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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: S. 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.
_____________________
III.
DEATH OF JUDGE BARBOUR--THE PROCEEDINGS OF THE COURT
SUSPENDED.
Washington, Feb. 25, 1841.
The proceedings of the Court in this solemn case have been interrupted by the solemn voice of death. One of the learned and honorable judges of the Court, who sat yesterday in his place, listening with profound and patient attention to the argument of a counsellor many years older than himself, reasoning eloquently in behalf of justice on earth, has been summoned to his own dread account, at the bar of Eternal Justice above. Judge Barbour, of Virginia, the seventh in rank on the bench, died last night in his bed—-in his sleep, it is probable, without a groan or a struggle. The servant at his lodgings went at the usual hour this morning to the rooms of the different Judges, to call them to breakfast. As the Chief Justice was passing the door of Judge Barbour's room, the man said to him, "Chief Justice, will you please to come here, sir—I think Judge Barbour is dead." Judge Taney went to the bed, and there saw his associate lying on his side, as if in a gentle sleep, but dead and cold, with the exception of a slight remaining warmth at the chest. Not a muscle was distorted, nor were the bedclothes in the slightest degree disturbed, so that it is probable his heart ceased to beat in an instant while he was asleep!
At the usual hour for opening the Court this morning, none of the Judges were seen
in the courtroom, which was already filled with persons come to hear the continuation
of Mr. Adams' speech. At length the Judges came in together, and their countenances
looked pale, distressed, and sorrowful. As soon as they had taken their seats, the
Crier opened the Court in the usual form, and the Chief Justice addressed the gentlemen
of the bar—-" Gentlemen a painful event has occurred—-Judge Barbour died suddenly
last night—-and the Court is therefore adjourned until Monday."
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The Crier then made proclamation to that effect, the Judges all rose, and retired
again to their private apartment, and the assembly withdrew.
I did not expect an announcement of so overwhelming a Providence in a manner so severely
simple and subdued, but it struck me as eminently appropriate for the Supreme
Court of this nation. It was in keeping with the strictest propriety and suitableness.
It was sublime.
RESUMPTION OF THE TRIAL.
Washington, March 1, 1841.
On the reopening of the Court, the Attorney General of the United States, H. D. Gilpin, Esq. presented a series of appropriate resolutions in reference to the decease of Judge Barbour, which had been adopted on Friday, at a meeting of the Bar of officers of the court, and which he moved to have entered on the records of the court. The Chief Justice responded in a short address, and concluded with ordering the resolutions to be entered on the records. Mr. Adams then resumed his argument, as follows:–
May it please your Honors,
The melancholy event which has occurred since the argument of this case was begun, and which has suspended for a time the operations of the Court itself, and which I ask permission to say that I give my cordial, and painful concurrence in the sentiments of the Bar of this Court–-has imposed on me the necessity of restating the basis and aim of the argument which I am submitting to the Court, in behalf of the large number of individuals, who are my unfortunate clients.
I said that my confidence in a favorable result to this trial rests mainly on the ground that I was now speaking before a Court of JUSTICE. And in moving the dismissal of the appeal taken on behalf of the United States, it became my duty, and was my object to show, by an investigation of all the correspondence of the Executive in regard to the case, that JUSTICE had not been the motive of its
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proceedings, but that they bad been prompted by sympathy with one of the
two parties and against the other. In support of this, I must scrutinize, with the
utmost severity, every part of the proceedings of the Executive Government. And in
doing it, I think it proper for me to repeat, that in speaking of the impulse of
sympathies, under which the government acted, I do not wish to be understood to speak
of that sympathy as being blameable in itself, or as inducing me to feel unfriendly
sentiments towards the Head of the Government, or the Secretary of State, or any
of the Cabinet. I feel no unkind sentiments towards any of these gentlemen. With
all of them, I am, in the private relations of life, on terms of intercourse, of
the most friendly character. As to our political differences, let them pass for what
they are worth, here they are nothing. At the moment of the expiration of this administration,
I feel extreme reluctance at the duty of bringing its conduct before the court in
this manner, as affecting the claims of my clients to JUSTICE. My learned friend,
the Attorney General, knows that I am not voluntary in this work. I here descended
to personal solicitation with the Executive, that by the withdrawal of the appeal,
I might be spared the necessity of appearing in this cause. I have been of the opinion
that the case of my clients was so clear, so just, so righteous, that the Executive
would do well to cease its prosecution, and leave the matter as it was decided by
the District Court, and allow the appeal to be dismissed. But I did not succeed,
and now I cannot do justice to my clients, whose lives and liberties depend on the
decision of this Court—-however painful it may be, to myself or others.
In my examination of the first proceedings of the Executive in this case, I did scrutinize
and analyze, most minutely and particularly, the four demands first made upon
our government by the late Spanish minister, Mr.Calderon, in his letter to the Secretary
of State of Sept. 5, 1839. I tested the principles there laid down, both by the laws
of nations and by the treaties between the two nations to which he had appealed.
And I showed that every one of these demands was inadmissible, and that every principle
of law and every article of the treaty, he had referred to, was utterly inapplicable.
At the close of my argument the other day, I was commenting upon the complaint of
the present minister, the Chevalier d'Argaiz, addressed to the Secretary of State
on the 25th of December, 1839, in relation to the injustice he alleges to have been
done to the two Spanish subjects, Ruiz and Montes, by their arrest and imprisonment
in New York, at the suit of some of the Africans. He says he " does not comprehend
the privilege enjoyed by negroes, in favor of whom an interminable suit is commenced,
in which everything is deposed by every person who pleases; and, for that object,
an English doctor who accuses the Spanish Government of not complying with its treaties,
and calumniates the Captain General of the island of Cuba, by charging him with bribery."
