The first round of the abolitionists’ struggle in the Amistad case took place in the United States Circuit Court meeting in Connecticut. The blacks’ attorneys hoped to convince the presiding judges, Associate Justice Smith Thompson from the United States Supreme Court and Andrew T. Judson from the district court, that the circuit court lacked jurisdiction in a case where natural law was the guiding principle and that there was nothing to warrant a grand-jury indictment for either murder or piracy. They first tried to secure a separate writ of habeas corpus for the three girls; this would force the prosecution to bring formal charges against them, or see the court excuse them from appearing as witnesses in the case. Their release would result in a courtroom confrontation between the black captives, who had attracted considerable public favor, and the two Spaniards, who had not. Furthermore, the writ would serve as a license to bring into debate the entire question of human rights and property rights pertaining to slavery. If the abolitionists could show that there was no legal basis for holding the youths, they would expand the argument to include the other blacks. If they could establish that the captives were human beings and not property, no one could have property or salvage claims on them and the blacks could go free. Most important, the abolitionists could exert pressure on the Van Buren administration to change its stand on the issue.
The abolitionists’ strategy in the Amistad affair was to exhaust every legal remedy for securing the blacks’ liberty, and their first step was to make a highly tenuous appeal for a writ of habeas corpus to show cause for not releasing the blacks. Such a court order would shield them from unlawful imprisonment unless the Spaniards’ counsel filed formal charges. If he did so, the blacks’ attorneys could argue that the blacks had been charged as persons, not as property, and this would win a major principle in Connecticut that might spread nationwide. To do this, they intended to establish that both Lieutenant Gedney and the United States marshal had acted illegally in detaining the blacks. If they could prove that the blacks were not slaves and therefore not property, both American officials would have violated the blacks’ fundamental rights. Dismissal of the case on a writ of habeas corpus would constitute an admission to the abolitionists’ most important objective—that natural rights superseded municipal law and guaranteed blacks the liberty inherent to mankind.1
The appeal for a writ was the beginning step in the judicial strategy designed to publicize the substantive issue of human and property rights in the circuit court. One abolitionist insisted that the central question was “whether an African [Was] a man, and of course entitled to all the rights of humanity.” Even if the blacks’ attorneys failed to win the writ, it was worth the effort, for at the least they could explore the inhumanity of slavery in a judicial and public forum. As Joshua Leavitt later told the General Antislavery Convention in London, the purpose of the writ was “to test their right to personality.”2
The abolitionists were on shaky legal grounds. Federal judges could inquire into the legality of a person’s detention by the executive branch of the American government, but state and local detentions lay outside the jurisdiction of federal courts.3 Since the passage of the Judiciary Act of 1789, the “Great Writ” supposedly protected individuals against unjust imprisonment by the federal government, but few federal offenses actually called for a defense based on a writ of habeas corpus, for there was little federal criminal law. In the states the writ was important, but few poor people could seek remedy against state actions; besides, state judges were hesitant to issue the writ against state, county, or local officials. The result was that, although the Constitution guaranteed habeas corpus, the importance of the writ before the Civil War was clouded or problematic.4
If the court in Hartford issued the writ, the blacks’ attorneys intended to argue that their clients were persons who shared constitutional rights with other Americans. If the abolitionists succeeded, the decision would alienate the South by suggesting that American slaves were also persons who could seek a writ of habeas corpus in claiming freedom. The best chance for undermining the Spaniards’ argument lay with the three girls: they spoke only an African language, they attracted great popular sympathy, and their youth made it clear that they were recent imports from Africa. This proceeding in Hartford would form the basis for all succeeding legal arguments in the case.5
Whether the attraction was mere curiosity, concern over universal principles, or the rumors sweeping the countryside that a mass public hanging was about to take place, the large number of visitors in Hartford converted the usually placid town into a virtual carnival as the time approached for the hearing. Public hotels were filled, the streets jammed, and the courtroom crowded to capacity long before the session was scheduled to convene on the afternoon of September 19. Among the distinguished visitors were the wives of the judges, along with elderly and respected citizens of the community and of towns as far distant as Boston and New York. Ruiz and Montes attracted great interest by arriving in nearby New Haven Bay on a steamboat, accompanied by Lieutenant Richard W. Meade of the USS Washington.6
