My Lords, scarcely recovered as I am from the shock, which I experienced
on hearing of the verdict pronounced against me at the late trial, I
must crave your utmost indulgence, not only on that account, but also
because I am unacquainted with the proceedings and forms in Courts of
Law. I feel it essentially necessary, and I trust I shall make it
evident to the minds of your Lordships, that it is essentially necessary
to the cause of justice, that there should be a revision of the
proceedings that have been lately had, and that a new trial should take
place, at least as far as I am concerned and implicated in that
transaction.
It has been my misfortune to suffer from an intimacy, or rather an
acquaintance, with men, over whose conduct I could have no control
whatever. I have been informed, that it is not competent for my counsel
to rise up on the present occasion to ask your Lordships to grant me a
new trial, and therefore it is necessary I should address you myself.
_Lord Ellenborough._ Your Lordship must have been misinformed on the
subject; any application you wish to address to the Court may be
addressed to them by counsel, and perhaps with more convenience to
yourself.
_Lord Cochrane._ I understood there was the case of a conspiracy, in
which it had been held that a revision of the case, and a new trial
could not be moved for, unless all the defendants appeared in Court.
_Lord Ellenborough._ That would be the same, whether the application
was made by counsel or by yourself.
_Lord Cochrane._ It is only for the purpose of preventing my counsel
from trespassing on the rules of the Court, that I have adopted this
mode of proceeding, and I trust--
_Lord Ellenborough._ I am afraid, my Lord, we cannot hear you, unless
all the parties are present in Court. That is the rule of the Court, and
we have acted on it so lately as this very morning.
_Lord Cochrane._ I have to complain, that evidence was not brought
forward on the late trial, which was extremely material to shew my
innocence. If your Lordships will permit me to read the evidence to
which I allude--
_Lord Ellenborough._ It will answer no beneficial purpose, because we
cannot advert to what you are now stating, unless the other parties
convicted are now in Court.
_Lord Cochrane._ If your Lordships will grant me permission to read the
statement, you will be better able to judge of the propriety or
impropriety of granting my application.
_Mr. Justice Dampier._ By the rules of the Court it cannot be; your
Lordship has been informed of the practice of the Court, and from that
practice, the Court has no power to depart.
_Lord Ellenborough._ The practice of the Court is exceedingly
beneficial, and must be adhered to by us.
_Lord Cochrane._ My Lords, I have now in my hands several affidavits
that will prove my innocence, if the Court will hear them. They are very
short.
_Lord Ellenborough._ We have announced to your Lordship the rule of
practice, and we are extremely unwilling to give you any pain, but we
cannot forego the regular practice of the Court. We could not do it on
the application of Counsel, and no more can we do it upon your
application.
_Lord Cochrane._ I shall be exceedingly brief. The facts, which I shall
prove by these affidavits, will sufficiently justify me; and it will
redound to the honour of the judges of this land, to suffer me in this
instance, though contrary to the practice of the Court, to shew my
innocence; when those who are guilty of this transaction, and over whose
conduct I have no control, dare not appear in the place where I now
stand.
_Lord Ellenborough._ We must abide by the rules of the Court. If we give
way to the importunity of one, we must give way to the importunity of
all; we must administer the same justice to all, without distinction of
persons.
_Lord Cochrane._ I beg only to state----
_Lord Ellenborough._ It would be idle to announce to your Lordship, that
there is such a rule of practice as that which I have mentioned, unless
we meant to abide by it; the rule is, that no application can be made
for a new trial, unless all the persons convicted are here: we have
acted on that rule this day; and if we were now to adopt a different
rule, it might very properly be said, there was one rule for the poor
and another for the rich.
_Lord Cochrane._ My Lords, I have briefly to state these facts, that
before the late trial, so conscious was I of my innocence, that I did
not think it necessary to instruct counsel, as several gentlemen in
court know. I never read over the brief on the subject, till after the
trial, when I found a very gross error had crept into it, with regard to
the dress of the stranger who called at my house; and my servant is in
consequence represented as having admitted that he was dressed in a red
coat. The fact was, that being questioned as to the colour of the coat,
he stated that he appeared to be an army officer, to which he very
naturally attached the idea of a red coat, for the servants did not see
it.
