View Document Frames
Adams, John Quincy. Argument Before the Supreme Court
of the United States, Appellants, vs. Cinque and Other Africans Captured Aboard the
Amistad (Delivered 24 Feb. and 1 Mar. 1841). New York: S. W. Benedict, 1841.
TABLE OF CONTENTS: 109,
110, 111, 112,
113, 114, 115,
116, 117, 118,
119, 120, 121,
122, 123, 124,
125, 126, 127, 128,
129, 130, 131, 132,
133, 134, 135.
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.
_____________________
V.
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to top
The wild and glaring inconsistency not only between the opinions and decrees of the
District and Circuit Courts of the United States, in the case of the Antelope, but
between the opinions and decrees of each of those Courts and itself discloses in
crystal transparency an internal conflict of mind between the duty of suppressing
the African slave trade, and the desire to maintain and fortify the institution of
slavery, little auspicious to the composure of justice or to the impartial exercise
of the judicial faculty. Both the Judges profess a sentimental abhorrence of the
trade. The Circuit Judge discusses at great length the question whether the slave
trade is contrary to the Law of Nations. He admits that the British Court of Admiralty
have of latter years asserted a doctrine of this nature; but after commenting sarcastically
upon the motive of the British Judges and Government, and descanting upon
mental dependence, and interference with the family concerns of others, in which
no nation has a right to volunteer, he quotes a passage from the decision of the
British Court in the case of the Amedee [Acton, 240,] and says, "I must until
better advised assume an opposite language."
"I feel," says he," no inclination to justify or even palliate the
trade. I thank God I have lived to see its death-blow. But it was from religion or
policy, not from national humanity, that the blow was received. On the contrary,
British policy struggled against the effort to abolish it, and all the efforts of
the Quakers, the Methodists and Mr. Wilberforce proved abortive until the horrors
acted in St. Domingo opened the eyes of Government to consequences that it became
political to guard against. From that time, philanthropy like the pent up vapor,
began freely to diffuse itself, and extended its spread even to the British Court
of Admiralty."
"That slavery, (says again the Judge of the Circuit Court,) is a national evil
no one will deny except him [he] who would maintain that national wealth is the supreme
national good. But whatever it be, it was entailed upon us by our ancestors, and
actually provided for in the constitution first received from the Lords Proprietors
under which the southern colonies were planted. During the Royal government it was
fostered as the means of improving the colonies, and affording a lucrative trade
to the mother country, and however revolting to humanity, may be the reflection,
the laws of any country on the subject of the slave trade are nothing more in the
eyes of any other nation than a class of the trade laws of the nation that enacts
them."
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Both the Judges acknowledge the inherent, inextinguishable wickedness of the trade,
and both have an invincible repugnance to consider it contrary to the laws of nations.
The Judge of the District Court admits that the doctrine that Africans taken at sea
must be presumed to be free, until proved to be slaves, may be correct in England,
but cannot entirely recognize it in the State of Georgia. The Judge of the Circuit
Court, repudiates it altogether—-says he must until better advised hold opposite
language—-assails with great bitterness the decision of Sir William Grant in the
case of the Amedee: thanks God that he has lived to see the death blow of the African
slave trade; but allows no credit to Great Britain on the score of humanity for striking
it. No! it was religion or policy. The horrors of the scenes in St.Domingo had alarmed
the British Government for the safety of their West Indian colonies, and so the pent
up vapor of philanthropy was let loose and extended even to the British Courts
of Vice Admiralty. As for slavery, every one knows it an evil, but it was entailed
upon us by our ancestors; it was provided for by the constitution granted by the
Lords Proprietors; it was encouraged from motives of policy by the Royal Government,
and what right has any one to question our practice of it now? It was once lawful—-who
shall say it shall not be lawful forever?
Upon the tone of this judicial argumentation I shall not indulge myself
in commenting; but in comparing the spirit of the reasoning of these two judges with
that of Sir William Grant in the decision which they reject and oppose, how stands
the account of moral principle? The reasons of the British Judge glow with the flame
of human liberty; those of the American Judges are wedged in thrilling regions of
thick ribbed ice. Vituperation of the slave trade in words, with a broad shield of
protection carefully extended over it in deeds. Slavery acknowledged an evil, and
the inveteracy of its abuse urged as an unanswerable argument for its perpetuity:
the best of actions imputed to the worst of motives, and a bluster of mental energy
to shelter a national crime behind a barrier of national independence; these are
the characteristics exhibited by American in collision with British Admiralty Courts.
Or again, examine the respective opinions and decrees in their bearing upon the trade
itself: those of the British Court went directly to its suppression; those of the
American Courts, to its encouragement, security and promotion. The British Court
has at least the consistency of harmonizing practice and profession. The American
Courts profess humanity and practice oppression.
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The decrees of the American Circuit Court are if possible more extraordinary than
its opinions. After deciding that the Negroes taken by the Arraganta in the Antelope,
and from the Portuguese vessels shall be delivered to the Spanish and Portuguese
Vice Consuls, because he must maintain that it is a question altogether inter
alios, whether the Spanish and Portuguese nations had authorized the traffic
in which their vessels were engaged, the Judge adds: "Not so as to the American
vessel. I have a law to direct me as to that, and the slaves taken out of her must
be liberated." The laws had literally directed that all the Negroes whom
John Smith had attempted to smuggle into the United States for sale, should be liberated,
but the Judge had pronounced that this was not its intent and meaning. But now another
difficulty occurs. No competent witness can tell which of the surviving Negroes were
taken from the American vessels, which from the Portuguese vessels, and which from
the Antelope. The individuals belonging to each of the three vessels cannot be identified.
How shall he distribute his doom of freedom and of slavery among the prize goods
and the pirated merchandise of John Smith? With a full conciousness of the gross
and glaring injustice of the decree he says, THE LOT MUST DECIDE! Where did he get
his law for that? He says he has a law to direct him, and he flies in the face of
that law to enslave hundreds and emancipate sixteen human beings on the cast of a
die. Let me do no wrong to his words--hear them.
"I would that it were in my power to do perfect justice in their behalf. BUT
THIS IS NOW IMPOSSIBLE. I can decree freedom to a certain number, but I may decree
that to A, which is the legal right of B. It is impossible to identify the individuals
who were taken from the American vessel, and yet it is not less certain that the
benefit of this decree is their right and theirs alone. Poor would be the
consolation to them to know that because we could not identify them we had given
away their freedom to others.—-Yet shall we refuse to act because not gifted with
the power of divination? We can do the best in our power. The lot must decide their
fate, and the Almighty will direct the hand that acts in the selection. But I cannot
consent to reduce this number from twenty-five to nine, [to seven,] for this depends
upon testimony that was interested to deceive, since in those twenty-five, Smith
could have no hope to sustain his claims though he might succeed as to the residue.
