laws; and he would ask whether, in the against him, but he wished, in the first intransaction under discussion, the law offi- stance, to endeavour to set himself right cers of the Crown in Scotland did not vio- with the House on the charge of having late the sanctity and purity of the laws as practised on the House last session, by palpably, and, indeed, more palpably than making an overcharged statement there, M:Kinley in the crime with which he was or one which had not since been fully subcharged ? [Hear, hear!].

stantiated. The statement which he made What he asked of the House was simply last session was precisely that which had the production of the record of the trial. been described by the noble lord. He had He could not think that the learned lord said that an oath, binding to the commiscould have any objection to be tried upon sion of high treason, had been adminis. that document, the more especially when tered to several hundreds of people in Glasit was considered that it was the manu. gow and its vicinity, and the terms of that facture of himself and his legal colleagues. oath he had had the honour to read to the Such as the record was it was their mak. House. The noble lord had said that he ing, and the detail of what they had had made that statement uncalled for. On done. Guilt might indeed fly from such that point he and the poble lord were a document, but surely, any one pre- at issue. Provided the statement was tending to innocence could neither resist correct, he was persuaded that considering its production, nor dispute its testimony. the subject which the House was discussing he could not possibly anticipate a defence at the time, the report of the'select commit, of such practices. It was quite impossible tee, in which were included statements of that any thing could be said in justification transactions that had occurred at Glasgow, of them; the only difference between him. if it was in his power to communicate to self and the learned lord must be with re- the House any information on that subject, gard to facts, to what actually had taken the noble lord was not entitled to say that place, and he trusted the House, as in such communication was uncalled for. duty bound, would decide that difference Had he not made such communication, he by the production of the record. The should have been guilty of a gross derenoble lord then read the following extract liction of duty. Now, with respect to the from Hume's Treatise on the Laws of Scot- | fact itself. He would not go into the de land, on the subject of tampering with a tail of the evidence before the high court witness. “ If the prosecutor, or any for of justiciary on M‘Kinley's trial; but he him, have tempted the witness with bribe would state, in as few words as possible, or reward, this shall equally exclude his what was the charge against the prisoner, testimony in odium corrumpentis, whether and what'was the issue of his trial. The inthe witness have yielded to or resisted the dictment charged the prisoner with having temptation. Under this head would fall been guilty of administering an unlawful any promise of pardon for other crimes, oath to a great many hundreds of persons provided it came from the prosecutor in Glasgow and its neighbourhood, the or one authorized by him. Any magis. names of many of whom were particulatrate who so far forgets his character, and rized. The issue of his trial was a vermistakes his powers, as to give assurances dict by the jury of “ Not proven." He of this sort, is indeed guilty of a wrong spoke in the hearing of gentlemen oppowhich may reflect on himself.” [Hear, site, who were intimately acquainted with hear !] The noble lord concluded by the forms of law, and the distinction of moving,

verdicts in Scotland. They would tell “ That there be laid before this House, the House whether or not he was incorrect a Copy of such parts of the Books of Ad- in stating, that the distinction in Scotland journal of the High Court of Justiciary in between the verdict of“ not proven” and Scotland, as contain the several libels or the verdict of “not guilty,” was this: indictments, and the evidence, and the that when the jury were satisfied that the verdict and judgment, and all other pro- corpus delicti charged in the indictment ceedings in the case of Andrew M.Kinley, was proved, and that the person charged who was tried before the said High Court was implicated in the guilt, although the leof Justiciary at Edinburgh on the 19th of gal evidence was insufficient to convict him, July, in the year 1817."

they returned a verdict of “not proven;" The Lord Advocate said, he rose to take but that, if they were of opinion no corpus the earliest opportunity of meeting the delicti had been proved, they then returned charges which the noble lord had brought a verdict of “not guilty.” In the case in

ness.

question, the verdict of the jury was not He was told by the fort-major, proven."

The inference was—and he that his orders were, to admit no person stated it without fear of contradiction- to see any of the prisoners, without an that the general fact charged in the indict-order in writing from the lord advocate. ment, of an illegal oath having been ad- Application was then made in writing to ministered to several hundreds of persons Mr. Warrender, the crown agent, for adin Glasgow and its vicinity, had been ad- mission to see Campbell, who was stated mitted by that verdict to be well founded. to be a witness to be adduced against the The result of the trial of M.Kinley, had, prisoner, and contained in the list of wir therefore, substantiated the statement nesses served on him. In answer to this which he (the lord advocate) had felt it application, a letter was received from his duty to make in that House last Mr. Warrender, on the part of the lord year.

