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Adams, John Quincy. Argument Before the Supreme Court 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.
_____________________
IV.
[78] Return to top
That order is good for nothing at all. It did not even describe the court correctly,
under whose protection these unfortunate people were. And on the 11th of January,
the District Attorney had to send a special messenger, who came, it appears all the
way to Washington in one day, to inform the Secretary that the negroes were not holden
under the order of the Circuit Court but of the District Court. And
he says, "Should the pretended friends of the negroes"—-the
pretended friends!—"obtain a writ of Habeas Corpus, the Marshal would not justify
under that warrant." And he says, "the Marshal wishes me to inquire"—-a
most amiable and benevolent inquiry--"whether in the event of a decree requiring
him to release the negroes, or in case of an appeal by the adverse party, it is
expected the Executive warrant will be executed"—-that is, whether
he is to carry the negroes on board of the Grampus in the face of a decree of the
court. And he requests instructions on the point. What a pretty thing it w ould have
been, if he had received such instructions, in the face of a decree of the court!
I should like to ask him which he would have obeyed. At least, it appears, he had
such doubts whether he should obey the decree of the court, that he wanted instructions
from the President. I will not say what temper it shows in the Marshal and the District
Attorney.
On the 12th of January, the very next day after the letter of the District Attorney
was written at New Haven, the Secretary of State replies in a dispatch which is marked
" confidential:"
"[CONFIDENTIAL.]
"DEPARTMENT OF STATE, Jan. 12, 1840.
"SIR,—-Your letter of the 11th instant has just been received.
The order for the delivery of the negroes of the Amistad is here with returned, corrected
agreeably to your suggestion. With reference to the inquiry from the Marshal, to
which you allude, I have to state, by direction of the President, that, if the decision
of the court is such as is anticipated, the order of the President is to be carried
into execution, unless an appeal shall actually have been interposed. You are not
to take it for granted that it will be interposed. And if, on the contrary, the decision
of the court is different, you are to take out an appeal, and allow things to remain
as they are until the appeal shall have been decided.
"I am, sir, your obedient servant,
"JOHN FORSYTH.
"W. S. HOLABIRD, Esq.,
"Attorney U. S.for Dist. of Conn."
[79] Return to top
Now, may it please your Honors, this corrected order, the final order of the
President of the United States, is not in evidence, it does not appear among the
documents communicated to Congress, and I feel some curiosity to know how it was
corrected. I have heard it intimated that the President of the United States never
knew it had been changed, and that the alternative was made, perhaps by a clerk in
the State Department, just by drawing his pen through the word circuit, and
interlining the word district. I put it to your Honors to say what sort of
regard is here exhibited for human life and for the liberties of these people. Did
not the President know, when he signed that order for the delivery of MEN to the
control of an officer of the navy to be carried beyond seas, he was assuming a power
that no President had ever assumed before? It is questionable whether such a power
could nave been exercised by the most despotic government of Europe. Yet this business
was coolly dispatched by a mere informal order, which order was afterwards altered
by a clerk.
The Secretary of State further instructs the District Attorney, that "if the
decision of the Court shall be such as is anticipated, the order of the President
is to be carried into execution, unless an appeal is actually interposed," and
he is "NOT TO TAKE IT FOR GRANTED THAT IT WILL BE INTERPOSED." The Government
then confidently "anticipated" that the negroea would be delivered up;
and the Attorney was directed not to allow them a moment of time to enter an appeal.
They were to be put on board of the Grampus instantly, and deprived, if possible,
of the privilege of appealing to the higher Courts. Was this JUSTICE ?
But after all, the order did not avail. The District Judge, contrary to all these
anticipations of the Executive, decided that the thirty-six negroes taken by Lieut.
Gedney and brought before the Court on the certificate of the Governor General of
Cuba, were FREEMEN; that they had been kidnapped in Africa; that they did not own
these Spanish names; that they were not ladinos, and were not correctly described
in the passport, but were new negroes bought by Ruiz in the depot of Havana, and
fully entitled to their liberty.
[80] Return to top
Such was the disposal intended, deliberately intended, by a President of the United States to be made, of the lives and liberty of thirty-six human beings!—-The Attorney General of the United States, at once an Executive and a judicial officer of the American people, bound in more than official duty to respect the right of personal liberty and the authority of the Judiciary Department had given a written opinion, that, at the instigation of a foreign minister, the President of the United States should issue his order, directed to the marshal to whose custody these persons had been committed, by order of the judge, as prisoners and witnesses, and commanding that marshal to wrest them from the hands of justice, and deliver them to such persons as should be designated by that same foreign minister to receive them. Will this Court please to consider for one moment, the essential principle of that opinion? Will this Court inquire, what, if that opinion had been successfully carried into execution, would have been the tenure by which every human being in this Union, man, woman, or child, would have held the blessing of personal freedom? Would it not have been by the tenure of Executive discretion, caprice or tyranny? Had the precedent once been set and submitted to, of a nameless mass of judicial prisoners and witnesses, snatched by Executive grasp from the protective guardianship of the Supreme Judges of the land, (gubernativamente,) at the dictate of a foreign minister, would it not have disabled forever the effective power of the Habeas Corpus? Well was it for the country--well was it for the President of the United States himself that he paused before stepping over this Rubicon!—-That he said—-"We will proceed no further in this business. "And yet, he did not discard the purpose, and yet he saw that this executive trampling at once upon the judicial authority and upon personal liberty would not suffice, either to satisfy the Spanish Minister or to satiate the public vengeance of the barracoon slave-traders. Had the unfortunate Africans been torn away from the protection of the Court, and delivered up to the order of the Spanish Minister, he possessed not the means of shipping them on to the Island of Cuba. The indignation of the freemen of Connecticut, might not tamely endure the sight, of thirty-six free persons, though Africans, fettered and manacled in their land of freedom, to be transported beyond the seas, to perpetual hereditary servitude or to death, by the servile submission of an American President to the insolent dictation of a foreign minister. There were judges of the State Courts in Connecticut, possessing the power of issuing the writ of Habeas Corpus, paramount even to the obsequiousness of a federal marshal to an Executive mandate.
[81] Return to top
The opinion of the Attorney General, comprehensive as it was for the annihilation
of personal liberty, carried not with it the means of accomplishing its object. What
then was to be done? To save the appearance of a violent and shameless outrage upon
the authority of the judicial courts, the moment was to be watched when the Judge
of the District Court should issue his decree, which it was anticipated would
be conformable to the written opinion of the Attorney General. From that decree the
Africans would be entitled to an appeal, first to the Circuit and eventually to the
Supreme Court of the United States—-but with suitable management, by one and the
same operations they might be choused out of that right, the Circuit and Supreme
Courts ousted of their jurisdiction, and the hapless captives of the Amistad delivered
over to slavery and to death.
For this purpose at the suggestion of the District Attorney Holabird, and at the
requisition of the dictatorial Spanish Minister, the Grampus, one of the smallest
public vessels of the United States, a schooner of burden utterly insufficient to
receive and contain under the shelter of her main deck, thirty-six persons additional
to the ship's company, was in the dead of winter, ordered to repair from the navy
yard at Brooklyn to New Haven where the Africans were upon trial, with this secret
order which I have read to the Court, signed "Martin Van Buren," commanding
the Marshal of the District of Connecticut to deliver over to Lieut. John S. Paine,
commander of the Grampus, and aid in conveying on board that schooner all the
negroes, late of the Spanish schooner Amistad, in his custody, under process
[now] pending before the Circuit Court of the United States for the District of Connecticut.
