Part 3

As explaining the practical operation of the law, then, I shall look upon the summing up of the learned Judge, not with a critical eye, in order to decide whether the law has been well or ill administered--this is the province of a professional man, into which it would be preposterous for me to enter. Upon the propriety or impropriety of the Judge’s acts and opinions, or even of his exposition of the law and its requirements, I must be understood as maintaining a complete reserve. For the present purpose, and for every practical purpose that can affect others, the law must be taken as laid down by his Lordship. As to its meaning, the evidence which is required under the Act to bring an individual to trial, the degree of evidence which will send a case to the Jury, that upon which a case in answer shall be demanded of the accused--until it is otherwise declared by competent authority--until then, those who really wish to obey the law must look upon the late administration of it as that which is to be expected, and the extent and applicability of the Act of Parliament to be that which is exhibited in the late proceedings.

The first consideration which presents itself is the nature and definition of the offence. In the outset of his summing up, the learned Judge stating the nature of the charge, alluding to the vessel which the prisoner is alleged to have employed, lays down, “that it was not necessary to be proved that the ship in question (the Augusta) was intended to be used for the conveyance of slaves from the coast of Africa. If there was a slave adventure--if there was an adventure, of which the object was that slaves should be brought from the coast of Africa, that there should be slave trading there--and if this vessel was dispatched and employed for the purpose of accomplishing that object, although it was intended to accomplish that object otherwise than by bringing home the slaves in that vessel--that is within the Act of Parliament. So, if the goods were loaded for the purpose of accomplishing the slave trade ... the crime charged in this indictment would be committed, the allegations in the indictment would be supported, and the prohibition of the Act of Parliament would be violated.”

Such is the nature of the offence. If there is a slave adventure in the port of destination of the vessel and goods which you dispatch, for the purpose of accomplishing which they may be said to have been intended, the prohibition is violated; but as, in the case of the vessel and the goods in question, no attempt was even made to prove the existence of any such adventure, but only a general slaving character of the port of destination, it follows that not even the existence of such particular slave adventure is necessary to be proved in order to support an indictment under the Act, but it is enough if a general slaving character of the trade at the port of destination is proved, in order to lay the ground of an indictment. Let this general slave trading character be discovered by any one of a port in Africa, to which you may have sent goods--and of course, if a port not in Africa is (as may very well be) largely concerned in the trade, the case is not very much altered--and you stand open to a charge under the Act, for the crime has been committed. It is as when a man is found murdered in the street--the crime has been committed--the only thing is to find out the criminal. How this is done under the Act of Parliament on the slave trade is the next thing to be seen.

“The employment, the dispatch of the vessel,” says the learned Judge, “is no conclusive proof of the guilt, till going further, and showing that the party doing so did it for the illegal purpose charged.” But then, for the purpose of beginning the inquiry, without which there would have been no beginning of it, the foundation must be laid in the employment of the vessel by the person accused. If slave trading is intended, and the vessel be sent for the purpose, the important consideration then is, whether the person employing the vessel is cognizant of the intention. We have seen the large meaning of the terms slave trading. It is not like wine trade--dealing in wine: it is not dealing in slaves, but dealing in Manchester and Birmingham goods, adapted and purposely manufactured for the African markets, so long as it is found that slave traders, that is, as heretofore the term has been understood, dealers in slaves--resort to the port for which they are shipped. Of course the crime having been committed by some one, that is, by the person who intended that slave traders should use them for slave purposes--and no other will be supposed as possible--the existence of the law punishing such an intention demands that an inquiry should be made. For this purpose the commission-agent in England, who employed the vessel, must be laid hold of--not that in that one act there is a conclusive proof of guilt, until it be further shown that he was cognizant of and intended the illegal object, but because an inquiry is imperative under the Act. With whom the right and duty of making it rests it matters not--any one that may be so disposed from a philanthropic and public-spirited motive. It is not enough that a Parliamentary inquiry has been made already--it is not enough that the law-officers of the Crown see no reason to institute a further inquiry--it matters not, if the case has been lying in all its details before the public, the ends of public justice are never satisfied until the so-called inquiry takes the shape of a bill before the Grand Jury--_the inquisition_ of the country. There certain depositions are secretly made upon oath, which you shall never see; and upon this _mild_ and _fair_ procedure you will have your very life, and the life of every one dear to you placed in jeopardy, for I believe that there is nothing in the mercantile profession which is likely to prepare a man, and a man’s family, for his being treated as a felon. It is indeed true, that in the evidence before the Committee of the House of Commons merchants are treated by some of the witnesses in a tone and manner becoming only those times in which merchants were tolerated for the sake of the money that might be extorted from them, but otherwise were considered as a caste whose instinct was money-making by all means, right or wrong, and against whom every crime might be presumed; but, whatever may be in the heart of some, and whatever may rise to their lips, against a profession which England honours and distinguishes, a distinct avowal dare not be made such as will justify the insinuation that there is absolutely nothing in carrying a merchant, considered respectable, from his private office to a felon’s den, without his knowing his accuser, or upon what he is charged, which ought to shake his mind or that of his family.

