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.