The Trial of Charles Random de Berenger, Sir Thomas Cochrane Part 89

Gentlemen, the only part of the evidence which has the least tendency to connect my Lord Cochrane, by means of the notes, with Mr. De Berenger, is the evidence that was given by a person of the name of Lance; there is not one other witness that attempts to state, that a single note traced from the hands of Lord Cochrane, ever was found in the hands of Mr. De Berenger; now, if you will have the goodness to attend to Lance's evidence, you will find that there were for a time put into the hands of Lord Cochrane two .100 notes, which were afterwards found at the Bank, and in exchange for which two hundred one pound notes were given to the person changing them, and that a considerable quant.i.ty of those .1 notes have certainly been proved to be found in the chest of Mr. De Berenger; but permit me to state, that though those two .100 notes, by which one hundred .1 notes were afterwards produced, are for a short s.p.a.ce of time shewn to be in the hands of Lord Cochrane, that the same witness tells you, that those .100 notes were got back from my Lord Cochrane again, before they were exchanged at the Bank; for he tells you, that he carried those two .100 notes to the Bank _for Mr. b.u.t.t_.

Gentlemen, my learned friend, who cross-examined Mr. Lance, certainly could not get from him that he was present at the time when my Lord Cochrane paid those two notes into the hands of Mr. b.u.t.t; but it is perfectly clear, from that which he subsequently stated, that at some period before they found their way into the Bank, and before they can furnish any means of proof against the parties, they must have been returned to b.u.t.t's; these notes might have been in the hands of any one of you, gentlemen; but the question is, on whose account the two hundred .1 notes were received from the Bank, for it is these small notes which can alone connect the party with Mr. De Berenger. Now, I say, Mr.

Lance, in a part of his evidence, stated, that though he was not present at the time Lord Cochrane returned the two .100 notes to b.u.t.t, yet that he afterwards received those notes, not from the hands of Lord Cochrane, but from the hands of Mr. b.u.t.t; for Mr. b.u.t.t he went to the Bank; for Mr. b.u.t.t he got the two hundred .1 notes, and those two hundred .1 notes he delivered back into the hands of Mr. b.u.t.t. Gentlemen, I am sure therefore, that if I have made myself understood upon this part of the case, I have completely released Lord Cochrane from the effect of this evidence, for though the two large notes were once in his hands, these notes were never in the hands of De Berenger. The notes found on him were the small notes given in exchange for them at the Bank, and these were given to Mr. b.u.t.t, and not Lord Cochrane. It is perfectly clear, therefore, that though these had been in the hands of Lord Cochrane, from the money transactions taking place between them every day, it was Mr. b.u.t.t that was the possessor of those notes, at the time the .1 notes were obtained for them; I am satisfied, therefore, you will see that this evidence does not connect Mr. De Berenger with Lord Cochrane.

I am quite confident, therefore, that I am right, when I state to you, that my learned friend's attempt to draw an unfavourable inference from the circ.u.mstance of De Berenger being in possession of notes which once belonged to Lord Cochrane, is completely answered; and then I state again, that the only points which remain for your consideration, with respect to Lord Cochrane, are, first; the large sale of stock on the 21st of February; and, next, De Berenger being at his house on that day; with respect to the last circ.u.mstance, that is proved only by Lord Cochrane's affidavit, and I think I shall shew that Lord Cochrane, in that affidavit, completely explains that circ.u.mstance.

Gentlemen, with respect to the large sale on the 21st of February, I do not think the Committee of the Stock Exchange have conducted themselves quite fairly in a criminal case; because, in a criminal case, it is not fit to take up a piece of evidence just exactly at that point where it will suit the purpose of those who offer it, keeping back other evidence which they know is extremely important, which they must know is calculated to do away the effect of that which they offer. Now, gentlemen, for the purpose of implicating Lord Cochrane, the Stock Exchange have instructed my learned friend, Mr. Gurney, to state, and Mr. Gurney did, in pursuance of his instructions, state most expressly, that Lord Cochrane began his Stock Exchange speculations about one week before the 21st of February; and, till I cross-examined Mr. Fearn, you must necessarily have understood, as well from the statement of counsel, as from the evidence that has been offered, that Lord Cochrane, about six or seven days only antecedent to the 21st of February, had purchased the whole of the .139,000 that was sold out on that day; that his lords.h.i.+p had never speculated in the funds before, and, therefore, that all his purchases must have been made in order that he might have so much stock to sell at this particular time. But, gentlemen, it turns out that Lord Cochrane had been deeply speculating in the Stock Exchange for several months before, and so the inference, that he purchased this stock with a view to the event that happened on the 21st of February, is reb.u.t.ted; that Lord Cochrane did not first begin to buy this .139,000 merely for the purpose of selling on the 21st of February, is most clearly proved by the testimony of Fearn and of Hichens, who say, that so early as the month of November preceding Lord Cochrane had bought very largely, and had sold very largely; and that he continued to buy and to sell, down to the very period of the last sale taking place; it is impossible, therefore, when the evidence is laid before you, that you can collect, merely from the circ.u.mstance of his selling so large a sum as .139,000 on the 21st of February, that he was guilty of a conspiracy to occasion a rise in the funds on that day. The witness did not come prepared to state to you, what had been the extent of the sales made by Lord Cochrane on antecedent days; but when he states that he sold largely, (I think I may venture to say, that he sold nearly as much on previous days as on this occasion); you will find therefore nothing to distinguish the conduct of Lord Cochrane on the 21st of February, from that which had been his conduct on many days precedent.

