If the first phase of district court proceedings had moved the blacks closer to freedom, they still had a long way to go. The trial’s postponement gave all sides time to assess their positions. Whereas the defense had been relieved to have an additional period for Covey’s recovery, the other parties must have been concerned that the abolitionists would use the interval to promote their case in the press. Domestic and foreign pressures dictated that the Van Buren administration take some sort of action. The election campaign was near, and the Spanish government was increasing its demands for the blacks’ return. The delay in court proceedings might provide the White House an opportunity to reverse the course of events and assure the blacks’ status as slaves, returnable to Spain under Pinckney’s Treaty.
During the interim the Spanish minister in Washington, Pedro Alcántara de Argaiz, resumed his protests against America’s handling of the Amistad affair; but now his argument made a subtle and important shift in emphasis. Forsyth had recently assured Argaiz of a favorable outcome in the trial by sending him a copy of Attorney General Felix Grundy’s opinion on the case. But the legal arguments that seemed so sound in the statement had not stood up in Hartford, and when the district judge postponed the trial until January, the Spanish minister repeated his earlier complaints. But instead of dwelling on the treaty of 1795, Argaiz declared that the “public vengeance had not been satisfied” and that his government did “not demand the delivery of slaves but of assassins.” Perhaps the Spanish government had joined District Attorney Holabird in recognizing the diminishing prospects of securing the blacks’ return as slaves.1
Forsyth assured Argaiz that the delay in fulfilling the treaty had resulted from causes “beyond the control” of the executive. Argaiz, the secretary continued, did not understand the “true character of the question” and the “rules by which, under the constitutional institutions of the country,” the outcome had to take place. The judiciary was an independent part of the American government, and the president could not interfere with its proceedings. But, Forsyth promised Argaiz, final settlement of the case would emanate from “no other source than the Government of the United States.”2
It became obvious that the Van Buren administration expected a favorable decision from the district court and that its principal task in regard to Spain was to keep the Amistad affair from becoming diplomatically disruptive. The White House’s preference was for Judson, as a loyal and ambitious party member, to rule that Pinckney’s Treaty bound the United States to return the ship, cargo, and slaves to Spain as property. Treaties were part of the supreme law of the land, and Judson certainly knew that. At the same time, however, the treaty of 1795 had permitted Holabird to leave the door open during circuit court proceedings for use of the congressional act of 1819 in returning the blacks to Africa, For every conceivable reason, it appeared, Judson would close the matter in a way acceptable to the administration. In the meantime Forsyth had to ease Argaiz’s concern.
To assure a speedy end to the Amistad affair, the White House agreed to a suggestion from the Spanish minister—that immediately after Judson’s decision the United States provide a ship to transport the blacks to Cuba. Indeed, the president and his secretary of state were so confident of the outcome of the trial that they made special arrangements with the Department of the Navy temporarily to divert the USS Grampus, under the command of Lieutenant John S. Paine, from its anti-slave-trade patrol along the West African coast in order to carry the blacks to Havana. If Forsyth proved correct in asserting that the district court would order the return of the Amistad, its cargo, and the blacks, Argaiz wanted to follow his advice, as Argaiz wrote, to “take charge of them as soon as the court. . . pronounced its sentence or resolution.” The Amistad was in no condition to make a voyage to Havana, and if the United States provided a ship, the Spanish government would regard this as an “act of generosity” and a “most particular favor.” The president approved the suggestion because, he claimed, the Amistad captives had insisted that they were not slaves and that their return would allow them to prove this in Cuban courts.3
The Van Buren administration had dropped its rigid claim that the Amistad blacks were slaves, returnable to Spain under the treaty of 1795. Holabird had first suggested this change in direction when he admitted in circuit court that the blacks were native Africans. Now, the White House tacitly conceded that the blacks might be free, and the administration was willing to give them the opportunity to prove their case in court—albeit a Cuban court. But appearances were deceiving. Arguments in the district court had caused a shift in tactics, not a change in policy. The objective was still to rid the administration of the problem before the presidential election of 1840. By adopting either stance—referring to the blacks as slaves or as native Africans—the White House intended to help them leave the country. Whether they went as property to Spain under Pinckney’s Treaty or as accused assassins to Cuba, they would be outside the United States.
At this point the White House took a major step in an obstructionist strategy that soon grew into executive interference with the constitutional rights of due process. Forsyth expected the district court to uphold the administration, and he knew that if that happened the abolitionists would push for an appeal. The plan for a quick removal of the Amistad blacks to Cuba by an American naval vessel was designed to prevent this. Forsyth instructed Holabird to work with the United States marshal and the naval officer in implementing the plan. The vessel was “to be in readiness to receive the negroes from the custody of the marshal as soon as their delivery shall have been ordered by the court.” If the court should make the decision “as is anticipated,” Forsyth explained, the president’s order was “to be carried into execution, unless an appeal shall actually have been interposed.” The most critical part of the directive, however, was the following: “You are not to take it for granted that [the appeal] will be interposed.” In the unlikely event that the decision went the other way, Forsyth added, Holabird himself was to move an appeal.4
Questions immediately arise about the ethics, if not the legality and constitutionality, of such a scheme. Forsyth’s directives from the president clearly authorized the district attorney to subvert the judicial system by taking the blacks out of the country without allowing time for their counsel to exercise legal and constitutional rights of appeal. Surely this ill-considered approach by the White House resulted more from anxiety over the approaching election than from illegal intentions. But, in either case, the result would be the same: as in the Ruiz episode in New York, the White House was willing to overstep its authority. This time, however, the move was more serious. President Van Buren was condoning executive interference with the due process guarantees of the Constitution.5
The secret arrangements for this action reveal how careless the administration was in developing such a mission. On January 2, 1840, the Department of State sent a memorandum to Secretary of the Navy James K. Paulding, ordering him to have an American ship anchored off the port of New Haven by January 10, ready to take the blacks to Cuba. On the “real condition” of the blacks, Forsyth wrote Holabird, the president had directed Gedney and Meade to accompany the blacks to testify in whatever proceedings might take place in Cuba. These orders were top secret—“not to be communicated to any one.” Paulding instructed Lieutenant Paine to have the Grampus in New Haven no later than January 9.6