But, then, unless you are proved to have been cognizant of the intended purpose, you will be acquitted. The nature of the offence has been explained and laid down to embrace a very wide compass. If there existed a slave adventure at the port of destination of a vessel, to accomplish which that vessel carried goods, the offence has been committed. The penalty, to whomsoever committed it, is by the Act only short of the greatest imposed by the law. You employed the vessel--this is not conclusive of guilt, until it is shown further that there was slave trading intended, and that you were cognizant of the intention. Let us see how both things are to be proved and brought home to you. Heretofore the way between your office and the Old Bailey is one which there is no merchant, trading with countries wherein the slave trade is allowed to exist, may not be dragged through without risk or responsibility by any ruffian in London. Now, perhaps, though not exactly at the earliest stage that may be desirable for the safety of the innocent and the repose of honourable families--still now, perhaps, the requirements of the law in regard to proof are commensurate with the facility afforded on the outset, and with the terrible penalty which follows a conviction.

The Judge proceeds upon this part of the evidence as follows: “It appears from the evidence, that the Gallinas is a place described by some witnesses of great experience--two captains in the navy, and Colonel Nichol, who was the governor of a district in the neighbourhood” (about 1,500 miles from it, see his evidence), “whose employment was mainly to watch the slave coast, of which the Gallinas forms a part, and to contribute to the putting down the slave trade--that the Gallinas is a place of slave trading, and of no other trade at all.” His Lordship continues as follows: “It is said, and I think with great probability, that the Gallinas is not generally known as a slave trading place, in fact, it seems very little known at all; it seems to be a place where any other description of felons may resort to concert their schemes and hide their stolen goods, and which, of course, they do not make public, and which is not likely to be known by honest and true people. Except those employed as police or otherwise in aid of justice, as these captains were, of course it would not be spoken of at all. There might be slave traders in London knowing it very well, but they would be perfectly silent probably, and hardly mention it by name even in speaking one to another. It is very probable, therefore, that the place was not very well known; that when these persons spoke of the Gallinas, they might say the Gallinas on the coast of Africa; and a person might be very conversant with the geography of Africa in an honest way, who had not been active in putting down the slave trade, and yet might not know where it was, except that it was on the coast of Africa.”

It is impossible more correctly to state, in stronger language, or more clearly, the possibility of the place of destination of a vessel being a slave trading place, and that exclusively, without in the least diminishing the great probability of its being unknown to the party in England who ships goods for that place as a commission-agent, by order and for account of somebody else abroad. Thus, the great probability of my statement before the Committee of the House of Commons of the ignorance of the character of the trade carried on at Gallinas was completely vouched for, and the observation, that those who knew were not likely to tell, and not likely to as much as name the place, was forcible in my favour, since the house had entered and cleared the Augusta _for Gallinas_, and not for _Africa_, as ships with destinations for the West Coast are generally dispatched, and as the Augusta might most certainly have been, had the house even suspected an improper object which required concealment. It is singular that, in the explanations prepared for instructing counsel, the case is stated in nearly the same terms as to the ignorance of the character of the place, as those used by Judge Maule. Merchants easily understand this, because it is the case more or less with every one. In shipping goods by foreign order and for foreign account to distant ports in all parts of the world, with which there is hardly any communication, and with which the shipper himself has none, and need not have any for the purpose of such a transaction, it most frequently happens, that the nature of the trade carried on at that particular port is very imperfectly or rather not at all known. In the multitude and the rapidity of operations which must be disposed of almost without thinking, the inquiry (not being either interesting or profitable, and of course quite unnecessary) is not made, or indeed as much as thought of, especially when heretofore, I believe, it will be acknowledged that it has not been considered that the nature of the trade carried on at any place could involve the mere shipper, without a connexion or any interest in that place, in the slightest responsibility.

