The United States v. Libby.

The constitution and laws have contemplated that slavery is to be safely abolished in this country, by cutting off additions to it of ignorance and paganism from abroad, and elevating its victims, so as in time to be usefully returned to Africa, or made fit for emancipation here. And it is to be abolished in Africa, not only by refraining to purchase slaves there, but by civilizing her people, so as not to make prisoners of war slaves, and producing, by industry and arts, other articles with which to buy foreign merchandise.

THIS was an indictment against the defendant, belonging to Scarborough, in this State, as master of the brig Porpoise, a vessel owned by citizens of the United States. He was charged with having received on board said brig on the 8th of December, 1846, within flow of the tide, at a place called Lorenzo Marquez, on the eastern coast of Africa, a negro called Luez, not held to service by the laws of the United States or either of them, and with an intent to make him a slave.

The defendant was arraigned on this indictment at an adjourned session of the Court in August, 1845, when the indictment was found, and pleaded thereto not guilty.

The trial came on, July 7th, 1846, and after a full hearing was committed to the jury on the 16th of that month, under the following rulings, and also the following charge of the Court on the various questions of law arising in the cause.

Most of the facts will be stated in the opinions of the Court, that are necessary to understand the grounds of the law upon them.

It is sufficient to say here, that the Porpoise was proved to belong to G. Richardson, of Gorham, Maine, and to have sailed from Portland in 1842, on a freighting voyage, under the command of Libby, both being American citizens.

He was instructed when reaching Rio Janeiro, as he did in January, 1843, to report to Wright, Maxwell & Co., as consignees, with authority in them to let her for freight, or sell her at a limited price named in the instructions.

On the 14th of January, 1843, they entered into a charter party for her with one Franceco, a Brazilian, for one year,

The United States v. Libby.

and as much longer as was necessary to complete any voyage then begun, at the rate of 900 milreas (about $460) per month, and to carry no persons not free, and no goods illegal in character.

She sailed thence for the eastern coast of Africa the next month, with certain merchandise and free passengers on board, as hereafter described, and while on the coast of Africa and on her return was employed in the manner which will be stated in the opinion of the Court.

On her return she was informed against by Johnson, a free colored man on board, who had been severely punished in Africa for taking a boat ashore without leave, and after examination at Rio before the American minister, consul, and the commander of the American squadron, was sent home by the latter for a breach of the laws of the United States against the slave trade.

Haines, district attorney, for the United States. Fessenden and Deblois, for the prisoner.

WOODBURY, J., made the following rulings, and gave the following opinions in the progress of the case.

In the course of the trial the counsel for the government offered evidence in order to show Libby's knowledge and intents in this voyage, that while on the eastern coast of Africa he had received on board the Porpoise, not only the boy called Luez, and the sole one named in the indictment, but another boy by the name of Pedro, who was a slave and a brother of Luez, and at another port another boy by the name of Guilheme.

And the government proposed to prove, also, some facts which took place on a prior voyage of the defendant in the Porpoise, on the western coast of Africa, under the same general charter party, and urged the admission of all this for the purpose of showing the knowledge of Libby of the illegal objects of the hirers of the vessel, and of the slave character of the black Luez, when he was taken on board.

The United States v. Libby.

The Court ruled that any thing done by Libby, or those who chartered the vessel during the voyage, and near the time when Luez was taken on board, might be shown in order to prove his knowledge and intents, but nothing of a separate and independent character, transacted at a different place and on a different voyage, and so distant in time as not to bear on this transaction, nor he be likely to come prepared to meet or rebut it on this trial. See The People v. Hopson, 1 Denio, 574.

On the same principle, it was ruled that questions could not be asked as to what afterwards became of some of the slaves put on board a vessel called the Kentucky, that sailed to Brazil from that part of the African coast, while Libby was there, unless the government proved first some connection in interest and business between the Kentucky and Libby, or between those slaves and the receiving Luez on board the Porpoise, which is the only charge in the present indictment.

