 |
Mr. Scarlett. Yes, my Lord, it is not material to my purpose to shew how Mr. Butt made this advance to him.
Lord Ellenborough. If it was a loan and you rely upon it as such, you must shew in what it was?
A. The L.450. was in a check.
Lord Ellenborough. Then that check must be shewn.
Mr. Scarlett. Mr. Butt was not present, was he?
A. Not that I know of.
Q. At what time Lord Cochrane gave these two L.100. notes to Mr. Butt you do not know, do you?
A. No.
Q. But it was not by Lord Cochrane's desire you took them to the Bank.
A. No; by Mr. Butt's.
Mr. John Bilson sworn;
Examined by Mr. Gurney.
Q. Look at these two L.100. notes; on the 24th of February; were those two notes of L.100. each brought to the Bank to be exchanged for one pound notes?
A. They were entered for payment in the Bank on that day.
Q. Have you there the book in which your own entries are made, or those which are made by Mr. Northover?
A. I have the book in which is my own hand-writing.
Q. What notes did you pay this in?
A. One pound notes.
Q. You make the entries, and the other clerk gives over the notes?
A. Yes.
Q. Have you all the numbers there?
A. Yes, I have.
Mr. Gurney. I am sorry to trouble your Lordship with having these numbers read; they do not happen to be in sequence. Will you go over those numbers?
A. 27th August, No. 1,048.
Lord Ellenborough. You had better see what you apply your proof to, otherwise he must go through the list.
Mr. Gurney. I am told these clerks have examined all these notes. You have looked over all these notes found in Mr. De Berenger's trunk, have you not?
A. I have not looked over them to-day; we looked over them before the Grand Jury.
Q. Look over that parcel, and tell me whether you paid all that parcel [handing a parcel of bank notes to the witness.]
[The Witness and Mr. Thomas Northover examined the notes.]
A. Yes; those were paid.
Q. There are forty-nine in number?
A. Yes.
Lord Ellenborough. Were all those forty-nine part of the two hundred pounds that were given in exchange for the two L.100. notes?
A. They were.
A Juryman. What were the numbers of the two L.100. notes?
A. No. 16,601 and No. 18,468.
Mr. Hilary Miller sworn;
Examined by Mr. Gurney.
Q. You are a clerk in the Bank?
A. Yes.
Q. Have you forty-seven one pound notes that have come into the bank?
A. I have fifty-seven [the witness produces them.]
Mr. Gurney. (to Bilson and Northover) Look and see whether those fifty-seven are also part of the same payment?
Miller. I believe that part of those notes were received at another period.
Mr. Northover. They do not appear to arise from this transaction.
Mr. Gurney. I will state to your Lordship the effect of this; perhaps it is hardly worth pursuing; they came into the bank from various quarters, and Mr. De Berenger's name is upon them, but not in his hand-writing.
Mr. Bilson. Here are some of them in this account.
Lord Ellenborough. They do not appear to be evidence.
Mr. Gurney. Then I will not pursue that.
Thomas Christmas sworn;
Examined by Mr. Gurney.
Q. Were you clerk to Mr. Fearn, in February last?
A. I was.
Q. Do you recollect being sent on the 24th of February to change a note for two hundred pounds?
A. Yes.
Q. By whom were you sent?
A. By Mr. Fearn.
Q. Where did you go to change that note?
A. To Messrs. Bond & Pattesall.
Q. Look at that bank note (No. 634), is that the bank note which you changed?
A. Yes.
Q. What did you receive in exchange for it?
A. Two notes of L.100. each.
Q. Did you take those two notes of L.100. each to the bank?
A. Yes.
Q. For what did you change them there?
A. Two hundred notes of one pound each.
Q. What did you do with those two hundred notes of one pound each?
A. I gave them to Mr. Fearn.
Q. In whose presence?
A. Two or three gentlemen in his office.
Q. Who were those gentlemen?
A. I do not recollect.
Q. Were Mr. Butt or Mr. Cochrane Johnstone there then?
A. No, they were neither of them there then.
Q. Did you see what Mr. Fearn did with those notes?
A. No, I did not.
Q. Did you put your name upon the two L.100. notes before you gave them into the bank?
A. I put Mr. Fearn's name upon them.
[Mr. Miller produced two L.100. notes.]
Q. Are those the two?
A. Yes they are.
Q. What are their numbers?
A. 19,482 and 19,592.
Mr. Joseph Fearn called again;
Examined by Mr. Gurney.
Q. On the 24th of February did you receive from Christmas two hundred notes of one pound each?
A. Yes.
Q. To whom did you give those notes?
A. To Mr. Butt.
Q. Did you see what Mr. Butt did with them?
A. He gave them to Mr. Cochrane Johnstone.
Mr. John Bilson and Mr. Thomas Northover called again.
Mr. Gurney. Did you on the 24th of February pay a L.100. Bank note No. 19,482?
Mr. Bilson. We paid to Fearn on that day two hundred one pound notes for two notes of L.100. each.
Q. Are those the two notes for which you paid them, [shewing them to the Witness]?
A. Those are the two notes.
A Juryman. What are the numbers?
A. 19,482, the 4th of February 1814, and 19,592 of the same date.
Mr. Gurney. I am now going to put into the hands of the witnesses sixty-seven notes found in Mr. De Berenger's writing desk, for him to see whether they are not part of those he paid for those two L.100. notes?
[The Witnesses compared them.]
Mr. Bilson. These are part of the notes we paid to Fearn on the 24th of February.
Lord Ellenborough. The whole sixty-seven?
A. Yes.
Mr. Joseph Fearn;
Cross-examined by Mr. Brougham.
Q. When Christmas brought back these two hundred one pound notes from the bank, you say they were given to Mr. Butt?
A. Yes.
Q. And you say Mr. Butt afterwards gave them to Mr. Cochrane Johnstone?
A. Yes.
Q. Did you see him give them?
A. Yes.
Q. Did you see Mr. Butt give him the other two hundred one pound notes he got from Lance?
A. No.
Q. You were not present then?
A. No, I was not.
Mr. Adolphus. We wish Mr. Wood now to produce out of the desk a watch, which he found in the possession of Mr. De Berenger.
[The Witness produced two watches.]
Q. Were they both in the box when you found it?
A. They were.
Mr. Bishop Bramley sworn;
Examined by Mr. Adolphus.
Q. What are you?
A. A watchmaker and silversmith.
Q. Do you live at Hull?
A. Yes.
Q. Look at those watches that lie there; did you sell those watches?
A. No, neither of those.
Q. Did you sell a watch to the gentleman who sits there?
A. Yes.
Q. For how much money?
A. Twenty-nine guineas and a half, L30. 19s. 6d.
Q. When was that?
A. The 4th of March.
Q. What name did he pass by?
A. We did not hear any name.
Q. How did he pay you?
A. In one pound Bank of England notes.
Q. Did you write any name upon them?
A. I put my own initials upon them.
Q. So that you will know them again if they are produced?
A. Yes.
[Mr. Miller produced some bank notes.]
Mr. Adolphus (to Bramley.) Look at those, and see whether those are part of what you received?
A. All these notes we took of the gentleman we sold the watch to, on the 4th of March.
Q. And that is the gentleman who sits there? (pointing to De Berenger.)
A. Yes.
Lord Ellenborough. What mark have you put upon them to know them again?
A. My own initials and the dates; it is written at the top end of the note.
Q. How are you enabled to say that those seven notes are what you received from the person who bought that watch?
A. We took no other Bank of England notes on that day.
Q. You marked them at the time you received them?
A. Yes, I received twenty in the forenoon, and the other eleven in the afternoon, and I marked them and paid them away the same afternoon.
Cross-examined by Mr. Park.
Q. I understand you to say neither of those watches found in the possession of Mr. De Berenger is the watch you sold?
A. Neither of them.
Q. You wrote upon all the notes?
A. Yes.
Q. Those are the only seven you have seen since?
A. Yes.
Mr. Gurney. You paid them all away?
A. We did.
John Bilson and Thomas Northover called again.
Mr. Gurney. Have the goodness to look over your book, and see whether those seven were part of the two hundred that were paid to Fearn?
[The Witnesses examined them.]
Mr. Bilson. Those seven notes were part of the property paid to Fearn on the 24th of February.
Benjamin Lance called again;
Examined by Mr. Gurney.
Q. On the 25th of February, did you give Mr. Butt a check on Prescott & Company, for L.98. 2s. 6d.?
A. On the 26th of February I did.
Q. Is that the check? [shewing it to the witness.]
A. That is the check.
John Isherwood sworn;
Examined by Mr. Gurney.
Q. Are you clerk to Prescott & Company?
A. I am.
Q. Look at that check, did you pay that?
A. I did.
Q. On what day?
A. The date of it the 26th of February, I think.
Mr. Park. That is an entry in your own hand-writing.
A. It is.
Mr. Gurney. Did you pay a 50l. note?
A. Yes.
Q. What number?
A. No. 13,396.
Q. Did you pay also a forty pound note?
A. Yes, No. 6,268.
Q. Look at that, is that the L.40. note?
A. Yes, that is the note.
Mr. Gurney. Mr. Miller, will you produce the L.50. note? [Mr. Miller produced it, and it was shewn to the Witness.]
A. This is the note.
Mr. John Seeks sworn;
Examined by Mr. Gurney.
Q. Look at that cancelled bank note for L.50. did you receive that bank note in payment from any person?
A. I gave change for it.
Q. On what day?
A. I cannot exactly recollect.
Q. About when; have you any minute on the back of it?
A. Here are some letters here that I know it by.
Q. To whom did you give change for it?
A. Mr. De Berenger's servant, Smith.
Q. The day you cannot exactly fix?
A. I cannot.
Mr. Serjeant Best. I submit to your Lordship, that is no evidence, until they call Smith.
Mr. Gurney. On referring to Mr. De Berenger's memorandum book, I find "W. S. L.50." which I consider as connecting itself with this.
