The HONOURABLE Mr. JUSTICE MAULE,The HONOURABLE Mr. JUSTICE WIGHTMAN,
The HONOURABLE Mr. JUSTICE MAULE,The HONOURABLE Mr. JUSTICE WIGHTMAN,
AND
Mr. COMMISSIONER BULLOCK.
Mr. COMMISSIONER BULLOCK.
Copy from Mr. Gurney’s Short-hand Notes of the Proceedings on the Trial of this Indictment.
Mr.Kelly. My Lord, with respect to Mr. Zulueta, it is very important that I should be able to communicate with him from time to time as the trial proceeds. May I ask of your Lordship some indulgence to permit him to sit near his counsel?
Mr. JusticeMaule. What is the charge?
Mr.Kelly. The charge under prosecution is felony; the felony being, the fitting out a ship with certain objects declared by statute to be illegal, namely, those of slave trading.
Mr. JusticeMaule. I should wish that Mr. Zulueta, and every one else, should have the liberty of sitting by his counsel, but that is impossible. I understand an application was made in the case of a person of the name of Trotter.
Mr.Kelly. It has been done; there are many precedents. I do not ask it on the ground of any difference of rank or condition, but because the justice of the case requires it, particularly as he is a foreigner, a Spaniard, and many of the documents which will have to be referred to in the course of the proceeding are in the Spanish language, that I should be enabled to communicate with him. It is not at Mr. Zulueta’s own instance I make the application, but for my own assistance in the conduct of the defence.
Mr. JusticeWightman. A similar application was made in the case of Captain Douglas.
Mr.Kelly. That was not an application by counsel for the convenience of counsel, in aid of the justice of the case, but on the ground of his being an officer in the British army. That, if granted, might establish a distinction which ought not to be established; but in the case of Horne Tooke, where it became necessary for the merits of the case that there should be a constant communication between the counsel and the prisoner, it was permitted.
Mr. JusticeWightman. What was the charge against him?
Mr.Kelly. High treason. A case, I may venture to say directly in point, except that that was a weaker case than this, for this is a case of a foreigner, a Spaniard; and, as I have observed, most of the documents to which it will be necessary from time to time to refer, are in the Spanish language, and it is impossible I can do justice to his case if I cannot communicate with the prisoner so as to understand their effect.
Mr. JusticeMaule. Have you the 9th vol. of Carrington & Payne? The difficulty stated is, that though the prisoner cannot come to his friend, his friend may go to him.
[The 9th vol. of Carrington & Payne’s Reports was handed to his Lordship.[The Witnesses on both sides were directed to leave the Court.
[The 9th vol. of Carrington & Payne’s Reports was handed to his Lordship.
[The Witnesses on both sides were directed to leave the Court.
Mr. JusticeMaule. Have you got the case of the Kingv.Tooke?
Mr.Kelly. No, I have not the book here, my Lord; but I remember the case.
(The Report was produced.)
Mr. JusticeMaule. In the Report in the State Trials of the case of Mr. Horne Tooke, to which you have referred, it appears that he claimed as a matter of right, the being permitted to sit near his counsel. The Lord Chief Justice says, “That is an indulgence which I have hardly ever known given to any person in your situation.” The Lord Chief Justice at that time was Lord Chief Justice Eyre. Mr. Horne Tooke says, “I am perfectly aware that it is unusual, but I beg your Lordship to observe that every thing in the course of these proceedings is likewise unusual. I beg your Lordship to consider that the proceedings upon the last trial will fill, as I am well informed by the short-hand writer, 1,600 close printed octavo pages. That trial lasted nine days; eight days trial, and one day between. The nature of the indictment is such, that it has been impossible for me to guess what would come before your Lordship: it has been equally impossible for me to instruct my counsel; they cannot know the passages of my life, and from what I have seen on the last trial the whole passages of my life, and those which are not passages of my life, but are only imputed to me, will be brought before you: how is it possible for my counsel to know those particular facts which are only known to myself? If ever there was a case where indulgence was fit to be granted, it is this; yet your Lordship will forgive me for saying that I claim it as my right by law, and do not ask it as an indulgence.” After more argument to that effect, the ChiefJustice says, “Mr. Tooke, you have been furnished with that which the law considers as the necessary means to enable you to make your defence; you have had counsel assigned to you; they have had, or might have had, access to you at all seasonable hours; that is what the law allows you. You have taught the Court not to use the word indulgence, and you have pointed out to them their duty, that they are to give no indulgence. I am apprehensive that it would be considered as an extraordinary indulgence if the Court were now to do that which you ask, because that is not done to other prisoners; it was not done to another prisoner who went immediately before you, who had the same stake that you have, nor is it done to all other prisoners who do come to this bar, and therefore the Court are not permitted without doing injustice to others to grant that which you ask upon the ground upon which you ask it.” Then he goes on—“But you have mentioned another circumstance extremely material, and which will, in my mind, warrant the Court to do that which you think they ought not to do, to indulge the prisoner. You have stated the condition of your health, and that in the place in which you stand your health will suffer: the Court has no desire to put you under any difficulties; they wish that you should be enabled to make your defence in the best way imaginable; and if the situation in which you stand is really likely to be prejudicial to your health, and therefore likely to disable you from making your defence in the manner you might otherwise make it, I shall put it to my Lords to consider, whether you may not be indulged with that which you have now asked.
“Mr. Tooke—The Court will forgive me only for saying, that if, on the footing of indulgence, the Court shall not think fit to grant what I ask, I hope I shall not, after that decision, be barred from my argument upon it as a point of law.” Then the Chief Justice says—“You must state your whole case upon any matter that arises at once: the proposing it first in one shape, and then going on to state it in another, is carrying us on without end; if you mean to argue this as a point of law to be sure we are ready to hear you.” Mr. Tooke: “I beg your Lordship not to misunderstand me; I did so mention it at first, and did ask it not as an indulgence, if your Lordship will be pleased to recollect: I did mention, that if there were objections I should then argue it in point of law, thinking that I am well entitled to it by the principles, by the letter, and by the practice of the law: I did not mean to change my ground; I beg your Lordship will be pleased to recollect I excluded the idea of indulgence: I did not mean to take first one ground and then another, but I thought it possible I might save the time of the Court, therefore I left it to your Lordship to collect the sense of the Court even upon the score of health, which your Lordship mentions, to save time, and not to waste the time. I understood very well that after a decision I should not be permitted to argue it, and therefore I mentioned that, but not to change my ground; and therefore if your Lordship should find upon the score of what you call indulgence, I suppose in a different view of the word that I am accustomed to take, I rather understand that your Lordship means you are willing to grant it me upon the score of my health, in that case I do not desire to waste thetime of the Court; provided it is granted to me, I am very happy and shall be glad to avoid the argument, if your Lordship will be only pleased to give me some intimation of your opinion.” The Chief Justice, after consulting with the other judges, says:—“Mr. Horne Tooke, I have consulted my Lords the Judges who are present, they feel themselves extremely disposed to indulge you on the score of your health; they think that it is a distinction which may authorise them to do that in your case which is not done in other cases in common; they cannot lay down a rule for you which they would not lay down for any other man living, but if your case is distinguishable from the case of others that does permit them to give you that indulgence which you now ask”—Then Mr. Tooke says:—“I am very much obliged to your Lordships, and am very well content to accept it as indulgence or any other thing. Undoubtedly it is very acceptable to me, and very necessary for my health; I am glad to save the time of the Court.” On that ground, after having attempted it on the ground I have stated, he was removed to the inner bar.
