Volume 2 — APPENDIX II. LORD GAMBIER’S SECOND DESPATCH IGNORING MY SERVICES ALTOGETHER. (continued 2)

I stated in the House of Commons that I gave no instructions to counsel, and attended no consultation. I now see the folly of this negligence; for if I had personally attended to my interests, and conferred with my advocates on the subject, I have no doubt that I should have fully convinced them of my innocence. I believe that, subsequent to the trial, there is not a single individual with whom I have conferred on the subject who has not left me with that impression.

To come now to the manner in which the error in the brief originated, I have no hesitation in acknowledging that I am at issue with my solicitors on that point. Their account is, that two of my servants, whom I had sent to their office to be examined as to the evidence they could give on the trial, admitted that De Berenger wore a red coat with a green collar. My servants, on the contrary, assure me that they did not, and could not, admit that it was a red coat; because, when they saw De Berenger, he wore a great-coat buttoned up, and they neither saw the body nor the skirts of the under coat; but the collar, and so much of the breast as 458they saw, were green: but they admit, that on being questioned by my solicitors, whether they could swear that it was not a red coat; they confessed that they could not, and admitted that it might be red, and that the green which they saw might be green facings to a military coat: but they have constantly declared that no part which they saw was red, and they deny that they ever admitted that they saw any red.

My solicitors were in possession of their previous affidavits, describing De Berenger to have worn a grey great-coat buttoned up, and a coat with a green collar underneath. I shall not deny that my solicitors considered the admissions of the servants to amount to an acknowledgment that the coat was red; but I shall ever believe that such admissions actually went no further than that, since they did not see the body of the coat, it might, for aught they knew, be red—and possibly, that they supposed it was red, because the wearer having a sword and military cap, they conceived him to be an army officer. The description which my solicitors introduced into the brief, in consequence of this examination, namely, a red coat with a green collar, neither accords with my description nor with the coat actually worn by De Berenger on his way from Dover, which, as proved by the witnesses on the trial, was either wholly scarlet, or turned up with yellow.

If I had been a party to the fraud, and had sworn falsely as to the colour of the coat, I doubtless might also have been wicked enough to have endeavoured to suborn the servants to perjure themselves in my behalf; but I should hardly have ventured to send them to my solicitors to be examined on the subject, without previously instructing them myself: and it can hardly be supposed, that if they had been on their guard from any previous instructions of mine, that my solicitors, in the common course of examination, would have obtained from them any evidence which militated against my own statement. I should naturally, too, have felt some anxiety to know the result of their examination; yet the truth is, that I never asked them a single question on their return from the solicitor’s office. Indeed, if I had questioned 459them as narrowly as one may suppose a guilty man who had sent his servants on a guilty errand of so much danger and importance would have questioned them, I should in all probability have discovered whether they had or had not executed that errand to my satisfaction. At all events, I should have been anxious to know the result of their examination as entered in the brief; and if it be true that it was actually read to me by my solicitor, I must, under such circumstances, have lent too attentive an ear to have suffered the ruinous word red to have escaped my observation. I must, too, have shown certain symptoms of uneasiness on hearing that word, which could not have escaped the observation of the reader, particularly as the contradiction between that word and my oath must have been present to his mind. And lastly, with the knowledge that the brief contained a flat and fatal contradiction to my own affidavit out of the mouths of my own servants, I should hardly have suffered it to have gone to my counsel in that state; and then have pressed, in the way in which I did press, to have those servants examined at the trial.

How my solicitors could admit so fatal a contradiction into the brief, without drawing my attention to it immediately by letter, it is for them to explain; yet they admit that they never wrote to me on the subject. They very quietly, however, inserted it, and let it remain in the brief until I should happen to discover it; which, as I have pretty clearly proved, never did happen previous to the trial. It was on the second day of the trial, and not before, that, to my very great surprise, I discovered in a newspaper the admission of my counsel in contradiction to my affidavit. “Yet,” says the Attorney-General, “there was no mistake and no surprise: if there had, the Judges would have dispensed with their rule, and granted a new trial: but, no! there was nothing of that sort here.”

In whatever way my solicitors took the examination of my servants on the subject of De Berenger’s dress, it is indisputable that nothing can justify their neglect in not immediately drawing my attention to the difference between the result of 460that examination and the statement in my own affidavit. “It never can be permitted,” said the Solicitor-General, “that a person accused should try in the first instance how far he could go without his own witnesses; and then, should the result prove unfavourable, how far he could go with them.” How unjust this observation is, as applied to me, is well known to my solicitors—they well know how anxious I was to have my witnesses brought forward in the first instance. Those witnesses would and could conscientiously have sworn to the green collar, which would have sufficiently corroborated the description in my affidavit, as it never was pretended that De Berenger wore a green collar to his scarlet coat.

It was asked by the Attorney-General “if the servants could have confirmed the affidavit, where was the advocate who could have been stupid enough to hesitate to produce them?” It is possible, however, that advocates may be prejudiced, may be mistaken, and may be misled by their brief.^[124]

I hope that it will now appear to be satisfactorily proved, not only that I did not see De Berenger in his scarlet coat, but that he did not come to my door, nor even enter the hackney-coach in that dress.—(See the annexed affidavits.)