Mr. Park. That book is not proved.
Mr. Gurney. It is proved by being found in the trunk.
Mr. Park. I object to that book being read; that is not the book which was before proved; as to that, Mr. Lavie gave some evidence of the hand-writing before the entry was read.
Mr. Germain Lavie called again;
Examined by Mr. Gurney.
Q. Do you believe that to be the hand-writing of Mr. De Berenger?
A. Yes I do, most certainly.
Cross-examined by Mr. Park.
Q. I observe this is pencil writing you have been speaking to; did you ever see any writing of this person in pencil before?
A. No, never.
Q. There is no difference in a man's writing with a pencil and with a pen?
A. I conceive that to be written by Mr. De Berenger.
Q. It is exactly like the character of that letter which has been given in evidence upon your testimony?
A. Yes, it is the same sort of writing.
Mr. Serjeant Best. I submit to your Lordship, still I am not removed from my objection. There is first a check of L.98. 2s. 6d.; then an attempt is made to trace L.50. of that into the hands of Mr. De Berenger; the way in which that is attempted is, that a person says he gave change for that note of L.50.;—beyond that, they have produced a pencil memorandum, proved to be in the writing of Mr. De Berenger, at least there is some evidence of that; that pencil memorandum is merely this, not that a particular bank note; not that the note which came into the hand of the witness, and for which he gave change, but that a bank note of L.50. was paid to W. S. It does not appear that it was that bank note, and this, I submit, is no evidence in a criminal case.
Mr. Gurney. I submit to your Lordship it is evidence, valeat quantum, it does not prove that Smith received that bank note from De Berenger, but that it came from De Berenger's servant; I shall give no other evidence to bring it home to De Berenger, and I submit that it is admissible evidence, as that which is proved to come so near as the child, the wife, or the servant.
Lord Ellenborough. I think it is not evidence; it does not get the length of William Smith; but even if it were to be taken to refer to William Smith, it does not connect it with this bank note, or any other means of payment. I cannot translate "W. S." into "William Smith my servant," and "L.50." into "this L.50. bank note." You do not call William Smith.
Mr. Gurney. No, certainly not, my Lord,—I shall leave that to my learned friends.
Mr. Benjamin Bray sworn;
Examined by Mr. Gurney.
Q. Where do you live?
A. At Sunderland.
Q. Will you look at this L.40. note, [shewing the witness the note just produced,] did you receive that L.40. note from any one?
A. From the waiter of the Bridge Inn at Sunderland.
Q. Did you see Mr. De Berenger about the time of the receipt of it?
A. I had seen him often prior to that.
Q. At Sunderland?
A. Yes.
Q. A waiter brought it to you?
A. Yes, with Major Burne's compliments.
Q. He brought you some message with it?
A. Yes, I gave him six L.5. notes for it, and ten L.1. notes.
Q. Bank of England notes?
A. No, of the Durham Bank.
Q. Did any thing pass between you and Mr. De Berenger afterwards, on the subject of that note?
A. The waiter returned in a few minutes afterwards.
Q. Did any thing pass afterwards between you and Mr. De Berenger, on the subject of that note?
A. Yes, he came shortly afterwards to take his leave of me.
Lord Ellenborough. Where did he come to?
A. To my house.
Q. What shop do you keep?
A. I am a druggist and agent to the Durham bank.
Mr. Gurney. How long had Mr. De Berenger been at Sunderland?
A. I had known him there from the 7th to the 21st of March. I apologized for not being able to send more Bank of England paper in exchange for the Durham bank notes; the waiter having been to request that I would send him Bank of England paper, I gave him a message to Mr. De Berenger.
Q. You made him an apology for not having sent him more bank paper in exchange?
A. Yes.
Q. In exchange for the note you had at first received; for that note?
A. Yes.
Q. What did Mr. De Berenger say, on your making the apology?
A. I apologized for not having sent him more Bank of England paper, and he acknowledged having received the whole of the notes I had sent him from the waiter.
Q. By what name did Mr. De Berenger go there.
A. Major Burne; he gave me his name.
Q. Is that the gentleman you have been speaking of? (pointing to De Berenger.)
A. Yes.
Cross-examined by Mr. Richardson.
Q. How do you know that L.40 note to be the note you received?
A. By a copy that I made at the time.
Q. Have you got that copy with you?
A. This is a copy of my waste book—the waste book is at Sunderland.
Q. You identify it by means of the copy which you have made from your waste-book, which book you have left at Sunderland.
A. Yes; and also from my initials on the back of the note.
Q. Made at the time?
A. A day or two afterwards.
Lord Ellenborough. Before you parted with it?
A. Yes.
Mr. Richardson. You are the agent of the Durham Bank?
A. Yes.
Q. You have a great many notes passing through your hands?
A. Yes.
Lord Ellenborough. Are you sure that when you made that memorandum, you had perfectly in your recollection from whom you took that note?
A. Yes, perfectly.
Mr. Richardson. You did not keep this distinct from your other notes?
A. No.
Q. You mixed it with your other notes?
A. Yes.
Q. You marked it several days afterwards?
A. I marked it between the 31st of March and the 4th of April, when I remitted it.
Q. You put your name upon every bank note that passes through your hands?
A. No, I do not.
Q. Why did you put your name upon this?
A. I cannot give a satisfactory answer why.
Q. Do you generally put your initials on notes that pass through your hands, or not?
A. No, I do not.
Q. How came you to do so in this particular case?
A. I have before answered that I cannot give a satisfactory reason.
Q. At Sunderland, which is a place of great business, do not a large number of bank notes pass through your hands?
A. Yes, there do of course.
Lord Ellenborough. Did the transaction of your sending Durham notes, and his objecting to not having more bank notes, fix the circumstance of the L.40. note more strongly in your memory?
A. I have not had another L.40. note since that.
Q. Nor had you at the time?
A. No, I had not.
Q. Nor since?
A. No.
Mr. Gurney. The only remaining head of evidence that I have to trouble your lordship with, is with respect to a check for L.56. 5s. paid by Mr. Fearn to Mr. Butt, and the produce of that.
Mr. Pattesall sworn;
Examined by Mr. Gurney.
Q. Are you a partner in the house of Bond & Company?
A. I am.
Q. Look at that check of Mr. Fearn's, did you pay that?
A. I did not.
Q. Who did pay it?
A. Mr. Evans, a clerk of ours.
Q. Is Mr. Evans here?
A. Upon my word I cannot tell.
Mr. Gurney. He has been expressly desired to be in attendance.
Lord Ellenborough. Then call him upon his subpoena if he does not appear.
Mr. Gurney. Just look and see whether the entry is Evans's hand-writing.
A. It is Evans's hand-writing.
Thomas Evans was called on his subpoena, and did not appear.
Lord Ellenborough. This entry then will be of no use to you.
Mr. Gurney. No, my Lord; it was mentioned that there were two Napoleons in the letter case: Mr. Wood has those two Napoleons to produce.
[Mr. Wood produced two Napoleons.]
Mr. Gurney. This, my Lord, is the evidence on the part of the prosecution.
* * * * *
Mr. Serjeant Best. I wish to apprize your Lordship that I think it will be necessary for the defendants to call witnesses.
Lord Ellenborough. I should wish to hear your opening, and to get into the defendants case, if I can; there are several gentlemen attending as witnesses, who, I find cannot, without the greatest public inconvenience, attend to-morrow.
Mr. Park.. The difficulty we feel, I am sure your Lordship will feel as strongly as we do the fatigue, owing to the length of our attendance here; but we will proceed if your Lordship desires it.
Lord Ellenborough. I would wish to get into the case, so as to have the examination of several witnesses, upon whom the public business of certain offices depend, gone through, if possible.
Mr. Park. I have undergone very great fatigue, which I am able to bear; but I would submit to your Lordship the hardship upon parties who are charged with so very serious an offence as this, if their case is heard at this late hour; and then a fresh day is given to my learned friend to reply.
Lord Ellenborough. It will not be a fresh day when you will be here by nine o'clock, and the sun will be up almost before we can adjourn; I will sit through it if you require it, rather than that.
* * * * *
Mr. Alley. On the part of M'Rae, I shall not trouble your Lordship with any witnesses or observations.
* * * * *
MR. SERJEANT BEST.
May it please your Lordship,
Gentlemen of the Jury,
I assure you I am extremely sorry on my own account, and still more sorry on your account, that it will be necessary for me, if I am able to do it, to take up a considerable portion more of your time, in the discussion of this most important question; a question, certainly, of great importance to the public; a question, of great importance to the three individuals whose interests are committed to my charge; for, gentlemen, upon the issue of this question, with reference to them, depends whether they are to hold the situation in society which they have hitherto held, or whether they are to be completely degraded and ruined.
Gentlemen, allusions in the course of the day have been made to that which passes at the Old Bailey; no sentence that can be passed there, can be felt more by the persons on whom it is passed, than a verdict of Guilty will be felt by these three persons.
Gentlemen, from the attention I have observed every one of you giving to the evidence, and from the accuracy of the notes that have been taken by the noble and learned Judge, I have, at this late hour, this consolation left to me, that whatever I may omit, you will supply; whatever I shall not be able to impress upon you, in the manner it ought to be impressed upon you, will be brought to your consideration by his Lordship, and that that explanation which I shall feel myself unable to give, he will be in a situation to give; and with this hope, I proceed to call your attention to the case of these gentlemen:—My Lord Cochrane, Mr. Cochrane Johnstone, and Mr. Butt; the interests of the other defendants being committed to much abler hands.
Gentlemen, there are very few of the introductory observations that were made to you by my learned friend, which I am in a condition, or feel any disposition to dispute. I by no means dispute, that what is charged in this indictment is not an offence of very considerable magnitude; if I was satisfied that it was not an offence which the law of the country reaches, I protest to you, that I would not take any objection upon that score; because I am quite convinced that acquittal, upon such a ground as that, would be an acquittal that would not answer the purpose of the respectable gentlemen that I represent before you.
