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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 14 of 17)
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himself according to my view of the case, because he had nothing to conceal,
he says, '* is there not a difficulty ?" and that leads to the conversation you
have heard.

Then, Gentlemen, you have it said, that Mr. Abington's name is used in
writing the letter to Colonel Toone. I beg to say that is the regular course.
It comes from that department, it does not come from the study of Mr. Pres-
cott. The papers go to the office, they are prepared there and signed there :
they go through the office, and it is regular that Mr. Abington should have
done it. If not, do you think Captain Prescott would have put himself in the
hands of that young man for an irregularity ? do you think he would have
made him an accomplice ? but he says " take Mr. Abington's name in the
" usual way, and write the letter to Colonel Toone, that this is the appoint-
" ment he is to fill up. ' He does not suppress one name : he does not conceal
Captain Prescott's name : he says, " write in Mr. Abington's name, but it is
by my desire, so that the letter got to Colonel Toone in a way not to deceive
any human being." It is " Mr. Abington's compliments, and he is desired by
t,.;. Captain



Court

of King's

Bench.

Mr.
Brougham.



m



PROCEEDINGS IN THE



Court

of King's

Bench.



Mr.

Brougham.



" Captain Prescott to send the enclosed papers to Colonel Toone;" and then
they are carried on to the house of Captain Prescott by the messenger who had
received them from the commodore. He says, " my order was, after I had
" received them, to carry them on to Captain Prescott :" which is just to
avoid going backwards and forwards from Colonel Toone's to the India-House,
and then back again to Captain Prescott's, Captain Prescott's being the ulti-
mate destination, and there being no earthly conceivable purpose for makin"-
three trips instead of one.

. Gentlemen : you have already heard the respectable character of this gen-
tleman from Mr. Astell ; you shall hear it from others. They have not called
the Chairman, who ordered the prosecution ; nor the Deputy Chairman, who
concurred in it, who is, likewise, a prosecutor; and we have no opportunity of
knowing from them what passed in the year after the indictment was preferred •*
but I shall call before you his brother Directors, who are also the prosecutors,
who know theinquiries that have been made and the motives for this proceeding,
who will give you their opinion as to the high and unsullied character borne by
this gentleman, whom you are called upon, on no better evidence than these
surmises, that I have now shown you are sought by false construction, inge-
nious perversion, and by exaggerated statement, to be wrung from these plain
innocent facts ; upon no better ground, by your verdict you are called upon to
consign him to infamy for the rest of his life, as guilty of the foul offence of
conspiracy.



Mr. Starkie. MR. STARKIE.

May it please your Lordship : Gentlemen of the Jnry.

It now devolves upon me to make a few observations to you upon the case
of Mr. Despard, who, I believe, stands the fourth defendant upon this indict-
ment. Gentlemen, though he is a person in much humbler circumstances
than the gentleman whom my learned friend, Mr. Brougham, has been lately
defending with so much eloquence and zeal, he is a person of good family,
and bears his Majesty's commission ; whose reputation and liberty are as dear
to him as those of any person, however exalted his rank : and I trust. Gentle-
men, you will favour me with a continuance of that attention which, throughout

the



Mr. Starkie.



COURTOFKING'SBENCH. 159

the evidence, you have paid to this case ; because upon your decision must Court
depend the question, whether my chent is to maintain that reputation he has °Bench *
hitherto sustained, or depart this court a ruined and degraded man.
. Gentlemen : althouj^h my observations in this case must be very short
inasmuch as there is but a very small part of the evidence that relates to the
case of my client, Mr. Despard, before I proceed to make those observations,
allow me to state what is the real charge against him. Gentlemen, the
voluminous indictment I hold in my hand, containing no less than thirteen
counts, will resolve itself substantially into the question, whether Mr. Despard
did corruptly, for gain's sake, negociate the obtaining a commission for a
person of the name of Back ; for though the counts are differently framed, it
will be found that in every one of them that specific charge is repeated, that
the parties did corruptly, for gain's sake, negociate ; and should you be satisfied
that my client had any knowledge of what was passing between these parties
who have pleaded guilty, and against whom, had they pleaded not guilty, the
evidence given to-day would be fully sufficient and overwhelming, 1 say,
should it even appear before you to-day, upon the testimony of Dr. Back,
that Mr. Despard knew at the time the transaction was going on that a cadet-
ship was to be obtained, I apprehend still, unless he did, accordin"- to the
words of the indictment, corruptly, and for gain's sake, take a part in the
negociation, he will be entitled to a verdict of acquittal at your hands.