Now that case seems, I think, to establish that it is, in the judgment of the several judges who were here upon that occasion, a thing which ought not to be done unless under very special circumstances, and we ought to be on our guard against doing that which might have the appearance of treating one kind of felony, and one rank or class of persons, in a different way from another; or of intimating that, because a person is somewhat of a superior rank, he is to be treated in a different manner; and we are anxious not to do it in the way of favour or on any such ground as that, and we feel that we cannot grant this on the ground on which you put it. This seems to my learned brother and myself to be the same in fact as Mr. Tooke’s, though not quite so strong—a desire in the party to communicate with his counsel, which will exist in every case. It was not thought sufficient in that case: he was indulged only on the ground that his health was such that it would suffer from his remaining in the ordinary place: and here no such cause is alleged.
Mr.Kelly. It is my duty to acquiesce in the decision of your Lordships. I beg to say I did not put this on any distinction of rank.
Mr. JusticeMaule. No; that we understand perfectly, and the Court is disposed not so to put it. I said, that lest there should be a feeling, though it was not put so, that there might be a distinction drawn between this and any other case on that ground. What other difference is there between Mr. Zulueta, charged with felony in slave trading, and any other person coming to that dock, charged with any felony of any other character, requiring wealth and capital to carry it on?
Mr.Kelly. I did not desire, in the least, to press it on that ground; on the contrary, I disclaimed it: I mentioned that which was the principal ground—that the documents are all in a foreign language; and that which I submitted to your Lordship was entirely my own suggestion, and not Mr. Zulueta’s: I acquiesced at once, as I ought, in your Lordship’s decision.
Mr. JusticeMaule. The Court is so constructed that you can approach Mr. Zulueta, though he cannot approach you.
(The Defendant took his place within the Bar, and was arraigned on the Indictment for Felony.)
Clerk of Arraigns.How say you, are you Guilty, or Not Guilty?
Defendant.I am Not Guilty.
Clerk of Arraigns.If you object to any of the gentlemen who are called, you may make the objection before they are sworn; and it is my duty to inform you that you have a right to be tried, being a foreigner, either by a jury of half foreigners and half English, or by a jury entirely English.
Defendant.I have no wish; I am as safe in the hands of Englishmen as of any body.
The following Jurymen were called and sworn:—
1. John Foote.2. William Jackson.3. Robert Nagle.4. Charles William Knight.5. Michael Jones.6. Richard Jessop.7. William Hawksworth.8. James Gillard.9. Edward Findlay.10. James Parker.11. John Godfrey.12. James Gordon.
1. John Foote.2. William Jackson.3. Robert Nagle.4. Charles William Knight.5. Michael Jones.6. Richard Jessop.7. William Hawksworth.8. James Gillard.9. Edward Findlay.10. James Parker.11. John Godfrey.12. James Gordon.
(The Jury were charged with the Prisoner in the usual form.)
Mr. SerjeantBompas. Before I make the address which it will be necessary to make to the jury, will your Lordship allow me to apply on behalf of a witness, a gentleman who took the notes in short-hand of what took place before the Committee of the House of Commons? I, of course, do it with the consent of the counsel on the other side; it is, that he may be now examined, which will remove all question as to the propriety of the proceeding; that he may be now sworn and state that this blue book contains a correct account of what took place: that will, of course, be subject to such objections as may be made by my learned friend.
Mr.Kelly. My Lord, I understand that Mr. Gurney’s presence is required, for the purpose of justice in Wales, under an order from the Home Office. I perfectly agree, that it shall be taken upon his evidence that this blue book contains a true account of what took place before the Committee, subject to any objections as to the admissibility of the evidence, the matter standing as if Mr. Gurney had given his evidence in its proper order.
Mr. JosephGurney, sworn. Examined by Mr. SerjeantBompas.
Q.Did you attend as short-hand writer before the Committee of the House of Commons, at which these proceedings were taken in short-hand?—A.I did.
Q.Is this book printed from your short-hand notes?—A.Mr. Zulueta’s evidence. I took the evidence of Mr. Zulueta; not the whole.
Q.Did you take the evidence of others?—A.Yes; of some others.
Mr. SerjeantBompas. On behalf of the prosecution we admit that the other parts are taken from the short-hand notes: we shall want the evidence of Mr. Zulueta.
May it please your Lordship,
Gentlemen of the Jury,—It is my duty to call your attention to a case of very considerable moment. I am quite sure you will feel that all cases, in which the liberty and welfare of any person standing as a prisoner at the bar before you are concerned, are matters of considerable importance; but I cannot but think that this is one which will deserve your very particular attention. The case is, to you and to most persons, one of a novel description as a matter of trial. It is very rarely indeed, that offences under the Act to which your attention will be directed can be brought before a jury as the subject of their investigation. It necessarily will include a variety of facts, some of them being in some degree complicated; and it requires, therefore, that careful discrimination which I am quite sure you will be quite ready to give. To the prisoner, of course, it is of paramount importance, standing here before you upon his trial on such a charge as that which has been presented against Mr. Zulueta, and calls for the utmost possible attention. I do not consider that I should keep from you one thing which has been mentioned already in your hearing, that the prisoner at the bar is a person of wealth, and rank, and station. He is a merchant of the city of London. I am quite sure that that cannot make any difference in your consideration of the case, unless by increasing that interest which necessarily is excited by the respectability in life of the person who is standing before you on his trial, exciting you to greater vigilance to see that perfect justice is done as between him and the law. I am quite sure that you will see, that if he be innocent, you will, as you would in respect of every individual who stands before you upon his trial, take care that he shall not be convicted; but if, on the other hand, the evidence, when it is laid before you, shall satisfy your minds that he is guilty, it can in no manner or degree lessen the guilt of a person against whom such facts shall be produced, that he is in a station which should teach him better to obey the law of his country. So far as any such topic can be urged, on the one side or the other, to excite your utmost anxiety and most careful vigilance to ascertain the truth, I, on behalf of the prosecution, should feel that it is of great importance it should be exercised, because the truth, and that alone, ought to be, and I trust in all cases is, the object desired by the public prosecutor.
Gentlemen, the kind of charge is one that will require your very particular attention. The prisoner stands charged, “that he didillegally and feloniously man, navigate, equip, dispatch, use, and employ,” that is, that he did employ—that is the particular term to which I would direct your attention—“which in and by a certain Act of Parliament made and passed in the 5th year of the reign of his late Majesty King George the Fourth, intituled ‘An Act to amend and consolidate the Laws relating to the Abolition of the Slave Trade,’ was and is declared unlawful, that is, to deal and trade in slaves.” The other counts vary the charge in some degree, but in nothing that I believe will be material for your consideration, except that in the four latter counts he is charged with shipping goods on board the same vessel for the purpose of accomplishing the same object.
Gentlemen, it is now happily a matter of history of some considerable period back, that there was a contest in this kingdom by those who were anxious to put an end to what they rightly considered one of the greatest crimes staining human nature. On the 25th of March, in the year 1807, was accomplished that victory, I may say for humanity, by which, as far as the laws of this country could accomplish it, this kingdom was separated from that course of crime, which probably is almost the greatest blot that rests upon human nature; I mean, that that Act was passed which is called “the Act for the Abolition of the Slave Trade.”
