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.