Chapter XXI: Part 21

I did not ask you what you did not see; it is the very thing I have been objecting to a hundred times over: I ask you what you did see. You have said two or three times that you were three years upon this coast; to what extent of coast did your cruizing extend?--From December, 1838, until April or May, 1841. The Gallinas was within my station in the first instance. I had charge of the station under Admiral Palmer. Then there was another officer appointed.

I do not wish to go into the whole history of your service; but have the goodness to confine yourself to the question: over what extent of coast did the whole performance of your duties extend?--It depended upon the nature of the orders I received.

Was it altogether 1,000 miles of coast or 500 miles, from 1837, when you began, till 1841? Was the whole extent of coast, over which at various periods your service extended, 1,000 miles?--From October, 1837, till December, 1838, I was on the coast at different periods from Sierra Leone as far as Madagascar: but from December, 1838, until I left the coast of Africa in June, 1841, I was confined to the coast between Cape Palmas, Portendique, and the Cape de Verd Islands: from December, 1838, till June, 1841--

What extent of coast is that?--

Mr. Justice _Maule_. How many degrees of latitude is it?

--It is about 1,000 miles I should say.

Mr. _Kelly_. During that period you acquired some experience, I presume, in the nature of the British commerce carried on upon the coast of Africa: let me ask you, whether the sort of articles of British commerce, exported to Africa during that period, were not gunpowder, muskets, tobacco, brandy, and cotton goods?--Oh, yes.

And iron articles?--I do not think it is possible to distinguish the articles intended for the slave trade, from the articles intended for legal commerce.

Mr. Justice _Maule_. The articles sent in both instances are welcome to the African consumers?--Yes; I am speaking of the West Coast of Africa; I cannot speak to other parts of the coast; I do not think it is possible to distinguish them.

What people want in Africa is determined by that which they receive, and whether they pay for it in coin or in produce only, the same thing would be welcome?--Yes.

Mr. Justice _Maule_. Just as if you were to ask, why do people give bank notes in England for guineas or sovereigns: it is just what they want.

Mr. _Kelly_. With regard to these articles you have mentioned, when exported to various parts of Africa, is the return made sometimes in doubloons or money, and sometimes in ivory, dye-wood, palm oil, and other commodities produced there?--If you will let me answer the question in my own way, I can do it more satisfactorily. Where goods are landed, and doubloons are obtained in exchange, the doubloons come from the Spaniards, and I never knew a Spaniard engaged in any trade upon the coast of Africa but the slave trade: when you get produce in exchange, it is more likely you get that from the natives.

Do you mean to say, that the Spaniards who trade upon the coast of Africa do not give produce for the merchandise that goes there; I am not speaking merely of the Gallinas?--I think I know of but one, and I do not know whether he is a Spaniard or not. I can mention his name, it is Carrote; I think he exported palm oil as well as slaves; but he told me he was an agent to Pedro Blanco.

Do not tell us what he told you: what I ask you is, whether a return is not sometimes made in ivory and palm oil, and dye-woods?--The question calls for an answer which I cannot give in a satisfactory manner.

You do not do justice to your own understanding.--I wish to give you every information.

You never saw any of the house of Zulueta & Co. in the course of your travels on the coast of Africa?--Never to the best of my recollection.

Do you know any of them?--No: I saw Mr. Zulueta before the Committee of the Privy Council for the first time.

Re-examined by Mr. Serjeant _Talfourd_.

You have been asked if you saw any slave fittings when you seized the Augusta; did you take up any of the cargo?--No, I did not; I went into the hold.

Do you know whether the slave fittings were what could be taken to pieces and stowed away?--The hatches were grated when I first seized her. When I seized her the second time she had new hatches and no gratings at all. I saw nothing to induce me to believe she had slave fittings when I seized her as the Augusta, though I had heard that.

Mr. Justice _Maule_. The learned Serjeant is asking you not what you heard, but what you looked for; you searched to see if there were slave fittings?--Yes; so far as going down into the hold. I did not disturb the cargo; I do not know what was in her.

You did not find any leagers?--No.

Are you able to say whether she was or was not fitted for the slave trade?--If she was equipped for it I should have seized her at once; but she was not.

You saw enough of her to see that she was not equipped for the slave trade?--Certainly; she had not slave equipments, leagers, hatches with open gratings, or irons, or coppers, or any of those things.

Mr. Serjeant _Talfourd_. How long were you on board the vessel?--The first day a couple of hours, and the next day about the same time. I was on board her three or four times.

Can they get the equipments after they come into port when they discharge their cargo?--Yes, in many places they can; I can give you an instance of an American vessel--

Can the fittings be obtained there after the discharge of a vessel like the Augusta?--

Mr. _Kelly_. Where?

Mr. Serjeant _Talfourd_. At the place where the cargo is discharged.--The only way in which I can answer that question is this; if an agent at Gallinas expects a slave vessel to come out without equipments, he may take care to procure them from other vessels, and may have them perfectly ready: I can give an instance of that--

Mr. _Kelly_. Never mind that.

Mr. Serjeant _Talfourd_. How long would it take to put on board slave equipments in a vessel of the size of the Augusta?--A very short time: they may send out the water-casks filled with water in two or three canoes; and if they do not choose to lay down a slave deck, they put mats upon the casks, and it is done in a very short time. They may embark 500 slaves in a couple of hours or upwards and be off.

