293] against State Prisoners in Scotland. feb. 10, 1818. [294 taking the second declaration, as well as two of these questions the judges were the first.

divided, and a bill was brought in to obThe noble lord had stated correctly the viate the difficulty. The third question, initiative question in the examination of however, was, whether a person could witnesses in Scotland. The witness was properly be examined as a witness on such asked, if he bore any malice against the à trial, who, by the evidence he might prisoner-if he answered yes, the court give, might either discharge himself from then endeavoured to ascertain what the a debt, or render himself liable to it. nature of the malice was-whether it was Lord chief justice Mansfield delivered the such as would induce the witness to swear unanimous opinion of the judges, that the falsely against the prisoner. The witness objection of his being an interested witwas then asked, if he had been told what ness ought to be repelled—as whatever he should say if he answered yes ;

he was offered on condition of his making a was asked what he had been told to say? full and fair disclosure, could legally When he was asked, if any person had make no difference with respect to his told him what to say, and he answered evidence, he being bound by his oath, by yes-that was in itself no objection, but law, morality, and honour, to declare, the if he told what he had been instructed to truth, the whole truth, and nothing but say, and it appeared to the court that the truth. This was the law of Scotland, this would lead him to give false evidence, and the constitutional law of the country, then the court would reject the witness. It was a fact that after Mr. Trotter had In the same when the third question was been examined as a witness before the put to him, whether he had received any high court of parliament, he was sent for reward or promise of reward, the court by the committee of managers of that prowould examine into the nature of the re- secution, and again examined by them ward, whether it was such as had a ten- | before he was next day put into the witdency to lead him to give false evidence. ness's box.. Understanding that such was A court could not consider every reward the law of Scotland, he had certainly enas completely subversive of every testi- tertained it as his opinion that he could mony - because in that case no socius make a promise of protection to the wit. criminis could ever be a witness. Such ness, and on that opinion he had acted a person must state that he came forward and promised the witness protection, and under a gift-the absolute promise of a in the way alone which he himself confree pardon. He would on this subject sidered available. Why was it that a soread a passage from a book, which, with cius criminis, was promised a pardon and whatever authority, it might be received, a witness protection ? It was that they referred to the last case which had been might come forward to give evidence undecided. It was from the work of Mr. biassed, by fear either of the prosecutor Burnet, p. 416. Here the learned lord or the prisoner respecting their evidence. read a passage, in which a case decided | In some situations in a neighbouring counon the 8th of December, 1799, was cited. try, Ireland, a guard of soldiers bad The court had decided that a promise of sometimes been ordered to afford proreward to a witness if he spoke out, did tection to witnesses. Now if from a si. not disqualify him—but if he was pro- tuation in which there was a great and 'mised a reward on condition of his giving extended conspiracy, comprehending two such and such an evidence, the objection or three hundred men, bound on oath to to his evidence ought to be sustained, as avenge any disclosure of their plans, it this amounted to a bribe to give a parti- could not be safe for one of the conspiracular evidence. The noble lord had there- tors to give evidence, was it not the duty fore been misinformed as to the law of of the prosecutor to endeavour, as far as Scotland on the case of a promise of re. he could to screen the witness from dan. ward to a witness if he spoke out. But ger? He was therefore, he considered, was this, he would ask, the law of Scot- justified in promising this witness a passland alone? He would state, with deference port, and if he had not the means, to to the House, that it was also the great have him conveyed abroad at the public constitutional law of this country.

This expense. House would recollect that, on the trial of There was one part of the deposition lord Melville, three questions had been of Campbell which the noble lord had put to the twelve judges, as to the admis. read in rather a lower tone of voice than sibility of Mr. Trotter's evidence. . On the rest,-the concluding part of what he