In reply to the Solicitor-General’s observation, that I had sought to establish my own innocence by recrimination upon the Judge and Jury, I shall at present merely ask the learned gentleman whether he is of opinion that a like sentence for a like offence would have been passed on any nobleman or member of Parliament on his side of the House? Would a punishment which, according to the unfortunate admission of the Attorney-General, is calculated “to bow down the head with humiliation ever after,” together with fine and imprisonment, and the privation of every office and honour, have been thought little enough for a ministerial defendant on such a charge? And if the candour of the learned gentleman impels him to answer in the negative, is it 461not fair to inquire whether he thinks that such an one would even have been convicted on similar evidence? The Attorney-General observed, “that he was glad that the period had arrived when the trial could be read at length, and thus do away the effect of those imperfect statements which misled the public mind.” Reserving my remarks on the trial for a future opportunity, I shall at present just ask the Attorney-General how it comes that he, who is so anxious that the public mind should not be misled, should have made the unfounded assertion, that I not only pocketed a large sum of money by the fraud, but put off absolute ruin? Such an assertion is the more inexcusable in the Attorney-General, who had every facility of obtaining more correct information. His own broker could have told him that the Omnium which I possessed on the 19th of February, when the fraud must have been in agitation, could have been sold on that day at 27⅝. The average cost was 27⅞; so that the whole loss on the 139,000l. Omnium, if sold on that day, would not have amounted to above 400l. And when it is considered that the result of my previous speculations was a gain of 4,200l. received, and 830l. in the hands of my broker, how does the Attorney-General make it out that I had so embarrassed myself by such speculations, as to have no other than fraudulent means of escaping absolute ruin? Besides, I can assure the learned gentleman, if he is not already apprised of the fact, that if I had held the Omnium till the 1st, 3rd, or 4th of March, I should have sold it at a profit; and if I had held it till the settling-day, when I must of necessity have sold it, I should not have lost half the sum I had previously gained. But if upon the whole I had lost a few hundreds, or even thousands, how would the Attorney-General be justified in inferring my absolute ruin? It is well known that I had been more successful at sea than almost any other officer of my standing in the navy, and that I have constantly lived, not only within my income, but at less expense than almost any other person of my rank in society. On what grounds, therefore, is the Attorney-General warranted in representing me as a person in such desperate 462circumstances as to be obliged to have recourse to the lowest knavery in order to avert absolute ruin?

With respect to the other assertion, that I pocketed a large sum of money in consequence of the transactions of the 21st of February, did not the learned lawyer know that the Stock Exchange Committee had seized not only 1,700l. of my money, which was my actual profit from that day’s sale, but also a further sum of 770l. to answer their exaggerated calculation of that profit? and that the aforementioned sum of 830l. was also lost through the proceedings of that Committee? If the learned gentleman knew nothing of all this, I can only observe, that he ought to have informed himself on the subject before he made such statements in the House of Commons.

I have the honour to be,

Gentlemen, with great respect,

Your most obedient and faithful servant,

Cochrane.

APPENDIX XIV.

ADDRESSES FROM PAISLEY.

Canal Street, Paisley, Aug. 18th, 1814.

Sir,—By inserting the following addresses to Lord Cochrane and the electors of Westminster, you will oblige your readers in this place. Accustomed as we have been to the acts of the abettors of corruption, it is with a mixture of pity and contempt we have witnessed the eagerness with which they have endeavoured to heap every sort of contumely upon Lord Cochrane’s head. Thanks to his numerous friends, they have in this instance been wretchedly disappointed, and though he has been stripped of those honours which “the breath of kings can bestow,” he still retains what they have not the power to give or take away—the applause and admiration of his grateful countrymen.

Yours, with great respect,

John M’Naught.

W. Cobbett, Esq.

463At a meeting of a number of inhabitants of Paisley, in the Salutation Inn, upon August the 5th, 1814, for the purpose of celebrating the triumph of Lord Cochrane, the following addresses to the Electors of Westminster, and to Lord Cochrane, were agreed to:—

TO THE ELECTORS OF WESTMINSTER.

Gentlemen,—The times in which we live have been denominated a new era. They have produced so many extraordinary and marvellous events, that we cannot help thinking the designation just; but such has been their effect on the public mind, that we almost cease to wonder at anything, however extraordinary. Were it not for this apathy, this callous effect, scarcely anything in modern times would have made a deeper impression than the trial and condemnation of your representative, Lord Cochrane. In spite, however, of this disadvantage, we rejoice to find that this event has produced the very impression it ought to have made; it has produced an impression at once calculated to confound the malice of his enemies, to cheer the heart of every patriot, and to cherish that spirit of justice and independence which has long been dear to every Briton.

Allow us, therefore, to congratulate you and our country on the signal triumph which justice has obtained in your re-election of Lord Cochrane,—an election which could only proceed from a universal consciousness of the innocence of his Lordship, and which has placed that innocence on an immovable foundation. You have had many struggles with corruption, in all of which you have appeared as illustrious examples to mankind. In this last instance you have, if possible, surpassed yourselves; you have appeared as the focus of justice; it has been your prerogative to give the public feeling effect.

We would by no means be understood to insinuate anything to the prejudice of the jury which tried his Lordship. Trial by jury we hold so sacred and invaluable that we deprecate 464any reflection that would seem to throw a shade on so glorious an institution; but we may freely observe that, like every other human institution, it must be liable to abuse. We can easily imagine that a jury may be placed in such circumstances as to be rendered absolutely incapable of knowing the truth; a villanous arrangement of the evidence to be produced, a malicious and undue influence on the part of the judge, &c. may deceive a jury, and produce as much evil under the forms of law, as private vengeance could inflict. But while it is said that Lord Cochrane was tried and condemned by a special jury, it will also be said that he was tried by the electors of Westminster; he was tried by his country and acquitted.

We conclude by expressing our hope that whenever the hydra of corruption shall put forth her head, you will be found at your posts, ready to strike it off, or inflict a mortal wound; the times are still ominous, and the nation has its eyes fixed on you; we trust that you will not relax in your vigilance till malice and injustice hide their diminished heads, and innocence no longer find its only solace in heart corroding grief.

We are, gentlemen, &c.

John M’Naught, Chairman.

TO LORD COCHRANE.

My Lord,—There is such a dissonance between conscious innocence and imputed guilt, that an upright mind must necessarily be confounded on receiving an atrocious charge; and even when the falsehood of the charge is made apparent, the recollection of it is often so bitter, and its consequences so injurious, as almost to equal the pangs and the deserved punishment of real guilt. Your case, my Lord, is one of a singular complexion. Trained in the paths of honour, habituated to patriotic deeds and high exploits, and possessing in an eminent degree that noble disinterestedness, that open frankness peculiar to a naval life, to you the recent charge 465must have been extremely galling. Convinced of your innocence, permit us to approach your Lordship to express the interest we have taken in that extraordinary affair. When the charge was first preferred, we considered its improbability so great as to require the strongest evidence to make it good. We rejoice to find such evidence was wanting; nay, more, the lofty spirit of independence, the keen sense of honour, which you manifested throughout the whole affair; your astonishing address before the House of Commons, and subsequent illustrations, has destroyed every vestige of guilt, and placed your Lordship’s innocence in the most advantageous point of view. The universal sentiment in your favour, but especially the admirable conduct of the electors of Westminster, have raised you to a higher eminence than that from which you had fallen. You were, indeed, guilty of a crime,—a crime unpardonable in the eyes of corruption; you had dictated energy and efficiency to warlike measures; you sought the glory and happiness of your country, you sought for justice to your associates in war; was it then to be wondered at that malice should make you a favourite mark? No, my Lord; but thanks to this enlightened age, her shafts have been diverted in their course, and by their obliquity have centred in herself.

