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Proceedings of the court of directors and of a secret select committee appointed by the court ... 2d May 1827, to investigate transactions connected with an abuse of patronage; together with a report of the trial in the Court of king's bench online

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Online LibraryEast India CompanyProceedings of the court of directors and of a secret select committee appointed by the court ... 2d May 1827, to investigate transactions connected with an abuse of patronage; together with a report of the trial in the Court of king's bench → online text (page 13 of 17)
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Brous/iam. of in the case ; butj on the contrary, there is evidence that he never had bis
mind crossed by the suspicion. My learned friend said he had a knowledge.
No, he never said that: he knew his case would not bear him out in that ;
but he had the means of knowledge, he had guilty means of knowledge, or the
means of guilty knowledge. I may have the means of knowing a thing, and
if, in a question of civil rights, I have shut my eyes voluntarily and have not
taken pains to inform myself, the circumstance of my wilful ignorance, arising
from my shutting my eyes, must come against my pocket, and I must pay
daniages. But it is new to me, and I think to his Lordship, who has had
much more experience than 1 have in tljese matters, although mine is not of
yesterday. 1 have had some experience upon subjects of this sort, but 1
never heard of a man being chargeable with a crime because he had the
means of knowing: not that he knew it or suspected it; not that he was
aware, and wilfully lent himself to a criminal act being done, but he had the
means if he chose to use them. He might have sent Mr. Lavvford, or another
attorney, to sift people : he might have gone to Devonshire or Brussels after
Dr. Back : because, having the means of knowledge, if he had used those
means he would have discovered there was a traffic in his patronage ; and if
he did not make use of those means, he is guilty of knowing, because he
might have known, and of conniving, because he might have prevented, and
of participating and of abetting the other parties in their guilt, because he
had the means of knowing, and if he had used those means he might have
known, and if coming to the knowledge he continued to connive, just as he did
when ignorant, then that connivance, owing to that knowledge through those
means, would have amounted to abetting. That is the argument, that is the
logical nature of the argument, and the fairness of the argument. I will shew
he did not do that. The moment he comes to know it or suspect it, he says,
" here is an irregularity here : 1 find there may be something wrong if I do
" not look sharp and scrutinize the whole thing." But that is not the way.
I urge that fact, and that last fact, came out, to the wonder of any man who
had heard the case opened by my learned friend, or had heard the case tried

at



COURT OF KING'S BENCH.



149



at all, and had seen this srallant officer, this respectable East-India Director, a ^'^'^'^

' o ' I . ot King s

worthy and an honourable nmn, as his friends know him to be, put upon his Bench.
trial for a corrupt (for it is corrupt, if at all) and wilful sufferance of his "J^
patronage being used by a set of swindlers, for aught I know, whom he knew Brougham.
nothing about, whose names he never heard, and of whom he knew no more
than Dr. Back, whose name he never heard of at all till it was mentioned
by Mr. Sutton. All this is found to be proved by the case laid before you by
the evidence. One word upon which I am going to submit to you, if the
attention you have already bestowed upon it, and the sagacity you bring to
the sifting of it, renders one single comment upon that evidence needful.

Now observe. Gentlemen, Mr. Sutton was a neighbour : Mr, Sutton was
an electioneering coadjutor, and associate and canvasser for this gentleman.
Mr. Sutton asks him for a cadetcy, which he receives; and again asks him
for a cadetcy, which is the one in question, which he never obtained, but
was put in the way of obtaining. I call upon you attentively to observe that.
Have you not the evidence of Dr. Back here, the remarkable evidence of Dr.
Back, in this respect a witness of mine though a witness for the prosecution,
that when he was walking about (and 1 do not wish to press hard upon the
character of Dr. Back : he may be a respectable man for all that has appeared
here ; men are a little lax when they are anxious to provide for young men,
when they have large families. I do not justify it : it is not harmless to
society ; but it is very different to persons selling offices and deriving a profit
from the sale of offices, which should be kept sacred to the public) — but Dr.
Back says, and nobody can doubt it, that when he was walking about,
waiting for some steps of this negociation to be carried through, " while we
" were walking near the India- House, in a street by the side of it, Sutton
" said, he hoped we had not been found out : if we were, he was a ruined
" man, and would lose his friend." Is that the speech of a man who had the
least idea in his mind that his friend knew of it? Why, is it not self-evident,
he was saying to Dr. Back, his associate in this traffic, *' pray take care : I
" hope to God we shall not be discovered ,• if we are, I shall lose my friend.
" I have been trafficking with his patronage; I have been abusing, foully
" abusing the confidence he reposed in me, and he knows nothing of it. He
" still confides in me; he trusts me. 1 shall be ruined, and lose that friend,

the



11)0



PROCEEDINGS IN THE



Court " the instant I am found out by him. I have abused his confidence hereto-

Bench. fore, liud am now doing- it." That is my case. You have heard that plain

"rr and distinct admission, forming a part of the case for the prosecution against

