Part 47

And this amongst the rest?--Yes; but I would not state whether it was a draft, or a bill at twelve months date.

It would state the account upon which it was paid?--Yes.

And you would with that send back the draft or order upon which it was paid?--Yes.

When was that done?--I cannot say when the book was called for: it might be upon the following day, or in the course of a fortnight or so.

It would be in the course of a fortnight?--It might be so, I cannot say: there are parties who do not call for their book in a year, or not at all.

Zulueta & Co. do not call for their book for a year?--No, I do not say that; they would have it frequently.

Did you return it with the vouchers in the pocket of the book?--Yes.

Did you do that frequently?--Yes.

When was the payment made?--The 29th of August, 1840.

You said the book was returned to them frequently?--Yes, I imagine so, that they would call for it: they call for it, or send for it.

When it is called for, it is put into the hand of the caller, and sent away?--Yes.

About how frequently?--It depends upon circumstances; some persons send frequently.

Do, for God’s sake, put out of your mind all other customers of your principals, but Messrs. Zulueta?--It is not my department, and I really do not know how frequently they send.

I have taken it that they had it returned frequently?--I imagine so; I think so.

That is, you think so, from knowing it?--No; from the general custom of merchants of their standing.

What you do know is this: that the payment is entered in the book; that the course is to return the book: whether it has ever been returned you do not know?--No, I do not; of my own knowledge, I do not: I believe so.

I thought it might probably appear that Messrs. Zulueta & Co. had this cheque.

Mr. Serjeant _Bompas_. Are either of your principals here?--I am not aware of it.

Not in obedience to the subpœna?--I am not aware of it.

Mr. Justice _Maule_. You had better postpone it till to-morrow; you will be able to get at it by that time?--It is not in my department.

Mr. Serjeant Bompas. What is the name of the person in whose department it is?--In that of the receipt-clerks.

Give me the name?--Mr. Hayburn.

Mr. Justice _Maule_. As this extreme rigour of proof is insisted upon, you may have twenty clerks?--I have no doubt that Messrs. Zulueta had the book away frequently; but I do not know it myself.

Mr. Justice _Maule_. Suppose we had an earthquake every three years, one would say that was frequently. If a man got a dinner only once a week, one would not say that that was frequently. It depends upon what it is?--I do not know how often it was.

Do you mean once in ten years, or what?--Almost daily.

Mr. Justice _Maule_. I think now, assuming that Mr. Kelly does not raise any question as to the fact of the pass-book going back with the vouchers, it being now taken that the draft whatever it was, or order, upon which this money was paid, having been returned to Zulueta & Co. before the notice to produce was given to the prisoner, that notice naming the cheque or order mentioning the date and mentioning the sum, and it containing the subsequent clause, “all other papers, &c., relating to this matter,” supposing instead of being a cheque or draft it was an acceptance for a sum made payable at their bankers, the subsequent part of the notice to produce is to be drawn in aid of the previous part, and that taking the two parts together it amounts to a reasonable notice to the prisoner to produce the paper, if in his power, even if it was an acceptance and not a cheque or draft. Then the question comes to this, whether the document here is admissible in evidence against the prisoner. The prisoner is a member of the firm in England, not absent in Spain as he might be, but he is in England attending to this matter; and notice having been given by the bankers of Messrs. Zulueta by the return of the vouchers that they had paid such a sum of money upon such an account, that that amounts to a statement to each of the partners of Zulueta & Co., and it is reasonable to suppose that they were acquainted with the statement in the pass-book and that document, and that they amount together to this, that it is the same as if you could show this gentleman had said to Zulueta & Co., on such a day I paid to such a person such an amount for your house: and we think the witness may be interrogated as to the account upon which he paid this money.

Mr. Serjeant _Bompas_. On whose account did you pay that 650_l._?--Zulueta & Co.

On what day?--On the 29th of August, 1840.

