The Trial of Charles Random de Berenger, Sir Thomas Cochrane Part 91

May it please your Lordship,

Gentlemen of the Jury,

My two learned friends, who have preceded me, Mr. Serjeant Best and Mr.

Park, have both stated to you the peculiar difficulties under which they laboured, in consequence of the great fatigue which they had both undergone. I am sure you will agree with me, that that topic, so pressed by them, will come with still greater force from me; for, as the night advances, the fatigue becomes greater, and the mind more exhausted.

Gentlemen, it is under the full persuasion that you and his Lordship are also much oppressed with fatigue, that I can venture to promise you my address will not be very long. But I trust, that considering the point which it will be necessary for me to expatiate upon, you will be ultimately of opinion, that my address, although not long, is still effectual for the interest of my clients.

Gentlemen, I stand in a most peculiar situation, because, upon the notes of the n.o.ble Lord, it is distinctly proved, that two of the persons for whom I am counsel, Mr. Holloway and Mr. Lyte, have admitted themselves to be guilty of that, which no man can for one moment hesitate to say is extremely wrong. Gentlemen, I think it is also sufficiently proved, that Sandom, the third person for whom I am counsel, was in the chaise which was driven from Northfleet to Dartford, and from Dartford to London; and on my part, I should consider it a most inefficient attempt, if I were to attempt, for one moment, to persuade you that Mr. Holloway and Mr.

Lyte, together with Mr. Sandom, have not been most criminally implicated in this part of the transaction; but, gentlemen, although I admit this in the outset, and very sincerely lament, that men who have hitherto maintained a very respectable situation in life, should have been tempted to involve themselves in so disgraceful an affair; yet I think, unless I am mistaken in my notion of law, as applying to that record on which you are to give your judgment, it will be found that they are ent.i.tled to your acquittal.

Gentlemen, I feel myself under a difficulty, also, in another respect. I must differ from all my learned friends who have preceded me in this trial, I mean, my learned friend Mr. Gurney, of counsel for the prosecution; my learned friend Mr. Serjeant Best, as counsel for Mr.

Cochrane Johnstone, Mr. b.u.t.t, and Lord Cochrane; and Mr. Park, as counsel for Mr. De Berenger. I am not here to find fault with the committee of the Stock Exchange for prosecuting this inquiry; whether that committee is composed of honourable men or not, is to me a matter of perfect indifference. If they have been actuated by a sincere desire of bringing to justice persons who have been guilty of criminal conduct, I, for one, am not disposed to complain of them. Gentlemen, I cannot agree with my learned friend Mr. Gurney, or my learned friend Mr.

Serjeant Best, in what, in different parts of their address, they stated to you as being the leading features of this prosecution; for my learned friend Mr. Gurney, in the outset of his address to you, stated, that what he called the Northfleet plot was only a part of the Dover conspiracy--was subsidiary to it. I think his expression was, that they both formed different parts of one entire plot, and that those who were guilty of one must be taken to be guilty of both; although Mr. Holloway, in his confession, had acquitted Lord Cochrane and Mr. Cochrane Johnstone, of having any part or share in the Northfleet conspiracy.

Now, gentlemen, I will state to you in the outset, that I mean to consider the case in a different point of view. I have not the slightest doubt on earth, that what was done by Sandom, Lyte, and M'Rae, when they left Northfleet on the morning of the 21st of February, was altogether unconnected, and was utterly unknown to, that person, whoever he was, who came from Dover, and that he had no sort of connection with it. Gentlemen, if I am right in establishing this point; if you shall ultimately be satisfied that Mr. Holloway, Mr. Sandom, and Mr. Lyte, who I admit were concerned in that part of the business, were altogether unconnected with the person who came from Dover, and who has been stated to-day to be involved with Lord Cochrane and Mr. Cochrane Johnstone, I apprehend that the three defendants for whom I appear cannot be found guilty. That my learned friend Mr. Gurney considers the case in this point of view is beyond all question, for he opened it to you as part of this case, that what he called the Northfleet conspiracy, was a part of the Dover plot, and was in furtherance of it; and he not only has so stated it in his address, but, as I read the record, it is so stated upon the record; for, in the very first count of the indictment you are now impanelled to try, it is set forth, that Sandom, M'Rae and Lyte took the chaise from Northfleet, and so pa.s.sed on to London, in furtherance of that plot which was originated at Dover. Gentlemen, I submit to you, therefore, on behalf of these gentlemen for whom I appear, that their guilt or innocence with respect to this particular trial will depend upon this circ.u.mstance;--did they form, or did they not form, parts and members of that single plot in which it is supposed the three or four other gentlemen were concerned?

