[*244

used, or dealt with, as a slave or slaves; or shall, *after the said first day of January, one thousand eight hundred and twenty-five, except in such cases as are in and by this Act permitted, (d) upon the high seas, or within the jurisdiction aforesaid, knowingly and wilfully ship, embark, receive, detain, or confine, or assist in shipping, embarking, receiving, detaining, or confining on board any ship, vessel, or boat, any person or persons, for the purpose of his, her, or their being carried away, conveyed, or removed, as a slave or slaves, or for the purpose of his, her, or their being imported or brought, as a slave or slaves, into any island, colony, country, territory, or place whatsoever, or for the purpose of his, her, or their being sold, transferred, used, or dealt with, as a slave or slaves, then, and in every such case, the person or persons so offending shall be deemed and adjudged guilty of piracy, felony, and robbery, and being convicted thereof shall suffer death, without benefit of clergy, and loss of lands, goods, and chattels, as pirates, felons, and robbers upon the seas, ought to suffer."

The 1 Vict. c. 91, s. 1, recites the preceding section, and provides that, after the 1st of October 1837, no person convicted of any such offence shall suffer death, but instead thereof shall be liable to transportation(e) for life, or for any term not less than fifteen(ƒ) years, or imprisonment, with or without hard labor, in the common gaol or house of correction, for any term not exceeding three years, and the offender may be directed to be kept in solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labor, not exceeding one month at any one time, and not exceeding three months in any one year, as to the Court in its discretien shall seem meet.(g)

Sec. 10. "(Except in such special cases as are in and by this Act permitted, or otherwise provided for), (h) if any person shall deal or trade in, purchase, sell, barter, or transfer, or contract for the dealing, or trading in, purchase, sale, barter, or transfer, of slaves, or persons intended to be dealt with as slaves, or shall otherwise than aforesaid carry away or remove, or contract for the carrying away or removing of slaves, or other persons, as or in order to their being dealt with as slaves, or shall import or bring, contract for the importing or bringing, into any place whatsoever, slaves or other persons, as or in order to their being dealt with as slaves; or shall, otherwise than as aforesaid, (h) ship, tranship, embark, receive, detain, or confine on board, or contract for the shipping, transhipping, embarking, receiving, detaining, or confining on board of any ship, vessel or boat, slaves or other persons, for the purpose of their being carried away or removed, as or in order to their being dealt with as slaves, or shall ship, tranship, embark, receive, detain. or confine on board, or contract for the shipping, transhipping, embarking, receiving, detaining, or confining on board of any ship, vessel, or boat, slaves, or other persons, for the purpose of their being imported, or brought into any place *whatsover, as or in order to their being dealt with as slaves; or shall fit [*245 out, man, navigate, equip, despatch, use, employ, let, or take to freight, or on hire, or contract for the fitting out, manning, navigating, equipping, despatching, using, employing, letting, or taking to freight or hire, any ship, vessel, or boat, in order to accomplish any of the objects, or the contracts in relation to the objects, which objects and contracts have herein before been declared unlawful; or shall knowingly and wilfully lend or advance, or become security for the loan or advance, or contract for the lending or advancing, or becoming security for the loan or advance of money, goods, or effects employed or 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; or shall knowingly and wilfully become guarantee or security, or contract for the becoming guarantee or security for agents employed, or to be employed in accomplishing any of the objects, or the contracts in relation to the objects, which objects and contracts have herein before been

(d) See note (c), ante, p. 243.

(e) Penal servitude by the 20 & 21 Vict. c. 3, s. 2, ante, p. 4.

(f) Not less than seven by the 9 & 10 Vict. c. 24, s. 1; and not less than three years by the 20 & 21 Vict. c. 3, s. 2, ante, pp. 3, 4.

(g) See ss. 1 & 2 of the 1 Vict. c, 91, ante, p. 141.

(h) See note (c), ante, p. 243.