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This English Doctor is Dr. Madden, whose testimony is given in the record. He
certainly does not charge the Captain General with bribery, although he says that
both he and the other authorities of Cuba are in the habit of winking or conniving
at the slavetrade. That this is the actual state of affairs, I submit to the Court,
is a matter of history. And I call the attention of the Court to this fact, as one
of the most important points of this case. It is universally known that the trade
is actually carried on, contrary to the laws of Spain, but by the general connivance
of the Governor General and all the authorities and the people of the island. The
case of this very vessel, the visit of Ruiz and Montes to the barracoon in which
these people were confined, the vessel in which they were brought from Africa, are
all matters of history. I have a document which was communicated by the British government
to the Parliament, which narrates the whole transaction. Mr. A. here read from the
Parliamentary documents, a letter from Mr. Jerningham, the British Minister at Madrid,
to the Spanish Secretary of State, dated January 5th, 1840, describing the voyage
of the Tecora from Africa, the purchase of these Africans who were brought in her,
with the subsequent occurrences, and urging the Spanish Government to take measures
both for their liberation, and to enforce the laws of Spain against Ruiz and Montes.
He says " I have consequently been instructed by my government to call upon
the government of her Catholic Majesty to issue, with as little delay as possible,
strict orders to the authorities of Cuba, that, if the request of the Spanish minister
at Washington be complied with, these negroes may be put in possession of the liberty
of which they were deprived, and to the recovery of which they have an undeniable
title.
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"I am further directed to express the just expectations of Her Majesty's government
that the Government of her Catholic Majesty will cause the laws against the slave-trade
to be enforced against Messrs. Jose Ruiz and Pedro Montes, who purchased these newly
imported negroes, and against all such other Spanish subjects as have been concerned
in this nefarious transaction."
These facts, said Mr. A., must be well known to the Spanish minister. If he complains
of injustice in the charge of general connivance made by Dr. Madden, why has he not
undertaken to prove that it is a calumny? Not the slightest attempt has been made
to bring forward any evidence on this point, for the very plain reason that there
could be none. The fact of the slave trade is too notorious to be questioned. I will
read, said he, from another high authority, a book filled with valuable and authentic
information on the subject of the slave trade written by one of the most distinguished
philanthropists of Great Britain, Sir Thomas Fowell Buxton. Mr. A. then read as follows:
"It is scarcely practicable to ascertain the number of slaves imported into
Cuba: it can only be a calculation on, at best, doubtful data. We are continually
told by the Commissioners, that difficulties are thrown in the way of obtaining correct
information in regard to the slave trade in that island. Everything that artifice,
violence, intimidation, popular countenance, and official connivance can do, is done,
to conceal the extent of the traffic. Our ambassador, Mr.Villiers, April, 1837, says,
'That a privilege (that of entering the harbor after dark) denied to all other vessels,
is granted to the slave-trader; and, in short, that with the servants of the Government,
the misconduct of the persons concerned in this trade finds favor and protection.
The crews of captured vessels are permitted to purchase their liberation; and it
would seem that the persons concerned in this trade have resolved upon setting the
government of the mother country at defiance.' Almost the only specific fact which
I can collect from the reports of the Commissioners, is the statement 'that 1835
presents a number of slave vessels (arriving at the Havana) by which there must have
been landed, at the very least, 15,000 negroes.' But in an official letter, dated
28th May, 1836, there is the following remarkable passage: 'I wish I could add, that
this list contains even one-fourth of the number of those which have entered after
having landed cargoes, or sailed after having refitted in this harbor.' This would
give an amount of 60,000 for the Havana alone; but is Havana the only port in Cuba
in which negroes are landed? The reverse is notoriously true. The Commissioner says,
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'I have every reason to believe that several of the other ports of Cuba, more
particularly, the distant city of St. Jago de Cuba, carry on the traffic to a considerable
extent.' Indeed, it is stated by Mr. Hardy, the consul at St Jago, in a letter to
Lord Palmerston; of the 18th February, 1837, 'That the Portuguese brig Boca Negra,
landed on the 6th inst. at Juragua, a little to windward of this port, (St. Jago,)
400 Africans of all ages, and subsequently entered this port.' But in order that
we may be assuredly within the mark, no claim shall be made on account of these distant
ports. Confining ourselves to the Havana, it would seem probable, if it be not demonstrated,
that the number for that port, a fortiori, for the whole island, may fairly be estimated
at 60,000."
This evidence is important to show what is the real value of this certificate of
the Governor General. There is one other proof which I will read to the court, and
leave it to your Honors to judge of its bearing, and of the conclusion to which it
arrives. It is the statement of the Spanish vice consul, Mr. Vega.
"The following statement was made to me by A. G. Vega, Esq., Spanish consul,
as near as 1 can now recollect, and according to my best knowledge and belief, 10th
January, 1840.
W. S. HOLABIRD.
"That he is a Spanish subject; that he resided in the Island of Cuba several
years; that he knows the laws of that island on the subject of slavery; that there
was no law that was considered in force in the Island of Cuba, that prohibited the
bringing in African slaves; that the court of mixed commissioners had no jurisdiction
except in case of capture on the sea; that newly imported African negroes were constantly
brought to the island, and after landing were bona fide transferred from one owner
to another, without any interference by the local authorities or the mixed commission,
and were held by the owners and recognized as lawful property; that slavery was recognized
in Cuba by all the laws that were considered in force there; that the native language
of the slaves was kept up on some plantations for years. That the barracoons are
public markets, where all descriptions of slaves are sold and bought; that the papers
of the Amistad are genuine, and are in the usual form; that it was not necessary
to practice any fraud to obtain such papers from the proper officers of the government;
that none of the papers of the Amistad are signed by Martinez, spoken of by R. R.
Madden, in his deposition; that he (Martinez) did not hold the office from whence
that paper issued."
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This is the statement given to the District Attorney by Mr. Vega, and by him made
a part of this case. This Spanish functionary declares positively, that he knows
there is no law in force in Cuba against the African slave trade, and that
recent Africans are held and sold bona fide as slaves. It is conclusive to
prove this fact, that the illegal importation and purchase of Africans is openly
practiced in Cuba, although it is contrary to the laws of Spain, but those laws are
not considered in force, that is, the violation of them is constantly connived at
by the authorities.
