With regard to Sandom, the other defendant of this class, his part in this transaction was a very prominent and important part; and he was proved to be guilty by the evidence of others, not by his own;--he cannot plead the merit of a confession. It may, however, fairly be urged for all these three defendants, Sandom, Holloway and Lyte, that they did not aggravate their case at the trial, in the manner in which the other defendants aggravated theirs.
As to the defendant De Berenger, it appears that he was the hired and paid agent of Lord Cochrane, Mr. Cochrane Johnstone, and Mr. Butt; and having received his wages, he was attempting clandestinely to quit the country: If he had effected that purpose, he would have escaped punishment himself, and would probably have defeated justice with regard to the others. But, my Lords, his case has been greatly aggravated, as indeed have the cases of Lord Cochrane and Mr. Cochrane Johnstone, by attempts to defeat public justice, as absurd as they were wicked; for all the swearing before the trial, all the swearing at the trial, and all the swearing of to-day, has proceeded on the presumption, that if men will have the hardihood to swear, there will be found those who will have the credulity to believe.
Your Lordship has reported to the Court to-day, the evidence that was given on the part of Mr. Cochrane Johnstone and Mr. De Berenger, the letters which were stated by Mr. Tahourdin to have been written by Mr.
Cochrane Johnstone and Mr. De Berenger, on the 22d February, the day after this fraud had been perpetrated. Whether Mr. Tahourdin deposed to that which was correctly true, or not, appears to me to make no difference. If the letters were written at a period subsequent to their dates, they were fabricated for the purpose of constituting an artificial defence. If they were written at the time they bear date, then they were equally fabricated for an artificial defence; and at the very moment of the commission of the crime, the parties were providing the means of a false defence, in case they should be detected.
There was a flat contradiction between Mr. Tahourdin and the letter which Mr. Tahourdin produced; whether the evidence of the witness were true, or the statement in the letter were true, matters not; the contradiction, independent of all other circumstances, shews that the whole of this transaction was one premeditated scheme of fraud.
There was still more evidence respecting De Berenger; a number of witnesses were called to swear, that at the time when he was proved to have been at Dover, he was actually in London, or at least in London so short a time before, that he could not by possibility have been at Dover. The persons who formed this scheme totally forgot the sort of case they had to meet: they were endeavouring to meet a case of recognition of the human countenance, by witnesses who might be mistaken in that recognition; and they forgot, that to a recognition of the countenance, a recognition however which surpassed every thing that ever fell under my observation, though put to the severest test to which such testimony was ever exposed--De Berenger, seated among a number of persons, nothing distinguishing him, nothing to attract the attention of the witnesses, yet witness after witness, with but a single exception, on looking round the Court, recognized his person the moment he cast his eyes upon his countenance.--I say, my Lord, that they who contrived this false and perjured defence, forgot that, in addition to this, there was the delivery of De Berenger from hand to hand, from Dover into the house of Lord Cochrane; and into the house of Lord Cochrane it was never pretended that any other person but De Berenger entered.
Then, my Lords, we have the affidavit of Lord Cochrane, to which he has added the affidavit of to-day, respecting the dress which De Berenger wore upon that occasion. It is singular that a servant of Lord Cochrane's should have been called upon the trial, examined upon other points to the confirmation of his master's affidavit, and that my learned friends, who were of counsel for Lord Cochrane, whose ability, whose discretion, and whose zeal, no man who knows them can question, did not venture to put to that servant a question as to the colour of De Berenger's coat; and that they did not venture to call the two other servants, one of whom at least was in attendance, and if the other had been wanted, it would not have been difficult for Lord Cochrane to have detained him in England, that he too might have been examined. No man can doubt that the reason why my friends abstained from asking that question, and going into that examination, was, that after the evidence which had been given by all the witnesses for the prosecution, as to his dress, continued up to the last moment by the driver of the hackney-coach, who swore to De Berenger's entering the house in a _scarlet_ coat; if all the servants in Lord Cochrane's house had been called to swear that the colour of De Berenger's coat was _green_, no man alive could have believed them.
