1824), the taking or keeping slaves on board a ship is to be deemed piracy; but the offence of fitting out vessels for the slave trade, under the 10th section of that act, is not so, though it is declared to be a felony. And it is said, that, by the treaty of 1826, all Brazilian subjects who carry on the slave trade are to be deemed pirates. Now, I submit, that, if the treaty had been in terms as large as the 10th section of the stat. 5 Geo. 4, c. 113, it would not be binding on Brazilian subjects, so as to make them guilty of a crime in disobeying its provisions. Can a man be indicted for an offence against a treaty? In 1570, Philip the Second of Spain made an edict, that fraudulent insurers should be deemed pirates; and in 1580, the same prince made another edict, that all persons who cut the nets of the herring fishers should also be deemed pirates. But it could hardly be contended, that any of these persons would be liable in this country as pirates. If the sacred character of an ambassador was not noticed in an English court of justice without an act of Parliament, à fortiori it would not have been if it had depended upon a treaty only. By the first article of the instructions intended for British and Portuguese ships of war, it is declared, that "ships, on board of which no slaves shall be found, intended for purposes of traffic, shall not be detained on any account or pretence whatever." ERLE, J.-There is an additional article of the 15th of March, 1823 (h), as to vessels in which slaves "have been put on board." ALDERSON, B.-That must mean "have been put on board" in the voyage in which the vessel is captured. POLLOCK, C. B.-That would apply to cases where slaves were thrown overboard in a chase. (h) This additional article is set forth in the stat. 5 Geo. 4, c. 113. 1845. REGINA v. SERVA. 1845. REGINA v. SERVA. Manning, Serjt.-There was no evidence at the trial of any municipal law of Brazil; but it was contended, that, even supposing the "Felicidade" had been improperly taken, yet, as she was in fact captured by a British ship, the sovereignty of the Queen of England was established on board her, and all persons on board her were subject to the British crown, and also subject to the laws of England. This certainly cannot be so, for, if it were, it would follow, that, if a ship sent out from Hull by the Yorkshire clothiers were seized on the coast of Spain on an imputation of smuggling, and were taken possession of by a Spanish manof-war, every Englishman on board would immediately owe allegiance to the Queen of Spain, and be bound by the Spanish laws; and if he ventured to question the tenets of the Church of Rome, he would be liable to be lawfully burnt. I would also observe, that the book of instructions on board "The Wasp" directed the capture of ships that had no slaves on board, but the governing instructions are those contained in the stat. 5 Geo. 4, c. 113. PLATT, B.-The instructions which were on board "The Wasp" were not given in evidence. One of the witnesses said, that they had instructions on board; but it was not shewn what they were. Manning, Serjt.-If those instructions were not in evidence, they should have been put in (i). (i) The instructions on board "The Wasp," as to Brazilian vessels engaged in the African slave trade, were as follows: "Instructions for commanders of her Majesty's ships authorized to act under the convention between Great Britain and Brazil, dated the 23rd of November, 1826, for the abolition of the African slave trade. "By the Commissioners for executing the office of Lord High Admiral of the United Kingdom of Great Britain and Ireland, &c. "By the convention of the 23rd of November, 1826, between Great Britain and Brazil, (Article 1), it was declared, that, at the expiration of three years from the exchange of the ratification of that convention, the carrying on of the slave trade ALDERSON, B.-You say that the instructions which were on board "The Wasp" do not comply with the statute by Brazilian subjects, in any manner whatever, should be unlawful, and should be deemed and treated as piracy. "In carrying into effect the stipulations of that convention, the parties agreed to adopt and renew mutatis mutandis the treaty between Great Britain and Portugal, of the 22nd January, 1815, and the additional convention of the 28th July, 1817, and the several explanatory and additional articles thereto. "Your conduct in suppressing slave trade carried on in Brazilian vessels must be governed and regulated by the following instructions, which are framed in conformity with those compacts with Portugal, as altered by the convention with Brazil, for the purpose of distinctly pointing out the course which you are to pursue in carrying the last-mentioned convention into execution. "Authority to act under the Convention. — Commanders of her Majesty's ships are not authorized to search Brazilian vessels unless duly provided with the instructions for ships of war, annexed to the additional convention with Portugal, of the 28th July, 1817, and with special orders from the Admiralty to carry the same into effect; but, when furnished with these documents, they are authorized to visit, search, and detain any Brazilian vessel, which, upon reasonable ground, may be suspected of being engaged in slave trade. "Visit and Search.