The case was argued by Mr. Baldwin and Mr. Adams, for the Appellees.
Mr. Baldwin, for the defendants in error.
In preparing to address this honourable Court, on the questions arising upon this record, in behalf of the humble Africans whom I represent, -- contending, as they are, for freedom and for life, with two powerful governments arrayed against the, -- it has been to me a source of high gratification, in this unequal contest, that those questions will be heard and decided by a tribunal, not only elevated far above the influence of executive power and popular prejudice, but, from its very constitution, exempt from liability to those imputations to which a Court, less happily constituted, or composed only of members from one section of the Union, might, however unjustly, be exposed.
This case is not only one of deep interest in itself, as affecting the destiny of the unfortunate Africans, whom I represent, but it involves considerations deeply affecting out national character in the eyes of the whole civilized world, as well as questions of power on the part of the government of the United States, which are regarded with anxiety and alarm by a large portion of our citizens.It presents, for the first time, the question whether the government, which was established for the promotion of JUSTICE, which was founded on the great principles of the Revolution, as proclaimed in the Declaration of Independence, can, consistently with the genius of our institutions, become a party to proceedings for the enslavement of human beings cast upon our shores, and found in the condition of freemen within the territorial limits of a FREE AND SOVEREIGN STATE?
In the remarks I shall have occasion to make, it will be my design to appeal to no sectional prejudices, and to assume no positions in which I shall not hope to be sustained by intelligent minds from the south as well as from the north. Although I am in favour of the broadest liberty of inquiry and discussion, -- happily secured by our Constitution to every citizen, subject only to his individual responsibility to the laws for its abuse; I have ever been of the opinion that the exercise of that liberty by citizens of one state, in regard to the institutions of another, should always be guided by discretion, and tempered with kindness.
Mr. Baldwin here proceeded to state all the facts of the case, and the proceedings in the District and Circuit Courts, in support of the motion to dismiss the appeal. As no decision was given by the Court on the motion, this part of the argument is, necessarily, omitted.
Mr. Baldwin continued: If the government of the United States could appear in any case as the representative of foreigners claiming property in the Court of Admiralty, it has no right to appear in their behalf to aid them in the recovery of fugitive slaves, even when domiciled in the country from which they escaped: much less the recent victims of the African slave trade, who have sought an asylum in one of the free states of the Union, without any wrongful act on our part, or for which, as in the case of the Antelope, we are in any way responsible.
The recently imported Africans of the Amistad, if they were ever slaves, which is denied, were in the actual condition of freedom when they came within the jurisdictional limits of the state of New York. They came there without any wrongful act on the part of any officer or citizen of the United States. They were in a state where, not only no law existed to make them slaves, but where, by an express statute, all persons, except fugitives, &c., from a sister state, are declared to be free. They were under the protection of the laws of a state, which, in the language of the Supreme Court, in the case of Miln v. The City of New York, 11 Peters, 139, "has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits, as any foreign nation, when that jurisdiction is not surrendered or restrained by the Constitution of the United States."
The American people have never imposed it as a duty on the government of the United States, to become actors an attempt to reduce to slavery, men found in a state of freedom, by giving extra-territorial force to a foreign slave law. Such a duty would not only be repugnant to the feelings of a large portion of the citizens of the United States, but it would be wholly inconsistent with the fundamental principles of our government, and the purposes for which it was established, as well as with its policy in prohibiting the slave trade and giving freedom to its victims.
The recovery of slaves for their owners, whether foreign or domestic, is a matter with which the executive of the United States has no concern. The Constitution confers upon the government no power to establish or legalize the institution of slavery. It recognises it as existing in regard to persons held to service by the laws of the states which tolerate it; and contains a compact between the states, obliging them to respect the rights acquired under the slave laws of other states, in the cases specified in the Constitution. But it imposes no duty, and confers no power on the government of the United States to act in regard to it. So far as the compact extends, the Courts of the United States, whether sitting in a free state or a slave state, will give effect to it. Beyond that, all persons within the limits of a state are entitled to the protection of its laws.
