Part 37
Now there is not a statement, there is no pretence, why the witnesses for the defendant could not have been here at the present time. To say that there were no means of knowing the general nature of the charge, and knowing the whole substance of the defence, and having the whole matter fairly considered and put into form before the Court, is what you cannot believe. Your Lordships cannot believe, that though Mr. Toplis may have been an important witness, that the general subject of the charge inquired into was not generally known, and that all the witnesses for the defence, such witnesses as were thought necessary, must not have been generally known to the defendant. There may have been a witness whose name was known only to Mr. Toplis; there may have been one or more, but it is impossible that the case might not have been got up with the exception of Mr. Toplis’s evidence, and might have been ready for trial on this day. But if they have utterly neglected to take any step till last Sunday, the time as I understand it, they have no right to come now and ask your Lordships to put off the trial. There is no statement of any sort or kind of any individual witness necessary, except those suggested to be at Liverpool. Mr. Toplis could not know the witnesses abroad more than any other gentleman. Suppose there are witnesses abroad--have there been any, the slightest step taken to bring them here? What steps have been taken? He says there are witnesses from Africa: when are they to be here? when will they come? when is the trial to take place? There is not a single intimation of the time when they will be ready to take their trial. It is to be put off till the witnesses for the prosecution are scattered, and it is impossible to have the trial. Undoubtedly it is difficult to have a number of witnesses of this description ready before the Court, and to get their testimony together. But what do they say? They say that it may be necessary to get some of the sailors of the Augusta. Was Mr. Toplis necessary for that? Why have they not taken any step to get the evidence of those witnesses? They do not appear to have taken any one step to be prepared for this trial, although then knowing that it was a matter of difficulty to collect a number of witnesses like these. If it is to be held that they can at their discretion from time to time put off the case, it is a mere abortion to attempt to prosecute any person, however guilty, in the situation of Mr. Zulueta. However important it is for the defendant--and I would not wish to withhold that from the consideration of your Lordships--it is equally important for the public good, and as well worthy of your consideration. It would be with the utmost difficulty, if there is any probability of doing it at all, that the witnesses could be got together again. If they had taken every step, and gone down to inquire at Liverpool, and proceeded as far as they could and had the means in their power, and yet could not be ready, that would be some ground for the application; but they do not appear to have taken any step--they appear to have relied upon putting off the trial, considering that that would be as good a protection as any witnesses could possibly give them.
I certainly do feel that there is a ground of opposition to this application which has never failed when there is no suggestion at all in the affidavit of what time they expect to be ready for trial. I believe there has never been a case in which a party has not given the Court some reason to believe that, if the trial is put off, they will be ready to try at a given time: on the contrary, here it is put as if it was quite loose--there _may_ be some witnesses from Spain and Africa, though they have had a month during which they might have made inquiries.
I have thought it right to submit these observations to your Lordships, both for the sake of the prosecution and the defendant. If the prosecution is well founded, it is of the utmost importance that it should proceed; on the other hand, it is no doubt of importance that the other side should have an opportunity of bringing the case before the Court in all the views of which the case is capable: but the case is one in which your Lordships must see the great inconvenience to the prosecutors, and the difficulty of getting the witnesses together, and I trust your Lordships will feel that it is one which ought not to be adjourned; but if it be adjourned, it must be to some fixed time at which it must be understood that the case will come on.
Mr. _Payne_. My Lords, I will add but two or three words to what Mr. Serjeant Bompas has already addressed to your Lordships. I must say that I never in the course of my experience met with a paragraph in an affidavit to postpone a trial similar to the first paragraph in this affidavit; it is merely this, “That it will be absolutely necessary for 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.” Now it is generally required, in affidavits of this description, that if you do know the names of the witnesses, and where they are to come from, that you should state them to the Court, that the opposite side may be in possession _bonâ fide_ of the nature of the defence. If Mr. Zulueta had sworn that he did not now know the names of the witnesses, there would be some reason for not putting in the names; but he does not say that--he says he did not know them till Mr. Toplis came. Mr. Toplis came last Sunday night: he could furnish the names; and if he had put the names of the witnesses and the places they were to come from in the affidavit, instead of “divers witnesses,” it might be in the usual form upon which the Court may sometimes postpone a trial. I say that that expression is not sufficient. I say that the Court are entitled to have information of the names of the persons necessary as witnesses, in order to bring the case within the ordinary rule.
Then, my Lords, the only other part of the affidavit which has not been noticed by my learned friend, and which may be touched upon on the opposite side, is the affidavit of the attorney that he has not been able to prepare the briefs. Mr. Zulueta having stated that he was the person who managed all this business, he must have possessed information sufficient to enable the attorney in four weeks to prepare the briefs; and if he has not furnished that information, it is owing to neglect on the part of Mr. Zulueta. Their affidavit is loose and defective--ours is precise. We say we do not think we can get Captain Hill again: he states, that he is under orders to sail. Under these circumstances, we must bow to what the Court think right to decide; but we consider that a case has not been made out to justify the Court in granting this application.
