Chapter 7

_Cross-examined by Mr. Richardson._

_Q._ Who gave you the letter that you speak of?

_A._ Mr. Wright.

_Q._ He gave you some letters to carry to Admiral Foley?

_A._ Yes.

_Q._ Where did he give it you?

_A._ I was at the fore-door upon the pony, and he came out to the door to me with the letter.

_Q._ To whom did you deliver it?

_A._ To the Admiral's Servant.

_Q._ At Deal?

_A._ Yes.

_Q._ What is her name?

_A._ I do not know, she took it up stairs to the Admiral directly?

_Q._ You did not see the Admiral?

_A._ I saw him that night.

_Q._ Do you mean before you left Deal?

_A._ Yes.

_Q._ This letter you delivered to some servant at the door?

_A._ Yes.

_Q._ And she carried it up stairs?

_A._ Yes.

_Re-examined by Mr. Gurney._

_Q._ After she had delivered it up stairs you saw the Admiral?

_A._ Yes.

_Admiral Thomas Foley sworn._

_Examined by Mr. Gurney._

_Q._ On the morning of Monday the 21st of February did you receive a letter by that boy?

_A._ A letter was brought to me that that boy brought to the house, and given to me, I was in bed.

_Mr. Park._ You did not receive it from the hand of that boy?

_A._ No, it was brought to me by my maid-servant at three o'clock in the morning, I was in bed.

_Q._ Did you get up immediately?

_A._ I read the letter in bed.

_Q._ Is that the letter? (_shewing a letter to the witness._)

_A._ This is the letter.

_Q._ Did you mark it before you parted with it?

_A._ I do not know whether I marked it or not.

_Q._ You know it again.

_A._ I inclosed it in a letter but I did not mark it.

_Q._ You inclosed it in a letter to Mr. Croker?

_A._ Yes a private letter to Mr. Croker.

_Q._ Is that the letter in which you inclosed it to Mr. Croker (_shewing a letter to the witness._)

_A._ This is the letter.

_Q._ That letter which I first shewed you is the letter you received from your maid servant?

_A._ It is.

_Q._ I suppose you rose directly?

_A._ I rose and sent for the boy into my dressing room.

_Q._ Did you communicate the news by telegraph to the admiralty that morning.

_A._ It was very late before I began, I will tell you what I did, I questioned the boy a good deal, for I must say I did not believe the letter.

_Q._ I must not ask you what passed between you and the boy, but whether you telegraphed the admiralty?

_A._ I did not, because the weather was thick, and I further say, the message I should have sent to the admiralty would have satisfied them--

_Q._ In fact you did not telegraph the admiralty because the weather was too thick?

_A._ I did not.

_Q._ When you sent for the boy up had you the letter in your hand?

_A._ I had, it was then three o'clock and dark, the telegraph would not move.

_Q._ I take for granted you had a candle?

_A._ Of course.

_Mr. Gurney._ We will now read the letter.

_Mr. Park._ I object, with great deference to his Lordship, to that letter being read, the evidence does not bring home that to the supposed officer, who is said to be Mr. De Berenger, it does not appear from any evidence to have come out of his hand it reaches this boy by the communication of Mr. Wright, who has not been called.

_Mr. Gurney._ I will ask the witness as to the reason of Mr. Wright's not being here--he is very ill, is not he?

_A._ He is extremely ill.

_Mr. Park._ My Lord, that does not alter the law of evidence, I submit there is a chasm in that chain that precludes their reading the letter as evidence against Mr. De Berenger. I do not mean to say that might not be supplied in the absence of Mr. Wright, but that letter lying before your Lordship's Officer is not identified to be the very paper which issued forth from this supposed person. It was delivered to this youth at the door of the inn by Wright, who is ill and absent from illness, he is not present to tell your Lordship from whom he received that, and there is a chasm in the chain of evidence, nor does the Admiral say he received the letter from this boy, he received it from a maid servant.

_Lord Ellenborough (to Admiral Foley.)_ When the boy came into your presence I suppose you asked him about this letter?

_A._ I did.

_Q._ Did he recognize that as the letter he had brought?

_A._ He did.

_Mr. Park._ With deference to your Lordship I should submit the letter was then open, the boy had delivered the letter shut to the maid servant, and I should have submitted, it is quite impossible that this youth could distinguish the letter, nobody doubts it is the letter, but that must be proved by legal evidence.

_Lord Ellenborough._ It is prima facie evidence. I do not speak now of the communication from De Berenger (supposing he is the person) of the letter to the boy. I do not say any thing upon that objection of yours, but that the letter which reached Admiral Foley was the letter the boy brought I think no human being can doubt.