Court of King's Bench.
Monday, _20 June 1814_.
_Mr. Gurney._ I move your Lordships for the Judgment of the Court in the
case of the King _v._ De Berenger, and others.
[_The Officer called the Defendants, who appeared, excepting
the Honourable Andrew Cochrane Johnstone, and Alexander
M'Rae._]
_Mr. Serjeant Best._ Upon this occasion I appear only as Counsel for Mr.
Butt; and before I make the motion which I feel myself called upon,
under the circumstances of this case to make, I take the liberty to
suggest to your Lordships, that if I should not succeed in my motion in
arrest of judgment, there is a fact which was not proved at the trial,
but which it was necessary to prove for the purpose of convicting these
defendants upon any count of the indictment, in which it forms a
material averment, namely, that there was war between England, and the
Allies of England, and France.
_Lord Ellenborough._ I am afraid there are too many statutes which speak
of war with France, for the Judges to allow themselves not to have
cognizance of that objection.
_Mr. Serjeant Best._ But there is none, my Lord, which refers to any war
between England, and the Allies of England, and France. Unfortunately it
has been only of late that we have had Allies. I make this application
on the part of Mr. Butt only, and I submit to your Lordships upon the
counts on which this defendant has been convicted----
_Lord Ellenborough._ You appear now only for Mr. Butt?
_Mr. Serjeant Best._ I do, my Lord.
_Lord Ellenborough._ I have made a minute, that on the trial you told
me you were Counsel for the second, third, and fourth, defendants, Lord
Cochrane, Mr. Cochrane Johnstone, and Mr. Butt.
_Mr. Serjeant Best._ I am not now Counsel for Lord Cochrane, I am moving
merely for Mr. Butt.
_Lord Ellenborough._ That is a new proceeding, that Counsel shall
renounce some clients, in order to serve others.
_Mr. Serjeant Best._ My Lord, Lord Cochrane has desired me not to move
on his behalf; and I may state so much for him, that he has no intention
to move in arrest of judgment. My other client, Mr. Cochrane Johnstone,
is not here.
_Lord Ellenborough._ If you move in arrest of judgment for one, all have
the benefit of it.
_Mr. Serjeant Best._ My objections are three; first, taking the third
count as it stands, (and the objections apply to every successive count
in the indictment) that there is no body of crime alleged, no offence
known to the law, the raising the price of the public funds not being
necessarily a crime; In the second place, that if there be any crime,
which is alleged, the persons who are to be affected by that crime are
not particularized; My third objection is, that it is stated, that the
object of the conspiracy was, to raise the price of the public funds of
_this kingdom_: this kingdom being now the United Kingdom of Great
Britain and Ireland, I conceive there is no kingdom of England, but that
the kingdom of England is merged in the United Kingdom of Great Britain
and Ireland, and I humbly conceive, nothing that is here charged has
reference to any funds and government-securities, except the funds and
government-securities of that part of the United Kingdom of Great
Britain and Ireland, called England.
My Lords, I am aware of the extent to which the decisions pronounced on
this subject have carried the doctrine, with respect to conspiracy; but
I conceive it will not be found there is any adjudged case which goes so
far as to reach this transaction, taking it as an abstract proposition,
that the conspiracy was, to raise the price of the government funds of
this country. Unless your Lordships can pronounce that the raising the
price of the government funds of this country is a crime of itself, a
conspiracy to raise the price of those funds cannot be a crime by
itself; but in order to make it a crime, it is necessary to state some
particular circumstance which gives it a criminal character.--I conceive
nobody will be found to argue, that the raising the price of the public
funds, without some side object, must be mischievous to the country, and
therefore a crime; so far from that being the case, I conceive the
higher the prices at which the government funds can be kept, except in
particular cases, the better for the country, because it is upholding
the credit of the country.
_Mr. Justice Le Blanc._ It is stated, that they were to be raised on a
particular day.
_Lord Ellenborough._ By false reports and rumours.
