Hartford Courant from Hartford, Connecticut on January 16, 1840 · 2
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Hartford Courant from Hartford, Connecticut · 2

Hartford, Connecticut
Issue Date:
Thursday, January 16, 1840
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1 THE COURANT. B&BTFOBD t TMsTBSlttAY, JTANIXAKTr 16. DAILT COCRAWT TRI-WIKKLT " $5 rR JlNSPM. $2 " " TnB AFRICANS ? THE AMI STAB. i -.r, FromtU Neto-Havtm Palladium. , ; DECISION OF THE COURT. His Homob, JUDGE JUDSON, has kindly permitted us to publish his very able Decision, w the case of the Africans, from his own manuscript. . ,roui district Cocrt of thb U. S. . District or Cossectxcct, Jan. 7, 180. J " vs. Libel for Salvage. The Sckoe"tr L'AUtad. On ths 26th of August, 1839, Lieut. Gedriey, commanding , the brig Washington, of the V. S. Navy, seized and brought into the port of New-London, in this District, the schooner Amistad, with a cargo of goods and 49 Africans, then claimed as slaves by Don Pedro Monte and Don Jose Ruiz, subjects of her Catholic Majesty the Queen of Spain the said Monies and Row also being on board the schooner. On the arrival of the schooner within this District, New London being the first port into which the schooner was brought after her. seizure, a libel was filed here by Lieut. Gedney, the officers and crew of the brig Washingtou, claiming salvage. At a special District Court, held on the 19th of September, . other libels were also filed in the following order: That of Jose Roiz That of Pedro Montez That of Henry Green and Peletiah Fordhani A libel in behalf of the United States . by the District Attorney first, claiming that the vessel, cargo and slaves be restored to the owners, being Spanish subjects and, secondly, demanding that the negroes be delivered up to the President to be transported to Africa that of the Spanish Consul claiming Antonio. ... And on the 19th day of November another libel was also filed, by the District Attorney, in favor of the United States, alledging that the Spanish Min- , ister had, in pursuance of the treaty between the United States and Spain, demanded of the government of the United States, the restoration of the Schooner L'Amistad, her cargo, and the slaves on board for the owners thereof, being subjects of Spain.' The ordinary process of attachment issued, and the schooner, goods, and Africans, so alledged to be slaves were taken into custody by the Marshal of the District, for adjudication upon these various libels and claims. At the District Court in November, a part of these Africans, , by their counsel, filed a plea to the jurisdiction of this Court, eUedring that they were born in Africa; that they were free, and that they were seized within the territorial jurisdiction of the State of New York., claiming to be set at liberty. This plea is note withdrawn, and an answer is filed alledging, substantially, as follows: That Cinquez, Banna, 1st., Dainma, Fawni, . 1st., Phumah, Connoma, Choday, Bunhah 2d., Baah, Cebba, Fooniaj Kimbo, Peeah, Bangyah, Saah, Coelee, Parte, Mona, Nahquoi, Quato. Jesse, Con, Fawni, 2d., Kenna, Laumamee, Fajana, Jebboy, Fauguanah, Bewnu, Fawnu, Cherkenall, Gubbo, Corre, Seme, Kene, Majera, are ' all Africans, entitled to their freedom ; that the said schooner was at anchor near Culloden, Ft., within the territorial jurisdiction of the state of New York, and that part of said Africans, as named in said plea and answer, were on shore on Long Island, within the jurisdictional limits of the Slate of New York ; whereupon they say that this Court hath no jurisdiction over their persons, praying to be discharged. Lieut. Gedney now appears and pursues his claim for salvage. Henry Green and Mr. Fordham appear and pursue their claim for salvage. The District Attorney of Connecticut pursues the libels filed by him in behalf of the government of the United Slates, and in behalf of the Minister of Spain, for a restoration if die ship, cargo and slaves, under the treaty between Spain and the United States. In the discussion of this case have been involved numerous questions, of great importance, requiring, as we have seen, industrious examination and patient deliberation. It has been my endeavor to afford ample time for tliia investigation ; and the ability with which these questions have been discussed at the bar, must satisfy all, that every thing which talent and learning could accomplish, has been done. It devolves upon the Court to dispose of these various and complicated questions, in such manner as will seem to be demanded by the laws of the land, and of this the responsibility rests on me. That responsibility will be met, and when discharged according to the dictates of my own conscience, I shall be relieved from its further perplexities. It will be a satisfaction, while doing this, that neither party " or claimant can be predjudiced by my determination, because the law secures an appeal to the highest tribunal in this coun- try, where my decision may be both reviewed, and if wrong, corrected. It is then of little importance to the persons in interest, what may be the dtemutmr o Coon, for l ca.ee Xe '; this will not and should not rest upon a single trial, without review before the Supreme Court, in whose decision all would be satisfied. The case is now only important to those immediately interested, but there are involved principles important to uie nation and the world. If a few months have elapsed since this cause has been pending, it has been owing to circumstances beyond my control, but this surely has produced no inconvenience or suffering to thot,n in custody. They have all been humanely treated; liberally fed and clothed by the government, into whose hands they have been providentially cast. Whatever may be the final result of this case, so far, it may by safely said that no one step has been taken which could have been avoided.' I do not stop to say that it is my wish to escape the responsibilities which devolve upon me, neither would it be just u myself to say that I have not been deeply anxious to investigate this case and decide it according to its true merits. The first question, to which my attention is called, is that of jurisdiction. Although the first plea has been withdrawn, yet the allegations in the present answer require an examination of the evidence with that view. If indeed the evidence does not show a case, of which the Court has cognizance by law, it will be my duty still to dismiss it. ; In point of fact where was the Amistad seized ? It will be recollected that at a former District Court, the Attorney of the United States was directed to examine this place, in company with the Counsel on the other side ; this has been done, and on a careful examination of the evidence, I find as matter of fact, that the Schooner lay in 3 1-2 fathoms of water, where the tide ebbs and flows, not less than half a