Cochrane had already had occasion to retain Richard Gurney as counsel for other purposes. Though Gurney later denied it, Cochrane described visiting him and confiding the whole matter of the pending Stock Exchange trial and the nature of the defence to him. Gurney had not, of course, been briefed for the defence at that point but he was clearly a possible choice.
Long before the trial took place, there were two developments which Cochrane and his friends found ominous. The Stock Exchange entrusted the prosecution, rather unusually, to an Admiralty solicitor, Germain Lavie. Not only was he an Admiralty solicitor, he had been deeply involved in the Gambier court-martial and was responsible for the production in that case of the strange charts with their mysterious "rocks" and "shoals". Cochrane denounced the "collusion between a high official at the Admiralty and the Committee of the Stock Exchange". But there was an equally disagreeable surprise in store for him when he discovered that the prosecution at the trial was to be led by no other than his former counsel, Richard Gurney.
Strictly speaking, there was nothing illegal in all this, and if Cochrane had given an early advantage to his enemies this was in part the measure of his own inability to fight on equal terms in courts and debates. The other arrangements for his trial were just as unpromising but, once again, there was nothing in them over which he could reasonably quarrel.
The trial judge was Lord Chief Justice Ellenborough, defender of Warren Hastings as Edward Law. Son of a bishop, his dry and precise Cumberland intonation reflected an attachment to the formalities of his profession. To the Radicals, he was the violator of the spirit of the constitution who in 1806 had been Chief Justice and political cabinet minister simultaneously. He was no longer in the cabinet at the time of Cochrane's trial, but the memory remained bitter.
Ellenborough's impartiality was doubted when he presided over the trials of such Radical publishers as Leigh Hunt and his brother John. In March 1812, the Morning Post had published a grotesque eulogy on the Prince Regent, announcing:
You are the Glory of the People - You are the Protector of the Arts - You are the Maecenas of the Age. Wherever you appear, you conquer all hearts, wipe away tears, excite desire and love, and win beauty towards you - You breathe eloquence - You inspire the Graces - You are an Adonis in loveliness!
In the Examiner on 22 March 1812 Leigh Hunt reminded his readers of the truth behind this ludicrous sycophancy.
What person, unacquainted with the true state of the case would imagine in reading these astounding eulogies, that this "Glory of the People", was the subject of millions of shrugs and reproaches! . . . that this "Conqueror of Hearts" was the disappoint er of hopes! - that this "Exciter of desire" (bravo! Messieurs of the Post) - this "Adonis in loveliness", was a corpulent man of fifty!
For good measure, Leigh Hunt added that the Regent was, in truth, "a violator of his word, a libertine over head and ears in debt and disgrace, a despiser of domestic ties, the companion of gamblers and demireps, a man who has just closed half a century without one single claim on the gratitude of his country, or the respect of posterity". The Hunts were prosecuted for a seditious libel, though they saw more signs of guilt in Ellenborough's behaviour.
He knew that we were acquainted with his visits to Carlton house and Brighton (sympathies not eminently decent in a judge) and with the good things which he had obtained for his kinsmen; and we could not help preferring our feelings at the moment to those which induced him to keep his eyes fixed on his papers.46
As the Hunts went to gaol for two years, Tom Moore imagined the Prince drinking Ellenborough's health among his cronies.
A compliment too to his Lordship the Judge
For his speech to the Jury - and zounds! who would grudge
Turtle soup, though it came to five guineas a bowl
To reward such a loyal and complaisant soul ?
We were all in high gig - Roman Punch and Tokay
Travelled round, till our heads travell'd just the same way,
And we cared not for Juries or Libels - no - damme! nor
Ev'n for the threats of last Sunday's Examiner47
Such was the reputation of Ellenborough among the Radicals, a creature of the ministry and tool of the sinecurists and placemen.
However undeserved it may have been, Cochrane felt every reason for looking on him as a natural enemy.
