The Trial of Charles Random de Berenger, Sir Thomas Cochrane Part 90

_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, circ.u.mstanced 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 .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 a.s.sured 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 n.o.ble 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 .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 n.o.ble family; and with respect to one of them, he has reflected back on a long and n.o.ble 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 circ.u.mstances, 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 a.s.sailed by accounts of this transaction, and there is no one, however honourable he may be, who can prevent his mind being bia.s.sed by circ.u.mstances 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 circ.u.mstance 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 p.r.o.nounced 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 doc.u.ment 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 circ.u.mstance 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 G.o.d, 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 circ.u.mstance, 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. b.u.t.t; 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-const.i.tuted 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-const.i.tuted 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.

Gentlemen, whatever blame may have attached upon some of the defendants, if they have made these publications, my client, Mr. De Berenger, is not implicated in any such transactions. Those who have published have only followed the example set them by the prosecutors on this occasion.

Gentlemen, there are certain rules of evidence on subjects of this nature, with which I am sure you are in a great degree acquainted, but upon which you will hear more from his Lordship by and by. It is quite clear that no declarations of one party, though he may be indicted with the others, can be evidence against the other defendants, unless they be present at that declaration. My learned friend, the Serjeant, has so fully gone through the general nature of the case, that it would be impertinent in me to do it; but I shall observe such things as occur to me, on the different species of proof on the part of the prosecution, and I think I shall most decidedly convince you, that even as the case stands, if it was not to be met by the evidence by which it will be met, it would be impossible for you to convict any of these parties, for whom my learned friend and myself are counsel.

Gentlemen, I will presently come to the evidence by which Mr. De Berenger is supposed to be traced from Dover to London; but the great point upon which my learned friend relied, as affecting him after he came to London, was the contradictory statement, as it is supposed, of Lord Cochrane in his affidavit. Gentlemen, first, upon the subject of what are called voluntary affidavits. It is extremely absurd in magistrates ever to take them; no man who knows the law, if he knew he was taking a mere voluntary affidavit, would swear the person before him; but as far as the magistrates are concerned, it is impossible from the nature of the thing, that they should know whether they are voluntary affidavits or not, for there is a great part of the business of magistrates which does not depend upon the hearing of parties, and unless they were to read every affidavit through, which would be to impose a great burthen upon them, they must sometimes swear a party to a voluntary affidavit.

But, Gentlemen, let us look to Lord Cochrane's situation in this matter.

I will suppose that Lord Cochrane knew he was not liable to the pains and penalties of perjury by law; but is Lord Cochrane so reduced in the scale of society by any thing that has yet appeared before you, that you will say he has not only joined in committing the fraud in this conspiracy charged, but that he is a person wholly unworthy of credit, and who, though he may not be subjected to the penalties of perjury, is lost to all sense of duty, so that he would, because he could not be prosecuted at law for the perjury, put his name to a direct and absolute falsehood. I believe no man would say of Lord Cochrane, that he had so utterly thrown off all regard to religion, to the sanction of an oath, properly so called, and to the responsibility he stands under in conscience, as that he would go before a magistrate and make an affidavit, because he could not be prosecuted. I think the supposition is so shocking and so degradatory to him as a man, an officer and a christian, that you will not come to that conclusion. That Lord Cochrane is a brave man, that he has served his country well, no man will deny.

Does Mr. Baily then, do the three other brokers, who demurred to the question put to them as to time bargains; do all this ma.s.s of people, const.i.tuting the Stock Exchange, now standing within the sound of my voice, mean to say, that because Lord Cochrane has acted so improperly (for I so consider it) as to enter into a time-bargain, therefore he is not to be believed upon his oath? If so, Gentlemen, the Stock Exchange and its doors must be shut up for ever; and the great men who stalk about as the self-const.i.tuted Committee of the Stock Exchange, must not have any thing to do in future, because time-bargains are their daily bread; they are at that species of traffic daily, conducting themselves in a manner, whether they like it or not, I say, is most highly disgraceful.

Gentlemen, is Lord Cochrane to be believed or not? have you any ground for saying, that this n.o.ble Lord has been guilty, not of perjury in the common sense of the word, but of perjury of a much higher kind, in my view, for which he must be accountable, for which he knows he must be accountable, if he has sworn that which he knows to be false, and which he cannot have done without being one of the most worthless men in the world. Gentlemen, what has he said? and I beg your particular attention to it, because the evidence of the brokers will not tally with the statement at all; he has sworn that he breakfasted with his uncle, Mr.

