Part 14

The sentence of the Justices of Peace of Stirlingshire, it has been said, forms no objection to the admissibility of this witness, because it was pronounced without a jury, as all their sentences are. My Lords, this is not the reason. Sorry I am to say that, by a decision of your Lordships, magistrates of burghs and Sheriffs of counties have been found entitled to whip and imprison British subjects without a jury. But will it be maintained that persons so punished will not be accounted infamous and their testimony rejected?

My Lords, the reason why the sentence of the Justices of Peace was held not to bar the admissibility of a witness was because they are not a Court of record, and your Lordships could not be legally certified of what was their judgment. Could this information have been legally obtained the _infamia facti_ would have been sustained as sufficient without the _infamia juris_.

A man is equally infamous in either case if his punishment is merited. And why is _infamia facti_ not always admitted in our law as a sufficient bar, but merely because all objections to witnesses must be instantly verified, which would produce an infinite number of trials within trials, and, besides, which is far worse, would be trying a man without a libel, without allowing him time to produce witnesses, and without a jury. But the _infamia facti_, if proved--and in this case the proof is beyond dispute--is equally strong to render a witness inadmissible as any _infamia juris_. For it is not merely the sentence of a Court which makes a man intestable, but the fact that he is a villain. And this is an additional proof that His Majesty’s pardon, which undoubtedly does not justify the act, though it saves the actor, cannot take away the infamy attendant upon the crime of which he stands convicted.

But the matter does not end here. My Lords, supposing that His Majesty really had this incomprehensible prerogative of changing, by a sheet of parchment, a corrupt and dishonest heart, and cleansing it from all its impurities, I still maintain that it has not been exercised. Where is the clause in this pardon restoring Brown to his character and integrity? You have heard the pardon read, and there is no clause in it to that effect. He is screened against punishment and every effect of a prosecution; but it would have required a very express clause indeed to give the pardon the additional force of removing the infamy of his sentence, and surely the warmest advocates for prerogative cannot be offended at its being said that the King must exercise that prerogative before its power can be felt.

My Lords, I shall trouble you with nothing farther upon this subject, which appears to me very clear. The sentence of the English Court is no more foreign than those to which the Courts of Scotland give effect every day. It is such a sentence as your Lordships would have pronounced had the crime been committed in this country. His Majesty’s pardon cannot, by our law, restore this man from the infamy annexed to this sentence, and common reason tells us that it is beyond the power of kings, because it is beyond the power of man, to reinstate a man in his original integrity by their fiat.

Lord HAILES--My Lords, the Dean of Faculty has done more for Sir George Mackenzie than I was ever able to do, though I studied him before the Dean of Faculty was born. Sir George Mackenzie’s work on the criminal law is a medley of opinions formed from the civilians, with what occurred in his own practice, and desultory observations upon them. He is exceedingly inaccurate. He mentions, for instance, an Act of Sederunt which has no existence, and in many other instances talks equally loosely.

With regard to the present objection, my Lords, it is clear that the decree is foreign. By the articles of the Union, our own laws and forms of procedure are secured to us, and we have as little connection with those of England as with the laws of Japan, being as little bound to obey them. At the same time there is always a _comitas_ to foreign decrees, where not inconsistent with our own law. Here, however, there is no necessity to enter into this question, as the sentence in this case is superseded by the pardon. The sentence of the Justices of Peace weighs nothing with me. No such sentence ought ever to render a witness inadmissible, for Justices of Peace are always ready enough to banish a man who is accused from their own territory. I am therefore for repelling the objection.

Lord ESKGROVE--My Lords, I think this a matter of very great importance. I am clearly of opinion that it is beyond the prerogative of the Crown to render a person capable of being a witness by granting him a pardon. I know no such prerogative.

