The Trial of Charles Random de Berenger, Sir Thomas Cochrane Part 140

_Lord Ellenborough._ That was capable of being most distinctly verified.

_Mr. Justice Bayley._ The original letter is not annexed to the affidavit?

_Lord Cochrane._ It is not; I had no idea of bringing the letter of my brother before a court of justice.

[_The following Affidavit was read._]

"In the King's Bench.

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

"Charles Random De Berenger, the above-named defendant, (having been found guilty of certain counts, but acquitted of the two first contained in this indictment,) maketh oath and saith, That he, this deponent, has zealously and loyally served His Majesty and this country as a volunteer, during a period of sixteen years, without ever receiving pay, remuneration, or reward of any kind, although by a most punctual and uninterrupted discharge of his various duties, his pecuniary interests and views were consequently greatly injured, but more especially during the time he acted as Adjutant, being for a period of near seven years, when his time was daily occupied more or less by the duties of that situation; and instead of drawing permanent pay, as is the usual custom of volunteer adjutants, he even put himself to considerable annual expences, to further the views of that service. And this deponent further saith, That the testimonials now produced in Court, as proofs of his energetic and loyal services, are of the proper hand-writing of the parties whose names are thereunto respectively subscribed. And this deponent further saith, That he has lost his paternal fortune, exceeding the sum of thirty-three thousand pounds, solely owing to his father's loyal adherence to the crown of Great Britain, during the American revolution; and that no indemnity of any kind has ever been given for such loss, either to his late father or to himself. That perfectly unprejudiced by such hard fate, this deponent constantly and without fee, or even condition for reward, has since, not only tendered his loyal a.s.sistance to this country to the utmost of his power, and in a variety of ways, but has actually given several important suggestions and communications, which although made use of by the offices of Government, still continue unrewarded. And this deponent further saith, that he lately lost a considerable fortune from the failure of an expensive and spirited endeavour on his part, having the formation of a national fund for the succour of artists, and the relief of their widows and orphans, for its object, whereby he was ruined a second time, and deprived, in consequence, of his liberty: that although distressed himself, and having numerous debts on his books due to him from Englishmen unable to pay, he has always been merciful to them.

And this deponent further saith, That he has already suffered a painful imprisonment, ever since the eighth of April last, by which his means of defence were not only decidedly impeded, but his strength and health most materially injured; that in this particular, as also in the mode of seizing his papers and property, he has suffered considerable hardships, while his slender pecuniary resources, from the aforesaid causes, and by the heavy expences of his confinement and trial, are totally destroyed; and that on these accounts his sufferings have been greater than those of any of the other defendants. And this deponent also saith, that any further degradation must ruin his prospects in life for ever, and bring anguish and despair upon him, who has already suffered so severely from his attachment to this country; and he respectfully hopes, that his severe losses and ruined circ.u.mstances, his general exemplary conduct, his uninterrupted loyalty, and his many unrequited services, will have due weight with this honourable Court, in mitigation of punishment; he also relies that considerations additionally stimulating to forgiveness, will animate his judges, when it is stated, that deponent to this moment has received no recompence whatever, for his many patriotic exertions and ruinous sacrifices; and above all, that in consequence of his not having succeeded in obtaining a respite of the judgment for a short time, he has been prevented from experiencing the benefit of important affidavits, which he anxiously expected from other persons.

_Charles Random De Berenger._"

_Mr. Topping._ I was of Counsel with Mr. Serjeant Best on the trial; I am not furnished with any affidavit on the part of Mr. b.u.t.t.

_Mr. b.u.t.t._ I came into Court, my Lord, expecting the privilege of asking for a new trial, upon certain facts which I have put down in my pocket-book.

_Lord Ellenborough._ You are not in time to move for a new trial.

_Mr. b.u.t.t._ I know I am not, my Lord; I was merely going to explain----

_Mr. Justice Le Blanc._ If you appear by Counsel, your Counsel had better state what you have to suggest.

_Mr. Topping._ I have no instructions on the subject.

_Mr. b.u.t.t._ I hope you will forgive my importunity in begging for a few moments to address you, having never been before in a court of justice, either as plaintiff or defendant; that I trust will plead my apology. If you will hear me, I shall be much obliged to you.

