Chapter 17

_Examined by Mr. Gurney._

_Q._ Are you clerk to Prescott & Company?

_A._ I am.

_Q._ Look at that check, did you pay that?

_A._ I did.

_Q._ On what day?

_A._ The date of it the 26th of February, I think.

_Mr. Park._ That is an entry in your own hand-writing.

_A._ It is.

_Mr. Gurney._ Did you pay a 50_l._ note?

_A._ Yes.

_Q._ What number?

_A._ No. 13,396.

_Q._ Did you pay also a forty pound note?

_A._ Yes, No. 6,268.

_Q._ Look at that, is that the £.40. note?

_A._ Yes, that is the note.

_Mr. Gurney._ Mr. Miller, will you produce the £.50. note? [_Mr. Miller produced it, and it was shewn to the Witness._]

_A._ This is the note.

_Mr. John Seeks sworn;_

_Examined by Mr. Gurney._

_Q._ Look at that cancelled bank note for £.50. did you receive that bank note in payment from any person?

_A._ I gave change for it.

_Q._ On what day?

_A._ I cannot exactly recollect.

_Q._ About when; have you any minute on the back of it?

_A._ Here are some letters here that I know it by.

_Q._ To whom did you give change for it?

_A._ Mr. De Berenger's servant, Smith.

_Q._ The day you cannot exactly fix?

_A._ I cannot.

_Mr. Serjeant Best._ I submit to your Lordship, that is no evidence, until they call Smith.

_Mr. Gurney._ On referring to Mr. De Berenger's memorandum book, I find "W. S. £.50." which I consider as connecting itself with this.

_Mr. Park._ That book is not proved.

_Mr. Gurney._ It is proved by being found in the trunk.

_Mr. Park._ I object to that book being read; that is not the book which was before proved; as to that, Mr. Lavie gave some evidence of the hand-writing before the entry was read.

_Mr. Germain Lavie called again;_

_Examined by Mr. Gurney._

_Q._ Do you believe that to be the hand-writing of Mr. De Berenger?

_A._ Yes I do, most certainly.

_Cross-examined by Mr. Park._

_Q._ I observe this is pencil writing you have been speaking to; did you ever see any writing of this person in pencil before?

_A._ No, never.

_Q._ There is no difference in a man's writing with a pencil and with a pen?

_A._ I conceive that to be written by Mr. De Berenger.

_Q._ It is exactly like the character of that letter which has been given in evidence upon your testimony?

_A._ Yes, it is the same sort of writing.

_Mr. Serjeant Best._ I submit to your Lordship, still I am not removed from my objection. There is first a check of £.98. 2_s._ 6_d._; then an attempt is made to trace £.50. of that into the hands of Mr. De Berenger; the way in which that is attempted is, that a person says he gave change for that note of £.50.;--beyond that, they have produced a pencil memorandum, proved to be in the writing of Mr. De Berenger, at least there is some evidence of that; that pencil memorandum is merely this, not that a particular bank note; not that the note which came into the hand of the witness, and for which he gave change, but that a bank note of £.50. was paid to W. S. It does not appear that it was that bank note, and this, I submit, is no evidence in a criminal case.

_Mr. Gurney._ I submit to your Lordship it is evidence, _valeat quantum_, it does not prove that Smith received that bank note from De Berenger, but that it came from De Berenger's servant; I shall give no other evidence to bring it home to De Berenger, and I submit that it is admissible evidence, as that which is proved to come so near as the child, the wife, or the servant.

_Lord Ellenborough._ I think it is not evidence; it does not get the length of William Smith; but even if it were to be taken to refer to William Smith, it does not connect it with this bank note, or any other means of payment. I cannot translate "W. S." into "William Smith my servant," and "£.50." into "this £.50. bank note." You do not call William Smith.

_Mr. Gurney._ No, certainly not, my Lord,--I shall leave that to my learned friends.

_Mr. Benjamin Bray sworn;_

_Examined by Mr. Gurney._

_Q._ Where do you live?

_A._ At Sunderland.

_Q._ Will you look at this £.40. note, [_shewing the witness the note just produced_,] did you receive that £.40. note from any one?

_A._ From the waiter of the Bridge Inn at Sunderland.

_Q._ Did you see Mr. De Berenger about the time of the receipt of it?

