I speak this subject to the correction of their Lordships; and I know that their Lordships will overrule and correct what I say, if I am wrong, and therefore I say it with the more confidence, because I know it will not be controverted; I say, that in a prosecution for a felony, or any other crime, if the counsel for the prosecution give in evidence a statement made by a prisoner, charged with a crime which refers to a document, he ought—
Mr. Serjeant Bompas. I understood this was the letter about the 500l.; that and all the other letters are in the Appendix, and to be found there: they are deposited, every one.
Mr. Kelly. We will try my learned friend’s accuracy by looking at what it was. He says, “With regard to the vessel alluded to in this Report, the Augusta, our part in that concern has been simply that which appears from one of the letters: that is to say, Pedro Martinez, of Cadiz, had made choice of Jennings to buy the vessel, and lent him money to buy the vessel; because Pedro Martinez wanted him to have a vessel in the trade, for the purpose of taking his goods to their destination.” He says that the object of Pedro Martinez was, that Captain Jennings should buy the vessel, and that it should be conducted in the way he states. That may appear in a letter—how could it appear but in a letter from Martinez & Co. to Zulueta, containing their instructions? That letter my learned friend should have called for—he has given notice to produce it, and he ought to have called for it and made it a part of the examination, as if the witness had produced and read the letter, and it had not been set out in the evidence. He then says, “I have now described the three kinds of operations in which we have been concerned, and our knowledge of all of them terminated with the execution of the orders of our correspondents. We had nothing more to do than to follow the orders of the purchaser in shipping the goods. With regard to the purchase of the vessel by Jennings; Jennings is a man—” Here is a solution of every thing called concealment. “Jennings is a man who has been employed some time by Martinez; he has served Martinez as a chartered captain, and Martinez, having been satisfied with his services, agreed to lend him that money on the security of the vessel, provided it did not exceed a certain amount.” Now the next question is put by Mr. Forster, the member for Berwick. Mr. Forster all the world knows, and I hope you know, is very extensively concerned in the African trade; he is a man as perfectly conversant with this subject as any man in Britain; and I cannot help making the same observation as to him which I did as to Lord Stanley and Lord John Russell, I cannot help thinking, if there had been any thing dishonourable in the character of the trade and to the character of a British merchant, instead of bringing out the true colour of the transaction, as you will see he did, he would have done every thing to hold it up to reprobation. He learns from the witness the nature of the transaction as to the purchase of the vessel, that Captain Jennings had been engaged in similar transactions; he catches at it in a moment, and puts it in a few words—“You advanced the money to Captain Jennings for the purchase of the vessel, Jennings transferring the vessel to you as a security for the money so advanced?—That is just the description of operation, which is a very general one in business.” If the counsel for the prosecution says it is not the ordinary course of business, why does he not call Mr. Forster, or any other gentleman in the trade, to show that it is not correct, and that it is not a usual transaction? He has attempted no such thing; the evidence is a blank; you have only the evidence of this young man. I do not pretend to say that because this gentleman has given a long statement, in which he has vindicated his house from the statement made against them, that you are bound to believe all he says; but I do appeal to you whether, if what he says could be proved false by the prosecutors, they would not have done so? They have proved nothing false. He is speaking of an ordinary transaction of commerce before some of the first commercial men in Britain: there was a check upon his evidence which would have restrained him, if wicked enough to tell a lie, which would have prevented him saying what was not true. I say that the character of the Committee is a guarantee of the correctness of his statement, speaking of it as the ordinary course of trade.
The Chairman then says, “What is the object of such an operation?—I know very little, or almost next to nothing, of the operations in those parts of the world.” Is that true or untrue? That is the very essence of the case, as I submit to you: he has been only six or seven years in the business; they have only in the last ten years had seven or eight transactions, and in the last six or seven years they may have two or three. He says, “I know very little, or almost next to nothing, of the operations in those parts of the world.” Why, are you to suppose that he, by intuition or by magic, was to know all that Captain Hill, Captain Denman, and Colonel Nichol knew in twenty-five years of constant observation? Mr. Serjeant Bompas asks you to believe he knew every thing as well as any body living upon the spot. Then he speaks of the object of the transaction, which I will not weary you in repeating.
Then he is asked, “What advantage would there be in Mr. Jennings taking the articles rather as the owner than as captain under Martinez; was not he commander of the vessel as well as owner of the vessel?—Yes.” “He is made the owner, instead of being captain?—He is the owner as well as the captain of the vessel; he stands indebted to Martinez, and gives a bottomry bond for the vessel.” Then he goes on to illustrate what he says.
Then Mr. Forster says, “You acted in this transaction merely as agent in the usual manner, as you would have acted for any house in any part of the world?—Exactly; if Martinez had told me, ‘You have got 500l. in your hands, pay that to Captain Jennings,’ I should have known nothing more of the transaction; I should have paid the money. But Martinez did not wish to go beyond a certain amount; and he says, ‘You exercise control, do not allow the man to pay more than 500l. for the vessel.’” “But beyond the purchase of the vessel and the shipment of the goods, the other arrangements and the subsequent transactions were entirely between Jennings and Martinez & Co.?—Most assuredly; except with the order of Martinez, I do not know how we could have done any thing with him in any way.”
