Buron v Denman, Esq
| Jurisdiction | England & Wales |
| Judgment Date | 16 February 1848 |
| Date | 16 February 1848 |
| Court | Exchequer |
English Reports Citation: 154 E.R. 450
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
Discussed and applied, Doss v. Secretary of State for India, 1875, L. r. 19 Eq. 509 Applied, Phillips v. Eyre, 1870, L. R. 6 Q. B. 24, Mill v. Hawker, 1874, L. R. 9 Ex 326 affirmed, L. r. 10 Ex. 92 Not applied, Fracis v. Carr, 1900, 82 L. T. 698 reversed, 85 L. T. 144 Adopted, London Corporation v. Cor, 1867, L. R. 2 H. L 262. Referred to, Dixon v. Farrer, 1886, 18 Q B D 45, 6 Asp N C 52.
[167] treat, at bar befork parke, B, alderson, B, rolfe, B, and platt, B BURON v DENMAN, Bay Feb 14, 15, & 1C, 1848-The defendant, a naval commander, stationed on the coast of Africa, with instructions to suppress the slave trade, was lequested by the Governor of Sierra Leone to obtain the hheration of two British subjects detained as slaves at the Gallmas by the son of the King of that country, arid in effecting that object to use force, if necessary He accordingly proceeded to the Galhnas with an armed force, and, having landed at Dombocorro, took military possession of a bartacoon belonging to the plaintift, who was a Spaniard, carrying on the slave trade at the Galhnas He then communicated with the king of the country, and the two British subjects having been released, the defendant concluded a treaty for the abolition of the slave trade in that country In execution of this tieaty, the defendant hred the barracoons of the plaintiff, and carried awav his slaves to Sierra Leone, whete they were liberated Some of the plaintiffs goods, used in the slave tiatfic, were claimed by the krng as forfeited, and delivered up to him , other goods were destioyed These proceedings ha\ing been communicated to the Lords of the Admiralty, and the Secretaries of State foi the foreign and colonial departments, they respectively, by letter, adopted and ratified the act of the defendant Held, hrst, that the plaintiff had a property in his slaves, and might maintain trespass for their seizure, the slave trade not being piratical by the law of nations, and it not appearing that Spain had passed any law abolishing the slave trade puisuant to the treaty embodied in the 6 & 7 Will 4, c 6 -Secondly, that the ratification of the defendant's act by the ministers of state was equivalent to a prior command, and rendered it an act of state, for which the Crown was alone responsible, (Parke, B, dubitante) and that such defence was open under the general issue [Discussed and applied, Doss v Secjetary of State foi India, 1875, L R 19 Eq 509 Applied, Pkilhp* v Eyre, 1870, L R 6 Q B 24 , Mill v Haivlei, 1874, L R 9 Ex 326 affirmed, L R 10 Ex 92 Not applied, Fiaasv Can, 1900, 82 L T 698 reversed, 85 L T 144 Adopted, London Carpoiat-ion \ Cor, 1867, L R '2 H L 262 Referred to, Dunn v Fanei, 1886, 18 Q B D 45, 6 Asp N C 52] Trespass The first count of the declaration stated, that the plaintiff, dumig all or (iny of the time in that count mentioned, was not a subject of the Sovereign of these realms, and so not being such subject as aforesaid, heretofoie, to wit, on &c , was lawfully possessed of certain slaves, goods, chattels, effects, &c, then being without the dominions of the Sovereign of these realms, (that is to say), of divers, to wrt, 4000 slaves, of great value, to wit, of the value of 100,000, and of divers goods, chattels, effects, (that is to say), &c , and continued so possessed until the defendant afterwards, and whilst the said slaves, goods, chattels, effects, &c were so tespeetively without the dominions aforesaid, and whilst the plaintiff was so possessed and was not subject as aforesaid, to wit, on &c, with force and arms, seized, took, and carried away the said slaves, goods, chattels, effects, &a, whereby the same became and weie wholly lost to the plaintiff The second [168] count stated, th it the defendant, on &c, with force and arms, and against the peace of our Lady the Queen, burnt, damaged, and destroyed divers other goods, chattels, and effects of the plaintiff, &c The defendant pleaded numerous pleas, of which the following only are material for the present questions - 2 EX.169. BCTRON V. DENMAN 451 ' First, not guilty. Second, to the first count, that the plaintiff was not lawfully possessed of the said slaves, goods, chattels, effects, &o., or of any or either of them, modo et formii. Fourth, to so much of the first count as relates to the seizin";, taking, and carrying a|vay the slaves therein mentioned, that, before the time of the committing of the supposed trespasses, to wit, on &o., a treaty was entered into and concluded between our late Lord the King, William the Fourth, and the Queen Regent of .Spain, during t6e minority of her daughter, Donna Isabella the Second, Queen of Spain, the said parties then having full power to enter into and conclude the said treaty on the part of this kingdom and the kingdom of Spain respectively; and that the said treaty was and