Tuesday, 14 June 1814.
LORD COCHRANE.
My Lords, scarcely recovered as I am from the shock, which I experienced on hearing of the verdict pronounced against me at the late trial, I must crave your utmost indulgence, not only on that account, but also because I am unacquainted with the proceedings and forms in Courts of Law. I feel it essentially necessary, and I trust I shall make it evident to the minds of your Lordships, that it is essentially necessary to the cause of justice, that there should be a revision of the proceedings that have been lately had, and that a new trial should take place, at least as far as I am concerned and implicated in that transaction.
It has been my misfortune to suffer from an intimacy, or rather an acquaintance, with men, over whose conduct I could have no control whatever. I have been informed, that it is not competent for my counsel to rise up on the present occasion to ask your Lordships to grant me a new trial, and therefore it is necessary I should address you myself.
Lord Ellenborough.Your Lordship must have been misinformed on the subject; any application you wish to address to the Court may be addressed to them by counsel, and perhaps with more convenience to yourself.
Lord Cochrane.I understood there was the case of a conspiracy, in which it had been held that a revision of the case, and a new trial could not be moved for, unless all the defendants appeared in Court.
Lord Ellenborough.That would be the same, whether the application was made by counsel or by yourself.
Lord Cochrane.It is only for the purpose of preventing my counsel from trespassing on the rules of the Court, that I have adopted this mode of proceeding, and I trust—
Lord Ellenborough.I am afraid, my Lord, we cannot hear you, unless all the parties are present in Court. That is the rule of the Court, and we have acted on it so lately as this very morning.
Lord Cochrane.I have to complain, that evidence was not brought forward on the late trial, which was extremely material to shew my innocence. If your Lordships will permit me to read the evidence to which I allude—
Lord Ellenborough.It will answer no beneficial purpose, because we cannot advert to what you are now stating, unless the other parties convicted are now in Court.
Lord Cochrane.If your Lordships will grant me permission to read the statement, you will be better able to judge of the propriety or impropriety of granting my application.
Mr. Justice Dampier.By the rules of the Court it cannot be; your Lordship has been informed of the practice of the Court, and from that practice, the Court has no power to depart.
Lord Ellenborough.The practice of the Court is exceedingly beneficial, and must be adhered to by us.
Lord Cochrane.My Lords, I have now in my hands several affidavits that will prove my innocence, if the Court will hear them. They are very short.
Lord Ellenborough.We have announced to your Lordship the rule of practice, and we are extremely unwilling to give you any pain, but we cannot forego the regular practice of the Court. We could not do it on the application of Counsel, and no more can we do it upon your application.
Lord Cochrane.I shall be exceedingly brief. The facts, which I shall prove by these affidavits, will sufficiently justify me; and it will redound to the honour of the judges of this land, to suffer me in this instance, though contrary to the practice of the Court, to shew my innocence; when those who are guilty of this transaction, and over whose conduct I have no control, dare not appear in the place where I now stand.
Lord Ellenborough.We must abide by the rules of the Court. If we give way to the importunity of one, we must give way to the importunity of all; we must administer the same justice to all, without distinction of persons.
Lord Cochrane.I beg only to state——
Lord Ellenborough.It would be idle to announce to your Lordship, that there is such a rule of practice as that which I have mentioned, unless we meant to abide by it; the rule is, that no application can be made for a new trial, unless all the persons convicted are here: we have acted on that rule this day; and if we were now to adopt a different rule, it might very properly be said, there was one rule for the poor and another for the rich.
Lord Cochrane.My Lords, I have briefly to state these facts, that before the late trial, so conscious was I of my innocence, that I did not think it necessary to instruct counsel, as several gentlemen in court know. I never read over the brief on the subject, till after the trial, when I found a very gross error had crept into it, with regard to the dress of the stranger who called at my house; and my servant is in consequence represented as having admitted that he was dressed in a red coat. The fact was, that being questioned as to the colour of the coat, he stated that he appeared to be an army officer, to which he very naturally attached the idea of a red coat, for the servants did not see it.
Monday,20 June 1814.
Mr. Gurney.I move your Lordships for the Judgment of the Court in the case of the Kingv.De Berenger, and others.
[The Officer called the Defendants, who appeared, excepting the Honourable Andrew Cochrane Johnstone, and Alexander M'Rae.]
[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 ofthis 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 beunlawful, 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 Kingv.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, thatper sethere 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 Kingv.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 hadno 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 Kingv.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 hadbeen 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 publicfunds 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 thepublic 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 statingevery 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 ofthis 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 apart 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 toyour 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 ofthis 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 otherpart 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 wayit 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 ofthis 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 iswrong, 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 ofthis 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 yourLordships, 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 withthem, 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; itamounts 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 abonâ fidedebt; 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 expectedsuch 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 toodeeply 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 swornby 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 fortheir 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 thetrial. 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 actingunder 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.