May it please your Lordship,
Gentlemen of the Jury,
I assure you I am extremely sorry on my own account, and still more
sorry on your account, that it will be necessary for me, if I am able to
do it, to take up a considerable portion more of your time, in the
discussion of this most important question; a question, certainly, of
great importance to the public; a question, of great importance to the
three individuals whose interests are committed to my charge; for,
gentlemen, upon the issue of this question, with reference to them,
depends whether they are to hold the situation in society which they
have hitherto held, or whether they are to be completely degraded and
ruined.
Gentlemen, allusions in the course of the day have been made to that
which passes at the Old Bailey; no sentence that can be passed there,
can be felt more by the persons on whom it is passed, than a verdict of
Guilty will be felt by these three persons.
Gentlemen, from the attention I have observed every one of you giving to
the evidence, and from the accuracy of the notes that have been taken by
the noble and learned Judge, I have, at this late hour, this consolation
left to me, that whatever I may omit, you will supply; whatever I shall
not be able to impress upon you, in the manner it ought to be impressed
upon you, will be brought to your consideration by his Lordship, and
that that explanation which I shall feel myself unable to give, he will
be in a situation to give; and with this hope, I proceed to call your
attention to the case of these gentlemen:--My Lord Cochrane, Mr.
Cochrane Johnstone, and Mr. Butt; the interests of the other defendants
being committed to much abler hands.
Gentlemen, there are very few of the introductory observations that were
made to you by my learned friend, which I am in a condition, or feel any
disposition to dispute. I by no means dispute, that what is charged in
this indictment is not an offence of very considerable magnitude; if I
was satisfied that it was not an offence which the law of the country
reaches, I protest to you, that I would not take any objection upon that
score; because I am quite convinced that acquittal, upon such a ground
as that, would be an acquittal that would not answer the purpose of the
respectable gentlemen that I represent before you.
Gentlemen, I have observed some of my learned friends asking questions,
which seemed calculated to obtain answers on which some legal objection
might be founded. I hope you will recollect, that I have never asked any
such questions; on the contrary, I have avoided looking at the
indictment, lest I should see any thing that should force an objection
upon me, and prevent this case from being decided upon its merits.
Gentlemen, I certainly do admit, that it is a crime, and a crime of a
great magnitude, for any person, by means of the circulation of false
news, to attempt to raise the price of the public funds; in consequence
of which, individuals who are fair purchasers of such funds, are
compelled to pay more than the stock they purchase is fairly worth. I
hope, whoever were the authors of this, which has been called, and
improperly called, a hoax, will suffer for their offence; but when we
are reminded, that certain persons have suffered by it, I must say, that
the fair purchasers who have suffered, are but few in comparison to
those who are objects of no compassion, namely, the gamblers who
attended at the Stock Exchange upon this occasion.
Gentlemen, I admit also, that which has been stated by my
learned friends, that it is not necessary, for the purpose of bringing
home the crime of conspiracy to any individual who may be charged with
it, that you should call a person who was present at any of the
consultations--shew the casting of the different parts of those who were
to act in the drama, and point out distinctly who those were who were to
perform, and how afterwards they have performed these parts. I admit
that all this is not necessary to be proved: conspiracy, like every
other offence, may be brought home by circumstantial proof. Indeed,
circumstantial proof is, in many cases, more satisfactory than that
which is direct and positive, because it is free from the suspicion of
falsehood. But I deny, upon this occasion, that there are any
circumstances that bring home the crime of conspiracy to any of the
three persons whom I represent. All that is proved may be true, and yet
the defendants may be innocent. The circumstantial evidence that alone
can warrant conviction, is the proof of such facts as could not have
happened had the accused been innocent.
Gentlemen, whether Mr. De Berenger be the Colonel Du Bourg who pretended
to bring the news from France, or not, it is not for me to discuss; I
shall leave that question to my learned friend Mr. Park, who is counsel
for Mr. De Berenger, and who, I hope, will be able to satisfy you that
Mr. De Berenger is not that Colonel Du Bourg; if he is not that Colonel
Du Bourg, then there is no evidence against either of the parties I
represent. But admitting, for the purpose of my presenting the case to
you which I am called upon to support, that De Berenger is that Du
Bourg, still it is another question, whether either of these defendants
were connected with De Berenger; and I do, notwithstanding what has been
stated to you by my learned friend, that he was perfectly certain that
he should bring home the guilt charged by this indictment to all the
defendants, submit most confidently, that there is no evidence against
either of my clients.
Gentlemen, it is extremely difficult, amidst such a mass of evidence as
has been laid before you, to bring one's attention, or to call your
attention immediately to the evidence that applied to any particular
person. I will take the three cases in the order in which they stand
upon this indictment; and the first of those three for whom I am
concerned, is my Lord Cochrane.
Now, gentlemen, let us examine the evidence that is offered to you, to
prove that he is connected with this conspiracy. It consists in this,
that my Lord Cochrane did, on the 21st of February, sell £.139,000
Omnium; and further, that Mr. De Berenger was, on the morning of the
21st of February, at the house of Lord Cochrane. Gentlemen, as far as I
can collect, from the attention I have been able to give to the
evidence, I have stated the utmost effect of the evidence against my
Lord Cochrane; for, gentlemen, though it was suggested by my learned
friend, Mr. Gurney, that he should trace some of the notes which were
found in the desk of Mr. De Berenger into the hands of my Lord Cochrane,
I beg to state, that there is not one single note traced into the hands
of my Lord Cochrane. I admit that there are notes found in the chest of
De Berenger, traced into the hands of the other two defendants; but I
believe I shall be able, by and by, satisfactorily to shew you how these
notes came from the hands of one of the defendants into the hands of De
Berenger, and to prove that they came into the hands of De Berenger,
under circumstances altogether unconnected with that which is the
subject of your enquiry; but I am, for the present, only considering the
case of Lord Cochrane; and I would beg the favour of his Lordship now to
refer to his notes, and I am persuaded his Lordship will go along with
me in the observations I am making, that there is no evidence whatever
to bring home any one of the notes to my Lord Cochrane.
Gentlemen, the only part of the evidence which has the least tendency to
connect my Lord Cochrane, by means of the notes, with Mr. De Berenger,
is the evidence that was given by a person of the name of Lance; there
is not one other witness that attempts to state, that a single note
traced from the hands of Lord Cochrane, ever was found in the hands of
Mr. De Berenger; now, if you will have the goodness to attend to Lance's
evidence, you will find that there were for a time put into the hands of
Lord Cochrane two £.100 notes, which were afterwards found at the Bank,
and in exchange for which two hundred one pound notes were given to the
person changing them, and that a considerable quantity of those £.1
notes have certainly been proved to be found in the chest of Mr. De
Berenger; but permit me to state, that though those two £.100 notes, by
which one hundred £.1 notes were afterwards produced, are for a short
space of time shewn to be in the hands of Lord Cochrane, that the same
witness tells you, that those £.100 notes were got back from my Lord
Cochrane again, before they were exchanged at the Bank; for he tells
you, that he carried those two £.100 notes to the Bank _for Mr. Butt_.
