The learned Judge is still upon the point of the nature of the adventure, as indicated by the nature of the trade said to prevail at Gallinas; and as in the former observations, since the name of Gallinas has been laid down as probably conveying no information to any but slave dealers and the slave police, the prisoner seems to remain untouched. But then it is laid down that an answer, which of course somewhere must exist, could be easily given by the accused. How so? but that the law, this special Act of Parliament, must be so understood as to require the simple shipping-agent in England to prepare himself with a full knowledge of the plans and the objects of the foreign merchant abroad, who orders certain goods to be purchased and shipped for his account. The learned Judge has not lost sight that in the universal practice of law, a conviction is only justifiable by evidence produced—that is, produced against, not by that which the accused party does not produce: but he feels it his duty, under the Act of Parliament he was expounding, to warn the Jury that the case is not so to be treated; for the operation of that Act, when to be applied to a commission-agent in this country, shipping goods to a place about which such evidence is offered as that it is a slave-mart, and a slave-mart only, even although the knowledge of that fact has been previously stated to be most probably confined to dealers in slaves, and the police employed against them, upon whose testimony alone it stood before the Court—in such a case, when dealing with the 5th Geo. IV, the onus probandi lies with the accused. In the course of mercantile transactions, the commission-agent, who buys and ships goods by order and for account of a foreign merchant residing abroad, and to a port with which the former has no intercourse of trade whatever, would not be supposed nor could be expected to possess any further knowledge than that necessary to complete, in England, his own part of the transaction; but not so for the purposes of the Act in question. The reasoning seems to be this: here is a law which makes a certain knowledge guilty, if the object of the party abroad, originating the transaction be in deed and in fact a guilty one. In order to give force and strength to the operation of this law, it must be so laid down as to render necessary some knowledge of either an innocent or of a guilty nature, in the party residing in England, of the plans and objects of the party abroad by whose order and for whose account he has shipped goods to the port indicated to him. This or that knowledge must exist in the agent: he must be called upon to produce even the very foreign merchant himself, over whom the Court can give the accused no control, over whom he himself is not shown to possess any, and whose testimony after all could not be trusted; since that of the accused, as recorded before the Committee, is not. If in this, or in some other way, he does not prove knowledge of an innocent object, the object must be taken to be a guilty one; and as the law must be understood to require a knowledge, and he shows no innocent knowledge, the inference remains of a guilty knowledge: from which it seems evident that shipping agency business cannot be safely undertaken, as has been heretofore done, at least for merchants residing in countries in which slave dealing still exists, not only in Africa, but Cuba, Brazils, the United States, and other places. But merchants in England are required to master the whole object and plan of their correspondents abroad; and that the sincerity of his endeavours will be measured only by the result, is what common prudence will teach a man to expect from the machinery which is set on foot in order to apply to this Act of Parliament that notable remark, that who wills the end wills the means.