Of this ever memorable order, this Court will please to observe that it is in form
and phraseology, perfectly conformable to the vritten opinion which had been given
by the Attorney General. It is not conditional, to be executed only in the
event of a decision by the court against the Africans, but positive and unqualified
to deliver up all the Africans in his custody, under process NOW
pending. There was nothing in the order itself to prevent Lieut. Paine from delivering
it to the marshal, while the trial was pending; it carries out in form the whole
idea of the Attorney General's opinion, that the President's order to the marshal
is of itself all sufficient to supersede the whole protective authority of the judiciary—-and
with this pretension on the face of the order, is associated another, if possible
still more outrageous upon every security to personal liberty, in the direction to
the marshal to deliver over to Lieut. Paine all the negroes, late of the Amistad,
under his custody.
[82] Return to top
Is it possible that a President of the United States should be ignorant that the
right of personal liberty is individual. That the right to it of every one, is his
own—JUS SUUM; and that no greater violation of his official
oath to protect and defend the Constitution of the United States, could be committed
than by an order to seize and deliver up at a foreign minister's demand, thirty-six
persons, in a mass, under the general denomination of all, the negroes, late
of the Amistad. That he was ignorant, profoundly ignorant of this self-evident truth,
inextinguishable till yonder gilt framed Declarations of Independence shall perish
in the general conflagration of the great globe itself. I am constrained to believe—-for
to that ignorance, the only alternative to account for this order to the Marshal
of the District of Connecticut, is wilful and corrupt perjury to his official presidential
oath.
But ignorant or regardless as the President of the United States might be of the
self-evident principles of human rights, he was bound to know that he could not lawfully
direct the delivery up to a foreign minister, even of slaves, of acknowledged undisputed
slaves, in an undefined, unspecified number. That the number must be defined, and
individuals specifically designated had been expressly decreed by the Supreme Court
of the United States in that very case of the Antelope so often, and as I shall demonstrate
so erroneously quoted as a precedent for the captives of the Amistad.
"Whatever doubts (said in that case Chief Justice Marshall) may attend the question
whether the Spanish claimants are entitled to restitution of ALL
the Africans taken out of their possession with the Antelope we cannot doubt the
propriety of demanding ample proof of the extent of that possessiont . Every
legal principle which requires the plaintif to prove his claim in any case, applies
with full force to this point; and no countervailing consideration exists. The onus
probandi, as to the number of Africans which were on board, when the vessel
was captured, unquestionably lies on the Spanish libellants. Their proof is not satisfactory
beyond 93. The individuals who compose this number must be designated to
the satisfaction of the Circuit Court." 10 Wheaton 128. And this decision acquires
double authority, as a precedent to establish the principles which it affirms, inasmuch
as it was given upon appeal, and reversed the decision of the Circuit Court, which
had resorted to the drawing of lots, both for the designation of the number, and
for the specification of individuals.
[83] Return to top
Lawless and tyrannical; (may it please the Court—-Truth, Justice, and the Rights
of human kind forbid me to qualify these epithets) Lawless and Tyrannical, as this
order thus was upon its face, the cold blooded cruelty with which it was issued—-was
altogether congenial to its spirit—-I have said that it was issued in the dead of
winter—-and that the Grampus was of so small a burden as to be utterly unfit for
the service upon which she was ordered. I now add that the gallant officer who commanded
her remonstrated, with feelings of indignation, controlled only by the respect officially
due from him to his superiors against it. That he warned them of the impossibility
of stowing this cargo of human flesh and blood beneath the deck of the vessel, and
that if they should be shipped in the month of January, on her deck, and the utmost
certain casualty if a storm should befal them on the passage to Cuba, they must all
inevitably perish. He remonstrated in vain! He was answered only by the mockery of
an instruction, to treat his prisoners with all possible tenderness and attention.-—If
the whirlwind had swept them all into the ocean he at least would have been guiltless
of their fate.
But although the order of delivery was upon its face absolute and unconditional,
it was made conditional, by instructions from the Secretary of State to the District
Attorney. It was to be executed only in the event of the decision of the court being
favorable to the pretended application of the Spanish minister, and Lieutenant Paine
was to receive the negroes from the custody of the marshal as soon as their
delivery should have been ordered by the court.
"Letting I dare not wait upon I would," a direct collision with the authority
of the judicial tribunals was cautiously avoided; and a remarkable illustration of
the thoughtless and inconsiderate character of the whole Executive action in this
case, appears in the fact, that with all the cunning and intricate stratagems to
grab and ship off these poor wretches to Cuba, neither the President of the United
States who signed, nor the Secretary of State who transmitted the order knew,
but both of them mistook the court, before which the trial of the Africans was pending.
They supposed it was the Circuit, when in fact it was the District Court.
[84] Return to top
The Grampus arrived at New Haven three days before the decision of Judge Judson
was pronounced. Her appearance there, in January, when the ordinary navigation of
Long Island Sound is suspended, coming from the adjoining naval station at Brooklyn,
naturally excited surprise, curiosity, suspicion. What could be the motive of the
Secretary of the Navy for ordering a public vessel of the United States upon such
a service at such a time? Why should her commander, her officers and crew be exposed,
in the most tempestuous and the coldest month of the year, at once to the snowy hurricanes
of the northeast, and the icebound shores of the northwest? These were questions
necessarily occurring to the minds of every witness to this strange and sudden apparition.
Lieut. Paine and his officers were questioned why they were there, and whither they
were bound? They could not tell. The mystery of iniquity sometimes is but a transparent
veil and reveals its own secret. The fate of the Amistad captives was about to be
decided as far as it could be by the judge of a subordinate tribunal. The surrender
of them had been demanded of the Executive by a foreign minister, and earnestly pressed
upon the court by the President's officer, the District Attorney. The sudden and
unexpected appearance of the Grampus, with a destination unavowed, was a very intelligble
signal of the readiness, of the willingness, of the wish of the President to comply
with the foreign minister's demand. It was a signal equally intelligible to the political
sympathies of a judge presumed to be congenial to those of a northern President with
southern principles, and the District Attorney in his letter of 20th December had
given soothing hopes to the Secretary of State, which he in turn had communicated
in conference, on the 28th of December, to the Spanish minister, that the decree
of the judge, dooming the Africans to servitude and death in Cuba, would be as pliant
to the vengeful thirst of the barracoon slave-traders, as that of Herod was in olden
times to the demand of his dancing daughter for the head of John the Baptist in a
charger.
[85] Return to top
But when Lieut. Paine showed to the District Attorney the Executive warrant to
the marshal for the delivery of the negroes, he immediately perceived its nullity
by the statement that they were in custody under a process from the "Circuit
Court" and that the same error had been committed in the instructions to the
marshal. "In great haste," therefore, he immediately dispatched Lieut.
Meade, as a special messenger to Washington, requesting a correction of the error
in the warrant and instructions; giving notice that if the pretended friends
of the negroes obtain a writ of habeas corpus, the marshal could not justify under
the warrant as it was; and that the decision of the court would undoubtedly be had
by the time the bearer of the message would be able to return to New Haven.
This letter was dated the 11th of January, 1840. The trial had already been five
days "progressing." The evidence was all in, and the case was to be submitted
to the court on that day. Misgivings were already entertained that the decision of
the judge might not be so complacent to the longings of the Executive department
as had been foretold and almost promised on the 20th of December. Mr. Holabird, therefore,
at the desire of the Marshal propounds that decent question, and requests precise
instructions, whether in the event of a decree by the court requiring the Marshal
to release the Negroes, or in case of an appeal by the adverse party, it was expected
the EXECUTIVE warrant [to ship off the prisoners in the Grampus to Cuba,] would be
executed?" These inquiries may account perhaps for the fact that the same Marshal,
after the District and Circuit Courts had both decided that these negroes
were free, still returned them upon the census of the inhabitants of Connecticut
as Slaves.
The Secretary of State was more wary. The messenger, Lieut. Meade, bore his dispatch
from New Haven to Washington in one day. On the 12th of January, Mr. Forsyth
in a confidential letter to Mr. Holabird informs him that his missive of the
day before had been received. That the order for the delivery of the Negroes to Lieut.
