Argument of 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.

The Africans, who certainly had the prima facie title to the property, did not bring the vessel into our waters themselves, but were brought here against their will, by the two Spaniards, by stratagem and deception. Now, if this court should consider, as the courts below have done, that the original voyage from Lomboko, in Africa, was continued by the Spaniards in the Amistad, and that pursuing that voyage was a violation of the laws of the United States, then the Spaniards are responsible for that offense. The deed begun in Africa was not consummated according to its original intention, until the Negroes were landed at their port of final destination in Porto Principe. The clandestine landing in Havana, the unlawful sale in the barracoons, the shipment on board the Amistad, were all parts of the original transaction. And it was in pursuit of that original unlawful intent that the Spaniards brought the vessel by stratagem into a port of the United States. Does the treaty apply to such voyages ? Suppose the owner had been on board, and his voyage lawful, what does the treaty secure to him? Why, that he might repair his ship, and purchase refreshments, and continue his voyage. Ruiz and Montes could not continue the voyage. But, suppose the article applicable, and what were the United States to do ? They must place those on board the ship in the situation they were in when taken, that is, the Africans in possession, with the two Spaniards as their prisoners, or their slaves, as the case might be; the Negroes as masters of the ship, to continue their voyage, which on their part was certainly lawful.

If any part of the article was applicable to the case it was in favor of the Africans. They were in distress, and were brought into our waters by their enemies' by those who sought, and who are still' seeking, to reduce them from freedom to slavery, as a reward for having spared their lives in the fight. If the good offices of the government are to be rendered to the proprietors of shipping in distress, they are due to the Africans only, and the United States are now bound to restore the ship to the Africans, and replace the Spaniards on board as prisoners. But the article is not applicable at all. It is not a casus federis. The parties to the treaty never could have had any such case in view.. The transaction on board of the vessel after leaving Havana entirely changed the circumstances of the parties, and conferred rights on my most unfortunate clients, which cannot but be regarded by this honorable court.

Next we have article 9:

ART. 9. All ships and merchandise, of what nature so ever, which shall be rescued out of the hands of any pirates or robbers on the high seas, shall be brought into some port of either state, and shall be delivered to the custody of the officers of that port, in order to be taken care of, and restored entire to the true proprietor, as soon as due and sufficient proof shall be made concerning the property thereof."

Was this ship rescued out of the hands of pirates and robbers? Is this Court competent to declare it ? The Courts below have decided that they have no authority to try, criminally, what happened on board the vessel. They have then no right to regard those who forcibly took possession of the vessel as pirates and robbers. If the sympathies of Lieutenant Gedney, which the Secretary of State says had become national, had been felt for all the parties, in due proportion to their sufferings and their deserts, who were the pirates and robbers, Were they the Africans? When they were brought from Lomboko? in the Tecora, against the laws of Spain, against the laws of the United States, and against the law of nations, so far as the United States, and Spain, and Great Britain, are concerned, who were the robbers and pirates? And when the same voyage, in fact, was continued in the Amistad, and the Africans were in a perishing condition in the hands of Ruiz, dropping dead from day to day under his treatment, were they the pirates and robbers ? This honorable Court will observe from the record that there were fiftty-four Africans who
left the Havana. Ruiz says in his libel that nine had died before they reached our shores. The marshal's return shows that they were dying day after day from the effects of their sufferings. One died before the Court sat at New London. Three more died before the return was made to the Court at Hartford—only seventeen
days—and three more between that and November. Sixteen fell victims before November, and from that time not one has died. Think only of the relief and benefit of being restored to the absolute wants of human nature. Although placed in a condition which, if applied to forty citizens of the United States, we should call cruel, shut up eighteen months in a prison, and enjoying only the tenderness which our laws provide for the worst of criminals, so great is the improvement of their condition from what it was in the hands of Ruiz, that they have perfectly recovered their health, and not one has died; when, before that time, they were perishing from hour to hour.

At the great day of accounts, may it please the Court, who is to be responsible for those sixteen souls that died I Ruiz claims those sixteen as his property, as merchandise. How many of them, at his last hour, will pass before him and say, " Let me sit heavy on thy soul tomorrow!"

Who, then, are the tyrants and oppressors against whom our laws are invoked? Who are the innocent sufferers, for whom we are called upon to protect this ship against enemies and robbers Certainly not Ruiz and Montes.

But, independently of this consideration, the article cannot apt ply to slaves. It says ships and merchandise. Is that language applicable to human beings? Will this Court so affirm? It says they shall be restored entire. Is it a treaty between cannibal nations, that a stipulation is needed for the restoration of merchandise entire, to prevent parties from cutting off the legs and arms of human beings before they are delivered up? The very word entire in the stipulation is of itself a sufficient exclusion of human beings from the scope of the article. But if it was intended to embrace human beings, the article would have included a provision for their subsistence until they are restored, and an indemnification for their maintenance to the officers who are charged with the execution of the stipulation. And there is perhaps needed a provision with regard to the institutions of the free states, to prevent a difficulty in keeping human beings in the custom house, without having them liable to the operation of the local law, the habeas corpus, and the rights of freedom.

But with regard to article 9, I will speak of my own knowledge, for it happened that on the renewal of the treaty in 1819, the whole of the negotiations with the then minister of Spain passed through my hands, and I am certain that neither of us ever entertained an idea that this word merchandise was to apply to human beings.

Mr. Calderon also quotes article 10.

This article, again, has nothing to do with the case. The Amistad was neither wrecked nor foundered, nor otherwise damaged. She came into our waters voluntarily, so far as the Spaniards were concerned, but involuntarily, so far as concerned the Africans, who were in possession of the vessel. They were intentionally prosecuting a voyage to Africa, but were brought to our shores by deception, and against their wills. This is not casus federis. The treaty has no application here. But if, by any latitude of construction, it could be applied, its benefits belong to the Africans, for they were pursuing a lawful voyage, and not to the Spaniards, who were on an unlawful voyage, in the prosecution of the slave trade.

But the article says the same assistance shall be afforded that our own citizens would be entitled to receive in like circumstances. Let us apply the rule. Suppose the Amistad had been a vessel of the United States, owned and manned by citizens of the United States, and in like circumstances. Say it was a Baltimore clipper, fitted for the African slave trade, and having performed a voyage, had come back to our shores, directly or indirectly, with fiftyfour African victims on board, and was thus brought into port—what would be the assistance guarantied by our laws to American citizens, in such circumstances? The captain would be seized, tried as a pirate, and hung! And every person concerned, either as owners or on board the ship, would be severely punished. The law makes it a capital offense for the captain, and no appeal to this Court would save him from the gibbet. Is that the assistance which the Spanish minister invokes for Ruiz and Montes ? That is what our laws would secure to our own citizens in like circumstances. And perhaps it would be a reward nearer their merits than the restoration of these poor Negroes to them, or enabling them to complete their voyage.

But my clients are claimed under the treaty as merchandise, rescued from pirates and robbers. Who were the merchandise, and who were the robbers? According to the construction of the Spanish minister, the merchandise were the robbers, and the robbers were the merchandise. The merchandise was rescued out of its own hands, and the robbers were rescued out of the hands of the robbers. Is this the meaning of the treaty ? Will this Court adopt a rule of construction in regard to solemn treaties that will sanction such conclusions, There is a rule in Vattel that no construction shall be allowed to a treaty which makes it absurd. Is any thing more absurd than to say these forty Africans are robbers, out of whose hands they have themselves been rescued? Can a greater absurdity be imagined in construction than this, which applies the double character of robbers and of merchandise to human beings ?

May it please your Honors, there is not one article of the treaty that has the slightest application to this case, and the Spanish minister has no more ground for appealing to the treaty, as a warrant for his demand, than he has for relying on the law of nations.

The next argument that follows is so peculiar that I find it difficult to give a distinct idea of its purpose or application. He says,

"The crime in question is one of those which, if permitted to pass unpunished, would endanger the internal tranquillity and the safety of the island of Cuba, where citizens of the United States not only carry on a considerable trade, but where they possess territorial properties which they cultivate with the labor of African slaves. These, on learning that the crime alluded to had been committed with impunity, (and their friends would not fail to acquaint them with the fact) would lose none of the opportunities for attempting revolt and evasion, which are afforded by the frequent and daily necessity of conveying Negroes by sea from one quarter of the island to another; and to guard against this it would be necessary to use additional precautions at a great expense."

I believe, may it please the Court, that this is not a good argument before this court to determine questions of law and justice by the consideration that there are American citizens who own plantations in the island of Cuba, which they cultivate by the labor of slaves. They own their plantations and slaves there, subject to the laws of Spain, which laws declare the African slave trade to be felony. The Spanish minister has no right to appeal to our courts to pass a particular sentence between parties in a suit, by considerations of their personal interest, or that of other American citizens in the Island of Cuba. What would become of the liberties of this nation if our courts are to pass sentence between parties, upon considerations of the effect it may have upon the interest of American citizens, scattered as they may be in all parts of the world? If it is a valid consideration when applied to Cuba and the American owners of sugar estates and slaves there, it applies equally to all other countries where American citizens may have property; to China, Hindostan, or the Feejee Islands. It was no proper argument for the Spanish minister to urge upon the American Secretary of State. It was undoubtedly calculated and designed to influence his sympathy in the case—that sympathy with one of the parties which he says had become national It was calculated to excite and to influence the Secretary of State not only by the effect to be produced in the island of Cuba, but perhaps also by a reward to certain interests nearer home. But was that JUSTICE? Was that a ground on which courts of justice will decide cases ? I t rust not.

There are a few portions of this letter, which I had rather your Honors would read when you are together in consultation, than to read them myself in this place. I will not trust myself to comment upon them as they deserve. I trust that your Honors, in the pursuit of JUSTICE, will read them, as the document will be in your hands, and you will see why I abstain from doing it. Mr. Calderon proceeds to say,

"If, on the other hand, they should be condemned by the incompetent tribunal that has taken upon itself to try them as pirates and assassins, the infliction of capital punishment in this case would not be attended with the salutary effects had in view by the law when it resorts to this painful and terrible alternative, namely, to prevent the commission of similar offenses. In such case, the indemnification I officially ask for the owners would be n very slender compensation; for, if the property remained unimpaired, as it would remain, the satisfaction due to the public would not be accorded."

And that is a reason why the President of the United States was to issue his lettrede cachet, and send these unfortunate individuals to Cuba. I abstain now from reading the subsequent passages. He concluded by saying,

"In the islands above mentioned the citizens of the United States have always met with a favorable reception and kind treatment. The Spanish Government, for the protection of their property, would immediately accord the extradition of any slaves that might take refuge there from the southern states. Being itself exact in the observance of treaties, it claims the more justly the execution of them, and a reciprocal good correspondence, from a nation, the ally and neighbor of Spain, to whom so many proofs have been afforded of the high degree in which her friendship is esteemed."

They will readily yield fugitive slaves! Was this an argument, I ask the honorable Court, to be addressed to the Secretary of State? Is it upon these principles that cases are to be decided? Is it by these considerations that the action of governments? to be determined? Shall these men be given up on the offer of an equivalent ? " If you will deliver these Africans to me, for whose blood all the slavetraders of Cuba thirst, and any slave from the south shall make his escape and came to Cuba, we will readily deliver him up." What is this argument as addressed to the Secretary of State I It may be a very easy thing for the Governor at Havana to seize a fugitive southern slave, or a pretended fugitive, as the case may be, and put him on board a vessel and send him to one of our Southern states. The learned Attorney General, I think, read some authorities to show that this Governor has royal powers, about equal to those of the King, and it may be easy for him to seize any man, black or white, slave or free, who may be claimed as a slave, and send him beyond seas for any purpose. But, has the President of the United States any such powers Can the American Executive do such things? If he is to do them, I should hope, at least, that it might be under treaty stipulations rather more adapted to the object than these. It was going quite far enough, I should think, to require the President of the U. S. to keep these men safely, and send them back at the expense of this nation, without making this—what shall I call it? I will not undertake to qualify it in words—this offer to send back the fugitive slaves of the South as an equivalent, provided the President will consent to deliver up these MEN, by a despotic act, to satiate the vengeance of the slavetraders at Havana.