Brougham. Captain Prescott, forming a part of the great transaction against Sutton,

upon which the whole is built. A part of that is a declaration by Sutton, in

a moment of alarm, that his friend knew nothing about it ; and if he did he

would be ruined, and his friend's eyes would be opened to his conduct.

Then it is said that Colonel Toone is a witness, to prove that my client.
Captain Prescott, borrowed, in the usual way, a cadetcy from Colonel Toone,
and filled it up irregularly, and wrote the recommendatory letter, or rather
signed the recommendatory letter, and vouched for facts not within his own
knowledge. And those are the only circumstances upon which this suspicion
is attempted to be built, for the purpose of connecting Captain Prescott with
the guilt of these parties. This will require no long observation : it is the
only part that remains to be commented upon. I speak with great respect of
Colonel Toone, with the greatest respect. He is an officer who has grown
grey in the service of his country ; who, by his own account, has been thirty
years an East-India Director; who from the rank he has in the army, which,
it is matter of common notoriety to all of us, a man never rises beyond after
he comes home, save one step, it will not be disputed he must have come
home a colonel, or at least a major, thirty years ago: and I think I assume
very little when, without venturing to ask a question that might seem indeli-
cate as to his age, 1 tell you he cannot possibly be (I am sorry for it ; for a
more venerable looking officer, or a more worthy or a more gallant man, I
have never met with in a court of justice to all outward appearance, and I
believe that is the character he universally bears), when I tell you he is near
fourscore years of age : for a man will not be made a major or a colonel, and
an East-India Director, on the bright side of fifty, and he has been thirty
years in that eminent station.

If I was to say there was any thing confused in the evidence of this gentle-
man, or any thing in the slightest degree betokening a loss of memory, I
should say what your experience of his evidence would contradict, and my
own feeling upon the subject would flatly, and even loudly disavow ; but
when a man does not take a note at the time, which he did not, and when he

did



COURT OF KING'S BENCH. |o]

<]id not suddenly afterwards have his memory refreshed and corrected^ and .^"^^J",
directed to the particular facts and the materiality of words, which weigh Bench!*

much in such a case ; when, at a distance of somewhat about a year, he is

called upon to swear to those precise expressions, I must say that it does Brojfham.

enter into my mind, that when, at the time he is called upon to swear, he is

about fourscore, as far as regards the perfect accuracy and minute nicety

and correctness of recollection of a fact, or rather a conversation, which

lasted a minute or two altogether (for lie told it in about a minute), that was

holden a year ago, and of which it is not pretended he took down any note

of what dropped in conversation, which happened recently, during the last

year of his life, when in all probability he would more accurately recollect

what had happened twenty years before, by a common rule of memory, only

see upon what a narrow point, upon what a very evanescent pivot, if I may

use the term, the case turns as it regards the evidence of Colonel Toone. A

single pause, a comma, a particle, a change of a word, makes all the difle-

rence between nothing at all, and that upon which my learned friend alone,

or almost alone, relies in this case. He Krst said, " you know this gentle-

"man:" he afterwards corrected the expression and changed it. When my

Lord asked him what was the question, or what elicited that answer, he

changed the word : he at first said, " you know the gentleman ;" but he

afterwards said, " you are acquainted with the gentleman." May 1 be

allowed to say, both my learned friend and myself observed it.

Lord Tenterden.—Yeii, he said first, "^I asked him, do you know the
gentleman." That mode of asking a question prevails very often, and I hear
it very often in this part of the country.

