Chapter XVII: Part 17

Henry Worsley Hill, of Great Rider Street, in the parish of St. James,
Esquire, a Commander in Her Majesty’s Navy, and Sir George Stephen, of
King’s Arms Yard, in the city of London, the solicitor for the
prosecution, severally make oath and say,--And first, the said Henry
Worsley Hill for himself saith, that he is under orders to proceed to
the Gold Coast on the western coast of Africa, to assume the
government thereof with the least possible delay, and that
arrangements are now in progress for this deponent to depart by the
end of this present month. And this deponent also saith, that the
public service will sustain considerable inconvenience by any delay on
the part of this deponent in proceeding to Africa as aforesaid at the
time now appointed, and that he this deponent has no expectation or
hope of obtaining further leave of absence. And this deponent, Sir
George Stephen, for himself saith, that the said Henry Worsley Hill is
a most material witness on behalf of this prosecution, and that
without his evidence this deponent cannot safely proceed to trial; and
this deponent, Sir George Stephen, further saith, that he has perused
a copy of the affidavit of Pedro de Zulueta the younger, and John
Lawford, made in these matters, and that in consequence of the
misdirection of the same, as this deponent believes, he, this
deponent, did not receive a reply to his letter of the 12th of
September, 1843, set out in the said affidavit, and therefore
proceeded in his preparations for trial. And this deponent saith, that
he is ready to proceed to trial at the present session of this Court.
And this deponent further saith, that he has caused another witness in
this matter to come over from Paris, where such witness is permanently
domiciled, and that such last mentioned witness incurred much
inconvenience and expense in so coming, and that as he habitually
resides out of the jurisdiction this deponent has no means of
compelling him to appear again, should the trial of these indictments
be deferred. And this deponent saith, that the evidence of such
last-mentioned witness is most material. And this deponent further
saith, that he has subpœnaed three other witnesses to come to London
from a great distance, one of whom is a sailor, and another of whom is
an officer of rank in Her Majesty’s navy, and that the evidence of all
the said last mentioned witnesses is most material, and that the said
indictments cannot be safely tried in their absence, but that from the
nautical profession of two of them, this deponent believes it to be
very doubtful if he will again be able to compel their attendance. And
this deponent further saith, that he has also subpœnaed another
witness who habitually resides at Seville in Spain, and who is about
to return to Seville, as this deponent is informed and believes as
soon as the trial is over, and this deponent is informed and believes
that the evidence of such last mentioned witness is material. And
deponent saith, that he has no hope of again collecting together so
many important witnesses whose professional avocations necessarily
render their simultaneous presence in this country very uncertain. And
this deponent further saith, that the said defendant, Pedro de Zulueta
the younger, cannot have been taken by surprise by these indictments,
because the said Pedro de Zulueta the younger, volunteered, as this
deponent is informed and believes, to be examined as a witness before
the Select Committee on the West Coast of Africa, and was so examined
on the 22nd and 23rd days of July, 1843, when the nature of the case
upon which this prosecution is founded was stated to the Committee,
and the said Pedro de Zulueta admitted that he had received copies of
the evidence given by Captain Hill on the 29th of June, the 4th of
July, and the 6th of July previously. And this deponent saith, that
the said Pedro de Zulueta the younger, did upon such examination admit
that the house to which he belongs had been charged with criminality,
and with having for a length of time been agents to slave dealers, and
the said Pedro de Zulueta the younger avowed his reason for wishing to
be examined before the Committee to be, that the statements contained
in the said evidence were incorrect. And this deponent lastly saith,
that in another part of such examination, the said Pedro de Zulueta
the younger, in answer to the question, “Is there any other part of
the evidence which has been given that you wish to observe upon?”
after denying all knowledge of a person of the name of Kidd, adds,
“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, but I did not
know even that, though I have managed all this business.”

(signed)

_H. W. Hill._

_George Stephen._

Mr. Serjeant _Bompas_. My learned friend, Mr. Clarkson, has called upon me to make some observations upon this affidavit. I should not in addressing your Lordships at all wish to object to the postponement of this trial, if it could be considered even by the defendant or his counsel more advantageous to him that it should be postponed, could I consent to it without feeling that the trial could not fairly take place at any other period. I cannot help thinking, while your Lordship is looking at this affidavit, that it is one such as has been rarely produced before a Court, in order to found an application for the postponement of a trial. This indictment was preferred above a month from this time; that is, four weeks from this time. It is true, as has been stated, that no inquiry took place before a magistrate, but when long before that period at which the inquiry could have been instituted, if such had taken place, this matter had been inquired into before a Committee of the House of Commons, when Mr. Zulueta appeared before that Committee, and stated that he had had the management of all the business, and appeared in order to explain the transaction--

Mr. _Clarkson_. No.

Mr. Serjeant _Bompas_. I will refer to the words of the affidavit.

Mr. _Clarkson_. I beg pardon.

