I believe you come from the Post Office?--Yes.

You have been accustomed to see the post-mark on letters?--I have.

Have the goodness to look at that, and tell me whether that is the

post-mark, and the date of it?--It is.

What is the date?--The 23rd of September, 1840, as far as I can judge.

Mr. _Kelly_. This is the letter about which we have already had a

discussion?

Mr. Serjeant _Bompas_. I am not aware of any discussion about it at

present.

Mr. _Kelly_. Are you about to offer it in evidence?

Mr. Serjeant _Bompas_. Yes.

Mr. _Kelly_. Then I object to it; I do not understand the principle on

which it is offered. This is a letter which Captain Hill proves to be in

the writing of Bernardos, written to Captain Jennings, and dated

September, 1840. That is sought to be given in evidence against the

defendant. There is no proof that he ever saw or heard of the letter in

the whole course of his life.

Mr. Serjeant _Bompas_. Your Lordship will find the letter No. 18.

Mr. _Kelly_. It is a letter, I understand, which is printed at page 35,

in the Appendix to the Appeal Case, at the top of that page.

Mr. Serjeant _Bompas_. It is a letter written by one of the parties to

the other of the parties who were engaged in paying the money for this

vessel, which was received from the prisoner at the bar. It is a letter

from Bernardos, your Lordship will see, describing the voyage.

Mr. _Kelly_. You had better not speak of the contents of the letter; it

is before their Lordships, and for the purpose of deciding the point of

law, my Lord may look at the letter. I cannot help complaining of the

course taken, which is not correct or usual. My learned friend takes the

opportunity of stating, in the hearing of the Jury, something of the

contents of that letter, which is before your Lordships, and of which

your Lordships may possess yourselves while we are discussing whether

the contents of it are to be stated in Court at all. If your Lordships

hold it admissible, it will then be read; but, for the present, you may

read it yourselves, and hear the argument upon it.

Mr. Serjeant _Bompas_. I cannot argue, without referring to the contents

in some degree. I am quite sure that I am in your Lordships’ judgment,

that in referring to the contents of the letters, I have abstained from

using one single expression which could have an effect until your

Lordships decide. I have not made use of a word which can justify the

slightest possible degree of observation of my learned friend’s in the

fair argument on the admissibility of the letters; I have gone only as

far as was necessary for the purpose. As far as I have referred to their

contents, I am quite sure your Lordships will be of opinion I have

governed myself by the most careful attention not to say any thing which

was unnecessary. It is important to ascertain where the vessel was to

go. This is the person who paid the notes received from Mr. Zulueta for

this vessel. I ask your Lordship whether that is not evidence of his

being an agent of Zulueta in respect of this vessel. He writes to him

upon his arrival in this vessel; he is employed to pay for this vessel,

to purchase it; there is a communication from the one to the other of

these two persons, so employed to purchase this vessel, in respect of

the vessel and the trade--I say no further than that--and also giving

instructions. I ask your Lordship if it is not open to me to prove where

the vessel was to go to, having shown the communications which took

place between the parties in respect of her going. This contains the

actual instructions. The same rule exists as to evidence in criminal

proceedings as applies to evidence in civil cases. The question has been

before the House of Lords as to instructions given by one party to the

other, and the judgment was set aside on that very point of

instructions.

Mr. Justice _Maule_. I do not know what case you refer to.

Mr. Serjeant _Bompas_. There was one case as to Chambers’s bankruptcy,

where the directions were considered a fact, and as such given in

evidence in order to show that there were directions given. We know that

it is necessary to have a certain quantity of water provided for the men

going on that trade. This letter does not refer to supply of water, and

therefore I use that simply as an illustration. Can it be said, that if

a person employed to engage in a certain trade, employed by the person

upon his trial to purchase a certain vessel, going to a certain place

for a certain object, gives instructions in respect of what is necessary

for the trade carried on at that place, that is not matter to be given

in evidence on the trial? The object of that is to ascertain for what

purpose she went there. I apprehend I have clearly connected these two

persons and the prisoner. Supposing I could give this distinct evidence,

that the prisoner knew of it, would not that be admissible? Do I not

give evidence for the Jury to determine whether he was cognizant of

these transactions? Is not that part of the case for the Jury to

determine, whether by his conduct it is evident he did know what took

place? I apprehend this is a part of the proceedings between two

persons, both of whom have been employed by the prisoner; they proceed

onwards with the knowledge of the prisoner in the prosecution of that

voyage, which was ultimately accomplished, or would have been

accomplished, if she had not been taken. This is one part of that

proceeding, and it is for the Jury to say whether there was, on the part

of the prisoner, a guilty knowledge of the proceeding or not. If there

was not, there will be an acquittal of the prisoner. If there was that

which amounts to a guilty knowledge of what took place, I apprehend it

is impossible to exclude this which is evidence, and which may be

important evidence, in showing that there was a guilty knowledge. This

letter is found passing from one to the other; is proved to be posted

while she was at Portsmouth in preparing for the voyage, and is found

afterwards on board. But we prove the period of its transmission by the

post-mark.

Mr. Justice _Maule_. I don’t think this is evidence. I am the more

satisfied in excluding it, that I do not think it of the smallest

importance; it does not prove any thing which is very material but what

is already in proof.

Mr. Serjeant _Bompas_. That, my Lord, is the case on the part of the

Crown.

Mr. _Kelly_. My learned friend having stated that this is his case, I

feel it my duty to take your Lordship’s opinion whether there is any

evidence to go to the Jury in support of this charge; and I will, in

doing so, call your Lordship’s attention to what the charge is on the

indictment, and in respect of the Act of Parliament, to which my learned

friend has hardly alluded. The indictment charges the defendant with

having employed (there are several words used, but I take the more

general words), with having employed a vessel to accomplish a certain

object, that object being trading and dealing in slaves. That the

defendant was a party to the purchase of a vessel there is no doubt. The

great question here is, whether there is any evidence at all,

notwithstanding the great length of time this case has occupied, whether

there is any evidence at all that the defendant, Mr. Pedro de Zulueta,

had any intention of employing that vessel, or those goods, for the

purpose of the vessel or the goods being used in the dealing in slaves.

Now, where is the evidence? I reject, as your Lordship will, all that

was mere matter of observation on the part of my learned friend. The

evidence against Mr. Pedro de Zulueta consists in this--that he wrote a

letter on, I think, the 20th of August, by which he authorised Jennings

to give a certain sum of money for the vessel; the vessel was afterwards

purchased, and the defendant puts the name of his firm to the

charter-party of that vessel--the charter-party, by which Jennings

having become the purchaser of the vessel, charters the vessel to the

foreign house of Martinez & Co., for which the house of Zulueta & Co.

were agents--Martinez & Co. thus become the charterers of the vessel,

Jennings, on certain terms contained in that instrument, being the

captain of the vessel.

It is said, also, that the defendant dispatched the vessel; that he

shipped goods on board the vessel. My Lord, with regard to the whole of

the rest of the case, as to his using, employing, equipping, or

dispatching; as to his shipping the goods by the vessel; as to his

interfering in any way in respect of the vessel or the cargo, that

depends entirely upon his own evidence before the Committee of the House

of Commons. That is evidence against him; that evidence I need not go

into at length; that evidence, taken together and stated shortly, is

this:--I am a member of the firm of Zulueta & Co.; that firm, including

myself, did purchase this vessel, did cause it to be dispatched in the

way stated, did cause certain goods to be shipped on board the vessel.

We acted as agents for Martinez & Co., the goods being consigned to

correspondents of Martinez and Co., named by Martinez & Co.; but as to

the purpose for which that was done, as to the vessel itself, or any

goods on board that vessel, being used for the purposes of the slave

trade, I declare, though I admit that my house did dispatch the vessel,

and did ship the goods, we had no idea or any suspicion that the vessel

or goods could be intended for any illegal purpose whatever. That is the

whole of the evidence, with this addition, that three gentlemen have

been called, whose public duties have for some years past led them to

the coast of Africa, and among other places to the Gallinas, who have

stated that which has come within their personal observation--the place

itself, and the dealings carried on at the place, having been familiar

to them for a considerable time past. They state that they knew very

well that it was a slave trading place. There is no evidence that the

defendant, the prisoner at the bar, ever was at the Gallinas in his

life; on the contrary, the evidence is the other way. There is no

evidence that the defendant ever gave any instructions or authority,

directly or indirectly, to Jennings, or to any other person, to use the

vessel or to use the goods for the purposes of the slave trade, or for

any other illegal purpose. There is no evidence that any communication

was ever made by the house of Martinez & Co., or any other house, to the

defendant, Pedro de Zulueta, that the vessel or goods were to be

employed in the slave trade, or that any such illegal object was in

contemplation.

Now, my Lord, what is the effect of the statute? The statute declares

that slave trading, of a particular description, shall be illegal. The

statute proclaims it a felony in any British subject to employ or equip

a vessel, or to ship goods, for the purposes of the slave trade. That

it may be taken on the admission of the prisoner himself, by his

evidence before the Committee of the House of Commons, though there is

no other evidence, that he did employ the vessel, and that he was

concerned in the shipping of goods, I admit; but where is the evidence

that he did those acts, or that he participated in those acts, for the

purpose of those goods, or that ship, being employed in the slave trade?

