Mr. Justice _Erskine_. You cannot ask for any further postponement
beyond the next sessions.
Mr. _Clarkson_. I did not think that your Lordships would assume
jurisdiction to postpone it beyond that.
Mr. Justice _Erskine_. We cannot listen to that part of the application
with respect to the witnesses from Spain or Sierra Leone; they are not
stated with sufficient accuracy.
Mr. _Clarkson_. I quite feel that, my Lord; I only wish to say this,
that if my learned friend comes here to ask for the costs of the day, or
for what my learned friend calls terms--
Mr. Justice _Erskine_. That is not necessary.
Mr. _Clarkson_. There is some mistake about it; such a thing was never
heard of here: but there is this observation to be made in answer to the
greater part of what my learned friends have said--for twelve months and
more have these parties who are prosecuting been taking steps, and yet
to this hour nobody knows who they are, no name has been furnished: for
twelve months have they been about that which they now call upon a
respectable merchant of London to meet in a month; and two or three
years have elapsed since the vessel was condemned.
Mr. Justice _Erskine_. It is the duty of the Court to take care that the
ends of justice shall not be defeated by too easily yielding to
applications of this nature; but it is equally the duty of the Court to
take care that a man charged with a felony shall not be brought to his
trial until, he is able to present such an answer as the circumstances
of the case will admit of.
It appears that the offence with which the defendant is charged is
alleged to have been committed in 1840. The grounds for charging Mr.
Zulueta with participation in that offence may have originated in the
examinations before the Committee of the House of Commons in 1842. If it
did then originate, the parties who conduct this prosecution must have
known what the foundation of that accusation was, and if they intended
to charge Mr. Zulueta with that offence, and particularly if they meant
to support it upon the testimony of witnesses who might be absent at a
future time, they ought to have taken steps by which to have secured the
attendance of the defendant, and have taken him before a magistrate, and
examined the witnesses there. But it appears, though this examination
took place in 1842, no steps are taken in the prosecution till August
1843, and that is just upon the eve of the departure of one of the
witnesses, from which circumstance the Crown, it is said, cannot avail
itself of his presence, because he is going upon a public mission to
some other part of the world. This is a prosecution of a singular
character, and the Crown will take care that the ends of justice are not
defeated by their sending away an officer whose testimony is necessary
for the establishment of such a charge. I do not believe there is any
risk of the ends of justice being defeated by his absence.
Then is it fair to call upon the defendant now to present himself to the
Court? It appears that a person of the name of Toplis had the management
of this business at Liverpool, where the circumstances are said to have
originated which form the foundation of this charge; he is abroad, and
from the year 1842 no notice is given.
Mr. Serjeant _Bompas_. The Privy Council did not decide.
Mr. Justice _Cresswell_. We have nothing to do with the Privy Council.
Mr. _Clarkson_. There is no decision by any body. It is no prosecution
by the Crown.
Mr. Justice _Erskine_. I was not saying any thing imputing improper
motives to the prosecutors, but stating facts, that no notice had been
given to the defendant. If, in the year 1842, any notice had been given
to Mr. Zulueta that this prosecution was to be instituted, then if he
had sent Mr. Toplis abroad, he would have no right to avail himself of
that circumstance; but in the absence of any notice of that sort, he had
a right to assume that the evidence before the House of Commons was
satisfactory, and that there was no ground to institute a prosecution,
and he might then fairly send his clerk abroad. Then it appears, that,
having been sent abroad, immediately the prosecution was instituted a
letter was sent to him, in consequence of which he returned to this
country: he only arrived on Sunday last; and it is impossible, from the
state of the facts, that Mr. Zulueta could be in a state to prepare the
requisite instructions for counsel, and get those witnesses necessary to
enable him to proceed with his defence. We therefore think that this
trial should be postponed till the next sessions. We do not yield to the
necessity suggested of sending to Spain or Sierra Leone; there is no
sufficient ground for that laid in the affidavit.
Mr. _Clarkson_. The form will be, that your Lordships will be pleased to
respite the recognizances of Mr. Zulueta and his bail to the next
sessions.
Mr. Justice _Erskine_. Yes.
(_The recognizances were enlarged, and the parties left the Court._)
TRIAL
OF
PEDRO DE ZULUETA, JUN., ESQ.,
AT THE CENTRAL CRIMINAL COURT, OLD BAILEY,
ON FRIDAY, 27th OCTOBER, 1843,
BEFORE
The HONOURABLE Mr. JUSTICE MAULE,
The HONOURABLE Mr. JUSTICE WIGHTMAN,
AND
Mr. COMMISSIONER BULLOCK.
_Copy from Mr. Gurney’s Short-hand Notes of the Proceedings on the
Trial of this Indictment._
THE QUEEN, }
_v._ } INDICTMENT FOR FELONY.
PEDRO DE ZULUETA. }
Mr. _Kelly_. My Lord, with respect to Mr. Zulueta, it is very important
that I should be able to communicate with him from time to time as the
trial proceeds. May I ask of your Lordship some indulgence to permit him
to sit near his counsel?
Mr. Justice _Maule_. What is the charge?
Mr. _Kelly_. The charge under prosecution is felony; the felony being,
the fitting out a ship with certain objects declared by statute to be
illegal, namely, those of slave trading.
Mr. Justice _Maule_. I should wish that Mr. Zulueta, and every one else,
should have the liberty of sitting by his counsel, but that is
impossible. I understand an application was made in the case of a person
of the name of Trotter.
Mr. _Kelly_. It has been done; there are many precedents. I do not ask
it on the ground of any difference of rank or condition, but because the
justice of the case requires it, particularly as he is a foreigner, a
Spaniard, and many of the documents which will have to be referred to in
the course of the proceeding are in the Spanish language, that I should
be enabled to communicate with him. It is not at Mr. Zulueta’s own
instance I make the application, but for my own assistance in the
conduct of the defence.
Mr. Justice _Wightman_. A similar application was made in the case of
Captain Douglas.
Mr. _Kelly_. That was not an application by counsel for the convenience
of counsel, in aid of the justice of the case, but on the ground of his
being an officer in the British army. That, if granted, might establish
a distinction which ought not to be established; but in the case of
Horne Tooke, where it became necessary for the merits of the case that
there should be a constant communication between the counsel and the
prisoner, it was permitted.
Mr. Justice _Wightman_. What was the charge against him?
Mr. _Kelly_. High treason. A case, I may venture to say directly in
point, except that that was a weaker case than this, for this is a case
of a foreigner, a Spaniard; and, as I have observed, most of the
documents to which it will be necessary from time to time to refer, are
in the Spanish language, and it is impossible I can do justice to his
case if I cannot communicate with the prisoner so as to understand their
effect.