But, my Lords, the decree here is a foreign decree, and in judging of it we must consider the law of the country where it was pronounced, and from the authorities, my Lords, which have been quoted, it appears that a pardon in England does take off the whole consequence of the sentence. And in my opinion it would be highly unjust that the English sentence should be allowed to militate against a person exactly as it would do in England and not at the same time to give the pardon the same effect which it would have in that country. The _comitas_ due to the sentence of an English Court is also due to the pardon, or to the sentence which an English Court would pronounce in consequence of that pardon. I cannot figure a more grievous punishment than that of being held out as a person incapable of giving testimony in any cause; and if by the law of England all the consequences of a sentence are done away by His Majesty’s pardon, then this goes among the rest.

Had the crime been committed, or the sentence pronounced, in Scotland I would have had another opinion. I do not sit here, my Lords, to pass judgment upon authors long since dead. But the same opinion is delivered by Dirleton, which is given by Sir George Mackenzie; and _his_ authority will not, I suppose, be questioned by any lawyer. And I hold it to be the law of Scotland, that a pardon does not restore the person pardoned, so as to free him from the infamy attending his crime. But as the law of England--the law of that country where the crime was committed, and the sentence pronounced--says otherwise, I am bound to repel the objection.

Lord STONEFIELD--My Lords, I am for repelling the objection. It was repelled in the case of Lord Castlehaven in the State trials.

Lord SWINTON--My Lords, this is a question of so much delicacy and importance that I could have wished more time to have weighed what I have heard from the counsel than the forms of Court will admit of.

The question is--Whether His Majesty’s pardon did so far restore John Brown to the character and reputation he held before his conviction as to make his evidence admissible in the present trial?

In substance, my opinion concurs with that of my brethren, for repelling, in the circumstances of the present case, the objection to the admissibility of the witness, leaving his credit to the consciences and good sense of the jury.

Had John Brown’s conviction proceeded upon a jury trial in Scotland, I would have been of a different opinion. There are, in the first place, several texts in the civil law upon this topic, all clearly purporting that a remission, so far from restoring, even blemished, the reputation of him whom it relieved from punishment. Next, our municipal law is perfectly explicit to the same effect. The statutes of Robert I., among others therein debarred from giving evidence, mentions convicts redeemed from justice. This act is expressly quoted and laid down as law by Sir George Mackenzie, who is, at least, our most ancient author upon the criminal law, and there is no practice or decision to the contrary.

These observations, however, I do not apply to the present case, for here the conviction and sentence are from England. The infamy, therefore, disabling Brown to be a witness arising in the law of that country, and coming here, must bring its character and construction and effects along with it.

I observe that one of these effects was the restoring a criminal pardoned to the state and character that he held previous to the conviction. The authorities referred to by the Lord Advocate prove this, and, in addition to these, I shall only mention to your Lordships Mr. Justice Buller’s Treatise on Trials, a book of great authority, which lays down that if a person found guilty, on an indictment for perjury at common law, be pardoned by the King, he will be a good witness, because the King has power to take off every part of the punishment.

As to the sentence of the Justices of Peace of the county of Stirlingshire, banishing Brown by his own consent from that county, no stress can be laid on it, as it is now a settled point that no sentence of an inferior Court, proceeding without the verdict of a jury, is sufficient to set aside any person from being a witness.

The LORD JUSTICE-CLERK--My Lords, I will not say a word about the sentence of the Justices of Peace, nor of what would have been the case had the crime been committed, or sentence pronounced, in Scotland. I would hold the decree in England _pro veritate_, and give it effect accordingly. But, my Lords, if the pardon frees this man from the penal consequences of his sentence, although I were to hold that it does not rehabilitate him in Scotland, still it leaves only the _infamia facti_, for the _infamia juris_ is, _eo ipso_, done away. And, my Lords, nothing can set aside a witness unless _infamia juris_.