Your Lordships have before you the whole extent of this gigantic Conspiracy and Fraud; you have seen the stock account of these persons, and you find that on the morning of this day Lord Cochrane, Mr. Cochrane Johnstone, and Mr. Butt, were possessed of as much in Consols and Omnium, as, reduced to Consols alone, would amount to .1,600,000; on which sum, the fluctuation of only one-eighth per cent. would produce a loss or gain of .2,000; and although these defendants have not profited to the extent they anticipated, first, because the telegraph did not work,--no thanks to them that it did not;--and next, because the fruit of their fraud was intercepted,--the stolen goods were stopped in transitu,--still it appears from the evidence of Mr. Baily, that they have been materially enriched by their fraud, for they were enabled to get rid of this immense amount of Consols and Omnium, without loss, which, but for the operation of this fraud, they could not have done.
At the trial, Mr. Serjeant Best pressed very eloquently upon your Lordship and the jury, the former services of Lord Cochrane: I must observe, my Lord, that those services had neither been forgotten nor unrewarded by his Sovereign or his Country:--by his Sovereign, he had been raised to a high rank in his profession, and was in the path to the highest; he had also been invested with a most honourable personal distinction, which adds lustre even to nobility itself; which, at the same time that it was a reward for the past, ought to have been an incentive for the future:--He had been raised by a grateful Country to the proud and enviable station of representative in Parliament for the city in which your Lordships are now sitting; which, at the same time that it imposed on him the duty of watching, and if necessary, of animadverting on the conduct of others, especially bound him to guard the purity of his own. For all this, what return has he made?--he has engaged in a conspiracy to perpetrate a fraud, by producing an undue effect on the public funds of the Country, of which funds he was an appointed guardian, and to perpetrate that fraud by falsehood: He attempted to palm that falsehood upon that very Board of Government, under the orders of which he was then fitting out, on an important public service; and still more, as if to dishonour the profession of which he was a member, he attempted to make a brother officer the organ of that falsehood.
This offence, my Lord, does not proceed from the infirmity of a noble mind, from the impetuosity of youthful passion, from the excess of any generous feeling;--it is cold, calculating fraud, scarcely capable of aggravation; but, if it be capable of aggravation, it has received this great aggravation, that when threatened with detection, he endeavoured to avert it by the deliberate commission of a crime which, I repeat, has all the moral turpitude of Perjury, without its legal responsibility. I have to add one observation only, which applies equally to Lord Cochrane and Mr. Butt, that they stand before your Lordship, though convicted, unrepenting.
The Prosecutors in this case have, through many difficulties, conducted this Prosecution to its termination: they have sought an honourable end by honourable means: they have sought for justice, and justice only; and to your Lordships justice they commit these Defendants.
_Lord Ellenborough._ Let all the Defendants stand committed, and be brought up to-morrow morning to receive the Judgment of the Court.
Court of King's Bench.
_Tuesday, June 21, 1814._
_Charles Random De Berenger, Lord Cochrane, Richard Gathorne Butt, Ralph Sandom, John Peter Holloway, and Henry Lyte were brought up pursuant to the order of the Court to receive judgment._
MR. JUSTICE LE BLANC.
The six defendants, whose names have been now called, are to receive the judgment of the court, in consequence of a conviction upon an indictment for a conspiracy; that indictment, and the evidence which had been given upon the trial, on which trial the jury pronounced the several defendants guilty, was more particularly stated to the court yesterday, in the course of the discussion which took place. The sum of the offence charged in the indictment was, that these six defendants, together with two other persons, who do not now appear to abide the judgment of the law, had conspired together, by spreading false rumours and reports in different places, to occasion a rise in the price of the public funds of this country, on a particular day, and thereby to injure all those subjects who might purchase stock on that particular day; that was the sum of the charge contained in the several counts of the indictment on which the defendants were found guilty.
I will shortly advert to the circumstances of the case as they appeared in evidence. From that evidence it appeared, that some of the defendants had been, for a short time previous to the time when this conspiracy was put into execution, (namely the 21st of February,) largely speculating in the public funds of the country, and that at that time three of the defendants who now appear before the court, together with one of the defendants who does not appear, were either holders of stock, or persons who had contracted for the purchase of stock, to a very considerable amount. It appears, that on the 19th of February, which was on a Saturday, a person, not expressly spoken to by the witness, had purchased of a military accoutrement-maker in this town the dress, or at least part of the dress, and accoutrements, of a foreign officer, stating at that time, that it was designed for a person who was to appear in the character of a foreign officer, and that on the same day another person who was concerned in another part of the plot, had produced a small parcel at home which had been given to his wife, and the next morning (Sunday) had brought home two coats and two hats, evidently intended to fit out two persons with the appearance of foreign officers. Those are the first circumstances that appear previous to the day when this plan was to be put in execution.
