Lord ELLENBOROUGH.
Gentlemen of the Jury,
You are now come to that period of the case in which your most important
duty is to be discharged, as it respects the individuals who are the
object of this indictment, and the public, whose interests are to be
protected by the justice you are called upon to administer.
This is an indictment for an offence of great malignity and mischief; it
is for the offence of conspiracy, which is charged to have been
committed by the eight persons whose names are upon this indictment; and
it is for you to consider upon the statement of the evidence I shall
make to you, how far that offence is brought home to all or any of these
Defendants.
The offence of conspiracy, gentlemen, is an offence consisting in a
wicked concert, contrivance, and combination of individuals, to effect
some public or private injury or mischief; that contrivance and that
combination is not to be collected, nor is it practicable, in the course
of human affairs, to collect it from the mouths of the parties assembled
for the purpose of communication, but from the actings and conduct of
the several parties as they may appear generally, to conspire and
conduce to the same wicked end and purpose; and if it appears to you,
from the actings and conduct of these parties, that they entertained the
same common purpose of mischief, and that they have by their several
actings combined and co-operated to the effecting that same wicked
purpose, that is sufficient to bring home the imputation of the crime
charged against the parties; therefore the prosecutor need not shew that
they have met in common council, or even that they have seen one another
before, if their acting shews they were influenced by one common purpose
of mischief, and aimed at the production of the same malignant end and
effect. Suppose persons jointly charged in an indictment with the
breaking of an house, are found on different sides of the same house,
besetting and endeavouring to enter it at the same time; you need not
shew that they had actually met, and previously contrived the plan of
this joint robbery; the unity of their conduct proves their joint
contrivance and concert to accomplish the same end; though, indeed, this
is a case where personal presence at the acts done, renders all
intendment of the personal concert of the actors unnecessary. The same
rules which apply to the offence of conspiracy as a misdemeanor, apply
equally to all crimes committed by concert up to the crime of high
treason, which is often established by evidence of the distinct actings
of separate parties breathing the same purpose, and immediately
conducing to the same end. The question, therefore, for you to consider
upon the evidence (which I am sorry it will be necessary for me to state
to you at a greater length, than, with regard to your ease and
convenience, I could have wished) will be, whether the case is not
brought home by satisfactory evidence to a great number, if not to all
the Defendants.
The crime charged upon this indictment, in eight different charges or
counts, is that of conspiring to raise the price of the public funds; in
some of them it is charged to be with a view to corrupt gain upon the
part of these persons or some of them, or at least to the _prejudice_ of
other _individuals_; for that is enough to constitute the offence, even
if the individuals engaged in this conspiracy had not (as it is imputed
to them that they had) any corrupt motive of personal advantage to all
or any of themselves to answer; if the criminal artifice operated, or
was in all probability likely to operate to the prejudice of the public,
and was clearly so intended, we need not go further; when we know that a
great amount in the funds is at certain periods bought for the public or
large classes of individuals; and you find by the testimony of Mr.
Steers, that on this very day the sum of £.15,957. 10. 8. was bought for
the Accountant General, which would have been bought for less; and every
person for whose use the Accountant General purchased, having to acquire
by means of such purchase shares in the public securities, would of
course have so much the less stock for his money, on account of this
fraud, and would consequently receive a great pecuniary injury thereby;
and no doubt, multitudes of persons besides those immediately alluded
to, and whose cases are not brought individually under your view, must
have been affected by it; for the dealings in the funds are, we know,
every day carried on to a vast amount, and every person dealing on that
particular day, as a purchaser, was prejudiced by the practices by which
a false elevation of the funds was on that day occasioned.
Of the counts, one or two, I think, are not counts on which, properly,
your verdict can be founded, because they state, that every one of these
Defendants knew that a gain was to be acquired by Mr. Cochrane
Johnstone, Lord Cochrane, and Mr. Butt; and it does not appear, with
sufficient certainty, that they knew the relation in which these three
persons stood to the funds, or their interest and speculations therein;
I mean, that such persons as M'Rae, Holloway, and so on, might not know
the precise situation in which the three stood; but if they all
co-operated to the same end, and the Northfleet imposition, as I may
call it, was intended to be auxiliary to the imposition intended to be
effected by the way of Dover, and the parties knew that they were
acting in the same fraud, and were respectively conscious instruments in
producing the same effect, they are all guilty of the same conspiracy;
and it has been admitted, by a learned counsel for some of the
Defendants, that his clients, Holloway, Lyte, and Sandom, have been
concerned in a conspiracy; but, he says, that the conspiracy in which
they were concerned, was another and a different conspiracy, from the
one in which the three first-mentioned of the Defendants were engaged;
and that you cannot unite the two conspiracies together, and convict
them all as guilty of one entire individual conspiracy; and it will be
one material point for your consideration, whether, under the
circumstances which have appeared in evidence, it is made out to your
satisfaction, that they were all conspiring to effectuate the same
purpose, pursuing similar, and with almost a servile imitation and
resemblance, the same means, at the same time, in the accomplishment of
the same end.
Now how has it been done? in both instances, by the adoption of
disguises. Of what nature are the disguises? in both instances, military
disguises; one, indeed, has gold lace round the cape, and the other has
embroidery. Sarah Alexander says, those procured by M'Rae, were officers
coats, with flowers of worsted, and that the hats were embroidered, the
one having a brass plate, and a gold tassel, instead of the sort of
ornaments that the superior actor in this conspiracy (if such you shall
be of opinion he was) had. One was decorated with a star, and that
silver ornament that you have seen; the other was in rather a plainer
dress; but there was in each case the assumption of the character of
officers; and the communication of false intelligence respecting the
good news which was to accelerate peace, was common to both parts of the
scheme. You will consider, upon the whole of the evidence, whether there
is not a link or connection, between the upper and under plot, through
the means of M'Rae, and perhaps of Mr. Cochrane Johnstone, and, whether
the two conspiracies are not united through the means of that person,
M'Rae; his conduct itself is extraordinary; by a most remarkable offer,
on the part of Mr. Cochrane Johnstone, it is proposed that there should
be the sum of £.10,000 given to this man; a man in a low and ordinary
and desperate situation; and it is stated, that Lord Cochrane, Mr.
Cochrane Johnstone, and Mr. Butt, would give £.3,000 among them. Why
should they give that? If, indeed, they could thereby mislead and draw
away the public attention, and divert it to the pursuit and hunting down
of M'Rae, as the sole artificer and perpetrator of the fraud, and could
thereby turn aside observation and suspicion from themselves (supposing
them to be properly charged with this offence), £.3,000 would be well
paid, and cheaply employed for such a purpose. It is for you to say,
whether these letters which have been read to you, do not appear
pregnant of this contrivance and device on the part of the writer.
The first question, gentlemen, will be, was the Defendant, De Berenger,
the man who was found at Dover, about one o'clock on the morning of
Monday the 21st of February, and who proceeded through the several
stages to London, and ultimately to the mansion of Lord Cochrane
himself, and was there received with that dress, whatever it was, that
he wore; but the dress he wore, is proved by so many witnesses, that I
will not fatigue you with stating it now, because I must, by and by,
state the whole of the evidence to you.
A great deal of observation has been made about the character of
hand-writing, of what I call the Dover letter--the letter sent to
Admiral Foley; the object of sending it to him cannot be doubtful, for
it was intended that the Port Admiral should (as he would if he had
believed the report) communicate that intelligence to Government, and
which, if the day had been tolerably clear, might by telegraph have
reached this town in much less than half an hour, I believe in a quarter
of an hour; and having been sent off at this very early hour to Admiral
Foley, who was called out of bed to receive it, it would have been in
town early, and the stocks would have been up at the very moment, when
under the peremptory order before given, £.50,000 would have been sold,
as well as every other part of the stock, standing in the names of the
Defendants.
