MAY IT PLEASE YOUR HONORS—
In rising to address this Court as one of its attorneys and counselors, regularly admitted at a great distance of time, I feel that an apology might well be expected where I shall perhaps be more likely to exhibit at once the infinities of age and the inexperience of youth, than to render those services to the individuals whose lives and liberties aren't the disposal of this Court which I would most earnestly desire to render. But as I am unwilling to employ one moment of the time of the Court in anything that regards my own personal situation, I shall reserve what few observations I may think necessary to offer as an apology till the close of my argument on the merits of the question.
I therefore proceed immediately to say that, in a consideration of this case, I derive, in the distress I feel both for myself and my clients, consolation from two sources—first, that the rights of my clients to their lives and liberties have already been defended by my learned friend and colleague in so able and complete a manner as leaves me scarcely anything to say, and I feel that such full justice has been done to their interests, that any fault or imperfection of mine will merely be attributed to its true cause; and secondly, I derive consolation from the thought that this Court is a Court of JUSTICE. And in saying so very trivial a thing I should not on any other occasion, perhaps, be warranted in asking the Court to consider what justice is. Justice, as defined in the Institutes of Justinian, nearly 2000 years ago, and as it felt and understood by all who understand human relations and human rights, is—
"Constans et perpetua voluntas, jus suum cuique tribuendi."
"The constant and perpetual will to secure to every one HIS OWN right."
And in a Court of Justice, where there are two parties present, justice demands that the rights of each party should be allowed to himself, as well as that each party has a right, to be secured and protected by the Court. This observation is important, because I appear here on the behalf of thirty six individuals, the life and liberty of every one of whom depend on the decision of this Court. The Court, therefore, I trust, in deciding this case, will form no lumping judgment on these thirty six individuals, but will act on the consideration that the life and the liberty of every one of them must be determined by its decision for himself alone.
They are here, individually, under very different circumstances, and in very different characters. Some are in one predicament, some in another. In some of the proceedings by which they have been brought into the custody and under the protection of this Court, thirty two or three of them have been charged with the crime of murder. Three or four of them are female children, in. capable, in the judgment of our laws, of the crime of murder or piracy or, perhaps, of any other crime. Yet, from the day when the vessel was taken possession of by one of our naval officers, they have all been held as close prisoners, now for the period of eighteen long months, under custody and by authority of the Courts of the United States. I trust, therefore, that before the ultimate decision of this Court is established, its honorable members will pay due attention to the circumstances and condition of every individual concerned.
When I say I derive consolation from the consideration that I stand before a Court of Justice, I am obliged to take this ground, because, as I shall show, another Department of the Government of the United States has taken, with reference to this case, the ground of utter injustice, and these individuals for whom I appear, stand before this Court, awaiting their fate from its decision, under the array of the whole Executive power of this nation against them, in addition to that of a foreign nation. And here arises a consideration, the most painful of all others; in considering the duty I have to discharge, in which, in supporting the action to dismiss the appeal, I shall be obliged not only to investigate and submit to the censure of this Court, the form and manner of the proceedings of the Executive in this case, but the validity, and the motive of the reasons assigned for its interference in this unusual manner in a suit between parties for their individual rights.
At an early period of my life it was my fortune to witness the representation upon the stage of one of the tragic masterpieces of the great Dramatist of England, or I may rather say of the great Dramatist of the world, and in that scene which exhibits in action the sudden, the instantaneous fall from unbounded power into irretrievable disgrace of Cardinal Wolsey, by the abrupt declaration of displeasure and dismission from the service of his King, made by that monarch in the presence of Lord Surry and of the Lord Chamberlain; at the moment of Wolsey's humiliation and distress, Surry given vent to his long suppressed resentments for the insolence and injuries which he had endured from the fallen favorite while in power, and breaks out into insulting and bitter reproaches, till checked by the Chamberlain, who says:
"Oh! my Lords;
Press not a falling man too far: 'tis Virtue."
The repetition of that single line, in the relative position of the parties, struck me as a moral principle, and made upon my mind an impression which I have carried with me through all the changes of my life, and which I trust I shall carry with me to my grave.
It is, therefore, peculiarly painful to me, under present circumstances, to be under the necessity of arraigning before this Court and before the civilized world, the course of the existing Administration in this case. But I must do it. That Government is still in power, and thus, subject to the control of the Court, the lives and liberties of all my clients are in its hands. And if I should pass over the course it has pursued, those who have not kind an opportunity to examine the case and perhaps the Court itself, might decide that nothing improper had been done, and that the parties I represent had not been wronged by the course pursued by the Executive. In making this charge, or arraignment, as defensive of the rights of my clients I now proceed to an examination of the correspondence of the Secretary of State with the ambassador of her Catholic Majesty, as officially communicated to Congress, and published among the national documents.
The charge I make against the present Executive administration is that in all their proceedings relating to these unfortunate men, instead of that Justice, which they were bound not less than this honorable Court itself to observe, they have substituted Sympathy!—sympathy with one of the parties in this conflict of justice, and antipathy to the other. Sympathy with the white, antipathy to the black—and in proof of this charge I adduce the admission and avowal of the Secretary of State himself. In the letter of Mr. Forsyth to the Spanish Minister d'Argaiz, of 13th of December, 1839, [Document H. R. N. S. 185,] defending the course of the administration against the reproaches utterly ground. less, but not the less bitter of the Spanish Envoy, he says:
"The undersigned cannot conclude this communication without calling the attention of the Chevalier d'Argaiz to the fact, that with the single exception of the vexatious detention to which Messrs. Montes and Ruiz have been subjected in consequence of the civil suit instituted against them, all the proceedings in the matter, on the part both the Executive and Judicial branches of the government have had their foundation in the ASSUMPTION that these persons ALONE were the parties aggrieved; and that their claims to the surrender of the property was founded in fact and in justice." (PP 29, 30.]
At the date of this letter, this statement of Mr. Forsyth was strictly true. All the proceedings of the government, Executive and Judicial, in this case had been founded on the assumption that the two Spanish slave dealers were the only parties aggrieved— that all the right was on their side and all the wrong on the side of their surviving self emancipated victims. I ask your honors, was this JUSTICE, No. It was not so considered by Mr. Forsyth himself. It was sympathy, had he so calls it, for in the preceding page of the same letter referring to the proceedings of this Government from the very first intervention of Lieut. Gedney, he says:
"Messrs. Ruiz and Montes were first found near the coast of the United States, deprived of their property and of their freedom, suffering from lawless violence in their persons, and in imminent and constant danger of being deprived of their lives also.
They were found in this distressing and perilous situation by officers of the United States, who, moved towards them by sympathetic feeling which subsequently became as it were national, immediately rescued them from personal danger, restored them to freedom, secured their oppressor, that they might abide the consequences of the acts of violence perpetrated upon them, and placed under the safeguard of the laws all the property which they claimed as their own, to remain in safety until the competent authority could examine their title to it, and pronounce upon the question of ownership agreeably to the provisions of the 9th article of the treaty of 1795."
This sympathy with Spanish slave traders is declared by the Secretary to have been first felt by Lieutenant Gedney. I hope this is not correctly represented. It is imputed to him and declared to have become in a manner national. The national sympathy with the slave traders of the baracoons is officially declared to have been the prime motive of action of the government: And this fact is given as an answer to all the claims, demands and reproaches of the Spanish minister! I cannot urge the same objection to this that was brought against the assertion in the libel— that it said the thing which is not—too unfortunately it was so, as he said. The sympathy of the Executive government, and as it were of the nation, in favor of the slave traders, and against these poor, unfortunate, helpless, tongueless, defenseless Africans, was the cause and foundation and motive of all these ,proceedings, and has brought this case up for trial before your honors.
I do not wish to blame the first sympathies of Lieut. Gedney, nor the first action of the District and Circuit Courts. The seizure of the vessel, with the arrest and examination of their Africans' was intended for inquiry, and to lead to an investigation of the rights of all parties. This investigation has ultimated in the decision of the District Court, confirmed by the Circuit Court, which it is now the demand of the Executive should be reversed by this Court. The District Court has exercised its jurisdiction over the parties in interest, and has found that the right was with the other party, that the decisions of JUSTICE were not in accordance with the impulses of sympathy, and that consequently the sympathy was wrong before. And consequently it now appears that everything which has flowed from this mistaken or misapplied sympathy, was wrong from the beginning.
For I inquire by what right, all this sympathy, from Lieut. Gedney to the Secretary of State, and from the Secretary of State, as it were, to the nation, was extended to the two Spaniards from Cuba exclusively, and utterly denied to the fifty two victims of their lawless violence. By what right was it denied to the men who had restored themselves to freedom, and secured their oppressors to abide the consequences of the acts of violence perpetrated by them, and why was it extended to the perpetrators of those acts of violence themselves' When the Amistad first came within the territorial jurisdiction of the United States, acts of violence had passed between the two parties, the Spaniards and Africans on board of her, but on which side these acts were lawless, on which side were the oppressors, was a question of right and wrong, for the settlement of which, if the government and people of the United States interfered at all, they were bound in duty to extend their sympathy to them all; and if they interrened at all between them, the duty incumbent upon this intervention was not of favor, but of impartiality—not of sympathy, but of JUSTICE, dispensing to every individual his own right.
Thus the Secretary of State himself declares that the motive for all the proceedings of the government of the United States, until that time, had been governed by sympathetic feeling towards one of the parties, and by the assumption that all the right was on one side and all the wrong on the other. It was the motive of Lieut. Gedney: the same influence had prevailed even in the judicial proceedings until then: the very language of the Secretary of State in this fetter breathes the same spirit as animating the executive administration, and has continued to govern all its proceedings on this subject to the present day. It is but too true that the same spirit of sympathy and antipathy has nearly pervaded the whole nation, and it is against them that I am in duty bound to call upon this Court to restrain itself in the sacred name of JUSTICE.
One of the Judges who presided in some of the preceding trials, is said to have called this an anomalous case. It is indeed anomalous, and I know of no law, but one which I am not at liberty to argue before this Court, no law, statute or constitution, no code, no treaty, applicable to the proceedings of the Executive or the Judiciary, except that law, (pointing to the copy of the Declaration of Independence, hanging against one of the pillars of the courtroom,) that law, two copies of which are ever before the eyes of your Honors. I know of no other law that reaches the case of my clients, but the law of nature and of Nature's God on which our fathers placed our own national existence. The circumstances are so peculiar, that no code or treaty has provided for such a case. That law, in its application to my clients, I trust will be the law on which the case will be decided by this Court.
In the sequel to the diplomatic correspondence between the Secretary of State and the Spanish minister Argaiz, relating to the case of the Amistad, recently communicated by the President of the United States to the Senate, [Doe. 179. l2 Feb. 1841,] the minister refers with great apparent satisfaction to certain resolutions of the Senate, adopted at the instance of Mr. Calhoun, on the 15th of April, 1840, as follows:
1. " Resolved—That a ship or vessel on the high seas, in time of peace, engaged in a lawful voyage, is according to the laws of nations under the exclusive jurisdiction of the state to which her flag belongs as much as if constituting a part of its own domain.''
2. " Resolved— That if such ship or vessel should be forced, by stress of weather, or other unavoidable cause into the port, and under the jurisdiction of a friendly power, she and her cargo, and persons on board, with their property, and all the rights belonging to their personal relations, as established by the laws of the state to which they belong, would be placed under the protection which the laws of nations extend to the unfortunate under such circumstances."
Without entering into any discussion as to the correctness of these principles, let as admit them to be true to their fullest extent, and what is their application to the case of the Amistad? If the first of the resolutions declares a sound principle of national law, neither Lieut. Gedney, nor Lieut. Meade, nor any officer of the brig Washington had the shadow of a right even to set foot on board of the Amistad. According to the second resolution, the Africans in possession of the vessel were entitled to all the kindness and good offices due from a humane and Christian nation to the unfortunate; and if the Spaniards were entitled to the same, it was by the territorial right and jurisdiction of the State of New York and of the Union, only to the extent of liberating their persons from imprisonment. Chevalier d'Argaiz, therefore, totally misapprehends the application of the principles asserted in these resolutions of the Senate, as indeed Mr. Forsyth appears by his answer to this letter of the Chevalier to be fully aware. From the decisiveness with which on this solitary occasion he meets the pretensions of the Spanish Envoy, a fair inference may be drawn that the Secretary himself perceived that the Senatorial resolutions, instead of favoring the course of Montes and Ruiz, have a bearing point blank against them.
The Africans were in possession, and had the presumptive right of ownership; they were in peace with the United States; the Courts have decided, and truly, that they were not pirates; they were on a voyage to their native homes—their dulces Argos; they kind acquired the right and so far as their knowledge extended they had the power of prosecuting the voyage; the ship was theirs, and being in immediate communication with the shore, was in the territory of the State of New York; or, if not, at least half the number were actually on the soil of New York, and entitled to all the provisions of the law of nations, and the protection and comfort which the laws of that State secure to every human being within its limits.
In this situation Lieut. Gedney, without any charge or authority from his government, without warrant of law, by force of fire arms, seizes and disarms them, then being in the peace of that Commonwealth and of the United States, drives them on board the vessel, seizes the vessel and transfers it against the will of its possessors to another State. I ask in the name of justice, by what law was this done 1 Even admitting that it had been a case of actual piracy, which your courts have properly found it was not, there are questions arising here of the deepest interest to the liberties of the people of this Union, and especially of the State of New York. Have the officers of the U. S. Navy a right to seize men by force, on the territory of New York, to fire at them, to overpower them, to disarm them, to put them on board of a vessel and carry them by force and against their will to another State, without warrant or form of law 1 I am not arraigning Lieut. Gedney, but I ask this Court, in the name of justice, to settle it in their minds, by what law it was done, and how far the principle it embraces is to be carried.