But, Gentlemen, it must have been apparent to you long ago, that the
evidence against my client depends upon the testimony, and wholly upon the
testimony of the first witness called, Dr. Back ; for I believe there is not one
other of the numerous witnesses called on the part of the prosecution, who
gives an iota of evidence that can in any way affect Mr. Despard.

Now, Gentlemen, certainly it is my duty, on this occasion, to state to you
those circumstances which, according to my humble apprehension, ought to
create a doubt in your minds, or the mind of any one who has heard that
gentleman give his evidence, how far they ought to credit the testimony he
has given, unsupported by documentary evidence, or the testimony of any
other witness, or the probabilities of the case. You find Dr. Back, who is in-
troduced as a respectable clergyman, and having resided upon the Continent
many years, at last obtained a living, 1 believe the living of Little Hampton.

Mr.



160



77 fROCEEDINGSDNTHE •



Court

of King's

Bench.

Mr. Starkie.



Mr.Gurney, — No, he only lives there. '

Mr. Starkie. — He lives there without any living ; but he is a Doctor of
Divinity: and you find that this person is attracted by an advertisement in
the Morning Herald newspaper, of the date of the 11th August, 1826. Now,
Gentlemen, observe the part he acts upon this occasion. If he had acted
fairly and honourably to obtain a place for his son, what necessity was there for
his resorting to a cloak, and assuming the false name he did upon that occa-
sion : and 1 beg leave of you to bear in mind, as I have no means of calling
a witness to contradict Dr. Back, and as the confidence you place in his testi-
mony or withhold from him must depend upon collateral circumstances,
because I cannot call witnesses to contradict what took place, as he says,
between my client and himself, it is my duty to make such observations as will
lead you to the conclusion whether you will believe him or not.

What is the conduct of Dr. Back ? Instead of doing what any respectable
inan would have done, — to have gone in his own name to inquire into the
circumstances, because he did not at that time apprehend there was any thing
irregular in the transaction. What is the account he gives you ? " I happened
" to have a card of Colonel Edwards' in my pocket : it was by accident, and I
" thought I would represent myself as Colonel Edwards:" and then he goes,
with this base misrepresentation in his mouth, and represents himself as Colonel
Edwards, which name he assumes throughout the whole transaction. I was a
little anxious to learn who this Colonel Edwards was ; because it is from little
circumstances that Juries come to a clear knowledge of facts, and especially
the character of those who give such testimony, which cannot be contradicted
in any other way. I asked him who was Colonel Edwards ; because it was
possible he might know something of the name: that gentleman might have left
a card at Dr. Back's house, or it might have been delivered to him at his house.
But what is his answer : that Colonel Edwards was the first husband of Dr.
Back's present wife, and that he died so long ago as 1819, or rather he mar-
ried in 1819; so that, reckoning from that date, he must have died of course
some time before that : but reckoning from that date, you will find he had the
card of a person who had been dead for seven years by him ; that he had
got a store of such cards ; he had got not fewer than a hundred of such
cards. Whether that is an account that satisfies you, or whether he did this

for



Mr. Starkie.



COURT OF KING'S BENCH. 16i

for a fraudulent purpose, representing himself as Colonel Edwards, it will be Court
for you to decide. "S'.^

