and she was finally detained by the Marte under circumstances which, I will take upon me to say, preclude any reasonable doubt that the object of the Captain was to land the Negroes clandestinely. At the time of the detention there was no one of the Portuguese Officers on board, and none of the original Portuguese Papers. Papers, indeed, were produced, but such as it would be absurd to imagine that a person, considered by the Marine Department here as fit to be entrusted with the command of a large Privateer, should for a moment believe sufficient to authorize any Tribunal whatever to condemn a Prize or declare her capture legal. Under all these circumstances, I cannot perceive the expediency of adopting a measure in violation of Law and Treaty, for the purpose of reimbursing, and saving from other expenses, the individual who, as Owner of the Privateer, is necessarily responsible for all the consequences of the capture. With respect to the distribution of the Negroes, (supposing that measure to be legal,) and the conditions imposed by the Court of Admiralty upon those who pay their money for them, I must express my conviction that those conditions will be found inadequate to the attainment of their object, that is, the security and good treatment of the Negroes, since there is no penalty specified for the non-performance of the same; nor does the purchaser in any case forfeit his right to the services for which he has paid, it not being provided that the Negroes, under any circumstances, can be released from the services they are bound to perform for the Master that the Court of Admiralty may have selected for them, nor can they demand a change of Masters. So that their lot, in this respect, is harder than that of common Slaves, especially those who are "coartados," under the Spanish Law. The Third Article of the Conditions, in particular, appears to be very humane, directing, among other things, that the Negroes shall not be punished; but, if they are punished, (and it is difficult to believe, that they will not be,) where is the remedy? Is it to be supposed that a newly-imported Negro will go to the Court of Admiralty to demand redress of his Master or Depositary, even supposing that that Court had reserved to itself the power of giving him relief, which it has not? That Article, therefore, and those of a similar description, must be considered, not only as inadequate to the attainment of their professed object, but as altogether nugatory. There is a reflection connected with this measure of distribution, to which I canot avoid alluding. The decision of the Spanish Government, solicited by the Court of Admiralty, may easily be received within six months, or even less; and will, beyond all doubt, be to the effect, either that the Negroes be declared free, or that they be delivered up to the Portuguese Owners, and sent out of the Country— the latter alternative being more probable. I ask, then, what bonâ fide Purchaser would give fifty dollars, (by public report that is the sum fixed upon,) or indeed any sum, for the services for so short a period of a "bozal" Negro just imported? Is it not to be presumed that those who come forward to purchase under such circumstances will have plans of remunerating themselves more certain than the mere labour of the Negroes? Your Excellency's penetration renders it unnecessary to pursue this reflection any farther; but I would advert to the heavy responsibility that would be incurred by the adoption of the measure in question, if it should be found that, at the expiration of the period of the deposit, a considerable number of the Negroes are not forthcoming. But the distribution, or rather the entire disposal of the Negroes, whether it be by distributing them among private individuals, or employing them in the service of Public Establishments until they shall be able to maintain themselves, is, I conceive, (in conformity with the spirit of the Treaty of 1817,) the exclusive province in all Cases of the Chief Authority of the Island. The Seventh Article of the Regulations for the Mixed Commissions, annexed to that Treaty, is clear and explicit upon this point in the Case of Negroes emancipated by those Commissions; and although the Royal Cedula of December, 1817, is silent upon the subject, yet, having been issued in consequence of, and in conformity to, the Treaty, it would seem that, in doubtful matters, it should be understood with reference to the same. The Tribunals of the Country consequently may, like the Mixed Commission in certain Cases, condemn Slave Vessels, declare the Negroes to be free, and give them their Certificate of Emancipation; but there their powers cease, and the Negroes should then be delivered over to the Chief Authority. There are other strong reasons for the adoption of this arrangement, which the High Contracting Parties probably had in view when they thought it expedient to separate the important duty of the care of the Negroes after Emancipation from the Mixed Commissions. It would appear that they considered the Chief Authority of the Country alone as adequate to this charge, because he, as presiding over the internal Police, is the only one responsible for the conduct of such Negroes; and moreover the only one that has sufficient power to impose and exact the fulfilment of such conditions as may be judged necessary for the care and preservation of the same, and for securing to them the enjoyment of their liberty without restrictions at the expiration of a reasonable period. Even therefore, had the Court of Admiralty been authorized to condemn the Vessel, and emancipate the Negroes, the distribution would not have been within its powers; and much less so in the present Case, in which that Court itself expresses doubts of being warranted to pronounce any decision whatever. Under this view of the subject, the Decree of the Court of Admi ralty, in so far as it regards the distribution of the Negroes upon the terms expressed, is in violation of Law and Treaty; those Negroes being thereby virtually reduced to a state of slavery. It alleges as grounds for the adoption of the measure, the want of funds to defray past and future expences; when there is an Individual bound by every consideration of law and justice to be answerable for the former; and another voluntarily disposed to take upon himself the payment of the latter; it imposes conditions for the care and good treatment of the Negroes, inadequate to their professed object, and indeed altogether nugatory; it involves a consequence from whence arises a well-founded suspicion that the future security of the Negroes would be in imminent danger; and, finally, it assumes a power to that Court which exclusively belongs to the Chief Authority of the Island, deposited in your Excellency's hands. The Court of Admiralty having thought proper, in the above mentioned Decree, to allude to the delay that has taken place in this Case, it will be necessary to notice the subject. The Brig Maria de la Gloria entered this Port on the 17th of June, but her Case was not submitted to the cognizance of the Mixed Commission till the 9th of July; and on the 17th of the same, the Decree of the Court and Copies of all the voluminous Proceedings were transmitted to your Excellency. So that the delay