Part 5

I began by showing the facility afforded by the law to any individual whomsoever, who may choose to undertake a prosecution, not only without the consent, but against the recorded judgment of the Legislature, and the known opinion of those officers of the Crown who are especially charged with the prosecution of public offenders. I have shown, that this may be done by any man--whether from motives of private resentment, or of private interest, or of wanton malice--whether under a fanatical hallucination, or from a desire of vain-glory, or from a combination of all or of some of the very worst passions of the heart with the less inexcusable errors of the head, it matters not: the search for the particular motive operating in any one given instance is indeed unprofitable, and whilst it cannot do much towards reclaiming the perpetrator of the mischief, would but little improve the moral tone of mind of his victim, yet the fact itself remains unaltered, _viz._ that a prosecution of this kind, in the name of the Queen, which the forms of justice require to be used, and on the plea of a public spirit, may be taken up by any man in defiance of a recommendation to the contrary by the House of Commons, upon a case canvassed and decided upon by a Committee of that House, and against the opinion of the law officers of the Crown. It has also appeared, that to the general and very powerful objections which are suggested by the common sense and reason of mankind against this practical reversion to the state of savage life in which a man can take such means of attack upon his fellow-man as he thinks will effect his purpose best, with this sole difference, that the self-appointed public prosecutor may inflict even greater mischief with the weapon of the law than the savage with the knife, and more securely, this evil is added, _viz._ that this private avenger of public wrongs may adopt the form of a secret information before a Grand Jury, thus avoiding the necessity of appearing as the accuser, unless he chooses so to do, at his own most convenient time, and always preserving the secrets of his own statements, by means of which the first blow at all events will have been successfully, irremediably, and fatally inflicted, and thus placing himself above any responsibility on that account. Then it has been seen, that at this stage of the proceedings, and under all the ignorance as to the prosecutor and as to the depositions upon which he is charged, inseparable from the nature of the proceedings, a man, reputed honourable, as unsuspecting himself as unsuspected by his fellow-citizens, may be dragged from his office and from the bosom of his family, with imminent risk to his business, and with still more fearful effect upon his dearest connexions; and under the shock of his own feelings, which so awful a situation must naturally produce, is conducted as a common felon under charge of the police to the station-house, and thence to the Old Bailey, whence he can only be suffered to depart (of course in exactly the same state of ignorance under which he entered the Court), when the person who arrested him shall have consented, and on such terms as he shall consent to; and then only will he be allowed to return to his distracted family and prepare his defence--against what? against a technical definition of some facts in which he has played some part, but which being so defined as to square with the application which may be meant to be made of a certain Act of Parliament, is sure to bear no kind of resemblance to the real manner in which the said facts occurred, and of course none at all to the impression which they left on the mind of the accused, or to the form in which alone they can present themselves to his mind; and, therefore, such a definition can convey no information of the nature of the depositions secretly made against him, and cannot consequently assist him in preparing evidence against them. He must launch into the regions of imagination for every possible construction which may be given by any man to those facts which have been really done by him, and prepare evidence upon every one of such possible constructions, at an expense and amidst perplexity which may be supposed, and after all most likely to no purpose, for probably the construction to which the proof will be directed by the prosecution may be one against which no counterproof has been prepared; and indeed it will be so, for with this very object the proof will be directed to the construction least likely to occur to the accused, and that upon which a counterproof will be most difficult--for all which the nature of the Act of Parliament has been seen to afford peculiar advantages.

In this state of things the trial comes on. The facilities thus far given to an unknown accuser have been seen, and to so frightful an extent, that even if the trial proceeds no further, an amount of incalculable and irreparable evil and misery may have been perpetrated. These facilities, it has been further seen, are not at all balanced by the strictness of the requirements of the law from the prosecution, they are all applied against the accused. The definition of the crime by the Act of Parliament is itself loose and capable of an unlimited application, and it is understood and laid down in the very largest, thereby including acts which are notoriously and expressly admitted to be in themselves perfectly innocent: the only qualification is the _knowledge_. This is brought to a lower point in the scale, _viz._ _suspicion_. With a show of ingenuousness, as if to put down _a quibble_, which in Court sounds like a zeal for the truth, the question is made to be, not whether _you knew_, but whether _you suspected_; and next, whether _you had reason to suspect_; the tendency really being towards the real point, to which you are only being gently let down, _viz._ whether witnesses can be found who will say that they themselves _knew_ very well a great many things, which ought therefore to have been known by yourself, and that therefore you must at least _have suspected_.