Gentlemen, I have observed some of my learned friends asking questions, which seemed calculated to obtain answers on which some legal objection might be founded. I hope you will recollect, that I have never asked any such questions; on the contrary, I have avoided looking at the indictment, lest I should see any thing that should force an objection upon me, and prevent this case from being decided upon its merits.
Gentlemen, I certainly do admit, that it is a crime, and a crime of a great magnitude, for any person, by means of the circulation of false news, to attempt to raise the price of the public funds; in consequence of which, individuals who are fair purchasers of such funds, are compelled to pay more than the stock they purchase is fairly worth. I hope, whoever were the authors of this, which has been called, and improperly called, a hoax, will suffer for their offence; but when we are reminded, that certain persons have suffered by it, I must say, that the fair purchasers who have suffered, are but few in comparison to those who are objects of no compassion, namely, the gamblers who attended at the Stock Exchange upon this occasion.
Gentlemen, I admit also, that which has been stated by my learned friends, that it is not necessary, for the purpose of bringing home the crime of conspiracy to any individual who may be charged with it, that you should call a person who was present at any of the consultations—shew the casting of the different parts of those who were to act in the drama, and point out distinctly who those were who were to perform, and how afterwards they have performed these parts. I admit that all this is not necessary to be proved: conspiracy, like every other offence, may be brought home by circumstantial proof. Indeed, circumstantial proof is, in many cases, more satisfactory than that which is direct and positive, because it is free from the suspicion of falsehood. But I deny, upon this occasion, that there are any circumstances that bring home the crime of conspiracy to any of the three persons whom I represent. All that is proved may be true, and yet the defendants may be innocent. The circumstantial evidence that alone can warrant conviction, is the proof of such facts as could not have happened had the accused been innocent.
Gentlemen, whether Mr. De Berenger be the Colonel Du Bourg who pretended to bring the news from France, or not, it is not for me to discuss; I shall leave that question to my learned friend Mr. Park, who is counsel for Mr. De Berenger, and who, I hope, will be able to satisfy you that Mr. De Berenger is not that Colonel Du Bourg; if he is not that Colonel Du Bourg, then there is no evidence against either of the parties I represent. But admitting, for the purpose of my presenting the case to you which I am called upon to support, that De Berenger is that Du Bourg, still it is another question, whether either of these defendants were connected with De Berenger; and I do, notwithstanding what has been stated to you by my learned friend, that he was perfectly certain that he should bring home the guilt charged by this indictment to all the defendants, submit most confidently, that there is no evidence against either of my clients.
Gentlemen, it is extremely difficult, amidst such a mass of evidence as has been laid before you, to bring one's attention, or to call your attention immediately to the evidence that applied to any particular person. I will take the three cases in the order in which they stand upon this indictment; and the first of those three for whom I am concerned, is my Lord Cochrane.
Now, gentlemen, let us examine the evidence that is offered to you, to prove that he is connected with this conspiracy. It consists in this, that my Lord Cochrane did, on the 21st of February, sell L.139,000 Omnium; and further, that Mr. De Berenger was, on the morning of the 21st of February, at the house of Lord Cochrane. Gentlemen, as far as I can collect, from the attention I have been able to give to the evidence, I have stated the utmost effect of the evidence against my Lord Cochrane; for, gentlemen, though it was suggested by my learned friend, Mr. Gurney, that he should trace some of the notes which were found in the desk of Mr. De Berenger into the hands of my Lord Cochrane, I beg to state, that there is not one single note traced into the hands of my Lord Cochrane. I admit that there are notes found in the chest of De Berenger, traced into the hands of the other two defendants; but I believe I shall be able, by and by, satisfactorily to shew you how these notes came from the hands of one of the defendants into the hands of De Berenger, and to prove that they came into the hands of De Berenger, under circumstances altogether unconnected with that which is the subject of your enquiry; but I am, for the present, only considering the case of Lord Cochrane; and I would beg the favour of his Lordship now to refer to his notes, and I am persuaded his Lordship will go along with me in the observations I am making, that there is no evidence whatever to bring home any one of the notes to my Lord Cochrane.
Gentlemen, the only part of the evidence which has the least tendency to connect my Lord Cochrane, by means of the notes, with Mr. De Berenger, is the evidence that was given by a person of the name of Lance; there is not one other witness that attempts to state, that a single note traced from the hands of Lord Cochrane, ever was found in the hands of Mr. De Berenger; now, if you will have the goodness to attend to Lance's evidence, you will find that there were for a time put into the hands of Lord Cochrane two L.100 notes, which were afterwards found at the Bank, and in exchange for which two hundred one pound notes were given to the person changing them, and that a considerable quantity of those L.1 notes have certainly been proved to be found in the chest of Mr. De Berenger; but permit me to state, that though those two L.100 notes, by which one hundred L.1 notes were afterwards produced, are for a short space of time shewn to be in the hands of Lord Cochrane, that the same witness tells you, that those L.100 notes were got back from my Lord Cochrane again, before they were exchanged at the Bank; for he tells you, that he carried those two L.100 notes to the Bank for Mr. Butt. Gentlemen, my learned friend, who cross-examined Mr. Lance, certainly could not get from him that he was present at the time when my Lord Cochrane paid those two notes into the hands of Mr. Butt; but it is perfectly clear, from that which he subsequently stated, that at some period before they found their way into the Bank, and before they can furnish any means of proof against the parties, they must have been returned to Butt's; these notes might have been in the hands of any one of you, gentlemen; but the question is, on whose account the two hundred L.1 notes were received from the Bank, for it is these small notes which can alone connect the party with Mr. De Berenger. Now, I say, Mr. Lance, in a part of his evidence, stated, that though he was not present at the time Lord Cochrane returned the two L.100 notes to Butt, yet that he afterwards received those notes, not from the hands of Lord Cochrane, but from the hands of Mr. Butt; for Mr. Butt he went to the Bank; for Mr. Butt he got the two hundred L.1 notes, and those two hundred L.1 notes he delivered back into the hands of Mr. Butt. Gentlemen, I am sure therefore, that if I have made myself understood upon this part of the case, I have completely released Lord Cochrane from the effect of this evidence, for though the two large notes were once in his hands, these notes were never in the hands of De Berenger. The notes found on him were the small notes given in exchange for them at the Bank, and these were given to Mr. Butt, and not Lord Cochrane. It is perfectly clear, therefore, that though these had been in the hands of Lord Cochrane, from the money transactions taking place between them every day, it was Mr. Butt that was the possessor of those notes, at the time the L.1 notes were obtained for them; I am satisfied, therefore, you will see that this evidence does not connect Mr. De Berenger with Lord Cochrane. I am quite confident, therefore, that I am right, when I state to you, that my learned friend's attempt to draw an unfavourable inference from the circumstance of De Berenger being in possession of notes which once belonged to Lord Cochrane, is completely answered; and then I state again, that the only points which remain for your consideration, with respect to Lord Cochrane, are, first; the large sale of stock on the 21st of February; and, next, De Berenger being at his house on that day; with respect to the last circumstance, that is proved only by Lord Cochrane's affidavit, and I think I shall shew that Lord Cochrane, in that affidavit, completely explains that circumstance.
Gentlemen, with respect to the large sale on the 21st of February, I do not think the Committee of the Stock Exchange have conducted themselves quite fairly in a criminal case; because, in a criminal case, it is not fit to take up a piece of evidence just exactly at that point where it will suit the purpose of those who offer it, keeping back other evidence which they know is extremely important, which they must know is calculated to do away the effect of that which they offer. Now, gentlemen, for the purpose of implicating Lord Cochrane, the Stock Exchange have instructed my learned friend, Mr. Gurney, to state, and Mr. Gurney did, in pursuance of his instructions, state most expressly, that Lord Cochrane began his Stock Exchange speculations about one week before the 21st of February; and, till I cross-examined Mr. Fearn, you must necessarily have understood, as well from the statement of counsel, as from the evidence that has been offered, that Lord Cochrane, about six or seven days only antecedent to the 21st of February, had purchased the whole of the L.139,000 that was sold out on that day; that his lordship had never speculated in the funds before, and, therefore, that all his purchases must have been made in order that he might have so much stock to sell at this particular time. But, gentlemen, it turns out that Lord Cochrane had been deeply speculating in the Stock Exchange for several months before, and so the inference, that he purchased this stock with a view to the event that happened on the 21st of February, is rebutted; that Lord Cochrane did not first begin to buy this L.139,000 merely for the purpose of selling on the 21st of February, is most clearly proved by the testimony of Fearn and of Hichens, who say, that so early as the month of November preceding Lord Cochrane had bought very largely, and had sold very largely; and that he continued to buy and to sell, down to the very period of the last sale taking place; it is impossible, therefore, when the evidence is laid before you, that you can collect, merely from the circumstance of his selling so large a sum as L.139,000 on the 21st of February, that he was guilty of a conspiracy to occasion a rise in the funds on that day. The witness did not come prepared to state to you, what had been the extent of the sales made by Lord Cochrane on antecedent days; but when he states that he sold largely, (I think I may venture to say, that he sold nearly as much on previous days as on this occasion); you will find therefore nothing to distinguish the conduct of Lord Cochrane on the 21st of February, from that which had been his conduct on many days precedent.
Gentlemen, I trust therefore, that in a criminal case, you will think that the inference of criminality which is supposed to arise merely from the circumstance of the sale of this large quantity of stock, is rebutted by the fact I have now brought under your consideration; but you will have the goodness also to bear in mind another circumstance. I did expect, when I heard the case opened with so much confidence against Lord Cochrane, that you would hear of some particular directions being given to sell on that day; but, gentlemen, how does that fact turn out; no particular directions are given to sell on that day, but Lord Cochrane's general directions, from the first moment when he became a speculator in stock, were, that whenever any event should happen by which the stocks should be raised, one per cent. the broker was not to wait for particular directions, but to sell; and this large sale of L.139,000, from whence the inference is drawn, that Lord Cochrane necessarily knew of the conspiracy which had taken place, was made under these general directions. It is also to be observed, that Lord Cochrane was never present in the city a single hour during the 21st; there is no evidence given that he was there; on the contrary, all the witnesses that have been examined, have told you they did not see him there; all the stock was therefore sold on that day, without any interference on his part; and as it appears beyond all question, a very considerable part of the stock of all these gentlemen was sold before any of them came into the city, and without any particular directions on the subject of the sale of it.