And thus, after having laid down that the Act requires a proof of innocence in the party accused, a knowledge of something innocent intended—which, if not given, must leave the inference of guilty knowledge, inasmuch as no knowledge, ignorance of the object, cannot be taken as an answer—the accused, if he cannot produce his correspondent, or if he did not possess himself at the time of making the shipment, of a plain and simple account of his plans, is left to the mercy of such inferences as may be drawn; and upon this view of the requirements of the Act of Parliament he is to be considered as withholding something which cannot be supposed to be favourable to him. This inference will not be counterbalanced—it cannot be when once admitted; it must either be destroyed by the plain and simple account of what the merchant abroad intended, or its edge will be blunted by nothing else. The accused’s character may be “of the very highest,” perfectly unassailable; the position he occupies in the mercantile profession may be very high, the profession itself in this country being reckoned on a level for honour and principle with the highest; and men of unblameable character, of considerable standing and independence, conscientious and upright, moving in society where good taste and right feeling prevail, are not likely to put their property, their character, their consciences, in jeopardy, especially by partaking in transactions to which their habits and feelings, and those of persons around them, stand opposed, and all that for very paltry advantage. It is pointed out by the learned Judge, that although a very grave charge, and of a very highly penal nature, still the slave trade—the dealing in slaves—“is a trade, which till a recent period was lawful for persons in this country, and many persons of very good character certainly did engage in that trade, and a great number of persons justified it. I suppose,” he continues, “those same persons would now say it is not to be engaged in, because it is a prohibited thing—it is a regulation of trade enforced by very severe penalties made by this country—but that the dealing in slaves is in itself a lawful, right, good, and proper thing, which ought not to be prohibited. Those persons would now consider slave trading as a thing prohibited only by positive regulations. There is no one who does not at once perceive that practical distinction between them. There is no person who, in point of feeling and opinion, does not perceive the difference there is between a thing which is prohibited by positive law, and that kind of thing, against which, if there were no law at all against it, the plain natural sense and conscience of mankind would revolt. This trading in slaves, in the opinion of a great many persons, is itself an abomination, a thing which ought to be considered with the greatest horror, whether prohibited or not; but those who think it was right when it was not prohibited, probably do not think it so very bad if it be committed now, since it has been prohibited by law, only that it is to be avoided on account of the penalty to which it subjects the individuals engaged in it. This has some bearing on the question of how far considerations of character would have weight with respect to such an offence.” The opinion entertained by the individual in question against the slave trade may be as strong as the strongest for any thing that appears, who has stated without its having been contradicted, that neither himself nor his family have ever been suspected of having the smallest interest in slave dealing, or in slave property, about which he has stated how his fathers have proceeded: an individual, who may, perhaps, have a very strong opinion as to the moral and religious duty of obedience to positive enactments by competent authority, and who said something to that effect in the evidence before the Committee of the House of Commons, which had been read in Court.

This as to the character of the party. As to the inducement, when it is alleged that the smallness of the agency commission charged shows that the transaction was considered to be one in the ordinary course of shipping business, that consideration is pressed down by the weight of the radical defect in not having given a plain and simple account of what was intended by the foreign merchant. “It is alleged,” says the Judge, “that the profit on this transaction would be extremely small. I do not think that the petty gain of this one transaction is the matter, for it appears that Pedro Martinez & Co. do a great deal of business, and it is possible that whenever persons have a large and valuable business to conduct, there is some small portion that the correspondent and agent would willingly get rid of if he could; but he is not allowed to pick and choose, but he must take the whole.” In short, a London merchant, of the character which has been described, is to be supposed as not at all unlikely to commit a felony, if the alternative be to lose a valuable connexion.

