subjected in consequence of the civil suit instituted against them, all the proceedings in the matter, on the part both the Executive and Judicial branches of the government have had their foundation in the ASSUMPTION that these persons ALONE were the parties aggrieved; and that their claims to the surrender of the property was founded in fact and in justice." [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? No. It was not so considered by Mr. Forsyth himself. It was sympathy, and he so calls it, for in the preceding page of the same letter referring to the proceedings of this Government from the very first intervention of Lieut. Gedney, he says:
"Messrs. Ruiz and Montes were first found near the coast of the United States, deprived of their property and of their freedom, suffering from lawless violence in their persons, and in imminent and constant danger of being deprived of their lives also.
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They were found in this distressing and perilous situation by officers of the United States, who, moved towards them by sympathetic feeling which subsequently became, as it were national, immediately rescued them from personal danger, restored them to freedom, secured their oppressors that they might abide the consequences of the acts of violence perpetrated upon them, and placed under the safeguard of the laws all the property which they claimed as their own, to remain in safety until the competent authority could examine their title to it, and pronounce upon the quest lion 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. l hope this is not correctly represented. It is imputed to him and declared to have become in a manner national. The national sympathy with the slave-traders of the baracoons is officially declared to have been the prime motive of action of the government: And this fact is given as an answer to all the claims, demands and reproaches of the Spanish minister! I cannot urge the same objection to this that was brought against the assertion in the libel--that it said the thing which is not–-too unfortunately it was so, as he said. The sympathy of the Executive government, and as it were of the nation, in favor of the slave-traders, and against these poor, unfortunate, helpless, tongueless, defenseless Africans, was the cause and foundation and motive of all these proceedings, and has brought this case up for trial before your honors.
I do not wish to blame the first sympathies of Lieut. Gedney, nor the first action of the District and Circuit Courts. The seizure of the vessel, with the arrest and examination of the Africans, was intended for inquiry, and to lead to an investigation of the rights of all parties. This investigation has ultimated in the decision of the District Court, confirmed by the Circuit Court, which it is now the demand of the Executive should be reversed by this Court. The District Court has exercised its jurisdiction over the parties in interest, and has found that the right was with the other party, that the decisions of JUSTICE were not in accordance with the impulses of sympathy, and that consequently the sympathy was wrong before. And consequently it now appears that everything which has flowed from this mistaken or misapplied sympathy, was wrong from the beginning.
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For I inquire by what right, all this sympathy, from Lieut. Gedney to the Secretary of State, and from the Secretary of State, as it were, to the nation, was extended to the two Spaniards from Cuba exclusively, and utterly denied to the fifty-two victims of their lawless violence? By what right was it denied to the men who had restored themselves to freedom, and secured their oppressors to abide the consequences of the acts of violence perpetrated by them, and why was it extended to the perpetrators of those acts of violence themselves? When the Amistad first came within the territorial jurisdiction of the United States, acts of violence had passed between the two parties, the Spaniards and Africans on board of her, but on which side these acts were lawless, on which side were the oppressors, was a question of right and wrong, for the settlement of which, if the government and people of the United States interfered at all; they were bound in duty to extend their sympathy to them all; and if they intervened at all between them, the duty incumbent upon this intervention was not of favor, but of impartiality–not of sympathy, but of JUSTICE, dispensing to every individual his own right..
Thus the Secretary of State himself declares that the motive for all the proceedings of the government of the United States, until that time, had been governed by sympathetic feeling towards one of the parties, and by the assumption that all the right was on one side and all the wrong on the other. It was the motive of Lieut. Gedney: the same influence had prevailed even in the judicial proceedings until then: the very language of the Secretary of State in this letter breathes the same spirit as animating the executive administration, and has continued to govern all its proceedings on this subject to the present day. It is but too true that the same spirit of sympathy and antipathy has nearly pervaded the whole nation, and it is against them that I am in duty bound to call upon this Court to restrain itself in the sacred name of JUSTICE.
One of the Judges who presided in some of the preceding trials, is said to have called this an anomalous case. It is indeed anomalous, and I know of no law, but one which I am not at liberty to argue before this Court, no law, statute or constitution, no code, no treaty, applicable to the proceedings of the Executive or the Judiciary, except that law, (pointing to the copy of the Declaration of Independence, hanging against one of the pillars of the 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 provided for such a case. That law, in its application to my clients, I trust will be the law on which the case will be decided by this Court.
