Chapter 30

Then, Gentlemen, we come to that which is a very important part, and indeed a main part of this case, _the identity of Mr. De Berenger_; that identity, including the question of hand-writing. Upon this subject we have had, for the last two hours, the evidence which has nauseated every man in Court; the evidence of the alibi, which no man living can believe; in which no two witnesses agree; in which we have contradiction after contradiction from every one of them. My learned friend, Mr. Park, last night told us we should have the evidence of two watermen, who had rowed Mr. De Berenger across the Thames, who knew his person perfectly well, and who recollected the occurrence particularly, because it was the first Sunday after the frost had broken, and the river became navigable. I suppose the river is frozen again this morning as they are not here. Gentlemen, the interval of the night has made the advisers or manufacturers of this part of the case reflect upon it, and they have brought, instead of the two watermen from the river, the Irish ostler from Chelsea. Gentlemen, they who projected this alibi, did not attend to one circumstance, which cannot fail to have struck you long ago, namely; that this is a case perfectly unassailable by alibi. Let it be supposed, that I had not identified Mr. De Berenger by the persons who saw him at Dover; by the persons who saw him on the road; by those who saw him get out of the chaise at the Marsh Gate, and get into a hackney coach; that I had not identified his countenance by any one of them, still his identity is established beyond all contradiction, for knowing that an alibi would be attempted, I defeated it by anticipation. I take up De Berenger at Dover as I would a bale of goods--I have delivered him from hand to hand from Dover to London--I have delivered him into the house of Lord Cochrane--and I have Lord Cochrane's receipt acknowledging the delivery. You have, at the Ship at Dover, the person pretending to be Colonel Du Bourg, the aid de camp, in a grey military great coat, in a scarlet uniform embroidered with gold lace, and he has a star and a medallion. You have him traced from stage to stage, identified by the Napoleons with which he is rewarding his postillions; the first postillion delivers him to the second, the second to the third, and so on till he is landed in the house of Lord Cochrane. Who went into the house of Lord Cochrane? Ask Lord Cochrane. It was Mr. De Berenger, and it is not pretended that any other person entered that house in that dress, or any thing resembling it; and therefore if I had not any witness to speak to the identity of the countenance of Mr. De Berenger, I have proved such a case as no alibi can shake. But add to that the evidence of identity. I have had much experience in courts of justice, and much upon the subject of identity, and I declare, I never in my life knew a case of identity, by the view of countenance, so proved. The countenance of Mr. De Berenger is not a common one, a person who has observed it cannot have forgotten it. I do not call merely such persons as have seen him at the messenger's, or in the court of King's Bench, or anywhere else. I put the case to the severest test, calling witnesses who had not seen him since his apprehension, desiring them to survey the court, Mr. De Berenger sitting, as he has done, undistinguished from other persons, in no conspicuous situation, and you saw, how one after another, when their eyes glanced upon his face, recognised him in an instant as the person who had practised this fraud. Now, gentlemen, if this were not a case of misdemeanor, but a case in which the life of the party were to answer for the crime he had committed, I ask, whether many--many--many guilty men have not forfeited their lives upon infinitely less evidence than I have given as to the person of Mr. De Berenger?

Then if Mr. De Berenger was Colonel Du Bourg, what becomes of the question of hand-writing? The hand-writing of De Berenger to Du Bourg's letter, was spoken to by Mr. Lavie, who had made particular observation on his hand-writing, having seen him write at the messenger's. My learned friend, Mr. Park, says he should not know the hand-writing from an hour's observation; perhaps not; but this was more than an hour's observation; it was observation repeated more than once, and it was observation for the very purpose. The fact confirms the judgment of Mr. Lavie. I ask, who sent the letter to Admiral Foley? The answer is, Mr. De Berenger; whose hand writing is it? can you have any doubt that it is the hand-writing of the person who sent it? On this point, witnesses are called by De Berenger (one of them a most respectable witness, undoubtedly) to prove that this does not resemble his ordinary hand-writing. No, gentlemen, certainly not; he would not write in his usual hand. Lord Yarmouth says, the character is more angular than his usual hand. That would be the case, where a man is writing a feigned hand; but still that occurs here, which almost always does occur, a person so writing is very likely to betray himself just as he gets to the end, and when he comes to sign his name, the initials shall be so striking, as at once to excite the observation of such a man as Lord Yarmouth, and his lordship says, This R in the signature of R. Du Bourg certainly does very much resemble the R in the usual signature in C. R. De Berenger; but, taking the evidence of identity and that together, it is clear, that he was the person at Dover; that he was the person, therefore, who sent the letter to Admiral Foley; and the evidence of Mr. Lavie is therefore so strongly confirmed, as far to outweigh all the evidence you have had on the other side respecting his hand-writing.

