_Lord Ellenborough._ It would be idle to announce to your Lordship, that there is such a rule of practice as that which I have mentioned, unless we meant to abide by it; the rule is, that no application can be made for a new trial, unless all the persons convicted are here: we have acted on that rule this day; and if we were now to adopt a different rule, it might very properly be said, there was one rule for the poor and another for the rich.

_Lord Cochrane._ My Lords, I have briefly to state these facts, 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 know. 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.

Court of King's Bench.

Monday, _20 June 1814_.

_Mr. Gurney._ I move your Lordships for the Judgment of the Court in the case of the King _v._ De Berenger, and others.

[_The Officer called the Defendants, who appeared, excepting the Honourable Andrew Cochrane Johnstone, and Alexander M'Rae._]

_Mr. Serjeant Best._ Upon this occasion I appear only as Counsel for Mr.

b.u.t.t; and before I make the motion which I feel myself called upon, under the circ.u.mstances of this case to make, I take the liberty to suggest to your Lordships, that if I should not succeed in my motion in arrest of judgment, there is a fact which was not proved at the trial, but which it was necessary to prove for the purpose of convicting these defendants upon any count of the indictment, in which it forms a material averment, namely, that there was war between England, and the Allies of England, and France.

_Lord Ellenborough._ I am afraid there are too many statutes which speak of war with France, for the Judges to allow themselves not to have cognizance of that objection.

_Mr. Serjeant Best._ But there is none, my Lord, which refers to any war between England, and the Allies of England, and France. Unfortunately it has been only of late that we have had Allies. I make this application on the part of Mr. b.u.t.t only, and I submit to your Lordships upon the counts on which this defendant has been convicted----

_Lord Ellenborough._ You appear now only for Mr. b.u.t.t?

_Mr. Serjeant Best._ I do, my Lord.

_Lord Ellenborough._ I have made a minute, that on the trial you told me you were Counsel for the second, third, and fourth, defendants, Lord Cochrane, Mr. Cochrane Johnstone, and Mr. b.u.t.t.

_Mr. Serjeant Best._ I am not now Counsel for Lord Cochrane, I am moving merely for Mr. b.u.t.t.

_Lord Ellenborough._ That is a new proceeding, that Counsel shall renounce some clients, in order to serve others.

_Mr. Serjeant Best._ My Lord, Lord Cochrane has desired me not to move on his behalf; and I may state so much for him, that he has no intention to move in arrest of judgment. My other client, Mr. Cochrane Johnstone, is not here.

_Lord Ellenborough._ If you move in arrest of judgment for one, all have the benefit of it.

_Mr. Serjeant Best._ My objections are three; first, taking the third count as it stands, (and the objections apply to every successive count in the indictment) that there is no body of crime alleged, no offence known to the law, the raising the price of the public funds not being necessarily a crime; In the second place, that if there be any crime, which is alleged, the persons who are to be affected by that crime are not particularized; My third objection is, that it is stated, that the object of the conspiracy was, to raise the price of the public funds of _this kingdom_: this kingdom being now the United Kingdom of Great Britain and Ireland, I conceive there is no kingdom of England, but that the kingdom of England is merged in the United Kingdom of Great Britain and Ireland, and I humbly conceive, nothing that is here charged has reference to any funds and government-securities, except the funds and government-securities of that part of the United Kingdom of Great Britain and Ireland, called England.

My Lords, I am aware of the extent to which the decisions p.r.o.nounced on this subject have carried the doctrine, with respect to conspiracy; but I conceive it will not be found there is any adjudged case which goes so far as to reach this transaction, taking it as an abstract proposition, that the conspiracy was, to raise the price of the government funds of this country. Unless your Lordships can p.r.o.nounce that the raising the price of the government funds of this country is a crime of itself, a conspiracy to raise the price of those funds cannot be a crime by itself; but in order to make it a crime, it is necessary to state some particular circ.u.mstance which gives it a criminal character.--I conceive n.o.body will be found to argue, that the raising the price of the public funds, without some side object, must be mischievous to the country, and therefore a crime; so far from that being the case, I conceive the higher the prices at which the government funds can be kept, except in particular cases, the better for the country, because it is upholding the credit of the country.

_Mr. Justice Le Blanc._ It is stated, that they were to be raised on a particular day.

