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"The Amistad Africans,"New York Journal of Commerce , 1 Jan. 1841.
For the Journal of Commerce
The Amistad Africans.
The interest excited in the case of the Africans, of the schooner Amistad, appears to increase as the final trial of the case, before the Supreme Court of the United States, approaches. Able pens have been engaged in the discussion of the several points which are involved in the case, and it seems that the several questions, which are to be decided by the highest judicial tribunal in the country, are to be ably argued through the columns of the public prints, if not before the Court. A simple view of the subject, will, as I understand it, convince any man, who has a mind to convince, that there is no law, upon the facts admitted and proved, which will authorise the Court to send them back to Havana; and as the case is to be decided according to law, that the decree of the District Court of Connecticut, which ordered these Africans to be delivered to the President to be transported to Africa,in pursuance of the law of Congress, passed March 3d, 1819, entitled "An act in addition to the acts prohibiting the Slave trade," must be affirmed, or that they must be set free. I have nothing to do with the question, whether the decree of the District Court, upon the facts proved, and admitted on the record, can be sustained, upon the principles of the law. The material and all important question is, is there any law (treaty or other) which upon the facts proved, and admitted by the record, will authorise the Supreme Court to order them to be sent back to Havana. I claim there is not. To determine this question, it is necessary to ascertain what the law is, by which it is claimed the Supreme Court of the United States can order these negroes back to Havana, to be delivered up to the Spanish Authorities or to Ruiz and Montez;--what the material facts, proved, or admitted by the record are;--and what the claim of Ruiz and Montez, or the Spanish Minister,is?
The law, by which it is claimed that these Africans should by the decree of the Supreme Court, be sent back to Havana, is contained in the Treaty which was entered into between the United States and Spain, on the 20th day of October, A.D. 1795, and is embodied in the ninth article of the Treaty, which ninth article is as follows:-- "All ships and merchandize, 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 proprietors, as soon as due and sufficient proof shall be made concerning the property thereof." This is the law; and without this law, no one could for a moment, claim that any Court of the United States, governed by law, should send these Africans back to Havana,--and by this law, before they can be sent back, or in the language of the treaty "restored entire to the true proprietor," it must be made to appear that there is a "true proprietor," and that that "true proprietor"has made "due and sufficient proof" that he is such "true proprietor," and that he has a "property" in, and title to, such Africans. If there is no "true proprietor" who can make "due and sufficient proof concerning the PROPERTY," they cannot be delivered up. Before then a decree of the Supreme Court can be passed, ordering these Africans back to Havana, two points must be established, and established by "clear and sufficient proof." 1st. That these Africans are "property," and secondly, that Ruiz and Montez, are the "true proprietors;" for no one pretends or claims to be a "true proprietor," but Ruiz and Montez; and if they are not "true proprietors," there is no "true proprietor." The question is not, whether they, or any of them, can by any power known to the Constitution and laws of the United States, be delivered up to the authorities of Spain, as criminals --as "assassins," according to the demand made upon the United States by the Spanish Minister ; for the Spanish Minister does not demand them as "property," but as "Africans."That question is not involved in the case now before the Supreme Court. In that case, they are not claimed to be delivered up as criminals, or "assassins," by any one. The only claims made to these Africans, are the claims made by Ruiz and Montez, and by the United States. The claims of Ruiz and Montez are, that these Africans should be delivered up to them, as their "property," after "clear and sufficient proof" made. The claim of the United States, filed by the District Attorney is, that the Spanish Minister had claimed of our government, that these Africans were the "property of Spanish subjects," (Ruiz and Montez,) and had demanded of our government, that that "property" be "returned to the true proprietors;" (in point of fact, the Spanish Minister never made any such demand), and that "on its being made legally to appear, that the claim "aforesaid of the Spanish Minister is well founded and is conformable to the treaty, that the Court make such order for their disposal, as may best enable the United States in all respects, to comply with their treaty stipulations, and preserve the public faith inviolate." The "treaty stipulation" is, only for the delivering up of property. The claims of Ruiz, of Montez, and of the Unites States, are only for the delivering up of "property," upon "clear and sufficient proof" made. In no part of the record is there a claim, that they should be delivered up as criminals. Whenever the question is submitted to a proper Court, whether these Africans can, by any power, to be exercised in pursuance of the Constitution and laws of the United States, be delivered up to the Spanish authorities as criminals or "assassins," it will be time enough to discuss it. "Sufficient for the day is the evil thereof."