The number of visitors in the New Haven jail had increased dramatically over the last few days, now totaling perhaps four thousand (each paying twelve and one-half cents admission). The long streams of strange white faces had frightened the blacks, who nervously passed their hands over their throats in asking whether they were about to die. When repeatedly told no, they were puzzled: “If they don’t mean to kill us, why are so many people here to see us?” At one point the four children, in another part of the building, began crying loudly with fear. Lewis Tappan, who happened to be present, learned that Ruiz had recently been in the room. When the youths saw the Spaniard, one of them ran to the matron and all burst into tears. Cinqué had dourly responded to Ruiz’s visit by drawing his hand across his throat.7
Abolitionists were pleased with the atmosphere in Hartford. They could hardly have hoped for a stronger indictment of slavery than the spectacle of a United States marshal bringing in the three black girls, weeping with terror and desperately clutching the jailer’s hands as he tried to calm them with pieces of fruit. Nor could they have asked for greater melodrama than to hear the defense plead for a separate writ of habeas corpus for the girls to release them from jail, only to hear the prosecution stand in opposition and call for bail of $ 100 on each of them to assure their appearance as witnesses to the mutiny. A “whole posse” of lawyers, according to the Washington National Intelligencer, was ready to do battle over the most sacred principles of the Republic. Never, according to another paper, had there been a “greater legal and moral entanglement than this question.” Carry on the cause of the Amistad, the abolitionist Gerrit Smith joyously exclaimed in the Emancipator on the day court proceedings began. “God has ordered them [the abolitionists] to hasten the overthrow of slavery.” In the same paper, a lady from Hartford expressed the hope that the trial would “open the eyes of the good people of this State upon our most horrible system of slavery, and the dreadful cruelty of the slave trade.” Timed for the opening day of the trial, William Cullen Bryant’s poetic lines commemorating what he called the African Chief appeared in the Emancipator as an attempt to immortalize Cinqué:
Chained in a foreign land he stood,
A man of giant frame,
Amid the gathering multitude That shrunk to hear his name—
All stern of look and strong of limb,
His dark eye on the ground—
And silently they gazed on him As on a lion bound.
Vainly, but well, that chief had fought—
He was a captive now;
Yet pride, that fortune humbles not,
Was written on his brow.
The scars his dark broad bosom wore
Showed warrior true and brave;
A prince among his tribe before,
He could not be a slave.8
The Spaniards’ counsel emphasized the primacy of property rights in his argument against a writ of habeas corpus. Attorney William Hungerford opposed releasing the blacks on the ground that his clients, Ruiz and Montes, claimed the captives as their property. He invoked the law of nations, American law, and treaties between the United States and Spain. Moreover, Hungerford said, the matter had to come to trial because Lieutenant Gedney also had a libel pending before the district court. The court could not set the law aside because of an appeal to abstract rights allegedly guaranteed by some amorphous higher law.9
Judge Thompson, however, allowed arguments on the petition for a writ of habeas corpus, permitting an inquiry into the cause of commitment and furnishing the abolitionists with their first victory by his declaration that all issues in contest could come before the court.10
Further entanglements became apparent when other principals spoke. The United States district attorney, William S. Holabird, explained that the Spanish minister in Washington had officially requested the return of the Amistad and its cargo as property under Pinckney’s Treaty of 1795. To win executive control over the blacks, as Forsyth had instructed, Holabird declared that if the court should find the captives to be slaves, he hoped that it would allow the United States government to comply with the Spanish claim. If the court decreed that the blacks were not slaves but “negroes and persons of Color” taken illegally from Africa, he hoped that it would authorize the White House to transport them to Africa. Henry Green and his four companions, who had first come across Cinqué and the others on the New York beach, had likewise filed a libel in district court for salvage of the Amistad and its cargo. According to their attorney, Governor William W. Ellsworth of Connecticut, they had suspected that the blacks had “feloniously obtained” control of the vessel and had therefore forced Cinqué and his accomplices to “surrender up themselves.” Had Green and the others not been on the beach at “great risk of life,” the argument went, Gedney would have been unable to seize the ship and cargo.11
