MR. PARK.

May it please your Lordship;

Gentlemen of the Jury,

If my learned friend, at the close of his address to you, thought it

necessary to make an apology for the fatigue which he had endured in the

course of this day, and during his address to you; it becomes much more

necessary for me to make such an apology, when it is now sixteen hours

and a half since I left my own dwelling. Gentlemen, notwithstanding

that, I have a very serious and important duty to discharge to the

person who now sits by me, and I have no difficulty in calling upon you,

in the most serious manner, fatigued and exhausted as you may be, for

your attention; you must not permit, I take the liberty of saying, as

you regard the oath you have taken, you must not permit that fatigue to

disable you from attention to the statement and the evidence that are to

be laid before you.

Gentlemen, the case has become an extremely serious and a most important

one; for the gentlemen for whom my learned friend the Serjeant has

addressed you, I have nothing to say; they have been well and ably

defended; but I am to address you on behalf of a gentleman totally

unknown to me till this day, when I saw him in Court. He is represented

to me as a gentleman of very high descent, and though he has been

unfortunate in his pecuniary circumstances, he has been proved, before

you to-day, to be man of very considerable attainments, and of high and

literary character; it is therefore your duty, and I know it is a duty

you will honestly and faithfully discharge, not to allow what my learned

friend cautioned you well against, but immediately fell into the very

same course himself; not to allow any thing like prejudice to bias any

of your minds.

Gentlemen, I am no flatterer of persons who sit in your place; and I

have no difficulty in telling you twelve gentlemen, that, though I have

no doubt you are honorable men, you cannot have lived in this city, in

which you are all merchants, for the last two months of your lives,

without having every hour of the day, and at every meal at which you sat

down, had your ears assailed by accounts of this transaction, and there

is no one, however honourable he may be, who can prevent his mind being

biassed by circumstances stated in common conversation. Gentlemen, I

only know this matter publicly; but I declare one could hardly go into

any company, where the discourse has not been turned upon this very

circumstance we are now discussing; how difficult is it then for you to

recollect, that you are not to decide upon any thing you heard before

you came into that box, but upon the evidence produced before you. But,

did my learned friend himself follow that course which he prescribed to

you? Did he embark no prejudice into this matter? My learned friend will

give me leave to say, that I own it is quite new to me, that in

discussing criminal matters, the counsel for the prosecution are to

argue it and labour it as they would a cause between party and party:--I

dare say I have been extremely faulty in that respect, but having been

engaged in criminal prosecutions, chiefly in the service of His Majesty,

I never thought myself at liberty so to treat criminal prosecutions. I

have generally acted on the opposite scheme, and mean, till corrected,

so to continue to act; but at all events, I am surprised that my learned

friend, with whose good nature in private life we are all acquainted,

should have introduced before you, that which I say my learned friend's

great experience in courts of justice told him, before he pronounced it,

he had no right to read in evidence before you. I do not speak lightly

of this; you will remember we had an affidavit, supposed to have been

made by William Smith, read verbatim from some pamphlet my learned

friend had in his hand; he knew perfectly well that it could not be

given in evidence; if William Smith was called as a witness, undoubtedly

my learned friend might ask him, whether he had not sworn the contrary

at another time; but it will be for my learned friend to explain to you,

under what rule it was, that he was at liberty to read such a document

as a part of his speech, which, by the rules of law, could not be

received in evidence in this place.

Gentlemen, there was another circumstance which my learned friend has

introduced to prejudice this case; and unless I have deceived myself, or

my ears have deceived me, I have heard no such evidence given in the

cause, as my learned friend stated; a stronger statement to prejudice

could hardly be made in a case of this sort; but I heard no such

question put to Wood, the messenger, and I listened with all the

attention I could to his examination.--My learned friend stated, that

Mr. De Berenger had been extremely anxious to get back into his hands

the identical notes; that no other notes would serve him; that he must

have those notes, and those only delivered back. Was this stated without

any reason by my learned friend? Certainly not; it would have been, if

the fact had corresponded with the statement, an extremely strong

argument on the part of my learned friend against this gentleman for

whom I am counsel. But my learned friend, and his learned coadjutors,

never put to any witness, at any one period of this cause, the question,

whether Mr. De Berenger made any such application to their knowledge?

and all this is a gratuitous statement of my learned friend, but a

statement that went to prejudice, or was intended to prejudice, your

minds upon the subject, and it undoubtedly was very important.

Gentlemen, this may have been said in places unknown to me; it may have

been said in newspapers for aught I know to the contrary; but, thank

God, I never read newspapers with that attention some gentlemen do, for

I think it is a great waste of time. If men are in public situation,

they must read them; but I have heard no statement in evidence of that

circumstance, which my learned friend Mr. Gurney so much relied upon,

and so much reasoned upon in his statement to you.