Gentlemen, the sale of the stock which Lord Cochrane possessed, considering the circumstances under which he became possessed of it, and the circumstances under which it was sold, furnishes, I submit to you, no proof that he was privy to what they have called the hoax. I beg pardon of the noble and learned judge, for using this term, after the observation that his lordship has made upon it. I did not use it for the purpose of treating with levity the crime contained in the indictment; but it has been so frequently applied to this crime, both before and since the prosecution was instituted, that it is difficult in the hurry of speech to avoid using it.
Gentlemen, another circumstance has transpired, which I think furnishes a strong observation in favour of all my clients; namely, the practice of selling both stock and omnium, which the seller is not at the time of such sale in possession of. If Lord Cochrane had been privy to the fraud, would he have contented himself with merely selling the stock that he had previously purchased. Would you not have found him selling to every buyer that offered (and on the 21st of February there was no scarcity of buyers at the advanced prices) stock and scrip in any quantity; if he had been privy to the fraud, he must have known that the bubble would soon burst, that the funds would fall back to their former prices, and that by every sale that he so made, he must be a great gainer; yet he is not found selling the value of a shilling in this manner; nothing is sold but what had been previously bought, and that sold under general directions given to the broker previous to the day of sale, and previous to the time when the conspiracy could have been conceived. If his lordship had been one of the conspirators, he must have been found to have made many more thousands of pounds by the speculations of this day, than he either is or can be proved to have made hundreds. Avarice, always insatiable, which had in this case impelled the defendant to hazard every thing that was dear and valuable to him in life, stops short in the hot pursuit of its object, at the very moment when the most abundant means of gratification are brought within its reach. Does not then the inference of innocence, arising from what he did not sell, although he might have sold much, outweigh the inference of guilt, arising from what he actually did sell; what he did on this day, it is not only possible but probable that he might have done, and yet be innocent of the conspiracy with which he is charged; what he did not do, he could not have omitted to do, if he had been guilty.
My learned friend, Mr. Gurney, has told you, that the circumstance of his selling out as he did, proves his privity to the conspiracy. Men who were unconscious of the risk, says my learned friend, did not sell on the first rise in the market, but held their stock in the expectation of gaining still higher prices; but the defendant, knowing that the falsehood of the news would soon be discovered, and that its effect on the funds must be of very short duration, sells his whole stock on the opening of the market. I should have felt the force of this argument, had you found Lord Cochrane on the Stock Exchange, pressing his brokers to complete their sales; but when you find that his lordship was not present, and gave no directions for immediate sales, but that his stock was sold under orders given before the fraud could have been thought of, I trust that you will find it not worthy of much attention. If, however, you are to decide on the guilt or innocence of Lord Cochrane from the transactions of the 21st of February, you will look at the whole of his conduct, and when pressed to find that the circumstance of his selling is proof of his guilt, you will say, that the circumstance of his not selling more than he did, is a still stronger proof of his innocence. My learned friend will have an opportunity in his reply, of accounting why his lordship and his supposed co-conspirators did not sell more; and I think he will find it a task that will transcend even his powers, to account for it in a manner compatible with their guilt.
Gentlemen, the only remaining point relative to Lord Cochrane is this; that on the morning of the 21st of February Mr. De Berenger went to the house of his lordship. Gentlemen, it is material for your consideration how the Stock Exchange got the knowledge of that fact. Gentlemen, but for my Lord Cochrane, the Stock Exchange never would have known of the existence of any such person as De Berenger; but for my Lord Cochrane, it is impossible that the Stock Exchange could have instituted this prosecution, because it was by Lord Cochrane's affidavit only that the name of De Berenger was given to them. I am aware my learned friend stated to you, that the Stock Exchange had some reason to suspect that a Mr. De Berenger had been engaged in it before this affidavit was published; but, Gentlemen, my learned friend has offered no proof of the grounds of such suspicion; the only proof that he has offered upon the subject, is the proof which my Lord Cochrane's affidavit furnished him with. Now, Gentlemen, I have a right to say, that the mere circumstance of Lord Cochrane's introducing the name of Mr. De Berenger for the first time, in that affidavit, is of itself sufficient to repel the inference arising from the circumstance of De Berenger's going to his house. But, gentlemen, I am sure you will bear in mind the very important evidence that was given by Mr. Wright upon that subject. My learned friend may repeat again the observation with which he introduced this prosecution, that those who are wicked are not always wise, and that it so happens frequently, that men do acts without considering the consequences of those acts, and that it is in consequence of this want of consideration that criminality is often brought home to delinquents; but it appears from Mr. Wright's testimony, that Lord Cochrane was fully aware of the consequence of the affidavit that he was about to publish. Mr. Wright, the printer, who was called for the purpose of shewing that this affidavit had been printed by Lord Cochrane, tells you, that when he received the instructions from Lord Cochrane to print the affidavit, Lord Cochrane said this, I have no reason to think De Berenger was the man, but if he was, I have given the Stock Exchange a clue to him; so that you see, at the very moment that his lordship published that affidavit, he was perfectly aware of the consequence of what he was about; and he must know, that if the Stock Exchange could not find out who this man was who came to his house, it would be impossible for them to reach his lordship. He must know that they were likely to remain for ever ignorant who that person was. He comes forward and tells them who that person was, recollecting at the time he makes the disclosure, that if that person be guilty, he would by the act he was about to do deliver him over to their justice. What must those persons think of Lord Cochrane? who after this can consider him as implicated in the guilt of this conspiracy? the guilty men knowingly and advisedly point out to their prosecutors, the only course by which they can be hunted down; such guilty men must be men of too weak understandings to be answerable for their conduct either to God or their country. In the declaration that Lord Cochrane made to Mr. Wright, he did that justice to Mr. De Berenger which his knowledge of that gentleman compelled him to do; he said he did not think him guilty; but if he was guilty, he was about to give him up to the punishment that he justly merited. Gentlemen, there is more of simplicity, more of fair dealing in this behaviour, than was ever found connected with so much guilt as is imputed by the indictment that you are trying, to this defendant.
Gentlemen, let us look at the affidavit itself; my learned friend indulged himself with making upon it a great number of very harsh observations. It is easy to raise suspicions; but suspicion and conviction are different things. Recollect, that before you can convict Lord Cochrane, you must be convinced that this affidavit is altogether false. Gentlemen, it might possibly be said, that that noble Lord, not reflecting on the consequences of such an offence as that imputed to him by this indictment, might be engaged in it; but you must impute to Lord Cochrane a much more serious offence, one for which want of consideration will be no excuse, after that affidavit has been laid before you, or it is impossible for you to say that he can be convicted of this conspiracy; for it will not be forgotten by you, that at the close of that affidavit, my Lord Cochrane does, in the most solemn manner protest, that he is altogether innocent of the offence which is imputed to him by the Stock Exchange Committee. Gentlemen, I cannot put that better to you than in the words of the affidavit itself; after stating every thing that had taken place with respect to De Berenger coming to his house, his Lordship says, "Further, I do solemnly depose, that I had no connexion or dealing with any one, save the above mentioned, and that I did not directly or indirectly, by myself, or by any other, take or procure any office or apartment for any broker or other person for the transaction of Stock affairs."
Gentlemen, it is said that this affidavit has only been sworn before a magistrate; a lawyer, like my learned friend, knows that upon an affidavit so sworn a party cannot be indicted for perjury; but my learned friend will have a great difficulty in convincing you, that Lord Cochrane, whose education has been different from that of my learned friend, knew that he was not liable to that punishment. I am persuaded that he conceived himself as completely amenable to the guilt of perjury, as if that oath had been taken in a court of justice. But is the temporal danger that awaits an act of this sort, the only thing that could prevent a person of the character and situation in life of this noble person, from making such an affidavit. What reason has my learned friend given you to-day? What reason can you collect from the former life of this noble person, (for he has been before you, and has lived in the view of the public), that can induce you to believe that he is so completely lost to all sense of that which is right and wrong, to all sense of what is due to himself, as to go before a magistrate to make an affidavit, in which he must know he was deposing to that, which at the time he was making the deposition was absolutely false? Gentlemen, I ask you what evidence you have upon which you are to find this noble person, not only guilty of a foul conspiracy, but also of the still higher crime of wilful and corrupt perjury? Gentlemen, I am quite satisfied, you will not feel that there is any evidence in this cause, which can weigh down the testimony which my learned friend has thought proper to put in. I say the oath of Lord Cochrane makes the evidence offered on the other side kick the beam; that there is nothing to put in competition with the affidavit which my learned friend has himself given in evidence.
But, gentlemen, let us look at the narrative given in the affidavit, and see whether there is any thing improbable in it. Lord Cochrane states, that he had gone out on the morning of the 21st, with his uncle, not to go into the city, but to go to a man of the name of King, who was engaged in making for him a lamp, for which he was about to obtain a patent; is that true, or is it false? It is true, according to all the evidence in the cause; there is no doubt that Lord Cochrane did set out with Mr. Cochrane Johnstone, for the purpose of going towards the city. Did he go into the city? No one witness has shewn that he did. On the contrary, I think it may be taken as admitted, that he never was in the city on that day. Here then this part of the affidavit is most unquestionably confirmed. He states, that having proceeded to the house of this man, who was assisting him in preparing this lamp, he received a note in which he was desired to come home; then he states, he was informed that the person who brought the note was in the dress of an officer; and Lord Cochrane goes on to state, that imagining it was some officer who had just come from Spain, (and probably you may know, gentlemen, that Lord Cochrane, who is himself serving in the navy, has a very gallant brother at this time serving in the army in Spain, and with respect to whom, I believe I shall shew you in evidence, that he was exceedingly ill, and was considered to be in very great danger), he immediately connected that officer with his brother in Spain, and he proceeded in a hackney coach to his house, hoping for some account of his brother in Spain.
