INDICTMENT FOR CONSPIRACY.
| The Queen v. Zulueta & Others. | } |
CENTRAL CRIMINAL COURT
To wit.—The jurors for our Lady the Queen, upon their oath, present that Pedro de Zulueta the younger, late of the parish of St. Mary-le-Bow, in the City of London, merchant and commission agent; Thomas Jennings, late of the same place, mariner; and Thomas Bernardos late of the same place, mariner, heretofore and after the 1st day of January, in the year of our Lord 1825, to wit, on the 1st day of November, in the 4th year of the reign of Our Sovereign Lady Queen Victoria, with force and arms, to wit, at London aforesaid, and within the jurisdiction of the said Court, did covinously conspire, combine, confederate, and agree together illegally and feloniously, and against the form of the statute in such case made and provided, to fit out, man, navigate, equip, dispatch, use, and employ a certain ship or vessel, to wit, a ship or vessel called the “Augusta,” in order to accomplish a certain object, which in and by a certain Act of Parliament, made and passed in the 5th year of the reign of his late Majesty King George the Fourth, intituled “An Act to amend and consolidate the Laws relating to the Abolition of the Slave Trade,” was and is declared unlawful, that is to say, to deal and trade in slaves, contrary to the form of the statute in such case made and provided, and against the peace of Our Lady the Queen, her crown and dignity;
2. And the jurors aforesaid, upon their oath aforesaid, do further present that the said Pedro de Zulueta the younger, Thomas Jennings, and Thomas Bernardos, after the 1st day of January, in the year of our Lord 1825, to wit, on the 1st day of November, in the 4th year of the reign of Our Sovereign Lady Queen Victoria, with force and arms, to wit, at London aforesaid, and within the jurisdiction of the said Court, did conspire, combine, confederate, and agree together illegally and feloniously, and against the form of the statute in such case made and provided, to fit out, man, navigate, equip, dispatch, use, and employ a certain ship or vessel, called the “Augusta,” in order to accomplish a certain object, which in and by a certain Act of Parliament, made and passed in the 5th year of the reign of his late Majesty King George the Fourth, intituled “An Act to amend and consolidate the Laws relating to the Abolition of the Slave Trade,” was and is declared unlawful, that is to say, to purchase slaves, contrary to the form of the statute in such case made and provided, and against the peace of Our Lady the Queen, her crown and dignity;
3. And the jurors aforesaid, upon their oath aforesaid, do further present that the said Pedro de Zulueta the younger, Thomas Jennings, and Thomas Bernardos, after the 1st day of January, in the year of our Lord 1825, to wit, on the 1st day of November in the 4th year of the reign of Our Sovereign Lady Queen Victoria, with force and arms, to wit, at London aforesaid, and within the jurisdiction of the said Court, did conspire, combine, confederate, and agree together illegally and feloniously, and against the form of the statute in such case made and provided, to fit out, man, navigate, equip, dispatch, use, and employ a certain ship or vessel, called the “Augusta,” in order to accomplish a certain object which in and by a certain Act of Parliament, made and passed in the 5th year of the reign of his late Majesty King George the Fourth, intituled “An Act to amend and consolidate the Laws relating to the Abolition of the Slave Trade,” was and is declared unlawful, that is to say, to deal and trade in persons intended to be dealt with as slaves, contrary to the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity;
4. And the jurors aforesaid, upon their oath aforesaid, do further present that the said Pedro de Zulueta the younger, Thomas Jennings, and Thomas Bernardos, after the 1st day of January, in the year of our Lord 1825, to wit, on the 1st day of November, in the 4th year of the reign of Our Sovereign Lady Queen Victoria, with force and arms, to wit, at London aforesaid, and within the jurisdiction of the said Court, did conspire, combine, confederate, and agree together illegally and feloniously, and against the form of the statute in such case made and provided, to fit out, man, navigate, equip, dispatch, use, and employ a certain ship or vessel called the “Augusta,” in order to accomplish a certain object, which in and by a certain Act of Parliament, made and passed in the 5th year of the reign of his late Majesty King George the Fourth, intituled “An Act to amend and consolidate the Laws relating to the Abolition of the Slave Trade,” was and is declared unlawful, that is to say, to purchase persons intended to be dealt with as slaves, contrary to the form of the statute in such case made and provided, and against the peace of Our Lady the Queen, her crown and dignity;
5. And the jurors aforesaid, upon their oath aforesaid, do further present that the said Pedro de Zulueta the younger, Thomas Jennings, and Thomas Bernardos, heretofore and after the 1st day of January, in the year of our Lord 1825, to wit, on the 10th day of November, in the 4th year of the reign of Our Lady the now Queen, with force and arms, to wit, at London aforesaid, and within the jurisdiction of the said Court, did conspire, combine, confederate, and agree together knowingly, wilfully, and feloniously to ship on board of a certain ship or vessel, to wit, a ship or vessel called the “Augusta,” divers goods and effects, to wit, 29 hogsheads of tobacco, 60 cases of arms, one case of looking-glasses, 10 casks of copper ware, 134 bales of merchandise, 1,600 iron pots, and 2,370 kegs of gunpowder, to be employed in accomplishing a certain object, which was and is and by a certain Act of Parliament, made and passed in the 5th year of the reign of his late Majesty King George the Fourth, intituled “An Act to amend and consolidate the Laws relating to the Abolition of the Slave Trade,” declared unlawful, that is to say, to trade and deal in slaves, contrary to the form of the statute in such case made and provided, and against the peace of Our Sovereign Lady the Queen, her crown and dignity;
6. And the jurors aforesaid, upon their oath aforesaid, do further present that the said Pedro de Zulueta the younger, Thomas Jennings, and Thomas Bernardos, heretofore and after the 1st day of January, in the year of our Lord 1825, to wit, on the 10th day of November, in the 4th year of the reign of Our Lady the now Queen, with force and arms, to wit, at London aforesaid, and within the jurisdiction of the said Court, did conspire, combine, confederate, and agree together knowingly, wilfully, and feloniously to ship on board of a certain ship or vessel, to wit, a ship or vessel called the “Augusta,” divers goods and effects, to wit, 29 hogsheads of tobacco, 60 cases of arms, 1 case of looking-glasses, 10 casks of copper ware, 134 bales of merchandise, 1,600 iron pots, and 2,370 kegs of gunpowder, to be employed in accomplishing a certain object, which was and is in and by the last mentioned Act of Parliament declared unlawful, that is to say, to purchase slaves, contrary to the form of the statute in such case made and provided, and against the peace of Our Sovereign Lady the Queen, her crown and dignity;
7. And the jurors aforesaid, upon their oath aforesaid, do further present that the said Pedro de Zulueta the younger, Thomas Jennings, and Thomas Bernardos, heretofore and after the 1st day of January, in the year of our Lord 1825, to wit, on the 10th day of November, in the 4th year of the reign of Our Sovereign Lady the now Queen, with force and arms, to wit, at London aforesaid, and within the jurisdiction of the said Court, did conspire, combine, confederate, and agree together knowingly, wilfully, and feloniously to ship on board of a certain ship or vessel, to wit, a ship or vessel called the “Augusta,” divers goods and effects, to wit, 29 hogsheads of tobacco, 60 cases of arms, 1 case of looking-glasses, 10 casks of copper ware, 134 bales of merchandise, 1,600 iron pots, and 2,370 kegs of gunpowder, to be employed in accomplishing a certain object, which was and is in and by the said last mentioned Act of Parliament declared unlawful, that is to say, to deal and trade in persons intended to be dealt with as slaves, contrary to the form of the statute in such case made and provided, and against the peace of Our Sovereign Lady the Queen, her crown and dignity;
8. And the jurors aforesaid, upon their oath aforesaid, do further present that the said Pedro de Zulueta the younger, Thomas Jennings, and Thomas Bernardos, heretofore and after the 1st day of January, in the year of our Lord 1825, to wit, on the 10th day of November, in the 4th year of the reign of our Lady the now Queen, with force and arms, to wit, at London aforesaid, and within the jurisdiction of the said Court, did conspire, combine, confederate, and agree together knowingly, wilfully, and feloniously to ship on board of a certain ship or vessel, to wit, a ship or vessel called the “Augusta,” divers goods and effects, to wit, 29 hogsheads of tobacco, 60 cases of arms, 1 case of looking-glasses, 10 casks of copper ware, 134 bales of merchandise, 1,600 iron pots, and 2,370 kegs of gunpowder, to be employed in accomplishing a certain object, which was and is in and by the said last mentioned Act of Parliament declared unlawful, that is to say, to purchase persons intended to be dealt with as slaves, contrary to the form of the statute in such case made and provided, and against the peace of our Sovereign Lady the Queen, her crown and dignity;
9. And the jurors aforesaid, upon their oath aforesaid, do further present that the said Pedro de Zulueta the younger, Thomas Jennings, and Thomas Bernardos, after the 1st day of January, in the year of our Lord 1825, to wit, on the 1st day of November, in the 4th year of the reign of our Sovereign Lady Queen Victoria, with force and arms, to wit, at London aforesaid, and within the jurisdiction of the said Court, did conspire, combine, confederate, and agree together feloniously to engage in the trading and dealing in slaves, contrary to the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity;
10. And the jurors aforesaid, upon their oath aforesaid, do further present that Pedro de Zulueta the younger, Thomas Jennings, and Thomas Bernardos, after the 1st day of January, in the year of our Lord 1825, to wit, on the 1st day of November, in the 4th year of the reign of our Sovereign Lady Queen Victoria, with force and arms, to wit, at London aforesaid, and within the jurisdiction of the said Court, did conspire, combine, confederate, and agree together feloniously to engage in the trading and dealing in persons intended to be dealt with as slaves, contrary to the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity;
11. And the jurors aforesaid, upon their oath aforesaid, do further present that the said Pedro de Zulueta, the younger, Thomas Jennings, and Thomas Bernardos, after the 1st day of January, in the year of our Lord 1825, to wit, on the 1st day of November, in the 4th year of the reign of our Sovereign Lady Queen Victoria, with force and arms, to wit, at London aforesaid, and within the jurisdiction of the said Court, did conspire, combine, confederate, and agree together feloniously to engage in the purchase of slaves, contrary to the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity;
12. And the jurors aforesaid, upon their oath aforesaid, do further present that the said Pedro de Zulueta the younger, Thomas Jennings, and Thomas Bernardos, after the 1st day of January, in the year of our Lord 1825, to wit, on the 1st day of November, in the 4th year of the reign of our Sovereign Lady Queen Victoria, with force and arms, to wit, at London aforesaid, and within the jurisdiction of the said Court, did conspire, combine, confederate, and agree together feloniously to engage in the purchase of persons intended to be dealt with as slaves, contrary to the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity.
Names of Witnesses endorsed on both the Indictments before the Grand Jury.
| Sir George Stephen. | [Solicitor.] |
| John Brown. | [Clerk of the Admiralty.] |
| Lieutenant Henry Worsley Hill, R.N. | |
| The Honourable Captain Joseph Denman, R.N. | |
| Colonel Edward Nicolls. | |
| Emanuel Emanuels. | [Of Portsmouth.] |
| William Thomas. | [A Clerk at Messrs. Glyn & Co., Lombard Street.] |
| Abraham de Pinna. | [Notary Public.] |
(From the Anti-Slavery Reporter.)
CENTRAL CRIMINAL COURT.
Thursday, August 24, 1843.
THE CHARGE OF TRADING IN SLAVES.
Mr. Clarkson applied to their Lordships to take the bail for Mr. de Zulueta, arranged by the Recorder on the previous evening. He explained that only one of the sureties having been present, and the hour too late to obtain the other, Mr. de Zulueta had been enlarged upon giving his own recognizance in 6,000l., and one security in 2,000l. He was now in Court with Mr. Glyn, the well-known banker, and Mr. Wilcox, who were ready to enter into the sureties of 1,000l. each, Mr. de Zulueta himself being ready to give his personal recognizance in 3,000l.
Mr. Payne, who was retained for the prosecution, had no objection.
Mr. Clarkson then applied to have the trial, both for the felony and the misdemeanor, postponed to the next session.
Mr. Payne consented.
Mr. de Zulueta then entered into the requisite securities.
AFFIDAVIT
OF DEFENDANT AND MR. EDWARD LAWFORD
IN SUPPORT OF
APPLICATION FOR WRIT OF CERTIORARI.
| Regina v. Zulueta. | } Sworn, 8th Sept. 1843. |
IN THE QUEEN’S BENCH.
Pedro de Zulueta the younger, of the city of London, merchant, and Edward Lawford, of Drapers Hall, in the same city, gentleman, attorney for the said Pedro de Zulueta the younger, severally make oath and say, And first this deponent, Pedro de Zulueta, for himself, saith, that he, this deponent, is a merchant of London, and has been so for the last eight years, and as such engaged in large mercantile transactions with houses in different parts of the world, but particularly at Cadiz, and the Havannah. And this deponent saith, that he is engaged in such business in partnership with his this deponent’s father and brother, and that this deponent’s said father and grandfather were engaged in such business for seventy years and upwards, and that their said house of business is and always has been of good repute as honourable merchants, and that this deponent has always occupied the rank and station of a gentleman, and has always associated with gentlemen and merchants of the first respectability. And this deponent further saith, that on Wednesday, the 22nd day of August last, while this deponent was sitting in his counting-house in Moorgate street, in the city of London, he was, about three o’clock in the afternoon, to his great surprise taken into custody by a policeman, in consequence, as he was then informed, of a true bill having been then found against him for felony at the sessions then being held of the Central Criminal Court. And this deponent saith, that upon being taken to the said Court, and the said indictment being exhibited to him, he found it to be an indictment against this deponent, and against one Thomas Jennings, mariner, and one Thomas Bernardos, mariner, for illegally and feloniously manning, navigating, equipping, dispatching, using, and employing a certain ship or vessel called the Augusta, in order to accomplish a certain object, which in and by a certain Act of Parliament, made and passed in the 5th year of the reign of His late Majesty King George the Fourth, intituled “An Act to amend and consolidate the Laws relating to the Abolition of the Slave Trade,” was and is declared unlawful, and for other illegal offences against the said Act of Parliament. And this deponent saith, that he is not guilty of the offences charged against him by the said indictment, or of any or either of them, and that he never did, directly or indirectly, man, navigate, equip, dispatch, use, or employ the said ship, or any other ship, to accomplish any of the objects declared by the said Act to be unlawful, and that he is not, nor ever was, directly or indirectly, in any way or manner interested in the said ship or her earnings, or the profits of any voyage made or to be made by her. And this deponent saith, that when he was so taken into custody he was altogether ignorant that any proceedings whatever had been, or were about to be, taken against him in reference to the said ship, or to the offences charged by the said indictment. And this deponent saith, that there had been no previous examination or inquiry before any magistrate in reference to the said charges, and that he was then, as he is now, altogether ignorant of the evidence upon which such true bill was found, and has no means whatever of ascertaining, except as appears by the said indictment, what facts he is charged with. And this deponent saith, that upon his being so taken into custody and removed to the Central Criminal Court then sitting, upon a representation of the facts made by his counsel to the Recorder of London, then presiding as judge of the Central Criminal Court, it was ordered that he, this deponent, should be admitted to bail himself in the sum of 3000l., with two sureties in the sum of 1000l. each, to take his trial upon the said indictment, and that he forthwith pleaded Not Guilty to the said indictment; and that inasmuch as by reason of the lateness of the hour in the evening at which such order was made, he was unable to procure two sufficient persons as bail, the Recorder permitted him to enter into his own recognizance in 6,000l., with one surety in 2,000l., conditional for his completing the bail on the following morning pursuant to the said order, which this deponent accordingly did. And this deponent saith, that the said indictment now stands for trial at the next session of the Central Criminal Court. And both these deponents say, that they believe that this is the first instance of an indictment for felony preferred in this country under the said statute, and that they believe that questions upon the true meaning and construction of the said statute, and other and difficult questions of law will arise upon the trial thereof. And these deponents say, that in the judgment and belief of these deponents this is a case which ought to be tried by a special jury of merchants. And this deponent, Pedro de Zulueta the younger, saith, that he is desirous of having the assistance of the most eminent counsel upon the trial of this indictment, and that he has retained for that purpose one of the most eminent of Her Majesty’s counsel learned in the law, but that he is informed and believes that such counsel will not attend at the Central Criminal Court. And this deponent saith, that if he shall be permitted to remove this indictment by certiorari into this honourable Court he will have the assistance of such counsel, and he will apply for a special jury, and will take all necessary steps for having the same tried by a special jury, and for being defended therein by such eminent counsel as aforesaid, with the least possible delay. And this deponent, Pedro de Zulueta the younger, further saith, that the facts and circumstances relative to the using and employing the said ship or vessel called the Augusta, upon the occasion to which the said indictment has reference, formed one of the subjects of an inquiry in the year 1842, by a Select Committee of the Honourable House of Commons appointed to inquire into the state of the British possessions on the West Coast of Africa, and that three of the witnesses whose names appeared on the back of this indictment, (that is to say) Captain the Honourable Joseph Denman, Captain Henry Worsley Hill, and Colonel Edward Nicolls, were examined before such Committee. And this deponent saith, that it appears by the printed minutes of the evidence taken before the said Committee, and this deponent believes the fact to be, that the said Henry Worsley Hill captured the ship Augusta off the Gallinas, on the coast of Africa, and that the said Thomas Jennings, then the owner and master of the said ship, was tried in Her Majesty’s Court of Sierra Leone upon a charge similar to that now charged against him and against this deponent, and that the said Thomas Jennings was by such Court on such trial acquitted. And this deponent saith, that he is one of the mercantile correspondents in London of the mercantile house of Pedro Martinez & Co., of Cadiz and the Havannah, and that the nature of his commercial dealings with the said houses of Pedro Martinez & Co. is confined to the usual mercantile business of purchasing and selling, in this country, for the said Pedro Martinez & Co., lawful goods and merchandise, and usual mercantile banking transactions, and that he has no sort of connexion with him or with any other house, either here or abroad, as to any dealings in, or in relation to, slaves or the slave trade.
| Sworn by both the deponents, Pedro de Zulueta the younger, and Edward Lawford, at my Chambers, Rolls Garden, Chancery Lane, this 8th day of September, 1843, Before me, T. Erskine. | } | Pedro de Zulueta, Junior. Edward Lawford. |
Note.—The learned Judge, to whom the application was made for a Writ of Certiorari, did not see fit to grant it.
CENTRAL CRIMINAL COURT.
MOTION TO POSTPONE THE TRIAL OF THE INDICTMENT.
The Queen versus Zulueta and others.
Proceedings at the Central Criminal Court at the Old Bailey, before the Honourable Mr. Justice Erskine and the Honourable Mr. Justice Cresswell.
(Thursday, 21st of September, 1843.)
Mr. Clarkson. My Lords, I consider it my duty to take the earliest opportunity of bringing under your Lordships’ consideration the case of the Queen v. Zulueta.
Mr. Payne. My Lords, Mr. Serjeant Bompas leads me for the prosecution in this case: he is not here now, but will be here in a moment.
Mr. Justice Erskine. This is an application only.
Mr. Clarkson. Yes, my Lord; I will give my learned friend every advantage I can. We have given him a copy of our affidavit, in answer to which an affidavit has been sworn, I understand the effect of which is this, that Captain Hill—
Mr. Justice Erskine. What is the ground of your application?
Mr. Clarkson. The absence of material witnesses. I do not mean to trouble your Lordships at any length. My application to your Lordships is to postpone the trial of these indictments, upon the ground of the absence of material witnesses from Spain, without whose evidence the defendant cannot safely go to trial, and that application is founded upon an affidavit, a copy of which has been supplied to the gentleman on the other side some days ago. It was supplied immediately upon the sitting of the Court. One of the witnesses who had been sent for, and who was not expected to arrive, having arrived within the last two days, and this indictment having been preferred without any application being made to a magistrate, or without any notice to the gentleman himself. My learned friends have made an affidavit in reply; and in order to save your Lordships hearing two speeches from me, it will be better for your Lordships to hear what my learned friends have to say in opposition to this application and then to hear me in reply.
Mr. Serjeant Bompas. My learned friend seems to assume that the trial will be put off as a matter of course.
Mr. Justice Erskine. He has stated the ground of his application, namely, the absence of material and necessary witnesses, and he leaves you to state his affidavit, and comment upon it as you please.
Mr. Serjeant Bompas. My learned friend has not quite correctly stated his affidavit when he says his application is founded upon the absence of material witnesses.
Mr. Justice Erskine. The affidavit had better be read.
Mr. Justice Cresswell. Have you got a copy of it?
Mr. Payne. Yes, my Lord.
[A copy of the affidavit was handed to his Lordship.]
The affidavit was then read by the Clerk of the Arraigns as follows:—
In the Central Criminal Court.
| The Queen v. Pedro de Zulueta the younger, and others. | } | On Indictment for Felony. |
| The same v. The same | } | On Indictment for Misdemeanor. |
Pedro de Zulueta the younger, of No. 22, Moorgate Street, in the City of London, merchant, and John Lawford, of Drapers Hall, in the said city, gentleman, attorney to the said Pedro de Zulueta, severally make oath and say,—And first, this deponent, Pedro de Zulueta the younger, for himself saith, that the above mentioned indictments are preferred against this deponent, and against one Thomas Jennings, mariner, and one Thomas Bernardos, mariner, the first mentioned of such indictments being for illegally and feloniously manning, navigating, equipping, dispatching, using, and employing a certain ship or vessel called the “Augusta,” in order to accomplish a certain object, which in and by a certain Act of Parliament, made and passed in the 5th year of the reign of his late Majesty King George the Fourth, intituled “An Act to amend and consolidate the Laws relating to the Abolition of the Slave Trade,” was and is declared unlawful; and the last mentioned of such indictments for conspiring to do, &c. And this deponent saith, that he was taken into custody on the 23rd day of August last in consequence of the said indictments having been found against him. And this deponent saith, that upon his being so taken into custody and brought to the Central Criminal Court then sitting, the Recorder of London then presiding as judge of the said Court, ordered that he this deponent should be admitted to bail himself in 3,000l., with two sureties in the sum of 1,000l. each, to take his trial upon the said indictments; and that he thereupon pleaded “Not Guilty” to the said indictments, and entered into the said recognizances. And this deponent further saith, that when he was so taken into custody he was altogether ignorant that any proceedings whatever had been or were about to be taken against him in reference to the said ship, or to the offence charged by the said indictments (there having been no previous examination or inquiry before any magistrate in reference to the said charges), and that he was then, as he is now, altogether ignorant of the evidence upon which such indictments were found, excepting that this deponent has been informed that the charges contained in these indictments arise out of transactions in respect of which this deponent was examined in the year 1842 before a Committee of the Honourable the House of Commons. And this deponent further saith, that Joseph Toplis, who was the managing clerk of this deponent’s house of business at Liverpool at the time of the transactions in question, was and is a most material witness for this deponent, and most essential to enable this deponent to prepare his defence to these indictments. And this deponent saith, that at the time when these indictments were preferred the said Joseph Toplis was at Gibraltar. And this deponent saith, that on Saturday the 26th day of August last, being the third day after the said indictments were preferred, and being the first possible opportunity which this deponent had of communicating with the said Joseph Toplis, this deponent’s house of business wrote and sent a letter to him the said Joseph Toplis, requiring him to repair to England immediately, as well for the purpose of giving his evidence on the trial of these indictments as in order that the said Joseph Toplis might enable this deponent to procure such other necessary evidence for the defence of this deponent, as the knowledge of the said Joseph Toplis in relation to the transaction out of which these indictments arise might enable him to obtain. And this deponent, John Lawford, for himself saith, that in consequence of the absence of the said Joseph Toplis, and in consequence of this deponent’s belief that the said Joseph Toplis could not arrive in time to enable this deponent to prepare for the trial of these indictments, this deponent, under the advice of counsel, wrote and sent a letter to Sir George Stephen, the attorney for the prosecution, in the words and figures following:—
The Queen v. Zulueta.
Dear Sir, Drapers Hall, 11th September, 1843.
You will probably not be surprised to hear that it will require considerable time to collect and prepare the materials for Mr. Zulueta’s defence, and you will therefore be pleased to consider this as a notice of our intention to apply to the Court for a postponement of the trial. We think it right thus early to inform you of our intention, that neither you nor your witnesses may be put to unnecessary expense or inconvenience, and we anticipate no objection on your part to a proceeding so manifestly reasonable.
We are, dear Sir,
Your very obedient servants,
Sir George Stephen.
(signed) Ed. Jno. & H. S. Lawford.
And this deponent saith, that in reply to such letter, this deponent received a letter from the said Sir George Stephen, in the words and figures following:—
The Queen, v. Zulueta.
Collins, 12th September, 1843.
Prince’s Risborough.
My dear Sirs,
Personally I should have no objection to deferring the trial, and so far as your own convenience is involved in the delay, it would give me much pleasure to consult it. But this is a case in which I feel restrained from exercising the least discretion, and must therefore leave the matter to the decision of the Court. My briefs are delivered, and, with one exception, my witnesses are subpœnaed; but that exception is the most expensive, and therefore to save you that expense, I will not subpœna him until Monday, if you will write me word that you will consent to the trial being at all events deferred till Thursday. I put it thus, because I apprehend that the Court will only accede to your application on terms of your paying the costs of the day. Have the goodness to address your answer to me here. Yours very truly,
Messrs. Lawford, Drapers Hall. George Stephen.
And this deponent, Pedro de Zulueta the younger, further saith that the said Joseph Toplis, in consequence of the aforesaid requisition on the part of this deponent, came away from Gibraltar forthwith, and arrived in London on Sunday evening last, the 17th day of September instant. And this deponent further saith, that it will be absolutely necessary for the said Joseph Toplis to repair to Liverpool for the purpose of procuring the attendance of divers persons who are necessary witnesses on behalf of this deponent, who are not known to this deponent, and whose names this deponent had not the means of procuring until he had communicated with the said Joseph Toplis. And this deponent saith, that by reason of the shortness of the time since the arrival of the said Joseph Toplis, and the necessity of his repairing to Liverpool and elsewhere, to seek for and procure the necessary evidence in support of the defence of this deponent, it will be impossible for this deponent to be prepared with such evidence in time for the present session. And this deponent, John Lawford, for himself saith, that he has been retained as the attorney of the said defendant, and that he has diligently applied himself to the preparation of the defendant’s case, and that he is advised by counsel, and verily believes that it will be absolutely necessary for this deponent to procure the attendance of the witnesses above referred to, and of others who he is informed and believes are resident at Manchester, Liverpool, and Glasgow, and also of some of the crew of the said ship Augusta. And this deponent saith, that he has been informed and believes that the defendant, Thomas Jennings, has been already tried for this offence at Sierra Leone, and acquitted thereof. And this deponent saith, that he has reason to believe that it may be necessary to procure the attendance of witnesses from that settlement as well as from Spain, and other distant places. And this deponent saith, that by reason of the shortness of the time which has elapsed since the said indictments were preferred, and by reason of the entire ignorance of this deponent of the evidence against the defendant, Pedro de Zulueta the younger, it has been utterly impossible for this deponent to complete the preparations for the defence in time for the present sessions. And this deponent further saith, that from the time of the said bills being found to the present time this deponent hath been in constant communication with the said other deponent with a view to his defence, and that no time whatever has been lost in preparing for such defence; but this deponent saith, that by the reason of the circumstances hereinbefore stated this deponent hath been wholly unable to prepare the brief for the defence.
(signed)
Pedro de Zulueta.
John Lawford.
Sworn in Court, 19th September, 1843.
Mr. Serjeant Bompas. Your Lordships will probably wish to hear the affidavit in answer, before I make any observations upon that which has just been read.
Mr. Justice Cresswell. Have you a copy of it?
Mr. Payne. Yes, my Lord.
[A copy of the affidavit was handed to his Lordship.]
The affidavit was then read by the Clerk of the Arraigns as follows:—
In the Central Criminal Court.
| The Queen, v. Pedro de Zulueta, and others. | } | For Felony. |
| The same, v. The same. | } | For Misdemeanor. |
Henry Worsley Hill, of Great Rider Street, in the parish of St. James, Esquire, a Commander in Her Majesty’s Navy, and Sir George Stephen, of King’s Arms Yard, in the city of London, the solicitor for the prosecution, severally make oath and say,—And first, the said Henry Worsley Hill for himself saith, that he is under orders to proceed to the Gold Coast on the western coast of Africa, to assume the government thereof with the least possible delay, and that arrangements are now in progress for this deponent to depart by the end of this present month. And this deponent also saith, that the public service will sustain considerable inconvenience by any delay on the part of this deponent in proceeding to Africa as aforesaid at the time now appointed, and that he this deponent has no expectation or hope of obtaining further leave of absence. And this deponent, Sir George Stephen, for himself saith, that the said Henry Worsley Hill is a most material witness on behalf of this prosecution, and that without his evidence this deponent cannot safely proceed to trial; and this deponent, Sir George Stephen, further saith, that he has perused a copy of the affidavit of Pedro de Zulueta the younger, and John Lawford, made in these matters, and that in consequence of the misdirection of the same, as this deponent believes, he, this deponent, did not receive a reply to his letter of the 12th of September, 1843, set out in the said affidavit, and therefore proceeded in his preparations for trial. And this deponent saith, that he is ready to proceed to trial at the present session of this Court. And this deponent further saith, that he has caused another witness in this matter to come over from Paris, where such witness is permanently domiciled, and that such last mentioned witness incurred much inconvenience and expense in so coming, and that as he habitually resides out of the jurisdiction this deponent has no means of compelling him to appear again, should the trial of these indictments be deferred. And this deponent saith, that the evidence of such last-mentioned witness is most material. And this deponent further saith, that he has subpœnaed three other witnesses to come to London from a great distance, one of whom is a sailor, and another of whom is an officer of rank in Her Majesty’s navy, and that the evidence of all the said last mentioned witnesses is most material, and that the said indictments cannot be safely tried in their absence, but that from the nautical profession of two of them, this deponent believes it to be very doubtful if he will again be able to compel their attendance. And this deponent further saith, that he has also subpœnaed another witness who habitually resides at Seville in Spain, and who is about to return to Seville, as this deponent is informed and believes as soon as the trial is over, and this deponent is informed and believes that the evidence of such last mentioned witness is material. And deponent saith, that he has no hope of again collecting together so many important witnesses whose professional avocations necessarily render their simultaneous presence in this country very uncertain. And this deponent further saith, that the said defendant, Pedro de Zulueta the younger, cannot have been taken by surprise by these indictments, because the said Pedro de Zulueta the younger, volunteered, as this deponent is informed and believes, to be examined as a witness before the Select Committee on the West Coast of Africa, and was so examined on the 22nd and 23rd days of July, 1843, when the nature of the case upon which this prosecution is founded was stated to the Committee, and the said Pedro de Zulueta admitted that he had received copies of the evidence given by Captain Hill on the 29th of June, the 4th of July, and the 6th of July previously. And this deponent saith, that the said Pedro de Zulueta the younger, did upon such examination admit that the house to which he belongs had been charged with criminality, and with having for a length of time been agents to slave dealers, and the said Pedro de Zulueta the younger avowed his reason for wishing to be examined before the Committee to be, that the statements contained in the said evidence were incorrect. And this deponent lastly saith, that in another part of such examination, the said Pedro de Zulueta the younger, in answer to the question, “Is there any other part of the evidence which has been given that you wish to observe upon?” after denying all knowledge of a person of the name of Kidd, adds, “With regard to my partners, I can say the same. I have been making inquiries about it; my father knew there was such a man, but I did not know even that, though I have managed all this business.”
(signed)
H. W. Hill.
George Stephen.
Mr. Serjeant Bompas. My learned friend, Mr. Clarkson, has called upon me to make some observations upon this affidavit. I should not in addressing your Lordships at all wish to object to the postponement of this trial, if it could be considered even by the defendant or his counsel more advantageous to him that it should be postponed, could I consent to it without feeling that the trial could not fairly take place at any other period. I cannot help thinking, while your Lordship is looking at this affidavit, that it is one such as has been rarely produced before a Court, in order to found an application for the postponement of a trial. This indictment was preferred above a month from this time; that is, four weeks from this time. It is true, as has been stated, that no inquiry took place before a magistrate, but when long before that period at which the inquiry could have been instituted, if such had taken place, this matter had been inquired into before a Committee of the House of Commons, when Mr. Zulueta appeared before that Committee, and stated that he had had the management of all the business, and appeared in order to explain the transaction—
Mr. Clarkson. No.
Mr. Serjeant Bompas. I will refer to the words of the affidavit.
Mr. Clarkson. I beg pardon.
Mr. Serjeant Bompas. When it appears that that inquiry had taken place before a Committee of the House of Commons, this proceeding cannot have been instituted without ample notice of all that is to be now inquired into, as far as any party, under the circumstances, charged with felony, can be supposed to know the nature of the evidence to be brought against him. And what is the foundation of this application? Not that some material witness is absent—some material witness whom they have subpœnaed, and whom they know to be material, and whose attendance they cannot obtain; that is not the foundation of the application. The ground of the application is, that a person of the name of Toplis, who was managing clerk to Mr. Zulueta, was absent at Gibraltar, at the time the indictment was found. It is not even that he has not arrived: he arrived on Sunday and is now able to give any evidence that the defendant may require. It is said, that he is able to make communications in respect to the evidence of persons, whose names were not known to the defendant till he arrived, and upon whose absence the application was founded, and that it is now requisite to send for some witnesses from Liverpool, and I hardly know where. The affidavit is very singularly sworn; and when my learned friend says, “from Spain,” and so on, there is no such statement to be found in it. That which is stated is, that it may be necessary to send for various witnesses, that it may be necessary to procure the attendance of witnesses from the settlement of Sierra Leone, as well as from Spain. My learned friend, in citing it, said, that they were to obtain witnesses “from Spain.” The affidavit is, that it may be necessary to have witnesses from Spain—that it may be necessary to have witnesses from Africa, so that there is no statement whatever that there is any witness in Spain who would be wanted or can be expected, or that there is any witness in Africa who will be wanted or who is expected; there is no such statement at all. The statement is, “That it will be absolutely necessary for the said Joseph Toplis to repair to Liverpool for the purpose of procuring the attendance of divers persons, who are necessary witnesses on behalf of this deponent, who are not known to this deponent, and whose names this deponent had not the means of procuring until he had communicated with the said Joseph Toplis.” Certainly that is a statement of a very extraordinary kind: no doubt it was put into the affidavit, believing it to be true, but the statement made by Mr. Zulueta before the Committee of the House of Commons was, that he had had the management of the whole of the business; and to suppose that there is a witness in Spain, that there is a witness in Gibraltar, Mr. Toplis, and that they can make no inquiry as to the names of the individuals till he comes over, is the most extraordinary statement ever laid before a Court. As far as this affidavit goes, it does not appear that they have taken the slightest steps in order to ascertain by any inquiry as to any witnesses or any transactions; but Mr. Toplis is to go to Liverpool to hunt out for witnesses. Who they are does not appear: not any persons who are certain to be witnesses, but that he is to go to Liverpool to hunt out for witnesses who may be—
Mr. Justice Cresswell. And whose names the deponent could not procure till Mr. Toplis came.
Mr. Serjeant Bompas. “And whose names this deponent had not the means of procuring until he had communicated with the said Joseph Toplis.” He could hot tell certainly who Joseph Toplis would require till he had communicated with him; but that he could not have ascertained whether any witnesses were necessary for his defence would not appear satisfactorily to your Lordships. It is a case that will require examination by the Court, in order to do that which would be the object of the Court, to have the case most fairly and properly inquired into. Your Lordships see of necessity that the witnesses for the prosecution are witnesses in a situation not easy to be obtained upon any future occasion. There is one who is under orders to proceed abroad in order to take the government of the Gold Coast: there are others who are officers in the navy.
Mr. Justice Erskine. What was the date of the inquiry before the House of Commons?
Mr. Serjeant Bompas. 1842, my Lord.
Mr. Justice Erskine. Your affidavit states 1843.
Mr. Serjeant Bompas. It is a mistake, my Lord. It should be 1842.
Mr. Justice Erskine. Subsequently to that inquiry was any notice given to the defendant that it would be made the subject of a prosecution?
Mr. Serjeant Bompas. No notice, my Lord, till the bill was found.
Mr. Justice Erskine. What was the date of the transaction to which the indictment refers?
Mr. Serjeant Bompas. There was then an appeal pending before the Privy Council.
Mr. Justice Erskine. What was the date of the transaction to which the indictment refers? I want the date of the occurrence.
Mr. Serjeant Bompas. 1840; the end of 1840 and the beginning of 1841. The capture of the vessel, to which reference was made, was in February, 1841. She left England on the 9th of November, 1840. She was captured: there was a proceeding in the court abroad; she was condemned, and there was an appeal before the Privy Council.
Mr. Justice Cresswell. The ship sailed from Liverpool?
Mr. Serjeant Bompas. Yes, my Lord.
Mr. Justice Erskine. With a cargo of some sort. One question will be, whether it was a cargo adapted to the trade upon the African coast, or for dealing in slaves.
Mr. Serjeant Bompas. No doubt.
Mr. Justice Erskine. Was Mr. Toplis the managing clerk at Liverpool?
Mr. Serjeant Bompas. Yes, my Lord. It is stated that he was the managing clerk at Liverpool; but to suppose that the shipment of any firm at Liverpool to say that they can obtain no evidence of that shipment except by a managing clerk, is such a statement as can hardly be credited of any merchant. That is the statement; but they do not state any circumstances to explain it. That it is necessary to have his managing clerk to state the names of the parties concerned in the shipment, it is one of the most extraordinary statements ever made. Upon this statement your Lordships will have to consider the foundation of the application, and your Lordships will take into view all the circumstances of it. This case is to be proved, as it must necessarily be, by various officers in the navy besides Captain Hill, who is about to go out as governor of the Gold Coast; by officers in the navy, and sailors, and foreigners, now here ready to give their testimony.
Now, my Lord, there is one circumstance singularly deficient in this case, and without which there has never been a case in which the trial of any cause has been put off. The affidavit does not give the slightest suggestion when they are likely to be ready to take their trial; so that it is utterly impossible that the trial can be available, if they are to come when the witnesses for the prosecution may be scattered over the whole world: the prosecution may be gone through, but it would be a mere formal statement. I am willing to give due weight to every argument on behalf of a person charged with an offence, in order that the charge may be fairly and properly tried in respect to him; but at the same time there are duties on behalf of the prosecution. The crime cannot be inquired into unless there are the means to procure the evidence. If these witnesses are here, and this party has not taken the means which he might have done to have the trial now take place, and if he does not give us the slightest information when it is to be tried; if a person charged with an offence is to choose the time for trying it, every trial of this kind would be an utter abortion, because unless the witnesses for the prosecution are here it is impossible there can be a fair trial.
Now there is not a statement, there is no pretence, why the witnesses for the defendant could not have been here at the present time. To say that there were no means of knowing the general nature of the charge, and knowing the whole substance of the defence, and having the whole matter fairly considered and put into form before the Court, is what you cannot believe. Your Lordships cannot believe, that though Mr. Toplis may have been an important witness, that the general subject of the charge inquired into was not generally known, and that all the witnesses for the defence, such witnesses as were thought necessary, must not have been generally known to the defendant. There may have been a witness whose name was known only to Mr. Toplis; there may have been one or more, but it is impossible that the case might not have been got up with the exception of Mr. Toplis’s evidence, and might have been ready for trial on this day. But if they have utterly neglected to take any step till last Sunday, the time as I understand it, they have no right to come now and ask your Lordships to put off the trial. There is no statement of any sort or kind of any individual witness necessary, except those suggested to be at Liverpool. Mr. Toplis could not know the witnesses abroad more than any other gentleman. Suppose there are witnesses abroad—have there been any, the slightest step taken to bring them here? What steps have been taken? He says there are witnesses from Africa: when are they to be here? when will they come? when is the trial to take place? There is not a single intimation of the time when they will be ready to take their trial. It is to be put off till the witnesses for the prosecution are scattered, and it is impossible to have the trial. Undoubtedly it is difficult to have a number of witnesses of this description ready before the Court, and to get their testimony together. But what do they say? They say that it may be necessary to get some of the sailors of the Augusta. Was Mr. Toplis necessary for that? Why have they not taken any step to get the evidence of those witnesses? They do not appear to have taken any one step to be prepared for this trial, although then knowing that it was a matter of difficulty to collect a number of witnesses like these. If it is to be held that they can at their discretion from time to time put off the case, it is a mere abortion to attempt to prosecute any person, however guilty, in the situation of Mr. Zulueta. However important it is for the defendant—and I would not wish to withhold that from the consideration of your Lordships—it is equally important for the public good, and as well worthy of your consideration. It would be with the utmost difficulty, if there is any probability of doing it at all, that the witnesses could be got together again. If they had taken every step, and gone down to inquire at Liverpool, and proceeded as far as they could and had the means in their power, and yet could not be ready, that would be some ground for the application; but they do not appear to have taken any step—they appear to have relied upon putting off the trial, considering that that would be as good a protection as any witnesses could possibly give them.
I certainly do feel that there is a ground of opposition to this application which has never failed when there is no suggestion at all in the affidavit of what time they expect to be ready for trial. I believe there has never been a case in which a party has not given the Court some reason to believe that, if the trial is put off, they will be ready to try at a given time: on the contrary, here it is put as if it was quite loose—there may be some witnesses from Spain and Africa, though they have had a month during which they might have made inquiries.
I have thought it right to submit these observations to your Lordships, both for the sake of the prosecution and the defendant. If the prosecution is well founded, it is of the utmost importance that it should proceed; on the other hand, it is no doubt of importance that the other side should have an opportunity of bringing the case before the Court in all the views of which the case is capable: but the case is one in which your Lordships must see the great inconvenience to the prosecutors, and the difficulty of getting the witnesses together, and I trust your Lordships will feel that it is one which ought not to be adjourned; but if it be adjourned, it must be to some fixed time at which it must be understood that the case will come on.
Mr. Payne. My Lords, I will add but two or three words to what Mr. Serjeant Bompas has already addressed to your Lordships. I must say that I never in the course of my experience met with a paragraph in an affidavit to postpone a trial similar to the first paragraph in this affidavit; it is merely this, “That it will be absolutely necessary for Joseph Toplis to repair to Liverpool for the purpose of procuring the attendance of divers persons who are necessary witnesses on behalf of this deponent, who are not known to this deponent, and whose names this deponent had not the means of procuring until he had communicated with the said Joseph Toplis.” Now it is generally required, in affidavits of this description, that if you do know the names of the witnesses, and where they are to come from, that you should state them to the Court, that the opposite side may be in possession bonâ fide of the nature of the defence. If Mr. Zulueta had sworn that he did not now know the names of the witnesses, there would be some reason for not putting in the names; but he does not say that—he says he did not know them till Mr. Toplis came. Mr. Toplis came last Sunday night: he could furnish the names; and if he had put the names of the witnesses and the places they were to come from in the affidavit, instead of “divers witnesses,” it might be in the usual form upon which the Court may sometimes postpone a trial. I say that that expression is not sufficient. I say that the Court are entitled to have information of the names of the persons necessary as witnesses, in order to bring the case within the ordinary rule.
Then, my Lords, the only other part of the affidavit which has not been noticed by my learned friend, and which may be touched upon on the opposite side, is the affidavit of the attorney that he has not been able to prepare the briefs. Mr. Zulueta having stated that he was the person who managed all this business, he must have possessed information sufficient to enable the attorney in four weeks to prepare the briefs; and if he has not furnished that information, it is owing to neglect on the part of Mr. Zulueta. Their affidavit is loose and defective—ours is precise. We say we do not think we can get Captain Hill again: he states, that he is under orders to sail. Under these circumstances, we must bow to what the Court think right to decide; but we consider that a case has not been made out to justify the Court in granting this application.
Mr. Clarkson. My Lords, in answer—
Mr. Justice Erskine. You cannot ask for any further postponement beyond the next sessions.
Mr. Clarkson. I did not think that your Lordships would assume jurisdiction to postpone it beyond that.
Mr. Justice Erskine. We cannot listen to that part of the application with respect to the witnesses from Spain or Sierra Leone; they are not stated with sufficient accuracy.
Mr. Clarkson. I quite feel that, my Lord; I only wish to say this, that if my learned friend comes here to ask for the costs of the day, or for what my learned friend calls terms—
Mr. Justice Erskine. That is not necessary.
Mr. Clarkson. There is some mistake about it; such a thing was never heard of here: but there is this observation to be made in answer to the greater part of what my learned friends have said—for twelve months and more have these parties who are prosecuting been taking steps, and yet to this hour nobody knows who they are, no name has been furnished: for twelve months have they been about that which they now call upon a respectable merchant of London to meet in a month; and two or three years have elapsed since the vessel was condemned.
Mr. Justice Erskine. It is the duty of the Court to take care that the ends of justice shall not be defeated by too easily yielding to applications of this nature; but it is equally the duty of the Court to take care that a man charged with a felony shall not be brought to his trial until, he is able to present such an answer as the circumstances of the case will admit of.
It appears that the offence with which the defendant is charged is alleged to have been committed in 1840. The grounds for charging Mr. Zulueta with participation in that offence may have originated in the examinations before the Committee of the House of Commons in 1842. If it did then originate, the parties who conduct this prosecution must have known what the foundation of that accusation was, and if they intended to charge Mr. Zulueta with that offence, and particularly if they meant to support it upon the testimony of witnesses who might be absent at a future time, they ought to have taken steps by which to have secured the attendance of the defendant, and have taken him before a magistrate, and examined the witnesses there. But it appears, though this examination took place in 1842, no steps are taken in the prosecution till August 1843, and that is just upon the eve of the departure of one of the witnesses, from which circumstance the Crown, it is said, cannot avail itself of his presence, because he is going upon a public mission to some other part of the world. This is a prosecution of a singular character, and the Crown will take care that the ends of justice are not defeated by their sending away an officer whose testimony is necessary for the establishment of such a charge. I do not believe there is any risk of the ends of justice being defeated by his absence.
Then is it fair to call upon the defendant now to present himself to the Court? It appears that a person of the name of Toplis had the management of this business at Liverpool, where the circumstances are said to have originated which form the foundation of this charge; he is abroad, and from the year 1842 no notice is given.
Mr. Serjeant Bompas. The Privy Council did not decide.
Mr. Justice Cresswell. We have nothing to do with the Privy Council.
Mr. Clarkson. There is no decision by any body. It is no prosecution by the Crown.
Mr. Justice Erskine. I was not saying any thing imputing improper motives to the prosecutors, but stating facts, that no notice had been given to the defendant. If, in the year 1842, any notice had been given to Mr. Zulueta that this prosecution was to be instituted, then if he had sent Mr. Toplis abroad, he would have no right to avail himself of that circumstance; but in the absence of any notice of that sort, he had a right to assume that the evidence before the House of Commons was satisfactory, and that there was no ground to institute a prosecution, and he might then fairly send his clerk abroad. Then it appears, that, having been sent abroad, immediately the prosecution was instituted a letter was sent to him, in consequence of which he returned to this country: he only arrived on Sunday last; and it is impossible, from the state of the facts, that Mr. Zulueta could be in a state to prepare the requisite instructions for counsel, and get those witnesses necessary to enable him to proceed with his defence. We therefore think that this trial should be postponed till the next sessions. We do not yield to the necessity suggested of sending to Spain or Sierra Leone; there is no sufficient ground for that laid in the affidavit.
Mr. Clarkson. The form will be, that your Lordships will be pleased to respite the recognizances of Mr. Zulueta and his bail to the next sessions.
Mr. Justice Erskine. Yes.
(The recognizances were enlarged, and the parties left the Court.)
TRIAL
OF
PEDRO DE ZULUETA, JUN., ESQ.,
AT THE CENTRAL CRIMINAL COURT, OLD BAILEY,
ON FRIDAY, 27th OCTOBER, 1843,
BEFORE
The HONOURABLE Mr. JUSTICE MAULE,
The HONOURABLE Mr. JUSTICE WIGHTMAN,
AND
Mr. COMMISSIONER BULLOCK.
Copy from Mr. Gurney’s Short-hand Notes of the Proceedings on the Trial of this Indictment.
| The Queen, v. Pedro de Zulueta. | } | Indictment for Felony. |
Mr. Kelly. My Lord, with respect to Mr. Zulueta, it is very important that I should be able to communicate with him from time to time as the trial proceeds. May I ask of your Lordship some indulgence to permit him to sit near his counsel?
Mr. Justice Maule. What is the charge?
Mr. Kelly. The charge under prosecution is felony; the felony being, the fitting out a ship with certain objects declared by statute to be illegal, namely, those of slave trading.
Mr. Justice Maule. I should wish that Mr. Zulueta, and every one else, should have the liberty of sitting by his counsel, but that is impossible. I understand an application was made in the case of a person of the name of Trotter.
Mr. Kelly. It has been done; there are many precedents. I do not ask it on the ground of any difference of rank or condition, but because the justice of the case requires it, particularly as he is a foreigner, a Spaniard, and many of the documents which will have to be referred to in the course of the proceeding are in the Spanish language, that I should be enabled to communicate with him. It is not at Mr. Zulueta’s own instance I make the application, but for my own assistance in the conduct of the defence.
Mr. Justice Wightman. A similar application was made in the case of Captain Douglas.
Mr. Kelly. That was not an application by counsel for the convenience of counsel, in aid of the justice of the case, but on the ground of his being an officer in the British army. That, if granted, might establish a distinction which ought not to be established; but in the case of Horne Tooke, where it became necessary for the merits of the case that there should be a constant communication between the counsel and the prisoner, it was permitted.
Mr. Justice Wightman. What was the charge against him?
Mr. Kelly. High treason. A case, I may venture to say directly in point, except that that was a weaker case than this, for this is a case of a foreigner, a Spaniard; and, as I have observed, most of the documents to which it will be necessary from time to time to refer, are in the Spanish language, and it is impossible I can do justice to his case if I cannot communicate with the prisoner so as to understand their effect.
Mr. Justice Maule. Have you the 9th vol. of Carrington & Payne? The difficulty stated is, that though the prisoner cannot come to his friend, his friend may go to him.
[The 9th vol. of Carrington & Payne’s Reports was handed to his Lordship.
[The Witnesses on both sides were directed to leave the Court.
Mr. Justice Maule. Have you got the case of the King v. Tooke?
Mr. Kelly. No, I have not the book here, my Lord; but I remember the case.
(The Report was produced.)
Mr. Justice Maule. In the Report in the State Trials of the case of Mr. Horne Tooke, to which you have referred, it appears that he claimed as a matter of right, the being permitted to sit near his counsel. The Lord Chief Justice says, “That is an indulgence which I have hardly ever known given to any person in your situation.” The Lord Chief Justice at that time was Lord Chief Justice Eyre. Mr. Horne Tooke says, “I am perfectly aware that it is unusual, but I beg your Lordship to observe that every thing in the course of these proceedings is likewise unusual. I beg your Lordship to consider that the proceedings upon the last trial will fill, as I am well informed by the short-hand writer, 1,600 close printed octavo pages. That trial lasted nine days; eight days trial, and one day between. The nature of the indictment is such, that it has been impossible for me to guess what would come before your Lordship: it has been equally impossible for me to instruct my counsel; they cannot know the passages of my life, and from what I have seen on the last trial the whole passages of my life, and those which are not passages of my life, but are only imputed to me, will be brought before you: how is it possible for my counsel to know those particular facts which are only known to myself? If ever there was a case where indulgence was fit to be granted, it is this; yet your Lordship will forgive me for saying that I claim it as my right by law, and do not ask it as an indulgence.” After more argument to that effect, the Chief Justice says, “Mr. Tooke, you have been furnished with that which the law considers as the necessary means to enable you to make your defence; you have had counsel assigned to you; they have had, or might have had, access to you at all seasonable hours; that is what the law allows you. You have taught the Court not to use the word indulgence, and you have pointed out to them their duty, that they are to give no indulgence. I am apprehensive that it would be considered as an extraordinary indulgence if the Court were now to do that which you ask, because that is not done to other prisoners; it was not done to another prisoner who went immediately before you, who had the same stake that you have, nor is it done to all other prisoners who do come to this bar, and therefore the Court are not permitted without doing injustice to others to grant that which you ask upon the ground upon which you ask it.” Then he goes on—“But you have mentioned another circumstance extremely material, and which will, in my mind, warrant the Court to do that which you think they ought not to do, to indulge the prisoner. You have stated the condition of your health, and that in the place in which you stand your health will suffer: the Court has no desire to put you under any difficulties; they wish that you should be enabled to make your defence in the best way imaginable; and if the situation in which you stand is really likely to be prejudicial to your health, and therefore likely to disable you from making your defence in the manner you might otherwise make it, I shall put it to my Lords to consider, whether you may not be indulged with that which you have now asked.
“Mr. Tooke—The Court will forgive me only for saying, that if, on the footing of indulgence, the Court shall not think fit to grant what I ask, I hope I shall not, after that decision, be barred from my argument upon it as a point of law.” Then the Chief Justice says—“You must state your whole case upon any matter that arises at once: the proposing it first in one shape, and then going on to state it in another, is carrying us on without end; if you mean to argue this as a point of law to be sure we are ready to hear you.” Mr. Tooke: “I beg your Lordship not to misunderstand me; I did so mention it at first, and did ask it not as an indulgence, if your Lordship will be pleased to recollect: I did mention, that if there were objections I should then argue it in point of law, thinking that I am well entitled to it by the principles, by the letter, and by the practice of the law: I did not mean to change my ground; I beg your Lordship will be pleased to recollect I excluded the idea of indulgence: I did not mean to take first one ground and then another, but I thought it possible I might save the time of the Court, therefore I left it to your Lordship to collect the sense of the Court even upon the score of health, which your Lordship mentions, to save time, and not to waste the time. I understood very well that after a decision I should not be permitted to argue it, and therefore I mentioned that, but not to change my ground; and therefore if your Lordship should find upon the score of what you call indulgence, I suppose in a different view of the word that I am accustomed to take, I rather understand that your Lordship means you are willing to grant it me upon the score of my health, in that case I do not desire to waste the time of the Court; provided it is granted to me, I am very happy and shall be glad to avoid the argument, if your Lordship will be only pleased to give me some intimation of your opinion.” The Chief Justice, after consulting with the other judges, says:—“Mr. Horne Tooke, I have consulted my Lords the Judges who are present, they feel themselves extremely disposed to indulge you on the score of your health; they think that it is a distinction which may authorise them to do that in your case which is not done in other cases in common; they cannot lay down a rule for you which they would not lay down for any other man living, but if your case is distinguishable from the case of others that does permit them to give you that indulgence which you now ask”—Then Mr. Tooke says:—“I am very much obliged to your Lordships, and am very well content to accept it as indulgence or any other thing. Undoubtedly it is very acceptable to me, and very necessary for my health; I am glad to save the time of the Court.” On that ground, after having attempted it on the ground I have stated, he was removed to the inner bar.
