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"Amistad Issues," New York Journal of Commerce, Jan. 16, 1841.
From the Evening Post
THE AMISTAD CASE
The question of the disposal of the captives of the Amistad is again the subject
of discussion in the journals. We regret to see a disposition not to allow it to
be decided upon its own merits.
A morbid fear is shown in certain quarters, lest by restoring to liberty a set of
men notoriously kidnapped and forcibly carried into bondage, we may, in some distant
manner or other graze the question of slavery in our country. The people of this
part of the country will not endure such a view of the question. If the people of
the South have their jealousies, so have the people of the North.
We give to-day a well reasoned and logical examination examination of the case from
a correspondent of great ability, to which we invite the attentive perusal of our
readers.
For the Evening Post
THE AMISTAD CASE
The Globe of the 7th instant contains a long review of the proceedings in the
Amistad case, endeavoring to establish the Decree of the District Court to be erroneous,
and very strenuously insisting that the negroes must be surrounded to the Spanish
Government. This article is said, in the editorial which precedes it, to be from
"one of the first intellects of the south," and published as it is on the
eve of the final argument of this cause, and in the leading organ of the government,
it certainly deserves the attention of all those who take an interest either in the
destiny of the Africans of the Amistad, in the great points of law which enter into
the case, or in that still greater r question of slavery which is now, by indirection,
sought to be forced into the discussion.
A reply to the article before me, necessarily involves, in a greater or less degree,
the discussion of all these interests. Let us do it as briefly as the subject admits.
The argument in question purports to be a "cool and dispassionate" examination
of the question. It is to be regretted that the execution much outstrips the intention.
The paper abounds with epithets abusive of those who happen to have the misfortune
of differing from its distinguished author; it does not even spare the Judge who
pronounced the decision, and it winds up with a labored and vehement declamation
on behalf of the institution of slavery. Such is not the temper in which this or
any other question of similar magnitude should be viewed. Least of all, is such the
temper in which men of the law, whose education, if worth anything, is chiefly of
value in that it chastens and disciplines the intellect, should approach the examination
of legal questions. This frame of mind is scarcely excusable in ignorance; it is
intolerable in those who pretend to learning and reflection.
It is very evident that the question of the Amistad ought not to turn, and does not
turn, on the feeling entertained towards either the negroes or the abolitionist--be
it pity, sympathy, applause or execration--still less does it hinge on the abstract
merits of the institution of slavery. The only question is---is the decree right?
Does it conform to those principles of law which hold our entire civil fabric together---to
those great rules of justice which form the international code? If it do not, it
must fall, were a thousand human beings to be surrendered to a Cuban slaveholder.
If it do---it must not be periled by either northern or southern extravagance---by
either northern or southern fanaticism.
What are the questions in the case? They are simply these : First---As a matter
of fact, are the Negroes of the Amistad slaves, and the property of Ruiz and Montez?
Secondly---Can that matter be called in question in our courts?
Thirdly---Should they be surrendered on the demand of the Spanish government
under the treaty with Spain of 1795!
These questions are not by any means kept distinct in the paper before me. Indeed
they are so much confounded, that it is not easy always to perceive the connection
of the reasoning; but the drift of the argument may be thus stated:--
First--We cannot call in question the title of Ruiz and Montez to these negroes--because
the validity of the pass under which they are shipped cannot be examined.
Secondly--We are bound to surrender them to the government of Spain, under
the treaty of 1795, in pursuance of the 9th article, which I have quoted below.
Now as to each of these points, but in inverse order.
What was the order of events? These negroes were brought into our ports, charged
with piracy and murder. From that accusation they were discharged by Judge Thompson,
who directed the Grand Jury at Hartford, that the Courts of the United States had
no cognizance of crimes commuted in a foreign jurisdiction, and that a foreign vessel
on the high seas is under the jurisdiction of that power to which her masters belong.
this is familiar law, and no question has ever been made that that charge was correct.
The cases are numerous. United States vs. Holmes.5 Wheat. 412; United States vs.Furlong.
