§ Lord Archibald Hamilton
said, that he rose for the purpose of redeeming the pledge, which, on the first night of the session, he had given expressive of his determination to submit to the consideration of that House, a motion respecting certain transactions connected with the administration of justice in Scotland, and the conduct of the law officers of the crown in a recent state prosecution, as affecting the justiciary court of that country, and as directly concerning the liberty and life of every individual in it. He felt as sensibly as 269 any man could feel, the importance of the subject to which he had to request the attention of the House, and the duty it imposed on him of treating it with the utmost seriousness. In the discharge of a public duty, he trusted that it would be his uniform practice, but if ever there was a question that more strongly exacted that serious consideration, it was one that branched into an inquiry into transactions connected with the administration of justice, and the conduct of the law officers of the crown in the prosecution of political offences. The present case had every ingredient of gravity and importance. The subject related to the highest concern in this country, the purity of justice; the parties were the highest officers of the law as well as officers also of the crown; the scene of the transaction which he was about to notice, was the highest court of criminal law in Scotland.
He was aware that this statement of the tendency and end of his motion was likely to produce a double prejudice. The first was, that being a subject somewhat in the nature of a law question, it might be thought by many of those whom he had the honour to address, that it should have been left to professional men to submit it to the consideration of parliament. To such an objection he would answer that if it were to appear to be the general opinion that only professional men could take up important questions, involving grave matters of constitutional interest, he should much regret such an impression, as hostile to the best interests of the state. But he would contend, that such an objection did not apply to the motion which he should have to submit to the House. It stood in need of no professional or technical qualifications—it required only the suggestions of plain sense and sound reasoning: it involved no question of law, but the law of common justice; and nothing technical, but what might be artfully introduced into it, in order to perplex and obscure its real nature and its obvious merits; and, therefore, however competent on other grounds, he might feel himself for the due exercise of the duty he had undertaken, he would acknowledge no deficiency as arising from the mere cir cumstance of his not being a professional man—The second and the greater prejudice with which he had to contend, was, that to accede to his proposition, might be construed into an interference‡270 with the administration of the courts of justice—a point that long experience had convinced him was one, on which that House entertained universally the greatest jealousy, if he might not say repugnance.—To meet such an objection, and to guard against any such inference, he begged to state, that he did not seek for any interference of that House with the administration of the courts of law in Scotland. His business that night, was not with the court, but with the law officers of the crown. All he asked was, to direct its attention to what had passed in these courts, and to take cognizance of certain outrages upon the forms and the substance of justice which had been therein committed, and the evidence of which, appeared on their own records. From these records the House would be enabled accurately to ascertain what was the conduct of the law officers of the crown—conduct which he had no hesitation in asserting justified the charge of a subornation of perjury, or at least must be considered as an attempt to procure an illegal conviction. Such a case, in his judgment, most urgently called for parliamentary inquiry; and though it might branch out into a variety of collateral details, the feature of the transaction to which his present motion specifically adverted, had undoubtedly the least connexion with professional or legal topics.
The case he was about to submit to the House arose out of the trial of M'Kinley, in the high court of justiciary at Edinburgh. He had no intention of going into the whole series of state trials in Scotland in the course of the last year. Neither would he notice the succession of indictments which had last session come under the consideration of the House. He selected this case because it was the strongest that had occurred, and because the part which he had to animadvert upon involved no legal technicalities. His motion was merely for the production of the record of those proceedings to which he had alluded. He mentioned this so early, because he really had little or nothing to submit to the House but what that judicial document contained and went fully to substantiate; indeed, the whole nature and character of the proceedings could not be better developed than as they there appeared. It was, however, necessary to take a short—a very short retrospect of some circum- 271 stances that had occurred in that House, during the last session, with reference to the trials in question. It would be recollected that the lord advocate of Scotland had, in his place, on that occasion, asserted in the most solemn manner, that the population of Glasgow was so contaminated with sedition and disaffection to the state, as to require the exercise of the most vigorous repressive measures, and that several hundred persons in that manufacturing city, were bound by an oath, which oath, the learned lord had in a manner uncalled for, submitted to the consideration of the House. That some degree of discontent, or degree of disaffection, might exist in a period of great distress, amongst a large manufacturing population, he was not disposed to deny or to dispute. But he would ask, were it now possible, not to feel assured from the circumstances that had since taken place, contrasted with the statement of the learned lord, to which he alluded, that all that had been said about that disaffection then existing, was highly extravagant, if not grossly slanderous? But, whether it existed or not, its extent or character was not now the question: allowing that it was as prevalent as the learned lord assumed, it was at least the duty of the law officers of the crown to conduct themselves so as to afford those whom they brought before the tribunals of the country, were they guilty or innocent, a fair and impartial trial. Such fair and impartial trial, the panel M'Kinley, whose case he was about to detail, had not received. He repeated, that he disclaimed all concern with the guilt or innocence of the persons accused. Even if guilty, the obligation was imperative, that the fullest impartiality and fairness should be afforded them on their trials. And here he must observe, that the uncalled for and exaggerated statement of the learned lord last session, and particularly the improper and uncalled-for production to this House of the odious oath which had been disclosed by the secret committee before the report of that secret committee had been made, tended not only to inflame the prejudices of those who heard it, but must have had an influence prejudicial to the accused amongst those who were likely to serve on the juries, that were to pronounce on their guilt or innocence. He must be* See Vol. 35, p. 729272 allowed also to state, that the system which had been for months back introduced into all parts of the country, of employing spies in the manufacturing districts, for the purpose of watching the progress of popular discontent, has not alone produced incalculable mischiefs, but had led to a total misconception of the real feelings of the population of the country. For his part, he had documents in his possession which enabled him totally to deny these sweeping charges of disaffection—there was not one solid ground, he was proud to say, on which such suspicions could be supported.
Before he entered into the particulars of the trial, to which the record for the production of which he should move, referred, he begged to be understood as entertaining towards the learned lord no-feelings of hostility. When he spoke of his conduct, he must be understood to allude only to his official character. He was anxious to say so, because he felt the case to be so extremely strong, that it could not be applied to a private character without conferring infamy. In all that he had yet said, or intended to say, he felt himself borne out by the judicial proceedings; and if in describing the transactions to which they referred, he was compelled to use strong language, it was, because strong language could alone speak of that conduct as it deserved. He must, however, explain to those unaccustomed with the administration of law in Scotland, and who might imagine, that when he used the term "subornation of perjury," he meant to charge the law officers with wishing or endeavouring to bring forward perjured evidence, no such object was in his contemplation. Such a charge would, indeed, infer a guilt of much deeper dye, than even that guilt bad as it was, which he was about to make, and which the record would substantiate. The course of proceeding at the commencement of a trial in Scotland varied considerably from the practice in this country. Writs of error from the high court of justiciary were not competent in Scotland—motions to the court to alter or qualify the verdict were, he believed, not known—and cross-examinations at the trial were far more limited than here. As a substitute, however, for these forms of law, but substantial fences of justice, they had in Scotland a solemnity of the gravest importance—he meant what was termed the purgation oaths—and these 273 oaths are administered by the court, to every witness, in a criminal process, before he can open his lips in evidence. In the case before us, the trial of M'Kinley, the first witness called was John Campbell, and before he was allowed to enter into the detail of his evidence, three distinct questions were put to him by the court. First, "do you bear any malice or ill will to the panel?" Should the witness give an answer to this interrogatory in any way ambiguous, it was for the court more closely to examine him. Secondly, "has any body taught or instructed you what to say as a witness?"—The House would understand that this question was direct. It had no reference to the truth or falsehood, of what a witness might be instructed to say, but went to ascertain whether instruction of any kind was given; and if given, the witness was disqualified. The third question was "have you received any reward, or promise of any good deed" It was not that the reward should be conditional, on the nature of the evidence, be it false or be it true—if reward was promised at all, that alone set aside the witness.