Mr. Serjeant _Bompas_. When it appears that that inquiry had taken place before a Committee of the House of Commons, this proceeding cannot have been instituted without ample notice of all that is to be now inquired into, as far as any party, under the circumstances, charged with felony, can be supposed to know the nature of the evidence to be brought against him. And what is the foundation of this application? Not that some material witness is absent--some material witness whom they have subpœnaed, and whom they know to be material, and whose attendance they cannot obtain; that is not the foundation of the application. The ground of the application is, that a person of the name of Toplis, who was managing clerk to Mr. Zulueta, was absent at Gibraltar, at the time the indictment was found. It is not even that he has not arrived: he arrived on Sunday and is now able to give any evidence that the defendant may require. It is said, that he is able to make communications in respect to the evidence of persons, whose names were not known to the defendant till he arrived, and upon whose absence the application was founded, and that it is now requisite to send for some witnesses from Liverpool, and I hardly know where. The affidavit is very singularly sworn; and when my learned friend says, “from Spain,” and so on, there is no such statement to be found in it. That which is stated is, that it _may_ be necessary to send for various witnesses, that it _may_ be necessary to procure the attendance of witnesses from the settlement of Sierra Leone, as well as from Spain. My learned friend, in citing it, said, that they were to obtain witnesses “from Spain.” The affidavit is, that it _may_ be necessary to have witnesses from Spain--that it _may_ be necessary to have witnesses from Africa, so that there is no statement whatever that there is any witness in Spain who would be wanted or can be expected, or that there is any witness in Africa who will be wanted or who is expected; there is no such statement at all. The statement is, “That it will be absolutely necessary for the said Joseph Toplis to repair to Liverpool for the purpose of procuring the attendance of divers persons, who are necessary witnesses on behalf of this deponent, who are not known to this deponent, and whose names this deponent had not the means of procuring until he had communicated with the said Joseph Toplis.” Certainly that is a statement of a very extraordinary kind: no doubt it was put into the affidavit, believing it to be true, but the statement made by Mr. Zulueta before the Committee of the House of Commons was, that he had had the management of the whole of the business; and to suppose that there is a witness in Spain, that there is a witness in Gibraltar, Mr. Toplis, and that they can make no inquiry as to the names of the individuals till he comes over, is the most extraordinary statement ever laid before a Court. As far as this affidavit goes, it does not appear that they have taken the slightest steps in order to ascertain by any inquiry as to any witnesses or any transactions; but Mr. Toplis is to go to Liverpool to hunt out for witnesses. Who they are does not appear: not any persons who are certain to be witnesses, but that he is to go to Liverpool to hunt out for witnesses who may be--

Mr. Justice _Cresswell_. And whose names the deponent could not procure till Mr. Toplis came.

Mr. Serjeant _Bompas_. “And whose names this deponent had not the means of procuring until he had communicated with the said Joseph Toplis.” He could hot tell certainly who Joseph Toplis would require till he had communicated with him; but that he could not have ascertained whether any witnesses were necessary for his defence would not appear satisfactorily to your Lordships. It is a case that will require examination by the Court, in order to do that which would be the object of the Court, to have the case most fairly and properly inquired into. Your Lordships see of necessity that the witnesses for the prosecution are witnesses in a situation not easy to be obtained upon any future occasion. There is one who is under orders to proceed abroad in order to take the government of the Gold Coast: there are others who are officers in the navy.

Mr. Justice _Erskine_. What was the date of the inquiry before the House of Commons?

Mr. Serjeant _Bompas_. 1842, my Lord.

Mr. Justice _Erskine_. Your affidavit states 1843.

Mr. Serjeant _Bompas_. It is a mistake, my Lord. It should be 1842.

Mr. Justice _Erskine_. Subsequently to that inquiry was any notice given to the defendant that it would be made the subject of a prosecution?

Mr. Serjeant _Bompas_. No notice, my Lord, till the bill was found.

Mr. Justice _Erskine_. What was the date of the transaction to which the indictment refers?

Mr. Serjeant _Bompas_. There was then an appeal pending before the Privy Council.

Mr. Justice _Erskine_. What was the date of the transaction to which the indictment refers? I want the date of the occurrence.

Mr. Serjeant _Bompas_. 1840; the end of 1840 and the beginning of 1841. The capture of the vessel, to which reference was made, was in February, 1841. She left England on the 9th of November, 1840. She was captured: there was a proceeding in the court abroad; she was condemned, and there was an appeal before the Privy Council.

Mr. Justice _Cresswell_. The ship sailed from Liverpool?

Mr. Serjeant _Bompas_. Yes, my Lord.

Mr. Justice _Erskine_. With a cargo of some sort. One question will be, whether it was a cargo adapted to the trade upon the African coast, or for dealing in slaves.

Mr. Serjeant _Bompas_. No doubt.

Mr. Justice _Erskine_. Was Mr. Toplis the managing clerk at Liverpool?