is the treaty mentioned and set forth in an act of Parliament passed in the session of Parliamentholden in the sixth and seventh years of the reign of his said late Majesty King William the Fourth, intituled " An Act for carrying into effect a treaty made between his Majesty and the Queen Regent of Spain, for the abolition of the slave trade," and was of the tenor and effect in the recital of the said act set forth ; and that afterwards, to wit, on &c., the said treaty was duly ratified, and the ratification thereof exchanged; and that the said treaty, from thence until and at the time when &c., (joutinued, and was and still is in full force and effect, and a much longer time than two months, to wit, five years, from the time of ratifying and exchanging the ratifications of the said treaty, had elapsed, and the said act [169] of Parliament had been passed and in force, before the said time when &c. And the defendant says, that the plaintiff, at the time of the making and ratifying of the said treaty, and from thence until and at the time when &c., was a subject of and owed allegiance to the kingdom of Spain, and obedience to the laws of that kingdom, and that the slaves in the declaration mentioned were natives of Africa, born free, and reduced to slavery by force and duress, and that the plaintiff, after the said two months had elapsed, and the eaid act had been passed, and before the said time when &c., to wit, on &c., and on divers days between that day and the said time when &c., though well knowing the premises, had procured, and at the said time when &c. was possessed of the said slaves against their will, on the coast of Africa north of the equator, for the purpose of carrying on the slave trade therewith, by transporting them from Africa where, at the said time when &c., they were, and where the supposed trespasses were committed, to certain other places beyond the seas, to wit, the West Indies, to be there sold and used as slaves, contrary to the provisions of the said treaty and in violation 'thereof ; and the plaintiff, at the said time when &c., was about to and would have caused the said slaves to be so transported, sold, and used as slaves, had riot the defendant set them free, as hereinafter mentioned : whereupon the defendant, being a subject of this kingdom, and holding the rank of commander in the Royal Navy thereof, and being a commander of a vessel of war, to wit, the " Wanderer," in the naval service thereof, and duly authorised and instructed to carry into effect the provisions of the said treaty, in the manner therein provided, as the servant of her Majesty Queen Victoria, then and still being the Queen of this kingdom, and by her command, did, at the said time when &c., seize, take, and carry away the said slaves, for the purpose of setting them free, and preventing the plaintiff from acting as aforesaid, arid violating the said treaty, and did then set them free, using [170] no unnecessary violence, arid doing l no more than was necessary for that purpose: qiue sunt eadem, &c. Verification. Ninth, to the first count, except as to seizing the slaves, (after stating the treaty, and that the plaintiff was a subject of Spain, in the same terms as in the abova plea), that the plaintiff, at the said time when &&., though well knowing the premises, was concerned and employed in carrying on, and did during and at that time carry on the said trade or traffic, contrary to the provisions of the said treaty arid in violation thereof, at a certain place on the western coast of Africa north of the equator, and that in the course of his carrying on the said trade or traffic, and for the purpose thereof, the plaintiff, before the said time when &c., to wit, on &c., and on clivers days and times between that day and the said time when &c., had caused and procured the said goods, chattels, effects, &c. in the first count mentioned to be imported to the said place oti the west; coast of Africa, for the purpose and with the intent of using the same in carrying on the said trade or traffic, contrary to the provisions of the said treaty and in violation thereof, to wit, by the exchanging the said goods, chattels, effects, &c., respectively for human beings, and obtaining such human beings in exchange for the same respectively, and of thereupon transporting them, the said human 452 BDRON V DENMAN 2 EX 171. beings so obtained, to certain other parts beyond the seas, to wit, the West Indies, to be there sold and used as slaves, contrary to the provisions of the said treaty and in violation thereof , and that the plaintiff, at the said time when &c , was possessed of the said goods, chattels, effects, &c at the said place, for the sole purpose of being so used in carping on the same trade 01 traffic, to wit, in matinei afoiesaid, and that the plaintiff was then about and intended to use, and would then have used, the said goods, chattels, effects, &c , in manner and for the puipose aforesaid, in carrying on the said tiade or...
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