PEDRO DE ZULUETA the younger, of the city of London, merchant, and
EDWARD LAWFORD, of Drapers Hall, in the same city, gentleman, attorney
for the said Pedro de Zulueta the younger, severally make oath and say,
And first this deponent, Pedro de Zulueta, for himself, saith, that he,
this deponent, is a merchant of London, and has been so for the last
eight years, and as such engaged in large mercantile transactions with
houses in different parts of the world, but particularly at Cadiz, and
the Havannah. And this deponent saith, that he is engaged in such
business in partnership with his this deponent’s father and brother, and
that this deponent’s said father and grandfather were engaged in such
business for seventy years and upwards, and that their said house of
business is and always has been of good repute as honourable merchants,
and that this deponent has always occupied the rank and station of a
gentleman, and has always associated with gentlemen and merchants of the
first respectability. And this deponent further saith, that on
Wednesday, the 22nd day of August last, while this deponent was sitting
in his counting-house in Moorgate street, in the city of London, he was,
about three o’clock in the afternoon, to his great surprise taken into
custody by a policeman, in consequence, as he was then informed, of a
true bill having been then found against him for felony at the sessions
then being held of the Central Criminal Court. And this deponent saith,
that upon being taken to the said Court, and the said indictment being
exhibited to him, he found it to be an indictment against this deponent,
and against one Thomas Jennings, mariner, and one Thomas Bernardos,
mariner, for illegally and feloniously manning, navigating, equipping,
dispatching, using, and employing a certain ship or vessel called the
Augusta, in order to accomplish a certain object, which in and by a
certain Act of Parliament, made and passed in the 5th year of the reign
of His late Majesty King George the Fourth, intituled “An Act to amend
and consolidate the Laws relating to the Abolition of the Slave Trade,”
was and is declared unlawful, and for other illegal offences against the
said Act of Parliament. And this deponent saith, that he is not guilty
of the offences charged against him by the said indictment, or of any or
either of them, and that he never did, directly or indirectly, man,
navigate, equip, dispatch, use, or employ the said ship, or any other
ship, to accomplish any of the objects declared by the said Act to be
unlawful, and that he is not, nor ever was, directly or indirectly, in
any way or manner interested in the said ship or her earnings, or the
profits of any voyage made or to be made by her. And this deponent
saith, that when he was so taken into custody he was altogether ignorant
that any proceedings whatever had been, or were about to be, taken
against him in reference to the said ship, or to the offences charged by
the said indictment. And this deponent saith, that there had been no
previous examination or inquiry before any magistrate in reference to
the said charges, and that he was then, as he is now, altogether
ignorant of the evidence upon which such true bill was found, and has no
means whatever of ascertaining, except as appears by the said
indictment, what facts he is charged with. And this deponent saith, that
upon his being so taken into custody and removed to the Central Criminal
Court then sitting, upon a representation of the facts made by his
counsel to the Recorder of London, then presiding as judge of the
Central Criminal Court, it was ordered that he, this deponent, should be
admitted to bail himself in the sum of 3000_l._, with two sureties in
the sum of 1000_l._ each, to take his trial upon the said indictment,
and that he forthwith pleaded Not Guilty to the said indictment; and
that inasmuch as by reason of the lateness of the hour in the evening at
which such order was made, he was unable to procure two sufficient
persons as bail, the Recorder permitted him to enter into his own
recognizance in 6,000_l._, with one surety in 2,000_l._, conditional for
his completing the bail on the following morning pursuant to the said
order, which this deponent accordingly did. And this deponent saith,
that the said indictment now stands for trial at the next session of the
Central Criminal Court. And both these deponents say, that they believe
that this is the first instance of an indictment for felony preferred in
this country under the said statute, and that they believe that
questions upon the true meaning and construction of the said statute,
and other and difficult questions of law will arise upon the trial
thereof. And these deponents say, that in the judgment and belief of
these deponents this is a case which ought to be tried by a special jury
of merchants. And this deponent, Pedro de Zulueta the younger, saith,
that he is desirous of having the assistance of the most eminent counsel
upon the trial of this indictment, and that he has retained for that