_A._ I had seen him often prior to that.

_Q._ At Sunderland?

_A._ Yes.

_Q._ A waiter brought it to you?

_A._ Yes, with Major Burne's compliments.

_Q._ He brought you some message with it?

_A._ Yes, I gave him six £.5. notes for it, and ten £.1. notes.

_Q._ Bank of England notes?

_A._ No, of the Durham Bank.

_Q._ Did any thing pass between you and Mr. De Berenger afterwards, on the subject of that note?

_A._ The waiter returned in a few minutes afterwards.

_Q._ Did any thing pass afterwards between you and Mr. De Berenger, on the subject of that note?

_A._ Yes, he came shortly afterwards to take his leave of me.

_Lord Ellenborough._ Where did he come to?

_A._ To my house.

_Q._ What shop do you keep?

_A._ I am a druggist and agent to the Durham bank.

_Mr. Gurney._ How long had Mr. De Berenger been at Sunderland?

_A._ I had known him there from the 7th to the 21st of March. I apologized for not being able to send more Bank of England paper in exchange for the Durham bank notes; the waiter having been to request that I would send him Bank of England paper, I gave him a message to Mr. De Berenger.

_Q._ You made him an apology for not having sent him more bank paper in exchange?

_A._ Yes.

_Q._ In exchange for the note you had at first received; for that note?

_A._ Yes.

_Q._ What did Mr. De Berenger say, on your making the apology?

_A._ I apologized for not having sent him more Bank of England paper, and he acknowledged having received the whole of the notes I had sent him from the waiter.

_Q._ By what name did Mr. De Berenger go there.

_A._ Major Burne; he gave me his name.

_Q._ Is that the gentleman you have been speaking of? (_pointing to De Berenger._)

_A._ Yes.

_Cross-examined by Mr. Richardson._

_Q._ How do you know that £.40 note to be the note you received?

_A._ By a copy that I made at the time.

_Q._ Have you got that copy with you?

_A._ This is a copy of my waste book--the waste book is at Sunderland.

_Q._ You identify it by means of the copy which you have made from your waste-book, which book you have left at Sunderland.

_A._ Yes; and also from my initials on the back of the note.

_Q._ Made at the time?

_A._ A day or two afterwards.

_Lord Ellenborough._ Before you parted with it?

_A._ Yes.

_Mr. Richardson._ You are the agent of the Durham Bank?

_A._ Yes.

_Q._ You have a great many notes passing through your hands?

_A._ Yes.

_Lord Ellenborough._ Are you sure that when you made that memorandum, you had perfectly in your recollection from whom you took that note?

_A._ Yes, perfectly.

_Mr. Richardson._ You did not keep this distinct from your other notes?

_A._ No.

_Q._ You mixed it with your other notes?

_A._ Yes.

_Q._ You marked it several days afterwards?

_A._ I marked it between the 31st of March and the 4th of April, when I remitted it.

_Q._ You put your name upon every bank note that passes through your hands?

_A._ No, I do not.

_Q._ Why did you put your name upon this?

_A._ I cannot give a satisfactory answer why.

_Q._ Do you generally put your initials on notes that pass through your hands, or not?

_A._ No, I do not.

_Q._ How came you to do so in this particular case?

_A._ I have before answered that I cannot give a satisfactory reason.

_Q._ At Sunderland, which is a place of great business, do not a large number of bank notes pass through your hands?

_A._ Yes, there do of course.

_Lord Ellenborough._ Did the transaction of your sending Durham notes, and his objecting to not having more bank notes, fix the circumstance of the £.40. note more strongly in your memory?

_A._ I have not had another £.40. note since that.

_Q._ Nor had you at the time?

_A._ No, I had not.

_Q._ Nor since?

_A._ No.

_Mr. Gurney._ The only remaining head of evidence that I have to trouble your lordship with, is with respect to a check for £.56. 5_s._ paid by Mr. Fearn to Mr. Butt, and the produce of that.

_Mr. Pattesall sworn;_

_Examined by Mr. Gurney._

_Q._ Are you a partner in the house of Bond & Company?

_A._ I am.

_Q._ Look at that check of Mr. Fearn's, did you pay that?

_A._ I did not.

_Q._ Who did pay it?

