The Supreme Court under Chief Justice Roger B. Taney of Maryland had gained a reputation for protecting national supremacy while also safeguarding the rights of states, individuals, and property.1 These stances were not always compatible and necessitated compromise decisions. But a compromise in the Amistad case could only leave the captives as casualties and the abolitionists’ objectives unfulfilled. The abolitionists feared that the justices would opt to protect national supremacy and decide against the blacks. The easiest way out of the morass, a way that would affirm the administration’s position without challenging the states’ rights position, would be to award the blacks to the Spanish minister. If unity depended upon keeping arguments over slavery to a minimum, the Court would surely prefer that course.2
The makeup of the Court added substance to the rumors that the captives would soon be en route to Cuba. A congressional act of March 1837 had increased the number of associate justices from six to eight, and to one of the new positions Jackson had appointed John Catron of Tennessee; soon afterward Van Buren had filled the other with John McKinley of Alabama. Catron had been chief justice of his state’s supreme court, a strong Union supporter during the nullification crisis, and a staunch advocate of federal supremacy. McKinley was a Southern Democrat and former United States senator.3 The two newcomers joined Taney, Joseph Story of Massachusetts, Smith Thompson of New York (who had already been involved in the Amistad case on the circuit level), John McLean of Ohio, Henry Baldwin of Pennsylvania, James M. Wayne of Georgia, and Philip P. Barbour of Virginia. Thus five of the nine Court members were Southern, including the chief justice.
There would be countervailing factors. Two of the Southerners would be absent when the verdict was rendered—McKinley was in poor health and was unable to attend any of the proceedings, and Barbour died in his sleep from a heart attack midway through the hearings. Furthermore, two other justices, Thompson and Story, had made plain their feelings against slavery. During the early stages of the Amistad case, Thompson had expressed his repugnance for slavery while conceding that American law upheld its existence; Story had voiced the same sentiments in the Eugenie circuit court case. In developing the importance of comity among nations, which was part of Story’s conflict-of-laws theory, he drew heavily from the English Somerset decision of 1772, which had decreed that the law of slavery in one country had no binding effect on another country. By that doctrine of comity a nation condoning slavery possessed the right to ask for the return of fugitive slaves; but by that same doctrine the nation holding the alleged fugitives was not required to surrender them, unless by specific treaty obligations. Thus both slavery and freedom existed only by positive law. Story, it soon became clear, would receive the responsibility of writing the Court’s opinion in the Amistad case.4
Before the small but packed courtroom, Attorney General Henry D. Gilpin opened the trial on February 22 with a two-hour presentation. He stood before the Supreme Court justices in a room shaped like a half circle and comparable to a cellar, for it lay beneath the Senate chamber and was often insufferably hot and damp. The room’s only windows, three of them, were behind the raised bench, which meant that the attorneys and spectators had to strain to see the justices’ faces because of the light beaming in behind them. Thus, in a room taking on the atmosphere of a catacomb, Gilpin began his case, walking back and forth, passing in and out of sight because of the huge pillars that held up the ceiling.5
Gilpin’s introductory remarks repeated the arguments given in Hartford and New Haven, the stance outlined to Van Buren in autumn 1839 by the former attorney general Felix Grundy. On appeal from the circuit court, Gilpin declared, two points were under consideration: whether there was, according to the treaty of 1795, “due and sufficient proof concerning the property thereof”; and, if so, whether the United States had the right to intervene in securing the property of the Spanish claimants. Comity among nations demanded that the United States accept a ship’s papers as prima facie evidence. The issue in the Amistad case was not “right” or “wrong” but whether the granting of the papers fell within the official's authority. The blacks’ attorneys had failed to prove fraud concerning the captain general’s certificate. Madden’s deposition was “chiefly hearsay” and was contradicted by other witnesses. The treaties of 1817 and 1835 related only to the slave trade; they had no bearing on whether the blacks were slaves. The captives were therefore returnable to Spain as property.6
Gilpin insisted that the executive had acted legally in attempting to secure a court decree to return the property. According to precedents, the delivery of foreign property went through public officials of those foreigners’ government. In the Eugénie case the French consul and owners had proved their legal claim to the vessel, and Justice Story ordered its surrender to the public official. In the Antelope case of 1825, there was more than one claim: by the captain as captor; by the Spanish and Portuguese vice-consuls for their citizens; by the United States. Again, Gilpin noted, the court accepted the claims as documented and directed delivery partly to the Spanish consul and partly to the United States. In the case of the Amistad, Gilpin declared, the Spanish minister requested a return of property in accord with the treaty of 1795. The documentation of ownership was in order, and the lower courts should have directed the return of the vessel, the blacks, and every item aboard.7
Baldwin consumed the remainder of the first day and all of the next in delivering what Adams termed a “sound and eloquent but exceedingly mild and moderate argument.” Baldwin proclaimed that the case affected not only the Africans but also America’s “national character in the eyes of the whole civilized world.” It presents, he said, “for the first time, the question whether that government, which was established for the promotion of JUSTICE, which was founded on the great principles of the Revolution, as proclaimed in the Declaration of Independence, can, consistently with the genius of our institutions, become a party to proceedings for the enslavement of human beings cast upon our shores, and found in the condition of free men within the territorial limits of a FREE AND SOVEREIGN STATE.” Baldwin insisted that the law of nations guaranteed justice to the African as well as to the Spaniard. In a foreign court all parties bringing suit on questions of freedom or slavery were on equal ground. The Africans were never domiciled in Cuba and therefore owed no allegiance to its laws. The only law applying to the Africans was “universal obligation”—that of nature.8
