Part 13

5360. Are they universally Europeans, educated in England?--I believe every one has been educated in England, and is an European; there is one of them that was born in the West Indies, I believe, but educated in England.

5361. Mr. _Forster_.] Have the officers of the Mixed Commission the patronage of any of the appointments on the spot?--Of all.

5362. _Chairman._] Do they appoint the proctor?--The proctor petitions to be admitted; and latterly, for the last year or two that I was there, I made them undergo an examination, for I found that one or two were applying to be admitted as proctors of the court in order to escape serving on juries, and I therefore made them submit to an examination on the treaties, and on the decisions of the Mixed Courts, and it checked the practice.

5363. At what time were those charges made which are specified in Dr. Madden’s Report?--The five cases out of the nine that I have referred to occurred in 1839, the others subsequently to my leaving the colony.

5364. When were those modifications made which would affect the statement which Dr. Madden has made?--They came into effect after the five cases occurred on which there are those high charges; they came into effect in December, 1839.

5365. Previously to Dr. Madden’s visit to Sierra Leone?--Yes, some time previously.

5366. Have you any further observations to make upon Dr. Madden’s Report?--In page 35 is a passage to which I was referred at the last examination: “The intervention of the whole present establishment of marshals, collectors, surveyors, interpreters, harbour-masters, agents, storekeepers, canoe-hirers, and victuallers of captured ships’ crews, might be dispensed with without inconvenience to the public, and with some advantage to the individuals who are interested in the disposal of the effects.” A great many of those persons do not exist in connexion with our court at all.

5367. Can you state what is the real establishment connected with the adjudication of slave vessels?--There is one marshal; he is paid by fees, on the principle of the schedule that was drawn up in England for the regulation of the Vice-Admiralty Courts in the colonies, and which are very low, I think almost too low; the collector we have nothing to do with; he is the Queen’s officer: as regards the surveyors, we have two surveyors in cases of vessels which are prosecuted for equipment to examine the equipment of the vessel, and to report, and they get a fee for that examination; in cases of vessels taken full of slaves no surveyors are required; it is only in cases of vessels seized for equipment.

5368. That is an officer absolutely necessary for the ascertainment of the facts?--Yes, because we could not allow a man to give evidence in his own case upon such a point as that.

5369. What is the fee?--I think the fee is two guineas a day during his employment; and in order to obtain the services of a respectable man who will go through the disagreeable duty which is imposed upon him in examining a vessel equipped for the slave trade, overhauling her in every part, and whose testimony can be positively relied upon, I do not think that a smaller fee ought to be paid.

5370. Does the survey occupy more than one day?--If it occupies more than a day, he gets another two guineas, but I do not recollect any case of that kind.

5371. What is the interpreter?--There is one interpreter, who interprets between the witness and the registrar when the witness speaks in a foreign language, and I believe he gets 5_s._ on an examination; he is a poor man; it is very trifling.

5372. Is the harbour-master an officer of the court?--No. Agents we have none. There is no storekeeper; the marshal lands the goods, and under some peculiar circumstances, where they have to be held over for sale, they may be stored, but I think such a thing has hardly occurred in my time.

5373. Canoe-hirers, who are those?--There are canoes employed to land the cargo.

5374. That is a duty which must be discharged and paid for at the ordinary rate in the colony?--Yes.

5375. “Victuallers of captured ships’ crews,” who are those?--We have no such men; the marshal victuals the ship’s crew at the regular rate laid down, 3_s._ for the officers and 2_s._ for the men; there are generally only three persons in each case thus provided for.

5376. Is that any thing beyond the absolute expense necessary for the object?--You cannot in a colony where food is so dear lodge and feed an European in a respectable line of life for less than 3_s._ a day.

5377. Mr. _W. Patten_.] Would you recommend the uniting of any of those offices together?--The only three officers we have are the marshal, the surveyor, and the commissioner of appraisement and sale, who is not mentioned here, and their offices cannot be united.