Then, gentlemen, we come a little further; my learned friends last night addressed you at great length, and with great earnestness, upon Lord Cochrane's affidavit, and they requested you would not suppose Lord Cochrane was capable of making a false affidavit. Gentlemen, that Lord Cochrane would have been incapable of deliberately engaging in any thing so wicked some time ago, I am sure I as earnestly hope as I am desirous to believe; but you must see in what circumstances men are placed, when they do these things; Lord Cochrane had first found his way to the Stock Exchange, he had dealt largely in these speculations, which my learned friends have so liberally branded with the appellation of _infamous_; he had involved himself so deeply, that there was no way, but by this fraud of getting out of them; he had then got out of them in this way, and then he found, as guilty people always do, that he was involved still deeper; he found the great agent of the plot traced into his house, and traced into his house in the dress in which he had perpetrated the fraud; he was called upon for an explanation upon the subject. Gentlemen, he was gone to perdition, if he did not do something to extricate himself from his difficulty; then it was that he ventured upon the rash step of making this affidavit, and swearing to the extraordinary circumstances upon which, as I commented so much at length in the morning of yesterday, I will not trespass upon your attention by making comments now.

My learned friends were properly anxious not to leave Lord Cochrane's affidavit to stand unsupported; they were desirous of giving it some confirmation, and they exhausted two or three precious hours this morning in calling witnesses to confirm it; but those witnesses were called to confirm the only part of the affidavit which wanted no confirmation; they were called to give Lord Cochrane confirmation about applications to the Admiralty, and applications to the War Office, and applications to the Colonial Office, by Sir Alexander Cochrane for De Berenger; and after they had called witness after witness to give this confirmation upon this insignificant and trifling point, they leave him without confirmation upon that important, that vital part of this case to my Lord Cochrane, _videlicet_: the dress which Mr. De Berenger wore at the time he came to that house, and had with him that interview. Lord Cochrane puts him on a grey military great coat, a _green_ uniform, and a fur cap. I have proved, that the uniform he wore was _red_. My learned friend, Mr. Serjeant Best, felt the strength of the evidence for the prosecution upon that, and he endeavoured to answer it by a very strange observation. "Why," says he, "consider, Lord Cochrane had been accustomed to see Mr. De Berenger in _green_; he did not make his affidavit till nearly three weeks afterwards; and how very easily he might confound the _green_, in which he ordinarily saw him, with the _red_, in which he saw him on that day, and on that day only." Now, if I wanted to shew how it was impossible for a man to make a mistake, as to the colour of the coat in which he had seen another, I should select the instance in which he had seen that other in a peculiar dress but for once.

But, gentlemen, my learned friend had to account for more than the red coat. It is not a plain red coat, it is a scarlet military uniform, the uniform of an aid-de-camp; and on the breast, there is that star which you have seen; and suspended from his neck, there is the medallion. Lord Cochrane is a man of rank, not unacquainted with the distinction of a star. If he was not in the secret of De Berenger's dress, he must have had curiosity upon the subject; and I beg to ask, what is to be said for Lord Cochrane seeing De Berenger in that scarlet uniform, with that star on his breast, and that medallion suspended from his neck, swearing that the uniform was _green_, and that he lent De Berenger a black coat, because he could not wait on Lord Yarmouth in that _green_ uniform, which you will recollect was the uniform of Lord Yarmouth's corps, in which, Lord Yarmouth has told you, it would have been more military to have waited upon him, than in any other dress.

Gentlemen, there is more than this. My friends call one of Lord Cochrane's servants, who received De Berenger when he came there, who told him in the hearing of the hackney coachman, that his master was gone to breakfast in Cumberland-street, who took the note which De Berenger wrote to Cumberland-street, who brought back the note, and upon that note Mr. De Berenger wrote two or three lines more. Then what becomes of Lord Cochrane's affidavit, who says the signature was so near the bottom of the paper, that he could not read it. The postscript is written after the signature, yet Lord Cochrane cannot read the note, because the signature is written so near the bottom; and then when my learned friends had that servant in the box, they did not venture to ask that servant what was the dress of Mr. De Berenger. After calling witnesses to confirm Lord Cochrane, as to applications to different offices by Sir Alexander Cochrane, they dare not ask Lord Cochrane's own servant as to the dress De Berenger wore, to try whether he could confirm Lord Cochrane's affidavit upon that subject. They then tell us, that another servant is gone abroad with some admiral, and I pray you, as he was here long after this business was afloat, how was it he was suffered to go, unless his absence was more wanted than his presence; but they have a maid-servant who also saw him, and she is not called; and my learned friends, though they were so anxious to confirm Lord Cochrane's affidavit, leave him without confirmation, utterly abandoned and hopeless.

