Had not a presidential election and racial feelings entered the controversy, the Amistad matter might have come to a close during the autumn of 1839. If newspapers were any indication, many Americans seemed to concede the blacks’ right to freedom. But this feeling met rigid opposition from the Van Buren administration in Washington, scattered spokesmen in the American press, especially in the South, and the Spanish government in Madrid. Political and racial considerations soon combined to force a White House policy regarding the Amistad that ignored fundamental liberties and called for an end to the matter by returning the vessel and its cargo to the Spanish government. If the president had doubts about the issue, his Southern constituency probably removed them. The blacks were Spanish subjects, according to the Charleston Mercury. The moment a slave was sold in Cuba, the American government was obligated to recognize him as Spanish property. America’s laws against the slave trade could not apply to Spanish subjects. Otherwise, the United States would have approved the “monstrous English doctrine” that municipal law was part of the law of nations. The Richmond Enquirer declared that the administration’s only duty was to return the blacks to Cuba once the Spanish provided proof of ownership. The United States had no right to inquire into Spanish law.1 The “Southern” argument made sense to the White House: no debates over slavery would develop; the president’s chances for reelection would increase; Southerners would not feel threatened by federal interference; the surrender to Spain would uphold a treaty and maintain good relations. The answer seemed simple to the White House—and it might have been, had not the abolitionists intervened.
At first glance the abolitionists appeared to have a chance for success when some Northern newspapers repeatedly declared that the blacks had been kidnapped in Africa and should go free on the basis of the universal right of self-defense. Had the Amistad fallen in with either a British or a Spanish cruiser, according to the New York American, the blacks would have been “injured freemen,” and the whites who took them would have been hanged as pirates. Had the mutineers on the Amistad been Englishmen and their masters dark-skinned Algerines, “what would have been their reception in a country born of Revolution, and where life, liberty, and the pursuit of happiness, are declared to be the equal and inalienable rights of all men?” The leader of such a revolt would not have been held for piracy and murder but have been received as a hero for choosing freedom over slavery.2
But even amid the widespread clamor for the blacks’ freedom, racial prejudice created a climate in which slurs were cast at them. While admitting that the Amistad captives had a moral and Christian right to freedom and that Cinqué was as much a man as was William Tell, the New York Sunday Morning News declared that blacks in the United States were “happier and better in a state of subjection.” The New York Evening Star remarked that even though the African slave trade was abhorrent, the Africans were receiving more sympathy than white men would have gotten in a similar position. Blacks and whites should have “equal justice.” The New York Daily Express declared that the questions in the case were “purely legal” and should not go before the “excitability of a Jury trial.” Besides, the “property” was poor in quality, for the blacks were “hardly above the apes and monkeys of their own Africa, and the language they jabber [was] incomprehensible here.”3 Indeed, the Evening Star moaned, “certain persons” always defended the blacks, even when they rebelled and killed white men. Blacks seemed to “to be privileged to commit such outrages.”4
Some American commentators sensed a reverse kind of racism fostered by abolitionists that discriminated against whites. The Evening Star declared that the mutiny on the Amistad was a “Godsend to the ultra abolitionists,” for it raised their “failing energies.” Debtors were starving in the “Egyptian Catacombs” (the city’s prison), but they were “white men” and attracted little attention. Lewis Tappan had appealed to Americans to ignore laws and treaties in an effort to “shield the accused because they [were] blacks and [had] been sold to slavery in a foreign land.” His love of notoriety, according to another paper, was “insatiable.” Tappan was a “quack in religion and in every other matter” he touched, a man with a “morbid vanity, at the expense of order and the welfare of society.” Whereas abolitionists would not help “accused white men,” they would do everything for these Africans in the claim that law and justice could not save them. A letter to the editors of the New York Commercial Advertiser expressed resentment for the “officious interference” of “certain prominent abolitionists” who could prejudice the public against the blacks. The true supporters of the blacks, the writer believed, wished that the “self-styled” Amistad Committee would realize that it did not represent the “public liberality.” The abolitionists’ attempt to make “abolition capital” out of the case would “dry up the public bounty” that favored the blacks.5