_Mr. Serjeant Best._ An intention of doing that on a particular day, may
be either a meritorious or a criminal action; but what I submit to your
Lordships, is, that of itself, it is neither the one nor the other; it
is therefore necessary to put on the record something which shall bring
the fact within the purview of the law. It is not stated upon this
record, that the defendants were possessed of any funds, that they were
desirous of selling those funds, and that therefore they meditated a
fraud on the particular persons to whom they should sell their funds, by
raising the price;--it is merely stated, that the object was to raise
the price of the funds, which I submit to your Lordships may be
commendable or criminal.
One can conceive many circumstances in which this might be stated to be
a public mischief, and some such circumstances were stated by my learned
friend, who very ably opened this prosecution upon the trial. If the
public funds were raised in price on a day on which the commissioners
for reducing the national debt would make purchases, that would be an
injury to the country, by the commissioners being enabled to purchase a
smaller amount of stock for the same amount of money; but there is no
allegation of the kind upon this indictment, and in no other way, do I
conceive, could the public be injured. If the public had been injured,
it was enough to have stated, that what was done, was done with a view
to the injury of the public; but all that I find stated upon the record,
is, that the defendants conspired and agreed together to raise the price
of the public funds upon a given day; and the prosecutors knew there was
no purchase made by the commissioners for reducing the national debt on
that day; because, as I understand the fact to be, they never purchase
on a Monday;--however, all that is material to me is, that the
transaction is not so charged upon the face of the indictment. If I am
right in this, I am persuaded your Lordships will be of opinion, that
this is not an indictable offence.
If I am to be told, there is a distinction made between conspiracy and
other offences, I submit to your Lordships, no distinction which has
ever been made goes to a length which reaches the present case. I am
aware many acts are made criminal, being accomplished by conspiracy,
which accomplished by an individual only, would not be the subject of
judicial animadversion; but I can find no case (and I have very
carefully looked into all of them) which carries the principle on which
the doctrine relating to conspiracy is founded further than this; that
in conspiracy, though the means may be lawful, yet the end must be
unlawful, either as it is mischievous to the public or to individuals;
and I can state no case, in which parties have been held guilty of
conspiracy, where the end they have had in view has not been either
mischievous to the public, or at least to a specified class of
individuals.
Looking back to the earlier statutes and cases on the subject of the law
regarding conspiracy, your Lordships must collect, that neither the
legislature nor the judges of the land had the least idea of embracing
such a transaction as this, within their view of conspiracy. The older
cases, in which the doctrine upon conspiracy has been applied, have been
cases described by the statute of 21st Edward I. of persons who have
conspired to instigate a criminal prosecution against an innocent
individual, and of persons who, for the purpose of supporting their
unlawful enterprises, have kept retainers in the country. In modern
times, the decisions have come nearer to the present case; but I think I
can satisfy your Lordships, there is none that reaches it.
The case in which the doctrine relating to conspiracy has travelled on,
if I may so say, embracing a larger compass of acts, is that of the King
_v._ Edwards, 8 Modern Reports, 320. In that case the doctrine laid down
is, that a conspiracy to do a lawful act for effecting an unlawful end,
is a crime. If the end be unlawful in this case, undoubtedly the
endeavour to accomplish it was a crime. But I submit to your Lordships,
as the act is stated upon the Record, the end is not unlawful, and that
no case can be found which shews, that the end which these parties had
in view was an unlawful end. Upon the principle of the case which I have
mentioned, which goes far beyond the former cases on this subject, if I
am right in stating, that _per se_ there is nothing criminal in raising
the price of the public funds, something must be added upon the record
to make that act a crime.
