uc-nrlf B M Om M37 THE GUILT OF LORD COCHRANE IN 1814 i\. THE GUILT OF LORD COCHRANE IN 1814 A CKITICISM BY THE EIGHT HON. LORD ELLENBOROUGH LONDON SMITH, ELDER & CO. 15 WATERLOO PLACE 1914 [All rights roserveri -s ^ =5 v^ • « • PREFACE This book has been written chiefly for the purpose of refuting the attacks made on my grandfather, Lord Chief Justice Ellenborough. In 1860 a book appeared called the ' Autobiography of a Seaman ' (Lord Dundonald, better known by the name of Lord Cochrane). It contained most unjustif.able attacks, not only on the honour of Lord Ellenborough, but on the honour of many other persons, including a number of naval officers. In consequence of this, besides dealing with Lord Cochrane's trial before Lord Ellenborough, I have given a sketch of some portions of his naval career, including the operations at Aix Eoads in 1809. Wherever I have been able to find sufficient contempor- ary evidence, I have refuted Lord Cochrane's accusations. In 1890 the 'Autobiography of a Seaman' was re- published, with some alterations, in a one-volume edition by his grandson, Lieut. -General the Earl of Dundonald, K.C.B. In it he repeated nearly all the attacks made upon Lord Ellenborough, the Judge who presided at the trial of Lord Cochrane for fraud. Had he ever made himself acquainted with the history of his family, or read the evidence and letters of George Earp and William Jackson. I do not think that he would have reprinted that book. At page 281 of the ' Trial of Lord Cochrane before Lord Ellenborough,' Mr. Atlay wrote : ' It is with very great reluctance that the descendants of Lord Ellenborough have revived the details of a story which for the sake of Lord Cochrane's descendants they would have willingly left in oblivion, but so long as the " Lives of the Chief Justices " (by Lord Campbell) stand unamended, so long as the 304451 vi PREFACE misstatements in the " Autobiography of a Seaman " and its sequels, are not acknowledged and disavowed, they have no other course.' Lord Cochrane's grandson has never publicly withdrawn this book. But, unless he has adopted the policy of the ostrich, he must by this time have made himself acquainted with the tainted nature of its origin. I regret if anything that I have written on the subject gives pain to any of Lord Cochrane's descendants. This pubhcation has, how- ever, been rendered necessary by the conduct of the head of their family, who, in 1877 and in 1890, was so * unwise as to revive a question which in the interests of Lord Dundonald's reputation had better been buried in oblivion.' Thomas Lord Cochrane, eldest son of the ninth Earl of Dundonald, was born in 1775. In February 1814 he was a captain in the navy, a Knight of the Bath, and in command of H.M.S. Tonnant. He had earned a well- deserved reputa- tion as a most skilful and successful seaman. Unfortunately some malignant fairy cursed him at his birth, with an utter disregard for truth and with an unwholesome greed for gold. Throughout the whole of his life these two conspicuous faults were the cause of misfortunes which marred his successes — misfortunes which would have been avoided by men of one-tenth of his capacity. His love of excitement and his love of money led him to gamble on the Stock Exchange. In 1814 he and his con- federates embarked in a plot to make the funds rise by causing a false report to be spread of the death of Napoleon, and of the entry of the allied forces into Paris. He was tried for fraud and convicted. The 'Auto- biography of a Seaman ' (1860, 1861, and 1862) attributes his conviction to the partiality of Lord Chief Justice Ellenborough, who, it alleges, was then a Cabinet Minister, and who wished to crush a political opponent. The Cabinet to which Lord Ellenborough had belonged lasted from February 1806 to March 1807. Lord Ellenborough had frequently opposed the Government that was in power in 1814, and was considered by the Attorney- General to be in opposition. Again, the Autobiographies of 1860, PREFACE Vli 1861, 1862, and 1890 accuse Lord Ellenborough of refusing to hear Lord Cochrane when he appeared before him with seven affidavits made by respectable Westminster tradesmen. These affidavits were not sworn to until several days after Lord Cochrane's last appearance in Court. It is on fables such as these that the popular behefs in the innocence of Lord Cochrane, and in the injustice of Lord Ellenborough, have been founded. The sentence of the Court was that Lord Cochrane should pay to the King a tine of £1,000, that he was to be imprisoned in the King's Bench for twelve months, and that he was to be set in the pillory opposite the Stock Exchange for one hour. This sentence was pronounced by Sir Simon Le Blanc, with the concurrence of the other three Judges of the King's Bench. The other Judges were Mr. Justice Bailey, Mr. Justice Dampier, and Lord Chief Justice Ellenborough. But then, what was Lord Cochrane's crime ? He was on full pay in command of a line-of-battle ship, he had used his nautical knowledge in attempting to deceive his own Admiralty with false news in time of war. The fourth count of the indictment was that he and his fellow-conspirators had sent a letter to ' Thomas Foley then and there Commander-in-Chief of His Majesty's ships and vessels employed on the Downs Station with a wicked intention to impose and deceive the said Thomas Foley and to induce and cause the said Thomas Foley to communicate the false matters contained in the said last mentioned false and counterfeit letter to the said Com- missioners for executing the office of Lord High Admiral.' Admiral Sir Thomas Foley had been flag-captain to Admiral Thompson at the Battle of Cape St. Vincent ; had led the van of the British fleet in the Goliath at the Battle of the Nile, and had beenNelson's flag-captainat Copenhagen. One would have thought that a captain in the navy would have had some respect for an officer with such a record, but Lord Cochrane and his confederates had no scruples about trying to deceive him for their own purposes of private gain. Lord Cocinrane had also added to his crimes vm PREFACE by swearing to false affidavits, and had incited his servants to do the same. We were then at war with both Prance and the United States. Had the Admiralty or the War Office beheved the story, even if only for an hour, ships laden with troops and stores intended to support Wellington in the South of France might have been diverted to other stations. To deceive a few shareholders or fund-holders by false telegrams, that affect them only, is, in my opinion, a peccadillo compared with the crime of attempting to deceive a nation that is fighting for its hfe. Imagine what might have happened had false news reached the Admiralty when Nelson was chasing Villeneuve. What would have been the fate of a captain of a Eussian or of a Japanese battleship convicted of such a crime during the late war ? The Sohcitor-General, Sir Samuel Shepherd, said in the House of Commons : ' To deceive an Admiral in His Majesty's Navy— that, too, at a period when the fate of Europe hung in the balance, when any false statement, particularly of the nature alluded to, might have influenced some brave man's rashness, or some coward's fears, as to defeat the events which have since happily occurred. The events referred to in this speech were the occupation of Paris by the Alhes and the conclusion of peace. Unfortunately our knowledge of Lord Cochrane's history and achievements has hitherto reached us mainly through his own writings, or what have hitherto passed as such. No man ever blew his own trumpet with greater persistency, or \vith greater success. During his lifetime Lord Cochrane played many practical jokes. His greatest and most successful joke was, in my opinion, that of putting his name to the ' Autobiography of a Seaman.' At times I am inclined to think that the book was written chiefly for the cynical purpose of proving that there are no limits to human credulity. At the same time, I wish it to be distinctly understood that I do not desire to detract from the credit that is really due to him. He deserves all the praise that has been PREFACE ix given to him for the capture of the Gamo. I look upon the capture of the Esmeralda as one of the finest achievements of that class that was ever planned and successfully carried out, second only to the cutting out of the Herniione by Captain Hamilton in 1799, But in all the histories of his other exploits, the profits of Mr. Earp, the real writer of the Autobiography, must be taken into consideration. The so-called • Autobiography of a Seaman ' has been a fraud on the boyhood of England for over fifty years. It is not an autobiography, it was not even written by a seaman. It was written as a pecuniary speculation by a Mr. George Earp, with the object of creating a state of public opinion favourable to certain money claims, of which, if successful, Mr. Earp was to receive ten per cent. The same writer had previously assisted Lord Cochrane in the preparation of a book called ' A Narrative of Services in Chili and Peru,' which was written with a similar object. This last book attacked, among others, Zenteno, who had been Minister of Marine in Chih in 1818. Zenteno's son replied to it in a pamphlet called 'Refutacion de las Acusaciones de Lord Cochrane,' in which he shows it to be as untruthful as I shall prove the Autobiography to be. In writing the books that I have referred to, Mr. Earp was assisted by a certain Wilham Jackson, who became Lord Cochrane's secretary in 1814, shortly after the fraud but before the trial. Lord Cochrane had employed him in writing pamphlets and in drawing up charges attacking Lord Ellenborough. Money was eventually obtained both from the British and Brazilian Governments. Jackson had followed Lord Cochrane to Brazil. In consequence of this, he also had claims on the Brazilian Government. The ' Narrative of Services in Chih and Peru ' quotes him largely. As Lord Dundonald grew older, his memory began to fail, and Mr. Earp relied more and more on Jackson for his facts. Lord Dundonald left £100 in his -will to this ' steady friend and former secretary.' He also left ten per cent, of what- ever money could be obtained from the British or foreign Governments to Mr. Earp. h X PREFACE When Lord Dundonald died the succession to the title was disputed. There were two claimants. The chief point in dispute was whether or not a Scotch marriage had taken place in 1812. All parties admitted an Enghsh marriage in 1818. In 1863 the Lords Committee for Privileges decided in favour of the eleventh Earl. At this investigation Mr. Earp was called as a witness to prove a statement made in the Autobiography concerning the marriage of Lord Cochrane's uncle, the Hon. Basil Cochrane. This statement was shown to be untrue. In cross-examination Mr. Earp gave an account of the manner in which the Autobiography had been compiled. Mr. Earp's correspondence with Mr. W. Jackson was printed with the ' Jackson ' evidence which was taken later. This cross- examination and part of the correspondence will be found at page 253 of this book. On the death of his employer, William Jackson endeavoured to blackmail the eleventh Earl as to what evidence he should give. Failing in this, he took money from the solicitors of the other claimant. He committed perjury by denying that he had done so. This he con- tinued to do until confronted by a memorandum in his own handwriting. Lady Dundonald, when on oath, said of him : ' I have always despised the man, and look upon him as the greatest enemy my husband ever had in life, and the ruin to his purse and character.' . . . ' Alas, Lord Cochrane had more confidence in him that he deserved.' Yet this creature's writings and the information he gave to Mr. Earp, are the foundation stones of the popular belief in Lord Ellenborough's injustice and in Lord Cochrane's innocence. Lord Cochrane and his secretary have, more- over, accused judges, juries, witnesses, barristers, soHcitors, and a large number of naval officers of dishonourable conduct. It has, therefore, become necessary to show what character for truthfulness such accusers deserve. In 1816 the House of Commons repudiated Lord Cochrane's charges against Lord Ellenborough by a majority of 89 to 0. William Jackson tells us that he drew up those PREFACE xi charges. Since then no Jait nouveau, no fresh evidence has been discovered in favour of Lord Cochrane. On the contrary, the disclosures of his sohcitors in 1861 have considerably increased the evidence of his guilt. The well-known Hterary talent of the Hon. J. W. Fortescue has produced a far more readable book than either of the above-mentioned biographies. He appears to have read some of the debates in which Lord Cochrane took part in the House of Commons, and has, in consequence, formed an independent judgment on the political portion of Lord Cochrane's career. He writes : ' One would be glad, did not veracity compel some mention thereof, to cut the whole of Cochrane's parliamentary career out of his biography.' In other respects his book is a well- written condensation of the fables contained in the Earp- Jackson-Dundonald literature. Among other things Mr. Fortescue has followed the Autobiography in saying that Lord Ellenborough was a Cabinet Minister at the time of the trial, and has also stated that the back pay, suspended during Lord Cochrane's disgrace, was restored to his grandson seventeen years after his death. Both these statements are incorrect. In 1877 the then Lord Cochrane (now Lieut.-General the Earl of Dundonald, K.C.B.) appeared in a Committee Room of the House of Commons with a petition to the Queen in one hand and the ' Autobiography of a Seaman ' in the other ; and I have no doubt that he honestly believed their contents. On April 30, 1816, as I have already said,, two years after the trial, when there had been ample time to consider the whole matter, the House of Commons, by a majority of 89 to 0, refused to consider Lord Cochrane's charges against Lord Ellenborough. Lord Ellenborough's descendants thought this conclusive, and never afterwards troubled themselves about Cochrane's affairs, and none of them knew anything about them in 1877. Now, badly as his ancestor behaved to the many persons whom he hbelled in his lifetime, I think that he treated his innocent grandson far worse than any of the people 62 Xii PREFACE whom he denounced, when he left liim nine-tenths of his claims on the British Government, with the Earp-Jackson- Dundonald hterature to support them. It was a most cruel legacy. The petition contained strictures on the conduct of the Chief Justice who tried the case. In the chapter devoted to tliis petition I have given an account of the steps taken in consequence by my father, the Hon. Henry Spencer Law, then the eldest surviving son of the Judge. I have printed his correspondence with Sir Eobert Anstruther, the Chairman of the Committee, and with Sir Stafford Northcote, the Chan- cellor of the Exchequer, as I think that in the interests of historical truth the exact circumstances connected wdth this grant should be more widely knowni. Unfortunately, when Mr. Atlay's book was in preparation, this corre- spondence could not be found. The petition was for back pay. In consequence of Mr. H. S. Law's proceedings, back pay was not granted. £5,000, in respect of the distinguished services of his grand- father, was granted. In his letters to Sir Eobert Anstruther and Sir Stafford Northcote, Mr. H. S. Law had stated that he had no objection to a grant of this description. I have printed in full the grandson's answers to the questions put to him with reference to his grandfather's will and the part of the will relating to this legacy in the appendix. In the debate that took place on April 10, 1877, on the motion for a Select Committee, the supporters of the petition appear to have relied chiefly on the ' Autobiography of a Seaman ' for their facts, and to have made mistakes in conse- quence. But Mr. Lyon Playfair (afterwards Lord Playfair) went still further. He quoted a clause from a document which he described as being the autograph vnW of the late Earl of Dundonald, leaving his claims on the British Government to his grandson. I do not know who supplied him with this will. Still, I do not think that he would have wilfully deceived the House of Commons, hut the iv^ill that he quoted from ivas not the one that iras proved at Somerset House. The evidence given by the petitioner, and this substitution of an unproved will for a real one, PREFACE Xiii kept the public in ignorance of the Earp clauses and of the Earp share in the Autobiography. The petitioner told the Select Committee that his grandfather had left him ' all the moneys ' that might be obtained from the British Government, and he also said that ' he had the will with him.' If so, it seems a pity that he did not consult it. Had he done so, he would doubtless have told the Committee that he was only to receive nine-tenths of these moneys and that the other tenth was to go to Mr. Earp. The question would then have entered into a fresh phase. Had the Select Committee and the public been fully informed, Mr. H. S. Law or some other members of his family would certainly have drawn attention to the scandal of public money being granted to Mr. Earp for ' his distinguished services in composing the " Autobiography of a Seaman." ' This would have given rise to a further discussion, which would have lessened the chances of a vote being obtained. If granted, it would probably have been so worded as to prevent any of the money reaching Mr. Earp or his representatives. No sooner had the substituted will done its work in the House of Commons than the representatives of Mr. Earp made their appearance in the Law Courts with the real will in their hands. After hearing their arguments. Vice- Smiih v. Chancellor MaUns decided in their favour and against Lord r^e,Timel', Cochrane. f^f^ *• There is in existence a popular behef that Lord Cochrane's case was re-considered or re-investigated at some period or another, and that he was proved to be innocent. I have been utterly unable to find out when, where, or by whom this investigation was conducted. It certainly did not take place prior to 1847, for in that year he complained ' that he • obscr- had a claim to the revisal of the sentence pronounced Naval against him in the year 1814 and to the removal of the ^^l"?- remaining consequences of such verdict and sentence.' p "3. Nor is it hkely to have occurred in the interval between 1847 and 1860, for in the latter year (the year of his Auto- ^ death) the Autobiography complains in itahcs ' that unjvsi ^i^\^ ^' xiv PREFACE •public sentence has never been puhlicly reversed )ior the equally unjust fine inflicted on me remitted.' It certainly did not take place in 1877, for the Select Comniittee did not ask a question concerning the trial, and Lord Ellenborough's name was never mentioned in the evidence before them. The only witnesses examined were the petitioner and Mr. Bramwell, of the War Office, who produced papers relating to the cases of Sir Robert Wilson and Major Bristow, who had been restored to their rank after dismissal from the army. Many years ago a book was published, which attracted a good deal of notice at the time, called ' Common or Popular Errors.' Should a fresh edition ever be issued and brought up to date, the belief that Lord Cochrane was declared innocent after investigation, and that his back pay was in consequence restored to him, ought to be among the most prominent of them. I have been warned by a friend that the public do not care for adverse evidence, when once its mind has been made up by the exercise of the emotional faculties, and that this book will, in consequence, be unpopular ; and, moreover, that I shall share its unpopularity. In the interests of my grand- father's reputation, and of historical truth, I deem it my duty to run these risks. If history is to be written at all, it should be written truthfully. If that is impracticable, then as truthfull}^ as possible, and not in the style of the ' Dundonald ' literature. I have given my authorities for all important statements to a greater degree than has been done in most historical works. I have tried to be as accurate as possible. This is more than can be said of any of the writers who believe in Lord Cochrane's innocence. All existing biographies of Lord Chief Justice Ellen- borough, with the exception of a short sketch of the earlier portion of his hfe by an unknown writer in ' Public Charac- ters,' which appeared in the year 1802, have been written by his political opponents. ' PubUc Characters,' I may add, also contains a laudatory account of both Lord Cochrane and of his uncle, the Hon. Cochrane Johnstone. Lord Ellenborough took but little part in poUtics, and never entered or tried to enter the House of Commons until he was made Attorney- PREFACE x\ General. He was, however, a strong supporter of the monarchical principle of government, as being best suited to Great Britain at a time when it had been greatly weakened by the French Revolution and by the unpopularity of the Prince Eegent. In his opinion the Prince Eegent had to be supported in hopes of better times. Those better times have since come. From the time of the accession of Queen Victoria, the monarchical principle has continued to strike fresh roots into the hearts of the people ; and w^e, who have seen Jubilees and Coronations, seen a King lead in a Derby winner, find it difficult to understand either the feehuga of those who dined on a calf's head to celebrate the anni- versary of the decapitation of Charles I, or-of the crowd who spat upon old Queen Charlotte, and constantly hissed the representative of monarchy. With mobs of that description Lord Ellenborough had no sympathy, and while there were laws in England that could prevent such people from obtaining the mastery, whether by means of riots or other violent action, he was determined to administer them fearlessly. Hence his unpopularity with the Hones, Cobbetts, and other revolu- tionists, and also with those politicians who, while disdaining such allies, did not scruple to make use of them. As the whole of this book was printed before the war, now raging, broke out, I felt that publication should not be delayed because, at the age of seventy-three, I might not, in the event of delay, ever again have the opportunity of vindicating the memory of my grandfather. ELLENBOROUGH. WiNDLESHAM COUKT, Surrey. August 1914. CONTENTS PART I INCIDENTS OF LOED COCHEANE'S CAEEEE IN THE ENGLISH NAVY CHAPTER I LORD COCHRANE's EARLY APPOINTMENTS PAGES Lord Coclirane as a midshipman — In command of the Speedy — His prize-money in the Pallas ....... 1-3 CHAPTER 11 THREE VESSELS OFF THE GIRONDE Cutting out of Tapageuse — Contradictory accounts of the size of the three vessels engaged by Pallas off the Gironde — The Honiton Election — As described in the ' Autobiography of a Seaman ' — As described by Lord Cochrane in Parliament in 1817 — Lord St. Vincent and Naval Reform — Impeachment of Lord Melville — Lord Cochrane's views on prize-money — Lord Cochrane and Mr. Croker 4-17 CHAPTER III COLLINGWOOD AND LORD COCHRANE Lord Cochrane in the Impirieuse — In the Adriatic — On the coast of Spain 18-19 CHAPTER IV AIX ROADS Lord Gambler — Chart said by Lord Cochrane to be forged with the connivance of the French Government — Attack by fire-ships — Mediator, Captain Wooldridge, breaks the boom — The explosion vessels kill men on board Caesar's fire-ship — The three contra- dictory logs of the Impirieuse — Four British line-of-battlo ships and two frigates take the ground — Lord Cochrane's attack on Lord Gambler — Aix Roads fables ..... 20-37 xviii CONTENTS CHAPTER V TRIAL OF LORD GAMBIER PAGES Two of the logs of the Impirieuse datly contradict one another — Lord Cochrane makes no complaint against Lord Gambler until his return to England — The fire-ships — A Mariner of England 38-48 PART II THE STOCK EXCHANGE FEAUD OF 1814 CHAPTER I POLITICS AND FINANCE Lord Cochrane refuses to rejoin the Imperieuse — The Hon. Cochrane Johnstone — Lord Cochrane and Mr. Butt — Gambling on the Stock Exchange — De Berenger ..... 49-52 CHAPTER II CONSPIRACY TO RIG THE MARKETS De Berenger's false report of the death and defeat of Napoleon — The Times recommends whipping post or pillory as suitable punish- ment for the perpetrators of the fraud .... 53-57 CHAPTER III ACTION OF THE STOCK EXCHANGE A Committee of the Stock Exchange appointed to inquire — Suspicion falls on the Hon. Cochrane Johnstone, Mr. R. G. Butt, and Lord Cochrane — Warrant out against De Berenger before Lord Cochrane mentions his name — Mr. Cobbett disapproves of the action of the Committee ...... 58-61 CHAPTER IV LORD COCHRANE's FIRST AFFIDAVIT Lord Cochrane says he left the letter of the First Lord of the Admiralty unopened — Isaac Davis' recognition of De Berenger — Mr. William Jackson — His conduct and character . . . 62-70 CONTENTS xix CHAPTER V THE AFFIDAVITS OP LORD COCHRANE's SERVANTS PAGES Lord Cochrane and Mr. Jolin Wilson Crokor — Lord Cochrane prepares his servants' afiBdavits ....... 71-75 CHAPTER VI THE PAMPHLET CALLED ' CALUMNIOUS ASPERSIONS ' Lord Cochrane's admission that he had the pamphlet called ' Calum- nious Aspersions ' published — Thirteen Voluntary Affidavits — Arrest of De Berenger ....... 7G-8U CHAPTER VII LORD COCHRANE AND HIS SOLICITORS Lord Cochrane's instructions to his solicitors — The question of joint ^defence — Lord Cochrane has never printed his Bill of Costs . 81-87 CHAPTER VIII LORD CHIEF JUSTICE ELLENBOROUGH The Defence of Warren Hastings — Lord Ellenborough took no part in politics until he became Attorney-General — Opposed the Govern- ment for seizing the Danish fleet in 1807 — Voted against the Government on the impeachment of Lord Melville — The Cabinet of ' All the Talents ' — Lord Ellenborough not out of touch with the Navy { 88-92 CHAPTER IX THE TRIAL Mr, Gurney's speech — The Voluntary Affidavits — Witnesses for the prosecution — Crane's evidence — Ringing the changes with the bank-notes traced to De Berenger — De Bcrongcr's Counsel warn him of the danger of the pillory ..... 93-1 1 1 CHAPTER X THE ADJOURNMENT Long sittings the custom of the time— Alleged fatigue of Counsel- Duties of the official witnesses during the war with America — Lord Yarmouth's pecuUar position . .... 11 .--11-1 XX CONTENTS CHAPTER XI SERJEANT best's SPEECH PAGBS Serjeant* Best's skilful speech — He mixes up the notes and makes it appear that he has accounted for both sums of £200 — His speech shows no signs of fatigue ...... 122-125 CHAPTER XII THE TRIAL — SECOND DAY Absence of Davis, who knew De Berenger — Tahoui'din's evidence — Lord Yarmouth's evidence — Gurney's reply — De Berenger's alibi — The Chief Justice's charge to the jury — The verdict . 126-133 CHAPTER XIII AFTER THE TRIAL Lord Cochran e's appeal heard by the whole Court on June 20 — Lord Cochrane's affidavit of June 14 — Isaac Davis' absence from trial — The law as to new trials — The attempt to deceive Admiral Foley forms the fourth coimt of the indictment — Sir Simon Le Blanc pronounces the sentence of the Court . . 134-146 CHAPTER XIV DEBATES IN PARLIAMENT, 1814 Lord Cochrane's speech in the House of Commons, July 5, 1814 — Westminster Election — Lord Brougham's letter to Lord Grey — Lord Cochrane's instructions to his solicitors . . . 147-161 CHAPTER XV QUARREL WITH SOLICITORS Affidavits of Westminster tradesmen — The Law Magazine — ^Tho ]5amphlet called ' Lord Cochrane's Letter to EUenborough ' — Lord Cochrane's payments to De Berenger — Lord Cochrane's escape from prison ......... 162-170 CHAPTER XVI THE NOBLE STOCKJOBBER Pamphlet by De Berenger — His plan — Expense of it found by Lord Cochrane, Mr. Butt, and Mr. Cochrane Johnstone — The letter to Admiral Foley — His interview with Lord Cochrane in Green Street — Meets him again at an evening party on the same day — Starts for Holland — Lord Cochrane produces his affidavit of March 11, believing that De Berenger M'as then in Holland. 171-179 CONTENTS xxi CHAPTER XVII LORD COCHRANE'S CHARGES AGAINST LORD ELLENBOROUGH IN 1816 PAOEB William Jackson says ho drew up the thirteen charges — Speech of Lord Cochrane — Speech of the Hon. Edward Law — Other speeches — House of Commons rejects the charges by a majority of 89 to 0, and orders the charges to bo expunged . . . 180-188 CHAPTER XVIII Davidson's trial Inaccurate account of the trial in the 1830 pamphlet and Lord Cochrane' s Memorial in 1847 — ]\Ir. Gurney's speech — Mr. Justice Abbott's summing-up 180-192 CHAPTER XIX COCHRANE's trial for ESCAPE Reads from a written speech — His consummate acting — Calls no witnesses, and thus avoids giving the prosecution an opportunity of replying to attacks connected with his alleged ill-treatment in prison — Mr. Justice Burroughs, on summing up, says that he had detailed charges against the Marshal of the King's Bench which it was contrary to the principles of honour and of justice to have made — These charges practically repeated in his inscription on a £1,000 note exhibited at the Bank of England and the Royal United Service Institution — The Penny Subscription fable 193-196 CHAPTER XX THE TRIALS OF MR. R. G. BUTT {These Trials are not mentioned in {he Cochrane literature.) Mr. Butt's wild-goose chase after Cochrane Johnstone — Accuses Lord Ellenborough of pocketing his fine — Is prosecuted for libel — His list of witnesses— Absence of Lord Cochrane— Mr. Butt says had not subpoenaed him because he had promised on his honour to be in Court- Mr. Justice Abbott's summing-up— Mr. Butt is sentenced to six months' imprisonment for the first libol and three months for the second— Mr. Justice Bayley's remarks on the responsibility for the sentence passed on June 21, 1814 197-200 XXll CONTENTS PART III THE LAST OF THE BUCCANEERS CHAPTER I CHILI PAGES Lord Cochrane enters the Chilian service — Finds Chilians in command of the sea — San Martin's ' Acusaciones contra Lord Cochrane ' — Loid Cochran e's ' Vindicacion ' — Its numerous admissions — Failure of Lord Cochrane's rockets and explosion vessels — Lord Cochrane's quarrels with Zenteno, Minister of Marine — Piracy under the Chilian flag — Guise and Spry — Cutting out of Esmeralda — Money quarrels with San Martin — Lord Cochrane wanted dollars — San Martin wanted power — Lord Cochrane enters the Brazilian service ........ 201-217 CHAPTER n BRAZIL William Jackson's Journal — Lord Cochrane off Bahia — Lord Cochrane at Maranham — Lord Cochrane's inordinate claims — Millions of dollars as prize-money for captures afloat and on shore — Quarrels with Brazilian Prize Courts — Lord Cochrane goes to sea with the intention of returning to Rio — Stress of weather and shortness of provisions is said to have caused him to go to Portsmouth instead — He returns to England loaded with wealth — He enters the Greek service 218-224 CHAPTER HI Finlay's ' History of the Greek Revolution ' — He calls Lord Coch- rane's engagement to serve Greece the grandest job of the Phil- Hellenes — Lord Cochrane takes ten months to sail from Flushing to Greece — His attacks on Mr. Galloway refuted by Mr. Galloway's son — Hoists his flag in the Hellas, a large 64-gun frigate — Lord Cochrane's interference the cause of the defeat of the Greek Army near Athens — He owes his own safety to swim- ming and his great height — Success of Greek fire-ships before Lord Cochrane's arrival — The Hellas captures a Turkish corvette — He finds Greek seamen more difficult to discipline than the Chilians 22.5-231 PART IV LORD COCHRANE RE-INSTATED IN THE NAVY An anonymous pamphlet called ' Review of the Case of Lord Coch- rane ' printed, not published, in 1830 — It sets up a case differing from that presented by his counsel at the trial and from that presented in the so-called ' Autobiography of a Seaman.' This CONTENTfi XXlll paoks pamphlet was forwarded to the King with a petition which was rejected — Lady Dundonald pleads her husband's cause with William IV, and succeeds in obtaining a free pardon and his restoration to the Navy List in 1832 — Enquiry would have been fatal to his claims — Lord Dundonald's ' Observations on Naval Affairs ' published in 1847 — Curious account of his alleged pecuniary losses due to the trial — Lord Dundonald's secret plans . 232-23 PAET V LORD CAMPBELL Lord Campbell contradicted in nearly every statement by the short- hand notes of the trial — Mixes up Lord Cochrane's uncles — Lord Ellenborough when sitting alone on circuits only once awarded the punishment of the pillory — Lord Ellenborough never doubted justice of the verdict — Lord Campbell's reputation would have stood higher if he had not written the lives of his contemporaries — Mr. McDonell, Mr. Mullinger, Mr. Christie, Lord St. Leonards, Sir Theodore Martin, all describe him as guilty of inexcusable inaccuracy — Lord Campbell's high praise of Lord Ellenborough contradicts other portions of his work . 239-248 PAET VI THE EARP-JACKSON-DUNDONALD LITERATURE CHAPTER I ' THE AUTOBIOGRAPHY OF A SEAMAN ' Written b}^ Mr. Earp, regardless of facts and dates, with the intention of supporting certain money claims — Ten per cent, of the money received for these claims was to be paid to Earp — Mr. Earp quotes whole pages from a journal kept by Mr. Jackson — Mr. Earp's evidence in 1862 before the Lords Committee for Privi- leges — Inaccurate account of Hon. Basil Cochrane's marriage — The Gambyriad — The correspondence between Earp and Jack- son — Jackson's attempt at blackmail — Receives a bribe of £20 to give evidence, which he denied until proved by his own hand- writing — The Jackson writings the foundation-stones of the belief in Lord Cochrane's innocence — Lord Cochrane's grandson in 1890 publishes a compressed edition of the ' Autobiography,' as inaccurate as the 1860 edition — The Law Magazine — Mr. Russell Gurney — Compressed, not verbatim, reports of trial in the Times — Crane and seven affidavits — These affidavits not in existence when Lord Cochrane appeared before Lord Ellen- borough — Crane was Lord Cochrane's best witness — The grand- son's inaccuracies — Lord Campbell's accounts of the Leigh Hunt, Watson, and Hone trials, all contradicted by the shorthand notes and by Hone — Hone's parodies of the Catechism, Lord's Prayer, and Ten Commandments — The Penny Subscription XXIV CONTENTS PAGES fable — Two thousand four hundred pence in a sovereign in 1814 — Dundonald accounts need auditing — Cabinet Minister fable — The eleventh Earl of Dundonald withdraws the Cabinet Minister fable in 1860 but reprints it in 1862 — Lord Ellenborough con- 6idered by Sir Vicary Gibbs to be in opposition in 1810 — Lord Fortescue'e inaccurate description of an after-dinner conversation — Opinions of Sir Fitzroy Kelly and Lord Halsbury — Lady Dun- donald's opinion of William Jackson .... 249-278 CHAPTER II PETITION TO PARLIAMENT, 1877 The grandson's petition — Accusing Lord Ellenborough — Exaggerated accounts of his grandfather's services — The secret plans published in 1908 — Attracted no notice — The petitioner attributes the verdict of guilty to the prejudice of the Chief Justice, yet he ' does not desire to recall the incidents of the trial, still less to scrutinise the evidence ' — Sir Robert Anstruther's speech — Based on the ' Autobiography ' — His extraordinary creduHty — Mr. Playfair quotes a passage said to be from a will of Lord Cochrane's— The real will is of a different date and differently worded — Hon. H. S. Law's letters to Sir Stafford Northcote — And to Sir Robert Anstruther 279-288 CHAPTER III I SELECT COMMITTEE, 1877 Its composition — Mr. Bramwell the only other witness besides the grandson — Not asked a single question connected with the trial — Lord EUenborough's name not mentioned in public by the Committee — The grandson omits all mention of Mr. Earp's 10 per cent, in giving his evidence — The House of Commons ought to have been told of it — Had he mentioned it, no money would have been granted — Mr. Playfair produces a letter from a lady with a veiled name — His recollection of this letter and of other matters in 1898 evidently inaccurate — Lord Hadding- ton's letter not found — The Select Committee's decision, by a majority of one — Back pay not granted, but £5,000 granted in respect of distinguished services — In writing to Sir Stafford North- cote, Mr. H. S. Law had objected to back pay, but not to a grant of money for distinguished services — Back pay not granted, stigma remains — Alleged losses by Lord Cochrane on account of the trial — Mr. Earp's representatives claim their lOper cent. — Vice-Chancellor makes decision in their favour . . 289-298 CONCLUSION 299-311 APPENDICES : I. Secret Pt>ans 313-314 II. Extracts from the Will of Abmiral the Earl of Dundonald ....... 315-316 Extracts from statements Sworn to by the Eleventh Earl of Dundonald on May 22, 1861 316 '*N'DEX . . 317-322 THE GUILT OF LORD COCHRANE m 1814 A CRITICISM PART I INCIDENTS OF LORD COCHRANE'S CAREER IN THE ENGLISH NAVY CHAPTEE I LORD COCHRANE's EARLY APPOINTMENTS Thomas, Lord Cochrane, eldest son of the 9th Earl of Dundonald, was born in December 1775. His father spent the greater portion of his life and money in working at patents, and inventions, (more or less connected with chemistry,) which ultimately caused his pecuniary ruin. He was unable to give his son more than six months' tuition at a suitable school ; for the rest Lord Cochrane was educated chiefly at home. It is possible that he did not lose much by this, and that he learnt more of what was afterwards likely to be of use to him in his father's laboratory, than he would have done had he studied dead languages at a public school. At the age of thirteen he received a commission in the 104th, though it does not appear that he ever actually did duty with that regiment. He preferred the naval service, and joined H.M.S. Hind in June 1793 at the age of seventeen S"-*..' '''}>t'sS (?1^ILT OF.WRD COCHRANE IN 1S14 and a half. His uncle Captain the Hon. Alexander Cochrane had foreseen that it was probable that his nephew would wish to change his profession, and had therefore considerately- entered him as part complement of the Vesuvius, Carolina, So'phie, and Hind, at a time when he still held a commission in the 104th Eegiment. • Autobio- In January 1795 he was appointed Acting Lieutenant ieaS 1 T • bier, pp. There was a tmrd log of the Impeneuse, the document that i3i-3. he had given to Lord Gambler as the ship's log when he left Basque Eoads. The log made up in London contained some additions to the second log, one of which was meant to inculpate Captain Eodd of the In clef atig able. All three logs are printed in the Appendix to the trial. Lord Cochrane accused the master's mate of the Beagle of having tampered with that ship's log. I shall give Lord Gambler's remarks on these logs in my account of the trial. It is, however, clear that Lord Cochrane did his best to p. 5. destroy the enemy's ships on that day and to induce Lord Gambler to send in the fleet. As the flood-tide came in, the French set to work and removed the two line-of-battle ships that had remained afloat, so they were no longer in a position to support the vessels that were aground. At about half-past twelve the Etiia bomb and gun-brigs Conflict, Insolent, and another gun-brig, passed the Im- yerieuse, which was still at anchor, and commenced the action. Nearly half an hour afterwards the Imperieiise weighed and followed them. An hour later two 74's, the Valiant and Revenge, were sent in to attack the ships on shore. They were accompanied by five frigates and seven smaller vessels. Lord Cochrane says that the pp. isi and Calcutta, a former East Indiaman, then a well-armed store- ^^' ship, struck to the Imperieuse alone — a statement which is contradicted by Captain Bligh of the Valiant, Captain Eodd of the Indefatigable, and Mr. Stokes of the Caledonia. Mr. Stokes said that he saw a shot from the Calcutta strike a boat astern of the Imperieuse, after the Aigle, Unicorn, and Emerald had opened tire on her. Captain Newcomb of the p. 197. Beagle said that his second lieutenant, who had been away sounding, noticing that the Calcutta was abandoned by her crew, boarded her at the same time as a boat from the Imperieuse. The Aquilon and Varsovie, 74's, surrendered, and the men who had remained on board of them were taken prisoners. The Tonnerre was abandoned and set fire p. io7. to by the French. The British burnt their prizes also. 80 THE OUILT OF LORD COCHRANE IN 1814 As the tide fell the British drew off, the Bevenge, Valiant, and the Irti'perieuse all got on shore, the latter striking heavily. Had a breeze sprung up in the wrong direction they would probably have shared the fate of the Jean Bart. ' Trial of Captain Bligh in his evidence said that the Valiant was in bier,' p*™' a very perilous situation, nothing but the wind shifting ^^^- and blowing directly out could have saved her from being wrecked.' During the night the line-of-battle ships Caesar and Theseus were sent in to support the inshore squadron. On the morning of the 13th, Admiral Stopford, who was on board the Caesar which had been on shore for three hours, ordered the line-of-battle ships out on his own responsi- bility. The Iniferieiise, Pallas, Etna bomb, and some other vessels remained in Aix Eoads for some time longer. The Etna continued to throw shells until her thirteen-inch mortar had split, and her ten-inch shells had been expended. Mr. Congreve, too, remained on board the Whiting schooner to see his newlj^ invented rockets thrown, but nothing p. 129. serious was attempted. On the 14th the Iniferieuse was recalled to Basque Eoads, and Lord Cochrane's place as senior officer of the inshore squadron was taken by Captain p. 11. Wolfe of the Aigle. From the 15th to the 24th the attack was continued by bomb-vessels supported by the gun-brigs. p. 198. One French frigate w^as WTecked at the mouth of the Charente, another was burnt by her crew after Lord Cochrane had left. p. 203. At the close of the operations, the losses of the French were as follows : The Aquilon, Ville de Varsovie, 74's, and Calcutta storeship of 56 guns had been captured and bm-nt. The Tonnerre had been burnt by the French. The Tourville, Begulus, and Patriate, 74's, were so damaged as to be unfit for sea, and were to be cut down and made into mortar-vessels. The Ocean and Foudroyant had saved twenty-six guns each, but had thrown overboard all their stores and had cut away their anchors and cables. The Cassard of 80 guns was worth repairing. The Jemapyes, 74, was uninjured. One frigate had been ^\Tecked, and another had been bm-nt by the French, and two frigates had escaped. AIX ROADS : COCHRANE'S ATTACK ON GAMBIER 31 The French fleet had ceased to be 'a fleet in being,' and the greater part of the British fleet that had previously- blockaded Aix Roads thus became available for other purposes. When the Irri'perieuse came out from Aix Roads, Lord ' Trial of Cochrane went on board the Caledonia and had an interview bi^r;*"'pr' with Lord Gambier. Though he complained of the conduct ^^*-^- of some of the officers commanding the lire-ships and smaller vessels, he said iiothing to cause Lord Gamhier to believe that he had any cause of complaint against him. Lord Gambier ordered the Im'perieuse to return to England and to take Sir Harry Neale with him, who was to carry the despatches. On his arrival in England Lord Cochrane told Lord Mulgrave that as member for Westminster he should oppose the vote of thanks to Lord Gambier. The Admiralty called upon him by letter to state the grounds of his objection p- Ji- to the vote of thanks. In his evidence at p. 41 of Lord Gambier's trial, he described this as a very improper pro- p- ^^• ceeding on the part of the Admiralty. He wrote an evasive answer to the Admiralty, referring them to the ship's logs. This method of attacking Lord Gambier was unwise and recoiled on himself. For if he had boldly come forward as prosecutor, he would have had the right to remain in court during the trial, and of cross-examining the witnesses, instead of leaving it to Mr. Bicknell, who was sent down by the Admiralty, to prosecute. Lord Gambier applied for a court-martial on his conduct as Commander-in-Chief. His request was granted and a court-martial assembled at Portsmouth on July 20 and sat until August 4, 1809. He was honourably acquitted. Aix Roads Fables Some of the inaccuracies of the ' Autobiography of a Seaman ' may be noticed here. At p. 41, vol. ii., the writer complains that Captain 'Memonaia Austen, ' who was present in Basque Roads, was not Lofd'oTm- examined before the court-martial.' Captain Austen was •''«'" ' (kv not in Basque Roads during the action. Ho was then on chatter- his way to China. ii°367. 32 THE GUILT OF LORD COCHRANE IN 1814] At p. 42, vol. ii., we are told in a note that Lord Cochrane was appointed against his own will to command the attack, ' after all others had declined the enterprise.' I have already mentioned Admiral Harvey's indignation at being superseded in the command of the fire-ships. ' Trial of At p. 71, vol. ii., the writer states that the Revenge bier/^pp!' ^^^ Valiant, Une-of -battle ships, and five c six frigates, had ifik^^' ^'^^' ^o^^'i plenty of water and, whilst destroymg two of the enemy's ships, had remained there through a whole tide without grounding. If, however, we are to beheve the evidence of Admiral Stopford, of Captains Bligh, Kerr, Poo Beresford, and Eodd, and of Mr. Spurling, the master of the Imjperieuse, the line-of-battle ships Revenge, Valiant, Caesar, and Theseus, and the fi'igates Indefatigable and Im'perieuse, all got aground. The Imyerieuse struck hard while on the tail of the Palles. The Valiant had seventeen feet of water alongside while drawing at least twenty-two. The Caesar was aground for three hours. In Lord Coch- rane's evidence at p. 51, mention is made ' of the hne- of-battle ships, most of which had grounded.' An extract from the logs of Pallas, Valiant, Unicorn, Indefatigable, and Aigle is given to show that they anchored between 2.30 Evidence of and 4 P.M. in depths varying fi'om 5| to 7 fathoms. But ^Trki°(^f^*' this was at high water. The Valiajit and Indefatigable }f^\- . grounded at low water. The rise at spring-tides at Basque p. 150. ' Roads was 18 to 21 feet at springs and 8 feet at dead neaps. • Autobio- At p. 72, vol. ii., the writer says : ' I am writing graphy.' history — naval history. . . . The subject is, however, one 'LordTGam- in which the nation is collectively interested, and the bier,' p. 150. j]^ational, no less than the naval character involved.' It is for these reasons that I think that the truth of the charges made against Lord Cochrane's comrades deserve investigation, p 155. At p. 392, vol. i., of the ' Autobiography,' we are told that ' there was not the slightest necessity for burning the Aquilon and the Ville de Varsovie, as they could have been easily got off.' Captain Bligh of the Valiant swore that the water was up to their orlop decks when he ordered them to be set on fire. AIX ROADS FABLES 33 At p. 352, vol. i., the * Autobiography ' tells us that • Tri«i of when a partial attack was reluctantly made, ' neither ships ^°^'^ ^'""' nor bombs ' suffered from the fire of the batteries on the 208-u. Isle d'Aix. Now Captain Kerr of the Bsvenge said in his evidence, that his bowsprit was severely wounded, that the quarter-deck beam was shot away, that she received a number of shots in different parts of the hull, including one between wind and water, that 3 men were killed and 15 wounded, two of whom afterwards died of their wounds, all of which damage was done by the batteries of the Isle d'Aix. The Indejatigahle, too, had a shot through p. 89. her topmast fired from the Isle d'Aix. The loss of the Bevenge was greater than that suffered by the Imperieiise. If her log is correct on this point, the Imperieuse lost 3 killed and 10 wounded. In the ' Autobiography,' vol. ii. p. 58, this evidence is summed up as follows : ' Captain Kerr was consequently recalled whilst Captain Malcolm ivas italics in U7ider examination to say that his ship was once hit by the *^«°"g»'>»'- batteries.' This is a deliberate misrepresentation. He gave evidence that his ship was only once hit on the 13th, the rest of the damage was done on the 12th. The distance of the fleet from the scene of action varies very much in the ' Autobiography.' Before the fleet moved in on the 12th it is stated (vol. i. p. 399) that Lord Gambler was more than a dozen miles from the scene of action. At p. 380 it is stated that he was with the fleet fourteen miles distant. In his evidence at the trial, Lord Cochrane Lord* Gam- describes the British fleet as being, to the best of his judg- aJfd'i^l'^" ment, ' eight and nine miles — I think nine miles distant ' Memorials from the French fleet.' According to the log of the Caledonia oambier ' and the evidence of Mr. Fairfax, who took angles to find "• i^^- the position of his ship, it was six miles distant from the Isle d'Aix. As regards the position taken up by the fleet on the morning of the 12th, the ' Autobiography ' (vol. i. p. 350) says that Lord Gambler was never nearer than nine miles of the scene of action, but at p. 384 we are told that he approached within seven or eight miles of the grounded ships, and anchored about three and a half miles from the 34 THE GUILT OF LORD COCHRANE IX IS 14 • Trial of Isle d'Aix, just out of range. But according to the evidence bier,' p.^tt! 0^ Admiral Stopford, the fleet was rather more than three miles distant from the Isle d'Aix. • Autobio- Lord Cochrane declared that his explosion vessel caused pp*373,'400, a wave which washed away the whole of a boom a mile *^- long that was in front of the enemy's fleet. He describes this boom as ' the most stupendous structure of the kind on record.' According to him, it was a double one com- posed of large spars, bound by chains, and moored with one hundred anchors. He also quotes a letter from The p. 420. Times of May 4, 1809, in which it is stated that the mouth of the Charente was completely blocked with wreck. This wreck, he declares, must have been that of the boom, as no ship was wrecked. Lord Cochrane says that at dayhght on the 12th not a spar of the boom was visible. I am therefore inclined to believe that its size and strength have been greatly exaggerated. Parts of the boom moreover must have been farther from the explosion vessel than Lord Cochrane himself was, when the explosion took place. Such a terrific wave would have swamped Lord Cochrane's boat instead of merely endangering it. One hundred anchors in a mile sounds rather a large order. As regards the floating wi-eck, the writer forgets the two explosion vessels that were blown to pieces, the twenty fire-ships driven on shore in rough weather, to say nothing of the stores thrown overboard to lighten the French ships, or of the fragments of their burnt ships which must have floated about for a considerable time after the engagement. ' Memorials The intercepted letter from the French officer already Gambier,' referred to, dated April 10, describes the boom as follows : n^^308, « j^ jg composed of strong cables of the smaller ^ kind, and is floated by large logs of wood, and other materials ; it is held by strong anchors, and covers all the part whence the current comes towards our fleet.' On April 15, after the attack, the same officer wrote : — On the 8th April anchors, cables and other materials necessary to make a second boom were applied for, and it is clear that it * The italics are mine. — Ed. r AIX BO AD FABLES Q^ would have been of the greatest service, to guard us from the enemy's fire-ships. The coast is covered with the remains of the fire-ships and of our ships that were burnt. From this I gather that the boom was a hght singlo boom, only strong enough to keep out boats and fire-ships in a light wind. It blew hard on the night of the 11th, The Mediator was an old Indiaman of 800 tons, and eight ' Trial of of the fire-ships were the largest of the transports that wer/ ^pj,"' supplied the fleet. They broke through the boom when ^^^~^- they came in contact with it, though the fire-ships appear to have been checked, until the arrival of the Mediator. If it had not been for the report of those on board the Mediator, I do not see how Lord Cochrane could have known of the existence of this boom, until prisoners had been taken. Captain Protean of the French frigate Indienne says that he saw something floating at the boom, and that it exploded. His statement may be true, or it may be that he described the explosion as having taken place nearer than it did, as an excuse for his own conduct. If true, however, it only follows that the part of the boom nearest the Indienne was broken. The ' Autobiography ' states that Captain Wooldridge i ' Autobio- claimed to have destroyed the boom and says : preLtft Earl's edi. This statement was made by Captain Wooldridge not only tion.p. 231. to Lord Gambier but to the officers composing the subsequent courtmartial ; more strangely still it was accepted by those officers."^ Captain Wooldridge gave no evidence at the court- martial. I cannot find that he ever claimed to have done more than to break through it, and, by so doing, let the nearest fire-ships in also. Next day the French probably had to cut some of the lashings of the boom to let their own boats through, and to get a clearer space for moving their ships. Lord Cochrane complains that every naval ^ Having been severely burnt in the Mediator, he was not Ukoly to have been a witness of subsequent proceedings. ^ Italics in original. B 2 36 THE GUILT OF LORD COCHRANE IN 1814 p. 72. ' Autobio- graphy,' i. 374. history since 1809 has given Captain Wooldridge the credit of having broken the boom. That he did not do so, there- fore, rests solely on statements contained in the ' Auto- biography of a Seaman.' I have already mentioned the gallant manner in which the officers and crew of the Mediator stuck to their ship. I cannot find that Lord Cochrane ever claimed to have destroyed the boom until 1847. It is not until thirty-three years after the event, when most of those who were at Basque Koads were dead, that this attempt was made to filch the honour of having broken the boom from Captain Wooldridge. ' Admiral The fact of the Caesar having been three hours aground Ei^de°nce/ On a Continuation of the Boyart, or else on a separate bank in the direction of that shoal, is, I think, fairly good proof that there were impediments in the way to the anchorage in question. The ' Autobiography ' contains the following passage : — The fortifications on Isle d'Aix alluded to by Admiral Allemand, were, as Lord Gambier had reported to the Admiralty, in his letter of March 11, insignificant, or as his Lordship at first expressed it, ' no obstacle ' ; a dozen guns being the utmost number mounted on the batteries commanding the roads, though these were afterwards characterized by his Lordship as the ' strong works on the Isle of Aix.' Now this is one of the most unscrupulous misrepresenta- tions that occurs in the book. Lord Gambier did no such thing. He wrote on March 11 : The advanced work between the Isles of Aix and Oleron, which I mentioned in my last letter, was injured in its founda- tion, and is in no state of progress ; that is, therefore no obstacle to our bombarding the enemy's fleet, if you should be disposed to make an attempt to destroy it. This refers to the work on the Boyart shoal. On April 1 the Amelia frigate and the Conflict brig dispersed the men at work on the Boyart, and, if we are to believe a letter of a French officer, sent a boat on shore which carried off their tools. ' Trial of Lord Gam- bier,' pp. 114-15. ' Autobio- graphy,' i. p. 342. ' Trial of Lord Gam- bier,' p. 120. ' Memorials of Lord Gambier,' ii. 108, 109, and 370. 186. AIX ROADS FABLES 37 Lord Cochrane himself told the court-martial that the * Trial of enemy's fleet were flanked towards the north by thirteen t^r/ \lrTi. cannon on the Isle d'Aix, besides the mortars on that island. At the trial Lord Gambier asked Sir Harry Neale the p- 18«. following question : Q. What number of furnaces for beating shot did Lord Cochrane report to me that he had observed in the fort of the Isle d'Aix, in reconnoitring previous to the 11th of April ? A. I did not hear him report to you, but he reported to me on his return from reconnoitring, I think on the 5th of April, that he had seen some eighteen hundred men, and five furnaces burning at that time. He afterwards stated that Lord Cochrane had told him p?;. ^^'^' that the west end of the battery was in a state of rubbish. Lord Gambier also says in his defence that Lord Cochrane had reported to him that there were five furnaces for heating shot. This * no obstacle ' fable is repeated again and again. Whether Lord Gambier made a mistake or not on April 12 is a matter of opinion. Judging after the event I think that Lord Gambier would have done better had he shifted his flag on the morning after the attack into a smaller vessel and done his own reconnoitring, and that if Lord Cochrane had commanded the fleet, his reliance on the obsolete chart contained in the NejAune Frangais would have caused the loss of several of our ships, which would have shared the fate of the Jean Bart. Lord Gambier is at any rate entitled to fair play, a treatment which no man ever received who differed from Lord Cochrane. He should be judged by what he actually did, and not by misquoted letters, or by the fables to be found in a book written with the avowed purpose of pushing certain money claims. CHAPTEK V TRIAL OF LORD GAMBIER After the affair at Aix Roads the Ministry resolved to ask Parliament to pass a vote of thanks to Lord Gambier and the fleet. Lord Cochrane was ill advised enough to object to the action of the Government. He went to the Earl of Mulgrave and said that as a Member of Parliament he would oppose the vote on the ground that Lord Gambier had failed in his duty to destroy the French fleet. On hearing of Lord Cochrane's conduct Lord Gambier demanded a court-martial to enquire into the whole subject. This demand was granted, and the court-martial sat in July 1809, and honourably acquitted Lord Ga,mbier. ' Trial of The first witnesses were called to prove the logs of their bi°er; ^PP?' respective ships. Mr. Spurling, master of the Iniperieuse, 25-30. produced the log of that ship. But Lord Cochrane produced a log of his own and swore that the log of the Imyerieuse was incorrect. These two logs are printed in the Appendix to the trial and are in flat contradiction on p. 33. several important points. Lord Cochrane admitted that previous to the attack on April 11 he had received every assistance from Lord Gambier, Admiral Stopford, and the captains of the fleet, and that the frigates and smaller vessels had been very judiciously placed on the evening of the 11th. Lord Cochrane repeatedly refreshed his memory pp. 38 and from a paper that he had drawn up in London in June, *^' after he knew that a court-martial was to take place, but which he declared was dra's\Ti up from notes made at the time. Lord Cochrane said that the Admiralty had done a very improper thing in writing to him with reference to p. 41. his conduct in Parliament anent the vote of thanks, but 38 LORD COCHBANE'S COMPLAINTS 89 to me it seems hard to see what else the Admiralty could • Trial of have done. _ tS> piTs! He complained of Lord Gambler's unnecessary delay in attacking the enemy. In his opinion two or three hne-of- battle ships ought to have been sent in at daylight on the 12th, supported by the frigates, and that after the two French hne-of- battle ships that remained afloat had been moved towards the Charente at 11.30, the frigates alone could have destroyed the ships on shore. The ebb-tide continued to run until twenty minutes past eight. He also referred to the grounding of most of the hne-of-battle ships p- 5i. that had been sent in. When asked what steps he had taken to rejoin Lord Gambier when ordered to do so, he replied : ' His Lordship permitted me to stop, and on the 14th also permitted me to stop, because in fact it was impossible to get out ' — a p- 54. marked admission of the difficulty in getting even a frigate out of Aix Eoads in unfavourable weather when once there. When he reconnoitred the Isle d'Aix there were only thirteen guns mounted. • P" '*'• Admiral Stopford, the next witness, said that he had ordered the line-of-battle ships out on the morning of the 13th, that the Caesar had got aground on ' a continuation of the Boyart shoal or else a separate bank in the direction of that shoal,' that it was nearly dark when she got on shore, that the enemy did not perceive her situation, that only one shot from the batteries went over the ship after she had struck the ground, and that had it been daylight he should have despaired of getting her off. The pilot had told him that there was sufficient water. Admiral Stopford mentioned that he had commanded a squadron in Basque Roads for a considerable time. He said : The dislodgement from their anchorage of the enemy's 'jj^^^(?^j^_ ships by fire-ships removed but a very small part of obstacles bier,' p. 73. which ever existed in my mind, and in those of other officers who yj*|"'f'^*j.8 have commanded before me towards the British fleet going in to ovidcncc. attack them ; the difficulties of the navigation, and our imper- fect acquaintance with it, with the wind right in would, I think, have made me unworthy of command, if I had risked a fleet or a 40 THE GUILT OF LORD COCHRANE IN 1814 squadron entrusted to my charge in a situation where ours would have the only loss and the enemy's all the advantage. Lord Gambler's defence occupies thirty-four pages. I give some extracts from his defence : ' Trial of J have iiow the satisfaction, that out of all the officers of the bier,' p. 106. fleet who are summoned on this trial, the charge rests upon the unsupported, I may say already refuted, testimony of the Captain of the Imperieuse. ... p. 109. After making his undefined accusation against his Admiral, he excuses himself from explanation by a general reference to the log and signal books of the fleet, without knowing if I may judge from the imperfect state of his own log, what that general refer- ence might produce. . . . p. 109. Although a considerable degree of disappointment was manifested throughout the fleet, on his arrival to conduct the service to be performed by fire-vessels, yet every officer in the fleet rendered him the most ready assistance, not only in valuable suggestions (the entire credit of which seems to have been assumed by his Lordship), but by every other means that zeal and courage could afford. Lord Cochrane on presenting himself to me after the action, was general in complaint of the officers who commanded the other ships, engaged at the same time as himself on the attack of the enemy ; but having equal means with his Lordship, of judging of the conduct of those officers, I do aver that it was highly meritorious. p. 110. At the time Lord Cochrane made this general complaint I had not the smallest suspicion that there existed in his mind those sentiments of disapprobation of my conduct, which by his proceedings since his return home, I am to suppose he then entertained. It would in such a case have been liberal, and I think also his duty, to have made a communication to me to that effect. I should then have been enabled to have guarded, in some measure, against his attack upon my character, on his arrival in England. . . . pp. 113-24. Lord Gambier had taken precautions to deal with any attack that the enemy might make on his fleet with fire-ships, or with any attempt the enemy might make to escape from Basque Eoads, and he had sent the master of the fleet and the master of the Caledonia to sm-vey the channel, as a prepara- THE FIRE-SHIPS 41 lion for the intended attack on the enemy's ships. Ho ordered eight of the largest transports then with the ileet to be prepared as fire-ships by means of some resin and tar recently captm-ed in cliasse-marees and other combustible materials supplied by the fleet. On the 10th of April twelve fii'e-ships arrived from England. He said that the night was extremely dark — it blew a strong gale with a high sea ; from these and other untoward circum- ' Trial of stances several of the fire-ships failed in their object but b/^r,'*p.'" he ' could not discover (after the fullest investigation), ^^• that blame was imputable to any of the officers who commanded them.' The explosion vessels, conducted by Lord Cochrane in p. 124. person, also failed in their object, as will be seen by reference to the small chart I now deliver into com-t, which points out where two of them blew up ; the third broke adrift and did not explode. He gave as a reason for not attacking sooner that, with p- i^7. the wind blowing directly in, a damaged ship could not come out again unless she had the ebb-tide to bring her out, and that had the wind been favourable for both saihng in and out, or even the latter only, there could be no doubt that the sooner the enemy's ships were attacked the better. He said that the bomb vessel Etna passed the Im'perieuse p- 127. whilst at anchor about one, and began the attack some time before the Im'perieuse arrived up ; half an hour after- wards the Imperieuse and Beagle followed the Etna and gun-brigs into the attack ; and between ten minutes before and seven minutes after two, as will be seen by a reference to the logbooks on the table, he ordered the Indefatigable, Unicorn, Emerald, and Aigle frigates with the Valiant and Revenge to weigh. Captain Bligh the senior officer having some hours before received his directions for his proceeding against the enemy. During the night of the 13th he sent in the Caesar with p. 129. Admiral Stopford, and the Theseus, 74's, together with the boats of the fleet, and he also sent Mr. Congreve with his rockets. On the 13th and 14th Lord Cochrane remained 42 THE GUILT OF LORD COCHRANE IN 1814 in Aix Eoads, but nothing was attemptod by the frigates, though the Etna threw shells and the Whiting threw rockets. Lord Gambier said : ' Trial of -'■ li^ve next to refer to the evidence of the log and signal Lord Gam- books of the fleet, on which the charge purports to be founded, 13^-2. ^i^d I must here beg to call yoiu attention to the very unusual circumstance of there being already on your table, two logbooks of the same ship (namely the Imperieuse) and materially differing from each other ; one of them produced by the master of the Imperieuse, as the authentic public document of that ship, to the accuracy of which he has deposed ; and the other presented by Lord Cochrane, and admitted by his Lordship to be a compilation by himself in London, from materials that are not produced to the Court. In addition to these circumstances, I have to lay on your table a third paper, purporting to be also a log-book of the Imperieuse, but differing from the two already before you ; this paper was delivered to me by Lord Cochrane, in obedience to my order of the 12th May last, to furnish me ' with a copy of the books of logs and signals of his Majesty's ship Imperieuse under his command, from the 11th to the 15th April inclusive,' and, to this log the Court will find affixed his Lordship's signature. The Court having so attentively inspected the master's log, I need not point out the alterations evidently made therein : it cannot fail to observe the variations made in the two logs.' Lord Gambier further stated that he had inserted that the Calcutta had struck to the Imperieuse in his despatch on the authority of Lord Cochrane, and that he wished to have that point cleared in justice to the officers of the fleet. Mr. Fairfax said that after the Aigle, Unicorn, and Valiant had opened fu'e on the Calcutta he saw a shot from that ship strike a boat astern of the Imperieuse. Captain Bligh said that after three the Valiant opened fire on the Calcutta, and that shortly afterwards he saw her crew abandon her, leaving her colours flying. The Valiant then fired at the Aquilon, Ville de Varsovic, and Tonnerre as soon as she could get her broadside to bear on them. As 163. p. 15o. CAPTAIN BLIGirS EVIDENCE 43 the tide fell the Bevevge grounded, but was soon got off and went between the Boyart and the Palles shoals. The fiigates all followed her except the Imjicrieiise, who grounded about six o'clock that evening. In moving the Valiant she giounded on a knowl, and remained until eleven at night ; at low w'ater there was 17 feet alongside of her.^ Fom- fire-ships w^ere prepared by the Commander-in- Chief and were sent in afterwards, two of them were to have gone against the Foudroyant under the direction of Captain Seymour, and two against the Ocean, but as the wind was not favourable he judged the attempt to be ' Trial of impracticable. At half-past three a.m., the water being up \°^^\ p_*™" to the orlop decks of the Aquilon and Ville de Varsovie, he i^^- ordered them to be set on fire. The Valiant w'as in a very perilous situation when on shore, nothing but the wind shifting and blowing directly out could have saved her from being wrecked. Captain Bligh also stated that the Bevenge took up a position wdthin the Iivperieusc, and that she appeared to draw the fire of the batteries on Isle d'Aix from the frigates to her. When at anchor in the road of Aix, he had counted fifty guns in the batteries of that island. There may have been more, he was certain that there were not less.^ Lord Cochrane had told him that he calculated on losing three or four ships-of-the-line, if the Admiral had sent the squadron in. The Calcutta never struck her colours. An officer in p. loo. the Beagle's boat reported to him that he had taken posses- sion of the Calcutta, and that there was nobody on board. Mr. Stokes, who was on board the Imferieuse during part p. loi. of the action on the 12th, said that the Bevenge was the nearest ship to the enemy. Captain Poo Beresford said that the Theseus, 74, weighed p. los. at about 5 p.m. on the 12th and went into Aix Eoads. When he went on board the Imyerieuse, he found her on shore. He told Lord Cochrane that he had just left the Caesar, which was on shore also in a critical situation within the ^ She must have been clraMung at least 23 feet. — Ed. ^ From this I gather that a number of those guns wore masked when the island was previously reeonnoilrcd by frigates. — Eu. 44 THE GUILT OF LORD COCHRANE IN 1814 range of shot and shell ; that, in his opinion, ships-of-the- line had no business there. He also said that ' Trial of Lord Gambier seemed to be most anxious to act with his fleet, Lord Gam- j^^^ ^j^^t if he had sent them in there, it clearly appeared 163.' ' tliat few would have returned, if any, were I think my expressions and that it would have been madness to have done it. His Lordship [that is, Lord Cochrane] said that three sail-of-the-line might have been lost, which in his opinion did not signify. My reply was, that even one sail-of-the-line being lost would have been a disgrace to the enterprise and to England. This passed in the presence of Captains Bligh, Wooldridge, and Maitland, Colonel Cochrane [his brother], and there were several others round us at the time, whose names I do not recollect. Lord Cochrane also told him that it was a thousand pities that the Calcutta had not been brought off, that he • had sent a young cur on board to use his own discretion, and that the boy had set fire to her. Captain Kerr of the Bevenge said that his ship's shot just reached the Tonnerre, that the three ships that were on shore upon the Palles, and that got away, were never at any time in a position to be attacked by us as they were farther off. When the Bevenge quitted her situation her p. 167. keel was in the mud. Any ship, however short a distance ahead, must have grounded and been lost, as she was im- mediately under the fire of the enemy's- batteries. Captain Godfrey, of the Etna bomb, said that, in com- p. 172. pany with the Conflict, Insolent, and another brig, he passed the Imiperieuse on the r2th nearly half an hour before she weighed. He threw shells until his 13-inch mortar spht and his 10-inch shells were expended. 'My. Fairfax said that the explosion vessel blew up p. 177. about tw^o cables, that is about 400 yards, from the Lijra, and about a mile from the enemy, and that the fire-ships all appeared to steer to the point where the explosion had taken place. Immediately after the explosion he hailed the boats from the explosion vessel and demanded the countersign ; they replied, and said they were from the Imperieuse. The Lyra was a mile and a quarter from i OTHER WITNESSES 4^ the enemy's line-of-battle ships. Lieutenant Bissel and • Trial of Lord Cochrane were on board the Liira next day, and he l'"'''^, . asked the former why the explosion vessel was set fire to p- i78. so close to the Lyra. Lieutenant Bissel replied, ' The fuzces burnt only six minutes and a half instead of twenty,' Mr. Fairfax then said, ' You had like to have blown me up and not the enemy.' Mr. Wilkinson said that on April 14 he was present p. no. when Lord Cochrane told the Admiral ' that if he had sent in the ships agreeably with his signal, he calculated or reckoned upon three or four of them being lost, or words to that effect. This alludes to the signal of the 12th. _ * Seven of the enemy's ships on shore — half the fleet can destroy them.' He said nothing of Lord Gambler's conduct in his presence, but he spoke of the misconduct of the sloops, small vessels, and of a great many of the fire-ships. Sir Harry Neale said that on April 6 Lord Cochrane p. ise. had told him that the fleet was nine miles from the French fleet ; he replied that they were only six, the distance had been ascertained by angles as well as cross-bearings, and Lord Cochrane said that the chart was not to be depended on. Captain G. F. Seymour of the Pallas said that there p. i94, was water for the line-of-battle ships to have floated in at eleven on the morning of the 12th, but that he doubted whether they would have been successful or unsuccessful. Captain Wolfe of the Aigle said no fire-ship was set fire to before the explosion vessel blew up, that five behaved very well — ^he especially mentioned Captain Newcomb and Lieutenant Cookesley. His own ship was nearly burnt by two of them that were on fire before they passed her. The only one that was badly managed that he particularly noticed was one that went between the Aigle and the Isle of Oleron. Captain Kerr of the Bevenge gave evidence about the p. 209. damage done by the batteries of Isle d'Aix. Part of the mischief done to his running rigging was from the fire of the Aquilon and Ville de Varsovie. Lord Cochrane had 46 THE GUILT OF LORD COCHRANE IN 1814 never sent to inform him of a safe anchorage to the southward. Captain Pulteney Malcolm said that had there been a reserve of fire-ships he thought that some of them might have been destroyed on the morning of the 12th. When the bomb and brigs were sent in on the 12th the Iniyirieuse and Beagle very soon followed. He thought that the large ships might have been sent in half an hour sooner, after the two French line-of-battle ships that had remained afloat had been moved. He thouglit that ships on no account could with propriety have been sent in to attack the enemy till, at least, half flood which was about noon ; that sending them in afterwards while the enemy remained on the defensive would have been attended with considerable risk, because had they been disabled with the wind as it was they could not have come out but must have gone to the mouth of the passage between the Palles and the Boyart, which was ill understood but where I had believed there was anchorage for a few large ships. • Trial of Captain Broughton of the Illustrious said that he was Gambier ' ^^ board the Amelia when she went in to dislodge the enemy pp. 218-24. from the Boyart shoal, that there were between fourteen and twenty guns on a semicircular battery on Isle d'Aix which commanded the roadstead, and another battery which contained six or nine guns which also bore on the anchorage and its entrance. The rubbish heaps that he saw were caused by the enemy repairing and improving the old works. There were plenty of other guns besides those he mentioned. He thought that ships might have been sent in at about eleven o'clock on the morning of the 12th.i When Captain Broughton gave this evidence, he believed in the existence of a safe and accessible anchorage in Les Grandes Trousses, on the other side of the Boyart and Palles shoal. When Captain Broughton was asked whether, if he had commanded the squadron, he would have taken it in to p. 223. attack the enemy at their anchorage, he rephed, ' Most ^ This evidence and that of Captain Malcolm is the only evidence that I can find which supports Lord Cochrane's contentions. — Ed. DECISION OF THE COURT 47 certainly not.' I mention this because Admiral Harvey had said, when out of temper with Lord Gambier, 'that had ' Autobio Lord Nelson been th^ere he would not have anchored in f^-,^^^''' '' Basque Eoads at all, but have dashed at the enemy at once. Captain Kerr of the Bevenge said that if two line-of- . Trial of battle ships had been ordered to advance within two or ^■°^'^,. 