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attended accordingly at the house of the said Acting Kings's Advocate, when an Officer, belonging, as Deponent was informed, to the Maidstone Ship-of-War, made a charge against this Deponent, that he had been the means of preventing the escape of the Slaves on board the Perpetuo Defensor; that the said charge was fully gone into before the said Acting King's Advocate, and dismissed as unsupported by evidence; and Deponent further says, that this Deponent was then in. formed by the said Acting King's Advocate, that his Honour the Acting Governor had requested it should be stated to this Deponent, that if this Deponent at all interfered to prevent the escape of the Slaves, or to keep them on board, that he would be proceeded against accordiug to Law; in the other Affidavit, William Henry Savage, the Claimants' Proctor, deposed, “ that on the 6th day of July last, he was informed by his Honour the Acting Governor, the Honourable Kenneth Macaulay, that, in consequence of a complaint made to him, he desired that John Garel should attend the Acting King's Advocate at 3 o'clock, to have the said charge inquired into; that Deponent therefore gave such notice to the said John Garel, and with him attended the Office of the Acting King's Advocate; that a charge was brought against him, the said John Garel, for assisting the Portuguese in charge of the said Brig Perpetuo Defensor to prevent the Slaves from escaping from the said Brig, and to keep them in confinement on board the said Brig; that Deponent stated that he had sent orders to the Acting Master to prevent any one from leaving the said Brig who was considered part of the Cargo, and therefore that any message delivered by the said John Garel, to that tenour and meaning, was according to his Instructions; that the said Acting King's Advocate then stated, that he had it in command to state, that if John Garel, or any other person belonging to the Colony, employed about the said Brig or not, to prevent the said Slaves from leaving the said Brig, or to keep them on board, were aiding and assisting, they would be prosecuted. These Affidavits were not answered by the Proctor for the Captor, till after the Registrar had made his Report of the amount of costs, damages and expences, which was on the 29th of August, in consequence, as was stated by Mr. Lake, of his not knowing Mr. Savage had filed the said Affidavits, till he saw it mentioned in the Registrar's Report, he therefore brought in two Affidavits on the 6th day of September, in answer to them,-in the first of which he, the said John Dean Lake, deposed, “ that on the 6th day of July last, at or about 4 o'clock in the Afternoon, he, this Deponent, being at Government House, in conversation with his Hononr the Acting Governor, did see Mr. William Henry Savage enter the said House and inform his said Honour the Acting Governor that he, Mr. Savage, had come to the decision of landing a number of Slaves that were on board the said Brig, and to abide the decision of the Court of Mixed Commission; that at the time this Deponent clearly
and distinctly heard the said Mr. Savage express to his Honour the Acting Governor, that although he, Mr. Savage, had come to the decision of landing the said Slaves, yet he had means in his power, or on board the said Vessel, to coerce the said Slaves should he deem it expedient, and that he would take the chance of being paid the value of the whole of the said Slaves or no part thereof.
“ That the said Slaves were landed on the same evening by the direction and under the superintendence of the said Mr. William Henry Savage.” In the other of these Affidavits, the Honourable Kenneth Macaulay deposed, “ that he had read the before-mentioned Affidavit of Mr. Lake, the Proctor in the said Cause, and had found the several circumstances therein stated to have taken place, to be truly alleged."
