Then he says, on cross-examination, "I let him in at a little after eleven at night. He rapped at the door in his usual way; his usual rap was not over loud, between loud and gentle; he went to his bed-room that night; I did not see him in bed the next morning, I heard him go into the bed-room." Then he is shewn a letter, which he says, "I wrote to Lord Yarmouth," (but that is not given in evidence) "I have my master"s military grey great coat here at Guildhall; I never acknowledged that my master slept from home that night, to Mr. Murray; I never told either Mr. or Mrs. Davidson, that coming home and not finding my master at home, I had left the key for him at the usual place in the area, that he might let himself in; I never told them so, either on Monday the 21st or any other day, to the best of my knowledge. He has no attendance in the morning, he does every thing for himself, he does not usually ring his bell of a morning before he comes down to breakfast; he is a very quiet man, I never knew him otherwise, he never makes a disturbance, he walks about very much. My master finally left his lodgings on Sunday the 27th; I remember changing a .50 note with Seeks," (that is the .50. I have mentioned to you) "received it from Mr. De Berenger, I received it on the 27th, the day he went away; I took his things to the Angel Inn behind Saint Clement"s; a day or two before he left to go into the country he gave me .20. I never saw him give Sophia .13. if I was in the room, I did not notice it. I do not remember, after my master finally went away, Mr. Cochrane Johnstone"s calling with a letter; I never told Mrs. Davidson, that a gentleman who called there was Mr.
Cochrane Johnstone. I was not at home; she told me a gentleman had called there, and described him; I said, most likely it was Mr. Cochrane Johnstone." Upon his examination I thought he had said, that he had seen him only once, but then he said, at last, that it was only once at his house. "I did not tell her on the Sunday, that if my master had been at home on the Sat.u.r.day, when Mr. Cochrane Johnstone brought that letter, he would have gone off on the Sat.u.r.day night; I did not tell her so either on the Sat.u.r.day or the Sunday. My master was at home every day from the 20th to the 27th, going out as usual. On the 21st, he went out to dine; he did not tell me where he was going to, or when he came back where he had been to, that I recollect; he did not tell me he had been to Mr. Cochrane Johnstone"s, when he came home, nor before he went out, that he was going there. When I came home on the Monday, I saw a strange black coat; I cannot tell whether the coat fitted my master; I never saw it on; I brushed it; I am used to brushing coats; I did not know whose coat it was; I cannot tell whether it was the coat of a man six feet high. I swore an affidavit; I drew that affidavit myself; I told Mr.
Tahourdin of his absence on the 7th or 8th of March; I drew out the affidavit before that time, and did it without any sort of concert with any body whatever, merely for the vindication of my master"s character.
I sent the affidavit to be published; I found my master a very injured gentleman; I took it to Mr. Cochrane Johnstone, and he published it."
And then he says, "I let him in," that is, De Berenger his master, "on Sunday the 20th."
Ann Smith, the wife of William Smith, says, "I was a servant with my husband to Mr. De Berenger, in February last, and had been so two years and a half. I saw my master at home on the 20th of February; he went out about nine o"clock in the morning, and came in again between ten and eleven; he did not stay at home long then, before he went out again. My husband and I went out between four and five, after my master was gone out; he went out about four o"clock. My husband and I returned home about eleven, a few minutes before my master; my husband got in a little before me. My master came in that evening; he was let in by my husband, and I heard him above stairs; he had a bit of bread and a gla.s.s of ale that night for supper. I did not see him that night; it was my business to make his bed. I got up on the Monday morning about seven, that was the Sunday and Monday before he finally went off, I am sure; I usually get up about seven. My master went out that morning before breakfast; my husband went out about eight, and my master went out a little before him; I did not see him go out nor hear him; I did not know he was out till I let him in; I made his bed on the Sunday morning; I was up stairs making his bed, and he went out, I looked out of the window and saw him go; I made his bed on Monday, but that was not till after he came home, which was about twelve o"clock; when I found he had been out, I went up stairs immediately to make his bed." You will consider whether there is any room for believing she might be correct, and that he might have lain down upon his bed before she made it. "The bed appeared as usual, as if it had been slept in on Sunday night; I and my husband slept in our bed, and I made his bed on Monday as well as on Sunday. I remember how my master was dressed on the Monday when he came home; he had a black coat on; he had a bundle in his hand; I saw a part of a coat where the bundle was open, a grey coat just where the knot was tied; my master continued to sleep regularly at home til he finally went away."
Upon her cross-examination she says, "my master had no other man servant but my husband; he used to wait upon him, and do any thing he was requested to do. I used to carry up breakfast when he rang, if my husband was out; he did not ring for my husband to attend him in the morning to dress. I supposed my master had breakfasted out when he came in; I was rather surprised that he had not rung. On the Sunday, when he went out, he had on his black coat and waistcoat, and grey overalls; I did not remark that the coat was too long for him; I do not know how he was dressed when he went out on the Monday; he came home in a black coat; I cannot tell whether it was the black coat in which he went out on Sunday. I never saw Lord Cochrane. I never observed the black coat at all in the bundle; I saw part of a grey coat, and the green uniform coat was in the bundle. There was nothing extraordinary in my master"s going out in green, it was his drill dress; he was in the habit of going out in it, and returning in it; I never knew of his going out in a green drill dress, and returning with a black coat before. I made an affidavit; I saw n.o.body on the subject of that affidavit; I saw Mr.