111 1 i> • (iaml)ior. three cable-lengths from the batteries of the Isle d'Aix p. 225. they would have been completely dismasted and have suffered a heavy loss in men ; and that if dismasted they would probably have been lost by drifting up the Charente, if the wind had been from the northward as it was on April 12. I have mentioned in another place the damage done to, and the losses sustained by, the Bevenge iiom the distant fire of those batteries. Lord Cochrane asked to be called again to give evidence p. 229. about the conduct of the officers in the fire-ships and other vessels. He wished to lay before the Court the orders given to the fire-ships for their guidance, as it would tend to clear some of them from blame. As this had nothing to do w^ith Lord Gambier's conduct, the Court dechned to enter into it. At the close of the trial Lord Gambier said : Some positions laid down by two of these witnesses have been so completely refuted by other evidence brought forward, that I feel myself more and more confirmed in my opinion, that the measures pursued for the attack of the enemy were those best calculated for the object in view. The Court decided that Lord Gambier's conduct was marked by zeal, judgment, and abihty, and adjudged him to be most honourably acquitted. To the best of my knowledge no new evidence has been brought forward since this trial, except that a later chart of 1829 is more in agreement with the Armide chart than the one pubhshed by Lord Cochrane. I do not think that a later chart than that of 1829 would add to our knowledge on the subject, as shoals in estuaries are perpetually changing . Memorials their position. Moreover, I do not look upon the assertions oamUer.- contained in the ' Autobiogi'aphy ' as evidence. "• '"■*• 48 THE GUILT OF LORD COCHRANE IN 1814 The ' Mariner of England,' published in 1908, which is an account of the life of William Richardson, gunner of the Ccesar, contains an interesting and independent account of these operations. He says that ' The Mediator carried away the boom laid across by the enemy, and the other fire-ships followed her in,' and mentions that the captain of the Ccesar had to leave her to attend as a witness at a ' Court-martial going to be held on Lord Gambler at the instigation of Lord Cochrane for something that had displeased the latter about the Basques Roads business.' I n «' PART II THE STOCK EXCHANGE FRAUD OF 1814 CHAPTEE I POLITICS AND FINANCE During the court-martial on Lord Gambier (July 1809) Captain Duncan, a son of Admiral Lord Camperdown, had been appointed to the Lnperieuse as acting captain. The ' Autobiography ' tells us that Lord Cochrane had requested that he should be the officer selected for that pm-pose. In 1810 the Admiralty asked to be distinctly informed ' whether or not it is your Lordship's intention to join your ship the Imyerieuse.' The ' Autobiogi'aphy ' says that he was determined that Mr. Yorke, then First Lord of the Admiralty, should neither get an affirmative nor a negative from him as to joining the frigate. Eventually on June 14, 1810, he wrote to say that he was unable to join her in the time specified. His real reasons for refusing to do so were no doubt partly those given in his speech on March 24, 1812, and the fact that since peace had been made with Spain there were few^er chances of obtaining prize-money. His cruise in the Pallas had made him independent of the service. So he busied himself with pohtics. He appears to have taken great pleasure in addressing crowds in Palace Yard, near the entrance to the House of Commons. The practice of hooting or cheering Members of Parhament on their way to the House was for many years an important feature of 49 * 50 THE GUILT OF LORD COCHRANE IN 1814 Westminster politics, and this form of picketing greatly increased the importance of that borough. Tiring of pohtics, and finding his importance decreasing in the House of Commons, he became a plunger on the Stock Exchange, in conjunction with his uncle (the Hon. Cochrane Johnstone) and Mr. Butt. The Hon. Andrew Cochrane Johnstone, though an uncle of Lord Cochrane's, was only about eight years older. He had taken the name of Johnstone on his marriage with a lady of that name, the daughter of a distinguished naval officer. He had been in the Army, and was at one time Governor of Dominica. While in that situation he showed nerve, courage, and resource, when dealing with a mutiny of negro troops. He appears to have left the service in 1803. He is described as a ' smuggler ' and as a ' daring adventurer ' by Lord Brougham. ' Life and He had been engaged in some business connected with LorT °^ ^^^® Walcheren expedition in 1809, and was behind the Brougham.' Imes of Torres Vedras in 1810 when Massena was facing 50*7. ^" Wellington. I think it possible that his smuggling may merely have consisted in his getting British goods through to the Continent, a perfectly legitimate operation in war time. In 1814 he was heavily in debt, but being member for Grampound, a purchasable borough, he could not be arrested. After his trial in 1814 for participation in the Stock Exchange fraud, he fled the country and does not appear to have returned. Had he done so, after serving whatever sentence might have been passed upon him, he might have been imprisoned for debt. ' Les absens ont toujours tort.' Lord Cochrane and Mr. Butt, both of whom remained in England, endeavoured to make a scapegoat of him. Their supporters have worked ' the wicked uncle ' theory for all that it was worth, to a greater extent I think than is warranted by the actual circumstances. In 1814 Lord Cochrane was no child, no ' Babe in the Wood ' to be led about by a wicked uncle. Lord Cochrane's extraordinary account of his own ac- WRD COCHRANE AND MR. BUTT 61 quaintance ^vith Mr. Butt is as follows, and is derived chiefly fi-omthe ' Eeviewof the Case of Lord Cochrane,' which was presented to King WilHam the Fourth in 1830 by Lord Cochrane, then Lord Dundonald. Mr. Butt had purchased the situation of Pay Clerk at Portsmouth Dockyard, and in 181 '2 he had complained to Lord Cochrane that his emoluments had been reduced. Mr. Butt also wished Lord Cochrane to bring a case of a false muster at Portsmouth before the House of Commons, which he dechned to do. The Eeview says that Lord Cochrane ' conceived a favomable opinion of his character and motives which he still retains.' Mr. Butt wished Lord Cochrane to speculate on the Stock Exchange, which he at first refused to do. But in October he brought to Lord Cochrane £430, which he said was the profit of a speculation he had taken the hberty to make on his lordship's account ; which proceeding Lord Cochrane then considered, and still considers, a disinterested 'Review of though, as it turned out, an unfortunate act of friendship Lord^coch- on the part of Mr. Butt. From this beginning Lord Coch- ^^^^', „ . . PP- 81-2, rane, chiefly through the medium of Mr. Butt, who always printed acted gratuitously, though occasionally through directions which he himself gave to Mr. Butt, continued to speculate in Funds — and upon the whole Lord Cochrane reahsed by these speculations between October 22, 1813, and February p go. 10, 1814, the sum of £4,781 17s. 6(Z. Mr. Butt did not make the acquaintance of Mr. Cochrane Johnstone until January 20, 1814. From that time Mr. Johnstone cultivated the acquaintance of Mr. Butt, who introduced liim to liis broker, Mr. Fearn. Lord Cochrane and his uncle were also on friendly terms with the adjutant of Lord Yarmouth's regiment, Charles Random de Berenger, a man of Prussian origin, who claimed to be descendant of those Lombard kings whose dynasty was put an end to by Charlemagne in the year 772. He appears to have been the inventor of a system of shooting, to have been in fact a prototype of what we should now call a musketry instructor. The American ships stationed backwoods' men in their tops to fire down on to the decks s2 52 THE GUILT OF LORD COCHRANE IN 1814 of their enemies, and it was thought desirable to man the tops of our ships with specially trained men. He was a man of varied knowledge, and claimed to have invented a new form of destructive explosive. The idea of his going on board the Tonnant to instruct the men in sharpshooting, and possibly to assist Lord Cochrane in his laboratory work, had been mooted, but nothing definite had been decided upon. De Berenger was heavily in debt, and resided in consequence within the rules of the King's Bench, a sort of modified imprisonment that has since been abolished. His social position, however, does not appear to have been affected by his pecuniary difficulties. He was a frequent visitor at the houses of Admiral Sir Alexander Cochrane and of the Hon. Basil Cochrane ; and he was on very friendly terms with the Hon. Cochrane Johnstone. Lord Cochrane has admitted that he had met him on social occasions at the houses of both his uncles.^ ^ See pp. 59 and 65, Lord Cochrane's Letter to Lord Ellenhorough. CHAPTEE II CONSPIRACY TO RIG THE MARKETS I HAVE already alluded to Lord Cochrane's Stock Ex- change speculations in my account of Mr. Butt. During the earlier months of 1814 such speculators had a very exciting time. The destruction of the largest army ever put in the field, during the Eussian campaign of 1812, and the crushing defeat of Leipsic in 1813, had freed the greater part of the Continent from invaders, and had enabled the allied armies to approach within striking distance of Paris. The battle of La Eothiere, fought on February 1, 1814, left the French in despair and raised the highest hopes of the Allies. The ojfficers of their armies made up dinner parties for the Palais Eoyal, Napoleon appeared to be at his last gasp, and an immediate peace appeared certain. But unfortunately, more from political than from strate- gical reasons, the Allies separated their forces, and Napoleon again appeared on the field in far different form than he did at La Eothiere. To give some backbone to his conscript armies he had withdrawn his seamen from their ships, and most of Suchet's veterans from Spain. The former indeed had been so much in harbour that they had had far more opportunity of learning their drills on the parade-ground than their duties in a gale of wind. Besides, they were grown men, and had been under discipline for some years. With his armies thus strengthened Napoleon resumed the offensive, won several victories, then to the astonishment of every one drove the scattered forces of Blucher before 53 54 THE OUILT OF LORD COCHRANE IN 1814 him, and forced Schwartzenburg back on Troyes, of which he took possession on February 23. Though still in command of superior forces, Schwartzenburg decided to evacuate that town in preference to risking a pitched battle against Napoleon's victorious troops. But then Napoleon's good fortune appeared to desert him. His victories had cost him the flower of his army, his enemies were too numerous and too filled with hate and bitter memories of French occupations to accept as crushing any defeat that was not destruction. Eventually numbers prevailed and Paris capitulated on March 30. At that time a speculator on the Stock Exchange was practically limited to Bank Stock, East India Stock, Consols, 3 per cent. Keduced, 4 per cents., and 5 per cents. There was also a curious investment called Omnium, the com- position of which varied from time to time. In February 1814 £1,000 Omnium consisted of £1,100 Three per cent. Eeduced and £670 Consols. Atiay, This stock was always quoted at a premium varying from ^^^'' ■ day to day . . . and as it was more sensitive than either of its component parts, it was the favourite investment of those who merely made time bargains and whose habit it was to buy vast quantities of stock, which they might dispose of at a profit or a loss, but which they had neither the wish nor the power to purchase outright. The prices of these stocks were naturally much affected by the news from France. On Monday, February 7, Consols were at 66|; the confirmation of the victory of La Eothiere sent them up to 71 1 at the end of the week. They were at 72 on the 14th, but on Saturday the 19th they were at 70^, and had been as low as 70 on that day. On Monday the 7th, Omnium had been at 19|. On the 10th, it reached 23|, and on Saturday the 12th, it left off at 28|, but on Thursday the 17th, it was down to 25, and on Saturday the 19th, at 26| premium. In January 1814 Lord Cochrane was expecting the command of a 50-gun frigate, the Newcastle. He was, however, eventually appointed to the To7inant, a fine 80-gun DE BERENGER'S FALSE REPORT 56 ship, then fitting out at Chatham as flagship to his uncle, Admiral Sir Alexander Cochrane, who had already sailed for the North American Station. At this time, althouGfh Lord Cochrane had a place of P"''!'^ '^ ^ Record his own in the country, he does not appear to have had a office. Cnp. town residence, for on February 5 we find him writing from °' ^ ^ *• his Uncle Basil Cochrane's house in Park Street, Grosvenor Square, to the Secretary of the Admiralty, requesting their lordships to dispense with his joining the ship for ten or twelve days, in order that he might be enabled to arrange aft'airs of great private importance. The business he said which he had to finish required his undivided attention as it consisted in guardedly drawing up the specification of a patent. Lord Cochrane was told that he must join at once, but it was added that if he applied again when he had moved the ship down to Long Keach he would be granted leave, if the service permitted of it. He joined on the 8th, took the ship down to Long Keach, apphed again for a fortnight's leave, this time successfully. He came up to town on February 14. On February 17 he took a house of his own in Green Street, and on Monday, February 21, Lord Cochrane and Mr. Butt breakfasted together at Mr. Cochrane John- stone's in Cumberland Place, and then went towards the city in a hackney coach. On that day, before nine o'clock, rumours reached London of the arrival of an aide-de-camp calhng himself Colonel Du Bourg with news of the death and defeat of Napoleon, and when the Stock Exchange opened at ten o'clock the news from Dover had already begun to work, and though Atlay.p. 13. Consols opened at 70|, and Omnium at 26| for money, as the morning wore on and the tale of the aide-de-camp, and his despatches spread, the market went up by leaps and bounds and Omnium soon stood at a premium of 30J. This however was not obtained without a check, when towards twelve o'clock, it was known that no verification of the truth of the news had been received by the Lord Mayor, doubts as to its authenticity began to spread and Omnium began to fall, the 56 THE GUILT OF LORD COCHBANE IN 1814 fall however was speedily arrested by the arrival of a striking confirmation of the peace rumours, there came over London Bridge a post chaise and four the horses decorated with laurels, and with three gentlemen dressed as French officers with white cockades in their hats. The cortege passed through the city down Lombard Street, along Cheapside and over Blackfriars Bridge. As they went along the occupants of the chaise scattered little paper billets inscribed with ' Vive le Eoi ! ' ' Vivent les Bourbons ! ' This seemed to give the stamp of certainty ; the downward tendency was checked and Omnium touched 32. Still there were some hard-headed incredulous people who would not be convinced, and about 1 o'clock messengers were sent to the Government offices ; there it was discovered that no confirmation of the reported death of Bonaparte had been received and that the whole affair was a fraud. Then ensued the inevitable fall. Omnium sank gently to 30 and rapidly to 28. Even so it left off one and a half per cent, higher than it had opened. The next morning it was down to 27| and by the Tuesday afternoon it was back to 26 J its original price before it was disturbed by Colonel Du Bourg. The sudden rise had given occasion to a vast number of bar- gains in Omnium ; those who had sold on the Monday had been large winners, and those who had bought had lost propor- tionately. A similar fate had befallen those who dealt in Consols, which had opened on the Monday at 70| and had risen as high as 71|. On Tuesday morning they were down to 70. The Stock- broker of the Accountant-General of the Court of Chancery, who on the Saturday had bought Consols for the Court at 70, was compelled to purchase on the Monday at 71f per cent. The excitement produced by the news of Napoleon's death was not confined to the metropolis. In a letter to the 1st Lord Auckland on March 3, 1814, a correspondent writes that ' the postmaster at Auckland with some well chosen neighbours went to Hartw^ell House ' (the residence of Louis XVIII) as soon as the late stockjobbing fabrication arrived. They were received by the poor King himself, who shook hands with them, invited them to France, filled them with wine, and so on, till they had a foresight of their public entry into Versailles. Their disappointment was as great as the King's.^ ^ Journal of Lord AucJdand, iv. p. 408. 'THE TIMES' AND THE PILLORY 57 Apart from the bare faced nature of the fraud, perpetrated Atiay.p.is. at a time when the extreme tension of men's minds rendered them especially sensitive to the wilful dissemination of false 'The Bank, news, there had been heavy pecuniary losses, and it the reports Exchange, of the day are to be believed these losses had fallen not so much ^^^- ' A^ . ... expose on the ordinary speculator as on the outside public. A curious touching contemporary work tells us that at that time the great financiers various who controlled the stock markets had their own sources of mysteries,' information, better and more expeditious than any Government ^' messenger, and the crafty men of business knew well that the first intimation of such important news as the death of Bonaparte would not have been conveyed by a staff officer [as Du Bourg had represented himself to be] from Dover. A series of precon- certed signals worked from the French coast by means of fishing boats would have flashed the news and specially prepared relays of horses, or perhaps carrier pigeons, would have brought it to London long before any enterprising newsagent. Consequently the experienced hands stood aloof, while the outside public, to whom the story of the staff officer with his scarlet uniform and medal and star carried full conviction, rushed in to their undoing. No wonder, then, that a chorus of execration against the Stock Exchange and all its works rose high, that the press raved against the ' infamous imposition,' and that The Times, in its leading article of Tuesday, February 22, after denouncing the ' fraud of the most infamous and nefarious description,' went on to say : ' Great exertions will no doubt be made by the frequenters of the Stock Exchange to detect the criminal. ... If his person should be recognised he will probably be willing to save himself from the whipping post by consigning his employers to the pillory, an exaltation which they richly merit, and which if indicted for a conspiracy they will doubtless obtain. CHAPTEE III ACTION OF THE STOCK EXCHANGE The Stock Exchange was on its trial, and its authorities lost no time in their endeavour to get at the circumstances attending the fraud and to clear their members from the suspicion of having been parties to it. On the Tuesday- morning following the arrival of ' Colonel Du Bourg ' at Dover, the Committee of the Stock Exchange met and appointed a sub-committee to enquire into Avhat was now generally described as ' the hoax,' and if possible to bring to justice the principals and agents implicated. A large number of witnesses were examined before them, and as the first-fruits of the investigations a notice was posted up in the ' House ' on March 4 requesting that all those members of the Stock Exchange who transacted business either directly or indirectly for any of the persons undermentioned on Monday, the 21st February last, would favour the Committee with an ' interview.' The names given were those of the Hon. Cochrane Johnstone, Mr. R. G. Butt, Lord Cochrane, Mr. HoUoway, Mr. Sandom, and Mr. M'Rae, and at the same time a reward of £250 was advertised for the discovery of Colonel Du Bourg. On March 7 the sub-committee of the Stock Exchange presented a report with evidence attached to it. Although ordered to be printed for the use of Stock Exchange only, it soon found its way into the papers. I now give a few extracts which can be compared with the evidence after- wards given at the trial of Lord Cochrane. 58 BEPORT OF THE SUB-COMMITTEE 59 It appears in evidence from the examination of various a copy of parties, and is already well known to the public, that a person |^]"j* ^^^°^^ representing himself to be Colonel R. du Bourgh, Aide-de-Camp found in tuo to Lord. Cathcart came to the Ship Inn at Dover, at about one Tempio o'clock, on the morning of the 21st February. He stated that he Library, had just arrived from the coast of France ; that he brought the printed intelligence that Bonaparte had been slain; that the allied »ii'no3tver- • • • -r. • 1 1 • TT • l>atim in Armies were m Bans ; and that peace was certam. He im- the Coch- mediately ordered a post chaise and four to be got ready ; and '^'"Ji^'^jj'g^* after having dispatched a letter to Admiral Foley, at Deal, ' The communicating to him the above information, with a view to Asper-'"°*^^ its being forwarded to government by the telegraph, ^ set off with sions.' all expedition to London. This pretended messenger had been '^ho . T „ , - . , - ° Calumnious traced all the way to town, and it appears, that, about a quarter Asper- before nine o'clock, he arrived at Marsh Gate, Lambeth, where ®'°"^' P" *■ he alighted, and got into a hackney coach, in which he was taken to No. 13 Green Street, Grosvenor Square. The Sub-Committee, for various reasons, unnecessary to allude to, refrain from making any observations on the evidence which they have obtained relative to this subject. They there- fore communicate it without a single comment. They remarked, however, that ' on the afternoon of Saturday, February the 19th, • The the three parties above-mentioned may be considered as having ^gp"™"'°"* purchased for the next settling days the following sums, viz. : sions p. 29. Omnium. Consols. Lord Cochrane . . . £139,000 none Hon. A. C. Johnstone . . 410,000 £100,000 Mr. Butt .... 224,000 _168,000 Total . £773,000 £268,000 the whole of which was sold on the morning of Monday, Feb- ruary 21st. It does not appear that any member of the Stock Exchange has been implicated in the knowledge or participation of a measure, which would have, inevitably rendered him liable to expulsion from the House. They are in possession of still further information on the subject, which it is considered proper not to disclose at present, ^ The telegraph then in use was a semaphore, and \vouId only work in clear weather. 60 THE GUILT OF LORD COCHRANE IN 1814 and which they hope and expect will eventually crown their hopes with complete success. I have no doubt that the further information alluded to refers to the real name of Du Bourg, as the sub-committee in their second report of January 27, 1815, state not only that they were aware that Du Bourg and De Berenger were the same five days before Lord Cochrane mentioned De Berenger's name in his affidavit of March 11, but that a icarrant was already out against De Berenger. And I also think it more than prol)able that Lord Cochrane knew that they hnew that Du Bourg ivas De Berenger when he made his affidavit, and I shall give my reasons for so doing later on. These proceedings of the Stock Exchange Committee failed to meet wdth the approval of Mr. Cobbett. His Weekly Begisfer of March 21 says : Under no wild democracy, under no military despotism, under no hypocritical or cunning oligarchy, under no hellish tyranny upheld by superstition, was there ever committed an act more unjust or more foul than that which has during the last three weeks been committed in the City of London, through the means of the Press against these three gentlemen. • Remarks A contemporaiy pamphlet states that 7,000 copies of of Lord*^'' one of Cobbett 's papers were purchased and distributed cocin-ane,' |-,y ^^iq parties implicated in this report. The language of Hansard, tliose days appears to have been strong. On the other hand Francis Horner, one of the most justly respected members of the Whig opposition, declared that the public were much obliged to those individuals who had exerted themselves in tracing the Stock Exchange fraud to its source. In the pamphlet above alluded to we are told that — If any proceeding could claim the merit of singular candour it was this action of the Stock Exchange. It was more than laying open the brief of counsel to his opponent ; it was giving to the party implicated full knowledge of the ' head and front ' of the Atlay, p. charge against him ; full time to enquire into the character, connexions, and motives of all the witnesses ; to probe and cross xxxn. p. 987. MB. [COBBETT ^ 61 examine them before the time of their appearance in Court ; in short to guard against the effect which could be produced by witnesses procured and stimulated by improper means. And the importance of this will be appreciated if we remember that in those days accused had no right to the perusal of the depositions taken against them, and that in the events which here followed the True Bill was found without any preliminary enquiry before magistrates. CHAPTER IV LORD COCHRANE S FIRST AFFIDAVIT See Mr. Croker's letter of March 22, 1814. Hansard, xxxiii. p. 550. This report of the sub-committee could not well be left unnoticed, and it became necessary for Lord Cochrane to take steps to vindicate his character. He had ignored the clamour and the newspaper articles on the subject and had rejoined the Tonnant at Chatham on the 28th of February 1814, it was now clearly necessary that he should return to town. On the application of a near relative the Admiralty granted him leave, and Lord Melville, who was First Lord, wrote a letter to him which he declared to be still unopened on July 5. He has also stated that he had apphed to Admiral Surridge for leave previous to the receipt of leave from the Admiralty. But he has brought no evidence to support these assertions, and it appears a very peculiar proceeding on the part of a captain of a line-of-battle ship to leave unopened a letter from a First Lord of the Admiralty in war time. He evidently wished it to be believed that he left Chatham for London on his own accord, and not because Lord Melville had told him to do so. In the meantime De Berenger (the soi-cUsant Du Bourg) had been provided with a quantity of one pound notes, part of the proceeds of a cheque for £479 odd drawn by Lord Cochrane. He had left London on Sunday the 27th, and there was every reason to believe that he had reached the Continent in safety, as in consequence of the successes of the AlHes, most of its ports were now open to British trade. There was, however, at least one other man besides Lord 62 t I. ISAAC DAVIS' RECOGNITION OF DE BERENGER 63 Cochrane who had recognised De Berenger when on his visit to Green Street. He had been seen by a coloured man named Isaac Davis, a former servant of Lord Cochrane's, who afterwards made an affidavit on March 21 in which he stated, ' I knew him having seen him when his lordship Uved in Park Street.' It is only in accordance with human nature to suppose that Isaac Davis mentioned this to others before becoming aware that it was desirable that he should remain silent, and that the identity had thus leaked out. Davis was better educated than most coloured men, as he could read. ^ The Third Report of the Stock Exchange shows that p™'";Jf^'- Lord Cochrane had renewed his speculations through Fearn stock Ex- after the fraud, but before its discovery, and that he was, therefore, still in touch with the Stock Exchange. All his life Lord Cochrane had valued secret information. If we are to believe the pamphlet he pubHshed in 1847, he spent during the French war £2,000 on an intelhgence department of his own. I have no doubt he knew very well that the Stock Exchange were quite aware of the identity of Du Bourg when he boldly came forward with his affidavit of March 11. If De Berenger had escaped, it would have been almost impossible to have proved him to have been Du Bourg, and Lord Cochrane's declaration in the absence of further proof might possibly have been generally accepted as the correct version. But I cannot see why Lord Cochrane should have troubled himself to make an affidavit. At that time no punishment could be inflicted for perjury in a voluntary affidavit such as he then chose to make. The proper straightforward course would have been to have gone before the Stock Exchange sub-committee and submitted himself to cross-examination. To protect him- self he might, if necessary, have insisted that reporters or friends of his should be present. A letter to the press might perhaps have sufficed. However, he stated in his affidavit of June 14 that he arrived in London to the best of his belief on March 10. ^ See Law Magazine and Law Review, xi. p. 97. 64 THE GUILT OF LORD COCHRANE IN 1814 But from the endorsement on Admiral Surridge's letter it appears that he gave him leave on the 8th or 9th. The Moriiing Post for March 9 says that ' The Stock Exchange Committee have by invitation waited on Lord Melville, and it is understood that a noble lord, whose name has been frequently mentioned in the investigation of this business, was also requested to attend Lord Melville at the same time.' This throws some light on the probable contents of Lord Melville's unopened letter to Lord Cochrane. Lord Cochrane also tells us in his affidavit of June 14 that, ' conscious of his own innocence ... he without any communication with any other person, and without any assistance, on the impulse of the moment prepared an affidavit which he swore before Mr. Graham, the magistrate, on March 11.' The affidavit of March 11 is as follows : — ' Trial,' p. Having obtained leave of absence to come to town, in conse- ^^^' quence of scandalous paragraphs in the public papers and in consequence of having learnt that handbills had been affixed in the streets, in which (I have since seen) it is asserted that a person came to my house at No. 13 Green Street, on the 21st day of February, in open day, and in the dress in which he had com- mitted 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. March 11, 1814.' 13 Green Street. 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 of my daily practice of superintending work that was executing for me, and knowing LORD COCHRAN E\S AFFIDAVIT 65 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 10 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, from being written close from 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 my brother, I hastened back, and I 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 circum- stanced on account of a sum which he could not pay, and if he could, that others would fall upon him for full £8,000. 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). 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 honourable 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 any ^ In his affidavit sworn in Court on June 14, after the verdict of ' Trial,' p. the Jury, Lord Cochrane varies this slightly: 'When this deponent re- 664. turned home, he fully expected to have met an officer from abroad ^vith intelligence of his brother who had by letter to this deponent, received on the Friday before communicated his being confined to his bed, and severely afflicted bj'^ a dangerous illness, and about whom this deponent was extremely anxious.' 66 THE GUILT OF LORD COCHRANE IN 1814 where. I told him that the ward-room was ah-eady 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 when the Tonnant went to Portsmouth I should be happy to receive him. 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 the intention to go on board and make himself useful in his military capacity ; he could not go to Lord Yarmouth, or any otlier 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 laying 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 Capt. 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 afEairs. I have understood that many persons have called under the above circumstances, and have written notes in the parlour LORD COCHRAN E'S AFFIDAVIT 67 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 tjie Stock Exchange. 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 £139,000., which I bought by Mr. Fearn (I think) on the 12th ultimo at a premium of 28J, that I did not hold on that day any other sum or 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 was actually sold on an average at 29 J premium, though on the day of the fraud it might have been disposed of at 33|. I further swear that the above is the only stock which I sold of any kind on the 21st day of February, except £2,000. in money which I had occasion for, the profit of which was about £10. Further, I do solemnly depose that I had no connection or dealing with anyone 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. This affidavit was evidently published with the intention of proving that Du Bourg and De Berenger were not the same, and for the purpose of taking credit for being the f2 68 THE QUILT OF LORD COCHRANE IN 1814 first to publish the name of De Berenger as being the visitor to Green Street. It is very remarkable that there is no mention of a portmanteau, as later on one of Lord Cochrane's strongest points was that De Berenger had brought one with him, and had put his red uniform away in it, before Lord Cochrane had returned to Green Street. ' Remarks De Berenger was about 5 feet 6 inches in height. Lord of Lord Cochrane was 6 feet 2 inches. I cannot imagine a more p.°4a'^'^^' comic appearance than De Berenger in an Obadiah hat, Crane's Wearing Lord Cochrane's great coat, with a green coat in before"^ a towel in one hand, and a portmanteau containing a red stock Ex- uniform in the other, going to Lord Melville to ask for a change. . . ' o o For Lord commission to command sharpshooters. It would have Cochrane's been a scene for a farce. What chance did Lord Cochrane height, see ' Life of think De Berenger would have had in making such an donaid, "^'^' application while so strangely attired ? b^'^e'ieventh Amoug other things the affidavit states : ' The serva7it Earl. i. 66. told me it wtts from an army officer, and concluding he might he an officer from Spain.^ Now Isaac Davis, a former servant of Lord Cochrane's, afterwards stated in an affidavit published by Lord Cochrane previous to the trial, that he recognised De Berenger on his arrival. Furthermore, Dewman, the servant who • Trial,' p. fetched Lord Cochrane, said in his evidence at the trial that ^^^' Davis ' happened to be in the kitchen when the gentleman came.' The chances are a thousand to one that Davis told Dewman who the strange visitor was, and that even if Lord Cochrane could not read the name, or recognise the handwriting of the note that was sent to him, Dewman told him who the officer was, and that he knew very well whom he should meet on his return to Green Street. Feeling the want of some hterary assistance Lord Coch- rane now engaged as secretary a man named William Jackson. From the date of their first meeting in March 1814 until 1862 he may, I think, be looked upon as the villain of the piece as far as Lord Cochrane's affairs are concerned. His personal character is admirably depicted by his own evidence and letters, before the Commissioner ME. WILLIAM JACKSON 69 Privileges,' pp. 26-33. p. 4. sent to examine him by the Lords' Committee for Privileges in 1862. It would be scarcely possible for a man to paint himself in blacker colom-s. I shall reprint some of his ' vviiiiam evidence in a later chapter. When his employer died he Evldencif endeavoured to blackmail his successor by threatening to ^^^°^^ ,.- ° Conimis- publish his old friend s letters, and when under examination sioncr sent he denied that he had received money for giving his evidence, nnttoo of until confronted by his own handwriting. When on oath as a witness in 1862, Lady Dundonald said : ' I always despised the man, and look upon him as the greatest enemy my husband ever had in life, the ruin to his purse and character. — Alas, Lord Cochrane had much more confidence in him than he deserved.' Much of the so-called ' Autobiography of a Seaman,' and most of the libels on Lord Ellenborough, rest on a William Jackson basis. I may add that Lord Dundonald in his will left £100 to this ' steady friend and former secretary.' William Jackson had been a clerk in Doctors Commons and had written a poem called ' The Eape of the Table ; or Ten Honest Lawyers,' referring to Lord Cochrane's proceedings in connection with the Prize Court at Malta. A correspondence began which lasted until 1860. In January 1814 Lord Cochrane wrote to him as follows : I rather think that I shall accept the command of the New- castle, one of the new 50-gun frigates, as my uncle Sir Alexander Cochrane is desirous I should go with him ; I hope however that as the poem you have had the goodness to write on the subject of Lord Gambier's trial (' The Gambyriad ') is so nearly finished that I shall be able to carry some of the copies with me to America, where the ' essence of all evidence ' has obtained the situation of Master Attendant to Halifax Dockyard. The printer will begin whenever you find it convenient to furnish him with the materials. This * essence of all evidence ' was Edward Fairfax, who had been Master of the Fleet in Basque Eoads. He had given evidence displeasing to Lord Cochrane at the court-martial, and that officer evidently meant to worry his junior in a manner unworthy of a flag-captain. 70 THE GUILT OF LORD COCHRANE IN ISM ' W. Jack- son's Evi- dence,' p. 6. Jackson had applied to Lord Cochrane to take him with him to North America and had gone down to Portsmouth in the hope of meeting him there, but finding that he was stopped by the affair of the fraud had returned to London, where Lord Cochrane engaged him as his private secretary. I have been unable to ascertain the exact day of the month on which William Jackson commenced his duties, so I do not know how much of the correspondence which took place in March 1814 that I am about to touch on was influenced by him, or whether he had anything to do with the preparations of the five affidavits therein referred to. CHAPTER V THE AFFIDAVITS OF LORD COCHRANE's SERVANTS On or about the 14th March the Lords of the Admiralty wrote to Atlay,p.40. Lord Cochrane through their secretary (John Wilson Croker) that T^'^ letter they had read the report of the Committee of the Stock Exchange served but together with his affidavit on the subject of the fraud, and that ^"^t^^"^^*^ having taken both into consideration they were of opinion that made future explanation was necessary. At the same time it had cochrane'3 become imperative to appoint an acting captain to superintend letters of the fitting out of the Tonnant and Captain Johnson a former first ^nd 22. lieutenant of Lord Cochrane's whom he had previously recom- mended for this very post in his letter of February the 5th, quoted above, went on board her on the 16th of March. The Hon. George Eden (second son of Lord Auckland) wrote « Journal of on the same day to his father, ' Lord Cochrane's defence is not ]'^^'^-^^^^' satisfactory, and still less so are those of Cochrane Johnstone 141. and Mr. Butt.' On the 15th Lord Cochrane wrote to Croker begging that he p.r.o. Cap. would move their Lordships to inform him on what points they °-^*^' ^^^*" required elucidation. To this Croker replied on the 17th that : ' As the case was become the subject of judicial or other investi- gation, their Lordships did not think fit to enter into any detailed examination or discussion of the several points which might require to be explained. On March 22 Lord Cochrane returned to the charge in an lud. 144. angry letter, in which he informed the Lords of the Admiralty through Croker, that he had employed himself in collecting information for the public, which my respect for their Lordships gives me full confidence they will consider. Their Lordships he said had virtually given judgment on ex parte evidence, and had superseded him in the command of his ship on no better foundation than declarations retailed from pot-houses and such like places by persons not on oath, which declarations, given in 71 72 THE GUILT OF LORD COCHRANE IN 1814 the absence of the accused, were absurd and contradictory. ' It becomes me, Sir, whatever may be the decision of their Lordships, to neglect nothing that can throw light on this affair.' So far as related to himself, at least, he declared that the pretended evidence published by the Committee of the Stock Exchange was a tissue of misrepresentation from one end to the other, and means the most foul and detestable had been resorted to to asperse his character. If the points which required explanation were not yet satisfactorily refuted, and if anything yet remained unsatisfactory to the minds of their Lordships, he begged to repeat his request, that their Lordships would state these points specifically with as little hesitation as they did their opinion generally on the 14th inst., when they were pleased to add their decision that he could not sail in command of his Majesty's ship ' until the final and satisfactory termination of this business.' With this letter Lord Cochrane enclosed the five affidavits mentioned in the next paragraph. Croker acknowledged it on the same day, referring him to the letter of the 17th, to which their Lordships did not think it necessary at present to add anything except on one point, which being unconnected with the transaction of the Stock Exchange they felt themselves at liberty to observe upon : Your Lordship states that as the case now stands, their Lordships have virtually given judgment on ex parte evidence and superseded you in the command of your ship. Now my Lords had hoped that your Lordship would have been sensible that so far from giving judgment and superseding you in the command of the Tonnant, my Lords had treated your Lordship with all possible attention and delicacy ; your lordship had leave of absence granted to you on the application of a near relative, to enable your Lordship to come, if you should choose to do so, to town for the purpose of taking such measures as you might think proper on the subject of the Stock Exchange Eeport but as his Majesty's service could not be permitted to stand still on account of your Lordship's absence from the ship, an acting captain was appointed to her, and the choice of the officer so to be appointed was left to your lordship. [{THE [AFFIDAVITS OF THE SERVANTS 73 There were five affidavits enclosed with Lord Cochi-ane's letter. If we are to behave the statement made by Messrs. Law Maga- Farrer, Lord Cochrane's sohcitors, three of them were Laio Review, prepared in the following manner. One of their clerks ^°^ ^''" was employed by him in Green Street from half-past two until a quarter to six on March 20 ' in writing hy his Lordship's '"^^^ dictation from minutes or payers that he had before him (hut not in the presence of the ivitnesses) , four affidavits to be sworn to hy Thomas Dewman, Mary Turpin, Isaac Davis, and Sarah Colton (otherwise Busk), his servants, and afterwards in making copies of the affidavits for his Lord- ship.' That next day the same clerk accompanied Thomas Dewman, Mary Turpin, and Isaac Davis to the Mansion House and got the affidavits sworn, Davis having previously read over his own affidavit, Thomas Dewman and Mary Turpin having theirs read to them. Sarah on this occasion appears to have avoided making one. This method of preparing affidavits second-hand is not ' Trial,' one likely to conduce to their accuracy, and the statements ^' afterwards made, that Lord Cochrane neglected his own defence, is not in accordance with the employment of a solicitor's clerk from half-past two to a quarter to six. Dewman, who had been seventeen years in the Dundonald family, swore that ' the officer who sent me to the city wore a grey regimental coat buttoned up ; I saw a green collar underneath it ; he had a black silk stock or hand- kerchief round his neck ; he was of middle size and rather of a dark complexion,' and that ' he never saw any person dressed as described by Crane, the hackney coachman.' At the trial Dewman stated that Isaac Davis 'happened to be in the kitchen when the gentleman came.' As Isaac Davis knew De Berenger, it is more than probable that he imparted his knowledge to his former fellow servants. Davis swore De Berenger ' had on a grey great coat, buttoned, and a green collar under it. I knew him having seen him when his Lordship lived in Park Street.' Mary Turpin swore that ' the said officer had on a great 74 THE GUILT OF LORD COCHRANE IN 1814 coat and a sword, and that his under-coat or his great coat had a green collar to it.' Now it will be noticed that none of these servants swears to the colour of De Berenger's coat, but only to that of the collar. In those days the collars of uniforms were worn much higher than they are now and were much more con- spicuous. An examination of contemporary pictures will moreover show that they were, almost without exception, of a different colour to the coat. Though Thomas Dewman was called as a witness at the trial. Lord Cochrane's counsel never ventured to ask him a single question about De Berenger's costume. Isaac Davis was allowed to leave England with Admiral Fleming in H.M.S. Eurotas at the end of April, and Mary Turpin was not called as a witness. Had they been examined they would probably not only have been examined about the clothes De Berenger wore, but about the conversation with him, and concerning him, which took place in Green Street, and also as to the manner their affidavits had been prepared. One of the other affidavits was to the effect that Messrs. •Binns had not sold foreign coins to Lord Cochrane ; and the fifth affidavit stated that Lord Cochrane had been at Mr. King's tin manufactory in Cock Lane, Snow Hill, superintending a patent lantern between ten and eleven a.m. on the 21st. There is also a letter from Messrs. Farrer among the Admiralty records dated April 7. It has an endorsement in Mr. Croker's handwriting, saying that it was not answered because at the time it was received the affair was the subject of legal discussion. Messrs. Farrer state that Lord Cochrane had consulted them as to what proceedings he ought to take against the Stock Exchange sub-committee, and that under his lord- ship's direction they had stated a case for the opinion of Mr. Adam and Mr. Gurney. Messrs. Adam and Gurney dismissed as impracticable any procedure by way of indictment or criminal information. As regards an action for hbel they wrote : STOCK EXCHANGE COMMITTEE AND LORD COCHRANE 75 The Committee of the Stock Exchange had framed their report with great caution, so as to avoid prosecution or action ; they had abstained from making observations, and had merely referred to what they called depositions, which did not in them- selves contain libellous matter, but merely stated certain circum- stances, some of which were undoubtedly true, and were admitted by Lord Cochrane. If therefore he were to commence an action against the members of the Committee for a libel, they would plead the truth of what they stated, and would be entitled to show by evidence or have it inferred from argument, that this publication was not a libel on Lord Cochrane. Under these circumstances, as well as from the facts of stock- jobbing^ being admitted, counsel considered the difficulties in proceedings effectually by action to be insuperable, as under the existing circumstances neither adequate damages nor even a verdict could be insured. For these reasons they could not recommend any legal proceeding to Lord Cochrane, and were obliged to view this case as one of that class where injury has been suffered to which no legal redress is applicable, and to recommend it to Lord Cochrane to submit these legal difficulties to his superiors, that they by satisfying themselves of his moral innocence might take such steps as their wisdom might suggest. ^ Time bar2;ains were then illegal. J I'' h: 1^ CHAPTER VI THE PAMPHLET CALLED ' CALUMNIOUS ASPERSIONS ' In the meantime the other conspirators had not been idle. On March 14 the Hon. Cochrane Johnstone wrote to the Stock Exchange Committee stating that the gains made on February 21 had been grossly exaggerated by the public press, and pledging himself to prove that the whole profits were as follows : — Lord Cochrane ..... £1,700 Mr. Butt 1,300 Mr. Cochrane Johnstone . . . 3,500 Total .... £6,500 A week later, on Tuesday, March 22, he solemnly declared his innocence from his place in the House of Commons, and declared that it was his intention to publish a state- ment which would fully confirm this declaration. In the meantime the Stock Exchange Committee had come to the conclusion that it would be better not to cancel the bargains made on the day of the fraud, but instead of so doing to take an account of the profits made, and to cause the money to be paid into the hands of independent trustees to await the results of further investigation. It was reported by the Committee that the profits were as | follows : — £ s. d. Lord Cochrane . 2,470 Mr. Butt . 3,048 15 Mr. Cochrane Johnstone . . 4,931 5 f I £10,450 76 LORD COCHRANE'S PAMPHLET 77 It will be seen that their calculations differed from those of i\ri-. Cochrane Johnstone. Mr. Butt brought an action against Mr. Best, one of the trustees, with whom tho Stock Exchange had lodged the suspended balances of £10,450, sent out a writ, arrested him, and held him to bail. An attempt was made to terrorise all the members of the Stock Exchange who had made time bargains. A cabinet-maker, Isaac Donithorne, who was afterwards a witness at the trial brought 135 ' qui tarn ' actions against members of the Stock Exchange to recover penalties under Sir John Barnard's Act passed in 1737. The Cambridge Chronicle of April 22, 1814, says : The serving of a number of qui tarn actions considerably- interfered witli the business of the Stock Exchange. On Friday 160 qui tarn writs were served on different brokers and speculators for time bargains. On Saturday an attempt was made to serve as many more, and it is said 150 were served. Between March 26 and April 8 a pamphlet appeared ' entitled ' The Calumnious Aspersions contained in the Keport of the Sub-Committee of the Stock Exchange exposed and refuted, in so far as regards Lord Cochrane, K.B. and M.P., the Hon. Cochrane Johnstone, M.P., and R. G. Butt, Esq., to which are added under the authority of Mr. Butt, copies of the Purchases and Sales of Omnium and Consols, referred to in the Report of the Sub-Committee.' I date the pamphlet as above because there is mention in it of the discovery of De Berenger's clothes which was pubhshed on March 26, and no mention is made in it of De Berenger's arrest which took place on April 8. This pamphlet ran through at least four editions and was pub- lished at 2s. Q>d. Though it has generally been called Mr. Butt's pamphlet, Lord Cochrane has admitted, in his ' Letter to Lord Ellen- borough ' ^ (at p. 91) that he had it pubhshed. I think that I can trace the pen of William Jackson p. is of in the composition of this pamphlet, which w^as apparently rane-Butt' written to ' convince the most superficial reader of the pamphlet. ^ See also Mr. Wright's evidence, Trial, p. 200. 78 THE OVILT OF LORD COCHRANE IN 1814 ' w. Jack- non-identity of the pretended Du Bourg with Captain dence.'^'^'' De Berenger,' and, as we shall see, he told the Commissioner f ^^^' fL who examined him in 1862 that he wrote the ' Letter to 19 and 32. Lord Ellenborough. The object of the ' Calumnious Aspersions ' was also to try to prove that the purchases made on February 17, 18, and 19 were only part of a large speculative account that had been running all the month, and that the clearance sale on the 21st had been the result of general instructions to sell at a profit. There are thirteen voluntary affidavits printed in the Appendix. The first, second, and third are those of Dewman, Davis, and Mary Turpin, The fourth is a second affidavit of Mary Turpin's and does not touch on De Berenger's costume. The fifth is the one referring to Messrs. Binns and the foreign coins, and the sixth is that of Mr. King the tinman, to which I have already alluded. The seventh is one by Christmas, saying any appearance of hesitation in answering questions when before the sub-committee of the Stock Ex- change was due to his being only seventeen years of age, &c. The eighth was by a Mr. Butler, who only says that he saw Mr. Butt changing some notes on February 19, in presence of some other people. The ninth and tenth are those of WilHam Smith and his wife, who perjured themselves both in their affidavits and at the trial, by saying that De Berenger was in London, when in reality he was at Dover ; Smith said at the trial that he drew up this affidavit merely to vindicate his master's character, and not in concert with any one, but at the same time directly he had drawn it up he took it to Cochrane Johnstone to be pubHshed. The eleventh and twelfth affidavits only state that there was nothing unusual in Mr. Cochrane Johnstone and Mr. Butt's being in the city as early as ten o'clock, which I can easily beheve. The thirteenth was that of Adams the hackney coach- man, who had driven the Cumberland Street breakfast party eastwards on February 21. He swore that when the carriage got to the bottom of Snow Hill I put down one of the gentlemen who I believe was Lord Cochrane and took the other two to the Royal Exchange. 4 ARREST OF DE BERENOER 79 That Adams was not called at the trial by the defence may- be taken as showmg that that in all probabihty his evidence could not have stood cross-examination, and that his affi- davit was untruthful. These thirteen affidavits had already been published in Cobbett's ' Pohtical Register,' and Cobbett had pointed out to his readers the absurdity of supposing that De Berenger and Du Bourg could have been the same. On March 23 or 24 a waterman named Odell fished up a • Trial,' pp. bundle of clothes while dredging in the Thames off the JjochrlnT-'^ Old Swan Stairs, and brought it to the Stock Exchange ^,"" p^^"- ^ . ^.-", . . ° phlet, p. 13. Committee. It contained a scarlet regimental coat cut into small pieces, an embroidered silver star, and the silver badge of an order. These fragments were identified by a Mr. Solomon from whom De Berenger had bought them. But on April 8 the conspirators received their hardest blow. De Berenger was arrested at Leith. Notes that he had cashed at Sunderland, part of the produce of a cheque of Lord Cochrane's, had put the authorities on his track. He was brought to London on the 12th, and shortly after- wards he found himself securely lodged in Newgate. His writing-desk was found to contain a quantity of memoranda, a number of one-pound notes, part of the produce of a cheque of Lord Cochrane's, and some napoleons — all of which were seized and detained. On April 12 Mr. McEae wrote a note to Mr. Cochrane Johnstone saying that the bearer of his note would tell him the terms on which he would lay before the public the names of the real authors of the fraud. On the same day Mr. Cochrane Johnstone forwarded the McRae note to the Chairman of the Committee of the Stock Exchange, with a letter saying that McEae's price was £10,000, and that he himself was ready to contribute hber- ally towards that sum. He received no reply, and on April 18 he wrote again to the Chairman saying that Lord Cochrane, Mr. Butt, and himself were wilhng to subscribe £1,000 each towards the £10,000 demanded by McEae. This communication also remained unanswered. It can only be looked upon as an attempt to draw off attention from the 53 80 THE OUILT OF LORD COCHRANE IN 1814 De Berenger part of the plot, and to concentrate it upon McEae, with whom they were not connected by evidence as direct as that which connected them with De Berenger. Trial,' p. Mr. Butt also wrote to the Moriiing Chronicle saying, ' your astonishment will cease to exist when you see in what manner Captain De Berenger became possessed of the notes in question.' p. 157. In the meantime Holloway and Lyte admitted their share in the underplot before the sub-committee of the Stock Exchange, in the hope that they might not be pro- secuted. They denied, however, any connection with Lord Cochrane, Cochrane Johnstone, or Mr. Butt. CHAPTEE VII LORD COCHRANE AND HIS SOLICITORS On April 27 an indictment for conspiracy was preferred The date is before the Grand Jury for the City of London, at the Sessions lotiTin^ the House in the Old Bailey, against De Berenger, Lord Cochrane, t^g"r^j.j°/ Cochrane Johnstone, Butt, Sandom, M'Kae, Holloway, and but refer' Lyte. A true bill was found on the same day, and the contem- indictment, as was usual in misdemeanours of importance, presa'^'Ihows was removed at the instance of the prosecutors into the that it was ^ the 27th. Court of King's Bench. As this was one of the hardships complained of by Lord • Remarks Cochrane, it should be pointed out that in the county of °" Lord**^ Middlesex there were two grand juries : one in the Court of Cochj-ane,' King's Bench, and another at the Sessions for the county, Atiay, p. at either of which indictments might be found. Those which were found in the King's Bench were of course tried there ; indictments for felony were obliged to be tried there, but with misdemeanours there was no such necessity, and in a case where there were several defendants it was usual for the prosecution to remove the indictment into the King's Bench. So far from this being a disadvantage to the defendants. Speech of 1 n ■ 1 T mi 1 1 J. the Attor- it was a benencial proceeding, ihey were able to appear ney-Generai at the trial by attorney instead of in person ; they were j^^^^tL^sss.' spared the degradation of the dock, and in the event of an adverse verdict, instead of sentence being immediately pronounced there was an interval of some days before judgment was moved for, during which they remained at liberty ; and moreover, they had the right, enjoyed by defendants in no other criminal proceedings, of applying for a new trial. 81 o 82 THE GUILT OF LORD COCHRANE IN 1814 Atlay, pp. The indictment seems to have been formally removed 64 and 204. ^^ ^j^^ 29th of April, and on the 7th of May, De Berenger, who was in custody on a further charge under the Alien Acts, and for whom bail was refused, pleaded to it ; the others apparently pleaded by attorney without appearing personally. The plea in each case was ' Not guilty.' The next process was the striking of the special jury before the Master of the Crown Office. For this purpose forty-eight names were taken by the Master from the book of merchants produced to him by the Sheriff of London, and in case of suspicion of partiality it was open for either of the parties to apply to the Court of King's Bench for a new nomination. Each party then struck off twelve names, so as to reduce the panel to twenty-four who would be summoned to attend at the trial and be called in their order until the jury of twelve was constituted. At this ceremony at the Crown Office, Mr. Cochrane Johnstone was himself present, and he assisted at the reduction of the jury, nor is there any hint or suggestion that he took any ground of complaint. After the trial Lord Cochrane indulged in much invective against ' packed ' and ' special ' juries, which he alleged to be synonymous terms. When it is considered how much of the trial is taken up by complicated sets of figures, it will, I think, be evident how necessary it was for the elucidation of truth that the issues should have been submitted to men of education conversant with business transactions. The list of jurors will be found in its proper place and it contains names still recognised and honoured in the City of London. The trial was finally fixed for June 8, six weeks after the finding of the bill, and about four months after the com- mission of the fraud ; and it cannot be said that ample time had not been afforded for the preparation of the defence. Lord Cochrane, however, said in the House of Commons * that he took no care to prepare his defence being so conscious of his innocence, that he never read his brief, gave any instructions or attended a consultation.' He also said to the electors of Westminster : I stated in the House of Commons, I gave no instructions to counsel, and attended no consultation. I now see the folly of this negligence : for if I had personally attended to my interests LOBD COCH BANE'S INSTRUCTIONS TO HIS SOLICITORS 83 and conferred with my advocates on the subject, I have no doubt I should have convinced them of my innocence. That he took no care to prepare his defence is, how- ever, contrary to fact. In writing to the Secretary to the Admiralty on March 22 he said : ' It becomes me, Sir, whatever may be the decision of their Lordships, to neglect nothing that can throw light on this affair.' But if he gave no instructions to counsel, he at any rate gave written instructions to his solicitors which are to be found in the Appendix to his ' Letter to Lord Ellen- borough,' and at p. 430 of the second volume of the ' Auto- biography.' They occupy a page and a half of print. The February number of the Law Magazine for 1861 contained an article on Lord Cochrane's Trial and on the ' Autobiography of a Seaman.' The writer accepted as true most of the statements contained in the latter work, and therefore came to the conclusion not only that Lord Cochrane was innocent, but that his conviction had been due to the carelessness and incompetence of his solicitors, the Messrs. Farrer. But Messrs. Farrer did not sit still under this accusation. They brought direct evidence consisting of letters from Lord Cochrane, his bill of costs, and notes taken at the time, to prove to the reviewer that his charges were baseless, and they were retracted accordingly. In the next number of the magazine they showed that — On the 9th of May, there was an attendance upon Lord Cochrane for the purpose of pointing out the evidence which would be required. On the 10th of May, the whole morning occupied on the evidence with Lord Cochrane. On the 12th of May, the servants' evidence was read over to Lord Cochrane, when he made an alteration in that of one of them. On the 23rd of May, the rest of the examinations were read over to him. On the 7th of June, the evidence was again read through with Lord Cochrane, who was informed that counsel was of opinion that no witnesses should be called. And the same G 2 84 THE GUILT OF LORD COCHRANE IN 1814 day arrived a letter from him, desiring that Mary Turpin's statement that De Berenger's coat was red should be expunged from the brief. And during the progress of the trial on the 8th and 9th of June, he also wrote on the subject. This is corroborated by the following statement con- tained in a note at p. 456 of the second volume of the ' Autobiography.' From an item in my solicitor's bill dated June 6, only two days before the trial, I extract the following — ' Attending a consultation at Mr. Sergeant Best's chambers, when your case was fully considered, and all the counsel were decidedly of opinion that you must be defended jointly with the other defen- dants ; and the counsel recommended your servants being in attendance on the trial, although they remained of opinion that neither they nor any other witness should be examined on your part.' In a subsequent item, dated June 7th, I am repre- sented to have acquiesced ; not however in the non-examination of my witness but in the joint defence. ' Life and Brougham, who was one of the counsel for the defence, Times of wrote as follows to Lord Grey on July 21, a month after the Brougham,' trial '.■ ii. 238. They begin now to throw the blame on George Ponsonbv and Whitbread, who without having seen the evidence, ane? ignorant of the whole subject had the incredible folly to blame the counsel for not calling the witnesses. The history of pre- Italics in sumption offers no greater instance, we had too good reasons for the original. ^^^ calling them, and were I to-morrow to conduct it, I should after the benefit of their advice still refuse to call any of them and so would all the profession. I think it quite clear that had the servants been called and cross-examined as to the manner that their affidavits had been prepared, Lord Cochrane might have been indicted for subornation of perjury. His counsel could not allow him to run this risk. The question of a joint defence was also anxiously con- sidered. To my mind it has always lain in a nutshell. Had he been innocent he would have been defended separately with success, as however he was guilty, he had to be defended THE QUESTION OF JOINT DEFENCE 85 with the others. Their separate defences -would have been mutually destructive. They could not shake themselves clear of one another. Mr. Parkinson of Messrs. Farrer's firm had consultations as follows : — 10th May, — with Mr. Adam who suggested a separate defence. Vol. xi, 16th May, — with Mr. Scarlett, who hesitated as to which was M^,azine, the better course. P- i^*^- 24th May, — with Sergeant Best and Mr. Brougham who recommended a separate defence. 26th May,— with Sergeant Best, Mr. Scarlett and Mr. Brougham, when all advised a joint defence. 27th May, — with Sergeant Topping who concurred in the last recommendation. 1st June, — with Sergeant Best who on reconsideration was still of opinion that a joint defence was preferable. 6th June, — with Sergeant Best, Messrs. Topping, Scarlett and Compare Brougham, when all the learned counsel (it then being two graphv.Mi. days before the trial, and the last opportunity of altering the 466 and * ... tUtTd ultimate decision) finally advised a joint defence. p_ 304, After such evidence as the above as to the anxious considera- tion of which course it was the best to pursue, all statements of neglect are flagrantly absurd. The above dates and particulars cannot be impeached, because they came from entries made by Mr. Parkinson day by day as the events occurred, and before any notion of Lord Cochrane's attack upon his Solicitors was con- ceived. Further Lord Cochrane had all these dates and facts stated to him in his Bill of costs and he never challenged them. /"./>«. p. 304. Those who in future believe that Lord Cochrane and his solicitors neglected his defence in 1814, must also believe that a representative of Messrs. Farrer was capable of defending an attack on his firm by means of a series of forged documents in 1861, a supposition I cannot entertain for a moment. It is almost incredible that a man of Lord Cochrane's astute- Atiay, ness and acumen should not have realised the gravity of the charge, or the very compromising nature of the evidence already disclosed against him. He was no fresh unsophisticated young sailor suddenly confronted with a set of land sharks. He was 86 THE GUILT OF LORD COCHRANE IN ISM Hansard, xxviii. 560 ' Remarks on the case of Lord Cochrane,' p. 28; Lord Cochrane'a own state- ment, Hansard, xxviii. 559, et seq. ' Remarks on tlie case of Lord Cochrane,' p. 29. nearly forty years old, lie had been spending the last five years on shore, and, indeed comparatively little of his time had been spent afloat ; he was a man about town, widely known, and with an enormous circle of acquaintance ranging from the rough electorate of Westminster to the highest in the land ; he was a member of Parliament, a ' plunger ' on the Stock Exchange. If deaf and blind himself to the peril in which he stood, had he no one to warn him or to point out the necessity of leaving no precaution untaken ? In the depositions published by the Stock Exchange, con- nection with the fraud was brought home to him more closely than either to Cochrane Johnstone or Mr. Butt. Satisfactory as the explanation of De Berenger's visit given in his affidavit might appear to himself, it could hardly have that effect universally, and he knew it had not been accepted by the Lords of the Admiralty ; subsequent events the finding of the missing uniform and the arrest of De Berenger with the compromising bank notes on him had done nothing to allay suspicion. One thing, however, we know on his own authority, and that is that he was acquainted with the contents of De Berenger's brief, a copy of which had been shewn him by Cochrane Johnstone, and with the alibi, which it was proposed to set up at the trial in order to prove that De Berenger could not have been the pretended Du Bourg. Now considering what that brief was ; that it consisted of an alibi, to be sustained by perjury : that Mr. Tahourdin, the attorney for Mr. Cochrane Johnstone was also attorney for De Berenger, that the scene of this alibi was laid at Donnithorne's the uphollsterer, and plaintiff in one hundred and thirty five ' qui tam ' actions for penalties against members of the Stock Exchange, Lord Cochrane must have had as much credulity as he hopes to find in the rest of mankind, if he did not perceive the gross false- hood and wickedness employed in the fabrication of that brief. But in point of fact Lord Cochrane and his partisans en- deavoured in vain to separate him from his Uncle and De Berenger. The guilt of one is the guilt of all ; the defence of one was the defence of all. Had the first scheme of smuggling De Berenger out of the kingdom succeeded, all would have been safe, and the money given to him would have been well employed. Du Bourg being unseen, no certainty that De Berenger was the person who travelled from Dover would have been attainable : and then his visit to Lord Cochrane however extraordinary DU BERENOER OR DU BOURO 87 would only have been suspicious : the silly cavils about a red or a green dress would have had their effect : and in spite of absurdity the idle narrative sworn to by Lord Cochrane would have been believed and rendered current by those who favour all delusions about a [popular] individual. The affidavit is framed almost for the sole purpose of proving De Berenger could not be Du Bourg ; and before De Berenger was apprehended, two of his servants swore to his having slept at his lodging, when he was really at Dover. As we have already seen, these perjured affidavits were 'Letter to printed in the pamphlet which Lord Cochrane published borough,' when he thought that De Berenger had left the country. ?• ^^• Brougham had written from Lancaster to Lord Grey, on March 12, the day after Lord Cochrane swore to his affidavit : Of the Cochrane case I know nothing except that I have received general retainers from the respective parties ■ Life and within the last three or four days apparently in contem- ^oTd^ ° plation of some proceedings in a high tone. Who is implicated Brougham, I can't say except as I see in the newspapers Yarmouth and Lowther were at first much talked of. ii. 198. The trial came on, as we have said, on the 8th of June a Atlay, Wednesday. It was held at the Guildhall before Lord Ellen- ^' ' borough, Lord Chief Justice of the King's Bench. The Court sat at nine and was crowded to its utmost limits. De Berenger was there in custody ; whether the other defendants were present does not appear, but we know that Lord Cochrane was absent, and he says that he spent the day looking after his lamp patents. CHAPTER VIII LORD CHIEF JUSTICE ELLENBOROUGH Of the presiding judge Mr. Atlay has written as follows : — Atlay.p.63. Edward Law, first Baron Ellenborough, like the vast majority of those who have risen to high judicial office, owed his advance- ment to his own great abilities and indomitable industry rather than to birth or aristocratic connections. Born in 1750, he was the fourth son of the Bishop of Carlisle, himself the son of a small country clergyman. Educated on the foundation of the Charterhouse, of which school he became captain, he proceeded to Peterhouse, Cambridge, and after an arduous and brilliant career graduated as 3rd Wrangler and Senior Chancellor's medallist, in days long before the institution of the Classical Tripos. He adopted the profession of the law to which he brought a great natural aptitude, and he preferred to undergo the drudgery of special pleading below the Bar rather than enter incompletely equipped on his career, and consequently it was not till 1780, when nearly thirty that he was called and joined the Northern Circuit. Here his success was rapid. To a sound knowledge of law and especially of the minutiae of pleading and evidence, he united great powers of speech and conduct, and a style of advocacy uncompromising but convincing. For the first seven or eight years, however, he made little headway in London, and it looked as though his would be the fate of so many men at the Bar whose celebrity has been purely local, and who, like Antaeus, have only put forth their full strength when in contact with their native soil. In 1788, just after Law had obtained the rank of King's Counsel, there came, with the impeachment of Warren Hastings, the grand opportunity of his life. His connection with India was threefold : an elder brother Ewan had for many years 88 I THE DEFENCE OF WARREN HASTINGS 89 served the East India Company with great distinction, earning • a Naval for himself the glorious title of ' the just judge,' a sister was j^J^oj^ '" married to Sir Thomas Kumbold, and another brother, Thomas War.' Law, was also in the service of the East India Company. Edward ^ ar-iam). Law's great abilities were brought to the notice of the illustrious accused, and hence it was that a comparatively unknown counsel little heard of in London, was chosen to play a leading part in the most famous State trial of our annals, and to measure himself with the most brilliant speakers of the Augustan age of Parlia- mentary oratory. Fox, Burke, Sheridan, Grey and Windham had been selected by the Commons to conduct the impeachment, and it was in years of perpetual conflict with such adversaries as these that the future Chief Justice gained his reputation. Un- equal as the conditions must have appeared, it was not long before his iron inflexibility and unsparing determination began to produce their effect. When once the rhetoric of Burke and Sheridan had lost its glamour, and dry matters of fact and detail and evidence were reached, the trained superiority of the lawyer began to manifest itself. After a trial of portentous length, Warren Hastings was acquitted, and it was recognised how large a share in his success was due to his advocate. So far none of his success had been connected with politics. The son of a Whig Bishop of somewhat latitudinarian views, he was looked on coldly by Pitt ; and his fierce struggles with Fox and the other Whig leaders during the Hastings impeachment had estranged him from the party to which he belonged by con- viction and family association. After the French revolution broke out he had gone with that section of the party which followed Burke and the Duke of Portland, but he took no part in politics, and did not attempt to enter Parliament. When, however, in 1801, Pitt resigned and Addington was called on to form an Administration, he chose Law as his Attorney-General, and the latter accepted without hesitation. During his short tenure of office he rapidly achieved success in the House of Commons, and he discharged the duties of head of the English Bar with the same abilities he had displayed in the conduct of his private practice. His career as a law officer was short ; but as we have seen it included a prominent part in the movement for naval reform. In 1802, Lord Kenyon died, and Law succeeded by right as well as by merit to the office he was to hold for sixteen years. 