Now that case seems, I think, to establish that it is, in the judgment of the several judges who were here upon that occasion, a thing which ought not to be done unless under very special circumstances, and we ought to be on our guard against doing that which might have the appearance of treating one kind of felony, and one rank or class of persons, in a different way from another; or of intimating that, because a person is somewhat of a superior rank, he is to be treated in a different manner; and we are anxious not to do it in the way of favour or on any such ground as that, and we feel that we cannot grant this on the ground on which you put it. This seems to my learned brother and myself to be the same in fact as Mr. Tooke’s, though not quite so strong—a desire in the party to communicate with his counsel, which will exist in every case. It was not thought sufficient in that case: he was indulged only on the ground that his health was such that it would suffer from his remaining in the ordinary place: and here no such cause is alleged.
Mr. Kelly. It is my duty to acquiesce in the decision of your Lordships. I beg to say I did not put this on any distinction of rank.
Mr. Justice Maule. No; that we understand perfectly, and the Court is disposed not so to put it. I said, that lest there should be a feeling, though it was not put so, that there might be a distinction drawn between this and any other case on that ground. What other difference is there between Mr. Zulueta, charged with felony in slave trading, and any other person coming to that dock, charged with any felony of any other character, requiring wealth and capital to carry it on?
Mr. Kelly. I did not desire, in the least, to press it on that ground; on the contrary, I disclaimed it: I mentioned that which was the principal ground—that the documents are all in a foreign language; and that which I submitted to your Lordship was entirely my own suggestion, and not Mr. Zulueta’s: I acquiesced at once, as I ought, in your Lordship’s decision.
Mr. Justice Maule. The Court is so constructed that you can approach Mr. Zulueta, though he cannot approach you.
(The Defendant took his place within the Bar, and was arraigned on the Indictment for Felony.)
Clerk of Arraigns. How say you, are you Guilty, or Not Guilty?
Defendant. I am Not Guilty.
Clerk of Arraigns. If you object to any of the gentlemen who are called, you may make the objection before they are sworn; and it is my duty to inform you that you have a right to be tried, being a foreigner, either by a jury of half foreigners and half English, or by a jury entirely English.
Defendant. I have no wish; I am as safe in the hands of Englishmen as of any body.
The following Jurymen were called and sworn:—
1. John Foote.
2. William Jackson.
3. Robert Nagle.
4. Charles William Knight.
5. Michael Jones.
6. Richard Jessop.
7. William Hawksworth.
8. James Gillard.
9. Edward Findlay.
10. James Parker.
11. John Godfrey.
12. James Gordon.
(The Jury were charged with the Prisoner in the usual form.)
Mr. Serjeant Bompas. Before I make the address which it will be necessary to make to the jury, will your Lordship allow me to apply on behalf of a witness, a gentleman who took the notes in short-hand of what took place before the Committee of the House of Commons? I, of course, do it with the consent of the counsel on the other side; it is, that he may be now examined, which will remove all question as to the propriety of the proceeding; that he may be now sworn and state that this blue book contains a correct account of what took place: that will, of course, be subject to such objections as may be made by my learned friend.
Mr. Kelly. My Lord, I understand that Mr. Gurney’s presence is required, for the purpose of justice in Wales, under an order from the Home Office. I perfectly agree, that it shall be taken upon his evidence that this blue book contains a true account of what took place before the Committee, subject to any objections as to the admissibility of the evidence, the matter standing as if Mr. Gurney had given his evidence in its proper order.
Mr. Joseph Gurney, sworn. Examined by Mr. Serjeant Bompas.
Q. Did you attend as short-hand writer before the Committee of the House of Commons, at which these proceedings were taken in short-hand?—A. I did.
Q. Is this book printed from your short-hand notes?—A. Mr. Zulueta’s evidence. I took the evidence of Mr. Zulueta; not the whole.
Q. Did you take the evidence of others?—A. Yes; of some others.
Mr. Serjeant Bompas. On behalf of the prosecution we admit that the other parts are taken from the short-hand notes: we shall want the evidence of Mr. Zulueta.
May it please your Lordship,
Gentlemen of the Jury,—It is my duty to call your attention to a case of very considerable moment. I am quite sure you will feel that all cases, in which the liberty and welfare of any person standing as a prisoner at the bar before you are concerned, are matters of considerable importance; but I cannot but think that this is one which will deserve your very particular attention. The case is, to you and to most persons, one of a novel description as a matter of trial. It is very rarely indeed, that offences under the Act to which your attention will be directed can be brought before a jury as the subject of their investigation. It necessarily will include a variety of facts, some of them being in some degree complicated; and it requires, therefore, that careful discrimination which I am quite sure you will be quite ready to give. To the prisoner, of course, it is of paramount importance, standing here before you upon his trial on such a charge as that which has been presented against Mr. Zulueta, and calls for the utmost possible attention. I do not consider that I should keep from you one thing which has been mentioned already in your hearing, that the prisoner at the bar is a person of wealth, and rank, and station. He is a merchant of the city of London. I am quite sure that that cannot make any difference in your consideration of the case, unless by increasing that interest which necessarily is excited by the respectability in life of the person who is standing before you on his trial, exciting you to greater vigilance to see that perfect justice is done as between him and the law. I am quite sure that you will see, that if he be innocent, you will, as you would in respect of every individual who stands before you upon his trial, take care that he shall not be convicted; but if, on the other hand, the evidence, when it is laid before you, shall satisfy your minds that he is guilty, it can in no manner or degree lessen the guilt of a person against whom such facts shall be produced, that he is in a station which should teach him better to obey the law of his country. So far as any such topic can be urged, on the one side or the other, to excite your utmost anxiety and most careful vigilance to ascertain the truth, I, on behalf of the prosecution, should feel that it is of great importance it should be exercised, because the truth, and that alone, ought to be, and I trust in all cases is, the object desired by the public prosecutor.
Gentlemen, the kind of charge is one that will require your very particular attention. The prisoner stands charged, “that he did illegally and feloniously man, navigate, equip, dispatch, use, and employ,” that is, that he did employ—that is the particular term to which I would direct your attention—“which in and by a certain Act of Parliament made and passed in the 5th year of the reign of his late Majesty King George the Fourth, intituled ‘An Act to amend and consolidate the Laws relating to the Abolition of the Slave Trade,’ was and is declared unlawful, that is, to deal and trade in slaves.” The other counts vary the charge in some degree, but in nothing that I believe will be material for your consideration, except that in the four latter counts he is charged with shipping goods on board the same vessel for the purpose of accomplishing the same object.
Gentlemen, it is now happily a matter of history of some considerable period back, that there was a contest in this kingdom by those who were anxious to put an end to what they rightly considered one of the greatest crimes staining human nature. On the 25th of March, in the year 1807, was accomplished that victory, I may say for humanity, by which, as far as the laws of this country could accomplish it, this kingdom was separated from that course of crime, which probably is almost the greatest blot that rests upon human nature; I mean, that that Act was passed which is called “the Act for the Abolition of the Slave Trade.”
Gentlemen, you are aware that before that time persons of wealth—for persons of wealth alone could engage in such an occupation, and unfortunately that which was called the slave trade was a source of great wealth—before that time no doubt persons of wealth engaged in that trade. That Act, as far as regarded any public Act, of course extinguished them; but from time to time, from that time to this present moment, though not of course engaged in public or in the immediate visible commerce which was the subject of condemnation by that Act, it has been more or less continued, and the course of the law has been from time to time by more and more stringent penalties as far as possible to put an end to it as respects this country; and it is impossible that you should not be aware that one great object of this kingdom in all its negotiations with all foreign countries is, as far as possible, to create one great combination among all the civilized part of mankind, uniting in extinguishing that which is a crime on the part of all engaged in it; and therefore it has become above all other things the duty of this Government, as far as relates to any individuals living within this kingdom, to the utmost possible degree to put an end to any connection with it of any sort or kind, and to prevent any persons who continue in this kingdom, and are subject to its law, from being in any way whatever connected with that which is considered a crime of the greatest magnitude; and it is with that view that the Act of Parliament which you have heard mentioned in the indictment, the Act of the 5th of George the Fourth, chap. 113, was passed, in order as far as possible to extinguish all connection of any individuals in this kingdom with the slave trade, and by a severe penalty to put an end to any such transactions. Indeed, when we consider the penalty, it is such as shows that the Legislature intended to render the punishment most severe: it is a penalty which subjects every person connected with that trade to transportation for fourteen years. But every single individual who, through any connection with that trade, is torn from his friends in Africa, and sent in the miserable way in which they must necessarily, if they survive the horrors of the voyage, be removed from that country to an interminable life of slavery—every individual suffers double and treble the penalty which is inflicted upon the criminal engaged in the trade; and therefore I feel satisfied that we shall not consider that penalty too severe, provided only the offence is fully proved: and the severity of the punishment ought to excite, I admit, to the utmost degree, your watchfulness to see that it is fairly and satisfactorily brought home to any man, because I take it any person on behalf of the prosecution who calls the attention of a jury to the enormity of any crime, does it under the most anxious caution that, in proportion as the crime is great, so the jury ought to extend their utmost care and attention to see that it is fairly and satisfactorily made out.
Gentlemen, you are aware that in cases of this kind the transactions must necessarily extend over some considerable time. The distance of the place to which the transactions ultimately relate, the difficulty of obtaining from Africa the various documents necessary to be produced to ascertain the guilt or innocence of the party, necessarily occasions the lapse of some considerable time; and in the present case it will be necessary for me to refer to transactions that extend over several years. In this particular case a trial took place in respect of the vessel in Africa, and afterwards in England, which necessarily occupied some considerable time; and no doubt the necessity of obtaining the requisite documents occasioned the delay for a still further lengthened period.
Gentlemen, the charge made against the prisoner is, that he employed a vessel in order to accomplish, that is for the purpose of accomplishing, the dealing in slaves, and that he sent goods for the purpose of accomplishing that object, namely, the trading in slaves; and the nature of the charge, which I will mention generally before I enter into the particulars of the evidence, is this, that the prisoner at the bar employed a vessel—and you will of course hear the manner and mode in which that was done, and observations will occur to you on the detail of the facts—that he sent goods in that vessel to supply persons who are merchants in slaves, individuals holding slaves in Africa, to enable them to keep the slaves while they were there, and to provide the means for bartering those slaves, so as to enable them to transmit them to Cuba, or the Havannah, as the case may be. Of course it need not be said for one moment that openly and publicly in this kingdom no man could do that, which to the eyes of all would appear to be dealing in slaves; it would be the object of attention of every man: and it is necessary I should detail the evidence I have, in order to show first, that this vessel named the Augusta, and the goods which were shipped on board that vessel were in fact for the purpose of supplying a factory situated at the Gallinas, a port on the Coast of Africa, and that the prisoner at the bar knowingly and willingly was the person who had employed the vessel, knowing that it was employed for that purpose. Of course the persons who were employed, the persons more deeply interested, were persons residing abroad; but we charge (and before you convict the prisoner you must be satisfied of that fact) that he knew the object, and lent himself to that object, and shipped the goods with that view.
Gentlemen, to give you an account of the progress of this vessel, I must direct your attention so far back as the year 1839. In the year 1839 a vessel, the Augusta as she has been since called, was then trading under the name of the Gollupchick, under Russian colours, fully equipped for slave trading. At that time she was captured by a gentleman, who will be called as a witness before you, Captain Hill, and taken into Sierra Leone as a vessel trading in slaves, of which there was no doubt. I have stated to you that she was sailing under Russian colours. At that time the captain on board was named Bernardos, one of the three persons named in this indictment, though not present. He was the captain, and the crew were entirely Spaniards. The Russians, you probably know, have not settlements requiring the dealing in slaves. She was taken to Sierra Leone to be condemned, it being believed that the Russian colours were employed merely as a pretence. The court before which she was to be tried was a mixed commission of Spanish and British. That court considering that they had no right to try the case of a vessel trading under Russian colours, she was not then condemned; the case was not there inquired into. It is sufficient to say that she was brought over from Sierra Leone to England with her crew, and with a number of the British crew who had taken her in there. Bernardos being the captain of her, he and his own Spanish crew came to England in that vessel. She was then perfectly equipped as a slave trader. Upon her coming to England the Russian consul claimed her as a Russian vessel. She was then sold at Portsmouth. She was sold to a person of the name of Emanuel, who purchased her for 600l., paying 30l. as the auction duty; the expense therefore would be 630l. Upon her being sold, part of the balance of the purchase-money was paid to Bernardos, which had been expended on account of the vessel.
When this vessel was brought to this port, a letter was written by Mr. Zulueta: the contents of that letter I have no means of knowing; we can do no more than give evidence of the writing of that letter. I shall show a letter was written; it will be for the prisoner at the bar or not to produce that letter. She was sold, as I have mentioned, to Mr. Emanuel; and upon that we have a letter written by the prisoner at the bar, Mr. Zulueta, to Thomas Jennings, in respect of the purchase of that vessel, and I will call your attention to that letter. The letter is dated London, the 20th of August, 1840. It is a letter that was found in the vessel when she was subsequently captured by Captain Hill. The letter is in these terms, dated “London, 20th August, 1840,” directed to “Thomas Jennings”—Thomas Jennings is one of the three persons indicted: he was the person who was captain of the vessel, and was captured in the vessel subsequently—“Sir, in reply to your letter of yesterday, we have to say that we cannot exceed 500l. for the vessel in question, such as described in your letter, namely, that excepting the sails the other differences are trifling from the inventory. If you cannot therefore succeed at those limits, we must give up the purchase, and you will please act accordingly. Zulueta and Company.—Captain Jennings, Portsmouth.” The purport of this letter is, that Zulueta and Company would purchase the vessel if they could get her for 500l., but that they would give no more than 500l. for the vessel. Gentlemen, in fact I shall be able to prove to you that this being dated the 20th of August, 1840, very shortly after that, I believe on the 29th of August, Messrs. Zulueta paid for that vessel 650l.; and the way in which they paid that for it was this—they gave a check to Bernardos, the captain of her when she was captured under the name of the Golupchick, whom I shall prove to have received the money at the bank in London, and to have gone down to Portsmouth, and together with Jennings to have gone to Emanuel, and paid this money to Emanuel for the purchase of the vessel. There will, I believe, be no doubt whatever that that money came from the prisoner at the bar, Mr. Zulueta; for I shall be able to show that that very same money received by Bernardos, the very same notes amounting to 650l. were paid to Emanuel at Portsmouth. There will be therefore no doubt that the money was paid by the prisoner at the bar.
Gentlemen, the vessel remained for some time at Portsmouth; she remained there, I believe, till the beginning of October. There will be no doubt what was her object. Immediately after her purchase—almost immediately after—I shall be able to show you, by its having been found in the vessel, that there was a letter written by Bernardos—
Mr. Kelly. Surely you are not going to read letters found in the vessel, without connecting the defendant with the vessel or with the letters.
Mr. Serjeant Bompas. If you object to the letter, I will state the ground on which I conceive it is evidence.
Mr. Kelly. I object to no letter written by Mr. Zulueta or any of his clerks; but letters found months after, when all his connection with the vessel had ceased, surely you cannot read.
Mr. Serjeant Bompas. I shall show that this letter was on board the vessel at Portsmouth on the 25th of September, 1840—a letter written by the man who received the money for the purchase of her to the captain, who was to conduct her to Africa: of course there are two facts here which it will be necessary I should prove; first, that her destination was the Gallinas; and secondly, that her object was to assist in the dealing in slaves: and it shall be my object to show, or I shall fail and you will give your verdict for the prisoner, that this was with the knowledge of Mr. Zulueta.
Mr. Kelly. Show that by proper evidence, but do not read letters which are not evidence.
Mr. Serjeant Bompas. I have a right to read this letter; you may object, if you please.
Mr. Kelly. I do object, because it is impossible with effect to object to it hereafter. Here is a gentleman on his trial for felony: I do not object to the reading of any letters from his house of business, though they may not have been written by himself; I do not object to any letter being read which was written by Mr. Zulueta himself, or any letter which my learned friend, Mr. Serjeant Bompas, can undertake to say Mr. Zulueta had seen or known; but letters written by third persons, over whom he had no manner of control—letters written by a person included in this indictment, but not on his trial, and which I have no means of explaining—cannot be evidence. Mr. Zulueta has no means of explaining this letter, the writer of which was unknown to him: and I submit that it would be more fair, and more according to the ordinary course of business in this country, if my learned friend were to arrive at the facts, which he says he can prove, by that which is properly evidence, and to leave the reading this letter to a separate discussion on any argument which may then be raised as to its reception in evidence.
Mr. Serjeant Bompas. I do not object to my learned friend interposing in objection to the reference to this letter, because I am willing to admit that it is desirable to exclude every effect which might be produced by the reading of a document which may be objectionable; and while it is my duty to open that which I feel to be evidence against the prisoner, I will not open any thing as to which I feel a substantial doubt. The letter I am now proposing to put in is a letter written by Mr. Bernardos, the man who received the money after that first letter I have mentioned, and after all which occurred with respect to the purchase, and it has reference to certain objects in respect of his destination, and giving him—not instructions in the sense of ordering him—but directions and instructions as to the course of that voyage. My object is to show, that at the time the vessel was at Portsmouth, the destination was fixed, and he received direction in that respect from a person whom I have so connected with Mr. Zulueta as to show that that man Jennings was the purchaser with the money of Zulueta of this very vessel, Jennings being the captain, and ultimately one of the owners; and I shall show directions from Mr. Zulueta. I cannot conceive how that can be objected to.
Mr. Kelly. I undertake to say not a shadow of doubt shall remain on your Lordships’ minds that this is not evidence when the facts are before the Court. To be opening the contents of the letter, under such circumstances, I submit is not justified.
Mr. Justice Maule. Brother Bompas, I do not think this is so clearly evidence that it should be opened to the Court. It is very difficult to decide whether a document is evidence or not till the facts are brought before us.
Mr. Serjeant Bompas. Gentlemen, I am quite willing to be wholly under the control of the learned judges in the conduct of this case. I would not myself, as I think I ought not, to open that which is really substantially doubtful, and if I had felt this so, I would not have mentioned it at all.
Mr. Kelly. I am quite sure that my learned friend would not have done so if he had felt that it was open to objection. I am quite sure that my learned friend from the first desired that nothing should be stated, which in his opinion could not be brought home to the defendant himself.
Mr. Serjeant Bompas. After the observation of Mr. Kelly, I will say no more with respect to this. I have to prove two things; first, what was the object of this vessel. I have to prove what it was intended to do. It may or may not in many instances be shown that there was the hand of Mr. Zulueta in what was done; but if I show to your satisfaction that he was aware of the circumstances, and was one of the parties, it is not necessary that I should show that his was the hand by which every individual act was done: therefore, I beg to keep these two things quite distinct. I shall show what was the object and destination of the vessel; and undoubtedly I shall show you, or I fail in this case, that he was conscious of the object and intention of the employment of the vessel.
Gentlemen, upon the vessel, at the time she was at Portsmouth and when she was sold, there were on board her part of the equipments which had previously existed of the Gollupchick. In order in one way to equip a vessel directly for slave trading—to put her in a situation in which she could take slaves in—it is necessary that there should be the means of very considerable supplies of water. There are commonly leagers. It is not necessary there should be leagers, unless when the occasion requires the carrying an extraordinary supply of water; where that is required, it is necessary there should be the means of carrying such a quantity of water in the vessel; and there were on board this vessel leagers—that is, large vessels containing many hundred gallons of water, ten or twelve or fourteen feet in diameter. At Portsmouth several of the leagers then on board were taken to pieces, and the staves and heads left on board the vessel. You are aware that it would be quite impossible for such a vessel, with leagers, or any fittings up of that kind, to leave this kingdom in order to go to a place on the coast of Africa, where it is known the slave trade is carried on; it would be quite obvious what their object was; and these vessels were accordingly taken to pieces, and the materials left in the vessel.
It was observed, also, that the vessel afforded the means of having slave decks placed. Where a vessel leaves a place, such as Spain, or some place where she may leave with impunity with all her equipments complete, they have slave decks in the vessel—that is, decks with about two-and-thirty inches from one deck to another, in which the slaves lie. These they were not able to set up under these circumstances; but there are decks placed that as many as possible may be carried. These decks could not be existing in this country: they could not be allowed to go from this country. There are, however, places, and some screw-bolts where they can be placed, and by which they could be fastened: they might be speedily put in on the coast of Africa, so as to fit the vessel for carrying slaves there: of course it could not be done here, but the screw-bolts might be put in, and the slave decks fixed in an incredibly short space of time; and thus she might be immediately prepared for receiving the slaves when she was in Africa.
I shall also, I believe, show that a person was applied to at Portsmouth to enter to go to the coast of Africa. When she was there, letters were received by Jennings; and I shall prove certain circumstances by a witness, who I shall call before you, who was present when the vessel was taken, a letter found on board her, which was written from London: and I may state that at once, as my learned friend has admitted that whatever was written by the house would be evidence against the prisoner at the bar; and I should state that he himself said before the Committee of the House of Commons on his examination, that he himself had the management of the whole of this business. I will read the exact words—“I have managed all this business;” therefore there can be no doubt that what came from the house he is responsible for. The letter to which I will call your attention was received on the 26th of September, 1840.
Mr. Kelly. My learned friend will pardon me for a moment. I have said I shall not think it right, in a case of this sort, to interrupt my learned friend in any attempt he may make to read documents which proceeded from the house, but I must not therefore be taken to agree to their admissibility.
Mr. Justice Maule. You will not consider the admissibility of the evidence as established until it is offered in evidence.
Mr. Serjeant Bompas. Of course every thing I read, you will consider subject to proof. If I have been misled in any fact, you will remove it from your minds. Not that I would state any fact, if I did not believe it to be founded in truth. This is dated—“London, 26th September, 1840. Captain Thomas Jennings, Portsmouth. Dear Sir,—We have received your letter of yesterday, whereby we observe that the sum we have remitted you will not be sufficient to cover all the expenses to clear the ship. We much regret you have omitted mentioning the sum you require, which prevents our remitting you the same by this very post, thus causing a new delay in leaving that port, so contrary to our wishes. You will therefore write to us to-morrow, that we may receive your reply on Monday morning, informing us of the amount necessary to finish paying all your accounts and expenses, to remit you the same by Monday’s night post, in order that you may be able to sail for Liverpool on Tuesday or Wednesday at the furthest. You must not omit stating the amount required; and waiting your reply, we remain, very truly, dear sir, your obedient servants.” Then the signature which was to that letter is cut out. Then it says, “According to our Liverpool house notice”—the prisoner, Mr. Zulueta, is connected with a house at Cadiz, as well as a house in London—“According to our Liverpool house notice you will go there to the Salthouse Dock,” superscribed “Captain Thomas Jennings, Broad Street, Portsmouth.” That letter was regularly received in the course of business, as to which business Mr. Zulueta says, “I managed it.” I believe I shall show you the handwriting of a part of it; but the signature was cut out. I believe I shall show it was cut out previous to its being found.
This being the letter, Mr. Zulueta having furnished the money for the purpose for which it was demanded, and having desired that Captain Jennings will send up an account of all the money expended, and that he should go to the Salthouse Dock at Liverpool; accordingly he went to the Salthouse Dock at Liverpool. It is impossible Mr. Zulueta’s name should be mentioned as the owner of a vessel used for such a purpose. It is quite clear, that if he knew it, his name would not be used as the owner of the vessel, and therefore this vessel was purchased in the name of Thomas Jennings. How far he was really the owner you will be able probably to form an opinion from the remainder of the evidence with which I shall furnish you. When it was purchased, no papers of any kind were handed over. She was a condemned vessel. She was bought without any register, and taken as a Russian vessel, and there being no evidence of ownership, she was purchased as such.
Gentlemen, she went to Liverpool; and when she went to Liverpool, I shall have to call your attention particularly to what took place at Liverpool. At Liverpool a charter-party was entered into, to which I will call your attention:—“Memorandum of the charter-party. London, 19th October, 1840. It is this day mutually agreed between Mr. Thomas Jennings, master and owner of the good ship or vessel called the Augusta, of the burthen of tons, or thereabouts, now lying at the port of Liverpool, and Messrs. Pedro Martinez and Co., of Havannah, merchants.” Pedro Martinez and Co. were merchants, having a house at Cadiz. It will appear from Mr. Zulueta’s own statement that they had a house also at the Havannah, that they were known slave dealers. According to Mr. Zulueta’s own evidence, he believed at the time they were slave dealers.
Mr. Kelly. If you say that, I beg you to read the evidence. He never did say that.
Mr. Serjeant Bompas. “Do you know the nature of the trade of Pedro Martinez at the Gallinas?—I know from general report that Don Pedro Martinez himself is supposed to deal in slaves, and I believe it is so.” That is at page 682, [question 10398].
Mr. Clarkson. That is an examination in 1842.
Mr. Kelly. These are statements made in 1842. Have the kindness to read the answer to [10413], in the next page.
Mr. Serjeant Bompas. Every word he said in evidence will be read; but an interference in that form and that manner is not proper, and I shall not submit to it.
Mr. Kelly. I merely meant to correct what I supposed to be an inadvertent mistake.
Mr. Serjeant Bompas. My learned friend is quite right to interfere, if he thinks I am under a mistake. My object is to call your attention to what he said at the time; every word will be read to you, and you will form your own opinion upon it. “Is he known at the Havannah as a dealer in slaves?—I do not know, but I believe so; I do not know why it should not be known at the Havannah, if it is known in other parts.” My learned friend will make his own observation upon that, I shall read that as evidence before you; you will consider whether it is sufficient proof that he knew that Martinez & Co. dealt in slaves.
Gentlemen, I was reading to you the charter-party of the ship: it proceeds in these words—“That the said ship being tight, staunch, and strong, and every way fitted for the voyage, shall, with all convenient speed, load from the factors of Messrs. Pedro Martinez & Co., a cargo of legal goods, which the said merchants bind themselves to ship, not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and furniture; and being so loaded, shall therewith proceed to Gallinas, on the coast of Africa, or so near thereunto as she may safely get, and deliver the same; after which she may be sent on any legal voyages between the West Indies, England, Africa, or the United States, according to the directions of the charterers’ agents (restraint of princes and rulers, the act of God, the Queen’s enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation of whatever nature and kind soever, during the said voyage, always excepted). The freight to be paid on unloading and right delivery of the cargo, at the rate of 100l. sterling per calendar month that the ship may be so employed, commencing with this present month, all port charges and pilotages being paid by the charterers, and days on demurrage over and above the said laying days at pounds per day. Penalty for non-performance of this agreement 500l. The necessary cash for ship’s disbursements to be furnished to the captain free of commission. The charterers to be at liberty of closing this engagement at the end of any voyage performed under it on settling the freight due to the vessel. The captain being indebted to the charterers in certain sums as per acknowledgment elsewhere, the freights earned by the vessel to be held as general lien for such sum, and in any settlement for such freight, the said advances to be deducted from the vessel’s earnings.—Thomas Jennings.”
Then, here is the addition to the charter-party:—“I, Thomas Jennings, captain and owner of the ship ‘Augusta,’ of this port, hereby I declare, I have received from Messrs. Pedro Martinez & Co., of Havannah, through Messrs. Zulueta &, Co., of this city, 1,100l. sterling for the disbursements of the said ship, her fitting out and provisions, which I engage myself to repay with the earnings of the same, according to the charter-party entered this day with the said gentlemen, and under the following conditions:—1st. All the earnings of the ship will be accounted for and applied to the said Pedro Martinez & Co., they furnishing the necessary cash for all expenses, repairs, provisions, and crew’s wages, including 15l. per month for my salary as captain. 2nd. At any time, when the said gentlemen may think proper to close the charter-party, I will make out the account, and deliver to them, or to their representatives, a proper bill of sale for the said ship and all her appurtenances, to cover the balance due to them in the said account. 3rd. That I am in no other way responsible for the settlement of the above-mentioned debt, but with the said ship and her earnings; and that the said Messrs. Pedro Martinez & Co. will take on themselves the insurance and risk on the vessel.—Thomas Jennings.”
Now, Gentlemen, it will be most material for you to consider the effect of this charter-party, and what is called the loan. It is nominally chartered by Thomas Jennings, as the captain of the vessel, to Pedro Martinez & Co. through Zulueta & Co.; and Zulueta & Co. are the persons employing that vessel: there can be no doubt of that. Now what is the effect of these two documents? Is it that Jennings is the real party who engages to pay? No such thing. “I am in no other way responsible for the settlement of the above-mentioned debt, but with the said ship and her earnings; and that the said Messrs. Pedro Martinez & Co. will take on themselves the insurance and risk on the vessel.” So that he is not in the slightest degree indebted to them: he is not bound to pay, but it is only that he is indebted to them on the vessel. Can he say I will pay you the money and keep the vessel? No; whenever Messrs. Martinez & Co. choose, the vessel is to be made over to them. Can he make over the vessel and apply the money to his own use? No; he has only 15l. a month, and can be required to make over the vessel whenever they please. But that would be the ordinary transaction in peace time; the money would be advanced to him; the vessel would be the security for it at any one moment at which Martinez & Co., or their representatives—that is, Messrs. Zulueta & Co.—might call upon Jennings to deliver up the vessel to them. He is always accountable to them for the earnings of the vessel, and he is in no respect personally responsible. The question you will have to decide is this: Is this a method by which it shall appear that Thomas Jennings is the owner of the vessel, so that no other person shall have a right to say that he is the owner? He is to appear to be so; but the other parties have a right to say, “Give the vessel up to us;” he borrowing, but having nothing but the vessel; he being to receive his wages of 15l. a month as captain. It will be undoubtedly a very material consideration whether this is matter of concealment; a mode in which Jennings is to be made the apparent and not the real owner, or whether he is the real bonâ fide, owner. It is clear he would be in no respect responsible under this arrangement entered into at Liverpool. You will have, in connexion with the evidence, to examine the statement made by Mr. Zulueta. The letters, which will be read, undoubtedly treat Zulueta & Co. as purchasers on behalf of Martinez & Co.; and the charter-party is made by them as agents for Martinez & Co., by which the factors are to ship these goods for Africa as agents for Martinez & Co.
Gentlemen, the vessel went to Liverpool; she was there loaded in the ordinary course, according to the account given by Mr. Zulueta in his evidence. He is asked, “You did not imagine that in being the instrument of sending lawful goods to any part of Africa, you were doing any thing which required concealment?—Nothing at all of the kind; and the proof of that is, that in the bills of entry in Liverpool any body could see our names as consignees of the vessel, and see entries made in our names of every thing.” No doubt, gentlemen, according to that charter-party, if it was a bonâ fide charter-party, shippers might ship goods on board the vessel in their name; every thing would be in their name; and the papers on board that vessel might be in the name of Zulueta, and not in the name of Captain Jennings: but if Captain Jennings was the owner of the vessel, and Messrs. Zulueta the factors of Martinez, he would have only to receive the goods shipped on board that vessel by Messrs. Zulueta. It is clear a cargo was put on board that vessel, and if she was going on a legal voyage, there is no reason why every thing should not be in the name of Messrs. Zulueta, and why the ship’s papers should not be in their names as the owners of this vessel. But all the ship’s papers were made out in the name of Thomas Jennings; the bill of lading is made out as shipped by Thomas Jennings; and none of the shipments are made by these factors, who, according to the charter-party, were to ship the whole. No doubt it will be for you to consider how far that is a wilful act of concealment or not.
Gentlemen, this vessel was going to the Gallinas. The Gallinas is a port in Africa, about 200 miles from Sierra Leone. It is necessary you should know the nature of that port. It will be impossible but that persons engaged in trade should know the nature of that port. It is a settlement, or rather a native State, that consisted of a harbour and a river, and it is called the Gallinas. The sole trade carried on there is the slave trade. It consisted of a few, I think there were five, of what are called barracoons. It is hardly necessary I should state that a barracoon is a place in which slaves are kept; that slave traders by attacking a village, or other means, take possession of the people, who are taken down to warehouses erected for their use—barracoons as they call them—places where they are kept until an opportunity arises, whereby they may be shipped off either to the Havannah or to Cuba: the two great places to which slaves are sent from this place are the Havannah and Cuba. The place consists of five barracoons, as they are called; five warehouses, where the slaves are kept. It is not a trading place in any other way. Slaves are purchased by the barter of cotton goods or other goods from England, or by doubloons, which are raised by drawing bills on persons in England. There is no other trade but the mere slave trade. In the barracoons and places, these unfortunate people are kept until an opportunity arises for selling them, to be disposed of either in Cuba or the Havannah. One was kept by a person of the name of Rolo, another by a person named Ximines, another by Alvarez, another by a person of the name of Buron, and another by a person of the name of François. This vessel and cargo therefore were dispatched to a place which was wholly a slave trade establishment. There is no other trade whatever. I believe there was not at that time, nor had been long before. Since the slave trade has been stopped there, it is somewhat a different thing; but at that time it was a place used entirely for the slave trade, and the goods which were sent there were used for barter, and the doubloons for which the bills were drawn were employed in the purchase of slaves. The three consignees of this vessel were the three persons I have first mentioned, three persons having barracoons in the Gallinas. It is possible that a name of a fourth may appear in the evidence. You will remember that the fourth is named Buron. The vessel therefore went out from England with a cargo consigned to these three persons, Rolo, Ximines, and Alvarez.
Gentlemen, when the vessel got some little distance from England, I believe a hundred miles from Cork, she encountered a considerable gale: upon that the captain determined to go to Cadiz; the wind was unfavourable for Cadiz: she was about a hundred miles from Cork, and there was a perfect facility of going to Cork or to Falmouth, where they might have arrived in the course of a day. It would take 18 or 19 days to go to Cadiz, I believe 19; but the captain determined to go to Cadiz, the crew resisted this, and they came to the determination that some of the crew should be discharged at Cadiz, Mr. Zulueta having a house at Cadiz, and Mr. Martinez too; and it was at Cadiz she received the dispatches which were found on board, as to the consignees, as to what was to be done with the shipment on board, and what was the object of the shippers. Part of the goods appear to have been landed there by the firm of Zulueta & Co., and Mr. Zulueta received an award for the injury which had occurred, the injury the cargo had sustained in that gale. I believe the principal part of the tobacco was landed. It will appear by the bill of lading the shipment of goods was by these three persons. The tobacco was landed by Mr. Zulueta of the house in Cadiz, and the house in London received compensation for the loss upon that, they having shipped the same in London.
Gentlemen, the vessel afterwards sailed from Cadiz. She arrived, I believe, about the 6th of December, and sailed in the early part of January. She was captured on the 7th of February, 1841, by Captain Hill, when she came near the coast of Africa. It happened that Captain Hill, whose duty it was to capture those vessels, either Spanish or English, which had dealings in slaves, met with her, and he was not a little surprised at seeing so soon a vessel he had captured as a slaver, under the name of the Gollupchik, come under English colours with a new name. He boarded her, and saw Jennings on board. She was not then, of course, to use the technical term, equipped as a slave trader; she having sailed from England with goods on board, it was impossible she should be. He asked to whom she was consigned: Jennings refused to tell.
Mr. Kelly. Are we to have the conversations with Jennings, the master, long after the felony is supposed to have been committed by Mr. Zulueta in England? Is the conversation with every person, in every quarter of the world, to be given in evidence?
Mr. Serjeant Bompas. I am not going into any conversation between the master and the captors, merely the simple fact. Captain Hill being about to seize the vessel, the dispatches of the vessel were at length brought out with great reluctance; the captain, however, delivered up the letters, and told Captain Hill those were the letters to the consignees. They are letters with certain directions.
Mr. Kelly. My Lord, I must object again to what I conceive is most irregular on the part of my learned friend, who is proposing to give in evidence that which took place between Captain Hill and Jennings. My learned friend has opened a very complicated case, and now my learned friend attempts to describe the contents of papers given by the house of Martinez & Co. to the captain, some months after the vessel had sailed from England. Mr. Zulueta, at the bar, is charged with a felony in having equipped and employed this vessel for the purposes of the slave trade. My learned friend is opening the case against him on the charge of felony, and he is supposed to be affected by instructions given by other persons months afterwards—persons in Cadiz, over whom he had no control—instructions which he never saw until they were alluded to in certain proceedings in which he had no concern whatever. My learned friend is stating a part of the contents, and stating them most incorrectly. I apprehend Mr. Zulueta is undoubtedly liable for the consequences of any act he has done, any act he has sanctioned, any thing done by his firm with his knowledge; but that he cannot have used as evidence against him papers delivered months after the supposed commission of the crime, and long after he could have interposed—months after the vessel left England. My learned friend knows he has no evidence affecting the defendant touching her afterwards; but he is opening the contents of papers given by a foreign merchant months afterwards.
Mr. Justice Wightman. I did not understand Brother Bompas to state that the prisoner was aware of the contents of those papers.
Mr. Kelly. My learned friend does not pretend now to state that, but he describes them as containing instructions given to the captain; they were not instructions given to the captain.
Mr. Justice Wightman. He does not state that they were.
Mr. Serjeant Bompas. It is important that the objection should be made, if at all, now. The evidence no doubt is most important, and I thought it was possible that my learned friend might object. It is fair to the understanding of the case that the objection should be stated, and I am obliged to my learned friend for taking the objection now, if it was to be taken. I wanted to call his attention to it, not wishing to allude to the contents of those documents unless they are admissible in evidence; but it will be quite impossible to call the attention of the jury to these facts, unless I know whether the evidence is admissible.
Mr. Justice Maule. How can we decide that until we know what they are?
Mr. Serjeant Bompas. My object is to offer them as evidence in the case, and therefore to open them as evidence.
Mr. Kelly. My learned friend is stating what I did not understand him to state before, and therefore your Lordship will allow me to place this point of the case on its proper basis. When he is opening this part of the case, in order that if there is no doubt on the admissibility of the evidence it may be at once taken, I do at once make the objection; and I think your Lordship will pardon my saying a few words more on that which my learned friend considered rather an interruption, or a protestation, than an objection. My learned friend charges Mr. Pedro de Zulueta with having committed a felony, that felony having been committed in England in the months of July, August, and September; that is, that Mr. Zulueta equipped and dispatched a vessel, and shipped goods on board that vessel, for the purposes of the slave trade. That vessel left England, I think, in the month of October—
Mr. Serjeant Bompas. The 9th of November.
Mr. Kelly. We shall have no dispute on those facts. That vessel, purchased under circumstances which will probably appear more clearly in evidence. It is stated by my friend that Zulueta and Company purchased the ship; no doubt the house of Zulueta and Company interfered as agents for the house of Martinez and Company. That vessel was dispatched from England, and left England in the month of November, 1840. Whatever the prisoner at the bar has done in respect of the dispatching of that vessel, was done and completed then. The crime, if he committed any, was completed before the month of November, 1840. That is the charge upon which he is now on trial. I quite agree that, if since November, 1840—if instantly he had held any conversation—if he had written any letter—if he had held any conversation that might be used against him as evidence of the purpose for which he used and dispatched that vessel, which he had dispatched in the month of November, 1840—
Mr. Justice Maule. With respect to that portion of the opening of my Brother Bompas, the question is pretty much the same as with respect to that mentioned before.
Mr. Serjeant Bompas. Will your Lordship just hear how I present it?
Mr. Justice Maule. It is open to the same mode of dealing with the matter depending on the question—whether it is so clear that it will be admissible, when it comes to be offered in evidence, as that it ought to be stated. If Brother Bompas proposes to argue that, he may go on now.
Mr. Kelly. I am in your Lordships’ hands; it is immaterial to me when I am heard. I was only going to add, which will go much to the argument, that on a common civil case, something written, said, or done by another person in a distant country, some months after the time when he is said to have committed the offence charged, is no evidence against him. If it were, Mr. Zulueta might have (as I believe he was), he might, with the rest of his firm, have been engaged in shipping goods on a lawful merchandise according to the British laws, in consonance with natural equity and right, and the character of the transaction might be completely changed. I can very easily imagine a case in which a British merchant—nay, a British trader of any kind—may ship a quantity of muskets to the coast of Africa, or the coast of Spain: nothing can be more simple than the proposition—a trader may ship a quantity of muskets to Africa, to Spain, or to France; he receives the goods, and ships the goods; and now he has done all, and the ship sails; and he may have died after the shipment; another person possesses himself of those muskets, and he employs them in war against the Queen of Britain—Is that to be used in a criminal charge of felony against him? But that is just the case here. These gentlemen of this house of Zulueta and Company are concerned in shipping a quantity of goods—I might have taken the objection whether as principal or agent, but I will not raise that—here is the ship, and here are the goods; they ship them for the coast of Africa: the shippers remain in England; they have nothing more to do with the transaction; the vessel putting in to Cadiz, whether by previous design or stress of weather I will not say; another person, over whom the shippers have no more control than they have over the inhabitants of the kingdom of Spain, give certain orders, which I will suppose contemplate an illegal object—Are those to be used as evidence against the shippers here on a charge of felony? My Lord, I have done; I shall wait until I hear how my learned friend can justify the giving that in evidence against Mr. Zulueta.
Mr. Serjeant Bompas. My Lord, if I had any reasonable doubt that I could give this in evidence before your Lordships, I conceive I ought not to interfere with the view your Lordship has thrown out with respect to the letter I before tendered; but I apprehend there can be no doubt. I may be mistaken in the view I have taken: I may be wrong.
Mr. Justice Maule. Unless you feel it quite material to the case to state the nature of the evidence you propose to offer, I should think that in a matter of this kind it might be advisable to abstain from the statement of it. The circumstances which a learned counsel proposes to offer in evidence ought to be such as leave no doubt in his mind that he shall be able to bring them home to the prisoner, or that which is not ultimately made evidence against the prisoner may make an impression which is not justified. If you have any doubt that you shall be able to make this evidence, Mr. Kelly is justified in his objection, and so long as there is a doubt whether it is admissible, the Court think it is not fit it should be stated. If in your opinion that is doubtful, you have a right to be heard; but if you consider this as likely to be a long case, it will be desirable to abridge it so far as you can, to bring it within such a compass that it may receive the attention of the jury, and that time should not be unnecessarily occupied in these discussions.
Mr. Serjeant Bompas. Gentlemen, I am always most ready to adopt the suggestion which the Court are kind enough to hold out. I feel that a counsel, standing for the prosecution, stands in a somewhat different situation from another person, and their Lordships, sitting to do justice, and fairly taking care that if there be a doubt, that doubt shall be taken for the benefit of those charged with a crime. I feel that as to the admissibility in evidence, if there is a doubt, it ought not to be stated to the jury. It is not for me, as counsel for the prosecution, to say that their admissibility is perfectly certain. It would be very hard if the view taken by counsel in a criminal prosecution were not to be regulated by the judgment of the Court. It is enough that I should state, that, in my opinion, it will be necessary that these letters should be admitted in evidence, and that you should direct your attention particularly to them. It will place an additional obligation on the learned judges at a future stage, if I am not allowed to call your attention to them, to see that they are so brought before you as that you should understand them. There is no weight intended to be given to the evidence beyond that to which it is entitled, but it will be my duty to bring them fairly to your understandings, when I tender them, that you may see the bearing of them. The reason of my offering them in evidence will be given when I do offer them in evidence. This is not a decision that they are not admissible in evidence, but that it is better I should not open to you what may leave an impression which ought not to be made, unless I show that this is evidence. By the course taken, if this is not evidence, there will be no impression made. There is no doubt that very great importance to the prosecution will rest on the decision of this question; it will have a very great effect in the decision of the question, whether from this time or not there may be perfect and absolute impunity to any person who chooses to conduct a trade of this kind, provided only he is not so unwise as to advertise himself before-hand as a man who has connexion with the ultimate procedure of the vessel. Gentlemen, at present this matter is perfectly in debate. I shall offer this to you in evidence, and then it will be shown how it applies. This vessel, as I was stating when I mentioned certain things found on board, was captured by Captain Hill, was carried to Sierra Leone, and from thence brought home to England, and there was an end of the voyage.
Gentlemen, one material question that you will have to consider when the case is before you is—What was the object of the destination of the vessel? For what purpose was the vessel sent to the Gallinas? Was she sent for the purposes of fair trade, or was she sent to the Gallinas with goods to be used for the purposes of the slave trade? No doubt the vessel would not be perfectly equipped on going from Portsmouth; but the state of the vessel then you will have to consider, and I believe I shall be able to show that at that place the leagers were taken to pieces and put on board in such a manner as that they could be easily put together when she got out, and that there were existing in the vessel a very considerable number of shackles usually used for the purpose of confining slaves. You are aware that the slaves, the male slaves, are almost always put into this situation between the decks, and confined also by shackles. I shall be able to show that the leagers were taken to pieces and stowed on board the vessel, and that there were a very large number of shackles on board the vessel. Now, what was the object in going to the Gallinas? If any directions which were given in respect of that object are not brought out, you must find it out as well as you can in the circumstances of the vessel. She was going to the Gallinas. Mr. Zulueta was acting on behalf of a person whom he admits he believed to be dealing in slaves. The whole view of the case must be left in some degree to you, after all the evidence laid before you, supposing the evidence to which I have called your attention to be ultimately received.
Gentlemen, it will be my duty to call your attention to the evidence which Mr. Zulueta volunteered before the Committee of the House of Commons, and I can only say you will have to keep it in mind as applicable to the other evidence if it is admitted. If it is not admitted, you will take it as it is applicable to the case. I have mentioned one or two sentences, and my learned friend has interfered to represent that I was giving the effect of that evidence unfairly before you. I shall call your attention to the material parts, and leave you to apply it to the rest of the evidence. He was examined on the 22nd of July, 1842. It would appear, from the questions proposed to him, that some persons had made statements before the Committee of the House of Commons, which, being intended to reflect upon him, had been inclosed to him for his consideration, and that he felt himself obliged to appear to meet those statements. That is the way in which the evidence was given. He was not summoned before them—they could hardly summon him to give an account of that which was intended by previous evidence to reflect upon him; but, under those circumstances, he went before the Committee of the House of Commons. The Chairman says, “You have seen some statements that have been made to this Committee upon the subject of a transaction in which your house was engaged; have you any observations to offer upon it?—I received from the Clerk of the Committee a letter accompanying a copy of certain evidences, which are Mr. Macaulay’s evidence of the 10th of June, the 14th of June, and the 15th of June; and Captain Hill’s evidence of the 29th of June, the 4th of July, and the 6th of July. I would beg first of all to refer to the letter which I had the honour to address to the Chairman. My reason for wishing to be examined before this Committee was, that the statements contained in the evidence which I have mentioned are all of them more or less incorrect, some of them totally so. I will begin by stating what has been the nature of our, I will not say trade, for we have not had a trade ourselves, but of our connexion with the shipment of goods to the coast of Africa. We have been established as merchants for upwards of 70 years in Spain, for nearly 20 years in this country, and we have had connexions to a large extent in Spain, and in the Havannah, and in South America, and several other places; among them we have had connexions or commercial intercourse with the house of Pedro Martinez & Co. of the Havannah, and with Blanco & Cavallo, of Havannah. With them we have carried on a regular business in consignments of sugars and of cochineal, which they have made to us; and in specie received by the packets from Mexico and other places. We have several times acted for them here in this country, buying raw cotton for instance at Liverpool, and re-selling it very largely; that has been principally with Pedro Martinez & Co.” “They are general merchants?—They are general merchants, and their transactions with us have been of that nature. As general merchants we have bought stock here for them rather largely; and in the course of those transactions we have received orders from Don Pedro Martinez & Co., of the Havannah, and from Don Pedro Martinez, of Cadiz, to ship goods for the coast of Africa; never from Pedro Blanco, and never from Blanco & Cavallo.” “Have you received orders from Pedro Martinez for shipments for the coast of Africa?—Yes, in the course of business we have received orders to ship goods upon the funds in our hands belonging to them, and we have shipped the goods described in the letter, and sent the bills of lading to Pedro Martinez; but, beyond that we have never had any returns from the coast of Africa, nor any control of any kind from the moment the cargoes left the ports of this country.” “You have had no interest in the result of the adventure?—No, nor any notice, nor any acquaintance, nor any correspondence with any one upon the coast; we have never had any kind of knowledge, either subsequently or previously, of the shipments, except the mere fact of buying the goods and shipping them.”
It is quite correct that they had had communication, as will appear subsequently by evidence in respect of this vessel; they actually received the amount of the insurance on the damaged goods landed at Cadiz. “Your whole interest was a commission upon the transaction?—Entirely. The extent of those transactions has been so limited in the course of nearly 20 years that we have been in this country, that the amount of the invoices that we have sent out has been something like 20,000l. or 22,000l. in the course of all that time. That is one part of the operations we have performed. The other operations are the acceptance of bills drawn by people on the coast; among them Pedro Blanco when he was there, upon ourselves, on account of Blanco & Cavallo, of Havannah, upon funds which Blanco & Cavallo had in our hands; for instance, the people at the Havannah, or in Spain, open a credit with us, and we accept the bills of the parties on that credit with us just the same as we should do with any other correspondent in any other part.” You will hear probably in evidence who this Pedro Blanco was. I shall prove that he was a person extensively engaged in the trade in slaves.
Then the evidence proceeds:—“You would have funds in your hands, arising from some commercial transactions between you and the Havannah merchant or the Cadiz merchant; and Pedro Blanco, upon the coast of Africa would draw upon the credit of those funds, being authorised by the Cadiz or the Havannah merchant?—Yes; and if Pedro Blanco had drawn five shillings beyond that, we should have protested, and in some instances we have protested. With regard to the vessel alluded to in this Report, the Augusta, our part in that concern has been simply that which appears from one of the letters: that is to say, Pedro Martinez, of Cadiz, had made choice of Jennings to buy the vessel, and lent him money to buy the vessel; because Pedro Martinez wanted him to have a vessel in the trade for the purpose of taking his goods to their destination.”
Gentlemen, it is always satisfactory in a case of this kind to know, if a person be charged with any offence, as Mr. Zulueta was, that a copy of the evidence is sent to him; and when a person under such circumstances makes a statement, it is satisfactory to know that if that statement be true, it can be perfectly and easily proved by him, that there is no doubt about it. No doubt evidence must be given sufficient to charge the prisoner with the offence before he can be called upon for his defence; but if he makes a statement, it is satisfactory to know that, if there is a defence, it is absolutely in his power. Mr. Zulueta is one of a firm; there is no difficulty therefore in proving all their transactions. If he has letters limiting him to 500l., there are means of proving that beyond all question.
He goes on: “I have now described the three kinds of operations in which we have been concerned, and our knowledge of all of them terminated with the execution of the orders of our correspondents. We had nothing more to do than to follow the orders of the purchaser in shipping the goods. With regard to the purchase of the vessel by Jennings; Jennings is a man who has been employed some time by Martinez; he has served Martinez as a chartered captain, and Martinez having been satisfied with his services, agreed to lend him that money on the security of the vessel, provided it did not exceed a certain amount; which was all the interference we had with it, just to see that a certain amount was not exceeded, 500l. or whatever it was.” “Then you were to furnish Captain Jennings with money for the purchase within a limited amount, say 500l., credit being given to him upon you by Pedro Martinez, of Cadiz?—That is just the point.” There is no doubt, gentlemen, as it would appear, that the letter I have read to you had been published, and was known to Mr. Zulueta, in which he writes and tells Jennings that they will not proceed in the purchase further than 500l. Certainly it was not known at that time that we should have the means of showing them that there was in fact no such limit to the purchase adopted, and that that letter could not be used for the purpose, for Mr. Zulueta does actually give 650l. for the purchase of that vessel.
He is then asked—“The Augusta being purchased by money advanced by your house for Martinez and Company, of Cadiz; and she then became the property of Pedro Martinez?—No, she became the property of Jennings; the money was lent to Jennings, and he bound himself by giving security on the vessel to answer for the amount. It is a mercantile operation, which is not unusual.” If it had been a mere loan and mortgage of the vessel, there can be no doubt of the fact; but it is for you to say whether that is the nature of the transaction. “You advanced the money to Captain Jennings for the purchase of the vessel, Jennings transferring the vessel to you as a security for the amount so advanced?—That is just the description of operation, which is a very general one in business.” Then he goes on to describe the transaction: “What is the object of such an operation?—I know very little, or almost next to nothing, of the operations in those parts of the world; but the object of such an operation I apprehend to be this: a vessel chartered with a stranger must be governed by the different clauses of the charter-party; the charterer must be limited to time and to places; and by Martinez having the vessel owned by a man with whom he could have a better understanding than with others, he might always send more advantageously articles from the Havannah to the Gallinas, and from here to the Gallinas. When I say articles, I mean legal articles.” “What advantage would there be in Mr. Jennings taking the articles rather as the owner than as captain under Martinez; was not he commander of the vessel as well as owner of the vessel?—Yes.” “He is made the owner, instead of being captain?—He is the owner as well as the captain of the vessel; he stands indebted to Martinez, and gives a bottomry bond for the vessel.” Gentlemen, the documents I have offered to you, which are the charter-party and the other papers relating to the vessel, do not amount to a bottomry bond; if there was one, there can be no difficulty in the prisoner proving it to you.
Then he is asked: “Does Mr. Jennings upon this transaction make all the freight to his own profit?—Certainly; whatever he does is to his own profit.” That certainly was not the fact; for he was obliged to give up the vessel whenever called upon. “He is not, then, an agent for Martinez?—No, he is a person to whom Martinez lends the money to buy the vessel; whatever profit he derives is his own. Martinez has this advantage, which to a mercantile man is very perceptible, that he has got a charter with a man who stands in that relation towards him which gives him a sort of control over the vessel. If I, as a stranger, charter a vessel for Martinez, and he has spent one, two, or five days more in landing goods than the charter-party allows, I should make a claim for it; I should say, ‘You must keep to the charter.’ Now, when Jennings is indebted to him for the favour of a loan for the vessel, he is not upon a similar footing.” “So that he gets the vessel more under his own control?—Yes; in saying this I am putting an hypothetical case, but I do not know the mind of Martinez himself.”
