Court of King's Bench.
Monday, 20 June 1814.
Mr. Gurney. I move your Lordships for the Judgment of the Court in the case of the King v. De Berenger, and others.
[The Officer called the Defendants, who appeared, excepting the Honourable Andrew Cochrane Johnstone, and Alexander M'Rae.]
Mr. Serjeant Best. Upon this occasion I appear only as Counsel for Mr. Butt; and before I make the motion which I feel myself called upon, under the circumstances of this case to make, I take the liberty to suggest to your Lordships, that if I should not succeed in my motion in arrest of judgment, there is a fact which was not proved at the trial, but which it was necessary to prove for the purpose of convicting these defendants upon any count of the indictment, in which it forms a material averment, namely, that there was war between England, and the Allies of England, and France.
Lord Ellenborough. I am afraid there are too many statutes which speak of war with France, for the Judges to allow themselves not to have cognizance of that objection.
Mr. Serjeant Best. But there is none, my Lord, which refers to any war between England, and the Allies of England, and France. Unfortunately it has been only of late that we have had Allies. I make this application on the part of Mr. Butt only, and I submit to your Lordships upon the counts on which this defendant has been convicted——
Lord Ellenborough. You appear now only for Mr. Butt?
Mr. Serjeant Best. I do, my Lord.
Lord Ellenborough. I have made a minute, that on the trial you told me you were Counsel for the second, third, and fourth, defendants, Lord Cochrane, Mr. Cochrane Johnstone, and Mr. Butt.
Mr. Serjeant Best. I am not now Counsel for Lord Cochrane, I am moving merely for Mr. Butt.
Lord Ellenborough. That is a new proceeding, that Counsel shall renounce some clients, in order to serve others.
Mr. Serjeant Best. My Lord, Lord Cochrane has desired me not to move on his behalf; and I may state so much for him, that he has no intention to move in arrest of judgment. My other client, Mr. Cochrane Johnstone, is not here.
Lord Ellenborough. If you move in arrest of judgment for one, all have the benefit of it.
Mr. Serjeant Best. My objections are three; first, taking the third count as it stands, (and the objections apply to every successive count in the indictment) that there is no body of crime alleged, no offence known to the law, the raising the price of the public funds not being necessarily a crime; In the second place, that if there be any crime, which is alleged, the persons who are to be affected by that crime are not particularized; My third objection is, that it is stated, that the object of the conspiracy was, to raise the price of the public funds of this kingdom: this kingdom being now the United Kingdom of Great Britain and Ireland, I conceive there is no kingdom of England, but that the kingdom of England is merged in the United Kingdom of Great Britain and Ireland, and I humbly conceive, nothing that is here charged has reference to any funds and government-securities, except the funds and government-securities of that part of the United Kingdom of Great Britain and Ireland, called England.
My Lords, I am aware of the extent to which the decisions pronounced on this subject have carried the doctrine, with respect to conspiracy; but I conceive it will not be found there is any adjudged case which goes so far as to reach this transaction, taking it as an abstract proposition, that the conspiracy was, to raise the price of the government funds of this country. Unless your Lordships can pronounce that the raising the price of the government funds of this country is a crime of itself, a conspiracy to raise the price of those funds cannot be a crime by itself; but in order to make it a crime, it is necessary to state some particular circumstance which gives it a criminal character.—I conceive nobody will be found to argue, that the raising the price of the public funds, without some side object, must be mischievous to the country, and therefore a crime; so far from that being the case, I conceive the higher the prices at which the government funds can be kept, except in particular cases, the better for the country, because it is upholding the credit of the country.
Mr. Justice Le Blanc. It is stated, that they were to be raised on a particular day.
Lord Ellenborough. By false reports and rumours.
Mr. Serjeant Best. An intention of doing that on a particular day, may be either a meritorious or a criminal action; but what I submit to your Lordships, is, that of itself, it is neither the one nor the other; it is therefore necessary to put on the record something which shall bring the fact within the purview of the law. It is not stated upon this record, that the defendants were possessed of any funds, that they were desirous of selling those funds, and that therefore they meditated a fraud on the particular persons to whom they should sell their funds, by raising the price;—it is merely stated, that the object was to raise the price of the funds, which I submit to your Lordships may be commendable or criminal.
One can conceive many circumstances in which this might be stated to be a public mischief, and some such circumstances were stated by my learned friend, who very ably opened this prosecution upon the trial. If the public funds were raised in price on a day on which the commissioners for reducing the national debt would make purchases, that would be an injury to the country, by the commissioners being enabled to purchase a smaller amount of stock for the same amount of money; but there is no allegation of the kind upon this indictment, and in no other way, do I conceive, could the public be injured. If the public had been injured, it was enough to have stated, that what was done, was done with a view to the injury of the public; but all that I find stated upon the record, is, that the defendants conspired and agreed together to raise the price of the public funds upon a given day; and the prosecutors knew there was no purchase made by the commissioners for reducing the national debt on that day; because, as I understand the fact to be, they never purchase on a Monday;—however, all that is material to me is, that the transaction is not so charged upon the face of the indictment. If I am right in this, I am persuaded your Lordships will be of opinion, that this is not an indictable offence.