And thus, whilst the most unimpeachable character is not a proof to any extent against the suspicion of a felonious knowledge and intent, and whilst the token of innocence afforded by the charge of the ordinary rates allowed in legitimate business is not considered of weight—as a compensation in some other way is possible, and the disposition to barter conscience and duty for money is such a thing as people who conduct a large business are not quite unlikely to lend themselves to if they are not allowed to pick—so, likewise, the supposed extent of the connexion of the merchant is no bar to their being supposed anxious to retain one more under felonious conditions. Neither the superiority of his knowledge and education, nor his skilfulness, are likely to make him either apprehensive or disinclined to the commission of a crime, whilst these qualities render him obnoxious to the remark, “that it may very generally be taken, that people know what they are about, unless they can show there was some particular concealment, some hinderance to their knowledge;” “unless they,” so accused, “can show,” that they did not know (not if those who accuse them have shown that they did know), then all the qualities of character, station, extent of business, education, are against the accused; and unless the accused can show, that he had a knowledge of something innocent having been intended by the foreign merchant, any peculiar circumstances of the case, which may appear to be of a favourable nature to the accused, must be considered only in that light which may diminish the improbability of his having had a guilty knowledge. Thus, as the employment of the British flag for the purpose of dealing in slaves stares every body in the face, and was a very strong feature in the present case, not only against any knowledge on the part of the charterer of the vessel and shipper of the goods in England, but even against there having been any guilty intent in the merchant abroad, who had the choice of other flags equally secure and less easy of detection and punishment, the favourable inference hence arising must be neutralised. “If Jennings” (the master of the vessel) “was an adventurer, if he were, as suggested, a very clever and intelligent person, and very conversant with every thing to be done on this occasion, a competent master of the vessel, supposing the slave trade to be intended, a thing which requires qualities one is sorry to see exercised so ill—a great deal of courage, sagacity, and presence of mind, and an unscrupulous readiness to employ them for the commission of this felony, not to be found in everybody—a man of such a description would be the paramount object of a slave trader, whose aim would be, whoever the owner may be, to elude all search, so to manage the thing as that the cruizers of any country shall not stop him. Probably, if the adventure succeeds, it must succeed by such means, so that one sees a perfectly good reason why, consistently with this being a slave trading voyage, it may have been English owned.” Not a word appears in the proceedings against the character of this man, neither does it seem intended by the learned Judge to impugn it, simply to say that if the man did possess the qualities of cleverness and courage attributed to him, these qualities being very serviceable for wicked purposes, it is to be inferred that they were intended to be applied to a slave trade adventure, since no plain and simple account of a lawful intent on the part of the foreign merchant has been given by the charterer in England, with whom the law is to be supposed to make a knowledge imperative. The prosecutor knew, although it was not before the Court, that this man had been tried for the very identical offence in this matter of the Augusta at Sierra Leone, and had been acquitted; for the chief witness in this prosecution, in which, be it observed, Jennings is coupled with me (see the indictment, page 211), was the prosecutor in the proceedings against him before the criminal court of that colony; and he himself stated before the Committee of the House of Commons (see Lieutenant Hill’s evidence, page 84), that Jennings had been acquitted. And here, by the way, let it be noticed, that Jennings is at this moment under a prosecution in London for the very crime for which he was tried at Sierra Leone and there acquitted, the chief and really the only witness, upon whose sworn depositions before the Grand Jury here the bill against Jennings has been found, being the very same person who instituted the prosecution at Sierra Leone, which terminated in the acquittal of Jennings. And thus, while the individual so acting is at this moment on his way to take possession of his appointment as governor of the Gold Coast, the unfortunate man, who he knows cannot be tried a second time, is in prison.

Further, as the vessel had been admitted (how reluctantly may be easily seen) by one witness not to have been furnished with equipment of any sort for slaving purposes, and had been rescued from the attempt to raise a doubt upon this point, by the evidence of another witness, this is shown also as in no way serving the shipping-agent in England without giving the plain and simple account of what was intended by the foreign merchant residing abroad. “I should think it would be quite a matter of course, even if the vessel was intended to be sent to promote the slave trade, that she should not go out with shackles or leagers, or any thing of that kind on board; for if they are on board, the vessel would be at the mercy of any Custom-house officer.”

The vessel had, however, been at Cadiz, where, according to the representation made on behalf of the prosecution she was really meant to go first, in order to provide herself with the slave instructions, which the Court would not receive, though strongly pressed, as evidence against the agent who had managed the vessel in England so far as chartering and loading her; and yet, although it had been said by Serjeant Bompas “that wherever a vessel leaves a place such as Spain, or some place where she may leave with impunity, with all her equipments complete,” she does so; and although this vessel, which has been charged by the prosecution to have gone into Cadiz for the very purpose of helping the illegal object imputed: she is found not to have been there equipped—and that not from any great attention to the safety of the adventure, for the letters contended to be so clearly slave instructions for the voyage seem to have been there put on board—still the observation is not the less applied, that she was not equipped for the slave trade, because she could not have been so in an English port, without any reference to the fact that the prosecution had contended she could and would have so been at a Spanish port. There she had, however, touched; and that too, according to the prosecution, for the very express purpose of helping the illegal object in a manner more condemnatory than any other. The thing demanded from the prisoner is, however, a plain and simple account of the intent of the foreign merchant in this transaction, and without his being able to give that, every other circumstance which may be favourable to him, either vanishes away, or converts itself into a weapon against him.