In such prosecutions, and indeed in the prosecutions of authors and publishers too, the crown had the right to demand a special jury. This was anathema to Cochrane and the Radicals as being the very antithesis of democratic justice. The panel from which the jury was chosen consisted of forty-eight city merchants selected by the Sheriff of London. The lists were revised in 1817 but, until 1816, the same men were trying case after case. Two hundred and seventy-four of them tried a hundred cases that year. Forty of them were summoned twenty times during the year, and fifty of them more than ten times. Whether, as Cochrane contended, the juries were packed by the authorities and the chosen members inevitably biased against the accused is a matter of speculation. At the very least, they were carefully selected.
Cochrane was defended by Serjeant William Best, who consulted with lawyers for the other defendants and agreed on a joint defence rather than separate trials. In retrospect, this was much to Cochrane's disadvantage. Though he would never admit so publicly, he must now have realised that Cochrane-Johnstone was one of the prime movers of the fraud, as indeed appeared by his uncle's later action. It was suggested subsequently that Cochrane, to some extent, sacrificed his own interest in the hope of shielding his uncle, a suggestion which he never refuted. However, the joint defence was a bad strategy.
The day before the trial began, Cochrane also noticed a mistake in the brief. One of his three servants, Mary Turpin, was credited with saying that Berenger's uniform at the time of the visit had been red whereas what she had actually said was that it was green, as appeared in her affidavit.
The trial opened in King's Bench, at Westminster, on 8 June 1814. King's Bench was nothing like the gladiatorial arena of the stereotyped criminal court and, indeed, it had much more the air of a court of appeal. The mediaeval hall with its high windows and carved figures in their niches was crowded with lawyers in wigs and gowns rather than by eager members of the public. Ellenborough sat at one end, his bench no more than a high desk, at which he perched like a clerk in a counting house. Below and in front of him, the wigged clerks with quills and parchments clustered at their table, a tall case of law reports to one side of them. On either side of the well of the court rose high boxes, one for the jurors and one for the witness giving evidence. Beyond that, several semi-circular rows of seats accommodated the watching counsel, some having a part to play in the case and the rest learning by example. A barrister who examined a witness or addressed the jurors did so from the well of the court, judge, witness, jurors, and watching counsel rising high above him on every side. Behind Ellenborough, a tapestry of the lion and the unicorn blazoned the royal coat of arms the width of the courtroom wall, with velvet hangings on either side. To that extent, the sense of theatricality was not entirely absent.
The other oddity of King's Bench trials was that the defendants were not necessarily required to be present. In this case, Cochrane chose not to appear. If convicted, he would be called upon to appear for judgement in a day or two. That was time enough to stand before his accusers. In this practice the English law appeared lax and easy-going, bloody and vindictive though it might be in other respects. Cochrane-Johnstone had already considered the possibility that a man might be convicted but whether or not he could be found for judgement was a quite different matter.