Paine, however, warned of probable snags in the expedition. Because of cold weather, he explained to Paulding, he had been unable to have the schooner fitted for sea and could not be certain of being in New Haven on time. Iced-over waterways might make New Haven inaccessible, raising questions about the practicability of moving the blacks from that point. Also, space limitations made it impossible to accommodate the blacks below, along with one watch of the ship’s crew. They would have to be “deck passengers” and kept in irons. Thus they would suffer a great deal under the best of circumstances. Paine did not want to think about the havoc a storm would bring. No vessel the size of the Grampus could properly fit all of its own officers and crew at one time below deck; only a frigate could do that. Paine recognized that an “important and delicate duty” had fallen on him, and he tried to make adjustments. If the commanding officer in the area did not object, he would allow only enough mates on board to work the vessel— about forty—and proceed to Havana. Upon completion of the mission, he would return to Norfolk and fill up the crew from the receiving ship and go to Africa. The procedure should cost only a few days and would allow him to replenish provisions.7
Time was the most important factor, for the American vessel had to whisk the blacks away immediately after the court’s decision. Paulding responded to Paine’s concerns on January 6, repeating that it was vital for Paine to be off New Haven no later than January 10. He could return to Norfolk for supplies and repairs after completing the mission. The secretary of state wanted Paine to contact Holabird immediately upon arrival in New Haven about receiving the earliest possible news of the court’s decision and carrying out the assignment. The president had ordered the marshal to place the blacks in Paine’s hands as soon as the court made its decision. Paulding, meanwhile, sent Gedney a packet containing a letter from the Spanish minister introducing the two American officers to the captain general in Cuba. The matter had become so urgent that Paulding refused a letter of resignation from an officer on the Grampus because the vessel was under orders for “special and delicate service.”8
Despite obvious risks to life, the White House had hurriedly approved a plan designed to fulfill its political objectives. Both the ship and the crew, not to mention the blacks, would be in danger because of the ice around New Haven and the possibility of bad weather en route to Cuba. More important, the blacks would be exposed to the elements by having to sleep on deck. The plan had the elements of a potential tragedy with domestic as well as foreign repercussions.
For a brief moment the details appeared to come together. Paine arrived in New Haven during the night of January 9 and entered the harbor the following morning, exactly on time. After informing Marshal Willcox of his orders to take custody of the blacks after the trial, Paine persuaded him that because of the ice it would be more feasible to pick them up at New London. As the Grampus proceeded to New London, Captain Andrew Mather of the revenue cutter Walcott offered to help execute the president’s order. Willcox accepted the offer.9
At this point complications developed. Paine noticed an error in the president’s warrant contained in the State Department letter. It stated that the Amistad case was pending before the circuit court rather than before the district court. In a remarkable oversight, the administration in Washington had made a mistake in the warrant that could provide a legal ground for blocking the removal to Cuba. Under Holabird’s advisement, the marshal immediately sent an express to Washington to have the warrant corrected. Nor was this all. The navy’s area commander had not received Paulding’s approval of Paine’s reduction of the crew; he ordered Paine to have a full contingent of men. Paine had already “dreaded” the administration’s plan. Now it seemed to be falling apart, and Paine knew that the blacks would be the victims. Upon arriving in New London, he intended to charter a small vessel that would carry half of the blacks and some of Paine’s men along with Gedney or Meade and one of Paine’s officers. The remainder of the blacks would be on the Grampus, which would convoy the other vessel to Havana. Paine’s most important consideration was “humanity.” But he also did not want to open the administration to charges of cruelty and thus to strengthen the abolitionists—the “faction” that, as an American, he “could wish to see destroyed.”10
Problems continued to mount. Paine arrived in New London on January 13, six hours later than expected, because of the ice. He immediately became concerned that the paperwork connected with the court decision (preparing a copy of the proceedings to take with him to Cuba) would take several days and delay departure. The impression abroad seemed to be, Paine commented, that the Grampus was there to take the blacks to Africa, an opinion he did “not think proper to contradict.” Indeed, Lewis Tappan was among only a few who believed that the schooner was there to take the blacks to Cuba.11
But, shortly after Paine’s arrival in New London, matters brightened again when orders came from Paulding that settled Paine’s central concern: he could temporarily cut his crew to accommodate the blacks and, after completing the mission in Havana, return to Norfolk for repairs and supplies. To fill the need for officers, Gedney and Meade would provide their services. Paulding included the following instruction: “You will be careful to afford the Slaves every convenience and comfort in your power. As well from motives of humanity as to remove all just grounds of accusation both as regards the Government and yourself on an occasion so peculiarly delicate and which is liable to be so much misrepresented.”12
The presence of the Grampus in New London harbor heightened the abolitionists’ suspicions that the Van Buren administration intended to interfere. A recent issue of the Emancipator contained a serious indictment of the White House. The abolitionist paper claimed that a person of “great moral worth” and “officially connected” with these matters had recently talked with a “Spanish gentleman of standing, whose opportunities of knowing the state of this question [were] quite peculiar and official.” The Spaniard declared that the White House was prepared to compensate Ruiz for the value of his property if he would drop the case; but the government in Madrid was not interested. Argaiz contended that the nations must comply with the treaty of 1795, which required the United States to return the blacks. Abolitionists wondered whether the president was willing to employ virtual bribery to secure a favorable conclusion.13
To abolitionists, another sign of trouble came from the National Intelligencer in Washington, which they regarded as the administration’s supporter. An article signed “Justice” agreed with the president that his duty was to return the blacks as property to the Spanish claimants. Baldwin immediately sent a letter to the editors of the paper, arguing that the blacks had been kidnapped and that the paper’s position seemed to be an effort to influence a pending court decision by calling for executive interference with the constitutional functions of the judiciary. Matters involving ownership of property, Baldwin insisted, fell under the purview of the judiciary, not the executive. Pinckney’s Treaty declared that issues relating to the return of property came under the courts of either nation. Before there could be a delivery of merchandise rescued from pirates or robbers, two facts had to be clear: that those in possession of the property were pirates or robbers, which must be confessed or judicially determined; and that the claimant was the true owner. Though the property might come from a Spanish port and might be accompanied by papers that were prima facie evidence of Spanish ownership, no lawyer could argue against an American’s right to seek to prove title in the courts by showing that the papers were fraudulently secured or, as in the Amistad case, were used to cover persons or property fraudulently substituted for that described in the license.14