Another case is that of The King _v._ Starling, 1 Siderfin, p. 174. It
was an indictment for a conspiracy to depress what was called the
gallon-trade, (that is, the practice of selling beer by the gallon) and
thereby to cause the poor to mutiny, and to injure the farmers of
excise; that was stated as the object of the conspirators. They were
acquitted of that part of the charge which alleged an intention to cause
the poor to mutiny; but found guilty of a design to injure the farmers
of excise. The reporter says, after many debates it was adjudged, not
that a conspiracy to injure the farmers of excise, speaking of them
generally, was a crime--but, that the verdict relates to the
information, the information relates to the excise, which is part of the
revenue of the king; and to impoverish the farmers of excise would make
them less able to pay the king his dues. And so the Court, in giving
judgment, say, we must look at the record, to see if we can find out
that what is charged upon the defendants be that which must necessarily
produce a public mischief; and they say it does in this way; that the
verdict relates to the information, and the information to the excise,
which is part of the revenue of the country; and, as to impoverish the
farmers of excise, would render them less able to pay the king his dues,
there appears a public mischief on the face of the record itself. This I
take to be a strong authority in my favour; for if the Court, after many
debates as it is stated, and having given the subject every possible
attention, came to the conclusion, that they were obliged to look at the
record, to see whether the case stated on the record was one which
necessarily connected the act done with some public mischief, we must
necessarily infer from this, that the Court would have been of opinion,
that unless that necessary connexion was established by the statement on
the record, the judgment ought to be different. If I am not correct in
this position, the Court had no occasion to look to the verdict and see
whether it related to the information, and to the information, to see
whether it had a relation to the revenue: the Court would have said, we
must give judgment against the defendants, because it is stated upon
this record, that the object of the defendants was, to impoverish the
farmers of excise. It is by tracing back the thing itself, by shewing
that the farmers of excise are thus made less able to pay their debts to
the government, and therefore that the government was to be injured,
that the act is constituted an offence.
There is another case, in Salkeld, 174, The King _v._ Best. The judgment
of the Court in that case is, that several persons may lawfully meet and
consult to prosecute a guilty person; otherwise, to charge a person who
is innocent, right or wrong, would be indictable. The inference is, that
upon a charge of conspiracy to do an act which in itself is perfectly
innocent, which is not indictable, you must state something upon the
face of the record, shewing a mischief connected with it, to make it
indictable. I submit to your Lordships, there is nothing upon the face
of this record, which does shew any mischief connected with the act
which is made the subject of charge. In conspiracy as in every other
offence, the means may be lawful; but in conspiracy, the end must be
unlawful. It is this which constitutes the only distinction between
cases of conspiracy and of any other crime; that although the means may
be lawful, the end must necessarily be unlawful and mischievous. I say,
it is impossible for your Lordships to collect from any part of this
record, that the end sought to be obtained by these defendants was
unlawful, as against any Act of Parliament or the positive decision of
any Court; or unlawful, as generally mischievous to the public.
It is stated indeed upon these counts, that the act was mischievous to
certain individuals; and if the individuals had been named, that would
have answered my objection. But I submit to your Lordships, in support
of the second proposition which I stated, that this offence, if it be
any, is alleged in too general a way to convict any of the defendants.
It would have been otherwise, if it had appeared that they were actuated
by any malicious motive against those individuals, or had any clear
intention of benefiting themselves at the expense of those individuals;
and I may with safety to my client concede this, though I am not driven
to it. On the contrary, I beg to state, it does not appear on this
record, that the defendants could possibly gain any thing by what they
are accused of having done; for it is not stated upon any of the counts,
nor is it the fact, that they possessed one sixpenny worth of stock from
the sale of which they could derive an advantage: they were therefore
doing mischief without any purpose to answer by it.
_Lord Ellenborough._ Brother Best, was it possible to state that their
purpose was to injure certain individual persons who should purchase
stock, when by no possibility could they know who the persons were that
would become purchasers? If that could have been stated, can you suggest
any name which in any way might have been inserted?
_Mr. Serjeant Best._ I submit to your Lordship it might have been
stated; and the evidence in the cause helps me to suggest an answer to
your Lordship's question. Your Lordship will remember, that evidence was
given of the accountant-general of the Court of Chancery having made
purchases of stock on this day; it might have been stated on the face of
this record, that it was known the accountant-general of the Court of
Chancery would purchase stock on the day in question, for he purchased
most days, and that the offence was committed with a view to injure the
said accountant-general, or the persons in whose behalf he purchases.
