John Quincy Adams agonized many hours while preparing his defense of the Amistad blacks before the Supreme Court. He recognized his limitations—age, long absence from the courtroom, numerous responsibilities as a House representative—and yet he and his family had always upheld fundamental principles of liberty, even when popular opinion argued otherwise. His father had taken up the cause of the British soldiers who fired the first shots of the “Boston Massacre” during the Revolution and had succeeded in securing reduced charges in the emotion-laden atmosphere of Massachusetts. How could he, John Quincy, refuse an opportunity to go before the highest court in the land and proclaim the principles of justice contained in the Declaration of Independence?
Adams may well have sensed that his appearance before the Court had taken on an aura of inevitability. If so, this did not ease the pressures. Former president of the United States, one-time secretary of state, minister to Russia, outspoken critic of slavery though not an abolitionist, caustic assessor of others—Adams knew that many Americans were waiting for him to stumble and perhaps to fall. He also knew that he ran risks in leading what amounted to an attack on the Van Buren administration. What was important, however, was the principles underlying the case and the lives of the captives themselves. “Oh,” Adams wrote in his memoirs, “how shall I do justice to this case and to these men?”1
President Van Buren had lost his run for reelection. At least one historian believes that the Amistad case may have a factor, and another considers it likely that Van Buren’s proslavery policies cost him six Northern states that he had captured in 1836.2 The electoral margin was large—the Whig William Henry Harrison took 234 votes to Van Buren’s 60—but the popular vote in several states was so close that, according to the Washington Globe, a change of only about 8,000 votes would have awarded Van Buren 90 more electoral votes and hence the election.3 Van Buren had upheld slavery on the grounds of states’ rights, attempting to prevent a split in the Democratic coalition; ironically, he had succeeded in placating the South while perhaps driving away the North. Moreover, the abolitionists and others who voted for the Liberty party candidate, James G. Birney, may have tipped the balance in New York and denied Van Buren his home state. In any event, the outcome of the election was attributable primarily to factors other than slavery—to the financial and economic conditions brought by the panic of 1837 and the ensuing depression.4
Even though Van Buren no longer had reelection in mind, his administration’s position in regard to the Amistad remained constant, giving rise to questions about the legitimacy of the abolitionists’ charge of political expediency. It nevertheless seems safe to assume that the guiding principle had always been politics. Perhaps now, formerly secondary considerations had taken priority and persuaded the White House to stay on the same course. The Democrats had been defeated, but they were still committed to a policy on the Amistad affair that received support from Americans who were concerned about competing British interests in Cuba and from Southerners who were worried that such examples would stimulate slave unrest. Moreover, the president may have been determined to complete a task his administration had started. For both foreign and domestic reasons, the White House maintained its stand.
The abolitionists and Adams had reason for optimism. Lewis Tappan happily wrote Baldwin on Christmas Eve that the approaching trial was “exciting great interest” in Washington. The New York Commercial Advertiser probably expressed the views of many Americans when it called the possible surrender of the blacks to Cuba an “outrageous violation” of “justice and human rights.” And in that same city, a play entitled The Black Schooner or the Private Slaver “Amistad” ran several evenings before packed houses at four theaters and took in over $5,000. More than growing public interest and concern underlay Adams’s optimism, for he had learned of new evidence that might strengthen his case. George Wilson of New London informed him on Christmas Day that John Jay Hyde, editor of the New London Gazette and a “gentleman of respectability and veracity,” had won the trust of Ruiz and Montes while they were in that city in 1839, and that Hyde was now willing to attest that the Spaniards had told him the blacks had not been out of Africa six weeks when put on the Amistad. He had been summoned to district court but did not attend. He would appear before the Supreme Court if his expenses were paid. Four days later Wilson again wrote Adams that Hyde had explained his absence at the district court by saying that “his fees were not legally rendered” and that he did not want his testimony to lead to perjury charges against these men. Wilson suggested that the district court proceedings must have been illegal, for authorities had not compelled such an important witness to appear.5