Baldwin proceeded to his major purpose: to seek dismissal of the case. He argued that the federal government had no right to participate in an admiralty court in behalf of foreigners claiming property and that it therefore had no power to help foreigners recover fugitive slaves. Furthermore, the United States could not appear in a case involving victims of the African slave trade who had found asylum in a free state. The Africans of the Amistad were never slaves; they were certainly free upon entering New York. The captives fell under the protection of the state, which, as the Supreme Court had in 1837 said in New York v. Miln, “has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits, as any foreign nation, when that jurisdiction is not surrendered or restrained by the Constitution of the United States.”9
The United States government had no power to establish slavery, Baldwin argued, and no right to restore the blacks to claimants. The Constitution did not authorize the government to “establish or legalize” slavery; its existence depended on the laws of states. In a statement doubtless reflecting his reading of James Madison’s recently published notes on the Constitutional Convention, Baldwin pointed out that the Founding Fathers had made no references to “property in men,” although they recognized slavery within states that allowed it. Madison had declared at the convention that it was “wrong to admit in the Constitution” that “there could be property in men.” The Constitution, Baldwin emphasized, did not refer to human beings as “merchandise or legitimate subjects of commerce.” Similarly in the Miln case, Justice Barbour had declared that persons were not “the subjects of commerce.” If Congress had the power to authorize the importation of slaves as commerce, Baldwin insisted, it could force slavery into every state, regardless of state laws. The Constitution was a compact among the states requiring them to respect the laws of others; the federal government had no duty or power to act on this matter. The Amistad blacks were free men, and once the courts had declared them free, the president could not intervene. America’s courts must not become “actors in reducing them to slavery.”10
The American people, Baldwin asserted, had never considered it the duty of their government to force free people into bondage by giving “extra-territorial force to a foreign slave law.” The president of the United States had no business seeking recovery of slaves for their owners, whether the slaves were foreign or domestic. Ruiz and Montes, as Spanish subjects, had no right to call on the government in Washington to use the legal process for reenslavement. “Did the people of the United States,” he asked, “whose government is based on the great principles of the Revolution, proclaimed in the Declaration of Independence, confer upon the federal, executive, or judicial tribunals, the power of making our nation accessories to such atrocious violations of human right?” If the United States upheld a foreign nation’s slave laws inside this country, Baldwin declared, it would be violating man’s natural rights. Another country’s laws could not apply in the United States where it violated America’s own laws, the law of nature, or the “law of God.”11
Baldwin argued that the Amistaďs blacks were not pirates or robbers subject to seizure and punishment. Cinqué sought only to free himself and his companions from unlawful bondage. They owed no allegiance to Spain and were on the schooner only by “constraint.” Impressed American seamen, Baldwin pointed out, had the right to use any means in winning their freedom. In a similar fashion, the actions taken by the Amistaďs blacks constituted no crime.12
Baldwin insisted that, according to comity, the United States government could not interfere with either a state’s right to recover fugitive slaves or its duty to return them, whether foreign or domestic. To support this stand, he referred to the experience of John Quincy Adams, who as secretary of state had in 1818 dealt with a proposal to cooperate with England in suppressing the African slave trade. Adams declared that the United States government could have nothing to do with the idea, because blacks in America fell under state laws. The federal government, Baldwin declared, had to respect the laws of a state when they did not conflict with the supreme law. American courts had to do the same in matters affecting the “personal rights of men found within the jurisdiction of a free state.” There could be no return of fugitive slaves without a treaty provision.13
In his concluding statements, Baldwin pressed the argument that Ruiz and Montes were guilty of fraud. His clients had not filed charges against the Cuban captain general, because he had never tried to assume jurisdiction over the blacks as slaves or to settle any question concerning their status. The captain general simply took the applications of Ruiz and Montes and issued passports for ladino slaves. Under those papers, Ruiz and Montes fraudulently put bozales on the Amistad. Reshipment under passports erroneously calling them ladinos and “passengers for the government” was an “artifice” used for the “double purpose” of evading British cruisers and legalizing the shipment of captives. Baldwin noted that it was remarkable that over a year had passed since the district court decision declaring the blacks free, and the Spaniards had still not produced evidence for their claims. “And yet,” Baldwin said, “strange as it may seem, during all this time, not only the sympathies of the Spanish minister, but the powerful aid of our own government have been enlisted in their behalf!”14
Baldwin’s performance drew favorable reaction. According to the New York American, it carried “research and force.” He had talked for four hours in an effort to persuade the Court to dismiss the right of the United States to appear as a party in the case. It was not a national matter, he insisted; it belonged to the states. Furthermore, the blacks had a right of self-emancipation on the basis of the law of nature. Yet, when making the latter claim, Adams observed, Baldwin did so in “cautious terms, to avoid exciting Southern passions and prejudices, which it [was] our policy as much as possible to assuage and pacify.” Adams considered it a “powerful and perhaps conclusive” speech, but he worried that “executive influence” would affect the Supreme Court’s decision.15
Baldwin had raised the inflammatory issue of whether the states rather than the federal government through Congress should determine the status of blacks in America. This question had profound implications for later controversies over fugitive slaves. The irony was that here the abolitionists were seeking to protect blacks from the federal government by appealing to states’ rights. By the 1850s Southerners had adopted the same argument turned inside out, appealing to states’ rights to protect slavery (though not in the case of fugitive-slave-law enforcement) from the federal government.