Again, the counsel for the defence had put the following case to the Jury:—“You may be manufacturers of guns or gunpowder, or commission-agents living in this country, who, for the purpose of shipment, purchase those goods; in either case a party comes and says—I want 1,000 muskets and six tons of gunpowder to be shipped to a certain place on the coast of Africa. I ask you, are you first to consult the map to ascertain the place, and, having ascertained where it is, are you to go to Captain Hill or Captain Denman and inquire whether they have been upon the coast of Africa, and can tell you the character of the trade carried on there? Are you next, the person being a Spaniard or a Portuguese, to inquire whether they ever deal in slaves; and if you find they do, are you to say, I will execute no order you give me?”

Upon this the learned Judge remarks:—“That Zulueta & Co. stand in a very different situation from that of a person who is simply the manufacturer or dealer in goods, and who has those goods ordered, and who, inquiring Where shall I send them? is answered, Send them on board the ‘Augusta,’ now lying at Liverpool. It would be a strong thing from that circumstance to infer that a person sending those goods on board had any thing to do with slave trading; but that appears not to be the nature of this transaction. In regard to there being a slave trading, all that is done, is done by Zulueta & Co. It is not merely that they had goods sent on board the ship, but they chose the number of the goods to be sent on board the ship, goods which they had bought, for which they had negotiated; and they made out such charter-party, and that charter-party provides that the ship shall proceed to Gallinas on the coast of Africa.”

In the case of the manufacturer of the goods, described as receiving an order and executing it, and shipping the goods on board a vessel for the Gallinas, it would be strong to infer that he had any thing to do with the slave trade. Why so, but because every one of these acts is compatible with ignorance of the objects that are or may be intended? Now, the learned Judge had previously established that the acts of buying and shipping, chartering, and dispatching, are not necessarily in themselves conclusive of guilt, which of course they are not; how, then, is the inapplicability of the comparison put by the counsel for the defence to be maintained, but by laying down the principle, that for the purpose of a defence under this charge, the commission-agent must, at all events, be required to be possessed of, and therefore to be able to give, a plain and simple account of what the merchant abroad intended; and this once laid down, nothing that comes short of it must be suffered to tell in his favour.

The preceding remarks are scattered over the whole of the summing up, and accompany a recapitulation of the particulars of the case. They are here brought together in succession, for the purpose of showing the manner in which the circumstances of the case, in a proceeding of this kind, are treated. It is very true that an introductory remark precedes, laying down “that it is necessary undoubtedly, on the part of the prosecution, that there should be a case made of knowledge, on the part of the prisoner, of the purpose for which this adventure was meant.” The whole process which follows is of a nature which would appear contrary to this principle, unless with the qualification that the proof is to consist in the prisoner not giving himself a plain and simple account of something innocent meant by the foreign merchant residing abroad; and as if the law left no alternative to the shipping-agent, who buys and ships the goods in England by his order, but to do this; or, ipso facto, by not doing so, to stand self-convicted of the guilty knowledge.

Under this view of the requirement of the law, which I have now followed throughout this charge, the concluding remarks of the Judge seem to be dictated. “Now, inasmuch as there are two other partners, and it is probable there might be some other persons in the concern, there arises this consideration. It is true, supposing that there were a case made, but that the prisoner was innocent of it, that he could not call Martinez & Co. on that supposition, as he might on the supposition of there being no slave trading; for Martinez & Co. would not be innocent persons, and they would not be willing to come into this country and say, ‘We carried on the slave trading, but it was disguised from our correspondent, Zulueta & Co.’ If you think there is a case requiring an answer, the question then is, would there have been any difficulty in the prisoner calling his two partners, and others conversant with the business of the firm, and proving that Zulueta & Co. knew nothing at all about this, that they had not the least suspicion, that Martinez & Co. never communicated the fact to them, and that the illegal purpose was utterly unknown to them, for some reasons which the prisoner cannot give, but which his partners could? It would be extremely desirable they should do it, if the defence existed in point of fact.” And lastly, the learned Judge concludes his address to the Jury, by directing their attention to the evidence of the character of the prisoner, remarking, that it is “a character I should say very strong indeed, and almost conclusive, supposing the case were one that did not admit of an answer in point of fact.”