Adams felt enormous pressure in preparing his argument. Baldwin had sent his brief as promised; but it contained little that was new to Adams, for in his correspondence with Loring at the outset of the case, Adams himself had recommended many of the legal principles later used by Baldwin in Hartford and New Haven.6 Baldwin’s brief was long and entangled but provided Adams with material for his central argument in behalf of natural rights and principles of natural law proclaimed in the Declaration of Independence. Adams returned to the point he considered crucial to the case: Gedney, had no right to seize the Amistad. Regardless of whether the blacks were in New York territory or aboard ship on the high seas, Gedney lacked authority. As Baldwin emphasized in his brief, Gedney had no warrant and the blacks committed no crime making them liable in American courts. Yet Adams feared that he would not be permitted to raise this question or that for some reason it would be “suppressed.” As the days swiftly passed, Adams tried to find time to study the case, but his duties in the House of Representatives consumed precious time, leaving him deeply concerned about being “utterly unprepared.” As late as January 20 he complained that he could not devote “five minutes” to preparation. Ten days later he wrote in his memoirs that his left eye was inflamed and that he might not be able to present the argument. The mounting pressure, he declared, only aggravated the disability.7
Adams worried most about the blacks. Two of the captives, Kale and Kinna, had written him in English, confirming that they were from Mende and did not speak Spanish. They also claimed to be unhappy, although often laughing and saying they had plenty to eat. Kale explained the apparent contradiction. Their jailer, Colonel Stanton Pendleton, had warned that whites were afraid of them when they appeared angry. So, Kale said, they laughed. He and Kinna assured Adams that they had killed the captain because he killed one of them; they had killed the cook because he said that they would eat the Mende people. Kale and Kinna wanted Adams to tell the “Great Court” their story. Cinqué, who had also learned to write in English, had likewise told of bad treatment in the Westville jail. To Baldwin, his “Dear friend,” Cinqué complained that Pendleton had put chains on their hands and whipped them. Pendleton said that Tappan and others had lied to the Mende people and that they would never return home. He claimed that “all good things” in their possession had come from him—meat, clothes, everything. Pendleton, Cinqué observed, was a “bad man” who did not think of God and whose soul would be “lost . . . to hell.” Speaking for the other captives, he asked Baldwin to tell Pendleton not to beat them again. Cinqué felt “sorry for him [Pendleton]” because he did “not think of God.” “We forgive him,” he said, “and he curse us and he whip us.”8 Adams’s personal notes on the case made it evident that a major thrust of his argument would be an indictment of Forsyth. In the secretary’s “extreme zeal” to comply with the Spanish government’s wishes, he “mistook the nature of the demand” and informed the district attorney in Connecticut that the Spanish minister had called for the return of the Amistad, its cargo, and the blacks as Spanish property under Pinckney’s Treaty of 1795. But, Adams believed, the minister’s demand was for persons as assassins and not for property in slaves. Indeed, the minister had come into conflict with Ruiz and Montes by demanding that the blacks remain in the United States as prisoners until they could return to Havana to stand trial and “glut the vengeance of Cuba’s slave traders—not as Slaves but as Assassins.” In a statement corroborated by the documents, Adams asserted that the minister demanded them as Spanish subjects, accused of capital crimes and triable only in courts of their own country. He insisted that American courts could not consider a salvage claim on the blacks as property. Upon Forsyth’s “misstatement” of this demand, Adams insisted, the American government issued the warrant for the seizure of the blacks. Adams was willing to attribute the secretary’s mistake to “inadvertence.” But this did not change the fact that the district attorney filed a libel and claim based on these instructions and thus practiced a “deception” on the court.9
Adams also prepared to charge the president with interfering in the judicial process and in practicing deceptions. The district attorney had followed Van Buren’s instructions, no doubt unaware of the Spanish minister’s real demand. Holabird’s libel and Claim, Adams declared with indignation, had placed an issue before the court that focused on freedom or slavery for a large number of black people without even having their names on the document. The court heard the claim as presented by the United States at the demand of the Spanish minister, when in reality it was “against his protest.” Argaiz “bitterly complained” that the “public vengeance of the African Slave traders in Cuba had not been satisfied." That could come only by the “blood” of the blacks, Adams declared, “not as Slaves but as assassins.” If the minister’s demand had been clear, the district court could not have considered returning the blacks as assassins. “[I]f the Secretary of State knew what he was about,” Adams asserted, “what motive could he possibly have for this imposition upon the Court, but to get the men into possession of the Executive to keep them in custody inexorable and convey them to the place of execution in Cuba!”10
