Trial of Pedro de Zulueta, jun., on a Charge of Slave Trading, under 5 Geo. IV, cap. 113, on Friday the 27th, Saturday the 28th, and Monday the 30th of October, 1843, at the Central Criminal Court, Old Bailey, London / A Full Report from the Short-hand Notes of W. B. Gurney, Esq.

by Pedro de Zulueta; William Brodie Gurney

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.