If these Africans have been taken from the possession of their Spanish claimants, and wrongfully brought into the United States by our citizens, a question would have been presented similar to that which existed in the case of the Antelope. But when men have come here voluntarily, without any wrong on the part of the government or citizens of the United States, in withdrawing them from the jurisdiction of the Spanish laws, why should this government be required to become active in their restoration? They appear here freemen. They stand before out Courts on equal are presumed to be free. They stand before our Courts on equal ground with their claimants; and when the Courts, after an impartial hearing with all parties in interest before them, have pronounced them free, it is neither the duty nor the right of the executive of the United States, to interfere with the decision.
The question of the surrender of fugitive slaves to a foreign claimant, if the right exists at all, is left to the comity of the states which tolerate slavery. The government of the United States has nothing to do with it. In the letter of instructions addressed by Mr. Adams, when Secretary of State, to Messrs. Gallatin and Rush, dated November 2, 1818, in relation to a proposed arrangement with Great Britain, for a more active co-operation in the suppression of the slave trade, he assigns as a reason for rejecting the proposition for a mixed commission, "that the disposal of the negroes found on board the slave-trading vessels, which might be condemned by the sentence of the mixed Courts, cannot be carried into effect by the United States." "The condition of the blacks being in this Union regulated by the municipal laws of the separate states, the government of the United States can neither guarantee their liberty in the states where they could only be received as slaves, nor control them in the states where they would be recognised as free." Doc. 48, H. Rep. 2 sess. 16th Cong. p. 15.
It may comport with the interest or feelings of a slave state to surrender a fugitive slave to a foreigner, or at least to expel him from their borders. But the people of New England, except so far as they are bound by the compact, would cherish and protect him. To the extent of the compact we acknowledge our obligation, and have passed laws for its fulfilment. Beyond that our citizens would be unwilling to go.
A state has no power to surrender a fugitive criminal to a foreign government for punishment; because that is necessarily a matter of national concern. The fugitive is demanded for a national purpose. But the question of the surrender of fugitive slaves concerns individuals merely. They are demanded as property only, and for private purposes. It is, therefore, a proper subject for the action of the state, and not of the national authorities.
The surrender of neither is demandable of right, unless stipulated by treaty. See as to the surrender of fugitive criminals, 2 Brock. Rep. 493. 2 Sumner, 482. 14 Peters, 540. Doc. 199, H.R. 26 Cong. p. 53. 70. 10 Amer. State Pap. 151. 153. 433. 3 Hall's Law Jour. 135. An overture was once made by the government of the United States to negotiate a treaty with Great Britain for the mutual surrender of fugitive slaves. But it was instantly repelled by the british government. It may well be doubted whiether such a stipulation is within the treaty-making power under the Constitution of the United States. "The power to make treaties," says Chief Justice Taney, 14 Peters, 569, "is given in general terms, . . . and consequently it was designed to include all those subjects which in the ordinary intercourse of nations had usually been made subjects of negotiation and treaty; and which are consistent with the nature of our institutions, and the distribution of powers between the general and state governments." See Holmes v. Jennison, 14 Peters, 569. But, however this may be, the attempt to introduce it is evidence that, unless provided for by treaty, the obligation to surrender was not deemed to exist.
We deny that Ruiz and Montez, Spanish subjects, had a right to call on any officer or Court of the United States to use the force of the government, or the process of the law for the purpose of again enslaving those who have thus escaped from foreign slavery, and sought an asylum here. We deny that the seizure of these persons by Lieutenant Gedney for such a purpose was a legal or justifiable act.
How would it be -- independently of the treaty between the United States and Spain -- upon the principles of our government, of the common law, or of the law of nations?
If a foreign slave vessel, engaged in a traffic which by our laws is denounced as inhuman and piratical, should be captured by the slaves while on her voyage from Africa to Cuba, and they should succeed in reaching our shores, have the Constitution or laws of the United States imposed upon our judges, our naval officers, or our executive, the duty of seizing the unhappy fugitives and delivering them up to their oppressors? Did the people of the United States, whole government is based on the great principles of the Revolution, proclaimed in the Declaration of Independence, confer upon the federal, executive, or judicial tribunals, the power of making our nation assessories to such atrocious violations of human right?
