# The Captives of the Amistad/Section 3

Footnotes are from the original text.
The diplomatic questions involved were of a delicate nature. The Spanish treaty provided that in case the inhabitants of either country, with their shipping, should be forced through pursuit of pirates or enemy or any other urgent necessity, to enter into any roads or ports of the other, they should enjoy all protection and in no ways be hindered from returning; and that all ships and merchandise of what nature soever, which should be rescued out of the hands of any pirates or robbers on the high seas, and brought into a port of either State, should be taken care of and returned entire to the true proprietor, as soon as due and sufficient proof of ownership should be made.
If the ship’s papers of the Amistad were to be accepted as true, the negroes were rightfully put on board of her as slaves, and were being lawfully transported to a Spanish port, when they rose and freed themselves, and therefore were guilty under Spanish law of piracy and murder; they were then also property and merchandise within the description of the treaty.
The friends of the Africans feared that the President and Secretary of State might take matters into their own hands, and by some mere executive order hand them over to Spain as fugitives from justice, to be sent back to Cuba and tried for murder. The Spanish minister had formally demanded their extradition as early as September 6th. In his dispatch of that date, after thanking our government for the seizure of the Amistad and release of Ruiz and Montez, he said:
“The act of humanity thus performed would have been complete, had the vessel at the same time been set at liberty, and the negroes sent to be tried by the proper tribunal, and by the violated laws of the country of which they are subjects.
“If,” he added, “they should be condemned by the incompetent tribunal that has taken upon itself to try them, as pirates and assassins, the infliction of capital punishment in this case would not be attended with the salutary effects had in view by the law when it resorts to this powerful and terrible alternative, namely, to prevent the commission of similar offenses.” The claims presented therefore were that the Amistad and her cargo be forthwith given up to her owners, and “that the negroes be conveyed to Havana, or be placed at the disposal of the proper authorities in that part of Her Majesty’s dominions, in order to their being tried by the Spanish laws which they have violated; and that in the meantime they be kept in safe custody, in order to prevent their escape.”
On Sept. 13th, Messrs. Staples and Sedgwick, the New York counsel of the “Amistad committee” which had charge of the funds contributed to defend the Africans, addressed a letter to the President, protesting against any compliance with the demand of the Spanish minister. Their claim was that, even under Cuban law, the negroes were unlawfully enslaved, and had a right to strike for their freedom.
“It is this question,” they said, “that we pray may not be decided in the recesses of the Cabinet, where those unfriended men can have no counsel, and can produce no proof, but in the halls of Justice, with the safeguards that she throws around the unfriended and the oppressed.”
This letter, together with that of the Spanish minister, was referred to the Attorney General, Felix Grundy of Tennessee. His opinion was that the demands of Spain were just; that the negroes could not be tried here for an offense committed on a Spanish ship in Spanish waters; that the government could not go behind the ship’s papers to ascertain whether they were really slaves or not, but must leave the determination of that question to the Spanish authorities; and, in conclusion, “that a delivery to the Spanish minister is the only safe course for this government to pursue.”
It is the opinion of many of the most eminent authorities in international law, that it rests in the discretion of the executive department of every government to surrender a fugitive from another country, by which his return is sought, upon reasonable proof that he has been guilty of any offence which is commonly regarded as a gross crime by civilized nations. President Lincoln in 1864, surrendered in this way to Spain, a Cuban officer named Arguelles, who had fraudulently sold into slavery some negroes placed in his custody, although still no extradition treaty existed between the two governments; and in 1876, William M. Tweed was in a similar manner surrendered to the United States, by Spain, to be tried for defrauding the city of New York.
But while the opinion of Mr. Grundy was approved by the Cabinet, and the Spanish minister confidentially informed of its main features, as early as November, it was decided to issue no warrant of extradition until the termination of the proceedings in the District Court.
These had become still more complicated by a new libel filed by the District Attorney, setting out more particularly the claim of Spain, and a petition by the Vice Consul of that nation, stating that Antonio, the mulatto cabin-boy, was the slave of the murdered captain of the Amistad, and wanted to return to slavery, and praying that he be released and put in charge of the consulate for that purpose. The owners of the merchandise on board the schooner also put in their claims for its restitution. In behalf of the Africans, a plea that the Court had no jurisdiction over them was first entered, and then withdrawn, and replaced by an answer in which they asserted their right freedom, and justified their taking possession of the vessel, as a lawful attempt to vindicate it. A good deal of testimony had also been taken, among which was a long deposition of Dr. R. R. Madden, who had been for years the British Commissioner of Liberated Africans at Havana, and stated that the slave-trade was still carried on there, by the fraudulent connivance of the authorities.
The “law’s delay” had by this time quite outrun the patience of the Spanish minister, the Chevalier de Argaiz, and he sent in a warm remonstrance, to which the Secretary of State replied that he could not “but perceive with regret that the Chevalier de Argaiz had not formed an accurate conception of the true character of the question, nor of the rules by which, under the constitutional institutions of this country, the examination of it must be conducted.”
“Possibly,” was the minister’s rejoinder, “the undersigned may not have formed such an accurate conception of this affair since it has been carried within the circle of legal subtleties, as he has not pursued the profession of law; but he is well persuaded that if the crew of the Amistad had been composed of white men, the Court or the corporation to which the Government of the United States might have submitted the examination of the question, would have observed the rules by which it should be conducted under the constitutional institutions of the country, and would have limited itself to the ascertainment of the facts of the murders committed on the 30th of June; and the undersigned does not comprehend the privilege enjoyed by negroes, in favor of whom an interminable suit is commenced, in which everything is deposed by every person who pleases; and for that object an English doctor, who accuses the Spanish Government of not complying with its treaties, and calumniates the Captain General of the island of Cuba, by charging him with bribery.”
A few days after the receipt of this dispatch, Mr. Forsyth had an interview with the Chevalier de Argaiz, in which he suggested that the District Court might decide in January in favor of the delivery of the vessel, cargo and negroes to Spain, and that it would be necessary to have some one at New Haven ready to take immediate possession. The Amistad was so covered with barnacles and grass, as to be unfit for a voyage, and as Spain had no ship then in our waters, the minister asked that our government might send them back in one of its own vessels. The President consented, giving as one of his reasons that this would give the Africans the fairest opportunity to try their claim to liberty in the proper court, under the protection of the Spanish authorities, and promising to send with them the officers of the Washington, by whom they were captured, and a copy of the record of all the judicial proceedings in this country.
Enough of these proceedings came to the knowledge of the British Government, to prompt them to make a friendly effort in behalf of the captives at Madrid, and on Jan. 5, 1840, their minister at that Court addressed a communication to the department of foreign affairs, stating that he had been instructed “to call upon the Government of her Catholic Majesty to issue with as little delay as possible, strict orders to the authorities of Cuba, that if the request of the Spanish minister at Washington be complied with these negroes may be put in possession of the liberty of which they were deprived, and to the recovery of which they have an undeniable title,” and adding, “I am further directed to express the just expectations of her Majesty’s Government that the government of her Catholic Majesty will cause the laws against the slave-trade, to be enforced against Messrs. José Ruiz and Pedro Montez, who purchased these newly imported negroes, and against all such other Spanish subjects as have been concerned in this nefarious transaction.”

## Footnotes

* ↑ Opinions of the Attorney General, iii. 484.