Part 90 (2/2)

Gentlemen, is every one who dines there to be considered as a conspirator? they are not a committee sitting over their bottle and hatching this infamy; but it appears that he dined twice at the house of Mr. Basil Cochrane (who is not implicated in this), not alone, but with Sir Alexander Cochrane, and a great number of ladies and gentlemen; and at another time Mr. De Berenger and Mr. Cochrane Johnstone also dined at Mr. Basil Cochrane's.

Gentlemen, I am told, and I believe, after what I have heard in this cause, for I have heard it from Mr. Murray, that Mr. De Berenger is a man of great abilities; his Society and his company were much courted till his misfortunes put him out of the general run of society; was there ever such a thing attempted till this moment, as that you were from such circ.u.mstance to prove a conspiracy as against these persons?

On what ground can it be said that his connexion with Mr. Cochrane Johnstone is a matter of complaint against him? I have proved what it was; I have proved, out of the mouth of Mr. Murray, and shall prove again if necessary, that the meeting of these gentlemen there was not a meeting of business; was there any thing in the conversation when Mr. De Berenger came in, in the presence of Mr. Harrison, that gives the least suspicion of a connexion with Mr. Cochrane Johnstone? it appears only, that he being an ingenious man, engaged himself in this Ranelagh that was building, from which it was expected (probably it will terminate in nothing) by Mr. Cochrane Johnstone, that he would derive great benefit; this gentleman, being consulted on the plan first proposed, recommended another from which he conceived Mr. Cochrane Johnstone would make a great deal more money; there is nothing in the connexion more than that.

Are you from that circ.u.mstance to infer that this gentleman was guilty of any conspiracy? as to any negociation on this subject, you hear nothing nor see nothing. You do not find him at any one period of time with Mr. Cochrane Johnstone. You hear of his dining twice in company with him at the house of Mr. Basil Cochrane; you do not hear of him at all there, except about this Ranelagh; but you are desired from that to infer criminality.

But gentlemen, this is a most important transaction; my learned friend has told you he will more satisfactorily explain it by the evidence upon the subject; there is no doubt of the gentleman who sits before me being in distress of circ.u.mstances, but at the same time a most ingenious man; and having done various works of art for Mr. Cochrane Johnston, the latter thought himself indebted to him about two hundred pounds, and paid him the money. Gentlemen, all I can say upon this is, that there is no conspiracy amongst us here, for I do a.s.sure you, that until I came into this place, and saw my learned friends, except my learned friend Mr. Topping, with whom I had spoken on the subject, I did not know that the others were concerned for the defendants upon this occasion; but I hear my learned friend state that which I trust he has the means of proving, but which my unfortunate client has not, not only because many of his papers have been immediately taken from him by the messenger, in the manner described, but because he is himself a close prisoner in Newgate, under a warrant of the Alien Office, and therefore has not the same means and opportunity of conferring with his Counsel; for I have never placed myself in that situation, and do not mean hastily to go there, for it is not a very agreeable service, and I would take no man's retainer, if I thought that I must do so; there has not therefore been that communication which we should have had, if our client had been a free man. But I shall prove by some witnesses of my own, that which will give a considerable colour to my case, and shall pray in aid all the evidence given by any other witnesses on this side of the question.

Gentlemen, before I leave this part of the case, I would wish also to remind you that we have had another piece of evidence given against my unfortunate client, by a man of the name of Le Marchant. I will venture to say, and I hope you have observed, that a much more extraordinary witness never did present himself in that box. It does not become me (and I am the last man to do it) to arraign any one act of His Majesty's ministers, but I believe that the exhibition made this day in the presence of some of His Majesty's ministers, will have been sufficient to set aside any intention of sending him out under an appointment, if it ever prevailed in their minds; for I do say, I think he would disgrace any country from which he was sent on any public business whatever; I think he would not be long in any situation, before he disgraced himself as a man, and brought disgrace upon those who employed him. But gentlemen, I do not know whether you observed another thing, which is, that he shot out of court as if he had had a sword stuck into him, and appeared no more; I never saw any thing so marked as his conduct was upon that occasion.

My learned friend has called your attention to his letter, which I never saw till he read it; my client was protesting against his testimony; but I cannot call him as a witness against this man's evidence, which Mr.