5 Wheat. 124; United States vs. Palmer. 3 Wheat.610; Kessler's case. 1 Baldwin, 29.
What was the next step? The Spanish Minister demanded them--but on what grounds?
Truth to say it is difficult to answer the question, for the different functionaries
of that government have used very different language on the subject. Mr. Calderon
in his first letter of the 6th September, insists on the treaty, while M. de Argus
says in so many words in his letter of the 26th November, "Be it recollected
that the Legation of Spain does not demand the delivery of SLAVES but
ASSASSINS." But take it either way--give them the benefit of either claim--let
Spain hang on either horn.
First, if they are demanded as criminals. To this the answer is conclusive.
The federal government has never claimed, nor exercised the right of delivering fugitives
from the justice of Foreign Powers, except under express treaty stipulations, such
as were contained in the treaty of 1794 with Great Britain, under which Robbins was
given up. No such convention exists with Spain. It was on this ground, that in 1825,
the President refused to surrender (indecipherable)
Thompson says in the late case of Holmes vs. Jennison 14, Peters 583,
" such has been the settled and uniform course of the Executive Government of
the United States upon this subject, since the expiration of our treaty with England."
The surrender of these negroes as criminals under the law of nations, was therefore
entirely out of the question, and so accordingly the President decided. Let us see
how the case stands under the treaty with Spain. The 9th article runs thus:
"Article 9. All ships and merchandise, of what nature so ever, 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."
I quote the 9th article alone, because it does not derive any additional strength
from the other clauses of the instrument, and because if this provision is insufficient
to warrant the demand, it assuredly must fail.
Property of Spanish is to be surrendered to the proprietor on due and sufficient
proof.
Has the Casus Foederis arisen? What is the property? Who is the proprietor?
What is the proof? How are these questions to be decided? --One would think that
these points deserve some consideration, but they have received exceedingly little
in the paper before us. Let us try to make the matter clear.
The ground taken y Messrs. Staples and Sedgewick, in their letter to the President,
written on the 13th September, of last year, when the vessel was first wrought in,
was, that all questions of property arising under the treaty, were to be decided,
not by the Federal Executive, but by the ordinary course of legislation.
They say: "We submit that this is the true construction of the treaty; that
it is not a mere matter of executive discretion; but that before the government enforces
the demand of the Spanish claimant, that demand must be substantiated in a court
of justice.--It appears to us manifest that the treaty could never have meant to
submit conflicting rights of property to mere official discretion, but that it was
intended to subject them to the same tribunals which in all other cases, guard and
maintain our civil rights. Reference to the 7th article, in our opinion, will confirm
this position. * * * We submit further: that it never could be intended that the
executive of the the Union should be harassed by the investigation of claims of this
nature, and yet assuredly, if the construction, &c. contended for be correct,
such must be the result; for, if he is to issue the order upon due and sufficient
proof, the proof must be sufficient to his mind.
"We further submit, that in regard to the executive there are no rules of
evidence nor course of proceeding established; and that in all such cases, unless
the claimant be directed to the courts of justice, the conduct of the affair must,
of necessity be uncertain, vague, and not such as is calculated to inspire confidence
in the public or the parties"
a multitude of arguments might be adduced in support of these positions; suppose
contending owners present themselves--one a Spanish, the other an American citizen--is
the President to adjudicate on their conflicting rights?
What means has he of arriving at the right? How odious such a tribunal; how foreign
to every notion of justice. All that the treaty meant is, evidently, that parties
claiming property should have the same rights as American citizens would, and be
at liberty to establish in the same way.
In a case where there was no dispute as to the title, the federal functionaries might
act; but the moment the right is contested, that moment it becomes indispensable
to refer the matter to the Courts. No other course of proceeding could produce the
semblance of justice.
There is nothing peculiar in the treaty with Spain. The treaty with Prussia of 1785,
contains a provision of a precisely similar nature. Elliott's code, vol.1, page 344,
art.17, and the treaty of 1794 with England, contains an analogous clause which I
have seen no where noticed, but which is (t)oo important to be overlooked. By art.