90 THE OUILT OF LORD COCHRANE IN 1814 Atlay, p. 65. Towns- hend, ' Twelve Eminent Judges,' 299. 1. State Trials,' xxix. 1478. I am not writing a life or a panegyric of Lord EUeuborough, nor have I the presumption to venture on an estimate of him as a lawyer and a judge. This, I think, may safely be said, that he brought to the Bench the same painstaking diligence and the same sturdy independence that he had exhibited at the Bar. There have been more learned Chief Justices, there have been Chief Justices before whom it was more pleasant and easy to practise. He had many of the infirmities of a strong character, he was not free from impatience and irritability and he did not sufier fools gladly ; but no judge who ever sat upon the Bench sm-passed him in his zeal for justice or his detestation of meanness. It has been truly said of him that ' there are none who have worn the ermine with more unsullied purity, or borne the sword of justice with a firmer hand.' It may be added that no one has excelled him in the despatch of business or in the knowledge of the j)ractical work of his Court. He was no respecter of persons, and entirely devoid of sympathy with those who warred against society and religion. But the circumstances of the time demanded a man of unbending strength of character. He had seen the oldest monarchy on the continent go down in ruin because her rulers lacked firmness and courage. An epoch such as that required qualities in a Chief Magistrate which are scarcely necessary in times of peace and order. Lord Ellenborough has been accused of political partisanship, as it seems to me, with no justification. That he was a supporter of order, and enforced the law unflinchingly against those who strove to overturn it, can hardly be adduced as an argument. His speeches in the House of Lords give ecpially little support to this contention. On one occasion, that of the seizure of the Danish Fleet in 1807, he took a strong line against the Government of the day, and his votes in the Melville impeachment were in constant opposition to those of Ministers, but his interference in debate was usually limited to the discussion of Bills affecting the legal profession. The one act of his career, when — following the precedent of Lord Mansfield in 1757 — he entered the Whig Cabinet of ' All the Talents,' formed by Fox in 1806 on the death of Pitt, which is supposed to have stamped him for ever as a politician, is explicable on other grounds. He joined the Government partly out of loyalty to Lord Sidmouth, and partly because in the ' delicate investigation ' which the Cabinet was then carrying on with regard to the Princess of Wales there was great need of THE CABINET OF 'ALL THE TALENTS' 91 another trained lawyer in addition to Erskine. Out of the sixteen years he sat on the Bench he was in the Cabinet just thirteen months, and the majority of his then colleagues were those who for the rest of his official career were in opposition. ^ That he was a member of the Cabinet at the time of Lord Cochrane's trial is merely one of the fairy-tales of the ' Autobiogi-aphy of a Seaman.' The fairy-tale in question however, and some others, have been frequently repeated by careless writers. Lord Ellenborough's own reasons for not refusing to join the Cabinet will be found in a letter to WilHam Wilber- force, at p. 125 of the private papers of that distinguished philanthropist. It is too long for me to reproduce, but ]\Ir. Atlay has reprinted the whole of it at p. 358. In this letter there is an expression of regret that he has had no opportunity ' of explaining more perfectly and unreservedly than I can do by letter all the motives which have induced my reluctant acquiescence in a nomination of myself to a place in the Cabinet.' This undoubtedly refers to the ' Dehcate Investigation ' into the conduct of the Princess of Wales. There was more at stake in this investigation than the honour of a lady, however exalted her rank might be. No one knew what had actually happened, or to what the investigation might eventually lead. Badly managed at the outset, it might have involved the next generation in a disputed succession, and possibly in a civil war. Mr. Wilberforce has described this letter as ' a very handsome answer.' I ought to add that this acceptance of a seat in the Cabinet was not accompanied by any increase of emoluments. Lord Ellenborough was not out of touch with the navy. He had married the daughter of a naval oi3&cer, who had been present at the capture of Quebec and had previously done some hand-to-hand fighting, when in H.M.S. Vulture. Lord Ellenborough's only brother-in-law. Captain G. H. 1 Lord Mansfield was in the Cabinet from 1757 to 1765 and Ellen- borough was in the Cabinet from^^February 1806 to March 1807. 92 THE GUILT OF LORD COCHRANE IN IS 14 Laughton'3 Life of Nelson. James's • Naval History,' ii. 289-91. Towry was in command of the Dido on the 24th of June 1795, when she and the Lowestoffe fought the Arternise and the Menerve, capturing the latter. This action drew warm praise from Nelson. The details of the fight are to be found in James's * Naval History.' That writer says of Captain Towry that ' his conduct was noble in the extreme.' He was senior to Captain Middleton of the Lowestoffe, and though in the smaller of the two, he chose the largest of the enemy's ships, and ' did not hesitate a moment in laying the Dido alongside a ship of nearly double her force.' Captain Towry afterwards commanded the Diadein at the battle of Cape St. Vincent. i i CHAPTEE IX THE TRIAL It is not my intention to deal with the trial at great length. That has been so minutely done by Mr. Atlay, and in such a spirit of thorough impartiality, that there are but few fresh crumbs left to be picked up by future writers, whether they be apologists of Lord Cochrane or not. I only propose to deal with its salient points as connected with such of the accused as did not confess their guilt. Now Lord Cochrane and Mr. Butt always declared their innocence, but I have not as yet found anyone unconnected with the trial who apparently believed in Mr. Butt's assertions, except Lord Cochrane. The fact is, Mr. Butt remained in England, and an open quarrel would have been fatal to Lord Cochrane. Mr. Cochrane John- stone left the kingdom, and I have not been able to lind that, after the trial, he ever said anything on the subject. I believe that his principal reason for flight was that he was hopelessly in debt and he had no wish to spend the remainder of his life in a debtor's prison, after the expiration of whatever sentence he might expect to have passed upon him. Thus Cochrane Johnstone was made the scapegoat, and Mr. Butt poured out upon him all the vials of his wrath. In 1860 Lord Brougham gave countenance to the theory that Lord Cochrane had sacriliced himself for the sake of his uncle. Lord Cochrane himself appears, however, never to have pubHcly adopted the wicked uncle theory, although he allowed others to advance it. His own theory is that he was convicted in consequence of the unscrupulous villainy of the Government, the prose- cutors, the prosecuting counsel, and of the Judge and jury, 93 • Butt's Trial for Libel,' p. 9. Letter dated March 29, 1844, ijuoted ill ' Autobio- graphy of a vSeamaii,' ii. 324. Letter in Timts after Lord Dundon- ald's death. 94 THE GUILT OF LORD COCHBANE IN 1814 who were assisted by the crass stupidity and negligence of his soHcitors and counsel, especially Serjeant Best, and also by means of perjured witnesses. The trial commenced at nine o'clock on June 8, 1814, and Mr, Gurney presented the case for the prosecution. Before describing his speech there are one or two points to which I must call attention. At that time the defence was allowed only one speech, and that before calling their witnesses, and if the defence called no witnesses, the pro- secution was not allowed a second speech. It was, therefore, frequently an advantage to the defence not to call any witnesses, so as to prevent the Judge and jury fi-om being influenced by the prosecutor's second speech, which would give him the advantage of the last word. Atiay. Until the evidence for the prosecution had closed, no one p. 80. knew whether witnesses for the defence were to be called or not. I think it is clear that the announcement that they were to be caUed was a surprise to most of those present. Another point that I must remark on is that the minds of the jury were already saturated with the details of the case. As city men the}'" had either heard of or seen the accounts that had appeared in the daily papers. They must consequently have known of the Stock Exchange investigation of Lord Cochrane's affidavits and of the pamphlet that he had published containing his servants' affidavits. Moreover, CohbeWs Weekli^ Register had aheady devoted several numbers to abuse of the Stock Exchange. Cochrane Johnstone had taken advantage of his member- ship to defend himself in more than one debate in the House of Commons. Besides the Cochrane-Butt pamphlet, De Berenger had himself suppKed materials for another pamphlet which was printed shortly before the trial, and Lord Cochrane, Cochrane Johnstone, and Mr. Butt had aU three written letters to various newspapers. Gurney began by pointing out that ' to circulate false news, much more to conspire to circulate false news with intent to raise the price of any commodity whatever, is by the Laws of England a crime,' and it had in this case MR. OUJRNEY'S SPEECH 95 been aggravated by the defendants having attempted to make ' the ofl&cers of the Government the tools and instruments of effectuating their fraud.' He said he would prove De Berenger to be the main instrument of the fraud, that he appeared at Dover a little after midnight on the morning of February 21. He announced himself as the bearer of glorious news from the Continent, ordered a post-chaise and four for London, which he offered to pay for with gold napoleons, but the landlord, not hking napoleons, was paid with one- pound notes instead. He gave napoleons to all his post- boys. In consequence of the news other expresses were ordered out, and Mr. Gm-ney said he believed that some of the expresses reached London half an hour before this person himself. Du Bourg sent the following letter by special messenger to Admiral Foley, the Port Admiral at Deal. To the Honourable T. Foley, Port Admiral, Deal, &c., &c., &c. Dover, one o'clock a.m. Februanj 21st, 1814. Sir,— I have the honour to acquaint you that the L'Aigle from Calais, Pierre Duquin, Master, has this moment landed me near Dover, to proceed to the capital with despatches of the happiest nature. I have pledged my honour that no harm shall come to the crew of the L'Aigle, even with a flag of truce they immediately stood for sea. Should they be taken, I have to entreat you immediately to liberate them. My anxiety will not allow me to say more for your gratification than that the Allies obtained a final victory ; that Bonaparte was overtaken by a party of Sacken's Cossacks, who immediately slaid \sic] him, and divided his body between them. General Platoff saved Paris from being reduced to ashes. The Allied Sovereigns are there, and the white cockade is universal, and immediate peace is certain. In the utmost haste, I entreat your consideration, and have the honour to be Sir, Your most obedient humble servant, R. Du Bourg, Lieut. -Colonel and Aide-de-Camp to Lord Cathcart. 96 THE GUILT OF LORD COCHRANE IN 18Ii] Mr. Gurney remarked that the haziness of the morning obstructed the working of the telegraph, and prevented the success of the conspirators from being complete. At Rochester, Dartford, and Bexley the sham colonel repeated his glorious news. Near the Marsh Gate he got into a hackney coach, the only one there, gave the post-boys a napoleon each and drove off. This was about nine in the morning. The Stock Exchange opened at ten and the funds began to rise. At twelve o'clock, as no letter came from the Secretary of State or the Lord Mayor, people began to doubt the truth of the rumours, prices began to droop, but revived again when a post-chaise and four with French officers, wearing white cockades, drove through the city with horses decorated with laui'el. On arriving near Marsh Gate, within one hundred yards of where Du Bourg had alighted, these three gentlemen got out of their chaise, folded up their cocked hats and walked off. On its being discovered that no messenger had arrived at the office of the Secretary of State, the Funds fell very nearly to their former level. Mr. Gurney also said 'Imi; ^j^^^ ^j^jg pg^j.^ q£ |.j^g pjQ^ could have had no effect but for the foundation laid by the appearance of the pretended officer at Dover, and his journey to London, for a post-chaise coming through the City with white cockades and laurel branches, would have had no effect except to excite laughter and derision, but for preparation made by De Berenger in the character of Du Bourg, and when you find for the purpose of producing the same effect, such a coincidence of plan, and such a coincidence of time, the one the basis, and the other the superstructure, although I shall not be able to prove all the parties meeting together, con- ferring together, consulting together, still it will be impossible to doubt that these are two parts of one whole ; that this is, in short, not two conspiracies, but one and the same conspiracy. Then he proceeded to point out that Lord Cochrane had only moved into his house in Green Street on the MR. GURNEY'S SPEECH 97 Thursday evening, and that Du Bourg must have been on intimate terms with Lord Cochrane to have known where ho resided on the Monday.^ In describing the speculations of the conspirators, Mr. Gurney remarked : ' Their purchases were the same, their sales were the same,' and these three persons having on the Saturday preceding this Monday a balance amounting in Consols and Omnium to nearly a million, which reduced to Consols amounted to £1,600,000, ' sold all they had, every shilling of it : and by a little accident in the hurry of this great business they sold rather more.' The sub-committee of the Stock Exchange had dis- covered that the principal agent of the confederates was ' Fearn a stockbroker, that Mr. Butt was the active manager ; that the directions for Lord Cochrane's purchases and sales were made mostly by Mr. Butt, and were recognized by his Lordship. On the morning in question, Mr. Cochrane Johnstone and Mr. Butt had come at an early hour in a hackney coach, and that Lord Cochrane, after having break- fasted in Cumberland Street with Mr. Cochrane Johnstone and Mr. Butt, followed. Lord Cochrane and Mr. Butt travelled in the same hackney coach, at least as far as Snow Hill.' . . . Mr. Fearn was not the only broker that they made use of ; ' they employed a Mr. Smallbone, a Mr. Hichens, and ' Tmi,' a Mr. Eichardson : they may have employed twenty others that we know not of,^ because it has only been by accident that the Committee learned the employment of Mr. Eichardson ' ; for Mr. Eichardson, not being a member of the Stock Exchange, the Committee had no control over him. Mr. Butt had endeavoured to induce Mr. Eichardson to purchase one hundred and fifty thousand on the Saturday, but Mr. Eichardson trembled at the idea of so large a speculation and only purchased fifty thousand. These three persons disburthened themselves of their tremendous balance on the Monday morning ' with a profit of a Httle more than ten thousand pounds. If the telegraph ^ He must have known where he resided on the Saturday, the day- he left London. * The italics are mine. H 98 THE GUILT OF LORD COCHRANE IN IS 14 Seo Coch- rane- Butt pamphlet, ' Cahimni. ous Asper- sions.' had worked, that [profit] would have been nearer a hundred thousand.' The sub-committee of the Stock Exchange had private information that Du Bourg was really Do Berenger, but, finding he was gone off, they did not refer to the subject, Cochrane Johnstone had also taken an office for the use of Mr. Fearn in Shorter's Court, Throgmorton Street, just by the side door of the Stock Exchange. This he indignantly denied, and said that the office was Mr. Butt's, but I am surprised tliat lie siiould dare to deny it when I have a contradiction not only by a witness but by a letter in his own hand. . . . Lord Cochrane felt that he must account for his visitor, and he chose to give it under the half and half sanction of a voluntary affidavit. I call it so, Gentlemen, for this reason, that although he who makes a voluntary affidavit attests his God to its truth, he renders himself liable to no human tribunal for its false- hood, for no indictment for perjury can be made on a voluntary affidavit. I Avish none of these voluntary affidavits were made ; I wish that Magistrates would not lend their respectable names to the use, or rather the abuse, which is made of these affidavits : for whether they are employed for a quack medicine or a suspected character, they are, I believe, always used for the purpose of imposition. Lord Cochrane's affidavit of March 11 {ante, p. 64) was then read, and Gurney commented on it. He then referred to De Berenger's alibi and stated that Lord Cochrane, Mr. Cochrane Johnstone, and Mr. Butt had published two affidavits of a man and a woman of the name of Smith, who were the servants of De Berenger. The affidavits are of the same manufacture with the others (i.e. those of Lord Cochrane and his servants published in the same pamphlet). ' Affidavits are commonly in the third person, " A.B. maketh oath and saith," ' but I observe all these affidavits, as well Lord Cochrane's as the rest, begin L A. B. do swear. Mr. Gurney "then read the Smith's affidavits, which were to the effect that De Berenger slept at home on Sunday VOLUNTARY AFFIDAVITS 99 night, February 20.^ (This was proved to be perjury at the trial.) At that time it was supposed that De Berengcr was safe out of the kingdom and that no contradiction of these affidavits could ever take place, and Mr. Butt demand(^d 'Trial,' pajnnent of his gains from the Stock Exchange Com- ^ mittee which they had impounded. On April 8, however, De Berenger was arrested at Leith. He was brought to London on the 12th, and was at once identified with Du Bourg ; and Solomon, an army accoutrement maker, not only identified him, but identified the clothes which he had p. 45. sold him, and which had since been dredged up from the Thames. Gentlemen, what now becomes of tliese afl&davits and those who made them 1 What becomes of the alibi for Mr. De Berenger ? What becomes of the affidavits of his servants, Smith and his wife ? What becomes of Lord Cochrane, swearing as he does to his green coat ? Why do persons resort to falsehood, but because truth convicts them ? . . . Will they put these persons whom they have made commit this moral perjury into that box and expose them to the charge of legal perjury ? If they do not put them there, they ' die and make no sign,' and if they do, I think I shall be able to shew you who manufactured these affidavits and how these servants the Smiths, have been dealt with. Then admitting that Du Bourg and De Berenger were the same, his learned friends might perhaps argue that if criminally connected with Lord Cochrane, De Berenger would not have been such a fool as to have gone to Lord Cochrane's house, but in all conspiracies there is some- thing omitted and the omission here was this : In settling their plan of operations, they had forgotten to provide where De Berenger should resort on his arrival in Town, and on his way his heart failed him as to going to his own lodgings ; he dared not enter into his own lodgings in a dress, which dress would lead to detection, and he therefore drove to Lord Cochrane's to ^ A month later, ^^ hen news came of the rupture of the negotiations at p. 436. Chatillon, tho premium on Omnium fell from 28 to 12. Had such news come on the 21st instead of the false news, the loss of the three defend ints would have been upwards of £160,000. h2 100 THE GUILT OF LORD COCHBANE IN 1814 get rid of his dress ; and there he by Lord Cochrane's assistance did get rid of it : he procured a round hat and a black coat, and then went confidently and safely home to his lodgings. . . . If Mr. De Berenger was the hired agent of these persons for the purpose of committing this fraud, what would you expect ? — why, that after they had used him they would pay him and send him away. I will prove to you, that they so paid him, and that they did send him away. He would prove that Cochrane Johnstone called on him on February 26, that he left a letter for him, and that De Berenger took his departure on the 27th. He then referred to a memorandum in De Berenger's writing, which I shall deal with in its place when given as evidence. He next proceeded to trace the origin of the notes found on De Berenger or in his desk. They were derived from a cheque for £479 19s. Ad., payable to Lord Cochrane, and cheques for £56 5s. and £98 2s. ^d., payable to Mr. Butt.^ Mr. Butt, in a letter to the Morning Chronicle, had said : ' Your astonishment will cease to exist when vou see in what manner Captain De Berenger became possessed of the notes in question.' He called on Mr. Butt to show by evidence that those notes came from some other quarter. Gurney concluded by saying that the prosecutors had ' had no personal difference with any of the defendants ; they had never come into collision with them, to have the smallest possible difference, and they have no wish but justice, and that the verdict would shew the world that as there is no man beneath the law so there is none above it.' ^ ^ In the report of the trial the cheque for £479 19s. Ad. is variously dated 10th, 16th, 19th, evidently the result of careless printing or writing ; the 19th, however, is the proper date. — Ed. 2 I may here remark that the non-appearance of a clerk named Evans on his subpoena, and the illness (whether real or feigned) of Mr. Wright, the landlord of the Dover Hotel, prevented Mr. Gurney from proving his case as regards the cheque for £56 5s. payable to Mr. Butt. The evidence before the Stock Exchange Committee showed that four one-pound notes paid away to Wright at Dover by Du Bourg had passed twelve hours previously from the hands of Messrs. Bond, the bankers, to those of Mr. Butt. Gurney also made a mistake and confused Lance, who M'as Smallbono's clerk, ^vith Christmas, who was * Trial ' f;2 ' Mr. Fearn's clerk — a slip which Lord Cochrane's advocate Best took full advantage of. p. 52. WITNESSES FOR THE PROSEQUTIO^- \ ■ • ; "IQl ' ' •' Mr. Gurney now proceeded to call witnesses. His first business was to prove the identity of Dn Bourg with De Berenger, but as that identity is no longer disputed it is unnecessary to go into the details of the evidence given to prove it. It is otherwise as regards the dress worn by De Berenger. For the purpose of assisting the witnesses, facsimiles ^^^^^^j of the uniform worn by De Berenger, and the actual clothes the house- themselves in a fragmentary state, were in Court also. Debates ^^^th the exception of the cap which had remained in Lord co°"^®o°^, . Cochrane's house. Green Street. To facilitate identification, March De Berenger was present, he being in custody for a violation . ^^.j^, , of the Alien Act in attempting to leave the kingdom without 58-84. permission. Lord Cochrane was not in Court, but whether Mr. Cochrane Johnstone or Mr. Butt was in Court is not clear. Four witnesses — Marsh, Gourley, Edis, and St. John — gave evidence of De Berenger's arrival at the Ship Inn at Dover, at about 1 a.m. on the morning of February 21. They all recognised De Berenger, and described the uniform that he wore when at Dover as being red or scarlet. Admiral Foley, who was in command at Dover, proved the receipt of the letter sent by the sham Du Bourg at about three in the morning, which he read in bed and afterwards sent in a private letter to Mr. Croker, Secretary to the Admiralty ; he questioned the boy who brought the letter, disbelieved the news, but would have telegraphed to the Admiralty had not the fog been too thick. Then Mr. Wright of the Crown Inn at Eochester and the post-boys who had driven De Berenger from Dover to Canterbury, Canterbury to Sittingbourne, Sittingbourne to Rochester, Eochester to Dartford, Dartford to London, were called. They had been paid in napoleons. One of them had sold his for a pound-note. Thomas Shilling, the Dartford post-boy, said that De Berenger told him the good news, and also told him not to hurry his horses, for his business was not so pai-ticular now since the telegraph would not work, and not to take any notice of the news as he went along. He asked where 102 THE GUILT OF LORD COCHRANE IN 1814 the first hackney coach stand was, and Shillmg told him at the Bricklayer's Arms. De Berenger said that would not do for that was too public. Then he asked, was there not one in the Lambeth road. Shilling said yes, but when they arrived at the Three Stags in that road there was no coach there. ' I ordered my fellow servant to stop, and I looked round and told the gentleman there was no hackney coach there ; but that there was a coach at the Marsh Gate, if he liked to get in there I dared to say nobody would take any notice of him. There was one coach at the Marsh Gate, and the gentleman stepped out of the chaise into the coach as they were close together. De Berenger pulled up the side- blind while in the chaise. ' He was dressed in a dark fm' cap with lace of some sort round it, with a red coat and a star underneath his outer coat, which apj)eared to be browTi.' •Trial' Mr. Eichardson cross-examined Shilhng with the view '^\utoiiio- o^ showing that he had received money for giving his graphyofa evideuce. Shilhng admitted that 'he had received five see note, 'pouuds from the gentlemen of the Stock Exchange towards p°35y his expenses. [This has been magnified into £52 by the writer of the ' Autobiogi-aphy.'] Shilling also stated that he had been examined at the Stock Exchange and before the Grand Jury, nowhere else. Richard Barwick, a clerk, had seen a post-chaise with four horses — ' it had galloped at a great rate, the horses were exceedingly hot,' and the man was getting into a hackney coach that the people told me came out of that chaise. He followed the coach as far as the Haymarket, as he wished to know the news ; then he gave up the pursuit as he had to go to his work at his ojffice. William Crane, hackney coachman, gave evidence to the effect that on the morning of February 21 he took a fare out of a Dartmouth post-chaise and four, and put him down at 13 Green Street. He had ' a bit of a portmanteau ' Trial,' witli him and a sword.' The portmanteau was ' a small P' ^^^' leather one big enough to wrap a coat in.' j\Ir. Adolplius, who examined him for the prosecution, never asked him CRANE'S EVIDENCE 108 a single question as to his passenger's dress. [If Crane, as is stated in the * Autobiography,' had been bribed by the prosecution to swear to a red coat, surely the prosecuting counsel would have brought out the colour of the coat in his examination-in-chief.] [Crane was the only witness at the trial who spoke about De Berenger's bringing this portmanteau to Green Street, which was made the most of by Lord Cochrane later on. Crane in reality was one of Lord Cochrane's best witnesses. The importance of his evidence has been much exaggerated, but as he has been accused of perjury by Lord Cochrane I have reprinted the whole of his evidence in the Appendix.] A waterman, Odell, deposed to finding the clothes while ' Trial.' dredging for coals in the Thames with a drag. He had '*' found it on March 24. The star was in half when picked up. p. 127. Mr. Wade, Secretary of the Stock Exchange, deposed that the star when received by him was in two pieces, but had been sewn together for the purpose of being exhibited, p. 128. Mr. Solomon gave evidence that he had sold, on Feb- ruary 19, a military great coat, and forage cap made of dark fur with a pale gold band, a scarlet staff coat, the uniform of an aide-de-camp with gold lace, and a star and badge, and the fragments before him appeared to be the same though discoloured by water. He had since had a cap or coat made as exactly like them as he could, which were also in Court. As regards the star, he had the very fellow star. The pm-chaser took them away in a coach and had a small portmanteau with him. He was told that they were wanted for a person who was to perform in the character of a foreign officer. He could not swear to De Berenger's identity. The Davidsons, with whom De Berenger lodged, then gave their evidence. Mrs. Davidson could not say whether pp. 132-8. De Berenger had slept in their house on Sunday night or not, but that her husband on Sunday morning called out to her that their lodger had gone out with a new great coat on. A gentleman had come with a letter on February 26 for De Berenger, and when Mrs, Davidson was taken by Mr. Lavie to see Mr. Cochrane Johnstone, who was super- 104 THE GUILT OF LORD COCHRANE IN 1814 intending the striking of the jury at the Crown Office, she recognised him, although she did not appear to be very- positive about him. P^m.' Lancelot Davidson, a broker's clerk, said that he had seen De Berenger at about eleven on Sunday morning wearing a new great coat similar to the one produced in Court, and that he had made a remark about it to his wife. thIi^'°'' He also said that he did not see anything more of De Berenger Morning until Monday afternoon. Now, it so happens that Davidson and Times, was mistaken as regards seeing De Berenger on Sunday 1816. ' morning, as it was proved in 1816 that De Berenger had gone down to Dover on Saturday night, so that it must have been on some other day. The rest of Davidson's evidence remains unshaken. I shall give an account of Davidson's trial in 1816 in its proper place. Mr. Gurney then brought witnesses to prove the under- plot of M'Kae, Sandom, Lyte, and Holloway. As Holloway and Lyte had already confessed, it is unnecessary to go into their evidence in any details, therefore I shall only mention that, as regards this portion of the evidence. Lord EUenborough pointed out during Mr. Francis Baily's exami- nation that ' the evidence of course can only operate against Holloway and Lyte who were there.' ' Trial," ^^^^ prosecution now proceeded to deal with Stock pp. 160-74. Exchange transactions. Mr. Joseph Fearn said that he had known Mr. Butt for several years and had been intro- duced to Cochrane Johnstone and Lord Cochrane by him, and that he was employed by them in February 1814. He had an office in Cornhill, and Mr. Butt had an office in Sweeting's Alley. That he saw Mr. Butt daily from February 12 to 19 at both offices, and that he was frequently in company with Mr. Cochrane Johnstone and Lord Cochrane. That when he did business for Lord Cochrane he sometimes took orders from him and sometimes from Mr. Butt, and that Lord Cochrane always recognised Mr. Butt's orders. On February 21 he had moved to No. 5 Shorter's Court, close to a side door of the Stock Exchange. Of the three rooms there, he had one and a small closet ; Mr. Butt had another upstairs with Mr. Johnstone and Lord Cochrane WITNESSES FOR THE PROSECUTION 105 and the ground floor was occupied by Mr. Lance, a clerk employed by them. Several friends of his for whom he did business thought the place convenient, so he asked to have the whole of it, which was arranged by Mr. Cochrane Johnstone. On the morning of February 21 ho first saw Mr. Butt and Mr. Cochrane Johnstone at his office at Cornhill at about ten. When asked if he was ' positive whether anyone else was with them,' he answered ' No, I think nobody else.' When the news arrived that Bonaparte was killed, Mr. Cochrane Johnstons and Mr. Butt were with him, but not Lord Cochrane. He then described the effect of the news on the Funds, and he put in some accounts of his sales and purchases. In cross-examination Serjeant Best said : ' I shall carry back the accounts considerably earher. If I put in accounts of an earlier date, it must not be considered that I am giving evidence by so doing.' This was assented to, and I have quoted Serjeant Best's remarks verbatim to show that at that time they had not yet decided whether to call witnesses or not, and so give Mr. Gurney the advantage of a reply. Under cross-examination and re-examination, Mr. Fearn stated that ' Mr. Butt managed principally very much for these gentlemen for Lord Cochrane particularly,' but that Lord Cochrane was not there on the morning of the 21st, and that on several occasions they had not all speculated the same way but on that day they all sold.^ ' Mr. Baily of the Stock Exchange said that their total gains were £10,450 as calculated from the accounts, and the proportion of each was for Lord Cochrane £2,470, Mr. Cochrane Johnstone £4,931 5s., Mr. Butt £3,048 15s.' ^ ^ Under Barnard's Act (7 Geo. II. c. 8) time-bar,s!ains were illegal. Barnard's Act was repealed by 23 & 24 Vict. c. 28. Some of' the Stock Exchange evidence is intricate. Mr. Atlay has reprinted it in fidl in the Appendix of his book. ^ It must be recollected, however, that had Admiral Foley been deceived and the telegraph had been workable, the rise would liave been infinitely greater and the profits would have been in proportion. Besides, we have no means of knowing how much they may have speculated with outside brokers. — Ed. 106 THE GUILT OF LORD COCHRANE IN 1814 Ante,p.d9. Ml*. Giirnej tried to get Lord Cochrane's affidavit put in as evidence, but Lord Cochrane's counsel would not produce it. Mr. Wright was called, and deposed that ' Lord Cochrane brought me that affidavit for the purpose of getting it inserted in the newspapers. Serjeant Best asked him : ' Trial,' Tell US what he said to you at the time ; did he not at the P' ^''**^" time when he was giving you directions to print it, say that if De Berenger was the man he had given the Stock Exchange the clue to it ? After reading the affidavit his Lordship said : I once met Captain De Berenger at dinner. Lord Ellenborongh. AVas this at the time ? Lord Cochrane said : I once saw De Berenger at Mr. Basil Cochrane's. I have no reason to think that Captain De Berenger is capable of so base a transaction, but if he is, I have given the gentlemen of the Stock Exchange the best clue to find him out. Mr. Gurneij asked : Look at that (shewing a pamphlet to witness) ; have you received one of those pamphlets either from Mr. Cochrane Johnstone, Lord Cochrane or Mr. Butt ? A. Lord Cochrane gave me one of those at my own request hearing it was published. [Evidently this was the Cochrane- Butt pamphlet, ' The Calumnious Aspersions.'] i Q. Look at that which purports to be an affidavit of Lord Cochrane. But Serjeant Best interposed as it was not the identical book, and the witness was sent home to fetch his own copy of the pamphlet. Then Mr. Eichardson was recalled, and deposed that he had been employed by Mr. Butt to sell that pamphlet ; but Lord Ellenborough interposed and said, that to be evidence against Lord Cochrane it must be a publication by him. Mr. Gurney said he would wait until Mr. Wright returned, and Lord Ellenborough said to Serjeant Best, ' I leave it to your judgment whether your resistance does you more good than your admission.' Serjeant Best then 200. 201. ^ At p. 91 in his Letter to Lord Ellenborough, Lord Cochrane refers to this pamphlet as criticisms he had published on the Stock Exchange report, thercl>y admitting his publication of it. It was evidently written by William Jackson. See his evidence in 1862 before Lords' Committee n Privileges. I WITNESSES FOB THE PROSECUTION 107 ceased his opposition and the affidavit of March 11 was ^^\^''^^' read. Mr. Le Marchant was then called. He held a Colonial pj, ^o's. appointment at Antigua, a situation which he described as gjg/'"'^ being worth £1,200 a year. He was a friend of De Berenger's, who had told him about his intimacy with the Cochrane's, and that he was to have a certain percentage of the profits made at his suggestion by Lord Cochrane and Mr Cochrane Johnstone. In the course of his examination-in-chief Serjeant Best interrupted : ' I am awp,re your Lordship will not consider this as evidence against Lord Cochrane or Mr. Cochrane Johnstone.' Lord Ellenborough : ' No, it is admissible evidence, the effect of it is another thing.' Le Marchant broke down completely under cross- p. 207. examination. He had had a correspondence with Lord Cochrane, having asked him for money and been refused, and although this was pretty well proved, as the corre- spondence had been published in the Morning Chronicle, ^^ 212, and some of the jury had probably read it, still the corre- 336. spondence itself could not be read in Court until evidence was called for the defence, so that the letters were not read until the next day. Mr. Gurney probably only called him to prevent the comments that Avould naturally be made about his absence. Li his summing-up Lord Ellenborough spoke of Le ]\Iarchant as follows : There is a great deal he says which is no evidence against p_ 503. anybody but the person who relates it, viz : Captain De Berenger ; and I do not think it at all necessary to state it : he does himself no credit, and he is a person, on the statement of the letters which have been read, whom the Government might do very well in letting ride at anchor here, without going abroad. Le Marchant lost his appointment. William Carling, a servant, gave evidence that De p. 218. Berenger had dined twice at Mr. Basil Cochrane's : that on one occasion Lord Cochrane and Sir Alexander and Lady Cochrane were there, and on both occasions there were ladies as well as gentlemen present. -17 108 THE GUILT OF LORD COCHRANE IN 1814 p^222'' Joseph Wood, a messenger of the Ahen Ofifice, arrested De Berenger at Leith on April 8, and took possession of his writing-desk, containing papers, bank notes, guineas, half-guineas, and two napoleons, and a memorandum book containing the following entry : — p. 224. To C. J. by March 1st, 1811— £350— £4 to 5,000 assign one share of patent and £1,000 worth shares of Jn. De Beaufain at Messrs. H. to their care. — Believe from my informant £18,000 g instead of £4,800 — suspicious that Mr. B. does not account Hansard, corrcctly to him as well as me. Determined not to be duped. xxvui. - . -j^^ restrictions as to secrecy — requesting early answer. I think C. J. may be taken as Cochrane Johnstone and Mr. B. for Mr. Butt. Jn. De Beaufain was a name occa- sionally used by De Berenger. 'Trial,' Lord EUenborough agreed with Serjeant Best that this p. 224. memorandum could not be taken as evidence against the Cochranes, but apparently it could be accepted as against De Berenger who had written it. In his opening speech Mr. Gurney had said : p. 51. I will shew you that Mr. Fearn on the 10th of February drew a cheque on Bond and Co., for £56 5s. payable to Mr. Butt, and that it was paid partly in a fifty pound bank note and the same bank note was found in the possession of Mr. De Berenger when he was taken at Leith . . . Mr. Pattersall, a partner in Bond & Co., gave evidence that Mr. Evans, one of their clerks, paid the cheque in question. As, however, Mr. Evans failed to answer his subpcena, Mr. Gurney was unable to prove this portion of his charges. I look upon the absence of Mr. Evans and the illness of Mr. Wright, the landlord of the Ship Inn, Dover, as very suspicious circumstances. I think it is extremely probable that these witnesses were kept out of the way by the conspirators, and would also remark that the other post-boy Ward was not called.^ Had they given evidence, Mr. Gurney would probably have been in a position to prove, what had been proved ' The other postboy Adams also was absent. CHANGING AND RE-CHANGING BANK-NOTES 109 before the Stock Exchange Committee, when Christmas gave his evidence ' with hesitation and apparent re- luctance,' namely, that the one-pound notes which De Berenger gave as payment at Dover had been in the hands of Mr. Butt less than twelve hours previously, i.e. that Mr. Butt had supphed him on Saturday afternoon with the funds necessary for the Dover expedition. Mr, Gurney next proceeded to prove Lord Cochrane's •Trial.' share in providing funds for De Berenger 's flight. ^' "^"' A cheque was paid to Lord Cochrane by Smallbone on February 19,^ 1814, fo^ £470 19s. 4d. Of the proceeds £20 19s. 4d. are not traced ; a fifty-poimd note is paid by Lord Cochrane to his coal-merchant. The remaining £400 are represented by a two-himdred-poimd note, No. 634, and two notes of £100 each— 18468 and 16601. No. 634 passed from Lord Cochrane to Fearn, who sent Christmas with it to Bond's Bank, where it was changed into two notes of £100 each— 19482 and 19592. These notes were again changed for one-poimd notes. Sixty-seven of these one-pound notes were found in De Berenger's writing- desk. The history of Nos. 18468 and 16601 is simpler. They were changed for one-pound notes. Of these notes forty- nine were found in De Berenger's trunk. It is clear that the object of changing the notes so frequently was to increase the difficulty of tracing them. As these permutations are very puzzling, Mr. Atlay has given the evidence of the clerks at much greater length than I have. That the jury followed these proceedings with attention is shown by one of them asking for the numbers of the notes. Lance was cross-examined by Scarlett with the object of showing that £200 of the money which Lord Cochrane had repaid to Mr. Butt was a repayment of a hond-fide loan. Mr. Atlay has reprinted verbatim all Lance's evidence on the subject. De Berenger had bought a watch at Hull from a watch- p. 245. ^ In the trial it appears sometimes as February 10, ^hich is a misprint. 110 THE GUILT OF LORD COCHRANE IN IS 14 maker named Bramley. Seven of the one-pound notes with which he paid for it were identified by bank clerks as having been part of what was paid to Fearn on February 24, for either No. 19482 or No. 19592. Then there was another cheque of Mr. Butt's, dated February 25, drawn on Prescott & Co., for £98 2s. Gel Of this £8 2s. 6d. is not traced, but £90 is accounted for. Two notes were given in payment, one lifty-pound note. No. 13396, and one forty-pound note. No. 6268. Proof was given that the forty-pound note was exchanged by De Berenger at Sunderland while passing under the name of Major Burne. The fifty-pound note was given by De Berenger to his servant W. Smith, who got it changed by Mr. Seeks. Mr. Seeks gave his evidence, and an attempt was made to corroborate his deposition by means of an entry, ' W. S. £50,' in a memorandum book of De Berenger 's. « Trial,' Loi'd Ellenborougli, however, said ' I think it is not evidence ; p. 250. j^ ^ygg j-^q|. gg|- ^]^g length of Wilfiam Smith ; but even if it were to be taken to refer to WilKam Smith, it does not connect it with this bank note, or any other means of payment. I cannot trans- late " W. S." into " William Smith my servant," and " £50 " into " this £50 bank note." You do not call William Smith ? ' Mr. Gurney answered ' No, certainly not, my lord. I shall leave that to my learned friends.' The defence did call William Smith on the next day, and he admitted having received the notes in question from De Berenger on February 27, the Sunday he went away. At the close of the proceedings Thomas Evans, clerk to Messrs. Bond, was called a second time on his subpoena, but he failed to appear, and Lord Ellenborougli said : ' This entry will be no use to you.' The two napoleons found in De Berenger's letter-case were then produced, and Mr. Gurney closed his case. Now came the first public intimation that it was intended to call witnesses for the defence. I have shown how Gurney strove to taunt the opposing counsel into doing so. He well knew the utter rottenness of the affidavits which had been published in the pamphlet for which Lord Cochrane COUNSEL'S WARNING TO DE BERENGEB 111 and Mr. Butt were responsible, and he scarcely believed that his opponents would dare to run the risk of putting any witnesses in the box. That his views were shared by the opposing counsel is proved by the following memo- randum, which was sent to De Berenger during the progress of the case : — We both agree in thinking that if we were to attempt the alibi, it would not only be of no avail against the body of proof now given, but would probably end in the witnesses being sent to Newgate ; and when the day of punishment comes, making or attempting to make su'&Ji a defence will probably enhance that punishment by the addition of the pillory. No power on earth can prevail in this case, if the prosecutors prove the rest of the case, and we dare not in justice to our client, allow him to heap greater destruction upon himself without raising our warning voice against so mad a project.^ J. A. Park. J. Richardson. Lord Brougham held equally strong views about calling witnesses. ^ This memorandum is taken from a pamphlet entitled ' De Berenger Detected,' published in May 1816 by W. Jackson in Lord Cochrane's interest. It is there said that this memorandum was given to De Berenger by his counsel previous to the examination of the alibi witnesses, and to have been shown by him to a person who sent a copy of it to Lord Cochrane (see p. 13 of ' De Berenger Detected '). [Was this person Cochrane Johnstone ? — Ed.] ^_/ CHAPTER X THE ADJOUKNMENT '^254'' ^^^ ^^ ^•^' Serjeant Best said : ' I wish to apprize your Lordship that I think it will be necessary for the defendants to call witnesses.' Lord Ellenborough answered : * I should wish to hear your opening, and to get into the defendants' case if I can, there are several gentlemen attending as witnesses who I find cannot, without the greatest public inconvenience, attend to-morrow.' Mr. Park, De Berenger's counsel, wished for an adjournment, but was overruled by Lord Ellenborough. The other counsel do not appear to have spoken on the subject, and Serjeant Best opened the case for the defence of Lord Cochrane, Cochrane Johnstone, and Butt. Looking at the whole of Lord EUenborough's conduct of the case, the charge of having refused an adjourmnent and forced the defendant's counsel to speak when weary and exhausted, is undoubtedly the one, next perhaps to the refusal of the new trial, which has most impressed, not only the popular mind, but members of the legal profession. As this is essentially a question connected with the legal practice of the period, I leave it to be dealt with by Mr. Atlay. AMay, p. The really strange thing is that, with the qualified exceptions which I am about to mention, it never received any confirmation at the time the persons who are represented as having been so completely exhausted, and as having their prayer for adjourn- ment refused. In the first place, as to the jury. On referring to the short- 112 ^A^ INTELLIGENT JURY 113 hand note we find that the jury took no part at all in the discus- sion as to the adjournment. Yet they were a highly intelligent body of men, who, as we see from the report, were taking careful notes, and who every now and then interposed with questions exceedingly to the point. It is impossible to believe that a representation made by them that they were too fatigued to go on would not have met with respectful consideration from the Bench. Even had Lord Ellenborough been actuated by the sinister motives imputed to him, his experience as an advocate would have taught him the folly of setting the jury against him by refusing a reasonable request. In the affidavit of June the 14th, Supra, p. Lord Cochrane swore ' thatr\he had been informed, and verily be- lieved that the jury . . . were so completely exhausted and worn out by extreme fatigue . . . that justice could not be dons to him.' Here the matter rests ; no one of the twelve men ever came forward to confirm this statement on oath or otherwise. Affidavits were flying about for weeks afterwards, and we should have thought that it would not have been impossible to find at least one honest man amongst them to testify to his extreme fatigue. We know, at least Alderman Wood said so, that one of Supra, the jury had expressed his willingness to state publicly the effect P* produced on his mind by Lord Cochrane's statements after the verdict ; it is strange that this communicative juryman did not mention his fatigue and that of his colleagues, if indeed they suffered from it. Be it as it may, the Alderman did not allude to the subject, and as far as the jury are concerned, this state- ment of Lord Campbell's goes absolutely unconfirmed.-"- How does it stand as regards the Counsel ? In a matter Atiay, p. of such gravity the only safe plan is to refer to the shorthand report of the trial itself. It Avill be remembered that Serjeant Best led for Lord Cochrane, his uncle, and Butt ; Mr. Park for De Berenger ; and Serjeant Pell for Holloway, Lyte, and Sandom. Mr. Alley threw up the sponge for M'Rae and took no part in the discussion. The case for the prosecution closed apparently < Trial,' about 10 P.M., and Best immediately volunteered the statement P- 254, , , , . . n ■ -1 • supra, that the defence were gomg to call witnesses without saying p. 123. anything whatever about adjourning. Lord Ellenborough replied that he wished to ' hear your opening, and if possible to ^ I should like to refer the reader to the conversation which took place ' State between Lord Ellenborough and the jury relative to an adjournment in Trials,' the trial of Watson for high treason as an illustration both of the way ^n^"f„ J^ * in which jurymen were accustomed to interpose in such discussions and of pp. 268 and the method adopted by the Bench in trying to meet their convenience. 269. II ,'» ^ 114 THE GUILT OF LORD COCHRANE IN 1814 get into the defendants' case.' Best said no more, but Park gave as an objection the difficulty, which he said his lordship would feel equally with them, arising from fatigue owing to the length of their attendance in Court. They would proceed, however, if his lordship desired it. Lord Ellenborough repeated that he wished to get into the case so as to get through, if possible, the examination of several witnesses upon whom the public business of several offices depended. Park then shifted his ground. He had undergone very great fatigue, he said, which he was able to bear ; but he submitted the hardship on parties charged with so serious an offence, of having their case heard at this late hour, and then a fresh day being given to Gurney for his reply. Lord Ellenborough answered that the sun would be almost up before they could adjourn, and it could not be said that it would be a fresh day. If they required it, he would sit through rather than that. Atlay, From this it is clear that Best never asked for an adjourn- ment, and that Serjeant Pell took no part in the discussion at all. The application proceeded from Park alone, and in con- firmation of this, a contemporary report, i as well as The Times newspaper, asserts that an application for an adjournment w^as made by De Berenger's Counsel. Yet, in the face of this. Lord Campbell says that ' all (Counsel and jury) prayed for an adjourn- ment.' We can well understand why Park should have been more anxious for time to consider his position than the other leaders. Pell called no witnesses ; Best had practically committed himself to his line of defence, but to Park it must have been of the utmost consequence to make a final effort to dissuade his client from launching his desperate alibi in the face of the imshaken testimony as to the identity of De Berenger with Du Bourg. As a matter of fact, however, he suffered no loss on this score. Best's speech occupied nearly two hours ; De Berenger was in Court, close to his Counsel,^ and there was ample opportunity for the consulta- tion which resulted in Park reluctantly opening his ahbi to the jury. ^ The Trial of Lord Cochrane and Others for Conspiracy, printed for Coxhead, No. 53, Holywell Street, and Hughes, Liidgate Hill. At p. 32 we read ' Mr. Park, on behalf of the defendant Berenger, suggested the propriety of adjourning the trial, not on account of the fatigue that the Counsel had endured, but for the ends of justice, in order that the case of the defendants might be fairly heard.' Hansard, " In the debate of July 19tli, 1814, Garrow describes De Berenger as xxviii. 7^7. ' sitting in an unsuspected part of the Court, looking down and writing, as if he were a clerk to one of the Solicitors.' If LONG SITTINGS THE CUSTOM OF THE TIME 115 How far, again, is Lord Campbell's statement confirmed by the Counsel engaged in the case ? No less than ten appeared for the various defendants, and of these only two, so far as I can discover, have ever alluded to the matter. Lord Brougham, as we shall see shortly, did complain of the prolonged sitting, not on account of fatigue, but because it resulted in the evidence for the defence being thereby separated from the speeches. We have seen how this argument was dealt with in the House of Commons. Scarlett is said to have remarked at a dinner-table, many years after the trial, that Lord Cochrane's innocence might ^' "' ' have been established had not the Judge arbitrarily hurried on the defence at a late hoar in the evening, when all parties were wearied. I have some comments on this in the following chapter, and will merely say here that he had ample opportunit}^ during the months immediately succeeding the trial of making this statement, and that he did not avail himself of it.^ The silence of Counsel on this point is the more remarkable Atlay, that some of them had seats in the House of Commons, and P' ^^^" could hardly have refrained from confirming Lord Cochrane on this point, had it been well grounded ; while professional etiquette may well have prevented them from contradicting him. We know that they furnished Mr. Abercrombie with a statement as to matters connected with the trial on the occasion of Lord Ebrington's motion, but there is nothing about the adjournment in it. Equally remarkable is their silence when it was debated again on the motion for impeachment. Lastly, is it likely that such men as Best and Scarlett and Brougham would have acquiesced calmly in the continuance of the sitting if they had felt that it was fraught with serious injury to their client ? Best had got to do what he could with a bad case, and he may well have thought that a late hour in the evening was no unfavourable time for doing it. I have dealt elsewhere with the difficulties that confronted him, and have suggested what I believe to be the explanation of his tactics. There are, however, one or two points to consider. Was this an unusually prolonged sitting, and, if so, had Lord Ellenborough Atlay. valid reasons for acting as he did ? With regard to the first of P- -^i*^- vol. ii. ^ It is true that in his letter to the electors of Westminster of August 10, ' Autobio- Lord Cochrane says that Best ' intimated at the time, and afterwards grapliy,' authorised me to assert, that he was not able to do justice to the cause ' ; but without Best's exact words this goes for little, when compared with his silence on the subject in the House of Commons, of which ho was a u member during the years 1814-lG. i2 -■u 116 THE GUILT OF LOED COCHRANE IN 1814 these we may admit that to those whose ideas of judicial pro- cedure are derived solely from the Royal Courts of Justice in the Strand, which sit at 10.30 and rise at 4, with an interval of half an hour for refreshment in the middle of the day, this eighteen- hour sitting (from 9 a.m. on Wednesday to 3 a.m. on Thursday) must seem appalling. On circuit, however, when an uncertain amount of work has to be accomplished in a fixed amount of time, very prolonged sittings are by no means a rarity even now. There are few Common Law barristers of the older generation who cannot tell of occasions when they heard the chimes at midnight within the walls of an Assize Court. A friend of mine on the Oxford Circuit only the other day was mentioning a sitting of the Stafford Quarter Sessions to hear a rating appeal which lasted from 9 a.m. to 12 p.m. without an adjournment of any sort. 1 myself have heard Sir Henry Hawkins at Worcester Assizes sentence three men to death between 12 and 1 in the morning; i and The Times of Monday, the 10th of December, 1888, records the late Sir James Stephen as returning from Exeter Assize Court at 2 A.M. These, it may be said, are fortunately exceptional cases ; but in the early years of the century twelve-hour sittings in criminal trials were the rule. The Old Bailey sat from 9 a.m. till 9 P.M. until the establishment of the Central Criminal Court in 1834, and from the pages of ' Howell's State Trials ' instances of desperately long sittings could be multiplied indefinitely. ' State^ Lord Mansfield, for instance, in trying Lord George Gordon, sat xxi* 486 ^i^^ ^ quarter-past 5 a.m. There is a Scotch case, Rex v. Sir Archi- bald Kinloch, in which the jury returned their verdict at 8 a.m. ; XX. 891. and in the famous trial of Burke at Edinburgh in 1828 for the Westport murders, the Court sat for twenty-three hours, sentence xxviii. 524. being pronounced at half-past 9 on the morning of Christmas day. The trial of Colonel Despard for high treason lasted till 3.30 a.m. ,2 ' State and that of his associates from 9 a.m. on Tuesday, January the 8th, xxi^'^igo et ^^^^ well-nigh 8 o'clock the next morning, while such cases as those seq. of Hardy, in which the Court sat on eight successive days,^ from Atlay, 8 or 9 to 12 and 1 at night, must have imposed an even severer strain on Judge, jury and Counsel. At this period, and for long after, adjournments in criminal cases were looked upon with 1 Eeg. V. Bosicell and others. The Times, February 20, 1890. The Judge asked the jury if they would rather he postponed his summing-up till the morning, but they preferred to go on. - It may be noted that Despard's counsel were Best and Gurney. ^ October 28 to November 5, 1794, excepting November 2, which was a Sunday. I p. 311. i ALLEGED FATIGUE OF COUNSEL 117 suspicion. Ponsonby gave vent to tliis feeling in his speech on the motion to impeach Lord Ellcnborough. Mr. Justice Park, the same Park who defended De Berenger, only permitted with reluctance the trial of Thurtell for the murder of Weare to be Hex v. Kin- adjourned at a late hour ; ^ and in 1819 Scarlett moved un- '.^^/^o successfully for a new trial in a case of conspiracy on the Barnewaii ground that the jury had been allowed to separate without the g"^ ^q^^' consent of the defendants. A word, too, must be said as to the excessive fatigue of the Counsel. We have seen with what scorn Garrow rejected the idea that a man was unfit to discharge his duty to his client Atlay, after fifteen hours in Coiirt, and it should be remembered, P- ^^^• moreover, that Best, Cochrane's Counsel, began his speech at 10.30, and had finished soon after midnight. The Counsel of those days were accustomed to carry on their daily avocations under circumstances of hardship and discomfort at which their modern successors would stand aghast. Long sittings, foul air, crowded Courts, were incidents of their everyday life ; evening sittings were part of the routine not only of the Old Bailey but of the Rolls Court. How the business was transacted on circuit within living memory there are many still amongst us who can narrate from personal experience. An old-fashioned ujiper room, converted into two Courts by the intervention of a curtain or a wooden partition drawn across the middle, the Crown Court at one end, the Nisi Prius Court at the other ; a babble of voices, a dim and flickering light. Counsel, attorneys, jurors in waiting, witnesses, spectators, all crowded into the narrowest limits. These were the surroundings that hedged in the majesty of the law in our country towns. No adjournment for refresh- ment, scant opportunity for leaving the Court for the most necessary purposes ; leading Counsel busily engaged in both Courts at once, having been at consultation at eight, and with many hours of work before them on the rising of the Court. Were men nurtured in this school likely to be incapacitated by even such a sitting as Lord Cochrane complains of ? And amongst ^ He is reported as saj^ing that a case ought to go on until it was closed, and that ' he could not order the Court to be adjourned unless the jiu-y desired it. He was for himself perfectly willing to go on to finish the case before they separated. He had no personal wish on the subject. He had been accustomed to bear fatigue of this kind, and he was willing to bear it.' Finally, after a fifteen hours' sitting he acceded to the wish of the prisoners for an adjournment on the express ground that the jury concurred in it. 118 THE GUILT OF LORD COCHRANE IN 1814 ' Lives of them was Brougham, of whom Lord Campbell writes with regard cefloS*"' *o *^^ Yorkshire election in 1830 : ' No man ever went through viii. 365. such fatigue of body and mind as he did for the three following weeks.' But even if we grant that it was an unusual course to sit so late — and the technical objections to an adjournment in cases of felony do not apply to misdemeanors — we have still to consider whether Lord Ellenborough may not have had valid reasons for acting as he did. Many such reasons suggest themselves at once. He may have thought it undesirable to expose the jury to the ordeal of making their way through the possibly hostile crowd that thronged the approaches to the Court and which would have dispersed by the small hours of the morning. He may have felt that if the jury were to be kept up late either night it was better that it should come in the middle of the proceedings than when he was summing up or when they had retired to consider Atiay, their verdict ; and we can imagine the outcry that would have ^' ' ' been raised had his fiercely criticised charge been delivered towards midnight instead of in the afternoon, which would have been the case had the speeches of the Counsel been thrown over to the Thursday morning. But none of these suppositions are necessary. Supra, Lord Ellenborough himself gave his reasons. ^' ' * ' There are several gentlemen attending as witnesses,' he said, ' who, I find, cannot, without the greatest public inconvenience, attend to-morrow. . . . There are several witnesses upon whom the public business of certain offices depend.' We know who those witnesses were — Lord MelvUle, the Atlay. First Lord of the Admiralty ; Colonel Torrens, the Secretary P- '^^^- to the Commander-in-Chief ; and Mr. Goulburn, the Lender Secretary of State for the Colonial Department. They had attended in Court on the Wednesday on subpo?na, having doubt- less arranged theii- official business before starting, but they could not have foreseen the possibility of spending Thursday there also, or have made provision for the events of another twenty-four hours. Anyone with the slightest knowledge of the working of Government Departments will realise what disorganization would be WTOught by the unexpected absence of such men from their offices for a single day, even at a period of peace and slackness. But the early days of that June were no ordinary times. We were at peace with France, it is true, but the war with America was raging, and hostilities there were about to enter DUTIES OF OFFICIAL WITNESSES 119 on a new and critical phase. The cessation of the war with France had left a large number of line-of-battle ships and other vessels in the Mediterranean and on other stations where they were no longer needed and only formed a useless expense to an overburdened nation Many of these had to be paid off, and the crews of others to be transferred to the ships which were being dispatched to the coast of North America. Not only was part of our fleet being transformed from a war to a peace footing, but the remainder was being shifted to a new base to assist the military operations against the United States and to protect Atlay our commerce from their swarming privateers. Troops had to be ^' brought home Trom the S^uth of France and carried across the Atlantic, and British vessels were even being employed in trans- porting the Russian guards to their native country. It was no mere routine duty that rendered imperative the presence of Lord Melville at his office. These remarks will apply mutatis mutandis to Colonel Torrens ^^"^• and Mr. Goulburn. Many of the duties of our modern Secretary of War were then discharged by the Secretary for the Colonies, and he was not only burdened with the multifarious transaction arising from the return of our soldiers at the conclusion of the Peninsular War, but he had on his hands the details of the less glorious strife in America, where, for the moment, we seemed to have lost the control of the Canadian lakes, and where the expedition to Washington was on the point of being launched. Any moment might bring important despatches from the seat of war which would brook no delay. It would be waste of time to enlarge upon the duties of Colonel Torrens, as Military Secretary to the Commander-in- Chief, at such a period, especially when his superior, the Duke of York, was fully engaged in paying the attention due from a Prince of the Blood to our Royal guests, the Allied Sovereigns, who had just landed in England, and in connection with whose visit a military review had been ordered in Hyde Park for June 20. Taking these matters into consideration, it can hardly be said Vide supra, with truth that Lord EUenborough ' assigned insufficient and ^" artificial reasons ' ; and though it is true that the length of Counsel's speeches prevented him from proceeding with the examination of the official witnesses previous to the adjournment, as he had desired, they were still taken at an earlv hour the next morning, which they could not have been had the speeches 120 THE GUILT OF LORD COCHRANE IN 1814 come at the opening of the Court, and they were consequently released from attendance in time to spend the best part of Thursday at their offices. It is not too much to conjecture that urgent representations on the part of these witnesses to take their evidence and dismiss them that night must have reached the Bench, and that such representations were based on grounds of the public ser\dce. Still, it may be said that no consideration of convenience to the public ought to have weighed with the Judge in comparison with the possibility of inflicting injustice on the accused ; and I think, though I have never seen it suggested, that there was passing through Lord EUenborough's mind an idea which rendered it imperative, in the interests not only of justice but of the nation at large, that the prisoners' line of defence should be disclosed before the Court rose. In the days immediately following the perpetration of the fraud, rumour had been busy with the name of Lord Yarmouth ; ^ and we have seen, moreover, how his name had been introduced into the story by Lord Cochrane 's affidavit of March 11, which represented De Berenger as borrowing a coat and hat in order to visit him amongst others upon the day of the fi-aud. Lord Yarmouth had been subpoenaed for the defence, and was seated on the Bench, but no one in the Court, except the prisoners' Counsel and attorneys, could have any notion of the nature of the evidence which he would be called upon to give. We know now that he was only examined to confirm the statement of previous applications having been made on the part of De Berenger to obtain employment on board the Tonnant, and that he was asked questions as to the handwriting of the letter, and as to the uniform of his corps of sharp-shooters. But, for all that Lord Ellenborough knew, the defence might be going to call him to prove that De Berenger had actually visited him on that eventful morning in the disguise supplied by Lord Cochrane, and to question him as to what had taken place. Even if direct criminality was not imputed, the mere insinuation could not fail to draw him into the circle of those to whom guilty knowledge Atlay, was attributed. If it could be shown that the pretended p. 316. ' Life and ^ Brougham to Earl Grey : ' Of the Cochrane business I know nothing, Times of except that I have received general retainers for the respective parties j^^ , , within the last three or four days, apparently in the contemplation of some ii. 197-8. * proceedings in a high tone. Who is implicated I can't say, except as 1 see in the newspapers. Yarmouth and Lowthcr were at first much talked of.' March 12, 1814. LORD YARMOUTH 121 messenger had come to Lord Yarmouth from Lord Cochrane's house, there would be a strong suggestion that the one knew as much of the fraud as the other. Lord Yarmouth, afterwards sixth Marquess of Hertford, had played a prominent part both in society and in political life. It was far from improbable that a defence, some of the agents of which were none too scrupulous, might seek to shift part of the responsibility of the fraud, or at any rate a share in the guilty knowledge of it, on to the shoulders of their witness. And there were circumstances which made such a prospect extremely material to the public weal. Tlie Allied Sovereigns were enjoying the hospitality of the English nation, and Lord Yarmouth had been appointed to the especial charge of the Czar of Eussia during his visit. Our guests were to ride through the City on the Thursday morning ; it would be Lord Yarmouth's duty to accompany the Czar, a duty which we know from the Press of the day he actually fulfilled before going into Court. These TimM, ceremonies were no mere pageants, no mere matter oi parades and igu. processions. Not a Sovereign in Europe could at that moment have traced the boundaries of his own dominions. It was of the utmost importance that this meeting of the conquerors should Atiay, pass off without any contretemps. Surely Lord Ellenborough P- ^^'^^ was justified in refusing to adjourn the Court, until he knew from the lips of Counsel that no effort was to be made to draw Lord Yarmouth into the meshes of the conspiracy. ^ Atlay, p. 130. CHAPTER XI SERJEANT best's SPEECH Serjeant Best's speech occupies thirty-six pages in the Report of the Trial, and it is well to consider what he had to go upon before dealing with it. The principal evidence against Lord Cochrane came under three heads. 1. His Omnium transactions. 2. The traced bank notes. 3. Gift of a disguise to De Berenger. 1. His Omnium transactions had been admitted both in pamphlet and affidavit. That Gurney had made a mistake in saying that Lord Cochrane had been a speculator for one week only had been proved in cross-examination. 2. That nearly all the produce of a cheque of Lord Cochrane's drawn on February 19 had reached De Berenger between the 21st and 27th of that month had been admitted ; but it was pleaded that its produce had been through the hands of Butt and Cochrane Johnstone as well, and that as regards one sum of £200, Serjeant Best contended there was proof that Lord Cochrane gave it to ]\Ir. Butt in payment of a hond-fide debt. As regards the other £200, the memories of Lord Cochrane and Mr. Butt remained blank, not only until after the trial, but until after the demand for a new ' Letter to trial, whcn they suddenly recovered them. The natural borough/ " inference is that the accounts afterwards drawn up would pp. 114- j^Qj. have stood cross-examination, though they might bo good enough for the uneducated portion of the Westminster electorate. 122 SERJEANT BEST'S SKILFUL SPEECH 123 Serjeant Best took full advantage of a slip made by Gurney in his opening speech, when he said Lance had changed some notes which the evidence afterwards proved were changed by Christmas. Serjeant Best mixed up the notes and rang the changes on them so skilfully as to make it appear that he had accounted for Mr. Butt's having received both sums of £200. The hour may have been late, but never was Serjeant Best more wideawake than when he performed this masterly piece of sleight-in- hand. 3. As regards the gifi of a disguise, Serjeant Best had before him Lord Cochrane's affidavit describing De Berenger as being dressed in ' a grey great coat, a green uniform, and a military cap.' And he probably had before him Lord Cochrane's mstructions to his solicitors in which De Berenger' s dress was said to be ' a grey great coat without ' Letter to any trimming, a green coat or a coat with a green collar borough/"' under it,' which is a weakening of the position as taken up ^i*!'- ^"• in the affidavits. The pamjihlet published by Lord Cochrane and Mr. Butt containing the affidavits of his servants and those of De Berenger was also before him, and by the time he came to make his speech he must have had somewhat more than a shrewd suspicion that none of these affidavits were to be relied upon. There had been a consultation at his chambers ' Aiitoi.io- graphy, on June 6, the result of which is described as follows by ii. 450 «. Lord Cochrane himself : — From an item in my Solicitor's bill dated June 16, only two days before the trial, I extract the following : — ■ ' Attending a consultation at Mr. Serj. Best's Chambers, when ' Letter to your case was fully considered, and all the Counsel were decidedly p'''^ Eilon- ... . . . borough, of opinion that you must be defended jointly with the other App. vii. defendants ; and the Counsel recommended your servants being in attendance during the trial, although they still remained of opinion that neither they nor any other witness ought to be examined on your part.' What Brougham thought about calling the servants we have already seen, and there is little doubt that Serjeant L-/ 124 THE GUILT OF LORD COCHRANE IN 1814 Best had the benefit of hearmg his opinion before com- mencing his speech. Whether Serjeant Best was aware Law Mag., that on June 7 a letter from Lord Cochrane had reached his sohcitors, ' desiring that Mary Turpin's statement that De Berenger's coat was red, should be expunged from the brief,' is not clear. 'Affidavit The cap and sword were both left at Lord Cochrane's house- house. The hackney coachman who brought Lord Cochrane puwfshed fi'om the lamp manufactory and took De Berenger away by Lord from Green Street never appears to have been found, or, Cochrane "- ^ in ' Letter if fouud, he was kept away like Davis, who had been allowed to Lord , , Ellen- to go to sea. borough.' Serjeant Best said that Lord Cochrane never thought of ger's Letter assisting De Berenger to escape from his creditors, but only Cochrane' ^^^^ ^™ clothes to enable him to go to Lord Yarmouth and Lord Melville, and remarked that the jury had ' no ' Trial,' positive evidence of anything that passed in the house of ^' ' Lord Cochrane, except that evidence which my learned friend has given you from the mouth of Lord Cochrane himself.' I think that I have clearly shown the exceedingly difficult position in which Serjeant Best was placed, by being unable to call the servants to corroborate Lord Cochrane's and their own affidavits. The jury were aware of these affidavits, and the absence of their makers from the witness-box must therefore have been most conspicuous. Serjeant Best admitted Cochrane Johnstone's visit to p. 282. De Berenger on February 26, but said that he would show that the payments to De Berenger were justifiable payments arising out of business transactions. He denied that the Holloway plot had anything to do with his clients. When he sat down he spoke of fatigue from having p. 291. been thirteen or fourteen hours in Court, but his speech does not show a sign of it. p. 292. Mr. Park spoke next for about two hours in defence of De Berenger ; but as his client has since admitted his guilt, it is unnecessary to give an account of his speech. p. 319. Mr. Pell then addressed the Court, and spoke apparently for about one hour in favour of Sandom, Holloway, and DIVIDING THE CAUSES 125 Lyte. When he concluded it was three o'clock on the Thursday morning. Lord Ellenborough said : ' Gentlemen of the Jury. It appears to me that this would be the most convenient time for dividing the cause, as the evidence w^ill occupy considerable time probably. I cannot expect your attend- ance before ten o'clock.' ^ — / CHAPTER XII THE TRIAL — SECOND DAY ' Trial,' p. 340. p. 347. On the second day of the trial Lord MelviUe, Fh-st Lord of the Admh-alty, Colonel Torrens, Secretary to the Com- mander-in-Chief, Mr. Henry Goiilbmii, Under-Secretary for the Colonies, proved that Admiral Sir Alexander Cochrane had applied for De Berenger to be allowed to accompany him to the North American Station. Thomas Dewman, who had been a servant in the Cochrane family for seventeen years, was examined by Mr. Scarlett. He recollected a gentleman coming to Lord Cochrane 's house in a hackney coach ; he had never seen him before or since that day. The gentleman sent him with a note to Cmiiberland Street, where Lord Cochrane had gone to breakfast, not finding him there, he retm-ned to Green Street, and then he went with a glass globe and the note to Mr. King's. On Dewman's return from Cumberland Street the gentleman took the note from him and said he would add three or four hnes to it. Dewman then took the note to Mr. King's, there he found Lord Cochrane, who read the note in his presence, and said, ' Then I must retm'n,' or ' WeU, Thomas, I will return.' He had attended on Major Cochrane, the brother who was in the south of France, when he first went into the army. Dewman himself did not return to Green Street until about 2 P.M. Scarlett also asked Dewman : Q. When did Davis quit him ? (Lord Cochrane.) A. Davis left him about two days, or three days it might be, 126 DAVIS' ABSENCE— TAHOURDIN'S EVIDENCE 127 before he went into Green Street ; his time was up then, but he was in Green Street. Davis was not in his Lordship's service at that time, but he happened to be in the kitchen when the gentle- man came. Q. What is become of Davis ? ' Trial,' A. He is gone with Admiral Fleming to the West Indies. ^' Davis had previously stated in an affidavit which appeared in the Cochrane-Butt pamphlet that he knew De Berenger. Now Admiral Fleming had sailed in the Eurotas at the end of April. I have aJready said that I think it most unlikely that Davis did not tell Dewman who the strange visitor "svas. W^ould Dewman have run on his errands without knowing his identity ? It should be noticed that though Scarlett had the reputa- tion of being one of the ablest men at the bar, and though Brougham was by his side, ready to undertake the next point in Lord Cochrane's defence, neither of them dared ask Dew^man a single question on the critical point of the dress worn by De Berenger when in Green Street. The first witness called for Cochrane Johnstone was Gabriel Tahourdin. He had known De Berenger for hve or six years, and De Berenger had written a thousand letters to him. Cochrane Johnstone he had first met in May 1813. Cochrane Johnstone had some premises in Alsop's Buildings (apparently the site of the modern Madame Tussaud's) which w^ere to be made into a sort of Eanelagh. De Berenger had drawn architectural plans with colonnades, &c. The plans were exhibited in Court to show that they were worth the money paid. On February 22 (the day after the fraud) a correspondence began between De Berenger and Cochrane Johnstone and Tahourdin as to his remunera- tion for these plans. Doubts w^ere thrown as to wdien these letters w^ere actually written, as they had not been through the post, and had, in consequence, no postmarks.