WESTERN CIRCUIT.

July 24.

(Before Mr. Baron Platt.)

TRIAL OF THE SPANISH PIRATES.

Janus Majaval, Francisco Feriera de Santo Serva, Manuel Jose Alves, Florenzo Ribiero, Juan Francisco, Jose Maria Martinos, Antonio Joaquim, Sebastian dos Santos, Manuel Antonio, and Jose Antonio, were indicted for the wilful murder of Thomas Palmer on the high seas, on board a vessel called the Felicidade, on the 2nd of March last, by Janus Majaval striking and stabbing him with a knife, giving him a mortal wound upon the belly, of which he died, the other prisoners being present at the time of the mur der, aiding him and assisting him. There was another count in the indictment, charging the prisoners with having thrown Thomas Palmer out of the vessel and drowning him. The prisoners were all dark-looking men, and appeared to be well fitted for the trade in which they were engaged.

Mr. Bellamy, of Plymouth, was sworn as interpreter. He was directed to explain to the prisoners, who were chiefly Portuguese, the different proceedings as they went

on.

Mr. Godson, counsel for the Admiralty, was specially retained; and Mr. Cockburn, Mr. Haywood, and Mr. Poulden were counsel for the Crown.

Mr. Serjeant Manning appeared for Ribiero, Francisco, Martinos, Joaquim, Manuel Antonio, and Jose Antonio, and Mr. Collier appeared for Majaval, Serva, Alves, and Santos.

The prisoners pleaded "Not Guilty," and a jury de medietate (or half English, half foreigners)

was sworn.

Mr. Godson addressed the jury on behalf of the prosecution, noticing the importance of the case, and laying before them a narrative of the transactions it involved

the capture of the Felicidade by the Wasp, and the transfer of the crew, excepting Cerquiera and Majaval, to the latter vessel; the chase of the Echo by the Felicidade, her capture, with upwards of 400 slaves on board, the transfer of the captain and part of her crew to the Felicidade, the division of the English crew, of one part of which Lieutenant Stupart took the command in the Echo, leaving Mr. Palmer, a midshipman, in command of the other party, on board the Felicidade. The learned counsel then proceeded to narrate the horrible massacre of the latter party by Serva, (the captain of the Echo,) and his followers and Majaval, which will be found in a more striking form in the evidence given subsequently. Of the witnesses, it seemed well agreed that Cerquiera was not a consenting party to the transaction; he not only refused to accede to Serva's proposal, but threatened to reveal the design if it were persevered in; and during the acting of the tragedy he relieved the Englishman at the helm to enable him to go to the assistance of his comrades; and he moreover revealed the transaction to the commanding officer of the Star at an early opportunity. Another witness was a negro slave, who was in a boat towed at the stern of the vessel, and who therefore took no share in the transaction;

there was also another negro on board the Felicidade, who, although threatened, refused to go on deck, and was therefore a competent witness. The other witnesses were officers and seamen in Her Majesty's service. After the Felicidade had been thus taken possession of, she sailed up to and fired upon the Echo, which was in sight the whole time, in the hope of compelling her to surrender, or of enabling Serva's brother-in-law and his men to rise and overpower Lieutenant Stupart and party. This failing, the Felicidade bore away, and three days after was chased and captured by Her Majesty's ship Star. Numerous wounds on the persons of the Brazilian crew, which were very awkwardly accounted for; the discovery of a book, Herschel's Astronomy, with Lieutenant Stupart's name on the cover, some bass, serge, shirts, &c., such as are used in the navy, marks of blood upon the deck, gave rise to suspicion. At length Cerquiera and the blacks, encouraged by the kind manner of the English officers, revealed the tragedy which had occurred. The prisoners were put in irons, and sent to England for trial. The Felicidade after this, her second capture, was sent to Sierra Leone for adjudication, under the command of Lieutenant Wilson; on her way thither she was capsized by a sudden squall, and her commander and the survivors of her crew, after enduring the most horrible sufferings for twenty days on a raft, managed to reach land. This being the end of the Felicidade, no legal condemnation had taken place with respect to that vessel. The learned coun