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had stated respecting his conversation dulged as far as possible. All the prisowith Mr. Drummond. He had there ners and witnesses received that species stated that no attempt was made to in- of indulgence towards which their turn struct him as to what he was to say. The of mind inclined them. He rememsame was stated by sir William Rae. And bered, however, that Campbell made at from the beginning to the end of the de- one time a demand for money-he had position, he never alleged that one ques- written three letters in all. One of his tion was put to him by Mr. Home Drum• letters contained a pressing application, mond, or any other person, as to the prac- on the ground of his wife's being brought tices in which he was engaged. If they to bed, for twenty-three shillings; but he had had any sinister purposes in view, (the lord advocate) had caused it to be would they not have endeavoured to effect distinctly intimated to him in reply, that it by putting such leading questions to he should not have any money. The nohim? But they had acted with that regard ble lord had stated, with respect to the to the purity of testimony, that they had examination of Campbell, that all was in. not put one question to him from begin- tended to remain a secret. But he would ning to end with respect to his own con- tell the noble lord, that the moment duct. Stress had been laid on Campbell's Campbell was examined as a witness, all statement, that he was to give information possibility of secrecy was at an end. The to please the lord advocate. But he stated public prosecutor could be called on at that this was not to come forward as a any time for the declaration—the object witness, but in a previous examination. of the intervention of the sheriff was to He was told, that if he would give such prevent secrecy - if the present prosecutor information as pleased the lord advocate, went out of office that the evidence might he would neither be tried himself, nor remain behind — and that it might be should he be brought forward as a wit- known, if blame attached to any person, ness. This was merely for the purpose of what it was, that the prisoner might bring learning the fact. For what earthly pur- his action in case he considered himself pose should he ask Campbell to tell him aggrieved. The noble lord in stating that what was not true, when he could vei. it was intended to bring forward Campbell ther be brought forward as a prisoner, nor as a witness to hang M.Kinley was inacas a witness ? If he could not be produced curate, because before Campbell was on the trial, it would be in vain for the brought forward, the prisoner was out of lord advocate to allege that he had re- all jeopardy as to his life, as he, the lord ceived such and such information from a advocate, had contented himself with conthird party who was not forthcoming cluding for an arbitrary punishment. There was not any attempt here to lead He trusted that the explanation he had the witness. If he was not promised a given would convince the House that the reward to give evidence in a particular noble lord was in an error with respect way there could be no exception taken to the law of Scotland and the constituto him, nor could any charge of illegal tional law of the country. But he wished conduct be brought against the person to observe, in conclusion, that by this par. by whom the promise was made.

liamentary discussion the noble lord was With regard to certain indulgences interfering with the administration of jusshown to the witness, Campbell, as the tice of the country. Not one of the prinoble lord had passed them slightly over, soners was arrested or tried on the sushe was not certain whether he considered pension of the Habeas Corpus act. Every them in the light of rewards or not. They one of them was taken up on the common were not contined to the witness Camp- law of the country-and an action lay bell

. Every indulgence was given to the against the prosecutor for the Crown for other witnesses, as well as to Campbell. having acted wrongously, and thus he was At the end of the trial too the prisoner interfering with the reniedy of these priM.Kinley, after thanking the court and soners. They were entitled not only to the jury, concluded with thanking the prosecute him criminally, but to bring a lord advocate, “I wish to declare,” he civil action against him with the view of said, “ that all liberty and indulgence was obtaining damages.

He had now anshown to me in my confinement, which a swered all the charges which the noble prisoner can expect under such circum- lord had brought against him, and he stances.” Whether the witnesses chose thanked the House for the patience with clothes or books, their requests were in which they had heard him disprove the

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allegations. He had no doubt whatever that they would act on this occasion as the House had acted in the year 1794, when Mr. Adam moved for the record of the trial in the case of Palmer and Muir.* It was then urged by the learned lord who held the office he now filled, that such a proceeding was liable to numerous objections, and after considerable discussion, the House were of opinion that the record ought not to be produced. He trusted that a similar decision would be come to by the House on the present occasion.

by the learned lord; when the time comes for going into it, and a fit opportunity shall offer, I shall be ready to meet the learned lord. But I now wish to stick to the question properly before the House question which is alone sufficient to arrest its whole attention-namely, the conduct of the law officers of the Crown in Scotland in regard to this witness. I will concede, for the sake of argument, all that the learned lord has stated to be true, respecting the extent of the conspiracy and the magnitude of the danger; I will assume that the person of whom I am speaking was actively engaged in that conspiracy: that he was one of the most guilty of mankind. All this will not weigh one feather in the balance in favour of the learned lord, or in justification of practices such as are imputed to the law officers of the Crown in Scotland.