My Lord, allow us to conclude by expressing our confidence that the circumstances which have called forth this address will, if possible, strengthen your habits, and elevate your patriotic views, that when the time arrives for resuming public functions, you will be found the same intrepid, fearless champion of public and private right you have ever been.

Accept, my Lord, the assurance of our regard,

John M’Naught, Chairman.

466

APPENDIX XV.

ADDRESS FROM CULROSS.

Address presented to Lord Cochrane by the inhabitants of Culross.

We, the inhabitants of the royal burgh of Culross and neighbourhood, beg leave to offer your Lordship our heartfelt congratulations on being re-elected a member to serve in the House of Commons for one of the first cities in the kingdom; which event may be considered as the verdict of the last tribunal to whom you had appealed from the charges lately preferred against you. While the firmness with which you met those charges has called forth our highest admiration, we rejoice that they have now been so clearly proved to be unfounded, and that the cloud which threatened your destruction has been dispelled. In the joy everywhere diffused on this occasion, none can more cordially participate than the inhabitants of Culross; and we beg to assure your Lordship of their unabated attachment to, and respect for, the family of Dundonald.

Calling to mind the many heroic actions your Lordship has performed in your country’s cause, we look forward with confidence to a renewal of your ardent and gallant exertions for her advantage, notwithstanding the persecutions you are now suffering. And we sincerely hope that in defiance of party and faction, you shall again shine forth an ornament to your profession, an honour to your country, and the boast of this place, the ancient residence of your noble family.

We beg also to express our wish that your Lordship may speedily forget those sufferings an honourable mind must sustain whilst struggling against gross and unfounded accusations.

Signed in the presence and by the appointment of the meeting,

W. Melville, B.

John Caw, Secretary.

467

APPENDIX XVI.

LORD COCHRANE’S ANSWER TO ADDRESS FROM CULROSS.

King’s Bench, Aug. 18th, 1814.

Sir,—I take the earliest opportunity which the pressure of my affairs afforded me of conveying to my much-respected friends of Culross my heartfelt thanks for the interest they take in my character and welfare, and for the truly gratifying manner in which they have demonstrated their feelings, which are at once an honour to themselves and to me. You may, with great truth, assure our respectable townsmen that their unfeigned congratulations on my re-election add greatly to the satisfaction which I derive from that triumphant event; and that whatever may be the value of my actions, the motives in which they originate ever have been, and ever shall be, such as may claim the reward of their good opinion. I send you a newspaper containing the letter of De Berenger, by which you will perceive that my enemies have now an agent even within the confines of my prison. But I shall eventually triumph over all their machinations.

APPENDIX XVII.

ADDRESS OF THE INHABITANTS OF KIRKALDY TO THE ELECTORS OF WESTMINSTER.

Kirkaldy, Sept. 8th, 1814.

In consequence of previous intimation, a considerable number of the well-disposed and respectable inhabitants of Kirkaldy assembled at the Wellington Inn here, for the purpose of forming a congratulatory address to the honourable, free and independent electors of Westminster, on their re-election of the Right Honourable Lord Cochrane; when the 468following was publicly read and approved of; ordered to be signed by the chairman in the name of the meeting, and transmitted by the secretary to the Honourable Sir Francis Burdett, Baronet.

WILLIAM DAVIDSON in the Chair.

Gentlemen,—In imitation of the very respectable inhabitants of Paisley, we now presume to step forward to congratulate you on the laudable and praiseworthy step you have lately taken in re-electing the Right Honourable Lord Cochrane as one of your members for Westminster, whom the base time-servers of the day had, through wicked and deceitful means, unwarrantably deprived of his seat in Parliament. Not satisfied with this, his Lordship’s enemies pushed matters so far as to obtain a sentence of pillory, fine, and imprisonment, as if he had been a common felon; nay, more,—deprive him of those laurels he had so magnanimously won, and so justly merited at the hand of his country. His Lordship’s firmness and praiseworthy resignation under these uncommon sufferings we cannot too much admire and respect; and we fondly hope that, notwithstanding all these afflictions, his innocence will soon be confirmed by the exposure of those base intriguers and their intrigues, to the utter confusion of all time-serving placemen and their confederate hirelings. We rejoice that his Lordship possesses laurels more noble and lasting, which it is not in the power of princes nor their advisers to bestow or take away. We also trust that when his Lordship shall assume his honourable seat he will be more emboldened than heretofore, in conjunction with your other Honourable Member Sir Francis Burdett, in opposing corruption and its abettors, till the nation, roused from its lethargy, shall unite in behalf of all those who have been unjustly wronged; and thus will our little happy island outvie and triumph over all her enemies, both at home and abroad.

Gentlemen, we hope and flatter ourselves that you will have no cause to lament the re-election of your Right Honourable Member; we have no doubt his Lordship will be proud 469of the honour you have done him, as it cannot but attach him more closely to you and to the interests of the nation. We know that many thousands in Great Britain rejoice at the step you have taken, and the victory obtained by his Lordship, who nevertheless are afraid to show themselves lest, like some of old, they are put out of the Synagogue. We still hope, however, that the stigma cast on his Lordship’s friends, instead of intimidating them will rather embolden them to come forward and publicly declare the sense they have of his Lordship’sLordship’s innocence. That the honourable and praiseworthy electors of Westminster may prosper and succeed in all their laudable undertakings, and long enjoy the distinguished services of their able and truly honourable representatives; and when they shall have done their duty in their day and generation, that others in succession may fill their place who shall equal them in abilities and fortitude, is the ardent wish of this meeting.

Signed by appointment,

William Davidson, Chairman.

APPENDIX XVIII.

[The Times, July 13th, 1814.]

Sir,—A constant reader of your journal takes the liberty of inquiring whether any measures have been adopted on the Stock Exchange to put a stop to that illicit practice of time-bargaining, which could alone present a sufficient temptation to the authors of the late imposition, and will, if not abolished, continue to hold out similar inducements to the commission of similar frauds. To punish the invention of false news, with the particular view to affect the funds, and yet to suffer such practices in the funds as are both of themselves 470illegal, and also give occasion to the invention of the falsehoods, must appear to every one to be highly preposterous; in fact, the invention of false news and time-bargaining, must be considered but as different parts of the same act; they sprung up together—have grown and thriven together—and, whatever some may suppose, are of no very recent birth.