sel then proceeded to comment upon the legal points of the case. The learned counsel said—Gentlemen, these are the facts upon which the charge will be made that these men committed murder, according to the English law. You will observe, that an Englishman, Thomas Palmer, has lost his life by violence. The law of England is, that he who commits that violence is guilty of murder, unless he can show some reason why it should be reduced to some lower offence, or why the act itself should be justified. The fact of their having killed Mr. Palmer is proved by the prisoners themselves; the proof must come from them, for not one of his companions was left alive to tell the tale. Would it be sufficient for them to say that it was their vessel? I will not anticipate that defence: but they were not in the Echo. Would it be sufficient for them to say, that they were in custody illegally? and that being in custody illegally, they had a right to attempt their rescue, to attack and murder the captors in cold blood, when they were wholly unprepared for the assault, and had no right to anticipate it? for being subjects of a country at peace and amity with us, no war going on at the time, the prisoners had no right to take any private vengeance, if they had received a public wrong. And suppose, for a moment, that they were illegally in custody, I shall contend that they were not even in that case justified. But I will not rest my case on that. Gentlemen: between us and Brazil and Portugal there is a treaty, which was duly ratified, and afterwards embodied in an Act of Parliament; 7th and 8th of Geo. IV,

cap. 74. It is intituled "An Act to carry into execution a Convention between His Majesty and the Emperor of the Brazils, for the Regulation and final Abolition of the African Slave Trade." The learned counsel read the preamble of the Act, in the convention referred to, which was signed at Rio Janeiro, November 23rd, 1836. By this convention, the Brazilian Government specially stipulated that it should not be lawful for its subjects to be engaged in or carry on the African slave trade, and that the carrying of it on should be deemed to be, and be treated as piracy. Here, then, we have an Act of Parliament, which, in a British court of jurisprudence, I hold to be the best evidence of a convention. When you have the testimony of Parliament, consisting of Her Majesty and Lords and Commons, that there is such a convention, I hold that no other evidence of the existence of the convention is required. (The learned counsel then recited the clause of the Act, which set forth the ratification of the convention; three years after that time, long since passed, it became piracy in any Brazilian subject to be engaged or concerned in the carrying on of the African slave trade under any pretext.) However, that there may be no question about it, I have the original treaty signed by Don Pedro.

I have the means of proving the seal to the treaty. Having thus fortified myself; having the proof in the Act of Parliament, but, for better caution, having the original treaty here, let us now see how these men can be excused in any manner whatever. They were committing piracy, and the man who commits piracy is, in familar

language, a robber of the sea, to be taken up as much upon the sea as any robber upon the land. Now these persons, taken from the Echo and put on board the Felicidade, having come from the Brazils, their adopted country, were therefore to be treated as its subjects; and, therefore, being engaged in the slave trade, they were committing an act of piracy. And with respect to those on board the Echo, there can be no doubt about it, for slaves were found on board the vessel; and with respect to the Felicidade, the proof is sufficiently strong, for there they had the slave deck, and all the means for carrying on the slave trade, in some way or other, or in some manner or other. Therefore, there can be no doubt that the crew of the Felicidade was just as liable to be seized as that of the Echo itself. It is due to you, that I should bring before you this treaty. The prisoners must have known that they were doing wrong, and that they were taken properly into custody. The very violence which they resorted to proves this, in attacking every Englishman on board, who were merely taking them to have their offences adjudicated. If they had not done wrong, they would have been discharged upon their arrival; but feeling that they had, they rose upon the Englishmen in the manner I have said.

Lieut. R. D. Stupart.-I am a lieutenant in the Royal Navy. I served in February last in the Wasp, under Captain Usherwood, in the Bight of Benin, near Lagos.

On the 27th of February a strange sail was seen, and I was ordered in pursuit. About eight o'clock at night we came up with the vessel, which was a Brazilian

schooner fitted for the slave trade, with a slave deck over the cargo, made of loose planks. She had more water than was necessary for her crew, and farina and flour. She had twenty-eight men, and Cerquiera was captain. When the Wasp came up, the crew of this schooner, which was called the Felicidade, were sent aboard the Wasp, and the schooner was manned by fifteen English seamen. Six of the crew were sent back that night, but eventually Cerquiera, and Majaval (the latter one of the prisoners), were only left on board. Next day I went on board with sixteen men, and Mr. Palmer; we had five cutlasses and two pistols, we then parted from the Wasp. On the 1st of March I saw a brigantine to windward, which I chased, and came up with her next day. I went on board, and found her to be a Brazilian schooner, the Echo, with 430 slaves on board. All but Serva, the captain, knew me. Serva's nephew, Dos Santos, was acting as her commander when I boarded her at various previous times. She had a crew of twentyeight men. I had sixteen men when I had the two vessels. I put Mr. Palmer on board the Felicidade, where each of his men had an iron bar, and one had a cutlass. I went on board the Echo. I left James Mullings, Edward Marshall, James Mitchell, Thomas Barfoot, James Beynon, Gould, and two Kroomen; these were afterwards joined by Godding, with Mr. Palmer. I commenced feeding the slaves in the Echo; they were very much in want, of water particularly; and while doing so, I saw the Felicidade come towards us with Brazilian colours flying. I saw Serva and Cerquiera on