My Lords; I have been tried for conspiring with other persons, to raise the price of the public Government funds, and also for promoting a.s.sistance to those measures, by the changing of notes, and various other circ.u.mstances. I beg to a.s.sure your Lordships, that I do not address you on the idea or wish of a mitigation of any punishment you may think proper to inflict upon me; it is merely to express to you, that my sole wish and desire is to claim the indulgence of the Court, in permitting me to have a new and distinct trial, that I may clear my character from the cloud with which it is now depressed, and which had previously been without a blemish; as I am confident, if my case was separated from other persons in the indictment, it would be the means of my acquittal. It was my intention to have appeared in Court some days since, to have made the same request which I now do of your Lordships, had it not been for my Counsel informing me, that I should have been committed directly I entered the Court; and that the defendants should all appear before the Court could grant my request. This I found impossible to accomplish; and I declare, that the defendants, Sandom, Lyte, Holloway, and M'Rae, are all perfectly unknown to me; that I never directly or indirectly had any knowledge or communication or ever saw them in my life, neither did I ever see Mr. De Berenger more than two or three times. I beg also to acquaint your Lordships, that the bank notes which have been stated to have pa.s.sed through my hands must, unavoidably so have done, as I permitted, without thinking it any crime, at the solicitation of my friends, that all drafts connected with the Stock Exchange business should be paid in my name, whether I was in London or not; and I did at any time change notes, or lend Mr. Johnstone money, as a temporary accommodation, when he wished it; and yet it is a fact, that I had never seen Mr. Johnstone till the 2d of January last. But it is impossible for me, and certainly a case of hardship, that I should be answerable for the manner in which those notes might be disposed of afterwards. There appears no one witness on the trial, that can give any extraordinary reason for my having paid the notes alluded to by Mr.

Johnstone; for I might, hundreds of times, have paid notes to an equal amount to him, or to any other man.

My own conscience clears me of the offence laid to my charge, and so far was I from avoiding investigation, that I courted it, and instructed my Counsel not to take advantage of any flaw, should there appear one in the indictment, but to force the trial to issue.

I can only, my Lords, accuse myself of one fault, if it can be so called, that of being too generous and unguarded upon money affairs. I shall not intrude myself any further upon your Lordship's time, only a.s.suring you, that the magnitude of my concerns in the funds, upon which so much stress has been laid, was not, according to my calculation, any thing extraordinary, neither was the sum I held on the 21st February, an act of premeditation, my concerns being as extensive before that period as at that time, and my profit upon that day, which has been so much exaggerated, was only .1,300, instead of .3,000, as stated by the counsel for the prosecution. Whatever your Lordships decision may be respecting myself, I shall bow with submission, feeling conscious of my innocence of the charge upon which I have been found guilty.

MR. PARK,

My Lord, I am of Counsel for Mr. De Berenger, and it does not very often fall to my lot to be Counsel for a defendant in the situation he is in.

When we are so, we are always placed in a most painful situation; because it does not become the defendants themselves, much less does it become us, to offer any thing to your Lordships that may go in contradiction to the verdict. Undoubtedly, Mr. De Berenger is convicted, and he must abide the consequences of that conviction. His affidavit, I have seen only this morning; it seems to me to contain no exceptionable matter in it, which is not always the case; that certainly is a circ.u.mstance which one may fairly press upon the Court in favour of a defendant. He states to your Lordships what was to a certain degree confirmed by a n.o.ble lord upon the trial. If I recollect rightly, your Lordship has reported, that Lord Yarmouth stated in evidence, that this gentleman had conducted himself as adjutant to the volunteer corps of which he was commander, in a most exemplary manner. That was a character in which he received no remuneration; and he states to your Lordships also, that himself and his family were American loyalists, who suffered very considerably during the American war, in consequence of their attachment to this country; those are all circ.u.mstances which will meet with attention in your Lordships minds. In addition to this he has stated, what the circ.u.mstances of the case alone would convince your Lordships of without any affidavit, that being a defendant, under so expensive a prosecution, has occasioned him an enormous expence. That will be taken into consideration; and it will not be forgotten, although this gentleman cannot be said to have been imprisoned on this charge, it being of a nature to admit of bail, yet he has been upwards of two months in actual custody in the jail of Newgate; that is a circ.u.mstance which does not apply to any other of the defendants, and the Court will take it also into consideration in pa.s.sing sentence. I am quite aware he was taken up under a warrant of the Secretary of State, under the Alien Act; but his imprisonment had its origin in this charge, and to a certain degree it has deprived him of those advantages for his defence which the other defendants have enjoyed; I am not aware that I can better serve this gentleman, than by drawing your Lordship's attention to the circ.u.mstances which are contained in this affidavit; and I trust I have not said any thing calculated to increase the severity of his punishment.

_Lord Ellenborough._ Lord Yarmouth only speaks to the time during which he had known him to be acting as Adjutant; he states that he had known him since the year 1811.

_Mr. Park._ I do not know that Lord Yarmouth's statement went beyond that, I thought he had added something of approbation; but I submit to your Lordship, it is of itself sufficient proof of his good conduct, that he was so long continued in the situation.

MR. RICHARDSON.