-The author ity to visit and search must be exercised under the following restrictions and regulations : "First, In no case is the search to be made by an officer under the rank of lieutenant of the navy. "Secondly, The right of search can only be exercised on merchant vessels. "Detention. It will be your duty, when duly authorized, to seize any Brazilian vessel found, where search is permitted, whenever it shall appear “First, That slaves, for the purpose of traffic, are or have been on board during the particular voyage on which the vessel may be captured; "Secondly, That the vessel has on board fittings or equipments for slave trade, or that other proofs are found shewing the vessel to be engaged in that trade. "Negro servants or sailors found on board Brazilian vessels must not in any case be deemed a sufficient cause of detention. "Proceedings at the Port of Adjudication. If the detained vessel be carried to a Brazilian port, the officer in charge will deliver up to the Brazilian authorities the crew of the vessel, and will inform her Majesty's minister at Rio thereof, in order that the minister may require that the treaty declaring the slave trade, when carried on by Brazilian subjects, to be pi. racy, may be carried into execution. "The rights conferred by the convention must, in every case and in all stages, be exercised in the 1845. REGINA v. SERVA. 1845. REGINA v. Serva. if they are in evidence; but, if they are not in evidence, you say that they ought to have been so, that you might shew the discrepancy. Manning, Serjt.-If the "Felicidade" was wrongfully captured, she remained a Brazilian vessel, and therefore no offence has been committed against the English laws. I now proceed to shew that the capture of "The Echo" was illegal. "The Echo" was taken by the "Felicidade" after her capture by the British; and by the treaties there is to be no capture or search except by a vessel of the royal navy, nor by any person of less rank than a lieutenant. It is contended that the "Felicidade" became a British vessel by capture; and the learned Baron said at the trial that she might be considered as a part of "The Wasp." ALDERSON, B.-If these persons had been brought on board "The Wasp," and had there conspired to kill the English, and had done so, would not that have been murder? Manning, Serjt.-The "Felicidade" was not a British ship till she was condemned. In the case of the "Melomane (k), it was held by Sir William Scott, that, where a prize was taken by a boat hired by the captain of a king's ship, and manned by a part of the ship's crew, but without a commission or authority from the Admiralty, such prize would mildest manner, and with every "Brazilian ships of war, duly merchant vessels suspected of being engaged in slave trade, as may be exercised by her Majesty's ships of war so authorized with respect to Brazilian vessels. "Given under our hands, this 12th day of June, 1844. (Signed) "G. COCKBURN. "W. H. GAGE. "By command of their Lordships, (Signed) "SIDney Herbert." (k) 5 Rob. 41. not enure to the benefit of the king's ship, and that the capture was not made by persons legally commissioned to take for their own benefit. I also objected, that the search of "The Echo" was by Mr. Palmer, who went on board her, and not by Lieut. Stupart, who remained on the deck of the other ship; and that, the search being illegal, the capture was also illegal. How could the people on board “The Echo " know that a Brazilian built vessel, built for the slave trade, belonged to the royal navy of Great Britain? The "Felicidade" was not sent after "The Echo" by "The Wasp." There is no evidence that this was the particular vessel that the "Felicidade" was sent after; and if "The Echo" was not taken by "The Wasp," she was not taken by a ship that had printed instructions on board. I say, that, if Englishmen were taken by a French vessel on suspicion of smuggling in France, and were under duress, they would, if wrongfully taken, have a right to liberate themselves, and not wait for liberation by the law of the foreign country; and they would also have a right to retake the property of which they had been wrongfully deprived. I submit, therefore, that, as Majaval had a right to liberate himself and retake his ship, the other prisoners had also a right to rise, because they were wrongfully taken; and that they also had a right to assist Majaval to retake his ship; it being clear that no means short of what they used would have effected their purposes; and they were not bound to wait for the decision of a court at Sierra Leone. ALDERSON, B.-It would be difficult to shew that it was necessary to murder every Englishman on board. It is not so found; and it is not even found that it was necessary to kill Mr. Palmer. Manning, Serjt.-There was no way for these persons to obtain their liberty at the moment, except by what they did. No excess of violence is shewn; and it was done over and over again during the war, and was commended. VOL. II. F N. P. 1845. REGINA v. SERVA. |