_Lord Ellenborough._ I do not know, that in the course of his office he
is directed to purchase on account of certain named individuals, on a
given day; if he is not, even so the allegation could not be precise.
_Mr. Serjeant Best._ The stock is purchased, my Lord, to the credit of a
particular cause, the accountant-general being the agent in the
transaction for the suitors in that cause. Therefore the allegation
might have been, that it was to injure the accountant-general, in his
character of agent for those persons on whose behalf he purchased stock
on the particular day. And this brings us to the true character of
conspiracy. I submit to your Lordship, this act could only be made
conspiracy, by shewing that the defendants possessed stock, and by
stating on the indictment, that possessing stock, they conspired to
raise the price of the funds on a particular day, and that when raised,
they sold their stock to certain persons specified. Suppose they knew of
persons who were going to purchase on this day, and with a view to make
those persons pay more than they otherwise would, they did that which is
charged upon this indictment; that would clearly be an indictable
offence. It is not the difficulty of bringing the case within the law
that furnishes an answer to the objection; if the law is defective, your
Lordship would recommend it to the Legislature to remedy the defect, by
making a new law.
_Lord Ellenborough._ Impossibility is some answer in point of law.
_Mr. Serjeant Best._ Your Lordships may be protecting gamblers as
infamous as any of these defendants; you may be giving your support to
prosecutions instituted by one set of gamblers against another, if this
indictment is supported. A fair holder of stock could have no difficulty
in coming by indictment, and stating, I was compelled by circumstances
to lay out a sum of money in the public funds on a given day, the day
on which this transaction took place, and I paid so much per cent. more
for what I bought. If it is necessary to constitute conspiracy, that the
intent be to injure that person who in the event is injured, then it is
impossible to support this indictment. I put it most strongly against my
clients when I say, they meditated a fraud upon all who should purchase
stock on this day; but to use the criminal law of this country, for the
protection of those who honestly purchase stock, and not to support a
prosecution brought by one set of gamblers against another, your
Lordships will require it to be stated on the face of the indictment,
who they were that were injured.
_Mr. Justice Bayley._ Suppose the conspiracy had been stated in the way
it is, but the allegation had gone on; that by reason of the said
conspiracy, A. B. and C. who on that day were obliged to purchase stock,
were obliged to pay a larger sum than they otherwise would have paid?
_Mr. Serjeant Best._ That would have answered my objection, and that is
the way in which it should have been stated; because then your Lordships
would see, you were raising the arm of criminal justice to protect those
who were the objects of its protection.
_Lord Ellenborough._ Your argument goes upon this supposition, that the
description of persons to be affected by a criminal act, may lessen its
criminality, which it does not.
_Mr. Serjeant Best._ But I submit to your Lordship, there must be
something to be gained on the part of the actors, moving them to injure
those who are capable of being injured by the act which is done. No such
thing is stated upon any part of the indictment. A conspiracy may be
complete without any act, but there must be an intention. I say, the
intention here, is too generally stated; strike out all but the words,
"conspired to raise the price of the public funds," and I ask your
Lordships whether it would be possible to pronounce any judgment upon
it.
_Mr. Justice Dampier._ How could the object have been stated with more
particularity, with reference to a future event, than that it was to
raise the price of the public funds?
_Mr. Serjeant Best._ I do not state it to be necessary that any damage
should actually follow, but damage must be meditated by the
conspirators, either a damage which aims at the public at large, or at
some individual. It could not have been stated, nor is it stated, that
any damage was aimed at the public at large; was any meditated against a
part of the public? they must be individuals.
_Mr. Justice Dampier._ All the public could not be named; and
individuals could not be named, because of the impossibility of knowing
the individuals.
_Mr. Serjeant Best._ I submit to your Lordship there could be no
difficulty in that. If the indictment had been preferred before the 21st
February, your Lordship's observation would be unanswerable; but after
that period, the prosecutors could have no difficulty in obtaining the
names of individual purchasers from the books of the Stock Exchange.
_Mr. Justice Dampier._ The crime was complete before the 21st of
February.