Only the courts could resolve these questions, Baldwin insisted. If the executive dealt with them, the claimant had no right of appeal, because that office lacked judicial powers. This would be dangerous enough if the matter concerned only property rights. “How much more important is it,” Baldwin wrote, “that such powers should not be assumed by the Executive, when questions of personal liberty, and perhaps even of life and death, are involved in the issue.” The Antelope case was relevant only because it involved the obligation of the courts to rectify the situation by returning matters to what they had been at the time of capture. But in that case, Baldwin emphasized, the Supreme Court was equally divided over the obligation to restore property. The Amistad blacks, however, were never slaves and hence never property. They were kidnapped and taken to Cuba in violation of Spanish laws. The schooner’s papers described them not merely as slaves but as “ladino slaves,” a term not applicable to African blacks imported since 1820. There was no description or designation except by Spanish names that the blacks themselves did not recognize. The license was a “cover” by Ruiz and Montes to ship bozales, as Ruiz and Montes knew. When seized by Gedney, the Africans were “de facto as well as de jure free.”15
Baldwin declared that in focusing on the property issue, Americans had failed to recognize that the real significance of the Amistad case lay in the primacy of natural rights. The question before the court was “whether men and children who were born free, & who have never been held as slaves for a moment, except as the victims of piracy and fraud, shall when they have escaped from bondage and sought an asylum in our country, be reduced to slavery by the active interference of the Executive, or of the Judicial tribunals of our country.” Even if Spanish municipal law permitted the enslavement of free people illegally imported, Baldwin continued, the question of liberty or property had, as the United States government recently told Lord Palmerston, to be “determined by some other test.” The Africans had “never voluntarily submitted themselves” to either Spanish or Cuban municipal law. The blacks were “equally free, by the laws of Spain—and of the United States, as well as by the laws of Nature.”16
Tappan was also becoming increasingly wary of the administration in Washington. To John Scoble, Tappan noted that Gedney had suddenly seemed willing to drop his libel if the process interfered with the United States’s effort to deliver the blacks to Spanish officials. If all parties withdrew their libels, Tappan feared, the district court would simply turn over the blacks to the president of the United States. But, fortunately, Green refused to drop his claim, and, as Tappan observed to Ellis Gray Loring, this would “keep the cause in the court.” The White House could not remove the blacks from the court’s jurisdiction unless by “some monstrous act of usurpation.” “We hardly think our Government will attempt it,” Tappan told Scoble. But, he added, we should be prepared for it. “I hope your Govt. will interpose.”17
Tappan was concerned that the blacks’ defense counsel had had great difficulty in securing testimony. In mid-December he wrote to Joseph Sturge that they got “no facilities” from the government in Washington. Despite their requests for State Department help in providing authentic copies of Anglo-Spanish treaties relating to the case, the defense attorneys had gotten no cooperation from Forsyth, who was, after all, a slaveholder. Moreover, British members of the mixed commission in Havana were reluctant to ask the Spanish governor in Cuba for certified copies of the treaties. They feared that such a request would be an “extra-judicial act,” subject to censure by their own government in London as well as by the one in Cuba. Yet the defense had to have copies for the trial, and Tappan asked Sturge to try to get them in London.18
The abolitionists’ fears were justified. No one could deny the political priorities of the Van Buren administration, and the wide array of rumors about its undercover policies were not far off the mark. But the issues had become so complex that to many persons unacquainted with the law the simplest and most obvious remedy was to accept the administration’s argument relating to Pinckney’s Treaty and to let the president deal directly with Spain in resolving the matter. Executive interference with judicial proceedings in New York, followed by a willingness to violate due process in New Haven, had not drawn public attention for two reasons: in the Ruiz episode White House correspondence was secret, and in the case of the Grampus the abolitionists could not have been aware of the administration’s intentions to interfere with the defendants’ right of appeal.
Other administration policies were questionable as well. The White House may have been sincere in wanting to cooperate with Spain by sending district court records to Cuba, but that act of apparent generosity carried serious overtones of impropriety. Since the return of the blacks to Spanish authorities was to follow a court decision favorable to the administration, this would have constituted a tacit admission that the blacks were assassins, as Argaiz now contended. The inclusion of the trial proceedings that led to this finding would not have done much for the blacks’ case in the hostile surroundings of Cuba. Furthermore, testimony by Gedney and Meade would have been injurious to the blacks’ cause; the two naval officers could not change what they had said in Connecticut without jeopardizing their salvage claims and opening themselves to charges of perjury. White House advisers had doubtless not thought out the ramifications of the initial decision to silence the Amistad case for political reasons.
District court proceedings resumed in New Haven on January 7, amid an atmosphere of great excitement. Students from Yale Law School, members of the Theological Seminary, and distinguished residents of the community all squeezed into the narrow confines, especially eager to hear testimony from the blacks themselves. At numerous points in the trial, Judge Judson had to rap the assembly to order, particularly after Baldwin drew cheers with his dramatic defenses of liberty. Tappan attended the trial and prepared written accounts of each day’s proceedings, which were published in full in the Emancipator. In the last days of the week-long session, spectators refused to leave the courtroom during the long recesses for fear of losing their seats.
Judson, of course, presided, austere and solemn, doubtless concerned about his own political tightrope. For the blacks, Staples and Sedgwick again joined Baldwin, and by now they had their arguments virtually memorized. Isham and Brainard took their places to argue for Gedney and Meade, and Ellsworth prepared to continue his losing battle for Green and friends. One change in personnel was the appearance of William P. Cleveland of New London on behalf of two Spanish owners of the cargo on the Amistad.19
Another change, a move that confirmed the abolitionists’ fears of collusion between their government and that in Madrid, came with Holabirďs announcement that the Spanish minister had “merged” the claims of Ruiz and Montes with that of the United States. He, as district attorney, would present them as one.20 For Tappan and others, the thought of combating two national governments in alliance probably confirmed the righteousness of their cause.