Gentlemen, it appears that the officer turned out to be Mr. De Berenger. Lord Cochrane then gives you an account of what Mr. De Berenger represented to be his object in coming to his lordship's house; he says that Mr. De Berenger had previously made applications to him to take him out to America, for the purpose of exercising his men in small arms, and that Mr. De Berenger renewed his application that morning to him to take him in the Tonnant, the ship to the command of which his Lordship was then appointed, and in which he was about to sail to America. Gentlemen, is this true? we have the evidence of Mr. Murray, a gentleman called on the part of the prosecution; we have the evidence of another person, of whom I cannot speak in the same terms as I do of Mr. Murray, for I shall by and by shew you that he is entitled to no credit, who certainly, as far as he speaks in favour of Lord Cochrane, is entitled to consideration; but where he speaks against Lord Cochrane, as I shall shew you, he is entitled to no consideration, for that he has vowed he will bring on the ruin of Lord Cochrane, in consequence of the refusal of a loan of money. We have it in evidence, that Mr. De Berenger did expect to go to America, under the protection of Admiral Cochrane and Lord Cochrane; the narration in the affidavit is thus confirmed by this evidence; the affidavit then goes on to state, that Mr. De Berenger told Lord Cochrane, that he had left the King's Bench, and come to Lord Cochrane for the purpose of going to America. That he, Lord Cochrane, stated to De Berenger, that it was impossible for his lordship to take him, that his ward room was full; and further, that De Berenger being a foreigner, his Lordship could not take him without the consent of His Majesty's Government; that he might go on board ship at Portsmouth; but in the meantime he must get the permission of His Majesty's Government, upon which his lordship says, De Berenger said he would go to the noble Lord, whom I have the honour to see in court, to get that permission; his affidavit then states, that De Berenger said to his lordship, I must take a great liberty with you, for it is impossible I can go to the first Lord of the Admiralty in the dress in which I now am; upon which he, Lord Cochrane, not suspecting that Mr. De Berenger had been making an improper use of the dress he had on, or his views in wishing to change it, furnished him with a coat and hat.
Here my learned friend, Mr. Gurney, makes an observation which I am sure he will be exceedingly sorry for having made; because he would not intentionally, in a criminal case, prejudice the case of the defendant by any argument that is not borne out by the facts of the case; he says, Did Lord Cochrane think it a right thing for his lordship to do, to furnish De Berenger with the means of escaping from his creditors? Gentlemen, there was no such thing thought of at the time, as the escaping from the King's Bench prison; the cloaths were to enable De Berenger to go to the Admiralty, and to Lord Yarmouth; and it was for the purpose of appearing before Lord Yarmouth and Lord Melville, that this change of dress was asked for, and not for the purpose of escaping out of the kingdom, and avoiding his creditors; whether Lord Cochrane was wise or not in acceding to this request, it is not for us to decide to-day; but I am sure you will feel it was straining the English law too much, to say of a good-tempered English sailor, that he is guilty of a conspiracy, because he yields to a request, to which a person more hacknied in the tricks practised on them, would not have acceded. If my learned friend could have shewn you, that all that the affidavit states, respecting De Berenger's going to America, was the invention of Lord Cochrane since the 21st of February, that nothing of the sort had ever been thought of before, such proof would have falsified the affidavit. But so far from offering any such evidence, all the evidence adduced confirms the statement in the affidavit; and yet my learned friend still ventures to ask you to disbelieve what Lord Cochrane has sworn, although his oath is unopposed by any testimony, and supported by all the testimony given in the cause.
Gentlemen, it is not my business to argue before you, that Mr. De Berenger went that morning to Lord Cochrane, expecting to obtain leave to go to America; it is enough for me that I satisfy you, that he pretended that that was the object of his visit; but why did he go there at all? Why my learned friend, Mr. Gurney, has given you the reason for his going to some person's house before he went to his own. He has told you, that it would have been highly imprudent, if he was Colonel De Bourg, for him to go to his own lodgings; the Stock Exchange would have had no difficulty in finding him out by means of the post-boys, had he driven home. He determined therefore to make a pretence for stopping at some other person's house; and what had passed between him and Lord Cochrane, afforded him a pretence for going to his lordship's.
Gentlemen, bear in mind this; you are to decide this cause upon evidence; you have no positive evidence of any thing that passed in the house of Lord Cochrane, except that evidence which my learned friend, Mr. Gurney, has given you from Lord Cochrane himself; you have had evidence upon the oath of my Lord Cochrane, that whatever concealed objects this gentleman had, the avowed object in going there, was that which he has stated; and in which, I say again, he is completely confirmed by all the evidence that has been offered in this cause. Gentlemen, if it was not for this purpose—if this was not the pretence on which Mr. De Berenger went there, he was much more intimate with Mr. Cochrane Johnstone than he was with Lord Cochrane; why did not he go there; Mr. Cochrane Johnstone lived only in the next street; if he went to the one house or to the other, because of a connection between him and these parties in a conspiracy, why happens it that he did not go to the house of the party with whom he was most intimate.
Gentlemen, there is another circumstance you will not fail to observe; it appears from this affidavit, and will appear from the testimony of witnesses whom I shall call, that Lord Cochrane was sent for to his house by Mr. De Berenger; now, in my humble judgment, that is an extremely strong circumstance to shew, that whoever was connected in this scheme, Mr. De Berenger could not have considered Lord Cochrane as privy to it. If Lord Cochrane was engaged in this conspiracy, what object could De Berenger have for sending for him back from the city, about half past ten in the morning; why, if he and De Berenger had been parties to this conspiracy to raise the price of stocks, Mr. De Berenger could not want to see Lord Cochrane; why therefore was his Lordship to be sent for out of the city, at the very time when his presence in the city was essential to the consummation of the fraud. This therefore shews to you, I think most clearly and satisfactorily, that De Berenger had sent for him on the pretence that Lord Cochrane states in his affidavit, and that Lord Cochrane was not informed of what was passing in the city, nor was in any wise privy to it.
Gentlemen, I have stated to you, that it appears to me that every part of the affidavit of Lord Cochrane is confirmed by the evidence which has been given by Mr. Murray, and by all the other evidence offered in the cause; that from all of it you may collect, that De Berenger did go there under the pretence stated, and that he did not go there as a place at which he was to terminate a journey which he had undertaken in concert with Lord Cochrane and others, for the purpose of raising the price of the funds. But knowing the evidence I have, I will not leave it upon this evidence, for this is a case too important to the honour and character of Lord Cochrane, for me to leave any thing undone which I think may possibly tend to produce that verdict, which I am sure every one of you will by and by feel rejoiced to give; I shall therefore adduce before you other evidence confirmatory of such parts of Lord Cochrane's affidavit as are capable of confirmation. Gentlemen, it has been said that this affidavit is false in this; that it states, that Mr. De Berenger when he came to Lord Cochrane's had on a green coat, whereas it is proved by several witnesses that he had on a red one; but let me suppose that their account as to the colour of the coat is true, and that Lord Cochrane's account is incorrect; would such a mistake, for it is impossible that it can be any thing but a mistake, weaken the credit due to Lord Cochrane. Men do not commit crimes, unless impelled to the commission of such by some strong motive; what object could Lord Cochrane possibly have for stating that this gentleman came in one coloured coat rather than another? Gentlemen, I think I can account for the mistake; my Lord Cochrane made this affidavit a great many days, I think some weeks, after the transaction had taken place; Mr. De Berenger belonged to a corps of riflemen in this country, commanded by Lord Yarmouth, and the proper dress of Mr. De Berenger, as a member of that corps, was a green uniform; my Lord Cochrane had often seen Mr. De Berenger in this green uniform. His lordship, when he made his affidavit, recollected the circumstance of Mr. De Berenger's being dressed in a military uniform, but there being nothing to fix on his lordship's mind the colour of the uniform, the sort of dress in which he had been accustomed to see Mr. De Berenger presented itself to his lordship's mind, as the dress De Berenger wore when his lordship saw him last. Gentlemen, I have now made all the observations that have occurred to me on this affidavit; I cannot, however, take my leave of it, without again intreating you to consider the circumstances under which it was made; remember Mr. Wright's evidence, and say if any thing can more strongly evince Lord Cochrane's consciousness of his innocence, than the publication of this affidavit. Gentlemen, you have been told, and truly told that Lord Cochrane is a public character. From the high station in which he was born, and the still higher place in the eyes of his countrymen to which his public services have raised him, his lordship may, without indulging any blameable vanity, one day expect to fill one of the proudest situations in the country.
Is a man so circumstanced likely to commit so sordid a crime as that with which he is charged? No prospect of gain could hold out any temptation to Lord Cochrane to put in hazard what he now possesses.
The public character which you have been reminded he possesses, would of itself repel such a charge as that which is made against him, though it were supported by much stronger evidence than has been offered in support of this indictment.