At long last, after an absence from the courtroom of over three decades, John Quincy Adams prepared to stand before the Supreme Court to do what he never would have believed conceivable: to defend helpless blacks from what he considered to be the machinations of the White House in veritable collusion with a foreign government. Adams was a troubled man, and not only because of the coming trial. On February 19, the day proceedings were originally scheduled to have begun, a close friend of Adams’s had died; Taney had agreed to postpone the argument until Monday, the twenty-fourth. As Adams rose to present his case, he felt “deeply distressed and agitated,” but once under way his “spirit did not sink.” In his diary he wrote that he had a “grateful heart for aid from above” and felt “humiliation for the weakness incident to the limits of my powers.” But he had risen to the occasion because the case depended on the “steady and undeviating pursuit of one fundamental principle”—the “ministration of justice.” The Court had to protect the blacks against the “immense array of power” exerted by the executive and the Spanish minister “on the side of injustice.”16
Adams repeated many of the arguments presented by Baldwin, but his central thrust was the charge of executive interference. The guiding principle in the case, he insisted, had to be the Declaration of Independence. Pointing to a copy of the document mounted on a courtroom pillar, he declared, “I know of no other law that reaches the case of my clients, but the law of Nature and of Nature’s God on which our fathers placed our national existence.” The court was a protector of “JUSTICE,” which meant the “constant and perpetual will to secure to every one his own right.” And yet the executive had combined with the government of Spain to deny human rights to the blacks of the Amistad. From the beginning of the case, Adams argued, the White House had shown sympathy for the whites and antipathy toward the blacks. To Argaiz on December 13, 1839, Forsyth had written that “all proceedings in the matter, on the part of both the executive and judicial branches of the government have had their foundation in the assumption that those persons alone were the parties aggrieved; and that their claim to the surrender of the property was founded in fact and in justice.” By what right, Adams indignantly asked, had the administration extended sympathy to the two Spanish perpetrators of the violence and not to their victims?17
Adams repeated his earlier charge that there was a pattern of executive behavior opposed to the blacks. On September 5, 1839, District Attorney Holabird of Connecticut had written to Forsyth that the blacks were under indictment for murder and that the next term of the circuit court would begin on September 17—at which time, Holabird wrote, “I suppose it will be my duty to bring them to trial, unless they are in some other way disposed of.” Adams remarked that it was “easy to understand in what ‘other way’ he wished them disposed of.” Holabird had closed the note by declaring, “Should you have any instructions to give on the subject, I should like to receive them as soon as may be.” Four days later, on September 9, the district attorney wrote that, after examining the law, he had found no basis for American court jurisdiction over the case, because the alleged offenses had occurred on a ship belonging to a foreign nation. Thus, according to Adams, the district attorney had recommended that the United States search for treaty provisions that would allow it to surrender the vessel and blacks to Spain—and preferably “before our court sits.” These events, Adams argued, demonstrated the administration’s sympathy with the whites—a feeling that Forsyth had wrongfully insisted was national.18
The actions of the secretary of state, Adams believed, left the impression of unwarranted executive interference. At one point Forsyth had told Argaiz that the delay in resolving the case arose from reasons which “it would serve no useful purpose to discuss at this time [emphasis added], 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.” Thus, Adams insisted, Forsyth had led Argaiz to believe 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 meaning could there be? Adams asked.19
According to a British abolitionist and observer at court, Joseph Sturge, Adams accused Forsyth and the Spanish ministers of "conspiracies" against the blacks that were characterized by incredible ineptitude by the administration in Washington. Despite the certainty of death upon the captives’ return to Cuba, the “American Government deliberately adopted the design of delivering them up, either as property or as assassins.” The White House found “willing agents” in Holabird and the United States marshal. Adams’s major evidence was twofold: Forsyth’s note of January 7, 1840, to the secretary of the navy, acknowledging that the USS Grampus was under orders to take the blacks to Cuba as soon as the court rendered the expected decision; and Forsyth’s note of January 12, 1840, instructing the district attorney to have the blacks put onto the ship without waiting for a defense appeal—“You are not to take it for granted that it will be interposed.” Adams demanded, “Was this JUSTICE?”20
The Grampus affair, Adams declared, was evidence. At the suggestion of the State Department and at the request of the Spanish minister, the ship “in the dead of winter” moved into New Haven carrying secret orders from President Van Buren that instructed the marshal to deliver to Lieutenant John S. Paine all of the blacks “under process” before the court. This “memorable order,” Adams asserted, was in conformity with the written opinion given earlier by Attorney General Grundy. It was not “conditional to be executed only in the event of a decision by the Court against the Africans, but positive and unqualified to deliver up all the Africans in his custody under process now pending.” Nothing in the order, Adams pointed out, prevented Paine from fulfilling his mission while the trial was pending. More important, the order was “sufficient to supersede the whole protective authority of the judiciary.” Thus, the executive expected the marshal to obey the president rather than the judge. Did not the president recognize that “the right of personal liberty is individual?” No order could speak in general terms; as the Antelope case showed, an order must state a specific number and designate the individuals involved. The presence of the Grampus, Adams stated, demonstrated the president’s intentions to comply with the Spanish minister’s demand. It was also a “signal equally intelligible to the political sympathies of a judge, presumed to be congenial to those of a Northern President with Southern principles.”21
The White House committed a “singular blunder,” Adams declared, for the president’s directive to the marshal contained three major flaws: Van Buren had not signed it; it was not a warrant but “a mere order” enclosed in a letter to the marshal; and it made the same mistake as Forsyth’s January 7 letter in that it contained a reference to the circuit court rather than to the district court. The district attorney had immediately tried to rectify the situation by sending Lieutenant Meade to Washington for corrections. Holabird feared that these mistakes would furnish legal grounds for dismissing the blacks on a writ of habeas corpus. On January 12, Adams explained, Forsyth wrote Holabird that the order had been corrected—although he did not say by whom. The files did not contain the final warrant, Adams asserted, and when the House later called for documents on the case, the original order of January 7 was in the package sent by the president, but not the corrected one. Adams lamented the State Department’s carelessness in a case involving lives.22
