Part 44

Mr. _Kelly_. To that I have no objection, and I do not object to the question of my learned friend; but it is the only way I have of warning Captain Hill not to give us other people’s statements.

Mr. Serjeant _Talfourd_. Did you obtain the papers in the first instance?--Yes; on going on board it is my duty to demand them, and I received them on board.

Were there any other papers subsequently given to you by Jennings, or did you receive them all at once?--I received other papers afterwards; I received the ship’s papers in the first instance.

Mr. _Kelly_. Confine your answer to the question.

--It is necessary to explain.

Mr. _Kelly_. No, not at all.

Mr. Serjeant _Talfourd_. You received some papers in the first instance?--Yes; the vessel’s papers on demand. I had demanded them, and on being refused by Captain Jennings to answer a question which he was bound to answer to the commander of a British man-of-war, I insisted upon its being answered, and said I should detain the vessel till it was; and that question was to whom did the vessel--

Mr. _Kelly_. Here I must interpose; and unless Captain Hill is to be the sole judge of what is to be admissible evidence, I ask your Lordship to interpose, or to hear me and dispose of my objection. I cannot complain of my learned friend; he puts nothing but perfectly regular questions. Captain Jennings is not my client here.

Mr. Justice _Maule_. You gave back the ship’s papers to Captain Jennings, and afterwards you insisted upon having these papers, or having some more?--I insisted upon having the question answered to whom the vessel was consigned.

Mr. Serjeant _Bompas_. He has a right to ask that; that is a question which the captain is bound to demand of him, to whom he is consigned.

Mr. _Kelly_. I am quite well aware that in your Lordship’s hands I am quite safe; and if Captain Jennings had committed a murder on this occasion, it would not upon your Lordship’s minds produce any influence; but it is impossible to tell, knowing that Jennings was the captain of the vessel, and that the prisoner at the bar may have had some hand in the fitting it up, what influence it may have upon the minds of the Jury if we are to have conversations or recognitions, supposing there to have been any made by Captain Jennings; and all this done in the absence of Mr. Zulueta, who had no knowledge of it or control over it. If I at all understand it to be your Lordship’s impression, that any thing said or done by Captain Jennings is evidence, having made the objection I have nothing further to submit to your Lordships; but I do conceive, that nothing done by Captain Jennings long after the vessel sailed, and long after the offence, if any, was committed, is admissible. I do feel it my duty to ask, whether evidence is to be received of what was said and done by Captain Jennings months after the departure of the vessel from this country?

Mr. Justice _Maule_. I do not entertain either of those two opinions. You do not put two cases which exhaust all other possible cases, but you say if I am of opinion that every thing said and done by Captain Jennings is evidence, you say no more; you say nothing. But I do not think that the thing is evidence, because Captain Jennings says it; nor do I think we can say, that nothing that Captain Jennings said can be evidence in the course of the trial. But with respect to what we have to decide, it is not whether there is such a large and general rule as that, but whether this question falls within any rule that excludes it. I think it does; I think what Captain Jennings said on that occasion is not admissible in evidence. If Captain Hill demands some other papers from him, that fact may be given in evidence.

Mr. Serjeant _Talfourd_. Did you afterwards receive some other papers from Captain Jennings on board?--Yes, I received a packet.

Mr. Serjeant _Talfourd_. Is the clerk here from the Court of Admiralty?

Mr. _Kelly_. I take for granted that the papers to be produced in Court are the papers given to this gentleman by Captain Jennings.

Mr. Serjeant _Bompas_. Yes, they have been produced before; we shall want them in a moment.

Mr. Serjeant _Talfourd_. What steps did you take upon receiving these papers?--I took the papers on board my own vessel on purpose to read them. It was towards the close of the evening I received them, and I sent an order on board the Saracen that an officer and a certain number of men should be sent to me, and I entrusted that officer with the charge of the vessel.

Did you, in consequence of the view you took afterwards, detain the vessel?--Yes, I detained the vessel.