advocate, refusing the application. This Before he proceeded to any farther ex. witness, it was also understood, was seplanatory details, he would just observe, cluded and kept in close custody, upon a that the noble lord had been incorrectly charge of treason directed against himself. informed with respect to the objection of At all events, his seclusion was by the act the prisoner's counsel to the admissibility and authority of the lord advocate. Supof Campbell as a witness. He held in pose the prosecutor were to take a wit. his hand the notes of the short-hand ness, and to lock him up of his private auwriter who attended on the occasion, and thority, where he could not be got at by who was quite uninfluenced on the subject, those acting for the panel, would it be being, he believed, in no way connected any answer to say, “You might have apwith the parties ; which notes had been plied for a warrant from the court of transmitted to him, and were, he under- justiciary?' The reply would be obvious stood, preparing for the press. Though • You,

the prosecutor, cannot take advanthe noble lord had read the record, he did tage of your own wrong.' not appear to have attended to the nature It appeared, therefore, that the counsel of the objections which his learned friend, for the prisoner objected to Campbell as a the counsel for the prisoner, had made to witness, first, because he had not been sufthe admissibility of Campbell as a witness. ficiently designed in the list of witnesses, He would read to the House from the and secondly, because admittance to him notes which he had described the passage in the Castle of Edinburgh, in order to asto which he alluded. It was the follow- certain the nature of the testimony which ing:

he was prepared to give, had been re« First witness, John Campbell, called. fused; but not at all--as had been asserted Objected to by the counsel for the pri- by the noble lord, because he had been soner on two grounds. Ist, He is not suf- tampered with as a witness. That was an ficiently designed in the list of witnesses. entirely improper and unfounded stateHe is designed prisoner in the Castle of ment. Edinburgh. Under this designation it is One of the most prominent features of impossible for the prisoner to identify the the noble lord's speech was his assertion witness, access having been refused to of the attorney-general's declaration, that him by the express desire of the lord ad. he could not in the due discharge of his vocate. There may be many John Camp duty communicate with a witness previous bells, prisoners in the Castle of Edinburgh. to trial. Whatever might be the practice The object of designing witnesses on the in England, it was impossible, according to list given in, is to enable the panel (pri. the established llaws of Scotland, that it soner) to ascertain who they are, and to should prevail in that country. Some make proper inquiries concerning them. communication with the witnesses 2dly, All access was refused to this John indispensable for the furtherance of pubCampbell, so that the prisoner, and those lic justice. The duties of the attorney gecharged with conducting his defence, were neral of England and the lord advocate of prevented from examining him, to know Scotland were in many respects different. what he knew of the matter imputed. All The lord advocate was not only the public this was done by the act of the prosecutor, prosecutor as the attorney-general was, who is therefore barred, personali excep- but he was likewise a police magistrate. tione, from examining the witness. Appli- This arose from the circumstance of Scotcation was made at the castle by the agent land being a separate government without for the panel, for admission to the wit- having a resident administration. Every

would see, that about the year 1738 and 1739, lord president Forbes, and the lord president Dundas, went to the gaol, and had examinations taken, and that there were convictions upon examinations made in the gaol by the public officer to whom he had alluded. There were some cases which were not to be found in the book. There was one, the case of the son of a viscount, in which the whole of the king's counsel went together, and conducted the precognition. He had stated this to show that there was nothing unusual-nothing extraordinary-in going to the gaol for the purpose even of examining witnesses, in case nothing improper took place during such examinations. And he should then take the liberty of observing, that the lord advocate had a most material interest in the proceedings being regularly conduct ed, that the depositions should be regularly taken, and that informations should be ample and sufficient, before any prisoner was brought up on his trial. When he disregarded that most important duty, he was liable to the persons charged in the penalties of the law, in reparation and damages, if he brought an improper prosecution.

body who knew any thing of Scotland, | ficient evidence of what he had said. He knew that whenever the public tranquillity in that country was threatened, the lord advocate received daily applications from the magistrates in every part of the country, requiring his active exertions for its maintenance. It was therefore an imperative duty on the lord advocate, to take every means of obtaining such information as might enable him to avert any disturbance of the public tranquillity. He was speaking in the presence of persons who knew that from the Urion to the present time such had been the case. The records were in the proper office, which would show, that when any information was required for the security of the subject, that was to be sought from the person who held the office of king's advocate. In that respect the office of lord advocate differed considerably from the office of attorney-general. The latter was not expected to seek for any such information, the duty of obtaining which was was entrusted to the secretary of state. But in Scotland, if the king's advocate should neglect to do any thing which he had stated, it would be to his own peril, if any thing should endanger public tranquillity which he might have prevented. It was necessary that he should take every measure which the secretary of state took, to enable him to prevent dangerous proceedings. And besides being the public prosecutor, and being obliged to manage the public business in court on behalf of the public, he acted in some measure as the grand jury of the country. All precognitions were upon his own motion, upon his own direction to the magistrates, or upon that of the procurator-fiscal; or if they should not be exactly under his own eye, they were transmitted to him or to the depute; and if in the course of his investigation it appeared that all the witnessess were not examined, that there was proof that other persons had not been examined, who might have been so, and that a different line of proceeding might be taken with advantage, he was bound by law to give directions for such farther investigations as might tend to a more satisfactory issue.