Then he is asked: “You acted in this transaction merely as agent in the usual manner, as you would have acted for any house in any part of the world?—Exactly; if Martinez had told me, ‘You have got 500l. in your hands, pay that to Captain Jennings,’ I should have known nothing more of the transaction; I should have paid the money. But Martinez did not wish to go beyond a certain amount; and he says, ‘You exercise control, do not allow the man to pay more than 500l. for the vessel.’” Gentlemen, the letter treats it as a purchase for Zulueta. There may or may not be those directions; if there were, it is in his power to prove them; and it should be recollected that there was not time to get fresh instructions after the declaration that he could not exceed 500l. before he paid 650l. for it: it is only in a few days. If a man says, when charged with theft, “I bought the goods of such a person,” that is no evidence at all, unless, he proves that he bought them, which he may easily do if it is the fact. So here, if the prisoner says, though this letter, which purports to be the letter of instructions for the actual purchase, limits it to 500l., I received directions from Martinez to purchase at 650l., that is proved with perfect facility, for it must be by letter, and there are other persons in the firm who can prove it for him. “But beyond the purchase of the vessel and the shipment of the goods, the other arrangements and the subsequent transactions were entirely between Jennings and Martinez & Co.?—Most assuredly; except with the order of Martinez, I do not know how we could have done any thing with him in any way.” That of course will be proved.
Then it goes on: “Though the process of hypothecating a vessel may be usual between British merchants, is it usual to cover a transaction of Spanish slave trade with the British flag, by means of such an arrangement as that described to have taken place in the case of the Augusta?—In order to answer that question, it seems to me that it is fair that I should ask where is the transaction of covering, and where is the slave trade transaction? I know positively of my own knowledge that there is no such thing at all connected with the Augusta. If I had an opportunity, I could make my affidavit of that.” He is asked again: “Do you mean that you know that the Augusta was not engaged in any slaving transactions during the voyage upon which she left Liverpool?—Most assuredly not; in fact my testimony is hardly required of that, because every thing proves that. When she was detained, it was never said that she was upon a slaving operation at all. Before she left this port, after she was bought, she was completely rendered useless for that purpose.” Now leagers and things of that kind must be taken to pieces, for she would not be allowed to have those on board; but the staves forming them were left on board in a state in which they might very soon have been made ready for use. When the question comes, whether she was engaged in a slave trading transaction, you are to examine the grounds of the prisoner’s denial with reference to the other parts of the testimony, and how far that can be relied upon.
This question is then put: “The charge is, that she was engaged in carrying goods to a person engaged in the slave trade; not that she was engaged in the slave trade herself?—I most certainly say, that I do not know whether the person is so engaged or not.” “Is it usual to cover a transaction of Spanish trade with the English flag?—I am not aware that a Spanish merchant is prohibited chartering an English vessel.” No doubt a Spanish merchant is not; but if an Englishman knows that that vessel is being chartered for a slave trading transaction, and he is one of the persons chartering her for that purpose, I have no hesitation in stating that he is guilty under this Act of Parliament, for he is chartering a vessel to accomplish that illegal object; and if merchants in this country would not accept bills drawn by slave traders, if they would not send goods from this country to be employed for the purpose—in fact, the trade could not be carried on at all. Then he is asked: “But is it lawful to employ the British flag to cover a vessel that is not owned by a British subject?—I say that that vessel is owned by a British subject.” “By whom?—By Captain Jennings.” It is for you to say whether that is a covert, or a bonâ fide ownership. “Was not the money with which she was purchased, the money of Pedro Martinez—It seems to me that English captains and English subjects are not prohibited from borrowing money from Spaniards; she was bought with money lent by Pedro Martinez to Captain Jennings for the purpose.” Of course there can be no difficulty in showing that that was lent by persons connected with that firm, if it is true; if it is not true, of course it will not be shown.
Then he is asked: “Do you mean that the money was a loan to Captain Jennings, at the time he paid it for the vessel?—It was a loan to Captain Jennings.” “Do you mean that the ship was then Captain Jennings’s property?—It was.” “Was it in his power to sell that ship at any port he pleased?—There was a mortgage upon the vessel.” “You have stated that yours is an agency trade?—It is so, and in the multitude of business, any one can understand that 20,000l. in 15 or 20 years, can only be a mere trifle in the business of any merchant, without laying claim to a large business; and in following that business, we have executed shipping orders.” “To what part of the coast of Africa has that business been chiefly conducted?—I believe almost exclusively to the Gallinas.” I believe you will find the Gallinas is simply a slave trading place, and nothing else. “Have the goods that Mr. Martinez has ordered to be sent to the Gallinas, been all sent to the same individual?—No, to different individuals; sometimes to Pedro Blanco, who was for a certain time an agent of Pedro Martinez on the coast, and sometimes we have sent a bill of lading drawn in this way to order; we have sent it to Pedro Martinez as a voucher against his account.” “Do you know the nature of the trade of Pedro Martinez at the Gallinas?—I know from general report that Don Pedro Martinez himself is supposed to deal in slaves, and I believe it is so.” All his goods have been sent to the Gallinas. “Is he known at the Havannah as a dealer in slaves?—I do not know; but I believe so. I do not know why it should not be known at the Havannah, if it is known in other parts.” “Is a ship which is hypothecated liable to be foreclosed at any moment at the discretion of the mortgagee?—It depends altogether upon the terms of the mortgage. If the mortgagee says, ‘You must give me the money when I ask for it,’ of course he must sell the vessel if he has not got any thing else.” Read on in the same way this document, “but he is not bound to give the money in any shape or form.” “He would always have to deduct whatever freight had been earned. When the security may be called upon to be effective, depends upon the nature of the transaction between the parties.” “Your house had nothing to do with any letters that might be put on board the Augusta after she sailed from this country?—Nothing whatever.” “The Augusta was seized on the coast of Africa on the charge of slave trading?—I believe that was the case.” “Did you not appeal against that condemnation?—Yes, there is an appeal by the owner.” “Before the Privy Council?—Yes.” “That appeal is not yet decided?—I believe not.” “You stated that your transactions with Africa for Martinez have amounted to about 20,000l. in 15 or 20 years. What has been the amount of your whole transactions with Blanco and Martinez of the Havannah during that period?—Perhaps 100,000l. or a larger sum. For instance, we have received more than 40 or 50 cargoes of sugar from the Havannah consigned to us, and cigars; and we have received bills of lading of specie, shipped at Mexico, to be sold here, and bar gold, and things of that sort.” “Have you reason to suppose that the whole of that large commerce is subservient to the carrying on of the slave trade by the house of Blanco & Martinez at the Havannah?—I do not know; I know that they have large transactions in general business. I know that a short time ago I got 40,000l. or 50,000l. of Spanish bonds in the market for Martinez. I know that he is a large speculator in Spanish bonds and in securities of state.” “Is that speculating in Spanish bonds on account of the house at Cadiz, or the house at Havannah?—Speaking technically, I should say it was on account of the Cadiz house.” “The question related to the commerce of the Havannah house?—Pedro Martinez is a Havannah merchant. But with regard to Havannah merchants, we have received large consignments of sugar, cochineal, and sometimes Mexican goods, brought to Havannah, and shipped to us here.” “In what course of business have the proceeds of those consignments been disposed of; have they gone in sending supplies to the coast of Africa?—Out of that large amount of money 22,000l. is the amount of all the goods that we have sent to the coast of Africa in 20 years.” “Of all descriptions?—Of all sorts and kinds; I have gone through the invoice-book and found them out.” “Have the proceeds generally been disposed of by drafts from the parties themselves to your house?—By the parties at Havannah, when the exchange turns to their advantage.” “Have you reason to suppose that a large portion of the trade that they carry on at the Havannah is the slave trade?—I had no reason to know any thing of the kind; I have known more of their transactions with the slave trade since these things have been mooted than I ever knew before; I have had more knowledge of these things lately than I ever had in my life before; and when I say ‘I,’ I beg to state that I ought to state ‘we,’ for all my partners are in the same situation.” “Have you been employed by the house at the Havannah to ship manufactured goods from this country to Havannah, suitable for the African trade?—We have sometimes shipped goods to the Havannah of the same kind as those that were in the Augusta; cotton goods and other things of that sort.” “Has that been recently?—In the course of our operations.” “How many years ago?—In the course of these 15 or 20 years that we have been engaged in business with them; all that I could see in a moment by my books.” “Have you sent any goods of that description to the Havannah recently?—Not very recently; I think not for some years.” “Have you sent any goods of that description since you first began to send goods out direct to the coast of Africa?—They have been mixed; I cannot draw a distinction between the two destinations; some have gone to the Havannah, some to the Gallinas.” “Have those supplies of English manufactured goods, which heretofore went to the Havannah, to be used there for promoting the slave trade, been more recently sent direct from this country to the coast of Africa?—No, I do not think that is the case; I should think the contrary is more likely to be the case; but I think we have shipped in some months, or in some years, partly to the Havannah, and partly to the Gallinas.”
Then comes a statement as to the mode of carrying on the trade, which will be read to you, but I do not think it necessary to read it now. “Have you shipped English manufactured goods direct to the coast of Africa, on behalf of both those houses?—Such goods as were in the Augusta, I have shipped for one party only. With regard to the house of Blanco & Carvalho, and the house of Pedro Martinez & Co., with both of them I have carried on a general large business. But to Blanco & Carvalho I never shipped a single piece of goods of any kind, except some sugar mills to the Havannah; and with regard to the house of Pedro Martinez, we have shipped such goods as those by the Augusta.” “From your general knowledge of the trade of the house of Pedro Martinez & Co., is it your opinion that the goods which you so shipped to the coast of Africa were destined to be employed in the slave trade?—I do not know, they may be for any thing that I know.”
Now, gentlemen, I would humbly submit, that if they have that reason to know, that they do believe that the goods are so employed, and if they send the goods, it is not for them to shut their eyes and say, “I do not know.” It is like the case where a person receives stolen goods and no questions are asked, and he gives money in exchange for them. Such a person is as much guilty of receiving stolen goods, as if the person who brought them told him the fact. As to hundreds of persons whom you try for receiving stolen goods, they do not know, they cannot know positively that they are taken out of such a house; but they are delivered to them in such a way, or are concealed in such a way, that there is no doubt they were dishonestly come by, and that is as good evidence as if they had known where they were stolen. So it is not enough for a person to say, “I do not know; they may not for aught I know.” If he believes, and you are satisfied that he must have been aware of the fact, then the case is clear; it is no defence to say, “I shut my eyes, and do not know; they may be for aught I know.”
Then it is asked: “Has it come within your knowledge that the house of Martinez & Co. are exporters from Africa of the native produce of Africa?—No, because I never tried to get any knowledge of their transactions there of any sort.” “Have you ever received consignments from them, or on their behalf of palm oil, gold dust, or ivory, from the coast of Africa?—Never; we never have received any thing from the coast of Africa whatever. With regard to all these transactions, it will perhaps appear strange to the Committee, that I should not know more of the coast of Africa, having shipped things there; but if we had shipped to the amount of 100,000l. to the coast of Africa, or carried on any considerable trade there, we should certainly have known more about the coast of Africa; but in transactions of a very large amount, an invoice occasionally of about 2,000l. or 3,000l. of goods was a thing that we sent as a matter of course, and did not trouble our heads about, especially as the remuneration we got was a mere trifle, not of itself worth pursuing, if it had not been for the general business we had.”
Then the question is put: “Is there any other part of the evidence which has been given that you wish to observe upon?” and he answers, “It is asked here in [question 5086], ‘Who was he?’ the answer is, ‘The name is mentioned in the Parliamentary Papers as being connected with the purchase of a slave vessel, Mr. Kidd; and it is mentioned in connexion with that of Mr. Zulueta, of London.’ Now, as to Mr. Kidd, the very first thing I ever knew or ever heard of his name was to see it here. I never heard of his name at all. I never had a letter from him or through him, or knew any thing of the man whatever. That is with regard to myself. With regard to my partners, I can say the same; I have been making inquiries about it. My father knew there was such a man upon the coast, but I did not know even that, though I have managed all this business. Our house never had a letter from the man, or knew any thing about him.” Then it is asked, “You have no connexion with Mr. Kidd in any way?—No, nor any knowledge of him. Then in the next answer it is said, ‘Zulueta, the gentleman in London, to whom the vessel was sent, and who sold her again to her former Spanish owner, is a name well known on the coast in connexion with the slave trade?’ Now what is known on the coast I really cannot pretend to say, but I believe that not many persons can say that which I can say, that neither myself, nor my father, nor my grandfather, nor any body in our firm, has ever had any kind of interest of any sort, or derived any emolument or connexion from the slave trade. My father had at one time an interest in a bankrupt’s estate at the Havannah, upon which he was a creditor. There were some slaves on the estate, and they formed part of the property assignable to the creditors, and my father got the slaves assigned to him; because the other gentlemen and the creditors were not of the same opinion, he got them assigned to him, and made them free; and that is all the connexion we have ever had with any slaves in the world. I do not know how far that may be considered irrelevant to the point, but I state it because we are here mentioned three or four times as connected with slave dealers, as a name well known in connexion with the slave trade. That sort of statement is rather a difficult thing to deal with.” “If it is meant to insinuate by these observations that you ever had any other connexion with the slave trade, than being the shipping agent of goods which were sent to a man who was a dealer in slaves, you entirely deny it?—I assure the Committee, that although I have a general notion as to what interest Blanco and Martinez have in slaves, yet, if I was put upon my oath to make any particular statement, I really could not, because I do not know it. Of course I believe it; but my personal knowledge amounts only to that which the knowledge of what we read in a newspaper amounts to.”
Now, gentlemen, we know too the trade of these parties in the Gallinas. If the prisoner believed that these goods were sent out for the purpose of carrying on the slave trade, and he did send them out, and you are satisfied that the name of Jennings was used as a mere cover, and the whole affair shows his knowledge, then I apprehend he is guilty within this indictment; and it is no defence to say, “If I were put upon my oath, I could not swear that the parties were slave dealers, because I do not know it.” If these goods were sent out in order to accomplish the trading or dealing in slaves, if that was the object of it, the statute says it is criminal, and the party is liable to punishment, for that is all that is ever done in England: the parties who engage in the actual transactions must necessarily reside in Africa. What was meant to be prevented, was the sending any thing out from this coast that could be so used. It is not sufficient to say, “I believe these might be used for the purpose of slave trading:” that would not affect him.
Then he is asked, “There was nothing upon the face of the transactions which you had with those parties, which spoke of a connexion with traffic in slaves?—Nothing whatever.” Why, would any human being believe that there would be any thing said of the kind? That would of course be kept secret. The vessel would not reach her destination, if it was avowed that she was going out for the purpose of slave trading. “It is well known, that, fifty years ago, it was in the ordinary course of business in Cadiz to insure operations in slave trading. My house at that time were underwriters, and it was notorious that a policy of that kind would never enter the doors of our house; and nobody would come to offer such a thing to us upon any terms. It is notorious, both here and in Spain, that we set our faces distinctly against having any interest of any kind in the slave trade.”
Then it is put as a question: “It is further stated, ‘It appears that it is a regular thing sending vessels to him, that is to Mr. Zulueta; if they come to England to him, he sends them to Cadiz, and they get out again to the Havannah and come again into the trade.’ Have you any observation to make upon that?—It is all untrue, the whole of it; I never received a vessel from those gentlemen; there has been nothing of the kind.”
The question is: “Have you any thing further to state upon the subject?—There are several things I have marked; for instance, such as this, ‘You are not bound to suppose that a man will make a bad use of that which he purchases.’ If I wished to put my statement upon that footing, I should have done with it in a moment, for I knew nothing of the use they were put to. I bought goods, but as to what use was made of them I knew nothing whatever. But that is not the position which I wish to assume. It is said here, that we sent goods or vessels to Pedro Blanco. To that I say, that we never sent either goods or vessels to Pedro Blanco.” Now that is certainly very extraordinary, for a very little while before, when the question was put to him, “Have the goods that Mr. Martinez has ordered to be sent to the Gallinas been all sent to the same individual?” he answered “No, to different individuals, sometimes to Pedro Blanco, who was for a certain time an agent of Pedro Martinez.” Then here he says, “We never sent goods or vessels to Pedro Blanco.” “In answer to [Question 5474], it is said by Mr. Macaulay, ‘I stated, that it appears that it is a regular thing sending vessels to him, that is to Mr. Zulueta; if they come to England to him he sends them to Cadiz, and they get out again to the Havannah and come again into the trade. My answer was intended to describe only the course of that particular transaction, and not to apply to any other case.’ I never received a single vessel from the coast of Africa at any time, nor any body for us.” “Then that statement is entirely untrue?—Totally, from beginning to end; we never did so; and nobody for us, and nobody to our knowledge, or with our connivance; I deny it in the most distinct manner. In answer to [Question 5487], Mr. Macaulay is asked, ‘Have you any thing further to say with regard to the connexion of Zulueta with the slave trade?’ The answer is, ‘I would refer to his connexion with the Gollupchik, which was lately captured. In that case it appeared that the vessel went out direct to the Gallinas from London.’ That is the same vessel as the Augusta, which I have already explained; it formerly bore the name of Gollupchik.” Then the Chairman says, “Have you been concerned in the purchase of vessels frequently for Pedro Martinez or Pedro Blanco?—We have sometimes bought such vessels here as we could resell at the Havannah, such as the Arrogante, which we have bought.” “Upon orders?—Partly on orders, and sometimes on our own account on speculation.” “For what particular trade were they calculated when they reached the Havannah?—I think for the same trade which they were calculated for when they were sold here.” “For the conveyance of merchandise?” The answer is, “As well as anything else. They were sold here publicly.” There is no doubt that vessels which are fitted for carrying goods may also be adapted for carrying slaves. Then Mr. Forster asks the question, “If it was legal for them to be sold here, you considered that it was legal for you to buy them?—I never had any doubt of the legality of buying here, or of selling them again afterwards.” “Mr. Wood. But the questions appertaining to the carrying on of the slave trade do not confine themselves within strictly legal grounds, but they have other more important considerations attaching to them?—As to that point there may be a difference of opinion; I would be very sorry indeed, for the sake of catching the approval of other persons, to make a disclaimer of any particular set of opinions whatever; but I believe the only point with which the Committee have to do, is the legal point. As to the moral point, it seems to me, that I am to judge of that; upon that point, I think I have stated quite enough, having stated distinctly that I never had any connexion, nor derived any profit from the slave trade whatever.”
There are then several questions: in answer to which he states, “That he never had any thing to do with slave transactions.” Those I leave to my learned friend to read. Then [question 10451] is, “Had you ever employed Jennings before?—Jennings had had charge of vessels before, chartered by Martinez, and hence the connexion between Martinez and Jennings. There are some captains in all trades that make a great deal of difficulty about every thing, and others that do not; of course merchants like to deal with those that do not, more than those that do.” Then the Chairman says: “It would appear from [Question 5087], that your name is supposed to have been mentioned in a Parliamentary Paper as connected with a slave trade transaction. Will you refer to page 38, in Class B, Paper of 1839 and 1840, which is the place referred to in the answer, and see if there is any trace of your name in that transaction?—I do not find my own name there; I only find an allusion at the bottom to the name of Pedro Martinez, but in a manner in no way connected with me, and stating a circumstance which I never knew. In [Question 7965*], it is stated, ‘The Augusta had touched at Cadiz on her way out from England?’—The answer is, ‘Yes, and landed part of her cargo at Cadiz, although it was consigned to be delivered at Gallinas.’ Now Captain Hill, who has given this answer, must have known why she touched at Cadiz, and why she discharged part of her cargo; for it must be in the log-book of the vessel. It was because she was nearly wrecked in her passage; she put into Cadiz in distress; and there she landed a part of her cargo, which was tobacco which was rotten, and sold for the benefit of the underwriters. Now that has not been stated here; but I think Captain Hill must have known it, because it is in the log-book of the vessel which he took.” “And the log-book he must have read?—I should think so; because if he has not done that he has done nothing. All I mean to say is, that it is an ex parte statement.” “It was not intended when she left England that she should put into Cadiz?—Most certainly not; all the facts of the case show that she went there because she was obliged. I have not seen the log-book, but it must be there; because in the log-book the captain is bound to enter those things, and whoever captured the vessel must have seen the log-book of course. In answer to [Question 7967*], it is said, ‘Messrs. Zulueta must be aware that it is contrary to law to act as agents, or otherwise, for the shipment of goods that are to be employed in the slave trade; they were bound to do nothing illegal; they are merchants residing in England, and they must conform themselves to the laws of England, and they cannot by the laws of England plead ignorance of those laws.’ Now I and my partners are British subjects, and therefore we are bound by the law, and we must obey the law; and I say that to endeavour to elude the law is criminal in my estimation of things. In the answer to [Question 7970*], it is stated, ‘I have endeavoured to be particular in making it appear that this vessel was chartered to a place where there were no constituted authorities.’ I think that in the Gallinas there are constituted authorities. It is the first time that I ever heard that it is illegal for any merchant to ship goods for any places without ascertaining beforehand whether there are constituted authorities there. I believe that if they like to send goods to any place they may do it; and as to the fact of there being constituted authorities in the place or not, I do not see what that has to do with the question; besides, there have been such things as treaties made with persons at the Gallinas, so that there must be some constituted authorities there. But I do not know why I should be called upon to know whether there are constituted authorities at the port or not. Then it is stated, in answer to [Question 7971*], ‘As far as I am able to give my own opinion, I believe that Messrs. Zulueta were perfectly criminal; at least they had a knowledge of what they were doing. I think I am borne out in that by the secrecy they have endeavoured to pursue in putting in a false owner.’” Then in answer to that observation Mr. Zulueta says, “I have answered all that before: I state again, that all the secrecy and mystery of the thing lies in supposing other things different from what appear. Then it is said, ‘In fact there can be no want of evidence to show that Messrs. Zulueta had for a length of time been agents to slave dealers.’ Mr. Blanco and Mr. Martinez may have been engaged, as I have stated, in slave operations; and I have stated that we conducted their general business here.”
Mr. Forster then asks: “Is not Pedro Blanco a partner in a commercial house at the Havannah, who are general merchants?—Yes, I have stated that before.”
“Captain Fitzroy.] Have you ever discounted any bill drawn by Pedro Blanco on Pedro Martinez & Co. for goods delivered for them on the African coast at the Gallinas?—I have accepted bills drawn by Pedro Blanco and others from the Gallinas upon our house, and paid them to the order of several houses in Sierra Leone and houses in London. I have paid them in money that I had in my hands resulting from the general transactions of business which I have explained. But discounting would be this, if I had paid those acceptances before they were due, and received some consideration for them; that I never did, but I might have done it in the case of these bills.” “Were those bills negotiated through your hands in payment of goods delivered at the Gallinas?—No; they were drawn generally with the advice attached to them, saying, I have drawn a thousand pounds upon you for account of Blanco and Carvalho, or Blanco & Co., at the Havannah.
“Mr. Wood.] By whose orders were you desired to honour it; was it by the order of Pedro Blanco at the Gallinas?—No; by the house at the Havannah, or by the house at Cadiz; sometimes the one and sometimes the other. Blanco had a house some time ago in Malaga, as a general merchant, occupied in shipping the fruits of the country and oil to the United States, &c. &c. In answer to [Question 7961*], the following is stated:—‘In one of these letters, dated Cadiz, 30th of November, 1840, is a paragraph to the following effect:—In a letter, dated London, the 21st instant, which I have just received from Messrs. Zulueta & Co., merchants in London, I had the pleasure of receiving a bill drawn by you on them for 250l., which I this day place to their credit, waiting your advice of the same.’ There is here certainly a mistranslation of some kind, because it says that this man receives a bill upon us, and credits it to us, which is, of course, contradictory in the very terms of it; because, if the bill was remitted to this man upon us, he would have debited it to us, and not credited it.”—I believe it is perfectly consistent when the letter is produced.—“But altogether there is some confusion about it; I suppose arising from the mistranslation of the documents, because the fact is this, the bill is one of the bills I have already mentioned, drawn from the Gallinas upon ourselves, to the order of a third party. It is a bill drawn at the Gallinas upon ourselves, on account of the credit, and therefore it could never have been received by the person in Cadiz.” That would be explained by a former answer, in which he says, he had sometimes sent bills of lading on which he had accepted a bill drawn from him on the Gallinas, and sent it to the house at Cadiz. He would have just said, This is a bill drawn upon me from Gallinas; I have accepted the bill, and placed it to your credit.
[Question 10459] is: “Can you give the Committee any information upon this: ‘The other letters,’ nine of them, ‘were all on slave business: not a word of any innocent trade, but the whole directing how slaves were to be shipped on board various vessels.’ How do you account for this vessel carrying letters upon slave business?—I account for it in this way. First of all, it is impossible for us to answer here what letters will be put on board a vessel at Cadiz; but there is very seldom any communication between Cadiz and the Gallinas; whatever letters there were must have gone by such random occasions as arose. As to the fact that whoever wrote those letters is engaged in the slave trade, the letters will speak for themselves.”
“Chairman.] Those letters were not prepared in the expectation of the arrival of this vessel, because this vessel was not destined to that port, and was only driven there by stress of weather?—Most certainly. I will add one circumstance in proof of that. The vessel was supposed to have been lost, from the circumstance of a boat having been found upon the coast with the name of T. Jennings upon it, and it was supposed that it was a boat belonging to the vessel; it was, in fact, a boat from the vessel, but the vessel had not been lost; therefore the vessel was quite unexpected in Cadiz by every soul. It went there from stress of weather and nothing more. Then it is said in answer to [Question 7972*], ‘I think the papers are quite conclusive to the mind of any man that Zulueta was cognizant of what he was doing; but as far as it is an illegal transaction, it is not for me to judge; but the Judge of the Vice-Admiralty Court of Sierra Leone did think it illegal, and condemned the vessel; and moreover, the man who is put forward as captain and owner did not defend the vessel on her trial.’ Now, as to the statement of his being a false owner, I have already stated that he was not. But then, again, with regard to the other part of the business, the man did not defend it, because he was prevented from defending it.”
With respect to the first part of that answer—it is stated that she put into Cadiz from stress of weather—the evidence I shall lay before you is, that when she received injury from the weather (and there is no doubt there was a storm), she was within two days sail of Cork, and 18 or 19 days from Cadiz. The crew actually resisted; they did not mutiny, but they opposed going to Cadiz; and it was only on his making the arrangement that those persons should be discharged at Cadiz, that they consented to go on. My version, therefore, of the affair is, that she put into Cadiz, not from stress of weather, but from other reasons. Ultimately she got there, and there were certain letters put on board there when she was fortunate enough to get there, addressed to Martinez & Co., who were engaged in this transaction, who, according to appearance, were actually charterers of the vessel for Zulueta & Co., who gave directions where those goods that were on board were to go.
It appears that there was an objection to answer the question at the moment, on whom the bills were drawn, and it was deferred to the following day. On the next day he appeared again, when the Chairman says, “The Committee understand that you have some further observations to make upon the evidence which has been given with reference to your house?” The answer is, “With reference to the destination of the Augusta, from Liverpool to Gallinas, and the fact of its having put into Cadiz unforeseen, and unpremeditated altogether, in consequence of stress of weather, I omitted to mention a circumstance which will put the thing beyond doubt, and it is this: an insurance was made at Lloyd’s from Liverpool to the Gallinas, and it is well known that, of course, we should have forfeited the insurance by going to any other port, except from the peril of the sea; and the British consul at Cadiz is well aware of the circumstance, because he is Lloyd’s agent there; and therefore he had to interfere in the whole proceeding; without his sanction nothing could have been done. We have called upon the underwriters upon that account, and it has been paid, and which would not have been paid without its being proved. I stated yesterday that the transactions of my house with Pedro Martinez & Co. of the Havannah, with Blanco & Carvalho of the Havannah, and with Pedro Martinez of Cadiz, had amounted in the 20 years to 100,000l. I was afraid of over rating the amount, but on reference to the books of the house, I find that our transactions with them in 20 years have amounted to 400,000l., out of which the 22,000l. that was mentioned is the whole amount of goods that have been shipped by their orders for the coast of Africa.” No doubt, gentlemen, that is a very serious answer when you have this fact as coming within general knowledge: it was stated that beyond doubt they dealt in slaves, and that the whole amount of exports from Africa, as arising out of transactions to the amount of 400,000l. is stated to be 22,000l.; and that amount of goods from Africa would, no doubt, be in repayment for the same transactions. “Can you state how much of the 22,000l. has accrued within any given period; is it distributed equally over the whole 20 years, or has it grown up in the last four or five years?—In the last few years it has decreased, but otherwise it is spread over the whole number of years. In such a length of time it forms to our minds a mere speck. In the last six months our transactions with the house of Pedro Martinez of Cadiz amount to already 30,000l., and with Pedro Martinez of the Havannah, to nearly the same amount. With the house of Pedro Blanco & Co. of the Havannah, the amount has been 15,000l. for what has passed in the last six months, and with the houses generally at Cuba, throughout the island, it amounts to 100,000l. altogether, arising entirely from cargoes of sugar, and from tobacco, and remittance of bills from there in carrying on banking operations, upon which they draw again, which are negotiated in the Havannah and sent to houses in London to cash, and remittances of drafts on the Spanish treasury at the Havannah, and bills of lading of specie and bullion, and such things from Mexico. I state these things only to show the nature of our trade, and I have been particular, because as these are large amounts I wish to show what they arise from. Another fact escaped my attention yesterday, and it is this, that Don Pedro Martinez is owner of several large vessels of 300 tons and 400 tons, which are in the trade of sugar, tobacco, and such things, with us, in England and with Cadiz.” I believe the cargo on board the Augusta was worth about 5,000l.; I do not know whether this may be considered as part of this or not; you will judge whether they are to be attributed or not to Captain Jennings. Then he says, he has bought other vessels:—“There was the Star, Captain Jennings. That vessel was sent from here to the Gallinas, precisely the same as the Augusta has been sent. She delivered her cargo; she went from thence to Cape Coast, I believe, and from there to Madeira; she received a cargo of wheat; she came back to Spain, and she was sold at Liverpool to a third party, not Martinez, or any body connected with him; in fact, she was sold for very little. The object of that vessel was just the same as the Augusta, to maintain a legal trade with Gallinas; that is within my own knowledge.”
“Mr. Aldam.] What is the description of legal trade that was carried on?—Sending out goods to be sold at those places, and to go to other ports, not to carry any cargo from there to the Havannah.” “There has been a good deal of evidence, in which it has been stated that no legal trade is carried on with Gallinas?—I could not say what trade there is at the Gallinas of a legal nature; but I know that those vessels would have taken nothing, if there was nothing legal to take, from that place to the Havannah, or to any other place; I am aware that my answers upon this point must be deficient, because I am really very ignorant of the trade of the West Coast of Africa.” “Do you suppose that the vessels would be used to carry on a legal trade?—Most certainly I do; because persons find it worth while to send goods there constantly. The Committee will observe, that what the application of the goods is afterwards I cannot say, but I speak of the fact of the vessels having gone there with the intention of returning to the Havannah to bring a cargo of some description here, to pay a freight, and then to go again with the same kind of goods to Africa.”
“Chairman.] You have stated before, that you have cleared out for the Gallinas from Liverpool?—Yes.” “In carrying on operations of that kind, should you have ever thought it necessary to exercise any disguise as to what part of Africa you were clearing out for?—Not at all.” “You did not imagine, that in being the instrument of sending lawful goods to any part of Africa you were doing any thing which required concealment?—Nothing at all of the kind; and the proof of that is, that in the bills of entry in Liverpool any body could see our names as consignees of the vessel, and see entries made in our own names of every thing.”
Gentlemen, no doubt this is most important, and if this had been—it is for you to say whether it was—but if it had been a legal trade, would it not have appeared in the ship’s papers that this had been shipped by Messrs. Zulueta the charterers, and consigned to Mr. Martinez? In all this statement it is said, that it is beyond all question that this was not a transaction which ought to be concealed, for that their name would not have appeared in the cockets, the bill of lading, and every thing connected with it. Now, the fact is, that their name does not appear, for it only appears as shipped by Thomas Jennings. Now, Thomas Jennings is the captain; he makes a contract with Zulueta; he is not the person who ships the things; but in all the ship’s papers, and every thing connected with them, it all appears as shipped by Jennings, and their name is not introduced from beginning to end. “Is not there a document, officially published daily in London and at Liverpool, stating the daily entries at the Custom-house of all goods shipped, with the description of the goods, and the name of the port and of the shipper?—Yes, there is.” I am not aware of any such; but there is none with Mr. Zulueta’s name as the shipper on this vessel. “Is not this printed from time to time in the public papers?—It is in general circulation; there is hardly any merchant in Liverpool or in London who is not possessed of one. The Liverpool entries are reprinted in London, Liverpool being such an important place of business. The bill printed in London contains also Liverpool, Hull, and Bristol.” “So that every such transaction is perfectly notorious to every one?—Notorious to every one who chooses to read the public papers. There is another thing which escaped me till I came into the room this morning. As I have been in the business from my childhood, I know every thing that is going on an it. The Arrogante, after we sold her at the Havannah, was sent to Vera Cruz with a cargo of Spanish paper, spirits, raisins, &c., such as is sent for the South American trade, for the purpose of breaking the blockade of Vera Cruz, which she did break and went in. It was asked in [Question 7147], whether the Augusta was equipped for the slave trade the second time; the answer was, ‘She was not.’ I wish to state, that before any goods were put on board of her, it was our express wish and order that every thing in her that was fit for that trade should be taken down, and the vessel put in the same condition as any other merchant vessel; and we should not have loaded any thing in her if that had not been done.” Beyond all question: she could not have gone out of the port of Liverpool if that had not been done; if she had been fitted up as a slave trader, she would have been seized before she went out of the port of Liverpool. “It is stated in the evidence that the Augusta was consigned to three notorious slave dealers; now we had never in our lives heard of the name of any one of the parties to whom she was consigned.” That is a most extraordinary thing. You will see how that is, if the letters are put in. Here are persons shipping to the Gallinas for two years; there are five persons there who are slave dealers, and nothing else; the prisoner has consigned goods there for twenty years, and yet he has never known the names of three of them as slave dealers. There is a difficulty in that answer, because he does not remember their names before he sent goods to them. He is asked, “You mean that the first time you heard their names was when the order to ship those goods was given to you?—Yes, and the circumstance of three consignees is a regular thing with distant consignments, such as South America and Africa. There is such an uncertainty attending the residence of parties in those places, that we invariably put a second and a third consignee in addition, in case the first should not be in the way.” Then Mr. Forster says, “Some bills were referred to in your former evidence drawn by Mr. Pedro Blanco upon your house; have you any objection to put those bills before the Committee?—Not any. And I ought to state now, as I have been looking at the bills more closely, that they are not all drawn to the orders of Sierra Leone houses, but to the orders of other Spaniards, and those people endorsed them to the Sierra Leone houses. This does not alter the case materially, but for the sake of accuracy I mention it.” “You will put them in for the inspection of the Committee?—Certainly.—(The same were delivered in.)” Then it is said, “You only hesitated in giving the names yesterday from motives of delicacy, not from any motive of concealment?—Yes, I do not wish to withhold any thing; but I am indisposed to introduce any name. I have no wish to conceal any thing whatever. I have been consulting with my partners upon this subject, and I have a request to make to the Committee. Our position is one which is certainly an unpleasant one. I think that what I have stated will have proved to the satisfaction of the Committee that we have not in any way intended to elude the law.” Then there is a suggestion that it is not necessary I should state to you, that if there is any difficulty a new Act of Parliament should pass.
Gentlemen, I have read to you, I believe, every word of the statement of Mr. Zulueta which is material to the question. I wished to read it, because I wish that there should not be the slightest possible ground for stating that I conceal any thing which he had stated in his own favour. You are perfectly aware, that where you put in the statement of any person against him, you take it all; you examine into the truth of that which is said in his own favour, and the truth of that which makes against him; you examine the correctness or incorrectness of the whole from this. It will be for you to say, how far you are satisfied that he had the means of knowing, and did know, that Pedro Martinez was a slave trader, dealing in slaves at the Gallinas. If you gather from this that he knew it, then the next question you will have to decide will be,—Was this vessel going to the Gallinas for the purpose of supplying the dealers with goods, the materials for carrying on their business, and the materials for the use of the slaves while in that situation? for there is no doubt that that will be an offence within this Act of Parliament. You are to say, whether he did know it or not. The goods sent were partly iron pots used for boiling their rice while in barracoons. Then there are other goods fit for barter with reference to the exchange of slaves, that being, as far as any evidence can be laid before you, the only trade carried on at that place: you will say, whether they were intended to be used for that trade. The question is, Do you know of any other trade in the Gallinas but the slave trade? The prisoner did not know of any other trade; he did not pretend to know of any other. Gentlemen, undoubtedly you cannot look into the mind of any one; you must judge from the facts; and therefore one material question you will have to decide is, Was this trade carried on in the way in which a person would carry on a trade who knew it to be of such a nature—was it carried on bonâ fide, or with a most careful concealment of the name of Zulueta throughout the whole of this transaction? If you find there was concealment, you must undoubtedly, as far as you are able, ascertain whether there was a guilty knowledge. If a prisoner had been charged with receiving goods knowing them to be stolen, and it appeared that he had concealed them in the way in which an honest man would not, that is evidence; so if you are satisfied there was a course of concealment, and that the name of Jennings, the man who knew of the affair, was used to cover these goods, they being shipped in the name of Jennings; if you consider that in the fair ordinary course of trade that would be evidence of fraud, then you will consider whether that is not proof that they were sent for the purpose of slave trading. That is the question to which you must turn your attention. I will lay the evidence before you: I have opened a part of the evidence, it will be a question whether any more will be laid before you; if no more is laid before you, you must take the evidence which will be before you, and consider whether the goods being sent to these persons engaged in the slave trade, with the concealment, is not evidence of the intention of sending them. If the other evidence is laid before you, you will take the whole, under the direction of the learned Judge, into your consideration.
Gentlemen, there is one observation I ought to make before I close. My learned friend has thrown out the question, Who is the prosecutor in this case? It is quite immaterial, in point of law, who is the prosecutor; the question is, What is the evidence against the defendant? But you will not for a moment understand that the prosecutor wishes to conceal himself or his name. The name of the prosecutor is the attorney in the case, Sir George Stephen; he is the son of a gentleman whose name has been known as long as any attempt has existed in this country, as one deeply interested in the attempt to overthrow the slave trade, and cause its suppression; and he is the nephew of a man to whom undoubtedly I should say is due very great praise, it would be hardly too much to say the greatest praise, in removing the stain which rested upon this country—I mean Mr. Wilberforce. Sir George Stephen has no fear or apprehension upon the subject; he has felt it to be necessary and proper in his judgment, and the judgment of those with whom he is connected and with whom he has acted, that some person should stand forward to bear all the responsibility which rested upon any individual in bringing a case of this kind before you for your consideration. He has no objection to bear that responsibility; he has performed his duty in this respect. But that is quite immaterial to the question in this case, which is simply this,—Is the prisoner at the bar guilty or not guilty of that with which he is charged in this indictment? And I mention the name of Sir George Stephen, because he does not wish to shrink from the responsibility which rests upon him. You will attend only to the evidence, and upon the evidence you will give your verdict of guilty or not guilty. I am sure, if the prisoner is innocent, you will give that verdict with great satisfaction; but if he is guilty, you will not shrink from that important duty which rests upon you in giving a verdict—a verdict of the utmost importance to those human beings for whose protection you are now sitting. If he is innocent, no feeling of that description will influence you in giving a feather’s weight to the prosecution; on the other hand, if you feel that he is guilty, you will not shrink from saying so by your verdict.
EVIDENCE FOR THE PROSECUTION.
Captain Henry Worsley Hill, R.N. sworn. Examined by Mr. Serjeant Talfourd.
Q. You were formerly the commander of a ship called the Saracen?—A. Yes, I commanded her on the coast of Africa.
From what time to what time? Did you command the Saracen on the 1st of October, 1837?—I commanded her from October, 1837, to June, 1841.
What was the general nature of the service you were engaged upon?—The protection of British commerce, and the prevention of the slave trade.
Mr. Justice Maule. What was the Saracen?—She was a man-of-war, a brig.
A king’s ship?—Yes.
Mr. Serjeant Talfourd. Did you become acquainted in the course of that service with the river Gallinas?—Yes.
How far is the river Gallinas from Sierra Leone?—For large vessels navigating it is necessary to go round a large tract of shoals, which makes it 150 or 200 miles; but there is a nearer navigation for smaller ships and boats. It depends so much upon the draught of water of the vessel you are navigating.
Is there any town on the river Gallinas?—On the river Gallinas there are several small towns.
What is the nature of the population there?—The population of the Gallinas consists of the inhabitants, negroes, they are all blacks; and the European population are chiefly Spaniards.
Mr. Kelly. The European population is principally Spaniards?—Yes, chiefly so.
Mr. Serjeant Talfourd. At the time you first became acquainted with the river Gallinas, were there any barracoons there?—Yes.
How many barracoons were there?—
Mr. Justice Maule. When was this he is now speaking of?
Mr. Serjeant Talfourd. When was it?—The river Gallinas was part of my station in December, 1838; in fact, it was upon my station from December, 1838, till May, 1841; and I was constantly at Gallinas during that period.
Mr. Justice Maule. When were you first at Gallinas?—I called there before that in 1837, but I did not land there.
Did you see if there were any barracoons there then?—I did not land there. I know there were barracoons from hearsay; and I know the slave trade was extensively carried on.
Mr. Kelly. Do not tell us any thing you know from hearsay.
Mr. Serjeant Talfourd. You did afterwards land there, and became acquainted with the establishments there?—
Mr. Justice Maule. Is it merely to ascertain the fact of the existence of barracoons there?
Mr. Serjeant Talfourd. No; they are destroyed now. They were destroyed by Captain Denman?—It was in consequence of arrangements made by Captain Denman. I was there when they were destroyed. I was there, and saw the whole slave establishments; there were six or seven of them.
When you first knew the Gallinas, were there slave establishments there?—I was merely cruizing off there to prevent the slave trade. The slave vessels took their cargoes from there, as I have every reason to believe.
Mr. Kelly. Have the kindness to confine yourself to what you know.
Mr. Justice Maule. You have been ashore there?—Yes.
What did you see there?—The first time I was on shore there and saw the barracoons was in November, 1840—
Mr. Kelly. There is no doubt of the fact of barracoons being there, and that they were destroyed.
—I was cruizing off there for two years for the purpose of preventing the slave trade; but I did not land to see them till 1840, and that was in November.
Mr. Serjeant Talfourd. At that time how many slave establishments were there at the Gallinas?—
Mr. Kelly. Do you know it of your own knowledge? Let Captain Hill distinguish between what he saw and knows to be the fact, and what he has heard.
Mr. Justice Maule. Barracoons seem now to be changed into slave establishments. Do you make any point of that?
Mr. Kelly. No, my Lord, I do not; it means the same thing.
Mr. Justice Maule. Are these barracoons for the slaves?
Mr. Serjeant Talfourd. Are the barracoons used for the purpose of warehousing the slaves?—They are for confining the slaves before they are exported.
Is this a plan made by yourself? (handing a paper to the Witness.)—Yes, it is made from my recollection of the river; it has never been surveyed. I made it from my recollection of the spot.
Does it give a representation of the river Gallinas and the barracoons upon it?—Yes it does, to the best of my ability. Those places which are marked black are where the barracoons were, which were destroyed in consequence of Captain Denman and myself going into them and giving directions for that purpose.
It represents them as they were before they were destroyed?—Yes.
Just mention them one after the other, and whose they were.
Mr. Kelly. I do not know how my learned friend intends to show that this is evidence.
Mr. Serjeant Talfourd. That will be for your cross-examination.
Mr. Kelly. I do not wish to charge my Lord’s notes with a quantity of matter that is not evidence. How can this gentleman tell these were the properties of particular parties? How can he say, upon his oath, that these are the properties of particular parties?
Mr. Serjeant Talfourd. Do you know who the parties were who were the owners of these barracoons?—The first place we landed at was Angeline’s, called Dombocoro; to the best of my belief it was his. I may go into a house and not know who is the owner; but that it was Angeline’s I understood from himself.
Mr. Kelly. This I must object to. If my learned friend thinks it necessary to address any question to Captain Hill as to facts that took place, from which your Lordship or the Jury may infer that any particular individual was the owner of any particular place or places, I cannot object to it; but when it is sought to be given in evidence against Mr. Zulueta, who was never at the place in his life, and never saw any of the parties, and something is to be built upon the reputation that existed as to the property of these individuals, I submit to your Lordships that direct evidence should be given of the fact; and I must object to the question, what was generally understood as to the ownership of these barracoons. Any thing he saw, from which an inference may fairly be drawn, I cannot object to; but I do object to any thing he prefaces, by saying, “I understood so and so.”
Mr. Serjeant Talfourd. The mode of ascertaining who is the owner of any establishment, is by going there and seeing who is taken to be the owner.
Mr. Justice Wightman. I understood that Captain Hill had gone in there and seen some person there?—No; I learned at Dombocoro.
Mr. Kelly. That is not evidence.
Mr. Justice Maule. If you wish to show that A. B. is the owner of any house, you must show it by specific evidence; but there is no point here as to parties being the owners. One is called Señor Antonio’s, and another by another name. I do not see why any dispute should be made about it. If you wish to charge the prisoner with the specific fact of a particular party being the owner of a building or piece of ground, it must be proved by legitimate evidence.
Mr. Kelly. I wish to deal fairly by my learned friend, and to save time, which is the object of us all. My learned friend, in his opening speech, stated that certain parties were notorious slave dealers: now what may be notorious to any gentleman who hears all the tittle-tattle that may be spoken at the place is one thing, but what was known to the prisoner is another thing. The notoriety there is not evidence against the prisoner. The question will arise, if the fact is proved, whether it was known to Mr. Zulueta in this country? Let us have the fact there, and not what was known there?
Mr. Serjeant Talfourd. How many barracoons were there at this time?—I had better explain that the barracoons are extensive buildings of themselves; and the buildings, necessary for the parties to live in to attend upon the slaves, are numerous. At Dombocoro there may be fifty or sixty houses, storehouses, and places for the people to live in who look after the slaves. Tiendo covers a very large space of ground.
Mr. Justice Maule. I may take it that each barracoon is a slave building, and that there are storehouses for stores?—Yes; the barracoons themselves are like large barns to keep the slaves in, and they contain five or six hundred slaves sometimes.
Mr. Serjeant Talfourd. Are there any other buildings but the barracoons and the houses for the attendants?—At Dombocoro there are none other. At Tiendo there is a town just adjoining it: the slave establishment is towards the point. At Jaiera I saw nothing but the slave establishments. At Carmatiendo there is a large slave establishment, and the reputed owner is—
Mr. Kelly. Never mind the reputed owner.
Mr. Justice Maule. Any body might prove that an island was called Juan Fernandez without proving that he was seized of it in fee.
Mr. Serjeant Talfourd. Is there any thing but a slave establishment there?—No, I saw nothing else: and the same at Camasuro; and I saw the same at Paisley: and at one or two of the islands there were some small slave establishments likewise.
Do you know of any other trade or commerce which is carried on there but the slave trade?—None other; and I think I was in the whole of the slave establishments I have mentioned. I went over the whole of them before they were destroyed, and saw no signs of any trade but the slave trade.
Having been cruizing off there for some years, should you have known it if there had been any other commerce carried on but the slave trade?—
Mr. Kelly. I object to that question, it is asking the witness to come to a conclusion, from being on the coast of Africa, that he had become acquainted with the whole of the commerce. I am quite sure that the last answer of the witness cannot be correct.
Mr. Serjeant Talfourd. I submit to your Lordships that my learned friend cannot be correct in stating that the witness is not correct.
Mr. Kelly. I will prove it.
Mr. Justice Maule. I have taken down the substance of what he has been saying, and it is this: He mentions five or six places where there are barracoons with the appurtenances; and “except at one or two, where native towns are near, I saw no sign of any other trade but the slave trade.” You were cruizing off there to watch the trade?—Yes.
Did you know of any trade but the slave trade?—No, the native king told me there was no other.
Mr. Clarkson. Never mind what the native king told you.
Mr. Justice Maule. We cannot even take the word of a king, so extreme is our repugnance to hearsay evidence.
Mr. Serjeant Talfourd. Do you know a merchant there of the name of Ignatio Rolo?—He was on board the Saracen for some two or three days. Captain Denman had taken a slave vessel—
Do you know of your own knowledge what his occupation was there?—I never saw him buy a slave, nor did I see him sell one; but as far as knowing the course of trade, I should say he was a slave dealer, and solely and only a slave dealer; but I never saw him buy one. Jaiera was his slave establishment, and there was no sign of any thing but the slave trade.
And there he resided himself?—I never saw him there. I understood from him that he did: in the first instance he denied it.
Mr. Kelly. Do not tell us what he denied. I must once for all take his Lordship’s opinion whether this course of evidence can be persisted in. I am extremely sorry to consume time, but it is essentially necessary for the interests of justice that the prisoner should be protected from answers of this kind. It seems that Captain Hill thinks it his duty, instead of answering the question put to him, to state any thing that occurs to his own mind.
Mr. Justice Maule. I cannot say that he seems to give answers quite connected with the subject; but he is not so well acquainted with what we exclude in evidence as you are.
Mr. Kelly. I only wish once for all, if he would be good enough to understand, that he is not to repeat what he heard; what he saw no one can object to; what conversations he had with other people can form no ground of charge against a party not upon the spot. —I was speaking of a conversation I had with Ignatio Rolo himself, he acknowledged to me he lived there.
Mr. Justice Maule. We cannot admit that.
Mr. Kelly. I am not blaming Captain Hill, but I am only reminding him of his duty as a witness not to repeat whatever he heard.
Mr. Justice Maule. He has not stated whatever he learnt from any party: if you push that to the extreme point, how is a witness to be allowed to say that he was examined in Court by Mr. Kelly?
Mr. Kelly. I do not push it to that extent.
Mr. Justice Maule. Did you see Ignatio Rolo in any occupation—No; the way I saw him was this, Captain Denman had seized a slave vessel, and he had sent it up in charge of a prize officer and crew.
Mr. Kelly. If I cannot induce Captain Hill to confine himself merely to answering the questions, I must object. It is singular that when your Lordship puts a question, and Captain Hill has answered it, he goes on to enter into a story about Captain Denman and a slave vessel. I object to that; we cannot go into evidence of what Captain Denman had done about a slave vessel; all he knows is mere rumour.
Mr. Serjeant Talfourd. When was it you first saw Ignatio Rolo?—I myself landed there in the month of November, a day or two previous to our going into the river Gallinas, in order to make some arrangements with the chiefs, owing to the interruption that had been offered to us.
Was there any establishment there called by his name?—None; but Jaiera was the name of the establishment.
Did you ever see him there?—No.
Mr. Justice Maule. You saw him somewhere?—Yes, he came on board a slave vessel, and was there detained by the prize officer.
What is Ignatio Rolo?—To the best of my belief he is a Spaniard; an European, to the best of my knowledge. I never saw him in Spain.
Mr. Serjeant Talfourd. Do you know a person named Don José Alvarez there?—I was not personally acquainted with him; I only knew him by name.
Did you know a merchant named Don Ximenes?—I saw him at Sierra Leone; and I learnt from him—
Mr. Justice Maule. Are you going to prove that the river Gallinas was a slave trading place?
Mr. Serjeant Talfourd. Yes, my Lord.
Mr. Justice Maule. There is enough evidence of that.
Foreman of the Jury. We are quite satisfied of that.
Mr. Kelly. There is no doubt that where there are barracoons, there is slave dealing; but whether these individuals were slave dealers I do not know. Let that be proved in evidence.
Mr. Serjeant Talfourd. Did you fall in at any time with a vessel called the Golupchik?—Yes.
When was that?—I fell in with her several times, and chased her; and ultimately captured her in April 1839.
Under what colours was the Golupchik then sailing?—Russian.
Who was it had the command of her?—It was Thomas Bernardos.
Of what nation was the crew composed?—They were Spaniards principally; there might be a few Portuguese.
Was there any thing in the fitting up of that vessel, which enabled you to judge in what trade she was engaged?—She was fitted up for the slave trade.
Have you any doubt of it?—No.
What was the nature of the fittings up?—I have the report of the Mixed Commission Court, which would be the best evidence.
Mr. Kelly. No, it would not.
Mr. Serjeant Talfourd. What were the fittings up, which to your eyes indicated her as a slave vessel?—She had more water-casks than are necessary for an ordinary trading vessel.
What is the size of them?—They are large vessels; they are called leagers.
They are called leagers?—Yes; but any vessel may have a leager; but she had a larger quantity than any ordinary merchant vessel, and that is one of the articles prohibited to be used by our treaties with foreign powers.
What else did you observe?—She had a sliding caboose to hold a very large copper; that is another of the prohibited articles. She had also gratings covered over with temporary planks; and a few other trifling things, quite sufficient, according to our treaties with foreign powers, to authorise me to seize her as a vessel fully equipped for the slave trade, had she been under the Spanish flag. I seized her, believing her to be a Spanish vessel, though under the Russian flag.
The crew were principally Spaniards?—Yes; and it did not appear that she had been in a Russian port for two years.
What did you do with the vessel?—I sent her to Sierra Leone, and tried to prosecute her in the Mixed Commission Court as a Spanish vessel; but she was not received into that Court, being under the Russian flag, and with Russian papers. I afterwards determined to send her to England, that the Court of Admiralty might dispose of her, as I felt satisfied she could not be a Russian vessel.
Mr. Justice Maule. You sent her to England to be condemned?—Yes, and before that I obtained from Bernardos—
Mr. Kelly. You are not asked what you obtained from Bernardos.
Mr. Serjeant Talfourd. Did Bernardos go in her?—Yes. I tried her a second time in the Mixed Commission Court.
We cannot enter into that. Did you afterwards see the same vessel again under another name?—Yes.
When was that?—In February 1841.
Where was she at the time?—Close to the Gallinas; at anchor at Gallinas: she anchored as I went on board.
Mr. Justice Maule. Under what name?—The Augusta; and under the English flag.
Mr. Serjeant Talfourd. Are you quite certain it was the same vessel you had captured before?—Yes, quite certain.
Who did you find in command of the vessel at that time?—A man of the name of Jennings.
In consequence of any suspicions you entertained, did you make application to him for the ship’s papers?—I asked for the ship’s papers directly I went on board—
Mr. Kelly. I must object to any thing that passed between the witness and Captain Jennings; the fact I do not object to.
Mr. Justice Maule. You do not object to the fact of his asking for and getting the papers?
Mr. Kelly. No; but it must be the fact alone. I never interpose when the Captain states facts.
Mr. Justice Maule. Did you ask for the ship’s papers?—
Mr. Kelly. To that I have no objection, and I do not object to the question of my learned friend; but it is the only way I have of warning Captain Hill not to give us other people’s statements.