Gentlemen, my learned friend, who cross-examined Mr. Lance, certainly
could not get from him that he was present at the time when my Lord
Cochrane paid those two notes into the hands of Mr. Butt; but it is
perfectly clear, from that which he subsequently stated, that at some
period before they found their way into the Bank, and before they can
furnish any means of proof against the parties, they must have been
returned to Butt's; these notes might have been in the hands of any one
of you, gentlemen; but the question is, on whose account the two hundred
£.1 notes were received from the Bank, for it is these small notes which
can alone connect the party with Mr. De Berenger. Now, I say, Mr.
Lance, in a part of his evidence, stated, that though he was not present
at the time Lord Cochrane returned the two £.100 notes to Butt, yet that
he afterwards received those notes, not from the hands of Lord Cochrane,
but from the hands of Mr. Butt; for Mr. Butt he went to the Bank; for
Mr. Butt he got the two hundred £.1 notes, and those two hundred £.1
notes he delivered back into the hands of Mr. Butt. Gentlemen, I am sure
therefore, that if I have made myself understood upon this part of the
case, I have completely released Lord Cochrane from the effect of this
evidence, for though the two large notes were once in his hands, these
notes were never in the hands of De Berenger. The notes found on him
were the small notes given in exchange for them at the Bank, and these
were given to Mr. Butt, and not Lord Cochrane. It is perfectly clear,
therefore, that though these had been in the hands of Lord Cochrane,
from the money transactions taking place between them every day, it was
Mr. Butt that was the possessor of those notes, at the time the £.1
notes were obtained for them; I am satisfied, therefore, you will see
that this evidence does not connect Mr. De Berenger with Lord Cochrane.
I am quite confident, therefore, that I am right, when I state to you,
that my learned friend's attempt to draw an unfavourable inference from
the circumstance of De Berenger being in possession of notes which once
belonged to Lord Cochrane, is completely answered; and then I state
again, that the only points which remain for your consideration, with
respect to Lord Cochrane, are, first; the large sale of stock on the
21st of February; and, next, De Berenger being at his house on that day;
with respect to the last circumstance, that is proved only by Lord
Cochrane's affidavit, and I think I shall shew that Lord Cochrane, in
that affidavit, completely explains that circumstance.
Gentlemen, with respect to the large sale on the 21st of February, I do
not think the Committee of the Stock Exchange have conducted themselves
quite fairly in a criminal case; because, in a criminal case, it is not
fit to take up a piece of evidence just exactly at that point where it
will suit the purpose of those who offer it, keeping back other evidence
which they know is extremely important, which they must know is
calculated to do away the effect of that which they offer. Now,
gentlemen, for the purpose of implicating Lord Cochrane, the Stock
Exchange have instructed my learned friend, Mr. Gurney, to state, and
Mr. Gurney did, in pursuance of his instructions, state most expressly,
that Lord Cochrane began his Stock Exchange speculations about one week
before the 21st of February; and, till I cross-examined Mr. Fearn, you
must necessarily have understood, as well from the statement of counsel,
as from the evidence that has been offered, that Lord Cochrane, about
six or seven days only antecedent to the 21st of February, had purchased
the whole of the £.139,000 that was sold out on that day; that his
lordship had never speculated in the funds before, and, therefore, that
all his purchases must have been made in order that he might have so
much stock to sell at this particular time. But, gentlemen, it turns out
that Lord Cochrane had been deeply speculating in the Stock Exchange for
several months before, and so the inference, that he purchased this
stock with a view to the event that happened on the 21st of February, is
rebutted; that Lord Cochrane did not first begin to buy this £.139,000
merely for the purpose of selling on the 21st of February, is most
clearly proved by the testimony of Fearn and of Hichens, who say, that
so early as the month of November preceding Lord Cochrane had bought
very largely, and had sold very largely; and that he continued to buy
and to sell, down to the very period of the last sale taking place; it
is impossible, therefore, when the evidence is laid before you, that you
can collect, merely from the circumstance of his selling so large a sum
as £.139,000 on the 21st of February, that he was guilty of a conspiracy
to occasion a rise in the funds on that day. The witness did not come
prepared to state to you, what had been the extent of the sales made by
Lord Cochrane on antecedent days; but when he states that he sold
largely, (I think I may venture to say, that he sold nearly as much on
previous days as on this occasion); you will find therefore nothing to
distinguish the conduct of Lord Cochrane on the 21st of February, from
that which had been his conduct on many days precedent.
Gentlemen, I trust therefore, that in a criminal case, you will think
that the inference of criminality which is supposed to arise merely from
the circumstance of the sale of this large quantity of stock, is
rebutted by the fact I have now brought under your consideration; but
you will have the goodness also to bear in mind another circumstance. I
did expect, when I heard the case opened with so much confidence against
Lord Cochrane, that you would hear of some particular directions being
given to sell on that day; but, gentlemen, how does that fact turn out;
no particular directions are given to sell on that day, but Lord
Cochrane's general directions, from the first moment when he became a
speculator in stock, were, that whenever any event should happen by
which the stocks should be raised, one per cent. the broker was not to
wait for particular directions, but to sell; and this large sale of
£.139,000, from whence the inference is drawn, that Lord Cochrane
necessarily knew of the conspiracy which had taken place, was made under
these general directions. It is also to be observed, that Lord Cochrane
was never present in the city a single hour during the 21st; there is no
evidence given that he was there; on the contrary, all the witnesses
that have been examined, have told you they did not see him there; all
the stock was therefore sold on that day, without any interference on
his part; and as it appears beyond all question, a very considerable
part of the stock of all these gentlemen was sold before any of them
came into the city, and without any particular directions on the subject
of the sale of it.
Gentlemen, the sale of the stock which Lord Cochrane possessed,
considering the circumstances under which he became possessed of it, and
the circumstances under which it was sold, furnishes, I submit to you,
no proof that he was privy to what they have called the hoax. I beg
pardon of the noble and learned judge, for using this term, after the
observation that his lordship has made upon it. I did not use it for the
purpose of treating with levity the crime contained in the indictment;
but it has been so frequently applied to this crime, both before and
since the prosecution was instituted, that it is difficult in the hurry
of speech to avoid using it.
Gentlemen, another circumstance has transpired, which I think furnishes
a strong observation in favour of all my clients; namely, the practice
of selling both stock and omnium, which the seller is not at the time of
such sale in possession of. If Lord Cochrane had been privy to the
fraud, would he have contented himself with merely selling the stock
that he had previously purchased. Would you not have found him selling
to every buyer that offered (and on the 21st of February there was no
scarcity of buyers at the advanced prices) stock and scrip in any
quantity; if he had been privy to the fraud, he must have known that the
bubble would soon burst, that the funds would fall back to their former
prices, and that by every sale that he so made, he must be a great
gainer; yet he is not found selling the value of a shilling in this
manner; nothing is sold but what had been previously bought, and that
sold under general directions given to the broker previous to the day
of sale, and previous to the time when the conspiracy could have been
conceived. If his lordship had been one of the conspirators, he must
have been found to have made many more thousands of pounds by the
speculations of this day, than he either is or can be proved to have
made hundreds. Avarice, always insatiable, which had in this case
impelled the defendant to hazard every thing that was dear and valuable
to him in life, stops short in the hot pursuit of its object, at the
very moment when the most abundant means of gratification are brought
within its reach. Does not then the inference of innocence, arising from
what he did not sell, although he might have sold much, outweigh the
inference of guilt, arising from what he actually did sell; what he did
on this day, it is not only possible but probable that he might have
done, and yet be innocent of the conspiracy with which he is charged;
what he did not do, he could not have omitted to do, if he had been
guilty.
