The Trial of Charles Random de Berenger, Sir Thomas Cochrane Part 139

Your Lordships having listened to those who had any thing to offer which they considered material for their defence, emboldens me to trust that your Lordships, though I do not address you by Counsel, will grant me a similar indulgence, and even that you will extend that indulgence further to me on account of my not appearing by Counsel, for the reasons which I had the honour to state to you upon a former occasion. In order that those feelings which must agitate me on the present occasion, may as little as possible enter into what I have now to state, I have judged it proper to reduce it to writing; and in order to give the Court as little trouble as possible, to make my statement as short as the circ.u.mstances of the case appear to me to admit of.

It has been my very great misfortune to be apparently implicated in the guilt of others with whom I never had any connexion, except in transactions, so far as I was apprised of them, entirely blameless. I had met Mr. De Berenger in public company, but was on no terms of intimacy with him. With Mr. Cochrane Johnstone I had the intercourse natural between such near relatives. Mr. b.u.t.t had voluntarily offered, without any reward, to carry on stock transactions, in which thousands, as well as myself were engaged, in the face of day without the smallest imputation of any thing incorrect. The other four defendants were wholly unknown to me, nor have I ever, directly or indirectly, held any communication with them. Of Mr. De Berenger's concern in the fraud, I have no information, except such as arises out of the late trial. With regard to Mr. Johnstone and Mr. b.u.t.t, I am willing to hope that they are guiltless. They repeatedly protested to me their innocence. They did not dare to communicate any such plan to me, if such was projected by them, or either of them. Be they guilty, then, or be they, one or both, erroneously convicted, I have only to lament, that, without the most remote suspicion of their proceedings, if they, or either of them, were concerned in the fraud, I have, through my blameless intercourse with them, been subject to imputations which might, with equal justice, have been cast upon any man who now hears me. Circ.u.mstanced as I am, I must keep myself wholly unconnected with those whose innocence cannot be so clear to me as my own. Well had it been for me if I had made this distinction sooner.

I do not stand here to commend myself--unhappily, I must seek only for exculpation; but I cannot exist under the load of dishonour which even an unjust judgment has flung upon me. My life has been too often in jeopardy to make me think much about it; but my honour was never yet breathed upon; and I now hold my existence only in the determination to remove an imputation, as groundless, as it is intolerable.

The evidence which I now tender to your Lordship, will aid me in performing this duty towards myself, my rank, and my profession. I first offer the affidavit, which I have repeated at a risk which I formerly had no opportunity of encountering. I have been told, that I then incurred the moral guilt of perjury, without exposing myself to the legal penalties. I know nothing of such distinctions. I have repeated the statement upon oath--and I am now answerable to the laws if I have falsely sworn. The affidavits of three persons who saw De Berenger at my house on the 21st of February, fully confirm my statement, and I have only been prevented from bringing forward a fourth, by his sailing to a distant situation, before I could possibly stop him for this purpose.

The grounds upon which I have been convicted are these:--That notes were found in De Berenger's possession which had been changed for others, that had once been in mine. That De Berenger came to my house after returning from his expedition; and that my account of what pa.s.sed at this visit is contradicted by evidence.

The first ground has been clearly explained away; it amounts to nothing more than that which may happen to any man who has money transactions.

Mr. b.u.t.t voluntarily made purchases and sales of stock for me, and having received a small loan of money from him, I repaid him with bank notes which he used for his own purposes. He says that he exchanged these notes, and that a part of the notes which he received in exchange he paid to Mr. Cochrane Johnstone, who states, that he gave them to De Berenger in payment of some drawings; but with this story, whether true or false, I have no manner of concern, and consequently no wish to discuss it. In what way soever the notes which were received in exchange for mine reached De Berenger, I can only say, that mine were given to Mr. b.u.t.t in discharge of a _bona fide_ debt; and I have no knowledge whatever of the uses to which he applied them.

