Part 12
But, my Lords, I contend that this witness is inadmissible from the particular circumstances attending his case. For, according to the information which I have received, when this witness was apprehended and committed to prison, in the month of March last, to stand trial for this crime, he never charged Mr. Brodie as having been in any measure accessory thereto. On Ainslie’s first examination he positively affirmed that Mr. Brodie had no sort of accession to the crime of which he is now accused, or was concerned in any other bad action whatever to his knowledge, unless playing at cards and dice should be reckoned such; and in the different declarations which he made before the Sheriff he still persisted in denying that my client had any concern in this robbery. But after Mr. Brodie was apprehended and brought from Holland Ainslie was again brought before the Sheriff, when he was informed that either he himself must be hanged or he must accuse Mr. Brodie. Further, I am now instructed to say that when this witness was carried before the Sheriff his life was offered to him on his becoming King’s evidence against Mr. Brodie, and accusing him of having been concerned in this robbery, and that, even notwithstanding this offer, he persisted in denying that Mr. Brodie was guilty of this crime, until John Brown _alias_ Humphry Moore, another of the witnesses cited, and alleged also to have been a _socius criminis_, was allowed to see and converse with him in prison, when at length he came into the measures proposed. I mean to say nothing against the conduct of the Sheriff, which may have been very proper--with the motives which may have influenced a public officer to a particular line of conduct I have nothing to do--but I state it as an insuperable bar to the admissibility of this witness, that hopes were suggested to him of saving his own life by criminating my client. And I offer to prove, by the evidence of the Sheriff of Edinburgh himself, that a bargain of this nature was made with Ainslie, and that it was not till then he was prevailed upon to say that Mr. Brodie had any concern in this crime. No man could withstand such a temptation, and it is impossible that the Court can receive the testimony of a witness in such circumstances.
The LORD ADVOCATE--My Lords, I hardly expected that such an objection would have been made at this time, as it has long been the universal practice to admit _socii criminis_ as evidence, and at the last trial in this Court such a witness was received without even an objection being stated. All the arguments on the other side could only affect the credibility of the witness, which properly belongs to the jury, and not the admissibility, which alone is before the Court. It is indeed true, and I am even surprised that the honourable counsel had not appealed to the authority, that Sir George Mackenzie has laid it down that _socii criminis_ could not be admitted as evidence; but upon what principle of law or reason Sir George formed that opinion I could never discover. Sir George Mackenzie, indeed, is an author by whom I never was much instructed. He is often contradictory, always perplexed, and in many instances unintelligible. But even supposing the law had so stood in his time, the Court and the practice have long since deviated from it.
My Lords, the fact as stated by the Dean of Faculty is
erroneous in every respect. For although Ainslie in his first declaration did not accuse Brodie or any other person, and denied all knowledge of the crime, yet in the second declaration which he emitted before the Sheriff on the 14th of March, which I now hold in my hand, and would read did the forms of the Court permit me to do so, he in the most express terms charges both Brodie and Smith as being equally concerned in the crime libelled. And, my Lords, it will not easily be believed--indeed, the thing is incredible--that so respectable an officer of the law as the Sheriff of Edinburgh would ever have entered into such stipulations with Ainslie. But even had such transaction taken place before any inferior judge or magistrate, still that cannot deprive the public prosecutor of the evidence of this witness, for it will not be said that any such transaction passed between him and the witness, and therefore the objection ought to be repelled, reserving the credibility of his evidence to the jury.
The DEAN OF FACULTY--My Lords, I offer to prove my assertion.
The LORD ADVOCATE--My Lords, I am willing, if the Dean of Faculty and the Court consent to it, to hold the second declaration, emitted long before Mr. Brodie was apprehended, as the evidence to be delivered by Ainslie on this occasion.
Lord ESKGROVE--No transaction of any kind can possibly take place where life and death are concerned; and, therefore, even although the counsel on the other side consent to such a proposal, the Court would not allow it.
The LORD JUSTICE-CLERK--Dean of Faculty, do you say that my Lord Advocate has made a corrupt bargain with the witness to accuse Mr. Brodie upon condition of receiving a pardon?
The DEAN OF FACULTY--No, my Lord; but I repeat my offer to prove a bargain to that purpose with the Sheriff.
Lord HAILES--My Lords, the objection of _socius criminis_, if it ever was sustained in our law, has long since been obsolete. Nor can I understand how Sir George Mackenzie laid it down that _socii criminis_ could not be admitted in evidence, since in his time we have instances of their having been actually received as witnesses. This assertion of Sir George Mackenzie’s is, like many others in the same work, founded neither on principle nor fact. But the Dean of Faculty’s objection amounts to a kind of _reprobator_ against this witness. But even supposing that any credit could be given to the circumstances upon which this objection is principally founded, yet it could not affect the admissibility of this witness, as it is not pretended to be said that the alleged stipulation had taken place with the consent of the prosecutor for the Crown. I am therefore, upon the whole, for repelling the objection.