_Mr. Park._ But still upon the original point, I submit it is not so proved as to be read in evidence.

_Lord Ellenborough._ Yes, you may resort to that if you please, the witness said he wanted an express horse to send to the Admiral at Deal, and then an express horse was got, and something was carried to the Admiral at Deal. That is the evidence as it stands.

_Mr. Serjeant Best._ So far the evidence goes my Lord, they now want to make the contents of that letter evidence, but before they can do that they must either prove that letter to be the hand-writing of Mr. De Berenger, or trace that Letter regularly from the hand of Mr. De Berenger: they have no such evidence, but all they say is, that Wright, the Landlord of the inn, took the letter out of the inn and delivered it to the boy at the door, the boy never having seen Mr. De Berenger, nor they having the smallest evidence whatever to connect the boy with him.

_Lord Ellenborough._ If there had been, the question would not have arisen.

_Mr. Serjeant Best._ I submit there is nothing to connect that letter with this person, and if it is the hand-writing of Mr. De Berenger I should think they would have no difficulty in proving that, there were other gentlemen waiting for information from France, as we hear from the witnesses, and if this letter is read Mr. De Berenger and the other Defendants may be made responsible for that letter which may have been written by one of those other persons.

_Lord Ellenborough._ I only want to get first all the facts relating to this letter. I cannot find any thing beyond that that he wanted an express horse to send to the Admiral at Deal.

_Mr. Gurney._ And that a sheet of paper was brought to him to write.

_Lord Ellenborough._ That he was preparing to write a letter and that he wanted an express horse to carry it, but as to the immediate identification of that letter you lose the intervening proof by the absence of Mr. Wright.

_Mr. Gurney._ My Lord, if there is any sort of difficulty about it, I will identify it at once by proving the hand-writing, but the Gentleman to prove that felt a delicacy in consequence of his being the Attorney for the prosecution.

_Germain Lavie, Esq. sworn._

_Examined by Mr. Gurney._

_Q._ You are the Attorney for the prosecution?

_A._ Yes.

_Q._ Did you see Mr. De Berenger in the custody of the messenger, in the course of the month of April?

_A._ Several times.

_Q._ In the course of those interviews did you see him write?

_A._ I did.

_Q._ Did you see him write a good deal?

_A._ Yes, a considerable deal, I saw a whole letter which he handed me across when he had written it, and it was given back and copied again, and for about an hour he was writing different things and handing backwards and forwards.

_Q._ Did you also see his papers in his writing desk?

_A._ I did.

_Q._ From the observation you made upon his writing, seeing him writing as you did at those several interviews, do you or do you not believe that to be his hand-writing?

_A._ I verily believe it to be his hand-writing from what I saw him write, but I am more impressed with its being his hand-writing, or at least the impression of its being his hand-writing is strengthened by what I saw of his writing.

_Q._ Do you believe, from what you saw him write, that that is his hand-writing.

_A._ Yes I do most solemnly, I did not see the letter till afterwards, and the moment I saw it, I concluded that to be his hand writing, and said so at the time.

_Mr. Park._ What you said at the time is no evidence, and you know that.

_Mr. Gurney._ Did your observation of it enable you to say you believed it to be his hand writing?

_A._ I have said so.

_Mr. Park._ You know as well as any man, that what you said to any body is no evidence.

_Lord Ellenborough._ It is a measure strongly indicative of his persuasion, it is an act accompanying his seeing it.

_Mr. Gurney._ Does Mr. De Berenger always write as large as that, or does he write a hand as large as that, and a smaller one also?

_A._ His usual hand is a good deal smaller than this.

_Q._ Did you find him sometimes writing larger than at other times?

_A._ Yes, there was apparently in his letters a larger hand in writing, I could positively swear that the man who wrote those I saw, wrote this, only one was larger than the other.

_Cross examined by Mr. Park._

_Q._ You told my learned Friend just now, that you formed your mind not only from what you saw him write, but from what you saw in his writing desk?

_A._ That confirmed my mind.

_Q._ Upon your oath, if you had not seen those writings in his Desk, would you have taken upon yourself to swear that it was his hand writing?

_A._ I think I should, but that makes it much stronger in my mind.

_Q._ I ask you again and will have a positive answer to the question, if you had never seen those other writings to which you have alluded, would you upon the mere circumstance of having seen him write, have taken upon you to swear that you believed that to be his hand writing?

_A._ I could have sworn it not quite so strongly, I could have sworn to my verily believing it, but I can now swear without the least doubt that it is his.

_Q._ That is because I have examined you perhaps?