Is there any principle of international law, or law of comity which requires it? Are our Courts bound, and if not, are they at liberty, to give effect here to the slave trade laws of a foreign nation; to laws affecting strangers, never domiciled there, when, to give them such effect would be to violate the natural rights of men?
These questions are answered in the negative by all the most approved writers on the laws of nations. 1 Burg. Confl. 741. Story, Confl. 92.
By the law of France, the slaves of their colonies, immediately on their arrival in France, become free. In the case of Forbes v. Cochrane, 2 Barn. and Cress. 463, this question is elaborately discussed and settled by the English Court of King's Bench.
By the law of the state of New York, a foreign slave escaping into that state becomes free. And the Courts of the United States, in acting upon the personal rights of men found within the jurisdiction of a free state, are bound to administer the laws as they would be administered by the state Courts, in all cases in which the laws of the state do not conflict with the laws or obligations of the United States. The United States as a nation have prohibited the slave trade as inhuman and piratical, and they have no law authorizing the enslaving of its victims. It is a maxim, to use the words of an eminent English judge, in the case of Forbes v. Cochrane, 2 Barn. and Cress., "that which is called comitas inter communitates, cannot prevail in any case, where it violates the law of our own country, the law of nature, or the law of God." 9 Eng. C.L.R. 149. And that the laws of a nation, proprio vigore, have no force beyond its own territories, except so far as it respects its own citizens, who owe it allegiance, is too familiarly settled to need the citation of authorities. See 9 Wheaton, 366. Apollon, 2 Mason, 151 -- 158. The rules on this subject adopted in the English Court of Admiralty are the same which prevail in their Courts of common law, though they hae decided in the case of The Louis, 2 Dodson, 238, as the Supreme Court did in the case of the Antelope, 10 Wheaton, 66, that as the slave trade was not, at that time, prohibited by the law of nations, if a foreign slaver was captured by an English ship, it was a wrongful act, which it would be the duty of the Court of Admiralty to repair by restoring the possession. The principle of amoveas manus, adopted in these cases, has no application to the case of fugitives from slavery.
But it is claimed that if these Africans, though "recently imported into Cuba," were by the laws of Spain the property of Ruiz and Montez, the government of the United States is bound by the treaty to restore them; and that, therefore, the intervention of the executive in these proceedings is proper for that purpose. It has already, it is believed, been shown that even if the case were within the treaty, the intervention of the executive as a party before the judicial tribunals was unnecessary and improper, since the treaty provides for its own execution by the Courts, on the application of the parties in interest. And such a resort is expressly provided in the twentieth article of the treaty of 1794 with Great Britain, and in the twenty-sixth article of the treaty of 1801 with the French Republic, both of which are in other respects similar to the ninth article of the Spanish treaty, on which the Attorney General has principally relied.
The sixth article of the Spanish treaty has received a judicial construction in the case of the Santissima Trinidad, 7 Wheaton, 284, where it was decided that the obligation assumed in simply that of protecting belligerent vessels from capture within our jurisdiction. It can have no application therefore to a case like the present.
The ninth article of that treaty provides "that all ships and merchandise of what nature soever, which shall be rescued out of the hands of pirates or robbers, on the high seas, shall be brought into some port of either state, and shall be delivered to the custody of the officers of that port, in order to be taken care of, and restored entire to the true proprietors, as soon as due and sufficient proof shall be made concerning the property thereof."
To render this clause of the treaty applicable to the case under consideration, it must be assumed that under the term "merchandise" the contracting parties intended to include slaves; and that slaves, themselves the recent victims of piracy, who, by a successful revolt, have achieved their deliverance from slavery, on the high seas, and have availed themselves of the means of escape of which they have thus acquired the possession, are to be deemed "pirates and robbers," "from whose hands" such "merchandise has been rescued."