Lord Cochrane has, in truth, been found guilty of that which has been, in a less degree perhaps, practised without disgrace almost every week in the year upon ’Change, namely, a conspiracy to affect the price of Stock, by the invention and circulation of false news; and if it was necessary for the noble conspirator and his friends to put in motion a greater apparatus than usual for the execution of their plans, they have only thereby facilitated the means of detection, and proved their want of dexterity in such enterprises, while the hackneyed jobbers, managing their repeated impositions with less ostentation, are, in length of time, enabled to effect much greater mischief, as the mildew does more harm to the hopes of an honest husbandman than a thunderstorm.

Of the sentence passed upon Lord Cochrane, I shall say little; but as the most offensive part of it is matter of feeling and of character connected with feeling, I think that the characters and feelings of those at whose expense the imposition was chiefly successful, should have been likewise taken into consideration. If they are men immersed in habits of that nature of which Lord Cochrane’s offence only constituted a single act, I say that they had not a right to require, or to be gratified by, so severe a sentence as if they had come into court wholly unconnected with such proceedings in their own persons.persons.

What I have to demand, therefore, is, whether the gentlemen of the Stock Exchange, with this notable example of punishment before their eyes, have any idea of adopting some new system,—of forming some new resolution against those usages which have hitherto prevailed among them, but have never till now been visited by so tremendous a sentence? If they have not, I think it a pity that the learned judge who 471passed the late sentence did not endeavour to awaken their caution by some warning of the danger of persevering in those courses which had led in the passing instance to so calamitous a result; in short, an officer in the public service has fallen by a conviction for conspiring with others to raise the funds; the public has therefore a right to expect from all those connected with the sale of national property some general expression of their detestation of that offence of which Lord Cochrane has been convicted. Have they, or the major part of them, seemed by their general practice to consider it to be a crime till they came to suffer by it themselves, from any alien to their profession? Then they raised clamours about it, no doubt. I ask farther whether the Committee who advertised for evidence against Lord Cochrane mean to stop at the exposure of this single offence? or whether they are resolved, as in justice they ought to be, to hunt out and eject from the Stock Exchange all time-bargainers, hoaxers, bangers, and other practisers of fraud, for the raising or lowering of the funds? Or, if these are too powerful to be attacked, whether they mean at least simply to date a new era from Lord Cochrane’s conviction, to proclaim an amnesty of the past, and to give notice that in future hoaxing, banging, and everything that leads to the illegal practice of time-bargaining, as well as time-bargaining itself, shall be no longer practised among them with impunity? I call upon these gentlemen of the Committee particularly to explain to the nation what, in their opinion, ought to be the future regulations of stock-jobbing from this time, when a public example is to be made of one, who, to say the worst of him, has only carried the old practice to the utmost extent of its limits. I call, Sir, upon the members of the Stock Exchange, universally, for an answer to these queries, founded upon facts of which none of them can deny the existence; and I further denounce prospectively against them, that, if they will make no rules for themselves, Parliament will interfere, and either make some for them, or will at least vivify the old ones by such means of discovery as 472themselves have used, when they have been the dupes. In expectation of a reply,

I remain. Sir, &c.

Byrsa.

To the Editor of The Times.

APPENDIX XIX.

[The Champion, Sunday, July 3rd, 1814.]

THE PRETENSIONS OF THE LAWYERS, AND THE

SENTENCE ON LORD COCHRANE.

After referring to the pretensionpretension of lawyers to being held infallible, the article continues: “It has, we believe, been urged by the lawyers that, as the verdict of a jury is to be considered the voice of the people, the latter can have no right to rejudge their own decisions, but the idleness of the plea is evident. It most frequently happens that the verdict of the jury is but a small part of the legal proceedings in any particular case. A jury may be so trammelled by technicalities, imposed upon them in peremptory language; they may be so overpowered by a violent charge, or so confused by a subtle one, that their decision cannot, in fairness, be regarded but as the result of an overwhelming influence, leaving them, at least as they fancy, without an alternative; so that, after all, what have we but an emanation from an official quarter—tinctured with the interests, the prejudices, the passions, and the corruptions of a ministerial officer—in the natural existence of which the framers of our constitution believed, and the effects of which they desired to check by the healthy and unperverted sense of men who, being taken from common conditions, were likely to be animated solely by feelings for the common advantage. But when the verdict of the jury—however it may be induced—is pronounced, can it be said that the most important part of the business is over? No, certainly not. The sentence is to come, which, in many of the most weighty cases, as affecting 473the welfare of society and the safety of persons, is left entirely to the discretion of the Judge, so that here there is unbounded room for the exercise of his disposition, whatever it may be. If he be an ill-tempered and vindictive savage, and be, from political or personal motives, irritated against the unfortunate individual who is at his disposal, he may sentence him to a punishment which, as applied to the offence, shall outrage public feeling by its cruelty, and public justice by a prostitution of its penalties to gratify private resentments. Has he ambitious views, which lead him to seek the favour of the court? He may, as the professed guardian of morals, do them the fatal injury, by apologising, in the language of authority, and with all the imposing adjuncts of a dignified and grave station, for those crimes, which, as practised by persons of the highest rank, have the most extensive influence in the way of example. These are mischiefs which, under the cover of legal proceedings, may be perpetrated on the country; and it is evident, from their very nature, that we can have no security against them but in the vigilance of the public’s observation of whatever passes in the courts of law, and their firmness in expressing their opinion on its propriety.

Secondly. Experience fully supports this reasoning. English history shows that the worst enormities of abused power have been committed through the medium of the Judges. To no other class of official persons is half the execration owing, that is justly due to the lawyers for their frequent perversions of both law and justice in a base subserviency to the temporary feelings and purposes of guilty rulers. And, be it remembered that the most abominable of their proceedings have had the sanction of a jury’s verdict, procured by such means as have already been suggested; either by direct intimidation, or by drawing close an artificial network of legal complications and restrictions, which leave to jurymen about as much freedom of finding as he has of motion who is placed with his face close to a wall, and told to jump backwards or forwards, which he pleases.

