Part 90 (1/2)

_Mr. Serjeant Best._ I proved that he had the original in his hand; this is the letter of the guilty Lord Cochrane to the innocent Mr. Le Marchant, in answer to the two applications for an interview. ”Sir, I should have hoped, circ.u.mstanced as I am, and attacked by scoundrels of all descriptions, that a gentleman of your understanding might have discovered some better reason than that of silent contempt;” that is, what he complains of to Lord Cochrane in his second letter, ”to account for the delay of a few hours in answering a note; the more particularly as your note of the 6th led me to conclude, that the information offered to me, was meant as a mark of civility and attention, and was not on a subject in which you felt any personal interest.” A more prudent letter than that, I defy any man in Lord Cochrane's situation to write. A guilty man catches at any twig, but Lord Cochrane does not answer this gentleman at first, and when pressed by a second letter, he tells him the reason; it is unsafe you and I should meet, I cannot trust you, I am surrounded by scoundrels who are attempting to charge upon me a crime of which I know I am innocent.

Gentlemen, having stated to you in what light this letter shews Lord Cochrane, I beg to read you the last letter of this man, who has offered his evidence to-day; and I will then ask you, whether upon the testimony of such a man as this, you will convict one of the most suspicious characters that ever was produced in a court of justice; whether you would in any cause, of ever so trifling importance, give the least consideration to it. ”I ask your lords.h.i.+p's pardon of my letter of yesterday, and which was written under the supposition of being treated with silent contempt;” so that this gentlemen put the true construction upon it, certainly. ”To convince you of the high respect I have for your lords.h.i.+p, I have the honour to enclose to you a statement of what I know relative to the 21st February, and I also now declare solemnly, that no power or consideration shall ever induce me to come forward as an evidence against you, and that all I know on the subject shall be buried for ever in oblivion. Thus much I hope will convince you I am more your friend than an enemy, as my testimony, corroborated by the two officers, would be of great import, not (believe me) that I myself doubt in anywise your lords.h.i.+p's affidavit; but De Berenger's conversation with me, would, to your enemies be positive proof. As for my part, I now consider all that man told me to be diabolically false;” and yet he has to-day come forward to tell you the truth, and the whole truth; he has told you what De Berenger said, and has not stated the qualification, that he did not believe one word of it. ”If my conduct meets your approbation, can I ask for a reciprocal favour, as a temporary loan, on security being given; I am just appointed to a situation of about .1,200 a year, but, for the moment, am in the greatest distress, with a large family; you can without risk, and have the means to relieve us, and, I believe, the will of doing good. Necessity has driven me to ask your lords.h.i.+p this favour; whether granted or not, be a.s.sured of my keeping my oath now pledged, of secrecy.” He has kept that oath, I dare say, as well as he has kept this; he went and gave information, and comes forward to-day to give evidence; you remember how he fenced with the evidence. I ask you, whether you believe, after I have read this, one word of what he has said. I ask you, whether this is not taking advantage of the situation of this n.o.ble lord. I am sorry to see that a man can act so scandalous a part, who has the honour of being appointed to a situation of .1,200 a year; but I am quite satisfied the moment the Government know this, that suspension which does exist, will be continued, and that this man will never be sent to the office to which he was destined. I am quite satisfied, that when this letter is read, you will feel, that even as it respects Mr. De Berenger, for it is applicable only to him, his evidence can have no influence in any court of justice whatever, for that it comes from a man who, in the clearest and most unequivocal manner, declares himself most infamous, and most unworthy of credit.

Gentlemen, I am conscious that fatigued as I felt myself, when I rose to address you, after having been thirteen or fourteen hours in court, I have very imperfectly discharged the duty which I owed my clients; but, gentlemen, I hope they will not suffer, from not having their case presented to you as it ought to have been. Gentlemen, I do not press upon you the considerations which, in criminal cases, are often pressed, and with propriety pressed, upon juries. I do not ask you to take this case in a merciful point of view; I do not press upon you the common observation, to temper your justice with mercy. I ask you to look at this case fairly and impartially; if the guilt of these gentlemen be made out, so that you, upon your oaths, must declare them guilty, say so, dreadful as will be the consequence to all these parties; but unless their guilt is made out, if there be nothing but suspicion, you will not, upon your oaths, say that suspicion is conviction.

Gentlemen, you will recollect the situations of life in which all these men are; they have all up to this moment been the best possible characters, two of them are persons of very high and distinguished situations in life, members of a very n.o.ble family; and with respect to one of them, he has reflected back on a long and n.o.ble line of ancestors, more glory than he has received from them; and it would be the most painful moment of my life, if I should to-night find that that wreath of laurel which a life of danger and honour has planted round his brows, should in a moment be blasted by your verdict.

