Trial of Deacon Brodie

by Unknown

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.

My Lords, are not the Courts of this country in the practice every day 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.