Chapter XXVIII: Appendix: XIII

TO THE ELECTORS OF WESTMINSTER.

King’s Bench, Aug. 10th, 1814.

GENTLEMEN,—It is fresh in your recollection that when Lord Ebrington,
contrary to my opinion, which was conveyed by letter to his Lordship,
and at my request read by him to the House, made his motion for a
remission of that part of the sentence which was to have been executed
this day, Lord Castlereagh was empowered to state that the Prince
Regent had already done that which it was the object of Lord
Ebrington’s motion to effect. You will also remember that Lord
Castlereagh, instead of immediately making his communication, and
preventing an unnecessary, and consequently improper discussion,
withheld it from the House for a considerable time, and thus afforded
the Attorney and Solicitor-General and himself an opportunity of
making a new and violent assault upon my character and conduct.
Although many of their arguments had been previously refuted, and
others were well answered at the time, yet it was impossible for those
honourable Members who entertained a favourable opinion of me to
answer every accusation which the Solicitor-General and others brought
forward by surprise. It remains, therefore, for me to offer some
observations in my own defence, in which my reason will appear for
having suffered some delay to occur in the execution of this important
duty.

In the course of the Solicitor-General’s speech he asserted that, in
my defence, I had mis-stated the circumstances of the transaction, and
had charged my solicitors with a gross dereliction of duty. I shall
show that I have neither mis-stated circumstances nor made any
unfounded accusation. He further asserted that he would take upon
himself to say that the brief had been drawn up from my own
instructions. The fact is, I have never denied that I gave
instructions for the brief. It is true, however, that I gave no
specific instructions to counsel, and attended no consultation; but it
is obvious that without some instructions or some information from me
to my solicitors there could have been no brief at all. My solicitors
themselves applied to me for written instructions, and I, of course,
furnished them with such particulars as occurred to me on the subject,
which are written on one sheet of paper, and might have been written
on one page. This paper is indorsed by my solicitors, “Lord Cochrane’s
Minutes of Case,” and may be seen in my possession.[119]

-----

Footnote 119:

It was discovered by His Majesty’s law officers that these few
hints, or “Minutes of Case,” given to my solicitors, at their own
solicitation, preparatory to drawing the brief, furnish a
contradiction to my assertion in the House, that _I gave no
instructions to counsel_. I was desirous of giving these learned
gentlemen the full benefit of the discovery by making them public,
when I published this Address to the Electors of Westminster, but
was prevented by a suggestion that the Address, with the other
important documents annexed, were already too long for a
communication to the newspapers; and so the editor of one of those
prints appears to have thought, for he omitted two very important
and inoffensive paragraphs. As the same reasons no longer exist, I
insert the “Minutes of Case” between the Address and the questions
to the solicitors.

-----

I apprehend that it was the duty of my solicitors to have sent me a
copy of the brief, which, however, they did not; and I repeat that,
previous to the trial, I never read it. It appears that they
particularly called my attention to an unimportant circumstance which
they had inserted in the brief, or the examinations attached, in
consequence of an erroneous communication from my servant, who had
confounded the circumstances of two different occurrences.[120] This
was the “one particular” which the Solicitor-General says that I
myself corrected. I admitted that this error was expunged by my
authority, and opposite the four lines which contained it, is written,
“Read this to Lord Cochrane,” which I think is an argument that the
greater part of the brief was not read to me; particularly as there
are twelve lines expunged in another place, opposite which my name
does not appear. My solicitors, however, assert, that though I did not
read the brief myself, they read the greater part of it to me; and on
their assertion I will admit that they did so, though I have no
recollection of the fact. But if it could be shown that they drew my
attention to every line of the brief, except only to that one most
important point, the description of De Berenger’s dress, which
immediately follows the four lines expunged, I still think that they
were guilty of very reprehensible negligence. In my affidavit, which
was before them, and was introduced into the brief, the coat worn by
De Berenger is sworn to have been _green_; and in the examinations
attached to the brief it is stated to have been _red_. It is
impossible that this most important difference could have escaped
their observation, and yet it is true that they never called my
attention to it. I may affirm, without fear of being again
contradicted, that I did not know that the dress of De Berenger, which
I had sworn to be green, was in any part of the brief, much less in
the examinations of my servants, described to be red; because it is
impossible, unless I had been absolutely insane, that I should not
only have been satisfied with a brief which authorised my counsel to
contradict my own affidavit, but have been anxious to send my servants
into court to give evidence against me.

-----

Footnote 120:

See this explained, in the answer to an anonymous letter, at the
end.