Gentlemen, you are aware that before that time persons of wealth—for persons of wealth alone could engage in such an occupation, and unfortunately that which was called the slave trade was a source of great wealth—before that time no doubt persons of wealth engaged in that trade. That Act, as far as regarded any public Act, of course extinguished them; but from time to time, from that time to this present moment, though not of course engaged in public or in the immediate visible commerce which was the subject of condemnation by that Act, it has been more or less continued, and the course of the law has been from time to time by more and more stringent penalties as far as possible to put an end to it as respects this country; and it is impossible that you should not be aware that one great object of this kingdom in all its negotiations with all foreign countries is, as far as possible, to create one great combination among all the civilized part of mankind, uniting in extinguishing that which is a crime on the part of all engaged in it; and therefore it has become above all other things the duty of this Government, as far as relates to any individuals living within this kingdom, to the utmost possible degree to put an end to any connection with it of any sort or kind, and to prevent any persons who continue in this kingdom, and are subject to its law, from being in any way whatever connected with that which is considered a crime of the greatest magnitude; and it is with that view that the Act of Parliament which you have heard mentioned in the indictment, the Act of the 5th of George the Fourth, chap. 113, was passed, in order as far as possible to extinguish all connection of any individuals in this kingdom with the slave trade, and by a severe penalty to put an end to any such transactions. Indeed, when we consider the penalty, it is such as shows that the Legislature intended to render the punishment most severe:it is a penalty which subjects every person connected with that trade to transportation for fourteen years. But every single individual who, through any connection with that trade, is torn from his friends in Africa, and sent in the miserable way in which they must necessarily, if they survive the horrors of the voyage, be removed from that country to an interminable life of slavery—every individual suffers double and treble the penalty which is inflicted upon the criminal engaged in the trade; and therefore I feel satisfied that we shall not consider that penalty too severe, provided only the offence is fully proved: and the severity of the punishment ought to excite, I admit, to the utmost degree, your watchfulness to see that it is fairly and satisfactorily brought home to any man, because I take it any person on behalf of the prosecution who calls the attention of a jury to the enormity of any crime, does it under the most anxious caution that, in proportion as the crime is great, so the jury ought to extend their utmost care and attention to see that it is fairly and satisfactorily made out.
Gentlemen, you are aware that in cases of this kind the transactions must necessarily extend over some considerable time. The distance of the place to which the transactions ultimately relate, the difficulty of obtaining from Africa the various documents necessary to be produced to ascertain the guilt or innocence of the party, necessarily occasions the lapse of some considerable time; and in the present case it will be necessary for me to refer to transactions that extend over several years. In this particular case a trial took place in respect of the vessel in Africa, and afterwards in England, which necessarily occupied some considerable time; and no doubt the necessity of obtaining the requisite documents occasioned the delay for a still further lengthened period.
Gentlemen, the charge made against the prisoner is, that he employed a vessel in order to accomplish, that is for the purpose of accomplishing, the dealing in slaves, and that he sent goods for the purpose of accomplishing that object, namely, the trading in slaves; and the nature of the charge, which I will mention generally before I enter into the particulars of the evidence, is this, that the prisoner at the bar employed a vessel—and you will of course hear the manner and mode in which that was done, and observations will occur to you on the detail of the facts—that he sent goods in that vessel to supply persons who are merchants in slaves, individuals holding slaves in Africa, to enable them to keep the slaves while they were there, and to provide the means for bartering those slaves, so as to enable them to transmit them to Cuba, or the Havannah, as the case may be. Of course it need not be said for one moment that openly and publicly in this kingdom no man could do that, which to the eyes of all would appear to be dealing in slaves; it would be the object of attention of every man: and it is necessary I should detail the evidence I have, in order to show first, that this vessel named the Augusta, and the goods which were shipped on board that vessel were in fact for the purpose of supplying a factory situated at the Gallinas, a port on the Coast of Africa, and that the prisoner at the bar knowingly and willingly was the person who had employed thevessel, knowing that it was employed for that purpose. Of course the persons who were employed, the persons more deeply interested, were persons residing abroad; but we charge (and before you convict the prisoner you must be satisfied of that fact) that he knew the object, and lent himself to that object, and shipped the goods with that view.
Gentlemen, to give you an account of the progress of this vessel, I must direct your attention so far back as the year 1839. In the year 1839 a vessel, the Augusta as she has been since called, was then trading under the name of the Gollupchick, under Russian colours, fully equipped for slave trading. At that time she was captured by a gentleman, who will be called as a witness before you, Captain Hill, and taken into Sierra Leone as a vessel trading in slaves, of which there was no doubt. I have stated to you that she was sailing under Russian colours. At that time the captain on board was named Bernardos, one of the three persons named in this indictment, though not present. He was the captain, and the crew were entirely Spaniards. The Russians, you probably know, have not settlements requiring the dealing in slaves. She was taken to Sierra Leone to be condemned, it being believed that the Russian colours were employed merely as a pretence. The court before which she was to be tried was a mixed commission of Spanish and British. That court considering that they had no right to try the case of a vessel trading under Russian colours, she was not then condemned; the case was not there inquired into. It is sufficient to say that she was brought over from Sierra Leone to England with her crew, and with a number of the British crew who had taken her in there. Bernardos being the captain of her, he and his own Spanish crew came to England in that vessel. She was then perfectly equipped as a slave trader. Upon her coming to England the Russian consul claimed her as a Russian vessel. She was then sold at Portsmouth. She was sold to a person of the name of Emanuel, who purchased her for 600l., paying 30l.as the auction duty; the expense therefore would be 630l.Upon her being sold, part of the balance of the purchase-money was paid to Bernardos, which had been expended on account of the vessel.
When this vessel was brought to this port, a letter was written by Mr. Zulueta: the contents of that letter I have no means of knowing; we can do no more than give evidence of the writing of that letter. I shall show a letter was written; it will be for the prisoner at the bar or not to produce that letter. She was sold, as I have mentioned, to Mr. Emanuel; and upon that we have a letter written by the prisoner at the bar, Mr. Zulueta, to Thomas Jennings, in respect of the purchase of that vessel, and I will call your attention to that letter. The letter is dated London, the 20th of August, 1840. It is a letter that was found in the vessel when she was subsequently captured by Captain Hill. The letter is in these terms, dated “London, 20th August, 1840,” directed to “Thomas Jennings”—Thomas Jennings is one of the three persons indicted: he was the person who was captain of the vessel, and was captured in the vessel subsequently—“Sir, in reply to your letter of yesterday, we have tosay that we cannot exceed 500l.for the vessel in question, such as described in your letter, namely, that excepting the sails the other differences are trifling from the inventory. If you cannot therefore succeed at those limits, we must give up the purchase, and you will please act accordingly. Zulueta and Company.—Captain Jennings, Portsmouth.” The purport of this letter is, that Zulueta and Company would purchase the vessel if they could get her for 500l., but that they would give no more than 500l.for the vessel. Gentlemen, in fact I shall be able to prove to you that this being dated the 20th of August, 1840, very shortly after that, I believe on the 29th of August, Messrs. Zulueta paid for that vessel 650l.; and the way in which they paid that for it was this—they gave a check to Bernardos, the captain of her when she was captured under the name of the Golupchick, whom I shall prove to have received the money at the bank in London, and to have gone down to Portsmouth, and together with Jennings to have gone to Emanuel, and paid this money to Emanuel for the purchase of the vessel. There will, I believe, be no doubt whatever that that money came from the prisoner at the bar, Mr. Zulueta; for I shall be able to show that that very same money received by Bernardos, the very same notes amounting to 650l.were paid to Emanuel at Portsmouth. There will be therefore no doubt that the money was paid by the prisoner at the bar.