Adams also denounced the president’s supposed effort at fairness in agreeing to send Gedney and Meade to Cuba to testify in a trial affecting the blacks’ lives. This was not sympathy, he declared. This was not “the abundance of his kindness.” What could Gedney and Meade know of the captives’ status? “They could testify to nothing but the circumstances of the capture.” How could the blacks prove their freedom in Cuba, if in the “capacity of slaves” they could not present evidence? The president’s offer was a “mere pretense, to blind the public mind with the idea that the Africans were merely sent to Cuba to prove they were not slaves.”23
If the president complied with the Spanish demand, Adams declared, he would desecrate the American judicial system. The demand violated the Constitution by calling for interference with the court’s jurisdiction. It also infringed upon “the rights of the negroes, of the citizens, and of the States.” Adams asserted that Forsyth should have immediately refused Spain’s demands as “most extraordinary, inadmissible, and insolent.” By not doing so, he led observers to believe that the president was “earnestly desirous” to comply. This in turn encouraged the Spanish minister to repeat his demands. Adams asserted that the president had no power to halt judicial proceedings in Connecticut and to restore the blacks to the government in Madrid.24
Spanish demands, Adams explained, were also inconsistent and confusing. On the one hand, they denied American court jurisdiction over the case and sought the return of persons to stand trial for a crime as subjects of Spain; on the other, they wanted the blacks as property, with indemnity to the owners for any injuries. Article 9 of the treaty of 1795 relating to ships and merchandise did not apply to human beings. Even the Spanish recognized a difference between “merchandise” and “persons.” In a dispatch of September 6, 1839, Minister Calderón wrote Forsyth that the Amistad had left Havana “laden with sundry merchandise, and with fifty-three negro slaves on board.” Calderón had distinguished between “merchandise and negroes,” Adams insisted. The wording in the treaty article made it absurd to argue that merchandise included persons. It required the return of merchandise to port officials, “in order to be taken care of and restored entire to the true proprietor.” Did “entire” apply to human beings? “A stipulation to restore human beings entire might suit two nations of cannibals,” he sarcastically remarked, “but would be absurd, and worse than absurd, between civilized and Christian nations.” Asserting that he spoke from personal experience, he noted that when the nations renewed the treaty in 1819, he as secretary of state had conducted the American side of the negotiations and that no one had considered merchandise to include human beings.25
Furthermore, Adams asked, if the court had no right to institute proceedings, how could it determine the merchandise? How could it decide whether the blacks were Spanish subjects? Or pirates and robbers? The Spanish had based their first claim on the treaty of 1795 in declaring that the blacks were “merchandise, rescued from pirates and robbers.” Yet, as Adams discerned, the Spanish minister had combined “merchandise” and “robbers” into one and the same. The situation had become ridiculous. “The merchandise was rescued out of its own hands, and the robbers were rescued out of the hands of the robbers.” Surely this was not the treaty’s meaning. Vattel had said that “no construction shall be allowed to a treaty which makes it absurd.” Adams asked, 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?”26
Spanish demands, Adams declared, also violated decency. The ministers had not asked the president for the blacks as property, nor had they sought delivery under Spanish law. Instead, they expected the president to “turn himself into a jailer, to keep these people safely, and then into a tipstaff to take them away for trial among the slave-traders of the barracoons.” These demands would negate the writ of habeas corpus, Adams insisted. “Has the 4th of July,’76,” he wondered, “become a day of ignominy and reproach?” In answer to Argaiz’s claim that the “public vengeance has not been satisfied,” Adams exclaimed, “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!” The Spanish wanted the president to act as “man-robber” and “rescue" the blacks from the court so as to deliver them to satisfy the public vengeance of African slave traders. “Where in the law of nations is there a warrant for such a demand?” Adams asked. Despite the attorney general’s claim that a ship’s papers were not subject to scrutiny, Adams believed that such documents were open to examination when their outcome could mean that the president might send the blacks to Cuba, “to be sold as slaves, to be put to death, to be burnt at the stake.”27
Adams also complained that Forsyth had rebuffed British efforts to intervene. When Fox had expressed the hope that the president would act in behalf of the blacks, Forsyth accepted the note only as “evidence of the benevolence of Her Majesty’s Government, under which aspect alone it could be entertained by the Government of the United States.” Yet Fox’s letter had a tone different from that of the Spanish note. His was “courteously worded,” casting “no imputations” upon the United States and seeking “no unconstitutional and despotic interference” of the executive with the judiciary. Fox had only expressed his government’s "anxious hope” that the president would secure the liberty to which the blacks were entitled by law. But when Fox called for presidential action, Forsyth made his government’s opposition clear: “You must be aware, sir, that the Executive has neither the power nor the disposition to control the proceedings of the legal tribunals when acting within their own appropriate jurisdiction.” Adams derisively exclaimed, “How sensitive the Secretary is now! . . . How alive to the honor of the country.” Yet when the Spanish minister demanded the “most inadmissible, the most unexampled, the most offensive,” Forsyth made no effort to vindicate his nation’s honor in the face of humiliating demands that reeked of vengeance.28
At 3:30 P.M. the Court adjourned and Adams closed the first four and a half hours of his defense. He was not satisfied. He had reviewed the correspondence between Forsyth and the Spanish ministers, but, as he lamented in his memoirs that evening, his lack of access to the communications had not allowed him “half the acuteness” and a “tenth part of the vigor” he wanted. In addition, he had ended his presentation “somewhat abruptly,” unable to give a detailed review of the Antelope decision. Indeed, he had left it “almost entirely untouched.” Francis Scott Key, who had argued and lost the Antelope case, had recently warned him of its potential impact on the Amistad blacks. Somehow, Adams had to counter its influence by emphasizing the importance of natural law and simple morality. He did not despair. “I did not,” he wrote, “I could not, answer public expectation; but I have not yet utterly failed. God speed me to the end!”29
