Part 48

Mr. Serjeant _Talfourd_. In this prosecution there are two propositions which the prosecutors are bound to establish; the first is, that this vessel was employed for an illegal purpose; and, secondly, that Zulueta was conscious of it at the time he entered into this contract. Those two propositions are separate and distinct. It is true you cannot establish the second without the first; but it does not follow that you cannot give all the evidence to establish the first without interfering with the second. You must establish the felony, before you show the receipt of the goods. There the object and purpose for which the vessel was fitted out are part of the transaction, and must be shown by legitimate means. It is said by my learned friend, that if Mr. Zulueta was guilty of the offence, he was guilty of it at the time he dispatched the vessel from this country; but it does not follow that all the evidence is to be confined to this country. No one can suppose that, if a vessel is fitted up with these leagers and other fittings, it was not intended to be used on deck in some other than legitimate trade; and, whether she was driven in by stress of weather or not, if she was turned into a slave trader, is it to be said that instructions what was to be done with her, whether they consisted in writing, in words, or acts, are not evidence? I grant it does not establish the guilt of the prisoner, but it is a step to it; and if we are excluded showing the nature of the directions to the consignee of the vessel, who must be known to the prisoner, we are prevented from showing any painting or any alteration done after the ship left this country. They are not evidence as the history of any other slaving transaction, or any other history or confession; they are not for that purpose evidence against the prisoner; but they are evidence against the prisoner in so far as they are acts done in respect of the dispatch of the cargo, and the employment of the vessel.

Mr. Justice _Maule_. I do not think it is necessary to trouble Mr. Kelly. It seems to me that Mr. Serjeant Talfourd is quite right in saying there are two things to be proved: one, the body of the offence, the slave trading, or the intention to do it, the taking the voyage; and the other is the participation and knowledge of the prisoner in it; and I think it quite true, that it might well be that the first matter might be established, and established completely, quite consistently with the innocence of the prisoner, and yet, notwithstanding, that these papers might be admissible in evidence upon this trial. There is no rule that requires, that in order that a matter may be given in evidence upon a trial between parties, that the evidence should be such as in itself is sufficient to prove the case; if so, all other evidence would be excluded. I admit it is quite competent to the prosecutor to prove, though he has not fixed the knowledge of the prisoner, any fact constituting any suspicion, or a plausibility. I think he might do that: but here the objection is not so much to the subject of proof, slave trading, as the medium of proof--the document seeking to establish it--this being a document not at all traced to the prisoner, nor any body in privity with him; it is merely found on board the vessel, and is not a document that can be read against him. It is not a statement accompanying any act done, it is found on board the vessel, found by some one who may be an agent or accomplice of the prisoner, and handed to Captain Hill. I think the mere circumstance of handing it to Captain Hill does not remove the objection of want of privity between the prisoner and the paper: I think it cannot be given in evidence. If the vessel sailed without any instructions, no doubt it is a very strong circumstance against the honesty and legal purpose of the voyage: if she is in a latitude, where slave trading is carried on, it affords an observation against the legality of the voyage.

Mr. Justice _Wightman_. I am of the same opinion: I think the document is not admissible, for the reasons stated by my brother Maule.

Mr. Serjeant _Bompas_ not objecting, the prisoner was admitted to bail, and left the dock.

[_Adjourned._

SECOND DAY. SATURDAY, 28TH OCTOBER, 1843.

The names of the Jury were called over.--All present.

The Defendant took his place within the Bar.

The Witnesses on both sides, except those to character, were directed to withdraw.

(_Joseph Bankes was called, but was not in attendance._)

_William Thomas Onion_ sworn. Examined by Mr. Serjeant _Bompas_.

Do you reside at Portsmouth?--I do.

Did you know a vessel called first the Gollupchik, afterwards the Augusta?--I did.

Did you know a Captain Jennings?--I did.

Did you know his mate also?--Mr. Mottley.

In consequence of your knowing one or both of them, were you occasionally on board the vessel?--I was on board sometimes, almost the whole time.

Were you ever applied to to sail in the vessel?--Not directly.

Was any application made to you to join the vessel going any where?--An observation was made, but not a direct application.