My learned friend, Mr. Gurney, has told you, that the circumstance of
his selling out as he did, proves his privity to the conspiracy. Men who
were unconscious of the risk, says my learned friend, did not sell on
the first rise in the market, but held their stock in the expectation of
gaining still higher prices; but the defendant, knowing that the
falsehood of the news would soon be discovered, and that its effect on
the funds must be of very short duration, sells his whole stock on the
opening of the market. I should have felt the force of this argument,
had you found Lord Cochrane on the Stock Exchange, pressing his brokers
to complete their sales; but when you find that his lordship was not
present, and gave no directions for immediate sales, but that his stock
was sold under orders given before the fraud could have been thought of,
I trust that you will find it not worthy of much attention. If, however,
you are to decide on the guilt or innocence of Lord Cochrane from the
transactions of the 21st of February, you will look at the whole of his
conduct, and when pressed to find that the circumstance of his selling
is proof of his guilt, you will say, that the circumstance of his not
selling more than he did, is a still stronger proof of his innocence. My
learned friend will have an opportunity in his reply, of accounting why
his lordship and his supposed co-conspirators did not sell more; and I
think he will find it a task that will transcend even his powers, to
account for it in a manner compatible with their guilt.
Gentlemen, the only remaining point relative to Lord Cochrane is this;
that on the morning of the 21st of February Mr. De Berenger went to the
house of his lordship. Gentlemen, it is material for your consideration
how the Stock Exchange got the knowledge of that fact. Gentlemen, but
for my Lord Cochrane, the Stock Exchange never would have known of the
existence of any such person as De Berenger; but for my Lord Cochrane,
it is impossible that the Stock Exchange could have instituted this
prosecution, because it was by Lord Cochrane's affidavit only that the
name of De Berenger was given to them. I am aware my learned friend
stated to you, that the Stock Exchange had some reason to suspect that a
Mr. De Berenger had been engaged in it before this affidavit was
published; but, Gentlemen, my learned friend has offered no proof of the
grounds of such suspicion; the only proof that he has offered upon the
subject, is the proof which my Lord Cochrane's affidavit furnished him
with. Now, Gentlemen, I have a right to say, that the mere circumstance
of Lord Cochrane's introducing the name of Mr. De Berenger for the first
time, in that affidavit, is of itself sufficient to repel the inference
arising from the circumstance of De Berenger's going to his house. But,
gentlemen, I am sure you will bear in mind the very important evidence
that was given by Mr. Wright upon that subject. My learned friend may
repeat again the observation with which he introduced this prosecution,
that those who are wicked are not always wise, and that it so happens
frequently, that men do acts without considering the consequences of
those acts, and that it is in consequence of this want of consideration
that criminality is often brought home to delinquents; but it appears
from Mr. Wright's testimony, that Lord Cochrane was fully aware of the
consequence of the affidavit that he was about to publish. Mr. Wright,
the printer, who was called for the purpose of shewing that this
affidavit had been printed by Lord Cochrane, tells you, that when he
received the instructions from Lord Cochrane to print the affidavit,
Lord Cochrane said this, _I have no reason to think De Berenger was the
man, but if he was, I have given the Stock Exchange a clue to him_; so
that you see, at the very moment that his lordship published that
affidavit, he was perfectly aware of the consequence of what he was
about; and he must know, that if the Stock Exchange could not find out
who this man was who came to his house, it would be impossible for them
to reach his lordship. He must know that they were likely to remain for
ever ignorant who that person was. He comes forward and tells them who
that person was, recollecting at the time he makes the disclosure, that
if that person be guilty, he would by the act he was about to do deliver
him over to their justice. What must those persons think of Lord
Cochrane? who after this can consider him as implicated in the guilt of
this conspiracy? the guilty men knowingly and advisedly point out to
their prosecutors, the only course by which they can be hunted down;
such guilty men must be men of too weak understandings to be answerable
for their conduct either to God or their country. In the declaration
that Lord Cochrane made to Mr. Wright, he did that justice to Mr. De
Berenger which his knowledge of that gentleman compelled him to do; he
said he did not think him guilty; but if he was guilty, he was about to
give him up to the punishment that he justly merited. Gentlemen, there
is more of simplicity, more of fair dealing in this behaviour, than was
ever found connected with so much guilt as is imputed by the indictment
that you are trying, to this defendant.
Gentlemen, let us look at the affidavit itself; my learned friend
indulged himself with making upon it a great number of very harsh
observations. It is easy to raise suspicions; but suspicion and
conviction are different things. Recollect, that before you can convict
Lord Cochrane, you must be convinced that this affidavit is altogether
false. Gentlemen, it might possibly be said, that that noble Lord, not
reflecting on the consequences of such an offence as that imputed to him
by this indictment, might be engaged in it; but you must impute to Lord
Cochrane a much more serious offence, one for which want of
consideration will be no excuse, after that affidavit has been laid
before you, or it is impossible for you to say that he can be convicted
of this conspiracy; for it will not be forgotten by you, that at the
close of that affidavit, my Lord Cochrane does, in the most solemn
manner protest, that he is altogether innocent of the offence which is
imputed to him by the Stock Exchange Committee. Gentlemen, I cannot put
that better to you than in the words of the affidavit itself; after
stating every thing that had taken place with respect to De Berenger
coming to his house, his Lordship says, "Further, I do solemnly depose,
that I had no connexion or dealing with any one, save the above
mentioned, and that I did not directly or indirectly, by myself, or by
any other, take or procure any office or apartment for any broker or
other person for the transaction of Stock affairs."
Gentlemen, it is said that this affidavit has only been sworn before a
magistrate; a lawyer, like my learned friend, knows that upon an
affidavit so sworn a party cannot be indicted for perjury; but my
learned friend will have a great difficulty in convincing you, that Lord
Cochrane, whose education has been different from that of my learned
friend, knew that he was not liable to that punishment. I am persuaded
that he conceived himself as completely amenable to the guilt of
perjury, as if that oath had been taken in a court of justice. But is
the temporal danger that awaits an act of this sort, the only thing that
could prevent a person of the character and situation in life of this
noble person, from making such an affidavit. What reason has my learned
friend given you to-day? What reason can you collect from the former
life of this noble person, (for he has been before you, and has lived in
the view of the public), that can induce you to believe that he is so
completely lost to all sense of that which is right and wrong, to all
sense of what is due to himself, as to go before a magistrate to make an
affidavit, in which he must know he was deposing to that, which at the
time he was making the deposition was absolutely false? Gentlemen, I ask
you what evidence you have upon which you are to find this noble person,
not only guilty of a foul conspiracy, but also of the still higher crime
of wilful and corrupt perjury? Gentlemen, I am quite satisfied, you will
not feel that there is any evidence in this cause, which can weigh down
the testimony which my learned friend has thought proper to put in. I
say the oath of Lord Cochrane makes the evidence offered on the other
side kick the beam; that there is nothing to put in competition with the
affidavit which my learned friend has himself given in evidence.
