Chapter 43

The question which is next material to be adverted to is, how far any of these circumstances implicate the defendants who are found guilty on this record. I have stated the circumstances with respect to the minor actors in this conspiracy. De Berenger, who was the actor and the propagator of the false rumours from Dover to London, and the other persons who were the propagators of these false rumours from Northfleet to London. It is singular that De Berenger should instantly drive, in the dress in which he travelled from Dover to London, to the house of my Lord Cochrane; should instantly send and have an interview with my Lord Cochrane; and that in the presence and with the knowledge of my Lord Cochrane, before he left his house, he should change that dress in which he had arrived, and should go away in a dress of my Lord Cochrane's: those are things which could not happen by accident; and the court see that they have not been accounted for in any satisfactory manner; and they certainly were not accounted for in a satisfactory manner to the minds of the jury, who have drawn the conclusion of guilt, by any explanation which was then given, either by word or upon oath. The manner in which it is attempted to be accounted for is, that De Berenger, who was but slightly known to my Lord Cochrane, had come at that time to him upon some other business; that as to the note which he sent to my Lord Cochrane, and which has not been produced, my Lord Cochrane at the time did not clearly perceive by whom it was signed, or from whom it came, and that he went home immediately upon receiving it, in expectation that it might be from an officer coming from abroad, bringing him an account of the health of a brother, who at that time, or shortly before, had been labouring under a dangerous illness; that note which was sent has not been produced, and no satisfactory evidence has been stated, either before the jury or since, upon the application which was made to the court for a new trial, to fix precisely the time when any account had been received by my Lord Cochrane of the illness of this brother, or holding out to him any expectation at what time, and by what means, he was likely to hear further accounts of him. If any such letter had been received, if it had come by a private hand, the person who brought it might have been called to show the information which he had received; if it had been brought by a ship, or by post, the mark on the direction and the envelope of that letter, would have given some explanation of it, but no such explanation has been held out either to the jury at the trial, or to the court since, on the opportunity which was afforded my Lord Cochrane yesterday of stating the grounds upon which he wished to have a new trial.

There is another circumstance in evidence which I have not yet adverted to, and it is this, it was proved in evidence, and I will not go through the particulars, that shortly before this 21st of February, namely, on the 16th of February, a broker, of the name of Smallbone, had drawn a bill on Jones, Loyd, and Co. in London, for the sum of 470_l._ 19_s._ 4_d._ payable to a number, upon which nothing arises, or to bearer; but that this bill, or check, was given to Lord Cochrane, so that it was in his hands; the money received for this check at the bankers, was proved in evidence to consist of particular bank notes; those bank notes were afterwards changed, and appear to have been changed industriously for other notes, by a person employed, I think by the defendant Butt, and part of the produce of this check had been employed by Lord Cochrane himself in the payment of a bill of a coal merchant of his, and a number of the small notes that had been produced by the change of some of the larger notes for which the check was changed, were traced to the hands of De Berenger himself; and many of them actually found in his possession, and in his trunk at the time he was shortly afterwards apprehended in a distant part of this kingdom; now this is a coincidence of circumstances which requires very satisfactorily to be accounted for, in order to raise a doubt in the mind of any one that there was a connection with respect to this transaction, and an intimate connection between the parties charged upon this indictment, I mean particularly the defendant, my Lord Cochrane, the defendant Butt, and the defendant De Berenger. Where we find that it is to the house of my Lord Cochrane that he comes immediately after having acted this part in spreading this rumour between Dover and London, and where the very notes that are found upon the person of De Berenger, before in insolvent circumstances, are part of the produce of that very draft which had actually been traced to the hand of Lord Cochrane, and by the intervention of another of the defendants, Butt, had likewise, I think, been through the hands of Mr. Cochrane Johnstone paid to this very De Berenger, and found in his possession when he had absconded, and was going by another name in a distant part of this country.

