Part 36

Pedro de Zulueta the younger, of No. 22, Moorgate Street, in the City of London, merchant, and John Lawford, of Drapers Hall, in the said city, gentleman, attorney to the said Pedro de Zulueta, severally make oath and say,--And first, this deponent, Pedro de Zulueta the younger, for himself saith, that the above mentioned indictments are preferred against this deponent, and against one Thomas Jennings, mariner, and one Thomas Bernardos, mariner, the first mentioned of such indictments being for illegally and feloniously manning, navigating, equipping, dispatching, using, and employing a certain ship or vessel called the “Augusta,” in order to accomplish a certain object, which in and by a certain Act of Parliament, made and passed in the 5th year of the reign of his late Majesty King George the Fourth, intituled “An Act to amend and consolidate the Laws relating to the Abolition of the Slave Trade,” was and is declared unlawful; and the last mentioned of such indictments for conspiring to do, &c. And this deponent saith, that he was taken into custody on the 23rd day of August last in consequence of the said indictments having been found against him. And this deponent saith, that upon his being so taken into custody and brought to the Central Criminal Court then sitting, the Recorder of London then presiding as judge of the said Court, ordered that he this deponent should be admitted to bail himself in 3,000_l._, with two sureties in the sum of 1,000_l._ each, to take his trial upon the said indictments; and that he thereupon pleaded “Not Guilty” to the said indictments, and entered into the said recognizances. And this deponent further saith, that when he was so taken into custody he was altogether ignorant that any proceedings whatever had been or were about to be taken against him in reference to the said ship, or to the offence charged by the said indictments (there having been no previous examination or inquiry before any magistrate in reference to the said charges), and that he was then, as he is now, altogether ignorant of the evidence upon which such indictments were found, excepting that this deponent has been informed that the charges contained in these indictments arise out of transactions in respect of which this deponent was examined in the year 1842 before a Committee of the Honourable the House of Commons. And this deponent further saith, that Joseph Toplis, who was the managing clerk of this deponent’s house of business at Liverpool at the time of the transactions in question, was and is a most material witness for this deponent, and most essential to enable this deponent to prepare his defence to these indictments. And this deponent saith, that at the time when these indictments were preferred the said Joseph Toplis was at Gibraltar. And this deponent saith, that on Saturday the 26th day of August last, being the third day after the said indictments were preferred, and being the first possible opportunity which this deponent had of communicating with the said Joseph Toplis, this deponent’s house of business wrote and sent a letter to him the said Joseph Toplis, requiring him to repair to England immediately, as well for the purpose of giving his evidence on the trial of these indictments as in order that the said Joseph Toplis might enable this deponent to procure such other necessary evidence for the defence of this deponent, as the knowledge of the said Joseph Toplis in relation to the transaction out of which these indictments arise might enable him to obtain. And this deponent, John Lawford, for himself saith, that in consequence of the absence of the said Joseph Toplis, and in consequence of this deponent’s belief that the said Joseph Toplis could not arrive in time to enable this deponent to prepare for the trial of these indictments, this deponent, under the advice of counsel, wrote and sent a letter to Sir George Stephen, the attorney for the prosecution, in the words and figures following:--

THE QUEEN _v._ ZULUETA.

Dear Sir,

Drapers Hall, 11th September, 1843.

You will probably not be surprised to hear that it will require considerable time to collect and prepare the materials for Mr. Zulueta’s defence, and you will therefore be pleased to consider this as a notice of our intention to apply to the Court for a postponement of the trial. We think it right thus early to inform you of our intention, that neither you nor your witnesses may be put to unnecessary expense or inconvenience, and we anticipate no objection on your part to a proceeding so manifestly reasonable.

We are, dear Sir,

Your very obedient servants,

Sir George Stephen.

(signed)

_Ed. Jno. & H. S. Lawford_.

And this deponent saith, that in reply to such letter, this deponent received a letter from the said Sir George Stephen, in the words and figures following:--

THE QUEEN, _v._ ZULUETA.

Collins, 12th September, 1843.

Prince’s Risborough.

My dear Sirs,

Personally I should have no objection to deferring the trial, and so far as your own convenience is involved in the delay, it would give me much pleasure to consult it. But this is a case in which I feel restrained from exercising the least discretion, and must therefore leave the matter to the decision of the Court. My briefs are delivered, and, with one exception, my witnesses are subpœnaed; but that exception is the most expensive, and therefore to save you that expense, I will not subpœna him until Monday, if you will write me word that you will consent to the trial being at all events deferred till Thursday. I put it thus, because I apprehend that the Court will only accede to your application on terms of your paying the costs of the day. Have the goodness to address your answer to me here.

Yours very truly,

Messrs. Lawford, Drapers Hall.