20th of that treaty, it is stipulated "that all ships of pirates, &c. shall
be brought in and that the vessels, goods and merchandise shall be seized and delivered
to the owners, ( proper evidence being first given in the Court of Admiralty for
proving the property.)" This shows what was the intention of the treaty
makers in regard to British claims, and it is not likely they would give any other
mode of redress to Spanish subjects. They intended in both cases to refer them to
the Courts, but in the treaty with Britain they stipulated the Court because our
judicial system is similar to theirs; but in negotiating with Spain they did not
specify the tribunal because our organization is totally different. They never dreamed
then of this monstrous claim in behalf of the President--transforming him into a
judge to decide without any rules of evidence--without any jury--without appeal---on
conflicting claims of private right.
At any rate this is the view the President took of the matter: with his customary
sagacity he referred the matter to the legal tribunals. The only question, therefore
is, shall the treaty be enforced by the Supreme Court.
Thus far, we have got Messrs. Ruiz and Montes lay claim to some forty negroes. Property
is to be delivered to Spanish proprietors on due proof of property. But this claim
is to be passed upon by the courts. What rules are there to be laid down?--Can any
other be imagined than those which govern all questions of civil right submitted
to the same tribunals?
On what then do these claims rely ? What is their evidence of title ?What is the
document by which they seek to drag forty human beings into slavery --probably to
death ? Nothing under Heaven but a pass, or a clearance or a bill of lading, countersigned
by the Spanish Government, for fifty "negroes ladinos," fifty acclimated
negroes--negroes who have been a considerable time from Africa and in slavery; it
might almost be translated "naturalized." In the government translation
of the Amistad documents, the word "ladino" is translated "sound ;"
but there is no doubt whatever that the translation is wholly incorrect, and any
Spanish scholar knows it. Messrs. Ruiz and Montes then proved their claim on a pass
or clearance for fifty acclimated, or naturalized negroes, and this alone. Their
claim too is the claim of the Spanish minister,
{ indecipherable}
Secondly, they are not ladinos . They are neither acclimated nor naturalized.
They have been no time whatever in the Spanish dominions: they are"Bozals
" --they are just from Africa, "new,""rough" and "untamed."
The paper before me says: "In this case the negroes in question were all particularly
named in the permit and clearance given to Ruiz and Montes who held them as property
in Havana, and the vessel and her port of destination all described and properly
authenticated by the legal officers in Cuba. These facts are not questioned."
In regard to the negroes this is an entire mistake. The facts are peremptorily denied.
But, thirdly -- it is proved beyond dispute that they are not slaves according to
Spanish law--that they were imported in violation of an express edict--that Messes.
Ruiz and Montes have no legal Spanish claim to them whatever, that they are in point
of fact abettors of a piratical trade.
This is established beyond dispute--not even the most vehement of the advocates of
the treaty has ever pretended to insist that Ruiz and Montes have in point of fact
a food title, that they have the shadow of a right to call these men their slaves.
What then is the reply to this overwhelming evidence? Why, forsooth, that their right
cannot be called in question. Masters claiming property in a court of civil jurisdiction
are not obliged to prove title--for this proof virtually amounts to none whatever.
Nothing more is required than their say so. Law, rules of evidence, everything
must yield to their ipse dixit. Can this be so? suppose instead of the claim being
as here set up to slaves, and contested by the slaves themselves, suppose it was
made to inanimate property and by different owners--suppose Messrs. Ruiz and Montes,
instead of claiming different portions of the same subject matter, set up adverse
claims--would then this rule be insisted on. again, suppose the claim was agitated
in a southern State, and an American citizen laid claim to the property, must the
court then abdicate its jurisdiction and refuse to require the proof called for in
every other case? What becomes of the "due and sufficient proof "
required by the treaty.
