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40 U.S. 518; 10 L. Ed. 826
JANUARY, 1841 Term
  Mr. Gilpin, the Attorney-General, in reply.

The judiciary act, which gives to this Court its powers, so far as they depend on the legislature, directs that, on an appeal from the decree of an inferior Court, this Court shall render such judgment as the Court below did, or should have rendered. It is to obtain from it such a decree in this case, that the United States present themselves here as appellants.

At the threshold of their application, the right so to present themselves is denied.They are to be turned away, as suitors having no claim to such interposition. The argument has gone a step further; it seems now to be contended, that their appearance in the Court below, which was not then objected to, is to be regarded as destitute of right, equally with their present appearance here. They are not even mere interlopers, seeking justice without warrant; they are dictators, in the form of supplicants, and their suggestions to the Court, and their application for its judgment, upon solemn and important questions of fact, are distorted by an ingenious logic which it is difficult to follow. Applications,  made without the slightest expression of a wish, except to obtain that judgment, and in a form which, it might be supposed, would secure admission into any Court, are repudiated, under the harsh name of "executive interference." Yet in what single respect do the facts of this case sustain such allegations? How can it be justly said that there has been any "executive interference," not resulting from the adoption of that course which public duty made incumbent; and conducted in the manner, and in that manner only, which was required by that sense of public duty, from which, no officer, possessing a due regard for the obligations of his trust, will ever shrink?

In what situation is the case when it is first presented to the notice of the government of the United States? On nearly, if not exactly the same day that the Secretary of State receives from the minister of Spain an official communication, dated at New York, and stating the facts connected with the schooner L'Amistad, then just brought within the territory of the United States; stating also, that the vessel is a Spanish vessel, laden with merchandise, and with sundry negro slaves on board, accompanied with all the documents  required by the laws of Spain, for navigating a vessel, and for proving ownership of property; and then making an application to the government of the United States to interpose, so that the property thus within our territory, might be restored to its owners pursuant to the treaty; and asserting also, that the negroes, who were guilty, as he contended, of a crime for which they ought to be punished, ought to be delivered up on that account, too, pursuant to the law of nations -- on or about the same day, the letter of the District Attorney, which, though dated a day earlier, is written in Connecticut, also reaches the Department of State, conveying the information that this same property and these same negroes are already within the custody and authority of the judicial tribunals of the United States, by virtue of process, civil and criminal, issued by a judge of the United States, after solemn and deliberate inquiry. The vessel, the cargo, and the negroes had been all taken possession of by a warrant issued by the Court, "as property;" they were then, at that very time, in the custody, keeping, and possession of the Court, as property, without the slightest suggestion having been  made by the executive branch of the government, or even a knowledge of the fact on its part; and when its interposition is formally solicited, its first information relative to the case received, it finds the subject of the demand already under the control of the judicial branch.

In this situation, the executive government, thus appealed to and thus informed, looks to its treaty stipulations, the most solemn and binding compacts that nations know among each other, and the obligations of which can never be treated lightly, so long as good faith forms the first duty of every community. Those stipulations entered into in 1795, (1 Laws of United States, 266,) provide, in the first place, (article 6,) that each party to the treaty, the United States and Spain, shall "endeavour, by all means in their power, to protect and defend all vessels and other effects belonging to the citizens or subjects of the other, which shall be within the extent of their jurisdiction." Again, in the eighth article, it is declared, that "in case the subjects or inhabitants of either country shall, with their shipping, be forced, through stress of weather, or any other urgent necessity for seeking shelter, to  enter any port of the other, they shall enjoy all favour, protection, and help." Again, in the ninth article, it is provided, that "all ships and merchandise, of what nature soever, which shall be rescued out of the hands of any pirates or robbers on the high seas, shall be brought into some port of either state, and shall be delivered into the custody of the officers of that port, in order to be taken care of, and restored entire to the true proprietor, as soon as due and sufficient proof shall be made concerning the property thereof." In the sixteenth article it is further declared, that the liberty of navigation and commerce meant by the treaty, shall extend to all kinds of merchandise, excepting those only which are contraband, and they are expressly enumerated; and in the twenty-second article, the object of the treaty is declared to be "the extension of mutual commerce." When these stipulations were thus made, slaves were a notorious article of merchandise and traffic in each country; not only were they so in the United States, but there was a constitutional provision, prohibiting Congress from interfering to prevent their importation, as such, from abroad. This treaty, with  these provisions thus solemnly and carefully framed, was renewed in 1819; was declared to be still in existence and force. It is declared, (7 Laws of United States, 624,) that every one of the articles above quoted "remains confirmed." It stands exactly as it stood in 1795; and, in the year 1821, after both governments had abolished the slave-trade, the provisions adopted in 1795 are thus, as to "every clause and article thereof," so renewed, solemnly ratified, and confirmed by the President and Senate of the United States. No clause is introduced to vary the nature or character of the merchandise; none to lessen or change the obligations, as would have been the case, had any such change been contemplated; but the two treaties, having the final date of 1821, bear the character of a single instrument.

