Chapter 5 Opportunity to challenge justice adrift at sea

Brother Lu: Hello! Did not expect to receive your reply so soon.You said that the "Amstad" incident really attracted you. In order to see me chatting earlier, you wrote this letter quickly, with the purpose of "throwing bricks and attracting jade".In this way, I have to hurry up and write. When the "Amstad" drifted, the United States had indeed reached a point where both sides were at war on the issue of slavery.So, how does this country solve this problem? You must already have some ideas about the loose state of the United States at that time.However, I don't know if you have thought about it, but this actually reflects a very interesting state.That is, if its parts are loosely connected, it can continue to exist as a whole for a long time, and what maintains it may be quite powerful.

This maintenance is the most basic consensus of the United States as a country to abide by the contract.You can think about it this way, in such a loose state structure, if there is no basic agreement on the contract, it would not have fallen apart long ago. The various laws based on the Constitution are the basic basis for such a contract, that is, the collection of loose states under the name of the United States.Since this collection is voluntary, the act of complying with the contract is also voluntary.Although the United States' experience in this formation makes its central government often look weak, it has an advantage, that is, it is easier to establish "sincere laws."

Because the establishment of the law is everyone's contract.It is not an imperial decree from the emperor, nor is it a directive document from the upper class.Therefore, it also has a natural protective layer, which is public approval.The birth of one free state after another in the north that abolished slavery came about in this way: after the most extensive public debate, a basic agreement was reached, and then legislation was made.In this way, the law is relatively more based on "sincerity". If some people's understanding goes a step further, then the American approach is to take every opportunity to question the historical flaws of the existing laws and trigger a new round of public debate.On the basis of winning the approval of the majority of the people, it seeks to obtain new precedents as a basis, and even cause new legislation at all.

Therefore, in addition to the long-term propaganda of "public forums" through the news media and public places, "challenging the judiciary" to attract public attention and debate is also a way that Americans have been using to promote historical progress since the founding of the country.This is why there are so-called "milestone cases" in the United States.Most of the footprints of American progress are made up of individual Supreme Court decisions.But how to "challenge the justice"? That is, people who firmly believe that their actions are right, go to court in a way that violates a certain law, and cause a debate about whether the law itself is reasonable.Appeal after losing, and the lawsuit will go up to the Supreme Court.

Promoting social progress in this way places high demands on both parties to the contract. For one end of the contract, the independence of the judiciary and the fairness and openness of the judiciary are required.Otherwise, you will bump into it head-on, and in the end, the court will collude with the law, and the door will be closed in private, and you will be sentenced and locked up.The judicial system has no sincerity to take such challenges seriously in accordance with legal principles.Of course, it doesn't make any sense.This is a basic requirement for the judicial system itself.

For the other end of the contract, the challenger is required to abide by the contract that everyone has made.Since it is a "challenge", there may be winners and losers.Everyone is happy if they win, but if they lose, they have to be prepared to accept the sanctions of the original law, because the law is everyone's contract.If everyone cannot accept the new contract, you must accept the original constraints.To put it simply, if the "challenge" fails, then you should go to jail or go to jail, and you can't throw bombs at the court because of this.This is the basic requirement for the "challenge" side.

Therefore, it takes courage to deliberately challenge the judiciary.Generally speaking, when it is time to "challenge", it is estimated that public opinion has also reached the time of "firing".If there is no basis for public opinion at all, and it is just a blind challenge, it is almost equivalent to throwing oneself into the French Open, and it is also meaningless. The most ideal situation, of course, is when a case happens to appear when the "fire" is about the same.Although it was not an intentional "challenge", all those who promote this progress will go all out to turn this accidental case into an opportunity to "challenge the judiciary".You guessed it, for radical anti-slavery, the Armstadt incident was such an opportunity.

At that time, in the North of the United States, the public opinion base for anti-slavery was fully established.Radical anti-slavery activists even declared that the time had come to rid the country of slavery once and for all.Radical anti-slavery was not a majority, but it was everywhere.Under the protection of the constitution, they established various civil groups such as the "Anti-Slavery Association", all of which have extensive connections with each other.Therefore, from the beginning of the "Amstad" incident, it was doomed not to "go through the motions" in obscurity.The blacks had just arrived in New London, and the radical anti-slavery activists in New York were immediately informed.

In less than a week, they had decided to "use" the incident to challenge slavery.Of course, the method adopted is still "judicial challenge". The mutiny on the Armstad appeared at first sight to be an obvious and grave breach of the law.Black slaves took ships and killed people.If this incident is defended as "innocence", it is not arguing that the blacks "did not seize the boat and kill people", but argue that such "boat seizure and murder" is not a crime.This is obviously a challenge to the judiciary, especially in the state of 150 years ago.