The Dean of Faculty argued this objection with great ingenuity, but he founded his whole argument on the proposition that an _infamia facti_, if it was capable of proof, was a sufficient objection to the admissibility of a witness; and, indeed, unless this proposition were true, his whole argument falls to the ground. But, my Lords, this proposition is evidently fallacious, and I need use no other instance than that of Ainslie, who, like every other King’s evidence, admitted in the very bosom of his deposition an _infamia facti_, in so far as he was concerned in the commission of the crime charged against the pannels, and yet it was not even pretended that this was an objection to his admissibility; and your Lordships every day allow the examination of witnesses in the same situation. I am therefore clear for repelling the objection.

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.

[The witness was then called in and sworn.]

The LORD JUSTICE-CLERK--John Brown, you are called here to give evidence regarding a matter in which it is generally supposed that you yourself had some concern. You are now informed by the Court that although you may have had such a concern you are in no danger to speak the truth, because, being adduced as a witness against the prisoners at the bar, you cannot be tried for the crime of which they are accused; and you will take notice that whatever you may have said against these men, in the different declarations which you emitted before the Sheriff, which are now destroyed, you are now bound by the great oath which you have sworn to tell the truth; and that if you say anything to the prejudice of these men that is not true or if you conceal any part of the truth, with a view to favour them, you will thereby be guilty of the crime of perjury, for which you will be liable to be tried by this Court, and severely punished, and you will commit a heinous offence in the sight of the Almighty God, and thereby endanger your immortal soul.