De Berenger's coming to my house, I before accounted for upon the supposition of his being unconcerned in the fraud; but is it not obvious that he might have come there to facilitate his escape, by going immediately on board of my ship, with the additional prospect of obtaining employment in America? It has been said that there was a suspicious degree of familiarity in his treatment of me and my house. I can only observe, that over his conduct I had no controul. But he knew, it seems, of my change of abode, which had occurred within a few days. I trust it will be recollected, that he is proved to have left town three days after such change, and that though not intimate with me, he had the means of knowing where I resided, even if he should not have enquired at my former lodgings, where my address was left. Indeed, if taking refuge in my ship, in order to facilitate his escape, was part of his scheme, it was very likely that he would have ascertained the precise place of my abode, previous to his quitting London. Again, I am said to have left the tinman's, (where I think I should hardly have gone had I expected such a messenger) as soon as I heard of the officer's arrival. I was in apprehensions of fatal news respecting my brother then in France, from whom I had received a letter but three days before, with the intelligence of his being dangerously ill; and I now tender you his affidavit, with the surgeon's certificate, dated the 12th of February, which he brought home with him. And therefore, on receiving the note from De Berenger, whose name I was unable to decypher, and as that note announced that the writer, whom I learnt from my servant had the appearance of an officer in the army, who was desirous of seeing me, I hastened to learn intelligence so anxiously expected; nor had I the least doubt that it related to my brother. When, however, I found that the person was De Berenger, and that he had only to speak of his own private affairs, the apparent distress he was in, and the relief it gave my mind to know that he was not the bearer of the news I dreaded, prevented me from feeling that displeasure which I might otherwise have felt at the liberty he had taken or the interruption it had occasioned.

Comments have been made on my saying so little to the servant who brought that note; but the fact is, I did ask him several questions, as appears by his affidavit. That I did not learn the name of the writer from the note itself, I have truly accounted for, by its being written so close to the bottom of the paper that I could not read it. This a.s.sertion is said to be contradicted by the circ.u.mstance of the writer having found room to add a postscript, as if there was only one side to the paper. Of the postscript I have no recollection, but it might have been written even opposite the signature. That I did not collect from the hand-writing, that it was addressed to me by De Berenger, is nothing extraordinary; my acquaintance with that person was extremely slight; and till that day I had never received more than one or two notes from him, which related to a drawing of a lamp. I was too deeply impressed with the idea that the note was addressed to me by an officer who had come with intelligence of my brother, to apprehend that it was written by De Berenger, from whom I expected no communication, and with whose hand-writing I was not familiar. All that I could afterwards recollect of the note, more than what is stated in my affidavit is, that he had something to communicate which would affect my feeling mind, or words to that effect, which confirmed my apprehensions that the writer was the messenger of fatal news of my brother.

If De Berenger had really been my agent in this nefarious transaction, how I should have acted or where I should have chosen to receive him, it is impossible for me to say: but I humbly apprehend that my own house was not the place I should have selected for that purpose. The pretended Du Bourg, if I had chosen him for my instrument, instead of his making me his convenience, should have terminated his expedition and have found a change of dress elsewhere. He should not have come immediately and in open day to my house. I should not so rashly have invited detection and its concomitant ruin.

But this is not the only extravagance of which I am accused. What supposition short of my absolute insanity will account for my having voluntarily made the affidavit which has been so much canva.s.sed, if I really knew the plot in which De Berenger appears to have been engaged?

Let me entreat your Lordships consideration of the situation in which I stood at the moment in which that affidavit was made; I was suspected of being connected with the pretended Du Bourg; if I had known that De Berenger was the person who had a.s.sumed that name, could I possibly have betrayed him, and consequently myself, more completely than by publishing such a detail to the world? The name of De Berenger was never mentioned till brought forward in my affidavit; which affidavit was made, as sworn by Mr. Wright, a witness on the trial, with the circ.u.mstance present to me, and remarked by me at the time I delivered it to him to be printed, that if De Berenger should happen to be Du Bourg, I had furnished a clue to his detection. The circ.u.mstance of his obtaining a change of dress at my house, never could have been known if I had not voluntarily discovered it; and thus I am represented as having brought him publicly to my own house, of being the first to disclose his name, and of mentioning a circ.u.mstance, which, of all others, it was the most easy to conceal, and, if divulged, the most certain to excite suspicion! Is it not next to impossible, that a man, conscious of guilt, should have been so careless of his most imminent danger?