_Lord Ellenborough._ By false reports and rumours.

_Mr. Serjeant Best._ An intention of doing that on a particular day, may be either a meritorious or a criminal action; but what I submit to your Lordships, is, that of itself, it is neither the one nor the other; it is therefore necessary to put on the record something which shall bring the fact within the purview of the law. It is not stated upon this record, that the defendants were possessed of any funds, that they were desirous of selling those funds, and that therefore they meditated a fraud on the particular persons to whom they should sell their funds, by raising the price;--it is merely stated, that the object was to raise the price of the funds, which I submit to your Lordships may be commendable or criminal.

One can conceive many circ.u.mstances in which this might be stated to be a public mischief, and some such circ.u.mstances were stated by my learned friend, who very ably opened this prosecution upon the trial. If the public funds were raised in price on a day on which the commissioners for reducing the national debt would make purchases, that would be an injury to the country, by the commissioners being enabled to purchase a smaller amount of stock for the same amount of money; but there is no allegation of the kind upon this indictment, and in no other way, do I conceive, could the public be injured. If the public had been injured, it was enough to have stated, that what was done, was done with a view to the injury of the public; but all that I find stated upon the record, is, that the defendants conspired and agreed together to raise the price of the public funds upon a given day; and the prosecutors knew there was no purchase made by the commissioners for reducing the national debt on that day; because, as I understand the fact to be, they never purchase on a Monday;--however, all that is material to me is, that the transaction is not so charged upon the face of the indictment. If I am right in this, I am persuaded your Lordships will be of opinion, that this is not an indictable offence.

If I am to be told, there is a distinction made between conspiracy and other offences, I submit to your Lordships, no distinction which has ever been made goes to a length which reaches the present case. I am aware many acts are made criminal, being accomplished by conspiracy, which accomplished by an individual only, would not be the subject of judicial animadversion; but I can find no case (and I have very carefully looked into all of them) which carries the principle on which the doctrine relating to conspiracy is founded further than this; that in conspiracy, though the means may be lawful, yet the end must be unlawful, either as it is mischievous to the public or to individuals; and I can state no case, in which parties have been held guilty of conspiracy, where the end they have had in view has not been either mischievous to the public, or at least to a specified cla.s.s of individuals.

Looking back to the earlier statutes and cases on the subject of the law regarding conspiracy, your Lordships must collect, that neither the legislature nor the judges of the land had the least idea of embracing such a transaction as this, within their view of conspiracy. The older cases, in which the doctrine upon conspiracy has been applied, have been cases described by the statute of 21st Edward I. of persons who have conspired to instigate a criminal prosecution against an innocent individual, and of persons who, for the purpose of supporting their unlawful enterprises, have kept retainers in the country. In modern times, the decisions have come nearer to the present case; but I think I can satisfy your Lordships, there is none that reaches it.

The case in which the doctrine relating to conspiracy has travelled on, if I may so say, embracing a larger compa.s.s of acts, is that of the King _v._ Edwards, 8 Modern Reports, 320. In that case the doctrine laid down is, that a conspiracy to do a lawful act for effecting an unlawful end, is a crime. If the end be unlawful in this case, undoubtedly the endeavour to accomplish it was a crime. But I submit to your Lordships, as the act is stated upon the Record, the end is not unlawful, and that no case can be found which shews, that the end which these parties had in view was an unlawful end. Upon the principle of the case which I have mentioned, which goes far beyond the former cases on this subject, if I am right in stating, that _per se_ there is nothing criminal in raising the price of the public funds, something must be added upon the record to make that act a crime.

