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.
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.
[Illustration: Lord Stonefield.
(_After Kay._)]
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.