You say you were on board; did you see the captain when he received any letters?--Yes; I generally saw him receive letters.

What is your occupation at Portsmouth?--A teacher of navigation.

Were you employed to teach anybody in that vessel?--I was giving Mr. Mottley instructions.

Mr. Justice _Maule_. What is the name of the gentleman?

Mr. Serjeant _Bompas_. Motley: M-o-t-l-e-y.--No; M-o-t-t-l-e-y.

You say you saw the captain receive letters; did you see him do any thing with any part of the letters?--He generally used to cut the name out.

Mr. _Kelly_. I must object to this. What can we have to do with all this? Here is a witness, of whom we never heard till to-day, to speak to what Captain Jennings has done with certain letters he received. How can that be made evidence against Mr. Zulueta, the prisoner at the bar? Any thing, which Mr. Zulueta authorised the captain to do, which he directed, or which he sanctioned after it was done, is evidence against him; but on what conceivable principle are the minds of the Jury to be perplexed and overloaded by circumstances taking place, which occurred in his absence, over which he had no control, and of which he had no knowledge till he hears it three years and a half afterwards?

Mr. Justice _Maule_. I do not know, at present, how it can be made evidence.

Mr. Serjeant _Bompas_. I do not know how it can be said that nothing is evidence against a person, unless he is present at the time. I conceive this is evidence on the same ground, as if the captain bought slaves with money sent by Mr. Zulueta for the express purpose of buying slaves, it would be evidence against him. The question is, whether from Mr. Zulueta’s conduct, it is not evident that he sent this vessel for slave trading; that must appear from all the facts: but here we have the confirmation, that there is one of Mr. Zulueta’s letters actually found on board the vessel with the name cut out. We shall prove also another letter, which the captain received. There is all that practice of secrecy, which shows at the time the vessel had been purchased by Mr. Zulueta, when Mr. Jennings was acting as captain of that vessel. We are to show the nature of the transactions of that vessel, and of the prisoner. One thing is, that there was a universal concealment. Supposing we could distinctly show that Jennings was going to the Gallinas for the purpose of dealing in slaves, then we might show, by Mr. Zulueta’s conduct, that he knew that was the object of the voyage; but in order to show what was the intention, we must show what passed; and if we cannot show the conduct of the captain on board that vessel, at the time he is the captain of that vessel, which we say there is evidence that Mr. Zulueta purchased; if we cannot account for that letter which is produced, in Mr. Zulueta’s handwriting, with the name cut out, and give evidence when it was cut out, and how it was cut out, it appears to me excluding us from a means of giving evidence of the facts. If this be not evidence, it is utterly impossible to prove any combination for the purpose of dealing in slaves, unless the prisoner charged says so himself, or is present when they say it. If they employ agents, and he is only one of the parties, I must show the acts of the parties: but here is a letter from on board the vessel, with the name cut out. I am showing that this person received letters while he was at Portsmouth from Zulueta, and that he cut out the name of the person writing those letters. I submit to your Lordship that that is evidence.

Mr. Justice _Maule_. We think the evidence is not admissible. It is very true, that you might prove slave trading by the captain of the vessel, although you did not show the prisoner to have been present at the time; but it does not follow that every thing which tends to show slave trading, and which would be admissible against the captain of the vessel, would be admissible against Zulueta. I do not think that follows with respect to the evidence now offered. In my opinion it does not necessarily tend to prove slave trading; it amounts to an admission on the part of the captain, that the letter he had received was from a correspondent, whom he desired to conceal; it amounts therefore to no more, if so much, as if Captain Jennings had said to this witness--This is a letter from a person from whom I am desirous of concealing that I have received letters. I think this is not evidence.

Mr. Serjeant _Bompas_. You say you were on board that vessel frequently, giving instructions to Mottley, and occasionally with the captain; did you see any thing on board that vessel in a bag at any time?--I saw some deck-screws; I found them.

Mr. Justice _Maule_. You say you saw them; do you mean that you found many, or only a few?--It was one bundle, wrapped up in canvas.

A bundle of deck-screws, wrapped up in canvas?--Yes.