mile from the shore, off , Colloden Point, five or six miles from Montauk; about twenty-five miles from Sag Harbor; eighteen miles from New" London, not in any known harbor, bay, river or port The jurisdiction of the District Court is t wholly - regulated by statute. By the laws of Congress, each District Court has exclusive jurisdiction oyer all seizures made within that District. A vessel seized in one District, cannot be carried into another for adjudication. Another branch of the statute provides that where the seizure is made, on the kigk teat, the vessel seiz-ed, may be carried into any District in the United States, and must be" tried where first carried in. Was the Schr. L'Amistad seized on the kigk teat! The answer to the question depends on the legal signification of the term kigk teat, as used in the Judiciary act of 1789. Here I have no new path to make out for others, but only to adopt the language of learned jurists who have gone before me and yield my assent to determinations already made. To the former I can. Uen with! respect, but by the latter I am bound to yield obedience, as to die setded law of the land. Perhaps a more conclusive argument cannot be found, than , that of Mr. Webster, before the Supreme Court, in the case of the U. States, vs. Bevins, (3 Whea. 336.) This is the language: "The common and obvious meaning, of the expression High Stat, U also the true legal meaning. The expression describes the open ocean, where the dominion of the winds and the waves prevail, without check or control Porta and Havens, on the contrary, are places of refuge, in which protection and shelter are sought, from this turbulent domin- . ion, within the inclosures and projections of the land. "The Aw teat, and kavens, instead of being of similar import, are always terms of opposition. The kigk teat, imports the urunclosed and open ocean, without the m terra. Pont and kavent are not parts of the kigk teat, they are within the bodies of counties." This lucid exposition of the term kigh teat, accords with all the learned commentators, ancient and modern. It may be added, mat the place must be where the tide ebbs and flows, and the seas extends, to low water mark ; but does not extend - to harbors, pom er rivers. -' - ;--- - In this case the seizure was not made in any harbor, port, bay or river. There is scarcely an indentation on the coast between Montauk, and Colloden Point. Had this schooner been seized within a port or harbor like Sag Harbor Black Rock Gardner's Bay, the aspect of the case would have been changed. But this was in fact made many miles from any known port or harbor. The place of seizure was therefore in the open ocean, " where the dominion of the winds and waves prevail without check or control.' That it was near Montauk hat it was less than one mile from the shore, does not vary the legal result The well known position of Montauk adds ?Wiveness to the argument We all understand from cnudaood, that Montauk is a point of land projecting into the h waters of the open ocean have been beating there for waw AUtcontinue dnrigI time to come. The -... Atlantic roll over in constant succession, the spot J Thi.ot,. whn ized by the Washington. here, and elsewhere, as T w'"?' JudJe B7' ?mmeat viU and compels me to toSfiSZ " emtoP doubt Sloop Abh. (lstof Mason, seoA w.T8 f Cl"V The Court in the 1st Circuitand WfcmnTd 1J Ciwuit ( ion of Judge Story, as follows : T"1 uot OP1 "Iagre.(.ay.the learned Judge,) that&tCourtbeWhd : no cognizance of the cauee, if the seizure, on which the libel w founded, was in the port of Portland, for the judiciary act of 1789, ch- 90. S. 9, gives rcJu)'e jurisdiction of all seizures made within any district, to the District Court of tuck district. "Concurrent jurisdiction in the District Court only, where the seizure i? made on the high teat. But the objection here fails in point of fact. - - " The seizure of the Abby) was first made about 5 miles off Cape Elizabeth, and was therefore, on the high teat, since all water below the line of low water mark, on the aea coast, are comprehended within that description; and where the tide flows, the waters to high water mark, are also properly, the kigkteat." ........ .... . . Will it be seriously urged, that because the L'Amistad had passed Montauk light, that she was not on the kigk teat ? Suppose she had actually been 25 miles further to the N. W. ;n T-stncr Talnn1 Annnsl aiUh Tsma Talnnrf on the S. Connecticut on the N. Gardner's Island, Fisher's Island, Plumb Island and Block Island to the East, would she have been, even men, within the bodv of any County T ' . For all purposes of Admiralty Long Island Sound la to be considered kigh teat. " ' .' In the case of the Elizabeth, 1st Panics np. rsland Sound does not belong to either OonnectU cut or JVYto York, nor to any Vistrict in either of tkote Statet :" ? It h hi-on nronl matter of law. that the Africans on shore at the time the vessel was seized cannot be subject to the admiralty power of the Connecticut District, nor any other ad miralty jurisdiction. ?. ., r , , ' ; t The onlv reply which need be given to this claim, is, that them nn ihnni were there for a stecific and a teronorarv oh. ject, to furnish the vessel with water and provisions for the con tinuance of their voyage to bierra Aeoiie. I bey were stiu -attached to the Schooner, in the same manner as those who continued on board. The case seems not to require any distinction of this sort, and none can be recognized. 1 rvent. 379. If the admiralty has cognizance of the principal thing, it has also of the incident, though that incident wum not, oi itseu, ami u ii suna ior a principal wins, within the admiralty jurisdiction. " (3 Blackstone, 108 1 Com. XJig. 3o, 1 Uie v. o.) ' ' - .:" Having thus disposed of the question of jurisdiction, T proceed to the consideration of the merits of the case. ' r ' Surely, then', the waters upon either side of Montauk can not be deemed within the exclusive jurisdiction of the District Court of New York. Whether she was within the trrttortoJ . jurisdiction, in another sense, is not important to this question. The question is, was she within the ezcluttve jurisdiction ot the -District Court5 of that State. . She was not To say other wise, would be a perversion of the plain provisions of the Act of Congress, and an utter defiance of all authority. Thin cannot be done. It is the business of this Court to pronounce what the law is. These principles being settled, and applied to the facts of this case, the consequence follows, that the seizure cf-the L'Amistad was made on the High Seat, and hav- ing been first brought into die District of Connecticut, the ju- risdiction of this Court attaches to the whole subject matter. The libel of Thomas R. Gedney and others is properly filed here. ; - 1 - . This opinion does not conflict with the opinion of the Cir cuit Court, as pronounced