Part 39

It was observed, also, that the vessel afforded the means of having slave decks placed. Where a vessel leaves a place, such as Spain, or some place where she may leave with impunity with all her equipments complete, they have slave decks in the vessel--that is, decks with about two-and-thirty inches from one deck to another, in which the slaves lie. These they were not able to set up under these circumstances; but there are decks placed that as many as possible may be carried. These decks could not be existing in this country: they could not be allowed to go from this country. There are, however, places, and some screw-bolts where they can be placed, and by which they could be fastened: they might be speedily put in on the coast of Africa, so as to fit the vessel for carrying slaves there: of course it could not be done here, but the screw-bolts might be put in, and the slave decks fixed in an incredibly short space of time; and thus she might be immediately prepared for receiving the slaves when she was in Africa.

I shall also, I believe, show that a person was applied to at Portsmouth to enter to go to the coast of Africa. When she was there, letters were received by Jennings; and I shall prove certain circumstances by a witness, who I shall call before you, who was present when the vessel was taken, a letter found on board her, which was written from London: and I may state that at once, as my learned friend has admitted that whatever was written by the house would be evidence against the prisoner at the bar; and I should state that he himself said before the Committee of the House of Commons on his examination, that he himself had the management of the whole of this business. I will read the exact words--“I have managed all this business;” therefore there can be no doubt that what came from the house he is responsible for. The letter to which I will call your attention was received on the 26th of September, 1840.

Mr. _Kelly_. My learned friend will pardon me for a moment. I have said I shall not think it right, in a case of this sort, to interrupt my learned friend in any attempt he may make to read documents which proceeded from the house, but I must not therefore be taken to agree to their admissibility.

Mr. Justice _Maule_. You will not consider the admissibility of the evidence as established until it is offered in evidence.

Mr. Serjeant _Bompas_. Of course every thing I read, you will consider subject to proof. If I have been misled in any fact, you will remove it from your minds. Not that I would state any fact, if I did not believe it to be founded in truth. This is dated--“London, 26th September, 1840. Captain Thomas Jennings, Portsmouth. Dear Sir,--We have received your letter of yesterday, whereby we observe that the sum we have remitted you will not be sufficient to cover all the expenses to clear the ship. We much regret you have omitted mentioning the sum you require, which prevents our remitting you the same by this very post, thus causing a new delay in leaving that port, so contrary to our wishes. You will therefore write to us to-morrow, that we may receive your reply on Monday morning, informing us of the amount necessary to finish paying all your accounts and expenses, to remit you the same by Monday’s night post, in order that you may be able to sail for Liverpool on Tuesday or Wednesday at the furthest. You must not omit stating the amount required; and waiting your reply, we remain, very truly, dear sir, your obedient servants.” Then the signature which was to that letter is cut out. Then it says, “According to our Liverpool house notice”--the prisoner, Mr. Zulueta, is connected with a house at Cadiz, as well as a house in London--“According to our Liverpool house notice you will go there to the Salthouse Dock,” superscribed “Captain Thomas Jennings, Broad Street, Portsmouth.” That letter was regularly received in the course of business, as to which business Mr. Zulueta says, “I managed it.” I believe I shall show you the handwriting of a part of it; but the signature was cut out. I believe I shall show it was cut out previous to its being found.

This being the letter, Mr. Zulueta having furnished the money for the purpose for which it was demanded, and having desired that Captain Jennings will send up an account of all the money expended, and that he should go to the Salthouse Dock at Liverpool; accordingly he went to the Salthouse Dock at Liverpool. It is impossible Mr. Zulueta’s name should be mentioned as the owner of a vessel used for such a purpose. It is quite clear, that if he knew it, his name would not be used as the owner of the vessel, and therefore this vessel was purchased in the name of Thomas Jennings. How far he was really the owner you will be able probably to form an opinion from the remainder of the evidence with which I shall furnish you. When it was purchased, no papers of any kind were handed over. She was a condemned vessel. She was bought without any register, and taken as a Russian vessel, and there being no evidence of ownership, she was purchased as such.

