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

London, May 10th, 1809.

Sir,—I have received your letter of the 2nd instant, acknowledging the receipt of the list, containing the names of the officers and men employed in the fireships and explosion vessels on the night of the 11th ult., with my observations on the result of my inquiry respecting their conduct on that occasion; and signifying that you are commanded by their Lordships to acquaint me, that, in order to have before them full and complete information of the proceedings of the several ships employed by me on the various branches of the very important operations carried on against the enemy’s fleet in Aix Road, it is their Lordships’ direction that I should call upon Rear-Admiral Stopford, Captain Bligh, Captain Lord Cochrane, and any other officer I may have entrusted with any part of that service, to report to me their proceedings, together with such observations and remarks as they may have made whilst they were executing my orders against the enemy; and that I should transmit the same to 408their Lordships, with any observations I may think proper to make thereon.

You will be pleased to acquaint their Lordships that I have written to those officers to make reports to me accordingly, and shall lose no time in transmitting them to you as soon as they are obtained, but some time must elapse before they can reach me.

From communications I have since had with their Lordships, I am led to understand that a more full and detailed account than I have transmitted of the proceedings of the fleet under my command, during the whole of its operations in Basque Roads, would be desirable. I shall, therefore, in making such a statement, endeavour to omit no incident that may be in any degree connected with those operations, or serve to elucidate the various movements and proceedings of the fleet, persuaded that doing so cannot fail to promote the satisfaction which, in common with the officers and men under my command, I feel upon that occasion, and on the success which has resulted from it.

Their Lordships are aware that soon after I had taken the anchorage of Basque Roads, I stated to them the strong position of the enemy’s fleet in Aix Roads; that their ships were moored in two compact lines, and the most distant ship of each line within point blank range of the batteries of Isle d’Aix, explaining, at the same time, that they were under the necessity of mooring in such close order, not for the purpose of opposing a more formidable front, but to avoid the shoals close around the anchorage; and their Lordships will also remember that I then pointed out the impracticability of destroying them by an attack with the ships of the line in the position they occupied; but that I conceived them to be assailable by fireships, having previously suggested to Lord Mulgrave the expediency of sending out twenty or thirty vessels for that purpose.

This suggestion was anticipated by their Lordships, and they were pleased to order twelve sail of fireships to join me, and to direct me to fit out eight others on the spot. Upon the arrival of Captain Lord Cochrane, whom their Lordships 409had ordered me to employ in conducting the execution of the service to be performed by the fireships, I was induced, at his suggestion, to add the Mediator to the number.

These preparations were completed on the 11th ultimo at night, and having previously called on board the Caledonia the commanders and lieutenants who had volunteered their services, and who had been appointed by me to command fire vessels, I furnished them with full instructions for their proceedings in the attack, according to Lord Cochrane’s plan, and arranged the disposition of the frigates and small vessels to co-operate in the following manner.

The Unicorn, Aigle, and Pallas, I directed to take a station near the Boyart Shoal, for the purpose of receiving the crews of the fireships on their return from the enterprise, to support the boats of the fleet which were to accompany the fireships, and to give assistance to the Impérieuse, which ship was still further advanced. The Whiting schooner, King George, and Nimrod cutters, were fitted for throwing rockets, and directed to take a station near the same shoal for that purpose.

The Indefatigable, Foxhound, and Etna bomb, were to take a station as near the fort on the Isle of Aix as possible; the two former to protect the bomb vessel, whilst she threw shells into the fort.

The Emerald, Dotterel, and Beagle sloops, and Growler, Conflict, and Insolent gun-brigs, were stationed to make a diversion at the east end of the Isle of Aix.

The Redpole and Lyra I directed to be anchored by the Master of the Fleet (one near the Isle of Aix, and the other near the Boyart), with lights hoisted, to guide the fireships in their course to the attack; and the boats of the fleet were ordered to assemble alongside the Cæsar, to proceed to assist the fireships, under the superintendence of Rear-Admiral Stopford.

With these preconcerted movements the fleet was at this time unmoored, in readiness to render any service that might be practicable; but being anchored in a strong tide-way, with the wind fresh from the N.W. upon the weather tide making, it was again moored, to prevent the ships falling on board each other.

410At about half past eight P.M. the explosion vessels and fireships proceeded to the attack; at half past nine the first explosion vessel blew up, and at ten most of the fireships were observed to be on fire; the enemy’s forts and ships firing upon them. Many of the fireships were seen to drive through their fleet, and beyond the Isle of Aix.

Shortly after daylight, Lord Cochrane, who, in the Impérieuse lay about three miles from the enemy, made the signal to me by telegraph, that seven of the enemy’s ships were on shore, and that half the fleet could destroy them. It was visible from the Caledonia what ships were aground, and that two or three had made their escape up the Charente. I immediately ordered the fleet to be unmoored, and at half past nine weighed and run up nearer to the Isle of Aix, with the view, when the time of tide should render it advisable, that some of the line-of-battle ships might proceed to attack the enemy’s ships on shore; but the wind blowing fresh from the N.N.W. with a flood tide, I judged it unadvisable to risk any of them at that time in so perilous a situation. The fleet was therefore anchored. I made the signal for each ship to prepare, with spare or sheet cables out of the stern ports, and springs on them, to be in readiness for any of them to go in that I might judge necessary; in the meanwhile I ordered three additional fireships to be prepared.

Observing the Impérieuse to advance, and the time of flood nearly done running, the Indefatigable, Unicorn, Aigle, Emerald, Pallas, Beagle, Etna, and gun-brigs, were ordered, by signal, into the attack; at 2·20 P.M. the former opened her fire upon the enemy’s ships aground, and the others as soon after as they arrived up. I then ordered in the Valiant and Revenge to support them, and they soon joined in the action.

The enemy’s ship Calcutta struck her colours at 4·10 P.M. and the Ville de Varsovie, and Aquilon, in about an hour afterwards; all three were taken possession of by the boats of the advanced squadron, and set on fire as soon as the prisoners were removed; a short time after the Tonnerre was set on fire by the enemy.

411Perceiving, towards the close of day, that there were some of the enemy’s grounded ships lying further up towards the Charente, which appeared to be exposed to further attack, I sent in the three additional fireships, and all the boats of the fleet, with Mr. Congreve’s rockets, accompanied by the Cæsar and Theseus, under the direction of Rear-Admiral Stopford, with discretional orders for his acting as he should think fit, and according as circumstances should render it expedient.

On the following day (the 13th) the Rear-Admiral perceiving that nothing further could be effected by the line-of-battle ships, which had grounded, as had also some of the frigates, and how imminent the danger was in which they lay, and being satisfied that the remaining part of the service could be performed only by frigates and smaller vessels, he most wisely took advantage of a providential shift of wind, and returned with the line-of-battle ships to Basque Road. Captain Bligh, on his return, reported to me that it was found impracticable to destroy the enemy’s three-decked ship, and others, which were lying at the entrance of the Charente, as the former (which was the outer one) was protected by three lines of boats placed in advance from her.

During the remainder of the 13th the Etna was employed in throwing shells, the Whiting schooner in firing rockets, and the other small vessels in firing upon the enemy’s ships on shore when the tide permitted.

On the 14th, at daylight, I observed three or four of the enemy’s ships still apparently aground at the mouth of the river. I ordered Captain Wolfe, of the Aigle, to relieve Lord Cochrane in the Impérieuse, in command of the small vessels advanced, and to use his utmost endeavours to destroy any of the enemy’s ships which were assailable. At 2·50 the Etna bomb, and small vessels in shore, began their fire upon the enemy’s ships at the entrance of the Charente, and continued to do so during the remainder of the day.

On the 15th, in the morning (the day on which I despatched Sir H. Neale to their Lordships, in the Impérieuse), three of the enemy’s line-of-battle ships were observed to be 412still aground under Fouras, and one of them in a dangerous situation; one of their frigates (L’Indienne), also on shore, had fallen over, and the enemy were dismantling her.

It blew very strong from the westward the whole of the 15th and 16th, so that no attempt could be made to annoy and harass the enemy; on the latter day their frigate, which was on shore, was discovered to be on fire, and blew up soon after.

All the remainder of the enemy’s ships got up the river by the 17th, except one (a two-decker), which remained aground under the town of Fouras; in the afternoon of this day it was observed that another of the enemy’s frigates had got on shore up the river and was wrecked, which was afterwards confirmed by the master of a neutral vessel from Rochelle.

On the 19th it blew too violent for any of the small vessels to act against the enemy; but on the 20th, the Thunder bomb having arrived, and the weather having become more moderate, I sent her to assist the Etna in bombarding the enemy’s ship, on shore near Fouras. The Etna had split her 13-inch mortar on the 15th, consequently had only her 10-inch effective.

State of the Force of the Enemy, transmitted in Lord Gambier’s second Letter to the Hon. W.W. Pole, of the 26th March 1809.

Statement of the enemy’s force moored at Isle d’Aix, anchorage in two lines very near to each other, in a direction due south from the fort on Isle d’Aix; the ships in each line not further apart than their own length, and the most distant ships of the two lines within point blank shot of the works on that island.

One three-decker Flag at the fore.

Ten two-deckers (one a fifty-gun ship, late Calcutta), } One flag at the mizen, and one broad pendant.

(Signed) Gambier.

Caledonia, in Basque Roads, March 26th, 1809.

413Statement of the names of the enemy’s ships in Aix Roads, previous to the attack on the 11th April 1809; and of the killed and wounded in the action of the 12th of April 1809.