If I am to be told, there is a distinction made between conspiracy and other offences, I submit to your Lordships, no distinction which has ever been made goes to a length which reaches the present case. I am aware many acts are made criminal, being accomplished by conspiracy, which accomplished by an individual only, would not be the subject of judicial animadversion; but I can find no case (and I have very carefully looked into all of them) which carries the principle on which the doctrine relating to conspiracy is founded further than this; that in conspiracy, though the means may be lawful, yet the end must be unlawful, either as it is mischievous to the public or to individuals; and I can state no case, in which parties have been held guilty of conspiracy, where the end they have had in view has not been either mischievous to the public, or at least to a specified class of individuals.
Looking back to the earlier statutes and cases on the subject of the law regarding conspiracy, your Lordships must collect, that neither the legislature nor the judges of the land had the least idea of embracing such a transaction as this, within their view of conspiracy. The older cases, in which the doctrine upon conspiracy has been applied, have been cases described by the statute of 21st Edward I. of persons who have conspired to instigate a criminal prosecution against an innocent individual, and of persons who, for the purpose of supporting their unlawful enterprises, have kept retainers in the country. In modern times, the decisions have come nearer to the present case; but I think I can satisfy your Lordships, there is none that reaches it.
The case in which the doctrine relating to conspiracy has travelled on, if I may so say, embracing a larger compass of acts, is that of the King v. Edwards, 8 Modern Reports, 320. In that case the doctrine laid down is, that a conspiracy to do a lawful act for effecting an unlawful end, is a crime. If the end be unlawful in this case, undoubtedly the endeavour to accomplish it was a crime. But I submit to your Lordships, as the act is stated upon the Record, the end is not unlawful, and that no case can be found which shews, that the end which these parties had in view was an unlawful end. Upon the principle of the case which I have mentioned, which goes far beyond the former cases on this subject, if I am right in stating, that per se there is nothing criminal in raising the price of the public funds, something must be added upon the record to make that act a crime.
Another case is that of The King v. Starling, 1 Siderfin, p. 174. It was an indictment for a conspiracy to depress what was called the gallon-trade, (that is, the practice of selling beer by the gallon) and thereby to cause the poor to mutiny, and to injure the farmers of excise; that was stated as the object of the conspirators. They were acquitted of that part of the charge which alleged an intention to cause the poor to mutiny; but found guilty of a design to injure the farmers of excise. The reporter says, after many debates it was adjudged, not that a conspiracy to injure the farmers of excise, speaking of them generally, was a crime—but, that the verdict relates to the information, the information relates to the excise, which is part of the revenue of the king; and to impoverish the farmers of excise would make them less able to pay the king his dues. And so the Court, in giving judgment, say, we must look at the record, to see if we can find out that what is charged upon the defendants be that which must necessarily produce a public mischief; and they say it does in this way; that the verdict relates to the information, and the information to the excise, which is part of the revenue of the country; and, as to impoverish the farmers of excise, would render them less able to pay the king his dues, there appears a public mischief on the face of the record itself. This I take to be a strong authority in my favour; for if the Court, after many debates as it is stated, and having given the subject every possible attention, came to the conclusion, that they were obliged to look at the record, to see whether the case stated on the record was one which necessarily connected the act done with some public mischief, we must necessarily infer from this, that the Court would have been of opinion, that unless that necessary connexion was established by the statement on the record, the judgment ought to be different. If I am not correct in this position, the Court had no occasion to look to the verdict and see whether it related to the information, and to the information, to see whether it had a relation to the revenue: the Court would have said, we must give judgment against the defendants, because it is stated upon this record, that the object of the defendants was, to impoverish the farmers of excise. It is by tracing back the thing itself, by shewing that the farmers of excise are thus made less able to pay their debts to the government, and therefore that the government was to be injured, that the act is constituted an offence.
There is another case, in Salkeld, 174, The King v. Best. The judgment of the Court in that case is, that several persons may lawfully meet and consult to prosecute a guilty person; otherwise, to charge a person who is innocent, right or wrong, would be indictable. The inference is, that upon a charge of conspiracy to do an act which in itself is perfectly innocent, which is not indictable, you must state something upon the face of the record, shewing a mischief connected with it, to make it indictable. I submit to your Lordships, there is nothing upon the face of this record, which does shew any mischief connected with the act which is made the subject of charge. In conspiracy as in every other offence, the means may be lawful; but in conspiracy, the end must be unlawful. It is this which constitutes the only distinction between cases of conspiracy and of any other crime; that although the means may be lawful, the end must necessarily be unlawful and mischievous. I say, it is impossible for your Lordships to collect from any part of this record, that the end sought to be obtained by these defendants was unlawful, as against any Act of Parliament or the positive decision of any Court; or unlawful, as generally mischievous to the public.
It is stated indeed upon these counts, that the act was mischievous to certain individuals; and if the individuals had been named, that would have answered my objection. But I submit to your Lordships, in support of the second proposition which I stated, that this offence, if it be any, is alleged in too general a way to convict any of the defendants. It would have been otherwise, if it had appeared that they were actuated by any malicious motive against those individuals, or had any clear intention of benefiting themselves at the expense of those individuals; and I may with safety to my client concede this, though I am not driven to it. On the contrary, I beg to state, it does not appear on this record, that the defendants could possibly gain any thing by what they are accused of having done; for it is not stated upon any of the counts, nor is it the fact, that they possessed one sixpenny worth of stock from the sale of which they could derive an advantage: they were therefore doing mischief without any purpose to answer by it.
