Part 40

Mr. _Kelly_. We shall have no dispute on those facts. That vessel, purchased under circumstances which will probably appear more clearly in evidence. It is stated by my friend that Zulueta and Company purchased the ship; no doubt the house of Zulueta and Company interfered as agents for the house of Martinez and Company. That vessel was dispatched from England, and left England in the month of November, 1840. Whatever the prisoner at the bar has done in respect of the dispatching of that vessel, was done and completed then. The crime, if he committed any, was completed before the month of November, 1840. That is the charge upon which he is now on trial. I quite agree that, if since November, 1840--if instantly he had held any conversation--if he had written any letter--if he had held any conversation that might be used against him as evidence of the purpose for which he used and dispatched that vessel, which he had dispatched in the month of November, 1840--

Mr. Justice _Maule_. With respect to that portion of the opening of my Brother Bompas, the question is pretty much the same as with respect to that mentioned before.

Mr. Serjeant _Bompas_. Will your Lordship just hear how I present it?

Mr. Justice _Maule_. It is open to the same mode of dealing with the matter depending on the question--whether it is so clear that it will be admissible, when it comes to be offered in evidence, as that it ought to be stated. If Brother Bompas proposes to argue that, he may go on now.

Mr. _Kelly_. I am in your Lordships’ hands; it is immaterial to me when I am heard. I was only going to add, which will go much to the argument, that on a common civil case, something written, said, or done by another person in a distant country, some months after the time when he is said to have committed the offence charged, is no evidence against him. If it were, Mr. Zulueta might have (as I believe he was), he might, with the rest of his firm, have been engaged in shipping goods on a lawful merchandise according to the British laws, in consonance with natural equity and right, and the character of the transaction might be completely changed. I can very easily imagine a case in which a British merchant--nay, a British trader of any kind--may ship a quantity of muskets to the coast of Africa, or the coast of Spain: nothing can be more simple than the proposition--a trader may ship a quantity of muskets to Africa, to Spain, or to France; he receives the goods, and ships the goods; and now he has done all, and the ship sails; and he may have died after the shipment; another person possesses himself of those muskets, and he employs them in war against the Queen of Britain--Is that to be used in a criminal charge of felony against him? But that is just the case here. These gentlemen of this house of Zulueta and Company are concerned in shipping a quantity of goods--I might have taken the objection whether as principal or agent, but I will not raise that--here is the ship, and here are the goods; they ship them for the coast of Africa: the shippers remain in England; they have nothing more to do with the transaction; the vessel putting in to Cadiz, whether by previous design or stress of weather I will not say; another person, over whom the shippers have no more control than they have over the inhabitants of the kingdom of Spain, give certain orders, which I will suppose contemplate an illegal object--Are those to be used as evidence against the shippers here on a charge of felony? My Lord, I have done; I shall wait until I hear how my learned friend can justify the giving that in evidence against Mr. Zulueta.

Mr. Serjeant _Bompas_. My Lord, if I had any reasonable doubt that I could give this in evidence before your Lordships, I conceive I ought not to interfere with the view your Lordship has thrown out with respect to the letter I before tendered; but I apprehend there can be no doubt. I may be mistaken in the view I have taken: I may be wrong.

Mr. Justice _Maule_. Unless you feel it quite material to the case to state the nature of the evidence you propose to offer, I should think that in a matter of this kind it might be advisable to abstain from the statement of it. The circumstances which a learned counsel proposes to offer in evidence ought to be such as leave no doubt in his mind that he shall be able to bring them home to the prisoner, or that which is not ultimately made evidence against the prisoner may make an impression which is not justified. If you have any doubt that you shall be able to make this evidence, Mr. Kelly is justified in his objection, and so long as there is a doubt whether it is admissible, the Court think it is not fit it should be stated. If in your opinion that is doubtful, you have a right to be heard; but if you consider this as likely to be a long case, it will be desirable to abridge it so far as you can, to bring it within such a compass that it may receive the attention of the jury, and that time should not be unnecessarily occupied in these discussions.