Gentlemen, the vessel remained for some time at Portsmouth; she remained there, I believe, till the beginning of October. There will be no doubt what was her object. Immediately after her purchase—almost immediately after—I shall be able to show you, by its having been found in the vessel, that there was a letter written byBernardos—
Mr.Kelly. Surely you are not going to read letters found in the vessel, without connecting the defendant with the vessel or with the letters.
Mr. SerjeantBompas. If you object to the letter, I will state the ground on which I conceive it is evidence.
Mr.Kelly. I object to no letter written by Mr. Zulueta or any of his clerks; but letters found months after, when all his connection with the vessel had ceased, surely you cannot read.
Mr. SerjeantBompas. I shall show that this letter was on board the vessel at Portsmouth on the 25th of September, 1840—a letter written by the man who received the money for the purchase of her to the captain, who was to conduct her to Africa: of course there are two facts here which it will be necessary I should prove; first, that her destination was the Gallinas; and secondly, that her object was to assist in the dealing in slaves: and it shall be my object to show, or I shall fail and you will give your verdict for the prisoner, that this was with the knowledge of Mr. Zulueta.
Mr.Kelly. Show that by proper evidence, but do not read letters which are not evidence.
Mr. SerjeantBompas. I have a right to read this letter; you may object, if you please.
Mr.Kelly. I do object, because it is impossible with effect to object to it hereafter. Here is a gentleman on his trial for felony: Ido not object to the reading of any letters from his house of business, though they may not have been written by himself; I do not object to any letter being read which was written by Mr. Zulueta himself, or any letter which my learned friend, Mr. Serjeant Bompas, can undertake to say Mr. Zulueta had seen or known; but letters written by third persons, over whom he had no manner of control—letters written by a person included in this indictment, but not on his trial, and which I have no means of explaining—cannot be evidence. Mr. Zulueta has no means of explaining this letter, the writer of which was unknown to him: and I submit that it would be more fair, and more according to the ordinary course of business in this country, if my learned friend were to arrive at the facts, which he says he can prove, by that which is properly evidence, and to leave the reading this letter to a separate discussion on any argument which may then be raised as to its reception in evidence.
Mr. SerjeantBompas. I do not object to my learned friend interposing in objection to the reference to this letter, because I am willing to admit that it is desirable to exclude every effect which might be produced by the reading of a document which may be objectionable; and while it is my duty to open that which I feel to be evidence against the prisoner, I will not open any thing as to which I feel a substantial doubt. The letter I am now proposing to put in is a letter written by Mr. Bernardos, the man who received the money after that first letter I have mentioned, and after all which occurred with respect to the purchase, and it has reference to certain objects in respect of his destination, and giving him—not instructions in the sense of ordering him—but directions and instructions as to the course of that voyage. My object is to show, that at the time the vessel was at Portsmouth, the destination was fixed, and he received direction in that respect from a person whom I have so connected with Mr. Zulueta as to show that that man Jennings was the purchaser with the money of Zulueta of this very vessel, Jennings being the captain, and ultimately one of the owners; and I shall show directions from Mr. Zulueta. I cannot conceive how that can be objected to.
Mr.Kelly. I undertake to say not a shadow of doubt shall remain on your Lordships’ minds that this is not evidence when the facts are before the Court. To be opening the contents of the letter, under such circumstances, I submit is not justified.
Mr. JusticeMaule. Brother Bompas, I do not think this is so clearly evidence that it should be opened to the Court. It is very difficult to decide whether a document is evidence or not till the facts are brought before us.
Mr. SerjeantBompas. Gentlemen, I am quite willing to be wholly under the control of the learned judges in the conduct of this case. I would not myself, as I think I ought not, to open that which is really substantially doubtful, and if I had felt this so, I would not have mentioned it at all.
Mr.Kelly. I am quite sure that my learned friend would not have done so if he had felt that it was open to objection. I am quite sure that my learned friend from the first desired that nothing should bestated, which in his opinion could not be brought home to the defendant himself.
Mr. SerjeantBompas. After the observation of Mr. Kelly, I will say no more with respect to this. I have to prove two things; first, what was the object of this vessel. I have to prove what it was intended to do. It may or may not in many instances be shown that there was the hand of Mr. Zulueta in what was done; but if I show to your satisfaction that he was aware of the circumstances, and was one of the parties, it is not necessary that I should show that his was the hand by which every individual act was done: therefore, I beg to keep these two things quite distinct. I shall show what was the object and destination of the vessel; and undoubtedly I shall show you, or I fail in this case, that he was conscious of the object and intention of the employment of the vessel.
Gentlemen, upon the vessel, at the time she was at Portsmouth and when she was sold, there were on board her part of the equipments which had previously existed of the Gollupchick. In order in one way to equip a vessel directly for slave trading—to put her in a situation in which she could take slaves in—it is necessary that there should be the means of very considerable supplies of water. There are commonly leagers. It is not necessary there should be leagers, unless when the occasion requires the carrying an extraordinary supply of water; where that is required, it is necessary there should be the means of carrying such a quantity of water in the vessel; and there were on board this vessel leagers—that is, large vessels containing many hundred gallons of water, ten or twelve or fourteen feet in diameter. At Portsmouth several of the leagers then on board were taken to pieces, and the staves and heads left on board the vessel. You are aware that it would be quite impossible for such a vessel, with leagers, or any fittings up of that kind, to leave this kingdom in order to go to a place on the coast of Africa, where it is known the slave trade is carried on; it would be quite obvious what their object was; and these vessels were accordingly taken to pieces, and the materials left in the vessel.
It was observed, also, that the vessel afforded the means of having slave decks placed. Where a vessel leaves a place, such as Spain, or some place where she may leave with impunity with all her equipments complete, they have slave decks in the vessel—that is, decks with about two-and-thirty inches from one deck to another, in which the slaves lie. These they were not able to set up under these circumstances; but there are decks placed that as many as possible may be carried. These decks could not be existing in this country: they could not be allowed to go from this country. There are, however, places, and some screw-bolts where they can be placed, and by which they could be fastened: they might be speedily put in on the coast of Africa, so as to fit the vessel for carrying slaves there: of course it could not be done here, but the screw-bolts might be put in, and the slave decks fixed in an incredibly short space of time; and thus she might be immediately prepared for receiving the slaves when she was in Africa.