My adversaries dwell upon some particulars of this affidavit, which they pretend to find contradicted in the evidence. The principle one is my a.s.sertion that Berenger wore a green coat. I have repeated this a.s.sertion upon oath, under all the risks of the law; and I also solemnly affirm, upon my honour, which I regard as an obligation no less sacred, that I only saw him in that dress. The witnesses on the part of the prosecution have a.s.serted, that he wore a red coat when he arrived in town. Granted. But may he not have changed it in the coach, on his way to Green-street? Where was the difficulty, and for what purpose was the portmanteau? My own fixed opinion is, that he changed his dress in the coach, because I believe that he dared not run the risk of appearing in my presence till he had so changed it. I tender affidavits of those who saw him, as I did, in his green coat, at my house. That he should have changed his dress before I saw him is most natural, upon the supposition of his wishing to conceal from me the work he had been about; but it is like many other confirmations of my innocence, fated to excite no attention in the minds of those who only seek food for their suspicions. Much is said of the star and other ornaments, as if any proof had been given of his wearing them in my presence. He took especial care, I doubt not, to lay them aside on his way, when he had divested himself of his official capacity, long before I saw him. The small portmanteau before-mentioned, which it is admitted he brought with him, in all probability furnished him with the green coat, and received the red coat and its ornaments, and very possibly for this reason no remark has been made upon it. A good deal of observation has been bestowed upon De Berenger's unwillingness to appear before Lord Yarmouth in uniform, and the inference was, that this uniform could not have been the green dress of his corps, otherwise he must have felt the reverse of uneasy at being seen in it by his Colonel. Does any volunteer officer go out of a morning to make calls in his regimentals? Could so unusual a circ.u.mstance have failed to excite remark from Lord Yarmouth? To me, indeed, he had explained himself--he had of necessity told me his nearly desperate state, in asking me to receive him on board my ship; but is there any thing so very incredible in the statement that he was unwilling to tell his whole case to every body? It may now doubtless be perceived, that he might have had other reasons for disliking to go out in a green dress.

Let it, however, be recollected, that my statement was, that he only asked me for a hat in lieu of his military cap, and that the black coat was my own voluntary offer. The idea of his applying to Lord Yarmouth, or to any other of his friends, originated with me, and I proposed it in consequence of his calling to my recollection the certificates he had received from them. I then had no suspicion awake, and I believed what he told me. In what manner the disguise was ultimately disposed of I can only conjecture, as any one else might, from the evidence given on the trial. He presented himself to me in a grey great coat, and a green under coat; and if the persons whose affidavits I now tender had been examined on the trial, and they did attend for that purpose, I do feel persuaded that a very different impression would have been made on the jury and the world at large, than that which they appear to entertain; and that your Lordships might have been disposed to take an opposite view of the case as it affected me. Those witnesses would have corroborated the particulars of my affidavit relative to De Berenger's dress, when I first saw him at my house, namely, a grey great coat, and a green under coat and jacket. Unfortunately, through some mistake or misconception, not on my part, they were left unnoticed, and, of course, were not examined. I have now to offer their several affidavits to your Lordships.

I would further submit to your Lordships, that my affidavit was made at the impulse of the moment, as soon as I heard that placards had been posted, stating that the pretended colonel Du Bourg had gone to my house; and in the conscious rect.i.tude of my own conduct, I not only introduced the name of the only officer I saw at my house on the day stated, but narrated every occurrence that took place, and all the conversation that look place at the interview, to the best of my recollection. If I am censured for having been too ingenuous in my communication, I trust it will be admitted, that as ingenuousness disclaims all connexion with guilt, it is indicative only of my innocence.

