Mr. Kelly. Yes, my Lord; I will state what is quite unconnected with the objection I have taken. This indictment charges the prisoner with having equipped a vessel, and shipped goods, in order to accomplish an object, that object being the exercising of the slave trade, and it is framed upon the Act of Parliament of the 5th of George IV, chapter 113. Now, my Lord, by the 2nd section of that Act of Parliament, slave trading by certain persons, and under certain circumstances, is declared to be unlawful. By the 10th section of the Act, it is enacted that if any person shall among others, equip a vessel, or ship goods, in order to accomplish any of the objects theretofore declared to be unlawful, he shall be guilty of a felony. That is the felony charged in this indictment, namely, that the prisoner at the bar equipped a vessel, and shipped goods, in order to accomplish one of the objects declared to be unlawful, namely, that of trading in slaves. Now, the point is this: the charge, supposing it substantiated by evidence, is this—that the prisoner at the bar equipped this vessel, and shipped these goods, in order that they might be used in the slave trade, in order to accomplish the object of trading in slaves at Gallinas, in Africa. The Gallinas is not a British settlement, and is not a British colony, and therefore that species of trading is not declared unlawful by that Act of Parliament; the trading declared by that Act of Parliament to be unlawful must be a trading by British subjects. The trading, in order to be unlawful within the meaning of this Act of Parliament, must be a trading by British subjects; and moreover, at the time when this offence is supposed to have been committed, it must have been a trading at some colony either in Great Britain, or some colony or settlement belonging to Great Britain. That will appear from another Act of Parliament, passed to remedy the defect under the former Act of Parliament; your Lordships will see, that by the 2nd section of the Act of Parliament, the terms are general.
Mr. Justice Wightman. What Act are you upon Mr. Kelly?
Mr. Kelly. I am now on the 5th of George IV. By clause 2, it is provided, “that it shall not be lawful (except in such special cases as are hereinafter mentioned) for any persons to deal or trade in, purchase, sell, or barter, or transfer, or to contract for the dealing or trading in, purchase, sale, barter, or transfer of slaves, or persons intended to be dealt with as slaves,” and to do a variety of other acts which are by that section declared to be unlawful. Now, my Lord, though the words are general, “that it shall not be lawful for any persons to deal or trade in slaves,” the legal effect of them is, that it shall not be lawful for British subjects to deal in slaves; and your Lordship will see by the subsequent Act of Parliament it also means, that it shall not be lawful for British subjects to deal in slaves, either in Great Britain, or in the settlements or colonies of Great Britain, and that that Act of Parliament did not extend to the trading in slaves in foreign states.
Let us take the two points of the proposition. First of all, this manner of trading in slaves by foreigners becomes material in this view: I presume, from the opening and the evidence, it was intended that this ship and these goods should be taken to Gallinas, and there used by the consignees of the vessel and the goods, either by bartering the goods for the purchase of slaves, or selling the goods and with the produce buying slaves. It is not material to consider now how far that is within the Act of Parliament, but the object, which I presume is the unlawful object with which the prisoner at the bar is charged with having dispatched this ship, is the object that the consignees or some other persons at Gallinas should trade in slaves by means of the ship or the goods. I submit that is not a trading in slaves within the 2nd section of the Act of Parliament, that though the words are general, it does not apply to aliens as the consignees of goods, which Martinez were, but to British consignees of goods, which in the Act of Parliament makes the act criminal. If the act be committed abroad, it is not an offence within the Act. A trading in slaves abroad by Rolo, by Martinez, or any persons whose names we have heard mentioned, would not be criminal within the Act of Parliament. The object of the charge is the trading at Gallinas. Now, the trading in slaves any where abroad by an alien is not an offence within this statute.
In order to illustrate this, let me suppose that the vessel had reached the Gallinas, that the consignees of the vessel had employed it for the transport of slaves, and had taken the goods and bartered them for a quantity of slaves, that would not have been illegal within this Act of Parliament. It would undoubtedly have been illegal for any British subject to have done so within any British colony, for this Act is binding on all British subjects throughout the British dominions, but it would not have been illegal for Martinez or any foreigner to deal in slaves in that place; and therefore, supposing it were proved that the prisoner at the bar had dispatched this vessel, that Martinez or Rolo might deal in slaves in foreign parts, that is not one of the objects to which this statute applies, for it applies only to British subjects, and not to foreigners.
My Lords, I need not cite authorities, they are numerous. There is one which is precisely to the point, The King v. Depardo; that is perfectly conclusive upon that subject: that is in 1st Taunton, in which a Chinese sailor who had enlisted, or rather had become a seaman on board one of His Majesty’s ships, committed manslaughter in the Chinese seas, and the question was, whether he was amenable. The great point argued by the late Lord Tenterden and Mr. Burrough was, whether that offence, committed by an alien, was within the Act of Parliament. The prisoner having been convicted, he was afterwards pardoned, on the ground that an Act of Parliament, declaring any particular act to be a felony, such act, if committed abroad by an alien, was not within the Act of Parliament, an alien not being within a British Act of Parliament: so I apprehend no position to be clearer than that a trading in slaves at Gallinas by Rolo, or Martinez, or any person to whom it can be imputed to the prisoner that he intended this ship and goods to be consigned, the trading in slaves by any alien there, would not have been unlawful within this Act of Parliament. If it would, the consequence would have been that a foreigner, Rolo or Martinez for instance, who might be lawfully, according to the laws of their own country or the laws of that place, trading in slaves, might, by engaging in that trade in slaves in the course of this very transaction at the Gallinas, have afterwards been prosecuted here, and convicted here; whereas nothing can be clearer than that these laws against the slave trade can only make the act an offence when it is done by British subjects, who alone are the objects of a British Act of Parliament: therefore I submit that the object being established, supposing the case sought to be established to be so established that Mr. Zulueta dispatched this vessel to enable Martinez to deal in slaves, that is not an object declared unlawful by this statute, for that would have been a trading by aliens who are not within this statute, and the shipping of goods to accomplish that is not within it.
