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The DoNNA MARIANNA. 1 Dodson's Rep. 91.
This was the case of a vessel seized as she was proceeding to Cape Coast for a cargo of slaves, under the Portuguese flag. It appeared in evidence, that she was originally an American vessel, had been bona fide sold to a British subject, and was now claimed as Portuguese property, on the ground that she had been since conveyed to a Portuguese merchant. The Court condemned the ship, as being a British vessel engaged in the slave trade.
Sir William Scott. “It would be a monstrous thing, where a ship, admitted to have been at one time British property, is found engaging in this traffic, to say, that, however imperfect the documentary evidence of the asserted transfer may be, and however startling the other circumstances of the case, no inquiry shall be made into the real ownership. Here are on board this vessel only papers of mere form, and which are in contradiction with each other, leaving the whole transaction of the transfer in great doubt and obscurity; and if the Court were to be prohibited, under such circumstances, from inquiry into the reality of the Portuguese title, one sees how easily the provisions of the legislature would be defeated.”
“I can have no doubt that this Court is bound judicially to consider this as a British vessel, and that this Portuguese disguise has been assumed for the mere purpose of protecting the property of British merchants in a traffic which it was not lawful for them to engage in.”
The DIANA. 1 Dodson's Rep. 95.
This was the case of a vessel, under Swedish colours, seized at Cape Mount, on the coast of Africa, on the 10th of September, 1810, by a British cruiser, and carried to Sierra Leone, where proceedings were instituted against the vessel and cargo. At the time of the seizure she had exchanged her outward cargo for 120 slaves, part of which she had received on board. An information was filed on the part of the captors, and a claim made for the ship and cargo, as the property of a subject of the King of Sweden. The vessel and cargo were condemned in the Vice-Admiralty Court at Sierra Leone, from which an appeal was prosecuted to the High Court of Admiralty.
The condemnation also took place on a principle which this Court cannot in any manner recognise, inasmuch as the sentence affirms, “ that the slave trade, from motives of humanity, hath been abolished by most civilized nations, and is not at the present time legally authorized by any.” This appears to me to be an assertion by no means sustainable. This Court is disposed to go as far in discountenancing this odious traffic, as the law of nations, and the principles recognised by English tribunals, will warrant it in doing, but beyond these principles it does not feel itself at liberty to travel. It cannot proceed on a sweeping anathema of this kind against property belonging to the subjects of foreign independent states. The position laid down in the sentence of the Court below, that the slave trade is not authorized by any civilized state, is, unfortunately, by no means correct, the contrary being notoriously the fact, that it is tolerated by some of them. This trade was at one time, we know, universally allowed by the different nations of Europe, and carried on by them to a greater or less extent, according to their respective necessities. Sweden, having but small colonial possessions, did not engage very deeply in the traffic, but she entered into it so far as her convenience required for the supply of her own colonies. The trade, which was generally allowed, has been since abolished by some particular countries; but I am yet to learn that Sweden" has prohibited its subjects from engaging in the traffic, or that she has abstained from it either in act or declaration. Our own country, it is true, has taken a more correct view of the subject, and has decreed the abolition of the slave trade, as far as British subjects are concerned; but it claims no right of enforcing its prohibition against the subjects of those states which have not adopted the same opinion with respect to the injustice and immorality of the trade. The principle which has been extracted by the Judge of the Court below, from the case of the Amedie, is the reverse of the real principle there laid down by the Superior Court, which was, that where the municipal laws of the country to which the parties belong have prohibited the trade, the tribunals of this country will hold it to be illegal, upon the ge
* The treaty of concert and subsidy between his majesty and the King of Sweden, which was signed at Stockholm on the 3d of March, 1813, has been made public since the date of this judgment. By an article of this treaty, the King of Sweden engages “to forbid and prohibit, at the period of the cession of Guadaloupe, the introduction of slaves from Africa into the said island, and the other possessions in the West Indies of his Swedish majesty, and not to permit Swedish subjects to engage in the slave trade; an engagement which (it is said) his Swedish majesty is the more willing to contract, as this traffic has never been authorized by him,” though it had never been prohibited, and, therefore, had been tolerated in practice upon the principles then generally received.
