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(Enclosure 5.)—The Mixed Commission to the Captain-General. (Translation.)

SIR,

Havannah, August 29, 1826. In consequence of the discussion which has taken place in this Commission, respecting the detention of the Steam-boat Mexicano, by the English Sloop of War Pylades, and of the application to this Case of Article 7 of the Instructions annexed to the Treaty, we have agreed to request, that your Excellency will direct your Secretary of the Police Department to certify to us, whether, in the cases of Slaves being transported by Sea from The Havannah to the Estates of their Masters, or from one Estate to another, it has been the custom to deliver Passports for the purpose, or whether it was quite sufficient that these Slaves had a written Permission on the part of their Master, on every occasion that this Person or his Agent did not accompany them.

His Excellency the Captain-General.

CL. M. DE PINILLOS.
RAFAEL DE QUESADA.
W. S. MACLEAY.

(Enclosure 6.)—The Captain-General to the Mixed Commission.

GENTLEMEN,

(Translation.)

Havannah, August 29, 1826.

In reply to your Letter of this date, requesting to know whether, in the event of Slaves being transported by Sea from The Havannah to the Estates of their Masters, or from one Estate to another, it has been. the custom to issue Passports for that purpose, or whether it has been deemed sufficient that such Slaves had the Permission of their Owners, when these Persons or their Attorneys did not accompany them; I have to inform you, that by Article 1st, Part 2d, of the last Regulation of the Consulado respecting runaway Slaves, and by Article 10 of the Instructions for the Capitunes de Partidos, the Owners of Slaves, or even their Overseers, are authorised to grant written Licences for travelling, to their Slaves, without which Licences they are considered as runaways.

With reference to the above Regulations, Owners, or their Overseers, grant written Permissions to their Slaves, which authorise them, as well to travel along the high roads as to go from one Estate to another, and those Proprietors whose Estates are situated near the Sea, send their Slaves by Coasting-Vessels, with a permission similar to that which is used for passing them by Land. God preserve you many Years. The Members of the Mixed Commission. FRAN°. DIONo. VIVES.

(Enclosure 7.)-Opinion of His Britannick Majesty's Commissioner of Arbitration.

THE Mexicano, a Passage Steam-boat, sailing under Spanish Colours, was, on the 20th day of this month, while on her voyage from

Havannah to Matanzas, detained between the Morro and Coxemar, by His Britannick Majesty's Sloop Pylades, Captain Jackson, on a charge of having violated the 7th Article of the Instructions annexed to the Treaty, and having thus become liable to condemnation under this Mixed Commission.

There are several discrepancies in the Evidence before the Commission, but none that, in my opinion, any way affect the main fact on which this detention has been grounded, and by which alone it must be declared lawful or not. This fact is, that 20 Slaves were in the Steam-vessel at the time of her detention, on their way from Havannah to Matanzas, without the Vessel being provided with a Passport from the Government on the spot, furnished ad hoc. This is allowed on all sides to have been proved by the Evidence.

It appears to me also, from the Evidence, that the Slaves were concealed, or at least that delay and difficulty were placed in the way of the British Officers when searching for them, and that, while the other Slaves or Negro Servants on board were claimed by their respective Masters or Mistresses, these 20 were not so claimed. All this would go to shew a consciousness of there being some impropriety connected with them, which may possibly have been the deficiency of a proper Passport. There is no Evidence before the Court, however, to shew otherwise than that they are the property of the Conde de San Fernando, and were, when detained, on the passage from one of his Estates to another; and, therefore, as such property I am bound to consider them.

By Article 1 of the Regulations for the Mixed Commission, they are to judge according to the letter and spirit of the Treaty. Now with respect to the intentions of the High Contracting Parties who signed the Treaty, it is most clear, both from the whole of the tenour of this, and from the tenour of the Laws now existing, whether Spanish or British, relative to the Slave-trade, that it was the most anxious desire of their Britannick and Catholick Majesties, in signing that Treaty, to extinguish, by its means, this inhuman Commerce. Such being the spirit of the Treaty, it appears to me, that when two different passages of it are deemed to be in any degree conflicting as to their signification, we should adopt, as our guide, that passage the signification of which is the most in harmony with this spirit; so that if one passage should distinctly authorize the detention of Coasting Vessels, having Slaves on board, and another seem not so much to justify it, we ought to consider that passage which, by authorising the detention of such Vessels, agrees most with the grand object of the Treaty, that is, the Abolition of the Slave-trade, to be the true rule of our proceedings.