If this be so, if your Lordships hold that it is evidence to go to the

Jury, that because a mercantile house in this city executes the order of

a foreign correspondent, and sends out a ship with certain goods, which

may be lawfully shipped, but which it is possible may be improperly

employed, that therefore it is to be taken that they were to be

unlawfully employed, and that therefore there is evidence to go to the

Jury that he dispatched the vessel, and shipped the goods, in order that

they might be unlawfully employed, I do not see how any mercantile house

in this kingdom can trade in ships or goods, or execute any order, at

the instance of any house in any part of the world, where either from

that house personally dealing in the slave trade, or having

communication with parts of the coast of Africa, it is possible that the

ship, or the goods, may be applied to the unlawful purposes of the slave

trade. If, without any proof of the party having used the ship, or the

goods, for the purposes of the slave trade, without any document under

his hand alluding to the slave trade, where all that is done is

perfectly lawful, because it is possible that other persons, to whom he

may have consigned his goods, may apply the ship, or the commodities, to

the uses and purposes of the slave trade, that is to be held to be a

case for the Jury that they were so intended, I do not know how any

trade can be carried on. I submit, therefore, that here there is no

evidence to go to the Jury of Mr. Pedro de Zulueta, the prisoner at the

bar, having used this ship, or having shipped these goods, for the

purpose of their being employed for the slave trade. I can easily

conceive that a case might have been made out. The prosecutors seem to

have been aware that communications had taken place between Messrs.

Martinez & Co. and the house of Zulueta & Co., and they have called for

the production of letters. I can easily imagine that a case might have

been made out, inasmuch as Mr. Zulueta has stated that he purchased this

ship by order of Martinez. But the prosecutor is bound to make out that

case: he is not to raise a suspicion, and then to call upon the prisoner

to clear himself from it: he must prove his case. He might call for any

letters that had taken place between Martinez and the prisoner at the

bar; for any communications between the prisoner at the bar and the

captain of the vessel. If they had been produced, he might have

established from them that something had been proved that established

this offence. Then there might have been a case to go to the Jury; but

the case here is one in which the prosecutor alleges, that Pedro de

Zulueta himself employed the vessel, and shipped these goods, for the

purpose of their being employed in the slave trade. The question is, the

slave trade being prohibited by law, whether he is concerned in the

intent and design of their being so to be used; whether there is any

evidence that he knew of the slave, trade being carried on there;

whether there is any evidence that he knew that these goods would be

employed, or might be employed, for the purposes of the slave trade. I

submit there is no case calling upon him, I will not say for an answer,

but even for observation; I submit that it would be extremely unsafe

where the prosecutor has the means of proving if there has been a guilty

knowledge on the part of the defendant, if it is the fact that the

intent of the proceeding is something illegal, and where the prosecutor

might prove it by direct evidence, that he should content himself with

proving that a ship was dispatched which might be used for the purposes

of this trade, leaving it to the defendant to prove the negative of

that, and to give in evidence all the documents which may have taken

place, merely proving that it is possible that the ship the defendant

dispatched might be so employed. I submit to your Lordships that is a

dangerous doctrine, that it is contrary to the practice of the Court,

and that there is no case in which the charge would not apply equally to

every merchant in the kingdom who exported goods which might, after they

left this country, be applied to an illegal purpose.

(_The learned Judges consulted together._)

Mr. Justice _Maule_. Mr. Kelly, you may go to the Jury.

Mr. _Kelly_. My Lord, after what has fallen from your Lordships, of

course I shall not hesitate to address the Jury upon the evidence which

has been offered by my learned friend. There are one or two points,

however, to which I would call your Lordship’s attention, and bring the

terms of the statute under the attention of the Court; which, I

apprehend, will be fatal to the prosecution, without troubling the Jury

with observations which may extend to a considerable length of time, and

which I shall feel it my duty to bring before the Court.

Mr. Justice _Maule_. Do you mean something in arrest of judgment?

Mr. _Kelly_. No, my Lord; on the effect of the evidence.

Mr. Justice _Maule_. I cannot think it is at all right that the question

whether the case should go to the Jury should be twice put.

Mr. _Kelly_. No, my Lord. I say, supposing even that the charge is well

made, that it is not an offence within the Act of Parliament.

Mr. Justice _Maule_. It comes to the same thing; I cannot see what you

mean to say to the Court, except that the indictment is bad. That you

state you do not propose to say?

Mr. _Kelly_. It is not that which I first contended.

Mr. Justice _Maule_. You did not propose to say that, and you now

propose to say that the indictment is bad?

Mr. _Kelly_. My Lord, there is one point on which I do contend that the

indictment is bad, though that is not the point to which I would call

your Lordship’s attention. I was first about to submit to your Lordship,

that the offence charged upon the evidence is not a felony within the

Act of Parliament.

Mr. Justice _Maule_. That it does not support the indictment?

Mr. _Kelly_. Yes.

Mr. Justice _Maule_. It appears to me that that is exactly what you have

been saying before.

Mr. _Kelly_. No, my Lord, the point is altogether and totally different.

Mr. Justice _Maule_. It may be a different reason, but it is the same

point.

Mr. _Kelly_. I am sure your Lordship will see that it is different, when

I come to explain.

Mr. Justice _Maule_. It is going for a nonsuit?

Mr. _Kelly_. Yes, it is in effect, my Lord; but if the Court will

indulge me with a few moments of time, they will see that the Court is

under a mistake, and that the point is most grave and proper for the

consideration of the Court, and totally apart and distinct from that I

have already submitted.

Mr. Justice _Maule_. All I want is that you should explain. Sometimes,

when gentlemen are moving for a new trial, they are asked whether they

move for a new trial on the point of misdirection, or the verdict being

against evidence; I do not say it is imperative they should state

distinctly, sometimes a gentleman might not feel prepared to state that?

Mr. _Kelly_. I will answer your Lordship’s question in as few words as I

can. The point I make is this:--The charge is, that of fitting out a

vessel to accomplish the object of trading in slaves, or slave trading

at Gallinas, which I submit was not an illegal object: that supposing

for a moment the facts were to convince the Jury that the defendant had

fitted out this vessel, in order that Pedro Martinez & Co., or any other

persons, might trade in slaves at Gallinas, that is not a felony within

this Act of Parliament.

Mr. Justice _Maule_. Do you mean to say, that proof would not support

the indictment; or, that supporting the indictment, it would not amount

to felony? One of those things it must be.

Mr. _Kelly_. I say both: it would not support the indictment, and it

would not amount to felony.

Mr. Justice _Maule_. Inasmuch as you say it would not support the

indictment, that is going on the very ground you have gone on before,

only giving another reason. If you do not see that--if you tell me you

do not think it--I will hear you.

Mr. _Kelly_. I beg to state with the most perfect sincerity, I do not

feel that.

Mr. Justice _Maule_. You mean to insist that the indictment is not

supported, having previously insisted that the indictment was not

supported?

Mr. _Kelly_. Yes; but on a totally different ground.

Mr. Justice _Maule_. I do not say you are not entitled, not on the same

ground to say that the indictment is not supported, but you are not

entitled to say that the indictment is not supported twice over; that

you cannot put forward one set of reasons, and when they are overruled,

put forward another set of reasons; for if you could, in case they were

overruled, you might then put a third.

Mr. _Kelly_. If I had had the slightest idea that it would be deemed

inconvenient that I should submit one point for your Lordship’s

consideration, and ask for a decision on one before I proceeded to the

other, I should have submitted both; I have only to ask your Lordship’s

pardon for the course I have taken.

Mr. Justice _Maule_. I am quite sure that you must see that where there

are several grounds for making that motion, it is desirable that they

should be all stated in the outset, for otherwise they might split into

separate motions. The universal course is, that all the grounds should

be stated, and the unity of the object preserved; and the Court yields

with apparent reluctance to a different course. The object you now have

is to induce the Court to rule that there is no evidence to go to the

Jury. That, you have before submitted; you say you have a different

reason, but that different reason does not raise a ground for the Court

hearing the application repeated. I only regret you did not take the

course which the Court thinks the best. If you insist upon it, I shall

feel bound for the convenience of the Court, not to allow an old and

very able counsel to do that which would not be fair in ordinary cases;

but if you say you have made some slip or omission I will hear you.

Mr. _Kelly_. That is really so. If your Lordship will pardon me one

moment, I will take what course your Lordship thinks most convenient for

practice.

Mr. Justice _Maule_. You omitted something?

Mr. _Kelly_. Yes, my Lord; I will state what is quite unconnected with

the objection I have taken. This indictment charges the prisoner with

having equipped a vessel, and shipped goods, in order to accomplish an

object, that object being the exercising of the slave trade, and it is

framed upon the Act of Parliament of the 5th of George IV, chapter 113.

