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. 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—