The reduction of the number must therefore be averaged upon a scale with the rest,
and as they consisted of twenty-three men and two boys, the lot must select them
accordingly from the men and boys.
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"Some doubts have been stated as to the national character of the vessel
and as to the Spanish and Portuguese interest in the slaves. On the vessel I entertain
no doubt. She was captured as Spanish, and the evidence is sufficient to prove the
Spanish interest ill her–-and the slaves taken on board of her, must necessarily
follow her fate. But I am induced to think that the evidence preponderates to
prove that there were but ninety-three, and, that number must also be reduced by
the general scale of loss. Concerning the residue, the evidence appears so conclusive,
that reluctant as I feel to keep the case open I cannot adjudge them to the Portuguese
Consul, without further proof."
In examining the claim of Capt. Jackson to salvage, the judge becomes exceedingly
doubtful whether it is a case for salvage at all, and enters a caveat against his
own decree for allowing it. He thinks if a Venezuelan agent had interposed a claim
to the property as prize of war, he should have been still more puzzled how to shape
his decree than he was. He does not appear to be at all aware that if a Venezuelan
agent could have claimed the property as prize of war there could have been no Spanish
claimant to whom it could have been restored. The decree of restoration to Spanish
owners was therefore ipse facto equivalent to a decree for salvage, the quantum of
which alone remained for consideration. His caveat against his allowance for salvage,
was therefore a caveat against his whole decree, and thus far was an approach to
the definition of justice–-Jus suum cuique.
The decrees of the Circuit Court (for there were two) like the state of mind disclosed
by these opinions of the judge, were a chaos of confusion. By the first, delivered
on the 11th of May, 1823, the Decree of the District Court, so far as related to
the vessel, the Antelope, was affirmed, and so far as related to the slaves imported
in her was reversed and annulled.
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The District Court had decreed the restoration of the Antelope to the Spanish
claimants, on the ground that she had not been forfeited to the United States, for
the violation of the laws for the suppression of the slave trade. She had not been
forfeited, though taken by Captain Jackson in the act of smuggling into the United
States for sale near three hundred Africans, and though the law literally declares
all Africans thus imported free, and the vessel in which they are imported forfeited
to the United States. From this forfeiture the Decree of the District Court, exempted
the Antelope, because before the commission of this smuggling piracy she had been
taken by another act of piracy, from certain virtuous Spanish slave traders, whose
property in her, and consequently in the slaves with which she was laden, was too
sacred to be divested either by piratical capture or by the laws of the United States
against the importation of slaves, or against the African slave trade. With this
part of the Decree of the District Court, the judge of the Circuit Court concurs.
The laws of the United States for the suppression of the execrable slave trade, and
against the importation of African slaves are baffled, defeated, prostrated, nullified–-three
hundred wretched victims of that trade, are deprived of the benefit of that just
and generous provision that the very act of importing them shall operate in their
favor as an act of emancipation. They are re-consigned to hopeless and perpetual
slavery, from mere reverence for the property of Spanish slave traders! Well might
such a decision divide the opinions of the judges of the Supreme tribunal when it
came up to them for adjudication. Well might Chief Justice Marshall declare that
upon this point no principle was settled, and well may every friend of human
liberty, and every sincere wisher for the suppression of that detested tragic indignantly
deny that the case of the Antelope can ever be cited as authority for any such principle
of law.
But as the Circuit Court, reversed and annulled every part of the decree of the District
Court for the disposal and distribution of the slaves, so the final decree of the
Supreme Court passed the same sweeping sentence of reversal, upon all the dispositions
of the Circuit Court, not excepting that reliance upon an Almighty hand to direct
that designation by lot, which was to give to one man what was the right of another,
and to emancipate a slave as an equivalent for enslaving a freeman.
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The judge of the Circuit Court at first decreed the manner, in which the sixteen
freemen should be drawn by lot from the whole surviving cargo of the Antelope, as
taken by Captain Jackson. He allowed a certain average portion of the survivors of
93 to the whole number; to be delivered to the Spanish Vice Consul, together with
the proceeds of the vessels, and with suitable deductions for the salvage, forthwith–-and
he reserved for further consideration, and further evidence, till the next term of
the court, the final distribution of the residue of the slaves between the Spanish
and Portuguese Vice Consuls.
On the 16th of July, 1821, the designation was accordingly made by lot of the sixteen
persons drawn from 204, and delivered to the marshal of the United States to abide
the order of the court–-that is, for emancipation. It does not appear that the Spanish
Vice Consul received those which had been provisionally assigned to him. On the 27th
day of December, 1821, the judge of the Circuit Court held, together with Jeremiah
Cuyler, the newly appointed judge of the District Court in the place of William Davis
deceased, a special court, at which the case was argued, and further evidence filed–-and
on the next day, the court "Ordered and decreed, that the residue of the negroes
imported in the General Ramirez [Antelope] be divided between the Spanish and Portuguese
claimants in the ratio of one hundred and sixty-six on behalf of the Spanish claimants,
and one hundred and thirty on behalf of the Portuguese claimants, and that they be
delivered up to the agents of the individuals as soon as their respective powers
of attorney shall be duly authenticated and filed with the clerk of this court; and
they shall respectively comply with the Decretal Order of this court, in paying the
expenses incurred on said negroes in the ratio above stated, and in giving bond and
security as therein directed for transporting them beyond the limits of the United
States to some permitted port, allowing however six months from the date of the bond
instead of three months as in that decretal order aforesaid, and that the proceed
sales of the vessel, after deducting the costs of court, exclusive of marshal's bills
for maintenance, be paid over to the Spanish claimants."
On the 2d of January, 1822, the District Attorney of the United States, appealed
in their behalf to the Supreme Court of the United States from so much of the said
decree, of the said Circuit Court as decreed the said African negroes to the Portuguese
Vice Consul.
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And thus, in February, 1822, the case of the Antelope, and her cargo, came up for
adjudication of the Supreme Court of the United States, the result of which is reported
in the 10th, 11th, and 12th volumes of Wheaton's Reports.
Three long years passed away before the first judgment of the court in the case was
pronounced. Nearly two years before had elapsed from the capture of the Antelope
by Captain Jackson. For little short of the space of five years, nearly three hundred
captured Africans had been kept as prisoners of the United States, and to abide the
decision of their tribunals for the enjoyment of their inalienable right to liberty.
What had they been doing, during this long captivity? They had been maintained at
the cost of the United States, we shall see hereafter to what tune. While the slow,
solemn and majestic march of the law was progressing in the search "for the
legal standard of morality" to fix the destiny of these human victims,
time and chance had disposed of them more mercifully than the decrees
of the District or of the Circuit Court. The marshal had bound most of them out to
labor in the sweat of their brows, at the erection of fortifications, for
the defence of the LIBERTIES of this, our beloved country. The judges who passed
upon the fate of these their fellow men–-the wives–-the children–-the property–-the
neighbors–-the country of those judges were armed in panoply against foreign aggression
by the daily labor of these stolen Africans, whose lives, and liberty American judges
were committing by the legal standard of morality to the cast of a die. During
those five years it may be well conjectured that the condition of those captives
of the Antelope thus employed was less rigorous and afflicted than it was made by
the lottery judgment of the court.