Now these are stipulations too clear to be misunderstood; too imperative to be wantonly neglected. Could we not ask of Spain the fulfilment of every one of them towards our own citizens? If so, were we not bound, at least, to see that, through some public functionary, or by some means in which nations fulfil mutual obligations, they were performed by us to the subjects of Spain whenever  the casus foederis should arise?

Did it arise in this case? Here were unquestionably, as the representative of Spain believed and stated, a vessel and effects of subjects of that country within our jurisdiction; here was a vessel and merchandise rescued, as he alleged, from the hands of robbers, brought into one of our ports, and already in the custody of public officers.Did not a treaty stipulation require the United States to "endeavour by all means in their power to protect and defend this property?" Did not a treaty stipulation require us to "extend to them all favour, protection, and held?" Did not a treaty stipulation bind us to "restore, entire, the propety to the true proprietors, as soon as due and sufficient proof should be made concerning the same?" If not, then is there no force and meaning in language; and the words of solemn treaties are an idle breath, of which nations may be as regardless as of the passing wind.

The case then had arisen where it was the duty of the United States, as parties to this treaty, to interfere and see that its stipulations were performed. How were they to interfere? Certainly at the instance of the executive, through the medium of the judiciary,  in whose custody and under whose control the property claimed already was. The questions incident to due and sufficient proof of property are clearly judicial questions; but when that property is already in the custody and under the jurisdiction of a Court, they are so from necessity, as it is desirable they always should be, from choice. This position, never denied, was eloquently urged by the counsel of these negroes when they first addressed the executive on the subject, (Cong. Doc. No. 185, p. 64,) and to that view they added the request that he "would submit the question for adjudication to the tribunals of the land."

He did so. He interposed at the instance of the Spanish minister to fulfil a treaty stipulation, by causing a suggestion to be filed in the Court which had already taken cognisance of the subject-matter, and which had the property in its custody. That suggestion stated the allegation of the Spanish minister, that this was property which ought to be restored under the treaty; prayed in effect an inquiry of the Court into that fact; and requested such a decree, after such inquiry, as might enable the United States as a nation to fulfil their treaty obligations  to the Spanish nation. This has been called "executive interference" and "executive dictation." To answer such a charge in any other way than by appealing to the facts, would be to trespass on the patience of the Court.

As if such charges were felt to be insufficient, an attempt is made by argument to prove that the government of the United States had no right thus to interpose; no right to make this suggestion to the District Court. And why not? It is said, because there is no law giving this power, and it cannot be implied; because in a question of private property it must be left to the parties alone to prosecute their rights, and the parties in this case were already doing so for themselves; and because it was an interference and encroachment of the executive on the province of the Court, not sanctioned by any precedent. These are the grounds that have been taken, and it might be sufficient to say that although every one of them existed in as full force when the case was tried in the District Court, none of them were there taken; although every one of them was known before the plea and answer of the respondents, they started none of these objections. After the decree and judgment  of the Court below, it is too late to start them. But there is nothing in them, whenever made.

I. The executive government was bound to take the proper steps for having the treaty executed, and these were the proper steps. A treaty is the supreme law; the executive duty is especially to take care that the laws be faithfully executed; no branch of this duty is more usual or appartent than that which is executed in connection with the proceedings and decrees of Courts. What special assignment, by act of Congress, has been made of the executive duties in the fulfilment of laws through the decrees and judgments of the judiciary? Yet it is matter of daily occurrence. What gives the District Attorney a right to file his libel against a package of goods which the law says shall be forfeited on proof being made that they are falsely invoiced, any more than to file his libel against a vessel and her cargo, which a treaty (a still higher law) declares shall be restored on proof concerning the property thereof? In the one case it is the execution of a law, by an executive officer, through the medium or in connection with the Courts; in the other case it is the execution of a treaty in  a similar manner. But in the latter the duty is, if possible, more imperative, since the execution of treaties being connected with public and foreign relations, is devolved upon the executive branch. These principles are clearly stated by this Court in the case of the Peggy, 1 Cranch, 103; and more fully in that of Williams v. The Suffolk Insurance Company, 13 Peters, 420.

