Part 46

Mr. Justice _Maule_. It would be in the possession of Zulueta & Co., or Martinez & Co.?

Mr. _Kelly_. Yes, my Lord; if in the possession of Martinez, of course I have not got it.

Mr. Justice _Maule_. You call for the additional memorandum of charter-party of the 21st of October 1840?

Mr. Serjeant _Bompas_. Yes, or the 19th of October.

Mr. _William Thomas_ sworn. Examined by Mr. Serjeant _Bompas_.

Are you a clerk in the bank of Messrs. Glyn, Mills, & Co.?--Yes.

Are they the bankers of the prisoner Mr. Zulueta?--Yes, they are.

Did you pay any sum of money of 650_l._ for him upon his account, in August 1840? (_The Witness referred to a book_).--On the 29th of August.

Was there a cheque?--A cheque or bill; I cannot say which.

Mr. _Kelly_. I presume that is kept by yourself, and in your handwriting?--Yes.

Mr. Serjeant _Bompas_. You return the cheques?--Yes, we do.

Mr. Serjeant _Bompas_. We have given them notice to produce any cheque of that date.

Mr. _Kelly_. Now, what is it you call for?

Mr. Serjeant _Bompas_. For that cheque for 650_l._

Mr. _Kelly_. Does it purport to be a cheque signed by the defendant?--I cannot tell that, it might be a bill made payable upon our house on their account.

Mr. _Kelly_. I am quite prepared to produce any document in the handwriting of the prisoner at the bar, which is in his possession; but as to any document that may bear the signature, or be in the handwriting of any other member of the firm, that I shall not produce unless that member of the firm is made a witness to show the circumstances accompanying the document; unless it passed through the hands of the prisoner. If you prove any cheque in the handwriting of the prisoner, I will produce it if I have it, and if not, I shall not object to secondary evidence of it.

Mr. Serjeant _Bompas_. You say that that is in your writing, have you any book by which you can ascertain whether it was paid through a cheque or bill?--No, certainly not.

None whatever?--No; I could not tell whether it was a cheque or a bill. I cannot tell which; there is no book in our house that will tell us that.

On whose account was it paid?--

Mr. _Kelly_. I object to that: I do not want all the payments made by this witness; we are upon the question if you can give secondary evidence of the cheque.

Mr. Serjeant _Bompas_. I am going to see on whose account it was paid.

Mr. _Kelly_. I object to any evidence of bankers paying a sum of money on account of the firm, or on account of any other person, unless the document is in the handwriting of the prisoner at the bar, or the payment proved to have been made to his orders. What is to prevent, by the order of the partner in Spain, of which he never heard, this person being charged with felony?

Mr. Serjeant _Bompas_. I submit that the evidence is sufficient; here is an express statement in the printed evidence.

Mr. Justice _Maule_. It is not in evidence yet.

Mr. _Kelly_. I consider it in evidence; my learned friend may refer to any part of that book; I consider that that is in evidence now.

Mr. Justice _Maule_. Very well.

Mr. Serjeant _Bompas_. He first states he managed all the business. In answer to Question 10432 he was speaking about the transactions with Africa, he was examined about the Augusta, and Mr. Kidd, he says, “My father knew there was such a man upon the coast, but I did not know even that, though I have managed all this business.”

Mr. _Kelly_. That relates to a business upon which another insinuation was made, and which has no more to do with it than this.

Mr. Serjeant _Bompas_. My learned friend assumes that this has no relation to it; he is quite mistaken in that. The question is, what is the meaning of the term, “this business,” it is not the business of the man of the name of Kidd; he says he never heard of him; but the question is, whether it is not the business of the Augusta and the trade with Africa; he says he manages all that business. I submit, if he takes upon himself to say he managed “all this business”--

Mr. Justice _Maule_. What are the words?

Mr. Serjeant _Bompas_. “All this business.”

Mr. Justice _Maule_. I think the fair inference is, that the Mr. Zulueta, who came before the Committee, was the person who knew best about the matter suggested against them relating to the Augusta, and he came to speak to the matter of the Augusta, either solely or among other things; if so, “this business” must mean that.

Mr. _Kelly_. No, not if your Lordship looks at the context; he comes forward voluntarily, understanding there were charges against his house, not because he knew more about it than any body else, for he knew the least about it, but because he spoke English best. There is nothing from which you can infer in this evidence that Pedro Zulueta knew all that had passed through the house.

Mr. Justice _Maule_. It is not very satisfactory to select a man who can speak English, but did not know much about the matter.

Mr. _Kelly_. I mention that in answer to your Lordship’s observation, “that he knew most about the matter.”

Mr. Justice _Maule_. The Committee must have taken that to be the fact.