Gentlemen, there has been great stress laid upon this letter, and
whether it be or be not the hand-writing of De Berenger, I will not (for
it is not my province) draw the conclusion which might be drawn from
looking at that letter; it appears to me evidently an artificial,
upright, stiff hand, as contrasted with the ordinary natural character
of hand-writing of that gentleman. It is sometimes useful to look where
the same words occur in different parts of the same letter; and when you
come to look at the words, "I have the honour to be," in one part of the
letter, and the words "have pledged my honour," &c. in the other; they
present in the first instance, a more angular formation of letters than
I have generally seen, and with reference to the idea thrown out of this
being written in great haste, it is not impossible that this gentleman
having meditated the whole contrivance before-hand, should have brought
this letter down with him, ready written and directed from town, and
that he had called for pen and ink merely to go through the appearance
of writing a letter, and which he might fold up as if for the purpose of
being sent; but that he might hand over to Wright, of Dover, the letter
he had brought with him, not trusting to the hurry of the moment for the
proper formation of one. I do not say that such is the fact; but it is
clear that the letter produced, is the one he actually sent; for he says
afterwards to the witness, Shilling, that he had sent a letter to
Admiral Foley, in order to apprize him that the telegraph might work;
the Dover express-boy proves that he carried the letter given to him, to
Admiral Foley, and what letter can that be, if it is not this, which is
proved to have been delivered to Admiral Foley? This letter was
calculated to impress the Admiral with the belief, that the allies had
obtained a decisive victory, that Bonaparte was killed, that the allies
were in Paris, and that peace was likely to take place immediately.
After the calamity of the long war we have had, ending as indeed it has
ended, in the fulness of glory; we all feel that we have had an abundant
measure of glory, though painfully earned; every body recollects the
sort of electric effect produced upon this town the moment the news now
under consideration arrived; the funds were raised preternaturally; one
cannot indeed on looking back, account for it, how the omnium should
have been up to twenty-eight at that time; there was a considerable
elevation beyond that price during the course of that day; it rose to
thirty and a fraction.
Gentlemen, the prosecutors allege that the Defendant, De Berenger,
having forwarded this letter, pursued his course, coming to town in the
manner stated, and that he ultimately came to Lord Cochrane's house,
upon which I shall hereafter comment. You will not, I think, have any
doubt that De Berenger was the man who appeared under the name of Du
Bourg; but in order to obviate or remove that impression from your
minds, the learned counsel for the Defendant, De Berenger, did adventure
or rather was forced upon an attempt, which I own it seemed to me to
require the utmost firmness to attempt to execute; for there never was
evidence given since I have been present in a court of justice, which
carried to my mind such entire conviction of the truth and authenticity
of that part of the story; you were yourselves witnesses to the manner
in which the witnesses, who spoke to the person of De Berenger, were
put upon the investigation; they were told to look round the court, and
they accordingly threw their eyes about the court in every direction,
before they found the person whom they said they had so taken notice of;
you saw them look behind them, look down, and on every side of them, and
then suddenly, as if they were struck by a sort of electricity,
conviction flashed upon their minds the instant their eyes glanced upon
him; this occurred in every instance I think but one, where the witness
not having his eyes conducted that way, did not discover him. The
learned counsel having such abundance of proof on this head, did not
resort to a means usually adopted on occasions of this sort, and to
which it is perfectly allowable to resort, namely, that of shewing the
person to the witness, and asking him whether such person was the man;
when a man stands for his life at the bar of the Old Bailey, the witness
is frequently bid to look at the prisoner at the bar, and to say whether
he remembers him, and whether he is the person, or one of the persons
(as the case may be) who robbed him; and he pronounces whether according
to his recollection, he is the person or not. So multiplied a quantity
of testimony, so clear, and so consistent, was, I think hardly ever
presented in the course of any criminal trial; differing in no
circumstance respecting his person and dress, excepting in some trifles,
which amidst the general accordance of all material circumstances,
rather confirmed by this minute diversity, than weakened, the general
credit of the whole, and gave it the advantage which belongs to an
artless and unartificial tale. Some saying his cap was a little flat, as
it might be owing to its being drawn over his face; one saying that it
was brown; another I think, that it was of a fawn colour; and one who
spoke with the utmost certainty in other particulars, that it was nearly
the colour of his pepper and salt great coat; but in all the other
substantial particulars, they concur in their accounts most exactly; and
these minute variances exclude the idea of any uniform contrivance and
design in the variation; for where it is an artificial and prepared
story, the parties agree in the minutest facts, as well as the most
important; and indeed, gentlemen, so abundant, so uniform, and so
powerful is the evidence as to one point, viz. the identity of Berenger,
that it strikes me, that if these witnesses are not to be fully believed
as to this point, then almost every man who has been convicted at the
Old Bailey upon so much weaker proof of his being the person who
committed the particular crime with which he is charged, (and which has
been the case in almost _every instance_ I have known), may be
considered as victims unjustly sacrificed in a course of trial, to the
rash credulity of their judges and juries. If the evidence produced is
not sufficient to establish this point, I am at a loss to say by what
description and quantity of testimony, such a point can be
satisfactorily made out in a course of trial.
When the learned counsel addressed himself to prove an alibi, I could
not foresee how it would be satisfactorily accomplished; I cannot say I
believed he would accomplish it, but I believed it would be attempted by
better evidence than that which has been adduced; you recollect the
prior testimony of the Davidsons; the servants had gone out at two,
instead of four; Mr. De Berenger, according to the evidence he has
adduced, is found three miles and a half off; where he had dined, is not
shewn, he is in a hurry to get back; according to the next set of alibi
witnesses, he is found at Mr. Donithorne's between eight and nine,
having been found there in the morning, to measure the garden, at not a
very convenient time, with the snow upon the ground; and who are the
people who speak to this? a man who has been in the habit, which some
of us are, of examining the countenances and demeanor of men brought
forward to speak to guilty untruths, becomes in a degree familiar with
the modes of behaviour which such persons adopt. From something in the
manner of one of the witnesses, which suggested to me that such a
question might not be improperly addressed to him, I asked him, whether
he had not been used to be bail? (thinking that he might possibly be one
of those hired bail, who are the disgrace of our courts of justice).
What does he answer? why, he had been bail once, and then he had been
bail another time, and the amount he did not know; and I think he said
he did not know whether he had not been bail oftener; a man who is in
the habit of being bail, must swear to the amount, and he must swear he
is an housekeeper; and this man had no house over his head of his own,
but was living in the house of another; I thought, too, the man might
have failed, and been obliged to quit his house on that account; and it
so appears, that he was undone in his circumstances, and that he was a
man occasionally presenting himself to swear to his possession of
property, warranting his becoming bail for others. Then what becomes of
Donithorne; he is an inferior cabinet-maker, employed by Mr. Cochrane
Johnstone, and has brought a great number of penal actions for him; at
every turn of the case, he doubles in upon us, and you will presently
have to say, whether he and others, and which others, are not affected
by this case.
Gentlemen, the evidence begins with that of John Marsh, who keeps the
packet-boat public house at Dover, he says, "Upon that 21st of February,
I heard a knocking at Mr. Wright's fore door of the Ship Inn, between
one and a quarter after one o'clock; I went out upon hearing that, and,
on going out, I found a gentleman there, who had on a grey great coat,
and an uniform coat under it. I called for a person at my house to bring
two lights across; when I had the two lights, the gentleman had got
into the passage; he had a star on his red coat, under the great coat;
it is similar to this star." Now, it is said these persons saw him in
the dark, but candles were brought over, and you may see a man's
countenance by the light of two candles placed near him, almost as well
as you could in the day-light we have at present; it would certainly be
sufficient for the purposes of observation; if it were not so, half at
least of the injuries done at night would be very imperfectly proved, if
proved at all. He says, "I do not recollect that he had any other
ornament; he was very anxious for a post-chaise and four; the porter at
the Ship came down to him; he wanted an express horse, and a man to send
to the Admiral at Deal;" then it is highly probable, as he wanted an
express horse, that he did send this letter by that express; the
witnesses swear they saw him writing a letter. "I asked him where he
came from, and he told me, he was the bearer of the most important
dispatches that had been brought to this country for twenty years; I
asked him where he came from? he told me, from France. I asked him,
where he landed? he told me, on the beach; and he begged of me to get a
post-chaise and four for him; and then I went and called Mr. Wright, of
the Ship Inn; then he wanted pen, ink, and paper. I had shewn him into a
room; as soon as Mr. Wright came down stairs, Mr. Wright gave me a sheet
of paper, and pens and ink, which I carried into the room; I gave it to
him, and he began to write upon it; he called for a bottle of Madeira,
and something to eat." That circumstance of his having wine, is
afterwards confirmed, for when he is going up Shooter's hill, he is
giving it away to some of the postillions. "I asked him, whether I
should call the collector of the port? telling him, that it was his
business to see such people when they landed; he made answer to me, that
his business did not lie with the collectors; then Mr. Wright came, and
I had no more conversation with him; two candles were placed, one on
each side of him, and I could see him; _that is the gentleman_;
(pointing him out.) A gentleman of the name of Gourley was there, and
another of the name of Edis, was also there." Then he says, "I went to
get horses with all possible dispatch; he told the two postillions he
would give them a Napoleon each;" and that description of coin attends
him throughout, nor does it quit him to the last, for in the very desk
when he is taken up in Scotland, there were found Napoleons tallying
with these; therefore the proof in this particular is dovetailed and
closed in, beyond any thing I almost ever saw in a court of justice.