Gentlemen, I come now to the case of Mr. Cochrane Johnstone; and with respect to him, I find that the charge is attempted to be made out against him upon these grounds; first of all, that he was a very great speculator in the funds. Gentlemen, I charge again upon the Stock Exchange the same unfair mode of proceeding, with respect to Mr. Cochrane Johnstone, which they pursued in the case of Lord Cochrane: with respect to Mr. Cochrane Johnstone, they take up the case, I think, on the 8th, but my learned friend applied his observations principally to the 12th of February. Now, gentlemen, so far from that being a fair statement of the transaction, it appears most clearly, that Mr. Cochrane Johnstone had been speculating in the funds, and speculating as desperately from the month of November, as he was in this month of February. But another thing is pressed against Mr. Cochrane Johnstone, the largeness of his balance on the 21st of February, which is stated to be L.420,000; now, gentlemen, I am astonished that the Stock Exchange should instruct my learned friend to say any thing to you upon that subject, producing the account which they have produced; if Mr. Cochrane Johnstone had never had so large a balance before, there would have been something in the argument; but cast your eye up that page, and you will find that Mr. Cochrane Johnstone, who is supposed to have been desirous of getting a quantity of stock into his possession, to sell on the 21st of February, had on the 14th L.615,000; so that this gentleman, who is supposed by the prosecutor's case, to have meditated a fraud by the sale of stock on the 21st, is found reducing his balance immediately before that day from L.615,000 to L.420,000; to contrive and carry into execution such a trick as that which has been practised, must have taken many days. It certainly must have been in contemplation as early as the 14th, how then can the prosecutors account for Mr. Johnstone's conduct in selling between the 14th and 21st, if Mr. Cochrane was one of the persons who had been contriving to put into his possession all the stock that he could purchase, for the purpose of selling it on the 21st; this is so entirely inconsistent with what must have been the view of a man engaged in a transaction of this sort, that a view of this paper is sufficient to show that there could not have been such an intention; look at this paper, and you will see what he was in the habit of selling; look at his daily sales, and you will find that he began selling; on the 9th that he sold L.10,000, on the 10th L.105,000, on the 11th L.35,000, on the 14th L.100,000, on the 16th L.10,000, on the 17th L.19,500, and on the 19th, this gentleman, who is supposed to have meditated such a fraud as this on the Monday following, sells out L.18,000. Let any man in his senses, any man not carried away with the feelings which agitate the Stock Exchange, in consequence of their having been outwitted; for these sharps, who are called flats by one of the witnesses, did not like to be taken in by other sharps. Let any dispassionate man look at this paper, and say whether Mr. Johnstone could have contemplated the rise in the funds that took place on the 21st.
Gentlemen, it is said that he made a very large profit; that will not prove much, because he was making this sort of profit on several occasions before. What was the general habit of his business, as to the Stock Exchange? Why, that he was content with a very small profit, constantly telling his brokers, that whenever they could get a profit they were to sell, and he was acting in the very same way, until the day on which this transaction took place.
Gentlemen, I have also to observe particularly, that though he did go into the city on the Monday morning, he was in the habit of going every morning; he did not get there any earlier on that day than on any previous day, and so far from his being concerned in the sale of this stock, a very considerable quantity (Hichens speaks to L.50,000) had been sold before he or any one of these gentlemen came there; how is it possible therefore to say, from the circumstance of his being possessed of this stock, and selling it, that he was implicated in this transaction; on the contrary, I ask you, looking at the whole of this evidence, ask yourselves this plain question, whether he was not selling on the 21st upon the same principles as he had been selling to an immense amount on the preceding days on which sales had been had?
Gentlemen, with respect to profit, I believe that will appear somewhat different from what it has been stated, if you cast up the amount of profits. We are sought to be charged with a fraud. Why? because these three gentlemen all together made a sum of L.10,000, which, however, these gentlemen of the Stock Exchange have put their hands upon, and nobody is likely to get at, as they state it; I believe the whole did not amount to more than L.6,000, but the prosecutors state it at L.10,000, that is to be divided among the three, another person taking a share too; but if profits have any thing to do with it, you will find the sales made by Mr. Cochrane Johnstone alone on the 17th, produced a profit of above L.8,000; how, therefore, can you presume, merely from the circumstance of the profits made on the 21st, that he was connected with this conspiracy? Gentlemen, he was near the Stock Exchange, and if in the secret, he certainly would have availed himself of the practice to which I have alluded, namely, selling at a favourable moment, stock he was not in the possession of; all the brokers have been examined, and not one of them has been able to tell you of one single shilling stock sold by these gentlemen, or either of them, of which they were not actually in the possession. It is impossible, if he is so rapacious a man as to engage in a speculation to ruin his fortune and his character, to account for his not taking advantage of such a state of things.
Gentlemen, next to the profit made by Mr. Cochrane Johnstone, is his having been engaged to take a house for Mr. Fearn; and here I was led to expect that my learned friend would falsify the statement made upon oath by Mr. Cochrane Johnstone; he was to prove, that what he had sworn to, or offered to swear to, of his not having taken the house was untrue; it is enough for me to say, that that is not proved; it is an unfounded statement of my learned friend, proceeding from misinstructions which have been given to him by his clients; but on the subject of taking this house, my learned friend must have felt the distress of his case when he pressed it upon you.—Why, gentlemen, what are you desired to find? not that these parties were generally engaged in stock-jobbing transactions; not that these parties had conceived an intention of dealing for a continuance in the stocks; but that they had planned a scheme by which, at one stroke, they were to cheat all persons who came to engage with them in the Stock Exchange; the fraud was to be over in a single day; they wanted no office for that; that could be wanted only for the purpose of carrying on that scheme of stock-jobbing, which these persons began in November, and have actually continued long subsequent to the 21st of February; but does it not appear that my learned friend is wrong in his instructions. According to the papers we have seen (most improperly circulated) a house was taken for Mr. Fearn, without his knowing any thing about it; and Mr. Fearn found himself seated in the office, without knowing how he came there.—Does that turn out to be the fact? No; it turns out that Mr. Butt had an office before, which he did not like; Mr. Cochrane Johnstone took another office for Mr. Butt; Mr. Fearn came to look at Mr. Butt's office, liked it, and it was kept for him. In consequence of this, this office, which you are told was taken by Mr. Cochrane Johnstone for Mr. Fearn, without his knowledge, was taken by Mr. Fearn for himself, because he found the house to be a convenient one; and it was suggested to him by his friends, that such a house would be extremely convenient to them. Upon this, Mr. Butt agreed to give up one of the rooms he had, and allowed Mr. Fearn to take possession of that room. Gentlemen, there is another thing which proves that the taking of this house had nothing to do with this particular day; you find, that Mr. Fearn not only continued to possess these rooms, sticking up his name there, but that he liked them so well, he has since taken the whole house, and now continues to occupy it.
Gentlemen, what is the next head of evidence pressed against Mr. Cochrane Johnstone? It is, that Mr. Cochrane Johnstone called, and left a letter on Saturday the 26th, at the lodgings of Mr. De Berenger. Gentlemen, in the first place, I have to observe, that it was but very loosely and unsatisfactorily proved, that Mr. Cochrane Johnstone was at the house of Mr. De Berenger on that day; but I will admit it, for that is the best way, perhaps. I never have denied, that Mr. De Berenger was acquainted with Mr. Cochrane Johnstone; I never denied that they were in the habit of dining together, and if they were, where was the harm of his leaving a note at the house of Mr. De Berenger.
Gentlemen, I did expect, as there has been so much activity (an activity by the bye that has gone beyond the proper line) in seizing the papers of this gentleman, that we should have seen the letter that Mr. Johnstone left at De Berenger's; but no such letter is produced, and although the prosecutors have got possession of every paper belonging to De Berenger, not a scrap of paper has been produced in the handwriting of my clients; all that is proved is, that Mr. Cochrane Johnstone called upon De Berenger, as one acquaintance would call upon another. Gentlemen, God forbid, that because he does so, it should be conceived that he is a party with Mr. De Berenger in this scheme, if he has been concerned in it.
Gentlemen, the next attempt is this, and a miserable one it is; all possible means have been had recourse to, for making it out; for not only has Mr. Basil Cochrane's servant been subpoenaed by the Stock Exchange, to prove who are the persons dining at his house, but the females of this family have been subpoenaed to this place, and kept here for the purpose of proving the same facts which might have been admitted at any hour of the day, and not only subpoenaed, but that subpoena sent by a person whose presence was the most insulting of any one who could have been selected in this town, and who could have been selected for no other purpose than that of offering insult to the members of this family.
Gentlemen, the next circumstance in this case is, that some money was found in the chest of Mr. De Berenger, which certainly had passed through the hands of Mr. Cochrane Johnstone. Gentlemen, I think you have a clue already given you, by which you can account how De Berenger became possessed of Mr. Johnstone's money. But I shall offer other evidence on this part of the case; I will shew most satisfactorily how that money came into De Berenger's hands. You have had it proved already, that Mr. De Berenger is an extremely ingenious artist; you have had it proved, that he was engaged by Mr. Cochrane Johnstone, for the purpose of planning a new Ranelagh, to be called Vittoria, near Alsop's Buildings. Now, I will prove to you, by a witness I will call, that part of this money was paid by Mr. Cochrane Johnstone to De Berenger, for the plans he had drawn for Mr. Johnstone of the projected garden; and the remainder was lent to Mr. De Berenger on his note of hand, by Mr. Johnstone. Fifty pounds was advanced in September last, when the plans of the garden were begun; and L.200 more was paid in the month of February, the 25th or 26th of February. Mr. De Berenger, at the time he was paid for his plans, stated that his distresses were such, that though what he had received was all he had a right to ask of Mr. Cochrane Johnstone, in satisfaction of that which was due to him for what he had done at Vittoria Gardens, yet he hoped Mr. Cochrane Johnstone would advance him L.200 more, by way of loan. Mr. Cochrane Johnstone was exceedingly desirous of relieving the distresses of Mr. De Berenger; but he would not do it, unless he found he would be effectually relieved by the proposed loan. I will prove to you, therefore, that he took same days to consider of it; and on being satisfied on that point, he did lend De Berenger another L.200; and this money was paid in that manner to Mr. De Berenger and Mr. De Berenger has given his note for it, payable in six months.
Gentlemen, my learned friend told you, that bank-notes were good things to trace crimes; certainly they are. The finding of the notes puts me to give some account of them. I will do that by the evidence I have stated; and I have a foundation laid for the proof that I shall offer, by the evidence produced already in the cause. I have seen the plans; you shall see them; and after you have seen them, if you are called upon by the evidence produced in this cause to convict De Berenger, which I hope you will not be, you will lament that you are bound to convict a man whom you will find to be possessed of so much ingenuity and taste. You will find that the sum paid is but a small remuneration for the attention he had paid, and the skill he had bestowed, in the service of Mr. Cochrane Johnstone; but whether he was well or ill paid is not the question; the payment of the money, I admit, renders some explanation necessary, and I will give it to you.
