Gentlemen, there was another circumstance which my learned friend has introduced to prejudice this case; and unless I have deceived myself, or my ears have deceived me, I have heard no such evidence given in the cause, as my learned friend stated; a stronger statement to prejudice could hardly be made in a case of this sort; but I heard no such question put to Wood, the messenger, and I listened with all the attention I could to his examination.—My learned friend stated, that Mr. De Berenger had been extremely anxious to get back into his hands the identical notes; that no other notes would serve him; that he must have those notes, and those only delivered back. Was this stated without any reason by my learned friend? Certainly not; it would have been, if the fact had corresponded with the statement, an extremely strong argument on the part of my learned friend against this gentleman for whom I am counsel. But my learned friend, and his learned coadjutors, never put to any witness, at any one period of this cause, the question, whether Mr. De Berenger made any such application to their knowledge? and all this is a gratuitous statement of my learned friend, but a statement that went to prejudice, or was intended to prejudice, your minds upon the subject, and it undoubtedly was very important.
Gentlemen, this may have been said in places unknown to me; it may have been said in newspapers for aught I know to the contrary; but, thank God, I never read newspapers with that attention some gentlemen do, for I think it is a great waste of time. If men are in public situation, they must read them; but I have heard no statement in evidence of that circumstance, which my learned friend Mr. Gurney so much relied upon, and so much reasoned upon in his statement to you.
Gentlemen, it was also said, that there had been publications in this case; I do not know by whom those publications have taken place. There was some evidence given by Mr. Richardson, of a publication by Mr. Butt; that I suppose my learned friend has seen; I have not; but I do not go along with my learned friend in this; I do not agree, that these are the necessary consequences of a free press; I have always been of opinion, and always shall, because it is firmly rooted in my mind, that all previous publications on one side or the other, tending to inflame the minds of the Jury, who are to try questions between the King and his subjects, or between party and party, on whatever side they may be published, are most highly and extremely improper. I think it is a disgrace, that the press of this country has engendered such an avidity in the public mind to have these things detailed to them; that they indulge it to a degree subversive of all justice. Hardly a case has happened within our own observation of late years, that the whole of the case has not been detailed before it came to trial, so that it is impossible but that the minds of the jurymen (and men cannot divine whether they shall be jurymen or not) should receive a bias upon this subject; but it is very hard that all the obloquy which such publications merit, should be thrown upon the defendants. Did that self-constituted Committee of the Stock Exchange, of which I shall speak much more plainly by and by, and tell you what I think of that committee; did that self-constituted Committee of the Stock Exchange, who have brought forward this as a charge against the defendants, make no publication; did they not placard on the doors of their Stock Exchange, the names of these gentlemen, members of the legislature, and persons standing so high in the country? Why did they set so infamous an example? I admit to follow it was bad; but to set it, I insist, was much worse.
Gentlemen, whatever blame may have attached upon some of the defendants, if they have made these publications, my client, Mr. De Berenger, is not implicated in any such transactions. Those who have published have only followed the example set them by the prosecutors on this occasion.
Gentlemen, there are certain rules of evidence on subjects of this nature, with which I am sure you are in a great degree acquainted, but upon which you will hear more from his Lordship by and by. It is quite clear that no declarations of one party, though he may be indicted with the others, can be evidence against the other defendants, unless they be present at that declaration. My learned friend, the Serjeant, has so fully gone through the general nature of the case, that it would be impertinent in me to do it; but I shall observe such things as occur to me, on the different species of proof on the part of the prosecution, and I think I shall most decidedly convince you, that even as the case stands, if it was not to be met by the evidence by which it will be met, it would be impossible for you to convict any of these parties, for whom my learned friend and myself are counsel.