Now, my Lord, by the 2nd section of that Act of Parliament, slave

trading by certain persons, and under certain circumstances, is declared

to be unlawful. By the 10th section of the Act, it is enacted that if

any person shall among others, equip a vessel, or ship goods, in order

to accomplish any of the objects theretofore declared to be unlawful, he

shall be guilty of a felony. That is the felony charged in this

indictment, namely, that the prisoner at the bar equipped a vessel, and

shipped goods, in order to accomplish one of the objects declared to be

unlawful, namely, that of trading in slaves. Now, the point is this: the

charge, supposing it substantiated by evidence, is this--that the

prisoner at the bar equipped this vessel, and shipped these goods, in

order that they might be used in the slave trade, in order to accomplish

the object of trading in slaves at Gallinas, in Africa. The Gallinas is

not a British settlement, and is not a British colony, and therefore

that species of trading is not declared unlawful by that Act of

Parliament; the trading declared by that Act of Parliament to be

unlawful must be a trading by British subjects. The trading, in order to

be unlawful within the meaning of this Act of Parliament, must be a

trading by British subjects; and moreover, at the time when this offence

is supposed to have been committed, it must have been a trading at some

colony either in Great Britain, or some colony or settlement belonging

to Great Britain. That will appear from another Act of Parliament,

passed to remedy the defect under the former Act of Parliament; your

Lordships will see, that by the 2nd section of the Act of Parliament,

the terms are general.

Mr. Justice _Wightman_. What Act are you upon Mr. Kelly?

Mr. _Kelly_. I am now on the 5th of George IV. By clause 2, it is

provided, “that it shall not be lawful (except in such special cases as

are hereinafter mentioned) for any persons to deal or trade in,

purchase, sell, or barter, or transfer, or to contract for the dealing

or trading in, purchase, sale, barter, or transfer of slaves, or persons

intended to be dealt with as slaves,” and to do a variety of other acts

which are by that section declared to be unlawful. Now, my Lord, though

the words are general, “that it shall not be lawful for any persons to

deal or trade in slaves,” the legal effect of them is, that it shall not

be lawful for British subjects to deal in slaves; and your Lordship will

see by the subsequent Act of Parliament it also means, that it shall not

be lawful for British subjects to deal in slaves, either in Great

Britain, or in the settlements or colonies of Great Britain, and that

that Act of Parliament did not extend to the trading in slaves in

foreign states.

Let us take the two points of the proposition. First of all, this manner

of trading in slaves by foreigners becomes material in this view: I

presume, from the opening and the evidence, it was intended that this

ship and these goods should be taken to Gallinas, and there used by the

consignees of the vessel and the goods, either by bartering the goods

for the purchase of slaves, or selling the goods and with the produce

buying slaves. It is not material to consider now how far that is within

the Act of Parliament, but the object, which I presume is the unlawful

object with which the prisoner at the bar is charged with having

dispatched this ship, is the object that the consignees or some other

persons at Gallinas should trade in slaves by means of the ship or the

goods. I submit that is not a trading in slaves within the 2nd section

of the Act of Parliament, that though the words are general, it does not

apply to aliens as the consignees of goods, which Martinez were, but to

British consignees of goods, which in the Act of Parliament makes the

act criminal. If the act be committed abroad, it is not an offence

within the Act. A trading in slaves abroad by Rolo, by Martinez, or any

persons whose names we have heard mentioned, would not be criminal

within the Act of Parliament. The object of the charge is the trading at

Gallinas. Now, the trading in slaves any where abroad by an alien is not

an offence within this statute.

In order to illustrate this, let me suppose that the vessel had reached

the Gallinas, that the consignees of the vessel had employed it for the

transport of slaves, and had taken the goods and bartered them for a

quantity of slaves, that would not have been illegal within this Act of

Parliament. It would undoubtedly have been illegal for any British

subject to have done so within any British colony, for this Act is

binding on all British subjects throughout the British dominions, but it

would not have been illegal for Martinez or any foreigner to deal in

slaves in that place; and therefore, supposing it were proved that the

prisoner at the bar had dispatched this vessel, that Martinez or Rolo

might deal in slaves in foreign parts, that is not one of the objects

to which this statute applies, for it applies only to British subjects,

and not to foreigners.

My Lords, I need not cite authorities, they are numerous. There is one

which is precisely to the point, The King _v._ Depardo; that is

perfectly conclusive upon that subject: that is in 1st Taunton, in which

a Chinese sailor who had enlisted, or rather had become a seaman on

board one of His Majesty’s ships, committed manslaughter in the Chinese

seas, and the question was, whether he was amenable. The great point

argued by the late Lord Tenterden and Mr. Burrough was, whether that

offence, committed by an alien, was within the Act of Parliament. The

prisoner having been convicted, he was afterwards pardoned, on the

ground that an Act of Parliament, declaring any particular act to be a

felony, such act, if committed abroad by an alien, was not within the

Act of Parliament, an alien not being within a British Act of

Parliament: so I apprehend no position to be clearer than that a trading

in slaves at Gallinas by Rolo, or Martinez, or any person to whom it can

be imputed to the prisoner that he intended this ship and goods to be

consigned, the trading in slaves by any alien there, would not have been

unlawful within this Act of Parliament. If it would, the consequence

would have been that a foreigner, Rolo or Martinez for instance, who

might be lawfully, according to the laws of their own country or the

laws of that place, trading in slaves, might, by engaging in that trade

in slaves in the course of this very transaction at the Gallinas, have

afterwards been prosecuted here, and convicted here; whereas nothing can

be clearer than that these laws against the slave trade can only make

the act an offence when it is done by British subjects, who alone are

the objects of a British Act of Parliament: therefore I submit that the

object being established, supposing the case sought to be established to

be so established that Mr. Zulueta dispatched this vessel to enable

Martinez to deal in slaves, that is not an object declared unlawful by

this statute, for that would have been a trading by aliens who are not

within this statute, and the shipping of goods to accomplish that is not

within it.

But, my Lord, I go further; I have the case of Depardo, in Russell on

Crime, it is not at so much length as in the report in Taunton. The

marginal note is, “A manslaughter committed in China by an alien enemy,

who had been a prisoner at war, and was then acting as a mariner on

board an English merchant ship, on an Englishman, cannot be tried here

under a commission issued in pursuance of the statutes 33 Hen. VIII,

cap. 23, and 43 Geo. III, cap. 113, sec. 6. 1 Taunton 26.” The principle

is perfectly clear, that a person afterwards coming to the country, is

not to be treated as if he had previously been a subject of the country;

so I say here, that the trading in slaves at Gallinas, or any where

abroad by a Russian or a Pole, or any other alien, would not have been

within this Act of Parliament at all; it would not therefore be an

illegal object within this statute, and the dispatch of goods or a ship

to accomplish that object would be no felony.

But, my Lord, the case is rendered perfectly clear by the highest

authority, namely, the authority of the Legislature itself, by means of

another Act of Parliament, the 6th and 7th of Vict. cap. 98. This Act of

Parliament shows that the case is stronger than I have put; and it shows

that until the passing of this last Act of Parliament, which took place

in the present year, 1843, it was not illegal, within the statute of the

5th of Geo. IV, even for British subjects to trade in slaves, except

within the British dominions. The object of this Act of Parliament is to

extend the provisions of the 5th of Geo. IV, so as to make it, from some

day mentioned in the Act, criminal in British subjects to trade in

slaves in any part of the world, in foreign states as well as in the

British dominions.

Your Lordship will find this Act recites the 5th of Geo. IV, and recites

the second section, to which I have called your Lordship’s attention;

“whereby it is enacted (among other things) that it shall not be lawful

(except in such special cases as are hereinafter mentioned) for any

persons to deal or trade in, purchase, sell, barter, or transfer, or to

contract for the dealing or trading in, purchase, sale, barter, or

transfer of slaves, or persons intended to be dealt with as slaves,” and

so on. Then it recites all the different acts which are declared

unlawful by the 5th of Geo. IV, and then it proceeds: “And whereas it is

expedient, that from and after the commencement of this Act, the

provisions of the said Act hereinbefore recited shall be deemed to apply

to, and extend to render unlawful, and to prohibit the several acts,

matters, and things therein mentioned, when committed by British

subjects in foreign countries and settlements not belonging to the

British Crown, in like manner and to all intents and purposes as if the

same were done or committed by such persons within the British

dominions, colonies, or settlements, and it is expedient that further

provisions should be made for the more effectual suppression of the

slave trade, and of certain practices tending to promote and encourage

it; Be it therefore enacted by the Queen’s Most Excellent Majesty, by

and with the advice and consent of the Lords Spiritual and Temporal and

Commons, in this present Parliament assembled, and by the authority of

the same, that all the provisions of the said consolidated Slave Trade

Act, hereinbefore recited, and of this present Act, shall, from and

after the coming into operation of this Act, be deemed to extend and

apply to British subjects wheresoever residing or being, and whether

within the dominions of the British Crown, or of any foreign country,”

and so forth: so that your Lordship sees this Act of Parliament clearly

shows this, that before the passing of this Act, though it was declared

to be unlawful to trade in slaves, the Act meant that it should be

unlawful only for British subjects to trade in slaves any where within

British settlements or colonies, and that it required the aid of another

Act of Parliament to make it unlawful (not for aliens--for as to them it

still is not unlawful--but to make it unlawful) even for British

subjects to trade in slaves, or do the other acts referred to in this

statute. The state of the law was, that aliens might trade in slaves in

foreign parts without contravening that Act of Parliament, and that

British subjects might trade in slaves in foreign parts without

contravening that Act of Parliament. By the Act of the 6th & 7th of

Vict. the provisions of the Act of Geo. IV are extended to the case of

British subjects: it leaves the case of aliens as it was before, and it

makes it unlawful for British subjects to deal in slaves, in the

Gallinas for instance--so that your Lordship sees the objection presents

itself in this way--this is an indictment for a felony, the felony being

the dispatching a ship for the accomplishment of an illegal object, that

being the slave trading at the Gallinas; but at the time when this Act

passed, it was not illegal for foreigners to trade in slaves at

Gallinas. If it is not illegal now, it was not then illegal for British

subjects to trade in slaves in foreign countries. The present Act of

Parliament renders it illegal for British subjects to trade in slaves in

the Gallinas, or any other foreign country; but it was to come into

operation only on the passing of the Act in 1843. My learned friend

reminds me that it does not come into operation until the 1st of

November: but that is quite immaterial; it has no retrospective

operation; it was not in operation in 1840 or 1841, when it is stated

that this felony was committed by the prisoner.

