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 UC-NRLF 
 
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LIBRARY 
 
 UNIVERSITY OF CALIFORNIA 
 DAVIS 
 
ARGUMENT 
 
 OJP 
 
 JOHN QUINCY ADAMS, 
 
 BEFORE THE 
 
 SUPREME COURT OF THE UNITED STATES, 
 
 IN THE CASE OF THE 
 
 UNITED STATES, APPELLANTS, 
 
 vs. 
 CINQUE, AND OTHERS, .AFRICANS, 
 
 CAPTURED IN THE SCHOONER AMISTAD, BY LIEUT. GEDNEY, 
 
 DELIVERED ON THE 24th OF FEBRUARY AND 1st OF MARCH, 1841. 
 
 WITH A REVIEW OF THE CASE OF THE ANTELOPE, 
 REPORTED IN THE 10TH, llTH AND 12TH VOLUMES OP WHEATQN'S REPORTS. 
 
 NEW YORK: 
 
 S. W. BENEDICT, 128 FULTON STREET. 
 
 1841. 
 
 LIBRARY 
 .UNIVERSITY OF CALIFORNIA 
 
ARGUMENT 
 
 JOHN QUINCY ADAMS 
 
 MAY IT PLEASE YOUR HONORS 
 
 In rising to address this Court as one of its attorneys and coun- 
 sellors, regularly admitted at a great distance of time, I feel that 
 an apology might well be expected where I shall perhaps be more 
 likely to exhibit at once the infirmities of age and the inexperience 
 of youth, than to render those services to the individuals whose lives 
 and liberties are at the disposal of this Court which I would most 
 earnestly desire to render* But as I am unwilling to employ one 
 moment of the time of the Court in anything that regards my own 
 personal situation, I shall reserve what few observations I may 
 think necessary to offer as an apology till the close of my argu 
 ment on the merits of the question. 
 
 I therefore proceed immediately to say that, in a consideration 
 of this case, I derive, in the distress I feel both for myself and my 
 clients, consolation from two sources first, that the rights of my 
 clients to their lives and liberties have already been defended by 
 my learned friend and colleague in so able and complete a man 
 ner as leaves me scarcely anything to say, and I feel that such 
 full justice has been done to their interests, that any fault or im 
 perfection of mine will merely be attributed to its true cause j 
 and secondly, I derive consolation from the thought that this 
 Court is a Court of JUSTICE. And in saying so very trivial a 
 thing, I should not on any other occasion, perhaps, be warranted 
 in asking the Court to consider what justice is. Justice, as de- 
 
fined in the Institutes of Justinian, nearly 2000 years ago, and as 
 it is felt and understood by all who understand human relations 
 and human rights, is 
 
 " Constans et perpetua voluntas, jus SUUM cuique tribuendi." 
 
 " The constant and perpetual will to secure to every one HIS OWN right." 
 
 And in a Court of Justice, where there are two parties present, 
 justice demands that the rights of each party should be allowed 
 to himself, as well as that each party has a right, to be secured 
 and protected by the Court. This observation is important, be 
 cause I appear here on the behalf of thirty-six individuals, the 
 life and liberty of every one of whom depend on the decision 
 of this JCourt. The Court, therefore, I trust, in deciding this 
 case, will form no lumping judgment on these thirty-six individu 
 als, but will act on the consideration that the life and the liberty 
 of every one of them must be determined by its decision for him 
 self alone. 
 
 They are here, individually, under very different circumstances, 
 and in very different characters. Some are in one predicament, 
 some in another. In some of the proceedings by which they have 
 been brought into the custody and under the protection of this 
 Court, thirty-two or three of them have been charged with the 
 crime of murder. Three or four of them are female children, in 
 capable, in the judgment of our laws, of the crime of murder or 
 piracy, or, perhaps, of any other crime. Yet, from the day when 
 the vessel was taken possession of by one of our naval officers, 
 they have all been held as close prisoners, now for the period of 
 eighteen long months, under custody and by authority of the 
 Courts of the United States. I trust, therefore, that before the 
 ultimate decision of this Court is established, its honorable mem 
 bers will pay due attention to the circumstances and condition of 
 every individual concerned. 
 
 When I say I derive consolation from the consideration that I 
 stand before a Court of Justice, I am obliged to take this ground, 
 because, as I shall show, another Department of the Government 
 of the United States has taken, with reference to this case, the 
 ground of utter injustice, and these individuals for whom I appear, 
 stand before this Court, awaiting their fate from its decision, un 
 der the array of the whole Executive power of this nation against 
 them, in addition to that of a foreign nation. And here arises a 
 
consideration, the most painful of all others, in considering the 
 duty I have to discharge, in which, in supporting the motion to 
 dismiss the appeal, I shall be obliged not only to investigate and 
 submit to the censure of this Court, the form and manner of the 
 proceedings of the Executive in this case, but the validity, and the 
 motive of the reasons assigned for its interference in this unusual 
 manner in a suit between parties for their individual rights. 
 
 At an early period of my life it was my fortune to witness the 
 representation upon the stage of one of the tragic masterpieces 
 of the great Dramatist of England, or I may rather say of the 
 great Dramatist of the world, and in that scene which exhibits in 
 action the sudden, the instantaneous fall from unbounded power 
 into irretrievable disgrace of Cardinal Wolsey, by the abrupt 
 declaration of displeasure and dismission from the service of his 
 King, made by that monarch in the presence of Lord Surry and 
 of the Lord Chamberlain ; at the moment of Wolsey's humiliation 
 and distress, Surry gives vent to his long suppressed resentments 
 for the insolence and injuries which he had endured from the fall 
 en favorite while in power, and breaks out into insulting and bit 
 ter reproaches, till checked by the Chamberlain, who says: 
 
 "Oh! my Lords; 
 Press not a falling man too far : 'tis VIRTUE." 
 
 v 
 
 The repetition of that single line, in the relative position of the 
 parties, struck me as a moral principle, and made upon my mind 
 an impression which I have carried with me through all the chan 
 ges of my life, and which I trust I shall carry with me to my 
 grave. 
 
 It is, therefore, peculiarly painful to me, under present circum 
 stances, to be under the necessity of arraigning before this Court 
 and before the civilized world, the course of the existing- Admin- 
 istration in this case. But I must do it. That Government is 
 still in power, and thus, subject to the control of the Court, the 
 lives and liberties of all my clients are in its hands. And if I 
 should pass over the course it has pursued, those who have not 
 had an opportunity to examine the case and perhaps the Court 
 itself, might decide that nothing improper had been done, and that 
 the parties I represent had not been wronged by the course pursued 
 by the Executive. In making this charge, or arraignment, as defen 
 sive of the rights of my clients, I now proceed to an examination of 
 
the correspondence of the Secretary of State with the ambassador 
 of her Catholic Majesty, as officially communicated to Congress, 
 and published among the national documents. 
 
 The charge I make against the present Executive administra 
 tion is that in all their proceedings relating to these unfortunate 
 men, instead of that Justice, which they were bound not less 
 than this honorable Court itself to observe, they have substituted 
 Sympathy I sympathy with one of the parties in this conflict of 
 justice, and Antipathy to the other. Sympathy with the white, 
 antipathy to the black and in proof of this charge I adduce the 
 admission and avowal of the Secretary of State himself. In the 
 letter of Mr. Forsyth to the Spanish Minister d'Argaiz, of 13th of 
 December, 1839, [Document H. R. N. S. 185,] defending the 
 course of the administration against the reproaches utterly ground 
 less, but not the less bitter of the Spanish Envoy, he says : 
 
 " The undersigned cannot conclude this communication with 
 out calling the attention of the Chevalier d'Argaiz to the fact, 
 that with the single exception of the vexatious detention to which 
 Messrs. Montes and Ruiz have been subjected in consequence of 
 the civil suit instituted against them, all the proceedings in the 
 matter, on the part both the Executive and Judicial branches of 
 the government have had their foundation in the ASSUMPTION that 
 these persons ALONE were the parties aggrieved ; and that their claims 
 to the surrender of the property was founded in fact and injustice. 11 
 [pp. 29, 30.] 
 
 At the date of this letter, this statement of Mr. Forsyth was 
 strictly true. All the proceedings of the government, Executive 
 and Judicial, in this case had been founded on the assumption that 
 the two Spanish slave-dealers were the only parties aggrieved 
 that all the right was on their side, and all the wrong on the side 
 of their surviving self-emancipated victims. I ask your honors, 
 was this JUSTICE ? No. It was not so considered by Mr. For 
 syth himself. It was sympathy, and he so calls it, for in the pre 
 ceding page of the same letter referring to the proceedings of 
 this Government from the very first intervention of Lieut. Ged- 
 ney, he says : 
 
 " Messrs. Ruiz and Montes were first found near the coast of 
 the United States, deprived of their property and of their free 
 dom, suffering from lawless violence in their persons, and in im- 
 minent and constant danger of being deprived of their lives also. 
 
They were found in this distressing and perilous situation by offi 
 cers of the United States, who, moved towards them by sympa 
 thetic feeling which subsequently became as it were national, imme- 
 diately|rescued them from personal danger, restored them to free 
 dom, secured their oppressors that they might abide the conse 
 quences of the acts of violence perpetrated upon them, and placed 
 under the safeguard of the laws all the property which they claim 
 ed as their own, to remain in safety until the competent authori 
 ty could examine their title to it, and pronounce upon the ques 
 tion of ownership agreeably to the provisions of the 9th article of 
 the treaty of 1795." 
 
 This sympathy with SpanislTslave-traders is declared by the 
 Secretary to have been first felt by Lieutenant Gedney. I hope 
 this is not correctly represented. It is imputed to him and declar 
 ed to have become in a manner national. The national sympathy 
 with the slave-traders of the baracoons is officially declared to 
 have been the prime motive of action of the government : And 
 this fact is given as an answer to all the claims, demands and re 
 proaches of the Spanish minister ! I cannot urge the same ob 
 jection to this that was brought against the assertion in the libel 
 that it said the thing which is not too unfortunately it was so, 
 as he said. The sympathy of the Executive government, and as 
 it were of the nation, in favor of the slave-traders, and against 
 these poor, unfortunate, helpless, tongueless, defenceless | Afri 
 cans, was the cause and foundation and motive of all these [pro 
 ceedings, and has brought this case p for trial before your 
 honors. 
 
 I do not wish to blame the first sympathies of Lieut. Gedney, 
 nor the first action of the District and Circuit Courts. The seiz 
 ure of the vessel, with the arrest and examination of thd Africans, 
 was intended for inquiry, and to lead to an investigation of the 
 rights of all parties. This investigation has ultimated in the de 
 cision of the District Court, confirmed by the Circuit Court, 
 which it is now the demand of the Executive should be reversed 
 by this Court. The District Court has exercised its jurisdiction 
 over the parties in interest, and has found that the right was with 
 the othdr party, that the decisions of JUSTICE were not in ac 
 cordance with the impulses of sympathy, and that consequently 
 the sympathy was wrong before. And consequently it now ap 
 pears that everything which has flowed from this mistaken or mis 
 applied sympathy, was wrong from the beginning. 
 
8 
 
 For I inquire by what right, all this sympathy, from Lieut. Ged- 
 ney to the Secretary of State, and from the Secretary of State, 
 as it were, to the nation, was extended to the two Spaniards from 
 Cuba exclusively, and utterly denied to the fifty-two victims of 
 thiir lawless violence \ By what right was it denied to the men 
 who had restored themselves to freedom, and secured their op 
 pressors to abide the consequences of the acts of violence perpe 
 trated by them, and why was it extended to the perpetrators of 
 those acts of violence themselves 1 When the Amistad first 
 came within the territorial jurisdiction of the United States, acts 
 of violence had passed between the two parties, the Spaniards and 
 Africans on board of her, but on which side these acts were law 
 less, on which side were the oppressors, was a question of right 
 and wrong, for the settlement of which, if the government and 
 people of the United States interfered at all, they were bound in 
 duty'to extend their sympathy to them all ; and if they intervened 
 at all between them, the duty incumbent upon this intervention 
 was not of favor, but of impartiality not of sympathy, but of 
 JTJSTICE, dispensing to every individual his own right. 
 
 Thus the Secretary of State himself declares that the motive for 
 all the proceedings of the government of the United States, until 
 that time, had been governed by sympathetic feeling towards one 
 of the parties, and by the assumption that all the right was on 
 one side and all the wrong on the other. It was the motive of 
 Lieut. Gedney : the same influence had prevailed even in the ju 
 dicial proceedings until then : the very language of the Secretary 
 of State in this letter breathes the same spirit as animating the 
 executive administration, and hag continued to govern all its pro 
 ceedings on this subject to the present day. It is but too true 
 that the same spirit of sympathy and antipathy has nearly per 
 vaded the whole nation, and it is against them that I am in duty 
 bound to call upon this Court to restrain itself in the sacred name 
 
 Of JUSTICE. 
 
 One of the Judges who presided in some of the preceding tri 
 als, is said to have called this an anomalous case. It is indeed 
 anomalous, and I know of no law, but one which I am not at 
 liberty to argue before this Court, no law, statute or constitution, 
 no code, no treaty, applicable to the proceedings of the Execu 
 tive or the Judiciary, except that law, (pointing to the copy of the 
 Declaration of Independence, hanging against one of the pillars 
 
of the court.room,) that law, two copies of which are ever before 
 the eyes of your Honors. I know of no other law that reaches the 
 case of my clients, but the law of Nature and of Nature's God on 
 which our fathers placed our own national existence. The 
 circumstances are so peculiar, that no code or treaty has provid 
 ed for such a case. That law, in its application to my clients, I 
 trust will be the law on which the case will be decided by this 
 Court. 
 
 In the sequel to the diplomatic correspondence between the Sec 
 retary of State and the Spanish minister Argaiz, relating to the 
 case of the Amistad, recently communicated by the President of 
 the United States to the Senate, [Doc. 179. 12 Feb. 1841,] the 
 minister refers with great apparent satisfaction to certain resolu 
 tions of the Senate, adopted at the instance of Mr. Calhoun, on the 
 15th of April, 1840, as follows : 
 
 1. " Resolved That a ship or vessel on the high seas, in time of 
 peace, engaged in a lawful voyage, is according to the laws of 
 nations under the exclusive jurisdiction of the state to which her 
 flag belongs as much as if constituting a part of its own domain." 
 
 2. " Resolved That if such ship or vessel should be forced, by 
 stress of weather, or other unavoidable cause into the port, and 
 under the jurisdiction of a friendly power, she and her cargo, and 
 persons on board, with their property, and all the rights belong 
 ing to their personal relations,as established by the laws of the state 
 to which they belong, would be placed under the protection which 
 the laws of nations extend to the unfortunate under such circum 
 stances." 
 
 Without entering into any discussion as to the correctness of 
 these principles, let us admit them to be true to their fullest ex 
 tent, and what is their application to the case of the Amistad 1 If 
 the first of the resolutions declares a sound principle of national 
 law, neither Lieut. Gedney, nor Lieut. Meade, nor any officer of 
 the brig Washington had the shadow of a right even to set foot 
 on board of the Amistad. According to the second resolution, 
 the Africans in possession of the vessel were entitled to all the 
 kindness and good offices due from a humane and Christian nation 
 to the unfortunate ; and if the Spaniards were entitled to the 
 same, it was by the territorial right and jurisdiction of the State of 
 New York and of the Union, only to the extent of liberating their 
 persons from imprisonment. Chevalier d'Argaiz, therefore, totally 
 
10 
 
 misapprehends the application of the principles asserted in these 
 resolutions of the Senate, as indeed Mr. Forsyth appears by his 
 answer to this letter of the Chevalier to be fully aware. From 
 the decisiveness with which on this solitary occasion he meets 
 the pretensions of the Spanish Envoy, a fair inference may be 
 drawn that the Secretary himself perceived that the Senatorial 
 resolutions, instead of favoring the cause of Montes and Ruiz, have 
 a bearing point blank against them. 
 
 The Africans were in possession, and had the presumptive 
 right of ownership ; they were in peace with the United States ; 
 the Courts have decided, and truly, that they were not pirates ; 
 they were on a voyage to their native homes their dulces Jlrgos ; 
 they had acquired the right and so far as their knowledge ex 
 tended they had the power of prosecuting the voyage j the ship 
 was theirs, and being in immediate communication with the shore, 
 was in the territory of the State of New York ; or, if not, at least 
 half the number were actually on the soil of New York, and enti 
 tled to all the provisions of the law of nations, and the protec 
 tion and comfort which the laws of that State secure to every hu 
 man being within its limits. 
 
 In this situation Lieut. Gedney, without any charge or authority 
 from his government, without warrant of law, by force of fire 
 arms, seizes and disarms them, then being in the peace of that 
 Commonwealth and of the United States, drives them on board 
 the vessel, seizes the vessel and transfers it against the will of its 
 possessors to another State. I ask in the name of justice, by 
 what law was this done 1 Even admitting that it had been a case 
 of actual piracy, which your courts have properly found it was not, 
 there are questions arising here of the deepest interest to the 
 liberties of the people of this Union, and especially of the State of 
 New York. Have the officers of the U. S. Navy a right to seize 
 men by force, on the territory of New York, to fire at them, to 
 overpower tVem, to disarm them, to put them on board of a vessel 
 and carry them by force and against their will to another State, 
 without warrant or form of law 1 I am not arraigning Lieut. Ged. 
 ney, but I ask this Court, in the name of justice, to settle it in 
 their minds, by what law it was done, and how far the principle it 
 embraces is to be carried. 
 
 The whole of my argument to show that the appeal should be 
 dismissed, is founded on an averment that the proceedings on the 
 
11 
 
 part of the United States are all wrongful from the beginning. 
 The first act, of seizing the vessel, and these men, by an officer of 
 the navy, was a wrong. The forcible arrest of these men, or a 
 part of them, on the soil of New York, was a wrong. After the 
 vessel was brought into the jurisdiction of the District Court of 
 Connecticut, the men were first seized and imprisoned under a 
 criminal process for murder and piracy on the high seas. Then 
 they were libelled by Lieut. Gedney, as property, and salvage 
 claimed on them, and under that process were taken into the cus 
 tody of the marshal as property. Then they were claimed by 
 Ruiz and Montes and again taken into custody by the court. The 
 District Attorney of Connecticut wrote to the Secretary of State, 
 September 5th, giving him an account of the matter, stating that 
 " the blacks are indicted for the murder of the captain and mate," 
 and "are now in jail at New Haven ;" that " the next term of our 
 Circuit Court sits on the 17th instant, at which time I suppose," 
 that is in italics in the printed document "I suppose it will be 
 my duty to bring them to trial, unless they are in some other way 
 disposed of." This is the first intimation of the District Attorney; 
 it is easy to understand in what " other way" he wished them 
 disposed of. And he closes by saying " should you have any 
 instructions to give on the subject, 1 should like to receive them 
 as soon as may be." 
 
 On the 9th of September, he writes again that he has examined 
 the law, which has brought him fully to the conclusion that the 
 Courts of the United States cannot take cognizance of any offence 
 these people may have committed, as it was done on board a ves 
 sel belonging to a foreign state. And then he says, 
 
 "I would respectfully inquire, sir, whether there are no treaty 
 stipulations with the Government of Spain that would authorize 
 our Government to deliver them up to the Spanish authorities ; 
 and if so, whether it could be done before our court sitsl" 
 
 This is the second intimation from the District Attorney. We 
 shall find others. Now it appears that the Africans were fully in 
 the custody of the Court, first on the criminal charge, and then 
 on the claim to them as property. The Court was to sit in eight 
 days, the District Attorney is satisfied they cannot be tried, and 
 he is anxious to know whether they cannot be disposed of in some 
 way by the Executive, so that the Courts of the United States 
 may have no chance to decide upon the case. May it please your 
 
12 
 
 Honors, I am simply pursuing the chain of evidence in this case, 
 to show the effects of the sympathy in favor of one of the parties 
 and against the other, which the Secretary of State says had be 
 come in a manner "national." The next document is a letter of 
 the Secretary of State to the District Attorney, Sept. 11, 1839 : 
 
 "SiR : Since the receipt of your letter of the 5th instant, relative 
 to the case of the Spanish schooner i Amistad,' brought into the 
 port of New London on the 26th ultimo, by Lieutenant Gedney, 
 of the surveying brig Washington, a communication has been ad- 
 dressed to this department by the minister of Her Catholic Ma 
 jesty, claiming the vessel, cargo and blacks," [vessel, cargo and 
 blacks, the Court will observe,] " on board, as Spanish property, and 
 demanding its immediate release. Mr. Calderon's application will 
 be immediately transmitted to the President for his decision upon 
 it, with which you will be made acquainted without unnecessary 
 delay. In the mean time you will take care that no proceeding of 
 your Circuit Court, or of any other judicial tribunal, places the ves 
 sel, cargo, or slaves beyond the control of the Federal Execu 
 tive. 
 
 " I am, sir, your obedient servant, 
 
 " JOHN FORSYTE." 
 
 I know not how, in decent language, to speak of this assertion 
 of the Secretary, that the minister of Her Catholic Majesty had 
 claimed the Africans " as Spanish property." In Gulliver's no 
 vels, he is represented as traveling among a nation of beings, 
 who were very rational in many things, although they were not 
 exactly human, and they had a very cool way of using language 
 in reference to deeds that are not laudable. When they wished 
 to characterize a declaration as absolutely contrary to truth, they 
 say the man has " said the thing that is not." It is not possible 
 for me to express the truth respecting this averment of the Secre 
 tary of State, but by declaring that he " has said the thing that is 
 not." This I shall endeavor to prove by showing what the de 
 mand of the Spanish minister was, and that it was a totally differ 
 ent thing from that which was represented. 
 
 But I wish first to beg your Honors' special attention to some 
 thing else in this remarkable letter of the Secretary of State. 
 He says, " In the mean time, you will take care that no proceed 
 ing of your Circuit Court, or of any other judicial tribunal, places 
 
13 
 
 the vessel, cargo, or slaves beyond the control of the Federal 
 Executive." Here is a ministerial officer of the Executive Gov 
 ernment, instructing the District Attorney, before the Judiciary 
 has acted upon the case, to take care that no proceeding of any 
 court places these men beyond reach of the Federal Executive. 
 How was he to do it ? In what manner was an Executive officer 
 to proceed, so that neither the Circuit Court of the United States, 
 nor any state Court, could dispose of the vessel or the men in any 
 manner, beyond the control of the Federal Executive. A farther 
 examination of the correspondence in the conclusion, will show 
 how it was intended to be done. But I now come to inquire what 
 was the real demand of the Spanish minister, and to show what 
 was the duty of the Secretary of State on receiving such a de 
 mand. 
 