With respect to the other part of the transaction, when we find who were the persons who benefited by this plan, which has been so put into execution; that the persons who were connected together in speculating in the funds up to the very period of the 21st, and were then the holders of very considerable sums, or contracts for those sums, down to the morning of the 21st, got rid of all of them in the course of the 21st, and when those circumstances of connection which I have adverted to have been so clearly made out, and no satisfactory account given, nor any reason given to expect that a satisfactory account would be given, if a further opportunity of investigating it should have been afforded, how can the court come to any other conclusion if they have to exercise their judgment upon the fact, but the conclusion to which the jury have come, namely, that the defendants are guilty; that it was a conspiracy ingeniously and cunningly devised, extensive in its operation, most mischievous in its effect, and contrived for the wicked and the fraudulent purpose of enriching some few individuals at the expense of others, who might be induced to sell, and to buy property on that day, or who might be in a situation to be obliged to do it, which was the case with the suitors of the court of Chancery.

The offence of conspiracy is in itself always viewed in the eye of the law as a heinous offence; and where a number of persons connect themselves together in order to carry into execution a plan which one alone cannot carry into execution, and where that is done with the evident intention of fraud, to put money into the pockets of certain persons, and by that means to defraud others, such an offence is and always has been considered in the eye of the law as an infamous offence, and calling upon the court who are to administer the justice of the country for a punishment, as far as they can inflict it, proportionate to the infamy of the crime.

It is with pain that the court in passing sentence upon the defendants have to advert to those circumstances, which, applying to particular persons, appear to aggravate the guilt of the offence of which they have been convicted; it is painful for the court to observe, that among those who stand for judgment there should be any person whose situation from rank, connections, education, and every thing held honourable among mankind, ought to have felt himself so far above being connected with persons of the description with whom he has been connected, and mixing in traffic with which he has been mixed, which independently of the crime of which he has been convicted is disgraceful and disreputable to any man, I mean gambling in the funds to the amount and to the extent to which it is proved; it is painful for the court to have to animadvert upon such an offence in such a subject; and more painful to feel, that in the exercise of their duty they are bound to say, that the greater opportunity which a defendant had of knowing his duty, and the higher he felt in rank and in situation, and the less temptation he ought to have felt to have offended the laws of his country, in this respect the heavier falls the weight of guilt upon him.

Another observation which one cannot fail to make in the present instance, is, that in the course of this inquiry, certainly with respect to the defence made by the defendant De Berenger, one cannot find any circumstances of which the court can lay hold, as a ground upon which they can mitigate the offence which the law calls for to be inflicted upon that defendant, because after a weight of evidence not depending upon the testimony of two, three, four or six persons, as to the identity of the man and his clothes, an attempt was made at the trial to delude the jury and the court, by inducing them to believe that he was at another place at the time, and that it was not De Berenger who had appeared at Dover; that it was not De Berenger who had travelled from Dover to London in the way described; and that it was not De Berenger who had been landed at last in the house of Lord Cochrane.

Though the court could not consistently with its rules hear the application for a new trial made by my Lord Cochrane within the first four days of the term, yet still it was willing to afford the opportunity at any time to state circumstances which might operate upon the mind of the court to show that the verdict had been improperly come to, and that the evidence did not justify it: but what was the attempt upon the part of that defendant, my Lord Cochrane, to show that he ought to have had a new trial?--that certain witnesses who were present at the time of the trial had not been examined; and that some of those who had been examined had not been examined to facts which it was wished they should be examined to; and what were those facts? why they went to show that at the time De Berenger was at the house of my Lord Cochrane he appeared, not in a red uniform, as was described by so many witnesses, and among others, the person who landed him at that house, but that he had on the green uniform, in which, from the situation he had been in, in a rifle volunteer corps he had been in the habit of appearing. It was probably a very prudent exercise of discretion in those who had the conduct of the case of that defendant at the trial, not to attempt to call servants at the house for the purpose of disproving a fact which had been proved by so many witnesses; and it is impossible to conceive that any change of dress could have taken place during that short interval, from the time at which he had got out of the coach, to the period when he had appeared before Lord Cochrane; or what could be the motive for changing his dress, if he then had on the uniform of any corps of volunteers in this town.