It now remained for him to advert to the evidence which had been offered to the court, and he felt confident that every man who heard it must admit that it fully made out his case. He had first to premise, that on the trial of M'Kinley an objection was tendered by the counsel for the panel, to the competency of the witness, John Campbell, on the ground that he had been refused access to that evidence. The counsel had applied to the goaler for access to Campbell, but was refused under the orders of the lord advocate and subordinate officers of the crown. The court overruled the objection, on the plea that application for access should have been made to the court, and not to the lord advocate. But what said the learned lord himself on that point? He said, that he had refused access to the witness, "to prevent tampering."[Hear, hear.] And yet any man who attended to these proceedings, must acknowledge, that the whole evidence of the witness Campbell, exhibited one continued system of gross and palpable tampering on the part of those very law officers of the crown, who appeared so jealous and fearful of all tampering but their own. How the learned lord could have prevailed upon himself to give that answer, he was at a loss to conjecture, for the learned 274 lord must have known that the whole of the law officers had continued access to Campbell; and what took place at these interviews, he, for his part, could call by no other name than palpable tampering. When, however, the oath was put to Campbell at the trial, and the third interrogatory was asked respecting the promise of reward—to the surprise of the whole court, the answer of the witness was, that he had received such a promise. Upon that answer, therefore, he grounded the present motion for the production of the record. From that instrument the House would be able to judge of the tampering in the gaol, and of those other incidents which he felt were abundantly sufficient to establish the charge he made against the crown officers of endeavouring to produce against the accused, evidence, which they must have known from their own previous tampering, would have been if not disqualified by its own confession, perjured evidence, in order illegally to convict the panel. Campbell made an open declaration in court of the tampering that had been practised with respect to him. He stated that he had been apprehended along with M'Kinley on the 22nd of Feb. last, and lodged in Glasgow gaol, without cause assigned, and without a warrant. That on the Tuesday or Wednesday following he was examined before the sheriff depute of Lanarkshire, and was interrogated if he knew what he was brought there for. That he answered that he did not know, and that the sheriff stated that he did, and it would be wisdom of him to make his breast clean. That after some similar conversation, the sheriff went out leaving him (Campbell) with Mr. Salmond (the procurator fiscal). That Mr. Salmond came up to him saying "John, you perhaps do not know that I know so much about this affair; I know-more about it than you think I do; I suppose you do not know that I have the oath you took at Leggatt's on the 1st of January." That Mr. Salmond then showed him the scroll of an oath, saying, "you see John I have got it. You and other persons (whom he named) took that oath in Leggatt's on the 1st of January." That he (Campbell) then told Mr. Salmond that he had not taken the oath. That he was often before the sheriff, and closeted with Mr. Salmond, on one of which occasions, after using many entreaties to him in vain, after railing at the prisoners as villains who had betrayed him (Campbell) 275 and that stating that it was out of respect I to him that he wished him to be a witness. Mr. Salmond said, "John, I assure you that I have six men who will swear that you took that oath, and you will be hanged as sure as you are alive."—Gould any threat be more likely to operate on the fears and hopes of a man who was afterwards to become a witness?—Campbell proceeded to state, "that on telling Mr. Salmond that if he got six men to swear that oath they would perjure themselves, Mr. Salmond answered, 'John, 'John, it is impossible to get six men to 'perjure themselves. You will ruin your-' self if you persist in this way, but if you 'take the other way you will do yourself 'much good.'" Was not this gross and palpable tampering? Could evidence thus acquired be described, according to the administration of the law in Scotland, in any other terms than as a subornation of perjury? Campbell then went on to inform the court, "that Mr. Salmond told him that the lord advocate was in Glasgow, and would come under any obligation he chose if he would be a witness." He (lord A. Hamilton) wished to explain here, that persons not well acquainted with legal forms and offices in Scotland very frequently confounded the title of lord advocate with that of advocate depute, and that it was the presence of an advocate depute, not that of the learned lord, which formed the subject of the observation made to Campbell. This appeared from the continuation of Campbell's narrative, viz. "that shortly after, he was taken before the sheriff, when Mr. Drum-roond, advocate depute, came into the room, after which he was examined, but the subject of the obligation was not then mentioned; and that in a few days afterwards he was removed to Edinburgh Castle. That when in the Castle of Edinburgh Mr. Drummond came to him, and mentioned that M'Kinley had been served with an indictment, and that his (Campbell's) name was in the list of witnesses; and that now was the time for him to determine whether he would be a witness or not. That he stated that he did not wish to be a witness, and that he (Mr. Drummond) knew that if he was, he need not go back to Glasgow, as he could not live there. That Mr. Drummond's reply was that he was quite sensible of that, but that he might go and reside somewhere else, and that he might change his name; but that he (Campbell) said he would not 276 change his name, and that it would be much the same if he lived in any manufacturing place as in Glasgow. That Mr. Drummond then said he had been thinking of a plan of writing to lord Sidmouth to get him into the excise." It could hardly be disputed he (lord A. Hamilton) imagined, that this was holding forth a hope and promise of reward to one who had been previously told, that there were six witnesses prepared to prove him guilty of the offence on suspicion of which he had been apprehended. With such facts on the record, was it possible that any hon. member could get up and state that no promise of reward was held out to induce the witness to criminate the accused? Campbell (who objected to the situation of an exciseman as exposing him to risk and ill-will, which he did not choose to encounter, also stated, "that at an interview after what he had mentioned, Mr. Drummond asked him what he wanted to have; that he (Campbell) remained silent and made no answer. That Mr. Drummond then said, that if he would give such information as would please the lord advocate"(he begged the House would mark the words, 'please the lord advocate'),"he should neither be tried himself, nor made a witness."
Undoubtedly, he was not prepared to say that the lord advocate was privy to all these attempts, and the manner in which they were conducted; but the presumption was, until it should be fully disclaimed and contradicted, that the immediate authors of them were acting in concert with him, and for the present, therefore, such he should consider to be the fact. It was for the learned lord to prove that he was no party to these gross and unjustifiable proceedings. If in the course of the discussion the learned lord should in his place feel enabled to say—"True it is that from the record it appears that these tamperings were practised by Mr. Drummond, but they were practised without my knowledge or sanction"—if such should be the declaration of the learned lord, then he (lord A. Hamilton) was ready to separate the conduct of the one from the other. On the learned lord himself it rested to show that he did not act in concert with Mr. Drummond. And until he made that declaration the House had a right to presume that the acts of the advocate depute were the acts of the lord advocate. Campbell proceeded to state, "that to 277 this observation of Mr. Drummond's he replied, that he did not know what information they wanted, or that he could give more than they already had; and that if his information did not please the lord advocate, he would lie open to every attack that could be made against him. That Mr. Drummond then said, 'I do 'not know what to do with you, Campbell; 'I wish to do every thing I can to favour 'you. I shall give you a day or two to 'think of it:' that Mr. Drummond added, 'do you wish I should come back again?' That after some hesitation, he (Campbell) said he might do as he pleased, and Mr. Drummond went away: that in a few days afterwards Mr. Drummond came back again, and said, 'Campbell, this is 'the last time; you must be determined 'now.' That he (Campbell) asked if he had written to lord Sidmouth, and Mr. Drummond answered he had not, as he had rejected it: that Mr. Drummond asked if he had made up his mind yet. That he answered that he had, upon conditions; and upon being asked what these were, he said that he wished to get a passport to go to the continent: that Mr. Drummond told him, he supposed there was nobody could stop him; and he answered, that being a mechanic, he believed the laws of the country did not allow him to quit it. That Mr. Drummond replied with a smile, 'Is that all; there is no 'question you will get that, and means to 'carry you there.' That they were standing while this conversation took place, and that he said, that, upon these conditions he would be a witness, provided his wife was also taken into consideration: that upon this Mr. Drummond said, 'Campbell, let us sit down that we' may understand each other properly, as 'I would not wish that we misunderstood 'one another at the latter end:' That he mentioned to Mr. Drummond, that his wife was in a very delicate state of health, and had nothing but what she earned to support her; and that if it was known that he was to be a witness, she would suffer from ill-will by the public: that Mr. Drummond then replied, 'poor 'woman, she must be ill off,' and desired him to write a letter, and mark a one pound note in it, and give it to Mr. Sib-bald, who would bring it to him, and he would put a one pound note in it for his wife. That Mr. Drummond also desired him to state to his wife that he was to be a witness, and to desire her to leave 278 Glasgow, and go to his (Campbell's) father at Symington in Ayrshire. That he said that would be the first thing to discover that he was to be a witness, as his wife could not read writing. That after some conversation about writing to the town clerk of Glasgow, or some friend of his, it was agreed that he should write a letter to his wife, stating that a friend of his had sent her a one pound note to pay her expenses into Edinburgh by the coach, and that she would receive money there to carry her back again. That this letter was given to Mr. Sibbald (the gaoler) in consequence of the conversation with Mr. Drummond, but that some days afterwards it was brought back by Mr. Drummond, who told him that the lord advocate disapproved of sending such a letter, but thought it more proper that Mr. Salmond should be written to, to send for his (Campbell's) wife, and tell her that he wanted her to come to Edinburgh. That after this Mr. Drummond read to him a letter he had received from Mr. Salmond, stating, that a ticket had been bought, but a postscript of the letter mentioned that his wife, from her state of health, had declined to come. That Mr. Drummond returned his letter, which he burnt. He (lord A. Hamilton) would put it to the House upon this statement, if substantially true, whether the inference would not have been, had Campbell given evidence against the panel, that his evidence was perjured? At length the time arrived for the sheriff of Edinburgh, sir William Rae, to take Campbell's examination. Of this Campbell was apprized by Mr. Drummond. He stated to the court, "that he was informed by Mr. Drummond that the sheriff was coming to examine him; and it was agreed upon that in answer to the first question he (Campbell) was to state, and have it taken down, that he was to receive a pass- port to the continent, and the means to carry him thither, it being understood that Prussia was to be his destination. That the sheriff', and, as he believed, the sheriff substitute, the solicitor-general, the procurator fiscal of Edinburgh, as he understood, and a clerk, came into the room; and Mr. Drummond having asked him (Campbell) what he had got to say in the business, he answered, that, supposing he was concerned in that affair, and was to tell the whole truth, he did not consider either himself or his wife safe; and that without his getting a pass- 279 port to go to the continent, and the means of carrying him thither, he could not be a witness; on which Mr. Drummond, turning to the solicitor-general, said, 'answer you that.' That the solicitor-general then ordered the clerk to write these words (as he thought)—'whereupon the solicitor-general assured the declarant, that every means necessary would be taken to preserve him and his wife; and that he would get a passport to quit the country, or to go to the continent (he was not sure which), and the means to carry him thither. 