But what follows? The character of the place is thus settled: “That it is itself a slave trading place appears to be very evident from the case on the part of the prosecution. Probably those honest persons, those honestly dealing persons, who know best about it, are those who have been called upon by their public duty to ascertain it. Such persons have been called, and they give it this character and description, and they state that it is distinguished from other parts of the coast of Africa; for on other parts of that coast, it is said, slaves are sold as one article of export, but that other things, such as palm-oil--I believe that is the principal thing--and ivory, and wood, and other things, are sold in immense quantities on the coast of Africa; but that that is not the case at the Gallinas. They might be carrying out goods to other parts of Africa, intending to bring home palm-oil, or slaves, as might be most profitable; they might intend to bring home an honest commodity, and not have to do with this dishonest and perilous commodity; but it appears difficult to conceive what a person, carrying a cargo of goods to the Gallinas, could intend to do with it, unless he intended to have those goods employed in the slave trade. The prisoner might say they were to be employed by others in the slave trade; that would be plain and simple: it is wrong, but it is a plain and simple account of that which was intended to be done. It is a place, as it appears, without any trade; and if there be an obvious plain interest in a person carrying goods to that place, it appears to me that it may be taken that they were for the purpose of the slave trade. If that be the plain and obvious inference, it appears to me that might be the inference very properly drawn by Colonel Nichol, that this was a slave adventure, unless the contrary were proved.” Here the character of the place seems the only point upon which the observations of the learned Judge bear; and that character having been laid down as very probably indeed unknown to any one but the dealer in slaves, and the police employed against them, they do not seem to touch the prisoner. But at the same time an answer is suggested which the prisoner might give about what was intended, thus seeming to imply, that he ought to be furnished with evidence in answer, capable of accounting for what was intended, without which the full weight of an inference by one of the witnesses must remain, so far attaching to him the knowledge that he must necessarily be supposed to entertain of what was intended by others. I had said before the Committee, in the evidence read in Court, that the house knew nothing of what was to be done with the goods. Therefore, this not being admitted, it seems to follow that the law, as laid down by Judge Maule, requires some plain and simple account of what was intended to be done with the goods from the commission-agent in England who ships them by order and for account of a merchant residing abroad. It had before been laid down, that to ship the goods for slave trade purposes is an offence under the Act, if the shipper was cognizant of the intent: it is now said, that the port is an exclusively slave trading port, and it is not suggested that this was probably unknown, as it had before been said, to any but the dealer in slaves and the police employed against them, nor any account taken of the statement of the accused before the House of Commons, which had been read in Court, disclaiming the very possibility, as a mere shipping-agent, of any knowledge of what was to be done with the goods: the only answer suggested is one which may give a plain and simple account of what the merchant abroad intended to do with the goods at such a port. It seems to follow, therefore, that the mere shipping-agent in England is bound by the Act to be provided with such an account; and if he does not give it, the inference, to be drawn as to the object of the shipment from the character of the port, will not only attach to the adventure, but will cut deeper, since if you are bound to have and to produce a knowledge, and you do not produce it, it seems that the account is to be held not to be producible.