Gentlemen, I trust therefore, that in a criminal case, you will think that the inference of criminality which is supposed to arise merely from the circ.u.mstance of the sale of this large quant.i.ty of stock, is reb.u.t.ted by the fact I have now brought under your consideration; but you will have the goodness also to bear in mind another circ.u.mstance. I did expect, when I heard the case opened with so much confidence against Lord Cochrane, that you would hear of some particular directions being given to sell on that day; but, gentlemen, how does that fact turn out; no particular directions are given to sell on that day, but Lord Cochrane's general directions, from the first moment when he became a speculator in stock, were, that whenever any event should happen by which the stocks should be raised, one per cent. the broker was not to wait for particular directions, but to sell; and this large sale of .139,000, from whence the inference is drawn, that Lord Cochrane necessarily knew of the conspiracy which had taken place, was made under these general directions. It is also to be observed, that Lord Cochrane was never present in the city a single hour during the 21st; there is no evidence given that he was there; on the contrary, all the witnesses that have been examined, have told you they did not see him there; all the stock was therefore sold on that day, without any interference on his part; and as it appears beyond all question, a very considerable part of the stock of all these gentlemen was sold before any of them came into the city, and without any particular directions on the subject of the sale of it.

Gentlemen, the sale of the stock which Lord Cochrane possessed, considering the circ.u.mstances under which he became possessed of it, and the circ.u.mstances under which it was sold, furnishes, I submit to you, no proof that he was privy to what they have called the hoax. I beg pardon of the n.o.ble and learned judge, for using this term, after the observation that his lords.h.i.+p has made upon it. I did not use it for the purpose of treating with levity the crime contained in the indictment; but it has been so frequently applied to this crime, both before and since the prosecution was inst.i.tuted, that it is difficult in the hurry of speech to avoid using it.

Gentlemen, another circ.u.mstance has transpired, which I think furnishes a strong observation in favour of all my clients; namely, the practice of selling both stock and omnium, which the seller is not at the time of such sale in possession of. If Lord Cochrane had been privy to the fraud, would he have contented himself with merely selling the stock that he had previously purchased. Would you not have found him selling to every buyer that offered (and on the 21st of February there was no scarcity of buyers at the advanced prices) stock and scrip in any quant.i.ty; if he had been privy to the fraud, he must have known that the bubble would soon burst, that the funds would fall back to their former prices, and that by every sale that he so made, he must be a great gainer; yet he is not found selling the value of a s.h.i.+lling in this manner; nothing is sold but what had been previously bought, and that sold under general directions given to the broker previous to the day of sale, and previous to the time when the conspiracy could have been conceived. If his lords.h.i.+p had been one of the conspirators, he must have been found to have made many more thousands of pounds by the speculations of this day, than he either is or can be proved to have made hundreds. Avarice, always insatiable, which had in this case impelled the defendant to hazard every thing that was dear and valuable to him in life, stops short in the hot pursuit of its object, at the very moment when the most abundant means of gratification are brought within its reach. Does not then the inference of innocence, arising from what he did not sell, although he might have sold much, outweigh the inference of guilt, arising from what he actually did sell; what he did on this day, it is not only possible but probable that he might have done, and yet be innocent of the conspiracy with which he is charged; what he did not do, he could not have omitted to do, if he had been guilty.

My learned friend, Mr. Gurney, has told you, that the circ.u.mstance of his selling out as he did, proves his privity to the conspiracy. Men who were unconscious of the risk, says my learned friend, did not sell on the first rise in the market, but held their stock in the expectation of gaining still higher prices; but the defendant, knowing that the falsehood of the news would soon be discovered, and that its effect on the funds must be of very short duration, sells his whole stock on the opening of the market. I should have felt the force of this argument, had you found Lord Cochrane on the Stock Exchange, pressing his brokers to complete their sales; but when you find that his lords.h.i.+p was not present, and gave no directions for immediate sales, but that his stock was sold under orders given before the fraud could have been thought of, I trust that you will find it not worthy of much attention. If, however, you are to decide on the guilt or innocence of Lord Cochrane from the transactions of the 21st of February, you will look at the whole of his conduct, and when pressed to find that the circ.u.mstance of his selling is proof of his guilt, you will say, that the circ.u.mstance of his not selling more than he did, is a still stronger proof of his innocence. My learned friend will have an opportunity in his reply, of accounting why his lords.h.i.+p and his supposed co-conspirators did not sell more; and I think he will find it a task that will transcend even his powers, to account for it in a manner compatible with their guilt.

Gentlemen, the only remaining point relative to Lord Cochrane is this; that on the morning of the 21st of February Mr. De Berenger went to the house of his lords.h.i.+p. Gentlemen, it is material for your consideration how the Stock Exchange got the knowledge of that fact. Gentlemen, but for my Lord Cochrane, the Stock Exchange never would have known of the existence of any such person as De Berenger; but for my Lord Cochrane, it is impossible that the Stock Exchange could have inst.i.tuted this prosecution, because it was by Lord Cochrane's affidavit only that the name of De Berenger was given to them. I am aware my learned friend stated to you, that the Stock Exchange had some reason to suspect that a Mr. De Berenger had been engaged in it before this affidavit was published; but, Gentlemen, my learned friend has offered no proof of the grounds of such suspicion; the only proof that he has offered upon the subject, is the proof which my Lord Cochrane's affidavit furnished him with. Now, Gentlemen, I have a right to say, that the mere circ.u.mstance of Lord Cochrane's introducing the name of Mr. De Berenger for the first time, in that affidavit, is of itself sufficient to repel the inference arising from the circ.u.mstance of De Berenger's going to his house. But, gentlemen, I am sure you will bear in mind the very important evidence that was given by Mr. Wright upon that subject. My learned friend may repeat again the observation with which he introduced this prosecution, that those who are wicked are not always wise, and that it so happens frequently, that men do acts without considering the consequences of those acts, and that it is in consequence of this want of consideration that criminality is often brought home to delinquents; but it appears from Mr. Wright's testimony, that Lord Cochrane was fully aware of the consequence of the affidavit that he was about to publish. Mr. Wright, the printer, who was called for the purpose of shewing that this affidavit had been printed by Lord Cochrane, tells you, that when he received the instructions from Lord Cochrane to print the affidavit, Lord Cochrane said this, _I have no reason to think De Berenger was the man, but if he was, I have given the Stock Exchange a clue to him_; so that you see, at the very moment that his lords.h.i.+p published that affidavit, he was perfectly aware of the consequence of what he was about; and he must know, that if the Stock Exchange could not find out who this man was who came to his house, it would be impossible for them to reach his lords.h.i.+p. He must know that they were likely to remain for ever ignorant who that person was. He comes forward and tells them who that person was, recollecting at the time he makes the disclosure, that if that person be guilty, he would by the act he was about to do deliver him over to their justice. What must those persons think of Lord Cochrane? who after this can consider him as implicated in the guilt of this conspiracy? the guilty men knowingly and advisedly point out to their prosecutors, the only course by which they can be hunted down; such guilty men must be men of too weak understandings to be answerable for their conduct either to G.o.d or their country. In the declaration that Lord Cochrane made to Mr. Wright, he did that justice to Mr. De Berenger which his knowledge of that gentleman compelled him to do; he said he did not think him guilty; but if he was guilty, he was about to give him up to the punishment that he justly merited. Gentlemen, there is more of simplicity, more of fair dealing in this behaviour, than was ever found connected with so much guilt as is imputed by the indictment that you are trying, to this defendant.

