adventure, as indicated by the nature of the trade said to prevail at
Gallinas; and as in the former observations, since the name of Gallinas
has been laid down as probably conveying no information to any but slave
dealers and the slave police, the prisoner seems to remain untouched.
But then it is laid down that an answer, which of course somewhere must
exist, could be easily given by the accused. How so? but that the law,
this special Act of Parliament, must be so understood as to require the
simple shipping-agent in England to prepare himself with a full
knowledge of the plans and the objects of the foreign merchant abroad,
who orders certain goods to be purchased and shipped for his account.
The learned Judge has not lost sight that in the universal practice of
law, a conviction is only justifiable by evidence produced--that is,
produced against, not by that which the accused party does not produce:
but he feels it his duty, under the Act of Parliament he was expounding,
to warn the Jury that the case is not so to be treated; for the
operation of that Act, when to be applied to a commission-agent in this
country, shipping goods to a place about which such evidence is offered
as that it is a slave-mart, and a slave-mart only, even although the
knowledge of that fact has been previously stated to be most probably
confined to dealers in slaves, and the police employed against them,
upon whose testimony alone it stood before the Court--in such a case,
when dealing with the 5th Geo. IV, the _onus probandi_ lies with the
accused. In the course of mercantile transactions, the commission-agent,
who buys and ships goods by order and for account of a foreign merchant
residing abroad, and to a port with which the former has no intercourse
of trade whatever, would not be supposed nor could be expected to
possess any further knowledge than that necessary to complete, in
England, his own part of the transaction; but not so for the purposes of
the Act in question. The reasoning seems to be this: here is a law which
makes a certain knowledge guilty, if the object of the party abroad,
originating the transaction be in deed and in fact a guilty one. In
order to give force and strength to the operation of this law, it must
be so laid down as to render necessary some knowledge of either an
innocent or of a guilty nature, in the party residing in England, of the
plans and objects of the party abroad by whose order and for whose
account he has shipped goods to the port indicated to him. This or that
knowledge must exist in the agent: he must be called upon to produce
even the very foreign merchant himself, over whom the Court can give the
accused no control, over whom he himself is not shown to possess any,
and whose testimony after all could not be trusted; since that of the
accused, as recorded before the Committee, is not. If in this, or in
some other way, he does not prove knowledge of an innocent object, the
object must be taken to be a guilty one; and as the law must be
understood to require a knowledge, and he shows no innocent knowledge,
the inference remains of a guilty knowledge: from which it seems evident
that shipping agency business cannot be safely undertaken, as has been
heretofore done, at least for merchants residing in countries in which
slave dealing still exists, not only in Africa, but Cuba, Brazils, the
United States, and other places. But merchants in England are required
to master the whole object and plan of their correspondents abroad; and
that the sincerity of his endeavours will be measured only by the
result, is what common prudence will teach a man to expect from the
machinery which is set on foot in order to apply to this Act of
Parliament that notable remark, that _who wills the end wills the
means_.
And thus, after having laid down that the Act requires a proof of
innocence in the party accused, a knowledge of something innocent
intended--which, if not given, must leave the inference of guilty
knowledge, inasmuch as _no knowledge_, ignorance of the object, cannot
be taken as an answer--the accused, if he cannot produce his
correspondent, or if he did not possess himself at the time of making
the shipment, of a plain and simple account of his plans, is left to the
mercy of such inferences as may be drawn; and upon this view of the
requirements of the Act of Parliament he is to be considered as
withholding something which cannot be supposed to be favourable to him.
This inference will not be counterbalanced--it cannot be when once
admitted; it must either be destroyed by the plain and simple account of
what the merchant abroad intended, or its edge will be blunted by
nothing else. The accused’s character may be “of the very highest,”
perfectly unassailable; the position he occupies in the mercantile
profession may be very high, the profession itself in this country being
reckoned on a level for honour and principle with the highest; and men
of unblameable character, of considerable standing and independence,
conscientious and upright, moving in society where good taste and right
feeling prevail, are not likely to put their property, their character,
their consciences, in jeopardy, especially by partaking in transactions
to which their habits and feelings, and those of persons around them,
stand opposed, and all that for very paltry advantage. It is pointed out
by the learned Judge, that although a very grave charge, and of a very
highly penal nature, still the slave trade--the dealing in slaves--“is a
trade, which till a recent period was lawful for persons in this
country, and many persons of very good character certainly did engage in
that trade, and a great number of persons justified it. I suppose,” he
continues, “those same persons would now say it is not to be engaged in,
because it is a prohibited thing--it is a regulation of trade enforced
by very severe penalties made by this country--but that the dealing in
slaves is in itself a lawful, right, good, and proper thing, which ought
not to be prohibited. Those persons would now consider slave trading as
a thing prohibited only by positive regulations. There is no one who
does not at once perceive that practical distinction between them. There
is no person who, in point of feeling and opinion, does not perceive the
difference there is between a thing which is prohibited by positive law,
and that kind of thing, against which, if there were no law at all
against it, the plain natural sense and conscience of mankind would
revolt. This trading in slaves, in the opinion of a great many persons,
is itself an abomination, a thing which ought to be considered with the
greatest horror, whether prohibited or not; but those who think it was
right when it was not prohibited, probably do not think it so very bad
if it be committed now, since it has been prohibited by law, only that
it is to be avoided on account of the penalty to which it subjects the
individuals engaged in it. This has some bearing on the question of how
far considerations of character would have weight with respect to such
an offence.” The opinion entertained by the individual in question
against the slave trade may be as strong as the strongest for any thing
that appears, who has stated without its having been contradicted, that
neither himself nor his family have ever been suspected of having the
smallest interest in slave dealing, or in slave property, about which he
has stated how his fathers have proceeded: an individual, who may,
perhaps, have a very strong opinion as to the moral and religious duty
of obedience to positive enactments by competent authority, and who said
something to that effect in the evidence before the Committee of the
House of Commons, which had been read in Court.
