from what you see on the table.
WITNESS--I am certain that it was in a green cloth they were found.
[Sidenote: James Murray]
24. JAMES MURRAY, sheriff-officer in Edinburgh, called in and sworn.
WITNESS--I was employed, along with Alexander Williamson and some
others, to search the prisoner’s (William Brodie) house upon the 10th of
March last. In the course of the search we found a pair of pistols in a
green cloth covered with earth in the fireplace of a shed. I think that
it was myself that dug them out of the earth. [Here the pistols libelled
on were shown to the witness.] These are the pistols that were so found.
I afterwards saw one part of the dark lanthorn found in a necessary
house, and another part of a dark lanthorn found in a pen where
game-cocks had been kept. I accompanied the other prisoner, George
Smith, upon the 16th of March, to the bottom of Allan’s Close,[6] and he
there pointed out a hole in a wall, where, he said, there were some
articles hid. I put in my hand and brought out a false key, a pair of
curling irons, and a small crow. [Here the articles formerly produced
were shown to the witness.] These are the same that were so found.
Cross-examined by Mr. JOHN CLERK--You say that you put in your hand and
brought out these articles; are you sure it was not George Smith who did
so?
WITNESS--I put in my hand; George Smith could not, being handcuffed.
[Sidenote: George Williamson]
25. GEORGE WILLIAMSON, messenger-at-arms in Edinburgh, called in and
sworn.
WITNESS--I was employed with others to search the house of the prisoner,
William Brodie, on the 10th of March last, and found several keys of an
uncommon construction in a room off Brodie’s shop. We likewise found a
pair of pistols wrapped in a green cloth under the earth in the
fireplace of a shed in the woodyard. These were discovered by Smith, the
prisoner, poking with an iron. [Pistols shown to witness.] These are the
same that were so found. We also found several pick-locks in Mr.
Brodie’s house, all of which were lodged by me in the Sheriff-Clerk’s
Office. [Here the pick-locks were shown to witness.] These are the same
pick-locks that were so found. [The counsel for the pannels here
repeated the objection against adducing the pick-locks, as mentioned in
the general objection and interlocutor before taken down.] I was sent in
quest of Mr. Brodie, who was supposed to have gone to London, by Mr.
Scott, the Procurator-Fiscal, upon the 11th of March last. I left
Edinburgh about eleven o’clock at night. When I arrived at Dunbar I got
some accounts of him; Mr. Brodie had left that place in a post-chaise.
At Newcastle I was informed that he had taken the “Flying Mercury”
post-coach to York; and I was afterwards informed that he had continued
in it till he came to London. When I arrived in London I was informed by
the coachman that Mr. Brodie did not go with the coach to the stage
office, but that he had quitted it at the foot of Old Street,
Moorfields. I waited upon Sir Sampson Wright, and at his desire I called
upon Mr. Walker, solicitor-at-law in the Adelphi, and inquired for Mr.
Brodie. He told me he was bad, and that I could not see him. I said I
had a letter for him and wanted only to deliver it; but Mr. Walker
replied that it might perhaps be dangerous to allow me to see him.[7]
The DEAN OF FACULTY--My Lords, without meaning any reflection on the
witness, whom I know and believe to be a very good man and an active
officer, the greatest part of what the witness says is “hearsay.” He
tells your Lordships that he was told one thing at Dunbar; that he
received another piece of information at Newcastle; that a coachman told
him so-and-so in London, and that Mr. Walker said this, that, and the
other thing. My Lords, this is exceedingly improper. I have been taught
to understand that in criminal trials the best evidence that can be got
ought always to be brought; and surely it will not be pretended that
that has been done in the present case. In a question of this kind,
hearsay evidence is not admissible. The witness has said that he was
informed so-and-so by coachmen; why were not these coachmen called as
evidences? He has given you an account of a conversation that passed
between him and Mr. Walker; why is not Mr. Walker brought here to speak
for himself?
The LORD ADVOCATE--My Lords, it was thought a material circumstance to
be proved that the prisoner, William Brodie, fled from this country;
that he secreted himself in London; and the witness, who was sent in
pursuit of him, was considered as a proper person to be examined as to
the fact. In the course of informing the Court what he himself did he
has necessarily mentioned what passed between himself and some other
persons. This cannot be said to have been hearsay evidence, being what
the witness himself knows.
My Lords, the Dean of Faculty has asked why the different post-boys and
coachmen who drove the prisoner to London, why Mr. Walker and others
were not all cited as witnesses? The bringing forward of such a variety
of witnesses is not only unnecessary but expensive. By the forms of
criminal procedure in this country a trial must be finished at one
sederunt; but, my Lords, if the mode contended for by the Dean of
Faculty had been pursued in the present case this trial could not have
been finished in a month.
The LORD JUSTICE-CLERK--George Williamson, you will confine yourself to
what you know or did yourself, and do not speak of what you were told by
others.
WITNESS--I searched for the prisoner in London, but could not find him.
I also went out to Deal and Dover, but could receive no intelligence of
him. Accounts were afterwards brought to this place that he had been
apprehended in Holland and brought to London. I went to London for him.
He was delivered over to me at Tothilfields Bridewell, and I conducted
him to this place and lodged him in the Tolbooth.[8]
[Sidenote: Andrew Ainslie]
The SOLICITOR-GENERAL--The next witness is Andrew Ainslie.
The DEAN OF FACULTY--Before this witness is called I rise to state to
the Court an objection against his admissibility. This witness is
alleged to have been guilty of the same crime of which the pannels at
the bar now stand accused, and therefore the objection of his being a
_socius criminis_ might apply to him. But although by our former law the
objection of a witness being _socius criminis_ might render him
inadmissible, yet I have no occasion, nor is it my intention, to insist
on the present objection in that view, for I freely own that the
practice of this Court has for some time past, and with great propriety,
I think, over-ruled that objection.
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
[Illustration: Lord Eskgrove.
(_After Kay._)]
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.