Gentlemen, let us look at the affidavit itself; my learned friend indulged himself with making upon it a great number of very harsh observations. It is easy to raise suspicions; but suspicion and conviction are different things. Recollect, that before you can convict Lord Cochrane, you must be convinced that this affidavit is altogether false. Gentlemen, it might possibly be said, that that n.o.ble Lord, not reflecting on the consequences of such an offence as that imputed to him by this indictment, might be engaged in it; but you must impute to Lord Cochrane a much more serious offence, one for which want of consideration will be no excuse, after that affidavit has been laid before you, or it is impossible for you to say that he can be convicted of this conspiracy; for it will not be forgotten by you, that at the close of that affidavit, my Lord Cochrane does, in the most solemn manner protest, that he is altogether innocent of the offence which is imputed to him by the Stock Exchange Committee. Gentlemen, I cannot put that better to you than in the words of the affidavit itself; after stating every thing that had taken place with respect to De Berenger coming to his house, his Lords.h.i.+p says, "Further, I do solemnly depose, that I had no connexion or dealing with any one, save the above mentioned, and that I did not directly or indirectly, by myself, or by any other, take or procure any office or apartment for any broker or other person for the transaction of Stock affairs."

Gentlemen, it is said that this affidavit has only been sworn before a magistrate; a lawyer, like my learned friend, knows that upon an affidavit so sworn a party cannot be indicted for perjury; but my learned friend will have a great difficulty in convincing you, that Lord Cochrane, whose education has been different from that of my learned friend, knew that he was not liable to that punishment. I am persuaded that he conceived himself as completely amenable to the guilt of perjury, as if that oath had been taken in a court of justice. But is the temporal danger that awaits an act of this sort, the only thing that could prevent a person of the character and situation in life of this n.o.ble person, from making such an affidavit. What reason has my learned friend given you to-day? What reason can you collect from the former life of this n.o.ble person, (for he has been before you, and has lived in the view of the public), that can induce you to believe that he is so completely lost to all sense of that which is right and wrong, to all sense of what is due to himself, as to go before a magistrate to make an affidavit, in which he must know he was deposing to that, which at the time he was making the deposition was absolutely false? Gentlemen, I ask you what evidence you have upon which you are to find this n.o.ble person, not only guilty of a foul conspiracy, but also of the still higher crime of wilful and corrupt perjury? Gentlemen, I am quite satisfied, you will not feel that there is any evidence in this cause, which can weigh down the testimony which my learned friend has thought proper to put in. I say the oath of Lord Cochrane makes the evidence offered on the other side kick the beam; that there is nothing to put in compet.i.tion with the affidavit which my learned friend has himself given in evidence.

But, gentlemen, let us look at the narrative given in the affidavit, and see whether there is any thing improbable in it. Lord Cochrane states, that he had gone out on the morning of the 21st, with his uncle, not to go into the city, but to go to a man of the name of King, who was engaged in making for him a lamp, for which he was about to obtain a patent; is that true, or is it false? It is true, according to all the evidence in the cause; there is no doubt that Lord Cochrane did set out with Mr. Cochrane Johnstone, for the purpose of going towards the city.

Did he go into the city? No one witness has shewn that he did. On the contrary, I think it may be taken as admitted, that he never was in the city on that day. Here then this part of the affidavit is most unquestionably confirmed. He states, that having proceeded to the house of this man, who was a.s.sisting him in preparing this lamp, he received a note in which he was desired to come home; then he states, he was informed that the person who brought the note was in the dress of an officer; and Lord Cochrane goes on to state, that imagining it was some officer who had just come from Spain, (and probably you may know, gentlemen, that Lord Cochrane, who is himself serving in the navy, has a very gallant brother at this time serving in the army in Spain, and with respect to whom, I believe I shall shew you in evidence, that he was exceedingly ill, and was considered to be in very great danger), he immediately connected that officer with his brother in Spain, and he proceeded in a hackney coach to his house, hoping for some account of his brother in Spain.

Gentlemen, it appears that the officer turned out to be Mr. De Berenger.

Lord Cochrane then gives you an account of what Mr. De Berenger represented to be his object in coming to his lords.h.i.+p's house; he says that Mr. De Berenger had previously made applications to him to take him out to America, for the purpose of exercising his men in small arms, and that Mr. De Berenger renewed his application that morning to him to take him in the Tonnant, the s.h.i.+p to the command of which his Lords.h.i.+p was then appointed, and in which he was about to sail to America.