_A._ Mr. Evans, a clerk of ours.

_Q._ Is Mr. Evans here?

_A._ Upon my word I cannot tell.

_Mr. Gurney._ He has been expressly desired to be in attendance.

_Lord Ellenborough._ Then call him upon his subpoena if he does not appear.

_Mr. Gurney._ Just look and see whether the entry is Evans's hand-writing.

_A._ It is Evans's hand-writing.

_Thomas Evans was called on his subpoena, and did not appear._

_Lord Ellenborough._ This entry then will be of no use to you.

_Mr. Gurney._ No, my Lord; it was mentioned that there were two Napoleons in the letter case: Mr. Wood has those two Napoleons to produce.

[_Mr. Wood produced two Napoleons._]

_Mr. Gurney._ This, my Lord, is the evidence on the part of the prosecution.

* * * * *

_Mr. Serjeant Best._ I wish to apprize your Lordship that I think it will be necessary for the defendants to call witnesses.

_Lord Ellenborough._ I should wish to hear your opening, and to get into the defendants case, if I can; there are several gentlemen attending as witnesses, who, I find cannot, without the greatest public inconvenience, attend to-morrow.

_Mr. Park._. The difficulty we feel, I am sure your Lordship will feel as strongly as we do the fatigue, owing to the length of our attendance here; but we will proceed if your Lordship desires it.

_Lord Ellenborough._ I would wish to get into the case, so as to have the examination of several witnesses, upon whom the public business of certain offices depend, gone through, if possible.

_Mr. Park._ I have undergone very great fatigue, which I am able to bear; but I would submit to your Lordship the hardship upon parties who are charged with so very serious an offence as this, if their case is heard at this late hour; and then a fresh day is given to my learned friend to reply.

_Lord Ellenborough._ It will not be a fresh day when you will be here by nine o'clock, and the sun will be up almost before we can adjourn; I will sit through it if you require it, rather than that.

* * * * *

_Mr. Alley._ On the part of M'Rae, I shall not trouble your Lordship with any witnesses or observations.

* * * * *

MR. SERJEANT BEST.

May it please your Lordship,

Gentlemen of the Jury,

I assure you I am extremely sorry on my own account, and still more sorry on your account, that it will be necessary for me, if I am able to do it, to take up a considerable portion more of your time, in the discussion of this most important question; a question, certainly, of great importance to the public; a question, of great importance to the three individuals whose interests are committed to my charge; for, gentlemen, upon the issue of this question, with reference to them, depends whether they are to hold the situation in society which they have hitherto held, or whether they are to be completely degraded and ruined.

Gentlemen, allusions in the course of the day have been made to that which passes at the Old Bailey; no sentence that can be passed there, can be felt more by the persons on whom it is passed, than a verdict of Guilty will be felt by these three persons.

Gentlemen, from the attention I have observed every one of you giving to the evidence, and from the accuracy of the notes that have been taken by the noble and learned Judge, I have, at this late hour, this consolation left to me, that whatever I may omit, you will supply; whatever I shall not be able to impress upon you, in the manner it ought to be impressed upon you, will be brought to your consideration by his Lordship, and that that explanation which I shall feel myself unable to give, he will be in a situation to give; and with this hope, I proceed to call your attention to the case of these gentlemen:--My Lord Cochrane, Mr. Cochrane Johnstone, and Mr. Butt; the interests of the other defendants being committed to much abler hands.

Gentlemen, there are very few of the introductory observations that were made to you by my learned friend, which I am in a condition, or feel any disposition to dispute. I by no means dispute, that what is charged in this indictment is not an offence of very considerable magnitude; if I was satisfied that it was not an offence which the law of the country reaches, I protest to you, that I would not take any objection upon that score; because I am quite convinced that acquittal, upon such a ground as that, would be an acquittal that would not answer the purpose of the respectable gentlemen that I represent before you.

Gentlemen, I have observed some of my learned friends asking questions, which seemed calculated to obtain answers on which some legal objection might be founded. I hope you will recollect, that I have never asked any such questions; on the contrary, I have avoided looking at the indictment, lest I should see any thing that should force an objection upon me, and prevent this case from being decided upon its merits.

