Part 29

_Q._ Did you see him again that day at Mr. Donithorne's, and at what hour in the day?

_A._ I did; I saw him again in the evening.

_Q._ At what time?

_A._ Between nine and ten--I mean between eight and nine.

_Q._ Did he stay any time then?

_A._ I believe he did; we were in the parlour, along with Mr. and Mrs. Donithorne, and he came; and he (Mr. Donithorne) asked him to come in; and he said, he would not come in to disturb good company.

_Q._ Are you sure he was the man?

_A._ I am sure he was the man.

_Q._ How near was he to you?

_A._ We got up, of course, when the gentleman was coming in, and we saw the gentleman in the small parlour.

_Q._ What happened then, when you got up?

_A._ He went to speak with Mr. Donithorne, and they walked backwards into the garden.

_Q._ Did you see them go out of the door that leads into the garden?

_A._ Yes, I saw them go backwards.

_Q._ You did not go to look after what they were doing?

_A._ No.

_Q._ Did you afterwards see them again, after they came from the back part of the house?

_A._ No, I did not.

_Q._ You saw Mr. De Berenger no more?

_A._ No.

_Cross-examined by Mr. Bolland._

_Q._ How long has your husband had the affliction of deafness?

_A._ He has, at times.

_Q._ So we have seen to-day; you were indulging that morning in bed, as well as your husband?

_A._ Yes.

_Q._ And Mrs. Donithorne came to wake you?

_A._ Yes.

_Q._ It was natural she should do it?

_A._ Yes.

_Q._ Mr. Donithorne did not wake you?

_A._ No.

_Q._ But Mrs. Donithorne came and waked you, and wished you to get up, because somebody was coming to see the house?

_A._ Yes.

_Q._ Do you mean to say, that Mr. De Berenger afterwards went through the house, so as to render that necessary.

_A._ He went up into the attics.

_Q._ Did he go into your room?

_A._ He did not.

_Q._ What occasion was there for your getting up to see him measure the garden?

_A._ There was no occasion for that; but we were getting up, and she thought the gentleman might come into our room.

_Q._ Was she in the habit of calling you?

_A._ Sometimes she has done it.

_Q._ Who was with Mr. De Berenger, besides Donithorne.

_A._ I do not remember seeing any other.

_Q._ Who carried the rod with which they measured; was it Mr. De Berenger or Donithorne?

_A._ I cannot say, indeed.

_Q._ You may recollect who held the paper, and put down the measurements; which of the two carried the paper, and which carried the measuring rod?

_A._ I cannot tell which of the two it was, they being at the top of the garden almost.

_Q._ It is only a small garden, we know the situation?

_A._ It is a long garden.

_Q._ Which of them was it?

_A._ I cannot say, indeed, which of them it was.

_Q._ But one of them did?

_A._ Yes.

_Q._ Was there snow on the ground then?

_A._ No, it was a wet morning, I think.

_Q._ Are you sure it was a wet morning?

_A._ I think it was a wet morning, but I did not take particular notice of the day.

_Lord Ellenborough._ It had rained a good deal, had it?

_A._ Yes, it had.

_Q._ There was a good deal of rain last February, was there?

_A._ I think that was a wet morning.

_Mr. Bolland._ Had the effect of the rain been such, as to give them a good view of the surface of the ground, so as to measure?

_A._ Yes, I think it had.

_Q._ The snow was melted?

_A._ I think it was.

_Q._ And you saw them lay the rule regularly, that they could take the measurement properly?

_A._ Yes.

_Lord Ellenborough._ Did your husband fail, when he gave up the hatting business?

_A._ Why, yes.

_Q._ There had been no commission of bankrupt against him?

_A._ No.

_Q._ And he gave up his business in that house, and you have been since living at Mr. Donithorne's house?

_A._ Yes.

_Q._ How long has he been in the bail line?

_A._ In the bail line!

_Q._ How long has he been bail for people?

_A._ That is unknown to me, if he has.

_Q._ You have never known of people coming after him to be bail?

_A._ No, I have not.

_Q._ He has told us he has been bail for two persons; you know nothing of that?

_A._ No.