As to its being a question of private property, which the parties might themselves prosecute, it is not perceived how this impairs the right, or even lessens the obligation of the United States to interfere, to the extent and in the manner they did, especially when solicitedby the minister representing these parties; they appeal on behalf, or at the instance of a foreign sovereignty in alliance with them, which assumes itself the rights and interests of the parties; those parties withdraw, as this record expressly shows, when they so appear; no act of theirs occurs after the interposition of the United States at the instance of the Spanish minister, and it is expressly stated that they so withdrew, because their claims were merged in that which was thus presented. This appearance of the United States is not,  as has been argued, a substitution of themselves as parties in interest; it is a substitution under a treaty obligation; a substitution assumed in their public character to perform a public duty, by means of which the further prosecution of the individuals is (as the treaty intended it should be) rendered unnecessary. Besides, what is there to show that all the parties having an interest in this property were before the Court? It is nowhere so stated; and, if they were not, the objections totally fail.

How this proceeding is an interference by the executive with the Court; how it is an encroachment on the judicial department; how it is a dictation to the Court, or advice to it to do its duty, it is difficult to conceive; and therefore difficult to reply to such constructions of an act, analogous to the conduct of every proceeding in a Court, rendered necessary to or imperative upon the executive in the execution of the laws. If this libel, so definite in what it alleges and what it asks, founded on the official request of a public functionary, and intended to obtain the execution of a definite treaty obligation, be an infringement of judicial authority, it will be scarcely possible  for a District Attorney, hereafter, to file an information, or present an indictment.

Nor is it, as is alleged, without precedent. In fact, every case of a libel filed by the United States, soliciting the examination and decree of a Court in rem, is a precedent, so far as any principle is concerned. But the cases of the Exchange, the Cassius, and the Eugenia, are not to be distinguished on any ground. They were cases of property in Court, under libels of private suitors; and United States interposed, under their obligations to foreign powers. That those obligations were general, not arising by special treaty provisions, makes the cases less strong. It is said, that the property in litigation, in those cases, was to be delivered to the sovereign; is this property less in that position, when it is asked for by the representative of the sovereign? It is said they were not delivered up as property; the Exchange and Cassius were so delivered: as public property of "the Emperior Napoleon," so stated in terms, and of the French republic. The Eugenia was delivered to the consul of France, that it might be proceeded against in rem, if desired. In the forms of proceeding by the United  States, and in the decrees, every thing resembles what has been done or sought for in this case. But, in fact, every instance of interposition of foreign functionaries, consuls, and others, affords a precedent. They have no right of property. They are no parties in interest. They interpose in behalf of the citizen. Did not this Court, in the case of the Bello Corrunes, 6 Wheaton, 152, where the express point was made, and the interposition of the Spanish consul, on behalf of his fellow-citizens, was resisted, sustain his right, as a public functionary, although it was admitted he could show no special authority in the particular proceeding? So in the case of the Antelope, 10 Wheaton, 66, the consul was allowed to interpose for Spanish subjects, who were actually unknown. It will hardly be denied, that where the foreign functionary may thus come into our Courts, to prosecute for the party in interest, our own functionaries may do the same. As to the case of Nash, Bee, 266, it clearly sustains, so far as the course of proceeding, by means of the judiciary, is concerned, the right and duty of the executive thus to interpose. That was an application for the restoration of a criminal  under treaty stipulations. The main question was, whether this surrender belonged exclusively to the executive, or was to be effected through the medium of the judiciary, and while Chief Justice Marshall sustained the authority of he executive, as founded on the casus faederis, he admitted that the aid of the judiciary might, in some cases, be called in. If this were so, as to persons, it is at least equally so, in regard to property. In respect to both, proof is to be made; without proof, neither the restoration of the one nor the other can be effected; that proof is appropriately made to and passed upon, by the judicial tribunals; but as the execution of the treaty stipulation is vested in the executive, if the case is proved to the satisfaction of the judiciary, its interposition, so far as is necessary to that end, forms a proper part of the judicial proceedings.