You already know that the United States at that time was still a partial slavery country, and blacks in free states did not yet have citizenship rights.As I told you before, racial prejudice was a very common phenomenon at the time.This is still a completely white society.Clearing a "black man killed white man" case is obviously a pretty serious challenge under these circumstances. Maybe I have to make it clearer to you that the word "use" here has no derogatory meaning.They intend to use the "Armstad" incident to challenge slavery, but they definitely don't mean to use black people as tools.One of the goals of their challenge is to rescue these strange black people.Perhaps it is easier to ask who these radical anti-slavery people really were.

In the movie, the two images representing radical anti-slavery are the young white lawyer who defends the black man, and a black man who participates in the rescue.In history, it can be said that there is a whole "team" involved in the "Amstad" rescue.There are a large number of people who have devoted themselves to this "challenge" without remuneration and without personal interests with great enthusiasm.Moreover, during the three-year protracted war, all costs came from private donations from Americans.Those who participated in the rescue were basically all white people.the reason is simple. Like countless such historic pushes in American history, this is a judicial battle.The people who really play a role in it are lawyers who are proficient in the law.Although the blacks in the North at that time were free and had the strongest anti-slavery motives, they had not yet grown to real strength. So, these radical anti-slavery white people, what kind of motivation are they?The answer is: religious ideals.Do you remember what I mentioned before, during the colonial period of North America, the Puritans first in New England and the Quakers in Pennsylvania, their two hundred years of anti-slavery efforts?Well, it's in one continuous line. Therefore, their starting point is to have a deep religious sympathy and compassion for the suffering caused by human inequality.That's why such a selfless and persistent struggle aroused such great enthusiasm. Let's go back to the case. At this time, we see that the system established by the U.S. Constitution is strictly working.Because, since the founding of the People's Republic of China, "challenging the judiciary" has been a normal procedure for seeking social reform within the system.Under this system, those who want to promote reform will immediately enter the procedures set by this system.The first thing they have to do is to gather a group of like-minded and high-quality lawyers, apply to the court, and volunteer to become defense lawyers for the black side of the "Armstad".Then start researching the case.So there's nothing out of the ordinary here.All that has to be done is the normal work of a lawyer. Different from the story told in the movie, in history, it was not just the lonely young lawyer who took the initiative to represent the blacks on the "Armstad" in legal defense. It was almost a team of lawyers who participated in the work. There is also a lot of data and analysis work behind the court defense.In the initial preparations before the trial, they realized that the existing slavery had not yet been broken, and therefore, under the original law, slavery was illegal in a free state.But in slave states, it is also illegal for slaves to riot and kill slave owners.Under the principle of partition in the United States, the legislative power on slavery was at the state level, and the federal courts had no right to interfere.Of course, the laws of different states cannot be applied to each other. Although Cuba is not the United States, it is a legal slave-holding country.Therefore, if we only use the laws of the free north to defend, of course we can also use the forum provided by the court defense to greatly promote the theory of abolition of slavery.However, the odds of winning the case are slim to none.This will not only affect the success of the action of "challenging justice", but the lives of these black people involved will also be in great danger. This is also the first question that lawyers must take seriously in all cases that challenge justice in American history.This is a very technical technical issue: when the old laws are still in effect, how to use the original laws to push forward in jurisprudence and gradually establish a new legislative basis. The first defense strategy decided by these lawyers was to declare that the blacks on the "Armstad" were not legal slaves, but free men.Despite all the testimonial evidence at the time, it was proved that these blacks were legal slaves.However, from the most basic information about this case, they have already caught a clue under the surface with their professional