L’OcéanL’Océan, 120 guns, Vice-Admiral Allemande, Capt. Reland. Repaired in 1806; on shore under Fouras.

Foudroyant, 80, Rear-Admiral Gourdon, Captain Henri. Five years old; on shore under Fouras.

Cassard, 74, Capt. Faure, Commodore. Three years old; on shore under Fouras.

Tourville, 74, Capt. La Caille. Old; on shore in the river.

Regulus, 74, Capt. Lucas. Five years old; on shore under Madame.

Patriote, 74, Capt. Mahee. Repaired in 1803.

Jemappe, 74, Capt. Fauvan. On shore under Madame.

Tonnerre, 74, Capt. Clément de la Roncière. Nine months old; never at sea.

Aquilon, 74, Capt. Maignon. Old.

Ville de Varsovie, 80, Capt. Cuvillier. New; never at sea.

Calcutta, 56, Capt. La Fone. Loaded with flour and military stores.

Frigates.

Indienne, Capt. Proteau. On shore near Isle d’Enette, on her beam-ends.

Elbe, Capt. Perrengier.

Pallas, Capt. Le Bigot.

Hortense, Capt. Allgand.

N.B. One of the three last frigates on shore under Isle Madame.

Return of the killed, wounded, and missing:—Two officers, eight men, killed; nine officers, 28 wounded; one man missing. Total,—48.

Gambier.

414Return of the names of Officers killed, wounded and missing.

Caledonia, Mr. Fairfax, Master of the fleet; contusion of the hip.

Cæsar, W. Flintoft, Acting-Lieut.; killed.

Theseus, R.F. Jewers, Master’s-Mate; severely wounded in the head and hands by powder in the fireship.

Impérieuse, Mr. Gilbert, Surgeon’s Assistant, wounded; Mr. Marsden, Purser; ditto.

Revenge, J. Garland, Lieut.; severe contusion of the shoulder and side.

Mediator, J. Segess, Gunner; killed.

J. Wooldridge, Capt.; very much burnt.

N.B. Clements, Lieut.; slightly burnt.

J. Pearl, Lieut.; ditto.

N.B. The last three blown out of the Mediator after she was set on fire.

Gibraltar, J. Conyers, Master’s Mate; very badly scorched in the face and hands.

Gambier.

Received since the above was written.

Etna, R.W. Charston, Midshipman, slightly wounded.

APPENDIX III.

STATEMENT IN THE ADMIRALTY COURT RESPECTING THE AFFAIR OF AIX ROADS, SHOWING WHY PART OF THE FLEET ONLY WERE ENTITLED TO HEAD MONEY.

Ville de Varsovie.

On Friday, the 15th day of December 1815.

On which day Pott appeared for the Honourable Thomas Lord Cochrane, late Commander of His Majesty’s ship Impérieuse, 415his officers and crew, in obedience to the monition issued in this cause from this Right Honourable Court, citing the said Lord Cochrane to appear and show cause why distribution of the head or bounty money, for the destruction of the said ship and other French ships of war, should not be made to and amongst the admirals, captains, officers, and seamen of all the ships composing the fleet under the command of the Right Honourable Admiral Lord Gambier, at the time of the attack and destruction of the said ships, and on behalf of his said parties objected to such distribution, and in support of such objection alleged that the said ship, Ville de Varsovie, was a French ship of war—and together with Le Tonnerre, L’Aquilon, Calcutta, and L’Indienne, and several other French ships of war, were in the month of April, 1809, at anchor in Aix Roads, on the coast of France, and an expedition was formed under the orders of the Right Honourable Admiral Lord Gambier for the purpose of endeavouring to capture or destroy the said French ships of war. That the said expedition consisted of His Majesty’s line-of-battle ships, Caledonia, Valiant, Revenge, Cæsar, Theseus, Illustrious, Gibraltar, Donegal, Hero, Bellona, and Resolution; His Majesty’s frigates, Impérieuse, Indefatigable, L’Aigle, Emerald, Pallas, and Unicorn; His Majesty’s sloops, Lyra, Dotterell, Foxhound, Redpole, and Beagle; and His Majesty’s gun-brigs, Conflict, Insolent, Fervent, and Growler; and several bomb vessels, fireships, explosion vessels, schooners, and cutters, and on the 11th day of the said month of April, the preparations for that purpose being completed, and the whole of the said fleet at anchor in Basque Roads, on the outside of Aix Roads, and distant about six miles from the said French ships of war, the explosion and firevessels proceeded into Aix Roads under the immediate command of the said Lord Cochrane, who was on board one of the same, and he commenced the attack on the enemy while several of the frigates and sloops, gun-brigs and smaller vessels also advanced on various points to support them; that in consequence of such attack seven of the enemy’s ships were driven on shore, and 416on the following day, April 12th, His Majesty’s ship Impérieuse, commanded by the said Lord Cochrane, together with His Majesty’s ships Valiant, Revenge, and several of the frigates and smaller vessels, forming the inshore or advanced squadron, proceeded in and engaged the said enemy’s ships so driven on shore; that about three o’clock the said day the Impérieuse attacked the Calcutta, one of the said ships, mounting 56 guns, and after an obstinate resistance she struck her colours to the Impérieuse and was immediately taken possession of and burnt; that the Ville de Varsovie, mounting 80 guns, and Aquilon and Tonnerre, mounting 74 guns each, three more of the enemy’s said ships were also attacked by the said inshore or advanced squadron, and after sustaining a heavy cannonade the two former about four o’clock struck their colours, were taken possession of by the boats of the said inshore squadron, and burnt, and the Tonnerre was soon afterwards burnt by the enemy to prevent her from being taken by the British ships.

That in the evening of the said day His Majesty’s ships Cæsar and Theseus, together with some additional fireships were sent into Aix Roads from the fleet to make a further attack upon the enemy; but the Cæsar having grounded before she could get within gun shot of the enemy’s ships, the said two ships returned before daylight next morning and rejoined the fleet without being able to effect anything against the enemy; and on a subsequent day L’Indienne, another of the said French ships, mounting 36 guns, which had been driven on shore by the first attack, was also burnt by the enemy. And the said Pott further alleged, that during the aforesaid attack and destruction of the said enemy’s ships, Calcutta, Ville de Varsovie, Aquilon, and Tonnerre; His Majesty’s ship, Caledonia, bearing the flag of the Right Honourable Admiral Lord Gambier, together with the Cæsar, Theseus, Illustrious, Gibraltar, Donegal, Hero, Bellona, and Resolution, remained at anchor in Basque Roads above three miles distant from the nearest of the enemy’s ships, and were not within reach of shot and never were actually engaged 417with any of the said ships; and by reason of the premises the said several line-of-battle ships are not entitled by law to share in the head or bounty money payable for the attack and destruction of the said several French ships of war, and in verification of what he so alleged the said Pott craved leave to refer to extracts from the log books of the said line-of-battle ships to be by him exhibited, and to the despatch sent by the said Lord Gambier to the Lords Commissioners of the Admiralty, bearing date 14th April 1809.

Wherefore he prayed the Right Honourable the Judge to reject the claim of the said ships, Caledonia, Cæsar, Theseus, Illustrious, Gibraltar, Donegal, Hero, Bellona, and Resolution, and to decree the several ships of war belonging to the said fleet who were actually engaged with the enemy to be the only ships legally entitled to the said head or bounty money, and to direct the distribution to be made to them and to the said ship Impérieuse accordingly.

APPENDIX IV

CONFIRMATION OF THE PRECEDING.

It appears by the log-books of the ships and vessels under the command of Admiral Lord Gambier, in Basque Roads, on the 11th and 12th of April, 1809, and also by his Lordship’s official letter to the Admiralty, and by the Minutes of Evidence on his Lordship’s court-martial, that, in consequence of an attack made on the evening of the 11th upon the French fleet, then lying at anchor in the Roads of Aix, by explosion vessels and fireships, under the command of Lord Cochrane, the greater part of the French ships cut or slipped their cables and ran on shore.

It further appears that Lord Cochrane in the Impérieuse frigate remained in an advanced position during the night, 418and that at daylight the following morning he made the signal by telegraph to Lord Gambier (who remained with the fleet at its anchorage in Basque Roads, at the distance of about six miles from the enemy) that seven of the enemy’s ships were on shore and might be destroyed.

It further appears that, in consequence of the above-mentioned signal, or of subsequent signals of a similar or nearly similar purport, Lord Gambier caused the fleet to unmoor and weigh, either immediately after the first signal, according to his Lordship’s aforesaid official letter, or after an interval of some time, according to the evidence of some of the witnesses on his Lordship’s court-martial: but that he again caused the fleet to come to an anchor at a distance of more than three miles from the enemy.

It also appears that Lord Cochrane, in the Impérieuse, without assistance and without orders, proceeded to the attack; and that it was not till after his Lordship had made the signal that the enemy was superior, which is coupled with the signal of distress, that Lord Gambier sent in a part of the fleet to his assistance; and it further appears by his Lordship’s aforesaid official letter, and by a due comparison of the minutes of evidence on the aforesaid court-martial, that the Calcutta had surrendered to the Impérieuse before any of the vessels ordered to her assistance had joined.

And it further appears that the ships and vessels which were ordered to join the Impérieuse, in consequence of the last-mentioned signal, or, according to a further official letter of Lord Gambier, in consequence of the Impérieuse being observed to advance, did arrive shortly after the surrender of the Calcutta, and joined in the attack on such others of the enemy’s ships as had not had time to effect their escape; and it further appears that, in consequence of such attack by a part of the fleet only, the Aquilon and Ville de Varsovie were captured and destroyed, and the Tonnerre set on fire by the enemy.