Gentlemen, she went to Liverpool; and when she went to Liverpool, I shall have to call your attention particularly to what took place at Liverpool. At Liverpool a charter-party was entered into, to which I will call your attention:--“Memorandum of the charter-party. London, 19th October, 1840. It is this day mutually agreed between Mr. Thomas Jennings, master and owner of the good ship or vessel called the Augusta, of the burthen of tons, or thereabouts, now lying at the port of Liverpool, and Messrs. Pedro Martinez and Co., of Havannah, merchants.” Pedro Martinez and Co. were merchants, having a house at Cadiz. It will appear from Mr. Zulueta’s own statement that they had a house also at the Havannah, that they were known slave dealers. According to Mr. Zulueta’s own evidence, he believed at the time they were slave dealers.

Mr. _Kelly_. If you say that, I beg you to read the evidence. He never did say that.

Mr. Serjeant _Bompas_. “Do you know the nature of the trade of Pedro Martinez at the Gallinas?--I know from general report that Don Pedro Martinez himself is supposed to deal in slaves, and I believe it is so.” That is at page 682, question 10398.

Mr. _Clarkson_. That is an examination in 1842.

Mr. _Kelly_. These are statements made in 1842. Have the kindness to read the answer to 10413, in the next page.

Mr. Serjeant _Bompas_. Every word he said in evidence will be read; but an interference in that form and that manner is not proper, and I shall not submit to it.

Mr. _Kelly_. I merely meant to correct what I supposed to be an inadvertent mistake.

Mr. Serjeant _Bompas_. My learned friend is quite right to interfere, if he thinks I am under a mistake. My object is to call your attention to what he said at the time; every word will be read to you, and you will form your own opinion upon it. “Is he known at the Havannah as a dealer in slaves?--I do not know, but I believe so; I do not know why it should not be known at the Havannah, if it is known in other parts.” My learned friend will make his own observation upon that, I shall read that as evidence before you; you will consider whether it is sufficient proof that he knew that Martinez & Co. dealt in slaves.

Gentlemen, I was reading to you the charter-party of the ship: it proceeds in these words--“That the said ship being tight, staunch, and strong, and every way fitted for the voyage, shall, with all convenient speed, load from the factors of Messrs. Pedro Martinez & Co., a cargo of legal goods, which the said merchants bind themselves to ship, not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and furniture; and being so loaded, shall therewith proceed to Gallinas, on the coast of Africa, or so near thereunto as she may safely get, and deliver the same; after which she may be sent on any legal voyages between the West Indies, England, Africa, or the United States, according to the directions of the charterers’ agents (restraint of princes and rulers, the act of God, the Queen’s enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation of whatever nature and kind soever, during the said voyage, always excepted). The freight to be paid on unloading and right delivery of the cargo, at the rate of 100_l._ sterling per calendar month that the ship may be so employed, commencing with this present month, all port charges and pilotages being paid by the charterers, and days on demurrage over and above the said laying days at pounds per day. Penalty for non-performance of this agreement 500_l._ The necessary cash for ship’s disbursements to be furnished to the captain free of commission. The charterers to be at liberty of closing this engagement at the end of any voyage performed under it on settling the freight due to the vessel. The captain being indebted to the charterers in certain sums as per acknowledgment elsewhere, the freights earned by the vessel to be held as general lien for such sum, and in any settlement for such freight, the said advances to be deducted from the vessel’s earnings.--THOMAS JENNINGS.”