The judgment of the Supreme Court in 1825, reversed this lottery judgment of the
Circuit Court. It reversed the whole allotment of one hundred and thirty to the Portuguese
Vice Consul, and awarded to them the blessing of liberty intended for them by the
law, and yet so harshly denied them by the decrees of the courts below. It reduced
the number to be delivered to the Spanish claimants from a ratio of 166 to 93 to
the whole number, and vigorously exacted proof to the satisfaction of the Circuit
Court of the identity of every individual to be delivered up, as having been of the
number taken by the Arraganta in the Antelope. The allowances of salvage and of gratuity
to Captain Jackson and the crew of the Revenue Cutter were confirmed. One step further
and the case of the Antelope would have conferred unfading glory on the Supreme Court.
One step more, and the heartless sophistry would have been silenced, and the cold
blooded apathy to human suffering would have been stung into sensibility, which delivered
up to Spanish slave traders, a vessel, forfeited by the just severity, and thirty-nine
Africans emancipated by the benignty, of the laws of this Union for the suppression
of the African slave trade.
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That step was not taken; there lacked one voice in a divided court to reverse the
whole of that decree of the Circuit Court of which so many parts were annulled. One
obnoxious principle was left to have its sway in that particular case, because there
wanted a casting vote to reverse it--but Chief Justice Marshall himself, in announcing
the affimation of the sentence on this point of the Circuit Court, guarded against
any and every future attempt to alledge it as an authority by explicitly declaring
that in this judgment of the court NO PRINCIPLE WAS SETTLED.
The opinion delivered by him on this first decision of the case in the Supreme Court,
must be considered as that of the Chief Justice himself. It is in a tone entirely
different from that in which the judges of the lower courts had indulged themselves.
It contains no angry invective, no sneering sarcasm, no direct defiance, on the motives
of the British government, and the solicitude of the British tribunals, for the suppression
of the slave trade. It states with a sincere and painful effort of impartiality the
reasons for and against the principle that the trade is contrary to the laws of nations.
It admits and emphatically declares it contrary to the laws of nature. It cites and
analyzes the general decisions upon the same point in the British Courts of Admiralty,
and examines them with freedom, but without asperity. The Chief Justice says that
as no principle was settled by the affirmance of the decree of the Circuit Court,
the judges had concluded not to assign their respective reasons for their conflicting
opinions; but as to him was assigned the duty of pronouncing the decree of the court,
his argument was necessarily on the side of that division which sustained the decree
of the Circuit Court, and consequently there is no counteracting opinion upon the
records to balance it. But it almost balances itself. The argument with much hesitation
concludes that the African slave trade is not contrary to the Law of Nations-–but
it begins with admitting, also with hesitation, that it is contrary to the
law of nature. He says–-"That it is contrary to the law of nature will
scarcely be denied. That every man has a natural right to the fruits of his
own labor, is generally admitted; and that no other person can rightfully
deprive him of those fruits, and appropriate them against his will seems to
be the necessary result of this admission.
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"Seems, Madam–-Nay it is–-I know not seems."
Surely never was this exclamation more suitable than on this occasion; but the cautious
and wary manner of stating the moral principle, proclaimed in the Declaration of
Independence, as self-evident truth, is because the argument is obliged
to encounter it with matter of fact. To the moral principle the Chief Justice
opposes general usage–-fact against right. "From the earliest times war
has existed, and war confers rights in which all have acquiesced. Among the most
enlightened nations of antiquity, one of these was, that the victor might enslave
the vanquished--
"Slavery, then, has its origin in force; but as the world has agreed that it
is a legitimate result of force, the state of things which is thus produced by general
consent cannot be pronounced unlawful.
"Throughout Christendom, this harsh rule has been exploded, and war is
no longer considered as giving a right to enslave captives. But this triumph of humanity
has not been universal. The parties to the modern law of nations do not propagate
their principles by force; and Africa has not yet adopted them. Throughout the whole
extent of that immense continent, so far as we know its history, it is still the
law of nations that prisoners are slaves. Can those who have themselves renounced
this law, he permitted to participate in its effects, by purchasing the beings who
are its victims ?
"Whatever might be the answer of a moralist to this question, a jurist
must search for its legal solution in those principles of action which are sanctioned
by the usages, the national acts, and the general assent, of that portion of the
world of which he considers himself a part, and to whose law the appeal is made.
If we resort to this standard as the test of international law, the question as has
already been observed, is decided in favor of the legality of the trade. Both Europe
and America embarked in it; and for nearly two centuries, it was carried on without
opposition and without censure."
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With all possible reverence for the memory of Chief Justice Marshall, and with
all due respect for his argument in this case, I must here be permitted to
say, that here begins its fallacy. He admits that throughout all Christendom, the
victors in war have no right to enslave the vanquished. As between Christian nations
therefore, slavery as a legitimate consequence of war is totally abolished. So totally
abolished that slaves captured in war, cannot be held by the captors, as slaves;
but must be emancipated, or exchanged as prisoners of war.
But Africa, says the Chief Justice, still enslaves her captives in war, and for nearly
two centuries, Europe and America purchased African slaves without "opposition
and without censure." This may prove that the African slave-trade was heretofore,
not contrary to the international law of Europe and of Christendom. But how was it,
when the Antelope was in judgment before Christian Admiralty Courts in 1820-01, and
'25? How is it now?
For nearly forty years it has been prohibited by the laws of the United States, as
a crime of enormous magnitude–-and when the Antelope was tried by their judicial
Courts, it was proclaimed piracy, punishable with death–-
It was piracy by the laws of Great Britain.
By the 10th Article of the Treaty of Ghent, concluded on the 24th of December, 1814,
between Great Britain and the United States, the traffic in slaves had been declared
irreconcilable with the principles of humanity and justice, and both parties did
thereby stipulate and contract to use their best endeavors to promote its entire
abolition.
On the 8th of February, 1815, the Ambassadors at the Congress of Vienna, from Austria,
France, Great Britain, Portugal, Prussia, Russia, and Sweden, had issued a Declaration,
"in the face of Europe, that considering the universal abolition of the slave-trade
as a measure worthy of their attention, conformable to the spirit of the times, and
to the generous principles of their august Sovereigns, they are animated with the
sincere desire of concurring in the most prompt and effectual execution of this measure,
by all the means at their disposal, and of acting in the employment of those means
with all the zeal and perseverance which is due to so noble a cause." And again,
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"In communicating this Declaration to the knowledge of Europe, and
of all civilized countries, the said plenipotentiaries hope to prevail on every other
Government, and particularly on those which in abolishing the slave-trade have already
manifested the same sentiments, to give them their support in a cause, the final
triumph of which will be one of the noblest monuments of the age which embraced it,
and which shall have brought it to a glorious termination."
