This is an indictment for an offence of great malignity and mischief; it is for the offence of conspiracy, which is charged to have been committed by the eight persons whose names are upon this indictment; and it is for you to consider upon the statement of the evidence I shall make to you, how far that offence is brought home to all or any of these Defendants.
The offence of conspiracy, gentlemen, is an offence consisting in a wicked concert, contrivance, and combination of individuals, to effect some public or private injury or mischief; that contrivance and that combination is not to be collected, nor is it practicable, in the course of human affairs, to collect it from the mouths of the parties assembled for the purpose of communication, but from the actings and conduct of the several parties as they may appear generally, to conspire and conduce to the same wicked end and purpose; and if it appears to you, from the actings and conduct of these parties, that they entertained the same common purpose of mischief, and that they have by their several actings combined and co-operated to the effecting that same wicked purpose, that is sufficient to bring home the imputation of the crime charged against the parties; therefore the prosecutor need not shew that they have met in common council, or even that they have seen one another before, if their acting shews they were influenced by one common purpose of mischief, and aimed at the production of the same malignant end and effect. Suppose persons jointly charged in an indictment with the breaking of an house, are found on different sides of the same house, besetting and endeavouring to enter it at the same time; you need not shew that they had actually met, and previously contrived the plan of this joint robbery; the unity of their conduct proves their joint contrivance and concert to accomplish the same end; though, indeed, this is a case where personal presence at the acts done, renders all intendment of the personal concert of the actors unnecessary. The same rules which apply to the offence of conspiracy as a misdemeanor, apply equally to all crimes committed by concert up to the crime of high treason, which is often established by evidence of the distinct actings of separate parties breathing the same purpose, and immediately conducing to the same end. The question, therefore, for you to consider upon the evidence (which I am sorry it will be necessary for me to state to you at a greater length, than, with regard to your ease and convenience, I could have wished) will be, whether the case is not brought home by satisfactory evidence to a great number, if not to all the Defendants.
The crime charged upon this indictment, in eight different charges or counts, is that of conspiring to raise the price of the public funds; in some of them it is charged to be with a view to corrupt gain upon the part of these persons or some of them, or at least to the prejudice of other individuals; for that is enough to constitute the offence, even if the individuals engaged in this conspiracy had not (as it is imputed to them that they had) any corrupt motive of personal advantage to all or any of themselves to answer; if the criminal artifice operated, or was in all probability likely to operate to the prejudice of the public, and was clearly so intended, we need not go further; when we know that a great amount in the funds is at certain periods bought for the public or large classes of individuals; and you find by the testimony of Mr. Steers, that on this very day the sum of £.15,957. 10. 8. was bought for the Accountant General, which would have been bought for less; and every person for whose use the Accountant General purchased, having to acquire by means of such purchase shares in the public securities, would of course have so much the less stock for his money, on account of this fraud, and would consequently receive a great pecuniary injury thereby; and no doubt, multitudes of persons besides those immediately alluded to, and whose cases are not brought individually under your view, must have been affected by it; for the dealings in the funds are, we know, every day carried on to a vast amount, and every person dealing on that particular day, as a purchaser, was prejudiced by the practices by which a false elevation of the funds was on that day occasioned.
Of the counts, one or two, I think, are not counts on which, properly, your verdict can be founded, because they state, that every one of these Defendants knew that a gain was to be acquired by Mr. Cochrane Johnstone, Lord Cochrane, and Mr. Butt; and it does not appear, with sufficient certainty, that they knew the relation in which these three persons stood to the funds, or their interest and speculations therein; I mean, that such persons as M'Rae, Holloway, and so on, might not know the precise situation in which the three stood; but if they all co-operated to the same end, and the Northfleet imposition, as I may call it, was intended to be auxiliary to the imposition intended to be effected by the way of Dover, and the parties knew that they were acting in the same fraud, and were respectively conscious instruments in producing the same effect, they are all guilty of the same conspiracy; and it has been admitted, by a learned counsel for some of the Defendants, that his clients, Holloway, Lyte, and Sandom, have been concerned in a conspiracy; but, he says, that the conspiracy in which they were concerned, was another and a different conspiracy, from the one in which the three first-mentioned of the Defendants were engaged; and that you cannot unite the two conspiracies together, and convict them all as guilty of one entire individual conspiracy; and it will be one material point for your consideration, whether, under the circumstances which have appeared in evidence, it is made out to your satisfaction, that they were all conspiring to effectuate the same purpose, pursuing similar, and with almost a servile imitation and resemblance, the same means, at the same time, in the accomplishment of the same end.