sensitivity.The first thing that aroused their doubts were the four black children under the age of twelve. They noted that Spain had signed an agreement in 1920 to ban the importation of slaves from Africa.This agreement has been signed for nineteen years since the "Armstad" incident.If these black children under the age of twelve are legal slaves, they must be the so-called "Latino blacks" born in Cuba.There is also a basic fact that all the cases they know come from the side of the Spaniards, because none of the blacks can speak Spanish, the common language of Cuba. Putting these two pieces of information together, a question arises: What is the reason why these "born in Cuba" children don't understand the local language at all? However, no matter how reasonable the doubt is, it is only a doubt, and the court pays attention to evidence.Besides, even if it could convince the court that these children were illegally imported from Africa after the "1820 Agreement".So, what about those black adults?Although it is hard to imagine that they have lived in Cuba for 19 years and have not learned Spanish, but you can't say that this is absolutely impossible. However, in any case, they found a breakthrough. Their doubts were quickly confirmed indirectly from a radical anti-slavery activist named Jenny.Jenny lives in New London where blacks are held.As soon as the matter came out, he managed to have a talk with the two Spaniards.Based on their living experience in Cuba, the two Spaniards felt that in a "white country", the case of "black slave rebellion" and "killing for goods" was so clear that the justice of white Americans was of course "helping" the white goods owner.Just waiting for a routine.So, in the conversation with Jenny, Luiz easily revealed a situation: These black people have just arrived from Africa. This circumstantial evidence gave great encouragement to the lawyers.Although evidence is still needed, the line of their defense has become very clear. There is also a plot that is not mentioned in the movie, which is also very interesting.It is Ben Dewen, the chief defense lawyer of the blacks on the "Amstad", an outstanding graduate of Yale University, and the grandson of the signer of the American Declaration of Independence.His grandfather, Roger Shemon, was not only a signer of the Declaration of Independence, but also one of the most important participants in the constitutional convention that opposed compromise with the slave states.The other two most active participants in the whole "Armstad" affair, Arthur Tappen and Louise Tappen, were two brothers.They are descendants of the famous Benjamin Franklin.louis.Tai Peng later became one of the three heads of the "Armstad" committee. In addition to their religious spirit, this group of people adhered to the founding ideals of the founding fathers when they drafted the "Declaration of Independence", which is also a very clear thread in their thinking. In any case, the immediate priority should be to try to communicate with the black people on the Armstad who they were trying to help.At the beginning, they found three blacks in New York who could still speak African languages, and asked them to go to the prison in New Haven to visit the prison together.One of them, Fan Rui, was kidnapped in Africa when he was twelve years old and sold to America. In the film, Spielberg makes this great difficulty of communication very real.But I think, in fact, their communication may be more difficult than in the movie.The distance between a black man who just came from an African tribe and has the worst experience with a white man in months, and a white lawyer from New York is as big as you want.Extreme mistrust, coupled with the lack of language.Besides, for black people, how could they figure it out, what are these two white people doing here? The three black New Yorkers brought by the lawyer did not solve any problems.The languages ​​of African tribes are too many and complex.They have been engaged for a long time, but still cannot communicate.In the end, only Fan Rui said that the only thing he could be sure of was that those children were definitely not born in Cuba, but were sold from Africa.They are already very happy with this harvest. In New York, an "Armstad" committee was formed in early September.Start writing articles in newspapers and magazines about the event and seek support.The most important task is to collect donations. In addition to supporting this lawsuit, it is also considered to provide the necessities of life for the black people on the "Armstad" in prison. From today's perspective, Tai Peng's participation in the "Armstad" committee in charge has really done a lot of practical work.For example, they placed advertisements in newspapers soliciting donations under the name "Friends of Liberty."The ad claimed that these Africans' pursuit of