'That during that time the sheriff was walking up and down the room, which was a pretty large one, and when the above words were taken down he was desired to come and sign them. That the sheriff came and sat down at the table, and after perusing the paper for some time said, 'I will not sign this,' and added, that as he was an officer of the crown, it was his duty to see justice done; and he could assure him (Campbell) that if he were to sign that paper, he would not be answerable for it for a good deal, for that if he (Campbell) was brought to his oath, and should swear that he had received no promise of reward, and this paper signed, he would perjure himself. That he answered no, if it was considered as a means of his preservation; upon which he was supported in the same argument by Mr. Drummond. Upon which the sheriff said he would sign no such paper. That Mr. Drummond then proposed that it should be put down, that he was to get the means of carrying him to any of the British colonies, in place of going to a foreign kingdom; but the she riff also refused that; and added, that he was willing every thing should be set "down for the preservation of him and his wife, but nothing farther." Sir William Rae's refusal to sign this paper, however, did not prevent the other gentlemen from making it an agreement. Campbell proceeded to state, "that, after the sheriff's declaration, there was a pause for some time, when Mr. Drummond, looking at him, said, Campbell, you know whether 'you can be a witness on these terms or 'not.' He remained silent; and some time after, Mr. Drummond said, 'Now, 'Campbell, do you believe that we can 'do that for you which you expect, without its being set down in the paper?' And that at this time, as he thought, the sheriff was sitting at the table, the solici- 280 tor general and Mr. Drummond standing at the fire, and the other gentlemen walking about the room. That he answered, he knew they were able if they were willing. To which Mr. Drummond replied, could he rely upon them for that. He answered, 'May 1?' Mr. Drummond answered, 'you may;' and that he (Campbell) said pretty loudly, 'well, then, I 'shall rely upon you as gentlemen.' That shortly after this he was allowed to write his declaration himself, all excepting one part, relating to a Mr. Kerr. That a few-days after this, the sheriff, the procurator fiscal, and a clerk, came up to have his narrative signed, which was done; upon which the sheriff said to him, 'Campbell, after you have got clear of this, you had better go home to your loom, and let them rule the nation as they please.' That, upon this, he said, that rather than go back to his loom, he would be served with an indictment himself, even after all he had written. That the sheriff answered, he had nothing to do with that—it remained between him (Campbell) and others. That he was visited by Mr. Drummond after this, who ordered captain Sibbald to get him plenty of books, and that he has read nearly a hundred volumes since that time; that about a fortnight or three weeks before the trial, he wrote a letter to Mr. Drummond, that he was in need of a pair of shoes and a pair of trowsers, and that his wife was in need of money. That he did receive a pair of shoes from captain Sibbald, by the orders of Mr. Drummond, as captain Sibbald said, but that he could not then get any money; but that as soon as the first trial was over, he would get money. That he wrote another letter to Mr. Drummond, stating part of what was in his declaration, as a gentle demand for money, and received the same answer, that he could get no money at present, but that he would get some after the first trial was over; and that he (Sibbald) told him he had got this answer from Mr. Drummond. That although their engagement was not in writing, in consequence of the inter ference of the sheriff, and which writing was immediately burnt in the sheriff's presence, he considered it still a subsisting private engagement, upon the performance of which he thought himself entitled to rely; and that the declaration which he signed, and gave to the sheriff, was made upon a reliance on that engagement. That at the conversation with Mr. 281 Drummond, when he got an order to get the books, he was then cited as a witness on the trial of Andrew M'Kinley, and that the first book that he received from the library, in consequence of that order, was upon the 22nd day of April last. That he was not cited as a witness at the time he signed and delivered his declaration to the sheriff; and that the conversation about the books took place in the week that Mr. Drummond went to the circuit at Glasgow. That the first idea of apprehension of his being in danger was suggested to him by the sheriff and fiscal at Glasgow, who asked him if the reason why he would not be a witness was, that he considered his life to be in danger? That he could not say that he considered! his life to be in danger; but that he did J not choose to go back to Glasgow, after being a witness. That he did not tell Mr. Drummond that his life was in danger, as Mr. Drummond seemed to be impressed with that idea, and he (Campbell) continued to carry it on. That in the conversations above mentioned with Mr. Drummond, or any of the other gentlemen, there was no attempt whatever made to instruct him in any way as to what he should say in giving evidence as a witness."
He (Lord A. Hamilton) now conceived; that he had stated enough to show that a promise was held out to the witness as a! reward for his testimony; and that, from the time at which he was apprehended to the time of his appearance in court, he was under the sole control and influence of the law officers of the Crown. He would beg leave to remind the House of an expression which he was very happy to hear on a recent occasion fall from the attorney-general namely, that God forbid he, or any one officially connected with him, should have any intercourse with a witness in a case of public justice. He trusted that on the present occasion a sentiment so exalted would not remain in the hon. and learned gentleman's breast, but that he would repeat it in confirmation of his (lord A. Hamilton's) opinions. Indeed he trusted that he should that night hear nothing that was not consonant to so just a principle. Government had avowedly employed spies and informers, who, it was generally admitted, had, in many cases, fomented the evil which it was the object to counteract. And he begged now to notice the lamentable condition to which suspected persons, innocent or guilty, were 282 thus reduced in this frank and free country. Any man was liable, on the information of these fomenting instead of detecting spies—out of malice, or to earn their pay—to be taken by secret warrant—to secret imprisonment—to distant gaol—all access denied him, "for fear of tampering" a law officer to threaten or bribe—some accomplice to give agreeable evidence-under such circumstances, what chance had he of bare justice, much less of successfully encountering his enemies [Hear, hear!]. Such proceedings were in direct opposition to all that they had been accustomed to venerate in the British constitution. The facts he had disclosed amounted to subornation of perjury. He could find no other term adequately descriptive of the transaction; for had M'Kinley been convicted on the evidence of Campbell, that conviction must have been obtained by perjury on Campbell's part, in swearing that he had received no promise of any reward, nor had any private motive in giving his evidence, and M'Kinley would have had an undoubted right to say, that he had been convicted in consequence of the unfair practices of the law officers of the Crown. Had Campbell, stimulated as he had been, given false evidence, he should like to know whether the law officers of the crown would not have been answerable for the crime. He would go one step farther. Had M'Kinley been convicted on Campbell's evidence, in what situation would the country have been if he had been executed or transported, and if afterwards it had come out that Mr. Home Drummond had been guilty of the practices in question, and had combined with the lord advocate and the procurator fiscal in prevailing on Campbell to attach criminality to M'Kinlay, and to suppress all those odious and disgraceful scenes in gaol, the result of which disqualified him from giving evidence at all? He contended that the monstrous iniquity would have been thus exhibited of an illegal sentence, produced by illegal means, by the very persons who were bound by office to protect favourably rather than oppress unfairly; in plain words, we should have seen a conviction by means of a perjured witness—whose perjury was first manufactured by the law officers of the crown in gaol, and afterwards brought into court as sound and valid testimony, themselves knowing its base nature and illegal origin. It was the duty of the law officers of the Crown to uphold the dignity and interest of the 283 laws; and he would ask whether, in the transaction under discussion, the law officers of the Crown in Scotland did not violate the sanctity and purity of the laws as palpably, and, indeed, more palpably than M'Kinley in the crime with which he was charged? [Hear, hear!].
What he asked of the House was simply the production of the record of the trial. He could not think that the learned lord could have any objection to be tried upon that document, the more especially when it was considered that it was the manufacture of himself and his legal colleagues. Such as the record was it was their making, and the detail of what they had done. Guilt might indeed fly from such a document, but surely, any one pretending to innocence could neither resist its production, nor dispute its testimony. he could not possibly anticipate a defence of such practices. It was quite impossible that any thing could be said in justification of them; the only difference between himself and the learned lord must be with regard to facts, to what actually had taken place, and he trusted the House, as in duty bound, would decide that difference by the production of the record. The noble lord then read the following extract from Hume's Treatise on the Laws of Scotland, on the subject of tampering with a witness. "If the prosecutor, or any for him, have tempted the witness with bribe or reward, this shall equally exclude his testimony in odium corrumpentis, whether the witness have yielded to or resisted the temptation. Under this head would fall any promise of pardon for other crimes, provided it came from the prosecutor or one authorized by him. Any magistrate who so far forgets his character, and mistakes his powers, as to give assurances of this sort, is indeed guilty of a wrong which may reflect on himself." [Hear, hear!] The noble lord concluded by moving,
"That there be laid before this House, a Copy of such parts of the Books of Adjournal of the High Court of Justiciary in Scotland, as contain the several libels or indictments, and the evidence, and the verdict and judgment, and all other proceedings in the case of Andrew M'Kinley, who was tried before the said High Court of Justiciary at Edinburgh on the 19th of July, in the year 1817."