Then he says, "he had a German cap on, and gold fringe, as I thought;"
and it turns out, upon an exhibit we had made to us of a similar cap,
that De Berenger had such a cap; those that are shewn, were made in the
resemblance of what, from the evidence, they collected the articles to
be. They are not the originals; the coat, it appears, was cut to pieces,
and got out of the Thames, but the actual cap is not produced; "this is
all that I heard and saw."
Upon his cross examination, he says, "I am not in the least connected
with the Ship Inn, but on hearing this knocking, I went across to see
who the gentleman was out of mere curiosity; I did not observe whether
it was moon-light, foggy, or star-light." It does not signify which it
was, for he saw him by candle-light. "The boots let him in; I was with
him about five minutes altogether, but I cannot speak to a minute; he
was in great haste to get away; I should think he was not more than
twenty minutes at Mr. Wright's altogether. I held the candle while the
boots unlocked the parlour door, and I went and put them on the table;
he wished me to quit the room, and I did not go in any more." Then he is
asked about a large company in the inn, he says, "I do not know that
there had been any; I never saw him before nor yet since, till to-day,
but I can take upon me confidently to swear, _that this is the man_." He
made a very strong observation upon him, and he pointed him out in the
manner you saw. "I never was examined upon this subject before, only by
Mr. Stow, the collector."
On his re-examination, he says, "he told me before I sent for the lights
what his business was, and that he had landed on the beach. I was in the
passage with him till the lights came; my attention was called to him as
a stranger of importance. I saw the person when I was by myself in the
hall, and knew him the instant I saw him; I have not the least doubt
that he is the same man."
One of the other persons who saw him, of the name of Gourley, a hatter
at Dover, speaks to the same thing--"I was at Mr. Marsh's, the
packet-boat, on the morning of the 21st of February; Mr. Marsh went over
and called for lights; I took two candles and went across with them to
the Ship, where I perceived a gentleman in a pepper and salt coloured
coat, similar to that which is shewn to me. Mr. Marsh asked me to go and
call the ostler up, and to tell him to get a post-chaise and four
immediately. I did so; and after some time, when I had got the ostler
up, I returned back again and found the stranger in the parlour; there
were lights in the room; there were two candles upon the table; the
gentleman was walking about in a red uniform trimmed with gold lace,
with a star upon his breast, and he had a cap on similar to that, with
gold lace on it. I asked him, what news; having heard them say he was a
messenger. He said messengers were sworn to secrecy, but that he had got
glorious news; the best that ever was known for this country. He rang
the bell and called for pen, ink and paper, to write a letter, to send
off to the Admiral at Deal." So that he professes, as the first witness
says, to write a letter; and here he speaks of sending it off to the
Admiral at Deal:--"that was brought to him, and he continued writing
some little time while I was there. I took leave of him before he had
finished the letter; the candles were sufficiently near him to observe
him; that is the gentleman, and I have not the least doubt that it is
him."
On his cross examination, he says, "I came over when I was called by Mr.
Marsh to bring candles; I went and called the ostler, and waited till I
waked the ostler; I left the candles in the passage; I saw him write on
the paper when it was brought; I was sitting with Mr. Marsh when he
arrived; I had not dined at the packet-boat." I suppose the question
pointed to whether this man was likely to have been sober or drunk at
that time: I do not know that there is any thing extraordinary in a
man's sitting up till twelve or one o'clock; but that has been the
subject of the observation.
Upon his re-examination, he says, "perhaps I might be in the room, so as
to have an opportunity of observing him three or four minutes; my
attention was called to him particularly; he had a cap on sometimes, and
sometimes not; _I have no doubt that is the man._"
Eliot Edis, a person who you recollect was rather deaf, says, "I am a
cooper in the victualling yard at Dover, I was at the packet boat on the
morning of the 21st of February, Gourley was there with me; my attention
was called to a messenger who had arrived. I saw the messenger first at
the Ship, he was in a room at the time, walking up and down the room. I
observed his dress; he had a grey great coat and regimentals, scarlet
trimmed with gold; I did not particularly notice any other ornament; he
had a cap with a gold band, that was the colour of the coat, it was a
slouched cap;" upon that there has been much observation; "the cap
appeared to be made of a kind of rough beaver, I do not know whether it
was black or brown;" by that light you would not know very distinctly
whether it was black or brown; "it was rather flat all round, and had no
rim like a hat. I saw him sit down and write. I did not hear him say
whom he was writing to. I could hear him talk; but not to understand
him, being rather deaf; his cap was on while I was there." He is desired
to look round, and to point out the gentleman, and he says, "that is the
gentleman," pointing to him. "I have no doubt that is he; I had never
seen him before that night, nor since;" and yet as you saw him, looking
round, he instantly found him out among so many as there were then round
him, it is not probable that if they had not seen him before, and had
not his picture engraved upon their minds, they would have known him
again so well; and it would be very remarkable that they should all
pitch upon the same person. "I might see him perhaps for five or six
minutes; the cap was rather slouched; it had no brim to it; it was drawn
over his forehead; the round part of it was drawn over his forehead. I
was not in court when Marsh was examined." It was suggested that he
might have picked up his story from Marsh; but a man who was deaf could
not have heard him, if he had been in court.
Mr. William St. John is next called; he speaks in the same manner; it is
unnecessary to go through the whole of it. He says, "he wore a scarlet
coat with long skirts, buttoned across, with a red silk sash, grey
pantaloons, and a grey military great coat, and I think it was a
seal-skin cap;" now with that light he might very easily mistake; I
believe it is very common to have seal-skin caps for travelling.
_Mr. Gurney._ This is seal-skin, my Lord.
_Lord Ellenborough._ I did not know that; "he had, I think, a seal-skin
cap on his head, of a fawn colour," and it is a fawn colour, certainly;
"there were some ornaments on his uniform, but I do not know what they
were, something of a star on his military dress; he was talking up and
down the room in a very good pace; I asked him, whether he knew anything
of the coming of one Johnson," a messenger whom the witness expected;
"he said he knew nothing at all about him, and begged I would leave him
to himself, as he was extremely ill;" this gentleman appears too
inquisitive, and he did not seem to like him. "On my leaving the room,
he requested that they would send in paper, and pen and ink; I
immediately retired, and met the landlord, Mr. Wright, coming into the
room, I believe, with the paper, pens and ink; in a few seconds
afterwards I returned into the room, and he was writing, I did not hear
him say any thing about the paper he was writing. I left the room
immediately. I saw him again at the door in the street. When he was
stepping into the carriage, I asked him what the news was; he told me it
was as good as I could possibly wish; I did not see what he did with the
paper he was writing upon, nor did I hear him say what he was writing
about, he went away the first of us."