I have now, may it please the Court, examined at great length, and with tedious detail, the letter of the Spanish minister demanding the interposition of the national Executive to restore these unfortunate Africans to the island of Cuba. And now I may in. quire of your Honors, what, in your opinion, was the duty of the Secretary of State, on receiving such a letter. And in the first place, what did he do ?

His first act was, to misrepresent the demand, and to write to the District Attorney in Connecticut, directing him to pursue a claim for the possession of these people on behalf of the United States, on the ground that the Spanish minister had demanded their delivery to him, as the property of Spanish subjects, and ordering him to take care that no court should place them beyond the control of the Executive. That is what he did. And the consequence is the case now before the court. The Attorney of the United States pursued his orders. He stated, in his claim before the District Court, that the Spanish minister had demanded their restoration as property; and then' as if conscious that this claim might not secure the other purpose, of keeping them at all events within the control of the Executive, he added, of his own head, (for it does not appear that he had any instructions on this point,) a second count, claiming, on behalf of the United States, that if the court should find they were not slaves by the laws of Spain, but that they were brought to our shores in violation of the act of Congress for the suppression of the slave trade, then they should be placed at the disposal of the President, to be sent to Africa, according to the provisions of that act. This count was undoubtedly added in consequence of the order not to let them be placed beyond the control of the Executive. In a subsequent term of the court, he filed a new libel, in which this alternative demand was omitted. Why was that done ? I can conceive no other reason than that he had received such instructions from the Executive.

Those instructions do not appear among the printed documents but it does not follow that none were given, for the communication of the President, in answer to the call of the House of Representatives, was not a full one, as I know of my own knowledge. The demand was for all information not incompatible with the public interest, and under that proviso many things were kept back. But there can be no doubt that it was for the purpose of complying with the first order of the District Attorney inserted in the second count, and that it was by the instructions of the department he afterward withdrew it.

[Mr. Baldwin. The count was not withdrawn. A new libel was entered, having only one count, but the first libel was not withdrawn.] Very well—it amounts to this: that the Executive did not choose to hold itself responsible for that construction of the act of Congress. This appears from the appeal. What have the United States appealed from? Why, from n decree of the court, giving them precisely what they had claimed by the District Attorney. The Attorney knew that the libel grounded on the demand of the Spanish minister, (ostensibly, for I have shown that it was a falsification of the terms of that demand by the Secretary of State,) was not sufficient to place the Africans beyond the control of the Executive, in a certain alternative, and therefore he calls upon the Court to put them in the hands of the President, to be sent to Africa—that is, to complete their own voyage.

Well, the District Court investigated the case, and dissipated entirely the pretension that these Africans could be claimed in any way as merchandise. They went the length of declaring that the only lading on board, the boy Antonio, concerning whom there was the slightest pretext of a claim that he was a slave, should be delivered up to the Spanish consul, on behalf of the representatives of his late owner, Captain Ferrer. The United States do not appeal from that decision, and there has been no appeal, although we might have appealed with propriety. And I confess that, had I been of counsel in that stage of the proceedings, 1 should have been much disposed to appeal, on the ground that there was no article of the treaty which has any thing to do with the case. I conceive that this part of the decree of the District Court is not warranted by any law or treaty whatever.

But I do not desire to argue that question now, for I perceive that the district judge, in giving his decision, places it partly on the ground that the boy is desirous of returning. And as volenti non fit injuria, I reconcile my mind to that part of the decision, for we could certainly have no possible motive to interfere with the wishes of the boy. If he really has the desire to return to slavery in Cuba, it would be far from my desire to interfere with his wishes, however strange and unnatural I might deem them to be. But 1 must, at the same time, as an individual, protest against his delivery by any compulsion, or on any ground of obligation in the treaty; for I must maintain, that there is no one of the articles in the treaty cited that has any application whatever to the ease.

And now, may it please your Honors, so strange and singular is every thing that happens, connected with this most singular case, I am informed that, after all, this boy has not been sent to Cuba, notwithstanding his anxiety to go, and the desire of the Spanish consul for his restoration, with a decree of the Court agreeable to his demand. I am informed that he has remained a whole year in prison with the Africans, and is, at this moment, in the custody of the marshal, by what warrant or process I know not, or at whose expense.

The reason for this extended analysis of the demand by the Spanish minister is, that we may be prepared to inquire what answer he ought to have received from the American Secretary. I aver, that it was the duty of the Secretary of State instantly to answer the letter, by showing the Spanish minister that all his de. minds were utterly inadmissible, and that the government of the United States could do nothing of what he required. It could not deliver the ship to the owner, and there was no duty resting on the United States to dispose of the vessel in any such manner. And as to the demand that no salvage should be taken, the Spanish minister should have been told that it was a question depending exclusively on the determination of the courts, before whom the case was pending for trial according to law. And the Secretary aught to have shown Mr. Calderon, that the demand for a proclamation by the President of the United States, against the jurisdiction of the courts, was not only inadmissible but offensive —it was demanding what the Executive could not do, by the constitution. It would be the assumption of a control over the judiciary by the President, which would overthrow the whole fabric of the constitution; it would violate the principles of our government generally and in every particular; it would be against the rights of the Negroes, of the citizens, and of the States.

The Secretary ought to have done this at once, without waiting to consult the President, who was then absent from the city. The claim that the negroes should be delivered was equally inadmissible with the rest; the President has no power to arrest either citizens or foreigners. But even that power is almost insignificant compared with that of sending men beyond seas to deliver them up to a foreign government. The Secretary should have called upon the Spanish ambassador to name an instance where such a demand had been made by any government of another government that was independent. He should have told him, that such a demand was treating the President of the United States, not as the head of a nation, but as a constable, a catch pole—a character that it is not possible to express in gentlemanly language. That i8 what this demand makes of the President of the United States.

The Secretary should also have set the Spanish Minister right with regard to the authorities before whom the question was pending. He should have told him that they were not the authorities of the state of Connecticut but of the United States, the courts of the Union in the state of Connecticut. He should have corrected this mistake of the minister at the beginning. It was a real misapprehension, which has continued through the whole proceeding to the present time, and it ought to have been corrected at first. And what is still more remarkable, the same mistake of calling it the court of Connecticut was made by Mr. Forsyth himself long after.

But what did the Secretary do in fact? He barely replies to Mr. Calderon, that he had sent his letter to the President for his consideration, and that "no time will be needlessly lost, after his decision upon the demand it prefers shall have reached me, in communicating to you his views upon the subject."

And now, from that day to this, the Secretary of State has never answered one of these demands, nor arrested one of these misapprehensions, nor asserted the rights and the honor of the nation against one of these most extraordinary, inadmissible, and insolent demands. He has degraded the country, in the face of the whole civilized world, not only by allowing these demands to remain unanswered, but by proceeding, I am obliged to say, throughout the whole transaction, as if the Executive were earnestly desirous to comply with every one of the demands. In the very misrepresentations of those demands, in his instructions to the District Attorney, under which this case is brought here, why does he take such a course? The Spanish Minister pronounced the Court before which the Secretary brought the question, an incompetent tribunal—and this position has been maintained by the Legation of Spain down to this very month, that a letter of Chevalier d'Argaiz officially protests against the jurisdiction of the courts before which the Secretary professes to be prosecuting the claim of this very minister!

Why does the Spanish Minister persist in such inadmissible pretensions? It is because they were not met in limine in a proper manner—because he was not told instantly, without the delay of an hour, that this Government could never admit much claims, and would be offended if they were repeated, or any portion of them. Yet all these claims, monstrous, absurd and inadmissible as they are, have been urged and repeated for eighteen months, upon our Government, and an American Secretary of State evades answering any of them—evades it to such an extent that the Spanish Minister reproaches him for not meeting his arguments.

The demand of Mr. Calderon was dated September 6. The order of the Secretary to the District Attorney, in regard to the suit, was dated September 11, in which he says that ''a communication has been addressed to this department by the Minister of Her Catholic Majesty, CLAIMING TEE VESSEL, CARGO, AND BLACKS ON BOARD, As SPANISH PROPERTY, and demanding its immediate release." On the 23d of September, the Secretary writes to the Spanish Minister as follows:

Here the Secretary reiterates the error of the Spanish minister, instead of correcting it, with regard to the character of the Court before which the case was pending. The Secretary of State calls the United States District for Connecticut "a District Court of Connecticut." The Spanish Minister could not be expected to acquire a correct understanding of the case, unless he was informed, but here he has his error confirmed.

The Secretary further requests the ambassador, if he has any farther documents, " that you will communicate them to me." What had he to do with this evidence? The Spanish minister had made a certain demand upon the government of the United States. Whether it was what it appears to be, or whether it was what the Secretary represented it to be in his orders to the District Attorney, it was no part of the business of the American Secretary of State to look after the evidence. Still, if he had requested the minister to communicate the evidence to the Court, it might not have been exactly improper, but only officious. If the Spanish Minister chose to go into our courts in support of the private claims of Spanish subjects, he could do it, and it was his business to bring forward the proper evidence in support of his claim. Why, then, does the Secretary call upon him to furnish these documents to the Executive Department? Your Honors will judge whether this letter is or is not evidence of a determination then existing on the part of the Executive, to decide this case independently of the judiciary, and ex parte.

Mr. Calderon replies that he has no other evidence to furnish. The next document is the letter of his successor, the Chevalier d'Argaiz:

Here we see the same unfortunate misapprehension continued. The new Spanish minister calls upon the Secretary of State to put the "Court of New London" into speedy action, to lessen the danger of loss to the proprietors by delay, and the Secretary of State takes no pains to correct the error.

On the 24th of October, the Secretary of State wrote again to Mr. Argaiz, on another subject, which is not now before this Court,—the arrest of Ruiz and Montes, at the suit of some of the Africans, in the courts of the State of New York. Mr. Argaiz protested against the arrest, and claims "the interposition of the Executive in procuring their liberation, and indemnity for the losses and injury they may have sustained. To that the Secretary replies:

There is a complete answer to all these demands of the Spanish legation. "The constitution and laws have secured the judicial power against All interference of the Executive authority." That is very true. The laws of the state of New York, of which the constitution and laws of the United States and their: treaties with foreign powers form a part, afford to Messrs. Ruiz and Montes all the necessary: means for the security of their rights, and therefore "render unnecessary any agency on the part of" the Executive. That is very correct. There is a perfect answer, worthy of an American statesman But is that all? No. The Secretary finds, after all these disclaimers, one Executive power yet in reserve, which may be put forth to take part against poor Africans, and at least afford evidence of the national sympathy. The Secretary says:

Because the case "connects itself with another occurrence." What is all this? The independence of the judiciary is first firmly and bravely sustained. It is a question of private rights between parties, with which the executive has nothing to do, and the Government of the United States has no power to interpose. And then the President instructs the District Attorney, the law officer of the government, to "put himself in communication" with one of the parties, to throw all the weight and influence of the government on their side, in order to secure a favorable decision for them in the Courts of the state of New York. May it please your Honors, I will not here enter into an inquiry of the effect of this interference of the Executive of the United States with the Courts of a State, or the extent and operation of the principle which would authorize such interference. I really do not know, my imagination cannot present to me the compass of its effects on the rights of the people of the United States. again ask the attention of this honorable court to this subject. The letter begins with a declaration of the independence of the judiciary of the State of New York, the sufficiency of the laws to secure justice and the incompetency of the Executive to interfere; and yet, because the case connects itself" with another case in which the Executive has considered itself entitled to act, the whole influence of the Government is brought to bear upon the judicial authorities of the State of New York.