Thirdly. But perhaps the character and conduct of those 474who are at present Judges are calculated to inspire an unlimited confidence in them, however distrustful of the profession, and anxious as to its functions, we have reason to be. This is, in some respects, a delicate inquiry, and, indeed, an almost unnecessary one, for the vigilance of the people as to the discharge of public duties should never be permitted to slumber through reposing on personal qualities. It is, then, only the arrogant and dictatorial tone of pretension, held by the satellites of Westminster Hall, that induces us to bestow a line on those of any one of our present administrators of the laws. We are told, in the most fulsome terms, that they are incorruptible,—that it is the boast of British justice to be clean-handed, &c. &c. This boast, as rested on a contempt of actual bribery, need be no singular one in these days. Who now takes bribes from individuals? No one, we venture to affirm, above the station of a Custom House officer. Perhaps in no department of the public service could a pecuniary consideration for infidelity be more conveniently given and received than in the military: a military man, of inferior rank, and slender hopes, has often an opportunity of giving the most decided advantage to the enemy, by acting traitorously, and the reward would never be wanting; yet who ever hears of such an act of baseness? When was there ever an instance of it in the army? Why then should a Lord Chief Justice, with an income of twenty thousand pounds a year, be highly complimented on a virtuous self-denial, which he only shares with the subaltern who starves on four and sixpence a day? His Lordship’s claims to peculiar confidence and honour must be of a rare kind to be valid. He must represent to us in his behaviour the exalted attribute of justice—simple, impartial, purified from passion, partaking of the nature of a heavenly presidency, rather than of power vested in a frail and feverish being, liable to be misled by his interests and habits, and every now and then to be carried away to the strangest lengths by a storm of anger. If Lord Ellenborough aspires to deserve this, the best praise that can be bestowed on one in his exalted station, his ambition is of the proper 475kind; but without meaning to convey any imputation against his integrity, we must even take the liberty of telling him plainly what the public think—that as yet he has by no means entitled himself to it. His boisterous vulgarisms in the House of Lords; his impatient fretfulness with counsel, particularly shown in cases where defendants may be supposed obnoxious to the palace, or to himself personally; the extraordinary views he takes of moral questions, so favourable to certain princely profligacies; and the unqualified terms of his charges in those trials that are calculated to rouse political feelings and partialities, are circumstances that have made a strong impression on the public mind. People, therefore, without indecently denying his honesty, are much inclined to doubt his discretion; and it must be admitted, that his Lordship’s temper is not precisely of that poised and regulated kind which would be the best plea for an exemption in his favour from that popular superintendence and judgment of his conduct, the exercise of which he finds so irksome, and which his friends represent as so indecorous.

Having thus vindicated the right of the people to express their sentiments freely on the conduct of the Judges, as on that of any other public men, we shall shortly exercise it by joining in the general disapprobation which the sentence recently pronounced against Lord Cochrane has excited. We never remember any sentiment to prevail more universally than this now does: the firmest believers in his Lordship’s guilt are loud in their reprobation of that part of his punishment which includes the exposure of the person of a naval officer, whose gallantry in the service of his country has been of the most devoted kind, on a stage of infamy which is trodden by the miscreant whose crime is not to be named. The public feeling has received a shock by this unexpected award, from which it will not soon recover; and surely it must be censured as highly indiscreet, to have turned the horror that ought to have been engrossed by the crime, entirely against the punishment with which it has been visited.

476It is not our intention to enter at all on the question of Lord Cochrane’s guilt or innocence; it would be very wrong in every point of view to do this at present. His Lordship has signified his intention of defending himself before the House of Commons, and of explaining what he affirms are the misconceptions on which the verdict of the jury was founded. The public will listen attentively to his second appeal; but, in the meantime, we shall confine ourselves strictly to those circumstances which are sufficient to justify the general condemnation of the sentence passed on his Lordship, although the decision of the jury be confirmed.

In the first place, admitting that the evidence may have been such as to compel a conviction, yet there are evident features of extreme hardship in Lord Cochrane’s situation when put on his trial, and when brought up for judgment, which enlist sympathy in his behalf, and make it possible that matters of alleviation, affecting his case only, may have been concealed by the harsh formalities of the practice of the Court. The law concerning conspiracy is enough to make every individual tremble for his own safety. Through mistake or malice, an innocent man may be included in one indictment with several guilty ones—he is compelled to take his trial with them; the testimony that proves their crime raises a prejudice against him; it is almost conviction to him to have his name called over with theirs; the chain of evidence becomes complicated, and where are jurymen to be found sufficiently clear-headed to mark exactly the connection between the facts sworn to and each of a dozen accused persons? If there is a hostile disposition towards the innocent individual existing in the breast of any in court, who may have an opportunity of influencing the jury, how shall he escape being involved in the deserved fate of those with whom he has been confounded? If, after his conviction, he prepares himself with evidence suited to remove the misconceptions by which his guilt has been presumed, he is granted or denied the opportunity of bringing it forward, according to the conduct of others, over whom he has no 477control, and who, in consequence of his innocence, and their guilt, have an interest directly the reverse of his. Should they abscond he is denied a new trial, although he presents himself fearlessly to meet its result. These are rules which Sir W. Garrow, the Attorney-General, calls the perfection of wisdom; to common understandings they seem the perfection of hardship. But what legal absurdity or cruelty, that has given way to the growing intelligence of society, has not been so eulogised and pertinaciously defended by the lawyers of the day!

Lord Cochrane, it is clear, has been thus placed in a situation extremely disadvantageous to him as an accused person, and the public sentiment is roused in indignant alarm at the condemnation of an individual to the punishment of the pillory (a punishment more severe than that of death to one in his Lordship’s situation of life), who complains in touching terms of hardships, which, to common understandings, involve palpable injustice, and which are of a nature to render any innocent person unable to establish his innocence. It would have been but prudent in the judge to have avoided raising this popular feeling against the sentence of the Court, by keeping it more within the bounds of moderation. Its odious severity sets every one on scrutinising the soundness of the conviction, and the justice of the legal rules applied to his Lordship’s case.