Mr. Justice _Maule_. Have you the 9th vol. of Carrington & Payne? The
difficulty stated is, that though the prisoner cannot come to his
friend, his friend may go to him.
[_The 9th vol. of Carrington & Payne’s Reports was handed to his
Lordship._
[_The Witnesses on both sides were directed to leave the Court._
Mr. Justice _Maule_. Have you got the case of the King _v._ Tooke?
Mr. _Kelly_. No, I have not the book here, my Lord; but I remember the
case.
(_The Report was produced._)
Mr. Justice _Maule_. In the Report in the State Trials of the case of
Mr. Horne Tooke, to which you have referred, it appears that he claimed
as a matter of right, the being permitted to sit near his counsel. The
Lord Chief Justice says, “That is an indulgence which I have hardly ever
known given to any person in your situation.” The Lord Chief Justice at
that time was Lord Chief Justice Eyre. Mr. Horne Tooke says, “I am
perfectly aware that it is unusual, but I beg your Lordship to observe
that every thing in the course of these proceedings is likewise unusual.
I beg your Lordship to consider that the proceedings upon the last trial
will fill, as I am well informed by the short-hand writer, 1,600 close
printed octavo pages. That trial lasted nine days; eight days trial, and
one day between. The nature of the indictment is such, that it has been
impossible for me to guess what would come before your Lordship: it has
been equally impossible for me to instruct my counsel; they cannot know
the passages of my life, and from what I have seen on the last trial the
whole passages of my life, and those which are not passages of my life,
but are only imputed to me, will be brought before you: how is it
possible for my counsel to know those particular facts which are only
known to myself? If ever there was a case where indulgence was fit to be
granted, it is this; yet your Lordship will forgive me for saying that I
claim it as my right by law, and do not ask it as an indulgence.” After
more argument to that effect, the Chief Justice says, “Mr. Tooke, you
have been furnished with that which the law considers as the necessary
means to enable you to make your defence; you have had counsel assigned
to you; they have had, or might have had, access to you at all
seasonable hours; that is what the law allows you. You have taught the
Court not to use the word indulgence, and you have pointed out to them
their duty, that they are to give no indulgence. I am apprehensive that
it would be considered as an extraordinary indulgence if the Court were
now to do that which you ask, because that is not done to other
prisoners; it was not done to another prisoner who went immediately
before you, who had the same stake that you have, nor is it done to all
other prisoners who do come to this bar, and therefore the Court are not
permitted without doing injustice to others to grant that which you ask
upon the ground upon which you ask it.” Then he goes on--“But you have
mentioned another circumstance extremely material, and which will, in my
mind, warrant the Court to do that which you think they ought not to do,
to indulge the prisoner. You have stated the condition of your health,
and that in the place in which you stand your health will suffer: the
Court has no desire to put you under any difficulties; they wish that
you should be enabled to make your defence in the best way imaginable;
and if the situation in which you stand is really likely to be
prejudicial to your health, and therefore likely to disable you from
making your defence in the manner you might otherwise make it, I shall
put it to my Lords to consider, whether you may not be indulged with
that which you have now asked.
“Mr. Tooke--The Court will forgive me only for saying, that if, on the
footing of indulgence, the Court shall not think fit to grant what I
ask, I hope I shall not, after that decision, be barred from my argument
upon it as a point of law.” Then the Chief Justice says--“You must state
your whole case upon any matter that arises at once: the proposing it
first in one shape, and then going on to state it in another, is
carrying us on without end; if you mean to argue this as a point of law
to be sure we are ready to hear you.” Mr. Tooke: “I beg your Lordship
not to misunderstand me; I did so mention it at first, and did ask it
not as an indulgence, if your Lordship will be pleased to recollect: I
did mention, that if there were objections I should then argue it in
point of law, thinking that I am well entitled to it by the principles,
by the letter, and by the practice of the law: I did not mean to change
my ground; I beg your Lordship will be pleased to recollect I excluded
the idea of indulgence: I did not mean to take first one ground and then
another, but I thought it possible I might save the time of the Court,
therefore I left it to your Lordship to collect the sense of the Court
even upon the score of health, which your Lordship mentions, to save
time, and not to waste the time. I understood very well that after a
decision I should not be permitted to argue it, and therefore I
mentioned that, but not to change my ground; and therefore if your
Lordship should find upon the score of what you call indulgence, I
suppose in a different view of the word that I am accustomed to take, I
rather understand that your Lordship means you are willing to grant it
me upon the score of my health, in that case I do not desire to waste
the time of the Court; provided it is granted to me, I am very happy
and shall be glad to avoid the argument, if your Lordship will be only
pleased to give me some intimation of your opinion.” The Chief Justice,
after consulting with the other judges, says:--“Mr. Horne Tooke, I have
consulted my Lords the Judges who are present, they feel themselves
extremely disposed to indulge you on the score of your health; they
think that it is a distinction which may authorise them to do that in
your case which is not done in other cases in common; they cannot lay
down a rule for you which they would not lay down for any other man
living, but if your case is distinguishable from the case of others that
does permit them to give you that indulgence which you now ask”--Then
Mr. Tooke says:--“I am very much obliged to your Lordships, and am very
well content to accept it as indulgence or any other thing. Undoubtedly
it is very acceptable to me, and very necessary for my health; I am glad
to save the time of the Court.” On that ground, after having attempted
it on the ground I have stated, he was removed to the inner bar.
Now that case seems, I think, to establish that it is, in the judgment
of the several judges who were here upon that occasion, a thing which
ought not to be done unless under very special circumstances, and we
ought to be on our guard against doing that which might have the
appearance of treating one kind of felony, and one rank or class of
persons, in a different way from another; or of intimating that, because
a person is somewhat of a superior rank, he is to be treated in a
different manner; and we are anxious not to do it in the way of favour
or on any such ground as that, and we feel that we cannot grant this on
the ground on which you put it. This seems to my learned brother and
myself to be the same in fact as Mr. Tooke’s, though not quite so
strong--a desire in the party to communicate with his counsel, which
will exist in every case. It was not thought sufficient in that case: he
was indulged only on the ground that his health was such that it would
suffer from his remaining in the ordinary place: and here no such cause
is alleged.
Mr. _Kelly_. It is my duty to acquiesce in the decision of your
Lordships. I beg to say I did not put this on any distinction of rank.
Mr. Justice _Maule_. No; that we understand perfectly, and the Court is
disposed not so to put it. I said, that lest there should be a feeling,
though it was not put so, that there might be a distinction drawn
between this and any other case on that ground. What other difference is
there between Mr. Zulueta, charged with felony in slave trading, and any
other person coming to that dock, charged with any felony of any other
character, requiring wealth and capital to carry it on?