_Foreman of the Jury._ One of my brother jurors wishes to ask this question of the witness through your Lordship: when he went on board the Augusta, whether he found any thing on board her to warrant her being supposed to be fitted out as a slave vessel?

Mr. Justice _Maule_. He says he did not; that has been pursued for some time; and now in answer to questions put to him, the gentleman was saying, though she was not fitted out in that way, that her goods might be landed, and slaves might be put on board, in a few hours.--I can say--

Mr. _Kelly_. I object to these speeches: I object to this gentleman, who thinks because he has seized this vessel that if any thing falls from the Jury, or from one of her Majesty’s judges, that he may begin making a speech. There has been a great deal said that is not evidence: that every body must feel; but it is impossible to stop him, although a gentleman as respectable as himself is under trial.

Mr. Serjeant _Talfourd_. You have been asked about the share which the captain has in the capture of a vessel of this description; do you accurately know what share you would have under the circumstances?--Yes; what I have stated is the share: half the proceeds go to the Crown, and after the admiral has had his share, the remaining half is divided.

What would be your share of this vessel the Augusta?--I believe the proceeds amounted to about 3,800_l._; one-half goes to the Crown, and there are the expenses of the appeal to the Judicial Committee of the Privy Council, which are not paid.

Have you got any thing?--No, not a sixpence.

Do the expenses swallow up?--

Mr. Justice _Maule_. 1,900_l._ is the half; the captain gets one-eighth of fifteen-sixteenths?--There are several hundred pounds to come out of it for the Privy Council appeal, that has not been paid yet.--

Mr. _Clarkson_. You must not say any thing, unless you are asked a question.

Mr. _Kelly_. I shall let him talk on till he is tired after what I have said.

Mr. _John Brown_ sworn. Examined by Mr. _Payne_.

Do you come from the Admiralty Court?--Yes.

Do you produce any documents?--Yes, I do.

Mr. Serjeant _Talfourd_. The first document we want is the letter of the 20th August, 1840, from Zulueta & Co. to Captain Jennings?--Will you allow me to hand you a schedule of the different documents; they are numbered according to that. (_The Witness handed in the same._)

Mr. _Payne_. Nos. 14 and 17 are what we want. (_The Witness handed in two papers; one being a letter, dated 20th August, 1840._)

Mr. Serjeant _Talfourd_ (_to_ Captain _Hill_.) Look at this letter and see if it is one of the letters you found on board the Augusta? (_handing the same to the Witness_.)--Yes, that is one; there is my handwriting upon it.

(_To_ Captain _Hill_.) Look at this also (_handing another paper to him_), the signature appears to be cut off, and say if it is in the same state as when you found it?--Yes, it is in the same state as when I found it on board the Augusta; the signature was then cut out.

Mr. Serjeant _Talfourd_ (_to_ Mr. _Brown_.) Now produce the charter-party, Nos. 11 and 12. (_The Witness produced the same._)

(_To_ Captain _Hill_.) Just look at these two papers (_handing them to the Witness_), and see if they are two of the papers which were found on board?--Yes, they are.

Mr. _Kelly_ (_to_ Captain _Hill_.) You have looked at these three or four papers, and you say they are the papers you found on board the vessel?--They are papers given to me by the master: I did not find them by searching.

Were they given to you on board the vessel?--Yes, by the master.

Did you put any mark upon them?--Yes, you will see a mark on the back; that is what I looked at in the first instance when they were handed to me.

Is this it? (_pointing to a mark on the paper_.)--It is a pretty large number upon the paper: that is my handwriting.

Mr. _Abrao De Pinna_ sworn. Examined by Mr. _Payne_.

Will you look at this letter, and tell me if you know the handwriting of the postscript at the end? (_handing a paper to the Witness_.)

Mr. _Kelly_. What is the date of it?--24th of September, 1840.

Mr. _Payne_. Whose handwriting is that postscript?--I presume it to be Mr. Zulueta’s.

Do you believe it to be?--Yes.

Mr. _Kelly_. Which of them?--The father.

Mr. _Payne_. Do you believe it to be his writing?--Yes.

Mr. Justice _Maule_. You say the father; is that the prisoner?

Mr. Serjeant _Bompas_. No, the father of the prisoner.

Mr. _Payne_. Look at that (_handing another paper to the Witness_), and tell me if you know the handwriting; that is, the 20th of August?--It looks like the handwriting of Zulueta the son.

Mr. Justice _Maule_. What is the date?

Mr. _Payne_. The 20th of August, 1840. Just look at this memorandum on the charter-party; look at the signature to that charter-party: do you know the handwriting of that document?--I suppose that one to be the signature of Mr. Zulueta the son.

Do you believe it to be so?--Yes; the other I do not know.

(_The Letters and the Charter-party were handed in._)

Mr. _Payne_. Do you know the handwriting of the body of that first letter of which I showed you the postscript?--I did not pay sufficient attention to it. With your leave I will look again. (_It was again handed to the Witness._) I do not know it.

Cross-examined by Mr. _Kelly_.

I believe you are the notary to the Spanish consul in this city?--I am.

Have you known the house of Zulueta for any length of time?--For some years.

