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Correspondence of the Journal of Commerce
Washington, March 1, 1841
In the opening of the Court this morning, Mr. Gilpin, the Attorney General, presented a series of appropriate resolutions in reference to the decease of Judge Barbour, which had been adopted on Friday at a meeting of the Bar and officers of the Court. The Hon. Thomas Clayton presided at the said meeting, the Hon. Silas Wright officiated as Secretary, and the resolutions were presented by Mr. Walter Jones, by whose pen I presume they were drawn--so brief, so simple, unadorned, yet touching and appropriate. The Chief Justice responded in a short address, on behalf of the Court, observing that they had scarcely yet recovered from the unexpected blow by which a brother had been so suddenly stricken down by their side. He then recited the circumstances, the same, though less minute, as I gave them to you, and concluded with ordering the resolutions to be entered on the records of the Court.
The Chief Justice then announced that the term will close on the 10th, and no argument will be heard after this week. Consequently, the Massachusetts and Rhode Island Boundary case, the Pennsylvania and Maryland kidnapping case, and every other case in which a long argument is to be expected, will be laid over.
Mr. Adams then resumed his place in behalf of the African captives of the Amistad. He commenced by refering to the melancholy event which had occured since he last addressed the Court, and which had interrupted the action of the Court itself; he begged permission to express his hearty, cordial, painful concurrence in the sentiments of the Court and Bar, in relation to the deceased Judge. He then briefly restated the course of argument which he had thought it his duty to adopt, first appealing to this Court as a Court of JUSTICE, and then shewing with what injustice his clients had met from the Executive Court of the Government, which injustice he traced to its source, a strong sympathy with one of the parties in interest and against the other. He took the occasion to disclaim all feelings of personal unkindness towards the President, or the Secretary of the State, or any of the Cabinet relative to the case. With every one of them he had lived in the private intercourse, on terms of the [word missing]. At the very moment of the expiration of this Administration, he felt extreme reluctance at bringing its conduct before the Court. He appealed to his learned friend the Attorney General, to bear witness that he was not voluntary in doing it. He had even descended to personal solicitation that he might be spared the necessity of appearing, by a comment on the part of the Executive, to a dismissal of the appeal, and allowing the matter to rest on the decision of the Court below. But he had failed in his effort, and painful as it was, he would do justice to his clients, whose lives and liberties were now depending upon the decision of this Court.
He then concluded his analysis of the course of the Executive--the correspondence of the Secretary with the District Attorney of Connecticut--the suppressed letters of the latter--the opinion of the late Attorney General--the complaints of M. Anguis that there was any sympathy for the Africans--the alleged confidential conversations of the Secretary with the Spanish Minister--the suggestion first made by the District Attorney of Connecticut in his suppressed letter to the Secretary of State--then by the Secretary--confidential conversation to the Spanish Minister, which resulted in the formal application of the latter for a ship of war to carry the Africans "beyond seas" for trial; the dispatch of the Grampus to New Haven, under secret orders, with the direction not to wait for the Africans to appeal. Perhaps I may hereafter give you a brief survey of the whole of this part of the argument, including what is yet behind of his first day's speech. The examination of the opinion of the late Attorney General was considerably minute and very searching. The whole rests on the idea that the "due faith and credit" which "comity" requires , should be paid to the acts of foreign courts and officers, goes so far that a mere passport or custom house permit is to conclude all Courts in regard to all questions of life, liberty or property, in all countries and between all parties. Papers are to be credited, said Mr. A., for that which they purport to do. But whoever supposed that a custom house permit was evidence of property in him who obtained it? And he referred to decisions of this Court to that effect.
He examined the celebrated case of the Antelope, and brought forward the records of the District and Circuit Courts in that case, to show, first, that so far as anything was decided by that case, it was in favor of the Africans, in deciding that our Courts will take notice of the unlawfulness of the African slave trade after it has been abolished by any nation, and that in questions of property in African slaves, the individuals named shall be identified by actual proof to the satisfaction of the Court, and secondly, that on the main point, the recognition of foreign slave property, the Judges of the Supreme Court declined giving reasons for their respective opinions, because the Court was equally divided, and Chief Justice Marshall said no principle was decided by the case. It stood on the decision of the lower Court only, just because there was not a majority of the Supreme Court to reverse it: but this court has never sanctioned the principle. He prayed the Court more plainly to review that great question, and if, unhappily for the country, they should ever be divided on it, to deliver their opinions to the public, with the reasons. It might have been proper for the Judges to suppress their opinions and arguments on the former occasion, but now the public mind requires an examination.
After quoting the conclusion to which the late Attorney General came, advising that the President should at once issue an order for the delivery of the slaves (as they were assumed to be) to the Spanish authorities, he exclaimed--"for the delivery of these MEN, being at that time in the judicial custody of the Courts of the United States! And that is the opinion which the American Secretary of State told the Spanish Minister in the Cabinet had adopted! Why did they not act upon it? Why did not the President send an order at once to the Marshal, to seize these men and ship them beyond seas, or deliver them to the Spanish Minister? I am ashamed, said he, I am ashamed of my country, that such an opinion should have been delivered by any public officer, especially by the legal counselor of the Executive. I am ashamed to stand up before the nations of the earth, with such an opinion recorded before us as official, and still more as adopted by the Cabinet--which yet DID NOT DARE TO DO THE DEED. Why did they not do it? If it had been done, it would have ended the question at once, at least so far as relates to my unfortunate clients. They would have been wrested from that protection which was of all things their due after they had been taken into the custody of the Courts of the country, Why was it not done? There were to have been an impression still left, that an order like this would require to be enforced by a body of troops. The people of Connecticut never would, never ought to have suffered it to be executed by main force.
The order of the President, which was given to consign them over to slavery and death was not signed by him in his official capacity, and Mr. A. intimated a strong suspicion that the blunder in the first order, of substituting Circuit for District Court, was corrected in the State Department without the knowledge of the President. It was this sympathy, he said, prevailing every where to such a degree, as to pervert the understanding of all persons covened, and blind their minds to all the most sound principles on which the liberties of this nation are founded; leading to a course of action, not only unjust to the persons whose lives and liberties were at stake, but futile to the independence of the Judiciary and the power of the Courts.
Mr. A. then went into a brief but severe examination of the article, said to be from one of the brightest [text missing]...which the case wasn't to turn by the Attorney General. He showed that it was not even valid as a passport, because it contained no description of the person of the individual or individuals to which it was intended to apply, [word missing] matter, he said, which everyone who had traveled in those countries where passports are used as essential to the very nature and object of those documents. But even if it were good as a passport, it is of no use or force as evidence of property, because it was never designed to have any such force. And thirdly, there is strong presumptive evidence on [word missing] face of it, either of fraud, or that it was not given for the persons on board the Amistad. This uncertained and the consequence of issuing a decree affecting individuals severally, guided by such a vague and uncertain directory, were forcibly presented. In closing, I said [rest of text missing].
