Imatges de pàgina

The judgment of Sir William Scott was given at great length. The directors will advert to such points of it as are immediately connected with their present subject. “No doubt,” he said, “ could exist that this was a French ship, intentionally engaged in the slave trade.” But, as these were facts which were ascertained in consequence of its seizure, before the seizor could avail himself of this discovery, it was necessary to inquire whether he possessed any right of visitation and search; because, if the discovery was unlawfully produced, he could not be allowed to take advantage of the consequences of his own wrong.

The learned judge then discussed, at considerable length, the question, whether the right of search exists in time of peace. And he decided it without hesitation in the negative. “I can find,” he says, “no authority that gives the right of interruption to the navigation of States in amity, upon the high seas, excepting that which the rights of war give to both belligerents against neutrals. No nation can exercise a right of visitation and search upon the common and unappropriated parts of the sea, save only on the belligerent claim.” He admits, indeed, and with just concern, that if this right be not conceded in time of peace, it will be extremely difficult to suppress the traffic in slaves.

“The great object, therefore, ought to be to obtain the concurrence of other nations, by application, by remonstrance, by example, by every peaceable instrument which men can employ to attract the consent of men. But a nation is not justified in assuming rights that do not belong to her, merely because she means to apply them 10 a laudable purpose.

If this right,” he adds, “js imported into a state of peace, it must be done by convention; and it will then be for the prudence of States to regulate, by such con: ention, the exercise of the right, with all the softenings of which it is susceptible.

The judgment of Sir William Scott would have been equally conclusive against the legality of this seizure, even if it could have been established in evidence that France had previously prohibited the slave trade by her municipal laws. For the sake of argument, however, he assumes that the view he has taken of the subject might, in such a case, be controverted. He proceeds, therefore, to inquire how far the French law had actually abolished the slave trade at the time of this adventure. The actual state of the matter, as collected from the documents before the court, he observes is this:

"On the 27th of July, 1815, the British minister at Paris writes a note to Prince Talleyrand, then minister to the King of France, expressing a desire on the part of his court to be informed whether, under the law of France as it then stood, it was prohibited to French subjects to carry on the slave trade. The French minister informs him in answer, on the 30th of July, that the law of the Usurper on that subject was null and void, (as were all his decrees) but that his most Christian Majesty had issued directions, that, on the part of France, the traffic should cease from the present time, every where and forever.'

“In what form these directions were issued, or to whom addressed, does not appear; but, upon such authority, it must be presumed that they were actually issued. It is, however, no violation of the respect due to that authority to inquire what was the result or effect of those directions so given? what followed in obedience to them, in any public and binding form? and I fear I am compelled to say, that nothing of the kind followed; and that the directions must have slept in the portfolio of the office to which they were addressed: for it is, I think, impossible that, if any public and authoritative ordinance had followed, it could have escaped the sleepless attention of many persons in our own country, to all public foreign proceedings upon this interesting subject. Still less would it have escaped the notice of the British resident minister, who, at the distance of a year and a half, is compelled, on the part of his own Court, to express a curiosity to know what laws, ordinances, instructions, and other public and ostensible acts, had passed for the abolition of the slave trade.

“On the 30th of November, in the same year, (1815) the additional article of the definitive treaty, a very solemn instrument, most undoubtedly, is formally and publicly excuted, and it is in these terms: “The high contracting parties, sincerely desiring to give effect to the measures on which they deliberated at the Congress of Vienna, for the complete and universal abolition of the slave trade; and having, each in their respective dominions, prohibited, without restriction, their colonies and subjects from taking any part whatever in this traffic, cngage to renew conjointly their efforts, with a view to ensure final success to the principle which they proclaimed in the declaration of the 8th of February, 1815, and to concert, without loss of time, by their Ministers at the Court of London, the most effectual measures for the entire and definitive abolition of the traffic, so odious, and so highly reproved by the laws of religion and nature.'

“Now, what are the effects of this treaty? According to the view I take of it, they are two, and two only; one declaratory of a fact, the other promissory of future measures. It is to be observed, that the treaty itself does not abolish the slave trade; it does not inform the subjects that that trade is hereby abolished, and that, by virtue of the prohibitions therein contained, its subjects shall not in future carry on the trade; but the contracting parties mutually inform each other of the fact, that they have, in their respective dominions, abolished the slave trade, withoạt stating at all the mode in which that abolition had taken place.