This as to the character of the party. As to the inducement, when it is
alleged that the smallness of the agency commission charged shows that
the transaction was considered to be one in the ordinary course of
shipping business, that consideration is pressed down by the weight of
the radical defect in not having given a plain and simple account of
what was intended by the foreign merchant. “It is alleged,” says the
Judge, “that the profit on this transaction would be extremely small. I
do not think that the petty gain of this one transaction is the matter,
for it appears that Pedro Martinez & Co. do a great deal of business,
and it is possible that whenever persons have a large and valuable
business to conduct, _there is some small portion that the correspondent
and agent would willingly get rid of if he could_; but he is not allowed
to pick and choose, but he must take the whole.” In short, a London
merchant, of the character which has been described, is to be supposed
as not at all unlikely to commit a felony, if the alternative be to lose
a valuable connexion.
And thus, whilst the most unimpeachable character is not a proof to any
extent against the suspicion of a felonious knowledge and intent, and
whilst the token of innocence afforded by the charge of the ordinary
rates allowed in legitimate business is not considered of weight--as a
compensation in some other way is possible, and the disposition to
barter conscience and duty for money is such a thing as people who
conduct a large business are not quite unlikely to lend themselves to if
they are not allowed to pick--so, likewise, the supposed extent of the
connexion of the merchant is no bar to their being supposed anxious to
retain one more under felonious conditions. Neither the superiority of
his knowledge and education, nor his skilfulness, are likely to make him
either apprehensive or disinclined to the commission of a crime, whilst
these qualities render him obnoxious to the remark, “that it may very
generally be taken, that people know what they are about, unless they can
show there was some particular concealment, some hinderance to their
knowledge;” “unless they,” so accused, “can show,” that they did not
know (not if those who accuse them have shown that they _did_ know),
then all the qualities of character, station, extent of business,
education, are against the accused; and unless the accused can show,
that he had a knowledge of something innocent having been intended by
the foreign merchant, any peculiar circumstances of the case, which may
appear to be of a favourable nature to the accused, must be considered
only in that light which may diminish the improbability of his having
had a guilty knowledge. Thus, as the employment of the British flag for
the purpose of dealing in slaves stares every body in the face, and was
a very strong feature in the present case, not only against any
knowledge on the part of the charterer of the vessel and shipper of the
goods in England, but even against there having been any guilty intent
in the merchant abroad, who had the choice of other flags equally secure
and less easy of detection and punishment, the favourable inference
hence arising must be neutralised. “If Jennings” (the master of the
vessel) “was an adventurer, if he were, as suggested, a very clever and
intelligent person, and very conversant with every thing to be done on
this occasion, a competent master of the vessel, supposing the slave
trade to be intended, a thing which requires qualities one is sorry to
see exercised so ill--a great deal of courage, sagacity, and presence of
mind, and an unscrupulous readiness to employ them for the commission of
this felony, not to be found in everybody--a man of such a description
would be the paramount object of a slave trader, whose aim would be,
whoever the owner may be, to elude all search, so to manage the thing as
that the cruizers of any country shall not stop him. Probably, if the
adventure succeeds, it must succeed by such means, so that one sees a
perfectly good reason why, consistently with this being a slave trading
voyage, it may have been English owned.” Not a word appears in the
proceedings against the character of this man, neither does it seem
intended by the learned Judge to impugn it, simply to say that _if_ the
man did possess the qualities of cleverness and courage attributed to
him, these qualities being very serviceable for wicked purposes, it is
to be inferred that they were intended to be applied to a slave trade
adventure, since no plain and simple account of a lawful intent on the
part of the foreign merchant has been given by the charterer in England,
with whom the law is to be supposed to make a knowledge imperative. The
prosecutor knew, although it was not before the Court, that this man had
been tried for the very identical offence in this matter of the Augusta
at Sierra Leone, and had been acquitted; for _the chief witness in this
prosecution_, in which, be it observed, Jennings is coupled with me (see
the indictment, page 211), _was the prosecutor in the proceedings
against him before the criminal court of that colony_; and he himself
stated before the Committee of the House of Commons (see Lieutenant
Hill’s evidence, page 84), that Jennings had been acquitted. And here,
by the way, let it be noticed, that _Jennings is at this moment under a
prosecution in London for the very crime for which he was tried at
Sierra Leone and there acquitted_, the chief and really the only
witness, upon whose sworn depositions before the Grand Jury here the
bill against Jennings has been found, being the very same person who
instituted the prosecution at Sierra Leone, which terminated in the
acquittal of Jennings. And thus, while the individual so acting is at
this moment on his way to take possession of his appointment as
governor of the Gold Coast, the unfortunate man, who he knows cannot be
tried a second time, is in prison.
Further, as the vessel had been admitted (how reluctantly may be easily
seen) by one witness not to have been furnished with equipment of any
sort for slaving purposes, and had been rescued from the attempt to
raise a doubt upon this point, by the evidence of another witness, this
is shown also as in no way serving the shipping-agent in England without
giving the plain and simple account of what was intended by the foreign
merchant residing abroad. “I should think it would be quite a matter of
course, even if the vessel was intended to be sent to promote the slave
trade, that she should not go out with shackles or leagers, or any thing
of that kind on board; for if they are on board, the vessel would be at
the mercy of any Custom-house officer.”
The vessel had, however, been at Cadiz, where, according to the
representation made on behalf of the prosecution she was really meant to
go first, in order to provide herself with the slave instructions, which
the Court would not receive, though strongly pressed, as evidence
against the agent who had managed the vessel in England so far as
chartering and loading her; and yet, although it had been said by
Serjeant Bompas “that wherever a vessel leaves a place such as Spain, or
some place where she may leave with impunity, with all her equipments
complete,” she does so; and although this vessel, which has been charged
by the prosecution to have gone into Cadiz for the very purpose of
helping the illegal object imputed: she is found not to have been there
equipped--and that not from any great attention to the safety of the
adventure, for the letters contended to be so clearly slave instructions
for the voyage seem to have been there put on board--still the
observation is not the less applied, that she was not equipped for the
slave trade, because she could not have been so in an English port,
without any reference to the fact that the prosecution had contended she
could and would have so been at a Spanish port. There she had, however,
touched; and that too, according to the prosecution, for the very
express purpose of helping the illegal object in a manner more
condemnatory than any other. The thing demanded from the prisoner is,
however, a plain and simple account of the intent of the foreign
merchant in this transaction, and without his being able to give that,
every other circumstance which may be favourable to him, either vanishes
away, or converts itself into a weapon against him.
