Part 13

The DEAN OF FACULTY--My Lords, the common use of language, as well as the technical and legal description of the writing on the table, join in supporting this objection. That there is a distinction in common phrase between a bank-note and a banker’s note there can be no doubt. Every private company which is instituted with a view to the purposes of banking may indeed issue promissory notes, which meet with a voluntary credit from the country; but these are distinguished from the public banks instituted by the authority of Government, and where credit does not depend upon the goodwill of any individual, as every man must accept in payment their notes when tendered to him. These notes are alone properly termed bank-notes as the notes of a bank which is a public corporation, while the notes of a private company are termed banker’s notes, or those of an individual. Although the one may, in common discourse, be sometimes confounded with the other by those who are ignorant of the real distinction, there is no doubt that that distinction exists and is acknowledged by any one acquainted with the subject; and where they are best acquainted with it there the distinction is most explicitly acknowledged, as in Lombard Street, where no other term is known for the note of a private banker than a banker’s note. The inaccuracy of the description in the indictment is therefore evident, and can by no means be defended by the vulgar error which sometimes, I admit, is fallen into of confounding it with the note of a public bank.

My Lords, it will be allowed me that accuracy is at least as necessary for an indictment as to proceedings in the civil Courts; and your Lordships cannot have forgotten the late decision upon the application of the Bankrupt Act, when it was found that money belonging to creditors could not be lodged in the Bank of Dundee, in respect, the Act declares, that the bankrupt funds recovered should be lodged in a bank. And if the Bank of Dundee, my Lords, was held in that judgment not to be a bank under the meaning of the Act, with what propriety could your Lordships determine in a criminal case that their notes were bank-notes? No case can be figured more precisely in point; and if your Lordships approve of that decision, you will necessarily find that the note on the table is improperly described, and cannot be used in evidence.

I might safely admit, my Lords, that if this note had been described as a five-pound bank-note of a certain company, supposing it had been a bank-note of Sir William Forbes & Company, that this would have been a good description, for then it would have appeared by the indictment that the writing meant was a promissory note of that company. But from its being termed generally a bank-note, I could never suppose that it was not a note issued by one of the public banks, as that is the description that applies to no other species of document known in this country. For these reasons I hope your Lordships will not allow any questions concerning this paper to be put to the witness.

Lord HAILES--When I had the honour to serve the Crown as a depute-advocate, I learned from a most eminent judge, Lord Tinwald, Justice-Clerk, from whom I derived much instruction in the principles of law, that the note of a private banking company could not be termed in law a bank-note, nor could it be considered in any respect as money. On one occasion he obliged me to correct an indictment where I had fallen into the same error which I perceive here. The word bank-note, in legal acceptation, is applied exclusively to the notes issued by a bank instituted by Royal Charter, and I remember well the case alluded to by the Dean of Faculty, which was determined on the same principles. I am therefore clear for sustaining the objection.

Lord ESKGROVE--My Lords, I am clearly of the opinion that has been given by my honourable brother. The promissory note of a private banking company is not held in the language of our law to be a bank-note, and therefore I am for sustaining the objection.

The LORD JUSTICE-CLERK--I suppose there are none of your Lordships of a different opinion? The Lords therefore sustain the objection.

The Court then pronounced the following interlocutor:--

The Lord Justice-Clerk and Lords Commissioners of Justiciary having considered the objection, with the answers thereto, they sustain the objection to this piece of evidence libelled on, and refuse to allow the same to be produced.

ROBT. M‘QUEEN, I.P.D.

[Here the witness was shown a false key, a pair of curling irons, a small iron crow, and the coulter of a plough.]

WITNESS--I know these articles; they were all used in the breaking into the Excise Office. The coulter we called “Great Samuel,” and the iron crow, “Little Samuel.” When I gave the coulter to Brown through the rails at the Excise Office he asked me if I had “Little Samuel,” and I said that I believed that Smith had it in his pocket.

Lord HAILES--Andrew Ainslie, you gave an account of this matter formerly before the Sheriff; but you have been very properly told by the Court that what you said there is now of no avail, and that your declarations are destroyed. You have this night, in presence of the Court and the jury, given evidence against the prisoners at the bar. Before you leave the Court, I desire you to consult your own breast whether or not you have said anything to the prejudice of these men that is not true. You have it still in your power to correct any mistakes you have made, but this opportunity will never recur to you. If, therefore, you are conscious of having said anything against the prisoners contrary to truth, and if you leave this house without informing the Court and the jury of you having done so, you will commit a most heinous offence against the Almighty God, and you will be guilty of perjury and of murder.

Cross-examined by the DEAN OF FACULTY--At what hour went you first to the Excise Office on the night in which you say it was broke into?