freedom against slavery stemmed from natural law, international law and "the cry for liberty and humanity."As soon as their ad came out, donations were sent in immediately. Another example is that under their intervention, the living conditions of blacks were actually improved very quickly.All the Negroes on the "Armstad" were divided into four quarters, except Singy, who was locked up with other serious criminals.One room for the four children, and three rooms for the rest of the blacks.They also provided clothes and other daily necessities for the blacks. The "Amstad" committee used a large part of its energy to attract people's attention to the fate of this boat of blacks.Although for a long time, due to language problems, they have not been able to get the stories told by black people themselves.However, they continue to try their best to introduce the situation of black people in various news media. They took the trouble to introduce these black people's peaceful appearance, gentle disposition, and general living conditions time and time again.Its purpose is to break the "post-slavery" statement that black tribal people are "cannibals".They want to impress readers that these black people are people like you and me, and they also have the right to pursue freedom. On the basis of the original public opinion against slavery in the north, their propaganda and various media reports made the black people on the "Armstad" get the maximum public sympathy, and Xin Gai became a legendary figure . At the same time, lawyers and the "Amstad" committee were still nervously trying to overcome one of the most difficult obstacles, that of communication and communication with black people.Because the time for the trial is approaching, this issue must be resolved anyway before then.Otherwise, it is absolutely impossible to win this lawsuit. Lawyers Ben Dewen and Tai Peng once again took the black fan Rui to visit the prison.Although Fan Rui could barely figure out a few words, he was also black, and his very existence made it possible for black people to have initial trust in white lawyers.At the same time, they obtained the consent of the prison authorities and brought in a linguistics professor from Yale University named Gibb. In the movie, perhaps in order to show the difficulty of communication between lawyers and blacks, the director arranged the image of a linguist who could not understand but refused to admit his incompetence.It's a little tease for linguists.In fact, the general image of American linguists is rather professional and dedicated.In the "Armstad" case, the language barrier between lawyers and blacks was finally broken by Professor Gibb.Although he did not understand the African dialects of these blacks, he had a linguistic approach.The method he uses is what you can see in the movie. Professor Gibb started by talking in sign language, with the simple goal of getting the blacks to teach him the sounds of a few numbers in their own language.Then, the professor traveled all over the docks and ports of New York and New Haven, and finally found two black people on a British warship who could read the numbers with the same pronunciation. The "Amstad" committee tried their best to borrow two blacks from the British warship. On September 9th, Gilbert finally brought the two "translators" into Xin Gai's cell.At first, Singai still refused to talk to visitors.After repeated explanations, the ice finally broke. The black men on the Armstar finally told their stories.The lawyer finally had the opportunity to tell Xin Gai that they were friends and they wanted to help him return to his hometown in Africa.For the first time in a long time, Xin Ge showed relief on his face, although he still couldn't understand what a lawyer was, what a court was, and why in the land of the white people far away, there were such friends who were willing to help them get back. Home. It is even more difficult for the lawyers to explain that going back to Africa is still a goal that they and the blacks must strive for together.The distance to this goal is not only a long distance geographically.This requires the cooperation of black people and the joint efforts of both parties. In the whole process of communication thereafter, the lawyers were still troubled a lot.Because they have never been able to really explain to these black Africans what kind of relationship they have.For example, in the first conversation, Singhe didn't tell the whole truth.Shinguey, in self-defense, certainly had good reason to withhold it in the conversation.However, in US litigation, this situation is very dangerous.Lawyers have been trying to make black people understand why the truth must be told to them and to the courts.As you can imagine, the language problem is basically solved, but it is much more difficult to build trust and gradually build cultural