 Here we have the first letter of Mr. Calderon to Mr. Forsyth, 
 The name of this gentleman is illustrious in the annals of Spain, 
 and for himself personally, during his residence in this country, I 
 have entertained the most friendly and respectful sentiments. I 
 have enjoyed frequent interviews with him, and have found him 
 intelligent, amiable, learned, and courteous, I wish therefore to 
 say nothing respecting him that is personally disrespectful or un 
 kind. But it is my duty to comment with the utmost plainness, 
 and what perhaps your Honors will think severity, on his official 
 letter to the American Secretary of State. His letter begins : 
 
 "Nuw YORK, Sept. 6, 1839. 
 
 "The undersigned, envoy extraordinary and minister plenipo 
 tentiary of her Catholic Majesty the Queen of Spain, has the honor 
 of calling the attention of the honorable John Forsyth, Secretary 
 of State of the United States, to a recent and very public occur 
 rence of which, no doubt, Mr. Forsyth is already informed, and in 
 consequence of which it is the imperious duty of the undersigned 
 to claim an observance of the law of nations, and of the treaties 
 existing between the United States and Spain. The occurrence 
 alluded to is the capture of the Spanish schooner ' Amistad.' 
 
 " This vessel sailed from Havana on the 29th of June, bound to 
 Guanaja, in the vicinity of Porto Principe, under the command of 
 her owner, Don Ramon Ferrer, laden with sundry merchandise, 
 and with fifty-three negro slaves on board ; and, previous to her 
 departure, she obtained her clearance (alijo) from the custom 
 
14 
 
 house, the necessary permit from the authorities for the transpor 
 tation of the negroes, a passport, and all the other documents re 
 quired by the laws of Spain for navigating a vessel and for prov 
 ing ownership of property ; a circumstance particularly important 
 in the opinion of the undersigned." 
 
 Here your Honors will observe the same distinction of " mer 
 chandise and negroes," which was made by the District Attorney? 
 showing the universal sense of the difference between merchan 
 dise and persons. He goes on : 
 
 " During the night of the 30th of said month, or about day 
 break on the following day, the slaves rose upon the crew, and 
 killed the captain, a slave of his, and two sailors sparing only 
 two persons, after ill-treating and wounding them, namely, Don 
 Jose Ruiz and Don Pedro Montes : of whom the former was 
 owner of forty-nine of the slaves, and the latter of the other four. 
 These they retained, that they might navigate the vessel and take 
 her to the coast of Africa. Montes, availing himself of his know 
 ledge of nautical affairs, and under favor of Divine Providence 
 * the favor of Divine Providence !' succeeded in directing the 
 vessel to these shores. He was spoken by various vessels, from 
 the captains of which the negroes bought provisions, but to whom, 
 it seems, he was unable to make known his distress, being closely 
 watched. At length, by good fortune, he reached Long Island, 
 where the * Amistad' was detained by the American brig-of-war 
 4 Washington,' Captain Gedney, who, on learning the circum 
 stances of the case, secured the negroes, and took them with the 
 vessel to New London, in the state of Connecticut. 
 
 " The conduct of that commander and his subalterns toward the 
 unfortunate Spaniards has been that which was to be expected 
 from gentlemen, and from officers in the service of an enlightened 
 nation friendly to Spain. That conduct will be appreciated as it 
 deserves by my august sovereign, and by the Spanish government, 
 and will be reciprocated on similar occasions by the Spaniards 
 a people ever grateful for benefits received." [We shall see some 
 proofs of Spanish gratitude, as we proceed in the case.] 
 
 " The act of humanity thus performed would have been com 
 plete, had the vessel at the same time been set at liberty, and the 
 negroes sent to be tried by the proper tribunal, and by the violat 
 ed laws of the country of which they are subjects. The under 
 signed is willing to believe that such would have been the case r 
 
15 
 
 had the general government been able to interpose its authority in 
 the first instance, as it has probably done during the short interval 
 between the occurrence of this affair and the period when the un 
 dersigned received an authentic statement of the facts." 
 
 This is what the Spanish minister demanded, that the vessel 
 should be set at liberty, and the negroes sent to Cuba to be tried. 
 And he is so confident in the disposition the United States in favor 
 of this demand, that he even presumes the President of the United 
 States had already immediately dispatched an order to the Court 
 in Connecticut, to stay its proceedings and deliver up the negroes 
 to the Government of Spain. 
 
 What combination of ideas led to that conclusion, in the mind 
 of Mr. Calderon, I am not competent to say. He evidently sup 
 poses the President of the United States to possess what we un 
 derstand by arbitrary power the power to decide cases and 
 to dispose of persons and of property, mero motu, at his own dis 
 cretion, and without the intervention of any court. What led him 
 to this imagination I am unable to say. He goes on to say that 
 the officers of the Washington, in the service of the United 
 States, have presented to that incompetent Court, the U. S. Dis 
 trict Court in Connecticut a petition, claiming salvage : " a claim 
 which, in view of existing treaties, the undersigned conceives can 
 not be allowed in the sense in which it is made." This is that 
 most grateful nation ! The deliverers of these two Spaniards, the 
 representative of a most grateful nation insists, are not deserving 
 of any recompense whatever ! 
 
 Now, I beg your Honors to see if there is, among all these spe 
 cifications, any one demand that corresponds with that which the 
 Secretary of State avers to have been made. He demands, 
 
 1st. That the vessel be immediately delivered up to her owner, 
 together with every article found on board at the time of her cap- 
 ture by the Washington, without any payment being exacted on 
 the score of salvage, or any charges made, other than those spe 
 cified in the treaty of 1795, article 1st. 
 
 Yet he had already said the captain, and owner, Ferrer, was 
 killed. 
 
 " 2d. That it be declared that no tribunal in the United States 
 has the right to institute proceedings against, or to impose penal 
 ties upon, the subjects of Spain, for crimes committed on board a 
 Spanish vessel, and in the waters of the Spanish territory." 
 
16 
 
 Declared, by whom ? By the President of the United States. 
 Of course, he does not demand that the " incompetent tribunal' 7 
 in Connecticut, before which the suit was brought, should declare 
 this, but that the President of the United States should issue a 
 proclamation, declaring that no court in this country could hold 
 cognizance of the case. Is there in this a demand that the ne 
 groes should be delivered up as Spanish property 1 It is a direct 
 protest against any judicial tribunal taking cognizance of the case, 
 and that the President should issue a proclamation to prevent any 
 such proceedings whatever. 
 
 " 3d. That the negroes be conveyed to Havana, or be placed at 
 the disposal of the proper authorities in that "part of Her Majesty's 
 dominions, in order to their being tried by the Spanish laws which 
 they have violated ; and that, in the mean time, they be kept in 
 safe custody, in order to prevent their evasion." 
 
 In what capacity does he demand that the President of the Unit- 
 ed States should place himself? Is it a demand to deliver up these 
 people as property ? No. Is it that they should deliver them to 
 the minister himself, as the representative of the Spanish govern 
 ment, to be disposed of according to the laws of Spain ? No. It 
 demands of the Chief Magistrate of this nation that he should first 
 turn himself into a jailer, to keep these people safely, and then 
 into a tipstaff to take them away for trial among the slave-traders 
 of the baracoons. Was ever such a demand made upon any 
 government ? He must seize these people and keep them safely, 
 and carry them, at the expense of the United States, to another 
 country to be tried for their lives ! Where in the law of nations 
 is there a warrant for such a demand 1 
 
 May it please your Honors If the President of the United 
 States had arbitrary and unqualified power, he could not satisfy 
 these demands. He must keep them as a jailer ; he must then 
 send them beyond seas to be tried for their lives. I will not 
 recur to the Declaration of Independence your Honors have it 
 implanted in your hearts but one of the grievous charges brought 
 against George III. was, that he had made laws for sending men 
 beyond seas for trial. That was one of the most odious of those 
 acts of tyranny which occasioned the American revolution. The 
 whole of the reasoning is not applicable to this case, but I submit 
 to your Honors that, if the President has the power to do it in the 
 case of Africans, and send them beyond seas for trial, he could do 
 
17 
 
 it by the same authority in the case of American citizens. By a 
 simple order to the marshal of the district, he could just as well 
 seize forty citizens of the United States, on the demand of a fo 
 reign minister, and send them beyond seas for trial before a foreign 
 court. The Spanish minister farther demands 
 
 " 4th. That if, in consequence of the intervention of the autho 
 rities of Connecticut, there should be any delay in the desired 
 delivery of the vessel and the slaves, the owners both of the for 
 mer be indemnified for the injury that may accrue to them." 
 
 Now, how are all these demands to be put together ? First, he 
 demands that the United States shall keep them safely, and send 
 them to Cuba, all in a lump, the children as well as Cinque and 
 Grabbo. Next, he denies the power of our courts to take any 
 cognizance of the case. And finally, that the owners of the slaves 
 shall be indemnified for any injury they may sustain in their pro 
 perty. We see in the whole of this transaction, a confusion of 
 ideas and a contradiction of positions, from confounding together 
 the two capacities in which these people are attempted to be held. 
 One moment they are viewed as merchandise, and the next as 
 persons. ^The Spanish minister, the Secretary of State, and every 
 one who has had anything to do with the case, all have run into 
 these absurdities. These demands are utterly inconsistent. First, 
 they are demanded as persons, as the subjects of Spain, to be de 
 livered up as criminals, to be tried for their lives, and liable to be 
 executed on the gibbet. Then they are demanded as chattels, the 
 same as so many bags of coffee, or bales of cotton, belonging to 
 owners, who have a right to be indemnified for any injury to their 
 property. 
 
 I now ask if there is, in any one or in all those specifications, 
 that demand which the Secretary of State avers the Spanish Min 
 ister had made, and which is the basis of the whole proceeding in 
 this case on the part of the Executive, 
 
 The letter of the Secretary, which is the foundation of the 
 whole proceeding of the District Attorney, in making the United 
 States a party, on the ground of a. demand by the Spanish Minister 
 for the delivery of these peopie as property, " says the thing that 
 is not." The letter proceeds: 
 
 "In support of these claims, the undersigned invokes the law 
 of nations, the stipulations of existing treaties, and those good 
 feelings" [good feelings, indeed, he might well say, where all 
 3 
 
18 
 
 the feelings were in favor of his demand] " so necessary to the 
 maintenance of the friendly relations that subsist between the 
 two countries, and are so interesting to both. 
 
 " The undersigned would be apprehensive of offending Mr. For- 
 syth by supposing it in the least degree necessary to bring to his 
 recollection his own well-known construction (disposiciones) of 
 the law of nations, in a case analogous to the one under conside 
 ration." 
 
 This is what the logicians call argumentum ad hominem an ap 
 peal, first to the feelings of the individual, not to his sense of 
 justice. He then brings up to Mr. Forsyth his own construction 
 of the law of nations, as given in another case, which he deems 
 analogous. Perhaps I may be justified in conjecturing to what 
 case he alludes, and I will say that, if he alludes to any case of 
 public notoriety, I shall be able to show, before I close, that there 
 is no analogy to this case. 
 
 M, Calderon de la Barca then refers to several treaty stipula 
 tions in support of his demand, and particularly the 8th, 9tb, and 
 10th articles of the treaty of 1795, continued in force by the 
 treaty of i819. 
 
 " AUT. 8. In case the subjects and inhabitants of either party, 
 with their shipping, whether public and of war, or private and of 
 merchants, be forced, through stress of weather, pursuit of pirates 
 or enemies, or *ny other urgent necessity, for seeking of shelter 
 and harbor, to retreat and enter into any of the rivers, bays, roads, 
 or ports, belonging to the other party, they shall be received and 
 rented with all humanity, and enjoy all favor, protection, and 
 help ; and they shall be permitted to refresh and provide them 
 selves, at reasonable rates, with victuals and all things needful for 
 the subsistence of their persons, or reparation of their ships, and 
 prosecution of their vcyage ; and they shall noways be hindered 
 from returning out of the said ports or roads, but may remove 
 and depart when and whither they please, without any let or hin 
 drance." 
 
 This is a provision for vessel with their owners, driven into 
 port by distress. Who was the Spanish owner here with his ship? 
 There was none. I say the Africans were here with their ship. 
 If you say the original owner is refend to, in whose name the 
 ship's register was given, he was dead, ht was not on board, and 
 could not claim the benefit of this article. The vessel either be 
 
19 
 
 longed to the Africans, in whose possession it was found, and who 
 certainly had what is everywhere the. first evidence of property, 
 or there was no person to whom this article could apply, and it 
 was not casus fcederis. The truth is, this article was not intended 
 to apply to such a case as this, but to the common case, in regard 
 to which it has doubtless been carried into execution hundreds of 
 times, in meeting the common disasters of maritime life. 
 
 The Africans, who certainly had the prima facie title to the 
 property, did not bring the vessel into our waters themselves, but 
 were brought here against their will, by the two Spaniards, by 
 stratagem and deception. Now, if this court should consider, as 
 the courts below have done, that the original voyage from Lorn- 
 boko, in Africa, was continued by the Spaniards in the Amistad, 
 and that pursuing that voyage was a violation of the laws of the 
 United States, then the Spaniards are responsible for that offence. 
 The deed begun in Africa was not consummated according to its 
 original intention, until the negroes were landed at their port of 
 final destination in Porto Principe. The clandestine landing in 
 Havana, the unlawful sale in the barracoons, the shipment en 
 board the Amistad, were all parts of the original transact/on. 
 And it was in pursuit of that original unlawful intent that the 
 Spaniards brought the vessel by stratagem into a port of the Unit 
 ed States. Does the treaty apply to such voyages / Suppose the 
 owner had been on board, and his voyage lawful, what does the 
 treaty secure to him 1. Why, that he might repair his ship, and 
 purchase refreshments, and continue his voyage, Ruiz and Mon. 
 tes could not continue the voyage. Bi*, suppose the article 
 applicable, and what were the United States to do ? They must 
 place those on board the ship in the situation they were in when 
 taken, that is, the Africans in possession, with the two Spaniard g 
 as their prisoners, or their slaves, as the case might be j the ne. 
 groes as masters of the ship, to continue their voyage, which on 
 their part was certainly lawful. 
 
 If any part of the article was applicable to the case it was in 
 favor of the Africans. They ^ere in distress, and were brought 
 into our waters by their enemies, by those who sought, and who 
 are still seeking, to reduce them from freedom to slavery, as a 
 reward for having spared their lives in the fight. If the good 
 offices of the government are to be rendered to the proprietors 
 of shipping in distress, they are due to the Africans only, and the 
 
20 
 
 United States are now bound to restore the ship to the Africans, 
 and replace the Spaniards on board as prisoners. But the article 
 is not applicable at all. It is not a casus faderis. The parties to 
 the treaty never could have had any such case in view. The 
 transaction on board of the vessel after leaving Havana entirely 
 changed the circumstances of the parties, and conferred rights 
 on my most unfortunate clients, which cannot but be regarded by 
 this honorable court. 
 
 Next we have article 9 : 
 
 "ART. 9. All ships and merchandise, of what nature soever, 
 which shall be rescued out of the hands of any pirates or robbers 
 on the high seas, shall be brought into some port of either state, 
 and shall be delivered to the custody of the officers of that port, 
 in order to be taken care of, and restored entire to the true pro 
 prietor, as soon as due and sufficient proof shall be made con 
 cerning the property thereof." 
 
 Was this ship rescued out of the hands of pirates and robbers 1 
 Is this Court competent to declare it ? The Courts below have 
 decided that they have no authority to try, criminally, what hap 
 pened on board the vesseL They have then no right to regard 
 those who forcibly took possession of the vessel as pirates and 
 robbers. If the sympathies of Lieutenant Gedney, which the 
 Secretary of Slate says had become national, had been felt for all 
 the parties, in due proportion to their sufferings and their deserts, 
 who were the pirates and robbers ? Were they the Africans 1 
 When they were broaght from Lomboko, in the Tecora, against 
 the laws of Spain, against the laws of the United States, and 
 against the law of nations, so far as the United States, and Spain, 
 and Great Britain, are concerned, who were the robbers and pi 
 rates 1 And when the saim voyage, in fact, was continued in the 
 Amistad, and the Africans <vere in a perishing condition in the 
 hands of Ruiz, dropping dead from day to day under his treat 
 ment, were they the pirates and robbers 1 This honorable Court 
 will observe from the record that there were fifty-four Africans 
 who left the Havana. Ruiz, says In his libel that nine had died 
 before they reached our shores. The marshal's return shows that 
 they were dying day after day from the effects of their sufferings. 
 One died before the Court sat at New London. Three more died 
 before the return was made to the Court at Hartford only seven 
 teen days and three more between that and November. Sixteen 
 
21 
 
 fell victims before November, and from that time not one has 
 died. Think only of the relief and benefit of being restored to 
 the absolute wants of human nature. Although placed in a con 
 dition which, if applied to forty citizens of the United States, we 
 should call cruel, shut up eighteen months in a prison, and enjoy 
 ing only the tenderness which our laws provide for the worst of 
 criminals, so great is the improvement of their condition from 
 what it was in the hands of Ruiz, that they have perfectly recov 
 ered their health, and not one has died j when, before that time, 
 they were perishing from. hour to hour. 
 
 At the great day of accounts, may it please the Court, who is 
 to be responsible for those sixteen souls that died 1 Ruiz claims 
 those sixteen as his property, as merchandise. How many of 
 them, at his last hour, will pass before him and say, " Let me sit 
 heavy on thy soul to-morrow !" 
 
 Who, then, are the tyrants and oppressors against whom our 
 laws are invoked 1 Who are the innocent sufferers, for whom we 
 are called upon to protect this ship against enemies and robbers 1 
 Certainly not Ruiz and Monies. 
 
 But, independently of this consideration, the article cannot ap 
 ply to slaves. It says ships and merchandise. Is that language 
 applicable to human beings 1 Will this Court so affirm 1 It says 
 they shall be restored entire. Is it a treaty between cannibal na 
 tions, that a stipulation is needed for the restoration of merchan 
 dise entire, to prevent parties from cutting off the legs and arms 
 of human beings before they are delivered up ! The very word 
 entire in the stipulation is of itself a sufficient exclusion of human 
 beings from the scope of the article. But if it was intended to 
 embrace human beings, the article would have included a provis 
 ion for their subsistence until they are restored, and an indemni 
 fication for their maintenance to the officers who are charged with 
 the execution of the stipulation. And there is perhaps needed a 
 provision with regard to the institutions of the free states, to pre 
 vent a difficulty in keeping human beings in the custom house, 
 without having them liable to the operation of the local law, the 
 habeas corpus, and the rights of freedom. 
 
 But with regard to article 9, 1 will speak of my own knowledge, 
 for it happened that on the renewal of the treaty in 1819, the whole 
 of the negotiations with the then minister of Spain passed through 
 my hands, and I am certain that neither of us ever entertained an 
 idea that this word merchandise was to apply to human beings. 
 
Mr. Calderon also quotes article 10. 
 
 "ART. 10. When any vessel of either party shall be wrecked, 
 foundered, or otherwise damaged, on the coasts or within the do 
 minion of the other, their respective subjects or citizens shall re 
 ceive, as well for themselves as for their vessels and effects, the 
 same assistance which would be due to the inhabitants of the coun 
 try where the damage happens, and shall pay the same charges 
 and dues only as the said inhabitants would be subject to pay in a 
 like case ; and if the operations of repair should require that the 
 whole or any part of the cargo be unladen, they shall pay no du 
 ties, charges, or fees, on the part which they shall relade and 
 carry away." 
 
 This article, again, has nothing to do with the case. The 
 Amistad was neither wrecked nor foundered, nor otherwise da 
 maged. She came into our waters voluntarily, so far as the Span 
 iards were concerned, but involuntarily, so far as concerned the 
 Africans, who were in possession of the vessel. They were in 
 tentionally prosecuting a voyage to Africa, but were brought to 
 our shores by deception, and against their wills. This is not casus 
 fcederis. The treaty has no application here. But if, by any lati 
 tude of construction, it could be applied, its benefits belong to the 
 Africans, for they were pursuing a lawful voyage, and not to the 
 Spaniards, who were on an unlawful voyage, in the prosecution 
 of the slave trade. 
 
 But the article says the same assistance shall be afforded that 
 our own citizens would be entitled to receive in like circum 
 stances. Let us apply the rule. Suppose the Amistad had been 
 a vessel of the United States, owned and manned by citizens of 
 the United States, and in like circumstances. Say it was a Balti 
 more clipper, fitted for the African slave trade, and having per 
 formed a voyage, had come back to our shores, directly or indi 
 rectly, with fifty-four African victims on board, and was thus 
 brought into port what would be the assistance guarantied by 
 our laws to American citizens, in such circumstances ? The cap 
 tain would be seized, -tried as a pirate, and hung! And every 
 person concerned, either as owners or on board the ship, would be 
 severely punished. The law makes it a capital offence for the 
 captain, and no appeal to this Court would save him from the gib 
 bet. Is that the assistance which the Spanish minister invokes for 
 Ruiz and Montes? That is what our laws would secure to our 
 own citizens in like circumstances. And perhaps it would be a 
 
23 
 
 reward nearer their merits than the restoration of these poor ne 
 groes to them, or enabling them to complete their voyage. 
 
 But my clients are claimed under the treaty as merchandise, 
 rescued from pirates and robbers. Who were the merchandise, 
 and who were the robbers 1 According to the construction of the 
 Spanish minister, the merchandise were the robbers, and the rob 
 bers were the merchandise. The merchandise was rescued out of 
 its own hands, and the robbers were rescued out of the hands of 
 the robbers. Is this the meaning of the treaty ? Will this Court 
 adopt a rule of construction in regard to solemn treaties that will 
 sanction such conclusions 1 There is a rule in Vattel that no 
 construction shall be allowed to a treaty which makes it absurd. 
 Is any thing more absurd than to say these forty Africans are rob 
 bers, out of whose hands they have themselves been rescued 1 
 Can a greater absurdity be imagined in construction than this, 
 which applies the double character of robbers and of merchandise 
 to human beings ? 
 