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In the sequel to the diplomatic correspondence between the Secretary of State and the Spanish minister Argaiz, relating to the case of the Amistad, recently communicated by the President of the United States to the Senate, [Doc. 179. 12 Feb. 1841,] the minister refers with great apparent satisfaction to certain resolutions of the Senate, adopted at the instance of Mr. Calhoun, on the 15th of April, 1840, as follows:
1. "Resolved–-That a ship or vessel on the high seas, in time of peace, engaged in a lawful voyage, is according to the laws of nations under the exclusive jurisdiction of the state to which her flag belongs as much as if constituting a part of its own domain."
2. "Resolved–-That if such ship or vessel should be forced, by stress of weather, or other unavoidable cause into the port, and under the jurisdiction of a friendly power, she and her cargo, and persons on board, with their property, and all the rights belonging to their personal relations, as established by the laws of the state to which they belong, would be placed under the protection which the laws of nations extend to the unfortunate under such circumstances."
Without entering into any discussion as to the correctness of these principles, let us admit them to be true to their fullest extent, and what is their application to the case of the Amistad. If the first of the resolutions declares a sound principle of national law, neither Lieut. Gedney, nor Lieut. Meade, nor any officer of the brig Washington had the shadow of a right even to set foot on board of the Amistad. According to the second resolution, the Africans in possession of the vessel were entitled to all the kindness and good offices due from a humane and Christian nation to the unfortunate; and if the Spaniards were entitled to the same, it was by the territorial right and jurisdiction of the State of New York and of the Union, only to the extent of liberating their persons from imprisonment. Chevalier d'Argaiz, therefore, totally misapprehends the application of the principles asserted in these resolutions of the Senate, as indeed Mr. Forsyth appears by his answer to this letter of the Chevalier to be fully aware. From the decisiveness with which on this solitary occasion he meets the pretensions of the Spanish Envoy, a fair inference may be drawn that the Secretary himself perceived that the Senatorial resolutions, instead of favoring the cause of Montes and Ruiz, have a bearing point blank against them.
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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 extended they had the power of prosecuting the voyage; the ship was theirs, and being immediate communication with the shore, was in the territory of the State of New York; or, if not; at least half the number were actually on the soil of New York, and entitled to all the provisions of the law of nations, and the protection and comfort which the laws of that State secure to every human being within its limits.
In this situation Lieut. Gedney, without any charge or authority from his government, without warrant of law, by force of fire arms, seizes and disarms them, then being in the peace of that Commonwealth and of the United States, drives them on board the vessel, seizes the vessel and transfers it against the will of its possessors to another State. I ask in the name of justice, by what law was this done? Even admitting that it had been a case of actual piracy, which your courts have properly found it was not, there are questions arising here of the deepest interest to the liberties of the people of this Union, and especially of the State of New York. Have the officers of the U. S. Navy a right to seize men by force, on the territory of New York, to fire at them, to overpower them, to disarm them, to put them on board of a vessel and carry them by force and against their will to another State, without warrant or form of law ? I am not arraigning Lieut. Gedney, but I ask this Court, in the name of justice, to settle it in their minds, by what law it was done, and how far the principle it embraces is to be carried.
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The whole of my argument to show that the appeal should be dismissed, is founded on an averment that the proceedings on the part of the United States are all wrongful from the beginning. The first act, of seizing the vessel, and these men, by an officer of the navy, was a wrong. The forcible arrest of these men, or a part of them, on the soil of New York, was a wrong. After the vessel was brought into the jurisdiction of the District Court of Connecticut, the men were first seized and imprisoned under a criminal process for murder and piracy on the high seas. Then they were libeled by Lieut. Gedney, as property, and salvage claimed on them, and under that process were taken into the custody of the marshal as property. Then they were claimed by Ruiz and Montes and again taken into custody by the court. The District Attorney of Connecticut wrote to the Secretary of State, September 5th, giving him an account of the matter, stating that " the blacks are indicted for the murder of the captain and mate," and " are now in jail at New Haven ; " that " the next term of our Circuit Court sits on the 17th instant, at which time I suppose," –that is in italics in the printed document–" I suppose it will be my duty to bring them to trial, unless they are in some other way disposed of." This is the first intimation of the District Attorney; it is easy to understand in what " other way" he wished them disposed of. And he closes by saying–" should you 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 offense these people may have committed, as it was done on board a vessel belonging to a foreign state. And then he says,
"I would respectfully inquire, sir, whether there are no treaty stipulations with the Government of Spain that would authorize our Government to deliver them up to the Spanish authorities; and if so, whether it could be done before our court sits?"
