Chapter XX: Part 20

"Sir Thomas Cochrane, commonly called Lord Cochrane, one of
the above named defendants, maketh oath and saith, That the
several facts and circumstances stated in his affidavit, sworn
on the eleventh day of March last, before Mr. Graham, the
Magistrate, are true; and this deponent further saith, that in
addition to the several facts and circumstances stated in his
said affidavit, he deposeth as follows, (that is to say); That
he had not directly nor indirectly any concern whatever in
the formation, or any knowledge of the existence of an
intention to form the plot charged in the indictment, or any
other scheme or design for affecting the public funds. That
the sale of the pretended omnium on the twenty-first day of
February, was made in pursuance of orders given to his broker
at the time of the purchase thereof, on or about the
fourteenth of that month, to sell the same whenever a profit
of one per cent. could be realized; and that those directions
were given, and the sale thereof took place without any
knowledge, information, hint or surmise on the part of this
deponent, of any concern or attempt whatever to alter the
price of the funds; and the said sale on the twenty-first took
place entirely without this deponent's knowledge. That when
this deponent returned home from Mr. King's manufactory, on
the twenty-first of February, which he did directly after the
receipt of a note, he fully expected to have met an officer
from abroad, with intelligence of his brother, who had by
letter to this deponent received on the Friday before,
communicated his being confined to his bed, and severely
afflicted by a dangerous illness, and about whom this deponent
was extremely anxious; but this deponent found Captain De
Berenger at his house, in a grey great coat, and a green
jacket. That this deponent never saw the defendants, Ralph
Sandom, Alexander M'Rae, John Peter Holloway, and Henry Lyte,
or any or either of them, nor ever had any communication or
correspondence with them, or any or either of them, directly
or indirectly; that this deponent, in pursuance of directions
from the Admiralty, proceeded to Chatham to join his Majesty's
ship "The Tonnant," to which he had been appointed on the
eighth day of February last; that the ship was then lying at
Chatham; that previous to the eighth day of February, this
deponent applied to the Admiralty for leave of absence, which
was refused until this deponent had joined the said ship, and
had removed her down to Long Reach; that this deponent in
pursuance of those directions removed the said ship from
Chatham to Long Reach; and after that was done, viz. on
Saturday the twelfth day of the said month, this deponent
wrote to the Admiralty, to apply for leave of absence for a
fortnight, for the purpose of lodging a specification for a
patent, as had been previously communicated by this deponent
to their Lordships; that leave of absence was accordingly
granted for fourteen days, commencing on the fourteenth of the
said month; that this deponent was engaged in London
respecting the said specification, till the twenty-eighth of
the said month, when the said specification was completed; and
this deponent left town about one o'clock on the morning of
the first day of March, and arrived at Chatham about day-light
on the same morning; that on the eighth or ninth of the same
month of March, this deponent received an intimation, that
placards were affixed in several of the streets, stating that
a pretended Colonel Du Bourg had gone to this deponent's house
in Green-street; that he was on board the said ship at Long
Reach, and in consequence went to Admiral Surrage, the Port
Admiral at Chatham, to obtain leave of absence, which was
granted previous to the receipt of the leave forwarded by the
Lords Commissioners of the Admiralty; this deponent arrived in
London on the tenth of that month, to the best of his belief;
and that after his arrival, he himself, conscious of his own
innocence, and fearing no consequences from a developement of
every part of his own conduct, and desiring only to rescue his
character from erroneous impressions made by
misrepresentations in the public prints, he without any
communication whatsoever with any other person, and without
any assistance, on the impulse of the moment prepared the
before-mentioned affidavit, which he swore before Mr. Graham,
the magistrate, on the eleventh; that at the time he swore
such affidavit, he had not seen or heard the contents of the
report published by the Committee of the Stock Exchange,
except partial extracts in the newspapers; that when this
deponent understood that a prosecution was to be instituted
against him, he wrote to Admiral Fleming, in whose service
Isaac Davis, formerly this deponent's servant, then was, under
cover to Admiral Bickerton, at Portsmouth, and that Admiral
Bickerton returned the letter, saying, that Admiral Fleming
had sailed for Gibraltar; that this deponent sent his
servants, Thomas Dewman, Elizabeth Busk, and Mary Turpin, on
the trial of this indictment, to prove that an officer came to
this deponent's house on the morning of the said twenty-first
of February, and to prove the dress that he came in, but that
the said Thomas Dewman only was called; and as this deponent
has been informed, he was not interrogated as to the dress in
which the said officer came to his house; and this deponent
further saith, that had the said witnesses been examined,
according to the directions of this deponent, and who were in
attendance on the Court for that express purpose, they would,
as he verily believes, have removed every unfavourable
conclusion respecting this deponent's conduct, drawn from the
supposed dress in which the said De Berenger appeared before
this deponent on the twenty-first of February, and on which
circumstance much stress was laid in the charge to the Jury,
the said De Berenger's dress being exactly as stated in this
deponent's former affidavit hereinbefore-mentioned; and this
deponent solemnly and positively denies, that he ever saw the
said De Berenger in a scarlet uniform, decorated by medal, or
other insignia, and he had not the least suspicion of the said
De Berenger being engaged in any plot respecting the funds,
but merely believed he wished, for the reasons stated in this
deponent's former affidavit, to go on board this deponent's
ship, with a view to obtain some military appointment in
America; and this deponent declined complying with his request
to send him on board his ship, without permission or an order
from the Lords of the Admiralty; and this deponent further
saith, that he was in no degree intimate with the said De
Berenger; that he had no personal knowledge of his private or
public character; that he never asked the said De Berenger to
his house, nor did he ever breakfast or dine with this
deponent therein on any occasion whatsoever; and further, this
deponent saith, that he hath been informed, and verily
believes, that the Jury who tried the said indictment, and the
Counsel for the defence, were so completely exhausted and worn
out by extreme fatigue, owing to the Court having continued
the trial without intermission for many hours beyond that time
which nature is capable of sustaining herself without
reflection and repose, that justice could not be done to this
deponent.