Gentlemen, it was also said, that there had been publications in this

case; I do not know by whom those publications have taken place. There

was some evidence given by Mr. Richardson, of a publication by Mr. Butt;

that I suppose my learned friend has seen; I have not; but I do not go

along with my learned friend in this; I do not agree, that these are the

necessary consequences of a free press; I have always been of opinion,

and always shall, because it is firmly rooted in my mind, that all

previous publications on one side or the other, tending to inflame the

minds of the Jury, who are to try questions between the King and his

subjects, or between party and party, on whatever side they may be

published, are most highly and extremely improper. I think it is a

disgrace, that the press of this country has engendered such an avidity

in the public mind to have these things detailed to them; that they

indulge it to a degree subversive of all justice. Hardly a case has

happened within our own observation of late years, that the whole of the

case has not been detailed before it came to trial, so that it is

impossible but that the minds of the jurymen (and men cannot divine

whether they shall be jurymen or not) should receive a bias upon this

subject; but it is very hard that all the obloquy which such

publications merit, should be thrown upon the defendants. Did that

self-constituted Committee of the Stock Exchange, of which I shall speak

much more plainly by and by, and tell you what I think of that

committee; did that self-constituted Committee of the Stock Exchange,

who have brought forward this as a charge against the defendants, make

no publication; did they not placard on the doors of their Stock

Exchange, the names of these gentlemen, members of the legislature, and

persons standing so high in the country? Why did they set so infamous an

example? I admit to follow it was bad; but to set it, I insist, was much

worse.

Gentlemen, whatever blame may have attached upon some of the defendants,

if they have made these publications, my client, Mr. De Berenger, is not

implicated in any such transactions. Those who have published have only

followed the example set them by the prosecutors on this occasion.

Gentlemen, there are certain rules of evidence on subjects of this

nature, with which I am sure you are in a great degree acquainted, but

upon which you will hear more from his Lordship by and by. It is quite

clear that no declarations of one party, though he may be indicted with

the others, can be evidence against the other defendants, unless they be

present at that declaration. My learned friend, the Serjeant, has so

fully gone through the general nature of the case, that it would be

impertinent in me to do it; but I shall observe such things as occur to

me, on the different species of proof on the part of the prosecution,

and I think I shall most decidedly convince you, that even as the case

stands, if it was not to be met by the evidence by which it will be met,

it would be impossible for you to convict any of these parties, for whom

my learned friend and myself are counsel.

Gentlemen, I will presently come to the evidence by which Mr. De

Berenger is supposed to be traced from Dover to London; but the great

point upon which my learned friend relied, as affecting him after he

came to London, was the contradictory statement, as it is supposed, of

Lord Cochrane in his affidavit. Gentlemen, first, upon the subject of

what are called voluntary affidavits. It is extremely absurd in

magistrates ever to take them; no man who knows the law, if he knew he

was taking a mere voluntary affidavit, would swear the person before

him; but as far as the magistrates are concerned, it is impossible from

the nature of the thing, that they should know whether they are

voluntary affidavits or not, for there is a great part of the business

of magistrates which does not depend upon the hearing of parties, and

unless they were to read every affidavit through, which would be to

impose a great burthen upon them, they must sometimes swear a party to a

voluntary affidavit.

But, Gentlemen, let us look to Lord Cochrane's situation in this matter.

I will suppose that Lord Cochrane knew he was not liable to the pains

and penalties of perjury by law; but is Lord Cochrane so reduced in the

scale of society by any thing that has yet appeared before you, that

you will say he has not only joined in committing the fraud in this

conspiracy charged, but that he is a person wholly unworthy of credit,

and who, though he may not be subjected to the penalties of perjury, is

lost to all sense of duty, so that he would, because he could not be

prosecuted at law for the perjury, put his name to a direct and absolute

falsehood. I believe no man would say of Lord Cochrane, that he had so

utterly thrown off all regard to religion, to the sanction of an oath,

properly so called, and to the responsibility he stands under in

conscience, as that he would go before a magistrate and make an

affidavit, because he could not be prosecuted. I think the supposition

is so shocking and so degradatory to him as a man, an officer and a

christian, that you will not come to that conclusion. That Lord Cochrane

is a brave man, that he has served his country well, no man will deny.

Does Mr. Baily then, do the three other brokers, who demurred to the

question put to them as to time bargains; do all this mass of people,

constituting the Stock Exchange, now standing within the sound of my

voice, mean to say, that because Lord Cochrane has acted so improperly

(for I so consider it) as to enter into a time-bargain, therefore he is

not to be believed upon his oath? If so, Gentlemen, the Stock Exchange

and its doors must be shut up for ever; and the great men who stalk

about as the self-constituted Committee of the Stock Exchange, must not

have any thing to do in future, because time-bargains are their daily

bread; they are at that species of traffic daily, conducting themselves

in a manner, whether they like it or not, I say, is most highly

disgraceful.

Gentlemen, is Lord Cochrane to be believed or not? have you any ground

for saying, that this noble Lord has been guilty, not of perjury in the

common sense of the word, but of perjury of a much higher kind, in my

view, for which he must be accountable, for which he knows he must be

accountable, if he has sworn that which he knows to be false, and which

he cannot have done without being one of the most worthless men in the

world. Gentlemen, what has he said? and I beg your particular attention

to it, because the evidence of the brokers will not tally with the

statement at all; he has sworn that he breakfasted with his uncle, Mr.

Cochrane Johnstone, in Cumberland place, which is at a considerable

distance (whatever my learned friend may suppose about it) from

Green-street Grosvenor-square; it is on the other side, I believe, of

the Oxford Road, and near the top of it. It is proved that he

breakfasted with him, for Crain's evidence is, that when he set down Mr.