How many?--About twenty, or two-and-twenty.

Mr. Serjeant _Bompas_. Will you explain what you mean by deck-screws?--Screws that are formed for placing a temporary deck for slaves, to go through the deck, and fasten to a beam to ship a deck.

To screw it on, and then take out the screws and move the deck?--Yes.

Mr. Justice _Maule_. Whereabouts did you find these?

Mr. Serjeant _Bompas_. Where did you find them?--In a secret place at the back of the cupboard.

Mr. Justice _Maule_. The cupboard; in what place?--In the cabin of the ship.

Mr. Serjeant _Bompas_. How came you to be looking there?--A boy, in putting the soup-tureen into the cupboard, happened to put it too far, and the tureen fell over; he told me--

Mr. _Kelly_. Tell us what you saw, not what he told you?--Consequently I got over and recovered the tureen, and I said, “Here is a store--”

Mr. Serjeant _Bompas_. Never mind what you said, but what you saw: you got up, and recovered the tureen?--Yes; and in searching about, I found these.

Did you do anything with them, or leave them there?--I put them on the table, and Mr. Mottley opened them.

What was done with them then?--They were put into a cabin abaft by the boy.

About what time was this, as near as you can tell?--About the middle of September, 1840.

Did you see any thing else in the cabin at all?--I have seen some shackles amongst the ballast.

Mr. Justice _Maule_. How many?--Oh, I do not know; it was mixed with the ballast, and one thing and another.

Have you been at sea yourself?--Some years.

How long have you left the sea?--About four years.

Did you see any false tops, any covers for the tops of cabins?--False tops, yes; all the bed places were false tops.

Just tell us what you mean by false tops?--A vacancy between the deck and the lining.

Was there any opening to them?--Yes.

Just describe it?--About four inches I suppose, so as to enable any thing to be stowed away there.

When it was stowed away, was it possible to be seen to be stowed away, or concealed?--No; it was concealed.

Mr. Justice _Maule_. All the bed places you say were with false tops?--What they call lined, between the deck and the lining, leaves a vacancy.

Mr Serjeant _Bompas_. Was there any thing to open or shut? Will you describe how anything could be put in?--A piece of, I do not know what you call it, a piece of furniture came over the facing.

Do you know what is the moulding?--A kind of moulding, and there was this vacancy.

To any body who came into that cabin and saw that, was that perceivable?--Not at all.

Cross-examined by Mr. _Kelly_.

What are you now by business or trade?--A teacher of navigation.

Were these articles, of which you have spoken, articles calculated for the carrying on the slave trade?--I presume so.

Will you allow me to ask in what way you have acquired your knowledge of what is fit for the slave trade, and what is not?--A representation of Mr. Mottley himself, who was on the slave trade on the coast for years.

It was by the representation of Mottley, who was on the coast for years, you acquired this knowledge?--Yes, that was the way.

That leads you to suppose that these were calculated for the use of the slave trade?--Yes.

Did you know that the Gollupchik had been sent to England to be sold by reason of its having been fitted up for the slave trade?--I heard so.

Was it not perfectly notorious through Portsmouth?--I believe she was not condemned, but it was said so.

You are a teacher of navigation; do you know whether before a vessel clears out from a British port for the coast of Africa, she is not examined by a Custom-house officer, to see whether there are any articles used for the slave trade?--I believe she is.

These articles you saw were at Portsmouth, before the vessel went to Liverpool, where she received her cargo?--Yes.

Do you live at Portsmouth?--I do.

_Joseph Bankes_, the elder, sworn. Examined by Mr. Serjeant _Talfourd_.

Do you live at Portsmouth?--Yes.

What business do you there carry on?--A cooper.

Do you remember the Gollupchik being at Portsmouth in the year 1840?--Very well.

While she was there did you go on board her?--Yes.

Were you employed to do any thing on board that vessel with the water casks?--Yes.

The leagers?--Yes; large casks for leagers; double leagers.

About what size were the casks?--There were different sizes; but those casks we are now speaking about would contain nearly a thousand gallons each.

How many were there?--About a dozen.

Were they entire on board when you first went on board the vessel?--Yes.