I said the Secretary of State had never to this hour undertaken to contest any one of the actual demands of Mr. Calderon, as preferred in his letter of 5th September. He had suffered both Mr. Calderon and his successor to remain under the impression that if their demands were not complied with, for the kidnapping of these people by the Executive, it was not for the want of a will to do it, or of a disposition to contest the claims put forth in so extraordinary a manner upon our government. Let us now see how Mr. Argaiz himself regarded the conduct of the Secretary. On the 5th of November, he writes again to Mr. Forsyth, acknowledging the receipt of Mr. Forsyth's letter, inclosing the instructions of the Attorney of the United States for the District of New York, " that he should offer to these persons his advice and assistance, if needed, with regard to the most proper means of obtaining their liberty." He says:

The Spanish ambassador was not satisfied with the letter, and yet he received it with pleasure, " because he saw that the Secretary did not refuse to admit his reasons." How is that? The Secretary of State took no measures to repel the improper demand made, or to correct the erroneous idea cherished by the Spanish legation; and this neglect Mr. Argaiz construes as a virtual admission of his " reasons ' Why should he not so construe it? Here is also a renewal of the protest, which has uniformly been maintained by the legation, against the right of any court in this country to exercise jurisdiction in the case. And yet this suit is carried on by the Executive, as in pursuance of a demand by the Spanish minister. Mr. Argaiz then refers to two personal conferences which he had with the Secretary, and he is well persuaded that what he had said, together with the indications in his note of October 22, would have been sufficient to convince " one so enlightened and discriminating as the Secretary, of the justice of his claim; that this persuasion has gained strength, from the circumstance that the Secretary of State has made no attempt in his answer to oppose those arguments, but has confined himself to endeavoring to explain the course of civil causes in the courts of this country, in order to show that the government of the United States could not interfere in the manner which her Catholic Majesty's representative requested; it becomes necessary to advance farther arguments, at the risk of being importunate."

And a little farther on, after adverting to the various excuses and palliations which seem to have been presented in these confidential conferences, for not seizing these Negroes and sending them to Cuba by the Executive power, in which he says: "it is allowed by the whole world" that "petitions or accusations of slaves against their masters cannot be admitted in a court,', he concludes by asking—

He thinks it impossible there should not be a power in the Federal Government to put down these proceedings of the courts, but he admits that unfortunately there is no such power, and then asks the Secretary of State if he cannot find a power, somewhere, to take the matter out of the hands of the judiciary altogether. And if not, he shall hold this Government responsible for the consequences, for if it has not power to fulfill the treaty, no treaty is binding on either party.

On the 26th of November, the trial of the case having been postponed by the District Court from November to January, he writes again, that he is under the necessity of renewing his former complaints.

Here he denies again that the Court, before which the Secretary of State had made a demand with the averment that it came from the Spanish minister, has any power to take cognizance of the case. He says there is no law, act, or statute for it, and then he goes on:—

That is to say, the treaty stipulation has taken away the power of the courts of the United States to exercise jurisdiction between parties. Is that a doctrine to be heard by the Secretary of State of the United States from a foreign ambassador without answering it' The ambassador proceeds to urge that "if the General Government of the Union had decided this matter of itself, gubernativamente"—here is a word, used several times in this correspondence, that no American translator has been able to translate into our language. It means, by the simple will or absolute fiat of the Executive, as in the case of the lettres de cachet—or a warrant for the BASTILE—that is what the Spaniard means by gubernativamente, when he asks the Executive of the United States, by his own fiat, to seize these MEN, wrest them from the power and protection of the courts, and send them beyond seas! Is there any such law at Constantinople ? Does the Celestial Empire allow a proceeding like this? Is the Khan of Tartary possessed of a power competent to meet demands like these? I know not where on the globe we should look for any such authority, unless it be with the Governor General of Cuba with respect to Negroes.

" If the General Government had proceeded gubernativamente" —it is not necessary now to consider what would have followed. " But," says the Chevalier d'Argaiz, "very different, however, have been the results; for, in the first place the treaty of 1795 has not been executed, as the legation of her Catholic Majesty has solicited; and the public vengeance has not been satisfied."

" The public vengeance! "What public vengeance ? The vengeance of African slave traders, despoiled of their prey and thirsting for blood! The vengeance of the barracoons! This " public vengeance" is not satisfied. Surely, this is very lamentable. Surely, this is a complaint to be made to the Secretary of State of this government. " For," says he, "be it recollected that the legation of Spain does not demand the delivery of slaves, but of assassins."

How is it possible to reconcile this declaration of the Spanish minister with the libel of the District Attorney, entered by order of the Secretary of State, setting forth what was said to be the demand of the Spanish minister? It is an explicit contradiction.

The Constitution of the United States recognizes the slaves, held within some of the States of the Union, only in their capacity of persons— persons held to labor or service in a State under the laws thereof—persons constituting elements of representation in the popular branch of the National Legislature—persons, the migration or importation of whom should not be prohibited by Congress prior to the year 1808. The Constitution no where recognizes them as property. The words slave and slavery are studiously excluded from the Constitution. Circumlocutions are the fig-leaves under which these parts of the body politic are decently concealed. Slaves, therefore, in the Constitution of the United States are recognized only as persons, enjoying rights and held to the performance of duties.

But, in all countries where men are held as slaves, when they are charged with the commission of crimes, the right of their owners to their persons is, and must necessarily be, suspended; and when they are convicted of capital crimes, the right of the owner is extinguished. Throughout the who]e correspondence between the Spanish ministers and our Department of State, concerning the surrender of these most unfortunate persons, this broad distinction appears to have been entirely and astonishingly overlooked, not only by the Spanish ministers, but by the Secretary of State and by the Attorney General.

Mr. Calderon demands that the President should keep these persons all—all—adult males and children of both sexes included— in close custody, and convey them to Cuba to be tried for their lives. Is it not palpable that if this demand had been complied with, they could not have been restored to their pretended owners, Ruiz and Montes, as merchandise of what nature soever? With what face, then, could the 9th article of the treaty with Spain be alledged to support a demand for the safekeeping and delivery of the captives, not as slaves, but as assassins—not as merchandise, but as men— as infant females, with flesh, and blood, and nerves, and sinews, to be tortured, and with lives to be forfeited and consumed by fire, to appease the public vengeance of the lawless slavetraders in Cuba.

Mr. Forsyth, by a most unaccountable oversight of this distinction between persons and things, misrepresents this demand of Mr. Calderon.

He instructs the District Attorney, Mr. Holabird, (11th Sept., 1839, Doc. p. 39, 40,) that the Spanish minister had addressed a communication to the Department of State, claiming the vessel, cargo, AND BLOCKS on board, as Spanish property, and demanding its immediate release.

The District Attorney, on the 19th of September, files, accordingly, his libels, (Record, p. 13,) stating the demand of the Spanish minister, not as it had really been made, but according to the statement of it in his instructions from the Department of State; and he prays the Court that, if the claim of the Spanish minister is well founded and conformable to treaty, the Court should make such order for the disposal of the said vessel, cargo, AND SLAVES, as may best enable the United States, in all respects, to comply with their treaty stipulations, and preserve the public faith inviolate.

But if it should be made to appear that the persons aforesaid, described as slaves are Negroes and persons of color, who have been transported from Africa in violation of the laws of the United States, and brought into these United States contrary to the same laws, he claims that, in such case, the Court shall make such further order as may enable the United States, if deemed expedient, to remove such persons to the coast of Africa, to be delivered there to such agent or agents as may be authorized to receive and provide for them, pursuant to the laws of the United States; or to make such other order as to the court should seem fit, right, and proper in the premises.

Here were three alternatives prayed for—1st. That the vessel, cargo, and blacks, assumed to be slaves, should be so disposed of as to enable the United States to comply with their treaty stipulations, and preserve the public faith inviolate. It was stated that this demand was made at the instance of the Spanish minister, but that was true only of the vessel and cargo, but not of the persons. Of them, he had demanded, by necessary implication, that they should not be restored to their pretended owners, but kept in close custody, and, in defiance of all judicial authority, conveyed to the Havana Govermnentally, that is, by the arbitrary mandate of the President of the United States, to satisfy public vengeance. The Court could not have complied with this alternative of restoring the Negroes, as property, to their owners, but by denying and defying the real demand of the Spanish minister, that they should be sent to Cuba as criminals.

The second alternative was, that the Court should enable the United States to send the Negroes home to Africa, if deemed expedient; and to this the decree of the Court said, soit fait comme il est desire— it as the District Attorney desires. Let the said Africans, in the custody of the Marshal, be delivered to the President of tile United States by the Marshal of the District of Connecticut, to be by him transported to Africa, in pursuance of the law of Congress passed March 3, 1829, entitled " An act in addition to the acts prohibiting the slavetrade."

Yet, from this sentence, claimed by the District Attorney, the representative of the Executive Administration before the Court, it is he himself that appeals. Should the Court sustain that apt peal, what judgment could they possibly render? Should they reverse the decision of the District and Circuit Courts, they would indeed determine that these forty persons should not be delivered to the President of the United States, to be sent home to Africa —but what shall the Court decree to be done with them ? Not surely, that they should be delivered up to their pretended owners, for against that the Spanish minister solemnly protests ! He demands not even that they should be delivered up to himself! He demands that it should be declared, that no tribunal in the United States has the right even to institute proceedings against them. Be declared— by whom? He demands of the Executive Administration—(will the Court please to consider what the purport of this demand is?) that the President of the United States should issue n proclamation, that no tribunal of the United States has the right to institute proceedings against the subjects of Spain for crimes committed on board a Spanish vessel, and in the waters of the Spanish territory.

When this demand was made, the Africans of the Amistad were in the custody of a judicial tribunal of the United States, upon proceedings instituted against them as criminals charged with piracy and murder. They were also claimed by two Spaniards as merchandise, their property; and the faith of a treaty was solemnly invoked to sustain the claim that this merchandise, rescued out of the hands of pirates or robbers, (that is to say, out of the hands of itself,) should be taken care of by the officers of the port into which they had been brought, and restored entire to them—Ruiz and Montes—as soon as due and sufficient proof should be made concerning the property thereof.

Now, if no tribunal in the United States had the right to institute proceedings against the subjects of Spain for crimes committed on board a Spanish vessel and in the waters of the Spanish territory, how could the Court know that these same Spanish subjects were, at the same time, the merchandise rescued out of the hands of pirates and robbers and the pirates or robbers out of whose hands the merchandise was rescued? How could the Court know that they were subjects of Spain—that they were pirates or robbers—or that they were merchandise—if the Court had no right to institute proceedings against them ?

The very phraseology of the 9th article of the treaty with Spain proves, that it was not and could not be intended to include persons under the denomination of merchandise, of what nature soever, for it provides that the merchandise shall be delivered to the custody of the officers of the port, in order to be taken care of and restored entire to the true proprietor. Now, this provision, that the merchandise shall be restored entire, is absurd if applied to human beings, and the use of the word conclusively proves that the thought and intention of the parties could not be construed to extend to human beings. A stipulation to restore human beings entire might suit two nations of cannibals, but would be absurd, and worse than absurd, between civilized and Christian nations. Again, the article provides that the rescued merchandise shall be delivered to the custody of the officers of the port into which it is brought, in order to be taken care of; but, by what Constitution or law of the United States, or of Connecticut, could the officers of the port of hew London receive into their custody, and take care of, the Africans of the Amistad?