On the 20th of May, 1811, Louis the 18th, on his first restoration, had stipulated
by treaty with Great Britain, to unite all his efforts with hers, at this then approaching
Congress of Vienna, to induce all the Powers of Christendom to decree the abolition
of the slave-trade, so that the said trade should cease, universally, as it should
cease definitely, under any circumstances, on the part of France, within five
years .
Within one year from that time, the Emperor Napoleon, on the 29th of March, 1815,
upon his return from Elba, within the hundred days of his authority, decreed the
immediate and total abolition of the slave-trade on the part of France–which decree
Louis the 18th, upon his second restoration, repeated and confirmed–-and on the 20th
of November, 1815, a Treaty, of which the following was one of the Articles, was
concluded between Great Britain and France.
"The high contracting powers, sincerely desiring to give effect to the measures
on which they deliberated at the Congress of Vienna, relative to the complete and
universal abolition of the slave-trade, and having each in their respective dominions,
prohibited without restriction, their colonies and subjects from talking any part
whatever in this traffic, engage to renew conjointly their efforts, with the view
of securing signal success to those principles, which they proclaimed in the Declaration
of the 8th of February, 181b, and of concerting without loss of time, through their
ministers at the Courts of London and of Paris, the most effectual measures for the
active and definitive abolition of a commerce so odious and so strongly condemned
by the laws of religion and of nature ."
Spain had not been a party to the Declaration of the Allied Powers, at the Congress
of Vienna, of 8th of February, 1815–-but in a treaty with Great Britain, concluded
on the 20th of August, 1814, his Catholic Majesty, concurring in the fullest manner
in the sentiments of his Britannic Majesty with respect to the injustice and inhumanity
of the traffic in slaves, stipulated that he would take into consideration
with the deliberation which the state of his possessions in America demanded, the
means of acting in conformity with those sentiments.
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And on the 23d of September, 1817, by a treaty concluded between the same two
powers, his Catholic Majesty engaged, that the slave-trade should be abolished throughout
the entire dominions of Spain, on the 30th day of May, 1820; and that from and after
that period, it shall not be lawful for any of the subjects of the crown of Spain,
to purchase slaves, or to carry on the slave-trade, on any part of the coast of Africa,
upon any pretext, or in any manner whatever; provided, however, that a term of five
months from the said date of the 30th of May, 1820, should be allowed for
completing the voyages of vessels cleared out lawfully, previously to the said 30th
of May.
A decree of the King of Spain, of December, 1817, conformable to the above treaty-stipulation,
prohibited all Spanish subjects from engaging in the African slave-trade, from and
after the 30th of May, 1820.
The case of the Antelope first came before the District Court of the United States
for adjudication, on the 27th of July, 1820. At that time the African slave-trade
was forbidden to all Spanish subjects throughout the world, by a decree issues nearly
three years before. But the Antelope had been fitted out at the Havana, upon her
slave-trading expedition, and had even been captured by the Arraganta, before the
20th of May, 1820, and consequently before the legal prohibition had taken effect.
The capture of her by the Arraganta had been made, not for breach of laws against
the slave-trade, but as prize of war under a commission from the Oriental Republic.
It was her captor who had incurred her forfeiture, and the liberation of the Africans
taken in her by the violation of the laws of the United States against the slave-trade–-not
by purchasing or shipping the negroes in Africa, but for importing them into the
United States contrary to law.–-To the question of that forfeiture, that of the original
property of the vessel and cargo was altogether foreign. That was res inter alios,
with which the Courts of the United States had nothing to do. The smuggler was a
citizen of the United States. He had proprietary possession of the vessel and of
the negroes, which he was smuggling in to be sold as slaves. It was the identical
offence against which the laws of Congress had provided, and the negroes had by those
laws, and by the violation of them committed by John Smith, acquired a right to freedom,
infinitely more sacred, one would have thought, in an American Court of Justice,
than the property in and to them, of the Spanish slave-traders who had kidnapped
or bought them in Africa, and had not yet consummated their property by bringing
them within the exclusive jurisdiction of Spain.
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All the Courts of the United States did however think proper to go back to the proprietary
right of the Spanish slave-trader; and two of them to sanctify that at the expense
of the freedom of the captives, and of the vital spirit of the laws of the Union
for the suppression of the African slave trade. This sacrifice was made, by the District
and Circuit Courts of the United States, in Georgia. It was never sanctioned by the
Supreme Court of the Union. On this single point, the judgment of the Circuit Court,
was saved from reversal, by a divided Court; but on all the collateral points the
decisions of both the lower Courts were reversed, and on the single point of the
Circuit Court, affirmed: the Chief Justice in affirming it gave explicit and emphatic
warning, that no principle was settled.
In all the three courts, the restoration of the Antelope, and of the Africans
captured by the Arraganta on board of her to the Spanish claimants, was explicitly
decreed on the fact that at the time of her expedition from the Havana, and of her
capture by the Arraganta the prohibition of the slave trade by the King of Spain
had not yet taken effect. All the courts agreed that if the case had occurred after
the abolition of the trade by Spain, the judgment would have been different. That
is, it must and would have been the emancipation and the restoration to their native
country as freemen, of every individual African captured by Captain Jackson in the
Antelope.
With what color of reason then was the case of the Antelope made the corner stone
of the Attorney General's report to the President of the United States, that the
captives of the Amistad should be, by mere Executive warrant, delivered up in a mass,
untold and unidentified, to the Spanish minister. Whatever there was or could be
of authority in the case of the Antelope led directly to the opposite conclusion.
The Supreme Court had toppled down headlong the decree of the Circuit Court for the
distribution of the victims between the Spanish and Portuguese Vice Consuls by lot
. They had scattered to the winds this gambling of human bones, this cross and
pile distribution of justice between liberty and bondage. They had rescued from the
grasp of the overseer all the prisoners taken from the vessels bearing Portuguese
colors; they had exacted proof of the number and identification of the individuals,
to be given up to the Vice Consul of Spain. They had allowed salvage for them to
Captain Jackson to be deducted from their estimated value; and from two hundred and
ninety-six adjudicated by the courts below, to perpetual slavery, they had reduced
the number to an estimate which could not exceed thirty nine. The only principle
to which half the court adhered, and thereby left the decree of the Circuit Court
unreversed was, that the Spanish prohibition of the slave trade had not quickened
into life quite in time to save these thirty-nine unfortunates from the clutches
of their oppressors.
