Part 45

Do not tell us what he told you: what I ask you is, whether a return is not sometimes made in ivory and palm oil, and dye-woods?--The question calls for an answer which I cannot give in a satisfactory manner.

You do not do justice to your own understanding.--I wish to give you every information.

You never saw any of the house of Zulueta & Co. in the course of your travels on the coast of Africa?--Never to the best of my recollection.

Do you know any of them?--No: I saw Mr. Zulueta before the Committee of the Privy Council for the first time.

Re-examined by Mr. Serjeant _Talfourd_.

You have been asked if you saw any slave fittings when you seized the Augusta; did you take up any of the cargo?--No, I did not; I went into the hold.

Do you know whether the slave fittings were what could be taken to pieces and stowed away?--The hatches were grated when I first seized her. When I seized her the second time she had new hatches and no gratings at all. I saw nothing to induce me to believe she had slave fittings when I seized her as the Augusta, though I had heard that.

Mr. Justice _Maule_. The learned Serjeant is asking you not what you heard, but what you looked for; you searched to see if there were slave fittings?--Yes; so far as going down into the hold. I did not disturb the cargo; I do not know what was in her.

You did not find any leagers?--No.

Are you able to say whether she was or was not fitted for the slave trade?--If she was equipped for it I should have seized her at once; but she was not.

You saw enough of her to see that she was not equipped for the slave trade?--Certainly; she had not slave equipments, leagers, hatches with open gratings, or irons, or coppers, or any of those things.

Mr. Serjeant _Talfourd_. How long were you on board the vessel?--The first day a couple of hours, and the next day about the same time. I was on board her three or four times.

Can they get the equipments after they come into port when they discharge their cargo?--Yes, in many places they can; I can give you an instance of an American vessel--

Can the fittings be obtained there after the discharge of a vessel like the Augusta?--

Mr. _Kelly_. Where?

Mr. Serjeant _Talfourd_. At the place where the cargo is discharged.--The only way in which I can answer that question is this; if an agent at Gallinas expects a slave vessel to come out without equipments, he may take care to procure them from other vessels, and may have them perfectly ready: I can give an instance of that--

Mr. _Kelly_. Never mind that.

Mr. Serjeant _Talfourd_. How long would it take to put on board slave equipments in a vessel of the size of the Augusta?--A very short time: they may send out the water-casks filled with water in two or three canoes; and if they do not choose to lay down a slave deck, they put mats upon the casks, and it is done in a very short time. They may embark 500 slaves in a couple of hours or upwards and be off.

_Foreman of the Jury._ One of my brother jurors wishes to ask this question of the witness through your Lordship: when he went on board the Augusta, whether he found any thing on board her to warrant her being supposed to be fitted out as a slave vessel?

Mr. Justice _Maule_. He says he did not; that has been pursued for some time; and now in answer to questions put to him, the gentleman was saying, though she was not fitted out in that way, that her goods might be landed, and slaves might be put on board, in a few hours.--I can say--

Mr. _Kelly_. I object to these speeches: I object to this gentleman, who thinks because he has seized this vessel that if any thing falls from the Jury, or from one of her Majesty’s judges, that he may begin making a speech. There has been a great deal said that is not evidence: that every body must feel; but it is impossible to stop him, although a gentleman as respectable as himself is under trial.

Mr. Serjeant _Talfourd_. You have been asked about the share which the captain has in the capture of a vessel of this description; do you accurately know what share you would have under the circumstances?--Yes; what I have stated is the share: half the proceeds go to the Crown, and after the admiral has had his share, the remaining half is divided.

What would be your share of this vessel the Augusta?--I believe the proceeds amounted to about 3,800_l._; one-half goes to the Crown, and there are the expenses of the appeal to the Judicial Committee of the Privy Council, which are not paid.

Have you got any thing?--No, not a sixpence.

