The notion that the Act of Parliament must be understood, not only as punishing a proved guilty knowledge, but as demanding from the accused party proof of an innocent knowledge of the plans and objects of a foreign merchant residing abroad, in respect of a transaction, in which the former has had no other share than that of a simple shipping agency in England, by order and for account of the latter, pervades the whole of the proceedings, and shows itself more clearly in the remarks that follow. “It is possible,” continues the Judge, “that this might be an adventure, not slave trading; if so, nothing can be more simple than to prove it: Martinez & Co. might prove that it is an honest adventure. If it was a dishonest adventure, it could not be expected that Martinez & Co. should be called to give evidence at all; but if it were an innocent adventure, it would be very easy for them to be called. It is true that persons are to be convicted, not by evidence they did not produce, but by evidence produced against them—not on suspicion, but on conviction; but where such evidence is offered of the trade being slave trading, as is offered here, namely, that the vessel was loaded with goods” (in itself, as the learned Judge had formerly stated, not conclusive of guilt)—“that a cargo of goods was dispatched” (to which the same former observation applies) “to a place, where slave trading is the only known object for which vessels ever go” (known to slave traders and the police employed against them, as was also aptly remarked by his Lordship; although one of these, Captain Denman, seems to have known of 800 tons, according to his evidence (see [p. 329]); and upwards of 1,000 tons, according to his official dispatch to the Governor of Sierra Leone, dated 12th December, 1840[2], as having been landed at Gallinas, without being able to say that the object was slave trading)—“a slave-mart and nothing but a slave-mart—you have a case, though it is an answerable case; but if the answer, which if it exist could be easily given, is not given, it may very fairly be inferred that the vessel was proceeding on a slaving voyage, a voyage either for the purpose of bringing home slaves, or of landing those goods for the purchase of slaves.”
[2] Vide “Report. West Coast of Africa. Part II, Appendix,” &c. p. 460.
The learned Judge is still upon the point of the nature of the adventure, as indicated by the nature of the trade said to prevail at Gallinas; and as in the former observations, since the name of Gallinas has been laid down as probably conveying no information to any but slave dealers and the slave police, the prisoner seems to remain untouched. But then it is laid down that an answer, which of course somewhere must exist, could be easily given by the accused. How so? but that the law, this special Act of Parliament, must be so understood as to require the simple shipping-agent in England to prepare himself with a full knowledge of the plans and the objects of the foreign merchant abroad, who orders certain goods to be purchased and shipped for his account. The learned Judge has not lost sight that in the universal practice of law, a conviction is only justifiable by evidence produced—that is, produced against, not by that which the accused party does not produce: but he feels it his duty, under the Act of Parliament he was expounding, to warn the Jury that the case is not so to be treated; for the operation of that Act, when to be applied to a commission-agent in this country, shipping goods to a place about which such evidence is offered as that it is a slave-mart, and a slave-mart only, even although the knowledge of that fact has been previously stated to be most probably confined to dealers in slaves, and the police employed against them, upon whose testimony alone it stood before the Court—in such a case, when dealing with the 5th Geo. IV, the onus probandi lies with the accused. In the course of mercantile transactions, the commission-agent, who buys and ships goods by order and for account of a foreign merchant residing abroad, and to a port with which the former has no intercourse of trade whatever, would not be supposed nor could be expected to possess any further knowledge than that necessary to complete, in England, his own part of the transaction; but not so for the purposes of the Act in question. The reasoning seems to be this: here is a law which makes a certain knowledge guilty, if the object of the party abroad, originating the transaction be in deed and in fact a guilty one. In order to give force and strength to the operation of this law, it must be so laid down as to render necessary some knowledge of either an innocent or of a guilty nature, in the party residing in England, of the plans and objects of the party abroad by whose order and for whose account he has shipped goods to the port indicated to him. This or that knowledge must exist in the agent: he must be called upon to produce even the very foreign merchant himself, over whom the Court can give the accused no control, over whom he himself is not shown to possess any, and whose testimony after all could not be trusted; since that of the accused, as recorded before the Committee, is not. If in this, or in some other way, he does not prove knowledge of an innocent object, the object must be taken to be a guilty one; and as the law must be understood to require a knowledge, and he shows no innocent knowledge, the inference remains of a guilty knowledge: from which it seems evident that shipping agency business cannot be safely undertaken, as has been heretofore done, at least for merchants residing in countries in which slave dealing still exists, not only in Africa, but Cuba, Brazils, the United States, and other places. But merchants in England are required to master the whole object and plan of their correspondents abroad; and that the sincerity of his endeavours will be measured only by the result, is what common prudence will teach a man to expect from the machinery which is set on foot in order to apply to this Act of Parliament that notable remark, that who wills the end wills the means.