^ Lord Yarmouth deposed that he was Lieut. -Colonel Commandant of the Duke of Cumberland's Sharpshooters, ^ At that time envelopes were not in general use. — Ed. ^ 128 THE GUILT OF LORD COCHRANE IN 1814 and that De Berenger was a non-commissioned officer and acting adjutant. He had known De Berenger for three years, and he did not beheve the Dover letter to be in De Berenger's writing. He described the miiform of his corps as ' the waistcoat green with a crimson cape,' — Some have got it a Httle darker than others but it should be a deep bottle green with a crimson collar ; the great coat is a ' Trial.' waistcoat with black fur round it consequently no crimson pp. 376-7. ^qUj^^ Q. The body in your uniform is not red ? ' ^. It is deep bottle green. Q. A juryman. A jacket or a coat ? A. It is a waistcoat, very like the light horse uniform. A juryman. If Colonel De Berenger had appeared before your lordship in the uniform of his corps, would it have been anything extraordinary ? A. Nothing extraordinary, it would have been more military that he should do so, though I never exacted it. As it is now admitted that De Berenger's alibi was all false, no remarks on it are necessary. The evidence for this alibi occupies fifty-two pages of the ' Trial.' When Mr. Gurney rose to reply, he said that — Trial,' It is a duty in which it is impossible to feel pleasure ; for every gentleman must feel degraded in the degradation of a gentleman, and every gentleman must feel mortified in the dis- grace of a man whose name is associated with the naval and military glories of his country. But we are here to try these defendants by their actions ; and whatever their conduct may have been in other respects, by those actions must they stand or fall. Gentlemen, if at the outset of this case, I addressed you with confidence, as to the result, I address you now with confidence increased tenfold, when I recollect the arguments by which these defendants have been defended ; when I recollect the evidence which has been adduced in their defence, and when I recollect too the evidence which has not been adduced in their defence ; the first, as it appears to me totally failing, in making out a case of innocence ; the two latter concluding to their guilt. 432, i1 DE BERENGER'S ALIBI 129 Then he spoke of the chaise or Holloway plot : — Gentlemen, if there were two conspiracies, then miracles have ' -"^^^'f;!'' not ceased ; for unless you can helieve, that a most extraordinary miracle has occurred, it is quite impossible to conceive that there were two plots. These three speculators held so much stock that they had been buying as a person must do, to keep up the market p. 436. to redeem himself from loss ; and on this memorable day, all this stock is sold, it is sold at a profit of upwards of ten thousand pounds ; and if it had been sold without the profit of one single farthing, still tlie getting out without a great loss was to them very great gain. One month later came the news of the ruptm-e of the ihid. Congress of Chatillon, had such news come on the morning of February 21 the losses of the defendants would have been one hundred and sixty thousand 'pounds. Upon the identity of De Berenger we have had for the last two hours, the evidence which has pp. 436-7. nauseated everyone in Court ; the evidence of the alibi, which no man living can believe ; in which no two witnesses agree ; in which we have contradiction after contradiction from every one of them. Knowing that an alibi would be attempted, I defeated it by p. 437. anticipation. I take up De Berenger at Dover as I would a bale of goods — I have delivered him from hand to hand from Dover to London, I have delivered him into the house of Lord Cochrane, and I have Lord Cochrane's receipt acknowledging the delivery .^ My learned friends had requested you would not suppose Lord Cochrane was capable of making a false affidavit. Gentlemen, that Lord Cochrane would have been incapable of deliberately engaging in anything so p. 439. wicked some time ago, I am sure I as earnestly hope as I am desirous to believe ; but you must see in what circumstances men are placed, when they do these things ; Lord Cochrane had first found his way to the Stock Exchange ; he had dealt largely in these speculations, which my learned friends have so liberally ^ This last sentence referred to Lord Cochrane's affidavit of March 11, to bo found supra p. 64. K ^ 130 THE OUILT OF LORD COCHRANE IN IS 14 branded with, the name of infamous ; he had involved himself so deeply, that there was no way, but by this fraud, of getting out of p. "40' them ; he had got out of them in this way, and then he found, as guilty people always do, that lie was involved still deeper ; he found the great agent of the plot traced to his house, and traced into his house in the dress in which he had perpetrated this fraud ; h.e was called upon for an explanation upon the subject. Gentlemen, he was gone to perdition, if he did not do some- thing to extricate himself from his difficulty ; then it was that he ventured upon the rash step of making this affidavit, and swearing to the extraordinary circumstances upon which, as I commented so much at length in the morning of yesterday, I will not trespass upon your attention by making comments now. My learned friends were properly anxious not to leave Lord Cochiane's affidavit to stand unsupported. They were desirous of giving it some confirmation, and they exhausted two or three precious hours this morning in calling witnesses to confirm it, but those witnesses were called to confirm the only part of the affidavit which wanted no confirmation ; they were called to give Lord Cochrane confirmation about applications to the Admiralty, and applications to the War Office and Colonial Office, by Sir Alexnader Cochrane for De Berenger ; and after they had called witness after witness to give this confirmation upon this insignificant and trifling point, they leave him without confirmation upon that important, that vital part of this case to my Lord Cochrane, videlicet : the dress which Mr. De Berenger p. 442. wore at the time he came to that house, and had with him at that interview. . . . When my learned friends had that servant (Dewman) in the box, they did not venture to ask that servant what was the dress of De Berenger. . . . They then tell us that another servant is gone abroad with some admiral, and I pray you, as he was here long after this Ibid. business was afloat, how was it he was suffered to go, unless his absence was more wanted than his presence ; but they have a maidservant who also saw him and she is not called ; ^ and my learned friends, though so anxious to confirm Lord Cochrane's affidavit, leave him without confirmation utterly abandoned and hopeless. ^ There was also Sarah Busk, but as at this time she had made no affidavit, Gurney may not have known of her. An affidavit had been pre- „ . , pared for her, but she fought shy of it. [She made one at a later period. — Ed.] See Letter to Lord Ellenborough. GURNEY'S REPLY 181 3Ir. Brougham. — Davis had left. Mr. Gurney. — I say why was he suffered to go away ? The maidservant is still here, and she is not called. On another point Gurney remarked : When did Lord Cochrane furnish the name of De Berenger to the Committee of the Stock Exchange?^ On the 11th of March ; Mr. De Berenger having quitted London on the 27th February, twelve days before ; and when my Lord Cochrane had no more doubt that he was out of the country, than that he himself was in existence ; ' Trial,' he was gone to the north, not gone to the south, to Portsmouth, P- *'*^- to go on board the Tonnant ; he had been gone twelve days, twice as long as was necessary to find his way to Amsterdam ; it was believed he was safe there, and when it was thought he was quite safe, Lord Cochrane was extremely ready to furnish the Stock Exchange Committee with the name of the party, and get credit for his candour. Then he referred to the payment of De Berenger, and asked why so much trouble had been taken to shift and change the notes. Why, gentlemen, it is because one-pound notes are not traced p.'446. as easily as notes for one hundred pounds ; people take these small notes without writing on them, but they do write upon such large notes as £100 and £200, and that they knew might afford means of immediate detection. . . . Recollect too, gentlemen, that this £400, which is shewn to p.I447. come out of the hands of Cochrane Johnstone and Mr. Butt, after the 24th of February is also shewn to have come originally out of the hands of Lord Cochrane himself on a prior day ; and therefore you have the money coming out of the hands of all three ; the reward of the agent coming out of the hands of the persons who had been benefited by the fraudulent services of that agent. He concluded by saying — '^ It appears to me to be absolutely impossible to doubt respect- ing the guilt of the several defendants. De Berenger is Du Bourg. When De Berenger is Du Bourg, the rest all follows ; he the agent of others, imquestionably ; he was not himself the principal. 1 The second report of Stock Exchange states that De Berenger's name was known to them five days before Lord Cochrane made his affidavit and that a warrant was already out against him. k2 % ^ 132 THE GUILT OF LORD COCHRANE IN 1814 'Trial, You liave had a mass of perjury exhibited to-day to extricate ^' ■ him, and consequently his employers. That like all falsehoods when detected, only serves to make conviction more clear and more certain. Lord Ellenborougli's summing-up has been much criticised by two of the defendants in this trial, Lord Coch- rane and De Berenger. Mr. Atlay has reprinted the whole of it verbatim, as well as the whole of The Times' report of the trial, so as to show to those who wish to judge for themselves how little ground there is for these attacks, and for the repetition of them by other people. I shall deal with these misrepresentations seriatim in the chapters on the ' Autobiography ' and on ' Lord Campbell's Account of the Trial.' The evidence before the Chief Justice, and the admissions of Counsel, left the former no alternative but to believe in the guilt of all parties and to sum up accordingly. No attempt had been made to sustain the truth of Lord Coch- rane's affidavit, except in unimportant particulars, and the Court had been disgusted by a fraudulent alibi, which if proved would not only have exonerated De Berenger, but also Lord Cochrane and his two companions. That Lord Cochrane should afterwards have admitted that Cochrane Johnstone had read to him De Berenger's brief before the trial, constitutes to my mind one of the most formidable pieces of evidence against him. The Chief Justice first dealt with the legal aspects of the case, and then proceeded to comment on the evidence. With regard to the letter to Admiral Foley, he remarked * that if De Berenger's letter had deceived Admiral Foley, the telegraph would have brought the news to London in p. 452. less than half an hour. It is not impossible that the letter in question may have been written beforehand and brought down with him. It is clear that the letter produced is the one actually sent. Everybody recollects the sort of electric effect produced upon this town the moment the news now under consideration arrived. When touching on Crane's evidence he said : ' He took a portmanteau that he had, and a sword, went in and came THE CHIEF JUSTICE'S CHARGE TO THE JURY 133 out again, and gave me another shilling. The portmanteau was a small black leather one.' Lord Cochrane has blamed the Chief Justice for not adding to his account of the Crane portmanteau that ' it was big enough t wrap a coat in ' ; but when he came to Solomon's evidence f-he Chief Justice said : ' He [De Berenger] took them [namely, a military great coat, a military staff coat, a foraging cap, a star and a badge] away with him in a coach, he had a small port- manteau with him, you remember there is a leather port- manteau spoken of.' So that he by mistake gave De Berenger credit for ha^^ing with him the portmanteau he ' Trial,' left at Dover, which was big enough to wrap two coats in. ^' '^"' This, I think, is the only slip he made, and it is in Lord Cochrane's favour. The Chief Justice omitted to comment on the fact that Best made no attempt to explain how both the sums of £200, which were the produce of Lord Cochrane's cheque, had found their way to De Berenger. Gurney had also omitted to allude to this point, though Lord Cochrane afterwards admitted it was one of the weakest points in his defence. Had Best then succeeded in deceiving them both, by the skilful way in which he manipulated the two sums of £200 notes ? Lord Ellenborough concluded by saying — You will find the defendants not guilty upon the first and p. 531. second counts of the indictment, as those allege facts and motives, in which they cannot all he supposed to have joined. A juryman. — They are guilty or not guilty of a conspiracy. Lord EllenhorougJi. — Yes, a conspiracy, which is a crime that cannot be committed by one, it must be committed by more than one. The jury retired at ten minutes after six o'clock, and returned at twenty minutes before nine with their verdict, huding all the defendants—' Guilty.' I may here remark that the jury appear to have followed the evidence with great attention. They intervened with questions no less than twenty times, many of them very much to the point. The sentences were deferred pending an application for a new trial. CHAPTEE XIII AFTER THE TRIAL The subsequent proceedings of the Court of King's Bench have been much misrepresented. It has been frequently asserted that Lord Cochrane was refused a hearing on the question of a new trial. It is true that he was refused a hearing on that subject on June 14, but he was heard without interruption on the 20th of that month. He was in the position of a speaker at a public meeting who at an early stage of the proceedings is ruled out of order by the Chairman, but who is afterwards listened to with atten- tion, before the conclusion of the business in hand. Mr. Atlay has given the following description of the proceedings on June 14 : — Atlay. On the following Tuesday, June the 14th, Lord Cochrane ap- ^t11^\ ' peared in person before the full Court of King's Bench, consisting of p. 532.' Lord Ellenborough and Justices Le Blanc, Bailey, and Dampier,! and asked that there should be a revision of the proceedings, and that a new trial should take place, at least as far as he was concerned. It had been his misfortune, he said, to suffer from an intimacy, or rather an acquaintance, with men over whose conduct he had no control whatever. Lord Ellenborough interposed by saying they could not hear him unless all the parties were present in Court ; it was the rule and they had acted on it that very morning. Lord Cochrane asserted that he held in his hands affidavits which could prove his innocence, but Lord Ellenborough said they could not forego the regular practice of the Court. They could not do it on the application of Counsel, and no more could they do it on his personal application. If ^ These four Judges had constituted the Court before which Lord Cochrane was tried. 134 LORD COCHRANE'S APPEAL 135 they were to adopt a different rule from the one they had acted Re:e. v. ^5- on that very day, it might properly be said that there was one *«^'^^^«"^« law for the rich and another for the poor. And Mr. Justice Dampier added, ' By the rules of the Court it cannot be ; your Lordship has been informed of the practice of Court, and from that practice the Court has no power to depart.' Lord Cochrane, however, succeeded in stating that ' before the late trial, so conscious was I of my innocence, that I did not think it necessary to instruct Counsel, as several gentlemen in Court knew. I never read over the brief on the subject till after the trial, when I found a very gross error had crept into it with regard to the dress of the stranger who called at my house ; and my servant is in consequence represented as having admitted that he was dressed in a red coat. The fact was that, being questioned as to the colour of the coat, he stated that he appeared to be an army officer, to which he very naturally attached the idea of a red coat, for the servants did not see it.' I have shown that Lord Cochrane did know what was in the brief, (See infra, p. 160-1.) Six days later, on June 20, Gurney moved for judgment < Trial, before the Court of King's Bench, which was constituted p- ^^^* as on the previous occasion. Cochrane Johnstone and M'Eae were absent, De Berenger appears to have been in custody, but the rest of the defendants were in Court, when Serjeant Best moved in arrest of judgment for Mr. Butt onlJ^ He stated that ' Lord Cochrane has desired me ^^|^^^ not to move in his behalf,' but the Chief Justice told him : p- 179. ' If you move in arrest of judgment for one, all have the benefit of it.' Mr. Park, on behalf of De Berenger, supported Serjeant Best's motion. Their arguments consisted of legal techni- calities connected with the indictment. Lord Ellenborough asked, when Park and Best had concluded their arguments : Does Lord Cochrane wish to address anything to the Court ? -^^"^ Lord Cochrane.— Mj Lord, I am desirous, previously to your ^^ 549 550 passing judgment upon this matter, that I should have an opportunity of explaining those things which I deem essential to be brought under your consideration. Lord Ellenborough. — If you mean to offer any observations 136 THE GUILT OF LORD COCHRANE IN 1814 in arrest of judgment, this is the proper time ; ive ivill ajtenvards • Trial' hear, as a distinct thing, whatever may occur to you as ft to be p. 650. presented to the Court, to induce them to grant you a new trial ; that is probably your object. Lord Cochrane. — I do not move in arrest of judgment. Atiay, The proceedings connected "v\ith the motion for arrest ^' ' ■ of judgment occupy twenty pages of the trial. The Chief Justice, Mr. Justice Le Blanc, Mr. Justice Bayley, and 'Mr. Justice Dampier, all gave their reasons for considering there was no ground for the motion. Their opinions were quoted p. 180 note, in the Com-t of Appeal as lately as 1892 and 1896. After the report of the evidence had been read by Lord See Attor- EUeuborough, Lord Cochrane then read an extremely able raTsfpTec'h address to the Com't. It occupies nine pages of the trial, of the 24th, and was listened to without interruption. Yet Lord xxxiii. 241. Campbell and other writers, who ought to have known 'Trial,' better, by limiting their studies to what took place on June 14, and by carefully excluding all allusions as to what took place on the 20th, have left on the minds of their readers the erroneous impression that Lord Cochrane was not heard on the subject of a new trial. The Law Magazine, vol. x. p. 229, remarks : Practically as in Teal's Case, as in Lord Cochrane' s no hardship was suffered through the rule observed on the 14th, for the Court in the former case heard the arguments of counsel on the reading of the report, and would then have granted a new trial had justice required it ; and in Lord Cochrane's case the like oppor- tunity was offered him as we shall see to impugn the verdict, and he accepted it and failed. Lord Cochrane said that he had met De Berenger in public company, but was on no terms of intimacy with him. With Coclirane Johnstone he had the intercourse natural between such near relatives. 'Trial,' Mr. Butt had voluntarily offered, without any reward to p. 555. carry on stock transactions, in which thousands, as well as myself were engaged, without the smallest imputation of anything incorrect. The other four defendants were wholly unknown to me, nor have I directly or indirectly held any communication LORD COC II BANE'S SPEECH TO THE COURT 137 ^Yit]I them. Of Mr. De Berenger's concern in the late fraud, I have no information, except such as arises out of the late trial. With regard to Mr. Johnstone and Mr. Butt, I am willing to hope they are guiltless. They repeatedly protested to me their innocence. They did not dare to communicate any such plan to me, if such was projected by them or either of them. He stated that it had been said that, in offering his < Trial,' former affidavit, he had incurred the moral guilt of perjury ^'' without its legal penalties ; he now repeated liis statement in a document duly sworn in Court, and it was confirmed by the affidavits of thf^e persons who saw De Berenger in his house on February 21, and he was only prevented from bringing forward a fourth by his sailing to a distant station before he could possibly stop him for the purpose. As regards the notes he said : Mr. Butt voluntarily made purchases and sales of stock for p. 507. me, and having received a small loan of money from him I repaid him with bank notes he used for his own purposes. As regards his acquaintance with De Berenger, he stated : It has been said that there was a suspicious degree of familiarity in his treatment of me and my house. I can only observe that over his conduct I had no control, and that there was nothing extraordinary in his knowing of his change of residence. He brought his brother's affidavit, and a surgeon's p. 558. certilicate to prove his brother's illness. The pretended Du Bourg would have terminated his expedition and found a change of clothes elsewhere had Lord Cochrane been an accomplice. The circumstance of his obtaining a change of dress at my house, could never have been known if I had not voluntarily discovered it. . . . My own fixed opinion is that he changed his dress in the coach because I believe that he dared not run the risk of appearing in my presence till he had so changed it. ^_/ 138 THE GUILT OF LORD COCHRANE IN ISli He then referred to the small portmanteau, and went on to say : ' '^g^]' He presented himself to me in a grey great coat and a green under coat ; and if the persons whose affidavits I now tender had been examined on the trial, and they did attend for the purpose, I do feel persuaded that a very different impression would have been made on the jury and the world at large. Atiay, Lord Cochrane's second affidavit of June 14 was then read. It occupies four pages of the Trial. Mr. Atlay has reprinted the whole of it. It is mostly a repetition of wdiat has been previously stated ; he says, however, that he left London to rejoin the Tonnant on March 1, so that he admits havin" remained in London for ten davs after the fraud, with the talk of the town ringing about his ears, without taking any public step in connection wdth it. It was also stated in this affidavit : ' Trial,' That when this deponent understood that a prosecution was P' ■ to be instituted against him, he wrote to Admiral Fleming in .,, whose service Isaac Davis, formerly this deponent's servant, p. 185. then was, under cover to Admiral Bickerton, at Portsmouth, and that Admiral Bickerton returned the letter, saying Admiral Fleming had sailed for Gibraltar. ■■t) It will be noticed that the dates of the letter and of the sailing are carefully omitted. The log of the Eurotas shows that Admiral Fleming hoisted his flag on board that ship on April 26, and that the Eurotas finally sailed on May 1, so that Lord Cochrane waited for at least two months after the fraud before attempting to detain a man whose affidavit he had already secured and sent to the Admiralty. He evidently did not wish to see the man who knew De Berenger in the witness box undergoing cross-examination, and that he took care not to write to Admiral Bickerton until he knew that it was too late. Then again the affidavit went on to state : That this deponent sent his servants, Thomas Dewman, Elizabeth [ sic] Busk and Mary Turpm to prove the dress De Berenger came in, but that only Thomas Dewman was called, and LORD COCH RANKS AFFIDAVIT OF JUNE 14 139 that he was not interrogated about the dress, and it wound Atiay, up by saying : P' ^^^' That he hath been informed, and verily beheves that the jury * Trial,' who tried the said indictment, and the counsel for the defence ^' ' ' were so completely exhausted and worn out by extreme fatigue, p. igci. owing to the Court having continued the trial without inter- mission for so many hours beyond that time which nature is capable of sustaining herself without reflection and repose, that justice could not be done to the deponent. It must be noticed that as regards the alleged exhaustion of the jury he only says ' he has been informed,' &c., and that he quotes no name in support of his assertion. Also, that although the Court did not adjourn until three in the morning, Best's speech in his favour was over at about 12.30. The next affidavit, that of Thomas Dewman, was about to be read when Lord Ellenborough said : This was a person called as a witness on the trial ; if the affidavit went beyond or contradicted what he there stated, it cannot be received. Lord Cochrane replied. — Would your lordship permit me to Atiay, explain the reason why he was not interrogated ? P- ^*^^- Mr. Justice Bayley. — It is a settled rule, not to allow the affidavits of persons who might have been called at the trial, much less of persons who were called. Lord EUenhoroiigh. — And if any were not called, they were not called under the discretion of your Lordship. It would be a very dangerous thing if persons whose evidence may have been lUd. discreetly kept back, should afterwards be admitted to come forward as witnesses. Mr. Dealfry. — The next is the affidavit of Sarah ^ Busk. Lord Cochrane. — My humble hope is, that you will be pleased to grant a hew trial, in order that these persons may have the opportunity of being examined : they were not called from an ■ Trial, error in the brief, which (so little was I conscious of any partici- P- *^^^- pation in the fraud) I had not even read.^ 1 She appears to be called Elizabeth Busk at p. 566, Trial. " This is a juggle of words. It had been read to him. See Sir Samuel Shepherd's aud Su- Francis Burdett's speeches in debate in House of Commons, July 19, 1814. ^-/ 140 THE GUILT OF LORD COCHRANE IN IS 14 Mr. Gurney. — My Lord, the Counsel for the defendant were not uninstructed, as to the evidence which these witnesses could • rj,j,jg^j , give ; because annexed to the affidavit which your Lordship has p. 568. stated, of Lord Cochrane, were the affidavits of all the servants, of the one who is not now in England, as well as of the three who are in England. They are all printed together in Mr. Butt's pamphlet, which was produced at the trial. Therefore the Counsel for the defendant were informed of every circumstance, and they might, if they had thought it would serve their client, have called all these persons as witnesses. 3Ir. Justice Le Blanc. — There is no rule better established, than that after trial we cannot receive the affidavits of persons who were called or who might have been called as witnesses. Whatever might be the reason of keeping back their testimony that the Court cannot hear. ^^^^- An affidavit from Major the Hon. William Cochrane was put in to show that he had been ill from January 1 until the middle of February, and that he had written to his brother, Lord Cochrane, early in February, to say that he then had little hope of recovery. A surgeon's affidavit was put in to corroborate his account of the illness. Then Lord Ellenborough said : p. 570. This affidavit is not even material to shew that Lord Cochrane was in possession of his brother's letter previous to the morning of the 21st February, so as to account for a connexion existing in his mind between the note he on that morning received, and the state of his brother's health, which should induce him immediately on the receipt of it to return home ? Lord Coclirane. — I was not present at the trial, or those witnesses would have been examined. Ibid. Lord EllenboroiigJi. — But those witnesses woidd not have gone to this point, and your mind must have been drawn to it at the time you made your affidavit, when you came to mention your brother's illness ? Lord Cochrane. — My brother's affidavit states that he wrote to me early in the month and I received his letter on the Friday previous to the fraud. Lord Ellenborough. — That was capable of being more distinctly . verified. Mr. Justice Bayley. — The original letter is not annexed to the affidavit ? I THE LAW AS TO NEW TRIALS 141 Lord Cochrane. — It is not. I had no idea of bringing the letter of my brother before a Court of Justice. It will be recollected that in Lord Cochrano's affidavit of the 11th there is no mention of an illness, but only of an accident which might have happened to his brother. An affidavit of De Berenger's was put in, pleading for merciful treatment. Mr. Butt also made a speech asking for a new trial. I must here call attention to a matter that has been the subject of misconception\and to Mr. Atlay's remarks thereon. It lias been pressed upon me that, to the lay mind, it appears Atlay, as though Lord Ellenborough, in forming one of the Court which P- ^'^^• heard and determined the motion, was in efiect sitting to deter- mine an appeal from himself. This is a misunderstanding, due to a misapprehension of the procedure by which new trials were moved for and granted or refused in civil and criminal cases. In Lord EUenborough's time, and for many years after, it was the unvarying custom for the judge who had tried the case to be present when the application for a new trial was heard by the Court sitting in Banc, if he was a member of the Court. The foundation of the application would be the judge's notes, and they were read over to the Court by the judge who had tried the case, if a member ; if, however, the motion was made in the King's Bench with regard to a case tried before a Baron of the Exchequer or a Justice of the Common Pleas, the latter would send a copy of his notes, which would be read in Court by the junior puisne present, and, if need be, a personal interview with the judge who had presided would be sought and obtained. If, however, the judge who had tried the case formed one of the Court, he not only read over his notes, but gave a full state- ment as to how he had ruled and decided, and not unfrequently : there would be a strong difference of opinion expressed by the ') Counsel as to what had actually taken place. The notes having \ been read. Counsel were heard, and the various members of the ,C Court gave their judgments. The fusion of the old Courts of Common Law, together with A recent legislation have altered this but in Lord EUenborough's * time it would have been unprecedented and highly inconvenient for the judge who tried a case to have absented himself from a •ci. discussion where his presence was required. 142 THE GUILT OF LORD COCHRANE IN 1814 'Trial,' Park and Eichardson both addressed the Court in '^' ^'^' mitigation of punisliment on behalf of De Berenger, and Serjeant Pell and Mr. Denman spoke on behalf of Holloway, Sandom, and Lyte. Mr. Gurney then rose, and after a few preliminary remarks said : It may however be fairly urged for all these three defendants, Sandom, Holloway and Lyte, that they did not aggravate their case at the trial, in the manner in which the other defendants aggravated theirs. As to the defendant De Berenger, it appears that he was the hired and paid agent of Lord Cochrane, Mr. Cochrane Johnstone and Mr. Butt : and having received his wages he was attempting clandestinely to quit the country. If he had effected that purpose, he would have escaped punishment himself, and would probably have defeated justice with regards to the others. But, ray Lords, his case has been greatly aggravated, as indeed have the cases of Lord Cochrane and Mr. Cochrane Johnstone, by attempts to defeat public justice, as absurd as they were wicked ; p. 584. y^,^. ^^^ ^y^g swearing before the trial, all the swearing at the trial, and all the swearing to-day, has •proceeded on the presumption, that if men will have the hardihood to swear, there will he found those who toill have the credulity to believe.'^ Pieferring to the Tahom-din-De Berenger correspondence he said : p. 584. If the letters were written at a period subsequent to their dates, they were fabricated for the purpose of constituting an artificial defence. If they were written at the time they bear date, then they were equally fabricated for an artificial defence : and at the moment of committing the crime, the parties were providing the means of a false defence, in case they should be detected. There was a flat contradiction between Mr. Tahourdin, and the letter Mr. Tahourdin produced : whether the evidence of the witness were true or the statement in the letter were true matters not : the contradiction independent of other circumstances shews the whole of this transaction was one premeditated scheme of fraud. ^ The italics are mine. — Ed. -V i a. ATTEMPT TO DECEIVE ADMIRAL FOLEY 143 Then he commented on the fact that his learned friends who were of counsel for Lord Cochrane, whose ability, whose discretion and whose zeal, no man can question, did not venture to put to that servant (Dewman) a question as to the colour of De Berenger's coat, and that they did not ' 'Wal,' venture to call the other two servants, one of whom at least was in attendance, while Lord Cochrane might easily have detained the other in England. Then he pointed out that Lord Cochrane's services had neither been forgotten nor unrewarded by his Sovereign or his countrv. "^ For all this, what return has he made ? — he has engaged p. 687. in a conspiracy to perpetrate a fraud, by producing an undue effect on the public funds of the country, of which funds he was an appointed guardian, ^ and to perpetrate that fraud by falsehood. He attempted to palm that falsehood upon that very Board of Government under the orders of which he was then fitting out, on an important public service, and still more as if to dishonour the profession of which he was a member, he attempted to make a brother officer the organ of that falsehood.^ Though little attention has been paid to this point, I have See prefa always myself considered that this, the fourth count in the ^^' ^' indictment, was the most serious part of Lord Cochrane's offence, and one that should always be taken into consider- ation by those who blame the judges for the severity of the sentence. Here was an officer on actual service and full pay, in command of a line-of-battleship, utilising his leave of absence from his ship and his knowledge of nautical matters, to deceive his own Admiralty, with false war news in time of war for the purpose of a private speculation of his own. And when one takes into consideration that the man whom he tried to make a fool of, to use as an instrument of his fraud, was no other than Admiral Sir Thomas Foley, who had commanded a line-of-battle ship at the battle of Cape St. Vincent, who had been Nelson's flag-captain at Copenhagen, and who had led the British fleet into action ^ As a member of the House of Commons. " The italics are mine. — Ed. —/ 144 THE QUILT OF LORD COCHRANE IN 1814 at the battle of the Nile, I cannot consider Lord Cochrane's offence to have been a mere peccadillo.^ ' Trial,' When Mr. Gurney had finished his speech the defendants p. 599. . were committed, and ordered to be brought up on the next day to receive the judgment of the Court. Sir Simon Le Blanc, the senior puisne Judge, pronounced sentence on June 21. He recapitulated the evidence and said : P- 598. Though the Court could not consistently with its rules hear the application for a new trial made by my Lord Cochrane within the first four days of the term, yet still it was willing to afford the opportunity at any time to state circumstances which might operate on the mind of the Court to shew that the verdict had been improperly come to, and that the evidence did not justify it. The Court has deliberated upon the case, and the Court cannot, in this instance, feel itself justified in measuring out justice to one by a different measure from that in which justice would be measured out to others. Mr. Justice Le Blanc then pronounced the sentence of the Court, which was that Lord Cochrane and Mr. Butt should pay a fine to the King of £1,000 each, Holloway £500 ; all six defendants present in Com't should be im- prisoned in the King's Bench for twelve months, and that during that period Lord Cochrane, De Berenger, and Butt should be set in the pillory opposite the Stock Exchange in the City of London for one horn-, and the defendants were to remain in prison until their fines were paid. Li consequence of his absence no sentence was passed on Cochrane Johnstone. This sentence has frequently been described as if it was Lord EUenborough's sentence only, or as if he unduly influenced the Court. But the following passage from the speech of Mr. Justice Bayley when passing sentence on Mr. Butt for libel in 1 What would the Russians or the Japanese have done to one of their captains if he had sent in false news under similar circumstances during the late war ? The pillory is out of date, but if the captain of one of our ships in the Thames was to send false news to an admiral at Dover his fate would be unenviable. SENTENCE OF THE WHOLE COURT 145 June 1817, shows that it was the sentence of the whole Court of four Judges and not of one Judge only. It appears that you, among others, were put upon your trial in this Court, and after having been convicted by a jury of your • Trial of country of a particuhir offence. Of the nature of that offence I ^^f- ^"tt>' shall now say nothing further than this, that upon a very cool, careful and deliberate consideration of all the circumstances of the case, the Judges of the Court each formed his own opinion for himself, and thought that they could not consistently with the demands for justice pronounce a different judgment from that which in that instance they did pronounce. That was not the sentence of Lord Ell^borough, unconnected with the other judges of the Court, but on this occasion, as upon all other occasions of sentence, each judge has an equal voice with all the rest ; and I will say this because I know it, that I knoAV of no instance where tiie judges have been overborne by the opinion of any other judge. That Lord Ellenborough was not in the habit of inflicting the pillory lightly, or on his sole responsibility, is shown by the following extract from a speech of his in the House of Lords on July 5, 1815, when he had been twelve years Chief Justice : — That he himself had never inflicted the punishment when Hansard, alone on circuit, except in one instance, where he ordered two ^jogLg persons to be put in the pillory for having taken a bribe for assist- ing in the escape of French prisoners ; an offence which the legislature soon after made felony punishable by transportation. Li the course of the same debate Lord Eldon said there were offences with respect to which it would be unwise to abolish the punishment of the pillory, for instance, cases of perjury and fraud, or cheating and especially in cases of mixed fraud and perjury. Cases might arise where persons might attempt to defend themselves against a conviction for fraud of which they had been guilty, by perjury and subornation of perjury. Now these were the very crimes Lord Cochrane had been guilty of. Lord Cochrane's name was not mentioned in the debate, but his case was evidently in the minds of all the speakers. 146 THE GUILT OF LORD COCHRANE IN 1814 The world has steadily advanced in many ways since 1814. The pillory, however, remained as a punishment for perjury and subornation of perjury until 1837, when it was very properly abolished. All are equal in the eyes of the law, and the Court of King's Bench could not take into consideration Lord Cochrane's distinguished services without rendering themselves liable to an accusation of judicial partiality. Clemency is a prerogative of the Crown, and it was very properly exercised in the case of Lord Cochrane, by the remission of the pillory portion of the sentence. The Crown could take Lord Cochrane's services into consideration, the Court of King's Bench could not. CHAPTER XIV DEBATES IN PARLIAMENT, 1814 Lord Cochrane's conviction and sentence was followed almosb immediately by his dismissal from the Navy, and deprivation of the Order of the Bath. As both Lord Cochrane and Mr. Cochrane Johnstone Hansard, were members of the House of Commons, it became neces- j^?""'- ^^' sary for that body to take some notice of the result of the trial. On June 24, Mr. Holmes made a motion for papers „ 231. in connection with it. He was seconded by Mr. A. Browne, who appears to have been the iirst to start the erroneous idea that technical rules had prevented Lord Cochrane from being heard as to the reasons why he wished for a new trial. The Attorney-General, Sir William Garrow, rose to p. 238. reply. His speech is so clear and so much to the point that Mr. Atlay has reprinted the whole of it in the appendix to his book. Space prevents me from giving more than a few extracts. If the noble Lord inveighed against his sentence he was one of Atiay, a numerous class. P- ^^^" But the honourable gentleman had maintained that the individual in question had taken every possible means to obtain a re-hearing of his case but in vain ; because the practice of the Court was so fenced round by technical rules that all his efforts were rendered abortive. The direct contrary of all this was most unequivocally true. . . . It was with great pleasure, however, he stated tliat no technical rule however wisely formed, or however long it might have been acted on, was permitted in a British court of justice to work injustice towards anyone. The court would find a season for 147 l2 148 THE GUILT OF LORD COCHRANE IN 1814 doing justice. It would make technical rules bend, when they stood in the way of substantial right. . . . Let the House mark the sequel. The counsel for the defen- dants moved on a subsequent day for an arrest of judgment. If Butt had succeeded in this application, if judgment had been arrested with respect to him, it must have been arrested with respect to every one of those implicated with him in the same offence. . . . What was the next proceeding ? The noble lord did precisely that which the technical rules of the Court had prevented him from doing on the preceding day. He read from a paper which was very ably written, and which evinced a profound know- ledge of the law, a minute and scrupulous examination of the evidence. . . . But the Court had heard from the noble lord all that could have been possibly addressed in his favour. The paper which he read in Court was drawn up by no mean hand, and had evidently the finish of a master. Mr. Horner for somewhat different reasons opposed the motion, and Mr. Wynn said : June 24, Had anything been said against the justice of the Court, or Wyn'n's ' had any unfairness on the part of the judge from whatever cause, speech. whether of a political nature or otherwise been alleged, he should feel it a case where the House might with propriety enquire into the proceedings of the court of law, but in this case no adequate grounds had been stated to induce the House to go into the enquiry. Hansard, The motion was negatived. On July 5 the Cochrane xxxiii. 138. pg^gQ came up again. M'Eae, who was supposed to be abroad, presented a petition, saying that he was fully competent to unveil the whole mystery and to exculpate Lord Cochrane, but that the Stock Exchange Committee hearing this, included him in the indictment to prevent his giving evidence at the trial, and that, conscious of their iniquity, they paid all his legal expenses. He wished to be examined at the bar of the House. Soo second rjj^g Housc refused to receive his petition. He had repoi-t ot tho Stock already offered to tell all he knew for £10,000, he was turning commitfcc. iuformcr at too late an hour, and his conviction disqualified LORD COCHRANE' S SPEECH 149 him from giving evidence in a Court of law. He was after- wards arrested and sentenced to twelve months' imprison- ment, and I have never been able to find that he ever disclosed anything. The Speaker called upon Lord Cochrane and Mr. Cochrane Johnstone. The latter had been seen at Calais three days previously and had not returned. Lord Cochrane rose and read his speech from a written jxiper which might be of interest to philologists. I am sorry that I have been unable to obtain a full report of this speech, for as the strong expressions he made use of in mentioning the Judge caused a mur- nuir in the House, the Speaker intervened, cautioned the reporters, and told Lord Cochrane that the House ' could not suffer virulent invectives or words to be made use of by him which were not fit to be heard if not proved.' A contemporary pamphleteer has described this speech 'Remarks as containing ' the coarsest and grossest terms that language o" Lord '^ can supply,' and the asterisks in the next few paragraphs t'ochrane.' are Hansard's, not mine. I have no doubt that it was a fine specimen of Eegency and quarter-deck oratory — sulphurous and briny. Having applied plenty of asterisks to the Judge, he next attacked the jury as follows : — Have I been tried by a jury of my country ? * * Sir, I have been tried by twelve men ******** jf there be any meaning in the word packed as applied to juries ;***** To pack a jury means to select, by one of the parties, men, who, it is known will decide, as that party wishes them to decide. And was not that the case in the present instance ? Was not the master of the Crown office **********. Yov what House of other purpose than that of securing * * * * was the case juiv'g"'"" removed from the Old Bailey to the Court of King's Bench ? i«i'i- I ask for what other purpose ? and I defy anyone to answer me, unless he add that it was also for the purpose of Q^/^ii-piy^fy •»" 'P "TT "V 'K 'I* "l^ 'P I shall satisfy myself as to this point, in having shewn that the jury, whose verdict was produced in the House ****** and that it was as juries in such cases are *********. 150 THE GUILT OF LORD COCHRANE IN 1814 And again he spoke thus of the Judge : Throughout the whole of this and indeed every part of the charge, a charge which was never surpassed by ******** * it is obvious Sir, that Lord Ellenborough loses sight of the evi- dence and speaks entirely from his own *****. I have given the above extracts as specimens of the manner in which this speech was delivered. I now come to the definite charges he made against various persons, many of which have been frequently repeated. He began by swearing that he was innocent : he com- plained bitterly of the conspiracy of the Committee of the Stock Exchange, and of having been tried by a special jury instead of a common one. He said he believed that De Berenger could not have been Da Bourg, because the Committee of the Stock Exchange had in a handbill on March 7 described Du Bourg as wearing a brown coat and a red uniform, whereas De Berenger wore a grey coat and a green uniform, and that Mr. Johnstone had told him that De Berenger informed him he could prove an alibi, by at least a dozen credible witnesses and believing that at all events my own innocence would prove my protection. I felt so perfectly secure as to the issue of the trial that I save no Compare . / •' . '^ thia with lustructions to couusel, attended no consultation, and never even Law Maga- ^^q^^ t^j q^jj brief into which a serious error was introduced ; et seq. but leaving the whole business in the hands of my solicitor, I retired to my house in the country, and did not return till two days previous to the trial. On my return to town immediately before the trial, a copy of the brief of Mr. De Berenger was shewn to me by Mr. Johnstone and the case as therein stated appeared to me so perfectly clear, that I solemnly assure the House that I then thought it impossible that he could have been the man who personated Du Bourg. He inveighed against his solicitors ; showed that on June 9 he had complained that Mr. Parkinson had put his foot in his case — had botch' d his case by not calling Mary Turpin, and he read an extract from the daily papers to LORD COCHRANE' S SPEECH 151 show that Wilham Crane, driver of hackney coach 782, had lately been found guilty of atrocious cruelty to his horses. (The William Crane of the trial drove No. 890. Atiay, They may or may not have been the same, see ' Trial.') p* ^^' Then he dwelt on the recovery of his own memory and that of Mr. Butt's, as to the payment of the second £200 to Mr. Butt. He had forgotten a wine merchant's bill for £699 lis. which Mr. Butt has paid for him. He poured vials of wrath upon Lord Ellenborough for haling adjourned the Court at so late an hour. He generally misrepresented the evidence, and told the House that if he had chosen he could easily have smuggled De Berenger on board the Tonnant. But I must point out that though he no doubt could have attempted to do so, it would have been an exceedingly dangerous game to play. The Tonnant did not sail until six weeks after the fraud. De Berenger's presence on board would have soon been known and talked about, and from what we know of him he was not at all the sort of man to be kept hidden in a cask, or one likely to refrain from dangerous conversation. Lord Cochrane then went on to say : On my second attempt to obtain a new trial / ivas indeed Hansard, permitted to speak and I have reason to believe that the statement ^^^"'- ^^'• I then made has convinced many persons in Court, and since then many persons out of Court of my entire innocence. He then read the affidavits placed before the Court on June 20, and those of his servants sworn on June 14. They were much the same as their former affidavits, but Dewman added to his the mention of a portmanteau big enough to hold a change of clothes. Sarah Busk, who had left Lord Cochrane's service on the 21st, said : ' the neck of the \ under coat or such part as she could see was a dark green and he had also with him a military cap.' Mary Turpin said : ' he wore a grey great coat buttoned up with a dark green collar or facing under it,' and that he had a small portmanteau. The affidavit of the housekeeper was to the effect that ^xviii. 576. 152 THE GUILT OF LORD COCHRANE IN 1814 she had not seen De Berenger. She had only seen his cap in the parlour. These affidavits were obviously prepared to meet the observations in Gurney's reply and the Lord Chief Justice's summing-up, and there is evidently some wisdom in the rule by which they were refused a reading in Court. In conclusion Lord Cochrane made a most impassioned appeal : — I solemnly declare that before Almighty God that I am ignorant of the whole transaction and uniformly I have heard Mr. Cochrane Johnstone deny it also. He entreated the strictest scrutiny and a patient hearing. From the accounts that have reached me of this speech, I can only conclude that Lord Cochrane was a most con- summate actor, with his emotions thoroughly at his com- mand, and that the following sentence in Gurney's speech on June 20 had sunk deeply into his mind : — • ' Tliat if men have tJie hardiliood to swear there will always he jound those who have the credulity to believe.'' This oration must be looked upon as one addressed more to the illiterate portion of the electorate of West- minster than to the House of Commons. After Lord Cochrane had withdra\Nai, Mr. Browne moved an amendment to the effect that Lord Cochrane's statements and affidavits should be referred to a Select Committee. The Attorney-General opposed it. He stated with reference to the new trial : Hansard, That rule did not stand in the way of the noble lord ; for ixxm. 0/9. wiiatever he had thought necessary to state to the court had been heard to its fullest extent, and it was the unanimous opinion of the judges that there was no occasion for further proceedings. And as for the formation of the Jury, he said the master of the Crown Office was in fact always one of the most respectable men in the profession, he was not appointed by political favour but by his court ; he held his office during good behaviour, which was the same tenure as that of the Chief Justice. What would those members of the House who served on special juries at the assizes say if they were accused of being packed ? Yet they DEBATE IX HOUSE OF COMMONS 153 were packed quite as much as the jury which tried the noble lord. The master of the Crown office merely turned over the leaves of the book which was given to him by the sheriff, and in the presence of the agents of both parties selected 48 names. Each party strikes 08. one till the number is reduced to 2-i : these 24 are to appear at the trial, and no one knows which 12 will be selected as it depends solely on the presence or absence of the jurymen. It was the same in criminal cases — The Chief Justice never saw this book of freeholders ; the master never saw it till the time of the trial, when the sheriff gave it him ; and he believed it would be difficult to shew that the sheriffs of London of "late years had been disposed to pack juries from subserviency to the Crown. It was not left to the agents to reduce the list, but Mr. Cochrane Johnstone had himself attended, when the list was reduced from 48 to 24. Mr. Brand supported the amendment on the ground that Lord Cochrane had said he would prove how the notes reached De Berenger, and that five persons would prove De Berenger's dress to be as stated in his affidavit of March 11. Mr. Croker declared that no communication whatever, Hansard, either direct or indirect, had taken place between Lord ^^'^'"'• Melville and the Lord Chief Justice as regards Lord Coch- rane's suspension from the command of his ship, Mr. Ponsonhy supported the amendment. Lord Castlereayh remarked : As to the phrase respecting the appearance of De Berenger before the noble lord in the costume of his crime, it seemed rather extraordinary that this circumstance was this night brought forward for the first time. This alleged misdirection of the judge was certainly never mentioned by the noble lord either upon his motion for a new trial or in his affidavits when brought up for judgment. Mr. Whithread and Mr. Stuart-W ortley supported the amendment. Mr. Batliurst remarked : The noble lord in the statement which had been deliberately prepared had urged nothing which might not be urged by any ,-/ 154 THE GUILT OF LORD COCHRANE IN 1814 person convicted of a serious offence. The noble lord had published his innocence ; so had his relation who had absconded. Many individuals whose guilt was proved beyond the shadow of doubt, had gone out of the world 2^i'oiesting their innocence. The noble lord might have a motive for asserting that which was not true. His motive for making his statement was to hold himself up in the eyes of his constituents. The noble lord had said, that a systematic plan had been formed, by his political opponents, to effect his expulsion and ruin. He might have learnt from his friend and relation whose advice had been quoted, and who had told him what he said was never attended to, that he was not of such importance in the House as to make any party care for his absence or presence. Sir F. Burdett supported the amendment, and inveighed against the pillory as a punishment never intended in this country for persons of Lord Cochrane's station. Some speakers declared that Lord Cochrane's speech had convinced them of his innocence, others declared that there was at any rate ground for a new enquiry, but not one voice was raised in support or sympathy with the foul aspersions cast upon Lord Ellenborough. On the motion for expulsion, the House divided 140 for and 44 against. Lord Cochrane afterwards published the list of the minority. I have endeavoured to obtain that of the majority, but I find that unfortunately it was not then customary to record their names. I have given but a short account of the speeches in Lord Cochrane's favour, because Lord Brougham has summed them up so concisely in the following words : — ' Life and One word on Westminster before I conclude. They begin LordBrou<^. **^ throw the blame on George Ponsonby and Whitbread who, ham,' ° without having seen the evidence and ignorant of the whole ■ ■ subject, had the incredible folly to blame the Counsel for not original.^ calling the witnesses. The history of presumption offers no greater instance. We had too good reasons for not calling them, and were I to-morrow to conduct it, I should after the benefit of their advice, still refuse to call any of them, and so would all the profession. WESTMINSTER ELECTION 1814 155 Lord Cochrane's speech had such an effect on the emotional and ilhterate portion of the voters of Westminster that he was brought forward for that constituency. Here he was singularly lucky, for the candidate who would otherwise have walked over the course was his own counsel Brougham, who therefore could not possibly speak in opposition to him. Brougham, as we have seen, at once withdrew in his favour, and some of the electors appear to have bethought themselves of Sheridan. But Sheridan was then past his prime, and no one who had ever been a friend of the Prince Ke^nt's would at that time have had the slightest chance at Westminster, And on July 12 Brougham had written as follows to Lord Grey : — Temple, July 12, 1814. Dear Lord Grey, You will before this time have seen the event of the ' Life and Westminster election — at least what is sure to be so — the ^""^'^ °f Lord return of Lord Cochrane without opposition. Brougham,' Everything was arranged on Tuesday last, and I should have "' '^' walked over the course. Lord Cochrane had never been mentioned ; but the debate especially George Ponsonby's and Whitbread's and Wortley's speeches preferring his assertions of innocence to the verdict of guilty — had the immediate effect of putting it to the Westminster men to condemn him and they all said ' Though we want to get rid of him as a member yet it is now cast upon us to declare him guilty and upon evidence which forty- four of the House of Commons deem insufficient.' This has proved decisive ; and though many of them wished a middle course that he should be declared innocent and not elected, I among others told him that was not the way to serve Lord Cochrane. It is understood that an arrangement has been made to choose him this one time, and that he is not to come forward again in case of expulsion etc. The great thing was to keep all together and avoid a splitting. In this they seem to have succeeded perfectly. Burdett's declining influence has been somewhat revived by this ; but I fear that the extreme folly of attacking Lord Cochrane's attorneys, etc., will lead to such a defence on their ^ 156 THE GUILT OF LOUD COCHRANE IX 1814 part as will damage both Lord Cochrane and Burdett. I fairly warned them of the danger. Lord Cochrane partly listened, Burdett would not. Lord Tavistock and his brothers, with many others, had most warmly come forward for me, and it stands as well as possible on the whole. Yours truly, H. B. Hansard, XXXV. 370. Atlay, p. 215. Meeting on July 11. The ' Autobiogi'aphy of a Seaman ' curiously enough omits all mention of Brougham's candidature, and only refers to the far less serious pretensions of Sheridan, yet Lord Cochrane knew all about it, and in 1818 in a debate in the House taunted Brougham for having been a candidate for Westminster. Brougham answered him as follows : — He however was one of those who tendered their tribute of applause to the electors of Westminster for the motives of their conduct generally in defeating the Government influence, and more especially for their humane and manly behaviour in the last election of the noble lord after his expulsion from that House. He confined himself however, entirely to the motive which he believed influenced them in that proceeding, and which was their resentment at the infamous sentence, including the punish- ment of the pillory, which the Court of King's Bench had passed upon him, and but for which sentence the noble lord would not have been re-elected. At a meeting in Palace Yard on July 11, the high bailiff declined to read a full and unmutilated account of the defence made by Lord Cochrane in the House of Commons. Sir Francis Burdett then addressed the meeting. He disregarded the facts of the trial and made a fine rhetorical display. He said that Lord Castlereagh had prevented the people from reading Lord Cochrane's defence, whereas it was the Speaker who first cautioned the reporters. He accepted all Lord Cochrane's statements, and said : He would not now find fault with the jury that tried Lord Cochrane (who were as he was informed very respectable persons) ; but he would find fault with that mode of picking out lav. MEETING AT WESTMINSTER 157 the jury which Lord Cochrane had called packing them. He did ^tia not mean to find fault with the verdict which they found upon the P- 215. evidence that was laid before them — evidence that was so skilfully and so artfully got up against him by those who had the arrange- ments of the prosecutor's case, and which had been so feebly met by those who undertook the defence of Lord Cochrane. He repeated the new trial story regardless of its exposure by Sir William Garrow, and said that Lord Cochrane's real crime was his bold and independent conduct. Alderman Wood told the meeting — He had heard from one of the jury that had the evidence Time.% since produced been brought forward at the trial, or had Lord "^"jy ^'^' Cochrane been in Court and made his own defence, it would ^tlav have been impossible to have found him guilty. If necessary p- 2lc. he could bring the individual alluded to before them. At another meeting on July 16 Mr. Alderman Wood again referred to this juryman, some of the newspapers having commented on the subject. But this jurj^man's name still remains unknown, and an anonymous juryman is still, and will probably always continue to be, an important part of the stock-in-trade of any one who is dissatisfied with a verdict. The curious point is that this same juryman does not appear to have complained of fatigue. However, he was good enough for a Westminster political audience of that period, and Lord Cochrane was re-elected for West- minster on July 16. On the 19th a fresh debate took place on Lord Ebrington's motion that the pillory portion of Lord Cochrane's sentence Hansard, should be remitted. On July 5 the House of Commons xxvm. 76i. had only the newspaper reports of the trial before them. But in the interval, however, between the 5th and the 19th, the shorthand notes of the trial had been printed so that the speakers had had an opportunity of making themselves better acquainted with the details of the case, and the effect of this is shown in the course of the debate. Lord Cochrane's attack on his attorneys had also caused them to move in their defence. Lord Ebrington began by reading a letter from Lord Cochrane, strongly protesting against the motion as having ^ 158 THE GUILT OF LORD COCHRANE IN 1814 a tendency to bring down on me a greater indignity than any that has been offered me by my enemies. Nor can I, for a moment consent that any past services of mine should be prostituted to the purpose of protecting me from any part of the vengeance of those laws against which I if at all, have grossly offended. Italics in If 1 cim QuUty, I ricJily merit the wJiole of the sentence that has original. jge,^ passed upon me ; if innocent one penalty can not he inflicted with more justice than another. Lord Ehrington and his seconder, Lord Nugent, touched on Lord Cochrane's services, and undoubtedly made out a good case for remission. Mr. Wynn referred to the case of a captain in the Navy who had been sentenced to the pillory for fraud (in 1803), but had been ' absolved from that ignominious punishment on account of his services.' Several other members spoke, and Lord Castlereagli told the House that he could not admit the doctrine which went to establish privileged orders, as it were, in the country, with regard to the punishment for crimes, upon a principle of aristocracy most dangerous and unwise. And he went on to say : — ■ ' That the Crown had taken steps to interpose its mercy with respect to the infamous part of the punishment not only as far as it related to Lord Cochrane, but to all the other parties.' As many of the speeches, however, referred to the facts of the case, I shall quote from some of them. Mr. Serjeant Sheylierd, Solicitor-General, said that Lord Cochrane had accused his counsel of neglecting his case. Now he (Mr. Shepherd) could not, he confessed forbear expressing his surprise at this extraordinary charge, particularly when he looked at the names of the counsel who acted for the noble lord, whom he knew to be some of the most able and eminent in the profession ; and among them was one, at least it was impossible to suspect of any relaxation of effort from the influence of party spirit, against the noble lord (probably alluding to Mr. Brougham). He never could persuade himself to invade professional confidence. But this without any invasion he could state as a SIR FRANCIS BURDETTS SPEECH 109 positive fact, that all the instructions upon which the brief was drawn up, were received fiom Lord Cochrane himself ; and that the brief after it was drawn up, together with the statements of the witnesses by which it was proposed to sustain it were read over by the noble lord by whose suggestion a correction was made in it. Yet this noble lord, in the Court of King's Bench, but especially in that House had spoken in a high tone of confidence, that he had given no instructions to his lawyers, that he had never read his brief — nay that he had been totally careless about the conduct of his defence, so much, indeed, did he rely on the consciousness of innocence. ^ And on the question of a new trial as a reason for refusing it he said : The accused might intentionally withhold testimony on his trial with a view to make an experiment as to the evidence for the prosecution ; and then if he failed he might come forward and try his hand again. Sir Francis Burdett, Lord Cochrane's Westminster colleague, Hansard, declared that Lord Cochrane's counsel did not defend him with ^^^"*- '^^^• that ability they might have exerted. He did not positively know that the noble lord had read the brief, but he could believe the fact might be so, and yet that he was ignorant of its contents. He who knew the noble lord well, had no doubt that at the time he was reading the brief, his head was dreaming or scheming over the plans which withdrew his attention from the subject. He wished to know if any alteration had been made in the Judge's charge and to examine the shorthand writer at the bar. Tlie Attorney-General {Sir William Garrow) defended the Solicitor-General's speech, and added : The honourable baronet professed to dwell upon the newspaper accounts of the trial ; but now there was an account of it published, not given in the hurry of the moment when it occurred, but taken by a person known for the fidelity and accuracy of his labours. In that account an important alteration appears in the charge of the judge. He did not know that it had been submitted to the judge for his revision, but he dared to say it was, as the practice was a common one for the sake of obtaining the greatest possible accuracy. ^ 160 THE GUILT OF LORD COCHRANE IN 1814 The Judge might alter a phrase or a word to make that correct which before was not so, but if the Hon. baronet meant to state that the noble lord wickedly altered any portion with the intent of giving a different and new meaning to what he said, or to soften down any part of it, he would venture to assert, not only from his own knowledge of that learned lord, but of all who sat on the bench, that there was not one of them who would descend to such a jDractice. It was well known that in all conspiracies each individual conspirator had his part assigned to him. Lord Cochrane could not take an active part ; he was too well known to go about it. His person would have been recognised. He (the Attorney-General) had not heard the whole of the evidence at the trial, but he had attended to every tittle as read over by Sir Simon Le Blanc, and he could lay his hand on his heart and express his firm conviction that when the existing prejudices against the constituted authorities had subsided, the grand jury, the petty jury, the judge who recapitulated the evidence, and the four judges, who refused to grant a new trial and who thought the crime deserving of an infamous punishment would all be considered as having done their duty. At the same time he was pleased to find that a portion of the sentence was to be remitted. Mr. Holmes said he had just received a letter from Lord Cochrane which he read to the House. It asserted he had ' never read the briefs, although a part of them had been read by Mr. Parkinson, a person See also Connected with his solicitors. The noble lord had 'also sent ^i^azine the brief, part of which was marked, and in the margin were -'^'- the words ' Kead this to Lord Cochrane.' This memorandum, the hon. gentleman remarked, was confirmatory of the noble lord's statement. The Solicitor-General said : He did not actually state that Lord Cochrane had seen and read the briefs before they had been delivered to Counsel ; but what he said was that instructions had been taken from Lord Magazine, Cochrane for the briefs, which were read in his presence and xi. et infra,, approved of by his lordship: and that saving the indictment Supra',p.85. the wholc of the briefs had been prepared under his immediate Infra, p. inspection. He had further stated on the authority to which he had THE SOLICITOR-GENERAL'S SPEECH 161 alluded that the evidence of Lord Cochrane's servants, as taken down by the attorney's clerk was read over to him that he made an alteration in the evidence of Thomas Dewman. Thomas Dewman who had confounded the arrival of De Berenger at his master's house on the 21st with another oificer who had called on some previous day — and with that correction the brief was sent to be engrossed, and was afterwards sent to counsel. He begged to notice one part of the draft in which the words ' read to Lord Cochrane ' were inscribed in the margin. This was a part in which three or four lines were erased. ^ This no doubt, had been done by his lordship. What those lines con- tained could not be know^i, although it was evident, from this circumstance, the noble lord had not been inattentive to the text which was submitted to his judgment. Mr. Ahercromhy said that : Lord Cochrane's counsel, apprehending that Lord Cochrane would allege neglect on their part and more particularly with respect to the brief, had furnished him with a statement of facts which to the best of his recollection were as follows ; a brief, the xxviii. 