SIERRA LEONE. (Spain.)

No 32.-Mr. Secretary Canning to His Majesty's Commissioners. GENTLEMEN, Foreign Office, May 29, 1824.

I HAVE received, and have referred to His Majesty's AdvocateGeneral, your Despatches of the 20th of November, 1823, and 20th of January, 1824, relating to the Case of the Spanish Schooner, Fabiana, sent in to Sierra Leone by Lieut. Gray, commanding two boats of His Majesty's Ship Owen Glendower.

The King's Advocate has reported, that the detention having been made by a competent Officer, and the declaration, which was omitted, not being enjoined to be given in all Cases, but only where held to be necessary, the circumstance that the captured Vessel was sent in for adjudication by the Subordinate Officer, though an irregular act, was not so irregular but that you might have proceeded to adjudication. And The King's Advocate further points out, as what he holds to be the sound construction of the Treaty, that, although the Government may be answerable for losses occasioned by deviations from the Treaty, still every deviation does not necessarily invalidate a capture.

Under these circumstances, and in this view of the Case, it appears to me, that you should rather have proceeded to adjudication, than have suspended your proceedings, and ordered the Fabiana to be sold; and you will, therefore, act upon this opinion in this Case, so far as the circumstances will allow of it, and on similar occasions.

His Majesty's Commrs.

I am, &c.

GEORGE CANNING.

No. 33.-His Majesty's Commrs. to Mr. Secy. Canning.—(Rec. June 7.) SIR, Sierra Leone, February 23, 1824. IN our Despatch of the 10th of September last, we had the honour to state, for your information, that a Schooner called the Conchita, was captured on the 16th of June, 1823, in Old Calabar River, by Sir Robert Mends, commanding His Majesty's Ship Owen Glendower; that she was from Saint Jago de Cuba; had a Danish Flag; that her log-book, which was in the Spanish language, stated her to be a Danish Vessel, but that the Captor, Sir Mobert Mends, declared her to be a Spanish Vessel; that the Papers alleged to belong to her were tendered to the Court on the 29th of August last, and that the Proctor for the Captor prayed immediate proceedings against her; but that, as neither the Vessel nor any Person who could properly depose to particular facts relating to her detention and to her Papers, had been sent to Sierra Leone by Sir Robert Mends; and, as no proper reason was assigned why she

was not sent to this Place for adjudication, we did not think it right that proceedings should be instituted against her, until her arrival, or until her absence should be properly accounted for.

We have now, Sir, the honour to state, for your further information in this Case, that, on the 9th of December last, the Principal Clerk in the Registry Office reported to us the arrival on that day of the Conchita in the Port of Freetown; that she had no Slaves on board, and was of the burden of sixty tons. On the 20th of December following, Mr. Macauley, as Agent of Commodore Sir Robert Mends and the Officers and Crew of His Majesty's Ship Owen Glendower, after alleging the arrival of the said Schooner, prayed that the usual Monition might issue. Mr. Macauley brought in two Declarations of Sir Robert Mends, one relative to her capture, and the other to the necessity of landing the Slaves from on board her at Cape Coast Castle. In the first of these Declarations, dated off Old Calabar River, the 20th of June, 1823, Sir Robert sets forth, that "on the 13th day of June, 1823, being close to the entrance of Old Calabar River, which is situated in 4° 31" North Latitude, and 8o 38" East Longitude, he despatched the Boats of the Owen Glendower up the said River, under the command of Lieutenant Clarkson; that upon arriving in the River, the Lieutenant received information of a Spanish Schooner, carrying on the Slave Trade, being in one of the Creeks, whither she had repaired upon receiving notice of the approach of the Boats, for the purpose of concealment, and that her Captain was then on shore actually employed in purchasing Slaves; that on the 16th of June 1823, the said Lieutenant Clarkson found in a place called the Great Quaa Creek, after a long search, a Schooner, from on board of which a great number of Persons, the majority of whom were black, jumped over board and swam to the shore; that upon boarding her, she was found completely deserted by her Crew; but, in about four minutes afterwards a canoe came alongside, in which were three Slaves who had been purchased by her Captain; and on the following day fifty-five Slaves were sent off by Duke Ephraim, Chief of the before mentioned River of Old Calabar, as forming part of the cargo of the said Schooner, which he declared to Lieutenant Clarkson to be a Spanish Vessel, and that these Slaves had been bought by her Captain from him; that she was furnished with double Coppers for cooking, manacles, shackles, tubs, and other apparatus usually carried by Ships employed in the Slave Trade; that a platform was found in the hold; that she had on board a good quantity of water, and was in every respect fitted and prepared for receiving a cargo of Slaves: that from the Papers and Chart found on board, which were all written in the Spanish Language, it appeared that she was called the Conchita; that she sailed from the Port of Saint Jago in the Island of Cuba, on the 28th day of March 1823,