During that time has the prisoner Pedro de Zulueta, like the rest of his firm, maintained a high character for integrity and propriety of conduct?--The highest, the very highest character; and unimpeachable to the best of my knowledge.

To the best of your knowledge, from their character and the character of their dealings, do you believe them to be wilfully capable of violating the law?--

Mr. Serjeant _Bompas_. No, I object to that question.

Mr. _Kelly_. Has their character been that of violators of the law, or the reverse?--As far as my knowledge goes, I should say that it was perfectly impossible that the house of Zulueta & Co. should be violators of the law.

Have you ever had any transactions in business with that house?--Yes.

Do you know that they act as agents for various houses in Spain, the Havannah, and other places?--Yes.

Do you know that they have for a great many years carried on business to a great extent indeed?--Yes, I do.

Perhaps you may happen to know that vessels under the Spanish flag cannot be commanded by English captains?--

Mr. _Payne_. Do you know any thing about it?

Mr. _Kelly_. Do you know that?--My impression is, that that is the case.

How long have you been a notary?--I have been admitted about twenty years.

Are you a native of Spain?--A native of this country.

Where did you acquire your knowledge of the Spanish language?--In this country.

Have you had a good deal to do with the commercial and maritime affairs of Spain?--Yes, very largely; my connexion is almost exclusively Spanish.

In your experience, have you ever known a Spanish vessel, or a vessel under the Spanish flag, commanded by an English captain?--Never.

Re-examined by Mr. Serjeant _Bompas_.

Who are the partners in the firm of Zulueta, do you know?--The father Don Pedro Antonio Zulueta, and the son Don Pedro Gonzalez Zulueta. I do not know that I can go any further; I do not know that there is another partner.

Mr. _Kelly_. There is another son Moriarte?--I do not know that he is a partner; I believe he is.

Mr. Serjeant _Bompas_. Besides being a notary, do you carry on the business of a merchant at all?--No, not in the least.

How do you become possessed with your knowledge?--In my notarial capacity I have often had to prepare bills of sale of ships, and various documents connected with shipping, and that is the only way I obtain my information.

Mr. Serjeant _Bompas_. We will read these documents; the one signed by the prisoner at the bar first of all.

Mr. _Kelly_. Take them one at a time; they stand under very different circumstances. Let me look at it. (_It was handed to Mr. Kelly._)

The same was then read, dated London, the 20th of August, 1840, signed
“Zulueta &. Co.,” and directed “Captain Jennings,” Portsmouth.

“Sir,--In reply to your favour of yesterday, we have to say that we
cannot exceed 500_l._ for the vessel in question, such as described in
your letter, namely, that excepting the sails, the other differences
are trifling from the inventory. If you cannot therefore succeed at
those limits, we must give up the purchase, and you will please act
accordingly.”

Mr. Serjeant _Bompas_. We propose now to read the one in which there is a postscript from the father.

Mr. _Kelly_. I feel that this letter is no evidence against the prisoner at the bar. It is a letter written in a handwriting not proved; the signature does not appear at all; but the postscript was in the handwriting of the prisoner’s father. I need hardly say that that is no evidence against the prisoner; but I have not the slightest objection to their reading it. I only add these few words, that because I consent to this being read, it is not to be taken that other documents, if there are any others under different circumstances, are admitted.

_The following Letter was read_:--

[“London, 26th September, 1840,” the signature cut off, addressed
Captain Thomas Jennings, Portsmouth.

“Dear Sir,--We have received your letter of yesterday, whereby observe
that the sum we have remitted you will not be sufficient to cover all
the expenses to clear the ship. We much regret you have omitted
mentioning the sum you require, which prevents our remitting you the
same by this very post, thus causing a new delay in leaving that port,
so contrary to our wishes; you will therefore write to us to-morrow,
that we may receive your reply on Monday morning, informing us of the
amount necessary to finish paying all your accounts and expenses, to
remit you the same by Monday’s night post, in order that you maybe
able to sail for Liverpool on Tuesday or Wednesday at the furthest.
You must not omit stating the amount required; and waiting your reply,
we remain, very truly, dear Sir, your obedient servants.”

Postscript. “According our Liverpool house notice, you will go there
to the Salt-house Dock.”

Mr. Serjeant _Bompas_. Now put in the charter-party, and the paper referred to in it.

Mr. _Kelly_. Put in one at a time; you cannot read two documents at a time.

[The same was handed in, dated London, 19th October, 1840, signed
Thomas Jennings; for Pedro Martinez & Co., of Havannah, Zulueta &
Company.

Mr. _Kelly_. All these documents appear in the printed Appendix, which it would be convenient to hand up to your Lordship.

Mr. Justice _Maule_. Is that the joint Appendix on the appeal to the Privy Council?

Mr. _Kelly_. Yes.

Mr. _Clarkson_. The number of the document is 11, on page 5.