Tahourdin a few days after making the affidavit. Mr. De Berenger wore whiskers sometimes; I do not know whether he wore whiskers then or not, I did not see much of him. I had not seen the bed on Monday morning till after his return."
Then the ostler at Chelsea, and his wife, are called to prove, that he was at a late hour in town. John M"Guire says, "I am the ostler at Smith"s livery-stables, at the Cross-keys yard, Chelsea. I am acquainted with the person of Mr. De Berenger; I remember seeing him on the 20th of February; it was on a Sunday. I remember it perfectly well, because I knew he was within the Rules of the King"s Bench; and I determined to ask his servant, how he was out of the Rules. He had lived at Chelsea before. It was a quarter past six in the evening that I saw him at Smith"s stable-yard gate; he asked me if the coach to London was gone; I told him the six o"clock coach was gone, but the seven would be ready in three quarters of an hour; he said, it would not do to wait for the seven o"clock coach, and he turned round and took his way to London.
When I went home that night, I mentioned to my wife, that I had seen Mr.
De Berenger at a quarter past six. I was induced to mention it, from knowing he was in the Rules of the Bench, and not having seen him that way for some time before; he went from the lodgings he had at Chelsea, to the King"s Bench."
Upon cross-examination, he says, "I have known him three years and a half, I knew him to be an officer in a corps of Riflemen; that day fortnight I saw his servant, on the 6th of March, and he said, he was not clear of the Bench then. Last Monday week I was examined by the attorney. He had on, when I saw him, a black coat, a black waistcoat, and grey overalls or pantaloons. I have seen William Smith this morning.
De Berenger wore whiskers when I knew him before, but when I saw him on this Sunday he was close shaved, he had none then; it was three miles and a half from the Asylum." Now it appears, that De Berenger was three miles and a half from the Asylum at a quarter past six, where he had dined; if he had dined any where, we have not heard. He says, "he thought it was wrong to be out of the Rules, and he was shocked at it."
Then Mr. Hopper says, "I am an architect. I saw Mr. Cochrane Johnstone"s premises at Alsop"s Buildings two nights ago." He is shewn the plan and prospectus, and he says, "From the trouble that must attend it, a compensation of from, .200 to .300. might not be excessive." I have mis-stated it, therefore before; he does not say, it would not be excessive, but it _might_ not be so.
Then Mrs. M"Guire says, "I am the wife of M"Guire, the ostler. I did not know Mr. De Berenger, when he lived at Chelsea, I knew Smith his servant. My husband mentioned to me on the 20th of February, his having seen Mr. De Berenger, Smith"s master; he mentioned it to me at ten at night; it was the Sunday before Shrove Tuesday, it was my child"s birth-day, and therefore I remember it. My husband told me, he had seen him at about a quarter past six; he said, he wondered whether he had got his liberty yet or not; I cannot particularly say whether he said it was shocking or not; he said, he wondered whether he had got his liberty."
How this should have excited the curiosity of this man, one cannot well conceive; but one cannot comment upon that which one cannot read and believe.
Then Henry Doyle Tragear is called; he says, "I was at Mr. Donithorne"s house in York-street, Westminster, in the month of February last. I was staying there; I went there upon the occasion of my leaving my house, No. 39, Little Queen-street, Holborn, where I had carried on the hatting business. I left my house finally on the 17th, and went to Donithorne"s; I remain at his house still. I had seen Mr. De Berenger frequently previous to that, at Mr. Donithorne"s house. I particularly remember having seen him there on Sunday the 20th of February; I saw him twice that day; I saw him between nine and ten in the morning, and again between eight and nine in the evening; I saw him at Donithorne"s house both these times; he might stop about half an hour, more or less. I have seen him frequently talking with Mr. Donithorne about some drawings, designs for pieces of furniture, and things of that sort. Donithorne is a cabinet maker. Donithorne has shewn me these things before. I am a hat manufacturer; I am not entirely out of business but I have not a house at the present moment; I went there to reside till I could get a house to suit myself, to start in business again." According to the wife, it did not appear as if he was likely to go into business again. "My wife, Mrs. Donithorne and Mr. Donithorne were there in the evening. When he came, Mr. Donithorne went into the garden with him; he said he would not come into the parlour to disturb the company; I had seen him repeatedly before."
Then upon cross examination, he says, "I was not struck with any alteration in his appearance that night; he had no whiskers on that night; I do not know whether he had ever worn whiskers before; he had a black coat on that day; he had his hat on. It was between eight and nine when they took a walk in the garden. I cannot say whether his hair was powdered; they went out to take a survey of the premises in the morning.
I have seen Mr. Donithorne and Mr. Tahourdin together one day last week.