in September last I refer now to J that part ot the case which was Detore tne orana Jury, rela ting to the murder ot uapu rerrer. xnat case turned upon the national character ot me vessel. , A tie jl. Amistad was owned by a Spanish subject she sailed under a Spanish flag , -wBcommanded by a subject of the Queen of Spain and ' the homicide was committed by Africans, on board this foreign vessel. JXo Court in the United States could bold jurisdiction of that case. ' The laws of Spain alone could reach the act In the administration of criminal law, the offence mast be punished where committed. It is an universal rule. A crime committed in England cannot be tried here. A crime committed in one State, is no offence against the laws of another State. ' "- ' - A crime committed in one county, cannot be tried in another county. Had this schooner been an American vessel, the Court would have held cognizance of that case. , We approach now the merits of the case, and the facts involved may be stated in few words ; and about these facts there is little diversity of thought A Spanish vessel owned in Cuba, proceeded from thence to the coast of Africa, and having procured a cargo of native Africans, returned and landed them near Havana, where they were put into a slave mart for sale. Within fifteen days from the time of landing, Jose Ruiz and Pedro Montez. subiectsof the Queen of Spain. and residents of Ouannia. in the Province of Puerto Principe. on the Island of Cuba, being at Havana, purchased fifty -four of these Africans. The schooner L'Amistad, then lying in the port of Havana, possessing rightfully the national character of a Spanish vessel, owned and commanded by one Kaymond Ferrer, master, and regularly and lawfully licensed in the coasting trade, between the ports of Havana and Guannja, and being laden with Spanish goods for the latter port, the said . Ruiz and Montez put on board thereof, the said fifty-four Af ricans, with permits from the Gov. of the Island of C uba, to be : transported as treiglu to the said port ot Uuanaja ; and the said lvmv. nrn rvlnnt tnnte pttM& ah ; grounds ox suspicion turn we jvitiibuha uclu um any -wise connected wun tne oncinai iuipoxra.i.uu ui uicbc aiiicoub, i wholly excluded from the case. Three days from Havana, the negroes rose upon the vessel and killed the master and cook, and by force took command, and after being sixty -three days upon the ocean, she came into the waters of the United States, in a condition perilous to the vessel, and the lives of Ruiz nnd Montez and all others on board. Being found as heretofore stated, the schooner and all belonging to her were seized by the brig Washington, and from thence was first brought into the port of New London, within the district of Connecticut ; and the schooner, cargo, and Africans now claimed as slaves, are here libelled for salvage, by Lieut Gedney, &c. Having stated these various claims, and the circumstances of the seizure, I will now proceed to the consideration of each claim, somewhat in the order in which they stand upon the record. - I. The claim of the officers of the brig Washington. In considering and disposing of the claim, it may not be improper to divide it into two parts. 1st. The vessel and goods. - f i j 2d. The Africans alleged to have been the slaves of Messrs. ; Ruiz and Montez. , 1st The claims to salvage for the vetsel and goods, stands upon ground, almost beyond question. The services rendered by Lieut Gedney were not only meritorious, but highly praiseworthy. : They were such, as would entitle the seizor to his proper allowance. The vessel was at the mercy of the winds and the waves. She was in the possession and under the command of these negroes, who were utterly ignorant of the science of navigation without law or order without cominis-sion or any lawful authority, guided alone by their ignorance and caprice just on the point of sailing for the coast of Africa, and yet without the possibility of conducting the vessel in safety for a single day. The seizure under such circumstances, was meritorious and will entitle the seizors to an adequate compensation, unless something shall be found in the case, to oust them of this right In opposition to this claim, Pedro Montez and Jose Ruiz, al-ledge that they, each of them, own a part of these goods, and the Minister of her Catholic Majesty in behalf of the owners of the schooner and the residue of the goods on board, alledges that the whole were owned by subjects of the Queen of Spain, and that under the Treaty, between Spain and the United fctates, a restoration, entire, should be decreed. Here it may be remarked, that Montez and Kuez have ceased to prosecute their claims in person, and the Spanish Minister comes in the name of his government, basing himself on the treaty of 1795, for them and in their stead, claims the restoration, entire of the vessel, the cargo, and slaves. There are two articles in the treaty of 1795, which have some bear- ingon this question. , , , The 8th Art " In case the subjects and inhabitants of either party, with their shipping, whether public and of war, or pri vate and ot merchants, be forced through stress ot weauier, pursuit of pirate or enemies, or any other urgent necessity, for taking of shelter and harbor, to retreat and enter into any of the rivers, bays, roads, or portB, belonging to the other parry, they shall be received and treated with all humanity, and en-' joy all favor, protection and help, and they shall be permitted to retresn, and provide themselves at reasonable rater, with tu t nals and all things needful, for the subsistence of their persons, or reparation of their ships, and prosecution of their voyage ; and they shall no ways be hindered from returning out of said porta or roads, but may remove and depart, wnen and whith er they please, without any let or hindrance. Ark avi4 vanj suau cuuiui .'T u uic-aiw u uicu . power, to protect and defend all vessels, and other effects, be- otn Art " Each party shall endeavor, Dy ail means in their longing to the citizens or subjects of the other, which shall be within the extent of their jurisdiction by sea or by land, and shall use all their efforts to recover and cause to be restored to the right owners, their vessels and effects, which may have been taken from them, within the extent of their said jurisdiction, whether they are at war or not with the power whose subjects have taken possession of said effects." A treaty is binding upon the two nations making it, and the same becomes a part of the laws of each country. It is to be expounded by the same rules of construction as J5T. PPlid to other laws j and it becomes the duty of the Judicial department as well as the Executive of each country, to carry them into effect The fair and liberal construction of these two Articles must be applied to the schooner L'Amistad and the goods, for those are