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 the description of merchandise in the sense of the treaty. 2d. That there has been a rescue of them on the high seas out of the hands of the pirates and robbers, which, in the present case, can only be by showing that they themselves are pirates and robbers. 3d. That Ruiz and Montez, the asserted proprietors, are the true proprietors, and have established their title by competent proof."

As to the first point, if the negroes had been lawfully held as slaves under the Spanish law, said the Justice, "we see no reason why they may not justly be deemed, within the intent of the treaty, to be included under the denomination of merchandise. . . . . But admitting this, it is clear, in our opinion it is plain beyond controversy, if we examine the evidence, they never were the lawful slaves of Ruiz or Montez, or of any other Spanish subject. . . . If, then, these negroes are not slaves. . . there is no pretence to say they are pirates or robbers. But it is argued on behalf of the United States that the ship and cargo and negroes were duly documented as belonging to Spanish subjects, and this court has no right to look behind these documents. . . . To this argument we can in nowise assent. . . . The very language of the ninth article of the treaty of 1795 requires the proprietor to make due and sufficient proof of his property. And how can that proof be deemed either due or sufficient which is but a connected and stained tissue of fraud? Upon the whole, our opinion is. . . that the said negroes be declared free, and be dismissed from the custody of the court, and go without date."