_Cochrane._"

Sworn in Court the
14th June 1814.

"In the King's Bench.

"The King _against_ Charles Random De Berenger, & others.

"Thomas Dewman, servant to Lord Cochrane, maketh Oath and
saith,----"

_Lord Ellenborough._ This was a person called as a witness on the trial; if the affidavit goes beyond what he then stated, or in contradiction to what he stated, it cannot be received.

_Lord Cochrane._ Would your Lordship permit me to explain the reason why he was not interrogated?

_Mr. Justice Bayley._ It is a settled rule, not to allow the affidavits of persons who might have been called upon the trial, much less of persons who were called.

_Lord Ellenborough._ And if any were not called, they were not called under the discretion of your Lordship. It would be a very dangerous thing, if persons whose evidence may have been discreetly kept back, should afterwards be admitted to come forward as witnesses.

_Mr. Dealtry._ The next is the affidavit of Sarah Busk.

_Lord Cochrane._ My humble hope is, that you will be pleased to grant a new trial, in order that these persons may have the opportunity of being examined: they were not called from an error in the brief, which (so little was I conscious of any participation in the fraud) I had not even read.

_Mr. Gurney._ My Lord, the Counsel for the defendant were not uninstructed, as to the evidence which these persons could give; because, annexed to the affidavit which your Lordship has stated, of Lord Cochrane, were the affidavits of all the servants, of the one who is not now in England, as well as of the three who are in England. They are all printed together in Mr. Butt's pamphlet, which was produced at the trial. Therefore the Counsel for the defendant were informed of every circumstance, and they might, if they had thought it would serve their client, have called all those persons as witnesses.

_Mr. Justice Le Blanc._ There is no rule better established, than that after trial we cannot receive the affidavits of persons who were called, or who might have been called as witnesses. Whatever might be the reason for keeping back their testimony, that the Court cannot hear.

[_The following Affidavit was read._]

"In the King's Bench.

"The King _against_ Charles Random De Berenger & others.

"The Honourable William Erskine Cochrane, Major in the
fifteenth regiment of dragoons, now residing in Portman-square
in the county of Middlesex, on his oath saith, That he was
seized with a violent and alarming illness on the first of
January one thousand eight hundred and fourteen, at Cambo in
the south of France; and that this deponent remained in a
state of dangerous illness until the eighteenth of the
following month. That early in February last he wrote to his
brother Lord Cochrane, to acquaint his Lordship with this
deponent's situation, as deponent had then very little hope of
recovery, and telling him that he had received a notification
that he would be ordered to England, where he should proceed,
if ever able to undertake the journey. And this deponent
further saith, that the annexed certificate was given to him
for the purpose of being laid officially before a board of
medical officers at Saint Jean de Luz, by the surgeon of this
deponent's regiment, and is in the said surgeon's
hand-writing.

_W. E. Cochrane._"

Sworn in Court,
this 14th day of June 1814.
By the Court.

"Statement of Major the Honourable William Cochrane's
Complaint. Monday, February 12, 1814.

"Was seized with the usual symptoms of fever on the 1st of
January, which was continued for the first three days; then
the remittent character developed itself. The evening paroxism
was severe every day, and he was all through much worse on the
third day than on the two preceding days. The treatment
consisted in keeping the bowels perfectly free and the skin
moist, and this was generally obtained by calomel and
antimonial powder combined, in the proportion of two grains,
and three every third hour, and an occasional purge of neutral
salts. When the bowels were well emptied, I frequently gave
saline draughts, which kept the skin moist and favourable for
the exhibition of bark, the use of which was commenced the
16th day. On the 23d he had a crisis, and went on very well
till the 1st of February, when he suffered a relapse, attended
with rather alarming symptoms. There was great determination
to the head, the eyes were suffused, great drowsiness, and a
tendency to comæ; however, these symptoms gave way in six
hours, in which time he was actively purged, the skin was made
moist, and a profuse perspiration kept up for twelve hours,
which left him perfectly tranquil and free from fever. From
this term I continued to give him small doses of calomel, till
his mouth was very slightly affected. He continued free from
fever from the morning of the 2d till the 7th; his appetite
good, his strength increasing, and every sign of health. On
that morning he had a second relapse, but by no means so
violent, though more embarrassing; he has not been well since,
and has suffered very much indeed. The treatment latterly has
been attention to the state of his bowels and diet. He has not
taken bark since his first relapse. I hope the change of air
and objects will serve him.