Paine of the Grampus was returned, corrected agreeably to the District Attorney's
suggestion—-by whom corrected no uninitiated man can tell. Of the final warrant of
Martin Van Buren, President of the United States, to the Marshal of the District
of Connecticut, to ship for transportation beyond the seas, an undefined, nameless
number of human beings, not a trace remains upon the records or the files of any
one of the Executive Departments, and when nearly three months after this transaction
the documents relating to it were, upon a call from the House of Representatives,
communicated to them by massage from Mr. Vale Buren himself, this original, erroneous,
uncorrected order of the 7th of January, 1840, was the only one included in the communication.
[86] Return to top
But in.the confidential answer of the Secretary of State of the 12th of January
to the inquiries of the Marshal, he says, "I have to state by direction of the
President, that if the decision of the Court is such as is anticipated,
(that is, that the captives should be delivered up as slaves,) the order of the President
is to be carried into execution, unless an appeal shall actually have been interposed,
you are not to take it for granted that it will be interposed. And
if on the contrary the decision of the Court is different, you are to take
out an appeal, and allow things to remain as they are until the appeal shall have
been decided." The very phraseology of this instruction is characteristic of
its origin, and might have dispensed the Secretary of State from the necessity of
stating that it emanated from the President himself. The inquiry of the Marshal was
barefaced enough; whether, if the Executive warrant and the judicial decree should
come in direct conflict with each other, it was expected that he should obey the
President, or the Judge ? No! says the Secretary of State. If the decree
of the Judge should be in our favor, and you can steal a march upon the negroes by
foreclosing their right of appeal, ship them off without mercy and without delay:
and if the decree should be in their favor, fail not to enter an instantaneous appeal
to the Supreme Court where the chances may be more hostile to self-emancipated slaves.
Was ever such a scene of Liliputian trickery enacted by the rulers of a great, magnamimous,
and Christian nation? Contrast it with that act of self emancipation by which the
savage, heathen barbarians Cinque and Grabeau liberated themselves and their fellow
suffering countrymen from Spanish slave-traders, and which the Secretary of State,
by communion of sympathy with Ruiz and Montes, denominates lawless violence.
Cinque and Grabeau are uncouth and barbarous names. Call them Harmodius and Aristogiton,
and go back for moral principle three thousand years to the fierce and glorious democracy
of Athens. They too resorted to lawless violence, and slew the tyrant to redeem
the freedom of their country. For this heroic action they paid the forfeit of their
lives: but within three years the Athenians expelled their tyrants themselves, and
in gratitude their self-devoted deliverers decreed, that thenceforth no slave should
ever bear either of their names. Cinque and Grabeau are not slaves. Let them bear
in future history the names of Harmodius and Aristogiton.
[87] Return to top
This review of all the proceedings of the Executive I have made with the utmost pain,
because it was necessary to bring it fully before your Honors, to show that the course
of that department had been dictated, throughout, not by justice but by sympathy---and
a sympathy the most partial and unjust. And this sympathy prevailed to such a degree,
among all the persons concerned in this business, as to have perverted their minds
with regard to all the most sacred principles of law and right, on which the liberties
of the people of the United States are founded; and a course was pursued, from the
beginning to the end, which was not only an outrage upon the persons whose lives
and liberties were at stake, but hostile to the power and independence of the judiciary
itself.
I am now, may it please your Honors, obliged to call the attention of the Court to
a very improper paper, in relation to this case, which was published in the Official
Journal of the Executive Administration, on the very day of the meeting of this Court,
and introduced with a commendatory notice by the editor, as the production of one
of the brightest intellects of the South. I know not who is the author, but it appeared
with that almost official sanction, on the day of meeting of this Court. It purports
to be a review of the present case. The writer begins by referring to the decision
of the District Court and says the case is "one of the deepest importance to
the southern states." I ask, may it please your Honors, is that an appeal to
JUSTICE? What have the southern states to do with the case, or what has the case
to do with the southern states? The case, as far as it is known to the courts of
this country, or cognizable by them, presents points with which the southern states
have nothing to do. It is a question of slavery and freedom between foreigners; of
the lawfulness or unlawness of the African slave trade; and has not, when properly
considered, the remotest connection with the interests of the southern states.
What was the purpose or intent of that article, I am not prepared to say, but it
was evidently calculated to excite prejudice, to arouse all the acerbities of feeling
between different sections of this country, and to connect them with this case, in
such a manner as to induce this Court to decide it in favor of the alledged interests
of the southern states, and against the suppression of the African slave trade. It
is not my intention to review the piece at this time. It has been done, and ably
done, by more than one person. And after infinite difficulty, one of these answers
has been inserted in the same official journal in which the piece appeared. I now
wish simply, to refer your Honors to the original principle of slavery, as laid down
by this champion of the institution. It is given by this writer as a great principle
of national law and stands as the foundation of his argument. I wish, if your Honors
deem a paper of this kind, published under such circumstances, worthy of consideration
in the decision of a case, that your Honors would advert to that principle, and say
whether it is a principle recognized by this Court, as the ground on which it will
decide cases.
[88] Return to top
"The truth is, that property in man has existed in all ages of the world,
and results from the natural state of man, which is war. When God created
the first family and gave them the fields of the earth as an inheritance, one of
the number, in obedience to the impulses and passions that had been implanted in
the human heart, rose and slew his brother. This universal nature of man is alone
modified by civilization and law. War, conquest, and force, have produced slavery,
and it is state necessity and the internal law of self preservation, that will ever
perpetuate and defend it."
There is the principle, on which a particular decision is demanded from this Court,
by the Official Journal of the Executive, on behalf of the southern states? Is that
a principle recognized by this Court? Is it the principle of that DECLARATION? [Here
Mr. A. pointed to the Declaration of Independence, two copies of which hang before
the eyes of the Judges on the bench.] It is alledged in the Official Journal, that
war gives the right to take the life of our enemy, and that this confers a right
to make him a slave, on account of having spared his life. Is that the principle
on which these United States stand before the world? That DECLARATION says that every
man is "endowed by his Creator with certain inalienable rights," and that
"among these are life, liberty, and the pursuit of happiness." If these
rights are inalienable, they are incompatible with the rights of the victor to take
the life of his enemy in war, or to spare his life and make him a slave. If this
principle is sound, it reduces to brute force all the rights of man. It places all
the sacred relations of life at the power of the strongest. No man has a right to
life or liberty, if he has an enemy able to take them from him. There is the principle.
There is the whole argument of this paper. Now I do not deny that the only principle
upon which a color of right can be attributed to the condition of slavery
is by assuming that the natural state of man is War.
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The bright intellect of the South, clearly saw, that without this principle for
a corner stone, he had no foundation for his argument. He assumes it therefore without
a blush as Hobbes assumed it to prove that government and despotism are synonymous
words. I will not here discuss the right or the rights of slavery, but I say that
the doctrine of Hobbes, that War is the natural state of man, has for ages
been exploded, as equally disclaimed and rejected by the philosopher and the Christian.
That it is utterly incompatible with any theory of human rights, and especially with
the rights which the Declarntion of Independence proclaims as self-evident truths.