Mr. _Kelly_. If your Lordship thinks it must fairly be supposed to refer to that matter, then the question is whether that makes it evidence; I will call your Lordship’s attention to what he says: The _Chairman_ asks him, “Is there any other part of the evidence which has been given that you wish to observe upon?--It is asked here in question 5086, ‘Who was he?’ The answer is, ‘The name is mentioned in the Parliamentary Papers as being connected with the purchase of a slave vessel, Mr. Kidd; and it is mentioned in connexion with that of Mr. Zulueta, of London.’” There was some former transaction of the purchase of a slave vessel, in which Mr. Kidd was a party. He goes on to say, “Now, as to Mr. Kidd, the very first thing I ever knew or ever heard of his name, was to see it here. I never heard of his name at all. I never had a letter from him or through him, or knew any thing of the man whatever. That is with regard to myself. With regard to my partners, I can say the same; I have been making inquiries about it. My father knew there was such a man upon the coast, but I did not know even that, though I have managed all this business.” What business can that relate to, but the business in which Mr. Kidd’s name was mentioned, which was the purchase of a slave vessel?

Mr. Justice _Maule_. I should think not: his father knew there was such a man upon the coast; “I did not know that, although I had that management of the business” which would lead me to know all the men on the coast, that is to say, all the coast business; that is the way I understand it, I confess.

Mr. _Kelly_. I cannot conceive that it is so; but it is for your Lordships to decide. Supposing that it is, I do not know how that makes this entry in the book evidence. Your Lordships will look at the next question: He is asked, “You have no connexion with Mr. Kidd in any way?--No; nor any knowledge of him.” Then he goes on with the same business; he was never alluding to the principal business, that of the Augusta.

Mr. Serjeant _Talfourd_. You will find he gives there an account of the whole transaction. Mr. _Forster_ says, “You advanced the money to Captain Jennings for the purchase of a 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.”

Mr. Serjeant _Bompas_ (_to_ Mr. _Thomas_.) Whose handwriting is that?--The handwriting of a Mr. Daniel, in our office.

Mr. _Kelly_. I submit that this relates to the business of Mr. Kidd.

Mr. Justice _Maule_. It struck me otherwise; but at the same time you seem so extremely satisfied with your own view, and my view is just as it struck me, that you stagger me by your positiveness.

Mr. _Kelly_. I should not like your Lordship or the Jury to be misled as to the amount of interference by this gentleman in the business. Suppose it is so, that he had the management of the fitting out of the Augusta, how does that make evidence of an entry in the banker’s book of the payment of a sum of money? He cannot say to whom he paid it, or on whose account? How can that make it evidence upon a charge of felony? I do not know the nature of it, but I am quite sure it is quite consistent with Pedro Zulueta, having done all he has admitted to have done before the Committee, that he never heard of that payment.

Mr. Justice _Maule_. In whose handwriting is the signature to the charter-party?

Mr. _Kelly_. It is the signature of the prisoner that has been read.

Mr. Justice _Maule_. I do not think you are in a situation to put in this evidence. This witness paid across the counter to somebody, upon something which they produced, a sum of money, and the thing then produced you call for.

Mr. Serjeant _Bompas_. We call for the document upon which it was paid, and we are going to take another step to show that the money so paid was applied to this vessel. Your Lordship has got the statement that they advanced the money for the purchase of the vessel.

Mr. _Kelly_. There is no doubt that the house of Zulueta & Co., on account of Martinez & Co., paid for this ship. My learned friend says he calls for that document. He calls for a document he has not shown to be in existence. Let him prove the existence of the cheque; and then the question arises, whether secondary evidence is admissible.

Mr. Serjeant _Bompas_. Can you say whether it was paid through a cheque or draft?--No, it is impossible.

Mr. Justice _Maule_. He says it was paid through an acceptance upon their house, or upon a cheque upon their house; that it was something purporting to come from Zulueta & Co., but that does not bind the prisoner; that cheque so purporting to come from Zulueta & Co. was sent back to Zulueta &, Co., and notice was given for the production of it?

Mr. _Kelly_. Yes, my Lord, notice has been given to produce the cheque or draft; that does not mean a bill of exchange accepted at Cadiz, where they had a house, or at Liverpool, where they have another house.

Mr. Serjeant _Bompas_. Cheque or draft would apply to a bill.

Mr. Justice _Maule_. If it refers sufficiently to the contents of it.

Mr. _Kelly_. Read the words of the notice, and we will see.

Mr. Serjeant _Talfourd_. “And also a certain draft or cheque,” &c. (_Reading the terms of the notice._)

Mr. _Kelly_. I make two objections to this evidence; the first is, that no such cheque is proved to be in existence; and secondly, if there were, such cheque is not proved to have been in the handwriting of the prisoner at the bar, and therefore it is not admissible. 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.

