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APPENDIX

MEMORANDUM ON THE TREATIES CONCLUDED BY GREAT BRITAIN WITH POWERS
STILL OWNING SLAVES FOR THE SUPPRESSION OF THE SLAVE TRADE, AND ON
THE LAWS RELATING TO SLAVERY IN THOSE COUNTRIES, BY MR. HENRY
HOWARD, C.B., SECRETARY TO THE ROYAL COMMISSION

REPORTS FROM HER BRITANNIC MAJESTY'S REPRESENTATIVES ABROAD AS TO
THE LAW AND PRACTICE OF FOREIGN COUNTRIES WITH REFERENCE TO
FUGITIVE SLAVES, AND AS TO THE STATUS OF SLAVERY IN COUNTRIES STILL
HOLDING SLAVES

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MEMORANDUM ON THE ESTABLISHMENTS FOR LIBERATED AFRICANS AT MOMBAZA
AND NYANZA, BY THE RIGHT HONOURABLE SIR H. BARTLE E. FRERE, BART.,
G.C.B., G.C.S.I. -

GENERAL INDEX

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ROYAL COMMISSION.

VICTORIA R.

Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith.

To Our right trusty and right entirely-beloved Cousin and Councillor Edward Adolphus, Duke of Somerset, Knight of Our Most Noble Order of the Garter; Our right trusty and well-beloved Councillor Sir Alexander James Edmund Cockburn, Baronet, Knight Grand Cross of Our Most Honourable Order of the Bath, Lord Chief Justice of England; Our right trusty and well-beloved Councillor Sir Robert Joseph Phillimore, Knight, Doctor of Laws, a Judge of Our High Court of Justice; Our right trusty and well-beloved Councillor Mountague Bernard, Doctor of Civil Law, a Member of the Judicial Committee of Our Privy Council; Our trusty and well-beloved Sir Thomas Dickson Archibald, Knight, one of the Judges of the Common Pleas Division of Our High Court of Justice; Our trusty and well-beloved Alfred Henry Thesiger, Esquire (commonly called the Honourable Alfred Henry Thesiger), one of Our Council learned in the Law; Our trusty and well-beloved Sir Henry Thurstan Holland, Baronet, Companion of Our Most Distinguished Order of Saint Michael and Saint George; Our trusty and well-beloved Sir Leopold George Heath, Knight Commander of Our Most Honourable Order of the Bath, Rear-Admiral on the Retired List of Our Fleet; Our trusty and well-beloved Sir Henry James Sumner Maine, Knight Commander of Our Most Exalted Order of the Star of India; Our trusty and well-beloved Sir George Campbell, Knight Commander of Our most Exalted Order of the Star of India; Our trusty and well-beloved James Fitzjames Stephen, Esquire, one of Our Council learned in the Law; and our trusty and wellbeloved Henry Cadogan Rothery, Esquire, Our Registrar in Ecclesiastical and Admiralty Causes, greeting:

Whereas We have deemed it expedient that a Commission should forthwith issue to inquire into and report upon the nature and extent of such international obligations as are applicable to questions as to the reception of Fugitive Slaves by Our ships in the territorial waters of foreign States, and into all instructions from time to time issued to the Commanders of Our ships relative thereto, and whether any engagements into which this country has entered bear upon such questions, and whether in case such obligations, instructions, or engagements shall appear to be at variance with the maintenance by Our ships and officers in whatever waters they may be of the right of personal liberty, any and what steps should be taken to secure for them greater freedom of action in this respect.

Now know ye, that We, reposing great trust and confidence in your knowledge and ability, have authorised and appointed, and do by these presents authorise and appoint you the said Edward Adolphus Duke of Somerset, Sir Alexander James Edmund Cockburn, Sir Robert Joseph Phillimore, Mountague Bernard, Sir Thomas Dickson Archibald, Alfred Henry Thesiger, Sir Henry Thurstan Holland, Sir Leopold George Heath, Sir Henry James Sumner Maine, Sir George Campbell, James Fitzjames Stephen, and Henry Cadogan Rothery, to be Our Commissioners for the purposes aforesaid.