certainly cannot be attributed to the Commission. The interval from the 20th of June to the 9th of July was passed in the contest respecting the cognizance of the Case, which point, when divested of all extraneous matter, which only serves to perplex and to confuse, is reduced to the simple question-whether the Case of a Slave Vessel detained and carried into this Port by one of His Catholic Majesty's Cruizers, duly provided with the Instructions annexed to the Treaty, is of the jurisdiction of the Mixed Commission or of the Court of Admiralty? Your Excellency has decided this question; and I trust that the approval by your Government of that decision will preclude all future discussion upon the subject. Your Excellency will recollect that the Court of Admiralty always claimed the cognizance of the Case of the Maria de la Gloria, upon the ground that that Vessel had been originally captured by the Privateer Romano, and that it belonged exclusively to that Court to judge of the conduct of the latter in making that capture; and as soon as the Mixed Commission had ascertained that there were well-founded motives for believing that such was the fact, they immediately abstained from fur. ther Proceedings, and relinquished the cognizance of the Case, with the reservation however, "that if, in the course of the Proceedings respecting the conduct of the Captain of the Privateer, it should be proved (as was within the bounds of possibility) that he had himself acquired the Negroes by Traffic direct or indirect, and that the Portuguese property was only apparent, in that Case the process should be returned to them, for to the Commission it would belong, in consequence of the detention by the Marte, to condemn the Vessel, to declare the Slaves free, and to give them their Certificate of Emancipation." Under these circumstances, it is worthy of observation that the Court of Admiralty in their Decree have entirely refrained from touching upon this most important point, upon which it was their peculiar province to decide, and for which decision it certainly appears that they had sufficient grounds; thus utterly disregarding the reservation made by the Mixed Commission. With respect to the Secret Decree of the Court of Admiralty, I have only to observe that, if its object be to impress upon His Catholic Majesty the inexpediency of allowing Negroes in the state of those belonging to the Maria de la Gloria, to enjoy at once an unrestrained liberty, I entirely coincide as to the propriety of that object; but I apprehend that such a System never was in the contemplation of the Parties to the Treaty, or of the Government of this Island. Your Excellency at least, I have reason to believe, was prepared for the event of the Negroes being declared free by the Mixed Commission, and had resolved upon the adoption of a System respecting them, which would at the same time have secured their permanent welfare, and the order and tranquillity of the country. But if the object of that Court be (as it would appear from the tenor of their observations) to recommend to His Catholic Majesty not to carry into effect the Stipulations of the Treaty of 1817, nor the Provisions of His Royal Cedula issued in consequence of the same, the subject is of a more important nature, and will necessarily call for the intervention of His Britannic Majesty's Government. Such are the observations I have felt it to be my duty to make to my Government respecting the Proceedings in the Case of the Portuguese Brig, Maria de la Gloria; and as, in the course of them, I have necessarily had frequent occasion to advert to the measures adopted by the Court of Admiralty, I beg leave explicitly to state, that I have done so by no means with the intention of venturing to point out to that Tribunal the line of conduct they ought to adopt. Neither are my remarks to be considered in the light of animadversions addressed by me to your Excellency upon the Proceedings of the same, a step I am not authorised to take. I make the observations to my Government, because I conceive it to be my duty to do so; and I repeat them to your Excellency, in the most perfect spirit of fairness and justice, in order that you, and any Department they may concern, may not be taken unawares, and may be prepared in the event of His Britannic Majesty's Government thinking it expedient, in consequence of my Report, to make a Representation upon the subject to that of His Catholic Majesty. I avail myself of this occasion, &c. &c. His Excellency the Captain-General. H. T. KILBEE, (Enclosure 10.) Minute of the Proceedings of the Mixed Commission. (Translation.) In the always most faithful City of Havannah, on the 18th of September, 1824, the Members of the Mixed Commission met (as they had done upon some previous occasions,) for the purpose of taking into consideration the preceding Official Letter of His Excellency the Captain General, and the Copies of the Proceedings of the Court of Admiralty, which Documents were read with attention, and after a long conference respecting them, in which the principle was laid down that it did not belong to the Commission to discuss the Proceedings of the Tribunals of the Country, unless the peculiar powers of the former are concerned, the said Members resolved unanimously that, without losing sight of that principal, they could not avoid observing that, by the above-mentioned Copies of their Proceedings, it appears that the Court of Admiralty have abstained from inquiring into, or at least from pronouncing an opinion respecting the conduct of the Captain of the Privateer in the capture of the Brig, Maria de la Gloria, a conduct which well deserved to be scrupulously examined into, for having sent in that Vessel without her Captain, without any of her Officers, and even without her own Papers; which omissions, added to the circumstance of the Privateer being upon the Coast of Africa, although her Commission was limited to the American seas, and also to the course taken by the captured Brig with her cargo of Negroes at the time she was detained by His Catholic Majesty's Brig, Marte, give rise to serious and obvious suspicions: influenced by these considerations, the Commission, upon the occasion of transmitting the Cause to His Excellency, made the special reservation of re-assuming the cognizance of the same, if, in the course of the Proceedings to be taken respecting the conduct of the Captain of the Privateer, it should be discovered that he had in any way been concerned in the traffic by which those Slaves were acquired; which reservation is rendered nugatory, the same suspicions still existing; and the Mixed Commission, therefore, make this observation, limited however to this particular point, without touching upon the others contained in the Copies of the aforesaid Proceedings. And considering that the Captain General will make to The King a full Report of this Case, the said Members resolved that an Official Letter should be addressed to His Excellency with a Certified Copy of this Resolution, in order that, if he thinks proper, he may likewise submit the present observation to His Majesty for the purposes that may be judged necessary; and they signed this in the presence of the Secretary. September 18, 1824. JAUREGUI. H. T. KILBEE. QUESADA. N |