Now this man has been made a good deal the subject of comment; for it
appears that he had gone down to Dover, and was, in some respect,
waiting for news; there was a kind of reluctance in him to acknowledge
that, in respect of which there need not have been any, for there is
nothing whatever objectionable in his sending up paragraphs for the
Traveller newspaper. I believe the publishers of these papers mostly
have some persons stationed at the out-ports, to obtain intelligence of
important events, and particularly so critical and anxious a moment as
that was they would naturally have such persons at the port of Dover;
there was nothing he should not avow; and if it was with the view to
purchase in the funds, in consequence of the intelligence he should
receive; if a man purchases funds upon public intelligence fairly and
honestly come by, when every body has an equal opportunity of acquiring
it and the intelligence is genuine, it is like buying any other article
in the market, upon fair knowledge of the circumstances connected with
its value; it is as allowable to deal in that article as in any other,
upon equal terms; but the objection here is to a dealing which resembles
the playing with loaded dice; if one plays with secret means of
advantage over another, it is not fair-playing--it is a cheat: I own I
have been much shocked with this sort of fraudulent practice, called
three times over, in the letter of Cochrane Johnstone, _a hoax_; I
cannot apply a term which imports a joke to that, which if the
Defendants are guilty of, is a gross fraud upon public and private
property; and unless every species of depredation and robbery is to be
regarded as a species of pleasantry, I think the name of hoax, which has
been given to it, is very ill applied to a transaction of so dishonest
and base a description.
Then Mr. St. John says, "I went to Dover, by desire of a friend of mine;
his name is Farrell; he is a merchant in the city, and is a proprietor
of the Traveller." Then being asked, where that gentleman lived, he
says, "In Austin Friars: I was to communicate to Mr. Farrell or to Mr.
Quin." Then he says, "certainly the arrival of news at such a time would
have an effect upon the funds."
Then William Ions, the express-boy, being shewn to the last witness, St.
John, he says, "this is the boy whom I saw sent with one of the two
expresses that was sent that night; this lad went with the express to
the Port-admiral at Deal, I believe; it was the express that Mr. Wright
gave him from the gentleman who was there; _from that gentleman_."
William Ions says, "In February last I was in the service of Mr. Wright,
of Dover; I was called up when the officer arrived there, and was sent
with an express to Admiral Foley; I took the letter I received to
Admiral Foley; Mr. Wright gave me the letter whilst I was upon my pony;
he came out to the door with it; and that letter which I received, I
delivered to the Admiral's servant at Deal. She took it up stairs to the
Admiral, and I saw the Admiral before I left Deal, after the letter was
delivered to the servant, who took it up stairs." Therefore, whatever he
received at Dover he delivered to the Admiral, and what the Admiral
received we have here; there is an interruption in the proof certainly,
in consequence of Wright, of Dover, not being well enough to be here as
a witness; and therefore it did not appear by his testimony, that that
which he, Wright, had received, Wright had delivered to his express-boy,
to go over to Deal with; but that is supplied by the circumstance of De
Berenger, if he was the person, telling Shilling, the Dartford driver,
that he had sent off such an express; therefore it must be presumed that
he had sent that letter which contained an express to the Admiral; and
that which the Admiral received he shews you.
To supply that defect in the evidence, Mr. Lavie was called to say, that
he believed it to be De Berenger's hand-writing; and though this does
not appear to be the ordinary undisguised hand of this Defendant, yet
after Lord Yarmouth, who had given his evidence that he did not consider
it his hand-writing, referred to the letter _R_, the initial letter of
Random de Berenger's christian name, he considered _that_ as resembling
his hand-writing, and you would observe, whether there was not such a
resemblance as Lord Yarmouth mentions, if it were at all material; but
it ceases entirely to be material, when he tells Shilling, as he does,
that he had actually sent such a letter to the Admiral.
Admiral Foley is next called; he says, "The letter was brought to me,
that that boy brought to the house; I was a-bed; I read the letter in
bed; I did not mark it; I enclosed it in a letter to Mr. Croker, the
Secretary to the Admiralty; that is the letter; I sent it enclosed in
this letter to Mr. Croker; I arose immediately, and sent for the boy
into my dressing-room; I questioned the boy a good deal; I did not
telegraph the Admiralty, because the weather was too thick; when I sent
for the boy up, I had the letter in my hand; it was then three o'clock,
and dark; the telegraph would not work; I had a candle, of course; I am
not certain I should have telegraphed the Admiralty," and if he had seen
reason to doubt, he would have acted very properly in abstaining from so
doing; he could not communicate all that would excite the doubts he
might himself entertain; he could only send a few words, indicating the
most important particulars of the story which the letter contained, and
therefore he might very properly hesitate about communicating any part,
if he thought the whole contained doubtful, still more if untrue
intelligence.
The evidence of Mr. Lavie is only that he believed this to be De
Berenger's hand-writing; that he had seen him several times in the
custody of the messenger in the month of April, and in the course of
those interviews, he saw him write a considerable deal; he saw a whole
letter which he handed across to him when he had written it, and it was
given back and copied again, and for about an hour he was writing
different things, and handing them backwards and forwards. He says, "I
also saw his papers in his writing-desk, and I verily believe that to be
his hand-writing, from what I saw him write." This is the evidence, and
much less than this evidence, is what we receive every day in proof of
bonds, notes, and bills of exchange; a person says, I have seen such an
one write, and I belief that to be his hand-writing; and that is
sufficient to launch it in evidence as primâ facie proof, leaving it to
the other side to resist such proof, if they can.
Gentlemen, now we put this person in motion from Dover. Thomas Dennis
is next called, who says, "I am a driver of a post-chaise in the service
of Mr. Wright, at the Ship, at Dover. Early on the morning of the 21st
of February, I drove the chaise from thence to Canterbury to the
Fountain Inn; I drove only one person, it was a man; it was too dark to
see how he was dressed; I had the leaders; he gave me and the other lad
a Napoleon a-piece." He could not see the person; and there is identity
only by the sort of specie in which he deals. "I sold it for a one pound
note. I know the lads at Canterbury, who took him after me, Broad, and
Thomas Daly; I saw Broad and Daly set off. There is nothing
extraordinary in persons travelling day or night into Canterbury. I
cannot say whether it might be the 20th or 22d; persons do not often
give us Napoleons for driving them, I never had one given me before." No
immaterial circumstance to induce a recollection of this particular
traveller, nor (connected with similar evidence from other witnesses) to
establish his identity.
Edward Broad, a driver of a chaise at the Fountain at Canterbury, says,
"I remember the last witness coming to our house with a fare, early in
the morning in February, I do not remember the day of the month, nor the
day of the week; it was one gentleman came from the Ship at Dover; I
drove the leaders--I drove to the Rose at Sittingbourn; the chaise went
forward with four horses--he did not get out. Michael Finnis and James
Wakefield drove him from thence; I did not receive any money from him,
the other boy received the money, I had a Napoleon for my share." Till
the day-light breaks, we have nothing to identify him in the course of
his conveyance, but the Napoleons.
Then Broad, upon his cross-examination, says, "I have long lived at the
Fountain, and have known Thomas Dennis some years; I do not know that I
ever drove a fare that he brought before; I might; there are a great
many boys from that inn at Dover; I have driven a single gentleman
before, and sometimes a chaise and four." But upon re-examination, he
says, "I never before received a Napoleon for it."
Michael Finnis, the driver of a chaise at Sittingbourn, says, "I
remember the last witness bringing a gentleman in a chaise and four to
our house, I did not take particular account of the time, it was early
in the morning, it might be between four and five o'clock; I did not
take particular notice, for I had no watch with me--it was dark; I drove
him to the Crown at Rochester, Mr. Wright's house; I cannot say what
time it was when we got there, we were not above an hour and ten minutes
in going. The Gentleman got out there, and gave me two Napoleons, one
for myself, and one for my fellow-servant; I took no particular notice
of him; he had a pepper and salt coat on, and a red coat under that, I
perceived, and a cap." So that this man took no particular notice of his
countenance, but speaks to his dress and his appearance, as the other
witnesses do.