Here the same principle of demanding a justification of innocence is carried out, which pervades the whole of the summing up, and of every part of the management of the case by the Court. It is not said, in any one part of the charge, that the prosecution have made out either a case of slave dealing, or any knowledge of such a thing being intended, or known to be intended by the prisoner, against which a contrary case should be opened and proved; but only that evidence which the prisoner should give of innocence is pointed out; and, what is most remarkable, the following circumstance was not thought worthy of notice.

Mr. Fitz-Roy Kelly (the counsel for the defence) had in the outset, when Mr. Serjeant Bompas was opening the evidence for the prosecution, brought into Court every book, letter, and paper of the firm of Zulueta & Co., with the clerks in whose keeping these documents constantly are: they consisted of the journals, ledgers, letters, bill-books, memorandum-books, original letters of the house of Martinez & Co., of the Havannah, and Martinez of Cadiz, since 1839, one year before these transactions originated, up to 1841, one year after their termination; and, as will be found in page 303, Mr. Kelly made the following tender:—“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.... 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.” This is not taken any notice of by the learned Judge, when pointing out that the prisoner should have called his own father and his own brother, the only partners in the house, to prove that Zulueta & Co. had no knowledge of any slave trading being intended, although the prisoner himself had so stated the fact to be before the Committee of the House of Commons, in the evidence which had been read in Court; and if the statement was objectionable, as being from the party now deeply interested himself, when in a very different situation, it is not perceived how that objection would not have held with tenfold strength at that moment against their evidence. Thus it remains on record, that nothing short of a plain and simple account of what the merchant abroad intends, made out by the defendant, will answer any purpose of the slightest advantage to himself. It is enough in the case of a vessel employed by an agent in England to carry goods, bought and shipped by himself, by order and for account of a foreign merchant residing abroad, if the prosecutor show a general slaving at the port of destination.

And thus have I disposed of the last point which I proposed to illustrate out of the summing up of Justice Maule, in order to show the position of merchants who have intercourse of business with countries wherein slavery, and the slave trade, is still permitted to exist.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“John Scoble, Secretary.”

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

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

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

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

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

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

The absurdity which appears on the face of such a statement as this just made, involving as it does the cutting off communication with half the world at least, and leaving the communication with the other half very much on the footing of an inconsistency, renders the accuracy of the rule, as a conclusion from the preceding reasoning, very suspicious. I appeal, however, to every candid and honest mind whether it be or it be not the conclusion which, but for its absurdity, (if so it is to be called) would be imperative, and such as could not be avoided without manifest want of honesty. If such is the real fact—if the conclusion is just and legitimate, and yet it leads to something absurd and wrong; then the principles upon which it proceeds must themselves be the wrong-doers. The state of the law, which leaves no other alternative than that of an impracticable absurdity on the one side, and on the other an exposure, imminent and threatening, to an indictment, followed up by the most terrible consequences, even if a conviction does not take place—must be wrong. It deserves a stronger epithet, lest it should be thought that by wrong is only meant unwise—it is positively of the very nature of a national crime—it is a deep moral stain upon the people who suffer this state of things to continue in all its hideous deformity, whilst the victims to such a state of the law could only be looked upon as barbarously sacrificed: the people tolerating its continuance, when once made aware of what was being done, could be considered only as a race of heartless, cruel tyrants. In the pursuit of a praiseworthy object it is very possible, and indeed it is not uncommon, for a nation no less than for an individual to betray itself into a very false position, which is made so much the more mischievous, because, in the case of the nation no less than the individual, people are found ready to take advantage of that position. But so soon as the evil reveals itself in this practical shape, the nation, quite as much as the individual, is called upon to remove the very possibility of a repetition of the act of oppression arising from that false position.