It seems clear, then, that these objections to the duty of the executive to interpose, where the property to be restored is in the custody of the Court, cannot be sustained either by principle or authority. And such appears to be the sentiment of the counsel for the appellees, from the zeal with which they have pressed  another argument, to reach the same end. That argument is, that the United States could not interpose, because the Spanish minister never had asked for the restoration of the slaves as property; and, because, if he had, he had sought it solely from the executive department, and denied the jurisdiction of the Court. Now, suppose this were so, it would be a sufficient answer to say, that, independent of the request of the foreign functionary, the United States had a treaty obligation to perform, which they were bound to perform; and that, if a request in regard to its performance was made upon grounds not tenable, this did not release the United States from their obligation on grounds which, as they knew, did properly exist. But, in point of fact, the Spanish minister did, from the first, demand these negroes, as property belonging to Spanish subjects, which ought to be restored as property under the treaty of 1795. Passages have been culled from the letters of Mr. Calderon, and Mr. Argaiz, to show that their surrender as criminals was only sought for; but the correspondence, taken together, bears no such construction. It is true they were demanded as criminals; the alleged crime  had been committed on Spanish subjects, and on board of a Spanish ship; by the law of nations and by the judgment of this Court, such a case was within Spanish jurisdiction. Whether a nation has a right, by the public law, under such circumstances, to require the extradition of the criminal, is a point on which jurists have differed; but most independent nations, if not all, have properly assumed and maintained the right to determine the question for themselves; denying the existence of any such obligation. To make the request, however, is a matter of constant occurrence; to sustain it by appeals to the law of nations, as conferring a right, is usual; we have in our own government asked for such extradition, at the very time we have denied the existence of the obligation. That the Spanish minister should, therefore, request the delivery of these persons as criminals; that he should sustain his request as one consonant to the law of nations, is not in the least a matter of surprise.But did that interfere with his demand for them also, as property? There is no reason why it should do so, and the correspondence shows that it did not, in point of fact.

The very first letter of Mr.  Calderon, that of 6th September, 1839, quoted and commented upon by the counsel for the appellees, commences with a reference to the treaty stipulation, as one of the foundations and causes of his application. It is his imperious duty, he says, to claim an observance of the law of nations, and of the treaties existing between the United States and Spain. Then follow, throughout the letter, repeated references to the double character of the demand for the slaves; references which it seems scarcely possible to misconceive. He declares, officially declares, that the vessel, "previous to her departure, obtained her clearance from the custom-house, the necessary permit from the authorities for the transportation of the negroes, a passport, and all the other documents required by the laws of Spain for navigating a vessel, and for proving ownership of property; a circumstance particularly important," in his opinion.

So Mr. Argaiz, in his letter of the 26th November, 1839, evidently pursues the same double demand; that they should be surrendered under the treaty as property, and that they are also subject to delivery as criminals. If there were a doubt as to his meaning, it must be removed,  by observing his course on the passage of the resolutions adopted unanimously by the American Senate, on the 15th of April last. Those resolutions declared:

1. That a ship or vessel on the high seas, in time of peace, engaged in a lawful voyage, is, according to the law of nations, under the exclusive jurisdiction of the state to which the flag belongs; as much so, as if constituting a part of its own domain.

2. That if such ship or vessel should be forced, by stress of weather, or other unavoidable cause, into the port and under the jurisdiction of a friendly power, she and her cargo, and persons on board, with their property, and all the rights belonging to their personal relations, as established by the laws of the state to which they belong, would be placed under the protection which the laws of nations extend to the unfortunate under such circumstances.

On the passage of these resolutions, so evidently referring to the slaves as property, adopted in relation to the slaves carried into Bermuda and there set free, Mr. Argaiz claimed, for the owners of the slaves on board the Amistad, the application of the same rules. To complete the chain of evidence derived from the correspondence,  we have a letter addressed by him to the Secretary of State, on the first moment that the allegation of the request being for their delivery as criminals, was made official, by the motion of the appellees lately filed in this Court -- we have a note to the Secretary of State, explicitly renewing his demand in the double relation.

It is evident, then, that there was a clear, distinct, and formal request, on the part of the Spanish minister, for the delivery of these negroes, by virtue of the treaty, as the property of Spanish subjects. This fact, it has been endeavoured to establish, from the correspondence, because it has been alleged that the executive of the United States has given a construction to the request of the Spanish minister, at variance with that stated in the libel of the District Attorney. As to any legal bearing on the case, it does not appear to be material. So far as the Courts of justice are concerned, no principle is better settled than that, in relation to the political operations of the government, the judiciary adopts the construction given to their own acts and those of foreign representatives, by the proper executive departments. The opinion of this Court  to that effect, is apparent in the decisions, already cited in the cases of the Peggy and the Suffolk Insurance Co.; and when, in the case of Garcia v. Lee, the whole matter was reviewed, with special reference to the construction of treaties, it was solemnly and deliberately affirmed. That the Department of State regarded this request as one for the delivery of property, is evident, not merely from the libel of the District Attorney, but from the whole correspondence. To obtain a different view, we must, indeed, pick out sentences separate from their context, and give to particular phrases a meaning not consistent with the whole scope of the documents in which they are found.