the effects of the subjects of Spain. And by effects, 1 understand their lawful property. It was the duty of Lieut Gednev, by all means in bis power, to protect and defend this vessel, and use all his effort to recover and cause to be restored to theit rightful owners, the schooner and her effects, because by an urgent necessity, pro- , vided for in the 8th Article, she had taken shelter in our waters, and now, at reasonable rates, this vessel and her effects must be restored ta their righful owners. But it cannot be supposed, that in rase of a demand for a restoration, a literal construction should be given to this trea ty. Suppose the hull of a vessel coming in like this, had been so far damaged, that without immediate repairs, she could not be kept above water, and these repairs were made, cannot the mtterial men, (as they are called,) libel the vessel in Cour of Admiralty here, and recover these repaira t Certainly. I must be, as the treaty provides, " at a reasonable rate." So i?i this case, the services in saving of this vrr?sel, must be compensated, " at a reasonable rate. The manner of doing this will be shown hereafter. r. It revolts then, that the seizors are entitled to salvage. This lien is placed upon the vessel nnd her effects by the laws of all nations. It is founded on the broad principles of justice, acknowledged by all, and the treaty stipulation m entered into, with this hen, which cannot be considered as inconsistent with die treaty. The decree will be, that the schooner and her effects be delivered up to the Spanish government, upon the payment at a reasonable rate, tor the services in saving this property from entire loss. An appraisement will be ordered, and one third of that amount and cost, will be deemed just and reasonable. 1L The next question is, can salvage be allowed upon the slaves t , There are insuperable objections to this portion of the claim. There is no foundation here laid for a decree in personam. The decree, if at all, must operate in rem. That is, the salvage must be considered as a lien upon the slaves themselves, and the amount to be decreed must be raised out of them, as out of other property. . . , . Here then I find this claim hedged about by fixed and known laws, over which it would be impossible for me to leap. I have heretofore decided, in the very outset of this case, that these alledged slaves cannot be sold. ' There is no ; law of the United States, nor of the State of Connecticut by which title can be given to them under any decree of this Court I am still confirmed in that opinion. It is impossible ! Can a decree be predicated upon a supposed valuation, to be ascertained by an appraisal 1 There is no authority in this Court to cause such an appraisal. Who can appoint these ap praisers T Who can administer to them an oatli I And above all, by what rule could their estimate be formed T Are they to be estimated by - their value in the District of Connecticut 1 That is not one cent. The laws which I am bound to administer, can recognize no value in them. Can the' appraisers travel into other States or countries, to seek their value 1 Surely not ; If a decree should be framed, it would be wholly nugatory, inoperative and void. This the Courtis never called upon to do. When a decree is made, it always'; pre-supposes that the Court making it possesses the power of . enforcing it "' This part of the claim, therefore, will be passed over. " ' " Next comes the libel of Green and Fordham. 1 This claim is rested upon the idea that they had taken possession of this vessel. ,, The- facta proved, will not sustain this claim. -It . appears in evidence, that these claimants found part of the Africans on shore, getting water and provisions. They traded with them and sold them two dogs, for a doubloon each, and -then agreed to be there the next morning and take the vessel to their place. This was the understanding of Capt Green, but as the evidence now appears, it was not the understanding of the negroes. Their hearts were set on Sierra Leone, and , nothing short of sailing towards the sun, would serve their purpose. They had killed the captain and cook, to go to Sierra Leone. Thev had neriled their own lives for Sierra Leone, and still Sierra Leone was on the lips of Cinquez. I , think the actiont of the white men on the beach, evinced that they so understood thU determination at the time. Otherwise they would not have had occasion to whistle off their dogs, when they had received for them the doubloons in hand. -The result of the best examination which I have been able to bestow on this part of the case, is, that the libels of Messrs. Green and Fordham be dismissed. The two great questions still remain to be settled. Shall these Africans, by a decree of this Court, be delivered over to the Government of Spain, upon the demand of her Minister as the property of Don Pedro Montez and Don Jose Ruiz? " But if not, what ultimate disposition shall the Government of the United States make of them T i The other questions, in importance, cannot be compared with diese. , ''" Here we have, Her Majesty the Queen of Spain, by her resident Minister, at the Court of the United States, unequivocally demanding for her subjects these Africans, as their property, in the fulfillment as he says, of treaty stipulations, -solemnly entered into by this nation. These Africans come in person, as our law permits them to do, denying this right . . They say, that they are not the slaves of Spanish subjects, and are not amenable to Spanish laws. We have also, the humanity of our own laws, ready to embrace them, provided we are not compelled by these treaty stipulations to deliver 't them up. i , Upon the first of these questions, all absorbing as it is, I am called upon to pronounce an opinion. And what I have now to say applies to Cinquez and others, who have filed their answer to the claim, on record, not including Antonio. Shall these Africans be decreed to the Spanish Government? What is the object of the demand made upon the President by the Spanish Minister? Not to have them transported to -Cuba for punishment, but because they lire the property of Spanish subjects their effects, or merchandise their property. I beiHn here bv finding- certain facts., which necessarily must be part of my decree, and Upon which it must be based. l 1 hop nr. t Vu- t i ( t Vi u t T hnH n.,d in thl. r,HC. - ' In lul& Mrl km wvv.Mi..'.vi v.