_Q._ When did he fail?

_A._ On the 17th of February.

_Q._ Has there been an execution in the house you lived in since that?

_A._ No.

_Q._ Is Mr. Donithorne a creditor of your husband's; do you owe him money?

_A._ No.

_Q._ Is he a relation?

_A._ Yes; he is a cousin.

_Lord Ellenborough._ How far is York-street, Westminster, from the Asylum?

_Mr. Park._ I understand it is behind the barracks in Bird-cage Walk.

_Lord Ellenborough._ It is about a mile I should suppose then?

_Mr. Park._ From a mile to a mile and a half.

_Mr. Gurney._ Is Mr. Donithorne here?

_A._ I believe he is.

_Mr. Gurney._ Then I suppose we shall see him.

_Isaac Donithorne, sworn._

_Examined by Mr. Richardson._

_Q._ We understand you live in York-street, Westminster?

_A._ Yes.

_Q._ Do you remember Mr. Tragear coming to your house, after he had given up his house in Queen-street?

_A._ Yes.

_Q._ Do you remember what day it was?

_A._ I believe it was Thursday; I am positive it was.

_Q._ What day of the month?

_A._ The 17th, I think, or the 18th of February.

_Q._ Are you well acquainted with the person of Mr. De Berenger?

_A._ Very well; I have been for some time.

_Q._ You are a cabinet-maker?

_A._ I am.

_Q._ Had Mr. De Berenger furnished you with designs for furniture at any time?

_A._ Yes, he had.

_Q._ Do you or not remember seeing him on the Sunday after that time when Tragear came?

_A._ Yes.

_Q._ That would be the 20th?

_A._ Yes.

_Q._ At what time in the day did you first see him?

_A._ Between nine and ten in the morning.

_Q._ For what purpose did he come?

_A._ To look over the grounds. I was going to make some alterations in my little garden, and also about other work that I had in hand.

_Q._ What other work do you mean?

_A._ Work I had for Miss Johnstone, No. 18, Great Cumberland-street; work I had in hand; I furnished all her house.

_Lord Ellenborough._ Mr. Cochrane Johnstone?

_A._ Yes.

_Mr. Richardson._ You were furnishing Mr. Johnstone's house at that time?

_A._ A house for Miss Johnstone.

_Q._ Did you see him again in the course of that same day?

_A._ Between eight and nine in the evening.

_Q._ Did he call again at your house in York-street?

_A._ Yes.

_Q._ About what time was it?

_A._ It was between eight and nine; I did not take particular notice of the time, not expecting there would be any question about it; we were all sitting in the parlour, and Mr. De Berenger knocked at the door, and I let him in, and he walked in, and while I was handing a chair to him to sit down, he said I will not disturb your good company, and he said he would walk into the back; and he did, and he staid about a quarter of an hour or twenty minutes.

_Q._ Did you walk back together?

_A._ Only into the parlour; in the morning, we were, I dare say, an hour together in the garden.

_Q._ Did you go into the garden in the evening?

_A._ We did not.

_Q._ What was the purpose of his calling in the evening?

_A._ Merely to answer the purpose of the morning, we meant to do something in the garden; he said he would call if he came that way in the evening, to tell me when he would draw a plan for the work I was going to do in the garden; I was going to build a room there.

_Q._ He was to draw a plan?

_A._ Yes.

_Q._ In the evening he called about the same business?

_A._ Yes.

_Q._ Was any further answer to be given to him?

_A._ This was the business; I was going to turn the front part of my house into an inn, and to make the back part of my house into pleasure grounds.

_Q._ And you had consulted him about the mode of doing it?

_A._ Yes, I had; Mr. De Berenger told me he could make out a handsome plan for me.

_Lord Ellenborough._ Did he tell you what you were to pay for it?

_A._ That house was not his, I pay £.60 a year for it.

_Q._ He did not tell you, that from £.200 to £.300 would not be excessive for a good plan?

_A._ Not for that plan.

_Q._ What did you expect to pay for a good plan?

_A._ That depended upon what sort of plan it might be, they might make a good plan worth that.

_Q._ You would not scruple paying that for a good plan?