_Tho. Cartan_,
Surgeon, 15th Hussars."

_Lord Ellenborough._ This affidavit is not even material to shew, that Lord Cochrane was in possession of his brother's letter previous to the morning of the 21st of February, so as to account for a connexion existing in his mind between the note he on that morning received, and the state of his brother's health, which should induce him immediately on the receipt of it, to return home?

_Lord Cochrane._ I was not present at the trial, or those witnesses would have been examined.

_Lord Ellenborough._ But those witnesses would not have gone to this point, and your mind must have been drawn to it at the time you made your affidavit, when you came to mention your brother's illness?

_Lord Cochrane._ My brother's affidavit states, that he wrote to me early in the month, and I received his letter on the Friday previous to the fraud.

_Lord Ellenborough._ That was capable of being most distinctly verified.

_Mr. Justice Bayley._ The original letter is not annexed to the affidavit?

_Lord Cochrane._ It is not; I had no idea of bringing the letter of my brother before a court of justice.

[_The following Affidavit was read._]

"In the King's Bench.

"The King _against_ Charles Random De Berenger, & others.

"Charles Random De Berenger, the above-named defendant,
(having been found guilty of certain counts, but acquitted of
the two first contained in this indictment,) maketh oath and
saith, That he, this deponent, has zealously and loyally
served His Majesty and this country as a volunteer, during a
period of sixteen years, without ever receiving pay,
remuneration, or reward of any kind, although by a most
punctual and uninterrupted discharge of his various duties,
his pecuniary interests and views were consequently greatly
injured, but more especially during the time he acted as
Adjutant, being for a period of near seven years, when his
time was daily occupied more or less by the duties of that
situation; and instead of drawing permanent pay, as is the
usual custom of volunteer adjutants, he even put himself to
considerable annual expences, to further the views of that
service. And this deponent further saith, That the
testimonials now produced in Court, as proofs of his energetic
and loyal services, are of the proper hand-writing of the
parties whose names are thereunto respectively subscribed. And
this deponent further saith, That he has lost his paternal
fortune, exceeding the sum of thirty-three thousand pounds,
solely owing to his father's loyal adherence to the crown of
Great Britain, during the American revolution; and that no
indemnity of any kind has ever been given for such loss,
either to his late father or to himself. That perfectly
unprejudiced by such hard fate, this deponent constantly and
without fee, or even condition for reward, has since, not only
tendered his loyal assistance to this country to the utmost of
his power, and in a variety of ways, but has actually given
several important suggestions and communications, which
although made use of by the offices of Government, still
continue unrewarded. And this deponent further saith, that he
lately lost a considerable fortune from the failure of an
expensive and spirited endeavour on his part, having the
formation of a national fund for the succour of artists, and
the relief of their widows and orphans, for its object,
whereby he was ruined a second time, and deprived, in
consequence, of his liberty: that although distressed himself,
and having numerous debts on his books due to him from
Englishmen unable to pay, he has always been merciful to them.
And this deponent further saith, That he has already suffered
a painful imprisonment, ever since the eighth of April last,
by which his means of defence were not only decidedly impeded,
but his strength and health most materially injured; that in
this particular, as also in the mode of seizing his papers and
property, he has suffered considerable hardships, while his
slender pecuniary resources, from the aforesaid causes, and by
the heavy expences of his confinement and trial, are totally
destroyed; and that on these accounts his sufferings have been
greater than those of any of the other defendants. And this
deponent also saith, that any further degradation must ruin
his prospects in life for ever, and bring anguish and despair
upon him, who has already suffered so severely from his
attachment to this country; and he respectfully hopes, that
his severe losses and ruined circumstances, his general
exemplary conduct, his uninterrupted loyalty, and his many
unrequited services, will have due weight with this honourable
Court, in mitigation of punishment; he also relies that
considerations additionally stimulating to forgiveness, will
animate his judges, when it is stated, that deponent to this
moment has received no recompence whatever, for his many
patriotic exertions and ruinous sacrifices; and above all,
that in consequence of his not having succeeded in obtaining a
respite of the judgment for a short time, he has been
prevented from experiencing the benefit of important
affidavits, which he anxiously expected from other persons.

_Charles Random De Berenger._"

_Mr. Topping._ I was of Counsel with Mr. Serjeant Best on the trial; I am not furnished with any affidavit on the part of Mr. Butt.

_Mr. Butt._ I came into Court, my Lord, expecting the privilege of asking for a new trial, upon certain facts which I have put down in my pocket-book.

_Lord Ellenborough._ You are not in time to move for a new trial.