Mr. Serjeant _Bompas_. Gentlemen, I am always most ready to adopt the suggestion which the Court are kind enough to hold out. I feel that a counsel, standing for the prosecution, stands in a somewhat different situation from another person, and their Lordships, sitting to do justice, and fairly taking care that if there be a doubt, that doubt shall be taken for the benefit of those charged with a crime. I feel that as to the admissibility in evidence, if there is a doubt, it ought not to be stated to the jury. It is not for me, as counsel for the prosecution, to say that their admissibility is perfectly certain. It would be very hard if the view taken by counsel in a criminal prosecution were not to be regulated by the judgment of the Court. It is enough that I should state, that, in my opinion, it will be necessary that these letters should be admitted in evidence, and that you should direct your attention particularly to them. It will place an additional obligation on the learned judges at a future stage, if I am not allowed to call your attention to them, to see that they are so brought before you as that you should understand them. There is no weight intended to be given to the evidence beyond that to which it is entitled, but it will be my duty to bring them fairly to your understandings, when I tender them, that you may see the bearing of them. The reason of my offering them in evidence will be given when I do offer them in evidence. This is not a decision that they are not admissible in evidence, but that it is better I should not open to you what may leave an impression which ought not to be made, unless I show that this is evidence. By the course taken, if this is not evidence, there will be no impression made. There is no doubt that very great importance to the prosecution will rest on the decision of this question; it will have a very great effect in the decision of the question, whether from this time or not there may be perfect and absolute impunity to any person who chooses to conduct a trade of this kind, provided only he is not so unwise as to advertise himself before-hand as a man who has connexion with the ultimate procedure of the vessel. Gentlemen, at present this matter is perfectly in debate. I shall offer this to you in evidence, and then it will be shown how it applies. This vessel, as I was stating when I mentioned certain things found on board, was captured by Captain Hill, was carried to Sierra Leone, and from thence brought home to England, and there was an end of the voyage.

Gentlemen, one material question that you will have to consider when the case is before you is--What was the object of the destination of the vessel? For what purpose was the vessel sent to the Gallinas? Was she sent for the purposes of fair trade, or was she sent to the Gallinas with goods to be used for the purposes of the slave trade? No doubt the vessel would not be perfectly equipped on going from Portsmouth; but the state of the vessel then you will have to consider, and I believe I shall be able to show that at that place the leagers were taken to pieces and put on board in such a manner as that they could be easily put together when she got out, and that there were existing in the vessel a very considerable number of shackles usually used for the purpose of confining slaves. You are aware that the slaves, the male slaves, are almost always put into this situation between the decks, and confined also by shackles. I shall be able to show that the leagers were taken to pieces and stowed on board the vessel, and that there were a very large number of shackles on board the vessel. Now, what was the object in going to the Gallinas? If any directions which were given in respect of that object are not brought out, you must find it out as well as you can in the circumstances of the vessel. She was going to the Gallinas. Mr. Zulueta was acting on behalf of a person whom he admits he believed to be dealing in slaves. The whole view of the case must be left in some degree to you, after all the evidence laid before you, supposing the evidence to which I have called your attention to be ultimately received.

Gentlemen, it will be my duty to call your attention to the evidence which Mr. Zulueta volunteered before the Committee of the House of Commons, and I can only say you will have to keep it in mind as applicable to the other evidence if it is admitted. If it is not admitted, you will take it as it is applicable to the case. I have mentioned one or two sentences, and my learned friend has interfered to represent that I was giving the effect of that evidence unfairly before you. I shall call your attention to the material parts, and leave you to apply it to the rest of the evidence. He was examined on the 22nd of July, 1842. It would appear, from the questions proposed to him, that some persons had made statements before the Committee of the House of Commons, which, being intended to reflect upon him, had been inclosed to him for his consideration, and that he felt himself obliged to appear to meet those statements. That is the way in which the evidence was given. He was not summoned before them--they could hardly summon him to give an account of that which was intended by previous evidence to reflect upon him; but, under those circumstances, he went before the Committee of the House of Commons. The Chairman says, “You have seen some statements that have been made to this Committee upon the subject of a transaction in which your house was engaged; have you any observations to offer upon it?--I received from the Clerk of the Committee a letter accompanying a copy of certain evidences, which are Mr. Macaulay’s evidence of the 10th of June, the 14th of June, and the 15th of June; and Captain Hill’s evidence of the 29th of June, the 4th of July, and the 6th of July. I would beg first of all to refer to the letter which I had the honour to address to the Chairman. My reason for wishing to be examined before this Committee was, that the statements contained in the evidence which I have mentioned are all of them more or less incorrect, some of them totally so. I will begin by stating what has been the nature of our, I will not say trade, for we have not had a trade ourselves, but of our connexion with the shipment of goods to the coast of Africa. We have been established as merchants for upwards of 70 years in Spain, for nearly 20 years in this country, and we have had connexions to a large extent in Spain, and in the Havannah, and in South America, and several other places; among them we have had connexions or commercial intercourse with the house of Pedro Martinez & Co. of the Havannah, and with Blanco & Cavallo, of Havannah. With them we have carried on a regular business in consignments of sugars and of cochineal, which they have made to us; and in specie received by the packets from Mexico and other places. We have several times acted for them here in this country, buying raw cotton for instance at Liverpool, and re-selling it very largely; that has been principally with Pedro Martinez & Co.” “They are general merchants?--They are general merchants, and their transactions with us have been of that nature. As general merchants we have bought stock here for them rather largely; and in the course of those transactions we have received orders from Don Pedro Martinez & Co., of the Havannah, and from Don Pedro Martinez, of Cadiz, to ship goods for the coast of Africa; never from Pedro Blanco, and never from Blanco & Cavallo.” “Have you received orders from Pedro Martinez for shipments for the coast of Africa?--Yes, in the course of business we have received orders to ship goods upon the funds in our hands belonging to them, and we have shipped the goods described in the letter, and sent the bills of lading to Pedro Martinez; but, beyond that we have never had any returns from the coast of Africa, nor any control of any kind from the moment the cargoes left the ports of this country.” “You have had no interest in the result of the adventure?--No, nor any notice, nor any acquaintance, nor any correspondence with any one upon the coast; we have never had any kind of knowledge, either subsequently or previously, of the shipments, except the mere fact of buying the goods and shipping them.”