_A._ No it is not.

_Q._ You verily believe that to be his writing, do you?

_A._ Yes.

_Q._ Look at that and tell me whether you believe that to be his hand writing, (_shewing a letter to the witness_) you need not open it, I have shut it for the purpose.

_A._ Yes I do, that is more like what I saw him write than this; I believe that to be his hand writing.

_Mr. Park._ I will put a letter A upon it; will you be so good as to look at that account, (_shewing it to the witness_) and tell me whether you believe that to be his hand writing.

_A._ I can only say this is the sort of hand he writes.

_Q._ Will you swear that is his hand writing.

_A._ That appears to me to be the same sort of hand.

_Mr. Park._ I will mark this B. They are very much alike.

_A._ They are more like the sized hand he writes in common than this, this is a larger hand.

_Mr. Serjeant Best._ Do you believe these to be Mr. De Berenger's hand writing? (_shewing three papers to the witness_).

_A._ They are all like his hand writing.

_Lord Ellenborough._ I think this should be kept for your case--I never saw any thing like this in my life.

_Mr. Gurney._ I take for granted these are meant to be produced in the defence?

_Lord Ellenborough._ You must be conscious that you are doing an irregular thing in tendering them now.

_Mr. Park._ I am not conscious my Lord, of doing an irregular thing.

_Lord Ellenborough._ I mean in tendering evidence at a time when it is not open to the Defendant to do so.

_Mr. Park._ But I may try the credit of the Witness by shewing him these.

_Lord Ellenborough._ There is no doubt that every Defendant has a right to give evidence in his turn, but at present we are upon the case of the prosecution.

_Mr. Park._ Have you not shewn that Letter to various other persons in order to procure their testimony to the hand writing?

_A._ No, I have not.

_Q._ You have not attempted it?

_A._ I was always conscious that I should be able to prove the Letter, but this morning finding Mr. Wright was not come up, I asked them if they had any body at hand that could prove it, so as to avoid being called myself; but I believe I must be called at last to the examination of the papers, so that it is not so important my being called sooner or later.

_Q._ Have you attempted to get other evidence?

_A._ I have not.

_Q._ Was Mr. Stevens applied to?

_A._ Before the Grand Jury, Mr. Stevens was not only applied to, but attended.--Mr. Lees also, of the Bank of England had ascertained before I had any thing to do with the business----

_Mr. Park._ That is not my question.

_Lord Ellenborough._ Put your question distinctly.

_Mr. Park._ I ask whether Mr. Lavie had not applied to various persons to swear to De Berenger's hand writing, and finding that they would not swear to it, then he determined to swear to it himself?

_A._ No, I have not.

_Mr. Gurney._ You say you did apply to Mr. Lees of the Bank, and Mr. Stevens?

_A._ Yes.

_Q._ Mr. Lees is the Inspector at the Bank?

_A._ He is.

_The Letter was read as follows:_

Dover, one o'clock, A. M. Feb. 21st, 1814.

Sir,

I have the honour to acquaint you, that the L'Aigle from Calais, Pierre Duquin, Master, has this moment landed me near Dover, to proceed to the capital with Dispatches of the happiest nature. I have pledged my honour that no harm shall come to the crew of L'Aigle; even with a Flag of truce they immediately stood for Sea. Should they be taken, I have to entreat you immediately to liberate them; my anxiety will not allow me to say more for your gratification, than that the Allies obtained a final victory, that Bonaparte was overtaken by a party of Sachen's Cossacks, who immediately slaid him, and divided his body between them; General Platoff saved Paris from being reduced to ashes, the Allied Sovereigns are there, and the White Cockade is universal, an immediate Peace is certain.--In the utmost haste I entreat your consideration, and I have the honour to be,

Sir, Your most obedient, humble Servant, R. Du BOURG, Lt. Col. & Aid de Camp to Lord Cathcart.

To the Honourable T. Foley Port Admiral, Deal, &c. &c. &c. &c.

_Mr. Serjeant Best._ Your Lordship will allow me to explain. I did not ask these questions of Mr. Lavie, with a view to offer hand writing against hand writing, but to prove these Papers that I mean to offer in evidence.

_Lord Ellenborough._ They should be proved in your case; I know by mutual consent they are sometimes proved by a Witness for the Prosecution, and I did not interfere in the first instance, but when I saw it multiplying, I thought it necessary to interfere.

_Thomas Dennis Sworn._

_Examined by Mr. Adolphus._

_Q._ Are you the driver of a post chaise in the service of Mr. Wright, at the Ship at Dover?

_A._ Yes.