The abolitionists’ involvement in the case drew out strong racial sentiments. The New York Morning Herald noted that Cinqué was “as miserably ignorant and brutalized a creature as the rest of them.” All of the blacks’ reputed speeches and statements were the “pure invention” of the abolitionists. A correspondent from New Haven wrote to the paper that Tappan lied in asserting that the blacks were intelligent and in remarking that Cinqué had the dignity and grace of Othello: “I never saw a human being who was not an idiot, that approximated to the average of these negroes in point of hopeless stupidity and beastly degradation.” Cinqué was a “blubber-lipped, sullen looking negro, not half as intelligent or striking in appearance as every third black you meet on the docks of New York.” Abolitionists would do anything to promote their “unholy schemes.” The “God of nature” never meant the black race to live with whites “in any other relation than that of master and slave.” Africans knew only how to eat and steal. One of the Amistad blacks was a “pretended cannibal,” but he really was a “helpless imbecile” or “absolute idiot” who, like the rest of them, wore a “baboon-like expression.” Ruiz was correct in claiming that had the captain killed one of those “great cowards” at the outset of the mutiny, they would have returned to the hold without further resistance.6
If justice were to prevail in the Amistad case, it would have a difficult time because, among other reasons, the abolitionists were in the forefront of a struggle that involved both political and racial issues. The Van Buren administration refused to take any stand that might alienate its constituency, and that meant avoiding all matters relating to slavery. Racial attitudes in both the North and the South demonstrated that even those Americans willing to grant freedom to the Amistad blacks did so with great hesitancy. Few spokesmen would do anything to further an abolitionist cause that to them breathed fanaticism and sectional division—not to mention certain defeat at the polls. To the abolitionist, the American Republic of the 1830s appeared to belong to the slaveholders and their sympathizers.
Political and racial matters had magnified the importance of a case that the abolitionists found it convenient to exploit; but then the Amistad mutiny gained an international dimension that further highlighted events in New Haven. On September 6 the Spanish minister in Washington, Angel Calderón de la Barca, presented Secretary of State John Forsyth a series of demands calling for the surrender of the blacks to his government in Madrid. Calderón praised the commander of the USS Washington for saving the Amistad and insisted that the American government should now return the captives to allow them to stand trial in Cuba for mutiny and murder. The failure to punish the “crime in question” would cause more “revolt and evasion” among blacks in Cuba, many of whom worked American property and were often transported from one part of the island to another.7
On the surface, Calderón had a convincing argument—or so it seemed to an administration in Washington that wanted to comply. Under Pinckney’s Treaty of 1795, he demanded immediate delivery of the vessel and its cargo to their owners, with no expenses deducted as salvage. Article 8 of that treaty provided that if one of the signatory nation’s ships entered the other’s port “through stress of weather, pursuit of pirates or enemies, or any other urgent necessity” (emphases here and afterward were added by Calderón), that ship should receive good treatment, help, protection, and provisions “at reasonable rates.” Most important, it “shall no ways be hindered from returning out of the said ports.” Article 9 of the same treaty declared, “All ships and merchandise, . . . which shall be rescued out of the hands of any pirates or robbers on the high seas,” shall be taken to the port’s officials “to be taken care of and restored entire” to owners. And Article 10 stated that any ship “wrecked, foundered, or otherwise damaged” on the coasts or in territorial waters of the other should receive “the same assistance which would be due to the inhabitants of the country where the damage happens, and shall pay the same charges and dues only as the said inhabitants would be subject to pay in a like case.” Furthermore, Calderón insisted, American courts had no jurisdiction over Spanish subjects or over crimes committed on Spanish vessels in Spanish waters. He based his government’s claim on the law of nations, on Pinckney’s Treaty, which was later upheld by the Adams-Onís Treaty of 1819, and on good feelings between the nations.8
A Spanish newspaper in New York, Noticioso de Ambos Mundos, summarized the Madrid government’s position regarding the Amistad. Private feelings about slavery and the slave trade could not interfere with law and justice. All nations had the right to govern themselves when their actions did not violate treaties with other nations. The treaties of 1795 and 1819 contained the governing principles in this case. Ruiz and Montes had brought the schooner into the United States by “stratagem and on purpose” to save their lives and property from mutineers and murderers on the high seas. They sought asylum and protection. The United States welcomed them as a “social duty” among friendly nations that rescued them from “savages.” Pinckney’s Treaty allowed the completion of the Amistaďs voyage without exacting any salvage other than what Americans would normally have received had it been an American vessel. The United States had no right to interfere with Spanish officials enforcing Spanish laws, nor could it question whether the blacks were slaves. The latter point could not come up for discussion except with the general governments, and the administration in Washington could not assume powers inconsistent with treaties or the law of nations. The United States could not legally inquire into the matter of whether the blacks were legally slaves; it had no treaty with Spain for suppressing the slave trade, and the practice was not contrary to the law of nations.9