Before I sit down, I would also take your Lordship’s opinion whether

there is any offence proved within the city of London. Your Lordship

observes this is not a trial under a section contained under one of the

Acts of Parliament, providing that any offence against the statute may

be laid in Middlesex. The indictment is not at all framed on that

section of the Act of Parliament; it is framed on the common law, except

so far as it is governed by the Central Criminal Court, and the venue is

laid in London. It must be proved, therefore, that a felony was

committed in London. The felony, said to have been committed, is the

equipping, dispatching, using, and employing the ship, as charged in one

set of counts; and the shipping the goods, as charged in another set of

counts. Now, the dispatching the ship was at Portsmouth, and afterwards

at Liverpool. It was dispatched at Portsmouth, went to Liverpool, was

there loaded and then dispatched, and there all the goods were shipped.

So that your Lordship sees the equipping, the using, the dispatching the

vessel, any thing that could be done with the illegal object of dealing

in slaves, must have been done at Liverpool. Neither the vessel, nor the

goods, as far as appears, were ever in London. I submit to your

Lordship, on that ground, there is no offence committed in London.

Another objection which arises on the indictment I do not trouble your

Lordship with, for it will apply in future, if necessary.

Mr. Justice _Maule_. Are there any others?

Mr. _Kelly_. No, my Lord.

Mr. Justice _Maule_. I think there is no ground for the second point on

the Act of Parliament of 6 & 7 Vict., cap. 98, as affording a

construction to the Act of 5th Geo. IV, cap. 113. The suggestion is,

that this Act amounts to a Parliamentary declaration, that the Act of

the 5th of Geo. IV, cap. 113, does not prohibit Englishmen engaging in

slave trading abroad. I should be very sorry to put a construction upon

that Act, which would involve so great an absurdity to it, as would be

created by its being supposed to be laid down that that which was

declared to be illegal in Great Britain, and Ireland, and the Isle of

Man, and also in the East Indies, and West India Islands, is not at all

prohibited on the coast of Africa, which is the construction sought to

be put upon this Act of Parliament. I cannot help thinking the

Legislature have expressed the intention of prohibiting English subjects

trading in slaves on the coast of Africa; and if that be so, the

construction which Mr. Kelly insists ought to be derived from the

statute of Victoria is not the true construction, or one which ought to

prevail. With respect to the other objection, we think there is evidence

to go to the Jury of Mr. Zulueta’s acts in London.

Mr. Serjeant _Bompas_. May I call your Lordship’s attention to the 50th

section: “And be it further enacted, That all offences committed against

this Act may be inquired of, tried, determined, and dealt with, as if

the same had been respectively committed within the body of the county

of Middlesex.” If it is within the jurisdiction of the Central Criminal

Court, the venue is perfectly immaterial, if it is within the venue of

the Court.

Mr. Justice _Maule_. I apprehend, that if a prisoner is indicted for a

felony in Essex, within the limits of this Court, he will be tried here.

Mr. _Bodkin_. In a case in this Court where the venue stated merely the

jurisdiction of the Central Criminal Court, the Court of Queen’s Bench

held that indictment bad, because it was impossible to say from what

county the Jury were to be called.

Mr. Justice _Wightman_. There the indictment had been tried in

Middlesex, being removed from the Central Criminal Court. It was removed

by _certiorari_ and tried in Middlesex, and it was said there was no

direction on the record to try it in Middlesex.

Mr. Justice _Maule_. But Mr. Bodkin says, if it is a London case, there

ought to be a London Jury; if in Essex, an Essex Jury.

Mr. _Bodkin_. The Court of Queen’s Bench held the locality to be

material.

Mr. Justice _Wightman_. Not generally. I have stated how it became

material there, and why it is not material here. The case was removed by

certiorari, and therefore it became material.

Mr. _Kelly_. As this is the first trial under this Act of Parliament,

your Lordship will probably consider it proper to reserve the point

whether this trading is within the Act.

Mr. Justice _Maule_. The point has been very fully and ably argued, and

I think the Court has given it sufficient consideration. We have no

doubt about it; we do not consider it a point on which there is any

doubt.

Mr. _Kelly_. Perhaps the Jury will retire for a few moments before I

begin my address.

Mr. Justice _Maule_. For a few moments, not to exceed a quarter of an

hour.

[_The Jury retired, and after a short time returned into Court._

* * * * *

Mr. _Kelly_. May it please your Lordships.

Gentlemen of the Jury,--Their Lordships having determined that this

case is fit to be submitted to your consideration, I now proceed to

discharge the very anxious, the painfully anxious, duty imposed upon me

in consequence, of addressing you on behalf of the prisoner.

Gentlemen, _I should ill discharge that duty if I hesitated one moment

to denounce this prosecution as one of the most unconscientious

prosecutions that ever any individual has dared to bring forward in an

English court of justice_.

Gentlemen, pardon me if I should express myself in any part of this case

with any undue warmth; attribute it to the anxiety I must naturally

feel, when I know that all the interests in life, the happiness here--I

had almost said hereafter--of the young man at the bar, whose defence is

committed to my charge, depend upon your verdict upon this transaction,

upon which I, and I only on his behalf, have to address you.

He is a young man, now I believe only seven or eight-and-twenty; he is a

foreigner, born in Spain of a Spanish family; he and his ancestors are

of that country and not of this, and he has become a member of the

mercantile house of which his father is the head. He has, during the

latter years of his life, been resident in England, and has from time to

time bestowed some attention upon the business of the counting-house and

the commercial concerns in which the firm were engaged, and he has

participated but as a member of the firm in the ordinary course of

business in this transaction, which is, indeed, a very small transaction

among many very great and important ones passing through that house; and

now, to his consternation, and to his unspeakable astonishment--he, a

young man of spotless character--he, who one of the witnesses for the

prosecution has already described to you upon his oath as a good son, a

good brother, a good father, a good husband, and as an honourable member

of society--he finds himself charged here with a felony, and that upon

evidence such as I shall have in detail to call your attention to. He is

charged with a felony upon which, if from want of ability or from want

of caution in his advocate he was to be convicted, he must be

transported for fourteen years as a felon, and forfeit his property, and

forfeit his character, and be ruined for life.

Gentlemen, this is the case before you, and I do ask in the outset, is

this a prosecution which ought to be brought forward? Mr. Serjeant

Bompas, whose duty it was to state the case to you, having opened that

case--how, I shall have to remind you when I call your attention to

something which in the opening fell from my learned friend--having

opened his case fully and in detail in a speech of some two or three

hours, after he has sat down thinks it necessary to rise again and tell

you that Sir George Stephen is the prosecutor in this case.

Gentlemen, you have already heard from one of their Lordships, and you

know it is a matter of history, that the British government has long

exercised its energies and its mighty powers in putting down and

preventing the odious slave trade: you know that the powers of the

government have been wielded for many, many years past with that view,

by those who are sincerely, from the bottom of their hearts, determined

by every lawful means to put down that trade; you know that the whole

conduct of this honourable and innocent young man has been under the

consideration of the former government and the present government. The

late Colonial Secretary, Lord John Russell, whose duty it would have

been to have protected his own character, and that of Great Britain, by

this prosecution, if any offence had been committed, was a member of the

Committee, and inquired minutely and distinctly into the transaction;

Lord Stanley, also, the present Colonial Secretary, was a member of the

Committee. Both governments were regularly and fully acquainted with all

the transactions in question, and those governments, whose duty, as my

learned friend has told you, it was to do every thing they might to put

down the slave trade, so far from feeling it a case for prosecution, the

Committee themselves, and the present and the former governments, have

fully acquitted this young man, and the house to which he belonged, of

any guilty participation in this transaction, as I trust you will to-day

acquit him by your verdict. The government of 1840 and the government of

1842, the past and the present government, fully acquainted with all the

circumstances, have thought it proper, so far from dreaming that any

guilt could be imputed to this young man, to agree to a Report of a

totally different character. And a society, called “The Anti-Slavery

Society,” existing in this very town, failing to take up the

prosecution, you have this very singular fact, that Sir George Stephen,

though he put his name upon the back of the indictment, dare not put

himself in the box for me to cross-examine. You have Sir George Stephen

failing to sign his name to the notices, and you have at last the tardy

and reluctant acknowledgment of his counsel that he is the prosecutor. I

ask you, gentlemen, to recollect this: Lord John Russell and Lord

Stanley were both of them members of the Committee; both were present

when this matter was inquired into; before whom Captain Hill was

examined, before whom Captain Denman was examined, and before whom

another gentleman, Colonel Nichol, was likewise examined. That Committee

put forth the large volume which I hold in my hand, and before them this

young man voluntarily came, and was examined as to every part of this

transaction; aye, and as to the conduct, and character, and dealings of

his house, from the time it was first established. And do you believe,

if this had been a proper subject for prosecution, that the members, the

leading members of a government, the government of a kingdom which has

spent twenty millions of the public money to put an end to the slave

trade--do you think, if they had felt that this was a proper subject for

prosecution, that it would have been left to Sir George Stephen to come

forward with his own money, and with his own means--for what purposes I

cannot conceive, they must be left to his own feelings, and I do not

envy him his feelings--to be the prosecutor of an indictment, which, if

it succeeds, must for ever crush and ruin a young man, with respect to

whom I shall demonstrate there exists but at most that species of

suspicion, which ought never to be cherished against one whose character

is, as I shall prove this young man’s character at the bar to be, above

all sort of suspicion--that suspicion, which, if it does exist, may be

a fit reason for inquiry, but ought no more to be the ground for a

prosecution for felony than it ought to be the ground for a conviction

without any inquiry at all.