De Berenger at the door, the answer was, that he was gone to Cumberland

Place. What does Lord Cochrane state; that he went with his uncle in a

hackney coach, which took him into the city at the hour of ten in the

morning. I beg his lordship's particular attention to that part of the

affidavit. Now, Gentlemen, when is it that these time-bargains are

supposed to have been made, in consequence of news which it is alleged

Mr. De Berenger brought. It is sworn that they were made before eleven

o'clock in the day. Why, Gentlemen, we are forgetting distances. If Lord

Cochrane was set down at Snow-hill at ten in the morning, if he

afterwards came back, as he did, to Green-street Grosvenor-square, being

sent for by his servant or Mr. De Berenger, he could not be back before

half-past ten or nearly eleven, and I defy all mankind to state how he

could after that have communicated to the Stock Exchange, the news this

gentleman was supposed to be dispersing abroad, so as to affect the

price of stocks. The whole of the transaction took place before eleven

in the day, and he was not sent for from Snow-hill till after ten. Why,

if this gentleman had been a conspirator with Lord Cochrane, when he

heard that Lord Cochrane was gone to Snow-hill, he would have gone on

to Snow-hill, then they would have been near the purlieus of that place

where all this infamy is daily transacting; instead of that Lord

Cochrane comes back. It is too ridiculous and absurd, says my learned

friend, to suppose that Lord Cochrane should be coming back to see an

officer. I hope, gentlemen, that will not appear to you to be absurd

under the circumstances he has sworn to. I can hardly conceive a motive

stronger on the mind of a brave man and a good officer for going back,

than that stated by him. He was not acquainted with Mr. De Berenger's

hand-writing, though Mr. Cochrane Johnstone was. Having a brother in

Spain, he expected that he should receive accounts of him from a brother

officer; is that an unnatural sensation? I trust it will never be so in

the bosom of any one to whom I am addressing myself; it is one of the

most natural that can be stated, and under that impression he goes back,

and holds the conversation which has been stated.

Gentlemen, it is stated to you by my learned friend, the Serjeant, and

he has better means of proving these things than I have, that the

grounds upon which this matter rests, as far as Lord Cochrane is

concerned, will be fully explained. The gentleman for whom I appear was,

at that time, under duress on account of debt; and Mr. Tahourdin, now

his attorney, was his security for that debt. He was a distressed man,

and was desirous of going out to Sir Alexander Cochrane, who had had

conversation with this gentleman, whose bravery and whose character

nobody will dispute; and it will be proved to you Sir Alexander Cochrane

had made application to the noble lord near his lordship, to enable him

to go out to America; but he could not go, because His Majesty's

ministers thought (and I dare say most wisely) that it was not fit to

give him the rank which he claimed, being a foreigner by birth, though

he had been long serving in this country with the approbation of His

Majesty's Government. He was a member of the corp of sharp shooters, of

which Lord Yarmouth or the Duke of Cumberland was the colonel. He was

the adjutant of that regiment, and he had that military garb and dress

which might have been sworn to by Lord Cochrane in the way my learned

friend supposes, or in consequence of the facts which I have to state. I

do not know why I am placed here at all, if I am to take for granted

facts because witnesses have sworn them; therefore I say, Lord Cochrane

might either mistake, upon the grounds upon which the learned Serjeant

has stated it; or the fact might be, as my learned friend has stated,

that he was not the man. I know that some of the witnesses have sworn

that he was the man whom the hackney coachman took to Lord Cochrane's,

but whether he had this uniform on which is stated, I have no means of

proving from his declaration; but I have Lord Cochrane's affidavit as to

his wearing that which was his proper uniform.

Then, gentlemen, upon my Lord Cochrane's affidavit it stands, and I say

that at present there is not evidence enough to meet it. We have not

often had the experience of that which has been done to-day; I believe

not above twice in my professional life have I seen a prosecutor put in

an answer in Chancery of the person who was defendant, and then negative

that answer; but I say, there is not that negation of Lord Cochrane's

story which can set it aside. You are bound to take all that Lord

Cochrane swears upon the subject; and he has sworn to you that Mr. De

Berenger did not communicate to him any single fact respecting the

stocks, but that all his communication was with respect to his then

distresses. Now, gentlemen, where is the inconsistency of that which

appears upon the evidence before the Court, and that which will be

produced. If this gentleman was desirous of going out with Lord Cochrane

in the Tonnant, and if he had done that which I am not commending,

though I shall presently shew it is not so culpable as it at first

appears. He had no right, I acknowledge, to break the rules of the

King's Bench, having the benefit of those rules, but where is the great

wickedness of it? He gave bail to the marshal to answer the risk; but if

he had come out of that place, dressed as you hear, by my Lord Cochrane,

he had done so with a view of going immediately off to Portsmouth; and

when my Lord Cochrane could not take him, though there was no

inconsistency in his coming in that uniform, which was to be useful to

him if he got out to America, there was a great deal of difficulty, at

twelve or one in the day, in his returning in that garb or dress into

the rules of the King's Bench prison, for he had not only to walk from

the place whence those rules began to the house of Davidson, but first

of all to where the rules began; and therefore, though it might be

imprudent in Lord Cochrane, I shall prove that he did lend clothes to

Mr. De Berenger, for that he returned in the black clothes to his

lodgings, and that he had in a bundle those clothes which he had taken

out on his back. There appears to me nothing so absurd in the story as

to induce you to say, that Lord Cochrane has written to the public that

which was wholly and absolutely false within his own knowledge, in order

to deceive the public.