Assessments of Adams’s first day in court varied. Romantics discerned the symbolism of a descendant of the Revolutionary generation recalling the principles of the Declaration of Independence; others noted that he had rambled. One observer praised Adams’s “masterly vindication” of “those great & eternal principles of right, of liberty, Sc of law that lie at the foundation of all genuine democratic and righteous government.” The New York Commercial Advertiser remarked that his performance was “eloquent and affecting,” but the New York American asserted that his argument related more to the politics of the case than to its merits and was “certainly not so much to the point as could have been desired.” The New York Evening Post called his defense a “harangue” and a “violent political declamation,” and it urged abolitionists to keep the justice of their claim to freedom separate from extraneous matters. Though William Lloyd Garrison praised Adams for his powerful defense, another abolitionist, John F. Norton, told Tappan that they would further the cause more through legal means than by emotional appeals and invectives. Norton was probably correct. Justice Barbour remarked to Story that evening as they were returning to the boardinghouse that he was “somewhat surprised” at the line of Adams’s argument. But perhaps the most telling comment came from Story himself. In a letter to his wife, he called Adams’s defense an “extraordinary argument . . . extraordinary . . . for its power, for its bitter sarcasm, and its dealing with topics far beyond the record and points of discussion.”30
Adams, however, was optimistic about his second day. He awakened with “much encouraged and cheerful feelings” after an “uneasy restless night,” ready to continue his defense. But at 11:00 a.m., the justices entered the courtroom to announce that Barbour had died and that proceedings would not resume until the following Monday, March 1. By that time Washington was rippling with excitement over several events. Americans had flocked into the city for William Henry Harrison’s inauguration as president, and the House of Representatives reverberated with speeches by congressmen before their newly arrived constituents. Great feeling had also arisen over the ongoing Alexander McLeod controversy with England, which had resulted from the sinking of the Caroline and the longstanding border tensions with Canada. But, according to the New York American, the major attraction was the Supreme Court, which was filled early that day, mainly by ladies who had gathered to hear the remainder of Adams’s remarks. After appropriate respects to Justice Barbour, Adams spoke for nearly three hours, repeating his condemnation of the Van Buren administration and calling again for justice.31
After Baldwin and Adams completed their case for the defense, Gilpin returned to the floor on March 2 to conclude his argument for the United States. In a three-hour presentation, he reviewed Baldwin’s argument with, according to Adams, “great moderation of manner” while “very slightly noticing mine.” Gilpin emphasized two points: that satisfactory evidence of property required the return of the Amistad, its cargo, and the blacks to Spanish subjects on the basis of the treaty of 1795; and that the United States had the right to intervene in securing the return of property demanded by the Spanish minister. On the first point, Gilpin at last took notice of the Spanish government’s demand for criminals when he argued that the call for extradition of the blacks as fugitives did not interfere with a demand for them as property. On the second, he maintained that even though private parties were seeking the return of private property, the United States government still had an obligation to act when the Spanish minister asked for assistance in representing the parties. Private claims, Gilpin declared, had merged with those of the United States.32
Adams’s charges against the Van Buren administration had had an effect, for Gilpin now vehemently denied executive interference in the case. At the Spanish minister’s urging, Gilpin declared, the president fulfilled treaty obligations by filing the case before the judiciary, which had the property within its custody. His “suggestion” on file stated the Spanish minister’s argument that the blacks were property, to be restored under treaty terms, and sought the court’s inquiry into how America could meet its obligations. Yet the defense inexplicably called this “executive interference” and “executive dictation.” Since a treaty was the supreme law of the land, the executive’s duty was to enforce its provisions, and the White House had taken “proper steps” toward this end. It was a “daily occurrence” for the executive to implement judicial decrees; no special laws were necessary.33
Gilpin was correct in asserting that the executive had the power to intervene as the first step toward bringing in the courts. The execution of a treaty was the responsibility of the executive. If the judiciary believed the case satisfactory, the executive’s interposition constituted what Gilpin called a proper part of judicial proceedings. But the problem was that Gilpin had described an action that was legal and had then attempted to square that action with the president’s behavior. The two actions were not synonymous. As the abolitionists suspected but were unable to prove without documentation from State Department files, the executive had intervened not in order to bring in the courts but to avert their involvement. The executive acted before and without the judiciary. Only when the White House failed to circumvent the judicial process did it retreat into the position that it had taken proper action toward the courts’ participation. Perhaps Gilpin, who was not in office at the time the case originated, did not realize this; but an examination of pertinent documents would have established this chronology.
Gilpin now also allowed that the Spanish had made a “double demand” for the return of the blacks as both property and criminals. From the first, however, the Spanish ministers had consistently appealed to the treaty of 1795. Calderón’s letter of September 6, 1839, called for a recognition of the law of nations and of treaties between the United States and Spain. Both Calderón and Argaiz, Gilpin insisted, repeatedly referred to the “double character” of the demand for the slaves. Argaiz on November 25, 1839, sought the “same double demand”—that the United States should surrender the blacks as property and as criminals. He based his demand for property on John C. Calhoun’s Senate resolutions of April 15, 1840: that a ship on the high seas in peacetime and on a legal voyage was, by international law, under sole jurisdiction of the country signified by the flag overhead; that if such a ship was forced into the port of a friendly power, its cargo, all persons on board, their property and their rights, fell under the protection of international law. These resolutions, Gilpin argued, referred to slaves as property and were passed in relation to slaves recently taken into Bermuda and freed. On the basis of these resolutions, as well as the treaty of 1795, Argaiz called for the return of the Amistad blacks as property.34
Gilpin’s reference to Spain’s double demand is perhaps explainable. Adams’s focus on the issue had forced the attorney general to acknowledge the Spanish government’s view of the blacks as both criminals and slaves. But it is noteworthy that Gilpin made no references to potentially inflammatory terms used by Argaiz—“assassins” and satisfying the “public vengeance.” Instead, Gilpin referred to “pirates” and “robbers”—arousing fewer emotions and fitting the wording in the treaty of 1795. He did not admit to either an error or a deception (as Adams charged) in Forsyth’s handling of the case. Gilpin ignored that allegation by focusing on America’s interest in complying with the treaty terms. Whether the Van Buren administration returned the captives as property or as criminals, the move would be above reproach: it would not alter the White House’s insistence that the blacks were legally slaves, and their delivery would be in accord with treaty obligations with Spain.