Cochrane Johnstone, in c.u.mberland place, which is at a considerable distance (whatever my learned friend may suppose about it) from Green-street Grosvenor-square; it is on the other side, I believe, of the Oxford Road, and near the top of it. It is proved that he breakfasted with him, for Crain's evidence is, that when he set down Mr.

De Berenger at the door, the answer was, that he was gone to c.u.mberland Place. What does Lord Cochrane state; that he went with his uncle in a hackney coach, which took him into the city at the hour of ten in the morning. I beg his lordship's particular attention to that part of the affidavit. Now, Gentlemen, when is it that these time-bargains are supposed to have been made, in consequence of news which it is alleged Mr. De Berenger brought. It is sworn that they were made before eleven o'clock in the day. Why, Gentlemen, we are forgetting distances. If Lord Cochrane was set down at Snow-hill at ten in the morning, if he afterwards came back, as he did, to Green-street Grosvenor-square, being sent for by his servant or Mr. De Berenger, he could not be back before half-past ten or nearly eleven, and I defy all mankind to state how he could after that have communicated to the Stock Exchange, the news this gentleman was supposed to be dispersing abroad, so as to affect the price of stocks. The whole of the transaction took place before eleven in the day, and he was not sent for from Snow-hill till after ten. Why, if this gentleman had been a conspirator with Lord Cochrane, when he heard that Lord Cochrane was gone to Snow-hill, he would have gone on to Snow-hill, then they would have been near the purlieus of that place where all this infamy is daily transacting; instead of that Lord Cochrane comes back. It is too ridiculous and absurd, says my learned friend, to suppose that Lord Cochrane should be coming back to see an officer. I hope, gentlemen, that will not appear to you to be absurd under the circ.u.mstances he has sworn to. I can hardly conceive a motive stronger on the mind of a brave man and a good officer for going back, than that stated by him. He was not acquainted with Mr. De Berenger's hand-writing, though Mr. Cochrane Johnstone was. Having a brother in Spain, he expected that he should receive accounts of him from a brother officer; is that an unnatural sensation? I trust it will never be so in the bosom of any one to whom I am addressing myself; it is one of the most natural that can be stated, and under that impression he goes back, and holds the conversation which has been stated.

Gentlemen, it is stated to you by my learned friend, the Serjeant, and he has better means of proving these things than I have, that the grounds upon which this matter rests, as far as Lord Cochrane is concerned, will be fully explained. The gentleman for whom I appear was, at that time, under duress on account of debt; and Mr. Tahourdin, now his attorney, was his security for that debt. He was a distressed man, and was desirous of going out to Sir Alexander Cochrane, who had had conversation with this gentleman, whose bravery and whose character n.o.body will dispute; and it will be proved to you Sir Alexander Cochrane had made application to the n.o.ble lord near his lordship, to enable him to go out to America; but he could not go, because His Majesty's ministers thought (and I dare say most wisely) that it was not fit to give him the rank which he claimed, being a foreigner by birth, though he had been long serving in this country with the approbation of His Majesty's Government. He was a member of the corp of sharp shooters, of which Lord Yarmouth or the Duke of c.u.mberland was the colonel. He was the adjutant of that regiment, and he had that military garb and dress which might have been sworn to by Lord Cochrane in the way my learned friend supposes, or in consequence of the facts which I have to state. I do not know why I am placed here at all, if I am to take for granted facts because witnesses have sworn them; therefore I say, Lord Cochrane might either mistake, upon the grounds upon which the learned Serjeant has stated it; or the fact might be, as my learned friend has stated, that he was not the man. I know that some of the witnesses have sworn that he was the man whom the hackney coachman took to Lord Cochrane's, but whether he had this uniform on which is stated, I have no means of proving from his declaration; but I have Lord Cochrane's affidavit as to his wearing that which was his proper uniform.