Mr. _Kelly_. I did not desire, in the least, to press it on that ground;
on the contrary, I disclaimed it: I mentioned that which was the
principal ground--that the documents are all in a foreign language; and
that which I submitted to your Lordship was entirely my own suggestion,
and not Mr. Zulueta’s: I acquiesced at once, as I ought, in your
Lordship’s decision.
Mr. Justice _Maule_. The Court is so constructed that you can approach
Mr. Zulueta, though he cannot approach you.
(_The Defendant took his place within the Bar, and was arraigned on
the Indictment for Felony._)
_Clerk of Arraigns._ How say you, are you Guilty, or Not Guilty?
_Defendant._ I am Not Guilty.
_Clerk of Arraigns._ If you object to any of the gentlemen who are
called, you may make the objection before they are sworn; and it is my
duty to inform you that you have a right to be tried, being a foreigner,
either by a jury of half foreigners and half English, or by a jury
entirely English.
_Defendant._ I have no wish; I am as safe in the hands of Englishmen as
of any body.
_The following Jurymen were called and sworn:--_
1. John Foote.
2. William Jackson.
3. Robert Nagle.
4. Charles William Knight.
5. Michael Jones.
6. Richard Jessop.
7. William Hawksworth.
8. James Gillard.
9. Edward Findlay.
10. James Parker.
11. John Godfrey.
12. James Gordon.
(_The Jury were charged with the Prisoner in the usual form._)
Mr. Serjeant _Bompas_. Before I make the address which it will be
necessary to make to the jury, will your Lordship allow me to apply on
behalf of a witness, a gentleman who took the notes in short-hand of
what took place before the Committee of the House of Commons? I, of
course, do it with the consent of the counsel on the other side; it is,
that he may be now examined, which will remove all question as to the
propriety of the proceeding; that he may be now sworn and state that
this blue book contains a correct account of what took place: that will,
of course, be subject to such objections as may be made by my learned
friend.
Mr. _Kelly_. My Lord, I understand that Mr. Gurney’s presence is
required, for the purpose of justice in Wales, under an order from the
Home Office. I perfectly agree, that it shall be taken upon his evidence
that this blue book contains a true account of what took place before
the Committee, subject to any objections as to the admissibility of the
evidence, the matter standing as if Mr. Gurney had given his evidence in
its proper order.
Mr. Joseph _Gurney_, sworn. Examined by Mr. Serjeant _Bompas_.
_Q._ Did you attend as short-hand writer before the Committee of the
House of Commons, at which these proceedings were taken in
short-hand?--_A._ I did.
_Q._ Is this book printed from your short-hand notes?--_A._ Mr.
Zulueta’s evidence. I took the evidence of Mr. Zulueta; not the whole.
_Q._ Did you take the evidence of others?--_A._ Yes; of some others.
Mr. Serjeant _Bompas_. On behalf of the prosecution we admit that the
other parts are taken from the short-hand notes: we shall want the
evidence of Mr. Zulueta.
May it please your Lordship,
Gentlemen of the Jury,--It is my duty to call your attention to a case
of very considerable moment. I am quite sure you will feel that all
cases, in which the liberty and welfare of any person standing as a
prisoner at the bar before you are concerned, are matters of
considerable importance; but I cannot but think that this is one which
will deserve your very particular attention. The case is, to you and to
most persons, one of a novel description as a matter of trial. It is
very rarely indeed, that offences under the Act to which your attention
will be directed can be brought before a jury as the subject of their
investigation. It necessarily will include a variety of facts, some of
them being in some degree complicated; and it requires, therefore, that
careful discrimination which I am quite sure you will be quite ready to
give. To the prisoner, of course, it is of paramount importance,
standing here before you upon his trial on such a charge as that which
has been presented against Mr. Zulueta, and calls for the utmost
possible attention. I do not consider that I should keep from you one
thing which has been mentioned already in your hearing, that the
prisoner at the bar is a person of wealth, and rank, and station. He is
a merchant of the city of London. I am quite sure that that cannot make
any difference in your consideration of the case, unless by increasing
that interest which necessarily is excited by the respectability in life
of the person who is standing before you on his trial, exciting you to
greater vigilance to see that perfect justice is done as between him and
the law. I am quite sure that you will see, that if he be innocent, you
will, as you would in respect of every individual who stands before you
upon his trial, take care that he shall not be convicted; but if, on the
other hand, the evidence, when it is laid before you, shall satisfy your
minds that he is guilty, it can in no manner or degree lessen the guilt
of a person against whom such facts shall be produced, that he is in a
station which should teach him better to obey the law of his country. So
far as any such topic can be urged, on the one side or the other, to
excite your utmost anxiety and most careful vigilance to ascertain the
truth, I, on behalf of the prosecution, should feel that it is of great
importance it should be exercised, because the truth, and that alone,
ought to be, and I trust in all cases is, the object desired by the
public prosecutor.
Gentlemen, the kind of charge is one that will require your very
particular attention. The prisoner stands charged, “that he did
illegally and feloniously man, navigate, equip, dispatch, use, and
employ,” that is, that he did employ--that is the particular term to
which I would direct your attention--“which in and by a certain Act of
Parliament made and passed in the 5th year of the reign of his late
Majesty King George the Fourth, intituled ‘An Act to amend and
consolidate the Laws relating to the Abolition of the Slave Trade,’ was
and is declared unlawful, that is, to deal and trade in slaves.” The
other counts vary the charge in some degree, but in nothing that I
believe will be material for your consideration, except that in the four
latter counts he is charged with shipping goods on board the same vessel
for the purpose of accomplishing the same object.
Gentlemen, it is now happily a matter of history of some considerable
period back, that there was a contest in this kingdom by those who were
anxious to put an end to what they rightly considered one of the
greatest crimes staining human nature. On the 25th of March, in the year
1807, was accomplished that victory, I may say for humanity, by which,
as far as the laws of this country could accomplish it, this kingdom was
separated from that course of crime, which probably is almost the
greatest blot that rests upon human nature; I mean, that that Act was
passed which is called “the Act for the Abolition of the Slave Trade.”
