Chapter 39

_Mr. Serjeant Best._ I submit to your Lordship there could be no difficulty in that. If the indictment had been preferred before the 21st February, your Lordship's observation would be unanswerable; but after that period, the prosecutors could have no difficulty in obtaining the names of individual purchasers from the books of the Stock Exchange.

_Mr. Justice Dampier._ The crime was complete before the 21st of February.

_Mr. Justice Le Blanc._ If the conspiracy was, by false rumours to raise the price of the public funds on a certain day, with a view to oblige persons who should purchase into the funds on that day to pay an increased price, the crime would be complete if the funds were raised on that day, though no person should purchase a halfpenny-worth of stock; in like manner as conspiring to raise the price of commodities in a market, though no person should purchase, would still be a crime.

_Mr. Serjeant Best._ The commodities in a market are articles of necessity, which, I apprehend, makes a distinction.

_Lord Ellenborough._ Whether it be an article of necessity, or if universal sale, comes to the same thing. Besides, as to not stating the multitude, one would think we had forgotten the number of cases which have been decided on charges which are in their nature multitudinous; as for instance in barratry, or the inciting persons to institute and maintain suits; in those instances you need not state the individuals injured.

_Mr. Serjeant Best._ The instances of barratry and of common scolds, I believe, are the only exceptions.

_Lord Ellenborough._ By no means; I remember a case in which it was held, that where the circumstances cannot be conveniently specified upon the record, the necessity forms the exception.

_Mr. Serjeant Best._ But in all those cases your Lordship will find the excuse is stated upon the record; as ignotum, where an unknown person has been murdered.

_Lord Ellenborough._ In this case the nature and reason of the thing suggest the excuse, or one must reject one's common sense. The nature and reason of the thing form an exception, if it could be necessary to state the name of an individual, as having suffered from an act of this kind; but it is the tendency of the act, not the success of it, that constitutes the crime. If there had been an apprehension of pestilence or commotion, which made it unsafe to resort to the Stock Exchange on the day on which the fraud was practised, the crime would have been as complete by the conspiracy, as it was by the damage sustained by individuals who suffered under it.

_Mr. Serjeant Best._ In whatever way your Lordships dispose of these objections, I shall be satisfied. I am sure your Lordships will excuse my mentioning, in a case of this sort, The King v. Robe, 2d Strange, p. 999, though it is not a case of conspiracy.

_Lord Ellenborough._ No doubt they ought in that case to have specified the persons, they had the means of stating every one of them. The offence did not consist in the combination, but in doing the very act they combined to do.

_Mr. Serjeant Best._ Another objection which applies to all the counts is, that it is stated, the intention was to produce a great rise in the Government funds of this kingdom. It appears clearly on the face of this record that the intention was very different; in fact there are no general Government funds belonging to the United Kingdom of Great Britain and Ireland.

_Mr. Justice Bayley._ But there are British and Irish funds?

_Mr. Serjeant Best._ Certainly, but that is not the allegation; the allegation is, that it was with a view to raise the funds of this kingdom, which supposes there are general funds of Great Britain and Ireland; whereas the funds of each are entirely distinct, and of that your Lordships will take notice, because there are Acts of Parliament which speak of the British and Irish funds separately. Therefore I submit to your Lordships, it is impossible those defendants could contemplate the mischief with which the count concludes.

_Lord Ellenborough._ In a large sense, the Irish funds are funds of this kingdom, and so are the British; they are each a part of the resources and means of the United Kingdom.

_Mr. Serjeant Best._ It is impossible they should have had in view the Irish funds.

_Lord Ellenborough._ Why not? I believe the Irish funds are saleable upon the Stock Exchange as well as the British. The interest is payable in this country, and the great money-market is here; and I believe full as much is done in the Irish funds here as in Ireland.

_Mr. Serjeant Best._ I am unacquainted with the fact; still I insist, that those funds could not be called the funds of this kingdom?

_Lord Ellenborough._ I think they could not be correctly called otherwise; they are funds of the kingdom in a large sense.

_Mr. Serjeant Best._ A very large part of the Irish funds were not raised by the United Parliament; and they have been kept distinct ever since the Union.

_Lord Ellenborough._ They may be distinctly arranged, and the application of them may have been in different ways; but still they are a part of one whole, they are a part of the stock and revenues of the United Kingdom.