These are the observations which naturally present themselves as arising out of the detail of the evidence which has been read. It cannot be necessary to expatiate at all upon the nature of the offence. It is a conspiracy of the greatest magnitude, and of the most prejudicial effect to the community; it is conceived in mischief, and a great deal of deliberation practised previously to its being put into execution. In this respect an offence of this description differs from most of the offences which come under the cognizance of a court of criminal jurisdiction. In many cases offenders have been led to transgress the law by a suggestion of the moment; by a temptation, which, as it has been urged sometimes at the bar, human nature could not resist; but in the present instance it has been deliberately undertaken; great contrivance, and great previous consideration, have been used for the purpose of laying the plan and procuring the actors who were to bear their different parts of it; and the whole object of it founded in avarice on the part of some, and the hope of gain for acting that part which the others took in this transaction, not for their own immediate emolument, except so far as they were to receive the wages of their iniquity.

The court has deliberated upon the case, and the court cannot, in this instance, feel itself justified in measuring out justice to one by a different measure from that in which justice would be measured out to others; the sentence therefore of the court upon you, the several defendants now upon the floor, is, That you, Sir Thomas Cochrane, otherwise called Lord Cochrane, and you Richard Gathorne Butt, do severally pay to the King a fine of one thousand pounds each; that you, John Peter Holloway, the third person who was to be benefited by this conspiracy, do pay to the King a fine of five hundred pounds; that all you the six several defendants, Charles Random De Berenger, Sir Thomas Cochrane, commonly called Lord Cochrane, Richard Gathorne Butt, Ralph Sandom, John Peter Holloway, and Henry Lyte, be severally imprisoned in the custody of the Marshal of the Marshalsea of our Lord the King for twelve calendar months; and that during that period you, Charles Random Be Berenger, you, Sir Thomas Cochrane, otherwise called Lord Cochrane, and you, Richard Gathorne Butt, be severally set in and upon the pillory, opposite the Royal Exchange in the City of London, for one hour, between the hours of twelve at noon and two in the afternoon; and that you be now severally committed to the custody of the Marshal of the Marshalsea, in execution of this sentence, and be further imprisoned until your several fines be paid.

TABLE OF CONTENTS.

Page. The Indictment 3 The Counsel for the Crown and for the Defendants 14 The Jury 15 MR. GURNEY'S Speech in opening the Case 15 Evidence for the Prosecution 58 John Marsh's Examination 58 Thomas Worthington Gourley's Examination 66 Eliott Edis's Examination 71 Mr. William St. John's Examination 76 William Ions's Examination 85 Admiral Thomas Foley's Examination 86 Mr. Germain Lavie's Examination 90 Letter signed R. Du Bourg, addressed to Admiral Foley, dated Deal, February 21, 1814 94 Thomas Dennis's Examination 95 Edward Broad's Examination 97 Michael Finnis's Examination 99 Mr. William Wright's Examination 100 James Overy's Examination 106 William Tozer's Examination 108 Thomas Shilling's Examination 110 William Bartholemew's Examination 118 Richard Barwick's Examination 120 William Crane's Examination 122 George Odell's Examination 125 Mr. Francis Baily's Examination 127 Mr. Robert Watson Wade's Examination 127 Simeon Kensington Solomon's Examination 128 Abigail Davidson's Examination 132 Mr. Germain Lavie's further Examination 137 Abigail Davidson's further Examination 138 Launcelot Davidson's Examination 138 Thomas Vinn's Examination 141 Letter signed Alexr M'Rae, addressed to Mr. Vinn, dated 14 February 1814 144 Sarah Alexander's Examination 147 Mr. Philip Foxall's Examination 152 Letter signed R. Sandom, addressed Mr. Foxall, dated Monday morning 153 Foxall Baldry's Examination 155 Mr. Francis Baily's further Examination 157 Mr. Joseph Fearn's Examination 160 Mr. Robert Hichen's Examination 174 Mr. William Smallbone's Examination 176 Mr. Malcolm Richardson's Examination 181 Mr. Francis Baily's Examination 183 General Statement of Omnium and Consols 184 Accounts of A. C. Johnstone, Lord Cochrane, and R. G. Butt _to be placed opposite_ 184 Mr. James Wetenall's Examination 188 Mr. Charles Addis's Examination 192 Letter signed A. Cochrane Johnstone, addressed "Mr. Addis" 193 Mr. James Pilliner's Examination 194 Mr. James Steers's Examination 196 Mr. John Wright's Examination 197 Mr. Malcolm Richardson's further Examination 200 Affidavit made by Lord Cochrane, dated 11 March 1814 201 Mr. James Le Marchant's Examination 205 The Hon. Alexander Murray's Examination 213 William Carling's Examination 218 Mr. Barnard Broochooft's Examination 220 Mr. Joseph Wood's Examination 221 Extract from De Berenger's Memorandum-book 224 Mr. Joseph Fearn's further Examination 229 Mr. Joseph Brumfield's Examination 229 Mr. William Smallbone's further Examination 230 Check on Messrs. Jones, Loyd & Co. dated 10 Feb. 1814 231 Edward Wharmby's Examination 231 Benjamin Lance's Examination 231 Mr. Joseph Fearn's further Examination 232 Letter signed A. Cochrane Johnstone, addressed to the Chairman of the Committee of the Stock Exchange, dated 12 April 1814 232 Letter signed A. M'Rae, addressed to the Hon. Cochrane Johnstone, dated 12 April 1814 233 Letter signed A. Cochrane Johnstone, addressed to Mr. Charles Laurence, dated 18 April 1814 233 Letter from the same to the same, dated 18 April 1814 234 Edward Wharmby's further Examination 235 Mr. Thomas Parker's Examination 236 Benjamin Lance's further Examination 236 John Bilson's Examination 240 Hilary Miller's Examination 242 Thomas Christmas's Examination 242 Mr. Joseph Fearn's further Examination 244 John Bilson and Thomas Northover's Examination 244 Mr. Joseph Fearn's further Examination 244 Mr. Bishop Bramley's Examination 245 John Bilson and Thomas Northover's further Examination 247 Benjamin Lance's further Examination 247 John Isherwood's Examination 247 Mr. John Seeks's Examination 248 Mr. Germain Lavie's further Examination 249 Benjamin Bray's Examination 250 Mr. Pattesall's Examination 253 Mr. SERJEANT BEST'S Speech 256 Mr. PARK'S Speech 292 Mr. SERJEANT PELL'S Speech 319