But, as if the allegation, tht the Spanish minister never required the restoration of these slaves as property, under the treaty, was not to be clearly established by the correspondence, it is endeavoured to be sustained by the fact, that he refused to submit to the judgment of the court, as definitive of the rights of Spain and her subjects, under the treaty. How this refusal changes the character of his demand on the one hand, or the proper mode of proceeding by the executive on the other, it is not easy  to perceive. No nation looks, in its intercourse under a treaty with another, to any but the executive government. Every nation has a right to say with what act she will be satisfied as fulfilling a treaty stipulation, the other party to the treaty reserving the same right. Has not our executive over and over again demanded redress for acts sanctioned by decrees of foreign tribunals? Have we not sought that redress by applications made directly to their executives? Has it ever been heard, that the claims of American citizens for redress from foreign governments, are precluded, because foreign Courts have decided upon them? Such has not been the case in point of fact, and such is not the course authorized by the law, and adopted in the intercourse of nations. To say, therefore, that Spain would not recognise a decree of a Court, which should award her less than the treaty, in her opinion, stipulated she should receive, does not, as it must appear, affect, in any manner whatever, the rights under it, or the mode of proceeding to be adopted by our own executive. With the latter the course was plain. The matter was already before the judiciary, a component and independent branch  of the government to which it appropriately belonged. Its action is calmly waited for, as affording the just and only basis of ultimate decision by the executive.

Viewed, then, on every ground of treaty obligation, of constitutional duty, of procedent, or of international intercourse, the interposition of the executive in the mode adopted, so far from being "unnecessary and improper," was one of duty and propriety, on receiving from the Spanish minister his official representation, and from the District Attorney the information that the matter was already in charge of the Court.

And now it may be asked, whether there is any thing in these facts to justify the censure so largely cast upon the executive for the course which it was deemed a duty to pursue; any thing that authorizes "its arraignment," to use the language of the counsel for the appellees, before the judicial tribunals, "for their judgment and censure?" Performing cautiously an international obligation; passing upon no rights private or public; submitting to the Courts of justice the facts made known officially to it; seeking the decrees of the legitimate tribunals; communicating to foreign functionaries, that by these  decrees its course would be governed -- it is these acts which are argued upon, as ground for censure and denunciation. With what justice may be well tested, by placing another government in the position of our own. Let us recollect that there is among nations as among men, a golden rule; let us do to them as we wish them to do to us; let us ask how we would have our own minister and representative in a foreign land to act by us, if we were thrown in like manner on a foreign shore -- if a citizen of South Carolina, sailing to New Orleans with his slaves, were thus attacked, his associates killed, himself threatened with death, and carried for months in a vessel scarcely sea worthy, beneath a tropical sun.Should we blame the American minister who had asked the interposition of the Courts? Should we blame the foreign government that facilitated that interposition? Look at the case of the negroes carried to Bermuda; have we there -- as we are now denounced for not doing -- have we there gone as private suitors into the Courts, or have we sought redress, as nations seek it for their citizens?

The question of freedom or slavery was there brought, exactly as it was here, before the  judicial tribunals, at the instance of persons who took up the cause of the slaves; the owners did not pursue their claims as a mere matter of private right; the government of the United States, through its minister, appealed to the executive government of Great Britain; sought redress from that quarter; and received it. The value of the slaves was paid, not to the individuals, but to our own government, who took their business upon themselves, exactly as the Spanish minister has assumed that of Ruiz and Montez.

Let us then be just; let us not demand one mode of proceeding for ourselves, and practise another towards those who have and equal right to claim similar conduct at our hands.

II. The Attorney General then proceeded to reply to the position of the counsel for the appellees, that whatever might be the right of the United States as parties to the proceedings in the District and Circuit Courts, they had yet no authority to appeal, in such a case, from the decrees of those Courts, to this tribunal, and that, therefore, the present appeal should be dismissed. As no decision ws given by the Court on this point, and the argument in support of the motion, and on behalf of the  appellees, has not been reported, that in reply, and in behalf of the United States, as appellants, is also necessarily omitted. The position contended for by the Attorney General was, that the case was before this Court -- coram justice; and that the case itself, the parties to it, and the mode of bringing it up, were all in accordance with the law authorizing appeals. If so, he submitted, that this Court has jurisdiction of it, and will revise the decree that has been pronounced by the Circuit Court, which is all that was solicited. That the highest judicial tribunal should pronounce upon the facts set out in this record, was all that the executive could desire; they present questions that appropriately belong to the judiciary, as the basis of executive action; they relate to the rights of property, and the proofs concerning it; and when the decision of that co-ordinate branch of the government, to which the examination of such questions appropriately belongs, should be made, the course, of executive action would be plain.