The whole of my argument to show that the appeal should be dismissed, is founded on an averment that the proceedings on the part of the United States are all wrongful from the beginning. The first act, of seizing the vessel, and these men, by an officer of the navy, was a wrong. The forcible arrest of these men, or a part of them, on the soil of New York, was a wrong. After the vessel was brought into the jurisdiction of the District Court of Connecticut, the men were first seized and imprisoned under a criminal process for murder and piracy on the high seas. Then they were libelled by Lieut. Gedney, as property, and salvage claimed on them, and under that process were taken into the Custody of the marshal as property. Then they were claimed by Ruiz and Montes and again taken into custody by the court. The District Attorney of Connecticut wrote to the Secretary of State, September 5th, giving him an account of the matter, stating that " the blacks are indicted for the murder of the captain and mate," and " are now in jail at New Haven ;" that " the next term of our Circuit Court sits on the 17th instant, at which time I suppose," —that is in italics in the printed document—" I suppose it will be my duty to bring them to trial, unless they are in some other way disposed of." This is the first intimation of the District Attorney; it is easy to understand in what "other way" he wished them disposed of. And he closes by saying—"should you hare any instructions to give on the subject, I should line to receive them as soon as may be."
On the 9th of September, he writes again that he has examined the law, which has brought him fully to the conclusion that the Courts of the United States cannot take cognizance of any offense these people may hare committed, as it was done on board a vessel belonging to a foreign state. And then he says,
"I would respectfully inquire, sir, whether there are no treaty stipulations with the Government of Spain that would authorize our Government to deliver them up to the Spanish authorities; and if so, whether it could be done before our court sits".
This is the second intimation from the District Attorney. We shall find others. Now it appears that the Africans were fully in the custody of the Court, first on the criminal charge, and then on the claim to them as property. The Court was to sit in eight days, the District Attorney is satisfied they cannot be tried, and be is anxious to know whether they cannot be disposed of in some way by the Executive, so that the Courts of the United States may have no chance to decide upon the case. May it please your Honors, I am simply pursuing the chain of evidence in this case, to show the effects of the sympathy in favor of one of the parties and against the other, which the Secretary of State says had become in a manner " national." The next document is a letter of the Secretary of State to the District Attorney, Sept. 11, 1839:
"SIR: Since the receipt of your letter of the 5th instant, relative to the case of the Spanish schooner 'Amistad,' brought into the port o, New London on the 26th ultimo, by Lieutenant Gedney, of the surveying brig Washington, a communication has been ad. dressed to this department by the minister of Her Catholic Majesty, claiming the vessel, cargo and blacks," [vessel, cargo and blacks, the Court will observe,] " on board, as Spanish property, and demanding its immediate release. Mr. Calderon's application will be immediately transmitted to the President for his decision upon it, with which you will be made acquainted without unnecessary delay. In the mean time you will take care that no proceeding of your Circuit Court, or of any other judicial tribunal, places the vessel, cargo, or slaves beyond the control of the Federal Executive.
" I am, sir, your obedient servant,
"JOHN FORSYTH."
I know not how, in decent language, to speak of this assertion of the Secretary, that the minister of Her Catholic Majesty had claimed the Africans " as Spanish property." In Gulliver's travels, he is represented as traveling among a nation of beings, who were very rational in many things' although they were not exactly human, and they had a very cool way of using language in reference to deeds that are not laudable. When they wished to characterize a declaration as absolutely contrary to truth, they say the man has " said tee thing that is not." It is not possible for me to express the truth respecting this averment of the Secretary of State, but by declaring that he " has said the thing that is not." This I shall endeavor to prove by allowing what the demand of the Spanish minister was, and that it was a totally different thing from that which was represented.
But I wish first to beg your Honors' special attention to some thing else in this remarkable letter of the Secretary of State. He says, " In the mean time, you will take care that no proceeding of your Circuit Court, or of any other judicial tribunal, places
the vessel, cargo, or slaves beyond the control of the Federal Executive." Here is a ministerial officer of the Executive Government, instructing the District Attorney, before the Judiciary has acted upon the case, to take care that no proceeding of any court places these men beyond reach of the Federal Executive. How was he to do it? In what manner was an Executive officer to proceed, so that neither the Circuit Court of the United States, nor any state Court, could dispose of the vessel or the men in any manner, beyond the control of the Federal Executive. A farther examination of the correspondence in the conclusion, will show how it was intended to be done. But I now come to inquire what was the real demand of the Spanish minister, and to show what was the duty of the Secretary of State on receiving such a de mend.
Here we have the first letter of Mr. Calderon to Mr. Forsyth.
The name of this gentleman is illustrious in the annals of Spain, and for himself personally, during his residence in this country, I have entertained the most friendly and respectful sentiments. I have enjoyed frequent interviews with him, and have found him intelligent, amiable, learned, and courteous. I wish therefore to say nothing respecting him that is personally disrespectful or unkind. But it is my duty to comment with the utmost plainness, and what perhaps your Honors will think severity, on his official letter to the American Secretary of State. His letter begins:—
"NEW YORK, Sept. 6, 1839.
'` The undersigned, envoy extraordinary and minister plenipotentiary of her Catholic Majesty the Queen of Spain, has the honor of calling the attention of the honorable John Forsyth, Secretary of State of the United States, to a recent and very public occurrence of which, no doubt, Mr. Forsyth is already informed, and in consequence of which it is the imperious duty of the undersigned to claim an observance of the law of nations' and of the treaties existing between the United States and Spain. The occurrence alluded to is the capture of the Spanish schooner ' Amistad.'
" This vessel sailed from Havana on the 28th of June, bound to Guanaja, in the vicinity of Porto Principe, under the command of her owner, Don Ramon Ferrer, laden with sundry merchandise. and with fifty three negro slaves on board; and, previous to her departure, she obtained her clearance (alijo) from the custom house, the necessary permit from the authorities for the transportation of the negroes, a passport, and all the other documents required by the laws of Spain for navigating a vessel and for proving ownership of property; a circumstance particularly important in the opinion of the undersigned."
Here your Honors will observe the same distinction of " merchandise and Negroes," which was made by the District Attorney, showing the universal sense of the difference between merchandise and persons. He goes on:
"During the night of the 30th of said month, or about daybreak on the following day, the slaves rose upon the crew, and killed the captain, a slave of his, and two sailors—sparing only two persons, after ill treating and wounding them, namely, Don Jose Ruiz and Don Pedro Montes: of whom the former was owner of forty nine of the slaves, and the latter of the other four. These they retained, that they might navigate the vessel and take her to the coast of Africa. Montes, availing himself of his knowledge of nautical affairs, and under favor of Divine Providence— 'the favor of Divine Providence!"—succeeded in directing the vessel to these shores. He was spoken by various vessels, from the captains of which the Negroes bought provisions, but to whom, it seems, he was unable to make known his distress, being closely watched. At length, by good fortune, he reached Long Island, where the 'Amistad' was detained by the American brig of war 'Washington,' Captain Gedney, who, on learning the circumstances of the case, secured the Negroes, and took them with the vessel to New London, in the state of Connecticut.
"The conduct of that commander and his subalterns toward the unfortunate Spaniards has been that which was to be expected from gentlemen. and from officers in the service of an enlightened nation friendly to Spain. That conduct will be appreciated as it deserves by my august sovereign, and by the Spanish government, and will be reciprocated on similar occasions by the Spaniards— a people ever grateful for benefits received." [We shall see some proofs of Spanish gratitude, as we proceed in the case.]
" The act of humanity thus performed would have been complete, had the vessel at the same time been set at liberty, and the Negroes sent to be tried by the proper tribunal, and by the violated laws of the country of which they are subjects. The under signed is willing to believe that such would have been the case, had the general government been able to interpose its authority in the first instance, as it has probably done during the short interval between the occurrence of this affair and the period when the undersigned received an authentic statement of the facts."
This is what the Spanish minister demanded, that the vessel should be set at liberty, and the Negroes sent to Cuba to be tried. And he is so confident in the disposition the United States in favor of this demand, that he even presumes the President of the United States had already immediately dispatched an order to the Court in Connecticut, to stay its proceedings and deliver up the Negroes, to the Government of Spain.
What combination of ideas led to that conclusion, in the mind of Mr. Calderon, I am not competent to say. He evidently supposes the President of the United States to possess what we understand by arbitrary power—the power to decide cases and to dispose of persons and of property, mero motu, at his own discretion, and without the intervention of any court. What led him to this imagination I am unable to say. He goes on to say that the officers of the Washington, in the service of the United States, have presented to that incompetent Court,—the U. S. District Court in Connecticut—a petition, claiming salvage: " a claim which, in view of existing treaties, the undersigned conceives can. not be allowed in the sense in which it is made." This is that most grateful nation! The deliverers of these two Spaniards, the representative of a most grateful nation insists, are not deserving of any recompense whatever!
Now, I beg your Honors to see if there is, among all these specifications, any one demand that corresponds with that which the Secretary of State appears to have been made. He demands,
1st. That the vessel be immediately delivered up to her owner, together with every article found on board at the time of her capture by the Washington, without any payment being exacted on the score of salvage, or any charges made, other than those specified in the treaty of 1795, article 1st.
Yet he had already said the captain, and owner, Ferrer, was killed.
" 2d. That it be declared that no tribunal in the United States has the right to institute proceedings against, or to impose penalties upon, the subjects of Spain, for crimes committed on board a Spanish vessel, and in the waters of the Spanish territory."
Declared, by whom? By the President of the United States. Of course, he does not demand that the " incompetent tribunal" in Connecticut, before which the suit was brought, should declare this, but that the President of the United States should issue a proclamation, declaring that no court in this country could hold cognizance of the case. Is there in this a demand that the net "roes should be delivered up as Spanish property? It is a direct protest against any judicial tribunal taking cognizance of the case, and that the President should issue a proclamation to prevent any such proceedings whatever.
"3d. That the Negroes be conveyed to Havana, or be placed at the disposal of the proper authorities in that part of Her Majesty's dominions, in order to their being tried by the Spanish laws which the, have violated; and that, in the mean time, they be kept in safe custody, in order to prevent their evasion."
In what capacity does he demand that the President of the United States should place himself? Is it a demand to deliver up these people as property? No. Is it that they should deliver them to the minister himself, as the representative of the Spanish government, to be disposed of according to the laws of Spain ? No. It demands of the Chief Magistrate of this nation that he should first turn himself into a jailer, to keep these people safely, and then into a tipstaff to take them away for trial among the slave traders of the baracoons. Was ever such a demand made upon any government? He must seize these people and keep them safely, and carry them, at the expense of the United States, to another country to be tried for their fires! Where in the law of nations there a warrant for such a demand?
May it please your Honors—If the President of the United States had arbitrary and unqualified power, he could not satisfy these demands. He must keep them as a jailer; he must then send them beyond seas to be tried for their lives. I will not recur to the Declaration of Independence—your Honors have it implanted in your hearts—but one of the grievous charges brought against George III. was, that he had made laws for sending men beyond areas for trial. That was one of the most odious of those acts of tyranny which occasioned the American revolution. The whole of the reasoning is not applicable to this case, but I submit to your Honors that, if the President has the power to do it in the case of Africans. and vend them beyond seas for trial, he could do it by the same authority in the case of American citizens. By a simple order to the marshal of the district, he could just as well seize forty citizens of the United States, on the demand of a foreign minister, and send them beyond seas for trial before a foreign court. The Spanish minister farther demands—
"4th. That if, in consequence of the intervention of the authorities of Connecticut, there should be any delay in the desired delivery of the vessel and the slaves, the owners both of the former be indemnified for the injury that may accrue to them."
Now, how are all these demands to be put together? First, he demands that the United States shall keep them safely, and send them to Cuba, all in a lump, the children as well as Cinque and Grabbo. Next, he denies the power of our courts to take any cognizance of the case. And finally, that the owners of the slaves shall be indemnified for any injury they may sustain in their property. We see in the whole of this transaction, a confusion of ideas and a contradiction of positions from confounding together the two capacities in which these people are attempted to be held. One moment they are viewed as merchandise, and the next as persons. The Spanish minister, the Secretary of State, and every one who has had anything to do with the case, all have run into these absurdities. These demands are utterly inconsistent. First, they are demanded as persons, as the subjects of Spain, to be delivered up as criminals, to be tried for their lives, and liable to be executed on the gibbet. Then they are demanded as chattels, the same as so many bags of coffee, or bales of cotton, belonging to owners, who have a right to be indemnified for any injury to their property.
I now ask if there is, in any one or in all those specifications, that demand which the Secretary of State avers the Spanish Minister had made, and which is the basis of the whole proceeding in this case on the part of the Executive.
The letter of the Secretary, which is the foundation of the whole proceeding of the District Attorney, in making the United States a party, on the ground of a demand by the Spanish Minister for the delivery of these people as property, " says the thing that is not." The letter proceeds.
"In support of these claims, the undersigned invokes the law of nations, the stipulations of existing treaties, and those good feelings"—[good feelings, indeed, he might well say' where all the feelings were in favor of his demand]—" so necessary to the maintenance of the friendly relations that subsist between the two countries, and are so interesting to both.
" The undersigned would be apprehensive of offending Mr. Forsyth by supposing it in t;.e least degree necessary to bring to his recollection his own well known Construction (`disposiciones) of the law of nations, in a case analogous to the one under consideration."
This is what the logicians call argumentum ad hominem—an appeal, first to the feelings of the individual, not to his sense of justice. He then brings up to Mr. Forsyth his own construction of the law of nations, as given in another case, which he deems analogous. Perhaps I may be justified in conjecturing to what case he alludes, and I will say that, if he alludes to any case of public notoriety, I shall be able to show, before I close, that there is no analogy to this case.