Again, the counsel for the defence had put the following case to the
Jury:--“You may be manufacturers of guns or gunpowder, or
commission-agents living in this country, who, for the purpose of
shipment, purchase those goods; in either case a party comes and says--I
want 1,000 muskets and six tons of gunpowder to be shipped to a certain
place on the coast of Africa. I ask you, are you first to consult the
map to ascertain the place, and, having ascertained where it is, are you
to go to Captain Hill or Captain Denman and inquire whether they have
been upon the coast of Africa, and can tell you the character of the
trade carried on there? Are you next, the person being a Spaniard or a
Portuguese, to inquire whether they ever deal in slaves; and if you find
they do, are you to say, I will execute no order you give me?”
Upon this the learned Judge remarks:--“That Zulueta & Co. stand in a
very different situation from that of a person who is simply the
manufacturer or dealer in goods, and who has those goods ordered, and
who, inquiring Where shall I send them? is answered, Send them on board
the ‘Augusta,’ now lying at Liverpool. It would be a strong thing from
that circumstance to infer that a person sending those goods on board
had any thing to do with slave trading; but that appears not to be the
nature of this transaction. In regard to there being a slave trading,
all that is done, is done by Zulueta & Co. It is not merely that they
had goods sent on board the ship, but they chose the number of the goods
to be sent on board the ship, goods which they had bought, for which
they had negotiated; and they made out such charter-party, and that
charter-party provides that the ship shall proceed to Gallinas on the
coast of Africa.”
In the case of the manufacturer of the goods, described as receiving an
order and executing it, and shipping the goods on board a vessel for the
Gallinas, it would be _strong_ to infer that he had any thing to do with
the slave trade. Why so, but because every one of these acts is
compatible with ignorance of the objects that are or may be intended?
Now, the learned Judge had previously established that the acts of
buying and shipping, chartering, and dispatching, are not necessarily in
themselves conclusive of guilt, which of course they are not; how, then,
is the inapplicability of the comparison put by the counsel for the
defence to be maintained, but by laying down the principle, that for the
purpose of a defence under this charge, the commission-agent must, at
all events, be required to be possessed of, and therefore to be able to
give, a plain and simple account of what the merchant abroad intended;
and this once laid down, nothing that comes short of it must be suffered
to tell in his favour.
The preceding remarks are scattered over the whole of the summing up,
and accompany a recapitulation of the particulars of the case. They are
here brought together in succession, for the purpose of showing the
manner in which the circumstances of the case, in a proceeding of this
kind, are treated. It is very true that an introductory remark precedes,
laying down “that it is necessary undoubtedly, on the part of the
prosecution, that there should be a case made of knowledge, on the part
of the prisoner, of the purpose for which this adventure was meant.” The
whole process which follows is of a nature which would appear contrary
to this principle, unless with the qualification that the proof is to
consist in the prisoner not giving himself a plain and simple account of
something innocent meant by the foreign merchant residing abroad; and as
if the law left no alternative to the shipping-agent, who buys and ships
the goods in England by his order, but to do this; or, _ipso facto_, by
not doing so, to stand self-convicted of the guilty knowledge.
Under this view of the requirement of the law, which I have now followed
throughout this charge, the concluding remarks of the Judge seem to be
dictated. “Now, inasmuch as there are two other partners, and it is
probable there might be some other persons in the concern, there arises
this consideration. It is true, supposing that there were a case made,
but that the prisoner was innocent of it, that he could not call
Martinez & Co. on that supposition, as he might on the supposition of
there being no slave trading; for Martinez & Co. would not be innocent
persons, and they would not be willing to come into this country and
say, ‘We carried on the slave trading, but it was disguised from our
correspondent, Zulueta & Co.’ If you think there is a case requiring an
answer, the question then is, would there have been any difficulty in
the prisoner calling his two partners, and others conversant with the
business of the firm, and proving that Zulueta & Co. knew nothing at all
about this, that they had not the least suspicion, that Martinez & Co.
never communicated the fact to them, and that the illegal purpose was
utterly unknown to them, for some reasons which the prisoner cannot
give, but which his partners could? It would be extremely desirable they
should do it, if the defence existed in point of fact.” And lastly, the
learned Judge concludes his address to the Jury, by directing their
attention to the evidence of the character of the prisoner, remarking,
that it is “a character I should say very strong indeed, and almost
conclusive, supposing the case were one that did not admit of an answer
in point of fact.”
Here the same principle of demanding a justification of innocence is
carried out, which pervades the whole of the summing up, and of every
part of the management of the case by the Court. It is not said, in any
one part of the charge, that the prosecution have made out either a case
of slave dealing, or any knowledge of such a thing being intended, or
known to be intended by the prisoner, against which a contrary case
should be opened and proved; but only that evidence which the prisoner
should give of innocence is pointed out; and, what is most remarkable,
the following circumstance was not thought worthy of notice.
Mr. Fitz-Roy Kelly (the counsel for the defence) had in the outset, when
Mr. Serjeant Bompas was opening the evidence for the prosecution,
brought into Court every book, letter, and paper of the firm of Zulueta
& Co., with the clerks in whose keeping these documents constantly are:
they consisted of the journals, ledgers, letters, bill-books,
memorandum-books, original letters of the house of Martinez & Co., of
the Havannah, and Martinez of Cadiz, since 1839, one year before these
transactions originated, up to 1841, one year after their termination;
and, as will be found in page 303, Mr. Kelly made the following
tender:--“I ought to add, as the notice to produce has been referred to,
and is now upon the table, that the notice calls upon the prisoner, Mr.
