Part 4

And thus, after having laid down that the Act requires a proof of innocence in the party accused, a knowledge of something innocent intended--which, if not given, must leave the inference of guilty knowledge, inasmuch as _no knowledge_, ignorance of the object, cannot be taken as an answer--the accused, if he cannot produce his correspondent, or if he did not possess himself at the time of making the shipment, of a plain and simple account of his plans, is left to the mercy of such inferences as may be drawn; and upon this view of the requirements of the Act of Parliament he is to be considered as withholding something which cannot be supposed to be favourable to him. This inference will not be counterbalanced--it cannot be when once admitted; it must either be destroyed by the plain and simple account of what the merchant abroad intended, or its edge will be blunted by nothing else. The accused’s character may be “of the very highest,” perfectly unassailable; the position he occupies in the mercantile profession may be very high, the profession itself in this country being reckoned on a level for honour and principle with the highest; and men of unblameable character, of considerable standing and independence, conscientious and upright, moving in society where good taste and right feeling prevail, are not likely to put their property, their character, their consciences, in jeopardy, especially by partaking in transactions to which their habits and feelings, and those of persons around them, stand opposed, and all that for very paltry advantage. It is pointed out by the learned Judge, that although a very grave charge, and of a very highly penal nature, still the slave trade--the dealing in slaves--“is a trade, which till a recent period was lawful for persons in this country, and many persons of very good character certainly did engage in that trade, and a great number of persons justified it. I suppose,” he continues, “those same persons would now say it is not to be engaged in, because it is a prohibited thing--it is a regulation of trade enforced by very severe penalties made by this country--but that the dealing in slaves is in itself a lawful, right, good, and proper thing, which ought not to be prohibited. Those persons would now consider slave trading as a thing prohibited only by positive regulations. There is no one who does not at once perceive that practical distinction between them. There is no person who, in point of feeling and opinion, does not perceive the difference there is between a thing which is prohibited by positive law, and that kind of thing, against which, if there were no law at all against it, the plain natural sense and conscience of mankind would revolt. This trading in slaves, in the opinion of a great many persons, is itself an abomination, a thing which ought to be considered with the greatest horror, whether prohibited or not; but those who think it was right when it was not prohibited, probably do not think it so very bad if it be committed now, since it has been prohibited by law, only that it is to be avoided on account of the penalty to which it subjects the individuals engaged in it. This has some bearing on the question of how far considerations of character would have weight with respect to such an offence.” The opinion entertained by the individual in question against the slave trade may be as strong as the strongest for any thing that appears, who has stated without its having been contradicted, that neither himself nor his family have ever been suspected of having the smallest interest in slave dealing, or in slave property, about which he has stated how his fathers have proceeded: an individual, who may, perhaps, have a very strong opinion as to the moral and religious duty of obedience to positive enactments by competent authority, and who said something to that effect in the evidence before the Committee of the House of Commons, which had been read in Court.

This as to the character of the party. As to the inducement, when it is alleged that the smallness of the agency commission charged shows that the transaction was considered to be one in the ordinary course of shipping business, that consideration is pressed down by the weight of the radical defect in not having given a plain and simple account of what was intended by the foreign merchant. “It is alleged,” says the Judge, “that the profit on this transaction would be extremely small. I do not think that the petty gain of this one transaction is the matter, for it appears that Pedro Martinez & Co. do a great deal of business, and it is possible that whenever persons have a large and valuable business to conduct, _there is some small portion that the correspondent and agent would willingly get rid of if he could_; but he is not allowed to pick and choose, but he must take the whole.” In short, a London merchant, of the character which has been described, is to be supposed as not at all unlikely to commit a felony, if the alternative be to lose a valuable connexion.