It may not be universally known, but is doubtless known to members of this court;
that there is a volume of correspondence on this subject, by our consul at Havana,
which will be communicated to Congress for publication in a few days, and I can state
from my personal knowledge that it confirms every word of Dr. Madden's statements
on this point, and will show how much reliance is to be placed on this certificate
of the Governor-General.
But I will return to the letter of the Chevalier d'Argaiz. I have not the honor of
knowing this gentleman personally, as I knew his predecessor, but I certainly entertain
no feeling of unkindness towards him. And in examining his correspondence, although
it is my duty to show that his demands are utterly inadmissible and unprecedented,
yet it must be admitted that his sympathy and partiality for his own countrymen are
at least natural; and if his zeal and earnestness are somewhat excessive, they are
at least pardonable. There is in this letter, I must say, a simplicity, what the
French call bonhommie, which gives me a favorable impression of his character,
and I certainly feel the farthest possible from a disposition to pass any censure
on him. I repeat that, so far as this sympathy is concerned, if it is not entirely
excusable, it is much more reasonable than it is in some others who have not the
same interests to defend. He goes on to express his pleasure at the assurance received
from the Secretary, that " whatever may be the final settlement of the question,
it will be in consequence of a decision emanating from the government, and not from
any other source;" and he adds, that "he doubts not such decision will
be conformable with the opinion which was confidentially communicated to him at the
Department of State on the 19th of November, as founded on that of a learned lawyer,
and which he was assured had been adopted by the cabinet."
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I take it for granted that the opinion referred to is the opinion of the Attorney-General
of that time, Mr. Grundy, contained in the Congressional document. It will be necessary
for me to examine that document before I close, as well as the other papers, and
I wish to say that the decease of that gentleman, under the circumstances in which
it occurred, has made such an impression on my mind, as could not have but disarmed
me of any disposition to censure him, if I had before entertained it. It will be
a painful duty to me to examine, as I must, with the utmost severity, that document.
And I shall show that it is such, that neither the courts nor the cabinet ought ever
to have acted on it.
In another part of his letter, M. d'Argaiz says of Ruiz and Montes, that "they
were not exempted from the persecutions of an atrocious intrigue, and the
undersigned is not the first who has so styled this persecution.' This is a pretty
plain intimation that the American Secretary of State was the first who called
the suit of my clients for legal redress "an atrocious intrigue," in his
"confidential conversation" with the Spanish minister. This is followed
by an idea so novel and ingenious that it is necessary to repeat the whole of it.
After complaining that negroes should be allowed to be complainants, he goes on to
argue that they ought to be considered," morally and legally, as not being in
the United States," and of course, if they should be delivered up physically,
I suppose it was to be inferred that the Executive would not incur any responsibility.
"They are morally and legally not in the United States, because the court of
Connecticut has not declared whether or not it is competent to try them. If it should
declare itself incompetent, it declares that they are under the cover of the Spanish
flag; and, in that case, they are physically under the protection of a friendly government,
but morally and legally out of the territory and jurisdiction of the United States;
and, so long as a doubt remains on this subject, no judge can admit the complaint.
If this argument be of any value to the Secretary of State of the Government of the
Union, the undersigned entreats him to prevail on the President to cause a protest,
founded on this argument, to be officially addressed to the court of New York."
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"His predecessor, M. Calderon, called upon the President for a proclamation
forbidding the courts to take up the case, and the present minister of Spain insists
that he shall send forth his protest to take it out of the hands of the courts—-and
this on the ground, that my clients, although personally imprisoned for eighteen
months by the U. S. Marshal, under order of the U. S. Court, yet are "not morally
and legally in the United States." There is another argument of the same gentleman,
very much of the same character. The court will find it in his first letter after
the arrest of Ruiz and Montes at New York. He says:
"It would be easy to demonstrate the illegality of these arrests, the orders
for which have possibly been obtained from the attorney by surprise: as it would
also be easy to show the ignorance of the declarant, Tappan, in declaring that Ruiz
is known by the name of Pipi, whereas he would have been known and distinguished
throughout Spain, as all other Joses are, by the diminutive of Pepe, and thus
it appears that a Pepe has been imprisoned instead of a Pipi, which
I believe the law does not permit."
The argument is certainly ingenious, and if it is sound at all, it is worth more
in favor of the Africans than of the Spaniards, as I may hereafter have occasion
to show, when I come to consider the case of nine-and-forty persons with Spanish
names, who have been arrested and brought into court by African names.
The Chevalier d'Argaiz, in the close of this letter, exhibits his loyalty towards
the then acting sovereign of his nation.
"At the moment when the heart of the august Queen-Governess is filled with delight
on account of the termination of a civil war, and the assurance of the throne of
her august daughter, her minister in the United States has to perform the painful
duty of diminishing her happiness by communicating to her, as he did by letter on
the 19th instant, the disagreeable event which forms the subject of this communication.
The desire of calming the disquiet which this news may occasion in the mind of her
Majesty, together with that of alleviating the lot of the two prisoners, urge the
undersigned to entreat you, Mr. Secretary of State, to take into consideration what
he has here set forth, and to afford him the means, in a prompt reply, of satisfying
those just desires, which will be completely done if he is able to transmit such
a reply to his Government by the packet sailing for Havre on the 1st of November
next."
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It must doubtless, said Mr. A., be some consolation to this loyal minister, to reflect
that before the august Queen-Governess could have received the painful intelligence
of the imprisonment of two such meritorious subjects as Ruiz and Montes to diminish
her happiness, her heart had been gratified in a much better manner. In the pursuit
of that happiness for which she longed, it seems that she retired altogether from
the cares of state, into the comforts of domestic life, with a husband that, I hope
has calmed her disquiet, and if it should ultimately turn out that the lives of these
poor Africans are saved, there will be no further occasion to diminish the happiness
of the august Queen-Governess.