But, gentlemen, let us look at the narrative given in the affidavit, and
see whether there is any thing improbable in it. Lord Cochrane states,
that he had gone out on the morning of the 21st, with his uncle, not to
go into the city, but to go to a man of the name of King, who was
engaged in making for him a lamp, for which he was about to obtain a
patent; is that true, or is it false? It is true, according to all the
evidence in the cause; there is no doubt that Lord Cochrane did set out
with Mr. Cochrane Johnstone, for the purpose of going towards the city.
Did he go into the city? No one witness has shewn that he did. On the
contrary, I think it may be taken as admitted, that he never was in the
city on that day. Here then this part of the affidavit is most
unquestionably confirmed. He states, that having proceeded to the house
of this man, who was assisting him in preparing this lamp, he received a
note in which he was desired to come home; then he states, he was
informed that the person who brought the note was in the dress of an
officer; and Lord Cochrane goes on to state, that imagining it was some
officer who had just come from Spain, (and probably you may know,
gentlemen, that Lord Cochrane, who is himself serving in the navy, has a
very gallant brother at this time serving in the army in Spain, and with
respect to whom, I believe I shall shew you in evidence, that he was
exceedingly ill, and was considered to be in very great danger), he
immediately connected that officer with his brother in Spain, and he
proceeded in a hackney coach to his house, hoping for some account of
his brother in Spain.
Gentlemen, it appears that the officer turned out to be Mr. De Berenger.
Lord Cochrane then gives you an account of what Mr. De Berenger
represented to be his object in coming to his lordship's house; he says
that Mr. De Berenger had previously made applications to him to take him
out to America, for the purpose of exercising his men in small arms, and
that Mr. De Berenger renewed his application that morning to him to
take him in the Tonnant, the ship to the command of which his Lordship
was then appointed, and in which he was about to sail to America.
Gentlemen, is this true? we have the evidence of Mr. Murray, a gentleman
called on the part of the prosecution; we have the evidence of another
person, of whom I cannot speak in the same terms as I do of Mr. Murray,
for I shall by and by shew you that he is entitled to no credit, who
certainly, as far as he speaks in favour of Lord Cochrane, is entitled
to consideration; but where he speaks against Lord Cochrane, as I shall
shew you, he is entitled to no consideration, for that he has vowed he
will bring on the ruin of Lord Cochrane, in consequence of the refusal
of a loan of money. We have it in evidence, that Mr. De Berenger did
expect to go to America, under the protection of Admiral Cochrane and
Lord Cochrane; the narration in the affidavit is thus confirmed by this
evidence; the affidavit then goes on to state, that Mr. De Berenger told
Lord Cochrane, that he had left the King's Bench, and come to Lord
Cochrane for the purpose of going to America. That he, Lord Cochrane,
stated to De Berenger, that it was impossible for his lordship to take
him, that his ward room was full; and further, that De Berenger being a
foreigner, his Lordship could not take him without the consent of His
Majesty's Government; that he might go on board ship at Portsmouth; but
in the meantime he must get the permission of His Majesty's Government,
upon which his lordship says, De Berenger said he would go to the noble
Lord, whom I have the honour to see in court, to get that permission;
his affidavit then states, that De Berenger said to his lordship, I must
take a great liberty with you, for it is impossible I can go to the
first Lord of the Admiralty in the dress in which I now am; upon which
he, Lord Cochrane, not suspecting that Mr. De Berenger had been making
an improper use of the dress he had on, or his views in wishing to
change it, furnished him with a coat and hat.
Here my learned friend, Mr. Gurney, makes an observation which I am sure
he will be exceedingly sorry for having made; because he would not
intentionally, in a criminal case, prejudice the case of the defendant
by any argument that is not borne out by the facts of the case; he says,
Did Lord Cochrane think it a right thing for his lordship to do, to
furnish De Berenger with the means of escaping from his creditors?
Gentlemen, there was no such thing thought of at the time, as the
escaping from the King's Bench prison; the cloaths were to enable De
Berenger to go to the Admiralty, and to Lord Yarmouth; and it was for
the purpose of appearing before Lord Yarmouth and Lord Melville, that
this change of dress was asked for, and not for the purpose of escaping
out of the kingdom, and avoiding his creditors; whether Lord Cochrane
was wise or not in acceding to this request, it is not for us to decide
to-day; but I am sure you will feel it was straining the English law too
much, to say of a good-tempered English sailor, that he is guilty of a
conspiracy, because he yields to a request, to which a person more
hacknied in the tricks practised on them, would not have acceded. If my
learned friend could have shewn you, that all that the affidavit states,
respecting De Berenger's going to America, was the invention of Lord
Cochrane since the 21st of February, that nothing of the sort had ever
been thought of before, such proof would have falsified the affidavit.
But so far from offering any such evidence, all the evidence adduced
confirms the statement in the affidavit; and yet my learned friend still
ventures to ask you to disbelieve what Lord Cochrane has sworn, although
his oath is unopposed by any testimony, and supported by all the
testimony given in the cause.
Gentlemen, it is not my business to argue before you, that Mr. De
Berenger went that morning to Lord Cochrane, expecting to obtain leave
to go to America; it is enough for me that I satisfy you, that he
pretended that that was the object of his visit; but why did he go there
at all? Why my learned friend, Mr. Gurney, has given you the reason for
his going to some person's house before he went to his own. He has told
you, that it would have been highly imprudent, if he was Colonel De
Bourg, for him to go to his own lodgings; the Stock Exchange would have
had no difficulty in finding him out by means of the post-boys, had he
driven home. He determined therefore to make a pretence for stopping at
some other person's house; and what had passed between him and Lord
Cochrane, afforded him a pretence for going to his lordship's.
Gentlemen, bear in mind this; you are to decide this cause upon
evidence; you have no positive evidence of any thing that passed in the
house of Lord Cochrane, except that evidence which my learned friend,
Mr. Gurney, has given you from Lord Cochrane himself; you have had
evidence upon the oath of my Lord Cochrane, that whatever concealed
objects this gentleman had, the avowed object in going there, was that
which he has stated; and in which, I say again, he is completely
confirmed by all the evidence that has been offered in this cause.
Gentlemen, if it was not for this purpose--if this was not the pretence
on which Mr. De Berenger went there, he was much more intimate with Mr.
Cochrane Johnstone than he was with Lord Cochrane; why did not he go
there; Mr. Cochrane Johnstone lived only in the next street; if he went
to the one house or to the other, because of a connection between him
and these parties in a conspiracy, why happens it that he did not go to
the house of the party with whom he was most intimate.
Gentlemen, there is another circumstance you will not fail to observe;
it appears from this affidavit, and will appear from the testimony of
witnesses whom I shall call, that Lord Cochrane was sent for to his
house by Mr. De Berenger; now, in my humble judgment, that is an
extremely strong circumstance to shew, that whoever was connected in
this scheme, Mr. De Berenger could not have considered Lord Cochrane as
privy to it. If Lord Cochrane was engaged in this conspiracy, what
object could De Berenger have for sending for him back from the city,
about half past ten in the morning; why, if he and De Berenger had been
parties to this conspiracy to raise the price of stocks, Mr. De Berenger
could not want to see Lord Cochrane; why therefore was his Lordship to
be sent for out of the city, at the very time when his presence in the
city was essential to the consummation of the fraud. This therefore
shews to you, I think most clearly and satisfactorily, that De Berenger
had sent for him on the pretence that Lord Cochrane states in his
affidavit, and that Lord Cochrane was not informed of what was passing
in the city, nor was in any wise privy to it.