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Apply these principles to the case of the Amistad captives. They had been imported
into the Havana in open and undisguised defiance of the Spanish prohibition of the
slave trade enacted nearly twenty years before; but connived at by the Spanish authorities
in Cuba for gold–-for a doubloon a head. They had been shipped coast-wise, in continuance
and for consummation of the slave trading voyage from Africa. They had been clandestinely
transferred to Ruiz and Montes, who were furnished with printed pretended passports,
false and fraudulent upon their face, and these were the only title to property they
could show. The captives of the Amistad were, when taken by Lieut.Gedney, not even
in the condition of slaves; they were freemen, in possession not only of themselves,
but of the vessel with which they were navigating the common property and jurisdiction
of all nations, the Ocean: in possession of the cargo of the vessel, and of the Spaniards
Ruiz and Montes themselves. Lieut. Gedney seized them as charged with the crimes
of piracy and murder. The captive of the Antelope were taken by Captain Jackson in
the condition of slaves. The courts of the United States were not called on to change
their condition. The courts of the United must have enslaved the captives
of the Amistad before they could restore them to their pretended masters.
The decision of the courts of the United States against the captives Antelope were
all apologetic. They leaned almost entirely upon a decision of Sir William Scott
in the case of the Louis, apparently if not really conflicting with that of, Sir
William Grant in the case of the Amedee. It is apparent that the Admiralty Court
of Great Britain have been divided on the question not less than those of the United
States. Sir William Scott, who, during the war of the French Revolution; had been
the main pillar of belligerent rights and arbitrary searches and visitations of neutral
vessels, after the peace and the agitation of the slavery question among all the
nations of Europe, took a very different lurch, and became the most fervent champion
of the slave trade and of the unqualified exemption of all merchant vessels from
visitation or search by the armed ships of every nation other than their own.
[123] Rerurn to top
In the case of the slave Grace, he decided that a West Indian female slave following
her mistress to England, and emancipated by mere contact with English soil, became
re-enslaved by returning to the West Indian Islands,–-a decision the reverse of which
has been repeatedly decided in one of the principal slave states of this Union. In
the case of the Louis he laid it down in most unqualified terms, which Chief Justice
Marshall in the case of the Antelope repeats with seeming approbation, that the right
of search is confined to a state of war. That it is a right strictly belligerent
in its character, which can never be exercised by a nation at peace, except against
professed pirates, who are the enemies of the human race: a position which, if true,
would at once decide that both the capture of the Antelope by Captain Jackson, and
of the Amsted by Lieut. Gender, were unlawful and unjustifiable. I must pause before
I assent to the doctrine to that extent.
In the same case of the Louis, Sir William Scott travels out of his record, to start
a hypothetical objection to the universality of this exemption of foreign vessels
from visitation and search. "It is pressed as a difficulty," says the Judge,
"what is to be done, if a French ship laden with slaves is brought in
? I answer without hesitation, "Restore the possession which has been unlawfully
divested: rescind the illegal act done by your own subject, and leave the foreigner
to the justice of his own country."
Chief Justice Marshall, in the case of the Antelope, cites also this passage of the
decision of Sir William Scott; but besides that it is a mere obiter dictum upon an
imaginary case not before the court, it is assuredly not law within these United
States. By the act of Congress of 2d of March, 1799, to regulate the collection of
duties, &c., [section 99. U.S. Laws 3, 226,] "the officers of the revenue
cutters are authorized, required and directed to go on board all ships or vessels
which shall arrive within the United States, or within four leagues of the coast
thereof, if bound for the United States, and to search and examine the same,
and every part thereof," for the purposes of revenue.
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By the act of 2d of March, 1807, to prohibit the importation of slaves
into the United States, [section 7, U. S. Laws 2, 96,] it is provided that "if
any ship or vessel shall be found, from and after the first day of January, 1808,
in any river, port, bay, or harbor, or on the high seas , within the jurisdictional
limits of the United States, or hovering on the coast thereof, having on board any
negro, mulatto, or person of color, for the purpose of selling them as slaves, or
with intent to land the same in any port or place within the jurisdiction of the
United States, contrary to the prohibition of this act, every such ship or vessel,
together with her tackle, apparel and furniture, and the goods or effects which shall
be found on board the same, shall be forfeited to the use of the United States, and
may be seized, prosecuted and condemned in any court of the United States having
jurisdiction thereof. And it shall be lawful for the President of the United States,
and he is hereby authorized, should he deem it expedient, to cause any of the armed
vessels of the United States, to be manned and employed to cruise on any part of
the coast of the United States or territories thereof, where he may judge attempts
will be made to violate the provisions of this act, and to instruct and direct the
commanders of armed vessels of the United States, to seize, take, and bring into
any port of the United States all such ships or vessels, and moreover
to seize, take and bring into any port of the United States, all ships or vessels
of the United States wheresoever found on the high seas, contravening the
provisions of this act, to be proceeded against according to law," &c.
Here then are two very extensive limitations by the laws of the United States, upon
the doctrines of Sir William Scott, pronounced in the case of the Louis. These limitations
embrace both the cases of the Antelope and of the Amistad. Yet in the case of the
Antelope, Chief Justice Marshall cites the opinions of Sir William Scott in the case
of the Louis, without any notice whatever of the statute laws of the United States
contradictory to those opinions, and the Attorney General Grundy cites, in the case
at the Amistad, the opinons of Chief Justice Marshall in that of the Antelope, as
authority for a principle which in that very opinion the Chief justice declares is
not settled.
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The truth is, that the opinions of Sir William Scott in the case of the Louis,
have reference only to the slave trade, and the shipment of slaves on the coast of
Africa: the case of the Antelope was for the violation of the laws of the United
States against the importation of slaves into the United States for
sale. In all these cases the right of visitation and search of foreign vessels is
not a merely belligerent right; it is exercised at all times, in peace or
war, and if a French ship laden with slaves were found hovering on the coast of the
United States, or within at least four leagues of their shores, and brought
in, neither would the possession be unlawfully divested, nor would the foreigner
be left to the justice of his own country. There is no act of Parliament against
the importation of slaves into England for sale: the opinions of Sir William Scott
look to no such case, for no such crime could then be committed. They had no application
therefore to the case of the Antelope, and were very erroneously cited as warranting
the surrender of that vessel and her cargo of Africans to the Spanish claimants.
I have said that the decisions of all the courts of the United States in that case
directing that surrender, are apologetic . They admit that the traffic in
slaves is contrary to the law of nature; that it is inhuman, cruel, odious, detestable;
but that it is not contrary to the law of nations, and therefore must be acknowledged.
defended, protected and carried into execution for other nations by the Courts of
the United States, although abhorrent to our laws as to the laws of nature. For this
distinction also, our courts are indebted to Sir William Scott, whose ingenuity in
that same case of the Louis, lays down the following position, cited also approvingly,
by Chief Justice Marshall, in his opinion upon the case of the Antelope.