Gentlemen, is this true? we have the evidence of Mr. Murray, a gentleman called on the part of the prosecution; we have the evidence of another person, of whom I cannot speak in the same terms as I do of Mr. Murray, for I shall by and by shew you that he is ent.i.tled to no credit, who certainly, as far as he speaks in favour of Lord Cochrane, is ent.i.tled to consideration; but where he speaks against Lord Cochrane, as I shall shew you, he is ent.i.tled to no consideration, for that he has vowed he will bring on the ruin of Lord Cochrane, in consequence of the refusal of a loan of money. We have it in evidence, that Mr. De Berenger did expect to go to America, under the protection of Admiral Cochrane and Lord Cochrane; the narration in the affidavit is thus confirmed by this evidence; the affidavit then goes on to state, that Mr. De Berenger told Lord Cochrane, that he had left the King's Bench, and come to Lord Cochrane for the purpose of going to America. That he, Lord Cochrane, stated to De Berenger, that it was impossible for his lords.h.i.+p to take him, that his ward room was full; and further, that De Berenger being a foreigner, his Lords.h.i.+p could not take him without the consent of His Majesty's Government; that he might go on board s.h.i.+p at Portsmouth; but in the meantime he must get the permission of His Majesty's Government, upon which his lords.h.i.+p says, De Berenger said he would go to the n.o.ble Lord, whom I have the honour to see in court, to get that permission; his affidavit then states, that De Berenger said to his lords.h.i.+p, I must take a great liberty with you, for it is impossible I can go to the first Lord of the Admiralty in the dress in which I now am; upon which he, Lord Cochrane, not suspecting that Mr. De Berenger had been making an improper use of the dress he had on, or his views in wis.h.i.+ng to change it, furnished him with a coat and hat.

Here my learned friend, Mr. Gurney, makes an observation which I am sure he will be exceedingly sorry for having made; because he would not intentionally, in a criminal case, prejudice the case of the defendant by any argument that is not borne out by the facts of the case; he says, Did Lord Cochrane think it a right thing for his lords.h.i.+p to do, to furnish De Berenger with the means of escaping from his creditors?

Gentlemen, there was no such thing thought of at the time, as the escaping from the King's Bench prison; the cloaths were to enable De Berenger to go to the Admiralty, and to Lord Yarmouth; and it was for the purpose of appearing before Lord Yarmouth and Lord Melville, that this change of dress was asked for, and not for the purpose of escaping out of the kingdom, and avoiding his creditors; whether Lord Cochrane was wise or not in acceding to this request, it is not for us to decide to-day; but I am sure you will feel it was straining the English law too much, to say of a good-tempered English sailor, that he is guilty of a conspiracy, because he yields to a request, to which a person more hacknied in the tricks practised on them, would not have acceded. If my learned friend could have shewn you, that all that the affidavit states, respecting De Berenger's going to America, was the invention of Lord Cochrane since the 21st of February, that nothing of the sort had ever been thought of before, such proof would have falsified the affidavit.

But so far from offering any such evidence, all the evidence adduced confirms the statement in the affidavit; and yet my learned friend still ventures to ask you to disbelieve what Lord Cochrane has sworn, although his oath is unopposed by any testimony, and supported by all the testimony given in the cause.

Gentlemen, it is not my business to argue before you, that Mr. De Berenger went that morning to Lord Cochrane, expecting to obtain leave to go to America; it is enough for me that I satisfy you, that he pretended that that was the object of his visit; but why did he go there at all? Why my learned friend, Mr. Gurney, has given you the reason for his going to some person's house before he went to his own. He has told you, that it would have been highly imprudent, if he was Colonel De Bourg, for him to go to his own lodgings; the Stock Exchange would have had no difficulty in finding him out by means of the post-boys, had he driven home. He determined therefore to make a pretence for stopping at some other person's house; and what had pa.s.sed between him and Lord Cochrane, afforded him a pretence for going to his lords.h.i.+p's.

Gentlemen, bear in mind this; you are to decide this cause upon evidence; you have no positive evidence of any thing that pa.s.sed in the house of Lord Cochrane, except that evidence which my learned friend, Mr. Gurney, has given you from Lord Cochrane himself; you have had evidence upon the oath of my Lord Cochrane, that whatever concealed objects this gentleman had, the avowed object in going there, was that which he has stated; and in which, I say again, he is completely confirmed by all the evidence that has been offered in this cause.

Gentlemen, if it was not for this purpose--if this was not the pretence on which Mr. De Berenger went there, he was much more intimate with Mr.

Cochrane Johnstone than he was with Lord Cochrane; why did not he go there; Mr. Cochrane Johnstone lived only in the next street; if he went to the one house or to the other, because of a connection between him and these parties in a conspiracy, why happens it that he did not go to the house of the party with whom he was most intimate.

Gentlemen, there is another circ.u.mstance you will not fail to observe; it appears from this affidavit, and will appear from the testimony of witnesses whom I shall call, that Lord Cochrane was sent for to his house by Mr. De Berenger; now, in my humble judgment, that is an extremely strong circ.u.mstance to shew, that whoever was connected in this scheme, Mr. De Berenger could not have considered Lord Cochrane as privy to it. If Lord Cochrane was engaged in this conspiracy, what object could De Berenger have for sending for him back from the city, about half past ten in the morning; why, if he and De Berenger had been parties to this conspiracy to raise the price of stocks, Mr. De Berenger could not want to see Lord Cochrane; why therefore was his Lords.h.i.+p to be sent for out of the city, at the very time when his presence in the city was essential to the consummation of the fraud. This therefore shews to you, I think most clearly and satisfactorily, that De Berenger had sent for him on the pretence that Lord Cochrane states in his affidavit, and that Lord Cochrane was not informed of what was pa.s.sing in the city, nor was in any wise privy to it.