Adams wrote in his notes that the Van Buren administration had through “many most obsequious and exceptionable acts, manifested its own disposition and eagerness to comply” with the Spanish demand. One indication was the secretary of state’s “constant and studious avoidance” of denying the Spanish demands as “utterly inadmissible, inconsistent and absurd.” A second was the attempt to mislead the district court by directing the district attorney to present the Spanish minister’s demand as one for the return of slaves under the treaty. And while the secretary was doing this, he was also relying on the attorney general’s opinion that the president should order the marshal to turn over the blacks to whomever the Spanish minister designated. A third factor was the secretary of state’s directive to the district attorney “to take care." Adams angrily remarked, “What a flap at the Courts!” Fourth, the secretary had made secret verbal contacts with Argaiz, which were “obscurely but very intelligibly referred to by the latter in his written correspondence.” A fifth sign was the steps taken to seize the blacks and carry them to Cuba. All of these considerations, Adams lamented, demonstrated that the only concern of the Van Buren administration was to satisfy the Spanish.11
Adams was ready to accuse the White House of bias against the blacks. From the time Gedney seized the Amistad, Adams believed, every executive action rested on the “assumption” that the captives were “slaves” and “murderers” who had to be delivered to the Spanish minister for their masters. Yet Argaiz never sought the blacks’ delivery as property; he wanted the United States to keep them in custody until their return to Cuba as assassins. The secretary of state “fabricated” the minister’s demand as one for slaves and kept the real demand for murderers from the district attorney for one reason: to prevent the truth from going before the court and showing that despite the administration’s claim that it was abiding by the treaty of 1795, it was in reality prepared to condone judicial murder to quiet the case. Adams concluded that the Van Buren administration wanted the best of both worlds: “The Attorney General was for surrendering the Africans as Slaves—he was for surrendering them as Assassins.” In either case, Adams believed the executive office guilty of interference in the judicial process.12
There is no question that Adams was correct in claiming that the Spanish minister had demanded the blacks as criminals to stand trial in Cuban courts; the problem comes in proving that the Van Buren administration intentionally misread the Spanish position as a call for property. If Forsyth erred, he should have known better. Though not as experienced as Adams in diplomacy, he did not need special expertise to determine the Spanish government’s central demand. In the Spanish minister’s notes of September 6 and November 26, 1839, he had made his wishes clear. In the latter note, Argaiz complained that because the United States had not implemented the treaty of 1795, “the public vengeance has not been satisfied; for be it recollected that the Legation of Spain does not demand the delivery of slaves but of Assassins” (emphasis added).13 It seems fair to conclude that Forsyth deliberately misinterpreted the Spanish claim so that the administration could defend the move as a treaty obligation. To surrender the captives as accused assassins would be tantamount to participating in a mass judicial execution. Adams recognized how far from justice the political aims of the Van Buren administration had taken it. He hoped to prove this in court.
In mid-January the Spanish minister sent a note to Forsyth that suggested Adams was wrong in his assessment of Spain’s demands: Argaiz claimed the blacks both as property of Spanish subjects and as assassins to stand trial in Spanish courts. He based the first claim on the treaty of 1795, the second on reciprocity between nations. In his support, Argaiz enclosed two articles from the Spanish newspaper published in New York, Noticioso de Ambos Mundos. The first disagreed with a recent assessment by Judge William Jay, in which he argued that on the basis of the law of nations and not of the treaty of 1795 (as fugitives and not as merchandise), the Spanish legation in Washington had sought the blacks’ return as murderers or assassins and not as property. Jay was wrong, Argaiz insisted. He had a poor understanding of the Spanish language. When Argaiz wrote in November 1839 that