Now, what could that suggestion have been? It will be remembered that the Secretary of State had before directed the District Attorney, Sept. 1l, "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." The District Attorney had repeatedly inquired of the Secretary if they could not be disposed of by an Executive act, or before the court met. Until this time he had received no orders from the Department. From the intimation now given, it is evident that the purport of that suppressed letter was an intimation that the district court would undoubtedly deliver them up, and the difficulty then was, how to get them out of the way. There might be a Habeas Corpus from the State courts at the moment of their delivery to the Spaniards, and some new difficulties would intervene. There must have been some such suggestion to warrant or account for the subsequent proceedings. The Secretary goes on to say—
"As the request of the Spanish minister for the delivery of the Negroes to the authorities of Cuba has, for one of its objects, that those people should have an opportunity of proving, before the tribunals of the island, the truth of the allegations made in their behalf in the course of the proceedings before the circuit court, that they are not slaves, the President, desirous of affording the Spanish courts every facility that may be derived from this country towards a fair and full investigation of all the circumstances, and particularly of the allegations referred to with regard to the real condition of the Negroes, has directed that Lieutenants Gedney and Meade be directed to proceed to Cuba, for the purpose of giving their testimony in any proceedings that may be instituted in the premises; and that complete records of all those which have been had before the circuit court of your district, including the evidence taken in the cause, be, with the same view, furnished to the Spanish colonial authorities. In obedience to this last mentioned order, you will cause to be prepared an authentic copy of the records of the court in the case, and of all the documents and evidence connected with it, so as to have it ready to be handed over to the commander of the vessel which is to take out the Negroes, who will be instructed as to the disposition he is to make of them.''
In every thing I have said of the arguments, and the zeal of the Spanish minister, I have admitted that the principles which may be supposed to govern him might go far to justify the sympathy he has shown for one party exclusively. But I cannot give the same credit for the sympathy shown by our own government. In this letter we meet, for the first time, something that might appear like sympathy for the poor wretches whose liberties and lives were in peril. Here is a desire intimated that they might go to Cuba, for the purpose of having an opportunity to prove in the courts of Spain their right to be free by the laws of Spain. And the President, in the abundance of his kindness, orders Lieutenants Gedney and Meade to be sent along with them, as witnesses in the case, " particularly," the Secretary says, "with regard to the real condition of the Negroes, "that is, whether they were free or slaves. But what did Lieutenants Gedney and Meade know about that? They could testify to nothing but the circumstances of the capture. And as to the other idea, that these people should have an opportunity to prove their freedom in Cuba, how could that be credited as a motive, when it is apparent that, by sending them back in the capacity of slaves, they would be deprived of all power to give evidence at all in regard to their freedom! I cannot, therefore, give the Executive credit for this sympathy towards the Africans. It was a mere presence, to blind the public mind with the idea that the Africans were merely sent to Cuba to prove they were not slaves. So far from giving any credit for this sympathy, the letter itself furnishes incontestable evidence of n very different disposition, which I will not qualify in words.
Pursuing the case chronologically, according to the course of the proceedings, I now call the attention of the Court to the opinion of the late Attorney General of the United States, which the Secretary of the State told Mr. Argaiz had been adopted by the Cabinet, and which has been the foundation, to this day, of all the proceedings of the Executive in the case. Before considering this, however, I will advert to the letter of Messrs. Staples and Sedgwick; to the President These gentlemen were counsel for those unfortunate men. There had been reports in circulation, which is by no means surprising, considering the course of the public sympathy, that the President intended to remove these people to Cuba, by force, gubernativamente, by virtue of his Executive authority—that inherent power which I suppose has been discovered, by which the President. at his discretion? can seize men, and imprison them, and send them beyond seas for trial or punishment by a foreign power.
Hear Messrs. Staples and Sedgwick to the President of the United States.
NEW YORK, September 13, 1839.
"Sir—We have been engaged as counsel of the Africans brought in by the Spanish vessel, the Amistad; and, in that capacity, take the liberty of addressing you this letter.
" These Africans are now under indictment in the circuit court of the second circuit, on a charge of piracy, and their defense to this accusation must be established before that tribunal. But we are given to understand, from authority not to be doubted, that a demand has already been made upon the Federal Government, by the Spanish minister, that these Negroes be surrendered to the authorities of his country; and it is on this account that we now address you.
" We are also informed, that these slaves are claimed under the 9th article of the treaty of 1795, between this country and Spain by which all ships and merchandise rescued out of the hands of pirates and robbers on the high seas are to be restored to the true proprietor, upon due and sufficient proof.
" We now apply to you, sir, for the purpose of requesting that no order may be made by the Executive until the facts necessary to authorize its interposition are established by the judicial authority in the ordinary course of justice. We submit that this is the true construction of the treaty; that it is not a mere matter of Executive discretion; but that, before the Government enforces the demand of the Spanish claimant, that demand must be substantiated in a court of justice.
" It appears to us manifest that the treaty could never have meant to have submitted conflicting rights of property to mere official discretion; but that it was intended to subject them to the same tribunals which, in all other cases, guard and maintain our civil rights. Reference to the 7th article, in our opinion, will confirm this position.
" It will he recollected that, that if we adopt this as the true construction of the treaty, should any occasion ever arise when our citizens shall claim the benefit of this section, Spain would be at liberty to give it the same interpretation; and that the rights of our citizens will be subjected to the control of subordinate ministerial
agents, without any of those safeguards which courts of justice present for the establishment of truth and the maintenance of rights. We submit, further, that it never could be intended that the Executive of the Union should be harassed by the investigation of claims of this nature, and yet, assuredly, if the construction contended for be correct, such must be the results for, if he is to issue the order upon due and sufficient proof, the proof must be sufficient to his mind.
''We further submit, that, in regard to the Executive, there are no rules of evidence nor course of proceeding established; and that, in all such cases, unless the claimant be directed to the courts of justice, the conduct of the affair must, of necessity, be uncertain. vague, and not such as is calculated to inspire confidence in the public or the parties. We can find nothing in the treaty to warrant the delivery of these individuals as offenders; and the Executive of the Union has never thought itself obliged, under the laws of nations, to accede to demands of this nature.
" Those suggestions are of great force in this case, because we, with great confidence, assert, that neither according to the law of this, nor that of their own country, can the pretended owners of these Africans establish any legal title to them as slaves.
" These Negroes were, it is admitted, carried into Cuba contrary to the provisions of the treaty between Spain and Great Britain of 1817, and of the orders made in conformity therewith; orderes which have been repented, at different times, to as late a date as the 4th November, 1838, by which the trade is expressly prohibited; and if they had been taken on board the slaver, they would have been unquestionably emancipated.
" They were bought by the present claimants, Messrs. Ruiz and Montes, either directly from the slaver, or under circumstances which must beyond doubt, have apprised them that they were illegally introduced into the Havana; and on this state of facts we, with great respect, insist that the purchasers of Africans illegally introduced into the dependencies of a country which has prohibited the slave trade, and who make the purchase with knowledge of this fact, can acquire no right. We put the matter on the Spanish law and we affirm, that Messrs. Ruiz and Montes hare no title, under that law, to these Africans.
"If this be so, then these Negroes have only obeyed the dictates of self defense. They have liberated themselves from illegal restraint; and it is superfluous to say, that Messrs. Ruiz and Montes have no claim whatever under the treaty.
" It is this question, sir, fraught with the deepest interest, that we pray you to submit for adjudication to the tribunals of the land. It is this question that we pray may not be decided in the recesses of the cabinet, where these unfriended men can have no counsel and can produce no proof, but in the halls of Justice, with the safeguards that she throws around the unfriended and oppressed.
" And, sir, if you should not be satisfied with the considerations here presented, we then submit that we are contending for a right upon a construction of a treaty: that this point, at least, should be presented to the courts of justice; and, should you decide to grant an order surrendering these Africans, we beg that you will direct such notice of it to be given, as may enable us to test the question as we shall be advised, by habeas corpus or otherwise.
"We have only, sir, to add, that we have perfect confidence that you will decide in this matter with a single regard to the interests of justice and the honor of the country, and that we are, with the greatest respect, your most obedient servants,
' SETH P. STAPLES,
"THEODORE SEDGWICK, JR. "
MARTIN VAN BUREN, ESQ.
" President of the United States."
I read the whole of this letter, said Mr. A., to show that this extraordinary course of proceeding was not entered upon by the Executive without warning and counsel. The President of the United States was informed, on the receipt of that letter, in the month of September, 1839, of the deep principles, involving the very foundation of the liberties of this country, that were concerned in the disposal which the Executive might make of these men. That letter was with the late Attorney General when he examined the case, and when he made up his opinion. His opinion, addressed to the Secretary of State, begins thus:
"Sir,—I have the honor to acknowledge the receipt of yours of the 24th of September, in which, by direction of the President, you refer to this office the letter of the Spanish minister of the 6th of September, addressed to you; also the letter of Seth P. Staples and Theodore Sedgwick, Jr. Esqrs., who have been engaged as counsel for the Negroes. taken on board the schooner Amistad, addressed to the President of the United States; and asking my opinion upon the different legal questions presented by these papers.
" I have given to the subject all the consideration which its importance demands, and now present to you, and through you to the President, the result of my reflections upon the whole subject.
" The following is the statement of facts contained in your communication: 'Fine Amistad is a Spanish vessel; was regularly cleared from Havana, a Spanish port in Cuba, to Guanaja, in the neighborhood of Puerto Principe, another Spanish port; that her papers were regular; that the cargo consisted of merchandise and slaves, and was duly manifested as belonging to Don Jose Ruiz and Don Pedro Montes; that the Negroes after being at sea a few days, rose upon the white persons on board; that the captain, his slave and two seamen, were killed, and the vessel taken possession of by the Negroes, that two white Spaniards, after being wounded, were compelled to assist in navigating the vessel, the Negroes intending to carry her to the coast of Africa; that the Spaniards contrived, by altering the courts of steering at night, to keep her on the coast of the United States; that on seeing land off New York, they come to the coast, and some of the Negroes landed to procure water and provisions; that being on the point of leaving the coast, the Amistad was visited by a boat from Captain Gedney's vessel, and that one of the Spaniards, claiming protection from the officer commanding the boat, the vessel and cargo, and all the persons on board, were sent into New London for examination, and such proceedings as the laws of nations and of the United States warranted and required."
Here the Court will see he assumes, through the whole argument that these Negroes were slaves. This corresponds with the assumption of the Executive, which Mr. Forsyth, in his letter to the Spanish minister afterwards declared the Government had carried out, that the Negroes were slaves, and that the only parties injured were Montes and Ruiz. The late Attorney General says it appears that the "cargo consisted of merchandise and slaves," that the papers were " all regular," that after the capture of the vessel by the Negroes, the two white Spaniards " were compelled to assist in navigating the vessel, the Negroes intending to carry her to the coast of Africa, "but" the Spaniards contrived, by altering the course of steering at night, to bring her to the United States." This last is an admission of some importance, as the Court will easily see, in deciding upon the character of the voyage which the vessel was pursuing when taken by Lieutenant Gedney. He proceeds to say:
In the intercourse and transactions between nations, it has been found indispensable that due faith and credit should be given by each to the official acts of the public functionaries of others. Hence the sentences of prize courts under the laws of nations, or admiralty, and exchequer or other revenue courts, under the municipal law, are considered as conclusive as to the proprietary interest in, and title to, the things in question; nor can the same be examined into in the judicial tribunals of another country. Nor is this confined to judicial proceedings! The acts of other officers of a foreign nation, in the discharge of their ordinary duties, are entitled to the like respect. And the principle seems to be universally admitted, that, whenever power or jurisdiction is delegated to any public officer or tribunal, and its exercise is confided to his or their discretion, the acts done in the exercise of that discretion, and within the authority conferred, are binding as to the subject matter; and this is true, whether the officer or tribunal be legislative, executive, judicial, or special.—Weaton's Elements of International Law, page 121; 6th Peter's, page 729."
There is the basis of his opinion; that the comity of nations requires, that such a paper, signed by the Governor General of Cuba, is conclusive to all the world as a title to property. If the life and liberty of men depends on any question arising out of these papers, neither the courts of this country nor of any other can examine the subject, or go behind this paper. In point of fact, the voyage of the Amistad, for which these papers were given, was but the continuation of the voyage of the slave trader, and marked with the horrible features of the middle passage. That is the fact in the case, but this government and the courts of this country cannot notice that fact, because they must not go behind that document. The Executive may send the men to Cuba, to be sold as slaves, to be put to death, to be burnt at the stake, but they must not go behind this document, to inquire into any facts of the case. That is the essence of the who]e argument of the late Attorney General. At a subsequent part of my argument I shall examine this document, and I undertake to show that it is' not even valid for what it purports to be, and that as a passport it bears on its face the insignia of imposture. But at present I will only observe that it is n most unheard of thing, that in a question of property, a passport should be supposed to give a valid title. Papers of foreign courts and functionaries are to be credited for that which they intend to do. A passport, if it is regular, is to be credited as a passport. But when was it ever supposed that a passport stating what a person carries with him is evidence of his property in that which is described ? All the decisions of this court agree that foreign papers are good only for that which they propose and purport, but not as evidence of property. And yet the opinion of the late Attorney General rests on that ground. In a case involving the lives and liberties of a large number of men, he has not a word to say of the principles of justice or humanity concerned, but goes entirely on the force of this document, on the ground that we cannot go behind the certificate of the Spanish Captain General. He says:
"Were this otherwise, all confidence and comity would cease to exist among nations; and that code of international law, which now contributes so much to the peace, prosperity and harmony of the world, would no longer regulate and control the conduct of nations."
This principle of national comity, I have no desire to contest, so far as it is applicable to this case. The Attorney says:—
" In the case of the Antelope, (10 Wheaton, page 66,) this subject was fully examined, and the opinion of the Supreme Court of the United States establishes the following points:—
"1. That, however unjust and unnatural the slave trade may be, it is not contrary to the law of nations.
" 2. That, having been sanctioned by the usage and consent of almost all civilized nations, it could not be pronounced illegal, except so far as each nation may have made it so by its own acts or laws; and these could only operate upon itself, its own subjects or citizens; and, of course, the trade would remain lawful to those whose Government had not forbidden it.
"3. That the right of bringing in and adjudicating upon the case of a vessel charged with being engaged in the slave trade, even where the vessel belongs to a nation which has prohibited the trade, cannot exist. The courts of no country execute the penal laws of another, and the court of the American Government on the subject of visitation and search would decide any case in which that right had been exercised by an American cruiser, on the vessel of a foreign nation not violating our municipal laws, against the captors.
" It follows, that a foreign vessel engaged in the African slave trade, captured on the high seas in time of peace, by an American cruiser, and brought in for adjudication, would be restored.
" The opinions here expressed go far beyond the present case; they embrace cases where the Negroes never have been within the territorial limits of the nation of which the claimant is a citizen."
Here reference is made to the case of the Antelope, in 10 Wheaton, to which I shall hereafter solicit the particular attention of the Court, as I purpose to examine it in great detail, as to all the principles that have been supposed to be decided by that case, and especially on the point here alluded to, concerning which Chief Justice Marshall says that the Court was divided, therefore , no principle is decided. That was the most solemn and awful decision that ever was given by any Court. The Judges did not deliver their opinions for publication, or the reasons, because the court was divided. This case is laid at the foundation of the argument or opinion of the Attorney General on which this whole proceeding is based, and it is appealed to in all the discussions as authority against the rights of these unfortunate people. I shall, therefore, feel it to be my duty to examine it to the bottom.
The second principle drawn by the late Attorney General, if he had reasoned on the subject as men ought to reason, is in favor of the claims of the Africans. The Antelope was engaged in the slave trade south of the Line, where it was not then prohibited by the laws of Spain. The decision of the Supreme Court, such as it was, was in affirmance of the decree of the court below. Judge Davies, in the District Court of Georgia, and Judge Johnson, of the Circuit Court, said that, if the slave trade had at that time been abolished by Spain, their decision would have been otherwise. That trade is now abolished by Spain.