M. Calderon de la Barca then refers to several treaty stipulations in support of his demand, and particularly the 8th, 9th, and 10th articles of the treaty of 1795, continued in force by the treaty of 1819.
"ART. 8. In case the subjects and inhabitants of either party, with their shipping, whether public and of war, or private and of merchants, be forced, through stress of weather, pursuit of pirates or enemies, or any other urgent necessity, for seeking of shelter and harbor, to retreat and enter into any of the rivers, bays, roads, or ports, belonging to the other party, they shall be received and treated with all humanity, and enjoy all favor, protection, and help; and they shall be permitted to refresh and provide themselves, at reasonable rates, with victuals and all things needful for the subsistence of their persons, or reparation of their ships, and prosecution of their voyage; and they shall no ways be hindered from returning out of the said ports or roads, but may remove and depart when and whither they please, without any let or hindrance."
This is a provision for vessels with their owners, driven into port by distress. Who was the Spanish owner here with his ship? There was none. I say the Africans were here with their ship. If you say the original owner is referred to, in whose name the ship's register was given, he was dead, he was not on board, and would not claim the benefit of this article. The vessel either belonged to the Africans, in whose possession it was found, and who certainly kind what is everywhere the first evidence of property, or there was no person to whom this article could apply, and it was not casus foederis. The truth is, this article was not intended to apply to such a case as this, but to the common case, in regard to which it has doubtless been carried into execution hundreds of times, in meeting the common disasters of maritime life.
The Africans, who certainly had the prima facie title to the property, did not bring the vessel into our waters themselves, but were brought here against their will, by the two Spaniards, by stratagem and deception. Now, if this court should consider, as the courts below have done, that the original voyage from Lomboko, in Africa, was continued by the Spaniards in the Amistad, and that pursuing that voyage was a violation of the laws of the United States, then the Spaniards are responsible for that offense. The deed begun in Africa was not consummated according to its original intention, until the Negroes were landed at their port of final destination in Porto Principe. The clandestine landing in Havana, the unlawful sale in the barracoons, the shipment on board the Amistad, were all parts of the original transaction. And it was in pursuit of that original unlawful intent that the Spaniards brought the vessel by stratagem into a port of the United States. Does the treaty apply to such voyages ? Suppose the owner had been on board, and his voyage lawful, what does the treaty secure to him? Why, that he might repair his ship, and purchase refreshments, and continue his voyage. Ruiz and Montes could not continue the voyage. But, suppose the article applicable, and what were the United States to do ? They must place those on board the ship in the situation they were in when taken, that is, the Africans in possession, with the two Spaniards as their prisoners, or their slaves, as the case might be; the Negroes as masters of the ship, to continue their voyage, which on their part was certainly lawful.
If any part of the article was applicable to the case it was in favor of the Africans. They were in distress, and were brought into our waters by their enemies' by those who sought, and who are still' seeking, to reduce them from freedom to slavery, as a reward for having spared their lives in the fight. If the good offices of the government are to be rendered to the proprietors of shipping in distress, they are due to the Africans only, and the United States are now bound to restore the ship to the Africans, and replace the Spaniards on board as prisoners. But the article is not applicable at all. It is not a casus federis. The parties to the treaty never could have had any such case in view.. The transaction on board of the vessel after leaving Havana entirely changed the circumstances of the parties, and conferred rights on my most unfortunate clients, which cannot but be regarded by this honorable court.
Next we have article 9:
ART. 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.
Was this ship rescued out of the hands of pirates and robbers? Is this Court competent to declare it ? The Courts below have decided that they have no authority to try, criminally, what happened on board the vessel. They have then no right to regard those who forcibly took possession of the vessel as pirates and robbers. If the sympathies of Lieutenant Gedney, which the Secretary of State says had become national, had been felt for all the parties, in due proportion to their sufferings and their deserts, who were the pirates and robbers, Were they the Africans? When they were brought from Lomboko? in the Tecora, against the laws of Spain, against the laws of the United States, and against the law of nations, so far as the United States, and Spain, and Great Britain, are concerned, who were the robbers and pirates? And when the same voyage, in fact, was continued in the Amistad, and the Africans were in a perishing condition in the hands of Ruiz, dropping dead from day to day under his treatment, were they the pirates and robbers ? This honorable Court will observe from the record that there were fifty-four Africans who left the Havana. Ruiz says in his libel that nine had died before they reached our shores. The marshal's return shows that they were dying day after day from the effects of their sufferings. One died before the Court sat at New London. Three more died before the return was made to the Court at Hartford only seventeen days and three more between that and November. Sixteen fell victims before November, and from that time not one has died. Think only of the relief and benefit of being restored to the absolute wants of human nature. Although p]aced in a condition which, if applied to forty citizens of the United States, we should call cruel, shut up eighteen months in a prison, and enjoying only the tenderness which our laws provide for the worst of criminals, so great is the improvement of their condition from what it was in the hands of Ruiz, that they have perfectly recovered their health, and not one has died; when, before that time, they were perishing from hour to hour.
At the great day of accounts, may it please the Court, who is to be responsible for those sixteen souls that died I Ruiz claims those sixteen as his property, as merchandise. How many of them, at his last hour, will pass before him and say, " Let me sit heavy on thy soul to morrow 1"
Who, then, are the tyrants and oppressors against whom our laws are invoked? Who are the innocent sufferers, for whom we are called upon to protect this ship against enemies and robbers Certainly not Ruiz and Montes.
But, independently of this consideration, the article cannot apt ply to slaves. It says ships and merchandise. Is that language applicable to human beings? Will this Court so affirm? It says they shall be restored entire. Is it a treaty between cannibal nations, that a stipulation is needed for the restoration of merchandise entire, to prevent parties from cutting off the legs and arms of human beings before they are delivered up? The very word entire in the stipulation is of itself a sufficient exclusion of human beings from the scope of the article. But if it was intended to embrace human beings, the article would have included a provision for their subsistence until they are restored, and an indemnification for their maintenance to the officers who are charged with the execution of the stipulation. And there is perhaps needed a provision with regard to the institutions of the free states, to prevent a difficulty in keeping human beings in the custom house, without having them liable to the operation of the local law, the habeas corpus, and the rights of freedom.
But with regard to article 9, I will speak of my own knowledge, for it happened that on the renewal of the treaty in 1819, the whole of the negotiations with the then minister of Spain passed through my hands, and I am certain that neither of us ever entertained an idea that this word merchandise was to apply to human beings.
Mr. Calderon also quotes article 10.
"ART. 10. When any vessel of either party shall be wrecked, foundered, or otherwise damaged, on the coasts or within the do minion of the other, their respective subjects or citizens shall receive, as well for themselves as for their vessels and effects, the same assistance which would be due to the inhabitants of the country where the damage happens, and shall pay the same charges and dues only as the said inhabitants would be subject to pay in a like case; and if the operations of repair should require that the whole or any part of the cargo be unladen, they shall pay no duties, charges, or fees, on the pelt which they shall relayed and carry away."
This article, again, has nothing to do with the case. The Amistad was neither wrecked nor foundered, nor otherwise damaged. She came into our waters voluntarily, so far as the Spaniards were concerned, but involuntarily, so far as concerned the Africans, who were in possession of the vessel. They were intentionally prosecuting a voyage to Africa, but were brought to our shores by deception, and against their wills. This is not casus federis. The treaty has no application here. But if, by any latitude of construction, it could be applied, its benefits belong to the Africans, for they were pursuing a lawful voyage, and not to the Spaniards, who were on an unlawful voyage, in the prosecution of the slave trade.
But the article says the same assistance shall be afforded that our own citizens would be entitled to receive in like circumstances. Let us apply the rule. Suppose the Amistad had been a vessel of the United States, owned and manned by citizens of the United States, and in like circumstances. Say it was a Baltimore clipper, fitted for the African slave trade, and having performed a voyage, had come back to our shores, directly or indirectly, with fifty four African victims on board, and was thus brought into port—what would be the assistance guarantied by our laws to American citizens, in such circumstances? The captain would be seized, tried as a pirate, and hung! And every person concerned, either as owners or on board the ship, would be severely punished. The law makes it a capital offense for the captain, and no appeal to this Court would save him from the gibbet. Is that the assistance which the Spanish minister invokes for Ruiz and Montes ? That is what our laws would secure to our own citizens in like circumstances. And perhaps it would be a reward nearer their merits than the restoration of these poor Negroes to them, or enabling them to complete their voyage.
But my clients are claimed under the treaty as merchandise, rescued from pirates and robbers. Who were the merchandise, and who were the robbers? According to the construction of the Spanish minister, the merchandise were the robbers, and the robbers were the merchandise. The merchandise was rescued out of its own hands, and the robbers were rescued out of the hands of the robbers. Is this the meaning of the treaty ? Will this Court adopt a rule of construction in regard to solemn treaties that will sanction such conclusions, There is a rule in Vattel that no construction shall be allowed to a treaty which makes it absurd. Is any thing more absurd than to say these forty Africans are robbers, out of whose hands they have themselves been rescued? Can a greater absurdity be imagined in construction than this, which applies the double character of robbers and of merchandise to human beings ?
May it please your Honors, there is not one article of the treaty that has the slightest application to this case, and the Spanish minister has no more ground for appealing to the treaty, as a warrant for his demand, than he has for relying on the law of nations.
The next argument that follows is so peculiar that I find it difficult to give a distinct idea of its purpose or application. He says,
"The crime in question is one of those which, if permitted to pass unpunished, would endanger the internal tranquillity and the safety of the island of Cuba, where citizens of the United States not only carry on a considerable trade, but where they possess territorial properties which they cultivate with the labor of African slaves. These, on learning that the crime alluded to had been committed with impunity, (and their friends would not fail to acquaint them with the fact) would lose none of the opportunities for attempting revolt and evasion, which are afforded by the frequent and daily necessity of conveying Negroes by sea from one quarter of the island to another; and to guard against this it would be necessary to use additional precautions at a great expense."
I believe, may it please the Court, that this is not a good argument before this court to determine questions of law and justice by the consideration that there are American citizens who own plantations in the island of Cuba, which they cultivate by the labor of slaves. They own their plantations and slaves there, subject to the laws of Spain, which laws declare the African slave trade to be felony. The Spanish minister has no right to appeal to our courts to pass a particular sentence between parties in a suit, by considerations of their personal interest, or that of other American citizens in the Island of Cuba. What would become of the liberties of this nation if our courts are to pass sentence between parties, upon considerations of the effect it may have upon the interest of American citizens, scattered as they may be in all parts of the world? If it is a valid consideration when applied to Cuba and the American owners of sugar estates and slaves there, it applies equally to all other countries where American citizens may have property; to China, Hindostan, or the Feejee Islands. It was no proper argument for the Spanish minister to urge upon the American Secretary of State. It was undoubtedly calculated and designed to influence his sympathy in the case—that sympathy with one of the parties which he says had become national It was calculated to excite and to influence the Secretary of State not only by the effect to be produced in the island of Cuba, but perhaps also by a reward to certain interests nearer home. But was that JUSTICE? Was that a ground on which courts of justice will decide cases ? I t rust not.
There are a few portions of this letter, which I had rather your Honors would read when you are together in consultation, than to read them myself in this place. I will not trust myself to comment upon them as they deserve. I trust that your Honors, in the pursuit of JUSTICE, will read them, as the document will be in your hands, and you will see why I abstain from doing it. Mr. Calderon proceeds to say,
"If, on the other hand, they should be condemned by the incompetent tribunal that has taken upon itself to try them as pirates and assassins, the infliction of capital punishment in this case would not be attended with the salutary effects had in view by the law when it resorts to this painful and terrible alternative, namely, to prevent the commission of similar offenses. In such case, the indemnification I officially ask for the owners would be n very slender compensation; for, if the property remained unimpaired, as it would remain, the satisfaction due to the public would not be accorded."
And that is a reason why the President of the United States was to issue his lettrede cachet, and send these unfortunate individuals to Cuba. I abstain now from reading the subsequent passages. He concluded by saying,
"In the islands above mentioned the citizens of the United States have always met with a favorable reception and kind treatment. The Spanish Government, for the protection of their property, would immediately accord the extradition of any slaves that might take refuge there from the southern states. Being itself exact in the observance of treaties, it claims the more justly the execution of them, and a reciprocal good correspondence, from a nation, the ally and neighbor of Spain, to whom so many proofs have been afforded of the high degree in which her friendship is esteemed."
They will readily yield fugitive slaves! Was this an argument, I ask the honorable Court, to be addressed to the Secretary of State? Is it upon these principles that cases are to be decided? Is it by these considerations that the action of governments? to be determined? Shall these men be given up on the offer of an equivalent ? " If you will deliver these Africans to me, for whose blood all the slave traders of Cuba thirst, and any slave from the south shall make his escape and came to Cuba, we will readily deliver him up." What is this argument as addressed to the Secretary of State I It may be a very easy thing for the Governor at Havana to seize a fugitive southern slave, or a pretended fugitive, as the case may be, and put him on board a vessel and send him to one of our Southern states. The learned Attorney General, I think, read some authorities to show that this Governor has royal powers, about equal to those of the King, and it may be easy for him to seize any man, black or white, slave or free, who may be claimed as a slave, and send him beyond seas for any purpose. But, has the President of the United States any such powers Can the American Executive do such things? If he is to do them, I should hope, at least, that it might be under treaty stipulations rather more adapted to the object than these. It was going quite far enough, I should think, to require the President of the U. S. to keep these men safely, and send them back at the expense of this nation, without making this—what shall I call it? I will not undertake to qualify it in words—this offer to send back the fugitive slaves of the South as an equivalent, provided the President will consent to deliver up these MEN, by a despotic act, to satiate the vengeance of the slave traders at Havana.