neral principles of justice and humanity, and refuse restitution of the property; but, on the other hand, though they consider the trade to be generally contrary to the principles of justice and humanity, where not tolerated by the laws of the country, they will respect the property of persons engaged in it under the sanction of the laws of their own country. The lords of appeal did not mean to set themselves up as legislators for the whole world, or presume in any manner to interfere with the commercial regulations of other states, or to lay down general principles that were to overthrow their legislative provisions with respect to the conduct of their own subjects. It is highly fit that the Judge of the Court below should be corrected in the view which he has taken of this matter, since the doctrine laid down by him in this sentence is inconsistent with the peace of this country and the rights of other states. The proceedings in this Court, as of appeal, have been commenced and carried on by both parties in the manner in which instance causes are usually conducted. A libel has been brought on the one side, to which a negative issue has been given on the other. Objections, however, have been taken to the jurisdiction, upon two grounds. In the first place it has been said, that the sentence of the Court below, condemning the property to the crown, was a prize sentence, and, consequently, that the appeal ought to have been made to the Privy Council, and not to the Instance Court of Admiralty, which is a mere municipal tribunal. It has likewise been said, that, supposing this Court to be possessed of an appellate jurisdiction, still it has no jurisdiction over the question itself, which depends altogether upon the jus gentium. But I think the proceedings of the parties have sufficiently founded the jurisdiction in the cause; and I am by no means clear that a Court of civil jurisdiction might not otherwise have adjudicated on a question of this kind, and have excluded a claim asserted to be founded on principles contrary to general justice. The general injustice of a claim may be the subject of cognizance in a municipal Court; a claim founded on piracy, or any other act which, in the general estimation of mankind, is held to be illegal and immoral, might, I presume, be rejected in any Court upon that ground alone. I am of opinion, therefore, that neither of the objections which have been taken are founded. After issue has been given here by the captors, as in an Instance Court, they cannot object to the competency of the Court to entertain the question; and I am by no means willing to put the parties to the expense and inconvenience of commencing proceedings de novo before another tribunal. On the part of the appellants it is, I think, sufficiently established in
evidence, that the ship and cargo are Swedish property; whilst, on the other side, there is nothing but a general suggestion that they may belong to American citizens. It may, perhaps, be true, that persons of that country have dishonestly engaged themselves in this traffic under colour of the Swedish flag, and the island of St. Bartholomew may be a convenient resort for such an illegal purpose; but there is nothing in this particular case which can lead to a grave suspicion, much less to a legal conclusion, that this ship is not bonæ fide the property of Swedish subjects. *** - .
The question, then, is, whether the slave trade is permitted by the law of Sweden P I have before stated, that this trade was, till of late years, generally allowed by the tastes of Europe, when, from motives of humanity, some of them were induced to abolish it, as far as their own subjects were concerned. It does not appear that any thing has been done by Sweden in the way of abjuring it, much less that she has issued any positive declaration to that effect. The Court is certainly inclined to hold, that it lies on the individual making the claim to show that the law of his country countenances the trade; but, in this particular instance, that demand appears to be satisfied; sufficiently, at least, to throw on the other party the onus of proving that it is not so allowed. The endorsement upon the pass, signed by the Swedish governor, that this vessel was “bound to the coast of Guinea, for slaves,” raises a presumption of the legality of the trade, and shifts the burthen of proof from the claimant to the captor. It is not necessary that there should be an immediate act of the Swedish government itself on board, declaring what the precise state of the law may be; the Court is bound to accept the declaration and authority of the governor, as it appears upon the pass, if not contradicted. I do not find that the authenticity of this pass is at all denied by the Judge of the Court below; he goes on the broad and sweeping ground, that all dealing in slaves is unlawful, because the trade is not authorized by any civilized state, which is certainly an incorrect and erroneous statement. If the captors had it in their power to prove that Sweden had abolished this trade, they should now have produced that proof; for they must have been aware, that the sentence of the Judge could never be supported on the principles stated by him in his judgment. The sanction of the colonial governor has been produced by the claimants; and I am clearly of opinion, under this authority standing before me, and standing uncontradicted, that Sweden has not abolished the slave trade.
The King's Advocate. From private information, I understand that Sweden never, at any time, engaged in this trade.
Court. Have you any documents to produce by which that fact can be made to appear? Can I presume, that the Swedish governor, who granted this pass, was acting contrary to the laws of his own country? It is impossible for me, upon mere private information, to say that such was the fact. If any thing can be produced in the way of evidence, it must be offered to the Court before which this case may be carried on appeal. With every disposition to sustain the disinclination which has of late been justly shown to the slave trade, I feel myself under a necessity of reversing this sentence, which appears to be founded on a false and dangerous principle, inconsistent with the rights of independent states, and, consequently, with the peace and safety of this country.
The only remaining point is, respecting these few Portuguese slaves which were found on board the ship. It appears that they belong to the master of a Portuguese schooner, which had been lying at Cape Mount, but was driven to sea by stress of weather, whilst he was on shore, and that himself and his slaves had been taken on board this ship out of charity. In the absence of all proof, I shall not presume that he had been acting in opposition to the laws of his own country, and the treaty relative to the slave trade between Great Britain and Portugal. Sentence reversed.
MADRAzo v. Willes. 5 Sergt. & Lowb. 313.
A foreigner, who is not prohibited from carrying on the slave trade by the laws of his own country, may, in a British Court of justice, recover damages sustained by him in respect of the wrongful seizure, by a British subject, of a cargo of slaves on board of a ship then employed by him in carrying on the African slave trade.
The declaration stated, that the plaintiff was a subject of the King of Spain, and that on the 12th of July, 1817, at Havana, in the island of Cuba, he was lawfully possessed of a certain brig, called, &c., and continued so possessed until the committing of the trespasses after mentioned, to wit, at, &c.; and that the said brig was, to wit, on, &c., lawfully cleared out for a certain voyage in the slave trade, to wit, from Havana to the coast of Africa, and back; and that, on the 16th of January, 1818, on the high seas, to wit, off Cape St. Paul's, on the coast of Africa, defendant, with force and arms, seized the said brig, together with her stores, &c., and 300 slaves, and also divers goods, &c., on board of the said brig, and kept and detained them for a long time,