Where was she going to?—The coast of Africa: he said he would not go back, that he should lose his crew if he put back.
Mr.Kelly. They said it was not safe to go to the coast of Africa?—Yes.
Mr. SerjeantBompas. Where did he sail for at last?—Sailed to Spain.
Was the wind fair for Spain, or not?—I do not know.
How many days were you before you got to Spain?—We were some time before we got to Spain.
Can you tell whether it was a fortnight or three weeks, or between the two?—I dare say it was a fortnight, or more.
You know the port in Spain; Cadiz, was not it?—Yes.
Were any of the men discharged at Cadiz?—Yes, the best part of them.
Do you know whether that was arranged before they went to Cadiz, at the time of the storm?—It was all the captain’s misconduct.
What was?—Their leaving of us.
How long did you remain at Cadiz?—We remained there, I do not know exactly the time, a month, or it might be two months.
Was any of the cargo discharged at Cadiz?—Yes; the best part of it was moved out of her into small vessels.
There was some tobacco that was damaged, was there not?—Yes.
Did some part remain?—I do not know.
You acted as cabin-boy, we understand?—Yes.
You were on board this vessel at Portsmouth?—Yes.
Do you recollect a number of large water-casks, and a good many small ones, that there were on board the vessel at Portsmouth?—Yes.
That Bankes and his son were working at for some time?—Yes.
You sailed with them on board from Portsmouth to Liverpool?—Yes.
Were not they sent out at Liverpool, and sold to Mr. Toplis, the agent, who shipped the goods?—I know very well they were put on shore.
And the vessel sailed without them?—I am not very sure whether they were put on board again.
Did you ever see them again?—No.
Were there not some iron bolts and screws, which had been on board the vessel formerly, made up and thrown overboard while the vessel remained at Portsmouth?—No, not to my recollection.
You do not know any thing of that kind?—No.
Do you remember any thing about the quantity of water that was actually on board; had they much or little water?—When they sailed from Liverpool they had a great quantity of water.
Were the water-casks carried all the way or not?—We had several great puncheons on deck at the time of the storm; we knocked one or two of the heads in to help the vessel; one or two of the casks went overboard.
You had been at sea before?—Yes.
Had you a less or a greater quantity ofwater?—
Mr.Kelly. How often had he sailed, and had he been on the coast of Africa?
Mr. SerjeantBompas. How often had you been at sea before?—I had been to North America before.
You had never been to Africa before?—No.
You do not know what is usual on the coast of Africa?—No.
Were you commanding on the African coast at any time?—I was commanding on a district of the African coast.
Did that embrace the river Gallinas?—The river Gallinas was within the district.
How long, while you were on that coast, were you acquainted with that river?—I was myself constantly in sight of the river for a period of eight or ten months.
Had you also, besides the period you were opposite that river, other opportunities of observing what was going on there?—Whenever I was not there myself, I left a vessel to watch the place and report to me what occurred.
We have heard there were some slave factories, barracoons there?—There were no less than six slave factories on the shore.
According to your observation, what was the trade carried on there?—There was no trade whatever but the slave trade; exclusively the slave trade.
You did not yourself know the proprietors of the barracoons?—I did not know any of them personally.
Did you ever see any of them in their warehouses?—No, except one.
Who was that?—I believe it was Martinez, but I am not certain: the name we knew him by was Pedro Fernandos.
Mr.Kelly. You will state what you do know?—The name we knew him by was Domingo Fernandos.
Mr. SerjeantTalfourd. Did you know Ignatio Rolo?—Yes, I have seen him at Gallinas.
What did he do at the Gallinas?—He was landing from the Saracen when I saw him.
That was the vessel commanded by Captain Hill?—Yes.
Did you ever see him on any of those factories?—I never saw him, except at the factory at which he landed.
Did he land at the factory?—He was landed in a man-of-war’s boat.
Had you means, while in the river Gallinas from time to time, of ascertaining how many towns or villages there were as far up the river as you went?—There were, to my knowledge, some three or four or five towns on different branches of the river.
How high up did you go yourself?—I went up about ten or twelve miles, I suppose.
You say that as far as your knowledge extends there was no other trade there but the slave trade?—My positive knowledge is that there was nothing but the slave trade there.
Do you mean to represent that you knew all the ships containing British merchandise consigned to that place, and what became of the merchandise which was landed by the ships? Have you no doubt that you knew enough of what took place at that place, to be aware what became of the merchandise landed from every ship?—The question involves two or three points; I must answer in the first place, that every vessel that landed cargoes there I knew of.
During what period?—During a period of ten months most particularly.
What ten months was that?—From the month of March or the month of April, 1840, until the month of February 1841.
Have you never heard of a ship, called the Supply, landing merchandise there to the value of between 13,000l.and 14,000l.?—Not during that period. I beg not to be misunderstood; I do not deny that vessels have landed cargoes there to a large amount, but I say the slave trade is the exclusive business there: there is no produce.
That is inference, perhaps, hardly warranted by your premises: is there any thing in the nature of the case to prevent the importing merchandise for consumption by the natives on the spot, and is it not consumed by the natives?—I say no produce is exported.
Mr. JusticeMaule. The question is, what was done with the merchandise; was it given in exchange?—There were two articles of import, which are the one eaten, and the other used by the slave traders to buy slaves.
Mr.Kelly. What I understood you to say was, that you are not aware that there is any produce exported; but I ask whether articles are not imported to be consumed by the natives?—I do not mean to say a few hundred weight or a ton is not exported, but nothing to be called produce or exports.
You do not say there are not a few hundreds of tons?—I say not a hundred weight.
That was the case during the ten months you were there?—I have known the Gallinas since 1835. I was in charge of that station during two years; during that time I was ten months stationed at Gallinas, and had reports from the place.
When you say there is no trade carried on there but the slave trade, do you exclude from your observation the shipments of goods from England landed there and sold for money? for consumption there, sold for money?—If you put that question again, I shall understand it.
I wish to ask you, as you state that there is nothing but the slave trade carried on, that there are no exports, whether the trade may not consist of landing goods and selling them for money, as well as purchasing goods there, and carrying them away?—Just so.
Do you mean to exclude or include the fact of merchandise being landed there, and purchased there, and paid for in money, so that a stranger carrying it there, and selling it and receiving his money, would be doing what of course was perfectly lawful?—My answer is, that a person landing his goods there would not be able to procure a return, but that all the goods would go for the purchase of slaves, and nothing else: that is my reason for saying nothing but the slave trade is carried on there.
I will call them all slave traders, if you please. Do you mean to say a man may not purchase a quantity of goods which he may barter for slaves; may he not sell a part of them also to the natives?—The natives have no means of paying for them, except by the exchange for slaves: there is no produce.