Executive intervention in the case was proper, Gilpin asserted; the appellees had no justification for attempting to censure the president. On several grounds—treaty agreement, constitutional requirements, international relations, legal precedents—the interposition of the executive was attributable to “duty and propriety.” Gilpin argued that no principle was “better settled” in the country’s political affairs than that the judiciary deferred to the executive on diplomatic issues. When America’s executive sought redress for a foreign court’s decision, it dealt with that country’s executive. If Spain disagreed with a court decision, that conflict had no effect on rights under a treaty or procedure by the American executive. In the Amistad case, the president was awaiting the court’s findings, which would provide the “just and only basis of ultimate decision by the executive.”35
Gilpin insisted that the United States had to adhere to a “golden rule” in international relations: “let us do to them as we wish them to do to us.” If the United States was someday in the same situation as the Spanish were, the American minister in Madrid would interpose in behalf of fellow citizens. If that foreign government did not facilitate such interposition, the United States would have grounds for complaint. This was the procedure adopted by the Spanish minister in behalf of Ruiz and Montes. The United States had to allow a procedure that it claimed for itself.36
Gilpin argued that slaves were property within the United States. Citizens owned them as property; they bought and sold them as property; Congress passed legislation on them as property. States were admitted into the Union with congressional approval only after their constitutions recognized slaves as merchandise capable of being owned, transported, and bought and sold. The Constitution of the United States allowed states to regulate their internal property—and at the time of its formation, slaves were one type of property. The Constitution also protected the rights of states to enlarge upon this property by importing slaves until 1808. If slaves were not property, the United States government had no right to demand indemnity from England for slaves freed in Bermuda. Calhoun’s resolutions of 1840 won the Senate’s unanimous support in declaring that slaves, though freed as persons and so affirmed by a foreign court, were by international law still property, if the institution of slavery was condoned by the country in which the owner resided.37
Despite Gilpin’s earlier reference to Spain’s double demand, he returned to the administration’s original position by concluding that the Amistad blacks were slaves and that slaves as well as other species of property were returnable under the treaty of 1795. The terms of the treaty were so general that neither party could exclude slaves as property without the other’s approval. Article 16 referred to all kinds of merchandise except that of contraband. The Adams- Onís Treaty of 1819, ratified in 1821, renewed this article. Both nations’ executive officials believed that the treaty terms included slaves as property. Regardless of the court’s decision, this was evidence of each party’s intentions, Gilpin argued, and should receive the highest consideration in interpreting the treaty.38
Adams had admonished that when doubt existed over a treaty issue, the safest principle was to choose the interpretation that made greater common sense. But that admonition worked against his case. To reduce confusion, Gilpin had advanced the simplest construction that slaves were property under the terms of the treaty. The overwhelming weight of judicial decisions and legislative enactments leaned toward Gilpin’s argument. To have excluded slaves as property under the treaty of 1795 would have required a special provision. Theodore Sedgwick, one of the blacks’ defense attorneys, had warned Tappan in the initial stages of the battle that the abolitionists could not win the Amistad case if they argued that slaves were not property in the United States. Therefore, common sense dictated that if American diplomats used the term merchandise in treaties, they meant it to include slaves as well as inanimate objects. The only way to defeat the government’s case, as Sedgwick emphasized, was to undermine the Spaniards’ claim to having property rights to the blacks.39
And yet common sense argued against Gilpin’s allegation that the blacks had committed piracy and robbery. He claimed, “If they are property, they are property rescued from pirates, and are to be restored.”40 Gilpin’s argument meant that slaves as persons had acted as pirates in seizing themselves as property, requiring the wresting of themselves as slave property from themselves as slave pirates. This argument approached the absurd, which, according to Adams’s earlier citation of Vattel, could not apply to treaty interpretations.
Gilpin argued that the blacks were prima facie slaves. In line with the 1795 treaty provision calling for due and sufficient proof, he declared that there could be no doubt that the blacks were slaves owned by Spanish subjects. They were blacks in a country allowing slavery, transported from one Spanish port to another in a licensed coasting vessel, and, at the time of its departure from Havana, in the owners’ possession. The “first evidence of property,” Gilpin declared, was “their actual existence in a state of slavery, and in the possession of their alleged owners, in a place where slavery is recognized, and exists by law.” In addition, Ruiz and Montes had documents required by Spanish law to prove ownership. Their certificates carried the signature of the captain general and the countersignature of the port captain, affirming that the blacks belonged to the Spanish citizens holding them. The court of another country had no right to question such prima facie evidence. These rules were vital to international relations. If the United States disregarded the above proofs of property, it would violate its own proofs of property.41
In answer to the claim that the certificate was a “mere passport” and not evidence of property, Gilpin asserted that testimony indicated that it was the “necessary and usual evidence of property.” Though it was Ruiz’s “personal passport,” it was not a “mere personal passport,” because it allowed him to take property with him, and it “ascertained and described that property.” Despite the defense attorneys’ assertion that the blacks were imported into Cuba from Africa after the Anglo-Spanish treaty of 1817, their evidence was not legally sufficient to permit the American court to rule the importation a violation of law. Only a Spanish court could establish violations of Spanish law. Since only municipal law could deal with the question, it would serve no purpose to prove that the importation was illegal. If fraud was clear, Gilpin insisted, the remedy would have to come from Spanish courts, not from the United States. In the Antelope case, Chief Justice John Marshall had declared, “The Courts of no country execute the penal laws of another.” In the Eugênie case, Justice Story relied upon documentation of ownership in directing the return of a French ship operating in violation of French laws against the slave trade. Story explained that this enabled “the foreign sovereign to exercise complete jurisdiction,” and promoted the “great interests of universal justice.” These principles governed relations among nations.42
Gilpin concluded that the blacks’ actions had not put them “in the actual condition of freedom.” If slaves by Spanish law, they remained so on Spanish ships. A similar act of revolution in Cuba Would not have made them legally free: “No nation recognizing slavery, admits the sufficiency of forcible emancipation.” American courts could not rule that such an act constituted a “release from slavery.” Not only would the ruling be applying America’s municipal regulations in Spanish territory, but it would be contrary to America’s own laws. If the blacks were free, it could only be because they were not slaves when they first boarded the Amistad, not because of some subsequent action. Without evidence proving their freedom, the captives were of necessity slaves.43
Gilpin’s closing statements were long and elaborate but, to Adams’s relief, contained no new ideas. Though mentioning Spain’s double demand, the attorney general argued on the principles set out first by his predecessor during the autumn of 1839.