The Spanish paper appealed to the administration’s tendencies to take the Southern position on matters relating to slavery. Could the United States approve the “principle that robbery and murder are not crimes when committed by slaves for the purpose of regaining their freedom?” The United States condoned slavery in many states and in its capital city; it had recently forbidden abolitionist petitions from appearing in Congress. The Spanish paper supported its position by quoting the famous jurist Chancellor James Kent of New York, who declared, “[E]very State is bound to deny an asylum to criminals, and upon application and due examination of the case to surrender the fugitive to the foreign State where the crime was committed. The guilty party cannot be tried and punished by any other jurisdiction than the one, whose laws have been violated; and therefore the duty of surrendering him applies as well to the case of the State surrendering as to the case of subjects of the State demanding the fugitive.”10
The paper offered assurances to those Americans who feared that returning the captives to Cuba meant automatic execution. If Spanish tribunals on the island determined that the blacks had been illegally imported, they would take these circumstances into consideration in “extenuation of their crime and punishment.” Since the blacks were accused criminals, the paper emphasized, the United States’s sole responsibility was to deliver them to Spanish authorities.11
The Spanish government’s demand for surrender of the Amistad and its cargo was attributable both to national honor and to apprehension that the British would use an alleged violation of the Anglo-Spanish treaties against the slave trade as a pretext for intervening in Cuba. The Spanish knew that no nation could draw respect from others if it could not enforce its own laws. Torn by civil war at home, the government in Madrid could not appear weak in international affairs and encourage more opposition to its authority: It had to take a strong stand, if only to save face.
But Spain could not emerge from this situation unscathed. One can conjecture that if the United States had returned the blacks to Spain, the ensuing trial in Cuba (assuming one had taken place) would have led to a ruling against the blacks. Various interests on the island would have resisted acquittal for fear of setting a precedent for freeing mutinous slaves who had killed their masters. More important, the threat of execution would have provided the British with exactly the pretext for intervention that the Spanish most dreaded. And yet, if the Amistad case had gone to trial in the United States, any outcome would have been conducive to British intervention. If the court had either freed the blacks or returned them to Africa, such a verdict would have rested on the finding that Spain had violated the anti-slave-trade treaties; but had it affirmed Spain’s demands and returned the captives to Cuba, British involvement on the island would have become more likely because the blacks’ lives would have been at stake.
In retrospect, British intervention in Cuba was highly improbable during this period; but neither the Spanish nor the Americans could have been sure. England had problems at home and abroad, including more and more difficulties with the United States over the Canadian boundary and related matters. The American diplomatic position on Cuba and general European meddling in the Western Hemisphere was also clear by the 1820s. Nevertheless, the Van Buren administration was aware of British commercial interests in the Caribbean, and the government in Madrid feared that British abolitionists would stir the island’s blacks into rebellion and force Spain to relinquish all claims to Cuba. Indeed, Spanish leaders believed that the British were intent upon controlling the Caribbean as part of a drive toward world power. Whether the perceptions of the Americans and the Spanish were correct is not crucial; they believed that the British were capable of some form of intervention in Cuba. That belief was a major determinant in each nation’s policy toward the island.12
The reaction of the White House to Spanish demands was what the abolitionists expected; it sought to avoid a confrontation with Spain that could in some way relate to slavery. President Van Buren was a moderate on slavery issues but not on political aims. The greatest challenge facing his administration that autumn was the approaching presidential election of 1840. His Democratic party rested on a coalition of Northerners and Southerners, who would remain in alliance as long as the slavery issue lay dormant. Van Buren’s predecessor, Andrew Jackson, had encountered that danger during the mid-1830s, when his friend Sam Houston sought Texas’s admission to the Union as a state. Forces on both sides of the slavery issue warned of a bitter fight that would undermine the Democratic party. Jackson took the political course of refusing Houston’s request and evading a confrontation over slavery. When the Texas question arose again during Van Buren’s tenure in office, he had followed Jackson’s example and once more averted the issue. Surely the same approach would work with the Amistad.