_Mr. Butt._ I know I am not, my Lord; I was merely going to explain----

_Mr. Justice Le Blanc._ If you appear by Counsel, your Counsel had better state what you have to suggest.

_Mr. Topping._ I have no instructions on the subject.

_Mr. Butt._ I hope you will forgive my importunity in begging for a few moments to address you, having never been before in a court of justice, either as plaintiff or defendant; that I trust will plead my apology. If you will hear me, I shall be much obliged to you.

My Lords; I have been tried for conspiring with other persons, to raise the price of the public Government funds, and also for promoting assistance to those measures, by the changing of notes, and various other circumstances. I beg to assure your Lordships, that I do not address you on the idea or wish of a mitigation of any punishment you may think proper to inflict upon me; it is merely to express to you, that my sole wish and desire is to claim the indulgence of the Court, in permitting me to have a new and distinct trial, that I may clear my character from the cloud with which it is now depressed, and which had previously been without a blemish; as I am confident, if my case was separated from other persons in the indictment, it would be the means of my acquittal. It was my intention to have appeared in Court some days since, to have made the same request which I now do of your Lordships, had it not been for my Counsel informing me, that I should have been committed directly I entered the Court; and that the defendants should all appear before the Court could grant my request. This I found impossible to accomplish; and I declare, that the defendants, Sandom, Lyte, Holloway, and M'Rae, are all perfectly unknown to me; that I never directly or indirectly had any knowledge or communication or ever saw them in my life, neither did I ever see Mr. De Berenger more than two or three times. I beg also to acquaint your Lordships, that the bank notes which have been stated to have passed through my hands must, unavoidably so have done, as I permitted, without thinking it any crime, at the solicitation of my friends, that all drafts connected with the Stock Exchange business should be paid in my name, whether I was in London or not; and I did at any time change notes, or lend Mr. Johnstone money, as a temporary accommodation, when he wished it; and yet it is a fact, that I had never seen Mr. Johnstone till the 2d of January last. But it is impossible for me, and certainly a case of hardship, that I should be answerable for the manner in which those notes might be disposed of afterwards. There appears no one witness on the trial, that can give any extraordinary reason for my having paid the notes alluded to by Mr. Johnstone; for I might, hundreds of times, have paid notes to an equal amount to him, or to any other man.

My own conscience clears me of the offence laid to my charge, and so far was I from avoiding investigation, that I courted it, and instructed my Counsel not to take advantage of any flaw, should there appear one in the indictment, but to force the trial to issue.

I can only, my Lords, accuse myself of one fault, if it can be so called, that of being too generous and unguarded upon money affairs. I shall not intrude myself any further upon your Lordship's time, only assuring you, that the magnitude of my concerns in the funds, upon which so much stress has been laid, was not, according to my calculation, any thing extraordinary, neither was the sum I held on the 21st February, an act of premeditation, my concerns being as extensive before that period as at that time, and my profit upon that day, which has been so much exaggerated, was only £.1,300, instead of £.3,000, as stated by the counsel for the prosecution. Whatever your Lordships decision may be respecting myself, I shall bow with submission, feeling conscious of my innocence of the charge upon which I have been found guilty.

MR. PARK,

My Lord, I am of Counsel for Mr. De Berenger, and it does not very often fall to my lot to be Counsel for a defendant in the situation he is in. When we are so, we are always placed in a most painful situation; because it does not become the defendants themselves, much less does it become us, to offer any thing to your Lordships that may go in contradiction to the verdict. Undoubtedly, Mr. De Berenger is convicted, and he must abide the consequences of that conviction. His affidavit, I have seen only this morning; it seems to me to contain no exceptionable matter in it, which is not always the case; that certainly is a circumstance which one may fairly press upon the Court in favour of a defendant. He states to your Lordships what was to a certain degree confirmed by a noble lord upon the trial. If I recollect rightly, your Lordship has reported, that Lord Yarmouth stated in evidence, that this gentleman had conducted himself as adjutant to the volunteer corps of which he was commander, in a most exemplary manner. That was a character in which he received no remuneration; and he states to your Lordships also, that himself and his family were American loyalists, who suffered very considerably during the American war, in consequence of their attachment to this country; those are all circumstances which will meet with attention in your Lordships minds. In addition to this he has stated, what the circumstances of the case alone would convince your Lordships of without any affidavit, that being a defendant, under so expensive a prosecution, has occasioned him an enormous expence. That will be taken into consideration; and it will not be forgotten, although this gentleman cannot be said to have been imprisoned on this charge, it being of a nature to admit of bail, yet he has been upwards of two months in actual custody in the jail of Newgate; that is a circumstance which does not apply to any other of the defendants, and the Court will take it also into consideration in passing sentence. I am quite aware he was taken up under a warrant of the Secretary of State, under the Alien Act; but his imprisonment had its origin in this charge, and to a certain degree it has deprived him of those advantages for his defence which the other defendants have enjoyed; I am not aware that I can better serve this gentleman, than by drawing your Lordship's attention to the circumstances which are contained in this affidavit; and I trust I have not said any thing calculated to increase the severity of his punishment.