The demand of the Spanish minister, Calderon, was, that the President of the United States should first turn manrobber; rescue from the custody of the Court, to which they had been committed, those forty odd Africans, males and females, adults and children; next turn jailer, and keep them in his close custody, to prevent their evasion; and lastly, turn catchpoll and convey them to the Havana, to appease the public vengeance of the African slavetraders of the barracoons.

Is it possible to speak of this demand in language of decency and moderation? Is there a law of Habeas Corpus in the land? Has the expunging process of black lines passed upon these two Declarations of Independence in their gilded frames? Has the 4th of July, '76, become a day of ignominy and reproach? Is there a member of this Honorable Court of age to remember the indignation raised against a former President of the United States for causing to be delivered up, according to express treaty stipulation, by regular judicial process, a British sailor, for murder on board of a British frigate on the high seas? At least, all your Honors remember the case of the Bambers? You all remember your own recent decision in the case of Dr. Holmes ? And is it for this Court to sanction such monstrous usurpation and Executive tyranny as this at the demand of a Spanish minister? And can you hear, with judicial calmness and composure, this demand of despotism, countenanced and supported by all the Executive authorities of the United States, though not yet daring to carry it into execution?

The third alternative prayed for in the name and behalf of the United States in the libel of the 19th of September, 1839, is, that the court should make such other order in the premises as it should think fit, right, and proper.

To this expedient it was necessary for the court to resort. The court did not know—it could not know that the demand of the Spanish Minister, Calderon, was not only widely different from that which the libel of the District Attorney represented it to be, but absolutely incompatible with it. The court took it for granted that the statement in the libels, at least so far as concerned the demand of the Spanish Minister, was true—and so far as respected the only Ladino on board the Amistad, the boy Antonio, did accede to the supposed demand of the Minister—did actually admit the treaty stipulation as applicable to him—and did decree that he should be restored to the legal representatives of his deceased master. The judge of the District Court relieved Antonio from his right of appeal— from that decision by stating that Antonio himself desired to be restored to his widowed mistress. But as the whole decree was the result of a deception practiced upon the court, and as in that part of it relating to Antonio, are involved principles of the deepest interest to human freedom, and to the liberties of my country, I will only express my most earnest hope, with profound respect for the court, that that portion of its decision will never tee adduced as authority for the surrender of any other individual situated as Antonio was on that trial.

And here I must avail myself of the occasion to state my objections to the admission of the case of the Antelope as an authoritative precedent in this or any other court of the United States— I had almost said for any thing, certainly for the right of the court itself to deliver up to slavery any human individual at the demand of any diplomatic or consular agent of any foreign power. And that I may be enabled to set forth at large, my reasons for resisting the application of that case as precedent or authority for the settlement of any principle now under the consideration of the Court, I must ask the permission of the Court to review the case of the Antelope itself, as it appears on the face of the Reports.

[See the review of the case of the Antelope, at the close of the argument.]

And this declaration of the Spanish minister not only contradicts it, but shows that it was impossible any such demand should have been made. "For, let it be remembered," he says, "that the Spanish legation demands not slaves but assassins." No despotism could comply with both demands, had they been made, but the Spanish Minister explicitly declares that only one demand was made by the legation, and that not the one affirmed by the Secretary of State—not property but assassins—not for the benefit of individuals, but to satisfy "public vengeance." There is something follows in the letter about " fanaticism," which I will not read to the Court, for reasons that will be obvious. Indeed, I do not know as I understand it, and it is possible that I have indulged, or may indulge in what, in certain dialects, may be called "fanaticism," myself. The Chevalier proceeds to reason:

"Thus it appears that a court of one of the States of the confederacy has assumed the direction of an affair over which it has no jurisdiction; that there can be no law, either anterior or posterior to the treaty, upon which a legal sentence can be based; that this court, by the repeated delays which it orders, contributes to delay the satisfaction demanded by public justice; and that, in consequence, the affair should only be determined by reference to international right, and, therefore, by the exercise of the power of the government, (gubernativamente) that, for its determination, the treaty exists to which Spain appeals; that, from the delay on this determination have proceeded injuries requiring indemnification, to demand which the undersigned reserves his right for a future occasion. The undersigned may, without indiscretion, declare that this must be the opinion of the cabinet, which, possessing already the necessary and even indispensable powers, may immediately act (gubernativamente) in this matter, in virtue of the actual state of the law, and without awaiting the decision of any court. Not to do so may give rise to very complicated explanations with regard to reciprocity in the execution and fulfillment of treaties."

Here it is. "Gubernativamente," again; that is the idea which was in the mind of the Spanish minister all the while, gubernativamente. That is what he was insisting on, that was the demand which the Secretary of State never repelled as he ought, by telling Mr. Argaiz that it was not only inadmissible under our form of government, but would be offensive if repeated. But where will your Honors find any thing like a demand for property' under the treaty, and by the decision of a court of the United States? He says, if the Executive does not at once act gubernativamente, and take the case out of the judiciary, and send these people to Cuba. it "may give rise to complicated explanations with regard to reciprocity in the execution and fulfillment of treaties.)" Is that language for a foreign minister to use to the American Secretary of State, and not to be answered. He then says:

"The undersigned flatters himself with the hope that his Excellency the President will take into his high consideration this communication, to which the undersigned hopes for a speedy answer, as a new proof of the scrupulousness and respect with which this nation fulfills the treaties existing with other nations. If, contrary to this hope, the decision should not be such as the undersigned asks, he can only declare the General Government of the Union responsible for all and every consequence which the delay may produce.''

There is the language used by the representative of her Catholic Majesty to the Secretary of State of the United States, and to which the Secretary never thought it necessary to make a suitable reply. There is another correspondence published among the documents of the present session of Congress, connected too with this very case, which shows that the Secretary knows how to be very sensitive with regard to any thing that looks like foreign interference with the action of our courts and government. It is in his answer to Mr. Fox the British ambassador, who addressed a letter to Mr. Forsyth, January 20th, 1841, saying he had been instructed to represent to the President that the attention of his government " has been seriously directed to the case" of these Africans, and in consequence of the treaty between Great Britain and Spain, in which the former paid a valuable consideration for the abandonment of the trade, it is "moved to take a special and peculiar interest in the fate of these unfortunate Africans." And he says:

"Now the unfortunate Africans, whose case is the subject of the present representation, have been thrown by accidental circumstances into the hands of the authorities of the United States; and it may probably depend upon the action of the United States Government, whether these persons shall recover the freedom to which they are entitled, or whether they shall be reduced to slavery, in violation of the known laws and contracts publicly passed, prohibiting the continuance of the African slave trade by Spanish subjects.

"It is under these circumstances that Her Majesty's Government anxiously hope that the President of the United States will find himself empowered to take such measures in behalf of the aforesaid Africans as shall secure to them the possession of their liberty, to which, without doubt, they are by law entitled."

The Secretary of State, in his reply, consents to receive the communication, " as an evidence of the benevolence of her Majesty's Government, under which aspect alone," he says, " it could be entertained by the Government of the United States." What a different tone is here! Mr. Fux merely referred to the relations of his own government with that of Spain, and to the 10th article of the treaty of Ghent, between Great Britain and the United States, in which both nations bound themselves " to use their best endeavors for the entire abolition of the African slave trade." His letter was courteously worded throughout. It casts no imputations upon any branch of our government, it pronounces no part of it incompetent to its functions, it asks no unconstitutional and despotic interference of the Executive with the judiciary gubernativamente, but simply, announces the interest his government feels in the case, and its "anxious hope that the President of the United States will find himself empowered to take such measures in behalf of the aforesaid Africans as shall secure to them their liberty, to which," he says, "without doubt, they are by law entitled." To this the Secretary of State replies:

" Viewing this communication as an evidence of the benevolence of her Majesty's Government—under which aspect alone it could be entertained by the Government of the United States— I proceed, by direction of the President, to make, in reply, a few observations suggested by the topics of your letter. The narrative presented therein, of the circumstances which brought these Negroes to our shores, is satisfactory evidence that her Majesty's Government is aware that their introduction did not proceed from the wishes or direction of the Government of the United States. A formal demand having been made by the Spanish minister for the delivery of the vessel and property, including the Negroes on board, the grounds upon which it is based have become the subject of investigation before the judicial tribunals of the country, which have not yet pronounced their final decision thereupon You must be aware, sir, that the Executive has neither the power nor the disposition to control the proceedings of the local tribunals when acting within their own appropriate jurisdiction."

How sensitive the Secretary is now! How quick to perceive an impropriety! How slave to the honor of the country—much more so, indeed, than the case required. How different his course from that pursued toward the Spanish minister, who had been from the beginning to the end pressing upon our government demands the most inadmissible, the most unexampled, the most offensive, and yet received from the Secretary no answer, but either a prompt compliance with his requirements, or a plain demonstration of regret that compliance was impracticable. Not one attempt do we find by the Secretary to vindicate the honor of the country, or to press the Spanish minister to bring forward his warrant for such unexampled, such humiliating demands. Neither does he intimate in the case of the Spanish claim, that it i8 received on the ground of "benevolence." Indeed he could not very well offer that as an apology. Benevolence ! The burning of these forty Africans at the stake, as the result of a compliance by our Executive with the Spanish demand, would hardly tend to exhibit or inspire " benevolence."—No, it was for vengeance that they were demanded, admitted to be so in this very letter.

In the same letter the Secretary of State does not undertake to controvert the principles set forth by Mr. Calderon, nor the arguments urged by Mr. Argaiz; but repeats that they had been submitted to the President for consideration. And that is all the answer ever given to the Spanish legation. He then refers to various personal conversations with the minister of Spain.

It was hoped that, in the various conversations which have since taken place with the Chevalier d'Argaiz at this department, on the same subject, he would have discovered additional evidence of the desire of the United States Government to do justice to the demand and representation addressed to it in the name of that of Spain, as fully and as promptly as the peculiar character of the claim admitted. From the repeated communications of the Chevalier d'Argaiz, pressing for the disposal of the question; from his reiterated over of suggestions as to the course by which he deems it incumbent upon this Government to arrive at a final decision; and from the arguments in support of those suggestions, which the undersigned does not perceive the utility of combating at the present stage of the transaction.

The Secretary makes no pretension to contest the claims of Spain—not even a suggestion of the idea that these claims are inadmissible, or that, if pressed, they would be offensive. In these conversations, many things may hare been said which perhaps it would not have been deemed compatible with the public interest to make public. I shall justify this intimation before I am through with this remarkable correspondence. But it is evident there was no resistance of the claims in question as to their justice, no examination of their principles. The Secretary says he does not perceive the utility of combating any of these demands or allegations, and he refers to these private conversations as evidence that the Government is perfectly disposed to do all that is demanded. He continues by saying—

" The Government of the United States cannot but perceive with regret that the Chevalier d'Argaiz has not formed an accurate conception of the true character of the question, nor of the rules by which, under the constitutional institutions of the country, the examination of it must be conducted; nor a correct appreciation of the friendly disposition toward Her Catholic Majesty's Government, with which that examination was so promptly entered upon. In connection with one of the points in the Chevalier d'Argaiz's last note, the undersigned will assure him, that whatever be, in the end, the disposal of the question, it will be in consequence of a decision emanating from no other source than the Government of the United States; and that, if the agency of the judicial authority shall have been employed in conducting the investigation of the case, it is because the judiciary is, by the organic law of the land, a portion, though an independent one, of that Government."

That is to say, so it is, and we can't help it, the judiciary is independent, it must have its course, and we cannot help it. He proceeds:

" As to the delay which has already attended, and still may attend, a final decision, and which the Chevalier d'Argaiz considers as a legitimate subject of complaint, it arises from causes which the undersigned believes that it would serve no useful purpose to discuss at this time, farther than to say that they are beyond the control of this department, and that it is not apprehended that they will affect the course which the Government of the United States may think it fit ultimately to adopt."