Then the prosecution is not limited to the proof of one particular charge: here it is suffered to remain quite at large--they need not define the act they mean to charge, whether it is this, or that, or any thing else, upon the accused. The knowledge of the intent, in which every lawyer in the land whom you may consult previous to entering into any operation, will tell you, _before you are indicted_, that the guilt consists, after being brought down to a lower point, as observed before, is made out to be, 1st, any knowledge, not the knowledge in the particular case; 2nd, the knowledge of _others_, not _your_ knowledge; and the proof of it is no further put upon the prosecution than so far as to make out a case of _probable knowledge_, founded upon evidence of some general acts done by certain persons on other occasions, not the one in question, in distant countries--acts to which you are not shown to have been a party, or even probably acquainted with--persons in respect of whom all your proceedings in England are admitted to be in themselves, and as done towards them, perfectly innocent; such acts being done upon such other occasions by such persons in countries far away, little known, with which no regular means of communication exist--countries almost unknown to every one in England, and not at all proved to be known to yourself: and all this evidence given by individuals not in circumstances analogous to those in which the accused stands, but by individuals, and by no others, who in the exercise of a peculiar duty have sometimes visited the countries in question; and therefore leaving the whole of the case open to this remark, that whilst it is not at all shown, either from your own acts, or from the facts themselves, that you in England must necessarily _have known_, there is an evident impropriety in pushing the witnesses to the extent of proving, that nothing but what they said to have happened on other occasions in other places, could have been the ultimate issue of an unaccomplished speculation, intercepted by one of the witnesses, to his evident advantage.

It has lately been shown that such a case of probable knowledge, so made out, and so substantiated, will go to the Jury; and in going to the Jury nothing will avail you, as far as the law goes, but your being able to give “a plain and simple account of what was intended by a foreign merchant residing abroad,” whom you must even bring over to give evidence of what he intended to do with goods shipped by yourself in England, in consequence of a simple order as a mere commission-agent, or to show an impossibility of your being aware of that intent whatever it may be. Without complying with one or other of these two requirements, your case shall go to the Jury, accompanied by every unfavourable inference; and what should have been for your advantage is turned against you. The readiness and openness of the party accused in giving every explanation upon the very first intimation of a suspicion existing on the subject--the credit attached by every one capable of correctly estimating those explanations, whatever circumstances of a favourable nature may lie on the very surface of the case itself--the respectability of the accused, his rank in society, and high character, as vouched by men of the first standing, and who have every opportunity of knowing him and his acts--his wealth, his education, his knowledge--qualities peculiarly adapted to this kind of felony, which is intimated to be the felony of the honest, the wealthy, the educated, the well-informed--all these things seem in the exposition of the law to be literally against him. Nevertheless, these circumstances, combined with the impression produced by the inquisitorial nature of the original proceedings, together with the irresistible force of that axiom, that “a man must be proved to be guilty, and not called upon to prove himself innocent,” may--and thanks be to God, did, in the instance before us--blunt the edge of the murderous weapon brandished over the head of the accused.

There may be something so revolting in the whole conduct of such proceedings to the consciences of men, as to stand in the way of a conviction by an English Jury; but it has been seen in what way every other indignity may, at all events, be safely inflicted; and as affecting men and families of certain education and feeling--who, be it never forgotten, are the very parties said to be most obnoxious to the charge--a verdict of guilty need not arrive, to produce evils as great or greater than any penalties which it is possible for any human law to impose. And when it is considered--first, that the legitimate popular sense of words is distorted in order to call _slave trading_ that, which is neither directly nor indirectly _dealing in slaves_; secondly, that under the guise of a question of fact, a very subtle metaphysical argument about the nature and the degree of knowledge in the mind of an individual, is the thing really submitted to minds the least likely to apprehend the very nice distinction upon which the decision must hang--and, lastly, when every means are industriously resorted to in order to make it appear that the crime largely prevails in the class to which the accused is likely to belong, and to represent that the only difficulty is to get over the technicalities of legal evidence, but that moral evidence abounds--when all these things are taken together, it is easy to discover how much even the failure of such a prosecution as this, facilitates the next attempt: perhaps it may be practically found that it does so, more than its success could have done.