• It next engages to take future measures for the universal abolition.

“ That, with respect to both the declaratory and promissory parts, Great Britain has acted with the optima fides, is known to the whole world, which has witnessed its domestic laws, as well as its foreign negotiations.

“I am very far from intimating that the Government of this country did not act with perfect propriety, in accepting the assurance that the French Government had actually abolished the slave trade, as a sufficient proof of the fact; but the fact is now denied by a person who has a right to deny it: for, though a French subject, he is not bound to acknowledge the existence of any law which has not publicly appeared; and the other party having taken upon himself the burthen of proving it in the course of a legal inquiry; the Court is compelled to demand and expect the ordinary evidence of such a disputed fact. It was not till the 15th of January, in the present year, (1817) that the British resident Minister applies for the communication I have described, of all laws, instructions, ordinances, and so on: he receives in return what is delivered by the French Minister as the ordinance, bearing date only one week before the requested communication, namely, the sth of January. It has been asserted, in argument, that no such ordinance has yet, up to this very hour, even appeared in any printed or public form, however much it might import both French subjects and the subjects of foreign States so to receive it.

" How the fact may be, I cannot say; but I observe it appears before me in a manuscript form; and, by inquiry at the Secretary of State's office, I find it exists there in no other plight or condition.

“ In transmitting this to the British Government, the British Minister observes, it is not the document he had reason to expect: and, certainly, with much propriety; for, how does the document answer his requisition? His requisition is for all laws, ordinances, instructions, and so forth. How does this, a simple ordinance, professing to have passed only a week before, realize the assurance given on the 30th of July, 1815, that the traffic should cease, from the present time, every where and forever?' or how does this realize the promise made in November, that measures should be taken, without loss of time, to prohibit not only French colonists, but French subjects likewise, from taking any part whatever in this traffic? this regulation in substance? Why, it is a mere prospective colonial regulation, prohibiting the importation of slaves into the French colonies from the 8th of January, 1817.

“Consistently with this declaration, even if it does exist in the form and with the force of a law, French subjects may be yet the common carriers of slaves to any foreign settlement that will admit them, and may devote their capital and their industry, unmolested by law, to the supply of any such markets.

“Supposing, however, the regulations to contain the fullest and most entire fulfilment of the engagement of France, both in time and in substance, what possible application can a prospective regulation of January, 1917, have to a transaction of March, 1816 ?

Nobody is now to be told that a modern cdict, which does not appear, cannot be presumed; and, that no penal law of any State can bind the conduct of its subjects, unless it is conveyed to their attention in a way which excludes the possibility of honest ignorance. The very production of a law professing to be enacted in the beginning of 1817, is a satisfactory proof that no such law existed in 1816, the year of this transaction. In short, the seizor has entirely failed in the task he has undertaken, in proving the existence of a prohibitory law, enacted by the legal government of France, which can be applied to the present transaction.

Papers relating to the Slave Trade. Presented to both Houses of Par

liament, by command of the Priree Regent, February, 1919.

No. }.
Extract of the Protocol of the conference between the Plenipotentiaries of
Austria, France, Great Britain, Prussia, and Russia, held at London on
the 14th December, 1817.

LORD CASTLEREAGÉ, Plenipotentiary of Great Britain.

do. of Russia. BARON HUMBOLDT,

do. of Prussia. PRINCE ESTERHAZY,

do. of Austria. Count CARAMAN, Charge des Affaires of France. The plenipotentiaries of Great Britain, Russia, Prussia, and Austria, and the Chargé des Affaires of France, having agreed to meet together for the purpose of resuming the conferences relative to the abolition of the slave trade, Lord Castlereagh presents two conventions which his government has concluded during the present year, the one with Portugal, and the other with Spain, on the subject of the abolition of the slave trade: his excellency requests to defer to another day the consideration of these two transactions, with reference to the further measures which may, under the present circumstances, be to be taken respecting this question. The two said documents are annexed to this protocol, sub litt. A and B.