_George Stephen_.

And this deponent, Pedro de Zulueta the younger, further saith that the said Joseph Toplis, in consequence of the aforesaid requisition on the part of this deponent, came away from Gibraltar forthwith, and arrived in London on Sunday evening last, the 17th day of September instant. And this deponent further saith, that it will be absolutely necessary for the said Joseph Toplis to repair to Liverpool for the purpose of procuring the attendance of divers persons who are necessary witnesses on behalf of this deponent, who are not known to this deponent, and whose names this deponent had not the means of procuring until he had communicated with the said Joseph Toplis. And this deponent saith, that by reason of the shortness of the time since the arrival of the said Joseph Toplis, and the necessity of his repairing to Liverpool and elsewhere, to seek for and procure the necessary evidence in support of the defence of this deponent, it will be impossible for this deponent to be prepared with such evidence in time for the present session. And this deponent, John Lawford, for himself saith, that he has been retained as the attorney of the said defendant, and that he has diligently applied himself to the preparation of the defendant’s case, and that he is advised by counsel, and verily believes that it will be absolutely necessary for this deponent to procure the attendance of the witnesses above referred to, and of others who he is informed and believes are resident at Manchester, Liverpool, and Glasgow, and also of some of the crew of the said ship Augusta. And this deponent saith, that he has been informed and believes that the defendant, Thomas Jennings, has been already tried for this offence at Sierra Leone, and acquitted thereof. And this deponent saith, that he has reason to believe that it may be necessary to procure the attendance of witnesses from that settlement as well as from Spain, and other distant places. And this deponent saith, that by reason of the shortness of the time which has elapsed since the said indictments were preferred, and by reason of the entire ignorance of this deponent of the evidence against the defendant, Pedro de Zulueta the younger, it has been utterly impossible for this deponent to complete the preparations for the defence in time for the present sessions. And this deponent further saith, that from the time of the said bills being found to the present time this deponent hath been in constant communication with the said other deponent with a view to his defence, and that no time whatever has been lost in preparing for such defence; but this deponent saith, that by the reason of the circumstances hereinbefore stated this deponent hath been wholly unable to prepare the brief for the defence.

(signed) _Pedro de Zulueta._ _John Lawford._

Sworn in Court, 19th September, 1843.

Mr. Serjeant _Bompas_. Your Lordships will probably wish to hear the affidavit in answer, before I make any observations upon that which has just been read.

Mr. Justice _Cresswell_. Have you a copy of it?

Mr. _Payne_. Yes, my Lord.

[_A copy of the affidavit was handed to his Lordship._]

_The affidavit was then read by the Clerk of the Arraigns as follows_:--

In the Central Criminal Court.

The Queen, } _v._ } FOR FELONY. Pedro de Zulueta, and others. }

The same, } _v._ } FOR MISDEMEANOR. The same. }

Henry Worsley Hill, of Great Rider Street, in the parish of St. James, Esquire, a Commander in Her Majesty’s Navy, and Sir George Stephen, of King’s Arms Yard, in the city of London, the solicitor for the prosecution, severally make oath and say,--And first, the said Henry Worsley Hill for himself saith, that he is under orders to proceed to the Gold Coast on the western coast of Africa, to assume the government thereof with the least possible delay, and that arrangements are now in progress for this deponent to depart by the end of this present month. And this deponent also saith, that the public service will sustain considerable inconvenience by any delay on the part of this deponent in proceeding to Africa as aforesaid at the time now appointed, and that he this deponent has no expectation or hope of obtaining further leave of absence. And this deponent, Sir George Stephen, for himself saith, that the said Henry Worsley Hill is a most material witness on behalf of this prosecution, and that without his evidence this deponent cannot safely proceed to trial; and this deponent, Sir George Stephen, further saith, that he has perused a copy of the affidavit of Pedro de Zulueta the younger, and John Lawford, made in these matters, and that in consequence of the misdirection of the same, as this deponent believes, he, this deponent, did not receive a reply to his letter of the 12th of September, 1843, set out in the said affidavit, and therefore proceeded in his preparations for trial. And this deponent saith, that he is ready to proceed to trial at the present session of this Court. And this deponent further saith, that he has caused another witness in this matter to come over from Paris, where such witness is permanently domiciled, and that such last mentioned witness incurred much inconvenience and expense in so coming, and that as he habitually resides out of the jurisdiction this deponent has no means of compelling him to appear again, should the trial of these indictments be deferred. And this deponent saith, that the evidence of such last-mentioned witness is most material. And this deponent further saith, that he has subpœnaed three other witnesses to come to London from a great distance, one of whom is a sailor, and another of whom is an officer of rank in Her Majesty’s navy, and that the evidence of all the said last mentioned witnesses is most material, and that the said indictments cannot be safely tried in their absence, but that from the nautical profession of two of them, this deponent believes it to be very doubtful if he will again be able to compel their attendance. And this deponent further saith, that he has also subpœnaed another witness who habitually resides at Seville in Spain, and who is about to return to Seville, as this deponent is informed and believes as soon as the trial is over, and this deponent is informed and believes that the evidence of such last mentioned witness is material. And deponent saith, that he has no hope of again collecting together so many important witnesses whose professional avocations necessarily render their simultaneous presence in this country very uncertain. And this deponent further saith, that the said defendant, Pedro de Zulueta the younger, cannot have been taken by surprise by these indictments, because the said Pedro de Zulueta the younger, volunteered, as this deponent is informed and believes, to be examined as a witness before the Select Committee on the West Coast of Africa, and was so examined on the 22nd and 23rd days of July, 1843, when the nature of the case upon which this prosecution is founded was stated to the Committee, and the said Pedro de Zulueta admitted that he had received copies of the evidence given by Captain Hill on the 29th of June, the 4th of July, and the 6th of July previously. And this deponent saith, that the said Pedro de Zulueta the younger, did upon such examination admit that the house to which he belongs had been charged with criminality, and with having for a length of time been agents to slave dealers, and the said Pedro de Zulueta the younger avowed his reason for wishing to be examined before the Committee to be, that the statements contained in the said evidence were incorrect. And this deponent lastly saith, that in another part of such examination, the said Pedro de Zulueta the younger, in answer to the question, “Is there any other part of the evidence which has been given that you wish to observe upon?” after denying all knowledge of a person of the name of Kidd, adds, “With regard to my partners, I can say the same. I have been making inquiries about it; my father knew there was such a man, but I did not know even that, though I have managed all this business.”