purpose one of the most eminent of Her Majesty’s counsel learned in the
law, but that he is informed and believes that such counsel will not
attend at the Central Criminal Court. And this deponent saith, that if
he shall be permitted to remove this indictment by _certiorari_ into
this honourable Court he will have the assistance of such counsel, and
he will apply for a special jury, and will take all necessary steps for
having the same tried by a special jury, and for being defended therein
by such eminent counsel as aforesaid, with the least possible delay. And
this deponent, Pedro de Zulueta the younger, further saith, that the
facts and circumstances relative to the using and employing the said
ship or vessel called the Augusta, upon the occasion to which the said
indictment has reference, formed one of the subjects of an inquiry in
the year 1842, by a Select Committee of the Honourable House of Commons
appointed to inquire into the state of the British possessions on the
West Coast of Africa, and that three of the witnesses whose names
appeared on the back of this indictment, (that is to say) Captain the
Honourable Joseph Denman, Captain Henry Worsley Hill, and Colonel Edward
Nicolls, were examined before such Committee. And this deponent saith,
that it appears by the printed minutes of the evidence taken before the
said Committee, and this deponent believes the fact to be, that the said
Henry Worsley Hill captured the ship Augusta off the Gallinas, on the
coast of Africa, and that the said Thomas Jennings, then the owner and
master of the said ship, was tried in Her Majesty’s Court of Sierra
Leone upon a charge similar to that now charged against him and against
this deponent, and that the said Thomas Jennings was by such Court on
such trial acquitted. And this deponent saith, that he is one of the
mercantile correspondents in London of the mercantile house of Pedro
Martinez & Co., of Cadiz and the Havannah, and that the nature of his
commercial dealings with the said houses of Pedro Martinez & Co. is
confined to the usual mercantile business of purchasing and selling, in
this country, for the said Pedro Martinez & Co., lawful goods and
merchandise, and usual mercantile banking transactions, and that he has
no sort of connexion with him or with any other house, either here or
abroad, as to any dealings in, or in relation to, slaves or the slave
trade.
Sworn by both the deponents, Pedro de }
Zulueta the younger, and Edward Lawford, }
at my Chambers, Rolls Garden, Chancery } PEDRO DE ZULUETA, Junior.
Lane, this 8th day of September, 1843, } EDWARD LAWFORD.
Before me, }
T. ERSKINE. }
NOTE.--_The learned Judge, to whom the application was made for a Writ
of Certiorari, did not see fit to grant it._
CENTRAL CRIMINAL COURT.
MOTION TO POSTPONE THE TRIAL OF THE INDICTMENT.
THE QUEEN _versus_ ZULUETA AND OTHERS.
Proceedings at the Central Criminal Court at the Old Bailey, before
the Honourable Mr. Justice ERSKINE and the Honourable Mr. Justice
CRESSWELL.
(_Thursday, 21st of September, 1843._)
Mr. _Clarkson_. My Lords, I consider it my duty to take the earliest
opportunity of bringing under your Lordships’ consideration the case of
the Queen _v._ Zulueta.
Mr. _Payne_. My Lords, Mr. Serjeant Bompas leads me for the prosecution
in this case: he is not here now, but will be here in a moment.
Mr. Justice _Erskine_. This is an application only.
Mr. _Clarkson_. Yes, my Lord; I will give my learned friend every
advantage I can. We have given him a copy of our affidavit, in answer to
which an affidavit has been sworn, I understand the effect of which is
this, that Captain Hill--
Mr. Justice _Erskine_. What is the ground of your application?
Mr. _Clarkson_. The absence of material witnesses. I do not mean to
trouble your Lordships at any length. My application to your Lordships
is to postpone the trial of these indictments, upon the ground of the
absence of material witnesses from Spain, without whose evidence the
defendant cannot safely go to trial, and that application is founded
upon an affidavit, a copy of which has been supplied to the gentleman on
the other side some days ago. It was supplied immediately upon the
sitting of the Court. One of the witnesses who had been sent for, and
who was not expected to arrive, having arrived within the last two days,
and this indictment having been preferred without any application being
made to a magistrate, or without any notice to the gentleman himself. My
learned friends have made an affidavit in reply; and in order to save
your Lordships hearing two speeches from me, it will be better for your
Lordships to hear what my learned friends have to say in opposition to
this application and then to hear me in reply.
Mr. Serjeant _Bompas_. My learned friend seems to assume that the trial
will be put off as a matter of course.
Mr. Justice _Erskine_. He has stated the ground of his application,
namely, the absence of material and necessary witnesses, and he leaves
you to state his affidavit, and comment upon it as you please.