-----

If my solicitors actually read this part of the brief to me, it was
obvious that I was not giving that attention which a man conscious of
guilt naturally would have given. The word “RED,” if I had heard it,
must have instantly excited my particular notice. But “if the
difference between red and green escaped my observation,” what did my
solicitors “think”[121] of it? My accusers chiefly depended for my
conviction on proving that De Berenger appeared before me in the red
coat in which he committed the fraud. Is it possible that one of my
solicitors should have read it to me and not have said, “You observe,
Lord Cochrane, that this is contradictory to your affidavit?” To have
read it to me without a pause, and have suffered it to pass without
observation, is, I think, as negligent as not to have read it at all;
and is wholly irreconcileable with the assertion of Mr. Abercrombie,
that both parts of the brief were read over to me with the utmost
care.

-----

Footnote 121:

In more than one account of Lord Ellenborough’s charge, his Lordship
was represented to have said, “If the difference between red and
green escaped Lord Cochrane’s observation, what did he think of the
star and medallion?”

-----

If, in my defence in the House of Commons, I did not state the manner
in which I apprehend the difference between the brief and the
affidavit originated, it was because I could not have stated it
without throwing the more blame on my solicitors than I felt inclined
to do. I have been challenged by the Attorney-General to unseal the
lips of my solicitors and counsel. My solicitors, however, did not
wait for me to unseal their lips, as is evident by what is called the
counter-statement, with which they thought proper to furnish Mr.
Abercrombie and others; and I think it rather unreasonable to require
me to unseal the lips of my counsel to qualify them to give evidence
against me, when I could not succeed in unsealing their lips on the
trial to speak one word in my behalf. My own counsel, Mr. Topping and
Mr. Scarlett, whom I fully expected would have advocated my cause,
never spoke in my defence. In saying this, however, I cast no blame on
those gentlemen, because I have no doubt that, under the circumstances
then known to them, they acted as they thought best. Neither do I mean
to blame Mr. Serjeant Best (the counsel for Mr. Johnstone), who,
contrary to my expectation and direction, defended my cause in
conjunction with that of his own client. He made as able a speech as
any advocate could have done, with the information he possessed, and
under his then circumstances; but he intimated at the time, and
afterwards authorised me to assert, that he was not able to do justice
to the cause; and it is a just ground of complaint, that after Mr.
Serjeant Best had been exhausted by fifteen hours’ close attention and
confinement, he was not allowed a few hours to recover himself and
prepare for the defence.

To return: I do, however, accept the daring of the Attorney-General,
and freely release my solicitors and counsel from every obligation of
secresy.[122] I might perhaps have done this sooner, but the delay has
not been occasioned by any doubt in my mind as to the propriety of the
step, or fear of the consequences. I thought, however, after the
statement which has been circulated by my solicitors, that it was my
duty, in the first place, to put to them certain questions, which I
was not aware would have occasioned much delay; but after a lapse of
nearly a fortnight, they wrote to inform me, that they thought it
would be improper to answer those questions. I now lay them before the
public.

-----

Footnote 122:

I have not learnt that any of these gentlemen have made any
disclosures in consequence of this release.

-----

I particularly authorise the counsel employed for the defence, to
state their reasons for determining to defend me conjointly with Mr.
Johnstone, contrary to the opinion of Mr. Adam expressed on the 6th of
May, contrary to their own opinion expressed on the 24th of May, and
contrary to my opinion and direction expressed on the 29th of May; and
I also particularly authorise them to assign the reason for their
opinion, that no witnesses ought to be examined on my part[123]; and
especially their reasons for not examining my servants on the subject
of De Berenger’s dress, notwithstanding my earnest desire to have them
examined. I am also willing, nay, I am anxious, that Mr. Serjeant Best
should state, whether, when he admitted that the coat was red, and not
green, he did not imagine that I had sworn falsely by design? I know
that in his speech he attributed my description of the coat to error
only, but I am anxious to know whether he did so from his feelings as
a man or his sense of duty as an advocate? Until I am better informed,
I shall incline to the opinion that he was actuated by the latter
feeling only; because, if he really imagined that he had to defend an
innocent man, I do think that he would not, without previously
communicating with me on the subject, have had recourse to the
dangerous expedient of admitting that to be _red_ which I have sworn
to be _green_, however embarrassed he might have been by the confusion
of his brief, or exhausted by the fatigue and long confinement which
he had undergone.