This remark I make when, supposing for a moment that, as has appeared to one of my Colleagues, there is a disagreement between certain passages of the Treaty, as, for instance, on the one hand, Ar

ticle 10 of the Treaty, which says, "in order to render lawful the detention of any Ship, whether Spanish or British, the Slaves found on board such Vessel must have been brought there for the express purpose of the Traffick ;" also paragraph 2 of Article 1 of the Instructions, which says, "Ships on board of which no Slaves shall be found, intended for purposes of traffick, shall not be detained on any account or pretence whatever ;" and, on the other hand, Article 7 of the Instructions, which stipulates that "no conveyance of Slaves from one Port in the Spanish Possessions to another shall take place, except in Ships provided with Passports from the Government, on the spot, ad hoc."

In paragraph 2 of Art. 1 of the Instructions, as above cited, I may observe, that, owing to the punctuation of the Treaty, as signed in English, there is an ambiguity which does not occur in the same Treaty as signed in Spanish, since the former may leave us in doubt whether it is, "Ships intended for purposes of traffick, on board of which no Slaves shall be found," or whether it is, as the Spanish Copy of the Treaty expressly says, "Ships on board of which shall be found no Slaves intended for the purposes of traffick," that are not to be detained. This ambiguity merits attention, because, if it be said that the meaning of the Article is, as may seem from the English punctuation, that Ships intended for purposes of traffick, that is, Merchant-ships, on board of which shall be found no Slaves, are not to be detained, it is most clear that we have this paragraph, in complete agreement with Art. 7 of the Instructions. If the other meaning be given to the paragraph, which, it must be allowed, is the only one it is susceptible of, according to the Treaty, as signed in Spanish, then we are to understand, that no Ship is to be detained that does not contain Negroes destined for the traffick, a provision which, if taken to relate to all Ships whatever, is indubitably at variance with Art. 7. of the Instructions.

That this provision, however, does not relate to all Ships of whatsoever kind, can be shown, as follows:

It is most evident, from its first line, that the whole of Art. 10 of the Treaty, relates to regular Slave-ships coming from the Coast of Africa, and, consequently, has not the least reference to Coasting Vessels from Port to Port of the Spanish Possessions, which may, like the Mexicano, have Slaves on board, without the proper Passports. The same observation holds good with respect to Art. 1 of the Instructions, namely, that it also has reference only to Ships regularly fitted out for the Slave-trade; and as all the secondary paragraphs of an Article have a reference to the primary one, it follows that, taking the Treaty as signed in Spanish, the meaning of the 2d paragraph, Art. 1, of the Instructions, is, that "Slave-ships, on board of which no Slaves shall be found intended for purposes of traffick, shall not be detained on any account or pretence whatsoever." Indeed, that this is the true inter

pretation of Art. 10 of the Treaty, and of the paragraph 2 of the Instructions, sufficiently appears from these being the very provisions, which, in the opinion of both Governments, required alteration, and which accordingly gave rise to the Additional Articles signed in 1822, and lately confirmed by His Catholick Majesty.

Consequently, there is no contradiction between the terms of Art. 10 of the Treaty, and paragraph 2, Art. 1, of the Instructions, which relate solely to regular Slave-vessels, and those of Art. 7 of the Instructions, which Article refers to Vessels not in the regular Slave-trade. Indeed, it is impossible to suppose that the High Contracting Parties should not have observed in these short Instructions so obvious an inconsistency as would result from making Article 10 of Treaty, paragraph 2, Art. 1 of Instructions, and Art. 7 of Instructions, all refer to the same kind of Vessels. I, therefore, conceive that Art. 7. of the Instructions remains clear and uncontradicted by any previous or subsequent part of the Treaty and its Appendages.