As regards the shippers from this country; supposing that a man were to ship, not as agent, but on his own account, a cargo from this country, receiving money for what he exported, do you mean to say there would be any slave trading in that?—I should say not of necessity.
Mr. JusticeMaule. Suppose he comes away in ballast, if such a transaction happens?—I have never known of such a case; there was no English trade during the time I was there.
Mr.Kelly. Do you mean that no English vessels went there?—Oh, yes; English vessels passed and had some little proceedings; the Augusta, for instance, was a vessel I always suspected.
Whatever took place at that place, the Gallinas, for some years before you do not know?—I know from the statement of the natives that there was no trade.
I ask you, do you know of a vessel, called the Supply, having landed and disposed of merchandise at the Gallinas to the amount of 13,000l.or 14,000l.?—There was no such vessel there during the two years I was there; certainly not during the ten months.
This is a place to which trading of the nature to which I have referred may have taken place at a time previous to the time you mention?—The trade of the nature I describe has taken place since 1835.
I will give you the dates; I will mention the year 1837; do you know of a vessel called the Milford, having landed and disposed of goods to the amount of 6,000l.or 7,000l.at the Gallinas?—No, I wasnot there at the time; but that does not alter the case, for the slave trade existed there.
I do not ask you as to the existence of the slave trade, but whether there has not been lawful commerce and ships coming away in ballast?—I know that 800 tons of goods were landed during the time I was there, and that none of the vessels went away except with money or goods, and except when they were consigned for cargoes from the Havannah, which was the case in nine cases out of ten.
According to your experience some vessels do carry commodities to a great extent, and receive payment in actual money and sail away?—Yes, those are exceptions, but such cases do occur.
Others would go and carry their goods there and receive slaves?—No, that is not the system. The freight of the vessel is consigned from the Havannah to a slave factor, Rolo, for instance, at Gallinas; she sails again in ballast, the freight is all paid to Havannah; that is the general rule.
From what, according to your sense of the word “slave trade,” do you make out that that vessel was at all engaged in the slave trade?—I do not say that vessel is of necessity engaged in the slave trade, for I do not think it is of necessity that persons know what they are about, but I say that the consequence of it is the slave trade.
You mean that those merchants and mercantile persons are carrying on the slave trade?—Precisely so.
A person living any where else, and exporting produce there, might very well export it and get his money for it, without at all knowing to what purpose that should be applied?—Certainly, that is very possible.
With respect to this place, called the Gallinas, I am quite sure that you have given the account of the place as you believe it to exist; had you not a hand in destroying the factories there, which is the subject of one or two actions against you at this moment?—There are actions brought against me for the destruction of slave factories.
When did the event take place? I do not ask whether you had any thing to do with it of course, but when did the event take place?—About November, 1840.
Has your experience led you to various other parts of the coast of Africa, where the slave trade is carried on?—Yes.
Are not there certain parts of the coast where there is a lawful trade as well as an unlawful trade?—In almost all places, the Gallinas is the exception.
Is your knowledge, that the Gallinas is the exception, obtained from your personal presence on the spot?—It is obtained from my personal presence on the spot.
So that any person, in England or elsewhere, might export commodities to half a dozen places along the coast of Africa, and might as well export there without knowledge as any other place?—With the distinction that there is no other trade carried on there.
How is a merchant carrying on business in this country, receiving an order for 5,000l.worth of goods from the Gallinas, to know that the Gallinas is an exception to other places?—I think if he does notknow any thing of the character of the parties, he may be ignorant of the use to which they are applied.
You mean the character of the party to whom the goods are to be sent?—Yes.
What would the character of the person, to whom the goods were sent, have to do with the fact how the person in this country is to know that the Gallinas is the exception, and that the goods are not going there to fair persons as well as to other persons?—If he knows the person to whom the goods are shipped at Gallinas, I should suppose he would know there was nothing but slave trading carried on.
That is, if he knew as well as you who have been on the spot; are there not many persons who carry on the slave trade, who also carry on a very extensive lawful trade?—Undoubtedly.
Then how is a gentleman in England or America, who exports his merchandise on those orders, to know the use to which they are to be applied?—If he knows any thing of Gallinas, he will know the object to which they are applied.
If he does not know?—If he does not know any thing of Gallinas, he is not necessarily guilty of doing any thing which is wrong.
When a vessel is under the English flag, and manned by English sailors, is there not a far greater facility as to search, and as to fair trial and condemnation, than if it is a foreign vessel?—Yes, when there is suspicion of the slave trade; it depends upon some of the treaties.
Is there any thing at all to restrict or prevent your searching every vessel under the English flag, commanded by an English captain, and manned by an English crew?—Nothing at all, if we suspect.
You do it without opposition?—Yes.
When a vessel is seized which is English, it goes without any delay before an English tribunal?—Yes.
When it is a foreign vessel, does not it go before a Mixed Commission?—It depends upon the nature of the treaty; under some of the treaties it would go to the tribunal before a Mixed Commission.
A French vessel would go before a French tribunal?—Yes.
A Spanish before a mixed tribunal?—Yes.
And a Portuguese?—Yes.
When was it you first sailed for the coast of Africa?—I left England in February, 1840.
Did you before that know the Gallinas?—Yes, I knew it in 1835.
You had been there in 1835?—Yes.
You went there first in 1835, in the discharge of your professional duties? Before that time were you aware there was such a place?—No, I knew nothing about the coast of Africa.
You did not know that the Gallinas was a place where slaves were more or less dealt in than any other place?—I had no reason to know any thing about it till I went there.
Nor the trade any where else I presume?—No.
How many merchants are there at the Gallinas to whom goods might be consigned?—I believe they are all agents; there are no actual merchants.
How many people are there?—There are twenty or thirty Europeans altogether.
Were there persons to whom goods would be consigned, except those in slave factories?—There was not another white man.
Have the natives, in any of those villages, any means of paying for British produce?—They have no means of paying but by slaves; the country does not produce any produce.
You have been asked, whether a merchant here may not ship to the coast of Africa without knowing the nature of the trade there; do you think a merchant who had exported for twenty years could be ignorant?—It is impossible he could fail to know the nature of the trade.
Mr.Kelly. My Lord, my learned friend has called for a letter, which the witness says was put in the post on the 10th of June, 1839.
Mr. JusticeMaule. I thought it was 1840.
Mr.Kelly. No, 1839, four years ago. The letter has been most carefully looked for, and is not in existence. A few days ago, Mr. Lawford looked carefully for it, with the assistance of some of Mr. Zulueta’s people, and they are utterly unable to find it. I shall not consider him a witness, if my learned friend wishes to examine Mr. Lawford as to that matter, he may. The effect of it has been stated. If he wishes to ask those persons who are aware whether such a letter had existence, and whether it is not lost, I will produce them, in order to afford him the opportunity of putting the question.
