Mr. _Kelly_. I object to that: I do not want all the payments made by
this witness; we are upon the question if you can give secondary
evidence of the cheque.
Mr. Serjeant _Bompas_. I am going to see on whose account it was paid.
Mr. _Kelly_. I object to any evidence of bankers paying a sum of money
on account of the firm, or on account of any other person, unless the
document is in the handwriting of the prisoner at the bar, or the
payment proved to have been made to his orders. What is to prevent, by
the order of the partner in Spain, of which he never heard, this person
being charged with felony?
Mr. Serjeant _Bompas_. I submit that the evidence is sufficient; here is
an express statement in the printed evidence.
Mr. Justice _Maule_. It is not in evidence yet.
Mr. _Kelly_. I consider it in evidence; my learned friend may refer to
any part of that book; I consider that that is in evidence now.
Mr. Justice _Maule_. Very well.
Mr. Serjeant _Bompas_. He first states he managed all the business. In
answer to Question 10432 he was speaking about the transactions with
Africa, he was examined about the Augusta, and Mr. Kidd, he says, “My
father knew there was such a man upon the coast, but I did not know even
that, though I have managed all this business.”
Mr. _Kelly_. That relates to a business upon which another insinuation
was made, and which has no more to do with it than this.
Mr. Serjeant _Bompas_. My learned friend assumes that this has no
relation to it; he is quite mistaken in that. The question is, what is
the meaning of the term, “this business,” it is not the business of the
man of the name of Kidd; he says he never heard of him; but the question
is, whether it is not the business of the Augusta and the trade with
Africa; he says he manages all that business. I submit, if he takes upon
himself to say he managed “all this business”--
Mr. Justice _Maule_. What are the words?
Mr. Serjeant _Bompas_. “All this business.”
Mr. Justice _Maule_. I think the fair inference is, that the Mr.
Zulueta, who came before the Committee, was the person who knew best
about the matter suggested against them relating to the Augusta, and he
came to speak to the matter of the Augusta, either solely or among other
things; if so, “this business” must mean that.
Mr. _Kelly_. No, not if your Lordship looks at the context; he comes
forward voluntarily, understanding there were charges against his house,
not because he knew more about it than any body else, for he knew the
least about it, but because he spoke English best. There is nothing
from which you can infer in this evidence that Pedro Zulueta knew all
that had passed through the house.
Mr. Justice _Maule_. It is not very satisfactory to select a man who can
speak English, but did not know much about the matter.
Mr. _Kelly_. I mention that in answer to your Lordship’s observation,
“that he knew most about the matter.”
Mr. Justice _Maule_. The Committee must have taken that to be the fact.
Mr. _Kelly_. If your Lordship thinks it must fairly be supposed to refer
to that matter, then the question is whether that makes it evidence; I
will call your Lordship’s attention to what he says: The _Chairman_ asks
him, “Is there any other part of the evidence which has been given that
you wish to observe upon?--It is asked here in question 5086, ‘Who was
he?’ The answer is, ‘The name is mentioned in the Parliamentary Papers
as being connected with the purchase of a slave vessel, Mr. Kidd; and it
is mentioned in connexion with that of Mr. Zulueta, of London.’” There
was some former transaction of the purchase of a slave vessel, in which
Mr. Kidd was a party. He goes on to say, “Now, as to Mr. Kidd, the very
first thing I ever knew or ever heard of his name, was to see it here. I
never heard of his name at all. I never had a letter from him or through
him, or knew any thing of the man whatever. That is with regard to
myself. 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 upon the
coast, but I did not know even that, though I have managed all this
business.” What business can that relate to, but the business in which
Mr. Kidd’s name was mentioned, which was the purchase of a slave vessel?
Mr. Justice _Maule_. I should think not: his father knew there was such
a man upon the coast; “I did not know that, although I had that
management of the business” which would lead me to know all the men on
the coast, that is to say, all the coast business; that is the way I
understand it, I confess.
Mr. _Kelly_. I cannot conceive that it is so; but it is for your
Lordships to decide. Supposing that it is, I do not know how that makes
this entry in the book evidence. Your Lordships will look at the next
question: He is asked, “You have no connexion with Mr. Kidd in any
way?--No; nor any knowledge of him.” Then he goes on with the same
business; he was never alluding to the principal business, that of the
Augusta.
Mr. Serjeant _Talfourd_. You will find he gives there an account of the
whole transaction. Mr. _Forster_ says, “You advanced the money to
Captain Jennings for the purchase of a vessel; Jennings transferring the
vessel to you as a security for the amount so advanced?--That is just
the description of operation, which is a very general one in business.”
Mr. Serjeant _Bompas_ (_to_ Mr. _Thomas_.) Whose handwriting is
that?--The handwriting of a Mr. Daniel, in our office.
Mr. _Kelly_. I submit that this relates to the business of Mr. Kidd.
Mr. Justice _Maule_. It struck me otherwise; but at the same time you
seem so extremely satisfied with your own view, and my view is just as
it struck me, that you stagger me by your positiveness.