Gentlemen, that reminds me of this fact: my learned friend has sought to give in evidence certain papers, which were found in the year 1841 on board this vessel, and which it is now perfectly manifest were put on board that vessel in Cadiz long after she had sailed from Liverpool; I objected to that evidence. Gentlemen, I will not go over again what I said at the time: I certainly did think, considering that these letters were in print and before my Lords, that the only object of the discussion was to have a legal opinion of my Lords whether these letters were admissible in evidence. My learned friend could have argued the point without referring to the contents of the letters, and so filling your minds with the contents of those letters, which, as they were rejected, ought not to have been submitted to you; for any one, knowing how the human mind is constituted, must feel that in the mind of one or two out of the twelve the effect might have been to draw your attention to something foreign to the matter; and I objected and complained of Mr. Serjeant Bompas for referring to the letters. My Lords held that they were not evidence, but my learned friend seemed to be pressing upon you their contents in opposition to the opinion of my Lord. I will remind you that these letters were written by Martinez & Co., and put on board this vessel at Cadiz months after the vessel had sailed from England. Mr. Zulueta had never heard of these proceedings; and whether he is guilty or innocent, all that is charged against him had been committed months before these letters were in existence, and therefore to attempt to use what Martinez had said or written, against the prisoner, was only calculated to raise a prejudice injurious to the administration of justice. You may easily imagine that Martinez may be, for aught I know, a man who, besides dealing to the extent of a million a year in sugars and other things, does deal to some extent in slaves, and it is possible he may have written letters to his correspondents in Africa relating to the slave trade; and consider the wickedness of using these letters against Mr. Zulueta, who never saw the letters, and could not know any thing of them or their contents, or have any control over them. It was this sentence reminded me of that: he is asked, “But beyond the purchase of the vessel and the shipment of the goods, the other arrangements and the subsequent transactions were entirely between Jennings and Martinez & Co.?—Most assuredly; except with the order of Martinez, I do not know how we could have done any thing with him in any way.” It therefore comes to this, whatever might have passed between Martinez and Captain Jennings, Captain Jennings may be responsible for, or Martinez; but Mr. Zulueta is wholly irresponsible: all that passed through his hands he is ready to account for and abide by, and stand to the consequences of it; but what took place between Captain Jennings and Martinez is wholly beyond his knowledge; and it is unjust and unreasonable that I, as his counsel, should for one moment permit it to be given in evidence if I could prevent it.
Then Sir Thomas Acland asks him, “Do you mean that you know that the Augusta was not engaged in any slaving transactions during the voyage upon which she left Liverpool?—Most assuredly not; in fact, my testimony is hardly required of that, because every thing proves that. When she was detained, it was never said that she was upon a slaving operation at all. Before she left this port, after she was bought, she was completely rendered useless for that purpose.” Here again have they attempted to prove that the contrary was the fact, and that this answer was false? Remember that this is not said by this young man as if then upon his trial and defending himself against the charge of felony, and when he would have a strong temptation, if capable of falsehood, to say what was false to protect himself against the heavy punishment. All this is said freely. If any one of you were to hear to-morrow morning that another had said of you, you had been offered a bribe to give a particular verdict, you would go before the first tribunal and deny the statement, and request that it might be made public; that is all this young man has said, he is denying the accusation and submitting that what his accusers have said is untrue. If he was saying what was untrue, they could have shown it. He says, “After she was bought she was completely rendered useless for that purpose;” and it is proved that she was—for the leagers, the water-vessels, it was proved to you were rendered useless; and though my learned friend would not admit it, I proved that they were put ashore at Liverpool, and therefore this is every word of it true, and my learned friend has failed in proving it false.
The Chairman then says, “The charge is, that she was engaged in carrying goods to a person engaged in the slave trade; not that she was engaged in the slave trade herself?” Then he says, and here is a very important answer—“I most certainly say, that I do not know whether the person is so engaged or not.” That is, the consignee of the vessel. The Chairman observes, “The charge is, that this vessel was sent to somebody engaged in the slave trade?” And what does he say?—“I do not know whether he is or not; I do not know any thing about him.” Whether they could have proved the contrary as to Ximenes or Rolo, or all of them, I do not know. Then he goes on to say, “It seems to me that English captains and English subjects are not prohibited from borrowing money from Spaniards.” There is no doubt of that; it is quite lawful. “She was bought with money lent by Pedro Martinez to Captain Jennings for the purpose.”
Then Mr. Wilson Patten asked him, “You have stated that yours is an agency trade?—It is so; and in the multitude of business, any one can understand that 20,000l. in 15 or 20 years, can only be a mere trifle in the business of any merchant, without laying claim to a large business; and in following that business, we have executed shipping orders.”