The next period to be adverted to was the morning of Monday, the 21st of February, and on that morning, about a quarter after one o'clock in the morning, one of the defendants, Charles Random de Berenger, makes his appearance at the door of the Ship Inn at Dover, wearing the dress of a foreign officer, as described by four witnesses, who saw him at Dover with the scarlet uniform of a military officer under a grey great coat, and a military cap, the cap worn by military officers, applying to be furnished immediately with a chaise and four to proceed on his journey to town, holding himself out as a person who had just landed from a vessel come from the coast of France, and bringing very important intelligence of the success of engagements in that country, in which the Ruler of France had been defeated, with other circumstances not particularly necessary to be adverted to, and that the consequences would be in a very short time a peace between that country and this. He is expressly recognized and pointed out as being one of the defendants, Charles Random De Berenger, by four different persons who saw him at that time in the morning at the Ship Inn, where he continued for some time, while horses were preparing, having called for pen, ink and paper, to write a letter, as he professed, to be sent off to Admiral Foley, the Admiral commanding the ships stationed in the Downs, and while there actually dispatching a messenger with such letter to Admiral Foley, which is proved to be afterwards received by the Admiral, affecting to communicate this intelligence, and signing this by the affected name of De Bourg, as aid-de-camp, to what appears to be intended for Lord Cathcart.
From thence he is traced distinctly through the various stages where he changed horses, at Canterbury, Sittingbourn and Rochester, where he stopped and took some refreshment, and had some conversation with the landlord of the Crown Inn, who speaks to his dress at the time of the communication which he there made, similar to that which I have adverted to as having been made upon his first application for a chaise and horses at Dover. From thence he proceeds to Dartford, and from Dartford in like manner, the last stage, into London. The post-boy who drove him the last stage into town, besides speaking to his person, and all of them having picked out and fixed upon Charles Random De Berenger, whom they afterwards saw in court, as the person who had so travelled from Dover to London, having had opportunities, during the last stage, of seeing him while he was out of the carriage and walking up a hill, and while he conversed with them directing them to the place to which he should be driven. He inquired where he could first be set down, and could meet with a hackney coach; one place proposed by the postboy did not meet his approbation, he stating that it was attended with too much publicity, and he then directed himself to be driven to Lambeth where a hackney coach might be procured, and at the Marsh-gate turnpike at Lambeth he was ultimately set down, and stepped from the post-chaise into a hackney coach, and at that period he is spoken to positively, not only by the postboy who had driven him to that spot, but by the waterman who opened the door and put down the step of the hackney coach; he swears distinctly to his person and to his dress, that he had then a scarlet coat under a grey great-coat, with a military cap. From thence he directs himself to be driven to Grosvenor-square. Those are the orders given to the coachman when he gets into the coach, and then he directs the coachman to a particular house and number in Green-street, which was the house of one of the other defendants, Lord Cochrane, and into which house the coachman proves his having seen him enter in that dress first described by the witnesses at Dover, and confirmed by all the witnesses on his passage during his journey, namely, a red uniform coat under a grey great-coat. So much for that part of the transaction which relates to the spreading of false rumours and reports respecting what had happened in France, and the prospect of peace in the way from Dover to the place where he was last set down, the house of Lord Cochrane in Green-street on that same morning.
The other part of the plot or conspiracy was put in execution at somewhat a later date, by the efforts of some of the other defendants, namely, Holloway, M'Rae, Sandom, and Lyte, on that same Monday morning.
The innkeeper at Dartford receives a note from Sandom, ordering a chaise to be sent to Northfleet, at a particular hour, to bring persons to Dartford, and to have four horses ready to convey them to London.