MR. PARK.

May it please your Lords.h.i.+p;

Gentlemen of the Jury,

If my learned friend, at the close of his address to you, thought it necessary to make an apology for the fatigue which he had endured in the course of this day, and during his address to you; it becomes much more necessary for me to make such an apology, when it is now sixteen hours and a half since I left my own dwelling. Gentlemen, notwithstanding that, I have a very serious and important duty to discharge to the person who now sits by me, and I have no difficulty in calling upon you, in the most serious manner, fatigued and exhausted as you may be, for your attention; you must not permit, I take the liberty of saying, as you regard the oath you have taken, you must not permit that fatigue to disable you from attention to the statement and the evidence that are to be laid before you.

Gentlemen, the case has become an extremely serious and a most important one; for the gentlemen for whom my learned friend the Serjeant has addressed you, I have nothing to say; they have been well and ably defended; but I am to address you on behalf of a gentleman totally unknown to me till this day, when I saw him in Court. He is represented to me as a gentleman of very high descent, and though he has been unfortunate in his pecuniary circ.u.mstances, he has been proved, before you to-day, to be man of very considerable attainments, and of high and literary character; it is therefore your duty, and I know it is a duty you will honestly and faithfully discharge, not to allow what my learned friend cautioned you well against, but immediately fell into the very same course himself; not to allow any thing like prejudice to bias any of your minds.

Gentlemen, I am no flatterer of persons who sit in your place; and I have no difficulty in telling you twelve gentlemen, that, though I have no doubt you are honorable men, you cannot have lived in this city, in which you are all merchants, for the last two months of your lives, without having every hour of the day, and at every meal at which you sat down, had your ears a.s.sailed by accounts of this transaction, and there is no one, however honourable he may be, who can prevent his mind being bia.s.sed by circ.u.mstances stated in common conversation. Gentlemen, I only know this matter publicly; but I declare one could hardly go into any company, where the discourse has not been turned upon this very circ.u.mstance we are now discussing; how difficult is it then for you to recollect, that you are not to decide upon any thing you heard before you came into that box, but upon the evidence produced before you. But, did my learned friend himself follow that course which he prescribed to you? Did he embark no prejudice into this matter? My learned friend will give me leave to say, that I own it is quite new to me, that in discussing criminal matters, the counsel for the prosecution are to argue it and labour it as they would a cause between party and party:--I dare say I have been extremely faulty in that respect, but having been engaged in criminal prosecutions, chiefly in the service of His Majesty, I never thought myself at liberty so to treat criminal prosecutions. I have generally acted on the opposite scheme, and mean, till corrected, so to continue to act; but at all events, I am surprised that my learned friend, with whose good nature in private life we are all acquainted, should have introduced before you, that which I say my learned friend's great experience in courts of justice told him, before he p.r.o.nounced it, he had no right to read in evidence before you. I do not speak lightly of this; you will remember we had an affidavit, supposed to have been made by William Smith, read verbatim from some pamphlet my learned friend had in his hand; he knew perfectly well that it could not be given in evidence; if William Smith was called as a witness, undoubtedly my learned friend might ask him, whether he had not sworn the contrary at another time; but it will be for my learned friend to explain to you, under what rule it was, that he was at liberty to read such a doc.u.ment as a part of his speech, which, by the rules of law, could not be received in evidence in this place.

Gentlemen, there was another circ.u.mstance which my learned friend has introduced to prejudice this case; and unless I have deceived myself, or my ears have deceived me, I have heard no such evidence given in the cause, as my learned friend stated; a stronger statement to prejudice could hardly be made in a case of this sort; but I heard no such question put to Wood, the messenger, and I listened with all the attention I could to his examination.--My learned friend stated, that Mr. De Berenger had been extremely anxious to get back into his hands the identical notes; that no other notes would serve him; that he must have those notes, and those only delivered back. Was this stated without any reason by my learned friend? Certainly not; it would have been, if the fact had corresponded with the statement, an extremely strong argument on the part of my learned friend against this gentleman for whom I am counsel. But my learned friend, and his learned coadjutors, never put to any witness, at any one period of this cause, the question, whether Mr. De Berenger made any such application to their knowledge?

and all this is a gratuitous statement of my learned friend, but a statement that went to prejudice, or was intended to prejudice, your minds upon the subject, and it undoubtedly was very important.