Richardson endeavoured by his cross-examination to alter, because it was our duty to endeavour to get some alteration of that evidence, not knowing how he had conducted himself. I do earnestly beg of you to recall to your attention, the answers he gave to my learned friend, the Serjeant; did he not positively say upon that examination, that he was only kept by His Majesty's ministers in this country to give evidence, and that he had not given his evidence at all from a feeling of resentment, because Lord Cochrane had not complied with his request in giving him money. Gentlemen, when this correspondence comes to be read by his lords.h.i.+p's officer, is it possible you can believe one word of that; he in this letter, which is the last my learned friend stated, and the only one on which I will comment, stated that he believed every thing that De Berenger had told him respecting Lord Cochrane, was false.

If it was all false, as it respected Lord Cochrane, it was all false as it respected himself, for this man had no time-bargains as the other gentlemen had, he was to derive no immediate benefit, except as you believe that man. I beg your particular attention to that, that he is the only person who swears to his having a per centage in this matter. I think I am correct in that statement, that Le Marchant is the only person who says De Berenger told him that he was to have a per centage upon the stock. Now gentlemen, this conversation having been on the 14th of February, seven days before this transaction, he makes the observation in this letter, that he verily believes that every thing De Berenger told him respecting Lord Cochrane was false.

If it was all false, it must be false with respect to De Berenger himself, and according to his own statement he must have invented this story, merely to implicate Lord Cochrane in the transaction; it is absurd gentlemen not to speak to you as men of understandings. Do you believe that this letter has any other sense, than give me so much money, or I will do so and so? After threatening him, he says, ”As for my part, I now consider all that man told me to be diabolically false,”

and then without even a new paragraph in his letter, ”If my conduct meets your approbation;” what conduct meets his approbation, that he would say in all places and at all times that this man's statement was diabolically false, as far as respected Lord Cochrane; ”Can I ask a reciprocal favour, as a temporary loan, on security being given;” then he goes on to say, ”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.” And then, because Lord Cochrane most wisely refuses to comply with this request, we have this man set up in the box, to tell you this supposed story of De Berenger, which De Berenger has no means of contradicting; but which I say is so incredible, and so contradicted by the letter under his own hand, that I think jurymen, if it stood upon his testimony alone, or even supported by one or two witnesses to other things, would do most unrighteously if they convicted upon such testimony as that fellow has given, for I never saw a man so disgrace himself as he done.

Now gentlemen, with respect to the proof of Mr. De Berenger's hand writing, as to those things which were found in his box. I put Mr.

Lavie's evidence out of the question; at first his lords.h.i.+p put it, that it was slight evidence; but that it was evidence subject to my observations, the thing being found upon him; gentlemen, supposing there was no evidence of his hand-writing, I can only say he must be well clothed in innocence who can escape, if a man is to be convicted, merely because a paper is found upon him; if a man writes to me a paper containing matter of a criminal nature, and I happen not to destroy it, I must immediately be convicted. I do not mean that his Lords.h.i.+p has said so; but if I am to be convicted because a paper is found upon me, then a man may be in danger from every letter he receives from a correspondent; I am sorry to say that I receive a great many letters which I do not answer; but does my possession of the letters give ground for inferring an approval of all contained in those letters. If you were to convict this gentleman on account of any memorandums found in his possession, because they are found there, I do think a great injustice indeed would be worked.

But, gentlemen, Mr. Lavie has proved his hand-writing. I shall call witnesses to contradict Mr. Lavie; but do not misunderstand me, I believe Mr. Lavie to be a very honourable person, and one who would not tell you a falsehood; but I say he has not the means of knowledge. I can only say, gentleman, that a man must be much more attentive to hands-writing than most of the persons of my profession, in which I include Mr. Lavie, if he can swear to a hand-writing, because he has seen that hand-writing once. I have seen my learned friends near me write many times, but I could not swear to their hands-writing; if I saw a very bad hand indeed, I should say it was Mr. Serjeant Best's; but let me caution you; you are trying these defendants for a conspiracy; you are trying them for a crime of the greatest and most enormous magnitude; you are trying them for an offence that will shut these gentlemen, if you find them guilty, out of the pale of all honourable and decent society; and therefore, though this subject is one, which, from the singularity of it, may create a smile, it is a matter which you will not smile upon when you come to p.r.o.nounce your verdict; because upon your verdict must the happiness of these gentlemen depend. Will you, upon the evidence of Mr. Lavie, honourable as may believe him to be, and just as you may believe him to be, say that he has those means of knowledge which he professes to have.

Gentlemen, I am placed in a very awkward situation as to that paper, which my client a.s.sures me he never saw, and I mean to call witnesses to prove, that he is not the writer of it; I do not think it necessary, but I will do it, for it shall not rest upon me that I have not done my duty. But I am placed in an awkward situation as to the hand-writing; I do not complain of it, but the witnesses into whose hands I must put that paper, have never seen it. Mr. Lavie has seen it; he has had an opportunity of conning it over; but I think he might have done better than to have given his own testimony of this Mr. de Berenger's writing.