But, my Lord, I go further; I have the case of Depardo, in Russell on Crime, it is not at so much length as in the report in Taunton. The marginal note is, “A manslaughter committed in China by an alien enemy, who had been a prisoner at war, and was then acting as a mariner on board an English merchant ship, on an Englishman, cannot be tried here under a commission issued in pursuance of the statutes 33 Hen. VIII, cap. 23, and 43 Geo. III, cap. 113, sec. 6. 1 Taunton 26.” The principle is perfectly clear, that a person afterwards coming to the country, is not to be treated as if he had previously been a subject of the country; so I say here, that the trading in slaves at Gallinas, or any where abroad by a Russian or a Pole, or any other alien, would not have been within this Act of Parliament at all; it would not therefore be an illegal object within this statute, and the dispatch of goods or a ship to accomplish that object would be no felony.
But, my Lord, the case is rendered perfectly clear by the highest authority, namely, the authority of the Legislature itself, by means of another Act of Parliament, the 6th and 7th of Vict. cap. 98. This Act of Parliament shows that the case is stronger than I have put; and it shows that until the passing of this last Act of Parliament, which took place in the present year, 1843, it was not illegal, within the statute of the 5th of Geo. IV, even for British subjects to trade in slaves, except within the British dominions. The object of this Act of Parliament is to extend the provisions of the 5th of Geo. IV, so as to make it, from some day mentioned in the Act, criminal in British subjects to trade in slaves in any part of the world, in foreign states as well as in the British dominions.
Your Lordship will find this Act recites the 5th of Geo. IV, and recites the second section, to which I have called your Lordship’s attention; “whereby it is enacted (among other things) that it shall not be lawful (except in such special cases as are hereinafter mentioned) for any persons to deal or trade in, purchase, sell, barter, or transfer, or to contract for the dealing or trading in, purchase, sale, barter, or transfer of slaves, or persons intended to be dealt with as slaves,” and so on. Then it recites all the different acts which are declared unlawful by the 5th of Geo. IV, and then it proceeds: “And whereas it is expedient, that from and after the commencement of this Act, the provisions of the said Act hereinbefore recited shall be deemed to apply to, and extend to render unlawful, and to prohibit the several acts, matters, and things therein mentioned, when committed by British subjects in foreign countries and settlements not belonging to the British Crown, in like manner and to all intents and purposes as if the same were done or committed by such persons within the British dominions, colonies, or settlements, and it is expedient that further provisions should be made for the more effectual suppression of the slave trade, and of certain practices tending to promote and encourage it; Be it therefore enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same, that all the provisions of the said consolidated Slave Trade Act, hereinbefore recited, and of this present Act, shall, from and after the coming into operation of this Act, be deemed to extend and apply to British subjects wheresoever residing or being, and whether within the dominions of the British Crown, or of any foreign country,” and so forth: so that your Lordship sees this Act of Parliament clearly shows this, that before the passing of this Act, though it was declared to be unlawful to trade in slaves, the Act meant that it should be unlawful only for British subjects to trade in slaves any where within British settlements or colonies, and that it required the aid of another Act of Parliament to make it unlawful (not for aliens—for as to them it still is not unlawful—but to make it unlawful) even for British subjects to trade in slaves, or do the other acts referred to in this statute. The state of the law was, that aliens might trade in slaves in foreign parts without contravening that Act of Parliament, and that British subjects might trade in slaves in foreign parts without contravening that Act of Parliament. By the Act of the 6th & 7th of Vict. the provisions of the Act of Geo. IV are extended to the case of British subjects: it leaves the case of aliens as it was before, and it makes it unlawful for British subjects to deal in slaves, in the Gallinas for instance—so that your Lordship sees the objection presents itself in this way—this is an indictment for a felony, the felony being the dispatching a ship for the accomplishment of an illegal object, that being the slave trading at the Gallinas; but at the time when this Act passed, it was not illegal for foreigners to trade in slaves at Gallinas. If it is not illegal now, it was not then illegal for British subjects to trade in slaves in foreign countries. The present Act of Parliament renders it illegal for British subjects to trade in slaves in the Gallinas, or any other foreign country; but it was to come into operation only on the passing of the Act in 1843. My learned friend reminds me that it does not come into operation until the 1st of November: but that is quite immaterial; it has no retrospective operation; it was not in operation in 1840 or 1841, when it is stated that this felony was committed by the prisoner.
Before I sit down, I would also take your Lordship’s opinion whether there is any offence proved within the city of London. Your Lordship observes this is not a trial under a section contained under one of the Acts of Parliament, providing that any offence against the statute may be laid in Middlesex. The indictment is not at all framed on that section of the Act of Parliament; it is framed on the common law, except so far as it is governed by the Central Criminal Court, and the venue is laid in London. It must be proved, therefore, that a felony was committed in London. The felony, said to have been committed, is the equipping, dispatching, using, and employing the ship, as charged in one set of counts; and the shipping the goods, as charged in another set of counts. Now, the dispatching the ship was at Portsmouth, and afterwards at Liverpool. It was dispatched at Portsmouth, went to Liverpool, was there loaded and then dispatched, and there all the goods were shipped. So that your Lordship sees the equipping, the using, the dispatching the vessel, any thing that could be done with the illegal object of dealing in slaves, must have been done at Liverpool. Neither the vessel, nor the goods, as far as appears, were ever in London. I submit to your Lordship, on that ground, there is no offence committed in London. Another objection which arises on the indictment I do not trouble your Lordship with, for it will apply in future, if necessary.