_A._ I think I should for that for I had not the money to pay it.

_Q._ He put down the measurements in the morning?

_A._ Yes, he paced it over, but he told me he would come again and measure it quite correct.

_Q._ He put down the figures?

_A._ I do not know precisely whether he did or not.

_Q._ He had his pencil?

_A._ Yes, and a ten-foot rod that he carried.

_Q._ Did he bring a ten-foot rod to walk with?

_A._ I have a ten-foot rod myself, as a cabinet maker, and Mr. De Berenger paced it over.

_Q._ What sort of a morning was this?

_A._ A damp cold morning, a kind of misty rain; very cold.

_Mr. Richardson._ He said he would call at a subsequent time?

_A._ Yes, he did; here are all the designs.

_Q._ Those are the designs of furniture?

_A._ Those are the designs of furniture that I made for Miss Johnstone, or the honourable Cochrane Johnstone, for furniture in Great Cumberland Street; I believe I have some notes respecting them.

_Cross-examined by Mr. Adolphus._

_Q._ Mr. De Berenger came to you, as a friend of Mr. Cochrane Johnstone, to give you plans for Mr. Cochrane Johnstone?

_A._ That was the case.

_Q._ He never gave you plans for any body else's furniture?

_A._ Never.

_Q._ You never employed a draftsman of his class to give you plans?

_A._ No, I made up two pieces of furniture from his plans, to go into a library; that was the first thing.

_Q._ He came as a friend of Mr. Cochrane Johnstone's?

_A._ Yes, to look to the furniture.

_Q._ And then, out of friendship to you, knowing you had little alteration to make, he proposed to assist you?

_A._ Yes; I first proposed the business, and Mr. De Berenger approved of it.

_Q._ He was going to make a survey of the inside of your house that morning; was he not?

_A._ He did of that also.

_Q._ Particularly your lodgers bed-room; he was very anxious to see that?

_A._ And all my own.

_Q._ He was very anxious to see your lodgers bed-room?

_A._ Not that particularly.

_Q._ You went and knocked up Mr. Tragear?

_A._ Yes; I went up and desired them to rise, and to clear up their room, for that he was coming there.

_Q._ Did you desire them to rise yourself?

_A._ Yes, there is not a doubt of it, for I went up stairs.

_Lord Ellenborough._ Will you take upon you, upon your oath, to say, that you went into that bed-room out of which they had come?

_A._ Yes, twice over.

_Mr. Adolphus._ What is your christian name?

_A._ Isaac Donithorne.

_Q._ Do you know any thing about the Stock Exchange?

_A._ A little; something about it.

_Q._ Have you ever done business there?

_A._ Never in my life.

_Q._ Have you ever employed an attorney?

_A._ Yes.

_Q._ Who is your attorney?

_A._ That gentleman there.

_Q._ What is his name?

_A._ Mr. Tahourdin.

_Q._ In what particular business is Mr. Tahourdin your attorney?

_A._ By the desire of the honourable Cochrane Johnstone, who thinks himself very ill used by a set of villains.----

_Q._ After all that preamble, as to Mr. Cochrane Johnstone's being ill used by a set of villains, will you answer my question, what Mr. Tahourdin is doing for you?

_A._ Issuing some writs.

_Q._ What have you desired him to do?

_A._ To issue some writs.

_Q._ How many?

_A._ A hundred and thirty-five.

_Lord Ellenborough._ A hundred and thirty-five writs, of what kind?

_Mr. Park._ Qui tam actions, and that was the reason I did not propose calling him.

_Mr. Adolphus._ Are you to pay Mr. Tahourdin the costs of those actions, or Mr. Cochrane Johnstone?

_A._ Mr. Cochrane Johnstone most undoubtedly, I should think.

_Mr. Park._ I really think that ought not to be asked.

_Lord Ellenborough._ If a man at my instance issues a hundred and thirty-five writs, to be sure I must bear him harmless; how long has your neighbour Tragear failed?

_A._ Why he never failed, to my knowledge; he left his shop publicly, and came to my house.

_Q._ He does nothing in the bail way, by way of filling up his time, does he?