On the 30th of December, five days after the date of the letter I have been commenting
upon, the Chevalier d'Argaiz wrote again to the Secretary of State.
"WASHINGTON, December 30, 1839.
"SIR—-In the conversation which I had with you on the
morning of the day before yesterday, you mentioned the possibility that the Court
of Connecticut might, at its meeting on the 7th of January next, declare itself incompetent,
or order the restitution of the schooner Amistad, with her cargo, and the negroes
found on board of her; and you then showed me that it would be necessary for the
legation of her Catholic Majesty to take charge of them as soon as the Court should
have pronounced its sentence or resolution; and, although I had the honor to state
to you that this legation could not possibly transfer the said negroes to Havana,
still it appears proper for me now to declare that—
"Considering that the schooner Amistad cannot make a voyage, on account of the
had condition in which she is, of her being entirely without a crew:
"Considering that it would be difficult to find a vessel of the United States
willing to take charge of these negroes, and to transport them to Havana; and, also,
that these negroes have declared before the Court of Connecticut that they are not
slaves; and that the best means of testing the truth of their allegation is to bring
them before the Courts of Havana:
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"Being at the same time desirous to free the Government of the United States
from the trouble of keeping the said negroes in, prison, I venture to request you
to prevail upon the President to allow to the Government of her Catholic Majesty
the assistance which it asks under the present circumstances from that of the United
States, by placing the negroes found on board of the said schooner, and claimed by
this legation, at the disposition of the Captain General of the Island of Cuba, transporting
them thither in a Ship belonging to the United States. Her Catholic Majesty's Government,
I venture to assert, will receive this act of generosity as a most particular favor,
which would serve to strengthen the bonds of good and reciprocal friendship now happily
reigning between the two nations."
Here is no longer a demand for the delivery of slaves to their owners, nor for the
surrender of the Africans to the Spanish minister as assassins, but an application
to the President of the United States to transport forty individuals beyond the
seas, to be tried for their lives. Is there a member of this Honorable Court
that ever heard of such a demand made by a foreign minister on any government? Is
there in the whole history of Europe an instance of such a demand made upon an independent
government? I have never in the whole course of my life, in modern or ancient history,
met with such a demand by one government on another. Or, if such a demand was ever
made, it was when the nation on which it was made was not in the condition of an
independent power.
What was this demand? It was that the Executive of the United States, on his own
authority, without evidence, without warrant of law, should seize, put on board a
national armed ship, and send beyond seas, forty men, to be tried for their lives.
I ask the learned Attorney General in his argument on this point of the case, to
show what is to be the bearing of this proceeding on the liberties of the people.
I ask him to tell us what authority there is for such an exercise of power by the
Executive. I ask him if there is any authority for such a proceeding in the case
of these unfortunate Africans, which would not be equally available, if any President
thought proper to exercise it, to seize and send off forty citizens of the United
States. Will he vindicate such an authority? Will this Court give it a judicial sanction?
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But, may it please your Honors, what was the occasion, the cause, the motive, which
induced the Secretary of State to hold this personal communication with the Spanish
minister on the 28th of December? What had occurred to induce the Secretary of State
to send for the Chevalier d'Argaiz, and tell him that the court of Connecticut was
about to pass a decree that these Africans should be delivered up, and that our government
would be ready to deliver them to him! What induced the Secretary of State to come
to the conclusion that there was any sort of probability that the Court of Connecticut
would so adjudge? The documents do not inform us at whose suggestion or by what information
the Secretary of State acted in this remarkable manner. We are left to infer, that
his course was founded, probably, on the opinion of the late Attorney General, with
a suggestion from the District Attorney of Connecticut. I refer to a letter of the
Secretary of State to Mr. Holabird, January 6, 1840, in connection with this letter
of the Spanish minister, of December 30. The Secretary says,"Your letter of
the 20th ultimo," that is, the 20th of December, "was duly received."
Now, said Mr. Adams, it is a remarkable fact, that this letter of the District Attorney,
of December 20, 1839, was not communicated with the rest of the documents. Why it
was not communicated is not for me to say. The call of the House of Representatives
was in the usual form, for information "not incompatible with the public interest;"
which, of course, gives the President the right to withhold any documents that he
thinks proper. That letter, therefore, is not communicated, and I cannot reason from
it, any farther than its contents may be presumed, from the intimations in the letter
of the Spanish minister, in connection with the subsequent proceedings. The Secretary
says—
"WASHINGTON, January 6, 1840.
"Sir—-Your letter of the 20th ultimo was duly received, and has been laid before the President. The Spanish minister having applied to this department for the use of a vessel of the United States, in the event of the decision of the circuit court in the case of the Amistad being favorable to his former application, to convey the negroes to Cuba, for the purpose of being delivered over to the authorities of that island, the President has, agreeably to your suggestion taken in connection with the request of the Spanish minister, ordered a vessel to be in readiness to receive the negroes from the custody of the marshal as soon as their delivery, shall have been ordered by the court."
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Now, what could that suggestion have been? It will be remembered that the Secretary
of State had before directed the District Attorney, Sept.11, "In the mean time
you will take care that no proceeding of your circuit court, or of any other judicial
tribunal places the vessel, cargo, or slaves, beyond the control of the Federal
Executive." The District Attorney had repeatedly inquired of the Secretary
if they could not be disposed of by an Executive act, or before the court met. Until
this time he had received no orders from the Department. From the intimation now
given, it is evident that the purport of that suppressed letter was an intimation
that the district court would undoubtedly deliver them up, and the difficulty then
was, how to get them out of the way. There might be a Habeas Corpus from the State
courts at the moment of their delivery to the Spaniards, and some new difficulties
would intervene. There must have been some such suggestion to warrant or account
for the subsequent proceedings. The Secretary goes on to say—
"As the request of the Spanish minister for the delivery of the negroes to the
authorities of Cuba has, for one of its objects, that those people should have an
opportunity of proving, before the tribunals of the island the truth of the allegations
made in their behalf in the course of the proceedings before the circuit court, that
they are not slaves, the President, desirous of affording the Spanish courts every
facility that may be derived from this country towards a fair and full investigation
of all the circumstances, and particularly of the allegations referred to with regard
to the real condition of the negroes, has directed that Lieutenants Gedney and Meade
be directed to proceed to Cuba, for the purpose of giving their testimony in any
proceedings that may be instituted in the premises; and that complete records of
all those which have been had before the circuit court of your district, including
the evidence taken in the cause, be, with the same view, furnished to the Spanish
colonial authorities. In obedience to this last mentioned order, you will cause to
be prepared an authentic copy of the records of the court in the case, and of all
the documents and evidence connected with it, so as to have it ready to be handed
over to the commander of the vessel which is to take out the negroes, who will be
instructed as to the disposition he is to make of them."