_The same was read as follows_:--

“It is this day mutually agreed between Mr. Thomas Jennings, master
and owner of the good ship or vessel called the Augusta, of the
burthen of tons, or thereabouts, now lying at the port of
Liverpool, and Messrs. Pedro Martinez & Co., of Havannah, merchants:
that the said ship being tight, staunch, and strong, and every way
fitted for the voyage, shall with all convenient speed load from the
factors of the said Messrs. Pedro Martinez & Co. a cargo of legal
goods, which the said merchants bind themselves to ship, not exceeding
what she can reasonably stow and carry over and above her tackle,
apparel, provisions, and furniture; and being so loaded, shall
therewith proceed to Gallinas, on the coast of Africa, or so near
thereunto as she may safely get and deliver the same; after which she
may be sent on any legal voyages between the West Indies, England,
Africa, or the United States, according to the directions of the
charterers’ agents (restraint of princes and rulers, the act of God,
the Queen’s enemies, fire, and all and every other dangers and
accidents of the seas, rivers, and navigation, of whatever nature and
kind soever during the said voyage, always excepted.) The freight to
be paid on unloading and right delivery of the cargo, at the rate of
100_l._ sterling per calendar month that the ship may be so employed,
commencing with this present month; all port charges and pilotages
being paid by the charterers; and days on demurrage, over and
above the said laying days, at pounds per day. Penalty for
non-performance of this agreement 500_l._ The necessary cash for
ship’s disbursements to be furnished to the captain free of
commission: the charterers to be at liberty of closing this engagement
at the end of any voyage performed under it, on settling the freight
due to the vessel; the captain being indebted to the charterers in
certain sums, as per acknowledgment elsewhere, the freights earned by
the vessel to be held as general lien for such sums, and in any
settlement for such freights, the said advances to be deducted from
the vessel’s earnings.”

Mr. Serjeant _Bompas_. The next document is the acknowledgment--

Mr. _Kelly_. I do not understand how this addition to the charter-party is evidence.

Mr. Justice _Maule_. It is at the top of page 6?

Mr. _Kelly_. It is a memorandum: you propose to read this?

Mr. Serjeant _Bompas_. Yes.

Mr. _Kelly_. I do not see the importance of it; but I do not see how it is evidence.

Mr. Justice _Maule_. Do you object to it?

Mr. _Kelly_. Yes, my Lord. I will not say any thing of the purpose for which it is offered in evidence, or the object of it. The charter-party is signed by the prisoner at the bar himself, on behalf of the house, as agents for the house of Martinez; but with regard to this document, which my learned friend calls a “memorandum of charter-party,” it is the sheet of paper in my hand, signed “Thomas Jennings,” and signed by nobody else: it is not shown to be in the handwriting of the prisoner, nor ever to have been in his hands, nor that he had any thing to do with it: it is a paper signed by Captain Jennings, and found by Captain Hill on board the vessel, or delivered to him by Captain Jennings on board the vessel. What evidence is that against the prisoner at the bar? I do not know what the paper is worth; but I do not know how your Lordships can admit it. It may be a document treasonable in its nature, or it may have been written the day before it was delivered to Captain Hill.

Mr. Justice _Maule_. There is some doubt about this: our opinion is, that in the present stage of the case this document is not admissible. There is certainly a reference in the charter-party to the captain being indebted to the charterers in a certain sum, acknowledged elsewhere, the freights being held as a lien against those debts. This charter-party is dated London, 19th of October; the paper proposed to be put in evidence is dated the 21st of October, so that it may not have been in existence at the time when the first paper was signed; it is therefore hardly to be referred to as a document mentioned in the charter-party. Whether something may arise to make the custody of Mr. Jennings evidence against Mr. Zulueta, is a question not now necessary to be decided: but the question is, whether in the present stage of the cause this is admissible. There is a reference certainly to an acknowledgment elsewhere. The proper and natural custody of that acknowledgment would be either the house of Zulueta & Co., or Pedro Martinez & Co.; it is an acknowledgment of a debt to them, and it is found in the custody of the debtor; it is proved by the signature of Zulueta & Co., and they or their principals are the parties who would have the custody of it; they may produce it if they wish to repel any inference which may arise from it, but at present we think it not admissible in evidence.

Mr. Serjeant _Bompas_. We call for that paper mentioned at the end of the memorandum; we have given you notice to produce it.

Mr. _Kelly_. If you mean to call for any paper, just put in your notice, so that we may see what document it is.

_William George White_ sworn. Examined by Mr. Serjeant _Bompas_.

Just take that in your hand. (_Handing a paper to the Witness._) Are you a clerk to Sir George Stephen?--I was employed by him.

Did you serve a copy of that notice upon any body, and upon whom?--Yes, I did serve a copy of it.

Upon whom?--Upon Messrs. Zulueta and Messrs. Lawford & Co., and Mr. Jennings, or left it at the office: I either served it on the parties, or left it at the office.

Cross-examined by Mr. _Kelly_.

There was a question put to you, which my learned friend did not give you time to answer; are you a clerk to Sir George Stephen?--No.

How came you to be employed in this matter?--I happened to be in his office, and he asked me to serve it.

What are you?--A clerk in a wine-merchant’s counting-house.

When did you serve this?--Will you allow me to look at it again? By all means. (_It was again handed to the Witness._)--I served one copy on the 20th on Messrs. Zulueta & Co.

The 20th of this month?--Yes, and the 21st on Messrs. Lawford & Co., and on the 23rd upon Thomas Jennings: it was not signed or dated.

You have not answered the question; I wanted to know when you served that paper, of which that is a copy, either upon Mr. Zulueta, or Messrs. Lawfords, his solicitors?--On the 20th of October on Messrs. Zulueta & Co.: the copy was without any date or signature.

