Part 239

"Sir Thomas Cochrane, commonly called Lord Cochrane, one of the above named defendants, maketh oath and saith, That the several facts and circumstances stated in his affidavit, sworn on the eleventh day of March last, before Mr. Graham, the Magistrate, are true; and this deponent further saith, that in addition to the several facts and circumstances stated in his said affidavit, he deposeth as follows, (that is to say); That he had not directly nor indirectly any concern whatever in the formation, or any knowledge of the existence of an intention to form the plot charged in the indictment, or any other scheme or design for affecting the public funds. That the sale of the pretended omnium on the twenty-first day of February, was made in pursuance of orders given to his broker at the time of the purchase thereof, on or about the fourteenth of that month, to sell the same whenever a profit of one per cent. could be realized; and that those directions were given, and the sale thereof took place without any knowledge, information, hint or surmise on the part of this deponent, of any concern or attempt whatever to alter the price of the funds; and the said sale on the twenty-first took place entirely without this deponent's knowledge. That when this deponent returned home from Mr. King's manufactory, on the twenty-first of February, which he did directly after the receipt of a note, he fully expected to have met an officer from abroad, with intelligence of his brother, who had by letter to this deponent received on the Friday before, communicated his being confined to his bed, and severely afflicted by a dangerous illness, and about whom this deponent was extremely anxious; but this deponent found Captain De Berenger at his house, in a grey great coat, and a green jacket. That this deponent never saw the defendants, Ralph Sandom, Alexander M'Rae, John Peter Holloway, and Henry Lyte, or any or either of them, nor ever had any communication or correspondence with them, or any or either of them, directly or indirectly; that this deponent, in pursuance of directions from the Admiralty, proceeded to Chatham to join his Majesty's ship "The Tonnant," to which he had been appointed on the eighth day of February last; that the ship was then lying at Chatham; that previous to the eighth day of February, this deponent applied to the Admiralty for leave of absence, which was refused until this deponent had joined the said ship, and had removed her down to Long Reach; that this deponent in pursuance of those directions removed the said ship from Chatham to Long Reach; and after that was done, viz. on Saturday the twelfth day of the said month, this deponent wrote to the Admiralty, to apply for leave of absence for a fortnight, for the purpose of lodging a specification for a patent, as had been previously communicated by this deponent to their Lordships; that leave of absence was accordingly granted for fourteen days, commencing on the fourteenth of the said month; that this deponent was engaged in London respecting the said specification, till the twenty-eighth of the said month, when the said specification was completed; and this deponent left town about one o'clock on the morning of the first day of March, and arrived at Chatham about day-light on the same morning; that on the eighth or ninth of the same month of March, this deponent received an intimation, that placards were affixed in several of the streets, stating that a pretended Colonel Du Bourg had gone to this deponent's house in Green-street; that he was on board the said ship at Long Reach, and in consequence went to Admiral Surrage, the Port Admiral at Chatham, to obtain leave of absence, which was granted previous to the receipt of the leave forwarded by the Lords Commissioners of the Admiralty; this deponent arrived in London on the tenth of that month, to the best of his belief; and that after his arrival, he himself, conscious of his own innocence, and fearing no consequences from a developement of every part of his own conduct, and desiring only to rescue his character from erroneous impressions made by misrepresentations in the public prints, he without any communication whatsoever with any other person, and without any assistance, on the impulse of the moment prepared the before-mentioned affidavit, which he swore before Mr. Graham, the magistrate, on the eleventh; that at the time he swore such affidavit, he had not seen or heard the contents of the report published by the Committee of the Stock Exchange, except partial extracts in the newspapers; that when this deponent understood that a prosecution was to be instituted against him, he wrote to Admiral Fleming, in whose service Isaac Davis, formerly this deponent's servant, then was, under cover to Admiral Bickerton, at Portsmouth, and that Admiral Bickerton returned the letter, saying, that Admiral Fleming had sailed for Gibraltar; that this deponent sent his servants, Thomas Dewman, Elizabeth Busk, and Mary Turpin, on the trial of this indictment, to prove that an officer came to this deponent's house on the morning of the said twenty-first of February, and to prove the dress that he came in, but that the said Thomas Dewman only was called; and as this deponent has been informed, he was not interrogated as to the dress in which the said officer came to his house; and this deponent further saith, that had the said witnesses been examined, according to the directions of this deponent, and who were in attendance on the Court for that express purpose, they would, as he verily believes, have removed every unfavourable conclusion respecting this deponent's conduct, drawn from the supposed dress in which the said De Berenger appeared before this deponent on the twenty-first of February, and on which circumstance much stress was laid in the charge to the Jury, the said De Berenger's dress being exactly as stated in this deponent's former affidavit hereinbefore-mentioned; and this deponent solemnly and positively denies, that he ever saw the said De Berenger in a scarlet uniform, decorated by medal, or other insignia, and he had not the least suspicion of the said De Berenger being engaged in any plot respecting the funds, but merely believed he wished, for the reasons stated in this deponent's former affidavit, to go on board this deponent's ship, with a view to obtain some military appointment in America; and this deponent declined complying with his request to send him on board his ship, without permission or an order from the Lords of the Admiralty; and this deponent further saith, that he was in no degree intimate with the said De Berenger; that he had no personal knowledge of his private or public character; that he never asked the said De Berenger to his house, nor did he ever breakfast or dine with this deponent therein on any occasion whatsoever; and further, this deponent saith, that he hath been informed, and verily believes, that the Jury who tried the said indictment, and the Counsel for the defence, were so completely exhausted and worn out by extreme fatigue, owing to the Court having continued the trial without intermission for many hours beyond that time which nature is capable of sustaining herself without reflection and repose, that justice could not be done to this deponent.

