|William Loney RN - Background|
Sierra Leone, April 24, 1840.
(Received August 18.)
We have the honour to acquaint your Lordship, that on the 4th of this month Her Majesty's sloop 'Wanderer,' the Hon. Joseph Denman, commanding, detained in the neighbourhood of this colony a brig called the 'Eliza Davidson,' sailing under American colours, and furnished with American papers; and that this vessel being prosecuted for slave-trading in the British and Spanish Mixed Court of Justice, was, on the 18th instant, condemned in that Court as a Spanish vessel, detained with two slaves actually on board, and equipped for the illicit traffic.
We transmit in this case, for your Lordship's information, not only our report of the proceedings and papers, but copies of the judgment delivered, and of a charter-party, or virtual bill of sale, by which we determined the property of the vessel to reside in a Spanish owner.
The existence of this remarkable document forms a new feature in cases of this description, and exhibits the Spanish slave-traders of the Havana as more embarrassed than discouraged by the difficulties which now surround them; and still tasking their invention to contrive new modes of violating the laws of their country, and new kinds of subterfuge under which to escape from the vigilance by which, in cases of Slave 'Trade, those laws are enforced.
On the present occasion, however, the contrivance resorted to is not very conspicuous by its ingenuity. Indeed a clumsier expedient, or one more sure and easy of detection, than that of covering the sale of an old vessel, sold for a large sum, by means of a deed of charter by which, for that sum, she is professedly transferred to her purchaser for a limited period on hire, can hardly be imagined. And this thin disguise is used in a case in which parties are concerned, some of whom are known for their constant connexion with slaving adventures; whilst others are the most notorious slave-traders of the whole world.
But in pronouncing upon the real character of this vessel, we felt that we could not be a moment embarrassed by the document in question, even considering it as a bona fide instrument. Even if we could suppose the sincerity of that stipulation of it which provides that at the termination of two years the vessel shall revert to her American proprietors, its existence in the deed could not be viewed as in any respect changing the position which the rest of the contract assigns to the subscribing parties during its term. This position was clearly such that by all the analogy of English commercial law, and agreeably to the plainest dictates of reason, the subscriber who had agreed to act as owner during two years must, during those two years at the least, be regarded as giving to the vessel her national character, to the full extent to which, in ordinary cases, any vessel can receive that character from the owner named in the register. It had been laid down by the most eminent legal authorities that when a ship is let, not for a single voyage only, but for a definite term of years, to be employed under the entire management of the hirer - 'the registered owner thereby divesting himself of all control and possession of the vessel for the time being in favour of another' - his liability as owner ceases for that time and passes to the charterer. It had been so ruled by the highest tribunals in cases involving liability of a pecuniary nature. And it appeared to us that if it was approved and reasonable law that under such circumstances the hirer or charterer should incur an owner's responsibility in such cases, it could not be less so that under the same circumstances he should be regarded as standing in the owner's stead in a case of illegal trading of the vessel.
Thus, either on the supposition that the vessel was really to return to her American owners, which we did not believe, or on the opinion, to which we had decidedly come, that there had been a final sale by means of the charter-party, we deemed ourselves entitled to regard the Spaniard, Teran, as the owner of this brig at the time of her detention by Her Majesty's sloop, when, as had been proved to our satisfaction, she was engaged in Slave Trade. Her nationality was therefore Spanish; and a Spanish course of trade being admitted by the witnesses in preparatory, the two circumstances conspired to justify a sentence of condemnation.
Immediately upon judgment being pronounced, three of the crew, who admitted themselves to be Englishmen, and during the progress of the trial had been detained in arrest, were brought up by the captors before the Police Court of the colony; and, after examination, were committed for trial at the Quarter Sessions on the charge of slave-trading.
We have, &c.
|N. N. MACDONALD.|
The Right Hon. Viscount Palmerston, G.C.B.,
&c. &c. &c.
Report of the Case of the Brig 'Eliza Davidson,' Alexander B. Hanna, Master.
Sierra Leone, April 24th, 1840.