 May it please your Honors, there is not one article of the treaty 
 that has the slightest application to this case, and the Spanish, 
 minister has no more ground for appealing to the treaty, as a war 
 rant for his demand, than he has for relying on the law of nations. 
 
 The next argument that follows is so peculiar that I find it diffi 
 cult to give a distinct idea of its pupose or application. He 
 says, 
 
 " The crime in question is one of those which, if permitted to 
 pass unpunished, -would endanger the internal tranquillity and the 
 safety of the island of Cuba, where citizens of the United States 
 not only carry on a considerable trade, but where they possess 
 territorial properties which they cultivate with the labor of Afri 
 can slaves. These, on learning that the crime alluded to had been 
 committed with impunity, (and their friends would not fail to ac 
 quaint them with the fact) would lose none of the opportunities 
 for attempting revolt and evasion, which are afforded by the fre 
 quent and daily necessity of conveying negroes by sea from one 
 quarter of the island to another 5 and to guard against this it would 
 be necessary to use additional precautions at a great expense." 
 
 I believe, may it please the Court, that this is not a good argu 
 ment before this court, to determine questions of law and justice 
 by the consideration that there are American citizens who own 
 plantations in the island of Cuba, which they cultivate by the la- 
 
bor of slaves. They own their plantations and slaves there, sub 
 ject to. the laws of Spain, which laws declare the African slave 
 trade to be felony. The Spanish minister has no right to appeal 
 to our courts to pass a particular sentence between parties in a 
 suit, by considerations of their personal interest, or that of other 
 American citizens in the Island of Cuba. What would become of 
 the liberties of this nation if our courts are to pass sentence be 
 tween parties, upon considerations of the effect it may have upon 
 the interest of American citizens, scattered as they may be in all 
 parts of the world 1 If it is a valid consideration when applied to 
 Cuba and the American owners of sugar estates and slaves there, 
 it applies equally to all other countries where American citizens 
 may have property ; to China, Hindostan, or the Feejee Islands. 
 It was no proper argument for the Spanish minister to urge upon 
 the American Secretary of State. It was undoubtedly calculated 
 and designed to influence his sympathy in the case that sympa 
 thy with one of the parties which he says had become national. 
 It was calculated to excite and to influence the Secretary of State 
 not only by the effect to be produced in the island of Cuba, but 
 perhaps also by a regard to certain interests nearer home. But 
 was that JUSTICE ? Was that a ground on which courts of jus 
 tice will decide cases 1 I trust not. 
 
 There are a few portions of this letter, which I had rather your 
 Honors would read when you are together in consultation, than to 
 read them myself in this place. I will not trust myself to com 
 ment upon them as they deserve. I trust that your Honors, in the 
 pursuit of JUSTICE, will read them, as the document will be in 
 your hands, and you will see why I abstain from doing it. Mr. 
 Calderon proceeds to say, 
 
 " If, on the other hand, they should be condemned by the in 
 competent tribunal that has taken upon itself to try them as pi 
 rates and assassins, the infliction of capital punishment in this case 
 would not be attended with the salutary effects had in view by the 
 law when it resorts to this painful and terrible alternative, name 
 ly, to prevent the commission of similiar offences. In such case, 
 the indemnification I officially ask for the owners would be a very 
 slender compensation ; for, if the property remained unimpaired, 
 as it would remain, the satisfaction due to the public would not 
 be accorded." 
 
 And that is a reason why the President of the United States 
 
25 
 
 was to issue his lettre de cachet, and send these unfortunate indi 
 viduals to Cuba. I abstain now from reading the subsequent pas 
 sages.* He concludes by saying, 
 
 " In the islands above mentioned the citizens of the United 
 States have always met with a favorable reception and kind treat- 
 ment. The Spanish Government, for the protection of their pro- 
 perty, would immediately accord the extradition of any slaves that 
 might take refuge there from the southern states. Being itself 
 exact in the observance of treaties, it claims the more justly the 
 execution of them, and a reciprocal good correspondence, from a 
 nation, the ally and neighbor of Spain, to whom so many proofs 
 have been afforded of the high degree in which her friendship is 
 esteemed." 
 
 They will readily yield fugitive slaves ! Was this an argument, 
 I ask the honorable Court, to be addressed to the Secretary of 
 State 1 Is it upon these principles that cases are to be decided ? 
 Is it by these considerations that the action of governments is to 
 be determined 1 Shall these men be gi^en up on the offer of an 
 equivalent'? " If you will deliver these Africans to me, for whose 
 
 * Mr. Adams' forbearance will hardly be appreciated unless it is known what 
 it was that he omitted to read. That portion of the letter of Mr. Calderon is 
 therefore appended to this note. 
 
 i "The dread of a repetition of these acts might be expected to take possession of 
 the minds of the people residing in the islands of Cuba and Porto-Rico ; and, in 
 lieu of the harmony and good feeling subsisting between them and the citizens of 
 the United States, it would not be surprising, nor would it afford a cause for com 
 plaint, if sentiments were awakened of a different nature, and highly prejudicial to 
 the interests of both parties. How can the man who promotes or advocates dis 
 cord in families expect to be regarded with benevolence ? or how can he who acts 
 in such a manner pretend to the title of friend ? 
 
 " The undersigned does not apprehend that the fears herein expressed by him will 
 be deemed exaggerated or unfounded. No one is ignorant of the existence of a 
 considerable number of persons who, prompted by a zeal which it does not belong 
 to him to qualify, are employing all the means which knowledge and wealth can 
 afford for effecting, at any price, the emancipation of the slaves. Many of them, 
 either because they are persuaded of the philanthropy of their designs, or assuming 
 this virtue as a cloak, have no hesitation in repaying the hospitality they receive 
 by the seduction of the slaves of their host, especially if they are skilful in any 
 trade. 
 
 " Having induced them to abandon their masters, they ship them onboard some 
 vessel, where they retain them in a worse state of captivity than before, or send 
 them to the United States to be set at liberty; thus appropriating to themselves the 
 property of another, and deliberately JCOOTI milling a theft, while, perhaps, they be- 
 
 4 
 
M 
 
 blood all the slave-traders of Cuba thirst, and any slave from the 
 south shall make his escape and come to Cuba, we will readily de 
 liver him up." What is this argument as addressed to the Secre 
 tary of State 1 It may be a very easy thing for the Governor at 
 Havana to seize a fugitive southern p-lave, or a pretended fugitive, 
 as the case may be, and put him on boaid a vessel and send him 
 to one of our Southern states. The learned Attorney General, I 
 thinU, read some authorities to show that this Governor has royal 
 powers, about equal to those of the King, and it may be easy for 
 him to seize any man, black or white, slave or free, who may be 
 claimed as a slave, and send him beyond seas for any purpose. 
 But, has the President of the United States any such powers? 
 Can the American Executive do such things 1 If he is to do 
 them, I should hope, at least, that it might be under treaty stipula 
 tions rather more adapted to the object than these. It was going 
 quite far enough, I should think, to require the President of the 
 U. S. to keep these men safely, and send them back at the expense 
 of this nation, without making this what shall I call it 1 I will 
 not undertake to qualify it in words this offer to send back the 
 fugitive slaves of the South as an equivalent, provided the Presi 
 dent will consent to deliver up these MEN, by a despotic act, to sa 
 tiate the vengeance of the slave-traders at Havana. 
 
 I have now, may it please the Court, examined at great length, 
 and with tedious detail, the letter of ihe Spanish minister, demand 
 ing the interposition of the national Executive to restore these 
 unfortunate Africans to the island of Cuba. And now I may in- 
 quire of your Honors, what, in your opinion, was the duty of the 
 
 lieve that they are performing a meritorious act. In the meantime, the only 
 
 resource of the ruined Spanish proprietor is to apply, at an enormous expense, to 
 
 the tribunals of a foreign country, where in many places public opinion throws in 
 
 the way of the applicant for justice, in matters of this nature, insuperable obstacles, 
 
 Of the many cases that might be referred to, in proof of the justice of this re- 
 
 mark, one is that of John Smith, mate of the brig Swiftsure, who concealed and 
 
 brought away with him a negro who was cook in a hotel where he was staying ; 
 
 upon which subject the undersigned wrote to the Secretary of State on the J9th 
 
 of November, 1836, and now addresses him again in a separate communication. 
 
 That the fears of the undersigned are not without foundation, is also evident front 
 
 the excitement which this occurrence has produced in the public mind, from the 
 
 language used by some of the public papers in relating it, and from the exertions 
 
 that many persons have commenced making in favor of the revolted slaves of the 
 
 Amistad,' for whose defence they have engaged some of ike most able counsel' 
 
 low of Boston, New Haven and New York." 
 
27 
 
 Secretary of State, on receiving such a letter. And in the first 
 place, what did he do 1 
 
 His first act was, to misrepresent the demand, and to write to 
 the District Attorney in Connecticut, directing him to pursue a 
 claim for the possession of these people on behalf of the United 
 States, on the ground that the Spanish minister had demanded 
 their delivery to him, as the property of Spanish subjects, and or- 
 dering him to take care that no court should place them beyond 
 the control of the Executive. That is what he did. And the con 
 sequence is the case now before the court. The Attorney of the 
 United States pursued hisorders. He stated, in his claim before 
 the District Court, that the Spanish minister had demanded their 
 restoration as property ; and then, as if conscious that this claim 
 might not secure the other purpose, of keeping them at all events 
 within the control of the Executive, he added, of his own head, 
 (for it does not appear that he had any instructions on this point,) 
 a second count, claiming, on behalf of the United States, that if 
 the court should find they were not slaves by the laws of Spain, 
 hut that they were brought to our shores in violation of the act of 
 Congress for the suppression of the slave trade, then they should 
 be placed at the disposal of the President, to be sent to Africa, 
 according to the provisions of that act. This count was undoubt 
 edly added in consequence of the order not to let them be placed 
 beyond the control of the Executive. In a subsequent term of the 
 court, he filed a new libel, in which this alternative demand was 
 omitted. Why was that done 1 I can conceive no other reason 
 than that he had received such instructions from the Executive. 
 
 Those instructions do not appear among the printed documents, 
 but it does not follow that none were given, for the communication 
 of the President, in answer to the call of the House of Represent 
 atives, was not a full one, as I know of my own knowledge. The 
 demand was for all information not incompatible with the public 
 interest, and under that proviso many things were kept back. But 
 there can be no doubt that it was for the purpose of complying 
 with the first order of the District Attorney inserted in the second 
 count, and that it was by the instructions of the department he 
 afterward withdrew it. 
 
 [Mr. Baldwin. The count was not withdrawn. A new libel was 
 entered, having only one count, but the first libel was. not with 
 drawn.] 
 
28 
 
 Very well it amounts to this: that the Executive did not 
 choose to hold itself responsible for that construction of the act of 
 Congress. This appears from the appeal. What have the United 
 States appealed from ? Why, from a decree of the court, giving 
 them precisely what they had claimed hy the District Attorney- 
 The Attorney knew that the libel grounded on the demand of the 
 Spanish minister, (ostensibly, for I have shown that it was a falsi 
 fication of the terms of that demand by the Secretary of State,) 
 was not sufficient to place the Africans beyond the control of the 
 Executive, in a certain alternative, and therefore he calls upon the 
 Court to put them in the hands of the President, to be sent to Afri. 
 ca that is, to complete their own voyage. 
 
 Well, the District Court investigated the case r and dissipated 
 entirely the pretension that these Africans could be claimed in 
 any way as merchandise. They went the length of declaring that 
 the only ladino on board, the boy Antonio, concerning whom there 
 was the slightest pretext of a claim that he was a slave, should be 
 delivered up to the Spanish consul, on behalf of the representatives 
 of his late owner, Captain Ferrer. The United States do not ap^ 
 peal from that decision, and there has been no appeal, although 
 we might have appealed with propriety. And I confess that, had 
 I been of counsel in that stage of the proceedings, I should have 
 been much disposed to appeal, on the ground that there was no 
 article of the treaty which has any thing to do with the case. I 
 conceive that this part of the decree of the District Court is not 
 warranted by any law or treaty whatever. 
 
 But 1 do not desire to argue that question now, for I perceive 
 that the district judge, in giving his decision, places it partly on 
 the ground that the boy is desirous of returning. And as volenti 
 rton fit injvria, I reconcile my mind to that part of the decision 
 for we could certainly have no possible motive to interfere with 
 the wishes of the boy. If he really has the deire to return to- 
 slavery in Cuba, it would be far from my desire to interfere with 
 his wishes, however strange and unnatural I might deem them to 
 be. But I must, at the same time, as an individual, protest against 
 his delivery by aay compulsion, or on any ground of obligation in 
 the treaty ; for I must maintain, that there is no one of the articles 
 in the treaty cited that has any application whatever to the case. 
 
 And now, may it please your Honors, so strange and singular is 
 every thing that happens, connected with this most singular case r 
 
29 
 
 I am informed that, after all, this boy has not been sent to Cuba, 
 notwithstanding his anxiety to go, and the desire of the Spanish 
 consul for his restoration, with a decree of the Court agreeable to 
 his demand. I am informed that he has remained a whole year in 
 prison with the Africans, and is, at this moment, in the custody of 
 the marshal, by what warrant or process I know not, or at whose 
 expense. 
 
 The reason for this extended analysis of the demand by the 
 Spanish minister is, that we may be prepared to inquire what an 
 swer he ought to have received from th'e American Secretary. I 
 aver, that it was the duty of the Secretary of State instantly to 
 answer the letter, by showing the Spanish minister that all his de 
 mands were utterly inadmissible, and that the government of the 
 United States could do nothing of what he required. It could not 
 deliver the ship to the owner, and there was no duty resting on 
 the United States to dispose of the vessel in any such manner. 
 And as to the demand that no salvage should be taken, the Span 
 ish minister should have been told that it was a question depend, 
 ing exclusively on the determination of the courts, before whom 
 the case was pending for trial according to law. And the Secre 
 tary ought to have shown Mr. Calderon, that the demand for a 
 proclamation by the President of the United States, against the 
 jurisdiction of the courts, was not only inadmissible but offensive 
 it was demanding what the Executive could not do, by the con 
 stitution. It would be the assumption of a control over the judi 
 ciary by the President, which would overthrow the whole fabric 
 of the constitution ; it would violate the principles of our govern 
 ment generally and in every particular ; it would be against the 
 rights of the negroes, of the citizens, and of the States. 
 
 The Secretary ought to have done this at once, without waiting 
 to consult the President, who was then absent from the city. The 
 claim that the negroes should be delivered was equally inadmissi 
 ble with the rest ; the President has no power to arrest either citi 
 zens or foreigners. But even that power is almost insignificant 
 compared with that of sending men beyond seas to deliver them 
 up to a foreign government. The Secretary should have called 
 upon the Spanish ambassador to name an instance where such a 
 demand had been made by any government of another government 
 that was independent. He should have told him, that such a de 
 mand was treating the President of the United States, not as the 
 
30 
 
 head of a nation, but as a. constable, a catchpole a character that 
 it is not possible to express in gentlemanly language. That is 
 what this demand makes of the President of the United States. 
 
 The Secretary should also have set the Spanish Minister right 
 with regard to the authorities before whom the question was pen 
 ding. He should have told him that they were not the 
 authorities of the state of Connecticut but of the United States, 
 the courts of the Union in the state of Connecticut. He should 
 have corrected this mistake of the minister at the beginning. It 
 was a real misapprehension, which has continued through the 
 whole proceeding to the present time, and it ought to have been 
 corrected at first. And what is still more remarkable, the same 
 mistake of calling it the court of Connecticut was made by Mr. 
 Forsyth himself long after. 
 
 But what did the Secretary do in fact ? He barely replies to 
 Mr. Calderon, that he had sent his letter to the President for his 
 consideration, and that "no time will be needlessly lost, after his 
 decision upon the demand it prefers shall have reached me, in 
 communicaiing to you his views upon the subject." 
 
 And now, from that day to this, the Secretary of State has 
 never answered one of these demands, nor arrested one of these 
 misapprehensions, nor asserted the rights and the honor of the 
 nation aginst one of these most extraordinary, inadmissible, and 
 insolent demands. He has degraded the country, in the face of 
 the whole civilized world, not only by allowing these demands to 
 remain unanswered, but by proceeding, I aun obliged to say, 
 throughout the whole transaction, as if the Executive were 
 earnestly desirous to comply with every one of the demands. In 
 the very misrepresentations of those demands, in his instructions 
 to the District Attorney, under which this case is brought here, 
 why does he take such a course ? The Spanish Minister pro 
 nounced the Court before which the Secretary brought the ques 
 tion, an incompetent tribunal and this position has been main 
 tained by the Legation of Spain down to this very month, that a 
 letter of Chevalier d'Argaiz officially protests against the jurisdic- 
 tiori of the courts before which the Secretary professes to be 
 prosecuting the claim of this very minister ! 
 
 Why does the Spanish Minister persist in such inadmissible 
 pretensions 1 It is because they were not met in limine in a 
 proper manner because he was not told instantly, without the 
 
31 
 
 delay of an hour, that this Government could never admit such 
 claims, and would be offended if they were repeated, or any por 
 tion of them. Yet all these claims, monstrous, absurd and inad 
 missible as they are, have been urged and repeated for eighteen 
 months, upon our Government, and an American Secretary of 
 State evades answering any of them evades it to such an 
 extent that the Spanish Minister reproaches him for not meeting 
 his arguments. 
 
 The demand of Mr. Calderon was dated September 6. The 
 order of the Secretary to the District Attorney, in regard to the 
 suit, was dated September 11, in which he says that <l a commu 
 nication has been addressed to this department by the Minister of 
 Her Catholic Majesty, CLAIMING THE VESSEL, CARGO, AND BLACKS ON 
 BOARD, AS SPANISH PROPERTY, and demanding its immediate release." 
 On the 23d of September, the Secretary writes to the Spanish 
 Minister as follows : 
 
 SIR : In the examination of the case of the Spanish schooner 
 "Amistad," the only evidence at present within reach of this 
 department is that presented by the ship's paper j and the pro 
 ceedings of the court of inquiry held by a district judge of Con 
 necticut, on board the schooner, at the time the negroes in whose 
 possession she was found, were imprisoned for the alledged mur 
 der of the captain and mate of the vessel. If you have any other 
 authentic documents relating to the question or evidence of facts 
 which can be useful to a proper understanding of it, I have the 
 honor to request by the direction of the President, that you will 
 communicate them to me with as little delay as practicable. 
 
 Here the Secretary reiterates the error of the Spanish minister, 
 instead of correcting it, with regard to the character of the Court 
 before which the case was pending. The Secretary of State calls 
 the United States District for Connecticut " a District Court of 
 Connecticut." The Spanish Minister could not be expected to 
 acquire a correct understanding of the case, unless he was in 
 formed, but here he has his error confirmed. 
 
 The Secretary further requests the ambassador, if he has any 
 farther documents, "that you will communicate them to me." 
 What had he to do with this evidence? The Spanish minister 
 had made a certain demand upon the government of the United 
 States. Whether it was what it appears to be, or whether it was 
 what the Secretary represented it to be in his orders to the Dis- 
 
32 
 
 trict Attorney, it was no part of the business of the American 
 Secretary of State to look after the evidence. Still, if he had 
 requested the minister to communicate the evidence to the Court, 
 it might not have been exactly improper, but only officious. If 
 the Spanish Minister chose to go into our courts in support of the 
 private claims of Spanish subjects, he could do it, and it was his 
 business to bring forward the proper evidence in support of his 
 claim. Why, then, does the Secretary call upon him to furnish 
 these documents to the Executive Department 1 Your Honors 
 will judge whether this letter is or is not evidence of a deter 
 mination then existing on the part of the Executive, to decide this 
 case independently of the judiciary, and ex parte. 
 
 Mr. Calderon replies that he has no other evidence to furnish. 
 The next document is the letter of his successor, the Chevalier 
 d'Argaiz : 
 
 NEW- YORK, October 3, 1839. 
 
 The undersigned, envoy extraordinary and minister plenipoten 
 tiary of Her Catholic Majesty, has the honor of commencing his 
 official correspondence with you, sir, by soliciting an act of jus 
 tice, which, not being in any way connected with the principal 
 question as yet remaining unsettled by the cabinet, relative to the 
 negroes found on board the schooner Amistad on her arrival on 
 these coasts, he does not doubt will be received by you in the 
 manner which he has every reason to expect, from the circum 
 stance that all preceding acts of the department under your 
 charge have been dictated by the principles of rectitude and 
 reciprocity. 
 
 Her Majesty's vice-consul at Boston, under date of the 24th of 
 September last, says, among other things : 
 
 " As it appears from the papers of the schooner that she, as well 
 as her cargo, are exclusively Spanish property, it seems strange 
 that the Court of New London has not yet ordered the delivery 
 of one or both to the owners, if they are present, or to me, as 
 their agent, born in that part of the Union" [This is a mis-trans 
 lation ; it means the official agent in that part of the Union] 
 " agreeably to the articles of the treaty now in force between 
 the two countries. The delay in the delivery would not be of so 
 much consequence to the proprietors if the vessel did not require 
 immediate repairs, in order to preserve her from complete 
 destruction, and if it were not material that a large part of the 
 cargo should be sold on account of its bad condition. 
 
33 
 
 Here we see the same unfortunate misapprehension continued. 
 The new Spanish minister calls upon the Secretary of State to put 
 the " Court of New London" into speedy action, to lessen the 
 danger of loss to the proprietors hy delay, and the Secretary of 
 State takes no pains to correct the error. 
 