This is the second intimation from the District Attorney. We shall find others. Now it appears that the Africans were fully in the custody of the Court, first on the criminal charge, and then on the claim to them as property. The Court was to sit in eight days, the District Attorney is satisfied they cannot be tried, and 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 Honors, I am simply pursuing the chain of evidence in this case, to show the effects of the sympathy in favor of one of the parties and against the other, which the Secretary of State says had become in a manner " national." The next document is a letter of the Secretary of State to the District Attorney, Sept. 11, 1839:
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"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 addressed to this department by the minister of Her Catholic Majesty, claiming the vessel, cargo and blacks," [vessel, cargo and blacks, the Court will observe,] " on board, as Spanish property, and demanding its immediate release. Mr. Calderon's application will be immediately transmitted to the President for a decision upon it, with which you will be made acquainted without unnecessary delay. In the mean time you will take care that no proceeding of your Circuit Court, or of any other judicial tribunal, places the vessel, cargo, or slaves beyond the control of the Federal Executive.
" I am, sir, your obedient servant,
"JOHN FORSYTH."
I know not how, in decent language, to speak of this assertion
of the Secretary, that the minister of Her Catholic Majesty had claimed the Africans
"as Spanish property." In Gulliver's novels, 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 Secretary
of State, but by declaring that he "has said the thing that is not." This
I shall endeavor to prove by showing what the demand of the Spanish minister was,
and that it was a totally different thing from that which was represented.
But I wish first to beg your Honors' special attention to something else in this
remarkable letter of the Secretary of State. He says, "In the mean time, you
will take care that no proceeding of your Circuit Court, or of any other judicial
tribunal, places the vessel, cargo, or slaves beyond the control of the Federal Executive."
Here is a ministerial officer of the Executive Government, instructing the District
Attorney, before the Judiciary has acted upon the case, to take care that no proceeding
of any court places these men beyond reach of the Federal Executive. How was he to
do it? In what manner was an Executive officer to proceed, so that neither the Circuit
Court of the United States, nor any state Court, could dispose of the vessel or the
men in any manner, beyond the control of the Federal Executive. A farther examination
of the correspondence in the conclusion will show how it was intended to be done.
But I now come to inquire what was the real demand of the Spanish minister, and to
show what was the duty of the Secretary of State on receiving such a demand.
Here we have the first letter of Mr. Calderon to Mr. Forsyth.
The name of this gentleman is illustrious in the annals of Spain, and for himself personally, during his residence in this country, I have entertained the most friendly and respectful sentiments. I have enjoyed frequent interviews with him, and have found him intelligent, amiable, learned, and courteous. I wish therefore to say nothing respecting him that is personally disrespectful or unkind. But it is my duty to comment with the utmost plainness, and what perhaps your Honors will think severity, on his official letter to the American Secretary of State. His letter begins:
"NEW YORK, Sept. 6, 1839.
"The undersigned, envoy extraordinary and minister plenipotentiary of her Catholic Majesty the Queen of Spain, has the honor of calling the attention of the honorable John Forsyth, Secretary of State of the United States, to a recent and very public occurrence of which, no doubt, Mr. Forsyth is already informed, and in consequence of which it is the imperious duty of the undersigned to claim an observance of the law of nations and of the treaties existing between the United States and Spain. The occurrence alluded to is the capture of the Spanish schooner 'Amistad.'
"This vessel sailed from Havana on the 28th of June, bound to Guanaja, in the vicinity of Porto Principe, under the command of her owner, Don Ramon Ferrer, laden with sundry merchandise, and with fifty-three negro slaves on board; and, previous to her departure, she obtained her clearance (alijo ) from the custom house, the necessary permit from the authorities for the transportation of the Negroes, a passport, and all the other documents required by the laws of Spain for navigating a vessel and for proving ownership of property; a circumstance particularly important in the opinion of the undersigned."