The late Attorney General says ii the courts of no country execute the penal laws of another." I may ask, does any nation execute the slave laws of another country ? Is not the slave system, the Code Noir, as peculiar as the revenue system or the criminal code? These men were found free, and they cannot now be decreed to be slaves, but by making them slaves. By what authority will this court undertake to do this ? What right has Ruiz to claim these men as his property, when they were free, and so far from being in his possession when taken, he was in theirs. If there is no right of visitation and search by the cruisers of one nation over those of another, by what right has this ship been taken from the men who had it in their possession? The captors in this case, are Gedney and Meade, the owners are the Africans. The Attorney says,
" This vessel was not engaged in the slave trade; she was employed lawfully in removing these Negroes, as slaves, from one part of the Spanish dominions to another, precisely in the same way that slaves are removed, by sea, from one slave State to another in our own country. I consider the facts as stated, so far as this government is concerned, as establishing a right of ownership to the Negroes in question, in the persons in whose behalf the minister of Spain has made a demand upon the government of the U. States."
Now, here I take issue The vessel was engaged in the slave trade. The voyage in the Amistad was a mere continuation of the original voyage in the Tecora. The voyage in its original intention was not accomplished until the slaves had reached their final destination on the plantation. This is the principle universally applicable to coasting vessels. I say further, that the object of Ruiz and Montes was illegal, it was a part of the voyage from Lomboko, and when they fell into the hands of Lieutenant Gedney, they were steering in pursuance of that original voyage. Their object was to get to Porto Principe, and of course the voyage was to them an unlawful one. The object of the Africans was to get to a port in Africa, and their voyage was lawful. And the whole character of the affair was changed by the transactions that fool; place on board of the ship. The late Attorney, however, comes to the conclusion that the courts of the United States cannot proceed criminally against these people, that the provisions of the Acts of Congress against the slave trade are not applicable to Ruiz and Montes, and so he recurs to the 9th Article of the Treaty of 1795. I have nothing to add to what I have before said respecting the treaty. It can have no possible application in this case.
The late Attorney General now comes to a conclusion as to what is to be done—a conclusion which it is not in my power to read to the Court without astonishment, that such an opinion should ever have been maintained by an Attorney General of the United States.
" My opinion further is, that the proper mode of executing this article of treaty, in the present case, would be for the President of the United States to issue his order, directed to the Marshal in whose custody the vessel and cargo are, to deliver the same to such persons as may be designated by the Spanish minister to receive them. The reasons which operate in favor of a delivery to the order of the Spanish minister are—
" 1. The owners of the vessel and cargo are not all in this country and, of course, a delivery cannot be made to them.
"2. This has become a subject of discussion between the two Governments, and, in such a case, the restoration should be made to that agent of the Government who is authorized to make, and through whom the demand is made.
" 3. These Negroes are charged with an infraction of the Spanish laws; therefore, it is proper that they should be surrendered to the public functionaries of that Government, that if the laws of Spain have been violated, they may not escape punishment.
" 4. These Negroes deny that they are slaves; if they should be delivered to the claimants, no opportunity may be afforded for the assertion of their right to freedom. For these reasons, it seems to me that a delivery to the Spanish minister is the only safe course for this Government to pursue."
That is the opinion, which the Secretary of State told the Spanish minister the American Cabinet had adopted! That these MEN, being at that time in judicial custody of the Court of the United States, should be taken out of that custody, under an order of the President, and sent beyond seas by his sole authority! The Cabinet adopted that opinion; why, then, did they not act upon it? Why did not the President send his order to the Marshal to seize these men, and ship them to Cuba, or deliver them to the order of the Spanish Minister? I am ashamed ! I am ashamed that such an opinion should ever have been delivered by any public officer of this country, executive or judicial. I am ashamed to stand up before the nations of the earth, with such an opinion recorded as official, and what is worse, as having been adopted by the government:—an opinion sanctioning a particular course of proceeding, unprecedented among civilized countries, which was thus officially sanctioned, and yet the government did not dare to do it. Why did they not do it? If this opinion had been carried into effect, it would have settled the matter at once, so far as it related to these unfortunate men. They would have been wrested from that protection, which above all things was their due after they had been taken into custody by order of the Court, and would have been put into the power of " public vengeance" at Havana. Yet there was not enough. There seems to have been an impression that to serve an order like that would require the aid of a body of troope.— The people of Connecticut never would, never ought to have suffered it to be executed on their soil, but by main force. So the Spanish minister says his government has no ship to receive these people, and the President must therefore go further, and as he is responsible for the safekeeping and delivery of the men, he must not only deliver them up, but ship them off in a national vessel, so that there may be no Habeas Corpus from the State Courts coming to the rescue as soon as they are out of the control of the judiciary. The suggestion, which first came from the District Attorney, that the Court would undoubtedly place the Africans at the mercy of the Executive, is carried out by an announcement from the Secretary of State, of an agreement with Mr. Argaiz to send them to Cuba in a public ship. Here is the memorandum of the Secretary of State to the Secretary of the Navy.
" DEPARTMENT OF STATE, January 2, 1840.
" The vessel destined to convey the Negroes of the Amistad to Cuba, to be ordered to anchor off the port of New Haven, Connecticut, as early as the 10th of January next, and be in readiness to receive said Negroes from the marshal of the United States, and proceed with them to Havana, under instructions to be hereafter transmitted.
" Lieutenant Gedney and Meade to be ordered to hold themselves in readiness to proceed in the same vessel, for the purpose of affording their testimony in any proceedings that may be ordered by the authorities of Cuba in the matter.
" These orders should be given with special instructions that they are not to be communicated to any one."
Well, the order was given by the Secretary of the Navy, that the schooner Grampus should execute this honorable service.
The Secretary of the Navy to the Secretary of State.
" NAVY DEPARTMENT, Jan. 2, 1840.
" SIR,—I have the honor to state that, in pursuance of the memorandum sent by you to this department, the United States schooner Grampus, Lieutenant Commanding John S. Paine, has been ordered to proceed to the bay of New Haven, to receive the Negroes captured in the Amistad. The Grampus will probably be at the point designated a day or two before the 10th inst., and will there await her final instructions in regard to the Negroes."
A celebrated state prisoner, when going to the scaffold, was led by the statue of Liberty, and exclaimed, " O, Liberty! how many crimes are committed in thy name!" So we may say of our gallant navy, "What crimes is it ordered to commit! To what uses is it ordered to be degraded!"
On the 7th of January, the Secretary of State writes to the Secretary of the Navy, acknowledging the receipt of his letter of the 3d, informing him that the schooner Grampus would receive the Negroes of the Amistad, " for the purpose of conveying them to Cuba, in the event of their delivery being adjudged by the circuit court, before whom the case is pending." This singular blunder, in naming the court, shows in what manner and with how little care the Department of State allowed itself to conduct an affair, involving no less than the liberties and lives of every one of my clients. This letter inclosed the order of the President to the Marshal of Connecticut for the delivery of the Negroes to Lieut. Paine. Although disposing of the lives of forty human beings, it has not the form or solemnity of a warrant, and is not even signed by the President in his official capacity. It is a mere order.
"The Marshal of the United States for the district of Connecticut will deliver over to Lieut. John S. Paine, of the United States Navy, and aid in conveying on board the schooner Grampus, under his command, all the Negroes, late of the Spanish schooner Amistad, in his custody, under process now pending before the Circuit court of the United States for the district of Connecticut. For so doing, this order will be his warrant.
" Given under my hand, at the city of Washington, this 7th day of January, A. D. 1840.
" M. VAN BUREN.
"By the President:
"JOHN FORSYTH, Sec. of State."
That order is good for nothing at all. It did not even describe the court correctly, under whose protection these unfortunate people were. And on the 11th of January, the District Attorney had to send n special messenger, who came, it appears all the way to Washington in one day, to inform the Secretary that the Negroes were not holden under the order of the Circuit Court but of the District Court. And he says, "Should the pretended friends of the Negroes"—the pretended friends!—" obtain a writ of Habeas Corpus, the Marshal could not justify under that warrant." And he says, " the Marshal wishes me to inquire "—a most amiable and benevolent inquiry—" whether in the event of a decree requiring him to release the Negroes, or in case of an appeal by the adverse party, it is expected the Executive warrant will be executed " that is, whether he is to carry the Negroes on board of the Grampus in the face of a decree of the court. And he requests instructions on the point. What a pretty thing it would have been, if he had received such instructions, in the face of a decree of the court! I should like to ask him which he would have obeyed. At least, it appears, he had such doubts whether he should obey the decree of the court' that he wanted instructions from the President. I will not say what temper it shows in the Marshal and the District Attorney.
On the 12th of January, the very next day after the letter of the District Attorney was written at New Haven, the Secretary of State replies in a dispatch which is marked " confidential."
[CONFIDENTIAL.]
" DEPARTMENT OP STATE, Jan. 12, 1840.
" SIR,—Your letter of the 11th instant has just been received. The order for the delivery of the Negroes of the Amistad is here with returned, corrected agreeably to your suggestion. With reference to the inquiry from the Marshal, to which you allude, I have to state, by direction of the President, that, if the decision of the court is such as is anticipated, the order of the President is to be carried into execution, unless an appeal shall actually have been interposed. You are not to take it for granted that it will be interposed. And if, on the contrary, the decision of the court is different, you are to take out an appeal, and allow things to remain as they are until the appeal shall have been decided.
" I am, sir, your obedient servant,
" W. S. HOLABIRD, Esq.,
Attorney U. S. for Dist. of Conn."
"JOHN FOR FORSYTH.
Now, may it please your Honors, this corrected order, the final order of the President of the United States, is not in evidence, it does not appear among the documents communicated to Congress, and I feel some curiosity to know how it was corrected I have heard it intimated that the President of the United States never knew it had been changed, and that the alternative was made, perhaps by a clerk in the State Department, just by drawing his pen through the word circuit, and interlining the word district. I put it to your Honors to say what sort of regard is here exhibited for human life and for the liberties of these people. Did not the President know, when he signed that order for the delivery of MEN to the control of an officer of the navy to be carried beyond seas, he was assuming a power that no President had ever assumed before, It is questionable whether such a power could have been exercised by the most despotic government of Europe. Yet this business was coolly dispatched by a mere informal order, which order was afterwards altered by a clerk.
The Secretary of State further instructs the District Attorney, that " if the decision of the Court shall be such as is anticipated, the order of the President is to be carried into execution, unless an appeal is actually interposed," and he is " NOT TO TAKE IT FOR GRANTED THAT IT WILL BE INTERPOSED." The Government then confidently "anticipated" that the Negroes would be delivered up; and the Attorney was directed not to allow them a moment of time to enter an appeal. They were to be put on board of the Grampus instantly, and deprived, if possible, of the privilege of appealing to the higher Courts. Was this JUSTICE ?
But after all, the order did not avail. The District Judge, contrary to all these anticipations of the Executive, decided that the thirty six Negroes taken by Lieut. Gedney and brought before the Court on the certificate of the Governor General of Cuba, were FREEMEN; that they had been kidnapped in Africa; that they did not own these Spanish names; that they were not ladinos, and were not correctly described in the passport, but were new Negroes bought by Ruiz in the depot of Havana, and fully entitled to their liberty.
Such was the disposal intended, deliberately intended, by a President of the United States to be made, of the lives and liberty of thirty six human beings!—The Attorney General of the United States, at once an Executive and a judicial officer of the American people, bound in more than official duty to respect the right of personal liberty and the authority of the Judiciary Department had given a written opinion, that, at the instigation of a foreign minister, the President of the United States should issue his order, directed to the marshal to whose custody these persons had been committed, by order of the judge, as prisoners and witnesses, and commanding that marshal to wrest them from the hands of justice, and deliver them to such persons as should be designated by that same foreign minister to receive them. Will this Court please to consider for one moment, the essential principle of that opinion ? Will this Court inquire, what, if that opinion had been successfully carried into execution, would have been the tenure by which every human being in this Union, man, woman, or child, would have held the blessing of personal freedom? Would it not have been by the tenure of Executive discretion, caprice or tyranny? Had the precedent once been set and submitted to, of a nameless mass of judicial prisoners and witnesses, snatched by Executive grasp from the protective guardianship of the Supreme Judges of the land, (gubernativamente,) at the dictate of a foreign minister, would it not have disabled forever the effective power of the Habeas Corpus? Well was it for the country—well V/OS it for the President of the United States himself that he paused before stepping over this Rubicon !—[hat he said—"We will proceed no further in this business." And yet, he did not discard the purpose, and yet he saw that this executive trampling at once upon the judicial authority and upon personal liberty would not suffice, either to satisfy the Spanish Minister or to satiate the public vengeance of the barracoon slave traders. Had the unfortunate Africans been torn away from the protection of the Court, and delivered up to the order of the Spanish Minister, he possessed not the means of shipping them off to the Island of Cuba. The indignation of the freemen of Connecticut, might not tamely endure the sight, of thirty six free persons, though Africans, fettered and manacled in their land of freedom, to be transported beyond the seas, to perpetual hereditary servitude or to death, by the servile submission of an American President to the insolent dictation of a foreign minister. There were judges of the State Courts in Connecticut, possessing the power of issuing the Writ of Habeas Corpus, paramount even to the obsequiousness of a federal marshal to an Executive mandate. The opinion of the Attorney General, comprehensive as it was for the annihilation of personal liberty, carried not with it the means of accomplishing its object. What then was to be done? To save the appearance of a violent and shameless outrage upon the authority of the judicial courts, the moment was to be watched when the Judge of the District Court should issue his decree, which it was anticipated would be conformable to the written opinion of the Attorney General. From that decree the Africans would be entitled to an appeal, first to the Circuit and eventually to the Supreme Court of the United States—but with suitable management, by one and the same operations they might be choused out of that right, the Circuit and Supreme Courts ousted of their jurisdiction, and the hapless captives of the Amistad delivered over to slavery and to death.
For this purpose at the suggestion of the District Attorney Holabird, and at the requisition of the dictatorial Spanish Minister, the Grampus, one of the smallest public vessels of the United States, a schooner of burden utterly insufficient to receive and contain under the shelter of her main deck, thirty six persons additional to the ship's company, was in the dead of winter, ordered to repair from the navy yard at Brooklyn to New Haven where the Africans were upon trial, with this secret order which I have read to the Court, signed " Martin Van Buren," commanding the Marshal of the District of Connecticut to deliver over to Lieut. John S. Paine, commander of the Grampus, and aid in conveying on board that schooner all the Negroes, late of the Spanish schooner Amistad, in his custody, under process [now] pending before the Circuit Court of the United States for the District of Connecticut.
Of this ever memorable order, this Court will please to observe that it is in form and phraseology, perfectly conformable to the written opinion which had been given by the Attorney General. It is not conditional, to be executed only in the event of a decision by the court against the Africans, but positive and unqualified to deliver up all the Africans in his custody, under process now pending. There was nothing in the order itself to prevent Lieut. Paine from delivering it to the marshal, while the trial was pending; it carries out in form the whole idea of the Attorney General's opinion, that the President's order to the marshal is of itself all sufficient to supersede the whole protective authority of the judiciary—and with this pretension on the face of the order, i6 associated another, if possible still more outrageous upon every security to personal liberty, in the direction to the marshal to deliver over to Lieut. Paine all the Negroes, late of the Amistad, under his custody.
Is it possible that a President of the United States should be ignorant that the right of personal liberty is individual. That the right to it of every one, is his own—JUS SUMM; and that no greater violation of his official oath to protect and defend the Constitution of the United States, could be committed, than by an order to seize and deliver up at a foreign minister's demand, thirty six persons, in a mass, under the general denomination of all, the Negroes, late of the Amistad. That he was ignorant, profoundly ignorant of this self evident truth, inextinguishable till under gilt framed Declarations of Independence shall perish in the general conflagration of the great globe itself. I am constrained to believe—for to that ignorance, the only alternative to account for this order to the Marshal of the District of Connecticut, is willful and corrupt perjury to his official presidential oath.
But ignorant or regardless as the President of the United States might be of the self evident principles of human rights, he was bound to know that he could not lawfully direct the delivery up to a foreign minister. even of slaves, of acknowledged undisputed slaves, in an undefined, unspecified number. That the number must be defined, and individuals specifically designated, had been expressly decreed by the Supreme Court of the united States in that very case of the Antelope so often, and as I shall demonstrate so erroneously quoted as a precedent for the captives of the Amistad.