-----

Footnote 123:

From an item in my solicitor’s bill, dated June 6th, only two days
before the trial, I extract the following: “Attending a consultation
at Mr. Serjeant Best’s chambers, when your case was fully
considered, and all the counsel were decidedly of opinion that you
must be defended jointly with the other defendants; and the counsel
recommended your servants being in attendance on the trial, although
they still remained of opinion that neither they nor any other
witness ought to be examined on your part.” In a subsequent item,
dated June 7th, the day before the trial, I am represented to have
acquiesced; not, however, in the non-examination of my witness, but
in the _joint defence_. It appears, however, that I held out to the
last; and if I did acquiesce, it was then high time to do so,
otherwise, in all probability, I should not have been defended at
all.

-----

I stated in the House of Commons that I gave no instructions to
counsel, and attended no consultation. I now see the folly of this
negligence; for if I had personally attended to my interests, and
conferred with my advocates on the subject, I have no doubt that I
should have fully convinced them of my innocence. I believe that,
subsequent to the trial, there is not a single individual with whom I
have conferred on the subject who has not left me with that
impression.

To come now to the manner in which the error in the brief originated,
I have no hesitation in acknowledging that I am at issue with my
solicitors on that point. Their account is, that two of my servants,
whom I had sent to their office to be examined as to the evidence they
could give on the trial, admitted that De Berenger wore a _red_ coat
with a green collar. My servants, on the contrary, assure me that they
did not, and could not, admit that it was a red coat; because, when
they saw De Berenger, he wore a great-coat buttoned up, and they
neither saw the body nor the skirts of the under coat; but the collar,
and so much of the breast as they saw, were green: but they admit,
that on being questioned by my solicitors, whether they could swear
that it was not a red coat; they confessed that they could not, and
admitted that it might be red, and that the green which they saw might
be green facings to a military coat: but they have constantly declared
that no part which they saw was red, and they deny that they ever
admitted that they saw any red.

My solicitors were in possession of their previous affidavits,
describing De Berenger to have worn a grey great-coat buttoned up, and
a coat with a green collar underneath. I shall not deny that my
solicitors considered the admissions of the servants to amount to an
acknowledgment that the coat was red; but I shall ever believe that
such admissions actually went no further than that, since they did not
see the body of the coat, it might, for aught they knew, be red—and
possibly, that they supposed it was red, because the wearer having a
sword and military cap, they conceived him to be an army officer. The
description which my solicitors introduced into the brief, in
consequence of this examination, namely, a red coat with a green
collar, neither accords with my description nor with the coat actually
worn by De Berenger on his way from Dover, which, as proved by the
witnesses on the trial, was either wholly scarlet, or turned up with
yellow.

If I had been a party to the fraud, and had sworn falsely as to the
colour of the coat, I doubtless might also have been wicked enough to
have endeavoured to suborn the servants to perjure themselves in my
behalf; but I should hardly have ventured to send them to my
solicitors to be examined on the subject, without previously
instructing them myself: and it can hardly be supposed, that if they
had been on their guard from any previous instructions of mine, that
my solicitors, in the common course of examination, would have
obtained from them any evidence which militated against my own
statement. I should naturally, too, have felt some anxiety to know the
result of their examination; yet the truth is, that I never asked them
a single question on their return from the solicitor’s office. Indeed,
if I had questioned them as narrowly as one may suppose a guilty man
who had sent his servants on a guilty errand of so much danger and
importance would have questioned them, I should in all probability
have discovered whether they had or had not executed that errand to my
satisfaction. At all events, I should have been anxious to know the
result of their examination as entered in the brief; and if it be true
that it was actually read to me by my solicitor, I must, under such
circumstances, have lent too attentive an ear to have suffered the
ruinous word _red_ to have escaped my observation. I must, too, have
shown certain symptoms of uneasiness on hearing that word, which could
not have escaped the observation of the reader, particularly as the
contradiction between that word and my oath must have been present to
his mind. And lastly, with the knowledge that the brief contained a
flat and fatal contradiction to my own affidavit out of the mouths of
my own servants, I should hardly have suffered it to have gone to my
counsel in that state; and then have pressed, in the way in which I
did press, to have those servants examined at the trial.

How my solicitors could admit so fatal a contradiction into the brief,
without drawing my attention to it immediately by letter, it is for
them to explain; yet they admit that they never wrote to me on the
subject. They very quietly, however, inserted it, and let it remain in
the brief until I should happen to discover it; which, as I have
pretty clearly proved, never did happen previous to the trial. It was
on the second day of the trial, and not before, that, to my very great
surprise, I discovered in a newspaper the admission of my counsel in
contradiction to my affidavit. “Yet,” says the Attorney-General,
“there was no mistake and no surprise: if there had, the Judges would
have dispensed with their rule, and granted a new trial: but, no!
there was nothing of that sort here.”