Now how has it been done? in both instances, by the adoption of disguises. Of what nature are the disguises? in both instances, military disguises; one, indeed, has gold lace round the cape, and the other has embroidery. Sarah Alexander says, those procured by M'Rae, were officers coats, with flowers of worsted, and that the hats were embroidered, the one having a brass plate, and a gold tassel, instead of the sort of ornaments that the superior actor in this conspiracy (if such you shall be of opinion he was) had. One was decorated with a star, and that silver ornament that you have seen; the other was in rather a plainer dress; but there was in each case the assumption of the character of officers; and the communication of false intelligence respecting the good news which was to accelerate peace, was common to both parts of the scheme. You will consider, upon the whole of the evidence, whether there is not a link or connection, between the upper and under plot, through the means of M'Rae, and perhaps of Mr. Cochrane Johnstone, and, whether the two conspiracies are not united through the means of that person, M'Rae; his conduct itself is extraordinary; by a most remarkable offer, on the part of Mr. Cochrane Johnstone, it is proposed that there should be the sum of £.10,000 given to this man; a man in a low and ordinary and desperate situation; and it is stated, that Lord Cochrane, Mr. Cochrane Johnstone, and Mr. Butt, would give £.3,000 among them. Why should they give that? If, indeed, they could thereby mislead and draw away the public attention, and divert it to the pursuit and hunting down of M'Rae, as the sole artificer and perpetrator of the fraud, and could thereby turn aside observation and suspicion from themselves (supposing them to be properly charged with this offence), £.3,000 would be well paid, and cheaply employed for such a purpose. It is for you to say, whether these letters which have been read to you, do not appear pregnant of this contrivance and device on the part of the writer.
The first question, gentlemen, will be, was the Defendant, De Berenger, the man who was found at Dover, about one o'clock on the morning of Monday the 21st of February, and who proceeded through the several stages to London, and ultimately to the mansion of Lord Cochrane himself, and was there received with that dress, whatever it was, that he wore; but the dress he wore, is proved by so many witnesses, that I will not fatigue you with stating it now, because I must, by and by, state the whole of the evidence to you.
A great deal of observation has been made about the character of hand-writing, of what I call the Dover letter—the letter sent to Admiral Foley; the object of sending it to him cannot be doubtful, for it was intended that the Port Admiral should (as he would if he had believed the report) communicate that intelligence to Government, and which, if the day had been tolerably clear, might by telegraph have reached this town in much less than half an hour, I believe in a quarter of an hour; and having been sent off at this very early hour to Admiral Foley, who was called out of bed to receive it, it would have been in town early, and the stocks would have been up at the very moment, when under the peremptory order before given, £.50,000 would have been sold, as well as every other part of the stock, standing in the names of the Defendants.
Gentlemen, there has been great stress laid upon this letter, and whether it be or be not the hand-writing of De Berenger, I will not (for it is not my province) draw the conclusion which might be drawn from looking at that letter; it appears to me evidently an artificial, upright, stiff hand, as contrasted with the ordinary natural character of hand-writing of that gentleman. It is sometimes useful to look where the same words occur in different parts of the same letter; and when you come to look at the words, "I have the honour to be," in one part of the letter, and the words "have pledged my honour," &c. in the other; they present in the first instance, a more angular formation of letters than I have generally seen, and with reference to the idea thrown out of this being written in great haste, it is not impossible that this gentleman having meditated the whole contrivance before-hand, should have brought this letter down with him, ready written and directed from town, and that he had called for pen and ink merely to go through the appearance of writing a letter, and which he might fold up as if for the purpose of being sent; but that he might hand over to Wright, of Dover, the letter he had brought with him, not trusting to the hurry of the moment for the proper formation of one. I do not say that such is the fact; but it is clear that the letter produced, is the one he actually sent; for he says afterwards to the witness, Shilling, that he had sent a letter to Admiral Foley, in order to apprize him that the telegraph might work; the Dover express-boy proves that he carried the letter given to him, to Admiral Foley, and what letter can that be, if it is not this, which is proved to have been delivered to Admiral Foley? This letter was calculated to impress the Admiral with the belief, that the allies had obtained a decisive victory, that Bonaparte was killed, that the allies were in Paris, and that peace was likely to take place immediately. After the calamity of the long war we have had, ending as indeed it has ended, in the fulness of glory; we all feel that we have had an abundant measure of glory, though painfully earned; every body recollects the sort of electric effect produced upon this town the moment the news now under consideration arrived; the funds were raised preternaturally; one cannot indeed on looking back, account for it, how the omnium should have been up to twenty-eight at that time; there was a considerable elevation beyond that price during the course of that day; it rose to thirty and a fraction.