_Lord Ellenborough._ Lord Yarmouth only speaks to the time during which he had known him to be acting as Adjutant; he states that he had known him since the year 1811.

_Mr. Park._ I do not know that Lord Yarmouth's statement went beyond that, I thought he had added something of approbation; but I submit to your Lordship, it is of itself sufficient proof of his good conduct, that he was so long continued in the situation.

MR. RICHARDSON.

My Lord; I am also of counsel for this unfortunate foreigner. I have no observation to make, except merely to call your Lordship's attention to this;--it is confirmed by Lord Yarmouth, that the defendant was a voluntary servant to the interests of this country, his services were therefore praise-worthy, and he appears by his affidavit to have been a material sufferer by the loyalty of his ancestors. These circumstances, I hope, will be taken into consideration by the Court. Your lordships also see, that he was a person in an extremely distressed situation, and at the time was suffering imprisonment, in consequence of the ruin of his fortunes, which he has mentioned.

_Lord. Ellenborough._ Is he in custody now under this charge?

_Mr. Park._ He is in custody in Newgate, my Lord, under the Alien Act.

_Lord Ellenborough._ There was no application made to put off the trial; a day was mentioned to the Court, and the counsel on both sides, stated their wish that it should come on; no impediment therefore existed in the way of the defence.

MR. SERJEANT PELL.

I appear, my Lords, on behalf of the three last defendants, Holloway, Sandom, and Lyte, men in a very different situation from the noble, but unfortunate person who first addressed your Lordships, upon the present painful occasion. The office I had to perform for these three defendants appeared to me on the trial to be a very difficult one; because with regard to them there was a direct confession, that they were in part guilty of that which was imputed to them. Holloway and Sandom, voluntarily confessed themselves guilty of all that part of the transaction, which related to the Northfleet affair.

_Mr. Justice Le Blanc._ There was a confession by two of them.

_Mr. Serjeant Pell._ But though they were the only persons who made a direct confession, yet I, upon the trial as counsel for Mr. Sandom, had no scruple in saying, that Mr. Sandom concurred in the confession which they had made. In this situation, it not being possible for me to contend, that those for whom I appeared, were not guilty of that part of the transaction; the only point which I could enforce at the trial was, that they were unacquainted with the other part. It is not for me to contend now (against the verdict of the Jury) that they were not also guilty of the other part; though, if I might be permitted to state my own feelings, I cannot but think there was a considerable defect of proof on that part of the case. The only circumstance that connected the one transaction with the other, independently of their taking place at the same period of time--and we must be aware that history furnishes many examples of conspiracies, having the same object, formed at the same time, yet totally unconnected with each other--the only link that connected the first of these transactions with the last, was the letter of Mr. Cochrane Johnstone, in which he mentions M'Rae as a person, who, for £.10,000, was willing to explain the whole of the transaction of the 21st February. Unquestionably that letter was no evidence against Mr. Holloway, Mr. Sandom, and Mr. Lyte. There was but one other circumstance appearing on the trial that connected them together; it was, that the chaise which took Mr. De Berenger, went to the same place where the chaise went which carried the three others. But it appeared upon the evidence, with respect to that part of the case, that Mr. De Berenger went to the Marsh-gate at Lambeth, not in consequence of design, but of an intimation which he received from the driver who drove the last stage, that there was no hackney-coach to be procured at the first place where they would stop; in consequence of which, Mr. De Berenger directed the man to drive him to another.

I am not disposed to-day to go into that part of the case, and to argue the matter as I did before the jury. That there was evidence on which the verdict of the jury may be supported, I cannot for a moment dispute; but I am sure your Lordships will excuse me for just begging your attention to that part of the case, because, I think, when compared and considered, together with what Mr. Holloway did when he made the communication to the Stock-Exchange, it does furnish an additional ground, which may fairly be urged in mitigation of punishment.

Let us attend to the circumstances under which Mr. Holloway made this confession. M'Rae, of whom I know nothing, is absent, and I have no means of tracing who he is; but he, finding there was a strong disposition on the part of the Stock Exchange, upon any terms to obtain evidence of the transaction of this day, hastens to Mr. Cochrane Johnstone, and then this extravagant offer is made by Mr. Johnstone on his behalf, to communicate all the information he is possessed of for the sum of £.10,000. This reaches the ears of Mr. Holloway. Mr. Holloway, knowing he had been guilty of acts on that day, which certainly would subject him, if discovered, to a criminal prosecution, but having reason to believe that M'Rae knew nothing of the transaction in which De Berenger acted, with a view to save the gentlemen of the Stock Exchange from paying money for a communication which would be of no value, came forward and made the confession, which appears upon your lordship's notes. Were it not for that confession voluntarily made by Mr. Holloway, there is no evidence against him, to shew that he was guilty of any part of the charge; nor any evidence against Lyte, to shew that he was guilty; but he was present when Holloway made the confession, and permitted him to make it. Therefore the whole evidence against them is their own confession, made with a view to save the gentlemen of the Stock Exchange a useless loss of money. I think I may be permitted to say, particularly as it regards Mr. Holloway and Mr. Lyte, that they stand in a situation which at least entitles them to the consideration of your lordships. I will not presume to say, the confession of Mr. Holloway and Mr. Lyte was made under any promise from the gentlemen of the Stock Exchange that it should not be used against them; but I think I may be permitted to suggest, that could they have supposed, the only evidence to be used against them would be their own confession, they would rather have hesitated about making a confession which alone places them this day before your lordships. It must likewise be taken as part of that confession, that Holloway and Lyte denied any concurrence with the noble lord and the other defendants; and I think I may press upon your lordships attention, in confirmation of this, what Lord Cochrane has himself stated, that he had no knowledge of them.