It is quite correct that they had had communication, as will appear subsequently by evidence in respect of this vessel; they actually received the amount of the insurance on the damaged goods landed at Cadiz. “Your whole interest was a commission upon the transaction?--Entirely. The extent of those transactions has been so limited in the course of nearly 20 years that we have been in this country, that the amount of the invoices that we have sent out has been something like 20,000_l._ or 22,000_l._ in the course of all that time. That is one part of the operations we have performed. The other operations are the acceptance of bills drawn by people on the coast; among them Pedro Blanco when he was there, upon ourselves, on account of Blanco & Cavallo, of Havannah, upon funds which Blanco & Cavallo had in our hands; for instance, the people at the Havannah, or in Spain, open a credit with us, and we accept the bills of the parties on that credit with us just the same as we should do with any other correspondent in any other part.” You will hear probably in evidence who this Pedro Blanco was. I shall prove that he was a person extensively engaged in the trade in slaves.

Then the evidence proceeds:--“You would have funds in your hands, arising from some commercial transactions between you and the Havannah merchant or the Cadiz merchant; and Pedro Blanco, upon the coast of Africa would draw upon the credit of those funds, being authorised by the Cadiz or the Havannah merchant?--Yes; and if Pedro Blanco had drawn five shillings beyond that, we should have protested, and in some instances we have protested. With regard to the vessel alluded to in this Report, the Augusta, our part in that concern has been simply that which appears from one of the letters: that is to say, Pedro Martinez, of Cadiz, had made choice of Jennings to buy the vessel, and lent him money to buy the vessel; because Pedro Martinez wanted him to have a vessel in the trade for the purpose of taking his goods to their destination.”

Gentlemen, it is always satisfactory in a case of this kind to know, if a person be charged with any offence, as Mr. Zulueta was, that a copy of the evidence is sent to him; and when a person under such circumstances makes a statement, it is satisfactory to know that if that statement be true, it can be perfectly and easily proved by him, that there is no doubt about it. No doubt evidence must be given sufficient to charge the prisoner with the offence before he can be called upon for his defence; but if he makes a statement, it is satisfactory to know that, if there is a defence, it is absolutely in his power. Mr. Zulueta is one of a firm; there is no difficulty therefore in proving all their transactions. If he has letters limiting him to 500_l._, there are means of proving that beyond all question.

He goes on: “I have now described the three kinds of operations in which we have been concerned, and our knowledge of all of them terminated with the execution of the orders of our correspondents. We had nothing more to do than to follow the orders of the purchaser in shipping the goods. With regard to the purchase of the vessel by Jennings; Jennings is a man who has been employed some time by Martinez; he has served Martinez as a chartered captain, and Martinez having been satisfied with his services, agreed to lend him that money on the security of the vessel, provided it did not exceed a certain amount; which was all the interference we had with it, just to see that a certain amount was not exceeded, 500_l._ or whatever it was.” “Then you were to furnish Captain Jennings with money for the purchase within a limited amount, say 500_l._, credit being given to him upon you by Pedro Martinez, of Cadiz?--That is just the point.” There is no doubt, gentlemen, as it would appear, that the letter I have read to you had been published, and was known to Mr. Zulueta, in which he writes and tells Jennings that they will not proceed in the purchase further than 500_l._ Certainly it was not known at that time that we should have the means of showing them that there was in fact no such limit to the purchase adopted, and that that letter could not be used for the purpose, for Mr. Zulueta does actually give 650_l._ for the purchase of that vessel.