Mr. Serjeant _Bompas_. To try you, I call for the paper referred to in the charter-party.

Mr. _Kelly_. 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.

Mr. Serjeant _Bompas_. I call for that letter referred to in the charter-party.

Mr. _Kelly_. Put the documents upon the table.

Mr. Serjeant _Bompas_. You need not go through that performance. Will you produce the receipt mentioned in the charter-party?

Mr. _Kelly_. I have said I have it not.

Mr. Serjeant _Bompas_. There is a letter mentioned here: “We have received your letter of yesterday.” Will you produce that? Captain Jenning’s letter of the 25th of September, 1840?

Mr. _Kelly_. Certainly.

Mr. Serjeant _Talford_. Mr. Jenning’s letter is in English.

Mr. _Kelly_. Yes; I know that.

_The same was produced and read, as follows_:--

“Portsmouth, 25th September, 1840, Messrs. Zulueta & Co.:-- Gentlemen, I am in the receipt of your favour of the 24th instant, and beg leave to acknowledge the favour you have conferred on the house of Messrs. Grant, Gillan, and Medley, and have acknowledged the same to the parties mentioned; at the same time beg leave to mention this port is different from many ports in England for men, and we have to give the month’s advance under favour in consequence of the many vessels of war wanting men, so that I have agreed with the men as I consider you will deem necessary; and from the heavy charges of the different tradesmen, and all other expenses I formerly mentioned, I do not consider the sum you have remitted sufficient to clear this port: under such circumstances, you will please to favour me with your advice by return of post, who I shall draw upon for the remaining balance, and hoping my accounts, when seen, may meet your approbation, I remain, your obedient humble servant,

THOMAS JENNINGS.”

Mr. Serjeant _Bompas_. This is in answer to that.

Mr. Justice _Maule_. The letter of the 26th of September is the answer:--

“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 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.”

Mr. Serjeant _Bompas_. That is the directing him to go to Liverpool.

(_To_ Mr. _Thomas_.) On the 29th of August; have you a memorandum of the notes you paid on that day?--Yes.

The numbers of the notes?--Yes I have.

Mr. _Kelly_. While we were discussing this point, my learned friend called for something else, which I now produce; I do not know that your Lordships decided it. I had objected to the entry in the banker’s book being given in evidence against Mr. Zulueta, unless it was proved that that entry was in some way or other made known to him.

Mr. Serjeant _Bompas_. I am going to show that certain notes were paid to some person or other, and paid for this vessel; and these letters are evidence to show that he was the owner of the vessel.

Mr. Justice _Wightman_. There is a certain document taken to the bank, and notes paid for it.

Mr. _Kelly_. Then I object upon this ground. This is an indictment against Pedro Zulueta. I have not the least objection, that where documents are in existence, and members of the firm are connected with them, that they should be called to explain them; but I do object to any thing being given in evidence, done under the order of another person, unless it is proved to have come home to the knowledge of the prisoner. There is no proof that that entry ever came home to the prisoner, that he ever saw the notes, or that it was by any order signed by him or known to be his signature that these notes were paid, and therefore I object to its being any evidence against him. One can suppose a case like this. It is entirely unlike a mercantile transaction, where notice to one is notice to all the firm. If an action was brought against any one, a document affecting mercantile matters, the act of one partner is the act of all; and where it is a civil action or liability, the act done by the father would be evidence against the son, his partner, and that, though the son was not in England at the time, but was in Spain, and had no notice of the proceedings. Now let us try that: here is a transaction respecting the payment of bank-notes, and if, because it is supposed to be done by the house of Zulueta, it is evidence against this particular member of the firm, without any proof that it was done by him, it would be equally evidence against a member of the firm who was in Spain during the whole of the time; and it might have pleased Sir George Stephen to have selected him as a subject of prosecution; he might have been indicted for equipping this vessel and the other acts charged in the indictment; and if an act done by one member of the firm is evidence against another, it would be evidence against him. I apprehend that, supposing this payment of money to have any thing to do with this transaction, which I apprehend does not appear, unless it is proved it was done with the defendant’s knowledge or by his order, it is no evidence against him; and no act done by another member of the firm is any evidence against him. There is no proof that he saw these notes, or gave any order; and under these circumstances, upon this criminal charge, I submit it is not evidence against him.