Mr. J. P. Grant spoke as follows: Sir; alluded to as I have been by the learned lord, and having been of counsel for the prisoner in the trial in which the conduct of the learned lord is called in question, I have thought it necessary to offer myself thus early in the debate to your attention. I beg to assure the House, that nothing would have given me more The learned lord has said that my noble sincere pleasure than that the learned lord friend, in bringing forward this motion, is had succeeded in removing the imputa- interfering with the ordinary course of tion cast upon him by the evidence of the law; and he has stated, that the perCampbell. The learned lord may believe sons arrested were taken up, not on the me when I state, that I have never ap- new law suspending the Habeas Corpus proached any question with more personal act, or the similar act in Scotland, but pain than I approach the present; but this under the common law of Scotland; and is not a question in which personal consi- that the persons who think themselves derations can be indulged. If there be any aggrieved may commence criminal or civil question on which such considerations prosecutions. But is it any thing to this must be sacrificed, it is this which arises House, intrusted as we are with the care out of the evidence of this man. This is of the lives and liberties of our fellow-subas grave a charge, and on a matter as vital jects-with the superintendence of the to the interests of the country, as ever courts of justice-who are bound to watch was preferred to parliament. Even those their conduct with a jealous eye, and still who do not know me will not suppose that more especially the conduct of the law I can rise in my place in parliament, to officers of the Crown-is it to be told us, deliver the opinions, which I shall be sitting here in parliament, that private incompelled to deliver before I sit down, of dividuals may commence actions such as the conduct of gentlemen with whom I have been described? Sir, private indiam in the daily habit of professional inter-viduals may bring such actions as the law course, gentlemen against whose private character I know of no imputation; whose manners are conciliatory; some of whom are nearly allied to persons whose friendship I am proud to possess:- it cannot be supposed that I can deliver such opinions of the conduct of such persons, without feeling the greatest degree of uneasiness.

allows, or they may abstain from so doing; but we have a great and important duty to perform to the public, from which, I trust, we shall not abstain.

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Let us see what this charge is, and how stands on the evidence of Campbell. To this I beg the serious attention of the House. The charge is two-fold. First, That the law officers of the Crown have tampered with a witness. Secondly, That, knowing that by the forms of the court a question must be asked him, which, in order to be a witness, he must answer on oath in the negative; they have, notwithstanding, brought this witness forward, knowing that, if he answered in the negative, he perjured himself [Hear, hear!].

I have now stated, as briefly and as and towards the other unfortunate gentleclearly as I can, the aceusations against men concerned in this transaction, no the learned lord: I do not mean to say sentiments but those of pity and compasthat they are true, but I will say that they sion. I am actuated by considerations of are made on such authority, that they public duty alone. And why should it must be received as true in this House, be otherwise? Is there any thing in the till they are contradicted: and they stand private life of the learned lord which can to this moment uncontradicted even in induce me to bear rancour towards him? statement, except by the statement of the Is there any thing in his situation, notlearned lord, in this House. I will say withstanding he holds this important office, for the learned lord and his coadjutors, calculated to provoke political hostility ? that it is not fair to them to permit these Where would be the victory over him? accusations to stand uncontradicted. What party object could be accomplished will say it is not fair to this House, to ask by his defeat? This, Sir, is no party of it to permit this evidence to stand un- question. I am proud to say, that there contradicted on record : it is not fair to exist persons in this country, who act tous, to ask that the record may not be laid gether in this House, and elsewhere, to on the table, that we may examine into whom nothing is indifferent which conthe truth of this evidence. This evidence cerns the public welfare, or the safety of is contained in a deposition on oath of a the constitution. In this sense, this may credible witness, recorded in the books of be considered as taken up by a party. the high court of justiciary. The depo- But in no other sense can it be supposed sition was taken down in writing, at the to involve any party question. desire of the learned lord himself, con- I request the House now to go along trary to the ordinary practice, and now with me through the whole of this man's forms part of the records of the court. deposition, and I will ask them if they

It is our duty, Sir, to have this matter think the charge it contains ought to reclearly ascertained. The witness himself main uncontradicted? The beginning of has taken pains, in the whole course of the statement is of use only to show the his deposition, to furnish the means by general spirit with which this business was which, if untrue, his evidence may be conducted; but it is useful to this purcontradicted : he mentions the names of pose; and the House, by the displeasure many persons as privy to the transactions which it expresses, will teach all inferior related by him, and states a number of magistrates that such practices cannot be minute facts: I will ask the House, I will suffered to pass with impunity. The deask my learned friend opposite (the attor- position commences by stating that the ney-general), if this evidence be not true, witness was apprehended, and so on. wbether he has ever, in the course of his