And thus, whilst the most unimpeachable character is not a proof to any extent against the suspicion of a felonious knowledge and intent, and whilst the token of innocence afforded by the charge of the ordinary rates allowed in legitimate business is not considered of weight--as a compensation in some other way is possible, and the disposition to barter conscience and duty for money is such a thing as people who conduct a large business are not quite unlikely to lend themselves to if they are not allowed to pick--so, likewise, the supposed extent of the connexion of the merchant is no bar to their being supposed anxious to retain one more under felonious conditions. Neither the superiority of his knowledge and education, nor his skilfulness, are likely to make him either apprehensive or disinclined to the commission of a crime, whilst these qualities render him obnoxious to the remark, “that it may very generally be taken, that people know what they are about, unless they can show there was some particular concealment, some hinderance to their knowledge;” “unless they,” so accused, “can show,” that they did not know (not if those who accuse them have shown that they _did_ know), then all the qualities of character, station, extent of business, education, are against the accused; and unless the accused can show, that he had a knowledge of something innocent having been intended by the foreign merchant, any peculiar circumstances of the case, which may appear to be of a favourable nature to the accused, must be considered only in that light which may diminish the improbability of his having had a guilty knowledge. Thus, as the employment of the British flag for the purpose of dealing in slaves stares every body in the face, and was a very strong feature in the present case, not only against any knowledge on the part of the charterer of the vessel and shipper of the goods in England, but even against there having been any guilty intent in the merchant abroad, who had the choice of other flags equally secure and less easy of detection and punishment, the favourable inference hence arising must be neutralised. “If Jennings” (the master of the vessel) “was an adventurer, if he were, as suggested, a very clever and intelligent person, and very conversant with every thing to be done on this occasion, a competent master of the vessel, supposing the slave trade to be intended, a thing which requires qualities one is sorry to see exercised so ill--a great deal of courage, sagacity, and presence of mind, and an unscrupulous readiness to employ them for the commission of this felony, not to be found in everybody--a man of such a description would be the paramount object of a slave trader, whose aim would be, whoever the owner may be, to elude all search, so to manage the thing as that the cruizers of any country shall not stop him. Probably, if the adventure succeeds, it must succeed by such means, so that one sees a perfectly good reason why, consistently with this being a slave trading voyage, it may have been English owned.” Not a word appears in the proceedings against the character of this man, neither does it seem intended by the learned Judge to impugn it, simply to say that _if_ the man did possess the qualities of cleverness and courage attributed to him, these qualities being very serviceable for wicked purposes, it is to be inferred that they were intended to be applied to a slave trade adventure, since no plain and simple account of a lawful intent on the part of the foreign merchant has been given by the charterer in England, with whom the law is to be supposed to make a knowledge imperative. The prosecutor knew, although it was not before the Court, that this man had been tried for the very identical offence in this matter of the Augusta at Sierra Leone, and had been acquitted; for _the chief witness in this prosecution_, in which, be it observed, Jennings is coupled with me (see the indictment, page 211), _was the prosecutor in the proceedings against him before the criminal court of that colony_; and he himself stated before the Committee of the House of Commons (see Lieutenant Hill’s evidence, page 84), that Jennings had been acquitted. And here, by the way, let it be noticed, that _Jennings is at this moment under a prosecution in London for the very crime for which he was tried at Sierra Leone and there acquitted_, the chief and really the only witness, upon whose sworn depositions before the Grand Jury here the bill against Jennings has been found, being the very same person who instituted the prosecution at Sierra Leone, which terminated in the acquittal of Jennings. And thus, while the individual so acting is at this moment on his way to take possession of his appointment as governor of the Gold Coast, the unfortunate man, who he knows cannot be tried a second time, is in prison.

Further, as the vessel had been admitted (how reluctantly may be easily seen) by one witness not to have been furnished with equipment of any sort for slaving purposes, and had been rescued from the attempt to raise a doubt upon this point, by the evidence of another witness, this is shown also as in no way serving the shipping-agent in England without giving the plain and simple account of what was intended by the foreign merchant residing abroad. “I should think it would be quite a matter of course, even if the vessel was intended to be sent to promote the slave trade, that she should not go out with shackles or leagers, or any thing of that kind on board; for if they are on board, the vessel would be at the mercy of any Custom-house officer.”

