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![handle is hein.slavery/ssactsengr0478 and id is 1 raw text is: THE AGINCOURT
Adams and Lushington, contra.-Upon general principles of justice the foreign
claimant is entitled to compensation. The seizure was illegal ab inito ; it was made
in a time of profound peace, and when no convention had made even a limited right
of [269] search allowable. The treaty of November 1817, between this country and
Spain, confirms all seizures made before the ratification of the treaty ; but this
capture was made in December, and, therefore, subsequent to that ratification.
The instructions that were given to Lieutenant Hagan, are similar to those produced
in the Le Louis, and we claim restitution with costs and damages on the principle
established in that case : they are not vindictively sought, but they are not on that
account the less due ; and if the seizor has been misled by any accidental error of
the authorities at Sierra Leone, the Government at home will indemnify him. They
cited Madrazo v. Willes, 3 Barn. & Aid. 353.* 1
Judgment-Lord Stowell.-The two propositions are difficult to be reconciled:
1st, that this British officer must be protected ; 2d, that the foreign claimant is
entitled to sue him for compensation. But how can I give a sentence of restitution
with costs and damages as against this officer, when Government has the property in
its own hands ? He has not the means of restitution ; Government has admitted the
legality of the capture, by taking the property from him ; and it is now discovered
that the Act of Parliament does not operate in the case. It is not, therefore, peculiar
to this officer to have erred in the transaction. Officers, it is well known, whose
zeal frequently outruns their prudence and knowledge, are easily stimulated to [270]
enterprises of this kind by persons at Sierra Leone, who give advice much beyond
their authority. The captor in this case seems to have been so misled.
It has been said, that the Government of this country will indemnify him, and that
a petition has been presented with that object ; but nothing satisfactory seems to
have resulted from it ; for it was met with this reply-that Government could not
take the matter into consideration, while it was pending in this Court. Now, if my
sentence could be given upon a certainty that Government would indemnify him,
I should feel it consistent with justice to accede to the prayer of the claimant ; but
if my sentence should involve this British officer personally, I should very anxiously
abstain from so doing, as long as I have any apprehension that he would be left to
shift for himself. I should wish some further application to be made to Government,
and some more specific and definite answer given, if not, I shall certainly feel myself
bound to protect this officer. But if it is necessary to give, for form's sake, a sentence,
as prayed, I will do it-but not without knowing the effect.*2
[271] AGINCOURT -(Mahon). July 13, 1824.-On a charge of ill-treatment
and undue correction, a justification-partly on the ground of an offence recently
committed, and partly on account of antecedent offences,-not sustained.
[Distinguished, The Sylph, 1867, L. R. 2 Ad. & Ecc. 27; R. v. City of London
Court (Judge), [1892] 1 Q. B. 310.]
This was a proceeding instituted against the captain of an East Indiaman, in
the private trade, for several acts of oppression and cruelty on the return voyage
from Madras to England. The.ship was of the burden of 440 tons, and had on board
a crew of thirty-three men, and eighteen passengers.
The cause was argued by Lushington and Haggard on behalf of the mariner;
and by Phillimore for the captain.
Judgment-Lord Stowell: This is a complaint brought by John Thompson, a man
of colour, against James Mahon, captain of the Agincourt, a ship in the East
India private trade, for ill-treatment committed in three different acts on the
voyage to England.
The plaintiff was shipped on the l1th of April 1823, at Madras. He asserts in
his libel that he was hired as cuddy cook (that is, cook for the captain and passengers,
who messed in an apartment denominated the cuddy), but that in the course of the
voyage he was turned out of his employment as cook, and forced to serve as a mariner
* 1 See also Forbes v. Cochrane, 2 Barn. & Cress. 457. The slave abolition laws
are consolidated by 5 Geo. IV, c. 113.
* 2 The claimant has since accepted a compensation, which was directed to be
paid under a warrant from the Lords Commissioners of His Majesty's Treasury.
1 HAGG. 269.](ViewImageLocal?handle=hein.slavery/ssactsengr0478&div=1&collection=&method=preview&ext=.png&size=3)