I have now, may it please the Court, examined at great length, and with tedious detail, the letter of the Spanish minister demanding the interposition of the national Executive to restore these unfortunate Africans to the island of Cuba. And now I may in. quire of your Honors, what, in your opinion, was the duty of the Secretary of State, on receiving such a letter. And in the first place, what did he do ?
His first act was, to misrepresent the demand, and to write to the District Attorney in Connecticut, directing him to pursue a claim for the possession of these people on behalf of the United States, on the ground that the Spanish minister had demanded their delivery to him, as the property of Spanish subjects, and ordering him to take care that no court should place them beyond the control of the Executive. That is what he did. And the consequence is the case now before the court. The Attorney of the United States pursued his orders. He stated, in his claim before the District Court, that the Spanish minister had demanded their restoration as property; and then' as if conscious that this claim might not secure the other purpose, of keeping them at all events within the control of the Executive, he added, of his own head, (for it does not appear that he had any instructions on this point,) a second count, claiming, on behalf of the United States, that if the court should find they were not slaves by the laws of Spain, but that they were brought to our shores in violation of the act of Congress for the suppression of the slave trade, then they should be placed at the disposal of the President, to be sent to Africa, according to the provisions of that act. This count was undoubtedly added in consequence of the order not to let them be placed beyond the control of the Executive. In a subsequent term of the court, he filed a new libel, in which this alternative demand was omitted. Why was that done ? I can conceive no other reason than that he had received such instructions from the Executive.
Those instructions do not appear among the printed documents but it does not follow that none were given, for the communication of the President, in answer to the call of the House of Representatives, was not a full one, as I know of my own knowledge. The demand was for all information not incompatible with the public interest, and under that proviso many things were kept back. But there can be no doubt that it was for the purpose of complying with the first order of the District Attorney inserted in the second count, and that it was by the instructions of the department he afterward withdrew it.
[Mr. Baldwin. The count was not withdrawn. A new libel was entered, having only one count, but the first libel was not withdrawn.] Very well—it amounts to this: that the Executive did not choose to hold itself responsible for that construction of the act of Congress. This appears from the appeal. What have the United States appealed from? Why, from n decree of the court, giving them precisely what they had claimed by the District Attorney. The Attorney knew that the libel grounded on the demand of the Spanish minister, (ostensibly, for I have shown that it was a falsification of the terms of that demand by the Secretary of State,) was not sufficient to place the Africans beyond the control of the Executive, in a certain alternative, and therefore he calls upon the Court to put them in the hands of the President, to be sent to Africa—that is, to complete their own voyage.
Well, the District Court investigated the case, and dissipated entirely the pretension that these Africans could be claimed in any way as merchandise. They went the length of declaring that the only lading on board, the boy Antonio, concerning whom there was the slightest pretext of a claim that he was a slave, should be delivered up to the Spanish consul, on behalf of the representatives of his late owner, Captain Ferrer. The United States do not appeal from that decision, and there has been no appeal, although we might have appealed with propriety. And I confess that, had I been of counsel in that stage of the proceedings, 1 should have been much disposed to appeal, on the ground that there was no article of the treaty which has any thing to do with the case. I conceive that this part of the decree of the District Court is not warranted by any law or treaty whatever.
But I do not desire to argue that question now, for I perceive that the district judge, in giving his decision, places it partly on the ground that the boy is desirous of returning. And as volenti non fit injuria, I reconcile my mind to that part of the decision, for we could certainly have no possible motive to interfere with the wishes of the boy. If he really has the desire to return to slavery in Cuba, it would be far from my desire to interfere with his wishes, however strange and unnatural I might deem them to be. But 1 must, at the same time, as an individual, protest against his delivery by any compulsion, or on any ground of obligation in the treaty; for I must maintain, that there is no one of the articles in the treaty cited that has any application whatever to the ease.
And now, may it please your Honors, so strange and singular is every thing that happens, connected with this most singular case, I am informed that, after all, this boy has not been sent to Cuba, notwithstanding his anxiety to go, and the desire of the Spanish consul for his restoration, with a decree of the Court agreeable to his demand. I am informed that he has remained a whole year in prison with the Africans, and is, at this moment, in the custody of the marshal, by what warrant or process I know not, or at whose expense.
The reason for this extended analysis of the demand by the Spanish minister is, that we may be prepared to inquire what answer he ought to have received from the American Secretary. I aver, that it was the duty of the Secretary of State instantly to answer the letter, by showing the Spanish minister that all his de. minds were utterly inadmissible, and that the government of the United States could do nothing of what he required. It could not deliver the ship to the owner, and there was no duty resting on the United States to dispose of the vessel in any such manner. And as to the demand that no salvage should be taken, the Spanish minister should have been told that it was a question depending exclusively on the determination of the courts, before whom the case was pending for trial according to law. And the Secretary aught to have shown Mr. Calderon, that the demand for a proclamation by the President of the United States, against the jurisdiction of the courts, was not only inadmissible but offensive —it was demanding what the Executive could not do, by the constitution. It would be the assumption of a control over the judiciary by the President, which would overthrow the whole fabric of the constitution; it would violate the principles of our government generally and in every particular; it would be against the rights of the Negroes, of the citizens, and of the States.
The Secretary ought to have done this at once, without waiting to consult the President, who was then absent from the city. The claim that the negroes should be delivered was equally inadmissible with the rest; the President has no power to arrest either citizens or foreigners. But even that power is almost insignificant compared with that of sending men beyond seas to deliver them up to a foreign government. The Secretary should have called upon the Spanish ambassador to name an instance where such a demand had been made by any government of another government that was independent. He should have told him, that such a demand was treating the President of the United States, not as the head of a nation, but as a constable, a catch pole—a character that it is not possible to express in gentlemanly language. That i8 what this demand makes of the President of the United States.
The Secretary should also have set the Spanish Minister right with regard to the authorities before whom the question was pending. He should have told him that they were not the authorities of the state of Connecticut but of the United States, the courts of the Union in the state of Connecticut. He should have corrected this mistake of the minister at the beginning. It was a real misapprehension, which has continued through the whole proceeding to the present time, and it ought to have been corrected at first. And what is still more remarkable, the same mistake of calling it the court of Connecticut was made by Mr. Forsyth himself long after.
But what did the Secretary do in fact? He barely replies to Mr. Calderon, that he had sent his letter to the President for his consideration, and that "no time will be needlessly lost, after his decision upon the demand it prefers shall have reached me, in communicating to you his views upon the subject."
And now, from that day to this, the Secretary of State has never answered one of these demands, nor arrested one of these misapprehensions, nor asserted the rights and the honor of the nation against one of these most extraordinary, inadmissible, and insolent demands. He has degraded the country, in the face of the whole civilized world, not only by allowing these demands to remain unanswered, but by proceeding, I am obliged to say, throughout the whole transaction, as if the Executive were earnestly desirous to comply with every one of the demands. In the very misrepresentations of those demands, in his instructions to the District Attorney, under which this case is brought here, why does he take such a course? The Spanish Minister pronounced the Court before which the Secretary brought the question, an incompetent tribunal—and this position has been maintained by the Legation of Spain down to this very month, that a letter of Chevalier d'Argaiz officially protests against the jurisdiction of the courts before which the Secretary professes to be prosecuting the claim of this very minister!
Why does the Spanish Minister persist in such inadmissible pretensions? It is because they were not met in limine in a proper manner—because he was not told instantly, without the delay of an hour, that this Government could never admit much claims, and would be offended if they were repeated, or any portion of them. Yet all these claims, monstrous, absurd and inadmissible as they are, have been urged and repeated for eighteen months, upon our Government, and an American Secretary of State evades answering any of them—evades it to such an extent that the Spanish Minister reproaches him for not meeting his arguments.
The demand of Mr. Calderon was dated September 6. The order of the Secretary to the District Attorney, in regard to the suit, was dated September 11, in which he says that ''a communication has been addressed to this department by the Minister of Her Catholic Majesty, CLAIMING TEE VESSEL, CARGO, AND BLACKS ON BOARD, As SPANISH PROPERTY, and demanding its immediate release." On the 23d of September, the Secretary writes to the Spanish Minister as follows:
SIR: In the examination of the case of the Spanish schooner "Amistad," the only evidence at present within reach of this department is that presented by the ship's paper; and the proceedings of the court of inquiry held by a district judge of Connecticut, on board the schooner, at the time the Negroes in whose possession she was found, were imprisoned for the alleged murder of the captain and mate of the vessel. If you have any other authentic documents relating to the question or evidence of facts which can be useful to a proper understanding of it, I have the honor to request by the direction of the President, that you will communicate them to me with as little delay as practicable.
Here the Secretary reiterates the error of the Spanish minister, instead of correcting it, with regard to the character of the Court before which the case was pending. The Secretary of State calls the United States District for Connecticut "a District Court of Connecticut." The Spanish Minister could not be expected to acquire a correct understanding of the case, unless he was informed, but here he has his error confirmed.
The Secretary further requests the ambassador, if he has any farther documents, " that you will communicate them to me." What had he to do with this evidence? The Spanish minister had made a certain demand upon the government of the United States. Whether it was what it appears to be, or whether it was what the Secretary represented it to be in his orders to the District Attorney, it was no part of the business of the American Secretary of State to look after the evidence. Still, if he had requested the minister to communicate the evidence to the Court, it might not have been exactly improper, but only officious. If the Spanish Minister chose to go into our courts in support of the private claims of Spanish subjects, he could do it, and it was his business to bring forward the proper evidence in support of his claim. Why, then, does the Secretary call upon him to furnish these documents to the Executive Department? Your Honors will judge whether this letter is or is not evidence of a determination then existing on the part of the Executive, to decide this case independently of the judiciary, and ex parte.
Mr. Calderon replies that he has no other evidence to furnish. The next document is the letter of his successor, the Chevalier d'Argaiz:
NEW YORK October 3, 1839.
The undersigned, envoy extraordinary and minister plenipotentiary of Her Catholic Majesty, has the honor of commencing his official correspondence with you, sir, by soliciting an act of justice, which, not being in any way connected with the principal question as yet remaining unsettled by the cabinet, relative to the Negroes, found on board the schooner Amistad on her arrival on these coasts, he does not doubt will be received by you in the manner which he has every reason to expect, from the circumstance that all preceding acts of the department under your charge have been dictated by the principles of rectitude and reciprocity.
Her Majesty's vice consul at Boston, under date of the 24th of September last, says, among other things:
"As it appears from the papers of the schooner that she, as well as her cargo, are exclusively Spanish property, it seems strange that the Court of New London has not yet ordered the delivery of one or both to the owners, if they are present, or to me, as their agent, born in that part of the Union"—[This is a mis translation; it means the official agent in that part of the Union]— "agreeably to the articles of the treaty now in force between the two countries. The delay in the delivery would not be of so much consequence to the proprietors if the vessel did not require immediate repairs, in order to preserve her from complete destruction, and if it were not material that a large part of the cargo should be sold on account of its bad condition.
Here we see the same unfortunate misapprehension continued. The new Spanish minister calls upon the Secretary of State to put the "Court of New London" into speedy action, to lessen the danger of loss to the proprietors by delay, and the Secretary of State takes no pains to correct the error.
On the 24th of October, the Secretary of State wrote again to Mr. Argaiz, on another subject, which is not now before this Court,—the arrest of Ruiz and Montes, at the suit of some of the Africans, in the courts of the State of New York. Mr. Argaiz protested against the arrest, and claims "the interposition of the Executive in procuring their liberation, and indemnity for the losses and injury they may have sustained. To that the Secretary replies:
"It appears from the documents accompanying the note of the Chevalier d'Argaiz, that the two Spanish subjects referred to were arrested on process issuing from the Superior Court of the city of New York, at the suit of, and upon affidavits made by certain colored men, natives of Africa, for the purpose of securing their appearance before the proper tribunal, to answer for wrongs alleged to have been inflicted by them upon the persons of the said Africans; and, consequently, that the occurrence constitutes a simple case of resort by individuals against others to the judicial courts of the country, which are equally open to all without distinction, and to which it belongs exclusively to decide, as well upon the right of the complainant to demand the interposition of their authority, as upon the liability of the defendant to give redress for the wrong alleged to have been committed by him. This being the only light in which the subject can be viewed, and the constitution and laws having secured the judicial power against all interference on the part of the Executive authority, the President, to whom the Chevalier d'Argaiz's note has been communicated, has instructed the undersigned to state, that the agency of this government to obtain the release of Messrs. Ruiz and Montes cannot be afforded in the manner requested by him. The laws of the state of New York, of which the constitution and laws of the United States and their treaties with foreign powers form a part, afford to Messrs. Ruiz and Montes all the necessary means to procure their release from imprisonment, and to obtain any indemnity to which they may be justly entitled, and therefore would render unnecessary any agency on the part of this department for those purposes."
There is a complete answer to all these demands of the Spanish legation. "The constitution and laws have secured the judicial power against All interference of the Executive authority." That is very true. The laws of the state of New York, of which the constitution and laws of the United States and their: treaties with foreign powers form a part, afford to Messrs. Ruiz and Montes all the necessary: means for the security of their rights, and therefore "render unnecessary any agency on the part of" the Executive. That is very correct. There is a perfect answer, worthy of an American statesman But is that all? No. The Secretary finds, after all these disclaimers, one Executive power yet in reserve, which may be put forth to take part against poor Africans, and at least afford evidence of the national sympathy. The Secretary says:
"But inasmuch as the imprisonment of those persons connects itself with another occurrence which has been brought under the President's consideration, in consequence of a correspondence between the Spanish legation and this department, instructions (of which a copy is inclosed) have been given to the Attorney of the United States for the District of New York to put himself in communication with those gentlemen, to offer them his advice (and his aid, if necessary) as to any measure which it may be proper for them to adopt to procure their release, and such indemnity as may be due to them. under our laws, for their arrest and detention."