The vessel had, however, been at Cadiz, where, according to the representation made on behalf of the prosecution she was really meant to go first, in order to provide herself with the slave instructions, which the Court would not receive, though strongly pressed, as evidence against the agent who had managed the vessel in England so far as chartering and loading her; and yet, although it had been said by Serjeant Bompas “that wherever a vessel leaves a place such as Spain, or some place where she may leave with impunity, with all her equipments complete,” she does so; and although this vessel, which has been charged by the prosecution to have gone into Cadiz for the very purpose of helping the illegal object imputed: she is found not to have been there equipped--and that not from any great attention to the safety of the adventure, for the letters contended to be so clearly slave instructions for the voyage seem to have been there put on board--still the observation is not the less applied, that she was not equipped for the slave trade, because she could not have been so in an English port, without any reference to the fact that the prosecution had contended she could and would have so been at a Spanish port. There she had, however, touched; and that too, according to the prosecution, for the very express purpose of helping the illegal object in a manner more condemnatory than any other. The thing demanded from the prisoner is, however, a plain and simple account of the intent of the foreign merchant in this transaction, and without his being able to give that, every other circumstance which may be favourable to him, either vanishes away, or converts itself into a weapon against him.

Again, the counsel for the defence had put the following case to the Jury:--“You may be manufacturers of guns or gunpowder, or commission-agents living in this country, who, for the purpose of shipment, purchase those goods; in either case a party comes and says--I want 1,000 muskets and six tons of gunpowder to be shipped to a certain place on the coast of Africa. I ask you, are you first to consult the map to ascertain the place, and, having ascertained where it is, are you to go to Captain Hill or Captain Denman and inquire whether they have been upon the coast of Africa, and can tell you the character of the trade carried on there? Are you next, the person being a Spaniard or a Portuguese, to inquire whether they ever deal in slaves; and if you find they do, are you to say, I will execute no order you give me?”

Upon this the learned Judge remarks:--“That Zulueta & Co. stand in a very different situation from that of a person who is simply the manufacturer or dealer in goods, and who has those goods ordered, and who, inquiring Where shall I send them? is answered, Send them on board the ‘Augusta,’ now lying at Liverpool. It would be a strong thing from that circumstance to infer that a person sending those goods on board had any thing to do with slave trading; but that appears not to be the nature of this transaction. In regard to there being a slave trading, all that is done, is done by Zulueta & Co. It is not merely that they had goods sent on board the ship, but they chose the number of the goods to be sent on board the ship, goods which they had bought, for which they had negotiated; and they made out such charter-party, and that charter-party provides that the ship shall proceed to Gallinas on the coast of Africa.”

In the case of the manufacturer of the goods, described as receiving an order and executing it, and shipping the goods on board a vessel for the Gallinas, it would be _strong_ to infer that he had any thing to do with the slave trade. Why so, but because every one of these acts is compatible with ignorance of the objects that are or may be intended? Now, the learned Judge had previously established that the acts of buying and shipping, chartering, and dispatching, are not necessarily in themselves conclusive of guilt, which of course they are not; how, then, is the inapplicability of the comparison put by the counsel for the defence to be maintained, but by laying down the principle, that for the purpose of a defence under this charge, the commission-agent must, at all events, be required to be possessed of, and therefore to be able to give, a plain and simple account of what the merchant abroad intended; and this once laid down, nothing that comes short of it must be suffered to tell in his favour.

The preceding remarks are scattered over the whole of the summing up, and accompany a recapitulation of the particulars of the case. They are here brought together in succession, for the purpose of showing the manner in which the circumstances of the case, in a proceeding of this kind, are treated. It is very true that an introductory remark precedes, laying down “that it is necessary undoubtedly, on the part of the prosecution, that there should be a case made of knowledge, on the part of the prisoner, of the purpose for which this adventure was meant.” The whole process which follows is of a nature which would appear contrary to this principle, unless with the qualification that the proof is to consist in the prisoner not giving himself a plain and simple account of something innocent meant by the foreign merchant residing abroad; and as if the law left no alternative to the shipping-agent, who buys and ships the goods in England by his order, but to do this; or, _ipso facto_, by not doing so, to stand self-convicted of the guilty knowledge.