But it is said that this pass is the all adequate proof required, and that
this permit or clearance cannot be rebutted nor its averments disproved. I have already
said that the connection between the negroes and this paper is exceedingly loose,
indeed can scarcely be traced. But assume it--suppose these negroes to be the persons
intended in the document and then the position, in the language of the argument to
which I am replying is this:
Courtesy and the intercourse of all civilized nations, require that the forms and
papers of all authorized officers in one country shall be respected and received
in the tribunals of another. Without this, there must be perpetual confusion and
just ground of complaint between nations; and instead of harmony and mutual respect,
the reverse must take place.
All "authorized officers." This is tolerably sweeping--a Custom
House Collector, a Consul--a military man, are all "authorized officers,"
but was it ever pretended that the certificates of these functionaries to a fact
not judicially drawn before them are obligatory upon foreign tribunals as proof that
any thing short of the judgment of a regularly constituted court could bind another
tribunal in a discharge of its functions. I Ruiz had shipped a horse at Havana, he
would have received a pass of the same validity and authenticity as that which he
now has. If he had stolen the horse before he had shipped him, he would equally have
revived the pass. It is nothing but a clearance,granted as a matter of course to
the person vested with the possession of the property. In either case if the true
owner had claimed the horse, Mr. Ruiz, or his counsel of the Globe for him, would
have replied, "oh, no!" True I stole the beast--true it is your beast--but
here is my pass and "courtesy, and the intercourse of civilized nations require
that it shall be received and respected in every tribunal." And this is law!
:et us look into this a little more closely, for when men of learning and talent
treat our system of justice thus summarily, it behooves others who are not quite
so indifferent to the "ancient ways," to look well to their footing.
And first it may be affirmed without fear of contradiction that the rule [as] laid
down by the writer of the article before me is [t]otally unsupported by authority
or reason. It never [d]id exist and never can exist till all notions of our pre[s]ent
rules of evidence have disappeared. What the[n] are the rules which do subsist on
this subject? It [is] very true that a judgment in court of competent ju[r]isdiction
is conclusive as to the facts there called in [qu]estion--but upon whom--why of course
on the parts to the suit. A judgment in rem in the Exchequer [o]r the
decree of a Court of Admiralty is said to be b[in]ding on the whole world--but with
these exceptions [t]he final judgment of a court is binding only on the p[art]ies
before it.
This principle has [be]en extended to certain officers who have a quasi jud[ic]ial
character, as a sheriff who returns a writ--a cler[k] who furnishes a copy of a rule--a
commissioner tak[in]g a deposition; his certificate will be admitted as proof that
the deposition was so taken. "But note says Mr. Justice Cowen,. these latter
cases of officiale positions and the like should be distinguished from [th]e acts
of other officers having no connection with t[he] Court. In these cases the officer
is regarded as [a] quasi officer of court.--But commissions and acts [of] other officers
not acting in the course of a cause []ending nor officially empowered to furnish
proof a[] matters in pais and must be established according [to] the general rule
of evidence. Phillips by Cowen a[] Hill, vol. 2. p 628. In regard to these also,
it is to [b]e remembered, that it is not absolute final evidence which cannot be
rebutted. Beyond this the courts [ha]ve never gone. "The general rule is,"
says Mr. Phi[]ps that our law never allows a certificate of a mere []tter of fact
to [be] admitted as evidence, vol 1, p332, so in Waldron, Coombe, 3 Taunt. 162, the
certificate of a Britis[h] Vice Consul, quite as strong a case as the present,
[]s refused as evidence of the facts it purports to co[]in. The reason of the rule
is as clear as the rule [i]tself. The document is no evidence.--There is [no]
power of cross examination, it does not propose to [ha]ve adjudicated any conflicting
rights.--It is a mere [c]ertificate granted as a matter of
indecipherable text
of the captives of the A[mistad. If this treaty had been made with Russia, whic[h]
to use the dainty language of the libel of the Am[is]tad case, "tolerates"
white slavery; and if a cargo [ ] whites had been brought here under the same [cir]cumstances,
claimed by a Russian nobleman und[er] a custom-house pass or clearance, we should
[h]ave heard nothing of the "courtesy and internati[on]al comity" which
forbids a man proving himself to [be] a freeman. One universal cry would have burst
f[ ] that sense of justice implanted in the human l[ ] st, long before laws were
heard of. "Away with [yo]ur clearance--begone with your pass. You come i[ ]
a court of justice--you are governed by its genera[ ] [ ]les--prove your title--we
deny it--we show that [ ] can have none--shall you drag a man away to slav[ery] and
death on less proof than you would venture [ ] go to trial within an action for a
horse or a dog?"