I shall also, I believe, show that a person was applied to at Portsmouth to enter to go to the coast of Africa. When she was there, letters were received by Jennings; and I shall prove certain circumstances by a witness, who I shall call before you, who was present when the vessel was taken, a letter found on board her, which was written from London: and I may state that at once, as my learned friend has admitted that whatever was written by the house would be evidence against the prisoner at the bar; and I should state that he himself said before the Committee of the House of Commons on his examination, that he himself had the management of the whole of this business. I will read the exact words—“I have managed all this business;” therefore there can be no doubt that what came from the house he is responsible for. The letter to which I will call your attention was received on the 26th of September, 1840.
Mr.Kelly. My learned friend will pardon me for a moment. I have said I shall not think it right, in a case of this sort, to interrupt my learned friend in any attempt he may make to read documents which proceeded from the house, but I must not therefore be taken to agree to their admissibility.
Mr. JusticeMaule. You will not consider the admissibility of the evidence as established until it is offered in evidence.
Mr. SerjeantBompas. Of course every thing I read, you will consider subject to proof. If I have been misled in any fact, you will remove it from your minds. Not that I would state any fact, if I did not believe it to be founded in truth. This is dated—“London, 26th September, 1840. Captain Thomas Jennings, Portsmouth. Dear Sir,—We have received your letter of yesterday, whereby we observe that the sum we have remitted you will not be sufficient to cover all the expenses to clear the ship. We much regret you have omitted mentioning the sum you require, which prevents our remitting you the same by this very post, thus causing a new delay in leaving that port, so contrary to our wishes. You will therefore write to us to-morrow, that we may receive your reply on Monday morning, informing us of the amount necessary to finish paying all your accounts and expenses, to remit you the same by Monday’s night post, in order that you may be able to sail for Liverpool on Tuesday or Wednesday at the furthest. You must not omit stating the amount required; and waiting your reply, we remain, very truly, dear sir, your obedient servants.” Then the signature which was to that letter is cut out. Then it says, “According to our Liverpool house notice”—the prisoner, Mr. Zulueta, is connected with a house at Cadiz, as well as a house in London—“According to our Liverpool house notice you will go there to the Salthouse Dock,” superscribed “Captain Thomas Jennings, Broad Street, Portsmouth.” That letter was regularly received in the course of business, as to which business Mr. Zulueta says, “I managed it.” I believe I shall show you the handwriting of a part of it; but the signature was cut out. I believe I shall show it was cut out previous to its being found.
This being the letter, Mr. Zulueta having furnished the money for the purpose for which it was demanded, and having desired that Captain Jennings will send up an account of all the money expended,and that he should go to the Salthouse Dock at Liverpool; accordingly he went to the Salthouse Dock at Liverpool. It is impossible Mr. Zulueta’s name should be mentioned as the owner of a vessel used for such a purpose. It is quite clear, that if he knew it, his name would not be used as the owner of the vessel, and therefore this vessel was purchased in the name of Thomas Jennings. How far he was really the owner you will be able probably to form an opinion from the remainder of the evidence with which I shall furnish you. When it was purchased, no papers of any kind were handed over. She was a condemned vessel. She was bought without any register, and taken as a Russian vessel, and there being no evidence of ownership, she was purchased as such.
Gentlemen, she went to Liverpool; and when she went to Liverpool, I shall have to call your attention particularly to what took place at Liverpool. At Liverpool a charter-party was entered into, to which I will call your attention:—“Memorandum of the charter-party. London, 19th October, 1840. It is this day mutually agreed between Mr. Thomas Jennings, master and owner of the good ship or vessel called the Augusta, of the burthen of tons, or thereabouts, now lying at the port of Liverpool, and Messrs. Pedro Martinez and Co., of Havannah, merchants.” Pedro Martinez and Co. were merchants, having a house at Cadiz. It will appear from Mr. Zulueta’s own statement that they had a house also at the Havannah, that they were known slave dealers. According to Mr. Zulueta’s own evidence, he believed at the time they were slave dealers.
Mr.Kelly. If you say that, I beg you to read the evidence. He never did say that.
Mr. SerjeantBompas. “Do you know the nature of the trade of Pedro Martinez at the Gallinas?—I know from general report that Don Pedro Martinez himself is supposed to deal in slaves, and I believe it is so.” That is at page 682,question 10398.
Mr.Clarkson. That is an examination in 1842.
Mr.Kelly. These are statements made in 1842. Have the kindness to read the answer to10413, in the next page.
Mr. SerjeantBompas. Every word he said in evidence will be read; but an interference in that form and that manner is not proper, and I shall not submit to it.
Mr.Kelly. I merely meant to correct what I supposed to be an inadvertent mistake.
Mr. SerjeantBompas. My learned friend is quite right to interfere, if he thinks I am under a mistake. My object is to call your attention to what he said at the time; every word will be read to you, and you will form your own opinion upon it. “Is he known at the Havannah as a dealer in slaves?—I do not know, but I believe so; I do not know why it should not be known at the Havannah, if it is known in other parts.” My learned friend will make his own observation upon that, I shall read that as evidence before you; you will consider whether it is sufficient proof that he knew that Martinez & Co. dealt in slaves.
Gentlemen, I was reading to you the charter-party of the ship:it proceeds in these words—“That the said ship being tight, staunch, and strong, and every way fitted for the voyage, shall, with all convenient speed, load from the factors of Messrs. Pedro Martinez & Co., a cargo of legal goods, which the said merchants bind themselves to ship, not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and furniture; and being so loaded, shall therewith proceed to Gallinas, on the coast of Africa, or so near thereunto as she may safely get, and deliver the same; after which she may be sent on any legal voyages between the West Indies, England, Africa, or the United States, according to the directions of the charterers’ agents (restraint of princes and rulers, the act of God, the Queen’s enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation of whatever nature and kind soever, during the said voyage, always excepted). The freight to be paid on unloading and right delivery of the cargo, at the rate of 100l.sterling per calendar month that the ship may be so employed, commencing with this present month, all port charges and pilotages being paid by the charterers, and days on demurrage over and above the said laying days at pounds per day. Penalty for non-performance of this agreement 500l.The necessary cash for ship’s disbursements to be furnished to the captain free of commission. The charterers to be at liberty of closing this engagement at the end of any voyage performed under it on settling the freight due to the vessel. The captain being indebted to the charterers in certain sums as per acknowledgment elsewhere, the freights earned by the vessel to be held as general lien for such sum, and in any settlement for such freight, the said advances to be deducted from the vessel’s earnings.—Thomas Jennings.”
Then, here is the addition to the charter-party:—“I, Thomas Jennings, captain and owner of the ship ‘Augusta,’ of this port, hereby I declare, I have received from Messrs. Pedro Martinez & Co., of Havannah, through Messrs. Zulueta &, Co., of this city, 1,100l.sterling for the disbursements of the said ship, her fitting out and provisions, which I engage myself to repay with the earnings of the same, according to the charter-party entered this day with the said gentlemen, and under the following conditions:—1st. All the earnings of the ship will be accounted for and applied to the said Pedro Martinez & Co., they furnishing the necessary cash for all expenses, repairs, provisions, and crew’s wages, including 15l.per month for my salary as captain. 2nd. At any time, when the said gentlemen may think proper to close the charter-party, I will make out the account, and deliver to them, or to their representatives, a proper bill of sale for the said ship and all her appurtenances, to cover the balance due to them in the said account. 3rd. That I am in no other way responsible for the settlement of the above-mentioned debt, but with the said ship and her earnings; and that the said Messrs. Pedro Martinez & Co. will take on themselves the insurance and risk on the vessel.—Thomas Jennings.”