Mr. de Berenger is not an obscure man in the city of London; he has lived in this country twenty-five years; he tells me there was no man acquainted with his hand-writing, who could be called to prove this to be his hand-writing; and that no witness to speak to that could be found; but Mr. Lavie went to him improperly; for the Stock Exchange had no more right to break in upon Mr. de Berenger, at the Parliament-street coffee-house, than any one of you. I say it was an impertinent intrusion; this gentleman was brought up on a warrant not respecting this affair, but on a warrant from the Secretary of State, whilst he was fatigued and tired, as he stated to the messenger; still most disgracefully the messenger allowed Mr. Lavie and the Stock Exchange Committee to pump him upon this matter. How the hand-writing is attempted to be proved, it does not become me to say further; but I put papers into the hand of Mr. Lavie, the hand-writing of which, if they be of the hand-writing of Mr. De Berenger, I will venture to say that the paper lying before his Lords.h.i.+p is not; because I have eyes as well as Mr. Lavie has; and I think I can speak to any hand-writing as well as he can. I say it is not the same hand-writing as these, if my eyes do not deceive me; and I shall put it into the hands of persons who have known Mr. De. Berenger long, and they shall say whether it be his hand-writing or not. Gentlemen, if it be not his hand-writing, which I must a.s.sume, I say the whole of that Dover case falls to the ground; because the main sheet-anchor of the whole of the Dover case is that paper. Why do I say so? Because all the witnesses who have come from the s.h.i.+p Inn at Dover, Marsh, Gerely, Edis, (Wright is not here, being ill;) these men one and all, speak to the person called Du Bourg, as being the person who sent this letter, as aid-de-camp to Lord Cathcart; they all say it was this man, as they believe, that wrote that letter, and sent it off to Admiral Foley. I say, gentleman, that story, as applied to Mr. De Berenger, falls to the ground, if that letter was not the hand-writing of Mr. De Berenger; inasmuch as the letter is now supposed to be traced into the hands of Admiral Foley, from the s.h.i.+p Inn at Dover, by the conveyance of the little boy. If Mr. De Berenger was not the writer of it, then Mr. De Berenger was not the man who was at that inn.

Gentlemen, it was said by Mr. Gurney in his opening, that he should call the landlord and landlady of the house at which Mr. De Berenger lodged, to prove that he did not sleep at home that night; but they have proved no such thing. I expected, from my learned friend's statement of it, and I am sure he expected it, or he would not have so stated it, that they would have proved that. The man says, he does not know who comes in and who goes out, being the clerk of a stockbroker, and being a good deal out; he says, Mr. De Berenger comes in without their interference; he has his own servants; and all he reasons from is the fact, that he did not hear him blow his French horn at eight or nine o'clock on the Monday morning, which I shall prove to you he could not do, for that Mr.

De Berenger went out to Lord Cochrane's at eight o'clock. These people do not swear, that he did not sleep at home; all they say is, that they do not know whether he was at home or not.

Now, Gentlemen, upon the subject upon which I am about to address you, I do not think it absolutely necessary to go into it; and I should not at this hour in the morning call evidence, but in a matter so highly penal as this is, and where I am placed in so delicate a situation, and in which, thank G.o.d, I can very seldom be placed, I do not think it right to act on my own judgment, where my client a.s.sures me that he was not the man, and is an innocent person; and that he is determined (because he knows perfectly well that what he says is the truth) to have his witnesses called; he shall have those witnesses called, for I chuse to have no responsibility cast upon me that does not belong to my situation. Gentlemen, I shall prove to you most completely that which will dispose of the case, if it is believed. I trust I have already shewn, that it is a case depending upon such frail testimony, as it stands, that it is not worthy of any degree of credit. But I am instructed, that I shall be able to call five or six witnesses, who all saw this gentleman in London, at an hour which was impossible, consistently with the case for the prosecution, and who have no interest, and had better means of knowledge than those who have been called before you.