Mr. Serjeant _Bompas_. My learned friend has not quite correctly stated
his affidavit when he says his application is founded upon the absence
of material witnesses.
Mr. Justice _Erskine_. The affidavit had better be read.
Mr. Justice _Cresswell_. Have you got a copy of it?
Mr. _Payne_. Yes, my Lord.
[_A copy of the affidavit was handed to his Lordship._]
_The affidavit was then read by the Clerk of the Arraigns as follows_:--
In the Central Criminal Court.
The Queen }
_v._ } ON INDICTMENT
Pedro de Zulueta the younger, and others. } FOR FELONY.
The same }
_v._ } ON INDICTMENT FOR MISDEMEANOR.
The same }
Pedro de Zulueta the younger, of No. 22, Moorgate Street, in the City of
London, merchant, and John Lawford, of Drapers Hall, in the said city,
gentleman, attorney to the said Pedro de Zulueta, severally make oath
and say,--And first, this deponent, Pedro de Zulueta the younger, for
himself saith, that the above mentioned indictments are preferred
against this deponent, and against one Thomas Jennings, mariner, and one
Thomas Bernardos, mariner, the first mentioned of such indictments being
for illegally and feloniously manning, navigating, equipping,
dispatching, using, and employing a certain ship or vessel called the
“Augusta,” in order to accomplish a certain object, which in and by a
certain Act of Parliament, made and passed in the 5th year of the reign
of his late Majesty King George the Fourth, intituled “An Act to amend
and consolidate the Laws relating to the Abolition of the Slave Trade,”
was and is declared unlawful; and the last mentioned of such indictments
for conspiring to do, &c. And this deponent saith, that he was taken
into custody on the 23rd day of August last in consequence of the said
indictments having been found against him. And this deponent saith, that
upon his being so taken into custody and brought to the Central Criminal
Court then sitting, the Recorder of London then presiding as judge of
the said Court, ordered that he this deponent should be admitted to bail
himself in 3,000_l._, with two sureties in the sum of 1,000_l._ each, to
take his trial upon the said indictments; and that he thereupon pleaded
“Not Guilty” to the said indictments, and entered into the said
recognizances. And this deponent further saith, that when he was so
taken into custody he was altogether ignorant that any proceedings
whatever had been or were about to be taken against him in reference to
the said ship, or to the offence charged by the said indictments (there
having been no previous examination or inquiry before any magistrate in
reference to the said charges), and that he was then, as he is now,
altogether ignorant of the evidence upon which such indictments were
found, excepting that this deponent has been informed that the charges
contained in these indictments arise out of transactions in respect of
which this deponent was examined in the year 1842 before a Committee of
the Honourable the House of Commons. And this deponent further saith,
that Joseph Toplis, who was the managing clerk of this deponent’s house
of business at Liverpool at the time of the transactions in question,
was and is a most material witness for this deponent, and most essential
to enable this deponent to prepare his defence to these indictments. And
this deponent saith, that at the time when these indictments were
preferred the said Joseph Toplis was at Gibraltar. And this deponent
saith, that on Saturday the 26th day of August last, being the third day
after the said indictments were preferred, and being the first possible
opportunity which this deponent had of communicating with the said
Joseph Toplis, this deponent’s house of business wrote and sent a letter
to him the said Joseph Toplis, requiring him to repair to England
immediately, as well for the purpose of giving his evidence on the trial
of these indictments as in order that the said Joseph Toplis might
enable this deponent to procure such other necessary evidence for the
defence of this deponent, as the knowledge of the said Joseph Toplis in
relation to the transaction out of which these indictments arise might
enable him to obtain. And this deponent, John Lawford, for himself
saith, that in consequence of the absence of the said Joseph Toplis, and
in consequence of this deponent’s belief that the said Joseph Toplis
could not arrive in time to enable this deponent to prepare for the
trial of these indictments, this deponent, under the advice of counsel,
wrote and sent a letter to Sir George Stephen, the attorney for the
prosecution, in the words and figures following:--
THE QUEEN _v._ ZULUETA.
Dear Sir,
Drapers Hall, 11th September, 1843.
You will probably not be surprised to hear that it will require
considerable time to collect and prepare the materials for Mr.