(signed)

_H. W. Hill._

_George Stephen._

Mr. Serjeant _Bompas_. My learned friend, Mr. Clarkson, has called upon me to make some observations upon this affidavit. I should not in addressing your Lordships at all wish to object to the postponement of this trial, if it could be considered even by the defendant or his counsel more advantageous to him that it should be postponed, could I consent to it without feeling that the trial could not fairly take place at any other period. I cannot help thinking, while your Lordship is looking at this affidavit, that it is one such as has been rarely produced before a Court, in order to found an application for the postponement of a trial. This indictment was preferred above a month from this time; that is, four weeks from this time. It is true, as has been stated, that no inquiry took place before a magistrate, but when long before that period at which the inquiry could have been instituted, if such had taken place, this matter had been inquired into before a Committee of the House of Commons, when Mr. Zulueta appeared before that Committee, and stated that he had had the management of all the business, and appeared in order to explain the transaction--

Mr. _Clarkson_. No.

Mr. Serjeant _Bompas_. I will refer to the words of the affidavit.

Mr. _Clarkson_. I beg pardon.

Mr. Serjeant _Bompas_. When it appears that that inquiry had taken place before a Committee of the House of Commons, this proceeding cannot have been instituted without ample notice of all that is to be now inquired into, as far as any party, under the circumstances, charged with felony, can be supposed to know the nature of the evidence to be brought against him. And what is the foundation of this application? Not that some material witness is absent--some material witness whom they have subpœnaed, and whom they know to be material, and whose attendance they cannot obtain; that is not the foundation of the application. The ground of the application is, that a person of the name of Toplis, who was managing clerk to Mr. Zulueta, was absent at Gibraltar, at the time the indictment was found. It is not even that he has not arrived: he arrived on Sunday and is now able to give any evidence that the defendant may require. It is said, that he is able to make communications in respect to the evidence of persons, whose names were not known to the defendant till he arrived, and upon whose absence the application was founded, and that it is now requisite to send for some witnesses from Liverpool, and I hardly know where. The affidavit is very singularly sworn; and when my learned friend says, “from Spain,” and so on, there is no such statement to be found in it. That which is stated is, that it _may_ be necessary to send for various witnesses, that it _may_ be necessary to procure the attendance of witnesses from the settlement of Sierra Leone, as well as from Spain. My learned friend, in citing it, said, that they were to obtain witnesses “from Spain.” The affidavit is, that it _may_ be necessary to have witnesses from Spain--that it _may_ be necessary to have witnesses from Africa, so that there is no statement whatever that there is any witness in Spain who would be wanted or can be expected, or that there is any witness in Africa who will be wanted or who is expected; there is no such statement at all. The statement is, “That it will be absolutely necessary for the said Joseph Toplis to repair to Liverpool for the purpose of procuring the attendance of divers persons, who are necessary witnesses on behalf of this deponent, who are not known to this deponent, and whose names this deponent had not the means of procuring until he had communicated with the said Joseph Toplis.” Certainly that is a statement of a very extraordinary kind: no doubt it was put into the affidavit, believing it to be true, but the statement made by Mr. Zulueta before the Committee of the House of Commons was, that he had had the management of the whole of the business; and to suppose that there is a witness in Spain, that there is a witness in Gibraltar, Mr. Toplis, and that they can make no inquiry as to the names of the individuals till he comes over, is the most extraordinary statement ever laid before a Court. As far as this affidavit goes, it does not appear that they have taken the slightest steps in order to ascertain by any inquiry as to any witnesses or any transactions; but Mr. Toplis is to go to Liverpool to hunt out for witnesses. Who they are does not appear: not any persons who are certain to be witnesses, but that he is to go to Liverpool to hunt out for witnesses who may be--