And for the better effecting the purposes of this Our Commission, We do by these presents give and grant unto you, or any three or more of full power you, and authority to call before you such persons as you shall judge likely to afford you any information upon the subject of this Our Commission, and also to call for, have access to,

and examine all such books, documents, registers, and records as may afford the fullest information on the subject, and to inquire of and concerning the premises by all other lawful ways and means whatsoever.

And We do by these presents will and ordain that this Our Commission shall continue in full force and virtue, and that you Our said Commissioners, or any three or more of you, may from time to time proceed in the execution thereof and of every matter and thing therein contained, although the same be not continued from time to time by adjournment.

And We further ordain that you, or any five or more of you, may have liberty to report your proceedings under this Commission, from time to time, if you shall judge it expedient so to do.

And Our further will and pleasure is, that you do, with as little delay as possible, report to Us, under your hands and seals, or under the hands and seals of any five or more of you, your opinion upon the several points herein submitted for your consideration.

And for your assistance in the execution of these presents, We do hereby authorise and empower you to appoint a Secretary to this Our Commission to attend you, whose services and assistance We require you to use from time to time, as occasion may require.

Given at our Court at Saint James's, the fourteenth day of February, one thousand eight hundred and seventy-six, in the Thirty-ninth year of Our Reign.

By Her Majesty's Command,

RICHARD ASSHETON CROSS.

REPORT.

TO THE QUEEN'S MOST EXCELLENT MAJESTY.

By Your Majesty's Commission we are directed" to inquire into and report upon "the nature and extent of such international obligations as are applicable to questions "as to the reception of Fugitive Slaves by Your Majesty's ships in the territorial "waters of Foreign States, and into all instructions from time to time issued to the "Commanders of Your Majesty's ships relative thereto, and whether any engage"ments into which this country has entered bear upon such questions; and whether, "in case such obligations, instructions, or engagements shall appear to be at variance “with the maintenance by Your Majesty's ships and officers, in whatever waters they may be, of the right of personal liberty, any and what steps should be taken to "secure for them greater freedom of action in this respect." Having inquired into and considered the subjects so referred to us, we humbly submit to Your Majesty the following Report:

66

I.

The first question for our consideration is:

"The nature and extent of such international obligations as are applicable to the "reception of fugitive slaves by ships of the Royal Navy in the territorial "waters of foreign states

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We understand that under this nead we are required to report on international obligations which are not created by treaty engagements, but such only as are recognized by maritime Powers in general as applicable to their commissioned ships when admitted into the ports and waters of foreign states.

The reception of fugitive slaves is not a matter in regard to which there has been any common understanding amongst nations. In several treaties concluded in the seventeenth and eighteenth centuries by various European Powers with States of the Barbary coast, and in some treaties concluded with them by the United States of America, provision has been made for the case of slaves who should escape to ships of war lying in Barbary ports; the principle generally adopted being that the slave should be free, though to this there are some exceptions. Otherwise, so far as we are aware, the question has never presented itself practically to any nation but our own.

It is clear that the jurisdiction of every independent nation within its own territory is supreme, otherwise the nation would not be independent. This supremacy entitles it to exclude all ships, whether merchant ships or ships of war, from its ports and harbours. It can also admit them on such conditions and subject to such regulations as it may choose to impose.

Where no special conditions are imposed all ships entering the territorial waters of a foreign state are bound by the obligations of international law, which may be held to be the result of the common understanding of nations as evidenced by their practice. Merchant ships are subject to the laws of the state whose harbours they enter. Ships of war, on the other hand, being national ships, have certain privileges and immunities founded on universal custom.

It may, we conceive, be safely affirmed that a ship of war entering the waters of a friendly state is by the common practice of nations regarded as exempt, speaking generally, from the jurisdiction of the local authorities, and is at the same time under an international obligation, speaking generally, to respect the local law.