_A._ I know nothing about his private concerns.

_Lord Ellenborough._ You take upon yourself to say, that you know he has not failed; is not his wife likely to know, she has told us he did when he came to your house. You may go about your business.

_A Juryman._ Are you a journeyman or a master?

_A._ I am a master in a small way, sometimes I keep three or four men.

_Lord Ellenborough._ Whom else do you call?

_Mr. Park._ No more, my Lord.

_Lord Ellenborough._ Do not you prove where De Berenger dined that day?

_Mr. Park._ No, I have no means of doing that.

_Mr. Gurney._ I beg to call Mr. Murray, to put one question to him, in contradiction to Smith?

_Lord Ellenborough._ If that question occasions a reply that will throw us into the night; if you think this case of alibi requires a serious answer, you will of course give it; but I think you would disparage the Jury by doing so.

_Mr. Gurney._ I will not call him, my Lord.

_Lord Ellenborough._ Do not let me supersede your discretion, if you think there is any use in having your witness.

_Mr. Gurney._ No, my Lord, I am quite content with the case as it stands.

REPLY.

Mr. GURNEY.

May it please your Lordship;

Gentlemen of the Jury,

It is now my duty to make a few observations in reply on this momentous cause; and, I assure you, that I rise to the discharge of that duty with feelings of no ordinary nature. It is a duty in which it is impossible to feel pleasure; for every gentleman must feel degraded in the degradation of a gentleman, and every Englishman must feel mortified in the disgrace of a man whose name is associated with the naval or military glories of his country. But we are here to try these defendants by their actions; and whatever their conduct may have been in other respects, by those actions must they stand or fall. By the actions of these defendants, as respecting the matters charged by this indictment, you are now called upon to pronounce upon all the evidence that you have heard, whether they are innocent or guilty.

Gentlemen, if in the outset of this case I addressed you with confidence, as to the result, I address you now with confidence, increased ten-fold, when I recollect the arguments by which these defendants have been defended; when I recollect the evidence which _has_ been adduced in their defence, and when I recollect too the evidence which has _not_ been adduced in their defence; the first, as it appears to me totally failing, in making out a case of innocence; and the two latter concluding to their guilt.

Gentlemen, as it is the smallest part of the case, I will take up that part upon which you were addressed last this morning, by my learned friend Mr. Serjeant Pell, which has been denominated in this transaction the underplot. My learned friend endeavoured, with great ability and ingenuity, to persuade you, that the transactions which have been brought before you, did not constitute one plot, consisting of two parts; but two separate and distinct plots, two conspiracies totally unconnected with each other. And my learned friend concluded very properly, that if he could convince you of that, he should entitle his own clients to an acquittal on this indictment.

Gentlemen, if there were two conspiracies, then miracles have not ceased; for unless you can believe, that a most extraordinary miracle has occurred, it is quite impossible to conceive that there were two plots. It is not necessary in a conspiracy, that every party should know every other party in the conspiracy; it is not requisite that he should be acquainted with all the dramatis personæ, and the character assigned to each; it is enough if they engage in the general plan to forward the same general end, and each takes the part which is assigned him to the furtherance of that end. Now, gentlemen, look at the whole of the case, and see whether it is possible to believe, that these persons who came in the second post-chaise from Northfleet to London, were not cognizant of part of the plan, at least, if they were not of the whole, and that they were not aiding in the general conspiracy, to give a temporary rise to the funds on the 21st of February. That they afforded very material assistance in the completion of that purpose, is proved to demonstration. Independent of the facts, we have their own testimony against themselves, which is quite conclusive. Ask M'Rae, whether the plot was one or whether it was two? M'Rae was ready to come forward, and to impeach _all_ the parties who were concerned in the conspiracy. Did he not, therefore, know the _whole_? When Mr. Cochrane Johnstone proffered him as a person who should betray the _whole_, and inform against _all_ the parties conspiring. Are we to be told, that Mr. Cochrane Johnstone thought he knew a _part_ only instead of the _whole_? Was Mr. Cochrane Johnstone meditating a second fraud upon the Stock Exchange? Was he endeavouring to get another £.10,000 out of them, by tendering them a witness, under pretence of his disclosing the _whole_, when he had it in his power to disclose no more than they already knew?

