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Very well--it amounts to this: that the Executive did not choose to hold itself responsible for that construction of the act of Congress. This appears from the appeal. What have the United States appealed from? Why, from a decree of the court, giving them precisely what they had claimed by the Disctrict Attorney. The Attorney knew that the libel grounded on the demand of the Spanish minister, (ostensibly, for I have shown that it was a falsification of the terms of that demand, by the Secretary of State,) was not sufficient to place the Africans beyond the control of the Executive, in a certain alternative, and therefore he calls upon the Court to put them in the hands of the President, to be sent to Africa--that is, to complete their own voyage.
Well, the District Court investigated the case, and dissipated entirely the pretension that these Africans could be claimed in any way as merchandise. They went the length of declaring that the only ladino on board, the boy Antonio, concerning whom there was the slightest pretext of a claim that he was a slave, should be delivered up to the Spanish consul, on behalf of the representatives of his late owner, Captain Ferrer. The United States do not appeal from that decision, and there has been no appeal, although we might have appealed with propriety. And I confess that, had I been of counsel in that state of the proceedings, I should have been much disposed to appeal, on the ground that there was no article of the treaty which has any thing to do with the case. I conceive that this part of the decree of the District Court is not warranted by any law of treaty whatever.
But I do not desire to argue that question now, for I perceive that the district judge, in giving his decision, places t partly on the ground that the boy is desirous of returning. And as volenti non fit injuria, I reconcile my mind to that part of the decision, for we could certainly have no possible motive to interfere with the wishes of the boy. If he really has the desire to return to slavery in Cuba, it would be far from my desire to interfere with his wishes, however strange and unnatural I might deem them to be. But I must, at the same time, as an individual, protest against his delivery by any compulsion, or on any ground of obligation in the treaty; for I must maintain, that there is no one of the articles in the treaty cited that has any application whatever to the case.
And now, may it please your Honors, so strange and singular is every thing that happens, connected with this most singular case,

I am informed that, after all, this boy has not been sent to Cuba, notwithstanding his anxiety to go, and the desire of the Spanish consul for his restoration, with a decree of the Court agreeable to his demand. I am informed that he has remained a whole year in prison with the Africans, and is, at this moment, in the custody of the marshal, by what warrant or process I know not, or at whose expense.
The reason for this extended analysis of the demand by the Spanish minister is, that we may be prepared to inquire what answer he ought to have received from the American Secretary. I aver, that it was the duty of the Secretary of State instantly to answer the letter, by showing the Spanish minister that all his demands were utterly inadmissible and that the government of the United States could do nothing of what he required. It could not deliver the ship to the owner, and there was no duty resting on the United States to dispose of the vessel in any such manner. And as to the demand that no salvage should be taken, the Spanish minister should have been told that it was a question depending exclusively on the determination of the courts, before whom the case was pending for trial according to law. And the Secretary ought to have shown Mr. Calderon, that the demand for a proclamation by the President of the United States, against the jurisdiction of the courts, was not only inadmissible but offensive --it was demanding what the Executive could not do, by the constitution. It would be the assumption of a control over the judiciary by the President, which would overthrow the whole fabric of the constitution ; it would violate the principles of our government generally and in every particular ; it would be against the rights of the negroes, of the citizens, and of the States.
The Secretary ought to have done this at once, without waiting to consult the President, who was then absent from the city. The claim that the negroes should be delivered was equally inadmissible with the rest; the President has no power to arrest either citizens or foreigners. But even that power is almost insignificant compared with that of sending men beyond seas to deliver them up to a foreign government. The Secretary should have called upon the Spanish ambassador to name an instance where such a demand had been made by any government of another government that was independent. He should have told him, that such a demand was treating the President of the United States, not as the