Mr. Wright, who keeps the Crown Inn at Rochester, who saw him in the
house, speaks with much more particularity; he says, "I remember a
chaise and four from Sittingbourn arriving at my house on the morning of
the 21st of February, I remember that was the day; it was a tall person,
rather thin than otherwise, who came in the chaise; he had a pepper and
salt great coat, with a military scarlet coat under it; the upper coat
was nearer the colour of that coat, than any thing I could state
(_pointing to the coat on the table_); the scarlet military coat he had
under that, was very much trimmed with gold lace down the front, as it
appeared by candle light, and a military cap with broad gold lace round
it; it appeared to me to be cloth or fur, it appeared to be nearly the
colour of the great coat." The cap does not appear to have any
resemblance to the great coat, but in all other respects his description
seems to be right. "On the military coat, there was a star, and
something suspended, either from the neck or the button, I do not know
which, something which he told me was some honour of a military order of
Russia;" it turned out to be a masonry order. He is shewn the star, and
he says, "it had very much the appearance of that sort of thing. I
suppose I was in conversation with him about ten minutes; it was about
half past five when the chaise drove into the yard; during those ten
minutes I was getting some chicken for him, in our bar parlour. I was
called up by the post-boy of my brother at Dover, I went into the yard,
and found a gentleman looking out at the front window of the chaise, and
he said, he was very hungry, could he get any thing to eat? that he had
ate nothing since he left Calais; I asked him, if he would have a
sandwich, as I supposed he would not get out of the chaise; he said he
would get out, and he did get out, and I took him into our bar parlour;
when he got there I said, I am led to suppose, that you are the bearer
of some very good news to this country;"--a very natural overture to
conversation on the part of an innkeeper, and to extract a little
intelligence from him; "he said, he was, that the business was all
done--that the thing was settled; I asked him, if I might be allowed to
ask him what was the nature of his dispatches? he said, he is dead; I
said, who? he said, the tyrant Bonaparte, or words to that effect, I
believe these were the exact words; I said, is that really true, Sir."
Upon which this gentlemen seems to have been piqued at having his
veracity questioned, and said, "if you doubt my word, you had better not
ask me any more questions;" in answer to which, Wright, not being
willing to have his curiosity unsatisfied, said, "I made an apology for
doubting the veracity of his story, and asked him, what were the
dispatches? he said, there had been a very general battle between the
French and the whole of the allied powers, commanded by Schwartzenberg
in person; that the French had been completely defeated, and Bonaparte
had fled for safety; that he had been overtaken by the cossacks, at a
village which I think was called Rushaw, six leagues from Paris; that
the cossacks had there come up with him, and had literally torn him in
pieces; that he had come from the field of battle from the emperor
Alexander himself, and that he either was an aide-de-camp of the
emperor, or of one of his principal generals." Now the account he gives,
tallies almost in terms with the letter which had been sent off to Deal;
so that there is another proof of the identity of this person, and a
connexion of him with this letter sent to Admiral Foley. Then he adds,
"He told me, that the allies were invited by the Parisians to Paris, and
the Bourbons to the throne of France. That was pretty well all the
conversation that passed; he ate very little, if he did any thing--he
said he was very cold; I asked him, if he would take any brandy? he
said, no, he would not, for he had some wine in the carriage;" it turned
out that it was so. "He enquired what he had to pay? I told him, what he
had had, had been so uncomfortable, I did not wish to take any thing for
it; he did not accept of that, he threw a Napoleon on the table, and
desired me to take that for what he had himself taken, and wished me to
give the servants something out of it, he meant the whole of the
servants, for when he got into the chaise, the ostler asked for
something; and he told him, that he had left something with his master,
out of which he might be paid. He went away in the same chaise that
brought him, with four horses. James Overy and Thomas Todd, were the
persons who drove him." Mr. Wright had proceeded thus far, and then he
looked round the court, and fixing upon De Berenger, said, "I believe
that is the person; I have no doubt--it is certainly the gentleman; I
had never seen him before, or since." This undoubted identification of
person, is almost peculiar to this case; I never saw a case in which so
many persons turned into the court at large, recollected a man at once,
and with so much certainty.
Upon his cross-examination, he says, "I never saw the gentlemen before
nor since till to-day; he wore a large cockade, very dirty, as if it had
been worn a long time;" then he produced the Napoleon; and he says,
"upon looking at him, I am sure he is the same person."
James Overy, who was the postillion, says, "I took up a person at my
master's house at Rochester, on a Monday; I do not remember the day of
the month. I drove him to Dartford, to the Granby; he had on a grey
mixture coat; a red coat like an aid-de-camp, adorned with a star, very
full indeed, something about his neck hanging down, and a cap, and a bit
of white ribbon about the cap, such as officers wear, with a gold lace
band round it. When I came to Dartford, it was ten minutes before seven;
it was day-light two miles before we came to Dartford. I am not sure I
should know the person again; he gave me two Napoleons, and he paid me
five £.1. notes, and a shilling for mine and the Dartford horses, and
the turnpikes; he gave us a Napoleon a-piece. Thomas Shilling and Broad
took him from Dartford."
On cross-examination, he says, "the cap was such a cap as officers wear
in a morning, slouched down, I think the top of the cap a little turned
down; I did not observe the colour."
William Tozer, the next witness, says, "I keep the Crown and Anchor at
Dartford; I remember Jem Overy bringing a fare to a house in our town on
a Monday about the 21st of February, and the person I took notice of was
sitting in the chaise. I made my obedience to the gentleman in the
chaise, hoping that he had brought us good news; he said he had, and
that it was all over; that the allies had actually entered Paris; that
Bonaparte was dead, destroyed by the cossacks, and literally torn to
pieces." Here again is the same account in effect which is contained in
the letter to Deal, given by word of mouth, "and that we might expect a
speedy peace. During the conversation, I saw him give Overy two gold
pieces, which afterwards proved to be French pieces; I had them in my
hand. I saw enough of the person in the chaise, to be positive I should
know him if I saw him again." This was the witness, who looking round,
did not find the Defendant; to be sure, the Counsel might have asked him
whether that was the person; but from delicacy that was not done, which
was certainly an unnecessary delicacy upon such a subject.
Thomas Shilling, the chaise-driver from Dartford, says, "I remember
taking up a gentleman who came in a chaise and four to Dartford, I
believe it was on the 21st of February, it was on a Monday. I had the
wheel-horses. On our road to London, he discoursed with me a good deal;
the waiter at Dartford, at the Granby, first spoke to him, asking him
whether he brought any good news; the gentleman said, yes, it was all
over; Bonaparte was torn in a thousand pieces; the cossacks fought for a
share of him all the same as if they had been fighting for sharing out
gold; and the allies were in Paris. We were ordered to go on; we had
gone to Bexley before the gentleman spoke; the gentleman then told me
not to hurry my horses, for his business was not so particular now,
since the telegraph could not work. I told him, I thought the telegraphs
could not work, for I knew almost every telegraph between Deal and
London. He then said, "postboy, do not takes any notice of the news as
you go along;" I told him I would not, unless he wished me to do so; he
said, I might tell any of my friends as I returned, for he durst to say
they would be glad to hear it; he said he had sent a letter to the Port
Admiral at Deal, for he was obliged to do so;" therefore you have him,
unless this be a premeditated falsehood in the evidence of this man,
Shilling, authenticating the fact of the letter from Dover; "he said
that he had walked two miles when he came ashore at Dover, before he got
to the Ship Inn; that the Frenchmen were afraid of coming any nigher to
Dover, for fear of being stopped." Where he got into Dover, or how, we
do not hear; of the points of the outward voyage we know nothing; of the
homeward we have a pretty good account of all the places where he
touched, &c. "then we drove on till we came to Shooters Hill; when I got
there, my fellow-servant and I alighted, and the gentleman gave us part
of a bottle of wine; he said we might drink, because he was afraid the
bottle would break; he gave us some round cakes also. I chucked the
bottle away, and handed the glass again into the chaise; he told me that
I might have it; he then said, "postboy, you have had a great deal of
snow;" I said, "we have;" he said, "here is a delightful morning,
postboy; I have not seen old England a long while before;" then he asked
me which was the nearest coach stand; I told him at the Bricklayers
Arms; he told me that would not do, it was too public, he was afraid
somebody would cast some reflections, and he should not like it." It was
bringing him very nearly within the vicinity of the King's Bench, where
it should seem his countenance was better known than he liked it to be.
"I told him I did not think anybody would do that, they would be too
glad to hear of the news; he asked if there was not a hackney-coach
stand in Lambeth; I said "yes," he said "drive me there.""