The Lord Advocate
said, he rose to take the earliest opportunity of meeting the charges which the noble lord had brought 284 against him, but he wished, in the first instance, to endeavour to set himself right with the House on the charge of having practised on the House last session, by making an overcharged statement there, or one which had not since been fully substantiated. The statement which he made last session was precisely that which had been described by the noble lord. He had said that an oath, binding to the commission of high treason, had been administered to several hundreds of people in Glasgow and its vicinity, and the terms of that oath he had had the honour to read to the House. The noble lord had said that he had made that statement uncalled for. On that point he and the noble lord were at issue. Provided the statement was correct, he was persuaded that considering the subject which the House was discussing at the time, the report of the select committee, in which were included statements of transactions that had occurred at Glasgow, if it was in his power to communicate to the House any information on that subject, the noble lord was not entitled to say that such communication was uncalled for. Had he not made such communication, he should have been guilty of a gross dereliction of duty. Now, with respect to the fact itself. He would not go into the detail of the evidence before the high court of justiciary on M'Kinley's trial; but he would state, in as few words as possible, what was the charge against the prisoner, and what was the issue of his trial. The indictment charged the prisoner with having been guilty of administering an unlawful oath to a great many hundreds of persons in Glasgow and its neighbourhood, the names of many of whom were particularized. The issue of his trial was a verdict by the jury of "Not proven." He spoke in the hearing of gentlemen opposite, who were intimately acquainted with the forms of law, and the distinction of verdicts in Scotland. They would tell the House whether or not he was incorrect in stating, that the distinction in Scotland between the verdict of "not proven" and the verdict of "not guilty," was this:—that when the jury were satisfied that the corpus delicti charged in the indictment was proved, and that the person charged was implicated in the guilt, although the legal evidence was insufficient to convict him, they returned a verdict of "not proven;" but that, if they were of opinion no corpus delicti had been proved, they then returned a verdict of "not guilty." In the case in 285 question, the verdict of the jury was "not proven." The inference was—and he stated it without fear of contradiction—that the general fact charged in the indictment, of an illegal oath having been administered to several hundreds of persons in Glasgow and its vicinity, had been admitted by that verdict to be well founded. The result of the trial of M'Kinley, had, therefore, substantiated the statement which he (the lord advocate) had felt it his duty to make in that House last year.
Before he proceeded to any farther explanatory details, he would just observe, that the noble lord had been incorrectly informed with respect to the objection of the prisoner's counsel to the admissibility of Campbell as a witness. He held in his hand the notes of the short-hand writer who attended on the occasion, and who was quite uninfluenced on the subject, being, he believed, in no way connected with the parties; which notes had been transmitted to him, and were, he understood, preparing for the press. Though the noble lord had read the record, he did not appear to have attended to the nature of the objections which his learned friend, the counsel for the prisoner, had made to the admissibility of Campbell as a witness. He would read to the House from the notes which he had described the passage to which he alluded. It was the following:
"First witness, John Campbell, called. Objected to by the counsel for the prisoner on two grounds. 1st, He is not sufficiently designed in the list of witnesses. He is designed prisoner in the Castle of Edinburgh. Under this designation it is impossible for the prisoner to identify the witness, access having been refused to him by the express desire of the lord advocate. There may be many John Campbells, prisoners in the Castle of Edinburgh. The object of designing witnesses on the list given in, is to enable the panel (prisoner) to ascertain who they are, and to make proper inquiries concerning them. 2dly, All access was refused to this John Campbell, so that the prisoner, and those charged with conducting his defence, were prevented from examining him, to know what he knew of the matter imputed. All this was done by the act of the prosecutor, who is therefore barred, personali exceptione, from examining the witness. Application was made at the castle by the agent for the panel, for admission to the wit- 286 ness. He was told by the fort-major, that his orders were, to admit no person to see any of the prisoners, without an order in writing from the lord advocate. Application was then made in writing to Mr. Warrender, the crown agent, for admission to see Campbell, who was stated to be a witness to be adduced against the prisoner, and contained in the list of witnesses served on him. In answer to tills application, a letter was received from Mr. Warrender, on the part of the lord advocate, refusing the application. This witness, it was also understood, was secluded and kept in close custody, upon a charge of treason directed against himself. At all events, his seclusion was by the act and authority of the lord advocate. Suppose the prosecutor were to take a with ness, and to lock him up of his private authority, where he could not be got at by those acting for the panel, would it be any answer to say, 'You might have applied for a warrant from the court of 'justiciary?' The reply would be obvious 'You, the prosecutor, cannot take advantage of your own wrong.'"
It appeared, therefore, that the counsel for the prisoner objected to Campbell as a witness, first, because he had not been sufficiently designed in the list of witnesses, and secondly, because admittance to him in the Castle of Edinburgh, in order to ascertain the nature of the testimony which he was prepared to give, had been refused; but not at all—as had been asserted by the noble lord, because he had been tampered with as a witness. That was an entirely improper and unfounded statement.
One of the most prominent features of the noble lord's speech was his assertion of the attorney-general's declaration, that he could not in the due discharge of his duty communicate with a witness previous to trial. Whatever might be the practice in England, it was impossible, according to the established-laws of Scotland, that it should prevail in that country. Some communication with the witnesses was indispensable for the furtherance of public justice. The duties of the attorney general of England and the lord advocate of Scotland were in many respects different. The lord advocate was not only the public prosecutor as the attorney-general was, but he was likewise a police magistrate. This arose from the circumstance of Scotland being a separate government without having a resident administration. Every 287 body who knew any thing of Scotland, 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 Union 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. AH 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- 288 ficient evidence of what he had said. He 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 conducted, 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.
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‡289 the neighbouring districts, and even in all the northern parts of England. Under those circumstances, acting on his official responsibility, and with a view to maintain the public peace, he had directed Mr. Drummond to go to the Castle, in order to learn if the individual in question, on promise of pardon, would communicate information on the subject. Mr. Drummond was not authorized to promise Campbell any situation. In reporting to him (the lord advocate) the conversation which he had had with that individual, he never stated that he had made such a promise, and he (the lord advocate) now distinctly denied, on Mr. Drummond's part, that any such promise had been made to Campbell by that gentleman.
He should now state what took place between Mr. Drummond and the prisoner, though in stating that, he was aware that he was merely producing the statement of a man not upon oath, opposed to the oath of another person who had been examined by the court. But though he was so examined, that did not make his evidence altogether credible. In the situation in which this witness, Campbell, stood, his evidence, when not corroborated by other witnesses, could not be considered as conclusive, he would ask, if any man could doubt, from what even Campbell himself had stated, that he had an interest in disqualifying himself from giving evidence? He had a palpable interest in not giving his evidence. He would admit that he had authorized Mr. Drummond to promise to Campbell, if he gave evidence, he should have a satisfactory security of his being sent abroad. If he gave evidence, he in the first place secured his own life, and in the second place he secured the conviction of the party: but then, in consequence of this conviction, he considered that he could not himself be secure in his own country. Now, by not giving evidence, from his disqualifying himself, his own life was not only not endangered, but there was no necessity for his being sent abroad. But he would say farther, that Campbell's evidence was contaminated in other respects—it was liable to suspicion on other grounds. It was stated in the passage of the report of the trial, which he had just read to the House, that an objection was brought forward by the counsel for the prisoner, that he had had no access to Campbell to know what evidence that witness would give. Now he would ask an hon. and learned gentle- 290 man in the House, who was counsel on that trial, to contradict him if he could, when he stated that two of that hon. gentleman's learned friends were acquainted a fortnight before with the nature of the evidence to be given by the witness that day. He did not say that the hon. and learned gentleman himself knew of this—but two of his colleagues did. Nay, there was proof that what he had stated was true, and could not be contradicted; for Mr. Jeffrey, after Campbell had delivered his evidence, staled, that he was prepared, step by step, to corroborate the whole of what the witness had said. Now he would say here was at once evidence of a previous communication with Campbell—and he would ask after that, if it was likely that Campbell was afterwards in distress, in consequence of giving his evidence without reward? He would oppose to the evidence of Campbell, a statement made to him by Mr. Drummond. The statement made to him by Mr. Drummond was this—that on going to the Castle to visit this person, he had stated to him, that he was in the greatest terror of his life if he gave information; that at that time the only object that Campbell seemed to have in view was, the obtaining a promise from him of some measures to insure his safety after giving his evidence. After this Mr. Drummond did not go to the Castle of his own accord, but was sent for by Campbell. The person who came to him was the gaoler, who said that Campbell was anxious to see Mr. Drummond. He went accordingly, when Campbell told him, that as a condition of his giving evidence, he wished to have a passport, and means to go abroad; that in such a case he was not only prepared to give evidence, but information; but that otherwise he could neither give evidence nor information. Mr. Drummond then stated, that without consulting him (the lord advocate) and having his authority', he could not take that course. Accordingly, Mr. Drummond communicated the proposition of Campbell to him, and after consultation with the other law officers of the crown, and after considering the question of law in the best manner they were able, they came to this conclusion, that they were not only entitled to make the witness the promise of a passport and the means of conveying him to a foreign country, but that they were even bound to do so—that they were bound to afford him protection in a way which he himself con- 291 ceived was the only available way. He directed Mr. Drummond, therefore, to make a promise to him, that what he requested should be done. On the same occasion Mr. Drummond communicated to him, that the prisoner was under the greatest apprehension on account of his wife—that he was desirous of having her brought to Edinburgh, to be near a sister, and that he had applied to him for