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Here your Honors will observe the same distinction of "merchandise and negroes," which was made by the District Attorney, showing the universal sense of the difference between merchandise and persons. He goes on:
"During the night of the 30th of said month, or about daybreak on the following day, the slaves rose upon the crew, and killed the captain, a slave of his, and two sailors–sparing only two persons, after 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 affairs, and under favor of Divine Providence– 'the favor of Divine Providence!'–-succeeded in directing the vessel to these shores. He was spoken by various vessels, from the captains of which the Negroes bought provisions, but to whom, it seems, he was unable to make known his distress, being closely watched. At length, by good fortune, he reached Long Island, where the 'Amistad' was detained by the American brig-of-war 'Washington,' Captain Gedney, who, on learning the circumstances of the case, secured the negroes, and took them with the vessel to New London, in the state of Connecticut.
"The conduct of that commander and his subalterns toward the unfortunate Spaniards has been that which was to be expected from gentlemen, and from officers in the service of an enlightened nation friendly to Spain. That conduct will be appreciated as it deserves by my august sovereign, and by the Spanish government, and will be reciprocated on similar occasions by the Spaniards--a people ever grateful for benefits received. " [We shall see some proofs of Spanish gratitude, as we proceed in the case.]
" The act of humanity thus performed would have been complete, had the vessel at the same time been set at liberty, and the Negroes sent to be tried by the proper tribune], and by the violated laws of the country of which they are subjects. The undersigned is willing to believe that such would have been the case, had the general government been able to interpose its authority in the first instance, as it has probably done during the short interval between the occurrence of this affair and the period when the undersigned received an authentic statement of the facts."
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This is what the Spanish minister demanded, that the vessel should be set at liberty, and the negroes sent to Cuba to be tried. And he is so confident in the disposition the United States in favor of this demand, that he even presumes the President of the United States had already immediately dispatched an order to the Court in Connecticut, to stay its proceedings and deliver up the negroes to the Government of Spain.
What combination of ideas led to that conclusion, in the mind of Mr. Calderon, I am not competent to say. He evidently supposes the President of the United States to possess what we understand by arbitrary power--the power to decide cases and to dispose of persons and of property, mero motu, at his own discretion, and without the intervention of any court. What led him to this imagination I am unable to say. He goes on to say that the officers of the Washington, in the service of the United States, have presented to that incompetent Court,–-the U. S. District Court in Connecticut–-a petition, claiming salvage: " a claim which, in view of existing treaties, the undersigned conceives cannot be allowed in the sense in which it is made." This is that most grateful nation! The deliverers of these two Spaniards, the representative of a most grateful nation insists, are not deserving of any recompense whatever!
Now, I beg your Honors to see if there is, among all these specifications, any one demand that corresponds with that which the Secretary of State 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 capture by the Washington, without any payment being exacted on the score of salvage, or any charges made, other than those specified in the treaty of 1795, article 1st.
Yet he had already said the captain, and owner, Ferrer, was killed.
" 2d. That it be declared that no tribunal in the United States has the right to institute proceedings against, or to impose penalties upon, the subjects of Spain, for crimes committed on board a Spanish vessel, and in the waters of the Spanish territory."
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Declared, by whom? By the President of the United States. Of course, he does not demand that the "incompetent tribunal" in Connecticut, before which the suit was brought, should declare this, but that the President of the United States should issue a proclamation, declaring that no court in this country could hold cognizance of the case. Is there in this a demand that the negroes should be delivered up as Spanish property? It is a direct protest against any judicial tribunal taking cognizance of the case, and that the President should issue a proclamation to prevent any such proceedings whatever.
"3d. That the negroes be conveyed to Havana, or be placed at the disposal of the proper authorities in that part of Her Majesty's dominions, in order to their being tried by the Spanish laws which 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 United States should place himself? Is it a demand to deliver up these people as property? No. Is it that they should deliver them to the minister himself, as the representative of the Spanish government, to be disposed of according to the laws of Spain? No. It demands of the Chief Magistrate of this nation that he should first turn himself into a jailer, to keep these people safely, and then into a tipstaff to take them away for trial among the slave-traders of the baracoons. Was ever such a demand made upon any government? He must seize these people and keep them safely, and carry them, at the expense of the United States, to another country to be tried for their lives! Where in the law of nations is there a warrant for such a demand?
