547*] imported from *Africa into Cuba might be slaves. If they are not, it is on account of some special law or decree. Has such a law been produced in the present case? The first document produced is the Treaty with England of 23d September, 1817. But that has no such effect. It promises, indeed, that Spain will take into consideration the means of preventing the slave trade, and it points out those means, so far as the trade on the coast of Africa is concerned. But it carefully limits the ascertainment of any infringement to two special tribunals; one at Sierra Leone, and the other at Havana. The next is the decree of December, 1817, which authorizes negroes, brought in against the treaty, to "be declared free." The Treaty of 28th June, 1835, which is next adduced, is confined entirely to the slave trade on the coast of Africa, or the voyage from there. Now, it is evident that none of these documents show that these negroes were free in Cuba. They had not been " declared free by any competent tribunal. Even had they been taken actually on board of a vessel engaged in the slave trade, they must have been adjudicated upon at one of the two special courts, and nowhere else. Can this court, then, undertake to decide this question of property, when it has not even been decided by the Spanish courts, and make such decision in the face of the certificate of the highest functionary of the island? It is submitted, then, that if this court does go behind the certificate of the Governor General, and look into the fact whether or not these persons were slaves on the 18th June, 1839, yet there is no sufficient evidence on which they could adjudge it to be untrue. If this be so, the proof concerning the property is sufficient to bring the case within the intention and provisions of the treaty. The next question is, did the United States legally intervene to obtain the decree of the court for the restoration of the property, in order that it might be delivered to the Spanish owners, according to the stipulations of the treaty? They did; because the property of foreigners, thus brought under the cognizance of the courts, is, of right, deliverable to the public functionaries of the government to which such foreigners belong; because those functionaries have required the interposition of the United States on their behalf; and because the United 548*] States were authorized *on that request to interpose, pursuant to their treaty obligations. That the property of foreigners, under such circumstances, may be delivered to the public functionaries, is so clearly established, by the decisions of this court, that it is unnecessary to discuss the point. In the case (2 Mason, 411. 412, 463) of La Jeune Eugenie, there was a libel of the vessel, as in this case, and a claim interposed by the French consul, and also by the owners themselves. The court there directed the delivery of the property to the public func tionary. In that of The Divina Pastora (4 Wheat., 52) the Spanish consul interposed. In that of The Antelope (10 Wheat., 68) there were claims interposed, very much as in this case, by the captain as captor, and by the vice-consuls of Spain and Portugal, for citizens of their respective countries; and by the United States. The court directed their delivery, partly to the consul of Spain, and partly to the United States. It is thus settled that the public functionaries are entitled to intervene in such cases, on behalf of the citizens of their countries. In the present one, the Spanish minister did so intervene by applying to the United States to adopt, on his behalf, the necessary proceedings; and, upon his doing so, Ruiz and Montez withdrew their separate claims. The United States, on their part, acted as the treaty required. The executive is their agent in all such transactions, and on him devolved the obligation to see this property restored entire, if due proof concerning it was made. The form of proceeding was already established by precedent and by law. The course adopted was exactly that pursued in the case of M Fadden v. The Exchange (7 Cranch, 116), where a vessel was libeled in a port of the United States. Being a public vessel of a foreign sovereign, which the government was bound to protect, they intervened exactly in the same way. The libel was dismissed, and the vessel restored to the custody of the public officers of France. It is, therefore, equally clear, that the United States, in this instance, has pursued the course required by the laws of nations; and if the court are satisfied, on the first point, that there is due proof concerning the property. then it ought to be delivered entire, so that it may be restored to the Spanish owners. If this be so, the court below has erred, because it has not decreed any part of the property to [*549 be delivered entire, except the boy Antonio. From the vessel and cargo, it has deducted the salvage, diminishing them by that amount; and the negroes it has entirely refused to direct to be delivered. Mr. Baldwin, for the defendants in error: In preparing to address this honorable 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 them-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 unfortu nate Africans, whom I represent, but it involves considerations deeply affecting our national character in the eyes of the whole civilized world, as well as questions of the power on the part of the government of the United States, which are regarded with anxiety and alarm by a large portion of our citizen. It presents, for the first time, the question whether that 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, consisently 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 position 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 favor 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 550*] 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. 1 he 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 Consitution of the United States.' The American people have never imposed it as a duty of the government of the United States to become actors in an attempt to reduce to slavery men found in a State of freedom, by giving extraterritorial 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 551* *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 legal ize the institution of slavery. It recognizes 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 juris diction of the Spanish laws, why should this government be required to become active in their restoration? They appear here as freemen. They are in the State where they are presumed to be free. They stand before our courts on equal ground with their claimants; and when the courts, after an impartial hear ing 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 the fugitive Islaves 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 (*552 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 conditions of the blacks being in this Union regulated by the municipal laws of the separate States, the gov ernment of the United States can neither guar antee their liberty in the States where they could only be received as slaves, nor control them in the States where they would be recognized 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 fulfillment. 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 in. dividuals merely. They are demanded as prop erty only, and for private purposes. It is therefore, a proper subject for the action of 64 64 this question is eloborately 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 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. & 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 have 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. How would it be independently of the The principle of amoreas manus, adopted in treaty between the United States and Spain-these cases, has no application to the case of upon the principles of our government, of the common law, or of the law of nations? Wo 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. 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 voyages 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, whose 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 accessories 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 554*] *v. Cochrane (2 Barn. & Cress., 463), 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 [*555 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 is 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 as sumed 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 ac quired 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 spe cial reference to human beings as property, who are not acknowledged as such by the law or 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 556*] 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 se cure these rights the governments are instituted." The convention which formed the Federal Constitution, though they recognized slavery as existing in regard to persons held to labor 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 ex pression recognizing 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 exist. [*557 ing, 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 recognize 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 "merchan dise," to seize and surrender fugitive slaves? The subject of the delivery of fugitives was under consideration before and during the ne gotiation of the treaty of San Lorenzo; and was purposely omitted in the treaty. (Sec. 10 Wait's State Papers, 151, 433.) Our treaties with Tunis and Algiers contain similar expres sions, in which both parties stipulate for the *protection of the property of the sub- [*558 jects of each within the jurisdiction of the oth er. 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? 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, B. II., ch. 17. The construction claimed in behalf of the Spanish libelants, 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 contract- [*560 ing 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.) 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 addi559*]tional outrage. Death *committed within the United States in resisting such violence, But even if the treaty in its terms were such would not have been murder. (Bee's Rep., as to oblige us to violate towards strangers the 290.) immutable laws of justice, it would, according The United States, as a nation, is to be re- to Vattel, impose no obligation. (Vattel, c. 1, garded as a free State. And all men being pre-9; B. II., c. 12, § 161; c. 17, § 311.) sumptively 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 as 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 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 Ghent? 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. |