III. The only question, then, that remains to be considered, is, was the decree erroneous?

The decree, as it stands, and as it now comes up for examination,  is, that this vessel and her cargo shall be delivered up to the Spanish minister, for the Spanish owners, not entire, but after deducting one-thrid for salvage, to be given to Lieutenant Gedney and his associates; and that the negroes, except Antonio, shall be delivered to the President of the United States, to be sent to Africa, pursuant to the provisions of the act of 3d March, 1819, § 2. 2 Story's Laws, 1752. Now it is submitted, that this decree is erroneous, because the vessel, cargo, and negroes were all the property of Spanish subjects, rescued from robbers, and brought into a port of the United States, and due proof concerning the property in them was made; that, therefore, the decree should have been, that they be delivered to the Spanish owners, or to the Spanish minister, for the owners, according to the stipulations of the ninth article of the treaty of 1795.

The vessel and cargo are admitted to be merchandise or property, within the meaning of the treaty. Are slaves also property or merchandise, within its meaning?That they are not, has been very elaborately argued by the counsel for the appellees; yet, it is confidently submitted that, both by the laws of Spain and   of the United States, slaves are property; and a fair construction of the treaty shows that it was intended to embrace every species of property recognised by the laws of the two contracting nations. We are asked for a law to this effect; a law establishing the existence of slavery in the Spanish dominions. It might be sufficient to say, that what is matter of notorious history will be recognised by this Court, without producing a statutory regulation; but the royal decree of 1817, which promulgates the abolition of the foreign slave trade, refers throughtout to the existence of slavery in the Spanish Indies, and this Court, in many of its adjudications, has recognised its existence.

If slaves then, were, property by the laws of Spain, it might be justly concluded that, even if they were not so recognised by the United States, still they are property within the meaning of the treaty, because the intention of the treaty was to protect the property of each nation. But, in fact, slaves were, and are, as clearly recognised by them to be property, as they ever were by Spain. Our citizens hold them as property; buy and sell them as property; legislate upon them as property. State after  state has been received into this Union, with the solemn and deliberate assent of the national legislature, whose constitutions, previously submitted to and sanctioned by that legislature, recognise slaves as merchandise; to be held as such, carried as such from place to place, and bought and sold as such. It has been argued that this government, as a government, never has recognised property in slaves. To this it is answered, that if no other proof could be adduced, these acts of the national government are evidence that it has done so. The Constitution of the United States leaves to the states the regulation of their internal property, of which slaves were, at the time it was formed, a well known portion. It also guaranteed and protected the rights of the states to increase this property, up to the year 1808, by importation from abroad. How, then, can it be said, that this government, as a government, never has recognised this property? But, if slaves be not so regarded, by what authority did the general government demand indemnity for slaves set free in Bermuda by the British government? Is not this an act, recent in date and deliberate in conduct, showing the settled construction  put upon slaves as property. Is not the resolution of the Senate -- the unanimous resolution -- a declaration that slaves, though liberated as persons, and so adjudged by a foreign Court, are, in fact, by the law of nations, property, if so allowed to be held in the country to which the owner belongs?

But it is contended that, although they may have been recognised as property by the two nations, they were not such property as was subject to restoration by the treaty. Now, to this it may be answered, in the first place, that every reason which can be suggested for the introduction of the treaty stipulations to protect and restore property, applies as fully to slaves as to any other. It is, in states where slavery exists, a valuable species of property; it is an object of traffic; it is transported from place to place. Can it be supposed, that the citizen of Virginia, sailing to New Orleans with his slaves, less needs the benefit of these treaty stipulations for them, than for any other property he may have on board, if he is carried into a port of Cuba, under any of the adverse circumstances for which the treaty was intended to provide? But, again; is not the treaty so broad  and general in its terms, that one of the contracting parties has no right to make an exclusion of this property, without the assent of the other? The sixteenth article of the treaty says, it is to extend to "all kings" of merchandise, except that which is contraband. Was not a slave a kind of merchandise, then recognised as such by each nation, and allowed to be imported into each nation, by their respective laws?

The treaty of 1819, which was ratified in 1821, after the slave trade was abolished, but while slave property was held in both countries, renews this article as it stood in 1795. Is it possible to imagine that, if a new policy was to be adopted, there would not have been an express stipulation or change in regard to this, as there was in regard to other articles of the old treaty? If further proof were wanting, it would be found in the fact, that the executive authorities of both nations, at once and unequivocally, considered the terms of the treaty as extending to slave property. Independently of the authority which this decision on the political construction of a treaty will have with this Court, upon the principles it has laid down, it may be regarded as strong  evidence of the intentions of the contracting parties; and when we see our own government and the Senate of the United States, seriously examining how far a similar case is one that falls within the class of international obligations, independent of treaty, we may give to its deliberate judgment, in the proper construction of this treaty, the highest weight.