Gentlemen, what is the charge brought forward? Pedro de Zulueta, the

young gentleman for whom I appear before you, is, I believe, the eldest

son of his father: his father, now advanced in years, is the head of the

house. He is a gentleman, who has filled the very highest offices in his

own country, and who has been, I believe, at one time, the President of

the Cortes in Spain, an office analogous to that of Speaker of the House

of Commons in this country, and was member for the city of Cadiz as long

as his commercial concerns required him to remain and discharge the

duties of that situation. He is a gentleman, who has now reached a very

advanced age without a shadow of imputation upon his character; who has

been engaged during the whole of his life in commercial transactions of

the largest and most important nature and extent, and who not only

himself, but his father and grandfather before him, who for seventy

years carried on an extensive trade in Spain, and at a time when not

only Spain, but I grieve to say our own country, Britain, was engaged

through her colonies in extensive slave trading, abstained from ever

dealing or turning to their own account the value of a copper farthing

in that trade; who, so far from that, when from some bankrupt estate

some slaves became the property of the father, he immediately gave them

their freedom--a number of slaves passed to him as a part of a bankrupt

estate, as they might do at that time, he immediately manumitted them,

and gave them their freedom--he it is, who having mainly conducted this

transaction, he finds it in vain to look back to a long life, spent in

honour, honesty, and integrity, a life spent in deeds of charity and

kindness--he finds it in vain to look to the character of his house

never before assailed by the breath of suspicion--he finds his own son

indicted in this country--a country, under the protection of the laws of

which he is living, and to which he has brought his commerce, and in

which he and those belonging to him are spending the large fortunes they

have gained in their trade; he finds, under the laws of this country,

his son is indicted as a felon, for having signed his name to one or two

documents--and I will prove to you that is all he has done in the course

of a transaction which passed through their house as commission agents

for the house of Martinez & Co., at the Havannah--and I will convince

you, when I refer to the evidence before you, _evidence which has been,

I must say, most unfairly adduced, which has been perverted and brought

before you in a way which I cannot commend_, I will show you upon the

evidence that that is all that can be charged upon this young man--that

in the course of a transaction which passed through the house in which

he is now a principal, but only since he has been of age has he been a

member at all to entitle him to sign documents--he signed a letter,

perfectly innocent in itself, and a charter-party, a regular mercantile

transaction, the profit of which to the house was of the most trumpery

amount--he did those two acts, in the absence of his father, the house

here conducting the business for their agents--and for that he is

brought to the bar of the Central Criminal Court, and you are asked to

pass against him a verdict of guilty, fixing upon him the crime of

felony, and all the dreadful consequences of that guilt, which by this

indictment he is liable to.

Gentlemen, _I must say, that a proceeding of this kind does no honour to

those great and zealous efforts made for the total extinction of the

slave trade by Britain and British means_. If those, who sincerely

desire to see that trade effaced, as we all trust in God it soon will

be, from the surface of the earth; if they desire to see their efforts

succeed, and if they desire to aid the great exertions of Britain for

the destruction of the slave trade, let them not treat as felons those

merchants in Great Britain or elsewhere, who may, without having any

reason to suspect they are illegal, carry on trading concerns with the

coast of Africa; let them try, by their cruizers, to stop the slave

vessels and liberate the slaves on board; let them exert themselves to

put an end to the slave trade wherever their arms or their efforts can

be carried; but let them remember, it is not by force of arms it will be

abolished--it is by civilisation, and the arts and commerce, the basis

of civilisation, it alone can be put an end to. If you would lead to the

total destruction of that trade, let it be indeed by vigilance, let it

be by all the great efforts made by our ships abroad and our councils at

home; but, above all things, seek to introduce commerce--for where there

is commerce, there must in time be civilisation, intelligence, and moral

improvement, and education, and progress in the arts, which are

calculated to raise the character of any country--wherever there is

commerce, there must be commercial people, there must be educated

people, there must be persons to carry on the government, there must be

courts of justice established, and persons to administer the law--that

commerce will increase, and will lead to civilisation, and we can

introduce all that is good in this world, and promote all the best

objects in life--and then the slave trade will cease, not by force, but

by civilisation. And I will show you, when I go through the evidence, if

you will fairly consider it altogether in the way in which it ought to

be brought before you, and in which it ought to be presented to your

minds, I undertake to satisfy you that these gentlemen are not capable,

and that there is no ground for imputing it to them, of lending their

assistance to that odious traffic; and I say, that no Englishman, nor

English house, has done more to prevent and destroy it than the house of

Zulueta & Co., both in Spain and in this country.

Now, Gentlemen, let us see what the charge is. The charge is this:--That

the prisoner at the bar employed and dispatched a vessel, and shipped

certain goods, in order that the goods and vessel might be employed in

the slave trade. Gentlemen, I wish that my learned friend, Mr. Serjeant

Bompas, had been more explicit in his opening address. I think it would

have been but fair if he had stated distinctly what he alleged to be the

object of the party prosecuted. To say he has the general object of

engaging in the slave trade is speaking most vaguely. Does he mean that

the prisoner has dispatched this vessel, intending that slaves should

be taken on board the vessel? Does he mean, that Pedro de Zulueta

engaged in shipping the goods, in order that the goods might be bartered

against slaves? or, does he mean, that he shipped the goods, in order

that the goods might be sold for money, and with that money that slaves

might be bought? Gentlemen, whatever might be the object, I think I

shall satisfy you that Mr. Zulueta was perfectly innocent; that he had

no such object, that he had no such intention, that he had no such idea:

but it is hard for him, that in a matter so much affecting his happiness

I should have to grope my way in the dark to find out what the charge

is, and that while I am exhausting my strength and your patience in

finding out the charge, it may turn out that something more was in the

mind of the prosecutor, or in the mind of the person who framed the

indictment, merely because Mr. Serjeant Bompas, acting under the

instructions of Sir George Stephen, has not properly defined what he

imputed to Mr. Zulueta. It is very easy to say to a British merchant,

who purchases and ships for another house a quantity of goods, and sends

them on board a vessel consigned to the coast of Africa, it is easy to

say to him, upon some part of the coast of Africa the slave trade is

carried on, and you, in some way or other, intended to promote it; it is

easy to say that may be, but it seems to me, it ought to have been fully

and distinctly alleged what was the object they meant to impute to

him--whether it was to do that which my learned friend has thought fit

to accuse him of.

But, let us see what the charge is. I must assume it to be this--that,

in some way or other, Mr. Zulueta knew, that when he, as a member of the

firm, took some part in dispatching the vessel, or in shipping the

goods, that the vessel, or the goods, or both, were to be employed in

the slave trade--by whom employed, whether by Messrs. Martinez & Co., at

Cadiz, or the consignees, Rolo & Co., or Captain Jennings himself, my

learned friend has found it to be convenient to withhold even from

you--therefore, what the precise charge is I am seeking to find out, but

I am utterly unable to ascertain. It may be, that they contend that the

object was that Martinez & Co., who are supposed to have some agents at

the Gallinas, intended to convert the goods directly into slaves, or

into money to buy slaves; it may be, that the consignees of the goods

are the parties to do that; it may be, as he says, that Captain Jennings

was a slave trader on his own account, and that he was to do it: which

of the three it is I do not know; but whichever it is--though it would

make considerable difference in the legal form, because sending goods to

be converted into money is no offence, though that money may be

converted into slaves, although sending goods may be an offence--but I

am not entering into that, for though there is a distinction in law, I

make none in fact--I entirely, on behalf of the prisoner, disclaim the

slightest notion or idea of giving the slightest countenance or aid,

directly or indirectly, to the slave trade, in any shape or form that

any man can suggest; and I say it would be a most uncharitable wresting

and perverting of facts, which may be capable of two constructions from

their ordinary and fair effect, to say that they throw a shade of

suspicion upon any part of the conduct of the prisoner.