board. She hailed to heave to, but I did not, and she fired twice into us with grape, but no one was hurt. She then sheered off, and sailed away. I left my uniform, which was wet, my sextant, two or three books, and other things in the Felicidade, but I only saw one book afterwards, Herschel's Astronomy, which was sent to me by Commodore Jones. Four prisoners from the Echo were sent on board the Felicidade with Mr. Palmer.

Cross-examined. If I had taken the crews to Sierra Leone, they would have been landed and examined, but they would not have been punished. The expenses even would have been paid of their living at Sierra Leone.

Joaquim Antonio Cerquiera was next called. This witness was a most forbidding-looking man; short, slight, and very dark-coloured. His evidence was taken through an interpreter. He said, I am an inhabitant of Bahia. I had the command of the Felicidade. She was fitted out for smuggling (contrabando). I had no cargo out but water and provisions, and was to bring back slaves. She was fitted out to take in slaves; and had a crew of thirty. Majaval was cook. The witness then stated, that on arriv ing on the African coast they perceived the Wasp, and stood off several times, until they were at length captured by the boats, and the crews transferred as stated by Lieutenant Stupart. When we parted from the Wasp, this officer in court (Lieutenant Stupart) came on board with the officer who is dead, and several Englishmen. A day or two after he saw a brigantine (the Echo), which was captured the next day by Mr. Palmer in the

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boats. The young officer came back next day, and brought twelve of the crew of the brigantine with him. All the prisoners now present, except Majaval, were then brought on board the Felicidade from the Echo. They were put down into the forecastle, with a man as sentry over them, except Serva and his brother-in-law, who were allowed to remain on deck. That night I had no conversation with the prisoners. Next morning Serva and his brother-in-law bade me good morning. Serva said, Is there any coffee on board?" I said to him, No, but I have tea." A boy was then sent by Serva for some coffee. I, Serva, Serva's brother-in-law, and Lieutenant Stupart sat down to coffee. When the officer went away from the after part of the deck, where coffee was served, he went below, and I, Serva, and Serva's brother-in-law, remained. Serva said to me, "We have something here to do. I have four men I can put confidence in, to kill all the Englishmen, throw them overboard, and then to take the brigantine with the schooner." I answered to him, "Don't you recollect, you are here among English cruizers, crossing to and fro; that a steamer is cruizing, and also the Star?" Serva said, "You are a man in want, and void of sense." Serva said to me, "I have four men I can put confidence in; part of the English are drunk." I then said, "Do you know you are among the cruizers, the Star, the steamer, and others?" Serva then again said, "You are a man wanting spirit." I said to him, "If you do not give over those words I shall make it known to the officers." Serva replied, "He would not do anything of

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the kind, or speak of it." The lieutenant then went into the boat, and Serva's brother-in-law went with him, and they went on board the Echo. Three Englishmen, two Kroomen, and the quarter-master were now on deck. The officer, who is now here, came back with one Englishman and seven other people in the boat. The officer who is dead is the one who came on board; I heard him called Mr. Palmer. The officer went and bathed himself, and let the boat with the seven men in her drop astern of the schooner by which she was towed. The young officer then sat down abaft, and was wiping himself. One Englishman was at the helm; I do not know his name; another was stationed forward, another was lying down forward, another was in midships, and one was sentry alongside the hatchway. Three were asleep, and one of these was very tipsy. The sentry by the hatchway was one of those asleep. The quartermaster was talking to Mr. Palmer. There were two Kroomen on deck belonging to the Wasp. At that time Serva went to the hatchway, and called the men to come up to commit murder. I caught Serva by the hand; I went from aft over to him, when I saw him at the hatchway, and said to him "Don't you be foolish." Serva was still calling the men to come up. Serva said, "Come up here, men; come up." When I saw them coming up, I made a sign to the quartermaster and officer. The quartermaster then caught a bar of iron, struck the prisoner Alves on the head, caught him up, and threw him overboard. Alves fell on the starboard side of the deck. The quartermaster struck at him as