Accordingly three persons, two of them, I think, described as wearing a military dress, and white cockades in their hats, come in that chaise to Dartford, from whence, with another chaise and four horses, the horses ornamented with laurel, and the men inside with white cockades in their hats, they drive at a quick pace to London, through some of the principal streets of London, over Blackfriars Bridge, and there directing to be set down at the same place, the Marsh-gate at Lambeth, they get into a hackney coach, and no more is heard of them. This seems to have been a counterpart--another branch of the plot, which was put into execution about two hours after the first chaise had arrived with the defendant De Berenger, and in that these persons are proved to have been concerned whom I have stated.
Immediately upon the arrival of De Berenger at the house of Lord Cochrane in Green-street, dressed as I have described, in the dress in which he was first observed at Dover, he appears to have dispatched a note to Lord Cochrane, who was not then at home, and that note is delivered to my Lord Cochrane at a place somewhere near Snowhill, where Lord Cochrane was at the time. What the contents of that note were, as the note has not itself been produced, we have no evidence. Upon that my Lord Cochrane immediately returns home in a coach. There is no doubt but the defendant De Berenger was then at the house of my Lord Cochrane, and there, before he leaves the house, with the privity and in the presence of my Lord Cochrane, he changes the uniform which he wore at the time, and in which he is proved to have entered clothed, and puts on a black coat of Lord Cochrane's; he exchanges his military cap for a round hat of Lord Cochrane's likewise, in the house, and then he gets into the hackney coach which had brought Lord Cochrane, and goes away in that dress, and in that coach, and on that same day, which is Monday the 21st of February, the whole of this property in the funds, or these contracts for stock in the funds (of which it is not now necessary to state the particular sums) which was held by Lord Cochrane, by Mr. Cochrane Johnstone, by Mr. Butt, and by Mr. Holloway, is sold by those persons at an advance which advance had been occasioned by that which had taken place in the course of the early part of that day.
The additional circumstances which are proved in evidence, and which I will only now shortly advert to, are those stated by the broker Fearn, who had been the purchaser and the seller of a considerable part of this stock for particularly three of the persons, Lord Cochrane, Mr. Cochrane Johnstone, and Mr. Butt; he was introduced by Mr. Butt to my Lord Cochrane and Mr. Cochrane Johnstone, and had managed, or appears to have had considerable hand in managing, these speculations in the funds.
In addition to that, it appears, that afterwards, I think, on the 27th of February, De Berenger disappears, and is some short time afterwards, the particular day was not, I believe, mentioned in evidence, apprehended, passing under a feigned name, at a distant part of the country, with considerable property at that time in his possession, having been before, up to the 21st of February, living as an insolvent within the rules of the King's Bench prison.
The question which is next material to be adverted to is, how far any of these circumstances implicate the defendants who are found guilty on this record. I have stated the circumstances with respect to the minor actors in this conspiracy. De Berenger, who was the actor and the propagator of the false rumours from Dover to London, and the other persons who were the propagators of these false rumours from Northfleet to London. It is singular that De Berenger should instantly drive, in the dress in which he travelled from Dover to London, to the house of my Lord Cochrane; should instantly send and have an interview with my Lord Cochrane; and that in the presence and with the knowledge of my Lord Cochrane, before he left his house, he should change that dress in which he had arrived, and should go away in a dress of my Lord Cochrane's: those are things which could not happen by accident; and the court see that they have not been accounted for in any satisfactory manner; and they certainly were not accounted for in a satisfactory manner to the minds of the jury, who have drawn the conclusion of guilt, by any explanation which was then given, either by word or upon oath. The manner in which it is attempted to be accounted for is, that De Berenger, who was but slightly known to my Lord Cochrane, had come at that time to him upon some other business; that as to the note which he sent to my Lord Cochrane, and which has not been produced, my Lord Cochrane at the time did not clearly perceive by whom it was signed, or from whom it came, and that he went home immediately upon receiving it, in expectation that it might be from an officer coming from abroad, bringing him an account of the health of a brother, who at that time, or shortly before, had been labouring under a dangerous illness; that note which was sent has not been produced, and no satisfactory evidence has been stated, either before the jury or since, upon the application which was made to the court for a new trial, to fix precisely the time when any account had been received by my Lord Cochrane of the illness of this brother, or holding out to him any expectation at what time, and by what means, he was likely to hear further accounts of him. If any such letter had been received, if it had come by a private hand, the person who brought it might have been called to show the information which he had received; if it had been brought by a ship, or by post, the mark on the direction and the envelope of that letter, would have given some explanation of it, but no such explanation has been held out either to the jury at the trial, or to the court since, on the opportunity which was afforded my Lord Cochrane yesterday of stating the grounds upon which he wished to have a new trial.