My Lords, it is true these persons have been guilty of a great misdemeanor, and it is not for me to say a word in their favour, in the way of palliating the immorality of the act. All I could submit to the jury was, that there was not evidence to connect them, with the other part of transaction; all I can now submit to your Lordships, is that they have done all they could do, after having been led into the commission of so scandalous and mischievous an offence, to save the prosecutors further loss and trouble. I have not troubled the Court with affidavits to character, I am well aware that such a transaction as this must stand by itself, I pursue the same line of conduct which I did at the trial; I propose not to offer any thing in arrest of judgment, I produce no affidavits in mitigation of punishment; but I do submit to your Lordships upon the whole of the case, as it respects these three defendants, that they do stand in a different situation from the other defendants; and though it is not to be forgotten that they were parties in a most scandalous transaction, yet that their ready confession does entitle them to as much consideration, as your Lordships can give in such a case.

MR. C. F. WILLIAMS.

My Lord, I am also counsel for these three defendants; the grounds of indulgence have been so fully gone over by Mr. Serj. Pell, that I think it unnecessary to make any observations.

MR. DENMAN.

My Lord, I am with the two learned gentlemen who have preceded me; and I would merely observe, that the affidavits which we might have been expected to offer upon this occasion, in support of the line of defence which we pursued, and which the learned serjeant has stated, could not properly be addressed to the court, because they must have gone in contravention to the verdict of the jury. At the same time I may be permitted to say, it is extremely singular, that in the two plans to affect this mischief, in each of which so many persons were concerned, and where so much assiduity has been employed, no one circumstance of connection between them has been discovered but that which was stated by the learned serjeant. What M'Rae might communicate was no evidence against these defendants; no doubt Mr. Cochrane Johnstone gave his sanction to that communication, by offering to contribute to the reward for which M'Rae stipulated; but Mr. Johnstone's acts are no evidence against these defendants. It is most unfortunate for them, that M'Rae, who appears to have been connected with Mr. Johnstone in one part of the affair, has appeared to be connected with them in the other part. It will perhaps occur to your Lordships to enquire why I state these things, seeing there is an admission of something criminal. I state them, because I think they do afford an argument in mitigation of punishment; because I think they will lead to the conclusion in your Lordships minds, that had these defendants been aware of the whole extent of mischief which was to be carried into effect, they probably would not have joined in it. Your Lordship put it to the jury, at the trial, that it was not necessary all the actors in the drama should know the part assigned to each,--that it was enough they had each contributed to the general object.

_Lord Ellenborough._ That they were parties to the general object, and co-operating to effect it.

_Mr. Denman._ But your Lordship particularly stated, it was not necessary that the jury should arrive at the precise degree of participation and extent of criminality. I humbly conceive, the extent of criminality, as affecting these defendants, is, in comparison with the others, very small; and I trust your Lordships, considering their degree of guilt, will proportionably moderate the degree of their punishment. In the case of conspiracy, the law itself inflicts a most severe and heavy judgment; and in pronouncing that sentence which must come from your Lordship's lips, I have no doubt, the considerations which attach themselves to it, will not be overlooked.

MR. GURNEY.

My Lord; my learned friend Mr. Serjeant Pell has alluded to the different situations of the several defendants who now stand upon the floor for your Lordships Judgment. It is, my Lords, a lamentable spectacle, but it will not, I trust, be an unprofitable lesson to mankind, that conspiracy, like "misery, acquaints a man with strange bedfellows." The conspiracy of the 21st February was, for all the defendants to act in concert, each man to perform his part toward the accomplishment of their common purpose;--one to travel from Dover, others to travel from Northfleet, and others to be on the spot at the Stock Exchange, to avail themselves of the rise in the funds produced by these operations. But the conspiracy on the day of trial, and the conspiracy of this day, is, for each, to be distinct and separate, and, as much as possible, unknown to the others.

I am willing to concede to my learned friends who have last addressed your Lordships, that some of these defendants do stand in a very different situation from the others. Of Holloway and Lyte, it is fairly to be observed, that by their confession they did manifest a degree of contrition; it must, however, be recollected respecting Holloway, that the purpose which he conceived, was a fraud for his own personal advantage: It is in evidence that his fraud took effect; and he has not ventured to state to your Lordships, by affidavit, to what extent that fraud was successful and profitable.