The further regards that influence the public to this strong commiseration of Lord Cochrane, and disapprobation of his sentence, are the unsuitableness of the latter for infliction on one of his Lordship’s condition, and, we had almost said, its ingratitude, with reference to his very distinguished past services. It is very certain that justice may be as much violated by a disproportionate punishment, as by the offence against which it is awarded; and when we consider that Lord Cochrane is one of the most esteemed officers of the navy, that his courage is of the true Nelsonic kind, that he is a member of Parliament, and a man of rank, the disgrace of the pillory to him must be deemed a thousand times worse than the mere 478infliction of death, for with this latter his Lordship has been familiar. Now, without meaning to extenuate the crime of spreading false news to raise the public funds, we may say that the state of the general feeling and practice in the country does not at present warrant that a punishment worse than death shall be pronounced against him, who, after the long forbearance of justice, is first convicted of this offence. Statesmen of high name and station are shrewdly suspected to gamble in the funds, and this practice also is illegal;—since such loose and improper feelings as to what is honourable prevail, it would have been but fair, at the first interference of the arm of the law, to have permitted it to fall more lightly.

Lord Cochrane’s politics are of a kind to excite the displeasure of the Court against him; one of his relations has stirred in behalf of the Princess of Wales, and, we believe, he has himself made, or assisted, some little scrutiny into Lord Ellenborough’s perquisites of office. These are considerations by which the Lord Chief-Justice will indignantly disclaim being at all influenced; but we say that he ought to have been influenced by them, inasmuch as they rendered his situation towards the accused extremely delicate.

APPENDIX XX.

[The Champion, a London Weekly Journal, Saturday, July 9th, 1814.]

The Case of Lord Cochrane.

Lord Cochrane’s case is pregnant with the most weighty interests and most touching considerations. Every subject of this country who has access to a knowledge of the facts is bound, as a matter of positive duty, to investigate its merits, with a view to behaving afterwards, according to the means arising out of his condition, in the best way calculated to 479assist the vindication of what his conviction shall tell him to be justice, as it relates to the public and to the party. It contains the most forcible appeal to every one distinctly to bring his opinion to bear on it, that the irresistible strength of the popular sentiment may either furnish to an injured person his remedy, or solemnly confirm the disputed decision of the tribunal which has adjudged him guilty of a serious offence. On one side, the common feelings of humanity, as well as a regard for the national honour and the general welfare, as composed of the safety of individuals, are warmly excited, that an innocent man should not be suffered to perish, to sink down and be overwhelmed in the gulf of infamy and ruin, in the sight of us all standing around him, while he in vain cries to us for help, and extends his arms to us for protection. If Lord Cochrane shall be left by his countrymen to be sacrificed pursuant to his sentence, and if there shall nevertheless appear to be good grounds for disbelieving his guilt, we must blush for England; considering the advantages which its people possess, they would be more disgraced by the occurrence among them of a calamity of this kind, than the French were by the murder of the Calas family,—we had almost said than by the wholesale murders of the revolution, which were committed by a few wretches possessed of power, whose atrocities were stupidly submitted to by an ignorant and debased nation. The judges and others officially concerned in convicting and punishing Lord Cochrane, have not by any means their characters implicated in the correctness of these proceedings to the same degree that the national character is implicated in the conduct which its people shall now adopt between the parties. A Court, during the judicial process, which only lasts a few hours, may be misled by some great error; the administration of the law must be regulated by prescribed forms, and these, however generally useful, will often become hardships in their application to particular cases;—the accused party may not be prepared with all the evidence bearing on his cause, or may mar it by his injudicious conduct, or his employed advocate may take a wrong view 480of what is for the interest of his client. These possibilities should render us cautious in attributing an erroneous judgment and unmerited sentence to corrupt motives existing in the tribunal from whence they proceed; but they also abundantly prove how much depends on holding no official decision whatever exempt from scrutiny. We are astonished when we hear such a man as Mr. Wilberforce declare that it is improperly disgracing a court of law to submit the correctness of its proceedings to public investigation; that gentleman, for whom we have the greatest respect, is even averse to the interference of the House of Commons to discharge such a duty, although facts of acknowledged difficulty and of a nature to excite the keenest sympathy, thrust themselves on the most superficial observation, forcing doubt, and, therefore, demanding deliberation. This, if we understand him right, he does not deny, but in their very teeth would acquiesce silently and impassively in what has been done, lest, as he says, we should throw reproach on the administration of justice—“the purest among the pure,”—the “fairest among the fair,” and so forth. Does, then, Mr. Wilberforce forget, that not only is the House of Commons legally competent to judge of every act of authority up to the very highest, but that the real superiority of this country’s political condition, and the conscious feeling which we all have of the value of our constitution are to be traced to its exercise of this right. What should we have been if this doctrine as to the indelicacy of scrutinising the conduct of public functionaries had been always adopted? What enormities have been the consequence of its temporary prevalence? Then, again, how can it escape his acuteness that, as no human institution or person is infallible, none ought to claim or receive an exemption from a superintending cognisance? Farther, admitting, as he must when put to it, that the Courts may pronounce wrong judgments, will he affirm that they will be more disgraced by having the injurious effects of these prevented by timely interference, than by an acquiescence in that worst of all calamities and disgraces, the punishment of innocence? This is the point 481which is so unaccountably overlooked by those who take Mr. Wilberforce’s view of the question; they think, or at least by their arguments would seem to think, that the correction of an error is more disgraceful to the party who is wrong than its perpetration; they do not seem to understand that the most honourable thing that can be said of the institutions of any country, is that, as a whole, they render it impossible that there should be any wrong without a redress, an evil without a remedy,—and that each of these institutions derives a respectability and strength from this general eulogium, of a far more legitimate and lasting kind, than can result from an impunity which tends to foster its worst errors and assist its progress towards destruction.

We have said enough to show that, in our opinion, the House of Commons ought to have conducted for itself an inquiry into Lord Cochrane’s case; more particularly when facts were laid before it which raised grave doubts of his Lordship’s guilt in the minds of some of its most respectable and impartial members. It is the object of this article to impress, that it now devolves on the public, and more particularly on his Lordship’s constituents the electors of Westminster, to investigate the whole business for themselves, by means of the various documents and evidence which they can command. Our readers must not look for these in our weekly sheet; we cannot among our miscellany furnish them even with a correct outline of the proceedings of the Court, the debates in the House of Commons, his Lordship’s defence, and the affidavits supporting it. Most of these, however, are to be procured, and justice, manliness, and humanity require they should be attentively considered. We shall proceed to state and justify our own sentiments on this most interesting affair, as they have been influenced by the progressive information we have received. This will be expected of us; but, we repeat, in a case like this, each ought to investigate and judge for himself. As we have hitherto rested our remarks on the possibility of Lord Cochrane’s innocence, it is proper now to add that the voice of the public should now be raised in defence of their 482legal authorities, and in reprobation of an indecent obstinacy of denial, supported by falsehood wearing its most atrocious features, should inquiry convince them of Lord Cochrane’s guilt.