We are unable, however, to report that the extent of the immunity on the one hand, or the limits of the obligation on the other, have been so clearly and completely settled by international usage that they can be stated with absolute confidence and precision. There is room for a difference of opinion with respect to them, and such a difference of opinion exists. In like manner, with reference to the principles of international law applicable to the reception of fugitive slaves, a difference of opinion exists, and the views of some of the Commissioners on these subjects will be found annexed to the Report.

Bee Reports on Law and Practice of Foreign Countries in Appendix, p. 94.

We think it better, therefore, to refrain from attempting a definition on which doubt must rest, the more so as, notwithstanding such difference, we are able to concur in the recommendations which will be found in this Report, and we believe that, if they be adopted by Your Majesty's Government, the measures necessary for giving effect to them would not afford reasonable cause of complaint to foreign countries. For it must always be remembered, that states within whose territories slavery continues to exist can refuse to admit British ships of war into their ports and waters, should they deem this extreme measure necessary for the protection of national or private interests.

We have endeavoured, through the Foreign Office, to ascertain what are the law and practice of foreign nations with reference to the reception of fugitive slaves on board their ships of war. It appears, as has been stated above, that the question has not presented itself practically to any of them; but much information has been courteously supplied to us bearing indirectly on the subject.

Thus Portugal and Holland hold that a slave seeking refuge on board a ship of war in the territorial waters of a foreign state would have to be surrendered to the authorities of such state on their request.

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Germany and Italy consider that a ship of war is part of the national territory, and the Italian Minister for Foreign Affairs states, that according to Italian legislation there can be no doubt "that a slave who might take refuge on an Italian ship, "considered by his government as a continuance of the national territory, whether on the high seas or in territorial waters, must be considered as perfectly free.' Your Majesty's Minister at Washington reports that the United States Secretary of the Navy gave it as his opinion "that at present no officer would for a moment think of giving up a slave who had taken refuge on board his vessel in order "that he might return to his condition of slavery."

The Russian naval regulations contain a general prohibition to the officers of the navy against receiving any strangers on board their ships, but instruct them to act according to their own judgment and on their own responsibility in especially important cases, and state that the prohibition to receive strangers does not extend to the saving of persons in distress, of whatever nation they may be.

In France a wide discretion is left to the naval officer, as stated in the following letter of the Duc Decazes, Minister for foreign affairs:

MONSIEUR L'AMBASSADEUR,

The DUC DECAZES to LORD LYONS.

Versailles, le 21 Mars 1876.

VOTRE Excellence, par sa lettre du 8 de ce mois, m'a exprimé le désire d'avoir communication, pour les transmettre au Gouvernement de Sa Majesté Britannique, des documents relatifs à la protection des esclaves fugitifs qui cherchent un refuge à bord des bâtiments de guerre Français, soit en pleine mer, soit dans les eaux territoriales d'un état étranger.

Je m'empresse de vous faire savoir qu'il n'existe point d'instructions spéciales sur ce point dans la Marine Française.

Les difficultés que peut soulever la situation des esclaves fugitifs dans leurs rapports avec nos navires restent soumises aux principes généraux du droit des gens, chaque commandant devant s'efforcer d'en faire l'application la plus equitable, suivant les circonstances dans lesquelles des questions plus ou moins délicates viennent à se produire.

Lord Lyons,

&c. &c.

Agréez, &c.

DECAZES.

Spain, Belgium, Denmark, and Norway and Sweden give us no information whatever on the case of a slave taking refuge on board a ship of war in foreign territorial waters.

II.

The next question which we have to consider is

"Whether any engagements into which this country has entered bear upon "such questions.

We have examined all the treaties having reference to slavery, which are still in force as between Great Britain and foreign states.

We find that there are no engagements which would interfere with the reception of fugitive slaves on Your Majesty's ships of war, with the exception of the Treaty of 1865 with Madagascar.

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