Mr. _Clarkson_. My Lords, in answer--
Mr. Justice _Erskine_. You cannot ask for any further postponement beyond the next sessions.
Mr. _Clarkson_. I did not think that your Lordships would assume jurisdiction to postpone it beyond that.
Mr. Justice _Erskine_. We cannot listen to that part of the application with respect to the witnesses from Spain or Sierra Leone; they are not stated with sufficient accuracy.
Mr. _Clarkson_. I quite feel that, my Lord; I only wish to say this, that if my learned friend comes here to ask for the costs of the day, or for what my learned friend calls terms--
Mr. Justice _Erskine_. That is not necessary.
Mr. _Clarkson_. There is some mistake about it; such a thing was never heard of here: but there is this observation to be made in answer to the greater part of what my learned friends have said--for twelve months and more have these parties who are prosecuting been taking steps, and yet to this hour nobody knows who they are, no name has been furnished: for twelve months have they been about that which they now call upon a respectable merchant of London to meet in a month; and two or three years have elapsed since the vessel was condemned.
Mr. Justice _Erskine_. It is the duty of the Court to take care that the ends of justice shall not be defeated by too easily yielding to applications of this nature; but it is equally the duty of the Court to take care that a man charged with a felony shall not be brought to his trial until, he is able to present such an answer as the circumstances of the case will admit of.
It appears that the offence with which the defendant is charged is alleged to have been committed in 1840. The grounds for charging Mr. Zulueta with participation in that offence may have originated in the examinations before the Committee of the House of Commons in 1842. If it did then originate, the parties who conduct this prosecution must have known what the foundation of that accusation was, and if they intended to charge Mr. Zulueta with that offence, and particularly if they meant to support it upon the testimony of witnesses who might be absent at a future time, they ought to have taken steps by which to have secured the attendance of the defendant, and have taken him before a magistrate, and examined the witnesses there. But it appears, though this examination took place in 1842, no steps are taken in the prosecution till August 1843, and that is just upon the eve of the departure of one of the witnesses, from which circumstance the Crown, it is said, cannot avail itself of his presence, because he is going upon a public mission to some other part of the world. This is a prosecution of a singular character, and the Crown will take care that the ends of justice are not defeated by their sending away an officer whose testimony is necessary for the establishment of such a charge. I do not believe there is any risk of the ends of justice being defeated by his absence.
Then is it fair to call upon the defendant now to present himself to the Court? It appears that a person of the name of Toplis had the management of this business at Liverpool, where the circumstances are said to have originated which form the foundation of this charge; he is abroad, and from the year 1842 no notice is given.
Mr. Serjeant _Bompas_. The Privy Council did not decide.
Mr. Justice _Cresswell_. We have nothing to do with the Privy Council.
Mr. _Clarkson_. There is no decision by any body. It is no prosecution by the Crown.
Mr. Justice _Erskine_. I was not saying any thing imputing improper motives to the prosecutors, but stating facts, that no notice had been given to the defendant. If, in the year 1842, any notice had been given to Mr. Zulueta that this prosecution was to be instituted, then if he had sent Mr. Toplis abroad, he would have no right to avail himself of that circumstance; but in the absence of any notice of that sort, he had a right to assume that the evidence before the House of Commons was satisfactory, and that there was no ground to institute a prosecution, and he might then fairly send his clerk abroad. Then it appears, that, having been sent abroad, immediately the prosecution was instituted a letter was sent to him, in consequence of which he returned to this country: he only arrived on Sunday last; and it is impossible, from the state of the facts, that Mr. Zulueta could be in a state to prepare the requisite instructions for counsel, and get those witnesses necessary to enable him to proceed with his defence. We therefore think that this trial should be postponed till the next sessions. We do not yield to the necessity suggested of sending to Spain or Sierra Leone; there is no sufficient ground for that laid in the affidavit.
Mr. _Clarkson_. The form will be, that your Lordships will be pleased to respite the recognizances of Mr. Zulueta and his bail to the next sessions.
Mr. Justice _Erskine_. Yes.
(_The recognizances were enlarged, and the parties left the Court._)
TRIAL OF PEDRO DE ZULUETA, JUN., ESQ., AT THE CENTRAL CRIMINAL COURT, OLD BAILEY, ON FRIDAY, 27th OCTOBER, 1843, BEFORE The HONOURABLE Mr. JUSTICE MAULE, The HONOURABLE Mr. JUSTICE WIGHTMAN, AND Mr. COMMISSIONER BULLOCK.