Some observers drew analogies between the Amistad case and earlier maritime incidents involving American coastal slavers forced into British ports. In 1830 the Comet was carrying slaves from Virginia to Louisiana, when it ran into a storm and had to beach in the Bahamas. Four years later the Encomium left Charleston, only to suffer the same fate. The following year a storm drove the Enterprise into Bermuda. Over American protests, British officials in the islands freed all the slaves. The secretary of state during the controversy over the Comet was Van Buren himself. When the United States sought indemnification in 1836 for all three vessels, Andrew Stevenson, the minister in England and a Virginia slaveholder, encountered great reluctance in London. The British foreign secretary, Lord Palmerston, finally agreed to meet American claims for the Comet and the Encomium, but not for the Enterprise, because it had entered Bermuda after August 1, 1834, the day British emancipation in the West Indies went into effect. Stevenson immediately rejected Palmerston’s reasoning, declaring that American law authorized the coastal slave trade and was backed by international law, which superseded British law in the West Indies. In the Senate later on, John C. Calhoun likewise denounced Palmerston’s distinction, arguing in resolutions on March 4, 1840, that under international law a ship engaged in legal commerce—the interstate slave trade—was under the exclusive jurisdiction of its government, even while on the high seas and even if forced into a foreign port. The British owed an indemnity for the Enterprise, Calhoun insisted. Now, since the Spanish government authorized the coastal slave trade in Cuba, the United States by its own reasoning appeared to have no choice but to comply with Spain’s demands for the Amistad and its cargo.13
But a careful examination of these three cases and that of the Amistad shows that no valid comparison existed: whereas no questions arose about the legitimacy of the American coastal vessels’ business, the voyage of the Amistad caused enough suspicion to justify an inquiry into its papers. Furthermore, in the earlier maritime controversies the major American demand was for indemnity and not for a return of slaves, especially after parliamentary emancipation. Stevenson had presented the argument, which the British rejected, that a ship was an extension of a nation’s territory and thus safe from encroachment because of its flag. He also declared that, on the basis of hospitality, ships of friendly nations forced into foreign ports were to receive help in completing their voyages. But this policy did not apply in instances involving fraud. Whites in control of coastal slavers surely aroused no questions about ownership; but blacks in command of a weather-beaten schooner that carried white prisoners, flew no flag, and was thousands of miles from the Cuban coast certainly raised suspicions. Legal support for an inquiry into the status of the Amistad could have come from the commentaries of Justice Joseph Story of the United States Supreme Court. According to his writings of the early 1830s, public officials could go beyond prima facie evidence when there was reason to suspect that a ship’s papers were fraudulent.14
To the Van Buren administration, however, the central consideration in the Amistad case was not the law but political concerns that prohibited the discussion of issues conducive to sectional division.15 The White House did not find it politically expedient to examine the obvious legal infractions in the Amistad case and make the expected judgment. Even a superficial inquiry by the Van Buren administration would have created a legal case for believing that both the cargo and the voyage were illegal. But the easy solution was to disregard the evidence and make a political decision—which was what the White House intended to do.
It is surprising only at first that the Van Buren administration made no inquiries in Cuba about information relating to the Amistad and to the slave-trade question in general. Was the Amistad a known slaver? Was illicit slave importation a thriving business? Were Spanish officials on the island in collusion with participants in the traffic? What were the reputations of Ruiz and Montes? Were the barracoons primarily outlets for selling recently imported Africans? An examination of dispatches to Washington from the American consul in Havana, Nicholas Trist, shows no effort on anyone’s part to ascertain facts that might have facilitated justice.16
Several factors may explain the administration’s lapse in securing information on the Amistad. Trist was preoccupied with other matters. A still unresolved controversy in America’s diplomatic history concerns the allegations that he accepted money for failing to police the issuance of clearance papers to slave traders in Cuba who sought to use the American flag in guarding against a British search. Trist hotly denied the charges, and the president believed him.17 Conceivably this issue overshadowed all others—including that of the Amistad. The Van Buren administration may also have initially thought the Amistad issue so inconsequential that neither the White House nor Trist sensed the importance of forwarding relevant information to Washington. Another explanation may be the sheer ineptness of the White House. Yet this is unlikely. Forsyth was a responsible federal official. In addition, the White House, having already made a decision, might not have wanted to know any more about the case. Furthermore, it is possible that Van Buren perceived that slavery as an issue could wreck not only the Democratic party but the Union itself, and that he therefore wanted it kept out of politics.