Do the expenses swallow up?--

Mr. Justice _Maule_. 1,900_l._ is the half; the captain gets one-eighth of fifteen-sixteenths?--There are several hundred pounds to come out of it for the Privy Council appeal, that has not been paid yet.--

Mr. _Clarkson_. You must not say any thing, unless you are asked a question.

Mr. _Kelly_. I shall let him talk on till he is tired after what I have said.

Mr. _John Brown_ sworn. Examined by Mr. _Payne_.

Do you come from the Admiralty Court?--Yes.

Do you produce any documents?--Yes, I do.

Mr. Serjeant _Talfourd_. The first document we want is the letter of the 20th August, 1840, from Zulueta & Co. to Captain Jennings?--Will you allow me to hand you a schedule of the different documents; they are numbered according to that. (_The Witness handed in the same._)

Mr. _Payne_. Nos. 14 and 17 are what we want. (_The Witness handed in two papers; one being a letter, dated 20th August, 1840._)

Mr. Serjeant _Talfourd_ (_to_ Captain _Hill_.) Look at this letter and see if it is one of the letters you found on board the Augusta? (_handing the same to the Witness_.)--Yes, that is one; there is my handwriting upon it.

(_To_ Captain _Hill_.) Look at this also (_handing another paper to him_), the signature appears to be cut off, and say if it is in the same state as when you found it?--Yes, it is in the same state as when I found it on board the Augusta; the signature was then cut out.

Mr. Serjeant _Talfourd_ (_to_ Mr. _Brown_.) Now produce the charter-party, Nos. 11 and 12. (_The Witness produced the same._)

(_To_ Captain _Hill_.) Just look at these two papers (_handing them to the Witness_), and see if they are two of the papers which were found on board?--Yes, they are.

Mr. _Kelly_ (_to_ Captain _Hill_.) You have looked at these three or four papers, and you say they are the papers you found on board the vessel?--They are papers given to me by the master: I did not find them by searching.

Were they given to you on board the vessel?--Yes, by the master.

Did you put any mark upon them?--Yes, you will see a mark on the back; that is what I looked at in the first instance when they were handed to me.

Is this it? (_pointing to a mark on the paper_.)--It is a pretty large number upon the paper: that is my handwriting.

Mr. _Abrao De Pinna_ sworn. Examined by Mr. _Payne_.

Will you look at this letter, and tell me if you know the handwriting of the postscript at the end? (_handing a paper to the Witness_.)

Mr. _Kelly_. What is the date of it?--24th of September, 1840.

Mr. _Payne_. Whose handwriting is that postscript?--I presume it to be Mr. Zulueta’s.

Do you believe it to be?--Yes.

Mr. _Kelly_. Which of them?--The father.

Mr. _Payne_. Do you believe it to be his writing?--Yes.

Mr. Justice _Maule_. You say the father; is that the prisoner?

Mr. Serjeant _Bompas_. No, the father of the prisoner.

Mr. _Payne_. Look at that (_handing another paper to the Witness_), and tell me if you know the handwriting; that is, the 20th of August?--It looks like the handwriting of Zulueta the son.

Mr. Justice _Maule_. What is the date?

Mr. _Payne_. The 20th of August, 1840. Just look at this memorandum on the charter-party; look at the signature to that charter-party: do you know the handwriting of that document?--I suppose that one to be the signature of Mr. Zulueta the son.

Do you believe it to be so?--Yes; the other I do not know.

(_The Letters and the Charter-party were handed in._)

Mr. _Payne_. Do you know the handwriting of the body of that first letter of which I showed you the postscript?--I did not pay sufficient attention to it. With your leave I will look again. (_It was again handed to the Witness._) I do not know it.

Cross-examined by Mr. _Kelly_.

I believe you are the notary to the Spanish consul in this city?--I am.

Have you known the house of Zulueta for any length of time?--For some years.