_Copy from Mr. Gurney’s Short-hand Notes of the Proceedings on the Trial of this Indictment._
THE QUEEN, } _v._ } INDICTMENT FOR FELONY. PEDRO DE ZULUETA. }
Mr. _Kelly_. My Lord, with respect to Mr. Zulueta, it is very important that I should be able to communicate with him from time to time as the trial proceeds. May I ask of your Lordship some indulgence to permit him to sit near his counsel?
Mr. Justice _Maule_. What is the charge?
Mr. _Kelly_. The charge under prosecution is felony; the felony being, the fitting out a ship with certain objects declared by statute to be illegal, namely, those of slave trading.
Mr. Justice _Maule_. I should wish that Mr. Zulueta, and every one else, should have the liberty of sitting by his counsel, but that is impossible. I understand an application was made in the case of a person of the name of Trotter.
Mr. _Kelly_. It has been done; there are many precedents. I do not ask it on the ground of any difference of rank or condition, but because the justice of the case requires it, particularly as he is a foreigner, a Spaniard, and many of the documents which will have to be referred to in the course of the proceeding are in the Spanish language, that I should be enabled to communicate with him. It is not at Mr. Zulueta’s own instance I make the application, but for my own assistance in the conduct of the defence.
Mr. Justice _Wightman_. A similar application was made in the case of Captain Douglas.
Mr. _Kelly_. That was not an application by counsel for the convenience of counsel, in aid of the justice of the case, but on the ground of his being an officer in the British army. That, if granted, might establish a distinction which ought not to be established; but in the case of Horne Tooke, where it became necessary for the merits of the case that there should be a constant communication between the counsel and the prisoner, it was permitted.
Mr. Justice _Wightman_. What was the charge against him?
Mr. _Kelly_. High treason. A case, I may venture to say directly in point, except that that was a weaker case than this, for this is a case of a foreigner, a Spaniard; and, as I have observed, most of the documents to which it will be necessary from time to time to refer, are in the Spanish language, and it is impossible I can do justice to his case if I cannot communicate with the prisoner so as to understand their effect.
Mr. Justice _Maule_. Have you the 9th vol. of Carrington & Payne? The difficulty stated is, that though the prisoner cannot come to his friend, his friend may go to him.
[_The 9th vol. of Carrington & Payne’s Reports was handed to his Lordship._
[_The Witnesses on both sides were directed to leave the Court._
Mr. Justice _Maule_. Have you got the case of the King _v._ Tooke?
Mr. _Kelly_. No, I have not the book here, my Lord; but I remember the case.
(_The Report was produced._)
Mr. Justice _Maule_. In the Report in the State Trials of the case of Mr. Horne Tooke, to which you have referred, it appears that he claimed as a matter of right, the being permitted to sit near his counsel. The Lord Chief Justice says, “That is an indulgence which I have hardly ever known given to any person in your situation.” The Lord Chief Justice at that time was Lord Chief Justice Eyre. Mr. Horne Tooke says, “I am perfectly aware that it is unusual, but I beg your Lordship to observe that every thing in the course of these proceedings is likewise unusual. I beg your Lordship to consider that the proceedings upon the last trial will fill, as I am well informed by the short-hand writer, 1,600 close printed octavo pages. That trial lasted nine days; eight days trial, and one day between. The nature of the indictment is such, that it has been impossible for me to guess what would come before your Lordship: it has been equally impossible for me to instruct my counsel; they cannot know the passages of my life, and from what I have seen on the last trial the whole passages of my life, and those which are not passages of my life, but are only imputed to me, will be brought before you: how is it possible for my counsel to know those particular facts which are only known to myself? If ever there was a case where indulgence was fit to be granted, it is this; yet your Lordship will forgive me for saying that I claim it as my right by law, and do not ask it as an indulgence.” After more argument to that effect, the Chief Justice says, “Mr. Tooke, you have been furnished with that which the law considers as the necessary means to enable you to make your defence; you have had counsel assigned to you; they have had, or might have had, access to you at all seasonable hours; that is what the law allows you. You have taught the Court not to use the word indulgence, and you have pointed out to them their duty, that they are to give no indulgence. I am apprehensive that it would be considered as an extraordinary indulgence if the Court were now to do that which you ask, because that is not done to other prisoners; it was not done to another prisoner who went immediately before you, who had the same stake that you have, nor is it done to all other prisoners who do come to this bar, and therefore the Court are not permitted without doing injustice to others to grant that which you ask upon the ground upon which you ask it.” Then he goes on--“But you have mentioned another circumstance extremely material, and which will, in my mind, warrant the Court to do that which you think they ought not to do, to indulge the prisoner. You have stated the condition of your health, and that in the place in which you stand your health will suffer: the Court has no desire to put you under any difficulties; they wish that you should be enabled to make your defence in the best way imaginable; and if the situation in which you stand is really likely to be prejudicial to your health, and therefore likely to disable you from making your defence in the manner you might otherwise make it, I shall put it to my Lords to consider, whether you may not be indulged with that which you have now asked.