She was afterwards taken, I believe, to Sierra Leone?--Yes.

Did you prosecute her there?--

Mr. _Kelly_. I must object to all this--

Mr. Serjeant _Talfourd_. I thought that that might be taken as a fact; the evidence of Mr. Zulueta before the Committee is in evidence; and there it is stated that the vessel was condemned, because Captain Jennings had no funds to defend her: I thought I might take that as a fact.

Mr. _Kelly_. No, nothing of the kind; I object to any evidence of the proceedings in Sierra Leone respecting this vessel. Mr. Zulueta, as it appears by what is in evidence, namely, his own statement before the Committee of the House of Commons, was the agent of Messrs. Martinez & Co. for the purchase of this vessel, and afterwards the shipment of the goods, but was no party at all to any proceeding, judicial or otherwise, which took place in Sierra Leone. Now judicial proceedings, in which there is a judicial sentence, are no doubt evidence, and may be very important evidence against the parties to those proceedings; but I apprehend as that was a proceeding to which Mr. Zulueta was no party, they are not evidence against him here.

Mr. Serjeant _Talfourd_. We need not argue that; I only put the question in order to trace the vessel.

Mr. Justice _Maule_. At present he says the vessel was sent to Sierra Leone; that was all, I believe?

Mr. _Kelly_. No, he was going on to talk about the proceedings in Sierra Leone.

Mr. Serjeant _Talfourd_. There were some proceedings there?--She was condemned in the Vice-Admiralty Court there.

Was she sent to England afterwards?--I have seen nothing of her since.

Cross-examined by Mr. _Kelly_.

Though you were for some two or three years cruizing upon the coast of Africa, it was not till November 1840 you landed at Gallinas--I landed upon the island there for half an hour previous to that time.

With that exception, I believe you had not landed there before that?--No.

You have spoken of slave establishments; are there not villages or towns, whatever names are given to them up the river?--It is necessary to mention--

You will greatly oblige me if you will answer the question. Is it the fact, that there are several towns and villages up the river?--It is necessary for me to explain. If you know nothing of the river Gallinas that question may imply more than I can answer. The river Gallinas extends some distance into the interior as I believe: I have been up it ten or a dozen miles, and I know that there is the native village of Mera, another of Tardia, and another of Tinda.

That is exactly what I am asking.

Mr. Justice _Maule_. It is a very harmless statement.

Mr. _Kelly_. I was going to ask him how far he had gone up the river?--At least twelve miles.

As far as you have gone, there were towns?--There were villages.

Was the river navigable further up?--Do you mean further than I went?

Yes.--I cannot say; I should think not from the appearance of it, except by canoes.

It is navigable for canoes, so that the population of the place can pass further up?--I cannot say.

Did you ever see canoes higher up?--I could not see them.

If you were ten miles up, you can say if you saw canoes beyond that distance?--I did not see any. I think from the appearance of the river as high as I went, it is navigable for canoes; but I never saw any there.

You were upon this coast for the protection of British commerce and the prevention of the slave trade?--Yes.

Did not that British commerce consist among other things of the exportation of the merchandise of Britain to various places on the coast of Africa?--Certainly.

Do you not know that British merchandises, sometimes in British vessels, and at other times in other vessels, were exported to a very considerable extent to various parts of the coast of Africa?--Certainly, I do.

Now with respect to the Gallinas, do I understand you to say that no British merchandises were exported there, except for the purposes of the slave trade?--Any British merchandise exported there from the Gallinas?

No, I said imported into the Gallinas.--That question was not asked me.

Do you not know that British merchandise to a considerable extent was from time to time exported to the Gallinas in a lawful manner?--I have known English vessels arrive at the Gallinas and part with a little of their cargo; but I never knew an instance before the Augusta of a vessel arriving at the Gallinas consigned to deliver her cargo there.

I ask you, whether you have known of various British vessels, containing British merchandise, arriving there for a lawful purpose?--I have known one or two English vessels dispose of a part of their cargoes there; but I doubt its being for a legal purpose, because I am satisfied there is no export from the Gallinas but slaves, and therefore I do not think it could be lawful.