money for that purpose. Mr. Drummond said he had told him that he could do nothing on this subject without his (the lord advocate's) authority. A letter from Campbell was afterwards brought to him. He stated positively, that as to giving any money to induce him to give evidence, that he could not do, and it ought not to be done; but he trusted that gentlemen on the other side of the House would not think that in the situation in which the witness stood he had done any thing unbecoming and improper in endeavouring to alleviate his case by bringing the woman to Edinburgh. On being informed of this request of Campbell respecting his wife, he gave directions that a place should be taken for her in a public conveyance by the magistrates of Glasgow; although he really did not know whether or not she ever came to Edinburgh. Whether this conduct on his part and the part of the other law officers of the Crown on this occasion was legal or illegal, it was at least that of persons acting bona fide—who considered they were doing their duty; and that they were not acting illegally. Had they considered they were acting illegally, instead of sending for the sheriff, the sheriff substitute, the procurator fiscal, and the sheriff clerk, they would have made a promise to Campbell in secret. Should they have thought of having these magistrates present, when the promise would have been equally available without the magistrate? All this stood on record on the evidence of Campbell himself. He stated, that the sheriff substitute, equal in authority to the sheriff, began to take the declaration, and the witness stated something as to the terms he had himself mentioned, as he believed, to Mr. Drummond, the sheriff-substitute, and the procurator fiscal; and Mr. Drummond asked Campbell what he had got to say? The deponent answered, suppose he communicated that affair, and was to tell the whole truth, he could not consider either himself or his wife safe, and without a passport and means to go 292 abroad he would not be a witness. To this the solicitor-general made a reply, amounting in truth to this, that the prisoner might consider that such means as were necessary to his safety would be taken;—that he should be sent to the continent, and that he should have a passport and means of conveyance. That as this proceeding took place the sheriff entered, and he then stated he was aware that the witness had endeavoured to give another colour to the transaction, but he should show that what he stated could not be true, from what he afterwards said—the sheriff then said, that a statement of such a kind was not usual in a declaration, but he would verbally assure the witness that he should be protected. On which the solicitor-general said, "You know then what to expect." In his account of this part of the proceeding, the witness stated that sir Wm. Rae, the sheriff, said, "I will not sign this;" and added, as an officer of the Crown, it was his duty to see justice done; and he assured them, if he were to sign it, he would not answer for it for a good deal; that, in that case, when the witness should be asked if no reward, or promise of reward, was made to him? if he answered in the negative, he would be perjuring himself. But what the witness afterwards stated carried with it the contradiction of this account. Mr. Drummond, he said, then tried to modify the affair, by suggesting the British colonies instead of the continent. But what was the difference, he would ask, between conveying him to Prussia and conveying him to the British colonies, if the whole was an illegal transaction?—Would not the sheriff, would not the other gentlemen there have protested against the one as well as the other? Was it possible to imagine also that the paper would have been destroyed in order to conceal what had passed? They were bound to preserve all the evidence taken by them, whether for or against the prisoner. It was not the sheriff, but the clerk, when the evidence was taken, who was bound to preserve it in memoriam rei. It was impossible, therefore, to think of sheltering the Crown counsel, even if such a thing were wished. They were desired to believe, that the sheriff had assented to the modification suggested by Mr. Home Drummond; but he would say, that if the first proposition was it-legal, the second was not less illegal; and they would have been acting illegally in 293 taking the second declaration, as well as the first.
The noble lord had stated correctly the initiative question in the examination of witnesses in Scotland. The witness was asked, if he bore any malice against the prisoner—if he answered yes, the court then endeavoured to ascertain what the nature of the malice was—whether it was such as would induce the witness to swear falsely against the prisoner. The witness was then asked, if he had been told what he should say—if he answered yes; he was asked what he had been told to say? When he was asked, if any person had told him what to say, and he answered yes—that was in itself no objection, but if he told what he had been instructed to say, and it appeared to the court that this would lead him to give false evidence, then the court would reject the witness. In the same when the third question was put to him, whether he had received any reward or promise of reward, the court would examine into the nature of the reward, whether it was such as had a tendency to lead him to give false evidence. A court could not consider every reward as completely subversive of every testimony—because in that case no socius criminis could ever be a witness. Such a person must state that he came forward under a gift—the absolute promise of a free pardon. He would on this subject read a passage from a book, which, with whatever authority, it might be received, referred to the last case which had been decided. It was from the work of Mr. Burnet, p. 416. Here the learned lord read a passage, in which a case decided on the 8th of December, 1799, was cited. The court had decided that a promise of reward to a witness if he spoke out, did not disqualify him—but if he was promised a reward on condition of his giving such and such an evidence, the objection to his evidence ought to be sustained, as this amounted to a bribe to give a particular evidence. The noble lord had therefore been misinformed as to the law of Scotland on the case of a promise of reward to a witness if he spoke out. But was this, he would ask, the law of Scotland alone? He would state, with deference to the House, that it was also the great constitutional law of this country. This House would recollect that, on the trial of lord Melville, three questions had been put to the twelve judges, as to the admissibility of Mr. Trotter's evidence. On 294 two of these questions the judges were divided, and a bill was brought in to obviate the difficulty. The third question, however, was, whether a person could properly be examined as a witness on such a trial, who, by the evidence he might give, might either discharge himself from a debt, or render himself liable to it. Lord chief justice Mansfield delivered the unanimous opinion of the judges, that the objection of his being an interested witness ought to be repelled—as whatever was offered on condition of his making a full and fair disclosure, could legally make no difference with respect to his evidence, he being bound by his oath, by law, morality, and honour, to declare, the truth, the whole truth, and nothing but the truth. This was the law of Scotland, and the constitutional law of the country. It was a fact that after Mr. Trotter had been examined as a witness before the high court of parliament, he was sent for by the committee of managers of that prosecution, and again examined by them before he was next day put into the witness's box. Understanding that such was the law of Scotland, he had certainly entertained it as his opinion that he could make a promise of protection to the witness, and on that opinion he had acted and promised the witness protection, and in the way alone which he himself considered available. Why was it that a socius criminis, was promised a pardon and a witness protection? It was that they might come forward to give evidence unbiassed, by fear either of the prosecutor or the prisoner respecting their evidence. In some situations in a neighbouring country, Ireland, a guard of soldiers had sometimes been ordered to afford protection to witnesses. Now if from a situation in which there was a great and extended conspiracy, comprehending two or three hundred men, bound on oath to avenge any disclosure of their plans, it could not be safe for one of the conspirators to give evidence, was it not the duty of the prosecutor to endeavour, as far as he could to screen the witness from danger? He was therefore, he considered, justified in promising this witness a passport, and if he had not the means, to have him conveyed abroad at the public expense.
There was one part of the deposition of Campbell which the noble lord had read in rather a lower tone of voice than the rest,—the concluding part of what he 295 had stated respecting his conversation with Mr. Drummond. He had there stated that no attempt was made to instruct him as to what he was to say. The game was stated by sir William Rae. And from the beginning to the end of the deposition, he never alleged that one question was put to him by Mr. Home Drummond, or any other person, as to the practices in which he was engaged. If they had had any sinister purposes in view, would they not have endeavoured to effect it by putting such leading questions to him? But they had acted with that regard to the purity of testimony, that they had not put one question to him from beginning to end with respect to his own conduct. Stress had been laid on Campbell's statement, that he was to give information to please the lord advocate. But he stated that this was not to come forward as a witness, but in a previous examination. He was told, that if he would give such information as pleased the lord advocate, he would neither be tried himself, nor should he be brought forward as a witness. This was merely for the purpose of learning the fact. For what earthly purpose should he ask Campbell to tell him what was not true, when he could neither be brought forward as a prisoner, nor as a witness? If he could not be produced on the trial, it would be in vain for the lord advocate to allege that he had received such and such information from a third party who was not forthcoming. There was not any attempt here to lead the witness. If he was not promised a reward to give evidence in a particular way there could be no exception taken to him, nor could any charge of illegal conduct he brought against the person by whom the promise was made.
With regard to certain indulgences shown to the witness, Campbell, as the noble lord had passed them slightly over, he was not certain whether he considered them in the light of rewards or not. They were not confined to the witness Campbell. Every indulgence was given to the other witnesses, as well as to Campbell. At the end of the trial too the prisoner M'Kinley, after thanking the court and the jury, concluded with thanking the lord advocate, "I wish to declare," he said, "that all liberty and indulgence was shown to me in my confinement, which a prisoner can expect under such circumstances." Whether the witnesses chose clothes or books, their requests were in- 296 dulged as far as possible. All the prisoners and witnesses received that species of indulgence towards which their turn of mind inclined them. He remembered, however, that Campbell made at one time a demand for money—he had written three letters in all. One of his letters contained a pressing application, on the ground of his wife's being brought to bed, for twenty-three shillings; but he (the lord advocate) had caused it to be distinctly intimated to him in reply, that he should not have any money. The noble lord had stated, with respect to the examination of Campbell, that all was intended to remain a secret. But he would tell the noble lord, that the moment Campbell was examined as a witness, all possibility of secrecy was at an end. The public prosecutor could be called on at any time for the declaration—the object of the intervention of the sheriff was to prevent secrecy—if the present prosecutor went out of office that the evidence might remain behind—and that it might be known, if blame attached to any person, what it was, that the prisoner might bring his action in case he considered himself aggrieved. The noble lord in stating that it was intended to bring forward Campbell as a witness to hang M'Kinley was inaccurate, because before Campbell was brought forward, the prisoner was out of all jeopardy as to his life, as he, the lord advocate, had contented himself with concluding for an arbitrary punishment.