Gentlemen, this may have been said in places unknown to me; it may have been said in newspapers for aught I know to the contrary; but, thank G.o.d, I never read newspapers with that attention some gentlemen do, for I think it is a great waste of time. If men are in public situation, they must read them; but I have heard no statement in evidence of that circ.u.mstance, which my learned friend Mr. Gurney so much relied upon, and so much reasoned upon in his statement to you.

Gentlemen, it was also said, that there had been publications in this case; I do not know by whom those publications have taken place. There was some evidence given by Mr. Richardson, of a publication by Mr. b.u.t.t; that I suppose my learned friend has seen; I have not; but I do not go along with my learned friend in this; I do not agree, that these are the necessary consequences of a free press; I have always been of opinion, and always shall, because it is firmly rooted in my mind, that all previous publications on one side or the other, tending to inflame the minds of the Jury, who are to try questions between the King and his subjects, or between party and party, on whatever side they may be published, are most highly and extremely improper. I think it is a disgrace, that the press of this country has engendered such an avidity in the public mind to have these things detailed to them; that they indulge it to a degree subversive of all justice. Hardly a case has happened within our own observation of late years, that the whole of the case has not been detailed before it came to trial, so that it is impossible but that the minds of the jurymen (and men cannot divine whether they shall be jurymen or not) should receive a bias upon this subject; but it is very hard that all the obloquy which such publications merit, should be thrown upon the defendants. Did that self-const.i.tuted Committee of the Stock Exchange, of which I shall speak much more plainly by and by, and tell you what I think of that committee; did that self-const.i.tuted Committee of the Stock Exchange, who have brought forward this as a charge against the defendants, make no publication; did they not placard on the doors of their Stock Exchange, the names of these gentlemen, members of the legislature, and persons standing so high in the country? Why did they set so infamous an example? I admit to follow it was bad; but to set it, I insist, was much worse.

Gentlemen, whatever blame may have attached upon some of the defendants, if they have made these publications, my client, Mr. De Berenger, is not implicated in any such transactions. Those who have published have only followed the example set them by the prosecutors on this occasion.

Gentlemen, there are certain rules of evidence on subjects of this nature, with which I am sure you are in a great degree acquainted, but upon which you will hear more from his Lords.h.i.+p by and by. It is quite clear that no declarations of one party, though he may be indicted with the others, can be evidence against the other defendants, unless they be present at that declaration. My learned friend, the Serjeant, has so fully gone through the general nature of the case, that it would be impertinent in me to do it; but I shall observe such things as occur to me, on the different species of proof on the part of the prosecution, and I think I shall most decidedly convince you, that even as the case stands, if it was not to be met by the evidence by which it will be met, it would be impossible for you to convict any of these parties, for whom my learned friend and myself are counsel.

Gentlemen, I will presently come to the evidence by which Mr. De Berenger is supposed to be traced from Dover to London; but the great point upon which my learned friend relied, as affecting him after he came to London, was the contradictory statement, as it is supposed, of Lord Cochrane in his affidavit. Gentlemen, first, upon the subject of what are called voluntary affidavits. It is extremely absurd in magistrates ever to take them; no man who knows the law, if he knew he was taking a mere voluntary affidavit, would swear the person before him; but as far as the magistrates are concerned, it is impossible from the nature of the thing, that they should know whether they are voluntary affidavits or not, for there is a great part of the business of magistrates which does not depend upon the hearing of parties, and unless they were to read every affidavit through, which would be to impose a great burthen upon them, they must sometimes swear a party to a voluntary affidavit.

But, Gentlemen, let us look to Lord Cochrane's situation in this matter.

I will suppose that Lord Cochrane knew he was not liable to the pains and penalties of perjury by law; but is Lord Cochrane so reduced in the scale of society by any thing that has yet appeared before you, that you will say he has not only joined in committing the fraud in this conspiracy charged, but that he is a person wholly unworthy of credit, and who, though he may not be subjected to the penalties of perjury, is lost to all sense of duty, so that he would, because he could not be prosecuted at law for the perjury, put his name to a direct and absolute falsehood. I believe no man would say of Lord Cochrane, that he had so utterly thrown off all regard to religion, to the sanction of an oath, properly so called, and to the responsibility he stands under in conscience, as that he would go before a magistrate and make an affidavit, because he could not be prosecuted. I think the supposition is so shocking and so degradatory to him as a man, an officer and a christian, that you will not come to that conclusion. That Lord Cochrane is a brave man, that he has served his country well, no man will deny.