May it please your Honors-if the President of the United States had arbitrary and unqualified power, he could not satisfy these demands. He must keep them as a jailer; he must then send them beyond seas to be tried for their lives. I will not recur to the Declaration of Independence–-your Honors have it implanted in your hearts–-but one of the grievous charges brought against George III was that he had made laws for sending men beyond 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 it by the same authority in the case of American citizens. By a simple order to the marshal of the district, he could just as well seize forty citizens of the United States, on the demand of a foreign minister, and send them beyond seas for trial before a foreign court. The Spanish minister farther demands--
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" 4th. That if, in consequence of the intervention of the authorities of Connecticut, there should be any delay in the desired delivery of the vessel and the slaves, the owners both of the former be indemnified for the injury that may accrue to them."
Now, how are all these demands to be put together? First, he demands that the United States shall keep them safely, and send them to Cuba, all in a lump, the children as well as Cinque and Grabbo. Next, he denies the power of our courts to take any cognizance of the case. And finally, that the owners of the slaves shall be indemnified for any injury they may sustain in their property. We see in the whole of this transaction, a confusion of ideas and a contradiction of positions, from confounding together the two capacities in which these people are attempted to be held. One moment they are viewed as merchandise, and the next as persons. The Spanish minister, the Secretary of State, and every one who has had anything to do with the case, all have run into these absurdities. These demands are utterly inconsistent. First, they are demanded as persons, as the subjects of Spain, to be delivered up as criminals, to be tried for their lives, and liable to be executed on the gibbet. Then they are demanded as chattels, the same as so many bags of coffee, or bales of cotton, belonging to owners, who have a right to be indemnified for any injury to their property.
I now ask if there is, in any one or in all those specifications, that demand which
the Secretary of State avers the Spanish Minister had made, and which is the basis
of the whole proceeding in this case on the part of the Executive.
The letter of the Secretary, which is the foundation of the whole proceeding of the
District Attorney, in making the United States a party, on the ground of a demand
by the Spanish Minister for the delivery of these people as property, "says
the thing that is not." The letter proceeds:
" In support of these claims, the undersigned invokes the law of nations, the stipulations of existing treaties, and those good feelings"–[good feelings, indeed, he might well say, where all the feelings 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.
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"The undersigned would be apprehensive of offending Mr. Forsyth by supposing it in the least degree necessary to bring to his recollection his own well-known construction (disposiciones) of the law of nations, in a case analogous to the one under consideration."
This is what the logicians call argumentum ad hominem–-an appeal, first to the feelings of the individual, not to his sense of justice. He then brings up to Mr.Forsyth his own construction of the law of nations, as given in another case, which he deems analogous. Perhaps I may be justified in conjecturing to what case he alludes, and I will say that, if he alludes to any case of public notoriety, I shall be able to show, before I close, that there is no analogy to this case.
M.Calderon de la Barca then refers to several treaty stipulations in support of his demand, and particularly the 8th, 9th, and 10th articles of the treaty of 1795, continued in force by the treaty of 1819.
" Art.8. In case the subjects and inhabitants of either party, with their shipping, whether public and of war, or private and of merchants, be forced, through stress of weather, pursuit of pirates or enemies, or any other urgent necessity, for seeking of shelter and harbor, to retreat and enter into any of the rivers, bays, roads, or ports, belonging to the other party, they shall be received and treated with all humanity, and enjoy all favor, protection, and help; and they shall be permitted to refresh and provide themselves, at reasonable rates, with victuals and all things needful for the subsistence of their persons, or reparation of their ships, and prosecution of their voyage; and they shall 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 hindrance."
This is a provision for vessels with their owners, driven into port by distress. Who was the Spanish owner here with his ship ? There was none. I say the Africans were here with their ship. If you say the original owner is referred to, in whose name the ship's register was given, he was dead, he was not on board, and could not claim the benefit of this article. The vessel either be 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 faederis. The truth is, this article was not intended to apply to such a case as this, but to the common case, in regard to which it has doubtless been carried into execution hundreds of times, in meeting the common disasters of maritime life.