his government “does not demand the delivery of slaves, but of assassins," this was not the essential demand as Jay thought. To prevent a second use of a substantive—the word esclavos (slaves)—Argaiz explained that he had not constructed the expression as it should have read: “not only demands slaves, but slaves who are assassins.” In Spanish, Argaiz declared, “it is considered as understood, even though a conjunction or disjunction be omitted, in the expression in question, ‘no pide esclavos sino asesinos,' (does not demand slaves but assassins) the word solo (only) may be understood.” Thus, Argaiz continued, the actual phrase should have been “no solo pide esclavos sino esclavos asesinos,” or “not only demands slaves but slaves who are assassins.” Spain, Argaiz asserted, consistently made its demand for the slaves as merchandise. The United States had to execute the treaty of 1795 as part of the supreme law of the land.14
Argaiz then referred to the second article in the Spanish paper, which claimed that according to the writings of Hugo Grotius, the famous Dutch theorist on international law, Spain also had the right to demand the blacks’ surrender as murderers. Indeed, a former attorney general of the United States, William Wirt, cited Grotius in arguing in another case that “the usage, then, of demanding fugitives from a foreign Government, is confined . . . to crimes which affect the Government, and such as are of extreme atrocity.” Wirt also quoted Emmerich de Vattel, the Swiss expert in international law: “If the sovereignty of the country in which crimes of this nature have been committed, demands the delivery of the persons who committed them, in order to punish them, they should be surrendered to him, as the person most interested in having them exemplarily punished.” Argaiz declared that he “not only claimed the captured slaves as the property of Spanish subjects, but also . . . for their surrender as assassins, in order that they may be tried by competent courts.” Spanish demands, he insisted, rested primarily on the treaty of 1795, but also on the law of nations and the “good understanding and reciprocity” of a “friendly nation.”15
The Spanish minister had contributed to this confusion by writing a note that left his government open to the charge of shifting its stance in accord with believed necessity. Argaiz’s argument is perhaps truthful, but on such an important point it seems careless for a seasoned European diplomat to have relied upon a State Department translator to understand the necessity of inserting the word solo (only) in the text. At the least, Argaiz was naively responsible for allowing his government’s demands to mesh with the official position of the Van Buren administration.
It is perhaps understandable that Adams, a suspicious man anyway, could, on the basis of the published correspondence he had seen, believe that Argaiz had changed his predecessor’s position in the controversy. In September 1839 Angel Calderón de la Barca initially asked for the blacks’ return as criminals “to be tried by the proper tribunal, and by the violated laws of the country of which they are subjects.” Five days later Noticioso de Ambos Mundos referred to the blacks as “mutineers & murderers.” Whether they were slaves was a matter of opinion. Spain demanded their return as criminals who had broken Spanish law and had to stand trial. The following November, Argaiz himself declared that, on the basis of the treaty of 1795, he demanded the delivery of assassins. The technicalities regarding the literary construction of the Spanish language, even if accurate, did not matter: Argaiz was still demanding the blacks’ return as assassins who were slaves. The Spanish had all along sought the blacks’ surrender as criminals, and Forsyth, to serve the administration’s purposes, had wrongly represented to the district attorney the Spanish demand. Now, in the January 1841 note to Forsyth, Argaiz combined the two demands into a single call for the slaves as assassins, appealing to both Pinckney’s Treaty and reciprocity between the nations.16
It was no coincidence that in Argaiz’s attempt to show that he was emphasizing the return of slaves as assassins, he was at the same time trying to leave the impression that no violation of Anglo-Spanish treaties against the African slave trade had occurred. Spain had grown increasingly concerned that England might intervene in Cuba as part of an effort to establish control over the Caribbean. The government in London could not justify intervention on the ground that slaves had committed murder, but if Argaiz were to demand the blacks as assassins without drawing attention to their status as slaves, he would not only have substantiated the abolitionists’ claims in court but also have implicitly admitted that Ruiz and Montes had broken treaty agreements with England and that the Spanish government had merely looked the other way. Above all, Argaiz had to establish that the Amistad captives were slaves who had committed murder in the course of the mutiny.