Gentlemen, you are aware that before that time persons of wealth--for
persons of wealth alone could engage in such an occupation, and
unfortunately that which was called the slave trade was a source of
great wealth--before that time no doubt persons of wealth engaged in
that trade. That Act, as far as regarded any public Act, of course
extinguished them; but from time to time, from that time to this present
moment, though not of course engaged in public or in the immediate
visible commerce which was the subject of condemnation by that Act, it
has been more or less continued, and the course of the law has been from
time to time by more and more stringent penalties as far as possible to
put an end to it as respects this country; and it is impossible that you
should not be aware that one great object of this kingdom in all its
negotiations with all foreign countries is, as far as possible, to
create one great combination among all the civilized part of mankind,
uniting in extinguishing that which is a crime on the part of all
engaged in it; and therefore it has become above all other things the
duty of this Government, as far as relates to any individuals living
within this kingdom, to the utmost possible degree to put an end to any
connection with it of any sort or kind, and to prevent any persons who
continue in this kingdom, and are subject to its law, from being in any
way whatever connected with that which is considered a crime of the
greatest magnitude; and it is with that view that the Act of Parliament
which you have heard mentioned in the indictment, the Act of the 5th of
George the Fourth, chap. 113, was passed, in order as far as possible to
extinguish all connection of any individuals in this kingdom with the
slave trade, and by a severe penalty to put an end to any such
transactions. Indeed, when we consider the penalty, it is such as shows
that the Legislature intended to render the punishment most severe: it
is a penalty which subjects every person connected with that trade to
transportation for fourteen years. But every single individual who,
through any connection with that trade, is torn from his friends in
Africa, and sent in the miserable way in which they must necessarily, if
they survive the horrors of the voyage, be removed from that country to
an interminable life of slavery--every individual suffers double and
treble the penalty which is inflicted upon the criminal engaged in the
trade; and therefore I feel satisfied that we shall not consider that
penalty too severe, provided only the offence is fully proved: and the
severity of the punishment ought to excite, I admit, to the utmost
degree, your watchfulness to see that it is fairly and satisfactorily
brought home to any man, because I take it any person on behalf of the
prosecution who calls the attention of a jury to the enormity of any
crime, does it under the most anxious caution that, in proportion as the
crime is great, so the jury ought to extend their utmost care and
attention to see that it is fairly and satisfactorily made out.
Gentlemen, you are aware that in cases of this kind the transactions
must necessarily extend over some considerable time. The distance of the
place to which the transactions ultimately relate, the difficulty of
obtaining from Africa the various documents necessary to be produced to
ascertain the guilt or innocence of the party, necessarily occasions the
lapse of some considerable time; and in the present case it will be
necessary for me to refer to transactions that extend over several
years. In this particular case a trial took place in respect of the
vessel in Africa, and afterwards in England, which necessarily occupied
some considerable time; and no doubt the necessity of obtaining the
requisite documents occasioned the delay for a still further lengthened
period.
Gentlemen, the charge made against the prisoner is, that he employed a
vessel in order to accomplish, that is for the purpose of accomplishing,
the dealing in slaves, and that he sent goods for the purpose of
accomplishing that object, namely, the trading in slaves; and the nature
of the charge, which I will mention generally before I enter into the
particulars of the evidence, is this, that the prisoner at the bar
employed a vessel--and you will of course hear the manner and mode in
which that was done, and observations will occur to you on the detail of
the facts--that he sent goods in that vessel to supply persons who are
merchants in slaves, individuals holding slaves in Africa, to enable
them to keep the slaves while they were there, and to provide the means
for bartering those slaves, so as to enable them to transmit them to
Cuba, or the Havannah, as the case may be. Of course it need not be said
for one moment that openly and publicly in this kingdom no man could do
that, which to the eyes of all would appear to be dealing in slaves; it
would be the object of attention of every man: and it is necessary I
should detail the evidence I have, in order to show first, that this
vessel named the Augusta, and the goods which were shipped on board that
vessel were in fact for the purpose of supplying a factory situated at
the Gallinas, a port on the Coast of Africa, and that the prisoner at
the bar knowingly and willingly was the person who had employed the
vessel, knowing that it was employed for that purpose. Of course the
persons who were employed, the persons more deeply interested, were
persons residing abroad; but we charge (and before you convict the
prisoner you must be satisfied of that fact) that he knew the object,
and lent himself to that object, and shipped the goods with that view.
Gentlemen, to give you an account of the progress of this vessel, I must
direct your attention so far back as the year 1839. In the year 1839 a
vessel, the Augusta as she has been since called, was then trading under
the name of the Gollupchick, under Russian colours, fully equipped for
slave trading. At that time she was captured by a gentleman, who will be
called as a witness before you, Captain Hill, and taken into Sierra
Leone as a vessel trading in slaves, of which there was no doubt. I have
stated to you that she was sailing under Russian colours. At that time
the captain on board was named Bernardos, one of the three persons named
in this indictment, though not present. He was the captain, and the crew
were entirely Spaniards. The Russians, you probably know, have not
settlements requiring the dealing in slaves. She was taken to Sierra
Leone to be condemned, it being believed that the Russian colours were
employed merely as a pretence. The court before which she was to be
tried was a mixed commission of Spanish and British. That court
considering that they had no right to try the case of a vessel trading
under Russian colours, she was not then condemned; the case was not
there inquired into. It is sufficient to say that she was brought over
from Sierra Leone to England with her crew, and with a number of the
British crew who had taken her in there. Bernardos being the captain of
her, he and his own Spanish crew came to England in that vessel. She was
then perfectly equipped as a slave trader. Upon her coming to England
the Russian consul claimed her as a Russian vessel. She was then sold at
Portsmouth. She was sold to a person of the name of Emanuel, who
purchased her for 600_l._, paying 30_l._ as the auction duty; the
expense therefore would be 630_l._ Upon her being sold, part of the
balance of the purchase-money was paid to Bernardos, which had been
expended on account of the vessel.
When this vessel was brought to this port, a letter was written by Mr.
Zulueta: the contents of that letter I have no means of knowing; we can
do no more than give evidence of the writing of that letter. I shall
show a letter was written; it will be for the prisoner at the bar or not
to produce that letter. She was sold, as I have mentioned, to Mr.
Emanuel; and upon that we have a letter written by the prisoner at the
bar, Mr. Zulueta, to Thomas Jennings, in respect of the purchase of that
vessel, and I will call your attention to that letter. The letter is
dated London, the 20th of August, 1840. It is a letter that was found in
the vessel when she was subsequently captured by Captain Hill. The
letter is in these terms, dated “London, 20th August, 1840,” directed to
“Thomas Jennings”--Thomas Jennings is one of the three persons indicted:
he was the person who was captain of the vessel, and was captured in the
vessel subsequently--“Sir, in reply to your letter of yesterday, we have
to say that we cannot exceed 500_l._ for the vessel in question, such
as described in your letter, namely, that excepting the sails the other
differences are trifling from the inventory. If you cannot therefore
succeed at those limits, we must give up the purchase, and you will
please act accordingly. Zulueta and Company.--Captain Jennings,
Portsmouth.” The purport of this letter is, that Zulueta and Company
would purchase the vessel if they could get her for 500_l._, but that
they would give no more than 500_l._ for the vessel. Gentlemen, in fact
I shall be able to prove to you that this being dated the 20th of
August, 1840, very shortly after that, I believe on the 29th of August,
Messrs. Zulueta paid for that vessel 650_l._; and the way in which they
paid that for it was this--they gave a check to Bernardos, the captain
of her when she was captured under the name of the Golupchick, whom I
shall prove to have received the money at the bank in London, and to
have gone down to Portsmouth, and together with Jennings to have gone to
Emanuel, and paid this money to Emanuel for the purchase of the vessel.