790. House would observe, was divided into two parts the statement or recital, and the proofs, or the evidence it was expected to obtain in support of the statement. Now according to his recollec- tion of the facts to which he had alluded, the first part of the brief (the recital) had been read over to Lord Cochrane at one period, and the second part (the proofs) at another period, and on the last. Lord Cochrane made some observations which were strictly attended to; Mr. Wetherell had witnessed the statement of Lord Coch- rane's counsel, to which his hon. and learned friend had just adverted and entirely coincided with him in his recollection of the facts. ^ Was this Mary Turpin's statement that De Berenger's coat was red ? See infra, p. 305. Hansard, M ^ CHAPTEE XV QUARREL WITH SOLICITORS On July 25 Lord Cochrane wrote to Messrs. Farrer, sajdng that in consequence of what had passed in the House of Commons he felt it his duty to call on them for an answer to the questions which he enclosed. They are thirty-four in number, and will be found in the Appendices attached to the ' Letter to Lord Ellenborough ' and in the second volume of the ' Autobiography of a Seaman.' The latter work also contains Messrs. Farrer's answer, which was to the effect that they declined to answer an}' more questions. They concluded by saying : ' We have agreeably to your Uncle's desire, made out, and now beg leave to enclose you our bill on that business, in which you will find most of the facts to which your questions relate stated as they occurred.' Now Lord Cochrane never dared to publish this bill of costs himself, though he would undoubtedly have done so if by so doing he could have proved the carelessness of his solicitors. Yet on August 10, while renewing his attack on his solicitors, and ignoring most of their explanation, he wrote to the electors of Westminster : — ' I freely release my solicitors and counsel from every obligation of secrecy.' Still, they did not publish it either, and I can only conclude that Lord Cochrane knew that there were some items in the bill that they could not pubhsh, possibly because they affected a third person. From the historical point of view it would be very desirable that this bill of costs should be pubhshed in its entirety. Both sides have favom-ed the pubHc with extracts from it. Some of them I have already referred to, but none of them, whether originally 162 AFFIDAVITS OF WEST3IIXSTER TRADES 31 EN 163 in the ' Letter to Lord Ellenboroiigh ' or in the Law Magazine in 1860 or 1S61, corroborate either Lord Cochrane's state- ments, or his accusations of neghgonce. Besides the extracts to which I have referred, the Law Magazine printed the statement prepared by Messrs. Farrer in answer to Lord Cochrane's attack on them in the House of Commons. I have reprinted at the end of this book the whole of the second article which appeared in the Law Magazine. Those who would reject its testimony must perforce believe that a represent^ive of Messrs. Farrer endeavoured to influence the reviewer of the Law Magazine in 1861 by means of forged documents, an idea which I only mention for the purpose of rejecting. There is absolute contradiction between Lord Cochrane's See Broug version of his attitude towards his defence and that of Messrs. ^^^l^ Farrer. As the solicitors had before them Lord Cochrane's '*"'*> p- ^*- letter, dated June 7, the day before the trial, * desiring that Mary Turpin's statement that De Berenger's coat was red should be expunged from the brief,' it would have been madness to have called such a witness for the purpose of proving the coat to be green. While quarrelling with his solicitors. Lord Cochrane set to work to procure affidavits impugning the character and the evidence of the witness Crane. The ' Autobiography ' styles the makers of these seven affidavits as respectable tradesmen. Of these affidavit makers. Miller and Kayment swore that they saw the supposed messenger get out from ^tiay. a chaise into a hackney coach. Miller said that he was ^ dressed in gi'een with a grey great coat, and that he saw no red on any part of his dress. Eayment only went so far as to say that the coat underneath appeared to be a dark green. The other five were by people who gave Crane a most villainous character. King and Baldwin declared that he had told them that he would swear black was white if he was well paid for it. Critchfield declared that Crane had bought a new hackney coach since the trial ; whUe Yeowell and Lovemore swore that Crane had told them that he ^ 164 THE GUILT OF LORD COCHRANE IN 1814 had told the Stock Exchange Committee that the person he had taken from the post-chaise and four was no other than Lord Cochrane himself. These affidavits are printed in full in the appendix to the ' Letter to Lord Ellenborough,' with which I am about to deal. On this evidence, and on that of his servants, Lord Cochrane would, if innocent, have indicted Crane for perjury, ^ instead of merely pelting him with affidavits. To have done so would have been to remedy the alleged mistake of his solicitors and counsel at the trial : would have enabled him to put his four servants — Dewman, Davis, Turpin, Busk and his seven affidavit makers — into the witness-box to be tested by cross-examination, and, if not allowed to enter the box himself, he could have made great capital out of the prohibition. This would have been a near approach to a new trial, and his non-prosecution of Crane was a practical acquiescence in the decision of his counsel, that it would be unwise to call his servants as witnesses. This non-prosecution of Crane no doubt tended towards establishing the state of public opinion which caused the extraordinary division of 89 to 0, in the House of Commons, on April 30, 1816. As long as he failed to get a new trial, he could get some people to believe him, but he well knew that any real investi- gation would cause the loss of those friends who still adhered to him. The object of these attacks on Crane were for the purpose of misleading the public into believing that the sole evidence of De Berenger's dress was that of Crane. And as long a& he was not tried, it might be possible so to delude them. But whether De Berenger wore a red coat or not, it would still have been proved that Lord Cochrane had given him a disguise, and that he had afterwards provided him with money with which to leave the country. Lord Cochrane employed the first few months of his detention in preparing a vindication of his innocence, and a series of attacks on the Chief Justice, wliich took the form of a pamplilet of 177 pages, including appendices, styled ' A Letter to Lord Ellenborough by Lord Cochrane.' ^ LOUD COCH BANE'S LETTEB TO LORD ELLEN BOROTJ Gil 165 William Jaclvson, Lord Cochrane's secretary, whom I WiiHam have already mentioned and shall have occasion to mention cvWenTOf again, claims the authorship of this pamphlet. At least he H''?^ ^°'"' ° ' . ^ jr I inittee for told the Commissioner sent to examine him by the Lords I'nvi.'eges, Committee that while Lord Cochrane was in the King's '' Bench he wrote a pamphlet which he considered conclusively established Lord Cochrane's innocence, and I have been unable to find any trace of any other pamphlet of this description. The letter is full of complaints of the Chief Justice's conduct, but Lord Cochrane abandons the charge against him of having falsilied the revised edition of his summing-up, and contents himself with asserting that even in Gurney's report it is objectionable and not warranted by the evidence.-^ :-^ On this point it may be observed that in 1814 Lord Ellen- borough had been on the Bench for twelve years, and had been in the habit of taking notes of evidence nearly every working day during that period. No notes can be infallible, but taking into consideration the practice and training of the Chief Justice, I do not think it follows that, in cases of slight difference between the notes of the evidence and those published in the report, Lord Ellenborough should always be the one at fault. And in one instance at least there exists the clearest proof to the contrary, for at Davidson's trial Mr. Gurney swore that the evidence of Davidson as given in the report taken from his shorthand notes was correct, ' excepting that the word " finally " had been accidentally omitted.' Now, in Lord Ellenborough's summing-up of Davidson's evidence he says : ' he quitted my house finally on the 27th of February.' A great portion of Lord Cochrane's ' Letter to Lord Ellenborough ' is devoted to the colour of the uniform worn by De Berenger on his visit to Green Street. The writer declares in favour of the change having been effected in'the post-chaise during the last stage, and probably between the coach-stand at the Three Stags, Lambeth Road, and ^ The Gurney referred to was the shorthand reporter, not the counsel of that name. Atlav p. 22 Timfs, July 22, 1816 166 THE GUILT OF LORD COCHRANE IN 1S14 at the Marsh Gate (p. 11). Now the distance was only a ' Trial." fcw hundred yards, and in the evidence of Barwick we find : ^' ■ 'I observed a post-chaise with four horses ; it had galloped at a very great rate ; the horses were exceedingly hot.' A post-chaise drawn by four horses, swaying along over a jolting road, was not a favourable situation for a man to effect a rapid change whose hands were probably numbed with cold. But at p. 73, Lord Cochrane himself shows the difficulty of effecting this change in a short time : — And certainly, there were so many things to do before a change of coats could be completely made, that it would unquestionably be a work of time. De Berenger would have had to take off his grey great coat to open his portmanteau, to take out his green coat, to take off his scarlet coat, to put on his green coat, and his grey great coat, to replace his scarlet coat in the port- manteau, and strap it up before the operation could be fully effected. Lord Ellenborough is charged with suppressing evidence in favour of the change having been effected as above mentioned, and with assuming beyond all doubt that De Berenger appeared before Lord Cochrane in the full panoply of Du Bourg. Now, it is little short of monstrous to impute partiality to Lord Ellenborough, because he put to the jmy and April 1861, proceeded to comment on the very case which had been vol. cix. presented to them for the defence by Serjeant Best. The Quarterly Beview put this clearly : In regard to the specific issue of fact upon the colour of the uniform, and the inferences to be drawn from that colour, Lord Ellenborough could not consistently with his duty have charged less forcibly or clearly than he did after the course taken by Serjeant Best. The gauntlet had been thrown down upon one particular issue as the crux of the case against Lord Cochrane. The defending counsels with the fullest knowledge and in the exercise of the most deliberate discretion had refused to join issue thereupon, and virtually admitted the statement of the prosecu- tion with all the consequences it might logically involve, there LOBD COCH BANE'S PAYMENTS TO DE BERENQER 167 was no course open to the judge but to take what was so admitted against the interest of the defence as a matter incapable of disproof. While on the subject of the dress, it is worth while observing that the coat worn by De Berenger in Green Street is now asserted by Lord Cochrane not to have been part of the uniform of the Duke of Cumberland's sharpshooters. I had no distinct idea whether the coat and cap were really the 'Letter to uniform of Lord Yarmolith's corps or not ; but when he told borough,' me that he could not with propriety wait on Lord Yarmouth in l'' '^• that dress, I naturally conceived that, as he had prepared himself to go on board to exercise the sharp-shooters, and came to see me for that purpose, it might be a dress made for the occasion. Lord Cochrane then proceeds to give an explanation as to how the second sum of £200 derived from his cheque of £470 had got into the hands of Mr. Butt, fi'om whom it eventually reached De Berenger. It was not until very shortly before the trial that I had the PP- m-io- east intimation or idea that the produce of that note had also been traced to De Berenger, and it was not even attempted to he accounted for at the trial, because it was not till after my arrival at this place (King's Bench prison, where he was committed on June 20) that I could call to mind in what manner that note had passed into the hands of Mr. Butt. I am indebted to my uncle, the Hon. Basil Cochrane, for urging my recollection on this subject, and particularly putting the question whether I had not at any period subsequent to the 19th February deposited in Mr. Butt's hands any money for the payment of my shop-bills. And I was then struck as by electricity with the recollection of the fact of having paid into his hands a thousand pound note, and a tivo hundred pound note for that express purpose. Then he brings documents to show that Mr. Butt on App. vi. of March 8 paid nearly £700 for wine shipped on board the Lord Eiien- Tonnant. I can scarcely beheve that both Lord Cochrane '^°''°"gi'-' and Mr. Butt lost all recollection as to a payment of £1200 at a time when it was most important they should recollect it, and then remembered all about it after sentence had 168 THE GUILT OF LORD COCHRANE IN 1814 Atlay, p. 223. Campbell's ' Lives of the Chief Justices,' 3rd edition, i V. 303. been passed, and when there was no likelihood of their statements being subjected to cross-examination. This statement, however, not only shews Lord Ellenborough as abstaining from comment on a part of the case where it might well have been expected, but liberates Lord Cochrane's advisers from suspicion of negligence or carelessness regarding it, while it shews over what very thin ice Serjeant Best had to proceed in his address to the jury. With regard to the attacks on the Chief Justice for his conduct in reference to the adjournment, and for what Lord Cochrane calls his frivolous and pretended reasons for dividing the cause between the evidence and the defence, I have already dealt. The ' Letter to Lord Ellenborough ' concludes with an attack on my grandmother, Ann Lady Ellenborough, whom it accuses of smuggling contraband goods. This story is repeated by Lord Campbell. My father, the Hon. H. S. Law, told me that there was no truth in it. Now that I have traced its origin to Lord Cochrane I do not think that it requires any further refutation. While the ' Letter to Lord Ellenborough ' was passing through the press, the Stock Exchange sub- committee had printed for the use of its members a fmther report dated January 27, 1815. They stated that — Notwithstanding the clearness and weight of evidence adduced at the trial, the public press subsequently teemed with various falsehoods and misrepresentations artfully contrived for the purposes of rescuing some of the convicted parties from the disgrace which they had thus brought upon themselves. They said that Crane was the first person examined by them, and that at his first examination (prior to its having been ascertained that Lord Cochrane resided in Green Street) he said that Du Bourg wore a red coat under his gi'eat coat when he left the coach and entered the house. Crane never gave them any reason to believe that the person he took from the Marsh Gate to Green Street was Lord Cochrane. The sub-committee also said that Crane was not paid higher than the other witnesses in his station LORD COCHRANE' S ESCAPE FROM PRISOX 1G9 in life, and that the whole sum paid to him did not exceed £17, which included some expenses that he had incurred, and the hire of his coach for part of the time he was in attendance. They went on to say that Shilling the post-boy had told them that Du Bourg wore a red coat, without having had any communication with Crane, before it had been ascer- tained that Lord Cochrane resided in Green Street. They also said that none of the reward offered for the apprehension of Du Bourg had been paid to any witness at the trial, but that the^-^vhole of the 250 guineas had been given to a gentleman who, as well as some other gentlemen, had pointed him out to the sub-committee five days frevious to the publication of Lord Cochrane's affidavit of March 11, and that a warrant had actually been obtained against De Berenger. They characterised M'Kae's statements as gross and infamous falsehoods, and concluded by saying that they had never authorised or sanctioned the publication of any of their proceedings except the former and present report. The 11th Earl of Dundonald tells us that during the first period of his imprisonment Lord Cochrane was ' Lifp ^f not treated with more than usual severity. Two rooms in the LoniCoch. King's Bench State Prison were provided for him, in which of ' ' ' course all the expenses of his maintenance devolved upon himself. He was led to understand that if he chose to ask for it, he might have the privilege of ' the rules ' which would have allowed him, on certain conditions, a range of about half-a-mile round the prison. But he did not choose to ask. He was apparently allowed to receive as many visitors as he chose. Sir Francis Burdett and Mr. Cobbett came Committoe to him to talk politics. His uncle, the Hon. Basil Cochrane, loges. EvI- came to see him, and his secretary, Mr. Jackson, says he saw ''•^"'^^•p- •*• him almost daily, having taken lodgings near the prison. But on March 6 he chose to escape ; and on the 20th he was recaptured in the House of Commons after a short struggle. As he would not walk, he was carried out of the House on men's shoulders. For the sake of greater security he was then confined in cochrane's 170 THE GUILT OF LORD COCHRANE IN 1814 Trial for a strong room. He complained most bitterly of his treat- puSed ment by the Marshal of the King's Bench (Mr. Jones) after '•y Hone, recapture. When he was tried at Guildford on August 17, Infra, 1815, for having made his escape, he took the opportunity ^' ' of repeating these charges, but refused to call witnesses to support his statements, though challenged to do so, T and thus gave no opportunity for a refutation of his asser- tions. They would, of course, have been cross-examined, and of cross-examination in any form he had a holy horror ever since he had been cross-examined at the trial of Lord Gambler. CHAPTEE XVI THE NOBLE STOCKJOBBER Early in 1816 De BeVenger published a book entitled ' The Noble Stockjobber,' a book which it is impossible either to ignore or to rely upon. The book is disfigured by a charge against Lord Coch- rane's private character, which has, I believe, a very simple explanation. Lord Cochrane has told us that he was secretly married in 1812, and the Committee for Privileges eventually decided in favour of this marriage. If, however, it is admitted that it is probable, that to avoid observation Lady Cochrane was very simply dressed whenever she came to see him, and that she occasionally took with her to his house in Green Street such of his belongings as he did not require in his prison, the whole charge falls completely to the ground. Still, 1 think it cruel of Lord Cochrane to have exposed his young wife to the sneers of a De Berenger and his fellow-prisoners. With this exception, I look upon the book as probably quite as truthful as the ' Autobiography of a Seaman,' which I admit is not high praise. De Berenger's own account of the affair is not without interest. Much of the book is evidently written as an answer to the attacks on De Berenger contained in Lord Cochrane's ' Letter to Lord Ellenborough.' 'The Noble Stockjobber' is rather heavy reading. 'The Noble De Berenger apologises for his ' repeated encroachments on jobber,' his indulging reader's patience, on the ground that he is p- 1^2. writing in what is to him a foreign language.' He complains bitterly of the treatment he received from his fellow-con- spirators. His confinement in the same prison as Lord 171 172 THE OUILT OF LORD COCHRANE IN 1814 Cochrane and Mr. Butt appears to have been the cause of an occasional scene. Bound up A pamphlet appeared in answer to * The Noble Stock- iLmphiets jobber,' in May 1816, entitled ' De Berenger Detected,' Temple'"""'" Pi'ii^te^f^ by W. Jackson. The object of this pamphlet is to Library. contradict De Berenger's statements about Lord Cochrane, and it publishes a letter said to be ^Yritten by De Berenger to Tahourdin on February 17, 1814, part of which was read in the House of Commons on July 5, 1814. De Berenger denied the existence of this letter. I am inclined to think that De Berenger wrote the letter in question, but at a later date, possibly on Februar}^ 27. At the trial it was shown that Tahourdin dated the letters received by him in a manner wdiich excited much suspicion. Though I do not wish to be understood as relying upon any of De Berenger's unsupported statements, I think that he would scarcely have ventured to make assertions which could have been contradicted by numbers of people in the year 1816. For instance, he says that he met Lord Cochrane repeatedly in the month of January, and gives lists of the guests who were present on some of these occasions. I give a specimen of one of these lists. •The Noble Friday, '21st January — Dined in Portmnn Square with jobbM,' ^^6 Hon. Basil and Mrs. B. Cochrane, Admiral Sir Alexander P- ^^- and Lady Cochrane, the Hon. Cochrane Johnstone and Miss C. Johnstone, Admiral Hope, Miss Hope, Lady Trow- bridge, Colonel Dillon, Colonel George Cochrane, Mr. Tm-ton and Lord Cochrane, and several other gentlemen. He quotes a letter that he received from Lord Cochrane : Dear Sir, — Your papers are very clear, as all writings are which, come from your pen. Such, however, are the circumstances p. 26. in which I am placed, that it is not in my power at present to avail myself of your polite offer. If you will go to America with me, we will talk the subject over on the passage. February llth, 1814. Yours very truly, Baron de Berenger, etc. Cochrane. This letter is referred to as follows at p. 80 in the pamphlet called ' Eeview of the Case of Lord Cochrane, 1830 ' : — DE BERENOERS PLAN 173 Notwithstanding his pretended intimacy with Lord Cochrane all that he was able to produce in his handwriting was one short note, dated February 17th, and that of a perfectly innocent character, declining a proposition from him to accept a share in an oil patent. It is probable that De Berenger had burnt all incriminating correspondence. De Berenger uses this note to prove that Lord Cochrane was well acquainted with his handwriting, and that he would have recognised it when Dewman brought him the note from Green Street. De Berenger says "that on Saturday, February 19, he, 'The Noble. in compliance with another pressing invitation, went to jobber,' Mr. Butt's office, little dreaming that he should go out of ^' ^^' town that evening. He there found Mr. Cochrane Johnstone, Mr. Butt, and Lord Cochrane, and after half an hour's conversation on general subjects, the discourse was directed to the state of the Funds. At length — namely, about two p- 65. o'clock — Mr. Butt informed him that if he could not help him they should all be ruined. He then, for the fii'st time, produced his plan, and gave it to Mr. Johnstone with a private intimation that he was to keep it secret from the others, and he was greatly surprised and offended at his handing it over to Lord Cochrane, as he had not till then the slightest suspicion that either Lord Cochrane or Mr. Butt was aware that he had promised to furnish Mr. Johnstone with a plan of that description. Mr. Johnstone then told him that they were all as one in that business, and at last, after some hesitation, and merely to prevent the ruin of his friends, he did at their joint and urgent request consent to put his plan into immediate execution. De Berenger says that ho calculated the expense of the expedition at about £51, and that he was given £60 — £20 from each of them (Lord Cochrane, Butt, and Cochrane Johnstone). When Mr. Butt was going Lord Cochrane called him back, saying — ' Take care. Butt, how you give instructions to the brokers ; it's late in the day and from that and the prices they may suspect us.' ' Let me 174 THE GUILT OF LORD COCHRANE IN IS 14 alone for that,' was his reply ; ' I'll have quite new faces for these purchases.' — He then mentioned several persons, amongst others Mr. Richardson. However, Mr. Richardson was not the only ' new face ' Mr. Butt employed, for he purchased con- siderable sums through other channels, which the penetration of the wonderful committee never unveiled ; and the profits of these purchases, which can be pointed out, were consequently shared by the three speculators. When Lord Cochrane was about to leave, De Berenger stopped him, saying, ' My plan would be imperfect unless he as a seaman would give me certain information.' That ' The Noble Lord Cochrane' s advice consisted in his strangely urging me jobber,' to drive ' from Dover to Deal, to knock up old Foley, the port P- '^^- admiral ' (his own words), which would cause him to work the telegraph. De Berenger says that he objected to this as unusual conduct in a bearer of despatches. Lord Cochrane however persisted on the ground that it was of incalculable value should the telegraph bring up the news. Eventually he compromised with his lordship, after much difficulty, by most solemnly engaging to contrive that a letter should be forwarded to the port-admhal. At this time he did not know that Wednesday the 23rd was the settling day. p. 72. The conspii-ators wished De Berenger to pretend to arrive at Dover at three or fom* a.m., but he preferred to wake the people out of their first sleep and after the jollity of a Sunday night, and he wished to avoid passing through towns where there were military depots, so as to avoid the risk of being questioned by officers who might force him to betray himself. p. 75 . He states Lord Cochrane also told him to come to his house, but to change the hackney coach on his way ; he then for the first time informed him of his removal from Park Street to Green Street. p. 191. De Berenger says he did not change the coach, because Mr. Barwick followed it so closely, and, as he recognised THE LETTER TO ADMIRAL FOLEY 175 Barwick as a person he had seen before, he was afraid that the recognition might have been mutuaL He states that the letter to Admiral Foley was written ' The Nobio in London by a confidential friend of his and taken down fobber,' to Dover. pp- ^'''-^^ That he bought a scarlet coat with blue cuffs and collar and embroidered gold buttonholes, a pair of dark bottle-green overalls, a star, a silver niedalhon, and a black leather bill-case about ten inches by six, and an inch and a half thick, also a fair-sized portmanteau of yellow leather, a plain grey -military great coat with covered buttons, and a dark brown fur foraging cap with a gold band. He sewed the star on to the scarlet coat. He went to Dover by coach and left the yellow portmanteau with an old blue coat in it and other clothes at the inn at Dover. He says that every mihtary man will confirm his statement that the collar and cuffs must have been blue if they belonged to a British aide-de-camp. He also purchased some napoleons with money of his own. p. 116. He left his letter to Adaniral Foley on the table of the p. iss. inn on pm-pose to tempt the cmiosity of the people of the See^Triai; inn, with the result that two expresses sent from Dover with the good news reached London before him. He also ^points out that, had he really changed his uni- ' The Noble form to that of a sharpshooter, either in the chaise or in the jobber,' liachiey coach, there would have been no occasion for him p- i''^- to go to Lord Cochrane's house for a disguise. Anyone might have seen him dressed in green, without thinking of the messenger in scarlet. Dewman, Lord Cochrane's servant, opened the door pp. las- for him, and he sent him with a note to Lord Cochrane. Shortly after Dewman had left, the maid brought a message from Lord Cochrane's housekeeper asking him to breakfast, which invitation he declined on the ground of being tired and travel-stained. The maid brought him water to wash. After his ablutions were finished he received a more pressing invitation. On arriving in the drawing-room, I began by making apologies, p. 200. on purpose that my excuses for continuing to wear my bulky great coat might be received, unaccompanied by any reason 176 THE GUILT OF LORD COCHRANE IN 1814 for such extraordinary conduct ; for all that could be learnt from me was, that I neither could nor would take it off, though invited so to do, to be ' more comfortable as there was a good fire,' which strange appearance, as well as incoherent address, induced the lady some time after to describe me as being ' deranged.' ' The Noble After repeated and certainly most obliging and considerate stock- ^ entreaties to go to rest after my fatigue, the breakfast being p. 201.' over, the lady quitted the room. I think it probable that this lady was Lady Cochrane, and that the housekeeper Eleanor Barnes who made the following affidavit was another person altogether, and that therefore her affidavit may have been perfectly truthful. That she well remembers being told that an officer came to his lordship's house in Green Street, Grosvenor Square, on Monday, the 21st February last ; and this deponent further saith, that at the time the officer arrived, she was not at home, but that she returned between eleven and twelve o'clock. That seeing a cap in the parlour, she inquired of Mary Turpin whose cap it was, and that the said Mary Turpin replied, that it belonged to an officer who was with his lordship in the drawing-room ; and this deponent further saith, that she took up the cap which was of a dark brown colour, with a gold band and tassel and immediately afterwards went to her room and did not see the officer. That this deponent never saw Captain Berenger to her knowledge. Sworn in Court June 14, 1814. Hansard, xxxviii. 671-9. ' The Noble Stock- jobber,' p. 194. pp. 231-4. The note that De Berenger wrote to Lord Cochrane when in Green Street was unsigned. It stated that it conveyed great surprise at his absence, and requested his undelayed return. That when this note was brought back to him from Cumberland Street, he added to it ' that I neither would or could move until I had seen Lord Cochrane,' that it was these words that caused Lord Cochrane to say ' Then I must return.' He calls attention to the fact that had he wished to change his clothes in the post-chaise, he would have pulled up the front bhnd, to prevent the post- boy seeing him, and not the side blind only. The distance between the Lambeth Eoad and the Marsh Gate was only three or four hundred yards. DE BERENGERS RETURN 177 When Lord Cochrane returned he asked De Berenger, ' How could you be so imprudent as to send me a wafered * The Noble note ? ' which was retorted with ' Had your Lordship attended j^obbcr,- to your promise and stayed at home, this trifling uneasiness to i'- -"^• you, as well as many greater to me would have been spared.' De Berenger points out that no one would have dared p- 213. to send for Lord Cochrane in such a manner, unless he had been certain that the business was of as much importance to Lord Cochrane as to himself, and that otherwise he would have been exceedingly annoyed with any person, at being sent for in this p^-emptory manner. Lord Cochrane took him up to the second floor, helped p. 202. him to pull off his scarlet coat, and gave him the long overcoat that he had himself been wearing, as well as a low crowned hat of a peculiar shape. The writer points out the absurdities of Lord Cochrane's pp. 200-6. affidavit, in which it appeared that Lord Cochrane actually believed that De Berenger would go to Lord Yarmouth and other high officials, unshaven, with undressed hair though wearing powder, dressed in a coat that was a great deal too long for a man of his height, with a broad-brimmed, low-crowned hat, and in dirty boots that had been under a quantity of straw during a journey of seventy-two miles. None but a madman, so accoutred and so dirty, would have gone in such a costume to call on officials of the highest rank. He would have been the laughing-stock of their servants, who would have shut the door in his face, believing him to be either mad or drunk. De Berenger left Green Street in the hackney coach that had brought Lord Cochrane there. He tells us that on leaving Lord Coclirane's he first went to a hatter's, as p- ^^^• he could not face his servants in Lord Cochrane's queer ' Obadiah ' hat, and that he paid off one coach and took another at the hatter's. He says Lord Cochrane had never seen him at any p- 253. time in his military dress as a sharpshooter, and that he dined at Basil Cochrane's in Portman Square on the evening of the fraud, and that Lord Cochrane came in afterwards. At this entertainment the fraud was the principal subject of conversation, as it probably was at every other evening N ^' ^ 178 THE QUILT OF LORD COCHRANE IN 1SI4 party in London on that night. All looked pleased, and Lord Cochrane smiled sweetly at him. 'The Noble De Berenger makes some sarcastic remarks on Lord jobber,' Coclirane's having omitted to mention this second meeting pp. '355-6. [y^ }-^jg affidavit. If the affidavit had been true, Lord Cochrane would have been much surprised at seeing him again so soon, and at finding him properly dressed in his own clothes. I do not myself think that De Berenger would have dared to invent this story of their having met again on the evening of the fraud, because if it had been a falsehood it could easily have been refuted in 1816. Before Mrs. Basil Cochrane's party broke up, Mr. Johnstone asked him to dine next day, ' when the party consisted of Miss Cochrane Johnstone, her father. Lord Cochrane, Mr. Butt and myself. Instead of the cheering and glowing smiles of Monday, all was gloom and pensive distance.' Few were the words at dinner — the room was scarcely to ourselves (the lady having left) p. 259. than I was requested to state the whole of my proceedings. During the adventurous recital all were gay, animated, nay delighted ; but scarcely had it been closed when the former gloom prevailed. In fact, the conspirators were getting anxious, and wished De Berenger to keep out of sight. Various schemes p. 267. for effecting this were discussed. On Thursday morning, February 24, he met Lord Cochrane and Cochrane Johnstone at Donnithorne's, the scene of the alibi. Much of what took place on the 24th was afterwards stated at the trial to have taken place on the 20th. Various plans were again p- ^"4- discussed. Among others, De Berenger says that Lord Cochrane suggested to him that he should say that he was ' employed by Lord Yarmouth in this hoax ; anything about him wdll go down.' In the evening he again went to see Cochrane Johnstone there, who told him that his share was p. 276. to be £1,000, and that he brought him £400 on account in one-pound notes. It was proved at the trial that these one-pound notes had been obtained on the same day and were the produce of a cheque of Lord Cochrane's. p- 281. Having ascertained that burning would cause too 'potverjul a smell, he cut the scarlet coat to 'pieces and tJircw it into the DE BERENGER AND COCHRANE JOHNSTONE 179 Thames. He had already given Lord Cochrane's coat and hat to his servant. On Saturday the 26th, Cochrane Johnstone called on him in his absence, and left a note requesting him to call at Donnithorno's at 9 a.m. on Sunday. When there Mr. Johnstone drew a harrowing picture of his own misery and Lord Cochrane's despair, and implored him to fly, as the Bow Street officers were on his track, and it would be best for him to leave town that night, to start for Leith, and embark there for Holland. He told him that Lord Cochrane threatened to commit sijicide if the fraud was discovered, and he promised that he himself would come and meet him in Amsterdam, and that ample provision should be made for him. Cochrane Johnstone also gave him £90 more in two notes of £50 and £40. On receiving De Berenger's letter from Hull, dated 'The Noble March 1 (the one referred to at the trial, p. 224), the con- j^obS^' spirators were under the impression that De Berenger had p- -^2. embarked for Holland, and Lord Cochrane thought it safe p. 293. "io produce his affidavit. 1 I ought to mention that De Berenger had secret plans p. 02, and for the destruction of ships, as well as Lord Cochrane, ^pp- ^°- '^• His plan consisted of pouring ' constant and adhesive Berenger's ^ supplies of liquid fire ' from a distance of 1,000 yards on to the sails and rigging of a ship-of-war. He says that a soldier could use it at a distance ot 400 yards agamst ammunition wagons. He states that he never divulged his invention to any one. He wanted £33,000 from the Government for this plan. It is not the same as Lord Cochrane's. After De Berenger's sentence had expired his creditors interfered to prevent his release. In his book he gives a synopsis of a second part that he meant to publish at some future period. In this synopsis he declares that an infamous agent offered him heavy bribes to induce his consent to fixing the whole transaction on Lord Yarmouth. I do not think that it ever appeared, at any rate I have failed to find it. In 1835 he appears to have been fairly flourishing, and wrote a book called ' Helps and Hints Iiow to Protect Life and Property ; Eifle and Pistol Shooting, etc' K 2 ^ CHAPTEE XVII LORD COCHRANE's CHARGES AGAINST LORD ELLENBOROUGH IN 1816 On March 5, 1816, Lord Cochrane brought forward thirteen Articles of Charge against Lord EUenborough. As Wilham Jackson claims the credit of having drawn them up, I give an extract from his evidence. Before the Q. Cau you Specify any personal affairs lie consulted you sioner for ^^^^^ ■ Committee A. About the affairs of the fraud, I was concerned in all that, legesri862. Wilting his defence and drawing up his charges against Lord EUenborough. There were fourteen charges I drew up for him ; ^' ' they were ordered to be printed by the House of Commons, but they were expunged afterwards. Q. In short, you did all his literary work for him ? A. All his literary work I did entirely for him. Q. The confidential affairs you spoke of were such as were connected with that literary work ? A. Ye,s of course, I wrote several pamphlets for him. I have thought it best to insert this extract from the secretary's evidence here. I shall afterwards prove that Lord Cochrane's ' Autobiography ' was largely based on information supplied by him. Atiay, Each article of charge was accompanied by a long argu- pp. 242-3. jj^entative statement. The whole document occupies sixty pages and took some hours to read. Mr. Atlay has reprinted the whole of these thirteen charges. Eor the commentary I must refer my readers to Hansard. On March 7, 1816, Lord Cochrane moved for certain letters that had passed between him and the Admiralty. Some of them were produced, but as regards two letters said to have been written on March 8, 1814, Lord Cochrane's 180 % SPEECH OF LORD COCHRANE 181 application is the only evidence I can find as to such letters ever having been written, and I do not accept that as sufficient proof that they ever existed. On March 29 Lord Cochrane moved for leave to bring an additional charge against Lord Ellenborough, which contained accusations against Sir Simon Le Blanc. This fourteenth charge was not allowed to stand, as the manner in which it was made gave Sir Simon no opportunity of refuting it, and it was accordingly withdrawn. Sir Simon Le Blanc died on April 15, 1816. On April 30 Lord J^oclirane moved, and Sir Francis Burdett seconded, the motion that these charges be taken into consideration. Lord Codtrane proposed to examine in support of the first charge all the counsel, one of whom now sat on the bench whence it Lad Hansard, pleased the Almighty to remove two of those who had sanctioned ^fsw ^^^' his unjust sentence to a tribunal whence there was no appeal. They now knew whether he merited the treatment he had received. The jmy and shorthand writers he also proposed to cross-examine, to prove the artificial reasons assigned by the Lord Chief Justice for compelling his counsel to proceed with his defence after the hour of midnight. The Hon. Edward Law, eldest son of the Chief Justice and a future Governor- General of India, rose to reply. He said that — The importance of the question arose not from the nature of the charges on the table, which were far too contemptible to require a laboured refutation but arising from their tendency to vilify the administration of the justice of the country. He did not believe that the noble Lord's object was to destroy the character of the Lord Chief Justice ; if such were his object let him proceed to praise him. But on the present occasion all he asked for was justice, strict justice, and no more. He had always considered that the equal administration of justice to high and low, rich and poor, was one of its noblest attributes. The noble lord had called upon the House to destroy this proud distinction of the country, that there should be a different law to the private individual, and to the member of parliament. 182 THE GUILT OF LORD COCHRANE IN 1814 And in what case was it proposed to subvert the equal adminis- tration of the laws ? It was not in the case of charges brought bv a third party but by a convict against the judge who tried him. It was impossible not to feel that the House would reject them with indignation. He concluded by saying — Was it necessary to call to the recollection of the House that the jury, in finding him guilty, disbelieved him even on oath ; and that he was consequently an incompetent witness in any court of justice ? Upon the whole he left the case entirely in the hands of the House with a perfect conviction that they would place against the motion of the noble Lord their negative of indignation and contempt. I have in my possession the manuscript notes of this speech, which contain some passages which do not appear to have been delivered m the House. Some of them have sufficient interest to justif}' publication. Where is the proof, where the probability of wilful and corrupt partiality in the Judge ? The Judge an admirer of gallant actions, and with jury and public partial to Cochrane, and as gentlemen unwilling to believe the fraud to have been possible. Can House believe judges and jury united in conspiracy to ruin him ? All this preparation has discovered nothing that upon a reference to the trial is not answered immediately. New evidence has been mixed up in pamphlet, and assertions considered as proof. Lord Ellenborough had no knowledge of Lord Cochrane. Zeal for naval service would have made him partial and anxious to acquit. The Judge decides on sentence without considering individuals. Throne the proper fountain of mercy. As a mark of gratitude for past services. The Rigid Hon. George Ponsonhy spoke next. He was the Leader of the Opposition and had voted against Lord Cochrane's expulsion in 1814. He had himself practised at the Irish bar with success, and had once held the office of Lord Chancellor of Ireland. Hv said : HON. GEORGE PONSONBY'S SPEECH 183 That he was unable to see the propriety of that rule of court which refused a new trial, unless all the defendants were present ; but this was the rule acted upon by the whole court ; the blame, if blame there was, could not attach to one ; and the proper way of remedying the grievance was, to alter the law on the subject ; nothing could be more unfounded than to make it. ground of charge. And as regards the adjournment he said that the judge did nothing but what was perfectly lawful, even on the statement of the defendant. Nothing, to his mind, arose from the circum- stance, at all indicating partiality, or injustice. He confessed it was always to be regretted when any adjournment of a trial took place, though in some cases the length of the proceedings might render it unavoidable. But what disadvantage arose to the noble lord from the precise period of the trial at which the proceedings were adjourned ? He confessed he could see none. Nay the very circumstance of the statement of his case being the last thing left on the recollection of the jury, appeared rather advantageous to the noble lord. He had the benefit of the impression, which his counsel endeavoured to raise, being left as the last thing on the minds of the jury ; and next day the evidence in his favour was most likely to operate an additional prepossession in his favour, if it availed anything at all in the estimation of the jury. He protested, he could see no improper purpose, no undue object in the mind of the judge, and if there were none, to what purpose should the House go into a com- mittee ? He had examined all the charges, and he declared he could see no ground for impeachment of the chief -justice, or for taking any step which might imply the slightest doubt of the rectitude of his conduct. He felt it due to the character of the judges to afford them support wherever they maintained the course of uprightness ; and nothing could be more cruel than to bring forward unfounded statements. Tlie Solicitor-General {Sir Samuel Shepherd) said : He should now make one or two observations on the first charge. The Right Hon. gentleman who spoke last, had most truly said, that what the noble judge had done, so far from operating against the prisoner, had turned materially to his advantage ; namely the giving time for the impression that had been made on the minds of the jury to take its due course, with 184 THE GUILT OF LORD COCHRANE IN 1814 respect to the counsel, he would venture to say in a trial of this sort, which depended not on any investigation of nice legal arguments, not on points of abstruse or difficult learning, but on a plain statement of facts he should say as a counsel himself, when the whole evidence was warm from the hearing, ' Let me now state what I have to offer, and don't let me be called on to-morrow morning when the impression now so warmly felt shall have become cold and weakened.' He should have preferred this as a counsel himself at whatever expense of bodily or mental fatigue. It was clear from the whole tone of the articles, they did not come from any conviction of mind on the part of the framer of them, but from a cautious research for points of captious objection. Where was the noble judge alleged to have mistaken the law ? Where was he alleged to have mistaken fact ? Nowhere ! save as to one Alexander Murray, which was now proved to be without foundation. And who was the fairest judge of the construction to be put on facts, a person who was not implicated, whose mind came to the examination unbiased, whose fame and character were at stake on the construction he should form — or the accused himself ? What was it to him (the judge) beyond the event of the trial, what became of De Berenger, of Butt, of Cochrane Johnstone ? — what even of the noble lord himself ? He would call the attention of the House to the character of the noble judge. Never was there an individual at the bar or on the bench less liable to the imputation of corrupt motives. Never was there one more remarkable for independence he would say sturdy independence of character, than the noble and learned lord. For twelve years he had presided on the bench with unsullied honour, displaying a perfect knowledge of the law, evincing as much legal learning as was ever amassed by any individual. And now in the latter part of his life, when he had arrived at the highest dignity to which a man could arrive, by a promotion, well earned at the bar, and doubly well earned on the bench, they were told that in the face of the public, when all around him had an opportunity of detecting him, he had sacrificed all his honours, by acting from corrupt motives for which no reason whatever was assigned. Let the House read the trial, let them look at the evidence, let them consider the summing up and the comments of the I SPEECH OF SIR FRANCIS BURDETT 185 learned judge and they would assuredly come to the conclusion, that instead of pressing the case too hardly he had omitted much that might have been urged against tlie noble lord. There never was a fairer nor a more impartial charge than that delivered by the learned judge, in summing up the case. The learned judge was accused of partiality, misrepresentation and injustice because he did not reason in the same way the noble lord would have done. Sir Francis Burdett was Lord Cochrane's only supporter. He stated in open contradiction to the facts that ' the counsel had distinctly declared their inability from fatigue to enter into the defence at such a late hour of the night.' Then he declared that the 13th charge contained a very serious accusation that ' the Chief Justice had unwaiTantably enforced an opinion that De Berenger appeared before Lord Cochrane in a red coat of which there was no evidence.' I have already pointed out that not only Serjeant Best's admission, but that the evidence fully justified this opinion. Sir Francis said if what the noble lord here stated had been proved in evidence (but he denied that it was) and had he, Sir Fi'ancis, been on the jury, he should have been compelled to return that verdict which the jury had given. He made another important admission. He complained that the Solicitor- General had selected the weakest charge for attack, i.e. the adjournment. I have already shown that late sittings were not uncommon in those days, and so that the charge now thought to be the strongest was considered by Sir Francis to be the weakest. Then he dealt with the new trial question, but carefully omitted all reference to the proceedings on June 20, when Lord Cochrane had been allowed to address the Court without interruption. The Attorney -General {Sir William Gnrrow) was the next to address the House. As regards the adjournment, he said that : The learned judge to whom this conduct had been imputed, had been so well vindicated with respect to his conduct in this 186 THE GUILT OF LORD COCHRANE IN 1814 instance by the right Hon. gentleman opposite (Mr. Ponsonby) little or nothing was left for him on the subject. He said that those who complained of the lateness of the adjournment knew little of the hardships to which the profession were subjected if they thought this would be considered to press very hardly on those whose situation was thus made the subject of commiseration. He himself had been engaged in his professional labours from nine o'clock that morning without having taken the slightest rest or refection, and he should be extremely ashamed if he could not continue his exertions till a later hour of the night than that at which they had arrived. In a case like that of the noble lord the counsel, from finding it hopeless, might be content to adjourn on the plea of their being fatigued, but the result on this occasion had proved that they were not disqualified for the performance of their duties, for, on looking at the defence, it must be admitted that mortal man could not have made more of such materials as had been made of them by the counsel for the noble lord. // what he {Crane) had said were untrue the noble lord might have found means of proving it to he false, hut two years had passed away, and who had dared to indict him for what he had sworn at the trial ? Did the noble lord suffer by such a refusal (of a new trial) ? No ! His case was heard over again by the judges, the notes of the lord chief justice w^ho presided at his trial were read, an opportunity was allowed of comparing them with the shorthand notes taken by others ; and after the most mature deliberation, after re-hearing all the depositions of the witnesses, and any new affidavits that could be brought forward, a full court of judges confirmed the verdict of the jury, and decided that there was no ground for a new trial. — They all supported the direction of the lord chief justice and the finding of the jury. See Hansard. gi^- Fraiicis Burdett, in explanation, denied having attempted to take away the character of Crane. Lord Cochrane then spoke again, and reiterated his charges. The House divided, 89 to 0. Lord Cochrane and Sir Francis Burdett found themselves unsupported, with no one to count. ^ Dr. Kenealy was more fortunate when he brought charges against L.C.J. Cockburn. He and his teller counted a single supporter, Major O'Gorman. CHARGES REJECTED BY HOUSE OF COMMONS, SO TO 187 Nearly two years had elapsed since the trial, more than six weeks had elapsed since the charges themselves had been laid before the House, together, with the sixty columns of comments thereon, and the House of Commons was no longer in that state of ignorance which showed itself in the speeches made in the earlier debates on the trial. Yet, with the exception of his Westminster colleague, not one man out of an assemblage of more than 600 could be found to give his support to Lord Cochrane. The House of Commons in its worst days has never been so corrupt as to be unable to find a^mong its members some few men who would support an honest cause. Ninety-eight years have elapsed since tliis vote was taken, and I think I may safely assert that not one atom of additional evidence in support of these charges has been placed before the public. Assertions have been made by Lord Cochrane and some of his friends. Of additional evidence there is none. In a letter to The Times of January 21, 1896, there is a suggestion made that Lord Cochrane suffered from colour- blindness, and so may have confused the red and green coat. But he lived till 1860, and spent a large portion of his leisure in scientific studies and experiments. I should have thought he would have been one of the last men in the world not to have discovered that he was colour-blind, had be really been so ; but in all the literature devoted to him, I cannot discover a hint on this subject. It should be remembered that during the most important portion of his career at sea, he was generally in company with other ships-of-war, and was in consequence perpetually signalling, or looking out for signals. Could such a physical defect have escaped him ? The writer can have known little of the facts of the trial, or he would have seen how much was left unaccounted for even on that hypothesis. On their side Mr. Ponsonby moved that all the entries in the notes of the House of the proceedings relative to the articles of charge be expunged, and Lord Castlereagh seconded the motion, which was carried nem. con. 188 THE GUILT OF LORD COCHRANE IN ISM Mr. Townsend, a believer in Lord Cochrane's innocence, commented as follows on this debate in 1850 : — Modern The stem integrity and iron virtue of the Chief Justice ?,*f*f , .. „ demanded this public vindication. He scorned the sordid fraud, Trials, ii. 9. . . and was deeply impressed with the importance of making it known to the whole country in what light the law contemplated the magnitude of the crime, what was its true character, and what was the nature of the punishment attached to it. In defiance of all speeches in the House of Commons, and addresses to the electors of Westminster and charges of impeachment, Lord Ellenborough knew his own dignity too well to condescend to utter one syllable of explanation or apology .^ This debate and division was practically a new trial before a tribunal that had had ample opportunity of becoming acquainted with the facts. Still the completeness of the success of Lord Ellenborough's supporters had its disadvantages. The sons and grandsons of Lord Ellen- borough looked upon this decision of the House of Commons as conclusive, and none of them thought it necessary to study the trial. When the subject again came up before the House of Commons in 1877, an assembly whose sole knowledge of the subject appears to have been derived from the Earp- Jackson- Dundonald literature, the sons and grandsons of the Chief Justice were utterly astonished at the tone used in speaking of Lord Ellenborough, and unfortunately at that time none of them knew anything whatever about the details of the trial. They had always looked upon the Dundonald charges as ' too contemptible to require refutation.' ^ A similar course was adopted by the Lord Chief Justice Alverstone when he was attacked on account of his decision in the Alaska boundary case. At the Mansion House dinner, on November 9, 1903, he said : ' I am not come here, and no man could expect me to come here, to justify my judicial conduct by any public speech. (Cheers.) If the judges of England, when they have given their judgment on their own responsibility, thought it necessary afterwards to explain and justify their conduct by public utterances and by public argument a death-blow would be struck at the confidence in judicial decisions.' (Times, November 10, 1903.) CHAPTEE XVIII DAVIDSON S TRIAL I The prosecution of Davidson for perjury took place on July 20, 1S16, in the Court of King's Bench, before Mr. Justice Abbott, afterwards Lord Tenterden. As Lord Cochrane m bis 1847 memorial described Mr. Justice Abbott's conduct as atrocious, and as the 1830 pamphlet gives a most inadequate and misleading account of what took place on that occasion, some further reference to it is necessary. Lord Cochrane's object presumably in instituting the prose- Atlay, cution of Davidson, was to demonstrate that his own prosecutors P- ^^^' had not scrupled to employ false witnesses. He has also made great use of the evidence as to De Berenger being seen in a green coat at Dover. But with regard to the former point, that of the employment of perjury against him, he was certainly unfortunate in the choice of a victim. Even had Davidson been convicted, the part of the case to which his evidence had been adduced was one that exclusively concerned the guilt or innocence of De Berenger, and it had the very prejudicial effect of recalling to the public mind the disgraceful circumstances attending the attempted alibi. Upon the panel for the special jury being called only five Morning persons appeared. The Counsel for the prosecution having been ^nd^rfn* asked if they would pray a tales, namely that the Jury should be July 22, completed by common jurors, Mr. Marryat and Mr. Spankie consulted with Mr. Basil Cochrane who was in Court, whether p. 261. they, on the part of the prosecution, should take that course. After a short interval, they declined praying a tales. This reluctance to proceed without the full complement of special jurors is very remarkable after the abuse heaped on special jurors by Lord Cochrane in the House of Commons, 189 mes. 190 THE GUILT OF LORD COCHRAXE IN 1S14 and it does not show any great desire of the prosecution to proceed with the case. Yet in ' De Berenger Detected ' (p. 12) we are told that Davidson's legal advisers had contrived to delay the trial. The trial could not have been proceeded with, had not Mr. Gurney on the part of the defendant immediately prayed for and obtained the tales. Atiay, It will not be Decessaiy to say much with regard to ^' " Davidson's trial, as Mr. Atlay has dealt with it in detail. But Lord Cochrane, in the pamphlet published under his authority in 1830, spoke very bitterly of the decision of the jury and of the conduct of the Judge. [In his ' Memorial,' published in 1847, he described Abbott's conduct as atro- cious.] Having regard to the fact, as I have said, that Lord Cochrane complained of the conduct of the Judges, and indeed also of the jury, I think it necessary to give some extracts both from the speech of Gurney, counsel for the defence, and from the summing-up of the Judge. Times, Who was the prosecutor ? said Gurney. He was not avowed ; 1816 ^^' ^^ "^^'^^ concealed ; and the present was perhaps the first case Atlay ^^^^ ^^^^ occurred in which the prosecutor skulked behind a screen, p. 263. afraid openly to appear as an accuser. Was the prosecutor Mr. De Berenger or some of his co-defendants, accomplices to his crime and companions in his punishment ? . . . Let him be who he might, the refusal of his Counsel to pray a tales showed no little anxiety even in this last stage to avoid a public trial. Did Lord Cochrane complain that any witness who had proved his connection with this scandalous business had sworn what was untrue ; or did De Berenger deny that he was the Times, main instrument in the transaction ? Did either of them come 1816 ^^' fonvard 'publicly and openly in a Court of Justice to deny any important fact connected with their conviction ? No : and the admitted guilt of De Berenger was the very foundation of the present prosecution ? What, then, was the real purpose of this proceeding ? Was it hy imputing falsehood to a ivitness on a fact Atla unconnected ivitli the real merits of the case to draw into question pp. 263-4. the justice of the former conviction when, upon every point material to the guilt of the parties, not a witness had been indicted ? If De Berenger were not the prosecutor, had Lord Cochrane now become the champion of his former friend ? Did his lordship 31 R. JUSTICE ABBOTTS SUMMING-UP 191 now connect himself tvith the man with whom on the Sth of June he contended he was totally unconcerned ? If Lord Cochrane had been in reality no party to the foul conspiracy, why had he not indicted for 'perjury the witnesses who had sioorn that he was ? The defence on the former trial furnished matter for more than two or three prosecutions, not only for perjury, but for, if possible, the more jnojiigate crime of subornation. . . . This at least was clear, that the defendant had not wilfully forsworn himself, and that the fact on which he had been mistaken was immaterial to the question. After some preliminary observations Mr. Justice Abbott said : It is not necessary to go through the evidence now produced, three witnesses have sworn to the fact, and none have been called in contradiction ; and you have probably made up your minds that when the defendant said that De Berenger was in London on Sunday morning at 11 o'clock, he spoke untruly. But arriving at that conclusion, you will only have proceeded one step towards conviction, because, as I have already stated, no man can be found guilty of wilful and corrupt perjury on the mere proof that the matter to which he deposed was untrue ; you must be satisfied that the untruth was uttered as a deliberate falsehood — as the act of a wilfully corrupt man who had the criminal intention charged against him. . . . If, therefore, you are of opinion that this untruth did not proceed from a wilful and corrupt mind to cause De Berenger and the others to be conyicted ; but that it originated in some inadvertence or confusion of one Sunday with another, the defendant will be entitled to your verdict. . . . The c[uestion, therefore, you have to ask yourselves, supposing that you are satisfied that the defendant swore untruly, is whether he swore corruptly, whether it was the act of a wilful and corrupt mind of a man desirous to cause the defendants to be convicted against the due course of law and justice ; and, if you are of that opinion, you will find him guilty ; if rather, on the con- trary, you believe that he so swore from inadvertence or con- fusion in his mind, then the defendant will be entitled to your acquittal. The jmy immediately delivered in their verdict — Not Guilty. Atlav, p. 264. Mr. Justice Abbott's summing- up. Times, July 22, 1816. Atlay, p. 264. 265. p. 265. 192 THE GUILT OF LORD COCHRANE IN 1814 This trial was the heaviest blow that had fallen on Lord Cochrane since his conviction for fraud on the Stock Exchange. It showed that he had no case, that he dared not appear in court as the prosecutor of Davidson, though years afterwards, when the case was forgotten, he claimed to have prosecuted him. And why had he not dared to prosecute Crane ? Why had he not brought his four servants and seven affidavit makers into the witness box, and also asked permission to enter it himself ? CHAPTER XIX COCHRANE S TRIAL FOR ESCAPE On July 29, 1816, Lord Cochrane attended a public meeting ' Life of at the ' London Tavern ' held under the auspices of the donaid; i. Association for the Relief of the Manufacturing and Labour- ^'^^ ing Poor. The Duke of York was in the chair, supported by the Dukes of Kent and Cambridge, the Archbishop of Canterbury, Duke of Rutland, and Mr. Wilberforce : they all addressed the assemblage. Lord Cochrane, however, suc- ceeded in breaking up the meeting by trying to introduce a quantity of irrelevant political matter. His eldest son tells us ' That his conduct on this occasion ibid. was extravagant and even factious, he afterwards heartily regretted.' He goes on to say, he was much thanked for his proceedings. As the previous punishment however had not been enough to nth Earl's silence him, the Government determined to revive the old charge Lord as a further act of vengeance. At the special instigation of Cochrane,' Lord Ellenborough, as it was averred, the prosecution had been renewed in May 1816, almost immediately after the rejection by the House of Commons of Lord Cochrane's charge against the vindictive and unprincipled judge. Now the eleventh Earl of Dundonald published this in 1869. He had already asked the Government for a money compensation, in atonement for his father's alleged wrongs, and by this time he saw clearly that calumnious attacks on Lord Ellenborough might yet have a cash value. I shall deal with the want of principle by which his conduct was animated, when I come to his one volume edition of the ' Autobiography of a Seaman,' In it ho 193 o —/ 194 THE GUILT OF LORD COCHRANE IN 1S14 republished whole pages of what he had, two years previously, repudiated in a letter to The Times. 'William William Jackson, however, tells us that the trial had Evidence,' been put off owing to a flaw having been found in the indict- P- ^*- ment. From the manner in which this part of the evidence is given, and from the context, I am inclined to accept it as being more likely to be in accordance with the actual facts than the unsupported statement of the eleventh Earl. 'LordCoch- The trial came on in August 1816, at Guildford. Mr. forE^scape' Marryat prosecuted, and Lord Cochrane chose to defend t^nT'^^9*' hii^^self in person. His argument was that as he was illegally et .sf/?., imprisoned he had committed no illegality in escaping. Au2iist 19! He read from a written S'peecli, and dwelt on the hardships he ^^^'^' had suffered in prison after his escape. It must be noticed that all Lord Cochrane's important speeches appear to have ■^*'|J^ been read. He also produced medical certificates, gave way to his emotions, and by his consummate acting pro- duced a considerable effect on the minds of the jury. Times, Ue stated that he appeared himself, because when he 1816. ' had the benefit of counsel he was always unsuccessful. Hone, p. 9. On a former occasion his instructions had been disobeyed, from what motive he could not discover, for it could not for a moment be supposed that an additional fee of fifty guineas for doing nothing could have produced any effect on the minds of the gentlemen at the Bar. His counsel had thought proper to unite his defence with that of the other defendants on the record, and had thereby acted in direct opposition to his wishes. He had also to remark that the counsel who appeared against him on that occasion had actually received retaining fees from him, had attended consultations on his case, and yet to his astonishment appeared in the list against him. Here Mr. Justice Burroughs interposed : ' Such imputations are extremely improper,' and Gurney said : p*2^g My Lord, they are not true. I was never retained by the noble lord in the case to which he alludes. I was indeed con- sulted on the part of the noble lord respecting a prosecution for " ' libel, and I \^Tote my opinion on that subject. Three weeks after LOBD COCHRANE BRINGS NO WITNESSES 195 I was offered a retaining fee in the prosecution against the noble lord, but I, of course, refused to accept it, having been already engaged against him, and it was not for six months afterwards that I heard a doubt suggested of the propriety of my conduct. At the conclusion of Lord Cochrane's address IMr. IMarrj^at expressed a hope that the noble lord would call some evidence, ' after the extraordinary speech he had made,' so as to give the counsel for the frosecution an opportunity of ' Trial for replying to attacks which must otherwise go unanswered,' p^^^' attacks which referred not only to Gurney's conduct, but to the alleged ill-treatn;ient in prison after the escape and recapture. Lord Cochrane did 7iot comply with this request. Had he done so, his witnesses would have been cross- examined, and Lord Cochrane had had a holy horror of cross-examination ever since he had been a witness in the Gambier trial. On July 3, 1815, Lord Cochrane wrote the following words on the £1,000 note with which he paid his fine : — My health having suffered by long and close confinement and my oppressors being resolved to deprive me of my property or life, I submit to robbery to protect myself from murder, in the hope that I shall bring the delinquents to justice. The Governors of the Bank of England and others, who take the responsibility of exhibiting this note, ought, injustice to those whom Lord Cochrane accused of ill-treating him, to place near it a notice pointing out that at his trial for escap- ing from prison, in August 1816, he made these charges in Court, and that in summing up Mr. Justice Burroughs said : ' The nohle Lord had detailed charges against tlie i^id.. Marshal of the King's Bench, which as they could not he ^' answered, it was contrary to the principles of honour and of justice to have made.''] The reason why they coidd not he answered was because he refused to call witnesses to support them. Mr. Marryat, counsel for prosecution, had complained that he had thus avoided giving the prosecution an opportunity of aiiswering them. .,, Atlay, In summing up Mr. Justice Burroughs said that he had p- 275. 02 Jr p. 276. 196 THE QUILT OF LORD COCHRANE IN 1814 not been able to discover a single sentence of the noble lord's speech which directly or indirectly applied to the issue which they were called upon to try. The noble lord had detailed charges against the Marshal of the King's Bench which, even if well founded, had nothing in the world to do with the conduct imputed to his lordship ; but which, as they could not be answered, it was inconsistent with the principles of justice and honour to have made. Atiay, The jury returned the verdict : ' We are of opinion that Lord Cochrane is guilty of escaping from prison, but we recommend him to mercy because we think his subsequent punishment fully adequate to the offence of which he was guilty.' Judgment was moved for in November, and Lord Cochrane was sentenced to pay a fine of £100. This he refused to do, and he was once more taken into custody. Lord Cochrane tells us that his constituents raised the money and he was in consequence released. At that time the borough of Westminster extended from Temple Bar to Kensington ; from Oxford Street to the Thames. Such a constituency, although principally com- posed of the poor and illiterate, contained large numbers of wealthy men, and it was by no means a difficult matter for them to raise a sum of £100 for the purpose of releasing Lord Cochrane. There were many individual constituents who might have paid the whole of it without inconvenience. The story of the 2,640,000 subscriptions of a penny each, actually quoted in 1877 by Sir Kobert Anstruther in the House of Commons, is one of the most extraordinary of the Dundonald fairy tales. I shall describe its origin and growth in a later chapter. CHAPTER XX THE TRIALS OF MR. R. G. BUTT I HAVE now to deal with^another trial which Lord Cochrane and his successors have thought it unwise to mention, or even to allude to in any of their numerous writings. Mr. R. G. Butt, at the termination of his twelve months' detention, had taken upon himself to walk out of prison, leaving his fine of £1,000 unpaid. He was soon re-arrested, and on payment of his fine he was released. Then he went on a wild-goose chase to the West Indies after Cochrane Johnstone, against whom he asserted he had money claims. Now both the Master of the Crown Office and Lord Ellenborough had accounts at Messrs. Gosling's bank, and in consequence of this Mr. Butt appears to have thought that his fine had gone into the pocket of the latter. In March 1817 Mr. Butt went so far as to post handbills all over Westminster, in the neighbourhood of the Law Courts, accusing Lord Ellenborough of putting the King's fine into his own pocket instead of the public treasury. The Government in consequence resolved to prosecute Mr. Butt for libel on Lord Ellenborough, and also for another libel against Lord Castlereagh, in which he reiterated the charge that he had been ' unjustly convicted by Lord Ellenborough to make money of him.' The trial took place before Mr. Justice Abbott (afterwards Lord Chief Justice Tenterden) on May 24, 1817. ]\Ir. Butt appeared for himself, and succeeded in proving even more satisfactorily than the prosecution how utterly destitute of foundation these libels were. He called an 'Trials of extraordinary number of witnesses, some of whom appeared Gathome 197 i ^ 198 THE GUILT OF LORD COCHRANE IN ISM Butt; and some did not. Among others were Lord Cochrane, puMi^hed"^ Sir Francis Burdett, Lord Sidmouth, Lord Folkestone, by R. G. Lord Torrington, Lord Erskine, Earl Grey, Duke of Bedford, Mr. Swan, M.P., Hon. Mr. Bennett, M.P., Mr. Brougham, Mr. Mellish (a bank director), Mr, Yansittart (Chancellor of the Exchequer), Lord Holland, Mr. Francis Gosling, and Mr. Wood (the Lord Mayor). On Lord Cochrane's absence Mr. Butt commented most strongly : p. 11. Call Lord Cochrane. — He does not answer. Mr. Butt. — He was not subpoenaed — he told me it was not necessary, as he should be in Westminster Hall by nine o'clock. And at the second trial — ■ p. 84. Call Lord Cochrane. — He does not answer. Mr. Butt. — -I trusted to his honour ; he assured me he would be here by nine o'clock and he has not kept his word. Some of the newspapers had said that Mr. Butt was mad, and in his speech the Attorney-General remarked : p. 61. If the defendant is mad, his madness was as methodical in the means of obtaining his detestable purpose, as if he had enjoyed the most perfect reason ; he has been as deliberate in his pro- ceedings as he has been persevering in procuring its accomplish- ment. Let him not therefore suppose, by his extraordinary conduct, that he shall go quit on this ground ; he is now at lensth on the floor of the Court to answer for his wicked machina- tions, against an exalted individual whom the poisoned breath of grovelling calumny could never reach. Whether the defendant was or was not deranged in his intellects, his conduct this day has shewn that he is fully aware of the nature of his acts, and their consequences ; and Gentlemen, I trust that you will do your duty and find him guilty of the offence of which he is charged. Mr. Justice Abbott concluded his summing-up by saying : p. 68. Absurdity cannot be a justification or a mitigation of illegal acts ; but that was not a defence at all attempted to be set up. You have attended to his examination, and he certainly appears throughout to have conducted himself like a person of acute MR. JUSTICE BAY LEY'S REMARKS 199 understanding. The case is certainly different ; where a person is so wholly bereft of reason as not to know right from wrong — as not to be conscions of the nature or the effects of the act he is doing, then he is not amenable, but here there is no such im- becility or ignorance — the endeavours of the defendants to avoid the technical charge of publishing the libel shews that he knew he was about to be guilty of a crime, and it is this, unquestionably, that renders him amenable to the law. If the vindictive movements in his breast break out into breaches of the law, he must be liable to the punishment inflicted by the law. The great difl&culty therefore with me is, what question I am to leave t^your decision. The libel is proved, and indeed admitted ; and an attempt has been made to establish its truth and has failed ; and there is no doubt but that the efltect of that libel is to cover with public disgrace the noble lord accused in it, and to bring the administration of justice into hatred and contempt. If you consider the defendant incapable of distin- guishing right from wrong, then you must acquit him. The jury, after a few moments' deliberation, retmiied a verdict of Guilty. He was also found cuiltv on the second charge. On ' Mr Butt ■"^ " Trial June 23, 1817, he was brought up for judgment before Mr. p. 89. Justice Abbott, Mv. Justice Bayley,and Mr. Justice Holroyd. The evidence was read through. Butt put in a pile of letters and affidavits, and addressed the Judges at length, after which the Judges conferred together on the Bench, p. r-'s. and Mr. Justice Bayley passed a sentence of nine months' imprisonment for the first libel and six months for the second. In referring to the sentence passed on Mr. Butt in 1814 Mr. Justice Bayley said : That was not the sentence of Lord Ellenborough, unconnected with the other judges of the Court, but on this occasion, as on all other occasions of sentence, each judge has a voice with all P- ^25. the rest ; and I will say this, because I know it, that I know of no instance where the judges have been overborne by the opinion of any other judge. I cannot help feeling some pity for Mr. Butt. At any rate, he was the only one of the Chief Justice's libellers who met with his deserts. I have no further information June 1817. p. 132. 200 THE GUILT OF LORD COCHRANEJIN 1814 about Mr. Butt except that the following prudent entry was found in a memorandum book of Mr. William Jackson's dated May 19, 1862. ' Mean to burn my letters of 1826 See Evi- and 1828 to Mrs. J., also poor Mr. Butt's letters of 1830 deace.p.33. ^^^^ jggj i * In all probability Mr. Butt was consulted about the 1830 pamphlet. PAET III THE LAST OF THE BUCCANEERS 'A, CHAPTEK I CHILI In 1817 Lord Cochrane's pecuniary circumstances reached a crisis. The large sums he had made in prize-money had been dissipated, the debt connected with the Honiton election was not by any means the only one that gave him ■ Remarks trouble, though his trial appears to have cost him less ""^^^J**^ than one would have anticipated, for he himself only esti- 1847,' mated its expenses at £5,000, including his fine. p^si^ At this time nearly all the Spanish colonies were in revolt. The Chilians had started an infant navy, and had already scored some successes against the Spaniards in the Pacific. A Foreign Enhstment Act had no terrors for • LadyDun- Lord Cochrane, who had no commission to lose. He gladly ^°'^^^ll IT accepted the offer of ' £5,000 a year and other advant- j>iiy 24,'__ ages,' with the rank of Admiral and the command of the > p- ' ■ Chihan fleet. He sailed for Valparaiso in August 1818. His evil genius, Wilham Jackson, followed him in the MViiiiam Bising Sun, which was, I believe, the first steamer to cross ^(!|jJ'°"J|'. the Atlantic. She was not, however, ready to sail until 1821, pp. 13-14. when most, if not all, of the fighting on the Pacific Coast was over. The Chihans had already secured the command of the gIS""^ sea on their own coast. The Province of Peru was, however, ^i>['':'-." still in the hands of the Spaniards; there were Spanish in 1829. ^ i. 191-204. 