5378. _Chairman._] Dr. Madden recommended that “the effects of the captured vessel, prior to adjudication should remain in them under the charge of the captors”?--They always do remain in the vessel; Dr. Madden mentions this as a change that ought to take place, but nobody ever thought of landing a vessel’s goods before condemnation, because if the vessel is restored she goes out with all the goods in her. He then says, “On condemnation they should be delivered over by the captors to the collector of the customs, and this part of his service be included in the remuneration of his general duties.” The court could have no control over the collector of the customs, and how he would perform the duty more cheaply than the marshal I do not know; those goods must be landed under the control of the court, and kept under the control of the court till they are sold.

5379. What are the charges on the sale which are alluded to?--The custom-house duties and the auction duty, and those already mentioned.

5380. The custom-house duties are the duties which you alluded to as having been subsequently reduced?--Yes.

5381. Which did press upon the goods in proportion to their quality?--Yes; Dr. Madden says in the last sentence, “I beg to be understood as not meaning to attribute, in the slightest degree, to these gentlemen the disadvantages of the system that is adopted for the disposal of the effects of the condemned vessel. This system has grown up to its present amount of abuse, I believe, without their sanction, and I should think, from what I have seen of these gentlemen, it exists without their approval.” It does not; if there had been any abuse I should have been responsible for it, of course, during the time that I was there; but I believe no abuse whatever existed which the court could control. In the case of translations, we had no translator till we applied to the Government, and indeed the necessity did not arise till lately, because when you could only capture vessels full of slaves, you did not require any translations; I believe there is no abuse whatever, and it certainly is not without the sanction of the court, if it exists.

5382. Viscount _Courtenay_.] Is there any storehouse belonging to the Vice-Admiralty Court, where goods, supposing them to be of a suspicious character, if landed, are kept?--There is a storehouse connected with the mixed commissions, where the coppers and shackles, and the iron fittings for the open hatchways, are lodged.

5383. Under whose charge is that?--It is in the residence of the registrar; the registrar is required to be a resident officer, on account not only of the books and papers which he has constantly under his charge, but on account of the equipments of condemned vessels, which are also kept by him.

5384. It would be, therefore, very irregular that any of those equipments should be kept in any place but under the custody of the registrar?--Certainly.

5385. Supposing this to have been stated, that a number of leg-irons and other things, which had been landed from a slave vessel condemned in the Vice-Admiralty Court, had been deposited in a public shed on the wharf, and that they had been neglected by the officer of the Vice-Admiralty Court, whose duty it was to have put them in a place of safety; if that was so, should you say that that was irregular and unusual?--It cannot happen in our court; if such a thing were to happen, the marshal would be immediately dismissed; but the thing never happens, because there is a regular system of duty; but the Vice-Admiralty Court has no office, it has no storekeeper, and no means of carrying on its duty efficiently.

5386. What would have been the regular course in such a case as that mentioned in this paper?--I do not know what course the Vice-Admiralty Court would pursue, but with us, equipment articles are landed and carried up to the registrar. There were several rooms, when I left, completely filled with these things, and occasionally, when the Government requires coppers for the use of the Liberated African Department, we hand them over to them, and they are supplied to vessels carrying over recruits to the West Indies; but in no case do the coppers from the condemned vessels go to anybody that we do not know will make a good use of them.

5387. Is the same person that is marshal of the Mixed Commission Court marshal of the Vice-Admiralty Court?--No; it is a rule that is laid down very strictly, not to allow any sort of connexion between the two courts, as it would only produce irregularity and confusion.

5388. _Chairman._] Have you any other observation to make upon Dr. Madden’s Report?--In the last sentence of his Report he says, that parties should not be allowed to become purchasers of slave ships, or the equipments of condemned slavers, unless they “enter into a bond that such ships or equipments shall not be employed in slave trade objects, on pain of incurring the penalty of fine to the amount of double the value of the property thus employed.” Now the Act of Parliament positively requires, that if any equipments are on board a vessel, a bond shall be given, and that no vessel shall be cleared out by the custom-house unless a bond is given.

