But, gentlemen, Mr. Lavie has proved his hand-writing. I shall call witnesses to contradict Mr. Lavie; but do not misunderstand me, I believe Mr. Lavie to be a very honourable person, and one who would not tell you a falsehood; but I say he has not the means of knowledge. I can only say, gentleman, that a man must be much more attentive to hands-writing than most of the persons of my profession, in which I include Mr. Lavie, if he can swear to a hand-writing, because he has seen that hand-writing once. I have seen my learned friends near me write many times, but I could not swear to their hands-writing; if I saw a very bad hand indeed, I should say it was Mr. Serjeant Best's; but let me caution you; you are trying these defendants for a conspiracy; you are trying them for a crime of the greatest and most enormous magnitude; you are trying them for an offence that will shut these gentlemen, if you find them guilty, out of the pale of all honourable and decent society; and therefore, though this subject is one, which, from the singularity of it, may create a smile, it is a matter which you will not smile upon when you come to pronounce your verdict; because upon your verdict must the happiness of these gentlemen depend. Will you, upon the evidence of Mr. Lavie, honourable as may believe him to be, and just as you may believe him to be, say that he has those means of knowledge which he professes to have.
Gentlemen, I am placed in a very awkward situation as to that paper, which my client assures me he never saw, and I mean to call witnesses to prove, that he is not the writer of it; I do not think it necessary, but I will do it, for it shall not rest upon me that I have not done my duty. But I am placed in an awkward situation as to the hand-writing; I do not complain of it, but the witnesses into whose hands I must put that paper, have never seen it. Mr. Lavie has seen it; he has had an opportunity of conning it over; but I think he might have done better than to have given his own testimony of this Mr. de Berenger's writing. Mr. de Berenger is not an obscure man in the city of London; he has lived in this country twenty-five years; he tells me there was no man acquainted with his hand-writing, who could be called to prove this to be his hand-writing; and that no witness to speak to that could be found; but Mr. Lavie went to him improperly; for the Stock Exchange had no more right to break in upon Mr. de Berenger, at the Parliament-street coffee-house, than any one of you. I say it was an impertinent intrusion; this gentleman was brought up on a warrant not respecting this affair, but on a warrant from the Secretary of State, whilst he was fatigued and tired, as he stated to the messenger; still most disgracefully the messenger allowed Mr. Lavie and the Stock Exchange Committee to pump him upon this matter. How the hand-writing is attempted to be proved, it does not become me to say further; but I put papers into the hand of Mr. Lavie, the hand-writing of which, if they be of the hand-writing of Mr. De Berenger, I will venture to say that the paper lying before his Lordship is not; because I have eyes as well as Mr. Lavie has; and I think I can speak to any hand-writing as well as he can. I say it is not the same hand-writing as these, if my eyes do not deceive me; and I shall put it into the hands of persons who have known Mr. De. Berenger long, and they shall say whether it be his hand-writing or not. Gentlemen, if it be not his hand-writing, which I must assume, I say the whole of that Dover case falls to the ground; because the main sheet-anchor of the whole of the Dover case is that paper. Why do I say so? Because all the witnesses who have come from the Ship Inn at Dover, Marsh, Gerely, Edis, (Wright is not here, being ill;) these men one and all, speak to the person called Du Bourg, as being the person who sent this letter, as aid-de-camp to Lord Cathcart; they all say it was this man, as they believe, that wrote that letter, and sent it off to Admiral Foley. I say, gentleman, that story, as applied to Mr. De Berenger, falls to the ground, if that letter was not the hand-writing of Mr. De Berenger; inasmuch as the letter is now supposed to be traced into the hands of Admiral Foley, from the Ship Inn at Dover, by the conveyance of the little boy. If Mr. De Berenger was not the writer of it, then Mr. De Berenger was not the man who was at that inn.
Gentlemen, it was said by Mr. Gurney in his opening, that he should call the landlord and landlady of the house at which Mr. De Berenger lodged, to prove that he did not sleep at home that night; but they have proved no such thing. I expected, from my learned friend's statement of it, and I am sure he expected it, or he would not have so stated it, that they would have proved that. The man says, he does not know who comes in and who goes out, being the clerk of a stockbroker, and being a good deal out; he says, Mr. De Berenger comes in without their interference; he has his own servants; and all he reasons from is the fact, that he did not hear him blow his French horn at eight or nine o'clock on the Monday morning, which I shall prove to you he could not do, for that Mr. De Berenger went out to Lord Cochrane's at eight o'clock. These people do not swear, that he did not sleep at home; all they say is, that they do not know whether he was at home or not.