& wiuun. Xnown and ' distinguished ; Creoles, who were born within Spanish domin- ion; hadinos, who have been long domiciliated on the island, or sufficiently so, that the laws of Spain operate upon them ' or in other words, embracing those who owe Spain their allegiance ; and lastly, Bozalt, embracing all such as have but recently been imported from Africa. The negroes now in question were all born in Africa they were imported to Cuba by the slave traffic, about which Montez and Ruiz had nothing to do they were put into abaracocn near Havanna, and after remaining there not exceeding 15 days, Montez and Ruez brought them to thtJ schooner Amistad . as their slaves, and put them on board for Guanaja. Conse- - Suendy, I find these negroes to be Bozals; they were so at ie time of the shipment , , ( . , The demand of the Spanish Government, is, for these . Bozala to be restored to them, that Montez and Ruiz may have them as their property. To justify this demand, and require this government to restore them under the treaty, these negroes must not only be property, but Spanish subjects must have a title to that property. In other words, Spanish subjects must own them must come lawfully by them they must have , lawful right to hold them as their own. Suppose a slave should be demanded of us, by the Portuguese Government and it should appear in evidence that the slave in fact belonged to a ' citizen of South Carolina, we could not give him up to Portu- '-gal. Although he mavbe a slave the Portuguese havenotttte in him. They cannot demand, nor we cannofsurrender. The -right of demand and the necessity of surrender rests on the tide to the property. r Property and title both are to be made out In all cases wl ere property and title ere proved to be in Spanish subjects, the Treaty is imperative, and at all hazards it must be surrenderel. ?J . ' V : ; The obligations are solemn, and war. might be the conse- '.. quence of a breach of this duty on our part I go up to the letter and spirit of the treaty both, but I do ' not step over it merely because the demand is made by a high contracting power. The demand must be lawful. The Mmister has demanded the schooner, and suppose in point of fact it should turn out that the schooner belonged to a subject , of France, instead of Spain, can we deliver it to Spain ? Surely not How stands the case here. The government of Spain, demand of us, under their treaty, a restoration of tlie.se . negroes, and we ask them for their title. It is a very well settled principle, here snd elsewhere, that the party demanding restoration, must show his title Tke onus probandi lies on him. Aware of this rule of law, the Spanish claimants send to me their evidence of title. And what is that document A deed ; a bill of sale a transfer? No. It is a permit a license a past signed by the Governor General of Cuba for Don Pedro Montez and Don Jose Ruiz to trausport 54 Ladinos to , Guanaia. and this is all! This embraces the whole evidence j of property and title bodi. 1 In point of fact, these are not Ladinos. They might be lawfully sold and carried to Guanaja. j These negroes are Bozals and not Ladinos. Here then is the point the point upon which this great j controversy must turn ! ! To show that it is so, I shall be obliged to recur to the laws of Spain, as the same are here proved, because those laws make a part of the caRe itself. "They are to be proved in the . courts of the United States as matters of fact This has been done thi inauiry. and this court is just as r competent to judge of the effect of a foreign law, when thus J proved, as of a law of the United States. -l I find then as matter of fact that in themonth ofJune, 1839, ( the law of Spain did prohibit under severe penalty the importa- j uuu uiw v.ut.in til lirgroes I It 1 1 1 1 jrv . v . - 1 " - imported in violation of that law, and be it remembered, that uuu luro l.uo oi nesrroM from '" p-"-" bv the mime taw of Sna! ch imrjorted negroes are declar- - ed to be free in Spain. This accounts for the declaration of ( the Spanish Consul " that if these negroes should be teturned I to Cuba, some of the leaders might be punished, 6 none of i tkem could be made slttret." This declaration is in exact con-. formity with the law of Spain, so far as the matter of slavery is concerned. They could not be slaves there, because the 1 law declares them free. They were Bozals, and not slaves. ' This declaration is from a hiffb government functionary of Spain. Why then should the law be doubted by me ? I do . not doubt it I do expressly find it to be such. If there had , been any doubt as to what tie law of Spain is, I ask, would : not the Spanish Minister resident at Washington, have com-K municated that law to this government so that it might have f been sent here ? 4, We are bound to believe, that the Minister of every foreign ; country, brings with him the laws of his sovereign, and is able L on theVhortesi notice, to make those laws known to us. when questions may arrise. Between nations, it is not required that I every matter of form should be strictly complied with. In we intercourse of friendlv nations, the tubetanet is all that is re-l quired. Why has not the Spanish Minister told us that a law exists, hy which Boial negroes are slaves in Cuba? Why " has he not sent us that lawwilh claim. ' Ample time has been afforded. He knows that the burthen ' of proof lies with him, and still withhold the law if it does exist! ' j How can he expect an American Court to decree that these j negroes are property, while he omits to produce the evidence which make them such. In reply it may be said they were in possession of Spanish subjects. Bat possession is only one indicium of property, and that has been rebutted by the proof that these are Bozal negroes, and cannot be made pro perry, by . any machinery of sale, or transportation. , This brings me to the question of title in Montez and Ruez, who now claim them through their government Though they do not come into Court in jrson, yet they do come in the majesty of their Sovereign. They need not come in person, and if they do, they may stand aside and put forward the shield of regal authority as they do in this case. But this establishes no title to property. Suppose I admit that slave are property, yet Montez and Ruez must possess the title in themselves. They have furnished no proof of " payment they have shown no bill of sale, no witness ha sworn that he was present when these negroes were sold. - -They have not shown us from whom they derive their title. It is the naked possession on which they rely. When the right is disputed this is not enough. ' ; Suppose a gentleman in Mississippi hires a slave of his neighbor for one year, as a travelling servant and while in Kentucky sells him ? ; He had the possession too, but he con-veys no tide, for it is in the law of every country, in the civilized world, that a man must have tide before he can grant it to another. Were a gentleman of N. H. to rent me his bouse and give me the po session, and another person from Havanna should come here and take a deed of that house from me, ke would gain nothing by the grant, for die simple reason that I had no right to grant ; This is so plain that the feeblest intel- , lect cannot but see it -f How does the Spanish Minister fill up this chasm in the evidence ? How does