Have you become acquainted with the coast of Africa?—A long time.
How long?—Since the year 1822.
Had you any official employment upon that coast?—I was governor of the Isle of Ascension, and afterwards of Fernando Po, five years at each place.
In that situation, was it your duty to attend to the coast in other parts besides Fernando Po and the other place where you were immediately governor, and to make a report upon it?—It was.
Did you receive reports from the officers of the navy, or others, with respect to the various parts of the coast?—I have received reports from upwards of 200 officers of the navy, and masters of merchant ships on different parts of the coast, and have sent a small schooner attached to my command at Fernando Po, to make reports of the different slave trading stations and what was going on there.
Did you know the river Gallinas?—Yes.
Have you been there yourself?—I have.
For what period has it been within your observation?—Since 1822; I visited it in 1822, in His Majesty’s ship Victor.
Up to what time?—We did not stay long; we were chasing a slaver off the port.
How long had you occasion to know that place?—From that time to 1834; from 1822 to 1834; I left the coast in December, 1834; I have had continual communication with it since.
During that time what was the trade carried on at the Gallinas?—The slave trade.
Was there any produce exported from the Gallinas at all?—Not a particle that ever came to my knowledge, or under my observation, or from the information I have received.
Was the country round the Gallinas a country producing that which was fit for export or usually exported?—Nothing but stones and trees, hardly what would subsist the people living there.
Did you know of the existence of slave establishments there?—As notoriously as that this Court is here.
You have seen them yourself?—Yes, certainly, and had reports from the officers I sent there.
Were you there more than once?—No.
Did you know any persons residing there? Did you know Pedro Blanco?—I knew him from reports; they kept out of my sight, they did not come near me.
Was it part of your duty to suppress the slave trade as much as possible?—That is the duty of every British officer.
It is necessary I should ask you whether it was part of your duty?—Certainly. I had no authority to seize slave ships though, but to give information to His Majesty’s squadron; and I believe I did that to some good amount.
It was your duty to obtain information of what was going on along the coast, and to communicate it to the naval officers, to enable them to seize the vessels?—Certainly.
What was about the distance of your station from the Gallinas?—About 1500 miles I should say, except when I have been running down the coast. Fernando Po is a long way from the Gallinas.
But you have been running down the coast and obtaining reports?—Yes, both by myself and my officers.
Had you the means of ascertaining the way in which the slave trade was carried on?—I had.
What was the course; was it by barter or money?—You cannot get slaves for money. I never saw a slave got for money. They cannot be got without British manufactured goods supplied by the merchants.
They get British manufactured goods and barter them for slaves?—That is the general course of dealing for slaves.
They are brought from the interior of Africa to places where the trade is carried on?—Just so.
Are the slaves brought to the Gallinas for the purpose of being bartered for the goods there?—It is the most notorious and infamous slave port on the coast of Africa. There is a continual drain of slaves from all parts of the country to it; there is nothing going on there but the slave trade, any man sending goods there must know that.
Mr.Kelly. I do not know why we are to listen to these speeches, or even to this evidence. Unless something of this, so well known to this gentleman so constantly visiting that spot, had been communicated to the prisoner at the bar before the transaction in question, I am at a loss to know how he can be affected by it. I dare say there are many persons in this Court, whose geographical knowledge may have extended as far as the Gallinas, who never heard of such a thing until they heard it upon this occasion; and I do not know how notoriety to people on the spot can be evidence against the defendant, who has never been on that spot, and never had any communication of any kind with any person on the spot.
Mr. SerjeantBompas. I hardly know how many objections are to be raised; to show the nature of the trade I must call these witnesses.
Mr.Kelly. I have no question to ask you.
Will you produce enclosure No. 18? (The same was produced).
(ToCaptainHill). Will you look at that, and state whose handwriting you believe it to be?—I believe this handwriting to be Bernardos’s, but I did not see him write it; I have some writing I saw him write in my possession.
From the knowledge you have acquired, seeing him write, do you believe it to be his writing?—Yes.
Have you had that paper in your possession before?—This is one of the papers I found on board the vessel when I seized her.
I believe you come from the Post Office?—Yes.
You have been accustomed to see the post-mark on letters?—I have.
Have the goodness to look at that, and tell me whether that is the post-mark, and the date of it?—It is.
What is the date?—The 23rd of September, 1840, as far as I can judge.
Mr.Kelly. This is the letter about which we have already had a discussion?
Mr. SerjeantBompas. I am not aware of any discussion about it at present.
Mr.Kelly. Are you about to offer it in evidence?
Mr. SerjeantBompas. Yes.
Mr.Kelly. Then I object to it; I do not understand the principle on which it is offered. This is a letter which Captain Hill proves to be in the writing of Bernardos, written to Captain Jennings, and dated September, 1840. That is sought to be given in evidence against the defendant. There is no proof that he ever saw or heard of the letter in the whole course of his life.
Mr. SerjeantBompas. Your Lordship will find the letter No. 18.
Mr.Kelly. It is a letter, I understand, which is printed at page 35, in the Appendix to the Appeal Case, at the top of that page.
Mr. SerjeantBompas. It is a letter written by one of the parties to the other of the parties who were engaged in paying the money for this vessel, which was received from the prisoner at the bar. It is a letter from Bernardos, your Lordship will see, describing the voyage.
Mr.Kelly. You had better not speak of the contents of the letter; it is before their Lordships, and for the purpose of deciding the point of law, my Lord may look at the letter. I cannot help complaining of the course taken, which is not correct or usual. My learned friend takes the opportunity of stating, in the hearing of the Jury, something of the contents of that letter, which is before your Lordships, and of which your Lordships may possess yourselves while we are discussing whether the contents of it are to be stated in Court at all. If your Lordships hold it admissible, it will then be read; but, for the present, you may read it yourselves, and hear the argument upon it.
Mr. SerjeantBompas. I cannot argue, without referring to the contents in some degree. I am quite sure that I am in your Lordships’ judgment, that in referring to the contents of the letters, I have abstained from using one single expression which could have an effect until your Lordships decide. I have not made use of a word which can justify the slightest possible degree of observation of my learned friend’s in the fair argument on the admissibility of the letters; I have gone only as far as was necessary for the purpose. As far as I have referred to their contents, I am quite sure your Lordships will be of opinion I have governed myself by the most careful attention not to say any thing which was unnecessary. It is important to ascertain where the vessel was to go. This is the person who paid the notes received from Mr. Zulueta for this vessel. I ask your Lordship whether that is not evidence of his being an agent of Zulueta in respect of this vessel. He writes to him upon his arrival in this vessel; he is employed to pay for this vessel, to purchase it; there is a communication from the one to the other of these two persons, so employed to purchase this vessel, in respect of the vessel and the trade—I say no further than that—and also giving instructions. I ask your Lordship if it is not open to me to prove where the vessel was to go to, having shown the communications which took place between the parties in respect of her going. This contains the actual instructions. The same rule exists as to evidence in criminal proceedings as applies to evidence in civil cases. The question has been before the House of Lords as to instructions given by one party to the other, and the judgment was set aside on that very point of instructions.