Mr. Justice _Cresswell_. And whose names the deponent could not procure till Mr. Toplis came.

Mr. Serjeant _Bompas_. “And whose names this deponent had not the means of procuring until he had communicated with the said Joseph Toplis.” He could hot tell certainly who Joseph Toplis would require till he had communicated with him; but that he could not have ascertained whether any witnesses were necessary for his defence would not appear satisfactorily to your Lordships. It is a case that will require examination by the Court, in order to do that which would be the object of the Court, to have the case most fairly and properly inquired into. Your Lordships see of necessity that the witnesses for the prosecution are witnesses in a situation not easy to be obtained upon any future occasion. There is one who is under orders to proceed abroad in order to take the government of the Gold Coast: there are others who are officers in the navy.

Mr. Justice _Erskine_. What was the date of the inquiry before the House of Commons?

Mr. Serjeant _Bompas_. 1842, my Lord.

Mr. Justice _Erskine_. Your affidavit states 1843.

Mr. Serjeant _Bompas_. It is a mistake, my Lord. It should be 1842.

Mr. Justice _Erskine_. Subsequently to that inquiry was any notice given to the defendant that it would be made the subject of a prosecution?

Mr. Serjeant _Bompas_. No notice, my Lord, till the bill was found.

Mr. Justice _Erskine_. What was the date of the transaction to which the indictment refers?

Mr. Serjeant _Bompas_. There was then an appeal pending before the Privy Council.

Mr. Justice _Erskine_. What was the date of the transaction to which the indictment refers? I want the date of the occurrence.

Mr. Serjeant _Bompas_. 1840; the end of 1840 and the beginning of 1841. The capture of the vessel, to which reference was made, was in February, 1841. She left England on the 9th of November, 1840. She was captured: there was a proceeding in the court abroad; she was condemned, and there was an appeal before the Privy Council.

Mr. Justice _Cresswell_. The ship sailed from Liverpool?

Mr. Serjeant _Bompas_. Yes, my Lord.

Mr. Justice _Erskine_. With a cargo of some sort. One question will be, whether it was a cargo adapted to the trade upon the African coast, or for dealing in slaves.

Mr. Serjeant _Bompas_. No doubt.

Mr. Justice _Erskine_. Was Mr. Toplis the managing clerk at Liverpool?

Mr. Serjeant _Bompas_. Yes, my Lord. It is stated that he was the managing clerk at Liverpool; but to suppose that the shipment of any firm at Liverpool to say that they can obtain no evidence of that shipment except by a managing clerk, is such a statement as can hardly be credited of any merchant. That is the statement; but they do not state any circumstances to explain it. That it is necessary to have his managing clerk to state the names of the parties concerned in the shipment, it is one of the most extraordinary statements ever made. Upon this statement your Lordships will have to consider the foundation of the application, and your Lordships will take into view all the circumstances of it. This case is to be proved, as it must necessarily be, by various officers in the navy besides Captain Hill, who is about to go out as governor of the Gold Coast; by officers in the navy, and sailors, and foreigners, now here ready to give their testimony.

Now, my Lord, there is one circumstance singularly deficient in this case, and without which there has never been a case in which the trial of any cause has been put off. The affidavit does not give the slightest suggestion when they are likely to be ready to take their trial; so that it is utterly impossible that the trial can be available, if they are to come when the witnesses for the prosecution may be scattered over the whole world: the prosecution may be gone through, but it would be a mere formal statement. I am willing to give due weight to every argument on behalf of a person charged with an offence, in order that the charge may be fairly and properly tried in respect to him; but at the same time there are duties on behalf of the prosecution. The crime cannot be inquired into unless there are the means to procure the evidence. If these witnesses are here, and this party has not taken the means which he might have done to have the trial now take place, and if he does not give us the slightest information when it is to be tried; if a person charged with an offence is to choose the time for trying it, every trial of this kind would be an utter abortion, because unless the witnesses for the prosecution are here it is impossible there can be a fair trial.