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.
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.