During that time has the prisoner Pedro de Zulueta, like the rest of his firm, maintained a high character for integrity and propriety of conduct?--The highest, the very highest character; and unimpeachable to the best of my knowledge.

To the best of your knowledge, from their character and the character of their dealings, do you believe them to be wilfully capable of violating the law?--

Mr. Serjeant _Bompas_. No, I object to that question.

Mr. _Kelly_. Has their character been that of violators of the law, or the reverse?--As far as my knowledge goes, I should say that it was perfectly impossible that the house of Zulueta & Co. should be violators of the law.

Have you ever had any transactions in business with that house?--Yes.

Do you know that they act as agents for various houses in Spain, the Havannah, and other places?--Yes.

Do you know that they have for a great many years carried on business to a great extent indeed?--Yes, I do.

Perhaps you may happen to know that vessels under the Spanish flag cannot be commanded by English captains?--

Mr. _Payne_. Do you know any thing about it?

Mr. _Kelly_. Do you know that?--My impression is, that that is the case.

How long have you been a notary?--I have been admitted about twenty years.

Are you a native of Spain?--A native of this country.

Where did you acquire your knowledge of the Spanish language?--In this country.

Have you had a good deal to do with the commercial and maritime affairs of Spain?--Yes, very largely; my connexion is almost exclusively Spanish.

In your experience, have you ever known a Spanish vessel, or a vessel under the Spanish flag, commanded by an English captain?--Never.

Re-examined by Mr. Serjeant _Bompas_.

Who are the partners in the firm of Zulueta, do you know?--The father Don Pedro Antonio Zulueta, and the son Don Pedro Gonzalez Zulueta. I do not know that I can go any further; I do not know that there is another partner.

Mr. _Kelly_. There is another son Moriarte?--I do not know that he is a partner; I believe he is.

Mr. Serjeant _Bompas_. Besides being a notary, do you carry on the business of a merchant at all?--No, not in the least.

How do you become possessed with your knowledge?--In my notarial capacity I have often had to prepare bills of sale of ships, and various documents connected with shipping, and that is the only way I obtain my information.

Mr. Serjeant _Bompas_. We will read these documents; the one signed by the prisoner at the bar first of all.

Mr. _Kelly_. Take them one at a time; they stand under very different circumstances. Let me look at it. (_It was handed to Mr. Kelly._)

The same was then read, dated London, the 20th of August, 1840, signed “Zulueta &. Co.,” and directed “Captain Jennings,” Portsmouth.

“Sir,--In reply to your favour of yesterday, we have to say that we cannot exceed 500_l._ for the vessel in question, such as described in your letter, namely, that excepting the sails, the other differences are trifling from the inventory. If you cannot therefore succeed at those limits, we must give up the purchase, and you will please act accordingly.”

Mr. Serjeant _Bompas_. We propose now to read the one in which there is a postscript from the father.

Mr. _Kelly_. I feel that this letter is no evidence against the prisoner at the bar. It is a letter written in a handwriting not proved; the signature does not appear at all; but the postscript was in the handwriting of the prisoner’s father. I need hardly say that that is no evidence against the prisoner; but I have not the slightest objection to their reading it. I only add these few words, that because I consent to this being read, it is not to be taken that other documents, if there are any others under different circumstances, are admitted.

_The following Letter was read_:--

[“London, 26th September, 1840,” the signature cut off, addressed Captain Thomas Jennings, Portsmouth.

“Dear Sir,--We have received your letter of yesterday, whereby 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 maybe 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.”

Postscript. “According our Liverpool house notice, you will go there to the Salt-house Dock.”

Mr. Serjeant _Bompas_. Now put in the charter-party, and the paper referred to in it.

Mr. _Kelly_. Put in one at a time; you cannot read two documents at a time.

[The same was handed in, dated London, 19th October, 1840, signed Thomas Jennings; for Pedro Martinez & Co., of Havannah, Zulueta & Company.