 On the 21th of October, the Secretary of State wrote again to 
 Mr. Argaiz, on another subject, which is not now before this 
 Court, the arrest of Ruiz and Montes, at the suit of some of the 
 Africans, in the courts of the State of New York. Mr. Argaiz 
 protested against the arrest, and claims " the interposition of the 
 Executive in procuring their liberation, and indemnity for the 
 losses and injury they may have sustained." To that the Secre 
 tary replies: 
 
 " It appears from the documents accompanying the note of the 
 Chevalier d' Argaiz, that the two Spanish subjects referred to 
 were arrested on process issuing from the Superior Court of the 
 city of New York, at the suit of, and upon affidavits made by cer 
 tain colored men, natives of Africa, for the purpose of securing 
 their appearance before the proper tribunal, to answer for wrongs 
 alledged to have been inflicted by them upon the persons of the 
 said Africans ; and, consequently, that the occurrence constitutes 
 a simple case of resort by individuals against others to the judi 
 cial courts of the country, which are equally open to all without 
 distinction, and to which it belongs exclusively to decide, as well 
 upon the right of the complainant to demand the interposition of 
 their authority, as upon the liability of the defendant to give re 
 dress for the wrong alledged to have been committed by him. This 
 being the only light in which the subject can be viewed, and the 
 constitution and laws having secured the judicial power against 
 all interference. on the part of the Executive authority, the Pre 
 sident, to whom the Chevalier d'Argaiz's note has been commu 
 nicated, has instructed the undersigned to state, that the agency 
 of this government to obtain the release of Messrs. Ruiz and Mon 
 tes cannot be afforded in the manner requested by him. The laws 
 of the state of New York, of which the constitution and laws of 
 the United States and their treaties with foreign powers form a 
 part, afford to Messrs, Ruiz and Montes all the necessary means 
 to procure their release from imprisonment, and to obtain any in 
 demnity to which they maybe justly entitled, and therefore would 
 render unnecessary any agency on the part of this department for 
 those purposes," 
 
 5 
 
34 
 
 There is a complete answer to all these demands of the Spanish 
 legation. "The constitution and laws have 'secured the judicial 
 power against ALL interference of the Executive authority." 
 That is very true. The laws of the state of New York, of which 
 the constitution and laws of the United States and their treaties 
 with foreign powers form a part, afford to Messrs. Ruiz and Mon- 
 tes all the necessary means for the security of their rights, and 
 therefore " render unnecessary any agency on the part of" the 
 Executive. That is very correct. There is a perfect answer, 
 worthy of an American statesman But is that all ] No. The 
 Secretary finds, after all these disclaimers, one Executive power 
 yet in reserve, which may be put forth to take part against poor 
 Africans, and at least afford evidence of the national sympathy. 
 The Secretary says : 
 
 " But inasmuch as the imprisonment of those persons connects 
 itself with another occurrence which has been brought under the 
 President's consideration, in consequence of a correspondence be 
 tween the Spanish legation and this department, instructions (of 
 which a copy is inclosed) have been given to the Attorney of the 
 United States for the District of New York to put himself in com 
 munication with those gentlemen, to offer them his advice (and 
 his aid, if necessary) as to any measure which it may be pro- 
 per for them to adopt to procure their release, and such indemnity 
 as may be due to them, under our laws, for their arrest and deten 
 tion." 
 
 Because the case " connects itself with another occurrence." 
 What is all this 1 The independence of the judiciary is first 
 firmly and bravely sustained. It is a question of private rights 
 between parties, with which the executive has nothing lo do, and 
 the Government of the United States has no power to interpose. 
 And then the President instructs the District Attorney, the law 
 officer of the government, to "put himself in communication" 
 with one of the parties, to throw all the weight and influence of 
 the government on their side, in order to secure a favorable deci 
 sion for them in the Courts of the state of New York. May it 
 please your Honors, I will not here enter into an inquiry of the ef 
 fect of this interference of the Executive of the United States 
 with the Courts of a State, or the extent and operation of the 
 principle which would authorize such interference. I really da 
 not know, my imagination cannot present to me the compass of 
 
35 
 
 its effects on the rights of the people of the United States. I 
 again ask the attention of this honorable court to this subject. 
 The letter begins with a declaration of the independence of the 
 judiciary of the State of New York, the sufficiency of the laws 
 to secure justice and the incompetency of the Executive to inter- 
 fere $ and yet, because the case " connects itself" with another 
 case in which the Executive has considered itself entitled to act, 
 the whole influence of the Government is brought to bear upon 
 the judicial authorities of the State of New York. 
 
 I said the Secretary of State had never to this hour undertaken, 
 to contest any one of the actual demands of Mr. Calderon, as 
 preferred in his letter of 5th September. He had su ffered both 
 Mr. Calderon and his successor to remain under the impression 
 that if their demands were not complied with, for the kidnapping 
 of these people by the Executive, it was not for the want of a will, 
 to do it, or of a disposition to contest the claims put forth in so 
 extraordinary a manner upon our government. Let us now see 
 how Mr. Argaiz himself regarded the conduct of the Secretary. 
 On the 5th of November, he writes again to Mr. Forsyth, acknow 
 ledging the receipt of Mr. Forsyth's letter, inclosing the instruc 
 tions -of the Attorney of the United States for the District of New 
 York, " that he should offer to these persons his advice and as 
 sistance, if needed, with regard to the most proper means of ob 
 taining their liberty." He says : 
 
 " Although this answer did not entirely satisfy the desire ex 
 pressed by the undersigned in the note of October 22d, to which 
 he was impelled by the sense of his duty, and by the terms of ex 
 isting treaties, yet he received it with pleasure and with thanks ; 
 with pleasure, because he saw that the Secretary of State did 
 not refuse to admit the reasons which the undersigned had the 
 honor to state in that note ; and with thanks, because he saw that 
 the sentiments which had urged him to request with warmth a 
 prompt reply, had been kindly interpreted. The undersigned in 
 consequence, went immediately to New York, where he visited, 
 on the 29ih ultimo, the Attorney of the United States, with whom 
 he had a long conversation, which left him delighted with the af 
 fability and courtesy of Mr. Butler, although he did not have the 
 happiness to remain satisfied as to the principal matter, as that 
 officer of justice declared that he could find no other means of 
 obtaining the liberty of Ruiz (Montes being already free) than by 
 
36 
 
 waiting the determination of the court or courts, against the juris 
 diction of which the undersigned had already especially pro- 
 tested." 
 
 The Spanish ambassador was not satisfied with the letter, and 
 and yet he received it with pleasure, " because he saw that the 
 Secretary did not refuse to admit- his reasons." How is that ? 
 The Secretary of State took no measures to repel the improper 
 demand made, or to correct the erroneous idea cherished by the 
 Spanish legation ; and this neglect Mr. Argaiz construes as a vir 
 tual admission of his " reasons " Why should he not so construe 
 it 1 Here is also a renewal of the protest, which has uniformly 
 been maintained by the legation, against the right of any court in 
 this country to exercise jurisdiction in the case. And yet 
 this suit is carried on by the Executive, as in pursuance of a de 
 mand by the Spanish minister. Mr. Argaiz then refers to two 
 personal conferences which he had with the Secretary, and he is 
 well persuaded that what he had said, together with the indications 
 in his note of October 22, would have been sufficient to convince 
 " one so enlightened and discriminating as the Secretary, of the 
 justice of his claim ; that this persuasion has gained strength, 
 from the circumstance that the Secretary of State has made no 
 attempt in his answer to oppose those arguments, but has confined 
 himself to endeavoring to explain the course of civil causes in the 
 courts of this country, in order to show that the government of 
 the United States could not interfere in the manner which her 
 Catholic Majesty's representative requested; it becomes necessary 
 to advance farther arguments, at the risk of being importunate." 
 
 And a little farther on, after adverting to the various excuses 
 and palliations which seem to have been presented in these con 
 fidential conferences, for not seizing these negroes and sending 
 them to Cuba by the Executive power, in which he says " it is 
 allowed by the whole world" that " petitions or accusations of 
 slaves against their masters cannot be admitted in a court," he 
 concludes by asking 
 
 " As the incompetence of the courts of the United States, with 
 regard to this matter, is so clearly demonstrated, is there no 
 power in the Federal Government to declare it so, and to inter 
 pose its authority to put down the irregularity of these proceed 
 ings, which the court is not competent to perform 1 It seems im 
 possible that there should be no such power ; but unfortunately 
 there is none. 
 
37 
 
 "Her Catholic Majesty's envoy extraordinary and minister 
 plenipotentiary, nevertheless, seeing that his previous protest did 
 not produce the result which he expected, renews it now, declar 
 ing this government responsible for the consequences which may 
 grow out of this affair ; and he asks the Secretary of State whe 
 ther or not he possesses sufficient authority and force to carry 
 into fulfilment the treaty of 1795. If he has not, then there can 
 be no treaty binding on the other party." 
 
 He thinks it impossible there should not be a power in the Fe 
 deral Government to put down these proceedings of the courts, 
 but he admits that unfortunately there is no such power, and then 
 asks the Secretary of State if he cannot find a power, somewhere) 
 to take the matter out of the hands of the judiciary altogether. 
 And if not, he shall hold this Government responsible for the con 
 sequences, for if it has not power to fulfil the treaty, no treaty is 
 binding on either party. 
 
 On the 26th of November, the trial of the case having been 
 postponed by the District Court from November to January, he 
 writes again, that he is under the necessity of renewing his for 
 mer complaints. ij~ 
 
 " To the first complaint, made by his predecessor, on the 6th 
 September last, nothing more than an acknowledgment of its re 
 ceipt was thought necessary, which was made on the 16th of the 
 same month. In the answers which the Secretary was pleased to 
 give to the notes of the undersigned, of the 22d of October, and 
 the 5th of November last, that gentleman did not think proper 
 to combat the arguments advanced. Those which the undersigned 
 now proposes to present will be no less powerful, and he hopes 
 will be such that the Secretary will not be able to deny their 
 justice. 
 
 " The undersigned has the honor to ask in what law, act, or 
 statute, does the said court base its right to take cognizance of 
 the present case 1 There can be no doubt as to the reply : on no 
 law, act, or statute." 
 
 Here he denies again that the Court, before which the Secreta 
 ry of State had made a demand with the averment that it came 
 from the Spanish minister, has any power to take cognizance of 
 the case. He says there is no law, act, or statute for it, and then 
 he goes on : 
 
 " For, if any such 'existed, it is, or should be, anterior or poste- 
 
38 
 
 rior to the treaty of 1795. If anterior, it clearly became annulled, 
 because a treaty is one of the superior laws of the State, or the 
 treaty should never have been signed, or ratified, or sanctioned by 
 the legislative bodies. If posterior to the treaty, the legislative 
 bodies, in drawing it up, discussing it, and voting on it, must have 
 seen that it was at variance with a subsisting treaty, which was 
 already a law of the Union. All which serves to show that, in the 
 existing state of the laws, this affair cannot and should not be de 
 cided by the common law, but by the international law." 
 
 That is to say, the treaty stipulation has taken away the power 
 of the courts of the United States to exercise jurisdiction between 
 parties. Is that a doctrine to be heard by the Secretary of State 
 of the United States from a foreign ambassador without answer 
 ing it? The ambassador proceeds to urge that "if the General 
 Government of the Union had decided this matter of itself, guber- 
 nativamente" here is a word, used several times in this corres 
 pondence, that no American translator has been able to translate 
 into our language. It means, by the simple will or absolute fiat 
 of the Executive, as in the case of the lettres de cachet or a war 
 rant for the BASTILE that is what the Spaniard means by gu- 
 bernativamente, when he asks the Executive of the United States, 
 by his own^ia/, to seize these MEN, wrest them from the power 
 and protection of the courts, and send them beyond seas ! Is 
 there any such law at Constantinople ? Does the Celestial Em 
 pire allow a proceeding like this! Is the Khan of Tartary pos 
 sessed of a power competent to meet demands like these ? I 
 know not where on the globe we should look for any such authori 
 ty, unless it be with the Governor General of Cuba with respect 
 to negroes. 
 
 " If the General Government had proceeded gubernativamente" 
 it is not necessary now to consider what would have followed. 
 " But," says the Chevalier d'Argaiz, " very different, however, 
 have been the results ; for, in the first place the treaty of 1795 
 has not been executed, as the legation of her Catholic Majesty 
 has solicited ; and the public vengeance has not been satisfied." 
 
 "The public vengeance!" What public vengeance 1 The 
 vengeance of African slave-traders, despoiled of their prey and 
 thirsting for blood! The vengeance of the barracoons! This 
 "public vengeance" is not satisfied. Surely, this is very lamenta 
 ble. Surely, this is a complaint to be made' to the Secretary of 
 
39 
 
 State of this government. " For," says he, " be it recollected 
 that the legation of Spain does not demand the delivery of slaves, 
 but of assassins." 
 
 How is it possible to reconcile this declaration of the Span 
 ish minister with the libel of the District Attorney, entered by 
 order of the Secretary of State, setting forth what was said to be 
 the demand of the Spanish minister'? It is an explicit contra 
 diction. 
 
 The Constitution of the United States recognizes the slaves, 
 held within some of the States of the Union, only in their capa 
 city of 'persons persons held to labor or service in a State under 
 the laws thereof persons constituting elements of representation 
 in the popular branch of the National Legislature persons, the 
 migration or importation of whom should not be prohibited by 
 Congress prior to the year 1808. The Constitution no where re 
 cognizes them as property. The words slave and slavery are 
 studiously excluded from the Constitution. Circumlocutions are 
 the fig-leaves under which these parts of the body politic are de 
 cently concealed. Slaves, therefore, in the Constitution of the 
 United States are recognized only as persons, enjoying rights and 
 held to the performance of duties. 
 
 But, in all countries where men are held as slaves, when they 
 are charged ^with the commission of crimes, the right of their 
 owners to their persons is, and must necessarily be, suspended j 
 and when they are convicted of capital crimes, the right of the 
 owner is extinguished. Throughout the whole correspondence 
 between the Spanish ministers and our Department of State, con 
 cerning the surrender of these most unfortunate persons, this 
 broad distinction appears to have been entirely and astonishingly 
 overlooked, not only by the Spanish ministers, but by the Secre 
 tary of State and by the Attorney General. 
 
 Mr. Calderon demands that the President should keep these 
 persons all all adult males and children of both sexes included 
 in close custody, and convey them to Cuba to be tried for their 
 lives. Is it not palpable that if this demand had been complied 
 with, they could not have been restored to their pretended own. 
 ers, Ruiz and Monies, as merchandise of what nature soever ? 
 With what face, then, could the 9th article of the treaty with 
 Spain be alledged to support a demand for the safekeeping and 
 delivery of the captives, not as slaves, but as assassins not as 
 
40 
 
 merchandise, but as men as infant females, with flesh, and blood, 
 and nerves, and sinews, to be tortured, and with lives to be for 
 feited and consumed by fire, to appease the public vengeance of 
 the lawless slave-traders in Cuba 1 
 
 Mr. Forsyth, by a most unaccountable oversight of this distinc- 
 tidn between persons and things, misrepresents this demand of 
 Mr. Calderon. 
 
 He instructs the District Attorney, Mr. Holabird, (llth Sept., 
 1839, Doc. p. 39, 40,) that the Spanish minister had addressed 
 a communication to the Department of State, claiming the vessel, 
 cargo, AND BLACKS on board, as Spanish property, and demanding 
 its immediate release. 
 
 The District Attorney, on the 19th of September, files, accord 
 ingly, his libels, (Record, p. 13,) stating the demand of the Span 
 ish minister, not as it had really been made, but according to the 
 statement of it in his instructions from the Department of State ; 
 and he prays the Court that, if the claim of the Spanish minister 
 is well founded and conformable to treaty, the Court should make 
 such order for the disposal of the said vessel, c.argo, AND SLAVES, 
 as may best enable the United States, in all respects, to comply 
 with their treaty stipulations, and preserve the public faith invi 
 olate. 
 
 But if it should be made to appear that the person* aforesaid, 
 described as slaves, arelnegroes and persons of color, who have 
 been transported from Africa in violation of the laws of the Unit 
 ed States, and brought into these United States contrary to the 
 same laws, he claims that, in such case, the Court shall make such 
 further order as may enable the United States, if deemed expedi 
 ent, to remove such persons to the coast of Africa, to be delivered 
 there to such agent or agents as may be authorized to receive and 
 provide for them, pursuant to the laws of the United States; or 
 to make such other order as to the court should seem fit, right, 
 and proper in the premises. 
 
 Here were three alternatives prayed for 1st. That the vessel, 
 cargo, and blacks, assumed to be slaves, should be so disposed of 
 as to enable the United States to comply with their treaty stipu 
 lations, and preserve the public faith inviolate. It was stated that 
 this demand was made at the instance of the Spanish minister, 
 but that was true only of the vessel and cargo, but not of the per 
 sons. Of them, he had demanded, by necessary implication, that 
 
4.1 
 
 they should not be restored to their pretended owners, but kept 
 in close custody, and, in defiance of all judicial authority, con 
 veyed to'the Havana Governmentally, that is, by the arbitrary 
 mandate of the President of the United States, to satisfy public 
 vengeance. The Court could not have complied with this alter 
 native of restoring the negroes, as property, to their owners, but 
 by denying and defying the real demand of the Spanish minister, 
 that they should be sent to Cuba as criminals. 
 
 The v second alternative was, that the Court should enable the 
 United States to send the negroes home to Africa, if deemed expe 
 dient ; and to this the decree of the Court said, soitfait comme il 
 est desire be it as the District Attorney desires. Let the said 
 Africans, in the custody of the Marshal, be delivered to the Presi 
 dent of the United States by the Marshal of the District of Con 
 necticut, to be by him transported to Africa, in pursuance of the 
 law of Congress passed March 3, 1829, entitled " An act in addi 
 tion to the acts prohibiting the slave-trade." 
 
 Yet, from this sentence, claimed by the District Attorney, the 
 representative of the Executive Administration before the Court, 
 it is he himself that appeals. Should the Court susfain that ap 
 peal, what judgment could they possibly render 1 Should they 
 reverse the decision of the District and Circuit Courts, they would 
 indeed determine that these forty persons should not be delivered 
 to the President of the United States, to be sent home to Africa; 
 but what shall the Court decree to be done with them ? Not ? 
 surely, that they should he delivered up to their pretended own 
 ers, for against that the Spanish minister solemnly protests ! He 
 demands not even that they should be delivered up to himself ! 
 He demands that it should be declared, that no tribunal in 
 the United States has the right even to institute proceedings 
 against them. Be declared by whom ? He demands of the Ex 
 ecutive Administration (will the Court please to consider what 
 the purport of this demand isl) that the President of the Unit 
 ed States should issue a proclamation, that no tribunal of the 
 United States has the right to institute proceedings against the 
 subjects of Spain for crimes committed on board a Spanish vessel, 
 and in the waters of the Spanish territory. 
 
 When this demand was made, the Africans of the Amistad were 
 in the custody of a judicial tribunal of the United States, upon 
 6 
 
proceedings instituted against them as criminals charged with pi. 
 racy and murder. They were also claimed by two Spaniards as 
 merchandise, their property ; and the faith of a treaty was solemnly 
 invoked to sustain the claim that this merchandise, rescued out of 
 the hands of pirates or robbers, (that is to say, out of the hands 
 of itself,) should be taken care of by the officers of the port into 
 which they had been brought, and restored entire to them Ruiz 
 and Monies as soon as due and sufficient proof should be made 
 concerning the property thereof. 
 
 Now, if no tribunal in the United States had the right to insti 
 tute proceedings against the subjects of Spain for crimes commit 
 ted on board a Spanish vessel and in the waters of the Spanish 
 territory, how could the Court know that these same Spanish sub 
 jects were, at the same time, the merchandise rescued out of the 
 hands of pirates and robbers and the pirates or robbers out of 
 whose hands the merchandise was rescued 1 How could the 
 Court know that they were subjects of Spain that they were pi 
 rates or robbers or that they were merchandise if the Court 
 had no right to institute proceedings against them 1 
 
 The very phraseology of the 9th article of the treaty with 
 Spain proves, that it was riot and could not be intended to include 
 persons under the denomination of merchandise, of what nature 
 soever, for it provides that the merchandise shall be delivered to 
 the custody of the officers of the port, in order to be taken care 
 o/and restored entire to the true proprietor. Now, this provision, 
 that the merchandise shall be restored entire, is absurd if applied 
 to human beings, and the use of the word conclusively proves 
 that the thought and intention of the parties could not be con* 
 strued to extend to human beings. A stipulation to restore human 
 beings entire might suit two nations of cannibals, but would be 
 absurd, and worse than absurd, between civilized and Christian 
 nations. Again, the article provides that the rescued merchandise 
 shall be delivered to the custody of the officers of the port into 
 which it is brought, in order to be taken care of ; but, by what 
 Constitution or law of the United States, or of Connecticut, could 
 the officers of the port of New London receive into their custo 
 dy, and take care of, the Africans of the Amistad \ 
 
 The demand of the Spanish minister, Calderon, was, that the 
 President of the United States should first turn man-robber ; res- 
 cue from the custody of the Court, to which they had been com' 
 
mitted, those forty odd Africans, males and females, adults and 
 children ; next turn jailer, and keep them in his close custody, to 
 prevent their evasion ; and lastly, turn catchpoll and convey them 
 to the Havana, to appease the public vengeance of the African 
 slave-traders of the barracoons. 
 
 Is it possible to speak of this demand in language of decency 
 and moderation ? Is there a law of Habeas Corpus in the land ? 
 Has the expunging process of black lines passed upon these two 
 Declarations of Independence in their gilded frames ? Has the 
 4th of July, '76, become a day of ignominy and reproach ? Is 
 there a member of this Honorable Court of age to remember the 
 indignation raised against a former President of the United States 
 for causing to be delivered up, according to express treaty stipu 
 lation, by regular judicial process, a British sailor, for murder on 
 board of a British frigate on the high seas ? At least, all your 
 Honors r.emember the case of the Bambers 1 You all remember 
 your own recent decision in the case of Dr. Holmes ? And is it 
 for this Court to sanction such monstrous usurpation and Execu 
 tive tyranny as this at the demand of a Spanish minister 1 And 
 can you hear, with judicial calmness and composure, this demand 
 of despotism, countenanced and supported by all the Executive 
 authorities of the United States, though not yet daring to carry 
 it into execution I 
 
 The third alternative prayed for in the name and behalf of the 
 United States in the libel of the 19th of September, 1839, is, that the 
 court should make such other order in the premises as it should 
 think fit, right, and proper. 
 