WITNESS--I left Smith’s house about a quarter before eight o’clock; I went away before the rest.

The DEAN OF FACULTY--What o’clock was it when you returned the last time to Smith’s that evening?

WITNESS--I cannot say, but I think it would be about an hour from the time I went first to the Excise Office.

The DEAN OF FACULTY--How long were you at the Excise Office before Brodie came to you?

WITNESS--About a quarter of an hour; he came to the Excise Office just about eight o’clock.

The DEAN OF FACULTY--You have said that you had resolved to break into the Excise Office a considerable while before you carried that design into execution, and you have told us that it was broke into upon a Wednesday night? Now, you will inform the Court and the gentlemen of the jury what your reason was for fixing upon that night more than any other?

WITNESS--Brown and I having seen, in consequence of frequent observations, that an old man watched night about with the other porter, and knowing that it was his turn to watch on Wednesday night, we therefore fixed upon that night for carrying our design into execution. We knew that there was usually nobody in the office from eight to ten o’clock for the purpose of watching it. I do not remember who it was that first proposed robbing the Excise Office.

[Sidenote: John Brown]

27. JOHN BROWN _alias_ HUMPHRY MOORE, sometime residing in Edinburgh, present prisoner in the Tolbooth of Canongate of Edinburgh, called.

Mr. WIGHT, for the pannel, William Brodie--My Lords, before this witness, who is also a _socius criminis_, is called in, I have to object to his being received as a witness upon grounds which, I imagine, are insuperable. This man, my Lords, was convicted at the General Quarter Sessions for the county of Middlesex, by the verdict of a jury, of stealing twenty-one guineas and fourteen doubloons, in consequence of which he was adjudged to be transported beyond the seas for the term of seven years, in April, 1784, and this is instantly instructed by a copy of the said conviction, under the hand of the proper officer, now produced; and further, the witness, under the name of John Brown, was banished by the Justices of Peace for Stirlingshire from that county in September, 1787, upon his confessing a theft committed at Falkirk, as appears from a certified copy of the said sentence under the hand of the Clerk of the Peace of the said shire. I shall not take up your Lordships’ time in proving that a man thus infamous is altogether inadmissible as a witness in any cause, especially where life is concerned, and I have no doubt that your Lordships will sustain the objection.

The SOLICITOR-GENERAL--My Lords, in answer to this objection, I here produce His Majesty’s most gracious pardon in behalf of this witness, under the Great Seal of England, dated 28th July last, which, by the law of England, renders the witness habile and testable.

Mr. WIGHT--The production of this pardon, my Lords, will by no means answer the objection which I have stated. The infamy attending the commission of the crimes of which Brown has been convicted is not, cannot be, done away by the King’s pardon. He still remains a man unworthy of credit, in whom the gentlemen of the jury can place no confidence. His situation, in short, is just the same as it was before the granting of the pardon, unless that the pardon saves him from the punishment awarded against his crimes. This doctrine is delivered by Sir George Mackenzie in very strong terms, and it is the doctrine of common sense.

[During this time some desultory conversation took place about what was the felony for which Brown was sentenced, the Lord Advocate saying it was only swindling.[11]]

The LORD ADVOCATE--My Lords, as to the sentence against Brown, supposed to have been pronounced by the Justices of Peace for Stirlingshire, it does not appear with certainty, nor do I know whether Brown, the witness, be the same person who was the subject of that sentence or not, as the certified copy of the sentence of banishment produced is against one John Brown from Ireland. I admit, my Lords, that if he had been tried by a proper Court and convicted in consequence of the verdict of a jury that the objection would have been a very good one; but the sentence of the Justices of Peace here produced cannot afford an objection which your Lordships can sustain in bar of his evidence. Granting him to be the same person, there is here no trial or verdict of a jury. It appears that a petition was presented for him to avoid the trouble of a trial, and the Clerk of Court has most improperly taken down an acknowledgment of his guilt. There was no occasion for his accusing himself, it was sufficient for him to state that he wished to avoid the consequences of a trial; and therefore, my Lords, this sentence can in no view of the matter be held to infer his actual guilt of the crime laid to his charge before the Justices. My Lords, I admit in the fullest manner the effect of the first sentence against Brown for the felony, but I maintain that it is completely taken off by the subsequent pardon.

I do not reckon myself obliged to answer to the general objection of _socius criminis_: that is fully answered by the practice and the uniform course of your Lordships’ decisions. A specialty was argued in the case of Ainslie; but this witness is in a situation very different. He never was charged with this crime, nor was he ever liable to the temptation which it was alleged, for the pannels, might have influenced the former witness.