As the proceedings continued to become more complex, Judge Thompson realized that this was no ordinary hearing and that he confronted momentous issues. That same morning, Judge Judson, who had opened the district court proceedings for accepting the filing of libels in the case, strongly implied that salvage claims against the blacks were invalid when he explained at the hearing that only property was liable for salvage and that the state of Connecticut would not regard the blacks as property. He saw no way the district court could order a sale of blacks in Connecticut.12 Hungerford’s partner in the case, Ralph Ingersoll of New Haven, argued against a writ of habeas corpus and tried to shift the thrust of their case from the status of the girls to the criminal charges against the adult males of the Amistad. The blacks were slaves, he insisted, and a federal warrant against them for murder and piracy had necessitated the setting of bond to hold the three girls as witnesses. Furthermore, Montes had filed a separate libel in district court for the youths as slaves, claiming he had bought them in Cuba, where slavery was permitted. According to treaties between the United States and Spain, Ingersoll argued, the girls should be returned to his client at no loss. Judge Thompson allowed the blacks’ attorneys time to prepare an answer. Court was adjourned until the following morning.13
Theodore Sedgwick opened the next day’s proceedings with a long and passionate argument. Described as an “iron-faced man” from Philadelphia, Sedgwick clearly wrote most of the argument for the blacks. Who could have guessed, the New York Advertiser & Express wondered, that the Mandingo words Sedgwick had learned while engaged in the African slave trade would now prove helpful in defending victims of that practice? None of the blacks were legally slaves, Sedgwick declared; they were “natives of Africa,” born in the district of Senegambia and seized contrary to international law, the law of nature, and Spanish laws, treaties, and ordinances. After outlining the events leading to the mutiny, he presented the affidavits of John Ferry and Augustus Hanson, both native Africans who after talking with the girls were convinced that they were native Mandingoes. The blacks were not slaves but kidnapped Africans; Ruiz and Montes had no case.14
Ingersoll countered with another argument against a writ of habeas corpus. The circuit court, he declared, should not deal with this case while it was pending before the district court. The Spaniards’ counsel had libeled the blacks as Spanish property, and the United States had brought a libel suit because of the Spanish minister’s demand for their restoration under Pinckney’s Treaty. The district attorney’s libel also asserted that if these blacks had been illegally imported into the United States for sale as slaves, the congressional act of 1819 authorized the president to send them back to Africa. On these grounds, Ingersoll asked, could the circuit court issue a writ of habeas corpus and “take the whole case out of the hands of the district court?”15
At this point Roger S. Baldwin rose to deliver the major argument in behalf of a writ. Its purpose, he declared, was to establish that the authorities illegally held the blacks as property and that the court could not violate their constitutional rights as persons by retaining them in custody while settling other questions. Furthermore, Baldwin asserted, Gedney had no right to seek jurisdiction in Connecticut, for the seizures had taken place in New York: “If a party can, for the mere purpose of changing the jurisdiction, go to another state, he is equally at liberty to go where he thinks it may be most for his interest to have his libel tried.” And now Gedney claimed a “meritorious service”—not to “these poor Africans, by saving their lives, but, by reducing to the condition of slavery, men who, when he found them, were free.”16
Baldwin held that Gedney had had no right to treat the blacks as property before the courts had decided their status. “Every presumption is,” he said, “that all beings, who have the form of our nature, are free.” The marshal, through a “most liberal construction” of the warrant, took the blacks into custody. His federal warrant authorized seizure of the vessel and the cargo; but he wrongfully supposed the blacks to be slaves and took them under the name of cargo. Did anyone have the blacks in his possession when Gedney arrived? Or were they free, “themselves in the command and possession of property?” Gedney admitted that he had found them in control of the vessel. The blacks were free when seized, Baldwin insisted, and American law prohibited their enslavement. The district court lacked jurisdiction because the blacks were not property but human beings.17
Color was the difference, Baldwin lamented: “It is only when men come here with a black skin, that we look upon them in a condition in which they may by any means be made slaves. But, when we find them here from the coast of Africa, the same rule must apply to the black as to the white man.” Under the laws of slavery in Connecticut, Baldwin declared, one will not find that “every colored man is presumed to be a slave, until the contrary is shown.” The Amistaďs blacks came to the United States for asylum, he said, adding, “I say there is no power on earth that has a right again to reduce them to slavery.”18