Where were they?--They were on one side the kelson, full of water.

Who was in command of the vessel at that time?--A person of the name of Mottley, apparently to me assumed the command.

Did you see Jennings there?--Yes.

Do you know a man called Bernardos?--No, I do not.

Did you receive any directions, I do not ask what they were, to do any thing with the casks?--

Mr. _Kelly_. I do not understand here, how this is evidence against Mr. Zulueta. The cause has lasted quite long enough, without our having all the directions given by all persons.

Mr. Serjeant _Talfourd_. My question was simply: Did you receive any directions from any person? I put that, and was putting it in the most unexceptionable manner.

Mr. _Kelly_. I will not object; go on.

--I received directions at my own shop, from a person calling himself Mr. Jennings.

Mr. Serjeant _Talfourd_. Did you, in consequence of any directions you received, go on board the vessel?--He took me on board the vessel the same day, in the shipwright’s boat.

In pursuance of any directions you received, did you do any thing?--I numbered each cask, beginning at 1, 2, 3, and completing each.

Each stave?--Yes; and then took the heads off the staves, put them on the inside of the staves, put them up together, and formed them into stacks.

Mr. Justice _Maule_. When you went on board, you found some staves and heads of casks?--I found the casks.

Mr. Serjeant _Talfourd_. He found the casks, and took them to pieces.

Mr. Justice _Maule_. You found the casks in the state of casks?--Yes, they were stowed in the hold of the vessel, full of water.

How many casks?--I think of the larger kind there were about twelve.

Mr. Serjeant _Talfourd_. About how many smaller ones?--I should say there were about fifty of the smaller kind.

Mr. Justice _Maule_. What did you do with the large casks?--Razed the staves of the large casks. I numbered each stave, stave by stave, till I had completed the circle of thirty or forty staves.

Did you mark them with chalk, or what?--I razed them with a proper razing iron.

Razing is scratching a mark?--Yes.

What did you do with them?--Took the hoops from them and put them together, and put them in close packs as we do sugar-casks.

You emptied the water?--Yes, emptied the water and took the casks to pieces.

You put the parts of the casks together as correctly as you could, to enable them to be put together again?--Yes.

Mr. Serjeant _Talfourd_. Where did you leave them?--I left them stowed in the ballast, after the ballast had been taken out and limbers cleared out of the bottom of the vessel and stowed them on the top of the ballast in packs.

Mr. Justice _Maule_. Each cask in a pack?--Yes, in a separate pack.

Mr. Serjeant _Talfourd_. Did you do any thing with the smaller ones?--Yes, some of them, and others I repaired for water for the voyage for the present crew.

Mr. Justice _Maule_. You did the same with some of the smaller ones, and repaired others for water for the crew?--Yes, just so.

Mr. Serjeant _Talfourd_. How long did it take you to do this?--About three weeks; from the 8th of September to the 19th we were positively engaged entirely in that work.

Did you see any thing else that attracted your attention, while you were engaged on board the vessel?--Yes.

What was it?--In two of the smaller casks, which we came to in the tier, our attention was attracted by a noise in the cask; it proved to be a quantity of what we call shackles when I was in the West India trade: we did not count them, but there might be from one to two hundred pair.

They were in the cask?--Yes.

Can you tell how many there were?--We did not count them, but I should consider from the weight and height of the cask, there were nearly two hundred pair.

Was any thing done with those while you were there?--Not that I saw.

Then they were left in the place where you found them?--Yes, they had been in the vessel before.

Mr. Justice _Maule_. What did you do with that cask?--We restowed it again.

Did you take that cask to pieces?--No.

How could you see the shackles?--Because we took the head out.

Did you put the head in again, or leave it so?--I left it so; but I believe my son did the remainder.

You do not know whether it was done or not?--No.

Cross-examined by Mr. _Clarkson_.

This was in September, between the 8th and 19th; you were eleven days about this?--That was the time that we were specially engaged on the large casks.

Was it necessary to hammer them to separate them?--Of course, we took all the hoops off.

That makes a good deal of noise?--Sometimes it does.