Gentlemen, I have stated to you, that it appears to me that every part
of the affidavit of Lord Cochrane is confirmed by the evidence which has
been given by Mr. Murray, and by all the other evidence offered in the
cause; that from all of it you may collect, that De Berenger did go
there under the pretence stated, and that he did not go there as a place
at which he was to terminate a journey which he had undertaken in
concert with Lord Cochrane and others, for the purpose of raising the
price of the funds. But knowing the evidence I have, I will not leave it
upon this evidence, for this is a case too important to the honour and
character of Lord Cochrane, for me to leave any thing undone which I
think may possibly tend to produce that verdict, which I am sure every
one of you will by and by feel rejoiced to give; I shall therefore
adduce before you other evidence confirmatory of such parts of Lord
Cochrane's affidavit as are capable of confirmation. Gentlemen, it has
been said that this affidavit is false in this; that it states, that Mr.
De Berenger when he came to Lord Cochrane's had on a green coat, whereas
it is proved by several witnesses that he had on a red one; but let me
suppose that their account as to the colour of the coat is true, and
that Lord Cochrane's account is incorrect; would such a mistake, for it
is impossible that it can be any thing but a mistake, weaken the credit
due to Lord Cochrane. Men do not commit crimes, unless impelled to the
commission of such by some strong motive; what object could Lord
Cochrane possibly have for stating that this gentleman came in one
coloured coat rather than another? Gentlemen, I think I can account for
the mistake; my Lord Cochrane made this affidavit a great many days, I
think some weeks, after the transaction had taken place; Mr. De Berenger
belonged to a corps of riflemen in this country, commanded by Lord
Yarmouth, and the proper dress of Mr. De Berenger, as a member of that
corps, was a green uniform; my Lord Cochrane had often seen Mr. De
Berenger in this green uniform. His lordship, when he made his
affidavit, recollected the circumstance of Mr. De Berenger's being
dressed in a military uniform, but there being nothing to fix on his
lordship's mind the colour of the uniform, the sort of dress in which he
had been accustomed to see Mr. De Berenger presented itself to his
lordship's mind, as the dress De Berenger wore when his lordship saw him
last. Gentlemen, I have now made all the observations that have occurred
to me on this affidavit; I cannot, however, take my leave of it, without
again intreating you to consider the circumstances under which it was
made; remember Mr. Wright's evidence, and say if any thing can more
strongly evince Lord Cochrane's consciousness of his innocence, than
the publication of this affidavit. Gentlemen, you have been told, and
truly told that Lord Cochrane is a public character. From the high
station in which he was born, and the still higher place in the eyes of
his countrymen to which his public services have raised him, his
lordship may, without indulging any blameable vanity, one day expect to
fill one of the proudest situations in the country.
Is a man so circumstanced likely to commit so sordid a crime as that
with which he is charged? No prospect of gain could hold out any
temptation to Lord Cochrane to put in hazard what he now possesses.
The public character which you have been reminded he possesses, would of
itself repel such a charge as that which is made against him, though it
were supported by much stronger evidence than has been offered in
support of this indictment.
Gentlemen, I come now to the case of Mr. Cochrane Johnstone; and with
respect to him, I find that the charge is attempted to be made out
against him upon these grounds; first of all, that he was a very great
speculator in the funds. Gentlemen, I charge again upon the Stock
Exchange the same unfair mode of proceeding, with respect to Mr.
Cochrane Johnstone, which they pursued in the case of Lord Cochrane:
with respect to Mr. Cochrane Johnstone, they take up the case, I think,
on the 8th, but my learned friend applied his observations principally
to the 12th of February. Now, gentlemen, so far from that being a fair
statement of the transaction, it appears most clearly, that Mr. Cochrane
Johnstone had been speculating in the funds, and speculating as
desperately from the month of November, as he was in this month of
February. But another thing is pressed against Mr. Cochrane Johnstone,
the largeness of his balance on the 21st of February, which is stated to
be £.420,000; now, gentlemen, I am astonished that the Stock Exchange
should instruct my learned friend to say any thing to you upon that
subject, producing the account which they have produced; if Mr. Cochrane
Johnstone had never had so large a balance before, there would have been
something in the argument; but cast your eye up that page, and you will
find that Mr. Cochrane Johnstone, who is supposed to have been desirous
of getting a quantity of stock into his possession, to sell on the 21st
of February, had on the 14th £.615,000; so that this gentleman, who is
supposed by the prosecutor's case, to have meditated a fraud by the sale
of stock on the 21st, is found reducing his balance immediately before
that day from £.615,000 to £.420,000; to contrive and carry into
execution such a trick as that which has been practised, must have taken
many days. It certainly must have been in contemplation as early as the
14th, how then can the prosecutors account for Mr. Johnstone's conduct
in selling between the 14th and 21st, if Mr. Cochrane was one of the
persons who had been contriving to put into his possession all the stock
that he could purchase, for the purpose of selling it on the 21st; this
is so entirely inconsistent with what must have been the view of a man
engaged in a transaction of this sort, that a view of this paper is
sufficient to show that there could not have been such an intention;
look at this paper, and you will see what he was in the habit of
selling; look at his daily sales, and you will find that he began
selling; on the 9th that he sold £.10,000, on the 10th £.105,000, on the
11th £.35,000, on the 14th £.100,000, on the 16th £.10,000, on the 17th
£.19,500, and on the 19th, this gentleman, who is supposed to have
meditated such a fraud as this on the Monday following, sells out
£.18,000. Let any man in his senses, any man not carried away with the
feelings which agitate the Stock Exchange, in consequence of their
having been outwitted; for these sharps, who are called flats by one of
the witnesses, did not like to be taken in by other sharps. Let any
dispassionate man look at this paper, and say whether Mr. Johnstone
could have contemplated the rise in the funds that took place on the
21st.
Gentlemen, it is said that he made a very large profit; that will not
prove much, because he was making this sort of profit on several
occasions before. What was the general habit of his business, as to the
Stock Exchange? Why, that he was content with a very small profit,
constantly telling his brokers, that whenever they could get a profit
they were to sell, and he was acting in the very same way, until the day
on which this transaction took place.
Gentlemen, I have also to observe particularly, that though he did go
into the city on the Monday morning, he was in the habit of going every
morning; he did not get there any earlier on that day than on any
previous day, and so far from his being concerned in the sale of this
stock, a very considerable quantity (Hichens speaks to £.50,000) had
been sold before he or any one of these gentlemen came there; how is it
possible therefore to say, from the circumstance of his being possessed
of this stock, and selling it, that he was implicated in this
transaction; on the contrary, I ask you, looking at the whole of this
evidence, ask yourselves this plain question, whether he was not selling
on the 21st upon the same principles as he had been selling to an
immense amount on the preceding days on which sales had been had?