We are impelled to mention first that, whether properly or improperly, we previously cherished no particularly favourable opinion of Lord Cochrane as he was known to the public. He always seemed to us more likely to throw discredit on the cause of honest politics, by joining the word reform with hasty, intemperate, and undignified proceedings, than to accomplish any real good by his efforts, notwithstanding they were generally directed to the removal of what was wrong. Besides this, we thought we observed about him too little selection in his companionships, and too little of what is high-mindedly delicate in his conduct. We heard of the charge brought against him by the Stock-Exchange certainly with no disposition to turn from it as incredible; on the contrary, we leaned, with the majority, to a belief of his guilt, through the weight of the accusation, and a certain weakness, arising chiefly from incoherency, in his Lordship’s inconsiderately published defence. The trial came on, and, by the reports of it in the newspapers, our original belief was strengthened: we saw no reason to doubt the propriety of the conviction; we began, indeed, from what we heard and read, to fancy that Lord Cochrane’s guilt might be less heavy than that of the others who were included in the indictment; we suspected that he had not been made privy to the mysteries of the plot, although he might have culpably connived at what he knew to be going on, understanding that it would tend to his advantage, but not perfectly acquainted, nor seeking to be, with all the particulars.

With this impression on our mind, we at the same time felt that Lord Cochrane had been exposed to various hardships and disadvantages, in the course of the legal proceedings against him; and that these were sufficient to put even innocence in a very precarious situation on its trial; in short, to justify what an hon. member said in the House—that 483he had need to be not only fully, but fortunately guiltless, who should escape conviction under such circumstances. The being included in an indictment with a number of persons, several of whom he had never seen, by which the evidence and the jury’s attention were confused, and an odium was thrown on all the accused should the guilt of any be proved; the refusal of the judge to attend to the counsel, when they prayed that the trial might be adjourned before they commenced the defence, after a sitting of fifteen hours, and when the jury were incapable of giving close thought to the statement, the adjournment taking place immediately when the defence was concluded, by which the prosecutors had given to them a great advantage in framing the reply; the very fierce and unqualified terms of the judge’s charge to the jury, putting every fact in the strongest language against his Lordship, and laying little or no stress on the other side of the supposition;—all these things combined, constituted, as we thought, a case of hardship, of which the convicted party might reasonably complain.

The proceedings after the trial were more unequivocally severe. The rule of the court, under which Lord Cochrane was refused a new trial, because others over whom he had no control did not appear with him to seek it, was plainly inconsistent with justice as distinct from law—at least, as it operated in this instance; it therefore shocked the public sense, and raised a strong feeling in favour of the aggrieved party. It is pleasing to find Mr. Ponsonby, who is not only an eminent lawyer, but one by no means to be suspected of a disaffected turn, declare that this rule is as little founded in law as in justice or reason; that it has, moreover, no ancient custom to plead in its behalf, but is of very novel introduction. We have some ground, then, for hoping that this piece of “profound wisdom,” as Sir W. Garrow luminously termed it, which every one scouts as senseless and cruel, and which is besides an innovation, will shortly give place to a more liberal, and useful, and ancient form of practice.

The facts contained in Lord Cochrane’s defence, made 484personally in court when he was brought up to receive sentence, and which has since been published in its entire form, threw a new light on many important points of his case, and gave an explanation, reconciling with his innocence several matters which served before to prove his guilt. This is a document which our readers should not fail to peruse.

At last came the sentence, and, in common with all the world, we were astounded by it. It thunderstruck the prosecutors, who felt abashed and have petitioned against it; it amazed both sides of the House of Commons; it disgusted all persuasions of people—those who acquiesced in as well as those who dissented from the conviction. It seemed of most forgetful severity, when Lord Cochrane’s naval services were considered; of most injurious severity when his political conduct was looked at in connection with the happier fate of certain peculators and delinquents whose turpitude to the public had nothing to relieve its atrocity but their subserviency to the court. In short, the punishment awarded by the judge (we allude to the pillory) appears almost to everyone over-charged, as it relates to the crime, unsuitable as it relates to the person convicted, and unseemly as it relates to him who presided at the trial. It is but fair to notice one exception, by quoting from Sir Francis Burdett’s speech:—“The sentence he thought cruel, disgusting, and severe beyond all example. The noble Lord who was the object of it was the only person he had met with who was not of this opinion. His Lordship, when he (Sir F. Burdett) visited him in the King’s Bench Prison, said that he had not to complain of his sentence, but of his conviction. Were he guilty, the whole of his punishment, and more than the whole, was justly due to him.”

We come now to the proceedings in the House of Commons. His Lordship’s defence there ought certainly, in some way or other, to be got before the public: with his feelings highly strung and irritated, as it would seem, in an extraordinary degree, it contained passages reflecting on the conduct of Lord Ellenborough, which the newspaper reporters were told in plain terms they would publish at their peril. Lord Cochrane 485evidently delivered himself under the almost maddening consciousness of having been the victim of gross injustice; some of his accusations, pronounced with great bitterness, it may be found necessary to keep back; but the narrative and argumentative part of his statement should certainly be printed. It had a prodigious effect on those who heard him: several of the most impartial and steady Members declared that, in their view, it established that there had been on the trial a misdirection of the jury by the judge of a most material nature, and to the prejudice of his Lordship as one of the accused; they added, that on the facts which everyone thought told most against his Lordship, he had shed a totally new light, either by offering to rebut them with testimony that deserved attentive consideration, or by explaining circumstances which altered their import, or by showing with much simplicity and indication of general feeling how they had been misconceived, and to what unlucky accidents it was owing that they had operated to his prejudice. Persons whose respectability and judgment will not be impeached from either side of the House protested that under the weight of what they had heard they could not sleep on their pillows were they to vote for Lord Cochrane’s expulsion without further inquiry: many affirmed that the case had always appeared to them doubtful, and that now their doubts had become of the most serious kind. A gentleman who interrupted his Lordship in the course of his animadversions on the Chief-Justice, avowed that however injudicious and unfounded these circumstances were, he could not shut up his opinion from facts so strong as those contained in the defence, nor could he reconcile it to his conscience to add confirmation to a verdict of the soundness of which he saw reason to doubt, and bitterness to a fate which it was more than possible might be undeserved.