Had you any person to help you?--I had my own son, and the ship’s crew at times, at any time I wanted to get the large casks out of the hold.

How long was this after the vessel had been sold, and these casks in her, by public auction, as a condemned slaver?--I did not know she had been sold; I heard of it.

When did you hear of it?--Some time before, in August, I heard it.

Did you go to the sale?--No.

Do you recollect the vessel leaving Portsmouth?--Yes; that was two or three days after.

She left in ballast for Liverpool; did she not?--They said she was going to Liverpool.

Perhaps there was a doubt about that; did any persons come on board her to see her?--I did not see any persons particular; there were comers and goers, such as persons who do come on board to vessels, such as watermen, and men coming on board wanting to go out as men in the vessel.

Any body else that you remember?--Not that I know of.

Just describe: the hold of the vessel had been fitted with these large leagers which you speak of?--Yes.

Those you took down, where did you put them?--We stowed them on the top of the ballast, in the wings, any where, where there appeared to be room.

What was the ballast of the vessel?--Iron ballast.

Where do you say you saw the shackles, which you assume to be a hundred or two hundred in number?--On the starboard side.

That is where you left them?--Yes.

Did they form part of the vessel’s ballast?--I should say not.

What was the ballast?--The ballast was pigs of iron, such as are used on such occasions.

Have the kindness to tell me, whether or not you left those shackles on the top of the ballast?--I left them in the hold, on the starboard side.

On the top of the ballast?--Yes.

Were there any persons on board the vessel at the time you went away?--Yes, the ship’s company.

Any body else?--Not that I know of, except two shipwrights.

Were they two Portsmouth shipwrights?--I believe they were.

What were their names?--Case the elder, and Case the younger.

Are they here to-day?--No, they are not.

Had they been working on board the vessel?--Previous to me, and after I left her also.

Do you recollect the names of any other persons who bad been working on board her?--No, I know there were two others; but I do not know their names.

What were they?--Scrapers, and caulkers, and so on.

Portsmouth men?--I believe so.

Who called upon you to come here and be a witness?--The King’s solicitor, Mr. Greetham.

When?--Last Thursday.

Was that the first time you ever heard of being called here?--Oh, dear no; I had heard of it being talked about before.

Was that the first time you were called upon to attend?--Yes, positively to attend.

Did you communicate to Mr. Greetham that there were shipwrights, whose names you knew, working on the vessel, both before you were on board and afterwards?--No, I never mentioned it to any person.

You were never taken before any magistrate on this subject, were you?--No.

So that the party accused had no opportunity of knowing that you, or any person who comes with you, were about to attend?--No.

Mr. Justice _Maule_. I do not think it is convenient to put speeches, containing inferences to be derived from the evidence: it was the old practice, I am well aware, when speeches could not be made, and a very fair one then.

Mr. _Clarkson_. You have stated to the Jury what you saw of the vessel when she was at Portsmouth; can you give any account of what was on board her when she was at Liverpool, and whether there was any thing of the nature you have described?--No, for I never went to Liverpool.

_Joseph Bankes_, junior, sworn. Examined by Mr. _Payne_.

Are you the son of the last witness?--Yes.

Did you assist your father at Portsmouth on board the Augusta?--Yes.

Mr. _Kelly_. Is it only to confirm the other witness? I do not dispute that.

Mr. Serjeant _Bompas_. I thought the intention of the cross-examination was to break in upon that witness.

Mr. _Kelly_. Certainly not; you misunderstood it, then.

Mr. _Clarkson_. You may stand down, Sir.

_Henry George Moon_ sworn. Examined by Mr. _Payne_.

Are you clerk to Mr. Vandenburg, the Russian consul at Portsmouth?--I am clerk to him, but he is not the Russian consul.

Do you remember the arrival of the Gollupchik at Portsmouth?--I do.

On the day of her arrival, did you go on board her?--I went on board with Mr. Vandenburg.

Do you remember the day of her arrival?--I think it was the 10th of June, 1839.

Who was the captain of the vessel at that time?--Thomas Bernardos described himself as captain.

Did he act as captain?--The vessel was under the charge of an officer of Her Majesty’s customs at the time; I forget the officer’s name.