My Lord; I am also of counsel for this unfortunate foreigner. I have no observation to make, except merely to call your Lordship's attention to this;--it is confirmed by Lord Yarmouth, that the defendant was a voluntary servant to the interests of this country, his services were therefore praise-worthy, and he appears by his affidavit to have been a material sufferer by the loyalty of his ancestors. These circ.u.mstances, I hope, will be taken into consideration by the Court. Your lordships also see, that he was a person in an extremely distressed situation, and at the time was suffering imprisonment, in consequence of the ruin of his fortunes, which he has mentioned.

_Lord. Ellenborough._ Is he in custody now under this charge?

_Mr. Park._ He is in custody in Newgate, my Lord, under the Alien Act.

_Lord Ellenborough._ There was no application made to put off the trial; a day was mentioned to the Court, and the counsel on both sides, stated their wish that it should come on; no impediment therefore existed in the way of the defence.

MR. SERJEANT PELL.

I appear, my Lords, on behalf of the three last defendants, Holloway, Sandom, and Lyte, men in a very different situation from the n.o.ble, but unfortunate person who first addressed your Lordships, upon the present painful occasion. The office I had to perform for these three defendants appeared to me on the trial to be a very difficult one; because with regard to them there was a direct confession, that they were in part guilty of that which was imputed to them. Holloway and Sandom, voluntarily confessed themselves guilty of all that part of the transaction, which related to the Northfleet affair.

_Mr. Justice Le Blanc._ There was a confession by two of them.

_Mr. Serjeant Pell._ But though they were the only persons who made a direct confession, yet I, upon the trial as counsel for Mr. Sandom, had no scruple in saying, that Mr. Sandom concurred in the confession which they had made. In this situation, it not being possible for me to contend, that those for whom I appeared, were not guilty of that part of the transaction; the only point which I could enforce at the trial was, that they were unacquainted with the other part. It is not for me to contend now (against the verdict of the Jury) that they were not also guilty of the other part; though, if I might be permitted to state my own feelings, I cannot but think there was a considerable defect of proof on that part of the case. The only circ.u.mstance that connected the one transaction with the other, independently of their taking place at the same period of time--and we must be aware that history furnishes many examples of conspiracies, having the same object, formed at the same time, yet totally unconnected with each other--the only link that connected the first of these transactions with the last, was the letter of Mr. Cochrane Johnstone, in which he mentions M'Rae as a person, who, for .10,000, was willing to explain the whole of the transaction of the 21st February. Unquestionably that letter was no evidence against Mr.

Holloway, Mr. Sandom, and Mr. Lyte. There was but one other circ.u.mstance appearing on the trial that connected them together; it was, that the chaise which took Mr. De Berenger, went to the same place where the chaise went which carried the three others. But it appeared upon the evidence, with respect to that part of the case, that Mr. De Berenger went to the Marsh-gate at Lambeth, not in consequence of design, but of an intimation which he received from the driver who drove the last stage, that there was no hackney-coach to be procured at the first place where they would stop; in consequence of which, Mr. De Berenger directed the man to drive him to another.

I am not disposed to-day to go into that part of the case, and to argue the matter as I did before the jury. That there was evidence on which the verdict of the jury may be supported, I cannot for a moment dispute; but I am sure your Lordships will excuse me for just begging your attention to that part of the case, because, I think, when compared and considered, together with what Mr. Holloway did when he made the communication to the Stock-Exchange, it does furnish an additional ground, which may fairly be urged in mitigation of punishment.

Let us attend to the circ.u.mstances under which Mr. Holloway made this confession. M'Rae, of whom I know nothing, is absent, and I have no means of tracing who he is; but he, finding there was a strong disposition on the part of the Stock Exchange, upon any terms to obtain evidence of the transaction of this day, hastens to Mr. Cochrane Johnstone, and then this extravagant offer is made by Mr. Johnstone on his behalf, to communicate all the information he is possessed of for the sum of .10,000. This reaches the ears of Mr. Holloway. Mr.

Holloway, knowing he had been guilty of acts on that day, which certainly would subject him, if discovered, to a criminal prosecution, but having reason to believe that M'Rae knew nothing of the transaction in which De Berenger acted, with a view to save the gentlemen of the Stock Exchange from paying money for a communication which would be of no value, came forward and made the confession, which appears upon your lordship's notes. Were it not for that confession voluntarily made by Mr. Holloway, there is no evidence against him, to shew that he was guilty of any part of the charge; nor any evidence against Lyte, to shew that he was guilty; but he was present when Holloway made the confession, and permitted him to make it. Therefore the whole evidence against them is their own confession, made with a view to save the gentlemen of the Stock Exchange a useless loss of money. I think I may be permitted to say, particularly as it regards Mr. Holloway and Mr.