He trusted that the explanation he had given would convince the House that the noble lord was in an error with respect to the law of Scotland and the constitutional law of the country. But he wished to observe, in conclusion, that by this parliamentary discussion the noble lord was interfering with the administration of justice of the country. Not one of the prisoners was arrested or tried on the suspension of the Habeas Corpus act. Every one of them was taken up on the common law of the country—and an action lay against the prosecutor for the Crown for having acted wrongously, and thus he was interfering with the remedy of these prisoners. They were entitled not only to prosecute him criminally, but to bring a civil action against him with the view of obtaining damages. He had now answered all the charges which the noble lord had brought against him, and he thanked the House for the patience with which they had heard him disprove the 297 allegations. He hart 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.
§ 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 sincere pleasure than that the learned lord had succeeded in removing the imputation cast upon him by the evidence of Campbell. The learned lord may believe me when I state, that I have never approached any question with more personal pain than I approach the present; but this is not a question in which personal considerations can be indulged. If there be any question on which such considerations must be sacrificed, it is this which arises out of the evidence of this man. This is as grave a charge, and on a matter as vital to the interests of the country, as ever was preferred to parliament. Even those who do not know me will not suppose that I can rise in my place in parliament, to deliver the opinions, which I shall be compelled to deliver before I sit down, of the conduct of gentlemen with whom I am in the daily habit of professional intercourse, 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.
With regard to the disturbances at Glasgow; the extent of the conspiracy alleged to have existed there; and the justification of the statement made in this House, in the last session, on that subject,* See New Parliamentary History, Vol. 20, p. 1486.298 by the learned lord; when the time cornea 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—a 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.
The learned lord has said that my noble friend, in bringing forward this motion, is interfering with the ordinary course of the law; and he has stated, that the persons arrested were taken up, not on the new law suspending the Habeas Corpus act, or the similar act in Scotland, but under the common law of Scotland; and that the persons who think themselves aggrieved may commence criminal or civil prosecutions. But is it any thing to this House, intrusted as we are with the care of the lives and liberties of our fellow-sub-jects—with the superintendence of the courts of justice—who are hound to watch their conduct with a jealous eye, and still more especially the conduct of the law officers of the Crown—is it to be told us, sitting here in parliament, that private individuals may commence actions such as I have been described? Sir, private individuals may bring such actions as the law 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.
Let us see what this charge is, and how it 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!].
299 I have now stated, as briefly and as clearly as I can, the accusations against the learned lord: I do not mean to say that they are true, but I will say that they are made on such authority, that they must be received as true in this House, till they are contradicted: and they stand to this moment uncontradicted even in statement, except by the statement of the learned lord, in this House. I will say for the learned lord and his coadjutors, that it is not fair to them to permit these accusations to stand uncontradicted. I will say it is not fair to this House, to ask of it to permit this evidence to stand uncontradicted on record: it is not fair to us, to ask that the record may not be laid on the table, that we may examine into the truth of this evidence. This evidence is contained in a deposition on oath of a credible witness, recorded in the books of the high court of justiciary. The deposition was taken down in writing, at the desire of the learned lord himself, contrary to the ordinary practice, and now forms part of the records of the court.
It is our duty, Sir, to have this matter clearly ascertained. The witness himself has taken pains, in the whole course of his deposition, to furnish the means by which, if untrue, his evidence may be contradicted: he mentions the names of many persons as privy to the transactions related by him, and states a number of minute facts: I will ask the House, I will ask my learned friend opposite (the attorney-general), if this evidence be not true, whether he has ever, in the course of his experience, seen a single case where perjury might be so easily detected? Now, months after months have elapsed since this trial, on which evidence was given, imputing to these learned persons things which, till now, I did not believe any man would have allowed to remain uncontradicted. Yet no prosecution for perjury has been brought. The learned lord has told us, that he acts as the grand jury in Scotland; he had nothing therefore to do but indict this man for perjury; and, I give him my word of honour, that he, the learned lord himself, could not be more pleased than I should have been, if the learned lord had succeeded in rescuing from this reproach his own character, and the character of the profession to which I have the honour to belong. Let it not be supposed that in any thing I have said of his conduct, I am actuated by any personal motives towards the learned lord. I can feel towards him, 300 and towards the other unfortunate gentlemen concerned in this transaction, no sentiments but those of pity and compassion. I am actuated by considerations of public duty alone. And why should it be otherwise? Is there any thing in the private life of the learned lord which can induce me to bear rancour towards him? Is there any thing in his situation, notwithstanding he holds this important office, calculated to provoke political hostility? Where would be the victory over him? What party object could be accomplished by his defeat? This, Sir, is no party question. I am proud to say, that there exist persons in this country, who act together in this House, and elsewhere, to whom nothing is indifferent which concerns the public welfare, or the safety of the constitution. In this sense, this may be considered as taken up by a party. But in no other sense can it be supposed to involve any party question.
I request the House now to go along with me through the whole of this man's deposition, and I will ask them if they think the charge it contains ought to remain uncontradicted? The beginning of the statement is of use only to show the general spirit with which this business was conducted; but it is useful to this purpose; and the House, by the displeasure which it expresses, will teach all inferior magistrates that such practices cannot be suffered to pass with impunity. The deposition commences by stating that the witness was apprehended, and so on. "That he was taken to be examined before the sheriff depute of Lanarkshire; and being interrogated if he knew what he was brought there for? he answered, that he did not know. On which the sheriff insisted that he did; and added," it would be wisdom of him to make his breast clean. "He is then left with the procurator fiscal, Mr. Salmond, alone. At least the witness says he is not sure whether any other person was present or not, Mr. Salmond came up to the witness, saying" John, you perhaps do not know that I know so much about this affair;" and adding, "I know more about it than you think I do." He was often closeted with Mr. Salmond; on one of which occasions, after using many entreaties to the witness, and these having failed, after railing at the prisoners as villains who had betrayed him (the witness), Mr. Salmond said, "John, I assure you that I have six men who will swear that you 301 took that oath, and you will be hanged as sure as you are alive." After this, Salmond said, "John, you will ruin yourself if you persist in this way; but if you take the other way, you will do yourself much good." [Hear!] "Depones, that after much conversation, the witness said he was not afraid of the one way, and he did not see much good he could do himself by the other. Mr. Salmond said, the lord advocate was in Glasgow." This was a mistake; Mr. Home Drummond, the advocate depute, was meant, and is by mistake here called the lord advocate, Mr. Home Drummond was at Glasgow at the time. "Mr. Salmond said the lord advocate was in Glasgow; and he would come under any obligation he chose, if he would be a witness."
The learned lord has said, that all that took place was for the purpose of obtaining information. But there was here, at the very first, no word of giving information. The reward was offered if he would be a witness. The witness then states, that he was taken again before the sheriff, and there, to confirm the circumstance that Mr. Salmond spoke from authority, Mr. Drummond, the advocate depute, came into the room. But the witness admits the subject of the obligation was not mentioned. He was then removed to the Castle of Edinburgh. There the operations of the advocate depute begin. "When in the Castle of Edinburgh, Mr. Drummond came to him, and mentioned that M'Kinley had been served with an indictment, and that his (the witness's) name was in the list of witnesses, and that now was the time for him to determine whether he would be a witness or not."
"The deponent stated, that he did not wish to be a witness, and that he, Mr. Drummond, knew that if he was, he need not go back to Glasgow, as he could not live there. Depones, that Mr. Drummond then said, that he was quite sensible of that, but that he might go and reside somewhere else, and that he might change his name; but the witness said he would not change his name, and that it would be much the same if he lived in any other manufacturing place as in Glasgow. Depones, that Mr. Drummond then said, he had been thinking of a plan of writing to lord Sidmouth, to get him into the excise, and that if he, the witness, chose, he would write to lord Sidmouth, and show him his answer."