Gentlemen, I certainly have not the good fortune to appear for men of the high rank of those on whose behalf my learned friends Mr. Serjeant Best and Mr. Park have addressed you. I can introduce no such eloquent topics as those which my learned friend Mr. Serjeant Best has touched upon. I cannot ill.u.s.trate the character or the situations of life of the gentlemen for whom I appear, with the terms in which Mr. Park has spoken of his client De Berenger. I know of no claims to honour from any ancestry to which they can justly ent.i.tle themselves; they are men in a respectable, but in a humble line of life, compared with the other defendants upon the record; but I know, that it is not upon that account that you will be less disposed to give a ready and a willing ear to any topics that may be urged in favour of their legal innocence.

Gentlemen, as I followed the evidence, there was but one point of coincidence, in which these persons who came from Dartford to London, could be at all connected with the person who came from Dover, and it was in the very slight circ.u.mstance of the chaises driving to the same place; and my learned friend, Mr. Gurney, in furtherance of that which he submitted to you as against Holloway, Sandom and Lyte, as an ingredient, and a necessary ingredient, in their conviction, stated to you in the opening, that he should prove they went to the same place. I could not but be struck with that circ.u.mstance, because I knew it was one from which a connexion might fairly be felt; I was therefore anxious to watch the evidence which applied to that part of the case, and so far from finding that the person who came from Dover, under the name of Du Bourg, went to the Marsh Gate by design, I find that he went there altogether by accident; for by the evidence of Shilling, the person who drove him, if I do not mistake it altogether, he first proposed to drive him to the Bricklayers Arms in the Kent Road, and when he got there he found there was no hackney-coach, and then to use the very expression of the witness, "I told him there was a stand at the Marsh Gate, and if he liked to go there n.o.body would observe him;" so that it is quite obvious, that the supposed Colonel Du Bourg went to the Marsh Gate, in consequence of having been driven by the suggestion of Shilling. I admit that Sandom, Lyte and M'Rae went there by their own direction; but it is equally clear that Du Bourg went there in consequence of there being no hackney-coach at the Bricklayers Arms, and in consequence also of Shilling advising him to go there for the purpose of obtaining one.

The only circ.u.mstance therefore in the cause, which shews a coincidence of plot between the one at Northfleet and the one at Dover, is this circ.u.mstance respecting the carriages driving to the Marsh Gate; and it will appear upon his Lordship's notes, as with reference to Du Bourg, the going of Du Bourg to the Marsh Gate at Lambeth was purely accidental.

Gentlemen, my learned friend, Mr. Gurney, was so aware of the necessity of proving a connexion between these parties, that he stated another circ.u.mstance; and I think, in the course of his address, those were the only two which he adduced, for the purpose of shewing that there was any fair probability that could lead the Court to believe that the person a.s.suming the name of Du Bourg, and Holloway, Sandom, M'Rae and Lyte, had concurred in any part of this most scandalous transaction. My learned friend stated, that he should shew an intimacy between Mr. Sandom and De Berenger, when both of them were prisoners within the Fleet prison, and that they became acquainted there.

_Mr. Gurney._ My learned friend has misunderstood me, I said they were prisoners at the same time; that was the extent of my statement.