Baldwin rejected the opposing counsel's argument that the three girls were slaves. They were between the ages of seven and nine, he declared, native Africans incapable of speaking any language other than their own. “Does not this honorable Court see that they cannot be slaves?—They were not born slaves,—they were born in Africa.” Baldwin insisted that Montes must have known that the girls were not slaves. He knew they did not speak either Spanish or Portuguese; he knew from their ages that they had probably been brought to Cuba in violation of Spanish law. Baldwin dramatically asserted that Montes bought them from a pirate and was as guilty as the slavers in Africa.19
Baldwin cited the Antelope case of 1825 in claiming that American courts could decide property titles only in cases of captured fugitive slaves. Two central facts had emerged in that case: the property in question had been taken illegally, and the African slave trade was legal under Spanish and Portuguese law. The court simply restored the blacks to their condition of slavery. But there was a critical difference between the Antelope and the Amistad cases: by 1839 Spanish, Portuguese, and American law had declared the trade illegal. “What, then,” Baldwin asked, “is the pretense for the interference of the Spanish Government?” The blacks are natives of Africa, he insisted, not fugitives from justice. “Are they to be judged by Spanish laws, or by our own laws, or the laws of nature?” The Spanish claimants “deserve the penalty of death for piracy, which would be awarded to any citizen of the United States, who should be found engaged in the same manner.”20
Baldwin argued that the president could not comply with the Spanish minister’s demand; to do so would make Americans into “slave catchers” for a foreign government. “What law,” he asked, “has imposed upon the executive of the United States the obligation to hunt up the runaway slaves of Spanish subjects, and restore them?” Baldwin was astounded by the district attorney’s claim that the circuit court ought to hold the blacks until it could determine whether the president should return them to Africa: “This is a strange process—imprison them, in order to ascertain that they are free!” The only two laws remotely relevant to this situation were not applicable, because they pertained to slaves brought into the United States on American vessels. If the Amistad blacks were slaves, the district court had no authority to order their seizure. If they were not slaves, the executive had no power to send them to Africa. The blacks were not slaves and not property. And yet the prosecution wanted the American government to act as “auxiliary to persons engaged in this foul traffic.”21
Ingersoll disputed Baldwin’s argument. Pinckney’s Treaty required the restoration of all ships and merchandise taken by pirates. The United States government at the present time, he insisted, recognized slaves as property. When American vessels wreck in Cuba, Ingersoll pointed out, they seek restoration; when an American ship ends up in British possessions with slaves aboard, the government in Washington calls for their restoration. The Treaty of Ghent in 1814 provided a commission to deal with claims resulting from slaves carried off during the war. The Antelope decision upheld the restoration of a captured foreign slaver. According to international law, the African slave trade was legal to those nations authorizing it. “A foreign vessel, captured in time of peace, engaged in the slave trade, will be restored, even if the nation to which the vessel belonged, had prohibited it.”22 Ingersoll insisted that a writ of habeas corpus had no bearing on the Amistad case. Baldwin had no evidence that the blacks had come from Africa. The only question before this court was whether they were property under Spanish law. To settle this issue, Ingersoll claimed, it might prove necessary to inquire into Spanish laws in Cuba. And yet Baldwin had demanded a writ of habeas corpus that would prevent such investigation by immediately setting them free. It was “utterly unfounded and entirely gratuitous” to argue questions about the slave trade and whether Ruiz and Montes knew that the blacks had come from Africa. The court’s only responsibility was to decide whether the treaty of 1795 required restoration of the blacks to their owners, or whether the American law of 1819 called for their return to Africa.23
The third attorney for the blacks, Seth Staples, countered with the argument that a writ of habeas corpus was in order because the real issue in the Amistad case was individual liberty, not rights of property. The children had asked only that the court protect their personal rights through the “process which renders all our guarantees of civil liberty available—the great palladium of civil liberty.” The writ of habeas corpus, Staples asserted, was not concerned with the “lower and more vulgar objects of property.” It reached “the higher elements of society—the life, liberty, and safety of the citizen.” Arguments over property could not interfere with “this great conservative writ.” To his opponents in the courtroom, he dramatically declared, “Go on with your litigation, as to the Amistad and her cargo, to your heart’s content; but take not these children and deprive them of the habeas corpus, under pretext of a question whether they are brutes or human beings.”24