We have thus seen what the law is; let us now see what the facts are;--facts which are uncontradicted, and about which there is no dispute. It is a fact, that in the month of December A.D. 1817, the King of Spain passed a decree on the subject of the slave trade, which is binding upon all Spanish subjects, the first article of which decree is as follows: "Art. I. From this day forward, I prohibit all my subjects, both in the Peninsula, and in America, from going to buy negroes on the coasts of Africa, north of the line. The negroes who may be bought on the river coasts, SHALL BE DECLARED FREE in the first port of my dominions, at which the ship in which they are transported shall arrive. The ship itself, together with the remainder of its cargo, shall be confiscated to the royal treasury, and the purchaser, the captain, the master and pilot, shall be IRREVOCABLY CONDEMNED TO TEN YEARS TRANSPORTATION TO THE PHILIPPINES." The third article of the decree is as follows: "Art. S. From the 30th day of May 1820, I equally prohibit all my subjects, as well in the Peninsula as in America, from going to purchase negroes along those parts of the coast of Africa which are to the south of the line, under the same penalties imposed in the first article of this decree." The sixth article of the decree is as follows: "Art. VI. Foreign vessels which may import negroes into any part of my dominions, shall be subjected to the regulations prescribed, in this decree; and in case of contravening them, shall be subjected to the penalties contained in it." That this decree was passed by the King of Spain; that it is a legal decree, binding upon all Spanish subjects (including Ruiz and Montez;) that it is now in force; that it has been in full force, ever since the 20th day of May, A.D. 1820, there is no dispute. The evidence on this subject is ample and abundant. Indeed there is no necessity for proof; for the record now before the Supreme Court admits it; and when a record of a Court admits a fact there is no necessity to prove that fact. It is a fact also, that the Africans of the Amistad, were sometime early in the year 1839, unlawfully taken from the coast of Africa, where they were free; stolen, "kidnapped," by a Spanish or piratical slaver, and carried into Havana, where they arrived about the latter part of May or beginning of June, in the year 1839; that they were all placed in a barracoon, or slave market in Havana; that about the latter part of June, in the year 1839, they were taken possession of by Ruiz and Montez, to be transported to another part of the Island of Cuba; that they were recently imported Africans, brought from the coast of Africa, contrary to the decree of the King of Spain; that that decree declared them, upon their arrival at Havana, to be free, and declared also, that if Ruiz and Master, or the Pilot of the vessel, which brought them from the coast of Africa, that they each should be "IRREVOCABLY CONDEMNED TO TEN YEARS TRANSPORTATION TO THE PHILIPPINES." There is no dispute about this. The evidence is abundant. Indeed the record now before the Supreme Court admits it; and there is no disputing a record. In that record it will appear that the District Attorney, who claimed on the part of the United States that these Africans, upon "clear and sufficient proof" being made, should be delivered up to the "true proprietors," admitted that they were illegally imported from the coast of Africa, contrary to the above written decree of the King of Spain, and that they never were de jure slaves of Ruiz and Montez, or of any one else; which admission was and is made a part of the record of the case. And as the United States, who have appealed, and no one but the United States has appealed, have made this admission on record, they cannot now dispute it; they cannot contradict the record; and if they were permitted to attempt to contradict the record, the evidence is abundant to prove the truth of what the District Attorney has admitted, and what is made a part of the record of the case.