If your Lordships will be pleased to reflect on all that I have offered respecting De Berenger, and to bear in mind the avowed intercourse which I had with two other defendants, respecting whose conduct I have been compelled to speak at last upon a supposition of their guilt, I am confident you will perceive how easily any man living so circ.u.mstanced might have been placed in the very situation. But waiving the supposition of De Berenger acting under the direction of either of the other defendants, I do still contend, that any man who had stock concerns, and was slightly known to De Berenger, ran the same risk with me, of being driven into the ruin, which undeservedly, as I am still willing to hope, has befallen the others.

The artifices which have been used to excite so much prejudice against me, I unfeignedly despise, in spite of the injury they have done me. I know it must subside, and I look forward to justice being rendered my character sooner or later: It will come most speedily, as well as most gratefully, if I shall receive it at your Lordship's hands. I am not unused to injury; of late I have known persecution: the indignity of compa.s.sion I am not yet able to bear. To escape what is vulgarly called punishment, would have been an easy thing; but I must have belied my feelings by acting as if I were conscious of dishonour. There are ways, even of removing beyond the reach of ignominy, but I cannot feel disgraced while I know that I am guiltless. Under the influence of this sentiment, I persist in the defence of my character. I have often been in situations where I had an opportunity of showing it. This is the first time, thank G.o.d, that I was ever called upon to defend it.

The following Affidavits, handed in by Lord Cochrane, were read.

"In the King's Bench.

"The King _against_ Charles Random De Berenger, & others.