Then, here is the addition to the charter-party:--“I, Thomas Jennings, captain and owner of the ship ‘Augusta,’ of this port, hereby I declare, I have received from Messrs. Pedro Martinez & Co., of Havannah, through Messrs. Zulueta &, Co., of this city, 1,100_l._ sterling for the disbursements of the said ship, her fitting out and provisions, which I engage myself to repay with the earnings of the same, according to the charter-party entered this day with the said gentlemen, and under the following conditions:--1st. All the earnings of the ship will be accounted for and applied to the said Pedro Martinez & Co., they furnishing the necessary cash for all expenses, repairs, provisions, and crew’s wages, including 15_l._ per month for my salary as captain. 2nd. At any time, when the said gentlemen may think proper to close the charter-party, I will make out the account, and deliver to them, or to their representatives, a proper bill of sale for the said ship and all her appurtenances, to cover the balance due to them in the said account. 3rd. That I am in no other way responsible for the settlement of the above-mentioned debt, but with the said ship and her earnings; and that the said Messrs. Pedro Martinez & Co. will take on themselves the insurance and risk on the vessel.--THOMAS JENNINGS.”

Now, Gentlemen, it will be most material for you to consider the effect of this charter-party, and what is called the loan. It is nominally chartered by Thomas Jennings, as the captain of the vessel, to Pedro Martinez & Co. through Zulueta & Co.; and Zulueta & Co. are the persons employing that vessel: there can be no doubt of that. Now what is the effect of these two documents? Is it that Jennings is the real party who engages to pay? No such thing. “I am in no other way responsible for the settlement of the above-mentioned debt, but with the said ship and her earnings; and that the said Messrs. Pedro Martinez & Co. will take on themselves the insurance and risk on the vessel.” So that he is not in the slightest degree indebted to them: he is not bound to pay, but it is only that he is indebted to them on the vessel. Can he say I will pay you the money and keep the vessel? No; whenever Messrs. Martinez & Co. choose, the vessel is to be made over to them. Can he make over the vessel and apply the money to his own use? No; he has only 15_l._ a month, and can be required to make over the vessel whenever they please. But that would be the ordinary transaction in peace time; the money would be advanced to him; the vessel would be the security for it at any one moment at which Martinez & Co., or their representatives--that is, Messrs. Zulueta & Co.--might call upon Jennings to deliver up the vessel to them. He is always accountable to them for the earnings of the vessel, and he is in no respect personally responsible. The question you will have to decide is this: Is this a method by which it shall appear that Thomas Jennings is the owner of the vessel, so that no other person shall have a right to say that he is the owner? He is to appear to be so; but the other parties have a right to say, “Give the vessel up to us;” he borrowing, but having nothing but the vessel; he being to receive his wages of 15_l._ a month as captain. It will be undoubtedly a very material consideration whether this is matter of concealment; a mode in which Jennings is to be made the apparent and not the real owner, or whether he is the real _bonâ fide_, owner. It is clear he would be in no respect responsible under this arrangement entered into at Liverpool. You will have, in connexion with the evidence, to examine the statement made by Mr. Zulueta. The letters, which will be read, undoubtedly treat Zulueta & Co. as purchasers on behalf of Martinez & Co.; and the charter-party is made by them as agents for Martinez & Co., by which the factors are to ship these goods for Africa as agents for Martinez & Co.

Gentlemen, the vessel went to Liverpool; she was there loaded in the ordinary course, according to the account given by Mr. Zulueta in his evidence. He is asked, “You did not imagine that in being the instrument of sending lawful goods to any part of Africa, you were doing any thing which required concealment?--Nothing at all of the kind; and the proof of that is, that in the bills of entry in Liverpool any body could see our names as consignees of the vessel, and see entries made in our names of every thing.” No doubt, gentlemen, according to that charter-party, if it was a _bonâ fide_ charter-party, shippers might ship goods on board the vessel in their name; every thing would be in their name; and the papers on board that vessel might be in the name of Zulueta, and not in the name of Captain Jennings: but if Captain Jennings was the owner of the vessel, and Messrs. Zulueta the factors of Martinez, he would have only to receive the goods shipped on board that vessel by Messrs. Zulueta. It is clear a cargo was put on board that vessel, and if she was going on a legal voyage, there is no reason why every thing should not be in the name of Messrs. Zulueta, and why the ship’s papers should not be in their names as the owners of this vessel. But all the ship’s papers were made out in the name of Thomas Jennings; the bill of lading is made out as shipped by Thomas Jennings; and none of the shipments are made by these factors, who, according to the charter-party, were to ship the whole. No doubt it will be for you to consider how far that is a wilful act of concealment or not.