Because the case "connects itself with another occurrence." What is all this? The independence of the judiciary is first firmly and bravely sustained. It is a question of private rights between parties, with which the executive has nothing to do, and the Government of the United States has no power to interpose. And then the President instructs the District Attorney, the law officer of the government, to "put himself in communication" with one of the parties, to throw all the weight and influence of the government on their side, in order to secure a favorable decision for them in the Courts of the state of New York. May it please your Honors, I will not here enter into an inquiry of the effect of this interference of the Executive of the United States with the Courts of a State, or the extent and operation of the principle which would authorize such interference. I really do not know, my imagination cannot present to me the compass of its effects on the rights of the people of the United States. again ask the attention of this honorable court to this subject. The letter begins with a declaration of the independence of the judiciary of the State of New York, the sufficiency of the laws to secure justice and the incompetency of the Executive to interfere; and yet, because the case connects itself" with another case in which the Executive has considered itself entitled to act, the whole influence of the Government is brought to bear upon the judicial authorities of the State of New York.
I said the Secretary of State had never to this hour undertaken to contest any one of the actual demands of Mr. Calderon, as preferred in his letter of 5th September. He had suffered both Mr. Calderon and his successor to remain under the impression that if their demands were not complied with, for the kidnapping of these people by the Executive, it was not for the want of a will to do it, or of a disposition to contest the claims put forth in so extraordinary a manner upon our government. Let us now see how Mr. Argaiz himself regarded the conduct of the Secretary. On the 5th of November, he writes again to Mr. Forsyth, acknowledging the receipt of Mr. Forsyth's letter, inclosing the instructions of the Attorney of the United States for the District of New York, " that he should offer to these persons his advice and assistance, if needed, with regard to the most proper means of obtaining their liberty." He says:
" Although this answer did not entirely satisfy the desire expressed by the undersigned in the note of October 22d to which he was impelled by the sense of his duty, and by the terms of existing treaties, yet he received it with pleasure and with thanks; with pleasure, because he saw that the Secretary of State did not refuse to admit the reasons which the undersigned had the honor to state in that note; and with shanks, because he saw that the sentiments which had urged him to request with warmth a prompt reply, had been kindly interpreted. The undersigned in consequence, went immediately to New York, where he visited on the 29th ultimo, the Attorney of the United States with whom he had a long conversation, which left him delighted with the affability and courtesy of Mr. Butler, although he did not have the happiness to remain satisfied as to the principal matter, as that officer of justice declared that he could find no other means of obtaining the liberty of Ruiz Montes being already free) than by waiting the determination of the court or courts, against the jurisdiction of which the undersigned had already especially protested."
The Spanish ambassador was not satisfied with the letter, and yet he received it with pleasure, " because he saw that the Secretary did not refuse to admit his reasons." How is that? The Secretary of State took no measures to repel the improper demand made, or to correct the erroneous idea cherished by the Spanish legation; and this neglect Mr. Argaiz construes as a virtual admission of his " reasons ' Why should he not so construe it? Here is also a renewal of the protest, which has uniformly been maintained by the legation, against the right of any court in this country to exercise jurisdiction in the case. And yet this suit is carried on by the Executive, as in pursuance of a demand by the Spanish minister. Mr. Argaiz then refers to two personal conferences which he had with the Secretary, and he is well persuaded that what he had said, together with the indications in his note of October 22, would have been sufficient to convince " one so enlightened and discriminating as the Secretary, of the justice of his claim; that this persuasion has gained strength, from the circumstance that the Secretary of State has made no attempt in his answer to oppose those arguments, but has confined himself to endeavoring to explain the course of civil causes in the courts of this country, in order to show that the government of the United States could not interfere in the manner which her Catholic Majesty's representative requested; it becomes necessary to advance farther arguments, at the risk of being importunate."
And a little farther on, after adverting to the various excuses and palliations which seem to have been presented in these confidential conferences, for not seizing these Negroes and sending them to Cuba by the Executive power, in which he says: "it is allowed by the whole world" that "petitions or accusations of slaves against their masters cannot be admitted in a court,', he concludes by asking—
"As the incompetence of the courts of the United States, with regard to this matter, is so clearly demonstrated, is there no power in the Federal Government to declare it so, and to interpose its authority to put down the irregularity of these proceedings, which the court is not competent to perform? It seems impossible that there should be no such power; but unfortunately there is none"
"Her Catholic Majesty's envoy extraordinary and minister plenipotentiary, nevertheless, seeing that his previous protest did not produce the result which he expected, renews it now, declaring this government responsible for the consequences which may grow out of this affair; and he asks the Secretary of State whether or not he possesses sufficient authority and force to carry into fulfillment the treaty of 1795. If he has not, then there cad be no treaty binding on the other party."
He thinks it impossible there should not be a power in the Federal Government to put down these proceedings of the courts, but he admits that unfortunately there is no such power, and then asks the Secretary of State if he cannot find a power, somewhere, to take the matter out of the hands of the judiciary altogether. And if not, he shall hold this Government responsible for the consequences, for if it has not power to fulfill the treaty, no treaty is binding on either party.
On the 26th of November, the trial of the case having been postponed by the District Court from November to January, he writes again, that he is under the necessity of renewing his former complaints.
"To the first complaint, made by his predecessor, on the 6th September last, nothing more than an acknowledgment of its receipt was thought necessary, which was made on the l6th of the same month. In the answers which the Secretary has pleased to give to the notes of the undersigned, of the 22d of October, and the 5th of November last, that gentleman did not think proper to combat the argument advanced. Whose which the undersigned now proposes to present will be no less powerful, and he hopes will be such that the Secretary will not be able .o deny their Justice.
"The undersigned has the honor to ask in what law, act, or statute, does the said court base its right to take cognizance of the present case? There can be no doubt as to the reply: on no law, act, or statute."
Here he denies again that the Court, before which the Secretary of State had made a demand with the averment that it came from the Spanish minister, has any power to take cognizance of the case. He says there is no law, act, or statute for it, and then he goes on:—
" For, if any such existed, it is, or should be, anterior or posterior to the treaty of 1795. If anterior, it clearly became annulled, because a treaty is one of the superior laws of the State, or the treaty should never have been signed, or ratified, or sanctioned by the legislative bodies. If posterior to the treaty, the legislative bodies, in drawing it up, discussing it, and voting on it, must have seen that it was at variance with a subsisting treaty, which was already a law of the Union. All which serves to show that, in the existing state of the laws, this affair cannot and should not be decided by the common law, but by the international law."
That is to say, the treaty stipulation has taken away the power of the courts of the United States to exercise jurisdiction between parties. Is that a doctrine to be heard by the Secretary of State of the United States from a foreign ambassador without answering it' The ambassador proceeds to urge that "if the General Government of the Union had decided this matter of itself, gubernativamente"—here is a word, used several times in this correspondence, that no American translator has been able to translate into our language. It means, by the simple will or absolute fiat of the Executive, as in the case of the lettres de cachet—or a warrant for the BASTILE—that is what the Spaniard means by gubernativamente, when he asks the Executive of the United States, by his own fiat, to seize these MEN, wrest them from the power and protection of the courts, and send them beyond seas! Is there any such law at Constantinople ? Does the Celestial Empire allow a proceeding like this? Is the Khan of Tartary possessed of a power competent to meet demands like these? I know not where on the globe we should look for any such authority, unless it be with the Governor General of Cuba with respect to Negroes.
" If the General Government had proceeded gubernativamente" —it is not necessary now to consider what would have followed. " But," says the Chevalier d'Argaiz, "very different, however, have been the results; for, in the first place the treaty of 1795 has not been executed, as the legation of her Catholic Majesty has solicited; and the public vengeance has not been satisfied."
" The public vengeance! "What public vengeance ? The vengeance of African slave traders, despoiled of their prey and thirsting for blood! The vengeance of the barracoons! This " public vengeance" is not satisfied. Surely, this is very lamentable. Surely, this is a complaint to be made to the Secretary of State of this government. " For," says he, "be it recollected that the legation of Spain does not demand the delivery of slaves, but of assassins."
How is it possible to reconcile this declaration of the Spanish minister with the libel of the District Attorney, entered by order of the Secretary of State, setting forth what was said to be the demand of the Spanish minister? It is an explicit contradiction.
The Constitution of the United States recognizes the slaves, held within some of the States of the Union, only in their capacity of persons— persons held to labor or service in a State under the laws thereof—persons constituting elements of representation in the popular branch of the National Legislature—persons, the migration or importation of whom should not be prohibited by Congress prior to the year 1808. The Constitution no where recognizes them as property. The words slave and slavery are studiously excluded from the Constitution. Circumlocutions are the fig-leaves under which these parts of the body politic are decently concealed. Slaves, therefore, in the Constitution of the United States are recognized only as persons, enjoying rights and held to the performance of duties.
But, in all countries where men are held as slaves, when they are charged with the commission of crimes, the right of their owners to their persons is, and must necessarily be, suspended; and when they are convicted of capital crimes, the right of the owner is extinguished. Throughout the who]e correspondence between the Spanish ministers and our Department of State, concerning the surrender of these most unfortunate persons, this broad distinction appears to have been entirely and astonishingly overlooked, not only by the Spanish ministers, but by the Secretary of State and by the Attorney General.
Mr. Calderon demands that the President should keep these persons all—all—adult males and children of both sexes included— in close custody, and convey them to Cuba to be tried for their lives. Is it not palpable that if this demand had been complied with, they could not have been restored to their pretended owners, Ruiz and Montes, as merchandise of what nature soever? With what face, then, could the 9th article of the treaty with Spain be alledged to support a demand for the safekeeping and delivery of the captives, not as slaves, but as assassins—not as merchandise, but as men— as infant females, with flesh, and blood, and nerves, and sinews, to be tortured, and with lives to be forfeited and consumed by fire, to appease the public vengeance of the lawless slave traders in Cuba.
Mr. Forsyth, by a most unaccountable oversight of this distinction between persons and things, misrepresents this demand of Mr. Calderon.
He instructs the District Attorney, Mr. Holabird, (11th Sept., 1839, Doc. p. 39, 40,) that the Spanish minister had addressed a communication to the Department of State, claiming the vessel, cargo, AND BLOCKS on board, as Spanish property, and demanding its immediate release.
The District Attorney, on the 19th of September, files, accordingly, his libels, (Record, p. 13,) stating the demand of the Spanish minister, not as it had really been made, but according to the statement of it in his instructions from the Department of State; and he prays the Court that, if the claim of the Spanish minister is well founded and conformable to treaty, the Court should make such order for the disposal of the said vessel, cargo, AND SLAVES, as may best enable the United States, in all respects, to comply with their treaty stipulations, and preserve the public faith inviolate.
But if it should be made to appear that the persons aforesaid, described as slaves are Negroes and persons of color, who have been transported from Africa in violation of the laws of the United States, and brought into these United States contrary to the same laws, he claims that, in such case, the Court shall make such further order as may enable the United States, if deemed expedient, to remove such persons to the coast of Africa, to be delivered there to such agent or agents as may be authorized to receive and provide for them, pursuant to the laws of the United States; or to make such other order as to the court should seem fit, right, and proper in the premises.
Here were three alternatives prayed for—1st. That the vessel, cargo, and blacks, assumed to be slaves, should be so disposed of as to enable the United States to comply with their treaty stipulations, and preserve the public faith inviolate. It was stated that this demand was made at the instance of the Spanish minister, but that was true only of the vessel and cargo, but not of the persons. Of them, he had demanded, by necessary implication, that they should not be restored to their pretended owners, but kept in close custody, and, in defiance of all judicial authority, conveyed to the Havana Govermnentally, that is, by the arbitrary mandate of the President of the United States, to satisfy public vengeance. The Court could not have complied with this alternative of restoring the Negroes, as property, to their owners, but by denying and defying the real demand of the Spanish minister, that they should be sent to Cuba as criminals.
The second alternative was, that the Court should enable the United States to send the Negroes home to Africa, if deemed expedient; and to this the decree of the Court said, soit fait comme il est desire— it as the District Attorney desires. Let the said Africans, in the custody of the Marshal, be delivered to the President of tile United States by the Marshal of the District of Connecticut, to be by him transported to Africa, in pursuance of the law of Congress passed March 3, 1829, entitled " An act in addition to the acts prohibiting the slave trade."
Yet, from this sentence, claimed by the District Attorney, the representative of the Executive Administration before the Court, it is he himself that appeals. Should the Court sustain that apt peal, what judgment could they possibly render? Should they reverse the decision of the District and Circuit Courts, they would indeed determine that these forty persons should not be delivered to the President of the United States, to be sent home to Africa —but what shall the Court decree to be done with them ? Not surely, that they should be delivered up to their pretended owners, for against that the Spanish minister solemnly protests ! He demands not even that they should be delivered up to himself! He demands that it should be declared, that no tribunal in the United States has the right even to institute proceedings against them. Be declared— by whom? He demands of the Executive Administration—(will the Court please to consider what the purport of this demand is?) that the President of the United States should issue n proclamation, that no tribunal of the United States has the right to institute proceedings against the subjects of Spain for crimes committed on board a Spanish vessel, and in the waters of the Spanish territory.