understanding. Of course we all remember that the "Armstad" is a ship from Cuba, and this is a "foreign incident".Therefore, it also brings extraordinary difficulty to this judicial challenge.Not long after the incident happened, the Spanish dynasty to which Cuba belonged immediately came to the door through diplomatic channels. At this time, the envoy of the Queen of Spain, according to the corresponding clues, found the President of the United States of course.At that time, the United States was still a very new country. It was only fifty years since the first President Washington took office in 1789.However, according to the quadrennial elections stipulated in the constitution, even though some people are re-elected during the period, the president has already changed to the eighth.Moreover, the eighth President Martin Van Buren has reached the final stage of his four-year term. From the very beginning, Spain demanded that the U.S. government immediately return the "Armstad" to Cuba in accordance with the "Pinckney Agreement" in 1795.This international agreement in 1795 has some clauses on the handling of international maritime accidents, and the reasoning behind it is very simple.That is, there are often ships from various countries entering other countries for various reasons during the voyage.This agreement is based on the principle of reciprocity, requiring the governments of all countries to return the ship in distress and all property on board to the country to which it originally belonged.In case someone sees that the foreign ships that float in are loaded with valuable goods, they swallow them.Spain's case, therefore, appears to be quite strong. So, from what angle does President Van Buren consider this event? At this time, the "Armstad" incident was already a shocking event throughout the United States.The situation has become very clear: for the United States, this is no longer a simple question of whether to return blacks on foreign ships.It was the trigger point for a long line of questions about slavery both in the North and the South.For example, should we still uphold the founding spirit of the United States of equality and freedom?Is the natural law, which represents humanity and humanity, higher than all national and state laws?etc.With the development of the "Armstad" case, the disputes between the North and the South will become increasingly serious.The future is unpredictable. Such a development prospect is obviously not what the president wants to see.First of all, it was already the autumn of 1839, and the presidential election was due to be held the following year.I once told you that the balance of power between the two sides became evenly matched due to the fact that many southern slave-holding areas joined the United States.This also means that the votes are divided into two almost equal parts. President Van Buren did not approve of slavery.However, when it comes to dealing with slavery, he will not take a radical approach.It would be to his advantage if he behaved gradually and moderately.On the one hand, because of his anti-slavery stance, he was able to win the support of the northerners; on the other hand, because he did not take radical measures immediately, he did not offend the southerners too much.When adopting this approach, the most taboo thing is to jump out of a sharp issue like a sharp knife, while clearly cutting the people into two pieces, while pointing up the knife point, forcing the president to make an either-or statement. This is the worst election year. But that's the thing. President Van Buren is a discerning person. Of course, he can see at a glance that "Armstad" is such an "unfriendly" issue.As mentioned in the movie, there is even a possibility worse than this, that is, the incident escalates to a certain level, the contradictions are irreconcilable, and as a result, a civil war is simply triggered.According to the situation in the United States at the time, this was not groundless worry.In fact, only twenty years later, the Civil War was sparked by the same slave question.Therefore, it can be said that it was almost the eve of civil war. In all fairness, the concern about a civil war cannot be said to have been motivated by President Van Buren's selfishness.The Civil War was something most people who opposed slavery at the time wanted to avoid.This is why radical anti-slavery has always been a minority.Because one of the slogans of the radicals is to simply re-establish another country that is fully in line with religious ideals, and at any cost, hoping to achieve the goal of abolishing slavery immediately.These slogans all implied the danger of secession and civil war.Faced with such sparkling slogans, most Americans are always cautious.The president is certainly no exception. In addition, the President, as the head of the executive branch of the