Mr. Serjeant _Bompas_. Yes, my Lord. It is stated that he was the managing clerk at Liverpool; but to suppose that the shipment of any firm at Liverpool to say that they can obtain no evidence of that shipment except by a managing clerk, is such a statement as can hardly be credited of any merchant. That is the statement; but they do not state any circumstances to explain it. That it is necessary to have his managing clerk to state the names of the parties concerned in the shipment, it is one of the most extraordinary statements ever made. Upon this statement your Lordships will have to consider the foundation of the application, and your Lordships will take into view all the circumstances of it. This case is to be proved, as it must necessarily be, by various officers in the navy besides Captain Hill, who is about to go out as governor of the Gold Coast; by officers in the navy, and sailors, and foreigners, now here ready to give their testimony.

Now, my Lord, there is one circumstance singularly deficient in this case, and without which there has never been a case in which the trial of any cause has been put off. The affidavit does not give the slightest suggestion when they are likely to be ready to take their trial; so that it is utterly impossible that the trial can be available, if they are to come when the witnesses for the prosecution may be scattered over the whole world: the prosecution may be gone through, but it would be a mere formal statement. I am willing to give due weight to every argument on behalf of a person charged with an offence, in order that the charge may be fairly and properly tried in respect to him; but at the same time there are duties on behalf of the prosecution. The crime cannot be inquired into unless there are the means to procure the evidence. If these witnesses are here, and this party has not taken the means which he might have done to have the trial now take place, and if he does not give us the slightest information when it is to be tried; if a person charged with an offence is to choose the time for trying it, every trial of this kind would be an utter abortion, because unless the witnesses for the prosecution are here it is impossible there can be a fair trial.

Now there is not a statement, there is no pretence, why the witnesses for the defendant could not have been here at the present time. To say that there were no means of knowing the general nature of the charge, and knowing the whole substance of the defence, and having the whole matter fairly considered and put into form before the Court, is what you cannot believe. Your Lordships cannot believe, that though Mr. Toplis may have been an important witness, that the general subject of the charge inquired into was not generally known, and that all the witnesses for the defence, such witnesses as were thought necessary, must not have been generally known to the defendant. There may have been a witness whose name was known only to Mr. Toplis; there may have been one or more, but it is impossible that the case might not have been got up with the exception of Mr. Toplis’s evidence, and might have been ready for trial on this day. But if they have utterly neglected to take any step till last Sunday, the time as I understand it, they have no right to come now and ask your Lordships to put off the trial. There is no statement of any sort or kind of any individual witness necessary, except those suggested to be at Liverpool. Mr. Toplis could not know the witnesses abroad more than any other gentleman. Suppose there are witnesses abroad--have there been any, the slightest step taken to bring them here? What steps have been taken? He says there are witnesses from Africa: when are they to be here? when will they come? when is the trial to take place? There is not a single intimation of the time when they will be ready to take their trial. It is to be put off till the witnesses for the prosecution are scattered, and it is impossible to have the trial. Undoubtedly it is difficult to have a number of witnesses of this description ready before the Court, and to get their testimony together. But what do they say? They say that it may be necessary to get some of the sailors of the Augusta. Was Mr. Toplis necessary for that? Why have they not taken any step to get the evidence of those witnesses? They do not appear to have taken any one step to be prepared for this trial, although then knowing that it was a matter of difficulty to collect a number of witnesses like these. If it is to be held that they can at their discretion from time to time put off the case, it is a mere abortion to attempt to prosecute any person, however guilty, in the situation of Mr. Zulueta. However important it is for the defendant--and I would not wish to withhold that from the consideration of your Lordships--it is equally important for the public good, and as well worthy of your consideration. It would be with the utmost difficulty, if there is any probability of doing it at all, that the witnesses could be got together again. If they had taken every step, and gone down to inquire at Liverpool, and proceeded as far as they could and had the means in their power, and yet could not be ready, that would be some ground for the application; but they do not appear to have taken any step--they appear to have relied upon putting off the trial, considering that that would be as good a protection as any witnesses could possibly give them.

I certainly do feel that there is a ground of opposition to this application which has never failed when there is no suggestion at all in the affidavit of what time they expect to be ready for trial. I believe there has never been a case in which a party has not given the Court some reason to believe that, if the trial is put off, they will be ready to try at a given time: on the contrary, here it is put as if it was quite loose--there _may_ be some witnesses from Spain and Africa, though they have had a month during which they might have made inquiries.

I have thought it right to submit these observations to your Lordships, both for the sake of the prosecution and the defendant. If the prosecution is well founded, it is of the utmost importance that it should proceed; on the other hand, it is no doubt of importance that the other side should have an opportunity of bringing the case before the Court in all the views of which the case is capable: but the case is one in which your Lordships must see the great inconvenience to the prosecutors, and the difficulty of getting the witnesses together, and I trust your Lordships will feel that it is one which ought not to be adjourned; but if it be adjourned, it must be to some fixed time at which it must be understood that the case will come on.