Who gave you it to serve?--I had it from Sir George Stephen.

Did he tell you why it was without any signature at all?--No.

He desired you to go and serve it?--Yes.

Now I perceive that that one has a signature; when did you serve upon either Messrs. Zulueta & Co., or Messrs. Lawford & Co., a notice with a signature?--Upon the 26th of October I served all three with a copy.

That was yesterday; what time was it?--I think that Mr. Jennings was about--

I am not asking you about Mr. Jennings; but upon my client, Pedro de Zulueta, or Messrs. Lawford, what time did you serve it upon them?--About five o’clock I served it.

Upon whom?--Not upon Mr. Zulueta himself.

Upon the solicitors?--No; not upon the solicitors themselves.

I am speaking of the one with a date and a signature; when did you serve either Mr. Zulueta or his solicitors?--The 26th.

Was that yesterday? Does your recollection enable you to say?--

Mr. Justice _Maule_. It was either yesterday, or yesterday twelve months, or two years ago?--It was the 26th of October, 1843.

Mr. _Kelly_. Will you tell me at what hour you served it?--Upon whom?

Upon either Messrs. Lawford & Co. or Messrs. Zulueta. First, did you serve it upon either? Leave out Captain Jennings. Did you serve a copy of that paper, signed and dated, upon either Mr. Zulueta or Messrs. Lawford?--No; I did not.

You only served it upon Captain Jennings?--Yes; that is all.

Mr. Justice _Maule_. As far as the signed paper goes, there was no service upon Mr. Zulueta?

Mr. _Kelly_. No.

Mr. Justice _Maule_. He did serve something upon them which was not signed.

Mr. _Clarkson_. Nor dated.

Mr. Justice _Maule_. Let us look at it; it may be a very good notice, though not signed. (_It was handed to his Lordship_).

Mr. _Kelly_. I am not going to raise any objection to it; but I shall make some observations upon it.

Mr. Serjeant _Bompas_. The name was in the instrument, though it was not signed by Sir George Stephen?--Yes.

Mr. _Kelly_. Was that so?--Yes.

When did you serve a copy besides that?--I served a second copy of it at the general office of Zulueta & Co., and you will find the words “General Office,” written upon it.

Mr. _Kelly_. Now just refer to your notice, to produce any document you propose to call for?

Mr. Serjeant _Bompas_. When you say you left it without date and signature, was it served in this way, the blank day of blank, with Sir George Stephen’s name upon the back of it?--Yes.

Mr. Justice _Maule_. The non-signature of a notice to produce is not worth inquiry; a dot to an _i_, or a cross to a _t_, would be equally available.

Mr. _Kelly_. It is my learned friend who renews the subject. I ask him to point out the document.

(_The Notice to produce was read, specifying among other documents,
the additional memorandum of Charter-party, &c._)

Mr. _Kelly_. I have no such document. I do not know of its existence.

Mr. Justice _Maule_. You call for the document referred to at the end of the memorandum of charter-party?

Mr. Serjeant _Bompas_. Yes.

Mr. _Kelly_. No, my Lord, they call for it by a particular description; it may be that document; but according to that description, as far as I know or am instructed, we have not got it. The document referred to in the terms of the charter-party is supposed to be an acknowledgment of the debt from Captain Jennings to Martinez and Co.; that might be in the possession of Messrs. Zulueta--

Mr. Justice _Maule_. It would be in the possession of Zulueta & Co., or Martinez & Co.?

Mr. _Kelly_. Yes, my Lord; if in the possession of Martinez, of course I have not got it.

Mr. Justice _Maule_. You call for the additional memorandum of charter-party of the 21st of October 1840?

Mr. Serjeant _Bompas_. Yes, or the 19th of October.

Mr. _William Thomas_ sworn. Examined by Mr. Serjeant _Bompas_.

Are you a clerk in the bank of Messrs. Glyn, Mills, & Co.?--Yes.

Are they the bankers of the prisoner Mr. Zulueta?--Yes, they are.

Did you pay any sum of money of 650_l._ for him upon his account, in August 1840? (_The Witness referred to a book_).--On the 29th of August.

Was there a cheque?--A cheque or bill; I cannot say which.

Mr. _Kelly_. I presume that is kept by yourself, and in your handwriting?--Yes.

Mr. Serjeant _Bompas_. You return the cheques?--Yes, we do.

Mr. Serjeant _Bompas_. We have given them notice to produce any cheque of that date.

Mr. _Kelly_. Now, what is it you call for?

Mr. Serjeant _Bompas_. For that cheque for 650_l._

Mr. _Kelly_. Does it purport to be a cheque signed by the defendant?--I cannot tell that, it might be a bill made payable upon our house on their account.

Mr. _Kelly_. I am quite prepared to produce any document in the handwriting of the prisoner at the bar, which is in his possession; but as to any document that may bear the signature, or be in the handwriting of any other member of the firm, that I shall not produce unless that member of the firm is made a witness to show the circumstances accompanying the document; unless it passed through the hands of the prisoner. If you prove any cheque in the handwriting of the prisoner, I will produce it if I have it, and if not, I shall not object to secondary evidence of it.

Mr. Serjeant _Bompas_. You say that that is in your writing, have you any book by which you can ascertain whether it was paid through a cheque or bill?--No, certainly not.