The letters of G. Richardson, the owner, as well as of his consignees, written to Libby before Luez was on board, and giving instructions as to the object and character of the voyage, though objected to by the government as not being competent evidence, were admitted as a part of the res gesta to show the design with which the vessel was sent from this country and chartered, and if believed to be written honestly and not as a cover or artifice to conceal illegal objects, the jury were instructed they should tend to rebut any improper views in the outset in this voyage of the Porpoise. But if designed to conceal illegal objects, they were an aggravation of the offence. So letters of freedom or acknowledgments of manumission to Pedro, at Lorenzo de Marks, and to Guilheme, at Inhambane, made before persons styling themselves to be notaries public of the Portuguese government with their seals annexed, were also allowed to go to the jury, though objected to by the counsel for the United States, (Peake, Ev.

The United States v. Libby.

73; 9 Mod. 66; 8 Wheat. 333; Story on Bills, § 276; 10 Pet. 170; 1 Greenl. Ev. § 4, 5; 1 Denio, 376,) and permission was given Libby to offer any evidence in his power as to their being genuine, and as to his having possession of them, believing them to be genuine when these boys were received on board. The Court said it should instruct the jury that, being under the signature and notarial seals of persons purporting to be notaries public, they might be considered primâ facie genuine, without any collateral proof. Notarial seals need not be proved, but must be judicially taken notice of. 1 Greenl. Ev. $5; 12 Mod. 315; 2 Esp. 700; 5 Cranch, 335; 6 Serg. & R. 484; 3 Wend. 173; Bayley on Bills, 515. They are also to be presumed to have been executed at the time of their date, (1 Best on Presumptions, 116,) which was before the boys came on board. The Court allowed in evidence, to corroborate them and strengthen the probability that they were executed before Libby left the coast, the facts that the paper had the royal water-marks on it, such as is used by the Portuguese public officers there; that it had also the stamps for duties which are affixed there; that it was like other paper in appearance and texture and marks, which is used there for public purposes; that the name of one of the notaries is the name of a person known to have acted as a Portuguese notary public there on other occasions; that the seal, annexed to a passport, connected with one of the documents, is the seal used by the officers of the Portuguese government there; that these papers were lodged with the regular authorities at Rio, when the Porpoise arrived there, and were forwarded here with a certificate on each, by a person purporting to be a Portuguese consul, stating that the notaries, signing and sealing, were legal officers of Portugal on the eastern coast of Africa, and were accompanied with translations of all into English, and were so forwarded under the signature of the American consul at Rio, as having been applied for by Libby, the prisoner.

The United States v. Libby.

These facts and circumstances were all permitted to go to the jury for their consideration, but under instructions given upon them in the charge, that the papers purporting to be manumissions, should have no weight, unless in the end they believed, from all the testimony, that the accused had them in his possession, or had seen and believed them to be genuine when he took Pedro and Guilheme on board.

And if he so had them, or so saw and believed, that was sufficient, whether the due execution of the papers was technically proved or not. For, if so believing, he of course did not intend to make them slaves, by so receiving and carrying them, since he carried them as free persons, and for aught which appears they still remain free.

[Both of them were then in Court, nobody claiming them as slaves since they came on board.]

After the evidence was closed, and the counsel on both sides had submitted their views to the jury, the opinion of the Court on the general principles of law arising in the case were stated, with extended references to the testimony. The law as laid down, on the main points, was as follows:

The first question, made as to the voyage by the counsel for the government, is, that it was illegal on the face of it, to carry such merchandise on freight from Rio to Africa, as was taken by the Porpoise. But the jury were instructed, that, for aught which had been proved, the voyage of the Porpoise, as planned by the owner, J. Richardson, was an ordinary one, and, on its face, not in violation of any act of Congress. It was under consignment to Wright, Maxwell, & Co., for usual employment in carrying freight, or for sale at a limited price.

Next, they were instructed, that the charter party, entered into by the consignees with Franceco for one year for nine hundred milreas, or about $450 per month, to carry any