You say you have known them land part of their cargo there?--I have known them sell part of it.

And you gave as your reason for doubting whether it was for a lawful purpose, because you are not aware of any merchandise that is exported from there in return?--I said I should doubt whether it was lawful, because there was no produce in exchange for it.

Have you never known an instance of ivory and palm-oil being exported from Gallinas?--Never, and I believe it never was during the time I was there.

I am asking your experience; I will come to your belief presently. You say you doubt whether British merchandise has ever been landed there for lawful purposes; is that so?--I have given my reason for doubting it.

Is it so, that you doubt whether it was ever landed for any purpose?--I am speaking of the time I was there.

I am asking you about your own experience; of course that must be while you were there. You say you have never known any British produce landed that you did not doubt the legality of its purpose; is that so?--Yes; because there was no produce to be lawful given in exchange; no produce that I met with.

Allow me to ask you, was there any thing illegal in the landing of British produce for the use of the native chiefs, or the inhabitants of those towns and villages you speak of?--You are asking me my opinion?

Yes; you say you doubt the legality of it?--

Mr. Justice _Maule_. That is a question of law.

--That is a question I cannot presume to answer.

Mr. _Kelly_. As the gentleman has given me his doubts, I wished to know the reason for them.--I have seized this vessel, because I conceived her freight to be illegal.

Do you remember a vessel called the Gil Blas?--I have seen her.

Did she not land goods at the Gallinas?--Yes: if she is the vessel I mean, she was commanded by a man of the name of Serjeant, and he landed some goods there; he gave me to understand so.

Was the Gil Blas there at the time your vessel was there?--Yes.

And you did not think it necessary to seize the Gil Blas?--No.

Do you know for whom any goods were landed?--I am only speaking from what I understood from him when I learned it. I do not know to whom he delivered them; but he gave me to understand he sold them to Pedro Blanco; but I was not present. I am only speaking to my belief.

Did this man, about that time, make you any present?--Serjeant brought out from Pedro Blanco a dozen fowls and a sheep for me, which I was very glad of. I had never seen Pedro Blanco in my life. I had had no fresh provisions for some time, and I was very glad to accept the fowls and the sheep, which he told me had come from Marseilles in a vessel which had taken some slaves. The sheep I gave to the Judge of the Mixed Commission Court.

How long was the Gil Blas off there?--I do not know, perhaps a day.

Tell me the name of any other vessel that was out there landing goods, which you did not seize?--I do not remember any.

Were you there at the time the Star was there?--I do not remember the name. I do not recollect seeing her. I am sorry I have not the boarding-book here, or I could tell you.

Do you remember the Laburnum?--No.

The Milford?--No.

Do you not know that the Milford landed a large quantity of goods at the Gallinas?--Not to my knowledge.

Or the Sublime?--Not that I know of.

How long were you so near to the river Gallinas, or within it, as to be able to know from your own observation what quantity of goods, if any, was landed?--My cruizing ground was extensive. I was a good deal at the Gallinas, because it was a notorious slave place, but I had many other places to visit.

You are not answering my question. I ask you how long you were within the river, or within sight of it, so as to know what quantity of goods were landed?--It was part of my cruizing ground; sometimes I would be there for two or three days at anchor, then I would be away a month or two, and then back again for two or three months; sometimes I was continually there.

Can you give me any idea of the population upon these banks of the river with which you were acquainted? You say you went twelve miles up; what was the extent of the whole population?--I can only answer from guess. I should say, at Tiendo, the population might be eight or nine hundred; at Tardia, one or two hundred; at Mena, seven or eight hundred. There is another native town, which I do not know the name of, further down the river; but it is not thickly populated by any means.

You say you were stationed upon the coast of Africa for the protection of British commerce: as far as your experience goes, was not that British commerce to the coast of Africa exceedingly serviceable to the natives?--That depends upon what way it is employed. If it is to be employed in the slave trade, it is doubtful whether it is serviceable.