Lord ESKGROVE--My Lords, there is no doubt that the objection of the witness being a _socius criminis_ cannot be admitted in the present state of our law, whatever might have been done formerly. By the common practice, such witnesses are every day admitted; nor do I see how crimes of this nature could be discovered if a contrary practice were followed.
As to the special circumstances qualified by the Dean of Faculty, that a bargain was made by the Sheriff with Ainslie to procure him His Majesty’s pardon on condition of his accusing the pannel, I am likewise of opinion that these do not go to his admissibility. For your Lordships will observe that Ainslie cannot possibly be under any temptation now to accuse the pannel in consequence of that bargain. If I understand the law, my Lords, the calling any person as a witness on a trial is completely departing from any right to indict that person himself as being guilty of the crime concerning which he is called as a witness. Nor does it signify whether the pannel be convicted or not; it is clear that the witness can never be questioned for that crime; and Ainslie is quite safe from the consequences of his being accessory to the robbery of the Excise Office, if he was so. But, my Lords, it will be proper, before examining Mr. Ainslie, to inform him of his situation; and it will be proper, and the counsel for the pannels are entitled, to put such questions _in initialibus_ of his evidence as will tend to satisfy your Lordships and the jury whether such a bargain had been entered into with him by the Sheriff or not, and how far he considers himself bound by it.
Lord STONEFIELD--My Lords, I am for repelling this objection.
Lord SWINTON--My Lords, the objection made to the admitting of Andrew Ainslie is that he was an accomplice. I am clear to repel the objection in so far as it goes against the admissibility of the witness, but reserving it in full force, and leaving it to the conscience of the jury, in so far as it strikes against the credibility of the witness. In all my practice, ever since I knew this Court, although I have often heard the objection made, I never knew one instance in which it was sustained. If the jury were bound to believe every word a witness said, be his character what it may, there would be good reason for sustaining the objection, but where objections are reserved against the credibility of a witness, the jury are left at liberty to believe as much or as little of what he says as they see good cause for so doing.
The repelling of this objection, which is now the uniform practice, was founded upon good sense and reason, for as accomplices are best qualified to make discoveries, so, many crimes, were they excluded from being witnesses, would pass unpunished; and any hazard of their being guilty of perjury may be easily prevented by the Court’s informing them that the evidence they are to give cannot affect themselves.
The LORD JUSTICE-CLERK--My Lords, were such an objection as this to be sustained, we would find very few instances, as one of your Lordships has very well observed, where a crime such as the present, of an occult and secret nature, could be brought to light. My Lords, as to the objection of the _socius criminis_, I will not say a single word upon it. I always thought, my Lords, that it contained in itself a complete answer, since the allegeance that the witness is a _socius criminis_ implies that the pannel is guilty of the crime.
What is said by the Dean of Faculty about a supposed bargain betwixt the Sheriff of Edinburgh and Ainslie is by no means such an objection as affects his admissibility, although I will not say that his credibility may not be in some degree diminished by it; and the Dean of Faculty will be right in making his own use of it to the jury. Had the Dean of Faculty alleged that this bargain was corruptly made by my Lord Advocate, I could have understood him. But the Sheriff is only an inferior officer, and had no power to enter into any such transaction. Had he been ever so willing he could not have given Ainslie the smallest security that the terms and conditions of the bargain were to be fulfilled on the part of the Crown in consequence of Ainslie performing what was required of him. A higher authority was necessary, and none but the Lord Advocate himself could with any effect enter into an agreement with a witness to procure him His Majesty’s pardon for becoming King’s evidence. It is therefore not enough to say that offers were made him, whatever they were, by the Sheriff, and we must examine him, reserving all objections to his credibility.
The Court then pronounced the following interlocutor:--
The Lord Justice-Clerk and Lords Commissioners of Justiciary having considered the foregoing objections with the answers thereto, they repel the objections stated, and allow the witness to be examined, reserving the credibility of his evidence to the jury.
ROBT. M‘QUEEN, I.P.D.
26. ANDREW AINSLIE, sometime shoemaker in Edinburgh, present prisoner in the Tolbooth of Canongate of Edinburgh, called in and sworn.