None whatever?--No; I could not tell whether it was a cheque or a bill. I cannot tell which; there is no book in our house that will tell us that.

On whose account was it paid?--

Mr. _Kelly_. I object to that: I do not want all the payments made by this witness; we are upon the question if you can give secondary evidence of the cheque.

Mr. Serjeant _Bompas_. I am going to see on whose account it was paid.

Mr. _Kelly_. I object to any evidence of bankers paying a sum of money on account of the firm, or on account of any other person, unless the document is in the handwriting of the prisoner at the bar, or the payment proved to have been made to his orders. What is to prevent, by the order of the partner in Spain, of which he never heard, this person being charged with felony?

Mr. Serjeant _Bompas_. I submit that the evidence is sufficient; here is an express statement in the printed evidence.

Mr. Justice _Maule_. It is not in evidence yet.

Mr. _Kelly_. I consider it in evidence; my learned friend may refer to any part of that book; I consider that that is in evidence now.

Mr. Justice _Maule_. Very well.

Mr. Serjeant _Bompas_. He first states he managed all the business. In answer to Question 10432 he was speaking about the transactions with Africa, he was examined about the Augusta, and Mr. Kidd, he says, “My father knew there was such a man upon the coast, but I did not know even that, though I have managed all this business.”

Mr. _Kelly_. That relates to a business upon which another insinuation was made, and which has no more to do with it than this.

Mr. Serjeant _Bompas_. My learned friend assumes that this has no relation to it; he is quite mistaken in that. The question is, what is the meaning of the term, “this business,” it is not the business of the man of the name of Kidd; he says he never heard of him; but the question is, whether it is not the business of the Augusta and the trade with Africa; he says he manages all that business. I submit, if he takes upon himself to say he managed “all this business”--

Mr. Justice _Maule_. What are the words?

Mr. Serjeant _Bompas_. “All this business.”

Mr. Justice _Maule_. I think the fair inference is, that the Mr. Zulueta, who came before the Committee, was the person who knew best about the matter suggested against them relating to the Augusta, and he came to speak to the matter of the Augusta, either solely or among other things; if so, “this business” must mean that.

Mr. _Kelly_. No, not if your Lordship looks at the context; he comes forward voluntarily, understanding there were charges against his house, not because he knew more about it than any body else, for he knew the least about it, but because he spoke English best. There is nothing from which you can infer in this evidence that Pedro Zulueta knew all that had passed through the house.

Mr. Justice _Maule_. It is not very satisfactory to select a man who can speak English, but did not know much about the matter.

Mr. _Kelly_. I mention that in answer to your Lordship’s observation, “that he knew most about the matter.”

Mr. Justice _Maule_. The Committee must have taken that to be the fact.

Mr. _Kelly_. If your Lordship thinks it must fairly be supposed to refer to that matter, then the question is whether that makes it evidence; I will call your Lordship’s attention to what he says: The _Chairman_ asks him, “Is there any other part of the evidence which has been given that you wish to observe upon?--It is asked here in question 5086, ‘Who was he?’ The answer is, ‘The name is mentioned in the Parliamentary Papers as being connected with the purchase of a slave vessel, Mr. Kidd; and it is mentioned in connexion with that of Mr. Zulueta, of London.’” There was some former transaction of the purchase of a slave vessel, in which Mr. Kidd was a party. He goes on to say, “Now, as to Mr. Kidd, the very first thing I ever knew or ever heard of his name, was to see it here. I never heard of his name at all. I never had a letter from him or through him, or knew any thing of the man whatever. That is with regard to myself. 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 upon the coast, but I did not know even that, though I have managed all this business.” What business can that relate to, but the business in which Mr. Kidd’s name was mentioned, which was the purchase of a slave vessel?

Mr. Justice _Maule_. I should think not: his father knew there was such a man upon the coast; “I did not know that, although I had that management of the business” which would lead me to know all the men on the coast, that is to say, all the coast business; that is the way I understand it, I confess.

Mr. _Kelly_. I cannot conceive that it is so; but it is for your Lordships to decide. Supposing that it is, I do not know how that makes this entry in the book evidence. Your Lordships will look at the next question: He is asked, “You have no connexion with Mr. Kidd in any way?--No; nor any knowledge of him.” Then he goes on with the same business; he was never alluding to the principal business, that of the Augusta.

Mr. Serjeant _Talfourd_. You will find he gives there an account of the whole transaction. Mr. _Forster_ says, “You advanced the money to Captain Jennings for the purchase of a vessel; Jennings transferring the vessel to you as a security for the amount so advanced?--That is just the description of operation, which is a very general one in business.”

Mr. Serjeant _Bompas_ (_to_ Mr. _Thomas_.) Whose handwriting is that?--The handwriting of a Mr. Daniel, in our office.

Mr. _Kelly_. I submit that this relates to the business of Mr. Kidd.

Mr. Justice _Maule_. It struck me otherwise; but at the same time you seem so extremely satisfied with your own view, and my view is just as it struck me, that you stagger me by your positiveness.