Mr. _Kelly_. I should not like your Lordship or the Jury to be misled as
to the amount of interference by this gentleman in the business. Suppose
it is so, that he had the management of the fitting out of the Augusta,
how does that make evidence of an entry in the banker’s book of the
payment of a sum of money? He cannot say to whom he paid it, or on whose
account? How can that make it evidence upon a charge of felony? I do not
know the nature of it, but I am quite sure it is quite consistent with
Pedro Zulueta, having done all he has admitted to have done before the
Committee, that he never heard of that payment.
Mr. Justice _Maule_. In whose handwriting is the signature to the
charter-party?
Mr. _Kelly_. It is the signature of the prisoner that has been read.
Mr. Justice _Maule_. I do not think you are in a situation to put in
this evidence. This witness paid across the counter to somebody, upon
something which they produced, a sum of money, and the thing then
produced you call for.
Mr. Serjeant _Bompas_. We call for the document upon which it was paid,
and we are going to take another step to show that the money so paid was
applied to this vessel. Your Lordship has got the statement that they
advanced the money for the purchase of the vessel.
Mr. _Kelly_. There is no doubt that the house of Zulueta & Co., on
account of Martinez & Co., paid for this ship. My learned friend says he
calls for that document. He calls for a document he has not shown to be
in existence. Let him prove the existence of the cheque; and then the
question arises, whether secondary evidence is admissible.
Mr. Serjeant _Bompas_. Can you say whether it was paid through a cheque
or draft?--No, it is impossible.
Mr. Justice _Maule_. He says it was paid through an acceptance upon
their house, or upon a cheque upon their house; that it was something
purporting to come from Zulueta & Co., but that does not bind the
prisoner; that cheque so purporting to come from Zulueta & Co. was sent
back to Zulueta &, Co., and notice was given for the production of it?
Mr. _Kelly_. Yes, my Lord, notice has been given to produce the cheque
or draft; that does not mean a bill of exchange accepted at Cadiz, where
they had a house, or at Liverpool, where they have another house.
Mr. Serjeant _Bompas_. Cheque or draft would apply to a bill.
Mr. Justice _Maule_. If it refers sufficiently to the contents of it.
Mr. _Kelly_. Read the words of the notice, and we will see.
Mr. Serjeant _Talfourd_. “And also a certain draft or cheque,” &c.
(_Reading the terms of the notice._)
Mr. _Kelly_. I make two objections to this evidence; the first is, that
no such cheque is proved to be in existence; and secondly, if there
were, such cheque is not proved to have been in the handwriting of the
prisoner at the bar, and therefore it is not admissible. I ought to
add, as the notice to produce has been referred to, and is now upon the
table, that the notice calls upon the prisoner, Mr. Zulueta, to produce
all the books, documents, and accounts of his house, between certain
dates, at all relating to the transaction in question; and all letters
written, and copies of letters written by this house, or any body for
them in relation to this matter. My Lord, every document there mentioned
is here in Court, and in two minutes ready to be put upon the table.
Mr. Serjeant _Bompas_. To try you, I call for the paper referred to in
the charter-party.
Mr. _Kelly_. The greater part are in Spanish, and the prisoner at the
bar can distinguish them, but the clerks who kept these books, the
corresponding clerk, and the clerk in whose handwriting they are, are
ready to speak to any thing my learned friend may call for from the
beginning to the end.
Mr. Serjeant _Bompas_. I call for that letter referred to in the
charter-party.
Mr. _Kelly_. Put the documents upon the table.
Mr. Serjeant _Bompas_. You need not go through that performance. Will
you produce the receipt mentioned in the charter-party?
Mr. _Kelly_. I have said I have it not.
Mr. Serjeant _Bompas_. There is a letter mentioned here: “We have
received your letter of yesterday.” Will you produce that? Captain
Jenning’s letter of the 25th of September, 1840?
Mr. _Kelly_. Certainly.
Mr. Serjeant _Talford_. Mr. Jenning’s letter is in English.
Mr. _Kelly_. Yes; I know that.
_The same was produced and read, as follows_:--
“Portsmouth, 25th September, 1840, Messrs. Zulueta & Co.:-- Gentlemen,
I am in the receipt of your favour of the 24th instant, and beg leave
to acknowledge the favour you have conferred on the house of Messrs.
Grant, Gillan, and Medley, and have acknowledged the same to the
parties mentioned; at the same time beg leave to mention this port is
different from many ports in England for men, and we have to give the
month’s advance under favour in consequence of the many vessels of war
wanting men, so that I have agreed with the men as I consider you will
deem necessary; and from the heavy charges of the different tradesmen,
and all other expenses I formerly mentioned, I do not consider the sum
you have remitted sufficient to clear this port: under such
circumstances, you will please to favour me with your advice by return
of post, who I shall draw upon for the remaining balance, and hoping
my accounts, when seen, may meet your approbation, I remain, your
obedient humble servant,