_Mr. Serjeant Pell._ I am very much obliged to my learned friend; I am by no means disposed to mis-state him; I find he did not state it quite so strongly as I had supposed, but the inference he meant to raise in your minds, was, unquestionably, that both being prisoners at the same time within the walls of the same gaol, it was fair to conclude, considering the other parts of the case, that an intimacy had existed between them. Now let us see how that part of my learned friend's statement is made out.--Mr. De Berenger was unfortunately a prisoner within the Rules of the King's Bench Prison in the month of February last; he had been so for some time. I think it does not exactly appear, with respect to Mr. Sandom, according to the evidence of Mr. Broochooft, the officer, who was called for that purpose, when or for how long Mr.

Sandom first went there, or how long he continued there, but far from Sandom's being a prisoner in that gaol during the time when Mr. De Berenger was confined there, my Lord will find upon his notes, as given by a person of the name of Foxall, that Sandom had lived at Northfleet for nine months before he sent for the chaise on the 21st of February.

You observe therefore, gentlemen, that there is not the slightest reason to believe, as far as the evidence extends, that either Mr. Sandom, Mr.

Holloway, or Mr. Lyte, had any knowledge or acquaintance with the other defendants.

But, Gentlemen, I will mention another circ.u.mstance, which puts that out of all doubt:--I allude to the confession of Mr. Holloway, a confession made in the presence of Mr. Lyte, and with his concurrence. He admitted that he had used means for the purpose of inducing a persuasion that a revolution had taken place in France, which unquestionably at that time was not true. How stands the circ.u.mstance? There was a person of the name of M'Rae, who was spoken to by Vinn, the first witness called by Mr. Gurney to this part of the transaction. Vinn told a most extraordinary story, and I will venture to say, that with respect to Mr.

Vinn, if the case of all the defendants had stood upon the testimony of such a man as that, no human being, who had been accustomed to watch the manners and the terms which witnesses use in courts of justice, could have believed him for a moment. His story was this.--That on the 15th of February, M'Rae met him at the Carolina coffee house, and he proposed to him to frame a conspiracy for the purpose of raising the funds; and Vinn asked him if there was any moral turpitude in the transaction. No human being could doubt for a moment, that such a transaction would be deep in moral turpitude. He says, that he told him he would as soon engage in a highway robbery, as in such a transaction; and then immediately he told him, that though he would not himself, he could find somebody else who would engage in that dirty office. Can any human being believe such a story as this? What pa.s.sed between him and M'Rae upon that occasion, I am unacquainted with; but I know enough of your sober judgment, to be sure of this, that no conversation which Vinn states to have taken place between M'Rae and him, when Holloway, Sandom and Lyte, were not present, will be by you permitted to affect their interests.

Now, gentlemen, the next stage in this transaction, in which Mr. M'Rae appears, is, I think, a very singular one; he appears in a letter, I think, from Mr. Cochrane Johnstone, to be the person proposed, who, for 10,000 would make known the whole of this affair. It is a very singular part of this most curious story. This letter is sent to the Stock Exchange; M'Rae proposes, that he shall be the person who is to detect the whole of this scandalous transaction, and he proposes to himself the great reward of 10,000. Only observe, what Mr. Bailey has stated to you took place on Holloway's being acquainted with this circ.u.mstance.

Holloway, knowing that M'Rae had been concerned in this, which I shall term a second plot;--knowing that M'Rae could not communicate any thing, at least as far as Holloway had reason to believe, that could at all affect that which was the greater object of the Committee of the Stock Exchange, namely, the conviction of Lord Cochrane, Mr. Cochrane Johnstone, Mr. b.u.t.t, and Mr. De Berenger, for that is the end and aim of the present prosecution; and as to the clients for whom I appear, Mr.