Gentlemen, I do not mean to say those witnesses who have been called before you have been perjured; but I mean to say, they had not the same means of knowledge with my witnesses; and that, except one of them, or two at the utmost, they had not the day light to a.s.sist them in observations they made upon this traveller. Be so good as to recollect the circ.u.mstances under which he was supposed to have come to Dover; he is found knocking at the door of the s.h.i.+p Inn, about one in the morning; the man belonging to the opposite house, having been carousing there at a most astonis.h.i.+ngly late hour for a reputable tradesman, in the town of Dover, the hatter, the cooper, and the landlord, being sitting together, hear a knocking at the door; and they find a man in the pa.s.sage of the house. Whom do they find there? a man dressed in the manner you have heard described; but the person who sees him, and holds the candle in the pa.s.sage, has a very short conversation with him; the whole time he saw him did not exceed five minutes, and in that time he went up to call the landlord; he put the pen, ink and paper, into his room, and then he left him; he did not see him without his cap, and yet he swears he is the man; and he is not singular in that, for there are many others swear to the same.

Gentlemen, it is a prejudice my client has to encounter, that we have been engaged in this case seventeen hours; and that my learned friend, Mr. Gurney, who opened the case, was in the full possession of his powers, and that he has in a measure forestalled your minds by the evidence he has given, and that the evidence given by me has to eradicate the impressions which his statements and his evidence have made. Gentlemen, I put questions to one of the witnesses which his lords.h.i.+p thought were not of any weight, and _per se_ they were not strong; but when we are proving ident.i.ty every little circ.u.mstance goes to the question, aye or no; we had some witnesses swearing to a slouch cap, one which comes over the eyes, and another swearing that it was like the coat, _grey_; another that it was a dark brown. If the _fac simile_ is correct, there are discordances in the evidence which raise a suspicion in my mind, a suspicion not that the witnesses are perjuring themselves, but that they had not sufficient means of knowledge upon the subject; and that you are called upon to convict this gentleman of a base and infamous crime, from which, except from the evidence of Le Marchant, he was to derive no benefit unless the .400 was a _bonus_, and that upon the evidence of witnesses, who, however respectable, had very little means of observation; for it was not day light hardly even when they left Dartford; and the morning we hear was a foggy morning, and therefore, except s.h.i.+lling's evidence, we have not evidence that this is the man in _day light_; we have no evidence of any persons who saw him in daylight, and identify him as being the person who came from Dover to London; s.h.i.+lling's evidence I admit, is, as to his seeing him in day light, and his evidence is extremely strong undoubtedly.

Gentlemen, I am quite aware, though I have not practised a great deal in criminal courts, that the evidence of an _alibi_, as we call it, that is evidence to prove that the person was not upon the spot, is always evidence of a very suspicious nature; it is always to be watched therefore; but I am sure that I shall have his lords.h.i.+p's sanction for this; that if the witnesses to be called have all the means of knowledge upon the subject, if the generality of them have no interest at all in the matter of discussion, and if they prove the _alibi_ satisfactorily, there is no evidence more complete than that of _alibi_, and that _alibi_ will produce advantage in favour of the person who sets it up, according to the nature of that case which is made against him; and if it be merely circ.u.mstantial evidence, although that is in some cases much stronger than positive testimony, yet if the evidence against that person is chiefly mere evidence of ident.i.ty of person, I say that the proof of the _alibi_ will receive stronger confirmation, if those witnesses who undertake to identify have not had sufficient means of knowledge upon the subject.

Hear then, Gentlemen, how I shall prove this case. This person, by the consent of his bail, Mr. Tahourdin, as I have told you, was continually soliciting for the situation he was desirous of obtaining, for the purpose of going out to America under Sir Alexander Cochrane; he was therefore continually violating the rules; and in order to do that with safety, he used to go down a pa.s.sage and take water, instead of crossing Westminster Bridge; because he thought that on Westminster Bridge he should be more likely to be met by the officers, and so more likely to get to the ears of the marshal, so as to lose the benefit of the rules; he was well known to the usual watermen plying there; and I have two watermen here, who will prove to you that on that Sunday morning, which was the first Sunday after the frost broke up, so as to open the river Thames, which had been shut a considerable time, that on the first Sunday after, namely, the 20th of February, this gentleman crossed at that ferry to go over to the Westminster side. Gentlemen, I shall prove to you, that in the course of that day he was at Chelsea; he had been known at Chelsea, having lived there for a considerable time before he was in the rules of the Bench. I will prove that he had called at a house which I will not name, because we shall have that from the witnesses from whence the stage coaches go; that the ostler at that house perfectly well knew him, and that he knew his servant; that he told him the coach had gone off at an early hour in the evening, and there was no coach to go for some time; he will tell you, that he knew this gentleman, and is positively sure that he was there. I shall prove that he went to another house in the course of that evening; and I have two or three of the members of that family who saw and conversed with him between eight and nine in the evening of the Sunday, so that by the course of time, it was absolutely impossible that he could have been at Dover by one in the morning, if he had been at this gentleman's house at eight in the evening. I shall prove that after that he went home to his lodgings. I shall prove that he slept in his lodgings; that his bed was in the morning made by his maid servant; that he constantly slept at home, and that he did that night. I have his servants here who will prove these facts. I allow that he went out that morning, and went out in regimentals, which they will describe to you, and went to Lord Cochrane's upon the errand I have described to you.