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In every thing I have said of the arguments, and the zeal of the Spanish minister,
I have admitted that the principles which may be supposed to govern him might go
far to justify the sympathy he has shown for one party exclusively. But l cannot
give the same credit for the sympathy shown by our own government. In this letter
we meet, for the first time, something that might appear like sympathy for the poor
wretches whose liberties and lives were in peril. Here is a desire intimated that
they might go to Cuba, for the purpose of having an opportunity to prove in the courts
of Spain their right to be free by the laws of Spain. And the President, in the abundance
of his kindness, orders Lieutenants Gedney and Meade to be sent along with them,
as witnesses in the case, "particularly," the Secretary says, " with
regard to the real condition of the negroes," that is, whether they were free
or slaves. But what did Lieutenants Gedney and Meade know about that? They could
testify to nothing but the circumstances of the capture. And as to the other idea,
that these people should have an opportunity to prove their freedom in Cuba, how
could that be credited as a motive, when it is apparent that, by sending them back
in the capacity of slaves, they would be deprived of all power to give evidence at
all in regard to their freedom. I cannot, therefore, give the Executive credit for
this sympathy towards the Africans. It was a mere presence, to blind the public mind
with the idea that the Africans were merely sent to Cuba to prove they were not slaves.
So far from giving any credit for this sympathy, the letter itself furnishes incontestable
evidence of a very different disposition, which I will not qualify in words.
Pursuing the case chronologically, according to the course of the proceedings, I
now call the attention of the Court to the opinion of the late Attorney General
of the United States, which the Secretary of the State told Mr. Argaiz had been adopted
by the Cabinet, and which has been the foundation, to this day, of all the proceedings
of the Executive in the case. Before considering this, however, I will advert to
the letter of Messrs. Staples and Sedguick to the President. These gentlemen were
counsel for those unfortunate men. There had been reports in circulation, which is
by no means surprising, considering the course of the public sympathy, that the President
intended to remove these people to Cuba, by force, gubernativamente, by virtue
of his Executive authority—-that inherent power which I suppose has been discovered,
by which the President, at his discretion, can seize men, and imprison them, and
send them beyond seas for trial or punishment by a foreign power.
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Hear Messrs. Staples and Sedgwick to the President of the United States.
"NEW YORK, September 13, 1839.
"Sir--We have been engaged as counsel of the Africans brought in by the Spanish
vessel, the Amistad; and, in that capacity, take the liberty of addressing you this
letter.
"These Africans are now under indictment in the circuit court of the second
circuit, on a charge of piracy, and their defence to this accusation must be established
before that tribunal. But we are given to understand, from authority not to be doubted,
that a demand has already been made upon the Federal Government, by the Spanish minister,
that these negroes be surrendered to the authorities of his country; and it is on
this account that we now address you.
"We are also informed, that these slaves are claimed under the 9th article of
the treaty of 1795, between this country and Spain by which all ships and merchandise
rescued out of the hands of pirates and robbers on the high seas are to be restored
to the true proprietor, upon due and sufficient proof.
"We now apply to you, sir, for the purpose of requesting that no order may be
made by the Executive until the facts necessary to authorize its interposition are
established by the judicial authority in the ordinary course of justice. We submit
that this is the true construction of the treaty; that it is not a mere matter of
Executive discretion; but that, before the Government enforces the demand of the
Spanish claimant, that demand must be substantiated in a court of justice.
"It appears to us manifest that the treaty could never have meant to have submitted
conflicting rights of property to mere official discretion; but that it was intended
to subject them to the same tribunals which, in all other cases, guard and maintain
our civil rights. Reference to the 7th article, in our opinion, will confirm this
position.
"It will be recollected that, that if we adopt this as the true construction
of the treaty, should any occasion ever arise when our citizens shall claim the benefit
of this section, Spain would be at liberty to give it the same interpretation; and
that the rights of our citizens will be subjected to the control of subordinate ministerial
agents, without any of those safeguards which courts of justice present for the establishment
of truth and the maintenance of rights. We submit, further, that it never could be
intended that the Executive of the Union should be harassed by the investigation
of claims of this nature, and yet, assuredly, if the construction contended for be
correct, such must be the result; for, if he is to issue the order upon due
and sufficient proof,the proof must be sufficient to his mind.
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"We further submit, that, in regard to the Executive, there are no rules of
evidence nor course of proceeding established; and that, in all such cases, unless
the claimant be directed to the courts of justice, the conduct of the affair must,
of necessity, be uncertain, vague, and not such as is calculated to inspire confidence
in the public or the parties. We can find nothing in the treaty to warrant the delivery
of these individuals as offenders; and the Executive of the Union has never thought
itself obliged, under the laws of nations, to accede to demands of this nature.
"These suggestions are of great force in this case, because we, with great confidence,
assert, that neither according to the law of this, nor that of their own country,
can the pretended owners of these Africans establish any legal title to them as slaves.
"These negroes were, it is admitted, carried into Cuba contrary to the provisions
of the treaty between Spain and Great Britain of 1817, and of the orders made in
conformity therewith; orders which have been repeated, at different times, to as
late a date as the 4th November, 1838, by which the trade is expressly prohibited;
and if they had been taken on board the slaver, they would have been unquestionably
emancipated.