There will, I believe, be no doubt whatever that that money came from
the prisoner at the bar, Mr. Zulueta; for I shall be able to show that
that very same money received by Bernardos, the very same notes
amounting to 650_l._ were paid to Emanuel at Portsmouth. There will be
therefore no doubt that the money was paid by the prisoner at the bar.
Gentlemen, the vessel remained for some time at Portsmouth; she remained
there, I believe, till the beginning of October. There will be no doubt
what was her object. Immediately after her purchase--almost immediately
after--I shall be able to show you, by its having been found in the
vessel, that there was a letter written by Bernardos--
Mr. _Kelly_. Surely you are not going to read letters found in the
vessel, without connecting the defendant with the vessel or with the
letters.
Mr. Serjeant _Bompas_. If you object to the letter, I will state the
ground on which I conceive it is evidence.
Mr. _Kelly_. I object to no letter written by Mr. Zulueta or any of his
clerks; but letters found months after, when all his connection with the
vessel had ceased, surely you cannot read.
Mr. Serjeant _Bompas_. I shall show that this letter was on board the
vessel at Portsmouth on the 25th of September, 1840--a letter written by
the man who received the money for the purchase of her to the captain,
who was to conduct her to Africa: of course there are two facts here
which it will be necessary I should prove; first, that her destination
was the Gallinas; and secondly, that her object was to assist in the
dealing in slaves: and it shall be my object to show, or I shall fail
and you will give your verdict for the prisoner, that this was with the
knowledge of Mr. Zulueta.
Mr. _Kelly_. Show that by proper evidence, but do not read letters which
are not evidence.
Mr. Serjeant _Bompas_. I have a right to read this letter; you may
object, if you please.
Mr. _Kelly_. I do object, because it is impossible with effect to object
to it hereafter. Here is a gentleman on his trial for felony: I do not
object to the reading of any letters from his house of business, though
they may not have been written by himself; I do not object to any letter
being read which was written by Mr. Zulueta himself, or any letter which
my learned friend, Mr. Serjeant Bompas, can undertake to say Mr. Zulueta
had seen or known; but letters written by third persons, over whom he
had no manner of control--letters written by a person included in this
indictment, but not on his trial, and which I have no means of
explaining--cannot be evidence. Mr. Zulueta has no means of explaining
this letter, the writer of which was unknown to him: and I submit that
it would be more fair, and more according to the ordinary course of
business in this country, if my learned friend were to arrive at the
facts, which he says he can prove, by that which is properly evidence,
and to leave the reading this letter to a separate discussion on any
argument which may then be raised as to its reception in evidence.
Mr. Serjeant _Bompas_. I do not object to my learned friend interposing
in objection to the reference to this letter, because I am willing to
admit that it is desirable to exclude every effect which might be
produced by the reading of a document which may be objectionable; and
while it is my duty to open that which I feel to be evidence against the
prisoner, I will not open any thing as to which I feel a substantial
doubt. The letter I am now proposing to put in is a letter written by
Mr. Bernardos, the man who received the money after that first letter I
have mentioned, and after all which occurred with respect to the
purchase, and it has reference to certain objects in respect of his
destination, and giving him--not instructions in the sense of ordering
him--but directions and instructions as to the course of that voyage. My
object is to show, that at the time the vessel was at Portsmouth, the
destination was fixed, and he received direction in that respect from a
person whom I have so connected with Mr. Zulueta as to show that that
man Jennings was the purchaser with the money of Zulueta of this very
vessel, Jennings being the captain, and ultimately one of the owners;
and I shall show directions from Mr. Zulueta. I cannot conceive how that
can be objected to.
Mr. _Kelly_. I undertake to say not a shadow of doubt shall remain on
your Lordships’ minds that this is not evidence when the facts are
before the Court. To be opening the contents of the letter, under such
circumstances, I submit is not justified.
Mr. Justice _Maule_. Brother Bompas, I do not think this is so clearly
evidence that it should be opened to the Court. It is very difficult to
decide whether a document is evidence or not till the facts are brought
before us.
Mr. Serjeant _Bompas_. Gentlemen, I am quite willing to be wholly under
the control of the learned judges in the conduct of this case. I would
not myself, as I think I ought not, to open that which is really
substantially doubtful, and if I had felt this so, I would not have
mentioned it at all.
Mr. _Kelly_. I am quite sure that my learned friend would not have done
so if he had felt that it was open to objection. I am quite sure that my
learned friend from the first desired that nothing should be stated,
which in his opinion could not be brought home to the defendant himself.
Mr. Serjeant _Bompas_. After the observation of Mr. Kelly, I will say no
more with respect to this. I have to prove two things; first, what was
the object of this vessel. I have to prove what it was intended to do.
It may or may not in many instances be shown that there was the hand of
Mr. Zulueta in what was done; but if I show to your satisfaction that he
was aware of the circumstances, and was one of the parties, it is not
necessary that I should show that his was the hand by which every
individual act was done: therefore, I beg to keep these two things quite
distinct. I shall show what was the object and destination of the
vessel; and undoubtedly I shall show you, or I fail in this case, that
he was conscious of the object and intention of the employment of the
vessel.
Gentlemen, upon the vessel, at the time she was at Portsmouth and when
she was sold, there were on board her part of the equipments which had
previously existed of the Gollupchick. In order in one way to equip a
vessel directly for slave trading--to put her in a situation in which
she could take slaves in--it is necessary that there should be the means
of very considerable supplies of water. There are commonly leagers. It
is not necessary there should be leagers, unless when the occasion
requires the carrying an extraordinary supply of water; where that is
required, it is necessary there should be the means of carrying such a
quantity of water in the vessel; and there were on board this vessel
leagers--that is, large vessels containing many hundred gallons of
water, ten or twelve or fourteen feet in diameter. At Portsmouth several
of the leagers then on board were taken to pieces, and the staves and
heads left on board the vessel. You are aware that it would be quite
impossible for such a vessel, with leagers, or any fittings up of that
kind, to leave this kingdom in order to go to a place on the coast of
Africa, where it is known the slave trade is carried on; it would be
quite obvious what their object was; and these vessels were accordingly
taken to pieces, and the materials left in the vessel.