“Mr. Tooke--The Court will forgive me only for saying, that if, on the footing of indulgence, the Court shall not think fit to grant what I ask, I hope I shall not, after that decision, be barred from my argument upon it as a point of law.” Then the Chief Justice says--“You must state your whole case upon any matter that arises at once: the proposing it first in one shape, and then going on to state it in another, is carrying us on without end; if you mean to argue this as a point of law to be sure we are ready to hear you.” Mr. Tooke: “I beg your Lordship not to misunderstand me; I did so mention it at first, and did ask it not as an indulgence, if your Lordship will be pleased to recollect: I did mention, that if there were objections I should then argue it in point of law, thinking that I am well entitled to it by the principles, by the letter, and by the practice of the law: I did not mean to change my ground; I beg your Lordship will be pleased to recollect I excluded the idea of indulgence: I did not mean to take first one ground and then another, but I thought it possible I might save the time of the Court, therefore I left it to your Lordship to collect the sense of the Court even upon the score of health, which your Lordship mentions, to save time, and not to waste the time. I understood very well that after a decision I should not be permitted to argue it, and therefore I mentioned that, but not to change my ground; and therefore if your Lordship should find upon the score of what you call indulgence, I suppose in a different view of the word that I am accustomed to take, I rather understand that your Lordship means you are willing to grant it me upon the score of my health, in that case I do not desire to waste the time of the Court; provided it is granted to me, I am very happy and shall be glad to avoid the argument, if your Lordship will be only pleased to give me some intimation of your opinion.” The Chief Justice, after consulting with the other judges, says:--“Mr. Horne Tooke, I have consulted my Lords the Judges who are present, they feel themselves extremely disposed to indulge you on the score of your health; they think that it is a distinction which may authorise them to do that in your case which is not done in other cases in common; they cannot lay down a rule for you which they would not lay down for any other man living, but if your case is distinguishable from the case of others that does permit them to give you that indulgence which you now ask”--Then Mr. Tooke says:--“I am very much obliged to your Lordships, and am very well content to accept it as indulgence or any other thing. Undoubtedly it is very acceptable to me, and very necessary for my health; I am glad to save the time of the Court.” On that ground, after having attempted it on the ground I have stated, he was removed to the inner bar.
Now that case seems, I think, to establish that it is, in the judgment of the several judges who were here upon that occasion, a thing which ought not to be done unless under very special circumstances, and we ought to be on our guard against doing that which might have the appearance of treating one kind of felony, and one rank or class of persons, in a different way from another; or of intimating that, because a person is somewhat of a superior rank, he is to be treated in a different manner; and we are anxious not to do it in the way of favour or on any such ground as that, and we feel that we cannot grant this on the ground on which you put it. This seems to my learned brother and myself to be the same in fact as Mr. Tooke’s, though not quite so strong--a desire in the party to communicate with his counsel, which will exist in every case. It was not thought sufficient in that case: he was indulged only on the ground that his health was such that it would suffer from his remaining in the ordinary place: and here no such cause is alleged.
Mr. _Kelly_. It is my duty to acquiesce in the decision of your Lordships. I beg to say I did not put this on any distinction of rank.
Mr. Justice _Maule_. No; that we understand perfectly, and the Court is disposed not so to put it. I said, that lest there should be a feeling, though it was not put so, that there might be a distinction drawn between this and any other case on that ground. What other difference is there between Mr. Zulueta, charged with felony in slave trading, and any other person coming to that dock, charged with any felony of any other character, requiring wealth and capital to carry it on?
Mr. _Kelly_. I did not desire, in the least, to press it on that ground; on the contrary, I disclaimed it: I mentioned that which was the principal ground--that the documents are all in a foreign language; and that which I submitted to your Lordship was entirely my own suggestion, and not Mr. Zulueta’s: I acquiesced at once, as I ought, in your Lordship’s decision.
Mr. Justice _Maule_. The Court is so constructed that you can approach Mr. Zulueta, though he cannot approach you.
(_The Defendant took his place within the Bar, and was arraigned on the Indictment for Felony._)
_Clerk of Arraigns._ How say you, are you Guilty, or Not Guilty?
_Defendant._ I am Not Guilty.
_Clerk of Arraigns._ If you object to any of the gentlemen who are called, you may make the objection before they are sworn; and it is my duty to inform you that you have a right to be tried, being a foreigner, either by a jury of half foreigners and half English, or by a jury entirely English.