Gentlemen, I come now to the case of Mr. Butt; and with respect to him the case is very much like that of Mr. Cochrane Johnstone, therefore I shall have occasion to trouble you with but few observations. He is found to have had a large balance on the 21st of February, but he had as large a one before; he sold on this day, but he had sold a much before. He made only L.1,300 on that day; he had made much more on other days; there is not an atom of evidence connecting him with Mr. De Berenger; but the taking of the office applies to him as well as to Mr. Cochrane Johnstone, and also the circumstance of some notes being traced into his hands. Here, gentlemen, I have a difficulty with respect to Mr. Butt, which I cannot explain by evidence so well as I can the transactions of Mr. Cochrane Johnstone; but I am persuaded you will feel that I can, by observation, as completely relieve him from the effect of those notes being in the hands of Mr. De Berenger, as I have Mr. Cochrane Johnstone. I will shew you, by the testimony I shall call, that this debt discharged to Mr. De Berenger, or the sum advanced by way of loan, was principally paid in one pound notes; if so, that will account for the whole of these one pound notes; and as to its going through the hands of Mr. Butt instead of Mr. Cochrane Johnstone, is it any thing wonderful, when you find him acting as a sort of agent for Mr. Cochrane Johnstone, that they should have passed through his hands? But it will appear, that all the notes found in the trunk of Mr. De Berenger got into that trunk, either through the loan or payment of Mr. Cochrane Johnstone. One of the witnesses called for the prosecution has proved the payment by Mr. Cochrane Johnstone of the sum of L.200; but whether that relieves him from the whole or not, are you to say a man is guilty of a conspiracy on such a ground as this? I cannot call these persons for each other; being joined in the indictment, I am deprived of that opportunity. I do not find fault with the prosecutors so doing; but you must be content, under these circumstances, with the best explanation I can offer to you, with respect to that which appears against this gentleman. I shall offer you the best evidence the nature of the case admits; and I cannot do more. If direct evidence cannot be offered, you will not expect it, as my learned friend says on the part of the prosecution, I say on the part of the defendants, and much more strongly. If you see my clients offer you the best evidence the nature of the case admits of, with that I am sure you will be content.
Gentlemen, with respect to Mr. Butt, there is not a tittle of evidence bringing him into connection with Mr. De Berenger; no man has proved that ever they were seen in the same room; no person has ever brought them into connection together; and it is merely because Mr. Butt is a great purchaser of stock, and some of Mr. Butt's money is found passing through the hands of Mr. Cochrane Johnstone into the hands of Mr. De Berenger, that you are desired to find them all connected together in this conspiracy.
Gentlemen, I have divided these three persons cases; but there is an observation common to all the cases, which I feel it my duty to make to you. My learned friend said, he could not put them in the same room together; but I think if these persons were conspirators, he would have found no difficulty in bringing them nearer together than he has done. I think he might have shewn, that about the Stock Exchange, or at some place or other, they were at some time or other all acting together; we have eight or nine different persons, Mr. de Berenger, Mr. Cochrane Johnstone, Mr. Butt, Lord Cochrane, Mr. Sandom, Mr. Holloway, Mr. Lyte, Mr. M'Rae, all charged as co-conspirators; did any man ever see all these persons together; between a great number of them there is not the least proof of connection; you are desired to find a conspiracy proceeding upon this supposition, that all these parties were acting in concert; and yet between two of the parties, there is no more connection proved to have existed, than there is between you and me, or you and any one of these parties.
Gentlemen, this observation I should have a right to make on any case of a conspiracy. I should have a right to say, it is too dangerous to say these persons were engaged together in a conspiracy; but, Gentlemen, permit me to call your attention to a particular fact proved in this case which negatives the connection of my clients in this conspiracy;—you have two persons who are stated to have made a confession of their guilt; one of these gentlemen appears to have felt the impropriety of his conduct, and in a moment when he had recollected himself, and recollected the offence of which he had been guilty, had gone with a mind disposed to make the fullest compensation that he could to those whom he had injured, and to state all that he knew of the transaction; he goes and he states, that having heard that a Mr. M'Rae was willing to give up the persons who were parties to this conspiracy, on the payment of a large sum; he considers it improper, that the Stock Exchange should be plundered of this large sum, by the extortion of Mr. M'Rae; and therefore, to prevent their paying this large sum to Mr. M'Rae, he (Holloway) goes to the Stock Exchange, and tells them all that Mr. M'Rae could tell them; and what does he say; it would have been enough if he had not said that Mr. Cochrane Johnstone, Lord Cochrane, Mr. Butt and himself, were connected; but he says, in the most distinct terms, that he knew nothing of Lord Cochrane, Mr. Johnstone, or Mr. Butt. The way in which the case is put to you, is, that all these parties were acting altogether; if so, one of the actors must know who were the other persons that were engaged; and Mr. Holloway, who was an actor, declares that he knew nothing of either Mr. Cochrane Johnstone, Mr. Butt, or Lord Cochrane; but Lyte, who was present when Holloway made this declaration, does not contradict; he acknowledges his own guilt, and asks for mercy, but he does not attempt to inculpate my clients. I ask, are you against evidence; against the evidence offered by the prosecutors, for this evidence forms a part of the prosecutors case, to say that these persons were connected with the conspiracy.
Gentlemen, if Mr. Holloway could, at the time he was disposed to make confession of his own guilt, have gone the length of saying, I can prove that Lord Cochrane is a conspirator, I can prove that Mr. Cochrane Johnstone is a conspirator, he would not have been here to-day to answer for his crime; he would not only have been paid, but most amply rewarded, if he could have given any testimony by which the conviction of my clients could have been obtained.
Gentlemen, there is another circumstance I must take leave to press upon you. It seems to me that a conspiracy of this sort could never be carried into effect without some broker being concerned in it. If my clients had been concerned, they would certainly have consulted some of the brokers who have been examined. It is impossible that they could have kept the secret from these brokers; and yet I think it is perfectly clear that they knew nothing of it. It is not pretended by the prosecutors that they had, and from the fairness with which they have given their evidence, it is but just to acquit them of any participation in it.
Gentlemen, I beg to be understood in what I am now about to say, as not intending to impute any thing wrong to Government or to the Stock Exchange; though I think I may venture to say, that what has been done as to the breaking open the trunk, and the searching for these papers, cannot be justified by law; for I know of no law that justifies the Government of the country, or any magistrate whatever, in breaking open trunks and taking away papers on suspicion of a misdemeanor; yet I am not disposed to impute blame to public officers, when impelled by proper and adequate motives, they go a little beyond the strict letter of the law; but where such powers have been exerted to detect guilt, if guilt had existed, it could not have escaped detection. There has been a degree of activity exercised to bring home the guilt to these persons, which I never saw on any former occasions; liberties have been taken which I never saw in a case of misdemeanor before. All De Berenger's papers have been ransacked and taken from him, at a moment when he could have no idea that they would be taken, and therefore could not have destroyed or secreted any, and yet not a single paper is found (but the bank notes), not a single letter; the parties to the conspiracy are never brought together in connection, and it does not appear that there has been any communication by letter. Here seems to be a conspiracy without any possible means of conspiring. I do not see how men are to conspire without communicating with each other, and I am not aware of any other modes of communication than conversation or writing; yet you are desired to find several persons guilty of a conspiracy, without any communication having been proved to have been had between them, and without any writing of any sort having been found.
Gentlemen, there is one other circumstance to which I would wish to allude; not that it concerns my clients, for I am persuaded his lordship will tell you the evidence given by that extraordinary man, Le Marchant, does not bear upon either of my clients, because though where several engage in a conspiracy, you may offer evidence that will affect any one of them, yet the declarations of one cannot affect another; now Mr. Le Marchant was never in the company of Lord Cochrane, he never heard one word that Lord Cochrane said; all that he speaks of are conversations with Mr. De Berenger, which may be evidence against Mr. De Berenger, but in point of law or common sense are no evidence against Lord Cochrane; but I will dispose of this man for the sake of the country, that he may never be sent out of the country in any office. I will shew you that he is a man utterly unworthy of credit, for I will prove to you by his own letters that he comes forward to-day, because Lord Cochrane has refused to lend him money; gentlemen, I have a letter of his, in which he desires to have an interview with Lord Cochrane; he has admitted his own hand-writing to the letters, which I will by and by put in. Lord Cochrane very properly gives no answer to the first letter desiring an interview; on the 7th of April 1814, the first being on the 6th April; on the very next day, Lord Cochrane not answering him, he writes an impertinent letter to Lord Cochrane, which you shall hear read; but I produce it for the purpose of introducing the letter which he admits Lord Cochrane wrote to him, and his answer, from which I argue Lord Cochrane's innocence, and this man's infamy. If Lord Cochrane had felt himself a guilty man, he would not have denied this man when he suggested that he could be of use to him in this cause, but you will find from Lord Cochrane's letter, he says, "I should have hoped, that circumstanced as I am, and attacked by scoundrels of all descriptions, that a gentleman of your understanding might have discovered some better reason than that of silent contempt."
Mr. Gurney. My learned friend has not yet proved that letter.
Mr. Serjeant Best. I proved that he had the original in his hand; this is the letter of the guilty Lord Cochrane to the innocent Mr. Le Marchant, in answer to the two applications for an interview. "Sir, I should have hoped, circumstanced as I am, and attacked by scoundrels of all descriptions, that a gentleman of your understanding might have discovered some better reason than that of silent contempt;" that is, what he complains of to Lord Cochrane in his second letter, "to account for the delay of a few hours in answering a note; the more particularly as your note of the 6th led me to conclude, that the information offered to me, was meant as a mark of civility and attention, and was not on a subject in which you felt any personal interest." A more prudent letter than that, I defy any man in Lord Cochrane's situation to write. A guilty man catches at any twig, but Lord Cochrane does not answer this gentleman at first, and when pressed by a second letter, he tells him the reason; it is unsafe you and I should meet, I cannot trust you, I am surrounded by scoundrels who are attempting to charge upon me a crime of which I know I am innocent.