Gentlemen, I certainly do admit, that it is a crime, and a crime of a great magnitude, for any person, by means of the circulation of false news, to attempt to raise the price of the public funds; in consequence of which, individuals who are fair purchasers of such funds, are compelled to pay more than the stock they purchase is fairly worth. I hope, whoever were the authors of this, which has been called, and improperly called, a hoax, will suffer for their offence; but when we are reminded, that certain persons have suffered by it, I must say, that the fair purchasers who have suffered, are but few in comparison to those who are objects of no compassion, namely, the gamblers who attended at the Stock Exchange upon this occasion.

Gentlemen, I admit also, that which has been stated by my learned friends, that it is not necessary, for the purpose of bringing home the crime of conspiracy to any individual who may be charged with it, that you should call a person who was present at any of the consultations--shew the casting of the different parts of those who were to act in the drama, and point out distinctly who those were who were to perform, and how afterwards they have performed these parts. I admit that all this is not necessary to be proved: conspiracy, like every other offence, may be brought home by circumstantial proof. Indeed, circumstantial proof is, in many cases, more satisfactory than that which is direct and positive, because it is free from the suspicion of falsehood. But I deny, upon this occasion, that there are any circumstances that bring home the crime of conspiracy to any of the three persons whom I represent. All that is proved may be true, and yet the defendants may be innocent. The circumstantial evidence that alone can warrant conviction, is the proof of such facts as could not have happened had the accused been innocent.

Gentlemen, whether Mr. De Berenger be the Colonel Du Bourg who pretended to bring the news from France, or not, it is not for me to discuss; I shall leave that question to my learned friend Mr. Park, who is counsel for Mr. De Berenger, and who, I hope, will be able to satisfy you that Mr. De Berenger is not that Colonel Du Bourg; if he is not that Colonel Du Bourg, then there is no evidence against either of the parties I represent. But admitting, for the purpose of my presenting the case to you which I am called upon to support, that De Berenger is that Du Bourg, still it is another question, whether either of these defendants were connected with De Berenger; and I do, notwithstanding what has been stated to you by my learned friend, that he was perfectly certain that he should bring home the guilt charged by this indictment to all the defendants, submit most confidently, that there is no evidence against either of my clients.

Gentlemen, it is extremely difficult, amidst such a mass of evidence as has been laid before you, to bring one's attention, or to call your attention immediately to the evidence that applied to any particular person. I will take the three cases in the order in which they stand upon this indictment; and the first of those three for whom I am concerned, is my Lord Cochrane.

Now, gentlemen, let us examine the evidence that is offered to you, to prove that he is connected with this conspiracy. It consists in this, that my Lord Cochrane did, on the 21st of February, sell £.139,000 Omnium; and further, that Mr. De Berenger was, on the morning of the 21st of February, at the house of Lord Cochrane. Gentlemen, as far as I can collect, from the attention I have been able to give to the evidence, I have stated the utmost effect of the evidence against my Lord Cochrane; for, gentlemen, though it was suggested by my learned friend, Mr. Gurney, that he should trace some of the notes which were found in the desk of Mr. De Berenger into the hands of my Lord Cochrane, I beg to state, that there is not one single note traced into the hands of my Lord Cochrane. I admit that there are notes found in the chest of De Berenger, traced into the hands of the other two defendants; but I believe I shall be able, by and by, satisfactorily to shew you how these notes came from the hands of one of the defendants into the hands of De Berenger, and to prove that they came into the hands of De Berenger, under circumstances altogether unconnected with that which is the subject of your enquiry; but I am, for the present, only considering the case of Lord Cochrane; and I would beg the favour of his Lordship now to refer to his notes, and I am persuaded his Lordship will go along with me in the observations I am making, that there is no evidence whatever to bring home any one of the notes to my Lord Cochrane.

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 quantity 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 space 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. Butt_. 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. Butt; 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 Butt'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 Butt, yet that he afterwards received those notes, not from the hands of Lord Cochrane, but from the hands of Mr. Butt; for Mr. Butt he went to the Bank; for Mr. Butt he got the two hundred £.1 notes, and those two hundred £.1 notes he delivered back into the hands of Mr. Butt. 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. Butt, 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. Butt 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 circumstance 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 circumstance, that is proved only by Lord Cochrane's affidavit, and I think I shall shew that Lord Cochrane, in that affidavit, completely explains that circumstance.