"They were bought by the present claimants, Messrs. Ruiz and Montes, either
directly from the slaver, or under circumstances which must, beyond doubt, have apprised
them that they were illegally introduced into the Havana; and on this state of facts
we, with great respect, insist that the purchasers of Africans illegally introduced
into the dependencies of a country which has prohibited the slave trade, and who
make the purchase with knowledge of this fact, can acquire no right. We put the matter
on the Spanish law; and we affirm, that Messrs Ruiz and Montes have no title, under
that law, to these Africans.
"If this be so, then these negroes have only obeyed the dictates of self-defence.
They have liberated themselves from illegal restraint; and it is superfluous to say,
that Messrs. Ruiz and Montes have no claim whatever under the treaty.
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"It is this question, sir, fraught with the deepest interest, that we pray you
to submit for adjudication to the tribunals of the land. It is this question that
we pray may not be decided in the recesses of the cabinet, where these unfriended
men can have no counsel and can produce no proof, but in the halls of Justice, with
the safeguards that she throws around the unfriended and oppressed.
"And, sir, if you should not be satisfied with the considerations here presented,
we then submit that we are contending for a right upon a construction of a treaty:
that this point, at least, should be presented to the courts of justice; and, should
you decide to grant an order surrendering these Africans, we beg that you will direct
such notice of it to be given, as may enable us to test the question as we shall
be advised, by habeas corpus or otherwise.
"We have only, sir, to add, that we have perfect confidence that you will decide
in this matter with a single regard to the interests of justice and the honor of
the country, and that we are, with the greatest respect, your most obedient servants,
'SETH P. STAPLES,
"THEODORE SEDGWICK, JR.
"MARTIN VAN BUREN,
ESQ.
"President of the United States."
I read the whole of this letter, said Mr. A., to show that this extraordinary course
of proceeding was not entered upon by the Executive without warning and counsel.
The President of the United States was informed, on the receipt of that letter, in
the month of September, 1839, of the deep principles involving the very foundation
of the liberties of this country, that were concerned in the disposal which the Executive
might make of these men. That letter was with the late Attorney General when he examined
the case, and when he made up his opinion. His opinion, addressed to the Secretary
of State, begins thus:
"Sir,—-I have the honor to acknowledge the receipt of yours of the 24th of September,
in which, by direction of the President, you refer to this office the letter of the
Spanish minister of the 6th of September, addressed to you; also the letter of Seth
P. Staples and Theodore Sedgwick, Jr. Esqrs., who have been engaged as counsel for
the negroes taken on board the schooner Amistad, addressed to the President of the
United States; and asking my opinion upon the different legal questions presented
by these papers.
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"I have given to the subject all the consideration which its importance demands;
and now present to you, and through you to the President, the result of my reflections
upon the whole subject.
"The following is the statement of facts contained in your communication: The
Amistad is a Spanish vessel; was regularly cleared from Havana, a Spanish port in
Cuba, to Guanaja, in the neighborhood of Puerto Principe, another Spanish port; that
her papers were regular; that the cargo consisted of merchandise and slaves, and
was duly manifested as belonging to Don Jose Ruiz and Don Pedro Montes; that the
negroes after being at sea a few days, rose upon the white persons on board; that
the captain, his slave and two seamen, were killed, and the vessel taken possession
of by the negroes; that two white Spaniards, after being wounded, were compelled
to assist in navigating the vessel, the negroes intending to carry her to the coast
of Africa; that the Spaniards contrived, by altering the course of steering at night,
to keep her on the coast of the United States; that on seeing land off New York,
they came to the coast and some of the negroes landed to procure water and provisions;
that being on the point of leaving the coast, the Amistad was visited by a boat from
Captain Gedney's vessel, and that one of the Spaniards, claiming protection from
the officer commanding the boat, the vessel and cargo, and all the persons on board,
were sent into New London for examination, and such proceedings as the laws of nations
and of the United States warranted and required."
Here the Court will see he assumes, through the whole argument, that these negroes
were slaves. This corresponds with the assumption of the Executive, which Mr. Forsyth,
in his letter to the Spanish minister afterwards declared the Government had carried
out, that the negroes were slaves, and that the only parties injured were Montes
and Ruiz. The late Attorney General says it appears that the "cargo consisted
of merchandise and slaves," that the papers were "all regular," that
after the capture of the vessel by the negroes, the two white Spaniards "were
compelled to assist in navigating the vessel, the negroes intending to
carry her to the coast of Africa," but "the Spaniards contrived,
by altering the course of steering at night, to bring her to the United States."
This last is an admission of some importance, as the Court will easily see, in deciding
upon the character of the voyage which the vessel was pursuing when taken by Lieutenant
Gedney. He proceeds to say:
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In the intercourse and transactions between nations, it has been found indispensable
that due faith and credit should be given by each to the official acts of the public
functionaries of others. Hence the sentences of prize courts under the laws of nations,
or admiralty, and exchequer or other revenue courts, under the municipal law, are
considered as conclusive as to the proprietary interest in, and title to, the things
in question; nor can the same be examined into in the judicial tribunals of another
country. Nor is this confined to judicial proceedings! The acts of other officers
of a foreign nation, in the discharge of their ordinary duties, are entitled to the
like respect. And the principle seems to be universally admitted, that, whenever
power or jurisdiction is delegated to any public officer or tribunal, and its exercise
is confined his or their discretion, the acts done in the exercise of that discretion,
and within the authority conferred, are binding as to the subject matter; and this
is true, whether the officer or tribunal be legislative, executive, judicial, or
special.—-Wheaton's Elements of International Law, page 121; 6th
Peter's, page 729."