"Whatever doubts (said in that case Chief Justice Marshall) may attend the question whether the Spanish claimants are entitled to restitution of all the Africans taken out of their possession with the Antelope we cannot doubt the propriety of demanding ample proof of the extent of that possession. Every legal principle which requires the plaintiff to prove his claim in any case, applies with full force to this point; and no countervailing consideration exists. The onus probandi, as to the number of Africans which were on board, when the vessel was captured, unquestionably lies on the Spanish libellants. Their proof is not satisfactory beyond 93. The individuals who compose this number must be designated to the satisfaction of the Circuit Court." l0 Wheaton 128. And this decision acquires double authority, as a precedent to establish the principles which it affirms, inasmuch as it was given upon appeal, and reversed the decision of the Circuit Court, which had resorted to the drawing of lots; both for the designation of the number' and for the specification of individuals.
Lawless and tyrannical; (may it please the Court—Truth, Justice, and the Rights of humankind forbid me to qualify these epithets) Lawless and Tyrannical, as this order thus was upon its face, the cold blooded cruelty with which it was issued—was altogether congenial to its spirit—I have said that it was issued in the dead of winter—and that the Grampus was of so small a burden as to be utterly unfit for the service upon which she was ordered. I now add that the gallant officer who commanded her remonstrated, with feelings of indignation' controlled only by the respect officially due from him to his superiors against it. That he warned them of the impossibility of stowing this cargo of human flesh and blood beneath the deck of the vessel, and that if they should be shipped in the month of January, on her deck, and the almost certain casualty if a storm should befall them on the passage to Cuba, they must all inevitably perish. He remonstrated in vain! He was answered only by the mockery of an infraction, to treat his prisoners with all possible tenderness and attention.— If the whirlwind had swept them all into the ocean he at least would have been guiltless of their fate.
But although the order of delivery was upon its face absolute and unconditional, it was made conditional, by instructions from the Secretary of State to the District Attorney. It was to be executed only in the event of the decision of the court being favorable to the pretended application of the Spanish minister, and Lieutenant Paine was to receive the Negroes from the custody of the marshal as soon as their delivery should have been ordered by the court.
" Letting I dare not wait upon I would," a direct collision with the authority of the judicial tribunals was cautiously avoided; and a remarkable illustration of the thoughtless and inconsiderate character of the whole Executive action in this case, appears in the fact, that with all the cunning and intricate stratagems to grab and ship off these poor wretches to Cuba, neither the President of the United States who signed, nor the Secretary of State who transmitted the order knew, but both of them mistook the court, before which the trial of the Africans was pending. The supposed it was the Circuit, when in fact it was the District Court.
The Grampus arrived at New Haven three days before the decision of Judge Judson was pronounced. Her appearance there, in January, when the ordinary navigation of Long Island Sound is suspended, coming from the adjoining naval station at Brooklyn, naturally excited surprise, curiosity, suspicion. What could be the motive of the Secretary of the Navy for ordering a public vessel of the United States upon such a service at such a time
Why should her commander, her officers and crew be exposed, in the most tempestuous and the coldest month of the year, at once to the snowy hurricanes of the northeast, and the ice bound shores of the northwest? These were questions necessarily occurring to the minds of every witness to this strange and sudden apparition. Lieut. Paine and his officers were questioned why they were there, and whither they were bound ? They could not tell. The mystery of iniquity sometimes is but a transparent veil and reveals its own secret. The fate of the Amistad captives was about to be decided as far as it could be by the judge of a subordinate tribunal. The surrender of them had been demanded of the Executive by a foreign minister, and earnestly pressed upon the court by the President's officer, the District Attorney. The sudden and unexpected appearance of the Grampus, with a destination unavowed, was a very intelligible signal of the readiness' of the willingness, of the wish of the President to comply with the foreign minister's demand. It was a signal equally intelligible to the political sympathies of a judge presumed to be congenial to those of a northern President with southern principles, and the District Attorney in his letter of 20th December had given soothing hopes to the Secretary of State, which he in turn had communicated in conference, on the 28th of December, to the Spanish minister, that the decree of the judge, dooming the Africans to servitude and death in Cuba, would be as pliant to the vengeful thirst of the barracoon slave traders, as that of Herod was in olden times to the demand of his dancing daughter for the head of John the Baptist in a charger.
But when Lieut. Paine showed to the District Attorney the Executive warrant to the marshal for the delivery of the Negroes, he immediately perceived its nullity by the statement that they were in custody under a process from the " Circuit Court" and that the same error had been committed in the instructions to the marshal. "In great haste," therefore, he immediately dispatched Lieut. Meade, as a special messenger to Washington, requesting a correction of the error in the warrant and instructions; giving notice that if the pretended friends of the Negroes obtain a writ of habeas corpus, the marshal could not justify under the warrant as it was; and that the decision of the court would undoubtedly be had by the time the bearer of the message would be able to return to New Haven.
This letter was dated the 11th of January, 1840. The trial had already been five days "progressing." The evidence was all in, and the case was to be submitted to the court on that day. Misgivings were already entertained that the decision of the judge might not be so complacent to the longings of the Executive department as had been foretold and almost promised on the 20th of December. Mr. Holabird, therefore, at the desire of the Marshal propounds that decent question, and requests precise instructions,'` whether in the event of a decree by the court requiring the Marshal to release the Negroes, or in case of an appeal by the adverse party, it was expected the EXECUTIVE warrant [to ship off the prisoners in the Grampus to Cuba,] would be executed?" These inquiries may account perhaps for the fact that the same Marshal, after the District and Circuit Courts had both decided that these Negroes were free, still returned them upon the census of the inhabitants of Connecticut as Slaves.
The Secretary of State was more wary. The messenger, Lieut. Meade, bore his dispatch from New Haven to Washington in one day. On the 12th of January, Mr. Forsyth in a confidential letter to Mr. Holabird informs him that his missive of the day before had been received. That the order for the delivery of the Negroes to Lieut. Paine of the Grampus was returned, corrected agreeably to the District Attorney's suggestion—by whom corrected no uninitiated man can tell. Of the final warrant of Martin Van Buren, President of the United States, to the Marshal of the District of Connecticut, to ship for transportation beyond the seas, an undefined, nameless number of human beings, not a trace remains upon the records or the files of any one of the Executive Departments, and when nearly three months after this transaction the documents relating to it were, upon a call from the House of Representatives, communicated to them by massage from Mr. Van Buren himself, this original, erroneous, uncorrected order of the 7th of January, 1810, was the only one included in the communication.
But in the confidential answer of the Secretary of State of the 12th of January to the inquiries of the Marshal, he says, " I have to state by direction of the President, that if the decision of the Court is such as is anticipated, (that is, that the captives should be delivered up as slaves,) the order of the President is to be carried into execution, unless an appeal shall actually have been interposed, you are not to take it for granted that it will be interposed. And if on the contrary the decision of the Court is different, you are to take out an appeal, and allow things to remain as they are until the appeal shall have been decided." The very phraseology of this instruction is characteristic of its origin, and might have dispensed the Secretary of State from the necessity of stating that it emanated from the President himself. The inquiry of the Marshal was barefaced enough; whether, if the Executive warrant and the judicial decree should come in direct conflict with each other, it was expected that he should obey the President, or the Judge ? No ! says the Secretary of State. If the decree of the Judge should be in our favor, and you can steal a march upon the Negroes by foreclosing their right of appeal, ship them off without mercy and without delay: and if the decree should be in their favor, fail not to enter an instantaneous appeal to the Supreme Court where the chances may be more hostile to self emancipated slaves.
Was ever such a scene of Liliputian trickery enacted by the rulers of a great, magnanimous, and Christian nation? Contrast it with that act of self emancipation by which the savage, heathen barbarians Cinque and Grabeau liberated themselves and their fellow suffering countrymen from Spanish slave traders, and which the Secretary of State, by communion of sympathy with Ruiz and Montes, denominates lawless violence. Cinque and Grabeau are uncouth and barbarous names. Call them Harmodius and Aristogiton, and go back for moral principle three thousand years to the fierce and glorious democracy of Athens. They too resorted to lawless violence, and slew the tyrant to redeem the freedom of their country. For this heroic action they paid the forfeit of their lives: but within three years the Athenians expelled their tyrants themselves, and in gratitude to their self devoted deliverers decreed, that thenceforth no slave should ever bear either of their names. Cinque and Grabeau are not slaves. Let them bear in future history the names of Harmodius and Aristogiton.
This review of all the proceedings of the Executive I have made with the utmost pain, because it was necessary to bring it fully before your Honors, to show that the course of that department had been dictated, throughout, not by justice but by sympathy—and a sympathy the most partial and unjust. And this sympathy prevailed to such a degree, among all the persons concerned in this business, as to have perverted their minds with regard to all the most sacred principles of law and right, on which the liberties of the people of the United States are founded; and a course was pursued, from the beginning to the end, which was not only an outrage upon the persons whose lives and liberties were at stake, but hostile to the power and independence of the judiciary itself.
I am now, may it please your Honors, obliged to call the attention of the Court to a very improper paper, in relation to this case, which was published in the Official Journal of the Executive Administration, on the very day of the meeting of this Court, and introduced with a commendatory notice by the editor, as the production of one of the brightest intellects of the South. I know not who is the author, but it appeared with that almost official sanction, on the day of meeting of this Court. It purports to be a review of the present case. The writer begins by referring to the decision of the District Court and says the case is " one of the deepest importance to the southern states." I ask, may it please your Honors, is that an appeal to JUSTICE ? What have the southern states to do with the case, or what has the case to do with the southern states ? The case, as far as it is known to the courts of this country, or cognizable by them, presents points with which the southern states have nothing to do It is a question of slavery and freedom between foreigners; of the lawfulness or unlawness of the African slave trade; and has not, when properly considered, the remotest connection with the interests of the southern states.
What was the purpose or intent of that article, I am not prepared to say, but it was evidently calculated to excite prejudice, to arouse all the acerbities of feeling between different sections of this country, and to connect them with this case, in such a manner as to induce this Court to decide it is favor of the alledged interests of the southern states, and against the suppression of the African slave trade. It is not my intention to review the piece at this time. It has been done, and ably done, by more than one person. And after infinite difficulty, one of these answers has been inserted in the same official journal in which the piece appeared. I now wish simply, to refer your Honors to the original principle of slavery' as laid down by this champion of the institution. It is given by this writer as a great principle of national law and stands as the foundation of his argument. I wish, if your Honors deem a paper of this kind, published under such circumstances, worthy of consideration in the decision of a case, that your Honors would advert to that principle, and say whether it is a principle recognized by this Court, as the ground on which it will decide cases.
" The truth is, that property in man has existed in all ages of the world, and results from the natural state of man, which is war. When God created the first family and gave them the fields of the earth as an inheritance, one of the number, in obedience to the impulses and passions that had been implanted in the human heart, rose and slew his brother. This universal nature of' man is alone modified by civilization and law. War, conquest, and force, have produced slavery, and it is state necessity and the internal law of self preservation, that will ever perpetuate and defend it."
There is the principle, on which a particular decision is demanded from this Court, by the Official Journal of the Executive, on behalf of the southern states? Is that a principle recognized by this Court? Is it the principle of that DECLARATION? [Here Mr. A. pointed to the Declaration of Independence, two copies of which hang before the eyes of the Judges on the bench.] It is alleged in the Official Journal, that war gives the right to take the life of our enemy, and that this confers a right to make him a slave, on account of having spared his life. Is that the principle on which these United States stand before the world?. That DECLARATION says that every man is "endowed by his Creator with certain inalienable rights," and that among these are life, liberty, and the pursuit of happiness.'' if these rights are inalienable, they are incompatible with the rights of the victor to take the life of his enemy in war, or to spare his life and make him a slave. If this principle is sound, it reduces to brute force all the rights of man. It places all the sacred relations of life at the power of the strongest. No man has a right to life or liberty, if he has an enemy able to take them from him. There is the principle. There is the whole argument of this paper. Now I do not deny that the only principle upon which a color of right can be attributed to the condition of slavery is by assuming that the natural state of man is war The bright intellect of the South, clearly saw, that without this principle for a corner stone, he had no foundation for his argument. He assumes it therefore without a blush, as Hobbes assumed it to prove that government and despotism are synonymous words. I will not here discuss the right or the rights of slavery, but I say that the doctrine of Hobbes, that War is the natural state of man, has for ages been exploded, as equally disclaimed and rejected by the philosopher and the Christian. That it is utterly incompatible with any theory of human rights, and especially with the rights which the Declaration of Independence proclaims as self evident truths. The moment you come, to the Declaration of Independence, that every man has a right to life and liberty, an inalienable right, this case is decided. I ask nothing more in behalf of these unfortunate men, than this Declaration. The opposite principle is ]aid down, not by an unintelligent or unthinking man, but is given to the public and to this Court, as coming from one of the brightest intellects of the South. Your Honors see what it comes to, when carried out. I will call the attention of the Court to one more paragraph:—
"Instead of having the Negroes placed in a situation to receive punishment for what offenses they may have committed against their masters, those who have been in Cuba in undisputed possession of property under the Spanish flag were instantly deprived of that possession, and their final title to the property peremptorily decided upon by an American court, in defiance of the plainest treaty stipulations. Not only that, but Ruiz and Montes, Spanish citizens, thus forced into our territory under appalling circumstances, where common humanity, independent of all law, demanded that they should be treated with hospitality as unfortunate guests were actually thrown into prison under charges which the Negroes were instigated to make, for offenses committed against the Negroes while they were in Cuba, under the Spanish jurisdiction. This is the justice of an American court, bowed down in disgraceful subserviency before the bigoted mandates of that blind fanaticism which prompted the Judge upon the bench to declare in his decree, in reference to one of these Negroes, that, 'Although he might be stained with crime, yet he should not sigh in vain for Africa ;' and all because his hands were reeking with the blood of murdered white men! ! It is a base outrage (I can use no milder language,) upon all the sympathies of civilized life."
That is the complimentary manner in which the courts of the United States are treated by the brightest intellects of the South, in the Official Journal, and under the immediate supervision of the Executive Administration of the Government.
During the present session, a further correspondence between the Secretary of State and the Spanish minister has been communicated to Congress. The Spanish minister seems to be ever attentive to all that is going on, in all the departments of Government, with relation to this case. In a letter dated the 20th of March, 1840, he observes that the Secretary of State had confidently asked him to furnish a copy of the existing laws of Cuba relative to Negro slavery. What was this for? Was the President of the United States under the impression that before he carried into effect this exercise of despotic power, to seize MEN, by his own warrant, and send them to foreign countries for punishment by his own order—there would be some sort of decency, at least, in having a show of evidence to show that the Spanish law required that they should be delivered up? The Secretary of State asked Mr. Calderon for evidence in the case, but he had none to give He then "confidently" asked Mr. Argaiz for the law of Spain in the case—the law, be it remembered, on which the United States were presenting a suit against individuals, solely, as they alledge, in pursuance of a demand made by the minister of Spain to that effect. What is the reply ? Mr. Argaiz says he cannot communicate the law officially because he cannot recognize the jurisdiction of the Court over the case. Here is another point blank contradiction of the serial averment of the claim which the United States Government is prosecuting here— that the suit is in pursuance of the demand of Spain now pending against the Government. Mr. Argaiz, therefore, communicates a certain memorandum, "confidentially." This memorandum begins.
"Mr. Forsyth way pleased, some time since, to state to the Chevalier de Argaiz, that it would be expedient to obtain a copy of the laws now in force in the island of Cuba relative to slavery The Chevalier de Arnaiz therefore immediately requested from the Captain General of that island every thing on the subject, which has been determined since the treaty concluded in 1818, between Spain and England."
Now, may it please the Court, may I inquire why this demand was limited to laws subsequent to the treaty of 1818? The decree for abolishing the slave trade was issued in 18l7. Why did the Spanish minister limit his request to laws passed after 1818? Why was not the decree of 1817 brought forward? Was it kept back because he thought, with Mr. Vega, that the laws had been broken so much in Cuba, that they were not in force ? Or did he think the authentication of that Decree might have some injurious effect in the trial here ? Whatever was the reason, it is certain that, to Mr. Forsyth's request for " a copy of the laws now in force in the Island of Cuba relative to slavery," only the laws since 1818 were communicated, and the Decree of 1817, making the slave trade unlawful and its victims free, was kept beck. Even the treaty of 1835, which was communicated, " the Chevalier de Argaiz requests maybe returned to him," and consequently it does not appear among these papers.