Gentlemen, when this person found that he could neither go with Lord

Cochrane, nor in any other capacity, to Sir Alexander Cochrane, who was

then out of the kingdom, you will ask me, why did he then escape from

the Rules? Gentlemen, I will tell you:--The fact is, though he was only

in duress for £.350; and although this gentleman who sits near him, who

is his attorney, and will be called as a witness in the cause, was the

principal creditor, who had been his surety for the Rules, he escaped

from the Rules, under the apprehension that he should have detainers

against him for four thousand pounds more. He asked this gentleman

permission to go out of the Rules. I am not prepared to defend the act;

but he was the only person who was beneficially interested in his

remaining in the Rules; for he and Mr. Cochrane, in Fleet-street, having

given this bail, the marshal of the King's Bench could, of course, come

upon them for the amount of that sum; and I will prove to you, that he

had the leave of this gentleman to go, and that this gentleman took the

debt upon himself. He went to Sunderland, and afterwards to Leith; and

he went there to avoid that which he was apprehensive of, namely,

detention by his other creditors, to this very large amount.

Gentlemen, when we talk of prejudice upon this subject, this very thing

has been attempted to-day to be put upon his lordship; and you, as a

matter of prejudice against Mr. De Berenger, namely, that Mr. Tahourdin,

who was attorney for Mr. Cochrane Johnstone, and Mr. Cochrane (a

relation as it was supposed of this family, or there was no sense in it)

were his bail. But, gentlemen, Mr. Broochooft has negatived the fact; he

states that he did not even know Mr. Cochrane Johnstone. Mr. Tahourdin

was a creditor of Mr. De Berenger to the amount of four thousand pounds,

but he had so good an opinion of him that he consented to his liberating

himself; and as to the other security, Mr. Cochrane the bookseller, he

is no more a relation of the family of Dundonald, than I who do not know

the persons of any of them; but he is a friend of Mr. Tahourdin, whose

sister is married to Mr. White, Mr. Cochrane's partner; that is the

history of the transaction on which it is supposed that Mr. Cochrane

Johnstone has been putting in bail, because Mr. Tahourdin was his

attorney; but it will appear that bail was put in two years ago, and

that Mr. Tahourdin did not become acquainted with Mr. Cochrane Johnstone

till long after that time.

Gentlemen, there have been other prejudices attempted here; they are

prejudices that I think could never have entered into the mind of any

liberal man; they must have entered first into the minds of the Stock

Exchange Committee, for no gentleman could think of such a thing; that

which I refer to is, that which my learned friend the Serjeant has

commented upon, the proof of Mr. De Berenger being a friend of Mr.

Cochrane Johnstone, from the circumstance of his dining with the family.

Gentlemen, is every one who dines there to be considered as a

conspirator? they are not a committee sitting over their bottle and

hatching this infamy; but it appears that he dined twice at the house of

Mr. Basil Cochrane (who is not implicated in this), not alone, but with

Sir Alexander Cochrane, and a great number of ladies and gentlemen; and

at another time Mr. De Berenger and Mr. Cochrane Johnstone also dined at

Mr. Basil Cochrane's.

Gentlemen, I am told, and I believe, after what I have heard in this

cause, for I have heard it from Mr. Murray, that Mr. De Berenger is a

man of great abilities; his Society and his company were much courted

till his misfortunes put him out of the general run of society; was

there ever such a thing attempted till this moment, as that you were

from such circumstance to prove a conspiracy as against these persons?

On what ground can it be said that his connexion with Mr. Cochrane

Johnstone is a matter of complaint against him? I have proved what it

was; I have proved, out of the mouth of Mr. Murray, and shall prove

again if necessary, that the meeting of these gentlemen there was not a

meeting of business; was there any thing in the conversation when Mr. De

Berenger came in, in the presence of Mr. Harrison, that gives the least

suspicion of a connexion with Mr. Cochrane Johnstone? it appears only,

that he being an ingenious man, engaged himself in this Ranelagh that

was building, from which it was expected (probably it will terminate in

nothing) by Mr. Cochrane Johnstone, that he would derive great benefit;

this gentleman, being consulted on the plan first proposed, recommended

another from which he conceived Mr. Cochrane Johnstone would make a

great deal more money; there is nothing in the connexion more than that.

Are you from that circumstance to infer that this gentleman was guilty

of any conspiracy? as to any negociation on this subject, you hear

nothing nor see nothing. You do not find him at any one period of time

with Mr. Cochrane Johnstone. You hear of his dining twice in company

with him at the house of Mr. Basil Cochrane; you do not hear of him at

all there, except about this Ranelagh; but you are desired from that to

infer criminality.