declared unlawful, or in any other manner to engage, or contract to engage, directly or indirectly therein, as a partner, agent, or otherwise, or shall knowingly and wilfully ship, tranship, lade, receive, or put on board, or contract for the shipping, transhipping, lading, receiving, or putting on board of any ship, vessel, or boat, money, goods, or effects, 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; or shall take the charge or command, or navigate, or enter and embark on board, or contract for the taking charge or command, or for the navigating, or entering and embarking on board of any ship, vessel, or boat, as captain, master, mate, surgeon, or supercargo, knowing that such ship, vessel, or boat, is actually employed, or is in the same voyage, or upon the same occasion, in respect of which they shall so take the charge or command, or navigate, or enter and embark, or contract so to do as aforesaid, intended to be employed in accomplishing any of the objects, or the contracts in relation to the objects, which objects and contracts have herein before been declared unlawful; or shall knowingly and wilfully insure, or contract for the insuring of any slaves, or any property, or other subject-matter engaged or employed in accomplishing any of the objects, or the contracts in relation to the objects, which objects and contracts have herein before been declared unlawful; or shall wilfully and fraudulently forge or counterfeit any certificate, certificate of valuation, sentence, or decree of condemnation or restitution, copy of sentence, or decree of condemnation or restitution, or any receipt (such receipts being required by this Act), or any part of such certificate, certificate of valuation, sentence or decree of condemnation or restitution, copy of sentence, or decree of condemnation or restitution, or receipt as aforesaid; or shall knowingly and wilfully utter or publish the same, knowing it to be forged or counterfeited, with intent to defraud his Majesty, his heirs or successors, or any other person or persons whatsoever, or any body politic or corporate; then and in every such case the person or persons so offending, and their procurers, counsellors, aiders, and abettors, shall be, and are hereby declared to be felons, *and shall be trans*246] ported(i) beyond seas for a term not exceeding fourteen (k) years, or shall be confined and kept to hard labor for a term not exceeding five years, nor less than three() years, at the discretion of the Court before whom such offender or offenders shall be tried and convicted."

Sec. 11. (Except in such special cases, or for such special purposes, as are in and by this Act expressly permitted), (m) if any person shall enter and embark on board, or contract for the entering and embarking on board of any ship, vessel, or boat, as petty officer, seaman, marine, or servant, or in any other capacity not hereinbefore specially mentioned, knowing that such ship, vessel, or boat, is actually employed, or is in the same voyage, or upon the same occasion, in respect of which they shall so enter and embark on board, or contract so to do as aforesaid, intended 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; then and in every such case the persons so offending, and their procurers, counsellors, aiders, and abettors, shall be, and they are hereby declared to be guilty of a misdemeanor only, and shall be punished by imprisonment for a term not exceeding two years."

Sec. 12. "Nothing in this Act contained, making piracies, felonies, robberies, and misdemeanors, of the several offences aforesaid, shall be construed to repeal, annul, or alter the provisions and enactments in this Act also contained, imposing forfeitures and penalties, or either of them upon the same offences, or to repeal, annul, or alter, the remedies given for the recovery thereof: but that the said provisions and enactments, imposing forfeitures and penalties, shall in all respects be deemed and taken to be in full force; it being the true intent and meaning of this

(i) Penal servitude by the 20 & 21 Vict. c. 3, s. 2, ante, p. 4.

(k) Not less than seven by the 9 & 10 Vict. c. 24, s. 1; and not less than three years by the 20 & 21 Vict. c. 3, s. 2, ante, pp. 3, 4. As to accessories after the fact, see ante, p. 69. (1) See 9 & 10 Vict. c. 24, s. 1, ante, p. 3, and semble, that the imprisonment may be for any time less than five years.

(m) See note (c), ante, p. 243.

Act, that the right and privilege heretofore exercised of suing in Vice-admiralty Courts for the forfeitures or penalties, shall remain in full force and effect as before the passing of this Act; and the jurisdiction of the said Vice-Admiralty Courts in all cases of forfeitures and penalties imposed by this Act is hereby established, given, ratified, and confirmed."

Sec. 40. "If any person offending as a petty officer, seaman, marine, or servant, against any of the provisions of the Act, shall, within two years after the offence committed, give information on oath before any competent magistrate, against any owner or part-owner, or any captain, master, mate, surgeon, or supercago, of any ship or vessel, who shall have committed any offence against this Act, and shall give evidence on oath against such owner, &c, before any magistrate or Court, before whom such offender may be tried; or if such person so offending shall give information to any of his Majesty's ambassadors, ministers, &c., or other agents, so that any person owning such ship or vessel or navigating or taking charge of the same, as captain, master, mate, surgeon, or *supercargo, may be apprehended, such persons, so giving information and evidence shall not be liable to [*247 any of the pains or penalties under the Act incurred in respect of his offence; and his Majesty's ambassadors, ministers, &c., are required to receive any such information, and to transmit the particulars thereof without delay, to one of his Majesty's principal secretaries of state, and to transmit copies of the same to the commanders of his Majesty's ships or vessels, then being in such port or place."

Sec. 48. "All offences against this Act which shall be committed in any country, territory, or place, other than the United Kingdom, or on the high seas, or in any port, sea, creek, or place, where the admiral has jurisdiction, and which shall be prosecuted as piracies, felonies, robberies, or misdemeanors, shall and may be inquired of, either according to the ordinary course of law, and the provisions of the 28 Hen. 8, c. 15, or according to the provisions of the 33 Hen. 8, c. 23 (repealed by 9 Geo. 4, c. 31), or according to the provisions of the 11 & 12 Will. 3, c. 7, or according to the provisions of the 46 Geo. 3, c. 54;(n) and that all persons convicted of any of the said offences, to be inquired of, tried, and determined, under and by virtue of any commission to be made and issued, according to the directions of the said Act of the 46 Geo. 3, shall be subject and liable to, and shall suffer all such and the same pains, penalties, and forfeitures, as by this Act, or any law or laws now in force, persons convicted of the same respectively would be subject and liable to, in case the same were respectively inquired of, tried, and determined, and adjudged, within this realm, by virtue of any commission. made according to the directions of the statute 28 Hen. 8, c. 15."