In another letter, dated April 24th, 1840, the Chevalier de Argaiz refers to certain resolutions of the United States Senate passed the 15th of the same month, commonly called Mr. Calhoun's resolutions. I showed the other day, that if these principles are just, and if they have any application to this case, Lieut. Gedney had no right to seize the vessel at all. The resolution declares that—
" A ship or vessel on the high seas, in time of peace, engaged in a lawful commerce, is, according to the laws of nations, under the exclusive jurisdiction of the State to which her flag belongs; as much so as if constituting a part of its own domain ;" and " 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 penalty which the laws of nations extend to the unfortunate under such circumstances."
Here it is plain that the vessel was in the hands of the Africans, it was not under the Spanish flag, they were at peace with the United States, their voyage is lawful, the personal relations established among the persons Oh board were that the Africans were masters and the Spaniards captives subjects;—perhaps by the laws of Mendi they were slaves. So much for the resolutions, which the Secretary of State says coincide "with principles which the President considers as founded in law and justice," but which does not alter "the determination he found himself obliged to make on the reclamation" made for the Amistad " and the property found on board of her."
I will now make a few observations on the passport, or permit, as it has been called, which is relied on as of authority sufficient to bind this Court and Government to deliver up my clients irrevocably as slaves, on a claim of property by Ruiz and Montes... Here we have what appears to be a blank passport, filled up with forty nine Spanish names of persons, who are described as ladinos and as being the property of Don Jose Ruiz. Now, this on the face of it is an imposture. It is not a passport, that can be inspected as such by this Court, or by any tribunal. It appears on the face of it to be a passport designed for one person, a man, as there are blanks in the margin, to be filled up with a description of the person, as to his height, age, complexion, hair, forehead, eyebrows, eyes, nose, mouth, beard, and particular marks. This particular description of the person is the very essence of a passport, as it is designed to identify the individual by the conformity of his person to the marks given; and a passport is nothing, and is good for nothing, if it does not accord with the marl;s given. The man who presents it must show by this accordance that he is the person named Every body who has ever had occasion to use passports knows this. We are not in the habit of using passports in this country; you may go through the country from State to State, freely without any passport to show who and what you are and what is your business. But throughout the continent of Europe, passports are everywhere necessary. At every town you show your passport to a public officer, who instantly compares your person with the description' and if it corresponds, you proceed, but if the description varies from the reality, you cannot pass. That is the nature of a passport. It says, let the person who bears these marks pass the custom house, or the guard, as the case may be. And its validity depends on the accuracy of the description.
I once had occasion, many years ago to see the operation of these things in a very remarkable case. I was a passenger in n merchant vessel, bound to the north of Europe. In passing through the Sound, at Elsinore, we were arrested by a British squadron, who brought us to, and sent a lieutenant on board to examine our crew. He ordered all the men to be mustered on deck, and the captain had no alternative but to comply. It was a most mortifying scene to an American. Every American seaman was obliged to show his protection, the same thing at sea as a passport on the land, to secure him from impressment by British cruisers. The officer examined every man carefully, to see whether his person corresponded with the description in his protection. He finally found one young man, who was a native of Charlestown, Massachusetts, within ten miles of where I was born; but his description was not correct, whether through the blunder of the man who wrote it, or because he had taken another man's protection, I do not know, but the officer said he had a good mind to take him, and if I had not been on board, as the bearer of a public commission in the service of the Government, I have no doubt that man would have been taken, and compelled to serve on board a British man of war, solely for the want of correspondence of the description with his person. I mention this to show that the value of a passport, according to the rules of those countries where such things are used, depends on the description of the person, and this is all left blank in the paper here presented us as a passport. There is not a particle of description by which even a single individual named could be identified. It is not worth a cent. I do not say it is a forgery, but I say its incompetency to answer the purpose of n passport is apparent on the face of it. Who knows, or how is this Court to ascertain, that the persons named in this paper are the same with those taken in the Amistad? No court, no tribunal, no officer, would accept such a document as a passport. And will this Court grant its decree in a case affecting both liberty and life on that paper ? It is impossible.
I now come to the case of the Antelope, as reported in 10 Wheaton, 66, and I ask particular attention to this case, not only because it brings a show of authority in favor of the delivery up of slaves, but because I feel bound to entreat the Court, whether they find a principle settled by that case or not, to settle the question now upon further and mature consideration. Chief Justice Marshall said, expressly, in delivering the opinion of the Court, that, as the Court was divided, " no principle is settled." If there was a principle settled, and that was in favor of delivering up persons held as slaves by foreign laws, I ask this Court to re examine that principle and settle it anew. And if, upon re examination, by what [ should deem the greatest misfortune to this country, the Court should be divided in this case, as it was in that, I respectfully ask your Honors to give your separate opinions, with the reasons. I would not call in question the propriety of the determination of the Court in that day, severally, to withhold their reasons from the public; the state of the matter is now materially altered. It has become a point in which the morals, as well as the liberties of this country, are deeply interested. The public mind acquiesced before, in postponing the discussion, but now it is no longer a time for this course, the question must be met, and judicially decided.
THE CASE OF THE ANTELOPE REVIEWED.
The case of the Antelope was of so very extraordinary a character, and the decisions of the District, Circuit, and Supreme Courts of the United States, on the principles involved in it, were so variant from and conflicting with one another, that a review of its history will disclose, eminently, the progress of that moral, religious, and political revolution in the opinions of mankind which has been, from a period coeval with that of North American Independence, struggling against the combined powers and dominions of the earth and of darkness for the suppression of the African slave trade.
In the month of December, 1819, at a time when piracy, from her sympathetic and favorite haunts of Chesapeake bay, and of Cuba, was habitually sallying forth against the commerce of the world, but chiefly under the many colored banners of the newly emancipated colonies of Spain, transformed into a multitude of self constituted sovereign and disunited States, capturing wherever they could be found the trading vessels of Portugal and of Spain, a privateer, named the Columbia, commanded by a citizen of the United States named Metcalf, came into the port of Baltimore under the flag of Venezuela—there clandestinely shipped a crew of thirty or forty men, not one of whom had ever owed allegiance to the Republic of Venezuela, and sailed in search of adventure, to pounce upon the defenseless upon any and every ocean for the spoils. She had scarcely got beyond the territorial jurisdiction of the United States when she changed her name of Columbia for that of Arraganta, hoisted the flag of Artigas, then ruler of the Oriental Republic of La Plata, and proceeded for the slave coast of Africa—a mighty huntress, and her prey was man. There she fell in with sister pirates in abundance—first an American, from Bristol, Rhode Island, and borrowed twenty five Negro captives from her; then sundry ostensible Portuguese vessels, from which she took nearly two hundred; and lastly, a Spaniard from Cuba, fitted out some months before by a slave trading house at the Havana, to catch a yet lawful human cargo from a region south of the equator; for the trade north of the equator had even then been declared unlawful by Spain. The name of this vessel was, at that time, the Antelope; and with her and her living merchandise the Arraganta steered for the coast of Brazil, for a market. There the Arraganta was shipwrecked; her master, Metcalf, either drowned, or made prisoner with the greater part of his crew; while the remainder, under the command of John Smith, a citizen of the United States, transhipping themselves and all their surviving African captives into the Antelope, changed her name to that of the General Ramirez, and stood for the southern coast of the United States, and a market.
In the month of June, 1820, this vessel, thus freighted, was found hovering on the coast of Florida, with the evident intention of surreptitiously introducing the Negroes and effecting the sale of them within the United States. She was there in flagrant violation of two classes of their laws—those intended to suppress the unlawful interference of our citizens in the civil war then raging between Spain and her South American Colonies contending for their independence, and those prohibiting their participation in the slave trade, and denouncing it as piracy.
She was reported to Captain John Jackson, then cruising on the same coast in the Revenue Cutter Dallas, as a vessel of piratical appearance. He, thereupon, boarded her; and finding her full of Negro slaves, and commanded by John Smith, holding forth at once a privateering commission from Artigas, and a protection as n citizen and seaman of the United States, he took possession of her, and brought her into the port of Savannah, in the judicial district of Georgia, for adjudication.
Upon this plain and simple statement of facts, can we choose but exclaim, if ever soul of an American citizen was polluted with the blackest and largest participation in the African slave trade, when the laws of his country had pronounced it piracy, punishable with death, it was that of this same John Smith He had renounced and violated those rights, by taking a commission from Artigas to plunder the merchants and mariners of nations in friendship with his own; and yet he claimed the protection of that same country which he had abandoned and betrayed. Why was he not indicted upon the act of 15th May, 1820, so recently enacted before the commission of his last and most atrocious crime?
And can we choose but further exclaim—if ever hapless African, Kidnapped into slavery by one gang of ruffians, and then stolen by another, and by them attempted to be smuggled into our country as slaves, and by n fortunate casualty brought within our jurisdiction and the beneficent operation of our emancipating law*, was entitled to the blessing of freedom, and the right of being transported under our national protection to his native land, so was every individual African found by Captain Jackson on board of the Antelope, and brought within the jurisdiction of this Federal Union. Why were they not instantly liberated and sent home to Africa by the act of March 3d, 1819. Alas! far other. wise was, in the judicial district of Georgia, the disposal of this pirate, robber, and traitor to his country! Instead of being indicted for all or any one of his many violations of the laws of the United States, of nations, and of humanity, he was not only suffered to go at large, entirely unmolested, but was permitted to file his claim, before the District Court of the United States in Georgia, for the restitution to him of the Antelope and all her living cargo, as captured jure beli), by virtue of his commission from Artigas. This claim was, indeed, dismissed, with costs, by the judge of the District Court, William Davis. Smith appealed from that decision to the Circuit Court, the presiding judge of which, William Johnson, confirmed the decision of the District Court, and spoke with suitable severity, not of the wickedness, but of the absurdity of Smith's pretension. And here, and in freely commenting hereafter upon the opinions and decisions upon this case, of these two judges, William Davis and William Johnson, both long since deceased, truth and justice require the remark, with all the respect due to their memories as upright judges and honorable men, that they were both holders of slaves, adjudicating in a State where slavery is the law of the land. If this circumstance may account for the fact, that the ministers of national justice in Georgia slumbered over the manifold transgressions of John Smith, for, which he never was prosecuted, it will account no less for that division of opinion in the Supreme tribunal of the Union, which veiled from public examination and scrutiny the reasons of each judge for his own opinion, because, as the Chief Justice declared, NO PRINCIPLE WAS SETTLED. John Smith did not venture to appeal from the decisions of the District and Circuit Courts against his claim to the Supreme Court of the United States. His plunder slipped from his hands; but his treachery to his country for a commission from Artigas, his buccanier and slave trade piracies, though not even undivulged crimes, yet remained unwhipped of justice.
On the 27th of July, 1820, Captain John Jackson, in behalf of himself, and of the officers and crew of the Revenue Cutter Dallas, filed in the District Court a libel against the Antelope, or General Ramirez, for forfeiture, under the act of Congress of 20th April, 1818, prohibiting American citizens from engaging in the African slave trade.
At the same Court, Charles Mulvey, vice consul of Spain, and Francis Sorell, vice consul of Portugal, at Savannah, filed each a libel for restitution, the former of 150, the latter of 130 African Negroes, composing the cargo of the Antelope. To these two libels Richard Habersham, district attorney of the United States, interposed in their name a claim to the freedom of all the Negroes, on the ground that some American citizen was interested or engaged in their transportation from Africa.
The Spanish vice consul claimed the vessel and all the Negroes in behalf of the original fitters out of the Antelope, for the slave trading voyage, at the Havana.
And Captain Jackson claimed salvage for all the Negroes who might be adjudged to the Spanish and Portuguese vice consuls; and twenty five dollars a head for all those who might be declared free, according to the act of Congress.
The judge of the District Court, after rejecting the claim of John Smith, on the ground of the illegality of the fitting out of the Columbia, or Arraganta, at Baltimore, and thereby settling the principle, that no capture made by that vessel could be legal, seems to have forgotten, or overlooked, the violation by the same John Smith of the laws of the United States for the suppression of the slave trade; at least, so far as concerned all the Negroes on board the Antelope, excepting only a small remnant of twenty-five, which had been taken from the American slave trader, the Exchange, from Bristol, Rhode Island. John Smith had made no attempt to smuggle these into the United States separate from the rest. His attempt had been to smuggle them all in. Why, then, should those taken from the American vessel alone be declared free, and those taken from the Spaniards and Portuguese doomed to perpetual slavery?
The judge hunted up sundry old decisions in the Supreme Court of the United States, and, finally, the case of the Josafa et Segunda, 5 Wheaton, 338, for a principle "that, upon a piratical or illegal capture, the property of the original owners cannot be forfeited for the misconduct of the captors in violating the municipal laws of the country where the vessel seized by them is carried." The application of which principle to the rights of the respective parties in the case of the Antelope was, that the property of the Spanish owners of the Antelope could not be forfeited by the misconduct of John Smith in capturing it, in violation of the laws of the United States, by virtue of a commission from Artigas. Thus far the principle was correctly applied; but to that other misconduct of John Smith, the attempt to smuggle these Negroes into the United States, by which they became forfeited, and made free by the law, whoever might have been their owner; to that misconduct, the precedent of the Josafa et Segunda had no application whatever, and it was altogether overlooked in the decision of the district judge, although he decreed freedom to the chance chosen survivors of the twenty five Negroes of the very same cargo, taken from the American vessel, though forfeited and liberated by the very same attempt of John Smith to smuggle them into the United States for sale. It was perfectly immaterial to the question of forfeiture and liberation to whom all or any of the Negroes had originally belonged. It was the attempt to smuggle them which induced their forfeiture by the rigor, and their consequent liberation by the beneficence, of the law.
But having once introduced this entirely extraneous question, to whom the Negroes on board the Antelope, when captured by Captain Jackson, had originally belonged the District Judge proceeded, upon such evidence as he deemed sufficient, to decide, that those captured in her by the Arraganta, were the property of Spaniards, and without one title of evidence, to infer, that all the Negroes taken from vessels under Portuguese colors, had been the property of Portuguese subjects, unknown; and upon these conclusions and assumptions, to adjudge all the Negroes, save the scanty surviving remnant of twenty five taken from the Exchange of Rhode Island, to the Spanish and Portuguese Vice Consuls.
At this distance of time, who can read such an adjudication of an American judge, without amazement.
The claim of C. Mulvey [Spanish Vice Consul] was therefore sustained to the Antelope, and to as many of the Negroes, as should appear to be remaining of those found on board of her at the time of her capture by the Arraganta.
The libel of F. Sorrell, the Portuguese Vice Consul, was sustained against so many of the slaves as should appear to remain of those taken by the Arraganta from Portuguese vessels.
And it was further ordered with assent of parties, (that is, of these two parties the Spanish and Portuguese Vice Consuls, and well they might assent!) that the chim of John Jackson to salvage, should be sustained as regarded the Negroes claimed by and adjudged to them—and as regarded those adjudged to the United States, to an allowance of twenty five dollars for each according the Act of Congress of 3d March, 1819.
This decree was pronounced on the 2lst of February 1821— and the clerk of the court was directed on or before the 26th day of the same month to report to the court the number of Spanish and Portuguese Negroes in the hands of the marshal, distinguishing the Negroes respectively belonging to each. He was also required to designate the very small number adjudged to the United States, that is, to the blessed enjoyment of themselves and their own liberty; and associating with himself two resident merchants, was at the same time to report the quantum or proportion of salvage to be allowed to Captain Jackson for the Negroes thus reputably and substantially sold by the judicial authority of the United States to the Spanish and Portuguese Vice Consuls.
This unblushing bargain and sale of human captives, entitled at least by the intention of the United States laws to their freedom' was the first incident which brought to a pause the legal standard of morality of a Connecticut District Judge of the United States in the case of the Amistad captives. An estimate in dollars and cents of the value at New Haven, of from two to three hundred living men and women, for the purpose of allowing salvage upon them as merchandise, was too much for the nerves of a Yankee judge. The authority of the case of the Antelope was in this particular no precedent for him. The very proposal shocked his moral sense, and he instantly decided that men and women were not articles for a price current in the markets overt of Connecticut.
In the markets of Savannah, nothing was more simple. The clerk of the District Court, with his two associated resident merchants, in obedience to the order of the judge appraised the Negroes taken from the Spanish and Portuguese vessels at three hundred dollars per head, making the aggregate of sixty one thousand five hundred dollars [for 205 souls]; and they were of opinion that there should be an allowance of one fourth of said sum to Captain Jackson, his officers and crew, for salvage on the said Negroes.
