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"Opinion of the Attorney General." U.S. Congress. House. Africans Taken in the Amistad. 26th Congress., 1st sess., 1840.H. Doc. 185.
Opinion of the Attorney General.
ATTORNEY GENERAL'S OFFICE, 1839.
[57]
SIR: I have the honor to acknowledge the receipt of yours of the 24th of September,
in which, by direction of the President, you refer to this office the letter of the
Spanish minister of the 6th of September, addressed to you; also, the letter of Seth
P. Staples and Theodore Sedgwick, jr., Esqs., who have been engaged as counsel for
the negroes taken on board the schooner Amistad, addressed to the President of the
United States; and asking my opinion upon the different legal questions presented
by these papers.
I have given to the subject all the consideration which its importance demands; and
now present to you, and through you to the President, the result of my reflections
upon the whole subject.
The following is the statement of facts contained in your communication: "The
Amistad is a Spanish vessel; was regularly cleared from Havana, a Spanish port in
Cuba, to Guanaja, in the neighborhood of Puerto Principe, another Spanish port; that
her papers were regular; that the cargo consisted of merchandise and slaves, and
was duly manifested as belonging to Don Jose Ruiz and Don Pedro Montes; that the
negroes, after being at sea a few days, rose upon the white persons on board; that
the captain, his slave, and two seamen, were killed, and the vessel taken possession
of by the negroes; that two white Spaniards, after being wounded, were compelled
to assist in navigating the vessel, the negroes intending to carry her to the coast
of Africa; that the Spaniards contrived by altering the course of steering at night,
to keep her on the coast of the United States; that, on seeing land off New York,
they came to the coast, and some of the negroes landed to procure water and provisions;
that, being on the point of leaving the coast, the Amistad was visited by a boat
from Captain Gedney's vessel, and that one of the Spaniards, claiming protection
from the officer commanding the boat, the vessel and cargo, and all the persons on
board, were sent into New London for examination, and such proceedings as the law
of nations and of the United States warranted and required."
[58]
In the intercourse and transactions between nations, it has been found indispensable
that due faith and credit should be given by each to the official acts of the public
functionaries of others. Hence the sentences of prize courts under the laws of nations,
or admiralty, and exchequer or other revenue courts, under the municipal law, are
considered as conclusive as to the proprietary interest in, and title to, the thing
in question; nor can the same be examined into in the judicial tribunals of another
country. Nor is this confined to judicial proceedings. The acts of other officers
of a foreign nation, in the discharge of their ordinary duties, are entitled to the
like respect. And the principle seems to be universally admitted, that, whenever
power or jurisdiction is delegated to any public officer or tribunal, and its exercise
is confided to his or their discretion, the acts done in the exercise of that discretion,
and within the authority conferred, are binding as to the subject-matter; and this
is true, whether the officer or tribunal be legislative, executive, judicial, or
special.--Wheaton's Elements of International Law, page 121; 6th Peters, page 729.
Were this otherwise, all confidence and comity would cease to exist among nations;
and that code of international law, which now contributes so much to the peace, prosperity,
and harmony of the world, would no longer regulate and control the conduct of nations.
Besides, in this case, were the Government of the United States to permit itself
to go behind the papers of the schooner Amistad, it would place itself in the embarrassing
condition of judging upon the Spanish laws, their force, effect, and their application
to the case under consideration.
This embarrassment and inconvenience ought not to be incurred. Nor is it believed
a foreign nation would look with composure upon such a proceeding, where the interests
of its own subjects or citizens were deeply concerned. In addition to this, the United
States would necessarily place itself in the position of judging and deciding upon
the meaning and effect of a treaty between Spain and Great Britain, to which the
United States is not a party. It is true, by the treaty between Great Britain and
Spain, the slave trade is prohibited to the subjects of each; but the parties to
this treaty or agreement are the proper judges of any infraction of it, and they
have created special tribunals to decide questions arising under the treaty; nor
does it belong to any other nation to adjudicate upon it, or to enforce it. As, then,
this vessel cleared out from one Spanish port to another Spanish port, with papers
regularly authenticated by the proper officers at Havana, evidencing that these negroes
were slaves, and that the destination of the vessel was to another Spanish port,
I cannot see any legal principle upon which the Government of the United States would
be authorized to go into an investigation for the purpose of ascertaining whether
the facts stated in those papers by the Spanish officers are true or not. Suppose,
however, that the evidence contained in these papers should not be entitled to all
the effect I have given it; would that change or alter the course which should be
pursued by the Government? I think it would not; and a reference to the principles
of international law, as approved and sanctioned by our judicial tribunals, will
clearly show it. In the case of the Antelope, (10 Wheaton, page 66,) this subject
was fully examined, and the opinion of the Supreme Court of the United States establishes
the following points:
[59]
1. That, however unjust and unnatural the slave trade may be, it is not contrary
to the law of nations.