Then, gentlemen, upon my Lord Cochrane's affidavit it stands, and I say that at present there is not evidence enough to meet it. We have not often had the experience of that which has been done to-day; I believe not above twice in my professional life have I seen a prosecutor put in an answer in Chancery of the person who was defendant, and then negative that answer; but I say, there is not that negation of Lord Cochrane's story which can set it aside. You are bound to take all that Lord Cochrane swears upon the subject; and he has sworn to you that Mr. De Berenger did not communicate to him any single fact respecting the stocks, but that all his communication was with respect to his then distresses. Now, gentlemen, where is the inconsistency of that which appears upon the evidence before the Court, and that which will be produced. If this gentleman was desirous of going out with Lord Cochrane in the Tonnant, and if he had done that which I am not commending, though I shall presently shew it is not so culpable as it at first appears. He had no right, I acknowledge, to break the rules of the King's Bench, having the benefit of those rules, but where is the great wickedness of it? He gave bail to the marshal to answer the risk; but if he had come out of that place, dressed as you hear, by my Lord Cochrane, he had done so with a view of going immediately off to Portsmouth; and when my Lord Cochrane could not take him, though there was no inconsistency in his coming in that uniform, which was to be useful to him if he got out to America, there was a great deal of difficulty, at twelve or one in the day, in his returning in that garb or dress into the rules of the King's Bench prison, for he had not only to walk from the place whence those rules began to the house of Davidson, but first of all to where the rules began; and therefore, though it might be imprudent in Lord Cochrane, I shall prove that he did lend clothes to Mr. De Berenger, for that he returned in the black clothes to his lodgings, and that he had in a bundle those clothes which he had taken out on his back. There appears to me nothing so absurd in the story as to induce you to say, that Lord Cochrane has written to the public that which was wholly and absolutely false within his own knowledge, in order to deceive the public.

Gentlemen, when this person found that he could neither go with Lord Cochrane, nor in any other capacity, to Sir Alexander Cochrane, who was then out of the kingdom, you will ask me, why did he then escape from the Rules? Gentlemen, I will tell you:--The fact is, though he was only in duress for .350; and although this gentleman who sits near him, who is his attorney, and will be called as a witness in the cause, was the princ.i.p.al creditor, who had been his surety for the Rules, he escaped from the Rules, under the apprehension that he should have detainers against him for four thousand pounds more. He asked this gentleman permission to go out of the Rules. I am not prepared to defend the act; but he was the only person who was beneficially interested in his remaining in the Rules; for he and Mr. Cochrane, in Fleet-street, having given this bail, the marshal of the King's Bench could, of course, come upon them for the amount of that sum; and I will prove to you, that he had the leave of this gentleman to go, and that this gentleman took the debt upon himself. He went to Sunderland, and afterwards to Leith; and he went there to avoid that which he was apprehensive of, namely, detention by his other creditors, to this very large amount.

Gentlemen, when we talk of prejudice upon this subject, this very thing has been attempted to-day to be put upon his lordship; and you, as a matter of prejudice against Mr. De Berenger, namely, that Mr. Tahourdin, who was attorney for Mr. Cochrane Johnstone, and Mr. Cochrane (a relation as it was supposed of this family, or there was no sense in it) were his bail. But, gentlemen, Mr. Broochooft has negatived the fact; he states that he did not even know Mr. Cochrane Johnstone. Mr. Tahourdin was a creditor of Mr. De Berenger to the amount of four thousand pounds, but he had so good an opinion of him that he consented to his liberating himself; and as to the other security, Mr. Cochrane the bookseller, he is no more a relation of the family of Dundonald, than I who do not know the persons of any of them; but he is a friend of Mr. Tahourdin, whose sister is married to Mr. White, Mr. Cochrane's partner; that is the history of the transaction on which it is supposed that Mr. Cochrane Johnstone has been putting in bail, because Mr. Tahourdin was his attorney; but it will appear that bail was put in two years ago, and that Mr. Tahourdin did not become acquainted with Mr. Cochrane Johnstone till long after that time.

Gentlemen, there have been other prejudices attempted here; they are prejudices that I think could never have entered into the mind of any liberal man; they must have entered first into the minds of the Stock Exchange Committee, for no gentleman could think of such a thing; that which I refer to is, that which my learned friend the Serjeant has commented upon, the proof of Mr. De Berenger being a friend of Mr.

Cochrane Johnstone, from the circ.u.mstance of his dining with the family.

Gentlemen, is every one who dines there to be considered as a conspirator? they are not a committee sitting over their bottle and hatching this infamy; but it appears that he dined twice at the house of Mr. Basil Cochrane (who is not implicated in this), not alone, but with Sir Alexander Cochrane, and a great number of ladies and gentlemen; and at another time Mr. De Berenger and Mr. Cochrane Johnstone also dined at Mr. Basil Cochrane's.