Gentlemen, M'Rae has been surrendered by my learned friend Mr. Alley, who never deserts his client if he can render him any service. No advocate is more zealous for his clients; yet my learned friend felt the proof given so irresistible, that he should be disgracing himself, if he stood up to ask you to disbelieve that proof, or even to hesitate about it, and he surrendered his client at once. Mr. M'Rae then stands here confessedly guilty of this conspiracy. Mr. M'Rae, who on the 15th of February had been proposing to Vinn the same plot, which was executed by De Berenger on the 21st. You find his companions in the post chaise were Sandom and Lyte, and their employer, by his own acknowledgment, the defendant Holloway. What can you wish more to prove that they were all engaged in this transaction? Mr. Serjeant Pell says, you must take Holloway's confession altogether; and because he declares, that he was not concerned with the Cochranes and Butt, you are to take that to be the fact.--Gentlemen, I do not assent to that doctrine, that when a defendant makes a confession, you are to take all the circumstances he alleges in his own favor, at the same time that you take those which are against him. Mr. Holloway came to propitiate the Stock Exchange committee; he came to ask them not to prosecute him. He could not have asked for that forbearance, if he had confessed a participation with De Berenger and the Cochranes. The only chance he had, therefore, was to deny his having any part in that plot, which, he knew, they were most anxious to unravel. But taking the whole of the case together, I think that it is impossible for you to entertain the smallest doubt upon this part of the subject.

I come therefore, gentlemen, to the other part of the case, upon which, after the great length of time which you have employed upon this case, and the fatigue you have undergone, I will not trespass upon you long.

Gentlemen, this part of the case branches itself into three or four heads, upon each of which I must make a few observations.

My learned friend, Mr. Serjeant Best, addressed you at considerable length upon the subject of the stock transactions of his three clients, Lord Cochrane, Mr. Cochrane Johnstone, and Mr. Butt; and he argued, that because it appeared not by any accounts which he put in, in addition to mine, but by the accounts which I gave in evidence, that these parties had been large dealers in consols and omnium, and had had large balances previous to the 21st of February; that therefore you were to believe, that they had on that day no possible interest to commit this fraud. That because they had had on a former day a larger balance, they could have no possible inducement to the commission of this crime. Gentlemen, observe the amount of the balance on that day, it was in omnium and consols very nearly a million. Reduced to consols it amounts to £.1,600,000. Then attend to the evidence of Mr. Baily, who tells you that the fluctuation of one-eighth was a gain or loss of two thousand pounds. Though they had been both buying and selling, yet their purchases had been much larger than their sales, and their attempts to purchase larger than their actual purchases. On Saturday the 19th, Mr. Butt had endeavoured to purchase one hundred and fifty thousand, and actually purchased fifty thousand. On this Monday, the 21st, all the three have this immense quantity of stock upon their hands; they have no means of getting rid of it, for Mr. Baily has told you, that but for this fraudulent transaction, it would have been impossible to have got rid of it, but at a great loss. They had been buying as a person must do, to keep up the market, to redeem himself from loss; and on this memorable day, all this stock is sold, it is sold at a profit of upwards of ten thousand pounds; and if it had been sold without a profit of one single farthing, still the getting out without a great loss, was to them very great gain.

Recollect gentlemen, that just one month afterwards came the news of the rupture of the negotiation at Chatillon, when the premium on omnium fell from 28 to 12 per cent.; if that news had come instead of this false news, on the morning of the 21st of February, the loss of these three defendants, would have been upwards of one hundred and sixty thousand pounds. These persons, therefore, were so involved, that ruin stared them in the face, and when they were in this situation, they did as I allege, and as I maintain I have proved by evidence perfectly irresistible, engage in this conspiracy, to give this fraudulent rise to the funds by this false news; and the moment the object had been attained of the rise of the funds, that moment all the stock was sold, and sold to the profit that I have proved. So much for these several stock transactions, which supply the corrupt motive by which these defendants were instigated to the commission of this crime.