Now, Gentlemen, in addition to that, there will be the evidence to be given by my learned friend, Mr. Serjeant Best, which I have a right, as far as it applies to Mr. De Berenger, to pray in aid for him. Does it not immediately go to shew, that it is impossible, but that these persons who have been examined for the prosecution, must have been mistaken? I do not ask you to presume that these persons have knowingly said what is not true; but this made a great noise, and persons were sent to see Mr. De Berenger, and from some similarity of person believed him to be the man. I do not indeed believe the account given by one of the witnesses, Mr. St. John; he told a story the most singular, that he being the collector of an Irish charitable society, with no other means of livelihood, found himself at Dover searching for news, by desire of the editor of a newspaper, and he was afterwards on coming up, sent to Newgate to see Mr. De Berenger, who was exposed to the view of every person who chose to look at him. Mr. De Berenger was fixed upon as the man, and you are asked to presume that he fled, because he knew he was the man. Gentlemen, you will take all these circ.u.mstances into your consideration, and they will account for the mistake in the testimony of the witnesses for the prosecution; but St. John tells you, that he found himself by _accident_ at Westminster. I do not call that an accident at all, for it appears that he walked down to Westminster to see his person; he went and took a good view of his person, when he was standing upon the floor of the court of King's Bench, pleading to his indictment, for being in custody he must be brought into court to plead to it; this fellow says, he was not in court, but he put his head within the curtain, where he could see this gentleman, he heard the officer read to him, and he says that he answered something; I do not care whether he heard what pa.s.sed, he saw sufficient to know that he was the person in custody. I cannot, under these circ.u.mstances, believe this fellow when he tells you, that he went by _accident_ down to Westminster, for it appears evidently that he went by _design_. I say there is a readiness and a desire on the part of the Stock Exchange, to follow this up, I think, with an improper spirit.

Gentlemen, we have had this case dressed up to-day; and it has been attempted to induce you to believe, that the transactions of the Stock Exchange were all laudable. Gentlemen, I say they are infamous; but my learned friend would persuade you, that all the infamy rests upon those who deceived these poor creatures. It is very true, as his lords.h.i.+p says, the circulation of a false report is not innocent, for that may operate against you or me going fairly to buy stock; but I think there has been an excess of zeal on this business; some of these witnesses were carried to Mr. Wood's, at Westminster, and they all fixed upon Mr.

De Berenger, not corruptly, but in consequence of being carried there, and his being pointed out as the man by Mr. Lavie and some of his clerks; they come readily enough and fix upon him; the deaf man not so easily, but at last he did it too; and it struck me, the question I put to that deaf man was extremely relevant. I cannot tell by a witness's face whether he is merely an actor or not, and especially when my instructions tell me he is mistaken; I wished therefore to know, whether he was not looking round the court to give it the air of probability, and whether he had been standing behind, so as to see the others point out Mr. De Berenger, whom they all knew, because most of them had seen him since that time; some of them had not I admit; he is a soldierly-looking man, and a man likely from the description to be fixed upon. My learned friend seemed to think that one of the witnesses had not a fair opportunity of seeing his person, in consequence of his holding down his head; the fact was, he was taking notes (for he has taken a very full note); but without meaning to do anything improper, I said, hold up your head, and he did so immediately; his recognizance was to appear here to-day, not fearing to have all enquiry made respecting him and as it appeared to me; he did not on any one occasion attempt to conceal his person from their observation, I do say, gentlemen, that the means of knowledge of these witnesses are so slight, that if I call witnesses to prove, not by vague surmise, never having seen him before, that he was in their society and company that evening so late, as to render it impossible that he should have been at Dover that night. But supposing that the evidence of _alibi_ should not be satisfactory, it then comes back to the other observations made in the prior part of the defence.

Gentlemen, this is the general nature of the defence I have to make to you. You will, I have no doubt, endeavour to free yourselves from all prejudice infused into your minds; and will come to your conclusion with a desire to do justice. And I trust that you will, in the result of this long hearing, be enabled to p.r.o.nounce, that this defendant, for whom I am counsel (not meaning by that to exclude any of the rest, but he is the only one committed to my care) is not guilty of the charge imputed to him.

MR. SERJEANT PELL.

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