 To this expedient it was necessary for the court to resort. The 
 court did not know it could not know that the demand of the 
 Spanish Minister, Calderon, was not only widely different from that 
 which the libel of the District Attorney represented it to be, but 
 absolutely incompatible with it. The court took it for granted that 
 the statement in the libels, at least so far as concerned the demand of 
 the Spanish Minister, was true and so far as respected the only 
 Ladino on board the Amistad, the boy Antonio, did accede to the 
 supposed demand of the Minister did actually admit the treaty 
 stipulation as applicable to him and did decree that he should be 
 restored to the legal representatives of his deceased master. The 
 judge of the District Court relieved Antonio from his right of ap 
 peal from that decision by stating that Antonio himself desired to 
 
44 
 
 be restore.d to his widowed mistress. But as the whole decree 
 was the result of a deception practised upon the court, and as in 
 that part of it relating to Antonio, are involved principles of the 
 deepest interest to human freedom, and to the liberties of my 
 country, I will only express my most earnest hope, with profound 
 respect for the court, that that portion of its decision will never be 
 adduced as authority for the surrender of any other individual 
 situated as Antonio was on that trial* 
 
 And here I must avail myself of the occasion to state my objec 
 tions to the admission of the case of the Antelope as an authorita 
 tive precedent in this or any other court of the United States I 
 had almost said for any thing, certainly for the right of the court 
 itself to deliver up to slavery any human individual at the demand 
 of any diplomatic or consular agent of any foreign power. And 
 that I may be enabled to set forth at large, my reasons for resist 
 ing the application of that case as precedent or authority for the 
 settlement of any principle now under the consideration of the 
 Court, I must ask the permission of the Court to review the case of 
 the Antelope itself, as it appears on the face of the Reports. 
 
 [See the feview of the case of the Antelope, at the close of the 
 argument.] 
 
 And this declaration of the Spanish minister not only contradicts 
 it, but shows that it was impossible any such demand should have 
 been made. "For, let it be remembered," he says, "that the 
 Spanish legation demands not slaves but assassins." No despot- 
 ism could comply with both demands, had they been made, but the 
 Spanish Minister explicitly declares that only one demand was 
 made by the legation, and that not the one affirmed by the Secreta 
 ry of State not property but assassins not for the benefit of in 
 dividuals, but to satisfy li public vengeance." There is something 
 follows in the letter about " fanaticism," which I will hot read to 
 the .Court, for reasons that will be obvious.* Indeed, I do not know 
 
 * It is proper to append this part af the letter, that the allusion may be under, 
 stood by the reader, as it doubtless was by the Court. Reporter. 
 
 " Very different, however, have been the results ; for, in the first place the trea 
 ty of 1795 has not been executed, as the legation of her Catholic Majesty has so 
 licited ; and the public vengeance has not been satisfied ; for be it recollected that 
 the legation of Spain does not demand the delivery of slaves, but of assassins. 
 Secondly, great injury has been done to the owners; not the least being the im- 
 prisonment which Don Jose Ruiz is now undergoing, notwithstanding the com- 
 
46 
 
 as I understand it, and it is possible that I have indulged, or may 
 indulge in what, in certain dialects, may be called " fanaticism," 
 myself. The Chevalier proceeds to reason : 
 
 " Thus it appears that a court of one of the States of the con 
 federacy has assumed the direction of an affair over which it has 
 no jurisdiction ; that there can be no law, either anterior or pos 
 terior to the treaty, upon which a legal sentence can be based ; 
 that this court, by the repeated delays which it orders, contributes 
 to delay the satisfaction demanded by public justice j and that, in 
 consequence, the affair should only be determined by reference to 
 international right, and, therefore, by the exercise of the power of 
 the Government, (gubernativamente ;) that, for its determination, 
 the treaty exists to which Spain appeals ; that, from the delay on 
 this determination have proceeded injuries requiring indemnifica 
 tion, to demand which the undersigned reserves his right for a fu 
 ture occasion. The undersigned may, without indiscretion, 
 declare that this must be the opinion of the cabinet, which, pos 
 sessing already the necessary and even indispensable powers, may 
 immediately act (gubernativamente) in this matter, in virtue of 
 the actual state of the law, and without awaiting the decision of 
 any court. Not to do so may give rise to very complicated ex 
 planations with regard to reciprocity in the execution and fulfil 
 ment of treaties." 
 
 Here it is. " Gubernativamente" again 5 that is the idea which 
 was in the mind of the Spanish minister all the while, gubernativa 
 mente. That is what he was insisting on, that was the demand 
 which the Secretary of State never repelled as he ought, by telling 
 Mj. Argaiz that it was not only inadmissible under our form of 
 government, but would be offensive if repeated. But where will 
 your Honors find any thing like a demand for property, under the 
 treaty, and by the decision of a court of the United States? He 
 says, if the Executive does not at once act gubernativamente, and 
 take the case out of the judiciary, and send these people to Cuba, it 
 " may give rise to complicated explanations with regard to recip- 
 
 plaints made on that subject, which, if not entirely disregarded, have at least not 
 produced the favorable results which might have been expected ; and the dignity 
 of the Spanish nation has thus been offended. With respect to which injuries, the 
 undersigned will, on a proper occasion, use his right; although no indemnification 
 can fully recompense for the evils, physical and moral, which the persecutions and 
 vexations occasioned by fanaticism may cause to an honorable man." 
 
46 
 
 rocity in the execution and fulfilment of treaties." Is that lan 
 guage for a foreign minister to use to the American Secretary of 
 State, and not to be answered 1 He then says : 
 
 " The undersigned flatters himself with the hope that his Excel 
 lency the President will take into his high consideration this com 
 munication, to which the undersigned hopes for a speedy answer, 
 as a new proof of the scrupulousness and respect with which this 
 nation fulfils the treaties existing with other nations. If, contrary 
 to this hope, the decision should not be such as the undersigned 
 asks, he can only declare the General Government of the Union re 
 sponsible for all and every consequence which the delay may pro 
 duce." 
 
 There is the language used by the representative of her Catho 
 lic Majesty to the Secretary of State of the United States, and to 
 which the Secretary never thought it necessary to make a suitable 
 reply. There is another correspondence published among the doc 
 uments of the present session of Congress, connected too with this 
 very case, which shows that the Secretary knows how to be very 
 sensitive with regard to any thing that looks like foreign interfer 
 ence with the action of our courts and government. It is in his 
 answer to Mr. Fox, the British ambassador, who addressed a letter 
 to Mr. Forsyth, January 20th, 1841, say ing he had been instructed 
 to represent to the President that the attention of his government 
 " has been seriously directed to the case" of these Africans, and 
 in consequence of the treaty between Great Britain and Spain, in 
 which the former paid a valuable consideration for the abandon 
 ment of the trade, it is " moved to take a special and peculiar in 
 terest in the fate of these unfortunate Africans." And he says : 
 
 " Now the unfortunate Africans, whose case is the subject of 
 the present representation, have been thrown by accidental cir 
 cumstances into the hands of the authorities of the United States ; 
 and it may probably depend upon the action of the United States 
 Government, whether these persons shall recover the freedom to 
 which they are entitled, or whether they shall be reduced to 
 slavery, in violation of the known laws and contracts publicly pass 
 ed, prohibiting the continuance of the African slave trade by 
 Spanish subjects. 
 
 " It is under these circumstances that Her Majesty's Govern 
 ment anxiously hope that the President of the United States will 
 find himself empowered to take such measures in behalf of the 
 
47 
 
 aforesaid Africans as shall secure to them the possession of their 
 liberty, to which, without doubt, they are by law entitled." 
 
 The Secretary of State, in his reply, consents to receive the 
 communication, " as an evidence of the benevolence of her Majes 
 ty's Government, under which aspect alone" he says, "it could be 
 entertained by the Government of the United States." What a 
 different tone is here ! Mr. Fox merely referred to the relations 
 of his own government with that of Spain, and to the 10th article 
 of the treaty of Ghent, between Great Britain and the United 
 States, in which both nations bound themselves " to use their 
 best endeavors for the entire abolition of the African slave trade." 
 His letter .was courteously worded throughout. It casts no impu 
 tations upon any branch of our government, it pronounces no part 
 of it incompetent to its functions, it asks no unconstitutional and 
 despotic interference of the Executive with the judiciary guberna- 
 tivamente, but simply announces the interest his government feels 
 in the case, and its "anxious hope that the President of the 
 United States will find himself empowered to take such measures 
 in behalf of the aforesaid Africans as shall secure to them their 
 liberty, to which," he says, " without doubt, they are by law en 
 titled." To this the Secretary of State replies : 
 
 " Viewing this communication as an evidence of the benevo 
 lence of her Majesty's Government under which aspect alone 
 it could be entertained by the Government of the United States 
 I proceed, by direction of the President, to make, in reply, a few 
 observations suggested by the topics of your letter. The narra 
 tive presented therein, of the circumstances which brought these 
 negroes to our shores, is satisfactory evidence that her Majesty's 
 Government is aware that their introduction did not proceed from 
 the wishes or direction of the Government of the United States. 
 A formal demand having been made by the Spanish minister for 
 the delivery of the vessel and property, including the negroes on 
 board, the grounds upon which it is based have become the sub 
 ject of investigation before the judicial tribunals of the country, 
 which have not yet pronounced their final decision thereupon. 
 You must be aware, sir, that the Executive has neither the power nor 
 the disposition to control the proceedings of the legal tribunals when 
 acting within their own appropriate jurisdiction" 
 
 How sensitive the Secretary is now ! How quick to perceive 
 an impropriety ! How alive to the honor of the country much 
 
48 
 
 more so, indeed, than the case required, flow different his course 
 from that pursued toward the Spanish minister, who had heen 
 -from the beginning to the end pressing upon our government de 
 mands the most inadmissible, the most unexampled, the most 
 offensive, and yet received from the Secretary no answer, but 
 either a prompt compliance with his requirements, or a plain de 
 monstration of r-egret that compliance was impracticable. Not 
 one attempt do we find by the Secretary to vindicate the honor of 
 the country, or to press the Spanish minister to bring forward his 
 warrant for such unexampled, such humiliating demands. Neither 
 does he intimate in the case of the Spanish claim, that it is re 
 ceived on the ground of " benevolence." Indeed he could not 
 very well offer that as an apology. Benevolence ! The burning 
 of these forty Africans at the stake, as the result of a compliance 
 by our Executive with the Spanish demand, would hardly tend to 
 exhibit or inspire " benevolence." No, it was for vengeance 
 that they were demanded, admitted to be so in this very letter. 
 
 In the same letter the Secretary of State does not undertake to 
 controvert the principles set forth by Mr. Calderon, nor the argu 
 ments urged by Mr. Argaiz ; but repeats that they had been sub 
 mitted to the President for consideration. And that is all 'the 
 answer ever given to the Spanish legation. He then refers to va 
 rious personal conversations with the minister of Spain. 
 
 " it was hoped that, in the various conversations which have 
 since taken place with the Chevalier d'Argaiz at thi^ depart 
 ment, on the same subject, he would have discovered additional 
 evidence of the desire of the United States Government to do jus 
 tice to the demand and representation addressed to it in the name 
 of that of Spain, as fully and as promptly as the peculiar character 
 of the claim admitted. From the repeated communications of 
 the Chevalier d'Argaiz, pressing for the disposal of the question j 
 from his reiterated offer of suggestions a to the course by which 
 he deems it incumbent upon this Government to arrive at a 
 final decision ; and from the arguments in support of those sug. 
 gestions, which the undersigned does not perceive the utility of com, 
 bating at the present stage of the transaction/' 
 
 The Secretary makes no pretension to contest the claims of 
 Spain not even a suggestion of the idea that these claims are 
 inadmissible, or that, if pressed, they would be offensive. In 
 these conversations, many things may have been said which per- 
 
49 
 
 haps it would not have been deemed compatible with the public 
 interest to make public. I shall justify this intimation before I 
 am through with this remarkable correspondence. But it is evi 
 dent there was no resistance of the < *claims in*question*as to their 
 justice, no examination of their principles. The Secretary says 
 he does not perceive the utility of combating any of these de 
 mands or allegations, and he refers to these private conversations 
 as evidence that the Government is perfectly disposed to do all 
 that is demanded. He continues by saying 
 
 " The Government of the United States cannot but perceive 
 with regret that the Chevalier d'Argaiz has not formed an ac 
 curate conception of the true character of the question, nor of the 
 rules by which, under the constitutional institutions of the coun 
 try, the examination of it must be conducted ; nor a correct ap 
 preciation of the friendly disposition toward Her Catholic Majes 
 ty's Government, with which that examination was so promptly 
 entered upon. In connection with one of the points in the Chev 
 alier d'Argaiz's last note, the undersigned will assure him, that 
 whatever be, in the end, the disposal of the question, it will be in 
 consequence of a decision emanating from no other source than 
 the Government of the United States ; and that, if the agency of 
 the judicial authority shall have been employed in conducting the 
 investigation of the case, it is because the judiciary is, by the or 
 ganic law of the land, a portion, though an independent one, of 
 that Government." , 
 
 That is to say, so it is, and we can't help it, the judiciary is in 
 dependent, it must have its course, and we cannot help it. He 
 proceeds: 
 
 " As to the delay which has already attended, and still may at 
 tend, a final decision, and which the Chevalier d'Argaiz .considers 
 as a legitimate subject of complaint, it arises from causes which 
 the undersigned believes that it would serve no useful purpose to 
 discuss at this time, farther than to say that they are beyond the 
 control of this department, and that it is not apprehended that 
 they will affect the course which the Government of the United 
 Slates may think it fit ultimately to adopt." 
 
 The Spanish minister is here given to understand, in his ear, 
 
 that care had been taken to prevent the Africans from being placed 
 
 beyond the control of the Executive, and therefore he need be 
 
 under no apprehension that the decision of the courts, whatever 
 
 7 
 
50 
 
 it may be, " will affect the course which the Government of the 
 United States may think it fit ultimately to adopt." What other 
 construction can possibly be given to this paragraph?. If any 
 other is possible from the words there are facts in the case which 
 prove that this was what was intended. The Secretary proceeds 
 with his explanations and apologies. 
 
 41 The undersigned indulges the hope that, upon a review of the 
 circumstances of the case, and the questions it involves, the Chev 
 alier d'Argaiz will agree with him in thinking that the delay 
 which has already occurred is not more than commensurate with 
 the importance of those questions ; that such delay is not uncom 
 mon in the proceedings and deliberations of governments desi 
 rous of taking equal justice as the guide of their actions; and 
 that the caution which it has been found necessary to observe in 
 the instance under consideration, is yet far from having occasion 
 ed such procrastination as it has been the lot of the United States 
 frequently to encounter in their intercourse with the Government 
 of Spain." 
 
 " With regard to the imprisonment of Don Jose Ruiz, it is again 
 the misfortune of this Government to have been entirely misap. 
 prehended by the Chevalier d'Argaiz, in the agency it has had in 
 this, an entirely private concern of a Spanish subject. It was no 
 more the intention of this department, in what has already been 
 done, to draw the Chevalier d'Argaiz into a polemical discussion 
 with the Attorney of the United States for the district of New 
 York, than to supply Don Jose Ruiz, gratis, with counsel in the 
 suit in which he had been made a party. The offer made to that 
 person of the advice and assistance of the District Attorney, was a 
 favor an entirely gratuitous one since it was not the province of 
 the United States to interfere in a private litigation between sub 
 jects of a foreign state, for which Mr. Ruiz is indebted to the de 
 sire of this government to treat with due respect the application 
 made in his behalf in the name of her Catholic Majesty, and not to 
 any right he ever had to be protected against alledged demands of 
 individuals against him or his property." 
 
 Here, then, it is avowed that the Executive government of this 
 nation had interposed in a suit between two parties, by extend 
 ing a favor entirely gratuitous to one of the parties, who, it is at 
 the same time admitted, had no claim whatever to this gratuitous 
 aid. And then comes the exhibition which I have already read, of 
 
51 
 
 the national sympathy, in which all the authorities of the country 
 are alledged to have participated, and the assumption, under which 
 all the proceedings have been carried on, that there was but one 
 party aggrieved in the case, and that party was the Spanish slave- 
 traders. 
 
 On the 25th of December the Chevalier d'Argaiz addressed a 
 long letter to the Secretary of State, in which he acknowledges 
 the receipt of the last letter, to which " it would be superfluous" 
 the word is ocioso, idle to reply, inasmuch as the Secretary 
 of State does not seem to have considered it requisite in the present 
 situation of the affair, to combat the. arguments adduced by the wider- 
 signed. The delicacy of the undersigned does not, however, al 
 low him to pass over (desoir) certain insinuations (remarks) con 
 tained in the said note ; and it will, perhaps, be difficult for him 
 to avoid adducing some new argument in support of his de 
 mands." 
 
 The Secretary had never met these claims and arguments, as it 
 was his duty to do, and the Spanish minister is continually re 
 minding him that he does not answer his arguments. He then 
 refers him to his own course, and says, u The undersigned would 
 not have troubled the Government of the Union with his urgent 
 demand, if the two Spaniards (who, as the Secretary of State, in 
 his note of the 12th, says, 'were found in this distressing and per 
 ilous stuation by officers of the United States, who, moved by sym 
 pathetic feelings, which subsequently became national,') had not 
 been the victims of an intrigue, as accurately shown by Mr. For- 
 syth, in the conference which he had with the undersigned on the 
 21st of October last." 
 
 He here refers to a private conference in which the Secretary 
 of State had accurately shown that the two Spaniards in New 
 York were the " victims of an intrigue." The Secretary of State of 
 the United States, then, had confidentially and officially informed 
 the Spanish minister that the two Spaniards, in being arrested at 
 the suit of some of these Africans, were the " victims of an in 
 trigue." What the Secretary meant by ' victims of an intrigue,"is 
 not for me to say. These Spaniards had been sued in the courts 
 of the state of New York by some of my clients, for alledged 
 wrongs done to them on the high seas for cruelty, in fact, so 
 dreadful, that many of their number had actually perished under 
 the treatment. These suits were commenced by lawyers of New 
 
52 
 
 York men of character in their profession. Possibly they ad 
 vised with a few other individuals fanatics, perhaps, I must call 
 them, according to the general application of language, but if I 
 were to speak my own language in my own estimate of their char 
 acter, so far as concerns this case, and confining my remarks ex 
 clusively to this present case, I should pronounce them the 
 FRIENDS OF HUMAN NATURE men who were unable to 
 see these, their fellow men, in the condition of these unfortunate 
 Africans, seized, imprisoned, helpless, friendless, without language 
 to complain, without knowledge to understand their situation or 
 the means of deliverance I say they could not see human beings 
 in this condition and not undertake to save them from slavery and 
 death, if it was in their power not by a violation of the laws, but 
 by securing the execution of the laws in their favor. These are 
 the men whom the American Secretary of State arraigns in a 
 confidential conversation with the minister of Spain, as the insti 
 gators of " an intrigue" of which he holds these disappointed 
 slave-holders to be the unfortunate victims. The Chevalier goes 
 on : 
 
 u The Secretary of State, however, says that c he cannot but per- 
 ceive with regret that the Chevalier d'Argaiz has not formed an 
 accurate conception of the true character of the question, nor of 
 the rules by which, under the constitutional institutions of this 
 country, the examination of it must be conducted.' Possibly the 
 undersigned may not have formed such an accurate conception 
 of this affair, since it has been carried within the circle of le 
 gal subtleties, as he has not pursued the profession of the law ; 
 but he is well persuaded that, if the crew of the Amistad had been 
 composed of white men, the court, or the corporation to which 
 the Government of the Union might have submitted the examina 
 tion of the question, would have observed the rules by which it 
 should be conducted under the constitutional institutions of the 
 country, and would have limited itself to the ascertainment of the 
 facts of the murders committed on the 30th of June ; and the un 
 dersigned does not comprehend the privilege enjoyed by negroes, 
 in favor of whom an interminable suit is commenced, in which 
 everything is deposed by every person who pleases ; and, for that 
 object, an English doctor, who accuses the Spanish government 
 of not complying with its treaties, and calumniates the Captain 
 General of the island of Cuba, by charging him with bribery." 
 
53 
 
 Here it is made the subject of complaint from a foreign ambas 
 sador to the Executive Government of the United States, that in 
 a court of the United States, in a trial for the life and liberty of 
 forty human beings, the testimony of " an English doctor" was re 
 ceived. And this complaint also was received without a reply. 
 The " English doctor," thus spoken of, was Doctor Madden, a 
 man of letters, and in the official employ of the British Govern 
 ment, in a post of much importance and responsibility, as the su- 
 perintendant of liberated Africans at Havana. His testimony 
 was highly important in the case and was admitted in the court 
 below, and now forms a part of the record now before your Honors. 
 He does not use the word bribery in reference to the Governor 
 General of Cuba. 
 
 DEATH OF JUDGE BARBOUR THE PROCEEDINGS OF THE COURT SUS 
 PENDED. 
 
 Washington, Feb. 25, 1841. 
 
 The proceedings of the Court in this solemn case have been 
 interrupted by the solemn voice of death. One of the learned 
 and honorable judges of the Court, who sat yesterday in his 
 place, listening with profound and patient attention to the argu 
 ment of a counsellor many years older than himself, reasoning 
 eloquently in behalf of justice on earth, has been summoned to 
 his own dread account, at the bar of Eternal Justice above. Judge 
 Barbour, of Virginia, the seventh in -rank on the bench, died last 
 night in his bed in his sleep, it is probable, without a groan or a 
 struggle. The servant at his lodgings went at the usual hour this 
 morning to the rooms of the different Judges, to call them to 
 breakfast. As the Chief Justice was passing the door of Judge 
 Barbour's room, the man said to him, " Chief Justice, will you 
 please to come here, sir I think Judge Barbour is dead." Judge 
 Taney went to the bed, and there saw his associate lying on his 
 side, as if in a gentle sleep, but dead and cold, with the exception 
 of a slight remaining warmth at the chest. Not a muscle was 
 distorted, nor were the bed-clothes in the slightest degree disturb 
 ed, so that it is probable his heart ceased to beat in an instant, 
 while he was asleep ! 
 
 At the usual hour for opening the Court this morning, none of 
 the Judges were seen in the court-room, which was already filled 
 with persons come to hear the continuation of Mr. .\dams' speech. 
 
5* 
 
 At length the Judges came in together, and their countenances 
 looked pale, distressed, and sorrowful. As soon as they had taken 
 their seats, the Crier opened the Court in the usual form, and the 
 Chief Justice addressed the gentlemen of the bar " Gentlemen 
 a painful event has occurred Judge Barbour died suddenly last 
 night and the Court is therefore adjourned until Monday." 
 
 The Crier then made proclamation to that effect, the Judges all 
 rose, and retired again to their private apartment, and the assem 
 bly withdiew. 
 