5389. Is there any thing in the present state of the law which makes it illegal to sell a vessel bought at Sierra Leone immediately into the hands of a person who shall employ her in the slave trade?--Nothing whatever.

5390. Mr. _W. Patten_.] Is there not an Act of Parliament which does prevent any body knowingly dealing with a slave dealer?--Yes, there is; but the difficulty would be to prove the guilty knowledge of the fact, that the man to whom the vessel is sold intended to employ that vessel in the slave trade.

5391. Mr. _Forster_.] What Act of Parliament do you allude to when you say that there is an Act which forbids persons selling a vessel or goods to slave dealers?--The 5 Geo. 4, c. 113.

5392. Mr. _W. Patten_.] In that Act of Parliament, does the word “knowingly” apply to knowledge of the fact that the parties are slave dealers, or of the fact that the goods so sold are to be employed in the slave trade?--To the latter. The second clause of that Act declares that it shall not be lawful to ship, tranship, and so on, or to contract for the shipping or transhipping to be employed in accomplishing any of the objects or the contracts in relation to the objects, which objects and contracts have hereinbefore been declared unlawful; but by the 7th and 10th clauses penalties are imposed only upon a party upon its being shown that he “knowingly and wilfully” shipped and laded goods to be employed in the slave trade.

5393. It does not apply to his knowledge of the fact of the man being a dealer in slaves?--I am not aware that it does; a great deal may come under the general term of “aiding and abetting” the slave trade; but in all the penal clauses of that Act the words “knowingly and wilfully” are introduced.

5394. How do you account for the governor of a British colony commencing his proclamation with these words: “Whereas by the laws of Great Britain, and more particularly by the provisions of the Act of Parliament passed in the fifth year of the reign of his late Majesty George the Fourth, all British subjects are prohibited in the most express and positive terms, and under the most severe penalties, from aiding, abetting, or trading with, directly or indirectly, all or any vessels or vessel engaged, or about to be engaged, in the slave trade, or fitted with that view and purpose”?--The prohibitory clauses of the Act are very strong indeed; they would seem to comprehend every kind of dealing with slave traders; but it is the penal clauses which would prevent convictions.

5395. _Chairman._] If you could convict the party selling the vessel to the slave dealer with a guilty knowledge of the purpose to which the vessel was to be appropriated, you have in the Act of Parliament all that can be required?--Yes.

5396. Mr. _W. Patten_.] Does the same observation apply to goods?--To every part of the Act. I believe in every instance where prohibitions are given in the Act the penal clauses referring to the prohibition contain the words “knowingly and wilfully.”

5397. _Chairman._] Therefore those acts are all of them unlawful, but the difficulty is in proving the guilt?--Yes. You may possibly prove the guilty knowledge by letters found on board the vessel.

5398. If you could ascertain that any merchant at Sierra Leone sold vessels or goods to a party, knowing that such vessel was to be employed in the slave trade, he might be convicted under the Act of Parliament?--Yes; he would be prosecuted and convicted under the 5th of Geo. 4.

5399. Mr. _W. Patten_.] Should you imply that this was guilty knowledge, that the vessel should be sold to a notorious slave dealer on any part of the coast, who was perfectly known to have no legitimate traffic of his own?--That is a legal question which would be decided in the common law courts, whether a guilty knowledge might be implied from particular circumstances, though it could not be proved directly.

5400. Mr. _Forster_.] You have given an opinion upon the construction of the words “knowingly and wilfully” used in the Act of Parliament; upon what authority have you given that opinion?--The Act cannot be misunderstood; I think no person can read it without seeing the meaning of it, whether lawyer or not.