At the beginning of the afternoon session, Judge Thompson prepared to give his decision on the jurisdictional question as the grand jury filed into the courtroom. The court, he instructed the grand jury, did not have jurisdiction. Gedney had captured the ship and its cargo in New York, which meant that a trial for murder and piracy could not take place in Connecticut. While the blacks’ counsel tried to sort out the ramifications of this apparent victory, Thompson continued. If an offense had occurred, he declared, it had done so “on board a Spanish vessel, with a Spanish crew and commander, and Spanish papers, as a mere coasting vessel, on the Island of Cuba.” American courts had jurisdiction only over offenses against American statutes or against the law of nations. Furthermore, there was not enough evidence for a grand jury indictment.25 A ripple of excitement spread through the courtroom as the recognition set in that the captives would not stand trial for murder or piracy.
When order returned, Thompson expressed concern about what would happen to the blacks if released: “The great difficulty is they are now in the custody of the law, and what is to be done with them?” Staples surmised that if the blacks had committed no offense against American law, “nothing [could] be done with them.” The claim in this court was that they were property. But if released, the judge pressed further, were there Connecticut laws to provide for them? Staples replied that the state would provide for them as “foreign paupers.” The state’s citizens, he was sure, would hesitate to give them up to “pretended friends, who might possibly stop short of Africa.” When Hungerford objected that the court was not to go into the “merits of the case,” Thompson reminded him that when a party brought up a writ of habeas corpus, the court had to examine these matters to determine the true situation. If the blacks were in the custody of the court, it was “necessary to inquire into the process which [held] them.”26
Probably sensing that the judge was leaning toward the defense argument, the United States district attorney repeated the government’s position that there had been a violation of American laws prohibiting the importation of slaves into the country. The vessel that entered the United States was under the control of Africans, Holabird insisted, adding, “As to the national character of that vessel, I contend nothing is yet known.” It was common practice for a slaver to sail under another’s flag. The vessel might even prove to be American. If an inquiry found it to be American, a violation of American law would have occurred and the court would have jurisdiction. While an investigation was under way, he insisted, the blacks had to remain in jail.27
Hungerford believed it unnecessary to inquire into the morality of slavery; the only question before the court was whether his clients had the right to buy property in slaves. Slavery was legal in Cuba. Although an Anglo-Spanish treaty prohibited the slave trade, the United States had a treaty obligation with Spain to return “every species of property” to claimants. If both signatories to the treaty recognized slavery as legal, it followed that if a slave escaped from one territory to the other, the latter was bound to return him. And since slavery was legal in the United States, that party had a right under comity to seek the return of his slave. If the Spaniards were entitled to these slaves, either by principle, comity, or treaty, the United States was bound to deliver them.28
Staples argued that the law of 1819 did not permit America’s armed vessels “to cruise for slavers.” They had to be “instructed, commissioned, authorized.” American cruisers could not seize a suspected slaver without specific authorization from the president. No evidence showed that Lieutenant Gedney had such authority. His responsibility was to survey the American coast. Yet Gedney and his men seized the vessel and its cargo as property and demanded salvage. Staples asked, “Can the district attorney avail himself of their act, and say they took it under this law, when they say they did not?” Furthermore, under the law the commander of the vessel seizing a slaver was to take everyone aboard to the district marshal. But the marshal took possession of the blacks under the interpretation he gave to the term cargo contained in the warrant. To establish his case, Staples insisted, the district attorney had to show that Gedney was commanding an “armed public vessel, commissioned to do this service.”29
Staples expressed surprise that Ruiz, who could speak English, had not appeared as a witness. But, of course, neither he nor Montes, Staples remarked, would swear under oath that he did not know that the blacks had just come into Cuba. The dialect of the blacks was the most conclusive evidence that they were native Africans recently imported into Havana; it was spoken nowhere but along the African coast. “And yet I am told that Ruiz will come here and swear that he did not know that they came from Africa,” Staples challenged him. “Let him come here and encounter the perils of perjury, if he dare.”30