With respect to the examination of witnesses by the law officers of the Crown in Scotland, there were innumerable instances of its occurrence. If the noble lord would look to the 130th page of the 2d volume of Hume's Commentary on the Laws of Scotland, he would find suf

Having occupied the House a considerable time with what he had already stated, he should now enter on the particulars of the case: and here he begged to say, that he by no means wished to separate himself in this transaction from his friend Mr. Drummond. For sending that gentleman to the Castle in the case in question, he (the lord advocate) was responsible, and in going thither Mr. Drummond had only discharged a duty very irksome in itself, and which he (the lord advocate) regretted to be compelled to press on any person of liberal acquirements and habits; for to hold communication with any person in Campbell's situation, could not but be very disagreeable to any gentleman whatever. The duty was, however, imperative. Certain persons having been apprehended at Glasgow, on the joint evidence of the sheriff depute and other magistrates, on their information he (the lord advocate) laid the indictment against M Kinley. In one and all of the declarations of the persons so apprehended, Campbell was pointed out as capable of giving information on that part of the subject which appeared to be most intimately connected with the preservation of the public tranquillity in Glasgow, and

the neighbouring districts, and even in / man in the House, who was counsel on all the northern parts of England. Under that trial, to contradict him if he could, those circumstances, acting on his official when he stated that two of that hon. genresponsibility, and with a view to main- tleman's learned friends were acquainted tain the public peace, he had directed a fortnight before with the nature of the Mr. Drummond to go to the Castle, in evidence to be given by the witness that order to learn if the individual in question, day. He did not say that the hon. and on promise of pardon, would communi- learned gentleman himself knew of this cate information on the subject. Mr. but two of his colleagues did. Nay, there Drummond was not authorized to promise was proof that what he had stated was Campbell any situation. In reporting to true, and could not be contradicted; for him (the lord advocate) the conversation Mr. Jeffrey, after Campbell had delivered which he had had with that individual, he his evidence, stated, that he was prepared, never stated that he had made such a pro- step by step, to corroborate the whole of mise, and he (the lord advocate) now dis- what the witness had said. Now he would tinctly denied, on Mr. Drummond's part, say here was at once evidence of a prethat any such promise had been made to vious communication with Campbell--and Campbell by that gentleman.

he would ask after that, if it was likely He should now state what took place that Campbell was afterwards in distress, between Mr. Drummond and the prisoner, in consequence of giving his evidence though in stating that, he was aware that without reward? He would oppose to he was merely producing the statement of the evidence of Campbell, a statement a man not upon oath, opposed to the oath made to him by Mr. Drummond. The of another person who had been examined statement made to him by Mr. Drummond by the court. But though he was so exa- was this ---that on going to the Castle to mined, that did not make his evidence visit this person, he had stated to him, altogether credible. In the situation in that he was in the greatest terror of his which this witness, Campbell, stood, his life if he gave information; that at that evidence, when not corroborated by other time the only object that Campbell seemed witnesses, could not be considered as con- to have in view was, the obtaining a proclusive. He would ask, if any man could mise from him of some measures to insure doubt, from what even Campbell himself his safety after giving his evidence. After had stated, that he had an interest in dis- this Mr. Drummond did not go to the qualifying himself from giving evidence ? Castle of his own accord, but was sent He had a palpable interest in not giving for by Campbell. The person who came his evidence. He would admit that he to him was the gaoler, who said that Camphad authorized Mr. Drummond to pro. bell was anxious to see Mr. Drummond. mise to Campbell, if he gave evidence, he He went accordingly, when Campbell should have a satisfactory security of his told him, that as a condition of his giving being sent abroad. If he gave evidence, evidence, he wished to have a passport, he in the first place secured his own life, and means to go abroad ; that in such a and in the second place he secured the case he was not only prepared to give eviconviction of the party : but then, in con- dence, but information; but that other. sequence of this conviction, he considered wise he could neither give evidence nor that he could not himself be secure in his information. Mr. Druminond then stated, own country. Now, by not giving evi- that without consulting him (the lord addence, from his disqualifying himself, his vocate) and having his authority, he could own life was not only not endangered, not take that course. Accordingly, Mr. but there was no necessity for his being Drummond communicated the proposition sent abroad. But he would say farther, of Campbell to him, and after consulta. that Campbell's evidence was contami- tion with the other law officers of the nated in other respects-it was liable to crown, and after considering the question suspicion on other grounds. It was stated of law in the best manner they were able, in the passage of the report of the trial, they came to this conclusion, that they which he had just read to the House, were not only entitled to make the witness that an objection was brought forward by the promise of a passport and the means the counsel for the prisoner, that he had of conveying him to a foreign country, had no access to Campbell to know what but that they were even bound to do som evidence that witness would give. Now that they were bound to afford him prohe would ask an hon. and learned gentle- tection in a way which he himself con(VOL. XXXVII.)