The Spanish minister is here given to understand, in his ear, that care had been taken to prevent the Africans from being placed beyond the control of the Executive, and therefore he need be under no apprehension that the decision of the courts, whatever it may be, " will affect the course which the Government of the United States may think it fit ultimately to adopt." What other construction can possibly he given to this paragraph? If any other is possible from the words there are facts in the case which prove that this was what was intended. The Secretary proceeds with his explanations and apologies.

Here, then, it is avowed that the Executive government of this nation had interposed in a suit between two parties, by extending a favor entirely gratuitous to one of the parties, who, it is at the same time admitted, had no claim whatever to this gratuitous aid. And then comes the exhibition which I have already read, of the national sympathy, in which all the authorities of the country are alleged to have participated, and the assumption, under which all the proceedings have been carried on, that there was but one party aggrieved in the case, and that party was the Spanish slave traders.

On the 25th of December the Chevalier d'Argaiz addressed a long letter to the Secretary of State, in which he acknowledges the receipt of the last letter, to which " it would be superfluous" —the word is ocioso, idle—to reply, inasmuch as the Secretary of State does not seem to have considered it requisite in the present situation of the affair, to combat the arguments adduced by the undersigned. The delicacy of the undersigned does not, however, allow him to pass over (desoir) certain insinuations (remarks) contained in the said note; and it will, perhaps, be difficult for him to avoid adducing some new argument in support of his demands."

The Secretary had never met these claims and arguments, as it was his duty to do, nod the Spanish minister is continually reminding him that he does not answer his arguments. He then refers him to his own course, and says, "The undersigned would not have troubled the Government of the Union with his urgent demand, if the two Spaniards (who, as the Secretary of State, in his note of the 12th, says, 'were found in this distressing and perilous situation by officers of the United States, who, moved by sympathetic feelings, which subsequently became national,') had not been the victims of an intrigue, as accurately shown by Mr. Forsyth, in the conference which he had with the undersigned on the 21st of October last."

He here refers to a private conference in which the Secretary of State had accurately shown that the two Spaniards in New York were the "victims of an intrigue." The Secretary of State of the United States, then, had confidentially and officially informed the Spanish minister that the two Spaniards, in being arrested at the suit of some of these Africans, were the victims of an intrigue." What the Secretary meant by " victims of an intrigue, "is not for me to say. These Spaniards had been sued in the courts of the state of New York by some of my clients, for alleged wrongs done to them on the high seas—for cruelty, in fact, so dreadful, that many of their number had actually perished under the treatment 'These suite were commenced by lawyers of New York—men of character in their profession. Possibly they advised with a few other individuals—fanatics, perhaps, I must call them, according to the general application of language, but if I were to speak my own language in my own estimate of their character, so far as concerns this case, and confining my remarks exclusively to this present case, I should pronounce them the FRIENDS OF HUMAN NATURE—men who were unable to see these, their fellow men, in the condition of these unfortunate Africans, seized, imprisoned, helpless, friendless, without language to complain, without knowledge to understand their situation or the means of deliverance—I say they could not see human beings in this condition and not undertake to save them from slavery and death, if it was in their power—not by a violation of the laws, but by securing the execution of the laws in their favor. These are the men whom the American Secretary of State arraigns in a confidential conversation with the minister of Spain, as the instigators of "an intrigue" of which he holds these disappointed slaveholders to be the unfortunate victims. The Chevalier goes on:

Here it is made the subject of complaint from a foreign ambassador to the Executive Government of the United States, that in a court of the United States, in a trial for the life and liberty of forty human beings, the testimony, of "an English doctor" was received. And this complaint also was received without a reply. The "English doctor," thus spoken of, was Doctor Madden, a man of letters, and in the official employ of the British Government, in a post of much importance and responsibility, as the superintendent of liberated Africans at Havana. His testimony was highly important in the case and was admitted in the court below, and now forms a part of the record now before your Honors. He does not use the word bribery in reference to the Governor General of Cuba.

[DEATH OF JUDGE BARBOUR—THE PROCEEDINGS OF THE COURT SUSPENDED.

Washington, Feb. 25, 1841.

The proceedings of the Court in this solemn case have been interrupted by the solemn voice of death. One of the learned and honorable judges of the Court, who sat yesterday in his place, listening with profound and patient attention to the argument of a counselor many years older than himself, reasoning eloquently in behalf of justice on earth, has been summoned to his own dread account, at the bar of Eternal Justice above. Judge Barbour, of Virginia, the seventh in rank on the bench, died last night in his bed—in his sleep, it is probable, without a groan or a struggle. The servant at his lodgings went at the usual hour this morning to the rooms of the different Judges, to call them to breakfast. 4s the Chief Justice was passing the door of Judge Barbour's room, the man said to him, "Chief Justice, will you please to come here, sir—I think Judge Barbour is dead." Judge Taney went to the bed, and there saw his associate lying on his side, as if in a gentle sleep, but dead and cold, with the exception of a slight remaining warmth at the chest. Not a muscle was distorted, nor were the bedclothes in the slightest degree disturbed, so that it is probable his heart ceased to beat in an instant, while he was asleep.

At the usual hour for opening the Court this morning, none of the Judges were seen in the courtroom, which was already filled with persons come to hear the continuation of Mr. Adams' speech.]

At length the Judges came in together, and their countenances looked pale, distressed, and sorrowful. As soon as they had taken their seats, the Crier opened the Court in the usual form, and the Chief Justice addressed the gentlemen of the bar—"Gentlemen a painful event has occurred—Judge Barbour died suddenly last night—and the Court is therefore adjourned until Monday."

The Crier then made proclamation to that effect, the Judges all rose, and retired again to their private apartment, and the assembly withdrew.

I did not expect an announcement of so overwhelming a Providence in a manner so severely simple and subdued, but it struck me as eminently appropriate for the Supreme Court of this nation. It was in keeping with the strictest propriety and suitableness. It was sublime.

RESUMPTION OF THE TRIAL.

Washington March 1, 1841.

On the reopening of the Court, the Attorney General of the United States, H. D. Gilpin, Esq. presented a series of appropriate resolutions in reference to the decease of Judge Barbour, which had been adopted on Friday, at a meeting of the Bar of officers of the court, and which he moved to have entered on the records of the court. The Chief Justice responded in a short address, and concluded with ordering the resolutions to be entered on the records.

Mr. Adams then resumed his argument, as follows:—

May it please your Honors,

The melancholy event which has occurred since the argument of this case was begun, and which has suspended for a time the operations of the Court itself, and which I ask permission to say that I give my cordial, and painful concurrence in the sentiments of the Bar of this Court—has imposed on me the necessity of re stating the basis and aim of the argument which I am submitting to the Court, in behalf of the large number of individuals, who are my unfortunate clients.

I said that my confidence in a favorable result to this trial rested mainly on the ground that I was now speaking before a Court of JUSTICE. And in moving the dismissal of the appeal taken on behalf of the United States, it became my duty, and was my object to show, by an investigation of all the correspondence of the Executive in regard to the case that JUSTICE had not been the motive of its proceedings, but that they had been prompted by sympathy with one of the two patties and against the other. In support of this, I must scrutinize, with the utmost severity every part of the proceedings of the Executive Government. And in doing it, I think it proper for me to repeat, that in speaking of the impulse of sympathies, under which the government acted, I do not wish to be understood to speak of that sympathy as being blamable in itself, or as inducing me to feel unfriendly sentiments towards the Head of the Government, or the Secretary of State, or any of the Cabinet. I feel no unkind sentiments towards any of these gentlemen. With all of them, I am, in the private relations of life, on terms of intercourse, of the most friendly character. As to our political differences, let them pass for what they are worth, here they are nothing. At the moment of the expiration of this administration, I feel extreme reluctance at the duty of bringing its conduct before the court in this manner, as affecting the claims of my clients to JUSTICE. My learned friend, the Attorney General, knows that I am not voluntary in this work. I here descended to personal solicitation with the Executive, that by the withdrawal of the appeal, l might be spared the necessity of appearing in this cause. I have been of the opinion that the case of my clients was so clear, so just, so righteous, that the Executive would do well to cease its prosecution, and leave the matter as it was decided by the District Court, and allow the appeal to be dismissed. But I did not succeed, and now I cannot do justice to my clients, whose lives and liberties depend on the decision of this Court—however painful it may be, to myself or others.

In my examination of the first proceedings of the Executive in this case, I did scrutinize and analyze most minutely and particularly, the four demands first made upon our government by the late Spanish minister, Mr. Calderon, in his letter to the Secretary of State of Sept. 5, 1839. I tested the principles there laid down, both by the laws of nations and by the treaties between the two Nations to which he had appealed. And I showed that every one of these demands was inadmissible, and that every principle of law and every article of the treaty, he had referred to, was utterly inapplicable. At the close of my argument the other day, I was commenting upon the complaint of the present minister, the Chevelier d'Argaiz, addressed to the Secretary of State on the 25th of December, 1839, in relation to the injustice he alledges to have been done to the two Spanish subjects, Ruiz and Montes, by their arrest and imprisonment in New York, at the suit of some of the Africans. He says he "does not comprehend the privilege enjoyed by Negroes, in favor of whom an interminable suit is commenced, in which everything is deposed by every person who pleases; and, for that object, an English doctor who accuses the Spanish Government of not complying with its treaties, and calumniates the Captain General of the island of Cuba, by charging him with bribery."

This English Doctor is Dr. Madden, whose testimony is given in the record. He certainly does not charge the Captain General with bribery, although he says that both he and the other authorities of Cuba are in the habit of winking or conniving at the slave trade. That this is the actual state of affairs, I submit to the Court, is a matter of history. And I call the attention of the Court to this fact, as one of the most important points of this case. It is universally known that the trade is actually carried on, contrary to the laws of. Spain, but by the general connivance of the Governor General and all the authorities and the people of the island. The case of this very vessel, the visit of Ruiz and Montes to the barracoon in which these people were confined, the vessel in which they were brought from Africa, are all matters of history. I have a document which was communicated by the British government to the Parliament, which narrates the whole transaction. Mr. A. here read from the Parliamentary documents, a letter from Mr. Jerningham, the British Minister at Madrid, to the Spanish Secretary of State, dated January 5th, 1840, describing the voyage of the Tecora from Africa, the purchase of these Africans who were brought in her, with the subsequent occurrences, and urging the Spanish Government to take measures both for their liberation, and to enforce the laws of Spain against Ruiz and Montes.

He says " I have consequently been instructed by my government to call upon the government of her Catholic Majesty to issue, with as little delay as possible, strict orders to the authorities of Cuba, that, if the request of the Spanish minister at Washington be complied with, these Negroes may be put in possession of the liberty of which they were deprived, and to the recovery of which they have an undeniable title.

"I am further directed to express the just expectations of Her Majesty's government that the Government of her Catholic Majesty will cause the laws against the slave-trade to be enforced against Messrs. Jose Ruiz and Pedro Montes, who purchased these newly imported negroes, and against all such other Spanish subjects as have been concerned in this nefarious transaction."