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The Africans, who certainly had the prima facie title to the property, did not bring the vessel into our waters themselves, but were brought here against their will by the two Spaniards, by stratagem and deception. Now, if this court should consider, as the courts below have done, that the original voyage from Lomboko, in Africa, was continued by the Spaniards in the Amistad, and that pursuing that voyage was a violation of the laws of the United States, then the Spaniards are responsible for that offense. The deed begun in Africa was not consummated according to its original intention, until the negroes were landed at their port of final destination in Porto Principe. The clandestine landing in Havana, the unlawful sale in the barracoons, the shipment on board the Amistad, were all parts of the original transaction. And it was in pursuit of that original unlawful intent that the Spaniards brought the vessel by stratagem into a port of the United States. Does the treaty apply to such voyages ? Suppose the owner had been on board, and his voyage lawful, what does the treaty secure to him? Why, that he might repair his ship, and purchase refreshments, and continue his voyage. Ruiz and Montes could not continue the voyage. But, suppose the article applicable, and what were the United States to do? They must place those on board the ship in the situation they were in when taken, that is, the Africans in possession, with the two Spaniards as their prisoners, or their slaves, as the case might be; the negroes as masters of the ship, to continue their voyage, which on their part was certainly lawful.
If any part of the article was applicable to the case it was in favor of the Africans. They were in distress, and were brought into our waters by their enemies, by those who sought, and who are still seeking, to reduce them from freedom to slavery, as a reward for having spared their lives in the fight. If the good offices of the government are to be rendered to the proprietors of shipping in distress, they are due to the Africans only, and the United States are now bound to restore the ship to the Africans and replace the Spaniards on board as prisoners. But the article is not applicable at all. It is not a casus faederis. 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
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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 proprietor, as soon as due and sufficient proof shall be made concerning the property thereof."
Was this ship rescued out of the hands of pirates and robbers? Is this Court competent to declare it ? The Courts below have decided that they have no authority to try, criminally, what happened on board the vessel. They have then no right to regard those who forcibly took possession of the vessel as pirates and robbers. If the sympathies of Lieutenant Gedney, which the Secretary of State says had become national, had been felt for all the parties, in due proportion to their sufferings and their deserts, who were the pirates and robbers? Were they the Africans? When they were brought from Lomboko, in the Tecora, against the laws of Spain, against the laws of the United States, and against the law of nations, so far as the United States, and Spain, and Great Britain, are concerned, who were the robbers and pirates? And when the same voyage, in fact, was continued in the Amistad, and the Africans were in a perishing condition in the hands of Ruiz, dropping dead from day to day under his treatment, were they the pirates and robbers? This honorable Court will observe from the record that there were 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 seventeen days and three more between that and November. Sixteen fell victims before November, and from that time not one has died. Think only of the relief and benefit of being restored to the absolute wants of human nature. Although placed in a condition which, if applied to forty citizens of the United States, we should call cruel, shut up eighteen months in a prison, and enjoying only the tenderness which our laws provide for the worst of criminals, so great is the improvement of their condition from what it was in the hands of Ruiz, that they hare perfectly recovered their health, and not one has died; when, before that time, they were perishing from hour to hour.
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At the great day of accounts, may it please the Court, who is to be responsible for those sixteen souls that died? Ruiz claims those sixteen as his property, as merchandise. How many of them, at his last hour, will pass before him and say, " Let me sit heavy on thy soul tomorrow!"
Who, then, are the tyrants and oppressors against whom our laws are invoked? Who are the innocent sufferers, for whom we are called upon to protect this ship against enemies and robbers? Certainly not Ruiz and Montes.
But, independently of this consideration, the article cannot apply to slaves. It says ships and merchandise. Is that language applicable to human beings? Will this Court so affirm? It says they shall be restored entire. Is it a treaty between cannibal nations, that a stipulation is needed for the restoration of merchandise entire, to prevent parties from cutting off the legs and arms of human beings before they are delivered up? The very word entire in the stipulation is of itself a sufficient exclusion of human beings from the scope of the article. But if it was intended to embrace human beings, the article would have included a provision for their subsistence until they are restored, and an indemnification for their maintenance to the officers who are charged with the execution of the stipulation. And there is perhaps needed a provision with regard to the institutions of the free states, to prevent a difficulty in keeping human beings in the custom house, without having them liable to the operation of the local law, the habeas corpus, and the rights of freedom.