Gentlemen, having stated to you in what light this letter shews Lord Cochrane, I beg to read you the last letter of this man, who has offered his evidence to-day; and I will then ask you, whether upon the testimony of such a man as this, you will convict one of the most suspicious characters that ever was produced in a court of justice; whether you would in any cause, of ever so trifling importance, give the least consideration to it. "I ask your lordship's pardon of my letter of yesterday, and which was written under the supposition of being treated with silent contempt;" so that this gentlemen put the true construction upon it, certainly. "To convince you of the high respect I have for your lordship, I have the honour to enclose to you a statement of what I know relative to the 21st February, and I also now declare solemnly, that no power or consideration shall ever induce me to come forward as an evidence against you, and that all I know on the subject shall be buried for ever in oblivion. Thus much I hope will convince you I am more your friend than an enemy, as my testimony, corroborated by the two officers, would be of great import, not (believe me) that I myself doubt in anywise your lordship's affidavit; but De Berenger's conversation with me, would, to your enemies be positive proof. As for my part, I now consider all that man told me to be diabolically false;" and yet he has to-day come forward to tell you the truth, and the whole truth; he has told you what De Berenger said, and has not stated the qualification, that he did not believe one word of it. "If my conduct meets your approbation, can I ask for a reciprocal favour, as a temporary loan, on security being given; I am just appointed to a situation of about L.1,200 a year, but, for the moment, am in the greatest distress, with a large family; you can without risk, and have the means to relieve us, and, I believe, the will of doing good. Necessity has driven me to ask your lordship this favour; whether granted or not, be assured of my keeping my oath now pledged, of secrecy." He has kept that oath, I dare say, as well as he has kept this; he went and gave information, and comes forward to-day to give evidence; you remember how he fenced with the evidence. I ask you, whether you believe, after I have read this, one word of what he has said. I ask you, whether this is not taking advantage of the situation of this noble lord. I am sorry to see that a man can act so scandalous a part, who has the honour of being appointed to a situation of L.1,200 a year; but I am quite satisfied the moment the Government know this, that suspension which does exist, will be continued, and that this man will never be sent to the office to which he was destined. I am quite satisfied, that when this letter is read, you will feel, that even as it respects Mr. De Berenger, for it is applicable only to him, his evidence can have no influence in any court of justice whatever, for that it comes from a man who, in the clearest and most unequivocal manner, declares himself most infamous, and most unworthy of credit.
Gentlemen, I am conscious that fatigued as I felt myself, when I rose to address you, after having been thirteen or fourteen hours in court, I have very imperfectly discharged the duty which I owed my clients; but, gentlemen, I hope they will not suffer, from not having their case presented to you as it ought to have been. Gentlemen, I do not press upon you the considerations which, in criminal cases, are often pressed, and with propriety pressed, upon juries. I do not ask you to take this case in a merciful point of view; I do not press upon you the common observation, to temper your justice with mercy. I ask you to look at this case fairly and impartially; if the guilt of these gentlemen be made out, so that you, upon your oaths, must declare them guilty, say so, dreadful as will be the consequence to all these parties; but unless their guilt is made out, if there be nothing but suspicion, you will not, upon your oaths, say that suspicion is conviction.
Gentlemen, you will recollect the situations of life in which all these men are; they have all up to this moment been the best possible characters, two of them are persons of very high and distinguished situations in life, members of a very noble family; and with respect to one of them, he has reflected back on a long and noble line of ancestors, more glory than he has received from them; and it would be the most painful moment of my life, if I should to-night find that that wreath of laurel which a life of danger and honour has planted round his brows, should in a moment be blasted by your verdict.
MR. PARK.
May it please your Lordship;
Gentlemen of the Jury,
If my learned friend, at the close of his address to you, thought it necessary to make an apology for the fatigue which he had endured in the course of this day, and during his address to you; it becomes much more necessary for me to make such an apology, when it is now sixteen hours and a half since I left my own dwelling. Gentlemen, notwithstanding that, I have a very serious and important duty to discharge to the person who now sits by me, and I have no difficulty in calling upon you, in the most serious manner, fatigued and exhausted as you may be, for your attention; you must not permit, I take the liberty of saying, as you regard the oath you have taken, you must not permit that fatigue to disable you from attention to the statement and the evidence that are to be laid before you.
Gentlemen, the case has become an extremely serious and a most important one; for the gentlemen for whom my learned friend the Serjeant has addressed you, I have nothing to say; they have been well and ably defended; but I am to address you on behalf of a gentleman totally unknown to me till this day, when I saw him in Court. He is represented to me as a gentleman of very high descent, and though he has been unfortunate in his pecuniary circumstances, he has been proved, before you to-day, to be man of very considerable attainments, and of high and literary character; it is therefore your duty, and I know it is a duty you will honestly and faithfully discharge, not to allow what my learned friend cautioned you well against, but immediately fell into the very same course himself; not to allow any thing like prejudice to bias any of your minds.
Gentlemen, I am no flatterer of persons who sit in your place; and I have no difficulty in telling you twelve gentlemen, that, though I have no doubt you are honorable men, you cannot have lived in this city, in which you are all merchants, for the last two months of your lives, without having every hour of the day, and at every meal at which you sat down, had your ears assailed by accounts of this transaction, and there is no one, however honourable he may be, who can prevent his mind being biassed by circumstances stated in common conversation. Gentlemen, I only know this matter publicly; but I declare one could hardly go into any company, where the discourse has not been turned upon this very circumstance we are now discussing; how difficult is it then for you to recollect, that you are not to decide upon any thing you heard before you came into that box, but upon the evidence produced before you. But, did my learned friend himself follow that course which he prescribed to you? Did he embark no prejudice into this matter? My learned friend will give me leave to say, that I own it is quite new to me, that in discussing criminal matters, the counsel for the prosecution are to argue it and labour it as they would a cause between party and party:—I dare say I have been extremely faulty in that respect, but having been engaged in criminal prosecutions, chiefly in the service of His Majesty, I never thought myself at liberty so to treat criminal prosecutions. I have generally acted on the opposite scheme, and mean, till corrected, so to continue to act; but at all events, I am surprised that my learned friend, with whose good nature in private life we are all acquainted, should have introduced before you, that which I say my learned friend's great experience in courts of justice told him, before he pronounced it, he had no right to read in evidence before you. I do not speak lightly of this; you will remember we had an affidavit, supposed to have been made by William Smith, read verbatim from some pamphlet my learned friend had in his hand; he knew perfectly well that it could not be given in evidence; if William Smith was called as a witness, undoubtedly my learned friend might ask him, whether he had not sworn the contrary at another time; but it will be for my learned friend to explain to you, under what rule it was, that he was at liberty to read such a document as a part of his speech, which, by the rules of law, could not be received in evidence in this place.
Gentlemen, there was another circumstance which my learned friend has introduced to prejudice this case; and unless I have deceived myself, or my ears have deceived me, I have heard no such evidence given in the cause, as my learned friend stated; a stronger statement to prejudice could hardly be made in a case of this sort; but I heard no such question put to Wood, the messenger, and I listened with all the attention I could to his examination.—My learned friend stated, that Mr. De Berenger had been extremely anxious to get back into his hands the identical notes; that no other notes would serve him; that he must have those notes, and those only delivered back. Was this stated without any reason by my learned friend? Certainly not; it would have been, if the fact had corresponded with the statement, an extremely strong argument on the part of my learned friend against this gentleman for whom I am counsel. But my learned friend, and his learned coadjutors, never put to any witness, at any one period of this cause, the question, whether Mr. De Berenger made any such application to their knowledge? and all this is a gratuitous statement of my learned friend, but a statement that went to prejudice, or was intended to prejudice, your minds upon the subject, and it undoubtedly was very important.
Gentlemen, this may have been said in places unknown to me; it may have been said in newspapers for aught I know to the contrary; but, thank God, I never read newspapers with that attention some gentlemen do, for I think it is a great waste of time. If men are in public situation, they must read them; but I have heard no statement in evidence of that circumstance, which my learned friend Mr. Gurney so much relied upon, and so much reasoned upon in his statement to you.
Gentlemen, it was also said, that there had been publications in this case; I do not know by whom those publications have taken place. There was some evidence given by Mr. Richardson, of a publication by Mr. Butt; that I suppose my learned friend has seen; I have not; but I do not go along with my learned friend in this; I do not agree, that these are the necessary consequences of a free press; I have always been of opinion, and always shall, because it is firmly rooted in my mind, that all previous publications on one side or the other, tending to inflame the minds of the Jury, who are to try questions between the King and his subjects, or between party and party, on whatever side they may be published, are most highly and extremely improper. I think it is a disgrace, that the press of this country has engendered such an avidity in the public mind to have these things detailed to them; that they indulge it to a degree subversive of all justice. Hardly a case has happened within our own observation of late years, that the whole of the case has not been detailed before it came to trial, so that it is impossible but that the minds of the jurymen (and men cannot divine whether they shall be jurymen or not) should receive a bias upon this subject; but it is very hard that all the obloquy which such publications merit, should be thrown upon the defendants. Did that self-constituted Committee of the Stock Exchange, of which I shall speak much more plainly by and by, and tell you what I think of that committee; did that self-constituted Committee of the Stock Exchange, who have brought forward this as a charge against the defendants, make no publication; did they not placard on the doors of their Stock Exchange, the names of these gentlemen, members of the legislature, and persons standing so high in the country? Why did they set so infamous an example? I admit to follow it was bad; but to set it, I insist, was much worse. |
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