MR. PARK,

My Lords, I am counsel for Mr. De Berenger alone. The first two general grounds of objection, my learned friend has argued very fully, and I shall not trouble your Lordships upon them; but I confess there seems to me to be a great deal of weight in the last objection. Your Lordship will recollect, the beginning of this indictment states His Majesty to be (as the Act of Parliament requires he shall be stated) the King of the United Kingdom of Great Britain and Ireland. The very first article of Union requires, that after a day specified, the kingdoms of Great Britain and Ireland shall be called the United Kingdom of Great Britain and Ireland. Throughout this indictment, in all the counts except the last, the offence charged is stated to have been committed for the purpose of creating a rise in price of the funds of _this kingdom_. Now your Lordships perhaps may not be aware, that in the seventh article of Union it is expressly provided, that the funds of the United Kingdom, forming the separate funds of the two kingdoms, shall continue to be kept distinct. But after the indictment has stated His Majesty as King of this kingdom, which can only mean of the United Kingdom, then what is stated of the funds of this kingdom, can only relate to funds of the United Kingdom; not in the large sense in which your Lordship considers them, as forming a part of the funds of the United Kingdom, but in the same sense the general funds of the United Kingdom, as His Majesty is stated to be the King of this kingdom; whereas by the articles of Union, the funds of the United Kingdom are to be considered two distinct funds.

_Mr. Justice Dampier._ Then the statement relates to a fund, which, by law, can have no existence.

_Mr. Park._ That may be, my Lord.

_Mr. Justice Dampier._ If it could by possibility relate to no other fund, the objection might be a good one; but there is a sense in which it does relate to the funds of the United Kingdom, distributively considered.

_Lord Ellenborough._ It is a description applicable to a new state of society, namely, to the aggregate kingdoms of Great Britain and Ireland; and the funds of the Kingdom are the funds of the United Kingdom.

_Mr. Park._ I only mention this to draw your Lordship's attention to the statute, in addition to the observations which my learned friend has made. Before I sit down, your Lordship will give me leave to suggest to the Court, upon the motion for a new trial, in addition to what the learned Serjeant threw out, an observation founded upon the Russian cases, where an Order of Council was stated, which your Lordships decided you could not take judicial notice of, that there was no proof of the falsehood of the rumours by which, they say, the price of the funds was to be raised.

_Lord Ellenborough._ But there was proof of the fabrication of them.

_Mr. Serjeant Pell._ On the part of Mr. Holloway, Mr. Random, and Mr. Lyte, I am not disposed to trouble your lordships with any observations in arrest of judgment.

_Lord Ellenborough._ Does Lord Cochrane wish to address any thing to the Court?

_Lord Cochrane._ My Lord, I am desirous, previously to your passing judgment upon this matter, that I should have an opportunity of explaining those things which I deem essential to be brought under your consideration.

_Lord Ellenborough._ If you mean to offer any observations in arrest of judgment, this is the proper time; we will afterwards hear, as a distinct thing, whatever may occur to you as fit to be presented to the Court, to induce them to grant a new trial; that is probably your object.

_Lord Cochrane._ I do not move in arrest of judgment.

LORD ELLENBOROUGH,

I am perfectly clear there is no ground for the motion in arrest of judgment, and that a public mischief is stated as being the object of this conspiracy. The conspiracy is, by false rumours to raise the price of the public funds and securities; that crime is committed in the act of conspiracy, concert, and combination, to effect the purpose, and the offence would have been completed even if it had not been pursued to its consequences, or from circumstances the conspirators had not been able to effect it. And the purpose is in its nature mischievous; it is one which strikes at the value of a vendable article in the market, and if it gives a fictitious value, by means of false rumours, it is a fraud on all who may by possibility have to do with that article; it is a fraud on all the public who may have to do with the funds on the day to which the conspiracy applies.

It seems to me quite unnecessary to specify the persons who became purchasers of stock, for without the gift of prophecy how could the defendants know who would be purchasers on a succeeding day? The impossibility is the excuse; besides if it were possible, the multitude is an excuse in point of law. But such a statement is wholly unnecessary, the conspiracy being complete independently of any persons becoming purchasers.

MR. JUSTICE LE BLANC,

The motion in arrest of judgment has been made upon three grounds; the first, that it is no crime in itself to raise the price of the public funds, and that we are to look to the indictment to see what is the mischief charged. The charge in the indictment is a conspiracy by false rumours to raise the price of the public funds on a particular day. I admit that the simple fact of raising or lowering the public funds is no crime. A man having a necessary occasion to sell a large sum out of the stocks, though it may have the effect of depressing the funds on that day; or to purchase a large sum, though he thereby raises the funds, commits no offence. But if a number of persons conspire to raise the funds on a particular day by spreading false rumours, that is an offence, and the offence consists in raising the funds by false rumours on that day, not in the simple act of raising the funds.