Does Mr. Baily then, do the three other brokers, who demurred to the question put to them as to time bargains; do all this ma.s.s of people, const.i.tuting the Stock Exchange, now standing within the sound of my voice, mean to say, that because Lord Cochrane has acted so improperly (for I so consider it) as to enter into a time-bargain, therefore he is not to be believed upon his oath? If so, Gentlemen, the Stock Exchange and its doors must be shut up for ever; and the great men who stalk about as the self-const.i.tuted Committee of the Stock Exchange, must not have any thing to do in future, because time-bargains are their daily bread; they are at that species of traffic daily, conducting themselves in a manner, whether they like it or not, I say, is most highly disgraceful.

Gentlemen, is Lord Cochrane to be believed or not? have you any ground for saying, that this n.o.ble Lord has been guilty, not of perjury in the common sense of the word, but of perjury of a much higher kind, in my view, for which he must be accountable, for which he knows he must be accountable, if he has sworn that which he knows to be false, and which he cannot have done without being one of the most worthless men in the world. Gentlemen, what has he said? and I beg your particular attention to it, because the evidence of the brokers will not tally with the statement at all; he has sworn that he breakfasted with his uncle, Mr.

Cochrane Johnstone, in c.u.mberland place, which is at a considerable distance (whatever my learned friend may suppose about it) from Green-street Grosvenor-square; it is on the other side, I believe, of the Oxford Road, and near the top of it. It is proved that he breakfasted with him, for Crain's evidence is, that when he set down Mr.

De Berenger at the door, the answer was, that he was gone to c.u.mberland Place. What does Lord Cochrane state; that he went with his uncle in a hackney coach, which took him into the city at the hour of ten in the morning. I beg his lords.h.i.+p's particular attention to that part of the affidavit. Now, Gentlemen, when is it that these time-bargains are supposed to have been made, in consequence of news which it is alleged Mr. De Berenger brought. It is sworn that they were made before eleven o'clock in the day. Why, Gentlemen, we are forgetting distances. If Lord Cochrane was set down at Snow-hill at ten in the morning, if he afterwards came back, as he did, to Green-street Grosvenor-square, being sent for by his servant or Mr. De Berenger, he could not be back before half-past ten or nearly eleven, and I defy all mankind to state how he could after that have communicated to the Stock Exchange, the news this gentleman was supposed to be dispersing abroad, so as to affect the price of stocks. The whole of the transaction took place before eleven in the day, and he was not sent for from Snow-hill till after ten. Why, if this gentleman had been a conspirator with Lord Cochrane, when he heard that Lord Cochrane was gone to Snow-hill, he would have gone on to Snow-hill, then they would have been near the purlieus of that place where all this infamy is daily transacting; instead of that Lord Cochrane comes back. It is too ridiculous and absurd, says my learned friend, to suppose that Lord Cochrane should be coming back to see an officer. I hope, gentlemen, that will not appear to you to be absurd under the circ.u.mstances he has sworn to. I can hardly conceive a motive stronger on the mind of a brave man and a good officer for going back, than that stated by him. He was not acquainted with Mr. De Berenger's hand-writing, though Mr. Cochrane Johnstone was. Having a brother in Spain, he expected that he should receive accounts of him from a brother officer; is that an unnatural sensation? I trust it will never be so in the bosom of any one to whom I am addressing myself; it is one of the most natural that can be stated, and under that impression he goes back, and holds the conversation which has been stated.

Gentlemen, it is stated to you by my learned friend, the Serjeant, and he has better means of proving these things than I have, that the grounds upon which this matter rests, as far as Lord Cochrane is concerned, will be fully explained. The gentleman for whom I appear was, at that time, under duress on account of debt; and Mr. Tahourdin, now his attorney, was his security for that debt. He was a distressed man, and was desirous of going out to Sir Alexander Cochrane, who had had conversation with this gentleman, whose bravery and whose character n.o.body will dispute; and it will be proved to you Sir Alexander Cochrane had made application to the n.o.ble lord near his lords.h.i.+p, to enable him to go out to America; but he could not go, because His Majesty's ministers thought (and I dare say most wisely) that it was not fit to give him the rank which he claimed, being a foreigner by birth, though he had been long serving in this country with the approbation of His Majesty's Government. He was a member of the corp of sharp shooters, of which Lord Yarmouth or the Duke of c.u.mberland was the colonel. He was the adjutant of that regiment, and he had that military garb and dress which might have been sworn to by Lord Cochrane in the way my learned friend supposes, or in consequence of the facts which I have to state. I do not know why I am placed here at all, if I am to take for granted facts because witnesses have sworn them; therefore I say, Lord Cochrane might either mistake, upon the grounds upon which the learned Serjeant has stated it; or the fact might be, as my learned friend has stated, that he was not the man. I know that some of the witnesses have sworn that he was the man whom the hackney coachman took to Lord Cochrane's, but whether he had this uniform on which is stated, I have no means of proving from his declaration; but I have Lord Cochrane's affidavit as to his wearing that which was his proper uniform.