Yet the House voted the expulsion of Lord Cochrane, not however without a division. Forty-four were for further inquiry, and 140 for expulsion. On the face of this proceeding it appears that forty-four intelligent and honest men 486think that there is at least a strong call for further investigation, yet Lord Cochrane has been sentenced to the pillory! But if we read the speeches of the Members, we shall find it by no means follows that the 144 who decided for expulsion, are satisfied as to his Lordship’s guilt. Mr. Wilberforce, for instance, speaks of the case as very distressing, and as very painful to his feelings—but adds that he deemed it his duty to bow to the decision of the judge and jury. Now, this is not an exercise but a surrender of judgment; and, indeed, we may infer that Mr. WilberforceWilberforce attaches at least doubt to the case, for otherwise he would not regard it as distressing, but rather as one in which the offender had deprived himself of every claim to compassion, by shameless obstinacy and abandoned perjury. It is observable that the propriety of expulsion was almost invariably rested on the propriety of supporting the court of law, and on the many inconveniences which, as it was truly enough said, would attend a reinvestigation of the proceedings. The reader sees that these considerations have no connection with Lord Cochrane’s guilt or innocence; yet, judging from the temper and sentiment manifested by the House, we are inclined to believe that it was these which chiefly produced its decision, and that a very large proportion of the majority are far from satisfied in their minds that their late associate has been properly convicted.

For ourselves, we have no hesitation to say, after a most impartial study of the various documents, that our opinion is changed, and that from thinking the weight of evidence on the side of Lord Cochrane’s guilt we now think it on the side of his innocence. This, at least, is incontestible, that great difficulties were imposed upon him by legal forms; that the most important facts were misrepresented to his prejudice on his trial; and that if the charge of the judge was adopted by the jury as a clue to their decision, they have been misguided.

The best statement of Lord Cochrane’s defence that we have seen was in the Morning Herald; the reports in the Times and Chronicle gave no idea of it; but we suppose it 487will speedily be published in a more perfect form than any in which it has yet appeared. It makes perfectly clear that the Chief-Justice’s most important assertion to the jury, that Lord Cochrane received De Berenger “in the costume of his crime,” is utterly unsupported by any evidence given on the trial, and that it is in contradiction to several strong probabilities:—it directs attention to the singular fact that Lord Ellenborough, in some instances, quoted Lord Cochrane’s voluntary affidavit for proof against him, and in others denied it all authority and truth:—it does all but prove that De Berenger’s dress, when he came in the hackney-coach to Lord Cochrane’s house, was falsely described by the coachman, and it convicts this witness of other falsehoods, while it justifies a belief that he may have been actuated by a corrupt desire for the reward, by showing that he is a convicted ruffian of the vilest kind:—it satisfactorily accounts for the non-examination of Lord Cochrane’s servants by counsel on the trial, for whose examination his Lordship pressed by note when the proceedings were going on, who would have proved that De Berenger’s dress was not of a kind to excite suspicions in any breast:—it makes very manifest that Lord Cochrane has suffered by being joined with others whose guilt must be presumed; conscious of his own innocence, and therefore believing theirs, he left to them the trouble of arranging the defence to the indictment, and neither his wishes nor his interests seem to have been consulted:—it establishes that he had no connection with De Berenger’s defence, and gives reason to believe that he was but little acquainted with his person:—it tenders fresh testimony, on the oaths of five respectable witnesses, as to the manner in which Lord Cochrane’s bank-notes found their way into De Berenger’s hands:—in fine, it mentions a multiplicity of circumstances furnishing presumption of innocence, and makes it indubitable that the case might have had much assistance of which it has been from one cause or another deprived.

(Signed) “Ed.”

488I have only selected such opinions of the press as may serve to elucidate what has been advanced. Were I to collect public opinion as expressed at the time, such collection would far more than exceed this volume in bulk. If necessary for my fuller defence, it must yet be adduced, should my life be spared. That my days have been thus far prolonged, is, under Providence, to be attributed to the skill of my physician, Dr. Bence Jones, and to the unremitting care and attention of my constant medical attendant, Mr. Henry Lee, of Savile Row.

Dundonald.

END OF THE SECOND VOLUME.

LONDON

PRINTED BY SPOTTISWOODE AND CO.

NEW-STREET SQUARE.

Transcriber’s Note

In the Table of Contents, the Appendices were shown to begin on p. 410. The correct page number is p.401.

Several compound words appeared midline both with and without a hyphen (e.g. fire-ship/fireship). Where the hyphen appears at a line break, it is either removed or retained, depending on other instances of the word.

At 222.9 and on the following page, the printer failed to use single quotes to delimit embedded quotes of words and phrases: ‘army flotilla’, ‘army’, ‘march in ordinary time’.

Other errors deemed most likely to be the printer’s have been corrected, and are noted here. The references are to the page and line in the original.

9.8 and so fra[u]dulently from the original Inserted.

31.12 the deep water[”] See p. 32 line 4.

32.24 to nineteen feet[”] Added.

34.3 at 11 [a.m./a.m.] Replaced.

38.4 there at all[.] Added.

59.13 as I have already mentioned.” Added.

77.32 that point.[”] What he really said Added.

82.15 NO INTENTION OF ATTACKING[.] Added.

124.13 the production of “Minutes[”] Added.

150.30 “It may [h/b]e that Replaced.

220.9 were not listen[d]ed to Removed.

233.19 Lieut.-Col[.] Colquhoun. Added.

271.17 the family fort[n/u]ne. Inverted.

280.4 to lie on the table.[”] Added.

294.3 by long[c o/ co]nfinement Shifted.

303.15 Croker’s own words[ I,/, I] shall do Replaced.

326.6 I shall ever consider this inte[r]ference Inserted.

344.7 HOW GOT UP[.] Added.

370.23 the same mi[m/n]istry Replaced.

413.5 [I/L]’Océan, 120 guns Replaced.

419.35 [Caledonia’s/Caledonia’s] signal, Italicize.

426.15 he had [“]in contemplation” Probable.

469.10 they have of his Lordship’[s] innocence Italicize.

470.30 in their own persons[.] Added.

472.11 the pretens[i]on of lawyers Inserted.

486.10 Mr. Wilbe[r]force attaches Inserted.