(U)

a

ceived was the only available way. He , abroad he would not be a witness. To directed Mr. Drummond, therefore, to this the solicitor.general made a reply, make a promise to him, that what he re- amounting in truth to this, that the priquested should be done. On the same soner might consider that such means as occasion Mr. Drummond communicated were necessary to his safety would be to him, that the prisoner was under the taken ;-that he should be sent to the greatest apprehension on account of his continent, and that he should have a passwife-that he was desirous of having her port and means of conveyance. That as brought to Edinburgh, to be near a sister, ihis proceeding took place the sheriff enand that he had applied to him for money tered, and he then stated he was aware for that purpose. Mr.Drummond said he that the witness had endeavoured to give had told him that he could do nothing on another colour to the transaction, but be this subject without his (the lord advo- should show that what he stated could not cate's) authority. A letter from Camp- be true, from what he afterwards said bell was afterwards brought to him. He the sheriff then said, that a statement of stated positively, that as to giving any such a kind was not usual in a declaration, money to induce him to give evidence, but he would verbally assure the witness that he could not do, and it ought not to that he should be protected. On which be done ; but he trusted that gentlemen the solicitor-general said, “ You know then on the other side of the House would not what to expect.” In his account of this think that in the situation in which the part of the proceeding, the witness stated witness stood he had done any thing un- that sir Wm. Rae, the sheriff, said, “I becoming and improper in endeavouring will not sign this;" and added, as an officer to alleviate his case by bringing the of the Crown, it was his duty to see juswoman to Edinburgh. On being informed tice done; and he assured them, if he of this request of Campbell respecting were to sign it, he would not answer for his wife, he gave directions that a place it for a good deal; that, in that case, should be taken for her in a public con. when the witness should be asked if no veyance by the magistrates of Glasgow ; reward, or promise of reward, was made although he really did not know whether to him ? if he answered in the negative, or not she ever came to Edinburgh. he would be perjuring himself. But what Whether this conduct on his part and the the witness afterwards stated carried with part of the other law officers of the Crown it the contradiction of this account. Mr. on this occasion was legal or illegal, it Drummond, he said, then tried to modify was at least that of persons acting bona the affair, by suggesting the British colofide who considered they were doing nies instead of the continent. But what their duty, and that they were not acting was the difference, he would ask, between illegally; Had they considered they were conveying him to Prussia and conveying acting illegally, instead of sending for the him to the British colonies, if the whole sheriff, the sheriff substitute, the procu. was an illegal transaction ?-Would not rator fiscal, and the sheriff clerk, they the sheriff, would not the other gen. would have made a promise to Campbell tlemen there have protested against the in secret. Should they have thought of one as well as the other? Was it having these magistrates present, when possible to imagine also that the paper the promise would have been equally would have been destroyed in order to available without the magistrate ? All conceal what had passed ?. They were this stood on record on the evidence of bound to preserve all the evidence taken Campbell himself. He stated, that the by them, whether for or against the pri. sheriff substitute, equal in authority to the soner. It was not the sheriff, but the sheriff, began to take the declaration, and clerk, when the evidence was taken, who the witness stated something as to the was bound to preserve it in memoriam rei. terms he had himself mentioned, as lie It was impossible, therefore, to think of believed, to Mr. Drummond, the sheriff- sheltering the Crown counsel

, even if substitute, and the procurator fiscal; and such a thing were wished. They were Mr. Drummond asked Campbell what he desired to believe, that the sheriff had as. had got to say? The deponent answered, sented to the modification suggested by suppose he communicated that affair, and Mr. Home Drummond; but he would was to tell the whole truth, he could not say, that if the first proposition was ilconsider either himself or his wife safe, legal, the second was not less illegal; and and without a passport and means to go they would have been acting illegally in