Mr. JusticeMaule. I do not know what case you refer to.
Mr. SerjeantBompas. There was one case as to Chambers’s bankruptcy, where the directions were considered a fact, and as such given in evidence in order to show that there were directions given. We know that it is necessary to have a certain quantity of water provided for the men going on that trade. This letter does not referto supply of water, and therefore I use that simply as an illustration. Can it be said, that if a person employed to engage in a certain trade, employed by the person upon his trial to purchase a certain vessel, going to a certain place for a certain object, gives instructions in respect of what is necessary for the trade carried on at that place, that is not matter to be given in evidence on the trial? The object of that is to ascertain for what purpose she went there. I apprehend I have clearly connected these two persons and the prisoner. Supposing I could give this distinct evidence, that the prisoner knew of it, would not that be admissible? Do I not give evidence for the Jury to determine whether he was cognizant of these transactions? Is not that part of the case for the Jury to determine, whether by his conduct it is evident he did know what took place? I apprehend this is a part of the proceedings between two persons, both of whom have been employed by the prisoner; they proceed onwards with the knowledge of the prisoner in the prosecution of that voyage, which was ultimately accomplished, or would have been accomplished, if she had not been taken. This is one part of that proceeding, and it is for the Jury to say whether there was, on the part of the prisoner, a guilty knowledge of the proceeding or not. If there was not, there will be an acquittal of the prisoner. If there was that which amounts to a guilty knowledge of what took place, I apprehend it is impossible to exclude this which is evidence, and which may be important evidence, in showing that there was a guilty knowledge. This letter is found passing from one to the other; is proved to be posted while she was at Portsmouth in preparing for the voyage, and is found afterwards on board. But we prove the period of its transmission by the post-mark.
Mr. JusticeMaule. I don’t think this is evidence. I am the more satisfied in excluding it, that I do not think it of the smallest importance; it does not prove any thing which is very material but what is already in proof.
Mr. SerjeantBompas. That, my Lord, is the case on the part of the Crown.
Mr.Kelly. My learned friend having stated that this is his case, I feel it my duty to take your Lordship’s opinion whether there is any evidence to go to the Jury in support of this charge; and I will, in doing so, call your Lordship’s attention to what the charge is on the indictment, and in respect of the Act of Parliament, to which my learned friend has hardly alluded. The indictment charges the defendant with having employed (there are several words used, but I take the more general words), with having employed a vessel to accomplish a certain object, that object being trading and dealing in slaves. That the defendant was a party to the purchase of a vessel there is no doubt. The great question here is, whether there is any evidence at all, notwithstanding the great length of time this case has occupied, whether there is any evidence at all that the defendant, Mr. Pedro de Zulueta, had any intention of employing that vessel, or those goods, for the purpose of the vessel or the goods being used in the dealing in slaves. Now, where is the evidence? I reject, as your Lordship will, all that was mere matter of observation on the partof my learned friend. The evidence against Mr. Pedro de Zulueta consists in this—that he wrote a letter on, I think, the 20th of August, by which he authorised Jennings to give a certain sum of money for the vessel; the vessel was afterwards purchased, and the defendant puts the name of his firm to the charter-party of that vessel—the charter-party, by which Jennings having become the purchaser of the vessel, charters the vessel to the foreign house of Martinez & Co., for which the house of Zulueta & Co. were agents—Martinez & Co. thus become the charterers of the vessel, Jennings, on certain terms contained in that instrument, being the captain of the vessel.
It is said, also, that the defendant dispatched the vessel; that he shipped goods on board the vessel. My Lord, with regard to the whole of the rest of the case, as to his using, employing, equipping, or dispatching; as to his shipping the goods by the vessel; as to his interfering in any way in respect of the vessel or the cargo, that depends entirely upon his own evidence before the Committee of the House of Commons. That is evidence against him; that evidence I need not go into at length; that evidence, taken together and stated shortly, is this:—I am a member of the firm of Zulueta & Co.; that firm, including myself, did purchase this vessel, did cause it to be dispatched in the way stated, did cause certain goods to be shipped on board the vessel. We acted as agents for Martinez & Co., the goods being consigned to correspondents of Martinez and Co., named by Martinez & Co.; but as to the purpose for which that was done, as to the vessel itself, or any goods on board that vessel, being used for the purposes of the slave trade, I declare, though I admit that my house did dispatch the vessel, and did ship the goods, we had no idea or any suspicion that the vessel or goods could be intended for any illegal purpose whatever. That is the whole of the evidence, with this addition, that three gentlemen have been called, whose public duties have for some years past led them to the coast of Africa, and among other places to the Gallinas, who have stated that which has come within their personal observation—the place itself, and the dealings carried on at the place, having been familiar to them for a considerable time past. They state that they knew very well that it was a slave trading place. There is no evidence that the defendant, the prisoner at the bar, ever was at the Gallinas in his life; on the contrary, the evidence is the other way. There is no evidence that the defendant ever gave any instructions or authority, directly or indirectly, to Jennings, or to any other person, to use the vessel or to use the goods for the purposes of the slave trade, or for any other illegal purpose. There is no evidence that any communication was ever made by the house of Martinez & Co., or any other house, to the defendant, Pedro de Zulueta, that the vessel or goods were to be employed in the slave trade, or that any such illegal object was in contemplation.