My Lords, many daring robberies have been committed in this city, and, in spite of the utmost vigilance of the police, no discovery could be made of the perpetrators. At length, upon the Friday after the robbery of the Excise Office, Brown went to Mr. Middleton, a person employed by the Sheriff, and told him such circumstances as led to a discovery. From this, my Lords, I am bound to suppose that he had repented of what he had done, and I conceived it to be my duty not to prosecute him, but, on the contrary, to make use of his evidence as a means of discovery of the rest of his accomplices. After this, my Lords, it was found that he had been convicted at the Old Bailey. I then applied for advice to those whom I thought were best enabled to assist me concerning the law of England on this subject, and I learned, my Lords, that the proper method to be followed was to apply for a pardon. There is no occasion for making a mystery of the matter, it was the Recorder of London I did apply to. He is a gentleman necessarily more versant in these matters than any other man in the kingdom. By his advice, I applied for a pardon and accordingly obtained it.

But, my Lords, there was no occasion for a pardon in this case; the witness, in my opinion, would have been just as admissible without it. The sentence by which he was condemned is to us entirely a foreign sentence, and, therefore, upon the universally received principle of law, that _statuta non obligant extra territorium statuentis_, it can be of no force with us, unless from that politeness, termed _comitas_ by the law, which civilised nations pay to the decrees of each other, and, accordingly, unless your Lordships shall, _ex comitate_, be disposed to give effect to the decree of a foreign Court, this objection is such as cannot even be listened to in the first instance, the crime said to be committed by Brown having been committed in England, and the sentence pronounced against him being the sentence of an English Court.

My Lords, your Lordships in another capacity, in the civil Court, do not as a matter of course give effect to foreign decrees. In every instance you must be satisfied that the decree is consistent with equity and justice before you interpone your authority. And this holds more particularly in such decrees as infer a penalty, in which case, indeed, some lawyers think, and my Lord Kames declares himself to be clearly of that opinion, that no weight whatever is attached to a foreign decree.

But, my Lords, even laying this out of the question, His Majesty’s most gracious pardon, which I hold in my hand, puts an end to all objection at once. There is not, indeed, a clearer point than that a pardon from the King takes away the effects of any former sentence, and makes the person pardoned precisely the same person he was before the sentence was pronounced against him.

This question must be judged of according to the law of England, and English authorities are express to this purpose. Thus Blackstone, B. iv. ch. 31, in fine says, “The effect of such pardon by the King is to make the offender a new man, to acquit him of all corporeal penalties and forfeitures annexed to that offence for which he obtains his pardon, and not so much to restore his former as to give him a new credit and capacity.” And another authority, my Lords, equally respectable--I mean Bacon’s Abridgment, p. 809--lays down exactly the same doctrine. This witness, therefore, is and must be admissible, notwithstanding the sentence pronounced against him. He has a new credit and capacity given him by this pardon, which enables him to be adduced as a witness, whatever may have been his character previous to obtaining it.

The authority of Sir George Mackenzie has, indeed, been stated as in opposition to this argument. But things have varied so much since his days, and his opinions are frequently so loose and confused, that no weight can be given to his opinion in opposition to such direct and recent authorities as I have quoted. It is perhaps no great authority, my Lords; but I hold a newspaper in my hand, from which it would appear that a case in England exactly in point was determined in July last in consistency with the authorities I have mentioned; and another case in the year 1782 was determined in the same manner.

As to the sentence of the Justices of Peace, I confess I was surprised, my Lords, that the counsel on the other side of the bar should have urged it, when in so late a case as that of _Brown and Wilson_, in the year 1774, your Lordships found that a sentence of the Justices of Peace was no bar against the admissibility of a witness, nor any sentence which proceeded without a jury. I therefore sit down, my Lords, in the full conviction that your Lordships will over-rule the objection against this witness.

The DEAN OF FACULTY--My Lords, this case, so far as I know, has never yet been decided by your Lordships. The witness is in a new situation, and in one so extraordinary that it well deserves your Lordships’ serious consideration, whether he ought, in law or in common justice to the pannels, to be allowed to give evidence. My Lord Advocate is mistaken in saying that Brown was not under the same apprehension with Ainslie when he accused the pannels; for I cannot conceive that any man could have better ground than he to be afraid of the justice of his country; and certainly no man ever spoke under more strong and immediate fears of a halter.