" That he was taken to be examined be. experience, seen a single case where per-fore the sheriff depute of Lanarkshire ; Jury might be so easily detected ? Now, and being interrogated if he knew what he months after months have elapsed since this was brought there for? he answered, that trial, on which evidence was given, imputing he did not know. On which the sheriff to these learned persons things which, till insisted that he did ; and added, “ it now, I did not believe any man would have would be wisdom of him to make his breast allowed to remain uncontradicted. Yet clean." He is then left with the procuno prosecution for perjury has been rator fiscal, Mr. Salmond, alone. At brought. The learned lord has told us, least the witness says he is not sure whethat he acts as the grand jury in Scotland; ther any other person was present or not. he had nothing therefore to do but indict Mr. Salmond came up to the witness, this man for perjury; and, I give him my saying " John, you perhaps do not know word of honour, that he, the learned lord that I know so much about this affair;"> himself, could not be more pleased than I and adding, “ I know more about it than should have been, if the learned lord had you think I do." He was often closeted succeeded in rescuing from this reproach with Mr. Salmond ; on one of which ochis own character, and the character of casions, after using many entreaties to the profession to which I have the honour the witness, and these having failed, after to belong. Let it not be supposed that in railing at the prisoners as villains who had any thing I have said of his conduct, I am betrayed him (the witness), Mr. Sala actuated by any personal motives towards mond said, “ John, I assure you that I the learned lord." I can feel towards him, have six men who will swear that you

took that oath, and you will be hanged This offer was made after the witness as sure as you are alive."

After this, was told he was in the list of witnesses, Salmond said, “ John, you will ruin your that he must appear and give evidence, self if you persist in this way; but if you that he was in a situation where he could take the other way, you will do yourself not help himself, where he could not much good.” [Hear!] “ Depones, that avoid speaking out, but where he might after much conversation, the witness said avoid saying what would be agreeable to he was not afraid of the one way, and he those who wished to produce him. The did not see much good he could do him- record goes on to state, that the witness self by the other. Mr. Salmond said, answered, he did not choose to be an the lord advocate was in Glasgow." This exciseman; and remarked at the same was a mistake; Mr. Home Drummond, time, that it was perhaps the only office the advocate depute, was meant, and is under government which he was fit for ; by mistake here called the lord advocate, but as it was an office attended with risk Mr. Home Drummond was at Glasgow and ill-will, he did not choose to accept at the time. “ Mr. Salmond said the of it, as he had suffered already consider. lord advocate was in Glasgow; and he ably in that way by being a peace officer. would come under any obligation he chose, He was then asked what he would have, if he would be a witness."

and afterwards the offer was made him to The learned lord has said, that all that be sent abroad. Was this necessary to a took place was for the purpose of obtain- witness who was already on the list

, and ing information. But there was here, at might be compelled to appear? Was all the very first, no word of

giving informa- this requisite for his protection if he spoke tion. The reward was offered if he would the truth ? Was sending him abroad probe a witness. The witness then states, tecting him? Was the offer of making him that he was taken again before the she- an exciseman, an offer only of protection? riff, and there, to confirm the circum- But the witness adds, that nobody was stance that Mr. Salmond spoke from au- present at this conversation, and that it thority, Mr. Drummond, the advocate was conducted only by Campbell and Mr. depute, came into the room. But the Drummond, and therefore it must rest on witness admits the subject of the obliga- the testimony of Campbell. But its protion was not mentioned. He was then bability or improbability will appear from removed to the Castle of Edinburgh. subsequent parts of the deposition. The There the operations of the advocate de- witness did not take the office of an expute begin. “When in the Castle of ciseman, as it was exposed to danger: Edinburgh, Mr. Drummond came to him, then the advocate depute was ready to and mentioned that M'Kinley had been come to any other terms he chose: he says, served with an indictment, and that his if you will not be an exciseman, what (the witness's) name was in the list of then do you want? what will you have? witnesses, and that now was the time for – Depones, that at the first interview, him to determine whether he would be a after what is above mentioned, Mr. Drum. witness or not."

mond asked him what he wanted to have." “ The deponent stated, that he did not - Was there any question about giving wish to be a witness, and that he, Mr. ( information here? Was there any thing Drummond, knew that if he was, he need here like the fair and candid examination not go back to Glasgow, as he could not by a magistrate, of a person called before live there. Depones, that Mr. Drum- him to disclose circumstances material to mond then said, that he was quite sen the ends of justice? The advocate depute sible of that, but that he might go and told him that he was already in the list of reside somewhere else, and that he might witnesses, that he must be put into the change his name; but the witness said witness-box; and yet, he adds, “ Now is he would not change his name, and the time for you to determine whether that it would be much the same if he you will be a witness or not !'-[Loud lived in any other manufacturing place as cries of Hear !] Is any body so dull as in Glasgow. Depones, that Mr. Drum- not to understand the purpose of this mond then said, he had been thinking of conversation? He was already a witness, a plan of writing to lord Sidmouth, to why then was he asked if he would be a get him into the excise, and that if he, witness, unless the question alluded to the witness, chose, he would write to lord the nature of the evidence which it was Sidmouth, and show him his answer.” wished that he should give?