IT appears that the 'Eliza Davidson,' a vessel built at New York during the year 1828, and apparently not then destined for the Slave Trade, changed her owners nearly two years ago when at Baltimore; and on that occasion procured a permanent Baltimore Register. Her owners when this was done were James Corner and James J. Corner, of Baltimore, with John J. Mattison, of the same place, who was, at the same time, Master. After this transfer she made a voyage to Cadiz; and of her subsequent proceedings nothing is known until the month of December last, when it appears that she was in the port of Havana. On the 16th of that month a charterparty, of which a copy is herewith enclosed, was concluded between the registered owners and Simon de Teran, sufficiently known as a leading partner of the house of Pedro Martinez and Company of that place; and a new American master, Alexander B. Hanna, was at the same time placed in charge of her, with a crew chiefly American and partly English. Thus commanded and manned, she was despatched to the river Gallinas documented with the following papers:
This last document is attested at Havana by the American Consul, Mr. Trist, and contains the names of 11 individuals in all; namely, 7 who are declared to be American citizens, and 4 of whose country by birth or residence it is stated that no proof has been given; the description of their persons being at the same time wholly omitted in the description column. Of these 4, three have been acknowledged to be Englishmen, and the name of the fourth is an English name.
With these papers were seven protections for the 7 Americans, several bills of lading in the Spanish language; various unimportant letters, notes, and receipts; and, finally, the vessel's log-book, in which it is recorded that she sailed from Havana on the 9th of January last, and arrived off Gallinas on the 26th of February. Between this date and that of her capture she was employed in landing her Havana cargo at the slave factory of José Alvarez on the Gallinas, and in shipping at Shebar and the Plantain Islands in this neighbourhood a cargo of rice for that person. During this interval, or from her arrival on the coast, she was visited three times by Her Majesty's cruizers; and she was finally detained by Her Majesty's sloop 'Wanderer,' on the 4th instant.
On the 8th she arrived in this harbour; and next day, on petition of the captor, the case was admitted into Court, and the monition issued.
The captors' declaration set forth that the Spanish brig 'Eliza Davidson' had been detained under American colours, having three slaves on board; and the affidavit of seizure further charged her with being equipped for the Slave Trade.
The captor then produced his witnesses in preparatory, consisting of the master and his steward; and on the 11th those persons were examined by the Acting Registrar to the following effect: -
The master deposed that he was an American citizen, born, residing, and married in the city of Baltimore; that he was placed in the command by John J. Mattison, of the same place, on the 14th of December last; that the vessel sailed under American colours, and that there were no others on board; that the crew consisted of 11 officers and mariners, exclusive of himself, seven of them Americans, two Englishmen, one an Italian, and one a Maltese - all hired and shipped by himself at Havana; that there were no passengers; that the voyage began and was to end at Havana, which was the last port of clearance; that the river Gallinas was the first place at which the vessel touched on her voyage, and that having discharged there the greater part of her cargo to José Alvarez, she was loaded by that person with a quantity of dry goods, arms, and ammunition, with which she proceeded to Shebar, where those goods were consigned to one Louis, a Frenchman, by whom 60 tons of rice were put on board in return; that she then sailed for the Plantain Islands, and received there 70 tons of rice more, the whole quantity being intended for Alvarez; that while she was at anchor off those islands on the 4th instant, her detention by the 'Wanderer' took place; that she was armed with 6 cutlasses, 12 muskets, 2 pair of pistols, and a box of ammunition, for defence against canoes, but no resistance was made to capture, nor were there any instructions for resisting or avoiding capture, or for destroying or withholding papers; that the owners of the vessel were the persons mentioned as such in the register and charter-party, "all residing and having their families at Baltimore, and known to witness as the owners from their being so mentioned in these documents; that there was no bill-of-sale; that he believed the price of the vessel was 12,000 dollars, which he considered a fair equivalent; that the laders and Havana consignees of the cargo were Simon de Teran, a Spaniard, and Charles Tyng, apparently an Englishman, both residing and carrying on business at Havana; and that he supposed those persons were likewise its owners, the consignee on the coast being José Alvarez; that the lading on the last voyage, which was from Baltimore to Cadiz, was staves, and on the present consisted of aguardente, dry goods, tobacco, and specie (240 doubloons); that the papers were fair, and, with the exception of the Havana clearance, left on shore at Gallinas, had all been delivered up, the charterparty being among the number; that the vessel was insured at Baltimore for the voyage by her owners; that with respect to her employment in trade she had usually been under the direction of Mattison, one of the owners and the late master, but on the present voyage was under that of Alvarez; and that he (the witness) corresponded with Teran, the charterer, on the concerns of the vessel and cargo.
