CHAPTER V. ENGAGING IN THE SLAVE-TRADE. § 2884. UNDER the act of 1820, it has been held that a person having no interest or power over the negroes, so as to impress upon them the future character of slaves, and only employed in the transportation of them for hire, from port to port, is not guilty. b § 2885. Upon an indictment under the act of April, 1818, against the owner of a slave-ship, the declarations of the master, being a part of the res gesta connected with acts in furtherance of the voyage, and within the scope of his authority, as agent of the owner, in the conduct of the guilty enterprise, are admissible in evidence against the owner. c § 2886. Upon an indictment against the owner, charging him with fitting out the ship, with intent to employ her in the illegal voyage, evidence is admissible that he commanded, authorized, and superintended the fitment, through the instrumentality of his agents, without being personally present. d In such an indictment, it is not necessary to specify the particulars of the fitting out; it is sufficient to allege the offence in the words of the statute. e Nor is it necessary that there should be any principal offender whom the defendant might be aiding and abetting. These terms in the statute do not refer to the relation of principal and accessary in cases of felony; both the actor and he who aids and abets the act are considered as principals. It is necessary that the indictment should aver that the vessel was built, fitted out, &c., or caused to sail, or be sent away, within the jurisdiction of the United States. g An averment that the ship was fitted out, &c., " with intent that the said vessel should be employed" in the slave-trade, is fatally defece Ibid. b U. S. v. Battiste, 2 Sumner, 240. 460. d Ibid. f Ibid. g Ibid. tive, the words of the statute being "with intent to employ" the vessel in the slave-trade, and exclusively referring to the intent of the party causing the act. h § 2887. If, under the act of 20th of April, 1818, sects. 2 and 3, the offence of causing a vessel to sail from a port of the United States, with an intent to engage in the slave-trade, be alleged in the indictment to be on a day now last past, and on divers days and times before and since that day, the allegation is sufficient; for the words, now last past, mean last past before the caption of the indictment, and the words, on divers days and times, may be rejected as surplusage, if the offence be but a single offence. i § 2888. It is not necessary in an indictment under the act of 20th of April, 1818, sects. 2 and 3, for the offence of causing a vessel to sail from a port in the United States, with an intent to engage in the slave-trade, to allege that the negroes, &c., were to be transported to the United States or their territories; or that they were free and not bound to service; or that the defendant was a citizen or resident within the United States, or that the offence was committed on board of an American vessel. It is sufficient if the indictment follows, in this respect, the language of the statute, and is as certain.j § 2889. The offence of sailing from a port, with intent to engage in the slave-trade, is not committed, unless the vessel sails out of the port, under the act of 20th April, 1818, sects. 2 and 3. k One of the phrases in the statute used being "persons of color," it is sufficient in the indictment to use the same words, without more definite specifications of the meaning of the words. l § 2890. The act of 28th of February, 1803, forbidding any master or captain of a ship or vessel to import, or bring into any port of the United States, any negro, mulatto, or other person of color, under certain penalties, where the admission or importation of such persons is prohibited by the laws of such state, does not apply to colored seamen engaged in navigating such ship or vessel.m h U. S. v. Gooding, 12 Wheaton, 460. i U. S. v. La Coste, 2 Mason, 129. j Ibid. k Ibid. / Ibid. m Brig Wilson, 1 Brockenb. R. 423. It is sufficient in the indictment for such offence, to allege that 66 as master for some other person, the name jurors as yet unknown," did cause the the defendant, whereof being to the vessel to sail, &c. n § 2891. The offence under the 7th section of the act of 2d of March, 1807, is not that of importing or bringing into the United States persons of color, with intent to hold or sell, such persons as slaves, but that of hovering on the coast of the United States with such intent; and although it forfeits the vessel and any goods or effects found on board, it is silent as to disposing of the colored persons found on board, any further than to impose a duty upon the officers of armed vessels who make the capture, to keep them safely, to be delivered to the overseer of the poor, or the governor of the state, or persons appointed by the respective states to receive the same. o § 2892. There are various circumstances which