And thus, after having laid down that the Act requires a proof of innocence in the party accused, a knowledge of something innocent intended—which, if not given, must leave the inference of guilty knowledge, inasmuch as no knowledge, ignorance of the object, cannot be taken as an answer—the accused, if he cannot produce his correspondent, or if he did not possess himself at the time of making the shipment, of a plain and simple account of his plans, is left to the mercy of such inferences as may be drawn; and upon this view of the requirements of the Act of Parliament he is to be considered as withholding something which cannot be supposed to be favourable to him. This inference will not be counterbalanced—it cannot be when once admitted; it must either be destroyed by the plain and simple account of what the merchant abroad intended, or its edge will be blunted by nothing else. The accused’s character may be “of the very highest,” perfectly unassailable; the position he occupies in the mercantile profession may be very high, the profession itself in this country being reckoned on a level for honour and principle with the highest; and men of unblameable character, of considerable standing and independence, conscientious and upright, moving in society where good taste and right feeling prevail, are not likely to put their property, their character, their consciences, in jeopardy, especially by partaking in transactions to which their habits and feelings, and those of persons around them, stand opposed, and all that for very paltry advantage. It is pointed out by the learned Judge, that although a very grave charge, and of a very highly penal nature, still the slave trade—the dealing in slaves—“is a trade, which till a recent period was lawful for persons in this country, and many persons of very good character certainly did engage in that trade, and a great number of persons justified it. I suppose,” he continues, “those same persons would now say it is not to be engaged in, because it is a prohibited thing—it is a regulation of trade enforced by very severe penalties made by this country—but that the dealing in slaves is in itself a lawful, right, good, and proper thing, which ought not to be prohibited. Those persons would now consider slave trading as a thing prohibited only by positive regulations. There is no one who does not at once perceive that practical distinction between them. There is no person who, in point of feeling and opinion, does not perceive the difference there is between a thing which is prohibited by positive law, and that kind of thing, against which, if there were no law at all against it, the plain natural sense and conscience of mankind would revolt. This trading in slaves, in the opinion of a great many persons, is itself an abomination, a thing which ought to be considered with the greatest horror, whether prohibited or not; but those who think it was right when it was not prohibited, probably do not think it so very bad if it be committed now, since it has been prohibited by law, only that it is to be avoided on account of the penalty to which it subjects the individuals engaged in it. This has some bearing on the question of how far considerations of character would have weight with respect to such an offence.” The opinion entertained by the individual in question against the slave trade may be as strong as the strongest for any thing that appears, who has stated without its having been contradicted, that neither himself nor his family have ever been suspected of having the smallest interest in slave dealing, or in slave property, about which he has stated how his fathers have proceeded: an individual, who may, perhaps, have a very strong opinion as to the moral and religious duty of obedience to positive enactments by competent authority, and who said something to that effect in the evidence before the Committee of the House of Commons, which had been read in Court.
This as to the character of the party. As to the inducement, when it is alleged that the smallness of the agency commission charged shows that the transaction was considered to be one in the ordinary course of shipping business, that consideration is pressed down by the weight of the radical defect in not having given a plain and simple account of what was intended by the foreign merchant. “It is alleged,” says the Judge, “that the profit on this transaction would be extremely small. I do not think that the petty gain of this one transaction is the matter, for it appears that Pedro Martinez & Co. do a great deal of business, and it is possible that whenever persons have a large and valuable business to conduct, there is some small portion that the correspondent and agent would willingly get rid of if he could; but he is not allowed to pick and choose, but he must take the whole.” In short, a London merchant, of the character which has been described, is to be supposed as not at all unlikely to commit a felony, if the alternative be to lose a valuable connexion.
And thus, whilst the most unimpeachable character is not a proof to any extent against the suspicion of a felonious knowledge and intent, and whilst the token of innocence afforded by the charge of the ordinary rates allowed in legitimate business is not considered of weight—as a compensation in some other way is possible, and the disposition to barter conscience and duty for money is such a thing as people who conduct a large business are not quite unlikely to lend themselves to if they are not allowed to pick—so, likewise, the supposed extent of the connexion of the merchant is no bar to their being supposed anxious to retain one more under felonious conditions. Neither the superiority of his knowledge and education, nor his skilfulness, are likely to make him either apprehensive or disinclined to the commission of a crime, whilst these qualities render him obnoxious to the remark, “that it may very generally be taken, that people know what they are about, unless they can show there was some particular concealment, some hinderance to their knowledge;” “unless they,” so accused, “can show,” that they did not know (not if those who accuse them have shown that they did know), then all the qualities of character, station, extent of business, education, are against the accused; and unless the accused can show, that he had a knowledge of something innocent having been intended by the foreign merchant, any peculiar circumstances of the case, which may appear to be of a favourable nature to the accused, must be considered only in that light which may diminish the improbability of his having had a guilty knowledge. Thus, as the employment of the British flag for the purpose of dealing in slaves stares every body in the face, and was a very strong feature in the present case, not only against any knowledge on the part of the charterer of the vessel and shipper of the goods in England, but even against there having been any guilty intent in the merchant abroad, who had the choice of other flags