Mr. Serjeant Talfourd. Did you obtain the papers in the first instance?—Yes; on going on board it is my duty to demand them, and I received them on board.
Were there any other papers subsequently given to you by Jennings, or did you receive them all at once?—I received other papers afterwards; I received the ship’s papers in the first instance.
Mr. Kelly. Confine your answer to the question.
—It is necessary to explain.
Mr. Kelly. No, not at all.
Mr. Serjeant Talfourd. You received some papers in the first instance?—Yes; the vessel’s papers on demand. I had demanded them, and on being refused by Captain Jennings to answer a question which he was bound to answer to the commander of a British man-of-war, I insisted upon its being answered, and said I should detain the vessel till it was; and that question was to whom did the vessel—
Mr. Kelly. Here I must interpose; and unless Captain Hill is to be the sole judge of what is to be admissible evidence, I ask your Lordship to interpose, or to hear me and dispose of my objection. I cannot complain of my learned friend; he puts nothing but perfectly regular questions. Captain Jennings is not my client here.
Mr. Justice Maule. You gave back the ship’s papers to Captain Jennings, and afterwards you insisted upon having these papers, or having some more?—I insisted upon having the question answered to whom the vessel was consigned.
Mr. Serjeant Bompas. He has a right to ask that; that is a question which the captain is bound to demand of him, to whom he is consigned.
Mr. Kelly. I am quite well aware that in your Lordship’s hands I am quite safe; and if Captain Jennings had committed a murder on this occasion, it would not upon your Lordship’s minds produce any influence; but it is impossible to tell, knowing that Jennings was the captain of the vessel, and that the prisoner at the bar may have had some hand in the fitting it up, what influence it may have upon the minds of the Jury if we are to have conversations or recognitions, supposing there to have been any made by Captain Jennings; and all this done in the absence of Mr. Zulueta, who had no knowledge of it or control over it. If I at all understand it to be your Lordship’s impression, that any thing said or done by Captain Jennings is evidence, having made the objection I have nothing further to submit to your Lordships; but I do conceive, that nothing done by Captain Jennings long after the vessel sailed, and long after the offence, if any, was committed, is admissible. I do feel it my duty to ask, whether evidence is to be received of what was said and done by Captain Jennings months after the departure of the vessel from this country?
Mr. Justice Maule. I do not entertain either of those two opinions. You do not put two cases which exhaust all other possible cases, but you say if I am of opinion that every thing said and done by Captain Jennings is evidence, you say no more; you say nothing. But I do not think that the thing is evidence, because Captain Jennings says it; nor do I think we can say, that nothing that Captain Jennings said can be evidence in the course of the trial. But with respect to what we have to decide, it is not whether there is such a large and general rule as that, but whether this question falls within any rule that excludes it. I think it does; I think what Captain Jennings said on that occasion is not admissible in evidence. If Captain Hill demands some other papers from him, that fact may be given in evidence.
Mr. Serjeant Talfourd. Did you afterwards receive some other papers from Captain Jennings on board?—Yes, I received a packet.
Mr. Serjeant Talfourd. Is the clerk here from the Court of Admiralty?
Mr. Kelly. I take for granted that the papers to be produced in Court are the papers given to this gentleman by Captain Jennings.
Mr. Serjeant Bompas. Yes, they have been produced before; we shall want them in a moment.
Mr. Serjeant Talfourd. What steps did you take upon receiving these papers?—I took the papers on board my own vessel on purpose to read them. It was towards the close of the evening I received them, and I sent an order on board the Saracen that an officer and a certain number of men should be sent to me, and I entrusted that officer with the charge of the vessel.
Did you, in consequence of the view you took afterwards, detain the vessel?—Yes, I detained the vessel.
She was afterwards taken, I believe, to Sierra Leone?—Yes.
Did you prosecute her there?—
Mr. Kelly. I must object to all this—
Mr. Serjeant Talfourd. I thought that that might be taken as a fact; the evidence of Mr. Zulueta before the Committee is in evidence; and there it is stated that the vessel was condemned, because Captain Jennings had no funds to defend her: I thought I might take that as a fact.
Mr. Kelly. No, nothing of the kind; I object to any evidence of the proceedings in Sierra Leone respecting this vessel. Mr. Zulueta, as it appears by what is in evidence, namely, his own statement before the Committee of the House of Commons, was the agent of Messrs. Martinez & Co. for the purchase of this vessel, and afterwards the shipment of the goods, but was no party at all to any proceeding, judicial or otherwise, which took place in Sierra Leone. Now judicial proceedings, in which there is a judicial sentence, are no doubt evidence, and may be very important evidence against the parties to those proceedings; but I apprehend as that was a proceeding to which Mr. Zulueta was no party, they are not evidence against him here.
Mr. Serjeant Talfourd. We need not argue that; I only put the question in order to trace the vessel.
Mr. Justice Maule. At present he says the vessel was sent to Sierra Leone; that was all, I believe?
Mr. Kelly. No, he was going on to talk about the proceedings in Sierra Leone.
Mr. Serjeant Talfourd. There were some proceedings there?—She was condemned in the Vice-Admiralty Court there.
Was she sent to England afterwards?—I have seen nothing of her since.
Cross-examined by Mr. Kelly.
Though you were for some two or three years cruizing upon the coast of Africa, it was not till November 1840 you landed at Gallinas—I landed upon the island there for half an hour previous to that time.
With that exception, I believe you had not landed there before that?—No.
You have spoken of slave establishments; are there not villages or towns, whatever names are given to them up the river?—It is necessary to mention—
You will greatly oblige me if you will answer the question. Is it the fact, that there are several towns and villages up the river?—It is necessary for me to explain. If you know nothing of the river Gallinas that question may imply more than I can answer. The river Gallinas extends some distance into the interior as I believe: I have been up it ten or a dozen miles, and I know that there is the native village of Mera, another of Tardia, and another of Tinda.
That is exactly what I am asking.
Mr. Justice Maule. It is a very harmless statement.
Mr. Kelly. I was going to ask him how far he had gone up the river?—At least twelve miles.
As far as you have gone, there were towns?—There were villages.
Was the river navigable further up?—Do you mean further than I went?
Yes.—I cannot say; I should think not from the appearance of it, except by canoes.
It is navigable for canoes, so that the population of the place can pass further up?—I cannot say.
Did you ever see canoes higher up?—I could not see them.
If you were ten miles up, you can say if you saw canoes beyond that distance?—I did not see any. I think from the appearance of the river as high as I went, it is navigable for canoes; but I never saw any there.
You were upon this coast for the protection of British commerce and the prevention of the slave trade?—Yes.
Did not that British commerce consist among other things of the exportation of the merchandise of Britain to various places on the coast of Africa?—Certainly.
Do you not know that British merchandises, sometimes in British vessels, and at other times in other vessels, were exported to a very considerable extent to various parts of the coast of Africa?—Certainly, I do.
Now with respect to the Gallinas, do I understand you to say that no British merchandises were exported there, except for the purposes of the slave trade?—Any British merchandise exported there from the Gallinas?
No, I said imported into the Gallinas.—That question was not asked me.
Do you not know that British merchandise to a considerable extent was from time to time exported to the Gallinas in a lawful manner?—I have known English vessels arrive at the Gallinas and part with a little of their cargo; but I never knew an instance before the Augusta of a vessel arriving at the Gallinas consigned to deliver her cargo there.
I ask you, whether you have known of various British vessels, containing British merchandise, arriving there for a lawful purpose?—I have known one or two English vessels dispose of a part of their cargoes there; but I doubt its being for a legal purpose, because I am satisfied there is no export from the Gallinas but slaves, and therefore I do not think it could be lawful.
You say you have known them land part of their cargo there?—I have known them sell part of it.
And you gave as your reason for doubting whether it was for a lawful purpose, because you are not aware of any merchandise that is exported from there in return?—I said I should doubt whether it was lawful, because there was no produce in exchange for it.
Have you never known an instance of ivory and palm-oil being exported from Gallinas?—Never, and I believe it never was during the time I was there.
I am asking your experience; I will come to your belief presently. You say you doubt whether British merchandise has ever been landed there for lawful purposes; is that so?—I have given my reason for doubting it.
Is it so, that you doubt whether it was ever landed for any purpose?—I am speaking of the time I was there.
I am asking you about your own experience; of course that must be while you were there. You say you have never known any British produce landed that you did not doubt the legality of its purpose; is that so?—Yes; because there was no produce to be lawful given in exchange; no produce that I met with.
Allow me to ask you, was there any thing illegal in the landing of British produce for the use of the native chiefs, or the inhabitants of those towns and villages you speak of?—You are asking me my opinion?
Yes; you say you doubt the legality of it?—
Mr. Justice Maule. That is a question of law.
—That is a question I cannot presume to answer.
Mr. Kelly. As the gentleman has given me his doubts, I wished to know the reason for them.—I have seized this vessel, because I conceived her freight to be illegal.
Do you remember a vessel called the Gil Blas?—I have seen her.
Did she not land goods at the Gallinas?—Yes: if she is the vessel I mean, she was commanded by a man of the name of Serjeant, and he landed some goods there; he gave me to understand so.
Was the Gil Blas there at the time your vessel was there?—Yes.
And you did not think it necessary to seize the Gil Blas?—No.
Do you know for whom any goods were landed?—I am only speaking from what I understood from him when I learned it. I do not know to whom he delivered them; but he gave me to understand he sold them to Pedro Blanco; but I was not present. I am only speaking to my belief.
Did this man, about that time, make you any present?—Serjeant brought out from Pedro Blanco a dozen fowls and a sheep for me, which I was very glad of. I had never seen Pedro Blanco in my life. I had had no fresh provisions for some time, and I was very glad to accept the fowls and the sheep, which he told me had come from Marseilles in a vessel which had taken some slaves. The sheep I gave to the Judge of the Mixed Commission Court.
How long was the Gil Blas off there?—I do not know, perhaps a day.
Tell me the name of any other vessel that was out there landing goods, which you did not seize?—I do not remember any.
Were you there at the time the Star was there?—I do not remember the name. I do not recollect seeing her. I am sorry I have not the boarding-book here, or I could tell you.
Do you remember the Laburnum?—No.
The Milford?—No.
Do you not know that the Milford landed a large quantity of goods at the Gallinas?—Not to my knowledge.
Or the Sublime?—Not that I know of.
How long were you so near to the river Gallinas, or within it, as to be able to know from your own observation what quantity of goods, if any, was landed?—My cruizing ground was extensive. I was a good deal at the Gallinas, because it was a notorious slave place, but I had many other places to visit.
You are not answering my question. I ask you how long you were within the river, or within sight of it, so as to know what quantity of goods were landed?—It was part of my cruizing ground; sometimes I would be there for two or three days at anchor, then I would be away a month or two, and then back again for two or three months; sometimes I was continually there.
Can you give me any idea of the population upon these banks of the river with which you were acquainted? You say you went twelve miles up; what was the extent of the whole population?—I can only answer from guess. I should say, at Tiendo, the population might be eight or nine hundred; at Tardia, one or two hundred; at Mena, seven or eight hundred. There is another native town, which I do not know the name of, further down the river; but it is not thickly populated by any means.
You say you were stationed upon the coast of Africa for the protection of British commerce: as far as your experience goes, was not that British commerce to the coast of Africa exceedingly serviceable to the natives?—That depends upon what way it is employed. If it is to be employed in the slave trade, it is doubtful whether it is serviceable.
I am not asking you a speculative question of that description: you were there for the protection of British commerce, and it is a plain question. I ask you, in your judgment, founded upon your experience, was British commerce serviceable to the natives upon the coast of Africa?—Are you taking the whole of the coast of Africa, or confining it to the Gallinas?
I am confining it to the parts you are acquainted with?—That was all the coast of Africa, from Portendique round to Madagascar; if you are taking in all that, undoubtedly British commerce must be a great benefit to Africa.
Let me ask you another question, and that I may not take you by surprise, I may tell you that I am taking it from the book in which you gave your evidence; I ask you, from your experience upon the coast of Africa, whether, in many places, a lawful trade was not carried on to a considerable extent by some persons, who likewise carried on the slave trade?—By the same persons, or in the same places?
I say the same persons?—I have not seen the persons trading, and I cannot tell.
Though you have not seen them trading, you may be able to answer the question?—I do not hesitate in telling you, that in many places on the coast of Africa, the same trade was carried on both for slaves and in exchange for the produce of the country, but at the Gallinas I do not think there was any trade of that kind.
In many places, the same trade was carried on in the lawful trade and the slave trade by the same persons?—Yes; lam speaking of hearsay; but I am as confident it was not so at the Gallinas, as one can be confident from having been at the place.
The experience which leads you to think it has not been so at Gallinas is from your own knowledge, being on the spot?—I have already stated I have been a great deal there, and during that time I saw no other trade, nor the sign of any other trade, than the slave trade.
We are here dealing with a gentleman who was never at the Gallinas, and I am asking you a question founded upon your experience: you say you believe no lawful trade was carried on there, as there was at other places; I ask you, whether the knowledge you have acquired, which leads you to suppose that European trade was carried on, was derived from your own knowledge of the persons?—Yes.
Allow me to ask you, are the officers of the navy in your own distinguished situation entitled to share in the value of the vessels which they seize, and which happily for them are condemned?—Yes they are; certainly.
To what extent: suppose you were to seize a vessel and cargo of the value of 10,000l., what would be your own share?—I should imagine the vessel in question—
I want to know, if you seize a ship and cargo of the value of 10,000l., 5000l. each, what is the share, if that vessel is condemned for being engaged in the slave trade, that the commanding officer seizing it is entitled to?—You must tell me the port she is to be condemned in; it makes a considerable difference; if it is in the Mixed Commission Court, that makes a very considerable difference, or if it is in the Vice-Admiralty Court.
Take it as being condemned in the Vice-Admiralty Court?—Half the proceeds go to the Crown, and the other half to the captors, after all the expenses are paid.
You say half goes to the Crown, if condemned in the Vice-Admiralty Court?—This vessel—
I am not asking you about any particular vessel.—It depends upon the different Acts under which she is condemned.
Forget for a moment this vessel the Augusta, if you can, and suppose a vessel under British colours is seized in the African seas by an officer in your own situation, and is condemned in the English Vice-Admiralty Court for a breach of the English law, how is the value divided?—Half goes to the Crown, and the other half, after the expenses are paid, is divided amongst the captors; the admiral gets one-sixteenth, and the captain one-eighth of the remainder.
Suppose she is condemned by the Mixed Commission Court?—I believe it is nearly the same in the Mixed Commission Court; but half goes to the nation under whose flag she is sailing.
The Mixed Commission Court is a court composed of commissioners of two nations, or various nations, and who have to determine the cases of foreign vessels not British, Spanish for instance?—Yes; I think that is the division after the nation under whose flag she is sailing; but under the Act that was passed authorising us to seize Portuguese vessels, and to prosecute them in the Vice-Admiralty Court, I do not know how the proceeds were divided.
It is a Mixed Commission Court which decides upon the Spanish or Portuguese ships; and the British Vice-Admiralty Court decide upon a vessel under the British flag?—Yes.
Are not Spanish vessels prohibited from being navigated by British captains? Did you ever see a vessel under the Spanish flag navigated by a British captain?—I never recollect seeing one.
Now, as to the vessel in question, the Augusta; you say when she bore the name of the Gollupchik, she was in every respect fitted up for the slave trade?—Not in every respect; I do not think she had a slave-deck laid.
I correct myself: she was in many respects fitted up for the slave trade?—Yes.
And that led you to seize her?—Yes.
When she came to England, and was claimed by the Russian authorities, do you know whether they succeeded in their claim?—I know nothing of her; I sent her to England.
You do not know whether she remained in English hands, or was delivered up to the Russian government?—I was on the coast of Africa at the time. I have received nothing from the Vice-Admiralty Court in respect of her.
To a certain extent, to the extent to which you have described her, she was, when you seized her under Russian colours, fitted up for a slave vessel?—Yes.
When she bore her name of the Augusta, and was in the hands of Captain Jennings, was she then fitted up for the slave trade?—Not in my opinion; and I did not seize her for that, but for her freight: at least I saw nothing; I do not know what might be under her cargo.
I did not ask you what you did not see; it is the very thing I have been objecting to a hundred times over: I ask you what you did see. You have said two or three times that you were three years upon this coast; to what extent of coast did your cruizing extend?—From December, 1838, until April or May, 1841. The Gallinas was within my station in the first instance. I had charge of the station under Admiral Palmer. Then there was another officer appointed.
I do not wish to go into the whole history of your service; but have the goodness to confine yourself to the question: over what extent of coast did the whole performance of your duties extend?—It depended upon the nature of the orders I received.
Was it altogether 1,000 miles of coast or 500 miles, from 1837, when you began, till 1841? Was the whole extent of coast, over which at various periods your service extended, 1,000 miles?—From October, 1837, till December, 1838, I was on the coast at different periods from Sierra Leone as far as Madagascar: but from December, 1838, until I left the coast of Africa in June, 1841, I was confined to the coast between Cape Palmas, Portendique, and the Cape de Verd Islands: from December, 1838, till June, 1841—
What extent of coast is that?—
Mr. Justice Maule. How many degrees of latitude is it?
—It is about 1,000 miles I should say.
Mr. Kelly. During that period you acquired some experience, I presume, in the nature of the British commerce carried on upon the coast of Africa: let me ask you, whether the sort of articles of British commerce, exported to Africa during that period, were not gunpowder, muskets, tobacco, brandy, and cotton goods?—Oh, yes.
And iron articles?—I do not think it is possible to distinguish the articles intended for the slave trade, from the articles intended for legal commerce.
Mr. Justice Maule. The articles sent in both instances are welcome to the African consumers?—Yes; I am speaking of the West Coast of Africa; I cannot speak to other parts of the coast; I do not think it is possible to distinguish them.
What people want in Africa is determined by that which they receive, and whether they pay for it in coin or in produce only, the same thing would be welcome?—Yes.
Mr. Justice Maule. Just as if you were to ask, why do people give bank notes in England for guineas or sovereigns: it is just what they want.
Mr. Kelly. With regard to these articles you have mentioned, when exported to various parts of Africa, is the return made sometimes in doubloons or money, and sometimes in ivory, dye-wood, palm oil, and other commodities produced there?—If you will let me answer the question in my own way, I can do it more satisfactorily. Where goods are landed, and doubloons are obtained in exchange, the doubloons come from the Spaniards, and I never knew a Spaniard engaged in any trade upon the coast of Africa but the slave trade: when you get produce in exchange, it is more likely you get that from the natives.
Do you mean to say, that the Spaniards who trade upon the coast of Africa do not give produce for the merchandise that goes there; I am not speaking merely of the Gallinas?—I think I know of but one, and I do not know whether he is a Spaniard or not. I can mention his name, it is Carrote; I think he exported palm oil as well as slaves; but he told me he was an agent to Pedro Blanco.
Do not tell us what he told you: what I ask you is, whether a return is not sometimes made in ivory and palm oil, and dye-woods?—The question calls for an answer which I cannot give in a satisfactory manner.
You do not do justice to your own understanding.—I wish to give you every information.
You never saw any of the house of Zulueta & Co. in the course of your travels on the coast of Africa?—Never to the best of my recollection.
Do you know any of them?—No: I saw Mr. Zulueta before the Committee of the Privy Council for the first time.
Re-examined by Mr. Serjeant Talfourd.
You have been asked if you saw any slave fittings when you seized the Augusta; did you take up any of the cargo?—No, I did not; I went into the hold.
Do you know whether the slave fittings were what could be taken to pieces and stowed away?—The hatches were grated when I first seized her. When I seized her the second time she had new hatches and no gratings at all. I saw nothing to induce me to believe she had slave fittings when I seized her as the Augusta, though I had heard that.
Mr. Justice Maule. The learned Serjeant is asking you not what you heard, but what you looked for; you searched to see if there were slave fittings?—Yes; so far as going down into the hold. I did not disturb the cargo; I do not know what was in her.
You did not find any leagers?—No.
Are you able to say whether she was or was not fitted for the slave trade?—If she was equipped for it I should have seized her at once; but she was not.
You saw enough of her to see that she was not equipped for the slave trade?—Certainly; she had not slave equipments, leagers, hatches with open gratings, or irons, or coppers, or any of those things.
Mr. Serjeant Talfourd. How long were you on board the vessel?—The first day a couple of hours, and the next day about the same time. I was on board her three or four times.
Can they get the equipments after they come into port when they discharge their cargo?—Yes, in many places they can; I can give you an instance of an American vessel—
Can the fittings be obtained there after the discharge of a vessel like the Augusta?—
Mr. Kelly. Where?
Mr. Serjeant Talfourd. At the place where the cargo is discharged.—The only way in which I can answer that question is this; if an agent at Gallinas expects a slave vessel to come out without equipments, he may take care to procure them from other vessels, and may have them perfectly ready: I can give an instance of that—
Mr. Kelly. Never mind that.
Mr. Serjeant Talfourd. How long would it take to put on board slave equipments in a vessel of the size of the Augusta?—A very short time: they may send out the water-casks filled with water in two or three canoes; and if they do not choose to lay down a slave deck, they put mats upon the casks, and it is done in a very short time. They may embark 500 slaves in a couple of hours or upwards and be off.
Foreman of the Jury. One of my brother jurors wishes to ask this question of the witness through your Lordship: when he went on board the Augusta, whether he found any thing on board her to warrant her being supposed to be fitted out as a slave vessel?
Mr. Justice Maule. He says he did not; that has been pursued for some time; and now in answer to questions put to him, the gentleman was saying, though she was not fitted out in that way, that her goods might be landed, and slaves might be put on board, in a few hours.—I can say—
Mr. Kelly. I object to these speeches: I object to this gentleman, who thinks because he has seized this vessel that if any thing falls from the Jury, or from one of her Majesty’s judges, that he may begin making a speech. There has been a great deal said that is not evidence: that every body must feel; but it is impossible to stop him, although a gentleman as respectable as himself is under trial.
Mr. Serjeant Talfourd. You have been asked about the share which the captain has in the capture of a vessel of this description; do you accurately know what share you would have under the circumstances?—Yes; what I have stated is the share: half the proceeds go to the Crown, and after the admiral has had his share, the remaining half is divided.
What would be your share of this vessel the Augusta?—I believe the proceeds amounted to about 3,800l.; one-half goes to the Crown, and there are the expenses of the appeal to the Judicial Committee of the Privy Council, which are not paid.
Have you got any thing?—No, not a sixpence.
Do the expenses swallow up?—
Mr. Justice Maule. 1,900l. is the half; the captain gets one-eighth of fifteen-sixteenths?—There are several hundred pounds to come out of it for the Privy Council appeal, that has not been paid yet.—
Mr. Clarkson. You must not say any thing, unless you are asked a question.
Mr. Kelly. I shall let him talk on till he is tired after what I have said.
Mr. John Brown sworn. Examined by Mr. Payne.
Do you come from the Admiralty Court?—Yes.
Do you produce any documents?—Yes, I do.
Mr. Serjeant Talfourd. The first document we want is the letter of the 20th August, 1840, from Zulueta & Co. to Captain Jennings?—Will you allow me to hand you a schedule of the different documents; they are numbered according to that. (The Witness handed in the same.)
Mr. Payne. Nos. 14 and 17 are what we want. (The Witness handed in two papers; one being a letter, dated 20th August, 1840.)
Mr. Serjeant Talfourd (to Captain Hill.) Look at this letter and see if it is one of the letters you found on board the Augusta? (handing the same to the Witness.)—Yes, that is one; there is my handwriting upon it.
(To Captain Hill.) Look at this also (handing another paper to him), the signature appears to be cut off, and say if it is in the same state as when you found it?—Yes, it is in the same state as when I found it on board the Augusta; the signature was then cut out.
Mr. Serjeant Talfourd (to Mr. Brown.) Now produce the charter-party, Nos. 11 and 12. (The Witness produced the same.)
(To Captain Hill.) Just look at these two papers (handing them to the Witness), and see if they are two of the papers which were found on board?—Yes, they are.
Mr. Kelly (to Captain Hill.) You have looked at these three or four papers, and you say they are the papers you found on board the vessel?—They are papers given to me by the master: I did not find them by searching.
Were they given to you on board the vessel?—Yes, by the master.
Did you put any mark upon them?—Yes, you will see a mark on the back; that is what I looked at in the first instance when they were handed to me.
Is this it? (pointing to a mark on the paper.)—It is a pretty large number upon the paper: that is my handwriting.
Mr. Abrao De Pinna sworn. Examined by Mr. Payne.
Will you look at this letter, and tell me if you know the handwriting of the postscript at the end? (handing a paper to the Witness.)
Mr. Kelly. What is the date of it?—24th of September, 1840.
Mr. Payne. Whose handwriting is that postscript?—I presume it to be Mr. Zulueta’s.
Do you believe it to be?—Yes.
Mr. Kelly. Which of them?—The father.
Mr. Payne. Do you believe it to be his writing?—Yes.
Mr. Justice Maule. You say the father; is that the prisoner?
Mr. Serjeant Bompas. No, the father of the prisoner.
Mr. Payne. Look at that (handing another paper to the Witness), and tell me if you know the handwriting; that is, the 20th of August?—It looks like the handwriting of Zulueta the son.
Mr. Justice Maule. What is the date?
Mr. Payne. The 20th of August, 1840. Just look at this memorandum on the charter-party; look at the signature to that charter-party: do you know the handwriting of that document?—I suppose that one to be the signature of Mr. Zulueta the son.
Do you believe it to be so?—Yes; the other I do not know.
(The Letters and the Charter-party were handed in.)
Mr. Payne. Do you know the handwriting of the body of that first letter of which I showed you the postscript?—I did not pay sufficient attention to it. With your leave I will look again. (It was again handed to the Witness.) I do not know it.
Cross-examined by Mr. Kelly.
I believe you are the notary to the Spanish consul in this city?—I am.
Have you known the house of Zulueta for any length of time?—For some years.
During that time has the prisoner Pedro de Zulueta, like the rest of his firm, maintained a high character for integrity and propriety of conduct?—The highest, the very highest character; and unimpeachable to the best of my knowledge.
To the best of your knowledge, from their character and the character of their dealings, do you believe them to be wilfully capable of violating the law?—
Mr. Serjeant Bompas. No, I object to that question.
Mr. Kelly. Has their character been that of violators of the law, or the reverse?—As far as my knowledge goes, I should say that it was perfectly impossible that the house of Zulueta & Co. should be violators of the law.
Have you ever had any transactions in business with that house?—Yes.
Do you know that they act as agents for various houses in Spain, the Havannah, and other places?—Yes.
Do you know that they have for a great many years carried on business to a great extent indeed?—Yes, I do.
Perhaps you may happen to know that vessels under the Spanish flag cannot be commanded by English captains?—
Mr. Payne. Do you know any thing about it?
Mr. Kelly. Do you know that?—My impression is, that that is the case.
How long have you been a notary?—I have been admitted about twenty years.
Are you a native of Spain?—A native of this country.
Where did you acquire your knowledge of the Spanish language?—In this country.
Have you had a good deal to do with the commercial and maritime affairs of Spain?—Yes, very largely; my connexion is almost exclusively Spanish.
In your experience, have you ever known a Spanish vessel, or a vessel under the Spanish flag, commanded by an English captain?—Never.
Re-examined by Mr. Serjeant Bompas.
Who are the partners in the firm of Zulueta, do you know?—The father Don Pedro Antonio Zulueta, and the son Don Pedro Gonzalez Zulueta. I do not know that I can go any further; I do not know that there is another partner.
Mr. Kelly. There is another son Moriarte?—I do not know that he is a partner; I believe he is.
Mr. Serjeant Bompas. Besides being a notary, do you carry on the business of a merchant at all?—No, not in the least.
How do you become possessed with your knowledge?—In my notarial capacity I have often had to prepare bills of sale of ships, and various documents connected with shipping, and that is the only way I obtain my information.
Mr. Serjeant Bompas. We will read these documents; the one signed by the prisoner at the bar first of all.
Mr. Kelly. Take them one at a time; they stand under very different circumstances. Let me look at it. (It was handed to Mr. Kelly.)
The same was then read, dated London, the 20th of August, 1840, signed “Zulueta &. Co.,” and directed “Captain Jennings,” Portsmouth.
“Sir,—In reply to your favour of yesterday, we have to say that we cannot exceed 500l. for the vessel in question, such as described in your letter, namely, that excepting the sails, the other differences are trifling from the inventory. If you cannot therefore succeed at those limits, we must give up the purchase, and you will please act accordingly.”
Mr. Serjeant Bompas. We propose now to read the one in which there is a postscript from the father.
Mr. Kelly. I feel that this letter is no evidence against the prisoner at the bar. It is a letter written in a handwriting not proved; the signature does not appear at all; but the postscript was in the handwriting of the prisoner’s father. I need hardly say that that is no evidence against the prisoner; but I have not the slightest objection to their reading it. I only add these few words, that because I consent to this being read, it is not to be taken that other documents, if there are any others under different circumstances, are admitted.
The following Letter was read:—
[“London, 26th September, 1840,” the signature cut off, addressed Captain Thomas Jennings, Portsmouth.
“Dear Sir,—We have received your letter of yesterday, whereby observe that the sum we have remitted you will not be sufficient to cover all the expenses to clear the ship. We much regret you have omitted mentioning the sum you require, which prevents our remitting you the same by this very post, thus causing a new delay in leaving that port, so contrary to our wishes; you will therefore write to us to-morrow, that we may receive your reply on Monday morning, informing us of the amount necessary to finish paying all your accounts and expenses, to remit you the same by Monday’s night post, in order that you maybe able to sail for Liverpool on Tuesday or Wednesday at the furthest. You must not omit stating the amount required; and waiting your reply, we remain, very truly, dear Sir, your obedient servants.”
Postscript. “According our Liverpool house notice, you will go there to the Salt-house Dock.”
Mr. Serjeant Bompas. Now put in the charter-party, and the paper referred to in it.
Mr. Kelly. Put in one at a time; you cannot read two documents at a time.
[The same was handed in, dated London, 19th October, 1840, signed Thomas Jennings; for Pedro Martinez & Co., of Havannah, Zulueta & Company.
Mr. Kelly. All these documents appear in the printed Appendix, which it would be convenient to hand up to your Lordship.
Mr. Justice Maule. Is that the joint Appendix on the appeal to the Privy Council?
Mr. Kelly. Yes.
Mr. Clarkson. The number of the document is 11, on page 5.
The same was read as follows:—
“It is this day mutually agreed between Mr. Thomas Jennings, master and owner of the good ship or vessel called the Augusta, of the burthen of tons, or thereabouts, now lying at the port of Liverpool, and Messrs. Pedro Martinez & Co., of Havannah, merchants: that the said ship being tight, staunch, and strong, and every way fitted for the voyage, shall with all convenient speed load from the factors of the said Messrs. Pedro Martinez & Co. a cargo of legal goods, which the said merchants bind themselves to ship, not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and furniture; and being so loaded, shall therewith proceed to Gallinas, on the coast of Africa, or so near thereunto as she may safely get and deliver the same; after which she may be sent on any legal voyages between the West Indies, England, Africa, or the United States, according to the directions of the charterers’ agents (restraint of princes and rulers, the act of God, the Queen’s enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever during the said voyage, always excepted.) The freight to be paid on unloading and right delivery of the cargo, at the rate of 100l. sterling per calendar month that the ship may be so employed, commencing with this present month; all port charges and pilotages being paid by the charterers; and days on demurrage, over and above the said laying days, at pounds per day. Penalty for non-performance of this agreement 500l. The necessary cash for ship’s disbursements to be furnished to the captain free of commission: the charterers to be at liberty of closing this engagement at the end of any voyage performed under it, on settling the freight due to the vessel; the captain being indebted to the charterers in certain sums, as per acknowledgment elsewhere, the freights earned by the vessel to be held as general lien for such sums, and in any settlement for such freights, the said advances to be deducted from the vessel’s earnings.”
Mr. Serjeant Bompas. The next document is the acknowledgment—
Mr. Kelly. I do not understand how this addition to the charter-party is evidence.
Mr. Justice Maule. It is at the top of page 6?
Mr. Kelly. It is a memorandum: you propose to read this?
Mr. Serjeant Bompas. Yes.
Mr. Kelly. I do not see the importance of it; but I do not see how it is evidence.
Mr. Justice Maule. Do you object to it?
Mr. Kelly. Yes, my Lord. I will not say any thing of the purpose for which it is offered in evidence, or the object of it. The charter-party is signed by the prisoner at the bar himself, on behalf of the house, as agents for the house of Martinez; but with regard to this document, which my learned friend calls a “memorandum of charter-party,” it is the sheet of paper in my hand, signed “Thomas Jennings,” and signed by nobody else: it is not shown to be in the handwriting of the prisoner, nor ever to have been in his hands, nor that he had any thing to do with it: it is a paper signed by Captain Jennings, and found by Captain Hill on board the vessel, or delivered to him by Captain Jennings on board the vessel. What evidence is that against the prisoner at the bar? I do not know what the paper is worth; but I do not know how your Lordships can admit it. It may be a document treasonable in its nature, or it may have been written the day before it was delivered to Captain Hill.
Mr. Justice Maule. There is some doubt about this: our opinion is, that in the present stage of the case this document is not admissible. There is certainly a reference in the charter-party to the captain being indebted to the charterers in a certain sum, acknowledged elsewhere, the freights being held as a lien against those debts. This charter-party is dated London, 19th of October; the paper proposed to be put in evidence is dated the 21st of October, so that it may not have been in existence at the time when the first paper was signed; it is therefore hardly to be referred to as a document mentioned in the charter-party. Whether something may arise to make the custody of Mr. Jennings evidence against Mr. Zulueta, is a question not now necessary to be decided: but the question is, whether in the present stage of the cause this is admissible. There is a reference certainly to an acknowledgment elsewhere. The proper and natural custody of that acknowledgment would be either the house of Zulueta & Co., or Pedro Martinez & Co.; it is an acknowledgment of a debt to them, and it is found in the custody of the debtor; it is proved by the signature of Zulueta & Co., and they or their principals are the parties who would have the custody of it; they may produce it if they wish to repel any inference which may arise from it, but at present we think it not admissible in evidence.
Mr. Serjeant Bompas. We call for that paper mentioned at the end of the memorandum; we have given you notice to produce it.
Mr. Kelly. If you mean to call for any paper, just put in your notice, so that we may see what document it is.
William George White sworn. Examined by Mr. Serjeant Bompas.
Just take that in your hand. (Handing a paper to the Witness.) Are you a clerk to Sir George Stephen?—I was employed by him.
Did you serve a copy of that notice upon any body, and upon whom?—Yes, I did serve a copy of it.
Upon whom?—Upon Messrs. Zulueta and Messrs. Lawford & Co., and Mr. Jennings, or left it at the office: I either served it on the parties, or left it at the office.
Cross-examined by Mr. Kelly.
There was a question put to you, which my learned friend did not give you time to answer; are you a clerk to Sir George Stephen?—No.
How came you to be employed in this matter?—I happened to be in his office, and he asked me to serve it.
What are you?—A clerk in a wine-merchant’s counting-house.
When did you serve this?—Will you allow me to look at it again? By all means. (It was again handed to the Witness.)—I served one copy on the 20th on Messrs. Zulueta & Co.
The 20th of this month?—Yes, and the 21st on Messrs. Lawford & Co., and on the 23rd upon Thomas Jennings: it was not signed or dated.
You have not answered the question; I wanted to know when you served that paper, of which that is a copy, either upon Mr. Zulueta, or Messrs. Lawfords, his solicitors?—On the 20th of October on Messrs. Zulueta & Co.: the copy was without any date or signature.
Who gave you it to serve?—I had it from Sir George Stephen.
Did he tell you why it was without any signature at all?—No.
He desired you to go and serve it?—Yes.
Now I perceive that that one has a signature; when did you serve upon either Messrs. Zulueta & Co., or Messrs. Lawford & Co., a notice with a signature?—Upon the 26th of October I served all three with a copy.
That was yesterday; what time was it?—I think that Mr. Jennings was about—
I am not asking you about Mr. Jennings; but upon my client, Pedro de Zulueta, or Messrs. Lawford, what time did you serve it upon them?—About five o’clock I served it.
Upon whom?—Not upon Mr. Zulueta himself.
Upon the solicitors?—No; not upon the solicitors themselves.
I am speaking of the one with a date and a signature; when did you serve either Mr. Zulueta or his solicitors?—The 26th.
Was that yesterday? Does your recollection enable you to say?—
Mr. Justice Maule. It was either yesterday, or yesterday twelve months, or two years ago?—It was the 26th of October, 1843.
Mr. Kelly. Will you tell me at what hour you served it?—Upon whom?
Upon either Messrs. Lawford & Co. or Messrs. Zulueta. First, did you serve it upon either? Leave out Captain Jennings. Did you serve a copy of that paper, signed and dated, upon either Mr. Zulueta or Messrs. Lawford?—No; I did not.
You only served it upon Captain Jennings?—Yes; that is all.
Mr. Justice Maule. As far as the signed paper goes, there was no service upon Mr. Zulueta?
Mr. Kelly. No.
Mr. Justice Maule. He did serve something upon them which was not signed.
Mr. Clarkson. Nor dated.
Mr. Justice Maule. Let us look at it; it may be a very good notice, though not signed. (It was handed to his Lordship).
Mr. Kelly. I am not going to raise any objection to it; but I shall make some observations upon it.
Mr. Serjeant Bompas. The name was in the instrument, though it was not signed by Sir George Stephen?—Yes.
Mr. Kelly. Was that so?—Yes.
When did you serve a copy besides that?—I served a second copy of it at the general office of Zulueta & Co., and you will find the words “General Office,” written upon it.
Mr. Kelly. Now just refer to your notice, to produce any document you propose to call for?
Mr. Serjeant Bompas. When you say you left it without date and signature, was it served in this way, the blank day of blank, with Sir George Stephen’s name upon the back of it?—Yes.
Mr. Justice Maule. The non-signature of a notice to produce is not worth inquiry; a dot to an i, or a cross to a t, would be equally available.
Mr. Kelly. It is my learned friend who renews the subject. I ask him to point out the document.
(The Notice to produce was read, specifying among other documents, the additional memorandum of Charter-party, &c.)
Mr. Kelly. I have no such document. I do not know of its existence.
Mr. Justice Maule. You call for the document referred to at the end of the memorandum of charter-party?
Mr. Serjeant Bompas. Yes.
Mr. Kelly. No, my Lord, they call for it by a particular description; it may be that document; but according to that description, as far as I know or am instructed, we have not got it. The document referred to in the terms of the charter-party is supposed to be an acknowledgment of the debt from Captain Jennings to Martinez and Co.; that might be in the possession of Messrs. Zulueta—
Mr. Justice Maule. It would be in the possession of Zulueta & Co., or Martinez & Co.?
Mr. Kelly. Yes, my Lord; if in the possession of Martinez, of course I have not got it.
Mr. Justice Maule. You call for the additional memorandum of charter-party of the 21st of October 1840?
Mr. Serjeant Bompas. Yes, or the 19th of October.
Mr. William Thomas sworn. Examined by Mr. Serjeant Bompas.
Are you a clerk in the bank of Messrs. Glyn, Mills, & Co.?—Yes.
Are they the bankers of the prisoner Mr. Zulueta?—Yes, they are.
Did you pay any sum of money of 650l. for him upon his account, in August 1840? (The Witness referred to a book).—On the 29th of August.
Was there a cheque?—A cheque or bill; I cannot say which.
Mr. Kelly. I presume that is kept by yourself, and in your handwriting?—Yes.
Mr. Serjeant Bompas. You return the cheques?—Yes, we do.
Mr. Serjeant Bompas. We have given them notice to produce any cheque of that date.
Mr. Kelly. Now, what is it you call for?
Mr. Serjeant Bompas. For that cheque for 650l.
Mr. Kelly. Does it purport to be a cheque signed by the defendant?—I cannot tell that, it might be a bill made payable upon our house on their account.
Mr. Kelly. I am quite prepared to produce any document in the handwriting of the prisoner at the bar, which is in his possession; but as to any document that may bear the signature, or be in the handwriting of any other member of the firm, that I shall not produce unless that member of the firm is made a witness to show the circumstances accompanying the document; unless it passed through the hands of the prisoner. If you prove any cheque in the handwriting of the prisoner, I will produce it if I have it, and if not, I shall not object to secondary evidence of it.
Mr. Serjeant Bompas. You say that that is in your writing, have you any book by which you can ascertain whether it was paid through a cheque or bill?—No, certainly not.
None whatever?—No; I could not tell whether it was a cheque or a bill. I cannot tell which; there is no book in our house that will tell us that.
On whose account was it paid?—
Mr. Kelly. I object to that: I do not want all the payments made by this witness; we are upon the question if you can give secondary evidence of the cheque.
Mr. Serjeant Bompas. I am going to see on whose account it was paid.
Mr. Kelly. I object to any evidence of bankers paying a sum of money on account of the firm, or on account of any other person, unless the document is in the handwriting of the prisoner at the bar, or the payment proved to have been made to his orders. What is to prevent, by the order of the partner in Spain, of which he never heard, this person being charged with felony?
Mr. Serjeant Bompas. I submit that the evidence is sufficient; here is an express statement in the printed evidence.
Mr. Justice Maule. It is not in evidence yet.
Mr. Kelly. I consider it in evidence; my learned friend may refer to any part of that book; I consider that that is in evidence now.
Mr. Justice Maule. Very well.
Mr. Serjeant Bompas. He first states he managed all the business. In answer to [Question 10432] he was speaking about the transactions with Africa, he was examined about the Augusta, and Mr. Kidd, he says, “My father knew there was such a man upon the coast, but I did not know even that, though I have managed all this business.”
Mr. Kelly. That relates to a business upon which another insinuation was made, and which has no more to do with it than this.
Mr. Serjeant Bompas. My learned friend assumes that this has no relation to it; he is quite mistaken in that. The question is, what is the meaning of the term, “this business,” it is not the business of the man of the name of Kidd; he says he never heard of him; but the question is, whether it is not the business of the Augusta and the trade with Africa; he says he manages all that business. I submit, if he takes upon himself to say he managed “all this business”—
Mr. Justice Maule. What are the words?
Mr. Serjeant Bompas. “All this business.”
Mr. Justice Maule. I think the fair inference is, that the Mr. Zulueta, who came before the Committee, was the person who knew best about the matter suggested against them relating to the Augusta, and he came to speak to the matter of the Augusta, either solely or among other things; if so, “this business” must mean that.
Mr. Kelly. No, not if your Lordship looks at the context; he comes forward voluntarily, understanding there were charges against his house, not because he knew more about it than any body else, for he knew the least about it, but because he spoke English best. There is nothing from which you can infer in this evidence that Pedro Zulueta knew all that had passed through the house.
Mr. Justice Maule. It is not very satisfactory to select a man who can speak English, but did not know much about the matter.
Mr. Kelly. I mention that in answer to your Lordship’s observation, “that he knew most about the matter.”
Mr. Justice Maule. The Committee must have taken that to be the fact.
Mr. Kelly. If your Lordship thinks it must fairly be supposed to refer to that matter, then the question is whether that makes it evidence; I will call your Lordship’s attention to what he says: The Chairman asks him, “Is there any other part of the evidence which has been given that you wish to observe upon?—It is asked here in [question 5086], ‘Who was he?’ The answer is, ‘The name is mentioned in the Parliamentary Papers as being connected with the purchase of a slave vessel, Mr. Kidd; and it is mentioned in connexion with that of Mr. Zulueta, of London.’” There was some former transaction of the purchase of a slave vessel, in which Mr. Kidd was a party. He goes on to say, “Now, as to Mr. Kidd, the very first thing I ever knew or ever heard of his name, was to see it here. I never heard of his name at all. I never had a letter from him or through him, or knew any thing of the man whatever. That is with regard to myself. With regard to my partners, I can say the same; I have been making inquiries about it. My father knew there was such a man upon the coast, but I did not know even that, though I have managed all this business.” What business can that relate to, but the business in which Mr. Kidd’s name was mentioned, which was the purchase of a slave vessel?
Mr. Justice Maule. I should think not: his father knew there was such a man upon the coast; “I did not know that, although I had that management of the business” which would lead me to know all the men on the coast, that is to say, all the coast business; that is the way I understand it, I confess.
Mr. Kelly. I cannot conceive that it is so; but it is for your Lordships to decide. Supposing that it is, I do not know how that makes this entry in the book evidence. Your Lordships will look at the next question: He is asked, “You have no connexion with Mr. Kidd in any way?—No; nor any knowledge of him.” Then he goes on with the same business; he was never alluding to the principal business, that of the Augusta.
Mr. Serjeant Talfourd. You will find he gives there an account of the whole transaction. Mr. Forster says, “You advanced the money to Captain Jennings for the purchase of a vessel; Jennings transferring the vessel to you as a security for the amount so advanced?—That is just the description of operation, which is a very general one in business.”
Mr. Serjeant Bompas (to Mr. Thomas.) Whose handwriting is that?—The handwriting of a Mr. Daniel, in our office.
Mr. Kelly. I submit that this relates to the business of Mr. Kidd.
Mr. Justice Maule. It struck me otherwise; but at the same time you seem so extremely satisfied with your own view, and my view is just as it struck me, that you stagger me by your positiveness.
Mr. Kelly. I should not like your Lordship or the Jury to be misled as to the amount of interference by this gentleman in the business. Suppose it is so, that he had the management of the fitting out of the Augusta, how does that make evidence of an entry in the banker’s book of the payment of a sum of money? He cannot say to whom he paid it, or on whose account? How can that make it evidence upon a charge of felony? I do not know the nature of it, but I am quite sure it is quite consistent with Pedro Zulueta, having done all he has admitted to have done before the Committee, that he never heard of that payment.
Mr. Justice Maule. In whose handwriting is the signature to the charter-party?
Mr. Kelly. It is the signature of the prisoner that has been read.
Mr. Justice Maule. I do not think you are in a situation to put in this evidence. This witness paid across the counter to somebody, upon something which they produced, a sum of money, and the thing then produced you call for.
Mr. Serjeant Bompas. We call for the document upon which it was paid, and we are going to take another step to show that the money so paid was applied to this vessel. Your Lordship has got the statement that they advanced the money for the purchase of the vessel.
Mr. Kelly. There is no doubt that the house of Zulueta & Co., on account of Martinez & Co., paid for this ship. My learned friend says he calls for that document. He calls for a document he has not shown to be in existence. Let him prove the existence of the cheque; and then the question arises, whether secondary evidence is admissible.
Mr. Serjeant Bompas. Can you say whether it was paid through a cheque or draft?—No, it is impossible.
Mr. Justice Maule. He says it was paid through an acceptance upon their house, or upon a cheque upon their house; that it was something purporting to come from Zulueta & Co., but that does not bind the prisoner; that cheque so purporting to come from Zulueta & Co. was sent back to Zulueta &, Co., and notice was given for the production of it?
Mr. Kelly. Yes, my Lord, notice has been given to produce the cheque or draft; that does not mean a bill of exchange accepted at Cadiz, where they had a house, or at Liverpool, where they have another house.
Mr. Serjeant Bompas. Cheque or draft would apply to a bill.
Mr. Justice Maule. If it refers sufficiently to the contents of it.
Mr. Kelly. Read the words of the notice, and we will see.
Mr. Serjeant Talfourd. “And also a certain draft or cheque,” &c. (Reading the terms of the notice.)
Mr. Kelly. I make two objections to this evidence; the first is, that no such cheque is proved to be in existence; and secondly, if there were, such cheque is not proved to have been in the handwriting of the prisoner at the bar, and therefore it is not admissible. I ought to add, as the notice to produce has been referred to, and is now upon the table, that the notice calls upon the prisoner, Mr. Zulueta, to produce all the books, documents, and accounts of his house, between certain dates, at all relating to the transaction in question; and all letters written, and copies of letters written by this house, or any body for them in relation to this matter. My Lord, every document there mentioned is here in Court, and in two minutes ready to be put upon the table.
Mr. Serjeant Bompas. To try you, I call for the paper referred to in the charter-party.
Mr. Kelly. The greater part are in Spanish, and the prisoner at the bar can distinguish them, but the clerks who kept these books, the corresponding clerk, and the clerk in whose handwriting they are, are ready to speak to any thing my learned friend may call for from the beginning to the end.
Mr. Serjeant Bompas. I call for that letter referred to in the charter-party.
Mr. Kelly. Put the documents upon the table.
Mr. Serjeant Bompas. You need not go through that performance. Will you produce the receipt mentioned in the charter-party?
Mr. Kelly. I have said I have it not.
Mr. Serjeant Bompas. There is a letter mentioned here: “We have received your letter of yesterday.” Will you produce that? Captain Jenning’s letter of the 25th of September, 1840?
Mr. Kelly. Certainly.
Mr. Serjeant Talford. Mr. Jenning’s letter is in English.
Mr. Kelly. Yes; I know that.
The same was produced and read, as follows:—
“Portsmouth, 25th September, 1840, Messrs. Zulueta & Co.:— Gentlemen, I am in the receipt of your favour of the 24th instant, and beg leave to acknowledge the favour you have conferred on the house of Messrs. Grant, Gillan, and Medley, and have acknowledged the same to the parties mentioned; at the same time beg leave to mention this port is different from many ports in England for men, and we have to give the month’s advance under favour in consequence of the many vessels of war wanting men, so that I have agreed with the men as I consider you will deem necessary; and from the heavy charges of the different tradesmen, and all other expenses I formerly mentioned, I do not consider the sum you have remitted sufficient to clear this port: under such circumstances, you will please to favour me with your advice by return of post, who I shall draw upon for the remaining balance, and hoping my accounts, when seen, may meet your approbation, I remain, your obedient humble servant, Thomas Jennings.”
Mr. Serjeant Bompas. This is in answer to that.
Mr. Justice Maule. The letter of the 26th of September is the answer:—
“We have received your letter of yesterday, whereby observe that the sum we have remitted you will not be sufficient to cover all the expenses to clear the ship. We much regret you have omitted mentioning the sum you require, which prevents our remitting you the same by this very post, thus causing a new delay in leaving that port, so contrary to our wishes. You will therefore write to us to-morrow, that we may receive your reply on Monday morning, informing us of the amount necessary to finish paying all your accounts and expenses, to remit you the same by Monday’s night post, in order that you may be able to sail for Liverpool on Tuesday or Wednesday at the furthest. You must not omit stating the amount required, and waiting your reply, we remain, very truly.”
Mr. Serjeant Bompas. That is the directing him to go to Liverpool.
(To Mr. Thomas.) On the 29th of August; have you a memorandum of the notes you paid on that day?—Yes.
The numbers of the notes?—Yes I have.
Mr. Kelly. While we were discussing this point, my learned friend called for something else, which I now produce; I do not know that your Lordships decided it. I had objected to the entry in the banker’s book being given in evidence against Mr. Zulueta, unless it was proved that that entry was in some way or other made known to him.
Mr. Serjeant Bompas. I am going to show that certain notes were paid to some person or other, and paid for this vessel; and these letters are evidence to show that he was the owner of the vessel.
Mr. Justice Wightman. There is a certain document taken to the bank, and notes paid for it.
Mr. Kelly. Then I object upon this ground. This is an indictment against Pedro Zulueta. I have not the least objection, that where documents are in existence, and members of the firm are connected with them, that they should be called to explain them; but I do object to any thing being given in evidence, done under the order of another person, unless it is proved to have come home to the knowledge of the prisoner. There is no proof that that entry ever came home to the prisoner, that he ever saw the notes, or that it was by any order signed by him or known to be his signature that these notes were paid, and therefore I object to its being any evidence against him. One can suppose a case like this. It is entirely unlike a mercantile transaction, where notice to one is notice to all the firm. If an action was brought against any one, a document affecting mercantile matters, the act of one partner is the act of all; and where it is a civil action or liability, the act done by the father would be evidence against the son, his partner, and that, though the son was not in England at the time, but was in Spain, and had no notice of the proceedings. Now let us try that: here is a transaction respecting the payment of bank-notes, and if, because it is supposed to be done by the house of Zulueta, it is evidence against this particular member of the firm, without any proof that it was done by him, it would be equally evidence against a member of the firm who was in Spain during the whole of the time; and it might have pleased Sir George Stephen to have selected him as a subject of prosecution; he might have been indicted for equipping this vessel and the other acts charged in the indictment; and if an act done by one member of the firm is evidence against another, it would be evidence against him. I apprehend that, supposing this payment of money to have any thing to do with this transaction, which I apprehend does not appear, unless it is proved it was done with the defendant’s knowledge or by his order, it is no evidence against him; and no act done by another member of the firm is any evidence against him. There is no proof that he saw these notes, or gave any order; and under these circumstances, upon this criminal charge, I submit it is not evidence against him.
Mr. Serjeant Bompas. I am aware of the necessity of the accuracy of the evidence to convict a party on a criminal charge; but I apprehend there is abundant evidence to establish that the notes given were the notes paid for the purchase of the vessel. It is not a case where you have no evidence of Mr. Zulueta having taken a share in the purchase of the vessel; you have evidence of his control over the purchase in his lending the money for the purchase, and that he interfered in the purchase of the vessel. You have also a letter written by him to Captain Jennings in respect of it, and I am going to show that Captain Jennings was present when this sum was paid for the purchase. I am going to trace it to two individuals, Bernardos and Jennings, and I am going to show that these notes were for the purchase of this vessel, and that the prisoner at the bar interferes with the vessel afterwards, as if he was acting as interested in it. I have put in two letters, one from the captain communicating to him as owner, giving an account of the transactions, and asking upon whom he is to draw for the amount required. The letter from Mr. Zulueta states that he will pay all the disbursements; he regrets the captain did not give him the amount, and requests him to go to the Salthouse Dock. In addition to the control over the actual purchase, he states that the money was paid for the purchase, he exercises a control over it, and directs the amount. Then you have the previous letter of Captain Jennings, and you have in these two letters a distinct act of ownership over the vessel, directing where she is to go, and distinctly exercising dominion over her. The question undoubtedly is, whether Captain Jennings was nominally appointed as master, he not being substantially the owner, and whether Mr. Zulueta did not from the beginning to the end transact the business of the vessel. That is for the Jury. I show he exercised control over it, and I show that this money was delivered to a person, and paid in purchase of the vessel. I submit it is quite clear that I am entitled to show that it was paid by these bankers.