And, lastly, it appears that the only ships participating in the attack were the following:—

419

The Impérieuse,

The Valiant,

The Revenge,

The Indefatigable,

The Unicorn,

The Aigle,

The Emerald,

The Pallas,

The Beagle,

The Etna bomb, and

The Insolent,

Conflict,

Encounter, Gun-Brigs.

Fervent,

Growler,

and that the Caledonia, Admiral Lord Gambier,

the Cæsar, Rear-Admiral Stopford,

and the Donegal,

Resolution,

Theseus,

Gibraltar,

Illustrious, and

Bellona

remained at anchor with the commander-in-chief, and were in no respect aiding or assisting in the attack upon the enemy’s ships, or accessary to their capture or destruction.

L’Aigle.

April 12.

Captain’s log erroneous, and date of the Calcutta’s striking altered.

Emerald.

Captain’s log.

At 12·30 saw the Impérieuse and Etna bomb open fire upon the enemy. At 1·30 answered signal 236. (Note.—By the Caledonia’sCaledonia’s signal, log 336): one hundred having been added to the numbers that day.

Growler.

Ship’s log

10·30 answered signal 314. Commander went on board 420the Admiral. (Note.—No notice is taken of the fleet weighing.)

Conflict.

Ship’s log.

Weighed at 11 A.M.

P.M. at 1 made sail for the anchorage of Isle d’Aix. At 3 came to, and commenced action with the enemy’s ships on shore. At 4·30 answered signal as per margin^[105] made by Imp \. At 5 observed four of the enemy’s ships on fire! left off action. (Note.—Two of which were not burnt till next day.)

Indefatigable.

Captain’s log.

At 11·40 weighed for signal in company with the squadron.

No ship’s or master’s log from March 15 1809!]

At 12·15 shortened sail to let go the anchor. At 2 P.M. answered signals No. 166 and 366, with compass signal south. Weighed and made sail in for Isle d’Aix Roads, to assist H.M.S. Impérieuse. Then engaged with the enemy’s line-of-battle ships. At 3·30 shortened sail and came to in seven fathoms with a spring on the cable, and commenced firing on the enemy.

Insolent.

April 12, Ship’s log.

At 11·30 weighed for order of the Admiral. At 2 P.M. anchored in six fathoms. At 3 weighed and observed Calcutta had struck.

Pallas.

At 12·15 anchored H.M.S. Caledonia.

Revenge.

No Master’s or ship’s log.

No Captain’s log.

Lieut. Garland, who had sent in previous logs has furnished no account of the proceedings in April 1809 until the 24th, and the date of the commencement of the said log is obviously altered, as will clearly appear both as to the month and the day.

421Lieut. Millon, also of the Revenge, ends his log on the 31st of March 1809; although on the title-page he states it to contain the transactions of that ship between the 18th of July 1808, and the 19th of July 1809! And the Captain’s certificate annexed, is dated the 17th of July 1809!

The logs of the other Lieutenants do not appear.

Etna.

At 11 A.M. the Captain went on board the Admiral’s ship. Weighed and made sail by signal, as did the fleet to the southward. At 12, fleet anchored about three miles from the Isle d’Aix. At 1 the Captain came on board, steered in for the enemy’s fleet.

Beagle.

At 11 A.M. starboard and larboard division weighed with with fleet—standing off and on. Fleet anchored; the Impérieuse and Etna bore up for the enemy. At 2·15 Impérieuse made signal to Admiral and anchored with springs and opened her fire. At 2·30 Admiral made sign to frigates Pallas, L’Aigle, Emerald, Unicorn, Indefatigable, Growler, Encounter, Insolent and Conflict to anchor in Charente River.

Extract from the Log-book of H.M.S. Gun-brig Insolent.

April 12th, 1809, P.M.

At 3, weighed and observed Calcutta had struck.

Extract from the Signal-book of H.M.S. Caledonia.

April 12th, 1809, P.M.

2·50, Impérieuse—General, 208. [Being the signal to close, in consequence of which, the Insolent weighed as appears by her log-book at 3 o’clock.]

422

AFFIDAVIT MADE BY ME, DISCLOSING DE BERENGER AS THE VISITOR TO MY HOUSE ON THE 21ST OF FEBRUARY 1814.

Having obtained leave of absence to come to Town, in consequence of scandalous paragraphs in the public papers, and in consequence of having learnt that hand-bills had been affixed in the streets, in which (I have since seen) it is asserted that a person came to my house, No. 13 Green Street, on the 21st day of February, in open day, and in the dress in which he had committed a fraud, I feel it due to myself to make the following deposition, that the public may know the truth relative to the only person seen by me in military uniform at my house on that day.

Cochrane.

Dated 13 Green Street, March 11th, 1814.

I, Sir Thomas Cochrane, commonly called Lord Cochrane, having been appointed by the Lords Commissioners of the Admiralty to active service (at the request, I believe, of Sir Alexander Cochrane) when I had no expectation of being called on, I obtained leave of absence to settle my private affairs previous to quitting this country, and chiefly with a view to lodge a specification to a patent, relative to a discovery for increasing the intensity of light. That in pursuance with my daily practice of superintending work that was executing for me, and knowing that my uncle Mr. Cochrane Johnstone went to the City every morning in a coach, I do swear on the morning of the 21st of February (which day was impressed on my mind by circumstances which afterwards occurred) I breakfasted with him, at his residence in Cumberland Street, about half-past eight o’clock, and I was put down by him (and Mr. Butt was in the coach) on Snow-hill about ten o’clock; that I had been about three quarters of an hour at Mr. King’s manufactory, at No. 1 Cock Lane, when I received a few lines on a small bit of paper, requesting me to come immediately to my house; the name affixed, 423from being written close to the bottom, I could not read; the servant told me it was from an army officer, and concluding that he might be an officer from Spain, and that some accident had befallen to my brother, I hastened back, and found Captain Berenger, who, in great seeming uneasiness, made many apologies for the freedom he had used, which nothing but the distressed state of his mind, arising from difficulties, could have induced him to do; all his prospects, he said, had failed, and his last hope had vanished of obtaining an appointment in America, he was unpleasantly circumstanced on account of a sum which he could not pay, and if he could that others would fall upon him for full 8000l. He had no hope of benefiting his creditors in his present situation, or of assisting himself; that if I would take him with me, he would immediately go on board and exercise the Sharpshooters (which plan Sir Alexander Cochrane I knew had approved of^[106]); that he had left his lodgings and prepared himself in the best way his means allowed. He had brought the sword with him which had been his father’s, and to that and to Sir Alexander he would trust for obtaining an honorable appointment. I felt, very uneasy at the distress he was in, and knowing him to be a man of great talent and science, I told him I would do everything in my power to relieve him, but as to his going immediately to the Tonnant with any comfort to himself, it was quite impossible; my cabin was without furniture, I had not even a servant on board. He said he would willingly mess anywhere; I told him that the ward-room was already crowded, and besides, I could not, with propriety, take him, he being a foreigner, without leave from the Admiralty. He seemed greatly hurt at this, and recalled to my recollection certificates which he had formerly shown me from persons in official situations: Lord Yarmouth, General Jenkinson, and Mr. Reeves, I think, were amongst the number. I recommended him to use his endeavour to get them or any other friends to exert their influence, for I had none, adding that 424when the Tonnant went to Portsmouth, I should be happy receive him, and I knew from Sir Alexander Cochrane that he would be pleased if he accomplished that object. Captain Berenger said that not anticipating any objection on my part, from the conversation he had formerly had with me, he had come away with intention to go on board and make himself useful in his military capacity. He could not go to Lord Yarmouth or to any other of his friends in this dress (alluding to that which he had on), or return to his lodgings, where it would excite suspicion (as he was at that time in the rules of the King’s Bench), but that if I refused to let him join the ship now, he would do so at Portsmouth. Under present circumstances however he must use a great liberty, and request the favour of me to lend him a hat to wear instead of his military cap. I gave him one which was in a back room with some things that had not been packed up, and having tried it on, his uniform appeared under his great coat, I therefore offered him a black coat that was lying on a chair, and which I did not intend to take with me; he put up his uniform in a towel, and shortly afterwards went away, in great apparent uneasiness of mind, and having asked my leave he took the coach I came in, and which I had forgotten to discharge, in the haste I was in. I do further depose, that the above conversation is the substance of all that passed with Captain Berenger, which, from the circumstances attending it, was strongly impressed upon my mind; that no other person in uniform was seen by me at my house on Monday, the 21st of February, though possibly other officers may have called (as many have done since my appointment); of this, however, I cannot speak of my own knowledge, having been almost constantly from home, arranging my private affairs. I have understood that many persons have called under the above circumstances, and have written notes in the parlour, and others have waited there, in expectation of seeing me, and then gone away; but I most positively swear that I never saw any person at my house resembling the description and in the dress stated in the printed advertisement of the members of the Stock 425Exchange. I further aver, that I had no concern, directly or indirectly, in the late imposition, and that the above is all that I know relative to any person who came to my house in uniform on the 21st day of February, before alluded to. Captain Berenger wore a grey great coat, a green uniform, and a military cap. From the manner in which my character has been attempted to be defamed, it is indispensably necessary to state that my connection in any way with the funds arose from an impression that in the present favourable aspect of affairs, it was only necessary to hold stock in order to become a gainer, without prejudice to anybody; that I did so openly, considering it in no degree improper, far less dishonourable; that I had no secret information of any kind, and that had my expectation of the success of affairs been disappointed, I should have been the only sufferer. Further, I do most solemnly swear, that the whole of the omnium on account which I possessed on the 21st day of February 1814 amounted to 139,000l., which I bought by Mr. Fearn (I think) on the 12th ultimo, at a premium of 28¼; that I did not hold on that day any other sum on account, in any other stock, directly or indirectly, and that I had given orders when it was bought to dispose of it on a rise of 1 per cent, and it actually was sold on an average at 29½ premium, though on the day of the fraud it might have been disposed of at 33½. I further swear, that the above is the only stock which I sold, of any kind, on the 21st day of February, except 2000l. in money which I had occasion for, the profit of which was about 10l. Further, I do solemnly depose, that I had no connection or dealing with any one, save the above mentioned, and that I did not at any time, directly or indirectly, by myself or by any other, take or procure any office or apartment for any broker or other person for the transaction of stock affairs.