Zulueta’s defence, and you will therefore be pleased to consider this
as a notice of our intention to apply to the Court for a postponement
of the trial. We think it right thus early to inform you of our
intention, that neither you nor your witnesses may be put to
unnecessary expense or inconvenience, and we anticipate no objection
on your part to a proceeding so manifestly reasonable.
We are, dear Sir,
Your very obedient servants,
Sir George Stephen.
(signed)
_Ed. Jno. & H. S. Lawford_.
And this deponent saith, that in reply to such letter, this deponent
received a letter from the said Sir George Stephen, in the words and
figures following:--
THE QUEEN, _v._ ZULUETA.
Collins, 12th September, 1843.
Prince’s Risborough.
My dear Sirs,
Personally I should have no objection to deferring the trial, and so
far as your own convenience is involved in the delay, it would give me
much pleasure to consult it. But this is a case in which I feel
restrained from exercising the least discretion, and must therefore
leave the matter to the decision of the Court. My briefs are
delivered, and, with one exception, my witnesses are subpœnaed; but
that exception is the most expensive, and therefore to save you that
expense, I will not subpœna him until Monday, if you will write me
word that you will consent to the trial being at all events deferred
till Thursday. I put it thus, because I apprehend that the Court will
only accede to your application on terms of your paying the costs of
the day. Have the goodness to address your answer to me here.
Yours very truly,
Messrs. Lawford, Drapers Hall.
_George Stephen_.
And this deponent, Pedro de Zulueta the younger, further saith that
the said Joseph Toplis, in consequence of the aforesaid requisition on
the part of this deponent, came away from Gibraltar forthwith, and
arrived in London on Sunday evening last, the 17th day of September
instant. And this deponent further saith, that it will be absolutely
necessary for the said Joseph Toplis to repair to Liverpool for the
purpose of procuring the attendance of divers persons who are
necessary witnesses on behalf of this deponent, who are not known to
this deponent, and whose names this deponent had not the means of
procuring until he had communicated with the said Joseph Toplis. And
this deponent saith, that by reason of the shortness of the time since
the arrival of the said Joseph Toplis, and the necessity of his
repairing to Liverpool and elsewhere, to seek for and procure the
necessary evidence in support of the defence of this deponent, it will
be impossible for this deponent to be prepared with such evidence in
time for the present session. And this deponent, John Lawford, for
himself saith, that he has been retained as the attorney of the said
defendant, and that he has diligently applied himself to the
preparation of the defendant’s case, and that he is advised by
counsel, and verily believes that it will be absolutely necessary for
this deponent to procure the attendance of the witnesses above
referred to, and of others who he is informed and believes are
resident at Manchester, Liverpool, and Glasgow, and also of some of
the crew of the said ship Augusta. And this deponent saith, that he
has been informed and believes that the defendant, Thomas Jennings,
has been already tried for this offence at Sierra Leone, and acquitted
thereof. And this deponent saith, that he has reason to believe that
it may be necessary to procure the attendance of witnesses from that
settlement as well as from Spain, and other distant places. And this
deponent saith, that by reason of the shortness of the time which has
elapsed since the said indictments were preferred, and by reason of
the entire ignorance of this deponent of the evidence against the
defendant, Pedro de Zulueta the younger, it has been utterly
impossible for this deponent to complete the preparations for the
defence in time for the present sessions. And this deponent further
saith, that from the time of the said bills being found to the present
time this deponent hath been in constant communication with the said
other deponent with a view to his defence, and that no time whatever
has been lost in preparing for such defence; but this deponent saith,
that by the reason of the circumstances hereinbefore stated this
deponent hath been wholly unable to prepare the brief for the defence.
(signed) _Pedro de Zulueta._
_John Lawford._
Sworn in Court, 19th September, 1843.
Mr. Serjeant _Bompas_. Your Lordships will probably wish to hear the
affidavit in answer, before I make any observations upon that which has
just been read.
Mr. Justice _Cresswell_. Have you a copy of it?
Mr. _Payne_. Yes, my Lord.
[_A copy of the affidavit was handed to his Lordship._]
_The affidavit was then read by the Clerk of the Arraigns as follows_:--
In the Central Criminal Court.
The Queen, }
_v._ } FOR FELONY.
Pedro de Zulueta, and others. }
The same, }
_v._ } FOR MISDEMEANOR.