With these facts appearing on the record of the case now pending before the Supreme Court at Washington, it is a matter of no consequence, so far as the determination of the case is concerned, what the other facts in the case are. Whether or not Ruiz and Montez supposed they were legally entitled to these Africans--whether or not the pass which issued by the officer in Havana was a legal pass or not? whether or not it was a bonna fide pass , or one procured by fraud? The fact, that at the time of the importation of the negroes, there was a law of Spain in force, prohibiting their importation, and the fact , that these Africans were imported into Havana from the coast of Africa, contrary to this law of Spain, which law declared them free , is sufficient to deliver this case from all pretence of claim, or pretence of right, to send them back to Havana. They could not be the "property" of any "true proprietor," because upon the facts admitted in the record , the law of Spain declares them to be free; that they are not the subject of "property;" and that as they are not, no "due and legal proof" can be made in regard to them, in pursuance of the treaty. You might as well attempt to make "due and legal proof" that one of the judges of the Supreme Court of the United States, was the "property" of another judge, when the constitution and laws of the United States declare that no white man, much less a judge, can be the subject of property. The law of Spain, which law is admitted by the record , declares that no black man , taken from the coast of Africa since the year 1820, and carried into any Spanish port, can be the subject of "property." It is admitted by the record , that these Africans of the Amistad were, contrary to this law , brought from Africa, and carried into Havana,--and that the Spanish law declares them free. Why then talk of their being the "property" of Ruiz and Montez, when the record itself shows, that they could not be the "property" of any one? Why talk about their being delivered up to Ruiz and Montez upon "due and sufficient proof," when the record before the Supreme Court shows, that there is "due and [text missing] that they cannot be the [text missing] Montez and Ruiz never [text missing] in Havana, as their [text missing]? Why talk of making [text missing] Spanish Law, as admitted by [text missing] them free ; the "property" of no [text missing] law if executed, after "due and [text missing] instead of making them slaves, might [text missing] Ruiz and Montez slaves, if to be "IRREVOCABLE CONDEMNED TO TEN YEARS TRANSPORTATION TO THE PHILIPPINES," will make slaves .
Upon this Spanish law, above cited, the authority of which law is admitted by the record, now before the Supreme Court; and upon the facts , above stated, which facts are also admitted by the same record . It would seem, there could be no doubt about this case, and that no judge, and no man, who is willing to be governed by the law, and by the evidence, could harbor the thought for a moment of sending these Africans back to Havana to be delivered to Ruiz and Montez as their "true proprietors." There is no "due and sufficient proof," that they are their "property,"--and upon the facts, admitted by the record, there can be none. It has been shown that the only claims, which were ever filed in the District Court, to these Africans, as "property," were the claims of Ruiz and Montez, and the claim of the United States claiming in pursuance of a demand made by the Spanish Minister upon the Government. The record of the Supreme Court will show, that Ruiz and Montez, have both abandoned their claims to these Africans; that their claims are "merged " in the claim, made by the Spanish Minister, in the name of the United States. We have seen, that although the United States claim, that these Africans should be delivered up to the "true proprietors, " as "property," in pursuance of a demand made by the Spanish Minister, upon the Government, that in point of fact, the Spanish Minister has not demanded that they should be delivered up to the "true proprietors" as "property":--that the only demand which the Spanish Minister has made upon the Government is, that they should be delivered up to the authorities of Spain as "Assassins ." If then the claims of Ruiz and Montez are now "merged" as is found by the record, in the claim of the Spanish Minister, their only claim now is, that the Africans shall be delivered up as "assassins," and not as "property." But it is claimed by those, who take the ground, that these Africans, should be sent back to Havana, to be delivered up to certain Spaniards, as the "true proprietors," that although it appears by the record , that these Africans are not, and never were slaves; that although no Spaniard, ever was, or ever could be a "true proprietor" of them;--that although those Spaniards in Havana, who claim to be the "true proprietors" might if the Spanish law was executed, be "true proprietors" of a right "to the Philippines," by being "irrevocably condemned to a ten years transportation," yet as when they were in Havana, Ruiz and Montez claimed them as slaves and as certain Spanish officers recognized them as their slaves; and as the Spanish pass ( although it was or might have been, obtained by fraud,) also recognized them as slaves, they must be recognized by our Courts, as the "property" of the Spaniards, who held them, or pretended to hold them, as slaves, in Havana, they must be delivered up: that as certain Spanish officers have recognized them as slaves, our Courts must consider them as slaves, and must consider Ruiz and Montez as the "true proprietors." The distinguished author of the "brief review of some of the points of the case of the Amistad, and the principles involved therein," in his essay says, "if the negroes were not slaves under the Spanish law, that was an issue to be made up there, and decided by their Courts, and not ours." The doctrine is, our Courts must consider them as slaves, because they were claimed , and held , if you please, as slaves, in Havana. And again the same author asserts, that "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." And again "wherever jurisdiction is delegated to a public officer, and confined only to his discretion, all acts within that discretion, are to be recognized as binding: and this is true, whether the act be judicial, legislative or executive." That is, a pass granted by a Spanish Custom House officer describing a negro as a slave and as belonging to Ruiz or Montez, or any other Spanish subject, because that Custom House officer has a "discretion" to issue such a pass or not, must be recognized as "binding" and conclusive evidence that such negro is such slave;--that "courtesy" and "the forms and papers of all authorized officers" shall be convincing and conclusive proof, that a man is a slave, if such "forms and papers" describe him to be such, although the fact be otherwise, and the record shows that it is otherwise.--In short, that a Custom House pass , issued by an officer, having discretion" to issue such pass, if it be a part of "the forms and papers of an authentic officer," by "courtesy" is to make a man a slave to a Spanish subject, that Spanish "forms and papers" are everything, and the fact and substance nothing--and that whether a negro, claimed to be a slave to a Spanish subject of Havana, is in point of fact, a slave under the Spanish law, is "an issue to be made up there, and decided by their courts, and not ours." This is the grave opinion of "one of the first intellects of the South."
Let us test this opinion of "one of the first intellects of the South" by a few supposed cases. We here see that the Spanish law, has declared that all negroes, brought from the coast of Africa, since May 1820, upon their arrival at any Spanish port, shall be free; and that the Africans of the Amistad, were, contrary to this law, brought from Africa in the year 1839, and carried to Havana. This law being proved and admitted, and this fact also being proved and admitted, it follows, that they are not, and cannot by any Spanish law, be slaves. But notwithstanding this, Ruiz and Montez claimed them as slaves, and a Havana [text missing] discretion and according to "the forms and papers of an authorized officer," must when the question comes up, before the Courts of the United States, be "respected and received" as conclusive evidence that they are slaves--and that the issue whether they are slaves or not, "is an issue to be made up there (in Havana) and decided by their court, and not ours." A claim , and a Spanish pass, make the slave. That is the doctrine of "are of the first intellects of the South." Suppose that the Spanish law, instead of declaring that all negroes brought from Africa since May 1820, should be free, had declared that all black females after the month of May 1820, should be free; and suppose that the negroes of the Amistad, had all been females, and that the Spanish pass had described them as males, "sound male negroes," and that Ruiz and Montez claimed them as their male slaves--and that they should be delivered up to them by the Supreme Court of the United States, as their male slaves. The fact is, that they are females, and not males, and this fact is admitted by the record, and if it was not so admitted, the proof is conclusive. The Spanish law is also admitted by the record, and by that law, no female can be held in slavery. The Spanish pass issued by an officer having "discretion," with all the necessary "forms," describes them (fully) as males, and Ruiz and Montez, claim them as males. They can only be delivered up, by the treaty, to the Spanish claimants as slaves; and no female can be a slave; and the question whether they are slaves or not, is to be determined by the question, whether they are males or females? Now what would "one of the first intellects of the South" say to this? Why he would gravely say, as he has said, "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" as conclusive evidence of the truth of what is stated in the "forms and papers of such authorized officers;" our courts then, must consider these females as males. These "forms and papers" issued by an officer of discretion" describe these persons as males;--and that whether males or females, "is an issue to be made up there (in Havana) and determined by their Courts, and not ours." They must therefore be sent to Havana, to have this issue decided, whether they are males or females. And no doubt a Spanish court would turn them into males. "Courtesy" and a Custom House pass , must determine them, before our Courts, and particularly before the Supreme Court of the United States, to be as they are described in a fradulent paper, that is , as males. "Courtesy" and a Spanish Custom House pass , according to "one of the first intellects of the South," will make, before our Courts, a woman a man! What wonders this "courtesy" will work!