Seventy five dollars per head! Fifteen thousand three hundred and seventy five dollars for two hundred and five men and women! What a revolution in the relative value of slaves and of freemen, since the age of Homer! In the estimate of that Prince of Grecian Poets.
Jove fix'd it certain that whatever day
Makes man a slave, takes half his worth away—
and in the political statistics of the author of the Declaration of Independence the degradation of the character of man, by the infliction upon him of slavery is far greater than is asserted by the blind old rhapsodist of Smyrna. But here we have an inverted proportion of relative value, and Captain Jackson, by the decree of a Judicial Court of the United States receives twenty five dollars a head for redeeming one parcel of Africans from slavery to freedom, while at the same time he was to receive seventy five dollars a head for reducing by the same act two other parcels of the same company from freedom to slavery!
Nor was the manner in which the clerk of the District Court executed the order to report the relative numbers of the three classes of the captured Africans, the least extraordinary part of these proceedings.
He reported that two hundred and fifty eight Negroes had been delivered by Captain John Jackson, Commander of the Revenue Cutter Dallas, on the 25th of July, 1820, to the marshal of Georgia, from on board the General Ramirez [the Antelope.] That of that number forty four had died in the space of seven months —one was missing and one discharged by order of court, and that the marshal returned two hundred and twelve Negroes which remained to be apportioned.
What kind become of the missing one neither the clerk nor the judge seems to have thought it worth his while to inquire—why should they ? it was but one man—and that man a Negro ! no further trace of him appears upon the record.
Neither was it thought necessary to record the reason of the favor bestowed by the court upon one other man in ordering his discharge. The very nature of the order is its own justification.
But mark the mortality of the Negroes! out of 258, four deaths in the space of seven months! and that, not while crammed between the decks of a slaver in the middle passage, but on the soil of the American Union, in the mild and healthy climate of Georgia—in the custody of an officer commissioned by the President of the United States, and under the protection of their judicial magistracy. In the case of the Amistad, the mortality ceased, as soon as the captives were admitted to the privilege of breathing in the atmosphere of freedom.
But if the death of one man in six, in the space of seven months, is deeply distressing to the sympathies of our nature, what shall we say to a mortality of eighteen out of twenty five, which the clerk reported as the proportion of deaths among the Negroes taken from the American vessel, the Exchange, and who were by the final decree of the judge to be liberated? The clerk in his report denominates them American Negroes, and he reduces their number to SEVEN. Seven African captives out of two hundred and fifty eight, was the number to whom the benignity of the laws of the American Union enacted for the suppression of the African slave trade, and expounded by the District Court of the United States in Georgia, would have extended the inestimable blessings of freedom and restoration to their country!
The clerk had been required to report the number of Spanish, Portuguese, and American Negroes— distinguishing those respectively belonging to each of the se classes. He could obtain no evidence worth a straw upon which to found his report, the Negroes were all huddled together in one crowd John Smith, the pirate, was the only witness who could tell him which were the Negroes taken out of the American vessel, and he told him that sixteen out of the twenty five had died, before the capture of the Antelope by Capt. Jackson. The clerk reported accordingly, and added two to the number of deaths, as the average loss since the 25th of July; that is, since they had been in the custody of the marshal.
It further appears from his report that the whole number captured by the Arraganta had been 331, of which 213 were Portuguese, 93 Spanish, and 25 American. That of the whole number 119 had died, but in what proportions from the general classes he could not ascertain. John Smith testified that sixteen of the 25 American Negroes had died before the Antelope was taken by Captain Jackson, and the clerk guessed that two more had died since, because that was the average loss of 9 to 44 out of 258. But neither John Smith nor any one else could point out the individual survivors of each separate class, and the clerk therefore reported that there had been captured by the Arraganta 213 Portuguese Negroes, of which the average loss was 71;—93 Spanish Negroes of which the average loss was 30, and 25 American Negroes, of whom the deaths attested by John Smith were 16, and the subsequent average loss 2, leaving as before stated 212 to be apportioned—that is, 142 to the Portuguese Vice Consul, 63 to the Spanish Vice Consul, and 7 to the United States, to be sent home to Africa; freemen by the mandate of our laws.
That the whole 212 were entitled to the benefit of the same laws, I cannot possibly doubt—but such was not the decision of the District Judge. Exceptions were taken to the report of the clerk, by the District Attorney of the United States, Richard W. Habersham, and by Spanish Vice Consul Mulvey. The District Attorney still claiming the freedom of all the Negroes, and objecting to the allowance of 75 dollars a head to Captain Jackson for salvage, though not to the allowance of 25 dollars a head for their liberation. The Spanish Vice Consul insisting that the number of slaves allowed to the Spanish claimants was too few and not supported by any testimony in the case—and that the allowance to Captain Jackson for salvage was too high, and ought to be regulated by the act of Congress in relation to the compensation given in case the said slaves had been decreed to be delivered to the United States.
The Judge confirmed the report of the Clerk in all its parts; and the District Attorney, in behalf of the United States, and the Spanish Vice Consul, in behalf of the Spanish claimants, appealed to the Circuit Court, then next to be held at Milledgeville on the 8th day of May, 1821.
In these decisions of the District Court, is it possible to avert one's eyes from the glaring light of an over ruling propensity to narrow down, if not wholly to nullify, the laws of the United States for the suppression of the African slave trade? To sustain the claim of the Spanish Vice Consul, the irrelevant question to whom the Antelope had originally belonged, was introduced; and upon that was engrafted the deeply controverted question, whether the African slave trade was or was not contrary to the law of nations. To redeem from forfeiture the Antelope and the Negroes captured in her by the Arraganta, the judge resorted to an argument of counsel in the recently reported case of she Josefa Segundas, (Wheaton, 338,) where it was said, that as piracy can neither divest nor convey property, a pirate cannot, by a subsequent violation of the laws of his own country, forfeit the property of which he has acquired possession by preceding piracy. This seems equivalent to a principle that a second act of piracy protects the pirate from punishment for the first. However conformable this maxim may be to the legal standard of morality, the Supreme Court did not so decide in the case of the Josefa Segunda. They decided, that the capture of a Spanish vessel and Negroes by privateer, with a commission from Arismendi, under the Republic of Venezuela, was not piracy; and that the Josefa Segunda, a Spanish vessel, and her cargo of Negroes, captured by authority of such a commission, were forfeited by a subsequent attempt of the captors to smuggle them into the United States, though taken from the Spanish owners only by the Venezuelan commission from Arismendi. Now the Columbia had entered Baltimore, and there enlisted her crew under those identical colors of Venezuela, and, DO doubt, with a commission from the same Arismendi. When metamorphosed into the Arraganta, she took the Antelope and her Negroes, by a commission from Artigas, quite as efficient to legitimate a prize as that of Arismendi; and John Smith, when captured with the Antelope and her Negroes, by Captain Jackson, produced this commission from Artigas as his warrant for his possession of the vessel and the slaves. As between the Arraganta and the Antelope, therefore, the capture of the latter by a commission from Artigas was not piratical but belligerent, it did divest the Spanish owners of the property and vest it in the captors, at least sufficiently to make it forfeitable by their subsequent attempt to smuggle it into the United States; and the decision of the Supreme Court, in the case of the Josefa Segunda, instead of sustaining that of the District Judge, in the case of the Antelope, is an authority point blank against it.
For the allotment of 142 of the Negroes to the Portuguese Vice Consul, there was not even the apology of a Portuguese claimant, other than the Vice Consul himself to the property. There was not a shadow of evidence that they were the property of Portuguese subjects, and none were ever found to claim them. He took the testimony of the capturing crew, that some of them were taken from vessels under Portuguese colors; and as he had no evidence that Portugal had then prohibited the slave trade, he took it for granted that the Negroes were all slaves, and, as such, he decreed that they should be delivered to the Vice Consul.
With regard to the question, whether Slavery was or was not contrary to the laws of nations, his decision was such as might be expected from a judge, himself a holder of slaves, in a land where slavery has the sanction of law. The question, as I have endeavored to show, did not belong to the case. "But it is contended," (says the District judge) " on the authority of some recent decisions in the British Admiralty Court, that Africans are to be considered free, until it is shown that they are slaves, and that the burden of proof is with those who set up a claim to them. The doctrine may be correct in England, since there Negroes have al. ways been held to be free, except in cases where they have voluntarily entered into engagements binding them to service. And yet, inconsistent and contradictory as it may be, slavery has been recognized in all the British American colonies.
" But it does not appear to me that I can admit the proposition in the form and manner in which it is here presented. The period is not very remote when all the Governments of Europe, and the several States of the United States when they were British colonies, and many of them after they became independent, recognized slavery. But a few years have elapsed since the Government of the United States permitted her citizens to engage in the African trade. Under such a state of things, it appears to me that this Court is bound to consider the unfortunate Africans, when found in the possession of the subjects or citizens of any Government which has heretofore permitted this traffic as slaves, until the contrary be shown. That this trade, however inhuman it may be, and however obnoxious it is to every benevolent feeling, must now be considered legal, notwithstanding its injustice, until it is shown to have been prohibited by that Government whose subjects claim the right of engaging in it.
"When it shall have been ascertained that the different Governments of the civilized world have consented to abolish the trade or after it shall have been ascertained that any particular State or Government has determined to abolish it, this Court would consider the claims set up in favor of Africans found in the situation of those before the Court, in a different point of view. In the one case they would, I think, uniformly be considered free, until the contrary was shown; in the other case, they would be so considered when they were found in the possession of the subjects or citizens of that Government which had determined to abolish the trade.
" If it could be made to appear to this Court that, at the time these Africans were taken from the possession of the Spanish and Portuguese claimants Spain and Portugal had agreed to prohibit their subjects from engaging in the trade, this Court, I think, would be bound to restore to these people their liberty.
"It is true this Court will not enforce the municipal laws of another country, by punishing the subjects of that country for the infraction of them; but this Court could feel bound to respect the rights of Africans no less than it could respect the rights of any other class of persons. Spain, however' had not, at the time I am speaking of, abolished the trade to Africa, although she had placed it under certain restrictions. Can it be permitted to this Court to examine the commercial regulations or the conventional engagement of Spain?"
It is unnecessary further to repeat verbatim et literatim this argument of the District judge to sustain his decree. Every word and letter of it teems with anxiety to sustain the institution of Slavery, and to prostrate instead of enforcing the laws of the United States for the suppression of the slave trade. What he calls certain restrictions placed on the trade by Spain, was the total prohibition of it north of the equator, even then stipulated by Spain in a treaty with Great Britain, and enacted accordingly by her law. But what of that? The judge admits that the trade is inhuman, that it is obnoxious to every benevolent feeling, but he is bound to consider it legal, notwithstanding its injustice, because many years before it had been practiced by Great Britain' and not many years before by the United States themselves." Is this reasoning for a Court of JUSTICE? When all the civilized nations of the earth shall have abolished the African slave trade, the judge thinks that captured Africans would be considered free, unless proved to be slaves: and if Spain and Portugal should abolish the slave trade, he thinks the burden of proof that Negroes captured in their vessels were slaves, would rest upon their captors. In that case, the Court would respect the rights of Africans as much as those of any other class of persons; but, until then, how could the Court be permitted to examine into treaty stipulations of Spain, or into any restriction imposed by Spain upon the traffic of her subjects in slaves ?
Such was the reasoning of a slave holding judge upon slavery and the slave trade, and by such reasoning did he' out of two hundred and twelve Africans, forfeit to the United States, to receive from them the blessing of freedom, and restoration to their native country reduce the number who should enjoy that privilege to seven individuals, consigning all the rest to perpetual, hopeless Spanish and Portuguese slavery!—Seven freemen to two hundred and five slaves!
The appeal from these decrees to the Circuit Court of the United States came up before Judge William Johnson, in May, 1821. His opinions differed toto coelo from those of the District judge. He increased the number of the Africans to be liberated, as survivors of the twenty five taken from the American vessels, from seven to sixteen: he rejected the incredible testimony of the pirate, John Smith, that while the mortality of the whole cargo of Negroes had averaged not more than one in three, the number of deaths among those taken from the American vessel had amounted to two thirds of the whole. He reversed the decree of the District judge, which had allotted one hundred and forty two Negroes to the Portuguese Vice Consul; and reserved his claim for further proof, which never was produced. He reduced the allowance of salvage to Captain Jackson, and the crew of the revenue cutter, to fifty dollars a head for the Negroes to be delivered to the Spanish Vice Consul, and expressed a strong doubt whether it was a case for salvage at all. He intimated, very significantly, an opinion, that if a claim had been interposed by an agent of Venezuela, or of the Oriental Republic, the capture of the Antelope, by Captain Jackson, must have been pronounced illegal—a mere marine trespass—punishable in damages rather than rewardable for salvage; and yet he allowed him a salvage of fifty dollars a head for the Negroes surrendered to the Spanish Vice Consul. He concurred, however in the most exceptionable of all the opinions of the District judge; namely, that because John Smith had no forfeitable interest in the Antelope and in the Negroes, originally belonging to Spanish owners, but then in his possession, and which he was when captured, in the act of smuggling into the United States; therefore they were not forfeited at all, and must be delivered up to the Spanish Vice Consul. The judge of the Circuit Court, sitting alone, after stating the circumstances of the capture by Captain Jackson, and the claims of the respective parties, promptly and without hesitation pronounces, that John Smith was taken in the act of violating the laws of the United States for the suppression of the slave trade; and that, " if the case rested here there would be no difficulty in adjudging the vessel forfeited, for taking these Africans on board at sea, with intent to dispose of them as slaves. But this, although perhaps literally within the provisions of the statute, is obviously not within the intent and meaning." Why perhaps, literally within the provisions of the statute? No reader of the English language can read the provisions of the statute and entertain a doubt that they extend literally to the case—why not within its intent and meaning? Never was an obiter dictum of a judge more peremptory or more gratuitous! There is not a word, not a letter in the statute to authorize the intention of shielding from forfeiture a slave trading smuggler, because the captain was not her owner. The forfeiture attaches to the action, the violation of the laws against the slave trade, and to the instrument used for that violation, without inquiring to whom that instrument belongs. The mischief to be remedied by the law, was the introduction of African slaves into the United States.—The vessel is the instrument with which the violation of the law was effected, and by which the forfeiture was incurred. Neither justice nor policy could require an exemption from the forfeiture, because the captain in possession of the vessel and employing her in violation of the law, was not her lawful owner. The judge says, there are reiterated decisions of the American courts, that a capture made under an illegal American outfit is not belligerent, but void, and producing no change of right; and from this it followers, that Smith had no interest on which the forfeiture inflicted by law for this offense could attach. The judge names no one of these reiterated decisions, and we have seen that the only one specifically cited by the District judge, in support of the same principle, was a clear authority against it. There were no doubt decisions that captures of friendly foreign vessels, by American privateers illegally fitted out in our ports) and bearing South American commissions, did not so divest the property, but that it might be restored by our courts, in controversy between the captors and the original owners—but that the laws of the United States, prescribing penalties of forfeiture for crimes, should be violated with impunity, because the slave smuggler had stolen the instrument with which he committed the crime! No! l trust the Antelope is, and will for ever remain, the solitary case in which such a principle can claim the sanction of the courts of the United States!
The wild and glaring inconsistency not only between the opinions and decrees of the District and Circuit Courts of the United States, in the case of the Antelope, but between the opinions and decrees of each of those Courts and itself discloses in crystal transparency an internal conflict of mind between the duty of suppressing the African slave trade, and the desire to maintain and fortify the institution of slavery, little auspicious to the composure of justice or to the impartial exercise of the judicial faculty. Both the Judges profess a sentimental abhorrence of the trade. The Circuit Judge discusses at great length the question whether the slave trade is contrary to the Law of Nations. He admits that the British Court of Admiralty have of latter years asserted a doctrine of this nature; but after commenting sarcastically upon the motive of the British Judges and Government, and descanting upon mental dependence, and interference with the family concerns of others, in which no nation has a right to volunteer, he quotes a passage from the decision of the British Court in the case of the Amedee [Actor, 240,] and says, "I must until better advised assume an opposite language."
" I feel," says he, " no inclination to justify or even palliate the trade. I thank God I have lived to see its death blow. But it was from religion or policy, not from national humanity, that the blow was received. On the contrary, British policy struggled against the effort to abolish it, and all the efforts of the Quakers, the Methodists and Mr. Wilberforce proved abortive until the horrors acted in St. Domingo opened the eyes of Government to consequences that it became political to guard against. From that time, philanthropy like the pent up vapor, began freely to diffuse itself, and extended its spread even to the British Court of Admiralty."