5401. To sell goods or vessels to Pedro Blanco, for example, would that, in your opinion, bring a party within the meaning of the Act?--No, not unless you could prove that he sold them knowing that they were to be applied to an unlawful purpose.

5402. _Chairman._] The difficulty, then, is not in understanding the purpose and object of the Act, but in proving the offence?--Yes; the difficulty is in proving the guilty knowledge, and that is the only difficulty.

5403. Sir _T. D. Acland_.] Was not the principal design of that Act to prevent persons from aiding in fitting up vessels for the direct and notorious purpose of engaging in the slave trade, and for no other purpose?--Yes, it was one object.

5404. Therefore, would not any person selling shackles, or any thing else that was notoriously employed in procuring slaves, or in exchange for slaves, be brought under the Act?--If you could prove that at the time he made them he contemplated that they would be employed in the slave trade, he would be brought within the purpose of the Act.

5405. If he sold shackles to vessels engaged in the slave trade?--I should think he would be brought within it then, because the guilty knowledge would be properly inferred in that case; but shackles may be made in England, and kept on board merchant vessels to be employed on the crew.

5406. Mr. _Forster_.] You do not think, then, that the intention of that Act was to prevent British subjects and British capital from being engaged in partnership, or having an interest in the slave trade itself, and nothing beyond that?--Yes, I think the intention of the Act was to prevent such engagements.

5407. Do you think that it goes beyond that?--I think that is all we require, that they should have no connexion with the traffic.

5408. How would you bring the party within that Act who sold goods, having no interest or partnership in the transaction to which they were subsequently applied?--In that case I think the Act would not reach him.

5409. What becomes, then, of the guilty knowledge of which you have spoken so much?--No guilty knowledge can be proved against the party in the case you suppose.

5410. _Chairman._] But it may exist?--Yes, it may exist; but unless you can prove it, the penalties of the Act would not reach him.

5411. Do you conceive that the act of selling a vessel or goods that may be hereafter employed, or that shall be, to the knowledge of the person selling them, employed in the slave trade, falls within the meaning of the Act, unless that person is to have a share in the profits of the transaction?--Yes, I believe it does include that; I think that it forbids aiding and assisting in every way, even as servants, or employed in boats.

5412. Mr. _Forster_.] Then you think that a British subject selling goods to Pedro Blanco, or any other slave dealer, with the impression on his mind, or, in fact, the conviction on his mind, that those goods would be employed in the slave trade, would come within the meaning of that Act?--Yes certainly; but the difficulty would be in the proof of the guilty knowledge. Such an act as that is certainly intended to come within the Act; not that I would recommend that those words, “knowingly and wilfully,” should be taken out entirely; I think it might be a dangerous thing to do so; but I am speaking of what, in my opinion, the meaning of the Act is, namely, that it is absolutely necessary in every case to prove the guilty knowledge, in order to bring the party accused within the penalties of the Act.

5413. In what way would you prove the mental impression upon the man’s mind?--There is the difficulty.

5414. Do you think that any British Act of Parliament would impose penalties for the mental impression upon a man’s mind?--I have stated that I am not prepared to say whether or not the words “knowingly and wilfully” might be advantageously omitted from the Act, but a guilty knowledge may be inferred from particular circumstances.

5415. Then you consider that that Act of Parliament is an Act against constructive slave trading?--No.

5416. _Chairman._] You consider it to be an Act against aiding and abetting the slave trade in as many ways as the Act of Parliament can reach it?--Yes; there is no Act that I ever read that is so general and comprehensive in its terms; but unfortunately it is limited, as it must be limited, in its application.

5417. Mr. _Forster_.] Can you quote the authority of any British lawyer for the opinions you have expressed with respect to the construction of that Act?--Yes, I have heard opinions expressed on the subject from the Bench at Sierra Leone repeatedly, and by educated lawyers.