201 ^-7 202 THE GUILT OF LORD COCHRANE IN 1814 garrisons to the south at Valdivia, and in the island of Chiloe, which served as harbours for Spanish ships. On November 7 the Chihan Admiral Blanco Encelada returned to Valparaiso after a most successful cruise. He had captured a large Spanish frigate, the Maria Isabel, and some vessels that were in her convoy. On the 28th Lord Cochrane arrived and was given the command of the Chilian fleet. The history of that command is related in a book called ' Narrative of Services in Chili and Peru,' published by Lord Dundonald in 1859, for the purpose of supporting his pecuniary claims on those countries. In it he attacks most of the persons with whom he came in contact during the three years that he was on the south-east coast of America, more especially General San Martin, and Jose Ignatio Zenteno, who was at tnat time Minister of Marine in Chili. This book appears to have been translated into Spanish. In 1861 Ignatio Zenteno, son of the former Minister of Zenteno's Marine, published a pamphlet entitled ' Eefutacion de las cioa.' Memorias de Lord Cochrane,' dedicated to the Chilian Vice- Admiral Blanco Encelada. Ignatio Zenteno disproves a great many of the statements contained in Lord Dundonald's book, by publishing con- temporary documents, ' documentos justicativos.' He, how- ever, gives full credit to Lord Cochrane for his services in capturing the forts of Valdivia and for cutting out the frigate Esmeralda. p. 4. At p. 4 Zenteno says that Lord Cochrane would never have written in the tone that he did had he recollected that Chili possessed archives, which were the monuments of his avarice, and of the honourable conduct of those whom he called his enemies. At p. 5 he says that in Lord Cochrane's account of his relations with the Government of Chili, there is not a single page that does not contain a calumny, an involuntary error, or ' una necedad.' g At p. 6 he says that Guise and Spry did not calumniate Lord Cochrane, but that they were the only foreigners who did not take part in his plots. (' Estrangeros unicos que no entraban en los complots del jefo de la escuadra.') Chili SAN MARTIN'S ' ACUSACWNES' 203 was at that time governed by a senate consisting of live members, which was called the supremacy {'La, Suprematia'). Zenteno publishes despatches to the senate dated August 14, Zenteno's 1819, and December 1, 1818, signed by his father and cion,''p.' by President O'Higgins, dealing with the question of Lord Cochrane's share of prize-money. It mentions that of the thousand and odd seamen belonging to the squadron only about one hundred English had applied to be entitled to a ibid. larger share of prize-money. There is also in existence a pamphlet of eighteen pages, dated March 11, 182^, printed at Lima in 1823, containing San Martin's ' Acusaciones contra Lord Cochrane.' The latter rephed by a ' Vindicacion ' of sixty-eight pages, dated November 11. 1822, which was also printed at Lima in 1823. It is the more interesting of the two, in consequence of the number of admissions that are made in it. In 1825 Mr. W. B. Stevenson wrote a book, ' Twenty Years in South pp. 37-4i America.' He had been Lord Cochrane's secretary during the latter portion of his Chilian career, and takes his side. Among other documents, Zenteno publishes a letter written by his father in reply to Lord Cochrane's complaints dated May 4, 1820. In it he tells Lord Cochrane that the Maria Isabel and other prizes taken previous to Lord Cochrane's arrival had all been properly inventoried and the proceeds had been satisfactorily divided. But in reference to the prizes Geresana, Aquila, Vegona, Feruana, and Potrillo, which had been captured by Lord Cochrane's squadron, only a superficial notice had been sent to the Government of their capture. No inventory of these vessels or of their cargoes had been sent. This he describes as an offence to the supreme authority (' un agravio de la autoridad suprema '). He also complams that Lord Coch- rane had kept in the hands of his agent half of the money p. 38. captured on the coast of Peru, and had paid the other half to the squadron. Lord Cochrane had sent in no proper account of the silver plate that had been captured. It was the Government that had been defrauded by his lordship, and not the takers of the prizes. ' De la plata de pina tomada tambicn en, esa epoca, aun no so ha dado cuenta 204 THE GUILT OF LORD COCHRANE IN 1814 justificada al Gobierno. I aquitiene U.S. que quien verda- Zenteno, deraineiite se halla defraudado en su autoridad intereses es p. 39. la supremacia i no los apresadores.' Zenteno goes on to say that the Government could not be responsible to the squadron for its share of prize-money pp. 37-40. until proper inventories and accounts had been received. ' El gobierno no puede ni debe por motivo alcuno salir p. 42. responsable a la escuadra de la parte de presa que reclamen o puedan reclamar de las que se hayan hecho, i de que no se ha dado razon circunstanciada a S.E. a menos que no se le presenten cuentas legalizadas con los inventarios,' &c. p- 39. Li the same letter Zenteno says that the foreign seamen, numbering but 170, were the only men who were loud in their complaints about the quality and the quantity of the provisions, and that if there was legitimate cause of complaint, it was due to neglect of duty on the part of the pursers and of other officials belonging to the squadron, who had been given repeated orders to examine the pro- p. 40. visions when being embarked. As regards the rockets that had failed to act, their manufacture had been left entirely in the hands of the mechanics, who had come to Chili for p. 40. the purpose of making them. The Government ha d no responsibility whatever with the rockets, except that of finding the enormous sums of money that they had cost. It is impossible to read Zenteno's letters without recog- nising in him an able statesman who was surrounded on all sides by men who were very difficult to deal with. His policy was to oust the Spaniards completely from Peru, and not merely to plunder its coasts. In this he was com- pletely successful before he left office. The fleet appears at this time to have been manned by about 1,000 Chilians, and about 170 English officers and seamen. Neither nationality could afford to dispense with the other. Lord Cochrane made three unsuccessful attacks on Callao. He at first attempted a surprise, but failed. On March 22, 1819, he sent in an explosion vessel, which was sunk by the enemy's guns. On October 2 he tried a rocket attack, which also failed. The rockets burnt Colonel ^ LORD COCHEA NE'S ROCKETS AND EXPLOSION VESSELS 205 Hinde and thirteen of his men severely, but did no harm to the enemy. Lord Cochrane and the ]\Iinister Zentono are in flat contradiction as to the causes of this failure. On October 5 another explosion vessel was sent in, commanded by Lieutenant Margell. The Spaniards fired hot shot, the fuse was lit, and the vessel abandoned. Her explosion did no harm. It is strange to note what a great reputation Lord Cochrane made for himself in connection with explosion vessels. It is one of the curiosities of history. None of his explosion vessels >ever appear to have broken the skin of an enemy, or to have damaged any side but his own. At Aix Roads his explosion vessels caused a panic, but the only casualties actually caused by them occurred on board Seo fitpra, p. 26. the Caesar's fireship. While on the Peruvian coast he seized 70,000 dollars on land at Patavilca, took 60,000 dollars out of a French vessel at Guambucho, and captured the Aquila and Vigonia. Reyes' He also landed at Huacho, Pisco, and Paita. At the latter |^'**°'">'- place some of his men got out of hand and sacked churches cion, p. 6^. and private houses during the few hours that they were on shore. Lord Cochrane tried to make amends for this bv giving the priests a thousand dollars, • and by punishing the men ; but it did harm to the Chihan cause. He also made other captures both on land and at sea. In the meantime the Spaniards had sent a squadron from Cadiz, consisting of two sail-of -the-line and a frigate, . Narrativ. the Prueha, of 50 guns. One line-of- battle ship was found of^e"- vices to be unseaworthy, and went no farther than the Equator ; the other would have done better for herself had she also returned, for she foundered off Cape Horn. The Prueha, however, reached Peru in safety. To round Capo Horn i. so. is always a severe test for a sailing vessel. If she has a weak spot, Cape Horn will probably find it out. Lord Cochrane determined to surprise the forts of Valdivia, a town well to the south of Valparaiso. On his way there he captured the brig Potrillo with 20,000 dollars on board. With 250 men under the command of Major Beauchef, 206 THE GUILT OF LORD COCHRANE IN 1814 •Memoirs who was a French officer, and whom he had borrowed from Miikr"'''^*^ General Frehe at Concepcion, and with some marines mider Major Miller, he succeeded in his object. The enemy evacuated the town, and a provisional government was established. He then made an attempt on the island of Chiloe, but was repulsed with heavy loss. In all these operations he was well seconded by Major Miller, who was repeatedly wounded. During all the above-mentioned operations he had the advantage of excellent information, as the majority of the population had no love for the Spaniards. On February 27 Lord Cochrane retmiied to Valparaiso, and found the inhabitants of that place delighted at the un- ' Narrative expected news of the capture of Valdivia. In ' Narrative of of Services, ^ -, X c • i. 53. Services he says that Zenteno was furious at this capture, and had said that he deserved to ' lose his head for daring to attack such a place without instructions.' I cannot find Ibid. any evidence in support of this statement, and Zenteno's letter of congratulation of February 22, 1820, makes it appear almost impossible that he could have said anything Zenteno, of the sort. This letter is couched in terms of the highest pp. 24, 40. praise, and assures Lord Cochrane of the permanent gratitude of the Chilians. In the same letter of May 4, 1820, and to which I have previously referred, he quotes article 9 of the instructions given to Lord Cochrane, which gave him full liberty to act in accordance with the spirit of his in- structions in case of unexpected occm-rences, thus showing that Lord Cochrane had not disobeyed instructions by attacking Valdivia. If, for instance. Lord Cochrane had learnt that the garrison of Valdivia was weak and disaffected, such unexpected news would have justified an attempt at surprise. p. 26. Qjj March 22 the President O'Higgins and Zenteno wrote to the senate requesting them to grant him one of the estates that had been recently confiscated as a reward for the capture of Valdivia. This was done, and it was not the fault of either of these statesmen if that estate was confiscated some years later. That was the act of another government in which they had no share, and took place teno. LORD COCIIRANKS QUARREL WITH ZEXTEXO 207 after Lortl Cochrane had mixed himself up with the internal poUtics of the country. The chief cause of quarrel between Lord Cochrane and zcnte Zenteno was very diil'erent. For some time the Chilians ^" *^ *' "'''• had been desirous of bringing the war to an end by sending an army to Peru whose presence would encourage the insurrectionary movement in the interior, capture Lima, and drive the Spaniards out of the country altogether. If this could be done, Peru would no longer be available as a base of operations against Chili, and Spanish ships would no longer be able to interfere with Chilian commerce. The Chilians wished to emj^loy their fleet in convoying their transports, and thought it bad pohcy to make use of it merely for the purpose of harrying and plundering the unfortunate inhabitants of the coast. Lord Cochrane's own views are shown in a letter dated p- 52. July 31, 1819, in which he tells the Government that if they cannot afford to reward the squadron for their services, at the same rate as in England and in other countries, 800 soldiers should be added to it, and that with this assistance it would be able to levy contributions on the real enemies of America in Peru, with the triple object of benefiting the Government of Chili by paying and rewarding the men employed in the sea service of the State, refitting the squadron, and then using it for other purposes. Esta fuerza con el auxilio de la escuadra, deberia emplearse en exigir contribuciones de los verdaderos enemigos de la America en el Peru ; con el triple objecto de benficiar al Gobierno de Chile, pagar i premiar a los individuos empleados en el servicio maritimo del Estado i rehabilitar la escuadra para otros destines despues. The younger Zenteno describes this scheme as nothing p. oi. but piracy under the shelter of the Chilian flag. ' Una pirateria al abrigo del papellon Chileno.' Had this scheme been carried out, the Peruvians would have hated the Chihans far more than the Spaniards. There had already ,,„ 53.4. been far too much of this landing, sacking, plundering, and re-embarking. 208 THE GUILT OF LORD COCHRANE IN 1814 Zenteno, p. 57. p. 61. p. 62. The Chilians raised an army of 4,000 men. Lord Cochrane on April 13, 1820, asked for the command of all the land and sea forces of Chili, and to have the fate of Peru and of all South America placed in his hands. * Con tono altanero quiso imponermos el deber de confiar en sus solas manos la suerte del Peru, i talvez la de todo Sud America.' Zenteno insisted that Lord Cochrane should command the fleet only, and that he should take his orders from San Martin. The name of the latter was known all over South America. He had crossed the Andes from Buenos Ayres, had defeated the Spaniards at Chacabuco, and in conjunction with O'Higgins had freed Chili from the Spanish yoke. The intended expedition was more political than military, and resembled that of Wilham III more than that of William the Conqueror. Lord Cochrane's name was unknown in the interior. In Valdivia he might perhaps be known as a liberator, but in Peru he was only known as a plunderer, and by his nickname ' El Diablo.' Zenteno on April 23, 1820, plainly told Lord Cochrane that it would not be difficult to find his successor, referring to an Englishman named Guise, who had already done good service for the Chilians. Guise and Spry, according to the younger Zenteno, were the only foreign officers in the squadron who had been loyal to Chili in disputes wdth Lord Cochrane. In consequence of this Lord Cochrane tried to drive them out of the Chilian service. Miher writes that Miller's ^ the squadton was divided and agitated by the conflicting p. 273. ' parties of Cochrane and Guise. As these disputes do not, it would appear, reflect credit upon either of the parties the subject will pass without further remarks. Guise became an admiral in the Chilian navy after Lord Cochrane left that coast. . Narrative There Were also difficulties about payment of wages. ofServices,' Lord Cochrane says that they were paid up to July 16, but that no prize-money was paid. I think that it is clear that some of it at any rate had been previously paid. Though Lord Cochrane threatened repeatedly to resign, CUTTING OUT OF ESMERALDA 200 Zenteno at length succeeded in getting hini to submit ; and, as Garcia Eej-es puts it, Zenteno at length succeeded, and the proud seaman, champing the bit of obedience, marched under his rival's orders. ' I ami consiguio al fin que el orgulloso marino, tascando Zontcno, el freno de la obediencia, marchase a las ordenes de su rival.' ''' '''" The squadron sailed on August 21. It consisted of p- 68. twenty-four sail, sixteen of which were transports. They took with them arms and stores for an army of 15,000 men. San ]\Iartin landed his arm}'' at Pisco, but remained comparatively inactive. On October 28 he re-embarked and proceeded to Ancoh, while Lord Cochrane and three ships kept watch on the Spanish squadron in Callao. Finding things rather dull, he decided to cut out the frigate Esmeralda. In my opinion it was the neatest thing that he ever did, and it was one of the chief causes of his restoration to the British navy in 1832. During the revo- lutionary and Napoleonic wars, cutting out brigs and schooners had been considered part of the ordinary duties of the British navy, and such small craft were generally left to the first lieutenant. Besides carrying much larger crews, frigates were much higher out of water than flush- decked vessels. In consequence of this, it was more difficult to get on board of them. During the wars that took place between the years 1792 and 1814, I only know of one case in which a fully armed, fully equipped, fully manned, real live frigate was cut out by boats. In 1797 Captain Hamilton of the Surprise James's ' Naval cut out the frigate Hcrmionc from under the 200 guns of History,' Puerto Cabello. The Surjjrise had a crew of 197 men, and '("^hai^^'j^r'a of these 108 men in six boats took part in the attack. But Edition, as two boats with 43 men stopped behind to fight some gunboats, only 65 men took part in the actual boarding. Captain Hamilton led the boarders himself, as he felt that such an unusual enterprise could not be delegated to a junior. The American frigate Macedonian ond the British sloop Hyperion were at anchor in the harl^our of Callao. In case of an attack, it had been agreed that they were to hoist „ 210 THE QUILT OF LORD COCHRANE IN 1814 ' Twenty years in South America,' Stevenson. iii. 293. ' Narrative of kServices,' i. 286. i. 83 et acq. ' Twenty Years in South America,' iii. 2!)8. lights in a pre-arranged position so that they might not be fired on by the forts. Lord Cochrane had learnt from the American frigate what these lights were to be. At sundown on November 5, two of his three ships were pretend- ing to chase some distant vessels. But the boats of the Lautaro and Independencia were alongside the O'Higgins on the off-shore side, where they could not be seen by the enemy. Lord Cochrane led the attacking party, which consisted of 240 men in 14 boats. On board the Esmeralda two sentries appear to have been awake, the rest of the ship's company were asleep. Lord Cochrane shot one sentry, the other knocked him back into his boat. But by this time the British and the Chilians were swarming all over the ship. Guise, who had boarded on the other side, met Lord Cochrane on the quarter-deck. Lord Cochrane had been badly hurt in falling back into the boat, and had received a wound in the thigh. Once in full possession of the ship, the boarders got out of hand. The Chilians plundered the cabins, the British broke into the spirit room. The Spaniards opened lire from the batteries, and Guise, recognising that he would be unable to get the men to man the boats again, cut the cables and took the ship out of harbour. This was a great disappointment to Lord Cochrane, who had hoped to capture some more vessels, including a treasure ship which was said to have a million dollars on board. His original intention had been to capture the Esmeralda first, as she might have dismasted or sunk his other prizes and sunk his boats with her guns, had she not been disposed of previously. The Spaniards believed that the Macedonian had helped the Chilians in their attack on the Esmeralda. Their indignation took a practical form. They massacred two of the officers of the Macedonian and fourteen of her men who landed shortly afterwards in the market boat to buy provisions. The capture of the Esmercdda was a great victory for the Chilians. When a man-of-war captures another by means of her guns, both ships are generally in want of a thorough refit at a dockyard. But when a vessel is captured t^ MONEY QUARRELS ^WITH SAN MARTIN 211 by boarding, there are only a few bullet marks and scratches on her paint-work to be seen. If she can be manned by her captors, she counts twice over, just as a ratting member of Parliament counts two on a division. The rest of the operations are comparatively uninterest- ing. The insurrection gained ground in every direction. * Nnrrativo On July 6, 1821, the Viceroy abandoned Lima, and on ?^'^.^^^'''=«'«'' August 3 San Martin proclaimed himself Protector of ' Twenty Peru. On the 4th a stormy interview took place between l^^l^ '" him and Lord Cochrane. At the close of it Lord Cochrane Amorioa.' 111.353-5. nnmediately rode to Boc^^a JNegra and got safely on board his ship. Lord Cochrane demanded from San ]\lartin the pay and prize-money due to the squadron. The latter admitted some of his claims, and said that he was forming a fimd to pay them. Delay, however, did not suit Lord Cochrane. San Martin in his ' Acusaciones ' says that large quantities ' Acasa- of plate had been received from private persons to be "°"°'*' ''■" coined, and that these and other funds in cash had been placed for greater security on board ship at Ancon, so as to be safe from the enemy, if the result of the expected battle should prove unfavourable. Lord Cochrane determined to show San Martin that if ' Narrative he was master on land, he. Lord Cochrane, was master at "^'1*57 200 sea. So he seized this treasure and transferred it to his own ship. What the total amounted to is not clear. San ci^^'^p.^as Martin in his ' Acusaciones ' says that only 131,618 dollars Seeaiso out of more than 400,000 dollars was paid to the seamen, sso-gl.' In the ' Vindicacion ' Lord Cochrane says that the amount seized amounted to 205,000 dollars, that a great deal more than 131,618 dollars was paid to the officers and men, and that he himself had been paid nothing. In the ' Narrative of Services ' he says that he returned all that belonged to private individuals, including 40,000 dollars belonging to the commissariat, and ' 285,000 dollars (not 205,000 dollars) remained, which was subsequently applied to the payment of one year's arrears.' What became of the surplus after ' vindica- the men had been paid, and who the unfortunate owners ''"'"' ''' ' may have been, are matters which remain in dispute. 1' 2 212 THE GUILT OF LORD COCHRANE IX 1814 ' Narrative of Services,' i. 200. ' Acusa- ciones,' p. 9. ' Vindica- cion,' pp. 34 and 35. ' Acusa- ciones,' p. 9. ' Vindica- cion,' p. 35. ' Acusa- ciones,' p. 11. p. 7. ' Vindica- cion,' p. 31. pp. 49, 54. San Martin and Lord Cochrane flatly contradict one another. According to ' Narrative of Services,' Lord Cochrane never succeeded in getting his accounts passed by the Chihan Government, though one would have thought that he might have done so during his long stay in Chili after the naval warfare was practically over. To San Martin's remonstrances he replied on September 20, that he had acted as he had done to avoid greater evils, and that in allowing the sailors to take justice in their own hands by seizing the Government money ' he had prevented them from becoming real pirates.' Li another letter, also of September 20, he said ' that the men were in a state of mutiny, and asks that the evil may be remedied.' This, says San Martin, means ' that he was no longer able to calm the storm that he himself had raised.' Lord Cochrane says that he only took the money of the Govern- ment and of custom-house contraband, and the o\i\j use he made of it was to pay one year's salary to the officers and men of the navy, and that he did not take a dollar for himself. San Martin says : ' His whole conduct since his arrival in Chili proves that self-interest was his sole motive, and that his anger with H.E. the Protector was principally caused by finding that his hopes of acquiring an immense fortune, by the indiscriminate sequestration of Spanish properties, had been frustrated.' ' Su disgusto con S.E. el Protector ha sido verse burlado en las esperanzas' que concibio de adquirar una fortuna inmensa con el indistinto embargo de propriedas espaholas en Lima.' San Martin further accuses Lord Cochrane of an atrocious calumny in spreading a report to the effect that he had said ' that the sailors would only be paid if Chili sold her fleet to Peru.' Lord Cochrane calls San Martin's denial an untruth. Lord Cochrane had other means of raising money besides seizures. In the ' Vindicacion ' he admits having allowed vessels to leave Cahao during the blockade on paying a percentage, and of allowing prisoners to purchase their liberty. He asserts, however, that this was an act LOBi) (orimAXF's ' rixDiCAriox' 213 of charity to individuals, and that he spent the money on public service. He also gave permission to merchant vessels at various ' vindica- ports to disembark their cargoes on payment of 18 per cent. '^'°"' ''' of the value of the original bills of lading. One of these pp. 27,49. ships was the Admiral Cockburn, from which he took naval ' :^'"«'i- i ' Clones, stores instead of cash. The percentage demanded from i>- '•>• that ship amounted to 21,000 dollars. San Martin goes on to say that tlie frigate bearing his p- i-*- name had been wrecked at Chorillos through Lord Coch- rane 's anxiety to sell the flour which it carried, and for which a contract had been made with Don Jose Arismendi. In the ' Vindicacion ' Lord Cochrane makes the following strange defence : — If as you say an agreement about tke sale of the corn was made beforehand with Don Jose Arismendi, but which I cannot remember, I renounce the profits of that contract, in favour of an act of charity, for which we made the sacrifice while you gained the credit. To assert that I lost a ship through my greed, when it might have been attributed to my charity, is not the least iniquity of your charges. In the ' Narrative of Services ' he has the audacity to accuse San Martin of being the cause of the loss of this ship. Had it been true he would have accused him of it as directly in the ' Vindicacion ' as in ' Narrative of Services.' In the latter work he writes : The city being in a state of famine, General San Martin directed that the wheat, of which there were upwards of two thousand fanegas, should be landed at the Chorillos, free of duty As the San Martin was deeply laden, I objected to this from the dangerous nature of the anchorage, but more especially that the only anchor on board was made from the remains of two broken anchors lashed together ; this objection was nevertheless overruled, and as I had anticipated she went ashore at Chorillos, where, from the heavy sweU which set in, she, became a total wreck. There is no mention of this objection or of the anticipation in the ' Vindicacion.' ' Vindica- cion,' p. 48. ' Narrative of Services,' i. 121. p. 15. 214 THE GUILT OF LORD COCHBANE IN JS14 'Acusa- San Martin also accuses Lord Cochrane of sending to Clones, Guayaquil rigging and stores belonging to the Esmeralda to be sold, and he further says that — In another note Lord Cochrane declares that he obtained possession of about 115,526 dollars during the expedition, yet the preceding items (whose total amounts to 76,000 dollars) contain the only account he has given of the employment of these sums. San Martin says that — On the 9th of August Lord Cochrane wrote to the Governor of Callao saying literally what follows : — H.E. General-in-Chief Don Jose de San Martin has instructed me that he proposed to your Lordship that should those forts surrender with the whole of the goods deposited in them, their owners would be allowed to remove them to the country they wished, as H.B.M. corvette Conivay is just now in Chorillos, I offer this opportunity to your Lordship of carrying it into effect, you pa3ang a third part of the amount that would be put on ship board to the person I would designate, in which case I will send an advice boat asking the corvette to sail for this port, if your Lordship's answer is favourable. In any case should the half be surrendered, I offer to find the ships necessary for its removal, paying the usual price of transport for any country out of Peru and Chili with the sole condition that at the time of surrendering, the forts which your Lordship occupies should be burnt down, this being necessary for the guarantee which I promise you on my word of honour, and if any other security should be necessary, your Excellency could suggest it to me. God guard, etc. Callao Bay, August 9th, 1821. The Governor of Callao answered this wicked letter in the following manner : — Your Ex. — In the whole correspondence that has taken place up to the present, between Don Jose de San Martin and this Government, there is nothing that could refer to the proposal which your Ex. makes to me in your official letter of August 9th. God guard, etc. August 14th, 1821. Jose de la Mar. To H.E. Lord Cochrane, Chilian Admiral. f LORD COCHRANE WANTED DOLLAR f^ 215 Lord Cochrane in his ' Vindicacion ' admits that he • vindica- 'offered the governor of the town his protection and the '''°"'' p- ''^"• safe conveyance to any country of two-thirds of the treasure contained in the forts, on condition that the remainder and the possession of the forts should be dehvered to the Chihan nav3^' He gives, however, no reason whatever for his having conducted this negotiation in the name of San Martin without asking his consent. San Martin also complains that Lord Cochrane's pillages ' Acusa- on the coast, and acts of piracy on the high seas, had caused p.^ief' much discredit to the cat\se and had created many difficulties with foreign nations. The Spanish General Cantarac afterwards entered the ' Narrative forts at Callao and removed the treasure, which in the vices" i. ' Narrative of Services ' we are told amounted to thirtv **^' *^^- millions of dollars, equal to about £6,000,000. Lord Coch- cion/p.^'ei rane in his ' Vindicacion ' attacks San Martin for not fighting *' *^- Cantarac, and calls him a coward. Now San Martin had proved his courage on other battlefields, and if he did not fight it was probably because he knew better than Lord Cochrane of what raw materials his army was composed. Lord Cochrane was accustomed to fight on shore in company with Royal Marines and British seamen trained by himself. San Martin was not. It is clear that the greater part of San Martin's army at this time must have consisted of newly raised Peruvians, men who had never been allowed by the Spaniards to train themselves to the use of arms. Besides, this expedition was more political than military, and it is quite possible that San Martin no more wanted to fight a pitched battle than William III did when on his way from Torbay to London. Lord Cochrane wanted dollars ; San Martin w^anted power. Later on, it will be seen how a Greek army was destroyed in consequence of following Lord Cochrane's rash advice. After the proceedings at Ancon, San Martin would not ' Narrative^ give the Chilian squadron any assistance towards a necessary i. imetse^. refit. So Lord Cochrane sailed for the Mexican coast and spent the month of January 1822 in the harbour of Acapulco. On his return to Guayaquil, on March 13, he found the 216 THE GUILT OF LORD COCHRANE IX ISU ' Twenty Years in South America.' ' Narrative of Services,' i. 181. ' Vindica- cion,' p. 40. See also Miller's ' Memoirs,' i. 42a-6. former Spanish frigate Venganza under Peruvian colours. Spanish seamen had not distinguished themselves during this war. They had been passive resisters and had shown no enterprise. They now, however, surpassed themselves. On receiving a 3^ear's pay they had handed over to San Martin the frigates Prueba and Venganza, which were the only Spanish men-of-war that remained on the station. This purchase by San Martin was considered to be poaching by Lord Cochrane and not to be endured. While in the service of other countries, Lord Cochrane appears to have held a sort of Monroe doctrine of his own. He seems to have considered that everything on salt water belonged to him absolutely, and on land too if he could get hold of it. So he seized the Vengayiza. But as she was not ready for sea, he had to leave her behind him at Guayaquil, after having extorted a document on which he attempted to found a claim tor 40,000 dollars. Lord Cochrane reached Valparaiso on June 13, 1822. On October 12 San Martin arrived, having been driven out of Peru by Bolivar, a rival Liberator. San Martin was received at Valparaiso with the honours due to a sovereign prince, and was installed in the palace. The unfortunate Spaniards, and the loyal colonists of Peru appear to have suffered considerably during these quarrels. In the ' Vindi- cacion ' Lord Cochrane says that ' in his opinion half the property of the Spaniards should have been taken, and the remainder should have been left,' but that San Martin sold the Spaniards letters of citizenship, and then proceeded to rob and exile them. I shall not trouble the reader with any further extracts from the ' Acusaciones ' or ' Vindicacion.' There are many more ' Acusaciones ' partly answered by Lord Cochrane, but I think I should only weary the reader by reprinting them. They show San Martin ^ as a proud and ambitious ^ Miller says of him : ' Having redeemed his pledge of allowing the Peruvians to assemble in congress, to form a government conformable with the mshes of the people, San Martin, emulating the example of Washington, retired into private life. The only riches he has acquired is the glory resulting from his great and patriotic labours dm-ing ten years of incessant exertion both in the cabinet and in the field.' LOBD rnrnn.iXF kxtfrs tiif. huaziliax service 217 man, somewhat bombastic, desirous of power, and Lord Cochrane as chafing under restraint of any kind, more especially when it interfered with his accumulation of wealth. I do not wish it to be understood that I take the side of San Martin in all his quarrels with Lord Cochrane, but I want to show that there are Zenteno and San IMarf in sides to these questions. Although Lord Cochrane remained at Valparaiso from * Narrative. June 13, 1822, until the middle of January 1823, he never "f^Jf-j was able to settle his accounts with Chili to the satisfaction 276, 277, of either party. In 18$§ the Chilian Governmenir granted him the sum of £6,000. In 1842 that Government granted the full pay of his rank to General San Martin for life. In 1857 they did the same for Vice-Admiral Lord Cochrane. The address of the President of the Eepublic asking for the latter grant is printed in the appendix to the ' Narrative of i. 287. Services.' As it contains three historical mistakes, I am inclined to think that it must have been based upon a petition of Lord Cochrane's. Lord Cochrane's services to Chili were not confined to what he did when actually fighting Spaniards. They had the benefit of his knowledge of refitting and repairing ships without much assistance from dockyards. Our experience in these matters, gained in long blockades during the French war, was unequalled by that of any other nation. Lord Cochrane knew all that had been learnt by our seamen, and was himself a man of infinite resource. The Chilian navy will probably always contain an Esmeralda. The Almiranie Cochrane, the San Martin, the Blanco Encelada, and the Zenteno continue to figure on its navy lists. In January 1823 Lord Cochrane quitted the Chilian service and entered that of Brazil. _> CHAPTER II BRAZIL Lords' Committee for Privi- leges, 1862. See Report of Jackson's Evidence, taken by Commission on July 30 and 31, 1862, p 32. Lords' Committee for Privi- leges, Mr. Earp's letters. Set out in ' Report of Jackson's Evidence.' It now becomes necessary to give some short accomit of Lord Cochrane's proceedings in Brazil. Unfortunately the only authorities that I have been able to find are ' Narrative of Services in Chili, Peru, and Brazil,' some other Earp- Jackson-Dundonald writings, and the condensation of them that has been made by the Hon. J. W. Fortescue. William Jackson was Lord Cochrane's secretary while in Brazil. He told the Commissioners that he had held the rank of major, and that he had acted as paymaster when on board ship in Brazil. With such a secretary to back him up, one does not wonder at Lord Cochrane's getting into difficulties about his accounts. Mr. Jackson supplied Mr. Earp with information for his books, and kept a journal, whole pages of which are transferred to ' Narrative of Services.' That book was avowedly written for the purpose of supporting Lord Cochrane's pecuniary claims. Mr. Jackson considered that he also had claims against Brazil. It is, therefore, a matter for regret that there are apparently no contemporary documents available for the purpose of checking the statements contained in the above works. There never appears to have been any fighting, but only a great deal of plundering on the Brazilian coasts. I cannot find that there were ever any casualties on board of any of the ships under Lord Cochrane's orders. None are mentioned as having occurred on board of the Portuguese vessels, so I presume that, if there were any, there were very few. It was simply a case of wolves chasing sheep. The real struggle in these campaigns was between Lord Cochrane and the Brazilian prize-courts. 218 LOED COCHBANE OFF BAHIA 219 When Lord Cochrane arrived at Brazil on March 13, 1R23, ' Narrative he found that the authority of Don Pedro, the Constitutional vices!' ii. Emperor of Brazil, was acknowledged at Eio Janeiro and ^"^'" in the southern provinces of that country, but that the towns of Baliia, Maranhani, and Para in the north were still held by Portuguese troops. Some of the officers and men who had served in Chili accompanied Lord Cochrane to Brazil. After much discussion as to remuneration, prize-money, &c.. Lord Cochrane and his followers entered the Brazilian service, much after the fashion of a grand company of condoUienxin the later Middle Ages. On April 3 we are told that Lord Cochrane when off Bahia with his one line-of-battle ship, the Pedro Primiero, two frigates, a corvette, and a brig, met a Portuguese squadron consisting of a line-of-battle ship, five frigates, a brig, and a schooner. Some firing and manoeuvring Dundonaid, took place. Mr. Fortescue remarks : ' It is lamentable to f' ^^^' 11 1 J 1 • T 1 /^ 1 ? in • Narrative recall that this. Lord Cochrane s only Heet action, was of Ser- hardly opened before it was abruptly closed.' ' Narrative 28!*^^' "' of Services ' says : ' In this affair no lives were lost.' Lord Cochrane complained that his ships were very badly found, that they had not obeyed his signals, and that some of his men sympathised with the Portuguese. He set to work to remedy these defects ; prepared some fire-ships, and then took up a position off Bahia. On July 2 the Portuguese evacuated that place, taking with them, not only the garrison but a large number of merchant- ships filled with Portuguese families. ' Narrative of Services ' describes the Portuguese squadron .. ^„ 11. Oi. as consisting of one line-of-battle ship and twelve smaller men-of-war, and between sixty and seventy merchant vessels and transports full of troops. Lord Cochrane had with him the Pedro Primiero, two frigates, and a brig. The Portuguese soon fell into confusion, and many of the troop- ships and merchantmen were seized. When a prize was boarded, her water-casks were stove in, and her main and mizen masts were cut away, and the arms thrown over- board. She was then given orders to make the best of a nui. fair wind back to Bahia. It was not intended to weaken 220 THE GUILT OF LORD COCHRAXE IX 1S14 the crews of the pursuing ships by detaching prize-crews. ' Narrative The squadron which should have protected the convoy u. 53."'^*^*' tlid on one occasion give chase to the Pedro and fired a harmless broadside at her. This affair appears to have been the nearest approach to fighting that took place during this war. Some of the Portuguese tried to make for Maran- p. 54. ham, but the Pedro headed them off, captured one of them p. 67. and dispersed the rest. On the 16th, at 3 a.m., the Pedro fired a broadside at a frigate that did not return the fire. p. no. Then the mainsail of the Pedro split, and she gave up the chase. Captain Taylor of the frigate Nictheroy pursued the enemy to the Tagus, and burnt four vessels there, under the guns of a hne-of-battle ship. In his despatch to the p. 56. Minister of Marine, Lord Cochrane describes the captm'ed vessels as resembUng ships of-war. On giving up the chase, Lord Cochrane proceeded to Maranham in the Pedro. He declared that he had a fleet and army outside, and summoned the Governor and the Junta to surrender at once. Two daj-^s after his arrival the inhabitants declared their independence, and it was arranged that the garrison should either return to Portugal or remain as private individuals. He sent a brig to summon Para in a similar manner. Captain Grenfell who commanded p. 108. her was equally successful, not only in changing the Govern- ment at Para, but in securing a Portuguese frigate that had just been launched, besides some other vessels. For these services Lord Cochrane was made Marquis of Maranham. So far he had been completely successful. pp. 79-82. But the real struggle was now about to begin. Under an Lnperial decree of December 11, 1822, he claimed not only all the money found in the treasury of the captured places, but all the money found in the customs houses, all Govern- ment stores, and other property that had been seized, worth several milHons of dollars, including outstanding % debts — that is bills given at the customs house in payment '^ for goods not yet disposed of. The squadron had also seized 120 vessels, some of them with valuable cargoes, and there was a quantity of merchandise in the customs houses. no. QUARRELS WITH BRAZILIAN PRIZE-COURTS 221 But the Brazilian prize-courts held views of their own. Possibly they considered that the Emperor's decree was unconstitutional. Or they may have been in sympathy with the Portuguese as suggested in the ' Narrative of Services.' At any rate, they refused to condemn most of his prizes. Captain Taylor of the Nictheroy was sentenced to six months' imprisonment, and to forfeit double the amount of his prize-money, on behalf of the owners of the vessels destroyed « Narrativ. in the Tagus. Captain Grenfell had brought from Para "fScryiceH 40,000 dollars, as ransom for prizes that he had taken. His ship was boarded in hiH,absence, and the money was removed to the treasury. He was then tried, but acquitted for his conduct to the junta at Para. The ' Narrative of Services ' is my sole authority for the above statements. I can, how"ever, quite understand that there was a Brazilian as well as a Cochrane point of view of these questions. I take it that the merchants and shipowners of Northern Brazil, who had joyfully transferred their allegiance to the Emperor, were much annoyed and sur- prised at finding their property conliscated, because their vessels were unprovided with any but Portuguese papers, when they had had no opportunity of obtaining Brazilian documents. Also, that the local governments or juntas may have considered that there was a distinction between their money and that of the Portuguese Government. While these prize-court disputes were being thrashed out, the northern provinces of Brazil were in a state of ferment. There was a revolution going on at Pernambuco. The squadron would not sail without payment. On July 24, 1824, 200,000 dollars were paid to the secretary, Mr. Jackson, who with Captain Crosbie brought the money on p- 155. board the Pedro. According to Mr. Jackson, the greater part of this money was paid to officers and men. Next year there were disturbances at Maranham. On p* ^^^" March 11, 1825, Lord Cochrane declared martial law at that place and forced the junta of that place to pay him one-fourth of what he considered due to him and to the squadron. He then shifted his Hag to the frigate Firanga. pp- 3^^1-3. According to Mr. Jackson's journal, the last payment was 222 THE GUILT OF LORD COCHRANE IN 18 14 ' Narrative of Services,' ii. 2.1j, 249. 250. p. 253. ' Life of Lord Coch- rane,' i. 319, 325. p. 325. ' Narrative of Services,' ii. 264. received from the treasury at Maranham on May 14. The Piranga sailed for Spithead on the 19th of that month ; arrived there on Jmie 26. In the ' Narrative of Services ' he is represented to have gone to sea for the benefit of his health, and with the intention of retm'ning to Kio, but it is said that he was unable to do so on account of stress of weather and shortness of provisions. Either he was laughing at the Brazilian Govern- ment when he made such an excuse, or he made it from sheer habit of deception. With all his faults, Lord Cochrane was a thorough seaman, and knew as well as any one how to take advantage of a slant of wind. If he sailed from Maranham and arrived at Spithead after a passage of thirty-nine days, it was because he meant to go there for reasons of his own. In passing the Azores he overtook a brig bound for Gibraltar, that had left Maranliam ten days before the ' Piranga,' so that it is clear that he did his best to make a quick passage. I have no doubt that the real reason of his return to England was to facihtate his arrangements for obtaining the command of the Greek Navy. While on the spot he could make a better bargain. His friends in England, moreover, had urged him to enter the Greek service before he left South America. He did not wish to fall between two stools, and he therefore did not intend to give up his Brazilian appointment until matters had been finally settled. The terms that he accepted from the Greek deputies, John Orlando and Alfred Luriottis, were £37,000 down, and £20,000 on the completion of his service, to be paid out of the new Greek loan of two millions sterling. These arrangements w^ere practically completed on August 16, but we are told that he had not finally pledged himself, because he was still in the Brazilian service. In the meantime there were difficulties about the Piranga. Lord Cochrane had given himself leave to go to Scotland at the end of August, and did not return to London until the beginning of November. The Brazihan envoy in London wished him to give up possession at once. He was appar- MORE 3I0NEY*'QUARRELS 223 ently afraid of Lord Cochrane's selling or pledging the ship to satisfy his claims. On November 7 the Brazilian envoy wrote to Lieutenant Shepherd, who had been left in com- mand, declining to furnish the frigate with anything until the officers and men ' cast off all subordination to the Marquis of Maranham.' On or about November 12 Lord Cochrane gave up tlie command. A report was afterwards made to the Brazilian Govern- ' Narrative ment wdiich, while acknowledging Lord Cochrane's services, h. 276.'°°^' says : ' It is impossible to conceal that unqualified and arbitrary acts of the moSt audacious daring were committed by him and by the ships under his command, occasioning to the National Treasury enormous losses, particularly by the heavy indemnification of an infinite number of bad prizes, which it was obliged to satisfy.' This report also states that the gross value of the prizes p. 292. amounted to 521,315 dollars, in which the Admiral was entitled to share. The same report says that 348,238 dollars, including 217,659 dollars received from the Junta at Maranham at different times, of which 108,736 dollars Avas paid under the title of indemnification for prizes, had been paid to the Admiral and that he was bound to give an account of it. The second volume of the ' Narrative of Services ' was apparently published in answer to this report. It prints extracts from Mr. Jackson's journal and other 302 documents to show that payments out of these sums had been made to the officers and crews of the squadron. On April 10 the following entry appears in the journal, ibid. ' A decree arrives by the Guarani from the Imperial Govern- ment, directing the Interim President that no money shall be paid to the squadron on account of the taking on Maran- ham.' Lord Cochrane did not allow this decree to be obeyed, and more money was paid on April 26 and on May 18. Then he sailed for Portsmouth. Lord Cochrane's BraziHan claims were taken up by the eleventh Lord Dundonald in the Life of his father, written by him and Mr. Fox Bourne. In consequence of this and of some other proceedings, a further payment was made T*'"**; to Lord Cochrane's heirs circa 1877, and Mr. Earp's i8"s. p- n. ^ 224 THE GUILT OF LORD COCHRANE IN IS 14 * Narrative of Services,' ii. 302. Speech before Com- mittee of Privileges. representatives, after a law-suit, received 10 per cent, of this sum from the present earl. It does not appear that any of this money was paid to Mr. Jackson's representatives. From entries in his journal it seems that in 1825 he received half per cent, of the monies he paid to officers and men in addition to his monthly pay. I am aware that this account of Lord Cochrane's services in Brazil is very imperfect, but if so, it is because, in the absence of other authorities, I have had to base it on the Earp-Jackson-Dundonald writings, and on quotations and translations of such documents as their authors thought wise to print. It is a pity that the whole of Mr. Jackson's journal is not available instead of extracts only. In several places Lord Dundonald complains that he was out of pocket by his services. If so, one wonders where his money came from. He was pecuniarily ruined when he left England in 1818. On June 9, 1863, Sir Fitzroy Kelly, who was Lady Dundonald's counsel, described him as having ' returned covered with glory from South America, he reached home abounding in wealth.' And on another occasion he said : ' After the return from South America, from which country he had come back loaded with wealth.' CHAPTEK III GREECE I HAVE pointed out wl^at immense opportunities Lord Cochrane had of making money, with an unscrupulous secretary to back him. Wherever he went he appears to have been unceasingly involved in money squabbles. If other historians had not abeady written accounts of the war between Greece and Turkey we should probably have been told by the writer of the ' Life of Lord Cochrane ' that not only South America, but that Greece also, owed its independence solely to his exertions. But Finlay, Gordon, and Tricoupes had already been before him. Of course they are all said to be wrong in their facts whenever they disagree with Lord Cochrane. For instance, in referring to Finlay's History we are told : Mr. Finlay served as a volunteer in Greece under Captain Fiulay, Abney Hastings. His work is certainly the best on the subject, Q^eek°Re^ though we shall in later pages have to differ widely from its volution,' strictures on Lord Cochrane's motives and action. But our 'Yife of' complaints will be less against his history than against two LordCoch- other leading ones, — General Gordon's ' History of the Greek 292 '». Eevolution' (1832) and Mr. Tricoupes' 'History' (1853-6), '>ife of which is not very much more than a paraphrase of Gordon's work Lord Coch- rane,' i. 202. Finlay's account of Lord Cochrane's engagement to serve Greece is as follows : — The grandest job of the English Philhellenes was purchasing Finlay, the services of Lord Cochrane to command a fleet for the sum ^^^' of £57,000 and setting apart £150,000 to build the fleet he was hired to command. Lord Cochrane was engaged to act as a Greek Admiral in the autumn of 1825. He went to reside at Brussels 225 Q 226 THE GUILT OF LORD COCHRANE IN 1814 while the fleet was building, and arrived in Greece in the month of March 1827, as has already been mentioned, before any of the steamships of his expedition. Indeed the first vessel which was commenced at London by his orders, did not arrive in Greece until after the battle of Navarin. The grandson's edition of 1890 prudently abstains from all mention of the price of Lord Cochrane's services to the Greeks, and also omits to mention the subsequent disputes concerning it. In this edition, however (p. 520 • Lifa of et seq.), we are told that he went to Brussels not only to ra"ne,' L° ' avoid the Foreign Enlistment Act, but also to avoid litiga- 328-32. ^-j^j^ -j^ connection with his South American captures. When it suited him, however, he came to England boldly enough. On May 8, 1826, he left Flushing in the schooner yacht Unicorn of 158 tons, landed at Weymouth, hurried up to London, inspected the steamers that were being built at Mr. Galloway's works at Greenwich, rejoined the Unicorn on May 20 at Dartford, yachted round the coasts of England and Ireland, touching at Falmouth and at Bantry Bay. He then sailed about the Mediterranean, touching at Messina, Malta, and Marseilles. On December 8 he went to Geneva for a week or two to be introduced to the Swiss Philhellenes. On February 14 he left Marseilles, touched at St. Tropez, reached Paros, and entered upon his service in Greek waters on March 19, 1827, He had taken ten months to go from Flushing to Greece — a record voyage. Yet no man knew better how to make a quick passage when he chose to do so. Still, it would have been far better for Greece had he never come out at all. Piniay, ii. Finlay says of him : ' He had been wandering about ''^Life of'^ ^^^^ Mediterranean in a fine English yacht, purchased for him Lord Coch- out of the proceods of the loan, in order to accelerate his 367 ets'iq. arrival in Greece, ever since the month of June 1826.' In the ' Life of Lord Cochrane ' an attempt is made to prove that the above quoted passage is untrue. But the dates of his movements, as taken from the ' Life ' itself, certainly appear to support Mr. Finlay 's account of his proceedings. His delays are attributed to Mr. Galloway, the engineer who had contracted to build the steamers. LOIiD COCHRANE ATTACKS MR. CALLOWAY 007 * Life of Lord Coch- rane,' i. 333. Lord Cochrane even goes so far as t^ say that ' he did not know till afterwards that Galloway having private connec- tions with the Pasha of Egypt never intended to do the work he was called upon to do.' No authority whatever is given for this bold assertion. In 1827 the Greek deput}^ A. Luriottis, printed the correspondence respecting the Greek steam vessels. In 1871 Mr. K. H. Galloway, wishing to vindicate his father's memory, published a pamphlet entitled ' Eefutation of calumnious statements concerning Alexander Galloway, contained in the Earl of Dundonald's book entitled " Life of Lord Cxxjhrane." ' The grandson, in his 1890 edition, wisely omits all the attacks on Mr. Galloway, but the Hon. J. W. Fortescue says : ' The contractor was in the pay of Ibrahim Pasha, Fortescuo's the Commander-ni-Chief of the Turkish forces in Greece, aid,' p. 179. and had no intention of doing anything for the cause of Greece, beyond taking a share of the new loan.' The remarks about taking a share of the new loan appear to me to be more applicable to Lord Cochrane than to 'Tr. Galloway. Lord Cochrane hoisted his flag on board the Hellas, an ^merican-built frigate, one of the largest then afloat. She carried 64 guns, having 32-pounders on her main deck, and 42-pounder carronades on her upper deck. His first work as commander of the naval forces of Greece had the effect of causing the destruction of the main portion of the Greek army. The Turks were blockading the Acropolis of Athens, which they hoped to reduce by famine. A Greek army under General Church (afterwards known as Sir Eichard Church) and Karaiskakes was endeavouring to relieve it. We are told in the ' Life of Lord Cochrane ' that Karaiskakes made unreasonable demands for provisions and ammunition which it was no part of his duty to supply. Tricoupes, Gordon, Finlay, and all the other authorities, say that Lord Cochrane still had £20,000 ; but the ' Life ' says that he had only been supplied with £8,000, most of which had already been spent. I do not pretend to decide which was the correct account at this distance of time. Fabvier, who commanded in the Acropolis, was afterwards said to have q2 ' Life of Lord Coch- rane,' ii. 47. i ^-L. 228 THE GUILT OF LORD COCHRANE IX 1814 r/'3 Eng- lish Histori- cal Reciew, July 1890, p. 504 ; Stanley- Lane - Poole's articles on Sir Richard Church. Tricoupes, V. 66. ' Life of Lord Coch- rane,' ii. 72. provisions for four months, but the leaders of the reheving forces beheved that he had very much less. Stanley-Lane-Poole writes : - Church was no coward nor no Fabius neither, but he saw the hopelessness of the hasty Admiral's tactics, and, supported by all the Greek Commanders, he tried to wait for his opportunity instead of forcing fortune. But Cochrane was resolute ; let them act he said, or ofi he would instantly sail and leave the whole force of nearly 10,000 men to starve or be massacred ; and thus it happened that at two councils of war, held in the early days of May, the fatal forward movement was planned and agreed to. Tricoupes also refers to ' the arrogance with which Coclirane forced his rash scheme upon the council and his habitual rejoinder to every argument, " that he would take off ships and money and leave Greece to perish." ' Lord Cochrane's plan of attack might have succeeded had the Greek army been composed of well-armed regular troops, or even of Anglo -Chilenos drilled and led by such men as Major Miller. But it was a mere collection of men with muskets, unprovided with bayonets or weapons for close fighting. They knew their own weakness, and their leaders knew it also. Yet Lord Cochrane insisted upon the attack being made, and afterwards blamed the Greeks for their failure in no measured terms. He complained that they stopped on their way to make httle entrenchments called tamburias, instead of going straight on. The Greeks were defeated. Then- defeat became a rout. Lord Cochrane himself was driven with other fugitives into the sea. There they remained until some of them were rescued by boats from the squadron. Lord Cochrane owed his safety to swdmming and to his great height. Shorter men were killed or drowned. He had gone on shore to take credit for the victory he had hoped for. How grim he must have felt, up to his neck in water, contemplating the massacre caused by his own obstinacy ! Lord Cochrane then proceeded to try to organise the Greek navy. He had succeeded in amalgamating Anglo- Chileno crews, but with the Greeks he failed utterly. His GREEK FIBE-FiinPfi 229 failure was no doubt parti}'" attributable to the fact that the Greeks considered him responsible for their disaster at Athens. The Greeks thoroughl}' understood the handling of small vessels, but were utterly lost on board a large heavily-gunned ship like the Hellas. His condemnation of the whole of his crews as cowards is absurd. The ' Life of Lord Cochrane ' says that ' Canaris alone among the ' Life of Greeks was brave.' In disproof of this I give a summary ra°ne,' ii°94! of the attacks made by Greek fii-e-ships. On June 19, 1822, at Psara, Canaris attacked the Turkish ,. , Alison s fleet with two lire-shipa manned by 2 officers and 32 men. 'History of He killed their Admiral and burnt his flag-ship with 2,300 fgTsTi' ' troops on board. ^GreerR?- On November 9, 1823, he burnt a two-decked ship with volution.' 1,600 men on board. The Turkish fleet cut their cables, "ej. and two of their frigates were wrecked. The rest of the fleet ran for the Dardanelles, leaving the command of the sea to the Greeks, none of whose vessels mounted more than 20 guns. On August 15, 1824, Canaris took a fire-ship into the middle of the enemy's fleet, threw it into confusion, dis- persing their ships. On another occasion he grappled a frigate of 54 guns with 600 men on board. He burnt her and two other vessels. Samos was in consequence reheved. Miaulis also, when off Samos, set 2 frigates on fire and drove the Turkish fleet back to the Dardanelles. On another occasion he burnt 1 frigate, 12 smaller vessels, and 15 transports. On the evening of May 13, 1825, when off Modon, MiauHs sent in 6 fire-ships. They burnt the Asia of 54 guns, 2 corvettes, 3 brigs, and 20 transports. On May 24, 1825, Saktouri attacked a Turkish ileet with fire-ships. They burnt a 66-gun ship with 800 men on board. A 34-gun ship and 2 corvettes shared her fate. On September 24, 1824, Papantoni burnt the Tunisian Admiral's flagship of 44 guns and 750 men. Sometimes the Greeks attacked by daylight on board disguised ships carrying Turkish colours. They nearly always gra])i>lod the enemy's ships before abandoning their fire-ships. I\Iost 230 THE GUILT OF LORD COCHRANE IN 1S14 Life of Lord Coch- of the Turkish men-of-war carried troops, which accounts rane,' ii. for the large number of men on board. 112. Compared with all these exploits those of Aix Koads sink into insignificance. When at that place Lord Cochrane had caused a panic, but had actually hurt very few of the enemy. On August 1 the Hellas captured a Turkish corvette, the only service he appears to have rendered to the cause of Greece. In the spring of 1826 diplomacy had set to work. It moved slowly, and it was not until the autumn of 1827 that the allied fleets of England, France, and Eussia found themselves blockading Ibrahim Pasha's fleet at Navarino. The situation became strained. On ii. 145. October 20 the guns went off of themselves, the Turkish fleet was destroyed, and the cause of Greece was saved. The three Admirals who commanded the fleets of the mediating powers published a letter, dated October 24, in which they spoke disrespectfully of the Greek fleet, ' making no distinction between them and the mere pirates.' Though the most important part of his life had been spent in making questionable seizures, bordering on piracy, Lord Cochrane resented this, and replied denying that the ships under his orders had committed acts of piracy, or that they had captured neutral vessels, except when breaking a blockade. I cannot find that he ever received satisfactory answers to any of these remonstrances. Some of the Greek vessels had undoubtedly been guilty of piracy, but it would not be fair to make Lord Cochrane responsible for all their proceedings. The Greeks constantly disobeyed orders, and he had not sufficient means of enforcing disciphne. On January 10, 1828, he left Greece in the Unicorn, and reached Portsmouth on February 11. The Greek Deputy, Andreas Luriottis, wrote to Sir Francis Burdett and asked for the return of the £37,000 already paid to Lord Cochrane on the ground that he had broken his contract by leaving Greece. He indignantly repUed, accusing the Greek Government of having assumed his powers, of having interfered with the distribution of armed vessels, and of having covered the seas with piratical craft. Altogether a very pretty quarrel. He however went back to Greece ii. 170. LORD COCHRANE RETURNS TO E NOLAN D 231 at the end of September. As his offer of further service was not accepted by President Capo d'Istrias, he returned to England. He is said to have generously surrendered the £20,000 that he was to have received on the comple- tion of his work. But I do not find that he ever had a chance of getting it after he had been asked to return the £37,000. A _/ PAET IV LORD COCHRANE RE-INSTATED IN THE NAVY After his sea-service under foreign flags was over Lord Cochrane appears to have spent his time in scientific pursuits and experiments, and in drawing up deceptive accounts of the principal events of liis life. In this latter portion of his work he met with considerable success. As the memory of these events faded away, and when the people connected with them died out, a younger generation arose who believed in his reiterated statements. Besides, it was not the business of anyone in particular to contradict them. On June 4, 1828, Lord Cochrane addressed a memorial to the Duke of Clarence, then Lord High Admiral, asking for reinstatement. It contains no new arguments, but the old ones are repeated in a more suitable tone than in his former appeals, and there is a complete absence of those wild charges against all concerned in the prosecution, and against his judge, which has necessitated the publication of Mr. Atlay's book and the resume of the case in this book. On June 14 he received the following answer : ' The King's Cabinet cannot comply with the prayer of the memorial.' In 1830 a fresh pamphlet was drawn up entitled ' Keview of the Case of Lord Cochrane.' It was forwarded to King Wilham IV on December 10, 1830, accompanied by a short memorial in the form of a letter which is added as a preface in some of the printed copies. It does not appear to have been pubhshed, and there is no name of any publisher or printer attached to it. Although it is written with greater ability than its prede- cessors, the arguments used therein were apparently not good 232 1830 PAMPHLET 233 enough to be exposed to the fresh breezes of pubHcity at a time when many persons recollected the details of the trial. The writer, throughout, treats the evidence given in the affidavits made both before and after the trial as of equal weight to that which had been tested by cross- examination. This 1830 pamphlet deals at length with the story of De Berenger's visit, and as to how the bank notes found in De Berenger's possession reached him, on much the same lines as was done in the ' Letter to Lord Ellenborough.' The case set up in it f^" Lord Cochrane differs in toto from Atlay, that presented by his counsel at the trial, and from the tissue of ^^g ^^■*' contradictions and inaccuracies contained in the ' Autobio- graphy of a Seaman,' is also absolutely conclusive as to the futility of the gross charges brought against Lord Ellenborough. The foundation of the book is the mismanagement of Lord Cochrane's case by his legal advisers, solicitors, and Counsel alike, and especially the wrong done to him by uniting his defence p. 285. with that of Cochrane Johnstone. Mr. Atlay's book gives several quotations from the 1830 pamphlet for the purpose of proving this, and then goes on to say : When this line of argument is adopted, it is tantamount to an admission that Lord Cochrane's conviction, if he was an innocent man, was owing not to the Judge who tried him, but to his own solicitors and counsel ; and the question lies between Lord Cochrane and them and not between Lord Cochrane and Lord Ellenborough. How far this accusation of neglect and incapacity has been made out I leave to the judgment of those who have read the preceding pages, and who will form their own opinion as to how far a firm of solicitors, then as now famous for their zeal and ability, and a group of the ablest and astutest advocates who have ever practised at the English Bar, were culpable in their management of Lord Cochrane's case. Another feature which is very noticeable in tlie book is the p. 286. absence of the fierce invectives against the Judge and prosecutors, of the charges of conspiracy and corruption, of the imputations on the Government and the Admiralty. These had been plentiful enough in Lord Cochrane's earlier writings and they were destined 234 THE GUILT OF LORD COCHRANE IN 1814 to re-appear again ; but they were intended for a class of audience very diflerent to that which this carefully reasoned work was addressed to. Of course I do not pretend that the writer in any way withdraws from the position that Lord Ellenborough misre- presented the evidence, and identified himself with the view put forth by the prosecution. Whether Lord Ellenborough did misrepresent the real facts, and put strained or forced conclusions upon them suppressing all that was favourable to the prisoners and dwelling on all that told against them, can only be determined by comparing the evidence with his summing up. But at the same time I am bound to insist that his summing up should be tested by the evidence given in Court and not by a fanciful representation of evidence which was never tendered. The author of the 1830 pamphlet is entirely at variance with Lord Cochrane's solicitors as to the method in which they examined the servants previous to the preparation of the Brief. A great point is also made of the discovery, elicited on the trial of Davidson for perjury, that De Berenger arrived at Dover in a coat described by two witnesses as being dark green, and this Atlay. is assumed to have been the identical coat worn by him in Lord ^' ' . Cochrane's presence. The writer however omits the fact that graphy,' Lord Cochrane over and over again has asserted that De Berenger 11. 425. appeared before him in uniform. As we have seen there was nothing at Davidson's trial to shew that the coat so worn was any part of a uniform. 'Letter to In his affidavit of March 11, 1814, he describes it as a borough/"' f?^^^^^ uniform ; and in 1847, in his ' Observations on Naval p. 79. Affairs,' he says ' De Berenger came to him in his sharp- Stt'°"- shooters dress: 1877, par. 8. Lord Melbom'ne informed Lord Cochrane on December 18 that ' His Majesty had returned the letter to him, but has not been pleased to signify any commands.' Lady Dundonald, however, succeeded in penetrating into the presence of WilHam IV and there pleading her husband's cause. It is very difficult for a man brought up as a sailor to say ' No ' to a charming lady. Her eloquence appears to have been irresistible, for on March 24, 1832, a free pardon was granted, and on May 2 Lord Dundonald was restored to the Navy List as a Eear-Admiral. A pardon LADY DUN DONALD AND WILLIAM IV 235 obtained in this manner cannot be looked upon as a proof of innocence. In General Miller's ' Memoirs ' Lady Cochrane is referred to as follows : — Tcrtulias, or routs or dances were given nearly every eveuinf; Vol. i. at Valparaiso. The two presiding belles were Lady Cochrane and P' '^^^' Mrs. Commodore Blanco, both young, fascinating, and highly gifted. The first was a flattering specimen of the beauty of England, and the second was perhaps the most beautiful and engaging woman in Chile, i That he was not at this time restored to his honours, and that no compensation in money was then given to him, is to my mind conclusive proof that those who pardoned him and restored him to the Navy List did so merely as an act of forgiveness to one who was, at any rate, a gallant sailor. Had he been an ordinary individual, with nothing to rely on except the merits of his case as connected with the trial only, and had he not captured the Esmeralda, I feel quite certain that he would never have been pardoned at all. PoHtics had nothing to do with his condemnation, but they had a good deal to do with his restoration. On this subject Mr. Atlay wrote : In connection with the grant of the pardon it is only right to Select Com- quote the words of Lord Melville in his letter of November 4th, p"*j^rt, 1825 : — ' I apprehend that nothing but a free pardon from the par. 6; Crown can now do away the effect of the verdict and sentence in p. 289. your lordship's case ; but unless the Secretary of State and the Law Officers of the Crown were satisfied that such verdict and sentence were unjust, and ought not to have been pronounced. His Majesty would not be advised to grant a free pardon.' I humbly submit that Lord Melville was incorrect in stating the grounds on which pardons are accorded, or the inferences that must necessarily be drawn from them. A pardon may be granted on many grounds, and is consistent with either guilt or innocence ; subsequent or previous services, or the fact that 1 At page 298 a whole paragraph is devoted to Lady Cochrane. She is there described as having ' the grace of a fairy.' 236 THE GUILT OF LORD COCHRANE IN 1814: See ' Obser- vations on Naval Affairs,' p. 73; Atlav, pp. 289, 290. ' Autobio- graphy,' ii. 19. ' Life of Lord Camp- bell,' u. 19. the punisliment has entailed consequences out of all proportion with the sentence itself, have over and over again won the pardon of prisoners who are confessedly guilty ; and in the case of the innocent it may well be, and in the overwhelming majority of cases is, due to the fact of evidence coming to light which was unknown or unavailable at the trial. I have no knowledge of the number of pardons that are annually granted in the United Kingdom, but of this I am sure, that it is the very rarest occurrence for them to be bestowed on the ground ' that the verdict and sentence were unjust, and ought not to have been pronounced.' In the name of the jury and Lord Ellenborough, who tried the case, and of the upright and distinguished judges who in- flicted the sentence, I protest against any such inference being drawn. The law officers at the date when the pardon was granted were Sir Thomas Denman (afterwards Lord Cliief Justice of the Queen's Bench), Attorney-General, and Sir William Home, Solicitor-General The grandson, in a letter to The Times of August 20, 1889, says, ' both these ' (Lord Brougham and Lord Campbell) ' were the great law officers of the Crown, the one being Lord Chancellor and the other Solicitor-General at the time of his restoration to the navy, and therefore to their opinion as gi'eat lawyers must be further added the weight of official responsibility.' It is not accurate to describe the Lord Chancellor as a law officer, and I doubt whether he is consulted, at any rate officially, in such matters. Lord Brougham's testimony to the impartiality of Lord Ellenborough at the trial is as emphatic as words can make it. Lord Campbell was not made Solicitor-General for some months afterwards (November 24, 1832), and the next chapter will, I think, afford evidence of the extent of his acquaintance with the facts of the trial. In the ' Autobiography of a Seaman,' vol. ii. p. 318, Lord Cochrane is represented as saying : ' That unjust pubHc sentence has never been publicly reversed, nor the equally unjust fine inflicted on me remitted.' . . . ' The Govern- ment of my country has, though often invoked, refused to LORD COCHRANE'S PECUNIARY LOSSES 037 reinvestigate my case, as impossible in form, and from foar of creating a precedent.' Now the ' Autobiogi-aphy ' referred to was pulilishod in 1860. In 1877 Lord Cochrane (now Lieut. -General the Earl of Dundonald) particularly requested the Select Committee of the House of Commons ' not to recall the incidents of the trial of Lord Dundonald, still less to scrutinize the evidence on which he was convicted.' To have done so would have been fatal to his claims, as the slightest scrutiny of the evidence would have destroyed the general belief in Lord Cochrane's innocence, which had been brought about by the pubhcation of the so-called ' Autobiography of a Seaman.' Li 1847 a pamphlet, ' Observations on Naval Affairs,' appeared under the name of Lord Dundonald which con- tained a recapitulation of the principal facts of his case, based principally on the ' Letter to Lord Ellenborough.' It contains some curious and characteristic calculations ' Observa- as to Lord Cochrane's pecuniary losses in consequence Naval of the trial, an improved version of the affair with the ^^l^^' so-called French corvettes on the Gironde, one of which vessels appears to have gi'own with the lapse of time into a large armed frigate-built storeship, and also a great deal of abuse of Lord Ellenborough. At p. 85 the Gloire is described as a corvette, and as a frigate-built ship at p. 89. Lord Cochrane is depicted in it to have become more innocent and more ill-used than was alleged in 1830, and I have no doubt that many people actually believed its contents. At any rate he was shortly afterwards re- stored to his honours, and appointed to the command of the North American and West Indian station. At a ceremony of investiture, unless the new G.C.B. is of Eoyal blood, it is customary for the two junior Grand Crosses present to act as his sponsors. When this ceremony took place. Lord Ellenborough, the eldest son of the Chief Justice, happened to be one of the juniors present and acted as his sponsor. Taken by surprise, he may well have preferred to act as his sponsor to causing an unseemly squabble in, or almost in, the very 238 THE GUILT OF LORD COCHBANE IX 1814 presence of the Throne, and I do not see that any inferences can well be drawn from his conduct. In all probability he had never heard of the 1830 and 1847 pamphlets and had forgiven the abuse of 1814-16. But such forgive- ness should have been met with similar forbearance, and the abuse of Lord EUenborough should have ceased. Un- fortunately, by this time it began to be perceived that there was money in it, and that calumnies if sufficiently repeated might possibly be turned into cash. Lord Dundonald, thinking himself now on the top of the wave, tried to be elected as a representative Peer of Scotland so as to sit in Parliament, but the Scotch Peers would have none of him. During the Eussian war he offered to carry out his secret plans under conditions which the Government of that day thought inadmissible. (They will be found in the Appendix.) He died in October ISGO. Lord Chief Justice EUenborough had died in 1818, so that for forty-two years after the death of the judge Lord Cochrane had had the ear of the public. For a long period Lord Ellenborough's relatives and friends had thought the judge's memory was sufficiently defended by the House of Commons vote of 1816, when that House, by a division of 89 to 0, repudiated the charges made by Lord Cochrane against Lord EUenborough, and thus it was that the collections of historical myths published by various Dundonalds had gradually obtained credence. I PART V LORD CAMPBELL IV. 279. Ibid. If, before writing an account of the ' Trial of Lord Cochrane,' Lord Campbell had taken the trouble to glance at the short- hand notes of the trial, or at the London papers of June 9 and 10, 1814, he would have saved himself from making a number of inexcusable mistakes. At p. 279 he mixes up Lord Cochrane's two uncles, Campbell's, The Hon. Cochrane Johnstone and the Hon. Basil Cochrane. tho'V^hief Even the writer of the ' Autobiography ' is obliged to correct '^^^^^{'^g^l his quotations from Lord Campbell in notes. Lord Campbell says that the uncle and De Berenger spread ' false intelligence that a preliminary treaty of peace had been signed between England and France. Everything succeeded to their wishes ; the intelligence was believed, the Funds rose, and they sold on time-bargains many hundred thousand pounds of 3 per cents, before the truth was discovered.' Now the news that they did spread was that of the defeat and death of Napoleon, and the entry of the Allied Sovereigns into Paris. Furthermore, De Berenger never sold any stock on time-bargains. It was Lord Cochrane, Cochrane Johnstone, and Mr. Butt who did that. But Lord Campbell calls Cochrane Johnstone by the name of Cochrane only, and never mentions Mr. Butt. He speaks of Lord Cochrane as living in the speculative uncle's house at the time of the fraud. This he never did. That uncle had a house in Great Cumberland Street. It was in the other uncle's house, in Basil Cochrane's house in Portman Square, that Lord Cochrane had at one time lived, before he took the house in Green Street, where 239 240 THE GUILT OF LORD COCHRANE IN 1814 De Berenger sought refuge. One of the most important pomts in the evidence against Lord Cochrane was that he had very recently moved into a house of his own, and that De Berenger knew where to find him. Lord Campbell says : Campbell's HowGver when the fraud was detected — partly from a belief ' ^^"^ ° in his complicity, and partly from political spite — he (Lord the Cliief Justices,' Cochrane) was included in the indictment preferred for the conspiracy to defraud the Stock Exchange. ed. 1874, iv. 279. I have never been able to find any evidence of political spite except in Lord Cochrane's accusations. Lord Camp- bell does not appear to be aware that Lord Cochrane held £139,000 of Omnium on the day of the fraud, that De Berenger not only went to Lord Cochrane's house for a disguise, but obtained it, and that when arrested he had in his possession notes, which were the produce of a cheque of Lord Cochrane's. After they had ascertained this, the Stock Exchange could not help prosecuting Lord Cochrane, if they prosecuted anybody. There was more evidence against him than there was against Butt or Cochrane Johnstone. Lord Campbell goes on to say : Ibid. The noble and learned Judge, being himself persuaded to the guilt of all the defendants, used his best endeavours that they should all be convicted. He refused to adjourn the trial at the close of the prosecutor's case at about nine in the evening, when the trial had lasted twelve hours, and the jury as well as the defendant's Counsel were all completely exhausted, and they ah prayed for an adjournment. 