صور الصفحة
النشر الإلكتروني

fied the fears which we have reason to think the authors of it originally entertained. It could scarcely be expected, that the distinction between an apprentice and a slave would be much regarded in colonies which had shown such an inveterate aversion to the whole system of which this formed a part. Yet with all the assistance of experience, it would probably perplex the best informed friend of the abolition even now to suggest any scheme to which the objections would not have been yet more formidable. The means which have lately been adopted for investigating the abuses of the master's power over his apprentices, we may hereafter explain.

A second great object for which provision was to be made, was the encouragement of seizures. The ordinary inducement of confiscating the captured property, for the benefit of those by whom it was seized, being inapplicable to this case, parliament, with that liberality which is not merely consistent with an enlarged economy, but even essential to it, provided a scale of very considerable bounties to be paid to the captors or seizing officers, and to the governors of colonies in which any seizure and condemnation might take place.

A third difficulty in framing the Abolition Act, was to make due provision for the execution of it in colonies where the law itself was in the highest degree unpopular. For this purpose, it was declared that all forfeitures might be prosecuted and recovered in the colonies in the same manner as offences against the laws of trade were proceeded against under the statute 4 Geo. 3. c. 15. The statute thus referred to gave the informer or prosecutor the right of proceeding, at his election, either in the courts of Admiralty, or in the courts of record in the colonies, and therefore relieved him from the risk to which the prejudices of a colonial jury might expose him.

The penal sanctions provided by the two preceding statutes, consisted in the forfeiture of property and direct pecuniary penalties. So long as England continued the great emporium of the slave trade, and even while the memory of her participation in it was yet recent, any man who had proposed to restrain this offence by ignominious punishment would have been regarded as mad. Such is the effect of self-love in rendering us unable to perceive the enormity of any crimes which we habitually commit. But, in the short space of four years after the abandonment of the trade, juster views of its real character were generally diffused, and men were now prepared to reprobate as infamous a system which had for many preceding years been represented as a main pillar of the commercial greatness of the country. The Slave Trade Felony Act was passed almost by acclamation.

This statute (51 Geo. III. c. 23.) declared all persons guilty of felony who should be convicted of any of the following offences; viz. the removing from any place whatsoever of slaves, or of persons intended to be dealt with as slaves, into any place whatever; the embarkation or confinement on shipboard of any persons, with a view to their being removed or dealt with as slaves; the employment or the letting or taking to freight of ships to be used in carrying or importing slaves; the fitting out, or embarking on board any such ship in the capacity of captain, mate, supercargo, or surgeon, with knowledge that the ship was to be employed in the carriage or importation of slaves.

The following offences were by the same act declared misdemeanors navigating or embarking on board a ship, used or intended to be used in the carriage of slaves, in the capacity of a petty officer, a servant or seaman, and the underwriting or effecting insurances on ships or goods, or on the freight of any ship so employed. In each of these cases it was essential to the crime, that the party accused should have known the purpose of the voyage,

It was too obvious to escape the most cursory attention, that the execution of this act would be attended with great difficulties in the colonies where the offence would probably be committed.. It was therefore provided, that all offences should be inquired of, either according to the ordinary course of law, and the provisions of the "Act for Pirates" passed in the 28th year of Henry VIII, or according to the provisions of an act of the 33d of the same reign, or according to those of a statute passed in the 11th and 12th years of King William the Third.

As this enactment has given rise to much confusion in the administration of the law, and as the subject itself is somewhat intricate, it will not be inconvenient to give a short explanation of the statutes by which the trial of offences against the abolition acts is regulated.

In ancient times all crimes committed on the high seas, or in havens or estuaries of the sea, were considered as falling exclusively under the jurisdiction of the Lord Admiral. Offenders were prosecuted before the commissioners of this great officer of state, who proceeded according to the rules of the civil law. It was a settled maxim of this jurisprudence, that no man could be capitally punished, except upon a plena probatio; i. e. either the confession of the accused party, or the concurrent testimony of two eye-witnesses of the crime. But as it was frequently difficult to obtain proof of this nature, an act was passed in the year 15:6, (28 H. VIII. c. 15.) by which it was provided, that crimes committed within the jurisdiction of the Lord Admiral might be tried according to the


common course of the law of England, which adınits of indirect or circumstantial evidence. As, however, the common law required that the criminals should be tried in the shire in which their offences had been committed; and as crimes committed within the admiral's jurisdiction could not be referred to any particular county, the statute further declared that the trial might be held in such place within the realm of England as the king might appoint. A commission ascertaining this place, was to issue under the great seal directed by the admiral or his deputy, and three or four such other substantial persons as the lord chancellor of England for the time being should name, requiring them to hear and determine the alleged offences.

Five years after this statute had been passed, another act was made (33 H. VIII. c. 23.) which enabled the king to issue commissions for the speedy trial of offenders who might have been examined before his council, or any three of them, and whom the council "should think to be vehemently suspected" of any treason, misprision of treason, or murder. These offenders, whether their crimes were committed within or without the king's dominions, were to be tried in such place as should be limited by the commission, the opposite rule of the common law of England being in this instance also subverted. The difficulty of procuring indictments of state offenders, appears to have been the real inducement to this act.