The moment you come to the Declaration of Independance, that every man has a right
to life and liberty, an inalienable right, this case is decided. I ask nothing more
in behalf of these unfortunate men, than this Declaration. The opposite principle
is laid down, not by an unintelligent or unthinking man, but is given to the public
and to this Court, as coming from one of the brightest intellects of the South. Your
Honors see what it comes to when carried out. I will call the attention of the Court
to one more paragraph:--
"Instead of having the negroes placed in a situation to receive punishment for
what offences they may have committed against their masters, those who have been
in Cuba in undisputed possession of property under the Spanish flag were instantly
deprived of that possession, and their final title to the property peremptorily decided
upon by an American court, in defiance of the plainest treaty stipulations. Not only
that, but Ruiz and Montes, Spanish citizens, thus forced into our territory under
appalling circumstances, where common humanity, independent of all law, demanded
that they should be treated with hospitality as unfortunate guests, were actually
thrown into prison under charges which the negroes were instigated to make,
for offences committed against the negroes while they were in Cuba, under the Spanish
jurisdiction. This is the justice of an American court bowed down in disgraceful
subserviency before the bigoted mandates of that blind fanaticism which prompted
the Judge upon the bench to declare in his decree, in reference to one of these negroes,
that, 'Although he might be stained with crime, yet he should not sigh in vain for
Africa;' and all because his hands were reeking with the blood of murdered white
men!! It is a base outrage (I can use no milder language,) upon all the sympathies
of civilized life."
[90] Return to top
That is the complimentary manner in which the courts of the United States are treated
by the brightest intellects of the South, in the Official Journal, and under the
immediate supervision of the Executive Administration of the Government.
During the present session, a further correspondence between the Secretary of State
and the Spanish minister has been communicated to Congress. The Spanish minister
seems to be ever attentive to all that is going on, in all the departments of Government,
with relation to this case. In a letter dated the 20th of March, 1840, he observes
that the Secretary of State had confidently asked him to furnish a copy of
the existing laws of Cuba relative to negro slavery. What was this for? Was the President
of the United States under the impression that before he carried into effect this
exercise of despotic power, to seize MEN by his own warrant, and send them to foreign
countries for punishment by his own order—-there would be some sort of decency, at
least, in having a show of evidence to show that the Spanish law required that they
should be delivered up! The Secretary of State asked Mr. Calderon for evidence in
the case, but he had none to give. He then "confidently" asked Mr. Argaiz
for the law of Spain in the case—-the law, be it remembered, on which the United
States were presenting a suit against individuals, solely, as they alledge, in pursuance
of a demand made by the minister of Spain to that effect. What is the reply? Mr.
Argaiz says he cannot communicate the law officially, because he cannot recognize
the jurisdiction of the Court over the case. Here is another point-blank contradiction
of the material averment of the claim which the United States Government is prosecuting
here—-that the suit is in pursuance of the demand of Spain now pending against the
Government. Mr. Argaiz, therefore, communicates a certain memorandum, "confidentially."
This memorandum begins,
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"Mr. Forsyth was pleased, some time since, to state to the Chevalier de Argaiz,
that it would be expedient to obtain a copy of the laws now in force in the
island of Cuba relative to slavery. The Chevalier de Argaiz therefore immediately
requested from the Captain General of that island every thing on the subject, which
has been determined since the treaty concluded in 1818, between Spain and
England."
Now, may it please the Court, may I inquire why this demand was limited to laws subsequent
to the treaty of 1818? The decree for abolishing the slave trade was issued in 1817.
Why did the Spanish minister limit his request to laws passed after 1818? Why was
not the decree of 1817 brought forward? Was it kept back because he thought, with
Mr. Vega, that the laws had been broken so much in Cuba, that they were not in force?
Or did he think the authentication of that Decree might have some injurious effect
in the trial here? Whatever was the reason, it is certain that, to Mr. Forsyth's
request for "a copy of the laws now in force in the Island of Cuba relative
to slavery," only the laws since 1818 were communicated, and the Decree of 1817,
making the slave trade unlawful and its victims free, was kept back. Even the treaty
of 1835, which was communicated, "the Chevalier de Argaiz requests may be returned
to him," and consequently it does not appear among these papers.
In another letter, dated April 24th, 1840, the Chevalier de Argaiz refers to certain
resolutions of the United States Senate, passed the 15th of the same month, commonly
called Mr. Calhoun's resolutions. I showed the other day, that if these principles
are just, and if they have any application to this case, Lieut.Gedney had no right
to seize the vessel at all. The resolution declares that—
"A ship or vessel on the high seas, in time of peace, engaged in a lawful commerce,
is, according to the laws of nations, under the exclusive jurisdiction of the State
to which her flag belongs; as much so as if constituting a part of its own domain;"
and "if such ship or vessel should be forced, by stress of weather, or other
unavoidable cause, into the port and under the jurisdiction of a friendly power,
she, and her cargo, and persons on board, with their property, and all the
rights belonging to their personal relations as established by the laws of the state
to which they belong, would be placed under the penalty which the laws of nations
extend to the unfortunate under such circumstances."
[92] Return to top
Here it is plain that the vessel was in the hands of the Africans, it was not under
the Spanish flag, they were at peace with the United States, their voyage is lawful,
the personal relations established among the persons on board were that the Africans
were masters end the Spaniards, captives subjects;—-perhaps by the laws of Mendi
they were slaves. So much for the resolutions, which the Secretary of State says
coincide "with principles which the President considers as founded in law and
justice," but which does not alter "the determination he found himself
obliged to make on the reclamation" made for the Amistad "and the property
found on board of her."
I will now make a few observations on the passport, or permit, as it has been called,
which is relied on as of authority sufficient to bind this Court and Government to
deliver up my clients irrevocably as slaves, on a claim of property by Ruiz and Montes.**
Here we have what appears to be a blank passport, filled up with forty-nine Spanish
names of persons, who are described as ladinos, and as being the property
of Don Jose Ruiz. Now, this on the face of it is an imposture. It is not a passport,
that can be inspected as such by this Court, or by any tribunal. It appears on the
face of it to be a passport designed for one person, a man, as there are blanks in
the margin, to be filled up with a description of the person, as to his height, age,
complexion, hair, forehead, eyes, nose, mouth, beard, and particular marks.
**It is thought best to give a copy of this celebrated passport
as it appears in the Congressional Documents, with the exception that the interpolate
word negros is omitted, and the portions of the paper which were in writing
are printed in italics. It will be seen that the signature of the captain General,
of which so much was made, was printed !
|
N. HABANA, 26 de Junio, de 1839. |
|
|
Filiacion. |
Concedo licencia a currenta y nueva ladionos nombrados Antonio, Simon, Lucas Jose, Pedro, Martin, Manuel, Andres, Eduardo, Celedonio, Bartolo, Ramon, Agustin, Evaristo, Casimiro, Melchor, Gabriel, Santorion, Escolastico, Pascual, Estanislao, Desiderio, Nicolas, Esteban, Tomas, Cosme, Luis, Bartolo, Julian, Frederico, Salustiano, Ladislao, Celestino, Epifaneo, Tibureo,Venancio, Felipe, Francisco, Hipolito, Benito, Ysidoro,Vicente, Dionisio, Apoloneo, Esequiel, Leon, Julio, Hipolito, y Zenon. de la propriedad de Don Jose Ruiz, para que pasen a Puerto Principe por mar, debiendo, presentarse con esta al juez territorial respectivo. |
| Estatura - - | |
| Edad - - | |
| Color - - | |
| Pelo - - | |
| Frente - - | |
| Cejas - - | |
| Ojos - - | |
| Nariz - - | |
| Boca - - | |
| Barba - - | |
| Barba - - | |
| Senales particulares. |
Derechos dos real es--una rubricana. ESPELATA. |
|
Commandancia de Matriculas Pasan en la goleta Amistad a la Guanaja, patron Ferrer . MARTINEZ HABANA, y Junio 27, de 1839. |
|
[93] Return to top
This particular description of the person is the very essence of a passport,
as it is designed to identify the individual by the conformity of his person to the
marks given; and a passport is nothing and is good fornothing if it does not accord
with the marks given. The man who presents it must show by this accordance that he
is the person named. Every body who has ever had occasion to use passports knows
this. We are not in the habit of using passports in this country; you may go through
the country from State to State, freely without any passport to show who and what
you are and what is your business. But throughout the continent of Europe, passports
are everywhere necessary. At every town you show your passport to a public officer,
who instantly compares your person with the description, and if it corresponds, you
proceed, but if the description varies from the reality, you cannot pass. That is
the nature of a passport. It says, let the person who bears these marks pass the
custom-house, or the guard, as the case may be. And its validity depends on the accuracy
of the description.
