Problems between Naval Officers prosecuting their cases in the Mixed Courts and the Commissioners of the Mixed Courts
[Relevant in this instance at Rio de Janeiro, but similar, if not precise situations, also seemed to have arisen at Loando, and Havannah, which to a degree may have brought about Lord Palmerston's Act of Parliament, sending many cases to the Vice-Admiralty Courts from about 1840.]
And perhaps whilst not as complete as I would wish, in part due to the poor handwriting in one or two of the original documents, I would hope the the general gist of the problem will be shown below, being admirably summed up and crafted in the first item by R.-Adm King - brief, but to the point.
Rear Admiral E.D. King,
Commander in Chief of the Brazilian and South African Station
at Rio de Janeiro,
4 Sep 1841,
I have the honour to enclose a copy of a letter from Mr Ousley, [Ambassador at Rio de Janeiro], transmitting an extract of one, from the British Commissioners, at the Slave Court at Rio Janeiro, reflecting on the conduct of Commander Smyth, of HM Sloop Grecian, together with a copy of that officer's reply, which I beg you to lay before the Lords Commissioners of the Admiralty, Their Lordships will recognise in these papers, a force of recrimination which I very sincerely regret, and which cannot fail to be injurious to the Public Service.
This ill feeling has prevailed between the Commissioners and the Officers commanding HM Cruisers against the slave trade, for several years, and originates I am informed, by Reports from various quarters in the too apparent apathy and neglect of the Commissioners in the case of captured vessels brought before the Court for adjudication, and also partly from the domineering conduct and undue influence which they allow on the part of the Brazilian Commissary Judge.
Without allowing myself to be biased towards either side in this very unpleasant state of things, I trust that an end may be speedily put to such unseemly differences between Public Functionaries, and especially that the Officers under my Command, may be relieved in future from unnecessary delays and evasions on the part of those whose particular duty it is to give them every proper facilities and encouragement in their zealous exertions against the Slave Trade.
I have the honour &c., E.D. King, Rear Admiral, and Commander in Chief.
Enclosure to the above letter of 4 Sep 1841, from what would now probably be described as the British Embassy.
10 Jul 1841
To Rear Admiral and Commander-in-Chief.
I beg to forward to you the inclosed extract from an official communication to me from Her Majesty's Commissioners for the purpose of transmission to Captain Smith, whenever that officer returns into the Port, with a request than an opportunity may be afforded him to finish such observations as the tenor of the Commissioners remarks may seem to him to call for.
The interference on my part, to which allusion is made by the British Commissioners was accepting securities offered by the Swiss Consul for the appearance when ever called for, of the two Swiss Passengers detained on board the Castro.
I have the honour &c. W.G. Ousley.
Enclosure to the above letter of 4 Sep 1841, described as an extract from an official letter addressed by H.M. Commissioners to the British Legation dated 22 Jun 1841.
....."We cannot too forcibly be express our concurrence in your observation respecting the expediency of avoiding the infliction of hardship or inconvenience to persons not implicated in slave trade transactions, a sentiment strongly impressed upon us by the sight of the aged in one instance, and in both innocuous individuals referred to in your letters and we cannot but deeply regret as well for the good of Her Majesty's Service in this particular branch of it, as for the general respect which it ought to inspire, that any British Officer, much less one of his experience and standing of the present captain should have been so led away by what we must consider as an excess of zeal untempered by judgment as to hazard a captain, the chief, if not only grounds to give a colouring to which were afforded by those very individuals in whose behalf you yourself in the very beginning did not hesitate to act"......
Her Majesty's sloop Grecian,
20 July 1841.
I have the honour to acknowledge the receipt of your letters of the 15th inst., enclosing me an extract from a letter written by Her Majesty's Commissioners of the Mixed Commission Court of this place, to Her Majesty's Chargé d'Affaires wherein certain reflections or aspersions have been made against me for the detention of the Brazilian vessel Castro, believed by one to have been actively employed in the illicit Traffic of Slaves.
I feel very thankful to you Sir, for the opportunity you have afforded me of vindicating my character against such an unexpected attack from the quarters which I conceived was equally interested with myself in the attainment in the abolition of the Slave Trade.
I see in the extract referred to in your letter that Her Majesty's Commissioners accuse me of an "excess of Zeal untempered by judgment" by which "this particular branch" of Her Majesty's Service (which I take to signify the vessels employed against the Slave Trade), has lost the "general respect which ought to inspire" and this merely because there was un infirm old man and an old blind man passengers on board the Castro.
I cannot but express my astonishment that Her Majesty's Commissioners should wish to exhibit their humane sentiments by thus censuring me.
I must now explain that as soon as I discovered that I was capable of confining him twenty to thirty Negroes, and other fittings for a slave vessel were on board the Castro, it was wholly unimportant to me whom they belonged. I, therefore, without consideration to the numbers of infirm passengers on board the vessel, whose presence could not in any way interfere with my duties in the suppression of the Slave Trade. I conceived myself bound under such circumstances to send her before the Commission Court for Adjudication without feeling conscious of being led away an "excess of Zeal," or acting at all at variance with my "experience" and "standing."