Then, Gentlemen, afterwards he says, he was surprised to find that a price
was expected for the Cadetship for which he applied. Do you think it possible
that could have been the real reason of Dr. Back breaking off thecommunica-
tioti, because a price was asked for the situation he wished to procure for his
son ? Is it consistent with the common practice, that valuable situations desira-
ble for a son are disposed of gratuitously ? Your knowledge of the world will
bring you to a very different conclusion from that. If you refer to the adver-
tisement, it will be apparent from the very terms of that advertisement that
that was not intended ; for the advertisement was read, and by that it is stated
that the outfit will require means, and no person need apply who cannot
supply means. And, Gentlemen, it is impossible for men of your under-
standing to come to any other conclusion upon this subject, than that this was
a mere pretence of Dr. Back to break off this negociation, and take the course
he did ; for you will find that after this, in February, he makes a disclosure of
the subject to the East-India Company, Now at what time any dis-
closure took place, as far as any collateral testimony goes, you have no evi-
dence whatever. I put to him some questions, which he answered thus : —
" I made a communication to the East-India Company in February; I had
" much communication upon the subject." And with respect to the time,
even, he might have been confirmed by the production of these letters, be-
cause they must have been in the possession of the prosecutors^ It rests upon
his sole testimony that he gave that information to the East-India Company,
and had been induced, without any other motive, to come forward now ;
except that he was acting in collusion with certain persons in the way of
being detected, and he chuses to become the agent and informant of the East-
India Company, and buy impunity, if not patronage for his son : and you
see, after that time, he becomes a spy, after being an informer or agent for
the East-India Company. That is a circumstance upon which I mean to
impute no blame to the Company, because we know, in many instances, it
is impossible, without the assistance of agents and spies, and persons not of
the most respectable character in the world, that the ends of justice can fre-
quently be obtained ; but in all the cases upon the subject that I have been

Y aware



16^



t» fJlOC5ED.IN(Jr S IN THE



Court

of King's

Bench.

Mr. ^tarkie.



aware of, it has been the universal rule, that where a party is capable of con-
firmation, to shew that the communication was fairly and bond fide made, and
was going on with the concurrence of his employers, it has been the universal
rule to produce that confirmation. Probably you have attended in court when
prosecutions used to take place for passing forged Bank of England notes : in
all those cases the constant practice, according to my experience, has been,
that although it was necessary, on the part of the Bank, to hire persons who,
under false names, introduced themselves to persons guilty of illegal dealings,
yet there was always in those cases full evidence to confirm them in all the
collateral parts of the evidence that such agents had given. For instance,
where a party has been employed to purchase forged notes, nothing is more
common than for the constable, or person who employs him, to mark the
money to be given to the person who obtains them, in order that the person
may not be without confirmation; that the party may be taken up with the
money in his pocket, and that the evidence of the agent may receive such a
confirmation. Now, in this case, circumstances have been stated which, if
they were true, this party might have been confirmed again and again, for
these letters, which he says he wrote to the East-India Company, must have
been in the custody of the prosecutors, and might have been produced to-day,
and those letters would have been strongly confirmatory, if any 'such had
existed, of the testimony he has given to-day. There is also another circum-
stance, and a very material one, upon which this person might have been con-
firmed ; and that is this : You observe, that he not only refreshed his memory,
but read copious passages from the notes he had. Those notes he asserted,
upon cross-examination, were shewn from time to time to the agent of the
East-India Company. Now, Gentlemen, certainly that would have been a
most material corroboration, if they had shewn, or called the witnesses to
prove, that night after night, when these conversations had taken place, that
he did detail conversations, and produce writings, and certify that writing,
and shew beyond the possibility of doubt, that this was the report that this
informer gave from time to time.

Gentlemen, there is another circumstance that might have been proved.
He says notes to a very large amount, .£500 and £300^ were actually in the
possession of some of these parties,— not in the possession of my client ;

nothing



Mr. Starkie.



COURT OF KING'S BENCH, - 163

nothing of that sort is proved : but these notes were in the possession of these Court
parties who have pleaded guilty. And I ask again, why are not the parties "n^'^f ^
called ? why are not the agents of the East-India Company called, who
could have sworn to the delivery to Dr. Back of these notes, to the amount of
^500 and ^300, to be used for these purposes ?