he link together this chain of title ? By nothing else, except the Governor General's Potto, and this has before been commented npon. iVoio that official document is to Serve the double Dnroose of nrovin? nronertv and title both; and yet when we lock on it Benin, and apply to it our judicial test if the expression may be allowed, we find that instrument still is lor Ladinos, and not Bozalt. It contains on its face an untruth. The Governor General has not given a pass for these negroes ! And, consequendy, these Bozals stand on the deck of the L'Amistad without any patso whatever. ; , i For a familiar illustration of this legal result, take, if you please, a bale of goods, for we will now call them goods, and have it shipped and invoiced at Liverpool,: as cotton prints v they are entered here as cotton prints, or smuggled in, and then sold to an innocent purchaser, when it is discovered for . the first time that "broad cloths" compose the package. These broad cloths may be taken from this innocent purchaser, libelled and forfeited. Where is the remedy. (' The purchaser goes back to the seller, and he must take care of himself. Who sold these Bozals to Don Jose Ruez and took his twenty thousand dollars from him? I know not but if he does, there is his remedy. It is the sale of an article of goods to which he, the seller, had no tide. . And suppose this seller has absconded, or refuses to refund the money, it may be a hard case for Mr Ruez, and yet caveat emptor is die well known maxim, and he must set them down by the loss, as many others are obliged to do. The purchaser , must be vigilant in the investigation of the property he buys. If there had been vigilance hi this case, Ruez and Montez might have saved all their property, and the iminent hazard of life ; and this Court might have been relieved from this heavy responsibility, which has been pressing it down for these four months. , . t Why did they not ascertain that these negroes were Bozals 1 This has been the source of all their complicated sufferings, the tale of which will make the stoutest heart bleed ! Why did they not ascertain that the law of Spain had declared these objects of their purchase not slaves ? The secret is told in a word. In Cuba it is the custom to buy such negroes, and ship them as Ladinos or Creoles ; and there respectable men have grown up under the influence of this custom ; this practice is against law. . The subjects of a foreign government are presumed, however, to know what their own laws are, and when broken, they cannot come here and ask us to invade the rights of others, in justification of the breach of their own laws.. This would not be done, even there. , , , I Hence the Spanish Consul says this mode of " bona fide" selling, is carried on without notice from the local authorities. Not that the act is lawful, in itself, but only because the act is passed over. There is wealth and power on one side, and ignorance and weakness on the other. ; i The law is the same there, as I pronounce it here ; that it is not well executed, is no evidence that the law does not exist Let a case be presented to the Courts in Spain, and the proof be made as it is here ; and the result must inevitably be the same. . ' " Shall these Bozals be' given up under the treaty 1 and if so, for what purpose ? To have the question tried Aere, whether they are slaves by the laws of Spain ! I The Spanish law declares they are not slaves; it would be utterly useless then, to send them back to Cuba. It would only be a work of supererogation. Ifby their otcn laws, they cannot enslave them, then j it follows of necessity, they cannot be demanded. When these facts are known by the Spanish Mmister, he cannot but discover that the subjects of his Queen have acquired no , rights in these men they are not the property of Spain. His -Lwutd uMMt withdrawn. The very essence of his demand, consists in the supposed Spanish right of property, in the thing demanded.. That being removed, by his own taw, there can no longer because of complaint : At all events, this cannot be expected at my .hands, because " the Supreme Court have always refused to surrender property, unless tkere teat proof of title in the claimants. The same 1 rule applies equally to foreign and domestic claimants. Title must be shown in the property claimed, as belonging to the claimant or it cannot be surrendered. The positions I have' laid down here, are fully recognized in the Antelope 10, Whea-... ton 66. ..... r -. , , . ' -, ' ' The argument of the Attorney General in that case sanction- -' ed as it is, by the able opinion of the Chief Justice, affords me full confidence that I am right The strongest case which can possibly be adduced for the surrender, is the La Jeune Eugenie in the 2d of Mason. . . . . ; There a French ship, engaged in the slave trade was brought into the Massachusetts District and libelled. ' " The French Minister made a demand of the vessel, and she was surrendered by Judge Story. But in that case the property was admitted to be in French citizens. They, themselves, were claimants against . their own government, and both side agreed that it was French property. The Judge did right in surrendering it But there is a great distinction between the two cases. Here the right of property is not only the principle in contest but I find clearly that the right of property is not in any Spanish subject whatever. The cases then are dissimilar in principle. Had this case, as in that, found the right of property in the claimant I should have gone the whole length and breadth of that decision, and restored the property. This case is ample authority to that extent : and to 6how that I abide by the treaty, and that authority, I take another branch of this case. Antonio is demanded, and the proof from him is, that he is a Creote born as he believes in Spain ; he toot at the time his master was murdered by Cinquez, a slave, so recognized and known by the laws of Spain. The property in him, wa in Rayman Ferrer, a Spanish subject at the time of his death on board the schooner, and now is in his legal heirs. -.,.