"Sir Thomas Cochrane, commonly called Lord Cochrane, one of the above named defendants, maketh oath and saith, That the several facts and circ.u.mstances stated in his affidavit, sworn on the eleventh day of March last, before Mr. Graham, the Magistrate, are true; and this deponent further saith, that in addition to the several facts and circ.u.mstances stated in his said affidavit, he deposeth as follows, (that is to say); That he had not directly nor indirectly any concern whatever in the formation, or any knowledge of the existence of an intention to form the plot charged in the indictment, or any other scheme or design for affecting the public funds. That the sale of the pretended omnium on the twenty-first day of February, was made in pursuance of orders given to his broker at the time of the purchase thereof, on or about the fourteenth of that month, to sell the same whenever a profit of one per cent. could be realized; and that those directions were given, and the sale thereof took place without any knowledge, information, hint or surmise on the part of this deponent, of any concern or attempt whatever to alter the price of the funds; and the said sale on the twenty-first took place entirely without this deponent's knowledge. That when this deponent returned home from Mr. King's manufactory, on the twenty-first of February, which he did directly after the receipt of a note, he fully expected to have met an officer from abroad, with intelligence of his brother, who had by letter to this deponent received on the Friday before, communicated his being confined to his bed, and severely afflicted by a dangerous illness, and about whom this deponent was extremely anxious; but this deponent found Captain De Berenger at his house, in a grey great coat, and a green jacket. That this deponent never saw the defendants, Ralph Sandom, Alexander M'Rae, John Peter Holloway, and Henry Lyte, or any or either of them, nor ever had any communication or correspondence with them, or any or either of them, directly or indirectly; that this deponent, in pursuance of directions from the Admiralty, proceeded to Chatham to join his Majesty's ship "The Tonnant," to which he had been appointed on the eighth day of February last; that the ship was then lying at Chatham; that previous to the eighth day of February, this deponent applied to the Admiralty for leave of absence, which was refused until this deponent had joined the said ship, and had removed her down to Long Reach; that this deponent in pursuance of those directions removed the said ship from Chatham to Long Reach; and after that was done, viz. on Sat.u.r.day the twelfth day of the said month, this deponent wrote to the Admiralty, to apply for leave of absence for a fortnight, for the purpose of lodging a specification for a patent, as had been previously communicated by this deponent to their Lordships; that leave of absence was accordingly granted for fourteen days, commencing on the fourteenth of the said month; that this deponent was engaged in London respecting the said specification, till the twenty-eighth of the said month, when the said specification was completed; and this deponent left town about one o'clock on the morning of the first day of March, and arrived at Chatham about day-light on the same morning; that on the eighth or ninth of the same month of March, this deponent received an intimation, that placards were affixed in several of the streets, stating that a pretended Colonel Du Bourg had gone to this deponent's house in Green-street; that he was on board the said ship at Long Reach, and in consequence went to Admiral Surrage, the Port Admiral at Chatham, to obtain leave of absence, which was granted previous to the receipt of the leave forwarded by the Lords Commissioners of the Admiralty; this deponent arrived in London on the tenth of that month, to the best of his belief; and that after his arrival, he himself, conscious of his own innocence, and fearing no consequences from a developement of every part of his own conduct, and desiring only to rescue his character from erroneous impressions made by misrepresentations in the public prints, he without any communication whatsoever with any other person, and without any a.s.sistance, on the impulse of the moment prepared the before-mentioned affidavit, which he swore before Mr. Graham, the magistrate, on the eleventh; that at the time he swore such affidavit, he had not seen or heard the contents of the report published by the Committee of the Stock Exchange, except partial extracts in the newspapers; that when this deponent understood that a prosecution was to be inst.i.tuted against him, he wrote to Admiral Fleming, in whose service Isaac Davis, formerly this deponent's servant, then was, under cover to Admiral Bickerton, at Portsmouth, and that Admiral Bickerton returned the letter, saying, that Admiral Fleming had sailed for Gibraltar; that this deponent sent his servants, Thomas Dewman, Elizabeth Busk, and Mary Turpin, on the trial of this indictment, to prove that an officer came to this deponent's house on the morning of the said twenty-first of February, and to prove the dress that he came in, but that the said Thomas Dewman only was called; and as this deponent has been informed, he was not interrogated as to the dress in which the said officer came to his house; and this deponent further saith, that had the said witnesses been examined, according to the directions of this deponent, and who were in attendance on the Court for that express purpose, they would, as he verily believes, have removed every unfavourable conclusion respecting this deponent's conduct, drawn from the supposed dress in which the said De Berenger appeared before this deponent on the twenty-first of February, and on which circ.u.mstance much stress was laid in the charge to the Jury, the said De Berenger's dress being exactly as stated in this deponent's former affidavit hereinbefore-mentioned; and this deponent solemnly and positively denies, that he ever saw the said De Berenger in a scarlet uniform, decorated by medal, or other insignia, and he had not the least suspicion of the said De Berenger being engaged in any plot respecting the funds, but merely believed he wished, for the reasons stated in this deponent's former affidavit, to go on board this deponent's ship, with a view to obtain some military appointment in America; and this deponent declined complying with his request to send him on board his ship, without permission or an order from the Lords of the Admiralty; and this deponent further saith, that he was in no degree intimate with the said De Berenger; that he had no personal knowledge of his private or public character; that he never asked the said De Berenger to his house, nor did he ever breakfast or dine with this deponent therein on any occasion whatsoever; and further, this deponent saith, that he hath been informed, and verily believes, that the Jury who tried the said indictment, and the Counsel for the defence, were so completely exhausted and worn out by extreme fatigue, owing to the Court having continued the trial without intermission for many hours beyond that time which nature is capable of sustaining herself without reflection and repose, that justice could not be done to this deponent.

_Cochrane._"

Sworn in Court the 14th June 1814.

"In the King's Bench.

"The King _against_ Charles Random De Berenger, & others.

"Thomas Dewman, servant to Lord Cochrane, maketh Oath and saith,----"

_Lord Ellenborough._ This was a person called as a witness on the trial; if the affidavit goes beyond what he then stated, or in contradiction to what he stated, it cannot be received.

_Lord Cochrane._ Would your Lordship permit me to explain the reason why he was not interrogated?

_Mr. Justice Bayley._ It is a settled rule, not to allow the affidavits of persons who might have been called upon the trial, much less of persons who were called.

_Lord Ellenborough._ And if any were not called, they were not called under the discretion of your Lordship. It would be a very dangerous thing, if persons whose evidence may have been discreetly kept back, should afterwards be admitted to come forward as witnesses.

_Mr. Dealtry._ The next is the affidavit of Sarah Busk.

_Lord Cochrane._ My humble hope is, that you will be pleased to grant a new trial, in order that these persons may have the opportunity of being examined: they were not called from an error in the brief, which (so little was I conscious of any partic.i.p.ation in the fraud) I had not even read.