Zulueta, to produce all the books, documents, and accounts of his house,
between certain dates, at all relating to the transaction in question;
and all letters written, and copies of letters written by this house, or
any body for them in relation to this matter. My Lord, every document
there mentioned is here in Court, and in two minutes ready to be put
upon the table.... The greater part are in Spanish, and the prisoner at
the bar can distinguish them; but the clerks who kept these books, the
corresponding clerk, and the clerk in whose handwriting they are, are
ready to speak to any thing my learned friend may call for from the
beginning to the end.” This is not taken any notice of by the learned
Judge, when pointing out that the prisoner should have called his own
father and his own brother, the only partners in the house, to prove
that Zulueta & Co. had no knowledge of any slave trading being intended,
although the prisoner himself had so stated the fact to be before the
Committee of the House of Commons, in the evidence which had been read
in Court; and if the statement was objectionable, as being from the
party now deeply interested himself, when in a very different situation,
it is not perceived how that objection would not have held with tenfold
strength at that moment against their evidence. Thus it remains on
record, that nothing short of a plain and simple account of what the
merchant abroad intends, made out by the defendant, will answer any
purpose of the slightest advantage to himself. It is enough in the case
of a vessel employed by an agent in England to carry goods, bought and
shipped by himself, by order and for account of a foreign merchant
residing abroad, if the prosecutor show a general slaving at the port of
destination.
And thus have I disposed of the last point which I proposed to
illustrate out of the summing up of Justice Maule, in order to show the
position of merchants who have intercourse of business with countries
wherein slavery, and the slave trade, is still permitted to exist.
I began by showing the facility afforded by the law to any individual
whomsoever, who may choose to undertake a prosecution, not only without
the consent, but against the recorded judgment of the Legislature, and
the known opinion of those officers of the Crown who are especially
charged with the prosecution of public offenders. I have shown, that
this may be done by any man--whether from motives of private resentment,
or of private interest, or of wanton malice--whether under a fanatical
hallucination, or from a desire of vain-glory, or from a combination of
all or of some of the very worst passions of the heart with the less
inexcusable errors of the head, it matters not: the search for the
particular motive operating in any one given instance is indeed
unprofitable, and whilst it cannot do much towards reclaiming the
perpetrator of the mischief, would but little improve the moral tone of
mind of his victim, yet the fact itself remains unaltered, _viz._ that a
prosecution of this kind, in the name of the Queen, which the forms of
justice require to be used, and on the plea of a public spirit, may be
taken up by any man in defiance of a recommendation to the contrary by
the House of Commons, upon a case canvassed and decided upon by a
Committee of that House, and against the opinion of the law officers of
the Crown. It has also appeared, that to the general and very powerful
objections which are suggested by the common sense and reason of mankind
against this practical reversion to the state of savage life in which a
man can take such means of attack upon his fellow-man as he thinks will
effect his purpose best, with this sole difference, that the
self-appointed public prosecutor may inflict even greater mischief with
the weapon of the law than the savage with the knife, and more securely,
this evil is added, _viz._ that this private avenger of public wrongs
may adopt the form of a secret information before a Grand Jury, thus
avoiding the necessity of appearing as the accuser, unless he chooses so
to do, at his own most convenient time, and always preserving the
secrets of his own statements, by means of which the first blow at all
events will have been successfully, irremediably, and fatally inflicted,
and thus placing himself above any responsibility on that account. Then
it has been seen, that at this stage of the proceedings, and under all
the ignorance as to the prosecutor and as to the depositions upon which
he is charged, inseparable from the nature of the proceedings, a man,
reputed honourable, as unsuspecting himself as unsuspected by his
fellow-citizens, may be dragged from his office and from the bosom of
his family, with imminent risk to his business, and with still more
fearful effect upon his dearest connexions; and under the shock of his
own feelings, which so awful a situation must naturally produce, is
conducted as a common felon under charge of the police to the
station-house, and thence to the Old Bailey, whence he can only be
suffered to depart (of course in exactly the same state of ignorance
under which he entered the Court), when the person who arrested him
shall have consented, and on such terms as he shall consent to; and then
only will he be allowed to return to his distracted family and prepare
his defence--against what? against a technical definition of some facts
in which he has played some part, but which being so defined as to
square with the application which may be meant to be made of a certain
Act of Parliament, is sure to bear no kind of resemblance to the real
manner in which the said facts occurred, and of course none at all to
the impression which they left on the mind of the accused, or to the
form in which alone they can present themselves to his mind; and,
therefore, such a definition can convey no information of the nature of
the depositions secretly made against him, and cannot consequently
assist him in preparing evidence against them. He must launch into the
regions of imagination for every possible construction which may be
given by any man to those facts which have been really done by him, and
prepare evidence upon every one of such possible constructions, at an
expense and amidst perplexity which may be supposed, and after all most
likely to no purpose, for probably the construction to which the proof
will be directed by the prosecution may be one against which no
counterproof has been prepared; and indeed it will be so, for with this
very object the proof will be directed to the construction least likely
to occur to the accused, and that upon which a counterproof will be most
difficult--for all which the nature of the Act of Parliament has been
seen to afford peculiar advantages.
In this state of things the trial comes on. The facilities thus far
given to an unknown accuser have been seen, and to so frightful an
extent, that even if the trial proceeds no further, an amount of
incalculable and irreparable evil and misery may have been perpetrated.
These facilities, it has been further seen, are not at all balanced by
the strictness of the requirements of the law from the prosecution, they
are all applied against the accused. The definition of the crime by the
Act of Parliament is itself loose and capable of an unlimited
application, and it is understood and laid down in the very largest,
thereby including acts which are notoriously and expressly admitted to
be in themselves perfectly innocent: the only qualification is the
_knowledge_. This is brought to a lower point in the scale, _viz._
_suspicion_. With a show of ingenuousness, as if to put down _a
quibble_, which in Court sounds like a zeal for the truth, the question
is made to be, not whether _you knew_, but whether _you suspected_; and
next, whether _you had reason to suspect_; the tendency really being
towards the real point, to which you are only being gently let down,
_viz._ whether witnesses can be found who will say that they themselves
_knew_ very well a great many things, which ought therefore to have been
known by yourself, and that therefore you must at least _have
suspected_.