The same. }
Henry Worsley Hill, of Great Rider Street, in the parish of St. James,
Esquire, a Commander in Her Majesty’s Navy, and Sir George Stephen, of
King’s Arms Yard, in the city of London, the solicitor for the
prosecution, severally make oath and say,--And first, the said Henry
Worsley Hill for himself saith, that he is under orders to proceed to
the Gold Coast on the western coast of Africa, to assume the
government thereof with the least possible delay, and that
arrangements are now in progress for this deponent to depart by the
end of this present month. And this deponent also saith, that the
public service will sustain considerable inconvenience by any delay on
the part of this deponent in proceeding to Africa as aforesaid at the
time now appointed, and that he this deponent has no expectation or
hope of obtaining further leave of absence. And this deponent, Sir
George Stephen, for himself saith, that the said Henry Worsley Hill is
a most material witness on behalf of this prosecution, and that
without his evidence this deponent cannot safely proceed to trial; and
this deponent, Sir George Stephen, further saith, that he has perused
a copy of the affidavit of Pedro de Zulueta the younger, and John
Lawford, made in these matters, and that in consequence of the
misdirection of the same, as this deponent believes, he, this
deponent, did not receive a reply to his letter of the 12th of
September, 1843, set out in the said affidavit, and therefore
proceeded in his preparations for trial. And this deponent saith, that
he is ready to proceed to trial at the present session of this Court.
And this deponent further saith, that he has caused another witness in
this matter to come over from Paris, where such witness is permanently
domiciled, and that such last mentioned witness incurred much
inconvenience and expense in so coming, and that as he habitually
resides out of the jurisdiction this deponent has no means of
compelling him to appear again, should the trial of these indictments
be deferred. And this deponent saith, that the evidence of such
last-mentioned witness is most material. And this deponent further
saith, that he has subpœnaed three other witnesses to come to London
from a great distance, one of whom is a sailor, and another of whom is
an officer of rank in Her Majesty’s navy, and that the evidence of all
the said last mentioned witnesses is most material, and that the said
indictments cannot be safely tried in their absence, but that from the
nautical profession of two of them, this deponent believes it to be
very doubtful if he will again be able to compel their attendance. And
this deponent further saith, that he has also subpœnaed another
witness who habitually resides at Seville in Spain, and who is about
to return to Seville, as this deponent is informed and believes as
soon as the trial is over, and this deponent is informed and believes
that the evidence of such last mentioned witness is material. And
deponent saith, that he has no hope of again collecting together so
many important witnesses whose professional avocations necessarily
render their simultaneous presence in this country very uncertain. And
this deponent further saith, that the said defendant, Pedro de Zulueta
the younger, cannot have been taken by surprise by these indictments,
because the said Pedro de Zulueta the younger, volunteered, as this
deponent is informed and believes, to be examined as a witness before
the Select Committee on the West Coast of Africa, and was so examined
on the 22nd and 23rd days of July, 1843, when the nature of the case
upon which this prosecution is founded was stated to the Committee,
and the said Pedro de Zulueta admitted that he had received copies of
the evidence given by Captain Hill on the 29th of June, the 4th of
July, and the 6th of July previously. And this deponent saith, that
the said Pedro de Zulueta the younger, did upon such examination admit
that the house to which he belongs had been charged with criminality,
and with having for a length of time been agents to slave dealers, and
the said Pedro de Zulueta the younger avowed his reason for wishing to
be examined before the Committee to be, that the statements contained
in the said evidence were incorrect. And this deponent lastly saith,
that in another part of such examination, the said Pedro de Zulueta
the younger, in answer to the question, “Is there any other part of
the evidence which has been given that you wish to observe upon?”
after denying all knowledge of a person of the name of Kidd, adds,
“With regard to my partners, I can say the same. I have been making
inquiries about it; my father knew there was such a man, but I did not
know even that, though I have managed all this business.”
(signed)
_H. W. Hill._
_George Stephen._
Mr. Serjeant _Bompas_. My learned friend, Mr. Clarkson, has called upon
me to make some observations upon this affidavit. I should not in
addressing your Lordships at all wish to object to the postponement of
this trial, if it could be considered even by the defendant or his
counsel more advantageous to him that it should be postponed, could I
consent to it without feeling that the trial could not fairly take place
at any other period. I cannot help thinking, while your Lordship is
looking at this affidavit, that it is one such as has been rarely
produced before a Court, in order to found an application for the
postponement of a trial. This indictment was preferred above a month
from this time; that is, four weeks from this time. It is true, as has
been stated, that no inquiry took place before a magistrate, but when
long before that period at which the inquiry could have been instituted,
if such had taken place, this matter had been inquired into before a
Committee of the House of Commons, when Mr. Zulueta appeared before that
Committee, and stated that he had had the management of all the
business, and appeared in order to explain the transaction--
Mr. _Clarkson_. No.