But gentlemen, this is a most important transaction; my learned friend

has told you he will more satisfactorily explain it by the evidence upon

the subject; there is no doubt of the gentleman who sits before me being

in distress of circumstances, but at the same time a most ingenious man;

and having done various works of art for Mr. Cochrane Johnston, the

latter thought himself indebted to him about two hundred pounds, and

paid him the money. Gentlemen, all I can say upon this is, that there is

no conspiracy amongst us here, for I do assure you, that until I came

into this place, and saw my learned friends, except my learned friend

Mr. Topping, with whom I had spoken on the subject, I did not know that

the others were concerned for the defendants upon this occasion; but I

hear my learned friend state that which I trust he has the means of

proving, but which my unfortunate client has not, not only because many

of his papers have been immediately taken from him by the messenger, in

the manner described, but because he is himself a close prisoner in

Newgate, under a warrant of the Alien Office, and therefore has not the

same means and opportunity of conferring with his Counsel; for I have

never placed myself in that situation, and do not mean hastily to go

there, for it is not a very agreeable service, and I would take no man's

retainer, if I thought that I must do so; there has not therefore been

that communication which we should have had, if our client had been a

free man. But I shall prove by some witnesses of my own, that which will

give a considerable colour to my case, and shall pray in aid all the

evidence given by any other witnesses on this side of the question.

Gentlemen, before I leave this part of the case, I would wish also to

remind you that we have had another piece of evidence given against my

unfortunate client, by a man of the name of Le Marchant. I will venture

to say, and I hope you have observed, that a much more extraordinary

witness never did present himself in that box. It does not become me

(and I am the last man to do it) to arraign any one act of His Majesty's

ministers, but I believe that the exhibition made this day in the

presence of some of His Majesty's ministers, will have been sufficient

to set aside any intention of sending him out under an appointment, if

it ever prevailed in their minds; for I do say, I think he would

disgrace any country from which he was sent on any public business

whatever; I think he would not be long in any situation, before he

disgraced himself as a man, and brought disgrace upon those who employed

him. But gentlemen, I do not know whether you observed another thing,

which is, that he shot out of court as if he had had a sword stuck into

him, and appeared no more; I never saw any thing so marked as his

conduct was upon that occasion.

My learned friend has called your attention to his letter, which I never

saw till he read it; my client was protesting against his testimony; but

I cannot call him as a witness against this man's evidence, which Mr.

Richardson endeavoured by his cross-examination to alter, because it was

our duty to endeavour to get some alteration of that evidence, not

knowing how he had conducted himself. I do earnestly beg of you to

recall to your attention, the answers he gave to my learned friend, the

Serjeant; did he not positively say upon that examination, that he was

only kept by His Majesty's ministers in this country to give evidence,

and that he had not given his evidence at all from a feeling of

resentment, because Lord Cochrane had not complied with his request in

giving him money. Gentlemen, when this correspondence comes to be read

by his lordship's officer, is it possible you can believe one word of

that; he in this letter, which is the last my learned friend stated, and

the only one on which I will comment, stated that he believed every

thing that De Berenger had told him respecting Lord Cochrane, was false.

If it was all false, as it respected Lord Cochrane, it was all false as

it respected himself, for this man had no time-bargains as the other

gentlemen had, he was to derive no immediate benefit, except as you

believe that man. I beg your particular attention to that, that he is

the only person who swears to his having a per centage in this matter. I

think I am correct in that statement, that Le Marchant is the only

person who says De Berenger told him that he was to have a per centage

upon the stock. Now gentlemen, this conversation having been on the 14th

of February, seven days before this transaction, he makes the

observation in this letter, that he verily believes that every thing De

Berenger told him respecting Lord Cochrane was false.

If it was all false, it must be false with respect to De Berenger

himself, and according to his own statement he must have invented this

story, merely to implicate Lord Cochrane in the transaction; it is

absurd gentlemen not to speak to you as men of understandings. Do you

believe that this letter has any other sense, than give me so much

money, or I will do so and so? After threatening him, he says, "As for

my part, I now consider all that man told me to be diabolically false,"

and then without even a new paragraph in his letter, "If my conduct

meets your approbation;" what conduct meets his approbation, that he

would say in all places and at all times that this man's statement was

diabolically false, as far as respected Lord Cochrane; "Can I ask a

reciprocal favour, as a temporary loan, on security being given;" then

he goes on to say, "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." And then, because Lord Cochrane most

wisely refuses to comply with this request, we have this man set up in

the box, to tell you this supposed story of De Berenger, which De

Berenger has no means of contradicting; but which I say is so

incredible, and so contradicted by the letter under his own hand, that I

think jurymen, if it stood upon his testimony alone, or even supported

by one or two witnesses to other things, would do most unrighteously if

they convicted upon such testimony as that fellow has given, for I never

saw a man so disgrace himself as he done.

Now gentlemen, with respect to the proof of Mr. De Berenger's hand

writing, as to those things which were found in his box. I put Mr.

Lavie's evidence out of the question; at first his lordship put it, that

it was slight evidence; but that it was evidence subject to my

observations, the thing being found upon him; gentlemen, supposing there

was no evidence of his hand-writing, I can only say he must be well

clothed in innocence who can escape, if a man is to be convicted, merely

because a paper is found upon him; if a man writes to me a paper

containing matter of a criminal nature, and I happen not to destroy it,

I must immediately be convicted. I do not mean that his Lordship has

said so; but if I am to be convicted because a paper is found upon me,

then a man may be in danger from every letter he receives from a

correspondent; I am sorry to say that I receive a great many letters

which I do not answer; but does my possession of the letters give ground

for inferring an approval of all contained in those letters. If you were

to convict this gentleman on account of any memorandums found in his

possession, because they are found there, I do think a great injustice

indeed would be worked.