It is believed that such a construction of the words of the treaty is not in accordance with the rules of interpretation which ought to govern our Courts; and that when there is no special reference to human beings as property, who are not acknowledged as such by the law of comity of nations generally, but only by the municipal laws of the particular nations which tolerate slavery, it cannot be presumed that the contracting parties intended to include them under the general term "merchandise." As has already been remarked, it may well be doubted whether such a stipulation would be within the treaty-making power of the United States.It is to be remembered that the government of the United States is based on the principles promulgated in the Declaration of Independence by the Congress of 1776; "that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; and that to secure these rights governments are instituted."
The convention which formed the Federal Constitution, though they recognised slavery as existing in regard to persons held to labour by the laws of the states which tolerated it, were careful to exclude from that instrument every expression that might be construed into an admission that there could be property in men. It appears by the report of the proceedings of the convention, (3 Madison Papers, 1428,) that the first clause of section 9, article 1, which provides for the imposition of a tax or duty on the importation of such persons as any of the states, then existing, might think proper to admit, &c., "not exceeding ten dollars for each person," was adopted in its present form, in consequence of the opposition by Roger Sherman and James Madison to the clause as it was originally reported, on the ground, "that it admitted that there could be property in men;" an idea which Mr. Madison said "he thought it wrong to admit in the Constitution." The words reported by the committee, and stricken out on this objection, were: "a tax or duty may be imposed on such migration or importation at a rate not exceeding the average of the duties laid upon imports." The Constitution as it now stands will be searched in vain for an expression recognising human beings as merchandise or legitimate subjects of commerce. In the case of New York v. Miln, 11 Peters, 104. 136, Judge Barbour, in giving the opinion of the Court, expressly declares, in reference to the power "to regulate commerce" conferred on Congress by the Constitution, that "persons are not the subjects of commerce." Judging from the public sentiment which prevailed at the time of the adoption of the Constitution, it is probable that the first act of the government in the exercise of its power to regulate commerce, would have been to prohibit the slave trade, if it had not been restrained until 1808, from prohibiting the importation of such persons as any of the states, then existing, should think proper to admit. But could Congress have passed an act authorizing the importation of slaves as articles of commerce, into any state in opposition to a law of the state, prohibiting their introduction? If they could, they may now force slavery into every state. For no state can prohibit the introduction of legitimate objects of foreign commerce, when authorized by Congress.
The United States must be regarded as comprehending free states as well as slave states: states which do not recognise slaves as property, as well as states which do so regard them. When all speak as a nation, general expressions ought to be construed to mean what all understand to be included in them; at all events, what may be included consistently with the law of nature.
The ninth article of the Spanish treaty was copied from the sixteenth article of the treaty with France, concluded in 1778, in the midst of the war of the Revolution, in which the great principles of liberty proclaimed in the Declaration of Independence were vindicated by our fathers.
By "merchandise rescued from pirates," the contracting parties must have had in view property, which it would be the duty of the public ships of the United States to rescue from its unlawful possessors. Because, if it is taken from those who are rightfully in possession, the capture would be wrongful, and it would be our duty to restore it. But is it a duty which our naval officers owe to a nation tolerating the slave trade, to subdue for their kidnappers the revolted victims of their cruelty? Could the people of the United States, consistently with their principles as a nation, have ever consented to a treaty stipulation which would impose such a duty on our naval officers? a duty which would drive every citizen of a free state from the service of his country? Has our government, which has been so cautious as not to oblige itself to surrender the most atrocious criminals, who have sought an asylum in the United States, bound itself, under the term "merchandise," to seize and surrender fugitive slaves?
The subject of the delivery of fugitives was under consideration before and during the negotiation of the Treaty of San Lorenzo; and was purposely omitted in the treaty. Sec. 10 Waite's State Papers, 151. 433. Our treaties with Tunis and Algiers contain similar expressions, in which both parties stipulate for the protection of the property of the subjects of each within the jurisdiction of the other. The Algerine regarded his Spanish captive as property; but was it ever supposed, that if an Algerine corsair should be seized by the captive slaves on board of her, it would be the duty of our naval officers, or our Courts of Admiralty, to recapture and restore them?