Gentlemen, I am told, and I believe, after what I have heard in this cause, for I have heard it from Mr. Murray, that Mr. De Berenger is a man of great abilities; his Society and his company were much courted till his misfortunes put him out of the general run of society; was there ever such a thing attempted till this moment, as that you were from such circ.u.mstance to prove a conspiracy as against these persons?

On what ground can it be said that his connexion with Mr. Cochrane Johnstone is a matter of complaint against him? I have proved what it was; I have proved, out of the mouth of Mr. Murray, and shall prove again if necessary, that the meeting of these gentlemen there was not a meeting of business; was there any thing in the conversation when Mr. De Berenger came in, in the presence of Mr. Harrison, that gives the least suspicion of a connexion with Mr. Cochrane Johnstone? it appears only, that he being an ingenious man, engaged himself in this Ranelagh that was building, from which it was expected (probably it will terminate in nothing) by Mr. Cochrane Johnstone, that he would derive great benefit; this gentleman, being consulted on the plan first proposed, recommended another from which he conceived Mr. Cochrane Johnstone would make a great deal more money; there is nothing in the connexion more than that.

Are you from that circ.u.mstance to infer that this gentleman was guilty of any conspiracy? as to any negociation on this subject, you hear nothing nor see nothing. You do not find him at any one period of time with Mr. Cochrane Johnstone. You hear of his dining twice in company with him at the house of Mr. Basil Cochrane; you do not hear of him at all there, except about this Ranelagh; but you are desired from that to infer criminality.

But gentlemen, this is a most important transaction; my learned friend has told you he will more satisfactorily explain it by the evidence upon the subject; there is no doubt of the gentleman who sits before me being in distress of circ.u.mstances, but at the same time a most ingenious man; and having done various works of art for Mr. Cochrane Johnston, the latter thought himself indebted to him about two hundred pounds, and paid him the money. Gentlemen, all I can say upon this is, that there is no conspiracy amongst us here, for I do a.s.sure you, that until I came into this place, and saw my learned friends, except my learned friend Mr. Topping, with whom I had spoken on the subject, I did not know that the others were concerned for the defendants upon this occasion; but I hear my learned friend state that which I trust he has the means of proving, but which my unfortunate client has not, not only because many of his papers have been immediately taken from him by the messenger, in the manner described, but because he is himself a close prisoner in Newgate, under a warrant of the Alien Office, and therefore has not the same means and opportunity of conferring with his Counsel; for I have never placed myself in that situation, and do not mean hastily to go there, for it is not a very agreeable service, and I would take no man's retainer, if I thought that I must do so; there has not therefore been that communication which we should have had, if our client had been a free man. But I shall prove by some witnesses of my own, that which will give a considerable colour to my case, and shall pray in aid all the evidence given by any other witnesses on this side of the question.

Gentlemen, before I leave this part of the case, I would wish also to remind you that we have had another piece of evidence given against my unfortunate client, by a man of the name of Le Marchant. I will venture to say, and I hope you have observed, that a much more extraordinary witness never did present himself in that box. It does not become me (and I am the last man to do it) to arraign any one act of His Majesty's ministers, but I believe that the exhibition made this day in the presence of some of His Majesty's ministers, will have been sufficient to set aside any intention of sending him out under an appointment, if it ever prevailed in their minds; for I do say, I think he would disgrace any country from which he was sent on any public business whatever; I think he would not be long in any situation, before he disgraced himself as a man, and brought disgrace upon those who employed him. But gentlemen, I do not know whether you observed another thing, which is, that he shot out of court as if he had had a sword stuck into him, and appeared no more; I never saw any thing so marked as his conduct was upon that occasion.

My learned friend has called your attention to his letter, which I never saw till he read it; my client was protesting against his testimony; but I cannot call him as a witness against this man's evidence, which Mr.

Richardson endeavoured by his cross-examination to alter, because it was our duty to endeavour to get some alteration of that evidence, not knowing how he had conducted himself. I do earnestly beg of you to recall to your attention, the answers he gave to my learned friend, the Serjeant; did he not positively say upon that examination, that he was only kept by His Majesty's ministers in this country to give evidence, and that he had not given his evidence at all from a feeling of resentment, because Lord Cochrane had not complied with his request in giving him money. Gentlemen, when this correspondence comes to be read by his lordship's officer, is it possible you can believe one word of that; he in this letter, which is the last my learned friend stated, and the only one on which I will comment, stated that he believed every thing that De Berenger had told him respecting Lord Cochrane, was false.