Cochrane."

Sworn in Court the 14th June 1814.

"In the King's Bench.

"The King against Charles Random De Berenger, & others.

"Thomas Dewman, servant to Lord Cochrane, maketh Oath and saith,----"

Lord Ellenborough. This was a person called as a witness on the trial; if the affidavit goes beyond what he then stated, or in contradiction to what he stated, it cannot be received.

Lord Cochrane. Would your Lordship permit me to explain the reason why he was not interrogated?

Mr. Justice Bayley. It is a settled rule, not to allow the affidavits of persons who might have been called upon the trial, much less of persons who were called.

Lord Ellenborough. And if any were not called, they were not called under the discretion of your Lordship. It would be a very dangerous thing, if persons whose evidence may have been discreetly kept back, should afterwards be admitted to come forward as witnesses.

Mr. Dealtry. The next is the affidavit of Sarah Busk.

Lord Cochrane. My humble hope is, that you will be pleased to grant a new trial, in order that these persons may have the opportunity of being examined: they were not called from an error in the brief, which (so little was I conscious of any participation in the fraud) I had not even read.

Mr. Gurney. My Lord, the Counsel for the defendant were not uninstructed, as to the evidence which these persons could give; because, annexed to the affidavit which your Lordship has stated, of Lord Cochrane, were the affidavits of all the servants, of the one who is not now in England, as well as of the three who are in England. They are all printed together in Mr. Butt's pamphlet, which was produced at the trial. Therefore the Counsel for the defendant were informed of every circumstance, and they might, if they had thought it would serve their client, have called all those persons as witnesses.

Mr. Justice Le Blanc. There is no rule better established, than that after trial we cannot receive the affidavits of persons who were called, or who might have been called as witnesses. Whatever might be the reason for keeping back their testimony, that the Court cannot hear.

"In the King's Bench.

"The King against Charles Random De Berenger & others.

"The Honourable William Erskine Cochrane, Major in the fifteenth regiment of dragoons, now residing in Portman-square in the county of Middlesex, on his oath saith, That he was seized with a violent and alarming illness on the first of January one thousand eight hundred and fourteen, at Cambo in the south of France; and that this deponent remained in a state of dangerous illness until the eighteenth of the following month. That early in February last he wrote to his brother Lord Cochrane, to acquaint his Lordship with this deponent's situation, as deponent had then very little hope of recovery, and telling him that he had received a notification that he would be ordered to England, where he should proceed, if ever able to undertake the journey. And this deponent further saith, that the annexed certificate was given to him for the purpose of being laid officially before a board of medical officers at Saint Jean de Luz, by the surgeon of this deponent's regiment, and is in the said surgeon's hand-writing.

W. E. Cochrane."

Sworn in Court, this 14th day of June 1814. By the Court.

"Statement of Major the Honourable William Cochrane's Complaint. Monday, February 12, 1814.

"Was seized with the usual symptoms of fever on the 1st of January, which was continued for the first three days; then the remittent character developed itself. The evening paroxism was severe every day, and he was all through much worse on the third day than on the two preceding days. The treatment consisted in keeping the bowels perfectly free and the skin moist, and this was generally obtained by calomel and antimonial powder combined, in the proportion of two grains, and three every third hour, and an occasional purge of neutral salts. When the bowels were well emptied, I frequently gave saline draughts, which kept the skin moist and favourable for the exhibition of bark, the use of which was commenced the 16th day. On the 23d he had a crisis, and went on very well till the 1st of February, when he suffered a relapse, attended with rather alarming symptoms. There was great determination to the head, the eyes were suffused, great drowsiness, and a tendency to comae; however, these symptoms gave way in six hours, in which time he was actively purged, the skin was made moist, and a profuse perspiration kept up for twelve hours, which left him perfectly tranquil and free from fever. From this term I continued to give him small doses of calomel, till his mouth was very slightly affected. He continued free from fever from the morning of the 2d till the 7th; his appetite good, his strength increasing, and every sign of health. On that morning he had a second relapse, but by no means so violent, though more embarrassing; he has not been well since, and has suffered very much indeed. The treatment latterly has been attention to the state of his bowels and diet. He has not taken bark since his first relapse. I hope the change of air and objects will serve him.

Tho. Cartan, Surgeon, 15th Hussars."

Lord Ellenborough. This affidavit is not even material to shew, that Lord Cochrane was in possession of his brother's letter previous to the morning of the 21st of February, so as to account for a connexion existing in his mind between the note he on that morning received, and the state of his brother's health, which should induce him immediately on the receipt of it, to return home?

Lord Cochrane. I was not present at the trial, or those witnesses would have been examined.

Lord Ellenborough. But those witnesses would not have gone to this point, and your mind must have been drawn to it at the time you made your affidavit, when you came to mention your brother's illness?

Lord Cochrane. My brother's affidavit states, that he wrote to me early in the month, and I received his letter on the Friday previous to the fraud.

Lord Ellenborough. That was capable of being most distinctly verified.

Mr. Justice Bayley. The original letter is not annexed to the affidavit?