Staples concluded with the argument that the burden of proof lay with the people claiming these blacks as slaves. In the circuit court case of La Jeune Eugénie of 1822, Justice Joseph Story had declared that a foreign claimant of a vessel seized for engaging in the slave trade had to present evidence of ownership. A court, Staples asserted, could not allow the withdrawal of property from its jurisdiction without proof from the owner. The presumption was that “every man [was] born free.” An admiralty court could not be “converted into a court for seizing runaway slaves, and restoring them to foreign claimants.” According to one observer, Staples spoke with “impassioned strain” in declaring that the only question of property involved in the Amistad case was “the inherent property of liberty”—that “blessing which was next to life itself.”31
The next day, September 21, Judge Thompson warned that the court was not ready to render a verdict but was unwilling to approve a writ of habeas corpus that would release the prisoners. He noted that the attempt to dismiss the case had placed the court in an embarrassing position. The only question before the court was procedural; it could not deal with the “merits of the whole case.” Yet consideration of the writ allowed an examination of all issues touching upon the request. If the district court could properly detain the blacks, Thompson asserted, the circuit court could not interfere. The judge digressed for a moment in declaring that personal feelings could not affect the outcome: “However abhorrent it may be to keep these persons in prison, or to view them in the light of property, and however desirous the court might be that they should all be set at liberty, they must not permit their private feelings to govern them in deciding upon the case before them.” Justice had to prevail, Thompson insisted, “however painful it might be.” Despite the argument by the blacks’ attorneys that there was no right of property in human beings, Thompson held that legally there was. Foreign powers had permitted slavery; the United States had signed treaties with them; and the United States Supreme Court had recognized the institution. In the case of the Antelope, the Supreme Court was equally divided over the question of property in human beings; but it decreed that the owner bore the burden of proving his property. Thompson declared that “the prisoners could not be taken out of the jurisdiction of the district court on the writ of habeas corpus.”32
Elated at the judge’s findings on the writ, Ingersoll sought to bring the arguments to a close by proposing that counsel for each side prepare a brief so that the court might make a decision. He would confer with his opponents to see whether they might reach agreement by the opening of the afternoon session. If not, they would continue arguments at that time. Thompson adjourned the proceedings until 2:00 P.M.33
Judge Thompson opened the Saturday afternoon session by asking counsel on both sides whether they had reached an agreement to furnish briefs. If so, he could take them home and write an opinion. But Ingersoll expressed regret that they had not. Baldwin remarked, “[I]n a case of jurisdiction, where the personal rights of a party are concerned, those who maintain the jurisdiction should come prepared to argue the case.” Hoping to keep the issues before the public, he insisted that the matter demanded prompt investigation and declared it inconvenient to prolong the argumentation. Staples agreed. He also had other obligations, but he wanted the issue settled immediately because “forty human beings” were unjustly incarcerated. Thompson replied that he had hoped for more time to examine the case but that if the blacks’ attorneys insisted, the arguments would proceed.34
Baldwin opened his final argument with the assertion that the only question before the court was whether it had jurisdiction over the persons applying for relief under the writ of habeas corpus. Thompson agreed. In the Antelope case, Baldwin explained, the persons found on the Spanish slaver were slaves captured from slave vessels. Authorities seized the slavers because there was reason to believe that they intended to violate American laws on the slave trade. The slavers had prima facie jurisdiction over the slaves, and the capture was legal. The slaver was a Spanish vessel sailing for Havana, carrying regular papers, and holding the slaves as property. The principle was this: in returning the property, the Supreme Court was “restoring things to the condition they were in when the first unlawful act took place.” But the Amistad case was different because the prisoners were not in the condition of slaves at the time of capture: “They were prima facie free when first found, and they must be treated as persons.” They had rights given by God. Gedney had begun the case against vessel and property, not against persons. The blacks were not included in the warrant. Indeed, Baldwin asserted, the president himself did not have the power to make decisions relating to personal liberties in the states. If Ruiz and Montes wished to prosecute their claim, they had to do so in the common-law courts of Connecticut, where there was trial by jury. In the meantime, the blacks should go free.35
As the antagonists repeatedly hammered out their arguments, there was little indication that anything important would come out of the trial. But the tempo of proceedings was about to change—as a result of actions not by either counsel but by the Van Buren administration itself.