Cochrane.

426

APPENDIX V.

LETTER FROM RICHARD GURNEY, ESQ. TO LORD|COCHRANE.

King’s Bench, Sept. 9th, 1814.

My Lord,—In replying to your Lordship’s letter of yesterday, I beg to observe that several applications have been already made to me from several quarters, for the purpose of obtaining the particulars of the conversation between the Honourable Mr. Murray, another gentlemen, and myself, alluded to in your letter, but that I have hitherto refused to comply with such applications, for reasons which must be sufficiently obvious to every delicate and honourable mind. Being requested, however, by your Lordship, to say whether “your name” was said to have been connected “by De Berenger” with the imposition which he had “in contemplation,“in contemplation,” I can no longer hesitate in giving, to the best of my recollection, a statement of the facts relating to your Lordship.

A few days before the late trial against your Lordship and others, I was informed by Mr. Murray, that he was to be examined as a witness on the approaching trial. I asked him what was the nature of the evidence he had to give? He replied, that De Berenger had some time ago told him that he, De Berenger, and Mr. Cochrane Johnstone, had a plan in contemplation, which would be the means of putting a large sum of money into each of their pockets: that he joked De Berenger, and asked him to let him into the secret of the plan: that De Berenger laughed, and refused to tell him what the plan was, saying it was too good a thing to be made known.

Mr. Murray added that this conversion with De Berenger took place a short time previous to the hoax on the Stock Exchange; and that it was imagined, from a combination of circumstances, that De Berenger must have had the hoax in view when he spoke of the plan between Mr. Cochrane Johnstone and himself.

427I asked Mr. Murray if your Lordship’s name was mentioned by De Berenger? He replied, “Oh, no; nothing was said about Lord Cochrane.”

I observed that I was glad of this, as I conceived De Berenger would certainly have mentioned your name as well as Mr. Cochrane Johnstone’s, had your Lordship been in the plot.

Mr. Murray rejoined, “Yes, I think it very probable.”

The morning after, Mr. Murray, in accidentally recapitulating the conversation between De Berenger and himself, remarked, that upon recollection he thought your Lordship’s name was mentioned by De Berenger, and presently afterwards he observed, that, on reconsideration, your Lordship’s name certainly was mentioned. I naturally felt surprised at this statement, it being so contradictory to that of the preceding day, and took the liberty of observing to Mr. Murray, that I conceived he would act wrong, however correct his intentions might really be, to give any evidence respecting your Lordship, after so strangely forgetting himself as to the only part of the conversation which could affect your case.

Other conversation passed, but I am not so positive and clear in my recollection of it as of that which I have detailed to your Lordship.

I have the honour to be, &c.,

Richard Gurney, Jun.

APPENDIX VI.

LETTER FROM LIEUT. PRESCOTT TO LORD COCHRANE.

King’s Bench, Nov. 28th, 1814.

My Lord,—Having been requested by your Lordship to commit to writing the information which I communicated to you some months ago, I have no hesitation in complying with your request.

428The substance of the account which I received from the persons whose names I mentioned to you, and who may be called upon if required, is, that they were of the party at a dinner, which was termed, “The Stock Exchange Dinner,” provided by order of Mr. Harrison, at Davey’s Coffee-house in the Bench, on the day before the trial; at which dinner the Honourable Alexander Murray was also of the party, which consisted of seven or eight persons: that after they had dined, and the bottle had gone briskly round, Harrison said to Mr. Murray (who was then, and still is, a prisoner for debt) that he would get his affairs settled; and as he should receive a large sum from the Exchange for the conviction of Lord Cochrane, if he (Murray) wanted 50l. he should have it to-morrow; proposing at the same time, “Success to the Stock Exchange,” which was drunk in claret with loud cheering: that this took place in the public coffee-room, before many persons both in the room and looking in at the windows, the dinner attracting considerable attention from its style, which was unusual in the Bench: that Mr. Harrison, in answer to a remark from one of the bystanders, that the dinner would cost a round sum, said, it did not signify if it cost 50l., as the Stock Exchange would pay for it: that when the majority of the party had drunk as much as they could or were willing to drink, Mr. Harrison ordered several full bottles to be placed on the table; and the task of finishing the wine which remained devolving at length on the Honourable Alexander Murray, and he being unable to accomplish it by himself, he went into the lobby of the prison, and procured two of the turnkeys to assist him.

The further account of one of the persons above alluded to (who usually messed with Mr. Murray), is, that for some time previous to the trial Harrison was daily with Mr. Murray, dining and drinking with him; and that he was present when Harrison visited Mr. Murray, accompanied by the solicitors, Messrs. H. and R.; on which occasion Harrison said to Mr. Murray, “Here are the gentlemen who will accomplish your wishes;” and one of those gentlemen replied, “Yes, 429Mr. Murray, after this trial of Lord Cochrane has past, we will then attend to your liberation:”^[107] that he heard Mr. Harrison declare in the lobby, as did many other persons, that he should receive a sum of money if he could procure evidence which would convict Lord Cochrane; intimating at the same time, that he was induced to offer his services to the Stock Exchange, in procuring evidence against him, by his personal antipathy to the whole family of the Cochranes, which he said would never subside while he breathed; that, subsequent to the trial, he has repeatedly heard Mr. Murray express himself sorry for having appeared in Court against Lord Cochrane, and acknowledge that he had been the dupe of Harrison, in persuading him that his solicitors would undertake the arrangement of his affairs and effect his liberation, provided he would appear as an evidence against Lord Cochrane at the trial.^[108]

Shortly before the trial I addressed two letters to your Lordship on the subject of Harrison’s visiting and tampering with Mr. Murray, who was expected to appear as an evidence against you; but your Lordship did not answer those letters, nor attend at that time to my communications. The fact, however, was notorious in the Bench. Of my own knowledge I have only to add, that on the day of the Stock Exchange Dinner (as it was called), my attention was attracted by the noise of the entertainment and the number of people collected; and I went into the coffee-room and saw the party at the table, as did many other persons; and towards the close of the evening I saw Mr. Murray return from the lobby into the coffee-house, accompanied by one of the turnkeys. 430It was well known that Harrison was in a state of extreme indigence previous to the trial^[109]; but shortly afterwards, I was present when he took a considerable number of bank-notes out of his pocket, and saw him place a 50l. note in the hands of a gentleman, to remain till an account with Mr. Lewis was investigated. I have also heard Harrison declare, in the presence of other persons, that he would ruin the whole Cochrane family.

I am your Lordship’s most obedient servant,

Thomas Prescott.

APPENDIX VII.

MINUTES FURNISHED TO MESSRS. FARRER AND CO. MY SOLICITORS AT THE TRIAL, AT THEIR OWN REQUEST, AND ENDORSED BY THEM, “LORD COCHRANE’S MINUTES OF CASE.”

Lord Cochrane was not in habits of intimacy with De Berenger.

De Berenger never broke bread in Lord Cochrane’s house; and never, as far as Lord Cochrane knows, sat down in it.^[110]

Lord Cochrane’s servants never carried a note or letter to De Berenger, or put any note or letter into the post for him.

De Berenger’s servants never brought any note or letter to Lord Cochrane, or forwarded any addressed to him.

The only person who came to No. 13 Green Street, on the 21st of February, in uniform, or the appearance of uniform, was De Berenger.

De Berenger wore a grey great-coat, without any trimming; 431and had a green coat, or a coat with a green collar, under it.^[111]

De Berenger sent a note to Lord Cochrane, which was delivered to him at Mr. King’s manufactory, where he was in the daily habit of going.

The Hon. Major Cochrane was dangerously ill, and confined to his bed, at that time in Spain.^[112]

Lord Cochrane was appointed to command the Tonnant but had obtained leave of absence to draw up and lodge the specification to a patent.

His leave of absence was to expire on the^[113] and he did write such specification, and lodge it on the^[114]

The man who happened to open the door to De Berenger had been hired for the express purpose of going into the country to relieve Lord Cochrane’s sea-steward, and did so accordingly.

No man whatever lived in Lord Cochrane’s house, except himself and one or two servants.

The servants, who were discharged, had received a regular month’s warning, and left in consequence thereof.

On^[115] \, Lord Cochrane directed Messrs. Lance and Smallbone to purchase for him 5000l. omnium for money^[116]; but on going to the office^[117] with the intention to pay for it, he found that he had neglected to bring the necessary sum; and having only about 50l. with him, he borrowed of Messrs. Fearn, Lance, and Smallbone, a sum equal to the deficiency, except 200l. which was lent to his Lordship by Mr. Butt.