I am not asking you a speculative question of that description: you were there for the protection of British commerce, and it is a plain question. I ask you, in your judgment, founded upon your experience, was British commerce serviceable to the natives upon the coast of Africa?--Are you taking the whole of the coast of Africa, or confining it to the Gallinas?

I am confining it to the parts you are acquainted with?--That was all the coast of Africa, from Portendique round to Madagascar; if you are taking in all that, undoubtedly British commerce must be a great benefit to Africa.

Let me ask you another question, and that I may not take you by surprise, I may tell you that I am taking it from the book in which you gave your evidence; I ask you, from your experience upon the coast of Africa, whether, in many places, a lawful trade was not carried on to a considerable extent by some persons, who likewise carried on the slave trade?--By the same persons, or in the same places?

I say the same persons?--I have not seen the persons trading, and I cannot tell.

Though you have not seen them trading, you may be able to answer the question?--I do not hesitate in telling you, that in many places on the coast of Africa, the same trade was carried on both for slaves and in exchange for the produce of the country, but at the Gallinas I do not think there was any trade of that kind.

In many places, the same trade was carried on in the lawful trade and the slave trade by the same persons?--Yes; lam speaking of hearsay; but I am as confident it was not so at the Gallinas, as one can be confident from having been at the place.

The experience which leads you to think it has not been so at Gallinas is from your own knowledge, being on the spot?--I have already stated I have been a great deal there, and during that time I saw no other trade, nor the sign of any other trade, than the slave trade.

We are here dealing with a gentleman who was never at the Gallinas, and I am asking you a question founded upon your experience: you say you believe no lawful trade was carried on there, as there was at other places; I ask you, whether the knowledge you have acquired, which leads you to suppose that European trade was carried on, was derived from your own knowledge of the persons?--Yes.

Allow me to ask you, are the officers of the navy in your own distinguished situation entitled to share in the value of the vessels which they seize, and which happily for them are condemned?--Yes they are; certainly.

To what extent: suppose you were to seize a vessel and cargo of the value of 10,000_l._, what would be your own share?--I should imagine the vessel in question--

I want to know, if you seize a ship and cargo of the value of 10,000_l._, 5000_l._ each, what is the share, if that vessel is condemned for being engaged in the slave trade, that the commanding officer seizing it is entitled to?--You must tell me the port she is to be condemned in; it makes a considerable difference; if it is in the Mixed Commission Court, that makes a very considerable difference, or if it is in the Vice-Admiralty Court.

Take it as being condemned in the Vice-Admiralty Court?--Half the proceeds go to the Crown, and the other half to the captors, after all the expenses are paid.

You say half goes to the Crown, if condemned in the Vice-Admiralty Court?--This vessel--

I am not asking you about any particular vessel.--It depends upon the different Acts under which she is condemned.

Forget for a moment this vessel the Augusta, if you can, and suppose a vessel under British colours is seized in the African seas by an officer in your own situation, and is condemned in the English Vice-Admiralty Court for a breach of the English law, how is the value divided?--Half goes to the Crown, and the other half, after the expenses are paid, is divided amongst the captors; the admiral gets one-sixteenth, and the captain one-eighth of the remainder.

Suppose she is condemned by the Mixed Commission Court?--I believe it is nearly the same in the Mixed Commission Court; but half goes to the nation under whose flag she is sailing.

The Mixed Commission Court is a court composed of commissioners of two nations, or various nations, and who have to determine the cases of foreign vessels not British, Spanish for instance?--Yes; I think that is the division after the nation under whose flag she is sailing; but under the Act that was passed authorising us to seize Portuguese vessels, and to prosecute them in the Vice-Admiralty Court, I do not know how the proceeds were divided.

It is a Mixed Commission Court which decides upon the Spanish or Portuguese ships; and the British Vice-Admiralty Court decide upon a vessel under the British flag?--Yes.