At 9 a.m., Gurney rose and opened the case for the prosecution. It was soon apparent that the accusations against Cochrane rested on three points. He had benefited financially from the rises in the value of Omnium. He had admitted giving Berenger a partial change of clothing but, according to the prosecution, he had lied over the colour of the uniform in order to suggest that
he had no reason to suspect Berenger of anything unusual. Bank notes, or their proceeds, which had originally been in his possession were found on Berenger, and were presumably part of the sum paid to him by the chief conspirators for acting his part in the fraud. It hardly seemed that any of these bases of accusation would stand close examination. Cochrane had only benefited from the rise in Omnium by his standing instruction to sell on a 1 per cent rise and if a conspirator he had signally failed to exploit the fraud. As for the colour of Berenger's uniform, he was supported by his servants and, later, by other men who were not personally known to him. Apart from anything else, Berenger had travelled across London in a hackney coach with the blinds drawn. He had ample time to change and, though he might have started the journey in red, he could well have been wearing green by the time that he reached Cochrane's lodgings. As to the notes found in Berenger's possession, John Bilson of the Bank of England, and other bank witnesses, gave evidence that they must have passed through other hands, those of Butt and Cochrane-Johnstone, before reaching Berenger. Indeed, they had begun in Cochrane's hands as notes of large denomination and had ended as one-pound notes with Berenger. Serjeant Best, for Cochrane, had no trouble in disposing of this part of the prosecution.48
Gentlemen, I am sure, therefore, that if I have made myself understood upon this part of the case I have completely released Lord Cochrane from the effect of this evidence, for though the two large notes were once in his hands, those notes were never in the hands of De Berenger. The notes found on him were the small notes given in exchange for them at the Bank and these were given to Mr Butt, and not Lord Cochrane.49
The prosecution case was reduced to the fact that Cochrane was a relative of Cochrane-Johnstone, that he had borrowed money from Butt, that he had gained from the sale of Omnium, and that he had lied over the colour of Berenger's uniform. In order to convict him in respect of this last point, Gurney produced as a witness William Crane, the driver of the hackney coach which had brought Berenger to Cochrane's house. He swore that Berenger had worn the red uniform of a staff officer and had still been wearing it when he entered the house. If this were true, Cochrane must have seen it as an imposture at once and would certainly have been guilty of aiding a deception if he helped Berenger to carry it through by providing a change of clothes.
Crane's evidence was of such importance that Cochrane and his lawyers were remiss in not finding out a little more about him. As lately as 25 May, The Times reported him as having been banned from driving a hackney coach for three months because of his ill-treatment of the horses and his abusiveness towards a man who reproved him for it. He was twenty years old at the time of Cochrane's trial and was already a figure of some notoriety. When the evidence he gave was published, seven independent witnesses came forward, dismayed at what they read, and swore affidavits before the Lord Mayor. They were too late to give evidence at the trial and, in any case, the judiciary and the House of Commons ignored them. Two of them, a butcher and a fishmonger, saw Berenger enter Crane's coach. His greatcoat was open and, even at this point, they saw clearly that he was wearing the green sharpshooter's uniform. It had been argued that, since there was some red on the collar of it, a sharpshooter's uniform might be mistaken for a red one if the greatcoat was buttoned and only the jacket collar appeared. But this hardly excused Crane if the coat was open.
In any case, the five other affidavits were even more instructive. Charles King, a stable-keeper in Westminster Bridge Road, was told by Crane's father that his son was "going after the money" offered as a reward by the Stock Exchange. Two more witnesses swore that Crane told them he was going to take his oath that it was Cochrane whom he had driven as "Du Bourg". He would say that he knew Cochrane from having driven him a score of times to the Opera and other amusements. But Cochrane had only been to the Opera once in his life, as Crane was warned, and the story was abandoned. But Crane was not so easily to be defeated and had determined on whatever story would pay him best. This proved to be that Berenger, in a red uniform, was the man he had taken to Cochrane's house. As Crane remarked bluntly to separate witnesses, who swore the truth of it before the Lord Mayor, "I will swear black is white, or anything else, if I am well paid for it." Someone had evidently paid him well and, whatever the reason, official favours continued. In 1826, he was sentenced to seven years transportation for robbery, but after three years he was mysteriously pardoned and set free.50
The prosecution case was long and involved, lasting from 9 a.m. until 10 p.m. Serjeant Best, Cochrane's counsel, had now been in court for thirteen or fourteen hours that day and, like his colleagues, he was more than ready for an adjournment. To his dismay, he was told by Ellenborough to proceed at once with his defence. When there were protests at the unfairness of this to Cochrane and the other defendants, Ellenborough merely said, "There are several gentlemen attending as witnesses who, I find, cannot without the greatest public inconvenience, attend tomorrow." As a matter of record, it was the convenience of Lord Melville and Lord Yarmouth which took precedence over the presentation of the defence.51
Best rose and addressed the jury on behalf of Cochrane, Cochrane-Johnstone, and Butt, repeatedly demonstrating the feebleness of the case against Cochrane himself. He was still speaking after midnight. It was shortly before 1 a.m. when Ellenborough called on James Alan Park to address the court on behalf of Berenger, and to bring forward an alibi according to which the defendant was supposed to have spent the night of 20-21 February in bed in the King's Bench prison. An hour later, Serjeant Pell rose to speak on behalf of the three lesser defendants, concluding his address at 3 a.m. Only then did Ellenborough adjourn, announcing to the weary occupants of the smoky, candle-lit courtroom that he would sit again at 10 a.m.