Mr. _Payne_. My Lords, I will add but two or three words to what Mr. Serjeant Bompas has already addressed to your Lordships. I must say that I never in the course of my experience met with a paragraph in an affidavit to postpone a trial similar to the first paragraph in this affidavit; it is merely this, “That it will be absolutely necessary for Joseph Toplis to repair to Liverpool for the purpose of procuring the attendance of divers persons who are necessary witnesses on behalf of this deponent, who are not known to this deponent, and whose names this deponent had not the means of procuring until he had communicated with the said Joseph Toplis.” Now it is generally required, in affidavits of this description, that if you do know the names of the witnesses, and where they are to come from, that you should state them to the Court, that the opposite side may be in possession _bonâ fide_ of the nature of the defence. If Mr. Zulueta had sworn that he did not now know the names of the witnesses, there would be some reason for not putting in the names; but he does not say that--he says he did not know them till Mr. Toplis came. Mr. Toplis came last Sunday night: he could furnish the names; and if he had put the names of the witnesses and the places they were to come from in the affidavit, instead of “divers witnesses,” it might be in the usual form upon which the Court may sometimes postpone a trial. I say that that expression is not sufficient. I say that the Court are entitled to have information of the names of the persons necessary as witnesses, in order to bring the case within the ordinary rule.

Then, my Lords, the only other part of the affidavit which has not been noticed by my learned friend, and which may be touched upon on the opposite side, is the affidavit of the attorney that he has not been able to prepare the briefs. Mr. Zulueta having stated that he was the person who managed all this business, he must have possessed information sufficient to enable the attorney in four weeks to prepare the briefs; and if he has not furnished that information, it is owing to neglect on the part of Mr. Zulueta. Their affidavit is loose and defective--ours is precise. We say we do not think we can get Captain Hill again: he states, that he is under orders to sail. Under these circumstances, we must bow to what the Court think right to decide; but we consider that a case has not been made out to justify the Court in granting this application.

Mr. _Clarkson_. My Lords, in answer--

Mr. Justice _Erskine_. You cannot ask for any further postponement beyond the next sessions.

Mr. _Clarkson_. I did not think that your Lordships would assume jurisdiction to postpone it beyond that.

Mr. Justice _Erskine_. We cannot listen to that part of the application with respect to the witnesses from Spain or Sierra Leone; they are not stated with sufficient accuracy.

Mr. _Clarkson_. I quite feel that, my Lord; I only wish to say this, that if my learned friend comes here to ask for the costs of the day, or for what my learned friend calls terms--

Mr. Justice _Erskine_. That is not necessary.

Mr. _Clarkson_. There is some mistake about it; such a thing was never heard of here: but there is this observation to be made in answer to the greater part of what my learned friends have said--for twelve months and more have these parties who are prosecuting been taking steps, and yet to this hour nobody knows who they are, no name has been furnished: for twelve months have they been about that which they now call upon a respectable merchant of London to meet in a month; and two or three years have elapsed since the vessel was condemned.

Mr. Justice _Erskine_. It is the duty of the Court to take care that the ends of justice shall not be defeated by too easily yielding to applications of this nature; but it is equally the duty of the Court to take care that a man charged with a felony shall not be brought to his trial until, he is able to present such an answer as the circumstances of the case will admit of.

It appears that the offence with which the defendant is charged is alleged to have been committed in 1840. The grounds for charging Mr. Zulueta with participation in that offence may have originated in the examinations before the Committee of the House of Commons in 1842. If it did then originate, the parties who conduct this prosecution must have known what the foundation of that accusation was, and if they intended to charge Mr. Zulueta with that offence, and particularly if they meant to support it upon the testimony of witnesses who might be absent at a future time, they ought to have taken steps by which to have secured the attendance of the defendant, and have taken him before a magistrate, and examined the witnesses there. But it appears, though this examination took place in 1842, no steps are taken in the prosecution till August 1843, and that is just upon the eve of the departure of one of the witnesses, from which circumstance the Crown, it is said, cannot avail itself of his presence, because he is going upon a public mission to some other part of the world. This is a prosecution of a singular character, and the Crown will take care that the ends of justice are not defeated by their sending away an officer whose testimony is necessary for the establishment of such a charge. I do not believe there is any risk of the ends of justice being defeated by his absence.

Then is it fair to call upon the defendant now to present himself to the Court? It appears that a person of the name of Toplis had the management of this business at Liverpool, where the circumstances are said to have originated which form the foundation of this charge; he is abroad, and from the year 1842 no notice is given.

Mr. Serjeant _Bompas_. The Privy Council did not decide.

Mr. Justice _Cresswell_. We have nothing to do with the Privy Council.

Mr. _Clarkson_. There is no decision by any body. It is no prosecution by the Crown.