A note, dated the 19th February, 1817, addressed by the Portuguese minister to the plenipotentiaries, on the question of the abolition of the slave trade, is read; their excellencies agree to take into consideration the contents thereof, as soon as the subject shall again be proceeded in by them, and they order that it may, in the mean time, be inserted in the protocol, to which it is annexed, sub liit. C. After which the sitting was adjourned.


G. DE CARAMAN. Note.-The annexes A and B to the protocol of the conference of the 4th December, 1817, (viz: the additional conventions between Great Britain, Portugal, and Spain, signed at London on the 28th July, 1817, and at Madrid on the 23d September, 1817, respectively,) have been already printed and laid before parliament.

Annex C to the protocol of the conference of the 4th December, 1817.

(Enclosed in No. 1.)

Note of the Count de Palmella to the plenipotentiaries of the five Powers.

LONDON, 19th February, 1817. The undersigned, onvoy extraordinary and minister plenipotentiary of his most faithful majesty, having received from his court the instructions requested by his predecessor, M. de Freire, upon the subject of the invitation addressed to him by the plenipotentiaries of the Powers who signed the additional article of the treaty of Paris on the 20th of November, 1815, considers it his duty to make their excellencies acquainted with the tenor thereof, being persuaded that they will find therein satisfactory proof of the plain and candid line of conduct which the king his master has adopted, from the beginning of this negotiation.

His majesty the king of Portugal, not having signed the additional article of the treaty of Paris of the 20th November, 1815, does not consider himself bound to take a part in the conferences established in London by virtue of that article; and the less so, as, at the time when the said conferences were proposed at the Congress at Vienna, the Portuguese plenipotentiárics positively refused to concur therein.

His majesty being, nevertheless, desirous of giving this further proof of his wish to co-operate with the high powers who signed the additional article, in the accomplishment of the object proclaimed in the declaration of the Congress of Vienna of the 8th February, 1815, has authorized the undersigned, notwithstanding the efforts and the sacrifices which it has already and must still cost the Brazils to accomplish it, to accept the invitation of the plenipotentiaries of those Powers who signed the above mentioned additional article, and to take part in their conferences, whenever their excellencies shall have given him the assurance that the negotiation in question will be grounded upon the following principles:

1st. That, in conformity to the solemn declaration of the Congress of Vienna, due regard shall be had, in proceeding to the abolition of the slave trade, to the interests, the customs, and even the prejudices, of the subjects of those powers which still permit this traffic.

2dly. That each of the said Powers having the right to enact the final abolition at the peried which it may judge most expedient, that period shall be fixed upon between the Powers by means of negotiation.

3dly. That the general negotiation which may entsue, shall in no way prejudice the stipulation of the 4th article of the treaty of the 22d January, 1815, between his most faithful Majesty and his Britannic Majesty, wherein it is stated, that the period when the said traffic is universally to cease and be prohibited in the Portuguese dominions, shall he fixed by a separate treaty between the two high contracting parties.

The principles thus laid down appear to the undersigned to be so clear, and so conformably to every thing which the Plenipotentiaries to whom he has the honor of addressing himself have themselves communicated to him, that he doubts not they will explictly acknowledge them in the answer, which he has been desired by the King his master to request they will favor him with, and in consequence of which he will consider himself duly authorized to accept the invitation addressed by their excellencies to his predecessor, and to take part in the negotiation proposed at the sitting of the Congress at Vienna, held on the 20th January, 1815.

The undersigned most readily avails himself of this opportunity to request their excellencies to accept the assurance of his highest consideration.

LE COMTE DE PALMELLA. to their excellencies the Plenipotentiaries of the Powers who signed the additional article of the treaty of Paris, of the 20th November, 1815.

No. 2.

Protocol of the Conference between the Plenipotentiaries of the five

Powers, of the 4th of February, 1815.


LORD CASTLEREAGH. Lord Castlereagh reads a note verbally, containing a proposition on the part of the government, the object of which is to make a convention between the powers represented by the plenipotentiaries assembled, for the purpose of abolishing illicit slave trade; and he accordingly invites his colleagues to

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