Then, gentlemen, upon my Lord Cochrane's affidavit it stands, and I say that at present there is not evidence enough to meet it. We have not often had the experience of that which has been done to-day; I believe not above twice in my professional life have I seen a prosecutor put in an answer in Chancery of the person who was defendant, and then negative that answer; but I say, there is not that negation of Lord Cochrane's story which can set it aside. You are bound to take all that Lord Cochrane swears upon the subject; and he has sworn to you that Mr. De Berenger did not communicate to him any single fact respecting the stocks, but that all his communication was with respect to his then distresses. Now, gentlemen, where is the inconsistency of that which appears upon the evidence before the Court, and that which will be produced. If this gentleman was desirous of going out with Lord Cochrane in the Tonnant, and if he had done that which I am not commending, though I shall presently shew it is not so culpable as it at first appears. He had no right, I acknowledge, to break the rules of the King's Bench, having the benefit of those rules, but where is the great wickedness of it? He gave bail to the marshal to answer the risk; but if he had come out of that place, dressed as you hear, by my Lord Cochrane, he had done so with a view of going immediately off to Portsmouth; and when my Lord Cochrane could not take him, though there was no inconsistency in his coming in that uniform, which was to be useful to him if he got out to America, there was a great deal of difficulty, at twelve or one in the day, in his returning in that garb or dress into the rules of the King's Bench prison, for he had not only to walk from the place whence those rules began to the house of Davidson, but first of all to where the rules began; and therefore, though it might be imprudent in Lord Cochrane, I shall prove that he did lend clothes to Mr. De Berenger, for that he returned in the black clothes to his lodgings, and that he had in a bundle those clothes which he had taken out on his back. There appears to me nothing so absurd in the story as to induce you to say, that Lord Cochrane has written to the public that which was wholly and absolutely false within his own knowledge, in order to deceive the public.

Gentlemen, when this person found that he could neither go with Lord Cochrane, nor in any other capacity, to Sir Alexander Cochrane, who was then out of the kingdom, you will ask me, why did he then escape from the Rules? Gentlemen, I will tell you:--The fact is, though he was only in duress for .350; and although this gentleman who sits near him, who is his attorney, and will be called as a witness in the cause, was the princ.i.p.al creditor, who had been his surety for the Rules, he escaped from the Rules, under the apprehension that he should have detainers against him for four thousand pounds more. He asked this gentleman permission to go out of the Rules. I am not prepared to defend the act; but he was the only person who was beneficially interested in his remaining in the Rules; for he and Mr. Cochrane, in Fleet-street, having given this bail, the marshal of the King's Bench could, of course, come upon them for the amount of that sum; and I will prove to you, that he had the leave of this gentleman to go, and that this gentleman took the debt upon himself. He went to Sunderland, and afterwards to Leith; and he went there to avoid that which he was apprehensive of, namely, detention by his other creditors, to this very large amount.

Gentlemen, when we talk of prejudice upon this subject, this very thing has been attempted to-day to be put upon his lords.h.i.+p; and you, as a matter of prejudice against Mr. De Berenger, namely, that Mr. Tahourdin, who was attorney for Mr. Cochrane Johnstone, and Mr. Cochrane (a relation as it was supposed of this family, or there was no sense in it) were his bail. But, gentlemen, Mr. Broochooft has negatived the fact; he states that he did not even know Mr. Cochrane Johnstone. Mr. Tahourdin was a creditor of Mr. De Berenger to the amount of four thousand pounds, but he had so good an opinion of him that he consented to his liberating himself; and as to the other security, Mr. Cochrane the bookseller, he is no more a relation of the family of Dundonald, than I who do not know the persons of any of them; but he is a friend of Mr. Tahourdin, whose sister is married to Mr. White, Mr. Cochrane's partner; that is the history of the transaction on which it is supposed that Mr. Cochrane Johnstone has been putting in bail, because Mr. Tahourdin was his attorney; but it will appear that bail was put in two years ago, and that Mr. Tahourdin did not become acquainted with Mr. Cochrane Johnstone till long after that time.

Gentlemen, there have been other prejudices attempted here; they are prejudices that I think could never have entered into the mind of any liberal man; they must have entered first into the minds of the Stock Exchange Committee, for no gentleman could think of such a thing; that which I refer to is, that which my learned friend the Serjeant has commented upon, the proof of Mr. De Berenger being a friend of Mr.

Cochrane Johnstone, from the circ.u.mstance of his dining with the family.