"A court," says the British Judge, "in the administration of law,
cannot attribute criminality to an act where the law imputes none. It must
look to the legal standard of morality ; and upon a question of this nature,
that standard must be found in the law of nations, as fixed and evidenced by general
and ancient and admitted practice, by treaties, and by the general tenor of the laws
and ordinances, and the formal transactions of civilized states and looking to these
authorities he found a difficulty in maintaining that the transaction was legally
criminal."
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In the Declaration of Independence the laws of Nature are announced and appealed
to as identical with the laws of nature's God, and as the foundation of all obligatory
human laws. But here Sir William Scott proclaims a , differing from, opposed to,
and transcending the standard of nature and of nature's God. This legal standard
of morality is legal standard of morality must, he says, in the administration
of law, be held, by a Court, to supersede the laws of God, and justify, before the
tribunals of man, the moat atrocious of crimes in the eyes of God. With such a principle
it is not surprising that Sir William Scott should have found a difficulty in maintaining
that the African slave trade was legally criminal, nor that one half the Supreme
Court of the United States should have adopted his conclusions. It is consolatory
to the friends of human virtue and of human freedom to know, that this error of the
first concoction, in the moral principle of a British judge, has been, so far as
relates to the African slave trade, laid prostrate by the moral sense of his own
country, which has overcome the difficulty of finding the slave trade criminal, by
the legal and national abolition of slavery itself.
The decree of the Supreme Court, in 1825, "proceeding to give such decree as
the Circuit Court ought to have given, did direct and order that the
restitution to be made to the Spanish claimant should be according to the ratio which
93 (instead of 166) bears to the whole number, comprehending as well those originally
on board the Antelope as those which were put on board that vessel by the captain
of the Arraganta. After making the apportionment act cording to this ratio, and deducting
from the number the rateable loss which must fall on the slaves, to which the Spanish
claimants were originally entitled, the residue of the said 93 were to be delivered
to the Spanish claimant, on the terms mentioned in the decree of the Circuit Court:
and all the remaining Africans were to be delivered to the United States, to be disposed
of according to law."
A mandate issued to the Circuit Court for the district of Georgia for the execution
of this decree. One would suppose that the Supreme Court had sufficiently manifested
its disapprobation of the mode of settling the question of freedom and slavery, by
lot ; and yet was their decree, on this point, not so explicit, but that one
of the two judges of the Circuit Court believed that the selection between the Africans
to be delivered to the Spanish claimants as slaves, and those claimed by the Portuguese
Vice Consul, but whom the Supreme Court had declared free, might still be made by
lot.. The other judge understood better the spirit of the Supreme tribunal; and
hence arose a difference of opinion between the two judges of the Circuit Court,
which sent the case back for a second judgment of the appellate court. The second
judgment of the Supreme Court, in the case of the Antelope, was rendered at their
February term, 1826, and is reported (11 Wheaton, 413) as follows:—" Certificate.—-A
mandate having issued to the Circuit Court for the District of Georgia, to carry
into execution the decree of this Court, pronounced at the February term, 1825, to
deliver certain Africans, in the said decree mentioned, to the Spanish Consul for
Spanish claimants; and the judges of that court having been divided in opinion respecting
the mode of designating the said slaves to be delivered, and separating them from
others to be delivered to the United States, whether the same should be made by
lot, or upon proof on the part of the Spanish claimant, it is ordered to be certified
to the said Circuit Court of Georgia, that, in executing the said mandate, the Africans
to be delivered must be designated by proof made to the satisfaction of the
Court."
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To understand this difference of opinion, with regard to the mode of designating
the Africans to be delivered up to the Spanish claimant and to slavery, it is to
be remembered, that the libel of the Spanish Vice Consul before the District Court
kind claimed 150 of the Africans captured by Captain Jackson, and the libel of the
Portuguese Vice Consul 130. That the degree of the District Court, founded on the
report of the clerk, had awarded 142 of the 212 surviving Africans to the Portuguese,
and 63 to the Spanish Vice Consul; while the subsequent decree of the Circuit Court,
after a delay of one term and the admission of further evidence, had allotted in
the ratio of 166 to the Spanish, and 130 to the Portuguese claimants. That is,
deducting from the Spanish number the 16 persons drawn by lot and liberated, this
decree gave to the Spanish and Portuguese Vice Consuls the ratio of the full number
claimed by each of them in his respective libel. The Supreme Court, reversing this
decree of the Circuit Court, had directed that the ratio of the whole number, to
be delivered up to the Spanish Vice Consul should be reduced from 166 to 93; and
that number was still to be reduced by the rateable loss, which the clerk of the
District Court had reported to be 30. And all the rest, by the decree of the Supreme
Court, were to be liberated. If, then, the Africans to be delivered to the Spanish
Vice Consul had been drawn from the whole number by lot, he would have received
63; but the Supreme Court having, upon this second appeal, decreed teat the Spanish
claimant must identify by proof of having been taller by the Arraganta, in
the Antelope, every individual, to be delivered up to him, explicitly rejected,
for the second time, the lot, as a mode of ascertaining freemen among slaves,
and actually diminished the number of victims delivered up to the Spaniard, from
63 to 39. And this was the number finally delivered up by the decree of the Supreme
Court of the United States of the captives of the Antelope to the Spanish Vice Consul.
But this was not the last decision of the Supreme Court in the case.
[128] Return to top
It was remanded to the Circuit Court, with directions to make a final disposition
of the controversy between the parties pursuant to the principles of the decrees
of 1825 and 1826. And now came up the question, to use a vulgar but significant phrase,
Who should pay the piper?
"The Circuit Court, [says the Report, 12 Wheaton, 547,] in order to enable it
to decree finally in the case, directed the register to take and report an account
of the costs, and also of the expenses of keeping, maintaining, &c. of the Africans,
by the marshal, and which account (amounting to upwards of thirty~six thousand dollars)
was accordingly reported. Exceptions were filed to the report by both the Portuguese
and Spanish claimants. The Circuit Court also caused proofs to be taken, for the
purpose of identifying individually the Africans to be delivered to the Spanish claimants,
as directed by the decree of 1826.
Thus circumstanced, the case came on for final hearing before the Circuit Court.
The Court decreed that the Portuguese claimant should not be made liable for costs,
or any proportion of the expenses and charges of the marshal, for maintaining, &c.
the Africans: and being of opinion that 39 of the Africans were sufficiently identified,
by proof, as being the property of the Spanish claimants, directed the 39 Africans,
so identified, to be delivered to the Spanish claimants, upon their paying a proportion
of the costs and expenses reported by the registrar, in the ratio of the number of
Africans delivered to the whole number. And the Circuit Court was further of opinion,
that the residue of the Africans not directed to be delivered to the Spanish claimants
should be delivered to the United States, to be disposed of according to law: but
on the question, whether, they shall be delivered absolutely, or on condition of
payment of the balance of the expenses which will remain unsatisfied, after charging
the Africans adjudged to the Spanish claimants in their due ratio, the judges of
the Circuit Court being divided in opinion, ordered this difference of opinion to
be "certified to this Court."