Mr. Serjeant Talfourd. I submit that there is another ground on which this evidence is admissible. Pedro Zulueta, the prisoner, has undertaken to give an account of the transaction, and the account given in substance in the evidence is this:—That his house was authorised by Martinez & Co. to advance a certain sum out of the funds in their hands for the purchase of this vessel; that that sum was lent in advance to Captain Jennings by Martinez; that Captain Jennings became the purchaser, and was bonâ fide the owner of the vessel; that is not the precise evidence, but the substance. We propose to show that that account is not true; that the price of the vessel was not 500l.; the extent to which they were authorised to advance, but 650l. That that 650l. was a sum paid in some sort; that it is debited to the account of Martinez & Co.; that that sum was advanced out of the funds at a time when it was impossible that they could have had any communication with Martinez & Co., at the Havannah, to advance beyond the sum of 500l., which was stated to be the sum. Having taken that account, as given in the evidence, we are entitled to show that, in giving this account, the prisoner gave a false account as to a part of the transaction.
Mr. Kelly. If it is competent to my learned friend to give evidence of the falsehood of any statement made before the Committee, I challenge them to show the falsehood of any one statement made, with all the facilities I have given them with the books and documents of the house. But that is not the question: the question is, whether, because Mr. Zulueta has given certain evidence before a Committee of the House of Commons, in which he has stated his participation to a certain extent in the transaction in question, and in which he has stated the general effect of the transaction, any act done by any other member of the firm, or any one connected with the house, is to be made evidence against him. I apprehend, upon the plainest and clearest principles in the law of evidence, it is not; and in order to illustrate my argument I will merely put this case: Mr. Zulueta states, before the Committee of the House of Commons, and truly states, that his house, for a house at Cadiz, negotiated the purchase of this vessel, and the shipment of these goods. As far as that statement goes, for better or worse, it is evidence against him. But my learned friend says, therefore whatever was done by any other member of the firm, as a part of the transaction, is evidence against him. Let me suppose that the prisoner at the bar, having, by a letter read in evidence, authorised the purchase of the vessel; and, in addition to that, which is not yet in evidence, but may be had, directed that his correspondents, in Liverpool should ship goods for a certain place on board the vessel. Having been charged with the knowledge of the secret object and destination of the vessel, suppose his partner, unknown to him, had given some secret instructions to disregard the charter-party—Whatever orders my son, or my house, may have given you, take all these goods to the Gallinas, or any other slave dealing port, and barter them for two hundred slaves—and yet, upon the argument of my learned friend, that would be evidence here. My learned friend says, the prisoner has admitted he negotiated the transaction; and, therefore, any thing done by any member of the firm is evidence against him; that any thing done by any member of the firm, or any thing done by any body connected with the firm, would be a part of the transaction. To say that any thing done, which may be a felonious act, for aught I know, and though in relation to this transaction, not in my knowledge, to make that evidence against him, would be to indict one man for a felony committed by another, because he was a partner of that other, and because that house was concerned in the transaction out of which the felony arose.
(The Judges conferred together.)
Mr. Justice Maule (to Mr. Thomas). I think you stated, that the order upon which the money was paid on the 29th of August, was returned to Zulueta & Co.?—Yes, it was.
When was it returned?—We have no particular periods; but when the pass-book is called for, the vouchers are in the pocket of the book.
There was a pass-book between you and Zulueta & Co.?—Yes.
In that pass-book were all the payments entered?—Yes.
And this amongst the rest?—Yes; but I would not state whether it was a draft, or a bill at twelve months date.
It would state the account upon which it was paid?—Yes.
And you would with that send back the draft or order upon which it was paid?—Yes.
When was that done?—I cannot say when the book was called for: it might be upon the following day, or in the course of a fortnight or so.
It would be in the course of a fortnight?—It might be so, I cannot say: there are parties who do not call for their book in a year, or not at all.
Zulueta & Co. do not call for their book for a year?—No, I do not say that; they would have it frequently.
Did you return it with the vouchers in the pocket of the book?—Yes.
Did you do that frequently?—Yes.
When was the payment made?—The 29th of August, 1840.
You said the book was returned to them frequently?—Yes, I imagine so, that they would call for it: they call for it, or send for it.
When it is called for, it is put into the hand of the caller, and sent away?—Yes.
About how frequently?—It depends upon circumstances; some persons send frequently.
Do, for God’s sake, put out of your mind all other customers of your principals, but Messrs. Zulueta?—It is not my department, and I really do not know how frequently they send.
I have taken it that they had it returned frequently?—I imagine so; I think so.
That is, you think so, from knowing it?—No; from the general custom of merchants of their standing.
What you do know is this: that the payment is entered in the book; that the course is to return the book: whether it has ever been returned you do not know?—No, I do not; of my own knowledge, I do not: I believe so.
I thought it might probably appear that Messrs. Zulueta & Co. had this cheque.
Mr. Serjeant Bompas. Are either of your principals here?—I am not aware of it.
Not in obedience to the subpœna?—I am not aware of it.
Mr. Justice Maule. You had better postpone it till to-morrow; you will be able to get at it by that time?—It is not in my department.
Mr. Serjeant Bompas. What is the name of the person in whose department it is?—In that of the receipt-clerks.
Give me the name?—Mr. Hayburn.
Mr. Justice Maule. As this extreme rigour of proof is insisted upon, you may have twenty clerks?—I have no doubt that Messrs. Zulueta had the book away frequently; but I do not know it myself.
Mr. Justice Maule. Suppose we had an earthquake every three years, one would say that was frequently. If a man got a dinner only once a week, one would not say that that was frequently. It depends upon what it is?—I do not know how often it was.
Do you mean once in ten years, or what?—Almost daily.
Mr. Justice Maule. I think now, assuming that Mr. Kelly does not raise any question as to the fact of the pass-book going back with the vouchers, it being now taken that the draft whatever it was, or order, upon which this money was paid, having been returned to Zulueta & Co. before the notice to produce was given to the prisoner, that notice naming the cheque or order mentioning the date and mentioning the sum, and it containing the subsequent clause, “all other papers, &c., relating to this matter,” supposing instead of being a cheque or draft it was an acceptance for a sum made payable at their bankers, the subsequent part of the notice to produce is to be drawn in aid of the previous part, and that taking the two parts together it amounts to a reasonable notice to the prisoner to produce the paper, if in his power, even if it was an acceptance and not a cheque or draft. Then the question comes to this, whether the document here is admissible in evidence against the prisoner. The prisoner is a member of the firm in England, not absent in Spain as he might be, but he is in England attending to this matter; and notice having been given by the bankers of Messrs. Zulueta by the return of the vouchers that they had paid such a sum of money upon such an account, that that amounts to a statement to each of the partners of Zulueta & Co., and it is reasonable to suppose that they were acquainted with the statement in the pass-book and that document, and that they amount together to this, that it is the same as if you could show this gentleman had said to Zulueta & Co., on such a day I paid to such a person such an amount for your house: and we think the witness may be interrogated as to the account upon which he paid this money.
Mr. Serjeant Bompas. On whose account did you pay that 650l.?—Zulueta & Co.
On what day?—On the 29th of August, 1840.
What were the numbers of the notes?—47,194, dated the 9th of March, 1840, 100l.; 41,674, the same date and amount; 48,204, 9th March, 100l.; 36,020, 25th of May, 1840, Liverpool Branch Bank of England, 100l.; 46,243, 9th March, 100l.; 38,288, 9th March, 1840, 100l.; 1,364, 50l., August the 8th, 1840.
Mr. Emanuel Emanuel sworn. Examined by Mr. Serjeant Bompas.
I believe you reside at Portsmouth?—Yes.
Did you know a vessel called the Gollupchik?—Yes.
Was she sold by auction, or in any way?—Yes, by auction.
Were you the purchaser?—I purchased her for a friend.
What amount did you give for her?—600l.
And there were the auction expenses?—And the auction expenses.
Did you afterwards sell the vessel?—Yes.
To whom did you sell her?—I sold her to two parties who came together to purchase her.
Do you know their names?—Captain Bernardos and Captain Jennings.
What was the day of the month?—That I cannot tell you exactly.
Was it in August 1840, about that time?—I could tell you; I think it was in June.
Just tell me, if you can by any means?—I can tell you by the day I received the money, which was the same day I sold her.
Have you any memorandum made by yourself?—No, by my clerk, of the number of the notes.
Did you see the entry the day it was made?—Yes.
Mr. Kelly. That is not in your own handwriting; when was it made?—The same day as the letter was posted.
Mr. Serjeant Bompas. What was the day?—It was sold in September last.
Did you keep a memorandum of the numbers of the notes you received?—Yes, that is the only memorandum that was kept.
Tell me the numbers of the notes?—The numbers, as they are entered here, are single 100l. notes, J. B., March the 9th, 1840; J. B., 48,204; J. B., 47,194, same date, 100l.; J. B., 46,243, 9th March, 1840, 100l.; J. B., 41,674, same date, 100l.; J. G., 36,020, May 25, 1840, 100l.; J. G., 38,288, May the 9th, 1840, 100l.; then there was a note for 50l., No. 1,364, 8th August, 1840; making a total of 650l.
Were there any papers or documents you received or delivered in respect of the vessel?—I received no documents; she was sold by public auction.
Did you give any?—No, I only gave an order to the ship-keeper to deliver her up.
Have you got that letter?—No, it was not a business transaction, it was merely for a friend.
Had you the bill of lading, or any thing?—No.
Cross-examined by Mr. Kelly.
Who originally sold her?—She was advertised to be sold by auction, at the Exchange Rooms, by Mr. Robinson.
Do you know who he was?—An auctioneer at Portsmouth.
Mr. Serjeant Bompas. To whom did you pay the money for your purchase?—The money was originally paid by a cheque from the party by whom she was purchased, who attended the sale himself to bid for her; that cheque by some accident was not presented at the place where it ought to be; it came back to me and I paid it myself.
Mr. Justice Maule. You paid the auctioneer?—I paid the bankers myself finding there was a mistake, and it was immediately repaid to me.
That cheque was given to somebody?—To the auctioneer; not that cheque of mine, but the cheque of the party who purchased her.
Mr. Serjeant Bompas. I am now going to offer in evidence the papers of the vessel, the cockets that were on board the vessel. I am going to call for those, as my learned friend wishes me to call for one thing at a time.
Mr. John Brown called again. Examined by Mr. Serjeant Talfourd.
Have you the cockets there?—Yes, I have.
There are seven of them; No. 5 is the document we want. (The Witness produced the same.)
Mr. Serjeant Bompas. These are the cockets; they are not objected to; they are in page 30 of the book.
Mr. Serjeant Talfourd (to Captain Hill). Were those found on board the vessel, and delivered to you?—Yes.
They were delivered to you by Captain Jennings?—Yes.
Mr. Kelly. Do you propose to read all these documents?
Mr. Serjeant Bompas. No. There is one entry made of plate-glass, upon which a drawback is to be obtained by the person who ships it; all the rest are in the same form. Now, No. 7. (Mr. Brown hands that in.) Now, the bill of lading: hand that to Captain Hill.
Mr. Kelly. There is no occasion to trouble Captain Hill. I do not know how it is important, but I do not see how it is admissible; it is not in his handwriting, nor contains his name; it is found in the vessel early in 1841, many months after he sails. How is that evidence against the prisoner? The charge is, that the prisoner at the bar did equip and use the vessel for the purposes of the slave trade; that the prisoner at the bar shipped goods on board the vessel for the purposes of the slave trade. I need not refer to the letters in evidence or any other document; but here is a document purporting to be a bill of lading, not bearing the signature of the prisoner or any of the firm, nor seen by any of them, but found many months afterwards on board the vessel: how can that be evidence against him? Is that the only document found? There may be treasonable papers found there, and how can they be evidence against Mr. Zulueta, unless it is proved it was done by his orders.
Mr. Justice Maule. I suppose the object of the evidence is to show that there was no mention in these papers of Mr. Zulueta having any thing to do with it?
Mr. Serjeant Bompas. I ought to say there is the name of Zulueta and Co., the Spanish house at Cadiz.
Mr. Justice Maule. There is nothing found on board the vessel to indicate any concern that the Zuluetas in London had in freighting the ship or shipping the goods. I suppose it must be taken for granted, unless it is shown on the part of the prisoner that Mr. Zulueta’s name was in the document, that it was not his.
Mr. Kelly. The prosecutor is to make out his case that the prisoner at the bar equipped the vessel for the slave trade.
Mr. Serjeant Bompas. Employed it for that purpose.
Mr. Justice Maule (to Captain Hill.) Did you find any document mentioning the house of Zulueta in London?—None, but the papers before the Court.
And none of those mentioned any house in London?—The letter read is the only one.
Mr. Serjeant Bompas. We now produce certain letters found in the ship, not the ship’s papers. There is one in which the name was cut out, the letter authorising Captain Jennings to purchase the vessel; except that in, there is nothing to show they had any interest, or that they shipped the goods.
Mr. Justice Maule. These are all the papers found on board?
Mr. Serjeant Bompas. Now we are going to offer certain other letters.
Mr. Justice Maule (to Captain Hill.) Are these all the papers you could get?—Yes, these are all I could get.
Mr. Serjeant Bompas. I am going to offer the letters objected to in my address; we are going to show letters giving directions.
Mr. Kelly. My learned friend should not state the contents of the letters.
Mr. Serjeant Bompas. I have stated nothing injurious to the prisoner, only enough to call the attention of the Judges to them. I am going to prove the handwriting of them.
Mr. Kelly. The evidence at present is, that Captain Hill found on board the vessel, or that the master delivered to him, certain papers, those you now produce; you say nothing about the contents, but you are going to prove the handwriting?
Mr. Serjeant Bompas. Yes.
(Mr. Brown produced certain other papers, which were handed in.)
Mr. Brown. That packet contains nine enclosures.
Mr. Sebastian Gonzalez Martinez sworn. Examined by Mr. Serjeant Talfourd.
Do you know Pedro de Martinez, of Cadiz?—No.
Have you had any correspondence with him?—Never.
You are not acquainted with his writing?—Not at all.
Where have you lived; at Hampstead?—Yes, at Hampstead.
What is the name of your house at Hampstead; has it a name?—Yes, it has.
What is it?—Bellasise Park.
Cross-examined by Mr. Clarkson.
Do you know the gentleman in this dock?—Yes, I do; I have known him since he was a child.
What character has he borne in this city for integrity and good conduct?—Most excellent; he has been a good son, a good father, and a good husband, and a most honourable merchant.
Mr. Serjeant Bompas. I thought we should have been able to prove the handwriting. These letters are addressed to the correspondent to whom the vessel was consigned, giving directions in respect of the vessel, and there are instructions as to what is to be done with the cargo. Your Lordships will probably look at them; there is no actual signature.
Mr. Justice Maule. I have heard enough of them.
Mr. Serjeant Bompas. They are in Spanish; there is no name signed to them at all; there is the letter M, and there are directions in respect of the cargo which is on board. Now I apprehend we have two things to prove, and to give in evidence to your Lordships and to the Jury; the one is, what was the object of the vessel, what was to be done with her cargo, what was the object of her freight? There is the captain found on board, who delivers up the ship’s papers, and among others the directions to the consignees as to what is to be done with the cargo, and general instructions.
Mr. Kelly. I have three times heard my learned friend make an assertion to your Lordship, which I beg leave to deny. I am certain my learned friend is speaking under instructions false in themselves. He has never read the letters; I have. They have been before another Court in a proceeding to which this gentleman was no party, and I undertake to say they do not refer to the disposal of this cargo or this vessel in any way; and it is cruel in the extreme that such statements should be made in the hearing of the Jury, which they will never forget; and that those statements will remain when your Lordship rejects them, as you will do. I have read them all, from the beginning to the end; they were before the Privy Council, and I say they do not relate to it.
Mr. Serjeant Bompas. I have read them from the beginning to the end; I do not put my judgment against Mr. Kelly’s; but he asserts that they do not, and I assert that they do: whatever is in these letters I have carefully abstained from stating it in any way which shall injure the prisoner at the bar.
Mr. Justice Maule. Mr. Serjeant Bompas does not state that they contain any direction to employ the goods in slave trading.
Mr. Kelly. I deny that they contain any direction to employ the goods in any way.
Mr. Justice Maule. It is rather favourable to the voyage that there should be a document so produceable and regular, as instructions to the persons interested in the cargo: where there was nothing to conceal, persons would have those instructions.
Mr. Serjeant Bompas. When we come to matters of assertion, I yield to my learned friend; but when we come to the examination of documents, and to decide whether they are evidence, then we look at the evidence. It is absolutely necessary, if they are directions, that your Lordships should look at them to ascertain whether they are so or not, and in that way I should not have the slightest objection to submit them to the Court: they are at page 7; and there is one document I will call your attention to, in which there is a distinct direction as to what is to be done with the cargo on board; as far as that is necessary these are directions, or, as your Lordship says, there are none.
(A printed copy of the Letters was handed to their Lordships.)
Mr. Serjeant Bompas. If your Lordships look at the general direction, you will find it in page 7, “I have to request,” down to the words “so very precious.”
Mr. Justice Maule. Does that refer to any mention of the Augusta before that?
Mr. Kelly. Not at all; it refers to the vessel Urraca.
Mr. Serjeant Bompas. The vessel first in question was the Urraca, not the Augusta.
(Their Lordships referred to the printed Letter.)
Mr. Serjeant Bompas. If your Lordships will look at the bottom of page 38, you will see a paragraph beginning “From my preceding communication.”
Mr. Justice Wightman. He dispatched that ship?
Mr. Serjeant Bompas. Yes.
Mr. Justice Maule. Are there any other letters to the consignee relating to this ship, unless these do?
Mr. Kelly. I hope your Lordships will not take that for granted upon my learned friend’s statement: there are a great variety of documents, of the existence of which the prosecutors are perfectly aware; they have given no notice to produce them, and they would lay the matter open before the Jury.
Mr. Serjeant Bompas. I hope your Lordships will not give the least credit to these statements of Mr. Kelly; they deserve no credit.
Mr. Justice Maule. There are documents, Mr. Kelly says, which we shall see in due time.
Mr. Serjeant Bompas. There are papers here, and we wish every one to be put in, no doubt. The form in which we put it is this: that if a letter is directed to consignees giving directions, that is evidence of what is to be done with the cargo, they are directions in respect of it; and the question whether Captain Jennings was the owner of this vessel, or whether it was used as a cover under his directions, is a question for the Jury. That Messrs. Zulueta, on behalf apparently of Martinez, entered into a contract of charter-party with him there is no doubt, according to the statement and admissions in this examination; and they also ship these goods on board the ship of Captain Jennings: they were shipped for the consignee; they were the agents. What was to be done with those goods? The only way that can be ascertained, is by the actual order to the consignees in respect of them.
The second question will be how far Mr. Zulueta was implicated in it, and that will be shown by the conduct pursued, and the concealment he practised; but the question is, what was the object of it? What was to be done? If we see he employs this vessel to accomplish a particular object, we say it was for that purpose. My learned friend says, how can you give in evidence any thing that took place after the vessel left England? How can you say that it was employed for that purpose, except by something done in England? Suppose I show that these goods were ordered by an individual to be used for the purpose of the slave trade, and suppose I can show they were so used, that is, after they were sent. But I am to show by the conduct of Mr. Zulueta that that was the object. They are two separate things; how am I to show that was the object? I show the bill of lading by which they were consigned to certain persons; I show a letter directing those persons how to apply them. Suppose there is no signature to any one of these letters, does that prevent their being given in evidence? You must expect there will be concealment, if there is an illegal voyage; but if these are the orders upon which they are to proceed, how is it to be said that that is not the object of the voyage? I must show what was the object: how is it possible to show that? It is only by showing the orders given in that respect; there is no other way of showing that that was the purpose, except showing something after the vessel left. My learned friend has said many times, how can Mr. Zulueta be affected by any thing that took place after the vessel left England. Suppose a vessel was sent from England for the express purpose of receiving slaves, and did receive slaves; if I can affect him, I must show that it was done afterwards; if it was for slave transactions, I can only show by the directions and orders given to the parties to whom they were consigned what was to be done with them. They were shipped in the name of Captain Jennings by Mr. Zulueta: but what is to be done? If Captain Jennings was the agent of Messrs. Zulueta, the fact of ordering these things to be done would be evidence against Mr. Zulueta. It would be for the Jury to say whether Captain Jennings was employed, or was the real owner of the vessel; whether the owner or the captain. If we could show written orders to dispose of the goods, how could that be done but by putting in the document? If I could show Captain Jennings’s coming to the Gallinas, and stating he must apply these things in a particular way, can he turn round and say I have no instructions? Yes, these are your instructions; and no concealment in the case of a crime can prevent them being given in evidence, because, in that case, the captain is safe in taking out papers not giving general instructions as to the whole of the cargo: but if there is concealment, if a party hides himself, and acts in another name, and you find that vessel with certain documents on board giving directions what is to be done with the cargo, is it to be said that those documents are not receivable in evidence in respect of that cargo? If it is so, it is not possible to give evidence against any one who does not go to Africa to do it. It is nothing to show they sent out a vessel with that object. First, I show that in fact the directions were to send them for the purposes of the slave trade, and I show next that it was so used. If you show it was not so used, if you cut off the latter part, if you say the directions were on board to be so used, I submit it is evidence when the captain gives up the directions to the consignees as to how they are to treat these goods; and therefore, my Lord, I say it is no answer to say they are not signed. If I do not show by Mr. Zulueta’s conduct that he had some guilty knowledge—
Mr. Kelly. I do not take the objection that they are not signed.
Mr. Serjeant Bompas. I do not show that they are signed by Mr. Zulueta, which he says is necessary: in point of fact, I say it is immaterial, because, if a person whom Mr. Zulueta never heard of, had given directions in respect of these goods, that they were to be used for the purpose of slave dealing, he having shipped them, the only question is, did he ship them for that purpose? How do you show that? By his conduct. That he did employ the vessel is proved: he chartered it, and that is the only purpose. I submit that the only way is to show the directions at the time which they were to receive; I submit that the directions are evidence; and the last question is, whether Mr. Zulueta did it with that object.
Mr. Serjeant Talfourd. In this prosecution there are two propositions which the prosecutors are bound to establish; the first is, that this vessel was employed for an illegal purpose; and, secondly, that Zulueta was conscious of it at the time he entered into this contract. Those two propositions are separate and distinct. It is true you cannot establish the second without the first; but it does not follow that you cannot give all the evidence to establish the first without interfering with the second. You must establish the felony, before you show the receipt of the goods. There the object and purpose for which the vessel was fitted out are part of the transaction, and must be shown by legitimate means. It is said by my learned friend, that if Mr. Zulueta was guilty of the offence, he was guilty of it at the time he dispatched the vessel from this country; but it does not follow that all the evidence is to be confined to this country. No one can suppose that, if a vessel is fitted up with these leagers and other fittings, it was not intended to be used on deck in some other than legitimate trade; and, whether she was driven in by stress of weather or not, if she was turned into a slave trader, is it to be said that instructions what was to be done with her, whether they consisted in writing, in words, or acts, are not evidence? I grant it does not establish the guilt of the prisoner, but it is a step to it; and if we are excluded showing the nature of the directions to the consignee of the vessel, who must be known to the prisoner, we are prevented from showing any painting or any alteration done after the ship left this country. They are not evidence as the history of any other slaving transaction, or any other history or confession; they are not for that purpose evidence against the prisoner; but they are evidence against the prisoner in so far as they are acts done in respect of the dispatch of the cargo, and the employment of the vessel.
Mr. Justice Maule. I do not think it is necessary to trouble Mr. Kelly. It seems to me that Mr. Serjeant Talfourd is quite right in saying there are two things to be proved: one, the body of the offence, the slave trading, or the intention to do it, the taking the voyage; and the other is the participation and knowledge of the prisoner in it; and I think it quite true, that it might well be that the first matter might be established, and established completely, quite consistently with the innocence of the prisoner, and yet, notwithstanding, that these papers might be admissible in evidence upon this trial. There is no rule that requires, that in order that a matter may be given in evidence upon a trial between parties, that the evidence should be such as in itself is sufficient to prove the case; if so, all other evidence would be excluded. I admit it is quite competent to the prosecutor to prove, though he has not fixed the knowledge of the prisoner, any fact constituting any suspicion, or a plausibility. I think he might do that: but here the objection is not so much to the subject of proof, slave trading, as the medium of proof—the document seeking to establish it—this being a document not at all traced to the prisoner, nor any body in privity with him; it is merely found on board the vessel, and is not a document that can be read against him. It is not a statement accompanying any act done, it is found on board the vessel, found by some one who may be an agent or accomplice of the prisoner, and handed to Captain Hill. I think the mere circumstance of handing it to Captain Hill does not remove the objection of want of privity between the prisoner and the paper: I think it cannot be given in evidence. If the vessel sailed without any instructions, no doubt it is a very strong circumstance against the honesty and legal purpose of the voyage: if she is in a latitude, where slave trading is carried on, it affords an observation against the legality of the voyage.
Mr. Justice Wightman. I am of the same opinion: I think the document is not admissible, for the reasons stated by my brother Maule.
Mr. Serjeant Bompas not objecting, the prisoner was admitted to bail, and left the dock.
[Adjourned.
SECOND DAY.
SATURDAY, 28TH OCTOBER, 1843.
The names of the Jury were called over.—All present.
The Defendant took his place within the Bar.
The Witnesses on both sides, except those to character, were directed to withdraw.
(Joseph Bankes was called, but was not in attendance.)
William Thomas Onion sworn. Examined by Mr. Serjeant Bompas.
Do you reside at Portsmouth?—I do.
Did you know a vessel called first the Gollupchik, afterwards the Augusta?—I did.
Did you know a Captain Jennings?—I did.
Did you know his mate also?—Mr. Mottley.
In consequence of your knowing one or both of them, were you occasionally on board the vessel?—I was on board sometimes, almost the whole time.
Were you ever applied to to sail in the vessel?—Not directly.
Was any application made to you to join the vessel going any where?—An observation was made, but not a direct application.
You say you were on board; did you see the captain when he received any letters?—Yes; I generally saw him receive letters.
What is your occupation at Portsmouth?—A teacher of navigation.
Were you employed to teach anybody in that vessel?—I was giving Mr. Mottley instructions.
Mr. Justice Maule. What is the name of the gentleman?
Mr. Serjeant Bompas. Motley: M-o-t-l-e-y.—No; M-o-t-t-l-e-y.
You say you saw the captain receive letters; did you see him do any thing with any part of the letters?—He generally used to cut the name out.
Mr. Kelly. I must object to this. What can we have to do with all this? Here is a witness, of whom we never heard till to-day, to speak to what Captain Jennings has done with certain letters he received. How can that be made evidence against Mr. Zulueta, the prisoner at the bar? Any thing, which Mr. Zulueta authorised the captain to do, which he directed, or which he sanctioned after it was done, is evidence against him; but on what conceivable principle are the minds of the Jury to be perplexed and overloaded by circumstances taking place, which occurred in his absence, over which he had no control, and of which he had no knowledge till he hears it three years and a half afterwards?
Mr. Justice Maule. I do not know, at present, how it can be made evidence.
Mr. Serjeant Bompas. I do not know how it can be said that nothing is evidence against a person, unless he is present at the time. I conceive this is evidence on the same ground, as if the captain bought slaves with money sent by Mr. Zulueta for the express purpose of buying slaves, it would be evidence against him. The question is, whether from Mr. Zulueta’s conduct, it is not evident that he sent this vessel for slave trading; that must appear from all the facts: but here we have the confirmation, that there is one of Mr. Zulueta’s letters actually found on board the vessel with the name cut out. We shall prove also another letter, which the captain received. There is all that practice of secrecy, which shows at the time the vessel had been purchased by Mr. Zulueta, when Mr. Jennings was acting as captain of that vessel. We are to show the nature of the transactions of that vessel, and of the prisoner. One thing is, that there was a universal concealment. Supposing we could distinctly show that Jennings was going to the Gallinas for the purpose of dealing in slaves, then we might show, by Mr. Zulueta’s conduct, that he knew that was the object of the voyage; but in order to show what was the intention, we must show what passed; and if we cannot show the conduct of the captain on board that vessel, at the time he is the captain of that vessel, which we say there is evidence that Mr. Zulueta purchased; if we cannot account for that letter which is produced, in Mr. Zulueta’s handwriting, with the name cut out, and give evidence when it was cut out, and how it was cut out, it appears to me excluding us from a means of giving evidence of the facts. If this be not evidence, it is utterly impossible to prove any combination for the purpose of dealing in slaves, unless the prisoner charged says so himself, or is present when they say it. If they employ agents, and he is only one of the parties, I must show the acts of the parties: but here is a letter from on board the vessel, with the name cut out. I am showing that this person received letters while he was at Portsmouth from Zulueta, and that he cut out the name of the person writing those letters. I submit to your Lordship that that is evidence.
Mr. Justice Maule. We think the evidence is not admissible. It is very true, that you might prove slave trading by the captain of the vessel, although you did not show the prisoner to have been present at the time; but it does not follow that every thing which tends to show slave trading, and which would be admissible against the captain of the vessel, would be admissible against Zulueta. I do not think that follows with respect to the evidence now offered. In my opinion it does not necessarily tend to prove slave trading; it amounts to an admission on the part of the captain, that the letter he had received was from a correspondent, whom he desired to conceal; it amounts therefore to no more, if so much, as if Captain Jennings had said to this witness—This is a letter from a person from whom I am desirous of concealing that I have received letters. I think this is not evidence.
Mr. Serjeant Bompas. You say you were on board that vessel frequently, giving instructions to Mottley, and occasionally with the captain; did you see any thing on board that vessel in a bag at any time?—I saw some deck-screws; I found them.
Mr. Justice Maule. You say you saw them; do you mean that you found many, or only a few?—It was one bundle, wrapped up in canvas.
A bundle of deck-screws, wrapped up in canvas?—Yes.
How many?—About twenty, or two-and-twenty.
Mr. Serjeant Bompas. Will you explain what you mean by deck-screws?—Screws that are formed for placing a temporary deck for slaves, to go through the deck, and fasten to a beam to ship a deck.
To screw it on, and then take out the screws and move the deck?—Yes.
Mr. Justice Maule. Whereabouts did you find these?
Mr. Serjeant Bompas. Where did you find them?—In a secret place at the back of the cupboard.
Mr. Justice Maule. The cupboard; in what place?—In the cabin of the ship.
Mr. Serjeant Bompas. How came you to be looking there?—A boy, in putting the soup-tureen into the cupboard, happened to put it too far, and the tureen fell over; he told me—
Mr. Kelly. Tell us what you saw, not what he told you?—Consequently I got over and recovered the tureen, and I said, “Here is a store—”
Mr. Serjeant Bompas. Never mind what you said, but what you saw: you got up, and recovered the tureen?—Yes; and in searching about, I found these.
Did you do anything with them, or leave them there?—I put them on the table, and Mr. Mottley opened them.
What was done with them then?—They were put into a cabin abaft by the boy.
About what time was this, as near as you can tell?—About the middle of September, 1840.
Did you see any thing else in the cabin at all?—I have seen some shackles amongst the ballast.
Mr. Justice Maule. How many?—Oh, I do not know; it was mixed with the ballast, and one thing and another.
Have you been at sea yourself?—Some years.
How long have you left the sea?—About four years.
Did you see any false tops, any covers for the tops of cabins?—False tops, yes; all the bed places were false tops.
Just tell us what you mean by false tops?—A vacancy between the deck and the lining.
Was there any opening to them?—Yes.
Just describe it?—About four inches I suppose, so as to enable any thing to be stowed away there.
When it was stowed away, was it possible to be seen to be stowed away, or concealed?—No; it was concealed.
Mr. Justice Maule. All the bed places you say were with false tops?—What they call lined, between the deck and the lining, leaves a vacancy.
Mr Serjeant Bompas. Was there any thing to open or shut? Will you describe how anything could be put in?—A piece of, I do not know what you call it, a piece of furniture came over the facing.
Do you know what is the moulding?—A kind of moulding, and there was this vacancy.
To any body who came into that cabin and saw that, was that perceivable?—Not at all.
Cross-examined by Mr. Kelly.
What are you now by business or trade?—A teacher of navigation.
Were these articles, of which you have spoken, articles calculated for the carrying on the slave trade?—I presume so.
Will you allow me to ask in what way you have acquired your knowledge of what is fit for the slave trade, and what is not?—A representation of Mr. Mottley himself, who was on the slave trade on the coast for years.
It was by the representation of Mottley, who was on the coast for years, you acquired this knowledge?—Yes, that was the way.
That leads you to suppose that these were calculated for the use of the slave trade?—Yes.
Did you know that the Gollupchik had been sent to England to be sold by reason of its having been fitted up for the slave trade?—I heard so.
Was it not perfectly notorious through Portsmouth?—I believe she was not condemned, but it was said so.
You are a teacher of navigation; do you know whether before a vessel clears out from a British port for the coast of Africa, she is not examined by a Custom-house officer, to see whether there are any articles used for the slave trade?—I believe she is.
These articles you saw were at Portsmouth, before the vessel went to Liverpool, where she received her cargo?—Yes.
Do you live at Portsmouth?—I do.
Joseph Bankes, the elder, sworn. Examined by Mr. Serjeant Talfourd.
Do you live at Portsmouth?—Yes.
What business do you there carry on?—A cooper.
Do you remember the Gollupchik being at Portsmouth in the year 1840?—Very well.
While she was there did you go on board her?—Yes.
Were you employed to do any thing on board that vessel with the water casks?—Yes.
The leagers?—Yes; large casks for leagers; double leagers.
About what size were the casks?—There were different sizes; but those casks we are now speaking about would contain nearly a thousand gallons each.
How many were there?—About a dozen.
Were they entire on board when you first went on board the vessel?—Yes.
Where were they?—They were on one side the kelson, full of water.
Who was in command of the vessel at that time?—A person of the name of Mottley, apparently to me assumed the command.
Did you see Jennings there?—Yes.
Do you know a man called Bernardos?—No, I do not.
Did you receive any directions, I do not ask what they were, to do any thing with the casks?—
Mr. Kelly. I do not understand here, how this is evidence against Mr. Zulueta. The cause has lasted quite long enough, without our having all the directions given by all persons.
Mr. Serjeant Talfourd. My question was simply: Did you receive any directions from any person? I put that, and was putting it in the most unexceptionable manner.
Mr. Kelly. I will not object; go on.
—I received directions at my own shop, from a person calling himself Mr. Jennings.
Mr. Serjeant Talfourd. Did you, in consequence of any directions you received, go on board the vessel?—He took me on board the vessel the same day, in the shipwright’s boat.
In pursuance of any directions you received, did you do any thing?—I numbered each cask, beginning at 1, 2, 3, and completing each.
Each stave?—Yes; and then took the heads off the staves, put them on the inside of the staves, put them up together, and formed them into stacks.
Mr. Justice Maule. When you went on board, you found some staves and heads of casks?—I found the casks.
Mr. Serjeant Talfourd. He found the casks, and took them to pieces.
Mr. Justice Maule. You found the casks in the state of casks?—Yes, they were stowed in the hold of the vessel, full of water.
How many casks?—I think of the larger kind there were about twelve.
Mr. Serjeant Talfourd. About how many smaller ones?—I should say there were about fifty of the smaller kind.
Mr. Justice Maule. What did you do with the large casks?—Razed the staves of the large casks. I numbered each stave, stave by stave, till I had completed the circle of thirty or forty staves.
Did you mark them with chalk, or what?—I razed them with a proper razing iron.
Razing is scratching a mark?—Yes.
What did you do with them?—Took the hoops from them and put them together, and put them in close packs as we do sugar-casks.
You emptied the water?—Yes, emptied the water and took the casks to pieces.
You put the parts of the casks together as correctly as you could, to enable them to be put together again?—Yes.
Mr. Serjeant Talfourd. Where did you leave them?—I left them stowed in the ballast, after the ballast had been taken out and limbers cleared out of the bottom of the vessel and stowed them on the top of the ballast in packs.
Mr. Justice Maule. Each cask in a pack?—Yes, in a separate pack.
Mr. Serjeant Talfourd. Did you do any thing with the smaller ones?—Yes, some of them, and others I repaired for water for the voyage for the present crew.
Mr. Justice Maule. You did the same with some of the smaller ones, and repaired others for water for the crew?—Yes, just so.
Mr. Serjeant Talfourd. How long did it take you to do this?—About three weeks; from the 8th of September to the 19th we were positively engaged entirely in that work.
Did you see any thing else that attracted your attention, while you were engaged on board the vessel?—Yes.
What was it?—In two of the smaller casks, which we came to in the tier, our attention was attracted by a noise in the cask; it proved to be a quantity of what we call shackles when I was in the West India trade: we did not count them, but there might be from one to two hundred pair.
They were in the cask?—Yes.
Can you tell how many there were?—We did not count them, but I should consider from the weight and height of the cask, there were nearly two hundred pair.
Was any thing done with those while you were there?—Not that I saw.
Then they were left in the place where you found them?—Yes, they had been in the vessel before.
Mr. Justice Maule. What did you do with that cask?—We restowed it again.
Did you take that cask to pieces?—No.
How could you see the shackles?—Because we took the head out.
Did you put the head in again, or leave it so?—I left it so; but I believe my son did the remainder.
You do not know whether it was done or not?—No.
Cross-examined by Mr. Clarkson.
This was in September, between the 8th and 19th; you were eleven days about this?—That was the time that we were specially engaged on the large casks.
Was it necessary to hammer them to separate them?—Of course, we took all the hoops off.
That makes a good deal of noise?—Sometimes it does.
Had you any person to help you?—I had my own son, and the ship’s crew at times, at any time I wanted to get the large casks out of the hold.
How long was this after the vessel had been sold, and these casks in her, by public auction, as a condemned slaver?—I did not know she had been sold; I heard of it.
When did you hear of it?—Some time before, in August, I heard it.
Did you go to the sale?—No.
Do you recollect the vessel leaving Portsmouth?—Yes; that was two or three days after.
She left in ballast for Liverpool; did she not?—They said she was going to Liverpool.
Perhaps there was a doubt about that; did any persons come on board her to see her?—I did not see any persons particular; there were comers and goers, such as persons who do come on board to vessels, such as watermen, and men coming on board wanting to go out as men in the vessel.
Any body else that you remember?—Not that I know of.
Just describe: the hold of the vessel had been fitted with these large leagers which you speak of?—Yes.
Those you took down, where did you put them?—We stowed them on the top of the ballast, in the wings, any where, where there appeared to be room.
What was the ballast of the vessel?—Iron ballast.
Where do you say you saw the shackles, which you assume to be a hundred or two hundred in number?—On the starboard side.
That is where you left them?—Yes.
Did they form part of the vessel’s ballast?—I should say not.
What was the ballast?—The ballast was pigs of iron, such as are used on such occasions.
Have the kindness to tell me, whether or not you left those shackles on the top of the ballast?—I left them in the hold, on the starboard side.
On the top of the ballast?—Yes.
Were there any persons on board the vessel at the time you went away?—Yes, the ship’s company.
Any body else?—Not that I know of, except two shipwrights.
Were they two Portsmouth shipwrights?—I believe they were.
What were their names?—Case the elder, and Case the younger.
Are they here to-day?—No, they are not.
Had they been working on board the vessel?—Previous to me, and after I left her also.
Do you recollect the names of any other persons who bad been working on board her?—No, I know there were two others; but I do not know their names.
What were they?—Scrapers, and caulkers, and so on.
Portsmouth men?—I believe so.
Who called upon you to come here and be a witness?—The King’s solicitor, Mr. Greetham.
When?—Last Thursday.
Was that the first time you ever heard of being called here?—Oh, dear no; I had heard of it being talked about before.
Was that the first time you were called upon to attend?—Yes, positively to attend.
Did you communicate to Mr. Greetham that there were shipwrights, whose names you knew, working on the vessel, both before you were on board and afterwards?—No, I never mentioned it to any person.
You were never taken before any magistrate on this subject, were you?—No.
So that the party accused had no opportunity of knowing that you, or any person who comes with you, were about to attend?—No.
Mr. Justice Maule. I do not think it is convenient to put speeches, containing inferences to be derived from the evidence: it was the old practice, I am well aware, when speeches could not be made, and a very fair one then.
Mr. Clarkson. You have stated to the Jury what you saw of the vessel when she was at Portsmouth; can you give any account of what was on board her when she was at Liverpool, and whether there was any thing of the nature you have described?—No, for I never went to Liverpool.
Joseph Bankes, junior, sworn. Examined by Mr. Payne.
Are you the son of the last witness?—Yes.
Did you assist your father at Portsmouth on board the Augusta?—Yes.
Mr. Kelly. Is it only to confirm the other witness? I do not dispute that.
Mr. Serjeant Bompas. I thought the intention of the cross-examination was to break in upon that witness.
Mr. Kelly. Certainly not; you misunderstood it, then.
Mr. Clarkson. You may stand down, Sir.
Henry George Moon sworn. Examined by Mr. Payne.
Are you clerk to Mr. Vandenburg, the Russian consul at Portsmouth?—I am clerk to him, but he is not the Russian consul.
Do you remember the arrival of the Gollupchik at Portsmouth?—I do.
On the day of her arrival, did you go on board her?—I went on board with Mr. Vandenburg.
Do you remember the day of her arrival?—I think it was the 10th of June, 1839.
Who was the captain of the vessel at that time?—Thomas Bernardos described himself as captain.
Did he act as captain?—The vessel was under the charge of an officer of Her Majesty’s customs at the time; I forget the officer’s name.
Did you receive any letter from Bernardos to put into the post?—I took a letter on shore, addressed to Messrs. Zulueta & Co.
What did you do with it?—I put it into the post.
From whom did you get it?—From Captain Bernardos.
Mr. Payne. Here it is; “A Letter addressed by the said Thomas Bernardos, addressed to Messrs. Zulueta; posted at Portsmouth, the 10th day of June, 1839.” We call for that.
Mr. Justice Maule. Was that the same day you got the letter?—Yes, the same day.
Cross-examined by Mr. Kelly.
You saw nothing of the vessel, I presume, when she sailed on the voyage?—Her voyage out, do you mean?
Yes, when she sailed from Liverpool?—No, certainly not.
Mr. Justice Maule. Of course not.
Mr. Kelly. You know that ultimately this vessel was given up to the Russian government?—Yes, I do.
Thomas James Clark sworn. Examined by Mr. Serjeant Bompas.
How old are you?—Nineteen.
Are you a sailor?—Yes.
How long have you been a sailor?—Several years.
Did you sail on board the Augusta?—Yes.
Where did you enter on board?—At Portsmouth harbour.
Where did you enter for?—To go to Liverpool, at first.
At that time you entered only to go to Liverpool?—That was all.
Did you continue on board?—Yes.
You went from Liverpool in the vessel?—Yes.
Where were the sailors hired generally, at Liverpool or Portsmouth?—At Portsmouth some were hired.
And afterwards went on with the vessel, as you did?—Yes.
How many men were on board about, I do not wish to know exactly, when you sailed from Liverpool?—About twenty-one or twenty-two.
What was your occupation on board the ship?—I was shipped as a boy, a cabin-boy.
Had you any thing to do with the loading of the vessel, or not?—I was acting as a cabin-boy.
You had nothing to do with the loading of the vessel?—No.
Do you remember any storm arising after you had left?—Yes; after we left Liverpool we had a very heavy gale of wind, which lasted some time.
How shortly was that after you sailed?—I do not know; it might have been several days.
Do you remember about how far you were from Cork or Falmouth?—Not a very great distance.
Do you remember whether the wind was fair for going to Cork or Falmouth?—Yes; it was a fair wind back, if the skipper had been disposed to run back.
Did anything take place in the ship about going back?—Yes, there was a great disturbance with the crew; they said the vessel was not safe to go to where the skipper sailed to.
Where was she going to?—The coast of Africa: he said he would not go back, that he should lose his crew if he put back.
Mr. Kelly. They said it was not safe to go to the coast of Africa?—Yes.
Mr. Serjeant Bompas. Where did he sail for at last?—Sailed to Spain.
Was the wind fair for Spain, or not?—I do not know.
How many days were you before you got to Spain?—We were some time before we got to Spain.
Can you tell whether it was a fortnight or three weeks, or between the two?—I dare say it was a fortnight, or more.
You know the port in Spain; Cadiz, was not it?—Yes.
Were any of the men discharged at Cadiz?—Yes, the best part of them.
Do you know whether that was arranged before they went to Cadiz, at the time of the storm?—It was all the captain’s misconduct.
What was?—Their leaving of us.
How long did you remain at Cadiz?—We remained there, I do not know exactly the time, a month, or it might be two months.
Was any of the cargo discharged at Cadiz?—Yes; the best part of it was moved out of her into small vessels.
There was some tobacco that was damaged, was there not?—Yes.
Did some part remain?—I do not know.
You acted as cabin-boy, we understand?—Yes.
Cross-examined by Mr. Kelly.
You were on board this vessel at Portsmouth?—Yes.
Do you recollect a number of large water-casks, and a good many small ones, that there were on board the vessel at Portsmouth?—Yes.
That Bankes and his son were working at for some time?—Yes.
You sailed with them on board from Portsmouth to Liverpool?—Yes.
Were not they sent out at Liverpool, and sold to Mr. Toplis, the agent, who shipped the goods?—I know very well they were put on shore.
And the vessel sailed without them?—I am not very sure whether they were put on board again.
Did you ever see them again?—No.
Were there not some iron bolts and screws, which had been on board the vessel formerly, made up and thrown overboard while the vessel remained at Portsmouth?—No, not to my recollection.
You do not know any thing of that kind?—No.
Re-examined by Mr. Serjeant Bompas.
Do you remember any thing about the quantity of water that was actually on board; had they much or little water?—When they sailed from Liverpool they had a great quantity of water.
Were the water-casks carried all the way or not?—We had several great puncheons on deck at the time of the storm; we knocked one or two of the heads in to help the vessel; one or two of the casks went overboard.
You had been at sea before?—Yes.
Had you a less or a greater quantity of water?—
Mr. Kelly. How often had he sailed, and had he been on the coast of Africa?
Mr. Serjeant Bompas. How often had you been at sea before?—I had been to North America before.
You had never been to Africa before?—No.
You do not know what is usual on the coast of Africa?—No.
The Honourable Captain Denman, R. N. sworn. Examined by Mr. Serjeant Talfourd.
Were you commanding on the African coast at any time?—I was commanding on a district of the African coast.
Did that embrace the river Gallinas?—The river Gallinas was within the district.
How long, while you were on that coast, were you acquainted with that river?—I was myself constantly in sight of the river for a period of eight or ten months.
Had you also, besides the period you were opposite that river, other opportunities of observing what was going on there?—Whenever I was not there myself, I left a vessel to watch the place and report to me what occurred.
We have heard there were some slave factories, barracoons there?—There were no less than six slave factories on the shore.
According to your observation, what was the trade carried on there?—There was no trade whatever but the slave trade; exclusively the slave trade.
You did not yourself know the proprietors of the barracoons?—I did not know any of them personally.
Did you ever see any of them in their warehouses?—No, except one.
Who was that?—I believe it was Martinez, but I am not certain: the name we knew him by was Pedro Fernandos.
Mr. Kelly. You will state what you do know?—The name we knew him by was Domingo Fernandos.
Mr. Serjeant Talfourd. Did you know Ignatio Rolo?—Yes, I have seen him at Gallinas.
What did he do at the Gallinas?—He was landing from the Saracen when I saw him.
That was the vessel commanded by Captain Hill?—Yes.
Did you ever see him on any of those factories?—I never saw him, except at the factory at which he landed.
Did he land at the factory?—He was landed in a man-of-war’s boat.
Cross-examined by Mr. Kelly.
Had you means, while in the river Gallinas from time to time, of ascertaining how many towns or villages there were as far up the river as you went?—There were, to my knowledge, some three or four or five towns on different branches of the river.
How high up did you go yourself?—I went up about ten or twelve miles, I suppose.
You say that as far as your knowledge extends there was no other trade there but the slave trade?—My positive knowledge is that there was nothing but the slave trade there.
Do you mean to represent that you knew all the ships containing British merchandise consigned to that place, and what became of the merchandise which was landed by the ships? Have you no doubt that you knew enough of what took place at that place, to be aware what became of the merchandise landed from every ship?—The question involves two or three points; I must answer in the first place, that every vessel that landed cargoes there I knew of.
During what period?—During a period of ten months most particularly.
What ten months was that?—From the month of March or the month of April, 1840, until the month of February 1841.
Have you never heard of a ship, called the Supply, landing merchandise there to the value of between 13,000l. and 14,000l.?—Not during that period. I beg not to be misunderstood; I do not deny that vessels have landed cargoes there to a large amount, but I say the slave trade is the exclusive business there: there is no produce.
That is inference, perhaps, hardly warranted by your premises: is there any thing in the nature of the case to prevent the importing merchandise for consumption by the natives on the spot, and is it not consumed by the natives?—I say no produce is exported.
Mr. Justice Maule. The question is, what was done with the merchandise; was it given in exchange?—There were two articles of import, which are the one eaten, and the other used by the slave traders to buy slaves.
Mr. Kelly. What I understood you to say was, that you are not aware that there is any produce exported; but I ask whether articles are not imported to be consumed by the natives?—I do not mean to say a few hundred weight or a ton is not exported, but nothing to be called produce or exports.
You do not say there are not a few hundreds of tons?—I say not a hundred weight.
That was the case during the ten months you were there?—I have known the Gallinas since 1835. I was in charge of that station during two years; during that time I was ten months stationed at Gallinas, and had reports from the place.
When you say there is no trade carried on there but the slave trade, do you exclude from your observation the shipments of goods from England landed there and sold for money? for consumption there, sold for money?—If you put that question again, I shall understand it.
I wish to ask you, as you state that there is nothing but the slave trade carried on, that there are no exports, whether the trade may not consist of landing goods and selling them for money, as well as purchasing goods there, and carrying them away?—Just so.
Do you mean to exclude or include the fact of merchandise being landed there, and purchased there, and paid for in money, so that a stranger carrying it there, and selling it and receiving his money, would be doing what of course was perfectly lawful?—My answer is, that a person landing his goods there would not be able to procure a return, but that all the goods would go for the purchase of slaves, and nothing else: that is my reason for saying nothing but the slave trade is carried on there.
I will call them all slave traders, if you please. Do you mean to say a man may not purchase a quantity of goods which he may barter for slaves; may he not sell a part of them also to the natives?—The natives have no means of paying for them, except by the exchange for slaves: there is no produce.
As regards the shippers from this country; supposing that a man were to ship, not as agent, but on his own account, a cargo from this country, receiving money for what he exported, do you mean to say there would be any slave trading in that?—I should say not of necessity.
Mr. Justice Maule. Suppose he comes away in ballast, if such a transaction happens?—I have never known of such a case; there was no English trade during the time I was there.
Mr. Kelly. Do you mean that no English vessels went there?—Oh, yes; English vessels passed and had some little proceedings; the Augusta, for instance, was a vessel I always suspected.
Whatever took place at that place, the Gallinas, for some years before you do not know?—I know from the statement of the natives that there was no trade.
I ask you, do you know of a vessel, called the Supply, having landed and disposed of merchandise at the Gallinas to the amount of 13,000l. or 14,000l.?—There was no such vessel there during the two years I was there; certainly not during the ten months.
This is a place to which trading of the nature to which I have referred may have taken place at a time previous to the time you mention?—The trade of the nature I describe has taken place since 1835.
I will give you the dates; I will mention the year 1837; do you know of a vessel called the Milford, having landed and disposed of goods to the amount of 6,000l. or 7,000l. at the Gallinas?—No, I was not there at the time; but that does not alter the case, for the slave trade existed there.
I do not ask you as to the existence of the slave trade, but whether there has not been lawful commerce and ships coming away in ballast?—I know that 800 tons of goods were landed during the time I was there, and that none of the vessels went away except with money or goods, and except when they were consigned for cargoes from the Havannah, which was the case in nine cases out of ten.
According to your experience some vessels do carry commodities to a great extent, and receive payment in actual money and sail away?—Yes, those are exceptions, but such cases do occur.
Others would go and carry their goods there and receive slaves?—No, that is not the system. The freight of the vessel is consigned from the Havannah to a slave factor, Rolo, for instance, at Gallinas; she sails again in ballast, the freight is all paid to Havannah; that is the general rule.
From what, according to your sense of the word “slave trade,” do you make out that that vessel was at all engaged in the slave trade?—I do not say that vessel is of necessity engaged in the slave trade, for I do not think it is of necessity that persons know what they are about, but I say that the consequence of it is the slave trade.
You mean that those merchants and mercantile persons are carrying on the slave trade?—Precisely so.
A person living any where else, and exporting produce there, might very well export it and get his money for it, without at all knowing to what purpose that should be applied?—Certainly, that is very possible.
With respect to this place, called the Gallinas, I am quite sure that you have given the account of the place as you believe it to exist; had you not a hand in destroying the factories there, which is the subject of one or two actions against you at this moment?—There are actions brought against me for the destruction of slave factories.
When did the event take place? I do not ask whether you had any thing to do with it of course, but when did the event take place?—About November, 1840.
Has your experience led you to various other parts of the coast of Africa, where the slave trade is carried on?—Yes.
Are not there certain parts of the coast where there is a lawful trade as well as an unlawful trade?—In almost all places, the Gallinas is the exception.
Is your knowledge, that the Gallinas is the exception, obtained from your personal presence on the spot?—It is obtained from my personal presence on the spot.
So that any person, in England or elsewhere, might export commodities to half a dozen places along the coast of Africa, and might as well export there without knowledge as any other place?—With the distinction that there is no other trade carried on there.
How is a merchant carrying on business in this country, receiving an order for 5,000l. worth of goods from the Gallinas, to know that the Gallinas is an exception to other places?—I think if he does not know any thing of the character of the parties, he may be ignorant of the use to which they are applied.
You mean the character of the party to whom the goods are to be sent?—Yes.
What would the character of the person, to whom the goods were sent, have to do with the fact how the person in this country is to know that the Gallinas is the exception, and that the goods are not going there to fair persons as well as to other persons?—If he knows the person to whom the goods are shipped at Gallinas, I should suppose he would know there was nothing but slave trading carried on.
That is, if he knew as well as you who have been on the spot; are there not many persons who carry on the slave trade, who also carry on a very extensive lawful trade?—Undoubtedly.
Then how is a gentleman in England or America, who exports his merchandise on those orders, to know the use to which they are to be applied?—If he knows any thing of Gallinas, he will know the object to which they are applied.
If he does not know?—If he does not know any thing of Gallinas, he is not necessarily guilty of doing any thing which is wrong.