 I did not expect an announcement of so overwhelming a Pro 
 vidence in a manner so severely simple and subdued, but it struck 
 me as eminently appropriate for the Supreme Court of this nation. 
 It was in keeping with the strictest propriety arid suitableness. It 
 was sublime. 
 
 RESUMPTION OF THE TRIAL. 
 
 Washington, March 1, 1841. 
 
 On the re-opening of the Court, the Attorney General of the Unit 
 ed States, H. D. Gilpin, Esq. presented a series of appropriate re 
 solutions in reference to the decease of Judge Barbour, which 
 had been adopted on Friday, at a meeting of the Bar of officers of 
 the court, and which he moved to have entered on the records of 
 the court. The Chief Justice responded in a short address, and 
 concluded with ordering the resolutions to be entered on the re 
 cords. Mr. Adams then resumed his argument, as follows : 
 May it please your Honors, 
 
 The melancholy event which has occurred since the argument 
 of this case was begun, and which has suspended for a time the 
 operations of the Court itself, and which I ask permission to say 
 that I give my cordial, and painful concurrence in the sentiments 
 of the Bar of this Court has imposed on me the necessity of 
 re-stating the basis and aim of the argument which I am submit 
 ting to the Court, in behalf of the large number of individuals, 
 who are my unfortunate clients. 
 
 I said that my confidence in a favorable result to this trial rest 
 ed mainly on the ground that I was now speaking before a Court 
 of JUSTICE. And in moving the dismissal of the appeal taken 
 on behalf of the United States, it became my duty, and was my 
 object to show, by an investigation of all the correspondence of 
 the Executive in regard to the case, that JUSTICE had not 
 
55 
 
 been the motive of its proceedings, but that they had been prompt 
 ed by sympathy with one of the two parties and against the other. 
 In support of this, I must scrutinize, with the utmost severity ) 
 every part of the proceedings of the Executive Government. 
 And in doing it, I think it proper for me to repeat, that in speak 
 ing of the impulse of sympathies, under which the government 
 acted, I do not wish to be understood to speak of that sympa 
 thy as being blameable in itself, or as inducing me to feel un 
 friendly sentiments towards the Head of the Government, or the 
 Secretary of State, or any of the Cabinet. I feel no unkind sen 
 timents towards any of these gentlemen. With all of them, I am, 
 in the private relations of life, on terms of intercourse, of the most 
 friendly character. As to our political differences, let them pass 
 for what they are worth, here they are nothing. At the moment 
 of the expiration of this administration, I feel extreme reluctance 
 at the duty of bringing its conduct before the court in this man 
 ner, as affecting the claims of my clients to JUSTICE. My learn 
 ed friend, the Attorney General, knows that I am not voluntary 
 in this work. I here descended to personal solicitation with the 
 Executive, that by the withdrawal of the appeal, I might be spar 
 ed the necessity of appearing in this cause. I have been of the 
 opinion that the case of my clients was so clear, so just, so right 
 eous, that the Executive would do well to cease its prosecution, 
 and leave the matter as it was decided by the District Court, and 
 allow the appeal to be dismissed. But I did not succeed, and now 
 I cannot do justice to my clients, whose lives and liberties depend 
 on the decision of this Court^ however painful it may be, to my 
 self or others. 
 
 In my examination of the first proceedings of the Executive in 
 this case, I did scrutinize and analyze, most minutely and parti 
 cularly, the four demands first made upon our government by the 
 late Spanish minister, Mr. Calderon, in his letter to the Secretary 
 of State of Sept. 5, 1839. I tested the principles there laid down, 
 both by the laws of nations and by the treaties between the two 
 nations to which he had appealed. And I showed that every one 
 of these demands was inadmissible, and that every principle of 
 law and every article of the treaty, he had referred to, was utter 
 ly inapplicable. At the close of my argument the other day, I 
 was commenting upon the complaint of the present minister, the 
 Chevelier d'Argaiz, addressed to the Secretary of State on the 
 
56 
 
 25th of December, 1839, in relation to the injustice he alledges to 
 have been done to the two Spanish subjects, Ruiz and Montes, by 
 their arrest and imprisonment in New York, at the suit of some of 
 the Africans. He says he " does not comprehend the privilege 
 enjoyed by negroes, in favor of whom an interminable suit is com 
 menced, in which everything is deposed by every person who 
 pleases ; and, for that object, an English doctor who accuses the 
 Spanish Government of not complying with its treaties, and calum 
 niates the Captain General of the island of Cuba, by charging him 
 with bribery." 
 
 This English Doctor is Dr. Madden, whose testimony is given 
 in the record. He certainly does not charge the Captain General 
 with bribery, although he says that both he and the other authori 
 ties of Cuba are in the habit of winking or conniving at the slave- 
 trade. That this is the actual state of affairs, I submit to the 
 Court, is a matter of history. And I call the attention of the C ourt 
 to this fact, as one of the most important, points of this case. It 
 is universally known that the trade is actually carried on, contrary 
 to the laws of Spain, but by the general connivance of the Gov 
 ernor General and all the authorities and the people of the island. 
 The case of this very vessel, the visit of Ruiz and Montes to the 
 barracoon in which these people were confined, the vessel in which 
 they were brought from Africa, are all matters of history. I have 
 a document which was communicated by the British government 
 to the Parliament, which narrates the whole transaction. Mr. A. 
 here read from the Parliamentary documents, a letter from Mr. 
 Jerningham, the British Minister at Madrid, to the Spanish Secre 
 tary of State, dated January 5th, 1840, describing the voyage of 
 the Tecora from Africa, the purchase of these Africans who were 
 brought in her, with the subsequent occurrences, and urging the 
 Spanish Government to take measures both for their liberation, 
 and to enforce the laws of Spain against Ruiz and Montes. 
 
 He says " I have consequently been instructed by my govern 
 ment to call upon the government of her Catholic Majesty to 
 issue, with as little delay as possible, strict orders to the authori 
 ties of Cuba, that, if the request of the Spanish minister at Wash 
 ington be complied with, these negroes may be put in possession 
 of the liberty of which they were deprived, and to the recovery of 
 which they have an undeniable title. 
 
 "I am further directed to express the just expectations of Her 
 
57 
 
 Majesty's government that the Government of her Catholic Ma 
 jesty will cause the laws against the slave-trade to be enforced 
 against Messrs. Jose Ruiz and Pedro Montes, who purchased these 
 newly imported negroes, and against all such other Spanish sub 
 jects as have been concerned in this nefarious transaction." 
 
 These facts, said Mr. A., must be well known to the Spanish 
 minister. If he complains of injustice in the charge of general 
 connivance made by Dr. Madden, why has he not undertaken to 
 prove that it is a calumny 1 Not the slightest attempt has been 
 made to bring forward any evidence on this point, for the very 
 plain reason that there could be none. The fact of the slave trade 
 is too notorious to be questioned. I will read, said he, from ano^ 
 ther high authority, a book filled with valuable and authentic in- 
 formation on the subject of the slave trade, written by one of the 
 most distinguished philanthropists of Great Britain, Sir Thomas 
 Fowell Buxton. Mr. A. then read as follows : 
 
 " It is scarcely practicable to ascertain the number of slaves im 
 ported into Cuba : it can only be a calculation on, at best, doubt 
 ful data. We are continually told by the Commissioners, that 
 difficulties are thrown in the way of obtaining correct informa 
 tion in regard to the slave trade in that island. Everything that 
 artifice, violence, intimidation, popular countenance, and official 
 connivance can do, is done, to conceal the extent of the traffic. 
 Our ambassador, Mr. Villiers, April, 1837, says, ' That a privilege 
 (that of entering the harbor after dark) denied to all other vessels, 
 is granted to the slave-trader ; and, in short, that with the servants 
 of the Government, the misconduct of the persons concerned in 
 this trade finds favor and protection. The crews of captured ves. 
 sels are permitted to purchase their liberation ; and it would seem 
 that the persons concerned in this trade have resolved upon set 
 ting the government of the mother country^at defiance.' Almost 
 the only specific fact which I can collect from the reports of the 
 Commissioners, is the statement ' that 1855 presents a number of 
 slave vessels (arriving at the Havana) by which there must have 
 been landed, at the very least, 15,000 negroes.' But in an official 
 letter, dated 28th May, 1836, there is the following remarkable 
 passage : ' I wish I could add, that this list contains even one- 
 fourth of the number of those which have entered after having 
 landed cargoes, or sailed after having refitted in this harbor/ This 
 would give an amount of 60,000 for the Havana alone ; but is Ha- 
 8 
 
58 
 
 vana the only port in Cuba in which negroes are landed? The 
 reverse is notoriously true. The Commissioner says, ' I hare 
 every reason to believe that several of the other ports of Cuba, 
 more particularly the distant city of St. Jago de Cuba, carry on 
 the traffic to a considerable extent.' Indeed, it is stated by Mr. 
 Hardy, the consul at St. Jago, in a letter to Lord Palmerston, of 
 the 18th February, 1837, * That the Portuguese brig Boca Negra, 
 landed on the 6tR inst. at Juragua, a little to windward of this 
 port, (St. Jago,) 400 Africans of all ages, and subsequently enter 
 ed this port.' But in order that we may be assuredly within the 
 mnrk, no claim shall be made on account of these distant ports. 
 Confining ourselves to the Havana, it would seem probable, if it 
 be not demonstrated, that the number for that port, a fortiori, for 
 the whole island, may fairly be estimated at 60,000." 
 
 This evidence is important to show what is the real value of 
 this certificate of the Governor General. There is one other 
 proof which I will read to the court, and leave it to your Honors 
 to judge of its bearing, and of the conclusion to which it arrives. 
 It is the statement of the Spanish vice consul, Mr. Vega. 
 
 " The following statement was made to me by A. G. Vega, Esq., 
 Spanish consul, as near as 1 can now recollect, and according to 
 my best knowledge and belief, 10th January, 1840. 
 
 W. S. HOLABIRD. 
 
 " That he is a Spanish subject ; that he resided in the Island of 
 Cuba several years; that he knows the laws of that island on the 
 subject of slavery ; that there was no law that was considered in 
 force in the Island of Cuba, that prohibited the bringing in African 
 slaves ; that the court of mixed commissioners had no jurisdiction 
 except in case of capture on the sea ; that newly imported African 
 negroes were constantly brought to the island, and after landing 
 were bona fide transferred from one owner to another, without 
 any interference by the local authorities or the mixed commission^ 
 and were held by the owners and recognized as lawful property; 
 that slavery was recognized in Cuba by all the laws that were con 
 sidered in force there ; that the native language of the slaves was 
 kept up on some plantations for years. That the barracoons are 
 public markets, where all descriptions of slaves are sold and 
 bought; that the papers of the Amistad are genuine, and are in the 
 usual form ; that it was not necessary to practice any fraud to ob- 
 
59 
 
 tain such papers from the proper officers of the government ; that 
 none of the papers of the Amistad are signed by Martinez, spoken 
 of by R. R. Madden, in his deposition ; that he (Martinez) did not 
 hold the office from whence that paper issued." 
 
 This is the statement given to the District Attorney by Mr. 
 Vega, and by him made a part of this case. This Spanish func 
 tionary declares positively, that he knows there is no law in force 
 in Cuba against the African slave trade, and that recent Africans 
 are held and sold bonafide as slaves. It is conclusive to prove this 
 fact, that the illegal importation and purchase of Africans is openly 
 practised in Cuba, although it is contrary to the laws of Spain, but 
 those laws are not considered in force, that is, the violation of 
 them is constantly connived at by the authorities. 
 
 It may not be universally known, but is doubtless known to 
 members of this court, that there is a volume of correspondence on 
 this subject, by our consul at Havana, which will be communicat 
 ed to Congress for publication in a few days, and I can state from 
 my personal knowledge that it confirms every word of Dr. Mad- 
 den's statements on this point, and will show how much reliance 
 is to be placed on this certificate of the Governor-General. 
 
 But I will return to the letter of the Chevalier d'Argaiz. 1 
 have not the honor of knowing this gentleman personally, as I 
 knew his predecessor, but I certainly entertain no feeling of un- 
 kindness towards him. And in examining his correspondence, al 
 though it is my duty to show that his demands are utterly inad 
 missible and unprecedented, yet it must be admitted that his 
 sympathy and partiality for his own countrymen are at least na 
 tural $ and if his zeal and earnestness are somewhat excessive, they 
 are at least pardonable. There is in this letter, I must say, a 
 simplicity, what the French call bonhommie, which gives me a 
 favorable impression of his character, and 1 certainly feel the 
 farthest possible from a disposition to pass any censure on him. 
 I repeat that, so far as this sympathy is concerned, if it is not en 
 tirely excusable, it is much more reasonable than it is in some 
 others who have not the same interests to defend. He goes on 
 to express his pleasure at the assurance received from the Secre* 
 tary, that " whatever may be the final settlement of the question, 
 it will be in consequence of a decision emanating from the gov 
 ernment, and not from any other source ;" and he adds, that "he 
 
60 
 
 doubts not such decision will be conformable with the opinion 
 which was confidentially communicated to him at the Department 
 of State on the 19th of November, as founded on that of a learned 
 lawyer, and which he was assured had been adopted by the cabi 
 net." 
 
 I take it for granted that the opinion referred to is the opinion 
 of the Attorney-General of that time, Mr. Grundy, contained in the 
 Congressional document. It will be necessary for me to examine 
 that document before I close, as well as the other papers, and I 
 wish to say that the decease of that gentleman, under the circum 
 stances in which it occurred, has made such an impression on my 
 mind, as could not have but disarmed me of any disposition to 
 censure him, if I had before entertained it. It will be a painful 
 duty to me to examine, as I must, with the utmost severity, that 
 document. And I shall show that it is such, that neither the 
 courts nor the cabinet ought ever to have acted on it. 
 
 In another part of his letter, M. d'Argaiz says of Ruiz and 
 Montes, that " they were not exempted from the persecutions of 
 an atrocious intrigue, and the undersigned is not the first who has 
 so styled this persecution.' This is a pretty plain intimation that 
 the American Secretary of State was the first who called the suit 
 of my clients for legal redress " an atrocious intrigue," in his 
 " confidential conversation" with the Spanish minister. This is 
 followed by an idea so novel and ingenious that it is necessary to 
 repeat the whole of it. After complaining that negroes should be 
 allowed to be complainants, he goes on to argue that they ought 
 to be considered, " morally and legally, as not being in the United 
 States," and of course, if they should be delivered up physically, I 
 suppose it was to be inferred that the Executive would not incur 
 any responsibility. 
 
 " They are morally and legally not in the United States, be 
 cause the court of Connecticut has not declared whether or not it 
 is competent to try them. If it should declare itself incompetent, 
 it declares that they are under the cover of the Spanish flag ; and, 
 in that case, they are physically under the protection of a friend 
 ly government, but morally and legally out of the territory and 
 jurisdiction of the United States ; and, so long as a doubt remains 
 on this subject, no judge can admit the complaint. If this argu 
 ment be of any value to the Secretary of State of the Government 
 of the Union, the undersigned entreats him to prevail on the Pres- 
 
61 
 
 ident to cause a protest, founded on this argument, to be official* 
 ly addressed to the court of New York." 
 
 His predecessor, M. Calderon, called upon the President for a 
 proclamation forbidding the courts to take up the case, and the 
 present minister of Spain insists that he shall send forth his pro~ 
 test to take it out of the hands of the courts and this on the 
 ground, that my clients, although personally imprisoned for 
 eighteen months by the IL S. Marshal, under order of the U. S. 
 Court, yet are "not morally and legally in the United States. " 
 There is another argument of the same gentleman, very much of 
 the same character. The court will find it in his first letter after 
 the arrest of Ruiz and Montes at New York. He says : 
 
 " It would be easy to demonstrate the illegality of these arrests, 
 the orders for which have possibly been obtained from the attorney 
 by surprise : as it would also be easy to show the ignorance of 
 the declarant, Tappan, in declaring that Ruiz is known by the 
 name of Pipi, whereas he would have been known and distin 
 guished throughout Spain, as all other Joses are, by the diminu 
 tive of Pepe, and thus it appears that a Pepe has been imprisoned 
 instead of a Pipi, which I believe the law does not permit." 
 
 The argument is certainly ingenious, and if it is sound at all, it 
 is worth more in favor of the Africans than of the Spaniards, as I 
 may hereafter have occasion to show, when I come to consider 
 the case of nine-and-forty persons with Spanish names, who have 
 been arrested and brought into court by African names. 
 
 The Chevalier d'Argaiz, in the close of this letter, exhibits his 
 loyalty towards the then acting sovereign of his nation. 
 
 " At the moment when the heart of the august Queen- Govern* 
 ess is filled ^vith delight on account of the termination of a civil 
 war, and the assurance of the throne of her august daughter, her 
 minister in the United States has to perform the painful duty of 
 diminishing her happiness by communicating to her, as he did by 
 letter on the 19th instant, the disagreeable event which forms the 
 subject of this communication. The desire of calming the dis* 
 quiet which this news may occasion in the mind of her Majesty, 
 together^ with that of alleviating the lot of the two prisoners, urge 
 the undersigned to entreat you, Mr. Secretary of State, to take into 
 consideration what he has here set forth, and to afford him the 
 means, in a prompt reply, of satisfying those just desires, which 
 will be completely done if he is able to transmit such a reply to 
 
62 
 
 his Government by the packet sailing for Havre on the 1st of 
 November next." 
 
 It must doubtless, said Mr. A., be some consolation to this loy* 
 al minister, to reflect that before the august Queen-Governess 
 could have received the painful intelligence of the imprisonment 
 of two such meritorious subjects as Euiz and Montes to diminish 
 her happiness, her heart had been gratified in a much better man 
 ner. In the pursuit of that happiness for which she longed, it 
 seems that she retired altogether from the cares of state, into the 
 comforts of domestic life, with a husband that, I hope has calmed 
 her disquiet, and if it should ulimately turn out that the lives of 
 these poor Africans are saved, there will be no further occasion to 
 diminish the happiness of the august Queen-Governess. 
 
 On the 30th of December, five days after the date of the letter 
 I have been commenting upon, the Chevalier d'Argaiz wrote 
 again to the Secretary of State. 
 
 " WASHINGTON, December 30, 1839. 
 
 " SIR In the conversation which I had with you on the morning 
 of the day before yesterday, you mentioned the possibility that 
 the Court of Connecticut might, at its meeting on the 7th of Jan 
 uary next, declare itself incompetent, or order the restitution of 
 the schooner Amistad, with her cargo, and the negroes found on 
 board of her,; and you then showed me that it would be necessa 
 ry for the legation of her Catholic Majesty to take charge of them 
 as soon as the Court should have pronounced its sentence or re* 
 solution ; and, although I had the honor to state to you that this 
 legation could not possibly transfer the said negroes to Havana, 
 still it appears proper for me now to declare that 
 
 " Considering that the schooner Amistad cannot make a voyage, 
 on account of the bad condition in which she is, of her being en 
 tirely without a crew : 
 
 "Considering that it would be difficult to find a vessel of the 
 United States willing to take charge of these negroes, and to 
 transport them to Havana ; and, also, that these negroes have de 
 clared before the Court of Connecticut that they are not slaves ; 
 and that the best means of testing the truth of their allegation is 
 to bring them before the Courts of Havana : 
 
 " Being at the same time desirous to free the Government of 
 the United States from the trouble of keeping the said negroes in 
 prison, I venture to request you to prevail upon the President to 
 

 63 
 
 allow to the Government of her Catholic Majesty the assistance 
 which it asks under the present circumstances from that of the 
 United States, by placing the negroes found on hoard of the said 
 schooner, and claimed by this legation, at the disposition of the 
 Captain General of the Island of Cuba, transporting them thither 
 in a ship belonging to the United States. Her Catholic Majesty's 
 Government, I venture to assert, will receive this act of gene 
 rosity as a most particular favor, which would serve to strengthen 
 the bonds of good and reciprocal friendship now happily reigning 
 between the two nations." 
 
 Here is no longer a demand for the delivery of slaves to their 
 owners, nor for the surrender of the Africans to the Spanish min 
 ister as assassins, but an application to the President of the United 
 States to transport forty individuals beyond the seas, to be tried 
 for their lives. Js there a member of this Honorable Court that 
 ever heard of such a demand made by a foreign minister on any 
 government 1 Is there in the whole history of Europe an in 
 stance of such a demand made upon an independent government 1 
 I have never in the whole course of my life, in modern or ancient 
 history, met with such a demand by one government on another. 
 Or, if such a demand was ever made, it was when the nation on 
 which it was made was not in the condition of an independent 
 power. 
 
 What was this demand? It was that the Executive of the 
 United States, on his own authority, without evidence, without 
 warrant of law, should seize, put on board a national armed ship, 
 and send beyond seas, forty men, to be tried for their lives. I 
 ask the learned Attorney General in his argument on this point 
 of the case, to show what is to be the bearing of this proceeding 
 on the liberties of the people. I ask him to tell us what authori 
 ty there is for such an exercise of power by the Executive. I 
 ask him if there is any authority for such a proceeding in the 
 case of these unfortunate Africans, which would not be equally 
 available, if any President thought proper to exercise it, to seize 
 and send off forty citizens of the United States. Will he vin 
 dicate such an authority'? Will this Court give it a judicial 
 sanction? 
 
 But, may it please your Honors, what was the occasion, the 
 cause, the motive, which induced the Secretary of State to hold 
 
this personal communication with the Spanish minister on the 
 28th of December ? What had occurred, to induce the Secretary 
 of State to send for the Chevalier d'Argaiz, and tell him that the 
 court of Connecticut was about to pass a decree that these Afri 
 cans should be delivered up, and that our government would be 
 ready to deliver them to him ! What induced the Secretary of 
 State to come to the conclusion that there was any sort of proba 
 bility that the Court of Connecticut would so adjudge] The docu 
 ments do not inform us at whose suggestion or by what information 
 the Secretary of State acted in this remarkable manner. We are 
 left to infer, that his course was founded, probably, on the opinion 
 of the late Attorney General, with a suggestion from the District 
 Attorney 1 of Connecticut. I refer to a letter of the Secretary of 
 State to Mr. Holabird, January 6, 1840, in connection with this 
 letter of the Spanish minister, of December 30. The Secretary 
 says*' Your letter of the 20th ultimo," that is, the 20th of Decem 
 ber, " was duly received." Now, said Mr. Adams, it is a rrmark- 
 able fact, that this letter of the District Attorney, of December 20 
 1839, was not communicated with the rest of the documents. Why 
 it was not communicated is not for me to say. The call of the 
 House of Representatives was in the usual form, for information 
 " not incompatible with the public interest ;" which, of course, 
 gives the President the right to withhold any documents that he 
 thinks proper. That letter, therefore, is not communicated, and 
 I cannot reason from it, any farther than its contents may be pre 
 sumed, from the intimations in the letter of the Spanish minister, 
 in connection with the subsequent proceedings. The Secretary 
 says 
 
 "WASHINGTON, January 6, 1840. 
 