What were the numbers of the notes?--47,194, dated the 9th of March, 1840, 100_l._; 41,674, the same date and amount; 48,204, 9th March, 100_l._; 36,020, 25th of May, 1840, Liverpool Branch Bank of England, 100_l._; 46,243, 9th March, 100_l._; 38,288, 9th March, 1840, 100_l._; 1,364, 50_l._, August the 8th, 1840.

Mr. _Emanuel Emanuel_ sworn. Examined by Mr. Serjeant _Bompas_.

I believe you reside at Portsmouth?--Yes.

Did you know a vessel called the Gollupchik?--Yes.

Was she sold by auction, or in any way?--Yes, by auction.

Were you the purchaser?--I purchased her for a friend.

What amount did you give for her?--600_l._

And there were the auction expenses?--And the auction expenses.

Did you afterwards sell the vessel?--Yes.

To whom did you sell her?--I sold her to two parties who came together to purchase her.

Do you know their names?--Captain Bernardos and Captain Jennings.

What was the day of the month?--That I cannot tell you exactly.

Was it in August 1840, about that time?--I could tell you; I think it was in June.

Just tell me, if you can by any means?--I can tell you by the day I received the money, which was the same day I sold her.

Have you any memorandum made by yourself?--No, by my clerk, of the number of the notes.

Did you see the entry the day it was made?--Yes.

Mr. _Kelly_. That is not in your own handwriting; when was it made?--The same day as the letter was posted.

Mr. Serjeant _Bompas_. What was the day?--It was sold in September last.

Did you keep a memorandum of the numbers of the notes you received?--Yes, that is the only memorandum that was kept.

Tell me the numbers of the notes?--The numbers, as they are entered here, are single 100_l._ notes, J. B., March the 9th, 1840; J. B., 48,204; J. B., 47,194, same date, 100_l._; J. B., 46,243, 9th March, 1840, 100_l._; J. B., 41,674, same date, 100_l._; J. G., 36,020, May 25, 1840, 100_l._; J. G., 38,288, May the 9th, 1840, 100_l._; then there was a note for 50_l._, No. 1,364, 8th August, 1840; making a total of 650_l._

Were there any papers or documents you received or delivered in respect of the vessel?--I received no documents; she was sold by public auction.

Did you give any?--No, I only gave an order to the ship-keeper to deliver her up.

Have you got that letter?--No, it was not a business transaction, it was merely for a friend.

Had you the bill of lading, or any thing?--No.

Cross-examined by Mr. _Kelly_.

Who originally sold her?--She was advertised to be sold by auction, at the Exchange Rooms, by Mr. Robinson.

Do you know who he was?--An auctioneer at Portsmouth.

Mr. Serjeant _Bompas_. To whom did you pay the money for your purchase?--The money was originally paid by a cheque from the party by whom she was purchased, who attended the sale himself to bid for her; that cheque by some accident was not presented at the place where it ought to be; it came back to me and I paid it myself.

Mr. Justice _Maule_. You paid the auctioneer?--I paid the bankers myself finding there was a mistake, and it was immediately repaid to me.

That cheque was given to somebody?--To the auctioneer; not that cheque of mine, but the cheque of the party who purchased her.

Mr. Serjeant _Bompas_. I am now going to offer in evidence the papers of the vessel, the cockets that were on board the vessel. I am going to call for those, as my learned friend wishes me to call for one thing at a time.

Mr. _John Brown_ called again. Examined by Mr. Serjeant _Talfourd_.

Have you the cockets there?--Yes, I have.

There are seven of them; No. 5 is the document we want. (_The Witness produced the same._)

Mr. Serjeant _Bompas_. These are the cockets; they are not objected to; they are in page 30 of the book.

Mr. Serjeant _Talfourd_ (_to_ Captain _Hill_). Were those found on board the vessel, and delivered to you?--Yes.

They were delivered to you by Captain Jennings?--Yes.

Mr. _Kelly_. Do you propose to read all these documents?