Lord Ellenborough. Brother Best, was it possible to state that their purpose was to injure certain individual persons who should purchase stock, when by no possibility could they know who the persons were that would become purchasers? If that could have been stated, can you suggest any name which in any way might have been inserted?
Mr. Serjeant Best. I submit to your Lordship it might have been stated; and the evidence in the cause helps me to suggest an answer to your Lordship's question. Your Lordship will remember, that evidence was given of the accountant-general of the Court of Chancery having made purchases of stock on this day; it might have been stated on the face of this record, that it was known the accountant-general of the Court of Chancery would purchase stock on the day in question, for he purchased most days, and that the offence was committed with a view to injure the said accountant-general, or the persons in whose behalf he purchases.
Lord Ellenborough. I do not know, that in the course of his office he is directed to purchase on account of certain named individuals, on a given day; if he is not, even so the allegation could not be precise.
Mr. Serjeant Best. The stock is purchased, my Lord, to the credit of a particular cause, the accountant-general being the agent in the transaction for the suitors in that cause. Therefore the allegation might have been, that it was to injure the accountant-general, in his character of agent for those persons on whose behalf he purchased stock on the particular day. And this brings us to the true character of conspiracy. I submit to your Lordship, this act could only be made conspiracy, by shewing that the defendants possessed stock, and by stating on the indictment, that possessing stock, they conspired to raise the price of the funds on a particular day, and that when raised, they sold their stock to certain persons specified. Suppose they knew of persons who were going to purchase on this day, and with a view to make those persons pay more than they otherwise would, they did that which is charged upon this indictment; that would clearly be an indictable offence. It is not the difficulty of bringing the case within the law that furnishes an answer to the objection; if the law is defective, your Lordship would recommend it to the Legislature to remedy the defect, by making a new law.
Lord Ellenborough. Impossibility is some answer in point of law.
Mr. Serjeant Best. Your Lordships may be protecting gamblers as infamous as any of these defendants; you may be giving your support to prosecutions instituted by one set of gamblers against another, if this indictment is supported. A fair holder of stock could have no difficulty in coming by indictment, and stating, I was compelled by circumstances to lay out a sum of money in the public funds on a given day, the day on which this transaction took place, and I paid so much per cent. more for what I bought. If it is necessary to constitute conspiracy, that the intent be to injure that person who in the event is injured, then it is impossible to support this indictment. I put it most strongly against my clients when I say, they meditated a fraud upon all who should purchase stock on this day; but to use the criminal law of this country, for the protection of those who honestly purchase stock, and not to support a prosecution brought by one set of gamblers against another, your Lordships will require it to be stated on the face of the indictment, who they were that were injured.
Mr. Justice Bayley. Suppose the conspiracy had been stated in the way it is, but the allegation had gone on; that by reason of the said conspiracy, A. B. and C. who on that day were obliged to purchase stock, were obliged to pay a larger sum than they otherwise would have paid?
Mr. Serjeant Best. That would have answered my objection, and that is the way in which it should have been stated; because then your Lordships would see, you were raising the arm of criminal justice to protect those who were the objects of its protection.
Lord Ellenborough. Your argument goes upon this supposition, that the description of persons to be affected by a criminal act, may lessen its criminality, which it does not.
Mr. Serjeant Best. But I submit to your Lordship, there must be something to be gained on the part of the actors, moving them to injure those who are capable of being injured by the act which is done. No such thing is stated upon any part of the indictment. A conspiracy may be complete without any act, but there must be an intention. I say, the intention here, is too generally stated; strike out all but the words, "conspired to raise the price of the public funds," and I ask your Lordships whether it would be possible to pronounce any judgment upon it.
Mr. Justice Dampier. How could the object have been stated with more particularity, with reference to a future event, than that it was to raise the price of the public funds?
Mr. Serjeant Best. I do not state it to be necessary that any damage should actually follow, but damage must be meditated by the conspirators, either a damage which aims at the public at large, or at some individual. It could not have been stated, nor is it stated, that any damage was aimed at the public at large; was any meditated against a part of the public? they must be individuals.
Mr. Justice Dampier. All the public could not be named; and individuals could not be named, because of the impossibility of knowing the individuals.
Mr. Serjeant Best. I submit to your Lordship there could be no difficulty in that. If the indictment had been preferred before the 21st February, your Lordship's observation would be unanswerable; but after that period, the prosecutors could have no difficulty in obtaining the names of individual purchasers from the books of the Stock Exchange.
Mr. Justice Dampier. The crime was complete before the 21st of February.
Mr. Justice Le Blanc. If the conspiracy was, by false rumours to raise the price of the public funds on a certain day, with a view to oblige persons who should purchase into the funds on that day to pay an increased price, the crime would be complete if the funds were raised on that day, though no person should purchase a halfpenny-worth of stock; in like manner as conspiring to raise the price of commodities in a market, though no person should purchase, would still be a crime.
Mr. Serjeant Best. The commodities in a market are articles of necessity, which, I apprehend, makes a distinction.
