Chapter XXII: Part 22

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

(_The Judges conferred together._)

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

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

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

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

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

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

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

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

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

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

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

Did you do that frequently?--Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

Give me the name?--Mr. Hayburn.

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

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

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

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

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

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

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

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

I believe you reside at Portsmouth?--Yes.

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

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

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

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

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

Did you afterwards sell the vessel?--Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cross-examined by Mr. _Kelly_.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Serjeant _Bompas_. Employed it for that purpose.

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

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

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

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

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

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

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

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

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

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

Mr. Serjeant _Bompas_. Yes.

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

Mr. _Brown_. That packet contains nine enclosures.

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

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

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

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

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

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

What is it?--Bellasise Park.

Cross-examined by Mr. _Clarkson_.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(_Their Lordships referred to the printed Letter._)

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

Mr. Justice _Wightman_. He dispatched that ship?

Mr. Serjeant _Bompas_. Yes.

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

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

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

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

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

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

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

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

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.