Mr. Fearn was repaid on the following day^[118] by the sale of the omnium, Lord Cochrane having given orders to sell it, in the event of his not being able to come into the city, which was the case.

432Messrs. Lance and Smallbone repaid themselves, and Lord Cochrane returned Mr. Butt the 200l. when he received the balance on Saturday the 19th.

APPENDIX VIII.

King’s Bench, July 25th, 1814.

Gentlemen,—In consequence of what passed in the House of Commons on Tuesday last, I feel it my duty to call upon you, as my solicitors on the late trial, for answers to the following questions:—

Did I ever give you, in writing, any other instructions for the brief, than a few observations contained in one sheet of paper, which was afterwards endorsed by you, “Minutes of Case”?

Was not the description of De Berenger’s dress as contained in those minutes, namely, “a grey great-coat, without any trimming, and a green coat, or a coat with a green collar, under it,” understood by you to have reference to what could be proved only, and not to imply a doubt in my mind as to the colour of the under coat, but merely to intimate that the witnesses might only be able to speak to the colour of the collar, on account of the body of the coat having been concealed by the great-coat?

Did not I, at your request, send my servants, Thomas Dewman and Mary Turpin, to your office to be examined by you preparatory to your drawing the brief? And were not you previously in possession of my affidavit, in which the coat worn by De Berenger in my presence on the 21st of February, is sworn to have been green? And were not you aware that my said servants had also made affidavits that the officer they saw at my house on that day wore a grey great-coat, buttoned up, with a green collar underneath?

433Did you not particularly question them as to the colour of the under-coat? Did you not expressly ask them whether it was a red coat? And whether they could swear that it was not a red coat? which they could not, because it was worn under a great-coat, which was buttoned up.

Was it not in consequence of repeated questions that they were induced to admit that the under-coat might be red? Did either of my servants admit that any part which he or she SAW of the under-coat was red?

Did you not, in consequence of the examination of my servants, insert in the brief that the under-coat worn by De Berenger was a red coat with a green collar?

Did you ever call my attention to that part of the brief, by word or letter? And do you really believe that I was privy and consenting to the fact of my counsel being authorised by the brief to admit that coat to be red, which I uniformly declared to you was green, and which I had sworn to be green?

Did you read the whole of the brief to me, or merely detached parts? Did I peruse it myself in your presence, or to your knowledge? Did you ever, previous to the trial, furnish me with a copy of it?

Did I ever make any alterations in the depositions of the servants, or in any part of the brief, relative to what they could depose on the important subject of De Berenger’s dress? Did I ever desire you to re-examine them on that point?

Did I ever, as far as you know and believe, give instructions to my counsel? Did I ever attend any consultation? Was not my defence mixed with Mr. Johnstone’s contrary to my orders? and did you inform me that Mr. Johnstone’s counsel, and not my own, was to plead my cause?

Was I not, as far as you know and believe, absent from London for near three weeks, previous to and up to the Monday preceding the trial?

Did you ever call the attention of the counsel, by word or letter, to the difference between the statement in the brief and the affidavits of myself and servants, respecting the dress 434of De Berenger? When did the counsel, to the best of your belief, discover that difference?

Did I not send my servants to Guildhall on the 8th of June, the first day of the trial, to be examined? Did I not send you a note by them, to inform you that I had sent them for that purpose? Did I not send them again on the second day of the trial? and did I not write to you on that day, particularly requesting that they might be examined? When did you receive my second letter? Was it not prior to the close of my defence? and if subsequent, was it not at least several hours prior to the close of De Berenger’s defence? Had the counsel, to your knowledge, resolved at all events not to examine my servants? Did you communicate to me such their determination? Have you any reason to believe that I had the least knowledge, prior to the trial being closed, that my servant would not be, or had not been, examined?

If I had been informed that the counsel had refused to examine them, might I not have gone into Court, and personally demanded the examination of my witnesses?

I am, &c.

Cochrane.

Messrs. Farrer & Co.

Lincoln’s Inn Fields, Aug. 3, 1814.

My Lord,—We were duly honoured with your Lordship’s letter of the 25th ult. requiring our answers to many questions relating to the late prosecution; but after what has passed, and the communications we have already made, we hope your Lordship will agree with us in thinking, that it would be highly improper in us now to answer any more abstract or partial questions. We have, agreeably to your uncle’s desire, made out, and now beg leave to inclose you our bill in that business, in which you will find most of the facts to which your questions relate stated as they occurred.

We are, &c.

Farrer and Co.

435

APPENDIX IX.

WESTMINSTER ELECTION.—LETTER FROM THE RIGHT HON. RICHARD BRINSLEY SHERIDAN TO ARTHUR MORRIS, ESQ., HIGH BAILIFF OF WESTMINSTER.

Saville Row, Sunday evening, July 10, 1814.

Sir,—Observing that you have called a meeting to-morrow, to be held in Palace Yard, to consider of a fit person to fill up the present vacancy in the representation of the City of Westminster, and having myself received very earnest applications from numerous and independent bodies of its inhabitant householders, requiring that I should meet their wishes by proposing myself as a candidate, I take the freedom of addressing these lines to you, to say that I absolutely decline to be put in nomination in opposition to Lord Cochrane.

I send you this my determination without concert or communication with the respectable persons to whom I have above referred, and towards whom I must ever continue to give the utmost gratitude.

I trust that I need not declare that I should have felt greatly honoured by having been again returned the representative of Westminster; my title to aspire to that distinction is simply that after more than thirty-one years’ service in Parliament, I can, without fear of successful contradiction, assert that I never gave a vote that was not in support of the truth of liberty, and in assertion of the people’s rights, duly respecting at the same time the just prerogatives of the Crown, and revering the sacred principles upon which was founded and maintained the glory and the security of our unrivalled Constitution.

Holding these opinions, as a public man, have I hitherto sat in the House of Commons; and never will I accept a seat there but on the sole condition of being the master of my own vote and voice—the servant only of my conscience.

436As to the present question, which occasions your meeting to-morrow, I enter not into it. No man feels more the reverence due to the seats of justice, or the confidence due to the verdicts of juries. But under the circumstances of an expulsion from the House of Commons, I do not hesitate to say, that I have a decided opinion that the expelled member has a right to appeal to his constituents, with a view to the restitution of his seat and the rescue of his character.

On these grounds, Sir, I will not allow myself to interfere with the present appeal made on the part of Lord Cochrane, and to which I conceive him to be so justly entitled.

In adopting this determination, I beg leave distinctly to state, that I waive my claim to solicit the suffrages of the electors of Westminster in favour of Lord Cochrane alone.

I have the honour to be, Sir, &c.

Richard Brinsley Sheridan.

APPENDIX X.

[The Times, July 12th, 1814.]

WESTMINSTER MEETING.

Yesterday there was a very numerous meeting at Palace Yard, convened by the high bailiff, for the purpose of nominating a fit and proper person to represent the City of Westminster in Parliament.

The high bailiff shortly stated the purpose for which the present meeting was convened. He had received two letters, which it would be his duty to read to them. The one was from Lord Cochrane (loud shouts of applause), the other from Mr. Sheridan (cries of “No Sheridan!” and loud expressions of disapprobation from the multitude who supposed that Mr. Sheridan was offering himself as a candidate).

The letter from Lord Cochrane was first read. He enclosed 437to the high bailiff a full and unmutilated account of the defence made by him at the House of Commons, which he requested him to read to the meeting.

(Many voices called out, “Read, read!” while many others, both on account of the great length of it as well as the danger of publishing certain passages of it, cried “No, no!”).

The high bailiff declined to read it. He then read the letter from Mr. Sheridan, waiving his claims in favour of Lord Cochrane.

The high bailiff then asked if any gentleman had anything to propose.