Mr. Serjeant _Bompas_. I will refer to the words of the affidavit.
Mr. _Clarkson_. I beg pardon.
Mr. Serjeant _Bompas_. When it appears that that inquiry had taken place
before a Committee of the House of Commons, this proceeding cannot have
been instituted without ample notice of all that is to be now inquired
into, as far as any party, under the circumstances, charged with felony,
can be supposed to know the nature of the evidence to be brought against
him. And what is the foundation of this application? Not that some
material witness is absent--some material witness whom they have
subpœnaed, and whom they know to be material, and whose attendance they
cannot obtain; that is not the foundation of the application. The ground
of the application is, that a person of the name of Toplis, who was
managing clerk to Mr. Zulueta, was absent at Gibraltar, at the time the
indictment was found. It is not even that he has not arrived: he arrived
on Sunday and is now able to give any evidence that the defendant may
require. It is said, that he is able to make communications in respect
to the evidence of persons, whose names were not known to the defendant
till he arrived, and upon whose absence the application was founded, and
that it is now requisite to send for some witnesses from Liverpool, and
I hardly know where. The affidavit is very singularly sworn; and when my
learned friend says, “from Spain,” and so on, there is no such statement
to be found in it. That which is stated is, that it _may_ be necessary
to send for various witnesses, that it _may_ be necessary to procure
the attendance of witnesses from the settlement of Sierra Leone, as well
as from Spain. My learned friend, in citing it, said, that they were to
obtain witnesses “from Spain.” The affidavit is, that it _may_ be
necessary to have witnesses from Spain--that it _may_ be necessary to
have witnesses from Africa, so that there is no statement whatever that
there is any witness in Spain who would be wanted or can be expected, or
that there is any witness in Africa who will be wanted or who is
expected; there is no such statement at all. The statement is, “That it
will be absolutely necessary for the said Joseph Toplis to repair to
Liverpool for the purpose of procuring the attendance of divers persons,
who are necessary witnesses on behalf of this deponent, who are not
known to this deponent, and whose names this deponent had not the means
of procuring until he had communicated with the said Joseph Toplis.”
Certainly that is a statement of a very extraordinary kind: no doubt it
was put into the affidavit, believing it to be true, but the statement
made by Mr. Zulueta before the Committee of the House of Commons was,
that he had had the management of the whole of the business; and to
suppose that there is a witness in Spain, that there is a witness in
Gibraltar, Mr. Toplis, and that they can make no inquiry as to the names
of the individuals till he comes over, is the most extraordinary
statement ever laid before a Court. As far as this affidavit goes, it
does not appear that they have taken the slightest steps in order to
ascertain by any inquiry as to any witnesses or any transactions; but
Mr. Toplis is to go to Liverpool to hunt out for witnesses. Who they are
does not appear: not any persons who are certain to be witnesses, but
that he is to go to Liverpool to hunt out for witnesses who may be--
Mr. Justice _Cresswell_. And whose names the deponent could not procure
till Mr. Toplis came.
Mr. Serjeant _Bompas_. “And whose names this deponent had not the means
of procuring until he had communicated with the said Joseph Toplis.” He
could hot tell certainly who Joseph Toplis would require till he had
communicated with him; but that he could not have ascertained whether
any witnesses were necessary for his defence would not appear
satisfactorily to your Lordships. It is a case that will require
examination by the Court, in order to do that which would be the object
of the Court, to have the case most fairly and properly inquired into.
Your Lordships see of necessity that the witnesses for the prosecution
are witnesses in a situation not easy to be obtained upon any future
occasion. There is one who is under orders to proceed abroad in order to
take the government of the Gold Coast: there are others who are officers
in the navy.
Mr. Justice _Erskine_. What was the date of the inquiry before the House
of Commons?
Mr. Serjeant _Bompas_. 1842, my Lord.
