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![handle is hein.slavery/ssactsengr0418 and id is 1 raw text is: THE DONNA MARIANNA
been given by the advocates for the captors ; I can have no rational doubt of her
real character ;-and, under the authority of the case of The Amedie, I condemn
her and her cargo.
DONNA MARIANNA. June 3, 1812.-Where a claim is given for a ship engaged
in the slave trade on the ground that the property belongs to the subjects of a
country which still permits that trade, the Court has a right to enquire into
the title of the ship, and the onus probandi lies upon the parties setting up
the claim.
This case was heard upon an appeal from the Vice-Admiralty Court at Sierra
Leone; in.which court the ship had been condemned, together with her cargo.
It appeared that the ship was originally an American vessel, and had been purchased
at Liverpool by Macdowall and Co. of that place, who, in August 1809, sent her,
under the command of a person of the name of Vauralst, to Madeira, with a cargo
of culm, and from thence the ship proceeded to Pernambuco. At Pernambuco
the ship was said to have been sold to De Silva, a Portuguese merchant, by whom
she was claimed as Portuguese property. From Pernambuco the ship sailed under
Portuguese colours to Bahia, with some [92] wine on board (but whether the same
wine that she had brought from Madeira did not clearly appear) ; and having there
taken on board a variety o' goods assorted for the slave trade, she proceeded to
Cape Coast, where she was proceeding to engage in the slave trade, and was seized
at anchor. Vauralst, the master, to whom the command of the vessel had been
originally entrusted at Liverpool, still continued on board, but, as asserted, only
in the capacity of a passenger, for the purpose of delivering the wine at Cape Coast.
The Court condemned the ship, as being a British vessel engaged in the slave
trade ; and reserved the question respecting the -cargo ; to the condemnation of
which it was objected that the Acts of Parliament (46 G. III, c. 52, § 9; 47 G. III,
c. 5, § 2) applied only to goods laden in a port of Great Britain, or the British
dominions, and had no reference to goods laden elsewhere, though they might be
British owned.
Judgment as to the ship.
Sir W. Scott : The first question is, whether this Court is at liberty to enquire
into the title of this ship, which was at the time of capture navigating under the
Portuguese flag, and has been claimed as Portuguese property. It is obvious
to remark, that if no such authority vests in this Court, there must be an end of
the operation~of the Act of Parliament. It cannot be considered as any hardship
upon the subjects of those countries which still carry on the slave trade, that it
should possess such a power. It can be no unconstitutional breach of the law of
nations to require, that where a claim is offered on the ground that the [93] property
belongs to the subjects of a country which still permits this trade, the burden of
giving proof of the property should lie upon those who set it up; and peculiarly
so in the case of a Portuguese claimant, whose Government, though it has not actually
abolished, has disavowed the trade; when it is so universally known that the
slave trade has been abolished by Great Britain, and when it is not improbable
that attempts may yet be made to carry it on under disguise. It would be a
monstrous thing, where a ship, admitted to have been at one time.British property,
is found engaging in this traffic, to say, that, however imperfect the documentary
evidence of the asserted transfer may be, and however startling the other circum-
stances of the case, no enquiry shall be made into the real ownership. Here are
on board this vessel only papers of mere form, and which are in contradiction with
each other, leaving the whole transaction of the transfer in great doubt and obscurity ;
and if the Court were to be prohibited under such circumstances from enquiry into
the reality of the Portuguese title, one sees how easily the provisions of the Legislature
would be defeated. It would go to repeal the Act of Parliament and the principles on
which it is founded. That in point of fact this is really a British-owned vessel I
have little doubt, as I think there are appearances enough to shew that the asserted
transfer to De Silva was only colourable. The ship comes to England, and is there
purchased by Macdowall and Co. of Liverpool, from whence she is dispatched on
her outward voyage with fetters on board ; which, as it appears to me, were put
on board at Liverpool ; the double stanchions were admitted to have been taken
on board there; and she is dispatched under the command of Vauralst, who is
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I DODS. 92.](ViewImageLocal?handle=hein.slavery/ssactsengr0418&div=1&collection=&method=preview&ext=.png&size=3)