WITNESS--I am acquainted intimately with both the pannels, and have been frequently in company with them, and with Andrew Ainslie, then a shoemaker in Edinburgh. I have met Brodie often at Smith’s house and other places. I know that the General Excise Office in Chessels’s Buildings was broken into upon Wednesday, the 5th of March last; I was myself one of them that broke into it, and Andrew Ainslie and the two prisoners were along with me. George Smith and I were within the office, Brodie was at the door, and Andrew Ainslie was without, keeping watch. We had resolved three months before to break into it; and on the 30th of November last, the night on which the Free Masons made a public procession last winter, Smith, Ainslie, and I went to the Excise Office and unlocked the outer door with a false key. We went in together, and opened the inner door to the hall with a pair of toupee irons, but none of the keys we had would open the cashier’s door. Smith said a coulter would be a good thing to open it with. Thinking it too late to remain longer, we came out again; but we could not lock the outer door with the key, and therefore left it unlocked. Last spring Ainslie and I went to Duddingston, and drank a bottle of porter in a house there; afterwards we went into a field in the neighbourhood, in which there were two ploughs, and carried off the coulter of one of them, which we hid in Salisbury Crags. On the evening of the 5th of March last, which was two or three days afterwards, when it was about dusk, Ainslie and I went out to Salisbury Crags for the coulter, and brought it in with us to Smith’s house. Smith was at home, but Brodie was not yet come, although we expected him. The hour at which we had agreed to meet was seven, but Mr. Brodie did not come until near eight. The purpose of our meeting was to go and rob the Excise Office that night. We were in Smith’s room above-stairs when Brodie joined us, and we there drank some gin and “black cork,” and ate some herrings and chicken. By “black cork” I mean Bell’s beer. Mr. Brodie was then dressed in black; in the preceding part of the day I saw him in white or light-coloured clothes. I do not remember that he had a great-coat on when he came to us at Smith’s in the evening. When he entered the room he took a pistol from his pocket, and repeated the verse of a song of Macheath’s from a play, words like--“We’ll turn our lead into gold,” or such like.[12] After we were all met together, it was agreed upon that Ainslie should remain on the outside of the Excise Office, within the rails, with a whistle, to give the alarm in case of danger; that Brodie was to be stationed within the outer door for the same purpose; and that Smith and I should go into the cashier’s room. Accordingly, Ainslie left Smith’s first, and in some time after I followed. Brodie was not disguised, but Smith and I had crapes in our pocket, and Smith had likewise a wig, which, I believe, had once belonged to Brodie’s father. When I came to the mouth of the entry to Chessels’s Buildings, I met the old man who usually locked the door coming out, and went after him and saw him go home. My reason for so doing was to see that he had not gone on an errand and to return. When I came back to the court I met Brodie in the entry, who told me that Smith had gone into the office, and desired me to go in. I went down the close with him, saw Ainslie at his post, and received the coulter, or “Great Samuel,” from him, and carried it in with me to the office. I found the outer door open and Smith in the hall. The outer door of the cashier’s room was opened by Smith with a pair of curling irons, and I assisted him to force open the inner door of the cashier’s room with the coulter and a small iron crow. After we got in, Smith, who had a dark lanthorn with him, opened every press and desk in the room where he suspected there was any money; some by violence and others with keys which we found in the room. We continued there about half-an-hour, and found about sixteen pounds of money in a desk in the cashier’s room, which we carried away with us. It consisted of two five-pound notes, six guinea notes, and some silver. We heard some person come upstairs, and cocked our pistols, which were loaded with powder and ball. Smith said he supposed it was some of the clerks going into one of the rooms. We heard no whistle while we were in the office. When we came downstairs, Brodie and Ainslie were both gone. We left the outer door of the Excise Office unlocked, and carried the key away with us. We then came up to the Canongate, and went across it, and down another street a little below--Young’s Street. I stopped in the middle of the last street, pulled off my great-coat and gave it to Smith. I then returned, went down to the Excise Office door, where everything seemed to be quiet; afterwards I went to Smith’s house, where in a little I was joined by Smith, and soon afterwards by Ainslie. I did not remain there long, when Smith recommended it to me and Ainslie to go over to Fraser’s house in the New Town, that we might avoid suspicion; and we went accordingly. I knew at the time that Smith was making a key for the outer door of the Excise Office. [Here the witness was shown a key.] That is the key he so made, and with which he opened the door. We had three pair of pistols along with us, all of which were previously loaded by Smith with powder and ball. [Here the pistols libelled on were shown the witness.] These are a pair of them, but whether that pair was carried to the Excise Office by Smith or me I cannot say. I saw Mr. Brodie have a pistol in his hand in Smith’s house. When Brodie came to Smith’s first that night he brought with him some small keys, and a double pick-lock, which we all looked at. [Here the pick-lock libelled on was shown to the witness.] This is the same that was used on that occasion. On Friday, the 7th of March, I was sent for to Smith’s house. Brodie, Smith, and Ainslie were there, and the money which we got in the Excise Office was then equally divided between us. I got about four pounds from Brodie to my share. I saw all the money in Smith’s room above-stairs before it was divided, and there were two five-pound bank-notes amongst it. On the same Friday evening, I went with Smith and Ainslie to Drysdale’s, in the New Town, and saw Smith change one of the five-pound notes there, when purchasing a ticket for his wife in the mail-coach to Newcastle. I went to William Middleton on Friday night, the 7th of March last, and told him that I wished to make a discovery as to the late robberies; he carried me the same night to Mr. Scott, the Procurator-Fiscal, but I did not at that time mention anything of Brodie’s concern in them. The next day I was sent to England to trace some goods taken from Inglis & Horner’s shop. I returned on the 15th of March, and was the same day examined by the Sheriff. I was informed that Smith had emitted a declaration, informing of Brodie’s guilt, in consequence of which he (Brodie) had absconded, and then for the first time I mentioned that Mr. Brodie had been concerned with us.[13] Ainslie informed Smith and me that he had seen two men come up the close before he quitted his post at the Excise Office and went away. Smith carried the money which was found in the Excise Office away with him, and he afterwards gave it to Brodie, who made a fair division of it on the Friday. On the Thursday I did not see him.