The next objection is, that the indictment states a purpose to defraud, without naming the persons who were to be defrauded. From the nature of the case, persons could not be named; the offence was a conspiracy on a previous day, to raise the price of the funds upon a future day. It was therefore uncertain who would be the purchasers; but the object was, that the price of the funds should be raised to all who should become purchasers on that day, and could not be aimed at particular individuals. The offence was general, in the same manner as if a false rumour were spread previous to a market-day, to raise the price of some commodity which should be brought to market.

A further objection is, that the indictment refers to the funds of _this kingdom_, and that since the Union, this kingdom can only mean the United Kingdom of Great Britain and Ireland. But although particular sums may be applied to the particular service of one or the other part of the United Kingdom, yet the public funds of either part are funds of the United Kingdom, and go in furtherance of the general service of the United Kingdom. It appears to me there is no reason why this judgment should be arrested.

MR. JUSTICE BAYLEY,

If the question admitted of any doubt, I should be desirous of giving the defendants the advantage of that doubt; but it seems to me perfectly clear, that there is no foundation for any one of the objections that have been made. To raise the funds may be an innocent thing; but a conspiracy to raise the funds by illegal means, and with an illegal view, is, as it seems to me, a crime; a crime which might perhaps affect the public in its aggregate capacity; but which, if it take effect, will certainly prejudice a class of His Majesty's subjects; and it is not necessary to constitute a crime, that it should be prejudicial to the public in its aggregate character, or to all of His Majesty's subjects, it is sufficient if it be prejudicial to a class of His Majesty's subjects. Here is not only a conspiracy for an illegal end, but a conspiracy to effect that end by illegal means; because when it is endeavoured to raise the funds by false rumours, the means are illegal, then is the end illegal. The object is to produce a temporary rise in the funds without any foundation; and the necessary consequence of that is, all those who purchase on the day, and during the period of time that rise affects the funds, will necessarily be prejudiced.

Another objection is, that the indictment does not state by name the persons whom the defendants intended to defraud; but it is said, the indictment would have been good if it had stated, that by means of this conspiracy certain persons, naming them, had been prejudiced. As to that, the conspiracy constitutes the crime, and it is sufficient to state the crime upon the indictment in the way it existed at the moment when the crime was complete. It might have happened from circumstances coming to light, that the plot should be detected before the mischief had been effected; yet the offence would not have been less, because the parties had done all in their power, and every thing that was necessary to constitute the crime, when they had formed the conspiracy, and used the illegal means for an illegal purpose. It depended not on them how far their crime would be prejudicial to others; but their criminality must depend on their own act, not upon the consequences of that act.

The other objection is, that the indictment describes the funds to be raised as the funds of _this kingdom_. It is true, that since the Union the funds which are raised must be raised in certain proportions upon one part of the kingdom and upon the other: but when those funds are raised, they become respectively the funds of the kingdom, they are raised by the Legislature of the kingdom, and are applied by the Government of the kingdom to such purposes as Parliament say they are to be applied to. But if you can properly predicate of them, that they are funds, in part only applicable to England, and in part to Ireland, still it is true that those two funds do constitute the funds of this kingdom; and when it can only be said, that the funds of this kingdom are distinguishable into British and Irish funds, then when you speak of the funds of this kingdom, you mean both the British and Irish funds.

MR. JUSTICE DAMPIER,

The charge upon this indictment is, that the defendants, by false rumours, conspired to create a temporary rise in the funds of the kingdom, in order to defraud those who should purchase into the funds on a particular day. I cannot raise any doubt in my mind, but that this is, according to any definition of the act of conspiracy, a complete crime of conspiracy. The means are wrong, they are false rumours; the object is wrong, for it is to give a false value to a commodity in a public market; and the consequences are injurious to all who have to purchase that commodity. This disposes of the first objection.

The second objection is, that the persons defrauded ought to have been named. The first answer to that is, the crime of conspiracy is complete when the concert to bring about an object with a mischievous intent is complete; it is not at all necessary for the perfection of the crime that its object should be attained. Therefore, the first answer is, there need be no person injured. The next answer is the impossibility of the defendants knowing before-hand who would be defrauded. It is said, the indictment was preferred after the mischief had taken effect, therefore the persons injured might have been named; but to require such a statement we must hold, that the consequential damage created by this crime is necessary to constitute the crime itself.