Sec. 42. "All offences against this Act, which shall be committed in any place where the Admiralty has not jurisdiction, and not being within the local jurisdiction of any ordinary Court of a British colony, &c, competent to try such offence, may be inquired of, tried, &c., under and by virtue of any commission to be issued, according to the directions of the 46 Geo. 3, c. 54."

66

Sec. 50. All offences committed against this Act may be inquired of, tried, determined, and dealt with, as if the same had been respectively committed within the body of the county of Middlesex."

In February 1845 the Felicidade, a Brazilian schooner, bound on a voyage from the Brazils to Africa for the purpose of bringing back a cargo of slaves, arrived off the African coast, and while she was hovering within sixteen miles of the shore, and within six degrees north latitude, was observed by Her Majesty's ship of war Wasp, stationed off the slave coast for the prevention of the slave trade, and then under the command of Captain Usher, who, upon approaching the Felicidade, manned two boats, and gave the command of them to Lieutenant Stupart, one of his officers, with orders to board the Felicidade, and if she appeared to be fitted up for the slave trade to capture her. Lieutenant Stupart, in obedience to these orders, went with the two boats to the Felicidade. Cerquiera, the captain, immediately surrendered, and he and all his crew, except Majavel and three others, were conveyed on board the Wasp. At the time of her capture the Felicidade was fitted up for the reception of a cargo of slaves, and was within sixteen miles of [*248

(n) Ante, p. 157.

the shore. The next day Captain Usher, having removed from the Felicidade the three men who had been left with Majavel, sent back Cerquiera to the Felicidade, manned her with sixteen British seamen, and placed her under the command of Lieutenant Stupart, and directed him to steer a particular course in pursuit of a vessel capable of being seen from the Wasp, although then invisible from the Felicidade. Lieutenant Stupart accordingly steered that course, and the next morning he descried the Echo, a Brazilian brigantine, commanded by Serva. He chased her, and on coming up with her the following night fired a pistol as a signal to bring to, got into the jolly-boat, and hoisted British colors. The captain of the Echo hailed the men in the boat, and asked who they were, and, upon being informed that they were English, immediately set sail. Lieutenant Stupart continued the chase, and overtook the Echo the next night within ten miles of the African coast, when and where she surrendered. The lieutenant had at that time under his command Mr. Palmer, a midshipman, and sixteen British seamen; he ordered Mr. Palmer and eight of the seamen to take charge of the Echo during the night. On Mr. Palmer going on board the Echo, he found in her Serva, Serva's nephew, twenty-five men, and a cargo of four hundred and thirty-four slaves, and by the direction of Lieutenant Stupart, the vessels being at that time close together, sent Serva, his nephew, and eleven of the crew to the Felicidade, where they remained during the night in the custody of Lieutenant Stupart. During the chase and at the time of the surrender Lieutenant Stupart wore his uniform, and at the time of the surrender and capture told Serva he was going to take them to Her Majesty's ship the Wasp, for being engaged in the slave trade. The Wasp had printed instructions on board. Lieutenant Stupart had not any printed instructions on board the Felicidade, and did not show any other authority than his uniform and the British ensign. He had, however, boarded the Echo several times before, and to Serva was well known as an officer in Her Majesty's navy. The slaves had been shipped on board the Echo at Lagos. The next morning after the capture Lieutenant Stupart took with him Serva's nephew to the Echo, and placed Mr. Palmer and nine British seamen under his command on board the Felicidade, in order that he might take charge of her, and of Serva, Cerquiera, Majavel, and several others of the Echo's crew Within an hour afterwards Serva, Majavel, and some of the rest, conspired together to kill all the English on board the Felicidade, and take her; and in pursuance of that conspiracy rose upon Mr. Palmer and his men, and after a short conflict succeeded in killing them, Majavel having in the course of that conflict stabbed and thrown overboard Mr. Palmer. Cerquiera, though solicited by Serva to join in the plot, refused to do so, and endeavored to dissuade him from carrying it into execution; and on the trial of an indictment against Serva and others engaged with him in the transaction for the murder of Mr. Palmer, at Exeter Assizes, Platt, B., held that the Felicidade was in the lawful custody of Her Majesty's officers, that all on board *249] that vessel were within Her Majesty's Admiralty jurisdiction, and that *if the prisoners plotted together to slay all the English on board and run away with the vessel, and in carrying their design into execution Majavel slew Mr. Palmer, and the others were aiding and assisting in the commission of that act, they should be found guilty of murder; and upon a case reserved it was contended on the part of the prisoners that both the Felicidade and Echo were wrongfully taken, and that the prisoners had a right to regain their freedom by any means in their power, and consequently that no felony had been committed. It was answered, on the part of the prosecution, that the Felicidade and Echo were lawfully taken under the 5 Geo. 4, c. 113, and 7 & 8 Geo. 4, c. 74, and the Portuguese and Brazilian treaties as to slave trading; and that the prisoners were in lawful custody, and the Felicidade in the lawful custody of the Queen's officers; but it was held that there was a want of jurisdiction in an English Court to try the murder committed on board the Felicidade; and if the lawful possession of that vessel by the British Crown, through its officers, would be sufficient to give jurisdiction, there was no evidence brought before the Court to show that the possession was lawful.(n) (n) Reg. v. Serva, 2 C. & K. 53 (61 E. C. L. R.); 1 D. C. C. 104, Lord Denman, C. J., and Platt, B., dissentientibus. See also the Life of Alderson, B., p. 99.