In reply to the special interrogatory, this witness affirmed, that no slaves had been put or received on board during the voyage for the purpose of the traffic in slaves; and he denied the existence of any article of slave equipment; although he admitted that the vessel was provided with the means of carrying 2000 gallons of water.
The second witness was Charles Knoff, the steward of the vessel, one of those of whom the muster roll gives no account, but who stated himself to be an Englishman. His evidence was entirely negative respecting the main points of ownership and equipment, except that he deposed to the existence of a still greater number of water-casks than that stated by the master. But from him were obtained additional particulars, some of them of the greatest importance. He mentioned that two Spanish seamen had been taken on board at the Gallinas, and were proceeding as passengers to Havana; and with respect to the three boys libelled as slaves, he spoke to the facts connected with their embarkation and presence on board. He stated that after the discharge of part of the outward cargo at Gallinas, the shipment of some new freight, and the embarkation of the Spanish passengers, two boys came off with the master in a canoe, in which the pilot (or a person called the piloto) was accustomed to come off to the vessel, and in which the master frequently went ashore with him; and that when the brig proceeded from that river on a first visit to the Plantain Islands (a visit which the master had not mentioned), a pilot who was procured there for the Shebar, brought on board to wait upon him the third boy, who was named Caulker, and was that person's relative.
In a special examination that followed, this witness deposed that the two boys who embarked at Gallinas were obtained as he believed, from a Mr. Alvarez, and that he believed it because he heard the Master say they were from that person's house or factory. He added that they were to be carried from the coast of Africa, as he knew from having heard the Master say, when be first came on board with them, that they were his apprentices; and, subsequently, that he would 'carry them home to be with his children, provided no man-of-war troubled him about them.' The deponent knew of no other purpose for which they were to be carried away; but he further stated that some days after they were brought on board, the chief mate cautioned the master against his having anything to do with them, warning him that they would probably get him into trouble, and mentioning the case of the captain of a vessel who had had boys on board in the same way, and had got into trouble about them.
It was remarkable that at his first examination the master made no allusion to those boys, and as if fearful of embarrassing himself with the subject, even avoided mentioning the first visit made by the vessel to the Plantain Islands, when the third of them came on board with the pilot. He afterwards deposed with respect to them, that the first two, called Enjahe and Wurrah, and to whom he had given English names, were taken on board by him at the Gallinas about the beginning of March; and that, as he intended to set them ashore again, on his return from the Plantains, he did not deem it necessary to enter the circumstance in the log-book; that he had received them into the vessel for the trip to those islands, in order that they might be taught to speak Eng1ish, and wait at table, and had done so at the request of Mr. Stephen Rogers, a black man at Gallinas, a request made to him at the table of Mr. Alvarez; he added that the place on the Gallinas at which he had delivered the outward cargo to Alvarez was called Lombokorrow, and although he would not allow that he knew Alvarea to be engaged in the Slave Trade, he confessed that he thought it probable he was, because in a large building at Lombokorrow, a place at which Alvarez was a leading man, he had himself seen 30 or 40 negroes chained.