Mr. Brougham. — A man very often says, "do you know such a one?"
Does any man believe that Captain Prescott would say, for the sake of his
friend Mr. Sutton, that he would immediately begin to say to Colonel Toone,
" Oh, acquainted with him, I know him of my own knowledge." That is
what is meant to be said ; not, " i know him through Mr. Sutton," but " of
" my own knowledge I know him." Do you think Captain Prescott would,
say, " I know him perfectly well; he is one of the finest youths in England.
" 1 know his father ; he is a respectable clergyman in Devonshire." 1 have
no doubt Captain Prescott said that. He was asked, I dare say, " Is he a

" respectable



iSg PROCEEDINGS IN THE

Court " respeclahle man ?" Yes, he is a respectable clergyman : he had been in

Bench. Devonshire. My learned friend opened him as an eminent clergyman, and

-— • tutor to the Duke of Richmond's son ; and notvvithstandiu"- all that has
Mr. . "

Bnmgham. passed^ he is a respectable man, and I know that his family is the family of a
respectable clergyman in Devonshire, and it turns out that he is so. The
word is used in that sense. I beg you to recollect that. Suppose he had said
so, suppose he had said this, this would be no evidence to convict him of this
foul and infamous offence. But I utterly deny that he said it, or that any
man in his senses could have said it, without any one possible motive for so
doing. But what he did say was, what he must have said, was the truth,
that he knew him through his then friend, whom he then did not know, whom
he now knows, whose authority he will take care of trusting to again, whom
lie will never allow any more to abuse his confidence ; because, knowing him
now, and being ignorant of him at the time, he believed what Mr. Sutton
told him, as I should a man I had known much less of; people under much
lighter obligations than my learned friend stated that Captain Prescott had
been under to Mr. Sutton. Somebody must get his cadetcies. He is not
allowed to traffic in them ; is he to give them to friends or strangers ? is he
' to give them to one to whom he lies under no obligation, lest he should come
under the severity of my learned friend's observations, of a person who does
not traffic in office for lucre or gain, but gives away offices as a reward for past
services ? Is he, under that strict and fantastical feeling of morality, to look
out for people whom he does not know. He is to take the representations of
others as to the individuals : upon that he is to act, and so he does.

Now, Gentlemen, see what follows, and this is the only other point ; but
the ground is cut from beneath the prosecutor's feet. I mean the last witness,
Mr. Abington, who knows the mode in which the appointment was filled up.
The usual way when I borrow of any one, suppose we were both Directors
(I wish we were) ; when I borrow of you a cadetcy, I, and not you, nomi-
nally make the appointment ; and when I repay it to you, you, and not T,
make the appointment : and accordingly that was followed ; and if that had
been followed in this case, you would never have heard so much as you have.
This was followed in the case of the February appointment, because that
worthy officer of the Company, Mr. William Abington, the principal in that

department.



r.
Brougham.



COURf OF KING'S BE NC-H. JSS

department, who is clear and distinct in his mannei' (much moi*e so than the CiMtt
deputy. Mr. Sharp), he knew how to fill it up^ and the appointment is filled "*' King'*

up in Mr. Abington's hand. He filled it up rights and sent it to the right per-

^n. It being a borrowed appointment. Captain Prescott signed the nomi- ^^^^^
nation, and Sutton signed the recommendatory letter,

But, Gentlemen, now comes the appointment in question. He had pro-
mised Mr. Sutton a cadetcy. He is told it presses ; that the young man is
within two months of being twenty-two. My learned friend said five
months. He was of age in October, according to his father's account, and
this happened in April : and, says my learned friend, he ought to have known
it from the parish register when it came to be looked into, or he ought to
have observed, by the appearance of the young man, whether he wanted
two months or five. Here is another wilful and knowing misrepresentatiorr-
It turns out he wanted five months. He hurried the appointment. He goes to
the India-House, and gets Sharp, the man whom you have seen to-day, so
clear in his recollection and his manner of expressing himself, that he an-
swered a question three different times three different ways. The gentleman
comes to him and he say?, '' this is the way you ought to do ;" but, says the
Captain, " I do not think so. I think that is irregular ; will not it be irre-
" gular ?" Suppose Captain Prescott (and that is the supposition upon which
the whole of the case is bottomed), suppose Captain Prescott was anxious
to deviate from the regular and usual way ; that instead of giving the nomi-
nation in his own name, and Sutton signing the recommendatory letter, he
was desirous of giving it in Colonel Toone's name, what business had he to
raise objections, when Sharp, without any knowledge on his part, happened,
luckily for his purpose, to fall into the snare, and offered himself a willing as-,
sistant to this operation, to change the name, to keep back Sutton's name.
That is the story, that it would look ugly, Sutton appearing twice, when
Sharp had enabled him to accomplish it and to fill it up in this way. Colonel
Toone giving the appointment, he signing the recommendatory letter. I
do pray you to attend to this ; for, in my mind, it is quite decisive upon the
question. The whole question turns upon this, aye or no : did not Captain
Prescott voluntarily sign a recommendation, stating in that recommendation
what Mr. Sutton might know of his own knowledge, what Sutton might have

X told



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Court

of King's

Bench.