But the present claim[ ] are blacks and the case is reversed. All justice, a[ ] [or]dinary
rules are to be set aside for fear, forsooth, [ ] the abolitionists should have a
triumph--lest so[ ] slave -holder on the shores of the Mobile or the M[issi]ssippi
should tremble for the safety of his propert[y.]
It has been more than [ ]e urged on behalf of the amistad negroes, that [ ] courts
cannot maintain a foreign title to slave pro[perty]; that even if Ruiz and Montes
had a good clai[m] [und]er the Spanish law, our courts could not enforc[e] [ ] Their
positions has been taken by the English [ ]s. Such was the basis of the decision
in Forbes [ ]ochrane, 2, B. and Cres. 448, where the plaintiff, [th ]e owner in Florida,
sued the defendant, comman[der] of the British forces on that station during the
w[ar] [w]ith this country, for harboring his slaves. "Sla[very]" says Best,
"is a local law." The instant slav[s] [are] beyond the limits where slavery
is recognized [by the] local law, they have broken their chains; t[hey] [h]ave escaped
from their prison and are free.
Happy the country wh[ ] [ ]is language can be held--where this rule can be [ ]own.
But in my humble judgment, it is not and [ ] be law in this country. England tolerates
slave[ ] [ ]where--she treats it as malum per se. But we [indecipherable]
in a position to hold that language. The nor[thern] and the southern, the free and
the bond inter[ ] indissolubly married. We must abide by [ ]ct--as a nation we recognize
slavery--our c[ ]t to enforce the rights which it confer. And t[ ] not refuse to
hold valid a title merely because f[ ] which they would uphold if domestic.
This is what the case [ ] Antelope (10 Wheat.66,) decides, and it is [ ] it decides.
That where a foreign title to [ ] properly made out, our courts will recognize [
] [ ]e are satisfied with this decision--we do n[ ] [ ] to unsettle it; nor is it
necessary to the prese[ ] [ ]. All the counsel of the Amistad negroes ask [ ] [ ]t
persons who are required to offer "due and [ ]nt " proof of title
be held to that proof; that a[ ] [ ]ading or a clearance shall not be considered
[ ] case any more than prima facia proof at the [ ] [ ]nd that the parties disputing
the right set up[ ] [ ]ng their liberty, be admitted to give evidence [ ] fact. If
this is allowed they are safe.
In the case before us t[he] [certific]ate is of the lowest possible character--a
dir[ty piece] of paper--not even closed with the dignity or [ ] of a seal, and no
doubt signed by the Gover[ner] [b]lank, to be used as occasion required. The [ ]ght
of the paper is enough to drive to the win[ ] [a]rgument as to its conclusiveness.
Such is the case. It is [i]mportant to the negroes, but vastly more s[ ] character
of the country--to our National [ ] that it be rightly decided, and above all [ ]
considered and passed on with a single eye [to the i]nterests of justice.
It is not a case for dogm[a] [it] is not a case to impute 'affected benevole[nce]
[ ] [ ]hining morality,"'blind fanaticism," 'disgr[ ] [ ]serviency,"
to all those who happen to differ [with the] advocates of the Spanish claim. No talent[
] [ ]ning can justify this arrogant and abusive la[ ] a][nd whoever may be the author
of the argum[ent in qu]estion, he would have better served his purp[ose,] [ha]ve
created greater confidence both in his [argu]ment and in the merits of his cause,
by a ca[se] [m]ore dignified, a more just consideration of [ ] and of the motives
of those opposed to [ .]
Of a piece with this [ ] [l]anguage is the labored and declamatory [ ] [o]f slavery
with which the argument closes.