The phraseology of the entire article in the treaty, clearly shows that it was intended to apply only to inanimate things, or irrational animals; such as are universally regarded as property. It is "merchandise rescued from the hands of pirates and robbers on the high seas" that is to be restored. There is no provision for the surrender of the pirates themselves. And the reason is, because the article has reference only to those who are "hostes humani generis," whom it is lawful for, and the duty of all nations to capture and to punish. If these Africans were "pirates" or sea robbers, whom our naval officers might lawfully seize, it would be our duty to detain them for punishment; and then what would become of the "merchandise?"
But they were not pirates, nor in any sense hostes humani generis. Cinque, the master-spirit who guided them, had a single object in view. That object was -- not piracy or robbery -- but the deliverance of himself and his companions in suffering, from unlawful bondage. They owed no allegiance to Spain. They were on board of the Amistad by constraint. Their object was to free themselves from the fetters that bound them, in order that they might return to their kindred and their home. In so doing they were guilty of no crime, for which they could be held responsible as pirates. See Bee's Rep. 273. Suppose they had been impressed American seamen, who had regained their liberty in a similar manner, would they in that case have been deemed guilty of piracy and murder? Not in the opinion of Chief Justice Marshall. In his celebrated speech in justification of the surrender by President Adams of Nash under the British treaty, he says: "Had Thomas Nash been an impressed American, the homicide on board the Hermione would most certainly not have been murder. The act of impressing an American is an act of lawless violence. The confinement on board a vessel is a continuation of that violence, and an additional outrage. Death committed within the United States in resisting such violence, would not have been murder." Bee's Rep. 290.
The United States, as a nation, is to be regarded as a free state. And all men being presumptively free, when "merchandise" is spoken of in the treaty of a free state, it cannot be presumed that human beings are intended to be included as such. Hence, whenever our government have intended to speak of negroes as property, in their treaties, they have been specifically mentioned, as in the treaties with Great Britain, of 1783 and 1814. It was on the same principle, that Judge Drayton, of South Carolina, decided, in the case of Almeida, who had captured, during the last war, an English vessel with slaves, that the word "property" in the prize act, did not include negroes, and that they must be regarded as prisoners of war, and not sold or distributed merchandise. 5 Hall's Law Journal, 459.
And it was for the same reason, that it was deemed necessary in the Constitution, to insert an express stipulation in regard to fugitives from service. The law of comity would have obliged each state to protect and restore property belonging to a citizen of another, without such stipulation; but it would not have required the restoration of fugitive slaves from a sister state, unless they had been expressly mentioned.
In the interpretation of treaties we ought always to give such a construction to the words as is most consistent with the customary use of language; most suitable to the subject, and to the legitimate powers of the contracting parties; most conformable to the declared principles of the government; such a construction as will not lead to injustice to others, or in any way violate the laws of nature.
These are, in substance, the rules of interpretation as given by Vattel, v. ii. ch. 17. The construction claimed in behalf of the Spanish libellants, in the present case, is at war with them all.
It would be singular, indeed, if the tribunals of a government which has declared the slave-trade piracy, and has bound itself by a solemn treaty with Great Britain, in 1814, to make continued efforts "to promote its entire abolition, as a traffic irreconcilable with the principles of humanity and justice," should construe the general expressions of a treaty which since that period has been revised by the contracting parties, as obliging this nation to commit the injustice of treating as property the recent victims of this horrid traffic; more especially when it is borne in mind, that the government of Spain, anterior to the revision of the treaty in 1819, had formally notified our government that Africans were no longer the legitimate objects of trade; with a declaration that "His majesty felt confident that a measure so completely in harmony with the sentiments of this government, and of all the inhabitants of this republic, could not fail to be equally agreeable to the President." Doc. 48. 2 sess. 16 Cong. p. 8.