Gentlemen, with respect to profit, I believe that will appear somewhat
different from what it has been stated, if you cast up the amount of
profits. We are sought to be charged with a fraud. Why? because these
three gentlemen all together made a sum of £.10,000, which, however,
these gentlemen of the Stock Exchange have put their hands upon, and
nobody is likely to get at, as they state it; I believe the whole did
not amount to more than £.6,000, but the prosecutors state it at
£.10,000, that is to be divided among the three, another person taking a
share too; but if profits have any thing to do with it, you will find
the sales made by Mr. Cochrane Johnstone alone on the 17th, produced a
profit of above £.8,000; how, therefore, can you presume, merely from
the circumstance of the profits made on the 21st, that he was connected
with this conspiracy? Gentlemen, he was near the Stock Exchange, and if
in the secret, he certainly would have availed himself of the practice
to which I have alluded, namely, selling at a favourable moment, stock
he was not in the possession of; all the brokers have been examined, and
not one of them has been able to tell you of one single shilling stock
sold by these gentlemen, or either of them, of which they were not
actually in the possession. It is impossible, if he is so rapacious a
man as to engage in a speculation to ruin his fortune and his character,
to account for his not taking advantage of such a state of things.
Gentlemen, next to the profit made by Mr. Cochrane Johnstone, is his
having been engaged to take a house for Mr. Fearn; and here I was led to
expect that my learned friend would falsify the statement made upon oath
by Mr. Cochrane Johnstone; he was to prove, that what he had sworn to,
or offered to swear to, of his not having taken the house was untrue; it
is enough for me to say, that that is not proved; it is an unfounded
statement of my learned friend, proceeding from misinstructions which
have been given to him by his clients; but on the subject of taking this
house, my learned friend must have felt the distress of his case when he
pressed it upon you.--Why, gentlemen, what are you desired to find? not
that these parties were generally engaged in stock-jobbing transactions;
not that these parties had conceived an intention of dealing for a
continuance in the stocks; but that they had planned a scheme by which,
at one stroke, they were to cheat all persons who came to engage with
them in the Stock Exchange; the fraud was to be over in a single day;
they wanted no office for that; that could be wanted only for the
purpose of carrying on that scheme of stock-jobbing, which these persons
began in November, and have actually continued long subsequent to the
21st of February; but does it not appear that my learned friend is wrong
in his instructions. According to the papers we have seen (most
improperly circulated) a house was taken for Mr. Fearn, without his
knowing any thing about it; and Mr. Fearn found himself seated in the
office, without knowing how he came there.--Does that turn out to be the
fact? No; it turns out that Mr. Butt had an office before, which he did
not like; Mr. Cochrane Johnstone took another office for Mr. Butt; Mr.
Fearn came to look at Mr. Butt's office, liked it, and it was kept for
him. In consequence of this, this office, which you are told was taken
by Mr. Cochrane Johnstone for Mr. Fearn, without his knowledge, was
taken by Mr. Fearn for himself, because he found the house to be a
convenient one; and it was suggested to him by his friends, that such a
house would be extremely convenient to them. Upon this, Mr. Butt agreed
to give up one of the rooms he had, and allowed Mr. Fearn to take
possession of that room. Gentlemen, there is another thing which proves
that the taking of this house had nothing to do with this particular
day; you find, that Mr. Fearn not only continued to possess these rooms,
sticking up his name there, but that he liked them so well, he has since
taken the whole house, and now continues to occupy it.
Gentlemen, what is the next head of evidence pressed against Mr.
Cochrane Johnstone? It is, that Mr. Cochrane Johnstone called, and left
a letter on Saturday the 26th, at the lodgings of Mr. De Berenger.
Gentlemen, in the first place, I have to observe, that it was but very
loosely and unsatisfactorily proved, that Mr. Cochrane Johnstone was at
the house of Mr. De Berenger on that day; but I will admit it, for that
is the best way, perhaps. I never have denied, that Mr. De Berenger was
acquainted with Mr. Cochrane Johnstone; I never denied that they were in
the habit of dining together, and if they were, where was the harm of
his leaving a note at the house of Mr. De Berenger.
Gentlemen, I did expect, as there has been so much activity (an activity
by the bye that has gone beyond the proper line) in seizing the papers
of this gentleman, that we should have seen the letter that Mr.
Johnstone left at De Berenger's; but no such letter is produced, and
although the prosecutors have got possession of every paper belonging to
De Berenger, not a scrap of paper has been produced in the handwriting
of my clients; all that is proved is, that Mr. Cochrane Johnstone called
upon De Berenger, as one acquaintance would call upon another.
Gentlemen, God forbid, that because he does so, it should be conceived
that he is a party with Mr. De Berenger in this scheme, if he has been
concerned in it.
Gentlemen, the next attempt is this, and a miserable one it is; all
possible means have been had recourse to, for making it out; for not
only has Mr. Basil Cochrane's servant been subpoenaed by the Stock
Exchange, to prove who are the persons dining at his house, but the
females of this family have been subpoenaed to this place, and kept
here for the purpose of proving the same facts which might have been
admitted at any hour of the day, and not only subpoenaed, but that
subpoena sent by a person whose presence was the most insulting of any
one who could have been selected in this town, and who could have been
selected for no other purpose than that of offering insult to the
members of this family.
Gentlemen, the next circumstance in this case is, that some money was
found in the chest of Mr. De Berenger, which certainly had passed
through the hands of Mr. Cochrane Johnstone. Gentlemen, I think you have
a clue already given you, by which you can account how De Berenger
became possessed of Mr. Johnstone's money. But I shall offer other
evidence on this part of the case; I will shew most satisfactorily how
that money came into De Berenger's hands. You have had it proved
already, that Mr. De Berenger is an extremely ingenious artist; you have
had it proved, that he was engaged by Mr. Cochrane Johnstone, for the
purpose of planning a new Ranelagh, to be called Vittoria, near Alsop's
Buildings. Now, I will prove to you, by a witness I will call, that part
of this money was paid by Mr. Cochrane Johnstone to De Berenger, for the
plans he had drawn for Mr. Johnstone of the projected garden; and the
remainder was lent to Mr. De Berenger on his note of hand, by Mr.
Johnstone. Fifty pounds was advanced in September last, when the plans
of the garden were begun; and £.200 more was paid in the month of
February, the 25th or 26th of February. Mr. De Berenger, at the time he
was paid for his plans, stated that his distresses were such, that
though what he had received was all he had a right to ask of Mr.
Cochrane Johnstone, in satisfaction of that which was due to him for
what he had done at Vittoria Gardens, yet he hoped Mr. Cochrane
Johnstone would advance him £.200 more, by way of loan. Mr. Cochrane
Johnstone was exceedingly desirous of relieving the distresses of Mr. De
Berenger; but he would not do it, unless he found he would be
effectually relieved by the proposed loan. I will prove to you,
therefore, that he took same days to consider of it; and on being
satisfied on that point, he did lend De Berenger another £.200; and this
money was paid in that manner to Mr. De Berenger and Mr. De Berenger has
given his note for it, payable in six months.
Gentlemen, my learned friend told you, that bank-notes were good things
to trace crimes; certainly they are. The finding of the notes puts me to
give some account of them. I will do that by the evidence I have stated;
and I have a foundation laid for the proof that I shall offer, by the
evidence produced already in the cause. I have seen the plans; you shall
see them; and after you have seen them, if you are called upon by the
evidence produced in this cause to convict De Berenger, which I hope you
will not be, you will lament that you are bound to convict a man whom
you will find to be possessed of so much ingenuity and taste. You will
find that the sum paid is but a small remuneration for the attention he
had paid, and the skill he had bestowed, in the service of Mr. Cochrane
Johnstone; but whether he was well or ill paid is not the question; the
payment of the money, I admit, renders some explanation necessary, and I
will give it to you.