302 This offer was made after the witness was told he was in the list of witnesses, that he must appear and give evidence, that he was in a situation where he could not help himself, where he could not avoid speaking out, but where he might avoid saying what would be agreeable to those who wished to produce him. The record goes on to state, that the witness answered, he did not choose to be an exciseman; and remarked at the same time, that it was perhaps the only office under government which he was fit for; but as it was an office attended with risk and ill-will, he did not choose to accept of it, as he had suffered already considerably in that way by being a peace officer. He was then asked what he would have, and afterwards the offer was made him to be sent abroad. Was this necessary to a witness who was already on the fist, and might be compelled to appear? Was all this requisite for his protection if he spoke the truth? Was sending him abroad protecting him? Was the offer of making him an exciseman, an offer only of protection? But the witness adds, that nobody was present at this conversation, and that it was conducted only by Campbell and Mr. Drummond, and therefore it must rest on the testimony of Campbell. But its probability or improbability will appear from subsequent parts of the deposition. The witness did not take the office of an exciseman, as it was exposed to danger: then the advocate depute was ready to come to any other terms he chose: he says, if you will not be an exciseman, what then do you want? what will you have?—"Depones, that at the first interview, after what is above mentioned, Mr. Drummond asked him what he wanted to have."—Was there any question about giving information here? Was there any thing here like the fair and candid examination by a magistrate, of a person called before him to disclose circumstances material to the ends of justice? The advocate depute told him that he was already in the list of witnesses, that he must be put into the witness-box; and yet, he adds, "Now is the time for you to determine whether you will be a witness or not!"—[Loud cries of Hear!] Is any body so dull as not to understand the purpose of this conversation? He was already a witness, why then was he asked if he would be a witness, unless the question alluded to the nature of the evidence which it was wished that he should give? 303 Now, had all this about the exciseman's place been a fabrication, it is probable the man would have let it rest here. He would have been contented with having once announced it. But not so. In a subsequent part of his deposition he recurs to it again. A little farther on he says, that, at a subsequent interview, he asked Mr. Drummond "if he had wrote to lord Sidmouth, and Mr. Drummond answered he had not, as the witness had rejected it." Could all this escape the recollection of Mr. Drummond? The circumstances are most particularly stated. First, the offer made, which was declined.—Then, the conversation which ensued at the time.—And again, the subsequent mention of it, the question of the witness and the answer of Mr. Drummond.
I come now to what I consider as the most painful passage in this record. It is one on which the learned lord has particularly dwelt, and it is the only passage in which there is any mention of obtaining information. "Depones," that at the first interview after what is above mentioned, Mr. Drummond asked him what he wanted to have? The witness remained silent, and made no answer. Depones, That Mr. Drummond then said, that if he would give such information as would please the lord advocate, he should neither be tried himself, nor made a witness." Here is the distinction clearly drawn between the functions of an informer and a witness. The man is in no mistake. He knows well what he says. Mr. Drummond was willing to compromise the matter. The first attempt was to make him a witness.! But this failed. He was offered an exciseman's place. But he refused. He is then asked what he would have?—He remains silent. And when Mr. Drummond finds he cannot prevail on him to be a witness, at least such a witness as he wanted, he is willing to compound for receiving information. He had refused "to be a witness;" and the advocate depute, after having told him that he was in the list of witnesses, and could be compelled to appear, now said, If you give information, you shall not be made a witness. Does not this mention of information, coupled with the offer of exempting him from being a witness, sufficiently prove that they had dealt with him as with a witness before? [Hear, hear!]
But this is not all. What is the threat held out to him? to this man whom they 304 were endeavouring to prevail on to give evidence? Mr. Drummond begins with promises of reward, and concludes with no obscure hint of his danger. His interest is first appealed to by holding out the prospect of situations of advantage; and his fears are next assailed by intimating, pretty plainly, the possibility of his being tried for his life. However necessary it may be to hold out promises of pardon to those who are concerned in public crimes, and to make use of their evidence with proper caution, it surely cannot be maintained, on any plea of necessity, that such a method of procuring witnesses as is here divulged, supposing the statement to be true, is justified by law, or consistent with humanity. On this proposition being made to the witness, he hesitated. "He said that was an uncertain matter, as he did not know what information they wanted." And more to the same purpose. "Mr. Drummond then said, I do not know what to do with you, Campbell. I wish to do every thing I can to favour you. I shall give you a day or two to think of it. Mr. Drummond added, Do you wish I should call back again?" He will not leave him without the hope that his offers and persuasions may be renewed. As he is going away, he turns round, "Shall I call back again?" I do not state these assertions as proofs—and I repeat, that I desire to be so understood; but they amount to such a degree of probability, and are calculated to make such impressions, as ought at least to be met with some explanation or contradiction, if they are liable to be so met.
The witness proceeds to state, that when Mr. Drummond called afterwards at the Castle, where these conversations took place, he asked him if he had made up his mind? He answered that he had, upon conditions. The conditions were, that he should receive a passport to go to the Continent, where, being a mechanic, he feared that the laws of the country would not allow him to go. Mr. Drummond replied, "There is no question but you will get that, and means to carry you there." The witness then said, that, upon these conditions, he would be a witness, provided his wife was also taken into consideration; and on his stating that she was in delicate health, had no means of support but what she earned, and that he feared the public might manifest their displeasure at his becoming a witness by ill-treatment of her; Mr. Drummond de- 305 sired him to write to her, stating what he was about, and that a one-pound note was inclosed, and desiring her to retire for the present to his father's, Mr. Drummond undertaking to furnish the one-pound note. The letter, however, was not sent, but the procurator fiscal of Glasgow was written to on the subject by the lord advocate's desire. I shall not trouble the House by going over more minutely the story of this one-pound note.
I now come to what summed up the whole of these proceedings. The witness says, that an examination afterwards took place in the presence of the sheriff, the sheriff substitute, the solicitor general, a clerk, and the procurator fiscal of Edinburgh. "He depones, that he was informed by Mr. Drummond, that the sheriff was coming to examine him; and that it was agreed upon, that, in answer to the first question, he (the witness), was to states, and have it taken down, that he was to receive a passport to go to the continent, and the means to carry him there, it being understood that Prussia was to be his destination; that the sheriff, and, as he believes, the sheriff substitute, the solicitor general, the procurator fiscal of Edinburgh, as he understood, and a clerk, came into the room; and Mr. Drummond having asked Campbell, "What have you got to say in this business?" the deponent answered, that supposing he was concerned in that affair, and was to tell the whole truth, that he did not consider either himself or his wife safe, and that without his getting a passport to go to the continent, and the means of carrying him there, he could not be a witness; upon which Mr. Drummond, turning to the solicitor general, said, "Answer you that." That the solicitor general then ordered the clerk to write these words, as he thinks: "Whereupon the solicitor general assures the declarant, that every means necessary will be taken to preserve him and his wife, and that he will get a passport to quit the country, or go to the continent (he is not sure which), and the means to carry him there:" that, during this time, the sheriff was walking up and down the room, which is a pretty large one; and when the above words were taken down. he was desired to come and sign this. Depones, That the sheriff* came and sat down at the table, and after perusing the paper for some time, said, "I will not sign this;" and added, that as he was an officer of the crown, it was his duty to see justice done; 306 and he could assure the witness, if he was to sign that paper, he would not be answerable for it for a good deal; for that if the deponent was brought to his oath, and should swear that he had received no promise of reward, and this paper signed, he would perjure himself. That the witness answered, No, if it was considered as a means of his preservation; upon which he was supported in the same argument by Mr. Drummond. Upon which the sheriff said he would sign no such paper. That Mr. Drummond then proposed that it should be put down, that he was to get the means of carrying him to any of the British colonies, in place of going to a foreign kingdom; but the sheriff also refused that, and added, "That he was willing every thing should be set down for the preservation of him and his wife, but nothing farther." That after the sheriff had stated this, there was a pause for some time when Mr. Drummond, looking at the deponent, said, "Campbell, you know whether you can be a witness on these terms, or not." The witness remained silent; and some time after, Mr. Drummond said, "Now, Campbell, do you believe that we can do that for you which you expect, without its being set down in the paper?" and that at this time, as he thinks, the sheriff was sitting at the table, the solicitor general and Mr. Drummond standing at the fire, and the other gentlemen walking about the room. That the witness answered, he knew they were able if they were willing. To which Mr. Drummond replied, "Could he rely upon them for that?" The witness answered, "May I?" Mr. Drummond answered, "You may;" and that the witness said pretty loudly, "Well, then, I shall rely upon you as gentlemen." After this he was permitted to write his declaration himself for the information of the law officers of the Crown, and was I afterwards brought forward as a witness against M'Kinley at the trial.
Now, here we have the whole sum and substance of all the previous communications with Mr. Drummond brought together, and detailed in the presence of all these persons. The witness has himself furnished you with the names of all these persons. He has minutely described their positions in the room at the time. Could any thing be more easy, than to contradict him if all this was a lie? There was Mr. Home Drummond. There was the solicitor general. It may be said they were interested to contradict him. They were never the 307 less good witnesses against him, and would have been perfectly credible witnesses. But there was the clerk who sat at the table, and wrote the extraordinary instrument which was to record this yet more extraordinary bargain. He had no interest and could not have forgotten what passed. There was the sheriff who read and carefully considered the terms of the writing, and then refused to have any thing to do with the transaction. There was the sheriff substitute. There was the procurator fiscal. These persons had no interest; but were in every respect most unimpeachable witnesses. Why have not those persons been brought forward to contradict him?
It was agreed, then, that he should be carried to the place of his destination, which was Prussia. It has been said that it was fair to engage to carry the prisoner out of the reach of danger; but how does the fact appear? The trade to which he belonged was at the time paid at the rate of about 4s. 6d. or 5s. a week at Glasgow, with which the workman had to maintain himself and his family. It is notorious that the manufacturers of Glasgow were in a state of actual starvation, and equally well known that in Prussia great encouragement was held out to men in the situation of this witness. In truth, there was the greatest desire among them to obtain the means of going to Prussia. Can we then be told that this was not in the nature of a reward? Was it no offer of reward to offer to convey a man from a place where he and his family were starving, and where he felt his situation hopeless, to where he believed he would obtain an adequate recompense for his labour, and be placed in a state of comparative opulence?