But this Lombokorrow was repeatedly and consistently declared by the two boys themselves, in reply to special interrogatories put both by the captors and the court, to be a slave-factory at which they had been detained as slaves, into which they had been sold from the interior, and from which they were resold or delivered to the master of the brig. They referred to it explicitly by the same name. Enjahe, the elder and more intelligent, stated that he was born in the Cossoo country, one day's journey from Gallinas, where he and his mother were slaves, and where they were purchased for rum, cloth, and cutlasses, by Teah, a Krooman, who took them to a place on the river called Lombokorrow, and sold them for similar articles to a white headman named Bongo; that at this place he (witness) was confined with a number of other slaves, children, men, and women, none of whom did any work, except the children, who occasionally swept their master's yard; that the children were not chained, but the men were manacled and fettered, and the women wore iron collars; that the white man, Bongo, had no other name known to him (witness), but was a Spaniard, as his house-slaves said, and that he delivered him (the deponent) to the master of the detained brig about the middle of the month of February, receiving first a great many goods from that person, which indeed were not all given for witness, but were so in part, because the entire barracoon at Lombokorrow, to which he belonged, was about to be sent away by this vessel as soon as the master should have obtained rice for them at the Shebar, as he (witness) heard Bongo say, and as was currently rumored among the other boys, his companions; and, further, because Bongo told him, after receiving the goods, that he intended to sell him to the American captain.
In most of these particulars the younger boy, Wurrah, made a very similar deposition, and declared in addition, that immediately before the man-of-war's boat boarded, he and his companions, Enjahe, and the third boy Caulker, were ordered to go out of view behind the foremast; though this statement was not confirmed by Enjahe, who described himself as having gone thither of his own accord.
Meanwhile the captors established by a survey of equipment that the vessel carried an extraordinary number of water-casks, and at the same time brought forward evidence to damage that part of the testimony of the papers and witnesses which assigned the ownership to citizens of America; and to support the allegation, which they made against it, that the charter-party was in reality a bill of sale. It was stated in this evidence, that the value of an American vessel of the size of the Eliza Davidson would not, after seven or eight years from the date of her build, be much more than one-half the sum of 8,500 dollars, which four years later had been paid by that deed, and was acknowledged to have been paid down for the mere hire of her tonnage for a period of two years; and on this part of the subject it was further elicited from the master that he was to receive his wages from the charterer Teran (or rather from the house of Pedro Martinez and Co., whom he himself described to be the real charterers); that from him in part he had his instructions relative to the vessel and her employment in trade, and that to him he was accountable for his conduct as master, all this being, indeed, expressly provided for by the charter itself.
These proceedings brought the case to the eighth day, and closed it on the part of the captors, who appeared to have early abandoned their allegation of the slavery of the third boy Caulker, embarked at the Plantain Islands. The same day, the 16th, the monition was returned duly certified by the Marshal, without any claim having been presented on the part of the alleged owners of the vessel. The master had, indeed, applied for time to bring witnesses from the Gallinas; but as he did so without being authorised as a claimant, the application could not be entertained. He also offered a protest against condemnation, but agreeably to invariable rule the court declined to receive it.
A day of trial being petitioned for, and the following day being Good Friday, it was appointed for the 18th, when the judgment of condemnation was pronounced, and the two slaves decreed to be emancipated from slavery.
|N. N. MACDONALD.|
Judgment given in the case of the Spanish Brig 'Eliza Davidson' Alexander B. Hanna, Master.
Sierra Leone, April 18, 1840.
OF the three children who have been found in this vessel the court cannot consider the two taken on board at the Gallinas in any other light than that of slaves. They were embarked by the master at the slave factory of the well-known José Alvarez, the consignee of the "Eliza Davidson,' at that river, where they made part of a barracoon, there formed for the purposes of sale and shipment. They had been sold into this factory from the interior, and they were sold from it to the master of this brig; or if no price was specially paid for them (for that point is not made clear) then they were given; and it is of course immaterial whether their transfer was made on account of a payment in merchandise or gold, or for other considerations of interest or friendship. In either case the parties transferred were dealt with as chattels, not as human beings.
These facts derived from those parties themselves are as fully proved as they can be supposed to be by the circumstantial, concurring, repeated statements of children so young, who are not aware that they can have any interest in deceiving this court.