Now, my Lord, what is the effect of the statute? The statute declares that slave trading, of a particular description, shall be illegal. The statute proclaims it a felony in any British subject to employ or equip a vessel, or to ship goods, for the purposes of theslave trade. That it may be taken on the admission of the prisoner himself, by his evidence before the Committee of the House of Commons, though there is no other evidence, that he did employ the vessel, and that he was concerned in the shipping of goods, I admit; but where is the evidence that he did those acts, or that he participated in those acts, for the purpose of those goods, or that ship, being employed in the slave trade? If this be so, if your Lordships hold that it is evidence to go to the Jury, that because a mercantile house in this city executes the order of a foreign correspondent, and sends out a ship with certain goods, which may be lawfully shipped, but which it is possible may be improperly employed, that therefore it is to be taken that they were to be unlawfully employed, and that therefore there is evidence to go to the Jury that he dispatched the vessel, and shipped the goods, in order that they might be unlawfully employed, I do not see how any mercantile house in this kingdom can trade in ships or goods, or execute any order, at the instance of any house in any part of the world, where either from that house personally dealing in the slave trade, or having communication with parts of the coast of Africa, it is possible that the ship, or the goods, may be applied to the unlawful purposes of the slave trade. If, without any proof of the party having used the ship, or the goods, for the purposes of the slave trade, without any document under his hand alluding to the slave trade, where all that is done is perfectly lawful, because it is possible that other persons, to whom he may have consigned his goods, may apply the ship, or the commodities, to the uses and purposes of the slave trade, that is to be held to be a case for the Jury that they were so intended, I do not know how any trade can be carried on. I submit, therefore, that here there is no evidence to go to the Jury of Mr. Pedro de Zulueta, the prisoner at the bar, having used this ship, or having shipped these goods, for the purpose of their being employed for the slave trade. I can easily conceive that a case might have been made out. The prosecutors seem to have been aware that communications had taken place between Messrs. Martinez & Co. and the house of Zulueta & Co., and they have called for the production of letters. I can easily imagine that a case might have been made out, inasmuch as Mr. Zulueta has stated that he purchased this ship by order of Martinez. But the prosecutor is bound to make out that case: he is not to raise a suspicion, and then to call upon the prisoner to clear himself from it: he must prove his case. He might call for any letters that had taken place between Martinez and the prisoner at the bar; for any communications between the prisoner at the bar and the captain of the vessel. If they had been produced, he might have established from them that something had been proved that established this offence. Then there might have been a case to go to the Jury; but the case here is one in which the prosecutor alleges, that Pedro de Zulueta himself employed the vessel, and shipped these goods, for the purpose of their being employed in the slave trade. The question is, the slave trade being prohibited by law, whether he is concerned in the intent and design of their being so to be used; whether there is any evidence that he knew of the slave, trade being carriedon there; whether there is any evidence that he knew that these goods would be employed, or might be employed, for the purposes of the slave trade. I submit there is no case calling upon him, I will not say for an answer, but even for observation; I submit that it would be extremely unsafe where the prosecutor has the means of proving if there has been a guilty knowledge on the part of the defendant, if it is the fact that the intent of the proceeding is something illegal, and where the prosecutor might prove it by direct evidence, that he should content himself with proving that a ship was dispatched which might be used for the purposes of this trade, leaving it to the defendant to prove the negative of that, and to give in evidence all the documents which may have taken place, merely proving that it is possible that the ship the defendant dispatched might be so employed. I submit to your Lordships that is a dangerous doctrine, that it is contrary to the practice of the Court, and that there is no case in which the charge would not apply equally to every merchant in the kingdom who exported goods which might, after they left this country, be applied to an illegal purpose.
(The learned Judges consulted together.)
Mr. JusticeMaule. Mr. Kelly, you may go to the Jury.
Mr.Kelly. My Lord, after what has fallen from your Lordships, of course I shall not hesitate to address the Jury upon the evidence which has been offered by my learned friend. There are one or two points, however, to which I would call your Lordship’s attention, and bring the terms of the statute under the attention of the Court; which, I apprehend, will be fatal to the prosecution, without troubling the Jury with observations which may extend to a considerable length of time, and which I shall feel it my duty to bring before the Court.
Mr. JusticeMaule. Do you mean something in arrest of judgment?
Mr.Kelly. No, my Lord; on the effect of the evidence.
Mr. JusticeMaule. I cannot think it is at all right that the question whether the case should go to the Jury should be twice put.
Mr.Kelly. No, my Lord. I say, supposing even that the charge is well made, that it is not an offence within the Act of Parliament.
Mr. JusticeMaule. It comes to the same thing; I cannot see what you mean to say to the Court, except that the indictment is bad. That you state you do not propose to say?
Mr.Kelly. It is not that which I first contended.
Mr. JusticeMaule. You did not propose to say that, and you now propose to say that the indictment is bad?
Mr.Kelly. My Lord, there is one point on which I do contend that the indictment is bad, though that is not the point to which I would call your Lordship’s attention. I was first about to submit to your Lordship, that the offence charged upon the evidence is not a felony within the Act of Parliament.
Mr. JusticeMaule. That it does not support the indictment?
Mr.Kelly. Yes.
Mr. JusticeMaule. It appears to me that that is exactly what you have been saying before.
Mr.Kelly. No, my Lord, the point is altogether and totally different.
Mr. JusticeMaule. It may be a different reason, but it is the same point.
Mr.Kelly. I am sure your Lordship will see that it is different, when I come to explain.
Mr. JusticeMaule. It is going for a nonsuit?
Mr.Kelly. Yes, it is in effect, my Lord; but if the Court will indulge me with a few moments of time, they will see that the Court is under a mistake, and that the point is most grave and proper for the consideration of the Court, and totally apart and distinct from that I have already submitted.
Mr. JusticeMaule. All I want is that you should explain. Sometimes, when gentlemen are moving for a new trial, they are asked whether they move for a new trial on the point of misdirection, or the verdict being against evidence; I do not say it is imperative they should state distinctly, sometimes a gentleman might not feel prepared to state that?
Mr.Kelly. I will answer your Lordship’s question in as few words as I can. The point I make is this:—The charge is, that of fitting out a vessel to accomplish the object of trading in slaves, or slave trading at Gallinas, which I submit was not an illegal object: that supposing for a moment the facts were to convince the Jury that the defendant had fitted out this vessel, in order that Pedro Martinez & Co., or any other persons, might trade in slaves at Gallinas, that is not a felony within this Act of Parliament.
Mr. JusticeMaule. Do you mean to say, that proof would not support the indictment; or, that supporting the indictment, it would not amount to felony? One of those things it must be.
Mr.Kelly. I say both: it would not support the indictment, and it would not amount to felony.
Mr. JusticeMaule. Inasmuch as you say it would not support the indictment, that is going on the very ground you have gone on before, only giving another reason. If you do not see that—if you tell me you do not think it—I will hear you.
Mr.Kelly. I beg to state with the most perfect sincerity, I do not feel that.
Mr. JusticeMaule. You mean to insist that the indictment is not supported, having previously insisted that the indictment was not supported?
Mr.Kelly. Yes; but on a totally different ground.
Mr. JusticeMaule. I do not say you are not entitled, not on the same ground to say that the indictment is not supported, but you are not entitled to say that the indictment is not supported twice over; that you cannot put forward one set of reasons, and when they are overruled, put forward another set of reasons; for if you could, in case they were overruled, you might then put a third.
Mr.Kelly. If I had had the slightest idea that it would be deemed inconvenient that I should submit one point for your Lordship’s consideration, and ask for a decision on one before I proceeded to the other, I should have submitted both; I have only to ask your Lordship’s pardon for the course I have taken.