There is another circumstance in evidence which I have not yet adverted to, and it is this, it was proved in evidence, and I will not go through the particulars, that shortly before this 21st of February, namely, on the 16th of February, a broker, of the name of Smallbone, had drawn a bill on Jones, Loyd, and Co. in London, for the sum of 470_l._ 19_s._ 4_d._ payable to a number, upon which nothing arises, or to bearer; but that this bill, or check, was given to Lord Cochrane, so that it was in his hands; the money received for this check at the bankers, was proved in evidence to consist of particular bank notes; those bank notes were afterwards changed, and appear to have been changed industriously for other notes, by a person employed, I think by the defendant Butt, and part of the produce of this check had been employed by Lord Cochrane himself in the payment of a bill of a coal merchant of his, and a number of the small notes that had been produced by the change of some of the larger notes for which the check was changed, were traced to the hands of De Berenger himself; and many of them actually found in his possession, and in his trunk at the time he was shortly afterwards apprehended in a distant part of this kingdom; now this is a coincidence of circumstances which requires very satisfactorily to be accounted for, in order to raise a doubt in the mind of any one that there was a connection with respect to this transaction, and an intimate connection between the parties charged upon this indictment, I mean particularly the defendant, my Lord Cochrane, the defendant Butt, and the defendant De Berenger. Where we find that it is to the house of my Lord Cochrane that he comes immediately after having acted this part in spreading this rumour between Dover and London, and where the very notes that are found upon the person of De Berenger, before in insolvent circumstances, are part of the produce of that very draft which had actually been traced to the hand of Lord Cochrane, and by the intervention of another of the defendants, Butt, had likewise, I think, been through the hands of Mr.
Cochrane Johnstone paid to this very De Berenger, and found in his possession when he had absconded, and was going by another name in a distant part of this country.
With respect to the other part of the transaction, when we find who were the persons who benefited by this plan, which has been so put into execution; that the persons who were connected together in speculating in the funds up to the very period of the 21st, and were then the holders of very considerable sums, or contracts for those sums, down to the morning of the 21st, got rid of all of them in the course of the 21st, and when those circumstances of connection which I have adverted to have been so clearly made out, and no satisfactory account given, nor any reason given to expect that a satisfactory account would be given, if a further opportunity of investigating it should have been afforded, how can the court come to any other conclusion if they have to exercise their judgment upon the fact, but the conclusion to which the jury have come, namely, that the defendants are guilty; that it was a conspiracy ingeniously and cunningly devised, extensive in its operation, most mischievous in its effect, and contrived for the wicked and the fraudulent purpose of enriching some few individuals at the expense of others, who might be induced to sell, and to buy property on that day, or who might be in a situation to be obliged to do it, which was the case with the suitors of the court of Chancery.
The offence of conspiracy is in itself always viewed in the eye of the law as a heinous offence; and where a number of persons connect themselves together in order to carry into execution a plan which one alone cannot carry into execution, and where that is done with the evident intention of fraud, to put money into the pockets of certain persons, and by that means to defraud others, such an offence is and always has been considered in the eye of the law as an infamous offence, and calling upon the court who are to administer the justice of the country for a punishment, as far as they can inflict it, proportionate to the infamy of the crime.
It is with pain that the court in passing sentence upon the defendants have to advert to those circumstances, which, applying to particular persons, appear to aggravate the guilt of the offence of which they have been convicted; it is painful for the court to observe, that among those who stand for judgment there should be any person whose situation from rank, connections, education, and every thing held honourable among mankind, ought to have felt himself so far above being connected with persons of the description with whom he has been connected, and mixing in traffic with which he has been mixed, which independently of the crime of which he has been convicted is disgraceful and disreputable to any man, I mean gambling in the funds to the amount and to the extent to which it is proved; it is painful for the court to have to animadvert upon such an offence in such a subject; and more painful to feel, that in the exercise of their duty they are bound to say, that the greater opportunity which a defendant had of knowing his duty, and the higher he felt in rank and in situation, and the less temptation he ought to have felt to have offended the laws of his country, in this respect the heavier falls the weight of guilt upon him.