_Mr. Brougham._ Davis had left.

_Mr. Gurney._ I say why was he suffered to go away. The maid-servant is still here, and she is not called. Gentlemen, I say so much for the affidavit of Lord Cochrane, which is a vital part of this subject, and upon which, I observe with great regret; but if I forbore the observations, I should desert the duty which I owe the public. Gentlemen, there is indeed but little more for me to trouble you with, I think; but there was an observation made by my learned friend, which is very important; they cross-examined Mr. Wright, whom I put up to prove the affidavit, by asking him, whether Lord Cochrane did not at the time he put that affidavit into his hands, observe, that now he had furnished the Stock Exchange Committee with the name of Mr. De Berenger, if he was the person who practised this fraud. Gentlemen, Mr. Serjeant Best laboured this point with you in the course of his address to you, and labored it with great ability; but my learned friend did not advert to one circumstance respecting that affidavit, which disposes of all his observations in an instant. _When_ did Lord Cochrane furnish the name of De Berenger to the Committee of the Stock Exchange? _On the 11th of March_; Mr. De Berenger having quitted London on the 27th of February, twelve days before; and when my Lord Cochrane had no more doubt that he was out of the country, than that he was himself in existence; he was gone to the north, not gone to the south, to Portsmouth, to go on board the Tonnant; he had been gone twelve days, twice as long as was necessary to find his way to Amsterdam; it was believed he was safe there, and when it was thought he was quite safe, Lord Cochrane was extremely ready to furnish the Stock Exchange Committee with the name of the party, and so to get credit for his candour. "What can a man do more? I have given you the name of the party, only find him, and you will see whether he is Du Bourg, or not;" he did not expect that he would be found; he was, however, found, and the intentions of these parties were frustrated.

I come now, gentlemen, to another part of the case, which would have excited my astonishment, if it had not been for the management and machinery that I had seen in this case; still I could hardly have expected to have met with that which we have had to-day in evidence, I mean the mode which has been resorted to, of accounting for the bank notes which were found in the letter-case of De Berenger, and those that were paid away by him. Gentlemen, the Defendants knew this part of our case; in truth, there is no surprize upon them in any part, they knew it all. You have it in evidence, that they have inspected the notes in the letter-case; they knew the use that we were to make of them, and then we have that notable expedient, the fruit of Mr. Cochrane Johnstone's fertile brain, the mode of accounting for all these bank notes, by this extraordinary transaction of the drawings of a design for improving an acre of ground behind Mr. Cochrane Johnstone's house in Alsop's buildings.

Now, gentlemen, only have the goodness to look at it. The work was done, it is said, last September; £.50 was then paid on account, respecting which you might, from Mr. De Berenger's letter, have supposed that no voucher had been given, for it is mentioned carelessly in the postscript, "a-propos, you have paid me £.50 on account." On the contrary, you find that Mr. Cochrane Johnstone took a stamped receipt at the time; then we have the architect called, as in an action on a quantum meruit; and architects have most magnificent ideas of plans and money, and he tells you, that two or three hundred pounds would not have been too much for such a design as that. Gentlemen, I think we are all as well qualified to decide upon that, as an architect; you will, if you think proper, look at it, and form your own judgment. But how comes it that we have these strange accounts from Mr. Tahourdin, his verbal testimony contradicting his client's letter. Mr. Tahourdin says, "I did delicately, but I did by Mr. Berenger's desire, again and again hint to Mr. Cochrane Johnstone the subject of payment, to which I must do him the justice to say he was never averse. I had done this some time before February, but no money had come;" and then, as soon as these words were out of his mouth, he puts in Mr. De Berenger's letter to Mr. Cochrane Johnstone, who says, "You (Mr. Cochrane Johnstone) have been pressing me to take money, and now I will take it." Oh, gentlemen, when does this fit of money-paying and money-taking seize these two persons? _On the 22d of February!_ The day speaks volumes. Added to all the extraordinary coincidences, which the Defendants wish you to believe were accidental, we now have the acknowledged payment of money by Mr. Cochrane Johnstone to Mr. De Berenger on the day after Mr. De Berenger had so rendered Mr. Cochrane Johnstone, Lord Cochrane, and Mr. Butt, the important service of raising the funds by the imposition that he had practised, of which they had so promptly and profitably availed themselves.