But supposing no credence to be due to them, the undeniable fact is - requiring great explanation - that these boys were found on board a vessel in the circumstances in which this brig was placed. Whether they were previously slaves or otherwise, and whether given or sold, if they were put on board a vessel chartered by, consigned to, trading among slave-dealers, and returning to a most notorious slave-mart, in order that they might proceed with that vessel on her return voyage, it is not to be presumed, in the absence of all proof, that they were so put as free boys. What says the master himself, who, at his first examination, made no mention of them? He says "they were on board at the request of a friend of the consignee, Alvarez, for the trip made to the Plantain Islands, that they might be taught to speak the English language, and to wait at table.' But unfortunately for this explanation, in itself so lame and improbable, it is contradicted by the explicit testimony of the steward, which shows that they were in reality destined to Havana or America, and were not regarded either by the master or his chief officer otherwise than as slaves.
If they were on board in any other character - for any temporary purpose such as the master alleges - for any purpose not temporary yet lawful - for their passage as free boys to America or for their service as domestic slaves - where is the strong proof of such a fact, the burthen of which lies heavily on the defendants in this cause? Where is any passport, certificate, indenture, or other authority for receiving them on board, or any explanation of the absence of such a document, or of the omission in the vessel's log-book of all entry of so remarkable an occurrence as their embarkation? Nothing of this kind existing, they must be regarded as slaves.
The same vessel in which these slaves are found contains one undeniable article of equipment, namely, a supply of water-casks, declared by the surveyors to this court to be more than sufficient for her as a licit trader. Nothing exists to show that any bond was given for the lawful employment of those casks, in obedience to the requirement of the Treaty of 1835; and if they were merely intended to ballast the brig, nothing ought to have been neglected in the case of a vessel coming upon this coast to enable the master to establish such a fact. It is to be observed that it is by no means enough for vessels trading on those parts of the coast of Africa which are devoted to the illicit traffic, to keep themselves free from that guilt. It is their peculiar business and bounden duty sedulously to avoid every circumstance of suspicion. And surely it is incumbent upon them in a still more eminent degree to be able to show, by the most irrefragible evidence, that they have at least not passed the limits of the law in cases like that of the present vessel, in which circumstances of suspicion of every kind shall have already accumulated around them.
Those circumstances on the present occasion are to be found in the whole history of the voyage; the character of the charterers, laders and consignees; the large rice cargo; the exclusive employment of the brig in the haunts of the most notorious slave-dealers; the intimacy of her master with those persons, as stated by himself, and apparent from the papers filed in the case; and his want of openness and candour as a witness; and taken in combination they render it certain of themselves that the vessel was employed in abetting Slave Trade, if not destined, as is sufficiently probable, to convey an entire human cargo to the Havana. The facts, however, are before us of the presence of two slave children on board, and of an extraordinary equipment of water-casks; and it becomes a superfluous labour to enter upon the consideration of any further proofs of an engagement in the prohibited traffic.
But the vessel so engaged is no American vessel, as her flag and papers declare her to be, but an undoubted Spanish brig. The Havana course of trade is admitted by the master, and not denied by second witness in preparatory, the steward Knoff. The Havana laders, consignees, and supposed owners of the cargo are the same Cuba merchants, Simon de Teran and Charles Tyng, who appears so recently in this court in the same characters, in the cases of the 'Asp" and 'Lark;" and the former is not only the professed charterer, but, as appears by the tenor of the charter-party which declares him to be so, is connected with the vessel in a still more intimate relation, and is indeed virtually her owner. This extraordinary document, taken in connexion with the evidence which the captors have adduced respecting the value of American vessels, proves to demonstration that the sum which the owner, Mattison, there acknowledges to have received from Teran for the use of the vessel during two years was greatly beyond the price of a vessel of her class and age (the age being shown by her register to be not less than 12 years); and, that this high sum was given for her use only, is by the charter expressly affirmed, for the engagement to man, victual, and repair, and to pay other charges, and exercise other ordinary acts of ownership is undertaken, not by the owner but the charterer. The charter-party is therefore a virtual bill of sale; and supposing any doubt to rest on this point, still, in our opinion, the transfer to the charterer of the entire management of the vessel for two years did, de facto, transfer to that charterer the entire liability of ownership during the same period. And the charterer, Teran, being a Spaniard by allegiance and birth, and a partner in the Havana house of Martinez and Co., who, indeed, as the master more correctly declares, are the real charterers, this fact, with that of the course of trade, is sufficient to establish a Spanish character beyond doubt or cavil.