Holloway, Mr. Lyte, and Mr. Sandom, I firmly believe, if the Stock Exchange had not been of opinion they would have derived some benefit from the conviction of my clients, they would no more have been put forward on the present occasion, than I or any of my learned friends should have been. No, gentlemen, the other defendants are the game the prosecutors are attempting to catch, and it is only for the purpose, in some shape or other, of confusing and confounding two separate and distinct parts, with a hope that in some degree the transaction of Holloway, Sandom, Lyte and M'Rae, in reference to the journey from Northfleet, on the 21st of February, may be connected in your minds with the other defendants, that they are introduced upon the present record.

Gentlemen, do me the favour to recollect what Mr. Baily has stated to-day. It was this;--Mr. Holloway, finding there had been some proposition on the part of M'Rae, to make known all that he was acquainted with in the transaction, and that M'Rae had demanded the sum of .10,000, before he would be induced to relate that which he knew, Mr. Holloway applied to the Committee of the Stock Exchange, and stated this to them, in the presence of Mr. Lyte;--"I admit that we were concerned in that affair when the chaise went from Northfleet to Dartford; I admit we were concerned with those persons when they came through London (and it would be vain and most impertinent if I were to take up your time to deny it), but I deny that we knew any thing of the other parts of the business; we are altogether ignorant of it." Now, gentlemen, is Mr. Holloway to be believed in any part of that which he said? I take it my learned friend will contend, that he is to be believed in all that made against himself, and all that made against Lyte, who was present; but is he not to be believed in the other part of his story? Will my learned friend contend, that he can take the one part, and reject the other? I am satisfied he will not. If you take the whole, then it appears, that Holloway and Lyte admitted that Sandom was privy to their plan, but that they were altogether unconnected and unacquainted with the business which took place at Dover, and had no more to do with Mr. Cochrane Johnstone, Mr. b.u.t.t, Lord Cochrane, or Mr.

De Berenger, than any of you whom I have the honour of addressing.

Gentlemen, I should have supposed, in a prosecution of this kind, that if there had been any connection between the two plots, it would have been traced in some way or other; you observe the minute points which have been made in every other part of the prosecution. There has been labour unexampled; witnesses brought from the most distant parts of the kingdom; no expence spared; every thing done that could be done to make good the charge against four of the defendants upon the record. Is it not a most extraordinary thing, if Holloway, Lyte and Sandom, were at all connected with Lord Cochrane, Mr. Cochrane Johnstone, or the two other gentlemen, that no trace can be found, no clue can be discovered, that can connect the one with the other. Under circ.u.mstances so singular as these, there being not only no evidence of any connexion, but there being an express contradiction on the part of Holloway and Lyte, and the only connecting circ.u.mstance being explained away, I mean as to both the chaises driving to the Marsh Gate, I think you will be of opinion with me, that the two plots are altogether distinct from each other, and that my clients, although morally guilty, must be acquitted upon the present charge.

Gentlemen, I cannot but feel, that a kind of prejudice against my clients may have arisen in your minds; I am not only surprised at it, but I should have been surprised if it had not found its way there. Here is a plot conducted in the most artful and most scandalous manner;--persons of the highest authority imposed upon, dresses bought, and the whole drama got up with the greatest skill. G.o.d forbid, that I should for one moment insinuate that it was accomplished by any of the other defendants upon the record. I am bound to believe, from the character of all these gentlemen, that they are not guilty; but however this may be, still we get back to that which forms the main feature of my defence for these three gentlemen. Are they, or are they not privy to this scheme? Gentlemen, I was observing to you, that some prejudice must necessarily arise in your minds; it is my case that there were two separate plots; they are, as far as the evidence extends, two different transactions on the same day; a prejudice, however, must arise in your minds, because when you find both these transactions point to producing the same effect, you would naturally be disposed to believe, that all the persons who were concerned in both, were equally acquainted with both. You well remember the strong disposition there was at that time, for every person, those at least who were disposed to do unjust and unfair things, to invent such reports as should enable them to sell their stock at an unreal price; and I submit to you, that supposing Holloway, Sandom and Lyte, had intended to do so, there is nothing very singular in their doing it on the day when the other transaction took place. I am fortified in the opinion, that the one plot is not connected with the other, because I find another part of the evidence which disconnects them altogether, and it is this;--from the evidence of the broker who was called to prove the sale of stock, or the directions to sell stock, on the 21st of February, (a person of the name of Pilliner) it turns out that Holloway did not give him any directions to sell his stock till the middle of the day. Now the middle of the day was the time when the chaise drove through the City of London. If Holloway had been connected with those who were engaged in the first plan, I think you will be of opinion, that he would have taken advantage of the most beneficial state of the market, and sold his stock as early as when he found that conspiracy had produced its intended effect upon the funds, so that, in addition to other circ.u.mstances, this also shews that Holloway had no connexion with the other transaction.