On March 9, after the Court dispensed with a brief order of business, Justice Story prepared to give the decision. A native of Massachusetts, Story was conservative, strongly nationalistic, an eminent scholar and jurist, as sensitive to an individual’s rights as to a strict adherence to the law. He had served on the Supreme Court since 1811, distinguishing himself by legal treatises and learned decisions. Though opposed to slavery, Story had no use for abolitionists, whom he regarded as a threat to ordered society. Story was a staunch supporter of property rights who agreed with a colleague on the bench, Smith Thompson, that as long as American law protected property in slaves, his duty as judge was to uphold the law.44 If politics created strange bedfellows, so did the law. It seemed likely that those members of the Court who detested slavery would ally with the Southern justices to return a verdict favorable to the administration in Washington and that of Spain. The lack of confidence on the part of Adams and the abolitionists seemed justified.45
Story read the decision; only Justice Baldwin dissented, and without submitting a written opinion. Story explained that the justices found an error in the circuit court’s affirmation of the district court decree ordering the blacks’ delivery to the president of the United States for transportation to Africa in accord with the congressional act of March 3, 1819. According to Story, the blacks did not fall under its provisions, for their captors had not taken them from Africa and into the United States in violation of America’s laws prohibiting the slave trade. The captives had not been imported or sold as slaves. In the initial claim by the United States government, Story observed, it had expressed a willingness to accept one of two options: either return the blacks to their Spanish owners as property or, if the Court ruled that they were not slaves, define them as blacks illegally brought into the country, returnable to Africa under the congressional act of 1819. Story assumed that the United States had dropped the second claim, since Gilpin had not mentioned it. Although the district court had decreed the captives’ delivery to the executive for transportation to Africa under the act, the United States was correct in not insisting on this now. That act did not apply to the Amistad. When the schooner entered American waters, the blacks were in possession of themselves and claiming freedom. They had had no intention “to import themselves here as slaves, or for sale as slaves.”46
The main issue in the case, Story declared, was whether the blacks were the property of Ruiz and Montes and returnable under Article 9 of the treaty of 1795, which dealt with ships and merchandise. Story ruled that the prosecution had not proved its claim to property and that the blacks were free. Since they had never been slaves, they could not have been pirates or robbers, and the treaty of 1795 did not authorize their restoration to Spain. Indeed, Story insisted that the treaty was not applicable to the case. Article 6, still in force because of the Adams-Onís Treaty, had no bearing, because it referred to instances in wartime where property of subjects of either signatory nation had by force come under the territorial jurisdiction of the other. Article 8 related to incidents involving some uncontrollable factor—weather, pirates, enemies— forcing the ship of one country to seek refuge in a port of the other. Article 9 stipulated that ships and cargo saved from pirates or robbers at sea and brought into the port of either signatory nation should be taken to port officials and “restored entirely to the proprietary, as soon as due and sufficient proof shall be made concerning the property thereof.” For the Amistad to fit either Article 8 or 9, Story explained, certain conditions had to be plain: that the blacks fit the meaning of merchandise stipulated in the treaty; that American officials rescued them from pirates or robbers on the high seas; that the blacks were pirates or robbers, unlawfully seeking escape from slavery; that Ruiz and Montes could document their claim to ownership. The Amistad, Story declared, did not fit either article, because weather and enemies had not determined the vessel’s landing in American waters and because the blacks were not pirates.47
But the most important point making the treaty inapplicable, Story declared, was that the Amistad blacks were not slaves. If slaves under Spanish law, they would fall into the category of merchandise referred to in the treaty. In wording that followed closely that found in Baldwin’s original arguments in the lower courts, Story ruled that the blacks had never been lawful slaves of Ruiz and Montes. They were “natives of Africa,” “kidnapped” and “unlawfully transported to Cuba, in violation of the laws and treaties of Spain, and of the most solemn edicts and declarations of that government.” Evidence was “cogent and irresistible” that Ruiz and Montes had made a “pretended purchase” with “full knowledge of all the circumstances.” The United States district attorney had admitted in the courts that the blacks were native Africans recently taken into Cuba. Spanish laws, treaties, and decrees had abolished the African slave trade and made participation in it a “heinous crime.” Africans brought into Spanish territories were free. The Amistad captives were free blacks, and the treaty of 1795 did not apply.48
Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in “a gross usurpation.” There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed people be a minority. Story concluded, “If there be any remedy at all . . . it is a remedy never provided for by human institutions.” That was the “ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.” Mutiny was a right of persons illegally enslaved. They might commit “dreadful acts” to win freedom, Story allowed, but they could not “be deemed pirates or robbers in the sense of the law of nations.”49
The real issue in the Amistad case, Story explained, was a conflict of rights between parties. Since neither Spanish law nor treaty was applicable, “conflict of rights between the parties under such circumstances [became] positive and inevitable, and [had to] be decided upon the eternal principles of justice and international law.” If the case centered on the ship’s goods and American citizens claimed a title against Spanish protestations, those Americans could take their claims before an American court, regardless of the treaty with Spain. All the more, Story declared, a conflict of rights had to be the “very essence of the controversy” when “human life and human liberty [were] in issue.” Signatories of the treaty of 1795 never intended to deny equal rights to foreigners who claimed equal justice before American courts. They never sought to deny foreigners the protection afforded them by other treaties or by general laws of nations. The Amistad captives, Story insisted, had equal rights to equal justice before American courts. Without positive law, the “eternal principles of justice” had to prevail.50
Story admitted that government documents accompanying property on board private vessels of foreign nations were prima facie evidence of the disposition of the cargo; but he did not accept the argument that the mere presence of such documents precluded an examination of their legitimacy. The Court was not attempting to “meddle” with the question of “connivance” in the illegal slave trade by Cuban officials. But it recognized that documents were “always open to be impugned for fraud.” Story insisted that nothing was “more clear in the law of nations” than the doctrine that if a vessel’s papers were “shown to be fraudulent,” they were “not to be held proof of any valid title.” A ship’s papers were “to be construed as intended to be applied to bona fide transactions.” And yet they were subject to fraud, whether in the original acquisition or in their later use. In either case, Story asserted, the existence of fraud undermined the “most solemn transactions” and made a title “utterly void.” The treaty of 1795 required the owner to provide “due and sufficient proof” of his property. There could be no proof when there was a “stained tissue of fraud.”51
Finally, Story upheld Gedney’s seizure of the Amistad as a “highly meritorious” and “useful service” to the owners of the ship and the cargo. Maritime law always considered such a service to be a just reason for salvage. The one-third rate seemed “sound discretion” because of the “very peculiar and embarrassing circumstances of the case.”52
The Court’s decision showed remarkable restraint in view of the issues involved in the case. Eighteen months of controversy had come to a quiet and undramatic end in the Washington courtroom as Story read a decision that could not have surprised anyone who had examined the matter on strictly legal grounds. The evidence was conclusive. It is impossible to determine the impact of other considerations: popular opinion favored the blacks; their counsel, especially Baldwin, had prepared the case well; Adams had repeatedly reminded the court of its duty to human rights and to the American Republic. In the decision, however, Story had emphasized the law.
