Part 234

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 Cumberland-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 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.