The sixth article of the treaty with Spain, of 1795, continued in full force, in this particular, by the treaty ratified in 1821, seems to have had principally in view, cases where the property of the subjects of either state, had been taken possession of within the territorial jurisdiction of the other, during war. The eighth article provides for cases where the shipping of the inhabitants of either state are forced, through stress of weather, pursuit of pirates, or enemies, or any other urgent necessity, to seek shelter in the ports of the other. There may well be some doubts entertained whether the case of the Amistad, in its actual circumstances, falls within the purview of this article.
The ninth article of the treaty provides, that all ships and merchandise, which shall be rescued out of the hands of any pirates and robbers, on the high seas, which shall be brought into some port of either state, shall be delivered to the officers of the port in order to be taken care of, and "restored entire to the proprietary, as soon as due and sufficient proof shall be made concerning the property thereof." To bring the case of the Amistad within this article, it is essential to establish: First, that the negroes, under all the circumstances, fall within the description of merchandise, in the sense of the treaty. Secondly, That there has been a rescue of them on the high seas, out of the hands of pirates and robbers. Thirdly, That Ruiz and Montez are the true proprietors of the negroes, and have established their title by competent proofs. If those negroes were, at the time, lawfully held as slaves under the laws of Spain, and recognised by those laws as property capable of being bought and sold, no reason is seen why this may not be deemed, within the intent of the treaty, to be included under the denomination of merchandise, and ought, as such, to be restored to the claimants; for upon that point the laws of Spain would seem to furnish the proper rule of interpretation. But, admitting that to be the construction of the treaty, it is clear in the opinion of the Court, that neither of the other essential facts and requisites has been established by proof and the onus probandi of both lies upon the claimants, to give rise to the casus foederis.
The negroes were never the lawful slaves of Ruiz, or Montez, or of any other Spanish subject. They are natives of Africa; and were kidnapped there, and wedre unlawfully transported to Cuba, in violation of the laws and treaties of Spain, and of the most solemn edicts and declarations of that government.
By the laws, treaties, and edicts of Spain, the African slave trade is utterly abolished; the dealing in that trade is deemed a heinous crime; and the negroes thereby introduced into the dominions of Spain, are declared to be free.
There is no pretence to say the negroes of the Amisted are "pirates" and "robbers;" as they were kidnapped Africans, who, by the laws of Spain itself were entitled to their freedom.
Although public documents of the government accompanying property found on board of the private ships of a foreign nation, are to be deemed prima facie evidence of the facts which they state, yet they are always open to be impugned for fraud; and whether that fraud be in the original obtaining of those documents, or in the subsequent fraudulent and illegal use of them, where once it is satisfactorily established, it over-throws all their sanctity, and destroys them as proof.
Fraud will vitiate any, even the most solemn transactions; and any asserted title founded upon it, is utterly void.
The language of the treaty with Spain of 1795, requires the proprietor "to make due and sufficient proof" of his property; and that proof cannot be deemed either due or sufficient, which is stained with fraud.
Nothing is more clear in the laws of nations as an established rule to regulate their rights and duties, and intercourse, than the doctrine that the ship's papers are prima facie evidence of what they state; and that if they are shown to be fraudulent, they are not to be held proof of any valid title whatever.This rule is applied in prize cases; and is just as applicable to the transctions of civil intercourse between nations in times of peace.
In the solemn treaties between nations it never can be presumed that either state intends to provide the means of perpetrating or protecting frauds; but all the provisions are to be construed as intended to be applied to bona fide transactions.
The seventeenth article of the treaty with Spain which provides for certain passports and certificates as evidence of property on board of the ships of both states, is, in its terms, applicable only to cases where either of the parties is engaged in war. This article required a certain form of passport to be agreed upon by the parties and annexed to the treaty. It never was annexed: and, therefore, in the case of The Amiable Isabella, 6 Wheaton, 1, it is held inoperative.
Supposing the African negroes on board the Amisted not to be slaves, but kidnapped, and free negroes, the treaty with Spain cannot be obligatory upon them; and the United States are bound to respect their rights, as much as those of Spanish subjects. The conflict of rights between the parties, under such circumstances, becomes positive and inevitable, and must be decided upon the invariable principles of justice and international law.
The treaty with Spain never could have been intended to take away the equal rights of all foreigners who should assert their claims to equal justice before the Courts of the United States; or to deprive such foreigners of the protection given to them by other treaties, or by the general laws of nations.
There is no ground to assert that the case of the negroes who were on board of the Amistad comes within the provisions of the act of Congress of 1799, or of any other of the prohibitory slave-trade acts. These negroes were never taken from Africa, or brought to the United States in contravention of these acts. When the Amistad arrived she was in possession of the negroes, asserting their freedom; and in no sense could possibly intend to import themselves into the United States as slaves, or for sale as slaves.
The carrying of the Amistad and her cargo into Connecticut by Lieutenant Gedney, and the officers and crew of the Washington, was a highly meritorious and useful service to the proprietors of the ship and cargo, and such, as by the general principles of the maritime law, is always deemed a just foundation for salvage. The rate allowed by the Court, (one-third,) does not seem beyond the exercise of a sound discretion, under the very peculiar and embarrassing circumstances of the case.