I once had occasion, many years ago to see the operation of these things in a very
remarkable case. I was a passenger in a merchant vessel, bound to the north of Europe.
In passing through the Sound, at Elsinore, we were arrested by a British squadron,
who brought us to, and sent a lieutenant on board to examine our crew. He ordered
all the men to be mustered on deck, and the captain had no alternative but to comply.
It was a most mortifying scene to an American. Every American seaman was obliged
to show his protection, the same thing at sea as a passport on the land, to secure
him from impressment by British cruisers. The officer examined every man carefully,
to see whether his person corresponded with the description in his protection. He
finally found one young man, who was a native of Charlestown, Massachusetts, within
ten miles of where I was born; but his description was not correct, whether through
the blunder of the man who wrote it, or because he had taken another man's protection,
I do not know, but the officer said he had a good mind to take him, and if I had
not been on board, as the bearer of a public commission in the service of the Government,
I have no doubt that man would have been taken, and compelled to serve on board a
British man of war, solely for the want of correspondence of the description with
his person. I mention this to show that the value of a passport, according to the
rules of those countries where such things are used, depends on the description of
the person, and this is all left blank in the paper here presented us as a passport.
There is not a particle of description by which even a single individual named could
be identified. It is not worth a cent. I do not say it is a forgery, but I say its
incompetency to answer the purpose of a passport is apparent on the face of it. Who
knows, or how is this Court to ascertain, that the persons named in this paper are
the same with those taken in the Amistad? No court, no tribunal, no officer, would
accept such a document as a passport. And will this Court grant its decree in a case
effecting both liberty and life on that paper? It is impossible.
[94] Return to top
I now come to the case of the Antelope, as reported in 10 Wheaton, 66, and I ask
particular attention to this case, not only because it brings a show of authority
in favor of the delivery up of slaves, but because I feel bound to entreat the Court,
whether they find a principle settled by that case or not, to settle the question
now upon further and mature consideration. Chief Justice Marshall said, expressly,
in delivering the opinion of the Court, that, as the Court was divided, "no
principle is settled." If there was a principle settled, and that was in favor
of delivering up persons held as slaves by foreign laws, I ask this Court to re-examine
that principle and settle it anew. And if, upon re-examination, by what I should
deem the greatest misfortune to this country, the Court should be divided in this
case, as it was in that, I respectfully ask your Honors to give your separate opinions,
with the reasons. I would not call in question the propriety of the determination
of the Court in that day, severally, to withhold their reasons from the public; the
state of the matter is now materially altered. It has become a point in which the
morals, as well as the liberties of this country, are deeply interested. The public
mind acquiesced before, in postponing the discussion, but now it is no longer a time
for this course, the question must be met, and judicially decided.
THE CASE OF THE ANTELOPE REVIEWED.
The case of the Antelope was of so very extraordinary a character, and the decisions
of the District, Circuit, and Supreme Courts of the United States, on the principles
involved in it, were so variant from and conflicting with one another, that a review
of its history will disclose, eminently, the progress of that moral, religious, and
political revolution in the opinions of mankind which has been, from a period coeval
with that of North American Independence, struggling against the combined powers
and dominions of the earth and of darkness for the suppression of the African slave-trade.
[95] Return to top
In the month of December, 1819, at a time when piracy, from her sympathetic and favorite
haunts of Chesapeake bay, and of Cuba, was habitually sallying forth against the
commerce of the world, but chiefly under the many-colored banners of the newly emancipated
colonies of Spain, transformed into a multitude of self-constituted sovereign and
disunited States, capturing wherever they could be found the trading vessels of Portugal
and of Spain, a privateer, named the Columbia, commanded by a citizen of the United
States named Metcalf, came into the port of Baltimore under the flag of Venezuela–-there
clandestinely shipped a crew of thirty or forty men, not one of whom had ever owed
allegiance to the Republic of Venezuela, and sailed in search of adventure, to pounce
upon the defenseless upon any and every ocean for the spoils. She had scarcely got
beyond the territorial jurisdiction of the United States when she changed her name
of Columbia for that of Arroganta, hoisted the flag of Artigas, then ruler of the
Oriental Republlc of La Plata, and proceeded for the slave-coast of Africa--a mighty
huntress, and her prey was man . There she fell in with sister pirates in
abundance–first an American, from Bristol, Rhode Island, and borrowed twenty-five
negro captives from her; then sundry ostensible Portuguese vessels, from which she
took nearly two hundred; and lastly, a Spaniard from Cuba, fitted out some months
before by a slave-trading house at the Havana, to catch a yet lawful human cargo
from a region south of the equator; for the trade north of the equator had
even then been declared unlawful by Spain. The name of this vessel was, at that time,
the Antelope; and with her and her living merchandise the Arroganta steered for the
coast of Brazil, for a market. There the Arroganta was shipwrecked; her master, Metcalf,
either drowned, or made prisoner with the greater part of his crew; while the remainder,
under the command of John Smith, a citizen of the United States, transhipping themselves
and all their surviving African captives into the Antelope, changed her name to that
of the General Ramirez, and stood for the southern coast of the United States, and
a market .
[96] Return to top
In the month of June, 1820, this vessel, thus freighted, was found hovering on
the coast of Florida, with the evident intention of surreptitiously introducing the
negroes and effecting the sale of them within the United States. She was there in
flagrant violation of two classes of their laws–-those intended to suppress the unlawful
interference of our citizens in the civil war then raging between Spain and her South
American Colonies contending for their independence, and those prohibiting their
participntion in the slave trade, and denouncing it as piracy.
She was reported to Captain John Jackson, then cruising on the satne coast in the
Revenue Cutter Dallas, as a vessel of piratical appearance. He, thereupon, boarded
her; and finding her full of negro slaves, and commanded by John Smith, holding forth
at once a privateering commission from Artigas, and a protection as a citizen and
seaman of the United States, he took possession of her, and brought her into the
port of Savannah, in the judicial district of Georgia, for adjudication.
Upon this plain and simple statement of facts, can we choose but exclaim, if ever
soul of an American citizen was polluted with the blackest and largest participation
in the African slave-trade, when the laws of his country had pronounced it piracy,
punishable with death, it was that of this same John Smith. He had renounced and
violated those rights, by taking a commission from Artigas to plunder the merchants
and mariners of nations in friendship with his own; and yet he claimed the protection
of that same country which he had abandoned and betrayed. Why was he not indicted
upon the act of 15th May, 1820, so recently enacted before the commission of his
last and most atrocious crime?
And can we choose but further exclaim–-if ever hapless African, kidnapped into slavery
by one gang of ruffians, and then stolen by another, and by them attempted to be
smuggled into our country as slaves, and by a fortunate casualty brought within our
jurisdiction and the beneficient operation of our emancipating laws, was entitled
to the blessing of freedom, and the right of being transported under our national
protection to his native land, so was every individual African found by Captain Jackson
on board of the Antelope, and brought within the jurisdiction of this Federal Union.Why
were they not instantly liberated and sent home to Africa by the act of March 3d,
1819.