The administration’s lukewarm attitude toward the African- slave-trade question also helps to explain its stance on the Amistad issue. In early 1837, shortly after Van Buren became president, the British invited the United States to join them and the French in a treaty establishing an international force to suppress the traffic along the African coast. Forsyth refused the offer of mutual search for several reasons: the United States feared a loss of maritime rights, preferred to enforce its laws in American waters only, and wanted to act alone in halting its citizens’ participation in the trade. Moreover, the proposed arrangement would harm American commerce. Whereas British and French nationals would have courts close by, Americans would have to return to the United States for trial. Finally, a mutual search treaty carried dangerous implications for American slavery. Later, in October 1839, Henry S. Fox, the British minister in Washington, sent a note to Forsyth complaining of America’s failure to halt the slave trade. The United States, Fox urged, had to permit the right of mutual search in stopping the practice. Forsyth denied that America was responsible for the failure of the anti-slave-trade arrangement, and blamed the signatory nations for their duplicitous practices. Forsyth repeatedly directed Stevenson in London to protest British naval officers’ searching American vessels suspected of engaging in the slave trade. Palmerston provided no satisfaction.18
Forsyth’s proslavery and states’ rights views doubtless affected his stand in the Amistad controversy. A former Georgia congressman and governor, he had been minister to Spain from 1819 to 1823. He owned slaves, but his modest wealth allowed him no more than a few household servants; in 1840 he owned three. As a Southerner, he believed that the federal government should not interfere with slavery, because it was a state matter. During the 1820s he opposed an attempt by a New York congressman to secure a resolution declaring that a free black from New York had a right to live free in any state of the Union. The Southern delegation countered with the resolution, which Forsyth supported, that Southerners had “the right to exclude free People of Color, to eject them, and to limit their privileges,” when Southerners allowed free blacks to reside among them. On the African slave trade, Forsyth in the 1820s denounced the business as piracy, advocating prosecution under the law of nations and urging the United States to act independently in suppressing the practice. Only treaties with foreign nations, he insisted, could lead to the search of American vessels.19
All of the above factors probably influenced the Van Buren administration’s attitude toward the Amistad case; but the overriding consideration appears to have been its desire to dismiss the matter before it could affect the Democrats’ chances for reelection in 1840. Van Buren had no strong feelings about slavery—except that he did not want it to interfere with his remaining in the White House. In a long letter published in the press, the president asserted that the relation of master and slave belonged “exclusively” to each state and that the government in Washington had no right to violate the “Spirit of the compromise which lies at the basis of the Federal compact.” The abolitionists, he declared, sought only “to disturb the amicable relations existing between the Slave holding & non-Slave holding States of this Union.” They had caused “unmixed mischief,” and as a “public man” his duty was “undisguised opposition” to their tactics. The Spanish minister thought that Van Buren’s primary concern was political Calderón believed that in order to bring pressure on the president to free the captives and thus undermine his Southern support, the abolitionists had proclaimed Cinqué and the others “heroes comparable to the Romans.”20
Forsyth took the lead in formulating the administration’s strategy on the Amistad. Time would take care of the matter, he believed. On September 5 the United States district attorney in Connecticut, William S. Holabird, asked Forsyth for instructions in the case but appears to have guessed what they would be. “I suppose,” Holabird wrote, “it will be my duty to bring them to trial, unless they are in some other way disposed of.” Yet less than a week later he explained that after careful examination of the law, he did not believe that American courts had jurisdiction, since the offense had taken place on a vessel “belonging exclusively to citizens of a foreign State, on the high seas, and . . . against subjects of a foreign State.” Sensing legal difficulties, he asked whether the United States was party to any treaties that would allow a surrender of the blacks before the circuit court convened. On September 11 Forsyth directed Holabird to make sure that no judicial proceedings permitted the Amistad, cargo, and “slaves” to go “beyond the control of the Federal Executive.”21
With the president out of Washington for a few days, Forsyth discussed the matter with Attorney General Felix Grundy, Postmaster General Amos Kendall, and Secretary of the Treasury Levi Woodbury, who all agreed that the United States should comply with Spain’s demands on the basis of Pinckney’s Treaty of 1795. Woodbury assured the president by letter that the Amistad case was “undergoing full examination” by them all; in a suggestion not followed by the White House, the secretary of the treasury wrote, “[P]erhaps nothing is lost in point of public feeling by letting the judiciary take all the responsibility in respect to it, which they [sic] may choose to exercise.” After Van Buren returned to the White House, he approved his cabinet members’ recommendation to accept Spain’s position in the controversy, and he instructed Grundy, a Tennessee slaveholder, to write an opinion in its support.22 This business out of the way, the president turned to more important matters—domestic financial difficulties, longstanding Canadian boundary problems with England, and the reelection campaign.