Again, suppose another case. Suppose that a daughter of "one of the first intellects of the South," should happen to be in Havana, no matter how she got there, and that while there, some Spanish subject, some Ruiz and Montez, should claim her, to be his wife, and some Custom House pass , made out in pursuance of "the forms and papers of an authorized officer having discretion," should describe her to be his wife, and she should after that escape to the United States and claim that she was not his wife. According to the doctrine of "one of the first intellects of the South," she must be sent back to Havana. The "forms and papers" must be conclusive before our courts. Marriage is as important a relation as the relation of master and slave. And whether she is the lawful wife of such Spanish subject, cannot be determined by our courts. According to the doctrine of "one of the first intellects of the South," "courtesy" would require that the issue, whether married or not, should "be made up there (in Havana,) "and decided by their courts, and not ours." And again, suppose that one of our cruisers should meet upon the ocean, a piratical vessel, warring against all nations. The piratical vessel has "all the forms and papers" to show that she is a regular Spanish vessel, and not a pirate. But notwithstanding these "forms and papers," she is in point of fact , a pirate. Our cruiser could not touch her, on account of the "forms and papers." The vessel must be "respected and received," on account of these "forms and papers," as a regular Spanish vessel. And the issue, whether a pirate or not, must be "made up there (in Havana,) and decided by their courts, and not ours." Our courts cannot inquire into the fact, but must be governed by "the forms and papers." "Forms and papers," according to the doctrine of "one of the first intellects of the South," will destroy the piratical character of the vessel, at least before our courts. And again, suppose that the slaver, which brought these Africans from the coast of Africa, contrary to the law of Spain, instead of proceeding to Africa, had proceeded to the coast of the United States, and had anchored off Charleston, and had at night sent in a boat's crew and stolen thirty negroes, who belonged to "one of the first intellects of the South," and twenty-five negroes, and carried them to Havana, and sold them to Ruiz and Montez,--and that Ruiz and Montez had procured in Havana, from an officer of "discretion" a pass describing these fifty negroes as their slaves, and that after this, these fifty negroes had escaped and returned to the United States, thirty of them to their master, "one of the first intellects of the South," and twenty to enjoy their freedom. What is the doctrine now broached in a case of this kind: a case which would involve the same principles as are involved in the case of the Africans of the Amistad? Why that "courtesy" should require our courts to send these fifty negroes back to Havana; that the issue whether the thirty belonged to "one of the first intellects of the South" and the twenty were free , cannot be decided by our courts on account of the "forms and paper" issued in Havana; and that the issue whether the thirty were the slaves of "one of the first intellects of the South," and the twenty were free , must be "made up there (in Havana) and decided there by their courts, and not by ours." In a case of this kind, which in point of principle, would be exactly like the case of the Africans of the Amistad, "one of the first intellects of the South" would be the first to rebel against the doctrine which he now advances.
The case of the Africans now before the Supreme Court is divested of all difficulty. By the record it appears that they never were and never could have been the "property" of Ruiz and Montez, or of any one else. The record therefore shows that they cannot be delivered up. They cannot be delivered up, unless the court find they were the property of Ruiz and Montez, who were once claimants. The record shows that they could not be either their "property," or the "property" of any one else.
A CALM OBSERVER.