_Mr. Gurney._ My Lord, the Counsel for the defendant were not uninstructed, as to the evidence which these persons could give; because, annexed to the affidavit which your Lordship has stated, of Lord Cochrane, were the affidavits of all the servants, of the one who is not now in England, as well as of the three who are in England. They are all printed together in Mr. b.u.t.t's pamphlet, which was produced at the trial. Therefore the Counsel for the defendant were informed of every circ.u.mstance, and they might, if they had thought it would serve their client, have called all those persons as witnesses.

_Mr. Justice Le Blanc._ There is no rule better established, than that after trial we cannot receive the affidavits of persons who were called, or who might have been called as witnesses. Whatever might be the reason for keeping back their testimony, that the Court cannot hear.

[_The following Affidavit was read._]

"In the King's Bench.

"The King _against_ Charles Random De Berenger & others.

"The Honourable William Erskine Cochrane, Major in the fifteenth regiment of dragoons, now residing in Portman-square in the county of Middles.e.x, on his oath saith, That he was seized with a violent and alarming illness on the first of January one thousand eight hundred and fourteen, at Cambo in the south of France; and that this deponent remained in a state of dangerous illness until the eighteenth of the following month. That early in February last he wrote to his brother Lord Cochrane, to acquaint his Lordship with this deponent's situation, as deponent had then very little hope of recovery, and telling him that he had received a notification that he would be ordered to England, where he should proceed, if ever able to undertake the journey. And this deponent further saith, that the annexed certificate was given to him for the purpose of being laid officially before a board of medical officers at Saint Jean de Luz, by the surgeon of this deponent's regiment, and is in the said surgeon's hand-writing.

_W. E. Cochrane._"

Sworn in Court, this 14th day of June 1814.

By the Court.

"Statement of Major the Honourable William Cochrane's Complaint. Monday, February 12, 1814.

"Was seized with the usual symptoms of fever on the 1st of January, which was continued for the first three days; then the remittent character developed itself. The evening paroxism was severe every day, and he was all through much worse on the third day than on the two preceding days. The treatment consisted in keeping the bowels perfectly free and the skin moist, and this was generally obtained by calomel and antimonial powder combined, in the proportion of two grains, and three every third hour, and an occasional purge of neutral salts. When the bowels were well emptied, I frequently gave saline draughts, which kept the skin moist and favourable for the exhibition of bark, the use of which was commenced the 16th day. On the 23d he had a crisis, and went on very well till the 1st of February, when he suffered a relapse, attended with rather alarming symptoms. There was great determination to the head, the eyes were suffused, great drowsiness, and a tendency to comae; however, these symptoms gave way in six hours, in which time he was actively purged, the skin was made moist, and a profuse perspiration kept up for twelve hours, which left him perfectly tranquil and free from fever. From this term I continued to give him small doses of calomel, till his mouth was very slightly affected. He continued free from fever from the morning of the 2d till the 7th; his appet.i.te good, his strength increasing, and every sign of health. On that morning he had a second relapse, but by no means so violent, though more embarra.s.sing; he has not been well since, and has suffered very much indeed. The treatment latterly has been attention to the state of his bowels and diet. He has not taken bark since his first relapse. I hope the change of air and objects will serve him.

_Tho. Cartan_, Surgeon, 15th Hussars."

_Lord Ellenborough._ This affidavit is not even material to shew, that Lord Cochrane was in possession of his brother's letter previous to the morning of the 21st of February, so as to account for a connexion existing in his mind between the note he on that morning received, and the state of his brother's health, which should induce him immediately on the receipt of it, to return home?

_Lord Cochrane._ I was not present at the trial, or those witnesses would have been examined.

_Lord Ellenborough._ But those witnesses would not have gone to this point, and your mind must have been drawn to it at the time you made your affidavit, when you came to mention your brother's illness?

_Lord Cochrane._ My brother's affidavit states, that he wrote to me early in the month, and I received his letter on the Friday previous to the fraud.