With regard to Sandom, the other defendant of this class, his part in this transaction was a very prominent and important part; and he was proved to be guilty by the evidence of others, not by his own;--he cannot plead the merit of a confession. It may, however, fairly be urged for all these three defendants, Sandom, Holloway and Lyte, that they did not aggravate their case at the trial, in the manner in which the other defendants aggravated theirs.

As to the defendant De Berenger, it appears that he was the hired and paid agent of Lord Cochrane, Mr. Cochrane Johnstone, and Mr. Butt; and having received his wages, he was attempting clandestinely to quit the country: If he had effected that purpose, he would have escaped punishment himself, and would probably have defeated justice with regard to the others. But, my Lords, his case has been greatly aggravated, as indeed have the cases of Lord Cochrane and Mr. Cochrane Johnstone, by attempts to defeat public justice, as absurd as they were wicked; for all the swearing before the trial, all the swearing at the trial, and all the swearing of to-day, has proceeded on the presumption, that if men will have the hardihood to swear, there will be found those who will have the credulity to believe.

Your Lordship has reported to the Court to-day, the evidence that was given on the part of Mr. Cochrane Johnstone and Mr. De Berenger, the letters which were stated by Mr. Tahourdin to have been written by Mr. Cochrane Johnstone and Mr. De Berenger, on the 22d February, the day after this fraud had been perpetrated. Whether Mr. Tahourdin deposed to that which was correctly true, or not, appears to me to make no difference. If the letters were written at a period subsequent to their dates, they were fabricated for the purpose of constituting an artificial defence. If they were written at the time they bear date, then they were equally fabricated for an artificial defence; and at the very moment of the commission of the crime, the parties were providing the means of a false defence, in case they should be detected.

There was a flat contradiction between Mr. Tahourdin and the letter which Mr. Tahourdin produced; whether the evidence of the witness were true, or the statement in the letter were true, matters not; the contradiction, independent of all other circumstances, shews that the whole of this transaction was one premeditated scheme of fraud.

There was still more evidence respecting De Berenger; a number of witnesses were called to swear, that at the time when he was proved to have been at Dover, he was actually in London, or at least in London so short a time before, that he could not by possibility have been at Dover. The persons who formed this scheme totally forgot the sort of case they had to meet: they were endeavouring to meet a case of recognition of the human countenance, by witnesses who might be mistaken in that recognition; and they forgot, that to a recognition of the countenance, a recognition however which surpassed every thing that ever fell under my observation, though put to the severest test to which such testimony was ever exposed--De Berenger, seated among a number of persons, nothing distinguishing him, nothing to attract the attention of the witnesses, yet witness after witness, with but a single exception, on looking round the Court, recognized his person the moment he cast his eyes upon his countenance.--I say, my Lord, that they who contrived this false and perjured defence, forgot that, in addition to this, there was the delivery of De Berenger from hand to hand, from Dover into the house of Lord Cochrane; and into the house of Lord Cochrane it was never pretended that any other person but De Berenger entered.

Then, my Lords, we have the affidavit of Lord Cochrane, to which he has added the affidavit of to-day, respecting the dress which De Berenger wore upon that occasion. It is singular that a servant of Lord Cochrane's should have been called upon the trial, examined upon other points to the confirmation of his master's affidavit, and that my learned friends, who were of counsel for Lord Cochrane, whose ability, whose discretion, and whose zeal, no man who knows them can question, did not venture to put to that servant a question as to the colour of De Berenger's coat; and that they did not venture to call the two other servants, one of whom at least was in attendance, and if the other had been wanted, it would not have been difficult for Lord Cochrane to have detained him in England, that he too might have been examined. No man can doubt that the reason why my friends abstained from asking that question, and going into that examination, was, that after the evidence which had been given by all the witnesses for the prosecution, as to his dress, continued up to the last moment by the driver of the hackney-coach, who swore to De Berenger's entering the house in a _scarlet_ coat; if all the servants in Lord Cochrane's house had been called to swear that the colour of De Berenger's coat was _green_, no man alive could have believed them.

Your Lordships have before you the whole extent of this gigantic Conspiracy and Fraud; you have seen the stock account of these persons, and you find that on the morning of this day Lord Cochrane, Mr. Cochrane Johnstone, and Mr. Butt, were possessed of as much in Consols and Omnium, as, reduced to Consols alone, would amount to £.1,600,000; on which sum, the fluctuation of only one-eighth per cent. would produce a loss or gain of £.2,000; and although these defendants have not profited to the extent they anticipated, first, because the telegraph did not work,--no thanks to them that it did not;--and next, because the fruit of their fraud was intercepted,--the stolen goods were stopped in transitu,--still it appears from the evidence of Mr. Baily, that they have been materially enriched by their fraud, for they were enabled to get rid of this immense amount of Consols and Omnium, without loss, which, but for the operation of this fraud, they could not have done.