When a vessel is under the English flag, and manned by English sailors, is there not a far greater facility as to search, and as to fair trial and condemnation, than if it is a foreign vessel?—Yes, when there is suspicion of the slave trade; it depends upon some of the treaties.
Is there any thing at all to restrict or prevent your searching every vessel under the English flag, commanded by an English captain, and manned by an English crew?—Nothing at all, if we suspect.
You do it without opposition?—Yes.
When a vessel is seized which is English, it goes without any delay before an English tribunal?—Yes.
When it is a foreign vessel, does not it go before a Mixed Commission?—It depends upon the nature of the treaty; under some of the treaties it would go to the tribunal before a Mixed Commission.
A French vessel would go before a French tribunal?—Yes.
A Spanish before a mixed tribunal?—Yes.
And a Portuguese?—Yes.
When was it you first sailed for the coast of Africa?—I left England in February, 1840.
Did you before that know the Gallinas?—Yes, I knew it in 1835.
You had been there in 1835?—Yes.
You went there first in 1835, in the discharge of your professional duties? Before that time were you aware there was such a place?—No, I knew nothing about the coast of Africa.
You did not know that the Gallinas was a place where slaves were more or less dealt in than any other place?—I had no reason to know any thing about it till I went there.
Re-examined by Mr. Serjeant Talfourd.
Nor the trade any where else I presume?—No.
How many merchants are there at the Gallinas to whom goods might be consigned?—I believe they are all agents; there are no actual merchants.
How many people are there?—There are twenty or thirty Europeans altogether.
Were there persons to whom goods would be consigned, except those in slave factories?—There was not another white man.
Have the natives, in any of those villages, any means of paying for British produce?—They have no means of paying but by slaves; the country does not produce any produce.
You have been asked, whether a merchant here may not ship to the coast of Africa without knowing the nature of the trade there; do you think a merchant who had exported for twenty years could be ignorant?—It is impossible he could fail to know the nature of the trade.
Mr. Kelly. My Lord, my learned friend has called for a letter, which the witness says was put in the post on the 10th of June, 1839.
Mr. Justice Maule. I thought it was 1840.
Mr. Kelly. No, 1839, four years ago. The letter has been most carefully looked for, and is not in existence. A few days ago, Mr. Lawford looked carefully for it, with the assistance of some of Mr. Zulueta’s people, and they are utterly unable to find it. I shall not consider him a witness, if my learned friend wishes to examine Mr. Lawford as to that matter, he may. The effect of it has been stated. If he wishes to ask those persons who are aware whether such a letter had existence, and whether it is not lost, I will produce them, in order to afford him the opportunity of putting the question.
Lieutenant Colonel Edward Nichol sworn. Examined by Mr. Serjeant Bompas.
Have you become acquainted with the coast of Africa?—A long time.
How long?—Since the year 1822.
Had you any official employment upon that coast?—I was governor of the Isle of Ascension, and afterwards of Fernando Po, five years at each place.
In that situation, was it your duty to attend to the coast in other parts besides Fernando Po and the other place where you were immediately governor, and to make a report upon it?—It was.
Did you receive reports from the officers of the navy, or others, with respect to the various parts of the coast?—I have received reports from upwards of 200 officers of the navy, and masters of merchant ships on different parts of the coast, and have sent a small schooner attached to my command at Fernando Po, to make reports of the different slave trading stations and what was going on there.
Did you know the river Gallinas?—Yes.
Have you been there yourself?—I have.
For what period has it been within your observation?—Since 1822; I visited it in 1822, in His Majesty’s ship Victor.
Up to what time?—We did not stay long; we were chasing a slaver off the port.
How long had you occasion to know that place?—From that time to 1834; from 1822 to 1834; I left the coast in December, 1834; I have had continual communication with it since.
During that time what was the trade carried on at the Gallinas?—The slave trade.
Was there any produce exported from the Gallinas at all?—Not a particle that ever came to my knowledge, or under my observation, or from the information I have received.
Was the country round the Gallinas a country producing that which was fit for export or usually exported?—Nothing but stones and trees, hardly what would subsist the people living there.
Did you know of the existence of slave establishments there?—As notoriously as that this Court is here.
You have seen them yourself?—Yes, certainly, and had reports from the officers I sent there.
Were you there more than once?—No.
Did you know any persons residing there? Did you know Pedro Blanco?—I knew him from reports; they kept out of my sight, they did not come near me.
Was it part of your duty to suppress the slave trade as much as possible?—That is the duty of every British officer.
It is necessary I should ask you whether it was part of your duty?—Certainly. I had no authority to seize slave ships though, but to give information to His Majesty’s squadron; and I believe I did that to some good amount.
It was your duty to obtain information of what was going on along the coast, and to communicate it to the naval officers, to enable them to seize the vessels?—Certainly.
What was about the distance of your station from the Gallinas?—About 1500 miles I should say, except when I have been running down the coast. Fernando Po is a long way from the Gallinas.
But you have been running down the coast and obtaining reports?—Yes, both by myself and my officers.
Had you the means of ascertaining the way in which the slave trade was carried on?—I had.
What was the course; was it by barter or money?—You cannot get slaves for money. I never saw a slave got for money. They cannot be got without British manufactured goods supplied by the merchants.
They get British manufactured goods and barter them for slaves?—That is the general course of dealing for slaves.
They are brought from the interior of Africa to places where the trade is carried on?—Just so.
Are the slaves brought to the Gallinas for the purpose of being bartered for the goods there?—It is the most notorious and infamous slave port on the coast of Africa. There is a continual drain of slaves from all parts of the country to it; there is nothing going on there but the slave trade, any man sending goods there must know that.
Mr. Kelly. I do not know why we are to listen to these speeches, or even to this evidence. Unless something of this, so well known to this gentleman so constantly visiting that spot, had been communicated to the prisoner at the bar before the transaction in question, I am at a loss to know how he can be affected by it. I dare say there are many persons in this Court, whose geographical knowledge may have extended as far as the Gallinas, who never heard of such a thing until they heard it upon this occasion; and I do not know how notoriety to people on the spot can be evidence against the defendant, who has never been on that spot, and never had any communication of any kind with any person on the spot.
Mr. Serjeant Bompas. I hardly know how many objections are to be raised; to show the nature of the trade I must call these witnesses.
Mr. Kelly. I have no question to ask you.
Mr. John Brown called again. Examined by Mr. Payne.
Will you produce enclosure No. 18? (The same was produced).
(To Captain Hill). Will you look at that, and state whose handwriting you believe it to be?—I believe this handwriting to be Bernardos’s, but I did not see him write it; I have some writing I saw him write in my possession.
From the knowledge you have acquired, seeing him write, do you believe it to be his writing?—Yes.
Have you had that paper in your possession before?—This is one of the papers I found on board the vessel when I seized her.
Mr. James Brodie sworn. Examined by Mr. Serjeant Bompas.
I believe you come from the Post Office?—Yes.
You have been accustomed to see the post-mark on letters?—I have.
Have the goodness to look at that, and tell me whether that is the post-mark, and the date of it?—It is.
What is the date?—The 23rd of September, 1840, as far as I can judge.
Mr. Kelly. This is the letter about which we have already had a discussion?
Mr. Serjeant Bompas. I am not aware of any discussion about it at present.
Mr. Kelly. Are you about to offer it in evidence?
Mr. Serjeant Bompas. Yes.
Mr. Kelly. Then I object to it; I do not understand the principle on which it is offered. This is a letter which Captain Hill proves to be in the writing of Bernardos, written to Captain Jennings, and dated September, 1840. That is sought to be given in evidence against the defendant. There is no proof that he ever saw or heard of the letter in the whole course of his life.
Mr. Serjeant Bompas. Your Lordship will find the letter No. 18.
Mr. Kelly. It is a letter, I understand, which is printed at page 35, in the Appendix to the Appeal Case, at the top of that page.
Mr. Serjeant Bompas. It is a letter written by one of the parties to the other of the parties who were engaged in paying the money for this vessel, which was received from the prisoner at the bar. It is a letter from Bernardos, your Lordship will see, describing the voyage.
Mr. Kelly. You had better not speak of the contents of the letter; it is before their Lordships, and for the purpose of deciding the point of law, my Lord may look at the letter. I cannot help complaining of the course taken, which is not correct or usual. My learned friend takes the opportunity of stating, in the hearing of the Jury, something of the contents of that letter, which is before your Lordships, and of which your Lordships may possess yourselves while we are discussing whether the contents of it are to be stated in Court at all. If your Lordships hold it admissible, it will then be read; but, for the present, you may read it yourselves, and hear the argument upon it.
Mr. Serjeant Bompas. I cannot argue, without referring to the contents in some degree. I am quite sure that I am in your Lordships’ judgment, that in referring to the contents of the letters, I have abstained from using one single expression which could have an effect until your Lordships decide. I have not made use of a word which can justify the slightest possible degree of observation of my learned friend’s in the fair argument on the admissibility of the letters; I have gone only as far as was necessary for the purpose. As far as I have referred to their contents, I am quite sure your Lordships will be of opinion I have governed myself by the most careful attention not to say any thing which was unnecessary. It is important to ascertain where the vessel was to go. This is the person who paid the notes received from Mr. Zulueta for this vessel. I ask your Lordship whether that is not evidence of his being an agent of Zulueta in respect of this vessel. He writes to him upon his arrival in this vessel; he is employed to pay for this vessel, to purchase it; there is a communication from the one to the other of these two persons, so employed to purchase this vessel, in respect of the vessel and the trade—I say no further than that—and also giving instructions. I ask your Lordship if it is not open to me to prove where the vessel was to go to, having shown the communications which took place between the parties in respect of her going. This contains the actual instructions. The same rule exists as to evidence in criminal proceedings as applies to evidence in civil cases. The question has been before the House of Lords as to instructions given by one party to the other, and the judgment was set aside on that very point of instructions.
Mr. Justice Maule. I do not know what case you refer to.
Mr. Serjeant Bompas. There was one case as to Chambers’s bankruptcy, where the directions were considered a fact, and as such given in evidence in order to show that there were directions given. We know that it is necessary to have a certain quantity of water provided for the men going on that trade. This letter does not refer to supply of water, and therefore I use that simply as an illustration. Can it be said, that if a person employed to engage in a certain trade, employed by the person upon his trial to purchase a certain vessel, going to a certain place for a certain object, gives instructions in respect of what is necessary for the trade carried on at that place, that is not matter to be given in evidence on the trial? The object of that is to ascertain for what purpose she went there. I apprehend I have clearly connected these two persons and the prisoner. Supposing I could give this distinct evidence, that the prisoner knew of it, would not that be admissible? Do I not give evidence for the Jury to determine whether he was cognizant of these transactions? Is not that part of the case for the Jury to determine, whether by his conduct it is evident he did know what took place? I apprehend this is a part of the proceedings between two persons, both of whom have been employed by the prisoner; they proceed onwards with the knowledge of the prisoner in the prosecution of that voyage, which was ultimately accomplished, or would have been accomplished, if she had not been taken. This is one part of that proceeding, and it is for the Jury to say whether there was, on the part of the prisoner, a guilty knowledge of the proceeding or not. If there was not, there will be an acquittal of the prisoner. If there was that which amounts to a guilty knowledge of what took place, I apprehend it is impossible to exclude this which is evidence, and which may be important evidence, in showing that there was a guilty knowledge. This letter is found passing from one to the other; is proved to be posted while she was at Portsmouth in preparing for the voyage, and is found afterwards on board. But we prove the period of its transmission by the post-mark.
Mr. Justice Maule. I don’t think this is evidence. I am the more satisfied in excluding it, that I do not think it of the smallest importance; it does not prove any thing which is very material but what is already in proof.
Mr. Serjeant Bompas. That, my Lord, is the case on the part of the Crown.
Mr. Kelly. My learned friend having stated that this is his case, I feel it my duty to take your Lordship’s opinion whether there is any evidence to go to the Jury in support of this charge; and I will, in doing so, call your Lordship’s attention to what the charge is on the indictment, and in respect of the Act of Parliament, to which my learned friend has hardly alluded. The indictment charges the defendant with having employed (there are several words used, but I take the more general words), with having employed a vessel to accomplish a certain object, that object being trading and dealing in slaves. That the defendant was a party to the purchase of a vessel there is no doubt. The great question here is, whether there is any evidence at all, notwithstanding the great length of time this case has occupied, whether there is any evidence at all that the defendant, Mr. Pedro de Zulueta, had any intention of employing that vessel, or those goods, for the purpose of the vessel or the goods being used in the dealing in slaves. Now, where is the evidence? I reject, as your Lordship will, all that was mere matter of observation on the part of my learned friend. The evidence against Mr. Pedro de Zulueta consists in this—that he wrote a letter on, I think, the 20th of August, by which he authorised Jennings to give a certain sum of money for the vessel; the vessel was afterwards purchased, and the defendant puts the name of his firm to the charter-party of that vessel—the charter-party, by which Jennings having become the purchaser of the vessel, charters the vessel to the foreign house of Martinez & Co., for which the house of Zulueta & Co. were agents—Martinez & Co. thus become the charterers of the vessel, Jennings, on certain terms contained in that instrument, being the captain of the vessel.
It is said, also, that the defendant dispatched the vessel; that he shipped goods on board the vessel. My Lord, with regard to the whole of the rest of the case, as to his using, employing, equipping, or dispatching; as to his shipping the goods by the vessel; as to his interfering in any way in respect of the vessel or the cargo, that depends entirely upon his own evidence before the Committee of the House of Commons. That is evidence against him; that evidence I need not go into at length; that evidence, taken together and stated shortly, is this:—I am a member of the firm of Zulueta & Co.; that firm, including myself, did purchase this vessel, did cause it to be dispatched in the way stated, did cause certain goods to be shipped on board the vessel. We acted as agents for Martinez & Co., the goods being consigned to correspondents of Martinez and Co., named by Martinez & Co.; but as to the purpose for which that was done, as to the vessel itself, or any goods on board that vessel, being used for the purposes of the slave trade, I declare, though I admit that my house did dispatch the vessel, and did ship the goods, we had no idea or any suspicion that the vessel or goods could be intended for any illegal purpose whatever. That is the whole of the evidence, with this addition, that three gentlemen have been called, whose public duties have for some years past led them to the coast of Africa, and among other places to the Gallinas, who have stated that which has come within their personal observation—the place itself, and the dealings carried on at the place, having been familiar to them for a considerable time past. They state that they knew very well that it was a slave trading place. There is no evidence that the defendant, the prisoner at the bar, ever was at the Gallinas in his life; on the contrary, the evidence is the other way. There is no evidence that the defendant ever gave any instructions or authority, directly or indirectly, to Jennings, or to any other person, to use the vessel or to use the goods for the purposes of the slave trade, or for any other illegal purpose. There is no evidence that any communication was ever made by the house of Martinez & Co., or any other house, to the defendant, Pedro de Zulueta, that the vessel or goods were to be employed in the slave trade, or that any such illegal object was in contemplation.
Now, my Lord, what is the effect of the statute? The statute declares that slave trading, of a particular description, shall be illegal. The statute proclaims it a felony in any British subject to employ or equip a vessel, or to ship goods, for the purposes of the slave trade. That it may be taken on the admission of the prisoner himself, by his evidence before the Committee of the House of Commons, though there is no other evidence, that he did employ the vessel, and that he was concerned in the shipping of goods, I admit; but where is the evidence that he did those acts, or that he participated in those acts, for the purpose of those goods, or that ship, being employed in the slave trade? If this be so, if your Lordships hold that it is evidence to go to the Jury, that because a mercantile house in this city executes the order of a foreign correspondent, and sends out a ship with certain goods, which may be lawfully shipped, but which it is possible may be improperly employed, that therefore it is to be taken that they were to be unlawfully employed, and that therefore there is evidence to go to the Jury that he dispatched the vessel, and shipped the goods, in order that they might be unlawfully employed, I do not see how any mercantile house in this kingdom can trade in ships or goods, or execute any order, at the instance of any house in any part of the world, where either from that house personally dealing in the slave trade, or having communication with parts of the coast of Africa, it is possible that the ship, or the goods, may be applied to the unlawful purposes of the slave trade. If, without any proof of the party having used the ship, or the goods, for the purposes of the slave trade, without any document under his hand alluding to the slave trade, where all that is done is perfectly lawful, because it is possible that other persons, to whom he may have consigned his goods, may apply the ship, or the commodities, to the uses and purposes of the slave trade, that is to be held to be a case for the Jury that they were so intended, I do not know how any trade can be carried on. I submit, therefore, that here there is no evidence to go to the Jury of Mr. Pedro de Zulueta, the prisoner at the bar, having used this ship, or having shipped these goods, for the purpose of their being employed for the slave trade. I can easily conceive that a case might have been made out. The prosecutors seem to have been aware that communications had taken place between Messrs. Martinez & Co. and the house of Zulueta & Co., and they have called for the production of letters. I can easily imagine that a case might have been made out, inasmuch as Mr. Zulueta has stated that he purchased this ship by order of Martinez. But the prosecutor is bound to make out that case: he is not to raise a suspicion, and then to call upon the prisoner to clear himself from it: he must prove his case. He might call for any letters that had taken place between Martinez and the prisoner at the bar; for any communications between the prisoner at the bar and the captain of the vessel. If they had been produced, he might have established from them that something had been proved that established this offence. Then there might have been a case to go to the Jury; but the case here is one in which the prosecutor alleges, that Pedro de Zulueta himself employed the vessel, and shipped these goods, for the purpose of their being employed in the slave trade. The question is, the slave trade being prohibited by law, whether he is concerned in the intent and design of their being so to be used; whether there is any evidence that he knew of the slave, trade being carried on there; whether there is any evidence that he knew that these goods would be employed, or might be employed, for the purposes of the slave trade. I submit there is no case calling upon him, I will not say for an answer, but even for observation; I submit that it would be extremely unsafe where the prosecutor has the means of proving if there has been a guilty knowledge on the part of the defendant, if it is the fact that the intent of the proceeding is something illegal, and where the prosecutor might prove it by direct evidence, that he should content himself with proving that a ship was dispatched which might be used for the purposes of this trade, leaving it to the defendant to prove the negative of that, and to give in evidence all the documents which may have taken place, merely proving that it is possible that the ship the defendant dispatched might be so employed. I submit to your Lordships that is a dangerous doctrine, that it is contrary to the practice of the Court, and that there is no case in which the charge would not apply equally to every merchant in the kingdom who exported goods which might, after they left this country, be applied to an illegal purpose.
(The learned Judges consulted together.)
Mr. Justice Maule. Mr. Kelly, you may go to the Jury.
Mr. Kelly. My Lord, after what has fallen from your Lordships, of course I shall not hesitate to address the Jury upon the evidence which has been offered by my learned friend. There are one or two points, however, to which I would call your Lordship’s attention, and bring the terms of the statute under the attention of the Court; which, I apprehend, will be fatal to the prosecution, without troubling the Jury with observations which may extend to a considerable length of time, and which I shall feel it my duty to bring before the Court.
Mr. Justice Maule. Do you mean something in arrest of judgment?
Mr. Kelly. No, my Lord; on the effect of the evidence.
Mr. Justice Maule. I cannot think it is at all right that the question whether the case should go to the Jury should be twice put.
Mr. Kelly. No, my Lord. I say, supposing even that the charge is well made, that it is not an offence within the Act of Parliament.
Mr. Justice Maule. It comes to the same thing; I cannot see what you mean to say to the Court, except that the indictment is bad. That you state you do not propose to say?
Mr. Kelly. It is not that which I first contended.
Mr. Justice Maule. You did not propose to say that, and you now propose to say that the indictment is bad?
Mr. Kelly. My Lord, there is one point on which I do contend that the indictment is bad, though that is not the point to which I would call your Lordship’s attention. I was first about to submit to your Lordship, that the offence charged upon the evidence is not a felony within the Act of Parliament.
Mr. Justice Maule. That it does not support the indictment?
Mr. Kelly. Yes.
Mr. Justice Maule. It appears to me that that is exactly what you have been saying before.
Mr. Kelly. No, my Lord, the point is altogether and totally different.
Mr. Justice Maule. It may be a different reason, but it is the same point.
Mr. Kelly. I am sure your Lordship will see that it is different, when I come to explain.
Mr. Justice Maule. It is going for a nonsuit?
Mr. Kelly. Yes, it is in effect, my Lord; but if the Court will indulge me with a few moments of time, they will see that the Court is under a mistake, and that the point is most grave and proper for the consideration of the Court, and totally apart and distinct from that I have already submitted.
Mr. Justice Maule. All I want is that you should explain. Sometimes, when gentlemen are moving for a new trial, they are asked whether they move for a new trial on the point of misdirection, or the verdict being against evidence; I do not say it is imperative they should state distinctly, sometimes a gentleman might not feel prepared to state that?
Mr. Kelly. I will answer your Lordship’s question in as few words as I can. The point I make is this:—The charge is, that of fitting out a vessel to accomplish the object of trading in slaves, or slave trading at Gallinas, which I submit was not an illegal object: that supposing for a moment the facts were to convince the Jury that the defendant had fitted out this vessel, in order that Pedro Martinez & Co., or any other persons, might trade in slaves at Gallinas, that is not a felony within this Act of Parliament.
Mr. Justice Maule. Do you mean to say, that proof would not support the indictment; or, that supporting the indictment, it would not amount to felony? One of those things it must be.
Mr. Kelly. I say both: it would not support the indictment, and it would not amount to felony.
Mr. Justice Maule. Inasmuch as you say it would not support the indictment, that is going on the very ground you have gone on before, only giving another reason. If you do not see that—if you tell me you do not think it—I will hear you.
Mr. Kelly. I beg to state with the most perfect sincerity, I do not feel that.
Mr. Justice Maule. You mean to insist that the indictment is not supported, having previously insisted that the indictment was not supported?
Mr. Kelly. Yes; but on a totally different ground.
Mr. Justice Maule. I do not say you are not entitled, not on the same ground to say that the indictment is not supported, but you are not entitled to say that the indictment is not supported twice over; that you cannot put forward one set of reasons, and when they are overruled, put forward another set of reasons; for if you could, in case they were overruled, you might then put a third.
Mr. Kelly. If I had had the slightest idea that it would be deemed inconvenient that I should submit one point for your Lordship’s consideration, and ask for a decision on one before I proceeded to the other, I should have submitted both; I have only to ask your Lordship’s pardon for the course I have taken.
Mr. Justice Maule. I am quite sure that you must see that where there are several grounds for making that motion, it is desirable that they should be all stated in the outset, for otherwise they might split into separate motions. The universal course is, that all the grounds should be stated, and the unity of the object preserved; and the Court yields with apparent reluctance to a different course. The object you now have is to induce the Court to rule that there is no evidence to go to the Jury. That, you have before submitted; you say you have a different reason, but that different reason does not raise a ground for the Court hearing the application repeated. I only regret you did not take the course which the Court thinks the best. If you insist upon it, I shall feel bound for the convenience of the Court, not to allow an old and very able counsel to do that which would not be fair in ordinary cases; but if you say you have made some slip or omission I will hear you.
Mr. Kelly. That is really so. If your Lordship will pardon me one moment, I will take what course your Lordship thinks most convenient for practice.
Mr. Justice Maule. You omitted something?
Mr. Kelly. Yes, my Lord; I will state what is quite unconnected with the objection I have taken. This indictment charges the prisoner with having equipped a vessel, and shipped goods, in order to accomplish an object, that object being the exercising of the slave trade, and it is framed upon the Act of Parliament of the 5th of George IV, chapter 113. Now, my Lord, by the 2nd section of that Act of Parliament, slave trading by certain persons, and under certain circumstances, is declared to be unlawful. By the 10th section of the Act, it is enacted that if any person shall among others, equip a vessel, or ship goods, in order to accomplish any of the objects theretofore declared to be unlawful, he shall be guilty of a felony. That is the felony charged in this indictment, namely, that the prisoner at the bar equipped a vessel, and shipped goods, in order to accomplish one of the objects declared to be unlawful, namely, that of trading in slaves. Now, the point is this: the charge, supposing it substantiated by evidence, is this—that the prisoner at the bar equipped this vessel, and shipped these goods, in order that they might be used in the slave trade, in order to accomplish the object of trading in slaves at Gallinas, in Africa. The Gallinas is not a British settlement, and is not a British colony, and therefore that species of trading is not declared unlawful by that Act of Parliament; the trading declared by that Act of Parliament to be unlawful must be a trading by British subjects. The trading, in order to be unlawful within the meaning of this Act of Parliament, must be a trading by British subjects; and moreover, at the time when this offence is supposed to have been committed, it must have been a trading at some colony either in Great Britain, or some colony or settlement belonging to Great Britain. That will appear from another Act of Parliament, passed to remedy the defect under the former Act of Parliament; your Lordships will see, that by the 2nd section of the Act of Parliament, the terms are general.
Mr. Justice Wightman. What Act are you upon Mr. Kelly?
Mr. Kelly. I am now on the 5th of George IV. By clause 2, it is provided, “that it shall not be lawful (except in such special cases as are hereinafter mentioned) for any persons to deal or trade in, purchase, sell, or barter, or transfer, or to contract for the dealing or trading in, purchase, sale, barter, or transfer of slaves, or persons intended to be dealt with as slaves,” and to do a variety of other acts which are by that section declared to be unlawful. Now, my Lord, though the words are general, “that it shall not be lawful for any persons to deal or trade in slaves,” the legal effect of them is, that it shall not be lawful for British subjects to deal in slaves; and your Lordship will see by the subsequent Act of Parliament it also means, that it shall not be lawful for British subjects to deal in slaves, either in Great Britain, or in the settlements or colonies of Great Britain, and that that Act of Parliament did not extend to the trading in slaves in foreign states.
Let us take the two points of the proposition. First of all, this manner of trading in slaves by foreigners becomes material in this view: I presume, from the opening and the evidence, it was intended that this ship and these goods should be taken to Gallinas, and there used by the consignees of the vessel and the goods, either by bartering the goods for the purchase of slaves, or selling the goods and with the produce buying slaves. It is not material to consider now how far that is within the Act of Parliament, but the object, which I presume is the unlawful object with which the prisoner at the bar is charged with having dispatched this ship, is the object that the consignees or some other persons at Gallinas should trade in slaves by means of the ship or the goods. I submit that is not a trading in slaves within the 2nd section of the Act of Parliament, that though the words are general, it does not apply to aliens as the consignees of goods, which Martinez were, but to British consignees of goods, which in the Act of Parliament makes the act criminal. If the act be committed abroad, it is not an offence within the Act. A trading in slaves abroad by Rolo, by Martinez, or any persons whose names we have heard mentioned, would not be criminal within the Act of Parliament. The object of the charge is the trading at Gallinas. Now, the trading in slaves any where abroad by an alien is not an offence within this statute.
In order to illustrate this, let me suppose that the vessel had reached the Gallinas, that the consignees of the vessel had employed it for the transport of slaves, and had taken the goods and bartered them for a quantity of slaves, that would not have been illegal within this Act of Parliament. It would undoubtedly have been illegal for any British subject to have done so within any British colony, for this Act is binding on all British subjects throughout the British dominions, but it would not have been illegal for Martinez or any foreigner to deal in slaves in that place; and therefore, supposing it were proved that the prisoner at the bar had dispatched this vessel, that Martinez or Rolo might deal in slaves in foreign parts, that is not one of the objects to which this statute applies, for it applies only to British subjects, and not to foreigners.
My Lords, I need not cite authorities, they are numerous. There is one which is precisely to the point, The King v. Depardo; that is perfectly conclusive upon that subject: that is in 1st Taunton, in which a Chinese sailor who had enlisted, or rather had become a seaman on board one of His Majesty’s ships, committed manslaughter in the Chinese seas, and the question was, whether he was amenable. The great point argued by the late Lord Tenterden and Mr. Burrough was, whether that offence, committed by an alien, was within the Act of Parliament. The prisoner having been convicted, he was afterwards pardoned, on the ground that an Act of Parliament, declaring any particular act to be a felony, such act, if committed abroad by an alien, was not within the Act of Parliament, an alien not being within a British Act of Parliament: so I apprehend no position to be clearer than that a trading in slaves at Gallinas by Rolo, or Martinez, or any person to whom it can be imputed to the prisoner that he intended this ship and goods to be consigned, the trading in slaves by any alien there, would not have been unlawful within this Act of Parliament. If it would, the consequence would have been that a foreigner, Rolo or Martinez for instance, who might be lawfully, according to the laws of their own country or the laws of that place, trading in slaves, might, by engaging in that trade in slaves in the course of this very transaction at the Gallinas, have afterwards been prosecuted here, and convicted here; whereas nothing can be clearer than that these laws against the slave trade can only make the act an offence when it is done by British subjects, who alone are the objects of a British Act of Parliament: therefore I submit that the object being established, supposing the case sought to be established to be so established that Mr. Zulueta dispatched this vessel to enable Martinez to deal in slaves, that is not an object declared unlawful by this statute, for that would have been a trading by aliens who are not within this statute, and the shipping of goods to accomplish that is not within it.
But, my Lord, I go further; I have the case of Depardo, in Russell on Crime, it is not at so much length as in the report in Taunton. The marginal note is, “A manslaughter committed in China by an alien enemy, who had been a prisoner at war, and was then acting as a mariner on board an English merchant ship, on an Englishman, cannot be tried here under a commission issued in pursuance of the statutes 33 Hen. VIII, cap. 23, and 43 Geo. III, cap. 113, sec. 6. 1 Taunton 26.” The principle is perfectly clear, that a person afterwards coming to the country, is not to be treated as if he had previously been a subject of the country; so I say here, that the trading in slaves at Gallinas, or any where abroad by a Russian or a Pole, or any other alien, would not have been within this Act of Parliament at all; it would not therefore be an illegal object within this statute, and the dispatch of goods or a ship to accomplish that object would be no felony.
But, my Lord, the case is rendered perfectly clear by the highest authority, namely, the authority of the Legislature itself, by means of another Act of Parliament, the 6th and 7th of Vict. cap. 98. This Act of Parliament shows that the case is stronger than I have put; and it shows that until the passing of this last Act of Parliament, which took place in the present year, 1843, it was not illegal, within the statute of the 5th of Geo. IV, even for British subjects to trade in slaves, except within the British dominions. The object of this Act of Parliament is to extend the provisions of the 5th of Geo. IV, so as to make it, from some day mentioned in the Act, criminal in British subjects to trade in slaves in any part of the world, in foreign states as well as in the British dominions.
Your Lordship will find this Act recites the 5th of Geo. IV, and recites the second section, to which I have called your Lordship’s attention; “whereby it is enacted (among other things) that it shall not be lawful (except in such special cases as are hereinafter mentioned) for any persons to deal or trade in, purchase, sell, barter, or transfer, or to contract for the dealing or trading in, purchase, sale, barter, or transfer of slaves, or persons intended to be dealt with as slaves,” and so on. Then it recites all the different acts which are declared unlawful by the 5th of Geo. IV, and then it proceeds: “And whereas it is expedient, that from and after the commencement of this Act, the provisions of the said Act hereinbefore recited shall be deemed to apply to, and extend to render unlawful, and to prohibit the several acts, matters, and things therein mentioned, when committed by British subjects in foreign countries and settlements not belonging to the British Crown, in like manner and to all intents and purposes as if the same were done or committed by such persons within the British dominions, colonies, or settlements, and it is expedient that further provisions should be made for the more effectual suppression of the slave trade, and of certain practices tending to promote and encourage it; Be it therefore enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same, that all the provisions of the said consolidated Slave Trade Act, hereinbefore recited, and of this present Act, shall, from and after the coming into operation of this Act, be deemed to extend and apply to British subjects wheresoever residing or being, and whether within the dominions of the British Crown, or of any foreign country,” and so forth: so that your Lordship sees this Act of Parliament clearly shows this, that before the passing of this Act, though it was declared to be unlawful to trade in slaves, the Act meant that it should be unlawful only for British subjects to trade in slaves any where within British settlements or colonies, and that it required the aid of another Act of Parliament to make it unlawful (not for aliens—for as to them it still is not unlawful—but to make it unlawful) even for British subjects to trade in slaves, or do the other acts referred to in this statute. The state of the law was, that aliens might trade in slaves in foreign parts without contravening that Act of Parliament, and that British subjects might trade in slaves in foreign parts without contravening that Act of Parliament. By the Act of the 6th & 7th of Vict. the provisions of the Act of Geo. IV are extended to the case of British subjects: it leaves the case of aliens as it was before, and it makes it unlawful for British subjects to deal in slaves, in the Gallinas for instance—so that your Lordship sees the objection presents itself in this way—this is an indictment for a felony, the felony being the dispatching a ship for the accomplishment of an illegal object, that being the slave trading at the Gallinas; but at the time when this Act passed, it was not illegal for foreigners to trade in slaves at Gallinas. If it is not illegal now, it was not then illegal for British subjects to trade in slaves in foreign countries. The present Act of Parliament renders it illegal for British subjects to trade in slaves in the Gallinas, or any other foreign country; but it was to come into operation only on the passing of the Act in 1843. My learned friend reminds me that it does not come into operation until the 1st of November: but that is quite immaterial; it has no retrospective operation; it was not in operation in 1840 or 1841, when it is stated that this felony was committed by the prisoner.
Before I sit down, I would also take your Lordship’s opinion whether there is any offence proved within the city of London. Your Lordship observes this is not a trial under a section contained under one of the Acts of Parliament, providing that any offence against the statute may be laid in Middlesex. The indictment is not at all framed on that section of the Act of Parliament; it is framed on the common law, except so far as it is governed by the Central Criminal Court, and the venue is laid in London. It must be proved, therefore, that a felony was committed in London. The felony, said to have been committed, is the equipping, dispatching, using, and employing the ship, as charged in one set of counts; and the shipping the goods, as charged in another set of counts. Now, the dispatching the ship was at Portsmouth, and afterwards at Liverpool. It was dispatched at Portsmouth, went to Liverpool, was there loaded and then dispatched, and there all the goods were shipped. So that your Lordship sees the equipping, the using, the dispatching the vessel, any thing that could be done with the illegal object of dealing in slaves, must have been done at Liverpool. Neither the vessel, nor the goods, as far as appears, were ever in London. I submit to your Lordship, on that ground, there is no offence committed in London. Another objection which arises on the indictment I do not trouble your Lordship with, for it will apply in future, if necessary.
Mr. Justice Maule. Are there any others?
Mr. Kelly. No, my Lord.
Mr. Justice Maule. I think there is no ground for the second point on the Act of Parliament of 6 & 7 Vict., cap. 98, as affording a construction to the Act of 5th Geo. IV, cap. 113. The suggestion is, that this Act amounts to a Parliamentary declaration, that the Act of the 5th of Geo. IV, cap. 113, does not prohibit Englishmen engaging in slave trading abroad. I should be very sorry to put a construction upon that Act, which would involve so great an absurdity to it, as would be created by its being supposed to be laid down that that which was declared to be illegal in Great Britain, and Ireland, and the Isle of Man, and also in the East Indies, and West India Islands, is not at all prohibited on the coast of Africa, which is the construction sought to be put upon this Act of Parliament. I cannot help thinking the Legislature have expressed the intention of prohibiting English subjects trading in slaves on the coast of Africa; and if that be so, the construction which Mr. Kelly insists ought to be derived from the statute of Victoria is not the true construction, or one which ought to prevail. With respect to the other objection, we think there is evidence to go to the Jury of Mr. Zulueta’s acts in London.
Mr. Serjeant Bompas. May I call your Lordship’s attention to the 50th section: “And be it further enacted, That all offences committed against this Act may be inquired of, tried, determined, and dealt with, as if the same had been respectively committed within the body of the county of Middlesex.” If it is within the jurisdiction of the Central Criminal Court, the venue is perfectly immaterial, if it is within the venue of the Court.
Mr. Justice Maule. I apprehend, that if a prisoner is indicted for a felony in Essex, within the limits of this Court, he will be tried here.
Mr. Bodkin. In a case in this Court where the venue stated merely the jurisdiction of the Central Criminal Court, the Court of Queen’s Bench held that indictment bad, because it was impossible to say from what county the Jury were to be called.
Mr. Justice Wightman. There the indictment had been tried in Middlesex, being removed from the Central Criminal Court. It was removed by certiorari and tried in Middlesex, and it was said there was no direction on the record to try it in Middlesex.
Mr. Justice Maule. But Mr. Bodkin says, if it is a London case, there ought to be a London Jury; if in Essex, an Essex Jury.
Mr. Bodkin. The Court of Queen’s Bench held the locality to be material.
Mr. Justice Wightman. Not generally. I have stated how it became material there, and why it is not material here. The case was removed by certiorari, and therefore it became material.
Mr. Kelly. As this is the first trial under this Act of Parliament, your Lordship will probably consider it proper to reserve the point whether this trading is within the Act.
Mr. Justice Maule. The point has been very fully and ably argued, and I think the Court has given it sufficient consideration. We have no doubt about it; we do not consider it a point on which there is any doubt.
Mr. Kelly. Perhaps the Jury will retire for a few moments before I begin my address.
Mr. Justice Maule. For a few moments, not to exceed a quarter of an hour.
[The Jury retired, and after a short time returned into Court.
Mr. Kelly. May it please your Lordships.
Gentlemen of the Jury,—Their Lordships having determined that this case is fit to be submitted to your consideration, I now proceed to discharge the very anxious, the painfully anxious, duty imposed upon me in consequence, of addressing you on behalf of the prisoner.
Gentlemen, I should ill discharge that duty if I hesitated one moment to denounce this prosecution as one of the most unconscientious prosecutions that ever any individual has dared to bring forward in an English court of justice.
Gentlemen, pardon me if I should express myself in any part of this case with any undue warmth; attribute it to the anxiety I must naturally feel, when I know that all the interests in life, the happiness here—I had almost said hereafter—of the young man at the bar, whose defence is committed to my charge, depend upon your verdict upon this transaction, upon which I, and I only on his behalf, have to address you.
He is a young man, now I believe only seven or eight-and-twenty; he is a foreigner, born in Spain of a Spanish family; he and his ancestors are of that country and not of this, and he has become a member of the mercantile house of which his father is the head. He has, during the latter years of his life, been resident in England, and has from time to time bestowed some attention upon the business of the counting-house and the commercial concerns in which the firm were engaged, and he has participated but as a member of the firm in the ordinary course of business in this transaction, which is, indeed, a very small transaction among many very great and important ones passing through that house; and now, to his consternation, and to his unspeakable astonishment—he, a young man of spotless character—he, who one of the witnesses for the prosecution has already described to you upon his oath as a good son, a good brother, a good father, a good husband, and as an honourable member of society—he finds himself charged here with a felony, and that upon evidence such as I shall have in detail to call your attention to. He is charged with a felony upon which, if from want of ability or from want of caution in his advocate he was to be convicted, he must be transported for fourteen years as a felon, and forfeit his property, and forfeit his character, and be ruined for life.
Gentlemen, this is the case before you, and I do ask in the outset, is this a prosecution which ought to be brought forward? Mr. Serjeant Bompas, whose duty it was to state the case to you, having opened that case—how, I shall have to remind you when I call your attention to something which in the opening fell from my learned friend—having opened his case fully and in detail in a speech of some two or three hours, after he has sat down thinks it necessary to rise again and tell you that Sir George Stephen is the prosecutor in this case.
Gentlemen, you have already heard from one of their Lordships, and you know it is a matter of history, that the British government has long exercised its energies and its mighty powers in putting down and preventing the odious slave trade: you know that the powers of the government have been wielded for many, many years past with that view, by those who are sincerely, from the bottom of their hearts, determined by every lawful means to put down that trade; you know that the whole conduct of this honourable and innocent young man has been under the consideration of the former government and the present government. The late Colonial Secretary, Lord John Russell, whose duty it would have been to have protected his own character, and that of Great Britain, by this prosecution, if any offence had been committed, was a member of the Committee, and inquired minutely and distinctly into the transaction; Lord Stanley, also, the present Colonial Secretary, was a member of the Committee. Both governments were regularly and fully acquainted with all the transactions in question, and those governments, whose duty, as my learned friend has told you, it was to do every thing they might to put down the slave trade, so far from feeling it a case for prosecution, the Committee themselves, and the present and the former governments, have fully acquitted this young man, and the house to which he belonged, of any guilty participation in this transaction, as I trust you will to-day acquit him by your verdict. The government of 1840 and the government of 1842, the past and the present government, fully acquainted with all the circumstances, have thought it proper, so far from dreaming that any guilt could be imputed to this young man, to agree to a Report of a totally different character. And a society, called “The Anti-Slavery Society,” existing in this very town, failing to take up the prosecution, you have this very singular fact, that Sir George Stephen, though he put his name upon the back of the indictment, dare not put himself in the box for me to cross-examine. You have Sir George Stephen failing to sign his name to the notices, and you have at last the tardy and reluctant acknowledgment of his counsel that he is the prosecutor. I ask you, gentlemen, to recollect this: Lord John Russell and Lord Stanley were both of them members of the Committee; both were present when this matter was inquired into; before whom Captain Hill was examined, before whom Captain Denman was examined, and before whom another gentleman, Colonel Nichol, was likewise examined. That Committee put forth the large volume which I hold in my hand, and before them this young man voluntarily came, and was examined as to every part of this transaction; aye, and as to the conduct, and character, and dealings of his house, from the time it was first established. And do you believe, if this had been a proper subject for prosecution, that the members, the leading members of a government, the government of a kingdom which has spent twenty millions of the public money to put an end to the slave trade—do you think, if they had felt that this was a proper subject for prosecution, that it would have been left to Sir George Stephen to come forward with his own money, and with his own means—for what purposes I cannot conceive, they must be left to his own feelings, and I do not envy him his feelings—to be the prosecutor of an indictment, which, if it succeeds, must for ever crush and ruin a young man, with respect to whom I shall demonstrate there exists but at most that species of suspicion, which ought never to be cherished against one whose character is, as I shall prove this young man’s character at the bar to be, above all sort of suspicion—that suspicion, which, if it does exist, may be a fit reason for inquiry, but ought no more to be the ground for a prosecution for felony than it ought to be the ground for a conviction without any inquiry at all.
Gentlemen, what is the charge brought forward? Pedro de Zulueta, the young gentleman for whom I appear before you, is, I believe, the eldest son of his father: his father, now advanced in years, is the head of the house. He is a gentleman, who has filled the very highest offices in his own country, and who has been, I believe, at one time, the President of the Cortes in Spain, an office analogous to that of Speaker of the House of Commons in this country, and was member for the city of Cadiz as long as his commercial concerns required him to remain and discharge the duties of that situation. He is a gentleman, who has now reached a very advanced age without a shadow of imputation upon his character; who has been engaged during the whole of his life in commercial transactions of the largest and most important nature and extent, and who not only himself, but his father and grandfather before him, who for seventy years carried on an extensive trade in Spain, and at a time when not only Spain, but I grieve to say our own country, Britain, was engaged through her colonies in extensive slave trading, abstained from ever dealing or turning to their own account the value of a copper farthing in that trade; who, so far from that, when from some bankrupt estate some slaves became the property of the father, he immediately gave them their freedom—a number of slaves passed to him as a part of a bankrupt estate, as they might do at that time, he immediately manumitted them, and gave them their freedom—he it is, who having mainly conducted this transaction, he finds it in vain to look back to a long life, spent in honour, honesty, and integrity, a life spent in deeds of charity and kindness—he finds it in vain to look to the character of his house never before assailed by the breath of suspicion—he finds his own son indicted in this country—a country, under the protection of the laws of which he is living, and to which he has brought his commerce, and in which he and those belonging to him are spending the large fortunes they have gained in their trade; he finds, under the laws of this country, his son is indicted as a felon, for having signed his name to one or two documents—and I will prove to you that is all he has done in the course of a transaction which passed through their house as commission agents for the house of Martinez & Co., at the Havannah—and I will convince you, when I refer to the evidence before you, evidence which has been, I must say, most unfairly adduced, which has been perverted and brought before you in a way which I cannot commend, I will show you upon the evidence that that is all that can be charged upon this young man—that in the course of a transaction which passed through the house in which he is now a principal, but only since he has been of age has he been a member at all to entitle him to sign documents—he signed a letter, perfectly innocent in itself, and a charter-party, a regular mercantile transaction, the profit of which to the house was of the most trumpery amount—he did those two acts, in the absence of his father, the house here conducting the business for their agents—and for that he is brought to the bar of the Central Criminal Court, and you are asked to pass against him a verdict of guilty, fixing upon him the crime of felony, and all the dreadful consequences of that guilt, which by this indictment he is liable to.
Gentlemen, I must say, that a proceeding of this kind does no honour to those great and zealous efforts made for the total extinction of the slave trade by Britain and British means. If those, who sincerely desire to see that trade effaced, as we all trust in God it soon will be, from the surface of the earth; if they desire to see their efforts succeed, and if they desire to aid the great exertions of Britain for the destruction of the slave trade, let them not treat as felons those merchants in Great Britain or elsewhere, who may, without having any reason to suspect they are illegal, carry on trading concerns with the coast of Africa; let them try, by their cruizers, to stop the slave vessels and liberate the slaves on board; let them exert themselves to put an end to the slave trade wherever their arms or their efforts can be carried; but let them remember, it is not by force of arms it will be abolished—it is by civilisation, and the arts and commerce, the basis of civilisation, it alone can be put an end to. If you would lead to the total destruction of that trade, let it be indeed by vigilance, let it be by all the great efforts made by our ships abroad and our councils at home; but, above all things, seek to introduce commerce—for where there is commerce, there must in time be civilisation, intelligence, and moral improvement, and education, and progress in the arts, which are calculated to raise the character of any country—wherever there is commerce, there must be commercial people, there must be educated people, there must be persons to carry on the government, there must be courts of justice established, and persons to administer the law—that commerce will increase, and will lead to civilisation, and we can introduce all that is good in this world, and promote all the best objects in life—and then the slave trade will cease, not by force, but by civilisation. And I will show you, when I go through the evidence, if you will fairly consider it altogether in the way in which it ought to be brought before you, and in which it ought to be presented to your minds, I undertake to satisfy you that these gentlemen are not capable, and that there is no ground for imputing it to them, of lending their assistance to that odious traffic; and I say, that no Englishman, nor English house, has done more to prevent and destroy it than the house of Zulueta & Co., both in Spain and in this country.
Now, Gentlemen, let us see what the charge is. The charge is this:—That the prisoner at the bar employed and dispatched a vessel, and shipped certain goods, in order that the goods and vessel might be employed in the slave trade. Gentlemen, I wish that my learned friend, Mr. Serjeant Bompas, had been more explicit in his opening address. I think it would have been but fair if he had stated distinctly what he alleged to be the object of the party prosecuted. To say he has the general object of engaging in the slave trade is speaking most vaguely. Does he mean that the prisoner has dispatched this vessel, intending that slaves should be taken on board the vessel? Does he mean, that Pedro de Zulueta engaged in shipping the goods, in order that the goods might be bartered against slaves? or, does he mean, that he shipped the goods, in order that the goods might be sold for money, and with that money that slaves might be bought? Gentlemen, whatever might be the object, I think I shall satisfy you that Mr. Zulueta was perfectly innocent; that he had no such object, that he had no such intention, that he had no such idea: but it is hard for him, that in a matter so much affecting his happiness I should have to grope my way in the dark to find out what the charge is, and that while I am exhausting my strength and your patience in finding out the charge, it may turn out that something more was in the mind of the prosecutor, or in the mind of the person who framed the indictment, merely because Mr. Serjeant Bompas, acting under the instructions of Sir George Stephen, has not properly defined what he imputed to Mr. Zulueta. It is very easy to say to a British merchant, who purchases and ships for another house a quantity of goods, and sends them on board a vessel consigned to the coast of Africa, it is easy to say to him, upon some part of the coast of Africa the slave trade is carried on, and you, in some way or other, intended to promote it; it is easy to say that may be, but it seems to me, it ought to have been fully and distinctly alleged what was the object they meant to impute to him—whether it was to do that which my learned friend has thought fit to accuse him of.
But, let us see what the charge is. I must assume it to be this—that, in some way or other, Mr. Zulueta knew, that when he, as a member of the firm, took some part in dispatching the vessel, or in shipping the goods, that the vessel, or the goods, or both, were to be employed in the slave trade—by whom employed, whether by Messrs. Martinez & Co., at Cadiz, or the consignees, Rolo & Co., or Captain Jennings himself, my learned friend has found it to be convenient to withhold even from you—therefore, what the precise charge is I am seeking to find out, but I am utterly unable to ascertain. It may be, that they contend that the object was that Martinez & Co., who are supposed to have some agents at the Gallinas, intended to convert the goods directly into slaves, or into money to buy slaves; it may be, that the consignees of the goods are the parties to do that; it may be, as he says, that Captain Jennings was a slave trader on his own account, and that he was to do it: which of the three it is I do not know; but whichever it is—though it would make considerable difference in the legal form, because sending goods to be converted into money is no offence, though that money may be converted into slaves, although sending goods may be an offence—but I am not entering into that, for though there is a distinction in law, I make none in fact—I entirely, on behalf of the prisoner, disclaim the slightest notion or idea of giving the slightest countenance or aid, directly or indirectly, to the slave trade, in any shape or form that any man can suggest; and I say it would be a most uncharitable wresting and perverting of facts, which may be capable of two constructions from their ordinary and fair effect, to say that they throw a shade of suspicion upon any part of the conduct of the prisoner.
Gentlemen, I pray you to consider the real nature of the transaction, as it is to be collected from that to which my learned friend has been obliged to refer—and he could not make out his case without it—from that statement made by Mr. Zulueta himself voluntarily before the Committee. It is this, that this young man, born in Spain, but having from the high station of his father had a most excellent education, being of amiable character and intelligent, thought he might be of use to the house in England—there is a house in Cadiz, but the house we have to deal with is that in England—he comes here, becomes a member of the firm, and remains here; he speaks English a great deal better than his father, and in the transactions requiring more of speaking English he took a more prominent part: but the correspondence and the evidence in the case shows, that the orders given in the commercial transactions are entirely in the handwriting of the father almost; and it is a mere accident that the name of the son is put to documents not prepared by him, as I will show you he puts his signature to them in the ordinary course of business in the house. The house of Zulueta & Co. has transactions with most parts of the world, but is most largely engaged with Spain, and the Havannah, and several other places. With regard to Africa, the house has nothing to do with it—and I pray your attention to this point, I implore your attention to it, or you may misunderstand the evidence given by Captain Hill and Captain Denman—they had no more—Zulueta & Co., had no more to do with the trade to the coast of Africa than I have, or any of you I was going to say, I hope, you have, but if none of you, had. But it so happened, that trading to the amount of three or four hundred thousand pounds in the course of three or four years, or more largely still, with this house of Martinez & Co., that Martinez & Co., whose business was carried on at the Havannah and Cadiz, also had some dealings with various parts of the coast of Africa, amongst others at the Gallinas; and out of transactions to the amount of 200,000l. or 400,000l., there are transactions to the amount of 18,000l. or 20,000l. in ten years or more—call it twenty years—I believe it is ten years—to the amount of about 18,000l. or 20,000l., which consisted in this—not a trade to Africa, but this kind of dealing—Martinez & Co., who trade to the Havannah, to which Zulueta & Co. trade, also were in the habit of consigning cargoes of sugar, and other produce, from the Havannah to England; and having some dealings with the coast of Africa, they have upon some five or six occasions desired the house of Zulueta & Co., who live in England and carry on their business here, to furnish them with this trifling amount of British manufactures, and send them on board any vessel they may buy or engage for the purpose, to such part of the coast of Africa as they may direct. The house of Zulueta & Co. carrying on business here, from the immense extent of their transactions having a house at Liverpool, upon receiving an order to ship goods to the amount of a few hundred pounds, they order the goods through their Liverpool house, the great emporium of manufactures in that part of England, and they put them on board any ship directed by Martinez & Co.; they ship the goods in any shape or way as they may direct; and from the time the goods are shipped, they know no more of them, and have no more to do with the subsequent disposition of them, than any one of you I am addressing. It turns out, for so Captains Hill and Denman who have been upon the coast say, that the Gallinas has no produce to return for goods; they say that there is nothing but the slave trade there; that though the goods may be unshipped and landed, there is no return produce: but Messrs. Zulueta & Co., who had no trade with the Gallinas, who I will show you upon the evidence never until this transaction heard the name of any one of the three parties to whom this cargo was consigned, they sent the goods to the Gallinas as they would have done to the Havannah or to Gambia, to Madagascar or the East or West Indies, and troubled themselves no more about it as soon as the goods are shipped: because it is suggested that some parties concerned in these slave trading establishments may make an iniquitous use of these goods in the slave trade, they are to be told that this young man—(not attacking his father, whose ancient name and character for honour and integrity would protect him)—has committed a crime; they seize upon this unhappy young man; they say, because your house have sent goods to that place, ordered by your correspondents, you shall be seized as a felon and tried for a felony.
Now let us look at the evidence. I will take the evidence as it was given, and consider the evidence apart from the statement: take my statement as nothing, and take my learned friend’s statement as nothing; let us see what the case is, divested of speeches and speech-making, and those reasonings which I will show you have no application to the conduct of Mr. Zulueta.
There is the house of Zulueta & Co. many years established in England, they have correspondents abroad, the house of Martinez & Co. at Cadiz—and this young man writes a letter, in these terms, dated the 20th August, 1840: “In reply to your favour of yesterday, we have to say that we cannot exceed 500l. for the vessel in question, such as described in your letter, namely, that excepting the sails the other differences are trifling from the inventory; if you cannot therefore succeed at those limits, we must give up the purchase, and you will please act accordingly;” then it is addressed to Captain Jennings, Portsmouth. What is stated concerning that letter is true, that it is not written by this young man at all. I do not know whether the original letter was handed in, but you shall see it: my learned friend says, it was proved that it was written altogether by this young man himself to the captain.
Mr. Justice Maule. It was proved so in this way, “I believe it to be the writing of Pedro Zulueta.”