And what is the false position in which this country appears before the whole world in the matter before us? It is this. Here is a people with whom trade and manufactures form very important elements of wealth, independent of the justly admitted tendency of both to promote civilization—a most important, but not the present consideration—these people thrive largely by their mercantile intercourse with Cuba, with the Brazils, with Spain and with Portugal, with the United States, with Africa, so much so, that they cannot dispense with that trade. Those of their people who follow the commercial career in all its branches, their merchants, manufacturers, and ship-owners, and conduct the intercourse with those countries, materially contribute to the welfare and to the prosperity of every class of the community in which they live. They contribute not a little to the support of the State, and when an emergency arises, when the credit of the country and the honour of the Crown are at stake, they are among the first upon whom the call is made, and is not made in vain: and yet the state of the law among this people who derive the important benefits, which have not certainly been exaggerated, from a commercial intercourse with the countries just mentioned, is such as to place those of their fellow-countrymen, who conduct that intercourse, and are therefore nearest in contact with those countries, liable to be dragged from the scene of their labours, so vital to the prosperity of this people, as common felons, upon an indictment secretly procured and obtained; and their very acts, notoriously necessary for carrying on the very operations of commerce, which the country cannot dispense with, are in the first instance to form the presumption of the guilt, and afterwards the proof of it, unless they can prove them to be not guilty. It is true that this people have anathematized a branch of trade which subsists in those countries, and have expunged that trade from their code of licit pursuits at an immense sacrifice to themselves, and are determined to extinguish it among the nations of the earth, as far as it can be done by lawful means; but inasmuch as they cannot dispense with all other intercourse with other countries, although fully aware that from that intercourse the proscribed traffic must necessarily derive assistance (since it cannot be separated from any one licit pursuit in the countries wherein it prevails), they are bound so to construct the law as to protect the men who conduct that intercourse, against any attacks which may be founded more or less on the use to which others, and not themselves, may turn the acknowledged necessary and legitimate acts, without which the intercourse cannot exist. And if such be the meaning of the law, as I have no doubt whatever there is not one man in Great Britain at all acquainted with these matters, who has not been, to this moment, in the understanding that such and no other was the state of the case—if it be not meant that the intention is that a law shall be made with apparently one meaning, and to be used for a quite different purpose—when the perversion which it seems to authorise shall have been discovered, sharpened by the application of the right of private prosecution, and in the form of a secretly procured indictment, which destroys before it convicts—there is only one of these honest courses left—either let the law—a clearer law—be substituted for that which exists, or let it be clearly explained; and, at all events, let the right of prosecution be placed exclusively in hands, and limited to a course of proceeding, which will afford some guarantee for its right use. Let us cast away from us the worst features of the Inquisition.

It cannot be meant to leave matters so—that the nation shall be deriving all the benefits of commercial intercourse with the countries already mentioned, trusting to our desire for profit as merchants to get the better of our prudence as reasonable men—that we shall be content to run the risk of private prosecution, and secretly procured indictments, of arrest, imprisonment, ruin, disgrace, transportation, the sacrifice of all that is dear to a man on earth; and, therefore, that the nation will go on prospering by our labour, whilst we ourselves may be told that we need only be a little more careful. And all this, as if it was meant to be insinuated that if a victim is now and then made, it is expedient that it should be so; that it is not extremely harsh, since merchants are to be thought of only as men accustomed to risks, and therefore who get obdurate against adversity—as if it were assumed, that as to the victim so made, it is sure to be some one who has deserved his fate by a more than ordinary degree of temerity, by going a little too far, or by an act of rebellion against the attempt to fix the brand on his forehead, which really, when once we have suffered ourselves to be so far stigmatised, there can be little doubt will be designated as a degree of fastidiousness to which an exclusively money-making and money-loving race can have no just pretensions. You may trust to their rapacity (it would seem to be argued by this defamatory process, which before it is openly avowed must work its way by implying as much in action, as, if it were not too revolting, would be stated in as many words)—you may trust to their rapacity for any necessary amount of risk being encountered, and therefore no fear of trade being given up, because we make it a little—only just take care that it shall not appear too dangerous.