Defense counsel for the blacks once again entered a plea on jurisdiction, this one striking to the heart of the case by denying that the blacks were property. After repeating the arguments of the November session, the attorneys called two witnesses from New London: Sullivan Haley and Dwight P. Janes, the latter being the abolitionist who had first informed Tappan of the Amistad affair. Both men had been on the Washington when Judge Judson ordered an inquiry into the Amistad upon its arrival in New London the past August.21
Almost immediately tensions began to rise. When it became clear that Haley and Janes intended to testify that Ruiz and Montes had admitted that the blacks had come from Africa recently, Holabird objected, saying that the two Spaniards had no counsel and no longer had anything to do with the matter. He, as district attorney, was appearing in behalf of the Spanish minister. Baldwin and Staples sharply asked what right the district attorney had to be at the trial. For practical purposes, Holabird replied, he was the counsel for Ruiz and Montes; the president had directed him to represent the Spanish minister by “executive courtesy.” Isham’s remarks on this matter undoubtedly confirmed the abolitionists’ concern that Gedney was closing ranks with the Van Buren administration. Isham insisted that the district attorney had come to “preserve the faith of this government inviolate”—to make sure the blacks were returned to the Spanish government if found slaves or to Africa or elsewhere if not slaves and the matter became a state question. Someone had to present the claims of Ruiz and Montes, Isham concluded; they were libelants.22
Judson moved quickly to settle the issue. He ruled that since the sole question before the court was that of property, it would accept the two Spaniards’ claims.23
That matter resolved, Haley and Janes testified against Ruiz’s claim to the Amistad blacks as property in slaves. While on the Washington, Haley declared, he had in the ship’s cabin overheard a conversation in which Janes asked Ruiz about the blacks. Ruiz said that Antonio alone could speak Spanish and that the rest of the blacks were “just from Africa.” Only one could speak a few words of English, which he probably had learned on the African coast. When a question arose about how Haley and Janes understood Spanish, Haley replied that Ruiz spoke good English. Isham interrupted to ask, “Did you not know that he was educated in Connecticut?” To blunt the impact of Isham’s remark, Baldwin quickly rejoined, “He ought to have known better if he was educated in Connecticut.” Janes confirmed Haley’s story. Under Baldwin’s questioning, Janes explained that he had followed Ruiz into the cabin and had asked whether any of the blacks could speak English. “A few words,” Ruiz replied. Spanish? “No, they were just from Africa.”24
Additional testimony came from James Covey and Charles Pratt, the two Africans who had talked with the Amistad captives in their own language during the autumn of 1839 and who were confident that all of them had come from Africa recently. Covey, about twenty years old and now recovered from the illness that had forced postponement of the trial, testified that he had been born in Mende in Africa and had learned English in Sierra Leone. Nearly eight years ago he had been “stolen by a black man” and taken as a slave to Lomboko, where he was placed on a slaver sailing for Havana. A British cruiser captured the slaver, however, and Covey later decided to enlist as a sailor on the Buzzard, a British man-of- war. He had been in New Haven for four months, where he stayed with “Mr. Bishop.” The man had asked for no money. Although Covey did not know who was paying his board, it is likely that Tappan had made the arrangements. In exchange for the British naval captain’s agreeing to let Covey testify, Tappan had promised his safety until his return. After Covey talked with Cinqué and other captives in New Haven, he concluded that all were from Africa and that all but three of them were Mende. Two or three spoke different languages, but all had Mende names, all talked of rivers familiar to Covey, and all agreed on where they had sailed from when leaving Africa. Pratt’s account confirmed Covey’s. Pratt was an African, twenty-five years of age, born in Sierra Leone. He was the captain’s cook on the Buzzard. He had learned the Mende language while there with his father doing trade. Like Covey, Pratt was convinced that the captives had come from Africa recently.25
During the morning of January 8, Professor Josiah W. Gibbs of Yale College appeared for the defense, giving a long, intricate explanation of the importance of language that probably suggested to the audience that any excitement in the trial would come later. Repeatedly referring to a large pile of notes he clutched in his hands, Gibbs elaborately explained why the terms ladinos and bozales were crucial to the case. But before he could describe his procedure in inquiring into the language of the captives, Gedney’s counsel raised a question, and perhaps because of what Tappan later termed the pressure of “public sentiment,” Judson stunned the courtroom by declaring that he “was fully convinced that the men were recently from Africa, and it was idle to deny it.”26
In one sentence, Judson took the position Holabird had suggested in circuit court the preceding September and ruled in favor of the most important argument made by the abolitionists: the blacks were not slaves and therefore were not property. This ruling dissolved the claims of Ruiz and Montes and denied the United States government its stated obligation to return the blacks to the Spanish minister as property under Pinckney’s Treaty. Several questions immediately arose. Could the president comply with the Spanish government’s demand for the surrender of the blacks as assassins? If the captives had been kidnapped, did they have the right to gain liberty by any means possible? Could they be held accountable in Cuban courts for seeking to escape an attempt to reduce them to slavery? Had not Judson suddenly taken the abolitionists’ side in the Amistad question? If the blacks had the right to liberty, the, only decision Judson could make was to order their return to Africa—their homeland. Would the implication be that color was not incompatible with freedom?