It was observed, also, that the vessel afforded the means of having
slave decks placed. Where a vessel leaves a place, such as Spain, or
some place where she may leave with impunity with all her equipments
complete, they have slave decks in the vessel--that is, decks with about
two-and-thirty inches from one deck to another, in which the slaves lie.
These they were not able to set up under these circumstances; but there
are decks placed that as many as possible may be carried. These decks
could not be existing in this country: they could not be allowed to go
from this country. There are, however, places, and some screw-bolts
where they can be placed, and by which they could be fastened: they
might be speedily put in on the coast of Africa, so as to fit the vessel
for carrying slaves there: of course it could not be done here, but the
screw-bolts might be put in, and the slave decks fixed in an incredibly
short space of time; and thus she might be immediately prepared for
receiving the slaves when she was in Africa.
I shall also, I believe, show that a person was applied to at Portsmouth
to enter to go to the coast of Africa. When she was there, letters were
received by Jennings; and I shall prove certain circumstances by a
witness, who I shall call before you, who was present when the vessel
was taken, a letter found on board her, which was written from London:
and I may state that at once, as my learned friend has admitted that
whatever was written by the house would be evidence against the prisoner
at the bar; and I should state that he himself said before the Committee
of the House of Commons on his examination, that he himself had the
management of the whole of this business. I will read the exact
words--“I have managed all this business;” therefore there can be no
doubt that what came from the house he is responsible for. The letter to
which I will call your attention was received on the 26th of September,
1840.
Mr. _Kelly_. My learned friend will pardon me for a moment. I have said
I shall not think it right, in a case of this sort, to interrupt my
learned friend in any attempt he may make to read documents which
proceeded from the house, but I must not therefore be taken to agree to
their admissibility.
Mr. Justice _Maule_. You will not consider the admissibility of the
evidence as established until it is offered in evidence.
Mr. Serjeant _Bompas_. Of course every thing I read, you will consider
subject to proof. If I have been misled in any fact, you will remove it
from your minds. Not that I would state any fact, if I did not believe
it to be founded in truth. This is dated--“London, 26th September, 1840.
Captain Thomas Jennings, Portsmouth. Dear Sir,--We have received your
letter of yesterday, whereby we observe that the sum we have remitted
you will not be sufficient to cover all the expenses to clear the ship.
We much regret you have omitted mentioning the sum you require, which
prevents our remitting you the same by this very post, thus causing a
new delay in leaving that port, so contrary to our wishes. You will
therefore write to us to-morrow, that we may receive your reply on
Monday morning, informing us of the amount necessary to finish paying
all your accounts and expenses, to remit you the same by Monday’s night
post, in order that you may be able to sail for Liverpool on Tuesday or
Wednesday at the furthest. You must not omit stating the amount
required; and waiting your reply, we remain, very truly, dear sir, your
obedient servants.” Then the signature which was to that letter is cut
out. Then it says, “According to our Liverpool house notice”--the
prisoner, Mr. Zulueta, is connected with a house at Cadiz, as well as a
house in London--“According to our Liverpool house notice you will go
there to the Salthouse Dock,” superscribed “Captain Thomas Jennings,
Broad Street, Portsmouth.” That letter was regularly received in the
course of business, as to which business Mr. Zulueta says, “I managed
it.” I believe I shall show you the handwriting of a part of it; but the
signature was cut out. I believe I shall show it was cut out previous to
its being found.
This being the letter, Mr. Zulueta having furnished the money for the
purpose for which it was demanded, and having desired that Captain
Jennings will send up an account of all the money expended, and that he
should go to the Salthouse Dock at Liverpool; accordingly he went to the
Salthouse Dock at Liverpool. It is impossible Mr. Zulueta’s name should
be mentioned as the owner of a vessel used for such a purpose. It is
quite clear, that if he knew it, his name would not be used as the owner
of the vessel, and therefore this vessel was purchased in the name of
Thomas Jennings. How far he was really the owner you will be able
probably to form an opinion from the remainder of the evidence with
which I shall furnish you. When it was purchased, no papers of any kind
were handed over. She was a condemned vessel. She was bought without any
register, and taken as a Russian vessel, and there being no evidence of
ownership, she was purchased as such.
Gentlemen, she went to Liverpool; and when she went to Liverpool, I
shall have to call your attention particularly to what took place at
Liverpool. At Liverpool a charter-party was entered into, to which I
will call your attention:--“Memorandum of the charter-party. London,
19th October, 1840. It is this day mutually agreed between Mr. Thomas
Jennings, master and owner of the good ship or vessel called the
Augusta, of the burthen of tons, or thereabouts, now lying at the
port of Liverpool, and Messrs. Pedro Martinez and Co., of Havannah,
merchants.” Pedro Martinez and Co. were merchants, having a house at
Cadiz. It will appear from Mr. Zulueta’s own statement that they had a
house also at the Havannah, that they were known slave dealers.
According to Mr. Zulueta’s own evidence, he believed at the time they
were slave dealers.
Mr. _Kelly_. If you say that, I beg you to read the evidence. He never
did say that.
Mr. Serjeant _Bompas_. “Do you know the nature of the trade of Pedro
Martinez at the Gallinas?--I know from general report that Don Pedro
Martinez himself is supposed to deal in slaves, and I believe it is so.”
That is at page 682, question 10398.
Mr. _Clarkson_. That is an examination in 1842.
Mr. _Kelly_. These are statements made in 1842. Have the kindness to
read the answer to 10413, in the next page.
Mr. Serjeant _Bompas_. Every word he said in evidence will be read; but
an interference in that form and that manner is not proper, and I shall
not submit to it.
Mr. _Kelly_. I merely meant to correct what I supposed to be an
inadvertent mistake.
Mr. Serjeant _Bompas_. My learned friend is quite right to interfere, if
he thinks I am under a mistake. My object is to call your attention to
what he said at the time; every word will be read to you, and you will
form your own opinion upon it. “Is he known at the Havannah as a dealer
in slaves?--I do not know, but I believe so; I do not know why it should
not be known at the Havannah, if it is known in other parts.” My learned
friend will make his own observation upon that, I shall read that as
evidence before you; you will consider whether it is sufficient proof
that he knew that Martinez & Co. dealt in slaves.