Another case is that of The King _v._ Starling, 1 Siderfin, p. 174. It was an indictment for a conspiracy to depress what was called the gallon-trade, (that is, the practice of selling beer by the gallon) and thereby to cause the poor to mutiny, and to injure the farmers of excise; that was stated as the object of the conspirators. They were acquitted of that part of the charge which alleged an intention to cause the poor to mutiny; but found guilty of a design to injure the farmers of excise. The reporter says, after many debates it was adjudged, not that a conspiracy to injure the farmers of excise, speaking of them generally, was a crime--but, that the verdict relates to the information, the information relates to the excise, which is part of the revenue of the king; and to impoverish the farmers of excise would make them less able to pay the king his dues. And so the Court, in giving judgment, say, we must look at the record, to see if we can find out that what is charged upon the defendants be that which must necessarily produce a public mischief; and they say it does in this way; that the verdict relates to the information, and the information to the excise, which is part of the revenue of the country; and, as to impoverish the farmers of excise, would render them less able to pay the king his dues, there appears a public mischief on the face of the record itself. This I take to be a strong authority in my favour; for if the Court, after many debates as it is stated, and having given the subject every possible attention, came to the conclusion, that they were obliged to look at the record, to see whether the case stated on the record was one which necessarily connected the act done with some public mischief, we must necessarily infer from this, that the Court would have been of opinion, that unless that necessary connexion was established by the statement on the record, the judgment ought to be different. If I am not correct in this position, the Court had no occasion to look to the verdict and see whether it related to the information, and to the information, to see whether it had a relation to the revenue: the Court would have said, we must give judgment against the defendants, because it is stated upon this record, that the object of the defendants was, to impoverish the farmers of excise. It is by tracing back the thing itself, by shewing that the farmers of excise are thus made less able to pay their debts to the government, and therefore that the government was to be injured, that the act is const.i.tuted an offence.

There is another case, in Salkeld, 174, The King _v._ Best. The judgment of the Court in that case is, that several persons may lawfully meet and consult to prosecute a guilty person; otherwise, to charge a person who is innocent, right or wrong, would be indictable. The inference is, that upon a charge of conspiracy to do an act which in itself is perfectly innocent, which is not indictable, you must state something upon the face of the record, shewing a mischief connected with it, to make it indictable. I submit to your Lordships, there is nothing upon the face of this record, which does shew any mischief connected with the act which is made the subject of charge. In conspiracy as in every other offence, the means may be lawful; but in conspiracy, the end must be unlawful. It is this which const.i.tutes the only distinction between cases of conspiracy and of any other crime; that although the means may be lawful, the end must necessarily be unlawful and mischievous. I say, it is impossible for your Lordships to collect from any part of this record, that the end sought to be obtained by these defendants was unlawful, as against any Act of Parliament or the positive decision of any Court; or unlawful, as generally mischievous to the public.

It is stated indeed upon these counts, that the act was mischievous to certain individuals; and if the individuals had been named, that would have answered my objection. But I submit to your Lordships, in support of the second proposition which I stated, that this offence, if it be any, is alleged in too general a way to convict any of the defendants.

It would have been otherwise, if it had appeared that they were actuated by any malicious motive against those individuals, or had any clear intention of benefiting themselves at the expense of those individuals; and I may with safety to my client concede this, though I am not driven to it. On the contrary, I beg to state, it does not appear on this record, that the defendants could possibly gain any thing by what they are accused of having done; for it is not stated upon any of the counts, nor is it the fact, that they possessed one sixpenny worth of stock from the sale of which they could derive an advantage: they were therefore doing mischief without any purpose to answer by it.

_Lord Ellenborough._ Brother Best, was it possible to state that their purpose was to injure certain individual persons who should purchase stock, when by no possibility could they know who the persons were that would become purchasers? If that could have been stated, can you suggest any name which in any way might have been inserted?

_Mr. Serjeant Best._ I submit to your Lordship it might have been stated; and the evidence in the cause helps me to suggest an answer to your Lordship's question. Your Lordship will remember, that evidence was given of the accountant-general of the Court of Chancery having made purchases of stock on this day; it might have been stated on the face of this record, that it was known the accountant-general of the Court of Chancery would purchase stock on the day in question, for he purchased most days, and that the offence was committed with a view to injure the said accountant-general, or the persons in whose behalf he purchases.

_Lord Ellenborough._ I do not know, that in the course of his office he is directed to purchase on account of certain named individuals, on a given day; if he is not, even so the allegation could not be precise.