- Here is both property and rightof property in Spanish aub- ' jects. : I shall decree a restoration of this slave, under the treaty of 1793. . , - ; , . . For this likewise, I find authority in the cases adjudged by the Superior Court, from which I have neither power nor inclination to depart ' ' . ' : ' ' The question remains : What disposition shall be made of ; these negroes by the government of the United States ? There is a law of Congress, passed the 3d of March, 1819, which renders it essential that all such Africans as these, should be transported, under the direction of the president of the United Stales, to Africa. The humane and excellent pro-1 , visions of this Act characterize the period when it was adop- ted. Among the prominent provisions of Congress to ameliorate the condition of Africans brought away from their homes in this traftic,which is spoken of and believed to be odious, in this act of 1819. Considering the object embraced within these provisions; the statute itself must receive the most libe- '-ral and generous construction. Those technicalities of construction, which pertain to another class of acts, do not belong to this act Those rules which govern Courts in deciding on penal acts, are to find no place by the side of this statute. They must eovern no mind emo'oved in carrying out the no- ble intentions of the framers of this law.' What is the spirit ' of that act ? It is to return to the land of their nativity, all -j tuch Africans as may have been brought from thence. sThis oeing uie spirit ci mat act, i Slop not m uie mere lurms vi ic- -gislation. I do not wait to consider whedier every letter and syllable of that act has been followed, by the officers of the law. ' When the spirit of goodness is hovering over us, just descending to bless, it is immaterial in what garments we are clad to receive the blessing. 1 do not maintain this construction upon my own mere suggestion, but I shall be able to show, by a recent determination ; of the Supreme Court of the Vud Stales, that the door has already been opened, and the passage already provided, to send these men back to their own Africa. That if the aspirations of these unfortunate beings have been heard to rise for Sierra Leone, the of that country into which they have been cast ha provided the means, and already the Supreme Court have, in their pmfoundest wisdom, given a construction to that law which bids them God speed. The 2nd Section of the Act of March 3d, 1S19, is as follows: - " That the President of the United States be aid he is here-"by authorized to make such regulations and arrangements -" as he may deem expedient for the safe keeping, support; and "removal beyond the limits of the United States, of all such w negroes, mulattoes, or persons of color, as may be delivered and brought within their jurisdiction; and to appoint a prop-" er person or persons, residing upon die coast of Africa, aa ; " agent or agents for receiving the negroes, &c Ac" The 1st Section of the law of 1818, is left still in force, by the repealing clanse of this act Hence we must go to the law of 1818, and connecting it with the Act of 1?19, ascertain whether these Africans are within the spirit of this supervising care. This Act of 1818, provides " that from and after its passage, - it ihall not be lawful to import ct bring ut AST MAKKIR WHATIVER, into the United StalM. op UTrilnrlt thereof. " from any foreign kingdom, place or country, any negro, mulat-" to, or person of color, with intent to hold any such negro as a " slave, or to hold to service or labor any such person." We find these negroes here under circumstance most peculiar and complicated. - It becomes necessary to go back to the period of their leaving C uba, to ascertain whether ihey were brought in with an intent to hold to service, or to hold at slates. How was the fact when they were put on board the L'Amistad ? Was it not the in tention of Don Montez to bold his tours slam to hold them to service. Was that the same with Don Jon Ruez ? Surely they both intended to hold these negroes as slaves. We are to presume that intention continued after 1 aving Cuba, down to the time the Captain was murdered. When did it change ? It might have been suspended during the suspension of their power over these negroes, but we do learn, from the evidence, that as soon as Lieut Mead, and the Brig Washington appe ar ea, tneir intentions were still the same. And the records of this Court show that they have ever claimed to hold these slaves. It is doing them no injustice to say, that they etill intend to hold them as their slaves. From whence were they brought ? From a foreign country. : Surely it cannot be necessary, that the slaves should have i been brought direct from Africa. Their landing at Havana, for a few days, can make no difference, as the grand objects of this Act I have before shown that Montez and Ruez, never had any lawful authority, even to put the Bozal negroes on the deck of the L'Amistad. The first step was illegal, and of necessity every subsequent step was equally so. The original shipment under a false pass-. port was illegal, and that same illegality continues with them over the waters of the Atlantic, and when they come into the port of New London, the same intentions are constituted, by legal construction. ' - . My attention is again turned to the phraseology of the act of ' 1818. " It shall not be lawful to import, or bring in any man ner whatsoever, into the United States, from any foreign country, any negro, with intent to hold him as a slave." No Ian-guage more unqualified could have been adopted. " Bring into the United States in any manner whatever, any negro, to hold to service." The next section confines the acts there made unlawful, to the citizent, vessels and placet of the United States. Not in the 1st section. The bringing in here with the intention to hold to service, any where, and in any place, is the broad language of the act i ; It is by no means to be limited and eonHnedby strict construction, when we are seeking the objects of the bounty and hirmar. ity of the government Far different would it be, I admit if we were going on with a trial for the penalties imposed by this set Then indeed, we should be hedged about by the unbending rules of strict construction. Penal ttatutet must be construed-' strictly, but when there is, in the body of die same act a be-stowment of bounty, of protections, of guardianship, we reject with disdain these narrow rules. We rise above the technicalities and criticisms, which belong to punishment snd the criminal code, and adopt that construction which is more congenial with the objects of the law. It is humbly conceived diat these principles governed the Supreme Court of this Union, in the case of the United States vs. Preston. (3d Peters, 57.) : The marginal note of that case gives us the great principle of construction there adopted by uie unanimous voice of the Court ' " The final condemnation of the persons on board the Josefa Segunda, took place in this case on the 13th of March, 1820, after Congress had passed the Act of March, 1819, entitled, an 'Act in addition to an Act prohibiting the slave trade,' by the provisions of which persons of color brought in under any of the Acts prohibiting traffic in slaves, were to be delivered to the President of the United States, to be sent to Africa." That vessel was seized in the waters of the United States, by the Collector of the port of New Orleans. The seizure was never made by any one of our government vessels, under the commission of the President . The act of 1819, strictly construed, would seem to limit the action of the President