But with regard to article 9, I will speak of my own knowledge, for it happened that on the renewal of the treaty in 1819, the whole of the negotiations with the then minister of Spain passed through my hands, and I am certain that neither of us ever entertained an idea that this word merchandise was to apply to human beings.
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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 dominion of the other, their respective subjects or citizens shall receive, as well for themselves as for their vessels and effects, the same assistance which would be due to the inhabitants of the country where the damage happens, and shall pay the same charges and dues only as the said inhabitants would be subject to pay in a like case; and if the operations of repair should require that the whole or any part of the cargo be unladen, they shall pay no duties, charges, or fees on the 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 damaged. She came into our waters voluntarily, so far as the Span. lards were concerned, but involuntarily, so far as concerned the Africans, who were in possession of the vessel. They were intentionally prosecuting a voyage to Africa, but were brought to our shores by deception, and against their wills. This is not casus faederis. The treaty has no application here But if, by any latitude of construction, it could be applied, its benefits belong to the Africans, for they were pursuing a lawful voyage, and not to the Spaniards, who were on an unlawful voyage, in the prosecution of the slave trade.
But the article says the same assistance shall be afforded that our own citizens would be entitled to receive in like circumstances. Let us apply the rule. Suppose the Amistad had been a vessel of the United States, owned and manned by citizens of the United States and in like circumstances. Say it was a Baltic more clipper, fitted for the African slave trade, and having performed a voyage, had come back to our shores, directly or indirectly with fifty four African victims on board, and was thus brought into port–what would be the assistance guaranteed by our laws to American citizens, in such circumstances? The Captain would be seized, tried as a pirate, and hung ~ And every person concerned, either as owners or on board the ship, would be severely punished. The law makes it a capital offence for the captain, and no appeal to this Court would save him from the gibbet. Is that the assistance which the Spanish minister invokes for Ruiz and Montes? That is what our laws would secure to our own citizens in like circumstances. And perhaps it would be a reward nearer their merits the restoration of these poor negroes to them, or enabling them to complete their voyage.
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But my clients are claimed under the treaty as merchandise, rescued from pirates and robbers. Who were the merchandise, and who were the robbers? According to the construction of the Spanish minister, the merchandise were the robbers, and the robbers were the merchandise. The merchandise was rescued out of its own hands, and the robbers were rescued out of the hands of the robbers. Is this the meaning of the treaty? Will this Court adopt a rule of construction in regard to solemn treaties that will sanction such conclusions? There is a rule in Vattel that no construction shall be allowed to a treaty which makes it absurd. Is any thing more absurd than to say these forty Africans are robbers, out of whose hands they have themselves been rescued? Can a greater absurdity be imagined in construction than this, which applies the double character of robbers and of merchandise to human beings?
May it please your Honors, there is not one article of the treaty that has the slightest application to this case, and the Spanish minister has no more ground for appealing to the treaty, as a warrant for his demand, than he has for relying on the law of nations.
The next argument that follows is so peculiar that I find it difficult to give a distinct idea of its purpose or application. He says,
"The crime in question is one of those which, if permitted to pass unpunished, would endanger the internal 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 African slaves. These, on learning that the crime alluded to had been committed with impunity, (and their friends would not fail to acquaint them with the fact) would lose none of the opportunities for attempting revolt and evasion, which are afforded by the frequent and daily necessity of conveying negroes by sea from one quarter of the island to another; and to guard against this it would be necessary to use additional precautions at a great expense."
I believe, may it please the Court, that this is not a good argument before this court, to determine questions of law and justice by the consideration that there are American citizens who own plantations in the island of Cuba, which they cultivate by the labor of slaves.