Lord Ellenborough. Whether it be an article of necessity, or if universal sale, comes to the same thing. Besides, as to not stating the multitude, one would think we had forgotten the number of cases which have been decided on charges which are in their nature multitudinous; as for instance in barratry, or the inciting persons to institute and maintain suits; in those instances you need not state the individuals injured.
Mr. Serjeant Best. The instances of barratry and of common scolds, I believe, are the only exceptions.
Lord Ellenborough. By no means; I remember a case in which it was held, that where the circumstances cannot be conveniently specified upon the record, the necessity forms the exception.
Mr. Serjeant Best. But in all those cases your Lordship will find the excuse is stated upon the record; as ignotum, where an unknown person has been murdered.
Lord Ellenborough. In this case the nature and reason of the thing suggest the excuse, or one must reject one's common sense. The nature and reason of the thing form an exception, if it could be necessary to state the name of an individual, as having suffered from an act of this kind; but it is the tendency of the act, not the success of it, that constitutes the crime. If there had been an apprehension of pestilence or commotion, which made it unsafe to resort to the Stock Exchange on the day on which the fraud was practised, the crime would have been as complete by the conspiracy, as it was by the damage sustained by individuals who suffered under it.
Mr. Serjeant Best. In whatever way your Lordships dispose of these objections, I shall be satisfied. I am sure your Lordships will excuse my mentioning, in a case of this sort, The King v. Robe, 2d Strange, p. 999, though it is not a case of conspiracy.
Lord Ellenborough. No doubt they ought in that case to have specified the persons, they had the means of stating every one of them. The offence did not consist in the combination, but in doing the very act they combined to do.
Mr. Serjeant Best. Another objection which applies to all the counts is, that it is stated, the intention was to produce a great rise in the Government funds of this kingdom. It appears clearly on the face of this record that the intention was very different; in fact there are no general Government funds belonging to the United Kingdom of Great Britain and Ireland.
Mr. Justice Bayley. But there are British and Irish funds?
Mr. Serjeant Best. Certainly, but that is not the allegation; the allegation is, that it was with a view to raise the funds of this kingdom, which supposes there are general funds of Great Britain and Ireland; whereas the funds of each are entirely distinct, and of that your Lordships will take notice, because there are Acts of Parliament which speak of the British and Irish funds separately. Therefore I submit to your Lordships, it is impossible those defendants could contemplate the mischief with which the count concludes.
Lord Ellenborough. In a large sense, the Irish funds are funds of this kingdom, and so are the British; they are each a part of the resources and means of the United Kingdom.
Mr. Serjeant Best. It is impossible they should have had in view the Irish funds.
Lord Ellenborough. Why not? I believe the Irish funds are saleable upon the Stock Exchange as well as the British. The interest is payable in this country, and the great money-market is here; and I believe full as much is done in the Irish funds here as in Ireland.
Mr. Serjeant Best. I am unacquainted with the fact; still I insist, that those funds could not be called the funds of this kingdom?
Lord Ellenborough. I think they could not be correctly called otherwise; they are funds of the kingdom in a large sense.
Mr. Serjeant Best. A very large part of the Irish funds were not raised by the United Parliament; and they have been kept distinct ever since the Union.
Lord Ellenborough. They may be distinctly arranged, and the application of them may have been in different ways; but still they are a part of one whole, they are a part of the stock and revenues of the United Kingdom.
Mr. Park,
My Lords, I am counsel for Mr. De Berenger alone. The first two general grounds of objection, my learned friend has argued very fully, and I shall not trouble your Lordships upon them; but I confess there seems to me to be a great deal of weight in the last objection. Your Lordship will recollect, the beginning of this indictment states His Majesty to be (as the Act of Parliament requires he shall be stated) the King of the United Kingdom of Great Britain and Ireland. The very first article of Union requires, that after a day specified, the kingdoms of Great Britain and Ireland shall be called the United Kingdom of Great Britain and Ireland. Throughout this indictment, in all the counts except the last, the offence charged is stated to have been committed for the purpose of creating a rise in price of the funds of this kingdom. Now your Lordships perhaps may not be aware, that in the seventh article of Union it is expressly provided, that the funds of the United Kingdom, forming the separate funds of the two kingdoms, shall continue to be kept distinct. But after the indictment has stated His Majesty as King of this kingdom, which can only mean of the United Kingdom, then what is stated of the funds of this kingdom, can only relate to funds of the United Kingdom; not in the large sense in which your Lordship considers them, as forming a part of the funds of the United Kingdom, but in the same sense the general funds of the United Kingdom, as His Majesty is stated to be the King of this kingdom; whereas by the articles of Union, the funds of the United Kingdom are to be considered two distinct funds.
Mr. Justice Dampier. Then the statement relates to a fund, which, by law, can have no existence.
Mr. Park. That may be, my Lord.
Mr. Justice Dampier. If it could by possibility relate to no other fund, the objection might be a good one; but there is a sense in which it does relate to the funds of the United Kingdom, distributively considered.
Lord Ellenborough. It is a description applicable to a new state of society, namely, to the aggregate kingdoms of Great Britain and Ireland; and the funds of the Kingdom are the funds of the United Kingdom.