to seizures made by armed vessels, under a special commission. But here, this vessel, the Josefa Segunda came into our waters, under the plea of distress she was never seized or touched by one of our armed vessels ' but the Collector of New Orleans put his foot on board, and had her libelled, and the Supreme Court decree the Africans back to their own country. In that case, there never was a , descriptive list made out ns the act of 1819 would seem to re- ; 3uire, but the Africans on board were given over to the Presi-ent There never wa any complaint made up as that act " prescribes, yet all this is considered mere matter of form, and it is made to yield to the benevolent provisions contained in the act of 1819. . ...,'., In truth, this act of 181 9, was not in being; it was not passed when the Josefa Segunda was seized, yet these negroes were found in the custody of the Court by that act, and the ' protection of the government is thrown around them. The : humane provisions and principles of the act of 1819, are thrown over them. They are made to participate in the benefits of that act and the arm of the President conducts them safely to the shores of Africa. ' ' ' ; - , . The Josefa Segunda, was a Spanish vessel she came into the Mississippi, and was seized by the Collector of New Orleans, and libeled under the law of 1807, for condemnation, as f having been engaged in the slave trade. Her plea was, that she came into our waters in distress. She was captured on 11th of February, 1818, more than a year before the passage of the act of Congress, of March 3d, 1819. - - .. . ....... v The case underwent a variety of trials, and at last was determined in January Term, 1830, by the Supreme Court (3 Peters, 57.) Justice Johnson, gives the opinion of the Court, a 'part of which I quote in this place. f - " The case of the Josefa Segunda has been twice already before this court ; the first lime upon the question of condem- nation ; the second upon the application of several claimants J to be preferred in the distribution of the proceeds. , " It now comes up upon a claim to the proceeds of the persons of color found on board at the time of the seizure, interposed by the law officer of the State of Louisiana. " The vessel was condemned under the seventh section of the act of 1807, passed to abolish the slave trade. By the 4th section of the act, the State of Louisiana was empowered to pass laws for disposing of such persons of color as should be imported or brought into that State, in violation of that law. The offence under the seventh section, on which this condemnation was founded, is not that of importing or bringing into the United States, but that of hovering on Uie coast with intent to bring in, persons of color to be disposed of as slaves, in violation of law ; and although it forfeits the vessel and any goods or effects found on board, it is silent as to disposing of the colored persons found on board, any farther than to impose , a duty upon officers of armed vessels, who may capture them, ' to keep them safely, to be delivered ' to the overseers of the poor, or die governor of the State, or persons appointed by the respective States to receive the same. , V - " The 'State of Louisiana passed an act on the 13th of March, 1818, which recites the provisions of the 4tii and 7th sections of the acts of Congress, and authorizes and requires the sheriff of New Orleans to receive any colored persons designated under either of those sections, and the same to keep, until the district or circuit court of the United States shall pro-nounce a decree upon the charge of illegal importation. - " The second section makes provision for selling them, upon receiving a certificate of such decision, and enjoins a distribu-tion of the proceeds ; one half to the commanding officer of the capturing vessel, the other to the treasurer of the charity hospital of New Orleans. . '.;-', " In pursuance of the law of the state, it appears, that - after' the decree of condemnation below, but pending the appeal in ... this court, the sheriff went on to sell, with the consent, it is said, of all parties ; and $65,000, the sum now in controversy, was deposited in the registry of the court below, to await the final . ' disposal ot the law. .. : , ;. " The 20th of April 1818. congress passed another net on this subject by the tenth section of which, the six first sections of the act of 1807 are repealed ; but their provisions arc re- -enacted with a little more amplitude'; and the 5th section of this act which professes to reserve to the states the powers given in the former act as well as the language of the repealing clause, in the saving which it contains as to offences ; still confines all their provisions to the case of illegal importation ; thus leaving the 7th section in force, but without sny express power to dispose of the colored persons, otherwise than to ap-point some one to receive them. " The final condemnation in this court took place March 13th 1820; but previous to that time was passed the act of March 3d, 1819, entitled an act in addition to an act prohibiting the slave trade ; by which a new arrangement is made as to the disposal of persons of colorseized and brought in underany acts prohibiting the traffic in slaves. ' By the latter act they are deliverable to the orders of the president ; not of die states. And the repealing clause repeals all acts and parts which may be repugnant to this act So that if in the disposal of persons of color brought into the United States, the provisions of this act embrace the case of such persons when brought in under the 7th section of the act of 1807, the power to deliver them to the order of die states was taken away before the final decree of this court" " Such, in the opinion of the court, is the effect of die act of 1819. And then the question is, how does it affect the present controversy. " . " Ever since the case of Yeaton e. The United States, 5 Cranch, 86 the court has unifonily acted under the rule established iu that case ; to wit that in admiralty causes a decree was not final while it was depending here. And any statute which governs the case, must be an existing, valid statute, at the time of affirming the decree below.' whatever was the extent of the legal power of the state over the Africans, it is clear that such power could not be exercised finally over them at any time previous to the final decree of this court : we must therefore consider, whether, if they had been specifically before the court at the date of that decree, they must have bVen delivered up to the state, or the United States; clearly to the United States." One of the questions discussed in the Antelope, in the 10th of Wheaton, was, as to the title of the claimants, and who should produce the pre of of tide. The decision of that case

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