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They own their plantations and slaves there, subject to the laws of Spain, which laws declare the African slave trade to be felony. The Spanish minister has no right to appeal to our courts to pass a particular sentence between parties in a suit, by considerations of their personal interest, or that of other American citizens in the Island of Cuba. What would become of the liberties of this nation if our courts are to pass sentence between parties, upon considerations of the effect it may have upon the interest of American citizens, scattered as they may be in all parts of the world? If it is a valid consideration when applied to Cuba and the American owners of sugar estates and slaves there, it applies equally to all other countries where American citizens may have property; to China, Hindostan, or the Feejee Islands. It was no proper argument for the Spanish minister to urge upon the American Secretary of State. It was undoubtedly calculated and designed to influence his sympathy in the case--that sympathy with one of the parties which he says had become national. It was calculated to excite and to influence the Secretary of State not only by the elect 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 justice will decide cases? I trust not.
There are a few portions of this letter, which I had rather your Honors would read when you are together in consultation, than to read them myself in this place. I will not trust myself to comment upon them as they deserve. I trust that your Honors, in the pursuit of JUSTICE, will read them, as the document will be in your hands, and you will see why I abstain from doing it. Mr. Calderon proceeds to say,
"If, on the other hand, they should be condemned by the incompetent tribunal that has taken upon itself to try them as pirates and assassins, the infliction of capital punishment in this case would not be attended with the salutary effects had in view by the law when it resorts to this painful and terrible alternative, namely, to prevent the commission of similar offenses. In such case, the indemnification I officially ask for the owners would be a very slender compensation; for, if the property remained unimpaired, as it would remain, the satisfaction due to the public would not be accorded."
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And that is a reason why the President of the United States was to issue his lettre de cachet, and send these unfortunateindividuals to Cuba. I abstain now from reading the subsequent passages. He concludes by saying,[1]
"In the islands above mentioned the citizens of the United States have always met with a favorable reception and kind treatment. The Spanish Government, for the protection of their property, would immediately accord the extradition of any slaves that might take refuge there from the southern states. Being itself exact in the observance of treaties, it claims the more justly the execution of them, and a reciprocal good correspondence, from a nation, the ally and neighbor of Spain, to whom so many proofs have been afforded of the high degree in which her friendship is esteemed."
They will readily yield fugitive slaves! Was this an argument,
I ask the honorable Court, to be addressed to the Secretary of State? Is it upon
these principles that cases are to be decided? Is it by these considerations that
the action of governments is to be determined? Shall these men be given up on the
offer of an equivalent? " If you will deliver these Africans to me, for whose
blood all the slave traders of Cuba thirst, and any slave from the south shall make
his escape and come to Cuba, we will readily deliver him up. "What is this argument
as addressed to the Secretary of State? It may be a very easy thing for the Governor
at Havana to seize a fugitive southern slave, or a pretended fugitive, as the case
may be, and put him on board a vessel and send him to one of our Southern states.
The learned Attorney General, I think, read some authorities to show that this Governor
has royal powers, about equal to those of the King, and it may be easy for him to
seize any man, black or white, slave or free, who may be claimed as a slave, and
send him beyond seas for any purpose. But, has the President of the United States
any such powers? Can the American Executive do such things? If he is to do them,
I should hope, at least, that it might be under treaty stipulations rather more adapted
to the object than these. It was going quite far enough, I should think, to require
the President of the U. S. to keep these men safely, and send them back at the expense
of this nation, without making this–what shall I call it ? I will not undertake to
qualify it in words–-this offer to send back the fugitive slaves of the South as
an equivalent, provided the President will consent to deliver up these MEN, by a
despotic act, to satiate the vengeance of the slave-traders at Havana.
_________________________
[1]
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.
"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 complaint, 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 discord 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 will 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 resuming this virtue as a cloak, have no hesitation in repaying the hospitality they receive by the seduction of the slaves of their host, especially if they are skillful in any trade.
"Having induced them to abandon their masters, they ship them on board 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 believe 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 foreign 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 that might be referred to in proof of the justice of this remark, one is that of John Smith, mate of the brig Swiftsure who concealed and brought away with him a negro who was cook in a hotel where he was staying; upon which subject the undersigned wrote to the Secretary of State on the 19th of November, 1836, and now addresses him again in a separate communication. That the fears of the undersigned are 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 counsellors of Boston, New Haven and New York."
End Part 1.
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