Mr. Justice _Erskine_. I was not saying any thing imputing improper motives to the prosecutors, but stating facts, that no notice had been given to the defendant. If, in the year 1842, any notice had been given to Mr. Zulueta that this prosecution was to be instituted, then if he had sent Mr. Toplis abroad, he would have no right to avail himself of that circumstance; but in the absence of any notice of that sort, he had a right to assume that the evidence before the House of Commons was satisfactory, and that there was no ground to institute a prosecution, and he might then fairly send his clerk abroad. Then it appears, that, having been sent abroad, immediately the prosecution was instituted a letter was sent to him, in consequence of which he returned to this country: he only arrived on Sunday last; and it is impossible, from the state of the facts, that Mr. Zulueta could be in a state to prepare the requisite instructions for counsel, and get those witnesses necessary to enable him to proceed with his defence. We therefore think that this trial should be postponed till the next sessions. We do not yield to the necessity suggested of sending to Spain or Sierra Leone; there is no sufficient ground for that laid in the affidavit.

Mr. _Clarkson_. The form will be, that your Lordships will be pleased to respite the recognizances of Mr. Zulueta and his bail to the next sessions.

Mr. Justice _Erskine_. Yes.

(_The recognizances were enlarged, and the parties left the Court._)

TRIAL
OF
PEDRO DE ZULUETA, JUN., ESQ.,
AT THE CENTRAL CRIMINAL COURT, OLD BAILEY,
ON FRIDAY, 27th OCTOBER, 1843,
BEFORE
The HONOURABLE Mr. JUSTICE MAULE,
The HONOURABLE Mr. JUSTICE WIGHTMAN,
AND
Mr. COMMISSIONER BULLOCK.

_Copy from Mr. Gurney’s Short-hand Notes of the Proceedings on the
Trial of this Indictment._

THE QUEEN, }
_v._ } INDICTMENT FOR FELONY.
PEDRO DE ZULUETA. }

Mr. _Kelly_. My Lord, with respect to Mr. Zulueta, it is very important that I should be able to communicate with him from time to time as the trial proceeds. May I ask of your Lordship some indulgence to permit him to sit near his counsel?

Mr. Justice _Maule_. What is the charge?

Mr. _Kelly_. The charge under prosecution is felony; the felony being, the fitting out a ship with certain objects declared by statute to be illegal, namely, those of slave trading.

Mr. Justice _Maule_. I should wish that Mr. Zulueta, and every one else, should have the liberty of sitting by his counsel, but that is impossible. I understand an application was made in the case of a person of the name of Trotter.

Mr. _Kelly_. It has been done; there are many precedents. I do not ask it on the ground of any difference of rank or condition, but because the justice of the case requires it, particularly as he is a foreigner, a Spaniard, and many of the documents which will have to be referred to in the course of the proceeding are in the Spanish language, that I should be enabled to communicate with him. It is not at Mr. Zulueta’s own instance I make the application, but for my own assistance in the conduct of the defence.

Mr. Justice _Wightman_. A similar application was made in the case of Captain Douglas.

Mr. _Kelly_. That was not an application by counsel for the convenience of counsel, in aid of the justice of the case, but on the ground of his being an officer in the British army. That, if granted, might establish a distinction which ought not to be established; but in the case of Horne Tooke, where it became necessary for the merits of the case that there should be a constant communication between the counsel and the prisoner, it was permitted.

Mr. Justice _Wightman_. What was the charge against him?

Mr. _Kelly_. High treason. A case, I may venture to say directly in point, except that that was a weaker case than this, for this is a case of a foreigner, a Spaniard; and, as I have observed, most of the documents to which it will be necessary from time to time to refer, are in the Spanish language, and it is impossible I can do justice to his case if I cannot communicate with the prisoner so as to understand their effect.

Mr. Justice _Maule_. Have you the 9th vol. of Carrington & Payne? The difficulty stated is, that though the prisoner cannot come to his friend, his friend may go to him.

[_The 9th vol. of Carrington & Payne’s Reports was handed to his
Lordship._

[_The Witnesses on both sides were directed to leave the Court._

Mr. Justice _Maule_. Have you got the case of the King _v._ Tooke?

Mr. _Kelly_. No, I have not the book here, my Lord; but I remember the case.

(_The Report was produced._)