But, gentlemen, Mr. Lavie has proved his hand-writing. I shall call

witnesses to contradict Mr. Lavie; but do not misunderstand me, I

believe Mr. Lavie to be a very honourable person, and one who would not

tell you a falsehood; but I say he has not the means of knowledge. I can

only say, gentleman, that a man must be much more attentive to

hands-writing than most of the persons of my profession, in which I

include Mr. Lavie, if he can swear to a hand-writing, because he has

seen that hand-writing once. I have seen my learned friends near me

write many times, but I could not swear to their hands-writing; if I saw

a very bad hand indeed, I should say it was Mr. Serjeant Best's; but let

me caution you; you are trying these defendants for a conspiracy; you

are trying them for a crime of the greatest and most enormous magnitude;

you are trying them for an offence that will shut these gentlemen, if

you find them guilty, out of the pale of all honourable and decent

society; and therefore, though this subject is one, which, from the

singularity of it, may create a smile, it is a matter which you will not

smile upon when you come to pronounce your verdict; because upon your

verdict must the happiness of these gentlemen depend. Will you, upon

the evidence of Mr. Lavie, honourable as may believe him to be, and just

as you may believe him to be, say that he has those means of knowledge

which he professes to have.

Gentlemen, I am placed in a very awkward situation as to that paper,

which my client assures me he never saw, and I mean to call witnesses to

prove, that he is not the writer of it; I do not think it necessary, but

I will do it, for it shall not rest upon me that I have not done my

duty. But I am placed in an awkward situation as to the hand-writing; I

do not complain of it, but the witnesses into whose hands I must put

that paper, have never seen it. Mr. Lavie has seen it; he has had an

opportunity of conning it over; but I think he might have done better

than to have given his own testimony of this Mr. de Berenger's writing.

Mr. de Berenger is not an obscure man in the city of London; he has

lived in this country twenty-five years; he tells me there was no man

acquainted with his hand-writing, who could be called to prove this to

be his hand-writing; and that no witness to speak to that could be

found; but Mr. Lavie went to him improperly; for the Stock Exchange had

no more right to break in upon Mr. de Berenger, at the Parliament-street

coffee-house, than any one of you. I say it was an impertinent

intrusion; this gentleman was brought up on a warrant not respecting

this affair, but on a warrant from the Secretary of State, whilst he was

fatigued and tired, as he stated to the messenger; still most

disgracefully the messenger allowed Mr. Lavie and the Stock Exchange

Committee to pump him upon this matter. How the hand-writing is

attempted to be proved, it does not become me to say further; but I put

papers into the hand of Mr. Lavie, the hand-writing of which, if they be

of the hand-writing of Mr. De Berenger, I will venture to say that the

paper lying before his Lordship is not; because I have eyes as well as

Mr. Lavie has; and I think I can speak to any hand-writing as well as he

can. I say it is not the same hand-writing as these, if my eyes do not

deceive me; and I shall put it into the hands of persons who have known

Mr. De. Berenger long, and they shall say whether it be his hand-writing

or not. Gentlemen, if it be not his hand-writing, which I must assume, I

say the whole of that Dover case falls to the ground; because the main

sheet-anchor of the whole of the Dover case is that paper. Why do I say

so? Because all the witnesses who have come from the Ship Inn at Dover,

Marsh, Gerely, Edis, (Wright is not here, being ill;) these men one and

all, speak to the person called Du Bourg, as being the person who sent

this letter, as aid-de-camp to Lord Cathcart; they all say it was this

man, as they believe, that wrote that letter, and sent it off to Admiral

Foley. I say, gentleman, that story, as applied to Mr. De Berenger,

falls to the ground, if that letter was not the hand-writing of Mr. De

Berenger; inasmuch as the letter is now supposed to be traced into the

hands of Admiral Foley, from the Ship Inn at Dover, by the conveyance of

the little boy. If Mr. De Berenger was not the writer of it, then Mr. De

Berenger was not the man who was at that inn.

Gentlemen, it was said by Mr. Gurney in his opening, that he should call

the landlord and landlady of the house at which Mr. De Berenger lodged,

to prove that he did not sleep at home that night; but they have proved

no such thing. I expected, from my learned friend's statement of it, and

I am sure he expected it, or he would not have so stated it, that they

would have proved that. The man says, he does not know who comes in and

who goes out, being the clerk of a stockbroker, and being a good deal

out; he says, Mr. De Berenger comes in without their interference; he

has his own servants; and all he reasons from is the fact, that he did

not hear him blow his French horn at eight or nine o'clock on the

Monday morning, which I shall prove to you he could not do, for that Mr.

De Berenger went out to Lord Cochrane's at eight o'clock. These people

do not swear, that he did not sleep at home; all they say is, that they

do not know whether he was at home or not.

Now, Gentlemen, upon the subject upon which I am about to address you, I

do not think it absolutely necessary to go into it; and I should not at

this hour in the morning call evidence, but in a matter so highly penal

as this is, and where I am placed in so delicate a situation, and in

which, thank God, I can very seldom be placed, I do not think it right

to act on my own judgment, where my client assures me that he was not

the man, and is an innocent person; and that he is determined (because

he knows perfectly well that what he says is the truth) to have his

witnesses called; he shall have those witnesses called, for I chuse to

have no responsibility cast upon me that does not belong to my

situation. Gentlemen, I shall prove to you most completely that which

will dispose of the case, if it is believed. I trust I have already

shewn, that it is a case depending upon such frail testimony, as it

stands, that it is not worthy of any degree of credit. But I am

instructed, that I shall be able to call five or six witnesses, who all

saw this gentleman in London, at an hour which was impossible,

consistently with the case for the prosecution, and who have no

interest, and had better means of knowledge than those who have been

called before you.