These facts, said Mr. A., must be 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? Not the slightest attempt has been made to bring forward any evidence on this point, for the very plain reason that there could be none. The fact of the slave trade is too notorious to be questioned. I will read, said he, from another high authority, a book filled with valuable and authentic information on the subject of the slave trade' written by one of the most distinguished philanthropists of Great Britain, Sir Thomas Fowel1 Buxton. Mr. A. then read as follows:—

"It is scarcely practicable to ascertain the number of slaves imported into Cuba: it can only be a calculation on, at best, doubtful data. We are continually told by the Commissioners, that difficulties are thrown in the way of obtaining correct information in regard to the slave trade in that island. Everything that artifice, violence, intimidation, popular countenance, and official connivance can do, is done, to conceal the extent of the traffic. Our ambassador, Mr. Villiers, April, 1837, says, 'That a privilege (that of entering the harbor after dark) denied to all other vessels, is granted to the slavetrader; and, in short, that with the servants of the Government, the misconduct of the persons concerned in this trade finds favor and protection. The crews of captured vessels are permitted to purchase their liberation; and it would seem that the persons concerned in this trade have resolved upon setting the government of the mother country at defiance.' Almost the only specific fact which I can collect from the reports of the Commissioners, is the statement 'that 1835 presents a number of slave vessels (arriving at the Havana) by which there must have been landed, at the very least, 15,000 Negroes.' But in an official letter, date 28th May, 1836, there is the following remarkable passage: 'I wish I could add, that this list contains even one fourth of the number of those which have entered after having landed cargoes, or sailed after having refitted in this harbor.' This would give an amount of 69,000 for the Havana alone; but is Havana the only port in Cuba in which Negroes are landed? The reverse is notoriously true. The Commissioner says, 'I have every reason to believe that several of the other ports of Cuba, more particularly the distant city of St. Jago de Cuba, carry on the traffic to a considerable extent.' Indeed, it is stated by Mr. Hardy, the consul at St. Jago, in a letter to Lord Palmerston, of the 18th February, 1837, 'That the Portuguese brig Boca Negra, landed on the 6th inst. at Juragua, a little to windward of this port, (St. Jago,) 400 Africans of all ages, and subsequently entered this port.' But in order that we may be assuredly within the mark, no claim shall be made on account of these distant ports. Confining ourselves to the Havana, it would seem probable, if it be not demonstrated, that the number for that port, a fortiori, for the whole island, may fairly be estimated at 60,000."

This evidence is important to show what is the real value of this certificate of the Governor General. There is one other proof which I will read to the court, and leave it to your Honors to judge of its bearing, and of the conclusion to which it arrives It is the statement of the Spanish vice consul, Mr. Vega.

I now come to the case of the Antelope, as reported in 10 Wheaton, 66, and I ask particular attention to this case, not only because it brings a show of authority in favor of the delivery up of slaves, but because I feel bound to entreat the Court, whether they find a principle settled by that case or not, to settle the question now upon further and mature consideration. Chief Justice Marshall said, expressly, in delivering the opinion of the Court, that, as the Court was divided, " no principle is settled." If there was a principle settled, and that was in favor of delivering up persons held as slaves by foreign laws, I ask this Court to reexamine that principle and settle it anew. And if, upon reexamination, by what [ should deem the greatest misfortune to this country, the Court should be divided in this case, as it was in that, I respectfully ask your Honors to give your separate opinions, with the reasons. I would not call in question the propriety of the determination of the Court in that day, severally, to withhold their reasons from the public; the state of the matter is now materially altered. It has become a point in which the morals, as well as the liberties of this country, are deeply interested. The public mind acquiesced before, in postponing the discussion, but now it is no longer a time for this course, the question must be met, and judicially decided.

THE CASE OF THE ANTELOPE REVIEWED.

The case of the Antelope was of so very extraordinary a character, and the decisions of the District, Circuit, and Supreme Courts of the United States, on the principles involved in it, were so variant from and conflicting with one another, that a review of its history will disclose, eminently, the progress of that moral, religious, and political revolution in the opinions of mankind which has been, from a period coeval with that of North American Independence, struggling against the combined powers and dominions of the earth and of darkness for the suppression of the African slavetrade.

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 manycolored banners of the newly emancipated colonies of Spain, transformed into a multitude of selfconstituted sovereign and disunited States, capturing wherever they could be found the trading vessels of Portugal and of Spain, a privateer, named the Columbia, commanded by a citizen of the United States named Metcalf, came into the port of Baltimore under the flag of Venezuela—there clandestinely shipped a crew of thirty or forty men, not one of whom had ever owed allegiance to the Republic of Venezuela, and sailed in search of adventure, to pounce upon the defenseless upon any and every ocean for the spoils. She had scarcely got beyond the territorial jurisdiction of the United States when she changed her name of Columbia for that of Arraganta, hoisted the flag of Artigas, then ruler of the Oriental Republic of La Plata, and proceeded for the slavecoast of Africa—a mighty huntress, and her prey was man. There she fell in with sister pirates in abundance—first an American, from Bristol, Rhode Island, and borrowed twentyfive Negro captives from her; then sundry ostensible Portuguese vessels, from which she took nearly two hundred; and lastly, a Spaniard from Cuba, fitted out some months before by a slave trading house at the Havana, to catch a yet lawful human cargo from a region south of the equator; for the trade north of the equator had even then been declared unlawful by Spain. The name of this vessel was, at that time, the Antelope; and with her and her living merchandise the Arraganta steered for the coast of Brazil, for a market. There the Arraganta was shipwrecked; her master, Metcalf, either drowned, or made prisoner with the greater part of his crew; while the remainder, under the command of John Smith, a citizen of the United States, transhipping themselves and all their surviving African captives into the Antelope, changed her name to that of the General Ramirez, and stood for the southern coast of the United States, and a market.

In the month of June, 1820, this vessel, thus freighted, was found hovering on the coast of Florida, with the evident intention of surreptitiously introducing the Negroes and effecting the sale of them within the United States. She was there in flagrant violation of two classes of their laws—those intended to suppress the unlawful interference of our citizens in the civil war then raging between Spain and her South American Colonies contending for their independence, and those prohibiting their participation in the slave trade, and denouncing it as piracy.

She was reported to Captain John Jackson, then cruising on the same coast in the Revenue Cutter Dallas, as a vessel of piratical appearance. He, thereupon, boarded her; and finding her full of Negro slaves, and commanded by John Smith, holding forth at once a privateering commission from Artigas, and a protection as an 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 slavetrade, when the laws of his country had pronounced it piracy, punishable with death, it was that of this same John Smith He had renounced and violated those rights, by taking a commission from Artigas to plunder the merchants and mariners of nations in friendship with his own; and yet he claimed the protection of that same country which he had abandoned and betrayed. Why was he not indicted upon the act of 15th May, 1820, so recently enacted before the commission of his last and most atrocious crime?

And can we choose but further exclaim—if ever hapless African, Kidnapped into slavery by one gang of ruffians, and then stolen by another, and by them attempted to be smuggled into our country as slaves, and by n fortunate casualty brought within our jurisdiction and the beneficent operation of our emancipating law, was entitled to the blessing of freedom, and the right of being transported under our national protection to his native land, so was every individual African found by Captain Jackson on board of the Antelope, and brought within the jurisdiction of this Federal Union. Why were they not instantly liberated and sent home to Africa by the act of March 3d, 1819. Alas! far other. wise was, in the judicial district of Georgia, the disposal of this pirate, robber, and traitor to his country! Instead of being indicted for all or any one of his many violations of the laws of the United States, of nations, and of humanity, he was not only suffered to go at large, entirely unmolested, but was permitted to file his claim, before the District Court of the United States in Georgia, for the restitution to him of the Antelope and all her living cargo, as captured jure beli), by virtue of his commission from Artigas. This claim was, indeed, dismissed, with costs, by the judge of the District Court, William Davis. Smith appealed from that decision to the Circuit Court, the presiding judge of which, William Johnson, confirmed the decision of the District Court, and spoke with suitable severity, not of the wickedness, but of the absurdity of Smith's pretension. And here, and in freely commenting hereafter upon the opinions and decisions upon this case, of these two judges, William Davis and William Johnson, both long since deceased, truth and justice require the remark, with all the respect due to their memories as upright judges and honorable men, that they were both holders of slaves, adjudicating in a State where slavery is the law of the land. If this circumstance may account for the fact, that the ministers of national justice in Georgia slumbered over the manifold transgressions of John Smith, for, which he never was prosecuted, it will account no less for that division of opinion in the Supreme tribunal of the Union, which veiled from public examination and scrutiny the reasons of each judge for his own opinion, because, as the Chief Justice declared, NO PRINCIPLE WAS SETTLED. John Smith did not venture to appeal from the decisions of the District and Circuit Courts against his claim to the Supreme Court of the United States. His plunder slipped from his hands; but his treachery to his country for a commission from Artigas, his buccanier and slave trade piracies, though not even undivulged crimes, yet remained unwhipped of justice.

On the 27th of July, 1820, Captain John Jackson, in behalf of himself, and of the officers and crew of the Revenue Cutter Dallas, filed in the District Court a libel against the Antelope, or General Ramirez, for forfeiture, under the act of Congress of 20th April, 1818, prohibiting American citizens from engaging in the African slave trade.

At the same Court, Charles Mulvey, viceconsul of Spain, and Francis Sorell, viceconsul of Portugal, at Savannah, filed each a libel for restitution, the former of 150, the latter of 130 African Negroes, composing the cargo of the Antelope. To these two libels Richard Habersham, district attorney of the United States, interposed in their name a claim to the freedom of all the Negroes, on the ground that some American citizen was interested or engaged in their transportation from Africa.

The Spanish viceconsul 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 viceconsuls; and twentyfive 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 slavetrade; 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 slavetrader, the Exchange, from Bristol, Rhode Island. John Smith had made no attempt to smuggle these into the United States separate from the rest. His attempt had been to smuggle them all in. Why, then, should those taken from the American vessel alone be declared free, and those taken from the Spaniards and Portuguese doomed to perpetual slavery?

The judge hunted up sundry old decisions in the Supreme Court of the United States, and, finally, the case of the Josafa et Segunda, 5 Wheaton, 338, for a principle "that, upon a piratical or illegal capture, the property of the original owners cannot be forfeited for the misconduct of the captors in violating the municipal laws of the country where the vessel seized by them is carried." The application of which principle to the rights of the respective parties in the case of the Antelope was, that the property of the Spanish owners of the Antelope could not be forfeited by the misconduct of John Smith in capturing it, in violation of the laws of the United States, by virtue of a commission from Artigas. Thus far the principle was correctly applied; but to that other misconduct of John Smith, the attempt to smuggle these Negroes into the United States, by which they became forfeited, and made free by the law, whoever might have been their owner; to that misconduct, the precedent of the Josafa et Segunda had no application whatever, and it was altogether overlooked in the decision of the district judge, although he decreed freedom to the chance chosen survivors of the twentyfive Negroes of the very same cargo, taken from the American vessel, though forfeited and liberated by the very same attempt of John Smith to smuggle them into the United States for sale. It was perfectly immaterial to the question of forfeiture and liberation to whom all or any of the Negroes had originally belonged. It was the attempt to smuggle them which induced their forfeiture by the rigor, and their consequent liberation by the beneficence, of the law.

But having once introduced this entirely extraneous question, to whom the Negroes on board the Antelope, when captured by Captain Jackson, had originally belonged the District Judge proceeded, upon such evidence as he deemed sufficient, to decide, that those captured in her by the Arraganta, were the property of Spaniards, and without one title of evidence, to infer, that all the Negroes taken from vessels under Portuguese colors, had been the property of Portuguese subjects, unknown; and upon these conclusions and assumptions, to adjudge all the Negroes, save the scanty surviving remnant of twenty five taken from the Exchange of Rhode Island, to the Spanish and Portuguese Vice Consuls.

At this distance of time, who can read such an adjudication of an American judge, without amazement.

The claim of C. Mulvey [Spanish Vice Consul] was therefore sustained to the Antelope, and to as many of the Negroes, as should appear to be remaining of those found on board of her at the time of her capture by the Arraganta.

The libel of F. Sorrell, the Portuguese Vice Consul, was sustained against so many of the slaves as should appear to remain of those taken by the Arraganta from Portuguese vessels.