Mr. Park. I only mention this to draw your Lordship's attention to the statute, in addition to the observations which my learned friend has made. Before I sit down, your Lordship will give me leave to suggest to the Court, upon the motion for a new trial, in addition to what the learned Serjeant threw out, an observation founded upon the Russian cases, where an Order of Council was stated, which your Lordships decided you could not take judicial notice of, that there was no proof of the falsehood of the rumours by which, they say, the price of the funds was to be raised.
Lord Ellenborough. But there was proof of the fabrication of them.
Mr. Serjeant Pell. On the part of Mr. Holloway, Mr. Random, and Mr. Lyte, I am not disposed to trouble your lordships with any observations in arrest of judgment.
Lord Ellenborough. Does Lord Cochrane wish to address any thing to the Court?
Lord Cochrane. My Lord, I am desirous, previously to your passing judgment upon this matter, that I should have an opportunity of explaining those things which I deem essential to be brought under your consideration.
Lord Ellenborough. If you mean to offer any observations in arrest of judgment, this is the proper time; we will afterwards hear, as a distinct thing, whatever may occur to you as fit to be presented to the Court, to induce them to grant a new trial; that is probably your object.
Lord Cochrane. I do not move in arrest of judgment.
Lord Ellenborough,
I am perfectly clear there is no ground for the motion in arrest of judgment, and that a public mischief is stated as being the object of this conspiracy. The conspiracy is, by false rumours to raise the price of the public funds and securities; that crime is committed in the act of conspiracy, concert, and combination, to effect the purpose, and the offence would have been completed even if it had not been pursued to its consequences, or from circumstances the conspirators had not been able to effect it. And the purpose is in its nature mischievous; it is one which strikes at the value of a vendable article in the market, and if it gives a fictitious value, by means of false rumours, it is a fraud on all who may by possibility have to do with that article; it is a fraud on all the public who may have to do with the funds on the day to which the conspiracy applies.
It seems to me quite unnecessary to specify the persons who became purchasers of stock, for without the gift of prophecy how could the defendants know who would be purchasers on a succeeding day? The impossibility is the excuse; besides if it were possible, the multitude is an excuse in point of law. But such a statement is wholly unnecessary, the conspiracy being complete independently of any persons becoming purchasers.
Mr. Justice Le Blanc,
The motion in arrest of judgment has been made upon three grounds; the first, that it is no crime in itself to raise the price of the public funds, and that we are to look to the indictment to see what is the mischief charged. The charge in the indictment is a conspiracy by false rumours to raise the price of the public funds on a particular day. I admit that the simple fact of raising or lowering the public funds is no crime. A man having a necessary occasion to sell a large sum out of the stocks, though it may have the effect of depressing the funds on that day; or to purchase a large sum, though he thereby raises the funds, commits no offence. But if a number of persons conspire to raise the funds on a particular day by spreading false rumours, that is an offence, and the offence consists in raising the funds by false rumours on that day, not in the simple act of raising the funds.
The next objection is, that the indictment states a purpose to defraud, without naming the persons who were to be defrauded. From the nature of the case, persons could not be named; the offence was a conspiracy on a previous day, to raise the price of the funds upon a future day. It was therefore uncertain who would be the purchasers; but the object was, that the price of the funds should be raised to all who should become purchasers on that day, and could not be aimed at particular individuals. The offence was general, in the same manner as if a false rumour were spread previous to a market-day, to raise the price of some commodity which should be brought to market.
A further objection is, that the indictment refers to the funds of this kingdom, and that since the Union, this kingdom can only mean the United Kingdom of Great Britain and Ireland. But although particular sums may be applied to the particular service of one or the other part of the United Kingdom, yet the public funds of either part are funds of the United Kingdom, and go in furtherance of the general service of the United Kingdom. It appears to me there is no reason why this judgment should be arrested.
Mr. Justice Bayley,
If the question admitted of any doubt, I should be desirous of giving the defendants the advantage of that doubt; but it seems to me perfectly clear, that there is no foundation for any one of the objections that have been made. To raise the funds may be an innocent thing; but a conspiracy to raise the funds by illegal means, and with an illegal view, is, as it seems to me, a crime; a crime which might perhaps affect the public in its aggregate capacity; but which, if it take effect, will certainly prejudice a class of His Majesty's subjects; and it is not necessary to constitute a crime, that it should be prejudicial to the public in its aggregate character, or to all of His Majesty's subjects, it is sufficient if it be prejudicial to a class of His Majesty's subjects. Here is not only a conspiracy for an illegal end, but a conspiracy to effect that end by illegal means; because when it is endeavoured to raise the funds by false rumours, the means are illegal, then is the end illegal. The object is to produce a temporary rise in the funds without any foundation; and the necessary consequence of that is, all those who purchase on the day, and during the period of time that rise affects the funds, will necessarily be prejudiced.
Another objection is, that the indictment does not state by name the persons whom the defendants intended to defraud; but it is said, the indictment would have been good if it had stated, that by means of this conspiracy certain persons, naming them, had been prejudiced. As to that, the conspiracy constitutes the crime, and it is sufficient to state the crime upon the indictment in the way it existed at the moment when the crime was complete. It might have happened from circumstances coming to light, that the plot should be detected before the mischief had been effected; yet the offence would not have been less, because the parties had done all in their power, and every thing that was necessary to constitute the crime, when they had formed the conspiracy, and used the illegal means for an illegal purpose. It depended not on them how far their crime would be prejudicial to others; but their criminality must depend on their own act, not upon the consequences of that act.