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and arrived at Old Calabar River on the 4th of June following; and, that the only Colours found on board were a Danish and American Ensign."

In the other Declaration, dated at Cape Coast, the 6th of August 1823, Sir Robert Mends sets forth that "the Negroes captured on board the said Schooner were removed on board the Owen Glendower for cure, the greatest part of them being in a sickly condition, and that after the loss of the Maria La Luz, a Spanish Schooner, also captured by the Owen Glendower, the Negroes were removed on board her for a safe conveyance to Sierra Leone; but that after having been in the Owen Glendower six weeks, the major part of them became unhealthy; and, being then unvoidably detained at Cape Coast for the defence of the Forts against the Ashantee Army, his, Sir Robert Mends's, return to Sierra Leone became altogether uncertain; and that, under those circumstances, it was absolutely necessary to land them in the Castle, to be taken care of by the Government, as their longer detention on board would be attended with greater loss amongst them, and the extreme danger of spreading the contagion through the Ship."

On the 24th of December, the attestation of Lieutenant Clarkson with the Conchita's Papers were brought in, and the usual Monition issued, calling upon all persons in general, pretending any right, title, or interest, in the said Schooner, to appear and make legal claim for her, and the same was returned on the first of January following as duly served.

On the 15th of January following, at the Petition of the Proctor for the Captors, the Case was heard, and the deposition of Lieutenant Clarkson of His Majesty's Ship Owen Glendower, and that of two seamen of the Schooner Maria La Luz, exhibited in proof of illegal Slave-trading. The first of these depositions alleged that "Lieutenant Clarkson having been deputed by Commodore Sir Robert Mends in the command of the boats of the Owen Glendower up the River Old Calabar, on the thirteenth day of June last, he, Lieutenant Clarkson, was informed there was a Spanish Schooner slaving up one of the Creeks; and on proceeding up the Great Quaa Creek, he found a Schooner lying at anchor in a narrow part of it, the mangroves not being more than twenty feet distant from either side of her; that on rounding a bend in the Creek, close to where the said Vessel was lying, they first perceived her, and on their appearance, they saw a great many persons, principally black, jump overboard and gain the shore; that one child (black) was drowned just as they were endeavouring to rescue it; and that the rest, white and black, escaped into the surrounding woods; that on going on board they found her to be the Spanish Schooner, Conchita, completely fitted for Slaves; with her platform laid; her water-casks full; her yams and provisions all on board.

That her Slave coppers were dirty, and from their appearance had been used in cooking that same day. That her poopoo-tubs, which in Slave Vessels are used for the Slaves to pass their excrement into, were dirty, and had human excrement in them; that her rice-kids and wooden spoons were dirty, and were evidently in use; that from these circumstances, and the further one of the filth and dirt on her platform, and the stench in the hold, deponent was certain that Slaves must have been on board, and removed a very short time before she was boarded; that they immediately got her under weigh, and were proceeding down the Creek, when three Slaves were brought on board as belonging to her, without any application being made for them, or any communication having taken place with the shore; that on deponent making an application to Duke Ephraim for the Slaves, he sent off to deponent fiftyfive, stating they were all he could find. That the Officers and Crew having jumped overboard, as aforesaid, or been on shore previously, never were under his control; that they had an opportunity, if they had chosen it, to have embarked on board the said Schooner, as she remained at Duke Ephraim's for forty-eight hours; and deponent has heard, and verily believes, the Master of the said Schooner destroyed himself three days after the Capture."