I am exceeding sorry that it is not in my power to accuse the Commissary Judges of any excess of Zeal, in their duty, on the contrary it appears very clearly to me that in every case that I have had before this Court (which, with the Castro now amounts to seven) permitted the excessive sensibility of their feelings to have been most forcibly touched by the individuals concerned in this traffic, a sensibility sensibility on the part of the Commissary Judges most deeply to be regretted, because, most injurious to their branch of the Public Service, and most fatal to the importance and estimation which they ought to command. For the truth of this aspersion I refer to all the officers who, like myself, have had vessels before them for adjudication, and have experienced the unintelligible formalities, obstructions, and detentions, invariably throwing upon the officers every difficulty in their proceedings before the Court, and in short placing us more in the situation of culprits than officers employed in the attainments of the same object as the Commissioners themselves are bound to promote, which is following up with efficiency the suppression of the Slave Trade.
The Commissioners have expressed their opinion "only grounds" which give a colouring to the capture of the Castro were afforded by the very individuals on whose behalf Her Majesty Charge d'Affaires did not hesitate to act. Now it is requisite to explain that slave irons on board the Castro, and other things were the grounds of detention without any references to passengers.
And it must also be explained that when Slave vessels are sent to this Court the Custom is to prohibit all communication between the Shore and the Prisoners until the case is decided, a contrary course always exposes the officers to the severe censure of the Commission Court.
How much more answerable therefore would have been the releasing of the Passengers of the Castro before the Court had allowed it.
On the arrival of the Castro the usual delay took place, before the examination of the witnesses, including the passengers, and, at that period the Court were better aware of the character of the passengers than anybody else, yet the Commissioner took no steps to release them or to alleviate their inconvenience contenting themselves to merely complaining of the suffering of individuals and forcing Her Majesty's Charge D'Affaires to incur the responsibility of releasing them on bond for their appearance if requisite so that every hardship inflicted upon these persons did not proceed from any unjustifiable proceeding on my part but from the apathy with which the Commissioners abstained from deciding on the propriety of allowing them to land after the vessel was brought into the Port.
It was the step taken by Her Majesty's Charge D'Affaires to relieve these people from needless inconvenience in consequence of the apathy of the Commissioners which is intended to be perverted into an additional proof of the impropriety of the detention of the Castro.
With regards to the circumstances that induced me to retain the Castro I have only to refer you to the enclosed copy of my declaration.
From these observations you will perceive that the steps taken by Mr Ousley to release on bond the Passengers of the Castro have been alluded to as a proof of the impropriety of the detention of the Vessel, offering an additional proof of the hostility with which the exertions of Her Majesty's Naval Officers in cruising for the suppression of the Slave Trade are misrepresented.
I have had on former cases to complain of unjust decision of the Mixed Commission Court in the case of the "Reciperador" they appear to me to have not met with the consideration.
In the recent case of the "Alexandre" detained by me : near a twelve month expired before the case was closed and the exact amount of damages I am not yet acquainted with. I was forced into a judicial law ???? in another Court springing out of that case.
At the commencement of the case, when I personally attended the Court the conduct of the Brazilian Judge was not only contemptuous, but insolent and allowed to pass unnoticed by the British Commissary Judge and at this very time the British Commissioners to my appointing Mr Hesketh as my proctor because he refused to be bound to appear in other Courts, although as above stated the cause was pushed into another Court where Mr Hesketh was obliged to act for me to defend a fraudulent demand for specie which was never on board.
For corroboration for the conduct of the Court in this case I have to refer you to the enclosed statement.
From my experience of Rio Janeiro I observed that every British Officer who has had business in that Court has invariably become obnoxious to the Commissionary Judges.
Comparing this general result with the difficulty that officers generally, as well as myself, have experienced I am justified in the aspersion that the more successful Her Majesty's Officers are in cruising against the Slave Traders the greater the asperity with which they are treated in the Commission Court.
It is therefore to this general feeling of the Court and to the individual Commissary Judge in consequence of my complaint on the sentence of the "Reciperador" that I attribute to the unjust observation made on my conduct with regard to the detention of the Castro.
In conclusion I beg leave to call you attention to the fact that in the sentence of the Castro not even an allusion is made respecting irons found on board ; and that this is to the best of my knowledge the first instance of any Commission Court having in defiance of the Treaties and the Instructions not only declined to sentence on such ???????? evidence as slave irons, but even to consider their existence on board as a justifiable cause for detention.
I have the honour &c
W Smyth, Commander.
[Ed. ?????? = unreadable text.
I William Smyth commander of Her Britannic Majesty's sloop Grecian hereby declare that on the 1st day of ???? 1841, being (regret that much of this was unreadable and not really worth copying.
Source : FO 84-385 2 Admiralty 1841 Sept-Dec p. 381
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