Gentlemen, this vessel was going to the Gallinas. The Gallinas is a port in Africa, about 200 miles from Sierra Leone. It is necessary you should know the nature of that port. It will be impossible but that persons engaged in trade should know the nature of that port. It is a settlement, or rather a native State, that consisted of a harbour and a river, and it is called the Gallinas. The sole trade carried on there is the slave trade. It consisted of a few, I think there were five, of what are called barracoons. It is hardly necessary I should state that a barracoon is a place in which slaves are kept; that slave traders by attacking a village, or other means, take possession of the people, who are taken down to warehouses erected for their use--barracoons as they call them--places where they are kept until an opportunity arises, whereby they may be shipped off either to the Havannah or to Cuba: the two great places to which slaves are sent from this place are the Havannah and Cuba. The place consists of five barracoons, as they are called; five warehouses, where the slaves are kept. It is not a trading place in any other way. Slaves are purchased by the barter of cotton goods or other goods from England, or by doubloons, which are raised by drawing bills on persons in England. There is no other trade but the mere slave trade. In the barracoons and places, these unfortunate people are kept until an opportunity arises for selling them, to be disposed of either in Cuba or the Havannah. One was kept by a person of the name of Rolo, another by a person named Ximines, another by Alvarez, another by a person of the name of Buron, and another by a person of the name of François. This vessel and cargo therefore were dispatched to a place which was wholly a slave trade establishment. There is no other trade whatever. I believe there was not at that time, nor had been long before. Since the slave trade has been stopped there, it is somewhat a different thing; but at that time it was a place used entirely for the slave trade, and the goods which were sent there were used for barter, and the doubloons for which the bills were drawn were employed in the purchase of slaves. The three consignees of this vessel were the three persons I have first mentioned, three persons having barracoons in the Gallinas. It is possible that a name of a fourth may appear in the evidence. You will remember that the fourth is named Buron. The vessel therefore went out from England with a cargo consigned to these three persons, Rolo, Ximines, and Alvarez.

Gentlemen, when the vessel got some little distance from England, I believe a hundred miles from Cork, she encountered a considerable gale: upon that the captain determined to go to Cadiz; the wind was unfavourable for Cadiz: she was about a hundred miles from Cork, and there was a perfect facility of going to Cork or to Falmouth, where they might have arrived in the course of a day. It would take 18 or 19 days to go to Cadiz, I believe 19; but the captain determined to go to Cadiz, the crew resisted this, and they came to the determination that some of the crew should be discharged at Cadiz, Mr. Zulueta having a house at Cadiz, and Mr. Martinez too; and it was at Cadiz she received the dispatches which were found on board, as to the consignees, as to what was to be done with the shipment on board, and what was the object of the shippers. Part of the goods appear to have been landed there by the firm of Zulueta & Co., and Mr. Zulueta received an award for the injury which had occurred, the injury the cargo had sustained in that gale. I believe the principal part of the tobacco was landed. It will appear by the bill of lading the shipment of goods was by these three persons. The tobacco was landed by Mr. Zulueta of the house in Cadiz, and the house in London received compensation for the loss upon that, they having shipped the same in London.