Gentlemen, I have stated to you, that it appears to me that every part of the affidavit of Lord Cochrane is confirmed by the evidence which has been given by Mr. Murray, and by all the other evidence offered in the cause; that from all of it you may collect, that De Berenger did go there under the pretence stated, and that he did not go there as a place at which he was to terminate a journey which he had undertaken in concert with Lord Cochrane and others, for the purpose of raising the price of the funds. But knowing the evidence I have, I will not leave it upon this evidence, for this is a case too important to the honour and character of Lord Cochrane, for me to leave any thing undone which I think may possibly tend to produce that verdict, which I am sure every one of you will by and by feel rejoiced to give; I shall therefore adduce before you other evidence confirmatory of such parts of Lord Cochrane's affidavit as are capable of confirmation. Gentlemen, it has been said that this affidavit is false in this; that it states, that Mr.

De Berenger when he came to Lord Cochrane's had on a green coat, whereas it is proved by several witnesses that he had on a red one; but let me suppose that their account as to the colour of the coat is true, and that Lord Cochrane's account is incorrect; would such a mistake, for it is impossible that it can be any thing but a mistake, weaken the credit due to Lord Cochrane. Men do not commit crimes, unless impelled to the commission of such by some strong motive; what object could Lord Cochrane possibly have for stating that this gentleman came in one coloured coat rather than another? Gentlemen, I think I can account for the mistake; my Lord Cochrane made this affidavit a great many days, I think some weeks, after the transaction had taken place; Mr. De Berenger belonged to a corps of riflemen in this country, commanded by Lord Yarmouth, and the proper dress of Mr. De Berenger, as a member of that corps, was a green uniform; my Lord Cochrane had often seen Mr. De Berenger in this green uniform. His lords.h.i.+p, when he made his affidavit, recollected the circ.u.mstance of Mr. De Berenger's being dressed in a military uniform, but there being nothing to fix on his lords.h.i.+p's mind the colour of the uniform, the sort of dress in which he had been accustomed to see Mr. De Berenger presented itself to his lords.h.i.+p's mind, as the dress De Berenger wore when his lords.h.i.+p saw him last. Gentlemen, I have now made all the observations that have occurred to me on this affidavit; I cannot, however, take my leave of it, without again intreating you to consider the circ.u.mstances under which it was made; remember Mr. Wright's evidence, and say if any thing can more strongly evince Lord Cochrane's consciousness of his innocence, than the publication of this affidavit. Gentlemen, you have been told, and truly told that Lord Cochrane is a public character. From the high station in which he was born, and the still higher place in the eyes of his countrymen to which his public services have raised him, his lords.h.i.+p may, without indulging any blameable vanity, one day expect to fill one of the proudest situations in the country.

Is a man so circ.u.mstanced likely to commit so sordid a crime as that with which he is charged? No prospect of gain could hold out any temptation to Lord Cochrane to put in hazard what he now possesses.

The public character which you have been reminded he possesses, would of itself repel such a charge as that which is made against him, though it were supported by much stronger evidence than has been offered in support of this indictment.

Gentlemen, I come now to the case of Mr. Cochrane Johnstone; and with respect to him, I find that the charge is attempted to be made out against him upon these grounds; first of all, that he was a very great speculator in the funds. Gentlemen, I charge again upon the Stock Exchange the same unfair mode of proceeding, with respect to Mr.

Cochrane Johnstone, which they pursued in the case of Lord Cochrane: with respect to Mr. Cochrane Johnstone, they take up the case, I think, on the 8th, but my learned friend applied his observations princ.i.p.ally to the 12th of February. Now, gentlemen, so far from that being a fair statement of the transaction, it appears most clearly, that Mr. Cochrane Johnstone had been speculating in the funds, and speculating as desperately from the month of November, as he was in this month of February. But another thing is pressed against Mr. Cochrane Johnstone, the largeness of his balance on the 21st of February, which is stated to be .420,000; now, gentlemen, I am astonished that the Stock Exchange should instruct my learned friend to say any thing to you upon that subject, producing the account which they have produced; if Mr. Cochrane Johnstone had never had so large a balance before, there would have been something in the argument; but cast your eye up that page, and you will find that Mr. Cochrane Johnstone, who is supposed to have been desirous of getting a quant.i.ty of stock into his possession, to sell on the 21st of February, had on the 14th .615,000; so that this gentleman, who is supposed by the prosecutor's case, to have meditated a fraud by the sale of stock on the 21st, is found reducing his balance immediately before that day from .615,000 to .420,000; to contrive and carry into execution such a trick as that which has been practised, must have taken many days. It certainly must have been in contemplation as early as the 14th, how then can the prosecutors account for Mr. Johnstone's conduct in selling between the 14th and 21st, if Mr. Cochrane was one of the persons who had been contriving to put into his possession all the stock that he could purchase, for the purpose of selling it on the 21st; this is so entirely inconsistent with what must have been the view of a man engaged in a transaction of this sort, that a view of this paper is sufficient to show that there could not have been such an intention; look at this paper, and you will see what he was in the habit of selling; look at his daily sales, and you will find that he began selling; on the 9th that he sold .10,000, on the 10th .105,000, on the 11th .35,000, on the 14th .100,000, on the 16th .10,000, on the 17th .19,500, and on the 19th, this gentleman, who is supposed to have meditated such a fraud as this on the Monday following, sells out .18,000. Let any man in his senses, any man not carried away with the feelings which agitate the Stock Exchange, in consequence of their having been outwitted; for these sharps, who are called flats by one of the witnesses, did not like to be taken in by other sharps. Let any dispa.s.sionate man look at this paper, and say whether Mr. Johnstone could have contemplated the rise in the funds that took place on the 21st.

Gentlemen, it is said that he made a very large profit; that will not prove much, because he was making this sort of profit on several occasions before. What was the general habit of his business, as to the Stock Exchange? Why, that he was content with a very small profit, constantly telling his brokers, that whenever they could get a profit they were to sell, and he was acting in the very same way, until the day on which this transaction took place.