2. That, having been sanctioned by the usage and consent of almost all civilized
nations, it could not be pronounced illegal, except so far as each nation may have
made it so by its own acts or laws; and these could only operate upon itself, its
own subjects or citizens; and, of course, the trade would remain lawful to those
whose Government had not forbidden it.
3. That the right of bringing in and adjudicating upon the case of a vessel charged
with being engaged in the slave trade, even where the vessel belongs to a nation
which has prohibited the trade, cannot exist. The courts of no country execute the
penal laws of another, and the course of the American Government on the subject of
visitation and search would decide any case in which that right had been exercised
by an American cruiser, on the vessel of a foreign nation not violating our municipal
laws, against the captors.
It follows, that a foreign vessel engaged in the African slave trade, captured on
the high seas in time of peace, by an American cruiser, and brought in for adjudication,
would be restored.
The opinions here expressed go far beyond the present case; they embrace cases where
the negroes never have been within the territorial limits of the nation of which
the claimant is a citizen. In this case, the negroes were in the island of Cuba,
a portion of the dominions of Spain; they were there recognised and treated as property
by the Spanish authorities of the island. And after this, in their transmission from
the port of Havana to another Spanish port, the occurrence took place which has given
rise to this investigation. This vessel was not engaged in the slave trade; she was
employed lawfully in removing these negroes, as slaves, from one part of the Spanish
dominions to another, precisely in the same way that slaves are removed, by sea,
from one slave State to another in our own country. I consider the facts as stated,
so far as this Government is concerned, as establishing a right of ownership to the
negroes in question, in the persons in whose behalf the minister of Spain has made
a demand upon the Government of the United States.
Under the statement of facts, another inquiry which presents itself, is, What power
does the Government of the United States possess, or what jurisdiction has it for
the purpose of trial and punishment, over the persons of these men of color, who
are charged with having risen upon the captain and crew, and murdered the captain
and part of the crew, and took the vessel under their own control?
If these acts, according to the principles of international law, or under the acts
of the Congress of the United States, constitute or amount to piracy, then jurisdiction
to try and punish belongs to the United States.
[60]
The question arises, Do these acts constitute piracy?
"Piracy is defined to be the offence of depredating on the seas, without being
authorized by any sovereign State, or with commissions from different sovereigns
at war with each other." Pirates being the common enemies of all mankind, and
all nations having an equal interest in their apprehension and punishment, they may
be lawfully captured on the high seas by the armed vessels of any particular State,
and brought within its territorial jurisdiction for trial by its tribunals."--Wheaton's
Elements of International Law, page 113.
Chancellor Kent, in his Commentaries, (vol. 1, page 183,) says, "Piracy is robbery,
or a forcible depredation, on the high seas, without lawful authority, and done animo
furandi, and in the spirit and intention of universal hostility. It is the same
offence at sea with robbery on land; and all the writers on the law of nations, and
on the maritime law of Europe, agree in this definition of piracy. Pirates have been
regarded by all civilized nations as the enemies of the human race, and the most
atrocious violators of the universal law of society. They are everywhere pursued
and punished with death; and the severity with which the law has animadverted upon
this crime arises from its enormity and danger, the cruelty that accompanies it,
the necessity of checking it, the difflculty of detection, and the facility with
which robberies may be committed upon pacific traders in the solitude of the ocean.
Every nation has a right to attack and exterminate them, without any declaration
of war; for though pirates may form a loose and temporary association among themselves,
and re-establish, in some degree, those laws of justice which they have violated
with the rest of the world, yet they are not considered as a national body, or entitled
to the laws of war, as one of the community of nations. They acquire no rights by
conquest, and the law of nations and the municipal law of every country authorize
the true owner to reclaim his property taken by pirates, wherever it can be found;
and they do not recognise any title to be derived from an act of piracy. The principle,
that a piratis et latronious capta dominium non mutant is the received
opinion of ancient civilians, and modern writers on general jurisprudence; and the
same doctrine was maintained in the English courts of common law prior to the great
modern improvements made in the science of the law of nations."
In the case of the United States against Smith, (5 Wheaton, page 153,) the Supreme
Court of the United States clearly recognise the foregoing description and definitions
of piracy, and state, that the defendant in that case, and his associates, were,
at the time of committing the offence, freebooters upon the sea, not under the acknowledged
authority, or deriving protection from, the flag or commission of any Government;
and, therefore, the defendant was subject to trial within the United States.