Mr. JusticeMaule. I am quite sure that you must see that where there are several grounds for making that motion, it is desirable that they should be all stated in the outset, for otherwise they might split into separate motions. The universal course is, that all the grounds should be stated, and the unity of the object preserved; and the Court yields with apparent reluctance to a different course. The object you now have is to induce the Court to rule that there is no evidence to go to the Jury. That, you have before submitted; you say you have a different reason, but that different reason does not raise a ground for the Court hearing the application repeated. I only regret you did not take the course which the Court thinks the best. If you insist upon it, I shall feel bound for the convenience of the Court, not to allow an old and very able counsel to do that which would not be fair in ordinary cases; but if you say you have made some slip or omission I will hear you.
Mr.Kelly. That is really so. If your Lordship will pardon me one moment, I will take what course your Lordship thinks most convenient for practice.
Mr. JusticeMaule. You omitted something?
Mr.Kelly. Yes, my Lord; I will state what is quite unconnected with the objection I have taken. This indictment charges the prisoner with having equipped a vessel, and shipped goods, in order to accomplish an object, that object being the exercising of the slave trade, and it is framed upon the Act of Parliament of the 5th of George IV, chapter 113. Now, my Lord, by the 2nd section of that Act of Parliament, slave trading by certain persons, and under certain circumstances, is declared to be unlawful. By the 10th section of the Act, it is enacted that if any person shall among others, equip a vessel, or ship goods, in order to accomplish any of the objects theretofore declared to be unlawful, he shall be guilty of a felony. That is the felony charged in this indictment, namely, that the prisoner at the bar equipped a vessel, and shipped goods, in order to accomplish one of the objects declared to be unlawful, namely, that of trading in slaves. Now, the point is this: the charge, supposing it substantiated by evidence, is this—that the prisoner at the bar equipped this vessel, and shipped these goods, in order that they might be used in the slave trade, in order to accomplish the object of trading in slaves at Gallinas, in Africa. The Gallinas is not a British settlement, and is not a British colony, and therefore that species of trading is not declared unlawful by that Act of Parliament; the trading declared by that Act of Parliament to be unlawful must be a trading by British subjects. The trading, in order to be unlawful within the meaning of this Act of Parliament, must be a trading by British subjects; and moreover, at the time when this offence is supposed to have been committed, it must have been a trading at some colony either in Great Britain, or some colony or settlement belonging to Great Britain. That will appear from another Act of Parliament, passed to remedy the defect under theformer Act of Parliament; your Lordships will see, that by the 2nd section of the Act of Parliament, the terms are general.
Mr. JusticeWightman. What Act are you upon Mr. Kelly?
Mr.Kelly. I am now on the 5th of George IV. By clause 2, it is provided, “that it shall not be lawful (except in such special cases as are hereinafter mentioned) for any persons to deal or trade in, purchase, sell, or barter, or transfer, or to contract for the dealing or trading in, purchase, sale, barter, or transfer of slaves, or persons intended to be dealt with as slaves,” and to do a variety of other acts which are by that section declared to be unlawful. Now, my Lord, though the words are general, “that it shall not be lawful for any persons to deal or trade in slaves,” the legal effect of them is, that it shall not be lawful for British subjects to deal in slaves; and your Lordship will see by the subsequent Act of Parliament it also means, that it shall not be lawful for British subjects to deal in slaves, either in Great Britain, or in the settlements or colonies of Great Britain, and that that Act of Parliament did not extend to the trading in slaves in foreign states.
Let us take the two points of the proposition. First of all, this manner of trading in slaves by foreigners becomes material in this view: I presume, from the opening and the evidence, it was intended that this ship and these goods should be taken to Gallinas, and there used by the consignees of the vessel and the goods, either by bartering the goods for the purchase of slaves, or selling the goods and with the produce buying slaves. It is not material to consider now how far that is within the Act of Parliament, but the object, which I presume is the unlawful object with which the prisoner at the bar is charged with having dispatched this ship, is the object that the consignees or some other persons at Gallinas should trade in slaves by means of the ship or the goods. I submit that is not a trading in slaves within the 2nd section of the Act of Parliament, that though the words are general, it does not apply to aliens as the consignees of goods, which Martinez were, but to British consignees of goods, which in the Act of Parliament makes the act criminal. If the act be committed abroad, it is not an offence within the Act. A trading in slaves abroad by Rolo, by Martinez, or any persons whose names we have heard mentioned, would not be criminal within the Act of Parliament. The object of the charge is the trading at Gallinas. Now, the trading in slaves any where abroad by an alien is not an offence within this statute.
In order to illustrate this, let me suppose that the vessel had reached the Gallinas, that the consignees of the vessel had employed it for the transport of slaves, and had taken the goods and bartered them for a quantity of slaves, that would not have been illegal within this Act of Parliament. It would undoubtedly have been illegal for any British subject to have done so within any British colony, for this Act is binding on all British subjects throughout the British dominions, but it would not have been illegal for Martinez or any foreigner to deal in slaves in that place; and therefore, supposing it were proved that the prisoner at the bar had dispatched this vessel, that Martinez or Rolo might deal inslaves in foreign parts, that is not one of the objects to which this statute applies, for it applies only to British subjects, and not to foreigners.
My Lords, I need not cite authorities, they are numerous. There is one which is precisely to the point, The Kingv.Depardo; that is perfectly conclusive upon that subject: that is in 1st Taunton, in which a Chinese sailor who had enlisted, or rather had become a seaman on board one of His Majesty’s ships, committed manslaughter in the Chinese seas, and the question was, whether he was amenable. The great point argued by the late Lord Tenterden and Mr. Burrough was, whether that offence, committed by an alien, was within the Act of Parliament. The prisoner having been convicted, he was afterwards pardoned, on the ground that an Act of Parliament, declaring any particular act to be a felony, such act, if committed abroad by an alien, was not within the Act of Parliament, an alien not being within a British Act of Parliament: so I apprehend no position to be clearer than that a trading in slaves at Gallinas by Rolo, or Martinez, or any person to whom it can be imputed to the prisoner that he intended this ship and goods to be consigned, the trading in slaves by any alien there, would not have been unlawful within this Act of Parliament. If it would, the consequence would have been that a foreigner, Rolo or Martinez for instance, who might be lawfully, according to the laws of their own country or the laws of that place, trading in slaves, might, by engaging in that trade in slaves in the course of this very transaction at the Gallinas, have afterwards been prosecuted here, and convicted here; whereas nothing can be clearer than that these laws against the slave trade can only make the act an offence when it is done by British subjects, who alone are the objects of a British Act of Parliament: therefore I submit that the object being established, supposing the case sought to be established to be so established that Mr. Zulueta dispatched this vessel to enable Martinez to deal in slaves, that is not an object declared unlawful by this statute, for that would have been a trading by aliens who are not within this statute, and the shipping of goods to accomplish that is not within it.