Then, gentlemen, we have the extraordinary evidence of Mr. Tahourdin, the attorney for Mr. Cochrane Johnstone and for De Berenger, from which it appears that they were all getting up the defence to the indictment by anticipation. Mr. Tahourdin is to give a contemporaneous existence to the transaction by the production of these letters and instruments, the receipt for two hundred pounds, and the promissory note for two hundred pounds more. From all this it is plain, that Mr. Cochrane Johnstone, at the very moment when he was settling with his agent his reward for the fraud he had committed, like a man of great foresight, looked forward to the possible consequence of the trial of this day, and he provided for it, as he thought, sufficiently:--"It may be thought, Mr. De Berenger, that this money which I am now giving you is for the business of yesterday, let us take care to prevent it; you write to me, I will write to Tahourdin; it is not absolutely necessary (perhaps, he added) to trust him with the secret, he will be an admirable witness hereafter; I will put into his hands the promissory note and the receipt, he will give them contemporaneous date, and then I shall be able to account for my giving you, on this 26th of February, four hundred pounds."

Persons who devise these contrivances, gentlemen, have not, as I observed to you yesterday, the skill to provide for all circumstances, and now and then the very things which they do to effect concealment, shall lead to detection.--Now mark:--Mr. Cochrane Johnstone is to pay and to lend to Mr. De Berenger four hundred pounds. As he was to give him four hundred pounds, why did he, or Mr. Butt (for they are one and the same) take so much trouble, and go through so much circuity in shifting and changing the bank notes? You observe, that the bank note for £.200 is sent to the bankers, and exchanged for two notes of £.100 each; and then the same agent is sent to the Bank of England to get two hundred notes of £.1 each; and that about the same time another agent is sent to the bank, to exchange the two other notes for £.100 each for two hundred more notes of £.1 each. Why, for the purpose of this payment and this loan, do they go through this operation of changing and changing again, to procure a vast number of notes for Mr. De Berenger, to enable him to take this long journey to the north? Why, gentlemen, it is because one pound notes are not traced so easily as notes for one hundred pounds; people take these small notes without writing upon them, but they do write upon such large notes as £.100 and £.200, and that they knew might afford means of immediate detection, but the device, when detected, makes the fact still stronger, and you have in proof, that sixty-seven of one hundred, and forty-nine of another hundred, were found at Leith in De Berenger's writing-desk. This affords a strong presumption, that he had the whole four hundred, besides which I have traced to him; a forty-pound note which he changed at Sunderland, and a fifty-pound note which he gave to his servant, Smith; and these, too, have been traced up to Mr. Butt. When all these turnings and windings are thus discovered, what measure of your understandings, gentlemen, must these Defendants have taken, to imagine that you could be imposed upon by such flimsy materials as these manufactured papers? The device is gross, palpable, and monstrous. What does all this prove?--Nothing _for_ the defendants; but then it proves a great deal _against_ them. Recollect too, gentlemen, that this £.400, which is shewn to come out of the hands of Mr. Cochrane Johnstone and Mr. Butt, after the 24th of February, is also shewn to have come originally out of the hands of Lord Cochrane himself on a prior day; and therefore you have the money coming out of the hands of all the three; the reward of the agent coming out of the hands of the persons who had been benefited by the fraudulent services of that agent.

Gentlemen, it is difficult to abstain from many more observations on this defence; but the case is too clear to require them, and I will no longer trespass upon your patience. It appears to me absolutely impossible to doubt respecting the guilt of the several defendants. De Berenger is Du Bourg. When De Berenger is Du Bourg, the rest all follows; he was the agent of others, unquestionably; he was not himself the principal. You have had a mass of perjury exhibited to-day to extricate him, and consequently his employers. That, like all falsehoods, when detected, only serves to make conviction more clear and more certain. With these observations I sit down, feeling most grateful for the patient attention I have received, both from his Lordship and from you, and perfectly sure that you will do justice to the Public.

SUMMING UP.

Lord ELLENBOROUGH.

Gentlemen of the Jury,

You are now come to that period of the case in which your most important duty is to be discharged, as it respects the individuals who are the object of this indictment, and the public, whose interests are to be protected by the justice you are called upon to administer.

This is an indictment for an offence of great malignity and mischief; it is for the offence of conspiracy, which is charged to have been committed by the eight persons whose names are upon this indictment; and it is for you to consider upon the statement of the evidence I shall make to you, how far that offence is brought home to all or any of these Defendants.