By the next morning, the defence was in something of a dilemma.
If no defence witnesses were called, then it was defence counsel who had the last word to the jury. But if defence evidence was produced, it was the prosecutor who had the final right of reply. Best had decided that evidence must be called, but having made his choice it was arguable that he exploited it badly. Lord Melville and others were called to prove that it was Cochrane's uncle Alexander who was Berenger's patron and that Cochrane's only connection was in offering to ferry Berenger across the Atlantic from Portsmouth in the Tonnant. But the main point at issue was still whether Berenger had arrived at Cochrane's house in the red uniform of a staff officer or in his own green uniform of the sharpshooters.
Of those who could support Cochrane's claim, Isaac Davis had been despatched to Gibraltar on H.M.S. Eurotas, though Cochrane had informed the Admiralty three months before that he was a witness in the matter. The defence lawyers had wrongly copied Mary Turpin's evidence and presumably expected that, if called, she would swear the uniform was red. Thomas Dewman, the only servant called, was not even asked about the colour of Berenger's uniform. Worse still, Serjeant Best suggested to the jury that Cochrane had perhaps made a mistake over the matter of the uniform and, being accustomed to see Berenger in green, had thought the uniform was green when he came to make his affidavit, whereas it might have been red.52
Whether it was exhaustion or confusion occasioned by the protracted sitting, or merely an error of judgement, Best and his colleagues had given away a vital part of Cochrane's case. For Cochrane-Johnstone and Butt there could be little defence.
As the second and last day of the trial dragged on, Henry Colthurst, clerk to Cochrane's solicitors, hurried from the court to Green Street, where Cochrane was waiting. He delivered a message from Henry Brougham, who was in court, warning him urgently to expect the worst. Cochrane was dismayed, and asked whether Mary Turpin and others had not been called on the matter of the green uniform in order to vindicate him. He was told that his suggestion "was submitted to Counsel and not approved of by them". Referring to his solicitor, Cochrane said, "Mr Parkinson has put his foot in his case ... he has botched his case ... it is cruel in him."
But there was nothing to be done, the
case for the defence was closed and Ellenborough was summing up.
"Mr P. should have done as I instructed him," said Cochrane helplessly. "I am to be the only sufferer, if convicted."53
Not only was Ellenborough summing up for a conviction of the defendants, Cochrane included, but he was doing it with relish. Referring to Berenger's visit to Cochrane and the subsequent discovery of the uniform in the Thames, Ellenborough announced, "You have before had the animal hunted home, and now you have his skin." The State Trials account calls Ellenborough's style, on this occasion, "a lofty tone of scorn and irony, and contempt, never suggesting a doubt".54
On the subject of Cochrane's truthfulness, Ellenborough accepted the evidence of William Crane. For a hundred years afterwards, there were those who complained that the Lord Chief Justice was a scrupulous judge, much maligned, who had given the defendants every benefit of the doubt. In the report of the trial, published some while after the case, Ellenborough is made to say that if Berenger arrived in his red aide-de-camp's uniform with decorations, and if Cochrane saw it and did nothing, he would be party to the deception. But, according to The Times report of 10 July 1814, taken in the courtroom, Ellenborough's language was far more direct. Berenger had worn the red uniform, Cochrane had lied on oath, and was almost inevitably one of the conspirators.55
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