"That slavery, (says again the Judge of the Circuit Court,) is a national evil no one will deny except him [he] who would maintain that national wealth is the supreme national good. But what" ever it be, it was entailed upon us by our ancestors, and actually provided for in the constitution first received from the Lords Proprietors under which the southern colonies were planted. During the Royal government it was fostered as the means of improving the colonies, and affording a lucrative trade to the mother country, and however revolting to humanity, may be the reflection, the laws of any country on the subject of the slave trade are nothing more in the eyes of any other nation than a class of the trade laws of the nation that enacts them.',
Both the Judges acknowledge the inherent, inextinguishable wickedness of the trade, and both have an invincible repugnance to consider it contrary to the laws of nations. The Judge of the District Court admits that the doctrine that Africans taken at sea must be presumed to be free, until proved to be slaves, may be correct in England, but cannot entirely recognize it in the State of Georgia. The Judge of the Circuit Court, repudiates it altogether—says he must until better advised hold opposite language— assails with great bitterness the decision of Sir William Grant in the case of the Amedee: thanks God that he has lived to see the death blow of the African slave trade; but allows no credit to Great Britain on the score of humanity for striking it. No! it was religion or policy. The horrors of the scenes in St. Domingo had alarmed the British Government for the safety of their West Indian colonies, and so the pent up vapor of philanthropy was let loose and extended even to the British Courts of Vice Admiralty. As for slavery, every one knows it an evil, but it was entailed upon us by our ancestors; it was provided for by the constitution granted by the Lords Proprietors; it was encouraged from motives of policy by the Royal Government, and what right has any one to question our practice of it now? It was once lawful— who shall say it shall not be lawful forever ?
Upon the tone of this judicial argumentation I shall not indulge myself in commenting; but in comparing the spirit of the reasoning of these two judges with that of Sir William Grant in the decision which they reject and oppose, how stands the account of moral principle ? The reasons of the British Judge glow with the flame of human liberty, those of the American Judges are wedged in thrilling regions of thick ribbed ice. Vituperation of the slave trade in words, with a broad shield of protection carefully extended over it in deeds. Slavery acknowledged an evil, and the inveteracy of its abuse urged as an unanswerable argument for its perpetuity: the best of actions imputed to the worst of motives, and a bluster of mental energy to shelter a national crime behind a barrier of national independence; these are the characteristics exhibited by American in collision with British Admiralty Courts. Or again, examine the respective opinions and decrees in their beating upon the trade itself: those of the British Court went directly to its suppress sign; those of the American Courts, to its encouragement, security and promotion. The British Court has at least the consistency of harmonizing practice and profession. The American Courts profess humanity and practice oppression.
The decrees of the American Circuit Court are if possible more extraordinary than its opinions. After deciding that the Negroes taken by the Arraganta in the Antelope, and from the Portuguese vessels shall be delivered to the Spanish and Portuguese Vice Consuls, because he must maintain that it is A question altogether inter altos, whether the Spanish and Portuguse nations had authorized the traffic in which their vessels were engaged, the Judge adds: " Not so as to the American vessel. I have a law to direct me as to that, and the slaves taken out of her must be liberated." The laws had literally directed that all the Negroes whom John Smith had attempted to smuggle into the United States for sale, should be liberated, but the Judge had pronounced that this was not its intent and meaning. But now another difficulty occurs. No competent witness can tell which of the surviving Negroes were taken from the American vessels, which from the Portuguese vessels, and which from the Antelope. The individuals belonging to each of the three vessels cannot be identified. How shall he distribute his doom of freedom and of slavery among the prize goods and the pirated merchandise of John Smith? With a full consciousness of the gross and glaring injustice of the decree he says, THE LOT MOST DECIDE ! Where did he get his law for that? He says he has a law to direct him, and he flies in the face of that law to enslave hundreds and emancipate sixteen human beings on the cast of a die. Let me do no wrong to his words—hear them.
" I would that it were in my power to do perfect justice in their behalf. BUT THIS IS HOW IMPOSSIBLE. I can decree freedom to a certain number, but I may decree that to A, which is the legal right of B. It is impossible to identify the individuals who were taken from the American vessel, and yet it is not less certain that the benefit of this decree is their right end theirs alone. Poor would be the consolation to them to know that because we could not identify them we had given away their freedom to others.— Yet shall we refuse to act because not gifted with the power of divination? We can only do the best in our power. The lot must decide their fate, and the Almighty will direct the hand that acts in the selection. But I cannot consent to reduce this number from twenty five to nine, [to seven,] for this depends upon testimony that was interested to deceive, since in those twenty fire, Smith could have no hope to sustain his claims though he might succeed as to the residue. The reduction of the number must therefore be averaged upon a scale with the rest, and as they consisted of twenty three men and two boys, the lot must select them accordingly from the men and boys.
" Some doubts have been stated as to the national character of the vessel and as to the Spanish and Portuguese interest in the slaves. On the vessel I entertain no doubt. She was captured as Spanish, and the evidence is sufficient to prove the Spanish interest in her—and the slaves taken on board of her, must necessarily follow her fate. But I am induced to think that the evidence preponderates to prove that there were but ninety three, and, that number must also be reduced by the general scale of loss. Concerning the residue, the evidence appears so conclusive, that reluctant as I feel to keep the case open I cannot adjudge them to the Portuguese Consul, without further proof."
In examining the claim of Capt. Jackson to salvage, the judge becomes exceedingly doubtful whether it is a case for salvage at all, and enters a caveat against his own decree for allowing it. He thinks if a Venezuelan agent had interposed a claim to the property as prize of war, he should have been still more puzzled how to shape his decree than he was. He does not appear to be at all aware that if a Venezuelan agent could have claimed the property as prize of war there could have been no Spanish claimant to whom it could hare been restored. The decree of restoration to Spanish owners was therefore ipso facto equivalent to a decree for salvage, the quantum of which alone remained for consideration. His caveat against his allowance for salvage, was therefore a caveat against his whole decree, and thus far was an approach to the definition of justice—Jus suum cuique.
The decrees of the Circuit Court (for there were two) like the state of mind disclosed by these opinions of the judge, were a chaos of confusion. By the first, delivered on the 11th of May, 1803, the Decree of the District Court, so far as related to the vessel, the Antelope, was affirmed, and so far as related to the slaves imported in her was reversed and annulled. The District Court had decreed the restoration of the Antelope to the Spanish claimants, on the ground that she had not been forfeited to the United States, for the violation of the laws for the suppression of the slave trade. She had not been forfeited, though taken by Captain Jackson in the act of smuggling into the United States for sale near three hundred Africans, and though the law literally declares all Africans thus imported free, and the vessel in which they are imported forfeited to the United States. From this forfeiture the Decree of the District Court, exempted the Antelope, because before the commission of this smuggling piracy she had been taken by another act of piracy, from certain virtuous Spanish slave traders, whose property in her, and consequently in the slaves with which she was laden, was too sacred to be divested either by piratical capture or by the laws of the United States against the importation of slaves, or against the African slave trade. With this part of the Decree of the District Court, the judge of the Circuit Court concurs. The laws of the United States for the suppression of the execrable slave trade, and against the importation of African slaves are baffled, defeated, prostrated, nullified— three hundred wretched victims of that trade, are deprived of the benefit of that just and generous provision that the very act of importing them shall operate in their favor as an act of emancipation. They are re consigned to hopeless and perpetual slavery, from mere reverence for the property of Spanish slave traders! Well might such a decision divide the opinions of the judges of the Supreme tribunal when it came up to them for adjudication. Well might Chief Justice Marshall declare that upon this point no principle was settled, and well may every friend of human liberty, and every sincere wishes for the suppression of that detested traffic indignantly deny that the case of the Antelope can ever be cited as authority for any such principle of law.
But as the Circuit Court, reversed and annulled every part of the decree of the District Court for the disposal and distribution of the slaves, so the final decree of the Supreme Court passed the same sweeping sentence of reversal, upon all the dispositions of the Circuit Court, not excepting that reliance upon an Almighty hand to direct that designation by lot, which was to give to one man what was the right of another, and to emancipate a slave as an equivalent for enslaving a freeman.
The judge of the Circuit Court at first decreed the manner, in which the sixteen freemen should be drawn by lot from the whole surviving cargo of the Antelope, as taken by Captain Jackson. He allowed a certain average portion of the survivors of 93 to the whole number j to be delivered to the Spanish Vice Consul, together with the proceeds of the vessels, and with suitable deductions for the salvage, forthwith—and he reserved for further consideration, and further evidence, till the next term of the court, the final distribution of the residue of the slaves between the Spanish and Portuguese Vice Consuls.
On the 16th of July, 1821, the designation was accordingly made by lot of the sixteen persons drawn from 204, and delivered to the marshal of the United States to abide the order of the court—that is, for emancipation. It does not appear that the Spanish Vice Consul received those which had been provisionally assigned to him. On the 27th day of December, 1821, the judge of the Circuit Court held, together with Jeremiah Cuyler, the newly appointed judge of the District Court in the p]ace of William Davis deceased, a special court, at which the case was argued, and further evidence filed—and on the next day, the court " Ordered and decreed, that the residue of the Negroes imported in the General Ramirez [Antelope] be divided between the Spanish and Portuguese claimants in the ratio of one hundred and sixty six on be half of the Spanish claimants, and one hundred and thirty on behalf of the Portuguese claimants, and that they be delivered up to the agents of the individuals as soon as their respective powers of attorney shall be duly authenticated and filed with the clerk of this court; and they shall respectively comply with the Decorated Order of this court, in paying the expenses incurred on said Negroes in the ratio above stated, and in giving bond and security as therein directed for transporting them beyond the limits of the United States to some permitted port, allowing however six months from the date of the bond instead of three months as in that decretal order aforesaid' and that the proceed sales of the vessel, after deducting the costs of court, exclusive of marshal's bills for maintenance, be paid over to the Spanish claimants."
On the 2d of January, 1822, the District Attorney of the United States, appealed in their behalf to the Supreme Court of the United States from so much of the said decree, of the said Circuit Court as decreed the said African Negroes to the Portuguese Vice Consul.
And thus, in February, 1822, the case of the Antelope, and her cargo, came up for adjudication of the Supreme Court of the United States, the result of which is reported in the 10th, 11th, and 12th volumes of Wheaton's Reports.
Three long years passed away before the first judgment of the court in the case was pronounced. Nearly two years before had elapsed from the capture of the Antelope by Captain Jackson. For little short of the space of five years, nearly three hundred captured Africans had been kept as prisoners of the United States, and to abide the decision of their tribunals for the enjoyment of their inalienable right to liberty. What had they been doing, during this long captivity ? They had been maintained at the cost of the United States, we shall see hereafter to what tune. While the slow, solemn and majestic march of the law was progressing in the search " for the legal standard of morality" to fix the destiny of these human victims, time and chance had disposed of them more mercifully than the decrees of the District or of the Circuit Court. The marshal had bound most of them out to labor in the sweat of their brows, at the erection of fortifications, for the defense of the LIBERTIES of this, our beloved country. The judges who passed upon the fate of these their fellow men—the wives—the children—the property the neighbors—the country, of those judges were armed in panoply against foreign aggression by the daily labor of these stolen Africans, whose lives, and liberty American judges were committing by the legal standard of morality to the cast of a die. During those five years it may be well conjectured that the condition of those captives of the Antelope thus employed was less rigorous and afflicted than it was made by the lottery judgment of the court.
The judgment of the Supreme Court in 1825, reversed this lottery judgment of the Circuit Court. It reversed the whole allotment of one hundred and thirty to the Portuguese Vice Consul, and awarded to them the blessing of liberty intended for them by the law, and yet so harshly denied them by the decrees of the courts below. It reduced the number to be delivered to the Spanish claimants from a ratio of 166 to 93 to the whole number, and vigorously exacted proof to the satisfaction of the Circuit Court of the identity of every individual to be delivered up, as having been of the number taken by the Arraganta in the Antelope. The allowances of salvage and of gratuity to Captain Jackson and the crew of the Revenue Cutter were confirmed. One step further and the case of the Antelope would have conferred unfading glory on the Supreme Court. One step more and the heartless sophistry would have beep silenced, and the cold blooded apathy to human suffering would have been stung into sensibility, which delivered up to Spanish slave traders, a vessel, forfeited by the just severity, and thirty nine Africans emancipated by the benignly, of the laws of this Union for the suppression of the African slave trade.
That step was not taken; there lacked one voice in a divided court to reverse the whole of that decree of the Circuit Court of which so many parts were annulled. One obnoxious principle was left to have its sway in that particular case, because there wanted a casting vote to reverse it—but Chief Justice Marshall himself, in announcing the affimation of the sentence on this point of the Circuit Court, guarded against any and every future attempt to allege it as an authority by explicitly declaring that in this judgment of the court NO PRINCIPLE WAS SETTLED.
The opinion delivered by him on this first decision of the case in the Supreme Court, must be considered as that of the Chief Justice himself. It is in a tone entirely different from that in which the judges of the lower courts had indulged themselves. It contains no angry invective, no sneering sarcasm, no direct defiance, on the motives of the British government, and the solicitude of the British tribunals, for the suppression of the slave trade. It states with a sincere and painful effort of impartiality the reasons for and against the principle that the trade is contrary to the laws of nations. It admits and emphatically declares it contrary to the laws of nature. It cites and analyzes the general decisions upon the same point in the British Courts of Admiralty, and examines them with freedom, but without asperity. The Chief Justice says that as no principle was settled by the affirmance of the decree of the Circuit Court, the judges had concluded not to assign their respective reasons for their conflicting opinions; but was to him was assigned the duty of pronouncing the decree of the court, his argumemt was necessarily on the side of that division which sustained the decree of the Circuit Court, and consequently there is no coumteracting opinion upon the records to balance it. But it almost balances itself. The argument with much hesitation concludes that the African slave trade is not contrary to the Law of Nations —but it begins with admitting, also with hesitation, that it is contrary to the law of nature. He says—" That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labor, is generally admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against his will seems to be the necessary result of this admission.
" Seems, Madam—Nay it is—I know not seems."
Surely never was this exclamation more suitable than on this occasion; but the cautious and wary manner of stating the moral principle, proclaimed in the Declaration of Independence, as self-evident truth, is because the argument is obliged to encounter it with matter of fact. To the moral principle the Chief Justice opposes general usage—fact against right. " From the earliest times war has existed, and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of these was, that the victor might enslave the vanquished——
"Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent cannot be pronounced unlawful.
" Throughout Christendom, this harsh rule has been exploded, and war is no longer considered as giving a right to enslave cap. tires. But this triumph of humanity has not been universal The parties to the modern law of nations do not propagate their principles by force; and Africa has not yet adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves. Can those who hare themselves renounced this law, be permitted to participate in its effects, by purchasing the beings who are its victims ?
"Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he con. eiders himself a part, and to whose law the appeal is made. If we resort to this standard as the test of international law, the question as has already been observed, is decided in favor of the legality of the trade. Both Europe and America embarked in it; and for nearly two centuries, it was carried on without opposition and without censure."
With all possible reverence for the memory of Chief Justice Marshall, and with all due respect for his argument in this case, I must here be permitted to say, that here begins its fallacy. He admits that throughout all Christendom, the victors in war have no right to enslave the vanquished. As between Christian nations therefore, slavery as a legitimate consequence of war is totally abolished. So totally abolished that slaves captured in war, cannot be held by the captors, as slaves; but must be emancipated, or exchanged as prisoners of war.
But Africa, says the Chief Justice, still enslaves her captives in war, and for nearly two centuries, Europe and America purchased African slaves without " opposition and without censure." This may prove that the African slave trade was heretofore, not contrary to the international law of Europe and of Christendom. But how was it, when the Antelope was in judgment before Christian Admiralty Courts in 1820—01, and '25? How is it now?
For nearly forty years it has been prohibited by the laws of the United States, as a crime of enormous magnitude—and when the Antelope was tried by their judicial Courts, it was proclaimed piracy, punishable with death—
It was piracy by the laws of Great Britain.
By the 10th Article of the Treaty of Ghent, concluded on the 84th of December, 1814, between Great Britain and the United States, the traffic in slaves had been declared irreconcilable with the principles of humanity and justice, and both parties did there by stipulate and contract to use their best endeavors to promote Its entire abolition.