U.S. government, is authorized to handle general foreign affairs.He does have his problems too.Diplomacy is reciprocal.When the Cuban ship arrives at your place, you hand it over happily. One day in the future, when your ship arrives at someone else’s place, won’t you be able to come back in a good mood?If you don't give it this time, even if there is a big reason, Cuba and Spain will always lose face, and if they deal with each other next time, I don't know what trouble will be added. What's more, the president also has his own difficulties.Although the federal government had very little power in those days, diplomacy was undoubtedly the job of the executive branch.Van Buren was not in favor of slavery, but slavery was legal in the South, and he didn't want to ignore some things that fell within his purview.On several occasions, ships that legally transported slaves in the American South encountered similar situations.For example, in 1830, a ship called the Comante transported some slaves from Virginia to Louisiana, a slave state that had just joined the United States.As a result, the ship was swept by the storm to the then British colony of the Bahamas.The Bahamas had abolished slavery at that time, so the British immediately released the slaves on board. Van Buren was Minister of Foreign Affairs at the time.For Southerners, it was legal for us to transport slaves in the South.Now in the event of a shipwreck, the British refused to return the slaves and released the slaves without authorization.The resulting economic losses, the federal government has to give me back, because this is the responsibility of the federal government.Van Buren also went to deal with the British at that time. Here you can also see why the United States is a loose and loose federation, but it seems very solid.At that time, apart from some large principles, there were very few laws made by the Federation.Therefore, for each state, I set the law myself, and we live our days together.But once something goes wrong, if there is any trouble with the country outside, you have to bear it for me with the federal government.This was a typical American federal situation at the time.It is unimaginable that such a situation is maintained only to uphold an ideal of partition that is synchronized with individual freedom. The seriousness of Americans for this ideal can also be seen in their attitude towards some new states that entered the United States at that time.After a period of transition, all these states became independent states and all enjoyed a high degree of autonomy.From the 13 states that founded the country back then to the 50 states today, all of them are treated equally regardless of their order.What the federal government can do is really limited. After writing this, you can also guess the attitude of the federal executive branch led by President Van Buren.They want the incident to calm down.However, they are also very clear that under the system established by the US Constitution, as long as the "Amstad" is there, things cannot calm down.Because, under this system, no one can disband civil groups like the "Amstad" committee; no one can stop lawyers from a judicial challenge; no one can interfere with the enthusiasm of the press for reporting this incident; No one can turn a court hearing into a secret black box. Therefore, the only way out is to make the "Armstad" disappear completely.Once the target disappeared, of course everyone had to scatter like birds and beasts.But how to make it disappear?This is to push the boat as far as possible under the request of Spain, and send the "Armstad" back with people and boats.Fortunately, both sides have an excellent excuse, which is the 1795 agreement.Of course, there is a price to be sent back, and the price is that the dozens of strange black people will return to the tiger's mouth.However, compared with all the domestic troubles that "Armstad" will bring to the president, this little price will be given away after closing one's eyes. Perhaps, you have also thought that if you want to promote a big social change, if you only count on a political figure in office, you will probably fail.Because such characters often have too many political interests to take into account, and are often restrained and involved in various aspects.Even though he once had passion and ideals for change, he was scattered and lost between the foresight and the foresight. Coincidentally, Fosses, the foreign minister under President Van Buren at the time, came from Georgia, an extreme slave-holding state.At that time, his own family still kept three black slaves as servants.Therefore, in terms of coordinated operations, there should be no "ideological problems" of political orientation. Radical anti-slavery activists have been tense since Spain offered to return the Armstadt.In particular, they cannot trust