Thus it stands upon the testimony of Dr. Back : and I ask you whether,
considering that Dr. Back is the sole witness who gives the slightest particle
of testimony against Mr. Despard, whether you are prepared to say you will
give such implicit credit to the statement he has made, considering the circum-
stances under which he has given his evidence, so as to consign a person who
has filled the situation of my client to utter ruin and degradation. But,
Gentlemen, even supposing you should be of opinion that any part of Dr.
Back's statement is true, still I submit (o yon, and with considerable confi-
dence, that even taking that to be true which he has stated, it would not
warrant you in pronouncing a verdict of guilty against my client ; because,
at most, it only shows that somethhig was said about this negociation at the
time he was present, between these persons. Gibbons and Dr. Back ; but it is
not pretended by that evidence, that Mr. Despard took any part in the nego-
ciation : and therefore, even should you be of opinion that he had some
knowledge of what was going on, yet I apprehend, with great submission to
his Lordship, unless you can come to the conclusion that he did corruptly*
for gain's sake, negociate or conspire, or do some act for the purpose ot
furthering an illegal object, although it might have been better had he
separated himself at once from that society, he is not within that offence
which is charged upon this indictment.

Gentlemen, there is one circumstance which I ought also to observe upon :
that Dr. Back, in the course of his evidence, has styled him with the title
of " Captain." 1 believe he is only entitled to the rank of lieutenant ; but you
must know that, in the British army, in the regular forces, I understand.
Gentlemen, he does fill the situation of captain, and that he was rightly called
by Dr. Back. But you are fully aware, I have no doubt, that though the
sale of cadetships in the East-India Company's service is illegal, it is not any
thing illegal to sell commissions in the regular army. In the Act passed to
make it illegal to be at all concerned in negociating the sale of cadetships,

Y 3 there



Mr. Starkie,



164 PROCEEDINGS IN THE .

Court there is a clause enacting, " that nothing in that Act shall extend to any
"sench.* " pi"*^"hases, sales, or exchanges of any commissions in his Majesty's forces,
for such prices as shall be regulated and fixed by any regulation made, or
to be made, by his Majesty, in that behalf, or to any act or thing done in
" relation thereto, by any agents." I merely mention this by the way ;
because military men, as my client. Captain Despard is, might not at the
time advert to the legal distinction and the substantial distinctiotJ, which cer-
tainly there is between the sale of an East-India Company's office and the
sale of a commission in this country, and therefore he might not, as some
others might have done, better iaformed on the subject. He is no lawyer ;
he is a half-pay oflBcer, He did not at once say, " you are doing a very
" scandalous thing," and leave them at once : he might think they were
acting legally.

Mr. Gurnet/, — If you read the Act of Parliament you should read it cor-
rectly. The words are, " provided that agents shall be agents of regiments
authorized by the Commander-in-chief of his Majesty's forces, or by the
Colonels or Commandants of regiments or corps."

Mr. Starkle. — I do not mean to justify it: he might easily suppose that,
though his ignorance of the law would be no excuse ; I only mean to say, it
may operate so far as to show why he did not exclaim against their conduct.
You observed the way in which Dr. Back gave his testimony : he produced
a great number of notes before you and read them copiously : he stated that
all those notes were written at the same time.

Lord Tenterden. — No, he did not say that.

Mr. Starkie. — He said they were written at the time that each bears date.
I should like you to see those notes, and you will judge, for instance, whether
that was the case, or whether a great many of those entries have not been
tpade at the same time, although they bear different dates ; and also look at
the original entries, and there you will find that those circumstances he after-
wards stated with respect to the conversation are very different indeed, or
wholly omitted : and when he reduced those conversations into writing does
not appear.

But let us see at what time it is, according to Dr. Back's account, that my
client becomes a party to this transaction, in the way in which he states it.

The



Mr. Starkie.



> COURT OF KING'S BENCH. J^

The first time he speaks of seeing Captain Despard is the 25th of April, Court
1827: before that time he did not know there was any such person in ex- °o*^'"Jf®
jstence. Tfie negotiation iiad, at that time, gone so far, that upon that day,
or the day before, the half of a £500 note had been deposited with Mr.
Gibbons, and Mr. Gibbons had given his receipt for it. The negociation was
to a great extent completed ; the price had been agreed upon and half of the
note given, therefore there seems to be no earthly reason why he should be
introduced by the other parties to conspire for this illegal purpose. There
seems to be no earthly reason, when they had so far advanced as to obtain
the half of a £500 note, why they should at all introduce Captain Despard
into their illegal partnership, with a view to give him any part of the profits ;
nor is there any part of the evidence that could at all satisfy your minds he
was to have any part of those profits. It is not pretended in these conversa-
tions that he was to have any part, or that any money passed at the time he
was there. You find upon the 25th of April the consveration was a very short
one ; and the utmost that Captain Despard said at that time was, " you
" have been a long time about this, I would settle it very soon : I know
" Captain Anstice ;" and it is very likely he did.