Apparently the White House noted that the growing public sympathy for the Amistad blacks could cause political damage, for Holabird made a statement that stunned everyone in attendance. He first explained that he wanted only to see the implementation of the “benevolent intentions” of the law of 1819 relating to blacks illegally introduced into the United States from Africa. “I stand here,” he surprisingly exclaimed, “to contend that these blacks are free men—that they have been brought within the jurisdiction of the United States, . . . and if found to be, as I suppose, native Africans, they may be sent to their native land.”36 Clearly the Van Buren administration had discerned its district attorney’s inability to prove them slaves and subject to return to Spain under Pinckney’s Treaty. It now hoped to show them to be victims of the African slave trade—but still under the president’s care. Since popular interest was building to the point that the case threatened to get out of hand, the safest course appeared to be to rid the nation of the blacks by admitting that they were free and subject to return to Africa. Though the strategy had changed, the objective had not: the White House sought to prevent political repercussions.
Staples was incredulous that Holabird now argued that the blacks were free men. In a statement revealing his deep distrust of the Van Buren administration, Staples remarked that the district attorney’s stance reminded him of the saying “[Slave me from my friends, and I will take care of my enemies.” Why had the White House suddenly agreed with the abolitionists that the blacks were free? Why had Holabird made a concession undermining the Spaniards’ property claims and providing the captives with some hope in the district court? All Staples could mutter was “What now?” He concluded at 7:00 P.M., ending five hours of argument by counsel on both sides.37
Indeed, what now? Judge Thompson might have asked himself this question on Monday morning, September 23, as he prepared to give his decision before a jammed courtroom. He denied the motion for a writ of habeas corpus, refusing to release the captives and leaving their disposition to the district court. Yet he noted his desire to have the district attorney accompany one of the defense attorneys to Montauk Point to determine the exact point of seizure by Lieutenant Gedney. Thompson was worried that the complexity of the proceedings had made his single task difficult for the public to understand. Since the community’s feelings were deeply involved in the issues, he feared misunderstandings about the real questions before the court. Though the case had taken on the appearance of a fight over slavery, the court would not make a decision on the “abstract right of holding human beings in bondage.” “My feelings,” the judge asserted, “are personally as abhorrent to the system of slavery as those of any man here, but I must, on my oath, pronounce what the laws are on the subject.” Thompson insisted that the question of liberty did not play a role in his decision. The court here could not determine whether the Spaniards had a right to the blacks as property, or whether the matter fell within the slave-trade provisions of the act of 1819. Interested parties could bring suits before the district court, where its decision would be subject to appeal to the circuit and then to the Supreme Court. Before adjourning, Thompson admonished the large number of “note-takers” in the room to relate a “true representation” of the decision.38
Immediately afterward, Judge Judson convened the district court in the same room. He directed the district attorney and counsel for the blacks to go to Montauk Point to determine where Ged- ney had seized the Amistad. In the meantime the court would adjourn until the third Tuesday in November, when it would meet again in Hartford. Though the presumption was that the court would allow the blacks’ release on bail, it had to be on “appraisement,” he explained, and their counsel would not permit an act tacitly admitting their status as property. The Amistad captives remained in the New Haven jail, although with a favored incarceration that permitted visitors, religious instruction from Yale faculty members, and exercises on the green.39