Sir F. Burdett came forward amid the loudest applause. He had on many occasions witnessed with pleasure the generous feeling and independent spirit of the electors of Westminster; but he had never on any occasion witnessed the ebullition of their feelings with such satisfaction as on the present occasion, as there never was one in which it was more important. The question now was, whether an innocent individual (loud applause), for so he conceived him to be, should be destroyed by the machinations of corruption and power, or whether he should be supported by the voice of his constituents. He hoped that by the suffrages of the electors of Westminster, that character would be maintained which he thought had never in any instance been forfeited. They had heard a letter read from Mr. Sheridan, who had with great propriety and prudence withdrawn his pretensions, such as they were. Of the value of that gentleman’s claims and pretensions he would not now judge; but he thought that it was prudent and polite of him not to press them at present against the popular feeling and the current of public opinion. They had heard also a letter from Lord Cochrane, who wished his defence to be read to them at length. It was not surprising that the high bailiff should decline reading that statement, or that no other person should be found bold enough to do so. At a time when libel was an offence so undefined in its nature that no man knew when he might be speaking or writing libels, he could not himself say whether 438he was not about to speak libels, but that consideration should not prevent him from speaking the truth. Lord Cochrane had, however, with that fortitude which he had so often displayed in the defence of his country, and which had never been more strongly displayed than during the late trying occasion, ventured boldly to speak his mind in the House of Commons, and was now ready to incur all the additional risks of publishing the statement he had there made. When he had made that statement, the minister of the country, or, as he should term him, the nose leader of that illustrious and august body (a laugh), not having the power of gagging Lord Cochrane, or preventing his assertion of his innocence, and knowing well the effect that such an appeal to the public would naturally produce, rose, in all the blushing honours of his blue ribbon, to impose silence upon the corrupt and degraded press that is still suffered to exist in this country. At the moment when the House of Commons was going to stigmatise Lord Cochrane with an additional vote conveying censure, the minister thought that it was not proper that the people should hear his defence. Lord Cochrane, feeling, however, as a man of honour must do, that no risk was comparable to the loss of character, wished, at every hazard, to support his hitherto unsullied character and reputation. He therefore wished that his address should be read to the meeting; but the high bailiff must, on such an occasion, be allowed to exercise his own discretion and judgment. When the uniform conduct of their chairman was taken into consideration, everybody must be convinced that his motives were always just and honourable, and therefore it would be most unhandsome in them to press him to act contrary to his own judgment in this particular instance. He felt it now unnecessary to detain the meeting with entering into a detail of the case: the statement of the noble lord had, however, explained those circumstances which appeared to require explanation. He should not now find fault with the jury that tried Lord Cochrane (who were, as he was informed, very respectable persons); but he should for ever find fault with that 439mode of picking out a jury which Lord Cochrane had called packing them. He did not mean to find fault with the verdict which they found upon the evidence that was laid before them—evidence which was so skilfully and so artfully got up against him by those who had the arrangement of the prosecutor’s case, and which had been so feebly met by those who undertook the defence of Lord Cochrane. On such evidence they had found Lord Cochrane guilty of a fraud of which he was sure that he was as incapable as any gentleman whom he had then the honour of addressing. The noble lord had certainly charged the noble and learned judge who tried him with a false statement of the facts of the case, and with a gross misdirection to the jury. As Lord Cochrane had been prevented, by the rules of law from having the opportunity of having his case re-tried, he now came before the public for the vindication of his character. He should contend, however, that the rule which was set up against the granting to his Lordship a new trial was contrary to the law, as the law never requires a man to do impossibilities. As, however, some of those who were tried with Lord Cochrane had fled from the country, and others were evidently not under his control, it was impossible that he should have been able to bring them all into court at the time he wished to move for a new trial. The principle, however, that the law never requires of a man to do impossibilities was maintained on another occasion with respect to those proceedings. When, on the part of some others who had been tried with him, an objection had been made to the indictment as not being sufficiently specific, the answer was, it was impossible to make it comprehend every point, and that the law did not require impossibilities. If the law, however, did not require impossibilities in the one case, neither would it require them in another (great applause). They must all remember what an impression had been made on the public mind before the trial by the publishing of evidence, if evidence it could be called, which was given before that body that designated themselves the Committee of the Stock-Exchange. He was convinced that almost every 440man in the court had formed his opinion from this publication of evidence, before the Stock-Exchange Committee, before Lord Cochrane had been put upon his trial. He had heard of what was called the summing up of the noble judge; but his idea of a summing up was, the statement of all the items on the one side and on the other, without addition or subtraction, and presenting to the jury a fair balance. His idea of a judge was that he should be a person free from passion or strong feeling on the case he was to try; but that he was to assist the jury by a clear and impartial statement of the evidence on the one side and on the other.

The noble judge who tried Lord Cochrane was an eloquent person, and, as he thought, his eloquence on this occasion had been unfortunate for himself. He thought that he had been as eloquent as an advocate, and as an impassioned advocate. Indeed, some of his phrases and metaphors appeared to him more nearly to resemble the language of poetry (a laugh), and would, as he thought, give him fairer pretensions to the situation of Poet Laureate, than some who had aspired to it (laughter). When he had spoken of “hunting down the chase, and getting the skin,” it reminded him of the old proverb, “that the man who sold the lion’s skin, while the lion was yet alive, was himself killed in the chase.” He believed that Lord Cochrane was not yet hunted down; but that, on the contrary, he was now turning against his hunters. It now remained for the electors of Westminster to vindicate the character of an illustrious person who had rendered great services to his country (loud applause); services which, if he had even been guilty of the meanness imputed to him, should, as he thought, have protected him from the degrading infamy which it was now intended to have inflicted upon him. (“No, no!” from many persons, as expressing a hope that the sentence would not be inflicted.) He should hope that the malice of his enemies would not prevail; but even if he were to suffer that degrading punishment, he would confidently look for his acquittal to the unpacked and uncorrupted verdict of his constituents and his countrymen at large. He 441say, that if Lord Cochrane was to stand in the pillory, he should feel it his duty to attend also (loud shouts of applause, which lasted for many minutes). The disgrace that might be intended for Lord Cochrane, would, so far from stamping him with infamy, remove in the public opinion the idea of infamy from the punishment of the pillory. No man, that had hitherto conceived it an honour to follow the noble Lord would, for the future, conceive it infamy to stand in the pillory in which he had stood. It appeared to him that instead of destroying Lord Cochrane, the infliction of that part of the sentence would destroy the punishment of the pillory for the future. If even Lord Cochrane had been guilty of the offence with which he was charged, would it be supposed that it was for that offence he had incurred such vengeance, or would it not rather be supposed that the real crime, which could not be forgiven, was his bold and independent conduct in the defence of their rights and liberties? (applause). This was a crime as unpardonable in the eyes of some men as that which is called by religious men the sin against the Holy Ghost. How marked a difference was there between the punishment inflicted upon him and the treatment of the most notorious delinquents and depredators of the public purse. They, forsooth, are all honest gentlemen, and meant to pay back at some time or another; and by places and pensions they were often enabled to pay back to the public out of their own money. This put him in mind of a story he had once heard of a Scotch gardener, who flourished and grew rich while his neighbours were failing. One of them, however, having got up very early in the morning, met him with a cartful of wall-fruit, which he had stripped from their gardens, and asked him, “Where are you going?” The Scotchman answered, “I am going back again” (a laugh). This was the case with the great public delinquents: when they were found out, they were let go back again. He had no doubt but that with the sense they appeared to entertain, both of the innocence and merits of Lord Cochrane, they would enable him again to go to the House, not for the purpose of 442pruning that hateful system whose branches had extended so wide, but for the purpose of laying the axe to the root of corruption (applause), in order that a natural and wholesome vegetation might take its place. He had exerted himself to rescue the property of his gallant brethren in arms from the gripe of legal harpies; he had acted with independence in circumstances where it was not easy to act independently. He thought that a real independent representative, a man not connected with or swayed by any party, stood in rather a forlorn and difficult situation. Having said so much, he should leave the case of Lord Cochrane to their decision; to them he should commit not his life, for that he had freely and often risked for honour at the cannon’s mouth, but that immortal part, which was far dearer to a man of honour than his life, his reputation and his character. To them he now confidently made his appeal, and he trusted that he should not be disappointed. After a few more observations, he concluded by moving the following resolution:—

“Resolved, that in the opinion of this meeting, Lord Cochrane is perfectly innocent of the offence for which he has been sentenced to receive an infamous punishment.”

Mr. Wishart seconded the motion. Great pains, he said, had been taken to trace one part of the route of De Berenger; but not so much with respect to the other. He did not think that the witnesses on the trial were perjured; but Berenger might have brought the coat along with him in the bundle which he held in his hand. Lord Cochrane came forward like an innocent man, and stated all that he knew of the transaction; nor could it be reasonably inferred that he was implicated in the fraud because Berenger came to his house. The rule of the Court had placed Lord Cochrane in a most difficult and perplexing situation; a rule wholly unknown to the best times of the constitution. Judges thus took the law in their own hands, and encroached upon the functions of Parliament. He did not intend to arraign the conduct of the jury, though the verdict of the juries who had condemned Russell and Sidney had been subsequently reversed (loud 443applause), because it had been improperly obtained, and the memory of those illustrious patriots would remain embalmed in the recollections of the latest posterity. Many judges had been an ornament to the country that gave them birth, such as Sir M. Hale, Lord Camden, and others; and would to God judges like them always presided in the seat of justice. Every man who was actuated by a cause of justice, or by the feeling of humanity, would pour the balm of consolation into the wounded spirit of the noble Lord, who had deserved so well of his country, and who, from some, at least, of his countrymen, had met with such an ungrateful return.

Major Cartwright said there was nothing in any part of the evidence which warranted the learned lord (Ellenborough) in stating that De Berenger came to the house of Lord Cochrane emblazoned in all the costume of his crime. Such an assertion would only be accounted for upon the supposition, that in his charge to the jury he had trusted rather to his memory than to his notes. The evidence against Lord Cochrane was like a grain of sand in one hand, while that in his favour was like Westminster Abbey in the other (loud and reiterated applause).

Mr. Walker thought that it was the duty of the noble Lord’s constituents to replace him in his situation as Member for Westminster (shouts of applause).

Mr. Alderman Wood, when he first heard of the charge against Lord Cochrane, had said he was innocent, and that he had not the heart nor the disposition to commit a fraud (applause). After the trial he was of the same opinion, and everything that had since taken place contributed still more to strengthen that belief. He had heard from one of the jury (who had assured him that others of that jury were of the same sentiment), that had the evidence since produced been brought forward upon the trial, or had Lord Cochrane been in Court and made his own defence, it would have been impossible to have found him guilty (bursts of applause). If necessary, he could bring the individual alluded to before them (“Bravo, bravo!”). When he first heard of the result of 444the trial, he, as an elector of Westminster, had been turning in his mind whom it might be proper to propose for their representative. He was happy to think that now there was no opportunity for any deliberation of that kind, for the electors of Westminster would do justice to an injured character, and return him by their verdict to that House from which he had been expelled (loud applause). The resolution was then put and carried by acclamation.