Mr. Justice _Maule_. In the Report in the State Trials of the case of Mr. Horne Tooke, to which you have referred, it appears that he claimed as a matter of right, the being permitted to sit near his counsel. The Lord Chief Justice says, “That is an indulgence which I have hardly ever known given to any person in your situation.” The Lord Chief Justice at that time was Lord Chief Justice Eyre. Mr. Horne Tooke says, “I am perfectly aware that it is unusual, but I beg your Lordship to observe that every thing in the course of these proceedings is likewise unusual. I beg your Lordship to consider that the proceedings upon the last trial will fill, as I am well informed by the short-hand writer, 1,600 close printed octavo pages. That trial lasted nine days; eight days trial, and one day between. The nature of the indictment is such, that it has been impossible for me to guess what would come before your Lordship: it has been equally impossible for me to instruct my counsel; they cannot know the passages of my life, and from what I have seen on the last trial the whole passages of my life, and those which are not passages of my life, but are only imputed to me, will be brought before you: how is it possible for my counsel to know those particular facts which are only known to myself? If ever there was a case where indulgence was fit to be granted, it is this; yet your Lordship will forgive me for saying that I claim it as my right by law, and do not ask it as an indulgence.” After more argument to that effect, the Chief Justice says, “Mr. Tooke, you have been furnished with that which the law considers as the necessary means to enable you to make your defence; you have had counsel assigned to you; they have had, or might have had, access to you at all seasonable hours; that is what the law allows you. You have taught the Court not to use the word indulgence, and you have pointed out to them their duty, that they are to give no indulgence. I am apprehensive that it would be considered as an extraordinary indulgence if the Court were now to do that which you ask, because that is not done to other prisoners; it was not done to another prisoner who went immediately before you, who had the same stake that you have, nor is it done to all other prisoners who do come to this bar, and therefore the Court are not permitted without doing injustice to others to grant that which you ask upon the ground upon which you ask it.” Then he goes on--“But you have mentioned another circumstance extremely material, and which will, in my mind, warrant the Court to do that which you think they ought not to do, to indulge the prisoner. You have stated the condition of your health, and that in the place in which you stand your health will suffer: the Court has no desire to put you under any difficulties; they wish that you should be enabled to make your defence in the best way imaginable; and if the situation in which you stand is really likely to be prejudicial to your health, and therefore likely to disable you from making your defence in the manner you might otherwise make it, I shall put it to my Lords to consider, whether you may not be indulged with that which you have now asked.

“Mr. Tooke--The Court will forgive me only for saying, that if, on the footing of indulgence, the Court shall not think fit to grant what I ask, I hope I shall not, after that decision, be barred from my argument upon it as a point of law.” Then the Chief Justice says--“You must state your whole case upon any matter that arises at once: the proposing it first in one shape, and then going on to state it in another, is carrying us on without end; if you mean to argue this as a point of law to be sure we are ready to hear you.” Mr. Tooke: “I beg your Lordship not to misunderstand me; I did so mention it at first, and did ask it not as an indulgence, if your Lordship will be pleased to recollect: I did mention, that if there were objections I should then argue it in point of law, thinking that I am well entitled to it by the principles, by the letter, and by the practice of the law: I did not mean to change my ground; I beg your Lordship will be pleased to recollect I excluded the idea of indulgence: I did not mean to take first one ground and then another, but I thought it possible I might save the time of the Court, therefore I left it to your Lordship to collect the sense of the Court even upon the score of health, which your Lordship mentions, to save time, and not to waste the time. I understood very well that after a decision I should not be permitted to argue it, and therefore I mentioned that, but not to change my ground; and therefore if your Lordship should find upon the score of what you call indulgence, I suppose in a different view of the word that I am accustomed to take, I rather understand that your Lordship means you are willing to grant it me upon the score of my health, in that case I do not desire to waste the time of the Court; provided it is granted to me, I am very happy and shall be glad to avoid the argument, if your Lordship will be only pleased to give me some intimation of your opinion.” The Chief Justice, after consulting with the other judges, says:--“Mr. Horne Tooke, I have consulted my Lords the Judges who are present, they feel themselves extremely disposed to indulge you on the score of your health; they think that it is a distinction which may authorise them to do that in your case which is not done in other cases in common; they cannot lay down a rule for you which they would not lay down for any other man living, but if your case is distinguishable from the case of others that does permit them to give you that indulgence which you now ask”--Then Mr. Tooke says:--“I am very much obliged to your Lordships, and am very well content to accept it as indulgence or any other thing. Undoubtedly it is very acceptable to me, and very necessary for my health; I am glad to save the time of the Court.” On that ground, after having attempted it on the ground I have stated, he was removed to the inner bar.

Now that case seems, I think, to establish that it is, in the judgment of the several judges who were here upon that occasion, a thing which ought not to be done unless under very special circumstances, and we ought to be on our guard against doing that which might have the appearance of treating one kind of felony, and one rank or class of persons, in a different way from another; or of intimating that, because a person is somewhat of a superior rank, he is to be treated in a different manner; and we are anxious not to do it in the way of favour or on any such ground as that, and we feel that we cannot grant this on the ground on which you put it. This seems to my learned brother and myself to be the same in fact as Mr. Tooke’s, though not quite so strong--a desire in the party to communicate with his counsel, which will exist in every case. It was not thought sufficient in that case: he was indulged only on the ground that his health was such that it would suffer from his remaining in the ordinary place: and here no such cause is alleged.

Mr. _Kelly_. It is my duty to acquiesce in the decision of your Lordships. I beg to say I did not put this on any distinction of rank.

Mr. Justice _Maule_. No; that we understand perfectly, and the Court is disposed not so to put it. I said, that lest there should be a feeling, though it was not put so, that there might be a distinction drawn between this and any other case on that ground. What other difference is there between Mr. Zulueta, charged with felony in slave trading, and any other person coming to that dock, charged with any felony of any other character, requiring wealth and capital to carry it on?

