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.