"that they were

The two seamen of the Maria La Luz deposed, seamen in and on board the Schooner Maria La Luz; that they knew the Schooner called the Conchita, and that they immediately recognised her on seeing her in company with the English Frigate Owen Glendower; that they saw the Conchita in the month of March last, at the Port of Saint Jago, in the Island of Cuba, where and when she was fitting out for a voyage to the Coast of Africa for Slaves, at the same time with the Schooner to which these deponents belonged; that the Schooner Conchita was commanded by a Spaniard of the name of De Lima; and deponents further said, that they were often in company with the Crew of the said Schooner Conchita, who were all Spaniards; that she hoisted Spanish Colours; that when they saw the said Schooner in the Calabar River, they immediately knew her again to be the same Vessel that had been at Cuba, fitting out for a voyage to the Coast for Slaves."

On this evidence, and the absence of any Claimant, the Proctor for the Captors prayed condemnation of the Vessel and Emancipation of the Slaves.

In expressing our sentiments upon this Case, we adverted to the length of time that had intervened betwixt the capture of the Conchita and her arrival in this harbour. The employment of the Vessel in this time had not been explained. We were of opinion that the Conchita ought to have been sent hither upon her capture, with all convenient despatch. It appeared to us that the Captor, by keeping the Vessel for so long a period, had not acted conformably to the first Article of the

Instructions for the British and Spanish Ships of War employed to prevent the illegal traffic in Slaves, annexed to and forming part of the Treaty.

As the absence of a Claimant could not, under the Treaty, be reason for the condemnation of the vessel, the only point for our consideration was, whether sufficient proof had been given by the Captors that the vessel had been illegally engaged in the traffic in Slaves, and whether she had fallen under the provisions of the Treaty which rendered her liable to condemnation.

The Master and Crew of the Conchita had not been sent hither as witnesses in the Case. It was alleged that they had fled from the vessel on the approach of the boats of the Owen Glendower. This allegation accounted for their absence, and was a reason why their evidence had not been furnished to the Court.

In the unavoidable absence of the Master and Crew of the vessel, we should have been satisfied if the evidence of the Slaves who were stated to have belonged to the Conchita had been brought forward in proof of the embarkation of a Slave, or Slaves, for the traffic, prior to the detention of the vessel.

It had been alleged that when the boats of the Owen Glendower were approaching the Conchita, a number of Persons, the majority of whom were black, jumped overboard. It was also alleged that the vessel was in that state, at the time when the Captors got on board, which shewed that Slaves had recently been in the vessel. And the inference raised was, that the black persons who had been seen to jump over-board were the Slaves who had caused the vessel to be in the state in which she was found by the Captors.

It would have been very easy for the Captors to have produced some of the Negroes, who had been delivered up to them by the Chief of Old Calabar, as witnesses to prove what was now only matter of inference. If any of these Negroes had been on board of the Conchita, as was inferred, previous to her detention, the point in question would be set at rest, and the vessel would be liable to condemnation. these Negroes, however, had been landed at Cape Coast. It was not asserted that they were all sickly, and could not be sent hither. We had, therefore, a right to suppose that it would have been easy for the Captors to have produced some of them as witnesses in the Case.

All

The only material points in the Case that we found proved, by other evidence than that of the Captors, were the Spanish character of the vessel, her Slave-trading out-fit and designs, and the point of her being hid by her Crew in one of the creeks of the river Calabar, on the approach of the English boats. The two seamen of the Maria La Luz had proved the first and second points. The third point was proved by an entry that was made in a log-book of the Conchita, that was kept in the Spanish language. The proof of these points was material, as

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