_Q._ Early in the morning of the 21st of February, do you remember taking a fare from thence?

_A._ Yes, I drove the chaise.

_Q._ With how many horses?

_A._ Four.

_Q._ Where did you drive it to?

_A._ To Canterbury.

_Q._ To what Inn?

_A._ To the Fountain.

_Q._ What sort of person was it that you drove?

_A._ I cannot say.

_Q._ Was it one person, or more than one?

_A._ Only one.

_Q._ A man or a woman?

_A._ A man.

_Q._ Was it dark?

_A._ Yes.

_Q._ Could you see how he was dressed?

_A._ No.

_Q._ Had you the Wheel horse, or the leaders?

_A._ The leaders.

_Q._ When you put the person down whom you had driven, what did he give you?

_A._ He gave me a gold Napoleon.

_Q._ Did he give you only?

_A._ He gave us one a piece.

_Q._ What became of those Napoleons?

_A._ I sold mine.

_Q._ What did you get for it?

_A._ I got a one pound note for mine.

_Q._ Do you know the name of the lad at Canterbury that took him after you?

_A._ Yes.

_Q._ What is his name?

_A._ Broad.

_Q._ Who was the other?

_A._ Thomas Daly.

_Cross Examined by Mr. Richardson._

_Q._ Did you see Broad and Daly set off with the chaise from Canterbury?

_A._ Yes.

_Q._ It was a very dark night, was not it?

_A._ Yes.

_Q._ An hazy misty night?

_A._ Yes.

_Q._ A dark foggy night?

_A._ Yes.

_Q._ How do you remember the day this happened, from Dover you are in the habit of carrying persons in chaises and four to Canterbury frequently?

_A._ Yes.

_Q._ Day and night?

_A._ Yes.

_Q._ The carrying a gentleman in a chaise and four to Canterbury was nothing extraordinary?

_A._ No.

_Q._ How came you to remember this particular day?

_A._ I do not know.

_Q._ Upon your oath, might it not have been the 20th or the 22nd?

_A._ I cannot say indeed.

_Q._ Have you not heard other people say it was the 21st that this extraordinary affair happened?

_A._ No, I have not.

_Q._ You have not heard it talked of at all?

_A._ No.

_Q._ For aught you know it might be the 20th or the 22nd?

_A._ I cannot say.

_Re-examined by Mr. Adolphus._

_Q._ Do you remember what day of the week it was?

_A._ No.

_Q._ Do persons often give you a Napoleon for driving them?

_A._ No, I never had one before.

_Q._ You do not remember the day of the week?

_A._ No, I do not.

_Edward Broad sworn._

_Examined by Mr. Adolphus._

_Q._ Are you a driver of a chaise at the Fountain at Canterbury?

_A._ Yes.

_Q._ Do you remember the last witness coming to your house with a fare early in a morning in February.

_A._ Yes.

_Q._ Do you remember what day it was?

_A._ No, I do not.

_Q._ Do you remember what day of the week it was?

_A._ No, I do not.

_Q._ Was it one gentleman you particularly remember, or more?

_A._ One gentleman.

_Q._ From whence did he come?

_A._ From the Ship at Dover.

_Q._ Did you drive the wheel horses or the leaders?

_A._ The leaders.

_Q._ He came with four horses?

_A._ Yes.

_Q._ And went away with four?

_A._ Yes.

_Q._ Where did you drive him to?

_A._ To the Rose at Sittingbourn.

_Q._ Did you see him into a chaise there?

_A._ He did not get out--the chaise went forwards.

_Q._ With four horses or two?

_A._ With four.

_Q._ Who drove him, do you remember the boys names?

_A._ Michael Finnis was one, and James Wakefield.

_Q._ What present did he make you?

_A._ I did not receive any money from him; the other boy received the money.

_Q._ What had you for your share?

_Mr. Park._ That cannot be received unless he saw it given.

_Mr. Adolphus._ Did you see the money given?

_A._ I was very busy taking the horses off.

_Q._ What had you for your share?

_A._ A Napoleon.

_Cross-examined by Mr. Park._

_Q._ Have you long lived at the Fountain at Canterbury?

_A._ Yes.

_Q._ Have you long known Thomas Dennis?

_A._ Yes, some years.

_Q._ Have you never driven a fare he brought from Dover before?

_A._ Not particularly to my knowledge.

_Q._ Your knowledge has been called to this subject, but you do not know that you ever drove one that he brought before?

_A._ I might have driven one, but he brought this I know.

_Q._ You might have driven a fare brought by him from Dover?

_A._ I might, there are a great many boys from that Inn.

_Q._ And you have driven a single gentleman before?