Mr. _Kelly_. All these documents appear in the printed Appendix, which it would be convenient to hand up to your Lordship.

Mr. Justice _Maule_. Is that the joint Appendix on the appeal to the Privy Council?

Mr. _Kelly_. Yes.

Mr. _Clarkson_. The number of the document is 11, on page 5.

_The same was read as follows_:--

“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 & Co., of Havannah, merchants: 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 the said 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 sums, and in any settlement for such freights, the said advances to be deducted from the vessel’s earnings.”

Mr. Serjeant _Bompas_. The next document is the acknowledgment--

Mr. _Kelly_. I do not understand how this addition to the charter-party is evidence.

Mr. Justice _Maule_. It is at the top of page 6?

Mr. _Kelly_. It is a memorandum: you propose to read this?

Mr. Serjeant _Bompas_. Yes.

Mr. _Kelly_. I do not see the importance of it; but I do not see how it is evidence.

Mr. Justice _Maule_. Do you object to it?

Mr. _Kelly_. Yes, my Lord. I will not say any thing of the purpose for which it is offered in evidence, or the object of it. The charter-party is signed by the prisoner at the bar himself, on behalf of the house, as agents for the house of Martinez; but with regard to this document, which my learned friend calls a “memorandum of charter-party,” it is the sheet of paper in my hand, signed “Thomas Jennings,” and signed by nobody else: it is not shown to be in the handwriting of the prisoner, nor ever to have been in his hands, nor that he had any thing to do with it: it is a paper signed by Captain Jennings, and found by Captain Hill on board the vessel, or delivered to him by Captain Jennings on board the vessel. What evidence is that against the prisoner at the bar? I do not know what the paper is worth; but I do not know how your Lordships can admit it. It may be a document treasonable in its nature, or it may have been written the day before it was delivered to Captain Hill.

Mr. Justice _Maule_. There is some doubt about this: our opinion is, that in the present stage of the case this document is not admissible. There is certainly a reference in the charter-party to the captain being indebted to the charterers in a certain sum, acknowledged elsewhere, the freights being held as a lien against those debts. This charter-party is dated London, 19th of October; the paper proposed to be put in evidence is dated the 21st of October, so that it may not have been in existence at the time when the first paper was signed; it is therefore hardly to be referred to as a document mentioned in the charter-party. Whether something may arise to make the custody of Mr. Jennings evidence against Mr. Zulueta, is a question not now necessary to be decided: but the question is, whether in the present stage of the cause this is admissible. There is a reference certainly to an acknowledgment elsewhere. The proper and natural custody of that acknowledgment would be either the house of Zulueta & Co., or Pedro Martinez & Co.; it is an acknowledgment of a debt to them, and it is found in the custody of the debtor; it is proved by the signature of Zulueta & Co., and they or their principals are the parties who would have the custody of it; they may produce it if they wish to repel any inference which may arise from it, but at present we think it not admissible in evidence.

Mr. Serjeant _Bompas_. We call for that paper mentioned at the end of the memorandum; we have given you notice to produce it.

Mr. _Kelly_. If you mean to call for any paper, just put in your notice, so that we may see what document it is.

_William George White_ sworn. Examined by Mr. Serjeant _Bompas_.

Just take that in your hand. (_Handing a paper to the Witness._) Are you a clerk to Sir George Stephen?--I was employed by him.

Did you serve a copy of that notice upon any body, and upon whom?--Yes, I did serve a copy of it.

Upon whom?--Upon Messrs. Zulueta and Messrs. Lawford & Co., and Mr. Jennings, or left it at the office: I either served it on the parties, or left it at the office.

Cross-examined by Mr. _Kelly_.

There was a question put to you, which my learned friend did not give you time to answer; are you a clerk to Sir George Stephen?--No.

How came you to be employed in this matter?--I happened to be in his office, and he asked me to serve it.

What are you?--A clerk in a wine-merchant’s counting-house.