Gentlemen, I was reading to you the charter-party of the ship: it
proceeds in these words--“That the said ship being tight, staunch, and
strong, and every way fitted for the voyage, shall, with all convenient
speed, load from the factors of Messrs. Pedro Martinez & Co., a cargo of
legal goods, which the said merchants bind themselves to ship, not
exceeding what she can reasonably stow and carry over and above her
tackle, apparel, provisions, and furniture; and being so loaded, shall
therewith proceed to Gallinas, on the coast of Africa, or so near
thereunto as she may safely get, and deliver the same; after which she
may be sent on any legal voyages between the West Indies, England,
Africa, or the United States, according to the directions of the
charterers’ agents (restraint of princes and rulers, the act of God, the
Queen’s enemies, fire, and all and every other dangers and accidents of
the seas, rivers, and navigation of whatever nature and kind soever,
during the said voyage, always excepted). The freight to be paid on
unloading and right delivery of the cargo, at the rate of 100_l._
sterling per calendar month that the ship may be so employed, commencing
with this present month, all port charges and pilotages being paid by
the charterers, and days on demurrage over and above the said
laying days at pounds per day. Penalty for non-performance
of this agreement 500_l._ The necessary cash for ship’s disbursements to
be furnished to the captain free of commission. The charterers to be at
liberty of closing this engagement at the end of any voyage performed
under it on settling the freight due to the vessel. The captain being
indebted to the charterers in certain sums as per acknowledgment
elsewhere, the freights earned by the vessel to be held as general lien
for such sum, and in any settlement for such freight, the said advances
to be deducted from the vessel’s earnings.--THOMAS JENNINGS.”
Then, here is the addition to the charter-party:--“I, Thomas Jennings,
captain and owner of the ship ‘Augusta,’ of this port, hereby I declare,
I have received from Messrs. Pedro Martinez & Co., of Havannah, through
Messrs. Zulueta &, Co., of this city, 1,100_l._ sterling for the
disbursements of the said ship, her fitting out and provisions, which I
engage myself to repay with the earnings of the same, according to the
charter-party entered this day with the said gentlemen, and under the
following conditions:--1st. All the earnings of the ship will be
accounted for and applied to the said Pedro Martinez & Co., they
furnishing the necessary cash for all expenses, repairs, provisions, and
crew’s wages, including 15_l._ per month for my salary as captain. 2nd.
At any time, when the said gentlemen may think proper to close the
charter-party, I will make out the account, and deliver to them, or to
their representatives, a proper bill of sale for the said ship and all
her appurtenances, to cover the balance due to them in the said account.
3rd. That I am in no other way responsible for the settlement of the
above-mentioned debt, but with the said ship and her earnings; and that
the said Messrs. Pedro Martinez & Co. will take on themselves the
insurance and risk on the vessel.--THOMAS JENNINGS.”
Now, Gentlemen, it will be most material for you to consider the effect
of this charter-party, and what is called the loan. It is nominally
chartered by Thomas Jennings, as the captain of the vessel, to Pedro
Martinez & Co. through Zulueta & Co.; and Zulueta & Co. are the persons
employing that vessel: there can be no doubt of that. Now what is the
effect of these two documents? Is it that Jennings is the real party who
engages to pay? No such thing. “I am in no other way responsible for the
settlement of the above-mentioned debt, but with the said ship and her
earnings; and that the said Messrs. Pedro Martinez & Co. will take on
themselves the insurance and risk on the vessel.” So that he is not in
the slightest degree indebted to them: he is not bound to pay, but it is
only that he is indebted to them on the vessel. Can he say I will pay
you the money and keep the vessel? No; whenever Messrs. Martinez & Co.
choose, the vessel is to be made over to them. Can he make over the
vessel and apply the money to his own use? No; he has only 15_l._ a
month, and can be required to make over the vessel whenever they please.
But that would be the ordinary transaction in peace time; the money
would be advanced to him; the vessel would be the security for it at any
one moment at which Martinez & Co., or their representatives--that is,
Messrs. Zulueta & Co.--might call upon Jennings to deliver up the vessel
to them. He is always accountable to them for the earnings of the
vessel, and he is in no respect personally responsible. The question you
will have to decide is this: Is this a method by which it shall appear
that Thomas Jennings is the owner of the vessel, so that no other person
shall have a right to say that he is the owner? He is to appear to be
so; but the other parties have a right to say, “Give the vessel up to
us;” he borrowing, but having nothing but the vessel; he being to
receive his wages of 15_l._ a month as captain. It will be undoubtedly a
very material consideration whether this is matter of concealment; a
mode in which Jennings is to be made the apparent and not the real
owner, or whether he is the real _bonâ fide_, owner. It is clear he
would be in no respect responsible under this arrangement entered into
at Liverpool. You will have, in connexion with the evidence, to examine
the statement made by Mr. Zulueta. The letters, which will be read,
undoubtedly treat Zulueta & Co. as purchasers on behalf of Martinez &
Co.; and the charter-party is made by them as agents for Martinez & Co.,
by which the factors are to ship these goods for Africa as agents for
Martinez & Co.
Gentlemen, the vessel went to Liverpool; she was there loaded in the
ordinary course, according to the account given by Mr. Zulueta in his
evidence. He is asked, “You did not imagine that in being the instrument
of sending lawful goods to any part of Africa, you were doing any thing
which required concealment?--Nothing at all of the kind; and the proof
of that is, that in the bills of entry in Liverpool any body could see
our names as consignees of the vessel, and see entries made in our names
of every thing.” No doubt, gentlemen, according to that charter-party,
if it was a _bonâ fide_ charter-party, shippers might ship goods on
board the vessel in their name; every thing would be in their name; and
the papers on board that vessel might be in the name of Zulueta, and not
in the name of Captain Jennings: but if Captain Jennings was the owner
of the vessel, and Messrs. Zulueta the factors of Martinez, he would
have only to receive the goods shipped on board that vessel by Messrs.
Zulueta. It is clear a cargo was put on board that vessel, and if she
was going on a legal voyage, there is no reason why every thing should
not be in the name of Messrs. Zulueta, and why the ship’s papers should
not be in their names as the owners of this vessel. But all the ship’s
papers were made out in the name of Thomas Jennings; the bill of lading
is made out as shipped by Thomas Jennings; and none of the shipments are
made by these factors, who, according to the charter-party, were to ship
the whole. No doubt it will be for you to consider how far that is a
wilful act of concealment or not.