This is not, I am sure, the position which is meant to be taken by the country towards a profession heretofore deemed honourable, and which has become interwoven with the highest ranks of our society. It is not, it cannot be meant, that such be the state of things at home, as between the merchant and the country.

Neither is another position (in every moral point of view equally indefensible) to be taken by British merchants towards their correspondents abroad, even supposing it could last. It is well known and admitted, that a mercantile intercourse imposes a tacit contract between the two parties who carry on a correspondence, a breach of which can be visited by the law; that in the progress of the intercourse all acts mutually required within the mercantile usage, and not otherwise illegal or improper, shall be performed. If a man carries on a correspondence with another and a course of business, he is not at liberty, either as a matter of principle or of law, to break it off when and how he pleases. Are we called upon as merchants in England, either by the requirements of the law, or by public opinion, to encourage our foreign correspondents to send their sugars and their coffees, their tobacco and their cotton, their copper ore, their minerals, and other produce, to us in England, and when we are quite sure of our profits, when they begin to dispose of the proceeds of their property, and we fancy (which must be very soon, after what the late proceedings have exhibited) that we may render ourselves liable to a prosecution—are we then to turn round upon our correspondents, and say, “I cannot accept your bill until you show me that its proceeds are not going to buy slaves with?” “I cannot honour the credit you have opened in behalf of A, B, or C, because I see in the ‘Anti-Slavery Reporter,’ that ‘he is a notorious slave dealer.’” Are we, when our correspondent sends an order to buy a ship which is on public sale, and which may be employed in any trade, and goods which you, reader, may happen to manufacture yourself—are we then to turn upon our correspondent and say, “Show to us satisfactorily that these things are not intended by you or any one connected with you, indeed that they cannot be used, in promoting the slave trade?”

And again, are we to trust to the circumstance of his being in our power, and to the odium which the simple imputation of slave dealing will attach to him, to bear us out in our justification, should he bring an action against us? Are we, upon receiving an order from our correspondent, to lay it before counsel for their opinion, which we have seen will advance us very little? Shall we disclose the name of our correspondent with the insinuation that he may be a slave dealer, or that we suspect him to be one, or that some one else suspects him, thus helping, as far as we are able, to put his property in peril, and to render every communication with him dangerous? Shall we advertise our counting-houses in England, not, as they have been hitherto considered to be, the symbol of security and good faith, but as nests of treachery, deceit, and suspicion? and shall our intercourse with foreign merchants assume the character of covert espionage? A state of things such as this, inflicting gross injustice, cruel injury, inexpressible degradation, upon one class of men, and that class of which England has had hitherto good reason to be proud—such a state of things at home, and so much scandal and disgrace abroad, is not, cannot be, contemplated without feelings of the deepest horror.

I denounce this state of things as involving a national crime—as attended with national disgrace; I denounce it as a stain which should be wiped off without delay from the character of a nation eminently jealous of its public as much as of its private morality, as an offence to the religious feeling which is not wanting among us; I appeal to the conscience of every man in Great Britain against this state of things. May I not take upon myself to say, that I make this appeal in behalf of a class which yields to no other of the community in high principle or right feeling—a class which is not at all below the standard of morality, religious convictions, tastes, education, which may be set by the most distinguished in this country? I do appeal to the Legislature and to the Government of the land, which do not make laws or maintain them as a snare or a trap against a particular class of their subjects. I appeal to the Honourable Members of the Committee of the House of Commons on the West Coast of Africa, before whom I appeared in 1842; I appeal to them as senators, as gentlemen, as men of honour and principle—I do appeal to all, whether the position of merchants in mercantile intercourse with countries in which the slave trade and slavery exist, should remain as it has been shown to be now by the late proceeding; whether the laws should not be made such, that, whilst we should be answerable for our own acts, and for our participation and consent in the wrong acts of others, we may not be undone before we are even heard in our defence; that we may not be required to prove ourselves innocent before we are proved to be guilty; and, above all, that the right of prosecution may be confined to such hands, and its use to such a procedure as will afford the British merchant a guarantee against private, malicious, secretly conducted attacks, and will make his personal security something more than a mockery. I make this appeal with the same confidence in the result, which my conscience felt when I stood before the British Jury, into whose hands it pleased Providence, by so unexpected a proceeding, to place, in point of fact, my very existence—the existence of all that is dear to me on earth—of much that the world has had opportunities to try and has stamped as honourable in character—of much, not the less valuable because the world can never know of it—the Jury upon whose verdict hung the honour of this country—a country for whose honour and estimation among the nations of the earth I must feel strongly—and from which a gross and cruel injustice would be doubly felt, bound to it as I am by those ties, which it has been attempted barbarously to tear asunder, but which it is only in the power of God to dissolve.