Under this view of the requirement of the law, which I have now followed throughout this charge, the concluding remarks of the Judge seem to be dictated. “Now, inasmuch as there are two other partners, and it is probable there might be some other persons in the concern, there arises this consideration. It is true, supposing that there were a case made, but that the prisoner was innocent of it, that he could not call Martinez & Co. on that supposition, as he might on the supposition of there being no slave trading; for Martinez & Co. would not be innocent persons, and they would not be willing to come into this country and say, ‘We carried on the slave trading, but it was disguised from our correspondent, Zulueta & Co.’ If you think there is a case requiring an answer, the question then is, would there have been any difficulty in the prisoner calling his two partners, and others conversant with the business of the firm, and proving that Zulueta & Co. knew nothing at all about this, that they had not the least suspicion, that Martinez & Co. never communicated the fact to them, and that the illegal purpose was utterly unknown to them, for some reasons which the prisoner cannot give, but which his partners could? It would be extremely desirable they should do it, if the defence existed in point of fact.” And lastly, the learned Judge concludes his address to the Jury, by directing their attention to the evidence of the character of the prisoner, remarking, that it is “a character I should say very strong indeed, and almost conclusive, supposing the case were one that did not admit of an answer in point of fact.”

Here the same principle of demanding a justification of innocence is carried out, which pervades the whole of the summing up, and of every part of the management of the case by the Court. It is not said, in any one part of the charge, that the prosecution have made out either a case of slave dealing, or any knowledge of such a thing being intended, or known to be intended by the prisoner, against which a contrary case should be opened and proved; but only that evidence which the prisoner should give of innocence is pointed out; and, what is most remarkable, the following circumstance was not thought worthy of notice.

Mr. Fitz-Roy Kelly (the counsel for the defence) had in the outset, when Mr. Serjeant Bompas was opening the evidence for the prosecution, brought into Court every book, letter, and paper of the firm of Zulueta & Co., with the clerks in whose keeping these documents constantly are: they consisted of the journals, ledgers, letters, bill-books, memorandum-books, original letters of the house of Martinez & Co., of the Havannah, and Martinez of Cadiz, since 1839, one year before these transactions originated, up to 1841, one year after their termination; and, as will be found in page 303, Mr. Kelly made the following tender:--“I ought to add, as the notice to produce has been referred to, and is now upon the table, that the notice calls upon the prisoner, Mr. Zulueta, to produce all the books, documents, and accounts of his house, between certain dates, at all relating to the transaction in question; and all letters written, and copies of letters written by this house, or any body for them in relation to this matter. My Lord, every document there mentioned is here in Court, and in two minutes ready to be put upon the table.... The greater part are in Spanish, and the prisoner at the bar can distinguish them; but the clerks who kept these books, the corresponding clerk, and the clerk in whose handwriting they are, are ready to speak to any thing my learned friend may call for from the beginning to the end.” This is not taken any notice of by the learned Judge, when pointing out that the prisoner should have called his own father and his own brother, the only partners in the house, to prove that Zulueta & Co. had no knowledge of any slave trading being intended, although the prisoner himself had so stated the fact to be before the Committee of the House of Commons, in the evidence which had been read in Court; and if the statement was objectionable, as being from the party now deeply interested himself, when in a very different situation, it is not perceived how that objection would not have held with tenfold strength at that moment against their evidence. Thus it remains on record, that nothing short of a plain and simple account of what the merchant abroad intends, made out by the defendant, will answer any purpose of the slightest advantage to himself. It is enough in the case of a vessel employed by an agent in England to carry goods, bought and shipped by himself, by order and for account of a foreign merchant residing abroad, if the prosecutor show a general slaving at the port of destination.

And thus have I disposed of the last point which I proposed to illustrate out of the summing up of Justice Maule, in order to show the position of merchants who have intercourse of business with countries wherein slavery, and the slave trade, is still permitted to exist.