The informal trilateral relationship among the United States, Spain, and England over the Amistad affair and Cuba had become more evident by mid-January 1841. America’s charge in Madrid, Aaron Vail, had had a “long and desultory conversation” with the Spanish minister of foreign affairs, Don Joaquín María de Ferrer, on the subject of America’s political and commercial relations with Cuba and other Spanish possessions. Ferrer expressed concern over “supposed designs” by England to establish control over the West Indies. After abolishing slavery in its colonies, England began to put pressure on Spain to do the same. With “extreme dissatisfaction,” as Vail termed Ferrer’s feeling, Ferrer referred to the “official interposition” of the British minister in Washington, Henry S. Fox, in the Amistad case. Dispatches from the Spanish minister in Washington had claimed British interference in behalf of the blacks. Vail expressed doubt that Ferrer’s information was correct. As far as Vail could determine, instructions had gone out for such an interposition; but at the time when he left Washington, they had not been carried out.17
Vail assured Ferrer that the American government, too, was concerned about British designs on Cuba. The island, he explained, had attractions—geographical location, good soil, high population, wealth, and agriculture—that fitted England’s aim of global domination. Thus the administration in Washington had been watching any English move that might lead to intervention. To prevent such an occurrence, the United States was prepared to use military and naval forces. Ferrer seemed surprised, for he had not had time since coming to office to determine the American government’s views on the matter. Without expressing an opinion, he inquired about the strength of the American navy.18
Vail was correct in believing that the British had not officially intervened in the Amistad case; but they had moved alarmingly close to that point, and nothing would have delighted the abolitionists more. Amos Townsend, Jr., had asked Tappan about the chances for British intervention if the Supreme Court awarded the blacks to the Spanish. Perhaps it would be a good idea to warn the British agent in Havana to be “on the lookout” for the arrival of the blacks. In Washington, Fox shared the same anxieties. He visited Adams in mid-January 1841, expressing concern that the Supreme Court would return the blacks to the Spanish claimants. His government in London would not like this, he emphasized. Three days later Fox again met with Adams. Palmerston had asked Fox to use his good offices in behalf of the blacks without interfering in the judicial proceedings. Fox therefore needed Adams’s advice on what to do in the event of an unfavorable decision by the Supreme Court. Fox claimed to have had no discussion with the Van Buren administration about the matter, and Adams advised him to send a note to the secretary of state, asking the president to intervene in the blacks’ behalf if the Court opted for their return to Cuba. Perhaps Adams hoped that Van Buren could lay political considerations aside, now that he would soon be leaving office. Fox wrote the note and brought it to Adams for his perusal the following evening.19
On January 20, Fox delivered the note to the State Department, informing Forsyth that the attention of the British government had been “seriously directed” to the Amistad case. He noted that his government had signed a treaty with Spain in 1817 that prohibited the African slave trade. England thus had “special and peculiar reasons” for being interested in these “unfortunate Africans” who were “illegally and feloniously reduced to slavery by subjects of Spain.” Fox also reminded Forsyth that the United States and England had agreed to Article 10 of the Treaty of Ghent, which had established mutual efforts to halt the African slave trade. The United States now had to decide whether the blacks should “recover the freedom to which they [were] entitled” or be “reduced to slavery,” in violation of laws against Spanish participation in the traffic. The British position, Fox insisted, was that the blacks could only be “free persons.” The British government hoped that the president would secure the blacks’ lawful right to liberty.20
But the Van Buren administration, either out of pique at British connections with the abolitionists or out of genuine concern that the government in London was searching for a pretext to intervene in Cuba, made it clear to Fox that the Amistad case was not a proper subject for Anglo-American diplomacy. In February, Forsyth informed Fox that he would accept his letter as an expression of “benevolence.” The president insisted that only America’s courts could determine the outcome; he had neither the power nor the disposition to interfere with legal tribunals acting within their proper jurisdiction. Forsyth also pointed out that Spanish facts about the case did not coincide with those cited by Fox. The evidence had not established that the blacks were recent imports from Africa and hence illegal. If the courts awarded the blacks to the Spanish minister, Forsyth allowed, that would raise the issue of whether there had been violations of Spanish laws and Spanish treaties with England. Only at that point could England appeal to treaty stipulations—and then, merely with Spain. The United States, Forsyth emphasized, could not act as a tribunal between the nations.21
Strictly speaking, the Van Buren administration was correct in declaring that the Amistad affair was not a legitimate subject for Anglo-American diplomacy. But that position was undoubtedly one of convenience. Forsyth’s refusal to accept Fox’s note on an official basis illustrates the problem facing the abolitionists in trying to prove the charge of executive interference: any action the administration took was subject to an interpretation falling within the bounds of legality. Enough problems between the Atlantic nations existed already by early 1841—specifically, a crisis over the Alexander McLeod affair—and Forsyth was not interested in creating another one.22 To accept Fox’s note, Forsyth knew, would invite British involvement in Cuba, which would have been injurious to American interests.