When did you serve this?--Will you allow me to look at it again? By all means. (_It was again handed to the Witness._)--I served one copy on the 20th on Messrs. Zulueta & Co.

The 20th of this month?--Yes, and the 21st on Messrs. Lawford & Co., and on the 23rd upon Thomas Jennings: it was not signed or dated.

You have not answered the question; I wanted to know when you served that paper, of which that is a copy, either upon Mr. Zulueta, or Messrs. Lawfords, his solicitors?--On the 20th of October on Messrs. Zulueta & Co.: the copy was without any date or signature.

Who gave you it to serve?--I had it from Sir George Stephen.

Did he tell you why it was without any signature at all?--No.

He desired you to go and serve it?--Yes.

Now I perceive that that one has a signature; when did you serve upon either Messrs. Zulueta & Co., or Messrs. Lawford & Co., a notice with a signature?--Upon the 26th of October I served all three with a copy.

That was yesterday; what time was it?--I think that Mr. Jennings was about--

I am not asking you about Mr. Jennings; but upon my client, Pedro de Zulueta, or Messrs. Lawford, what time did you serve it upon them?--About five o’clock I served it.

Upon whom?--Not upon Mr. Zulueta himself.

Upon the solicitors?--No; not upon the solicitors themselves.

I am speaking of the one with a date and a signature; when did you serve either Mr. Zulueta or his solicitors?--The 26th.

Was that yesterday? Does your recollection enable you to say?--

Mr. Justice _Maule_. It was either yesterday, or yesterday twelve months, or two years ago?--It was the 26th of October, 1843.

Mr. _Kelly_. Will you tell me at what hour you served it?--Upon whom?

Upon either Messrs. Lawford & Co. or Messrs. Zulueta. First, did you serve it upon either? Leave out Captain Jennings. Did you serve a copy of that paper, signed and dated, upon either Mr. Zulueta or Messrs. Lawford?--No; I did not.

You only served it upon Captain Jennings?--Yes; that is all.

Mr. Justice _Maule_. As far as the signed paper goes, there was no service upon Mr. Zulueta?

Mr. _Kelly_. No.

Mr. Justice _Maule_. He did serve something upon them which was not signed.

Mr. _Clarkson_. Nor dated.

Mr. Justice _Maule_. Let us look at it; it may be a very good notice, though not signed. (_It was handed to his Lordship_).

Mr. _Kelly_. I am not going to raise any objection to it; but I shall make some observations upon it.

Mr. Serjeant _Bompas_. The name was in the instrument, though it was not signed by Sir George Stephen?--Yes.

Mr. _Kelly_. Was that so?--Yes.

When did you serve a copy besides that?--I served a second copy of it at the general office of Zulueta & Co., and you will find the words “General Office,” written upon it.

Mr. _Kelly_. Now just refer to your notice, to produce any document you propose to call for?

Mr. Serjeant _Bompas_. When you say you left it without date and signature, was it served in this way, the blank day of blank, with Sir George Stephen’s name upon the back of it?--Yes.

Mr. Justice _Maule_. The non-signature of a notice to produce is not worth inquiry; a dot to an _i_, or a cross to a _t_, would be equally available.

Mr. _Kelly_. It is my learned friend who renews the subject. I ask him to point out the document.

(_The Notice to produce was read, specifying among other documents, the additional memorandum of Charter-party, &c._)

Mr. _Kelly_. I have no such document. I do not know of its existence.

Mr. Justice _Maule_. You call for the document referred to at the end of the memorandum of charter-party?

Mr. Serjeant _Bompas_. Yes.

Mr. _Kelly_. No, my Lord, they call for it by a particular description; it may be that document; but according to that description, as far as I know or am instructed, we have not got it. The document referred to in the terms of the charter-party is supposed to be an acknowledgment of the debt from Captain Jennings to Martinez and Co.; that might be in the possession of Messrs. Zulueta--