If it was all false, as it respected Lord Cochrane, it was all false as it respected himself, for this man had no time-bargains as the other gentlemen had, he was to derive no immediate benefit, except as you believe that man. I beg your particular attention to that, that he is the only person who swears to his having a per centage in this matter. I think I am correct in that statement, that Le Marchant is the only person who says De Berenger told him that he was to have a per centage upon the stock. Now gentlemen, this conversation having been on the 14th of February, seven days before this transaction, he makes the observation in this letter, that he verily believes that every thing De Berenger told him respecting Lord Cochrane was false.

If it was all false, it must be false with respect to De Berenger himself, and according to his own statement he must have invented this story, merely to implicate Lord Cochrane in the transaction; it is absurd gentlemen not to speak to you as men of understandings. Do you believe that this letter has any other sense, than give me so much money, or I will do so and so? After threatening him, he says, "As for my part, I now consider all that man told me to be diabolically false,"

and then without even a new paragraph in his letter, "If my conduct meets your approbation;" what conduct meets his approbation, that he would say in all places and at all times that this man's statement was diabolically false, as far as respected Lord Cochrane; "Can I ask a reciprocal favour, as a temporary loan, on security being given;" then he goes on to say, "I am just appointed to a situation of about .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." And then, because Lord Cochrane most wisely refuses to comply with this request, we have this man set up in the box, to tell you this supposed story of De Berenger, which De Berenger has no means of contradicting; but which I say is so incredible, and so contradicted by the letter under his own hand, that I think jurymen, if it stood upon his testimony alone, or even supported by one or two witnesses to other things, would do most unrighteously if they convicted upon such testimony as that fellow has given, for I never saw a man so disgrace himself as he done.

Now gentlemen, with respect to the proof of Mr. De Berenger's hand writing, as to those things which were found in his box. I put Mr.

Lavie's evidence out of the question; at first his lordship put it, that it was slight evidence; but that it was evidence subject to my observations, the thing being found upon him; gentlemen, supposing there was no evidence of his hand-writing, I can only say he must be well clothed in innocence who can escape, if a man is to be convicted, merely because a paper is found upon him; if a man writes to me a paper containing matter of a criminal nature, and I happen not to destroy it, I must immediately be convicted. I do not mean that his Lordship has said so; but if I am to be convicted because a paper is found upon me, then a man may be in danger from every letter he receives from a correspondent; I am sorry to say that I receive a great many letters which I do not answer; but does my possession of the letters give ground for inferring an approval of all contained in those letters. If you were to convict this gentleman on account of any memorandums found in his possession, because they are found there, I do think a great injustice indeed would be worked.

But, gentlemen, Mr. Lavie has proved his hand-writing. I shall call witnesses to contradict Mr. Lavie; but do not misunderstand me, I believe Mr. Lavie to be a very honourable person, and one who would not tell you a falsehood; but I say he has not the means of knowledge. I can only say, gentleman, that a man must be much more attentive to hands-writing than most of the persons of my profession, in which I include Mr. Lavie, if he can swear to a hand-writing, because he has seen that hand-writing once. I have seen my learned friends near me write many times, but I could not swear to their hands-writing; if I saw a very bad hand indeed, I should say it was Mr. Serjeant Best's; but let me caution you; you are trying these defendants for a conspiracy; you are trying them for a crime of the greatest and most enormous magnitude; you are trying them for an offence that will shut these gentlemen, if you find them guilty, out of the pale of all honourable and decent society; and therefore, though this subject is one, which, from the singularity of it, may create a smile, it is a matter which you will not smile upon when you come to p.r.o.nounce your verdict; because upon your verdict must the happiness of these gentlemen depend. Will you, upon the evidence of Mr. Lavie, honourable as may believe him to be, and just as you may believe him to be, say that he has those means of knowledge which he professes to have.

Gentlemen, I am placed in a very awkward situation as to that paper, which my client a.s.sures me he never saw, and I mean to call witnesses to prove, that he is not the writer of it; I do not think it necessary, but I will do it, for it shall not rest upon me that I have not done my duty. But I am placed in an awkward situation as to the hand-writing; I do not complain of it, but the witnesses into whose hands I must put that paper, have never seen it. Mr. Lavie has seen it; he has had an opportunity of conning it over; but I think he might have done better than to have given his own testimony of this Mr. de Berenger's writing.