Mr. _Kelly_. I should not like your Lordship or the Jury to be misled as to the amount of interference by this gentleman in the business. Suppose it is so, that he had the management of the fitting out of the Augusta, how does that make evidence of an entry in the banker’s book of the payment of a sum of money? He cannot say to whom he paid it, or on whose account? How can that make it evidence upon a charge of felony? I do not know the nature of it, but I am quite sure it is quite consistent with Pedro Zulueta, having done all he has admitted to have done before the Committee, that he never heard of that payment.

Mr. Justice _Maule_. In whose handwriting is the signature to the charter-party?

Mr. _Kelly_. It is the signature of the prisoner that has been read.

Mr. Justice _Maule_. I do not think you are in a situation to put in this evidence. This witness paid across the counter to somebody, upon something which they produced, a sum of money, and the thing then produced you call for.

Mr. Serjeant _Bompas_. We call for the document upon which it was paid, and we are going to take another step to show that the money so paid was applied to this vessel. Your Lordship has got the statement that they advanced the money for the purchase of the vessel.

Mr. _Kelly_. There is no doubt that the house of Zulueta & Co., on account of Martinez & Co., paid for this ship. My learned friend says he calls for that document. He calls for a document he has not shown to be in existence. Let him prove the existence of the cheque; and then the question arises, whether secondary evidence is admissible.

Mr. Serjeant _Bompas_. Can you say whether it was paid through a cheque or draft?--No, it is impossible.

Mr. Justice _Maule_. He says it was paid through an acceptance upon their house, or upon a cheque upon their house; that it was something purporting to come from Zulueta & Co., but that does not bind the prisoner; that cheque so purporting to come from Zulueta & Co. was sent back to Zulueta &, Co., and notice was given for the production of it?

Mr. _Kelly_. Yes, my Lord, notice has been given to produce the cheque or draft; that does not mean a bill of exchange accepted at Cadiz, where they had a house, or at Liverpool, where they have another house.

Mr. Serjeant _Bompas_. Cheque or draft would apply to a bill.

Mr. Justice _Maule_. If it refers sufficiently to the contents of it.

Mr. _Kelly_. Read the words of the notice, and we will see.

Mr. Serjeant _Talfourd_. “And also a certain draft or cheque,” &c. (_Reading the terms of the notice._)

Mr. _Kelly_. I make two objections to this evidence; the first is, that no such cheque is proved to be in existence; and secondly, if there were, such cheque is not proved to have been in the handwriting of the prisoner at the bar, and therefore it is not admissible. I ought to add, as the notice to produce has been referred to, and is now upon the table, that the notice calls upon the prisoner, Mr. Zulueta, to produce all the books, documents, and accounts of his house, between certain dates, at all relating to the transaction in question; and all letters written, and copies of letters written by this house, or any body for them in relation to this matter. My Lord, every document there mentioned is here in Court, and in two minutes ready to be put upon the table.

Mr. Serjeant _Bompas_. To try you, I call for the paper referred to in the charter-party.

Mr. _Kelly_. The greater part are in Spanish, and the prisoner at the bar can distinguish them, but the clerks who kept these books, the corresponding clerk, and the clerk in whose handwriting they are, are ready to speak to any thing my learned friend may call for from the beginning to the end.

Mr. Serjeant _Bompas_. I call for that letter referred to in the charter-party.

Mr. _Kelly_. Put the documents upon the table.

Mr. Serjeant _Bompas_. You need not go through that performance. Will you produce the receipt mentioned in the charter-party?

Mr. _Kelly_. I have said I have it not.

Mr. Serjeant _Bompas_. There is a letter mentioned here: “We have received your letter of yesterday.” Will you produce that? Captain Jenning’s letter of the 25th of September, 1840?

Mr. _Kelly_. Certainly.

Mr. Serjeant _Talford_. Mr. Jenning’s letter is in English.

Mr. _Kelly_. Yes; I know that.

_The same was produced and read, as follows_:--

“Portsmouth, 25th September, 1840, Messrs. Zulueta & Co.:-- Gentlemen,
I am in the receipt of your favour of the 24th instant, and beg leave
to acknowledge the favour you have conferred on the house of Messrs.
Grant, Gillan, and Medley, and have acknowledged the same to the
parties mentioned; at the same time beg leave to mention this port is
different from many ports in England for men, and we have to give the
month’s advance under favour in consequence of the many vessels of war
wanting men, so that I have agreed with the men as I consider you will
deem necessary; and from the heavy charges of the different tradesmen,
and all other expenses I formerly mentioned, I do not consider the sum
you have remitted sufficient to clear this port: under such
circumstances, you will please to favour me with your advice by return
of post, who I shall draw upon for the remaining balance, and hoping
my accounts, when seen, may meet your approbation, I remain, your
obedient humble servant,

THOMAS JENNINGS.”

Mr. Serjeant _Bompas_. This is in answer to that.

Mr. Justice _Maule_. The letter of the 26th of September is the answer:--

“We have received your letter of yesterday, whereby observe that the
sum we have remitted you will not be sufficient to cover all the
expenses to clear the ship. We much regret you have omitted mentioning
the sum you require, which prevents our remitting you the same by this
very post, thus causing a new delay in leaving that port, so contrary
to our wishes. You will therefore write to us to-morrow, that we may
receive your reply on Monday morning, informing us of the amount
necessary to finish paying all your accounts and expenses, to remit
you the same by Monday’s night post, in order that you may be able to
sail for Liverpool on Tuesday or Wednesday at the furthest. You must
not omit stating the amount required, and waiting your reply, we
remain, very truly.”