Now, Gentlemen, it will be most material for you to consider the effect of this charter-party, and what is called the loan. It is nominally chartered by Thomas Jennings, as the captain of the vessel, to PedroMartinez & Co. through Zulueta & Co.; and Zulueta & Co. are the persons employing that vessel: there can be no doubt of that. Now what is the effect of these two documents? Is it that Jennings is the real party who engages to pay? No such thing. “I am in no other way responsible for the settlement of the above-mentioned debt, but with the said ship and her earnings; and that the said Messrs. Pedro Martinez & Co. will take on themselves the insurance and risk on the vessel.” So that he is not in the slightest degree indebted to them: he is not bound to pay, but it is only that he is indebted to them on the vessel. Can he say I will pay you the money and keep the vessel? No; whenever Messrs. Martinez & Co. choose, the vessel is to be made over to them. Can he make over the vessel and apply the money to his own use? No; he has only 15l.a month, and can be required to make over the vessel whenever they please. But that would be the ordinary transaction in peace time; the money would be advanced to him; the vessel would be the security for it at any one moment at which Martinez & Co., or their representatives—that is, Messrs. Zulueta & Co.—might call upon Jennings to deliver up the vessel to them. He is always accountable to them for the earnings of the vessel, and he is in no respect personally responsible. The question you will have to decide is this: Is this a method by which it shall appear that Thomas Jennings is the owner of the vessel, so that no other person shall have a right to say that he is the owner? He is to appear to be so; but the other parties have a right to say, “Give the vessel up to us;” he borrowing, but having nothing but the vessel; he being to receive his wages of 15l.a month as captain. It will be undoubtedly a very material consideration whether this is matter of concealment; a mode in which Jennings is to be made the apparent and not the real owner, or whether he is the realbonâ fide, owner. It is clear he would be in no respect responsible under this arrangement entered into at Liverpool. You will have, in connexion with the evidence, to examine the statement made by Mr. Zulueta. The letters, which will be read, undoubtedly treat Zulueta & Co. as purchasers on behalf of Martinez & Co.; and the charter-party is made by them as agents for Martinez & Co., by which the factors are to ship these goods for Africa as agents for Martinez & Co.
Gentlemen, the vessel went to Liverpool; she was there loaded in the ordinary course, according to the account given by Mr. Zulueta in his evidence. He is asked, “You did not imagine that in being the instrument of sending lawful goods to any part of Africa, you were doing any thing which required concealment?—Nothing at all of the kind; and the proof of that is, that in the bills of entry in Liverpool any body could see our names as consignees of the vessel, and see entries made in our names of every thing.” No doubt, gentlemen, according to that charter-party, if it was abonâ fidecharter-party, shippers might ship goods on board the vessel in their name; every thing would be in their name; and the papers on board that vessel might be in the name of Zulueta, and not in the name of Captain Jennings: but if Captain Jennings was the owner of the vessel, and Messrs. Zulueta the factors of Martinez, he would haveonly to receive the goods shipped on board that vessel by Messrs. Zulueta. It is clear a cargo was put on board that vessel, and if she was going on a legal voyage, there is no reason why every thing should not be in the name of Messrs. Zulueta, and why the ship’s papers should not be in their names as the owners of this vessel. But all the ship’s papers were made out in the name of Thomas Jennings; the bill of lading is made out as shipped by Thomas Jennings; and none of the shipments are made by these factors, who, according to the charter-party, were to ship the whole. No doubt it will be for you to consider how far that is a wilful act of concealment or not.
Gentlemen, this vessel was going to the Gallinas. The Gallinas is a port in Africa, about 200 miles from Sierra Leone. It is necessary you should know the nature of that port. It will be impossible but that persons engaged in trade should know the nature of that port. It is a settlement, or rather a native State, that consisted of a harbour and a river, and it is called the Gallinas. The sole trade carried on there is the slave trade. It consisted of a few, I think there were five, of what are called barracoons. It is hardly necessary I should state that a barracoon is a place in which slaves are kept; that slave traders by attacking a village, or other means, take possession of the people, who are taken down to warehouses erected for their use—barracoons as they call them—places where they are kept until an opportunity arises, whereby they may be shipped off either to the Havannah or to Cuba: the two great places to which slaves are sent from this place are the Havannah and Cuba. The place consists of five barracoons, as they are called; five warehouses, where the slaves are kept. It is not a trading place in any other way. Slaves are purchased by the barter of cotton goods or other goods from England, or by doubloons, which are raised by drawing bills on persons in England. There is no other trade but the mere slave trade. In the barracoons and places, these unfortunate people are kept until an opportunity arises for selling them, to be disposed of either in Cuba or the Havannah. One was kept by a person of the name of Rolo, another by a person named Ximines, another by Alvarez, another by a person of the name of Buron, and another by a person of the name of François. This vessel and cargo therefore were dispatched to a place which was wholly a slave trade establishment. There is no other trade whatever. I believe there was not at that time, nor had been long before. Since the slave trade has been stopped there, it is somewhat a different thing; but at that time it was a place used entirely for the slave trade, and the goods which were sent there were used for barter, and the doubloons for which the bills were drawn were employed in the purchase of slaves. The three consignees of this vessel were the three persons I have first mentioned, three persons having barracoons in the Gallinas. It is possible that a name of a fourth may appear in the evidence. You will remember that the fourth is named Buron. The vessel therefore went out from England with a cargo consigned to these three persons, Rolo, Ximines, and Alvarez.
Gentlemen, when the vessel got some little distance from England, I believe a hundred miles from Cork, she encountered a considerable gale: upon that the captain determined to go to Cadiz; the wind wasunfavourable for Cadiz: she was about a hundred miles from Cork, and there was a perfect facility of going to Cork or to Falmouth, where they might have arrived in the course of a day. It would take 18 or 19 days to go to Cadiz, I believe 19; but the captain determined to go to Cadiz, the crew resisted this, and they came to the determination that some of the crew should be discharged at Cadiz, Mr. Zulueta having a house at Cadiz, and Mr. Martinez too; and it was at Cadiz she received the dispatches which were found on board, as to the consignees, as to what was to be done with the shipment on board, and what was the object of the shippers. Part of the goods appear to have been landed there by the firm of Zulueta & Co., and Mr. Zulueta received an award for the injury which had occurred, the injury the cargo had sustained in that gale. I believe the principal part of the tobacco was landed. It will appear by the bill of lading the shipment of goods was by these three persons. The tobacco was landed by Mr. Zulueta of the house in Cadiz, and the house in London received compensation for the loss upon that, they having shipped the same in London.
Gentlemen, the vessel afterwards sailed from Cadiz. She arrived, I believe, about the 6th of December, and sailed in the early part of January. She was captured on the 7th of February, 1841, by Captain Hill, when she came near the coast of Africa. It happened that Captain Hill, whose duty it was to capture those vessels, either Spanish or English, which had dealings in slaves, met with her, and he was not a little surprised at seeing so soon a vessel he had captured as a slaver, under the name of the Gollupchik, come under English colours with a new name. He boarded her, and saw Jennings on board. She was not then, of course, to use the technical term, equipped as a slave trader; she having sailed from England with goods on board, it was impossible she should be. He asked to whom she was consigned: Jennings refused to tell.