While these questions perhaps crossed the minds of perceptive observers, Gibbs resumed his testimony, which by this time seemed anticlimactic. He explained what he knew about the African language, and how he had learned Mende from Covey. After collecting a vocabulary, Gibbs conversed with twenty or thirty of the captives. In reality he had earlier presented an irrefutable argument in the press for the captives’ origins in Africa, when he showed how each of the black’s names denoted an object, place, or thing in the Mende language. The Spaniards could not have given them their names; they did not know the Mende language and could not even pronounce the words. Moreover, Gibbs explained, if the Spaniards had taken African names “at haphazard and given them to Africans indiscriminately, it would, in the multiplicity of African dialects, have been a miracle for the Mende names to fall so exactly on Mende people.” Besides, had the Spaniards taken the names from the Mende and then passed them back, they would have “corrupted” the words in both “form and sound.” The blacks, Gibbs concluded in court, could not speak Spanish, but spoke several African dialects. They were “native Africans & recently from Africa.”27
After this lull in excitement, the moment most of the crowd had waited for came when Cinqué was at last called to the stand. A wave of anticipation swept the room as the leader of the mutiny rose from his seat, wrapped in a blanket but showing that he was taller than his companions, distinguished and erect in bearing, almost suggesting the pride of majesty. Covey accompanied him to the stand as interpreter. Before the court, Cinqué attested that he believed in God and understood that if he broke the oath to tell the truth he would be punished.28
As Cinqué delivered his testimony, the large audience listened with what one observer described as “breathless attention.” Cinqué explained that he had been at work on a road in Mende when captured by four men. He had not been taken for a debt and had never sold anyone as a slave. Leaving behind three children and a wife, he was taken to Lomboko, where he was sold and put on board a vessel that took him to Havana. During the voyage from Africa he was chained, hands and feet together, and “packed” on board the slaver. To illustrate, Cinqué sat on the floor of the courtroom and held his hands and feet together to show how he had been manacled. All of the Amistad captives arrived in Havana on the same ship except the four children, who were already in the city but likewise were recent imports from Africa. The three girls, Cinqué noted, were Mende. He first saw Pepe (a nickname for José, Ruiz’s first name) in Havana at the “prison house.” Accompanied by the man who brought the blacks from Africa, Pepe felt them to see whether they were healthy. Cinqué’s testimony had an added impact when he demonstrated how Ruiz had conducted the inspection.29
Cinqué emphasized that on the Amistad he and the other blacks had had inadequate provisions and been subjected to cruel treatment ordered by Ruiz. The captives were chained on the vessel and allotted only one plantain, two potatoes, and half a cup of water per day. During the coastal voyage, the sailors whipped four men, including Burnah, under Pepe’s orders and in his presence. Even the captain participated. No, Cinqué replied to an inquiry; Montes (who owned only the four children) did not engage in the whipping. No one struck Cinqué except the cook, who slapped him with a plantain. Was it in play, counsel asked. “Oh no, no,” Cinqué emphatically replied.30
Cinqué recounted their arrival in New York. He was onshore with a large number of blacks when seized by Gedney; he named ten of them but could not recall the others. Yes, he told Green that he could have the Amistad if he took them to Sierra Leone. Was there gold on the schooner? Cinqué explained that after the mutiny, he had found a box below, which he broke up for firewood. The box contained some money, which he and the other blacks wrapped and tied around their bodies and later used partly in paying for supplies. The rest they gave to the white men in the boat. Clothes were in the trunks taken ashore. In a statement that contradicted his earlier story, Cinqué declared that the trunks had contained no money.31
That afternoon, two other blacks, Grabeau and Fuliwa, confirmed Cinqué’s testimony. During cross-examination, Grabeau said that he had been seized in the road and taken to Lomboko, where he first met Cinqué. He did not know the name of the ship on which they departed for Havana. No doubloons were in the trunk, Grabeau attested. He was seeking water ashore with Cinqué when Gedney seized the Amistad. Grabeau claimed that Green had agreed to take them to Sierra Leone. Fuliwa said that he had also been onshore when Gedney arrived. Yes, Pepe ordered a sailor to whip him and others for stealing water. The cook said that they would be eaten after their heads had been cut off. The blacks killed the cook first, while he was lying in a boat. They had not wanted to kill the captain, but when he killed one of them they turned on him.32
The defense recognized that the prosecution intended to discredit the testimonies of Cinqué and the other blacks and prepared for the attack. Marshal Willcox was among the first to disagree with the blacks’ testimony. In relating what Covey had told him about the blacks, Willcox declared that Cinqué had admitted to owing a man two pounds (holding up his two fingers) and to meeting his debt by selling the man two blacks. But one of them ran away, and apparently Cinqué was unable to pay the debt and was seized and sold to pay it. To counter the marshal’s story, the defense called George E. Day, a teacher at Yale College who had helped instruct the blacks. He claimed that he was in the room at the time referred to by Willcox and that there was much confusion. One of the men present had tried to leave the impression that Cinqué had been a slaveholder, but Day never understood Cinqué to say that he had ever sold a man as a slave. Covey assured Day three weeks afterward that Cinqué never told him such a story.33
On the morning of the third day of the trial, the district attorney asked for a postponement because of the sickness of one of the witnesses—the Spanish consul Antonio G. Vega of Boston. Holabird declared that Vega could invalidate Madden’s testimony by proving that the slave traffic was legal in Cuba. Vega had also filed a libel for the return to Cuba of Antonio, the slave belonging to the captain and owner of the Amistad, Ramón Ferrer. Antonio was a subject of Spain, Holabird asserted, and wanted to return to Cuba as a slave belonging to the captain’s representatives. Vega also demanded immediate restoration of the Amistad, its cargo, and the slaves under Pinckney’s Treaty. The United States government, Holabird explained, would comply with the court if it ruled the treaty applicable to the case.34
Baldwin did not want another postponement; he doubtless believed that the case was going the way of the defense and that a delay would hurt matters. He proposed calling the marshal to the stand to prove that, in New London, Vega had said that the slaves were from Africa and could not be held legally in Cuba. This would make Vega’s testimony immaterial and a postponement unnecessary. Baldwin remarked that the district attorney had been aware of Vega’s illness the day before and had not then objected to continuing the trial—probably because he had the purpose of “fishing out” the other side’s evidence. Judson sharply rebuked Baldwin for his implication. Baldwin, the judge declared, used “very improper language” in imputing “a course to the Attorney of which he has not been guilty.” Besides, Judson noted, had the motion come the day before, he would have refused á postponement until all testimony was in. Baldwin withdrew the words after claiming that he had not used them in the way the court understood them.35
Baldwin tried to show that Cinqué had not been a slave trader. When Covey entered the jail, Baldwin explained, there was great excitement and confusion as the blacks realized that a fellow Mende had arrived. The noise had probably caused the marshal to claim mistakenly that what Covey had told him then was different from what was repeated in court. Gibbs testified that Covey had said nothing about Cinqué’s having traded in slaves. Willcox thought he was sure that what he had testified before came from Cinqué, not from Grabeau, although he admitted that there was confusion in the room. Colonel Stanton Pendleton, the jailer, said that when Cinqué was asked how he was taken, he replied that he had owed a debt and paid it with two Africans and promises of clothes. But one of the Africans escaped, and since Cinqué could not pay for him, he was taken in lieu of the debt.36
To add another side to the story, Antonio underwent a long examination with a Brazilian as interpreter. Cinqué and the others boarded the Amistad at night, Antonio testified, six days after its arrival in Havana. There was plenty of food and drink on the vessel. No African was killed—contrary to what the Africans said about the captain’s killing one of them in the scuffle. Cinqué, Antonio declared, killed the captain by a machete blow to the forehead; the cook had already been dead about a quarter of an hour. The mutineers threw the captain overboard, but only after Cinqué took his watch. Antonio could not understand why the cook told them that they would be eaten. Cinqué, Burnah, and Grabeau took command after the revolt. When Cinqué threatened the lives of Ruiz, Montes, and Antonio himself, Burnah stopped him, only to have Cinqué angrily turn his knife on him. Antonio explained that Cinqué had tied him to the anchor but that Burnah had turned him loose. Cinqué also whipped Burnah for stealing water. According to Antonio, Burnah talked a lot with Montes, and since Cinqué knew Burnah wanted to return to Havana, he was afraid that Burnah and Montes would do so. When some of the blacks threatened to kill Montes, Burnah declared, “No, no; kill man no good.”37
In the cross-examination of Antonio, it became apparent that his testimony actually hurt the prosecution’s case because he contradieted his previous stories. During the inquiry immediately following the Amistad’s arrival in New London, Antonio had told Judson that Cinqué had led the way in killing the captain. During a private examination in New Haven, he had declared that Cinqué “did not kill anybody.” Then, before the circuit court in Hartford, Antonio claimed that he did not know who killed the captain. Also in Hartford, he had said that the blacks boarded the Amistad at 4:00 P.M. Now, in district court, he reversed everything.38 Antonio clearly intended to say what seemed advantageous to him at the moment; with the American and Spanish governments apparently aligned, he provided testimony they most wanted to hear. His efforts, however, had promoted the case for the defense.