Now it has been observed he points his direction towards Lambeth, and
the other express, it seems, that went through the city, which has been
called the Northfleet expedition, is ordered not to go Lambeth, but to
Lambeth Marsh. The learned Counsel has remarked, that they are not
ordered to the same point at first, and that it would have been a strong
confirmatory point, if they had been so; but there is to a great degree
an identity of direction, an identity of object, and something like an
identity of disguise in military uniform; "he said, drive me there,
postboy, for your chaise will go faster than a hackney-coach will. I
drove him to the Three Stags in the Lambeth road; there was no
hackney-coach there. I ordered my fellow-servant to stop, and looked
back, and told the gentleman there was no coach there; but that there
was a coach stand at the Marsh Gate." So that the Marsh Gate arose
incidentally, and was not his original plan; "and if he liked to get in
there, I dared say nobody would take any notice of him; I think he
pulled up the side blind, that had been down before all the way; when I
got there, I pulled up along side to a hackney-coach; I called the
coachman, and the waterman opened the coach door, and I opened the
chaise door; the gentleman stepped out of the chaise into the coach
without going on the ground;" the question which produced this answer
was put with a view to something adverted to, as published upon the
subject, in which some evidence was supposed capable of being opposed to
the story of the driver, in this particular, who, however, relates it
plainly and naturally, and is confirmed by the waterman, who was there
at the time; "he then gave me two Napoleons; he did not say one was for
my fellow-servant, and the other for myself, but I concluded that it was
so; I have got them here," and he produces them; so that it does not
appear that he has distributed this gentleman's bounty, but he is still
a trustee for his fellow-servant. "I did not," he says, "hear him tell
the coachman where to drive to. The name of the coachman is Crane. I
know the person of the waterman very well. The gentleman was dressed
with a dark fur round cap, and with white lace, and some gold round it;
whether it was gold or silver I cannot say; he had a red coat on
underneath his outer coat; I think his outer coat was a kind of a brown
coat, but I will not swear to that; I saw a red coat underneath it, down
as far as the waist; I did not see the skirts of it; I think it was
turned up with yellow, but I should not like to swear that; it had some
sort of a star upon it. I think upon his outer coat there was a kind of
white fur; but I should not like to swear to that. I should know him in
a moment. I have seen him and knew him again; that is the gentleman
(_pointing to him_); I have no doubt. I saw him once before in
King-street, Westminster, in a room; I knew him then the moment I saw
him; I never had the least doubt about him; the moment I saw him I knew
him."
Upon his cross-examination, he says, "I was not told this morning in
what part of the court he sat; I looked round the court when I came in,
and saw him immediately; I never saw him before February." He is asked
about a reward that was offered by the Stock Exchange, he says, "I heard
of it the day it was printed, two or three days after this transaction
happened. I remember a club at Dartford, called the hat club; I was
there;" and then there is some foolish story about his laying a wager
there; but as there is no evidence brought to impeach his testimony upon
the grounds to which the cross-examination went, it is unnecessary to
pursue that part of the examination further; he says "Lambeth Marsh is
not far from the Asylum. I went there for the purpose of getting a
coach; _that he says_ (pointing to Bartholomew) _is the waterman_."
Then William Bartholomew the waterman is called; he says "I am a
waterman attending the stand of coaches at the Marsh Gate; I know
Shilling by seeing him come up with post chaises; he is a Dartford
chaise-boy. I remember his coming with a chaise on the 21st of February;
there were four horses, and there was a gentleman in it; it was between
nine and half past nine in the morning; there was only one coach on the
stand; one Crane drove the coach; I saw the gentleman get out of the
chaise into the coach, he stepped out of the one into the other; I
opened the door, and let down the step for him; he had a brown cap on, a
dark drab military great coat, and a scarlet coat under it; I only took
notice of the lace under it. The gentleman ordered the coach to drive up
to Grosvenor-square; I do not remember that he told me the street in
Grosvenor-square. I really think that is the gentleman, it is like him;
dress makes such an alteration, that I cannot with certainty say."
Then Mr. Richard Barwick says, "I am a clerk to Messrs. Paxtons and Co.
bankers, in Pall Mall. I remember passing by Marsh Gate on the morning
of Monday the 21st of February. I observed a post-chaise with four
horses, it had galloped at a great rate; the horses were exceedingly
hot, and I saw a man getting into a hackney coach; I followed it, and
saw it as far as the Little Theatre in the Haymarket; I wanted to know
what the news was." Being a banker's clerk, it was natural he should
wish to know what the public news was. "I observed the coach passed the
public offices in the way." It appears, that he was a little surprized
at this person not stopping to communicate his news at those offices.
Whether he suspected him or not, he does not say; but observing that he
stopped at none, and it being time for him to go to the banker's shop,
he did not think it worth while to pursue him any further. This was
about nine o'clock, as he supposes, that he left him in the Haymarket.
Then he says, the gentleman had a cap on with a gold band, such as
German cavalry use at evening parade; this appears to me something like
it.
Then William Crane, the coachman, says, "I remember on Monday morning
the 21st of February, taking up a fare at Marsh Gate from a post-chaise
and four from Dartford. I was directed to drive to Grosvenor-square; I
drove into Grosvenor-square; the gentleman then put down the front
glass, and told me to drive to No 13, Green-street; the gentleman got
out there, and asked for a colonel or a captain somebody; I did not hear
the name, and they said he was gone to breakfast in Cumberland-street;
the gentleman asked if he could write a note; he then went into the
parlour; the gentleman gave me 4_s._; I asked him for another." Hearing
that Napoleons had been distributed to drivers, he thought that a
hackney-coachman might ask for a little more of his bounty than he at
first received. "He took a portmanteau that he had, and a sword, went in
and came out again, and gave me another shilling. The portmanteau was a
small black leather one; I saw that gentleman in King-street,
Westminster, at the messenger's house. I think this is the gentleman
here; when I saw him in King-street, as I came down stairs, he looked
very hard at me; I knew him then, though he had altered himself a great
deal in his dress."
Upon his cross examination, he says, "I went to Mr. Wood's, the
messenger of the Alien Office, for the purpose of seeing him; I walked
down stairs, and met the gentleman coming up stairs, and I thought he
was something like the gentleman I had carried; I do not know every
person I carry in my hackney-coach; this person, when I got to
Green-street, I saw had a red coat underneath; the waterman opened the
coach-door for him to get in." So that he was within view of the
waterman. "He had on a brown grey great coat, with brown fur cap."
Now, gentlemen, he is brought to the house of Lord Cochrane; further
evidence arises afterwards upon the subject of his being there.
We will at present follow the dress to its conclusion. George Odell, a
fisherman, says, "In the month of March, just above Old Swan stairs, off
against the Iron Wharfs, when I was dredging for coals I picked up a
bundle, which was tied up with either a piece of chimney line or window
line, in the cover of a chair bottom; there were two slips of a coat,
embroidery, a star, and a piece of silver, with two figures upon it; it
had been sunk with three pieces of lead and some bits of coal; I gave
that which I found to Mr. Wade, the secretary of the Stock Exchange; it
was picked up on the Wednesday, and carried there on the Saturday. I
picked this up on the 24th of March." You have before had the animal
hunted home, and now you have his skin, found and produced as it was
taken out of the river, cut to pieces; the sinking it could have been
with no other view than that of suppressing this piece of evidence, and
preventing the discovery which it might otherwise occasion; this makes
it the more material to attend to the stripping off the clothes which
took place in Lord Cochrane's house. When he pulled off his great coat
there, what must he have displayed to his Lordships eyes, if present at
the time? Did he display the uniform of the rifle corps? The uniform of
the rifle corps is of a bottle-green colour, made to resemble the colour
of trees, that those who wear it may hide themselves in woods, and
escape discovery there; that is, I presume, the reason of their wearing
that species of uniform, and as to the idea suggested in Lord Cochrane's
affidavit, that his exhibiting himself in that uniform would be deemed
disrespectful to Lord Yarmouth. Lord Yarmouth has told us, that on the
contrary he should have thought it a matter of respect to him, and
proper as his officer, to have appeared before him in that very dress.
