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and converted and disposed of the slaves, goods, &c. to his own use; by means whereof the said brig was prevented from further prosecuting the said voyage, and the plaintiff deprived of great gains, which would have accrued from the slaves and goods, and from taking on board other slaves and other goods, and from carrying them to the island of Cuba: plea not guilty. At the trial at the last London sittings after Michaelmas term, it appeared that the defendant, who was a captain in the royal navy, had, on the 16th of January, 1818, off Cape St. Paul's, unlawfully taken possession of the ship of the plaintiff, a Spanish merchant, which was engaged in the slave-trade on the coast of Africa. The only question which arose, was as to the amount of damages. It occurred to the Lord Chief Justice at the trial, that the plaintiff was not entitled to recover the value of the slaves in an English Court of justice; and accordingly, he desired the jury to find their verdict separately for each part of the damage, giving to the defendant liberty to move to reduce the verdict to the smaller sum, in case the Court should agree with him on the point. The jury found a verdict for the plaintiff, damages 21,180l.; being for the deterioration of the ship's stores and goods, 3,000l., and for the supposed profit of the cargo of slaves, 18,180l. And now, Jervis moved for a rule nisi to reduce the damages to 3,000 pounds. By the 47 Geo. III. c. 36. the slave trade, and all dealings connected with it, were declared unlawful. It follows, therefore, as a consequence, that no one can be allowed to recover damages in respect of a cargo of slaves. And the 51 Geo. III. c. 23. goes still further; for it declares that trade to be contrary to the principles of justice, humanity, and sound policy. Now, it being the duty of English Courts of justice to be guided by those principles, no one, whether he be a foreigner or an Englishman, can be permitted there to claim any compensation in respect of such a traffic. The 58 Geo. III. c. 36. is, indeed, relied on by the other side; but that act, which was passed with a view of carrying into effect a treaty with Spain on this subject, ought not to affect the present question. Indeed, the fourth article of the treaty is strongly in favour of the defendant; for it provides, that the British government shall make compensation, out of a sum provided by parliament to Spanish merchants, for the seizure of their ships, which would seein to prove that, independently of that, such merchants had no other remedy. Abbott, C. J. On further consideration, it appears to me that there is no sufficient ground for reducing this verdict to the smallest sum found by the jury. Considering the very extensive language used in tire two Vol. X. G
acts of parliament to which we have been referred, I had at first thought
that it was not competent, even for a foreigner, to come into an English Court of justice, and there to recover damages for a loss sustained by him in the prosecution of a trade declared by the British legislature, in such strong language, to be unlawful. It was with that view that I directed the jury to separate the damages in this case; for it occurred to me, that though the plaintiff might not be entitled to recover for the slaves, still, inasmuch as, at all events, the defendant ought to have taken away the slaves promptly, if at all, the subsequent detention of the ship was an injury, for which the plaintiff was entitled to compensation. But I am now satisfied that the words used by the legislature, although large and extensive, can only be taken to be applicable to British subjects. By the 58 Geo. III. c. 36. it appears that a treaty had been made with Spain, for the prohibition of an important branch of the trade; and that, with regard to the remainder, special provisions had been made, and a special Court constituted for the purpose of settling the disputes which might occur. Now that shows most strongly, that but for such a treaty, the trade would have been perfectly legal in a Spaniard; and the 10th section of that act, by which a certain sum is provided, as a full compensation for all losses sustained in consequence of the seizure of vessels previously to the ratification of that treaty, seems to me to corroborate most strongly this view of the subject; for it enables the parties sued to plead that clause in bar of the action, which would obviously have been unnecessary, if under the previous acts no action could have been maintained at all. This clause, therefore, seems to me to be a legislative recognition of a foreigner's right of suit. And by the 11th and 12th sections it is provided, that all suits commenced in the Courts of Admiralty shall proceed, if commenced; and that the damages, &c. when recovered, shall be paid to the government of this country. All these clauses, taken together, appear to me to show, that what occurred to me at nisi prius, was not a sound exposition of the law. I am therefore of opinion, that the verdict for the larger sum found by the jury is right, and that we ought to refuse this rule.
Bayley, J. I do not think that there is sufficient doubt in this case, to induce us to grant a rule. A British Court of justice is always open to the subjects of all countries in amity with us, and they are entitled to compensation for any wrongful act done by a British subject to them. It is no answer to the present action to say, that it would not be maintainable by a British subject; for the only questions are, whether the *t of the defendant be wrongful, and what injury the plaintiff has sustained from it? Although the language used by the legislature in the statute referred to, is undoubtedly very strong, yet it can only apply to British subjects, and can only render the slave trade unlawful if carried on by them; it cannot apply, in any way, to a foreigner. It is true, that if this were a trade contrary to the law of nations, a foreigner could not maintain this action. But it is not; and as a Spaniard cannot be considered as bound by the acts of the British legislature prohibiting this trade, it would be unjust to deprive him of a remedy for the wrong which he has sustained. He had a legal property in the slaves, of which he has, by the defendant's act, been deprived. The 58 Geo. III. c. 36. proceeds on this principle; and the provisions referred to by my Lord Chief Justice, seem to me to be conclusive on the subject. I think, therefore, that we ought not to disturb this verdict.
Holroyd, J. However much I may regret that any damages canbe recoverable for such a subject as this, yet I think we are bound to say, that this plaintiff is entitled to them. I agree with the construction which has been put on the 58 Geo.III. c. 36.; and I think, that even independently of that act, the action would have been maintainable for the loss of the slaves.
Best, J. The statutes which have been referred to, speak in just terms of indignation of the horrible traffic in human beings; but they speak only in the name of the British nation. The declaration of the British legislature, that the slave trade is contrary to justice and humanity, cannot affect the subjects of other countries, or prevent them from carrying on this trade out of the limits of the British dominions. The assertion of a right to control the subjects of other states in this respect, would be inconsistent with that independence which we acknowledge that every foreign government possesses. If a ship be acting contrary to the general law of nations, she is thereby subject to confiscation; but it is impossible to say that the slave trade is contrary to what may be called the common law of nations. It was, until lately, carried on by all the nations of Europe. A practice so sanctioned can only be rendered illegal by the consent of all the powers. Most of the states of Christendom have now consented to the abolition of the slave trade, and concurred with us in declaring it to be unjust and inhuman. The subjects of any of these states could not, I think, maintain an action in the Courts of this country for any injury happening to them in the prosecution of this trade; but Spain has reserved to herself a right of car. rying it on in that part of the world where this transaction occurred. Her subjects could not legally be interrupted in buying slaves in that part of the globe, and have a right to appeal to the justice of this country for any injury sustained by them from such an interruption. These principles are confirmed by the decisions of the Court of Admiralty, and also by a judgment of Sir William Grant, pronounced at the Cockpit. The cases to which I allude, are, the Fortuna, the Donna Marianna, and the Diana, in the Admiralty Court; and the Amedie, before the privy council. (Dodson's Ad. Rep. 81. 91. 95.) These cases establish this rule, that ships which belong to countries that have prohibited the slave trade, are liable to capture and condemnation, if found employed in such trade; but that the subjects of countries which permit the prosecution of this trade, cannot be interrupted while carrying it on. It is clear, from these authorities, that the slave trade is not condemned by the general law of nations. The subjects of Spain have only to look to the municipal laws of their own country, and cannot be affected by any laws made by our government. The rule for reducing the damages, in this case, must therefore be refused. Rule refused.