Now, Gentlemen, upon the subject upon which I am about to address you, I do not think it absolutely necessary to go into it; and I should not at this hour in the morning call evidence, but in a matter so highly penal as this is, and where I am placed in so delicate a situation, and in which, thank God, I can very seldom be placed, I do not think it right to act on my own judgment, where my client assures me that he was not the man, and is an innocent person; and that he is determined (because he knows perfectly well that what he says is the truth) to have his witnesses called; he shall have those witnesses called, for I chuse to have no responsibility cast upon me that does not belong to my situation. Gentlemen, I shall prove to you most completely that which will dispose of the case, if it is believed. I trust I have already shewn, that it is a case depending upon such frail testimony, as it stands, that it is not worthy of any degree of credit. But I am instructed, that I shall be able to call five or six witnesses, who all saw this gentleman in London, at an hour which was impossible, consistently with the case for the prosecution, and who have no interest, and had better means of knowledge than those who have been called before you.
Gentlemen, I do not mean to say those witnesses who have been called before you have been perjured; but I mean to say, they had not the same means of knowledge with my witnesses; and that, except one of them, or two at the utmost, they had not the day light to assist them in observations they made upon this traveller. Be so good as to recollect the circumstances under which he was supposed to have come to Dover; he is found knocking at the door of the Ship Inn, about one in the morning; the man belonging to the opposite house, having been carousing there at a most astonishingly late hour for a reputable tradesman, in the town of Dover, the hatter, the cooper, and the landlord, being sitting together, hear a knocking at the door; and they find a man in the passage of the house. Whom do they find there? a man dressed in the manner you have heard described; but the person who sees him, and holds the candle in the passage, has a very short conversation with him; the whole time he saw him did not exceed five minutes, and in that time he went up to call the landlord; he put the pen, ink and paper, into his room, and then he left him; he did not see him without his cap, and yet he swears he is the man; and he is not singular in that, for there are many others swear to the same.
Gentlemen, it is a prejudice my client has to encounter, that we have been engaged in this case seventeen hours; and that my learned friend, Mr. Gurney, who opened the case, was in the full possession of his powers, and that he has in a measure forestalled your minds by the evidence he has given, and that the evidence given by me has to eradicate the impressions which his statements and his evidence have made. Gentlemen, I put questions to one of the witnesses which his lordship thought were not of any weight, and per se they were not strong; but when we are proving identity every little circumstance goes to the question, aye or no; we had some witnesses swearing to a slouch cap, one which comes over the eyes, and another swearing that it was like the coat, grey; another that it was a dark brown. If the fac simile is correct, there are discordances in the evidence which raise a suspicion in my mind, a suspicion not that the witnesses are perjuring themselves, but that they had not sufficient means of knowledge upon the subject; and that you are called upon to convict this gentleman of a base and infamous crime, from which, except from the evidence of Le Marchant, he was to derive no benefit unless the £.400 was a bonus, and that upon the evidence of witnesses, who, however respectable, had very little means of observation; for it was not day light hardly even when they left Dartford; and the morning we hear was a foggy morning, and therefore, except Shilling's evidence, we have not evidence that this is the man in day light; we have no evidence of any persons who saw him in daylight, and identify him as being the person who came from Dover to London; Shilling's evidence I admit, is, as to his seeing him in day light, and his evidence is extremely strong undoubtedly.
Gentlemen, I am quite aware, though I have not practised a great deal in criminal courts, that the evidence of an alibi, as we call it, that is evidence to prove that the person was not upon the spot, is always evidence of a very suspicious nature; it is always to be watched therefore; but I am sure that I shall have his lordship's sanction for this; that if the witnesses to be called have all the means of knowledge upon the subject, if the generality of them have no interest at all in the matter of discussion, and if they prove the alibi satisfactorily, there is no evidence more complete than that of alibi, and that alibi will produce advantage in favour of the person who sets it up, according to the nature of that case which is made against him; and if it be merely circumstantial evidence, although that is in some cases much stronger than positive testimony, yet if the evidence against that person is chiefly mere evidence of identity of person, I say that the proof of the alibi will receive stronger confirmation, if those witnesses who undertake to identify have not had sufficient means of knowledge upon the subject.