Gentlemen, I pray you to consider the real nature of the transaction, as

it is to be collected from that to which my learned friend has been

obliged to refer--and he could not make out his case without it--from

that statement made by Mr. Zulueta himself voluntarily before the

Committee. It is this, that this young man, born in Spain, but having

from the high station of his father had a most excellent education,

being of amiable character and intelligent, thought he might be of use

to the house in England--there is a house in Cadiz, but the house we

have to deal with is that in England--he comes here, becomes a member of

the firm, and remains here; he speaks English a great deal better than

his father, and in the transactions requiring more of speaking English

he took a more prominent part: but the correspondence and the evidence

in the case shows, that the orders given in the commercial transactions

are entirely in the handwriting of the father almost; and it is a mere

accident that the name of the son is put to documents not prepared by

him, as I will show you he puts his signature to them in the ordinary

course of business in the house. The house of Zulueta & Co. has

transactions with most parts of the world, but is most largely engaged

with Spain, and the Havannah, and several other places. With regard to

Africa, the house has nothing to do with it--and I pray your attention

to this point, I implore your attention to it, or you may misunderstand

the evidence given by Captain Hill and Captain Denman--they had no

more--Zulueta & Co., had no more to do with the trade to the coast of

Africa than I have, or any of you I was going to say, I hope, you have,

but if none of you, had. But it so happened, that trading to the amount

of three or four hundred thousand pounds in the course of three or four

years, or more largely still, with this house of Martinez & Co., that

Martinez & Co., whose business was carried on at the Havannah and Cadiz,

also had some dealings with various parts of the coast of Africa,

amongst others at the Gallinas; and out of transactions to the amount of

200,000_l._ or 400,000_l._, there are transactions to the amount of

18,000_l._ or 20,000_l._ in ten years or more--call it twenty years--I

believe it is ten years--to the amount of about 18,000_l._ or

20,000_l._, which consisted in this--not a trade to Africa, but this

kind of dealing--Martinez & Co., who trade to the Havannah, to which

Zulueta & Co. trade, also were in the habit of consigning cargoes of

sugar, and other produce, from the Havannah to England; and having some

dealings with the coast of Africa, they have upon some five or six

occasions desired the house of Zulueta & Co., who live in England and

carry on their business here, to furnish them with this trifling amount

of British manufactures, and send them on board any vessel they may buy

or engage for the purpose, to such part of the coast of Africa as they

may direct. The house of Zulueta & Co. carrying on business here, from

the immense extent of their transactions having a house at Liverpool,

upon receiving an order to ship goods to the amount of a few hundred

pounds, they order the goods through their Liverpool house, the great

emporium of manufactures in that part of England, and they put them on

board any ship directed by Martinez & Co.; they ship the goods in any

shape or way as they may direct; and from the time the goods are

shipped, they know no more of them, and have no more to do with the

subsequent disposition of them, than any one of you I am addressing. It

turns out, for so Captains Hill and Denman who have been upon the coast

say, that the Gallinas has no produce to return for goods; they say that

there is nothing but the slave trade there; that though the goods may be

unshipped and landed, there is no return produce: but Messrs. Zulueta &

Co., who had no trade with the Gallinas, who I will show you upon the

evidence never until this transaction heard the name of any one of the

three parties to whom this cargo was consigned, they sent the goods to

the Gallinas as they would have done to the Havannah or to Gambia, to

Madagascar or the East or West Indies, and troubled themselves no more

about it as soon as the goods are shipped: because it is suggested that

some parties concerned in these slave trading establishments may make an

iniquitous use of these goods in the slave trade, they are to be told

that this young man--(not attacking his father, whose ancient name and

character for honour and integrity would protect him)--has committed a

crime; they seize upon this unhappy young man; they say, because your

house have sent goods to that place, ordered by your correspondents, you

shall be seized as a felon and tried for a felony.

Now let us look at the evidence. I will take the evidence as it was

given, and consider the evidence apart from the statement: take my

statement as nothing, and take my learned friend’s statement as nothing;

let us see what the case is, divested of speeches and speech-making, and

those reasonings which I will show you have no application to the

conduct of Mr. Zulueta.

There is the house of Zulueta & Co. many years established in England,

they have correspondents abroad, the house of Martinez & Co. at

Cadiz--and this young man writes a letter, in these terms, dated the

20th August, 1840: “In reply to your favour 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;” then it is addressed to Captain Jennings,

Portsmouth. What is stated concerning that letter is true, that it is

not written by this young man at all. I do not know whether the original

letter was handed in, but you shall see it: my learned friend says, it

was proved that it was written altogether by this young man himself to

the captain.

Mr. Justice _Maule_. It was proved so in this way, “I believe it to be

the writing of Pedro Zulueta.”

Mr. _Kelly_. Whether it was so or not it is quite immaterial, I need not

say that the contents are perfectly innocent. It is clear, that before

this time the house had employed Captain Jennings to treat for the

purchase of this vessel. There was some demur about the price. This

letter was written, in order, if possible, that the vessel might be

obtained for the sum of 500_l._; and in the way in which people bargain

they tell them, that if they will not take that sum they will not buy it

at all. That letter is written by Mr. Zulueta: I need not say that there

is no felony in the member of a firm like Zulueta & Co. authorising

Captain Jennings, or any other man, to offer 500_l._ for a vessel. Here

the evidence with regard to the young man I am defending is a blank: it

does not appear he interfered directly or indirectly in any way, or knew

what was going on; but it appears that the vessel was ultimately

purchased at that sum, dispatched to Liverpool, and the goods were

loaded on board the vessel; and then the charter-party was made out, to

which I will now call your attention, and which was signed by the

prisoner Mr. Zulueta. Now you will see how my observations apply: it is

in the usual form; it is printed, and the blanks, as you will see, are

filled up, not in the handwriting of the prisoner nor any member of the

firm, but in the ordinary course of business by the clerk whose duty it

is to prepare the charter-parties; and it is signed, because it had to

be signed. Mr. Pedro Zulueta was in the counting-house, and his father

was out upon some other business, and Pedro Zulueta signed, “for

Martinez & Co., of Havannah, Zulueta & Co.” These are the two papers in

the handwriting of the prisoner--a letter to Captain Jennings, saying,

offer 500_l._, if they will not take that no more will be given, and the

charter-party by which the vessel is chartered from Captain Jennings to

Martinez & Co., the house of Zulueta acting as agents, not buying the

ship, not entering into the transaction as on their own account, but

acting as agents for Messrs. Martinez--that is a paper partly written

and partly printed, and the name is subscribed “for Martinez & Co.,

Havannah, Zulueta & Co.” Those are the only two documents in the

handwriting of the prisoner: his evidence I will refer to more

particularly by and bye. The evidence shows what I never denied, that

the house of which he is a member are civilly responsible for all the

house may do. That his house effected the purchase of a vessel at the

time--that it was desirable that Captain Jennings should be the captain

(and I will give you a reason for that presently)--and that the house

caused goods to be shipped in it at Liverpool--and that from that time

they heard no more of it, is not denied. It is perfectly clear, if the

case rested there, it was merely this--that the house of Zulueta & Co.,

as agents for Martinez & Co., purchased the ship for Jennings, and that

the purchaser made Martinez & Co. the mortgagees of the ship, so as to

put them in possession of the property, but to leave Captain Jennings

nominally the proprietor and captain; and then they shipped for their

principals a quantity of merchandise, regularly passing through the

Custom-house on board the vessel, and consigned to the coast of Africa.

It is perfectly clear no sort of imputation can be thrown upon any one

concerned in that transaction.

But, Gentlemen, let us see what are the circumstances upon which the

prosecutor calls upon you to infer, not only that Zulueta & Co., and

particularly the prisoner at the bar, purchased this vessel, and

dispatched this vessel, and loaded the goods on board it, but that he

did it not merely knowing, but for the very purpose, in the language of

the indictment, “to accomplish the object of using them in the slave

trade.” What is the evidence upon which they call upon you to infer

that? First of all they do this, and _I do pray your attention to this

part of the case, because it is a point affecting, and vitally

affecting, the safety of every manufacturer, every merchant, nay every

tradesman in this country_, who happens to deal in any goods, however

lawful, but which may be shipped to the coast of Africa; they say this,

you, young man, Pedro Zulueta, a member of this firm, you knew that

these goods in this ship were to be used for the slave trade, and you

dispatch the ship and goods that they may be used in the slave trade.

Why, have you ever admitted you knew it? No, I have denied it, and have

offered to deny it upon oath.--Have we proved you ever gave any secret

instructions they should be used for that purpose? We give you notice

that we call for your instructions, but before the Court and Jury we

dare not call for them.--Did you receive any information from Martinez &

Co. that they might be used for that purpose? No. We give you notice to

produce all the letters from Martinez & Co., and his counsel comes

forward and says--_Here is every document, here is every account, every

scrap of paper at all relating to this transaction_,[15] and I offer you

the oaths of every body in the counting-house, without examining them

myself, that this is all that can be found. No, says the prosecutor, it

suits us better to charge you with a felony, and call for documents

which might or might not support the charge; but when you have got them

here we will not read them before the Jury, we will not lay them before

the Jury, but we will do this--in order that Sir George Stephen, sitting

near Mr. Serjeant Bompas and instructing him _from his own grossly

perverted views of the facts and the truth, to misrepresent and to

colour almost every material document_ to be given in evidence in the

cause, in order to give them a reply, they say “you may produce them.”

That is what they do. This, then, is a case in which they say we will

call for your instructions to the captain, because we say, although

there was nothing in your handwriting found in the vessel, except this

innocent letter offering 500_l._ for the purchase of the ship, and the

charter-party signed by the house, there were some secret instructions.