The resolution of the London Committee of the Anti-Slavery Society of the 8th of December, which has been already quoted, broadly states the prevalence of the crime among British merchants; and another, of a still more recent date, besides repeating the same assertion in another form, clearly intimates that the obstacle to its being visited as it deserves, does not consist in the want of proof of the existence of the guilt, but in “the difficulty encountered in the course of the prosecution in an English Court of Law:” that is, in the technicalities of the rules of evidence, even after the stretch of these rules, which this particular Act of Parliament would, by the experience of the late proceedings, seem to demand.

These resolutions, just published, passed by the Committee on the 29th December, are as follows:--

“Zulueta’s Trial.--At a meeting of the Committee of the British and Foreign Anti-Slavery Society, held at 27, New Broad Street, on Friday, December 29, 1843, George William Alexander, Esq., in the chair, the following resolutions were adopted:--

“I. That this Committee, regarding the recent trial of Pedro de Zulueta, Jun., on a charge of slave trading, in the Central Criminal Court, on the 27th of October last, and following days, as an event of the highest interest and importance, feel it their duty to express their sentiments on the state of things which has been developed by it.

“II. That, abstaining from all comment on the verdict of the Jury, this Committee regard the following points as brought out with great force by this trial, _viz._--

“1. That articles of British manufacture are principally used on the coast of Africa in barter for slaves.

“2. That British merchants who are engaged in furnishing such supplies to slave traders are practical supporters of the African slave trade.

“3. That, although a British merchant may furnish supplies to the most notorious slave traders in the world, the evidence by which a charge of aiding and abetting the slave trade can be substantiated against him is of such a nature that it is extremely difficult, if not almost impossible, to prosecute such an offender to conviction.

“4. That the practice of aiding and abetting the slave trade by supplying goods to slave traders prevails to a considerable extent among British merchants, and that, by a portion of the mercantile community, it is not regarded with the sentiments due to its flagitious character.

“III. That this Committee regard in particular the last fact now stated with the deepest and most poignant regret; and that they earnestly invoke, not so much the fear of punishment as the sense of honour, of justice, and of benevolence, in the British community, for the correction of so great an evil.

“IV. That the difficulties encountered in the course of this prosecution in an English court of justice, and the extended ramifications of the slave trading interest which have been developed by it, have, in the judgment of this Committee, confirmed the principle held by the British and Foreign Anti-Slavery Society, that the only effectual mode by which the slave trade can be abolished is the abolition of slavery itself.

“JOHN SCOBLE, Secretary.”

In these resolutions, the Committee describe the particular matter which they had under their consideration, _viz._ the supply of British goods. Not so in the previous resolution of the 9th of December (see page xxvi). In it a hope is expressed, that by the proceedings against Pedro de Zulueta, “a salutary check will be given to the notorious implication of British capital and commerce in that nefarious traffic.” How this implication takes place is not pointed out. Upon the merits of the matters contained in these resolutions, it is not, of course, my intention to enter; I take them as they are put forth, for the only purpose which perhaps gives them any value or importance, _viz._ as expressions of the sentiments and opinions of people who show every disposition to sanction, and have the pecuniary means required in order to encourage or to assist others in the use of that power of private prosecution which every one possesses, even if they themselves are not inclined to exercise it in their own persons.

Now, although it is not distinctly stated in the resolution just quoted how this _notorious_ implication of British capital is supposed to take place--not to say any thing at present about a most unjustifiable use of the word _notorious_, which, in these matters, is constantly made--the mode in which the implication takes place must be supposed to be large enough to be notorious--large enough, when even a check to it is made the object of hope and the subject of a resolution, which, as it conveys a serious charge against fellow-citizens, nothing but a very overwhelming sense of the necessity of a _check_ could have induced the Committee to overcome the painfulness of publishing. The term could not properly apply to any direct concern in the slave trade; _that_ would be something more than _implication_. It cannot be confined to the supply of goods, since this is a subject treated in a separate set of resolutions. It must be taken to apply to other operations also, such as occur in the progress of a mercantile intercourse with other countries in which slavery, or the slave trade, are permitted to exist, and must apply to all or any transactions with those countries, at least, unless a clear and distinct separation can be made that will render it quite certain and quite capable of proof that neither the slave trade nor slavery can possibly be forwarded directly or indirectly by the transaction. This is the only certain way of avoiding _implication_. This sense of the charge against British merchants at large, is perhaps the only one which can render either intelligible or practicable the observation which was so emphatically delivered by the learned Serjeant Bompas in his opening speech at the trial, that “if merchants in this country would not accept bills drawn by slave traders, if they would not send goods from this country to be employed for the purpose--in fact, the trade could not be carried on at all.”