Then the prosecution is not limited to the proof of one particular
charge: here it is suffered to remain quite at large--they need not
define the act they mean to charge, whether it is this, or that, or any
thing else, upon the accused. The knowledge of the intent, in which
every lawyer in the land whom you may consult previous to entering into
any operation, will tell you, _before you are indicted_, that the guilt
consists, after being brought down to a lower point, as observed before,
is made out to be, 1st, any knowledge, not the knowledge in the
particular case; 2nd, the knowledge of _others_, not _your_ knowledge;
and the proof of it is no further put upon the prosecution than so far
as to make out a case of _probable knowledge_, founded upon evidence of
some general acts done by certain persons on other occasions, not the
one in question, in distant countries--acts to which you are not shown
to have been a party, or even probably acquainted with--persons in
respect of whom all your proceedings in England are admitted to be in
themselves, and as done towards them, perfectly innocent; such acts
being done upon such other occasions by such persons in countries far
away, little known, with which no regular means of communication
exist--countries almost unknown to every one in England, and not at all
proved to be known to yourself: and all this evidence given by
individuals not in circumstances analogous to those in which the accused
stands, but by individuals, and by no others, who in the exercise of a
peculiar duty have sometimes visited the countries in question; and
therefore leaving the whole of the case open to this remark, that whilst
it is not at all shown, either from your own acts, or from the facts
themselves, that you in England must necessarily _have known_, there is
an evident impropriety in pushing the witnesses to the extent of
proving, that nothing but what they said to have happened on other
occasions in other places, could have been the ultimate issue of an
unaccomplished speculation, intercepted by one of the witnesses, to his
evident advantage.
It has lately been shown that such a case of probable knowledge, so made
out, and so substantiated, will go to the Jury; and in going to the Jury
nothing will avail you, as far as the law goes, but your being able to
give “a plain and simple account of what was intended by a foreign
merchant residing abroad,” whom you must even bring over to give
evidence of what he intended to do with goods shipped by yourself in
England, in consequence of a simple order as a mere commission-agent, or
to show an impossibility of your being aware of that intent whatever it
may be. Without complying with one or other of these two requirements,
your case shall go to the Jury, accompanied by every unfavourable
inference; and what should have been for your advantage is turned
against you. The readiness and openness of the party accused in giving
every explanation upon the very first intimation of a suspicion existing
on the subject--the credit attached by every one capable of correctly
estimating those explanations, whatever circumstances of a favourable
nature may lie on the very surface of the case itself--the
respectability of the accused, his rank in society, and high character,
as vouched by men of the first standing, and who have every opportunity
of knowing him and his acts--his wealth, his education, his
knowledge--qualities peculiarly adapted to this kind of felony, which is
intimated to be the felony of the honest, the wealthy, the educated, the
well-informed--all these things seem in the exposition of the law to be
literally against him. Nevertheless, these circumstances, combined with
the impression produced by the inquisitorial nature of the original
proceedings, together with the irresistible force of that axiom, that “a
man must be proved to be guilty, and not called upon to prove himself
innocent,” may--and thanks be to God, did, in the instance before
us--blunt the edge of the murderous weapon brandished over the head of
the accused.
There may be something so revolting in the whole conduct of such
proceedings to the consciences of men, as to stand in the way of a
conviction by an English Jury; but it has been seen in what way every
other indignity may, at all events, be safely inflicted; and as
affecting men and families of certain education and feeling--who, be it
never forgotten, are the very parties said to be most obnoxious to the
charge--a verdict of guilty need not arrive, to produce evils as great
or greater than any penalties which it is possible for any human law to
impose. And when it is considered--first, that the legitimate popular
sense of words is distorted in order to call _slave trading_ that, which
is neither directly nor indirectly _dealing in slaves_; secondly, that
under the guise of a question of fact, a very subtle metaphysical
argument about the nature and the degree of knowledge in the mind of an
individual, is the thing really submitted to minds the least likely to
apprehend the very nice distinction upon which the decision must
hang--and, lastly, when every means are industriously resorted to in
order to make it appear that the crime largely prevails in the class to
which the accused is likely to belong, and to represent that the only
difficulty is to get over the technicalities of legal evidence, but that
moral evidence abounds--when all these things are taken together, it is
easy to discover how much even the failure of such a prosecution as
this, facilitates the next attempt: perhaps it may be practically found
that it does so, more than its success could have done.
The resolution of the London Committee of the Anti-Slavery Society of
the 8th of December, which has been already quoted, broadly states the
prevalence of the crime among British merchants; and another, of a still
more recent date, besides repeating the same assertion in another form,
clearly intimates that the obstacle to its being visited as it deserves,
does not consist in the want of proof of the existence of the guilt, but
in “the difficulty encountered in the course of the prosecution in an
English Court of Law:” that is, in the technicalities of the rules of
evidence, even after the stretch of these rules, which this particular
Act of Parliament would, by the experience of the late proceedings, seem
to demand.
These resolutions, just published, passed by the Committee on the 29th
December, are as follows:--
“Zulueta’s Trial.--At a meeting of the Committee of the British and
Foreign Anti-Slavery Society, held at 27, New Broad Street, on Friday,
December 29, 1843, George William Alexander, Esq., in the chair, the
following resolutions were adopted:--
“I. That this Committee, regarding the recent trial of Pedro de
Zulueta, Jun., on a charge of slave trading, in the Central Criminal
Court, on the 27th of October last, and following days, as an event of
the highest interest and importance, feel it their duty to express
their sentiments on the state of things which has been developed by
it.
“II. That, abstaining from all comment on the verdict of the Jury,
this Committee regard the following points as brought out with great
force by this trial, _viz._--
“1. That articles of British manufacture are principally used on the
coast of Africa in barter for slaves.
“2. That British merchants who are engaged in furnishing such supplies
to slave traders are practical supporters of the African slave trade.
“3. That, although a British merchant may furnish supplies to the most
notorious slave traders in the world, the evidence by which a charge
of aiding and abetting the slave trade can be substantiated against
him is of such a nature that it is extremely difficult, if not almost
impossible, to prosecute such an offender to conviction.