Would the people of the United States, in 1819, have assented to such a treaty? Would it not have furnished just ground of complaint by Great Britain, as a violation of the 10th article of the treaty of Ghant?
But even if the treaty in its terms were such as to oblige us to violate towards strangers the immutable laws of justice, it would, according of Vattel, impose no obligation. Vattel, c. 1, @ 9; b. ii. c. 12, @ 161; c. 17, @ 311.
The law of nature and the law of nations, bind us as effectually to render justice to the African, as the treaty can to the Spaniard. Before a foreign tribunal, the parties litigating the question of freedom or slavery, stand on equal ground. And in a case like this, where it is admitted that the Africans were recently imported, and consequently never domiciled in Cuba, and owe no allegiance to its laws, their rights are to be determined by that law which is of universal obligation -- the law of nature.
If, indeed, the vessel in which they sailed had been driven upon our coast by stress of weather or other unavoidable cause, and they had arrived here in the actual possession of their alleged owners, and had been slaves by the law of the country from which they sailed, and where they were domiciled, it would have been a very different question, whether the Courts of the United States could interfere to liberate them, as was done at Bermuda by the colonial tribunal, in the case of the Enterprise.
But in this case there has been no possession of these Africans by their claimants within our jurisdiction, of which they have been deprived, by the act of our government or its officers; and neither by the law of comity, or by force of the treaty, are the officers or Courts of the United States required, or by the principles of our government permitted to become actors in reducing them to slavery.
These preliminary questions have been made on account of the important principles involved in them, and not from any unwillingness to meet the question between the Africans and their claimants upon the facts in evidence, and on those alone, to vindicate their claims to freedom.
Suppose, then, the case to be properly here: and that Ruiz and Montez, unprejudiced by the decree of the Court below, were at liberty to take issue with the Africans upon their answer, and to call upon this Court to determine the question of liberty or property, how stands the case on the evidence before the Court?
The Africans, when found by Lieutenant Gedney, were in a free state, where all men are presumed to be free, and were in the actual condition of freemen. The burden of proof, therefore, rests on those who assert them to be slaves. 10 Wheaton, 66. 2 Mason, 459. When they call on the Courts of the United States to reduce to slavery men who are apparently free, they must show some law, having force in the place where they were taken, which makes them slaves, or that the claimants are entitled in our Courts to have some foreign law, obligatory on the Africans as well as on the claimants, enforced in respect to them; and that by such foreign law they are slaves.
It is not pretended that there was any law existing in the place where they were found, which made them slaves, but it is claimed that by the laws of Cuba they were slaves to Ruiz and Montez; and that those laws are to be here enforced. But before the laws of Cuba, if any such there be, can be applied to affect the personal status of individuals within a foreign jurisdiction, it is very clear that it must be shown that they were domiciled in Cuba.
It is admitted and proved in this case that these negroes are natives of Africa, and recently imported into Cuba. Their domicil of origin is consequently the place of their birth in Africa. And the presumption of law is, always, that the domicil of origin, is retained until the change is proved. 1 Burge's Conflict. 34. The burden of proving the change is cast on him who alleges it. 5 Vesey, 787.
The domicil of origin prevails until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicil, and acquiring another, as his sole domicil. As it is the will or intention of the party which alone determines what is the real place of domicil which he has chosen, it follows that a former demicil is not abandoned by residence in another, if that residence be not voluntarily chosen. Those who are in exile, or in prison, as they are never presumed to have abandoned all hope of return, retain their former domicil. 1 Burg. 46. That these victims of fraud and piracy -- husbands torn from their wives and families -- children from their parents and kindred -- neither intended to abandon the land of their nativity, nor had lost all hope of recovering it, sufficiently appears from the facts on this record. It cannot, surely, be claimed that a residence, under such circumstances, of these helpless beings for ten days in a slave barracoon, before they were transferred to the Amistad, changed their native domicil for that of Cuba.