The third objection is, that there are no such funds as the funds of _this kingdom_; that there are no funds raised at the common charge of both parts of the United Kingdom. But every fund that is raised from either part becomes, when it is raised, a fund of the kingdom at large, and is strictly a part of the funds and government securities of the United Kingdom; the United Kingdom is answerable for them, and for the service of the United Kingdom, whether applied to England or Ireland, it is that they are raised. I think the description is better than any other which might be framed. For these reasons I am of opinion, there is no ground to arrest the judgment, nor any doubt to require a rule for a further discussion.

_Lord Ellenborough read the report of the evidence._

LORD COCHRANE,

Your Lordships having listened to those who had any thing to offer which they considered material for their defence, emboldens me to trust that your Lordships, though I do not address you by Counsel, will grant me a similar indulgence, and even that you will extend that indulgence further to me on account of my not appearing by Counsel, for the reasons which I had the honour to state to you upon a former occasion. In order that those feelings which must agitate me on the present occasion, may as little as possible enter into what I have now to state, I have judged it proper to reduce it to writing; and in order to give the Court as little trouble as possible, to make my statement as short as the circumstances of the case appear to me to admit of.

It has been my very great misfortune to be apparently implicated in the guilt of others with whom I never had any connexion, except in transactions, so far as I was apprised of them, entirely blameless. I had met Mr. De Berenger in public company, but was on no terms of intimacy with him. With Mr. Cochrane Johnstone I had the intercourse natural between such near relatives. Mr. Butt had voluntarily offered, without any reward, to carry on stock transactions, in which thousands, as well as myself were engaged, in the face of day without the smallest imputation of any thing incorrect. The other four defendants were wholly unknown to me, nor have I ever, directly or indirectly, held any communication with them. Of Mr. De Berenger's concern in the fraud, I have no information, except such as arises out of the late trial. With regard to Mr. Johnstone and Mr. Butt, I am willing to hope that they are guiltless. They repeatedly protested to me their innocence. They did not dare to communicate any such plan to me, if such was projected by them, or either of them. Be they guilty, then, or be they, one or both, erroneously convicted, I have only to lament, that, without the most remote suspicion of their proceedings, if they, or either of them, were concerned in the fraud, I have, through my blameless intercourse with them, been subject to imputations which might, with equal justice, have been cast upon any man who now hears me. Circumstanced as I am, I must keep myself wholly unconnected with those whose innocence cannot be so clear to me as my own. Well had it been for me if I had made this distinction sooner.

I do not stand here to commend myself--unhappily, I must seek only for exculpation; but I cannot exist under the load of dishonour which even an unjust judgment has flung upon me. My life has been too often in jeopardy to make me think much about it; but my honour was never yet breathed upon; and I now hold my existence only in the determination to remove an imputation, as groundless, as it is intolerable.

The evidence which I now tender to your Lordship, will aid me in performing this duty towards myself, my rank, and my profession. I first offer the affidavit, which I have repeated at a risk which I formerly had no opportunity of encountering. I have been told, that I then incurred the moral guilt of perjury, without exposing myself to the legal penalties. I know nothing of such distinctions. I have repeated the statement upon oath--and I am now answerable to the laws if I have falsely sworn. The affidavits of three persons who saw De Berenger at my house on the 21st of February, fully confirm my statement, and I have only been prevented from bringing forward a fourth, by his sailing to a distant situation, before I could possibly stop him for this purpose.

The grounds upon which I have been convicted are these:--That notes were found in De Berenger's possession which had been changed for others, that had once been in mine. That De Berenger came to my house after returning from his expedition; and that my account of what passed at this visit is contradicted by evidence.

The first ground has been clearly explained away; it amounts to nothing more than that which may happen to any man who has money transactions. Mr. Butt voluntarily made purchases and sales of stock for me, and having received a small loan of money from him, I repaid him with bank notes which he used for his own purposes. He says that he exchanged these notes, and that a part of the notes which he received in exchange he paid to Mr. Cochrane Johnstone, who states, that he gave them to De Berenger in payment of some drawings; but with this story, whether true or false, I have no manner of concern, and consequently no wish to discuss it. In what way soever the notes which were received in exchange for mine reached De Berenger, I can only say, that mine were given to Mr. Butt in discharge of a _bonâ fide_ debt; and I have no knowledge whatever of the uses to which he applied them.