Mr. de Berenger is not an obscure man in the city of London; he has lived in this country twenty-five years; he tells me there was no man acquainted with his hand-writing, who could be called to prove this to be his hand-writing; and that no witness to speak to that could be found; but Mr. Lavie went to him improperly; for the Stock Exchange had no more right to break in upon Mr. de Berenger, at the Parliament-street coffee-house, than any one of you. I say it was an impertinent intrusion; this gentleman was brought up on a warrant not respecting this affair, but on a warrant from the Secretary of State, whilst he was fatigued and tired, as he stated to the messenger; still most disgracefully the messenger allowed Mr. Lavie and the Stock Exchange Committee to pump him upon this matter. How the hand-writing is attempted to be proved, it does not become me to say further; but I put papers into the hand of Mr. Lavie, the hand-writing of which, if they be of the hand-writing of Mr. De Berenger, I will venture to say that the paper lying before his Lordship is not; because I have eyes as well as Mr. Lavie has; and I think I can speak to any hand-writing as well as he can. I say it is not the same hand-writing as these, if my eyes do not deceive me; and I shall put it into the hands of persons who have known Mr. De. Berenger long, and they shall say whether it be his hand-writing or not. Gentlemen, if it be not his hand-writing, which I must a.s.sume, I say the whole of that Dover case falls to the ground; because the main sheet-anchor of the whole of the Dover case is that paper. Why do I say so? Because all the witnesses who have come from the Ship Inn at Dover, Marsh, Gerely, Edis, (Wright is not here, being ill;) these men one and all, speak to the person called Du Bourg, as being the person who sent this letter, as aid-de-camp to Lord Cathcart; they all say it was this man, as they believe, that wrote that letter, and sent it off to Admiral Foley. I say, gentleman, that story, as applied to Mr. De Berenger, falls to the ground, if that letter was not the hand-writing of Mr. De Berenger; inasmuch as the letter is now supposed to be traced into the hands of Admiral Foley, from the Ship Inn at Dover, by the conveyance of the little boy. If Mr. De Berenger was not the writer of it, then Mr. De Berenger was not the man who was at that inn.

Gentlemen, it was said by Mr. Gurney in his opening, that he should call the landlord and landlady of the house at which Mr. De Berenger lodged, to prove that he did not sleep at home that night; but they have proved no such thing. I expected, from my learned friend's statement of it, and I am sure he expected it, or he would not have so stated it, that they would have proved that. The man says, he does not know who comes in and who goes out, being the clerk of a stockbroker, and being a good deal out; he says, Mr. De Berenger comes in without their interference; he has his own servants; and all he reasons from is the fact, that he did not hear him blow his French horn at eight or nine o'clock on the Monday morning, which I shall prove to you he could not do, for that Mr.

De Berenger went out to Lord Cochrane's at eight o'clock. These people do not swear, that he did not sleep at home; all they say is, that they do not know whether he was at home or not.

Now, Gentlemen, upon the subject upon which I am about to address you, I do not think it absolutely necessary to go into it; and I should not at this hour in the morning call evidence, but in a matter so highly penal as this is, and where I am placed in so delicate a situation, and in which, thank G.o.d, I can very seldom be placed, I do not think it right to act on my own judgment, where my client a.s.sures me that he was not the man, and is an innocent person; and that he is determined (because he knows perfectly well that what he says is the truth) to have his witnesses called; he shall have those witnesses called, for I chuse to have no responsibility cast upon me that does not belong to my situation. Gentlemen, I shall prove to you most completely that which will dispose of the case, if it is believed. I trust I have already shewn, that it is a case depending upon such frail testimony, as it stands, that it is not worthy of any degree of credit. But I am instructed, that I shall be able to call five or six witnesses, who all saw this gentleman in London, at an hour which was impossible, consistently with the case for the prosecution, and who have no interest, and had better means of knowledge than those who have been called before you.

Gentlemen, I do not mean to say those witnesses who have been called before you have been perjured; but I mean to say, they had not the same means of knowledge with my witnesses; and that, except one of them, or two at the utmost, they had not the day light to a.s.sist them in observations they made upon this traveller. Be so good as to recollect the circ.u.mstances under which he was supposed to have come to Dover; he is found knocking at the door of the Ship Inn, about one in the morning; the man belonging to the opposite house, having been carousing there at a most astonishingly late hour for a reputable tradesman, in the town of Dover, the hatter, the cooper, and the landlord, being sitting together, hear a knocking at the door; and they find a man in the pa.s.sage of the house. Whom do they find there? a man dressed in the manner you have heard described; but the person who sees him, and holds the candle in the pa.s.sage, has a very short conversation with him; the whole time he saw him did not exceed five minutes, and in that time he went up to call the landlord; he put the pen, ink and paper, into his room, and then he left him; he did not see him without his cap, and yet he swears he is the man; and he is not singular in that, for there are many others swear to the same.