When this demand was made, the Africans of the Amistad were in the custody of a judicial tribunal of the United States, upon proceedings instituted against them as criminals charged with piracy and murder. They were also claimed by two Spaniards as merchandise, their property; and the faith of a treaty was solemnly invoked to sustain the claim that this merchandise, rescued out of the hands of pirates or robbers, (that is to say, out of the hands of itself,) should be taken care of by the officers of the port into which they had been brought, and restored entire to them—Ruiz and Montes—as soon as due and sufficient proof should be made concerning the property thereof.
Now, if no tribunal in the United States had the right to institute proceedings against the subjects of Spain for crimes committed on board a Spanish vessel and in the waters of the Spanish territory, how could the Court know that these same Spanish subjects were, at the same time, the merchandise rescued out of the hands of pirates and robbers and the pirates or robbers out of whose hands the merchandise was rescued? How could the Court know that they were subjects of Spain—that they were pirates or robbers—or that they were merchandise—if the Court had no right to institute proceedings against them ?
The very phraseology of the 9th article of the treaty with Spain proves, that it was not and could not be intended to include persons under the denomination of merchandise, of what nature soever, for it provides that the merchandise shall be delivered to the custody of the officers of the port, in order to be taken care of and restored entire to the true proprietor. Now, this provision, that the merchandise shall be restored entire, is absurd if applied to human beings, and the use of the word conclusively proves that the thought and intention of the parties could not be construed to extend to human beings. A stipulation to restore human beings entire might suit two nations of cannibals, but would be absurd, and worse than absurd, between civilized and Christian nations. Again, the article provides that the rescued merchandise shall be delivered to the custody of the officers of the port into which it is brought, in order to be taken care of; but, by what Constitution or law of the United States, or of Connecticut, could the officers of the port of hew London receive into their custody, and take care of, the Africans of the Amistad?
The demand of the Spanish minister, Calderon, was, that the President of the United States should first turn man robber; rescue from the custody of the Court, to which they had been committed, those forty odd Africans, males and females, adults and children; next turn jailer, and keep them in his close custody, to prevent their evasion; and lastly, turn catchpoll and convey them to the Havana, to appease the public vengeance of the African slave traders of the barracoons.
Is it possible to speak of this demand in language of decency and moderation? Is there a law of Habeas Corpus in the land? Has the expunging process of black lines passed upon these two Declarations of Independence in their gilded frames? Has the 4th of July, '76, become a day of ignominy and reproach? Is there a member of this Honorable Court of age to remember the indignation raised against a former President of the United States for causing to be delivered up, according to express treaty stipulation, by regular judicial process, a British sailor, for murder on board of a British frigate on the high seas? At least, all your Honors remember the case of the Bambers? You all remember your own recent decision in the case of Dr. Holmes ? And is it for this Court to sanction such monstrous usurpation and Executive tyranny as this at the demand of a Spanish minister? And can you hear, with judicial calmness and composure, this demand of despotism, countenanced and supported by all the Executive authorities of the United States, though not yet daring to carry it into execution?
The third alternative prayed for in the name and behalf of the United States in the libel of the 19th of September, 1839, is, that the court should make such other order in the premises as it should think fit, right, and proper.
To this expedient it was necessary for the court to resort. The court did not know—it could not know that the demand of the Spanish Minister, Calderon, was not only widely different from that which the libel of the District Attorney represented it to be, but absolutely incompatible with it. The court took it for granted that the statement in the libels, at least so far as concerned the demand of the Spanish Minister, was true—and so far as respected the only Ladino on board the Amistad, the boy Antonio, did accede to the supposed demand of the Minister—did actually admit the treaty stipulation as applicable to him—and did decree that he should be restored to the legal representatives of his deceased master. The judge of the District Court relieved Antonio from his right of appeal— from that decision by stating that Antonio himself desired to be restored to his widowed mistress. But as the whole decree was the result of a deception practiced upon the court, and as in that part of it relating to Antonio, are involved principles of the deepest interest to human freedom, and to the liberties of my country, I will only express my most earnest hope, with profound respect for the court, that that portion of its decision will never tee adduced as authority for the surrender of any other individual situated as Antonio was on that trial.
And here I must avail myself of the occasion to state my objections to the admission of the case of the Antelope as an authoritative precedent in this or any other court of the United States— I had almost said for any thing, certainly for the right of the court itself to deliver up to slavery any human individual at the demand of any diplomatic or consular agent of any foreign power. And that I may be enabled to set forth at large, my reasons for resisting the application of that case as precedent or authority for the settlement of any principle now under the consideration of the Court, I must ask the permission of the Court to review the case of the Antelope itself, as it appears on the face of the Reports.
[See the review of the case of the Antelope, at the close of the argument.]
And this declaration of the Spanish minister not only contradicts it, but shows that it was impossible any such demand should have been made. "For, let it be remembered," he says, "that the Spanish legation demands not slaves but assassins." No despotism could comply with both demands, had they been made, but the Spanish Minister explicitly declares that only one demand was made by the legation, and that not the one affirmed by the Secretary of State—not property but assassins—not for the benefit of individuals, but to satisfy "public vengeance." There is something follows in the letter about " fanaticism," which I will not read to the Court, for reasons that will be obvious. Indeed, I do not know as I understand it, and it is possible that I have indulged, or may indulge in what, in certain dialects, may be called "fanaticism," myself. The Chevalier proceeds to reason:
"Thus it appears that a court of one of the States of the confederacy has assumed the direction of an affair over which it has no jurisdiction; that there can be no law, either anterior or posterior to the treaty, upon which a legal sentence can be based; that this court, by the repeated delays which it orders, contributes to delay the satisfaction demanded by public justice; and that, in consequence, the affair should only be determined by reference to international right, and, therefore, by the exercise of the power of the government, (gubernativamente ;) that, for its determination, the treaty exists to which Spain appeals; that, from the delay on this determination have proceeded injuries requiring indemnification, to demand which the undersigned reserves his right for a future occasion. The undersigned may, without indiscretion, declare that this must be the opinion of the cabinet, which, possessing already the necessary and even indispensable powers, may immediately act (gubernativamente) in this matter, in virtue of the actual state of the law, and without awaiting the decision of any court. Not to do so may give rise to very complicated explanations with regard to reciprocity in the execution and fulfillment of treaties."
Here it is. " Gubernativamente," again; that is the idea which was in the mind of the Spanish minister all the while, gubernativamente. That is what he was insisting on, that was the demand which the Secretary of State never repelled as he ought, by telling Mr. Argaiz that it was not only inadmissible under our form of government, but would be offensive if repeated. But where will your Honors find any thing like a demand for property' under the treaty, and by the decision of a court of the United States? He says, if the Executive does not at once act gubernativamente, and take the case out of the judiciary, and send these people to Cuba. it "may give rise to complicated explanations with regard to reciprocity in the execution and fulfillment of treaties.)" Is that language for a foreign minister to use to the American Secretary of State, and not to be answered. He then says:
"The undersigned flatters himself with the hope that his Excellency the President will take into his high consideration this communication, to which the undersigned hopes for a speedy answer, as a new proof of the scrupulousness and respect with which this nation fulfills the treaties existing with other nations. If, contrary to this hope, the decision should not be such as the undersigned asks, he can only declare the General Government of the Union responsible for all and every consequence which the delay may produce.''
There is the language used by the representative of her Catholic Majesty to the Secretary of State of the United States, and to which the Secretary never thought it necessary to make a suitable reply. There is another correspondence published among the documents of the present session of Congress, connected too with this very case, which shows that the Secretary knows how to be very sensitive with regard to any thing that looks like foreign interference with the action of our courts and government. It is in his answer to Mr. Fox the British ambassador, who addressed a letter to Mr. Forsyth, January 20th, 1841, saying he had been instructed to represent to the President that the attention of his government " has been seriously directed to the case" of these Africans, and in consequence of the treaty between Great Britain and Spain, in which the former paid a valuable consideration for the abandonment of the trade, it is "moved to take a special and peculiar interest in the fate of these unfortunate Africans." And he says:
"Now the unfortunate Africans, whose case is the subject of the present representation, have been thrown by accidental circumstances into the hands of the authorities of the United States; and it may probably depend upon the action of the United States Government, whether these persons shall recover the freedom to which they are entitled, or whether they shall be reduced to slavery, in violation of the known laws and contracts publicly passed, prohibiting the continuance of the African slave trade by Spanish subjects.
"It is under these circumstances that Her Majesty's Government anxiously hope that the President of the United States will find himself empowered to take such measures in behalf of the aforesaid Africans as shall secure to them the possession of their liberty, to which, without doubt, they are by law entitled."
The Secretary of State, in his reply, consents to receive the communication, " as an evidence of the benevolence of her Majesty's Government, under which aspect alone," he says, " it could be entertained by the Government of the United States." What a different tone is here! Mr. Fux merely referred to the relations of his own government with that of Spain, and to the 10th article of the treaty of Ghent, between Great Britain and the United States, in which both nations bound themselves " to use their best endeavors for the entire abolition of the African slave trade." His letter was courteously worded throughout. It casts no imputations upon any branch of our government, it pronounces no part of it incompetent to its functions, it asks no unconstitutional and despotic interference of the Executive with the judiciary gubernativamente, but simply, announces the interest his government feels in the case, and its "anxious hope that the President of the United States will find himself empowered to take such measures in behalf of the aforesaid Africans as shall secure to them their liberty, to which," he says, "without doubt, they are by law entitled." To this the Secretary of State replies:
" Viewing this communication as an evidence of the benevolence of her Majesty's Government—under which aspect alone it could be entertained by the Government of the United States— I proceed, by direction of the President, to make, in reply, a few observations suggested by the topics of your letter. The narrative presented therein, of the circumstances which brought these Negroes to our shores, is satisfactory evidence that her Majesty's Government is aware that their introduction did not proceed from the wishes or direction of the Government of the United States. A formal demand having been made by the Spanish minister for the delivery of the vessel and property, including the Negroes on board, the grounds upon which it is based have become the subject of investigation before the judicial tribunals of the country, which have not yet pronounced their final decision thereupon You must be aware, sir, that the Executive has neither the power nor the disposition to control the proceedings of the local tribunals when acting within their own appropriate jurisdiction."
How sensitive the Secretary is now! How quick to perceive an impropriety! How slave to the honor of the country—much more so, indeed, than the case required. How different his course from that pursued toward the Spanish minister, who had been from the beginning to the end pressing upon our government demands the most inadmissible, the most unexampled, the most offensive, and yet received from the Secretary no answer, but either a prompt compliance with his requirements, or a plain demonstration of regret that compliance was impracticable. Not one attempt do we find by the Secretary to vindicate the honor of the country, or to press the Spanish minister to bring forward his warrant for such unexampled, such humiliating demands. Neither does he intimate in the case of the Spanish claim, that it i8 received on the ground of "benevolence." Indeed he could not very well offer that as an apology. Benevolence ! The burning of these forty Africans at the stake, as the result of a compliance by our Executive with the Spanish demand, would hardly tend to exhibit or inspire " benevolence."—No, it was for vengeance that they were demanded, admitted to be so in this very letter.
In the same letter the Secretary of State does not undertake to controvert the principles set forth by Mr. Calderon, nor the arguments urged by Mr. Argaiz; but repeats that they had been submitted to the President for consideration. And that is all the answer ever given to the Spanish legation. He then refers to various personal conversations with the minister of Spain.
It was hoped that, in the various conversations which have since taken place with the Chevalier d'Argaiz at this department, on the same subject, he would have discovered additional evidence of the desire of the United States Government to do justice to the demand and representation addressed to it in the name of that of Spain, as fully and as promptly as the peculiar character of the claim admitted. From the repeated communications of the Chevalier d'Argaiz, pressing for the disposal of the question; from his reiterated over of suggestions as to the course by which he deems it incumbent upon this Government to arrive at a final decision; and from the arguments in support of those suggestions, which the undersigned does not perceive the utility of combating at the present stage of the transaction.
The Secretary makes no pretension to contest the claims of Spain—not even a suggestion of the idea that these claims are inadmissible, or that, if pressed, they would be offensive. In these conversations, many things may hare been said which perhaps it would not have been deemed compatible with the public interest to make public. I shall justify this intimation before I am through with this remarkable correspondence. But it is evident there was no resistance of the claims in question as to their justice, no examination of their principles. The Secretary says he does not perceive the utility of combating any of these demands or allegations, and he refers to these private conversations as evidence that the Government is perfectly disposed to do all that is demanded. He continues by saying—
" The Government of the United States cannot but perceive with regret that the Chevalier d'Argaiz has not formed an accurate conception of the true character of the question, nor of the rules by which, under the constitutional institutions of the country, the examination of it must be conducted; nor a correct appreciation of the friendly disposition toward Her Catholic Majesty's Government, with which that examination was so promptly entered upon. In connection with one of the points in the Chevalier d'Argaiz's last note, the undersigned will assure him, that whatever be, in the end, the disposal of the question, it will be in consequence of a decision emanating from no other source than the Government of the United States; and that, if the agency of the judicial authority shall have been employed in conducting the investigation of the case, it is because the judiciary is, by the organic law of the land, a portion, though an independent one, of that Government."
That is to say, so it is, and we can't help it, the judiciary is independent, it must have its course, and we cannot help it. He proceeds:
" As to the delay which has already attended, and still may attend, a final decision, and which the Chevalier d'Argaiz considers as a legitimate subject of complaint, it arises from causes which the undersigned believes that it would serve no useful purpose to discuss at this time, farther than to say that they are beyond the control of this department, and that it is not apprehended that they will affect the course which the Government of the United States may think it fit ultimately to adopt."
The Spanish minister is here given to understand, in his ear, that care had been taken to prevent the Africans from being placed beyond the control of the Executive, and therefore he need be under no apprehension that the decision of the courts, whatever it may be, " will affect the course which the Government of the United States may think it fit ultimately to adopt." What other construction can possibly he given to this paragraph? If any other is possible from the words there are facts in the case which prove that this was what was intended. The Secretary proceeds with his explanations and apologies.