Mr. Serjeant _Bompas_. No. There is one entry made of plate-glass, upon which a drawback is to be obtained by the person who ships it; all the rest are in the same form. Now, No. 7. (_Mr. Brown hands that in._) Now, the bill of lading: hand that to Captain Hill.

Mr. _Kelly_. There is no occasion to trouble Captain Hill. I do not know how it is important, but I do not see how it is admissible; it is not in his handwriting, nor contains his name; it is found in the vessel early in 1841, many months after he sails. How is that evidence against the prisoner? The charge is, that the prisoner at the bar did equip and use the vessel for the purposes of the slave trade; that the prisoner at the bar shipped goods on board the vessel for the purposes of the slave trade. I need not refer to the letters in evidence or any other document; but here is a document purporting to be a bill of lading, not bearing the signature of the prisoner or any of the firm, nor seen by any of them, but found many months afterwards on board the vessel: how can that be evidence against him? Is that the only document found? There may be treasonable papers found there, and how can they be evidence against Mr. Zulueta, unless it is proved it was done by his orders.

Mr. Justice _Maule_. I suppose the object of the evidence is to show that there was no mention in these papers of Mr. Zulueta having any thing to do with it?

Mr. Serjeant _Bompas_. I ought to say there is the name of Zulueta and Co., the Spanish house at Cadiz.

Mr. Justice _Maule_. There is nothing found on board the vessel to indicate any concern that the Zuluetas in London had in freighting the ship or shipping the goods. I suppose it must be taken for granted, unless it is shown on the part of the prisoner that Mr. Zulueta’s name was in the document, that it was not his.

Mr. _Kelly_. The prosecutor is to make out his case that the prisoner at the bar equipped the vessel for the slave trade.

Mr. Serjeant _Bompas_. Employed it for that purpose.

Mr. Justice _Maule_ (_to_ Captain _Hill_.) Did you find any document mentioning the house of Zulueta in London?--None, but the papers before the Court.

And none of those mentioned any house in London?--The letter read is the only one.

Mr. Serjeant _Bompas_. We now produce certain letters found in the ship, not the ship’s papers. There is one in which the name was cut out, the letter authorising Captain Jennings to purchase the vessel; except that in, there is nothing to show they had any interest, or that they shipped the goods.

Mr. Justice _Maule_. These are all the papers found on board?

Mr. Serjeant _Bompas_. Now we are going to offer certain other letters.

Mr. Justice _Maule_ (_to_ Captain _Hill_.) Are these all the papers you could get?--Yes, these are all I could get.

Mr. Serjeant _Bompas_. I am going to offer the letters objected to in my address; we are going to show letters giving directions.

Mr. _Kelly_. My learned friend should not state the contents of the letters.

Mr. Serjeant _Bompas_. I have stated nothing injurious to the prisoner, only enough to call the attention of the Judges to them. I am going to prove the handwriting of them.

Mr. _Kelly_. The evidence at present is, that Captain Hill found on board the vessel, or that the master delivered to him, certain papers, those you now produce; you say nothing about the contents, but you are going to prove the handwriting?

Mr. Serjeant _Bompas_. Yes.

(_Mr. Brown produced certain other papers, which were handed in._)

Mr. _Brown_. That packet contains nine enclosures.

Mr. _Sebastian Gonzalez Martinez_ sworn. Examined by Mr. Serjeant _Talfourd_.

Do you know Pedro de Martinez, of Cadiz?--No.

Have you had any correspondence with him?--Never.

You are not acquainted with his writing?--Not at all.

Where have you lived; at Hampstead?--Yes, at Hampstead.

What is the name of your house at Hampstead; has it a name?--Yes, it has.

What is it?--Bellasise Park.

Cross-examined by Mr. _Clarkson_.

Do you know the gentleman in this dock?--Yes, I do; I have known him since he was a child.

What character has he borne in this city for integrity and good conduct?--Most excellent; he has been a good son, a good father, and a good husband, and a most honourable merchant.