_Mr. Justice Le Blanc._ If the conspiracy was, by false rumours to raise
the price of the public funds on a certain day, with a view to oblige
persons who should purchase into the funds on that day to pay an
increased price, the crime would be complete if the funds were raised on
that day, though no person should purchase a halfpenny-worth of stock;
in like manner as conspiring to raise the price of commodities in a
market, though no person should purchase, would still be a crime.
_Mr. Serjeant Best._ The commodities in a market are articles of
necessity, which, I apprehend, makes a distinction.
_Lord Ellenborough._ Whether it be an article of necessity, or if
universal sale, comes to the same thing. Besides, as to not stating the
multitude, one would think we had forgotten the number of cases which
have been decided on charges which are in their nature multitudinous; as
for instance in barratry, or the inciting persons to institute and
maintain suits; in those instances you need not state the individuals
injured.
_Mr. Serjeant Best._ The instances of barratry and of common scolds, I
believe, are the only exceptions.
_Lord Ellenborough._ By no means; I remember a case in which it was
held, that where the circumstances cannot be conveniently specified upon
the record, the necessity forms the exception.
_Mr. Serjeant Best._ But in all those cases your Lordship will find the
excuse is stated upon the record; as ignotum, where an unknown person
has been murdered.
_Lord Ellenborough._ In this case the nature and reason of the thing
suggest the excuse, or one must reject one's common sense. The nature
and reason of the thing form an exception, if it could be necessary to
state the name of an individual, as having suffered from an act of this
kind; but it is the tendency of the act, not the success of it, that
constitutes the crime. If there had been an apprehension of pestilence
or commotion, which made it unsafe to resort to the Stock Exchange on
the day on which the fraud was practised, the crime would have been as
complete by the conspiracy, as it was by the damage sustained by
individuals who suffered under it.
_Mr. Serjeant Best._ In whatever way your Lordships dispose of these
objections, I shall be satisfied. I am sure your Lordships will excuse
my mentioning, in a case of this sort, The King v. Robe, 2d Strange, p.
999, though it is not a case of conspiracy.
_Lord Ellenborough._ No doubt they ought in that case to have specified
the persons, they had the means of stating every one of them. The
offence did not consist in the combination, but in doing the very act
they combined to do.
_Mr. Serjeant Best._ Another objection which applies to all the counts
is, that it is stated, the intention was to produce a great rise in the
Government funds of this kingdom. It appears clearly on the face of this
record that the intention was very different; in fact there are no
general Government funds belonging to the United Kingdom of Great
Britain and Ireland.
_Mr. Justice Bayley._ But there are British and Irish funds?
_Mr. Serjeant Best._ Certainly, but that is not the allegation; the
allegation is, that it was with a view to raise the funds of this
kingdom, which supposes there are general funds of Great Britain and
Ireland; whereas the funds of each are entirely distinct, and of that
your Lordships will take notice, because there are Acts of Parliament
which speak of the British and Irish funds separately. Therefore I
submit to your Lordships, it is impossible those defendants could
contemplate the mischief with which the count concludes.
_Lord Ellenborough._ In a large sense, the Irish funds are funds of this
kingdom, and so are the British; they are each a part of the resources
and means of the United Kingdom.
_Mr. Serjeant Best._ It is impossible they should have had in view the
Irish funds.
_Lord Ellenborough._ Why not? I believe the Irish funds are saleable
upon the Stock Exchange as well as the British. The interest is payable
in this country, and the great money-market is here; and I believe full
as much is done in the Irish funds here as in Ireland.
_Mr. Serjeant Best._ I am unacquainted with the fact; still I insist,
that those funds could not be called the funds of this kingdom?
_Lord Ellenborough._ I think they could not be correctly called
otherwise; they are funds of the kingdom in a large sense.
_Mr. Serjeant Best._ A very large part of the Irish funds were not
raised by the United Parliament; and they have been kept distinct ever
since the Union.
_Lord Ellenborough._ They may be distinctly arranged, and the
application of them may have been in different ways; but still they are
a part of one whole, they are a part of the stock and revenues of the
United Kingdom.