It is not only incumbent on the claimants to prove that the Africans are domiciled in Cuba, and subject to its laws, but they must show that some law existed there by which "recently imported Africans" can be lawfully held in slavery.Such a law is not to be presumed, but the contrary. Comity would seem to require of us to presume that a traffic so abhorrent to the feelings of the whole civilized world is not lawful in Cuba.These respondents having been born free, and having been recently imported into Cuba, have a right to be every where regarded as free, until some law obligatory on them is produced authorizing their enslavement. Neither the law of nature nor the law of nations authorizes the slave-trade; although it was holden in the case of the Antelope, that the law of nations did not at that time actually prohibit it. If they are slaves, then, it must be by some positive law of Spain, existing at the time of their recent importation. No such law is exhibited. On the contrary, it is proved by the deposition of Dr. Madden, one of the British commissioners resident at Havana, that since the year 1820, there has been no such law in force there, either statute or common law.
But we do not rest the case here. We are willing to assume the burden of proof. On the 14th of May, 1818, the Spanish government, by their minister, announced to the government of the United States that the slave-trade was prohibited by Spain; and by express command of the King of Spain, Don Onis communicated to the President of the United States the treaty with Great Britain of September 23d, 1817, by which the King of Spain, moved partly by motives of humanity, and partly in consideration of four hundred thousand pounds sterling, paid to him by the British government for the accomplishment of so desirable an object, engaged that the slave-trade should be abolished throughout the dominions of Spain, on the 30th May, 1820. By the ordinance of the King of Spain of December, 1817, it is directed that every African imported into any of the colonies of Spain in violation of the treaty, shall be declared free in the first port at which he shall arrive.
By the treaty between Great Britain and Spain of the 28th of June, 1835, which is declared to be made for the purpose of "rendering the means taken for abolishing the inhuman traffic in slaves more effective," and to be in the spirit of the treaty contracted between both powers on the 23d of September, 1817, "the slave-trade is again declared on the part of Spain to be henceforward totally and finally abolished, in all parts of the world." And by the royal ordinance of November 2d, 1838, the Governor and the naval officers having command on the coast of Cuba, are stimulated to greater vigilance to suppress it.
Such, then, being the laws in force in all the dominions of Spain, and such the conceded facts in regard to the nativity and recent importation of these Africans, upon what plausible ground can it be claimed by the government of the United States, that they were slaves in the island of Cuba, and are here to be treated as property, and not as human beings?
The only evidence exhibited to prove them slaves, are the papers of the Amistad, giving to Jose Ruiz permission to transport forty-nine Ladinos belonging to him, from Havana to Puerto Principe; and a like permit to Pedro Montez, to transport three Ladinos. For one of the four Africans, claimed by Montez, (the boy Ka-le,) there is no permit at all.
It has been said in an official opinion by the late Attorney General, (Mr. Grundy,) that "as this vessel cleared out from one Spanish port to another Spanish port, with papers regularly authenticated by the proper officers at Havana, evidencing that these negroes were slaves, and that the destination of the vessel was to another Spanish port, the government of the United States would not be authorized to go into an investigation for the purpose of ascertaining whether the facts stated in those papers by the Spanish officers are true or not;" -- "that if it were to permit itself to go behind the papers of the schooner Amistad, it would place itself in the embarrassing condition of judging upon Spanish laws, their force, effect, and application to the case under consideration." In support of this opinion, a reference is made to the opinion of this Court, in the case of Arredozdo, 6 Pet. 729, where it is stated to be "a universal principle, that where power or jurisdiction is delegated to any public officer or tribunal over a subject-matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject-matter; and individual rights will not be disturbed collaterally for any thing done in the exercise of that discretion within the authority conferred. The only questions which can arise between an individual claiming a right under the acts done, and the public, or any person denying its validity, are power in the officer, and fraud in the party."