Mr. Justice _Erskine_. Your affidavit states 1843.
Mr. Serjeant _Bompas_. It is a mistake, my Lord. It should be 1842.
Mr. Justice _Erskine_. Subsequently to that inquiry was any notice
given to the defendant that it would be made the subject of a
prosecution?
Mr. Serjeant _Bompas_. No notice, my Lord, till the bill was found.
Mr. Justice _Erskine_. What was the date of the transaction to which the
indictment refers?
Mr. Serjeant _Bompas_. There was then an appeal pending before the Privy
Council.
Mr. Justice _Erskine_. What was the date of the transaction to which the
indictment refers? I want the date of the occurrence.
Mr. Serjeant _Bompas_. 1840; the end of 1840 and the beginning of 1841.
The capture of the vessel, to which reference was made, was in February,
1841. She left England on the 9th of November, 1840. She was captured:
there was a proceeding in the court abroad; she was condemned, and there
was an appeal before the Privy Council.
Mr. Justice _Cresswell_. The ship sailed from Liverpool?
Mr. Serjeant _Bompas_. Yes, my Lord.
Mr. Justice _Erskine_. With a cargo of some sort. One question will be,
whether it was a cargo adapted to the trade upon the African coast, or
for dealing in slaves.
Mr. Serjeant _Bompas_. No doubt.
Mr. Justice _Erskine_. Was Mr. Toplis the managing clerk at Liverpool?
Mr. Serjeant _Bompas_. Yes, my Lord. It is stated that he was the
managing clerk at Liverpool; but to suppose that the shipment of any
firm at Liverpool to say that they can obtain no evidence of that
shipment except by a managing clerk, is such a statement as can hardly
be credited of any merchant. That is the statement; but they do not
state any circumstances to explain it. That it is necessary to have his
managing clerk to state the names of the parties concerned in the
shipment, it is one of the most extraordinary statements ever made. Upon
this statement your Lordships will have to consider the foundation of
the application, and your Lordships will take into view all the
circumstances of it. This case is to be proved, as it must necessarily
be, by various officers in the navy besides Captain Hill, who is about
to go out as governor of the Gold Coast; by officers in the navy, and
sailors, and foreigners, now here ready to give their testimony.
Now, my Lord, there is one circumstance singularly deficient in this
case, and without which there has never been a case in which the trial
of any cause has been put off. The affidavit does not give the slightest
suggestion when they are likely to be ready to take their trial; so that
it is utterly impossible that the trial can be available, if they are to
come when the witnesses for the prosecution may be scattered over the
whole world: the prosecution may be gone through, but it would be a mere
formal statement. I am willing to give due weight to every argument on
behalf of a person charged with an offence, in order that the charge may
be fairly and properly tried in respect to him; but at the same time
there are duties on behalf of the prosecution. The crime cannot be
inquired into unless there are the means to procure the evidence. If
these witnesses are here, and this party has not taken the means which
he might have done to have the trial now take place, and if he does not
give us the slightest information when it is to be tried; if a person
charged with an offence is to choose the time for trying it, every trial
of this kind would be an utter abortion, because unless the witnesses
for the prosecution are here it is impossible there can be a fair trial.