Gentlemen, I do not mean to say those witnesses who have been called

before you have been perjured; but I mean to say, they had not the same

means of knowledge with my witnesses; and that, except one of them, or

two at the utmost, they had not the day light to assist them in

observations they made upon this traveller. Be so good as to recollect

the circumstances under which he was supposed to have come to Dover; he

is found knocking at the door of the Ship Inn, about one in the morning;

the man belonging to the opposite house, having been carousing there at

a most astonishingly late hour for a reputable tradesman, in the town of

Dover, the hatter, the cooper, and the landlord, being sitting together,

hear a knocking at the door; and they find a man in the passage of the

house. Whom do they find there? a man dressed in the manner you have

heard described; but the person who sees him, and holds the candle in

the passage, has a very short conversation with him; the whole time he

saw him did not exceed five minutes, and in that time he went up to call

the landlord; he put the pen, ink and paper, into his room, and then he

left him; he did not see him without his cap, and yet he swears he is

the man; and he is not singular in that, for there are many others swear

to the same.

Gentlemen, it is a prejudice my client has to encounter, that we have

been engaged in this case seventeen hours; and that my learned friend,

Mr. Gurney, who opened the case, was in the full possession of his

powers, and that he has in a measure forestalled your minds by the

evidence he has given, and that the evidence given by me has to

eradicate the impressions which his statements and his evidence have

made. Gentlemen, I put questions to one of the witnesses which his

lordship thought were not of any weight, and _per se_ they were not

strong; but when we are proving identity every little circumstance goes

to the question, aye or no; we had some witnesses swearing to a slouch

cap, one which comes over the eyes, and another swearing that it was

like the coat, _grey_; another that it was a dark brown. If the _fac

simile_ is correct, there are discordances in the evidence which raise a

suspicion in my mind, a suspicion not that the witnesses are perjuring

themselves, but that they had not sufficient means of knowledge upon the

subject; and that you are called upon to convict this gentleman of a

base and infamous crime, from which, except from the evidence of Le

Marchant, he was to derive no benefit unless the £.400 was a _bonus_,

and that upon the evidence of witnesses, who, however respectable, had

very little means of observation; for it was not day light hardly even

when they left Dartford; and the morning we hear was a foggy morning,

and therefore, except Shilling's evidence, we have not evidence that

this is the man in _day light_; we have no evidence of any persons who

saw him in daylight, and identify him as being the person who came from

Dover to London; Shilling's evidence I admit, is, as to his seeing him

in day light, and his evidence is extremely strong undoubtedly.

Gentlemen, I am quite aware, though I have not practised a great deal in

criminal courts, that the evidence of an _alibi_, as we call it, that is

evidence to prove that the person was not upon the spot, is always

evidence of a very suspicious nature; it is always to be watched

therefore; but I am sure that I shall have his lordship's sanction for

this; that if the witnesses to be called have all the means of knowledge

upon the subject, if the generality of them have no interest at all in

the matter of discussion, and if they prove the _alibi_ satisfactorily,

there is no evidence more complete than that of _alibi_, and that

_alibi_ will produce advantage in favour of the person who sets it up,

according to the nature of that case which is made against him; and if

it be merely circumstantial evidence, although that is in some cases

much stronger than positive testimony, yet if the evidence against that

person is chiefly mere evidence of identity of person, I say that the

proof of the _alibi_ will receive stronger confirmation, if those

witnesses who undertake to identify have not had sufficient means of

knowledge upon the subject.

Hear then, Gentlemen, how I shall prove this case. This person, by the

consent of his bail, Mr. Tahourdin, as I have told you, was continually

soliciting for the situation he was desirous of obtaining, for the

purpose of going out to America under Sir Alexander Cochrane; he was

therefore continually violating the rules; and in order to do that with

safety, he used to go down a passage and take water, instead of crossing

Westminster Bridge; because he thought that on Westminster Bridge he

should be more likely to be met by the officers, and so more likely to

get to the ears of the marshal, so as to lose the benefit of the rules;

he was well known to the usual watermen plying there; and I have two

watermen here, who will prove to you that on that Sunday morning, which

was the first Sunday after the frost broke up, so as to open the river

Thames, which had been shut a considerable time, that on the first

Sunday after, namely, the 20th of February, this gentleman crossed at

that ferry to go over to the Westminster side. Gentlemen, I shall prove

to you, that in the course of that day he was at Chelsea; he had been

known at Chelsea, having lived there for a considerable time before he

was in the rules of the Bench. I will prove that he had called at a

house which I will not name, because we shall have that from the

witnesses from whence the stage coaches go; that the ostler at that

house perfectly well knew him, and that he knew his servant; that he

told him the coach had gone off at an early hour in the evening, and

there was no coach to go for some time; he will tell you, that he knew

this gentleman, and is positively sure that he was there. I shall prove

that he went to another house in the course of that evening; and I have

two or three of the members of that family who saw and conversed with

him between eight and nine in the evening of the Sunday, so that by the

course of time, it was absolutely impossible that he could have been at

Dover by one in the morning, if he had been at this gentleman's house at

eight in the evening. I shall prove that after that he went home to his

lodgings. I shall prove that he slept in his lodgings; that his bed was

in the morning made by his maid servant; that he constantly slept at

home, and that he did that night. I have his servants here who will

prove these facts. I allow that he went out that morning, and went out

in regimentals, which they will describe to you, and went to Lord

Cochrane's upon the errand I have described to you.