 " Sir Your letter of the 20th ultimo was duly received, and has 
 been laid before the President. The Spanish minister having ap 
 plied to this department for the use of a vessel of the United States, 
 in the event of the decision of the circuit court in the case of the 
 Amistad being favorable to his former application, to convey the 
 negroes to Cuba, for the purpose of being delivered over to the 
 authorities of that island, the President has, agreeably to your 
 suggestion, taken in connection with the request of the Spanish 
 minister, ordered a vessel to be in readiness to receive the ne 
 groes from the custody of the marshal as soon as their delivery 
 shall have been ordered by the court." 
 
65 
 
 Now, what could that suggestion have been 1 It will be remem 
 bered that the Secretary of State had before directed the District 
 Attorney, Sept. 11, "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 Fede 
 ral 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 inti 
 mation 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 war 
 rant 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 coun 
 try 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 Ged- 
 ney and Meade be directed to proceed to Cuba, for the purpose erf 
 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 men 
 tioned order, you will cause t 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 bs handed 
 over to the commander of the vessel which is to take out the ne 
 groes, 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 
 5 
 
66 
 
 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 
 tfye 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 1 
 They could testify to nothing but the circumstances of the cap- 
 ture. 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, there 
 fore, give the Executive credit for this sympathy towards the Af 
 ricans. It was a mere pretence, 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 incontestible evidence of a 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 opin 
 ion 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 Exe 
 cutive authority that inherent power which I suppose has been 
 discovered, by which the President, at his discretion, can seize 
 
67 
 
 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 defence 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 au 
 thorities 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 robbecs 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 
 jconstruction of the treaty ; that it is not a mere matter of Execu 
 tive discretion 5 but that, before the Government enforces the 
 demand of the Spanish claimant, that demand must be substan. 
 tiated 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 con. 
 firm this position. 
 
 " It will be recollected that, that if we adopt this as the true 
 construction of the treaty, should any occasion ever arise wheji 
 our citizens shall clajm 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 minis- 
 
68 
 
 terial agents, without any of those safeguards which courts of jus- 
 tice 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 investiga 
 tion of claims of this nature, and yet, assuredly, if the construc 
 tion contended for be correct, such must be the result j for, if he 
 is to issue the order .upon due and sufficient proof, the proof must 
 he sufficient to his mind. 
 
 ** We further submit, that, in regard to the Executive, there are 
 no rules of evidence nor course of proceeding established j and 
 that, in all such cases, unless the claimant be directed to the 
 courts of justice, ihe conduct of the affair must, of necessity, be 
 uncertain, vague, and not such as is calculated to inspire confi 
 dence 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. 
 
 " These 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 ; orders 
 which have been repeated, at different times, to as late a date as 
 the 4th November, 1838, by which the trade is expressly prohibit* 
 ed; 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 apprized them that they were 
 illegally introduced into the Havana 5 and on this state of facts 
 we, with great respect, insist that the purchasers of Africans ille 
 gally introduced into the dependencies of a country which has 
 prohibited the slave trade, and who make the purchase with know 
 ledge of this fact, can acquire no right. We put the matter on 
 the Spanish law ; and we affirm, that Messrs Ruiz and Montes 
 have no title, under that law, to these Africans. 
 
 " If this be so, then these negroes have only obeyed the dictates 
 of self-defence. They have liberated themselves from illegal re- 
 
69 
 
 straint ; 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 other 
 wise. *W 
 
 " 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: 1 
 
 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 con- 
 cerned 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 
 
70 
 
 counsel for the negroes taken on board the schooner Amistad, ad 
 dressed to the President of the United States ; and asking my opi 
 nion upon the different legal questions presepted by these papers. 
 
 '' I have given to the'subject all frhe consideration which its im 
 portance demands ; and now present to you, and through you , to 
 the President, the result of my reflections upon the whole sub 
 ject. 
 
 " The following is the statement of facts contained in your 
 communication : The 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 pos- 
 session 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 course of steering at night, 
 to keep her on the coast of the United States ; that on seeing 
 land off New- York, they came to the coast, and some of the ne 
 groes 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 as 
 sumption 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 
 
71 
 
 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 voy* 
 age 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 mu 
 nicipal 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 du* 
 ties, 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 con- 
 fided.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 j and this is true, whether the officer or 
 tribunal be legislative, executive, judicial, or special. Wheaton's 
 Elements of International Law, page 121 ; 6M Peter's, page 729." 
 There is the basis of his opinion j 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 hdrrible 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 ihis document, to inquire into 
 any facts of the case. That is the essence of the whole argument 
 of the late Attorney-General. At a subsequent part of my argu 
 ment 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 6 
 passport it bears on its face the insignia of imposture. But at 
 present I will only observe that it is a 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 cer 
 tificate of the Spanish Captain General. He says t 
 
 " Were this otherwise, all confidence and comity would cease 
 to exist among nations 5 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 sub 
 ject was fully examined, and the opinion of the Supreme Court of 
 the United States establishes the following points: 
 
 t4 h 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 cour* of the American Govern- 
 
73 
 
 ment on the subject of visitation and search would decide any 
 case in which that right had been exercised by an American crui 
 ser, 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 deci 
 sion 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 argu 
 ment or opinion of the Attorney-General on which this whole pro 
 ceeding 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 fa 
 vor 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 " the courts of no country exe 
 cute the penallaws of another." I may ask, does any nation exe 
 cute the slave laws of another country ? Is not the slave sys 
 tem, the Code JVbzr, 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 
 10 
 
74 
 
 what authority will this court undertake to do this 1 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 posses 
 sion 1 The captors in this case, are Gedney and Meade, the own 
 ers are the Africans. The Attorney says, 
 
 " This vessel was not engaged in the slave trade ; she was em 
 ployed 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 an 
 other in our own country. I consider the facts as stated, so far 
 as this government is concerned, as establishing a right of owner 
 ship 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 in 
 tention was not accomplished until the slaves had reached their 
 final destination on the plantation. This is the principle univer 
 sally applicable to coasting vessels. I say further, that the ob 
 ject of Ruiz and Montes was illegal, it was apart of the voyage from 
 Lomboko, and when they fell into the hands of Lieutenant Ged 
 ney, 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 took place on board of the ship. The late Attorney, how 
 ever, comes to the conclusion that the courts of the United States 
 cannot proceed criminally against these people, that the provi 
 sions of the Acts of Congress against the slave trade are not ap 
 plicable 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 be 
 fore said respecting the treaty. It can have no possible applica 
 tion 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 
 
75 
 
 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 re 
 ceive 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. 
 
 1 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 Span 
 ish 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 maj^not escape punishment. 
 
 <c 4. These negroes deny that they are slaves; if they should 
 be delivered to the claimaints, 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 Span 
 ish 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 or- 
 der of the President, and sent beyond seas by his sole authority ! 
 The Cabinet adopted that opinion ; why, then, did they not act 
 upon it 1 Why did not the President send his order to the Mar 
 shal to seize these men, and ship them to Cuba, or deliver them 
 to the order of the Spanish Minister 1 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 particu* 
 lav course of proceeding, unprecedented among civilized coun- 
 
76 
 
 tries, which was thus officially sanctioned, and yet the govern 
 ment did not dare to do it. Why did they not do it 1 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 troops. 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 minis- 
 ter says his government has no ship to receive these people, and 
 the President must therefore go further, and as he is responsible 
 for the safe-keeping and delivery of the men, he must not only de 
 liver 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 Sec 
 retary of State, of an agreement with Mr. Argaiz to send them to 
 Cuba in a public ship. Here is the memorandum of the .Secreta 
 ry of State to the Secretary of the Navy. 
 
 " DEPARTMENT OF STATE, January 2, 1S40. 
 
 "The vessel destined to convey the negroes of the Amistad to 
 Cuba, to be ordered to anchor off the port of New Haven, Con 
 necticut, 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 them 
 selves in readiness to proceed in the same vessel, for the purpose 
 of affording their testimony in any proceedings that may be or 
 dered 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. 
 
77 
 
 The Secretary of the Navy to the Secretary of 
 
 " NAVY DEPARTMENT, Jan. 2, 1840. 
 
 SIR, I have the honor to state that, in pursuance of the me 
 morandum 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 proba 
 bly be at the point designated a day or two before the 10th inst., 
 and will there await her final instructions in regard to the ne 
 groes." 
 
 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 1" 
 
 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 re 
 ceive 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 sin 
 gular 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 i-s 
 a mere order. 
 
 " The Marshal of the United States for the district of Connec 
 ticut will deliver over to Lieut. John S. Paine, of the United 
 States Navy, and aid in conveying on board the schooner Gram 
 pus, 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, Se<:, of State, rt 
 
78 
 
 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 llth of January, the District Attorney 
 had to send a 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 war 
 rant." 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 ap 
 peal 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 Gram'pus 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 OF STATE, Jan. 12, 1840. 
 
 " SIR, Your letter of the llth 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, 
 
 "JOHN FORSYTH, 
 
 "W. S. HOLABIRD, Esq., 
 
 " Attorney U. S.for Diet, of Conn-'' 
 
19 
 
 Now, may it please your Honors, this corrected order, the 
 final order of the President of the United States, is not in evi 
 dence, 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 draw 
 ing 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 1 It is questionable whether such a 
 power could have been exercised by the most despotic govern 
 ment of E^urope. 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 al 
 low 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, con 
 trary 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 PreJ 
 sident of the United States to be made, of the lives and liberty of 
 

 
 thirty-she 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 Depart 
 ment had given a written opinion, that, at the instigation of a fo 
 reign 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 J Would it 
 not have been by the tenure of Executive discretion, caprice or 
 tyranny 1 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 1 Well was it for the country well was it 
 for the President of the United States himself that he paused 
 before stepping over this Rubicon ! That 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 pub 
 lic vengeance of the barracoon slave-traders. Had the unfortu 
 nate 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 en 
 dure 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 ser 
 vile 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 
 
81 
 
 Corpus, paramount even to the obsequiousness of a federal mar 
 shal to an Executive mandate. The opinion of the Attorney Ge 
 neral, 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 1 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 ope 
 rations they might be choused out of that right, the Circuit and 
 Supreme Courts ousted of their jurisdiction, and the hapless cap 
 tives 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 maindeck, thirty-six persons 
 additional to the ship's company, was in the dead of winter, order 
 ed 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. 
 
 O"f 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 deci 
 sion 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 pend 
 ing; it carries out in form the whole idea of the Attorney Gene 
 ral's opinion, that the President's order to the marshal is of itself 
 all sufficient to supersede the whole protective authority of the 
 11 
 
judiciary and with this pretension on the face of the order, is 
 associated another, if possible still more outrageous upon every 
 security to personal liberty, in the direction to the marshal to de 
 liver 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 SUUM ; and that no greater 
 violation of his official oath to protect and defend the Constitu 
 tion 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 //, the 
 negroes, late of the Amistad. That he was ignorant, profoundly 
 ignorant of this self-evident truth, inextinguishable till yonder gilt 
 framed Declarations of Independence shall perish in the general 
 conflagration of the great globe itself. I am constrained to be 
 lieve for to that ignorance, the only alternative to account for 
 this order to the Marshal of the District of Connecticut, is wilful 
 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 demon 
 strate 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 entit 
 led 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 
 
83 
 
 to the satisfaction of the Circuit Court." 10 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 resort 
 ed 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, Jus 
 tice, and the Rights of human kind 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 al 
 together 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 bur- 
 den as to be utterly unfit for the service upon which she was or 
 dered. 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 hu 
 man 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 al 
 most certain casualty if a storm should befal them on the passage 
 to Cuba, they must all inevitably perish. He remonstrated in 
 vain ! He was answered only by the mockery of an instruction, 
 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 
 arid 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 Presi 
 dent of the United States who signed, nor the Secretary of State 
 who transmitted the order knew, but both of them mistook the 
 
84 
 
 court, before which the trial of the Africans was pending. They 
 supposed it was the Circuit, when in fact it was the District 
 Court. 
 
 The Grampus arrived at New Haven three days hefore the de 
 cision 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 Brook 
 lyn, 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 1 
 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 oc 
 curring 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 1 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 sub 
 ordinate 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 des 
 tination unavowed, was a very intelligble 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 intelligi 
 ble to the political sympathies of a judge presumed to be congen 
 ial 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 Afri 
 cans 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 Ex 
 ecutive warrant to the marshal for the delivery of the negroes, he 
 immediately perceived its nullity by the statement that they were 
 
85 
 
 in custody under a process from the " Circuit Court" and that 
 the same error had been committed in the instructions to the mar* 
 shal. " 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 j 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 llth 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. Mis 
 givings were already entertained that the decision of the judge 
 might not be so complacent to the longings of the Executive de 
 partment as had been foretold and almost promised on the 20th 
 of December. Mr. Holabird, therefore, at the desire of the Mar 
 shal propounds that decent question, and requests precise instruc 
 tions, u 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 1" 
 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 l J 2th of January, Mr. Forsyth in a confidential 
 letter to Mr. Holabird informs him that his missive of the day be 
 fore 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 cor 
 rected no uninitiated man can tell. Of the final warrant of Mar 
 tin 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 
 rmains 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 
 
86 
 
 Representatives, communicated to them by massage from Mr. Van 
 Buren himself, this original, erroneous, uncorrected order of the 
 7th of January, 184-0, was the only one included in the communi 
 cation. 
 
 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 car- 
 ried into execution, unless an appeal shall actually have been inter- 
 posed, 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 ru 
 lers 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 Gra 
 beau 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 expel- 
 
87 
 
 led 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 de 
 partment 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 con 
 cerned in this business, as to have perverted their minds with re 
 gard 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 atten 
 tion of the Court to a very improper paper, in relation to this case, 
 which was published in the Official Journal of the Executive Ad 
 ministration, on the very day of the meeting of this Court, and in 
 troduced with a commendatory notice by the editor, as the produc 
 tion of one of the brightest intellects of the South. I know not 
 who is the author, but it appeared with that almost official sanc 
 tion, on -the day of meeting of this Court. It purports to be a re 
 view of the present case. The writer begins by referring to the de 
 cision of the District Court, and says the case is " one of the deep 
 est 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 slave 
 ry and freedom between foreigners ; of the lawfulness or unlaw- 
 ness of the African slave trade ; and has not, when properly con 
 sidered, the remotest connection with the interests of the south 
 ern states. 
 
 What was the purpose or intent of that article, I am not pre- 
 pared to say, but it was evidently calculated to excite prejudice, 
 to arouse all the acerbities of feeling between different sections of 
 
85 
 
 this country, and to connect them with this case, in such a man 
 ner as to induce this Court to decide it in favor of the alledged in 
 terests 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 ap 
 peared. I now wish simply, to refer your Honors to the original 
 principle of slavery, as laid down by this champion of the institu 
 tion. 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 circum 
 stances, 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. 
 
 44 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 demand 
 ed from this Court, by the Official Journal of the Executive, on 
 behalf of the southern states 1 Is that a principle recognized by 
 this Court 1 Is it the principle of that DECLARATION 1 [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 
 alledged 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 princi 
 ple on which these United States stand before the world 1 That 
 DECLARATION says that every man is " endowed by his Creator 
 with certain inalienable rights," and that t; among these are life, 
 liberty, and the pursuit of happiness." If these rights are inalien 
 able, 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 
 
89 
 
 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 prin 
 ciple. 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 des 
 potism 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 Chris 
 tian. That it is utterly incompatible with any theory of human 
 rights, and especially with the rights which the Declaration of Inde 
 pendence 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 no 
 thing more in behalf of these unfortunate men, than this Decla 
 ration. The opposite principle is laid down, not by an unintelli 
 gent 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 re* 
 ceive punishment for what offences they may have committed 
 against their masters, those who have been in Cuba in undisputed 
 possession of property under the Spanish flag were instantly de 
 prived 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 ap 
 palling 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 char 
 ges which the negroes were instigated to make, for offences com 
 mitted against the negroes while they were in Cuba, under the 
 
 Spanish jurisdiction. This is the justice of an American court, 
 12 
 
90 
 
 bowed down in disgraceful subserviency before the bigoted 
 dates of that blind fanaticism which prompted the Judge upon the 
 bench to declare in his decree, in reference to one of these ne-> 
 groes, 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 ! I It is a 
 base outrage (I can use no milder language,) upon all the sympa 
 thies 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 commu 
 nicated to Congress. The Spanish minister seems to be ever at 
 tentive to all that is going on, in all the departments of Govern 
 ment, with relation to this case. In a letter dated the 20th of 
 March, 1840, he observes that the Secretary of State had confi* 
 dently asked him to furnish a copy of the existing laws of Cuba 
 relative to negro slavery. What was this for 1 Was the Presi 
 dent 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 punish 
 ment 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 ease, but he had 
 none to give. He then u 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, sole 
 ly, as they alledge, in pursuance of a demand made by the minis 
 ter of Spain to that effect. What is the reply ? Mr. Argaiz says 
 he cannot communicate the law officially, because he cannot re~ 
 cognize the jurisdiction of the Court over the case. Here is an 
 other point-blank contradiction of the material 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 be 
 gins, 
 
91 
 
 tf Mr. Forsyth was 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 Argaiz 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, be 
 tween Spain and England." 
 
 Now, may it please the Court, may I inquire why this demand 
 was limited to laws subsequent to the treaty of 18181 The de 
 cree for abolishing the slave trade was issued in 1817. Why did 
 the Spanish minister limit his request to laws passed after 1818 ? 
 Why was not the decree of 1817 brought forward 1 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 back. 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 Ar 
 gaiz refers to certain resolutions of the United States Senate, 
 passed the 15th of the same month, commonly called Mr. Cal- 
 houn's resolutions. I showed the other day, that if these princi 
 ples 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 
 
 u 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 be 
 long, would be placed under the penalty which the laws of na 
 tions 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 estab 
 lished among the persons on 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 proper 
 ty 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 irre 
 vocably 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 ladi- 
 nos, 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 descrip 
 tion of the person, as to his height, age, complexion, hair, fore- 
 
 * It is thought best to give a copy of this celebrated passport, as it appears in 
 the Congressional Documents, with the exception that the interpolate word we - 
 gros is omitted, and the portions of the paper which were in writing are printed 
 in italics. It will be seen that the signature of the Captain General, of which so 
 much was made, was printed ! 
 
 N. HABANA, 26 de Junio, de 1839. 
 Concede licencia a cuerenta y nueva ladinos nombra- 
 dos Antonio, Simon, Lucas Jose, Pedro, Martin, Manuel, 
 Andres, Eduardo, Celedonio, Bartolo, Ramon, Agustin, 
 Evaristo, Casimiro, Melchor, Gabriel, Santorion, Esco- 
 lastico, Pascual, Estanislao, Desiderio, Nicolas, Este- 
 ban, Tomas, Cosme, Luis, Bartolo, Julian, Frederico, 
 Salustiano, Ladislao, Celestino, Epifaneo, Tibureo, Ve. 
 nancio, Felipe, Francisco, Hipolito, Benito, Ysidoro, Vi 
 cente, Dionisio, Apoloneo, Escquiel, Leon, Julio, Hipolito, 
 y Zenon, de la propriedad de Don Jose Ruiz, para que 
 pasen h Puerto Principe por mar, debiendo, presentarse 
 
 Filiacion. 
 
 Estatura 
 Edad 
 Color 
 Pele - 
 Frente 
 Cejas - 
 Ojos - 
 Nariz - 
 Boca, 
 fiarba 
 
 Senales particulars^ 
 
 con esta al juez territorial respectivo. 
 
 Derechos dos real es una rubrica.] 
 
 Commandancia de Matriculas. 
 Pasan en la goleta Amistad 6. la Guanaja> patron Ferrer. 
 
 Habana, y Junio 27, de 1839. 
 
 ESPELETA. 
 
 MARTINEZ. 
 
M 
 
 head, 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 con 
 formity of his person to the marks given ; and a passport is no 
 thing, and is good for nothing, if it does not accord with the 
 marks given. The man who presents it must show by this accord 
 ance that he is the person named. Everybody 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 in 
 stantly compares your person with the description, and if it cor 
 responds, 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 a 
 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 pro 
 tection. 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 correspon- 
 
dence of the description with his person. I mention this to show 
 that the value of a passport, according to the rules of those coun. 
 tries 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 incompe- 
 tency to answer the purpose of a 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 1 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 im 
 possible. 
 
 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 Jus 
 tice 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 deliver 
 ing 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-ex 
 amination, by what I 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 opin 
 ions, with the reasons. I would not call in question the propriety 
 of the determination of the Court in that day, severally, to with 
 hold their reasons from the public j 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 cha 
 racter, and the decisions of the District, Circuit, and Supreme 
 
96 
 
 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, 
 religiousj and political revolution in the opinions of mankind 
 which has been, from a period coeval with that of North Ameri 
 can Independence, struggling against the corribined 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 wherev 
 er they could be found the trading Vessels of Portugal and of 
 Spain, a privateerj named the Columbia, commanded by a citizen 
 of the United States named Metcalf, came into the port of Balti 
 more under the flag of Venezuela there clandestinely shipped a 
 crew of thirty or forty men, not one of whom had ever owed al 
 legiance to the Republic of Venezuela, and sailed in search of 
 adventure, to pounce upon the defenceless upon any and every 
 ocean for the spoilsi 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 Ameri 
 can, from Bristol, Rhode Island^ and borrowed twenty-five negro 
 captives from her 5 then sundry ostensible Portuguese vessels, 
 from which she took nearly two hundred 5 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 mer 
 chandise the Arraganta steered for the coast of Brazil, for a mar 
 ket. 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 
 
96 
 
 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 vio 
 lation 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 contend 
 ing for their independence, and those prohibiting their participa 
 tion 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 
 a 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, punisha 
 ble with death, it was that of this same John Smith. He had re 
 nounced 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 1 
 
 And can we choose but further exclaim if ever hapless Afri 
 can, 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 a fortunate casualty brought within 
 our jurisdiction and the beneficent operation of our emancipating 
 laws, 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 
 
97 
 
 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 in 
 dicted 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 suffer 
 ed to go at large, entirely unmolested, but was permitted to file 
 his claim, before the District Court of the United States in Geor 
 gia, for the restitution to him of the Antelope and all her living 
 cargo, as captured jure belli, 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, adjudicat 
 ing in a State where slavery is the law of the land. If this cir 
 cumstance 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 re 
 mained un whipped 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 Dal 
 las, filed in the District Court a libel against the Antelope, or Gen 
 eral Ramirez, for forfeiture, under the act of Congress of 20th 
 13 
 
98 
 
 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 en 
 gaged 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 de 
 clared free, and those taken from the Spaniards and Portuguese 
 doomed to perpetual slavery 1 
 
 The judge hunted up sundry old decisions in the Supreme Court 
 of the United States, and, finally, the case of the Josafa et Segun- 
 da, 5 Wheaton, 338, for a principle " that, upon a piratical or ille 
 gal capture, the property of the original owners cannot be for 
 feited 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 
 
99 
 
 Spanish owners of the Antelope could not be forfeited by the mis 
 conduct 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 j but to that other miscon 
 duct 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 mis 
 conduct, the precedent of the Josafa et Segunda had no applica 
 tion 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 lib 
 erated 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 smug 
 gle 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 pro 
 ceeded, 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. 
 