Foreign Minister Forsythe.They even had reliable people in the prison, in case the blacks were moved secretly, they could get the news immediately.From this arrangement, we can see that the United States 150 years ago, after all, could not compare with today in terms of institutional perfection.If it is today, either the president intends to step down immediately, or the public does not have to worry about the administrative system daring to make small moves such as secretly handing over people. This case is indeed unique.Therefore, even the federal prosecutor initially believed that, from the perspective of the criminal case, it was his responsibility to bring this case to the judicial process.However, after checking the relevant laws for a few days, he also believed that the "riot" happened on the boat of foreign citizens; when the incident happened, the boat was in the open sea, and the targets of the "riot" were also foreigners.Therefore, he does not believe that the United States courts have the authority to make a judicial decision on this matter. The "Armstad" case should actually be divided into two parts. The first part is the complaint about the ownership of the property that has already occurred, which belongs to the scope of civil litigation, and the plaintiff is the applicant of the property.This part has entered the judicial process.What caused the federal prosecutors to think was another part of the case, which was the "piracy" and "murder" caused by the riots.This part is a criminal case. According to US law, the prosecutor should be the prosecutor of the judicial system under the executive branch of the government. However, even a hundred and fifty years ago, Foreign Secretary Forsyth was very cautious about the legality of the actions of the executive branch.Even after the federal prosecutor made such a statement, Fosses still repeatedly asked him to clarify, in such a foreign-related case, according to US law, who is responsible for "Arms" between the two branches of the administration and the judiciary? The "people and goods" on the "Da" have priority control. In the end, after careful study by Foreign Minister Fosses and Federal Attorney General Grundy, finally Grundy carefully came up with a formal opinion representing the executive branch.Grundy is the Attorney General. Of course, this opinion has sufficient legal basis, and it seems that there will be no flaws. This official opinion is to insist on returning the "Armstad" and its cargo and blacks to the Spanish authorities in accordance with the "Pinckney Agreement".Attorney General Grundy said the United States must maintain its integrity in its dealings with other countries.The property on the ship is clearly in the names of Luiz and Montai, so it should not be the subject of judicial ruling by the United States.As for the lawyer's question on the "carrying of legal slave passes" held by the two Spaniards, Grundy believes that the documents carried by "Amstad" are valid official documents in Havana, and there is no legal principle to point out that The United States should conduct a judicial investigation of these documents. He also pointed out that according to international law, any country that captures a stateless pirate ship has the right to try it.But the "Armstad" was a decidedly Spanish ship, owned by the Spaniards, with official Spanish papers and a Spanish flag.Riots on board are also different from general piracy.Therefore, it is not within the scope of the "piracy case" defined by the Supreme Court. In response to the black issue that has attracted the most attention in the "Armstad" case, Attorney General Grundy pointed out that many Americans accused the slave trade of being inhumane, but whether it is international law or the laws of almost all civilized countries, there is Such behavior was once determined to be legal.Now, some individual countries such as the United States have declared the slave trade illegal, but these countries can only impose legal restrictions on their own citizens within their own territories.It has no right to take judicial action against citizens of other countries. In the United States, the law prohibiting the importation of slaves stipulates that when illegal slave ships are caught, the president must use federal government funds to send these slaves back to Africa.Therefore, at that time, many people also called on the President to order that the blacks on the "Amstad" be sent back to Africa with the expenditure of the federal budget.In response to this suggestion, Attorney General Grundy declared that the president did not have the legal authority to send these blacks back to Africa.Because the authority given by this law is only suitable for illegal slave trade within the territory of the United States. The "Armstad" case is not included here. Grundy reiterated that since slavery was legal in Cuba, the blacks were Spanish property.The United States has no right to initiate criminal proceedings against them.