Mr. Kelly. Whether it was so or not it is quite immaterial, I need not say that the contents are perfectly innocent. It is clear, that before this time the house had employed Captain Jennings to treat for the purchase of this vessel. There was some demur about the price. This letter was written, in order, if possible, that the vessel might be obtained for the sum of 500l.; and in the way in which people bargain they tell them, that if they will not take that sum they will not buy it at all. That letter is written by Mr. Zulueta: I need not say that there is no felony in the member of a firm like Zulueta & Co. authorising Captain Jennings, or any other man, to offer 500l. for a vessel. Here the evidence with regard to the young man I am defending is a blank: it does not appear he interfered directly or indirectly in any way, or knew what was going on; but it appears that the vessel was ultimately purchased at that sum, dispatched to Liverpool, and the goods were loaded on board the vessel; and then the charter-party was made out, to which I will now call your attention, and which was signed by the prisoner Mr. Zulueta. Now you will see how my observations apply: it is in the usual form; it is printed, and the blanks, as you will see, are filled up, not in the handwriting of the prisoner nor any member of the firm, but in the ordinary course of business by the clerk whose duty it is to prepare the charter-parties; and it is signed, because it had to be signed. Mr. Pedro Zulueta was in the counting-house, and his father was out upon some other business, and Pedro Zulueta signed, “for Martinez & Co., of Havannah, Zulueta & Co.” These are the two papers in the handwriting of the prisoner—a letter to Captain Jennings, saying, offer 500l., if they will not take that no more will be given, and the charter-party by which the vessel is chartered from Captain Jennings to Martinez & Co., the house of Zulueta acting as agents, not buying the ship, not entering into the transaction as on their own account, but acting as agents for Messrs. Martinez—that is a paper partly written and partly printed, and the name is subscribed “for Martinez & Co., Havannah, Zulueta & Co.” Those are the only two documents in the handwriting of the prisoner: his evidence I will refer to more particularly by and bye. The evidence shows what I never denied, that the house of which he is a member are civilly responsible for all the house may do. That his house effected the purchase of a vessel at the time—that it was desirable that Captain Jennings should be the captain (and I will give you a reason for that presently)—and that the house caused goods to be shipped in it at Liverpool—and that from that time they heard no more of it, is not denied. It is perfectly clear, if the case rested there, it was merely this—that the house of Zulueta & Co., as agents for Martinez & Co., purchased the ship for Jennings, and that the purchaser made Martinez & Co. the mortgagees of the ship, so as to put them in possession of the property, but to leave Captain Jennings nominally the proprietor and captain; and then they shipped for their principals a quantity of merchandise, regularly passing through the Custom-house on board the vessel, and consigned to the coast of Africa. It is perfectly clear no sort of imputation can be thrown upon any one concerned in that transaction.
But, Gentlemen, let us see what are the circumstances upon which the prosecutor calls upon you to infer, not only that Zulueta & Co., and particularly the prisoner at the bar, purchased this vessel, and dispatched this vessel, and loaded the goods on board it, but that he did it not merely knowing, but for the very purpose, in the language of the indictment, “to accomplish the object of using them in the slave trade.” What is the evidence upon which they call upon you to infer that? First of all they do this, and I do pray your attention to this part of the case, because it is a point affecting, and vitally affecting, the safety of every manufacturer, every merchant, nay every tradesman in this country, who happens to deal in any goods, however lawful, but which may be shipped to the coast of Africa; they say this, you, young man, Pedro Zulueta, a member of this firm, you knew that these goods in this ship were to be used for the slave trade, and you dispatch the ship and goods that they may be used in the slave trade. Why, have you ever admitted you knew it? No, I have denied it, and have offered to deny it upon oath.—Have we proved you ever gave any secret instructions they should be used for that purpose? We give you notice that we call for your instructions, but before the Court and Jury we dare not call for them.—Did you receive any information from Martinez & Co. that they might be used for that purpose? No. We give you notice to produce all the letters from Martinez & Co., and his counsel comes forward and says—Here is every document, here is every account, every scrap of paper at all relating to this transaction,[15] and I offer you the oaths of every body in the counting-house, without examining them myself, that this is all that can be found. No, says the prosecutor, it suits us better to charge you with a felony, and call for documents which might or might not support the charge; but when you have got them here we will not read them before the Jury, we will not lay them before the Jury, but we will do this—in order that Sir George Stephen, sitting near Mr. Serjeant Bompas and instructing him from his own grossly perverted views of the facts and the truth, to misrepresent and to colour almost every material document to be given in evidence in the cause, in order to give them a reply, they say “you may produce them.” That is what they do. This, then, is a case in which they say we will call for your instructions to the captain, because we say, although there was nothing in your handwriting found in the vessel, except this innocent letter offering 500l. for the purchase of the ship, and the charter-party signed by the house, there were some secret instructions. We call for all the letters, we will not use one, but we leave you to prove there were none such. We say, you were informed by Martinez & Co. that they were to be so used, and we give you notice to produce the letters; we will not call for them, we leave it to you: and if we were to read twenty different letters, all the letters from Martinez & Co. to Zulueta & Co., you would have from Mr. Serjeant Bompas, with Sir George Stephen behind him suggesting—Oh, there were secret instructions behind! How do we know there was not a letter behind, which contained secret instructions? That is the way that a case for felony is to be conducted; and therefore I beseech you not to look at what my learned friend urges upon you, but look at the facts. The facts are, that this young man offered 500l. for the vessel, and that this young man signed the charter-party, and those facts he admitted before the Committee of the House of Commons; he admitted that this ancient and honourable house, without a stain upon its character, purchase the ship, and charter the ship, and ship the goods, as the agents of Martinez & Co., to the coast of Africa. Then, when they have to prove the guilty knowledge that this was done for the purpose of these goods being used in the slave trade, after going through this farce of calling for papers they dare not use, they say this—We cannot prove that this young man ever thought, or wrote, or sent, about the slave trade; we cannot prove he ever said a single word to Captain Jennings that he was to use the ship or goods in the slave trade; we cannot prove that their correspondents ever wrote or said a word to them upon the subject; but I will tell you what we will do, he was never at the Gallinas, but Captain Denman was at the Gallinas, Captain Hill was at the Gallinas, Colonel Nichol was at the Gallinas, and we will prove by them that the slave trade is carried on to a considerable extent there; we will prove through them, that there are such persons there as Rolo, Alvarez, and Ximenes; and we will prove that those three persons are notorious slave dealers; and we trust that the Jury will say, here are goods sent to the coast of Africa—and it is true, because goods are constantly sent there, British produce to the amount of millions is sent there, and forms a great part of our commerce, but it is sent to that part of the coast where these three honourable gentlemen will say that nothing but the slave trade is carried on—and it will then lie upon him to show that they were not intended to be so used.
[15] Pointing to a mass of books and papers on the table.
Now, Gentlemen, if Mr. Zulueta had known as much of the Gallinas as Captain Denman does, who has been cruizing about there since 1835, or as much as Captain Hill knows, who has been upon that coast for several years past, or as much as Colonel Nichol, who has been there twenty years; if he had ever been there or lived there to see the kind of commerce carried on, and to know that there is no lawful commerce at all, but that there is the slave trade only, I should say that you put a man living in England in a very peculiar situation, to which I will call your attention in a moment, but it would raise the question in your minds, whether he might not suspect that these goods might be sold for money, and the money applied in the purchase of slaves, or the slave trade be promoted by the transaction. But, Gentlemen, I beseech you to remember this; they have not proved this, and the contrary appears, that this young man—and I speak of the father as well—that neither he nor his father were ever on the coast of Africa. “Oh, but” says my learned friend, Mr. Serjeant Talfourd, in a question put on re-examination to Captain Denman, “could a person who had traded for twenty years to the Gallinas be ignorant that nothing but the slave trade was carried on there?” If it was so, if he had thought so, it is not by his inferences—whose honourable zeal in putting down the slave trade has carried him so far as to make him a defendant in two or three actions, which may come on to be tried in this country—however honourable his motives and feelings (and I admire the zeal he feels upon the subject, political as well as private zeal)—it is not what he knows which is to determine whether Mr. Zulueta is to be convicted of felony. But it is not that to which I was about to call your attention. If my learned friend, Mr. Serjeant Talfourd had reflected when he used that expression in the question he put, “Do you think that a person trading twenty years there could be ignorant of the nature of the trade carried on?”—he would have seen it was wholly inapplicable to the case of Messrs. Zulueta & Co. In the first place, this young man has not been a third part of twenty years in the house; in the next place, the house has not traded to the extent of 20s. to the Gallinas, they have never had any communication with it. Mr. Serjeant Bompas opened among many other things which he has left unproved, that he would show that was untrue, and that he had had dealings with them. If that was so, it would have been easy to do it; but they find he never had any dealing with the place; he had no letter or bill from the place, or any article or thing of any sort or kind from any person there, which could convey to his mind whether it was a slave trading place, or a place where a great deal of commerce was lawfully carried on—nothing of the kind. I pray your attention to what it is my learned friend has founded this observation upon. All that Zulueta & Co. have done, as you will see by the evidence before you, is, that they have received directions from their foreign correspondents to ship goods to the Gallinas, and have put those goods on board a vessel, and then dispatched that vessel, and shipped those goods for the Gallinas; and from that time forth they have heard no more of them. Now, I beg to ask you, their correspondence taking place with Martinez &. Co. at the Havannah or Cadiz, but having no correspondence with the Gallinas, unless their curiosity led them, as it did me this morning to look at the map or globe to find the place—and they looked in vain, unless they looked at a pretty large map, to see whether it was a river, or an island, or city, or what place it was—how should they know any thing about it? I agree we did not want Captain Denman’s evidence, for that they had shipped goods for twenty years, and traded there in the ordinary sense of the word, if they had had correspondents there and dealt on their own account with them, and sent them goods from time to time, and had goods in return, or written letters to them, and had letters in return, they might through them have obtained some information of the nature of the business carried on there. But, it is no such thing. What this young man said in his evidence before the Committee turns out to be true; if it had not been so, they had abundant means to contradict that evidence: and Sir George Stephen, whose zeal spares no expense, no effort, would have satisfied you that they had written letters to the Gallinas, and had sent goods there. All that appears is, that from time to time—the transactions being really a drop of water in the ocean of their great mercantile dealings—they have out of 400,000l. in ten or twenty years shipped goods to the amount of 22,000l., which have gone to the Gallinas. But how should they have known it was for the purposes of the slave trade? Suppose any one of you were a dealer in muskets (for they are some of the goods shipped on board this vessel) and that a person in Spain writes to you, saying, I want a thousand muskets for a place called Gallinas, on the coast of Africa—would you dream, if you prepared the muskets and sold them, and made out the proper papers and dispatched them according to the order—would you dream, that you were committing a felony? That is what it comes to.
Just see how the case stands—Captain Denman knows, and Captain Hill knows very well, that shipments to the Gallinas may be something suspicious, because they say, as far as their experience goes, there is no lawful trade there, and that they are all slave traders there; but how is any body in this kingdom who has never been there, and never corresponded with the place, to know that?
What is the next fact? Captain Hill proves—though it was with the greatest reluctance he ever gave an answer in favour of this young man whom he is endeavouring to send to Botany Bay—at last, he let out by accident that there are places, on the coast of Africa, to which British produce in large quantities is sent, where the trade is perfectly proper, and where goods lawfully are sent and disposed of; and that at many of those places there are persons, who trade largely, and to a very great extent in British produce, who also deal in slaves.
Here, again, I beseech you to turn your attention to the facts and forget the statement. You may be manufacturers of guns or gunpowder, or commission-agents living in the country, who for the purpose of shipment purchase those goods; in either case a party comes and says, I want a thousand muskets and two tons of gunpowder to be shipped to a certain place on the coast of Africa. I ask you—are you first to consult the map to ascertain the place, and having ascertained where it is, are you to go to somebody you may hear of—Captain Hill or Captain Denman—and inquire, whether they have been upon the coast of Africa, and can tell you the character of the trade carried on there? Are you next, the person being a Spaniard or Portuguese, to inquire whether they ever deal in slaves, and if you find they do, are you to say, I will execute no order you give me? That would annihilate two-thirds of the commerce of Great Britain, and would prevent the most useful transactions of commerce which can occur upon the coast of Africa. It is, therefore, I say, in a charge of this momentous character, it is not to be determined upon suspicion. You are not to hang or transport a man upon vague suspicion; you must show that the crime has been committed; you must have before you direct evidence to prove that he must have known—not that he might have known—by inquiry, if it had been duly answered, and in the mean time the orders would be lost—not that he might have learnt, or that the result of the inquiry might be that the goods might by possibility be unlawfully employed—you must have direct evidence that they were shipped for that purpose. The statute does not say, that every one who ships goods to a slave colony shall be guilty of slave dealing; the Act does not say, that whoever ships goods to a place where the slave trade is principally carried on shall be guilty of slave dealing; the Act does not say, that any body who shall ship goods without taking care that they shall not be employed in slave dealing shall be guilty of felony; the Act does not say, that any one who ships goods which may be employed in the slave trade shall be guilty of felony—God forbid that it should say that!—but the Act says, if a man ships goods for that object, if he ships goods with the intent—which as far as in him lies he seeks to carry into effect, that they may be used in the slave trade—that is a felony. Where, in God’s name, is there a particle or scintilla of evidence to that effect here? Where Captain Denman tells you it is a well-known slave trading colony, and that he knew it before he went there? Did you know it? I apprehend, if my learned friend knew it before he was instructed in this case, he knows geography, as he does every thing else, much better than I do. My learned friend says, you are not to shut your eyes to what you are doing. No; I agree if a man commits a crime, or does a mischief, he is not to shut his eyes to the consequences of it. I deny, once for all—and I appeal to the learned Judges whether I am not correctly stating the effect of the law—whether a man, who has no intention to do an unlawful act in the shipment of goods, is bound to make any inquiry as to what is to be done with goods, which, in obedience to the orders of a foreign correspondent, he ships to any place on the face of the earth. He is not bound to make inquiries; if he was, it would throw impediments in the way of commerce more injurious than the slave trade itself in any part of the world. Again, they speak of Messrs. Martinez being slave traders, and they speak of the admission that appears upon the evidence of Mr. Zulueta, that he knew that Martinez & Co. had been engaged in the slave trade. I will show you, when I come to refer to this evidence, which is all-important in this case, that there is nothing of the kind—he speaks of the knowledge he had; he gave his evidence in 1842, and you will find, when you look on a little further, he had learnt it since the transactions in 1840.
Now, suppose he did know it—suppose a commission-agent knows that a foreign correspondent of his house is extensively engaged in the slave trade—he knows, at the same time, he is extensively engaged in a lawful trade in sugar, tobacco, and other commodities—I ask you, whether if that foreign correspondent, by letter, desires him to freight a ship with a quantity of goods, and he does so, he is to be treated as a felon? whether, because a trader in both ways—a trader lawful and unlawful—may use his goods unlawfully, and the shipper knows it and cannot prevent it, he is to be treated as a felon or wrong doer? I deny it: if it were so, the first mercantile houses in the country would consist of none but felons. It would be in vain to suggest houses—though one rose before my mind, whose extent of transactions is equalled only by the honour and integrity of their character, that house trading largely as it does with the Havannah and the Brazils, where all the extensive merchants are slave dealers, that house must sacrifice two-thirds of its trade—and all that loss must accrue to Great Britain, because that trade may enable those who carry it on to carry on also a trade in slaves. It is quite intelligible, that that was the very object of the inquiry before the Committee, where Mr. Zulueta, Captain Hill, and Captain Denman, and a score of other persons were examined before the Colonial Secretaries under both governments, and some of the most practical men of the present day—it was for the purpose of determining and reporting to the House, whether it would be desirable to extend the criminal law of the country, and prohibit the trade altogether with places where the slave trade was carried on, or with persons notoriously carrying it on. Nobody ever dreamt, but Sir George Stephen, that it was illegal to trade with a slave dealing place, or a notorious slave dealer; it is only illegal where you know the trade you carry on is to promote the slave trade, and you know that to be the object. That was one of the objects of the Committee, to ascertain whether it was desirable to prevent the trading with slave dealers, or slave trading places. I may not regularly refer to their opinion; but they made a Report in 1842, and no law is passed at all affecting transactions of that nature—the only Act is that, which, for another purpose, I called my Lord’s attention to, and which made that illegal, not illegal before, namely, the trading by British subjects in foreign ports—not making it criminal to trade with slave traders or slave trading places. Then let us see the result. You are called upon, where the shipment is innocent, and the employment of the ship is innocent, you are called upon to destroy this man, because he has put his name to one or two innocent documents, and because they say it was so notoriously a slave trading place that he must have known that they were to be so used. My answer is in a single sentence—he knew nothing of the kind; they have not proved it; they have proved that Captain Hill, and Captain Denman, and others, conversant with the spot, knew it; they have not proved that Mr. Zulueta knew it—the evidence is entirely a blank upon the subject. If he thought of it at all, and I think that a man is bound to inquire about the matter, he would probably think this—there are a great number of houses in the city of London executing large commissions for the African trade, and a great deal of British commerce goes to the coast of Africa is lawfully disposed of, and promotes the civilisation of Africa; and I have every right to suppose that this goes for a lawful purpose; if that is not so, it must be shown to be for an unlawful purpose. If that is not fair in the mouth of Mr. Zulueta’s house, it is not fair in the mouth of any firm trading in that way with the coast of Africa; and unless it had been shown that Mr. Zulueta himself was personally informed of, or knew, the character of this place, what is proved by Captain Denman or Captain Hill has nothing to do with the question—so much for that part of the proof, from which you are called upon to infer that the prisoner shipped these goods to accomplish this wicked object, because it is proved the slave trade was carried on there.
Now, Gentlemen, let me say one word more of Captain Denman: he does not show, in the correct sense of the words, that the slave trade is extensively carried on there; he may be right in saying there is no produce there; but is there no mode of receiving goods and selling them for money, though no goods are exported? There are various towns or villages, one of nine hundred inhabitants, and others of various numbers, and native chiefs also; there are also Europeans, principally Spaniards—I should like to know, whether the native chiefs, and the Spanish population, and the nine hundred, the population of Tiendo, do not lawfully, for pieces of money or doubloons, buy British produce lawfully? It may be said, that they can only get this money by the slave trade; that is, by having previously dealt in slaves; but where is that to stop? If you are to trace the money from hand to hand, in order to ascertain whether, since a bank note was made or stamped, or the money coined, it has not been the medium of some illegal transaction, there is an end to all commerce. It may be, that these men, Rolo and Pedro Blanco, may have sold a thousand slaves for dollars, and may have paid a debt to Rolo, and with that Rolo may have paid somebody else, who may have bought the goods of Mr. Zulueta—I wish to know, whether Mr. Zulueta for that is to be accused of dealing in slaves, or shipping goods to dealers in slaves? There is nothing of the kind, as far as regards that part of the evidence, relating to the character of the place, or as relating to the character of the parties there. My answer to that is, that, however well known to Captain Denman and Captain Hill, it was unknown to Pedro de Zulueta; that he neither knew the place nor the persons, but that there was such a place to which his house had, without a suspicion, shipped considerable quantities of goods for their foreign correspondents—and it would be hard and cruel to say, that because other people possess a knowledge that he does not, he is to be charged as a felon—because he did not know what other parties, who had passed the latter part of their lives upon the spot, knew.
But, Gentlemen, a great deal has been said upon the mode in which this was to be carried into effect; and they say, because this vessel was bought really by Martinez & Co., and with their money—but Captain Jennings was made the captain, and Captain Jennings was made the apparent owner; therefore, that is a mark of suspicion, that is a concealment, that is putting a false colour upon the transaction—and therefore you are to infer that the transaction was with some guilty intent with respect to the slave trade. Upon that, in the first instance, I would say, this is not an indictment against Mr. Zulueta for putting an English captain on board a foreign ship, and treating it as an English ship—such a proceeding is not, that I am aware of, contrary to the law at all; and it can only be important in this case, if the nature of the transaction is such as necessarily to lead you to infer that the object of the transaction was connected with the slave trade.
Now, let me try that in all its parts; let us see if there is any thing in the mode in which the transaction was carried into effect, which ought fairly to lead a Jury to infer that the object in sending the vessel to Africa was that it should be engaged in the slave trade. First, as to the English captain—I had some difficulty in getting the facts out—it is always desirable, when the Jury have some experience in the matter, for the ends of justice—I hope you may be some of you familiar with Spanish maritime transactions: but we have the notary of the Spanish consulate, before whom charter-parties and other maritime documents come, and we have had the judgment of a naval officer upon the spot, and their evidence goes to show, that by the maritime laws of Spain, a Spanish vessel cannot be commanded by an English captain. Then, if Messrs. Martinez & Co. wished to ship these goods to the coast of Africa from England, and they wished at the same time to employ Captain Jennings as the captain, how are they to do it, except by giving an English name to the vessel, putting it under English colours, and making Captain Jennings the apparent owner? And, Gentlemen, is that to be wondered at? Is the character of a British sailor so low, that there is any thing upon which you are to suspect a man of felony, because one of his foreign correspondents prefers that a vessel he is going to freight to Africa should be commanded by an Englishman and not a Spaniard? You will find, from the evidence, that Captain Jennings had been more than once employed by Martinez & Co.—there is no doubt he is a man of considerable experience; he is a man of considerable courage, as all English sailors are—and explained in that way, what more natural than that Martinez & Co., hearing he was in England, should wish that a man they could trust should be employed in bringing out a cargo of goods to Africa, or wherever it was? Therefore it was he would employ Captain Jennings. How was he to do it? If the vessel was their own, it must sail under the Spanish flag, it would be a Spanish vessel, and could not be commanded by an English captain; so, to obtain that object, they employed Captain Jennings, whom they thought a trustworthy person—and in order to employ him, he is obliged to make the vessel appear an English vessel, and make him appear as the owner of the vessel—and this arrangement is accordingly made. And, Gentlemen, let me observe, though it was not given in evidence—but I will not stand upon technical points, I am dealing with the character of a house as high as any in Britain; I believe their Lordships, after some argument, excluded the bill of lading, in which the name of Captain Jennings appeared as the shipper—I do not know how it is—suppose he appeared—
Mr. Justice Maule. He appeared so in the cockets.
Mr. Kelly. I do most earnestly hope that some of you have sufficient experience of the mode in which business is conducted, with respect to ships, to know, that this is not an unusual circumstance. Just consider the object of the voyage: these goods were to be taken to the Gallinas, and they were consigned to those persons whose names you have heard. You have heard that slave trading is carried on there, as it is along the whole coast—that is known to Martinez & Co.—they have a great deal of trade there, and no doubt they would know it; they would know very well that the seas swarmed with British cruizers, for the purpose of interrupting and preventing the slave trade—what more natural? If their correspondents should happen not to be upon the spot at the time the goods arrived, so that they could not be delivered, or that there should be a blockade, and the ship could not enter with the goods shipped by Martinez & Co., the captain must sail back to England or to Cadiz, and get authority from Martinez to alter the destination of the goods; if, on the contrary, they were shipped in the name of Captain Jennings, if he found a blockade, or the correspondents of Messrs. Martinez were not there, or there was any opposition to his communications with the shore, he would have the complete disposal of the goods; he might take them to other parts of the coast of Africa, or any other part of the world, or deal with them as he pleased—and the whole mystery is explained. Every body, who knows any thing of these commercial transactions, knows that a supercargo is sent out with goods, and the shipment is most frequently in the name of the supercargo; and it is for that reason, that in case when the goods arrive at the place to which they are consigned, if there is any difficulty, or any thing which requires the control or disposition of the owner, the supercargo is the party to act, and he can only do that when the shipment is in his name. Here there is a supercargo, or somebody they had confidence in, Captain Jennings, and accordingly the shipment is made in the name of Jennings, in order, in a case of difficulty, that he may exercise a control over the goods. And so far from there being any thing illegal in it, so far from there being any thing unusual in the transaction—because Captain Jennings was made the master, the apparent owner of the vessel, and the person in whose name the goods were shipped—it is the constant custom. If Messrs. Martinez wished to send these goods to the coast of Africa, and if, by reason of any blockade, it would be necessary to give them another destination, they wished to have the benefit of an English captain, Captain Jennings—and by taking the course they did, of making out the charter-party from Captain Jennings to Martinez & Co., and at the same time shipping the goods in his own name, retaining a share of the superintendence as the real owner throughout the voyage, they accomplished that. To tell me, because that is done, which is a matter of constant custom, the good sense of which strikes one at the first sight—for my learned friend to rise and say, this is a concealment, and you are to condemn this young man to transportation—is perfectly monstrous. But I will tell you what the prosecutor ought to have done—and what I should have expected from the experience of my learned friend, who has called Sir George Stephen the public prosecutor—if he meant to say, that a charter-party in this form was an illegal and unmercantile act, he ought to have called persons engaged in the trade, parties engaged in shipments of the same description, or any other foreign trade, to prove that this was an illegal, and consequently an unusual transaction. He has left that in blank. I make the same observation as to the nature of the trade: how is it—when you are called upon here to denounce this young man as a felon, because it is supposed that slave trading was carried on at this place, the Gallinas, and that any body engaged in trade to that part of the world must have known that slave trading was carried on there—how is it, that out of the scores, to say the least, of highly respectable, intelligent, and experienced merchants, carrying on trade in this city, not one is called before you—not a merchant, not a shipper, not an individual is called to speak to any part of this transaction? You are to take Mr. Serjeant Bompas’s statement for every thing—whatever Sir George Stephen instructs him to say in this case, unless you have experience in it yourself, you are to take every thing as proof. I say it became the public prosecutor to call merchants, acquainted with the coast of Africa, to give a fair mercantile character to the transaction; they have not done so; and I protest against the doctrine, that any man is to be treated as guilty, and denounced as tainted with crime, not upon any proof that the character of the transaction is contrary to mercantile usage, but upon the statement of counsel, unsupported by evidence, and more particularly where that evidence is so completely within the power of the prosecutor.
Gentlemen, let me make another observation upon this point—I fear that the length to which this case has been drawn may weary you, and my address more so than any other part of the case; but, for mercy’s sake, consider—
Foreman of the Jury. We are quite glad to hear all you have to say.
Mr. Kelly. I thank you, Gentlemen. What would be my feelings, if any thing adverse was to happen to this young man, from my omitting to say what occurred to me as important? It is said by Mr. Serjeant Bompas, but not proved, that this was done under concealment: they have not called man or boy from Liverpool to prove that any part of the transaction was unusual. I appeal to any man, who knows any thing of the nature of shipments, whether it is possible that this cargo could have been shipped without clerks and shipping agents being employed, and without the cargo and ship undergoing the inspection of the Custom-house officers. All that has been done, and my learned friend and Sir George Stephen know that that has been done; and I believe, in his opening speech, he alluded to evidence from Liverpool; but not one witness has been called. You will see the effect of that in another part of the transaction to which I have not arrived; but when Mr. Serjeant Bompas tells you, that the employment of Mr. Jennings, as captain and owner, and shipping the goods in his own name, was done for the purpose of concealment, I say it is idle; and it is an insult to the understanding of any man to say there was any concealment. Messrs. Zulueta employ Captain Jennings—he employs other people—you heard that that was the mode in which the business was conducted—the Russian consul and Mr. Emanuel are not Zulueta & Co.—it appears that the transaction could not have been conducted but by the house of Zulueta—and yet my learned friend contents himself by saying, that this was secretly done, though he has not called one witness to prove it.
Gentlemen, I was upon the point, that the employment of Captain Jennings, and the making it appear that Captain Jennings was the owner, was a circumstance of concealment. If it was, I have told you the reasons humbly occurring to my own mind for thinking it was not; but suppose it was concealed—concealment, which would facilitate the carrying on the slave trade. Now, Gentlemen, I pray your attention to this question—Was the putting this ship under British colours, and under the command of a British captain, calculated at all to enable it to carry on the slave trade? That is the question. If it was, I clearly admit—though God forbid a man should be convicted upon it!—that it is a circumstance that may require some consideration in your minds; but if I demonstrate to you, that for all the objects of the slave trade, the employment of a British captain, and the employment of British colours, was fatal to it, and rendered discovery, and forfeiture, and punishment, almost inevitable, what becomes of the statement that all this was done clandestinely to facilitate the slave trade? Recollect the account of the trade given by Captain Denman. If it be a foreign vessel, a Portuguese or Spanish, which engages in the slave trade, there are very great impediments and very great difficulties in interrupting it, in searching and in bringing the transaction to light, or the perpetrators to justice, investigating the matter judicially, and finally causing the vessel and goods to be condemned. Our newspapers are filled with discussions about the right of search. Whereas, Captain Denman could, without a moment’s pause, without any obstruction, enter upon any English vessel, and seize the English captain, and search the vessel from top to bottom—while, in an American vessel, and many other vessels, he might be met by obstruction, and it might be the cause of a war. It is true, under some treaties, it may be done; but it is not so as to Russia, because this vessel ultimately, according to my learned friend, defeated justice, and was given up to the Russian government. Where a vessel, therefore, is under foreign colours, there are many difficulties in searching, and if suspicious circumstances appear, in bringing the vessel, if I may so speak, to justice. What does Captain Denman say? “If it is an American vessel, I could not search at all unless by main force, at the peril of a war; if a Russian, it is the same thing; if a Spanish or French vessel, then, under the treaty, a search may take place.” But, remember the mode of searching: if he saw an English vessel, the English captain would feel that of necessity he must, unless he meant to be condemned, tender his vessel, and all in it, to the investigation of a British naval officer; and if the vessel has any thing suspicious about it, you may prosecute it in the British Vice-Admiralty Court, in any of the colonies throughout the world; and, if condemned, as it may be, by British law, by British officers of justice; whereas, if it be a Spanish or Russian vessel, or a Portuguese, or of any other country, there are all sorts of difficulties and formalities before a search can take place; and if any thing suspicious is found, even Captain Hill, with all his furious zeal, would pause before he seized a foreign vessel. Again, supposing there are suspicious appearances, and the officer determines to try the question, it is tried not in the British Vice Admiralty Court—not in any British court at all—but before a Mixed Commission, composed of British, Spanish, and, perhaps, the subjects of other nations, surrounded with all these difficulties, and, I grieve to say, all that corruption which taints the administration of justice in almost every other country but this.
Now, Mr. Serjeant Bompas says—Sacrifice this young man, and condemn him as a felon. Why? Because, the more easily to carry on the slave trade, he fitted out a vessel—not as a Spaniard, with a Spanish crew and Spanish colours, but with English colours, an English captain, and an English crew, which Captain Denman, Captain Hill, or any other captain might search and condemn. Now, I am the humble and inefficient advocate of this young man, and the matter may occur to my mind erroneously; I may take an erroneous view, from the zeal I feel in the case, in presenting it before you, in the terms in which his innocence will ultimately appear; but, unless I grievously deceive myself, that argument admits of no answer, as Captain Denman said there are difficulties in the one case and none in the other—a trial by a British Court in the one case, and a Mixed Commission in the other; that there are great impediments where it is a foreign vessel, and none in the other. And has the prosecutor a right to call upon you to come to a conclusion that this young man is guilty of felony, because he fitted out a vessel with English colours, and an English captain, the more easily to carry on the slave trade? You will have to answer that question, if you think the slave trade could be more easily carried on by an English captain and an English crew. You have heard of the mutiny before they reached Cadiz; if you think an English crew were used, and English colours hoisted, the more safely to carry on the trade, it must be for some reason that does not occur to my mind, and I trust in God it will not occur to yours.
Now, Gentlemen, we come to the next point. They say—Though true it is, that this vessel was not employed in the slave trade, there is the most direct evidence that the man who fitted out the vessel meant to employ it in the slave trade, and really employed it with that object. If you cannot show the orders given by him to the captain so to employ it, the next thing would be to show it was so employed. If this ship had sailed from England to the Gallinas and discharged its cargo, and had taken in a number of slaves; or if it had bartered its cargo against a number of slaves; if that had been done, unless you can show it was done by Mr. Zulueta’s orders, he is not responsible: you may challenge the captain, and you might say, whether Mr. Zulueta intended it or not, it was so used: but there is no such evidence. Captain Hill, with his zeal to discharge his duty and to prevent slave trading, took time by the forelock, and seized the vessel in the hands of the captain before it reached the shore, and you have therefore no means of drawing inferences of what was intended by what was done. But they endeavour to make up for that in this way: they say, we will show that the vessel was originally built for the slave trade; and we will show that, while it was in the hands of Mr. Zulueta, or while Captain Jennings had it under his hands, it had fittings added, or articles furnished, calculated to assist in the slave trade. And I must say, upon this part of the case, it grieves me to refer to the mode in which it has been conducted in terms of reprobation; but I should ill discharge my duty if I did not say, that the mode in which the evidence was laid before you was unworthy the high reputation and the honourable character of my learned friend. I pray you to remember what it is has been proved upon this occasion. He calls a witness from Portsmouth, or two or three; and, as Mr. Clarkson, and my other learned friend, obtained from them on cross-examination they had been lately subpœnaed, the prisoner could not be prepared by any possibility for their testimony; and what do they prove? They prove, that on board this vessel, while Captain Jennings was in command of it, they had seen, I do not know how many, water-casks for slave trading; that they had seen shackles and bolts, and all the muniments necessary to carry on the slave trade. Now, I ask you, is that fair? Is that just? The prisoner is charged, not with having thrown away those things, and destroyed them, and fitted up a vessel, which, for aught he knew, might be used in the slave trade, or might be for perfectly lawful purposes; but he is charged with having dispatched it from Liverpool for the purposes of the slave trade; and, in order to prove that, the prosecutor thinks it right to give in evidence what was done at Portsmouth with these shackles and water-casks which were on board the vessel, and there he leaves the case. I cannot trust myself to speak of that mode of giving evidence. Gentlemen, the way in which they ought to have convinced you there was any thing on board this vessel calculated to carry on the trade, was to show the condition of the vessel at the time she left the port of Liverpool. There all the control of the house of Zulueta & Co. finished; the charter-party was made out, the goods were put on board, and the ship, on the 8th of November, 1840, sailed from Liverpool; then, if this young man is a felon, the felony was completed. What was the condition of the ship then? Had it then the water-casks for the nourishment of the slaves? Had it shackles and other instruments of torture, or for the conveyance of the slaves from one part of the world to the other? Gentlemen, that was the time; that was the place to show it: and it could not be by inadvertence it was omitted. Why, Captain Hill, their witness, who would not drop a single syllable, who could not bring himself to say any thing favourable to this young man (not from any improper motive, he will not understand me to say), that even Captain Hill was obliged to say—“When I seized the vessel, where the slave trade was to be carried on, it was not fitted up for the slave trade;” and one of you gentlemen of the Jury—and from the bottom of my heart I thanked you—put the question in another form through my Lord, and the answer was—“No; at the time the vessel was seized it was not fitted up for the slave trade.” So that you have this fact, that when it left Liverpool it was not fitted up for the slave trade, and had not the means on board to be so fitted up, and when on the coast of Africa it was not so fitted up; but, from their own witnesses knowing that, they call other witnesses to raise a suspicion in your minds that it was secretly prepared for the slave trade, because there were water-casks and shackles on board. And remember the evidence of the cabin-boy: they had the choice of the whole crew, and no one can say that the crew would be favourable to Mr. Zulueta, the owner, or his house; they were discharged as mutineers: they had their choice of the whole crew, and no expense, and no exertions have been spared, and yet they dare not call one of the crew to say what Captain Jennings stated, or what his object was; they called the cabin-boy, who says, “I know nothing of the loading of the vessel.”
There is a person to be tried for a felony in fitting out a vessel perfectly lawfully, but for the slave trade, and they seek to show that it was fitted up for the slave trade: they do not show it at the only time it was material to show it, but they seek to ruin and destroy this unfortunate young man, by giving evidence of its state at Portsmouth, when we have from this boy the damning fact for the integrity of their case, that though the water-vessels were changed in their form, which was to make you think that they were sent in a disguised form, they were put on shore at Liverpool, and not put back again. If there had been an inch or a scrap of old iron, or a nail, the ship was in the possession of Captain Hill, and those who acted under him, as long as he thought fit to keep it. It was put into the Vice-Admiralty Court; it was open to the witnesses for the prosecution: I have no doubt they searched it from end to end, and from top to bottom, and every crevice and cranny, and in no place was a scrap of rusty iron found applicable to the slave trade; and yet you are to be told by Mr. Serjeant Bompas, that he will prove it was adapted for the slave trade, when his own instructions had already told him that they gave a false appearance to the case, and the true appearance of the case was entirely left out of consideration. However, Gentlemen, I thank God, whatever may be the consequence, and however terrible to my own feelings as counsel for the prisoner, I had no hand—God forbid!—in such a prosecution.
Gentlemen, it is not only in the mode and to the extent I have pointed out to you, that the evidence has been sought to be perverted—and if there had been a case, and facts to be proved from the condition of the vessel, it is only from the evidence they have submitted to you that it can appear—Captain Hill seized the vessel and cargo; he had the full control of it; every species of information, every scrap of paper on board is in their power, and every thing that could be given in evidence before you has been brought before you.
Gentlemen, I must observe that I am not counsel for Captain Jennings. Captain Jennings, for aught I know, though he is an Englishman, and there is no charge against him, may have been in collusion with Martinez & Co. I am not responsible for his acts. I thought there had been some refusal to give up the papers, but Captain Hill negatived that altogether; he did not say there was any opposition; the vessel did not sail away from him, on the contrary, it sailed up to him. I do not know how that was. He asked for papers and they were given up to him—he made some request which was refused, but as to the running away, or concealment, nothing of the kind was practised; but you have here a felon, in the situation of a partner in the house of Zulueta & Co., trading to the amount of millions, trading with the house of Martinez & Co. to an immense amount in sugar and tobacco, and all sorts of goods passing between Britain and its Colonies, and a little trading upon commission in the last fifteen years, in which the commission put into the pocket of Zulueta & Co., would not pay a day’s salary to their clerks in their office, and you have a charge of felony for what this young man has done as it appears in the evidence to which I have called your attention. To talk of its being a concealment to use an English captain and an English vessel, when it would have insured a prosecution—when it would have insured discovery—when it would have insured punishment—is absurd. They say, here was something in the nature of the vessel, and to enable you to arrive at the same conclusion they prove her condition at Portsmouth, which was altered before the voyage was embarked upon, and they do not prove the condition of the vessel at the only time important for you to inquire into.
Gentlemen, Captain Hill said it would be very easy when the vessel arrived at Gallinas to get the fittings up there; that it would be easy for the factor there, when he expected the vessel, to get them ready. No doubt it would be very easy for a man to get a gun, and load it with powder and ball, and so shoot the Queen. But, good God! are we in cases of felony not to look for evidence, not to look for facts, but to suppose a felony, because it is physically possible that somebody may do something to put this ship into a condition that may be unlawful? So I might say of Captain Hill, that when he went with one of Her Majesty’s ships upon the coast, he was disposed to assist in the slave trade instead of destroying it; he might have harboured the slaves in his vessel, or turned it into a slave establishment, or any thing else. But we are dealing with something more than the life of this young man. You are not to look at what a man 4000 miles off did, but what this man did. What he has done he is responsible for, and he is ready to answer here—he is ready to answer at a higher tribunal; but, in the name of that Judge before whom we must all stand, I implore you, do not visit him with suppositions of what other men might have done, instead of what he is proved to have done in this transaction.
Gentlemen, the evidence in the cause would have gone no further than I have stated but from the circumstance—a most extraordinary one, and unprecedented as far as my experience goes in criminal cases—of a great body of evidence being produced, that being neither more nor less than the voluntary, unsought, and unasked testimony of the criminal himself in his evidence given before the Committee of the House of Commons; and it is that to which I have finally to call your attention. I have stated to you, that the house of Zulueta & Co. had enjoyed the highest reputation from the time of their establishment, nearly seventy years ago, until the year 1842. That Committee was appointed, and is declared to have been assembled for the purpose of inquiring into the mode in which the slave trade at various places on the coast of Africa was effected by British commerce and by the employment of British capital. It was suggested, and perhaps truly suggested, that from various British houses, dealing largely in British manufactures, and exporting them as principals, or as agents to the order of Spanish houses, or Portuguese houses, or American houses, particularly in the states of South America—that by reason of those exports, commerce was introduced, and great sums of money procured, which money, being employed in the slave trade, thereby British capital and commerce tended to support the slave trade. The object of the Committee was to determine to what extent this particular allegation was true, and if true, whether it could be remedied by any alteration in the law. It is not necessary to notice the result of their deliberations; but it is important to observe, that upon the Committee were two most zealous men, Lord Stanley and Lord John Russell, neither of whom could have seen enough in the conduct of this young man to justify his prosecution. And this Committee seem to have thought whatever evil might arise in fostering or in facilitating the slave trade, directly or indirectly, by British capital and commerce, that they would too fatally interfere with the commerce and civilization of the Africans themselves, from which, and not the force of arms, the destruction of slavery must ensue, if further restrictions were placed upon general commerce of the country; and no further restrictions have been placed. But in the course of the investigation before this Committee, and at a very late period of their sittings, because it is after this part of this immense volume[16] had been given the house of Zulueta & Co. learnt that some evidence had been given ex parte and in their absence, which they thought threw some reflection upon the honour and integrity of their house. They felt their honour involved, and they felt themselves entirely innocent of the charge—they felt that the house of Zulueta & Co., both here and abroad, so far from assisting in the slave trade, had cautiously desisted from it, and made great sacrifices, even when both nations were engaged in it; and one of their firm came forward to give such explanation as he thought necessary to clear the house, if possible, from the imputation cast upon it—not because he knew more of it than any other member of the firm, that will appear from the evidence; but, because he spoke English more fluently than his father, he came forward and gave the evidence which is before you. And, Gentlemen, but for that evidence the whole case would have been, that the house of Zulueta & Co. shipped these goods and dispatched this vessel, and in the course of their proceedings this letter and charter-party were signed by the prisoner at the bar. But they say, what is wanting, that evidence will complete, and out of his own mouth they can clearly show he has betrayed himself into a most awful predicament—that when he went before this Committee voluntarily, he has admitted himself to be a felon. But, thank God, that is for you to judge of. It is for you, a Jury of British men, not dealing with a fellow-countryman, but where you would be more tender than with any of your own countrymen—it is you, and I thank God for it, who are to decide whether this young man has admitted himself to be a felon: if he has, he must be punished for it; but he has given a fair statement from beginning to end, and if there was any thing false, the prosecutor could prove it false by the clearest evidence; and I can, with that confidence with which I should appeal to Heaven for truth and justice, appeal to you for a verdict of acquittal of the prisoner.
[16] Pointing to a large folio volume in his hand, “Parliamentary Report on the West Coast of Africa,” from which Mr. Kelly read the quotations contained in the subsequent parts of his speech.
Gentlemen, he appears before the Committee upon the 22nd of July, 1842, and the Chairman says to him, “You have seen some statements that have been made to this Committee upon the subject of a transaction in which your house was engaged; have you any observations to offer upon it?—I received from the Clerk of the Committee a letter.” He accounts for having heard of it, and then says, “I would beg, first of all, to refer to the letter which I had the honour to address to the Chairman.” That letter ought to have been brought before you—it is not—we have it not, and have no control over it. The prosecutor could have produced it, because, with the permission of the House, by which he has produced this evidence, he might have produced that letter, or had a copy of it. He says, “My reason for wishing to be examined before this Committee was, that the statements contained in the evidence which I have mentioned are all of them more or less incorrect, some of them totally so. I will begin by stating what has been the nature of our, I will not say trade, for we have not had a trade ourselves, but of our connexion with the shipment of goods to the coast of Africa.” I pray your attention to this—it is not, as my learned friend Mr. Serjeant Talfourd seems to assume in a question put to Captain Denman, it is not that this house has ever traded, in the proper sense of the word, to the coast of Africa; they never send goods there on their own account, and they never received goods from there; they never had any transaction or correspondence with any person at the Gallinas, or any where else upon the coast of Africa; all their transactions were confined to the execution of foreign orders from the Havannah, and other parts of the world; all that they did being to dispatch the vessels and ship the goods; and from the moment of shipping the goods in England, from that moment their interference entirely ceased. He says, “I will begin by stating what has been the nature of our, I will not say trade, for we have not had a trade ourselves, but of our connexion with the shipment of goods to the coast of Africa. We have been established as merchants for upwards of 70 years in Spain, for nearly 20 years in this country, and we have had connexions to a large extent in Spain, and in the Havannah, and in South America, and in several other places; among them we have had connexions, or commercial intercourse, with the house of Pedro Martinez & Co. of the Havannah, and with Blanco and Cavallo of Havannah. With them we have carried on a regular business in consignments of sugars and of cochineal, which they have made to us.” I pray you to put this case—Suppose the house of Zulueta & Co. received a consignment of cochineal and sugars from the house of Martinez, the value of the consignment being 5,000l., they convert it into money, and they have that 5,000l. at the disposal of Martinez & Co.; suppose any one of the gentlemen, who are doing me the honour of attending to me, had money of Martinez by him, say 10,000l., the house of Martinez, instead of drawing it out, order it to be invested in English goods; suppose they write and say, we have received your account sales of sugars and cochineal, we find we are credited for 10,000l., and we request you to ship the undermentioned goods by the Augusta, Captain Jennings, for the Gallinas, or any other place on the coast of Africa, and they set one against the other—would you hesitate in doing it? would you dream you were committing a felony? It is not that this is an only transaction (I do not know whether that would affect the case)—there is a trading for twenty years—it is a little more than ten years that they have had transactions of that kind, and have shipped goods to, they did not know who—they have never heard of the goods being seized, or the vessels seized, or what became of the money, whether invested in the slave trading, or any other traffic—all they know is, that they have received the consignments of cochineal or sugars, that they have sold them, and hold 5,000l. or 10,000l. in their hands—they are ordered this day to pay part of the money by accepting bills, and the next day they are ordered to send the remainder of the money they owe, in brandy, tobacco, or iron, to be shipped to the Gallinas, or any where else, and they act upon it—whether the goods are sold for slaves, whether they are used, whether they are sold for money, and the money spent in the purchase of other merchandise or in the support of the families of those who have received them, to them is indifferent—they have shipped the goods, they have debited the account, and there the matter ends, that is perfectly clear. He says, “With them we have carried on a regular business in consignments of sugars and of cochineal, which they have made to us; and in specie received by the packets from Mexico and other places. We have several times acted for them here in this country, buying raw cotton for instance at Liverpool, and re-selling it very largely; that has been principally with Pedro Martinez & Co.” “They are general merchants?—They are general merchants, and their transactions with us have been of that nature. As general merchants, we have bought stock here for them rather largely; and, in the course of those transactions, we have received orders from Don Pedro Martinez & Co., of the Havannah, and from Don Pedro Martinez, of Cadiz, to ship goods to the coast of Africa.” It must be doubtless so that they received the order one day to remit money, and the next to remit goods to the coast of Africa. If they were slave traders, you have no right to assume that they knew it; it is not proved that they knew it; and if Martinez & Co. were notorious slave dealers, if they are also much larger traders in cochineal and sugars, what right had they to suppose, if, instead of the money they owe, they are to ship merchandise, what right have they to suppose that they will deal unlawfully with this commodity? It is a case to which the law never pointed, and it would go to the destruction of commerce if any man was bound to pause or make any inquiry at all before he shipped. He is then asked, “Have you received orders from Pedro Martinez for shipments for the coast of Africa?—Yes; in the course of business we have received orders to ship goods upon the funds in our hands belonging to them; and we have shipped the goods described in the letter, and sent the bills of lading to Pedro Martinez; but beyond that we have never had any returns from the coast of Africa.”
This is the whole case; it is a full defence to this prosecution, and disposes of the offence it is supposed this young man was committing. And further, he says, “Nor any control of any kind from the moment the cargoes left the ports of this country.” Now here again, if this is false, it might be proved. They have given us notice to produce the accounts, and all letters that have passed between Martinez and Zulueta & Co.; they might have shown that this was false, that they had dealt in some other way, and that they had some interest in the final event of the shipment: they have not proved any thing of the kind. I say they have proved the contrary, and I will never in my person establish so fatal a precedent as to recognise the notion that any man upon his trial for a felony is to prove himself innocent before evidence is given to prove him guilty.
He is then asked, “You have had no interest in the result of the venture?—No, nor any notice, nor any acquaintance, nor any correspondence with any one upon the coast; we have never had any kind of knowledge, either subsequently or previously, of the shipments, except the mere fact of buying the goods and shipping them.” “Your whole interest was a commission upon the transaction?—Entirely. The extent of those transactions has been so limited in the course of nearly twenty years that we have been in this country, that the amount of the invoices that we have sent out has been something like 20,000l. or 22,000l. in the course of all that time. That is one part of the operations we have performed. The other operations are the acceptance of bills drawn by people on the coast; among them Pedro Blanco when he was there, upon ourselves, on account of Blanco & Cavallo, of Havannah, upon funds which Blanco & Cavallo had in our hands: for instance, the people at the Havannah, or in Spain, open a credit with us, and we accept the bills of the parties on that credit with us, just the same as we should do with any other correspondent in any other part.” “You would have funds in your hands, arising from some commercial transactions between you and the Havannah merchant, or the Cadiz merchant; and Pedro Blanco, upon the coast of Africa, would draw upon the credit of those funds, being authorised by the Cadiz or the Havannah merchant?—Yes; and if Pedro Blanco had drawn 5s. beyond that, we should have protested, and in some instances we have protested.” This shews they had nothing to do with the owner of the property abroad. They had received consignments, and had accounted for the sums of money, and they either accept bills or consign goods; if bills are drawn beyond the amount due, they protest them, and if they are asked to consign goods beyond that amount, they refuse to do so. “With regard to the vessel alluded to in this Report, the Augusta, our part in that concern has been simply that which appears from one of the letters: that is to say”—
Now here again, Gentlemen, I must refer you to the mode in which this prosecution has been carried on.
In this evidence before the Committee, the prisoner now at the bar refers to one of the letters received by the house from Martinez & Co.: I must say where the counsel for the prosecution availed themselves of this evidence before the Committee, as evidence against the prisoner upon the charge of felony, I think they were bound to make evidence of every document he referred to in it, as explanatory of the evidence he gave.
I speak this subject to the correction of their Lordships; and I know that their Lordships will overrule and correct what I say, if I am wrong, and therefore I say it with the more confidence, because I know it will not be controverted; I say, that in a prosecution for a felony, or any other crime, if the counsel for the prosecution give in evidence a statement made by a prisoner, charged with a crime which refers to a document, he ought—
Mr. Serjeant Bompas. I understood this was the letter about the 500l.; that and all the other letters are in the Appendix, and to be found there: they are deposited, every one.
Mr. Kelly. We will try my learned friend’s accuracy by looking at what it was. He says, “With regard to the vessel alluded to in this Report, the Augusta, our part in that concern has been simply that which appears from one of the letters: that is to say, Pedro Martinez, of Cadiz, had made choice of Jennings to buy the vessel, and lent him money to buy the vessel; because Pedro Martinez wanted him to have a vessel in the trade, for the purpose of taking his goods to their destination.” He says that the object of Pedro Martinez was, that Captain Jennings should buy the vessel, and that it should be conducted in the way he states. That may appear in a letter—how could it appear but in a letter from Martinez & Co. to Zulueta, containing their instructions? That letter my learned friend should have called for—he has given notice to produce it, and he ought to have called for it and made it a part of the examination, as if the witness had produced and read the letter, and it had not been set out in the evidence. He then says, “I have now described the three kinds of operations in which we have been concerned, and our knowledge of all of them terminated with the execution of the orders of our correspondents. We had nothing more to do than to follow the orders of the purchaser in shipping the goods. With regard to the purchase of the vessel by Jennings; Jennings is a man—” Here is a solution of every thing called concealment. “Jennings is a man who has been employed some time by Martinez; he has served Martinez as a chartered captain, and Martinez, having been satisfied with his services, agreed to lend him that money on the security of the vessel, provided it did not exceed a certain amount.” Now the next question is put by Mr. Forster, the member for Berwick. Mr. Forster all the world knows, and I hope you know, is very extensively concerned in the African trade; he is a man as perfectly conversant with this subject as any man in Britain; and I cannot help making the same observation as to him which I did as to Lord Stanley and Lord John Russell, I cannot help thinking, if there had been any thing dishonourable in the character of the trade and to the character of a British merchant, instead of bringing out the true colour of the transaction, as you will see he did, he would have done every thing to hold it up to reprobation. He learns from the witness the nature of the transaction as to the purchase of the vessel, that Captain Jennings had been engaged in similar transactions; he catches at it in a moment, and puts it in a few words—“You advanced the money to Captain Jennings for the purchase of the vessel, Jennings transferring the vessel to you as a security for the money so advanced?—That is just the description of operation, which is a very general one in business.” If the counsel for the prosecution says it is not the ordinary course of business, why does he not call Mr. Forster, or any other gentleman in the trade, to show that it is not correct, and that it is not a usual transaction? He has attempted no such thing; the evidence is a blank; you have only the evidence of this young man. I do not pretend to say that because this gentleman has given a long statement, in which he has vindicated his house from the statement made against them, that you are bound to believe all he says; but I do appeal to you whether, if what he says could be proved false by the prosecutors, they would not have done so? They have proved nothing false. He is speaking of an ordinary transaction of commerce before some of the first commercial men in Britain: there was a check upon his evidence which would have restrained him, if wicked enough to tell a lie, which would have prevented him saying what was not true. I say that the character of the Committee is a guarantee of the correctness of his statement, speaking of it as the ordinary course of trade.
The Chairman then says, “What is the object of such an operation?—I know very little, or almost next to nothing, of the operations in those parts of the world.” Is that true or untrue? That is the very essence of the case, as I submit to you: he has been only six or seven years in the business; they have only in the last ten years had seven or eight transactions, and in the last six or seven years they may have two or three. He says, “I know very little, or almost next to nothing, of the operations in those parts of the world.” Why, are you to suppose that he, by intuition or by magic, was to know all that Captain Hill, Captain Denman, and Colonel Nichol knew in twenty-five years of constant observation? Mr. Serjeant Bompas asks you to believe he knew every thing as well as any body living upon the spot. Then he speaks of the object of the transaction, which I will not weary you in repeating.
Then he is asked, “What advantage would there be in Mr. Jennings taking the articles rather as the owner than as captain under Martinez; was not he commander of the vessel as well as owner of the vessel?—Yes.” “He is made the owner, instead of being captain?—He is the owner as well as the captain of the vessel; he stands indebted to Martinez, and gives a bottomry bond for the vessel.” Then he goes on to illustrate what he says.
Then Mr. Forster says, “You acted in this transaction merely as agent in the usual manner, as you would have acted for any house in any part of the world?—Exactly; if Martinez had told me, ‘You have got 500l. in your hands, pay that to Captain Jennings,’ I should have known nothing more of the transaction; I should have paid the money. But Martinez did not wish to go beyond a certain amount; and he says, ‘You exercise control, do not allow the man to pay more than 500l. for the vessel.’” “But beyond the purchase of the vessel and the shipment of the goods, the other arrangements and the subsequent transactions were entirely between Jennings and Martinez & Co.?—Most assuredly; except with the order of Martinez, I do not know how we could have done any thing with him in any way.”