The LORD JUSTICE-CLERK--Andrew Ainslie, you are called here as a witness to give evidence as to certain matters in which it is generally understood you yourself had a concern. You are informed by the Court that whether you had any such concern or not you are in no danger in telling the truth, for, being called here as a witness, you can never afterwards be tried for the crime with which the prisoners are charged. You are to pay no regard to the declarations you formerly emitted; these are now destroyed. And you will remember that by the great oath you have sworn you are bound to tell the truth, and if you say anything to the prejudice of the prisoners which is not true, or if you conceal any part of the truth with a view to favour them, you will be guilty of the crime of perjury, and liable to be tried and punished for it, and you will likewise commit a heinous sin in the sight of God, and thereby endanger the eternal salvation of your own soul.
WITNESS--I am acquainted with both William Brodie and George Smith, the prisoners at the bar, and also with John Brown _alias_ Humphry Moore. I remember that the Excise Office was broke into upon Wednesday, the 5th of March last. I knew before that that it was to be broken into, but how long I cannot tell. Brown and the prisoners and I frequently talked of it before, and Brown and I went often to the Excise Office in the evenings in order to observe at what hour the people left it, and in consequence of repeated observations we discovered that the door was usually locked about eight o’clock, and that there were two men, an old and a younger man, who came night about to watch the office about ten o’clock. Afterwards Brown and I went out one afternoon to a house at Duddingston, where we drank a bottle of porter, and saw a woman whom I took to be the landlady. We then went to a field in the neighbourhood, from which we took the coulter of a plough and two iron wedges, which we carried to the Salisbury Crags and hid there. At this time there was a black dog in company with us. We had fixed on Wednesday, the 5th of March, for committing the said robbery, and we allowed the coulter to remain in Salisbury Crags until about six o’clock of the evening of that day, when Brown and I, it being then dusk, went out and brought the coulter of the plough to the house of the prisoner, George Smith, on purpose to use it in breaking into the Excise Office. We found Smith at home, and we expected Mr. Brodie to join us and to accompany us to the Excise Office. Brodie did not come until a good while after, when he joined us in the room above-stairs in Smith’s house. Mr. Brodie was at this time dressed in a light-coloured great-coat, with black clothes below (in which I had often seen him before), and a cocked hat. When he came in he had a pistol in his hand, and was singing a verse of what I understood to be a flash song. By a flash song I mean a highwayman’s song. We spoke together concerning the Excise Office; and it was settled upon that I should go before to the Excise Office and get within the rails and observe when the people went out. I went there accordingly a little before eight o’clock, carrying the coulter of the plough with me, and waited till I saw the porter come out with a light and lock the outer door. In a short while thereafter Smith came to me and asked if the people were all gone, and when I informed him that they were gone out Smith then went forward and opened the door with a key, which, I had heard him say, he had previously made for it, and went into the office. In about five minutes thereafter Brodie came down the close, and when I told him that Smith had gone in, but that Brown was not yet come, he went up the close again towards the street, and returned in a little with Brown, who said he had been dogging the old man who watched the office in order to see where he went, and that he had gone home. Brown then asked me whether or not I had “Great Samuel”--by which he meant the coulter. I told him I had, and gave it him through the rails, and he and Brodie then went down towards the door of the office and went in, as I supposed. I had no arms myself, excepting a stick, but Smith had three loaded pistols, Brown two, and Brodie one; at least, I saw Brodie, when he came into Smith’s house, have one in his hand. It had been previously settled amongst us, before leaving Smith’s house, that Brodie was to stand in the inside of the outer door, and that Brown and Smith were to go into the office. I was to remain without to watch, and in case of danger, to give an alarm to Brodie, which Brodie was to communicate to Brown and Smith. The signal of alarm agreed upon was to be given by me in this manner--A single whistle if one man appeared, so that they might be prepared to secure him; but if more than one man, or any appearance of danger, I was to give three whistles, in order that those within might make their escape by the door or by the back windows, as they thought best. I had an ivory whistle prepared for the purpose, which was given me by Mr. Brodie in Smith’s house in the afternoon. I took my station within the rail and leaned down, so that no person either going in or coming out could see me. Some short while after Brodie and Brown went into the office, a man came running down the close and went in also. I gave no alarm, for before I had time to think what I should do another man came immediately running out at the door and went up the court. In a very little afterwards, to my great surprise, a second man came out from the office. I got up and looked at him through the rails, and perceived that he was none of my three companions. I had not seen the other man who came out first so distinctly, owing to my lying down by the side of the parapet wall on which the rail is placed, in order that I might not be observed. I was afraid that we were discovered; and, as soon as the second man had gone up