[97] Return to top
Alas! far otherwise was, in the judicial district of Georgia, the disposal of
this pirate, robber, and traitor to his country! Instead of being indicted for all
or any one of his many violations of the laws of the United States, of nations, and
of humanity, he was not only suffered to go at large, entirely unmolested, but was
permitted to file his claim, before the District Court of the United States in Georgia,
for the restitution to him of the Antelope and all her living cargo, as captured
jure belli, by virtue of his commission from Artigas. This claim was, indeed,
dismissed, with costs, by the judge of the District Court, William Davis. Smith appealed
from that decision to the Circuit Court, the presiding judge of which, William Johnson,
confirmed the decision of the District Court, and spoke with suitable severity, not
of the wickedness, but of the absurdity of Smith's pretension. And here, and in freely
commenting hereafter upon the opinions and decisions upon this case, of these two
judges, William Davis and William Johnson, both long since deceased, truth and justice
require the remark, with all the respect due to their memories as upright judges
and honorable men, that they were both holders of slaves, adjudicating in a State
where slavery is the law of the land. If this circumstance may account for the fact,
that the ministers of national justice in Georgia slumbered over the manifold transgressions
of John Smith, for which he never was prosecuted, it will account no less for that
division of opinion in the Supreme tribunal of the Union, which veiled from public
examination and scrutiny the reasons of each judge for his own opinion, because,
as the Chief Justice declared, NO PRINCIPLE WAS SETTLED. John Smith did not venture
to appeal from the decisions of the District and Circuit Courts against his claim
to the Supreme Court of the United States. His plunder slipped from his hands; but
his treachery to his country for a commission from Artigas, his buccanier and slave
trade piracies, though not even undivulged crimes, yet remained unwhipped
of justice.
On the 27th of July, 1820, Captain John Jackson, in behalf of himself, and of the
officers and crew of the Revenue Cutter Dallas, filed in the District Court a libel
against the Antelope, or General Ramirez, for forfeiture, under the act of Congress
of 20th April, 1818, prohibiting American citizens from engaging in the African slave-trade.
[98] Return to top
At the same Court, Charles Mulvey, vice-consul of Spain, and Francis Sorell, vice-consul
of Portugal, at Savannah, filed each a libel for restitution, the former of 150,
the latter of 130 African negroes, the cargo of the Antelope. To these two libels
Richard Habersham, district attorney of the United States, interposed in their name
a claim to the freedom of all the negroes, on the ground that some American citizen
was interested or engaged in their transportation from Africa.
The Spanish vice-consul claimed the vessel and all the negroes in behalf of the original
fitters out of the Antelope, for the slave-trading voyage, at the Havana.
And Captain Jackson claimed salvage for all the negroes who might be adjudged to
the Spanish and Portuguese vice-consul; and twenty-five dollars a head for all those
who might be declared free, according to the act of Congress.
The judge of the District Court, after rejecting the claim of John Smith, on the
ground of the illegality of the fitting out of the Columbia, or Arraganta, at Baltimore,
and thereby settling the principle, that no capture made by that vessel could be
legal, seems to have forgotten, or overlooked, the violation by the same John Smith
of the laws of the United States for the suppression of the slave-trade; at least,
so far as concerned all the negroes on board the Antelope, excepting only a small
remnant of twenty-five, which had been taken from the American slave-trader,
the Exchange, from Bristol, Rhode Island. John Smith had made no attempt to smuggle
these into the United States separate from the rest. His attempt had been to smuggle
them all in. Why, then, should those taken from the American vessel alone
be declared free, and those taken from the Spaniards and Portuguese doomed
to perpetual slavery?
The judge hunted up sundry old decisions in the Supreme Court of the United States,
and, finally, the case of the Josafa et Segunda, 5 Wheaton, 338, for a principle
"that, upon a piratical or illegal capture, the property of the original owners
cannot be forfeited for the misconduct of the captors in violating the municipal
laws of the country where the vessel seized by them is carried." The application
of which principle to the rights of the respective parties in the case of the Antelope
was, that the property of the Spanish owners of the Antelope could not be forfeited
by the misconduct of John Smith in capturing it, in violation of the laws of the
United States, by virtue of a commission from Artigas. Thus far the principle was
correctly applied; but to that other misconduct of John Smith, the attempt to smuggle
these negroes into the United States, by which they became forfeited, and made free
by the law, whoever might have been their owner; to that misconduct, the precedent
of the Josafa et Segunda had no application whatever, and it was altogether overlooked
in the decision of the district judge, although he decreed freedom to the chance
chosen survivors of the twenty-five negroes of the very same cargo, taken from the
American vessel, though forfeited and liberated by the very same attempt of John
Smith to smuggle them into the United States for sale. It was perfectly immaterial
to the question of forfeiture and liberation to whom all or any of the negroes had
originally belonged. It was the attempt to smuggle them which induced their forfeiture
by the rigor, and their consequent liberation by the beneficence, of the law.
[99] Return to top
But having once introduced this entirely extraneous question, to whom the
negroes on board the Antelope, when captured by Captain Jackson, had originally
belonged, the District Judge proceeded, upon such evidence as he deemed sufficient,
to decide, that those captured in her by the Arraganta, were the property of Spaniards,
and without one title of evidence, to infer, that all the negroes taken from
vessels under Portuguese colors, had been the property of Portuguese subjects, unknown;
and upon these conclusions and assumptions, to adjudge all the negroes, save the
scanty surviving remnant of twenty-five taken from the Exchange of Rhode island,
to the Spanish and Portuguese Vice Consuls.
At this distance of time, who can read such an adjudication of an American judge,
without amazement.
The claim of C. Mulvey [Spanish Vice Consul] was therefore sustained to the Antelope,
and to as many of the negroes, as should appear to be remaining of those found on
board of her at the time of her capture by the Arraganta.
The libel of F.Sorrell, the Portuguese Vice Consul, was sustained against so many
of the slaves as should appear to remain of those taken by the Arraganta from Portuguese
vessels.
And it was further ordered with assent of parties, (that is, of these two parties
the Spanish and Portuguese Vice Consuls, and well they might assent!) that the claim
of John Jackson to salvage, should be sustained as regarded the negroes claimed by
and adjudged to them–-and as regarded those adjudged to the United States, to an
allowance of twenty five dollars for each according the Act of Congress of 3d March,
1819.
[100] Return to top
This decree was pronounced on the 21st of February 1821–-and the clerk of the court
was directed on or before the 26th day of the same month to report to the court the
number of Spanish and Portuguese negroes in the hands of the marshal, distinguishing
the negroes respectively. belonging to each. He was also required to designate the
very small number adjudged to the United States, that is, to the blessed enjoyment
of themselves and their own liberty; and associating with himself two resident merchants,
was at the same time to report the quantum or proportion of salvage to be allowed
to Captain Jackson for the negroes thus reputably and substantially sold by
the judicial authority of the United States to the Spanish and Portuguese Vice Consuls.
This unblushing bargain and sale of human captives, entitled at least by the
intention of the United States laws to their freedom, was the first incident which
brought to a pause the legal standard of morality of a Connecticut District Judge
of the United States in the case of the Amistad captives. An estimate in dollars
and cents of the value at New Haven, of from two to three hundred living
men and women, for the purpose of allowing salvage upon them as merchandise, was
too much for the nerves of a Yankee judge. The authority of the case of the Antelope
was in this particular no precedent for him. The very proposal shocked his moral
sense, and he instantly decided that men and women were not articles for a price
current in the markets overt of Connecticut.
In the markets of Savannah, nothing was more simple. The clerk of the District Court,
with his two associated resident merchants, in obedience to the order of the judge
appraised the negroes taken from the Spanish and Portuguese vessels at three hundred
dollars per head, making the aggregate of sixty-one thousand five hundred dollars
[for 205 souls ]; and they were of opinion that there should be an allowance
of one fourth of said sum to Captain Jackson, his officers and crew, for salvage
on the said negroes.