The next inquiry is, whether the property in question was "rescued out of the hands of any pirates or robbers on the high seas, and brought into any port of the United States?" That the vessel was at anchor below low water mark when taken possession of, and consequently upon the high seas, as defined by the law of nations, is a fact not controverted; but it is objected that the negroes by whom she was held were not pirates or robbers in the sense of the treaty, and that if they were, its provisions could not apply to them, because they were themselves the persons who were rescued. That the acts committed by the negroes amount to piracy and robbery, seems too clear to be questioned.Piracy is an offence defined and ascertained by the law of nations; it is "forcible depredation on the sea, animo furandi." United States v. Smith,  5 Wheaton, 153. Every ingredient necessary to constitute a crime thus defined, is proved in the present case. It was the intention of the treaty, that whenever, by an act of piracy, a vessel and property were run away with -- taken from the owners, who are citizens of the United States or Spain -- it should, if it came into the possession of the other party, be kept by that party and restored entire. Slaves differ from other property, in the fact that they are persons as well as property; that they may be actors in the piracy; but it is not perceived how this act, of itself, changes the rights of the owners, where they exist and are recognised by law. If they are property, they are property rescued from pirates, and are to be restored, if brought by the necessary proof within the provisions of the treaty.

What are those provisions? That "due and sufficient proof must be made concerning the property thereof."

The first inquiry "concerning property," is its identity. Is there any doubt as to the identify of these slaves? There is clearly none. Are they negroes, in a country where slavery Spanish subjects? They are engroes, in a country where slavery exists, passing from one  port of the Spanish dominions to another, in a regularly documented coasting vessel; and they are proved to be, at the time they leave Havana, in the actual possession of the persons claiming to be their owners. So far as all the prima facie evidence extends, derived from the circumstances of the case at that time, they may be regarded as slaves, as much as the negroes who accompany a planter between any two ports of the United States. This, then, is the first evidence of property -- their actual existence in a state of slavery, and in the possession of their alleged owners, in a place where slavery is recognised, and exists by law.

In addition to this evidence derived from possession, Ruiz and Montez had, according to the statement of the Spanish minister, which was read by the counsel for the appellees, "all the documents required by the laws of Spain for proving ownership of property." They have a certificate, under the signature of the Governor General, countersigned or attested by the captain of the port, declaring that these negroes are the property of the Spanish citizens who are in possession of them. It has already been shown, by reference to the laws of Spain, that the  powers of a Governor General in a Spanish colony are of a most plenary character. That his powers are judicial, was expressly recognised by this Court, in the case of Keene v. M'Donough, 8 Peters, 310. If such are the powers of this officer, and if this be a document established as emanating from him, it must be regarded as conclusive in a foreign country. The cases already cited, establish the two positions, that, as regards property on board of a vessel, the accompanying documents are the first and best evidence, especially when attended with possession; and that a decree, on judgment, or declaration of a foreign tribunal, made within the scope of its authority, is evidence, beyond which the Courts of another country will not look.These rules are essential to international intercourse. Could it be tolerated, that where vessels, on a coasting voyage, from one port of a country to another, are driven, without fault of their own, to take refuse in the harbour of another country, the authentic evidences of property in their own country are to be disregarded? That foreign Courts are to execute the municipal laws of another country, according to their construction of them? Can it  be that the Courts of this country will refuse to recognise the evidence of property, which is recognised and deemed sufficient in the country to which that property belongs? We have unquestionable evidence, that such documents as these are regarded as adequate proofs of property in Cuba.But it is said this certificate is a mere passport, and no proof of property. To this it is replied, that it is recognised as the necessary and usual evidence of property, as appears by the testimony referred to.It is true it is a passport for Ruiz, but it is not a mere personal passport; it is one to take property with him, and it ascertains and describes that property.

But we are told it must be regarded as fraudulent by this Court; and the grounds on which this assertion is made, are the evidence adduced to show that these negroes have been imported into Cuba from Africa, since the treaty between Great Britain and Spain. Is this evidence legal and sufficient to authorize this Court to declare the particular fact for which it is vouched -- that the negroes were imported into Cuba contrary to law? If it is sufficient for this, does such illegal importation make the negroes free men in he island   of Cuba? If it does, will this Court declare the certificate to be null and void, or leave that act to the decision of the appropriate Spanish tribunals?

In the argument submitted on the part of the United States, in opening the case, the nature of this evidence has been commented upon. It is such chiefly as is not legal evidence in the Courts of the United States. Now, the question is not as to the impression derived from such evidence, but it is whether, on testimony not legally sufficient, the declaration of a competent foreign functionary will be set aside? As if there were doubt whether a Court of the United States would so do, the admissions of Ruiz, and of the Attorney of the United States are vouched. Yet it is apparent that these were admissions, not of facts known to themselves, but of impressions derived from evidence which is as much before this Court as it was before them. To neither one nor the other was the fact in question personally known. It was inferred by them from evidence now for the most part before this Court.