5418. In the case of a British merchant selling goods to a person who was known to have no other means of gaining his livelihood, except by the slave trade, the party selling the goods would in your opinion be liable to the penalties of that Act?--It is the same thing in that case; you must prove guilty knowledge, direct or implied.

5419. In selling goods to a man who has no other means of gaining his livelihood than by applying those goods for the purposes of the slave trade, there can be no doubt of the guilty knowledge?--I should think not; but if I were a juror I should have to satisfy my own conscience that there was a guilty knowledge. I am no lawyer; this is only the opinion of a private person.

5420. Can you conceive a stronger proof of guilty knowledge than such a transaction as that would furnish?--I think I should decide that there was a guilty knowledge, taking the case supposed, that the seller knew there was no other way in which the purchaser would employ the goods sold to him than in the slave trade; if I were a juror I think I should find him guilty in that case under the Act of Parliament; I should consider the guilty knowledge to be proved.

5421. _Chairman._] You appear to be in favour of the proposal for taking bond from the person selling the vessel, that such vessel shall not be employed within a certain period in the slave trade?--That they should take bond that the vessel should not be immediately sold to a slave dealer; but the difficulty would be in following the vessel through successive transfers.

5422. Can you suggest any means of so framing that bond as to escape the difficulty which pervades the enforcing the provisions of the existing Act of Parliament, on account of the necessity of establishing guilty knowledge?--I think I could to a certain extent. The case once came before me at Sierra Leone; I was consulted by one of the officers of the Mixed Commission Court on the subject of the sale of a vessel of his; he knew perfectly well that if he had sold that vessel to a slave dealer, we should immediately dismiss him from his situation, and he came to consult me respecting the person who had offered to buy the vessel. He had inquired about him, and there was some sort of suspicion, and I told him that I could not allow him, as an officer of the court, to sell this vessel to that person, unless he took bond to a sufficient amount that the vessel should not be sold again to a slave dealer, so that if the vessel, whilst in the possession of the person to whom he sold her, should be captured, the bond should be considered as violated, and he should be liable to the penalty. But I do not think you can carry the restriction beyond the first purchaser: but if the vessel, whilst in the hands of the first purchaser, should be seized for slave dealing, the penalty of the bond might be enforced.

5423. But would you not find it difficult to make that effective, from the facility that exists for the transfer of the vessel to other parties?--Yes; I do not think the restriction could be carried beyond the first purchaser.

5424. Would reaching the first purchaser be any great additional difficulty in the way of employing the prize vessels in the slave trade?--It would in Sierra Leone be a difficulty to some small extent; because, where only one or two persons are engaged in purchasing vessels to be afterwards sold to slave dealers, it is not likely that there would be any intermediate person between the seller and the Spanish or Portuguese purchaser at Gallinas, or any slave station in the neighbourhood.

5425. Would it not be very easy to establish a system of third persons acting as a medium between the slave dealer and the purchaser, who should protect the purchaser at the prize sale from the penalties of such a bond?--It might be done; but the difficulty would in that case be, to get two men to endure the odium of such employment; the difficulty would be doubled.

5426. Could not a vessel be sold to a subordinate party at Sherboro’ or Gallinas, not the slave dealer, but the agent of the slave dealer, who might be compelled immediately to hand over the vessel to the slave dealer?--It might be done.

5427. Mr. _Forster_.] Would you propose, by bond or otherwise, to make it illegal that the purchaser of a prize vessel at Sierra Leone should sell that vessel, on her arrival in London, to the Spanish merchants Messrs. Zulueta & Co.?--No; I would not certainly render it illegal.

5428. Then that being your opinion, in what way can you imagine any restriction to be devised for the purpose of regulating the sales of the vessels after they may be purchased at Sierra Leone?--I have mentioned that the restriction could only last, in my opinion, whilst the vessel remained in the hands of the second purchaser; that is, the person who purchases her from the highest bidder at the auction; I do not think you could follow her beyond that.