And it was further ordered with assent of parties, (that is, of these two parties the Spanish and Portuguese Vice Consuls, and well they might assent!) that the chim of John Jackson to salvage, should be sustained as regarded the Negroes claimed by and adjudged to them—and as regarded those adjudged to the United States, to an allowance of twenty five dollars for each according the Act of Congress of 3d March, 1819.

This decree was pronounced on the 2lst of February 1821— and the clerk of the court was directed on or before the 26th day of the same month to report to the court the number of Spanish and Portuguese Negroes in the hands of the marshal, distinguishing the Negroes respectively belonging to each. He was also required to designate the very small number adjudged to the United States, that is, to the blessed enjoyment of themselves and their own liberty; and associating with himself two resident merchants, was at the same time to report the quantum or proportion of salvage to be allowed to Captain Jackson for the Negroes thus reputably and substantially sold by the judicial authority of the United States to the Spanish and Portuguese Vice Consuls.

This unblushing bargain and sale of human captives, entitled at least by the intention of the United States laws to their freedom' was the first incident which brought to a pause the legal standard of morality of a Connecticut District Judge of the United States in the case of the Amistad captives. An estimate in dollars and cents of the value at New Haven, of from two to three hundred living men and women, for the purpose of allowing salvage upon them as merchandise, was too much for the nerves of a Yankee judge. The authority of the case of the Antelope was in this particular no precedent for him. The very proposal shocked his moral sense, and he instantly decided that men and women were not articles for a price current in the markets overt of Connecticut.

In the markets of Savannah, nothing was more simple. The clerk of the District Court, with his two associated resident merchants, in obedience to the order of the judge appraised the Negroes taken from the Spanish and Portuguese vessels at three hundred dollars per head, making the aggregate of sixtyone thousand five hundred dollars [for 205 souls]; and they were of opinion that there should be an allowance of one fourth of said sum to Captain Jackson, his officers and crew, for salvage on the said Negroes.

Seventyfive dollars per head! Fifteen thousand three hundred and seventy five dollars for two hundred and five men and women! What a revolution in the relative value of slaves and of freemen, since the age of Homer! In the estimate of that Prince of Grecian Poets.

Jove fix'd it certain that whatever day

Makes man a slave, takes half his worth away—

and in the political statistics of the author of the Declaration of Independence the degradation of the character of man, by the infliction upon him of slavery is far greater than is asserted by the blind old rhapsodist of Smyrna. But here we have an inverted proportion of relative value, and Captain Jackson, by the decree of a Judicial Court of the United States receives twentyfive dollars a head for redeeming one parcel of Africans from slavery to freedom, while at the same time he was to receive seventyfive 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 fiftyeight Negroes had been delivered by Captain John Jackson, Commander of the Revenue Cutter Dallas, on the 25th of July, 1820, to the marshal of Georgia, from on board the General Ramirez [the Antelope.] That of that number fortyfour had died in the space of seven months —one was missing and one discharged by order of court, and that the marshal returned two hundred and twelve Negroes which remained to be apportioned.

What kind become of the missing one neither the clerk nor the judge seems to have thought it worth his while to inquire—why should they ? it was but one man—and that man a Negro ! no further trace of him appears upon the record.

Neither was it thought necessary to record the reason of the favor bestowed by the court upon one other man in ordering his discharge. The very nature of the order is its own justification.

But mark the mortality of the Negroes! out of 258, four deaths in the space of seven months! and that, not while crammed between the decks of a slaver in the middle passage, but on the soil of the American Union, in the mild and healthy climate of Georgia—in the custody of an officer commissioned by the President of the United States, and under the protection of their judicial magistracy. In the case of the Amistad, the mortality ceased, as soon as the captives were admitted to the privilege of breathing in the atmosphere of freedom.

But if the death of one man in six, in the space of seven months, is deeply distressing to the sympathies of our nature, what shall we say to a mortality of eighteen out of twenty five, which the clerk reported as the proportion of deaths among the Negroes taken from the American vessel, the Exchange, and who were by the final decree of the judge to be liberated? The clerk in his report denominates them American Negroes, and he reduces their number to SEVEN. Seven African captives out of two hundred and fiftyeight, was the number to whom the benignity of the laws of the American Union enacted for the suppression of the African slave trade, and expounded by the District Court of the United States in Georgia, would have extended the inestimable blessings of freedom and restoration to their country!

The clerk had been required to report the number of Spanish, Portuguese, and American Negroes— distinguishing those respectively belonging to each of the se classes. He could obtain no evidence worth a straw upon which to found his report, the Negroes were all huddled together in one crowd John Smith, the pirate, was the only witness who could tell him which were the Negroes taken out of the American vessel, and he told him that sixteen out of the twentyfive had died, before the capture of the Antelope by Capt. Jackson. The clerk reported accordingly, and added two to the number of deaths, as the average loss since the 25th of July; that is, since they had been in the custody of the marshal.

It further appears from his report that the whole number captured by the Arraganta had been 331, of which 213 were Portuguese, 93 Spanish, and 25 American. That of the whole number 119 had died, but in what proportions from the general classes he could not ascertain. John Smith testified that sixteen of the 25 American Negroes had died before the Antelope was taken by Captain Jackson, and the clerk guessed that two more had died since, because that was the average loss of 9 to 44 out of 258. But neither John Smith nor any one else could point out the individual survivors of each separate class, and the clerk therefore reported that there had been captured by the Arraganta 213 Portuguese Negroes, of which the average loss was 71;—93 Spanish Negroes of which the average loss was 30, and 25 American Negroes, of whom the deaths attested by John Smith were 16, and the subsequent average loss 2, leaving as before stated 212 to be apportioned—that is, 142 to the Portuguese Vice Consul, 63 to the Spanish Vice Consul, and 7 to the United States, to be sent home to Africa; freemen by the mandate of our laws.

That the whole 212 were entitled to the benefit of the same laws, I cannot possibly doubt—but such was not the decision of the District Judge. Exceptions were taken to the report of the clerk, by the District Attorney of the United States, Richard W. Habersham, and by Spanish Vice Consul Mulvey. The District Attorney still claiming the freedom of all the Negroes, and objecting to the allowance of 75 dollars a head to Captain Jackson for salvage, though not to the allowance of 25 dollars a head for their liberation. The Spanish Vice Consul insisting that the number of slaves allowed to the Spanish claimants was too few and not supported by any testimony in the case—and that the allowance to Captain Jackson for salvage was too high, and ought to be regulated by the act of Congress in relation to the compensation given in case the said slaves had been decreed to be delivered to the United States.

The Judge confirmed the report of the Clerk in all its parts; and the District Attorney, in behalf of the United States, and the Spanish Vice Consul, in behalf of the Spanish claimants, appealed to the Circuit Court, then next to be held at Milledgeville on the 8th day of May, 1821.

In these decisions of the District Court, is it possible to avert one's eyes from the glaring light of an overruling propensity to narrow down, if not wholly to nullify, the laws of the United States for the suppression of the African slave trade? To sustain the claim of the Spanish Vice Consul, the irrelevant question to whom the Antelope had originally belonged, was introduced; and upon that was engrafted the deeply controverted question, whether the African slave trade was or was not contrary to the law of nations. To redeem from forfeiture the Antelope and the Negroes captured in her by the Arraganta, the judge resorted to an argument of counsel in the recently reported case of she Josefa Segundas, (Wheaton, 338,) where it was said, that as piracy can neither divest nor convey property, a pirate cannot, by a subsequent violation of the laws of his own country, forfeit the property of which he has acquired possession by preceding piracy. This seems equivalent to a principle that a second act of piracy protects the pirate from punishment for the first. However conformable this maxim may be to the legal standard of morality, the Supreme Court did not so decide in the case of the Josefa Segunda. They decided, that the capture of a Spanish vessel and Negroes by privateer, with a commission from Arismendi, under the Republic of Venezuela, was not piracy; and that the Josefa Segunda, a Spanish vessel, and her cargo of Negroes, captured by authority of such a commission, were forfeited by a subsequent attempt of the captors to smuggle them into the United States, though taken from the Spanish owners only by the Venezuelan commission from Arismendi. Now the Columbia had entered Baltimore, and there enlisted her crew under those identical colors of Venezuela, and, DO doubt, with a commission from the same Arismendi. When metamorphosed into the Arraganta, she took the Antelope and her Negroes, by a commission from Artigas, quite as efficient to legitimate a prize as that of Arismendi; and John Smith, when captured with the Antelope and her Negroes, by Captain Jackson, produced this commission from Artigas as his warrant for his possession of the vessel and the slaves. As between the Arraganta and the Antelope, therefore, the capture of the latter by a commission from Artigas was not piratical but belligerent, it did divest the Spanish owners of the property and vest it in the captors, at least sufficiently to make it forfeitable by their subsequent attempt to smuggle it into the United States; and the decision of the Supreme Court, in the case of the Josefa Segunda, instead of sustaining that of the District Judge, in the case of the Antelope, is an authority point blank against it.

For the allotment of 142 of the Negroes to the Portuguese Vice Consul, there was not even the apology of a Portuguese claimant, other than the Vice Consul himself to the property. There was not a shadow of evidence that they were the property of Portuguese subjects, and none were ever found to claim them. He took the testimony of the capturing crew, that some of them were taken from vessels under Portuguese colors; and as he had no evidence that Portugal had then prohibited the slave trade, he took it for granted that the Negroes were all slaves, and, as such, he decreed that they should be delivered to the Vice Consul.

With regard to the question, whether Slavery was or was not contrary to the laws of nations, his decision was such as might be expected from a judge, himself a holder of slaves, in a land where slavery has the sanction of law. The question, as I have endeavored to show, did not belong to the case. "But it is contended," (says the District judge) " on the authority of some recent decisions in the British Admiralty Court, that Africans are to be considered free, until it is shown that they are slaves, and that the burden of proof is with those who set up a claim to them. The doctrine may be correct in England, since there Negroes have al. ways been held to be free, except in cases where they have voluntarily entered into engagements binding them to service. And yet, inconsistent and contradictory as it may be, slavery has been recognized in all the British American colonies.

 But it does not appear to me that I can admit the proposition in the form and manner in which it is here presented. The period is not very remote when all the Governments of Europe, and the several States of the United States when they were British colonies, and many of them after they became independent, recognized slavery. But a few years have elapsed since the Government of the United States permitted her citizens to engage in the African trade. Under such a state of things, it appears to me that this Court is bound to consider the unfortunate Africans, when found in the possession of the subjects or citizens of any Government which has heretofore permitted this traffic as slaves, until the contrary be shown. That this trade, however inhuman it may be, and however obnoxious it is to every benevolent feeling, must now be considered legal, notwithstanding its injustice, until it is shown to have been prohibited by that Government whose subjects claim the right of engaging in it.

It is unnecessary further to repeat verbatim et literatim this argument of the District judge to sustain his decree. Every word and letter of it teems with anxiety to sustain the institution of Slavery, and to prostrate instead of enforcing the laws of the United States for the suppression of the slave trade. What he calls certain restrictions placed on the trade by Spain, was the total prohibition of it north of the equator, even then stipulated by Spain in a treaty with Great Britain, and enacted accordingly by her law. But what of that? The judge admits that the trade is inhuman, that it is obnoxious to every benevolent feeling, but he is bound to consider it legal, notwithstanding its injustice, because many years before it had been practiced by Great Britain' and not many years before by the United States themselves." Is this reasoning for a Court of JUSTICE? When all the civilized nations of the earth shall have abolished the African slave trade, the judge thinks that captured Africans would be considered free, unless proved to be slaves: and if Spain and Portugal should abolish the slave trade, he thinks the burden of proof that Negroes captured in their vessels were slaves, would rest upon their captors. In that case, the Court would respect the rights of Africans as much as those of any other class of persons; but, until then, how could the Court be permitted to examine into treaty stipulations of Spain, or into any restriction imposed by Spain upon the traffic of her subjects in slaves ?