Thus, the main question before the Commission relates entirely to the legality of the detention of the Steam-boat, under Art. 7 of the Instructions; for, if the Commander of the Pylades be justified under this Article, I hold, from what has been already said, that no other passage of the Treaty can be brought forward to invalidate the detention.

But, before I consider the legality of this detention, it is necessary, from observations made in Court, that I should acknowledge that the Detainer seems to me to have erroneously connected the 3d paragraph of Art. 1 of the Instructions with Art. 7, inasmuch as he conceived it to be his duty, under the said paragraph, not to require Passports for 2 Negro Servants, that appear to have attended their Master on board, or at least, to have allowed all the Passengers, whether white or coloured, whom he found on deck, to go on shore, whereas, in my opinion, there cannot be the least doubt that the true interpretation of the Treaty required that he should have only looked to Art. 7 of his Instructions, under which he detained the Vessel, and have insisted on a Government Passport being shewn to him by the Captain of the Vessel for all the Slaves that might have been on board.

I find, however, that the Detainer's application to Vessels of all descriptions, of paragraph 3, Art. 1 of his Instructions, is perfectly analogous to the opinion of one of my Colleagues, who thought that paragraph 2, Art. I, of the Instructions, relates to Vessels of all descriptions. If one of these paragraphs relates to other Vessels than regular Slave-ships, then the other must also. But it is my firm opinion that neither have the least reference to the Case of a Vessel carrying Negroes from one Spanish Port to another, and, consequently, that by Art. 7, as was said before, any Ship with Slaves on board, passing

from one Spanish Port to another, without Passports from the Government on the spot, is liable most decidedly to detention.

It has been contended, however, by my Colleagues, that this Art. 7 relates only to the transfer of Negroes from one Spanish Possession, such as Puerto Rico, to another, such as Cuba, but the words are clear, "from one Port of the Spanish Possessions to another," that is, for instance, from The Havannah, a Port of Cuba, and consequently a Port of the Spanish Possessions, to another, Matanzas, likewise a Port of the Spanish Possessions. It is true that the Article applies also to the transfer of Slaves from any Spanish Port, such as Puerto Rico, to another, as The Havannah; but I do not see how, from the Spanish or English Copy of the Treaty, it can be contended, that this Steam-vessel was not, when detained, in the act of transporting Negroes from one Port of the Spanish Possessions to another. It might, perhaps, be said, that this detention is even more valid, according to the letter of the Treaty, than the detention of Slaves passing from Puerto Rico to The Havannah would be, for the words in the Spanish Treaty are "del Gobierno de aquel Territorio," and not" de los Gobiernos de aquellos Territorios," words that would, in my humble opinion, have more clearly applied to the transfer of Negroes from one Island to another having different Governors.

In every question of this nature, the spirit of the High Contracting Parties, in signing the Treaty, will be an excellent guide. Now, I conclude that it was the intention of Spain to destroy every opportunity of subterfuge, and consequent escape from just condemnation, on the part of Slave-traders; and that, therefore, His Catholick Majesty determined to permit no Slaves to pass from one of his Ports to another, in Ships unprovided with Passports for that purpose, thereby preventing the facilities which regular Slave-vessels on the Coast would have by their means for landing their Negroes. By this Article 7, His Catholick Majesty may have intended to prevent such a case as a Slave-vessel, just arrived from Africa, placing Negroes on board the Steam-boats, and so procuring their clandestine entry into The Havannah, a case that has been publickly said to have occurred; whereas, were all Vessels transporting Slaves provided with Passports from the Authorities of the Port from which they sailed, there could be no such collusion between Coasting Vessels and Slavers. From these circumstances, and the ardent desire which, in his late Decrees, His Catholick Majesty has shewn to destroy this Traffick, I infer that it was really his intention, by Article 7 of the Instructions, to prohibit any transportation of Slaves by Sea, without Passports for that purpose.

And that it was in this same spirit that the British Government concluded the Treaty, I infer, not only from the detestation with which

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