Particularly noteworthy was the Court’s decision not to examine Adams’s charges of executive interference in the case. Story had explained to his wife that Adams had stressed too many extraneous matters in his defense, and to an extent this was true. His long perorations on justice and liberty were somewhat airy. This was unfortunate, for while they satisfied the abolitionists by becoming part of the public record, they tended to shift the focus from Adams’s central argument concerning executive misbehavior. And yet his charges that the president had obstructed the judicial process were serious—so serious that they constituted grounds for a congressional investigation. Story, however, did not deal with the question, and since Adams was slow in delivering the manuscript of his speech to the court reporter, his argument did not appear in the published Reports.53 Contemporaries who wanted to read Adams’s comments either had to piece them together from newspaper accounts or had to await their publication as an abolitionist tract. And those who were not abolitionists were probably never aware of Adams’s accusations. Story kept the focus on legal issues and declared that since the blacks were free, the Court found it unnecessary to render an opinion on whether the United States government had a right to intervene in the case. Inasmuch as by March 1841 Van Buren was no longer president, the Court perhaps saw no sense in fueling allegations raised by the abolitionists. Harrison from the Whig party was now in the White House, and, almost as important to the abolitionists, Daniel Webster had taken Forsyth’s place in the administration. Chances for executive interference had diminished markedly, and though Webster was no abolitionist, he certainly was no Georgia slaveholder.54 Whether or not the Court considered these matters in making its decision, it had fulfilled its constitutional function: to hand down a decision grounded in the law, relatively free of emotion, and seemingly devoid of political considerations.
A major point in the Supreme Court’s decision was that slaves were property. When Story declared that in the absence of positive law the eternal principles of justice had to prevail, he had implicitly legitimized that principle’s corollary—namely, that with the existence of positive law, the same eternal principles became secondary. No matter how immoral the slave trade and slavery itself, international law required that one nation’s decision to legalize either or both deserved recognition by others. Had the Spanish government proved that the Amistad blacks were legally slaves, Story would doubtless have accepted the White House argument and ordered their surrender to Spain. Whether the abolitionists recognized the ramifications of Story’s argument is not clear; if so, they were wise in saying nothing about them.
The decision also sanctioned the right of revolution when captives were illegally enslaved and no positive law applied. The law was the decisive consideration: if the slavery was legal, there could be no right of revolution; if illegal, any means of escape was acceptable. The Amistad decision was a warning to those dealing in the outlawed slave trade that, according to international law, their captives had a right to kill them. It also implied that the law could require society to accept an act contrary to morality and eternal justice. To the disdain of antislavery groups, the decision underlined the supremacy of positive law over natural law and revealed how wide the gap between them had grown. Furthermore, it extended that supremacy into international affairs. Natural law had virtually become residual, although revolution could stem from an appeal to natural law. The abolitionists had not wanted municipal law to apply to territorial waters, and they had achieved only a limited victory despite the Court’s ruling that the Amistad blacks were free.55
The abolitionists failed to take advantage of Story’s decision to ignore differences in color in affirming the blacks’ right to a fair trial in America’s courts. He had ruled that the Africans were free blacks, though of foreign nationality, and had recognized their status as persons having the right to participate in the nation’s legal process. Instead of highlighting the fuzzy impact that the Court decision allegedly had on the antislavery movement, the abolitionists might have been wiser to focus on the Court’s recognition of the individual rights of free blacks. Cinqué and some of the others had personally testified in the lower courts, and their depositions had been accepted as testimony; they had instituted civil suits in the New York courts at a time when their status as either free blacks or slaves was still undefined. Now the highest court in the land ruled that the Amistad captives were free and entitled to legal rights usually granted only to white persons. That part of the decision was clear: black people had made a plea for freedom in the American legal system and had won their case.
In the Amistad case, the Court had decided along purely legal lines. Story had affirmed that slaves were property and that if the Spanish claimants had proved ownership, he would have ordered their return under the treaty; but the only impression the public received—and the one the abolitionists repeatedly exalted—was that the Court had set the blacks unequivocally free. To heighten the impact, the abolitionists had numerous copies of Adams’s defense printed as a propaganda tract advertising that black persons had secured freedom through the American courts. Many subtleties not supportive of the cause disappeared in the excitement over the victory—that Story had reiterated the slaves’ status as property; that slaves had no rights as human beings; that Story had by implication affirmed that slave property taken from one jurisdiction to another was subject to return upon appeal; that President Van Buren, if guilty of either illegalities or improprieties, would go unscathed. At the least, Leavitt bitterly remarked, the president’s executive order attempting to return the blacks to the Spanish government should be “engraved on his tomb, to rot only with his memory.”56 No matter how immoral or unethical the actions of slaveholders and supporters of the White House, the abolitionists had been unable to furnish proof of a broken law; and in that absence of evidence the Court rendered its decision.
Adams expressed it best in letters to Tappan and Baldwin: “The captives are free!” The elderly statesman believed Tappan most responsible for the outcome. “Thanks,” he wrote, “Thanks! in the name of humanity and of Justice, to you”57 Despite the limitations of the abolitionists’ victory, they could proclaim to the American public that the Supreme Court had decreed the freedom of these black people. If Tappan and friends could hang their hopes on nothing else in the Court decision, they could highlight Story’s comments upon the eternal principles of justice.