The other objection is, that the indictment describes the funds to be raised as the funds of this kingdom. It is true, that since the Union the funds which are raised must be raised in certain proportions upon one part of the kingdom and upon the other: but when those funds are raised, they become respectively the funds of the kingdom, they are raised by the Legislature of the kingdom, and are applied by the Government of the kingdom to such purposes as Parliament say they are to be applied to. But if you can properly predicate of them, that they are funds, in part only applicable to England, and in part to Ireland, still it is true that those two funds do constitute the funds of this kingdom; and when it can only be said, that the funds of this kingdom are distinguishable into British and Irish funds, then when you speak of the funds of this kingdom, you mean both the British and Irish funds.
Mr. Justice Dampier,
The charge upon this indictment is, that the defendants, by false rumours, conspired to create a temporary rise in the funds of the kingdom, in order to defraud those who should purchase into the funds on a particular day. I cannot raise any doubt in my mind, but that this is, according to any definition of the act of conspiracy, a complete crime of conspiracy. The means are wrong, they are false rumours; the object is wrong, for it is to give a false value to a commodity in a public market; and the consequences are injurious to all who have to purchase that commodity. This disposes of the first objection.
The second objection is, that the persons defrauded ought to have been named. The first answer to that is, the crime of conspiracy is complete when the concert to bring about an object with a mischievous intent is complete; it is not at all necessary for the perfection of the crime that its object should be attained. Therefore, the first answer is, there need be no person injured. The next answer is the impossibility of the defendants knowing before-hand who would be defrauded. It is said, the indictment was preferred after the mischief had taken effect, therefore the persons injured might have been named; but to require such a statement we must hold, that the consequential damage created by this crime is necessary to constitute the crime itself.
The third objection is, that there are no such funds as the funds of this kingdom; that there are no funds raised at the common charge of both parts of the United Kingdom. But every fund that is raised from either part becomes, when it is raised, a fund of the kingdom at large, and is strictly a part of the funds and government securities of the United Kingdom; the United Kingdom is answerable for them, and for the service of the United Kingdom, whether applied to England or Ireland, it is that they are raised. I think the description is better than any other which might be framed. For these reasons I am of opinion, there is no ground to arrest the judgment, nor any doubt to require a rule for a further discussion.
Lord Ellenborough read the report of the evidence.
Lord Cochrane,
Your Lordships having listened to those who had any thing to offer which they considered material for their defence, emboldens me to trust that your Lordships, though I do not address you by Counsel, will grant me a similar indulgence, and even that you will extend that indulgence further to me on account of my not appearing by Counsel, for the reasons which I had the honour to state to you upon a former occasion. In order that those feelings which must agitate me on the present occasion, may as little as possible enter into what I have now to state, I have judged it proper to reduce it to writing; and in order to give the Court as little trouble as possible, to make my statement as short as the circumstances of the case appear to me to admit of.
It has been my very great misfortune to be apparently implicated in the guilt of others with whom I never had any connexion, except in transactions, so far as I was apprised of them, entirely blameless. I had met Mr. De Berenger in public company, but was on no terms of intimacy with him. With Mr. Cochrane Johnstone I had the intercourse natural between such near relatives. Mr. Butt had voluntarily offered, without any reward, to carry on stock transactions, in which thousands, as well as myself were engaged, in the face of day without the smallest imputation of any thing incorrect. The other four defendants were wholly unknown to me, nor have I ever, directly or indirectly, held any communication with them. Of Mr. De Berenger's concern in the fraud, I have no information, except such as arises out of the late trial. With regard to Mr. Johnstone and Mr. Butt, I am willing to hope that they are guiltless. They repeatedly protested to me their innocence. They did not dare to communicate any such plan to me, if such was projected by them, or either of them. Be they guilty, then, or be they, one or both, erroneously convicted, I have only to lament, that, without the most remote suspicion of their proceedings, if they, or either of them, were concerned in the fraud, I have, through my blameless intercourse with them, been subject to imputations which might, with equal justice, have been cast upon any man who now hears me. Circumstanced as I am, I must keep myself wholly unconnected with those whose innocence cannot be so clear to me as my own. Well had it been for me if I had made this distinction sooner.
I do not stand here to commend myself—unhappily, I must seek only for exculpation; but I cannot exist under the load of dishonour which even an unjust judgment has flung upon me. My life has been too often in jeopardy to make me think much about it; but my honour was never yet breathed upon; and I now hold my existence only in the determination to remove an imputation, as groundless, as it is intolerable.
The evidence which I now tender to your Lordship, will aid me in performing this duty towards myself, my rank, and my profession. I first offer the affidavit, which I have repeated at a risk which I formerly had no opportunity of encountering. I have been told, that I then incurred the moral guilt of perjury, without exposing myself to the legal penalties. I know nothing of such distinctions. I have repeated the statement upon oath—and I am now answerable to the laws if I have falsely sworn. The affidavits of three persons who saw De Berenger at my house on the 21st of February, fully confirm my statement, and I have only been prevented from bringing forward a fourth, by his sailing to a distant situation, before I could possibly stop him for this purpose.