Sir F. Burdett then moved the second resolution:—

“That it is therefore the opinion of this meeting, that Lord Cochrane is a proper person to represent the City of Westminster in Parliament, and that he be put in nomination at the ensuing election.”

This was seconded by Mr. Sturch, and carried unanimously, and with great applause.

Sir F. Burdett then moved the third:—

“That a Committee be appointed for the purpose of carrying into effect the foregoing resolutions, with power to add to their number.”

This was also agreed to, and Sir Francis proposed several names, among which were Mr. Alderman Wood, Mr. Brooks, Mr. Adams, and Mr. Jones Burdett, &c.

The Hon. Baronet next moved the fourth resolution:—

“That a subscription be entered into to defray the expenses of the ensuing election, toward which it is the bounden duty of every elector and friend to purity of election to contribute.”

It was seconded by Mr. Wishart, who said that as the City of Westminster had set an honourable example in returning members free of expense, it became their character to continue the practice: but their treasury was not inexhaustible, and he hoped that every friend to the purity of election would come forward and contribute on this occasion (applause).

Major Cartwright moved the fifth resolution:—

“Resolved—That the thanks of this Meeting be given to 445Sir Francis Burdett, and the forty-three honourable members who voted against the expulsion of Lord Cochrane.”

Sir F. Burdett returned thanks; and, after a vote of thanks to the high bailiff, the meeting broke up.

APPENDIX XI.

[The Morning Chronicle, July 18th, 1814.]

WESTMINSTER ELECTION.

On Saturday last, in pursuance of the notice of the high bailiff, a numerous body of the Westminster electors met at the porch of St. Paul’s, Covent Garden, to choose a fit person to represent their city in Parliament. At ten o’clock proclamation was made and the writ read, when Sir F. Burdett came forward on the hustings, and, addressing the electors, said, that in pursuance to the unanimous resolutions of the electors of Westminster in Palace Yard, he had appeared to put in practice that which was unanimously determined on at that time, by putting in nomination the person whom they had then determined to be worthy to represent them. And such was the effect which that unanimous expression of opinion had produced, that, almost for the first time, they were not faced by any Court candidate; for such was the weight that it carried, that it had imposed silence in all quarters (applause). It would ill become him to detain them long from that great purpose—great it was, for it was the purpose of doing justice and maintaining the oppressed which they were that day assembled to accomplish, but he thought it his duty to add a few words on so novel and important an occasion (marks of approbation). The assembly of that day presented the most august spectacle to the mind of man—it was the image of a free people—of a body of free men, appealed to in the last resort, from all minor and inferior jurisdictions, by an oppressed individual—oppressed by corrupt 446machinations and artful combinations. From whatever cause this oppression arose, it was enough that he was oppressed, and that he had appealed from his oppressors to the justice of the people at large—for the character by which the people of England was most distinguished was the love of justice (applause). It was needless to attempt to display any of the merits peculiar to Lord Cochrane, because whatever these merits or demerits, if any such existed (of which he, Sir F.B. was not aware), were of little consequence. It was not in the view of personal merits or demerits, but in the defence of a man oppressed unjustly, as they believed—in support of justice, that they were called on to give their suffrages on this occasion. Though idle reports or malignant artifices had been played off against Lord Cochrane, even had they not carried in themselves their own refutation, they would have had no weight with the electors of Westminster. Free bodies of electors had always shown a disposition to support the oppressed, and particularly in the case of that individual whose apostacy had done such injury to the cause of liberty, and who had always been thought by those who knew him intimately, to have been unprincipled—John Wilkes. In that case, despite of all dislike to the character of the man, he was maintained because he was an object of oppression, and because he had avowed those principles of public liberty which could never fail to vibrate in the hearts of the people of England (loud applause). We had lately had amongst us the great sovereigns of distant states, to whom we had shown that respect and kindness which they claimed, from the regard they had shown to human liberty and human happiness; when, had they appeared in their artificial characters of princes only, they might have passed unheeded without any marks of our affection and regard (applause). He regretted that they had now departed from this country without seeing what he (Sir F.B.) then saw, and which outshone all the shows and entertainments (a laugh) with which, as a mark of respect, they had been justly entertained—the spectacle of a free people in the act of 447maintaining an oppressed fellow-citizen against the arm of corruption and power (applause). Such a spectacle as this no other nation on the earth could afford....

We had heard a great deal lately about hoaxes, especially of that in which my Lord Cochrane had been so innocently and unfortunately implicated. We have been told of a trial by jury, who are supposed to be impartial men, taken at random; now my Lord Cochrane has been tried—tho’ I think no blame attaches to the jury who tried him, who, I think, under the circumstances did their duty—not by a jury of the country, but by a packed and selected jury. There is no greater hoax than to try a man by such a jury (applause and laughter),—and to tell him he had been tried by a jury of his country. We have been told that the judge should not only be impartial, and sit on the bench as a stone, with no feeling, but with all judgment, but that he should be a counsel for the prisoner. What sort of counsel for Lord Cochrane was my Lord Ellenborough? (Loud laughter and applause). Indeed my Lord Cochrane has been the most hoaxed of any man (applause).

That very morning he (Sir F. Burdett) had been looking into a newspaper which was famous for hoaxing, and which formerly produced the fabricated French news—he meant the Morning Post (a laugh). In that paper there was a paragraph, stating that the Princess Charlotte was delighted at her residence at Carlton House, and was highly gratified to see her old friends about her. This he should conceive was somewhat of a hoax (a laugh). It was given out to the public that those gew-gaws in the parks, that the childish amusement of squibs and crackers, were all intended solely for the delight of the British public, which public, by the way, would have to pay all the expenses out of its own pockets. Was not this a hoax? (A laugh.) But there was one still greater. There was a large body of placemen who grow rich with the public money, and yet were so fastidiously delicate that they could not endure that any peculator of a different stamp should associate with them. Those immaculate 448persons who thus lived by the public purse chose to call themselves the representatives of the people of England. He trusted that the example set by the City of Westminster would spread through every part of the kingdom, and that the corrupt would be taught that England was not to be so represented. If other places would act like Westminster, and return their members to Parliament not only without expense, but without the least solicitation, in that case Corruption would receive, if not her death-blow, yet such a wound as would prevent her from ever re-assuming an influence pernicious to the best interests of the country. He would now propose to them Sir Thomas Cochrane, commonly called Lord Cochrane; as a fit representative to serve them in Parliament (great applause).

Mr. Sturch seconded the motion. He had never had any personal or political connection with Lord Cochrane till he visited his Lordship in prison; and he should support his Lordship because he was persuaded that he had been condemned on imperfect evidence, and because the severity of his sentence was such as to astonish the whole nation.

The high bailiff then put the question, which was carried with acclamations and unanimously, and the high bailiff then declared Lord Cochrane to be elected (loud applause).

Alderman Wood next addressed the meeting. He began by alluding to some newspapers which had called his conversation with the juryman chit-chat. He denied that it was chit-chat; it was a solemn assertion made by a gentleman in the name of himself and some of his fellow-jurors. He begged the electors to dismiss from their minds these calumnies which had appeared respecting Lord Cochrane’s treatment of his father. He had made the most anxious inquiries into that matter, and had gone late last night to gain more particular information; and he was able to assure them positively that Lord Cochrane had always been distinguished for his kindness, generosity, and attention to his poor unfortunate father. It was evident that there existed somewhere a very vindictive feeling towards Lord Cochrane. As a proof, he 449would mention that order of the Secretary of State which directed that the punishment of the pillory should take place on the 10th of August (cries of “No Pillory”). Now it had always been usual to leave the time to the discretion of the Sheriff, who never inflicted this punishment at so early a period after the sentence. If he himself were Sheriff he should refuse to obey such an order; and should content himself with alleging that the time appointed did not suit him (great applause). The worthy Alderman concluded by an allusion to the paragraph concerning the Princess Charlotte. He had reason to know, that in spite of all that high satisfaction which she was said to feel in her own residence, she had made three attempts to escape (laughter and applause).

The usual thanks followed, and the meeting dispersed.

APPENDIX XII.

[Cobbett’s Political Register, July 30th, 1814.]

RE-ELECTION OF LORD COCHRANE.

In consequence of the unanimous return of his Lordship to fill his seat in Parliament, as one of the representatives for the City of Westminster, the following letters passed between his Lordship and Mr. Brooks, Treasurer of the Westminster Committee. It is a fact, perhaps not generally known, that, with the exception of one or two newspapers, the London journals have thought proper to refuse giving publicity to this correspondence. Such, indeed, is the degraded state of our press, that the editor of a Sunday paper, in giving his Lordship’s letter, omitted several of the most striking passages in it, which, as was done in publishing his defence, he supplied with stars!

450Committee-room, King Street, Covent Garden,

July 16th, 1814.

My Lord,—I am directed by the Committee of Electors of Westminster, appointed at the general meeting held in New Palace Yard, on Monday the 11th instant, to acquaint your Lordship that you were this morning nominated as a fit and proper person to fill the vacancy in the representation of the City of Westminster in Parliament, occasioned by your Lordship’s expulsion; and that you were immediately re-elected, without opposition, and with the most lively expressions of universal approbation. The Committee further direct me to convey to your Lordship their sincere congratulations on an event so happily demonstrative of the sense which your constituents entertain of the accusation which has been brought against you, and of the very extraordinary proceedings by which it has been followed up; and to assure your Lordship that it affords them the highest gratification to find that you are able to oppose to the envenomed shafts of malice and party spirit the impenetrable shield of conscious innocence. They rejoice to see that the prejudices occasioned by gross and shameless misrepresentation are fast wearing away from the public mind; and they trust that the time is near when your Lordship’s character will appear as fair and unblemished in the view of every individual in the British empire, as it now does in the eyes of the electors of Westminster.