The notion that the Act of Parliament must be understood, not only as punishing a proved guilty knowledge, but as demanding from the accused party proof of an innocent knowledge of the plans and objects of a foreign merchant residing abroad, in respect of a transaction, in which the former has had no other share than that of a simple shipping agency in England, by order and for account of the latter, pervades the whole of the proceedings, and shows itself more clearly in the remarks that follow. “It is possible,” continues the Judge, “that this might be an adventure, not slave trading; if so, nothing can be more simple than to prove it: Martinez & Co. might prove that it is an honest adventure. If it was a dishonest adventure, it could not be expected that Martinez & Co. should be called to give evidence at all; but if it were an innocent adventure, it would be very easy for them to be called. It is true that persons are to be convicted, not by evidence they did not produce, but by evidence produced against them--not on suspicion, but on conviction; but where such evidence is offered of the trade being slave trading, as is offered here, namely, that the vessel was loaded with goods” (in itself, as the learned Judge had formerly stated, not conclusive of guilt)--“that a cargo of goods was dispatched” (to which the same former observation applies) “to a place, where slave trading is the only known object for which vessels _ever_ go” (known to slave traders and the police employed against them, as was also aptly remarked by his Lordship; although one of these, Captain Denman, seems to have known of 800 tons, according to his evidence (see p. 329); and upwards of 1,000 tons, according to his official dispatch to the Governor of Sierra Leone, dated 12th December, 1840[2], as having been landed at Gallinas, without being able to say that the object was slave trading)--“a slave-mart and nothing but a slave-mart--you have a case, though it is an answerable case; but if the answer, which if it exist could be easily given, is not given, it may very fairly be inferred that the vessel was proceeding on a slaving voyage, a voyage either for the purpose of bringing home slaves, or of landing those goods for the purchase of slaves.”

[2] Vide “Report. West Coast of Africa. Part II, Appendix,” &c. p. 460.

The learned Judge is still upon the point of the nature of the adventure, as indicated by the nature of the trade said to prevail at Gallinas; and as in the former observations, since the name of Gallinas has been laid down as probably conveying no information to any but slave dealers and the slave police, the prisoner seems to remain untouched. But then it is laid down that an answer, which of course somewhere must exist, could be easily given by the accused. How so? but that the law, this special Act of Parliament, must be so understood as to require the simple shipping-agent in England to prepare himself with a full knowledge of the plans and the objects of the foreign merchant abroad, who orders certain goods to be purchased and shipped for his account. The learned Judge has not lost sight that in the universal practice of law, a conviction is only justifiable by evidence produced--that is, produced against, not by that which the accused party does not produce: but he feels it his duty, under the Act of Parliament he was expounding, to warn the Jury that the case is not so to be treated; for the operation of that Act, when to be applied to a commission-agent in this country, shipping goods to a place about which such evidence is offered as that it is a slave-mart, and a slave-mart only, even although the knowledge of that fact has been previously stated to be most probably confined to dealers in slaves, and the police employed against them, upon whose testimony alone it stood before the Court--in such a case, when dealing with the 5th Geo. IV, the _onus probandi_ lies with the accused. In the course of mercantile transactions, the commission-agent, who buys and ships goods by order and for account of a foreign merchant residing abroad, and to a port with which the former has no intercourse of trade whatever, would not be supposed nor could be expected to possess any further knowledge than that necessary to complete, in England, his own part of the transaction; but not so for the purposes of the Act in question. The reasoning seems to be this: here is a law which makes a certain knowledge guilty, if the object of the party abroad, originating the transaction be in deed and in fact a guilty one. In order to give force and strength to the operation of this law, it must be so laid down as to render necessary some knowledge of either an innocent or of a guilty nature, in the party residing in England, of the plans and objects of the party abroad by whose order and for whose account he has shipped goods to the port indicated to him. This or that knowledge must exist in the agent: he must be called upon to produce even the very foreign merchant himself, over whom the Court can give the accused no control, over whom he himself is not shown to possess any, and whose testimony after all could not be trusted; since that of the accused, as recorded before the Committee, is not. If in this, or in some other way, he does not prove knowledge of an innocent object, the object must be taken to be a guilty one; and as the law must be understood to require a knowledge, and he shows no innocent knowledge, the inference remains of a guilty knowledge: from which it seems evident that shipping agency business cannot be safely undertaken, as has been heretofore done, at least for merchants residing in countries in which slave dealing still exists, not only in Africa, but Cuba, Brazils, the United States, and other places. But merchants in England are required to master the whole object and plan of their correspondents abroad; and that the sincerity of his endeavours will be measured only by the result, is what common prudence will teach a man to expect from the machinery which is set on foot in order to apply to this Act of Parliament that notable remark, that _who wills the end wills the means_.