" The undersigned indulges the hope that, upon a review of the circumstances of the case, and the questions it involves, the Chevalier d'Argaiz will agree with him in thinking that the delay which has already occurred is not more than commensurate with the importance of those questions; that such delay is not uncommon in the proceedings and deliberations of governments desirous of taking equal justice as the guide of their actions; and that the caution which it has been found necessary to observe in the instance under consideration, is yet far from having occasioned such procrastination as it has been the lot of the United States frequently to encounter in their intercourse with the Government of Spain."
"With regard to the imprisonment of Don Jose Ruiz, it is again the misfortune of this Government to have been entirely misapprehended by the Chevalier d'Argaiz, in the agency it has had in this, an entirely private concern of a Spanish subject. It was no more the intention of this department, in what has already been done, to draw the Chevalier d'Argaiz into a polemical discussion with the Attorney of the United States for the district of New York, than to supply Don Jose Ruiz, gratis, with counsel in the suit in which he had been made a party. The offer made to that person of the advice and assistance of the District Attorney, was a favor— an entirely gratuitous one—since it was not the province of the United States to interfere in a private litigation between subjects of a foreign state, for which Mr. Ruiz is indebted to the desire of this government to treat with due respect the application made in his behalf in the name of her Catholic Majesty, and not to any right he ever had to be protected against alleged demands of individuals against him or his property."
Here, then, it is avowed that the Executive government of this nation had interposed in a suit between two parties, by extending a favor entirely gratuitous to one of the parties, who, it is at the same time admitted, had no claim whatever to this gratuitous aid. And then comes the exhibition which I have already read, of the national sympathy, in which all the authorities of the country are alleged to have participated, and the assumption, under which all the proceedings have been carried on, that there was but one party aggrieved in the case, and that party was the Spanish slave traders.
On the 25th of December the Chevalier d'Argaiz addressed a long letter to the Secretary of State, in which he acknowledges the receipt of the last letter, to which " it would be superfluous" —the word is ocioso, idle—to reply, inasmuch as the Secretary of State does not seem to have considered it requisite in the present situation of the affair, to combat the arguments adduced by the undersigned. The delicacy of the undersigned does not, however, allow him to pass over (desoir) certain insinuations (remarks) contained in the said note; and it will, perhaps, be difficult for him to avoid adducing some new argument in support of his demands."
The Secretary had never met these claims and arguments, as it was his duty to do, nod the Spanish minister is continually reminding him that he does not answer his arguments. He then refers him to his own course, and says, "The undersigned would not have troubled the Government of the Union with his urgent demand, if the two Spaniards (who, as the Secretary of State, in his note of the 12th, says, 'were found in this distressing and perilous situation by officers of the United States, who, moved by sympathetic feelings, which subsequently became national,') had not been the victims of an intrigue, as accurately shown by Mr. Forsyth, in the conference which he had with the undersigned on the 21st of October last."
He here refers to a private conference in which the Secretary of State had accurately shown that the two Spaniards in New York were the "victims of an intrigue." The Secretary of State of the United States, then, had confidentially and officially informed the Spanish minister that the two Spaniards, in being arrested at the suit of some of these Africans, were the victims of an intrigue." What the Secretary meant by " victims of an intrigue, "is not for me to say. These Spaniards had been sued in the courts of the state of New York by some of my clients, for alleged wrongs done to them on the high seas—for cruelty, in fact, so dreadful, that many of their number had actually perished under the treatment 'These suite were commenced by lawyers of New York—men of character in their profession. Possibly they advised with a few other individuals—fanatics, perhaps, I must call them, according to the general application of language, but if I were to speak my own language in my own estimate of their character, so far as concerns this case, and confining my remarks exclusively to this present case, I should pronounce them the FRIENDS OF HUMAN NATURE—men who were unable to see these, their fellow men, in the condition of these unfortunate Africans, seized, imprisoned, helpless, friendless, without language to complain, without knowledge to understand their situation or the means of deliverance—I say they could not see human beings in this condition and not undertake to save them from slavery and death, if it was in their power—not by a violation of the laws, but by securing the execution of the laws in their favor. These are the men whom the American Secretary of State arraigns in a confidential conversation with the minister of Spain, as the instigators of "an intrigue" of which he holds these disappointed slave holders to be the unfortunate victims. The Chevalier goes on:
"The Secretary of State, however, says that 'he cannot but perceive with regret that the Chevalier d'Argaiz has not formed an accurate conception of the true character of the question, nor of the rules by which, under the constitutional institutions of this country, the examination of it must be conducted.' Possibly the undersigned may not have formed such an accurate conception, of this affair, since it has been carried within the circle of legal subtleties, as he has not pursued the profession of the law; but he is well persuaded that, if the crew of the Amistad had been composed of white men, the court, or the corporation to which the Government of the Union might have submitted the examination of the question, would have observed the rules by which it should be conducted under the constitutional institutions of the country, and would have limited itself to the ascertainment of the facts of the murders committed on the 30th of June; and the undersigned does not comprehend the privilege enjoyed by Negroes, in favor of whom an interminable suit is commenced, in which everything is deposed by every person who pleases; and, for that object, an English doctor, who accuses the Spanish government of not complying with its treaties, and calumniates the Captain General of the island of Cuba, by charging him with bribery."
Here it is made the subject of complaint from a foreign ambassador to the Executive Government of the United States, that in a court of the United States, in a trial for the life and liberty of forty human beings, the testimony, of "an English doctor" was received. And this complaint also was received without a reply. The "English doctor," thus spoken of, was Doctor Madden, a man of letters, and in the official employ of the British Government, in a post of much importance and responsibility, as the superintendent of liberated Africans at Havana. His testimony was highly important in the case and was admitted in the court below, and now forms a part of the record now before your Honors. He does not use the word bribery in reference to the Governor General of Cuba.
DEATH OF JUDGE BARBOUR—THE PROCEEDINGs OF THE COURT SUSPENDED.
Washington, Feb. 25, 1841.
The proceedings of the Court in this solemn case have been interrupted by the solemn voice of death. One of the learned and honorable judges of the Court, who sat yesterday in his place, listening with profound and patient attention to the argument of a counselor many years older than himself, reasoning eloquently in behalf of justice on earth, has been summoned to his own dread account, at the bar of Eternal Justice above. Judge Barbour, of Virginia, the seventh in rank on the bench, died last night in his bed—in his sleep, it is probable, without a groan or a struggle. The servant at his lodgings went at the usual hour this morning to the rooms of the different Judges, to call them to breakfast. 4s the Chief Justice was passing the door of Judge Barbour's room, the man said to him, "Chief Justice, will you please to come here, sir—I think Judge Barbour is dead." Judge Taney went to the bed, and there saw his associate lying on his side, as if in a gentle sleep, but dead and cold, with the exception of a slight remaining warmth at the chest. Not a muscle was distorted, nor were the bed clothes in the slightest degree disturbed, so that it is probable his heart ceased to beat in an instant, while he was asleep!
At the usual hour for opening the Court this morning, none of the Judges were seen in the court room, which was already filled with persons come to hear the continuation of Mr. Adams' speech.
At length the Judges came in together, and their countenances looked pale, distressed, and sorrowful. As soon as they had taken their seats, the Crier opened the Court in the usual form, and the Chief Justice addressed the gentlemen of the bar—"Gentlemen a painful event has occurred—Judge Barbour died suddenly last night—and the Court is therefore adjourned until Monday."
The Crier then made proclamation to that effect, the Judges all rose, and retired again to their private apartment, and the assembly withdrew.
I did not expect an announcement of so overwhelming a Providence in a manner so severely simple and subdued, but it struck me as eminently appropriate for the Supreme Court of this nation. It was in keeping with the strictest propriety and suitableness. It was sublime.
RESUMPT10N OF THE TRIAL.
Washington March 1, 1841.
On the re opening of the Court, the Attorney General of the United States, H. D. Gilpin, Esq. 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 of officers of the court, and which he moved to have entered on the records of the court. The Chief Justice responded in a short address, and concluded with ordering the resolutions to be entered on the records. Mr. Adams then resumed his argument, as follows:—
May it please your Honors,
The melancholy event which has occurred since the argument of this case was begun, and which has suspended for a time the operations of the Court itself, and which I ask permission to say that I give my cordial, and painful concurrence in the sentiments of the Bar of this Court—has imposed on me the necessity of re stating the basis and aim of the argument which I am submitting to the Court, in behalf of the large number of individuals, who are my unfortunate clients.
I said that my confidence in a favorable result to this trial rested mainly on the ground that I was now speaking before a Court of JUSTICE. And in moving the dismissal of the appeal taken on behalf of the United States, it became my duty, and was my object to show, by an investigation of all the correspondence of the Executive in regard to the case that JUSTICE had not been the motive of its proceedings, but that they had been prompted by sympathy with one of the two patties and against the other. In support of this, I must scrutinize, with the utmost severity every part of the proceedings of the Executive Government. And in doing it, I think it proper for me to repeat, that in speaking of the impulse of sympathies, under which the government acted, I do not wish to be understood to speak of that sympathy as being blamable in itself, or as inducing me to feel unfriendly sentiments towards the Head of the Government, or the Secretary of State, or any of the Cabinet. I feel no unkind sentiments towards any of these gentlemen. With all of them, I am, in the private relations of life, on terms of intercourse, of the most friendly character. As to our political differences, let them pass for what they are worth, here they are nothing. At the moment of the expiration of this administration, I feel extreme reluctance at the duty of bringing its conduct before the court in this manner, as affecting the claims of my clients to JUSTICE. My learned friend, the Attorney General, knows that I am not voluntary in this work. I here descended to personal solicitation with the Executive, that by the withdrawal of the appeal, l might be spared the necessity of appearing in this cause. I have been of the opinion that the case of my clients was so clear, so just, so righteous, that the Executive would do well to cease its prosecution, and leave the matter as it was decided by the District Court, and allow the appeal to be dismissed. But I did not succeed, and now I cannot do justice to my clients, whose lives and liberties depend on the decision of this Court—however painful it may be, to myself or others.
In my examination of the first proceedings of the Executive in this case, I did scrutinize and analyze most minutely and particularly, the four demands first made upon our government by the late Spanish minister, Mr. Calderon, in his letter to the Secretary of State of Sept. 5, 1839. I tested the principles there laid down, both by the laws of nations and by the treaties between the two Nations to which he had appealed. And I showed that every one of these demands was inadmissible, and that every principle of law and every article of the treaty, he had referred to, was utterly inapplicable. At the close of my argument the other day, I was commenting upon the complaint of the present minister, the Chevelier d'Argaiz, addressed to the Secretary of State on the 25th of December, 1839, in relation to the injustice he alledges to have been done to the two Spanish subjects, Ruiz and Montes, by their arrest and imprisonment in New York, at the suit of some of the Africans. He says he "does not comprehend the privilege enjoyed by Negroes, in favor of whom an interminable suit is commenced, in which everything is deposed by every person who pleases; and, for that object, an English doctor who accuses the Spanish Government of not complying with its treaties, and calumniates the Captain General of the island of Cuba, by charging him with bribery."
This English Doctor is Dr. Madden, whose testimony is given in the record. He certainly does not charge the Captain General with bribery, although he says that both he and the other authorities of Cuba are in the habit of winking or conniving at the slave trade. That this is the actual state of affairs, I submit to the Court, is a matter of history. And I call the attention of the Court to this fact, as one of the most important points of this case. It is universally known that the trade is actually carried on, contrary to the laws of. Spain, but by the general connivance of the Governor General and all the authorities and the people of the island. The case of this very vessel, the visit of Ruiz and Montes to the barracoon in which these people were confined, the vessel in which they were brought from Africa, are all matters of history. I have a document which was communicated by the British government to the Parliament, which narrates the whole transaction. Mr. A. here read from the Parliamentary documents, a letter from Mr. Jerningham, the British Minister at Madrid, to the Spanish Secretary of State, dated January 5th, 1840, describing the voyage of the Tecora from Africa, the purchase of these Africans who were brought in her, with the subsequent occurrences, and urging the Spanish Government to take measures both for their liberation, and to enforce the laws of Spain against Ruiz and Montes.
He says " I have consequently been instructed by my government to call upon the government of her Catholic Majesty to issue, with as little delay as possible, strict orders to the authorities of Cuba, that, if the request of the Spanish minister at Washington be complied with, these Negroes may be put in possession of the liberty of which they were deprived, and to the recovery of which they have an undeniable title.
"I am further directed to express the just expectations
of Her Majesty's government that the Government of her
Catholic Majesty will cause the laws against the slave trade to be
enforced against Messrs. Jose Ruiz and Pedro Montes, who
purchased these newly imported negroes, and against all such
other Spanish subjects as have been concerned in this nefarious
transaction."