Gentlemen, I will presently come to the evidence by which Mr. De Berenger is supposed to be traced from Dover to London; but the great point upon which my learned friend relied, as affecting him after he came to London, was the contradictory statement, as it is supposed, of Lord Cochrane in his affidavit. Gentlemen, first, upon the subject of what are called voluntary affidavits. It is extremely absurd in magistrates ever to take them; no man who knows the law, if he knew he was taking a mere voluntary affidavit, would swear the person before him; but as far as the magistrates are concerned, it is impossible from the nature of the thing, that they should know whether they are voluntary affidavits or not, for there is a great part of the business of magistrates which does not depend upon the hearing of parties, and unless they were to read every affidavit through, which would be to impose a great burthen upon them, they must sometimes swear a party to a voluntary affidavit.
But, Gentlemen, let us look to Lord Cochrane's situation in this matter. I will suppose that Lord Cochrane knew he was not liable to the pains and penalties of perjury by law; but is Lord Cochrane so reduced in the scale of society by any thing that has yet appeared before you, that you will say he has not only joined in committing the fraud in this conspiracy charged, but that he is a person wholly unworthy of credit, and who, though he may not be subjected to the penalties of perjury, is lost to all sense of duty, so that he would, because he could not be prosecuted at law for the perjury, put his name to a direct and absolute falsehood. I believe no man would say of Lord Cochrane, that he had so utterly thrown off all regard to religion, to the sanction of an oath, properly so called, and to the responsibility he stands under in conscience, as that he would go before a magistrate and make an affidavit, because he could not be prosecuted. I think the supposition is so shocking and so degradatory to him as a man, an officer and a christian, that you will not come to that conclusion. That Lord Cochrane is a brave man, that he has served his country well, no man will deny. Does Mr. Baily then, do the three other brokers, who demurred to the question put to them as to time bargains; do all this mass of people, constituting the Stock Exchange, now standing within the sound of my voice, mean to say, that because Lord Cochrane has acted so improperly (for I so consider it) as to enter into a time-bargain, therefore he is not to be believed upon his oath? If so, Gentlemen, the Stock Exchange and its doors must be shut up for ever; and the great men who stalk about as the self-constituted Committee of the Stock Exchange, must not have any thing to do in future, because time-bargains are their daily bread; they are at that species of traffic daily, conducting themselves in a manner, whether they like it or not, I say, is most highly disgraceful.
Gentlemen, is Lord Cochrane to be believed or not? have you any ground for saying, that this noble Lord has been guilty, not of perjury in the common sense of the word, but of perjury of a much higher kind, in my view, for which he must be accountable, for which he knows he must be accountable, if he has sworn that which he knows to be false, and which he cannot have done without being one of the most worthless men in the world. Gentlemen, what has he said? and I beg your particular attention to it, because the evidence of the brokers will not tally with the statement at all; he has sworn that he breakfasted with his uncle, Mr. Cochrane Johnstone, in Cumberland place, which is at a considerable distance (whatever my learned friend may suppose about it) from Green-street Grosvenor-square; it is on the other side, I believe, of the Oxford Road, and near the top of it. It is proved that he breakfasted with him, for Crain's evidence is, that when he set down Mr. De Berenger at the door, the answer was, that he was gone to Cumberland Place. What does Lord Cochrane state; that he went with his uncle in a hackney coach, which took him into the city at the hour of ten in the morning. I beg his lordship's particular attention to that part of the affidavit. Now, Gentlemen, when is it that these time-bargains are supposed to have been made, in consequence of news which it is alleged Mr. De Berenger brought. It is sworn that they were made before eleven o'clock in the day. Why, Gentlemen, we are forgetting distances. If Lord Cochrane was set down at Snow-hill at ten in the morning, if he afterwards came back, as he did, to Green-street Grosvenor-square, being sent for by his servant or Mr. De Berenger, he could not be back before half-past ten or nearly eleven, and I defy all mankind to state how he could after that have communicated to the Stock Exchange, the news this gentleman was supposed to be dispersing abroad, so as to affect the price of stocks. The whole of the transaction took place before eleven in the day, and he was not sent for from Snow-hill till after ten. Why, if this gentleman had been a conspirator with Lord Cochrane, when he heard that Lord Cochrane was gone to Snow-hill, he would have gone on to Snow-hill, then they would have been near the purlieus of that place where all this infamy is daily transacting; instead of that Lord Cochrane comes back. It is too ridiculous and absurd, says my learned friend, to suppose that Lord Cochrane should be coming back to see an officer. I hope, gentlemen, that will not appear to you to be absurd under the circumstances he has sworn to. I can hardly conceive a motive stronger on the mind of a brave man and a good officer for going back, than that stated by him. He was not acquainted with Mr. De Berenger's hand-writing, though Mr. Cochrane Johnstone was. Having a brother in Spain, he expected that he should receive accounts of him from a brother officer; is that an unnatural sensation? I trust it will never be so in the bosom of any one to whom I am addressing myself; it is one of the most natural that can be stated, and under that impression he goes back, and holds the conversation which has been stated.