From this language it may clearly be inferred that, had the vessel been sailing under
the authority and flag of any particular Government, the defendant would not have
been subject to trial in any court of the United States; but that his case would
have been exclusively within the jurisdiction of the tribunals of that State under
whose commission, authority, or flag he was navigating his vessel. And in the case
of the United States vs. Palmer, (3 Wheaton, page 610,) the Supreme Court
of the United States expressly decided that the crime of robbery committed by a person
on the high seas, on board of a ship belonging exclusively to subjects of a foreign
State, on persons in a vessel belonging exclusively to subjects of a foreign State,
was not piracy under the act of Congress approved on the 30th of April, 1790, and
was not punishable in the courts of the United States. In the case now before me,
the vessel is a Spanish vessel, belonging exclusively to Spaniards, navigated by
Spaniards, and sailing under Spanish papers and flag, from one Spanish port to another.
It therefore follows, unquestionably, that any offence committed on board is cognizable
before the Spanish tribunals, and not elsewhere.
[61]
These two points being disposed of--1st. That the Government of the United States
is to consider these negroes as the property of the individuals in whose behalf the
Spanish minister has put up a claim; 2d. That the United States cannot proceed against
them criminally;--the only remaining inquiry is, what is to be done with the vessel
and cargo? the negroes being a part of the latter.
A case like the present is not embraced by any of the legal provisions contained
in the different acts of Congress, so as to justify this Government, in any of its
departments, to act upon it for the purpose of transporting these negroes to Africa.
In the construction of the different acts of Congress in relation to the "slave
trade," it is to be observed that the statutes operate only where our municipal
jurisdiction might be applied, consistently with the general theory of international
law, to the persons of our citizens or to foreigners on board of American vessels.--1
Kent's Commentaries, page 182; 3 Wheaton, page 610.
And, it may be added, that those acts would operate, of course, upon all persons
who might violate them within the limits of the United States. But the claimants
of these negroes have violated none of our laws. They are within the limits of the
United States, to be sure, with their own consent; but that consent resulted from,
and was produced by, circumstances so imperious and overruling in their nature, as
to have left them no choice. They have not come within our territories with the view
or intention of violating the laws of the United States; nor had they, before their
arrival within the waters of the United States, been guilty of an infraction of them.
They have not introduced these negroes into the United States for the purpose of
sale, or holding them in servitude within the United States; so far from any illegal
intention or design to violate the laws of the United States being established upon
the claimants, the case clearly shows that not only no violation of our laws has
been committed, but no such violation was in contemplation. It therefore appears
to me that this subject must be disposed of upon principles of international law
and the existing treaties between Spain and the United States.
It would scarcely be doubted that, under the law of nations, property rescued from
pirates or robbers by a vessel belonging to a friendly Power, and brought into a
port of that friendly Power, would be restored to the rightful owners; and this,
without any treaty stipulation.
The 9th article of the treaty between Spain and the United States, dated 27th October,
1795, (which has been continued in force by a subsequent treaty,) is as follows:
" All ships and merchandise of what nature soever, which shall be rescued out
of the hands of any pirates or robbers on the high seas, shall be brought into some
port of either State; and shall be delivered to the custody of the officers of that
port, in order to be taken care of, and restored entire to the true proprietor, as
soon as due and sufficient proof shall be made concerning the property thereof."
[62]
This makes the case much stronger in favor of the Spanish claimants. There can be
no difference, in reason, whether the vessel be captured on the high seas, or within
our own waters or ports; because, if captured on the high seas, they are to be brought
into port and delivered into the custody of the appropriate public officers; and
if captured after having already come into a port, they should be treated in like
manner. It therefore seems to me that this case is clearly within the spirit and
meaning of the 9th article, and that the vessel and cargo should be restored entire,
so far as practicable.
My opinion further is, that the proper mode of executing this article of the treaty,
in the present case, would be for the President of the United States to issue his
order, directed to the marshal in whose custody the vessel and cargo are, to deliver
the same to such persons as may be designated by the Spanish minister to receive
them. The reasons which operate in favor of a delivery to the order of the Spanish
minister are--
1. The owners of the vessel and cargo are not all in this country, and, of course,
a delivery cannot be made to them.
2. This has become a subject of discussion between the two Governments, and, in such
a case, the restoration should be made to that agent of the Government who is authorized
to make, and through whom the demand is made.
3. These negroes are charged with an infraction of the Spanish laws; therefore, it
is proper that they should be surrendered to the public functionaries of that Government,
that if the laws of Spain have been violated, they may not escape punishment.
4. These negroes deny that they are slaves; if they should be delivered to the claimants,
no opportunity may be afforded for the assertion of their right to freedom. For these
reasons, it seems to me that a delivery to the Spanish minister is the only safe
course for this Government to pursue.
I have the honor to be, with great respect, your humble servant.
Hon. JOHN FORSYTH,
Secretary of State.