Mr. Serjeant _Bompas_. I am aware of the necessity of the accuracy of the evidence to convict a party on a criminal charge; but I apprehend there is abundant evidence to establish that the notes given were the notes paid for the purchase of the vessel. It is not a case where you have no evidence of Mr. Zulueta having taken a share in the purchase of the vessel; you have evidence of his control over the purchase in his lending the money for the purchase, and that he interfered in the purchase of the vessel. You have also a letter written by him to Captain Jennings in respect of it, and I am going to show that Captain Jennings was present when this sum was paid for the purchase. I am going to trace it to two individuals, Bernardos and Jennings, and I am going to show that these notes were for the purchase of this vessel, and that the prisoner at the bar interferes with the vessel afterwards, as if he was acting as interested in it. I have put in two letters, one from the captain communicating to him as owner, giving an account of the transactions, and asking upon whom he is to draw for the amount required. The letter from Mr. Zulueta states that he will pay all the disbursements; he regrets the captain did not give him the amount, and requests him to go to the Salthouse Dock. In addition to the control over the actual purchase, he states that the money was paid for the purchase, he exercises a control over it, and directs the amount. Then you have the previous letter of Captain Jennings, and you have in these two letters a distinct act of ownership over the vessel, directing where she is to go, and distinctly exercising dominion over her. The question undoubtedly is, whether Captain Jennings was nominally appointed as master, he not being substantially the owner, and whether Mr. Zulueta did not from the beginning to the end transact the business of the vessel. That is for the Jury. I show he exercised control over it, and I show that this money was delivered to a person, and paid in purchase of the vessel. I submit it is quite clear that I am entitled to show that it was paid by these bankers.

Mr. Serjeant _Talfourd_. I submit that there is another ground on which this evidence is admissible. Pedro Zulueta, the prisoner, has undertaken to give an account of the transaction, and the account given in substance in the evidence is this:--That his house was authorised by Martinez & Co. to advance a certain sum out of the funds in their hands for the purchase of this vessel; that that sum was lent in advance to Captain Jennings by Martinez; that Captain Jennings became the purchaser, and was _bonâ fide_ the owner of the vessel; that is not the precise evidence, but the substance. We propose to show that that account is not true; that the price of the vessel was not 500_l._; the extent to which they were authorised to advance, but 650_l._ That that 650_l._ was a sum paid in some sort; that it is debited to the account of Martinez & Co.; that that sum was advanced out of the funds at a time when it was impossible that they could have had any communication with Martinez & Co., at the Havannah, to advance beyond the sum of 500_l._, which was stated to be the sum. Having taken that account, as given in the evidence, we are entitled to show that, in giving this account, the prisoner gave a false account as to a part of the transaction.

Mr. _Kelly_. If it is competent to my learned friend to give evidence of the falsehood of any statement made before the Committee, I challenge them to show the falsehood of any one statement made, with all the facilities I have given them with the books and documents of the house. But that is not the question: the question is, whether, because Mr. Zulueta has given certain evidence before a Committee of the House of Commons, in which he has stated his participation to a certain extent in the transaction in question, and in which he has stated the general effect of the transaction, any act done by any other member of the firm, or any one connected with the house, is to be made evidence against him. I apprehend, upon the plainest and clearest principles in the law of evidence, it is not; and in order to illustrate my argument I will merely put this case: Mr. Zulueta states, before the Committee of the House of Commons, and truly states, that his house, for a house at Cadiz, negotiated the purchase of this vessel, and the shipment of these goods. As far as that statement goes, for better or worse, it is evidence against him. But my learned friend says, therefore whatever was done by any other member of the firm, as a part of the transaction, is evidence against him. Let me suppose that the prisoner at the bar, having, by a letter read in evidence, authorised the purchase of the vessel; and, in addition to that, which is not yet in evidence, but may be had, directed that his correspondents, in Liverpool should ship goods for a certain place on board the vessel. Having been charged with the knowledge of the secret object and destination of the vessel, suppose his partner, unknown to him, had given some secret instructions to disregard the charter-party--Whatever orders my son, or my house, may have given you, take all these goods to the Gallinas, or any other slave dealing port, and barter them for two hundred slaves--and yet, upon the argument of my learned friend, that would be evidence here. My learned friend says, the prisoner has admitted he negotiated the transaction; and, therefore, any thing done by any member of the firm is evidence against him; that any thing done by any member of the firm, or any thing done by any body connected with the firm, would be a part of the transaction. To say that any thing done, which may be a felonious act, for aught I know, and though in relation to this transaction, not in my knowledge, to make that evidence against him, would be to indict one man for a felony committed by another, because he was a partner of that other, and because that house was concerned in the transaction out of which the felony arose.

(_The Judges conferred together._)

Mr. Justice _Maule_ (_to_ Mr. _Thomas_). I think you stated, that the order upon which the money was paid on the 29th of August, was returned to Zulueta & Co.?--Yes, it was.

When was it returned?--We have no particular periods; but when the pass-book is called for, the vouchers are in the pocket of the book.

There was a pass-book between you and Zulueta & Co.?--Yes.

In that pass-book were all the payments entered?--Yes.