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.