Mr. _Kelly_. I did not desire, in the least, to press it on that ground; on the contrary, I disclaimed it: I mentioned that which was the principal ground--that the documents are all in a foreign language; and that which I submitted to your Lordship was entirely my own suggestion, and not Mr. Zulueta’s: I acquiesced at once, as I ought, in your Lordship’s decision.

Mr. Justice _Maule_. The Court is so constructed that you can approach Mr. Zulueta, though he cannot approach you.

(_The Defendant took his place within the Bar, and was arraigned on
the Indictment for Felony._)

_Clerk of Arraigns._ How say you, are you Guilty, or Not Guilty?

_Defendant._ I am Not Guilty.

_Clerk of Arraigns._ If you object to any of the gentlemen who are called, you may make the objection before they are sworn; and it is my duty to inform you that you have a right to be tried, being a foreigner, either by a jury of half foreigners and half English, or by a jury entirely English.

_Defendant._ I have no wish; I am as safe in the hands of Englishmen as of any body.

_The following Jurymen were called and sworn:--_

1. John Foote.
2. William Jackson.
3. Robert Nagle.
4. Charles William Knight.
5. Michael Jones.
6. Richard Jessop.
7. William Hawksworth.
8. James Gillard.
9. Edward Findlay.
10. James Parker.
11. John Godfrey.
12. James Gordon.

(_The Jury were charged with the Prisoner in the usual form._)

Mr. Serjeant _Bompas_. Before I make the address which it will be necessary to make to the jury, will your Lordship allow me to apply on behalf of a witness, a gentleman who took the notes in short-hand of what took place before the Committee of the House of Commons? I, of course, do it with the consent of the counsel on the other side; it is, that he may be now examined, which will remove all question as to the propriety of the proceeding; that he may be now sworn and state that this blue book contains a correct account of what took place: that will, of course, be subject to such objections as may be made by my learned friend.

Mr. _Kelly_. My Lord, I understand that Mr. Gurney’s presence is required, for the purpose of justice in Wales, under an order from the Home Office. I perfectly agree, that it shall be taken upon his evidence that this blue book contains a true account of what took place before the Committee, subject to any objections as to the admissibility of the evidence, the matter standing as if Mr. Gurney had given his evidence in its proper order.

Mr. Joseph _Gurney_, sworn. Examined by Mr. Serjeant _Bompas_.

_Q._ Did you attend as short-hand writer before the Committee of the House of Commons, at which these proceedings were taken in short-hand?--_A._ I did.

_Q._ Is this book printed from your short-hand notes?--_A._ Mr. Zulueta’s evidence. I took the evidence of Mr. Zulueta; not the whole.

_Q._ Did you take the evidence of others?--_A._ Yes; of some others.

Mr. Serjeant _Bompas_. On behalf of the prosecution we admit that the other parts are taken from the short-hand notes: we shall want the evidence of Mr. Zulueta.

May it please your Lordship,

Gentlemen of the Jury,--It is my duty to call your attention to a case of very considerable moment. I am quite sure you will feel that all cases, in which the liberty and welfare of any person standing as a prisoner at the bar before you are concerned, are matters of considerable importance; but I cannot but think that this is one which will deserve your very particular attention. The case is, to you and to most persons, one of a novel description as a matter of trial. It is very rarely indeed, that offences under the Act to which your attention will be directed can be brought before a jury as the subject of their investigation. It necessarily will include a variety of facts, some of them being in some degree complicated; and it requires, therefore, that careful discrimination which I am quite sure you will be quite ready to give. To the prisoner, of course, it is of paramount importance, standing here before you upon his trial on such a charge as that which has been presented against Mr. Zulueta, and calls for the utmost possible attention. I do not consider that I should keep from you one thing which has been mentioned already in your hearing, that the prisoner at the bar is a person of wealth, and rank, and station. He is a merchant of the city of London. I am quite sure that that cannot make any difference in your consideration of the case, unless by increasing that interest which necessarily is excited by the respectability in life of the person who is standing before you on his trial, exciting you to greater vigilance to see that perfect justice is done as between him and the law. I am quite sure that you will see, that if he be innocent, you will, as you would in respect of every individual who stands before you upon his trial, take care that he shall not be convicted; but if, on the other hand, the evidence, when it is laid before you, shall satisfy your minds that he is guilty, it can in no manner or degree lessen the guilt of a person against whom such facts shall be produced, that he is in a station which should teach him better to obey the law of his country. So far as any such topic can be urged, on the one side or the other, to excite your utmost anxiety and most careful vigilance to ascertain the truth, I, on behalf of the prosecution, should feel that it is of great importance it should be exercised, because the truth, and that alone, ought to be, and I trust in all cases is, the object desired by the public prosecutor.

Gentlemen, the kind of charge is one that will require your very particular attention. The prisoner stands charged, “that he did illegally and feloniously man, navigate, equip, dispatch, use, and employ,” that is, that he did employ--that is the particular term to which I would direct your attention--“which in and by a certain Act of Parliament made and passed in the 5th year of the reign of his late Majesty King George the Fourth, intituled ‘An Act to amend and consolidate the Laws relating to the Abolition of the Slave Trade,’ was and is declared unlawful, that is, to deal and trade in slaves.” The other counts vary the charge in some degree, but in nothing that I believe will be material for your consideration, except that in the four latter counts he is charged with shipping goods on board the same vessel for the purpose of accomplishing the same object.