There is the basis of his opinion; that the comity of nations requires, that such
a paper, signed by the Governor General of Cuba, is conclusive to all the world as
a title to property. If the life and liberty of men depends on any question arising
out of these papers, neither the courts of this country nor of any other can examine
the subject, or go behind this paper. In point of fact, the voyage of the Amistad,
for which these papers there given, was but the continuation of the voyage of the
slave trader, and marked with the horrible features of the middle passage. That is
the fact in the case, but this government and the courts of this country cannot notice
that fact, because they must not go behind that document. The Executive may send
the men to Cuba, to be sold as slaves, to be put to death, to be burnt at the stake,
but they must not go behind this document, to inquire into any facts of the case.
That is the essence of the whole argument of the late Attorney-General. At a subsequent
part of my argument I shall examine this document, and I undertake to show
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that it is not even valid for what it purports to be, and that as a passport it bears
on its face the insignia of imposture. But at present I will only observe that it
is a most unheard-of thing, that in a question of property, a passport should be
supposed to give a valid title. Papers of foreign courts and functionaries are to
be credited for that which they intend to do. A passport, if it is regular, is to
be credited as a passport. But when was it ever supposed that a passport stating
what a person carries with him is evidence of his property in that which is
described? All the decisions of this court agree that foreign papers are good only
for that which they propose and purport, but not as evidence of property. And yet
the opinion of the late Attorney-General rests on that ground. In a case involving
the lives and liberties of a large number of men, he has not a word to say of the
principles of justice or humanity concerned, but goes entirely on the force of this
document, on the ground that we cannot go behind the certificate of the Spanish Captain
General. He says:
"Were this otherwise, all confidence and comity would cease to exist among nations;
and that code of international law, which now contributes so much to the peace, prosperity
and harmony of the world, would no longer regulate and control the conduct of nations."
This principle of national comity, I have no desire to contest, so far as
it is applicable to this case. The Attorney says:--
"In the case of the Antelope, (10 Wheaton, page 66,) this subject was fully
examined, and the opinion of the Supreme Court of the United States establishes the
following points:
"1. That, however unjust and unnatural the slave trade may be, it is not contrary
to the law of nations.
"2. That, having been sanctioned by the usage and consent of almost all civilized
nations, it could not be pronounced illegal, except so far as each nation may have
made it so by its own acts or laws; and these could only operate upon itself, its
own subjects or citizens; and, of course, the trade would remain lawful to those
whose Government had not forbidden it.
"3. That the right of bringing in and adjudicating upon the case of a vessel
charged with being enraged in the slave trade, even where the vessel belongs to a
nation which has prohibited the trade, cannot exist. The courts of no country execute
the penal laws of another, and the course of the American Government on the subject
of visitation and search would decide any case in which that right had been exercised
by an American cruiser, on the vessel of a foreign nation not violating our municipal
laws, against the captors.
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"It follows, that a foreign vessel engaged in the African slave trade, captured
on the high seas in time of peace, by an American cruiser, and brought in for adjudication,
would be restored.
"The opinions here expressed go far beyond the present case; they embrace cases
where the negroes never have been within the territorial limits of the nation of
which the claimant is a citizen."
Here reference is made to the case of the Antelope, in 10 Wheaton, to which I shall
hereafter solicit the particular attention of the Court, as I purpose to examine
it in great detail, as to all the principles that have been supposed to be decided
by that case, and especially on the point here alluded to, concerning which Chief
Justice Marshall says that the Court was divided, therefore no principle is
decided. That was the most solemn and awful decision that ever was given by
any Court. The Judges did not deliver their opinions for publication, or the reasons,
because the court was divided. This case is laid at the foundation of the argument
or opinion of the Attorney-General on which this whole proceeding is based, and it
is appealed to in all the discussions as authority against the rights of these unfortunate
people. I shall, therefore, feel it to be my duty to examine it to the bottom.
The second principle drawn by the late Attorney General, if he had reasoned on the
subject as men ought to reason, is in favor of the claims of the Africans. The Antelope
was engaged in the slave trade south of the Line, where it was not then prohibited
by the laws of Spain. The decision of the Supreme Court, such as it was, was in affirmance
of the decree of the court below. Judge Davies, in the District Court of Georgia,
and Judge Johnson, of the Circuit Court, said that, if the slave trade had at that
time been abolished by Spain, their decision would have been otherwise. That trade
is now abolished by Spain.
The late Attorney General says "the courts of no country execute the penal laws
of another." I may ask, does any nation execute the slave laws of another
country ? Is not the slave system, the Code Noir, as peculiar as the
revenue system or the criminal code? These men were found free, and they cannot now
be decreed to be slaves, but by making them slaves. By what authority will this Court
undertake to do this? What right has Ruiz to claim these men as his property, when
they were free, and so far from being in his possession when taken, he was in theirs.
If there is no right of visitation and search by the cruisers of one nation over
those of another, by what right has this ship been taken from the men who had it
in their possession? The captors in this case, are Gedney and Meade, the owners are
the Africans. The Attorney says,
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"This vessel was not engaged in the slave trade; she was employed lawfully
in removing these negroes, as slaves from one part of the Spanish dominions to another,
precisely in the same way that slaves are removed, by sea, from one slave State to
another in our own country. I consider the facts as stated, so far as this government
is concerned, as establishing a right of ownership to the negroes in question, in
the persons in whose behalf the minister of Spain has made a demand upon the government
of the U. States."
Now, here I take issue. The vessel was engaged in the slave trade. The voyage
in the Amistad was a mere continuation of the original voyage in the Tecora. The
voyage in its original intention was not accomplished until the slaves had reached
their final destination on the plantation. This is the principle universally applicable
to coasting vessels. I say further, that the object of Ruiz and Montes was illegal,
it was a part of the voyage from Lomboko, and when they fell into the hands of Lieutenant
Gedney, they were steering in pursuance of that original voyage. Their object was
to get to Porto Principe, and of course the voyage was to them an unlawful one. The
object of the Africans was to get to a port in Africa, and their voyage was
lawful. And the whole character of the affair was changed by the transactions that
took place on board of the ship. The late Attorney, however, comes to the conclusion
that the courts of the United States cannot proceed criminally against these people,
that the provisions of the Acts of Congress against the slave trade are not applicable
to Ruiz and Montes, and so he recurs to the 9th Article of the Treaty of 1795. I
have nothing to add to what I have before said respecting the treaty. It can have
no possible application in this case.