Another observation which one cannot fail to make in the present instance, is, that in the course of this inquiry, certainly with respect to the defence made by the defendant De Berenger, one cannot find any circumstances of which the court can lay hold, as a ground upon which they can mitigate the offence which the law calls for to be inflicted upon that defendant, because after a weight of evidence not depending upon the testimony of two, three, four or six persons, as to the identity of the man and his clothes, an attempt was made at the trial to delude the jury and the court, by inducing them to believe that he was at another place at the time, and that it was not De Berenger who had appeared at Dover; that it was not De Berenger who had travelled from Dover to London in the way described; and that it was not De Berenger who had been landed at last in the house of Lord Cochrane.
Though the court could not consistently with its rules hear the application for a new trial made by my Lord Cochrane within the first four days of the term, yet still it was willing to afford the opportunity at any time to state circumstances which might operate upon the mind of the court to show that the verdict had been improperly come to, and that the evidence did not justify it: but what was the attempt upon the part of that defendant, my Lord Cochrane, to show that he ought to have had a new trial?--that certain witnesses who were present at the time of the trial had not been examined; and that some of those who had been examined had not been examined to facts which it was wished they should be examined to; and what were those facts? why they went to show that at the time De Berenger was at the house of my Lord Cochrane he appeared, not in a red uniform, as was described by so many witnesses, and among others, the person who landed him at that house, but that he had on the green uniform, in which, from the situation he had been in, in a rifle volunteer corps he had been in the habit of appearing. It was probably a very prudent exercise of discretion in those who had the conduct of the case of that defendant at the trial, not to attempt to call servants at the house for the purpose of disproving a fact which had been proved by so many witnesses; and it is impossible to conceive that any change of dress could have taken place during that short interval, from the time at which he had got out of the coach, to the period when he had appeared before Lord Cochrane; or what could be the motive for changing his dress, if he then had on the uniform of any corps of volunteers in this town.
These are the observations which naturally present themselves as arising out of the detail of the evidence which has been read. It cannot be necessary to expatiate at all upon the nature of the offence. It is a conspiracy of the greatest magnitude, and of the most prejudicial effect to the community; it is conceived in mischief, and a great deal of deliberation practised previously to its being put into execution. In this respect an offence of this description differs from most of the offences which come under the cognizance of a court of criminal jurisdiction. In many cases offenders have been led to transgress the law by a suggestion of the moment; by a temptation, which, as it has been urged sometimes at the bar, human nature could not resist; but in the present instance it has been deliberately undertaken; great contrivance, and great previous consideration, have been used for the purpose of laying the plan and procuring the actors who were to bear their different parts of it; and the whole object of it founded in avarice on the part of some, and the hope of gain for acting that part which the others took in this transaction, not for their own immediate emolument, except so far as they were to receive the wages of their iniquity.
The court has deliberated upon the case, and the court cannot, in this instance, feel itself justified in measuring out justice to one by a different measure from that in which justice would be measured out to others; the sentence therefore of the court upon you, the several defendants now upon the floor, is, That you, Sir Thomas Cochrane, otherwise called Lord Cochrane, and you Richard Gathorne Butt, do severally pay to the King a fine of one thousand pounds each; that you, John Peter Holloway, the third person who was to be benefited by this conspiracy, do pay to the King a fine of five hundred pounds; that all you the six several defendants, Charles Random De Berenger, Sir Thomas Cochrane, commonly called Lord Cochrane, Richard Gathorne Butt, Ralph Sandom, John Peter Holloway, and Henry Lyte, be severally imprisoned in the custody of the Marshal of the Marshalsea of our Lord the King for twelve calendar months; and that during that period you, Charles Random Be Berenger, you, Sir Thomas Cochrane, otherwise called Lord Cochrane, and you, Richard Gathorne Butt, be severally set in and upon the pillory, opposite the Royal Exchange in the City of London, for one hour, between the hours of twelve at noon and two in the afternoon; and that you be now severally committed to the custody of the Marshal of the Marshalsea, in execution of this sentence, and be further imprisoned until your several fines be paid.
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