At the trial, Mr. Serjeant Best pressed very eloquently upon your Lordship and the jury, the former services of Lord Cochrane: I must observe, my Lord, that those services had neither been forgotten nor unrewarded by his Sovereign or his Country:--by his Sovereign, he had been raised to a high rank in his profession, and was in the path to the highest; he had also been invested with a most honourable personal distinction, which adds lustre even to nobility itself; which, at the same time that it was a reward for the past, ought to have been an incentive for the future:--He had been raised by a grateful Country to the proud and enviable station of representative in Parliament for the city in which your Lordships are now sitting; which, at the same time that it imposed on him the duty of watching, and if necessary, of animadverting on the conduct of others, especially bound him to guard the purity of his own. For all this, what return has he made?--he has engaged in a conspiracy to perpetrate a fraud, by producing an undue effect on the public funds of the Country, of which funds he was an appointed guardian, and to perpetrate that fraud by falsehood: He attempted to palm that falsehood upon that very Board of Government, under the orders of which he was then fitting out, on an important public service; and still more, as if to dishonour the profession of which he was a member, he attempted to make a brother officer the organ of that falsehood.

This offence, my Lord, does not proceed from the infirmity of a noble mind, from the impetuosity of youthful passion, from the excess of any generous feeling;--it is cold, calculating fraud, scarcely capable of aggravation; but, if it be capable of aggravation, it has received this great aggravation, that when threatened with detection, he endeavoured to avert it by the deliberate commission of a crime which, I repeat, has all the moral turpitude of Perjury, without its legal responsibility. I have to add one observation only, which applies equally to Lord Cochrane and Mr. Butt, that they stand before your Lordship, though convicted, unrepenting.

The Prosecutors in this case have, through many difficulties, conducted this Prosecution to its termination: they have sought an honourable end by honourable means: they have sought for justice, and justice only; and to your Lordships justice they commit these Defendants.

_Lord Ellenborough._ Let all the Defendants stand committed, and be brought up to-morrow morning to receive the Judgment of the Court.

Court of King's Bench.

_Tuesday, June 21, 1814._

_Charles Random De Berenger, Lord Cochrane, Richard Gathorne Butt, Ralph Sandom, John Peter Holloway, and Henry Lyte were brought up pursuant to the order of the Court to receive judgment._

MR. JUSTICE LE BLANC.

The six defendants, whose names have been now called, are to receive the judgment of the court, in consequence of a conviction upon an indictment for a conspiracy; that indictment, and the evidence which had been given upon the trial, on which trial the jury pronounced the several defendants guilty, was more particularly stated to the court yesterday, in the course of the discussion which took place. The sum of the offence charged in the indictment was, that these six defendants, together with two other persons, who do not now appear to abide the judgment of the law, had conspired together, by spreading false rumours and reports in different places, to occasion a rise in the price of the public funds of this country, on a particular day, and thereby to injure all those subjects who might purchase stock on that particular day; that was the sum of the charge contained in the several counts of the indictment on which the defendants were found guilty.

I will shortly advert to the circumstances of the case as they appeared in evidence. From that evidence it appeared, that some of the defendants had been, for a short time previous to the time when this conspiracy was put into execution, (namely the 21st of February,) largely speculating in the public funds of the country, and that at that time three of the defendants who now appear before the court, together with one of the defendants who does not appear, were either holders of stock, or persons who had contracted for the purchase of stock, to a very considerable amount. It appears, that on the 19th of February, which was on a Saturday, a person, not expressly spoken to by the witness, had purchased of a military accoutrement-maker in this town the dress, or at least part of the dress, and accoutrements, of a foreign officer, stating at that time, that it was designed for a person who was to appear in the character of a foreign officer, and that on the same day another person who was concerned in another part of the plot, had produced a small parcel at home which had been given to his wife, and the next morning (Sunday) had brought home two coats and two hats, evidently intended to fit out two persons with the appearance of foreign officers. Those are the first circumstances that appear previous to the day when this plan was to be put in execution.

The next period to be adverted to was the morning of Monday, the 21st of February, and on that morning, about a quarter after one o'clock in the morning, one of the defendants, Charles Random de Berenger, makes his appearance at the door of the Ship Inn at Dover, wearing the dress of a foreign officer, as described by four witnesses, who saw him at Dover with the scarlet uniform of a military officer under a grey great coat, and a military cap, the cap worn by military officers, applying to be furnished immediately with a chaise and four to proceed on his journey to town, holding himself out as a person who had just landed from a vessel come from the coast of France, and bringing very important intelligence of the success of engagements in that country, in which the Ruler of France had been defeated, with other circumstances not particularly necessary to be adverted to, and that the consequences would be in a very short time a peace between that country and this. He is expressly recognized and pointed out as being one of the defendants, Charles Random De Berenger, by four different persons who saw him at that time in the morning at the Ship Inn, where he continued for some time, while horses were preparing, having called for pen, ink and paper, to write a letter, as he professed, to be sent off to Admiral Foley, the Admiral commanding the ships stationed in the Downs, and while there actually dispatching a messenger with such letter to Admiral Foley, which is proved to be afterwards received by the Admiral, affecting to communicate this intelligence, and signing this by the affected name of De Bourg, as aid-de-camp, to what appears to be intended for Lord Cathcart.