Gentlemen, I have also to observe particularly, that though he did go into the city on the Monday morning, he was in the habit of going every morning; he did not get there any earlier on that day than on any previous day, and so far from his being concerned in the sale of this stock, a very considerable quant.i.ty (Hichens speaks to .50,000) had been sold before he or any one of these gentlemen came there; how is it possible therefore to say, from the circ.u.mstance of his being possessed of this stock, and selling it, that he was implicated in this transaction; on the contrary, I ask you, looking at the whole of this evidence, ask yourselves this plain question, whether he was not selling on the 21st upon the same principles as he had been selling to an immense amount on the preceding days on which sales had been had?

Gentlemen, with respect to profit, I believe that will appear somewhat different from what it has been stated, if you cast up the amount of profits. We are sought to be charged with a fraud. Why? because these three gentlemen all together made a sum of .10,000, which, however, these gentlemen of the Stock Exchange have put their hands upon, and n.o.body is likely to get at, as they state it; I believe the whole did not amount to more than .6,000, but the prosecutors state it at .10,000, that is to be divided among the three, another person taking a share too; but if profits have any thing to do with it, you will find the sales made by Mr. Cochrane Johnstone alone on the 17th, produced a profit of above .8,000; how, therefore, can you presume, merely from the circ.u.mstance of the profits made on the 21st, that he was connected with this conspiracy? Gentlemen, he was near the Stock Exchange, and if in the secret, he certainly would have availed himself of the practice to which I have alluded, namely, selling at a favourable moment, stock he was not in the possession of; all the brokers have been examined, and not one of them has been able to tell you of one single s.h.i.+lling stock sold by these gentlemen, or either of them, of which they were not actually in the possession. It is impossible, if he is so rapacious a man as to engage in a speculation to ruin his fortune and his character, to account for his not taking advantage of such a state of things.

Gentlemen, next to the profit made by Mr. Cochrane Johnstone, is his having been engaged to take a house for Mr. Fearn; and here I was led to expect that my learned friend would falsify the statement made upon oath by Mr. Cochrane Johnstone; he was to prove, that what he had sworn to, or offered to swear to, of his not having taken the house was untrue; it is enough for me to say, that that is not proved; it is an unfounded statement of my learned friend, proceeding from misinstructions which have been given to him by his clients; but on the subject of taking this house, my learned friend must have felt the distress of his case when he pressed it upon you.--Why, gentlemen, what are you desired to find? not that these parties were generally engaged in stock-jobbing transactions; not that these parties had conceived an intention of dealing for a continuance in the stocks; but that they had planned a scheme by which, at one stroke, they were to cheat all persons who came to engage with them in the Stock Exchange; the fraud was to be over in a single day; they wanted no office for that; that could be wanted only for the purpose of carrying on that scheme of stock-jobbing, which these persons began in November, and have actually continued long subsequent to the 21st of February; but does it not appear that my learned friend is wrong in his instructions. According to the papers we have seen (most improperly circulated) a house was taken for Mr. Fearn, without his knowing any thing about it; and Mr. Fearn found himself seated in the office, without knowing how he came there.--Does that turn out to be the fact? No; it turns out that Mr. b.u.t.t had an office before, which he did not like; Mr. Cochrane Johnstone took another office for Mr. b.u.t.t; Mr.

Fearn came to look at Mr. b.u.t.t's office, liked it, and it was kept for him. In consequence of this, this office, which you are told was taken by Mr. Cochrane Johnstone for Mr. Fearn, without his knowledge, was taken by Mr. Fearn for himself, because he found the house to be a convenient one; and it was suggested to him by his friends, that such a house would be extremely convenient to them. Upon this, Mr. b.u.t.t agreed to give up one of the rooms he had, and allowed Mr. Fearn to take possession of that room. Gentlemen, there is another thing which proves that the taking of this house had nothing to do with this particular day; you find, that Mr. Fearn not only continued to possess these rooms, sticking up his name there, but that he liked them so well, he has since taken the whole house, and now continues to occupy it.

Gentlemen, what is the next head of evidence pressed against Mr.

Cochrane Johnstone? It is, that Mr. Cochrane Johnstone called, and left a letter on Sat.u.r.day the 26th, at the lodgings of Mr. De Berenger.

Gentlemen, in the first place, I have to observe, that it was but very loosely and unsatisfactorily proved, that Mr. Cochrane Johnstone was at the house of Mr. De Berenger on that day; but I will admit it, for that is the best way, perhaps. I never have denied, that Mr. De Berenger was acquainted with Mr. Cochrane Johnstone; I never denied that they were in the habit of dining together, and if they were, where was the harm of his leaving a note at the house of Mr. De Berenger.

Gentlemen, I did expect, as there has been so much activity (an activity by the bye that has gone beyond the proper line) in seizing the papers of this gentleman, that we should have seen the letter that Mr.

Johnstone left at De Berenger's; but no such letter is produced, and although the prosecutors have got possession of every paper belonging to De Berenger, not a sc.r.a.p of paper has been produced in the handwriting of my clients; all that is proved is, that Mr. Cochrane Johnstone called upon De Berenger, as one acquaintance would call upon another.

Gentlemen, G.o.d forbid, that because he does so, it should be conceived that he is a party with Mr. De Berenger in this scheme, if he has been concerned in it.

Gentlemen, the next attempt is this, and a miserable one it is; all possible means have been had recourse to, for making it out; for not only has Mr. Basil Cochrane's servant been subpoenaed by the Stock Exchange, to prove who are the persons dining at his house, but the females of this family have been subpoenaed to this place, and kept here for the purpose of proving the same facts which might have been admitted at any hour of the day, and not only subpoenaed, but that subpoena sent by a person whose presence was the most insulting of any one who could have been selected in this town, and who could have been selected for no other purpose than that of offering insult to the members of this family.