But, my Lord, I go further; I have the case of Depardo, in Russell on Crime, it is not at so much length as in the report in Taunton. The marginal note is, “A manslaughter committed in China by an alien enemy, who had been a prisoner at war, and was then acting as a mariner on board an English merchant ship, on an Englishman, cannot be tried here under a commission issued in pursuance of the statutes 33 Hen. VIII, cap. 23, and 43 Geo. III, cap. 113, sec. 6. 1 Taunton 26.” The principle is perfectly clear, that a person afterwards coming to the country, is not to be treated as if he had previously been a subject of the country; so I say here, that the trading in slaves at Gallinas, or any where abroad by a Russian or a Pole, or any other alien, would not have been within this Act of Parliament at all; it would not therefore be an illegal object within this statute, and the dispatch of goods or a ship to accomplish that object would be no felony.
But, my Lord, the case is rendered perfectly clear by the highestauthority, namely, the authority of the Legislature itself, by means of another Act of Parliament, the 6th and 7th of Vict. cap. 98. This Act of Parliament shows that the case is stronger than I have put; and it shows that until the passing of this last Act of Parliament, which took place in the present year, 1843, it was not illegal, within the statute of the 5th of Geo. IV, even for British subjects to trade in slaves, except within the British dominions. The object of this Act of Parliament is to extend the provisions of the 5th of Geo. IV, so as to make it, from some day mentioned in the Act, criminal in British subjects to trade in slaves in any part of the world, in foreign states as well as in the British dominions.
Your Lordship will find this Act recites the 5th of Geo. IV, and recites the second section, to which I have called your Lordship’s attention; “whereby it is enacted (among other things) that it shall not be lawful (except in such special cases as are hereinafter mentioned) for any persons to deal or trade in, purchase, sell, barter, or transfer, or to contract for the dealing or trading in, purchase, sale, barter, or transfer of slaves, or persons intended to be dealt with as slaves,” and so on. Then it recites all the different acts which are declared unlawful by the 5th of Geo. IV, and then it proceeds: “And whereas it is expedient, that from and after the commencement of this Act, the provisions of the said Act hereinbefore recited shall be deemed to apply to, and extend to render unlawful, and to prohibit the several acts, matters, and things therein mentioned, when committed by British subjects in foreign countries and settlements not belonging to the British Crown, in like manner and to all intents and purposes as if the same were done or committed by such persons within the British dominions, colonies, or settlements, and it is expedient that further provisions should be made for the more effectual suppression of the slave trade, and of certain practices tending to promote and encourage it; Be it therefore enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same, that all the provisions of the said consolidated Slave Trade Act, hereinbefore recited, and of this present Act, shall, from and after the coming into operation of this Act, be deemed to extend and apply to British subjects wheresoever residing or being, and whether within the dominions of the British Crown, or of any foreign country,” and so forth: so that your Lordship sees this Act of Parliament clearly shows this, that before the passing of this Act, though it was declared to be unlawful to trade in slaves, the Act meant that it should be unlawful only for British subjects to trade in slaves any where within British settlements or colonies, and that it required the aid of another Act of Parliament to make it unlawful (not for aliens—for as to them it still is not unlawful—but to make it unlawful) even for British subjects to trade in slaves, or do the other acts referred to in this statute. The state of the law was, that aliens might trade in slaves in foreign parts without contravening that Act of Parliament, and that British subjects might trade in slaves in foreign parts without contravening that Act of Parliament. By the Act of the6th & 7th of Vict. the provisions of the Act of Geo. IV are extended to the case of British subjects: it leaves the case of aliens as it was before, and it makes it unlawful for British subjects to deal in slaves, in the Gallinas for instance—so that your Lordship sees the objection presents itself in this way—this is an indictment for a felony, the felony being the dispatching a ship for the accomplishment of an illegal object, that being the slave trading at the Gallinas; but at the time when this Act passed, it was not illegal for foreigners to trade in slaves at Gallinas. If it is not illegal now, it was not then illegal for British subjects to trade in slaves in foreign countries. The present Act of Parliament renders it illegal for British subjects to trade in slaves in the Gallinas, or any other foreign country; but it was to come into operation only on the passing of the Act in 1843. My learned friend reminds me that it does not come into operation until the 1st of November: but that is quite immaterial; it has no retrospective operation; it was not in operation in 1840 or 1841, when it is stated that this felony was committed by the prisoner.
Before I sit down, I would also take your Lordship’s opinion whether there is any offence proved within the city of London. Your Lordship observes this is not a trial under a section contained under one of the Acts of Parliament, providing that any offence against the statute may be laid in Middlesex. The indictment is not at all framed on that section of the Act of Parliament; it is framed on the common law, except so far as it is governed by the Central Criminal Court, and the venue is laid in London. It must be proved, therefore, that a felony was committed in London. The felony, said to have been committed, is the equipping, dispatching, using, and employing the ship, as charged in one set of counts; and the shipping the goods, as charged in another set of counts. Now, the dispatching the ship was at Portsmouth, and afterwards at Liverpool. It was dispatched at Portsmouth, went to Liverpool, was there loaded and then dispatched, and there all the goods were shipped. So that your Lordship sees the equipping, the using, the dispatching the vessel, any thing that could be done with the illegal object of dealing in slaves, must have been done at Liverpool. Neither the vessel, nor the goods, as far as appears, were ever in London. I submit to your Lordship, on that ground, there is no offence committed in London. Another objection which arises on the indictment I do not trouble your Lordship with, for it will apply in future, if necessary.
Mr. JusticeMaule. Are there any others?
Mr.Kelly. No, my Lord.
Mr. JusticeMaule. I think there is no ground for the second point on the Act of Parliament of 6 & 7 Vict., cap. 98, as affording a construction to the Act of 5th Geo. IV, cap. 113. The suggestion is, that this Act amounts to a Parliamentary declaration, that the Act of the 5th of Geo. IV, cap. 113, does not prohibit Englishmen engaging in slave trading abroad. I should be very sorry to put a construction upon that Act, which would involve so great an absurdity to it, as would be created by its being supposed tobe laid down that that which was declared to be illegal in Great Britain, and Ireland, and the Isle of Man, and also in the East Indies, and West India Islands, is not at all prohibited on the coast of Africa, which is the construction sought to be put upon this Act of Parliament. I cannot help thinking the Legislature have expressed the intention of prohibiting English subjects trading in slaves on the coast of Africa; and if that be so, the construction which Mr. Kelly insists ought to be derived from the statute of Victoria is not the true construction, or one which ought to prevail. With respect to the other objection, we think there is evidence to go to the Jury of Mr. Zulueta’s acts in London.