the close, I gave the alarm by three whistles as the agreed-on signal of retreat and ran up the close myself. I went down St. John’s Street and came round opposite to the back of the Excise Office, thinking to meet my companions coming out by the back way, having escaped from the windows. I remained there for some little time, and, not meeting with them, I then went directly to Smith’s house. Finding none of them there, and Mrs. Smith telling me that they were not yet come in, I went back to the Excise Office by the street, went down the close, saw the door open, and, finding everything quiet, I returned to Smith’s, where I saw him and Brown. They accused me of not having given the alarm as I promised, and said that when they came out they found that Brodie had gone from his place. I told them what I had observed, and that I had given the alarm. I remained in Smith’s only a few minutes, and I did not see Brodie again that night.[9] Brown and I then went over to the house of one Fraser in the New Town, and sent for Daniel Maclean, Mr. Drysdale’s waiter. We spent the evening with him there. There was one Price likewise in company with us, and we remained together till about two o’clock in the morning. It was near eight o’clock when I went first to the Excise Office, and it was about half-an-hour afterwards that I quitted my station. Brodie called next morning at our room--the room occupied by Brown and me. He came in laughing, and said that he had been with Smith, who had accused him of running away the previous evening. I told him that I also thought he had run off; but he said that he had stood true. Brodie had no great-coat on when he came to the Excise Office and spoke to me at the rails; he was dressed in black. When the whistle was given me by him in Smith’s house in the afternoon Brodie had on the white-coloured clothes which he usually wore. He afterwards changed them before we went to the Excise Office. Before I left Smith’s I saw Brodie have a pick-lock in his hands, and I think we all had it in our hands looking at it. Brodie was in his own hair. I did not observe him have a wig. We had prepared three crapes to disguise our faces; one of them was intended for Brown, another for Smith, and the remaining one for myself, but I did not see either Brown or Smith put a crape in their pockets that night. [Here the pistols libelled on were shown to the witness.] These pistols belonged to Mr. Brodie, and Smith had them with him at the Excise Office. They were given to him by me, and I had borrowed them from Mr. Brodie a month or two before for another purpose. That same evening Brown told me, as we went over to the New Town, that they had found sixteen pounds and some silver in the Excise Office; and on the Friday evening following, when I called at Smith’s house, in the room above stairs I found Smith and Brodie, and saw the money lying on a chair. I got a fourth share of it in small notes, and at the same time I got some gold from Mr. Brodie in payment of money he owed me. Brodie and Smith also each got a fourth share of it. There were two five-pound notes amongst the money that was on the chair, and I signified a desire to have one of them. I accordingly gave back some of the small notes I had received and some of the gold and got one of them in exchange. I afterwards gave the note to Smith, and saw him change it at Drysdale’s in the New Town the same evening, when he was purchasing a ticket for his wife in the mail-coach to Newcastle for the next day.[10] Brown and one Price were then present.
The SOLICITOR-GENERAL--Have you any particular mark by which you could know the said note again?
WITNESS--It was a Glasgow note, and battered on the back with paper.
[Here the Solicitor-General proposed to show the witness the bank-note libelled on.]
The DEAN OF FACULTY--My Lords, here I must interrupt the witness. It is stated in the libel that a five-pound bank-note is to be produced in evidence against the pannels; but the witness says that the note given him to change was a Glasgow five-pound note, and the paper on your Lordship’s table is a promissory note for five pounds issued by John Robertson in name of Spiers, Murdoch & Company, a private banking company in Glasgow. This cannot in propriety of language be termed a bank-note. In Lombard Street, where such notes as that on the table are daily negotiated, they never think of calling them bank-notes. This term, my Lords, is exclusively appropriated to the notes issued by a bank constituted by a Royal Charter, such as the Bank of England, and the notes of a private banker are distinguished by the name of banker’s notes. Neither does such a note come under the description of money, as it is not a legal tender in payment. I hold in my hand this objection in writing, which, to save the time of the Court, I shall read, and I crave that it may be entered on the record.
The SOLICITOR-GENERAL--This objection appears to me to be so entirely frivolous as hardly to be worthy of an answer. The note in question is one issued by a very respectable banking company in Glasgow, and well known in this country by the name of the Glasgow Arms Bank. Such notes are commonly held to be bank-notes, and are so described in common language every day. Many instances might likewise be given of their being described in the same manner in criminal indictments, nor was it ever before objected that the description was insufficient. We need not go so far off as Lombard Street; there is no necessity for going further than the Parliament Close, where thousands of these notes are issued, known by no other name than that of bank-notes. The honourable counsel on the other side of the table, as well as myself, have received the greatest part of our fees in bank-notes of this kind, and both of us would have reason to complain, I believe, if what we received in that manner were not really bank-notes or considered as money.