On the 8th of February, 1815, the Ambassadors at the Congress of Vienna, from Austria, France, Great Britain, Portugal, Prussia, Russia, and Sweden, had issued a Declaration, " in the face of Europe, that considering the universal abolition of the slave trade as n measure worthy of their attention, conformable to the spirit of the times, and to the generous principles of their august Sovereigns, they are animated with the sincere desire of concurring in the most prompt and effectual execution of this measure, by all the means at their disposal, and of acting in the employment of those means with all the zeal and perseverance which is due to so noble a cause." And again,
" In communicating this Declaration to the knowledge of Europe, and of all civilized countries, the said plenipotentiaries hope to prevail on every other Government, and particularly on those which in abolishing the slave trade have already manifested the same sentiments, to give them their support in a cause, the final triumph of which will be one of the noblest monuments of the age which embraced it, and which shall have brought it to a glorious termination."
On the 20th of May, 1814, Louis the 18th, on his first restoration, had stipulated by treaty with Great Britain, to unite all his efforts with hers, at this then approaching Congress of Vienna, to induce all the Powers of Christendom to decree the abolition of the slave trade, so that the said trade should cease, universally, as it should cease definitely, under any circumstances, on the part of France, within five years.
Within one year from that time, the Emperor Napoleon, on the 29th of March, 1815, upon his return from Elba, within the hundred days of his authority, decreed the immediate and total abolition of the slave trade on the part of France—which decree Louis the 18th, upon his second restoration, repeated and confirmed—and on the 20th of November, 1815, a Treaty, of which the following was one of the Articles, was concluded between Great Britain and France.
" The high contracting powers, sincerely desiring to give effect to the measures on which they deliberated at the Congress of Vienna, relative to the complete and universal abolition of the slave trade, and having each in their respective dominions, prohibited without restriction, their colonies and subjects from taking any part whatever in this traffic, engage to renew conjointly their efforts, with the view of securing signal success to those principles, which they proclaimed in the Declaration of the 8th of February, 1815, and of concerning without loss of time, through their ministers at the Courts of London and of Paris, the most effectual measures for the active and definitive abolition of a commerce so odious and so strongly condemned by the laws of religion and of nature."
Spain had not been a party to the Declaration of the Allied Powers, at the Congress of Vienna, of 8th of February, 1815—but in a treaty with Great Britain, concluded on the 20th of August, 1814, his Catholic Majesty, concurring in the fullest manner in the sentiments of his Britannic Majesty with respect to the injustice and inhumanity of the traffic in slaves, stipulated that he would take into consideration with the deliberation which the state of his possessions in America demanded, the means of acting in conformity with those sentiments.
And on the 23d of September, 1817, by a treaty concluded between the same two powers, his Catholic Majesty engaged, that the slave trade should be abolished throughout the entire dominions of Spain, on the 30th day of May, 1820; and that from and after that period, it shall not be lawful for any of the subjects of the crown of Spain, to purchase slaves, or to carry on the slave trade, on any parts of the coast of Africa, upon any pretext, or in any manner whatever; provided, however, that a term of five months from the said date of the 30th of May, 1820, should be allowed for completing the voyages of vessels cleared out lawfully, previously to the said 30th of May.
A decree of the King of Spain, of December, 1817, conformable to the above treaty stipulation, prohibited all Spanish subjects from engaging in the African slave trade, from and after the 30th of May, 1820.
The case of the Antelope first came before the District Court of the United States for adjudication, on the 27th of July, 1820. At that time the African slave trade was forbidden to all Spanish subjects throughout the world, by a decree issued nearly three years before. But the Antelope had been fitted out at the Havana, upon her slave trading expedition, and had even been captured by the Arraganta, before the 20th of May, 1820, and consequently before the legal prohibition had taken effect. The capture of her by the Arraganta had been made, not for breach of laws against the slave trade, but as prize of war under a commission from the Oriental Republic. It was her captor who had incurred her forfeiture, and the liberation of the Africans taken in her by the violation of the laws of the United States against the slave trade—not by purchasing or shipping the Negroes in Africa, but for importing them into the United States contrary to law.— To the question of that forfeiture, that of the original property of the vessel and cargo was altogether foreign. That was res inter alios, with which the Courts of the United States had nothing to do. The smuggler was a citizen of the United States. He had proprietary possession of the vessel and of the Negroes, which he was smuggling in to be sold as slaves. It was the identical offense against which the laws of Congress had provided, and the Negroes had by those laws, and by the violation of them committed by John Smith, acquired a right to freedom, infinitely more sacred, one would have thought, in an American Court of Justice, than the property in and to them, of the Spanish slave traders who had kidnapped or bought them in Africa, and had not yet consummated their property by bringing them within the exclusive jurisdiction of Spain.
All the Courts of the United States did however think proper to go back to the proprietary right of the Spanish slave trader; and two of them to sanctify that at the expense of the freedom of the captives, and of the vital spirit of the laws of the Union for the suppression of the African slave trade. This sacrifice was made, by the District and Circuit Courts of the United States, in Georgia. It was never sanctioned by the Supreme Court of the Union. On this single point, the judgment of the Circuit Court, was saved from reversal, by a divided Court; but on all the collateral points the decisions of both the lower Courts were reversed, and on the single point of the Circuit Court, affirmed: the Chief Justice in affirming it gave explicit and emphatic warning, that no principle was settled.
In all the three courts, the restoration of the Antelope, and of the Africans captured by the Arraganta on board of her to the Spanish claimants, was explicitly decreed on the fact that at the time of her expedition from the Havana, and of her capture by the Arraganta the prohibition of the slave trade by the King of Spain had not yet taken effect. All the courts agreed that if the case had occurred after the abolition of the trade by Spain, the judgment would have been cliff renu That is, it must and would have been the emancipation and the restoration to their native country as freemen, of every individual African captured by Captain Jackson in the Antelope.
With what color of reason then was the case of the Antelope made the corner stone of the Attorney General's report to the President of the United States, that the captives of the Amistad should be, by mere Executive warrant, delivered up in a mass, untold and unidentified, to the Spanish minister. Whatever there was or could be of authority in the case of the Antelope led directly to the opposite conclusion. The Supreme Court had toppled down headlong the decree of the Circuit Court for the distribution of the victims between the Spanish and Portuguese Vice Consuls by lot. They had scattered to the winds this gambling of human bones, this cross and pile distribution of justice between liberty and bondage. They had rescued from the grasp of the overseer all the prisoners taken from the vessels bearing Portuguese colors, they had exacted proof of the number and identification of the individuals, to be given up to the Vice Consul of Spain. They had allowed salvage for them to captain Jack. son, to be deducted from their estimated value; and from two hundred and ninety six adjudicated by the courts below, to perpetual slavery, they had reduced the number to an estimate which could not exceed thirty nine. The only principle to which half the court adhered, and thereby left the decree of the Circuit Court unreversed was, that the Spanish prohibition of the slave trade had not quickened into life quite in time to save these thirty-nine unfortunates from the clutches of their oppressors.
Apply these principles to the case of the Amistad captives. They had been imported into the Havana in open and undisguised defiance of the Spanish prohibition of the slave trade enacted nearly twenty years before; but connived at by the Spanish authorities in Cuba for gold—for a doubloon a head. They had been shipped coast wise, in continuance and for consummation of the slave trading voyage from Africa. They had been clandestinely transferred to Ruiz and Montes, who were furnished with printed pretended passports, false and fraudulent upon their face, and these were the only title to property they could show. The captives of the Amistad were, when taken by Lieut. Gedney, not even in the condition of slaves; they were freemen, in possession not only of themselves, but of the vessel with which they were navigating the common property and jurisdiction of all nations, the Ocean: in possession of the cargo of the vessel, and of the Spaniards Ruiz and Montes themselves. Lieut. Gedney seized them as charged with the crimes of piracy and murder. The captives of the Antelope were taken by Captain Jackson in the condition of slaves. The courts of the United States were not called on to change their condition. The courts of the United must have enslaved the captives of the Amistad before they could restore them to their pretended masters.
The decision of the courts of the United States against the captives of the Antelope were all apologetic. They leaned almost entirely upon a decision of Sir William Scott in the case of the Louis, apparently if not really conflicting with that of Sir William Grant in the case of the Amedee. It is apparent that the Admiralty Courts of Great Britain have been divided on the question not less than those of the United States. Sir William Scott, who, during the war of the French Revolution, had been the main pillar of belligerent rights and arbitrary searches and visitations of neutral vessels, after the peace and the agitation of the slavery question among all the nations of Europe, took a very different lurch, and became the most fervent champion of the slave trade and of the unqualified exemption of all merchant vessels from visitation or search by the armed ships of every nation other than their own. In the case of the slave Grace, he decided that a West Indian female slave following her mistress to England, and emancipated by mere contact with English soil, became re enslaved by returning to the West Indian Islands,—a decision the reverse of which has been repeatedly decided in one of the principal slave states of this Union. In the case of the Louis he laid it down in most unqualified terms, which Chief Justice Marshall in the case of the Antelope repeats with seeming approbation, that the right of search is confined to a state of war. That it is a right strictly belligerent in its character, which can never be exercised by a nation at peace, except against professed pirates, who are the enemies of the human race: a position which, if true, would at once decide that both the capture of the Antelope by Captain Jackson, and of the Amistad by Lieut. Gedney, were unlawful and unjustifiable. I must pause before I assent to the doctrine to that extent.
In the same case of the Louis, Sir William Scott travels out of his record, to start a hypothetical objection to the universality of this exemption of foreign vessels from visitation and search. " It is pressed as a difficulty," says the Judge, " what is to be done, if a French ship laden with slaves is brought in ? I answer without hesitation, restore the possession which has been unlawfully divested: rescind the illegal act done by your own subject, and leave the foreigner to the justice of his own country."
Chief Justice Marshall, in the case of the Antelope, cites also this passage of the decision of Sir William Scott; but besides that it is a mere obiter dictum upon an imaginary case not before the court, it is assuredly not law within these United States. By the act of Congress of 2d of March, 1799, to regulate the collection of duties, &c., [section 99. U. S. Laws 3, 226,] " the officers of the revenue cutters are authorized, required and directed to go on board all ships or vessels which shall arrive within the United States, or within four leagues of the coast thereof' if bound for the United States, and to search and examine the same, and every part thereof," for the purposes of revenue.
By the act of 2d of March, 1807, to prohibit the importation of slaves into the United States, [section 7, U. S. Laws 2, 96,] it is provided that " if any ship or vessel shall be found, from and after the first day of January, 1808, in any river, port, bay, or harbor, or on the high seas, within the jurisdictional limits of the United States, or hovering on the coast thereof, having on board any Negro, mulato, or person of color, for the purpose of selling them as slaves, or with intent to land the same in any port or place within the jurisdiction of the United States, contrary to the prohibition of this act, every such ship or vessel, together with her tackle, apparel and furniture, and the goods or effects which shall be found on board the same, shall be forfeited to the use of the United States, and may be seized, prosecuted and condemned in any court of the United States having jurisdiction thereof. And it shall be lawful for the President of the United States, and he is hereby authorized, should he deem it expedient, to cause any of the armed vessels of the United States, to be manned and employed to cruise on any part of the coast of the United States or territories thereof, where he may judge attempts will be made to violate the provisions of this act, and to instruct and direct the commanders of armed vessels of the United States, to seize, take, and bring into any port of the United States all such ships or vessels, and moreover to seize, take and bring into any port of the United States, all ships or vessels of the United States wheresoever found on the high seas, contravening the provisions of this act, to be proceeded against according to law," &c.
Here then are two very extensive limitations, by the laws of the United States, upon the doctrines of Sir William Scott, pronounced in the case of the Louis. These limitations embrace both the cases of the Antelope and of the Amistad. Yet in the case of the Antelope, Chief Justice Marshall cites the opinions of Sir William Scott in the case of the Louis, without any notice whatever of the statute laws of the United States contradictory to those opinions, and the Attorney General Grundy cites, in the case of the Amistad, the opinions of Chief Justice Marshall in that of the Antelope, as authority for a principle which in that very opinion the Chief justice declares not settled.
The truth is, that the opinions of Sir William Scott in the case of the Louis, have reference only to the slave trade, and the shipment of slaves on the coast of Africa: the case of the Antelope was for the violation of the laws of the United States against the importation of slaves into the United States for sale. In all these cases the right of visitation and search of foreign vessels is not a merely belligerent right; it is exercised at all times, in peace or war, and if a French ship laden with slaves were found hovering on the coast of the United States, or within at least four leagues of their shores, and brought in, neither would the possession be unlawfully divested, nor would the foreigner be left to the justice of his own country. There is no act of Parliament against the importation of slaves into England for sale: the opinions of Sir William Scott look to no such case, for no such crime could then be committed. They had no application therefore to the case of the Antelope, and were very erroneously cited as warranting the surrender of that vessel and her cargo of Africans to the Spanish claimants.
I have said that the decisions of all the courts of the United States in that case directing that surrender, are apologetic. They admit that the traffic in slaves is contrary to the law of nature; that it is inhuman, cruel, odious, detestable; but that it is not contrary to the law of nations, and therefore must be acknowledged, defended, protected and carried into execution for other nations by the Courts of the United States, although as abhorrent to our laws as to the laws of nature. For this distinction also, our courts are indebted to Sir William Scott, whose ingenuity in that same case of the Louis, lays down the following position, cited also approvingly, by Chief Justice Marshall, in his opinion upon the case of the Antelope.
"A court," says the British Judge, " in the administration of law, cannot attribute criminality to an act where the law imputes none. It must look to the legal standard of morality; and upon a question of this nature, that standard must be found in the law of nations, as fixed and evidenced by general and ancient and admitted practice, by treaties, and by the general tenor of the laws and ordinances, and the formal transactions of civilized states: and looking to these authorities, he found a difficulty in maintaining that the transaction was legally criminal."
In the Declaration of Independence the Laws of Nature are announced and appealed to as identical with the laws of nature's God, and as the foundation of all obligatory human laws. But here Sir William Scott proclaims a legal standard of morality, differing from, opposed to, and transcending the standard of nature and of nature's God. This legal standard of morality must, he says, in the administration of law, be held, by a Court, to supersede the laws of God, and justify, before the tribunals of man, the most atrocious of crimes in the eyes of God. With such a principle it is not surprising that Sir William Scott should have found a difficulty in maintaining that the African slave trade was legally criminal, nor that one half the Supreme Court of the United States should have adopted his conclusions. It is consolatory to the friends of human virtue and of human freedom to know, that this error of the first concoction, in the moral principle of a British judge, has been, so far as relates to the African slave trade, laid prostrate by the moral sense of his own country, which has overcome the difficulty of finding the slave trade criminal, by the legal and national abolition of slavery itself.
The decree of the Supreme Court, in 1825, " proceeding to give such decree as the Circuit Court ought to have given, did direct and order that the restitution to be made to the Spanish claimant should be according to the ratio which 93 (instead of 166) bears to the whole number, comprehending as well those originally on board the Antelope as those which were put on board that vessel by the captain of the Arraganta. After making the apportionment according to this ratio, and deducting from the number the rateable loss which must fall on the slaves, to which the Spanish claimants were originally entitled, the residue of the said 93 were to be delivered to the Spanish claimant, on the terms mentioned in the decree of the Circuit Court: and all the remaining Africans were to be delivered to the United States, to be disposed of according to law."
A mandate issued to the Circuit Court for the district of Georgia for the execution of this decree. One would suppose that the Supreme Court had sufficiently manifested its disapprobation of the mode of settling the question of freedom and slavery, by lot; and yet was their decree, on this point, not 80 explicit, but that one of the two judges of the Circuit Court believed that the selection between the Africans to be delivered to the Spanish claimants as slaves, and those claimed by the Portuguese Vice Consul, but whom the Supreme Court had declared free, might still be made by lot. The other judge understood better the spirit of the Supreme tribunal; and hence arose a dilberence of opinion between the two judges of the Circuit Court, which sent the case back for a second judgment of the appellate court. The second judgment of the Supreme Court, in the case of the Antelope, was rendered at their February term, 1826, and is reported (11 Wheaton, 413) as follows:—" Certificate.—A mandate having issued to the Circuit Court for the District of Georgia, to carry into execution the decree of this Court, pronounced at the February term, 1825, to deliver certain Africans, in the said decree mentioned, to the Spanish Consul for Spanish claimants; and the judges of that court having been divided in opinion respecting the mode of designating the said slaves to be delivered, and separating them from others to be delivered to the United States, whether the same should be made by lot, or upon proof on the part of the Spanish claimant, it is ordered to be certified to the said Circuit Court of Georgia, that, in executing the said mandate, the Africans to be delivered must be designated by proof made to the satisfaction of the Court."