_Mr. Serjeant Best._ The stock is purchased, my Lord, to the credit of a particular cause, the accountant-general being the agent in the transaction for the suitors in that cause. Therefore the allegation might have been, that it was to injure the accountant-general, in his character of agent for those persons on whose behalf he purchased stock on the particular day. And this brings us to the true character of conspiracy. I submit to your Lordship, this act could only be made conspiracy, by shewing that the defendants possessed stock, and by stating on the indictment, that possessing stock, they conspired to raise the price of the funds on a particular day, and that when raised, they sold their stock to certain persons specified. Suppose they knew of persons who were going to purchase on this day, and with a view to make those persons pay more than they otherwise would, they did that which is charged upon this indictment; that would clearly be an indictable offence. It is not the difficulty of bringing the case within the law that furnishes an answer to the objection; if the law is defective, your Lordship would recommend it to the Legislature to remedy the defect, by making a new law.

_Lord Ellenborough._ Impossibility is some answer in point of law.

_Mr. Serjeant Best._ Your Lordships may be protecting gamblers as infamous as any of these defendants; you may be giving your support to prosecutions inst.i.tuted by one set of gamblers against another, if this indictment is supported. A fair holder of stock could have no difficulty in coming by indictment, and stating, I was compelled by circ.u.mstances to lay out a sum of money in the public funds on a given day, the day on which this transaction took place, and I paid so much per cent. more for what I bought. If it is necessary to const.i.tute conspiracy, that the intent be to injure that person who in the event is injured, then it is impossible to support this indictment. I put it most strongly against my clients when I say, they meditated a fraud upon all who should purchase stock on this day; but to use the criminal law of this country, for the protection of those who honestly purchase stock, and not to support a prosecution brought by one set of gamblers against another, your Lordships will require it to be stated on the face of the indictment, who they were that were injured.

_Mr. Justice Bayley._ Suppose the conspiracy had been stated in the way it is, but the allegation had gone on; that by reason of the said conspiracy, A. B. and C. who on that day were obliged to purchase stock, were obliged to pay a larger sum than they otherwise would have paid?

_Mr. Serjeant Best._ That would have answered my objection, and that is the way in which it should have been stated; because then your Lordships would see, you were raising the arm of criminal justice to protect those who were the objects of its protection.

_Lord Ellenborough._ Your argument goes upon this supposition, that the description of persons to be affected by a criminal act, may lessen its criminality, which it does not.

_Mr. Serjeant Best._ But I submit to your Lordship, there must be something to be gained on the part of the actors, moving them to injure those who are capable of being injured by the act which is done. No such thing is stated upon any part of the indictment. A conspiracy may be complete without any act, but there must be an intention. I say, the intention here, is too generally stated; strike out all but the words, "conspired to raise the price of the public funds," and I ask your Lordships whether it would be possible to p.r.o.nounce any judgment upon it.

_Mr. Justice Dampier._ How could the object have been stated with more particularity, with reference to a future event, than that it was to raise the price of the public funds?

_Mr. Serjeant Best._ I do not state it to be necessary that any damage should actually follow, but damage must be meditated by the conspirators, either a damage which aims at the public at large, or at some individual. It could not have been stated, nor is it stated, that any damage was aimed at the public at large; was any meditated against a part of the public? they must be individuals.

_Mr. Justice Dampier._ All the public could not be named; and individuals could not be named, because of the impossibility of knowing the individuals.

_Mr. Serjeant Best._ I submit to your Lordship there could be no difficulty in that. If the indictment had been preferred before the 21st February, your Lordship's observation would be unanswerable; but after that period, the prosecutors could have no difficulty in obtaining the names of individual purchasers from the books of the Stock Exchange.

_Mr. Justice Dampier._ The crime was complete before the 21st of February.

_Mr. Justice Le Blanc._ If the conspiracy was, by false rumours to raise the price of the public funds on a certain day, with a view to oblige persons who should purchase into the funds on that day to pay an increased price, the crime would be complete if the funds were raised on that day, though no person should purchase a halfpenny-worth of stock; in like manner as conspiring to raise the price of commodities in a market, though no person should purchase, would still be a crime.

_Mr. Serjeant Best._ The commodities in a market are articles of necessity, which, I apprehend, makes a distinction.

_Lord Ellenborough._ Whether it be an article of necessity, or if universal sale, comes to the same thing. Besides, as to not stating the mult.i.tude, one would think we had forgotten the number of cases which have been decided on charges which are in their nature mult.i.tudinous; as for instance in barratry, or the inciting persons to inst.i.tute and maintain suits; in those instances you need not state the individuals injured.