[129] Return to top
The United States District Attorney appealed from so much of this final order
of the Circuit Court as related to the apportionment among the several parties of
the costs and expenses in the preservation, maintenance, and custody of the said
Africans, and of the costs and expenses of the various proceedings had in relation
to the said Africans; and also from so much of said order as decreed 39 of the said
Africans to the Spanish claimants.
So extraordinary, so anti-judicial is every thing upon the records in this case of
the Antelope, that the Supreme Court actually did not know what was the question
upon which the judges of the Circuit Court were opposed in opinion-—they supposed
it was, whether the Africans not directed to be delivered to the Spanish claimants
should be delivered by the marshal to the United States, absolutely and unconditionally,
to be disposed of according to law, that is, to be liberated and sent home; or whether
it should be imposed on the United States, as a condition precedent to their delivery,
that the United States should pay to the marshal his claim for expenses, at the rate
of sixteen cents a day for each African, (for several years) in the ratio of the
number to be delivered to the United States.
This, it will be perceived, was still the question of freedom or slavery to the poor
Africans. If the decree had been, that the payment of these expenses, amounting to
about 350 dollars a head, was a condition precedent to their delivery to the United
States, in the event of nonpayment, the marshal had a lien upon the Africans, and
they would have been his slaves .
The mode of proof admitted by the Circuit Court to identify the individuals to
be doomed to slavery and delivery to the Spanish claimants cannot commend itself
to the sense of justice, of humanity, or of freedom. Fifty of them, employed upon
the fortifications, had been selected by the marshal, and recognised by a man
named Grondona, who kind been second officer on board the Antelope when the slaves
were purchased and shipped in Africa. Grondona had since disappeared, and was said
to be dead; but there were witnesses in Court who had been present at the examination
when Grondona recognized thirty-four of the Negroes and they him, by speaking together,
and by signs, though the witnesses knew nothing of the language in which they spoke.
Other witnesses testified to his having recognized five more. The Africans had no
notice that their fate, as freemen or slaves, was to depend on this recognition.
They had no one to defend them, and protest for them, against the manner of disposing
of their freedom. The examination was in open court, but the only evidence furnished
was testimony to individuals whom Grondona had recognized and who had recognized
him. Hearsay evidence of one whose language the witnesses did not understand!
[130] Return to top
Yet the Supreme Court thought this evidence sufficient, under the very peculiar
circumstances of this case, reasonably to satisfy the mind of the identity
of thirty-nine of the Africans, as belonging to the Spanish claimants, and affirmed
the decree of the Circuit Court for their delivery up to the Spanish Vice Consul.
Under the very peculiar circumstances of the case, in order to enslave 39
human beings, otherwise entitled to freedom, evidence was deemed sufficient, which,
upon an ordinary question of property, of five dollars value, between man and man,
would have been rejected as inadmissible.
The very peculiar circumstances of the case are quite as strongly marked,
in the opinion of the judge of the Circuit Court, in December, 1826, as they had
been in his preceding opinion, delivered in 1821. In apologizing for the enormous
amount of the marshal's bill, allowed by the court, which he is aware must expose
the court, and the administration of justice in the country, to certain imputations,
he says, "What could the court do] The United States regard the subjects of
this suit as men and not things . 'They could not be sold, and the
money lodged in the registry. They were then prisoners, and necessarily to be kept
and treated as such." Had he judge allowed his reason to advance one step further,
he would have seen, that precisely because they were men and not things, precisely
because they could not be sold, precisely because they must be kept and treated,
if at all, as prisoners,they could not be restored entire as merchandise, nor therefore,
come within the purview of the 9th article of our treaty with Spain.
[131] Return to top
"The next question," says the judge of the Circuit Court, "is,
by whom these costs are to be paid? That the maintenance of the Africans was a legal
charge on the United States, in the first instance, is perfectly clear. By the act
of February 28,1799, in forcing them into the hands of the marshal, the United
States became bound for their subsistence."
The judge of the Circuit Court further affirms, that the Supreme Court, by its decree
of 1825, and explanatory decree of 1826, established seven principles; the first
of which, in his enumeration, is-- " That the law of nations recognized both
slavery and the slave-trade ."
But Chief Justice Marshall, in delivering the opinion and pronouncing the decree
of the Supreme Court in 1825, declared that, on the question of the restitution to
the Spanish claimant, which depended entirely upon the recognition of the slave-trade
by the law of nations, "the Court is divided on it, and, consequently,
NO PRINCIPLE IS SETTLED."
The judge of the Circuit Court was, therefore, in manifest error when he said that
the Supreme Court had, by the decrees of 1825 and 1826, established the principle,
that the law of nations recognized both slavery and the slavetrade. And this mistake
discloses the source of that great perplexity, which troubles him, to find a consistency
between the principle which he erroneously supposes them to have established, and
their decree for carrying it into execution. It is not our business to inquire into
the reasons of that Court. "We must give effect to it according to what we understand
to be its meaning. And, upon collating and combining their decree of 1825 with the
explanatory decree of 1826, the two will be found to amount to this—that the rights
of the Spaniards shall be recognized; but, in reducing that right to possession,
they shall be held to have established a claim originally to ninety-three, which
number shall be reduced by the average of deaths; and to the number so ascertained,
they shall be held to produce proof of individual identity. But all the cargo, with
the exception of those to be thus identified, shall be delivered over to the United
States. This will be doing what that Court certainly intended to do: it will make
a final disposition of a most troublesome charge. It is our duty (says he) to find
out the meaning of the decree of the Supreme Court, and to obey it. And here it is
evident, that although their reasoning, and the principles recognized, would seem
to go fully up to the maintenance of the Spanish right, yet the decree, in its details,
sustains those rights under very important limits and modifications."
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And such is the history of the case of the Antelope in the judicial tribunals
of the United States. That vessel, commanded by a citizen of the United States, was
taken in the very act of smuggling 258 Africans into the United States for sale as
slaves, and by the plain, unquestionable letter of the 4th section of an act of Congress
of 20th April, 1818, was forfeited; while, by an act in addition to the acts prohibiting
the slave-trade, of 3d March, 1819, every African thus imported in the Antelope was
made free, --subject only to safe keeping, support, and removal beyond the limits
of the United States, by direction of their President.
After seven years of litigation in the Courts of the United States, and, of course,
of captivity to nearly all of these Africans who survived the operation; after decrees
of the District Court, reversed by the Circuit Court, nod three successive annual
reversals by the Supreme Court of the decrees of the Circuit Court; what was the
result of this most troublesome charge ?