Gentlemen, I cannot but be struck at the singularity of Mr. M'Rae's withdrawing from the field of battle. M'Rae certainly has performed a very singular part upon this occasion; he proposed to sell himself for .10,000; he would have had the Stock Exchange to believe, that he had been let into the secrets of my Lord Cochrane, Mr. Cochrane Johnstone, Mr. b.u.t.t, and Mr. De Berenger;--the first object he had in view, was to persuade the Stock Exchange that he knew the whole of their concern in the transaction. A pleasant sort of a gentleman, to ask the sum of .10,000, to induce him to tell all that he knew, when no human being can doubt that all M'Rae knew was, that which has been proved by the witnesses, as to Sandom, Lyte and Holloway, namely; that M'Rae was in a chaise which pa.s.sed through the City of London, coming from Northfleet.

This man, who has the audacity to propose the receiving .10,000, turns out to be a miserable lodger in Fetter-lane, who after he had carried into execution the whole of his part of the conspiracy was rewarded--but how? was he rewarded as he would have been by such wealthy persons as the gentlemen whose names stand upon this record? If they had engaged M'Rae in this scandalous affair, do you believe they would have left him on the Monday morning, with nothing but a .10 note in his pocket? It appears, by the woman with whom he lodged, that he was before in a state of abject poverty, and that afterwards he was seen with a .10 note, and that he bought a new hat and a new coat--and this is the man who proposes to receive .10,000 from the Stock Exchange to tell all he knew. Gentlemen, I think I am not very much deceived myself, if I say, that you will be of opinion, that a man who was in the situation of M'Rae, was not very likely to have known of transactions which would have involved the four first defendants upon the record, in such a serious prosecution as that under which they now labour; and it is not the least singular part of his conduct, that he makes no defence to-day.

Now, gentlemen, you observe the manner in which (subject to my Lord's correction) I put the defence of the three defendants for whom I appear.

I have stated to you, that Holloway and Lyte have admitted themselves guilty of most immoral conduct, for I never can believe that such transactions as these, let them be conducted by whom they may, are not immoral in the highest degree. Holloway, at all events, has since done all he can to make amends; he has confessed his guilt; he has come forward with Lyte, knowing and feeling that they had done wrong, with a view to protect the Stock Exchange against giving that monstrous sum for an imperfect discovery. Had Holloway or Lyte been concerned with any of the other defendants on the record, I submit there is the strongest reason to believe, that when he confessed his own guilt, he would not have been backward in speaking of theirs. He was not aware of the effect I am giving to his defence when he made it; and if he has done no more than that which he has stated, I submit to you, under his Lordship's correction, that you cannot find him guilty; and I submit to you, upon the reasoning with which I commenced my address to you, that whatever Sandom, Holloway and Lyte did, is not at all connected with what Du Bourg, or the person so calling himself, did; that what they did is not connected with what the other three defendants on the record are supposed to have done; that there is not only no connexion proved between the two, but as far as the evidence extends that connexion is negatived; and then I submit to you, if you are of that opinion, these persons must be acquitted; because, as I apprehend, two distinct conspiracies included in one count, both being different offences, cannot be permitted to be proved in a court of justice. Crimes must be kept separate; persons must know what the charge is, on which they are called upon to defend themselves, and miserable would be the situation of persons charged with the commission of crimes, if one crime was connected with another totally distinct and separate from it, and both were brought under one and the same charge, to unite in the same defence.