I have the honour to be, my Lord,

Your Lordship’s most faithful and obedient servant,

Samuel Brooks, Chairman.

To Lord Cochrane.

King’s Bench, July 18th, 1814.

Sir,—Amongst all the occurrences of my life, I can call to memory no one which has produced so great a degree of exultation in my breast as this, which, through a channel which I so highly esteem, has been communicated to me, that, after all the machinations of corruption (bringing into play her 451choicest agents) have been able to effect against me, the citizens of Westminster have, with unanimous voice, pronounced me worthy of continuing to be one of their representatives in Parliament. Merely to be a member of the House of Commons (as now made up) is something too meagre to be a gratification to me; but when I reflect on that love of country, that devotion to freedom, that soundness of judgment, that unshaken adherence to truth and justice which have invariably marked the proceedings of the citizens of Westminster, and when I further reflect that it is of Sir Frances Burdett whom they have now, for the third time, made me the colleague, how am I to express, on the one hand, my gratitude towards them, and, on the other, the contempt which I feel for all the distinctions of birth, and for all the wealth, and all the decorations which ministers and kings have it, under the present system, in their power to bestow. With regard to the case, the agitation of which has been the cause of this, to me, most gratifying result, I am in no apprehension as to the opinions and feelings of the world, and especially of the people of England, who, though they may be occasionally misled, are never deliberately cruel or unjust. Only let it be said of me:—the Stock-Exchange have accused; Lord Ellenborough has charged for guilty; the Special Jury have found that guilt; the Court have sentenced to the pillory; the House of Commons have expelled; and the Citizens of Westminster HAVE RE-ELECTED. Only let this be the record placed against my name, and I shall be proud to stand in the Calendar of Criminals all the days of my life. In requesting you, sir, to convey these my sentiments to my constituents at large, I cannot refrain from begging you, and the other gentlemen of the committee, to accept my particular and unfeigned thanks.

I am, Sir, your most obedient, humble servant,

Cochrane.

To Samuel Brooks, Esq., Chairman of the Committee

of the Electors of Westminster.

452

APPENDIX XIII.

TO THE ELECTORS OF WESTMINSTER.

King’s Bench, Aug. 10th, 1814.

Gentlemen,—It is fresh in your recollection that when Lord Ebrington, contrary to my opinion, which was conveyed by letter to his Lordship, and at my request read by him to the House, made his motion for a remission of that part of the sentence which was to have been executed this day, Lord Castlereagh was empowered to state that the Prince Regent had already done that which it was the object of Lord Ebrington’s motion to effect. You will also remember that Lord Castlereagh, instead of immediately making his communication, and preventing an unnecessary, and consequently improper discussion, withheld it from the House for a considerable time, and thus afforded the Attorney and Solicitor-General and himself an opportunity of making a new and violent assault upon my character and conduct. Although many of their arguments had been previously refuted, and others were well answered at the time, yet it was impossible for those honourable Members who entertained a favourable opinion of me to answer every accusation which the Solicitor-General and others brought forward by surprise. It remains, therefore, for me to offer some observations in my own defence, in which my reason will appear for having suffered some delay to occur in the execution of this important duty.

In the course of the Solicitor-General’s speech he asserted that, in my defence, I had mis-stated the circumstances of the transaction, and had charged my solicitors with a gross dereliction of duty. I shall show that I have neither mis-stated circumstances nor made any unfounded accusation. He further asserted that he would take upon himself to say that the brief had been drawn up from my own instructions. The fact is, I have never denied that I gave instructions for 453the brief. It is true, however, that I gave no specific instructions to counsel, and attended no consultation; but it is obvious that without some instructions or some information from me to my solicitors there could have been no brief at all. My solicitors themselves applied to me for written instructions, and I, of course, furnished them with such particulars as occurred to me on the subject, which are written on one sheet of paper, and might have been written on one page. This paper is indorsed by my solicitors, “Lord Cochrane’s Minutes of Case,” and may be seen in my possession.^[119]

I apprehend that it was the duty of my solicitors to have sent me a copy of the brief, which, however, they did not; and I repeat that, previous to the trial, I never read it. It appears that they particularly called my attention to an unimportant circumstance which they had inserted in the brief, or the examinations attached, in consequence of an erroneous communication from my servant, who had confounded the circumstances of two different occurrences.^[120] This was the “one particular” which the Solicitor-General says that I myself corrected. I admitted that this error was expunged by my authority, and opposite the four lines which contained it, is written, “Read this to Lord Cochrane,” which I think is an argument that the greater part of the 454brief was not read to me; particularly as there are twelve lines expunged in another place, opposite which my name does not appear. My solicitors, however, assert, that though I did not read the brief myself, they read the greater part of it to me; and on their assertion I will admit that they did so, though I have no recollection of the fact. But if it could be shown that they drew my attention to every line of the brief, except only to that one most important point, the description of De Berenger’s dress, which immediately follows the four lines expunged, I still think that they were guilty of very reprehensible negligence. In my affidavit, which was before them, and was introduced into the brief, the coat worn by De Berenger is sworn to have been green; and in the examinations attached to the brief it is stated to have been red. It is impossible that this most important difference could have escaped their observation, and yet it is true that they never called my attention to it. I may affirm, without fear of being again contradicted, that I did not know that the dress of De Berenger, which I had sworn to be green, was in any part of the brief, much less in the examinations of my servants, described to be red; because it is impossible, unless I had been absolutely insane, that I should not only have been satisfied with a brief which authorised my counsel to contradict my own affidavit, but have been anxious to send my servants into court to give evidence against me.

If my solicitors actually read this part of the brief to me, it was obvious that I was not giving that attention which a man conscious of guilt naturally would have given. The word “RED,” if I had heard it, must have instantly excited my particular notice. But “if the difference between red and green escaped my observation,” what did my solicitors “think”^[121] of it? My accusers chiefly depended for my conviction 455on proving that De Berenger appeared before me in the red coat in which he committed the fraud. Is it possible that one of my solicitors should have read it to me and not have said, “You observe, Lord Cochrane, that this is contradictory to your affidavit?” To have read it to me without a pause, and have suffered it to pass without observation, is, I think, as negligent as not to have read it at all; and is wholly irreconcileable with the assertion of Mr. Abercrombie, that both parts of the brief were read over to me with the utmost care.

If, in my defence in the House of Commons, I did not state the manner in which I apprehend the difference between the brief and the affidavit originated, it was because I could not have stated it without throwing the more blame on my solicitors than I felt inclined to do. I have been challenged by the Attorney-General to unseal the lips of my solicitors and counsel. My solicitors, however, did not wait for me to unseal their lips, as is evident by what is called the counter-statement, with which they thought proper to furnish Mr. Abercrombie and others; and I think it rather unreasonable to require me to unseal the lips of my counsel to qualify them to give evidence against me, when I could not succeed in unsealing their lips on the trial to speak one word in my behalf. My own counsel, Mr. Topping and Mr. Scarlett, whom I fully expected would have advocated my cause, never spoke in my defence. In saying this, however, I cast no blame on those gentlemen, because I have no doubt that, under the circumstances then known to them, they acted as they thought best. Neither do I mean to blame Mr. Serjeant Best (the counsel for Mr. Johnstone), who, contrary to my expectation and direction, defended my cause in conjunction with that of his own client. He made as able a speech as any advocate could have done, with the information he possessed, and under his then circumstances; but he intimated at the time, and afterwards authorised me to assert, that he was not able to do justice to the cause; and it is a just ground of complaint, 456that after Mr. Serjeant Best had been exhausted by fifteen hours’ close attention and confinement, he was not allowed a few hours to recover himself and prepare for the defence.

To return: I do, however, accept the daring of the Attorney-General, and freely release my solicitors and counsel from every obligation of secresy.^[122] I might perhaps have done this sooner, but the delay has not been occasioned by any doubt in my mind as to the propriety of the step, or fear of the consequences. I thought, however, after the statement which has been circulated by my solicitors, that it was my duty, in the first place, to put to them certain questions, which I was not aware would have occasioned much delay; but after a lapse of nearly a fortnight, they wrote to inform me, that they thought it would be improper to answer those questions. I now lay them before the public.

I particularly authorise the counsel employed for the defence, to state their reasons for determining to defend me conjointly with Mr. Johnstone, contrary to the opinion of Mr. Adam expressed on the 6th of May, contrary to their own opinion expressed on the 24th of May, and contrary to my opinion and direction expressed on the 29th of May; and I also particularly authorise them to assign the reason for their opinion, that no witnesses ought to be examined on my part^[123]; and especially their reasons for not examining my 457servants on the subject of De Berenger’s dress, notwithstanding my earnest desire to have them examined. I am also willing, nay, I am anxious, that Mr. Serjeant Best should state, whether, when he admitted that the coat was red, and not green, he did not imagine that I had sworn falsely by design? I know that in his speech he attributed my description of the coat to error only, but I am anxious to know whether he did so from his feelings as a man or his sense of duty as an advocate? Until I am better informed, I shall incline to the opinion that he was actuated by the latter feeling only; because, if he really imagined that he had to defend an innocent man, I do think that he would not, without previously communicating with me on the subject, have had recourse to the dangerous expedient of admitting that to be red which I have sworn to be green, however embarrassed he might have been by the confusion of his brief, or exhausted by the fatigue and long confinement which he had undergone.