To understand this difference of opinion, with regard to the mode of designating the Africans to be delivered up to the Spanish claimant and to slavery, it is to be remembered, that the libel of the Spanish Vice Consul before the District Court had claimed 150 of the Africans captured by Captain Jackson, and the libel of the Portuguese Vice Consul 130. That the decree of the District Court, founded on the report of the clerk, had awarded 142 of the 212 surviving Africans to the Portuguese, and 63 to the Spanish Vice Consul; while the subsequent decree of the Circuit Court, after a delay of one term and the admission of further evidence, had allotted in the ratio of 166 to the Spanish, and 130 to the Portuguese claimants. That is, deducting from the Spanish number the 16 persons drawn by lot and liberated, this decree gave to the Spanish and Portuguese Vice Consuls the ratio of the full number claimed by each of them in his respective libel. The Supreme Court, reversing this decree of the Circuit Court, had directed that the ratio of the whole number, to be delivered up to the Spanish Vice Consul should be reduced from 166 to 93; and that number was still to be reduced by the rateable loss, which the clerk of the District Court had reported to be 30. And all the rest, by the decree of the Supreme Court, were to be liberated. If, then, the Africans to be delivered to the Spanish Vice Consul had been drawn from the whole number by lot, he would have received 63; but the Supreme Court having, upon this second appeal, decreed that the Spanish claimant must identify by proof of having been taken by the Arraganta, in the Antelope, every individual, to be delivered up to him, explicitly rejected, for the second time, the lot, as a mode of ascertaining freemen among slaves, and actually diminished the number of victims delivered up to the Spaniard, from 63 to 39. And this was the number finally delivered up by the decree of the Supreme Court of the United States of the captives of the Antelope to the Spanish Vice Consul. But this was not the last decision of the Supreme Court in the case.
It was remanded to the Circuit Court, with directions to make a final disposition of the controversy between the parties pursuant to the principles of the decrees of 1825 and 1826. And now came up the question, to use a vulgar but significant phrase, Who should pay the piper ?
"The Circuit Court, [says the Report, 12 Wheaton, 547,] in order to enable it to decree finally in the case, directed the register to take and report an account of the costs, and also of the expenses of keeping, maintaining, &c. of the Africans, by the marshal, and which account (amounting to upwards of thirty six thousand dollars) was accordingly reported. Exceptions were filed to the report by both the Portuguese and Spanish claimants. The Circuit Court also caused proofs to be taken, for the purpose of identifying. individually the Africans to be delivered to the Spanish claimants, as directed by the decree of 1816.
Thus circumstanced, the case came on for final hearing before the Circuit Court. The Court decreed that the Portuguese claimant should not be made liable for costs, or any proportion of the expenses and charges of the marshal, for maintaining, &c. the Africans: and being of opinion that 39 of the Africans were sufficiently identified, by proof, as being the property of the Spanish claimants, directed the 39 Africans, so identified, to be delivered to the Spanish claimants, upon their paying a proportion of the costs and expenses reported by the registrar, in the ratio of the number of Africans delivered to the whole number. And the Circuit Court was further of opinion, that the residue of the Africans not directed to be delivered to the Spanish claimants should be delivered to the United States, to be disposed of according to law: but on the question, whether they shall be delivered absolutely, or on condition of payment of the balance of the expenses which will remain unsatisfied, after charging the Africans adjudged to the Spanish claimants in their due ratio, the Judges of the Circuit Court being divided in opinion, ordered this difference of opinion to be ''certified to this Court."
The United States District Attorney appealed from so much of this final order of the Circuit Court as related to the apportionment among the several parties of the costs and expenses in the preservation, maintenance, and custody of the said Africans, and of the costs and expenses of the various proceedings had in relation to the said Africans; and also from so much of said order as decreed 39 of the said Africans to the Spanish claimants.
So extraordinary, so anti judicial is every thing upon the records in this case of the Antelope, that the Supreme Court actually did not know what was the question upon which the judges of the Circuit Court were opposed in opinion—they supposed it was, whether the Africans not directed to be delivered to the Spanish claimants should be delivered by the marshal to the United States, absolutely and unconditionally, to be disposed of according to law, that is, to be liberated and sent home; or whether it should be imposed on the United States, as a condition precedent to their delivery, that the United States should pay to the marshal his claim for expenses, at the rate of sixteen cents a day for each African, (for several years) in the ratio of the number to be delivered to the United States.
This, it will be perceived, was still the question of freedom or slavery to the poor Africans. If the decree had been, that the payment of these expenses, amounting to about 350 dollars a head, was a condition precedent to their delivery to the United States, in the event of nonpayment, the marshal had a lien upon the Africans, and they would have been his slaves.
The mode of proof admitted by the Circuit Court to identify the individuals to be doomed to slavery and delivery to the Spanish claimants cannot commend itself to the sense of justice, of humanity, or of freedom. Fifty of them, employed upon the fortifications, had been selected by the marshal, and recognized by a man named Grondona, who had been second officer on board the Antelope when the slaves were purchased and shipped in Africa. Grondona had since disappeared, and was said to be dead; but there were witnesses in Court who had been present at the examination when Grondona recognized thirty four of the Negroes and they him, by speaking together, and by signs, though the witnesses knew no. thing of the language in which they spoke. Other witnesses testified to his having recognized five more. The Africans had no notice that their fate, as freemen or slaves, was to depend on this recognition. They had no one to defend them, and protest for them, against the manner of disposing of their free dom. The examination was in open court, but the only evidence furnished was testimony to individuals whom Grondona had recognized and who had recognized him. Hearsay evidence of one whose language the witnesses did not understand!
Yet the Supreme Court thought this evidence sufficient, under the very peculiar circumstances of this case, reasonably to satisfy the mind of the identity of thirty nine of the Africans, as belonging to the Spanish claimants, and affirmed the decree of the Circuit Court for their delivery up to the Spanish Vice Consul.
Under the very peculiar circumstances of the case, in order to enslave 39 human beings, otherwise entitled to freedom, evidence was deemed sufficient, which, upon an ordinary question of property, of five dollars value, between man and man, would have been rejected as inadmissible.
The very peculiar circumstances of the case are quite as strongly masked, in the opinion of the judge of the Circuit Court, in December, 1826, as they had been in his preceding opinion, delivered in l821. In apologizing for the enormous amount of the marshal's bill, allowed by the court, which he is aware must expose the court, and the administration of justice in the country, to certain imputations, he says, "What could the court do? The United States regard the subjects of this suit as men and not things. They could not be sold, and the money lodged fin the registry. They were then prisoners, and necessarily to be kept and treated as such." Had he judge allowed his reason to advance one step further, he would have seen, that precisely because they were men and not things, precisely because they could not be sold, precisely because they must be kept and treated, if at all, as prisoners they could not be restored entire as merchandize, nor therefore, come within the purview of the 9th article of our treaty with Spain.
" The next question," says the judge of the Circuit Court, " is, by whom these costs are to be paid? That the maintenance of the Africans was n legal charge on the United States, in the first instance, is perfectly clear. By the act of February 28, 1799, in forcing them into the hands of the marshal, the United States became bound for their subsistence."
The judge of the Circuit Court further affirms, that the Supreme Court, by its decree of 1825, and explanatory decree of 1826, established seven principles; the first of which, in his enumeration, is—" That the lay of nations recognized both slavery and the slave-trade."
But Chief Justice Marshall, in delivering the opinion and pronouncing the decree of the Supreme Court in 1825, declared that, on the question of the restitution to the Spanish claimant, which depended entirely upon the recognition of the slave trade by the LAW of nations, " the Court is divided on it, and, consequently, NO PRINCIPLE IS SETTLED. '
The judge of the Circuit Court was, therefore, in manifest error when he said that the Supreme Court had, by the decrees of 1825 and 1826, established the principle, that the law of nations recognized both slavery and the slave trade. And this mistake discloses the source of that great perplexity, which troubles him, to find a consistency between the principle which he erroneously supposes them to have established, and their decree for carrying it into execution. It is not our business to inquire into the reasons of that Court. " We must give effect to it according to what we understand to be its meaning. And, upon collating and combining their decree of 1825 with the explanatory decree of 1826, the two will be found to amount to this—that the rights of the Spaniards shall be recognized; but, in reducing that right to possession, they shall be held to have established a claim originally to ninety-three, which number shall be reduced by the average of deaths; and to the number so ascertained, they shall be held to produce proof of individual identity. But all the cargo, with the exception of those to be thus identified, shall be delivered over to the United States. This will be doing what that Court certainly intended to do: it will make a final disposition of a most troublesome charge. It is our duty (says he) to find out the meaning of the decree of the Supreme Court, and to obey it. And here it is evident, that although their reasoning, and the principles recognized, would seem to go fully up to the maintenance of the Spanish right, yet the decree, in its details, sustains those rights under very important limits and modifications."
And such is the history of the case of the Antelope in the judicial tribunals of the United States. That vessel, commanded by a citizen of the United States, was taken in the very act of smuggling 258 Africans into the United States for sale as slaves, and by the plain, unquestionable letter of the 4th section of an act of Congress of 20th April, 1818, was forfeited; while, by an act in addition to the acts prohibiting the slave trade, of 3d March, 1819, every African thus imported in the Antelope was made free, —subject only to safe keeping, support, and removal beyond the limits of the United States, by direction of their President.
After seven years of litigation in the Courts of the United States, and, of course, of captivity to nearly all of these Africans who survived the operation; after decrees of the District Court, reversed by the Circuit Court, and three successive annual reversals by the Supreme Court of the decrees of the Circuit Court; what was the result of this most troublesome charge ?
The vessel was restored to certain Spanish slave traders in the island of Cuba. Of the Africans, about fifty had perished by the benignity of their treatment in this land of liberty, during its suspended animation as to them; sixteen, drawn by lot from the whole number, (by the merciful dispensation of the Circuit Court, under the arbitrary enlargement of the tender mercies of the District Judge, which had limited the number to seven,)—sixteen had drawn the prize of liberty, to which the whole number were entitled by the letter of the law; and of the remainder, THIRTY NINE upon evidence inadmissible upon the most trifling question of property in any court of justice, were, under the very peculiar circumstances of the case, surrendered! delivered up to the Spanish vice consul—AS SLAVES! To the rest was at last extended the benefit of the laws which had foreordained their emancipation. They were delivered over to safe keeping, support, and transportation, as freemen, beyond the limits of the United States, by the Chief Magistrate of the Union.
And now, by what possible process of reasoning can any decision of the Supreme Court of the United States in the case of the Antelope, be adducedas authorizing the President of the United States to seize and deliver up to the order of the Spanish minister the captives of the Amistad? Even the judge of the District Court in Georgia, who would have enslaved all the unfortunates of the Antelope but seven, distinctly admitted, that, if they had been bought in Africa after the prohibition of the trade by Spain, he would have liberated them all.
In delivering the opinion of the Supreme Court, on their first decree in the case of the Antelope, Chief Justice Marshall, after reviewing the decisions in the British Courts of Admiralty, says, " The principle common to these cases is, that the legality of the capture of a vessel engaged in the slave trade depends on the law of the country to which the vessel belongs. If that law gives its sanction to the trade, restitution will be decreed: if that law prohibits it, the vessel and cargo will be condemned as good prize."
It was by the application of this principle, to the fact, that, at the time when the Antelope was taken by the Arraganta, the slave trade, in which the Antelope was engaged, had not yet been made unlawful by Spain, that the Supreme Court affirmed so much of the decree of the Circuit Court as directed restitution to the Spanish claimant of the Africans found on board the Antelope when captured by the Arraganta.
But by the same identical principle, applied to the case of the Amistad, if, when captured by Lieutenant Gedney, she and her cargo had been in possession of the Spaniards, and the Africans in the condition of slaves, the vessel would have been condemned, and the slaves liberated, by the laws of the United States; because she was engaged in the slave trade in violation of the laws of Spain. She was in possession of the Africans, self emancipated, and not in the condition of slaves. That, surely, could not legalize the trade in which she had been engaged. By the principle asserted in the opinion of the Supreme Court, declared by Chief Justice Marshall, it would have saved the vessel, at once, from condemnation and from restitution, and would have relieved the Court from the necessity of restoring to the Africans their freedom. Thus the opinion of the Supreme Court, as declared by the Chief Justice, in the case of the Antelope, was a fact, an authority in point, against the surrender of the Amistad, and in favor of the liberation of the Africans taken in her, even if they had been, when taken, in the condition of slaves. How monstrous, then, is the claim upon the Courts of the United States to re inslave them, as thralls to the Spaniards, Ruiz and Montes! or to transport them beyond the seas, at the demand of the Minister of Spain!
I said, when I began this plea, that my final reliance for success in this case was on this Court as a court of JUSTICE; and in the confidence this fact inspired that, in the administration of justice, in a case of no less importance than the liberty and the life of a large number of persons, this Court would not decide but on a due consideration of all the rights, both natural and social, of every one of these individuals. I have endeavored to show that they are entitled to their liberty from this Court. l have avoided, purposely avoided, and this Court will do justice to the motive for which I have avoided, a recurrence to those first principles of liberty which might well have been invoked in the argument of this cause. I have shown that Ruiz and Montes, the only parties in interest here, for whose sole benefit this suit is carried on by the Government, were acting at the time in a way that is forbidden by the laws of Great Britain, of Spain, and of the United States, and that the mere signature of the Governor General of Cuba ought not to prevail over the ample evidence in the case that these Negroes were free and had a right to assert their liberty. I have shown that the papers in question are absolutely null and insufficient as passports for persons, and still more invalid to convey or prove a title to property.
The review of the case of the Antelope, and my argument in behalf of the captives of the Amistad, is closed.
May it please your Honors: On the 7th of February, 1804, now more than thirty seven years past, my name was entered, and yet stands recorded, on both the rolls, as one of the Attorneys and Counsellors of this Court. Five years later, in February and March, 1809, I appeared for the last time before this Court, in defence of the cause of justice' and of important rights, in which many of my fellow citizens had property to a large amount at stake. Very shortly afterwards, I was called to the discharge of other duties—first in distant lands, and in later years, within our own country, but in different departments of her Government.
Little did I imagine that I should ever again be required to claim the right of appearing in the capacity of an officer of this Court; yet such has been the dictate of my destiny—and I appear again to plead the cause of justice, and now of liberty and life, in behalf of many of my fellow men, before that same Court, which in a former age I had addressed in support of rights of property I stand again, I trust for the last time, before the same Court— 'hic caestus, artemque repono." I stand before the same Court, but not before the same judges—nor aided by the same associates —nor resisted by the same opponents. As I cast my eyes along those seats of honor and of public trust, now occupied by you, they seek in vain for one of those honored and honorable persons whose indulgence listened then to my voice. Marshall—Cushing—Chase—Washington—Johnson—Livingston— Todd—Where are they ? Where is that eloquent statesman and learned lawyer who was my associate counsel in the management of that cause, Robert Goodloe Harper? Where is that brilliant luminary, so long the pride of Maryland and of the American Bar, then my opposing counsel, Luther Martin? Where is the excellent clerk of that day, whose name has been inscribed on the shores of Africa, as a monument of his abhorrence of the African slave trade, Elias B. Caldwell, Where is the marshal—where are the criers of the Court I Alas! where is one of the very judges of the Court, arbiters of life and death, before whom I commenced this anxious argument, even now prematurely closed? Where are they all I Gone ! Gone ! All gone!— Gone from the services which, in their day and generation, they faithfully rendered to their country. From the excellent characters which they sustained in life, so far as I have had the means of knowing, I humbly hope, and fondly trust, that they have gone to receive the rewards of blessedness on high. In taking, then, my final leave of this Bar, and of this Honorable Court, I can only ejaculate a fervent petition to Heaven, that every member of it may go to his final account with as little of earthly frailty to answer for as those illustrious dead, and that you may, every one, after the close of a long and virtuous career in this world, be received at the portals of the next with the approving sentence—" Well done, good and faithful servant; enter thou into the joy of thy Lord."