9 Mr. Atlay writes : Atiay, That Lord Ellenborough was persuaded of the guilt of the p. 305. defendants is perfectly true, and it is difficult to see who could have helped being so on the evidence adduced in Court. No doubt he summed up strongly against them, but if Lord Camp- beU insinuates that he was guilty of partiality or oppression, that he excluded admissible or included inadmissible evidence, or conducted himself otherwise than with scrupulous fairness, the short-hand notes of the trial are in existence to contradict it. LOBD CAMPBELL NEGLECTS EVIDENCE 241 With regard to the length of trials in those days, and even in our own times, I have treated the subject in Atiay. 8e< another place, and I shall therefore only remark now that p- '*"^- if Lord Campbell had refreshed his memory before writing about the trial, he would have found that Best, Lord Coch- rane's counsel, never asked for an adjournment, that the jury never did so, and that the only person who did so was Park, De Berenger's counsel, who doubtless wished to have time for consultation with others, before commencing a defence based on perjured affidavits. The following day, in summing up, prompted no doubt by • Lives of the conclusion of his own mind, he laid special emphasis on every V^^*^'''^^ circumstance which might raise a suspicion against Lord Cochrane ed- 1874, and elaborately explained away whatever at first sight appeared *^' ' ' favourable to the gallant officer. In consequence the jury found a verdict of Guilty. Mr. Atlay writes : This very serious charge of misdirection can only be founded Atlay, on Lord Campbell's recollections, as he obviously had not re-read P- ^^^• the evidence before writing the account of the trial, if indeed he had ever read it at all. It forms the gist of Lord Cochrane's complaints in his ' Article of Charge,' his ' Letter to Lord Ellen- borough,' and the ' Review of the Case of Lord Cochrane ' ; and as these accusations are repeated in the ' Autobiogi'aphy of a Seaman,' it will be more convenient to deal with the question of the summing up, so far as it has not yet been dealt with, in the following chapter. Next term Lord Cochrane presented himself in Court to move • Lives of for a new trial, but the other defendants convicted along ivith him ^j^S^^fi did not attend. He said truly that he had no power or influence ed. 1874, to obtain their attendance, and urged that his application was "^' founded on circumstances pecidiar to his own case. But Lord Ellenborough woidd not hear him because the other defendants were not present. Such a rule had been before laid down, but it is palpably contrary to the first principles of justice, and it ought immediately to have been reversed. The portion of this paragraph in itahcs fairly represents Atlay. what took place in the Court of King's Bench on June 14, except ''' ^"*" that it leaves the false impression that it was only the Chief B 242 THE GUILT OF LORD COCHRANE IN 1814 Justice and not the whole Court which refused the appHcation. The remainder of it requires both explanation and comment. n it were necessary to show the interposition of the puisne judges on this occasion, evidence would be afforded by the remarks of Mr. Justice Dampier : Atlay, By the rules of Court it cannot be : your lordship has been p. 318. informed of the practice of the Court, and from that practice the Court has no power to depart. . . . Now, on the morning Atlay, of Tuesday, June 14, 1814, Nolan moved for a new trial quotes'^ ° ^^ *^® behalf of John and Louisa Askew, who had been Mauie and convicted, together with one Margaret Hipwood, of an in- ^^ ■ dictment charging them with a conspiracy to indict the prose- cutor for felony. He stated that Margaret Hipwood was not then present, that search had been made after her, but she was not to be found, having left her residence before the trial, at which time she was at large upon her own recognisances. Lord Ellenborough, C.J., interposed and referred to Rex v. Teal, where the Court determined that the presence of all the defen- dants for a conspiracy was necessary in order to move for a new trial, and he observed that the reason clearly was to prevent the most guilty from keeping out of the way and putting forward the least guilty in order to try the result of a motion for a new trial. Le Blanc, J., added that when the Eeport came before the Court in a future stage of this proceeding, if upon the reading of the Report the Court saw any reason to think that justice had not been attained, it was open to them at that time, either by directing a new trial or in any other way, to see that justice should be done. So Nolan took nothing by his motion. Atlay, It was at the close of this very day that Lord Cochrane P' ■ ■ appeared with his motion for a new trial, and had it refused him by the Court on the ground that they must abide by the rules they had laid down, without distinction of persons. So we find that the rule had not only been laid down some years at least before, but had been acted on that very morning. Nor can I agree that it is palpably contrary to the first principles of justice. The reasoning of Lord Ellenborough in both Rex v. Teal and Rex v. Askeiv seems very pertinent. The Court, as Sir Simon Le Blanc said, ' have still the power oj ordering a rehearing if they see that justice has not been done,' but they cannot do it in the same form. A writer in the Law Magazine and Review, to whom I have fi'equently had occasion to refer, says : QUEEN V. CAUDWELL 243 Practically in TeaVs Case, as in Lord Cochrane's, no hardship was suficred through the rule, for the Court in the former case heard the arguments of Counsel on the reading of the Report, and would have then granted a new trial had justice required ; and in Lord Cochrane's case the like oijportunity was offered him to impugn the verdict, and he accepted it and failed. Lord Campbell says that such a rule ought to have been immediately reversed. In November 1851, when sitting in banco with Justices Patteson and Erie, the opportunity of so doing had been afforded him, some years before writing Lord Ellen- borough's life, in the case of the Queen v. Caudivdl, but he had refused to avail himself oi it. This case differed in that there was only one defendant, but Lord Cochrane's case was cited and not disapproved of, except that Lord Campbell said, ' / have Athy, thought it a hardship that one of several defendants could not ''' ^'^^' move unless all were before the Court.' ' Lord Cochrane was thus deprived of all opi^ortunity of ' Lives oi showing that the verdict agaiiist him was wrong.'' justices,' iv. 280. ' How absolutely false this is has been sufficiently demonstrated Atiav, "joth by the preceding paragraph and by the account of what 5^- ■^''^^• took place in the King's Bench on June 20. Although as yet he was generally believed to be guilty, the award of this degrading and infamous punishment {the jnllory) upon a young nobleman, a member of the House of Commons, and a distin- guished naval officer, raised universal sympathy in his favour. With regard to the pillory and to the sentence passed on the whole body of the defendants, critics seem to put aside what is generally accepted as the cardinal principle to be adopted in pass- ing sentence on criminals — namely, that the punishment should be adequate to the crime, and that it should be inflicted without distinction of persons. To urge that a man should be exempt from a form of punishment prescribed by the Legislature for the offence of which he has been found guilty, because he is a ' young nobleman,' or a ' member of the House of Commons,' or ' a distinguished naval officer,' or all three, is an argument that is absolutely fatal to judicial impartiality, and comes with peculiar inappropriateness from the pen of one who at the moment of \vriting held the high office of Chief Justice of the Queen's Bench (Lord Campbell). j The pillory was a relic of a barbarous age, when cruelty p. -mo. b2 Atlay, 244 THE QUILT OF LORD COCHRANE IN 1814 was of the essence of punisliraent, when crime was rife, and constables were few ; and it was most deservedly swept from the Statute Book in the first year of the Queen Victoria's reign. In 1814 it was part of the law of the land, and though in 1816 it was abolished in all cases but one, it remained as a punishment for perjury and subornation of perjury up to 1837. The sentence was imposed, not in hot haste, as is asserted in the ' Autobiography of a Seaman,' but after long deliberation, and not by Lord EUenborough alone, as is so often assumed, but by a Court of four Judges, of whom Justice Bayley, as we have seen, afterwards declared that it was the weighed and matured decision of each and all of them. That Lord EUenborough was not in the habit of inflicting p. 321. the pillory lightly or on his own responsibility appears sufficiently from a speech of his made in the House of Lords on July 5, 1815, when he said : — That he himself had never inflicted the punishment, when alone on circuit, except in one instance, where he had ordered two persons to be put in the pillory for having taken a bribe for assisting in the escape of French prisoners ; an offence which the Legislature soon after made felony punishable by transportation. In the course of the same debate Lord Eldon said there were offences with respect to which it would be unwise to abolish the punishment of the pillory, for instance, cases of perjury and fraud, or cheating, and especially in cases of mixed fraud and perjury. Cases might arise where persons might attempt to defend themselves against a conviction for fraud of which they had been guilty, by perjury or subornation of perjury. There is no reference to any particular case, but the application is sufficiently obvious. Campbell, Lord Campbell, writing forty years after the event, says '^•281. that in consequence of this trial Lord EUenborough was tiou. looked upon coldly in Society and in the House of Lords. ' Having now some misgivings himself as to his conduct in this affair he became very wretched,' and that ' it was said that these matters preyed deeply on Lord Ellenborough's mind and affected his health.' All this is untrue. Lord Campbell had evidently for- gotten Lord Cochrane's attempt to impeach Lord Ellen- borough, and of its defeat in the House of Commons by a majority of 89 votes to 0. Lord EUenborough never had HIS EXTRAORDINABY INACCURACY OF STATEMEXT 245 any doubts about the justice of the verdict or about the propriety of his own conduct. His health, too, did not begin to break down until throe years after the trial. In a note Lord Campbell says that ' Lord Cochrane's rftmphcii. case being re-considered, he was restored to his rank in the I874 Edi- navy.' The latter part of this sentence is true but when, *'°"' where, and by whom, the case was re-considered I have p. 3U2, been utterly unable to find out, and I should be much obliged to the writers who so glibly repeat this state- ment, if they would be kind enough to give me the required information. '\ Had Lord Campbell, when sitting as a judge, ever pp- ^23-*- summed up a case in Court as inaccurately as he simimed up the Cochrane Case in his ' Life of Lord Ellenborough,' I beheve that an address from both Houses would have caused his removal from the Bench. The ' Autobiography ' reprints several passages of the Lives of the Chief Justices, carefully leaving out every word in favour of Lord Ellen- borough without putting any indication to show that passages have been omitted. IVIr. Atlay has reprinted these paragraphs, putting in italics the portions left out in the ' Autobiography.' I should only weary the reader if I went into detailed refutations of other portions of Lord Campbell's account of Lord Ellenborough. Mr. Atlay and myself are not by any means the only persons who have impugned the accuracy of Lord Camp- bell's historical works. For instance, Mr. G. P. Mcdonell has described Lord Campbell's work as being amone the most censurable publications in our literature. . . . ' P"^*- ^^H T • • • r c ^ • •ixj.l Biography, Literary morality m its other form, the love of historical truth „,uier u>n\ and accuracy he hardly understood. No one who has ever <'m"pbeii. followed him to the sources of his information will ever trust him more, for not only was he too hurried and careless to sift the evidence he gathered, but even plain statements of fact are perverted, and his authorities are constantly miscjuoted. Mr. J. B. MuUinger in his ' Introduction to the Study of Enghsh History ' says at p. 229 : 246 THE GUILT OF LORD COCHRANE IN 1S14 As a historical production, the whole work is wanting in the due sense of the obligations imposed by such a task, is disfigured by unblushing plagiarisms, and as the writer approaches his own times by much unscrupulous misrepresentation. Rdition -^Iy. Christie has minutely criticised the ' Life of Lord 147.' Shaftesbury.' La his ' Life of Lord Kenyon,' Lord Campbell writes : ' To spare the feehngs of one so pious [referring to Lord Kenyon's eldest son], I resolve that this ]\Iemoir shall not be published in his life time.' This I look upon as a wdse precaution on the part of Lord Campbell. An eldest son "well acquainted with the details of his father's hfe would be much better quahfied to deal with the wild assertions of Lord Campbell than a grandson. This duty was undertaken by Mr. G. T. Kenyon, w4io re-wrote the life of his grandfather. Lord St. Leonards found it necessary to write a pamphlet in his own defence called ' Misrepresentations in Campbell's " Lives of Lyndhurst and Brougham." I have heard the saying attributed to Lord Brougham : ' That it added a sting to death to know that your hfe would be written by Lord Campbell.' The preface of Sir Theodore Martin's ' Life of Lord Lyndhurst ' contains the following passages : J^^'j^Camp- Many of [Lord Campbell's] misrepresentations have crept of Lynd- into general circulation, and been re-iterated by writers who hurst,' -j^^^ probablv neither the means nor the inclination to institute compare ..."'.. p. 22 with original inquiries It was indispensable, in justice to the f^j Q^ ~ memory of Lord Lyndhurst, to show that Lord Campbell's self- Martin, imposed task had not been discharged with the regard to accuracy misquotes ^'^^ ^^ impartiality which are the first duties of a biographer — Hansard— }^■^^\;, the ucglcct of wliich becomes wholly inexcusable in a man frequently whom his vocatiou in life, and the long exercise of judicial repeats. functions, might have taught to sift his facts, to distrust his own prejudices, and above all to deal out justice, and to maintain truth. The most extraordinary part of Lord Campbell's ' Life of Lord Ellenborough ' is the high praise that he occasionally finds himself constrained to give him. For instance, he commences his biography by saying : IV. 192. LORD CAMPBELL'S PRAL'^E OF LORD ELLEN ROROVd II 247 I now come to a Chief Justice with whom I liave liad many a personal conflict, and from whom for several years I experienced very rough treatment, but for whose memory I entertain the highest respect. He was a man of gigantic intellect ; he had the advantage of the very best education England could bestow ; he was not only a consummate master of his own profession, but well initiated in mathematical science, and one of the best scholars of bis day ; be bad great faults, but they were consistent with the qualities essentially required to enable him to fill high office with applause, ELLENBOROUGH was a real CHIEF — such as Capitals the rising generation of law^'ers may read of and figure to them- "n't ho* "^^ selves in imagination, but.ma)^ never behold to dread or admire, original. At p. 192 he says : At the breaking out of the French Revolution, Law joined Edition, the very respectable body of alarmist Whigs who went over to the ^^' Government, he being actuated, I believe like most of them, by a not unreasonable dread of democratical ascendency, rather than by any longing for official advancement. However he refused offers of a seat in Parliament. At p. 214 he says : Not only had he the incorruptibility common to all English Edition Judges, but he was inspired by a strong passion for justice,- and 214.' '^' he could undergo any degree of labour in performing what he considered his duty. At p. 255 we find : Lord Ellenborough regularly attended the trial of Lord Melville, and as to the 2nd, 3rd, 5th, 6th, 7th, and 8th Articles, laying his hand upon his breast, he said with great emphasis and solemnity, ' Guilty, upon my honour.' Almost all good Tories said ' Not Guilty,' and the inde- pendent course taken by Lord Ellenborough very much raised him in public estimation. At p. 253 he mentions : While the Talents remained in office the only Government Edition, measure on which the Lord Chief Justice spoke in the House of ^^-^ j^ Lords was the bill for abolishing the Slave Trade. He spoke in support of the bill. 248 THE QUILT OF LORD COCHRANE IN 1814 At p. 292 he says : Edition, This character has been thus drawn by one who knew him 292.' well. I never knew any man except the Duke of Wellington who was so innately just. He thoroughly loved justice — strict justice, perhaps, but still justice. He was also thoroughly devoted to the performance of his duty. I have heard him say that no private consideration could absolve a man from the execution of public duty, — that should the person dearest to him in the world die, he would go into court next day, if physically capable of doing so. . . . Men bear in willing recollec- tion his unspotted integrity, his sound learning, his vigorous intellect, and his manly intrepidity in discharge of his duty. . PART VI THE EARP-JACKSON-DUNDONALD LITERATURE CHAPTER I * THE AUTOBIOGRAPHY OF A SEAMAN ' In 1857 the ' Narrative of Services in the Liberation of Chih, Peru, and Brazil' was pubHshed under the name of Dun- donald. It is the first of a series of Earp-Jackson-Dundonald writings, which were written by a certain Mr. Earp, regardless of facts, dates, and documents, for the purpose of supporting Lord Dundonald's money claims, of which Mr. Earp himself was to receive a substantial percentage if his writings met with the desired success. These books have been a fraud on the boyhood of England for over fifty years. I am glad, how^ever, to reheve the memory of Lord Dundonald, of sorae portion of the discredit attaching to their pubhcation, for it was shown in 1862 that Lord Dundonald's memory had begun to fail seriously at the time they were published, JJ.jjJJfJ'gP'' and that Mr. Earp, in his evidence in 1862 before the Lords' Committee for Privileges, declared himself to be the writer of the works in question. The rambling way in which they are written makes it very difficult to deal with the events mentioned in their chronological, or any other, order. In his will Lord Dundonald not only described ^Ir. Earp as his ' friend and Hterary coadjutor,' but left him ten per cent, of all the money that he considered was due to him by the British, Chilian, and Peruvian Governments. 249 250 THE GUILT OF LORD COCHRANE IN 1814 It also declared that to his ' literary exertions would be mainly owing any recovery of the said sums.' And as Lord Dundonald appears to have left very httle property, it seems to be more than probable that the Earp clauses in the will were placed there for the purpose of carrying out an arrangement made during the lifetime of both parties. The preface of the ' Narrative of Services ' concludes as follows :^ At my advanced age, such a task as that now partially executed, would, perhaps, have presented insuperable difficulties, but for the assistance rendered me by Mr. Earp, who, with great perseverance, has unravelled — what, in the lapse of time, had become the almost inextricable confusion of my papers. That, however, has, with his assistance, been accomplished in such a Preface, ^^y g^g ^q })ase upon Original documents every incident contained in the work — the more important of these documents being adduced, so as to admit of neither doubt nor question. The same course will be pursued in the forthcoming English portion of my career, with a result, I trust, equally clear and convincing. Whole pages of the ' Narrative of Services ' consist of quotations from a journal and accounts kept by William Jackson, and I am not surprised to find Lord Cochrane involved in pecuniary and other squabbles whenever that name is relied upon for ' original documents ' which ' admit of neither doubt nor question.' In 1859 the fkst volume of the so-called ' Autobiography of a Seaman ' appeared. It was followed by a second volume in September 1860, a few weeks before Lord Dundonald's death. Lord Dundonald's death was in one way most opportune for his reputation. Had he lived six months longer he would have been called to account for the innumerable historical inaccuracies in that volume, not only in con- nection with his trial, but with reference to Basque Koads and other matters. As it was, his death checked controversy for a time, and he had the full benefit of the temporary feeling, which is summed up in the words, 'De mortuis nil nisi bonum.' He was buried in Westminster Abbey. Some persons have considered the fact of his being buried there as a proof MR. EARP THE AUTHOR OF THE ' ArTOBlOGRAl'll V ' 251 of his innocence. That interment, however, proves nothinj::; except the creduhty of a Dean, who beheved in llio inilli- fuhiess of the ' Autobiography of a Seaman.' The ' Autobiography ' quotes some of the reports of the ■ Autobio- Commissioners appointed to enquire into naval abuses, as ?.'^i57-8. proofs of the shameful manner that the country was cheated by naval contractors and others. Of course, the inference that the ' Autobiography ' wishes to be drawn is that all the people connected with the trial had an interest in these abuses. What the Stock Exchange could have to do with them is hard to say^. The writer omits to mention that Ewan Law, Lord 'A Naval Ellenborough's brother, was one of these Commissioners, and tife ow'" that the 'warm support' that Lord Ellenborough gave ^^JY/^^'^^^ the bill had a good deal to do with its passing. Ewan Law did more for naval reform than ever Lord Cochrane did, though he made less noise about it. On July 24, 1862, Mr. Earp was called as a witness in the Dundonald peerage case, and was duly sworn. I give some extracts from his evidence. Q. Air. Fleming. — Did you afford liim (Lord Dundonald) Evidence any assistance in the preparation of the book called his j^iy 24, ' Memoirs ' ? '^'''f- ]). 8.5. A. Mr. Earp.—Yefi. _ ('...n.nitteo Q. Had you in consequence of that had confidential com- of I'livi- munications with the late Earl ? ''*^"''' A. On every subject. Q. I believe Lord Cochrane gave you a good deal of informa- tion regarding the whole of his career ? A. Everything, he concealed nothing: otherwise I would not have written his Memoirs in the way they were done. Q. Did he dictate .the facts to you which you put into the memoir ? A. Yes, lie frequently told me the facts, and those facts I verified by documents, and I found them always correct. , In reply to Lord Clichnsjord he said : A. I should state in explanation that my general practice in writing that book was to write it from his documents, not from his words, because I frequently found his memory fail ui hite 252 THE GUILT OF LORD COCHRANE IN 1814 years. I wrote it from his documents, and in general he made very little if any alteration, he was quite content with it. Q. Viscount Hutchinson. — Did you derive that informa- tion from Lord Dundonald's documents, or from his verbal communication ? A. From his verbal communication. Q. You have already stated that at the time when you were obtaining this information from him for the purpose of writing this memoir, his memory had begun to fail ? A. His memory had begun to fail very seriously, so much so that I took down many things from his lips, but I made it a practice never to insert anything unless I had documents to verify it, and by that means I found many of his statements not erroneous from principle but erroneous from recollection. Q. This statement in respect of Mr. Basil Cochrane's marriage was not supported by any documentary evidence ? A. No document whatever. Q. Then how came it that you left it in the Memoir ? A. By Lord Dundonald's own command ; he ordered that the chapter should be left precisely as he left it. He scratched out three or four pages and he inserted other words, and the chapter was printed precisely as he left it, so particular was he upon this point, that he requested the proof sheet to be returned to him with the corrections. The chapter in the ' Autobiography ' dealing with Lord Cochrane's marriage also professes to give an account of the circumstances that led up to the marriage of his uncle, the Hon. Basil Cochrane. Now the case laid before the Committee of Privileges in 1861 was that Lord Cochrane left London on August 6, 1812, was married at Annan on the 8th, left his wife at Annan, and returned to town in time to be at his uncle's wedding on the 13th. The above dates contradict the story of these marriages as told in the ' Autobiography.' Part of this chapter is devoted to attacks on the conduct of the Hon. Basil Cochrane. His grand-nephew the twelfth Earl has reprinted them. Whether he has found any evidence to support them outside the ' Autobiography ' 1 do not know, but they are, I think, inconsistent with the fact that eighteen months after these marriages took place 31 R. EARFS RELIANCE ON MR. JACKSON FOR FACTS 253 he was residing in his uncle's house, and thai four years after they had taken place, in July 1816, the Hon. Basil Cocln-ane was present at the trial of Davidson, acting in his nephew's interests. In another part of the ' Autobiography ' Mr. Basil ' •\"»"i';o- Cochrane is described as a ' highly honourable man ' ; and ii.'327'n. I think that 1 am only doing justice to his memory when I mention that in my researches I have discovered nothing that would lead me to think of him otherwise. P. 88. Re-examined by Mr. Fleming. Q. As to that particular passage to which my learned friend has drawn your attention by whom was that written originally ? A. That I cannot tell you whether that is one of Lord Dun- donald's interpolations or whether I wrote it myself ; but I think tlie probability is that I myself wrote it, in consequence of what he had said before. Q. Were those conversations with Lord Dundonald casual conversations from time to time ? A. No, they were not casual, our communications were daily — I went to his house or he came to my house ; our communications were daily and always upon the point next to be treated in the book. They were not casual but studied between us. Q. Then the whole memoir is subject to those observations ? A. The whole memoir is subject to those observations. The process was, that anything that he might recollect, or anything that I knew, I took down from him taking care first to verify it before it went to the public. The following extracts from the correspondence between Mr. Earp and Mr. Jackson show how much the former was driven to rely upon the memory of Lord Cochrane's unscrupulous secretary for a great deal of his information : — Earp to Jackson. January 20, 1859. My dear Sir, — I have to-day been looking over your excellent poem the ' Gambyriad,' of which though the subject is somewhat out of date, the notes appended to it are of importance. From the printed notes I have an idea that you may possess other books or papers relating to the earlier portion of his Lordship's 254 THE GUILT OF LORD COCHRANE IN 1814 Letter B 3. p. 39 of ' William Jackson's evidence,' taken July 30, 1862. career, and if so, their loan would be very acceptable, since a very large portion of his Lordship's papers is lost, left no doubt somewhere or other where his papers have been deposited ; but where he has no recollection. If you can assist me in this way or in any recollections of his early career, which his lordship has no doubt recounted to you over and over again, you would be rendering both to his Lordship and myself a great service, or if you have at any time made notes of such conversations, they would add much to the interest of the first part of the English work for which the materials are not so abundant as I could desire. If you see all the papers you will be gratified by the extensive and favourable notice which has been taken of the ' Chili ' and ' Brazil ' and I have every expectation they will turn out for good. If the Brazilians can read The Times criticism and not do justice to every officer, they must be a shameless set. Mr. Jackson was one of the officers referred to above. In his evidence he says that he held the rank of major in the Brazihan service, when acting as secretary and paymaster on board Lord Cochrane's ship. Earp to Jackson. April 21, 1860. You mistake about any interruption to the second volume, my fear is that it will come out too soon for its reputation. It Letter B. 4. would give me pleasure to have six months more to do it in, .son''s ilt' instead of not quite two. Hurry is a fatal mistake in book- deiice,' making, if a book is intended to live after its author. I don't ^' ■ know whether you have come across anything else between 1812 and 1818 that may be useful. I am sadly deficient in materials for that period. Letter B. 6. ' VV. Jack- son's evi- dence,' p. 39. May 3, 18G0. I am very much obliged for the parcels you have sent me. They are of great use, as bringing up matters, which Lord Dun- donald's memory no longer retains and of which his sons have only imperfect remembrance. Even the merest scrap containing his name may throw light upon what would otherwise be obscure, as in several instances the case from what you have kindly sent. The next volume will go to 1818, the period when he went to Chili. Anything else you may find will be truly acceptable. WILLIAM JACKSON'S ATTEMPT AT BLACKMAIL 255 May 26, 18G0. * * * I have told Lis Lordship of the letters and extracts you have so kindly sent, and he is much gratified, telling me to ask you for any scrap which may throw light on matters from 1814 to 1818. After Lord Dicndonald's death. February 12, 1861. The next volume is getting on but slowly, as there are many interruptions of one kind or other. It will not be ready before midsummer. Lord Dundonald has left a will, but as it is not proved, I am not at liberty to Wntion its contents. It is however, at present a will with nothing to bequeath, but some day a good sum may be got from the Brazilian and perhaps Chilian Govern- ments ; that is by working for it, but there is so much dissension amongst some of the family, that although I am interested in the matter, I care very little about troubling myself with it. Anything you may recollect about him from 1814 to 1818 will be very acceptable. Page 41, aw undated letter. I have no doubt Bentley is very much annoyed at the delay, but as a feeling for publisher's annoyances is not among my weaknesses, he only worries himself and affords me considerable amusement thereby. My object is to clear Lord Dundonald's character, and in comparison with that, I do not think Mr. Bentley's annoyance worth the slightest consideration. * * * Any suggestions from you will be valuable as all your suggestions have been. Jackson to Ear p. April 9, 1861. As my news from Eio de Janeiro received this morning is very Letter A. 11, bad, namely that there is no appearance of my prize claims being '^^^^;^ ^*^_''- any nearer to a conclusion than they were when I last heard six ticnco/ months ago, and as I expect my mortgagee will be demanding •'• his year's interest in a few days, I must try to raise money on the letters of the late Earl. I solicit your opinion on the money value of a thousand autogi-aph letters of that eminent man through a course of fifty years from 1811 to 1860. I think they would be cheap at a hundred pounds. 256 THE GUILT OF LORD COCHRANE IN 1814 ' W. Jack- son's evi- dence,' p. 42. Letter B. 1. ' W. Jackson's evidence,' p. 37. Letter A. 9. ' W. Jack- son's evi- dence,' p. 30. P. 42. Mr. Earp replied to this, saying tliat : I should for my own interest urge the present Earl to get an injunction restraining their sale. Jackson's threat produced some effect, for the eleventh Earl, on April 25, wrote to him : I enclose a check on my banker for £25, and am sorry that the very heavy payments I have been called on to make since the death of my poor father does not enable me to do more for so old and valued a friend of his. Better days may come, and if I obtain a pension from Govern- ment for my father's services I will do more for you. I beg you will be good enough to place your seal on the box of papers and direct it to be forwarded by fast train. Jackson afterwards declared that he considered this payment to be a part of his legacy, for Lord Dundonald had left the sum of £100 to his ' steady friend and former secretary.' That he again endeavoured to extract money from the eleventh Earl is shown by the following letter, in wdiich he gives more than a broad hint that the sort of evidence he will give before the Lords' Committee for Privileges will largely depend upon the remittances he may receive. Jackson to Earp. April 21, 1862. I was greatly disappointed on receiving your letter of the 16th inst., which being sealed with wax and bearing two postage stamps, I had no doubt contained a valuable enclosure, especially as I had reminded both his Lordship and yourself that I am under the same necessity this year as I was last, and must either pay the interest of my mortgage within a very short period or be ejected from my house and land, and had hinted in my letter to you of the 11th instant that I hope his Lordship would be able to relieve me, if not by any remaining means of his own yet by the aid of his wealthy father-in-law. It must be obvious to you that I cannot apply my mind to collecting and giving information regarding events which occurred between 40 and 50 years ago while in imminent danger of ejectment. Besides I have no remaining diary of that period, having sent you from time to time whatever information I possessed ' W.Jack- son's evi- MR. JACKSON'S WRITINGS FROM 1814 TO 1S60 257 both from memory and recorded facts, and last year, in return for his Lordship's remittance, I sent him all the letters I had received from the late Earl, and all the documents which remained in my possession relating to his affairs. I continue to speak of the late Earl's eldest son as the present Earl of Dundonald, but I must confess I have my doubts. I hear that . . . claims the Peerage with what effect time will show. He then appears to have turned his attention to the other claimant, but he denied having received money from him until ho was confronted with his own handwriting of May 3, 1862, which proved that he had on that day received two halves of £10 notes from him through a solicitor's office. '^^"°®' Then he declared that he looked upon this £20 as being also a part of his legacy.^ Jackson's evidence w-as given on July 30 and 31, 1862. Lord Brougham said of him : ' The evidence of that witness, I believe, has not raised a doubt in the minds of any of the noble and learned lords who have heard the case.' Sii' Fitzroy Kelly, who appeared for the eleventh Earl, said of Mr. Jackson : ' He has actually received what I do not hesitate to call a bribe of £20 to give this evidence.^ Lady Dundonald, Lord Cochrane' s widow, when on oath 'Evidence,' before the Lords Committee for Privileges, said of hiin : ' I have always despised the mem, and look upon him as the greatest enemy my husband had in life, and the ruin to his purse and character. Alas ! Lord Cochrane had much more confidence in him than he deserved.' Yet this creature's writings from 1814 to 1860 are the foundation stones of the public belief in Lord EllenborougK s partiality, in Lord Cochrane's innocence, and of the most important paragraphs of the ' Autobiography of a Seaman ' and of other books that are based upon it. Why should this man be believed in one case and not in the other ? The eleventh Earl of Dundonald, in his preface to the ' Life of Lord Dundonald,' published in 1869, makes the following allusion to Mr. Earp in describing the materials from which his work (' Life of Lord Dundonald ') was compiled : ^ * He may have received more, but £20 is all that can be proved. p. 20. .^J- 258 THE GUILT OF LORD COCHRANE IN 1814 My father's papers were, at the time of his death in the hands of a gentleman who had assisted him in the preparation of his ' Autobiography ' and to this gentleman was entrusted the completion of the work. Illness and other occupations, however, interfered, and after a lapse of about two years he died, leaving the papers of which no use had been made by him, to fall into the hands of others. Only after long delay and considerable trouble and expense, was I able to recover them and realise my long cherished purpose. So that the ' Life of Lord Dundonald,' as published by the eleventh Earl, resembles its predecessors in being principally based on Earp's ten per cent, on documents written or supplied by William Jackson, and on Lord Dundonald's failing memory. The object of the work was evidently to manufacture further evidence in support of pecuniary claims. Li 1890 the grandson republished a compressed edition of the ' Autobiography of a Seaman,' with a sequel. In the iDreface to the sequel he says : ' My plan has been to use my grandfather's own words as much as possible.' He further says that the sequel is largely com- posed from the Chili, Peru, and Brazil volumes published in 1859, and from the ' Life of Dundonald ' I have just alluded to. He wrote : ^ In order to keep the present work within a compact volume, I have ventured to omit from the ' Autobiography ' such portions and many appendices which I thought might be spared without impairing the value of the book for general reading as the earlier editions still remain for reference, if required. ^ Now, without wishing to underrate any of the wonder- ful exploits which Lord Cochrane actually performed, I must point out that all those exploits which depend on the Earp- Jackson-Dundonald writings, or on works derived there- from, require corroboration. When reading an account of a gallant achievement or of a skilful device it is unpleasant to have to think : ' How much of this is true ? How much must I deduct for Earp's ten per cent. ? ' There is, however, a residue of unquestioned facts sufficient to prove that he was a most skilful seaman, in some respects a nautical genius, capable of both planning AUTOBIOQEAPHICAL FABLES 259 and leading an attack. He relied largely on surprise, and generally attacked the enemy in a manner that he did not expect. With a few exceptions I have left to others the task of analysing the various accounts of the warlike feats attri- buted to him,, and shall only deal with the Autobiographical assertions which are more or less connected with the trial. In February 1861 the Law Magazine published an article on Lord Cochrane's trial based on the ' Autobiography.' No. xx. It accepted the theory of Lord Cochrane's innocence, J*^. condemned the Court of \ King's Bench for passing too severe a sentence, and it used far stronger language than Mr. Atlay has done about Lord Campbell's historical methods. The writer considered that a miscarriage of justice had taken place in consequence of the carelessness of Lord Cochrane's counsel and solicitors. He also accepted as true the charge made against Mr. Gurney. In their May issue the Laio Magazine unreservedly No. xxi. retracted all their charges against Mr. Gurney and Messrs. f^^. Farrer. They pubhshed the letter Mr. Eussell Gurney had written to them. It will be found at p. 300 of this work. The affidavit of June 14, referred to by IVIr. Eussell Gurney, is actually printed in the ' Autobiography ' itself, and affords a striking illustration of the manner in whch Mr. Earp verified his facts by documents. In the grandson's edition of 1890 this accusation is repeated at p. 394. I will here notice another circumstance, viz., that Mr. Gurney to whom I had unreservedly communicated every circumstance connected with my private affairs, as well as those connected with the visit of De Berenger, was afterwards chosen by Mr. La vie, solicitor to the committee, as the leading counsel for the Stock Exchange at the subsequent trial against me?- I simply relate the fact without comment.^ ' Evidence, p. 87. This statement is flatly contradicted by Lord Cochrane's affidavit. ^ Italics in original. * See also Autobiography, ii. 367. See also eleventh Earl's edition, p. 394. ^''"'V'^^' g3 p. 566. 2G0 THE OUILT OF LORD COCHRANE IN 1814 Mr. Gurney had himself rephed to this charge when made in Court at Lord Cochrane's trial for escape (see p. 194) ; and Mr. Atlaj' has fully dealt with it at pp. 58, 275, 339. As many of the accusations contained in the ' Auto- biography ' have appeared in previous wiitings or speeches, I have already refuted them. It will therefore be sufficient to mention them and the pages wherein their refutation will ' Autohio- be found. For instance, at p. 334 he complains that a grapij, 11. gg^,|^,-^j^^ letter which he had written to Mr. Croker could not be found, and I have already given my reasons for my doubts as to whether such a letter was ever written. At p. 336. p. 336 we are told that Lord Cochrane could have easily concealed De Berenger on board the Toniiant. At p. 151 I have pointed out how exceedingly unlikely it was for such concealment to be successful. De Berenger was not a man who would have contentedly lived in a cask, p. 338. As to Lord Coclu-ane's claim (p. 338) to have given volun- tarily ' the only information upon which the subsequent trial was based,' by disclosing the name of De Berenger, .vtpra, 78. I refer my readers to Mr. Kussell Gurney's letter, to the infra, sccoud report of the Stock Exchange Committee, and to p- ^'•-- what I have said about Davis and his affidavit. At p. 397, grandson's 1890 edition, a letter of De Berenger's, dated April 27, 1814, is quoted, declaring that Lord Cochrane's account of his visit to him ' was correctly detailed in your affidavit.' I cannot see how this certificate, given previous to the trial, is of any use to Lord Cochrane, especially as De Berenger gave another version of it in ' The Noble Stockjobber.' Then he says that De Berenger had communications with the Government and the Stock Exchange before the trial for the purpose of implicating Lord Cochrane. The only proof attempted to be brought forward is an inference from another letter of De Berenger's, dated July 19, 1814, written in the King's Bench prison, in which he says : ' Autohio- That since my confinement liere I have neither written or ^'^'Tos ' otherwise applied directly or indirectly to any of the ofl&ces of the Government for the purpose of disclosure. MORE AUTOBIOGRAPHICAL FABLES 201 This is considered as proof that he did so before the trial. However, no corroboration is olTered. I look upon Lord Cochrane and De Berenger as being equally untruthful. At p. 398 an important admission is made. Hef erring (iranison's to these De Berenger letters, the writer says : ilmon I do not blame the judge for not taking these matters into • Antohio- account for, confident in my entire innocence, I could not see §?1''''^'' "' their importance and bearing and did not even communicate them to my solicitor until too late. The writer goes on to'say that ' this unjustifiable prose- p. 343. cution was carried out '• from a desire in more influential quarters to silence, if possible, an obnoxious political ad- versary." ' Now, though this assertion has been frequently repeated, I have never been able to find one atom of pi-oof or even corroboration of it. Brougham's letter (July 12, 1814 ; Atlay, p. 206) shows that he was no longer wanted by the electors of Westminster, and he was under orders for the seat of war. Yet he preferred to waste his time in speculating on the Stock Exchange instead of looking after the refit o the Tonnant. We are told that Lord Cochrane only became p. 345. aware that the Mr. La vie who had been employed at the Gambler trial was also selected to act as solicitor for the Stock Exchange prosecution after the trial had taken place. Had he known it sooner he would ' have seen the necessity of meeting every accusation with the most deliberate caution.' Now this is scarcely credible. Lavie was called as a Atia.v. witness, and then stated that he was attorney for the prosecu- •544/^'*"" tion. Besides, Cochrane Johnstone had attended at the striking of the special jury, and must have known who was appearing on the other side. The newspapers state that Mr. Lavie attended on behalf of the Stock Exchange, with the witnesses, before the Grand Jury on April 27. Is it possible to believe that when he had been superseded from the command of his ship, and even after a true bill had been found against him, he took so little interest in the charges that had been made against him that he did not 262 THE GUILT OF LORD COCHRANE IN 1814 even look at the daily papers, or make a single enquiry in connection with the proceedings before the Grand Jury ? Of course, Mr. La vie is abused ; but that was a misfortune which occurred to most of those who came in contact with Lord Cochrane. I cannot, however, discover that he did anything more or less than what was consistent with his « Autobio- duty. Then we are told : ' That there was collusion between graphy,' ii. ^ j^-gj^ official at the Admiralty and the Committee of the Stock Exchange on this point I do not hesitate one moment to assert.' Now though I have been unable to find a particle of evidence in support of this assertion, I suspect that Croker was the person he meant to incriminate. Then the evidence of Crane and of the colour of the coat are discussed.-*- I have put the whole of Crane's evidence in the appendix. p. 432. Curiouslv enough. Lord Cochrane's own written words, ' a green coat or a coat with a green collar,' gave Serjeant Best full permission to admit a coat of any colour he chose. p. 352. At pp. 405 and 406 the grandson tells us that the judge revised the report of the trial by insertmg words in it, because The Times verbatim report does not contain these words. At p. 89 in Lord Cochrane's ' Letter to Lord Ellenborough,' Lord Cochrane had fully withdrawn this accusation. He wrote, or allowed to be written in his name : ' 1 freely acquit your lordship of any subsequent inter- polation.' Too many people who had memories were then in existence for Lord Cochrane to be able to continue to press this charge. But forty-five years afterwards, when most of them were dead, it was considered safe to revive it. As regards The Times verbatim report, j\Ir. Atlay has reprinted the whole of it, speeches, evidence, and summing- up. Yet it only occupies forty-three pages in his book, while the Chief Justice's summing-up alone, which he also reprinted from the shorthand report, occupies no less than ^ I have already pointed out that if he had prosecuted Crane for perjury, he could have put his servants and his other affidavit makers into the -n-itness-box and gone there himself. COMPRESSED REPORT OF TRIAL IN ' THE TIMES ' 263 sixty-two pages of the same sized typo. So much for The Times verhatim report ! And what is more, The Times report compresses the evidence to such a degree, that it does not even mention the Crane portmanteau — ' big enough to wrap a coat in.' That is a detail left to the much abused revised report. Again, the writer tries to leave the impression that the prosecution got up the ' revised report.' Now, in 1S14, 1815, 1816, it is clear that it is the summing-up alone, and not the report of the evidence, that is attacked. The Times report of li^ie summing-up occupies two and a half pages in Mr. Atlay's book, and, as I have already said, the report of the summing-up in the shorthand notes occupies no less than sixty-two. That some words which appear in the report are omitted in the compressed report of The Times is therefore an argument that carries no weight with it whatever. Then we are told that there was no evidence that De Berenger pulled off his red uniform, star, and medal in Lord Cochrane's presence. Now anyone who had read Lord Cochrane's own affidavit of March 11 would at once gather the contrary from it. And as regards the star and medal, what are matters of conjecture to us were certainties to the Judge, counsel, and jury. They had the actual clothes and the facsimiles before them. If the star was sewn on, it probably remained on. And though the star was picked up in two pieces, and sewn together afterwards, it is quite possible that the pieces may still have been attached (o the cloth under it when picked up. Pictures of the period show that, at that time, ornamental stars were generally broad and flat. If Lord Ellenborough had made a direct statement of facts not proved, surely counsel of the stamp of Brougham, Scarlett, and Best would have intervened either in Court or afterwards. I have already mentioned at p. 163 the seven affidavits which impugn the character and evidence of Crane. By the simple process of omitting the dates they are now used for the purpose of making an additional attack on Lord Ellenborough. 264 THE GUILT OF LORD COCHRANE IN 1814 The grandson's edition (p. 407) contains the following : — ' Autobio- After my conviction liowever, it became necessary to seek grap y, ii. additional evidence to support an appeal from the conviction, or an application for a new trial as against myself. Lord Ellenborough refused the application, because all the persons tried were not present to concur in it, though the law gave me no power to enforce then- attendance. The evidence on which it was grounded however is none the less conclusive because Lord Ellenborough and his colleagues declined to receive it or even to hear it ! but in place of so doing at once delivered their outrageous sentence against me. This appeal was grounded on the evidence of several respectable tradesmen residing in the neighbourhood of Crane the hackney coachman. 1890 Then come a summary of these seven affidavits, and Pp!409,'4io. ^'^® writer goes on to say : ' Autobio- Such was a portion only of the facts which I was prepared %hi. ^' " ^^^^^ ^^ ^^y appeal to Lord Ellenborough and his colleagues. But as before said, the same judge refused to listen to the appeal, not on the ground of my having no evidence to rebut the perjury of Crane, but because all the persons convicted were not present in Court to join in the appeal * * * I held in my hand the most reliable evidence that from the money he had been paid for his perjury he had bought ' a new coach, horses, and harness.' None of these circumstances were allowed to be received in Court. Now none of these affidavits were in existence iclien Lord Cochrane appeared before Lord Ellenborougli. Five of them were sworn to on July 22, two of them on August 9, and Lord Cochrane's last appearance before the Court of King's Bench was on June 21, when sentence was passed. And, stra7ige to say, when he was before Lord Ellenborough lie never mentioned the name of Crane. I have already expressed my opinion that if Lord Coch- rane had himself believed these seven men's affidavits he would have put the makers of them and his four servants — Davis, Dewman, Turpin, and Busk — and himself into the witness box, and have prosecuted Crane for perjury. His not daring to do so is one of the strongest proofs of his guilt. THE WITNESS CRANE 265 These affidavits were reall}'- only meant for the illiterate portion of the Westminster electorate. After a lapse of forty-tive years, it was thought that by disregarding their dates they might be used to calumniate Lord Ellenborough, and be made a basis for money claims. Still Crane, as I have already said, after all was Lord Cochrane 's best witness, as he was the only one who swore in Court that he had a portmanteau big enough to wrap a coat in, out of the dozen or more witnesses, including Lord Cochrane's own servants. Lord Cochrane, too, one would have thought, mu^t have seen this portmanteau, yet he omitted to mention it in his affidavit. At p. 411 (1890 ed.) we are told that William Crane was -Autobio- under suspension as a hackney coachman for cruelty to his f^^^^ ■^'' "' horses in June 1814, and that in 1830 he was found guilty of p. 362. theft, and at p. 412 (1890 ed.) we are informed that ' the facts relative to his character, even to his being under conviction whilst giving his evidence, Lord Ellenborough refused to hear, as all the parties convicted were not present in Court.' Now if Lord Cochrane knew anything of Crane's cruelty to his horses, or of anything else against Crane when he was allowed to speak without interruption before Lord Ellen- borough on the 20th, he certainlv did not mention it in Court. I must again repeat that the objection to hearing Lord • Trial,' Cochrane because the other parties were not in Court, only ^^j^"^'"^' affected the proceedings on June 14, and not those of the 20th. He was in the position of a man who, ruled out of order at an early stage of a public meeting, is listened to with attention at a later period. ' I held in my hand most reliable evidence that from ' Autobio- the money he had been paid for his per] my, he had bought 359. a new coach, horses, harness.' It is a pity that Lord Cochrane did not put the affidavit maker King, on whom he relied for this evidence, into the witness box. He could have done so had he prosecuted Crane. King would then have been confronted with some of the Committee of the Stock'Exchange, who had only paid Crane £17, including the hire of his coach. ' Two horses, 266 THE GUILT OF LORD COCHRANE IN 1814 and a new coach and harness, of the best description ' would certainly have been cheap at £17, and King's cross- examination would have been interesting. The object of the wi'iter is evidently to induce the public to believe that De Berenger's visit was the only evidence against Lord Cochrane. With those who have read the trial, such tactics can be of no avail, but the vast majoritj-, whose knowledge of these transactions is derived solely from the ' Autobiography,' Atlay, would aiise from its perusal entirely ignorant of the close business ^' ' relations between Lord Cochrane, Cochrane Johnstone and Butt, of the fact that the notes found on Lord Cochrane were traced to tliem or that Lord Cochrane had enjoyed the right of addressing the Court of King's Bench to obtain a new trial. '■o The following note appears at p. 408 of the grandson's edition : ' The post boy admitted on the trial that he had several previous examinations, and that he had received £52 for his evidence ! ' ^ The grandson does not appear to have read the trial he was writing about. Had he done so he would have seen that Shilling said : ' I had received five pounds from the gentlemen of the Stock Exchange towards my expenses.' The Times report makes no mention of any money having been paid to Shihing. At p. 417 of the grandson's edition we are further told that the post boy admitted ' that previous to the trial he had received £52 ! ! ! ^ At p. 415 in the grandson's edition we find — 'jAutobio- Of the vindictiveness with which I was pursued there can grap y, ii. -^^ ^^ better proof than that the other parties convicted on clear evidence were let off with imprisonment and half the fine inflicted on myself and Mr. Butt, whilst we who had nothing to do with the matter, were fined £1,000 and in addition sentenced to the barbarous punishment of the pillory. I advisedly say ' we ' for I will here put on record my conscientious belief that Mr. Butt had no more to do with the hoax, than myself. ^ Italics in original. 2 Italics and exclamation marks in the original. CAMPBELUS ACCOUNT OF WATSON AND HONE TRIALS 267 Now De Berenger was one of those includod in the pillory portion of the sentence, and I have little douht that that punishment was reserved for those who had aggravated their guilt by a defence involving perjury and subornation of perjui-y. At p. 412 in the grandson's edition we find — So little apparent danger was there of the possibility of my ' Antoi.io- being declared impHcated in this hoax, that even my solicitors 3621' '^' had not taken the precaution of summoning my servants to give evidence. Now the readers of ^e ' Autobiography ' are told nothing about the servant's affidavits having appeared in the Cochrane-Butt pamphlet, styled ' Calumnious Aspersions,' nor of the notice taken of them in the press of the period, previous to the trial. I have already shown what care and consideration was given to the question as to whether the servants should be examined or not. The writer of the ' Autobiography ' then quotes Lord iso" f-'ij- Campbell's account of the trials of Leigh Hunt for libel, '" '''" Watson for high treason, and Hone for blasphemy, at all of which Lord Ellenborough presided. It takes far longer to refute and disprove an accusation than to make it, and as I cannot double the size of this book for the purpose of doing so, I most unhesitatingly appeal from these Campbell-Dundonald quotations to the shorthand notes of these trials. Some points, however, can be briefly dealt with. For instance, in the Watson trial the ' Autobiogi-aphy ' quotes Lord Campbell as saying — He asked them (the jury) whether they would take some Itnlics in refreshment before they left the box when the foreman in a tone i,iogniph>°' which made the Lord Chief Justice's countenance visibly collapse •Autoi.io- said ' My Lord we shall not be long.' Accordingly after going K^»i'''y.' ii- through the form of withdrawing and consulting together, they ^;,ij,i„„. returned and pronounced their verdict to which they had made I8yu,|).42<». up their minds — Not guilty. I have given above the whole of the only quotation to 268 THE GUILT OF LORD COCHRANE IN 1814 Shorthand be foiiiid ill tliG ' Autobioffraphv ' concerning this trial, notes by Ol-J O Gurney of But I find that the shorthand notes say that the jury par- james ° took of refreshment in Court, retired at five o'clock, and n 5*71"'' i-'etarned into Court at twenty-five minutes before seven. 1817. An absence of one hour and thirty-five minutes can scarcely be considered a form of retiring. James Watson was an associate of Thistlewood, who was afterwards tried and executed for the Cato Street conspiracy, which was a plot to murder all the Cabinet Ministers while at dinner. Watson had severed his defence from that of Thistlewood, and he was in consequence tried separately. Had Watson been found guilty when tried before Lord Ellenborough, Thistlewood would have been tried next, and if he had been found guilty also, no innocent lives would have been sacrificed in the fight that ensued, when his gang of murderers were eventually captured or shot. When Watson was arrested, a paper was found on him headed Committ. P. S. (Committee of Public Safet}^). i. 367. Among the names on it were Sir P. Burdett, Lord Cochrane, Mr. A. Thistlewood, Mr. Watson, and others. Lord Ellen- ii. 484. borough remarked in his summing-up ' This one should suppose was an intended committee, or more probably names put down, to hold out to others the appearance to others of its being appointed.' Lord Cochrane, however, was a prisoner in the King's Bench at the time of Watson's Spa fields riot. The Watson trial commenced on Monday, June 9, 1817. It lasted seven days, and the Court appears to have sat for ten or eleven hours each day. By Saturday evening the evidence was closed, the speeches were finished, and the summing-up alone remained to be done. The following conversation took place : — 11. 426. Lord Ellenborough. — We cannot conveniently assemble on Monday before ten. The Grand Jury are to attend here. A Juryman. — My Lord, we hoped we should not be dismissed till the cause was determined. We have attended six days, and it is of material importance to us as members of society that we sliould not be kept longer than is absolutely necessary. ■ HONE'S BLASPFIEMFES 269 Lord Ellenborough. — It is the wish of everybody that the business should be brought to a conclusion as soon as possible ; but it is quite impossible to recite the evidence to you after this hour ; it would not be possible to read it through. A Juryman. — It is only six o'clock my Lord. Lord Ellenborough. — I should have to detain you several hours. Mr. Justice Bayley. — -My Lord is very much fatigued already. A Juryman. — I hope the Court will consider the situation of our families. The Court adjourned till Monday. If it met at ten, the summing-up must have taken seven hours, and the deliberation of the jury to^k over an hour and a half. Here we have a jury preferring to sit through a case to any adjournment. Their doing so is not looked upon as extraordinarv. Customs have changed since then. As regards Hone's trials, I regret that I can give no full idea of them. I cannot undertake to reprint coarse parodies of the Catechism, the Athanasian Creed, the Litany, and of the Ten Commandments. I have no original author- it}^ before me except Hone's own account, and even on that I am prepared to take my stand and say that I feel certain that the sympathy of every decent man who will take the trouble to wade through these trials will be on the side of Lord Ellenborough, and not on the side of Hone. Hone was tried before Mr. Justice Abbott, and acquitted on a charge of parodying the Catechism, The Lord's Prayer, and the Ten Commandments. He was tried a second time before Lord Ellenborough for a parody of the Litany. His line of defence was to read in Court every parody on religion that he could find whose writer or publisher had not been prosecuted. Lord Campbell says : ' The jury after a short deliberation returned into Court.' Hone says : ' The jury then at a quarter-past six retired, at eight they returned.' I do not call a delibera- tion for one hour and three quarters a short one. At his third trial for a parody of the Athanasian Creed, Hone resumed his tactics of reading other parodies. To peruse his trial is to wade through every variety of blas- phemy, for on this occasion he appears to have been con- vinced from the maimer of some of tlie jury that his acquittal 270 THE QUILT OF LORD COCHRANE IN 1814 ' Autobio- graphy,' ii. 379. Proceedings at public meeting, 7th Edition p. 13 of Appendix to ' Hone's Trial.' ' Life of Lord Dun- donald,' i. pp. 102-5. was certain, and he therefore did all he could to irritate the Judge, whom he knew to be a firm believer in religion. Yet Lord Ellenborough sat through it all, notwithstanding the riotous interruptions of the mob, in a manner which did him the utmost credit. Hone tells us that the mob outside the Court, while the jury were deliberating, amounted to not less than 20,000, and this at half-past eight on December 20. At p. 420 in the grandson's edition Lord Dundonald says : — ' I know nothing of Hone's works nor of the libels of which he was accused.' If Lord Dundonald did not know anything about them, it must have been because he had forgotten the ' torrents of cheers ' that greeted the following speech, delivered at a meeting called on December 29, 1817, to sympathise with Hone nine days after his acquittal. Lord Cochrane adverted to the sentence that had been passed on him upon an unjust conviction for breaking out of prison. A fine of £100 had been imposed upon him ; but sooner than have paid that fine, he would have remained and rotted in prison ; his constituents paid it for him, and relieved him from his most painful situation. That money he now wished to return and with feelings of heartfelt thankfulness to Mr. Hone for his manly and able exertions in defence of the liberties of the people, he would now lay down the one hundred pounds which he then held in his hands, in addition to the sums already subscribed for him. (Here there were torrents of applause which lasted several minutes.) He makes no mention of this £100 having been sub- scribed in pence. Nor is there any mention of its having been so subscribed in his speeches, in the 1830 pamphlet, or in his Observations in 1847. I have not found any allusions to a penny subscription in any newspaper, book, or pamphlet previous to 1869. In that year the eleventh Earl, in quoting from an ' Auto- biographical fragment ' written by Lord Dundonald shortly before his death, says, ' that a meeting of the electors of Westminster was held at which it was determined that CABINET MINISTER FABLE. 271 the amount of the £100 fine should be paid by a penny subscription no person being allowed to subscribe more.' Then he says that not only the £100 fine, but that the £1,000 fine with something beyond was thus realised. Taking however the £1,100 paid in pence this alone showed that two million, six hundred thousand and forty tliousand persons composing a very large proportion of the adult population of the kingdom sympathised with me. Not one of my persecutors could have elicited such an expression of public sympathy. If the above calculation is correct, there must have been Times. two thousand four hundi^^ed pence in every sovereign in istfJ.'^* ^^' 1817. In a letter to The Times the grandson has described it as a penny subscription from more than half a million persons. This would be equal to £2,083. In his 1890 edition he has wisely omitted the correct amount. When such discrepancies in figures occur, it is clear that ' Dundonald ' accounts need auditing. In the ' Autobiographical fragment ' Mr. Jackson's ' ^'- J"''^- . T 1 1 -nr son's evi- name is mentioned as having applied to the Master of the dencc' Crown Office to take the amount in coppers, but in his ^' ' evidence in 1862 he confined himself to the statement that Lord Cochrane's constituents paid the fine, and said nothing about copper coinage. As Westmmster was an extensive constituency, containing both rich and poor, I think it quite possible that the fine was raised in that district, and that some of it may have been in pence. This ' Autobiographical fragment ' may be looked upon as one of numerous ' Dundonald ' myths. The story has, however, been frequently repeated, notably by Sir Eobert Anstruther when moving for a Select Committee in 1877. I now come to one of the most important, and one of the most easily disproved, of all the Dundonald fairy-tales. At the period of my trial, Lord Ellenborough was not only Chief Justice of the King's Bench, BUT AT THE SAME TIME f^.P**"'" *« A CABINET MINISTER. This terrible combination of incom- ist;.. i.ii- patible offices was for the first time under constitutional govern- *',",i'"j",""* ' ment effected in the person of Lord Ellenborough, and to the sin^if- credit of subsequent administrations for the last time also, ^^q^ 272 THE GUILT OF LORD COCHRANE IN 1814 Edition in 1861, p. 504, and 1862, edition pub- lished by nth Earl. ' Autobio- graphy,' ii. 382. No other Chief Justice ever came hot foot from a Cabinet Council to decide the fate of an accused person politically obnoxious to the Cabinet ; the trial going on from day to day, so as to become open no less to Cabinet than to forensic discussion. . . . Had that vote [on expulsion from the House] been in my favour, the Chief Justice could not have held his seat in the Cabinet, and his evacuation could scarcely have been other- wise than followed by that of the whole Ministry. . . . The question, however, became thus one of ministerial existence. Times, November 17, 1860. Every sentence in the above quotation is untrue. The writer's history is at fault, for Lord Mansfield held both offices from 1757 until 1765. This extraordinary mis- representation has done more service to Lord Cochrane's cause than any other. They were withdrawn by the eleventh Earl in a letter to The Times (November 17, 18G0), only to be repeated by him in one-volume editions in 1861 and 1862. The Hon. J. W. Fortescue has unfortunately given it a fresh lease of life in a book which professes to be history, but which is chiefly a condensation of the historical novel I am now criticising. I despair of catching up this particular fairy tale ! But I hope to be able to clip its wings a little by contradicting it in the words of the eleventh Earl of Dundonald. In a letter to The Times of November 17, 1860, after making some corrections with regard to the account of the Basque Eoads affair as given in the ' Autobiography,' he says that * in future editions this error will be rectified and in the fullest manner explained.' After reading the above I was much astonished to find that there are in existence single- volume editions, published by Bentley in 1861 and 1862, in which all these attacks on Lord Ellenborough appear to be repeated word for word, and in which no trace of this withdrawal can be found. He had ample opportunity of repudiating the reprint of this charge in the one-volume edition, or of reprinting his letter to The Times when he published the continuation of his father's life in 1869. This, however, he did not do, but continued, instead, to heap abuse upon Lord Ellen- LORD ELLEN BOROUGH OPPOSED TO GOVERN MENT 273 borough. Already in 1864 he had applied for the repay- ment of the line (which, according to his own account, had been more than repaid by the pennies of the nation) for the arrears of pay due to him as the personal representative of the late Earl of Dundonald, and also that ' a pension, or such other remuneration or reward as Your Most Gracious Pbro o. Majesty in your wisdom may deem fitting, may be granted juneT*^' to your memorialist.' His eldest son, to whom all these I^^[°^^ claims had been left by the tenth Earl's will (subject to a f'on.mittee. deduction of 10 per cent, for Mr. Earp), was at that time a minor. The eleventh Eaj| does not appear to be asking for this money as his son's representative or trustee, but in his own name. It might, with one of my most bitter opponents for a judge, 'Autobjo- have been a still greater marvel had I been acquitted than that 38i (p.'42i, I was convicted without and in opposition to evidence. grandsoa's Now I cannot find that Lord Cochrane and the Chief Justice are ever stated by any one to have come into contact with one another before the trial, and the notes of Edward Law's speech in 1816 contain the words : ' Lord Ellen- borough had no knowledge of Lord Cochrane. Zeal for naval service would have made him partial and anxious to acquit.' Li the 1890 edition, at p. 421, the grandson says : Writing nearly fifty years afterwards. Lord Dundonald fell into excusable error in speaking of him as still in the Cabinet, whereas in 1814 he only enforced the views of the Ministry from the judicial Bench. Here the grandson apparently makes the mistake of supposing that the Cabinets of 1806 and 1814 were the same. Now Fox was the leading spirit of the Grenville Ministry, and Lord Liverpool was the head of the other. Their views were as far apart as those of Asquith and Bonar Law. In 1806 Lord Ellenborough had voted against his party on the important question of the guilt of Lord Melville, father of the First Lord of the Admiralty, in 1814. On February 18, 1808, he declared in the House of Lords — z 274 THE GUILT OF LORD COCHRANE IN 1814 ' that no act had been committed by the Government of this country which so much disgi'aced its character. . . . He could not avoid reprobating in severe terms the expedition to Copenhagen.' A man who could speak as independently as that was certainly not likely to enforce the views of a Ministry simply because it was a Ministry. CampbeU'3 In February 1810, on the acquittal of Mr. Perry, th^'Fhie°/ editor of the Morning Clironicle, on a charge of trying juotices,' to bring King George the Third into contempt, Lord iv. 259. ' Ellenborough was looked upon by the Attorney- General, Sir Vicary Gibbs, as belonging to the Opposition because he had not summed up in the way Sir Vicary would have wished. Though Lord Dundonald's admitted failm'e of memory may be considered a sufficient excuse for his possible share in the above mistakes, still no such plea can be brought forward either for Mr. Earp, who professed to verify all he wrote for those responsible for the one-volume editions of 1861 and 1862, or for the grandson's edition of 1890. Lord Dundonald's own account of himself always reminds me of that celebrated juryman who never sat on a jury without finding himself in the company of eleven WTong-headed and unjust men. The ' Autobiography ' says : ,_, Autobio- Il^d Lord Ellenborough ever possessed a true sense of delicacy, graphy,' il he never would have presided at that trial. 