 A.t 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 sus 
 tained 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 
 
100 
 
 well they might assent!) that the claim of John Jackson to sal 
 vage, 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 21st 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, distinguish 
 ing the negroes respectively belonging to each. He was also re 
 quired to designate the very small number adjudged to the Unit 
 ed 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 free- 
 dom, was the first incident which brought to a pause the legal 
 standard of morality of a Connecticut District Judge of the Unit 
 ed States in the case of the Amistad captives. An estimate in dol 
 lars and cents of the value at New Haven, of from two to three 
 hundred living men and women, for the purpose of allowing sal 
 vage 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 shock 
 ed his moral sense, and he instantly decided that men and women 
 were not articles for a price current in the markets overt of Con 
 necticut. 
 
 In the markets of Savannah, nothing was more simple. The 
 clerk of the District Court, with his two associated resident mer 
 chants, in obedience to the order of the judge appraized the ne 
 groes taken from the Spanish and Portuguese vessels at three 
 hundred dollars per head, making the aggregate of sixty-one thou 
 sand five hundred dollars [for 205 souls] ; and they were of opi 
 nion 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 1 Fifteen thousand three hundred 
 
101 
 
 and seventy-five dollars for two hundred anil 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 Gre 
 cian 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 in- 
 fliction 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 dol 
 lars 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 Geor 
 gia, 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 re 
 mained to be apportioned. 
 
 What had become of the missing one neither the clerk nor the 
 judge seems to have thought it worth his while to inquire- why 
 should they 1 it was but one man and that man a negro ! no fur 
 ther 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 be 
 tween the decks of a slaver in the middle passage, but on the soil 
 of the American Union, in the mild and healthy climate of GeOT- 
 gia in the custody of an officer commissioned by the President 
 
102 
 
 of the United States, and under the protection of their judicial 
 magistracy. In the case of the Amistad, the mortality ceased, as 
 as soon as the captives were admitted to the privilege of breath' 
 ing 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 1 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 respect 
 ively belonging to each of these classes. He could obtain no evi 
 dence 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 5 
 that is, since they had been in the custody of the marshal. 
 
 It further appears from his report that the whole number cap 
 tured by the Arraganta had been 331, of which 213 were Por 
 tuguese, 93 Spanish, and 25 American. That of the whole num 
 ber 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 in 
 dividual survivors of each separate class, and the clerk therefore 
 reported that there had been captured by the Arraganta 213 Por 
 tuguese negroes,of which the average loss was 71 j 93 Spanish ne- 
 
103 
 
 groes of which the average loss was 3fy 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 ap 
 portioned 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 j 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 Dis 
 trict Attorney still claiming the freedom of all the negroes, and 
 objecting to the allowance of 75 dollars a head to Captain Jack 
 son 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 al 
 lowance to Captain Jackson for salvage was too high, and ought 
 to be regulated by the act of Congress in relation to the compen 
 sation given in case the said slaves had been decreed to be deliver 
 ed 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 1 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 the Josefa Segundas, 
 (Wheaton, 338,) where it was said, that as piracy can neither di 
 vest nor convey property, a pirate cannot, by a subsequent viola 
 tion of the laws of his own country, forfeit the property of which 
 
104 
 
 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 a 
 privateer, with a commission from Arismendi, under the Republic 
 of Venezuela, was not piracy ; and that the Josefa Segunda, a Span 
 ish vessel, and her cargo of negroes, captured by authority of such 
 a commission, were forfeited by a subsequent attempt of the cap 
 tors 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 ? 
 no doubt, with a commission from the same Arismendi. When 
 metamorphosed into the Arraganta, she took the Antelope and her 
 negroes, by a commission from Jlrtigas, quite as efficient to legi 
 timate a prize as that of Arismendi ; and John Smith, when cap. 
 tured with the Antelope and her negroes, by Captain Jackson, pro 
 duced this commission from Artigas as his warrant for his posses, 
 sion 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 Su 
 preme Court, in the case of the Josefa Segunda, instead of sustain 
 ing 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 Portu 
 guese 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 
 
105 
 
 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 endea 
 vored to show, did not belong to the case. " But it is contended,*' 
 (says the District judge) <c on the authority of some recent deci 
 sions in the British Admiralty Court, that Africans are to be con 
 sidered 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. This 
 doctrine may be correct in England, since there negroes have al 
 ways been held to be free, except in cases where they have volun 
 tarily 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 th 
 several States of the United States when they were British colo" 
 nies, 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 con 
 trary 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 Govern 
 ments 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 con 
 sider 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 consi 
 dered when they were found in the possession of the subjects or 
 citizens of that Government which had determined to abolish the 
 trade. 
 
 14 
 
106 
 
 " 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, / 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 would feel bound to respect the 
 rights of Africans no less than it would 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 engage 
 ment of Spain V' 
 
 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 to 
 tal 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 practised by Great Britain, and not 
 many years before by the United States themselves." Is this rea 
 soning 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 hun- 
 
107 
 
 dred 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 c&lo 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 Re 
 public, 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 Con 
 sul. 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 j 
 
108 
 
 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 with 
 in the provisions of the statute 1 No reader of the English lan 
 guage 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 1 Never was an obiter dictum of a judge more per- 
 emptory 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, with, 
 out 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 follows, that Smith had no interest on which 
 the forfeiture inflicted by law for this offence 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 contro 
 versy 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 smug 
 gler had stolen the instrument with which he committed the crime ! 
 No ! I 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 ! 
 
109 
 
 The wild and glaring inconsistency not only between the opin 
 ions 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 com 
 posure of justice or to the impartial exercise of the judicial facul 
 ty. 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 sarcasti 
 cally 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 vol 
 unteer, he quotes a passage from the decision of the British Court 
 in the case of the Amedee [Acton, 240,] and says, <c 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 hor 
 rors acted in St. Domingo opened the eyes of Government to con 
 sequences 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 Admi- 
 ralty." 
 
 "That slavery, (says again the Judge of the Circuit Court,) is 
 a national evil no one will deny except him [he] who would main 
 tain 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 
 
110 
 
 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 alto- 
 gether 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. Domin 
 go 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 Ad 
 miralty. As for slavery, every one knows it an evil, but it was en 
 tailed upon us by our ancestors ; it was provided for by the consti 
 tution 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 1 It was once lawful 
 who shall say it shall not be lawful forever 1 
 
 Upon the tone of this judicial argumentation I shall not in 
 dulge 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 ac 
 count 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. Vitu 
 peration of the slave trade in words, with a broad shield of pro 
 tection carefully extended over it in deeds. Slavery acknowl 
 edged an evil, and the inveteracy of its abuse urged as an unan 
 swerable argument for its perpetuity : the best of actions imput 
 ed to the worst of motives, and a bluster of mental energy to 
 shelter a national crime behind a barrier of national indepen 
 dence ; these are the characteristics exhibited by American in 
 collision with British Admiralty Courts. Or again, examine the 
 
Ill 
 
 respective opinions and decrees in their bearing upon the trade 
 itself : those of the British Court went directly to its suppres 
 sion j those of the American Courts, to its encouragement, secu 
 rity and promotion. The British Court has at least the consisten 
 cy 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 altogeth 
 er inter alios, whether the Spanish and Portuguse nations had au 
 thorized 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 diffi 
 culty occurs. No competent witness can tell which of the survi 
 ving Negroes were taken from the American vessels, which from 
 the Portuguese vessels," and which from the Antelope. The indi 
 viduals belonging to each of the three vessels cannot be identi 
 fied. How shall he distribute his doom of freedom and of slave 
 ry among the prize goods and the pirated merchandize of John 
 Smith 1 With a full conciousness of the gross and glaring injus 
 tice of the decree he says, THE LOT MUST DECIDE! Where did he 
 get his law for that 1 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 NOW 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 and 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 
 
11* 
 
 divination 1 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 num 
 ber from twenty-five to nine, [to seven,] for this depends upon 
 testimony that was interested to deceive, since in those twenty- 
 five, 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 inter 
 est in her and the slaves taken on board of her, must necessarily 
 follow her fate. But I am induced to think that the evidence pre 
 ponderates to prove that there were but ninety-three, and, that 
 number must also be reduced by the general scale of loss. Con 
 cerning the residue, the evidence appears so conclusive, that re 
 luctant 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 be 
 comes 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 proper 
 ty 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 proper 
 ty as prize of war there could have been no Spanish claimant to 
 whom it could have been restored. The decree of restoration to 
 Spanish owners was therefore ipse 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 llth of May, 
 1823, the Decree of the District Court, so far as related to the 
 vessel, the Antelope, was affirmed, and so far as related to the 
 
113 
 
 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 for 
 feiture 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 importa 
 tion 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 emancipa 
 tion. 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 li 
 berty, and every sincere wisher for the suppression of that de 
 tested 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. 
 15 
 
114 
 
 The judge of the Circuit Court at first decreed the manner, in 
 which the sixteen freemen should be drawn hy 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 ; to be delivered to the Spanish Vice Consul, toge 
 ther with the proceeds of the vessels, and with suitable deduc 
 tions for the salvage, forthwith and he reserved for further con 
 sideration, 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 ap 
 pointed judge of the District Court in the place of William Davis 
 deceased, a special court, at which the case was argued, and fur 
 ther 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 Portu 
 guese claimants in the ratio of one hundred and sixty-six on be - 
 half of the Spanish claimants, and one hundred and thirty on be 
 half 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 Decretal 
 Order of this court, in paying the expenses incurred on said ne 
 groes in the ratio above stated, and in giving bond and secu. 
 rity 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 Unit 
 ed States from so much of the said decree, of the said Circuit 
 Court as decreed the said African negroes to the Portuguese Vice 
 Consul. 
 
115 
 
 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, llth, 
 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 pro 
 gressing 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 defence 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 aggres 
 sion 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 An 
 telope 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 lot 
 tery judgment of the Circuit Court. It reversed the whole allot- 
 ment 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 Ante 
 lope. The allowances of salvage and of gratuity to Captain Jack- 
 
116 
 
 son 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 been silenced, and the cold blood 
 ed apathy to human suffering would have been stung into sensi 
 bility, which delivered up to Spanish slave traders, a vessel, for 
 feited by the just severity, and thirty-nine Africans emancipated 
 by the benignty, 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 alledge 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 them 
 selves. It contains no angry -invective, no sneering sar 
 casm, no direct defiance, on the motives of the British gov 
 ernment, and the solicitude of the British tribunals, for the sup 
 pression 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 prin 
 ciple 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 as to him was assigned 
 the duty of pronouncing the decree of the court, his argument 
 was necessarily on the side of that division which sustained the 
 decree of the Circuit Court, and consequently there is no coun 
 teracting opinion upon the records to balance it. But it almost 
 balances itself. The argument with much hesitation concludes 
 
117 
 
 that the African slave trade is not contrary to the Law of Nations 
 but it begins with admitting, also with hesitation, that it is con 
 trary to the law of nature. He says ll That it ^contrary to the 
 law of nature will scarcely be denied. That every man has a na 
 tural right to the fruits of his own labor, is generally admitted 5 
 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 
 tives. 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 prison 
 ers are slaves. Can those who have 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 
 siders 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 ; 
 
118 
 
 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, can 
 not 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 u 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 Admi 
 ralty Courts in 1820-21, 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 
 24th 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 
 Us 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 a 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 concur 
 ring in the most prompt and effectual execution of this measure, 
 fcy all the means at their disposal, and of acting in the employ 
 ment of those means with all the zeal and perseverance which is 
 due to so noble a cause." And again, 
 
119 
 
 " 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, 18 14-, Louis the 18th, on his first restora 
 tion, 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 hun 
 dred days of his authority, decreed the immediate and total aboli 
 tion of the slave-trade on the part of France which decree 
 Louis the 18th, upon his second restoration, repeated and con 
 firmed 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, pro 
 hibited 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 princi 
 ples, which they proclaimed in the Declaration of the 8th of Feb 
 ruary, 181b, and of concerting 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 
 
120 
 
 the sentiments of his Britannic Majesty with respect to the in 
 justice 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 act 
 ing in conformity with those sentiments. 
 
 And on the 23d of September, 1817, by a treaty concluded be 
 tween the same two powers, his Catholic Majesty engaged, that 
 the slave-trade should be abolished throughout the entire domi 
 nions 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 part 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 law 
 fully, 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 Ha- 
 vana, upon her slave-trading expedition, and had even been cap 
 tured by the Arraganta, before the 20th of May, 1820, and conse 
 quently before the legal prohibition had taken effect. The cap 
 ture of her by the Arraganta had been made, not for breach of 
 laws against the slave-trade, but as prize of war under a commis 
 sion from the Oriental Republic. It was her captor who had in 
 curred her forfeiture, and the liberation of the Africans taken in 
 her by the violation of the laws of the United States ngainst 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 
 
121 
 
 was smuggling in to be sold as slaves. It was the identical 
 offence against which the laws of Congress had provided, and the 
 negroes had by those laws, and by the violation of them commit 
 ted 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 exclu 
 sive 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 col 
 lateral 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 different. 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 Cap 
 tain 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, un 
 told and unidentified, to the Spanish minister. Whatever there 
 was or could be of authority in the case of the Antelope led di 
 rectly to the opposite conclusion. The Supreme Court had top- 
 16 
 
122 
 
 pled down headlong the decree of the Circuit Court for the dis 
 tribution of the victims between the Spanish and Portuguese 
 Vice Consuls by lot. They had scattered to the winds this gam 
 bling 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 j they had exacted proof of the number and 
 identification of the individuals, to be given up to the Vice Con 
 sul 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 per- 
 petual 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 unre versed was, that the Spanish prohibition of the slave 
 trade had not quickened into life quite in time to save these thir 
 ty-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 au 
 thorities in Cuba fox 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 : 
 hi possession of the cargo of the vessel, and of the Spaniards Ru 
 iz and Montes themselves. Lieut. Gedney seized them as charg 
 ed 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 en 
 slaved 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 cap- 
 
dves 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 Admi 
 ralty Courts of Great Britain have been divided on the question 
 not less than those of the United States. Sir Willian Scott, who, 
 during the war of the French Revolution, had been the main pil 
 lar 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 visi 
 tation 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 eman 
 cipated by mere contact with English soil, became re-enslavecl 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 Lonis 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 na 
 tion at peace, except against professed pirates, who are the ene 
 mies 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 Amist&d by Lieut. Gedney, were unlawful and unjustifi 
 able. I must pause before I assent to the doctrine to that extent. 
 
 lathe same case of the Louis, Sir William Scott travels out of 
 hisiecord, 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 with 
 out 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 Sta-tes. By 
 
124 
 
 the act of Congress of 2d of March, 1799, to regulate the collec 
 tion 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 Unit 
 ed 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 af 
 ter the first day of January, 1808, in any river, port, bay, or har 
 bor, 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 employ 
 ed to cruise on any part of the coast of the United States, or ter 
 ritories thereof, where he may judge attempts will be made to vi 
 olate 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 ves 
 sels, 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 sp.as, 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 opin- 
 
125 
 
 ions, and the Attorney General Grundy cites, in the case of the 
 Amistad, the opinons of Chief Justice Marshall in that of the An 
 telope, as authority for a principle which in that very opinion the 
 Chief justice declares is 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 ship 
 ment 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 he 
 unlawfully divested, nor would the foreigner he 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 na 
 ture ; that it is inhuman, cruel, odious, detestable ; but that it is 
 not contrary to the law of nations, and therefore must be acknowl 
 edged, 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 ad 
 mitted practice, by treaties, and by the general tenor of the laws 
 
126 
 
 and ordinances, and the formal transactions of civilized states : 
 and looking to these authorities, he found a difficulty in maintain 
 ing that the transaction was legally criminal." 
 
 In the Declaration of Independence the Laws of Nature are an 
 nounced 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 ', dif 
 fering 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 super 
 sede the laws of God, and justify, before the tribunals of man, the 
 most atrocious of crimes in the eyes of God. With such a prin 
 ciple 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 over 
 come 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 ac 
 cording 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 de 
 livered 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 Geor 
 gia 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 ; 
 
127 
 
 and yet was their decree, on this point, not so explicit, but that 
 one of the two judges of the Circuit Court believed that the selec 
 tion 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 Su 
 preme tribunal ; and hence arose a difference 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 Cir 
 cuit Court for the District of Georgia, to carry into execution the 
 decree of this Court, pronounced at the February term, 18'25, to 
 deliver certain Africans, in the said decree mentioned, to the Span 
 ish Consul for Spanish claimants j 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 m^fe 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 Span 
 ish 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 Por. 
 tuguese 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 Span- 
 
 ; 
 

 128 
 
 ish Vice Consul should be reduced from 166 to 93 ; and that nun> 
 her 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 cap 
 tives 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 18'25 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 regis 
 ter to take and report an account of the costs, and also of the ex 
 penses of keeping, maintaining, &c. of the Africans, by the mar 
 shal, and which account (amounting to upwards of thirty-six thou 
 sand 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 Span 
 ish claimants, as directed by the decree of 1826. 
 
 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 ex 
 penses and charges of the marshal, for maintaining, &c. the Afri 
 cans : and being of opinion that 39 of the Africans were sufficient 
 ly identified, by proof, as being the property of the Spanish claim 
 ants, 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 
 
129 
 
 of Africans delivered to the whole number. And the Circuit Court 
 was further of opinion, that the residue of the Africans not direct 
 ed 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 un 
 satisfied, 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 <4 cer 
 tified to this Court." 
 
 The United States District Attorney appealed from so much of 
 this final order of the Circuit Court as related to the apportion 
 ment 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 rela 
 tion 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 everything 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 Cir 
 cuit 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, absolute 
 ly 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 Afri 
 cans, 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 human 
 ity, or of freedom. Fifty of them, employed upon the fortifications, 
 17 
 
130 
 
 had been selected by the marshal, and recognised 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 tes 
 tified 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 freedom. The ex 
 amination 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 en 
 slave 39 human beings, otherwise entitled to freedom, evidence 
 was deemed sufficient, which, upon an ordinary question of pro 
 perty, 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 
 marked, in the opinion of the judge of the Circuit Court, in De 
 cember, 1826, as they had been in his preceding opinion, delivered 
 in 1821. 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 c6uld the court do 1 The United 
 States regard the subjects of this suit as men and not things. 
 They could not be sold, and the money lodged in 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, pre 
 cisely because they must be kept and treated, if at all, as prison- 
 
 ?! 
 
131 
 
 ers, they could not be restored entire as merchandize, nor, there 
 fore, 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 1 That the maintenance of 
 the Africans was a 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 be 
 came 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, es 
 tablished seven principles ; the first of which, in his enumeration, 
 is " That the law of nations recognized both slavery and the slave- 
 trade." 
 
 But Chief Justice Marshall, in delivering the opinion and pro 
 nouncing 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 Cotirt 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 recog 
 nized 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 combin 
 ing their decree of 1825 with the explanatory decree of 1826, the 
 two will be found to amount to this that the rights of the Span 
 iards shall be recognized 5 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 excep. 
 tion of those to be thus identified, shall be delivered over to the 
 United States. This will be doing what that Court certainly in- 
 
132 
 
 tended to do : it will make a final disposition of a most trouble 
 some 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 recog 
 nized, would seem to go fully up to the maintenance of the Span 
 ish 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 judi 
 cial tribunals of the United States. That vessel, commanded by 
 a citizen of the United States, was taken in the very act of smug 
 gling 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 rever 
 sals 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 sus 
 pended 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 Dis 
 trict Judge, which had limited the number to seven,) sixteen had 
 drawn the prize of liberty, to which the whole number were enti 
 tled 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 cir 
 cumstances 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 transpor 
 tation,, as freemen, beyond the limits of the United States, by the 
 Chief Magistrate of the Union. 
 
133 
 
 And now, by what possible process of reasoning can any decis 
 ion of the Supreme Court of the United States in the case of the 
 Antelope, be adduced as 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 pro 
 hibits 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 legal 
 ize 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 free 
 dom. 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 
 
134 
 
 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. I have avoided, pur 
 posely 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 forbid 
 den 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 liber 
 ty. 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 de 
 fence 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. 
 
135 
 
 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 be 
 half 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 
 " hie csestus, 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 Gushing 
 Chase Washington Johnson Livingston Todd Where are 
 they 1 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 1 Where is the marshal where are the criers of the 
 Court 1 Alas ! where is one of the very judges of the Court, arbi 
 ters of life and death, before whom I commenced this anxious 
 argument, even now prematurely closed 1 Where are they all 1 
 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 ap 
 proving sentence " Well done, good and faithful servant j enter 
 thou into the joy of thy Lord:" 
 
 
 
I 
 
THIS 
 
 r * n!p 
 
Syrq 
 St/ 
 
 293358 
 
 Adams, d.Q. 
 
 Argument of John 
 Quincy Adams, 
 
 Adams 
 
 Call Number: 
 
 A21 
 
 E44? 
 
 293358 
 

 
 
 
 
 
 
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