The reaction to Thompson’s decision was mixed and immediate. The reporter for the antislavery society proclaimed that the blacks’ attorneys had succeeded in portraying the “hideous bearing” of slavery in a way “calculated to open the eyes of the people in the free states to the extent of their entanglements in the guilt and dangers of slavery.” The Charleston Mercury criticized the judge for being “as great an abolitionist as the TAPPANS” in his reluctance to admit that American law protected slavery. But the New York Commercial Advertiser warned Southerners to stay out of the case and allow the Amistad affair to die on its own. Nonetheless, nearly all Southern papers, according to the New York American, continued to find “color incompatible with freedom.” Distinctions based on color, however, were not confined to the South. The Morning Herald of New York rejoiced in the abolitionists’ suffering over the decision on a writ of habeas corpus. They now had to “send home their darkies and disperse—love’s labor being entirely lost.” The Emancipator ignored the maze of legal arguments and assailed Thompson for affirming the central reality in the case: that property rights affirmed by positive law had preference over personal liberty drawn from the law of nature. He had dishonored the sacred writ of habeas corpus in evading responsibility for a decision touching the most sensitive issues of the age.40
Judge Thompson may not have considered all of the following, but the issuance of a writ of habeas corpus would have had broad legal and political implications that few in the United States could have accepted. It would have set the blacks free, resolving the question of whether they were slaves without permitting a hearing on the libels before the district court. It would have been a tacit admission that the Amistad blacks were human beings having rights to liberty by any means, including mutiny. It would have denied the court’s jurisdiction in cases similar to the Amistad case, implying that no judicial process was available to halt a further influx of mutineers. And it would have invited slaves from other countries to rebel and then seek asylum in the United States. In addition to causing obvious problems, the latter would have been embarrassing on the diplomatic level. At the same time when the American government was protesting British decisions freeing American slaves in the Caribbean, a Supreme Court justice would have been offering freedom in the United States to rebellious blacks. Furthermore, a verdict for freedom would have made the Spanish guilty of violating their anti-slave-trade treaties, providing the British with a pretext for intervening in Cuba and endangering American interests in the island. Granting a writ would also have condoned insurrection among blacks, who, whether or not legally slaves, could argue that the higher law of morality governed human relationships and that, regardless of positive law, the act of enslavement was wrong. Finally, such a decision would have enhanced the argument that human bondage was morally wrong even if it accorded with the laws of a country.
The most important observation about Thompson’s decision is that, despite his aversion to slavery, he knew that American law recognized the institution as legal. He also realized that his verdict provided proslavery groups with their strongest defense, and yet, as several abolitionists believed, the only way to destroy slavery was to create a public animosity so strong that it forced a change in the law. Sedgwick had earlier warned that working within the legal system was the only way to defeat slavery. On hearing Thompson’s decision, he expressed agreement and remarked to Tappan, “It is too late or rather let us hope too early to contend in the courts of the U.S. that there can be no property in Human Beings—in Africans at least.”41 Tappan still believed that moral suasion could convince Americans that slavery could not exist in a Christian nation. Perhaps success could come from a combined legal-moral approach that stressed the inhumanity of slavery.
To the abolitionists the circuit court ruling was probably no surprise—their objective was to keep the Amistad case before the American public, and in that they were successful. Interest in the captives had risen considerably, for even the most racially prejudiced American could feel paternalistic concern over the blacks as long as they were helpless and posed no threat to the white community. Once Northerners were satisfied that expressions of sympathy for the Amistad blacks did not automatically mean support for the abolitionists, the affair became a cause that many Americans could adopt, whether for or against slavery. For these Americans, concern for the captives was an act of charity, not a suggestion either to move against slavery or to struggle for racial equality.
The abolitionists had not left Hartford empty-handed. They had made a notable advance on one critical level: many more Americans had become acquainted with the Amistad affair. The abolitionists had publicized the enormous gulf between positive and natural law in regard to slavery, their clients had escaped trial on capital charges, and the Van Buren administration had admitted that the captives were not slaves. The outcome encouraged the abolitionists to push for a court settlement on the question of whether the blacks were slaves and, therefore, property.
Thompson had correctly recognized that this was no ordinary trial and that he had indeed faced momentous issues.