Gentlemen, I come now to the case of Mr. Butt; and with respect to him
the case is very much like that of Mr. Cochrane Johnstone, therefore I
shall have occasion to trouble you with but few observations. He is
found to have had a large balance on the 21st of February, but he had as
large a one before; he sold on this day, but he had sold a much before.
He made only £.1,300 on that day; he had made much more on other days;
there is not an atom of evidence connecting him with Mr. De Berenger;
but the taking of the office applies to him as well as to Mr. Cochrane
Johnstone, and also the circumstance of some notes being traced into his
hands. Here, gentlemen, I have a difficulty with respect to Mr. Butt,
which I cannot explain by evidence so well as I can the transactions of
Mr. Cochrane Johnstone; but I am persuaded you will feel that I can, by
observation, as completely relieve him from the effect of those notes
being in the hands of Mr. De Berenger, as I have Mr. Cochrane Johnstone.
I will shew you, by the testimony I shall call, that this debt
discharged to Mr. De Berenger, or the sum advanced by way of loan, was
principally paid in one pound notes; if so, that will account for the
whole of these one pound notes; and as to its going through the hands of
Mr. Butt instead of Mr. Cochrane Johnstone, is it any thing wonderful,
when you find him acting as a sort of agent for Mr. Cochrane Johnstone,
that they should have passed through his hands? But it will appear, that
all the notes found in the trunk of Mr. De Berenger got into that trunk,
either through the loan or payment of Mr. Cochrane Johnstone. One of the
witnesses called for the prosecution has proved the payment by Mr.
Cochrane Johnstone of the sum of £.200; but whether that relieves him
from the whole or not, are you to say a man is guilty of a conspiracy on
such a ground as this? I cannot call these persons for each other; being
joined in the indictment, I am deprived of that opportunity. I do not
find fault with the prosecutors so doing; but you must be content, under
these circumstances, with the best explanation I can offer to you, with
respect to that which appears against this gentleman. I shall offer you
the best evidence the nature of the case admits; and I cannot do more.
If direct evidence cannot be offered, you will not expect it, as my
learned friend says on the part of the prosecution, I say on the part of
the defendants, and much more strongly. If you see my clients offer you
the best evidence the nature of the case admits of, with that I am sure
you will be content.
Gentlemen, with respect to Mr. Butt, there is not a tittle of evidence
bringing him into connection with Mr. De Berenger; no man has proved
that ever they were seen in the same room; no person has ever brought
them into connection together; and it is merely because Mr. Butt is a
great purchaser of stock, and some of Mr. Butt's money is found passing
through the hands of Mr. Cochrane Johnstone into the hands of Mr. De
Berenger, that you are desired to find them all connected together in
this conspiracy.
Gentlemen, I have divided these three persons cases; but there is an
observation common to all the cases, which I feel it my duty to make to
you. My learned friend said, he could not put them in the same room
together; but I think if these persons were conspirators, he would have
found no difficulty in bringing them nearer together than he has done. I
think he might have shewn, that about the Stock Exchange, or at some
place or other, they were at some time or other all acting together; we
have eight or nine different persons, Mr. de Berenger, Mr. Cochrane
Johnstone, Mr. Butt, Lord Cochrane, Mr. Sandom, Mr. Holloway, Mr. Lyte,
Mr. M'Rae, all charged as co-conspirators; did any man ever see all
these persons together; between a great number of them there is not the
least proof of connection; you are desired to find a conspiracy
proceeding upon this supposition, that all these parties were acting in
concert; and yet between two of the parties, there is no more connection
proved to have existed, than there is between you and me, or you and any
one of these parties.
Gentlemen, this observation I should have a right to make on any case of
a conspiracy. I should have a right to say, it is too dangerous to say
these persons were engaged together in a conspiracy; but, Gentlemen,
permit me to call your attention to a particular fact proved in this
case which negatives the connection of my clients in this
conspiracy;--you have two persons who are stated to have made a
confession of their guilt; one of these gentlemen appears to have felt
the impropriety of his conduct, and in a moment when he had recollected
himself, and recollected the offence of which he had been guilty, had
gone with a mind disposed to make the fullest compensation that he could
to those whom he had injured, and to state all that he knew of the
transaction; he goes and he states, that having heard that a Mr. M'Rae
was willing to give up the persons who were parties to this conspiracy,
on the payment of a large sum; he considers it improper, that the Stock
Exchange should be plundered of this large sum, by the extortion of Mr.
M'Rae; and therefore, to prevent their paying this large sum to Mr.
M'Rae, he (Holloway) goes to the Stock Exchange, and tells them all that
Mr. M'Rae could tell them; and what does he say; it would have been
enough if he had not said that Mr. Cochrane Johnstone, Lord Cochrane,
Mr. Butt and himself, were connected; but he says, in the most distinct
terms, that he knew nothing of Lord Cochrane, Mr. Johnstone, or Mr.
Butt. The way in which the case is put to you, is, that all these
parties were acting altogether; if so, one of the actors must know who
were the other persons that were engaged; and Mr. Holloway, who was an
actor, declares that he knew nothing of either Mr. Cochrane Johnstone,
Mr. Butt, or Lord Cochrane; but Lyte, who was present when Holloway made
this declaration, does not contradict; he acknowledges his own guilt,
and asks for mercy, but he does not attempt to inculpate my clients. I
ask, are you against evidence; against the evidence offered by the
prosecutors, for this evidence forms a part of the prosecutors case, to
say that these persons were connected with the conspiracy.
Gentlemen, if Mr. Holloway could, at the time he was disposed to make
confession of his own guilt, have gone the length of saying, I can prove
that Lord Cochrane is a conspirator, I can prove that Mr. Cochrane
Johnstone is a conspirator, he would not have been here to-day to
answer for his crime; he would not only have been paid, but most amply
rewarded, if he could have given any testimony by which the conviction
of my clients could have been obtained.
Gentlemen, there is another circumstance I must take leave to press upon
you. It seems to me that a conspiracy of this sort could never be
carried into effect without some broker being concerned in it. If my
clients had been concerned, they would certainly have consulted some of
the brokers who have been examined. It is impossible that they could
have kept the secret from these brokers; and yet I think it is perfectly
clear that they knew nothing of it. It is not pretended by the
prosecutors that they had, and from the fairness with which they have
given their evidence, it is but just to acquit them of any participation
in it.