因此，对于行政分支，唯一的解决办法是遵从“平克尼协定”，将船上的一切交还西班牙公使。他进一步的理由是，如果把黑人交还两名西班牙货主，黑人们将可能没有机会再为自己是否具有合法的奴隶身份辩护，所以，交给西班牙公使是最合理的。这样，黑人就可以得到一个机会，站在西班牙的法庭为自己的无辜辩护。因此，下令向西班牙公使交还“阿姆斯达”号，才是总统的责任。 凡布伦总统对于“阿姆斯达”事件的决定，其出发点当然是政治上的考虑。可是，你也看到了，在这里，行政分支还是必须在法律上寻求出路。他不能仅仅依靠行政的权威，更谈不上运用总统的个人威望。因为从一开始，这一点在美国就是明确的，总统只是一个工作职位。他唯一能够借助，用以摆脱困境的，就是为行政分支的行为，找到足够的法律依据，证明采取这样一个动作是合法的。 司法部长的一番法律辩解，几乎是天衣无缝的。他非常巧妙地在根子上切断了“阿姆斯达”可能产生的争论。本来嘛，总统压根儿就没打算站在哪一边参与辩论，也没打算辩出什么正义和谬误。总统需要的是掐断这场争论。 因此，既然可能产生的争议都是在司法程序中产生的，那么要做的就是，从法律上确定美国根本无权让“阿姆斯达”案进入任何美国的司法程序。只要把这只船从司法分支那里“劫”出来，一到行政分支手里，一把推回给西班牙，就什么事儿都没有了。这样，美国总统就不至于被一条倒霉的西班牙船给逼到死角里。 所以，简单地说，就是别提这些黑人是不是来自非洲，是不是奴隶，是不是被非法贩运。更别提他们是不是杀人，是不是暴动，是不是有冤情。有天大的问题，也是人家的问题，我们管不了。人家有女王有总督有法庭。该怎么调查该怎么判决，只能由人家自己作主。更何况，有一个众所周知的“平克尼协定”摆在那里。 从这里你可以看到，激进反奴隶主义者的司法挑战确实困难重重。因为，这是一场法律上的较量。而对方站在原有法律的立场上，基础稳固。挑战者又要承认原来的法律，又要从它的基础里找出一条缝，橇下一块来。显然就要困难得多。司法部长越有理，挑战者们就越悬乎。只有真正的当事人，那些“阿姆斯达”号的黑人们，如同置身于台风眼，他们还无从了解和理解这一切，所以倒反而显得平静。 然而，司法部长的辩解并不就是完全成功的。美国自从建国，一切就都是公开化的。所以，报刊上不仅公开讨论这个案子，也对行政分支的表态品头论足。这个表态出来以后，大量的反对意见一涌而出。可是，这些意见主要还是呼吁人道，很少有从法理上去破司法部长布下的“八卦阵”的。 当时间沉淀下来以后，人们慢慢发现，行政分支的这个表态，至少在美国人所要求的最基本的情理真诚上，是有问题的。因为，行政分支似乎在要求公平地对待这些黑人，只不过是出于国际案件的特殊情况，让黑人换一个法庭而已，即从美国法庭换到古巴法庭。但是，事实上却隐瞒了他们清楚的一个实质差别。在当时的古巴，在奴隶制问题上只存在“虚假法律”，对黑人不可能有司法公正。黑人回到古巴，只可能成为古巴当局阻吓其他奴隶造反的杀一儆百的牺牲品。对于这一点的认识，后来成为凡布伦总统在民众中信誉下降的重要原因之一。 可是在一个法制国家，要和行政分支较量，还是要突破它在法律上布下的阵势。好在，仔细查看之后发现，司法部长并不是无懈可击的。他自己其实也很清楚薄弱点在哪里。那就是司法部长格伦迪，对于“阿姆斯达”案已经进入司法程序的那一部分发表的评论。 我前面已经提到过，这个案子实际上由两个性质完全不同的部分所组成的。一部分是刑事案件，按照美国法律，应该由行政分支的司法部下的检察官负责起诉。也就是说，这一部分是否起诉的权力，在司法部长的这个系统手里。当然，在新闻和民众监督下，应该起诉的案件，司法部也不敢不起诉。 然而在这个案子里，由于是个“涉外案件”，就有些复杂。似乎起诉与不起诉，是在两可之间。那么，如果司法部朝这个方向靠一靠，说是决定不起诉，民众也没有什么可说的。因为正如格伦迪已经辩解的那样，这样做还是“有法可依”的。 看上去，司法部似乎是反对把“阿姆斯达”号黑人按照可能的“海盗罪”与“谋杀罪”起诉，好象有点同情这些黑人的意思。可是，实质上，却是在防止黑人被带入美国的司法程序。因为美国的司法制度已经相当成熟。尽管这些黑人身无分文，举目无亲，可是只要你一旦让他们进入这个程序，就必须有律师，必须允许公开的法庭辩论和旁听，必须允许新闻界的采访和自由报道，必须给他们一个接受公平审理的机会。那么，总统所期盼的平息社会大辩论的要求，就再也无法达到搅恕？ 所以，司法部长的第一步，当然是先“建议”对黑人的刑事罪不予起诉。理由就是美国司法无权对一个外国刑事案起诉。司法部长所能够做到，也就是一个建议，下面的检察官还是可能根据他们的判断作决定。 但是，这个案子还有另一部分，就是它的民事诉讼的部分。按照美国法律，民事诉讼的原告，将不再是检察官，而是有民事争执的平民。提出民事起诉是公民的合法权利。也就是说，“阿姆斯达”案的民事诉讼部分，是司法部无法控制的。现在，不仅是两个西班牙人递上了财产要求，就连海防队的吉尼中尉也代表他的属下，基于“海难救助金”，对“阿姆斯达”的财产提出了分成的要求。所以，民事诉讼的司法程序的按钮已经按下。在美国的制度设计下，它会自动地，按部就班地向前走，只要原告不撤诉，谁也休想让它停下来。 因此，当司法部长格伦迪，不无心虚地借口让黑人有一个上古巴法庭为自己辩护的机会，建议法庭不要将黑人交回提出民事诉讼的西班牙原告，而是交给西班牙当局的时候，司法部长自己也知道，这是他的全部辩解里，最没有底气的一个部分。他甚至闭口不提海防队吉尼中尉对“阿姆斯达”的财产申请。是的，身为司法部长，出于对整个行政分支工作有利的考虑，他想中止这场刚刚起头的民事案件，彻底把“阿姆斯达”号从司法分支里拖出来。可是，正由于他是司法部长，他比谁都明白，这几乎已经不可能了。 现在看来，一百五十年前的美国老百姓，显然还没有象今天的美国人那样，被训练得“慧眼独具”。对总统和其行政分支的法律监督，远不如今天那样容易抓住要害。所以，尽管他们有权利在报刊上攻击司法部长的声明，可是，正如我前面提到的，大多数人只是从人道的角度进行侧面进攻。从一场“法律战”来说，还很不得要领。 只有极少数人，似乎领悟到了一些什么。他们在报纸上提出，“阿姆斯达”已经属于司法分支。作为行政分支，已经不能无视司法分支的权利，独自采取行动。只有这两句话，实际上点出了问题的要害：在政府结构中，司法是独立的，行政分支无权干涉。所以，即使总统有理由按照“平克尼协定”交还“阿姆斯达”，在司法程序结束之前，也不能有所动作。 对于黑人的律师们，形势是很清楚的。就是只能在司法程序中取胜，不能失败。因为后路已经被行政分支切断了。 我们再回到康乃迪克州。在那里，一切都在正常进行。对于刑事起诉的前期准备工作也还在进行。 这时，律师们决定先单独为三个女孩子向法庭要求一个“人身保护令”。法律规定，“人身保护令”是必须向接受该案的上一级法院提出申请。这样，接受这个“人身保护令”的要求和审查，就会把案子带到上一级法院，也就是联邦巡回法庭。 他们精心安排突出三个女孩的计划，是期望利用这几个最容易打动人心的黑人小女孩，使民众产生更大的同情心。 因为，在预期的“阿姆斯达”案正常审理中，总要出现双方在法庭上对簿公堂的局面。但是，到那时，法庭的一边是近四十名粗壮的，而且可能给人感觉是“野性”的男性黑人，而另一边却是一老一少两名文弱的西班牙白人。这样的局面会使人产生很大的错觉。公众同情的天平，会在顷刻之间倾斜。 然而，如果先让这三个黑人小女孩与两名西班牙人在法庭上遭遇，那么，奴隶制的残酷，非人性，等等，就会变得不言而喻。三名女孩顿时可以为黑人赢到更多的公众支持。“人身保护令”的提出，又会重新激起有关“奴隶具有同样的人权”，还是“奴隶制中主人对他们拥有产权”这样的辩论。 再者，如果通过这个“人身保护令”的取得，能够证明奴隶主没有拥有这三个孩子的法律依据，那么，他们就可能再进一步扩大战果，把这个结论推广到其余的黑人。 最关键的是，他们认为，如果能因此成功地在民众中唤起一个强烈的呼声：即“这些黑人也是人，而不是他人的财产”，那么，这种压力也许可以迫使凡布伦的行政当局，改变他们坚持送黑人回古巴的立场。 他们甚至还希望，如果取得这个“人身保护令”，他们就可以据此进一步争取黑人在美国的宪法权利。也许更进一步，南方的奴隶，也将可以在今后，援引同样要求“人身保护令”的方式，宣布自己的自由。 这三个黑人女孩真是击败两个西班牙人的最佳突破口。她们都还不到十二岁，只会说非洲语言，显然是刚刚来自非洲。更何况，她们一直受到最普遍的同情。为了达到最好的效果，尽管一共有四名黑人孩子，律师考虑之后，第一次“出击”还是先从女孩子开始。 律师的这一策略显然是非常成功的。案子一开始就吸引了极大的公众注意力。人们远道从波士顿，纽约这样的城市赶来参加法庭听证。旅馆预定一空，法庭挤满了人，其中不乏一些知名人士，甚至名门望族，就连一些法官们的妻子，也好奇地挤在旁听的人群里面。 这一个发生在联邦巡回法庭的，为黑人女孩要求“人身保护令”的回合，并没有在电影里出现。也许限于篇幅，导演把这一个历史情节，连同那三个黑人女孩，一起从影片中“割爱”了。这确实很可惜，因为真实的场面不用修饰，都十分具有戏剧性。 整个法庭场面的气氛和效果，对于激进的反奴隶主义者来讲，实在是太理想了。当一名警官把三名黑人小女孩带进来的时候，她们惊恐万状地一边哭一边紧紧地拉着狱警的手。狱警手里还拿着几片水果，不停地哄着她们。然后，她们的律师为她们申请一个“人身保护令”。正在准备这个刑事案的检察官并不反对，只提出要求每人一百美元的保释金，以确保如果有刑事起诉的话，她们确实会出庭作证。 这时，两个西班牙人的律师跳起来，提出反对。不同意这三个小女孩以取得“人身保护令的”方式获释。理由也很简单，包括这三名小女孩的所有“阿姆斯达”号黑人，都是他们的“财产”。 当然，你从今天的角度去看，会发现这是多么荒诞不经。但是，我们只能提醒自己，这是在一百五十年前，在这两个西班牙人所属的这个制度中，这种说法是“正常”的。然而，黑人的律师们等的就是对方律师跳起来的这一刻。因为，这种把“荒诞不经”变为“正常”的制度，在一个公开的法庭上，要把三个可怜弱者形象的小女孩，当众变成他人的“财产”，正是激进的反奴隶主义者，真正要求公众和法庭正视的具有颠覆性的问题。这也是在进行着一场司法挑战的律师们，等待的真正机会。 因为，他们的着眼点，显然不仅是在这三个女孩和“阿姆斯达”的黑人身上，他们更希望通过这个挑战，整个颠覆在美国南方还存在的一个非人道制度的法律基础。在联邦巡回法庭的汤普生法官的同意下，他们就可以得到一个重要的法庭辩论机会，他们就可以在一个活生生的案例上，让法庭和所有的人注意到他们的论点：人类行为受到的最终的审判，是依据人性与非人性的界限来判断的。一切法律都在“自然法”之下，如果一条法律是非人道的，那么，它终有一天将被废除。 只不过是第一天开庭，大量的报纸就明确指出，不论结果如何，这已经是激进反奴隶主义者们的一个重要胜利。 自建国以来，法庭就是美国人最重要一个公众论坛。律师班德文站在这个论坛上，不仅小心地避开原来法律对于黑人布下的雷阵，向人们宣布，“阿姆斯达”的黑人从来就不是奴隶，他们是被人绑架的“自由的非洲原住民”。同时，他又进一步直指事情的本质，“所有的拥有自然形式的生命，都是自由的。” 挑战司法就这样开始了。 律师们走出的第一步有没有成功呢？我得在下一封信再告诉你了。 wish it is good! Linda