Gentlemen, it is a prejudice my client has to encounter, that we have been engaged in this case seventeen hours; and that my learned friend, Mr. Gurney, who opened the case, was in the full possession of his powers, and that he has in a measure forestalled your minds by the evidence he has given, and that the evidence given by me has to eradicate the impressions which his statements and his evidence have made. Gentlemen, I put questions to one of the witnesses which his lordship thought were not of any weight, and _per se_ they were not strong; but when we are proving ident.i.ty every little circ.u.mstance goes to the question, aye or no; we had some witnesses swearing to a slouch cap, one which comes over the eyes, and another swearing that it was like the coat, _grey_; another that it was a dark brown. If the _fac simile_ is correct, there are discordances in the evidence which raise a suspicion in my mind, a suspicion not that the witnesses are perjuring themselves, but that they had not sufficient means of knowledge upon the subject; and that you are called upon to convict this gentleman of a base and infamous crime, from which, except from the evidence of Le Marchant, he was to derive no benefit unless the .400 was a _bonus_, and that upon the evidence of witnesses, who, however respectable, had very little means of observation; for it was not day light hardly even when they left Dartford; and the morning we hear was a foggy morning, and therefore, except Shilling's evidence, we have not evidence that this is the man in _day light_; we have no evidence of any persons who saw him in daylight, and identify him as being the person who came from Dover to London; Shilling's evidence I admit, is, as to his seeing him in day light, and his evidence is extremely strong undoubtedly.

Gentlemen, I am quite aware, though I have not practised a great deal in criminal courts, that the evidence of an _alibi_, as we call it, that is evidence to prove that the person was not upon the spot, is always evidence of a very suspicious nature; it is always to be watched therefore; but I am sure that I shall have his lordship's sanction for this; that if the witnesses to be called have all the means of knowledge upon the subject, if the generality of them have no interest at all in the matter of discussion, and if they prove the _alibi_ satisfactorily, there is no evidence more complete than that of _alibi_, and that _alibi_ will produce advantage in favour of the person who sets it up, according to the nature of that case which is made against him; and if it be merely circ.u.mstantial evidence, although that is in some cases much stronger than positive testimony, yet if the evidence against that person is chiefly mere evidence of ident.i.ty of person, I say that the proof of the _alibi_ will receive stronger confirmation, if those witnesses who undertake to identify have not had sufficient means of knowledge upon the subject.

Hear then, Gentlemen, how I shall prove this case. This person, by the consent of his bail, Mr. Tahourdin, as I have told you, was continually soliciting for the situation he was desirous of obtaining, for the purpose of going out to America under Sir Alexander Cochrane; he was therefore continually violating the rules; and in order to do that with safety, he used to go down a pa.s.sage and take water, instead of crossing Westminster Bridge; because he thought that on Westminster Bridge he should be more likely to be met by the officers, and so more likely to get to the ears of the marshal, so as to lose the benefit of the rules; he was well known to the usual watermen plying there; and I have two watermen here, who will prove to you that on that Sunday morning, which was the first Sunday after the frost broke up, so as to open the river Thames, which had been shut a considerable time, that on the first Sunday after, namely, the 20th of February, this gentleman crossed at that ferry to go over to the Westminster side. Gentlemen, I shall prove to you, that in the course of that day he was at Chelsea; he had been known at Chelsea, having lived there for a considerable time before he was in the rules of the Bench. I will prove that he had called at a house which I will not name, because we shall have that from the witnesses from whence the stage coaches go; that the ostler at that house perfectly well knew him, and that he knew his servant; that he told him the coach had gone off at an early hour in the evening, and there was no coach to go for some time; he will tell you, that he knew this gentleman, and is positively sure that he was there. I shall prove that he went to another house in the course of that evening; and I have two or three of the members of that family who saw and conversed with him between eight and nine in the evening of the Sunday, so that by the course of time, it was absolutely impossible that he could have been at Dover by one in the morning, if he had been at this gentleman's house at eight in the evening. I shall prove that after that he went home to his lodgings. I shall prove that he slept in his lodgings; that his bed was in the morning made by his maid servant; that he constantly slept at home, and that he did that night. I have his servants here who will prove these facts. I allow that he went out that morning, and went out in regimentals, which they will describe to you, and went to Lord Cochrane's upon the errand I have described to you.