Hear then, Gentlemen, how I shall prove this case. This person, by the consent of his bail, Mr. Tahourdin, as I have told you, was continually soliciting for the situation he was desirous of obtaining, for the purpose of going out to America under Sir Alexander Cochrane; he was therefore continually violating the rules; and in order to do that with safety, he used to go down a passage and take water, instead of crossing Westminster Bridge; because he thought that on Westminster Bridge he should be more likely to be met by the officers, and so more likely to get to the ears of the marshal, so as to lose the benefit of the rules; he was well known to the usual watermen plying there; and I have two watermen here, who will prove to you that on that Sunday morning, which was the first Sunday after the frost broke up, so as to open the river Thames, which had been shut a considerable time, that on the first Sunday after, namely, the 20th of February, this gentleman crossed at that ferry to go over to the Westminster side. Gentlemen, I shall prove to you, that in the course of that day he was at Chelsea; he had been known at Chelsea, having lived there for a considerable time before he was in the rules of the Bench. I will prove that he had called at a house which I will not name, because we shall have that from the witnesses from whence the stage coaches go; that the ostler at that house perfectly well knew him, and that he knew his servant; that he told him the coach had gone off at an early hour in the evening, and there was no coach to go for some time; he will tell you, that he knew this gentleman, and is positively sure that he was there. I shall prove that he went to another house in the course of that evening; and I have two or three of the members of that family who saw and conversed with him between eight and nine in the evening of the Sunday, so that by the course of time, it was absolutely impossible that he could have been at Dover by one in the morning, if he had been at this gentleman's house at eight in the evening. I shall prove that after that he went home to his lodgings. I shall prove that he slept in his lodgings; that his bed was in the morning made by his maid servant; that he constantly slept at home, and that he did that night. I have his servants here who will prove these facts. I allow that he went out that morning, and went out in regimentals, which they will describe to you, and went to Lord Cochrane's upon the errand I have described to you.
Now, Gentlemen, in addition to that, there will be the evidence to be given by my learned friend, Mr. Serjeant Best, which I have a right, as far as it applies to Mr. De Berenger, to pray in aid for him. Does it not immediately go to shew, that it is impossible, but that these persons who have been examined for the prosecution, must have been mistaken? I do not ask you to presume that these persons have knowingly said what is not true; but this made a great noise, and persons were sent to see Mr. De Berenger, and from some similarity of person believed him to be the man. I do not indeed believe the account given by one of the witnesses, Mr. St. John; he told a story the most singular, that he being the collector of an Irish charitable society, with no other means of livelihood, found himself at Dover searching for news, by desire of the editor of a newspaper, and he was afterwards on coming up, sent to Newgate to see Mr. De Berenger, who was exposed to the view of every person who chose to look at him. Mr. De Berenger was fixed upon as the man, and you are asked to presume that he fled, because he knew he was the man. Gentlemen, you will take all these circumstances into your consideration, and they will account for the mistake in the testimony of the witnesses for the prosecution; but St. John tells you, that he found himself by accident at Westminster. I do not call that an accident at all, for it appears that he walked down to Westminster to see his person; he went and took a good view of his person, when he was standing upon the floor of the court of King's Bench, pleading to his indictment, for being in custody he must be brought into court to plead to it; this fellow says, he was not in court, but he put his head within the curtain, where he could see this gentleman, he heard the officer read to him, and he says that he answered something; I do not care whether he heard what passed, he saw sufficient to know that he was the person in custody. I cannot, under these circumstances, believe this fellow when he tells you, that he went by accident down to Westminster, for it appears evidently that he went by design. I say there is a readiness and a desire on the part of the Stock Exchange, to follow this up, I think, with an improper spirit.
Gentlemen, we have had this case dressed up to-day; and it has been attempted to induce you to believe, that the transactions of the Stock Exchange were all laudable. Gentlemen, I say they are infamous; but my learned friend would persuade you, that all the infamy rests upon those who deceived these poor creatures. It is very true, as his lordship says, the circulation of a false report is not innocent, for that may operate against you or me going fairly to buy stock; but I think there has been an excess of zeal on this business; some of these witnesses were carried to Mr. Wood's, at Westminster, and they all fixed upon Mr. De Berenger, not corruptly, but in consequence of being carried there, and his being pointed out as the man by Mr. Lavie and some of his clerks; they come readily enough and fix upon him; the deaf man not so easily, but at last he did it too; and it struck me, the question I put to that deaf man was extremely relevant. I cannot tell by a witness's face whether he is merely an actor or not, and especially when my instructions tell me he is mistaken; I wished therefore to know, whether he was not looking round the court to give it the air of probability, and whether he had been standing behind, so as to see the others point out Mr. De Berenger, whom they all knew, because most of them had seen him since that time; some of them had not I admit; he is a soldierly-looking man, and a man likely from the description to be fixed upon. My learned friend seemed to think that one of the witnesses had not a fair opportunity of seeing his person, in consequence of his holding down his head; the fact was, he was taking notes (for he has taken a very full note); but without meaning to do anything improper, I said, hold up your head, and he did so immediately; his recognizance was to appear here to-day, not fearing to have all enquiry made respecting him and as it appeared to me; he did not on any one occasion attempt to conceal his person from their observation, I do say, gentlemen, that the means of knowledge of these witnesses are so slight, that if I call witnesses to prove, not by vague surmise, never having seen him before, that he was in their society and company that evening so late, as to render it impossible that he should have been at Dover that night. But supposing that the evidence of alibi should not be satisfactory, it then comes back to the other observations made in the prior part of the defence.