We call for all the letters, we will not use one, but we leave you to

prove there were none such. We say, you were informed by Martinez & Co.

that they were to be so used, and we give you notice to produce the

letters; we will not call for them, we leave it to you: and if we were

to read twenty different letters, all the letters from Martinez & Co. to

Zulueta & Co., you would have from Mr. Serjeant Bompas, with Sir George

Stephen behind him suggesting--Oh, there were secret instructions

behind! How do we know there was not a letter behind, which contained

secret instructions? That is the way that a case for felony is to be

conducted; and therefore I beseech you not to look at what my learned

friend urges upon you, but look at the facts. The facts are, that this

young man offered 500_l._ for the vessel, and that this young man

signed the charter-party, and those facts he admitted before the

Committee of the House of Commons; he admitted that this ancient and

honourable house, without a stain upon its character, purchase the ship,

and charter the ship, and ship the goods, as the agents of Martinez &

Co., to the coast of Africa. Then, when they have to prove the guilty

knowledge that this was done for the purpose of these goods being used

in the slave trade, after going through this farce of calling for papers

they dare not use, they say this--We cannot prove that this young man

ever thought, or wrote, or sent, about the slave trade; we cannot prove

he ever said a single word to Captain Jennings that he was to use the

ship or goods in the slave trade; we cannot prove that their

correspondents ever wrote or said a word to them upon the subject; but I

will tell you what we will do, he was never at the Gallinas, but Captain

Denman was at the Gallinas, Captain Hill was at the Gallinas, Colonel

Nichol was at the Gallinas, and we will prove by them that the slave

trade is carried on to a considerable extent there; we will prove

through them, that there are such persons there as Rolo, Alvarez, and

Ximenes; and we will prove that those three persons are notorious slave

dealers; and we trust that the Jury will say, here are goods sent to the

coast of Africa--and it is true, because goods are constantly sent

there, British produce to the amount of millions is sent there, and

forms a great part of our commerce, but it is sent to that part of the

coast where these three honourable gentlemen will say that nothing but

the slave trade is carried on--and it will then lie upon him to show

that they were not intended to be so used.

[15] Pointing to a mass of books and papers on the table.

Now, Gentlemen, if Mr. Zulueta had known as much of the Gallinas as

Captain Denman does, who has been cruizing about there since 1835, or as

much as Captain Hill knows, who has been upon that coast for several

years past, or as much as Colonel Nichol, who has been there twenty

years; if he had ever been there or lived there to see the kind of

commerce carried on, and to know that there is no lawful commerce at

all, but that there is the slave trade only, I should say that you put a

man living in England in a very peculiar situation, to which I will call

your attention in a moment, but it would raise the question in your

minds, whether he might not suspect that these goods might be sold for

money, and the money applied in the purchase of slaves, or the slave

trade be promoted by the transaction. But, Gentlemen, I beseech you to

remember this; they have not proved this, and the contrary appears, that

this young man--and I speak of the father as well--that neither he nor

his father were ever on the coast of Africa. “Oh, but” says my learned

friend, Mr. Serjeant Talfourd, in a question put on re-examination to

Captain Denman, “could a person who had traded for twenty years to the

Gallinas be ignorant that nothing but the slave trade was carried on

there?” If it was so, if he had thought so, it is not by his

inferences--whose honourable zeal in putting down the slave trade has

carried him so far as to make him a defendant in two or three actions,

which may come on to be tried in this country--however honourable his

motives and feelings (and I admire the zeal he feels upon the subject,

political as well as private zeal)--it is not what he knows which is to

determine whether Mr. Zulueta is to be convicted of felony. But it is

not that to which I was about to call your attention. If my learned

friend, Mr. Serjeant Talfourd had reflected when he used that expression

in the question he put, “Do you think that a person trading twenty years

there could be ignorant of the nature of the trade carried on?”--he

would have seen it was wholly inapplicable to the case of Messrs.

Zulueta & Co. In the first place, this young man has not been a third

part of twenty years in the house; in the next place, the house has not

traded to the extent of 20_s._ to the Gallinas, they have never had any

communication with it. Mr. Serjeant Bompas opened among many other

things which he has left unproved, that he would show that was untrue,

and that he had had dealings with them. If that was so, it would have

been easy to do it; but they find he never had any dealing with the

place; he had no letter or bill from the place, or any article or thing

of any sort or kind from any person there, which could convey to his

mind whether it was a slave trading place, or a place where a great deal

of commerce was lawfully carried on--nothing of the kind. I pray your

attention to what it is my learned friend has founded this observation

upon. All that Zulueta & Co. have done, as you will see by the evidence

before you, is, that they have received directions from their foreign

correspondents to ship goods to the Gallinas, and have put those goods

on board a vessel, and then dispatched that vessel, and shipped those

goods for the Gallinas; and from that time forth they have heard no more

of them. Now, I beg to ask you, their correspondence taking place with

Martinez &. Co. at the Havannah or Cadiz, but having no correspondence

with the Gallinas, unless their curiosity led them, as it did me this

morning to look at the map or globe to find the place--and they looked

in vain, unless they looked at a pretty large map, to see whether it was

a river, or an island, or city, or what place it was--how should they

know any thing about it? I agree we did not want Captain Denman’s

evidence, for that they had shipped goods for twenty years, and traded

there in the ordinary sense of the word, if they had had correspondents

there and dealt on their own account with them, and sent them goods from

time to time, and had goods in return, or written letters to them, and

had letters in return, they might through them have obtained some

information of the nature of the business carried on there. But, it is

no such thing. What this young man said in his evidence before the

Committee turns out to be true; if it had not been so, they had abundant

means to contradict that evidence: and Sir George Stephen, whose zeal

spares no expense, no effort, would have satisfied you that they had

written letters to the Gallinas, and had sent goods there. All that

appears is, that from time to time--the transactions being really a drop

of water in the ocean of their great mercantile dealings--they have out

of 400,000_l._ in ten or twenty years shipped goods to the amount of

22,000_l._, which have gone to the Gallinas. But how should they have

known it was for the purposes of the slave trade? Suppose any one of you

were a dealer in muskets (for they are some of the goods shipped on

board this vessel) and that a person in Spain writes to you, saying, I

want a thousand muskets for a place called Gallinas, on the coast of

Africa--would you dream, if you prepared the muskets and sold them, and

made out the proper papers and dispatched them according to the

order--would you dream, that you were committing a felony? That is what

it comes to.

Just see how the case stands--Captain Denman knows, and Captain Hill

knows very well, that shipments to the Gallinas may be something

suspicious, because they say, as far as their experience goes, there is

no lawful trade there, and that they are all slave traders there; but

how is any body in this kingdom who has never been there, and never

corresponded with the place, to know that?

What is the next fact? _Captain Hill proves--though it was with the

greatest reluctance he ever gave an answer in favour of this young man

whom he is endeavouring to send to Botany Bay--at last, he let out by

accident that there are places, on the coast of Africa, to which British

produce in large quantities is sent, where the trade is perfectly

proper, and where goods lawfully are sent and disposed of; and that at

many of those places there are persons, who trade largely, and to a very

great extent in British produce, who also deal in slaves._

Here, again, I beseech you to turn your attention to the facts and

forget the statement. You may be manufacturers of guns or gunpowder, or

commission-agents living in the country, who for the purpose of shipment

purchase those goods; in either case a party comes and says, I want a

thousand muskets and two tons of gunpowder to be shipped to a certain

place on the coast of Africa. I ask you--are you first to consult the

map to ascertain the place, and having ascertained where it is, are you

to go to somebody you may hear of--Captain Hill or Captain Denman--and

inquire, whether they have been upon the coast of Africa, and can tell

you the character of the trade carried on there? Are you next, the

person being a Spaniard or Portuguese, to inquire whether they ever deal

in slaves, and if you find they do, are you to say, I will execute no

order you give me? _That would annihilate two-thirds of the commerce of

Great Britain, and would prevent the most useful transactions of

commerce which can occur upon the coast of Africa._ It is, therefore, I

say, in a charge of this momentous character, it is not to be determined

upon suspicion. You are not to hang or transport a man upon vague

suspicion; you must show that the crime has been committed; you must

have before you direct evidence to prove that he must have known--not

that he might have known--by inquiry, if it had been duly answered, and

in the mean time the orders would be lost--not that he might have

learnt, or that the result of the inquiry might be that the goods might

by possibility be unlawfully employed--you must have direct evidence

that they were shipped for that purpose. The statute does not say, that

every one who ships goods to a slave colony shall be guilty of slave

dealing; the Act does not say, that whoever ships goods to a place where

the slave trade is principally carried on shall be guilty of slave

dealing; the Act does not say, that any body who shall ship goods

without taking care that they shall not be employed in slave dealing

shall be guilty of felony; the Act does not say, that any one who ships

goods which may be employed in the slave trade shall be guilty of

felony--God forbid that it should say that!--but the Act says, if a man

ships goods for that object, if he ships goods with the intent--which as

far as in him lies he seeks to carry into effect, that they may be used

in the slave trade--that is a felony. Where, in God’s name, is there a

particle or scintilla of evidence to that effect here? Where Captain

Denman tells you it is a well-known slave trading colony, and that he

knew it before he went there? Did you know it? I apprehend, if my

learned friend knew it before he was instructed in this case, he knows

geography, as he does every thing else, much better than I do. My

learned friend says, you are not to shut your eyes to what you are

doing. No; I agree if a man commits a crime, or does a mischief, he is

not to shut his eyes to the consequences of it. I deny, once for

all--and I appeal to the learned Judges whether I am not correctly

stating the effect of the law--whether a man, who has no intention to do

an unlawful act in the shipment of goods, is bound to make any inquiry

as to what is to be done with goods, which, in obedience to the orders

of a foreign correspondent, he ships to any place on the face of the

earth. He is not bound to make inquiries; if he was, it would throw

impediments in the way of commerce more injurious than the slave trade

itself in any part of the world. Again, they speak of Messrs. Martinez

being slave traders, and they speak of the admission that appears upon

the evidence of Mr. Zulueta, that he knew that Martinez & Co. had been

engaged in the slave trade. I will show you, when I come to refer to

this evidence, which is all-important in this case, that there is

nothing of the kind--he speaks of the knowledge he had; he gave his

evidence in 1842, and you will find, when you look on a little further,

he had learnt it since the transactions in 1840.