_A._ Yes.

_Q._ And sometimes you have driven a chaise and four?

_A._ Yes.

_Re-examined by Mr. Adolphus._

_Q._ Did you ever receive a Napoleon before?

_Mr. Park._ He did not receive it from that person.

_Lord Ellenborough._ Did all these circumstances ever concur in any other case. Did you ever drive so early in the morning a single gentleman in a chaise and four, and receive a Napoleon from him?

_A._ No, I never did.

_Michael Finnis sworn._

_Examined by Mr. Adolphus._

_Q._ Are you a post-chaise driver at the Rose at Sittingbourn?

_A._ Yes.

_Q._ Do you remember the last witness bringing a gentleman in a post-chaise to your house?

_A._ Yes.

_Q._ In the month of February?

_A._ I did not take particular notice of the time.

_Q._ Was it early in the morning?

_A._ Yes.

_Q._ In a chaise and four?

_A._ Yes.

_Q._ At what o'clock in the morning might it be?

_A._ It might be somewhere about four, or between four and five I believe. I did not take particular notice, for I had no watch with me, it was dark.

_Q._ Where did you drive him to?

_A._ I drove him to the Crown at Rochester.

_Q._ That is Mr. Wright's house?

_A._ Yes.

_Q._ At what time in the morning might it be when you got to Rochester?

_A._ I cannot say, we were not much above an hour going with the gentleman--it might be an hour and ten minutes at the outside.

_Q._ Did the gentleman get out there?

_A._ Yes, he did.

_Q._ What present did he make you?

_A._ He gave us a Napoleon a piece; he gave me two, one for my fellow-servant and one for myself.

_Lord Ellenborough._ You had no opportunity of seeing his person?

_A._ I did just see him in the house when he paid me, but I did not take any particular notice of him.

_Lord Ellenborough._ He had no luggage, had he?

_A._ I do not know.

_Lord Ellenborough._ I thought he had changed chaise?

_Mr. Park._ No, he did not change chaise, only got out and in again.

_A Juryman._ Did you observe his dress?

_A._ He had a kind of a pepper and salt coat on, and a red coat under that I perceived, and a cap he had on.

_Mr. William Wright sworn._

_Examined by Mr. Adolphus._

_Q._ You keep the Crown Inn at Rochester?

_A._ Yes.

_Q._ Do you remember a chaise from Sittingbourn arriving at your house on the morning of the 21st of February?

_A._ Yes.

_Q._ A chaise and four?

_A._ Yes.

_Mr. Park._ I request that the questions may not be put so leading as to fix the day, for not one witness has proved it.

_Mr. Adolphus._ Have you any particular reason for remembering that day?

_A._ Yes.

_Q._ What sort of a person was it that came in the chaise?

_A._ It was a tall person rather thin than otherwise.

_Q._ Dressed how?

_A._ He was dressed in a pepper and salt great coat, with a scarlet coat under it, a Military scarlet coat; the upper coat was nearer the color of that coat I think than any thing I could state, (_pointing to the coat before produced_), the scarlet Military coat he had under that was very much trimmed with gold lace, it appeared by the candle light to be gold lace trimmed down the front; he had on also a cap, a Military cap with a broad gold lace round it--a band.

_Q._ What was the cap apparently made of?

_A._ The cap appeared to me to be made of cloth; I am not certain whether it was of cloth or fur, but it appeared to be nearly of the color of the great coat.

_Q._ Was there any thing particular about his Military coat?

_A._ On the Military coat was a star, and something suspended either from the neck or the button, I do not know which, something which he told me was some honor of a Military order of Russia.

_Q._ Was that thing at all like this? (_shewing the star to the witness._)

_A._ Yes, it had very much the appearance of that sort of thing.

_Q._ Did the person stay any time at your house?

_A._ I should suppose I was in conversation with him about ten minutes in the parlour.

_Lord Ellenborough._ At what time in the morning was this?

_A._ The time the chaise drove into the yard I suppose was about half-past 5 o'clock; it was not earlier than that, and I suppose very little later.

_Mr. Adolphus._ What were you and he doing during these ten minutes?

_A._ I was getting some chicken for him, and cutting that chicken up and some round of beef.

_Q._ In what room were you?

_A._ In our bar parlour; I took him there, the house not being open, that being warmer than the rest of the rooms.

_Q._ What passed in that conversation you had with him?

_A._ I was first of all called up by a post-boy of my brother's at Dover, he told me he was to go forward with some letter to London, and that there was a Messenger.

_Q._ You must not state what passed with your brother's boy, but in consequence of what that boy told you what did you say to the gentleman?