For more than one hundred and fifty years from the date of this enactment, all crimes committed by English subjects on the high seas were tried under the one or the other of these acts; but in the reign of William III. with the extended navigation of England, a race of buccaniers and pirates had grown up, whose offences were committed upon the seas in very remote parts of the world. These criminals, according to the then state of the law, could be tried only by being brought to England; for the statutes of Henry VIII. had either abrogated the authority of the Lord Admiral, or caused it to fall into total disuse. The consequence was, that the pirates who infested the shores of South America and of India usually escaped punishment. The remedy for this mischief was provided by an act passed in the year 1700 (11 and 12 William III. c. 7). This statute declared, that all piracies, felonies, and robberies, committed within the jurisdiction of the admiral, might be tried at any place either at sea or on land in any of the colonies, which should be appointed by a commission to be issued for that purpose under the great seal of England, or under the seal of the Admiralty. The commissioners were to be seven in number, and their proceedings were to be regulated by the civil law. As at this period the colonists derived


material advantages from their intercourse with the buccaniers, and were not likely to administer the law with much rigour against them, the act declared, that either the commissioners under the statute of Henry VIII. (proceeding in England and according to the laws of the realm), or the commissioners under that act (proceeding as we have seen according to the civil law), should have the sole authority of trying the before-mentioned crimes and offences. The criminals in the one case were to be sent into England to be tried there: in the other case they might be proceeded against in the colonies; but in no case could they be tried by the ordinary colonial courts of criminal justice.

We conceive that when the slave trade felony act was passed, it was the intention of parliament to remit the trial of all offenders against it to the one or the other of these jurisdictions: that is, slave traders were to be tried, either by the commissioners in England, under the 28 Henry VIII. c. 15, the indictments being previously presented by a grand jury; or by the commissioners appointed under the 33d Henry VIII. c. 23; on the commitment of the privy council, and without any previous presentment; or, finally, by the commissioners for trial of pirates according to the course of the civil law.

It seems, however, not to have been remembered at the time of framing this act, that in the year 1806 a statute had been passed, (46 George III. c. 54,) which had partially repealed the act of King William. It provided, that offences of whatever kind, committed within the jurisdiction of the admiral, might be tried in the colonies, according to the common course of the laws of England used for offences committed upon the land within the realm of England, and not otherwise. Such trials were to be held by virtue of a commission to be issued under the great seal; and the commissioners were to have the same authorities within the colony, as the commissioners under the statute of Henry VIII. have in England. From the inadvertency committed in framing the slave trade felony act, without reference to the act of 1806, two consequences followed. First, it referred the trial of offenders to commissioners to be appointed under the statute of King William, which itself was virtually repealed so far as respected crimes committed within the jurisdiction of the admiral. Secondly, it did not refer their trial to the commissioners appointed under the act of 1806, whose jurisdiction over persons accused of slave trading was therefore questionable. To remove the doubt which had arisen respecting the competency of this latter tribunal, an act was passed in the year 1818, (58 George III. c. 98,) which declared, that all offences against the slave trade felony act,

which might be committed within the jurisdiction of the admi ral, might be tried by virtue of any commission under the act of 1806,

It is not to be denied, that our Statute-book affords a very sin、 gular illustration both of the insufficiency and the redundancy of human language. All the diligence which had been used to provide a competent jurisdiction for the punishment of every offence which slave traders could commit in every place, was not yet effectual. It appeared, that there was still one case more important perhaps than any other, over which neither the commissioners acting by virtue of 46 George III. nor any other of the courts already noticed, could exercise any controul ;-that case was slave-trading by his majesty's subjects on the land of Africa, or in any of the rivers of that continent. These places not being within the jurisdiction of the admiral, the offenders were not amenable to any of the commissioners specially appointed for the trial of crimes committed within the limits of that jurisdiction. Not being within the local limits of the jurisdiction of the ordinary courts of the King's African settlements, they were not subject to prosecution in those tribunals. The only remedy was to send such criminals to England, to be there tried under a commission issued by virtue of the statute of Henry VIII. The expense and difficulty of this proceeding, and perhaps also the hardship it inflicted on the accused party, rendered it necessary to pass another act. Accordingly, by the statute 59 George III. c. 97, it was declared, that such offences might be tried under any com mission issued according to the directions of the act of 1806.

The next statute which passed for giving effect to the abolition of the slave trade was the statute 53 George III. c. 112, by which it was declared that actions might be brought, or indictments prosecuted, for the penalties imposed by the acts of the 46th and 47th years of George III. at any time within three years after the commission of the offence by which the penalty was incurred.

In the following year a more important addition was made to the law, by the enactment of the statute 54 George III. c. 59, which declared all ships which might be forfeited under the abolition acts entitled to the privileges of British built ships, in the same way as ships condemned as prize of war; an important encouragement to captors and seizing officers, as it enabled them to introduce condemned vessels into the regular trade of Great Britain.

The next addition to this code of laws arose out of circumstances which strongly illustrate the calamitous nature of this


« السابقةمتابعة »