The grounds upon which I have been convicted are these:—That notes were found in De Berenger's possession which had been changed for others, that had once been in mine. That De Berenger came to my house after returning from his expedition; and that my account of what passed at this visit is contradicted by evidence.
The first ground has been clearly explained away; it amounts to nothing more than that which may happen to any man who has money transactions. Mr. Butt voluntarily made purchases and sales of stock for me, and having received a small loan of money from him, I repaid him with bank notes which he used for his own purposes. He says that he exchanged these notes, and that a part of the notes which he received in exchange he paid to Mr. Cochrane Johnstone, who states, that he gave them to De Berenger in payment of some drawings; but with this story, whether true or false, I have no manner of concern, and consequently no wish to discuss it. In what way soever the notes which were received in exchange for mine reached De Berenger, I can only say, that mine were given to Mr. Butt in discharge of a bonâ fide debt; and I have no knowledge whatever of the uses to which he applied them.
De Berenger's coming to my house, I before accounted for upon the supposition of his being unconcerned in the fraud; but is it not obvious that he might have come there to facilitate his escape, by going immediately on board of my ship, with the additional prospect of obtaining employment in America? It has been said that there was a suspicious degree of familiarity in his treatment of me and my house. I can only observe, that over his conduct I had no controul. But he knew, it seems, of my change of abode, which had occurred within a few days. I trust it will be recollected, that he is proved to have left town three days after such change, and that though not intimate with me, he had the means of knowing where I resided, even if he should not have enquired at my former lodgings, where my address was left. Indeed, if taking refuge in my ship, in order to facilitate his escape, was part of his scheme, it was very likely that he would have ascertained the precise place of my abode, previous to his quitting London. Again, I am said to have left the tinman's, (where I think I should hardly have gone had I expected such a messenger) as soon as I heard of the officer's arrival. I was in apprehensions of fatal news respecting my brother then in France, from whom I had received a letter but three days before, with the intelligence of his being dangerously ill; and I now tender you his affidavit, with the surgeon's certificate, dated the 12th of February, which he brought home with him. And therefore, on receiving the note from De Berenger, whose name I was unable to decypher, and as that note announced that the writer, whom I learnt from my servant had the appearance of an officer in the army, who was desirous of seeing me, I hastened to learn intelligence so anxiously expected; nor had I the least doubt that it related to my brother. When, however, I found that the person was De Berenger, and that he had only to speak of his own private affairs, the apparent distress he was in, and the relief it gave my mind to know that he was not the bearer of the news I dreaded, prevented me from feeling that displeasure which I might otherwise have felt at the liberty he had taken or the interruption it had occasioned. Comments have been made on my saying so little to the servant who brought that note; but the fact is, I did ask him several questions, as appears by his affidavit. That I did not learn the name of the writer from the note itself, I have truly accounted for, by its being written so close to the bottom of the paper that I could not read it. This assertion is said to be contradicted by the circumstance of the writer having found room to add a postscript, as if there was only one side to the paper. Of the postscript I have no recollection, but it might have been written even opposite the signature. That I did not collect from the hand-writing, that it was addressed to me by De Berenger, is nothing extraordinary; my acquaintance with that person was extremely slight; and till that day I had never received more than one or two notes from him, which related to a drawing of a lamp. I was too deeply impressed with the idea that the note was addressed to me by an officer who had come with intelligence of my brother, to apprehend that it was written by De Berenger, from whom I expected no communication, and with whose hand-writing I was not familiar. All that I could afterwards recollect of the note, more than what is stated in my affidavit is, that he had something to communicate which would affect my feeling mind, or words to that effect, which confirmed my apprehensions that the writer was the messenger of fatal news of my brother.
If De Berenger had really been my agent in this nefarious transaction, how I should have acted or where I should have chosen to receive him, it is impossible for me to say: but I humbly apprehend that my own house was not the place I should have selected for that purpose. The pretended Du Bourg, if I had chosen him for my instrument, instead of his making me his convenience, should have terminated his expedition and have found a change of dress elsewhere. He should not have come immediately and in open day to my house. I should not so rashly have invited detection and its concomitant ruin.
But this is not the only extravagance of which I am accused. What supposition short of my absolute insanity will account for my having voluntarily made the affidavit which has been so much canvassed, if I really knew the plot in which De Berenger appears to have been engaged? Let me entreat your Lordships consideration of the situation in which I stood at the moment in which that affidavit was made; I was suspected of being connected with the pretended Du Bourg; if I had known that De Berenger was the person who had assumed that name, could I possibly have betrayed him, and consequently myself, more completely than by publishing such a detail to the world? The name of De Berenger was never mentioned till brought forward in my affidavit; which affidavit was made, as sworn by Mr. Wright, a witness on the trial, with the circumstance present to me, and remarked by me at the time I delivered it to him to be printed, that if De Berenger should happen to be Du Bourg, I had furnished a clue to his detection. The circumstance of his obtaining a change of dress at my house, never could have been known if I had not voluntarily discovered it; and thus I am represented as having brought him publicly to my own house, of being the first to disclose his name, and of mentioning a circumstance, which, of all others, it was the most easy to conceal, and, if divulged, the most certain to excite suspicion! Is it not next to impossible, that a man, conscious of guilt, should have been so careless of his most imminent danger?