"The truth is, that prope[rty] has existed in all ages of the world, and [fro]m
the natural state of man, which is war [ ]d created the first family
and gave them [ ] the earth as an inheritance, one of the n[ ] [ ]edience to the
impulses and passions that [ ] [im]planted in the human heart, rose and slew[ ].
This universal nature of man is alone m[ ] [c]ivilization and law. War, conquest,
and for[ ] [pro]duced slavery, and it is state necessity and [ ] law of sel[f] preservation
that will ever
p[ ] [an]d defend it.
"The contest is between [ ] domestic slavery and political slavery, or
[ ] of the productive labor of a nation, in the [ ] [ ] [cap]italists..
'The former system is [ ] force, and in all attributes; and [ ]dentity of interests,
as far as comforts an[d] are concerned, between capitalists and [ ] The latter is
sustained by fraud and force and is full of hypocrisy, cunning, and hear[ ] produces
an antagonist interest between [ ] [a]nd laborers, and is the fruitful source of
[ ] blood."
It is very far from my purp[ ] [ ]r or to attempt to answer, this per[ ] [ ]sive
or inconclusive, it has nothing to [ ] case before us: nothing with its law--no [
] equity.
But it cannot be considered [ ][ ]nd liberal to endeavor to draw into this ca[ ]
[ ]e merits of the question of slavery, and [p]rejudice the case by appeals to the
viole[ ] which pervades the south on this topic [ ] fuel for the flame which already
burns to fanaticism.
There is a southern as well fanaticism. If there is the extravagance there - is assuredly
also the extravagance [ ] The abolitionists, the ultras of the north [ ]ul, the ultras
of the south seem to be [ ]lation. On this subject they have no con[ ] [ ]slves--no
respect for others. The sa[ ] [ ]ms to embrace all--lawyers, schola[rs], [ ] [ ]e
moment this topic is approached. [ ]e temper, this abdication of reason [c]onnected
with the question, that the [ ] south are every day urging on the s[ ] [ ]eat ques-
indecipherable text
But at the same time, they cannot shut their eyes to the fact that the majority of
the bench of the Supreme Court are from the slave holding states, nor to the still
more alarming fact that the whole Southern voice is raised in one united appeal to
the passions, the prejudices, the fears, the interests of these magistrates as slaveholder.
"The interests of the South are involved." The interests of the South !
In the name of Heaven, can no decision ever be made in the cause of liberty without
periling Southern interests? Can no slave ever be discharged, no master ever defeated,
no imprisoned freeman ever liberated, without awakening the whole fury of the South
?
It is this which is intolerable to the North. They can yield their assent to any
decision justly made--they could even submit, though with heartfelt, profound regret,
to a sentence which should abandon the negroes to Spanish mercy, were they satisfied
that the decree emanated from men desirous only of doing right--of impartially deciding
the conflicting claims. But once let the belief be engendered (and nothing so fit
to create it as the article to which I am replying) that the decree is the result
of passion Ed appeals to the private feelings of the judges, and who shall measure
the evil to result from it.
Let nothing which I have said be construed to imply any suspicion or distrust of
the distinguished individuals who compose our highest judicial tribunal. That court
has to a wonderful extent, throughout the whole period of our history, commanded
the national respect and confidence. But when we see the ablest intellects of the
South entering into the arena of newspaper controversy to bias, warp and forestall
the decision of the tribunal, it is impossible altogether to silence our apprehension.
Leave that bench to its own great learning and uncontrolled sense of justice and
no man would whisper a syllable of fear.
The North are content with the compact--they are willing to let the disposition of
the future be decided by the course of events. But one thing is inevitable--if the
South are not satisfied with this, if they are bent upon arming like a single man
to defend and promote the interests of this detestable institution, the North will
assuredly unite to check it--to hedge it in--to overthrow it. God avert a conflict,
which when it comes, is fraught with the fate of the empire. But if ever evil temper,
arrogance and blindness should force it on, who shall doubt the result ? One of the
wisest of the American statesmen has already predicted its termination. "The
Almighty has no attribute that in such a contest can take part with the master."
VETO.