Now, suppose he did know it--suppose a commission-agent knows that a

foreign correspondent of his house is extensively engaged in the slave

trade--he knows, at the same time, he is extensively engaged in a lawful

trade in sugar, tobacco, and other commodities--I ask you, whether if

that foreign correspondent, by letter, desires him to freight a ship

with a quantity of goods, and he does so, he is to be treated as a

felon? whether, because a trader in both ways--a trader lawful and

unlawful--may use his goods unlawfully, and the shipper knows it and

cannot prevent it, he is to be treated as a felon or wrong doer? I deny

it: if it were so, the first mercantile houses in the country would

consist of none but felons. It would be in vain to suggest

houses--though one rose before my mind, whose extent of transactions is

equalled only by the honour and integrity of their character, that house

trading largely as it does with the Havannah and the Brazils, where all

the extensive merchants are slave dealers, that house must sacrifice

two-thirds of its trade--and all that loss must accrue to Great Britain,

because that trade may enable those who carry it on to carry on also a

trade in slaves. It is quite intelligible, that that was the very object

of the inquiry before the Committee, where Mr. Zulueta, Captain Hill,

and Captain Denman, and a score of other persons were examined before

the Colonial Secretaries under both governments, and some of the most

practical men of the present day--it was for the purpose of determining

and reporting to the House, whether it would be desirable to extend the

criminal law of the country, and prohibit the trade altogether with

places where the slave trade was carried on, or with persons notoriously

carrying it on. Nobody ever dreamt, but Sir George Stephen, that it was

illegal to trade with a slave dealing place, or a notorious slave

dealer; it is only illegal where you know the trade you carry on is to

promote the slave trade, and you know that to be the object. That was

one of the objects of the Committee, to ascertain whether it was

desirable to prevent the trading with slave dealers, or slave trading

places. I may not regularly refer to their opinion; but they made a

Report in 1842, and no law is passed at all affecting transactions of

that nature--the only Act is that, which, for another purpose, I called

my Lord’s attention to, and which made that illegal, not illegal before,

namely, the trading by British subjects in foreign ports--not making it

criminal to trade with slave traders or slave trading places. Then let

us see the result. You are called upon, where the shipment is innocent,

and the employment of the ship is innocent, you are called upon to

destroy this man, because he has put his name to one or two innocent

documents, and because they say it was so notoriously a slave trading

place that he must have known that they were to be so used. My answer is

in a single sentence--he knew nothing of the kind; they have not proved

it; they have proved that Captain Hill, and Captain Denman, and others,

conversant with the spot, knew it; they have not proved that Mr. Zulueta

knew it--the evidence is entirely a blank upon the subject. If he

thought of it at all, and I think that a man is bound to inquire about

the matter, he would probably think this--there are a great number of

houses in the city of London executing large commissions for the African

trade, and a great deal of British commerce goes to the coast of Africa

is lawfully disposed of, and promotes the civilisation of Africa; and I

have every right to suppose that this goes for a lawful purpose; if that

is not so, it must be shown to be for an unlawful purpose. If that is

not fair in the mouth of Mr. Zulueta’s house, it is not fair in the

mouth of any firm trading in that way with the coast of Africa; and

unless it had been shown that Mr. Zulueta himself was personally

informed of, or knew, the character of this place, what is proved by

Captain Denman or Captain Hill has nothing to do with the question--so

much for that part of the proof, from which you are called upon to infer

that the prisoner shipped these goods to accomplish this wicked object,

because it is proved the slave trade was carried on there.

Now, Gentlemen, let me say one word more of Captain Denman: he does not

show, in the correct sense of the words, that the slave trade is

extensively carried on there; he may be right in saying there is no

produce there; but is there no mode of receiving goods and selling them

for money, though no goods are exported? There are various towns or

villages, one of nine hundred inhabitants, and others of various

numbers, and native chiefs also; there are also Europeans, principally

Spaniards--I should like to know, whether the native chiefs, and the

Spanish population, and the nine hundred, the population of Tiendo, do

not lawfully, for pieces of money or doubloons, buy British produce

lawfully? It may be said, that they can only get this money by the slave

trade; that is, by having previously dealt in slaves; but where is that

to stop? If you are to trace the money from hand to hand, in order to

ascertain whether, since a bank note was made or stamped, or the money

coined, it has not been the medium of some illegal transaction, there is

an end to all commerce. It may be, that these men, Rolo and Pedro

Blanco, may have sold a thousand slaves for dollars, and may have paid a

debt to Rolo, and with that Rolo may have paid somebody else, who may

have bought the goods of Mr. Zulueta--I wish to know, whether Mr.

Zulueta for that is to be accused of dealing in slaves, or shipping

goods to dealers in slaves? There is nothing of the kind, as far as

regards that part of the evidence, relating to the character of the

place, or as relating to the character of the parties there. My answer

to that is, that, however well known to Captain Denman and Captain Hill,

it was unknown to Pedro de Zulueta; that he neither knew the place nor

the persons, but that there was such a place to which his house had,

without a suspicion, shipped considerable quantities of goods for their

foreign correspondents--and it would be hard and cruel to say, that

because other people possess a knowledge that he does not, he is to be

charged as a felon--because he did not know what other parties, who had

passed the latter part of their lives upon the spot, knew.

But, Gentlemen, a great deal has been said upon the mode in which this

was to be carried into effect; and they say, because this vessel was

bought really by Martinez & Co., and with their money--but Captain

Jennings was made the captain, and Captain Jennings was made the

apparent owner; therefore, that is a mark of suspicion, that is a

concealment, that is putting a false colour upon the transaction--and

therefore you are to infer that the transaction was with some guilty

intent with respect to the slave trade. Upon that, in the first

instance, I would say, this is not an indictment against Mr. Zulueta for

putting an English captain on board a foreign ship, and treating it as

an English ship--such a proceeding is not, that I am aware of, contrary

to the law at all; and it can only be important in this case, if the

nature of the transaction is such as necessarily to lead you to infer

that the object of the transaction was connected with the slave trade.

Now, let me try that in all its parts; let us see if there is any thing

in the mode in which the transaction was carried into effect, which

ought fairly to lead a Jury to infer that the object in sending the

vessel to Africa was that it should be engaged in the slave trade.

First, as to the English captain--I had some difficulty in getting the

facts out--it is always desirable, when the Jury have some experience in

the matter, for the ends of justice--I hope you may be some of you

familiar with Spanish maritime transactions: but we have the notary of

the Spanish consulate, before whom charter-parties and other maritime

documents come, and we have had the judgment of a naval officer upon the

spot, and their evidence goes to show, that by the maritime laws of

Spain, a Spanish vessel cannot be commanded by an English captain. Then,

if Messrs. Martinez & Co. wished to ship these goods to the coast of

Africa from England, and they wished at the same time to employ Captain

Jennings as the captain, how are they to do it, except by giving an

English name to the vessel, putting it under English colours, and making

Captain Jennings the apparent owner? And, Gentlemen, is that to be

wondered at? Is the character of a British sailor so low, that there is

any thing upon which you are to suspect a man of felony, because one of

his foreign correspondents prefers that a vessel he is going to freight

to Africa should be commanded by an Englishman and not a Spaniard? You

will find, from the evidence, that Captain Jennings had been more than

once employed by Martinez & Co.--there is no doubt he is a man of

considerable experience; he is a man of considerable courage, as all

English sailors are--and explained in that way, what more natural than

that Martinez & Co., hearing he was in England, should wish that a man

they could trust should be employed in bringing out a cargo of goods to

Africa, or wherever it was? Therefore it was he would employ Captain

Jennings. How was he to do it? If the vessel was their own, it must sail

under the Spanish flag, it would be a Spanish vessel, and could not be

commanded by an English captain; so, to obtain that object, they

employed Captain Jennings, whom they thought a trustworthy person--and

in order to employ him, he is obliged to make the vessel appear an

English vessel, and make him appear as the owner of the vessel--and this

arrangement is accordingly made. And, Gentlemen, let me observe, though

it was not given in evidence--but I will not stand upon technical

points, I am dealing with the character of a house as high as any in

Britain; I believe their Lordships, after some argument, excluded the

bill of lading, in which the name of Captain Jennings appeared as the

shipper--I do not know how it is--suppose he appeared--

Mr. Justice _Maule_. He appeared so in the cockets.