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.
Witness—I am acquainted with both William Brodie and George Smith, the 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.