As the time for the trial approached, the abolitionists deluded themselves into believing they could obtain a writ of habeas corpus if the administration won its case and attempted to remove the blacks to Cuba. Simeon Jocelyn from the Amistad Committee had asked about a writ. Townsend declared, “If anything can be done legally to pluck the prey from the jaws of human tigers I hope it will be done.” Tappan asserted that the committee wanted to guard against “any unconstitutional measure” adopted by the executive office or by other officials. It seemed wise to have a writ of habeas corpus ready. He instructed Townsend and another abolitionist, John F. Norton of Farmington, to make such preparations. Tap- pan was convinced that it would be easy to secure a writ and get the blacks before a judge, but the question was whether they would be remanded or sent back to jail for a further investigation of charges.23
In reality, the abolitionists had no chance of securing a writ of habeas corpus in the event of an adverse decision by the Supreme Court. Indeed, the mere proposal suggests the abolitionists’ naïveté regarding the law. Such a writ was tantamount to appealing a verdict by the highest court in the land. There was no remedy beyond the Supreme Court.
In the final moments before the trial, some of the abolitionists, nearly desperate about the probable outcome, were themselves willing to violate the law by considering a scheme to free the blacks. Townsend wrote Tappan that he had received a letter from Tappan’s friend A. F. Williams of Farmington, who argued that the blacks had to “be put into a place of safety” and that he wanted to help. Townsend wrote, however, “I am not prepared for such a movement.” The “friends of human rights” had already “suffered so much” from “illegal violence” and had “so loudly & constantly” called for the supremacy of law over necessity that such a step would encourage more violence. The resort to “necessity against legality,” Townsend warned, would put the “liberty of private responsibility” in the “place of legal decisions.” He was reluctant to enter “any such arrangement,” although he admitted that he was open to persuasion by Tappan and the committee. If they tried to free the blacks, Townsend allowed, the action would have to take place before suspicions arose and the officers holding them in custody placed a closer watch over them. Townsend hoped for a response by return mail if Tappan thought Williams’s suggestion worth consideration.24 Apparently Tappan held off, pending the outcome of the trial.
Another abolitionist concern was that someone else might try to take the blacks during the night. Townsend wrote Tappan that he had asked Cinqué not to accompany anyone after dark. They should keep the blacks together “and make all the resistance in their power & not suffer themselves to be carried off by stealth.” Cinqué said, “[I]f they come we all hulloo loud, & make plenty noise.” Townsend later warned Tappan that if the Court decided to return the blacks to the Spaniards, there would probably be an attempt to get them out before the decision became publicly known.25
In the meantime the abolitionists were coming under pressure to sidestep an administration move to return the blacks to Cuba by raising money either to send them to Africa or to buy their freedom from the Spaniards. But Tappan and the others rigidly opposed both of these moves as admissions to the captives’ status as slaves. In the Supreme Court room just before the judges arrived to open proceedings in mid-January, Francis Scott Key, author of “The Star-Spangled Banner” and now a district attorney and member of the American Colonization Society, asked Adams about the Amis- tad case and then lamented that the Antelope decision left little hope for the blacks. Key himself had argued that case of 1825 for the blacks’ freedom from bondage but had lost on the ground that international law upheld the right of nations to institute the slave trade. He now insisted that the best approach would be to raise money for the Amistad blacks’ return to Africa. Key later wrote Tappan about the possibility of purchasing the captives from the Spaniards. But Tappan would not consider the proposal. To Baldwin he explained that it was not wise to let “such men as Mr. Key” think that the abolitionists doubted a favorable outcome. Moreover, the abolitionists could not permit “such a concession to slavery.”26 They had to place their hopes in the Supreme Court.