The principle thus stated, was applicable to the case then before the Court, which related to the validity of a grant made by a public officer; but it does not tend to support the position for which it is cited in the present case. For, in the first place, there was no jurisdiction over these newly imported Africans, by the laws of Spain, to make them slaves, any more than if they had been white men. The ordinance of the king declared them free. Secondly, there was no intentional exercise of jurisdiction over them for such a purpose, by the officer who granted the permits; and, thirdly, the permits were fraudulently obtained, and fraudulently used by the parties claiming to take benefit of them. For the purposes for which they are attempted to be applied, the permits are as inoperative as would be a grant from a public officer, fraudulently obtained, where the state had no title to the thing granted, and the officer no authority to issue the grant. See 6 Peters, 730. 5 Wheat. 303.
But it is said, we have no right to place ourselves in the position of judging upon the Spanish laws. How can our Courts do otherwise, when Spanish subjects call upon them to enforce rights which, if they exist at all, must exist by force of Spanish laws? For what purpose did the government of Spain communicate to the government of the United States, the fact of the prohibition of the slave-trade, unless it was that it might be known and acted upon by our Courts? Suppose the permits to Ruiz and Montez had been granted for the express purpose of consigning to perpetual slavery, these recent victims of this prohibited trade, could the government of Spain now ask the government or the Courts of the United States, to give validity to the acts of a colonial officer, in direct violation of that prohibition; and thus make us aiders and abettors in what we know to be an atrocious wrong?
It may be admitted that, even after such an annunciation, our cruisers could not lawfully seize a Spanish slaver, cleared out as such by the Governor of Cuba: but if the Africans on board of her could effect their own deliverance, and reach our shores, has not the government of Spain authorized us to treat them with hospitality as freemen? Could the Spanish minister, without offence, ask the government of the United States to seize these victims of fraud and felony, and treat them as property, because a colonial governor had thought proper to violate the ordinance of his king, in granting a permit to a slaver?
But in this case we make no charge upon the Governor of Cuba. A fraud upon him is proved to have been practised by Ruiz and Montez. He never undertook to assume jurisdiction over these Africans as slaves, or to decide any question in regard to them. He simply issued, on the application of Ruiz and Montez, passports for Ladino slaves from Havana to Puerto Principe. When under colour of those passports, they fraudulently put on board the Amistad, Bozals, who by the laws of Spain could not be slaves, we surely manifest no disrespect to the acts of the Governor, by giving efficacy to the laws of Spain, and denying to Ruiz and Montez the benefit of their fraud. The custom house license, to which the name of Espeleta in print was appended, was not a document given or intended to be used as evidence of property between Ruiz and Montez, and the Africans; any more than a permit from our customhouse would be to settle conflicting claims of ownership to the articles contained in the manifest. As between the government and the shippers, it would be evidence if the negroes described in the passport were actually put on board, and were, in truth, the property of Ruiz and Montez, that they were legally shipped; that the customhouse forms had been complied with; and nothing more.But in view of facts as they appear, and are admitted in the present case, the passports seem to have been obtained by Ruiz and Montez, only as a part of the necessary machinery for the completion of a slave voyage. The evidence tends strongly to prove that Ruiz, at least, was concerned in the importation of these Africans, and that the reshipment of them under colour of passports obtained for Ladinos, as the property of Ruiz and Montez, in connection with the false representation on the papers of the schooner, that they were "passengers for the government," was an artifice resorted to by these slave-traders, for the double purpose of evading the scrutiny of British cruisers, and legalizing the transfer of their victims to the place of their ultimate destination. It is a remarkable circumstance, that though more than a year has elapsed, since the decree of the District Court denying the title of Ruiz and Montez, and pronouncing the Africans free, not a particle of evidence has since been produced in support of their claims. And yet, strange as it may seem, during all this time, not only the sympathies of the Spanish minister, but the powerful aid of our own government have been enlisted in their behalf!
It was the purpose of the Reporter to insert the able and interesting argument of Mr. Adams, for the African appellees; and the publication of the "Reports" has been postponed in the hope of obtaining it, prepared by himself. It has not been received. As many of the points presented by Mr. Adams, in the discussion of the cause, were not considered by the Court essential to its decision: and were not taken notice of in the opinion of the Court, delivered by Mr. Justice STORY, the necessary omission of the argument is submitted to with less regret.