“4. That the practice of aiding and abetting the slave trade by
supplying goods to slave traders prevails to a considerable extent
among British merchants, and that, by a portion of the mercantile
community, it is not regarded with the sentiments due to its
flagitious character.
“III. That this Committee regard in particular the last fact now
stated with the deepest and most poignant regret; and that they
earnestly invoke, not so much the fear of punishment as the sense of
honour, of justice, and of benevolence, in the British community, for
the correction of so great an evil.
“IV. That the difficulties encountered in the course of this
prosecution in an English court of justice, and the extended
ramifications of the slave trading interest which have been developed
by it, have, in the judgment of this Committee, confirmed the
principle held by the British and Foreign Anti-Slavery Society, that
the only effectual mode by which the slave trade can be abolished is
the abolition of slavery itself.
“JOHN SCOBLE, Secretary.”
In these resolutions, the Committee describe the particular matter which
they had under their consideration, _viz._ the supply of British goods.
Not so in the previous resolution of the 9th of December (see page
xxvi). In it a hope is expressed, that by the proceedings against Pedro
de Zulueta, “a salutary check will be given to the notorious implication
of British capital and commerce in that nefarious traffic.” How this
implication takes place is not pointed out. Upon the merits of the
matters contained in these resolutions, it is not, of course, my
intention to enter; I take them as they are put forth, for the only
purpose which perhaps gives them any value or importance, _viz._ as
expressions of the sentiments and opinions of people who show every
disposition to sanction, and have the pecuniary means required in order
to encourage or to assist others in the use of that power of private
prosecution which every one possesses, even if they themselves are not
inclined to exercise it in their own persons.
Now, although it is not distinctly stated in the resolution just quoted
how this _notorious_ implication of British capital is supposed to take
place--not to say any thing at present about a most unjustifiable use of
the word _notorious_, which, in these matters, is constantly made--the
mode in which the implication takes place must be supposed to be large
enough to be notorious--large enough, when even a check to it is made
the object of hope and the subject of a resolution, which, as it conveys
a serious charge against fellow-citizens, nothing but a very
overwhelming sense of the necessity of a _check_ could have induced the
Committee to overcome the painfulness of publishing. The term could not
properly apply to any direct concern in the slave trade; _that_ would be
something more than _implication_. It cannot be confined to the supply
of goods, since this is a subject treated in a separate set of
resolutions. It must be taken to apply to other operations also, such as
occur in the progress of a mercantile intercourse with other countries
in which slavery, or the slave trade, are permitted to exist, and must
apply to all or any transactions with those countries, at least, unless
a clear and distinct separation can be made that will render it quite
certain and quite capable of proof that neither the slave trade nor
slavery can possibly be forwarded directly or indirectly by the
transaction. This is the only certain way of avoiding _implication_.
This sense of the charge against British merchants at large, is perhaps
the only one which can render either intelligible or practicable the
observation which was so emphatically delivered by the learned Serjeant
Bompas in his opening speech at the trial, that “if merchants in this
country would not accept bills drawn by slave traders, if they would not
send goods from this country to be employed for the purpose--in fact,
the trade could not be carried on at all.”
And whether this rather extraordinary assertion be or be not correct, I
deal with it as with the resolutions of the Anti-Slavery Committee--it
is quite enough, upon such a question, and with such momentous interests
at stake, that such opinions prevail in certain quarters, and that the
power exists of giving them that fatal effect which these proceedings
reveal, in order to force upon us, as merchants, the consideration of
whether any mercantile transactions whatsoever can possibly be carried
on with countries wherein the slave trade or slavery exist, with any
real safety to our persons and to our property, whilst things remain as
they have been shown to be in the practical development of the law.
It is very true, that previous to the late elucidation of its working,
there were such high legal authorities on the subject, as will be found
in the pages immediately following this address; and even now, if a case
is placed before the very highest counsel of the land, you will be told
that _knowledge, wilful knowledge_, of the _guilty_ intent can condemn
the acts upon which you are seeking advice--that that, of itself, will
condemn the most indirect--and nothing short of that can condemn the
most direct act of abetting the slave trade. But, in order to make good
a charge, the evidence of a _probable knowledge_ is made up of those
very acts which, without presupposing the knowledge, you had been told
are innocent, perfectly legal, and such as you could perform. When once
that case of probable knowledge is thus made out, you are called upon to
meet it with a case of your own, in which you cannot allege, with any
success, the innocent nature of your acts; for although those have been
already declared to be innocent in themselves, they are also taken as
evidence that you must be possessed of _a knowledge_ of what they were
intended to be made subservient to by a foreigner at some thousands of
miles distant, in a country which to you may be _terra incognita_.
The question resolves itself therefore into one of prudence, about which
you will be told by the learned Counsel, and properly told, that you
alone can be, and you alone must be, the judge, _viz._ whether, under
the state of the law which has been developed, it is safe to enter into
any dealings, not which you know or suspect (this is _a fraud of the
law_), but which _may be_ rendered subservient, however indirectly by
others, to a slave trading purpose. The letter of the law seems to speak
of _knowingly and wilfully_ aiding and abetting the slave trade, and so
it is expounded by the highest legal authority of the land, when
consulted upon any one case in perspective; but the practice renders
this a most _egregious fraud_ on the part of the law itself, which
presents itself under false colours; for, whilst in theory it does not
permit of any other advice being given for its observance than that just
mentioned, in practice it has been seen how the proof of your knowledge
is established, not by evidence produced against you, but by that which
you do not produce when a case of probable _knowledge_, founded upon
knowledge of others in totally different circumstances, has been made
out.
These things speak for themselves and show what is the practical
situation of merchants trading with countries in which dealing in slaves
and slave negotiations are both legal and of common occurrence. I need
not say, that the United States, Cuba, Brazils, and a large portion of
Europe, without talking of Africa, fall exactly under this description.