equally secure and less easy of detection and punishment, the favourable inference hence arising must be neutralised. “If Jennings” (the master of the vessel) “was an adventurer, if he were, as suggested, a very clever and intelligent person, and very conversant with every thing to be done on this occasion, a competent master of the vessel, supposing the slave trade to be intended, a thing which requires qualities one is sorry to see exercised so ill—a great deal of courage, sagacity, and presence of mind, and an unscrupulous readiness to employ them for the commission of this felony, not to be found in everybody—a man of such a description would be the paramount object of a slave trader, whose aim would be, whoever the owner may be, to elude all search, so to manage the thing as that the cruizers of any country shall not stop him. Probably, if the adventure succeeds, it must succeed by such means, so that one sees a perfectly good reason why, consistently with this being a slave trading voyage, it may have been English owned.” Not a word appears in the proceedings against the character of this man, neither does it seem intended by the learned Judge to impugn it, simply to say that if the man did possess the qualities of cleverness and courage attributed to him, these qualities being very serviceable for wicked purposes, it is to be inferred that they were intended to be applied to a slave trade adventure, since no plain and simple account of a lawful intent on the part of the foreign merchant has been given by the charterer in England, with whom the law is to be supposed to make a knowledge imperative. The prosecutor knew, although it was not before the Court, that this man had been tried for the very identical offence in this matter of the Augusta at Sierra Leone, and had been acquitted; for the chief witness in this prosecution, in which, be it observed, Jennings is coupled with me (see the indictment, [page 211]), was the prosecutor in the proceedings against him before the criminal court of that colony; and he himself stated before the Committee of the House of Commons (see Lieutenant Hill’s evidence, [page 84]), that Jennings had been acquitted. And here, by the way, let it be noticed, that Jennings is at this moment under a prosecution in London for the very crime for which he was tried at Sierra Leone and there acquitted, the chief and really the only witness, upon whose sworn depositions before the Grand Jury here the bill against Jennings has been found, being the very same person who instituted the prosecution at Sierra Leone, which terminated in the acquittal of Jennings. And thus, while the individual so acting is at this moment on his way to take possession of his appointment as governor of the Gold Coast, the unfortunate man, who he knows cannot be tried a second time, is in prison.
Further, as the vessel had been admitted (how reluctantly may be easily seen) by one witness not to have been furnished with equipment of any sort for slaving purposes, and had been rescued from the attempt to raise a doubt upon this point, by the evidence of another witness, this is shown also as in no way serving the shipping-agent in England without giving the plain and simple account of what was intended by the foreign merchant residing abroad. “I should think it would be quite a matter of course, even if the vessel was intended to be sent to promote the slave trade, that she should not go out with shackles or leagers, or any thing of that kind on board; for if they are on board, the vessel would be at the mercy of any Custom-house officer.”
The vessel had, however, been at Cadiz, where, according to the representation made on behalf of the prosecution she was really meant to go first, in order to provide herself with the slave instructions, which the Court would not receive, though strongly pressed, as evidence against the agent who had managed the vessel in England so far as chartering and loading her; and yet, although it had been said by Serjeant Bompas “that wherever a vessel leaves a place such as Spain, or some place where she may leave with impunity, with all her equipments complete,” she does so; and although this vessel, which has been charged by the prosecution to have gone into Cadiz for the very purpose of helping the illegal object imputed: she is found not to have been there equipped—and that not from any great attention to the safety of the adventure, for the letters contended to be so clearly slave instructions for the voyage seem to have been there put on board—still the observation is not the less applied, that she was not equipped for the slave trade, because she could not have been so in an English port, without any reference to the fact that the prosecution had contended she could and would have so been at a Spanish port. There she had, however, touched; and that too, according to the prosecution, for the very express purpose of helping the illegal object in a manner more condemnatory than any other. The thing demanded from the prisoner is, however, a plain and simple account of the intent of the foreign merchant in this transaction, and without his being able to give that, every other circumstance which may be favourable to him, either vanishes away, or converts itself into a weapon against him.
Again, the counsel for the defence had put the following case to the Jury:—“You may be manufacturers of guns or gunpowder, or commission-agents living in this country, who, for the purpose of shipment, purchase those goods; in either case a party comes and says—I want 1,000 muskets and six tons of gunpowder to be shipped to a certain place on the coast of Africa. I ask you, are you first to consult the map to ascertain the place, and, having ascertained where it is, are you to go to Captain Hill or Captain Denman and inquire whether they have been upon the coast of Africa, and can tell you the character of the trade carried on there? Are you next, the person being a Spaniard or a Portuguese, to inquire whether they ever deal in slaves; and if you find they do, are you to say, I will execute no order you give me?”
Upon this the learned Judge remarks:—“That Zulueta & Co. stand in a very different situation from that of a person who is simply the manufacturer or dealer in goods, and who has those goods ordered, and who, inquiring Where shall I send them? is answered, Send them on board the ‘Augusta,’ now lying at Liverpool. It would be a strong thing from that circumstance to infer that a person sending those goods on board had any thing to do with slave trading; but that appears not to be the nature of this transaction. In regard to there being a slave trading, all that is done, is done by Zulueta & Co. It is not merely that they had goods sent on board the ship, but they chose the number of the goods to be sent on board the ship, goods which they had bought, for which they had negotiated; and they made out such charter-party, and that charter-party provides that the ship shall proceed to Gallinas on the coast of Africa.”