381. ^ Then the grandson goes on to say in a note of his own, at p. 421 : * The " delicacy " referred to by Lord Dundonald will be best elucidated by the following extracts from contemporary journals commenting on the trial.' Then he quotes from an article that appeared in the Champion of July 3, 1814, which will be found in extenso in the appendix to the second volume of the 1860 edition. Lord Cochrane's politics are of a kind to excite the displeasure of the Court against him. One of his relations has stiiTed on behalf of the Princess of Wales ; and we believe he has made 'INACCURACY OF LORD FORTESOUE IN isr,0 275 himself, or assisted, some little scrutiny into Lord EUeuborouTh's perquisites of office. Now I do not in any way object to the grandson's quoting from opposition or republican journals when ho can find no better evidence to support his case, oven if they were originally inspired either by Lord Cochrane, Cobbett, or William Jackson. But I would point out that we are given the ' It is said ' of an opposition newspaper as sufficient evi- dence of an assertion which, if true, must have been known to Lord Cochrane himself. If there had been a particle of truth in it, Lord Cochrane would have made this charge in his own name in 1814, and would have given the time, place, and particulars of this ' little scrutiny.' It would have formed a fourteenth charge against Lord EUenborough ill 1816, and would have been contemptuously dismissed with the others, especially if brought on no better evidence than that given by the grandson. Now it is quite possible that Lord Cochrane and other reformers may have thought a Chief Justice was overpaid, just as in 1807 some naval reformers thought that post- captains received too large a share of prize-money as com- pared with the seamen under their command, although Lord Cochrane held a different opinion. The other quotation is from the Examiner. As it makes no definite or distinct assertion capable of being directly verified or refuted, I have not thought it worth while to reprint it, but have considered it sufficient to refer the reader to the ' Autobiography ' itself. There is an account given in the ' Autobiographv ' of ' i^'f^" a'lJ . Times of certain words said to have been used by Princess Charlotte Lord with reference to Lord Cochrane at the time of her escape, n.'^^al"'"' Lord Brougham, who was present, has absolutely denied that she used the words in question. At p. 442 the grandson quotes an account of a meeting said to have been held at Kirkcaldy on September 8, 1814. A contemporary pamphlet to be found at the Inner Temple Library has described tliis meeting as an entire myth. Hiiwever, I do not pretend to decide which statement is correct. t2 276 THE GUILT OF LORD COCHRANE IN 1814 In the next paragraph he writes in such a manner as would cause the reader to beheve that this and other addresses had some effect on the Government in causing the pillory portion of the sentence to be remitted. But this was done on July 19, and the Kirkcaldy meeting is said to have taken place on September 8. The grandson further quotes the opinion of various eminent lawyers on the question of Lord Cochrane's inno- cence. Lord Fortescue, in a letter dated November 1, 1860, wrote as follows about Scarlett — afterwards Lord Abinger : — ^ Grandson's Whom I myself heard some years after lie became Chief edition, Justice, at a dinner party at the late Sir George Philipp's, where .442. the conversation happened to turn on your trial, that having been one of your Counsel, and fully acquainted with all the facts of your case, he was satisfied of yoiu' innocence, and that he believed that it might have been established to the satisfaction of the jury if the Judge had not arbitrarily hurried on the defence at a late hour of the evening. I think that this conversation must have been very much after dinner. Lord Fortescue's memory was evidently defective, for Lord Abinger was never Chief Justice, and Lord Fortescue may not have described the conversation which took place with sufficient exactness. But if the rest of his account is correct, it appears a great pity that Scarlett did not say these things in some public place where it would have been of use to his client, and at a somewhat earlier period. He had a seat in the House of Commons, and his silence on these points between 1814 and 1816 is most significant. Next comes the opinion of Sir Fitzroy Kelly, who in a letter dated December 19, 1860, wrote : Five years after the trial of Lord Cochrane I began to study for the bar, and very soon became acquainted and interested in his case, and I have thought of it much and long during more than forty years, and I am profoundly convinced that, had he been defended singly, and separately from the other accused, or had he at the last moment, before judgment was pronounced applied with competent legal advice and assistance for a new trial he would have been honourably acquitted. fiin FITZFOY KELLY 277 Of this Mr. Atlay WTites : His letter is dated previous to the communication made by AtiAv. Lord Cochrane's solicitors to the Law Review, and so when he P" ^*^' declared that Cochrane would have been acquitted, had he been defended separately, he could not have been aware, as we are, that the joint defence was resolved upon, after long and anxifuia deliberation, by the unanimous decision of Best, Topping, Scarlett (Lord Abinger), and Brougham, who must have been far better able to form an opinion of the merits of Lord Cochrane's case than the most brilliant advocate who had never seen their brief. Sir Fitzroy starts witli the assumption of Lord Cochrane's innocence ; but had he brought himself to entertain for a moment the alternative view, his professional experience would have told him that when the affairs of three defendants are inextricably entangled, it is often most dangerous to separate their defences lest they become mutually destructive. On June 28, 1862, moreover. Sir Fitzroy Kelly described Spooch be- Lord Cochrane as ' unscrupulous, fearless, reckless in all roL^^^t'tte the actions public and private of his hfe.' "f i'"^'- , . , . leges. Then an extract is quoted from a letter said to be written by Lord Erskine in 1823. Mr, Atlay writes : Lord Erskine and Lord Ellenborough had been rivals at the r- 366. bar, and colleagues in the Cabinet, and in the investigation into the charges against the Princess of Wales. It is difficult to believe that the ex-Lord Chancellor joined in the out-cry against the Lord Chief Justice, and strange that he did not make his high station and great forensic reputation of more avail on Lord Cochrane's behalf. The slightest expression of opinion from him in the months following the trial, would have been worth more to Lord Cochrane than any number of affidavits or pamphlets. In contrast with the words of these eminent men, I venture to quote the remarks made as recently as 1889 by [a former Lord Chancellor] the Earl of Halsbury, who had been one of the Select Committee on the present Lord Dundonald's petition in 1877 and whose reputation as a criminal lawyer is equalled by few men now living and surpassed by none. It gathers weight from the fact that it was delivered, not in a friendly letter, not in talk over the dinner table, but in his place in the House of Lords. 278 THE GUILT OF LORD COCHRANE IX 1814 Hansard, On August 15, 1889, Loi'd Fitzgerald, in moving th^ i299^*'^' second reading of a bill for the establishment of a Com-t of Criminal Appeal, referred to the case of Lord Cochrane, and as he quoted from the ' Autobiography ' in his speech, it is not unfair to suppose that his knowledge of the case was partially, if not entu'ely, derived from that work. I am, however, completely baffied as to his authority for the following sentence of his speech : ' After a not very long interval Lord Dundonald's innocence was fully estabhshed, not by the Home Secretary but by independent enquiry.' I am aware that many people have a vague belief that some such enquiry has taken place. But when, where, by whom, and after what investigation has the decision of the jury been reversed ? To this question I have never been able to obtain an answer. In his reply Lord Halsbury stated : The account of the trial of Lord Coclirane, — both what was proved, and, what was more important to Lord Cochrane, what he did not prove, but what if innocent he could have proved, — raises in my mind a very serious question, whether any Court of Appeal would have thought it right to reverse the verdict of the jury. No doubt it was time of great political excitement ; and I am not desuous of going into the matter so far as to raise questions the discussion of which might give pain to some who are still alive. I may. however, say this much about the case — the noble and learned Lord must not assume that all enlightened, educated, legal opinion concurs with him when he says there is no doubt whatever that Lord Cochrane's innocence was con- clusively established. CHAPTER II PETITION TO PARLIAMENT, 1877 In 1877 the then Lord Cochrane, now Lieut. -General the Earl of Dundonald, K.C.B., went down to the House of Commons asking for sympathy and a sum of money, with a petition to the Queen in one hand, and the ' Autobiography of a Seaman ' in the other. He had applied for the back pay which his grandfather would have been entitled to receive had he not been removed from the service. His petition contained an exaggerated account of his grandfather's services, based apparently upon the ' Auto- biography ' and other Dundonald writings. The very existence of Chili, Peni, and Brazil appears to be due to his grandfather. But even if all these exaggerations are struck out, some of the exploits w^ere well worthy of consideration. The petition also dwelt a good deal upon the plans for attacking fortresses, which at that time were still secret. In the ' Autobiography ' these plans were said to ■ Auto- biography,' afford the infallible means of securing at one blow our maritime P- " -•^'*- superiority, and thereafter maintaining it in perpetuity of at once commencing and terminating war by one conclusive victory. . . . Some, it is true, have said, For heaven'b sake P- 239. don't encourage such plans ! — What is to become of us ? What, universal peace after their disclosure, not a man would be found to engage in war except for defence of his country. . . . ' Had the same 'plan been hiomi to the rebels in the Indian p. 228. Mutiny, not a single European in India would have escaped.' ^ix^^0Tig\L\. When these secret plans were published in the ' Paninuro Papers ' in 1908 they never caused the slightest flutter in naval and mihtary circles. From the account given 279 280 THE GUILT OF LORD COCHRANE IN 1814 of them in that book, I doubt very much if any of the foreign Governments who emploj-ed Lord Cochrane could have found the necessarj^ materials for carrjdng them into effect, so that I do not consider that he is entitled to any praise for not having made use of them. To enable my readers to form a judgment on this point themselves, I have put the description of them in the Appendix. I think it quite possible that the grandson fully believed in his grandfather's innocence in 1877, as in a faith in which he had been brought up from his childhood, and that he probably looked upon the ' Autobiography of a Seaman ' in the light of a sacred book, and that to doubt the contents thereof would be sacrilege. If he was in this frame of mind, it made the presentation of such a petition much easier to him. The insertion of the following words must therefore, I think, have been due to the advice of some older and more cautious person who was better acquainted with the facts, and who well knew that the slightest investigation of the incidents of the trial would have been fatal to the prayer of the petitioner : — Your Majestj^'s Petitioner does not desire to recall the inci- dents of the trial, still less to scrutinise the evidence on which he was convicted. The meaning of this is clear. Pay me some money, declare my grandfather innocent, but for heaven's sake do not investigate the truth of my assertions. This petition was backed by a large number of Peers, Admirals and others, nearly all of whom may be considered to have derived their sole knowledge of the trial from various inexact Dundonald versions. As the Government declined to accede to its prayer, it was l)rought before the House of Commons by Sir Eobert Anstruther on April 10, 1877. Most of the speakers on this occasion appear to have been saturated with the writings that had appeared under the name of Dundonald. Sir Robert Anstruther spoke of Lord Cochrane's case as being ' the case, it might almost be said, of the most SIB BOBEBT AySTBVTUEB 281 distinguished servant the Crown had over had in this country.' He went on to say : ' It was a very delicate thing, even after a long interval, to bring a charge against a man whose reputation stood so high as that of Lord Ellenborough.' Then he quoted Lord Campbell for the purpose of showing ' that the trial was conducted, as against Lord Cochrane, at least with a very strong bias adverse to him in the mind of the presiding Judge.' He went on to say that the fine of £1,000 was immecJiately paid by subscriptions through- out England of a penny apiece ; and that the number of people who subscribed to the fund was 2,640,000. That at least shewed that in the pubhc mind of England there existed a very wide-spread opinion that Lord Cochrane had been unjustly convicted. I have already audited and disallowed the items of this account at p. 196. The whole tone of Sir Eobert's speech is that of an honest, warm-hearted ' Dupe ' of the Earp-Jackson-Dun- donald hterature. The same remarks also apply to the speech of Mr. Walpole, who also quoted Lord Campbell, and what he called Lord Dundonald's remarkable * Auto- biography.' Sir Stafford Northcote gave various technical reasons for not complying with the prayer of the petition, and said : If it was assumed that there had been misconduct on the part of Lord Ellenborough at the time, and a failure of justice in consequence of transactions at the trial, there might be some feeling on the part of those interested, either in the memory of Lord Ellenborough or in any of those who were concerned in the trial, that their case also should be considered, and their answer to accusations such as those brought forward by the hon. Baronet should be heard. I must confess I was sorry to hear the hon. Baronet speak of the conduct of Lord Ellenborough in a way which seemed to me unnecessarily to prejudice the matter. This is a case in wliich there was a strong feeling, and everybody knows that charges 282 THE GUILT OF LORD COCHRANE IN 1814 were brought against Lord Ellenborough of a very grave character for having politically perverted justice — charges which no one looking calmly at the matter will think were well founded. Whether, under the circumstances, Lord Dundonald had all the advantages which he ought to have had in the way of defending himself, and whether, if he had had them, the result would have been different, is quite another question. But when it is implied that there had been, if not conscious, at any rate serious misconduct on the part of Lord Ellenborough, that is a point with which it would be extremely difficult for a Com- mittee to deal, and upon which they could not arrive at a satis- factory conclusion. If anything is to be done in the matter, it must be done on different grounds from those that have been urged. It might be a question whether it was possible for the Croivn, by grace and favour, to ])ropose any vote of money for the purpose of recog- nising the services of an illustrious man. That was a different idea. But that a Committee of this House should now undertake to look into a question of this sort seems to me to be a proposal of very grave consequence. If there is any desire on the part of the friends of the family to bring out more of the facts of the case the Government have every disposition to give returns and information which might establish them. Mr. hyoYi. Playfair, afterwards Lord Playfair, who had been on the Committee appointed to enquire into Lord Dundonald's secret plans, a man of great scientific require- ments, declared himself to have been a friend of the late Earl's. He quoted from a letter written by Lord Dundonald shortly before his death, also from the ' Autobiography,' and then went on to say : Let me read from his autograph will which I hold in my hand, the touching terms in which it is bequeathed. I leave exclu- sively to my grandson Douglas all the sums due to me by the British Government for my important services, as well as the sums of pay stopped (under perjured evidence) for the com- mission of a fraud on the Stock Exchange. Given under my trembling hand this 21st day of February 1860, the anniversary of my ruin. DIFFERENCE BETWEEX WILLS QUOTED 283 I do not know from whom Mr. Playfair obtained the document from which he was quoting. The loill actnalhj jyroved at \ Somerset House Jias a different date, and contains no mention of anniversaries or trembling hands. The clause refciiing to his grandson is as follows : — I give and bequeath to my grandson Douglas Mackinnon Baillie Hamilton Cochrane subject to payment of a portion tlicMcof to George Butler Earp aforesaid as hereinafter mentioned all tlie monies due to me from the British Government for my important services. Also the amoii^t due from the British Government of my back pay, of which I was injuriously deprived during forced expulsion from the British Navy on perjured evidence which neither the Courts of Law, nor the House of Commons would give me the opportunity of rebutting. I have printed some more of the will in the Appendix, and shall at present confine myself to stating that I thhik it most unfortunate that the actual words of the proved will, instead of an inaccurate version of its contents, were not laid before the public and the House of Commons in 1877. For the purpose of influencing the House of Commons the substituted will was evidently a better document than the real will. The mention of Mr. Earp's name as sharing with the grandson would have provoked criticism, and would in all probability have been fatal to the petitioner's claims. Yet I do not think that Mr. Lyon Playfan was a man who would have knowingly substituted a false will for a real one. The real will was accompanied by a sworn statement of the eleventh Earl, dated May 22, 1861, stating that he had caused a careful search to be made, and ' that he verily believed that the deceased died without having left any will or codicil or testamentary paper other than the said will.' This still further complicates the mystery of the document <* quoted by Mr. Playfair. Mr. Isaac Butt then spoke. His speech was in a very emotional tone. He said that he had met Lord Dundonald V more than once at the house of a mutual friend, and had '■ had a conversation with him on the subject forty years ago (1S37). 284 THE OUILT OF LORD COCHBANE IN IS 14 Most of the speakers alluded at length to Sir Eobert Wilson's restoration to the army as constituting a parallel case. In the end Sir Eobert Anstruther challenged a division, and his motion was agreed to — a great triumph for the composers of the so-called ' Autobiography.' The eldest surviving son of the Chief Justice, the late Hon. Henry Spencer Law, then an old man, was much astonished when he first heard of this debate. At the time of the trial he was a boy at school, and he had always looked upon the debates in 1816, and the subsequent division in the House of Commons of 89 to 0, as so conclusive, that he had never thought it necessary to pay any further attention to the trial, and no other member of the family had ever troubled himself about it. Mr. H. S. Law was as much surprised as any descendant of Sir A. Cockburn might be, if an attempt were made to renew the charges brought by Dr. Kenealy in connection with the Tichborne case. I myself had always looked upon the autobiographical account of the trial as the ravings of a man in his second childhood, and had thought that the absurdities contained in it carried with them their own contradiction. The portion of the petition to which Mr. H. S. Law most strongly objected was worded as follows :— At Ills trial the prejudice of a gieat and eloquent Chief Justice was for some iniknown cause excited against liim, and thence upon evidence now universally admitted to be imperfect, he was found guilty. A new trial was refused to him on the technical ground that the other persons charged with him, who who had escaped and fled the country, did not join in the application. I do not at all wonder that the petitioner did not wish to have the evidence on which this charge was made jjroperly * scrutinised.' On May 81, Mr. H. S. Law wrote to Sir Stafford Northcote as follows : — H. S. LAW'S LETTER TO SIR STAFFORD NORTUCOTE 285 30 Ecclcston Square. May :nst, 1877. My dear Sir Stafford Northcote,— My attention has only just been called to a Tetition of the present Lord Cochrane to^Her Majesty, praying H.M. 'to complete the gracious Act of Royal Justice which restored the late Ld. Dundonald to his rank and honours &c.' This Petition has, it appears, been referred to a select Com- mittee of the House of Commons. Were the Petition confined to a demand for some further recognition of the very brilliant Naval Services of the late Lord Dundonald, I should be the last person to raise any opposition to its prayer. "^ But it is not so — The Petition proposes, on the ground of an assumed general admission, that the late Lord Dundonald was innocent of the charges, brought against him by the Committee of the Stock Exchange in 1814, — to brand with injustice and partiality the Judge who tried him, and to set aside the verdict of the Jury who found him guilty ! It is true that assertions of Lord Dundonald's innocence have, ever since the Trial, been reiterated by himself, and his friends, and, it being the business of no one in particular, to support the opposite view, these assertions have passed without challenge. 1$ It is thus that a spurious public opinion has been formed, in absolute ignorance of the facts, — very different from the opinion of the House of Commons in 1816, when the facts were in the memory of all. Then, Lord Cochrane was able to find one Member onhj, his colleague in the representation of the City of Westminster, to second his motion, upon his bringing forward charges, impugning my father's conduct at the Trial ;— the House subsequently, without a division, deciding that those charges should be expunged from its Journals. Lord Dundonald's friends treat his restoration to the service as a testimony to his innocence of the original charge, and as a reversal of the verdict of 1814. — I consider that it should rather be looked upon, as the remission of the remainder of an unexpired sentence, and as, at most, an acknowledgment, that he had been more than sufficiently punished for his offence. My object in writing this letter is to express my hope, that it is not the intention of the Government, to let Judgment go by default against the Judge and Jury who tried this case G.3 years ago — but that they will take care that, before the Committee of 286 THE GUILT OF LORD COCHRANE IN 1814 the House of Commons come to any decision, they may be placed in possession of the same evidence which that Judge and Jury had before them at the time of the Trial, and also the further information which was before the House of Commons in 1816. Trusting that you will consider my position as the eldest surviving son of the inculpated Judge, a sufficient excuse for thus troubling you, , Believe me, Yours sincerely, H. S. Law. Sir Stafford Northcote replied on June 1 : I will communicate with the Chairman of the Committee to which the petition has been referred (Sir Robert Anstruther), and also with the Solicitor-General, ^ who is a member of it, and will call their attention to the points to which you refer. The Solicitor-General is already alive to the importance of doing justice, or preventing injustice being done, to the tribuna before which Lord Dundonald was originally tried and sentenced Subsequently the following correspondence took place between Mr. H. S. Law and Sir Kobert Anstruther : — 36 Eccleston Square, June 9th, 1877. Sir,— Having seen the Petition to Her Majesty, on the part of Lord Cochrane, which has been referred to your Honourable Committee, I trust that I may be permitted, as the eldest sur- viving son of the late Chief Justice, Lord Ellenborough, to point out some objections to a compliance with the prayer of that Petition, in the terms and for reasons stated in that Petition. The Petitioner throughout assumes every point which it is his business to prove. He assumes the late Lord Dundonald's innocence, in the face of a verdict which pronounced him guilty. He does not ' desire to recall the incidents of the trial, or scrutinize the evidence on which he (Lord Dundonald) was convicted,' while he asserts that ' it has been admitted that he was unjustly condemned.' I emphatically deny that any such admission has ever been made by any competent authority. ^ Now the Earl of Halsbury, ex-Lord Chancellor. I MR. H. S. LAW'S LETTER TO SIR ROBERT ANSTRUTIIER 287 The late Lord Dundonald received Her Majesty's free pardon, and I, for one, have no objection that Lord Dundonald's Repre- sentatives should receive every possible benefit that may be a fair and natural consequence of such a pardon. But arbitrarily to strike out a record of conviction, and to brand with the stij^nia of injustice the Judge who tried the cause 63 years ago, is I apprehend beyond the power of any Ministry, if it does not even transcend the limits of Her Majesty's Prerogative. — If anything could add to the palpable injustice of attempting to adopt such a course, it would be that the perfect fairness of tli3 trial has been admitted in the most explicit manner by Lord Uundonahl's Counsel, Lord Brougham, even while he expressed his disapproval of the verdict, and his dis'^nt from the opinion of the Judge who tried the cause. In opposition to the verdict, the late Lord Dundonald lias only been able to offer the affidavits of persons who might have been produced in Court at tlie trial, had it been considered prudent to expose them to the risk of cross-examination. In addition to this, as evidence of his innocence, the late Lord Dundonald puts forward the popular cry in his favour, and a popular election ! But it is hardly in these days, and with our recent experience, that a popular cry or a popular election, will be held to outweigh, upon a question of fact, the deliberate verdict of a jury.^ Let the Committee recommend whatever sum they may think fit to be paid to the representatives of the late Lord Dundonald, in recognition of that gallant Seaman's services, provided that this recommendation is not accompanied by a Libel upon a Judge and Jury, long since gone to their account. I have the honor to remain, Sir, Your obedient humble Servant, H. S. Law. PS. — May I be permitted to add that in case the 2nd Vol. of the late Lord Dundonald's Autobiography should be referred ^ Mr. H. S. Law was referring to the election of Dr. Kcnealy for Stoko- on-Trent, which in the eyes of some proved the truth of his charges agahist Chief Justice Sir Alexander Cockbuni and the identity of ' the claimant ' with Sir Rog6r Tichbourne. The elections for Westminster and for Stoke-on-Trent had much in common. Both were based on mis- representations and libels on the character of a judge, and when the charges were brought before the House of Commons they both met with a similar reception — one in 1816, the other in 1875. 288 THE GUILT OF LORD COCHRANE IN 1814 to before your Committee as evidence of any fact, it is utterly unreliable. Failure of memory, the result of extreme old age, may charitably be allowed to account for many inaccuracies. One instance will suffice. Lord Dundonald confounds the short- lived ' Talents ' Administration with that of Lord Liverpool, and represents my father as a member of the latter. To the Honble. Chairman of the Committee in the case of Lord Cochrane's Petition. Sir Robert Anstruiher to the Hon. H. S. Law. 1 Eccleston Square, June 9th. Sir, — I beg to acknowledge your letter of this day's date, addressed to me as the Chairman of the Select Committee appointed to report upon Lord Cochrane's petition. The letter shall be laid before them at its next meeting. Yours faithfully, Robt: Anstruther. The Honble. H. S. Law. Now as my father was unacquainted with Sir Eobert Anstruther, and as he wrote to him in his official position as Chairman, I think that this correspondence ought cer- tainly to have appeared in the printed report of their pro- ceedings, as it would have greatly assisted not only the House of Commons, but the pubhc in coming to a correct conclusion, and would have had the good effect of opening up a spirit of enquiry. At about this time my father heard of the articles in the Laiv Magazine, to which 1 have already referred. Some questions connected with copyright prevented him from republishing them, but he had them reprinted with a short preface. Copies were sent to the members of the Select Committee, and to some of the leading members of both Houses, during the latter part of the month of June. This was, however, rather late, as the Committee had unfor- tunately already decided not to touch upon the trial itself. The second article of the Law Magazine will be found at the end of this book. CHAPTER III SELECT COMMITTEE, 1877 The Committee was composed as follows : The Solicitor- General (Sir Hardinge Giffard, now Earl of Halsbmy), Mr. Walpole, Admiral Egerton, Mr. Russell Gurney (the Recorder of London, son of the Mr. Gmney who led the prosecu- tion in 1814), Mr. William Holms, Mr. Allsopp, Mr. Isaac Butt, Mr. Alfred Marten (who afterwards became Sir Alfred Marten and a County Court Judge), Mr. Baxter, Mr. Sackville, Mr. Greene, Mr. O'Bryne, Mr. Tremayne, Mr. Whitbread, and Sir Robert Anstruther (Chairman). It met seven times between May 17 and July 14, on which latter date their Report was adopted, and on the 16th it was ordered to be printed. The most important paragraphs in this report were only carried by a majority of one. The minority consisted of the present Earl Halsburj'-, Mr. Russell Gurney, ]\Ir. Allsopp, Mr. Alfred Marten, Mr. Sackville, and Mr. Tremayne. Except Mr. Sackville, all these members voted against the question, ' That this report as amended be the Report of the Committee to the House.' I attended their public meetings, but at that time I knew nothing whatever about the case. It was not until the pubHcation of the Hon. J. W. Fortescue's ' Dundonald ' that I took up the matter seriously. In considering the petition the Committee said they had not deemed it necessary to touch on those portions of it which referred to the trial of Lord Dundonald. The 'Select „ , ,,11 . Committee. evidence taken was for the most part purely documentary isw/p. n. and formal. With the exception of Mr. Bramwell, a clerk in the War Office, who was questioned as to precedents 289 u 290 THE GUILT OF LORD COCHRANE IN 1814 connected with the cases of Sir Eobert Wilson and Major Bristowe, the only witness examined was the petitioner himself. 'Select He was not asked a single question concerning the trial 1877,' p. 6.' itself, and Lord Ellenhorough'' s name was not even mentioned p. 6. in the evidence taken before the Comynittee. In giving his evidence, the petitioner produced both the ' Eeview of the Case of Lord Cochrane,' published in 1830, and the ' Observations on Naval Affairs,' published in 1847. He also quoted the ' Autobiography of a Seaman,' and its continuation by the eleventh Earl. Some of his evidence, however, deserves notice. On June 8 he was asked — Question 61. Did your grandfather leave anything to you by his will ? He did. 62. Have you got a copy of that part of the will here ? I have the will here with me. 63. Did your grandfather by his will bequeath to you all the monies due to him from the British Government for his important services, and also the amount of his back pay during his expulsion from the British Navy ? Yes. On June 12 — Question 131. You were asked as to the date of Lord Dundonald's will ; can you give it now ? It is dated 16th August, 1860. I confess to having felt considerable surprise when I first confronted the will of Lord Dundonald with the above answers. That such answers might have been unthinkingly and hurriedly given is perhaps possible, but as witnesses before a Select Committee are given an opportunity of correcting the proofs of their evidence before the final copies are sent out, I should have expected to have seen the evidence that he gave on June 8 corrected on the 12th, and worded as follows : — ' Yes, except 10 per cent, left to Mr. Earp, my grand- father's '' friend and literarij coadjutor," as a compensation • I I LORD PLAYFAIR AND A MYSTERIOUS LADY 291 for his services in his belialf — to his literary cxertio7is ivill he mainly oioing any recovery of the said sums.' Had such an answer been given it would have been in exact accordance with the words of the will. The sentences that I have put in italics are to be found in the real will, the one dated August IG and proved at Somerset House, part of which I have reprinted in the Appendix. I think that the House of Commons ought to have known, the public ought to have known, and under the circumstances Mr. H. S. Law ought to have had an oppor- tunity of knowing, that the House was being asked to pass a vote which would have tlie practical result of rewarding Mr. Earp's representatives with public money for his dis- tinguished services in producing and assisting in the pro- duction of one of the most untruthful books that ever deceived a generation of Englishmen. Had a complete answer been given by the petitioner the whole matter would have entered into a new phase, for the House would certainly have been asked to limit their vote so as to exclude Mr. Earp's representatives from any share in it. An autograph will that was never proved was not the only cm'ious document cited by the late Lord Playfair. Other and more romantic evidence that never came before the pubhc was also laid before the members of the Select Committee. A lady with a 'veiled' name and a 'secret document ' was brought on the scene by Lord Playfair in a manner which nresistibly reminds one of the Dreyfus- Esterhazy Case. I give an extract from a letter of his which appeared in the Speaker on April 9, 1898 : — A remarkable episode occurred. A well-known and distin- guished lady brought a letter faded with age, whicli Lord Dundonald wrote to her from Newgate on the night of his committal. This letter said in substance, that it was a terrible calamity for both of them, but that he was supported by a knowledge of his innocence, and that she would be supported by the guilt of her Father not being suspected. I was authorized to place this letter before the Committer, but I dechned, as I was sure that my friend Lord Dundonald u2 292 THE OUILT OF LORD COCHRANE IN 1814 would strongly disapprove if alive. Still I shewed the letter individually to each member of the Committee, and it may have had some effect on their judgment. The love between Lord Cochrane and his correspondent was well known, and he took the consequences of the verdict against him rather than throw the guilt on the father of his love. This letter is now in the archives of the Dundonald family. Lord Playfair was a very old man in 1898, and his letter shows that he had parted with the document referred to more than twenty years previously. Though I have no doubt that Lord Playfair did take some letter round for the purpose of influencing individual members of the Com- mittee, I have grave misgivings as to whether it was worded exactly as stated by him ; and if it in any way influenced the Committee, it seems a pity that it was not published. Possibly it wt)uld not have stood investigation any more than the affidavits I have previously mentioned. It is, however, impossible for me to ignore a letter written by the late Lord Playfair, as it may be quoted by others. If his memory of its contents w^re exact, who can have been the mysterious father whoso guilt was not even suspected ? I doubt his existence. Lady Dundonald was 'Memoirs of not alive in 1877, so that she cannot have been the lady p[a°yfair.' referred to. Her eldest son, the eleventh Earl, was born in Keidl^'sS ^^®®^^ Street in April 1814, after the fraud but before the pp. 236^0.' trial. However, we are told that this letter is in the Dundonald archives. If so, it can be produced if necessary. At one time we have been told that Lord Cochrane sacrificed himself for the sake of his uncle, and now we are told that he did so for the sake of the father of this unnamed lady. Self- sacrifice may go as far as silence, but I think it should stop short at untruthful affidavits and subornation of perjury. And if Lord Cochrane deliberately chose to sacrifice himself for the sake of another, what moral right had he to blame his judge or any one else when he found his burden too hard to bear ? Seldom have I seen more inaccuracies packed into so few pages as in Lord Playfair's account of the fraud of LORD PLAYFAIE'S DEFECTIVE MEMORY 293 1814, and of the proceedings of the Select Conimitteo of 1877, as described in his memoirs. He there repeats the story of the mysterious lady. I shall not trouble my reader by goincj throui^h iiis " M.ti...ir8 mistakes sentence by sentence, but shall touch on four ]»()iiil s navfilir.' only. Had Lord Plavfair refreshed his memory by rcadin<' ••> .\^ '•'>•>•'« the trial before writmg about it, he never would have said pp. '-'ari-u. that De Berenger delivered his news at the Stock Exchango before going to Lord Cochrane's house, or that hv had landed in a boat at Dover. If he had looked up the ])ro- ceedings of the Select Coijimittee of 1877, he would not have said that back pay was granted to the grandson. One sentence however, in justice to the descendants of Admiral Sir Alexander Cochrane, I must quote in full : ' Upon that rise Lord Cochrane made a few thousand pounds, and his uncle Admiral Coclirane made a still larger sum.' At the time of the fraud Admiral Cochrane was on the other side of the Atlantic, in command of ships blockading the harbours of the United States. As there were no wireless or electric cables in those days, it was impossil)lo for him to be in touch with the Stock Exchange. I have already shown that the will quoted by Lord Play- fair when in the House of Commons was not the real will, though everyone who heard or read his speech must have thought that it was. It is wonderful what an epidemic of inaccm-acy has spread itself among the writers and speakers who believe in the innocence of Lord Cochrane. It is much to be regretted that a letter of Lord Hadding- ton's, written in 1842, could not be found. I have myself enquired about it, and find that in all probability it must have been written in the First Lord's private oHice, so that there would be no record of it at the Admiralty, though a copy of it may exist among Lord Haddington's papers. Sir Eobert Peel alluded to it as follows, in answer to an apphcation of Lord Dundonald's in 1844 : — I beg leave to refer your Lordship to the letter which the Earl of Haddington the First Lord of the Admiralty addressed to your Lordship in 1842, as I am not enabled to make any 294 THE GUILT OF LORD COCHRANE IN 1814 communication to your Lordship on the part of Her Majesty's Government differing in purport from that letter. Had this letter been at all in favour of the Dundonald contentions, the original would in all probability have been kept and produced before the Committee. But I fancy that if produced, it would have contradicted the following paragraph in their report, which was carried by one vote only. Report, It appears to your Committee that these steps [partial restora- P' ^'- tion on three different occasions to rank and honour] could not have been taken by responsible advisers of the Crown, who believed that Lord Dundonald was guilty of the crime of which, in 1814, he was convicted, and the course pursued towards him amounts to nothing less than a public recognition by those Governments of his innocence. Mr. Atlay wrote as follows concerning the above para- graph : — Atlay, That in inserting these words the Committee were going outside P' ■ the terms of the inquiry, and its scope as defined by the evidence received at it, may be gathered from the fact that these sentences were not contained in the original Draft Report as proposed by the Chairman, Sir Robert Anstruther. They were only carried on division by one vote, the minority consisting of the Solicitor-General Mr. Russell Gurney, Mr. Alfred Marten, Mr. Sackville and Mr. Tremayne. Furthermore, these same members, with the exception of Mr. Sackville, voted against the question ' That this Report as amended be the Report of the Committee to the House.' I must say that I entirely disagree with the view adopted by this majority of one. If these Governments believed in his innocence, they acted most unjustly in not making his restoration complete at the time instead of doing it by instalments. It is very curious how the majority of this committee carefully avoided expressing any opinion of their own about Lord Cochrane's innocence. The re- printing of the articles from the Law Review must have had some effect. I have already quoted the opinion of one of the BE PORT OF COMMITTEE OF 1S77 395 Committee, the Solicitor-General, afterwards Lord Chancellor and Earl of Halsbury, as given by him in the House of Lords. The previously expressed opinions of some of tho majority of the Committee made it difficult for them to withdraw from the position they had taken up. In their final report the Committee summarised the evidence produced before them, prefacing it with the statement : — In considering the Petition, your Committee have not deemed Report, it necessary to touch upon ftiose portions of it which refer to the ^- '"" trial of the late Lord Dundonald, but they have confined tlicir inquiry to the circumstances that have occurred since the trial took place. The Committee mentioned the cases of Sir Eobert Wilson and Major Bristowe, and reported very favourably as regards Lord Dundonald's conduct in connection with the secret plans. Their report consisted of twenty-three paragraphs. It concluded by saying, as regards the back pay: That the reparation spoken of in the Treasury Minute is not complete ; and in the opinion of your Committee, no technical rule should be permitted to stand in the way of a ' reparation,' the justice of which seems to follow by a natural inference from the steps that have been already taken. It should be borne in mind that the exceptionally brilliant services of Lord Dundonald would, but for his dismissal, probal)ly have earned for him a far more ample and adequate reward tlian any that he received for his services rendered to the British Crown. Next year it became necessary for the Government to deal with this report. But there was a possibility that a vote for back pay might be opposed by some of the members who had taken the trouble to read the Reviews that had been reprinted, and who had, in other ways, made them- selves better acquainted with the trial. Lord Cochrane's supporters could have had no desire for a fresh debate, based on more accurate information before a House, many 296 THE QUILT OF LORD COCHRANE IN 1814 of whose members were by this time well aware that Lord Cochrane was really guilty, and that his attacks on his Judge were utterly indefensible. But they wished for a vote of money ' to save their face,' as the Chinese call it. A leader of the House of Commons generally takes the line of least resistance when he ^vishes to get business done, and a passage in a letter of the Hon. H. S. Law pointed to a possible way out of the difficulty. In writing to Sir Stafford Northcote he had said : Were the petition confined to a demand for some further recognition of the very brilliant naval services of the late Lord Dundonald, I should be the last person to raise any opposition to his prayer. This enabled a grant of £5,000 to be made to Lord Cochrane ' in respect of the distinguished services of his gi'andfather, the late Earl of Dundonald.' Now the last paragraph of Lord Coclii'ane's petition was worded as follows : — Shortly before his death Lord Dundonald wrote, Sir Robert Wilson claimed his back pay as a riglit consequent on his unjust deprivation, and obtained it ; I have unceasingly done the same, not from the pecuniary value of the amount due, but from the consideration that its being withheld still operates as a stigma on my character and family, which is inconsistent with my restoration to the service. My efiorts have hitherto been without success. But back pay was not granted, so that the ' stigma ' remains. The sum of £5,000 has been stated to be almost exactly equivalent to the arrears of half-pay without interest. I cannot, however, undertake to audit all ' Dundonald ' accounts, though I have endeavoured to do so as regards the ' penny subscription ' story. The exact value of the ' distinguished services ' rendered by Lord Cochrane did Pam hiet ^^^ concern my father more than any other taxpayer. at British In the ' Observations on Naval Affairs, 1847,' Lord Dundonald fObservk- has published a most extraordinary and characteristic MR. EARP'S TEN PER CENT. 297 statement of his losses on account of the trial, which may tiotm on interest the historian. ^li^'"' • Allairs, pp. 81-80. He put his fine and legal expenses at . . . £5,000 • o\>»erva. Loss of half-pay for eighteen years . . . £1,000 tio"*.i'M7,' Loss of legacy from his uncle the Hon. Basil Cochrane, '^''' who was wrought upon in his dotage by the aspersions of those around hiiu. [Basil Cochrane died in 1826, leaving a widow] . . . . £10,000 Loss of Culross Abbey and estate, Sir Robert Preston having signed a new deed when in a state of mental incapacity. A friend of his had informed him that therelvas a larger quantity of and greater variety of winos in the cellars of Culross Abbey than under any one roof in that district £50,000 Claim on Chili £26,000 Claim on Brazil £100,000 Recent sale of property to creditors . . . £15,000 Adding these sums of money together, he complains that he had been fined not^£ 1,000 only but . £240,000 It is remarkable that this summary contains no mention of the penny subscription story. Several newspapers of the day complained that the grant was not made otherwise, and that the ' concession was not more gracious in form,' but the writers of these articles were evidently ignorant of the reasons why the vote was taken in the above-mentioned manner. As soon as the money had been voted by the House of Commons, Mr. Earp's representatives, whose claims had been so discreetly kept in the background, rushed forward to demand their share. They at once brought an action for Timu, their money. After hearing the case in July 1878, Vice- i^f^. Chancellor Malins held that the claim of Mr. Earp's repre- sentatives could not be resisted, and the £500 was ordered to be paid to them. They also received about £3,000 for their share of the Brazilian claims. I have already shown what the ' Autobiography of a Seaman ' is. As regards the trial, it is a tissue of misre- presentations, written utterly regardless of facts and dates. 298 THE OUILT OF LORD COCHRANE IN 1814 There are almost as many inaccuracies and exaggerations in the other portions of the work. It is not an autobio- graphy ; it is not written by a seaman. It was written by Mr. Earp, and when Lord Dundonald's memory was too defective for him to rely upon, he trusted to the infor- mation he received from the perjured William Jackson. Mr. Earp's 10 per cent., and what he did for it, with a William Jackson basis, has for many years been the founda- tion-stone of the state of public opinion, as regards Lord Cochrane's trial. This 10 per cent, ought to have been mentioned in evidence by the petitioner before the Select Committee of the House of Commons. The public ought to have known to whom they were practically asked to vote a sum of money, and I think that the fact that the grandson had to share the money that was voted with the Earp representatives must have utterly destroyed any pleasure he may have felt at having received the balance of £4,500. He has omitted all reference to this division of the spoils in his edition of 1890, and in his letters to The Times in 1889. It is, however, true that in 1877 the grandson was pro- bably not aware of the exact parts played by George Earp and William Jackson in his grandfather's history. But he ought to have made himself acquainted with them before he re-published and revised Mr. Earp's work in 1890. He has concluded his preface to the sequel in that book by saying, ' Many would have compiled a more eloquent sequel to the " Autobiography," none could have done so with more reverence for the subject, or with a greater desire for the most absolute simplicity in stating the facts.' I have shown him what his facts are. I CONCLUSION To bring the reader's miiid back to the main issue — the guilt or innocence of Lord Cochrane in the Stock Exchange fraud of 1814 — I shall conclude by republishing the remark- able article which appeared in the Law Magazine and Law Review of February 1861, and which was evidently based on a careful and impartial investigation of the whole case. THE WHOLE CASE In our last number we reviewed the trial of Lord Cochrane. ^ * Trial. We now recur to it to correct some errors into which we were ''' led by the ' Autobiography of a Seaman.' In the course of our remarks we drew attention to Lord Dundonald's bitter attack on the late Baron Gurney, for deserting his cause after having been confidentially consulted by him, and going over to lead the prosecution against him. We also gave credence to Lord Dundonald's statement that his solicitors — then, as now, a firm holding the most eminent position — had mismanaged or neglected his case. Though we expressed our doubt as to the propriety of the reflections upon Baron Gurney, yet to the positive and circumstantial statement of Lord Dundonald we attached, as is now obvious, a value to which it was not entitled. Nor are the accusations which his Lord- ship launched against Messrs. Farrer & Co. justifiable, and we regret that we too unguardedly accepted them to any extent. And first, as to the charge against Baron Gurney. The Recorder of London has favoured us with the following com- munication, which we are very glad to lay before our readers, and which requires no comment from our pen : — 1 Law Magazine and Review for February 1861— No. 20, vol. v. p. 203. 299 300 THE GUILT OF LORD COCHRANE IN 1814 ' To the Editor of the Law Magazine and Review. ' 8 Palace Gardens, ' February 1861. ' Sir, — The prominence given by your reviewer to a passage cited by Lord Dundonald's " Autobiography," and the comments made upon it, render it necessary for me to request the insertion of this letter in your next Number. The following is the passage ' '^i'ri^'' ^^ which I refer : — " The result Avas that an affidavit was prepared and submitted to an eminent barrister, Mr. Gurney (afterwards Mr. Baron Gurney), to whom I disclosed every particular relative to the visit of De Berenger, as well as my own previous though very unimportant transactions in the public funds. I was advised by him and by my own solicitors to confine myself to supplying the authorities with the name of De Berenger as the person seen in uniform at my house on the 21st ult. With this suggestion, wisely or unwisely, but certainly in all honesty, I refused to comply, expressing my determination to account for all my acts on the 21st of February, even to the entire of my whole time on that day. Finding me firm on that point, the affidavits were settled by Mr. Gurney, and sworn to, the name of De Berenger for the first time thus heconmnj known to those who were in search of him." ' I do not in the least complain of the comments upon this passage made by your reviewer. I quite agree with him, that if it were true that Mr. Gurney had been consulted by Lord Cochrane in the way described, and had himself settled the affidavit in question, the subsequent use made by him of that affidavit, and his remarks upon it at the trial, would have been " unfortunate if not unfair." But the statement in the " Auto- biography " is altogether untrue. It is untrue that he was in any way consulted about it. It is untrue that Mr. Gurney settled the affidavit. It is untrue that he was in the smallest p. 190. degree cognisant of it until after it was published to all the world by Lord Cochrane. If I had no evidence to offer in opposition to Lord Dundonald's statement but my recollection of my father's account of the transaction, or the recollection of the transaction itself by his clerk, who is still living, I might hesitate to write this positively, though I feel quite certain that it would require som^ething more than the assertion of Lord Dundonald, who is, as your reviewer says, " by no means careful CONCLUSION 801 in his statement of facts," to convince anj- o£ mv father's con- temporaries that he had been guilty of a dishonourable action. But in addition to this evidence I have the statement, upon oath, made by Lord Dundonald himself when the circumstances were fresh in the recollection of everybody. This statement is contained in the affidavit which he used on moviuf^ for a now trial, in which he gave the history of the affidavit of tli<> lltli March. He there states that having, on the 8th or 9th of March, received an intimation that placards were affixed in several of the streets, stating that a pretended Col. du Bourg had gone to his (Lord Cochranc's) house in Green Street, he ap])liod to the Port-Admiral for leave of absence, and arrived in l^ctndon, to the best of his belief, on the 10th of March, and " that after his arrival, he himself, conscious of his innocence, and fearing no consequences from a development of every part of his own conduct, and desiring only to rescue his character from erroneous impressions made by misrepresentations in the public prints, he, without any communication whatsoever with any other 'person, and without any assistance, on the impulse of the moment, prepared the before mentioned affidavit, which he swore before I\Ir. Graham on the 11th March." Yet it is this affidavit which Lord Cochrane thus swore was j)repared on the impulse of the moment, without any assistance, and without any communication with any other person, and it was sworn to within a day of his return to London, which, it is now stated, formed the subject of consultations with his solicitors and Mr. Gurney ; and, after consultation, was settled by the latter gentleman. ' It mav be as well to state what was the slender foundation for this extraordinary fiction. It was not till three weeks after the affidavit of the 11th March was sworn to and published, that Mr. Gurney was in any way consulted in the matter. On the 2nd April a case was laid before Mr. Adam and Mr. Gurney f». 307 n. ; his speech. 122-5 Bickerton, Admiral, 138 Bicknell. Mr.. 31 Binns, Messrs., 74, 78 Bissel, Lieut.. 45 Blanco, Mrs. Commodore, 235 Bligh, Capt., 29-32, 41-4 Bond & Co., 100, 108-10 Bourne, Fox, 223 Bramley (watchmaker), 110 Bramwell, Mr., 289 Brand, Mr., 153 Bristowe, Major. 290. 295 Brougham, Lord. 50, 84-7. 93. 111. 118, 123, 127, 131. 158. 198. 236. 275, 287, 304; quoted, 154-«}. 257, 261 Brougliton, Capt., 46 Browne, A., 147, 152 Burdctt, Sir Francis. 16. 139 ».. 154-6, 159. 169. 181, 198, 230. 268; quoted, 185-6 Burroughs, Mr. Justice. 194 Busk, Sarah. 130. 13!t, 151. 164. 264; as ' Ehzabeth ' Bu.sk, 139 Butler, Mr., 78 Butt, Isaac, 283, 289 Butt, R. G., 50-1, 55. 58-9, 65. 71 seq., 144 -leq., 239, 266 srq. ; trials of. 197-200 Ccesar, ship. 20, 30, 32. 36. 39-43. 48, 205 Cnkutta, storeship. 20. 2ft-.'W). 42-4 Caledonia, H.M.S., 22. 24. 29-33. 4U 318 INDEX Calumnious Aspersions, pamphlet, 77-8, 106 Cambridge Chronicle, quoted, 77 CampbeU, Lord, 113-15, 132, 136, 168. 236, 239-48, 259, 267-9; quoted. Ml 8, 281 Camperdown, Admiral Lord, 49 Canaris, Admiral, 229 Cantarac, General, 215 Carling, William. 107 Cassard, French ship, 28-30 Castlereagh, Lord, 153, 156, 158, 187, 197 Cathcart, Lord, 59, 95 Cliamjjion, quoted, 273 Charlotte, Princess. 275, 277 Chelmsford. Lord, 251 Christie, Mr., 246 Cliristmas, Mr., 78, 109, 123 Church, General Sir Richard, 227 Clarence, Duke of. 232 Clements, Lieut., 27 Cobbett, Mr., 60, 79, 94, 169, 275 Cochrane, Admiral Sir Alexander (uncle), 2, 52, 55, 64-6, 69, 107, 126, 130, 172. 293 Cochrane, Lady (wife of Sir Alexander), 107, 172 Cochrane, Arthur A. L. P. (son). 315 Cochrane, Hon. Basil (uncle). 52, 55, 106-7, 167-9, 172, 177, 189, 239, 252, 253, 297 Cochrane, Mrs. Basil, 172. 178 Cochrane, Douglas M. B. H. (grand- son). See under Dundonald, 12th Earl of Cochrane, Ernest G. L. (son). 315 Cochrane, Colonel George (brother), 44. 126, 172 Cochrane, Horace W. B. (son), 315 Cochrane, Thomas Barnes (son). See under Dundonald, 11th Earl of Cochrane, Major Hon. William, 140 Cochrane, Lady (wife of Lord Cochrane), 69, 172, 176, 234-5, 257 Cockburn, Sir Alexander, 186 n., 284, 287 n. CoUingwood, Lord, 18 Colton, Sarah, 73, 308 Conflict, brig, 22, 29, 36, 44 Congreve, Mr., 30, 41 Conway, corvette, 214 Cookesley, Lieut., 27, 45 Crane, William, 73. 102-3, 132-3, 151, 163-4, 168-9, 186, 192, 262-5 Critchfield, Mr., 163 Croker, John Wilson, 16. 17, 71, 74, 153, 260, 262 Crosbie, Capt., 221 D.iMPiER, Mr. Justice, 134-6, 242 Davidson, Mrs., 103 Davidson, Lancelot, 103-4, 189-92, 234, 253 Davis, Isaac, 63, 68, 73-4, 78, 124-7, 131, 138, 164, 260, 264, 308 De Berenger, Charles Randolph, [alias Du Bourg), 51-2, 60. passim ; ' The Noble Stock Jobber,' 171-2 De la Mar, Governor Jose, 214 Dealtry, Mr., 139 Defence, H.M.S., 21 Denman, Mr., 142 Denman, Sir Thomas, 236 Dewman, Thomas (servant), 68, 73-4, 78, 126-7. 130, 138-9, 143, 151, 161, 164, 173-5, 307-10 Diadem, H.M.S., 92 Dido, H.M.S., 92 D'Istrias, President Capo. 231 Donnithorne, Isaac, 77, 86. 178-9 Du Bourg, Col. R., 55-60, 86 ; and see under De Berenger Duncan, Capt., 49 Dundonald, Lady. See under Cochrane Dundonald. 11th Earl of, 169, 193, 223. 270, 272, 283, 290, 292, 315-16 ; letter quoted, 256-8 Dundonald, 12th Earl of, 8, 236-7, 252, 260-6, 270-1, 279, 280, 283, 298, 315 : quoted, 274 Earp, G. B., 218. 224, 249 seq., 257-9, 274, 283, 290, 297-8 315-16 Ebrington, Lord, 157-8 Eden, Hon. George, 71 Edie, Mr.. 101 Egerton, Admiral, 289 Eldon, Lord Chancellor, 14, 244 Ellenborough, Ann Lady, 91, 168 Emerald, ship. 29, 41 Erie, Mr. Justice, 243 Erskine, Lord. 277 Esmeralda, frigate, 202, 209-10, 214, 217. 235 Etna, bombship, 29-30, 41-4 Eurotas. H.M.S., 74, 127, 138 Evans, Thomas, 100, 108, 110 Examiner, 275 INDEX 319 Fabvter. General, 227-8 Fairfax. Edward, 22, 24, 26, 33, 42. 44-5, 69 Faradav. Prof., 313 Farrer,':Messrs., 73-4. 83. l.W. 157, 160-70. 233. 259. 267, 277, 299, 302-10 Fearn, Mr.. 51, 63. 67, 97 ffcq. Finlay's ' Greek Revolution,' 225 ; quoted, 226-7 Fitzgerald, Lord, 278 Fleming, Admiral, 74. 127, 138 Fleming, Mr., 251, 253 Flintoff, Acting-Lieut.. 26 Foley, Admiral Sir Thomas, 59, 95, 101, 132, 143, 174-5 Fortescue, Lord, 276 -'\ Fortescue. Hon. J. W.. 16, 218, 272, 289 ; quoted, 219, 227 Fondroyant, French ship, 28, 30, 43 Friere, General, 206 Galloway, Alexander, 226-7 GaUoway, R. H.. 227 Gambier, Admiral Lord. 20-2, 24-33, 36-7, 170; trial of, 38- 48 Oamo, Spanish frigate, 3 Garonne, corvette. 8 Garrow, Sir William. 147, 157 ; quoted, 159-60, 185-6 George III, King, 2, 274 Gere.sana, Spanish ship, 203 Gibbs, Sir Vicary, 294 Gloire, corvette, 8, 237 Godfrey, Capt., 44 Gordon, General, 225. 227 Gosling, Francis. 198 Gosling's Bank, 197 Goulburn, Mr.. 118-19, 126 Gourlay, Mr., 101 Graham, Mr., 64 Greene, Mr., 289 Grenfell, Capt., 220-1 Grey, Lord. 84, 87, 155 Guarani, ship, 223 Guerin, quoted, 7 Guise, Admiral, 202, 208, 210 Gurney, Mr. (afterwards Baron Gurney). 74. 94 seq.. 133-4. 140-4. 152, 259. 260. 299 seq. ; quoted, 190-1, 194-5 Gurney, Russell. 259, 289, 294; letter quoted, 300-2 Gurney (reporter), 165 Haddinciton, Lord. 293 Halsl)ury. Earl of. 277. 28«. 289. 295 : quoted. 8 Hamilton, Duke of, 3 Hamilton, Capt., 7. 209 Harvey, Admii-al. 20. 22. 32. 17 Hastings, Warren, 89 HaswcU. Lieut.. 4-9 Hawkins. Sir Henry. 116 IlelUis. Greek frigate. 227-30 Hermionc, frigate, 7, 209 Hichens. Mr., 97 Hind, H.M.S., 1-2 Hinde, Colonel, 205 HoUowav. Mr.. 58, 80-1, KM. 11.!. 124, 129, 142-4 Holmes, Mr., 147, 160 Holms, William, 289 Holroyd, Mr. .Justice. 199 Hone Vial. 267, 269-70 Hope, Admiral. 172 Hope, Miss, 172 Home, Sir William. 2.'5('> Horner, Francis. 60, 148 Hunt, Leigh, 267 Hutchinson. Viscount, 252 Hyperion, sloop, 209 iBRAniM Pasha. 227. 230 Hluslrious, H.M.S.. 46 Imperieuse, H.M.S., 13. lS-23. 26-33, 38^6, 49 Indejatigable, frigate, 25. 29. 32-3. 41 Independence, Chilian ship. 210 Indienne, French frigate. 35 Insolent, gun-brig, 29, 44 Jacksox, William, 68-70. 77. UM) tt. Ill, 169. 180. 194. 201 nrq.. 249 .3-5 Shuridan, Mr., 156-0 Shilhiig, Thomas, lUl-2, 109, 206 Smallbono, Air., 97, 109 Smith, Mrs., 78, 98-9 Smith, WiUiam. 78, 98-9, 110 Solomon, Mr., 79, 99, 103, 133 Spankio, Mr., 1S9 iSpcakcr, quoted, 291-2 Speedy, brig, 2-3 Spry, Mr., 202, 208 Spurling, Mr., 28, 30, 38 Stephen, Sir Jamos, 110 Stevenson, \V. li., 2U3 Stokes (otKcor), 22. 24, 29. 43 Stoptord, Admiral, 30-34, 38-41 Stuart-Wortloy, Mr., 153, 155 Surprise, H.M.S., 7, 209 Surridge, Admiral, 02, 04 Quarterly Review, quoted. 166 Queen v. Caudicell, 2*3 Rayment, Mr., 163 Bedpole, brig, 25-6 Reeves, ]\Ir., 66 Regulus, French ship, 28, 30 Revenge, H.M.S., 25, 29-33, 41-7 Rex V. Askew, 242 Rex V. Teal, 242-3 Reyes, Garcia, quoted, 209 Richardson, J., 97, 102, 106, 111, 142, 174 Richardson, William, 48 Rising Sun, ship, 201 Rodd, Capt., 25, 29, 32 Rumbold, Lady, 89 Rumbold, Sir Thomas, 89 Sackville, Mr., 289, 294 St. John, Mr., 101 St. Leonards, Lord, 246 St. Vincent, Lord, 3, 9, 13-16 Saktouri, Admiral, 229 San Martin, General, 202-3, 208-17 San Martin, ship, 217 Sandom, Mr., 58, 81, 104, 113, 124, 142 ^ , Scarlett, Mr. (afterwards Lord Abinger), 85, 109, 115, 117, 126, 276, 303^ Seeks, Mr., 110 Seymour, Capt. G. F., 43, 45 ' Shaftesbury, Life of Lord,' 246 Shepherd, Lieut., 223 Tahottrdin, Gabriel, 86, 127, 142, 172 Tapageuse, French sliip, 4-9 Tavistock, Lord, 156 Taylor, Capt., 220-1 Temeraire, H.M.S., 22 Theseus, H.M.S., 30, 32, 41, 43 Thetis, H.M.S., 2 Thistlewood, A., 268 Tichborne, Sir Roger, 284, 287 ?t. Times, The, 194, 254, 202-3, 266, 271-2, 298; quoted, 57, 187-8, 236 Tonnant, H.M.S.. 13, 52-4. 62, 65-6, 71-2, 120, 131, 138, 151, 107, 260-1 Tonnerre, French ship, 29, 30, 42, 44 Topping, Serjeant, 85, 304 Torrens, Colonel, 118. 119, 226 Tourville, French ship, 30 Townsond, J., 10, 188 Towry, Capt. G. H., 91-2 Tremayno, Mr., 289, 294 Tricoup's 'History,' 225, 227; quoted, 228 Trowbridge, Lady, 172 Tucker, Mr., 14 Turpin, Mary, 73-4, 78. 84. 124, 138, 150-1, 161-4, 170, 204. 305- 10 Turton, Mr., 172 .,.,,, Twelve Apostles, The, battleship. 314 Unicorn, frigate. 22, 29. 32. 41-2 Unicom, schooner yacht, l-o. •JU 322 INDEX Valiant, ship, 29-32, 41-3 Venganza, frigate, 216 Vigonia, Spanish ship, 29-32, 41-3 Ville de Varsovie, French ship, 29-32, 42-5 Vulture, H.M.S., 91 Wade, Mr., 103 Walpole, Mr., 281, 289 Ward, postboy, 108 Watson, James, 113 n., 267-8 Wellington, Duke of, 19, 21 Wetherell, Mr., 161 Whit bread, Mr., 84, 153-5, 289 Whiting, schooner, 30, 42 Wilberforce, William, 91 Wilkinson, Mr., 45 William IV, King, 2, 51, 232, 234 Wilson, Sir Robert, 284, 290, 295-6 Wolfe, Capt., 26-7, 30, 45 Wood, Alderman, 113, 157 Wood, Joseph, 108 Wooldridge, Capt., 27, 35-6, 44 Wright, filr., 77 n., 100-1, 106 Wyman, Mr., 148, 158 Yarmouth, Lord (afterwards 6th Marquis of Hertford), 66, 87 120-1, 124, 127, 167, 177-9 Yeowell, Mr., 163 Yorke, Mr. (First Lord of the Admiralty), 49 Zeneto, Ignatio, ' 202-3 ; quoted, 203-7 Zeneto, Jose Ignatio, 202, 206-9, 217 THE END PEIXTED BT 8POTTISWO0DE ASD CO. LTD., COLCHISTBB LONDOM ASD ETOS SMITH, ELDER, & CO.'S NEW BOOKS. The Villa for Coelebs. By Sir JAMES H. YOXALL, M.P., Author of • The Wander Year*.' kc. Large Post 8vo. 6s. net. TiMBS.— ' Sir James Yoxall's m6tier is the vivaciously discursive. This lively and cultured causerie.' Daily News. — ' A gay companion. He gives forth much to charm and ironi- cally to enlighten.' Evening Standaro — • Arirl. MP.. take.s us by the hnn>i and runhoji uh aboat breathlessly from simile to »imlle. bot when we come to the prcnt niTHlori«'«, the great emotions of life, the mad scherzo becomes a charmingly symiia- thetic andante.' From the Old South Sea House. Being Thomas Rumney's Letter Book, 1790-1708. Edited by A. W. RUMNEY, Author of 'The Dalesman,' kc. With 3 Illustrations. Large Post 8vo. 78. 6d. net. Whitehaven News. — ' A remarkable semi-autobiography, for Mr. Thomai Rumney had the same gift of apparently unconscious self-revelation which Mr. Samuel Pepys displayed in his Diary.' The Law and the Poor. By His Honour JUDGE PARRY, Author of ' Judgments in Vacation,' ' What the Judge Saw,' kc. Large Post 8vo. 7 8, 6d. net. Times. — ' Every member of Parliament ought to pass a qualifying examination in this book, to prove that he has read it ; and he should not receive his halary until he has passed. Judge Parry has treated this uninviting subject ."o wisely nnd wittily, with so much knowledge, insight and sympathy, that its dulness disappears and gives place to a lively interest.' Outlook. — Judge Parry does good service not only to the poor, but to the whole community. The book is most readable, and is constantly illuminated by flashes of shrewd insight and pungent wit.' Italy's Foreign and Colonial Policy. Being a Translation of Senator Tittoni's Speeches by the Baron BERNARDO QUARANTA DI SAN SEVERING. With a Portrait of Senator Tittoni. Large Post 8vo. 78. 6d. net. Sunday Times.—' It contains such a harvest of information, of facta, and of opinions as is indispensable to all who desire to follow the trend of present political events. The speeches are excellently translated.' ,. v Daily News.— 'As continuity is even more marked in Italian foreign policy than with us this authoritative record, cotnposed of the actual speeches of a Foreign Minister, is instructive at this moment.' The Greek Philosophers. By A. W. BENN. NEW EDITION. Demy 8vo. 188. net. New Statesman.-' The amount of labour and of learning that ban pore to the making of the work is pr< d'gious ; tleftjle is idhmxtic. lull of col-ur. and free from superfluous jarpon ; his presentation of facts is alwaje con^cientiona. London : SMITH. ELDER, & CO., 15 Waterloo Place. S.W. NEW 6s. FICTION BY THE MOST POPULAR NOVELISTS OF THE DAY. A REALISTIC NEW NOVEL By the Author of 'ELIZABETH AND HER GERMAN GARDEN.' The Pastors Wife. Globe. — ' A wonderful portrait of a woman by a woman. The power of this story is uudeniable, and the analysis of feminine feeling aimost un- canny. A very remarkable novel iudeed.' BvENiNO Standard. — ' The story is told with wonderful art, an i tlie author has a knack of Betting lorth its progressive phases with a light touch.' Daily Chronicle.— ' From first to last it Is really pathetic, ami yet we laugh ! Where would be the use of an "Elizabeth " book if we cuuli not do so ? ' New Statesman. — ' The wit is r. strained within the bounds of art, but it is in a state of perpetual up-bubbling line "champagne."' Spragge's Canyon. By HORACE ANNESLEY VACHELL, Author of ' The Hill,' ' The Paladin,' ' Blinds Down,' &c. Pall Mall Gazette. — ' It is a fine story, told with all the ai't of which Mr. Vachell is a master.' South Wales Argtjs. — 'That de- lightful tale, fresh, vital, human, humorous.' Molly, My Heart's Delight. By KATHARINE TYNAN, Author of ' A Midsummer Rose,' 'John Bulteel's Daughters,' &c. Globe. — ' A charming and altogether captivating heroine. A story to make one glad o' the reading.' Sunday Times.— ' Katharine Tynan has a pleasant story to tell and tells it in a pleasa.t faihion.' BY THE AUTHORS OF ^ROSE OF THE WORLD.' The Ways of Miss Barbara. By AGNES and EGERTON CASTLE, Authors of ' Rose of the World,' ' French Nan,' &c. Scotsman. — 'This naive and spirited yonng damsel goes far towards dethronine older favourites from a first placp in our regards. From first to last -if, indeed, this be the last— her progress will be followed with admi ation and delight.' Liverpool Daily Post —'This delightful story of old-world gallantry and gaiety bubbles over with comedy and kindness. This should be one of the most popular novels of the season.' A Green Englishman and other Stories of Canada. By S. MACNAUGHTAN, Author of ' The Fortunes of Christina McNab,' ' A Lame Dog's Diary,' ' The Expensive Miss du Cane,' &c. London : SMITH, ELDEE, & CO., 15 Waterloo Place, S.W. SMITH. ELDER, & CO.'S NEW BOOKS. A NEW WORK BY ARTHUR C. BENSON. The Orchard Pavilion. By ARTHL'Ii C. BENSON, Author of ' The Upton Letters,' ' From a Collepo Window.' 5cc. Small Crown 8vo. Tastefully bound in Leather. 3b. 6d. net. New Poems. By ROBERT BROWNING and ELIZABETH BARRETT BROWN'INO. Edited by Sir Frederic G. Kenyon', K.C.B., D.Litt., kc. With 2 Portraits, that of Mrs. Browninp being from an unpublished miniature paintinpr. Small Crown 8vo. 5s. net. Poems. Freedom : By GEOFFREY WINTIIROP YOUNG. Author of ' Wind and Hill.' Demy 8vo. 5s. net. The Morning Post. — ' A master of the open-air music which can only be heard by those whose souls are attuned to Nature's aspirations and inspirations.' In Dickens's London. By F. HOPKINSON SMITH, Author of 'In Thackeray's London.' With 24 Full-page Illustrations from the Author's Drawings in Charcoal. Super Royal Svo. 15s. net. Westminster Gazette. — 'There are many little touches of novelty in the information about the novelist, whose spirit Mr. Smith has imbibed to good purjwue. All Dickensian enthusiasts will rejoice in the book.' Pall Mall Gazette. — ' A book which is dflightful in its spirit and its narrative, and altos'ether original. Worthy of the pen of Dickens himself. A mc^t companion- able and cherishable book.' Italian Gardens of the Renaissance, And other Studies. By JULIA CARTWRIGHT, Author of 'Madame Isabella d'Este.''The Perfect Courtier,' ' The Painters of Florence,' ice. With 16 Illustrations. Demy 8vo. lOs. 6d. not. The Spanish Dependencies in South America. By BERNARD MOSES. 2 Volumes. Demy Svo. 21s. net. London : SMITH, ELDER, & CO., 15 Waterloo Place. S.W. * The South Polar Times April-October 191 1. A Lithogra'phic Reproduction in Facsimile . As Issued Typewritten, and in Three Parts, during The British Antarctic Expedition, 19I0-19I3 ('Scott's Last Expedition'). Including contributions by CAPTAIN SCOTT and many other Members of the Expedition. Edited by Apsley Cherry-Garrard, Assistant Zoologist to the Expedition. With numerous Coloured Illustrations, Silhouettes, Caricatures, and Photographs by Dr. E. A. Wilson, Commander E. R. G. R. Evans, C.B., B. C. Day, D. G. Lillie, and H. G. Ponting. Demy 4to. Price £3 3s. net. ,* The Edition for Sale is limited to 350 copies, each copy being numbered. Prospectus, with Specimen Coloured Plate, post free on application. The Austrian Officer at Work and at Jr lay. By Dorothea GERARD (Madame LONGARD DE LONGGARDE). With a Frontispiece. Large post 8vo. 7s. 6d. net. TiJtEa. — 'Mme. Longard de Lon^garde has, besides her literary gifts, the advantage of the most intimate relations with Austrian military society.' Academy.—' The book should tind a place on every regimental reading table. The general reader will find much entertainment in the numerous auecdofes.' Daily News.— 'Will be read with as much interest by the man of peace as by the man of war.' bea rower : and Other Studies. By Admiral Sir CYPRIAN BRIDGE, G.C.B., Author of * The Art of Naval Warfare,' &c. Crown Svo. 5s. net. TiMKS,—' There are few living English writers who have done more than Sir Oyprian Bridge to disseminate sounil ideas of naval wartare and of the princiolea that underlie its successful conduct. To high professional at ainments and experience he adds a wide knowledge of history . . a firm grasp of the principles which make for success in naval warfare, and a gift of lucid exposition which is rare among members of his profession.' Pall Mall Gazrtte,^' "We have to thank the author for an exhaustive study of a most important subject. . , . The public at large, when it comes to the affairs of the sea, would rather hear the voice of the seaman than the voice of the landsman.' With the Bulgarian Staff. By noel buxton, m.p. (Chairman of the Balkan Committee), Author of 'Europe and the Turks.' With 20 pages of Illustrations. Crown Svo. 3s. 6d. net. Thk Times. — ' Mr. Buxton witnessed, perhaps, more than his fair share of the horrors of war and makes no effort to conceal them. It is a pleasure to read a book about the Balkan war which deals, first, with the war, and not even secondly with the pergonal adventures of its author.' The Globe. — ' A very terrible book. It is war with the gilt off. But it is of the most absorbing interest, and no one who wishes to know what war really means should fail to read it,' London: SMITH, ELDEE, & CO., 15 Waterloo Place, S.W. BOOKS OF PRESENT INTEREST. Common Sense in Foreign Policy : A Survey of its Present Outlines and its Possible Developments. By Sir H. II. JOHNSTON', G.C.M.O., K.C.B.. | Author of • The Uganda Protectorate,' ' The Nile Quest,* ' Liberia,' ' A Hihtory of Uie British Empire in Africa,' kc. With 8 Maps. Crown Hvo. lia. 6d. net. Scotsman. — ' The plain iiuvarnisbed opinions of a practicnl mind, of a well traTeIlrpnM» ■■ London: SMITH, ELDER, & CO., 15 Waterloo Place. 8.W. L BOOKS OF PRESENT INTEREST. War and the World's Life. By Colonel F. N. MAUDE, C.B., Author of ' Cavalry: its Past and Future,' ' Evolution of Modprn Strategy from the 18th Century to Present Time.' &c. With Plans. Demy 8vo. 128. 6d. net. The Staxdard says : — 'An original and well-considered attempt to break away from the narrow basis on which too much of our military thought is conducted. The work should be on the shelves of every thoughtful S( Idler or civilian wlio studies the science of war.' The .Manchester Courier says :—' A volume full of instruction and interest. The author writes in a pleasant style, and we gladly acknowledge the ability and industry which have gone to the production ot thij work.' German Ambitions as they affect Britain and the United States. By VIGILANS SED ^QUUS. Reprinted with Additions and Notes from the Speciator. With an Introduction by J. St. Loe Strachey. Crown 8vo. 2s. 6d. net. Now reduced to Is. 6d. net. Daily Mail. — ' The letters deserve the closest study for the light which they shed upon the iuteutions of Germany. ... It is worth the while of every British citizen to master the contents of this extra- ordinary book.' The Way They Have in the Navy. Being a Day-to-Day Record of Naval Manoeuvres. By FRANK T. BULLEN, F.R.GS., Author of ' The Cruise of the " Cachalot," ' &c. Crown 8vo. In paper cover, Is. ; or in cloth, Is. 6d. Glasgow Herald. — ' Very vivid and very realistic, and is sure to be read with keen interest.' Athex^om. — ' A little book which we are able to praise without reserve.' The Riddle of the Sands. A Record of Secret Service Recently Achieved. Edited by ERSKINE CHILDERS, Author of ' In the Ranks of the C.I.V.' Tenth Impression (2nd Edition). With 2 Maps and 2 Charts. Crown 8vo 6s. Academy. — 'Dpals with the discovery, by two young men on a summer holiday, of a German scheme for invading England, and the moral of the book is the need for increased national defence.' Modern Germany : Her Political and Economic Problems, her Policy, her Ambitions, and the Causes of her Success. Bv J. ELLIS BARKER. Fourth very greatly Enlarged Edition, completely revised and brought up to date. Small demy 8vo. 10s. 6d. net. Now reduced to 5s. net. Mr. Charles Lowe, in the Daily Ohroxicle : — • This is one of the t)est books on Germany to which we have been treated for a long time. It should be read by everyone who is interested in the country.' Public Opisiox. — 'The volume impresses us with its thoroughness, its insight and its style.' With a Frontispiece by H. W. STAGG and 10 Portraits. Crown 8vo. gilt top, 6s. Fighting Admirals. By JOHN BARNETT, Author of ' The Prince's Valet,' ' Geoffrey Cheriton,' ' Eve in Earnest,' &c. Aberdeen Frkk Press. — ' A series of sfcirriDg essays dealing with some of the deeds of men whose very names sei the blood surging.' Yorkshire 0bskr\'er. — ' The author gives ns some glorious half-hours, and no one who reads his thrilling pages can fail to be roused to a high pitch ot British enthusiasm.' London : SMITH, ELDER, & CO., 15 Waterloo Place, S.W. ^ 14 DAY USE RETURN TO DESK FROM WHICH BORROWED LOAN DEPT. This book is due on the last date stamped below, or on the date to which renewed. Renewed books are subject to immediate recall. FEB 21 1988 5 4 REC'D LD F EB23'68-UPi NOV 1 7 1977 ^ t^EG. CIR.OCT ^57/ T T\ oi A ArL n -cT General Library ^M^nfi7;1nTd7'fi J University of California (H5067slO)4(6B Berkeley I 'i i;, .(,.( 1 CD5E173aSD UNIVERSITY OF CAUFORNIA LIBRARY •,V inl i