Now, Gentlemen, in addition to that, there will be the evidence to be

given by my learned friend, Mr. Serjeant Best, which I have a right, as

far as it applies to Mr. De Berenger, to pray in aid for him. Does it

not immediately go to shew, that it is impossible, but that these

persons who have been examined for the prosecution, must have been

mistaken? I do not ask you to presume that these persons have knowingly

said what is not true; but this made a great noise, and persons were

sent to see Mr. De Berenger, and from some similarity of person believed

him to be the man. I do not indeed believe the account given by one of

the witnesses, Mr. St. John; he told a story the most singular, that he

being the collector of an Irish charitable society, with no other means

of livelihood, found himself at Dover searching for news, by desire of

the editor of a newspaper, and he was afterwards on coming up, sent to

Newgate to see Mr. De Berenger, who was exposed to the view of every

person who chose to look at him. Mr. De Berenger was fixed upon as the

man, and you are asked to presume that he fled, because he knew he was

the man. Gentlemen, you will take all these circumstances into your

consideration, and they will account for the mistake in the testimony

of the witnesses for the prosecution; but St. John tells you, that he

found himself by _accident_ at Westminster. I do not call that an

accident at all, for it appears that he walked down to Westminster to

see his person; he went and took a good view of his person, when he was

standing upon the floor of the court of King's Bench, pleading to his

indictment, for being in custody he must be brought into court to plead

to it; this fellow says, he was not in court, but he put his head within

the curtain, where he could see this gentleman, he heard the officer

read to him, and he says that he answered something; I do not care

whether he heard what passed, he saw sufficient to know that he was the

person in custody. I cannot, under these circumstances, believe this

fellow when he tells you, that he went by _accident_ down to

Westminster, for it appears evidently that he went by _design_. I say

there is a readiness and a desire on the part of the Stock Exchange, to

follow this up, I think, with an improper spirit.

Gentlemen, we have had this case dressed up to-day; and it has been

attempted to induce you to believe, that the transactions of the Stock

Exchange were all laudable. Gentlemen, I say they are infamous; but my

learned friend would persuade you, that all the infamy rests upon those

who deceived these poor creatures. It is very true, as his lordship

says, the circulation of a false report is not innocent, for that may

operate against you or me going fairly to buy stock; but I think there

has been an excess of zeal on this business; some of these witnesses

were carried to Mr. Wood's, at Westminster, and they all fixed upon Mr.

De Berenger, not corruptly, but in consequence of being carried there,

and his being pointed out as the man by Mr. Lavie and some of his

clerks; they come readily enough and fix upon him; the deaf man not so

easily, but at last he did it too; and it struck me, the question I put

to that deaf man was extremely relevant. I cannot tell by a witness's

face whether he is merely an actor or not, and especially when my

instructions tell me he is mistaken; I wished therefore to know, whether

he was not looking round the court to give it the air of probability,

and whether he had been standing behind, so as to see the others point

out Mr. De Berenger, whom they all knew, because most of them had seen

him since that time; some of them had not I admit; he is a

soldierly-looking man, and a man likely from the description to be fixed

upon. My learned friend seemed to think that one of the witnesses had

not a fair opportunity of seeing his person, in consequence of his

holding down his head; the fact was, he was taking notes (for he has

taken a very full note); but without meaning to do anything improper, I

said, hold up your head, and he did so immediately; his recognizance was

to appear here to-day, not fearing to have all enquiry made respecting

him and as it appeared to me; he did not on any one occasion attempt to

conceal his person from their observation, I do say, gentlemen, that the

means of knowledge of these witnesses are so slight, that if I call

witnesses to prove, not by vague surmise, never having seen him before,

that he was in their society and company that evening so late, as to

render it impossible that he should have been at Dover that night. But

supposing that the evidence of _alibi_ should not be satisfactory, it

then comes back to the other observations made in the prior part of the

defence.

Gentlemen, this is the general nature of the defence I have to make to

you. You will, I have no doubt, endeavour to free yourselves from all

prejudice infused into your minds; and will come to your conclusion with

a desire to do justice. And I trust that you will, in the result of this

long hearing, be enabled to pronounce, that this defendant, for whom I

am counsel (not meaning by that to exclude any of the rest, but he is

the only one committed to my care) is not guilty of the charge imputed

to him.

The Trial of Charles Random de Berenger, Sir Thomas Cochrane, commonly called Lord Cochrane, the Hon. Andrew Cochrane Johnstone, Richard Gathorne Butt, Ralph Sandom, Alexander M'Rae, John Peter Holloway, and Henry Lyte for A Conspiracy In the Court of King's Bench, Guildhall, on Wednesday the 8th, and Thursday the 9th of June, 1814 · 第 24 / 53 题