_Thursday, 9 June 1814._

Evidence for the Defendants 334 Letter signed Js. Le Marchant, addressed to Lord Cochrane, dated 6 April 1814 334 Letter from the same to the same, dated 7 April 1814 335 Letter signed Cochrane, addressed Col. Le Marchant, dated 8th April 1814 336 Letter signed Js. Le Marchant, addressed to Lord Cochrane, dated 8th April 1814 336 James Le Marchant's statement of conversation with R. De Berenger 337 Lord Viscount Melville's Examination 340 Colonel Torrens's Examination 342 Henry Goulburn, Esq. M. P. Examination 344 William R. W. King's Examination 345 Mr. Bowering's Examination 347 Thomas Dewman's Examination 347 Mr. Gabriel Tahourdin's Examination 352 Letter signed A. Cochrane Johnstone, addressed to Mr. Tahourdin, dated 22 February 1814 356 Letter signed C. R. De Berenger, addressed to the honourable Cochrane Johnstone, dated 22 February 1814 357 Letter signed Gabriel Tahourdin, dated 23 February 1814 361 Receipt for £.50. signed C. R. De Berenger, dated 20 September 1813 363 Receipt for £.200. signed C. R. De Berenger, dated 28 February, 1814 364 Promissory Note for £.200. signed C. R. De Berenger, dated 26 February 1814 364 General Campbell's Examination 371 The Earl of Yarmouth's Examination 372 Captain Sir John Poo Beresford's Examination 377 James Stokes's Examination 378 William Smith's Examination 379 Ann Smith's Examination 392 John M'Guire's Examination 400 Mr. Thomas Hopper's Examination 407 ---- M'Guire's Examination 409 Henry Doyle Tragear's Examination 410 Mrs. Tragear's Examination 420 Isaac Donithorne's Examination 425 MR. GURNEY'S Reply 432 LORD ELLENBOROUGH'S summing up 448 The Verdict 531

_Tuesday, 14 June 1814._

Proceedings on Lord Cochrane's Application for a new Trial 532

_Monday, 20 June 1814._

Argument on Motion in arrest of Judgment (Mr. Serjeant Best) 535 (Mr. Park) 548 Judgment of the Court thereon (Lord Ellenborough) 550 (Mr. Justice Le Blanc) 551 (Mr. Justice Bayley) 552 (Mr. Justice Dampier) 553