It has been admitted, for indeed it cannot be denied, that it is
impracticable to draw a line of separation, in order to distinguish the
illicit from the licit traffic, in countries where they both subsist,
for they are interwoven and mix themselves with, and merge the one into,
the other. This is perfectly clear, and indeed the only intelligible
account of the matter. Under such a view of the nature of the
thing--after what has been brought to light in the late proceedings as
to the mode in which a man may be attacked, with ruin staring him in the
face at the first onset, whatever the subsequent result may be, seized
on--laid hold of at any, perhaps the most critical, moment--after what
has been seen of the method in which his prosecution will be suffered to
be carried on, and the manner in which the evidence will be made to
bear, in order to prove the _knowledge_ which constitutes the
guilt--after seeing that no precaution can guard a man against the
attack, and no endeavour to ascertain the real sense of the treacherous
law, which speaks one thing and means a very different one--after seeing
that as a merchant of wealth, character, and education, he carries in
those very circumstances as many presumptions of guilt--after it has
been shown that the only thing which can save him, according as the law
is laid down and administered, is that which in the nature of mercantile
transactions is, and must be in almost every case impossible--after all
this, which the late proceedings have so strongly brought to
light--there remains but one safe course, _viz._ to abstain from all
mercantile intercourse with countries in which slavery or the slave
trade exists.
The absurdity which appears on the face of such a statement as this just
made, involving as it does the cutting off communication with half the
world at least, and leaving the communication with the other half very
much on the footing of an inconsistency, renders the accuracy of the
rule, as a conclusion from the preceding reasoning, very suspicious. I
appeal, however, to every candid and honest mind whether it be or it be
not the conclusion which, but for its _absurdity_, (if so it is to be
called) would be imperative, and such as could not be avoided without
manifest want of honesty. If such is the real fact--if the conclusion is
just and legitimate, and yet it leads to something absurd and wrong;
then the principles upon which it proceeds must themselves be the
_wrong-doers_. The state of the law, which leaves no other alternative
than that of an impracticable absurdity on the one side, and on the
other an exposure, imminent and threatening, to an indictment, followed
up by the most terrible consequences, even if a conviction does not take
place--must be wrong. It deserves a stronger epithet, lest it should be
thought that by wrong is only meant _unwise_--it is positively of the
very nature of a national crime--it is a deep moral stain upon the
people who suffer this state of things to continue in all its hideous
deformity, whilst the victims to such a state of the law could only be
looked upon as barbarously sacrificed: the people tolerating its
continuance, when once made aware of what was being done, could be
considered only as a race of heartless, cruel tyrants. In the pursuit of
a praiseworthy object it is very possible, and indeed it is not
uncommon, for a nation no less than for an individual to betray itself
into a very false position, which is made so much the more mischievous,
because, in the case of the nation no less than the individual, people
are found ready to take advantage of that position. But so soon as the
evil reveals itself in this practical shape, the nation, quite as much
as the individual, is called upon to remove the very possibility of a
repetition of the act of oppression arising from that false position.
And what is the false position in which this country appears before the
whole world in the matter before us? It is this. Here is a people with
whom trade and manufactures form very important elements of wealth,
independent of the justly admitted tendency of both to promote
civilization--a most important, but not the present consideration--these
people thrive largely by their mercantile intercourse with Cuba, with
the Brazils, with Spain and with Portugal, with the United States, with
Africa, so much so, that they cannot dispense with that trade. Those of
their people who follow the commercial career in all its branches, their
merchants, manufacturers, and ship-owners, and conduct the intercourse
with those countries, materially contribute to the welfare and to the
prosperity of every class of the community in which they live. They
contribute not a little to the support of the State, and when an
emergency arises, when the credit of the country and the honour of the
Crown are at stake, they are among the first upon whom the call is made,
and is not made in vain: and yet the state of the law among this people
who derive the important benefits, which have not certainly been
exaggerated, from a commercial intercourse with the countries just
mentioned, is such as to place those of their fellow-countrymen, who
conduct that intercourse, and are therefore nearest in contact with
those countries, liable to be dragged from the scene of their labours,
so vital to the prosperity of this people, as common felons, upon an
indictment secretly procured and obtained; and their very acts,
notoriously necessary for carrying on the very operations of commerce,
which the country cannot dispense with, are in the first instance to
form the presumption of the guilt, and afterwards the proof of it,
unless they can prove them to be _not guilty_. It is true that this
people have anathematized a branch of trade which subsists in those
countries, and have expunged that trade from their code of licit
pursuits at an immense sacrifice to themselves, and are determined to
extinguish it among the nations of the earth, as far as it can be done
by lawful means; but inasmuch as they cannot dispense with all other
intercourse with other countries, although fully aware that from that
intercourse the proscribed traffic must necessarily derive assistance
(since it cannot be separated from any one licit pursuit in the
countries wherein it prevails), they are bound so to construct the law
as to protect the men who conduct that intercourse, against any attacks
which may be founded more or less on the use to which others, and not
themselves, may turn the acknowledged necessary and legitimate acts,
without which the intercourse cannot exist. And if such be the meaning
of the law, as I have no doubt whatever there is not one man in Great
Britain at all acquainted with these matters, who has not been, to this
moment, in the understanding that such and no other was the state of the
case--if it be not meant that the intention is that a law shall be made
with apparently one meaning, and to be used for a quite different
purpose--when the perversion which it seems to authorise shall have been
discovered, sharpened by the application of the right of private
prosecution, and in the form of a secretly procured indictment, which
destroys before it convicts--there is only one of these honest courses
left--_either let the law--a clearer law--be substituted for that which
exists, or let it be clearly explained; and, at all events, let the
right of prosecution be placed exclusively in hands, and limited to a
course of proceeding, which will afford some guarantee for its right
use_. Let us cast away from us the worst features of the Inquisition.