[101] Return to top
Seventy-five dollar per head! Fifteen thousand three hundred and seventy-five dollars for two hundred and five men and women! What a revolution in the relative value of slaves and of freemen, since the age of Homer! In the estimate of that Prince of Grecian Poets:
Jove fix'd it certain that whatever day
Makes man a slave, takes half his worth away–-
and in the political statistics of the author of the Declaration of Independence
the degradation of the character of man, by the infliction upon him of slavery is
far greater than is asserted by the blind old rhapsodist of Smyrna. But here we have
an inverted proportion of relative value, and Captain Jackson, by the decree of a
Judicial Court of the United States receives twenty-five dollars a head for redeeming
one parcel of Africans from slavery to freedom, while at the same time he was to
receive seventy-five dollars a head for reducing by the same act two other parcels
of the same company from freedom to slavery!
Nor was the manner in which the clerk of the District Court executed the order to
report the relative numbers of the three classes of the captured Africans, the least
extraordinary part of these proceedings.
He reported that two hundred and fifty-eight negroes had been delivered by Captain
John Jackson, Commander of the Revenue Cutter Dallas, on the 25th of July, 1820,
to the marshal of Georgia, from on board the General Ramirez [the Antelope.] That
of that number forty-four had died in the space of seven months –one was missing
and one discharged by order of court, and that the marshal returned two hundred and
twelve negroes which remained to be apportioned .
What had become of the missing one neither the clerk nor the judge seems to
have thought it worth his while to inquire–-why should they ? it was but one man–-and
that man a negro! no further trace of him appears upon the record.
Neither was it thought necessary to record the reason of the favor bestowed by the
court upon one other man in ordering his discharge. The very nature of the order
is its own justification.
But mark the mortality of the negroes! out of 258, four deaths in the space of seven
months! and that, not while crammed between the decks of a slaver in the middle passage,
but on the soil of the American Union, in the mild and healthy climate of Georgia–-in
the custody of an officer commissioned by the President of the United States, and
under the protection of their judicial magistracy. In the case of the Amistad, the
mortality ceased, as soon as the captives were admitted to the privilege of breathing
in the atmosphere of freedom.
[102] Return to top
But if the death of one man in six, in the space of seven months, is deeply distressing
to the sympathies of our nature, what shall we say to a mortality of eighteen out
of twenty five, which the clerk reported as the proportion of deaths among the negroes
taken from the American vessel, the Exchange, and who were by the final decree of
the judge to be liberated? The clerk in his report denominates them American Negroes,
and he reduces their number to SEVEN. Seven African captives out of two hundred and
fifty-eight, was the number to whom the benignity of the laws of the American Union
enacted for the suppression of the African slave trade, and expounded by the District
Court of the United States in Georgia, would have extended the inestimable blessings
of freedom and restoration to their country!
The clerk had been required to report the number of Spanish, Portuguese, and
American negroes–-distinguishing those respectively belonging to each of these classes.
He could obtain no evidence worth a straw upon which to found his report, the Negroes
were all huddled together in one crowd–-John Smith, the pirate, was the only witness
who could tell him which were the negroes taken out of the American vessel, and he
told him that sixteen out of the twenty-five had died, before the capture of the
Antelope by Capt. Jackson. The clerk reported accordingly, and added two to the number
of deaths, as the average loss since the 25th of July; that is, since they
had been in the custody of the marshal.
It further appears from his report that the whole number captured by the Arraganta
had been 331, of which 213 were Portuguese, 93 Spanish, and 25 American. That of
the whole number 119 had died, but in what proportions from the general classes he
could not ascertain. John Smith test)fied that sixteen of the 25 American negroes
had died before the Antelope was taken by Captain Jackson, and the clerk guessed
that two more had died since, because that was the average loss of 9 to 44 out of
258. But neither John Smith nor any one else could point out the individual survivors
of each separate class, and the clerk therefore reported that there had been captured
by the Arraganta 213 Portuguese negroes,of which the average loss was 71;–93 Spanish
negroes which the average loss was 30, and 25 American negroes, of whom the deaths
attested by John Smith were 16, and the subsequent average loss 2, leaving as before
stated 212 to be apportioned–-that is, 142 to the Portuguese Vice Consul, 63 to the
Spanish Vice Consul, and 7 to the United States, to be sent home to Africa; freemen
by the mandate of our laws.
[103] Return to top
That the whole 212 were entitled to the benefit of the same laws, I cannot possibly
doubt–-but such was not the decision of the District Judge. Exceptions were taken
to the report of the clerk, by the District Attorney of the United States, Richard
W. Habersham, and by Spanish Vice Consul Mulvey. The District Attorney still claiming
the freedom of all the negroes, and objecting to the allowance of 75 dollars a head
to Captain Jackson for salvage, though not to the allowance of 25 dollars a head
for their liberation. The Spanish Vice Consul insisting that the number of slaves
allowed to the Spanish claimants was too few and not supported by any testimony in
the case–-and that the allowance to Captain Jackson for salvage was too high, and
ought to be regulated by the act of Congress in relation to the compensation given
in case the said slaves had been decreed to be delivered to the United States.
The Judge confirmed the report of the Clerk in all its parts; and the District Attorney,
in behalf of the United States, and the Spanish Vice Consul, in behalf of the Spanish
claimants, appealed to the Circuit Court, then next to be held at Milledgeville on
the 8th day of May, 1821.
In these decisions of the District Court, is it possible to avert one's eyes from
the glaring light of an over-ruling propensity to narrow down, if not wholly to nullify,
the laws of the United States for the suppression of the African slave trade? To
sustain the claim of the Spanish Vice Consul, the irrelevant question to whom the
Antelope had originally belonged, was introduced; and upon that was engrafted the
deeply controverted question, whether the African slave trade was or was not contrary
to the law of nations. To redeem from forfeiture the Antelope and the negroes captured
in her by the Arraganta, the judge resorted to an argument of counsel in the recently
reported case of the Josefa Segundas, (Wheaton, 338) where it was said, that as piracy
can neither divest nor convey property, a pirate cannot, by a subsequent violation
of the laws of his own country, forfeit the property of which he has acquired possession
by preceding piracy.
[104] Return to top
This seems equivalent to a principle that a second act of piracy protects the
pirate from punishment for the first. However conformable this maximum may be to
the legal standard of morality, the Supreme Court did not so decide in the case of
the Josefa Segunda. They decided, that the capture of a Spanish vessel and negroes
by a privateer, with a commission from Arismendi, under the Republic of Venezuela,
was not piracy; and that the Josefa Segunda, a Spanish vessel, and her cargo of negroes,
captured by authority of such a commission, were forfeited by a subsequent
attempt of the captors to smuggle them into the United States, though taken from
the Spanish owners only by the Venezuelan commission from Arismendi. Now the Columbia
had entered Baltimore, and there enlisted her crew under those identical colors of
Venezuela, and, no doubt, with a commission from the same Arismendi. When metamorphosed
into the Arraganta, she took the Antelope and her negroes, by a commission from Artigas,
quite as efficient to legitimate a prize as that of Arismendi; and John Smith, when
captured with the Antelope and her negroes, by Captain Jackson, produced this commission
from Artigas as his warrant for his possession of the vessel and the slaves. As between
the Arraganta and the Antelope, therefore, the capture of the latter by a commission
from Artigas was not piratical but belligerent, it did divest the Spanish owners
of the property and vest it in the captors, at least sufficiently to make it forfeitable
by their subsequent attempt to smuggle it into the United States; and the decision
of the Supreme Court, in the case of the Josefa Segunda, instead of sustaining that
of the District Judge, in the case of the Antelope, is an authority point blank against
it.
For the allotment of 142 of the negroes to the Portuguese Vice Consul, there was
not even the apology of a Portugucse claimant, other than the Vice Consul himself,
to the property. There was not a shadow of evidence that they were the property of
Portuguese subjects, and none were ever found to claim them. He took the testimony
of the capturing crew, that some of them were taken from vessels under Portuguese
colors; and as he had no evidence that Portugal had then prohibited the slave trade,
he took it for granted that the negroes were all slaves, and, as such, he decreed
that they should be delivered to the Vice Consul.