The vessel was restored to certain Spanish slave-traders in the island of Cuba. Of
the Africans, about fifty had perished by the benignity of their treatment in this
land of liberty, during its suspended animation as to them; sixteen, drawn by
lot from the whole number, (by the merciful dispensation of the Circuit Court,
under the arbitrary enlargement of the tender mercies of the District Judge, which
had limited the number to seven,)--sixteen had drawn the prize of liberty,
to which the whole number were entitled by the letter of the law; and, of the remainder,
THIRTY-NINE, upon evidence inadmissible upon the most trifling question of property
in any court of justice, were, under the very peculiar circumstances of the case,
surrendered! delivered up to the Spanish vice-consul--AS SLAVES! To the rest was
at last extended the benefit of the laws which had foreordained their emancipation.
They were delivered over to safe keeping, support, and transportation, as freemen,
beyond the limits of the United States, by the Chief Magistrate of the Union.
[133] Return to top
And now, by what possible process of reasoning can any decision of the Supreme
Court of the United States in the case of the Antelope, be adduced as authorizing
the President of the United States to seize and deliver up to the order of the Spanish
minister the captives of the Amistad? Even the judge of the District Court in Georgia,
who would have enslaved all the unfortunate. of the Antelope but seven, distinctly
admitted, that, if they had been bought in Africa after the prohibition of
the trade by Spain he would have liberated them all.
In delivering the opinion of the Supreme Court, on their first decree in the case
of the Antelope, Chief Justice Marshall, after reviewing the decisions in the British
Courts of Admiralty, says, "The principle common to these cases is, that the
legality of the capture of a vessel engaged in the slave-trade depends on the law
of the country to which the vessel belongs. If that law gives its sanction to the
trade, restitution will be decreed: if that law prohibits it, the vessel and cargo
will be condemned as good prize.
It was by the application of this principle, to the fact, that, at the time
when the Antelope was taken by the Arraganta, the slave-trade, in which the Antelope
was engaged, had not yet been made unlawful by Spain, that the Supreme Court affirmed
so much of the decree of the Circuit Court as directed restitution to the Spanish
claimant of the Africans found on board the Antelope when captured by the Arraganta.
But by the same identical principle, applied to the case of the Amistad, if,
when captured by Lieutenant Gedney, she and her cargo had been in possession of the
Spaniards, and the Africans in the condition of slaves, the vessel would have been
condemned, and the slaves liberated, by the laws of the United States; because she
was engaged in the slave-trade in violation of the laws of Spain. She was in possession
of the Africans, self-emancipated, and not in the condition of slaves. That,
surely, could not legalize the trade in which she had been engaged. By the principle
asserted in the opinion of the Supreme Court, declared by Chief Justice Marshall,
it would have saved the vessel, at once, from condemnation and from restitution,
and would have relieved the Court from the necessity of restoring to the Africans
their freedom. Thus the opinion of the Supreme Court, as declared by the Chief Justice,
in the case of the Antelope, was a fact, an authority in point, against the surrender
of the Amistad, and in favor of the liberation of the Africans in her, even if they
had been, when taken, in the condition of slaves. How monstrous, then, is the claim
upon the Courts of the United States to re-inslave them, as thralls to the Spaniards,
Ruiz and Montes I or to transport them beyond the seas, at the demand of the Minister
of Spain!
[134] Return to top
I said, when I began this plea, that my final reliance for success in this case
was on this Court as a court of JUSTICE; and in the confidence this fact inspired
that, in the administration of justice, in a case of no less importance than the
liberty and the life of a large number of persons, this Court would not decide but
on a due consideration of all the rights, both natural and social, of every one
of these individuals. I have endeavored to show that they are entitled to their liberty
from this Court. l have avoided, purposely avoided, and this Court will do justice
to the motive for which I have avoided, a recurrence to those first principles of
liberty which might well have been invoked in the argument of this cause. I have
shown that Ruiz and Montes, the only parties in interest here, for whose sole benefit
this suit is carried on by the Government, were acting at the time in a way that
is forbidden by the laws of Great Britain, of Spain, and of the United States, and
that the mere signature of the Governor General of Cuba ought not to prevail over
the ample evidence in the case that these negroes were free and had a right to assert
their liberty. I have shown that the papers in question are absolutely null and insufficient
as passports for persons, and still more invalid to convey or prove a title to property.
The review of the case of the Antelope, and my argument in behalf of the captives
of the Amistad, is closed.
May it please your Honors: On the 7th of February, 1804, now more than thirty-seven
years past, my name was entered, and yet stands recorded, on both the rolls, as one
of the Attorneys and Counsellors of this Court. Five years later, in February and
March, 1809, I appeared for the last time before this Court, in defence of the cause
of justice, and of important rights, in which many of my fellow-citizens had property
to a large amount at stake. Very shortly afterwards, I was called to the discharge
of other duties—first in distant lands, and in later years, within our own country,
but in different departments of her Government.
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Little did I imagine that I should ever again be required to claim the right of appearing in the capacity of an officer of this Court; yet such has been the dictate of my destiny—and I appear again to plead the cause of justice, and now of liberty and life, in behalf of many of my fellow men, before that same Court, which in a former age I had addressed in support of rights of property I stand again, I trust for the last time, before the same Court--"hic caestus, artemque repono." I stand before the same Court, but not before the same judges--nor aided by the same associates-—nor resisted by the same opponents. As I cast my eyes along those seats of honor and of public trust, now occupied by you, they seek in vain for one of those honored and honorable persons whose indulgence listened then to my voice. Marshall--Cushing-- Chase--Washington--Johnson--Livingston--Todd--Where are they? Where is that eloquent statesman and learned lawyer who was my associate counsel in the management of that cause, Robert Goodloe Harper? Where is that brilliant luminary, so long the pride of Maryland and of the American Bar, then my opposing counsel, Luther Martin? Where is the excellent clerk of that day, whose name has been inscribed on the shores of Africa, as a monument of his abhorrence of the African slave-trade, Elias B. Caldwell? Where is the marshal--where are the criers of the Court? Alas ! where is one of the very judges of the Court, arbiters of life and death, before whom I commenced this anxious argument, even now prematurely closed? Where are they all? Gone! Gone! All gone!--Gone from the services which, in their day and generation, they faithfully rendered to their country. From the excellent characters which they sustained in life, so far as I have had the means of knowing, I humbly hope, and fondly trust, that they have gone to receive the rewards of blessedness on high. In taking, then, my final leave of this Bar, and of this Honorable Court, I can only ejaculate a fervent petition to Heaven, that every member of it may go to his final account with as little of earthly frailty to answer for as those illustrious deed, and that you may, every one, after the close of a long and virtuous career in this world, be received at the portals of the next with the approving sentence--"Well done, good and faithful servant; enter thou into the joy of thy Lord."
End Part 5.
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