The account that is given of this man's pulling off his dress, as
contained in the affidavit of Lord Cochrane, is highly deserving of your
attention. It is a rule of law, when evidence is given of what a party
has said or sworn, all of it is evidence (subject to your consideration,
however, as to its truth) coming as it does, in one entire form before
you; but you may still judge to what parts of this whole you can give
your credit; and also, whether that part, which appears to confirm and
fix the charge, does not outweigh that which contains the exculpation.
Now I will state to you, what is Lord Cochrane's affidavit; it may as
well come in now in this period, as in the later period in the cause; it
was produced in the pamphlet published by Mr. Butt, and is prefaced by
Lord Cochrane thus, "Having obtained leave of absence to come to town,
in consequence of scandalous paragraphs in the public papers, and in
consequence of having learnt that hand bills had been affixed in the
streets, in which I have since seen it is asserted, that a person came
to my house at No. 13, Green Street, on the 21st day of February, in
open day, and in the dress in which he had committed a fraud; I feel it
due to myself to make the following deposition, that the public may know
the truth relative to the only person seen by me in military uniform at
my house on that day." Now it is material to observe, this affidavit
first introduced the name of De Berenger in any public document; whether
it was known privately at any earlier period we are not informed, the
date of it is the 11th of March. The Davidsons have informed you, that
the day he finally disappeared was the 27th of February, (Mr. Cochrane
Johnstone having called and left a letter, for what purpose we know not,
on the 26th,) he appears to have very soon got to Sunderland, and might,
on the 11th of March, the date of this affidavit, be reasonably
supposed to have been out of the kingdom.
It is in evidence, that when De Berenger was taken, there was found in
his writing-desk part of the produce of the exchange at the bank of four
£.100 notes, two of the bank notes of £.200 being changed first into two
£.100 notes, and then into ones; the whole are identified by the clerks
of the bank; sixty-seven the produce of one £.100; forty-nine identified
as the produce of another, and seven the produce also of one of those;
there are traced to him likewise a £.50 and a £.40; the £.50, traced by
the evidence of Smith to-day, the evidence upon that subject being
deficient yesterday, I stopped them short, because I thought that the
entry of the mere initials W. S. and £.50, did not afford distinct and
sufficient proof that the person meant by those initials was William
Smith, and that the £.50 was a sum which had passed between Wm. Smith,
Mr. De Berenger's servant, and him, and that the evidence was deficient
in that respect. The principal part of these are the produce of the
draft of £.470, and a fraction, which was changed as will appear in the
evidence, when that part of it is stated to you. Originally the £.470
draft had been laid down before and paid to Lord Cochrane; it had
afterwards got into the hands of Mr. Cochrane Johnstone and of Mr. Butt,
for there appeared to be such a communication between the parties, that
you cannot say from whom ultimately it proceeded, but it had been in
some sort in the hands of all, and the produce of this check, originally
paid to Lord Cochrane, is found in the desk of this man.
I have been led aside by reading the affidavit to these observations on
the dates. To return, the affidavit was, as I have already stated, sworn
March 11th 1814, by which time it might well be supposed that De
Berenger, if he made proper speed, had got out of the kingdom. The
affidavit proceeds thus; "I, Sir Thomas Cochrane, commonly called Lord
Cochrane, having been appointed by the Lords Commissioners of the
Admiralty to active service, (at the request, I believe, of Sir
Alexander Cochrane) when I had no expectation of being called on, I
obtained leave of absence to settle my private affairs, previous to
quitting this country, and chiefly with a view to lodge a specification
to a patent," there is no doubt that patent exists, and that there is a
true transaction as to the patent; but whether it be introduced here as
a colour, and to draw off your attention from other matters is another
point. "That in pursuance of my daily practice of superintending work
that was executing for me, and knowing that my uncle, Mr. Cochrane
Johnstone, went to the city every morning in a coach, I do swear, on the
morning of the 21st of February, (which day was impressed on my mind by
circumstances which afterwards occurred) I breakfasted with him at his
residence in Cumberland Street, about half past eight o'clock, and I was
put down by him (and Mr. Butt was in the coach) on Snowhill, about ten
o'clock," therefore these three gentlemen who had so much to do on that
day, were brought together, and had an opportunity of communicating
together at least at this time. They go on to the city together, after
having, it may be supposed had so much of communication together as was
necessary for the current business of the day, whatever that business
was. "I had been about three quarters of an hour at Mr. King's
manufactory, at No. 1, Cock Lane, when I received a few lines on a small
bit of paper, requesting me to come immediately to my house, the name
affixed, from being Written close to the bottom, I could not read;" that
was certainly a very pointed observation which was lately addressed to
you, by the learned counsel for the prosecution, that the name which he
says he could not read, would not in all probability have been written
at the bottom, for he had finished the note once, and when it was sent
back to him there was space enough still left for him to write something
more; for the servant says, he added something more afterwards,
therefore it was not from its being crowded at the bottom, unless it be,
that he had not signed any name till quite the last, and after he had
written the addition which Lord Cochrane mentions, "the servant told me,
it was from an army officer, and concluding that he might be an officer
from Spain, and that some accident had befallen to my brother, I
hastened back, and I found Captain De Berenger." Now certainly, his
anxiety about his brother, if true, was a very good motive for his
returning, but I addressed some questions to the witness on this
subject; I thought it very likely if that was the motive which induced
Lord Cochrane to return, that he should have disclosed that motive to
the person who brought the note, especially as he was a servant who had
been seventeen years in the family; nothing could be more natural than
to say, "Thomas, I hope there is no bad news from my brother, your old
master;" no such thing passes, but--"Well, Thomas, I will return," is
all that he says to him; he does not mention any thing about any
apprehension as to his brother. His brother, as appears by the returns
which have come home, had been wounded, or was upon the sick list; but
it does not appear that he had then actually received any communication
upon that subject; and which, if he had received any such, might have
been expected to be proved, and might easily have been so. That his
brother was in fact upon the sick list appears, but not that he then
knew him to be so; nor did he intimate to the servant that came, one
word of apprehension about his brother, or any mention of his health or
of him, but came back immediately on receiving this note. Now, with the
acquaintance he had with De Berenger, no doubt such application had been
made to get him appointed as is proved; and he must have been, one would
suppose, familiar with his hand-writing; and _if so_, he could have had
no doubt who was the person from whom he received this note, and whom he
was to meet when he should get home; but he says, "I found Captain De
Berenger, who, in great seeming uneasiness, made many apologies for the
freedom he had used, which nothing but the distressed state of his mind,
arising from difficulties, could have induced him to do; all his
prospects, he said, had failed, and his last hope had vanished of
obtaining an appointment in America. He was unpleasantly circumstanced
on account of a sum which he could not pay; and if he could, that others
would fall upon him for full £.8,000. He had no hope of benefitting his
creditors in his present situation, or of assisting himself. That if I
would take him with me, he would immediately go on board and exercise
the sharp-shooters (which plan I knew Sir Alexander Cochrane had
approved of;)" and there is no doubt that Sir Alexander Cochrane had, on
some application of Mr. Cochrane Johnstone or Lord Cochrane, applied for
him, but that for reasons not communicated to us, such application had
not been successful, and it had not been thought fit to appoint him.