Gentlemen, it is stated to you by my learned friend, the Serjeant, and he has better means of proving these things than I have, that the grounds upon which this matter rests, as far as Lord Cochrane is concerned, will be fully explained. The gentleman for whom I appear was, at that time, under duress on account of debt; and Mr. Tahourdin, now his attorney, was his security for that debt. He was a distressed man, and was desirous of going out to Sir Alexander Cochrane, who had had conversation with this gentleman, whose bravery and whose character nobody will dispute; and it will be proved to you Sir Alexander Cochrane had made application to the noble lord near his lordship, to enable him to go out to America; but he could not go, because His Majesty's ministers thought (and I dare say most wisely) that it was not fit to give him the rank which he claimed, being a foreigner by birth, though he had been long serving in this country with the approbation of His Majesty's Government. He was a member of the corp of sharp shooters, of which Lord Yarmouth or the Duke of Cumberland was the colonel. He was the adjutant of that regiment, and he had that military garb and dress which might have been sworn to by Lord Cochrane in the way my learned friend supposes, or in consequence of the facts which I have to state. I do not know why I am placed here at all, if I am to take for granted facts because witnesses have sworn them; therefore I say, Lord Cochrane might either mistake, upon the grounds upon which the learned Serjeant has stated it; or the fact might be, as my learned friend has stated, that he was not the man. I know that some of the witnesses have sworn that he was the man whom the hackney coachman took to Lord Cochrane's, but whether he had this uniform on which is stated, I have no means of proving from his declaration; but I have Lord Cochrane's affidavit as to his wearing that which was his proper uniform.
Then, gentlemen, upon my Lord Cochrane's affidavit it stands, and I say that at present there is not evidence enough to meet it. We have not often had the experience of that which has been done to-day; I believe not above twice in my professional life have I seen a prosecutor put in an answer in Chancery of the person who was defendant, and then negative that answer; but I say, there is not that negation of Lord Cochrane's story which can set it aside. You are bound to take all that Lord Cochrane swears upon the subject; and he has sworn to you that Mr. De Berenger did not communicate to him any single fact respecting the stocks, but that all his communication was with respect to his then distresses. Now, gentlemen, where is the inconsistency of that which appears upon the evidence before the Court, and that which will be produced. If this gentleman was desirous of going out with Lord Cochrane in the Tonnant, and if he had done that which I am not commending, though I shall presently shew it is not so culpable as it at first appears. He had no right, I acknowledge, to break the rules of the King's Bench, having the benefit of those rules, but where is the great wickedness of it? He gave bail to the marshal to answer the risk; but if he had come out of that place, dressed as you hear, by my Lord Cochrane, he had done so with a view of going immediately off to Portsmouth; and when my Lord Cochrane could not take him, though there was no inconsistency in his coming in that uniform, which was to be useful to him if he got out to America, there was a great deal of difficulty, at twelve or one in the day, in his returning in that garb or dress into the rules of the King's Bench prison, for he had not only to walk from the place whence those rules began to the house of Davidson, but first of all to where the rules began; and therefore, though it might be imprudent in Lord Cochrane, I shall prove that he did lend clothes to Mr. De Berenger, for that he returned in the black clothes to his lodgings, and that he had in a bundle those clothes which he had taken out on his back. There appears to me nothing so absurd in the story as to induce you to say, that Lord Cochrane has written to the public that which was wholly and absolutely false within his own knowledge, in order to deceive the public.