Under these circumstances, the flag and pass of America having been falsely and fraudulently assumed by this vessel, she has exposed herself to the penalties of the Treaties of 1817 and 1835, and been justifiably detained. This court, therefore, has no alternative but to pronounce her forfeiture to the two Crowns; and the 'Eliza Davidson' and her cargo are accordingly condemned as prize for having been engaged in Slave Trade, taken in such traffic by Her Majesty's sloop 'Wanderer,' the Hon. Joseph Denman commanding; the two slaves captured on board of her, Enjahe and Wurrah, being at the same time decreed to be emancipated from slavery.
THIS charter-party, made, concluded, and agreed upon, this 16th day of December, in the year 1839, between John J. Mattison, part owner, and as attorney for the other owners, of the American brig 'Eliza Davidson,' of Baltimore, of the burthen of 198 tons, or thereabouts, whereof Alexander B. Hanna is master, now lying in the harbour of Havana, of the first part, and Simon Perez de Teran, of Havana, merchant, of the second part, witnesseth that the said party of the first part, for and in consideration of the sum of 8500 dollars, paid to him by the party of the second part, the receipt of which sum is hereby acknowledged, has granted, and to freight letten, and by these presents does grant and to freight let, unto the said party of the second part, the whole tonnage of said vessel, for the term of two years from this date, to be employed by him, the said party of the second part, or by his direction, in any lawful trade permitted under the American flag. The said party of the second part engages to pay all charges of every description for the navigating of said vessel, including manning, victualling, port-charges, pilotages, and repairs: and at the expiration of the said term of two years the vessel is to return to this port, or to the port of Baltimore, and to be delivered up to the owners or their agents. The present master to remain in command of the vessel; and in case of his death, the command to devolve upon such person, being an American citizen, as he shall designate. In case no fit person can be found to take command, the vessel and her papers are to be delivered up to the Consul of the United States at the port she may be at at the time of such decease, or at the first port at which she may arrive after it shall have occurred, and so to remain, until a lawful master can be obtained. The said party of the second part hereby engages and binds himself to the party of the first part, in the penal sum of 5000 dollars, that said vessel shall not be employed in any way not permitted by the laws of the United States; and that at the expiration of the before-named period she shall be returned in the way before agreed upon.
And for the true and faithful performance of all and singular the covenants and agreements hereinbefore specified, the said parties hereby respectively bind themselves, each unto the other, the said vessel and cargo in the penal sum of 5000 dollars.
In witness whereof the parties to these presents have hereunto interchangeably set their hands and seals, the day and year first above written.
|Sealed and delivered in presence of
J. S. THRASHER.
|| SIMON PEREZ DE TERAN.
| JOHN J. MATTISON.
(An exact copy,) J. MILLER, Acting Reg.
Viscount Palmerston to Her Majesty's Commissioners,
oreign Office, September 8, 1840.
I RECEIVED your Despatch, of the 24th April, 1840, containing your Report, and other papers relative to the case of the 'Eliza Davidson,' captured under American colours, and condemned in the Mixed British and Spanish Court of Justice at Sierra Leone.
I referred your Despatch and its enclosures to Her Majesty's Advocate General, and I have now to acquaint you that he has reported his opinion, that the 'Eliza Davidson,' having been chartered for two years, at a sum equivalent to her entire value, by a Spanish subject, resident at the Havana, who by the terms of the charter-party engaged to man, victual, and repair her, and to pay other charges, and exercise other acts of ownership, may properly be considered to have been a Spanish vessel, notwithstanding that she sailed under American colours; and, as she was equipped for the Slave Trade, and had slaves actually on board at the time of her capture, the Court was justified in pronouncing a sentence of condemnation.
I am, &c.