Mr. SerjeantBompas. May I call your Lordship’s attention to the 50th section: “And be it further enacted, That all offences committed against this Act may be inquired of, tried, determined, and dealt with, as if the same had been respectively committed within the body of the county of Middlesex.” If it is within the jurisdiction of the Central Criminal Court, the venue is perfectly immaterial, if it is within the venue of the Court.
Mr. JusticeMaule. I apprehend, that if a prisoner is indicted for a felony in Essex, within the limits of this Court, he will be tried here.
Mr.Bodkin. In a case in this Court where the venue stated merely the jurisdiction of the Central Criminal Court, the Court of Queen’s Bench held that indictment bad, because it was impossible to say from what county the Jury were to be called.
Mr. JusticeWightman. There the indictment had been tried in Middlesex, being removed from the Central Criminal Court. It was removed bycertiorariand tried in Middlesex, and it was said there was no direction on the record to try it in Middlesex.
Mr. JusticeMaule. But Mr. Bodkin says, if it is a London case, there ought to be a London Jury; if in Essex, an Essex Jury.
Mr.Bodkin. The Court of Queen’s Bench held the locality to be material.
Mr. JusticeWightman. Not generally. I have stated how it became material there, and why it is not material here. The case was removed by certiorari, and therefore it became material.
Mr.Kelly. As this is the first trial under this Act of Parliament, your Lordship will probably consider it proper to reserve the point whether this trading is within the Act.
Mr. JusticeMaule. The point has been very fully and ably argued, and I think the Court has given it sufficient consideration. We have no doubt about it; we do not consider it a point on which there is any doubt.
Mr.Kelly. Perhaps the Jury will retire for a few moments before I begin my address.
Mr. JusticeMaule. For a few moments, not to exceed a quarter of an hour.
[The Jury retired, and after a short time returned into Court.
Mr.Kelly. May it please your Lordships.
Gentlemen of the Jury,—Their Lordships having determined thatthis case is fit to be submitted to your consideration, I now proceed to discharge the very anxious, the painfully anxious, duty imposed upon me in consequence, of addressing you on behalf of the prisoner.
Gentlemen,I should ill discharge that duty if I hesitated one moment to denounce this prosecution as one of the most unconscientious prosecutions that ever any individual has dared to bring forward in an English court of justice.
Gentlemen, pardon me if I should express myself in any part of this case with any undue warmth; attribute it to the anxiety I must naturally feel, when I know that all the interests in life, the happiness here—I had almost said hereafter—of the young man at the bar, whose defence is committed to my charge, depend upon your verdict upon this transaction, upon which I, and I only on his behalf, have to address you.
He is a young man, now I believe only seven or eight-and-twenty; he is a foreigner, born in Spain of a Spanish family; he and his ancestors are of that country and not of this, and he has become a member of the mercantile house of which his father is the head. He has, during the latter years of his life, been resident in England, and has from time to time bestowed some attention upon the business of the counting-house and the commercial concerns in which the firm were engaged, and he has participated but as a member of the firm in the ordinary course of business in this transaction, which is, indeed, a very small transaction among many very great and important ones passing through that house; and now, to his consternation, and to his unspeakable astonishment—he, a young man of spotless character—he, who one of the witnesses for the prosecution has already described to you upon his oath as a good son, a good brother, a good father, a good husband, and as an honourable member of society—he finds himself charged here with a felony, and that upon evidence such as I shall have in detail to call your attention to. He is charged with a felony upon which, if from want of ability or from want of caution in his advocate he was to be convicted, he must be transported for fourteen years as a felon, and forfeit his property, and forfeit his character, and be ruined for life.
Gentlemen, this is the case before you, and I do ask in the outset, is this a prosecution which ought to be brought forward? Mr. Serjeant Bompas, whose duty it was to state the case to you, having opened that case—how, I shall have to remind you when I call your attention to something which in the opening fell from my learned friend—having opened his case fully and in detail in a speech of some two or three hours, after he has sat down thinks it necessary to rise again and tell you that Sir George Stephen is the prosecutor in this case.
Gentlemen, you have already heard from one of their Lordships, and you know it is a matter of history, that the British government has long exercised its energies and its mighty powers in putting down and preventing the odious slave trade: you know that the powers of the government have been wielded for many, many years past with that view, by those who are sincerely, from the bottom oftheir hearts, determined by every lawful means to put down that trade; you know that the whole conduct of this honourable and innocent young man has been under the consideration of the former government and the present government. The late Colonial Secretary, Lord John Russell, whose duty it would have been to have protected his own character, and that of Great Britain, by this prosecution, if any offence had been committed, was a member of the Committee, and inquired minutely and distinctly into the transaction; Lord Stanley, also, the present Colonial Secretary, was a member of the Committee. Both governments were regularly and fully acquainted with all the transactions in question, and those governments, whose duty, as my learned friend has told you, it was to do every thing they might to put down the slave trade, so far from feeling it a case for prosecution, the Committee themselves, and the present and the former governments, have fully acquitted this young man, and the house to which he belonged, of any guilty participation in this transaction, as I trust you will to-day acquit him by your verdict. The government of 1840 and the government of 1842, the past and the present government, fully acquainted with all the circumstances, have thought it proper, so far from dreaming that any guilt could be imputed to this young man, to agree to a Report of a totally different character. And a society, called “The Anti-Slavery Society,” existing in this very town, failing to take up the prosecution, you have this very singular fact, that Sir George Stephen, though he put his name upon the back of the indictment, dare not put himself in the box for me to cross-examine. You have Sir George Stephen failing to sign his name to the notices, and you have at last the tardy and reluctant acknowledgment of his counsel that he is the prosecutor. I ask you, gentlemen, to recollect this: Lord John Russell and Lord Stanley were both of them members of the Committee; both were present when this matter was inquired into; before whom Captain Hill was examined, before whom Captain Denman was examined, and before whom another gentleman, Colonel Nichol, was likewise examined. That Committee put forth the large volume which I hold in my hand, and before them this young man voluntarily came, and was examined as to every part of this transaction; aye, and as to the conduct, and character, and dealings of his house, from the time it was first established. And do you believe, if this had been a proper subject for prosecution, that the members, the leading members of a government, the government of a kingdom which has spent twenty millions of the public money to put an end to the slave trade—do you think, if they had felt that this was a proper subject for prosecution, that it would have been left to Sir George Stephen to come forward with his own money, and with his own means—for what purposes I cannot conceive, they must be left to his own feelings, and I do not envy him his feelings—to be the prosecutor of an indictment, which, if it succeeds, must for ever crush and ruin a young man, with respect to whom I shall demonstrate there exists but at most that species of suspicion, which ought never to be cherished against one whose character is, as I shall prove this young man’s character at the bar to be, above all sort of suspicion—that suspicion,which, if it does exist, may be a fit reason for inquiry, but ought no more to be the ground for a prosecution for felony than it ought to be the ground for a conviction without any inquiry at all.