Are not Spanish vessels prohibited from being navigated by British captains? Did you ever see a vessel under the Spanish flag navigated by a British captain?--I never recollect seeing one.

Now, as to the vessel in question, the Augusta; you say when she bore the name of the Gollupchik, she was in every respect fitted up for the slave trade?--Not in every respect; I do not think she had a slave-deck laid.

I correct myself: she was in many respects fitted up for the slave trade?--Yes.

And that led you to seize her?--Yes.

When she came to England, and was claimed by the Russian authorities, do you know whether they succeeded in their claim?--I know nothing of her; I sent her to England.

You do not know whether she remained in English hands, or was delivered up to the Russian government?--I was on the coast of Africa at the time. I have received nothing from the Vice-Admiralty Court in respect of her.

To a certain extent, to the extent to which you have described her, she was, when you seized her under Russian colours, fitted up for a slave vessel?--Yes.

When she bore her name of the Augusta, and was in the hands of Captain Jennings, was she then fitted up for the slave trade?--Not in my opinion; and I did not seize her for that, but for her freight: at least I saw nothing; I do not know what might be under her cargo.

I did not ask you what you did not see; it is the very thing I have been objecting to a hundred times over: I ask you what you did see. You have said two or three times that you were three years upon this coast; to what extent of coast did your cruizing extend?--From December, 1838, until April or May, 1841. The Gallinas was within my station in the first instance. I had charge of the station under Admiral Palmer. Then there was another officer appointed.

I do not wish to go into the whole history of your service; but have the goodness to confine yourself to the question: over what extent of coast did the whole performance of your duties extend?--It depended upon the nature of the orders I received.

Was it altogether 1,000 miles of coast or 500 miles, from 1837, when you began, till 1841? Was the whole extent of coast, over which at various periods your service extended, 1,000 miles?--From October, 1837, till December, 1838, I was on the coast at different periods from Sierra Leone as far as Madagascar: but from December, 1838, until I left the coast of Africa in June, 1841, I was confined to the coast between Cape Palmas, Portendique, and the Cape de Verd Islands: from December, 1838, till June, 1841--

What extent of coast is that?--

Mr. Justice _Maule_. How many degrees of latitude is it?

--It is about 1,000 miles I should say.

Mr. _Kelly_. During that period you acquired some experience, I presume, in the nature of the British commerce carried on upon the coast of Africa: let me ask you, whether the sort of articles of British commerce, exported to Africa during that period, were not gunpowder, muskets, tobacco, brandy, and cotton goods?--Oh, yes.

And iron articles?--I do not think it is possible to distinguish the articles intended for the slave trade, from the articles intended for legal commerce.

Mr. Justice _Maule_. The articles sent in both instances are welcome to the African consumers?--Yes; I am speaking of the West Coast of Africa; I cannot speak to other parts of the coast; I do not think it is possible to distinguish them.

What people want in Africa is determined by that which they receive, and whether they pay for it in coin or in produce only, the same thing would be welcome?--Yes.

Mr. Justice _Maule_. Just as if you were to ask, why do people give bank notes in England for guineas or sovereigns: it is just what they want.

Mr. _Kelly_. With regard to these articles you have mentioned, when exported to various parts of Africa, is the return made sometimes in doubloons or money, and sometimes in ivory, dye-wood, palm oil, and other commodities produced there?--If you will let me answer the question in my own way, I can do it more satisfactorily. Where goods are landed, and doubloons are obtained in exchange, the doubloons come from the Spaniards, and I never knew a Spaniard engaged in any trade upon the coast of Africa but the slave trade: when you get produce in exchange, it is more likely you get that from the natives.

Do you mean to say, that the Spaniards who trade upon the coast of Africa do not give produce for the merchandise that goes there; I am not speaking merely of the Gallinas?--I think I know of but one, and I do not know whether he is a Spaniard or not. I can mention his name, it is Carrote; I think he exported palm oil as well as slaves; but he told me he was an agent to Pedro Blanco.