On January 10, the fourth day of the trial, Holabird attempted to discredit Madden’s testimony by reading Vega’s statement. The Spanish consul had lived in Cuba for several years and was well acquainted with its laws on slavery. He claimed “there was no law, that was considered in force in the island of Cuba, that prohibited the bringing in [of] African slaves.” The mixed commission had no jurisdiction except in captures at sea, meaning that “newly imported African negroes were constantly brought to the Island.” After their arrival, they were “bona fide transferred from one owner to another without any interference by the local authorities or the mixed commission.” Spanish law condoned slavery, making these blacks “lawful property.” Contrary to Madden’s testimony, the slaves maintained their native language on the plantations for years. All kinds of slaves were sold at the barracoons, which were public markets. The Amistad's papers were “genuine, and . . . in the usual form.” Indeed, Vega declared, it was not necessary to engage in fraud to secure such papers from government officials. None of the papers carried the signature of Martínez and Company, as Madden claimed. Martínez did not even hold the office where one of them originated.39
The irony is that Vega’s statement actually confirmed Madden’s testimony: though laws against the slave trade were on the books, officials in Madrid and in Havana did not attempt to enforce them. First, the Spanish law of 1817, reinforced by royal decree of 1838, prohibited the African slave trade and declared that illegally imported slaves became automatically free upon reaching any Spanish dominion. The problem was that, as both Vega and Madden recognized, hardly anyone on the island considered this law in force. Second, Madden had emphasized what was apparent to all observers: the major flaw in the mixed commission was that its jurisdiction ceased once slavers made it to Cuban shores. There were no Spanish laws prohibiting slavery in Cuba, which meant that blacks who had been slaves before 1820 (along with their descendants) remained slaves. Such a system guaranteed trouble— if the island’s authorities enforced the laws and freed illegally imported slaves. Not surprisingly, the captain general and other officials recognized the potential disaster in creating a large class of free blacks living alongside black slaves, and they refused to enforce the laws. Vega was correct that papers on the Amistad were “genuine” and “in the usual form”; but this was not to say that the papers were legal, and it by no means excused the system operating in Cuba. For government officials to ignore the wrong did not remove its existence. In reality, Vega affirmed Madden’s observations and pronounced judgment on these same officials when he emphasized that it was not necessary to engage in fraud to procure such papers. Madden testified to the illegalities that permeated the entire system. Vega, in refusing to admit to illegalities, confirmed them.
The case was moving toward a conclusion as the attorneys reiterated their arguments, trying to bring the major points into focus. While the Grampus lay ominously in New London harbor, the court proceedings continued into the evening and consumed nearly all of the following Saturday. For the most part, one could predict what each attorney would say before he spoke. At one point, however, Isham expressed pent-up anger that Gedney and his associates had been accused of wanting salvage for “human flesh,” and added that they had been subjected to unjustified “insinuations and taunts.” In a statement that contradicted the claim he had filed in circuit court during September 1839, he declared that if observers would read the claims for salvage, they would find that his clients sought salvage only for the Amistad and its cargo. Indeed, he was now sorry that Gedney had come across the schooner; “overwhelming sympathy” for the blacks had caused the “sufferings” of Ruiz and Montes to be “altogether lost sight of.” His clients had no desire to see the blacks in bondage. In a statement that raises questions about how Isham could differentiate between the ship’s “cargo” and the blacks on board, he declared that they were property according to Spanish laws and customs and that the United States government should surrender them to the Spanish minister.40 If the blacks were property, Gedney’s claim to salvage, or so it would seem, would include all merchandise on board the Amistad. The institution of slavery had certainly led contemporaries to adopt convoluted legal and moral positions.