Gentlemen, the next circ.u.mstance in this case is, that some money was found in the chest of Mr. De Berenger, which certainly had pa.s.sed through the hands of Mr. Cochrane Johnstone. Gentlemen, I think you have a clue already given you, by which you can account how De Berenger became possessed of Mr. Johnstone's money. But I shall offer other evidence on this part of the case; I will shew most satisfactorily how that money came into De Berenger's hands. You have had it proved already, that Mr. De Berenger is an extremely ingenious artist; you have had it proved, that he was engaged by Mr. Cochrane Johnstone, for the purpose of planning a new Ranelagh, to be called Vittoria, near Alsop's Buildings. Now, I will prove to you, by a witness I will call, that part of this money was paid by Mr. Cochrane Johnstone to De Berenger, for the plans he had drawn for Mr. Johnstone of the projected garden; and the remainder was lent to Mr. De Berenger on his note of hand, by Mr.

Johnstone. Fifty pounds was advanced in September last, when the plans of the garden were begun; and .200 more was paid in the month of February, the 25th or 26th of February. Mr. De Berenger, at the time he was paid for his plans, stated that his distresses were such, that though what he had received was all he had a right to ask of Mr.

Cochrane Johnstone, in satisfaction of that which was due to him for what he had done at Vittoria Gardens, yet he hoped Mr. Cochrane Johnstone would advance him .200 more, by way of loan. Mr. Cochrane Johnstone was exceedingly desirous of relieving the distresses of Mr. De Berenger; but he would not do it, unless he found he would be effectually relieved by the proposed loan. I will prove to you, therefore, that he took same days to consider of it; and on being satisfied on that point, he did lend De Berenger another .200; and this money was paid in that manner to Mr. De Berenger and Mr. De Berenger has given his note for it, payable in six months.

Gentlemen, my learned friend told you, that bank-notes were good things to trace crimes; certainly they are. The finding of the notes puts me to give some account of them. I will do that by the evidence I have stated; and I have a foundation laid for the proof that I shall offer, by the evidence produced already in the cause. I have seen the plans; you shall see them; and after you have seen them, if you are called upon by the evidence produced in this cause to convict De Berenger, which I hope you will not be, you will lament that you are bound to convict a man whom you will find to be possessed of so much ingenuity and taste. You will find that the sum paid is but a small remuneration for the attention he had paid, and the skill he had bestowed, in the service of Mr. Cochrane Johnstone; but whether he was well or ill paid is not the question; the payment of the money, I admit, renders some explanation necessary, and I will give it to you.

Gentlemen, I come now to the case of Mr. b.u.t.t; and with respect to him the case is very much like that of Mr. Cochrane Johnstone, therefore I shall have occasion to trouble you with but few observations. He is found to have had a large balance on the 21st of February, but he had as large a one before; he sold on this day, but he had sold a much before.

He made only .1,300 on that day; he had made much more on other days; there is not an atom of evidence connecting him with Mr. De Berenger; but the taking of the office applies to him as well as to Mr. Cochrane Johnstone, and also the circ.u.mstance of some notes being traced into his hands. Here, gentlemen, I have a difficulty with respect to Mr. b.u.t.t, which I cannot explain by evidence so well as I can the transactions of Mr. Cochrane Johnstone; but I am persuaded you will feel that I can, by observation, as completely relieve him from the effect of those notes being in the hands of Mr. De Berenger, as I have Mr. Cochrane Johnstone.

I will shew you, by the testimony I shall call, that this debt discharged to Mr. De Berenger, or the sum advanced by way of loan, was princ.i.p.ally paid in one pound notes; if so, that will account for the whole of these one pound notes; and as to its going through the hands of Mr. b.u.t.t instead of Mr. Cochrane Johnstone, is it any thing wonderful, when you find him acting as a sort of agent for Mr. Cochrane Johnstone, that they should have pa.s.sed through his hands? But it will appear, that all the notes found in the trunk of Mr. De Berenger got into that trunk, either through the loan or payment of Mr. Cochrane Johnstone. One of the witnesses called for the prosecution has proved the payment by Mr.

Cochrane Johnstone of the sum of .200; but whether that relieves him from the whole or not, are you to say a man is guilty of a conspiracy on such a ground as this? I cannot call these persons for each other; being joined in the indictment, I am deprived of that opportunity. I do not find fault with the prosecutors so doing; but you must be content, under these circ.u.mstances, with the best explanation I can offer to you, with respect to that which appears against this gentleman. I shall offer you the best evidence the nature of the case admits; and I cannot do more.

If direct evidence cannot be offered, you will not expect it, as my learned friend says on the part of the prosecution, I say on the part of the defendants, and much more strongly. If you see my clients offer you the best evidence the nature of the case admits of, with that I am sure you will be content.

Gentlemen, with respect to Mr. b.u.t.t, there is not a t.i.ttle of evidence bringing him into connection with Mr. De Berenger; no man has proved that ever they were seen in the same room; no person has ever brought them into connection together; and it is merely because Mr. b.u.t.t is a great purchaser of stock, and some of Mr. b.u.t.t's money is found pa.s.sing through the hands of Mr. Cochrane Johnstone into the hands of Mr. De Berenger, that you are desired to find them all connected together in this conspiracy.

Gentlemen, I have divided these three persons cases; but there is an observation common to all the cases, which I feel it my duty to make to you. My learned friend said, he could not put them in the same room together; but I think if these persons were conspirators, he would have found no difficulty in bringing them nearer together than he has done. I think he might have shewn, that about the Stock Exchange, or at some place or other, they were at some time or other all acting together; we have eight or nine different persons, Mr. de Berenger, Mr. Cochrane Johnstone, Mr. b.u.t.t, Lord Cochrane, Mr. Sandom, Mr. Holloway, Mr. Lyte, Mr. M'Rae, all charged as co-conspirators; did any man ever see all these persons together; between a great number of them there is not the least proof of connection; you are desired to find a conspiracy proceeding upon this supposition, that all these parties were acting in concert; and yet between two of the parties, there is no more connection proved to have existed, than there is between you and me, or you and any one of these parties.