Mr.
Jiroiisham.



told him upon his knowledge, but signing it as if he knew it himself. He did so,
or did lie not do so, is the question ; for the purpose of keeping back Sutton's
name from the India-House, and enabling Sutton to sell it. How could he pos-
sibly stand better in thje execution of this purpose, than when Mr. Sharp comes
and voluntarily throws himself into his hands as an agent for this purpose.
" Pill up and nominate, and you sign the recommendatory letter." What is the
answer of this honourable man, clearly shewing he did not harbour a thought
of taking any such advantage, that he had no such scheme in view, and had no
wish to step beyond the ordinary course of promotion, or to deviate a mo-
ment to favour Sutton, and make Colonel Toone sign, though himself recom-
mended instead of Mr. Sutton ? What does he do ? He says, " will not it be
"irregular?" to Sharp. He objects to Sharp^s plan. He says, "this is
" not the right plan : will it be regular or not ?" That is said to be, ac-
cording to the scope of my learned friend's argument, the very object.
He makes all the difficulty and raises the objection : Sharp would never
have dreamt of it. Sharp proposed it. He says, " will not it be irregular,
" Sharp ?" Sharp says, " Yes ; but, upon the whole, I think you may
" do it in this way, because Colonel Toone gives the appointment, and you
" know something and Colonel Toone does not. Colonel Toone knows
" nothing of the individual, and he must nominate, and you must sign the
" letter." Then he proposes another thing : but about that there is so much
obscurity that you cannot rely upon it ; for you see that Sharp is the witness
for the prosecution, whose want of clearness, if it remained in the case, must
puzzle the prosecutor's case and not mine. Mr. Sharp's testimony, if it is
fetal to my learned friend, must rend the fabric of the prosecution, and not
the fabric of my case. Sharp, take him as a right witness or a wrong wit-
ness, as a clear witness or a confused, he says he proposed writing a letter to
Colonel Toone. 1 do not say what follows : there is some doubt upon it ;
but it is clear he proposed writing the letter to Colonel Toone, to which
Captain Prescott added, " 1 have put Colonel Toone to so much trouble I do
" not wish to put him to any more." Then it is made out in an incorrect
way, which Mr. Abington never would have done, which Mr. Abington in
February did not do ; but owing to Sharp's blunder, and Captain Prescott
not wishing to give unnecessary trouble to Colonel Toone, it is made out in

an



■&



COURT OF KING'S BENCH.



m



an irregular way, which leads to difficulty and delay. Now then, having-
come to this part of the case, the evidence of Colonel Toone and the evidence
of Mr. Abington cuts down all the ground they had to stand upon. Colonel
Toone got a little annoyed. Something occurs to him afterwards, and he
writes a letter to Captain Prescott, which is given to Captain Prescott's servant,
and the servant is not called to shew that Captain Prescott received it. I can-
not call Captain Prescott to say he never received it. He has said, and now
says, he never received it, and that is just as good as their saying they de-
livered it to the maid servant. But suppose he received that letter (I will
make a present of that to them), what was it ? It was a letter stating Colonel
Toone was difficulted about the business, and desired nothing further to be
done until the young man was seen and inquired about. What is my learned
friend's charge ? That we had the means of knowledge, that we were aware
of the workings of his mind : and notwithstanding we were aware of his
puzzle, and the anxiety, the workings, the doubts and suspicions which he
never declared (he never said, " all is not right ; take care, inquire, examine
" your friend Sutton, whoever it is, he may have deceived you ; sift the
" matter, use your means of knowledge"); but because he said some-
thing that indicated he had a doubt about it, and because he wrote a letter
desiring that the thing might be partially stopped, we are to be presumed
guilty. How does the thing turn out ? Colonel Toone writes to Mr. Abing-
ton to stop the appointment. He is afraid that that might not reach, and he
sends a second letter. What does Mr. Abington say .? that early in the week
(he will not say whether Monday or Tuesday, but before Wednesday), he
was certain Mr. Prescott himself said, " 1 desire that this appointment may
" be stopped : let nothing further be done in it : on no account let the thing
" go in to the Board ; on no account let the young man pass until he is seen,"
by vbom ? " by Colonel Toone," himself being the very man that makes the
objection ; " by the person whose appointment I am giving away, and who is
" putting me in his turn. That is my object. 1 speak by hearsay, and I
" know nothing but what my friend Sutton has told me, who 1 have hitherto
" found no reason to complain of. But Colonel Toone has doubts : let no
" hurry take place, though the young man's time may draw near ; let no ap-
" pointment take place until Colonel Toone has seen this young man." Is

X 2 not



Court

ot" King's

Bench.