He is then asked--“The Augusta being purchased by money advanced by your house for Martinez and Company, of Cadiz; and she then became the property of Pedro Martinez?--No, she became the property of Jennings; the money was lent to Jennings, and he bound himself by giving security on the vessel to answer for the amount. It is a mercantile operation, which is not unusual.” If it had been a mere loan and mortgage of the vessel, there can be no doubt of the fact; but it is for you to say whether that is the nature of the transaction. “You advanced the money to Captain Jennings for the purchase of the vessel, Jennings transferring the vessel to you as a security for the amount so advanced?--That is just the description of operation, which is a very general one in business.” Then he goes on to describe the transaction: “What is the object of such an operation?--I know very little, or almost next to nothing, of the operations in those parts of the world; but the object of such an operation I apprehend to be this: a vessel chartered with a stranger must be governed by the different clauses of the charter-party; the charterer must be limited to time and to places; and by Martinez having the vessel owned by a man with whom he could have a better understanding than with others, he might always send more advantageously articles from the Havannah to the Gallinas, and from here to the Gallinas. When I say articles, I mean legal articles.” “What advantage would there be in Mr. Jennings taking the articles rather as the owner than as captain under Martinez; was not he commander of the vessel as well as owner of the vessel?--Yes.” “He is made the owner, instead of being captain?--He is the owner as well as the captain of the vessel; he stands indebted to Martinez, and gives a bottomry bond for the vessel.” Gentlemen, the documents I have offered to you, which are the charter-party and the other papers relating to the vessel, do not amount to a bottomry bond; if there was one, there can be no difficulty in the prisoner proving it to you.

Then he is asked: “Does Mr. Jennings upon this transaction make all the freight to his own profit?--Certainly; whatever he does is to his own profit.” That certainly was not the fact; for he was obliged to give up the vessel whenever called upon. “He is not, then, an agent for Martinez?--No, he is a person to whom Martinez lends the money to buy the vessel; whatever profit he derives is his own. Martinez has this advantage, which to a mercantile man is very perceptible, that he has got a charter with a man who stands in that relation towards him which gives him a sort of control over the vessel. If I, as a stranger, charter a vessel for Martinez, and he has spent one, two, or five days more in landing goods than the charter-party allows, I should make a claim for it; I should say, ‘You must keep to the charter.’ Now, when Jennings is indebted to him for the favour of a loan for the vessel, he is not upon a similar footing.” “So that he gets the vessel more under his own control?--Yes; in saying this I am putting an hypothetical case, but I do not know the mind of Martinez himself.”

Then he is asked: “You acted in this transaction merely as agent in the usual manner, as you would have acted for any house in any part of the world?--Exactly; if Martinez had told me, ‘You have got 500_l._ in your hands, pay that to Captain Jennings,’ I should have known nothing more of the transaction; I should have paid the money. But Martinez did not wish to go beyond a certain amount; and he says, ‘You exercise control, do not allow the man to pay more than 500_l._ for the vessel.’” Gentlemen, the letter treats it as a purchase for Zulueta. There may or may not be those directions; if there were, it is in his power to prove them; and it should be recollected that there was not time to get fresh instructions after the declaration that he could not exceed 500_l._ before he paid 650_l._ for it: it is only in a few days. If a man says, when charged with theft, “I bought the goods of such a person,” that is no evidence at all, unless, he proves that he bought them, which he may easily do if it is the fact. So here, if the prisoner says, though this letter, which purports to be the letter of instructions for the actual purchase, limits it to 500_l._, I received directions from Martinez to purchase at 650_l._, that is proved with perfect facility, for it must be by letter, and there are other persons in the firm who can prove it for him. “But beyond the purchase of the vessel and the shipment of the goods, the other arrangements and the subsequent transactions were entirely between Jennings and Martinez & Co.?--Most assuredly; except with the order of Martinez, I do not know how we could have done any thing with him in any way.” That of course will be proved.