Mr. Serjeant _Bompas_. That is the directing him to go to Liverpool.

(_To_ Mr. _Thomas_.) On the 29th of August; have you a memorandum of the notes you paid on that day?--Yes.

The numbers of the notes?--Yes I have.

Mr. _Kelly_. While we were discussing this point, my learned friend called for something else, which I now produce; I do not know that your Lordships decided it. I had objected to the entry in the banker’s book being given in evidence against Mr. Zulueta, unless it was proved that that entry was in some way or other made known to him.

Mr. Serjeant _Bompas_. I am going to show that certain notes were paid to some person or other, and paid for this vessel; and these letters are evidence to show that he was the owner of the vessel.

Mr. Justice _Wightman_. There is a certain document taken to the bank, and notes paid for it.

Mr. _Kelly_. Then I object upon this ground. This is an indictment against Pedro Zulueta. I have not the least objection, that where documents are in existence, and members of the firm are connected with them, that they should be called to explain them; but I do object to any thing being given in evidence, done under the order of another person, unless it is proved to have come home to the knowledge of the prisoner. There is no proof that that entry ever came home to the prisoner, that he ever saw the notes, or that it was by any order signed by him or known to be his signature that these notes were paid, and therefore I object to its being any evidence against him. One can suppose a case like this. It is entirely unlike a mercantile transaction, where notice to one is notice to all the firm. If an action was brought against any one, a document affecting mercantile matters, the act of one partner is the act of all; and where it is a civil action or liability, the act done by the father would be evidence against the son, his partner, and that, though the son was not in England at the time, but was in Spain, and had no notice of the proceedings. Now let us try that: here is a transaction respecting the payment of bank-notes, and if, because it is supposed to be done by the house of Zulueta, it is evidence against this particular member of the firm, without any proof that it was done by him, it would be equally evidence against a member of the firm who was in Spain during the whole of the time; and it might have pleased Sir George Stephen to have selected him as a subject of prosecution; he might have been indicted for equipping this vessel and the other acts charged in the indictment; and if an act done by one member of the firm is evidence against another, it would be evidence against him. I apprehend that, supposing this payment of money to have any thing to do with this transaction, which I apprehend does not appear, unless it is proved it was done with the defendant’s knowledge or by his order, it is no evidence against him; and no act done by another member of the firm is any evidence against him. There is no proof that he saw these notes, or gave any order; and under these circumstances, upon this criminal charge, I submit it is not evidence against him.

Mr. Serjeant _Bompas_. I am aware of the necessity of the accuracy of the evidence to convict a party on a criminal charge; but I apprehend there is abundant evidence to establish that the notes given were the notes paid for the purchase of the vessel. It is not a case where you have no evidence of Mr. Zulueta having taken a share in the purchase of the vessel; you have evidence of his control over the purchase in his lending the money for the purchase, and that he interfered in the purchase of the vessel. You have also a letter written by him to Captain Jennings in respect of it, and I am going to show that Captain Jennings was present when this sum was paid for the purchase. I am going to trace it to two individuals, Bernardos and Jennings, and I am going to show that these notes were for the purchase of this vessel, and that the prisoner at the bar interferes with the vessel afterwards, as if he was acting as interested in it. I have put in two letters, one from the captain communicating to him as owner, giving an account of the transactions, and asking upon whom he is to draw for the amount required. The letter from Mr. Zulueta states that he will pay all the disbursements; he regrets the captain did not give him the amount, and requests him to go to the Salthouse Dock. In addition to the control over the actual purchase, he states that the money was paid for the purchase, he exercises a control over it, and directs the amount. Then you have the previous letter of Captain Jennings, and you have in these two letters a distinct act of ownership over the vessel, directing where she is to go, and distinctly exercising dominion over her. The question undoubtedly is, whether Captain Jennings was nominally appointed as master, he not being substantially the owner, and whether Mr. Zulueta did not from the beginning to the end transact the business of the vessel. That is for the Jury. I show he exercised control over it, and I show that this money was delivered to a person, and paid in purchase of the vessel. I submit it is quite clear that I am entitled to show that it was paid by these bankers.

Mr. Serjeant _Talfourd_. I submit that there is another ground on which this evidence is admissible. Pedro Zulueta, the prisoner, has undertaken to give an account of the transaction, and the account given in substance in the evidence is this:--That his house was authorised by Martinez & Co. to advance a certain sum out of the funds in their hands for the purchase of this vessel; that that sum was lent in advance to Captain Jennings by Martinez; that Captain Jennings became the purchaser, and was _bonâ fide_ the owner of the vessel; that is not the precise evidence, but the substance. We propose to show that that account is not true; that the price of the vessel was not 500_l._; the extent to which they were authorised to advance, but 650_l._ That that 650_l._ was a sum paid in some sort; that it is debited to the account of Martinez & Co.; that that sum was advanced out of the funds at a time when it was impossible that they could have had any communication with Martinez & Co., at the Havannah, to advance beyond the sum of 500_l._, which was stated to be the sum. Having taken that account, as given in the evidence, we are entitled to show that, in giving this account, the prisoner gave a false account as to a part of the transaction.