By the middle of October the attorney general had prepared a legal opinion that supported the administration’s stand. Grundy insisted that Pinckney’s Treaty obligated the president to deliver the vessel, cargo, and blacks to persons designated by the Spanish minister in Washington. The United States, he added, had to give “due faith and credit” to official acts of other nations’ “public functionaries.” Property titles held by Ruiz and Montes were conclusive and not subject to question in another country’s judiciary. The Amistad had papers “regularly authenticated” by “proper officers” in Havana. In a statement that contradicted Story, Grundy declared that there was no legal principle justifying American investigation into the validity of those papers. Furthermore, he noted, judicial actions were not the only official acts above scrutiny by another nation. All acts of other nations were binding, whether executive, legislative, judicial, or special. Otherwise, the principle of comity would cease to exist, leaving international law to collapse in disharmony. American intervention in the case would constitute an effort to make decisions on a treaty between England and Spain; only parties to a treaty could judge matters affecting that treaty. Special tribunals existed to deal with violations of treaties.23
The Amistad affair was not a case of piracy, Grundy declared; otherwise, both the law of nations and municipal law would condone American jurisdiction over the matter. According to one American legal scholar, piracy was “the offense of depredating on the seas, without being authorized by any sovereign State, or with commissions from different sovereigns at war with each other.” Pirates were “the common enemies of all mankind” and for that reason were subject to capture and trial by any nation. Chancellor Kent called pirates the “enemies of the human race” and agreed that they deserved “universal hostility.” The federal courts, Grundy pointed out, held in U.S. v. Smith that pirates were “free-booters upon the sea, not under the acknowledged authority, or deriving protection from, the flag or commission of any Government; and, therefore, . . . subject to trial within the United States.” But in the Amistad case, the ship was Spanish, belonged to Spaniards, was protected by Spanish papers and flag, and was moving from one Spanish port to another. In U.S. v. Palmer, Grundy noted, the Supreme Court held that piracy, as defined by the congressional act of 1790, did not include robbery on the high seas and on a vessel belonging to subjects of a foreign country. American courts had no jurisdiction in the Amistad matter because the uprising was not piracy.24
Grundy cited the Supreme Court’s Antelope decision of 1825 in support of his argument. According to Chief Justice John Marshall, the law of nations sanctioned the slave trade. Grundy admitted that many Americans considered the slave trade inhumane, but he pointed out that both international law and “almost all civilized nations” had declared the practice legal. Though an individual country could declare the business illegal, such decrees were operative only within its territories and only against its subjects. American courts could not judge actions by another country’s citizens. The Amistad had not been engaged in the African slave trade at the time of the revolt, and just as Americans had the legal right to participate in the interstate slave trade, the Spanish vessel had been legally transporting slave property from one Spanish port to another.25
Grundy insisted that since the blacks were Spanish property and the United States could not take action against them as criminals, the only remedy was for the White House to follow Pinckney’s Treaty and order the United States marshal in Connecticut to surrender the vessel and the cargo to the Spanish minister. The president had no legal power to return them to Africa, Grundy explained, for congressional acts on the slave trade applied only when violations occurred inside the United States. The Spanish claimants had not entered United States territory with the intention of either selling or enslaving the blacks. It was clear that “no violation” of American laws had been committed and that “no such violation was in contemplation.” Furthermore, Grundy noted, the blacks had denied being slaves, and they would not have a chance to prove their innocence if the president surrendered them to Ruiz and Montes. The only safe course was to deliver the blacks to the Spanish minister, who would see that they stood trial before Spanish tribunals. The president’s responsibility was to execute the treaty by ordering the marshal to deliver property to persons designated by the Spanish minister. Van Buren’s cabinet approved Grundy’s opinion.26