Gentlemen, I have stated to you, that the gentlemen for whom I appear are in a very humble situation in life. Mr. Holloway is a wine merchant, Mr. Lyte was formerly an officer in a militia regiment, Mr. Sandom is a private gentleman of small fortune;--they are none of them, by their situation in life, apparently likely to be connected with any of the other defendants upon the record. What is there that should lead you to believe they are so? Mr. Holloway and Mr. Lyte stand under a sufficient load of guilt already; they have admitted themselves guilty of what they did on that day. Will you, therefore, because they admitted themselves guilty of one part of the day's infamy, put upon them the infamy of the whole? Will you do this, because the two plots happen to take place on the same day? Can you not, in your recollection, find, in former times, the same sort of coincidence? Do we not know that such things have happened; that plots of a similar description, carried on by different parties, but having the same end, have taken place on the same day?

Have there not been much more curious coincidences than chaises driving to the same point of destination, and the persons in the carriages leaving them there? Have juries ever been satisfied that such coincidences should lead to proving a connection with plots in other respects dissimilar?

Gentlemen, it is upon these grounds, therefore, I submit to you, these three defendants are not guilty of the offence charged upon this record.

I shall trouble you with no witnesses;--there is nothing for me to repel. If I am right in my notion of the law;--if I am right in the persuasion that you can see nothing in the evidence connecting the two plots together;--and if my opinion of the law is sanctioned by my Lord, when he shall address himself to you, there is nothing I have to answer for. It is out of my power to prove, by any evidence, that these three persons were not connected with any of the other defendants upon the record; such a negative as that I can never establish, and therefore I can have no proofs.

Gentlemen, such is the situation in which the three gentlemen for whom I appear stand. I have expressed my sentiments upon the subject as shortly as I could. It is undoubtedly a great misfortune to my learned friends, as well as myself, that we should have been called upon to make our defences, when both you and we are so much exhausted.

There is but one other circ.u.mstance for me to mention, it is but a slight one;--the person who came up from Dover appears to have paid all his post-chaise drivers in foreign coin; there is no pretence for saying that any thing was paid by my clients but in Bank of England notes; there is nothing in that respect, therefore, connecting these two parties together; and if they are not connected together, I trust you will find Mr. Holloway, Mr. Sandom, and Mr. Lyte, not guilty of this charge.

_Lord Ellenborough._ Gentlemen of the Jury; It appears to me this would be the most convenient time for dividing the cause, as the evidence will occupy considerable time, probably. I cannot expect your attendance before ten o'clock.

_It being now three o'clock on Thursday morning, the Court adjourned to ten o'clock._

Court of King's Bench, Guildhall.

_Thursday, 9 June 1814._

The Court met, pursuant to Adjournment.

EVIDENCE FOR THE DEFENDANTS.

_Mr. Brougham:_--We will first read the letters which were proved yesterday?

_Lord Ellenborough:_--These are read to contradict Le Marchant?

_Mr. Brougham:_--Yes, they are, my Lord; he proved the handwriting himself.

[_The following Letters were read:_]

"Glo'ster Hotel, Piccadilly, 6th April 1814.

"My Lord,

"Although I have not the honour of your acquaintance, I beg leave to address you, to solicit an interview with your lordship, for the purpose of explaining a conversation I had with Mr. De Berenger, a few days prior to the hoax of the 21st February last, and which must be interesting to you. If your lordship will condescend to appoint an hour, I will not fail attending punctually at your house, or elsewhere.

I have the honour to be, my Lord, your Lordship's most obedient humble servant, _Js Le Marchant_."

Rt. Hon. Lord Cochrane, &c. &c. &c.

"Glo'ster Hotel, Piccadilly, London, 7th April 1814.