But, admitting the fact of the recent importation from Africa, still, nothing has been adduced to controvert the position, taken in opening,  that the laws of Spain required, in such a case, and even in the case of negroes actually seized on board of a Spanish vessel on her voyage from Africa, a declaration by a Court expressly recognised by Spain, to establish their freedom. However much we may abhor the African slave trade, all nations have left to those in whose vessels it is carried on, the regulation and punishment of it. The extent to which Spain was willing to permit any other nation to interpose, where her vessels or her subjects were concerned, is carefully determined in this very treaty. The principal witness of the appellees expressly admits, that when negroes are landed, though in known violation of the treaty, it is a subject to be disposed of by the municipal law. Now, it is not pretended here, that, even if these negroes were unlawfully introduced, they have been declared free. Can, then, this Court adjudge that these negroes were free in the island of Cuba, even if the fact of their recent importation be proved? Much more, can they assume to do it, by putting their cosntruction on a treaty, not of the United States, but between two foreign nations; a treaty which those nations have the sole right to  construe and act upon for themselves?

But, if satisfied that the Governor General has been imposed upon, and the documents fraudulently obtained, still, is the fraud to be punished and the error to be rectified in our Courts, or in those of Spain? What says Sir William Scott, in the case of the Louis, when asked what is to be done if a French ship laden with slaves, in violation of the laws of that country, is brought into an English port: "I answer," says he, "without hesitation, restore the possession which has been unlawfully divested; rescind the illegal act done by your own subject, and leave the foreigner to the justice of his own country." Can a rule more directly applicable to the present case be found? "The Courts of no country," says Chief Justice Marshall, in the case of the Antelope, "execute the penal laws of another." In the case of the Engenia, wehre a French vessel was liable to forfeiture under the laws of France, for violating the laws prohibiing the slave trade, Judge Story directed, not that she should be condemned in our own Courts, but that she should be sent to France. This, says he, "enables the foreign sovereign to exercise complete jurisdiction, if he  shall prefer to have it remitted to his own Courts for adjudication." This, he afterwards adds, "makes our own country not a principal, but an auxiliary in enforcing the interdict of France, and subserves the great interests of universal justice."

Are not these the true principles which should govern nations in their intercourse with each other; principles sanctioned by great and venerated names? Are not these the principles by whcih we would require other nations to be governed, when our citizens are charged, in a foreign country, with a breach of our own muniticpal laws? And is it not productive of the same result? Do we doubt that the Courts and officers of Spain will justly administer her own laws? Will this Court act, on the presumption that the tribunals of a foreign and friendly nation will fail to pursue that course which humanity, justice, and the sacred obligations of their own laws demand? No nation has a right so to presume, in regard to another; and, notwithstanding the distrust that has been repeatedly expressed in the progress of this cause, in regard to the Spanish tribunals and the Spanish functionaries; yet a just respect towards another and a friendly nation;  the common courtesy which will not suppose in advance, that it will intentionally do wrong; oblige us to believe, and warrant us in so doing, that if the laws of Spain have been violated; if its officers have been deceived; and if these negroes are really free; these facts will be there ascertained and acted upon, and we shall as "auxiliaries," not principals, best "subserve the cause of universal justice."

If this view be correct, and if the evidence is sufficient to prove the property of the Spanish subjects in the island of Cuba, the only question that remains to be considered is, whether the acts of the slaves during the voyage changed their condition. It has been argued strongly that they were free; that they were "in the actual condition of freedom;" but how can that be maintained? If slaves by the laws of Spain, they were so on board of a Spanish vessel, as much as on her soil; and will it be asserted that the same acts in the island of Cuba would have made them free? This will hardly be contended. No nation recognising slavery, admits the sufficiency of forcible emancipation. In what respect were these slaves, if such by the laws of Spain, released from slavery by their  own acts of aggression upon their masters, any more than a slave becomes free in Pennsylvania, who forcibly escapes from his owner in Virginia? For this Court to say that these acts constituted a release from slavery, would be to establish for another country municipal regulations in regard to her property; and, not that only, but to establish them directly in variance with our own laws, in analogous cases. If the negroes in this case were free, it was because they were not slaves when placed on board the Amistad, not because of the acts there committed by them.

It is submitted, then, that so far as this Court is concerned, there is sufficient evidence concerning this property, to warrant its restoration pursuant to the provisions of the treaty with Spain; and that, therefore, the judgment of the court below should be reversed, and a decree made by this Court for the entire restoration of the property.