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With regard to the question, whether Slavery was or was not contrary to the laws of nations, his decision was such as might be expected from a judge, himself a holder of slaves, in a land where slavery has the sanction of law. The question, as I have endeavored to show, did not belong to the case. " But it is contended," (says the District judge) " on the authority of some recent decisions in the British Admiralty Court, that Africans are to be considered free, until it is shown that they are slaves, and that the burden of proof is with those who set up a claim to them. This doctrine may be correct in England, since there negroes have always been held to be free, except in cases where they have voluntarily entered into engagements binding them to service. And yet, inconsistent and contradictory as it may be, slavery has been recognized in all the British American colonies.
"But it does not appear to me that I can admit the proposition in the form
and manner in which it is here presented. The period is not very remote when all
the Governments of Europe, and the several States of the United States when they
were British colonies, and many of them after they became independent, recognized
slavery. But a few years have elapsed since the Government of the United States permitted
her citizens to engage in the African trade. Under such a state of things, it appears
to me that this Court is bound to consider the unfortunate Africans, when found in
the possession of the subjects or citizens of any Government which has heretofore
permitted this traffic as slaves, until the contrary be shown. That this trade, however
inhuman it may be, and however obnoxious it is to every benevolent feeling,
must now be considered legal, notwithstanding its injustice, until it is shown
to have been prohibited by that Government whose subjects claim the right of engaging
in it.
"When it shall have been ascertained that the different Governments of the civilized
world have consented to abolish the trade or after it shall have been ascertained
that any particular State or Government has determined to abolish it, this Court
would consider the claims set up in favor of Africans found in the situation of those
before the Court, in a different point of view. In the one case they would, I
think, uniformly be considered free, until the contrary was shown; in the other
case, they would be so considered when they were found in the possession of the subjects
or citizens of that Government which had determined to abolish them trade.
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"If it could be made to appear to this Court that, at the time these Africans
were taken from the possession of the Spanish and Portuguese Spain and Portugal had
agreed to prohibit their subjects from engaging in the trade, this Court, I think,
would be bound to restore to these people their liberty.
"It is true this Court will not enforce the municipal laws of another country,
by punishing the subjects of that country for the infraction of them; but this
Court would feel bound to respect the rights of Africans no less than it should respect
the rights of any other class of persons. Spain, however, had not, at the time
I am speaking of, abolished the trade to Africa, although she had placed it under
certain restrictions. Can it be permitted to this Court to examine the commercial
regulations or the conventional engagement of Spain?"
It is unnecessary further to repeat verbatim et literatim this argument of
the District judge to sustain his decree. Every word and letter of it teems with
anxiety to sustain the institution of Slavery, and to prostrate instead of enforcing
the laws of the United States for the suppression of the slave trade. What he calls
certain restrictions placed on the trade by Spain, was the total prohibition
of it north of the equator, even then stipulated by Spain in a treaty with Great
Britain, and enacted accordingly by her law. But what of that? The judge admits that
the trade is inhuman, that it is obnoxious to every benevolent feeling,
but he is bound to consider it legal, notwithstanding its injustice, because
many years before it had been practised by Great Britain, and not many years before
by the United States themselves." Is this reasoning for a Court of JUSTICE ?
When all the civilized nations of the earth shall have abolished the African slave
trade, the judge thinks that captured Africans would be considered free, unless
proved to be slaves: and if Spain and Portugal should abolish the slave trade, he
thinks the burden of proof that negroes captured in their vessels were slaves,
would rest upon their captors. In that case, the Court would respect the rights
of Africans as much as those of any other class of persons; but, until then, how
could the Court be permitted to examine into treaty stipulations of Spain, or into
any restriction imposed by Spain upon the traffic of her subjects in slaves?
Such was the reasoning of a slave-holding judge upon slavery and the slave trade,
and by such reasoning did he, out of two hundred and twelve Africans, forfeit to
the United States, to receive from them the blessing of freedom, and restoration
to their native country, reduce the number who should enjoy that privilege to seven
individuals, consigning all the rest to perpetual, hopeless Spanish and Portuguese
slavery!–-Seven freemen to two hundred and five slaves!
The appeal from these decrees to the Circuit Court of the United States came up before Judge William Johnson, in May, 1821. His opinions differed toto caelo from those of the District judge. He increased the number of the Africans to be liberated, as survivors of the twenty-five taken from the American vessels, from seven to sixteen: he rejected the incredible testimony of the pirate, John Smith, that while the mortality of the whole cargo of negroes had averaged not more than one in three, the number of deaths among those taken from the American vessel had amounted to two-thirds of the whole. He reversed the decree of the District judge, which had allotted one hundred and forty-two negroes to the Portuguese Vice Consul; and reserved his claim for further proof, which never was produced. He reduced the allowance of salvage to Captain Jackson, and the crew of the revenue cutter, to fifty dollars a head for the negroes to be delivered to the Spanish Vice Consul, and expressed a strong doubt whether it was a case for salvage at all. He intimated, very significantly, an opinion, that if a claim had been interposed by an agent of Venezuela, or of the Oriental Republic, the capture of the Antelope, by Captain Jackson, must have been pronounced illegal–-a mere marine trespass–punishable in damages rather than rewardable for salvage; and yet he allowed him a salvage of fifty dollars a head for the negroes surrendered to the Spanish Vice Consul. He concurred, however in the most exceptionable of all the opinions of the District judge; namely, that because John Smith had no forfeitable interest in the Antelope and in the negroes, originally belonging to Spanish owners, but then in his possession, and which he was when captured, in the act of smuggling into the United States; therefore they were not forfeited at all, and must be delivered up to the Spanish Vice Consul. The judge of the Circuit Court, sitting alone, after stating the circumstances of the capture by Captain Jackson, and the claims of the respective parties, promptly and without hesitation pronounces, that John Smith was taken in the act of violating the laws of the United States for the suppression of the slave trade; and that, "if the case rested here there would be no difficulty in adjudging the vessel forfeited, for taking these Africans on board at sea, with intent to dispose of them as slaves.
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But this, although perhaps literally within the provisions of the statute, is obviously not within the intent and meaning." Why perhaps, literally within the provisions of the statute? No reader of the English language can read the provisions of the statute and entertain a doubt that they extend literally to the case–-why not within its intent and meaning? Never was an obiter dictum of a judge more peremptory or more gratuitous! There is not a word, not a letter in the statute to authorize the intention of shielding from forfeiture a slave trading smuggler, because the captain was not her owner. The forfeiture attaches to the action, the violation of the laws against the slave trade, and to the instrument used for that violation, without inquiring to whom that instrument belongs. The mischief to be remedied by the law, was the introduction of African slaves into the United States. -–The vessel is the instrument with which the violation of the law was effected, and by which the forfeiture was incurred. Neither justice nor policy could require an exemption from the forfeiture, because the captain in possession of the vesel and employing her in violation of the law, was not her lawful owner. The judge says, there are reiterated decisions of the American courts, that a capture made under an illegal American outfit is not belligerent, but void, and producing no change of right; and from this it follows, that Smith had no interest on which the forfeiture inflicted by law for this offence could attach. The judge names no one of these reiterated decisions, and we have seen that the only one specifically cited by the District judge, in support of the same principle, was a clear authority against it. There were no doubt decisions that captures of friendly foreign vessels, by American privateers illegally fitted out in our ports, and bearing South American commissions, did not so divest the property, but that it might be restored by our courts, in controversy between the captors and the original owners --but that the laws of the United States, prescribing penalties of forfeiture for crimes, should be violated with impunity, because the slave smuggler had stolen the instrument with which he committed the crime! No! I trust the Antelope is, and will for ever remain, the solitary case in which such a principle can claim the sanction of the course of the United States!
End Part 4
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