It cannot be meant to leave matters so--that the nation shall be
deriving all the benefits of commercial intercourse with the countries
already mentioned, trusting to our desire for profit as merchants to get
the better of our prudence as reasonable men--that we shall be content
to run the risk of private prosecution, and secretly procured
indictments, of arrest, imprisonment, ruin, disgrace, transportation,
the sacrifice of all that is dear to a man on earth; and, therefore,
that the nation will go on prospering by our labour, whilst we ourselves
may be told that we need _only be a little more_ careful. And all this,
as if it was meant to be insinuated that if a victim is now and then
made, it is expedient that it should be so; that it is not extremely
harsh, since merchants are to be thought of only as men accustomed to
risks, and therefore who get obdurate against adversity--as if it were
assumed, that as to the victim so made, it is sure to be some one who
has deserved his fate by a more than ordinary degree of temerity, by
going a _little_ too far, or by an act of rebellion against the attempt
to fix the brand on his forehead, which really, when once we have
suffered ourselves to be so far stigmatised, there can be little doubt
will be designated as a degree of fastidiousness to which an exclusively
money-making and money-loving race can have no just pretensions. You may
trust to their rapacity (it would seem to be argued by this defamatory
process, which before it is openly avowed must work its way by implying
as much in action, as, if it were not too revolting, would be stated in
as many words)--you may trust to their rapacity for any necessary amount
of risk being encountered, and therefore no fear of trade being given
up, because we make it a _little_--only just take care that it shall not
appear too dangerous.
This is not, I am sure, the position which is meant to be taken by the
country towards a profession heretofore deemed honourable, and which has
become interwoven with the highest ranks of our society. It is not, it
cannot be meant, that such be the state of things at home, as between
the merchant and the country.
Neither is another position (in every moral point of view equally
indefensible) to be taken by British merchants towards their
correspondents abroad, even supposing it could last. It is well known
and admitted, that a mercantile intercourse imposes a tacit contract
between the two parties who carry on a correspondence, a breach of which
can be visited by the law; that in the progress of the intercourse all
acts mutually required within the mercantile usage, and not otherwise
illegal or improper, shall be performed. If a man carries on a
correspondence with another and a course of business, he is not at
liberty, either as a matter of principle or of law, to break it off when
and how he pleases. Are we called upon as merchants in England, either
by the requirements of the law, or by public opinion, to encourage our
foreign correspondents to send their sugars and their coffees, their
tobacco and their cotton, their copper ore, their minerals, and other
produce, to us in England, and when we are quite sure of our profits,
when they begin to dispose of the proceeds of their property, and we
fancy (which must be very soon, after what the late proceedings have
exhibited) that we may render ourselves liable to a prosecution--are we
then to turn round upon our correspondents, and say, “I cannot accept
your bill until you show me that its proceeds are not going to buy
slaves with?” “I cannot honour the credit you have opened in behalf of
A, B, or C, because I see in the ‘Anti-Slavery Reporter,’ that ‘he is a
_notorious_ slave dealer.’” Are we, when our correspondent sends an
order to buy a ship which is on public sale, and which may be employed
in any trade, and goods which you, reader, may happen to manufacture
yourself--are we then to turn upon our correspondent and say, “Show to
us satisfactorily that these things are not intended by you or any one
connected with you, indeed that they cannot be used, in promoting the
slave trade?”
And again, are we to trust to the circumstance of his being in our
power, and to the odium which the simple imputation of slave dealing
will attach to him, to bear us out in our justification, should he bring
an action against us? Are we, upon receiving an order from our
correspondent, to lay it before counsel for their opinion, which we have
seen will advance us very little? Shall we disclose the name of our
correspondent with the insinuation that he _may be_ a slave dealer, or
that we suspect him to be one, or that some one else suspects him, thus
helping, as far as we are able, to put his property in peril, and to
render every communication with him dangerous? Shall we advertise our
counting-houses in England, not, as they have been hitherto considered
to be, the symbol of security and good faith, but as nests of treachery,
deceit, and suspicion? and shall our intercourse with foreign merchants
assume the character of covert _espionage_? A state of things such as
this, inflicting gross injustice, cruel injury, inexpressible
degradation, upon one class of men, and that class of which England has
had hitherto good reason to be proud--such a state of things at home,
and so much scandal and disgrace abroad, is not, cannot be, contemplated
without feelings of the deepest horror.
I denounce this state of things as involving a national crime--as
attended with national disgrace; I denounce it as a stain which should
be wiped off without delay from the character of a nation eminently
jealous of its public as much as of its private morality, as an offence
to the religious feeling which is not wanting among us; I appeal to the
conscience of every man in Great Britain against this state of things.
May I not take upon myself to say, that I make this appeal in behalf of
a class which yields to no other of the community in high principle or
right feeling--a class which is not at all below the standard of
morality, religious convictions, tastes, education, which may be set by
the most distinguished in this country? I do appeal to the Legislature
and to the Government of the land, which do not make laws or maintain
them as a snare or a trap against a particular class of their subjects.
I appeal to the Honourable Members of the Committee of the House of
Commons on the West Coast of Africa, before whom I appeared in 1842; I
appeal to them as senators, as gentlemen, as men of honour and
principle--I do appeal to all, whether the position of merchants in
mercantile intercourse with countries in which the slave trade and
slavery exist, should remain as it has been shown to be now by the late
proceeding; whether the laws should not be made such, that, whilst we
should be answerable for our own acts, and for our participation and
consent in the wrong acts of others, we may not be undone before we are
even heard in our defence; that we may not be required to prove
ourselves innocent before we are proved to be guilty; and, above all,
that the right of prosecution may be confined to such hands, and its use
to such a procedure as will afford the British merchant a guarantee
against private, malicious, secretly conducted attacks, and will make
his personal security something more than a mockery. I make this appeal
with the same confidence in the result, which my conscience felt when I
stood before the British Jury, into whose hands it pleased Providence,
by so unexpected a proceeding, to place, in point of fact, my very
existence--the existence of all that is dear to me on earth--of much
that the world has had opportunities to try and has stamped as
honourable in character--of much, not the less valuable because the
world can never know of it--the Jury upon whose verdict hung the honour
of this country--a country for whose honour and estimation among the
nations of the earth I must feel strongly--and from which a gross and
cruel injustice would be doubly felt, bound to it as I am by those ties,
which it has been attempted barbarously to tear asunder, but which it is
only in the power of God to dissolve.