Then he says, "That he had left his lodgings, and prepared himself in
the best way his means allowed. He had brought the sword with him which
had been his father's; and to that and to Sir Alexander, he would trust
for obtaining an honourable appointment. I felt very uneasy at the
distress he was in, and knowing him to be a man of great talent and
science, I told him I would do every thing in my power to relieve him;
but as to his going immediately to the Tonnant, with any comfort to
himself, it was quite impossible; my cabin was without furniture; I had
not even a servant on board. He said he would willingly mess anywhere; I
told him that the ward-room was already crowded; and besides, I could
not with propriety take him, he being a foreigner, without leave of the
Admiralty. He seemed greatly hurt at this, and recalled to my
recollection certificates which he had formerly shewn me from persons in
official situations; Lord Yarmouth, General Jenkinson and Mr. Reeves, I
think, were amongst the number; I recommended him to use his endeavour
to get them or any other friends to exert their influence, for I had
none; adding, that when the Tonnant went to Portsmouth, I should be
happy to receive him; and I knew from Sir Alexander Cochrane, that he
would be pleased if he accomplished that object; Captain Berenger said,
that not anticipating," now this is very material, "any objection on my
part, from the conversation he had formerly had with me; he had come
away with intention to go on board and make himself useful in his
military capacity; he could not go to Lord Yarmouth, or to any other _of
his friends in this dress_;" what is the dress that Lord Cochrane
represents as then belonging to him? a green dress? had he a green
dress? he must have had that dress with him whatever it was in which he
had come in the coach; he says that would excite suspicion; why, if he
had really a green uniform, that would not have excited observation or
suspicion; it was the very uniform he ought to have worn; but if it was
that in which he had got out of the coach, and it does not appear that
he had any means of shifting himself; if he had on an aid-de-camp's
uniform with a star, and so presented himself to Lord Cochrane, how
could Lord Cochrane reconcile it to the duties he owed to society, and
to Government, and to his character as a gentleman and an officer, to
give him the means of exchanging it; it must be put on for some
dishonest purpose; this red coat and star, and all this equipment, must
have appeared most extraordinary, and must have struck Lord Cochrane
most forcibly, if he was not aware of the purpose for which it was used;
"that he could not go to Lord Yarmouth, or to any other of his friends
in this dress, or return to his lodgings, where it would excite
suspicion (he was at that time in the Rules of the King's Bench); but
that if I refused to let him join the ship now, he would do so at
Portsmouth; under present circumstances, however, he must use a great
liberty, and request the favour of me to lend him a hat to wear instead
of his military cap. I gave him one which was in a back room, with some
things that had not been packed up; and having tried it on, _his uniform
appeared under his great coat_; I therefore offered him a black coat
that was laying on a chair, and which I did not intend to take with me.
He put his uniform _in a towel_, and shortly afterwards went away." If
he put that uniform in a towel, he must have pulled it off his back, for
it was on his back before, and then Lord Cochrane, one would think, must
have seen him do it; what business had this man with a red aid-de-camp's
uniform? he had no business to wear any such garb, he was almost as much
out of his proper character, as I should be if I appeared habited in the
particular dress and professional habits of an officer or a clergyman;
but it does not rest there, for he himself lends to this person the
immediate means of his concealment, he lets him have a hat instead of
his _laced cap_; and what had such a cap to do with a sharpshooter's
uniform? upon seeing him appear habited as all the witnesses represent
him to have been in his way from Dover to Green-street,
Grosvenor-square, would not any one who had known him before have
immediately exclaimed, where have you been, and what mischief have you
been doing in this masquerade dress. It is for you, gentlemen, to say
whether it is possible he should not know, that a man coming so
disguised and so habited if he appeared before him so habited, came upon
some dishonest errand, and whether it is to be conceived a person should
so present himself to a person who did not know what that dishonest
errand was, and that it was the very dishonest errand upon which he had
been so recently engaged, and which he is found to be executing in the
spreading of false intelligence, for the purpose of elevating the
funds, if he actually appeared to Lord Cochrane stripped of his great
coat, and with that red coat and aid-de-camp's uniform, star and order,
which have been represented to you, he appeared before him rather in the
habit of a mountebank than in his proper uniform of a sharpshooter.
He says, "he went away in the hackney coach I came in, which I had
forgotten to discharge in the haste I was in. The above conversation is
the substance of all that passed with Captain De Berenger, which, from
the circumstances attending it, was strongly impressed upon my mind; I
most positively swear that I never saw any person at my house resembling
the description, and in the dress stated in the printed advertisement;"
which I suppose will be read, "of the members of the Stock Exchange; I
further aver, that I had no concern directly or indirectly in the late
imposition, and that the above is all that I know relative to any person
who came to my house in uniform, on the 21st day of February before
alluded to, Captain De Berenger wore a grey coat, a green uniform, and a
military cap;" now did he wear a green uniform? They are at issue upon
the dress then worn by him; if he had not this dress on, what other had
he? And if he had the green one on, what true or probable reason existed
for the change of that? the unfitness of appearing in it before his
commanding officer, Lord Yarmouth, is negatived by Lord Yarmouth
himself; supposing him to have appeared in any disguise, it is the
conduct of an accomplice, to assist him in getting rid of his disguise,
to let a man pull off at his house, the dress in which (if all these
witnesses do not tell you falsely) he had been committing this offence,
and which had been worn down to the moment of his entering the house,
namely, the star, a red coat and appendant order of masonry, seems
wholly inconsistent with the conduct of an innocent and honest man, for
if he appeared in such an habit, he must have appeared to any rational
person, fully blazoned in the costume of that or of some other crime,
which was to be effected under an assumed dress, and by means of fraud
and imposition; this circumstance is therefore very important for your
consideration; the judgment to be formed upon it must rest with you, and
you will no doubt consider, whether supposing him to have appeared
before Lord Cochrane, dressed as the witnesses represent him to have
antecedently been, the circumstance of his so appearing in a dress
proper for the commission of such a fraud, as appears to have been
committed on that day, by attracting a false belief of the person being
a messenger bringing great public news, coupled with the fact of his
afterwards walking off with that dress in a bundle, instead of having
that dress upon his back, and also with the evidence given in order to
prove a connexion with the notes afterwards found in De Berenger's desk,
you are not satisfied that he was privy to and assisted in the scheme of
effecting a deception upon the public.
Gentlemen, I have taken this subject a little out of its place in
adverting to it here. To return--
Mr. Lavie says, "I received the parcel, (_that produced by Odell_), in
the Stock Exchange room, in which Mr. Baily and Mr. Wade were present."
Mr. Wade says, "I am Secretary to the Stock Exchange, in company with
other gentlemen, I received from Odell a bundle, said to be found in the
river, which was given to Mr. Lavie; the star was then in two pieces,
and was afterwards sewn together, for the purpose of being exhibited."
Then Solomons, who originally sold the dress, is called; he says, "I am
a military accoutrement-maker; we have a shop at Charing Cross, and
another at New Street, Covent Garden. On Saturday the 19th of
February," the very day before this is put into execution, with the
intervention of the Sunday; "a military dress was purchased at my house;
a military great coat and foraging cap made of dark fur, with a pale
gold border; I have since had a cap and a coat made exactly resembling
them, as nearly as I could possibly recollect." He had them made I
suppose in order to exhibit them. "The person purchased at our house in
New Street, something which came to Charing Cross shop, as being ordered
at New Street, and the person came to Charing Cross and took it away;
there was a military great coat, a military staff coat, such as persons
on the staff wear, the uniform of an aid-de-camp. I have examined the
fragments, the star and the badge, I believe those to be the same, we
had the very fellow-star to that; except those two, I do not know that I
ever saw any star like them, the badge I did not take much notice of;"
that is the silver masonry ornament, "I have examined these fragments,
and they appear to be part of the same materials, the same description
of embroidery, the same description of coat; I had a conversation with
respect to the great coat, and also the cap; he observed that they were
wanted for a person who was to _perform the character of a foreign
officer_, they were to be sent into the country that evening, he took
them away with him in a coach, he had a small portmanteau with him;" you
remember there is a leather portmanteau spoken of; "he did not beat me
down in the prices, or make any observations about money, but merely
paid for them, I was conversing with him for a short time, I have been
since introduced to a person at the Parliament-street coffee house; I
cannot undertake to say it was the person, in point of appearance he
resembles him, except that the person I served had whiskers." Now if you
recollect the history of the whiskers, it is established that he had
worn whiskers, though the woman who endeavoured to make us believe that
he slept at home on the Sunday night, said she had not so much as
observed (though she had been his servant two years and a half) whether
he had any whiskers. It appears to me that is a circumstance in the
countenance of a person which one would very much observe; he says, "the
person I saw in Parliament-street had not whiskers;" he then looked at
Mr. De Berenger, and said, "this is the person I was introduced to at
the coffee house in Parliament-street; I really cannot undertake to
swear that he is the person, the gentleman that represented himself to
be Mr. Wilson, was dressed in a different manner, he had black whiskers,
and from that circumstance I could not possibly undertake to swear it
was the same person, it resembles the person, except that the person I
served had whiskers, I cannot say that I believe it is the person, or
that it is not."