Mr.Kelly. Are we to have the conversations with Jennings, the master, long after the felony is supposed to have been committed by Mr. Zulueta in England? Is the conversation with every person, in every quarter of the world, to be given in evidence?
Mr. SerjeantBompas. I am not going into any conversation between the master and the captors, merely the simple fact. Captain Hill being about to seize the vessel, the dispatches of the vessel were at length brought out with great reluctance; the captain, however, delivered up the letters, and told Captain Hill those were the letters to the consignees. They are letters with certain directions.
Mr.Kelly. My Lord, I must object again to what I conceive is most irregular on the part of my learned friend, who is proposing to give in evidence that which took place between Captain Hill and Jennings. My learned friend has opened a very complicated case, and now my learned friend attempts to describe the contents of papers given by the house of Martinez & Co. to the captain, some months after the vessel had sailed from England. Mr. Zulueta, at the bar, is charged with a felony in having equipped and employed this vessel for the purposes of the slave trade. My learned friend is opening the case against him on the charge of felony, and he issupposed to be affected by instructions given by other persons months afterwards—persons in Cadiz, over whom he had no control—instructions which he never saw until they were alluded to in certain proceedings in which he had no concern whatever. My learned friend is stating a part of the contents, and stating them most incorrectly. I apprehend Mr. Zulueta is undoubtedly liable for the consequences of any act he has done, any act he has sanctioned, any thing done by his firm with his knowledge; but that he cannot have used as evidence against him papers delivered months after the supposed commission of the crime, and long after he could have interposed—months after the vessel left England. My learned friend knows he has no evidence affecting the defendant touching her afterwards; but he is opening the contents of papers given by a foreign merchant months afterwards.
Mr. JusticeWightman. I did not understand Brother Bompas to state that the prisoner was aware of the contents of those papers.
Mr.Kelly. My learned friend does not pretend now to state that, but he describes them as containing instructions given to the captain; they were not instructions given to the captain.
Mr. JusticeWightman. He does not state that they were.
Mr. SerjeantBompas. It is important that the objection should be made, if at all, now. The evidence no doubt is most important, and I thought it was possible that my learned friend might object. It is fair to the understanding of the case that the objection should be stated, and I am obliged to my learned friend for taking the objection now, if it was to be taken. I wanted to call his attention to it, not wishing to allude to the contents of those documents unless they are admissible in evidence; but it will be quite impossible to call the attention of the jury to these facts, unless I know whether the evidence is admissible.
Mr. JusticeMaule. How can we decide that until we know what they are?
Mr. SerjeantBompas. My object is to offer them as evidence in the case, and therefore to open them as evidence.
Mr.Kelly. My learned friend is stating what I did not understand him to state before, and therefore your Lordship will allow me to place this point of the case on its proper basis. When he is opening this part of the case, in order that if there is no doubt on the admissibility of the evidence it may be at once taken, I do at once make the objection; and I think your Lordship will pardon my saying a few words more on that which my learned friend considered rather an interruption, or a protestation, than an objection. My learned friend charges Mr. Pedro de Zulueta with having committed a felony, that felony having been committed in England in the months of July, August, and September; that is, that Mr. Zulueta equipped and dispatched a vessel, and shipped goods on board that vessel, for the purposes of the slave trade. That vessel left England, I think, in the month ofOctober—
Mr. SerjeantBompas. The 9th of November.
Mr.Kelly. We shall have no dispute on those facts. That vessel, purchased under circumstances which will probably appear moreclearly in evidence. It is stated by my friend that Zulueta and Company purchased the ship; no doubt the house of Zulueta and Company interfered as agents for the house of Martinez and Company. That vessel was dispatched from England, and left England in the month of November, 1840. Whatever the prisoner at the bar has done in respect of the dispatching of that vessel, was done and completed then. The crime, if he committed any, was completed before the month of November, 1840. That is the charge upon which he is now on trial. I quite agree that, if since November, 1840—if instantly he had held any conversation—if he had written any letter—if he had held any conversation that might be used against him as evidence of the purpose for which he used and dispatched that vessel, which he had dispatched in the month of November,1840—
Mr. JusticeMaule. With respect to that portion of the opening of my Brother Bompas, the question is pretty much the same as with respect to that mentioned before.
Mr. SerjeantBompas. Will your Lordship just hear how I present it?
Mr. JusticeMaule. It is open to the same mode of dealing with the matter depending on the question—whether it is so clear that it will be admissible, when it comes to be offered in evidence, as that it ought to be stated. If Brother Bompas proposes to argue that, he may go on now.
Mr.Kelly. I am in your Lordships’ hands; it is immaterial to me when I am heard. I was only going to add, which will go much to the argument, that on a common civil case, something written, said, or done by another person in a distant country, some months after the time when he is said to have committed the offence charged, is no evidence against him. If it were, Mr. Zulueta might have (as I believe he was), he might, with the rest of his firm, have been engaged in shipping goods on a lawful merchandise according to the British laws, in consonance with natural equity and right, and the character of the transaction might be completely changed. I can very easily imagine a case in which a British merchant—nay, a British trader of any kind—may ship a quantity of muskets to the coast of Africa, or the coast of Spain: nothing can be more simple than the proposition—a trader may ship a quantity of muskets to Africa, to Spain, or to France; he receives the goods, and ships the goods; and now he has done all, and the ship sails; and he may have died after the shipment; another person possesses himself of those muskets, and he employs them in war against the Queen of Britain—Is that to be used in a criminal charge of felony against him? But that is just the case here. These gentlemen of this house of Zulueta and Company are concerned in shipping a quantity of goods—I might have taken the objection whether as principal or agent, but I will not raise that—here is the ship, and here are the goods; they ship them for the coast of Africa: the shippers remain in England; they have nothing more to do with the transaction; the vessel putting in to Cadiz, whether by previous design or stress of weather I will not say; another person, over whom the shippers have no more control than they have over the inhabitants of the kingdom of Spain, givecertain orders, which I will suppose contemplate an illegal object—Are those to be used as evidence against the shippers here on a charge of felony? My Lord, I have done; I shall wait until I hear how my learned friend can justify the giving that in evidence against Mr. Zulueta.
Mr. SerjeantBompas. My Lord, if I had any reasonable doubt that I could give this in evidence before your Lordships, I conceive I ought not to interfere with the view your Lordship has thrown out with respect to the letter I before tendered; but I apprehend there can be no doubt. I may be mistaken in the view I have taken: I may be wrong.
Mr. JusticeMaule. Unless you feel it quite material to the case to state the nature of the evidence you propose to offer, I should think that in a matter of this kind it might be advisable to abstain from the statement of it. The circumstances which a learned counsel proposes to offer in evidence ought to be such as leave no doubt in his mind that he shall be able to bring them home to the prisoner, or that which is not ultimately made evidence against the prisoner may make an impression which is not justified. If you have any doubt that you shall be able to make this evidence, Mr. Kelly is justified in his objection, and so long as there is a doubt whether it is admissible, the Court think it is not fit it should be stated. If in your opinion that is doubtful, you have a right to be heard; but if you consider this as likely to be a long case, it will be desirable to abridge it so far as you can, to bring it within such a compass that it may receive the attention of the jury, and that time should not be unnecessarily occupied in these discussions.