Mr. Serjeant _Bompas_. I thought we should have been able to prove the handwriting. These letters are addressed to the correspondent to whom the vessel was consigned, giving directions in respect of the vessel, and there are instructions as to what is to be done with the cargo. Your Lordships will probably look at them; there is no actual signature.

Mr. Justice _Maule_. I have heard enough of them.

Mr. Serjeant _Bompas_. They are in Spanish; there is no name signed to them at all; there is the letter M, and there are directions in respect of the cargo which is on board. Now I apprehend we have two things to prove, and to give in evidence to your Lordships and to the Jury; the one is, what was the object of the vessel, what was to be done with her cargo, what was the object of her freight? There is the captain found on board, who delivers up the ship’s papers, and among others the directions to the consignees as to what is to be done with the cargo, and general instructions.

Mr. _Kelly_. I have three times heard my learned friend make an assertion to your Lordship, which I beg leave to deny. I am certain my learned friend is speaking under instructions false in themselves. He has never read the letters; I have. They have been before another Court in a proceeding to which this gentleman was no party, and I undertake to say they do not refer to the disposal of this cargo or this vessel in any way; and it is cruel in the extreme that such statements should be made in the hearing of the Jury, which they will never forget; and that those statements will remain when your Lordship rejects them, as you will do. I have read them all, from the beginning to the end; they were before the Privy Council, and I say they do not relate to it.

Mr. Serjeant _Bompas_. I have read them from the beginning to the end; I do not put my judgment against Mr. Kelly’s; but he asserts that they do not, and I assert that they do: whatever is in these letters I have carefully abstained from stating it in any way which shall injure the prisoner at the bar.

Mr. Justice _Maule_. Mr. Serjeant Bompas does not state that they contain any direction to employ the goods in slave trading.

Mr. _Kelly_. I deny that they contain any direction to employ the goods in any way.

Mr. Justice _Maule_. It is rather favourable to the voyage that there should be a document so produceable and regular, as instructions to the persons interested in the cargo: where there was nothing to conceal, persons would have those instructions.

Mr. Serjeant _Bompas_. When we come to matters of assertion, I yield to my learned friend; but when we come to the examination of documents, and to decide whether they are evidence, then we look at the evidence. It is absolutely necessary, if they are directions, that your Lordships should look at them to ascertain whether they are so or not, and in that way I should not have the slightest objection to submit them to the Court: they are at page 7; and there is one document I will call your attention to, in which there is a distinct direction as to what is to be done with the cargo on board; as far as that is necessary these are directions, or, as your Lordship says, there are none.

(_A printed copy of the Letters was handed to their Lordships._)

Mr. Serjeant _Bompas_. If your Lordships look at the general direction, you will find it in page 7, “I have to request,” down to the words “so very precious.”

Mr. Justice _Maule_. Does that refer to any mention of the Augusta before that?

Mr. _Kelly_. Not at all; it refers to the vessel Urraca.

Mr. Serjeant _Bompas_. The vessel first in question was the Urraca, not the Augusta.

(_Their Lordships referred to the printed Letter._)

Mr. Serjeant _Bompas_. If your Lordships will look at the bottom of page 38, you will see a paragraph beginning “From my preceding communication.”

Mr. Justice _Wightman_. He dispatched that ship?

Mr. Serjeant _Bompas_. Yes.

Mr. Justice _Maule_. Are there any other letters to the consignee relating to this ship, unless these do?

Mr. _Kelly_. I hope your Lordships will not take that for granted upon my learned friend’s statement: there are a great variety of documents, of the existence of which the prosecutors are perfectly aware; they have given no notice to produce them, and they would lay the matter open before the Jury.

Mr. Serjeant _Bompas_. I hope your Lordships will not give the least credit to these statements of Mr. Kelly; they deserve no credit.

Mr. Justice _Maule_. There are documents, Mr. Kelly says, which we shall see in due time.