But does it follow he was advising them to an illegal negociation, because
he knew Captain Anstice could obtain a preferment of this kind ? Is it to
be inferred that he meant illegally to obtain it .? The conversation, as it
appears to me, certainly does not go beyond that : it is merely stating, that
if he had known of the business sooner he would soon have settled it. Then
it appears the next day the parties are at Captain Anstice's office. Captain
Anstice having been the friend of this party. The particulars of the conver-
sation are not stated : all that is stated is, that Captain Anstice said he had the
half of the £500 note, and that that would be useless unless he had the half of a
£300 note ; and that Captain Anstice had most of Mr. Astell's appointments.
It does not follow that he had them illegally : still less does it appear that
Captain Despard was to have any illegal share or benefit from the interest to
be derived.

But there is another circumstance on my mind which is very strong, to shew
that Captain Despard was not to receive any part of this money. I allude to
the particular time when the matter was to be finally wound up and settled,

and



166



PROCEEDINGS IN THE



Court

of King's

Bench.

Mr. Starkie,



and when it was expected that this young man, the son of Dr. Back, would be
passed at the East-India House, the remainder of the notes was to be produced,
and those who were concerned in the transaction, and received any part of the
dividend and profits, were to receive their payments : but although it is stated
that many of the parties who have pleaded guilty were there, it does not ap-
pear that Captain Despard was there ; and if he had so far committed himself
as to have made himself a party to this illegal agreement, it will be for you
to say whether he would not have been anxious to have received the price of
his iniquity with the rest, and been in attendance at the Ship Tavern, to re-
ceive the profits. You find, so far from that, that I think one of the wit-
nesses stated (Dr. Back, I believe) that Gibbons said, as the cadetship had
been bought for £800 instead of nine hundred guineas, and he had got it
for less than he ought to have had it for, that he ought to have f^S and Mr.
Wright £100 of the difl^erence. Now, Gentlemen, I think this evidence is
available in this way. At the time they are talking of the participation of the
money, at the time the money is being received, Captain Despard is not there
to receive any part of it, although the sharing of it is spoken of. Gentle-
men, there is no evidence to shew that Captain Despard was acquainted with
any of these persons, except Captain Anstice and Mr. Gibbons : with respect
to the other parties who have pleaded guilty, they may have been perfect
strangers to him up to the time of the transaction.

Now, Gentlemen, under these circumstances, -considering, in the first place,
that even if Dr. Back's evidence went much farther than it does, considering
the situation in which he stands, considering the account he himself gives of
himself, I submit he is not a person who stands so fairly, and of such unsul-
lied reputation, before you, that you can safely convict Captain Despard upon
his evidence ; and the more so, when you consider that much evidence might
have been given to support his character that has not been adduced. Then,
Gentlemen, as I have already observed, the probabilities of the case are the
other way. It is very improbable that Captain Despard should have been
admitted a participator in these profits. He did nothing, even allowing
Dr. Back, who is not an unwilling witness, whose interest is probably to
convict as many of the defendants as possible, he does not affect to say there

' was



COURTOFKING'SBENCH. |67

was any hint given Ihat this gentleman was to be a participator in this q^^^^
transaction. of King's

Gentlemen, having made these observations to you, I will not repeat them. '

The evidence itself is very brief against this gentleman, as my observations ^^' ^^"^^
must have been. You knovv, as well as 1 do, that before a jury can come to
a conclusion that a prisoner is guilty of such an heinous offence as this, it is


1 2 3 4 5 6 7 8 9 10 11 12 14 16 17

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 14 of 17)