I will swear, that I did not know they were acquainted together before that time; I never was sent for to become a witness upon this occasion; I went myself; Tahourdin did not send for me; I went to Tahourdin I think one day last week. I did not know that I was to be a witness till last week, or that it was material I should recollect the 20th of February. I let my house on the 17th of February to Samuel Nicholson; and on the Sunday morning following Mr. Donithorne came to my room, and told me a gentleman was come to look over the house, and if I would get up he should be obliged to me. I have seen Smith, the servant." He then says, "I have been bail twice, once for fifteen pounds, that I believe is settled; I have been bail again, but I do not quite know whether that has been settled, nor the amount. I don"t recollect if I have been bail oftener."
Then Mrs. Tragear, the wife of the last witness, is called; she says, "I know the defendant De Berenger; I have seen him often. I and my husband went to stay at Donithorne"s when we gave up our house; the day we gave up our house was the 17th of February. Mr. De Berenger called at Donithorne"s on Sunday the 20th, between nine and ten in the morning; we were not up then. Mr. Donithorne was in the cabinet business. He came up and said, he was anxious we should get up, as a gentleman was come to look over the house. When I got up, I threw down the sash, and saw Mr.
De Berenger; he was measuring the ground in the garden. I am sure it was he; I saw him again in the evening between eight and nine; we were in the parlour along with Mr. and Mrs. Donithorne; asked him to come in; and he said he would not disturb the company; he wanted to speak with Mr. Donithorne; they walked backwards into the garden, and I saw him no more."
Then, on cross-examination, she says, "my husband is deaf at times; Mrs.
Donithorne came to call us; Mr. De Berenger went into the attics; he did not go into our room." It is afterwards said by Donithorne, that he went two or three times into it. "I do not remember seeing any one in the garden with De Berenger and Donithorne; one of them held the measuring rod and the other, took the figures down. There was no snow; I think it was a wet morning, and the rain had cleared the snow away. My husband failed on the 17th of February; he then came to Mr. Donithorne"s, who is a cousin."
Then Donithorne is called; he says, "I live in York-street, Westminster.
Mr. and Mrs. Tragear came to live at my house, on Thursday the 17th of February. I had known De Berenger a long while; I am very well acquainted with his person; I am a cabinet-maker; De Berenger had furnished me with designs for furniture. I remember seeing him on the Sunday morning, after Tragear came to my house, which would be the 20th of February, between nine and ten in the morning; he came to look over my ground, as I was going to make some alterations in my little garden, and also some designs for cabinet work. I furnished Mr. Cochrane Johnstone"s house in c.u.mberland-street, for Miss Johnstone. I saw him again between eight and nine in the evening; I let him in, and asked him to walk into the parlour where we were sitting; he said he would walk into the back-parlour; he stayed about a quarter of an hour or twenty minutes; he did not go into the garden. In the morning, we were I dare say, an hour together in the garden; he called in the evening, to give me an answer when he was to draw a plan for me." (This does not appear to be business of sufficient consequence to have led this man twice there in the course of that day.) "I was going to convert the front part of my house into an inn, and the back part into pleasure-ground; it was a misty rainy morning, and very cold."
On his cross-examination, he says, "he came as the friend of Mr.
Cochrane Johnstone, to give me plans for furniture; I proposed to him surveying my house, with a view to the improvements I intended to make.
I went and called Mr. and Mrs. Tragear, and desired them to get up; I have no doubt of it, I went twice." He is then asked as to some writs against persons in the Stock Exchange; he says, "I employed the attorney, Mr. Tahourdin, by desire of Mr. Cochrane Johnstone, to issue 135 writs; Mr. Cochrane Johnstone is to pay for them;" it appears that these writs are against persons for stock-jobbing transactions. "Tragear never failed, to my knowledge."
Gentlemen--This is the whole of the evidence on each side. I have made my observations upon it, as it has proceeded. You have heard from me already, that this is a case in which both the individuals and the public are deeply concerned. It is important that public justice should be vindicated by the conviction of the defendants, if they are guilty; and that justice should likewise be done to the defendants, by exempting them from punishment, if they have committed no crime. You will consider upon the whole of the evidence, whether these several parties were connected in one common plan, and were using their several endeavours and means to raise the Funds for corrupt advantage, by false contrivances, and the circulation of false intelligence--if you believe that all of them were concerned in it, you will find them all guilty--if you believe that any of them are exempt from a share in this Conspiracy, you will acquit them.--You will now consider of your Verdict.
_Mr. Richardson._ Your Lordship stated, that there were some Counts upon which they ought not to be found guilty.
_Lord Ellenborough._ Yes; Gentlemen, you will find the defendants not guilty upon the first and second Counts of the Indictment, as those allege facts and motives, in which they cannot all be supposed to be joined.
_A Juryman._ They are guilty or not guilty of a Conspiracy.
_Lord Ellenborough._ Yes; a Conspiracy, which is a crime that cannot be committed by one; it must be committed by more than one.
_The Jury retired at ten minutes after six o"clock, and returned at twenty minutes before nine with their Verdict, finding all the Defendants--GUILTY._
Court of King"s Bench.
_Tuesday, 14 June 1814._
LORD COCHRANE.
My Lords, scarcely recovered as I am from the shock, which I experienced on hearing of the verdict p.r.o.nounced 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 trespa.s.sing 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----