In reply to these Affidavits, on the 11th of September following Mr. Savage brought in an Affidavit made by him, in which he deposed, " that during the period that there existed some uncertainty respecting the feeding of the Slaves on board the Perpetuo Defensor and the Colonial Brig Susan, this Deponent waited on his Honour the Acting Governor of the Colony (Mr. Macaulay,) and, in conversation respecting the said Slaves, his Honour declared unto this Deponent, that even if the Court of Mixed Commission were to restore Claimant the Slaves, it would be impossible for Claimant to carry them away in slavery, as, in his capacity of Acting Governor, he would not permit the said Vessel to procure provisions or water in this Colony for the use of the said Slaves;' that the Person employed in supplying provisions was brought up before the Acting King's Advocate, to answer for his conduct relative to the using some means to prevent the escape of the Slaves, and charges of cruelty had also been made against the Acting Master, on which was founded a motion for a Writ of Habeas Corpus to remove the said Slaves from on board the Perpetuo Defensor, Deponent could not, therefore, venture to advise the adoption of any coercive measures towards the said Slaves, so as to keep them in subordination, for fear of incurring the displeasure of his Honour the Acting Governor, and involving the Acting Master and Crew, and also this Deponent, in a criminal prosecution. And this Deponent having had represented unto him the very outrageous manner the Slaves were acting, after they had seen their fellows landed from the Susan, both towards the Acting Master and the slender Crew on board, did, therefore, to prevent any fatal consequence, either to the Crew or Slayes, and which Deponent bad every reason to believe would take place if the said Slaves were not permitted to be landed, and also taking into consideration the aforesaid Declaration of his. Honour the Acting Governor, and the several circumstances before mentioned, did advise the Claimant to give way to necessity, and consent to the landing the said Slaves, and that the Claimant having consented, this Deponent,
on or about the 8th day of July, did wait on his Honour the Acting Governor, and state to his Honour that Claimant had come to the resolution of letting the said Slaves be landed, and that this Deponent did, therefore, concert measures to carry the same into effect hefore the close of that day, being pressed thereto by the Acting Master and Crew, who further declared unto this Deponent their fears for their personal safety were so great, that, unless the said Slaves were landed before night, they, the said Acting Master and Crew, would quit the Vessel.”
After this, a delay of several days took place before the Court could further consider this Case, in consequence of the intervening of the Quarter Sessions, at which the Commissioners had to attend, and which was of much longer duration than is commonly the case.
On the 26th of September, the Court, having maturely considered the Report of the Registrar, ordered the same to be referred back to that Officer to be amended, by striking out, under the head of Special Damages and Expences, £256, being of opinion that the said sum was claimed for expences which the amount allowed for demarrage would cover. The Court further directed that, in lieu of the sum of £225, allowed by the Registrar for the Interest of the supposed Capital em. ployed, which includes the value of the Brig, that the luterest be allowed on the amount of the purchase and maintenance of the Cargo, which the Court conceived meant the purchase and maintenance of the Slaves only, reckoning the value of the Slaves and their maintenance at the cost-price in The Brazils, of the goods with which the Slaves were purchased, and the means of their maintenance procured, in manner following, viz. : 473 Slaves shipped on board, according to the Master's statement, at £4. each, according to the Leeward price, and 2d. British Sterling per head, per diem, for the maintenance of each Slave, that being about the rate of maintenance of the liberated Africans when first landed in this Colony.
On the 28th of September, the Registrar brought in the amended Report, wherein he stated his opinion that the Claimant was entitled to, first, £79. for special costs, damages, and expences, occasioned to the Brig by detention ; secondly, £1,430. for demurrage, from April the 18th to the 26th of August, at £11. a day, the Brig being 21220 tons burthen ; thirdly, £122. 10s. for subsisting the Slaves from the 29th of June to the 6th of July, at Is. per day for each Slave; fourthly, 79,716,000 Reis for the total loss of 364 Slaves, at 219,000 Reis each, (under the fifth head no Claim was made); sixthly, £102. 9s. 8d. for 5 per cent on the amount of the Capital employed in the purchase and maintenance of the Cargo; amounting in the whole to £1,733. 19s. 8d. and 79,716,000 Reis.