Gentlemen, it is now happily a matter of history of some considerable period back, that there was a contest in this kingdom by those who were anxious to put an end to what they rightly considered one of the greatest crimes staining human nature. On the 25th of March, in the year 1807, was accomplished that victory, I may say for humanity, by which, as far as the laws of this country could accomplish it, this kingdom was separated from that course of crime, which probably is almost the greatest blot that rests upon human nature; I mean, that that Act was passed which is called “the Act for the Abolition of the Slave Trade.”

Gentlemen, you are aware that before that time persons of wealth--for persons of wealth alone could engage in such an occupation, and unfortunately that which was called the slave trade was a source of great wealth--before that time no doubt persons of wealth engaged in that trade. That Act, as far as regarded any public Act, of course extinguished them; but from time to time, from that time to this present moment, though not of course engaged in public or in the immediate visible commerce which was the subject of condemnation by that Act, it has been more or less continued, and the course of the law has been from time to time by more and more stringent penalties as far as possible to put an end to it as respects this country; and it is impossible that you should not be aware that one great object of this kingdom in all its negotiations with all foreign countries is, as far as possible, to create one great combination among all the civilized part of mankind, uniting in extinguishing that which is a crime on the part of all engaged in it; and therefore it has become above all other things the duty of this Government, as far as relates to any individuals living within this kingdom, to the utmost possible degree to put an end to any connection with it of any sort or kind, and to prevent any persons who continue in this kingdom, and are subject to its law, from being in any way whatever connected with that which is considered a crime of the greatest magnitude; and it is with that view that the Act of Parliament which you have heard mentioned in the indictment, the Act of the 5th of George the Fourth, chap. 113, was passed, in order as far as possible to extinguish all connection of any individuals in this kingdom with the slave trade, and by a severe penalty to put an end to any such transactions. Indeed, when we consider the penalty, it is such as shows that the Legislature intended to render the punishment most severe: it is a penalty which subjects every person connected with that trade to transportation for fourteen years. But every single individual who, through any connection with that trade, is torn from his friends in Africa, and sent in the miserable way in which they must necessarily, if they survive the horrors of the voyage, be removed from that country to an interminable life of slavery--every individual suffers double and treble the penalty which is inflicted upon the criminal engaged in the trade; and therefore I feel satisfied that we shall not consider that penalty too severe, provided only the offence is fully proved: and the severity of the punishment ought to excite, I admit, to the utmost degree, your watchfulness to see that it is fairly and satisfactorily brought home to any man, because I take it any person on behalf of the prosecution who calls the attention of a jury to the enormity of any crime, does it under the most anxious caution that, in proportion as the crime is great, so the jury ought to extend their utmost care and attention to see that it is fairly and satisfactorily made out.

Gentlemen, you are aware that in cases of this kind the transactions must necessarily extend over some considerable time. The distance of the place to which the transactions ultimately relate, the difficulty of obtaining from Africa the various documents necessary to be produced to ascertain the guilt or innocence of the party, necessarily occasions the lapse of some considerable time; and in the present case it will be necessary for me to refer to transactions that extend over several years. In this particular case a trial took place in respect of the vessel in Africa, and afterwards in England, which necessarily occupied some considerable time; and no doubt the necessity of obtaining the requisite documents occasioned the delay for a still further lengthened period.

Gentlemen, the charge made against the prisoner is, that he employed a vessel in order to accomplish, that is for the purpose of accomplishing, the dealing in slaves, and that he sent goods for the purpose of accomplishing that object, namely, the trading in slaves; and the nature of the charge, which I will mention generally before I enter into the particulars of the evidence, is this, that the prisoner at the bar employed a vessel--and you will of course hear the manner and mode in which that was done, and observations will occur to you on the detail of the facts--that he sent goods in that vessel to supply persons who are merchants in slaves, individuals holding slaves in Africa, to enable them to keep the slaves while they were there, and to provide the means for bartering those slaves, so as to enable them to transmit them to Cuba, or the Havannah, as the case may be. Of course it need not be said for one moment that openly and publicly in this kingdom no man could do that, which to the eyes of all would appear to be dealing in slaves; it would be the object of attention of every man: and it is necessary I should detail the evidence I have, in order to show first, that this vessel named the Augusta, and the goods which were shipped on board that vessel were in fact for the purpose of supplying a factory situated at the Gallinas, a port on the Coast of Africa, and that the prisoner at the bar knowingly and willingly was the person who had employed the vessel, knowing that it was employed for that purpose. Of course the persons who were employed, the persons more deeply interested, were persons residing abroad; but we charge (and before you convict the prisoner you must be satisfied of that fact) that he knew the object, and lent himself to that object, and shipped the goods with that view.