The late Attorney General now comes to a conclusion as to what is to be done—-a conclusion
which it is not in my power to read to the Court without astonishment, that such
an opinion should ever have been maintained by an Attorney General of the United
States.
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"My opinion further is, that the proper mode of executing this article of treaty,
in the present case, would be for the President of the United States to issue his
order, directed to the Marshal in whose custody the vessel and cargo are, to deliver
the same to such persons as may be designated by the Spanish minister to receive
them. The reasons which operate in favor of a delivery to the order of the Spanish
minister are—-
"1. The owners of the vessel and cargo are not all in this country, and, of
course, a delivery cannot be made to them.
"2. This has become a subject of discussion between the two Governments, and,
in such a case, the restoration should be made to that agent of the Government who
is authorized to make, and through whom the demand is made.
"3. These negroes are charged with an infraction of the Spanish laws; therefore,
it is proper that they should be surrendered to the public functionaries of that
Government, that if the laws of Spain have been violated, they may not escape punishment.
"4. These negroes deny that they are slaves; if they should be delivered to
the claimants, no opportunity may be afforded for the assertion of their right to
freedom. For these reasons, it seems to me that a delivery to the Spanish minister
is the only safe course for this Government to pursue."
That is the opinion, which the Secretary of State told the Spanish minister the American
Cabinet had adopted! That these MEN, being at that time in judicial custody of the
Court of the United States, should be taken out of that custody, under an order of
the President, and sent beyond seas by his sole authority! The Cabinet adopted that
opinion; why, then, did they not act upon it? Why did not the President send his
order to the Marshal to seize these men, and ship them to Cuba, or deliver them to
the order of the Spanish Minister? I am ashamed! I am ashamed that such an opinion
should ever have been delivered by any public officer of this country, executive
or judicial. I am ashamed to stand up before the nations of the earth, with such
an opinion recorded as official, and what is worse, as having been adopted by the
government:—-an opinion sanctioning a particular course of proceeding, unprecedented
among civilized countries, which was thus officially sanctioned,
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and yet the government did not dare to do it. Why did they not do it? If this opinion had been carried into effect, it would have settled the matter at once, so far as it related to these unfortunate men. They would have been wrested from that protection, which above all things was their due after they had been taken into custody by order of the Court, and would have been put into the power of "public vengeance" at Havana. Yet there was not enough. There seems to have been an impression that to serve an order like that would require the aid of a body of troops.—-The people of Connecticut never would, never ought to have suffered it to be executed on their soil, but by main force. So the Spanish minister says his government has no ship to receive these people, and the President must therefore go further, and as he is responsible for the safe keeping and delivery of the men, he must not only deliver them up, but ship them off in a national vessel, so that there may be no Habeas Corpus from the State Courts coming to the rescue as soon as they are out of the control of the judiciary. The suggestion, which first came from the District Attorney, that the Court would undoubtedly place the Africans at the mercy of the Executive, is carried out by an announcement from the Secretary of State, of an agreement with Mr. Argaiz to send them to Cuba in a public ship. Here is the memorandum of the Secretary of State to the Secretary of the Navy.
DEPARTMENT OF STATE, January 2, 1840.
"The vessel destined to convey the negroes of the Amistad to Cuba, to be ordered
to anchor off the port of New Haven, Connecticut, as early as the 10th of January
next, and be in readiness to receive said negroes from the marshal of the United
States, and proceed with them to Havana, under instructions to be hereafter transmitted.
"Lieutenant Gedney and Meade to be ordered to hold themselves in readiness to
proceed in the same vessel, for the purpose of affording their testimony in any proceedings
that may be ordered by the authorities of Cuba in the matter.
"These orders should be given with special instructions that they are not to
be communicated to any one."
Well, the order was given by the Secretary of the Navy, that the schooner Grampus
should execute this honorable service.
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The Secretary of the Navy to the Secretary of State.
"NAVY DEPARTMENT, Jan. 2, 1840.
"SIR,—I have the honor to state that, in pursuance
of the memorandum sent by you to this department, the United States schooner Grampus,
Lieutenant Commanding John S. Paine, has been ordered to proceed to the bay of New
Haven, to receive the negroes captured in the Amistad. The Grampus will probably
be at the point designated a day or two before the 10th inst., and will there await
her final instructions in regard to the negroes."
A celebrated state prisoner, when going to the scaffold, was led by the statue of
Liberty, and exclaimed," O, Liberty! how many crimes are committed in thy name!"
So we may say of our gallant navy, "What crimes is it ordered to commit! To
what uses is it ordered to be degraded!"
On the 7th of January, the Secretary of State writes to the Secretary of the Navy,
acknowledging the receipt of his letter of the 3d, informing him that the schooner
Grampus would receive the negroes of the Amistad,"for the purpose of conveying
them to Cuba, in the event of their delivery being adjudged by the circuit court,
before whom the case is pending." This singular blunder, in naming the court,
shows in what manner and with how little care the Department of State allowed itself
to conduct an affair, involving no less than the liberties and lives of every one
of my clients. This letter inclosed the order of the President to the Marshal of
Connecticut for the delivery of the negroes to Lieut. Paine. Although disposing of
the lives of forty human beings, it has not the form or solemnity of a warrant, and
is not even signed by the President in his official capacity. It is a mere order.
"The Marshal of the United States for the district of Connecticut will deliver
over to Lieut. John S. Paine, of the United States Navy, and aid in conveying on
board the schooner Grampus, under his command, all the negroes, late of the Spanish
schooner Amistad, in his custody, under process now pending before the Circuit court
of the United States for the district of Connecticut. For so doing, this order will
be his warrant.
"Given under my hand, at the city of Washington, this 7th day of January, A.
D. 1840.
"M. VAN BUREN,
"By the President:
"John Forsyth, Sec. of State."
End Part 3.
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