After the Report was read, Mr. Lake, the Proctor for the Captor, prayed the Court that the said Report might be further amended, by
allowing for the total loss of 276 Slaves only, instead of 364, by reason of the Claimant's Proctor having taken upon himself to land the 88 Slaves from the Perpetuo Defensor, there having been no necessity for his so doing, and insisted that there had been no violence manifested on the part of the Slaves to warrant their having been put on shore, nor were they at that time in a state of revolt; but as the Court were of opinion that the revolt and violence manifested by the Slaves had been clearly proved by the Affidavits filed for that purpose, the allegations in which had not been attempted to be refuted but by the simple assertion of Mr. Lake, which assertion did not accord with what had been said in the Letter to the Colonial Secretary, by Mr. Tollervey, the Prize-Master; and as it had also been distinctly proved by the Affidavits of Messrs. Savage and Garel, that it was the determination of the Colonial Government not to allow any one to controul the said Slaves from leaving the Vessel if they pleased, which although said to be answered by Mr. Macaulay, the Governor, and Mr. Lake the Captor's Proctor, yet not one of the assertions in those Affidavits were even denied by them in their Affidavits, but only fresh matter alleged, stating that Mr. Savage had asserted he had the means in his power, or on board, of coercing the Slaves if he chose it: the Court, therefore, being fully satisfied that the Claimant, Antonio Mauricio de Mendonça, was obliged to submit to circumstances, and being also of opinion that, if the Slaves had not been excited to insubordination by Martin and others, there would have been no revolt, and consequently no necessity to land them, refused the prayer of Mr. Lake. The Court then confirmed, unconditionally, the sum allowed by the Registrar for Costs of Suit, and for Special Damages and Expences occasioned to the said Brig by detention, amounting to £79; the Court also confirmed, unconditionally, the sum allowed by him, for provisioning the Slaves from the 29th of June to the 6th day of July last, amounting to the sum of £122. 10s.; and it having been represented and proved to the satisfaction of the Court, that the said Ship would be unable to proceed to Sea, unless the Master could raise a further sum of £150, by the Court giving a further unconditional award for that sum, the Commissioners, therefore, did also unconditionally confirm so much of the sum allowed by the Registrar in the said Report, for Demurrage, as amounts to £150, making the whole an unconditional award for £351. 10s. for Costs of Suit, Special Damages and Expences, provisioning the Slaves, and for part of the Demurrage.
And the Commissioners being fully convinced that the Claimant in this Case had carried on an illicit Traffick in Slaves during the present voyage, inasmuch as it had been clearly proved that Slaves taken on board this Vessel were shipped from Badagry, in 6. 26. North of the Equator, in direct defiance of the Additional Convention to the Treaty made between Great Britain and Portugal, in the Year of our Lord
1817, for the prevention of illicit Traffick in Slaves; and the Commissioners, therefore, having deemed it just and equitable that the Case should be adjudicated on the same principles as the Case of the Brig Activo, whereof Jozé Pinto de Araujo was Master, which Case was lately before the Court, inasmuch as Commodore Bullen, the Captor, could not be aware of the Decision in that Case at the time he made the present seizure; and the Commissioners being of opinion, as in that Case, that the absolute and unconditional confirming the whole of the amended Report would be contrary to the principles of equity, and would in point of fact be rewarding the Claimant, not only for a breach of the Convention between Great Britain and Portugal for the prevention of the illicit Traffick in Slaves, but also for a breach of the Laws of his own Country; and the Commissioners having considered in this Case, as in the former, that, by the Convention aforesaid, there is no Appeal from their Judgment, and also that it was most desirable that some additional measure should be adopted by the British and Brazilian Governments, for the prevention of such glaring violations of the Convention as the present, and that of the Activo; and in the hope that this Case may, in addition to the other, particularly call forth the attention of both Governments, have, therefore, only confirmed the remaining part of the said Report, in the event of the British and Brazilian Governments agreeing and declaring the same ought to be confirmed, according to the true intent and meaning of the Convention aforesaid, but not otherwise.
D. M. HAMILTON.
(Enclosure 2.)—Decree of the Mixed Commission, 3rd August, 1826. Portuguese Brig Perpetuo Defensor, Antonio Mauricio de Mendonça,
Master. The Proctors for Captor and Claimant having petitioned the Court to appoint an early day for the hearing of the Parties in the above Cause; His Britannick Majesty's Commissioner of Arbitration, sat this day for the purpose of furthering the Proceedings in this Case, the Proctors on each side agreeing to consider His Britannick Majesty's Commissioner of Arbitration, sitting by himself, in the unavoidable absence of His Britannick Majesty's Commissary Judge from severe illness, as a full and competent Court.
The said Commissioner of Arbitration, having heard the Claim and Proofs read, and the Proctors on both sides thereon, admitted the Claim for Costs, Damages, and Expences incurred, in consequence of the seizure of the said Brig and Cargo, and referred it to the Registrar to ascertain the ainount thereof, and report the same to the Court.