Where some counts of an indictment on the 5 Geo. 4, c. 113, s. 10, omitted the words "knowingly and wilfully," which are used in that section in describing the offences charged in those counts, it was admitted that these counts were bad.(0)

Where a count stated that the prisoners in the fourth year of Queen Victoria, at London, and within the jurisdiction of the Central Criminal Court, did illegally and feloniously man, navigate, equip, despatch, use and employ a certain ship called the Augusta, in order to accomplish a certain object, which (by the 5 Geo. 4. c. 113) was declared unlawful, viz., to deal and trade in slaves; and the three following counts only varied from the first in describing the object of the several acts charged to have been done by the prisoner differently, as in the statute; and it was objected that each count was bad as charging distinct felonies, the statute making it a felony to fit out, man, navigate, equip, despatch, use or employ any ship in order to accomplish any of the objects thereby declared unlawful, and each count charging the prisoner with having done all the acts before mentioned, each of which would have been of itself a felony, if done with the object stated in the Act; it was held that each count contained a charge of one felony only, the whole being alleged to have been done to accomplish one and the same single object, the essence of the felony consisting in using the means described in the Act to accomplish that object. It was also contended, that these counts were bad for not negativing the exceptions in the act of circumstances, which might render the transaction lawful; but it was held that these exceptions are virtually repealed by the 3 & 4 Will. 4, c. 73, s. 12, and that for this purpose the 5 Geo. 4, c. 113, s. 10, must be considered as if they had never existed; and as the offences in the indictment are charged to have been committed in the reign of her present Majesty, they must necessarily have been after the passing of the repealing Act. It was further objected, that the *indictment did not allege that the prisoner was a British subject, or that the offence was committed within Her Majesty's dominions; but it was held that, as the offence was stated in each count to have been committed at London, within the jurisdiction of the Central Criminal Court, and therefore primâ facie at least within the district mentioned in the 3 & 4 Will 4, c. 36, s. 2, the indictment did in substance allege the offence to have been committed within Her Majesty's dominions.(p)

[*250

Upon an indictment under sec. 10 for feloniously fitting out a vessel for the purpose of dealing in slaves, it was held that the provisions of the Act are not confined to acts done by British subjects in furtherance of the slave trade in England or the British colonies, but apply to acts done by British subjects in furtherance of that trade in places not part of the British dominions. And in order to conviet a party who is charged with having employed and loaded a vessel for the purpose of slave trading, it is not necessary to show that the vessel which carried out the goods was intended to be used for bringing back slaves in return; but it was sufficient if there was a slave adventure, and the vessel was in any way engaged in that adventure.(q)

Where a party residing in London was charged with having chartered a vessel, and loaded goods on board, for the purpose of slave trading, it was held that slave trading papers found on board the vessel when she was seized off the coast of Africa, but not traced in any way to the knowledge of the prisoner, were not admissible in evidence against him.(?)

The 6 & 7 Vict. c. 98, s. 1, recites sec. 2 of the 5 Geo. 4, c. 113, and enacts "that all the provisions of the said consolidated Slave Trade Act hereinbefore recited and of this present Act shall, from and after the coming into operation of this Act, be deemed to extend and apply to British subjects wheresoever residing or being, and whether within the dominions of the British Crown or of any foreign country; and all the several matters and things prohibited by the said consolidated Slave Trade Act or by this present Act, when committed by British subjects, whether within the dominions of the British Crown or in any foreign coun

(a) Reg. v. Jennings, 1 Cox C. C. 115, Wightman and Cresswell, JJ.

(p) Reg. v. Jennings, supra.

(9) Reg. v. Zulueta, 1 C. & K. 215 (47 E. C. L. R.), Maule, J., and Wightman, J. (r) Ibid.