Mr.

Brougham.



m



PROCEEDINQS IN THE



Court

of King's

Bencli.

Mr.

Brougham.



not there, 1 ask, an end of the prosecution ? Is liot there an end put to this
case by this answer of Mr, Abington's ? Is not every one thing in the evi-*
dence of Colonel Toone explained, that at first seemed to be a ground of
suspicion to the mind, and was so used by my learned friend in his statement
to you, in order to make it appear that Colonel Toone was a much more
cautions man, and much fonder of using his means of knowledge, than Cap-
tain Prescott, who acted rashly and hastily, in order to connive at, and en-
courage, and back up this friend of his, Mr. Sutton, this electioneering friend
of his, in his attempt to sell his cadetcy. That Colonel Toone was to be
praised and Captain Prescott blamed, because Captain Prescott hurried it
over and Colonel Toone stopped it.. Do I deny the fact ? My denial avails
not. The witness for the prosecution rebuts it : he has sworn it was Captain
Prescott himself who stopped the promotion, that Colonel Tooue might be
satisfied.

Now, Gentlemen, one word more upon the way in which people sign these
recommendations. When a man attests upon his own knowledge, and attests
that which he knows not to be true, or when he pretends to know that which
he cannot have knowledge of, he may be said to be doing an irregular thing
by giving his certificate : but what do those persons who sign the answers
declare ? Colonel Toone, whose hand I have it under, says, " I do hereby
" declare, to the best of my belief, that the petitioner's answer to the foregoing
" questions are correct:" and Captain Prescott certified no more, when he
said he believed what Sutton told him, than Colonel Toone did, when he
says, under his own hand, that he believes what Captain Prescott told him.
That must be evident to every attentive mind. But observe the easy course
that Captain Prescott had to accomplish his object, if he had this view. It
is clear that Colonel Toone, by signing this nomination, which he did without
hesitating, would not have thought it so regular (and he appears to be a man
who steers upon the outside line of regularity and punctilious correctness), it
is clear that Colonel Toone thought there was nothing irregular in his nomi-
nating, though Captain Prescott ought to have been the name. He does not
object to it : he signs it. But certainly, upon this, nothing could have been
more easy than for Captain Prescott to make Colonel Toone give the nomina
tion at once to Mr. Sutton, in which case Captain Prescott's name never
. . - - would



CO U II T O F K I Nfr' g B E N d H.



15?



would have appeared. — " Lend me your cadetcy : my friend Sutton will sign,
" and then, instead of my name appearing on the books of the India-House,
" connected with the name of Sutton as giving him a second cadetcy, it would
f' appear that 1 gave him one and that you gave him another." — He would
never have objected to that ; the evidence all shews that he would have done
it. He signs the nomination, although it is a slight and almost harmless irre-
gularity. The most usual way is, that the man who borrows signs, and
here the man who lends signs, and so that object is very commonly avoided.
But see how easily this supposed guilty purpose could have been accom-
plished by this gentleman. He does this very thing which increases his diffi-
culty, and in the end frustrated his attempt. If he had got it from Colonel
Toone and Sutton had recommended to Toone, or if he, without waiting for
Sharp's observation, had said, that is another thing ; he avoided, if you say this
is the way to do it, why do 1 object to it, and inquire whether it is regular or
not ? there would have been an end of the question not only hours ago, but a
year ago ; but it is because he prefers taking the other and less irregular
course ; and when Mr. Sharp suggests one thing, raising difficulties against
himself, according to my learned friend's view of the case, but nothing against


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Online LibraryEast India CompanyProceedings of the court of directors and of a secret select committee appointed by the court ... 2d May 1827, to investigate transactions connected with an abuse of patronage; together with a report of the trial in the Court of king's bench → online text (page 13 of 17)