Afterward Judson adjourned the session, noting that he hoped to have a decision on Monday.41
Monday morning, January 13, before the packed courtroom, Judson opened the proceedings by first denying the defense counsel’s attempt to secure a plea in abatement: the district court had jurisdiction because Gedney’s seizure of the Amistad had taken place on the high seas. According to the New York Commercial Advertiser, Judson decreed that the vessel had been found where the tide “ebbs and flows,” less than half a mile off Culloden Point. The law stated that if a claimant seized a ship on the high seas, adjudication could take place in any district court but must come to trial where he first brought it in. The court accepted the definition of “high seas” found in Daniel Webster’s argument of 1818 before the Supreme Court in U.S. v. Bevans: the “open ocean, where the dominion of the winds and the waves prevails without check or control.” Ports and harbors were “places of refuge” protected from the open ocean by “inclosures and projections of the land.” The seizure did not occur in any harbor, port, bay, or river. “There is scarcely an indentation on the coast between Montauk and Culloden Point,” observed the New York newspaper. The distance from shore was not crucial. Despite the assertion that the blacks were ashore at the time of seizure and could not be subject to admiralty court jurisdiction, the judge ruled that since their “specific” and “temporary object” had been to seek water and provisions, they were still “attached” to the Amistad. The court had jurisdiction.42
Now turning to the salvage question, Judson dismissed the claims presented by Green and his companions. Their argument, he explained, had rested on the erroneous assertion that they had taken possession of the Amistad. The claimants had indeed traded with some blacks found ashore and had agreed to “take the vessel to their place.” But this was Greeďs understanding, Judson emphasized, not that of the blacks; they wanted to go to Sierra Leone. The white men’s “actions” showed that they realized the blacks wanted only to go to Sierra Leone. Green and his friends were never on the Amistad, and they had not rendered a “meritorious service.” There was no basis for salvage.43
Judson, however, decided in favor of Gedney and associates as well as of the two Spanish owners of the cargo on the Amistad. On the bases of “meritorious” and “highly praiseworthy” services, he awarded salvage to Gedney on vessel and cargo, the latter referring only to the inanimate objects aboard. The Amistad was “at the mercy of the winds and waves,” and it was in the hands of blacks who knew nothing of navigation and were on the point of leaving for Africa without hope of getting there safely. For saving the goods from total loss, Gedney and his associates would receive a “reasonable rate” of one-third the appraised value of vessel and cargo. Judson upheld the cargo claims presented by the two Spaniards at the same rate. The Amistad and its goods were to be restored to the Spanish government, subject to lien for salvage and costs.44
Judson proceeded with his ruling on the blacks. They “were born free,” he asserted, “and ever since have been and still of right are free and not slaves.” Judson’s gaunt and drawn face betrayed inner tension as he handed down a verdict foreshadowed by his statement before the court on January 8—a verdict the White House could not have liked and probably did not expect. The captives had “never domiciled” in Cuba or in Spanish territory, but were “severally kidnapped” in violation of “their own rights and of the laws of Spain.” In Cuba they were “unlawfully sold as slaves.” They had revolted out of “desire of winning their liberty and of returning to their families and kindred.” At the time of their importation into Cuba, Judson noted with increasing certitude and calm, a Spanish law of December 1817 prohibited such practice. On the question of murder and piracy, he ruled that the homicide took place on a schooner that belonged to a Spaniard, sailed under a Spanish flag, and was commanded by a Spanish subject. No American court could have jurisdiction in the case. Only Spanish law could deal with it.45
Judson had dismissed the property claims by Ruiz and Montes, as well as those presented by the United States district attorney in behalf of the Spanish minister. For Ruiz and Montes to demand restoration of property, the judge continued, they had to have lawful title to that property. If property and title proved to be in Spanish subjects, Pinckney’s Treaty was applicable, and the property had to be surrendered. The burden of proof lay with the Spaniards. But what evidence had they sent? “A deed—a bill of sale—a transfer? No. It is a permit—a license—a pass”—signed by the captain general of Cuba. The blacks, Judson emphasized, were bozales, not ladinos. “Here then is the point,” he said, “the point upon which this great controversy must turn!” The laws of Spain were vital to the case and in court were “matters of fact.” The Spanish law of 1817 forbade the importation of blacks from Africa. The Amistad blacks entered Cuba in violation of this law and had to go free by that same law. Judson had no doubt about the law. It explained why the Spanish consul asserted that if the blacks were returned to Cuba, some of the leaders were subject to punishment, but that none could become slaves. The objective of returning the blacks to Cuba, Judson noted, would be to have bozales come to trial to determine whether they were slaves under Spanish law. Since Spanish law made it clear that the blacks were not bozales, Judson explained, it would serve no purpose to send them back to Cuba: “If by their own laws, they cannot enslave them, then it follows of necessity, they cannot be demanded.” Finally, on the charge of murder, Judson likewise refused to return the captives to Cuba, because they had revolted against illegal bondage only out of “desire of winning their liberty and returning to their families and kindred.”46
How could one explain the apparent failure of Ruiz and Montes to realize that the blacks were bozales? Judson declared that the captain general’s pass contained, “on its face, an untruth,” because it did not “truly describe” the blacks who were shipped. Thus the alleged seller had no title. Judson explained that in Cuba it was the custom—a “practice against law”—to buy such blacks and ship them as ladinos or creoles. But one had to assume that subjects of a foreign government knew their own nation’s laws; they could not come to the United States asking it to violate the rights of others, “in justification of the breach of their own laws.” Poor execution of a law, either in Spain or the United States, Judson asserted, “is no evidence that the law does not exist.” Ruiz’s only remedy was to find the man who took the $20,000 from him. Had he and Montes been more vigilant, Judson remarked with pent-up irritation, “this Court might have been relieved from this heavy responsibility, which has been pressing it down for these four months.”47
In response to the question everyone wanted to ask, Judson ruled that, in accord with the congressional law of March 1819, he would place the captives under charge of the president of the United States, who would arrange their passage home to Africa. Judson explained his decision. The law declared that “it shall not be lawful to import or bring, IN ANY MANNER WHATEVER [Judson’s emphases], into the U. States or territories thereof, any negro, mulatto or person of color, with intent to hold any such negro as a slave, or to hold to service or labor any such person.” If such importation occurred, the same law authorized the president to remove from the United States to Africa “all such negroes, mulattoes, or persons of color, as may be delivered and brought within their jurisdiction.” The court, Judson indicated, had to determine whether in leaving Cuba the blacks had been brought into the United States with the intent to “hold to service” or “to hold as slaves." It seemed clear that Ruiz and Montes had put the blacks onto the Amistad to hold as slaves and to service and that their plans had continued to the time of the mutiny. Perhaps these intentions were “suspended” when they lost control over the blacks, Judson allowed, but evidence showed that as soon as Gedney appeared, the Spaniards resumed their original aims. The act of 1819, Judson pointed out, made it unlawful “to import or bring in any manner whatsoever, into the U.S. from any foreign country any negro, with intent to hold him as a slave.” The “broad language” of the act made it illegal to bring in a negro with the purpose to “hold to service, any where, and in any place.” The blacks were returnable by the president under the law.48
Judson had stretched the law of 1819 nearly beyond recognition. Ruiz and Montes never intended to import the blacks into the United States, which made it irrelevant to discuss whether their purpose was enslavement or service. Furthermore, when the Amistad arrived in New York, it was under command of the blacks; their objective, of course, was to escape any efforts to hold them as slaves or for service. Judson’s other comments about the intended humanity of the law of 1819 only partly explained his purpose: as he would repeatedly emphasize afterward, he was concerned about satisfying the blacks’ wishes to return home. This may have been so. But Judson was also concerned about placating the White House. He had not decreed the blacks’ return to Cuba, as the administration wanted, but he might console the president, and the American public, by choosing the second option suggested by Holabird in circuit court—that of authorizing Van Buren to send them to Africa. Indeed, the move might enhance the president’s image— and on the eve of a presidential campaign. Perhaps for these reasons, Judson thought his strained interpretation of the law of 1819 would either go unnoticed or at least not meet serious objection.49
Practical considerations also affected Judson’s ruling. Had he accepted the prosecution’s argument that the blacks were slaves, he would have faced, he realized, the problem that neither federal nor Connecticut state laws authorized their sale or granting of title. Furthermore, as he had pointed out before the start of circuit court proceedings in September 1839, Connecticut law said nothing about determining the values of slaves, which meant that there was no basis for allowing an appraisal and appointing appraisers, or for making an estimate. Nor could Judson accept an appraisal made elsewhere. A court decree, he reminded listeners, assumed having the power to enforce it.50
Judson’s decision astounded the defense attorneys, for he had accepted their argument that the Amistad blacks were free—albeit with the stipulation that they were to return to Africa under presidential supervision. The rumor was that the abolitionists had been so certain about a verdict surrendering the captives to Spain that they had arranged for a vessel belonging to the underground railroad to be in New Haven harbor to spirit the blacks away after the court ruling. Years afterward the New Haven Journal & Courier asserted that members of the Amistad Committee had either made those escape arrangements or had worked with Nathaniel Jocelyn, brother of the committee member Simeon Jocelyn.51 Such dramatic steps proved unnecessary in light of the court decision.