And whether this rather extraordinary assertion be or be not correct, I deal with it as with the resolutions of the Anti-Slavery Committee--it is quite enough, upon such a question, and with such momentous interests at stake, that such opinions prevail in certain quarters, and that the power exists of giving them that fatal effect which these proceedings reveal, in order to force upon us, as merchants, the consideration of whether any mercantile transactions whatsoever can possibly be carried on with countries wherein the slave trade or slavery exist, with any real safety to our persons and to our property, whilst things remain as they have been shown to be in the practical development of the law.

It is very true, that previous to the late elucidation of its working, there were such high legal authorities on the subject, as will be found in the pages immediately following this address; and even now, if a case is placed before the very highest counsel of the land, you will be told that _knowledge, wilful knowledge_, of the _guilty_ intent can condemn the acts upon which you are seeking advice--that that, of itself, will condemn the most indirect--and nothing short of that can condemn the most direct act of abetting the slave trade. But, in order to make good a charge, the evidence of a _probable knowledge_ is made up of those very acts which, without presupposing the knowledge, you had been told are innocent, perfectly legal, and such as you could perform. When once that case of probable knowledge is thus made out, you are called upon to meet it with a case of your own, in which you cannot allege, with any success, the innocent nature of your acts; for although those have been already declared to be innocent in themselves, they are also taken as evidence that you must be possessed of _a knowledge_ of what they were intended to be made subservient to by a foreigner at some thousands of miles distant, in a country which to you may be _terra incognita_.

The question resolves itself therefore into one of prudence, about which you will be told by the learned Counsel, and properly told, that you alone can be, and you alone must be, the judge, _viz._ whether, under the state of the law which has been developed, it is safe to enter into any dealings, not which you know or suspect (this is _a fraud of the law_), but which _may be_ rendered subservient, however indirectly by others, to a slave trading purpose. The letter of the law seems to speak of _knowingly and wilfully_ aiding and abetting the slave trade, and so it is expounded by the highest legal authority of the land, when consulted upon any one case in perspective; but the practice renders this a most _egregious fraud_ on the part of the law itself, which presents itself under false colours; for, whilst in theory it does not permit of any other advice being given for its observance than that just mentioned, in practice it has been seen how the proof of your knowledge is established, not by evidence produced against you, but by that which you do not produce when a case of probable _knowledge_, founded upon knowledge of others in totally different circumstances, has been made out.

These things speak for themselves and show what is the practical situation of merchants trading with countries in which dealing in slaves and slave negotiations are both legal and of common occurrence. I need not say, that the United States, Cuba, Brazils, and a large portion of Europe, without talking of Africa, fall exactly under this description. It has been admitted, for indeed it cannot be denied, that it is impracticable to draw a line of separation, in order to distinguish the illicit from the licit traffic, in countries where they both subsist, for they are interwoven and mix themselves with, and merge the one into, the other. This is perfectly clear, and indeed the only intelligible account of the matter. Under such a view of the nature of the thing--after what has been brought to light in the late proceedings as to the mode in which a man may be attacked, with ruin staring him in the face at the first onset, whatever the subsequent result may be, seized on--laid hold of at any, perhaps the most critical, moment--after what has been seen of the method in which his prosecution will be suffered to be carried on, and the manner in which the evidence will be made to bear, in order to prove the _knowledge_ which constitutes the guilt--after seeing that no precaution can guard a man against the attack, and no endeavour to ascertain the real sense of the treacherous law, which speaks one thing and means a very different one--after seeing that as a merchant of wealth, character, and education, he carries in those very circumstances as many presumptions of guilt--after it has been shown that the only thing which can save him, according as the law is laid down and administered, is that which in the nature of mercantile transactions is, and must be in almost every case impossible--after all this, which the late proceedings have so strongly brought to light--there remains but one safe course, _viz._ to abstain from all mercantile intercourse with countries in which slavery or the slave trade exists.