Such was the reasoning of a slaveholding judge upon slavery and the slave trade, and by such reasoning did he' out of two hundred and twelve Africans, forfeit to the United States, to receive from them the blessing of freedom, and restoration to their native country reduce the number who should enjoy that privilege to seven individuals, consigning all the rest to perpetual, hopeless Spanish and Portuguese slavery!—Seven freemen to two hundred and five slaves!

The appeal from these decrees to the Circuit Court of the United States came up before Judge William Johnson, in May, 1821. His opinions differed toto coelo from those of the District judge. He increased the number of the Africans to be liberated, as survivors of the twentyfive 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 twothirds of the whole. He reversed the decree of the District judge, which had allotted one hundred and fortytwo Negroes to the Portuguese Vice Consul; and reserved his claim for further proof, which never was produced. He reduced the allowance of salvage to Captain Jackson, and the crew of the revenue cutter, to fifty dollars a head for the Negroes to be delivered to the Spanish Vice Consul, and expressed a strong doubt whether it was a case for salvage at all. He intimated, very significantly, an opinion, that if a claim had been interposed by an agent of Venezuela, or of the Oriental Republic, the capture of the Antelope, by Captain Jackson, must have been pronounced illegal—a mere marine trespass—punishable in damages rather than rewardable for salvage; and yet he allowed him a salvage of fifty dollars a head for the Negroes surrendered to the Spanish Vice Consul. He concurred, however in the most exceptionable of all the opinions of the District judge; namely, that because John Smith had no forfeitable interest in the Antelope and in the Negroes, originally belonging to Spanish owners, but then in his possession, and which he was when captured, in the act of smuggling into the United States; therefore they were not forfeited at all, and must be delivered up to the Spanish Vice Consul. The judge of the Circuit Court, sitting alone, after stating the circumstances of the capture by Captain Jackson, and the claims of the respective parties, promptly and without hesitation pronounces, that John Smith was taken in the act of violating the laws of the United States for the suppression of the slave trade; and that, " if the case rested here there would be no difficulty in adjudging the vessel forfeited, for taking these Africans on board at sea, with intent to dispose of them as slaves. But this, although perhaps literally within the provisions of the statute, is obviously not within the intent and meaning." Why perhaps, literally within the provisions of the statute? No reader of the English language can read the provisions of the statute and entertain a doubt that they extend literally to the case—why not within its intent and meaning? Never was an obiter dictum of a judge more peremptory or more gratuitous! There is not a word, not a letter in the statute to authorize the intention of shielding from forfeiture a slave trading smuggler, because the captain was not her owner. The forfeiture attaches to the action, the violation of the laws against the slave trade, and to the instrument used for that violation, without inquiring to whom that instrument belongs. The mischief to be remedied by the law, was the introduction of African slaves into the United States.—The vessel is the instrument with which the violation of the law was effected, and by which the forfeiture was incurred. Neither justice nor policy could require an exemption from the forfeiture, because the captain in possession of the vessel and employing her in violation of the law, was not her lawful owner. The judge says, there are reiterated decisions of the American courts, that a capture made under an illegal American outfit is not belligerent, but void, and producing no change of right; and from this it followers, that Smith had no interest on which the forfeiture inflicted by law for this offense could attach. The judge names no one of these reiterated decisions, and we have seen that the only one specifically cited by the District judge, in support of the same principle, was a clear authority against it. There were no doubt decisions that captures of friendly foreign vessels, by American privateers illegally fitted out in our ports) and bearing South American commissions, did not so divest the property, but that it might be restored by our courts, in controversy between the captors and the original owners—but that the laws of the United States, prescribing penalties of forfeiture for crimes, should be violated with impunity, because the slave smuggler had stolen the instrument with which he committed the crime! No! l trust the Antelope is, and will for ever remain, the solitary case in which such a principle can claim the sanction of the courts of the United States!

The wild and glaring inconsistency not only between the opinions and decrees of the District and Circuit Courts of the United States, in the case of the Antelope, but between the opinions and decrees of each of those Courts and itself discloses in crystal transparency an internal conflict of mind between the duty of suppressing the African slave trade, and the desire to maintain and fortify the institution of slavery, little auspicious to the composure of justice or to the impartial exercise of the judicial faculty. Both the Judges profess a sentimental abhorrence of the trade. The Circuit Judge discusses at great length the question whether the slave trade is contrary to the Law of Nations. He admits that the British Court of Admiralty have of latter years asserted a doctrine of this nature; but after commenting sarcastically upon the motive of the British Judges and Government, and descanting upon mental dependence, and interference with the family concerns of others, in which no nation has a right to volunteer, he quotes a passage from the decision of the British Court in the case of the Amedee [Actor, 240,] and says, "I must until better advised assume an opposite language."

" I feel," says he, " no inclination to justify or even palliate the trade. I thank God I have lived to see its deathblow. But it was from religion or policy, not from national humanity, that the blow was received. On the contrary, British policy struggled against the effort to abolish it, and all the efforts of the Quakers, the Methodists and Mr. Wilberforce proved abortive until the horrors acted in St. Domingo opened the eyes of Government to consequences that it became political to guard against. From that time, philanthropy like the pent up vapor, began freely to diffuse itself, and extended its spread even to the British Court of Admiralty."

"That slavery, (says again the Judge of the Circuit Court,) is a national evil no one will deny except him [he] who would maintain that national wealth is the supreme national good. But what" ever it be, it was entailed upon us by our ancestors, and actually provided for in the constitution first received from the Lords Proprietors under which the southern colonies were planted. During the Royal government it was fostered as the means of improving the colonies, and affording a lucrative trade to the mother country, and however revolting to humanity, may be the reflection, the laws of any country on the subject of the slave trade are nothing more in the eyes of any other nation than a class of the trade laws of the nation that enacts them.',

Both the Judges acknowledge the inherent, inextinguishable wickedness of the trade, and both have an invincible repugnance to consider it contrary to the laws of nations. The Judge of the District Court admits that the doctrine that Africans taken at sea must be presumed to be free, until proved to be slaves, may be correct in England, but cannot entirely recognize it in the State of Georgia. The Judge of the Circuit Court, repudiates it altogether—says he must until better advised hold opposite language— assails with great bitterness the decision of Sir William Grant in the case of the Amedee: thanks God that he has lived to see the death blow of the African slave trade; but allows no credit to Great Britain on the score of humanity for striking it. No! it was religion or policy. The horrors of the scenes in St. Domingo had alarmed the British Government for the safety of their West Indian colonies, and so the pent up vapor of philanthropy was let loose and extended even to the British Courts of Vice Admiralty. As for slavery, every one knows it an evil, but it was entailed upon us by our ancestors; it was provided for by the constitution granted by the Lords Proprietors; it was encouraged from motives of policy by the Royal Government, and what right has any one to question our practice of it now? It was once lawful— who shall say it shall not be lawful forever ?

Upon the tone of this judicial argumentation I shall not indulge myself in commenting; but in comparing the spirit of the reasoning of these two judges with that of Sir William Grant in the decision which they reject and oppose, how stands the account of moral principle ? The reasons of the British Judge glow with the flame of human liberty, those of the American Judges are wedged in thrilling regions of thick ribbed ice. Vituperation of the slave trade in words, with a broad shield of protection carefully extended over it in deeds. Slavery acknowledged an evil, and the inveteracy of its abuse urged as an unanswerable argument for its perpetuity: the best of actions imputed to the worst of motives, and a bluster of mental energy to shelter a national crime behind a barrier of national independence; these are the characteristics exhibited by American in collision with British Admiralty Courts. Or again, examine the respective opinions and decrees in their beating upon the trade itself: those of the British Court went directly to its suppress sign; those of the American Courts, to its encouragement, security and promotion. The British Court has at least the consistency of harmonizing practice and profession. The American Courts profess humanity and practice oppression.

The decrees of the American Circuit Court are if possible more extraordinary than its opinions. After deciding that the Negroes taken by the Arraganta in the Antelope, and from the Portuguese vessels shall be delivered to the Spanish and Portuguese Vice Consuls, because he must maintain that it is A question altogether inter altos, whether the Spanish and Portuguse nations had authorized the traffic in which their vessels were engaged, the Judge adds: " Not so as to the American vessel. I have a law to direct me as to that, and the slaves taken out of her must be liberated." The laws had literally directed that all the Negroes whom John Smith had attempted to smuggle into the United States for sale, should be liberated, but the Judge had pronounced that this was not its intent and meaning. But now another difficulty occurs. No competent witness can tell which of the surviving Negroes were taken from the American vessels, which from the Portuguese vessels, and which from the Antelope. The individuals belonging to each of the three vessels cannot be identified. How shall he distribute his doom of freedom and of slavery among the prize goods and the pirated merchandise of John Smith? With a full consciousness of the gross and glaring injustice of the decree he says, THE LOT MOST DECIDE ! Where did he get his law for that? He says he has a law to direct him, and he flies in the face of that law to enslave hundreds and emancipate sixteen human beings on the cast of a die. Let me do no wrong to his words—hear them.

In examining the claim of Capt. Jackson to salvage, the judge becomes exceedingly doubtful whether it is a case for salvage at all, and enters a caveat against his own decree for allowing it. He thinks if a Venezuelan agent had interposed a claim to the property as prize of war, he should have been still more puzzled how to shape his decree than he was. He does not appear to be at all aware that if a Venezuelan agent could have claimed the property as prize of war there could have been no Spanish claimant to whom it could hare been restored. The decree of restoration to Spanish owners was therefore ipso facto equivalent to a decree for salvage, the quantum of which alone remained for consideration. His caveat against his allowance for salvage, was therefore a caveat against his whole decree, and thus far was an approach to the definition of justice—Jus suum cuique.

The decrees of the Circuit Court (for there were two) like the state of mind disclosed by these opinions of the judge, were a chaos of confusion. By the first, delivered on the 11th of May, 1803, the Decree of the District Court, so far as related to the vessel, the Antelope, was affirmed, and so far as related to the slaves imported in her was reversed and annulled. The District Court had decreed the restoration of the Antelope to the Spanish claimants, on the ground that she had not been forfeited to the United States, for the violation of the laws for the suppression of the slave trade. She had not been forfeited, though taken by Captain Jackson in the act of smuggling into the United States for sale near three hundred Africans, and though the law literally declares all Africans thus imported free, and the vessel in which they are imported forfeited to the United States. From this forfeiture the Decree of the District Court, exempted the Antelope, because before the commission of this smuggling piracy she had been taken by another act of piracy, from certain virtuous Spanish slave traders, whose property in her, and consequently in the slaves with which she was laden, was too sacred to be divested either by piratical capture or by the laws of the United States against the importation of slaves, or against the African slave trade. With this part of the Decree of the District Court, the judge of the Circuit Court concurs. The laws of the United States for the suppression of the execrable slave trade, and against the importation of African slaves are baffled, defeated, prostrated, nullified— three hundred wretched victims of that trade, are deprived of the benefit of that just and generous provision that the very act of importing them shall operate in their favor as an act of emancipation. They are re consigned to hopeless and perpetual slavery, from mere reverence for the property of Spanish slave traders! Well might such a decision divide the opinions of the judges of the Supreme tribunal when it came up to them for adjudication. Well might Chief Justice Marshall declare that upon this point no principle was settled, and well may every friend of human liberty, and every sincere wishes for the suppression of that detested traffic indignantly deny that the case of the Antelope can ever be cited as authority for any such principle of law.