Gentlemen, the vessel afterwards sailed from Cadiz. She arrived, I believe, about the 6th of December, and sailed in the early part of January. She was captured on the 7th of February, 1841, by Captain Hill, when she came near the coast of Africa. It happened that Captain Hill, whose duty it was to capture those vessels, either Spanish or English, which had dealings in slaves, met with her, and he was not a little surprised at seeing so soon a vessel he had captured as a slaver, under the name of the Gollupchik, come under English colours with a new name. He boarded her, and saw Jennings on board. She was not then, of course, to use the technical term, equipped as a slave trader; she having sailed from England with goods on board, it was impossible she should be. He asked to whom she was consigned: Jennings refused to tell.

Mr. _Kelly_. Are we to have the conversations with Jennings, the master, long after the felony is supposed to have been committed by Mr. Zulueta in England? Is the conversation with every person, in every quarter of the world, to be given in evidence?

Mr. Serjeant _Bompas_. I am not going into any conversation between the master and the captors, merely the simple fact. Captain Hill being about to seize the vessel, the dispatches of the vessel were at length brought out with great reluctance; the captain, however, delivered up the letters, and told Captain Hill those were the letters to the consignees. They are letters with certain directions.

Mr. _Kelly_. My Lord, I must object again to what I conceive is most irregular on the part of my learned friend, who is proposing to give in evidence that which took place between Captain Hill and Jennings. My learned friend has opened a very complicated case, and now my learned friend attempts to describe the contents of papers given by the house of Martinez & Co. to the captain, some months after the vessel had sailed from England. Mr. Zulueta, at the bar, is charged with a felony in having equipped and employed this vessel for the purposes of the slave trade. My learned friend is opening the case against him on the charge of felony, and he is supposed to be affected by instructions given by other persons months afterwards--persons in Cadiz, over whom he had no control--instructions which he never saw until they were alluded to in certain proceedings in which he had no concern whatever. My learned friend is stating a part of the contents, and stating them most incorrectly. I apprehend Mr. Zulueta is undoubtedly liable for the consequences of any act he has done, any act he has sanctioned, any thing done by his firm with his knowledge; but that he cannot have used as evidence against him papers delivered months after the supposed commission of the crime, and long after he could have interposed--months after the vessel left England. My learned friend knows he has no evidence affecting the defendant touching her afterwards; but he is opening the contents of papers given by a foreign merchant months afterwards.

Mr. Justice _Wightman_. I did not understand Brother Bompas to state that the prisoner was aware of the contents of those papers.

Mr. _Kelly_. My learned friend does not pretend now to state that, but he describes them as containing instructions given to the captain; they were not instructions given to the captain.

Mr. Justice _Wightman_. He does not state that they were.

Mr. Serjeant _Bompas_. It is important that the objection should be made, if at all, now. The evidence no doubt is most important, and I thought it was possible that my learned friend might object. It is fair to the understanding of the case that the objection should be stated, and I am obliged to my learned friend for taking the objection now, if it was to be taken. I wanted to call his attention to it, not wishing to allude to the contents of those documents unless they are admissible in evidence; but it will be quite impossible to call the attention of the jury to these facts, unless I know whether the evidence is admissible.

Mr. Justice _Maule_. How can we decide that until we know what they are?

Mr. Serjeant _Bompas_. My object is to offer them as evidence in the case, and therefore to open them as evidence.

Mr. _Kelly_. My learned friend is stating what I did not understand him to state before, and therefore your Lordship will allow me to place this point of the case on its proper basis. When he is opening this part of the case, in order that if there is no doubt on the admissibility of the evidence it may be at once taken, I do at once make the objection; and I think your Lordship will pardon my saying a few words more on that which my learned friend considered rather an interruption, or a protestation, than an objection. My learned friend charges Mr. Pedro de Zulueta with having committed a felony, that felony having been committed in England in the months of July, August, and September; that is, that Mr. Zulueta equipped and dispatched a vessel, and shipped goods on board that vessel, for the purposes of the slave trade. That vessel left England, I think, in the month of October--

Mr. Serjeant _Bompas_. The 9th of November.