Gentlemen, this observation I should have a right to make on any case of a conspiracy. I should have a right to say, it is too dangerous to say these persons were engaged together in a conspiracy; but, Gentlemen, permit me to call your attention to a particular fact proved in this case which negatives the connection of my clients in this conspiracy;--you have two persons who are stated to have made a confession of their guilt; one of these gentlemen appears to have felt the impropriety of his conduct, and in a moment when he had recollected himself, and recollected the offence of which he had been guilty, had gone with a mind disposed to make the fullest compensation that he could to those whom he had injured, and to state all that he knew of the transaction; he goes and he states, that having heard that a Mr. M'Rae was willing to give up the persons who were parties to this conspiracy, on the payment of a large sum; he considers it improper, that the Stock Exchange should be plundered of this large sum, by the extortion of Mr.

M'Rae; and therefore, to prevent their paying this large sum to Mr.

M'Rae, he (Holloway) goes to the Stock Exchange, and tells them all that Mr. M'Rae could tell them; and what does he say; it would have been enough if he had not said that Mr. Cochrane Johnstone, Lord Cochrane, Mr. b.u.t.t and himself, were connected; but he says, in the most distinct terms, that he knew nothing of Lord Cochrane, Mr. Johnstone, or Mr.

b.u.t.t. The way in which the case is put to you, is, that all these parties were acting altogether; if so, one of the actors must know who were the other persons that were engaged; and Mr. Holloway, who was an actor, declares that he knew nothing of either Mr. Cochrane Johnstone, Mr. b.u.t.t, or Lord Cochrane; but Lyte, who was present when Holloway made this declaration, does not contradict; he acknowledges his own guilt, and asks for mercy, but he does not attempt to inculpate my clients. I ask, are you against evidence; against the evidence offered by the prosecutors, for this evidence forms a part of the prosecutors case, to say that these persons were connected with the conspiracy.

Gentlemen, if Mr. Holloway could, at the time he was disposed to make confession of his own guilt, have gone the length of saying, I can prove that Lord Cochrane is a conspirator, I can prove that Mr. Cochrane Johnstone is a conspirator, he would not have been here to-day to answer for his crime; he would not only have been paid, but most amply rewarded, if he could have given any testimony by which the conviction of my clients could have been obtained.

Gentlemen, there is another circ.u.mstance I must take leave to press upon you. It seems to me that a conspiracy of this sort could never be carried into effect without some broker being concerned in it. If my clients had been concerned, they would certainly have consulted some of the brokers who have been examined. It is impossible that they could have kept the secret from these brokers; and yet I think it is perfectly clear that they knew nothing of it. It is not pretended by the prosecutors that they had, and from the fairness with which they have given their evidence, it is but just to acquit them of any partic.i.p.ation in it.

Gentlemen, I beg to be understood in what I am now about to say, as not intending to impute any thing wrong to Government or to the Stock Exchange; though I think I may venture to say, that what has been done as to the breaking open the trunk, and the searching for these papers, cannot be justified by law; for I know of no law that justifies the Government of the country, or any magistrate whatever, in breaking open trunks and taking away papers on suspicion of a misdemeanor; yet I am not disposed to impute blame to public officers, when impelled by proper and adequate motives, they go a little beyond the strict letter of the law; but where such powers have been exerted to detect guilt, if guilt had existed, it could not have escaped detection. There has been a degree of activity exercised to bring home the guilt to these persons, which I never saw on any former occasions; liberties have been taken which I never saw in a case of misdemeanor before. All De Berenger's papers have been ransacked and taken from him, at a moment when he could have no idea that they would be taken, and therefore could not have destroyed or secreted any, and yet not a single paper is found (but the bank notes), not a single letter; the parties to the conspiracy are never brought together in connection, and it does not appear that there has been any communication by letter. Here seems to be a conspiracy without any possible means of conspiring. I do not see how men are to conspire without communicating with each other, and I am not aware of any other modes of communication than conversation or writing; yet you are desired to find several persons guilty of a conspiracy, without any communication having been proved to have been had between them, and without any writing of any sort having been found.

Gentlemen, there is one other circ.u.mstance to which I would wish to allude; not that it concerns my clients, for I am persuaded his lords.h.i.+p will tell you the evidence given by that extraordinary man, Le Marchant, does not bear upon either of my clients, because though where several engage in a conspiracy, you may offer evidence that will affect any one of them, yet the declarations of one cannot affect another; now Mr. Le Marchant was never in the company of Lord Cochrane, he never heard one word that Lord Cochrane said; all that he speaks of are conversations with Mr. De Berenger, which may be evidence against Mr. De Berenger, but in point of law or common sense are no evidence against Lord Cochrane; but I will dispose of this man for the sake of the country, that he may never be sent out of the country in any office. I will shew you that he is a man utterly unworthy of credit, for I will prove to you by his own letters that he comes forward to-day, because Lord Cochrane has refused to lend him money; gentlemen, I have a letter of his, in which he desires to have an interview with Lord Cochrane; he has admitted his own hand-writing to the letters, which I will by and by put in. Lord Cochrane very properly gives no answer to the first letter desiring an interview; on the 7th of April 1814, the first being on the 6th April; on the very next day, Lord Cochrane not answering him, he writes an impertinent letter to Lord Cochrane, which you shall hear read; but I produce it for the purpose of introducing the letter which he admits Lord Cochrane wrote to him, and his answer, from which I argue Lord Cochrane's innocence, and this man's infamy. If Lord Cochrane had felt himself a guilty man, he would not have denied this man when he suggested that he could be of use to him in this cause, but you will find from Lord Cochrane's letter, he says, "I should have hoped, that 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."

_Mr. Gurney._ My learned friend has not yet proved that letter.