The flaws in Grundy’s analysis were clear to those knowledgeable in international law. Grundy had made an invalid comparison between the Amistaďs voyage and that of American vessels engaged in the interstate slave trade in that there were no suspicions that the blacks on board the American ships had come from the illegal African slave trade. Moreover, America’s demands in these cases had been for indemnification, not for the return of slaves. The attorney general’s effort to show that the Amistad mutiny was not a case of piracy led him into a contradiction when he referred to Article 9 of Pinckney’s Treaty in arguing that the United States had to return to Spain all merchandise rescued from robbers and pirates. Similarly, in refusing to recognize the blacks as pirates and robbers, he again showed inconsistency in argument by inadvertently implying that they were free men, not slaves, and entitled to seek liberty. As pirates and robbers, the captives would have had to be slaves, now legally held for an illegal revolt.27 In addition, Grundy’s attempt to define when the African-slave-trade process actually ended was unconvincing. His argument implied that no prosecution could take place unless authorities caught the perpetrator in the act of violating the law. Portuguese slavers had transported the blacks to Havana, where Spaniards bought them and took them to Puerto Príncipe. In effect, he was arguing that the blacks legally became slaves once they entered a Spanish possession even though their entry was illegal. But at what point did the illegal trade terminate and the legal domestic traffic begin? It is arguable that the African slave trade was still under way during the blacks’ passage to Puerto Príncipe, leaving them every right to strike for freedom.28
The reason for the attorney general’s stance was easy to understand: it was politically inexpedient to allow the Amistad case to go to trial in the United States. Had he admitted that the uprising was piracy, international law would have taken precedent over Pinckney’s Treaty and permitted the American courts to have jurisdiction. Abolitionists would have entered the fray, which would have provoked a heated Southern defense of slavery and split the Democratic party. The alternative course for Grundy would have been to argue that the blacks on the Amistad had sought only freedom, eliminating the possibility of piracy and relieving the American judiciary of jurisdiction. And yet this stand would have placed the White House on the side of the abolitionists and created the political problem of a sectionally divisive public debate.
An article in the Emancipator, signed “Veto” (actually Theodore Sedgwick, one of the blacks’ attorneys), emphasized that the outcome of the Amistad case depended upon implementing the “law of the case with a calm and dispassionate eye.” Ruiz and Montes could not claim the blacks as property, because the law was not on their side. As Chief Justice Marshall pointed out in the Antelope decision, the legality of the seizure of a ship engaged in the slave trade depended upon the law of the country under which that vessel sailed. If the slave trade was legal, compensation was in order; if not, the vessel was subject to settlement by a prize court. Spanish law prohibited the slave trade. The sale of the blacks in Havana did not change their status from “stolen property.” No matter how many times the items changed hands, no divestiture of property could have occurred. On the matter of criminal jurisdiction, Veto declared that if the blacks were not property, they could not be guilty of any crime in seeking freedom. The blacks were “free persons illegally restrained of their liberty,” and it was “not murder for a free man to kill his kidnapper.” The mutiny was neither robbery nor piracy. By the law of nations, Veto claimed, piracy was robbery at sea. But to constitute robbery, there had to be the “animus” or the intention. The blacks of the Amistad had one objective: to win their freedom and return home, not to plunder the ship’s goods.29
A writer to the New York Evening Post who signed himself “A” argued that the Amistad case belonged in the American courts. To bring it before the judiciary, he thought a writ of habeas corpus advisable. Treaties were part of the law of the land, and when their execution involved private rights, one had to look to the judiciary for protection or redress. The Constitution declared that judicial power extended “to all cases, in law and equity, arising under the constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” The executive could not act independently of the judiciary.30
The Emancipator emphasized that the law had to prevail in the Amistad case, although the antislavery paper was pleased that the “old American feeling, in favor of liberty and equal justice to all men, irrespective of clime, caste or color, [was] reviving among us.” The paper’s greatest objective was that justice might go to the Amistad blacks, just as it would go to “any other class of men who forcibly liberate themselves from unlawful captivity,” and that this might in turn help to overthrow the slave trade and bring about the introduction of civilization to Africa. The blacks’ future was in the hands of the American courts, and this meant that law had to prevail over feelings pertaining to slavery.31
Though the abolitionists were convinced that the remedy in the Amistad case was to take it before the courts and the American people, they had not counted on politics’ interfering with justice. Van Buren’s zeal for reelection threatened to override all considerations, including whether it was just to return the blacks to Cuba for what would probably be a mock trial. Forsyth’s directive to Holabird of September 11 had provided the first glimmer of an attitude that seemed prevalent in the White House—that the executive possessed a prerogative that might allow interference in the judicial process.