Lord HAILES--John Brown, you have already been told by the Court that you ought to pay no regard to what was contained in your declarations before the Sheriff, and that, whatever you may have formerly said, you cannot now hurt yourself by speaking the truth. I intreat you to reflect on the evidence you have given this night, and if you are conscious of having said anything which you ought not to have said, that you may say so to the Court and to the jury. It is not as yet too late, but if you neglect the opportunity which you now have it will never recur to you again; and I earnestly desire you to beware of this, that if you have said anything this night to the prejudice of these men at the bar that is not true, and if you do not undeceive the Court and the jury before you leave this house, you will commit a most heinous sin against the God of heaven, in whose presence you now stand, and you will be guilty of perjury and of murder.

Cross-examined by the DEAN OF FACULTY, for William Brodie--When you went first to Mr. Scott, the Procurator-Fiscal, did you say anything concerning the breaking of the Excise Office?

WITNESS--I did.

The DEAN OF FACULTY--Who did you say was concerned with you?

WITNESS--George Smith. I did not mention either Brodie or Ainslie until I returned from England.

The DEAN OF FACULTY--Are you sure that Mr. Brodie brought his pistols to Smith’s in the afternoon?

WITNESS--I am certain.

The DEAN OF FACULTY--Did you not say that when he came to Smith’s before eight o’clock he had his pistol in his hand?

WITNESS--I did.

The DEAN OF FACULTY--How could he have left them at Smith’s, then, in the afternoon?

WITNESS--I did not say he left them there; he brought them there, but carried them away with him again. I am certain as to the small pistols that Mr. Brodie carried in his breeches pocket.

The DEAN OF FACULTY--Was Mr. Brodie present when the pistols were loaded?

WITNESS--He was.

The DEAN OF FACULTY--When did Mr. Brodie first come to Smith’s that day, and how was he dressed?

WITNESS--He came in coloured clothes, between dinner and tea.

The DEAN OF FACULTY--Might that be four o’clock?

WITNESS--I could not tell what o’clock it was.

The DEAN OF FACULTY--Was it after three o’clock that afternoon?

WITNESS--I am not certain.

The DEAN OF FACULTY--Was it after two o’clock?

WITNESS--Yes, I am certain it was.

The DEAN OF FACULTY--Were these the pistols he brought with him? [The pistols produced.]

WITNESS--No, not these; I did not say these, but another pair, since the truth must be told. Do not think to trap me; you may make something of me by fair means, but not by foul. I do not understand the meaning of being thus teased by impertinent questions.

The DEAN OF FACULTY--The more violent the gentleman is, so much the better for my client. The jury will take notice of the manner in which he gives his evidence.

Lord ESKGROVE--My Lord Justice-Clerk, the witness should be told that he ought not to talk in that manner to the counsel.

The LORD JUSTICE-CLERK [to witness]--Mr. Brown, you are going too far; it is the duty of these gentlemen to put any questions to you which they think proper, relating to the crime charged.

WITNESS--My Lord, in giving my evidence, I have said nothing but the truth, and I have rather softened the matter than otherwise, with regard to Mr. Brodie.

The DEAN OF FACULTY--At what hour, sir, did you go to the Excise Office on the night you have mentioned, and when did you return to Smith’s?

WITNESS--As I was going down to the Excise Office the clock struck eight, and I was back again at Smith’s house about nine o’clock.

Cross-examined by Mr. JOHN CLERK, for George Smith--Pray, sir, how do you know that to be the key with which Mr. Smith opened the door of the Excise Office? You said just now that you were not present when Smith opened the door; that he was in before you arrived.

WITNESS--I know very well that that was the key, because I knew he made it for that purpose.

Mr. JOHN CLERK--But how do you know that he opened the door with that key on the 5th of March?

WITNESS--I know he made the key so far back as November last. I know the key very well; there is not a key in five hundred like it. You will not show me such a key in Edinburgh. There is no smith in this city could make such a key.

Mr. JOHN CLERK--That is no answer to my question.

The LORD JUSTICE-CLERK--It is enough to satisfy any sensible man.

Mr. JOHN CLERK--It is for the jury, my Lord, to judge of that.