My adversaries dwell upon some particulars of this affidavit, which they pretend to find contradicted in the evidence. The principle one is my assertion that Berenger wore a green coat. I have repeated this assertion upon oath, under all the risks of the law; and I also solemnly affirm, upon my honour, which I regard as an obligation no less sacred, that I only saw him in that dress. The witnesses on the part of the prosecution have asserted, that he wore a red coat when he arrived in town. Granted. But may he not have changed it in the coach, on his way to Green-street? Where was the difficulty, and for what purpose was the portmanteau? My own fixed opinion is, that he changed his dress in the coach, because I believe that he dared not run the risk of appearing in my presence till he had so changed it. I tender affidavits of those who saw him, as I did, in his green coat, at my house. That he should have changed his dress before I saw him is most natural, upon the supposition of his wishing to conceal from me the work he had been about; but it is like many other confirmations of my innocence, fated to excite no attention in the minds of those who only seek food for their suspicions. Much is said of the star and other ornaments, as if any proof had been given of his wearing them in my presence. He took especial care, I doubt not, to lay them aside on his way, when he had divested himself of his official capacity, long before I saw him. The small portmanteau before-mentioned, which it is admitted he brought with him, in all probability furnished him with the green coat, and received the red coat and its ornaments, and very possibly for this reason no remark has been made upon it. A good deal of observation has been bestowed upon De Berenger's unwillingness to appear before Lord Yarmouth in uniform, and the inference was, that this uniform could not have been the green dress of his corps, otherwise he must have felt the reverse of uneasy at being seen in it by his Colonel. Does any volunteer officer go out of a morning to make calls in his regimentals? Could so unusual a circumstance have failed to excite remark from Lord Yarmouth? To me, indeed, he had explained himself—he had of necessity told me his nearly desperate state, in asking me to receive him on board my ship; but is there any thing so very incredible in the statement that he was unwilling to tell his whole case to every body? It may now doubtless be perceived, that he might have had other reasons for disliking to go out in a green dress.
Let it, however, be recollected, that my statement was, that he only asked me for a hat in lieu of his military cap, and that the black coat was my own voluntary offer. The idea of his applying to Lord Yarmouth, or to any other of his friends, originated with me, and I proposed it in consequence of his calling to my recollection the certificates he had received from them. I then had no suspicion awake, and I believed what he told me. In what manner the disguise was ultimately disposed of I can only conjecture, as any one else might, from the evidence given on the trial. He presented himself to me in a grey great coat, and a green under coat; and if the persons whose affidavits I now tender had been examined on the trial, and they did attend for that purpose, I do feel persuaded that a very different impression would have been made on the jury and the world at large, than that which they appear to entertain; and that your Lordships might have been disposed to take an opposite view of the case as it affected me. Those witnesses would have corroborated the particulars of my affidavit relative to De Berenger's dress, when I first saw him at my house, namely, a grey great coat, and a green under coat and jacket. Unfortunately, through some mistake or misconception, not on my part, they were left unnoticed, and, of course, were not examined. I have now to offer their several affidavits to your Lordships.
I would further submit to your Lordships, that my affidavit was made at the impulse of the moment, as soon as I heard that placards had been posted, stating that the pretended colonel Du Bourg had gone to my house; and in the conscious rectitude of my own conduct, I not only introduced the name of the only officer I saw at my house on the day stated, but narrated every occurrence that took place, and all the conversation that look place at the interview, to the best of my recollection. If I am censured for having been too ingenuous in my communication, I trust it will be admitted, that as ingenuousness disclaims all connexion with guilt, it is indicative only of my innocence.
If your Lordships will be pleased to reflect on all that I have offered respecting De Berenger, and to bear in mind the avowed intercourse which I had with two other defendants, respecting whose conduct I have been compelled to speak at last upon a supposition of their guilt, I am confident you will perceive how easily any man living so circumstanced might have been placed in the very situation. But waiving the supposition of De Berenger acting under the direction of either of the other defendants, I do still contend, that any man who had stock concerns, and was slightly known to De Berenger, ran the same risk with me, of being driven into the ruin, which undeservedly, as I am still willing to hope, has befallen the others.
The artifices which have been used to excite so much prejudice against me, I unfeignedly despise, in spite of the injury they have done me. I know it must subside, and I look forward to justice being rendered my character sooner or later: It will come most speedily, as well as most gratefully, if I shall receive it at your Lordship's hands. I am not unused to injury; of late I have known persecution: the indignity of compassion I am not yet able to bear. To escape what is vulgarly called punishment, would have been an easy thing; but I must have belied my feelings by acting as if I were conscious of dishonour. There are ways, even of removing beyond the reach of ignominy, but I cannot feel disgraced while I know that I am guiltless. Under the influence of this sentiment, I persist in the defence of my character. I have often been in situations where I had an opportunity of showing it. This is the first time, thank God, that I was ever called upon to defend it.
The following Affidavits, handed in by Lord Cochrane, were read.
"In the King's Bench.
"The King against Charles Random De Berenger, & others.
"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.