Lyte, that they stand in a situation which at least ent.i.tles them to the consideration of your lordships. I will not presume to say, the confession of Mr. Holloway and Mr. Lyte was made under any promise from the gentlemen of the Stock Exchange that it should not be used against them; but I think I may be permitted to suggest, that could they have supposed, the only evidence to be used against them would be their own confession, they would rather have hesitated about making a confession which alone places them this day before your lordships. It must likewise be taken as part of that confession, that Holloway and Lyte denied any concurrence with the n.o.ble lord and the other defendants; and I think I may press upon your lordships attention, in confirmation of this, what Lord Cochrane has himself stated, that he had no knowledge of them.

My Lords, it is true these persons have been guilty of a great misdemeanor, and it is not for me to say a word in their favour, in the way of palliating the immorality of the act. All I could submit to the jury was, that there was not evidence to connect them, with the other part of transaction; all I can now submit to your Lordships, is that they have done all they could do, after having been led into the commission of so scandalous and mischievous an offence, to save the prosecutors further loss and trouble. I have not troubled the Court with affidavits to character, I am well aware that such a transaction as this must stand by itself, I pursue the same line of conduct which I did at the trial; I propose not to offer any thing in arrest of judgment, I produce no affidavits in mitigation of punishment; but I do submit to your Lordships upon the whole of the case, as it respects these three defendants, that they do stand in a different situation from the other defendants; and though it is not to be forgotten that they were parties in a most scandalous transaction, yet that their ready confession does ent.i.tle them to as much consideration, as your Lordships can give in such a case.

MR. C. F. WILLIAMS.

My Lord, I am also counsel for these three defendants; the grounds of indulgence have been so fully gone over by Mr. Serj. Pell, that I think it unnecessary to make any observations.

MR. DENMAN.

My Lord, I am with the two learned gentlemen who have preceded me; and I would merely observe, that the affidavits which we might have been expected to offer upon this occasion, in support of the line of defence which we pursued, and which the learned serjeant has stated, could not properly be addressed to the court, because they must have gone in contravention to the verdict of the jury. At the same time I may be permitted to say, it is extremely singular, that in the two plans to affect this mischief, in each of which so many persons were concerned, and where so much a.s.siduity has been employed, no one circ.u.mstance of connection between them has been discovered but that which was stated by the learned serjeant. What M'Rae might communicate was no evidence against these defendants; no doubt Mr. Cochrane Johnstone gave his sanction to that communication, by offering to contribute to the reward for which M'Rae stipulated; but Mr. Johnstone's acts are no evidence against these defendants. It is most unfortunate for them, that M'Rae, who appears to have been connected with Mr. Johnstone in one part of the affair, has appeared to be connected with them in the other part. It will perhaps occur to your Lordships to enquire why I state these things, seeing there is an admission of something criminal. I state them, because I think they do afford an argument in mitigation of punishment; because I think they will lead to the conclusion in your Lordships minds, that had these defendants been aware of the whole extent of mischief which was to be carried into effect, they probably would not have joined in it. Your Lordship put it to the jury, at the trial, that it was not necessary all the actors in the drama should know the part a.s.signed to each,--that it was enough they had each contributed to the general object.

_Lord Ellenborough._ That they were parties to the general object, and co-operating to effect it.

_Mr. Denman._ But your Lordship particularly stated, it was not necessary that the jury should arrive at the precise degree of partic.i.p.ation and extent of criminality. I humbly conceive, the extent of criminality, as affecting these defendants, is, in comparison with the others, very small; and I trust your Lordships, considering their degree of guilt, will proportionably moderate the degree of their punishment. In the case of conspiracy, the law itself inflicts a most severe and heavy judgment; and in p.r.o.nouncing that sentence which must come from your Lordship's lips, I have no doubt, the considerations which attach themselves to it, will not be overlooked.

MR. GURNEY.

My Lord; my learned friend Mr. Serjeant Pell has alluded to the different situations of the several defendants who now stand upon the floor for your Lordships Judgment. It is, my Lords, a lamentable spectacle, but it will not, I trust, be an unprofitable lesson to mankind, that conspiracy, like "misery, acquaints a man with strange bedfellows." The conspiracy of the 21st February was, for all the defendants to act in concert, each man to perform his part toward the accomplishment of their common purpose;--one to travel from Dover, others to travel from Northfleet, and others to be on the spot at the Stock Exchange, to avail themselves of the rise in the funds produced by these operations. But the conspiracy on the day of trial, and the conspiracy of this day, is, for each, to be distinct and separate, and, as much as possible, unknown to the others.

I am willing to concede to my learned friends who have last addressed your Lordships, that some of these defendants do stand in a very different situation from the others. Of Holloway and Lyte, it is fairly to be observed, that by their confession they did manifest a degree of contrition; it must, however, be recollected respecting Holloway, that the purpose which he conceived, was a fraud for his own personal advantage: It is in evidence that his fraud took effect; and he has not ventured to state to your Lordships, by affidavit, to what extent that fraud was successful and profitable.