Now, Gentlemen, in addition to that, there will be the evidence to be given by my learned friend, Mr. Serjeant Best, which I have a right, as far as it applies to Mr. De Berenger, to pray in aid for him. Does it not immediately go to shew, that it is impossible, but that these persons who have been examined for the prosecution, must have been mistaken? I do not ask you to presume that these persons have knowingly said what is not true; but this made a great noise, and persons were sent to see Mr. De Berenger, and from some similarity of person believed him to be the man. I do not indeed believe the account given by one of the witnesses, Mr. St. John; he told a story the most singular, that he being the collector of an Irish charitable society, with no other means of livelihood, found himself at Dover searching for news, by desire of the editor of a newspaper, and he was afterwards on coming up, sent to Newgate to see Mr. De Berenger, who was exposed to the view of every person who chose to look at him. Mr. De Berenger was fixed upon as the man, and you are asked to presume that he fled, because he knew he was the man. Gentlemen, you will take all these circ.u.mstances into your consideration, and they will account for the mistake in the testimony of the witnesses for the prosecution; but St. John tells you, that he found himself by _accident_ at Westminster. I do not call that an accident at all, for it appears that he walked down to Westminster to see his person; he went and took a good view of his person, when he was standing upon the floor of the court of King's Bench, pleading to his indictment, for being in custody he must be brought into court to plead to it; this fellow says, he was not in court, but he put his head within the curtain, where he could see this gentleman, he heard the officer read to him, and he says that he answered something; I do not care whether he heard what pa.s.sed, he saw sufficient to know that he was the person in custody. I cannot, under these circ.u.mstances, believe this fellow when he tells you, that he went by _accident_ down to Westminster, for it appears evidently that he went by _design_. I say there is a readiness and a desire on the part of the Stock Exchange, to follow this up, I think, with an improper spirit.

Gentlemen, we have had this case dressed up to-day; and it has been attempted to induce you to believe, that the transactions of the Stock Exchange were all laudable. Gentlemen, I say they are infamous; but my learned friend would persuade you, that all the infamy rests upon those who deceived these poor creatures. It is very true, as his lordship says, the circulation of a false report is not innocent, for that may operate against you or me going fairly to buy stock; but I think there has been an excess of zeal on this business; some of these witnesses were carried to Mr. Wood's, at Westminster, and they all fixed upon Mr.

De Berenger, not corruptly, but in consequence of being carried there, and his being pointed out as the man by Mr. Lavie and some of his clerks; they come readily enough and fix upon him; the deaf man not so easily, but at last he did it too; and it struck me, the question I put to that deaf man was extremely relevant. I cannot tell by a witness's face whether he is merely an actor or not, and especially when my instructions tell me he is mistaken; I wished therefore to know, whether he was not looking round the court to give it the air of probability, and whether he had been standing behind, so as to see the others point out Mr. De Berenger, whom they all knew, because most of them had seen him since that time; some of them had not I admit; he is a soldierly-looking man, and a man likely from the description to be fixed upon. My learned friend seemed to think that one of the witnesses had not a fair opportunity of seeing his person, in consequence of his holding down his head; the fact was, he was taking notes (for he has taken a very full note); but without meaning to do anything improper, I said, hold up your head, and he did so immediately; his recognizance was to appear here to-day, not fearing to have all enquiry made respecting him and as it appeared to me; he did not on any one occasion attempt to conceal his person from their observation, I do say, gentlemen, that the means of knowledge of these witnesses are so slight, that if I call witnesses to prove, not by vague surmise, never having seen him before, that he was in their society and company that evening so late, as to render it impossible that he should have been at Dover that night. But supposing that the evidence of _alibi_ should not be satisfactory, it then comes back to the other observations made in the prior part of the defence.

Gentlemen, this is the general nature of the defence I have to make to you. You will, I have no doubt, endeavour to free yourselves from all prejudice infused into your minds; and will come to your conclusion with a desire to do justice. And I trust that you will, in the result of this long hearing, be enabled to p.r.o.nounce, that this defendant, for whom I am counsel (not meaning by that to exclude any of the rest, but he is the only one committed to my care) is not guilty of the charge imputed to him.

MR. SERJEANT PELL.