Now there is not a statement, there is no pretence, why the witnesses
for the defendant could not have been here at the present time. To say
that there were no means of knowing the general nature of the charge,
and knowing the whole substance of the defence, and having the whole
matter fairly considered and put into form before the Court, is what you
cannot believe. Your Lordships cannot believe, that though Mr. Toplis
may have been an important witness, that the general subject of the
charge inquired into was not generally known, and that all the witnesses
for the defence, such witnesses as were thought necessary, must not have
been generally known to the defendant. There may have been a witness
whose name was known only to Mr. Toplis; there may have been one or
more, but it is impossible that the case might not have been got up with
the exception of Mr. Toplis’s evidence, and might have been ready for
trial on this day. But if they have utterly neglected to take any step
till last Sunday, the time as I understand it, they have no right to
come now and ask your Lordships to put off the trial. There is no
statement of any sort or kind of any individual witness necessary,
except those suggested to be at Liverpool. Mr. Toplis could not know the
witnesses abroad more than any other gentleman. Suppose there are
witnesses abroad--have there been any, the slightest step taken to bring
them here? What steps have been taken? He says there are witnesses from
Africa: when are they to be here? when will they come? when is the trial
to take place? There is not a single intimation of the time when they
will be ready to take their trial. It is to be put off till the
witnesses for the prosecution are scattered, and it is impossible to
have the trial. Undoubtedly it is difficult to have a number of
witnesses of this description ready before the Court, and to get their
testimony together. But what do they say? They say that it may be
necessary to get some of the sailors of the Augusta. Was Mr. Toplis
necessary for that? Why have they not taken any step to get the evidence
of those witnesses? They do not appear to have taken any one step to be
prepared for this trial, although then knowing that it was a matter of
difficulty to collect a number of witnesses like these. If it is to be
held that they can at their discretion from time to time put off the
case, it is a mere abortion to attempt to prosecute any person, however
guilty, in the situation of Mr. Zulueta. However important it is for the
defendant--and I would not wish to withhold that from the consideration
of your Lordships--it is equally important for the public good, and as
well worthy of your consideration. It would be with the utmost
difficulty, if there is any probability of doing it at all, that the
witnesses could be got together again. If they had taken every step, and
gone down to inquire at Liverpool, and proceeded as far as they could
and had the means in their power, and yet could not be ready, that would
be some ground for the application; but they do not appear to have taken
any step--they appear to have relied upon putting off the trial,
considering that that would be as good a protection as any witnesses
could possibly give them.
I certainly do feel that there is a ground of opposition to this
application which has never failed when there is no suggestion at all in
the affidavit of what time they expect to be ready for trial. I believe
there has never been a case in which a party has not given the Court
some reason to believe that, if the trial is put off, they will be ready
to try at a given time: on the contrary, here it is put as if it was
quite loose--there _may_ be some witnesses from Spain and Africa, though
they have had a month during which they might have made inquiries.
I have thought it right to submit these observations to your Lordships,
both for the sake of the prosecution and the defendant. If the
prosecution is well founded, it is of the utmost importance that it
should proceed; on the other hand, it is no doubt of importance that the
other side should have an opportunity of bringing the case before the
Court in all the views of which the case is capable: but the case is one
in which your Lordships must see the great inconvenience to the
prosecutors, and the difficulty of getting the witnesses together, and I
trust your Lordships will feel that it is one which ought not to be
adjourned; but if it be adjourned, it must be to some fixed time at
which it must be understood that the case will come on.
Mr. _Payne_. My Lords, I will add but two or three words to what Mr.
Serjeant Bompas has already addressed to your Lordships. I must say that
I never in the course of my experience met with a paragraph in an
affidavit to postpone a trial similar to the first paragraph in this
affidavit; it is merely this, “That it will be absolutely necessary for
Joseph Toplis to repair to Liverpool for the purpose of procuring the
attendance of divers persons who are necessary witnesses on behalf of
this deponent, who are not known to this deponent, and whose names this
deponent had not the means of procuring until he had communicated with
the said Joseph Toplis.” Now it is generally required, in affidavits of
this description, that if you do know the names of the witnesses, and
where they are to come from, that you should state them to the Court,
that the opposite side may be in possession _bonâ fide_ of the nature of
the defence. If Mr. Zulueta had sworn that he did not now know the names
of the witnesses, there would be some reason for not putting in the
names; but he does not say that--he says he did not know them till Mr.
Toplis came. Mr. Toplis came last Sunday night: he could furnish the
names; and if he had put the names of the witnesses and the places they
were to come from in the affidavit, instead of “divers witnesses,” it
might be in the usual form upon which the Court may sometimes postpone a
trial. I say that that expression is not sufficient. I say that the
Court are entitled to have information of the names of the persons
necessary as witnesses, in order to bring the case within the ordinary
rule.
Then, my Lords, the only other part of the affidavit which has not been
noticed by my learned friend, and which may be touched upon on the
opposite side, is the affidavit of the attorney that he has not been
able to prepare the briefs. Mr. Zulueta having stated that he was the
person who managed all this business, he must have possessed information
sufficient to enable the attorney in four weeks to prepare the briefs;
and if he has not furnished that information, it is owing to neglect on
the part of Mr. Zulueta. Their affidavit is loose and defective--ours is
precise. We say we do not think we can get Captain Hill again: he
states, that he is under orders to sail. Under these circumstances, we
must bow to what the Court think right to decide; but we consider that a
case has not been made out to justify the Court in granting this
application.