CONTENTS. (continued 2)

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.