will be received to show that a master of a vessel is guilty of participating in the offence of engaging in the slave-trade, however artfully he may contrive to present clean hands and to evade the responsibility of his conduct. Thus, though a freighting voyage of an American vessel, owned and commanded by citizens of this country, from the United States to Rio Janeiro, with orders to the consignee to sell her at a limited price, or to let her for freight, is so far prima facie legal; and though she be chartered by the consignee for a certain time at a reasonable rate, to a Brazilian, with articles to carry no illegal goods, or persons not free, and she proceeds on a voyage to the coast of Africa, laden with rum, cottons, gunpowder, iron bars, brass rings, &c. (such goods as are in demand there, in exchanging for the usual products of that country), the owner of the cargo going with it; yet, nevertheless, this may all be shown to be colorable and false. It may be shown that the full intent and purpose of the voyage was not to exchange this cargo for gold-dust, palm-oil, or any other leading articles of traffic, but for slaves, to be embarked for the Brazils in other vessels; and if the master stands by and sees this exchange and embarkation made, and knowingly has brought the cargo's owner and others interested in the n U. S. v. La Coste, 2 Mason, 129. o U. S. v. Preston, 3 Peters, 65. 925 [BOOK VIII. slave-trade thither, these are fair circumstances for a jury to infer his own guilt. w § 2893. On an indictment charging the master with having received on board his vessel, at a certain place called Lorenzo Marquez, within flow of the tide, on the eastern coast of Africa, a certain negro, &c., with intent to make him a slave, the court ruled that anything done by the master or charterers during the Voyage and near the time when the negro was taken on board, might be shown to prove his knowledge and intent, but nothing of a separate and independent character, done at a different place and on a different voyage, and so distant in time as not to bear on this transaction, where the prisoner would not be likely to come prepared to meet it or rebut it at the trial. x Nor can it be shown what became of slaves put on board another vessel, sailing from that part of the coast, whilst the prisoner and his vessel were there, to the Brazils, unless some connection in interest and business be first shown. The letters and instructions of the owner and consignees to the master, written before the reception of the alleged slaves on board, are part of the res gesta, and good evidence, y and so are notarial letters of manumission of the two negroes taken on board; and any testimony, pro or con. of the master's belief in their authenticity, when he so received them. If the master received on board his ship in Africa a negro, not supposing him to be free, and transports him to Brazil, his guilt would be according to whether he was merely carrying him for another, or an actual participator in the design himself. A passenger in such vessel, however, is not one of the crew or ship's company, within the scope of the statute. In short, to convict one capitally under the act of 1820 both intent and actual conduct, tending to make some one a slave, must be shown; and if a principal be not liable under our laws, another cannot be charged with aiding and abetting him, unless he do it in such a manner as to involve himself as a principal: nor has any act of congress yet made punishable the transportation of any kind of goods to the coast of Africa, irrespective of the intent with which they are carried. z w U. S. v. Libby, 1 Wood. & Min. y U. S. v. Libby, 1 Wood. & M. 221. z Ibid. 225. See People v. Hopson, 1 Denio, 574. 225. z Ibid. 240. § 2894. In conclusion, it should be observed that the illegality of the slave-trade arises from the federal legislation upon the subject, and not from its supposed violation of the law of nations. Although it is now prohibited by the laws of civilized nations generally, still it may be, and doubtless is lawfully carried on by the subjects of those states who have not prohibited it by municipal acts and treaties. It is not piracy unless made so by the treaties or statutes of the nation to which the party belongs. It is true that it was at one time held in one of the U. S. circuit courts, and maintained very learnedly, that this traffic was a violation of the law of nations, a but this was overruled by the supreme court; b and that case, with the decisions of Lord Stowell, c and Bailey, J., and Best, J., d in England, has been considered as settling the question. How far these rulings are overturned by the recent abolition of slavery has not yet been judicially determined. e a La Jeune Eugenie, 2 Mason, 409. b The Antelope, 10 Wheaton, 66, per Marshall, C. J. c Le Louis, 2 Dodson's R. 210. d Madrazo v. Willes, 3 B. & Ald. 353. e See Wh. Con. of L., Introduction. 927 |