Mr. SerjeantBompas. Gentlemen, I am always most ready to adopt the suggestion which the Court are kind enough to hold out. I feel that a counsel, standing for the prosecution, stands in a somewhat different situation from another person, and their Lordships, sitting to do justice, and fairly taking care that if there be a doubt, that doubt shall be taken for the benefit of those charged with a crime. I feel that as to the admissibility in evidence, if there is a doubt, it ought not to be stated to the jury. It is not for me, as counsel for the prosecution, to say that their admissibility is perfectly certain. It would be very hard if the view taken by counsel in a criminal prosecution were not to be regulated by the judgment of the Court. It is enough that I should state, that, in my opinion, it will be necessary that these letters should be admitted in evidence, and that you should direct your attention particularly to them. It will place an additional obligation on the learned judges at a future stage, if I am not allowed to call your attention to them, to see that they are so brought before you as that you should understand them. There is no weight intended to be given to the evidence beyond that to which it is entitled, but it will be my duty to bring them fairly to your understandings, when I tender them, that you may see the bearing of them. The reason of my offering them in evidence will be given when I do offer them in evidence. This is not a decision that they are not admissible in evidence, but that it is better I should not open to you what may leave an impression which ought not tobe made, unless I show that this is evidence. By the course taken, if this is not evidence, there will be no impression made. There is no doubt that very great importance to the prosecution will rest on the decision of this question; it will have a very great effect in the decision of the question, whether from this time or not there may be perfect and absolute impunity to any person who chooses to conduct a trade of this kind, provided only he is not so unwise as to advertise himself before-hand as a man who has connexion with the ultimate procedure of the vessel. Gentlemen, at present this matter is perfectly in debate. I shall offer this to you in evidence, and then it will be shown how it applies. This vessel, as I was stating when I mentioned certain things found on board, was captured by Captain Hill, was carried to Sierra Leone, and from thence brought home to England, and there was an end of the voyage.
Gentlemen, one material question that you will have to consider when the case is before you is—What was the object of the destination of the vessel? For what purpose was the vessel sent to the Gallinas? Was she sent for the purposes of fair trade, or was she sent to the Gallinas with goods to be used for the purposes of the slave trade? No doubt the vessel would not be perfectly equipped on going from Portsmouth; but the state of the vessel then you will have to consider, and I believe I shall be able to show that at that place the leagers were taken to pieces and put on board in such a manner as that they could be easily put together when she got out, and that there were existing in the vessel a very considerable number of shackles usually used for the purpose of confining slaves. You are aware that the slaves, the male slaves, are almost always put into this situation between the decks, and confined also by shackles. I shall be able to show that the leagers were taken to pieces and stowed on board the vessel, and that there were a very large number of shackles on board the vessel. Now, what was the object in going to the Gallinas? If any directions which were given in respect of that object are not brought out, you must find it out as well as you can in the circumstances of the vessel. She was going to the Gallinas. Mr. Zulueta was acting on behalf of a person whom he admits he believed to be dealing in slaves. The whole view of the case must be left in some degree to you, after all the evidence laid before you, supposing the evidence to which I have called your attention to be ultimately received.
Gentlemen, it will be my duty to call your attention to the evidence which Mr. Zulueta volunteered before the Committee of the House of Commons, and I can only say you will have to keep it in mind as applicable to the other evidence if it is admitted. If it is not admitted, you will take it as it is applicable to the case. I have mentioned one or two sentences, and my learned friend has interfered to represent that I was giving the effect of that evidence unfairly before you. I shall call your attention to the material parts, and leave you to apply it to the rest of the evidence. He was examined on the 22nd of July, 1842. It would appear, from the questions proposed to him, that some persons had made statements before the Committee of the House of Commons, which, being intended to reflect upon him,had been inclosed to him for his consideration, and that he felt himself obliged to appear to meet those statements. That is the way in which the evidence was given. He was not summoned before them—they could hardly summon him to give an account of that which was intended by previous evidence to reflect upon him; but, under those circumstances, he went before the Committee of the House of Commons. The Chairman says, “You have seen some statements that have been made to this Committee upon the subject of a transaction in which your house was engaged; have you any observations to offer upon it?—I received from the Clerk of the Committee a letter accompanying a copy of certain evidences, which are Mr. Macaulay’s evidence of the 10th of June, the 14th of June, and the 15th of June; and Captain Hill’s evidence of the 29th of June, the 4th of July, and the 6th of July. I would beg first of all to refer to the letter which I had the honour to address to the Chairman. My reason for wishing to be examined before this Committee was, that the statements contained in the evidence which I have mentioned are all of them more or less incorrect, some of them totally so. I will begin by stating what has been the nature of our, I will not say trade, for we have not had a trade ourselves, but of our connexion with the shipment of goods to the coast of Africa. We have been established as merchants for upwards of 70 years in Spain, for nearly 20 years in this country, and we have had connexions to a large extent in Spain, and in the Havannah, and in South America, and several other places; among them we have had connexions or commercial intercourse with the house of Pedro Martinez & Co. of the Havannah, and with Blanco & Cavallo, of Havannah. With them we have carried on a regular business in consignments of sugars and of cochineal, which they have made to us; and in specie received by the packets from Mexico and other places. We have several times acted for them here in this country, buying raw cotton for instance at Liverpool, and re-selling it very largely; that has been principally with Pedro Martinez & Co.” “They are general merchants?—They are general merchants, and their transactions with us have been of that nature. As general merchants we have bought stock here for them rather largely; and in the course of those transactions we have received orders from Don Pedro Martinez & Co., of the Havannah, and from Don Pedro Martinez, of Cadiz, to ship goods for the coast of Africa; never from Pedro Blanco, and never from Blanco & Cavallo.” “Have you received orders from Pedro Martinez for shipments for the coast of Africa?—Yes, in the course of business we have received orders to ship goods upon the funds in our hands belonging to them, and we have shipped the goods described in the letter, and sent the bills of lading to Pedro Martinez; but, beyond that we have never had any returns from the coast of Africa, nor any control of any kind from the moment the cargoes left the ports of this country.” “You have had no interest in the result of the adventure?—No, nor any notice, nor any acquaintance, nor any correspondence with any one upon the coast; we have never had any kind of knowledge, either subsequently or previously, of the shipments, except the mere fact of buying the goods and shipping them.”
It is quite correct that they had had communication, as will appear subsequently by evidence in respect of this vessel; they actually received the amount of the insurance on the damaged goods landed at Cadiz. “Your whole interest was a commission upon the transaction?—Entirely. The extent of those transactions has been so limited in the course of nearly 20 years that we have been in this country, that the amount of the invoices that we have sent out has been something like 20,000l.or 22,000l.in the course of all that time. That is one part of the operations we have performed. The other operations are the acceptance of bills drawn by people on the coast; among them Pedro Blanco when he was there, upon ourselves, on account of Blanco & Cavallo, of Havannah, upon funds which Blanco & Cavallo had in our hands; for instance, the people at the Havannah, or in Spain, open a credit with us, and we accept the bills of the parties on that credit with us just the same as we should do with any other correspondent in any other part.” You will hear probably in evidence who this Pedro Blanco was. I shall prove that he was a person extensively engaged in the trade in slaves.