These facts, said Mr. A., must be we]l known to the Spanish minister. If he complains of injustice in the charge of general connivance made by Dr. Madden why has he not undertaken to prove that it is a calumny? Not the slightest attempt has been made to bring forward any evidence on this point, for the very plain reason that there could be none. The fact of the slave trade is too notorious to be questioned. I will read, said he, from another high authority, a book filled with valuable and authentic information on the subject of the slave trade' written by one of the most distinguished philanthropists of Great Britain, Sir Thomas Fowel1 Buxton. Mr. A. then read as follows:—
"It is scarcely practicable to ascertain the number of slaves imported into Cuba: it can only be a calculation on, at best, doubtful data. We are continually told by the Commissioners, that difficulties are thrown in the way of obtaining correct information in regard to the slave trade in that island. Everything that artifice, violence, intimidation, popular countenance, and official connivance can do, is done, to conceal the extent of the traffic. Our ambassador, Mr. Villiers, April, 1837, says, 'That a privilege (that of entering the harbor after dark) denied to all other vessels, is granted to the slave trader; and, in short, that with the servants of the Government, the misconduct of the persons concerned in this trade finds favor and protection. The crews of captured vessels are permitted to purchase their liberation; and it would seem that the persons concerned in this trade have resolved upon setting the government of the mother country at defiance.' Almost the only specific fact which I can collect from the reports of the Commissioners, is the statement 'that 1835 presents a number of slave vessels (arriving at the Havana) by which there must have been landed, at the very least, 15,000 Negroes.' But in an official letter, date 28th May, 1836, there is the following remarkable passage: 'I wish I could add, that this list contains even one fourth of the number of those which have entered after having landed cargoes, or sailed after having refitted in this harbor.' This would give an amount of 69,000 for the Havana alone; but is Havana the only port in Cuba in which Negroes are landed? The reverse is notoriously true. The Commissioner says, 'I have every reason to believe that several of the other ports of Cuba, more particularly the distant city of St. Jago de Cuba, carry on the traffic to a considerable extent.' Indeed, it is stated by Mr. Hardy, the consul at St. Jago, in a letter to Lord Palmerston, of the 18th February, 1837, 'That the Portuguese brig Boca Negra, landed on the 6th inst. at Juragua, a little to windward of this port, (St. Jago,) 400 Africans of all ages, and subsequently entered this port.' But in order that we may be assuredly within the mark, no claim shall be made on account of these distant ports. Confining ourselves to the Havana, it would seem probable, if it be not demonstrated, that the number for that port, a fortiori, for the whole island, may fairly be estimated at 60,000."
This evidence is important to show what is the real value of this certificate of the Governor General. There is one other proof which I will read to the court, and leave it to your Honors to judge of its bearing, and of the conclusion to which it arrives It is the statement of the Spanish vice consul, Mr. Vega.
"The following statement was made to me by A. G. Vega, Esq., Spanish consul, as near as l can now recollect, and according to my best knowledge and belief, l0th January, 1840.
W. S. HOLABIRD.
"That he is a Spanish subject; that he resided in the Island of Cuba several years; that he knows the laws of that island on the subject of slavery; that there was no law that was considered in force in the Island of Cuba, that prohibited the bringing in African slaves; that the court of mixed commissioners had no jurisdiction except in case of capture on the sea; that newly imported African Negroes were constantly brought to the island, and after landing were bona fide transferred from one owner to another, without any interference by the focal authorities or the mixed commission? and were held by the owners and recognized as lawful property; that slavery was recognized in Cuba by all the laws that were considered in force there; that the native language of the slaves was kept up on some plantations for years. That the barracoons are public markets, where all descriptions of slaves are sold and bought; that the papers of the Amistad are genuine, and are in the usual form; that it was riot necessary to practice any fraud to obtain such papers from the proper officers of the government; that none of the papers of the Amistad are signed by Martinez, spoken of by R. R. Madden, in his deposition; that he (Martinez) did not hold the office from whence that paper issued."
This is the statement given to the District Attorney by Mr. Yega, and by him made a part of this case. This Spanish functionary declares positively, that he knows there is no law in force in Cuba against the African slave trade, and that recent Africans are held and sold bona fide as slaves. It is conclusive to prove this fact, that the illegal importation and purchase of Africans is openly practiced in Cuba, although it is contrary to the laws of Spain, but those laws are not considered in force, that is, the violation of them is constantly connived at by the authorities.
It may not be universally known, but is doubtless known to members of this court, that there is a volume of correspondence
this subject, by our consul at Havana, which will be communicated to Congress for publication in a few days, and I can state from my personal knowledge that it confirms every word of Mr. Madden's statements on this point, and will show how much reliance is to be placed on this certificate of the Governor General.
But I will return to the letter of the Chevalier d'Argaiz. I have not the honor of knowing this gentleman personally, as I knew his predecessor, but I certainly entertain no feeling of unkindness towards him. And in examining his correspondence, al. though it is my duty to show that his demands are utterly inadmissible and unprecedented, yet it must be admitted that his sympathy and partiality for his own countrymen are at least natural; and if his zeal and earnestness are somewhat excessive, they are at least pardonable. There is in this letter, I must say, a simplicity, what the French call bonhommie, which gives me a favorable impression of his character, and l certainly feel the farthest possible from a disposition to pass any censure on him. I repeat that, so far as this sympathy is concerned, if it is not entirely excusable, it is much more reasonable than it is in some others who have not the same interests to defend. He goes on to express his pleasure at the assurance received from, the Secretary, that " whatever may be the final settlement of the question, it will be in consequence of a decision emanating from the government, and not from any other source ;" and he adds, that " he doubts not such decision will be conformable with the opinion which was confidentially communicated to him at the Department of State on the 19th of November, as founded on that of a learned lawyer, and which he was assured had been adopted by the cabinet."
I take it for granted that the opinion referred to is the opinion of the Attorney General of that time, Mr. Grundy, contained in the Congressional document.. It will be necessary for me to examine that document before I close, as well as the other papers, and I wish to say that the decease of that gentleman, under the circumstances in which it occurred, has made such an impression on my mind, as could not have but disarmed me of any disposition to censure him, if I had before entertained it. It will be a painful duty to me to examine, as I must, with the utmost severity, that document. And I shall show that it is such, that neither the courts nor the cabinet ought ever to have acted on it.
In another part of his letter, M. d'Argaiz says of Ruiz and Montes, that they were not exempted from the persecutions of an atrocious intrigue, and the undersigned Is not the first who has so styled this persecution.' This is a pretty plain intimation that the American Secretary of State was the first who called the suit of my clients for legal redress " an atrocious intrigue," in his " confidential conversation" with the Spanish minister. This is followed by an idea so novel and ingenious that it is necessary to repeat the whole of it. After complaining that Negroes should be allowed to be complainants, he goes on to argue that they ought to be considered, "morally and legally, as not being in the United States," and of course, if they should be delivered up physically, I suppose it was to be inferred that the Executive would not incur any responsibility.
"They are morally and legally not in the United States, because the court of Connecticut has not declared whether or not it is competent to try them. If it should declare itself incompetent, it declares that they are under the cover of the Spanish flag; and, in that case, they are physically under the protection of a friendly government, but morally and legally out of the territory and jurisdiction of the United States; and, so long as a doubt remains on this subject, no judge can admit the complaint. If this argument be of any value to the Secretary of State of the Government of the Union, the undersigned entreats him to prevail on the President to cause a protest, founded on this argument, to be officially addressed to the court of New York."
His predecessor, M. Calderon, called upon the President for a proclamation forbidding the courts to take up the case, and the present minister of Spain insists that he shall send forth his protest to take it out of the hands of the courts—and this on the ground, that my clients, although personally imprisoned for eighteen months by the U.S. Marshal, under order of the U. S. Court, yet are "not morally and legally in the United States." There is another argument of the same gentleman, very much of the same character. The court will find it in his first letter after the arrest of Ruiz and Montes at New York. He says:
"It would be easy to demonstrate the illegality of these arrests, the orders for which have possibly been obtained from the attorney by surprise: as it would also be easy to show the ignorance of the declarant, Tappan, in declaring that Ruiz is known by the name of Pipi, whereas he would have been known and distinguished throughout Spain, as all other Joses are, by the diminutive of Pepe, and thus it appears that a Pepe has been imprisoned instead of a Pipi, which I believe the law does not permit."
The argument is certainly ingenious, and if it is sound at all, it is worth more in favor of the Africans than of the Spaniards, as I may hereafter have occasion to show, when I come to consider the case of nine and forty persons with Spanish names, who have been arrested and brought into court by African names.
The Chevalier d'Argaiz, in the close of this letter, exhibits his loyalty towards the then acting sovereign of his nation.
" At the moment when the heart of the august Queen Governess is filled with delight on account of the termination of a civil war, and the assurance of the throne of her august daughter, her minister in the United States has to perform the painful duty of diminishing her happiness by communicating to her, as he did by letter on the 19th instant, the disagreeable event which forms the subject of this communication, The desire of calming the disquiet which this news may occasion in the mind of her Majesty, together with that of alleviating the lot of the two prisoners, urge the undersigned to entreat you, Mr. Secretary of State, to take into consideration what he has here set forth, and to afford him the means, in a prompt reply, of satisfying those just desires, which will be completely done if he is able to transmit such a reply to his Government by the packet sailing for Havre on the 1st of November next."
It must doubtless, said Mr. A., be some consolation to this loyal minister, to reflect that before the august Queen Governess could have received the painful intelligence of the imprisonment of two such meritorious subjects as Ruiz and Montes to diminish her happiness her heart had been gratified in a much better manner. In the pursuit of that happiness for which she longed, it seems that she retired altogether from the cares of state, into the comforts of domestic life, with a husband that, I hope has calmed her disquiet, and if it should ultimately turn out that the lives of these poor Africans are saved, there will be no further occasion to diminish the happiness of the august Queen Governess.
On the 30th of December, five days after the date of the letter I have been commenting upon, the Chevalier d'Argaiz wrote again to the Secretary of State.
(WASHINGTON, December 30, 1839.)
"SIR—In the conversation which I had with you on the morning of the day before yesterday, you mentioned the possibility that the Court of Connecticut might, at its meeting on the 7th of January next, declare itself incompetent, or order the restitution of the schooner Amistad, with her cargo, and the Negroes found on board of her; and you then showed me that it would be necessary for the legation of her Catholic Majesty to take charge of them as soon as the Court should have pronounced its sentence or resolution; and, although I had the honor to state to you that this legation could not possibly transfer the said Negroes to Havana, still it appears proper for me now to declare that—
" Considering that the schooner Amistad cannot make a voyage, on account of the bad condition in which she is, of her being entirely without a crew:
"Considering that it would be difficult to find u vessel of the United States willing to take charge of these Negroes, and to transport them to Havana; and, also, that these Negroes have declared before the Court of Connecticut that they are not slaves; and that the best means of testing the truth of their allegation is to bring them before the Courts of Havana:
" Being at the same time desirous to free the Government of the United States from the trouble of keeping the said Negroes in prison, I venture to request you to prevail upon the President to allow to the Government of her Catholic Majesty the assistance which it asks under the present circumstances from that of the United States, by placing the Negroes found on board of the said schooner, and claimed by this legation, at the disposition of the Captain General of the Island of Cuba, transporting them thither in a ship belonging to the United States. Her Catholic Majesty's Government, I venture to assert, will receive this act of generosity as a most particular favor, which would serve to strengthen the bonds of good and reciprocal friendship now happily reigning between the two nations."
Here is no longer a demand for the delivery of slaves to their owners, nor for the surrender of the Africans to the Spanish minister as assassins, but an application to the President of the United States to transport forty individuals beyond the seas, to be tried for their lives. Is there a member of this Honorable Court that ever heard of such a demand made by a foreign minister on any government? Is there in the whole history of Europe an instance of such a demand made upon an independent government? I have never in the whole course of my life, in modern or ancient history, met with such a demand by one government on another. Or, if such a demand was ever made, it was when the nation on which it was made was not in the condition of an independent power.
What was this demand? It was that the Executive of the United States, on his own authority, without evidence, without warrant of law, should seize, put on board a national armed ship, and send beyond seas, forty men, to be tried for their lives. I ask the learned Attorney General in his argument on this point of the case, to show what is to be the bearing of this proceeding on the liberties of the people. I ask him to tell us what authority there is for such an exercise of power by the Executive. I ask him if there is any authority for such a proceeding in the case of these unfortunate Africans, which would not be equally available, if any President thought proper to exercise it, to seize and send off forty citizens of the United States. Will he vindicate such an authority? Will this Court give it a judicial sanction ?
But, may it please your Honors, what was the occasion, the cause, the motive, which induced the Secretary of State to hold this personal communication with the Spanish minister on the 28th of December ? What had occurred, to induce the Secretary of State to send for the Chevalier d'Argaiz, and tell him that the court of Connecticut was about to pass a decree that these Africans should be delivered up, and that our government would be ready to deliver them to him! What induced the Secretary of State to come to the conclusion that there was any sort of probability that the Court of Connecticut would so adjudge? The documents do not inform us at whose suggestion or by what information the Secretary of State acted in this remarkable manner. We are left to infer, that his course was founded, probably, on the opinion of the late Attorney General, with a suggestion from the District Attorney' of Connecticut. I refer to a letter of the Secretary of State to Mr. Holabird, January 6, 1840, in connection with this letter of the Spanish minister, of December 30. The Secretary says—" Your letter of the 20th ultimo," that is, the 20th of December, " was duly received." Now, said Mr. Adams, it is a remarkable fact, that this letter of the District Attorney, of December 20 1839, was not communicated with the rest of the documents. Why it was not communicated is not for me to say. The call of the House of Representatives was in the usual form, for information "not incompatible with the public interest ;" which, of course, gives the President the right to withhold any documents that he thinks proper. That letter, therefore, is not communicated, and I cannot reason from it, any farther than its contents may be presumed, from the intimations in the letter of the Spanish minister, in connection with the subsequent proceedings. The Secretary says—
(WASHINGTON, January 6, 1840)
" Sir—Your letter of the 20th ultimo was duly received, and has been laid before the President. The Spanish minister having applied to this department for the use of n vessel of the United States in the event of the decision of the circuit court in the case of the Amistad being favorable to his former application, to convey the Negroes to Cuba, for the purpose of being delivered over to the authorities of that island, the President has, agreeably to your suggestion taken in connection with the request of the Spanish minister, ordered a vessel to be in readiness to receive the Negroes from the custody of the marshal as soon as their delivery shall have been ordered by the court "