Gentlemen, I beg to be understood in what I am now about to say, as not
intending to impute any thing wrong to Government or to the Stock
Exchange; though I think I may venture to say, that what has been done
as to the breaking open the trunk, and the searching for these papers,
cannot be justified by law; for I know of no law that justifies the
Government of the country, or any magistrate whatever, in breaking open
trunks and taking away papers on suspicion of a misdemeanor; yet I am
not disposed to impute blame to public officers, when impelled by proper
and adequate motives, they go a little beyond the strict letter of the
law; but where such powers have been exerted to detect guilt, if guilt
had existed, it could not have escaped detection. There has been a
degree of activity exercised to bring home the guilt to these persons,
which I never saw on any former occasions; liberties have been taken
which I never saw in a case of misdemeanor before. All De Berenger's
papers have been ransacked and taken from him, at a moment when he could
have no idea that they would be taken, and therefore could not have
destroyed or secreted any, and yet not a single paper is found (but the
bank notes), not a single letter; the parties to the conspiracy are
never brought together in connection, and it does not appear that there
has been any communication by letter. Here seems to be a conspiracy
without any possible means of conspiring. I do not see how men are to
conspire without communicating with each other, and I am not aware of
any other modes of communication than conversation or writing; yet you
are desired to find several persons guilty of a conspiracy, without any
communication having been proved to have been had between them, and
without any writing of any sort having been found.
Gentlemen, there is one other circumstance to which I would wish to
allude; not that it concerns my clients, for I am persuaded his lordship
will tell you the evidence given by that extraordinary man, Le Marchant,
does not bear upon either of my clients, because though where several
engage in a conspiracy, you may offer evidence that will affect any one
of them, yet the declarations of one cannot affect another; now Mr. Le
Marchant was never in the company of Lord Cochrane, he never heard one
word that Lord Cochrane said; all that he speaks of are conversations
with Mr. De Berenger, which may be evidence against Mr. De Berenger, but
in point of law or common sense are no evidence against Lord Cochrane;
but I will dispose of this man for the sake of the country, that he may
never be sent out of the country in any office. I will shew you that he
is a man utterly unworthy of credit, for I will prove to you by his own
letters that he comes forward to-day, because Lord Cochrane has refused
to lend him money; gentlemen, I have a letter of his, in which he
desires to have an interview with Lord Cochrane; he has admitted his own
hand-writing to the letters, which I will by and by put in. Lord
Cochrane very properly gives no answer to the first letter desiring an
interview; on the 7th of April 1814, the first being on the 6th April;
on the very next day, Lord Cochrane not answering him, he writes an
impertinent letter to Lord Cochrane, which you shall hear read; but I
produce it for the purpose of introducing the letter which he admits
Lord Cochrane wrote to him, and his answer, from which I argue Lord
Cochrane's innocence, and this man's infamy. If Lord Cochrane had felt
himself a guilty man, he would not have denied this man when he
suggested that he could be of use to him in this cause, but you will
find from Lord Cochrane's letter, he says, "I should have hoped, that
circumstanced as I am, and attacked by scoundrels of all descriptions,
that a gentleman of your understanding might have discovered some better
reason than that of silent contempt."
_Mr. Gurney._ My learned friend has not yet proved that letter.
_Mr. Serjeant Best._ I proved that he had the original in his hand; this
is the letter of the guilty Lord Cochrane to the innocent Mr. Le
Marchant, in answer to the two applications for an interview. "Sir, I
should have hoped, circumstanced as I am, and attacked by scoundrels of
all descriptions, that a gentleman of your understanding might have
discovered some better reason than that of silent contempt;" that is,
what he complains of to Lord Cochrane in his second letter, "to account
for the delay of a few hours in answering a note; the more particularly
as your note of the 6th led me to conclude, that the information offered
to me, was meant as a mark of civility and attention, and was not on a
subject in which you felt any personal interest." A more prudent letter
than that, I defy any man in Lord Cochrane's situation to write. A
guilty man catches at any twig, but Lord Cochrane does not answer this
gentleman at first, and when pressed by a second letter, he tells him
the reason; it is unsafe you and I should meet, I cannot trust you, I
am surrounded by scoundrels who are attempting to charge upon me a crime
of which I know I am innocent.
Gentlemen, having stated to you in what light this letter shews Lord
Cochrane, I beg to read you the last letter of this man, who has offered
his evidence to-day; and I will then ask you, whether upon the testimony
of such a man as this, you will convict one of the most suspicious
characters that ever was produced in a court of justice; whether you
would in any cause, of ever so trifling importance, give the least
consideration to it. "I ask your lordship's pardon of my letter of
yesterday, and which was written under the supposition of being treated
with silent contempt;" so that this gentlemen put the true construction
upon it, certainly. "To convince you of the high respect I have for your
lordship, I have the honour to enclose to you a statement of what I know
relative to the 21st February, and I also now declare solemnly, that no
power or consideration shall ever induce me to come forward as an
evidence against you, and that all I know on the subject shall be buried
for ever in oblivion. Thus much I hope will convince you I am more your
friend than an enemy, as my testimony, corroborated by the two officers,
would be of great import, not (believe me) that I myself doubt in
anywise your lordship's affidavit; but De Berenger's conversation with
me, would, to your enemies be positive proof. As for my part, I now
consider all that man told me to be diabolically false;" and yet he has
to-day come forward to tell you the truth, and the whole truth; he has
told you what De Berenger said, and has not stated the qualification,
that he did not believe one word of it. "If my conduct meets your
approbation, can I ask for a reciprocal favour, as a temporary loan, on
security being given; I am just appointed to a situation of about
£.1,200 a year, but, for the moment, am in the greatest distress, with
a large family; you can without risk, and have the means to relieve us,
and, I believe, the will of doing good. Necessity has driven me to ask
your lordship this favour; whether granted or not, be assured of my
keeping my oath now pledged, of secrecy." He has kept that oath, I dare
say, as well as he has kept this; he went and gave information, and
comes forward to-day to give evidence; you remember how he fenced with
the evidence. I ask you, whether you believe, after I have read this,
one word of what he has said. I ask you, whether this is not taking
advantage of the situation of this noble lord. I am sorry to see that a
man can act so scandalous a part, who has the honour of being appointed
to a situation of £.1,200 a year; but I am quite satisfied the moment
the Government know this, that suspension which does exist, will be
continued, and that this man will never be sent to the office to which
he was destined. I am quite satisfied, that when this letter is read,
you will feel, that even as it respects Mr. De Berenger, for it is
applicable only to him, his evidence can have no influence in any court
of justice whatever, for that it comes from a man who, in the clearest
and most unequivocal manner, declares himself most infamous, and most
unworthy of credit.
Gentlemen, I am conscious that fatigued as I felt myself, when I rose to
address you, after having been thirteen or fourteen hours in court, I
have very imperfectly discharged the duty which I owed my clients; but,
gentlemen, I hope they will not suffer, from not having their case
presented to you as it ought to have been. Gentlemen, I do not press
upon you the considerations which, in criminal cases, are often pressed,
and with propriety pressed, upon juries. I do not ask you to take this
case in a merciful point of view; I do not press upon you the common
observation, to temper your justice with mercy. I ask you to look at
this case fairly and impartially; if the guilt of these gentlemen be
made out, so that you, upon your oaths, must declare them guilty, say
so, dreadful as will be the consequence to all these parties; but unless
their guilt is made out, if there be nothing but suspicion, you will
not, upon your oaths, say that suspicion is conviction.
Gentlemen, you will recollect the situations of life in which all these
men are; they have all up to this moment been the best possible
characters, two of them are persons of very high and distinguished
situations in life, members of a very noble family; and with respect to
one of them, he has reflected back on a long and noble line of
ancestors, more glory than he has received from them; and it would be
the most painful moment of my life, if I should to-night find that that
wreath of laurel which a life of danger and honour has planted round his
brows, should in a moment be blasted by your verdict.