When he made his confession he was under sentence of death, at least he knew well that he was liable to a capital conviction for not having transported himself conformable to the sentence at the Old Bailey. He knew that a pardon was necessary to preserve his life, and that it was impossible for him to remain in safety without it in this country. The game he played, therefore, was very evident--he did not accuse Mr. Brodie at first, and gave no information whatever but against the pannel Smith. My Lords, was it unnatural for a man of his complexion in such circumstances to have recourse to fiction? Accordingly, whenever Mr. Brodie was taken, a strong accusation against him was for the first time made by Brown, and this pardon was the immediate consequence. Let your Lordships reflect upon the whole of his conduct; let the jury take it into their most serious consideration; and I will aver that no evidence was ever offered under more suspicious circumstances.

The effect of the pardon, my Lords, is another point, and it is one which involves the most important consequences.

It is admitted on the other side of the bar, and, indeed, without their admission it is in evidence, that this man John Brown or Humphry Moore was sentenced to transportation by the Courts in England for a felony. It is not denied that a sentence of this nature precludes of itself the admissibility of that person as a witness against whom it is awarded, but it is said that this sentence is a foreign decree, to which we are not bound to pay any respect.

My Lords, are not the Courts of this country in the practice every day of paying respect to foreign decrees? It is true that the decrees of foreign Courts receive effect in this country only _ex comitate_. But it is nothing to me upon what principle the Courts here give effect to such decrees, if effect be really given. And that such respect is paid to foreign decrees, unless where they are contrary to our own law, is a position which no man will contest. To what purpose, then, is it stated, that this is the sentence of a foreign Court, unless it be stated at the same time that it is a sentence which your Lordships would not have pronounced in the same circumstances? The crime of which Brown was convicted is equally punishable in both parts of this island, and the effects of the sentence following upon the crime must, therefore, upon the universal principles by which all nations are now guided, be the same in both parts of the island also. The objection, then, that the decree is foreign, cannot be listened to by your Lordships without overturning those settled maxims by which your decisions, both in this Court and in another Court where all your Lordships sit, are constantly directed.

But His Majesty’s pardon, it is said--this pardon now produced to your Lordships, and obtained for the sole purpose of endeavouring to enable this man to be a witness--has now placed him in the same situation as if he had never been condemned.

My Lords, I have heard it said that the King could make a peer, but that he could not make a gentleman; I am sure that he cannot make a rogue an honest man. This pardon, therefore, at the utmost can only avert the punishment which follows from the sentence. It cannot remove the guilt of this man, though it may save his life. Can it, indeed, my Lords, be supposed that this amiable prerogative, lodged in the hands of the King for the wisest of purposes, and to be exerted by him as the father of his people, should have the effect to let loose persons upon society, as honest, respectable men, as men who may be witnesses, who may be jurymen, and may decide upon your lives or my life to-morrow, although these very persons were yesterday in the eye of the law and the eye of reason held as hardened villains from whom no man was safe, considered as wretches guilty of, and fitted to, perpetrate the most abominable crimes; and that although every man knows them to be the same as they were, and is equally afraid of, and would as little trust them as before they obtained a remission of their crimes?

My Lord Advocate has talked of their obtaining a new credit by the pardon. What is this, my Lords? Can it be a new credit to cheat and rob and plunder? Is this pardon to operate like a settlement in a banker’s books, when he opens a new credit upon the next page, after old scores are cleared off? My Lords, it is impossible. To suppose a pardon to have such effects is to suppose it the most unjustifiable of all things.

My Lords, I am willing to allow that this pardon should have every consequence beneficial to Mr. Brown; that he should derive all the benefit from it which the pardon itself expressly declares to be competent to him, and that no part of the punishment to which he was liable before this extension of His Majesty’s clemency can now be inflicted upon him. But this is very different from the proposition, that he is a good evidence in this or any other cause; it is no part of his punishment that he is not allowed to swear away the life of his neighbour; on the contrary, it is rather a favour to him. That he is intestable was never a punishment even before the pardon was granted; it is only a consequence of the sentence for a crime of an infamous nature which fixes an indelible character upon him, and describes him as a man whose testimony is worthy of no regard; and that character is no more removed by the pardon than the original truth and authenticity of the evidence upon which he was convicted is falsified by it; on the contrary, the pardon contains in itself the most unexceptionable evidence of the guilt and infamy of the person who is obliged to plead it.

Authorities have been quoted on the other side of the bar, but they are not the authorities of our law. The authority of Sir George Mackenzie is expressly in their teeth. This is the second time to-day, my Lords, that I have heard this respectable writer talked lightly of. I cannot but express my surprise at it. He was undoubtedly a man of the highest abilities, and he is our only criminal lawyer. I think he is the most intelligible and clear of all our writers, and I have read him with great profit. But his authority is to be held light in this matter, because his opinion is decisive in favour of this objection--an opinion which, though it were not delivered by such high authority in our law, is yet so much in unison with the common reason and common feelings of mankind that I should deem it to require no other support.