There was another part of the decision, scarcely noticed at the time. Judson ruled for the delivery of Antonio to his owners in Cuba, which, as the New York Commercial Advertiser observed, was an illustration of his reasoning not to return the others on the vessel. In the circuit court case of La Jeune Eugénie, Judson showed, Justice Joseph Story in 1822 authorized a surrender of slaves because the French claimants established their legal right of ownership to property. And by the Antelope decision of 1825, he added, Chief Justice John Marshall of the Supreme Court declared that the slave trade was in harmony with international law and that the claimant in the case only had to prove title to his property. At the time of Captain Ferrer’s death, Antonio was his legal slave—a creole. Judson therefore decreed that he was returnable as property under Pinckney’s Treaty.52 The Van Buren administration had won a major victory in establishing that foreign slaves could expect no asylum in the United States. Yet this part of Judson’s decision attracted little attention amid the excitement over the other issues.
To conclude that the abolitionists had won the case would be misleading. They had hoped for a decision setting the blacks unequivocably free; the announcement of freedom had stipulated the blacks’ return to Africa. That the blacks preferred to go home was not the point; to demonstrate the indivisibility of freedom, the abolitionists wanted that decision to belong exclusively to the blacks.53 In no way had the judge conceded that blacks were persons enjoying the same rights as white people. Furthermore, the decision to authorize the president to send the blacks to Africa under the law of 1819 left the erroneous impression that they had been imported into the United States for either “service or labor.” The captives were in command of both the vessel and the Spaniards when they arrived off Long Island; there was no justification for implying that they were slaves illegally brought into the United States. The abolitionists also feared that the blacks might not reach Africa—they did not trust Van Buren—and even if they did, the threat still existed that another slave trader would take advantage of their plight to kidnap them again. In addition, Judson’s decision had not disturbed the institution of slavery. Its principles were intact. Judson had made no suggestion that slaves possessed rights as persons; rather, he conceded that Antonio was property, returnable to owners under the treaty of 1795. Finally, the judge’s decision had no bearing on the question of citizenship for free blacks: he had not defined their freedom as indivisible.
For abolitionists the outcome in New Haven was nonetheless a small step forward in a long struggle that would consume much more time and many more court cases. Though the Boston Liberator expressed great pleasure over the captives’ imminent freedom, few abolitionists agreed with the New York Commercial Advertiser that the decision was “lucid, able and most righteous,” and that it did “honor” to Judson by comprising “a judgment of mercy to the unfortunate and the oppressed.” Nor would many of them have accepted the comment by the New York Evening Post that Judson’s opinion had demonstrated the absence of conflict between America’s laws and the “great principles of justice.” The Reverend Henry G. Ludlow of New Haven was an exception. Though an abolitionist, he praised Judson’s “masterly manner” and “enlightened head and a warm heart” and declared that the decision had “immortalized his name.” Sedgwick, however, wrote Baldwin with great satisfaction that the district judge was a “singed cat” and believed that they “should make no attempt to disturb” the decision. Staples agreed and thought that they should oppose an appeal.54
Sedgwick assumed that Tappan was fully satisfied with the court decision, but this was not accurate. Tappan admitted that he was willing to drop the Amistad matter; the blacks had suffered enough and deserved to go home. He realized that Judson had twisted the congressional act of 1819 in justifying his decision, but he also recognized that the judge had been in an awkward position and had to find an escape that offered some satisfaction to all parties. In attempting to “steer between” slavery and freedom, Tappan noted, Judson had succeeded. Tappan was not prepared to push an appeal—as long as the other parties were also willing to drop the case. But, he warned, if the prosecution filed an appeal, he and the other abolitionists would rejoin the battle even if it ultimately went before the United States Supreme Court.55
Amid their immediate elation over Judson’s decision, the abolitionists suddenly learned that their battle over the Amistad was not over: the United States district attorney had filed an appeal. The Grampus had departed New London, its Cuban mission aborted, but orders were under way to Holabird from President Van Buren, with the full approbation of the Spanish minister, to move an appeal to the next circuit court meeting in April 1840 on two counts: that part of the district court decision relating to the blacks, and that relating to the granting of salvage on vessel and cargo. And this was not all. The Spanish owners of the cargo on the schooner appealed Judson’s award of salvage on their goods.56 These moves virtually guaranteed an appeal to the Supreme Court, for Judge Smith Thompson, the one who had denied the writ of habeas corpus in the original trial in Hartford, was the circuit court judge who would sit with the district judge, Judson again, in considering the appeals. The overwhelming probability was that they would approve the district court decision and thus bring on an appeal to the Supreme Court under Chief Justice Roger B. Taney. Five members of the Court, including the chief justice himself, were Southerners who had at one time or another owned slaves. Prospects for a favorable outcome seemed worse now than in the dark days following Thompson’s initial ruling of September 1839.