P. DE ZULUETA.

London, 17th January, 1844.

OPINIONS OF THE LEGAL AUTHORITIES
Referred to in p. lxii.

“1 & 2. There is not any thing in the Act of Parliament in question which renders illegal a commercial dealing on the coast of Africa, in usual lawful merchandise, though such dealing may be with a person known to gain his livelihood by dealing in slaves, and therefore of course, an owner or supercargo making a sale in the manner described to any such person, does not subject himself or the ship to any of the penalties of the Act.

“3. Independently of the above Act, an English owner, or master, or supercargo, or other person who engages in such commercial dealing as above described, is not guilty of any offence against the law, nor subject to any punishment.

(signed) “Fred. Pollock.”

“Temple, 8 June, 1842.

(Vide Report, West Coast of Africa, Part I, p. 344.)

“1. Unless the merchant knew, when he sold the goods, that they were used for carrying on the slave trade, I am clearly of opinion that he is not guilty of felony. The question of knowledge will be for the Jury, if the case is tried by a Jury, or by a Judge or Judges without a Jury, and will depend upon the evidence that is given either of direct knowledge, or that the circumstances were such that he must have known the destination and occupation of the vessel and her crew.

“2. It will appear from the statutes 11th and 12th, and 46th of Geo. III, c. 54, &c., that the merchant might be tried at Sierra Leone, and if so, I am disposed to think that the constituted authorities at Cape Coast would be warranted in apprehending him and sending him for trial to Sierra Leone, as the offence committed is felony.

“3. I hardly know what precautionary measures can be adopted by the Governor in cases where it is unknown whether the vessels are intended for the slave trade or not. The same articles that are used for bartering for slaves are no doubt also used in bartering for palm-oil, elephant’s teeth, and other African products, and to prohibit all dealing in such articles of barter would be greatly prejudicial to the innocent trade carried on with Africa. The Governor can hardly do more than warn merchants not to deal in such articles with suspected vessels upon peril of the consequences.

(signed) “W. Wightman.”

“Inner Temple, July 8th, 1840.

(Vide Report, West Coast of Africa, Part II, Appendix, &c., p. 25.)

“If a person fitted out a vessel to traffic with slave factories and settlements, and sold goods to those factories, out and out, though they were such as might be used for the slave trade, as well as the innocent commerce of the coast; and though, in point of fact, they were used in slave trading, he was of opinion that this did not amount to slave trading: whether it was a commendable use of capital or not, was a different question. If the goods sent out were of such a description that it could not be doubtful that they were to be used in the slave trade alone, such as a cargo of fetters or other implements that could only be employed in such a trade, he had stated that he deemed this much more doubtful, yet he was not prepared to say that it was an act of slave trading which would render the exporter of such articles liable to be tried for felony. But if goods were sent, whether of one kind or the other, whether of an ambiguous description, or plainly fitted for the slave trade alone, and the price of the goods was to depend (as the petitioners stated to be the fact) upon the slave trade, in which such goods were to be employed, he had stated that his opinion was that this was an act of slave trading, being in truth a partnership with slave traders, and the persons exporting such goods would be guilty of a felony within the meaning of the Abolition law.”

(Extract from Lord Brougham’s Speech before the House of Lords, Oct. 5, 1841. Vide Hansard’s Parliamentary Debates, Vol. LIX, fo. 1116.)