Gentlemen, that reminds me of this fact: my learned friend has sought to give in evidence certain papers, which were found in the year 1841 on board this vessel, and which it is now perfectly manifest were put on board that vessel in Cadiz long after she had sailed from Liverpool; I objected to that evidence. Gentlemen, I will not go over again what I said at the time: I certainly did think, considering that these letters were in print and before my Lords, that the only object of the discussion was to have a legal opinion of my Lords whether these letters were admissible in evidence. My learned friend could have argued the point without referring to the contents of the letters, and so filling your minds with the contents of those letters, which, as they were rejected, ought not to have been submitted to you; for any one, knowing how the human mind is constituted, must feel that in the mind of one or two out of the twelve the effect might have been to draw your attention to something foreign to the matter; and I objected and complained of Mr. Serjeant Bompas for referring to the letters. My Lords held that they were not evidence, but my learned friend seemed to be pressing upon you their contents in opposition to the opinion of my Lord. I will remind you that these letters were written by Martinez & Co., and put on board this vessel at Cadiz months after the vessel had sailed from England. Mr. Zulueta had never heard of these proceedings; and whether he is guilty or innocent, all that is charged against him had been committed months before these letters were in existence, and therefore to attempt to use what Martinez had said or written, against the prisoner, was only calculated to raise a prejudice injurious to the administration of justice. You may easily imagine that Martinez may be, for aught I know, a man who, besides dealing to the extent of a million a year in sugars and other things, does deal to some extent in slaves, and it is possible he may have written letters to his correspondents in Africa relating to the slave trade; and consider the wickedness of using these letters against Mr. Zulueta, who never saw the letters, and could not know any thing of them or their contents, or have any control over them. It was this sentence reminded me of that: he is asked, “But beyond the purchase of the vessel and the shipment of the goods, the other arrangements and the subsequent transactions were entirely between Jennings and Martinez & Co.?—Most assuredly; except with the order of Martinez, I do not know how we could have done any thing with him in any way.” It therefore comes to this, whatever might have passed between Martinez and Captain Jennings, Captain Jennings may be responsible for, or Martinez; but Mr. Zulueta is wholly irresponsible: all that passed through his hands he is ready to account for and abide by, and stand to the consequences of it; but what took place between Captain Jennings and Martinez is wholly beyond his knowledge; and it is unjust and unreasonable that I, as his counsel, should for one moment permit it to be given in evidence if I could prevent it.
Then Sir Thomas Acland asks him, “Do you mean that you know that the Augusta was not engaged in any slaving transactions during the voyage upon which she left Liverpool?—Most assuredly not; in fact, my testimony is hardly required of that, because every thing proves that. When she was detained, it was never said that she was upon a slaving operation at all. Before she left this port, after she was bought, she was completely rendered useless for that purpose.” Here again have they attempted to prove that the contrary was the fact, and that this answer was false? Remember that this is not said by this young man as if then upon his trial and defending himself against the charge of felony, and when he would have a strong temptation, if capable of falsehood, to say what was false to protect himself against the heavy punishment. All this is said freely. If any one of you were to hear to-morrow morning that another had said of you, you had been offered a bribe to give a particular verdict, you would go before the first tribunal and deny the statement, and request that it might be made public; that is all this young man has said, he is denying the accusation and submitting that what his accusers have said is untrue. If he was saying what was untrue, they could have shown it. He says, “After she was bought she was completely rendered useless for that purpose;” and it is proved that she was—for the leagers, the water-vessels, it was proved to you were rendered useless; and though my learned friend would not admit it, I proved that they were put ashore at Liverpool, and therefore this is every word of it true, and my learned friend has failed in proving it false.
The Chairman then says, “The charge is, that she was engaged in carrying goods to a person engaged in the slave trade; not that she was engaged in the slave trade herself?” Then he says, and here is a very important answer—“I most certainly say, that I do not know whether the person is so engaged or not.” That is, the consignee of the vessel. The Chairman observes, “The charge is, that this vessel was sent to somebody engaged in the slave trade?” And what does he say?—“I do not know whether he is or not; I do not know any thing about him.” Whether they could have proved the contrary as to Ximenes or Rolo, or all of them, I do not know. Then he goes on to say, “It seems to me that English captains and English subjects are not prohibited from borrowing money from Spaniards.” There is no doubt of that; it is quite lawful. “She was bought with money lent by Pedro Martinez to Captain Jennings for the purpose.”
Then Mr. Wilson Patten asked him, “You have stated that yours is an agency trade?—It is so; and in the multitude of business, any one can understand that 20,000l. in 15 or 20 years, can only be a mere trifle in the business of any merchant, without laying claim to a large business; and in following that business, we have executed shipping orders.”
This is another repetition of the observation made before, that it was a shipping order in the transactions of their house, and that he had only executed the orders given by a foreign correspondent. Then he is asked, “To what part of the coast of Africa has that business been chiefly conducted?—I believe, almost exclusively to the Gallinas.”
Then he goes on, and this is the part of the evidence upon which Mr. Serjeant Bompas relies—this is really the only part of this body of evidence given by this young man upon which the learned Serjeant relies in support of the prosecution—“Do you know the nature of the trade of Pedro Martinez at the Gallinas?—I know from general report, that Don Pedro Martinez himself is supposed to deal in slaves, and I believe it is so.” “Is he known at the Havannah as a dealer in slaves?—I do not know, but I believe so. I do not know why it should not be known at the Havannah, if it is known in other parts.” From that my learned friend says he does know it. You must take the whole of the evidence together. He says his house “never had any thing to do with any slave transaction, nor does he know that any vessel that ever went from their house was engaged in slave transactions, but he had heard that Pedro Martinez was engaged in the slave trade;” but you have it from other parts of the case, that he was a large dealer in other transactions quite lawful.
Now this is a statement, not of what this young man knew at the time he participated more or less in the transaction now under your consideration—these transactions took place in 1840—this examination takes place in July 1842. He does not say, that at the time they sent the Augusta they knew that Pedro Martinez was engaged in the slave trade; he says, “I know it,” speaking in the present tense, meaning “I now know it.”
Now, Gentlemen, I beg your attention to a question I besought my learned friend to read, I besought in vain—I thank God I have now the means of reading it—
Mr. Serjeant Bompas. Yes, I did read it.
Mr. Kelly. “Have you reason to suppose that a large portion of the trade that they carry on at the Havannah is the slave trade?”—His answer is, “I had no reason to know any thing of the kind; I have known more of their transactions with the slave trade since these things have been mooted than I ever knew before; I have had more knowledge of these things lately than I ever had in my life before; and when I say, ‘I,’ I beg to state that I ought to state, ‘we,’ for all my partners are in the same situation.”
Now, what does this come to? This gentleman tells you, that out of many hundred thousand pounds, a few trifling orders are sent to the coast of Africa; he is asked in 1842 if he knows of their correspondent being engaged in the slave trade, and he says he does only from common report; and in another part of the evidence, when his attention is more particularly called to it, he says, “I had no reason to know any thing of the kind; but since these transactions have been mooted I have known more of their connexion with the slave trade.” What is the meaning of this? I do implore you to remember that we are here upon a grave crime, the effect of a conviction upon which would expose this young man to utter and irremediable ruin, and bring disgrace upon his family; he is called upon after a loose examination upon the subject to explain what he has in a long examination loosely admitted, that a man was a slave trader, and also that these goods were to be so used. Looking at it fairly, what is it?—I had no reason to know it four years ago; but since these matters have been discussed I have inquired more about it, and have found, from the evidence of Captain Denman, that an event took place there which made the Gallinas, and in the character of the trading there, a matter of as much notoriety as the battle of Waterloo, or any other great event.—It appears that this officer of Her Majesty’s navy descended upon the coast and burnt every slave establishment upon the spot, and the consequence is, that reclamations have been made and actions have been brought; it was the subject of investigation before this Committee, and is the subject of proceedings in Courts of Justice, and the attention of every body has been called to it, and of course that brings to the mind of this young gentleman a great deal of knowledge of the character of the place, and those who have lived in it, more than he ever possessed before; and I put it to you, if this was a civil instead of a criminal case, and in which a man was to pay a sum of money, whether the fair inference is not, that, they shipped these goods without knowing that they were to be employed in the slave trade, that they did not know that Martinez was engaged in it till it became the subject of discussion; and I ask you, what is there to establish that it was so notorious that Martinez was a slave dealer, that Mr. Zulueta must have known that the goods were to be so employed? I ask you, why may not Mr. Zulueta, as much as any other merchant or manufacturer in the kingdom, who is asked to sell goods to go to the coast of Africa, why may he not, when there is an immense extent of lawful trade to that coast, have supposed that they were to be used in the lawful trade as in the unlawful trade, which it would be criminal in him to promote? I say that in a civil case, but in a criminal case, if there is a shadow of doubt upon your minds whether he is innocent or guilty—and in this I shall be sanctioned by my Lords the Judges—if doubt be left in your minds, when it was the duty of the prosecutor to remove that doubt, the prisoner must have your verdict. It is not because it is probable or possible that the goods might have been so employed—it is not because there is something doubtful in the transaction—you must be satisfied that he knew they were to be so employed, and that he shipped them with that object—and unless you are convinced of that, there is no case fora verdict of guilty. I say the whole question rests upon the notoriety of the place and the character of the parties, and upon that you find that this gentleman knew nothing at the time of these transactions either of the nature of the trade or the character of the persons there.
Then they talk about the ship, and so on. Then Mr. Forster says, “Your house had nothing to do with any letters that might be put on board the Augusta after she sailed from this country?—Nothing whatever.” And that is the way that was perfectly disposed of, and so the Judges have held in rejecting the letters put on board after the vessel left the country. He says, “The Augusta was seized on the coast of Africa, on the charge of slave trading?—I believe that was the case.” Then he is asked, “Have you reason to suppose that the whole of that large commerce is subservient to the carrying on of the slave trade by the house of Blanco and Martinez at the Havannah?—I do not know; I know that they have large transactions in general business. I know that a short time ago I got 40,000l. or 50,000l. of Spanish bonds in the market for Martinez. I know that he is a large speculator in Spanish bonds and in securities of state.” Then he names the house for whom that was done. Then he goes on, “Have you been employed by the house at the Havannah to ship manufactured goods from this country to Havannah, suitable for the African trade?—We have sometimes shipped goods to the Havannah of the same kind as those that were in the ‘Augusta;’ cotton goods and other things of that sort.” Would that make it felony if you shipped goods to the Havannah, if the persons there used them in the slave trade? Where is it to stop? It is essential that it should be so understood by juries, as well as mercantile men; there must be some clear and distinct rule. Men are not, while carrying on their fair and mercantile transactions, to be treading on the verge of transportation every moment of their lives, which they would be if they deal in these goods which are sent in these ships, and may be so employed or engaged.
Then he is asked, “Have you been employed by the house at the Havannah to ship manufactured goods from this country to Havannah, suitable for the African trade?—We have sometimes shipped goods to the Havannah of the same kind as those that were in the ‘Augusta;’ cotton goods, and other things of that sort.” “Have you sent any goods of that description since you first began to send goods out direct to the coast of Africa?—They have been mixed; I cannot draw a distinction between the two destinations; some have gone to the Havannah, some to the Gallinas.” Then he is asked, “How long have you conducted the trade upon the coast of Africa?—As I said before, I do not think we have conducted any trade on the coast of Africa, either legal or illegal.” He persists in maintaining, as I do on his behalf, that his transactions were closed at Liverpool; he knows nothing more about it. Then he is asked, “How long have you acted as agents for Martinez, on the coast of Africa?—As long as we have had any connexions with Martinez; it is part and parcel of other operations; that is to say, in the multitude of other operations that have intervened we have shipped goods as I have said.” And it would be a strange thing if these gentlemen, for the sake of putting into their pockets an inconsiderable sum of money by this purchase—I am afraid to calculate it, for fear I should fall into an error—were to put themselves in jeopardy of an indictment for a felony, and transportation for fourteen years. If they have done so, it must be from some strange ignorance. To suppose they would do so for that which would not pay their clerks’ salary for a day, when they have stood so far above suspicion, is absolutely incredible and impossible.
Then he is asked, “Have you ever received consignments from them, or on their behalf, of palm oil, gold dust, or ivory, from the coast of Africa?”—He says, “Never; we never have received any thing from the coast of Africa whatever. With regard to all these transactions, it will perhaps appear strange to the Committee that I should not know more of the coast of Africa, having shipped things there; but if we had shipped to the amount of 100,000l. to the coast of Africa, or carried on any considerable trade there, we should certainly have known more about the coast of Africa; but in transactions of a very large amount, an invoice occasionally of about 2,000l. or 3,000l. of goods was a thing that we sent as a matter of course, and did not trouble our heads about, especially as the remuneration we got was a mere trifle, not of itself worth pursuing, if it had not been for the general business we had?”
Now you see, Gentlemen, this in one respect confirms what I do not intend to dispute, the testimony of these naval gentlemen that there are not shipments from this colony; but the question is not whether that is the fact, or what information it conveyed to them, or what information it conveyed to Mr. Zulueta; he says, “We never received any produce from that country but that would not show that there were no produce. “Our shipments were in discharge of former liabilities; we had received sugars and sold them, and we were called upon to make shipments to the coast of Africa, and we do so; and the nature of the transaction is such that we could not have any return;” and therefore he says, “if our transactions had been larger, we should have known a great deal more of this trade than we do. We had a sum of money, the proceeds of sugar and other articles, and we sent a small shipment to Africa debiting the house with that shipment; that being all we knew, and our transactions closing the moment the ship left Liverpool, how can we know any more of it? We know no more, and that accounts for our ignorance.”
Then he is asked about another vessel in which the name of Mr. Kidd was introduced—that is quite unimportant. He is asked, “You have no connexion with Mr. Kidd in any way?—No, nor any knowledge of him.” He then says something to which I should call your attention. Something had been said by another witness, “Zulueta, the gentleman in London to whom the vessel was sent, and who sold her again to her former Spanish owner, is a name well known on the coast in connexion with the slave trade.” That is what somebody had said before the Committee, which he came before the Committee voluntarily to contradict; he says, “Now, what is known on the coast I really cannot pretend to say; but I believe that not many persons can say that which I can say, that neither myself, nor my father, nor my grandfather, nor any body in our firm, has ever had any kind of interest of any sort, or derived any emolument or connexion from the slave trade.” Gentlemen, would to Heaven that every gentleman in a mercantile house could say the same I But this gentleman is challenging contradiction, he is speaking in the presence of those conversant with the trade, and in the presence of the Secretaries of State he is laying himself open to contradiction, and he says openly, knowing it will be published to the world, and knowing he may be denounced as a man guilty of gross falsehood if it is untrue, he says, “Neither myself, nor my father, nor grandfather, ever made one shilling by the slave trade:” and yet this young man is to be selected out of the firm and made the victim in respect of the Augusta, and that upon this statement, as my learned friend reminds me; that he who comes before the Committee and challenges disproof—he says, “I challenge any one to say that I was ever engaged in the slave trade—” that that is to be made evidence and offered in a British Court before a British Jury. Now see what follows, and I believe it is not a vain boast, it is not a mere statement—he says, “My father had at one time an interest in a bankrupt’s estate at the Havannah, upon which he was a creditor. There were some slaves on the estate, and they formed part of the property assignable to the creditors, and my father got the slaves assigned to him; because the other gentlemen and the creditors were not of the same opinion.” That is, because the other people did not think there was any thing wrong in the slave trade. “He got them assigned to him, and made them free; and that is all the connexion we have ever had with any slaves in the world. I do not know how far that may be considered irrelevant to the point, but I state it because we are here mentioned three or four times as connected with slave dealers, as a name well known in connexion with the slave trade. That sort of statement—” Well indeed may he say so, and I say on his behalf, “that sort of statement is rather a difficult thing to deal with.” It is indeed, Gentlemen. When I hear my learned friend say, that because he sent out a vessel with an English captain, and because at Portsmouth there are some shackles, and because Captain Hill and Captain Denman knew this was a slave trading colony, therefore you are to convict him; I say, “it is a very difficult thing to deal with.” That is what he said before the Committee; this has been published fifteen months, and before the public; the prosecutor has had it fifteen months—has he contradicted any one letter in it? He says, “My father, and my grandfather, and my house, never had any connexion with the slave trade; except that he took some slaves, because he wished to make them free, under a bankrupt’s estate, and he made them free, that is the only connexion we ever had with the slave trade in the world.” That is his evidence, and I beg you to contrast it with the other evidence of my learned friend and the doubtful inferences he has suggested.
Then he is asked, “If it is meant to insinuate by these observations that you ever had any other connexion with the slave trade, than being the shipping agent of goods which were sent to a man who was a dealer in slaves, you entirely deny it?” He says, “I assure the Committee, that although I have a general notion as to what interest Blanco and Martinez have in slaves, yet, if I was put upon my oath to make any particular statement, I really could not, because I do not know it. Of course I believe it; but my personal knowledge amounts only to that which the knowledge of what we read in a newspaper amounts to.” It is quite evident what he means—I know nothing of their being slave traders: since these matters have been under consideration I have read the newspapers, and I see enough to lead me to suppose that they deal in slaves. But he does not say he had that knowledge in 1840, when these transactions took place. Then he is asked, “There was nothing upon the face of the transactions which you had with those parties which spoke of a connexion with traffic in slaves?—Nothing whatever. It is well known, that, fifty years ago, it was in the ordinary course of business in Cadiz”—There is another point inviting attention and contradiction.—He says, “It is well known, that, fifty years ago, it was in the ordinary course of business in Cadiz to insure operations in slave trading.” So it was at that time: slave trading, in all its branches, and of the worst character, was perfectly legal both in Spain, and I grieve to say, also in England, or English colonies. And he goes on to say, “My house at that time were underwriters, and it was notorious that a policy of that kind would never enter the doors of our house; and nobody would come to offer such a thing to us upon any terms. It is notorious, both here and in Spain, that we set our faces distinctly against having any interest of any kind in the slave trade.”
Now, Gentlemen, is it not grievous, is it not cruel, that this young man, almost just entering life, belonging to a family, belonging to a house, which can say this with truth, that while the slave trade was deemed lawful by the British law and universally practised throughout Spain and the Spanish colonies, and recognized in all its forms, “My house would not execute a policy for slaves?” Is it not cruel, that the youngest partner at the very outset of life is to have his character blasted and held up as a felon, because it is said he had done something to assist that trade?
Then he is asked, “It is further stated, ‘It appears, that it is a regular thing sending vessels to him, that is to Mr. Zulueta; if they come to England to him, he sends them to Cadiz, and they get out again to the Havannah and come again into the trade.’ Have you any observation to make upon that?—It is all untrue, the whole of it; I have never received a vessel from those gentlemen; there has been nothing of the kind.” He denies it; it might have been proved, and it has not been proved. “Have you any thing further to state upon the subject?”—Then he states a number of other matters, which as nothing has been said upon them I do not comment upon. Then he says, at the end of the last answer, “‘My answer was intended to describe only the course of that particular transaction and not to apply to any other case.’ I never received a single vessel from the coast of Africa at any time, nor any body for us.”
Then Mr. Forster says, “Then that statement is entirely untrue?—Totally, from beginning to end; we never did so, and nobody for us; and nobody to our knowledge, or with our connivance; I deny it in the most distinct manner. In answer to [Question 5487], Mr. Macaulay is asked, ‘Have you any thing further to say with regard to the connexion of Zulueta with the slave trade?’ The answer is, ‘I would refer to his connexion with the Gollupchik, which was lately captured. In that case it appeared that the vessel went out direct to the Gallinas from London.’—That is the same vessel as the Augusta, which I have already explained; it formerly bore the name of Gollupchik.”
Then he is asked about some other matters, but as they have not been made the subject of evidence here I will not comment upon them. He speaks upon the moral point, and he enters into a very lengthened statement in which he says, “I am not here to discuss the moral propriety or impropriety of the slave trade; I have my own opinions upon it, and if I thought it was a justifiable trade I should not shrink from expressing it.” That is the result of a long statement: and, in answer to a very comprehensive question of Sir Thomas Acland, “You have stated in your letter, that your principle is, that of ‘not wishing to derive profit or advantage from the sufferings of humanity, whether avoidable or unavoidable,’ and you have acted upon that principle?”—He says, “That is the principle upon which we have acted.” Then there is a great deal about the nature of various other transactions.
Then we come to something that appears upon another point—a point made a distinct matter, and which I very much rejoice is the last one to which I shall have to refer, and that not requiring any large consumption of your time. Among other reasons urged upon you as tending to the conclusion that this ship, was dispatched for the purposes of the slave trade was this by Mr. Serjeant Bompas, that the vessel in the course of the voyage unnecessarily put into Cadiz, as if there was some previous concert or arrangement that the vessel though dispatched nominally for the Gallinas should go to Cadiz, and that there some one or other should afford them facilities for carrying on the slave trade. Upon that I have some observations to make. First, one does not see how that was to be better promoted by touching at Cadiz than if she had proceeded direct to the Gallinas, and for this reason, if it had been found when she arrived on the coast of Africa that she had taken on board any materials to facilitate the carrying on the slave trade, that would be something to draw an inference from; but no such thing appears. Why she should have touched there to facilitate the carrying on the slave trade I do not understand, and still less do I understand why it is to be imputed to Mr. Zulueta that a vessel to all outward appearance cleared for the Gallinas, that it was intended she should touch at Cadiz; and I pray you to answer the question to yourselves, you cannot answer it to me, if it was intended for the purpose of good or evil she should touch there, why conceal it? Why not give out “with liberty to touch at Cadiz,” if any suspicion attached to the transaction?
Foreman of the Jury. Did we not understand that the English sailors were landed at Cadiz, and took in Spanish sailors there?
Mr. Kelly. No, some English sailors were discharged; but there is nothing about the Spanish sailors being taken in: there is nothing about that—some English sailors, two or three of them, did go on shore, but it was not in any way connected with Mr. Zulueta, or to which he could be a party. You understand, when they had sailed from England some of the sailors rebelled and mutinied; the captain, like a clear-sighted man, said, if I go to Cork these men will all leave me; I will not do that, but as it is necessary to go somewhere, I will go to Cadiz. It was not the result of any previous concert. They say it was intended before he left that he should stop there. If it had been intended I do not see why it should not have been stated in the charter-party, it would not have had a more suspicious appearance that the vessel should touch there than go to the Gallinas direct, the suspicion of the slave trade was the mention of the Gallinas. Captain Denman, who knew the place, might draw his suspicious inference from the mention of the Gallinas, but nobody would suspect it from Cadiz. It was from some mutiny of the men, added to the stress of weather, the master would not go to Cork, he went to Cadiz: it was an event arising from something in the course of the voyage, and not from any thing that occurred before the vessel left England, and it was when the vessel left England that the participation of Mr. Zulueta in the whole transaction ceased; but if it were of any importance for the purpose of the prosecution, you should have had it distinctly explained to you what took place on board the vessel, what the nature of the bad weather was which should have made it desirable to go to Falmouth or to Cork: why do they not produce the log? they have the ship’s papers.
Mr. Serjeant Bompas. My learned friend says he has not it.
Mr. Kelly. How did they get the papers from the Admiralty? The log is on board the vessel; some of the crew were on board; none of them were produced but the cabin-boy, who knew nothing; it was more convenient to bring a boy who knew nothing, than men who should enlighten you upon the object. But whether it was for a good or bad purpose that Captain Jennings went to Cadiz, what had Mr. Zulueta to do with it? To make it of any importance, the prosecutor should have proved that Mr. Zulueta had contrived, for some purpose or other, that he should touch at Cadiz. Nothing of the kind is proved upon the subject; all that is said upon the subject is what Mr. Zulueta says. Now what is it that he says? The Chairman says, “It would appear from [Question 5087], that your name is supposed to have been mentioned in a Parliamentary Paper, as connected with a slave trade transaction. Will you refer to page 38, in Class B. Paper of 1839 and 1840, which is the place referred to in the answer, and see if there is any trace of your name in that transaction?—I do not find my own name there; I only find an allusion at the bottom to the name of Pedro Martinez, but in a manner in no way connected with me, and stating a circumstance which I never knew. In [Question 7965*], it is stated, ‘The Augusta had touched at Cadiz on her way out from England?’ The answer is, ‘Yes, and landed part of her cargo at Cadiz, although it was consigned to be delivered at Gallinas.’ Now Captain Hill, who has given this answer, must have known why she touched at Cadiz, and why she discharged part of her cargo, for it must be in the log-book of the vessel. It was because she was nearly wrecked in her passage; she put into Cadiz in distress, and there she landed a part of her cargo, which was tobacco which was rotten, and sold for the benefit of the underwriters. Now that has not been stated here, but I think Captain Hill must have known it, because it is in the log-book of the vessel which he took.”
Now Captain Hill has said the same thing here to-day—the purpose of going to Cadiz was by some previous contrivance, for some purpose of Mr. Zulueta. The log would have shown the state of the weather registered from day to day during the passage of the vessel, and the rebellious part of the crew would have no desire to give Mr. Zulueta much benefit by their evidence.
Mr. Serjeant Bompas. It is not fair for Mr. Kelly to state that: the log would not be evidence against Mr. Zulueta. After you had decided against four documents, I would not offer a fifth.
Mr. Kelly. I have to thank my learned friend for this very singular instance of his forbearance; if the log, as it regards this transaction, was not evidence against me, and I do not say it would be, I cannot understand how letters written by other persons found in the vessel could be evidence against me;—but let us waste no more time upon that subject; if the log would not be evidence, he might have called some or the crew; he has only called the cabin-boy; there is no evidence to show the state of the weather; and you are called upon in a case like this to suppose that there was some previous contrivance by which the Captain was to touch at Cadiz.
Then he says, in answer to another question, and the question is directly put to him by Sir Thomas Acland, “It was not intended when she left England, that she should put into Cadiz?—Most certainly not; all the facts of the case show that she went there because she was obliged. I have not seen the log-book, but it must be there; because in the log-book the captain is bound to enter those things, and whoever captured the vessel must have seen the log-book of course. In answer to [Question 7967*], it is said, ‘Messrs. Zulueta must be aware that it is contrary to law to act as agents or otherwise for the shipment of goods that are to be employed in the slave trade; they were bound to do nothing illegal; they are merchants residing in England, and they must conform themselves to the laws of England, and they cannot by the laws of England plead ignorance of those laws.’ Now I and my partners are British subjects, and therefore we are bound by the law, and we must obey the law; and I say that to endeavour to elude the law is criminal in my estimation of things. In the answer to [Question 7970*], it is stated, ‘I have endeavoured to be particular in making it appear that this vessel was chartered to a place where there were no constituted authorities.’ I think that in the Gallinas there are constituted authorities. It is the first time that I ever heard that it is illegal for any merchant to ship goods for any places without ascertaining beforehand whether there are constituted authorities there.” Then, at the end of his examination, he is asked, “You have given the Committee the names of the parties drawing the bills, and on whose account they were drawn, and you speak of their being drawn in favour of Sierra Leone houses; have you any objection to furnish the names of the houses in whose favour they were drawn?—I say that I have no objection, except that I should not like to introduce names unnecessarily; but the bills are in my hands, and any gentleman can look at them who chooses; they are at the disposal of any body who likes to look at them.” He says, in another part of the evidence which refers to the documents, “I do not like in this transaction to mention names; any gentleman may see at my counting-house documents to verify what I state.” Gentlemen, I am reminded that it will appear that he put in the bills themselves in order to verify the statement; they were produced before the Committee, it is written down in express terms—“The witness produced the bills;” so that you see, when he makes a statement of what were his transactions, he verifies it by the documents, and produces them to the Committee.
Then, the next day, he states a fact which is perfectly conclusive as to this matter at Cadiz. He is asked, “The Committee understand that you have some further observations to make upon the evidence which has been given with reference to your house?—With reference to the destination of the Augusta, from Liverpool to Gallinas, and the fact of its having put into Cadiz unforeseen and unpremeditated altogether, in consequence of stress of weather, I omitted to mention a circumstance which will put the thing beyond doubt, and it is this: an insurance was made at Lloyd’s, from Liverpool to the Gallinas, and it is well known that, of course, we should have forfeited the insurance by going to any other port except from the peril of the sea, and the British consul at Cadiz is well aware of the circumstance, because he is Lloyd’s agent there; and therefore he had to interfere in the whole proceeding; without his sanction nothing could have been done. We have called upon the underwriters upon that account, and it has been paid, and which would not have been paid without its being proved. I stated yesterday that the transactions of my house with Pedro Martinez & Co. of the Havannah, with Blanco and Carvalho of the Havannah, and with Pedro Martinez of Cadiz, had amounted in the twenty years to 100,000l., I was afraid of overrating the amount; but on reference to the books of the house, I find that our transactions with them in twenty years have amounted to 400,000l., out of which the 22,000l. that was mentioned is the whole amount of goods that have been shipped by their orders for the coast of Africa.”
Now observe what he here states: he says, I am charged with having known, before this vessel quitted England, that she was to go to Cadiz, and that it was for some unlawful and improper purpose. He says—Not only do I deny that I knew it (I say not only is there no proof that he knew it, but he gives this convincing evidence), he says, before the vessel sailed I effected an insurance upon the ship and goods, and by that policy of insurance there was no provision for going to Cadiz. I need not observe that by the law, if a vessel deviates from the course stipulated in the policy, unless it is matter of compulsion and stress of weather, the policy is forfeited—here it is clear that there was a policy effected, under which the vessel was in no condition to touch at Cadiz—the policy would be forfeited; and yet it is supposed that this old established house, having effected this policy, into which they might have introduced the going to Cadiz, contrived that this deviation should take place, under which, if a loss had happened, they could not have recovered a shilling. It is perfectly clear, whether by accident or design, with which we have nothing to do—I think it was by accident—it is perfectly clear, that Zulueta & Co. knew nothing of it; and if a loss had happened, they could not have enforced it.
Now there are one or two more lines, and one or two only, with which I have to trouble you in this evidence. The witness is asked as to the former transactions of his house upon the coast of Africa: he is asked, “Have you bought other vessels for him (Martinez) than those which have been employed in the slave trade?—Yes, decidedly so; there was the Star, Captain Jennings.” You remember, I think, Captain Denman said there was no lawful trade carried on at the Gallinas—the question is, how far Mr. Zulueta knew that, and I asked him if he had heard of the Star; he said “No.” See what Mr. Zulueta says, “There was the Star, Captain Jennings. That vessel was sent from here to the Gallinas, precisely the same as the Augusta has been sent. She delivered her cargo; she went from thence to Cape Coast, I believe, and from there to Madeira; she received a cargo of wheat; she came back to Spain, and she was sold at Liverpool to a third party, not Martinez, or any body connected with him; in fact, she was sold for very little. The object of that vessel was just the same as the Augusta, to maintain a legal trade with Gallinas; that is within my own knowledge.”
Now I do think—I should rather say I venture to submit to you—that it appears to me, that this answer which might clearly have been contradicted, because there are specific facts stated which could have been contradicted if untrue—this answer, if true, is perfectly decisive of this case. What is it? Gentlemen, this is the nature of the transaction: he says—My house has had other transactions of the same description with the coast of Africa; we sent out the Star to this very place, the Gallinas. And the question is, whether Messrs. Zulueta & Co. had any reason to know that this was an illegal trade. If the goods had to their knowledge been bartered for slaves, if the Star had brought an illegal cargo, and if she had been seized and condemned for slave trading, then they might begin to suspect—Here is one vessel we have sent to the Gallinas for Martinez & Co. seized, we must consider before we send any more. But here was a case in which they had sent in a ship, commanded by Captain Jennings, a cargo of the same description—the transaction had been legally completed without any thing partaking of an illegal character—the ship had taken a cargo of wine and gone to some other part of the world, and then returned to England and been sold at Liverpool. Then I pray of you—and nothing can be safer than to ask you—to put yourselves for a moment in the situation of the party charged with this offence. Suppose that you had been charged with putting on board a ship a quantity of merchandise for the Gallinas—the question is, if you would have any reason to suspect there was any thing illegal in it? If you had the year before, when these British cruizers were in the seas, sent a cargo of the same goods for the same house to the same place, and the transaction had been legally completed, and if you had heard that the ship had carried a cargo of goods to Madeira, would not you say, I have done one transaction of this kind, I know nothing illegal in it, and I may enter into another of the same description? And that it was so here, you have the evidence that the Star had been there, a case in all forms of this transaction, and never impugned in the slightest degree. The present transaction of the Augusta is of the same character, and yet you are asked to believe that Zulueta & Co. knew that this last transaction was altogether unlawful and to encourage the slave trade, when they had completed a former transaction without any suspicion of any thing illegal in it.
Then he is asked some questions about the nature of the trade, and he says, “I could not say what trade there is at the Gallinas of a legal nature, but I know that those vessels would have taken nothing if there was nothing legal to take, from that place to the Havannah, or to any other place; I am aware that my answers upon this point must be deficient, because I am really very ignorant of the trade of the West Coast of Africa.” You are called upon to believe that this is all false, that he knew all about it; and he says—“At this period I am ignorant of it:” and it is not because a man is ignorant that he is to be impeached. He is asked, “Do you suppose that the vessels would be used to carry on a legal trade?—Most certainly I do; because persons find it worth while to send goods there constantly. The Committee will observe, that what the application of the goods is afterwards I cannot say, but I speak of the fact of the vessels having gone there with the intention of returning to the Havannah to bring a cargo of some description here, to pay a freight, and then to go again with the same kind of goods to Africa.” Then he is asked about Liverpool; and the Chairman says, “You have stated before, that you have cleared out for the Gallinas from Liverpool?—Yes.” “In carrying on operations of that kind, should you have ever thought it necessary to exercise any disguise as to what part of Africa you were clearing out for?—Not at all.” Nor did he. “You did not imagine, that in being the instrument of sending lawful goods to any part of Africa you were doing any thing which required concealment?—Nothing at all of the kind; and the proof of that is, that in the bills of entry in Liverpool any body could see our names as consignees of the vessel, and see entries made in our names of every thing.”
Now here again is a matter in which the prosecutors might, if they had thought proper, have contradicted this gentleman, and overset the foundation of his case. He says—“True it is that the goods may have been shipped in the name of Captain Jennings, but the whole of the transactions were conducted by our house, and the name of our house appeared in all the documents in Liverpool.” It is impossible there should have been any concealment: they might have produced the documents, or official copies of them, from Liverpool, and have shown that the shipment was not in the name of Zulueta & Co., and have contradicted him; they have produced no one document, and you are bound to suppose that it is true; and if it was so done—and there is no doubt of it, though Captain Jennings’s name may have been mentioned as the shipper, what becomes of the charge of secrecy, or any thing clandestine? It fades away before you, and vanishes before the truth, as it now appears.
Then he is asked, “Is not there a document officially published daily in London and at Liverpool, stating the daily entries at the Custom-house of all goods shipped, with the description of the goods, and the name of the port and of the shipper?—Yes, there is.” “Is not this printed from time to time in the public papers?”—There were on the Committee people connected with Liverpool, and knew every thing about the trade, or they could not have put these questions.—“It is in general circulation; there is hardly any merchant in Liverpool or in London who is not possessed of one. The Liverpool entries are reprinted in London, Liverpool being such an important place of business. The bill printed in London contains also Liverpool, Hull, and Bristol.” Then he is asked, “So that every such transaction is perfectly notorious to every one?—Notorious to every one who chooses to read the public papers. There is another thing which escaped me, till I came into the room this morning. As I have been in the business from my childhood, I know every thing that is going on in it.” Then he speaks of the Arrogante, but as that has not been made the subject of evidence, I do not trouble you with it. Then he was asked, “whether the Augusta was equipped for the slave trade the second time; the answer was ‘She was not.’ I wish to state, that before any goods were put on board of her”—he states, that an order was given, which we have evidence was obeyed—“it was our express wish and order that every thing in her that was fit for that trade should be taken down and the vessel put in the same condition as any other merchant vessel; and we should not have loaded any thing in her if that had not been done. It is stated in the evidence that the Augusta was consigned to three notorious slave dealers; now we had never in our lives heard of the name of any one of the parties to whom she was consigned.”
Now, Gentlemen, what becomes then of the evidence you had from either of the honourable officers called before you to prove that they, who almost lived upon the coast of Africa, knew that these parties were notorious slave dealers? and yet you are called upon to infer that Mr. Zulueta, who had never been there in his life, knew it himself, notwithstanding this account which he gave when not charged with felony. If he gave it now you might suspect it, but it was a voluntary statement; he need not have gone voluntarily to tell a series of falsehoods, he might have left it uncontradicted; but he is asked with reference to the persons to whom these vessels were consigned, Alvarez, Rolo, and Nimenes, and he says, “neither he, nor any of his house, ever heard of the names before.” If it were otherwise it could be proved, and it is not proved. His evidence is used against him, and it is surely but fair to use it as far as it goes for him. You have this young man freely coming forward and stating that, as to these parties to whom the goods were consigned, “I knew very little about it, and as to these people I never heard of any one of them.” Then, what becomes of the effect of the evidence of Captain Denman and others, which no doubt they have given truly, as to the nature of the slave trade? This gentleman never having been there and knowing nothing about it, how can you fix this dreadful charge of guilt upon him upon evidence which leaves him entirely untouched upon this important part of the case, and untouched by this part of the evidence given by himself?
There is a good deal more said in the course of the evidence which I do not feel it right to read. I know you must be wearied as I am myself by the exertions it has been my duty to make, and therefore I do not go over the rest of the evidence. The effect of the whole is, that as to these goods having been shipped, and this vessel consigned to the coast of Africa under the circumstances you have heard mentioned, the part that was taken in it by Mr. Zulueta, the prisoner, was but a small part, but as far as it went it was perfectly legal. The question remaining is, whether he participated in the transaction with the object, that is in order to accomplish the object, of the slave trade. That is the question to be submitted to you. The whole evidence shortly stated is, that Captain Denman and others familiar with the spot knew that the slave trade was carried on there to a very great extent, but the evidence does not show that this unfortunate gentleman, the prisoner, knew any thing of the place or the persons by whom it was carried on, that is a matter of speculation, and the only mode in which the case could be completed so as to induce you to find a verdict of guilty is, by bringing before you the evidence he himself gave upon the subject.
Gentlemen, take that evidence as it is; I am sure you will consider it fairly—consider it altogether; consider that if it had been false in its material parts, it could have been contradicted, and if it be true, as you have every reason to believe it is, what does it prove? It proves that these gentlemen, in trading with Spain and Portugal, and Africa and the Brazils, must trade with persons more or less engaged in the slave trade, and it proves his own solemn declaration, that in this transaction, as in every other in which the house was ever engaged, neither he, nor as far as he knows, his father or grandfather, ever had any participation, direct or indirect, to the most minute particular in this nefarious trade. He does not confine himself to a mere denial; he states facts, and points to other facts as far as concerns his father and the early history of the house; he details the taking of slaves under a bankrupt estate, and liberating them at a time when there were not the same opinions upon the subject which happily exist; he points to those facts as in confirmation of his solemn declaration, that as far as his own knowledge goes, that neither himself, nor to his belief his father, nor his family, nor any member of the house were directly or indirectly concerned in the trade, but endeavoured earnestly, and heartily endeavoured, to discountenance it.
Gentlemen, such is the case before you, and I have only to say in conclusion, not only do these facts appear in evidence before you, but I shall call before you a body of witnesses to the character of this gentleman; I shall call before you some of the most honourable and eminent men in the City of London in all branches of commerce, who have known this gentleman in trade, and in every way; and they will all tell you, Gentlemen, that to their experience and knowledge, according to the language in which they may express themselves, what was told you by one witness in the box before you, that this young man was a good son, a good brother, a good father, and a good and honourable member of society, incapable of wilfully evading or violating the law. Such is the character he has hitherto sustained, such is the character I shall sustain before you, and when I have called those witnesses to establish that character, rare indeed for a man so young, I shall then with confidence, under the Judge’s directions, leave this case in your hands, knowing well that when all that is dear in life, and all that which is more dear than life, his honour, is resting upon your verdict; it will not be upon vague suspicions, not upon doubts, but upon what does not exist here, clear and direct and positive proof of guilt, that you will convict him of that offence, of which he is incapable from his heart’s core.
I shall sit down confidently awaiting your verdict of Not Guilty, which will restore this young man to that high and honourable station, and to that happiness which he has hitherto worthily enjoyed.
EVIDENCE FOR THE PRISONER.
Mr. James Cook, sworn. Examined by Mr. Bodkin.
Do you reside in London?—Yes.
Are you a colonial-broker?—I am a colonial-broker under the firm of Truman and Cooke.
How long have you known the prisoner at the bar?—From ten to fifteen years.
What character has he borne during the time you have known him?—A very high character: I consider Mr. Zulueta to be one of the most honourable men in the City of London. It falls to my lot to be acquainted with a very large circle of the mercantile community. I am in close connexion with most of the large houses—Messrs. Baring, Messrs. Rothschilds, and houses of that stamp—and if I were put in a position to make any exception as to honour and integrity among the houses I have named, including Mr. Zulueta, the young man at the bar, I should put my finger upon him as the exception, as the most honourable and most straightforward man I ever knew.
Is that the mode in which you have heard him spoken of among mercantile men?—I believe I may say, without exception, it is generally understood to be so.
[Adjourned.
THIRD DAY.
MONDAY, 30TH OCTOBER, 1843.
The names of the Jury were called over.—All present.
The Defendant took his place within the Bar.
Alderman Sir John Pirie, Bart., sworn. Examined by Mr. Bodkin.
I believe you are extensively connected with trade and shipping in the City of London?—Yes.
Do you know the house of Zulueta & Co.?—Perfectly.
And the defendant, who we understand is one of the firm?—I believe so.
How long have you been acquainted with him?—I should think about twelve years.
What character during that time has he borne among those who have known him for veracity and honour as a British merchant?—I have always considered him as one of the most respectable merchants in the City of London; a gentleman very unlikely to give encouragement to this nefarious trade.
Anselmo de Arroyave, Esq., sworn. Examined by Mr. Clarkson.
I believe you live in Tavistock Square?—Yes.
Are you a merchant of this City?—Yes.
Extensively engaged in business?—Yes.
Do you know the gentleman who stands behind you, Mr. Pedro de Zulueta?—Yes.
How long have you been acquainted with his firm?—With his firm I have been acquainted about thirty-two years—the firm in Spain.
How long have you known the gentleman who stands at the bar?—I should think about twelve years.
What character has the house, and himself a member of it, borne for the honourable nature of their transactions, their integrity, and their compliance with the laws of this country?—I always heard that they were men of the most correct principle in all dealings; his father and grandfather always bore the best character.
Mr. Justice Maule. I understand the gentleman to give him a very high character; I cannot hear the expressions.
Mr. Clarkson. Is there a house, in your judgment, in the City of London, which bears a higher character for principle and honour than the house of Zulueta?—It stands second to none.
Thomas Hallifax, Esq. sworn. Examined by Mr. Clarkson.
Are you a banker of the firm of Glyn, Mills, & Co.?—I am.
How long have you known the gentleman who stands before you?—The firm have been known to our house, I believe, eighteen or nineteen years; I cannot say the precise time I became acquainted with Mr. Zulueta, but I should say from ten to fifteen years.
Have you had an opportunity of knowing during that time the reputation he bore in the City of London for the honour and integrity of his dealings and conduct?—I believe him to bear the highest possible character; I believe him to be a man of the highest honour, and the most amiable disposition. I have known him as connected with his eminent firm in the City, and also in private, and I have great pleasure in giving to the best of my knowledge the high character he has borne from his amiability and irreproachable conduct.
Samson Ricardo, Esq., sworn. Examined by Mr. Clarkson.
Are you a merchant of the City of London?—I am a member of the Stock Exchange.
Are you acquainted with Mr. Pedro de Zulueta?—Very well.
You know the house and the whole of the members?—Yes, perfectly.
Have you had transactions with them?—Yes.
What has been the character and reputation of the gentleman in the dock for honour and integrity in his personal conduct and his mercantile dealings?—The highest possible, and most straightforward: he is quite incapable of engaging in any transactions of a questionable nature.
The Honourable Baron Lionel de Rothschild, sworn. Examined by Mr. Clarkson.
Are you acquainted with the gentleman who stands in the dock?—Yes.
How long have you known him?—I have known him the best part of twenty years.
What character has he borne for honour and humanity as a man of business?—Most highly honourable as respects personal character, and as respects his firm the best and most straightforward.
Is he a man of humane disposition?—I should think perfectly so, incapable of being connected in any way with the offence charged.
Manuel Gregorio de Isasi, sworn. Examined by Mr. Clarkson.
Are you a merchant of this City?—Yes.
Where do you carry on your business?—In Water Lane.
Are you concerned in shipping at all?—No.
What is the business in which you are engaged?—A wine-merchant.
Are you acquainted with Mr. Pedro de Zulueta?—From his childhood.
Did you go to school with him?—Yes.
You knew him before he came to this country?—Yes, quite well, at Cadiz.
You are yourself from Cadiz?—Yes.
Have you had an opportunity of forming an opinion of the character he bears and deserves for integrity and honour, and his feelings of humanity in his personal character?—The highest, and his family at Cadiz. I should say that in every relation of life it is so.
José Maria Barrero, sworn. Examined by Mr. Clarkson.
You are at the head of the consulate of this country from Spain?—I am.
Are you acquainted with Mr. Pedro de Zulueta?—Yes.
Have you known him long and well?—About twenty years.
That is very much the greater part of his life I suppose?—Yes.
What has been his conduct and character in the City of London?—The highest possible.
Are you acquainted with him in his relations in private life, as well as his conduct as a merchant?—Yes.
Have you had an opportunity of knowing whether his character and conduct in private life have been altogether unexceptionable?—Yes.
Charles Tottie, Esq., sworn. Examined by Mr. Clarkson.
Are you a merchant in this country?—Yes.
Are you also at the head of the consulate of Spain?—I am consul for Sweden and Norway.
Do you know Mr. Zulueta and his firm?—Yes.
What have you to say to his Lordship and the Jury respecting his character for integrity and humanity?—I have known Mr. Pedro de Zulueta for upwards of fourteen or sixteen years, and I always considered him of the highest character, and a truly Christian man. His cousins and my sons went to school together.
What has been his character for humanity and veracity?—Oh, very high.
Dr. Neil Arnott, sworn. Examined by Mr. Clarkson.
Your name is Neil Arnot?—Yes.
You are a physician?—Yes.
Do you know the gentleman who stands by your side?—I have known him from his youth as physician to the family.
Have you had an opportunity of forming a judgment with relation to the character he has borne for honour and integrity as an individual and as a merchant?—From the many opportunities I have had of conversing with him, and knowing him in the character of a physician to his family, I have had an opportunity; also, as physician to most of the Spanish ambassadors; and I have known him as a countryman of theirs.
What character has he borne?—His father spared nothing on his education; it was the best this country could afford.
Is he a man of veracity and humanity?—In all the relations of life, kindred, friendship, and acquaintance, I consider him as standing very high.
Has he always borne the character of a humane, upright, Christian man?—As much as possible.
Charles Dodd, Esq., sworn.
I believe you are a solicitor?—I am.
Where do you live?—In Billiter Street, my house of business.
Are you acquainted with Pedro de Zulueta the prisoner?—I am.
I believe you have known him from his youth?—I have known him for twelve or fourteen years most intimately. I have the highest possible opinion of his honour and his integrity, and his moral and religious character. I have considered it a great blessing that my sons formed a strict intimacy with him, believing him as incapable of committing an offence against the law as it is possible for a man to be.
Christobal de Murrieta, sworn. Examined by Mr. Clarkson.
Are you of the firm of Aguirre Solarte and Murrieta, merchants of London?—Yes.
Do you know the gentleman who stands in the dock?—Yes.
How long have you known him?—About eighteen years.
What is the reputation which he has borne for honour, veracity, uprightness of conduct, and humanity, during the whole of the time you have known him?—The highest in both ways.
You mean the highest in all ways?—Yes.
Mr. Charles Dodd, Jun., sworn. Examined by Mr. Clarkson.
You are the son of the gentleman who has been just examined?—I am.
Have you formerly been at school with the prisoner at the bar?—No, I have not been at school with him; I have known him since the year 1831.
What opinion have you formed as to his character for honour, veracity, and integrity of conduct?—I do not believe a more honourable man exists. I have felt the greatest pleasure in his acquaintance since when I first left school; and when I was forming those acquaintances which would conduct me through life, there is no man whose society I regretted losing more than Pedro de Zulueta’s when he left Camberwell.
Hugh Sandeman, Esq., sworn. Examined by Mr. Clarkson.
Are you a stock-broker in this City?—Yes.
Do you know Mr. Zulueta?—Yes, perfectly well, for sixteen years.
What opinion have you formed of him during that time?—Of the very highest description, and in all my intercourse with houses in the Royal Exchange, I have never found but the same opinion was expressed by all of him as a private individual, and as a member.
Has his moral and religious character been perfectly unexceptionable—Perfectly so.
William Gibbs, Esq., sworn. Examined by Mr. Clarkson.
Are you of the firm of Anthony Gibbs & Son of this City?—I am.
Do you know the house of Zulueta & Co.?—Perfectly well.
And every one of its members?—Perfectly well.
Have you had an opportunity of ascertaining the reputation which Mr. Pedro Zulueta has enjoyed in the City; whether it is an unexceptionable character, morally as well as religiously speaking?—I consider him as entitled to the highest honourable character. I have always heard him so described.
Have his transactions been to your knowledge of that character?—Perfectly; all marked with integrity and honourable conduct.
Timothy Bevington, Esq., solemnly affirmed. Examined by Mr. Clarkson.
Are you a member of the Society of Friends?—I am.
The Society has expended much money and labour to put down the traffic to which reference has been made in the course of this trial?—Yes.
Do you know Mr. Pedro Zulueta?—Yes.
How long have you known him?—The last ten years.
What character has he borne during that time?—Excellent.
Do you know the house of which he is a member?—Very well; they have been my next door neighbours for many years.
Regard being had to the nature of the charge against him, what can you say as to his general character for uprightness and honour?—I have been perfectly satisfied in all the transactions I have had with him.
Have you always heard him spoken of as a man of humane and honourable conduct and feelings?—Perfectly so.
William Tindal, Esq., solemnly affirmed. Examined by Mr. Clarkson.
You are a member of the Society of Friends?—I am of that persuasion.
Are you a ship-owner of the City of London?—I am.
Do you know Mr. Pedro de Zulueta?—I know him well.
How long have you known him?—I have known the elder Mr. Zulueta for fifty years; the younger one ever since he came over.
During that time have you had opportunities of ascertaining the general character and reputation he has borne in all the relations of life?—Yes.
What can you say to his Lordship and the Jury in those respects?—He has been a very exemplary character, both as a merchant and in moral character in every way.
Do you know a house in the City of London which stands higher than that house?—There is not one; and also they have the same reputation in Cadiz.
For humanity and integrity?—Yes, for humanity and integrity, and in every way as merchants.
Samuel Jones Loyd, Esq., sworn. Examined by Mr. Clarkson.
You are a banker in the City of London?—I am.
Do you know the house of Zulueta & Co., of which this gentleman is a partner?—I have no personal knowledge of the gentleman, but I know the house by character.
What character did the house bear in the City of London for general honour?—They have a very high reputation in every respect as mercantile men.
Frederick Huth, Esq., sworn. Examined by Mr. Bodkin.
Are you a merchant in the City of London?—I am.
I believe you are one of the Directors of the Bank of England?—My son is.
How long have you known the house of Zulueta & Co.?—For the period of forty years. I have known them forty years.
Are you acquainted with the member of the firm who is unfortunately where he is now?—Perfectly so.
How long have you known him?—For twelve years.
As to individual character, how can you speak of him during the time you have known him with regard to integrity and humanity?—I cannot better describe him than that I know of no man in the City of London or any where else, a merchant, of whom I should give a higher character.
Have you ever heard a suggestion against his character as an individual, or against his regularity as a merchant?—Nothing whatever.
Abraham Mocatta, Esq., sworn. Examined by Mr. Bodkin.
Are you one of the firm of Mocatta and Goldsmid?—I am.
You are bullion dealers in the City of London I believe?—Bullion merchants.
How long have you known Mr. Pedro de Zulueta?—I have known him about sixteen years.
Have you also known the firm of which he is a member?—Yes, I have known them for that time or longer.
Have you any knowledge of their transactions in the City, the reputation they bear?—I have always understood them to bear the highest character that I have known as gentlemen of character. I have known the gentleman as a neighbour of mine for several years. He was in the habit of visiting our family, and we have the highest opinion of him; he was considered particularly humane and considerate of the wants of others.
Edwin Gower, Esq., sworn. Examined by Mr. Bodkin.
Are you of the firm of Gower & Co.?—I am.
Merchants in this City?—Yes.
How long have you known Mr. Zulueta.—I have known him ever since he has been connected with the City of London, he and his senior.
And his family I suppose before him?—Yes.
What reputation has he enjoyed during the time you have known him, and his family, and the house as a mercantile firm?—I should say, as our connexions and theirs are very similar, we have almost daily more or less intercourse with him, and I never heard the most distant rumour against his character; I believe it to be quite unimpeachable: and the house, as a house of business, stands as high as any house in the City of London.
George Rougemont, Esq., sworn. Examined by Mr. Bodkin.
Are you a merchant in the City?—I am.
How long have you known Mr. Pedro de Zulueta?—I have known the house for a great number of years, and always heard it spoken of in the highest terms. Mr. Pedro de Zulueta I have been acquainted with and visited him perhaps six or eight years, and I have had frequent opportunities of seeing his conduct as a son, as a husband, as a father, and as a neighbour, and have always found it in the highest degree unexceptionable in every respect. I consider him an amiable and kind-hearted man, and quite incapable of any thing of the kind laid to his charge.
Joseph Sadler, Esq., sworn. Examined by Mr. Bodkin.
Are you a merchant?—I am.
In the City of London?—Yes, Sadler, Harris, & Co. is my firm.
How long have you known Mr. Pedro de Zulueta?—I have known him ten or twelve years.
What character has he appeared to bear as a man of integrity and humanity?—The very first character; I should say he is the last man I have known that I consider would be guilty of that which is charged.
F. I. Vanzeller, Esq., sworn. Examined by Mr. Clarkson.
You are the Portuguese consul I believe?—I am.
Do you know the house of Zulueta & Co.?—I have known it well.
Do you know Mr. Pedro de Zulueta?—I have known Mr. Pedro de Zulueta for ten years.
What character can you give of him, as a general character, to the Jury for humanity, integrity, and good conduct of every description?—The very highest character possible.
Is that the reputation which the house of which he is a member has borne in the city of London?—Certainly.