The abolitionists had to counter what appeared to be yet another White House effort to influence the outcome. In early January the Washington Globe argued that the district court decree was wrong and that the president had to surrender the blacks to Spain. Two weeks later, “Veto” (Theodore Sedgwick) wrote a long article in the National Anti-Slavery Standard of New York that criticized the Globe for interfering in the judicial process. Though the editorial preceding the Globe article declared that it came from “one of the first intellects of the south,” Veto noted that the article appeared on the eve of the Supreme Court trial and in the “leading organ” of the government. Though not “cool and dispassionate,” as it claimed to be, Veto held that the article was an extreme defense of slavery.27
The Amistad question, Veto argued, could not turn either on sympathy for the blacks or on the alleged merits of slavery; the only issue could be whether the district court decree was in accord with the law. The main problem was that the captives were black, Veto claimed. Had they been white, they would have had no problem proving themselves free men. But their blackness made everything different: “All justice, all ordinary rules are to be set aside for fear, forsooth, lest the abolitionists should have a triumph—lest some slaveholder on the shores of the Mobile or the Mississippi should tremble for the safety of his property.” Fanatics in both the North and the South, but particularly in the latter, because they seemed to make up that region’s entire population, were pushing for a settlement of “that great question,” which “involved the destinies of the American republic.” Many Northerners could not understand how the surrender of the blacks would promote slavery, as the abolitionists declared. Yet these same Northerners realized that most of the Supreme Court justices were from the South and that “the whole Southern voice [was] raised in one united appeal to the passions, the prejudices, the fears, the interests of these magistrates as slaveholders.” Every question allegedly involved the “interests of the South.” “In the name of Heaven,” Veto lamented, “can no decision ever be made in the cause of liberty without periling Southern interests? Can no slave ever be discharged, no master ever defeated, no imprisoned free men ever liberated, without awakening the whole fury of the South?”28
Indeed, one of the South’s major spokesmen, Senator John C. Calhoun, had drawn the abolitionists’ ire for publicly insisting that the Court had to return the blacks to Cuba. Tappan had moved quickly, writing rebuttals in the press that drew praise from Joshua Leavitt. The articles, Leavitt declared, would “make Calhoun’s stuff appear exceedingly flimsy.” But Townsend complained to Tappan that Calhoun’s demands would lead to the blacks’ “slaughter” or to their being forced to “wear out their wretched existence on the plantations of Cuba.” Should the Supreme Court in “our boasted land of freedom,” Townsend wrote, “so truckle to the Spirit of Slavery as to deliver these men into the hands of slave drivers then is our liberty but a name & the Union of the States a union of thieves & robbers.”29
The abolitionists were becoming increasingly worried about the options before the Supreme Court. Judge William Jay could not believe that the Court would order the blacks’ return; it would be a “judicial massacre.” The justices would probably attempt to send them to Africa. “To liberate them would be a triumph to the abolitionists, & a sore & bitter mortification to most of the slaveholders.” To send them to Africa would be a triumph for colonizationists and “far more acceptable” to slaveholders. Many Northerners, neither abolitionists nor colonizationists, would be appalled if the Court ordered their return to Cuba for murder. And yet it appeared illegal to send them to Africa. The Court seemed inclined to surrender them but “may be induced to transport them.” Was it better to entrust them to Africans than to “Cuban Savages”? If others wanted to send them to Africa, Jay “would not acquiesce, but would, not oppose. Our lawyers should simply urge the court to grant them liberty.”30
For obvious reasons, Tappan believed that the best decision would be to declare the blacks free. He wrote Adams that some of them wanted to stay in the United States, and he warned that if they returned to Africa it was likely that most of them would not make it back to Mende. In any case, they ought to have the option “to remain here or go where they choose.” He later informed Adams that the Amistad Committee had instructed Baldwin to oppose any attempt by court or president to send the blacks to Africa. “They are entitled to their freedom here” Tappan wrote. Though this point had not yet come up, Tappan declared that the attorneys intended to pursue it in court because of its “great importance to the cause of human rights.” Some of the Africans, in particular the three girls, had expressed a desire to remain in the United States: “Just in proportion as these Africans have been enlightened has been their desire to remain here to be better instructed.” The abolitionists had to fight the idea that the American government had the right to “force them away.” The case involved the rights of the blacks, “the cause of human freedom,” and the nation’s honor.31
Tappan had again advocated the broad view of constitutional liberties. If the president won court sanction to dictate what should happen to the blacks, the executive office would have assumed a great hold over free blacks and perhaps over slavery itself. As Tap- pan earlier explained to his brother, real democracy meant “universal liberty.” “I am,” Tappan declared, “for the largest liberty for the poor man—for the oppressed.”32
As the court date neared, Tappan wrote Baldwin that many people had “strong apprehensions” about the trial and that community feeling was “deepening.” Leavitt urged Tappan to trust in God to “bring light out of darkness.” Whatever the result, Leavitt believed, God would “use it or overrule it for great & good results in favor of justice and mercy & liberty.”33 Yet the abolitionists recognized that, for their cause to succeed, more Americans had to become concerned about individual liberties. So far little evidence of such concern had appeared.