Gentlemen, the prosecutors allege that the Defendant, De Berenger, having forwarded this letter, pursued his course, coming to town in the manner stated, and that he ultimately came to Lord Cochrane's house, upon which I shall hereafter comment. You will not, I think, have any doubt that De Berenger was the man who appeared under the name of Du Bourg; but in order to obviate or remove that impression from your minds, the learned counsel for the Defendant, De Berenger, did adventure or rather was forced upon an attempt, which I own it seemed to me to require the utmost firmness to attempt to execute; for there never was evidence given since I have been present in a court of justice, which carried to my mind such entire conviction of the truth and authenticity of that part of the story; you were yourselves witnesses to the manner in which the witnesses, who spoke to the person of De Berenger, were put upon the investigation; they were told to look round the court, and they accordingly threw their eyes about the court in every direction, before they found the person whom they said they had so taken notice of; you saw them look behind them, look down, and on every side of them, and then suddenly, as if they were struck by a sort of electricity, conviction flashed upon their minds the instant their eyes glanced upon him; this occurred in every instance I think but one, where the witness not having his eyes conducted that way, did not discover him. The learned counsel having such abundance of proof on this head, did not resort to a means usually adopted on occasions of this sort, and to which it is perfectly allowable to resort, namely, that of shewing the person to the witness, and asking him whether such person was the man; when a man stands for his life at the bar of the Old Bailey, the witness is frequently bid to look at the prisoner at the bar, and to say whether he remembers him, and whether he is the person, or one of the persons (as the case may be) who robbed him; and he pronounces whether according to his recollection, he is the person or not. So multiplied a quantity of testimony, so clear, and so consistent, was, I think hardly ever presented in the course of any criminal trial; differing in no circumstance respecting his person and dress, excepting in some trifles, which amidst the general accordance of all material circumstances, rather confirmed by this minute diversity, than weakened, the general credit of the whole, and gave it the advantage which belongs to an artless and unartificial tale. Some saying his cap was a little flat, as it might be owing to its being drawn over his face; one saying that it was brown; another I think, that it was of a fawn colour; and one who spoke with the utmost certainty in other particulars, that it was nearly the colour of his pepper and salt great coat; but in all the other substantial particulars, they concur in their accounts most exactly; and these minute variances exclude the idea of any uniform contrivance and design in the variation; for where it is an artificial and prepared story, the parties agree in the minutest facts, as well as the most important; and indeed, gentlemen, so abundant, so uniform, and so powerful is the evidence as to one point, viz. the identity of Berenger, that it strikes me, that if these witnesses are not to be fully believed as to this point, then almost every man who has been convicted at the Old Bailey upon so much weaker proof of his being the person who committed the particular crime with which he is charged, (and which has been the case in almost every instance I have known), may be considered as victims unjustly sacrificed in a course of trial, to the rash credulity of their judges and juries. If the evidence produced is not sufficient to establish this point, I am at a loss to say by what description and quantity of testimony, such a point can be satisfactorily made out in a course of trial.
When the learned counsel addressed himself to prove an alibi, I could not foresee how it would be satisfactorily accomplished; I cannot say I believed he would accomplish it, but I believed it would be attempted by better evidence than that which has been adduced; you recollect the prior testimony of the Davidsons; the servants had gone out at two, instead of four; Mr. De Berenger, according to the evidence he has adduced, is found three miles and a half off; where he had dined, is not shewn, he is in a hurry to get back; according to the next set of alibi witnesses, he is found at Mr. Donithorne's between eight and nine, having been found there in the morning, to measure the garden, at not a very convenient time, with the snow upon the ground; and who are the people who speak to this? a man who has been in the habit, which some of us are, of examining the countenances and demeanor of men brought forward to speak to guilty untruths, becomes in a degree familiar with the modes of behaviour which such persons adopt. From something in the manner of one of the witnesses, which suggested to me that such a question might not be improperly addressed to him, I asked him, whether he had not been used to be bail? (thinking that he might possibly be one of those hired bail, who are the disgrace of our courts of justice). What does he answer? why, he had been bail once, and then he had been bail another time, and the amount he did not know; and I think he said he did not know whether he had not been bail oftener; a man who is in the habit of being bail, must swear to the amount, and he must swear he is an housekeeper; and this man had no house over his head of his own, but was living in the house of another; I thought, too, the man might have failed, and been obliged to quit his house on that account; and it so appears, that he was undone in his circumstances, and that he was a man occasionally presenting himself to swear to his possession of property, warranting his becoming bail for others. Then what becomes of Donithorne; he is an inferior cabinet-maker, employed by Mr. Cochrane Johnstone, and has brought a great number of penal actions for him; at every turn of the case, he doubles in upon us, and you will presently have to say, whether he and others, and which others, are not affected by this case.