In whatever way my solicitors took the examination of my servants on
the subject of De Berenger’s dress, it is indisputable that nothing
can justify their neglect in not immediately drawing my attention to
the difference between the result of that examination and the
statement in my own affidavit. “It never can be permitted,” said the
Solicitor-General, “that a person accused should try in the first
instance how far he could go without his own witnesses; and then,
should the result prove unfavourable, how far he could go with them.”
How unjust this observation is, as applied to me, is well known to my
solicitors—they well know how anxious I was to have my witnesses
brought forward _in the first instance_. Those witnesses would and
could conscientiously have sworn to the green collar, which would have
sufficiently corroborated the description in my affidavit, as it never
was pretended that De Berenger wore a green collar to his scarlet
coat.

It was asked by the Attorney-General “if the servants could have
confirmed the affidavit, where was the advocate who could have been
stupid enough to hesitate to produce them?” It is possible, however,
that advocates may be prejudiced, may be mistaken, and may be misled
by their brief.[124]

-----

Footnote 124:

It is also possible that they may be compelled to attempt the
exercise of their duty when incapacitated by faintness and fatigue.

-----

I hope that it will now appear to be satisfactorily proved, not only
that I did not see De Berenger in his scarlet coat, but that he did
not come to my door, nor _even enter the hackney-coach in that
dress_.—(See the annexed affidavits.)

In reply to the Solicitor-General’s observation, that I had sought to
establish my own innocence by recrimination upon the Judge and Jury, I
shall at present merely ask the learned gentleman whether he is of
opinion that a like sentence for a like offence would have been passed
on any nobleman or member of Parliament on his side of the House?
Would a punishment which, according to the unfortunate admission of
the Attorney-General, is calculated “to bow down the head with
humiliation ever after,” together with fine and imprisonment, and the
privation of every office and honour, have been thought little enough
for a ministerial defendant on such a charge? And if the candour of
the learned gentleman impels him to answer in the negative, is it not
fair to inquire whether he thinks that such an one would even have
been convicted on similar evidence? The Attorney-General observed,
“that he was glad that the period had arrived when the trial could be
read at length, and thus do away the effect of those imperfect
statements which misled the public mind.” Reserving my remarks on the
trial for a future opportunity, I shall at present just ask the
Attorney-General how it comes that he, who is so anxious that the
public mind should not be misled, should have made the unfounded
assertion, that I not only pocketed a large sum of money by the fraud,
but put off absolute ruin? Such an assertion is the more inexcusable
in the Attorney-General, who had every facility of obtaining more
correct information. His own broker could have told him that the
Omnium which I possessed on the 19th of February, when the fraud must
have been in agitation, could have been sold on that day at 27⅝. The
average cost was 27⅞; so that the whole loss on the 139,000_l._
Omnium, if sold on that day, would not have amounted to above 400_l._
And when it is considered that the result of my previous speculations
was a gain of 4,200_l._ received, and 830_l._ in the hands of my
broker, how does the Attorney-General make it out that I had so
embarrassed myself by such speculations, as to have no other than
fraudulent means of escaping absolute ruin? Besides, I can assure the
learned gentleman, if he is not already apprised of the fact, that if
I had held the Omnium till the 1st, 3rd, or 4th of March, I should
have sold it at a profit; and if I had held it till the settling-day,
when I must of necessity have sold it, I should not have lost half the
sum I had previously gained. But if upon the whole I had lost a few
hundreds, or even thousands, how would the Attorney-General be
justified in inferring my absolute ruin? It is well known that I had
been more successful at sea than almost any other officer of my
standing in the navy, and that I have constantly lived, not only
within my income, but at less expense than almost any other person of
my rank in society. On what grounds, therefore, is the
Attorney-General warranted in representing me as a person in such
desperate circumstances as to be obliged to have recourse to the
lowest knavery in order to avert absolute ruin?

With respect to the other assertion, that I pocketed a large sum of
money in consequence of the transactions of the 21st of February, did
not the learned lawyer know that the Stock Exchange Committee had
seized not only 1,700_l._ of my money, which was my actual profit from
that day’s sale, but also a further sum of 770_l._ to answer their
exaggerated calculation of that profit? and that the aforementioned
sum of 830_l._ was also lost through the proceedings of that
Committee? If the learned gentleman knew nothing of all this, I can
only observe, that he ought to have informed himself on the subject
before he made such statements in the House of Commons.

I have the honour to be,
Gentlemen, with great respect,
Your most obedient and faithful servant,
COCHRANE.

------------------------------------