Gentlemen, this vessel was going to the Gallinas. The Gallinas is a port
in Africa, about 200 miles from Sierra Leone. It is necessary you should
know the nature of that port. It will be impossible but that persons
engaged in trade should know the nature of that port. It is a
settlement, or rather a native State, that consisted of a harbour and a
river, and it is called the Gallinas. The sole trade carried on there is
the slave trade. It consisted of a few, I think there were five, of what
are called barracoons. It is hardly necessary I should state that a
barracoon is a place in which slaves are kept; that slave traders by
attacking a village, or other means, take possession of the people, who
are taken down to warehouses erected for their use--barracoons as they
call them--places where they are kept until an opportunity arises,
whereby they may be shipped off either to the Havannah or to Cuba: the
two great places to which slaves are sent from this place are the
Havannah and Cuba. The place consists of five barracoons, as they are
called; five warehouses, where the slaves are kept. It is not a trading
place in any other way. Slaves are purchased by the barter of cotton
goods or other goods from England, or by doubloons, which are raised by
drawing bills on persons in England. There is no other trade but the
mere slave trade. In the barracoons and places, these unfortunate people
are kept until an opportunity arises for selling them, to be disposed of
either in Cuba or the Havannah. One was kept by a person of the name of
Rolo, another by a person named Ximines, another by Alvarez, another by
a person of the name of Buron, and another by a person of the name of
François. This vessel and cargo therefore were dispatched to a place
which was wholly a slave trade establishment. There is no other trade
whatever. I believe there was not at that time, nor had been long
before. Since the slave trade has been stopped there, it is somewhat a
different thing; but at that time it was a place used entirely for the
slave trade, and the goods which were sent there were used for barter,
and the doubloons for which the bills were drawn were employed in the
purchase of slaves. The three consignees of this vessel were the three
persons I have first mentioned, three persons having barracoons in the
Gallinas. It is possible that a name of a fourth may appear in the
evidence. You will remember that the fourth is named Buron. The vessel
therefore went out from England with a cargo consigned to these three
persons, Rolo, Ximines, and Alvarez.
Gentlemen, when the vessel got some little distance from England, I
believe a hundred miles from Cork, she encountered a considerable gale:
upon that the captain determined to go to Cadiz; the wind was
unfavourable for Cadiz: she was about a hundred miles from Cork, and
there was a perfect facility of going to Cork or to Falmouth, where they
might have arrived in the course of a day. It would take 18 or 19 days
to go to Cadiz, I believe 19; but the captain determined to go to Cadiz,
the crew resisted this, and they came to the determination that some of
the crew should be discharged at Cadiz, Mr. Zulueta having a house at
Cadiz, and Mr. Martinez too; and it was at Cadiz she received the
dispatches which were found on board, as to the consignees, as to what
was to be done with the shipment on board, and what was the object of
the shippers. Part of the goods appear to have been landed there by the
firm of Zulueta & Co., and Mr. Zulueta received an award for the injury
which had occurred, the injury the cargo had sustained in that gale. I
believe the principal part of the tobacco was landed. It will appear by
the bill of lading the shipment of goods was by these three persons. The
tobacco was landed by Mr. Zulueta of the house in Cadiz, and the house
in London received compensation for the loss upon that, they having
shipped the same in London.
Gentlemen, the vessel afterwards sailed from Cadiz. She arrived, I
believe, about the 6th of December, and sailed in the early part of
January. She was captured on the 7th of February, 1841, by Captain Hill,
when she came near the coast of Africa. It happened that Captain Hill,
whose duty it was to capture those vessels, either Spanish or English,
which had dealings in slaves, met with her, and he was not a little
surprised at seeing so soon a vessel he had captured as a slaver, under
the name of the Gollupchik, come under English colours with a new name.
He boarded her, and saw Jennings on board. She was not then, of course,
to use the technical term, equipped as a slave trader; she having sailed
from England with goods on board, it was impossible she should be. He
asked to whom she was consigned: Jennings refused to tell.
Mr. _Kelly_. Are we to have the conversations with Jennings, the master,
long after the felony is supposed to have been committed by Mr. Zulueta
in England? Is the conversation with every person, in every quarter of
the world, to be given in evidence?
Mr. Serjeant _Bompas_. I am not going into any conversation between the
master and the captors, merely the simple fact. Captain Hill being about
to seize the vessel, the dispatches of the vessel were at length brought
out with great reluctance; the captain, however, delivered up the
letters, and told Captain Hill those were the letters to the consignees.
They are letters with certain directions.
Mr. _Kelly_. My Lord, I must object again to what I conceive is most
irregular on the part of my learned friend, who is proposing to give in
evidence that which took place between Captain Hill and Jennings. My
learned friend has opened a very complicated case, and now my learned
friend attempts to describe the contents of papers given by the house of
Martinez & Co. to the captain, some months after the vessel had sailed
from England. Mr. Zulueta, at the bar, is charged with a felony in
having equipped and employed this vessel for the purposes of the slave
trade. My learned friend is opening the case against him on the charge
of felony, and he is supposed to be affected by instructions given by
other persons months afterwards--persons in Cadiz, over whom he had no
control--instructions which he never saw until they were alluded to in
certain proceedings in which he had no concern whatever. My learned
friend is stating a part of the contents, and stating them most
incorrectly. I apprehend Mr. Zulueta is undoubtedly liable for the
consequences of any act he has done, any act he has sanctioned, any
thing done by his firm with his knowledge; but that he cannot have used
as evidence against him papers delivered months after the supposed
commission of the crime, and long after he could have interposed--months
after the vessel left England. My learned friend knows he has no
evidence affecting the defendant touching her afterwards; but he is
opening the contents of papers given by a foreign merchant months
afterwards.
Mr. Justice _Wightman_. I did not understand Brother Bompas to state
that the prisoner was aware of the contents of those papers.
Mr. _Kelly_. My learned friend does not pretend now to state that, but
he describes them as containing instructions given to the captain; they
were not instructions given to the captain.
Mr. Justice _Wightman_. He does not state that they were.
Mr. Serjeant _Bompas_. It is important that the objection should be
made, if at all, now. The evidence no doubt is most important, and I
thought it was possible that my learned friend might object. It is fair
to the understanding of the case that the objection should be stated,
and I am obliged to my learned friend for taking the objection now, if
it was to be taken. I wanted to call his attention to it, not wishing to
allude to the contents of those documents unless they are admissible in
evidence; but it will be quite impossible to call the attention of the
jury to these facts, unless I know whether the evidence is admissible.
Mr. Justice _Maule_. How can we decide that until we know what they are?
Mr. Serjeant _Bompas_. My object is to offer them as evidence in the
case, and therefore to open them as evidence.
Mr. _Kelly_. My learned friend is stating what I did not understand him
to state before, and therefore your Lordship will allow me to place this
point of the case on its proper basis. When he is opening this part of
the case, in order that if there is no doubt on the admissibility of the
evidence it may be at once taken, I do at once make the objection; and I
think your Lordship will pardon my saying a few words more on that which
my learned friend considered rather an interruption, or a protestation,
than an objection. My learned friend charges Mr. Pedro de Zulueta with
having committed a felony, that felony having been committed in England
in the months of July, August, and September; that is, that Mr. Zulueta
equipped and dispatched a vessel, and shipped goods on board that
vessel, for the purposes of the slave trade. That vessel left England, I
think, in the month of October--