Part 235

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.

Court of King's Bench.

Monday, 20 June 1814.

Mr. Gurney. I move your Lordships for the Judgment of the Court in the case of the King v. De Berenger, and others.

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 of this 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 be unlawful, 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 King v. 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, that per se there 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 King v. 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 had no 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.