Mr. Serjeant _Bompas_. There are papers here, and we wish every one to be put in, no doubt. The form in which we put it is this: that if a letter is directed to consignees giving directions, that is evidence of what is to be done with the cargo, they are directions in respect of it; and the question whether Captain Jennings was the owner of this vessel, or whether it was used as a cover under his directions, is a question for the Jury. That Messrs. Zulueta, on behalf apparently of Martinez, entered into a contract of charter-party with him there is no doubt, according to the statement and admissions in this examination; and they also ship these goods on board the ship of Captain Jennings: they were shipped for the consignee; they were the agents. What was to be done with those goods? The only way that can be ascertained, is by the actual order to the consignees in respect of them.

The second question will be how far Mr. Zulueta was implicated in it, and that will be shown by the conduct pursued, and the concealment he practised; but the question is, what was the object of it? What was to be done? If we see he employs this vessel to accomplish a particular object, we say it was for that purpose. My learned friend says, how can you give in evidence any thing that took place after the vessel left England? How can you say that it was employed for that purpose, except by something done in England? Suppose I show that these goods were ordered by an individual to be used for the purpose of the slave trade, and suppose I can show they were so used, that is, after they were sent. But I am to show by the conduct of Mr. Zulueta that that was the object. They are two separate things; how am I to show that was the object? I show the bill of lading by which they were consigned to certain persons; I show a letter directing those persons how to apply them. Suppose there is no signature to any one of these letters, does that prevent their being given in evidence? You must expect there will be concealment, if there is an illegal voyage; but if these are the orders upon which they are to proceed, how is it to be said that that is not the object of the voyage? I must show what was the object: how is it possible to show that? It is only by showing the orders given in that respect; there is no other way of showing that that was the purpose, except showing something after the vessel left. My learned friend has said many times, how can Mr. Zulueta be affected by any thing that took place after the vessel left England. Suppose a vessel was sent from England for the express purpose of receiving slaves, and did receive slaves; if I can affect him, I must show that it was done afterwards; if it was for slave transactions, I can only show by the directions and orders given to the parties to whom they were consigned what was to be done with them. They were shipped in the name of Captain Jennings by Mr. Zulueta: but what is to be done? If Captain Jennings was the agent of Messrs. Zulueta, the fact of ordering these things to be done would be evidence against Mr. Zulueta. It would be for the Jury to say whether Captain Jennings was employed, or was the real owner of the vessel; whether the owner or the captain. If we could show written orders to dispose of the goods, how could that be done but by putting in the document? If I could show Captain Jennings’s coming to the Gallinas, and stating he must apply these things in a particular way, can he turn round and say I have no instructions? Yes, these are your instructions; and no concealment in the case of a crime can prevent them being given in evidence, because, in that case, the captain is safe in taking out papers not giving general instructions as to the whole of the cargo: but if there is concealment, if a party hides himself, and acts in another name, and you find that vessel with certain documents on board giving directions what is to be done with the cargo, is it to be said that those documents are not receivable in evidence in respect of that cargo? If it is so, it is not possible to give evidence against any one who does not go to Africa to do it. It is nothing to show they sent out a vessel with that object. First, I show that in fact the directions were to send them for the purposes of the slave trade, and I show next that it was so used. If you show it was not so used, if you cut off the latter part, if you say the directions were on board to be so used, I submit it is evidence when the captain gives up the directions to the consignees as to how they are to treat these goods; and therefore, my Lord, I say it is no answer to say they are not signed. If I do not show by Mr. Zulueta’s conduct that he had some guilty knowledge--

Mr. _Kelly_. I do not take the objection that they are not signed.

Mr. Serjeant _Bompas_. I do not show that they are signed by Mr. Zulueta, which he says is necessary: in point of fact, I say it is immaterial, because, if a person whom Mr. Zulueta never heard of, had given directions in respect of these goods, that they were to be used for the purpose of slave dealing, he having shipped them, the only question is, did he ship them for that purpose? How do you show that? By his conduct. That he did employ the vessel is proved: he chartered it, and that is the only purpose. I submit that the only way is to show the directions at the time which they were to receive; I submit that the directions are evidence; and the last question is, whether Mr. Zulueta did it with that object.