I would beg to know how another fact can be got over. He wrote to Mr. Drummond for a pair of shoes, and a pair of trowsers, and some money for his wife. He got the shoes from the goaler, but was informed by him at the same time, that he could not give him any money till after the first trial was over, and that this was the answer he was desired to make by Mr. Drummond himself. If these were not facts, what could be more easy than to prosecute this man for perjury? He mentioned facts and circumstances which must rivet what passed in the minds of the persons stated to - be present, or to have been privy to them, and those persons might appear as unim- 308 peachable witnesses against him in a trial for perjury. He said farther, that the engagement, which had been reduced to writing, had been burnt in the presence of the sheriff. The learned lord admitted that a paper was burnt; but argues that because it was destroyed in the presence of the sheriff, we are justified in concluding that there was nothing in it but what might fairly see the light—[A laugh]. I will not consume the time of the House in replying to such an argument as this. I will leave it to the House to determine between the gloss of the learned lord on this fact, and the inference which I am disposed to draw. In doing so, they will decide whether, if that paper could be produced, it is probable that it would contradict the evidence of the witness. The man also states having received a number of books from a circulating library, naming the day on which he received the first. In short he has omitted nothing which was calculated to show the accuracy of his recollection, or to detect him if he swore falsely—[Hear!]. Another part of the evidence which I shall notice is the account which the witness gives of the manner in which the opinion of his life being in danger originated. The sheriff and procurator fiscal of Glasgow first asked him if he considered his life in danger. "Depones, that the first idea of apprehension of his being in danger was suggested to the deponent by the sheriff and fiscal at Glasgow, who asked him if the reason why he would not be a witness was, that he considered his life to be in danger? That he cannot say that he considered his life to be in danger: but that he did not choose to go back to Glasgow after being a witness. Depones, that he did not tell Mr. Drummond that his life was in danger;" but he admits that "Mr. Drummond seemed to be impressed with that idea, and the deponent continued to carry it on." So that the very idea of the danger from which they were so anxious to assure the witness they would protect him, was started by the law officers themselves. The witness not only did not consider his life in danger, but he never told any of them that he did consider it in danger. They took it from the first for granted; and were never at the pains even to question him seriously on the subject. But so eager were they to afford him their protection, that they never inquired into the reality of his danger, but were quite satisfied with their 309 own impression, which, it seems, he had no desire to remove, but "continued to carry it on."
The learned lord has charged my noble friend with reading those parts of the evidence which are in the learned lord's favour in a lower tone of voice than those which he conceived to make against him. But I am not aware of any such difference. I believe my noble friend's tone throughout to have been sufficiently audible. And the nature of the accusation preferred by my noble friend, and the scope of his argument, show that he could not mean to sink that part of the evidence on which the learned lord relies. I will read it, for the learned lord's satisfaction, in a louder tone of voice. "Depones, that in the conversations above-mentioned with Mr. Drummond, or any of the other gentlemen, there was no attempt whatever made to instruct him in any way as to what he should say, in giving evidence as a witness, & c."
Now I take upon myself distinctly to say, that if the witness did receive a reward, or the promise of it, on condition of giving testimony, though nothing should be said as to what the nature of that testimony was to be, the witness was by the law of Scotland disqualified. The sheriff has so decided in this very case; the court has so decided; the learned lord has himself so decided, by withdrawing his witness. Why did he withdraw the witness, but that he knew, that, if what he stated was true, he was inadmissible? We have the authority of the sheriff, who declared, that, if he took the cath, he would be perjured. We have the authority of the court, who declared that, if that had passed, which he swore had passed, he could not be received as a witness. Now, in opposition to this, the learned lord has quoted Mr. Burnet's book; and a case, I think, of a man of the name of Home. I beg to say, that the book to which he has alluded is not a good authority, nor is the case, if it be as reported, held to be well decided. I knew the author of that book very well. He was a very excellent and pains-taking man; but his book is not a book of authority; and as to Home's case, we have not the case fully reported. I have understood, that it was a case where a third party had made the offer to the witness, and it was decided, and, if so, it was without doubt properly decided, that the Crown could not be deprived of its wit- 310 ness by the act of a third party. If the learned lord means to say it is the law of Scotland, that a witness to whom a reward is promised for being a witness, is not disqualified to give evidence; I will meet him, not with my own authority, but with what is of much greater weight, the authority of some of the most eminent counsel at the Scots bar. An hon. and learned friend of mine, desirous of not trusting entirely to his own recollections of Scots criminal law, has been at the pains of obtaining an opinion, which I hold in my hand, signed by five eminent lawyers, whose names I do not think it necessary to mention.—[A cry of Name! name!]. The opinion, to which I allude, goes to state, that a person is disqualified from appearing as a witness, if he is adduced by the party who has promised him reward; and that the only case which seems to make against that opinion is the case of Home, mentioned in Burnet. But Burnet they considered as incorrect, and in their judgment of no authority—[The call to name was repeated]. I have no objection to read the signatures to this opinion, as it is the pleasure of the House that I should do so. They are these, George Cranstoun. [Hear! Hear!]]—I hope the learned lord is satisfied—] Hear! hear!] James Moncrief, John Archibald Murray, Henry Cockburn, and J. Rutherford.—[Hear! hear! from the ministerial side]. I do not perfectly understand the meaning of these cheers, but I suppose they relate to most of these gentlemen having been of counsel for the prisoner. But I will ask the hon. gentlemen opposite, if they really think this shakes the authority of their opinion? I will ask my hon. and Teamed friend opposite, the attorney-general, whether, if my learned friend near me (sir S. Romilly) or any other of my learned friends, had been counsel in a cause, and were asked their opinion on an abstract point of law, which had been involved in it, he would consider their opinion as the less entitled to credit? Sir, there is not one of us, but, as lawyers and as gentlemen, would disdain to put our names to an opinion which we did not in our consciences believe to be founded in law—[Hear! hear!]. On the authority of these five respectable names, therefore, and on that of the high court of justiciary, I maintain the disqualification of this witness. It is so laid down by every text-writer on the law of of Scotland—by Erskine—Hume—every 311 writer—except this passage in Burnet, who is of no authority, and it has been always so held and decided by the courts. When, therefore, they put the witness in the box, in what situation did they stand? They knew, when they called him as a witness, that, either he could not serve them, or, if he did serve them, he must Perjure himself in the first place.—[Hear! hear!] I repeat it; unless he denied that to have passed which had passed, he could not be examined in the cause; and they knew, therefore, that in order to be examined in the cause it was necessary he should first of all commit perjury. There is no way of getting out of this dilemma; I have examined it with my best attention: I have taxed my invention and my imagination to conjecture a way of escape, and I have found it impossible. If any answer to this should occur to any gentleman on the opposite side, I trust that he will have the goodness to state it to the House. The man was not examined; several other witnesses were examined; but they could prove nothing, and the learned lord threw up the case. The reason assigned for this by the lord advocate was, the unexpected turn which the evidence had taken; but what was that turn?—the fact of this man's evidence being inadmissible.
Now, Sir, as to the question how far it is allowable to hold out indemnities to witnesses. It is said, all that was done was to promise the witness protection and security. This is pretty well illustrated in a case in the State Trials in which Mr. Pollexfen and Serjeant Maynard were employed, names familiar, not only to all lawyers, but to all men acquainted with the history of England.' It is the case of a Mr. Tasborough and a Mrs. Price, who were tried for suborning a Mr. Dugdale, who was one of the witnesses in the plots of Titus Oates. Mr. Pollexfen, who was counsel for the prisoners, appears to have been driven into a corner, in the course of the trial, by some evidence which came out against him. The passage is curious. I have copied it, and I will read it to the House. Mr. Pollexfen says, "whether my answer will take with your lordship or no, I cannot tell, but the answer I would give is this: there are several things in that paper, as, amongst the rest, that he should fall under great dislike and danger,* See Howell's State Trials, Vol. 7, p. 914.312 and therefore was forced to hide and secure himself, for fear of those whom he should make his enemies by it; and that was terror enough to any man that should run into such a retraction. Therefore, now he must live when he has done this, and so we should apply the other part of the discourse; whatever money she had promised was to take of his fears of want. And so his coming there was to make good that part of the paper which says he must be protected, and maintained, and preserved, that he may see he hath a subsistence and provision for him if he did deserve it. And, my lord, it will be greatly distinguishing in our case, and turn much upon this point, with submission. If I give or offer money to any man to swear a falsehood or retract the truth, it is a very great crime, and if we are guilty of that, undoubtedly our crime is very bad; but in order to the bringing of truth to discovery, and to have a retraction, not of a truth but of a falsehood, and to preserve that witness from perishing, I may promise him protection and subsistence." Old serjeant Maynard interrupted him. "Then," says he, "you have found out a better way than the devil himself could have suggested to uphold subornation."
The lord chief justice says: "Upon my word, if that were a way that were allowable, then woe be to us! We should easily have all the witnesses tampered with by the temptation of 1,000l. reward." The learned lord seems to have acted on the apology of Mr. Pollexfen. But I have never before heard it seriously asserted, that it is allowable in any case, much less in a criminal case, for a party thus to deal with witnesses. Of this I am sure, that, if it is permitted to go abroad, as the decision of the House of Commons, that such things may be done, there is not a petty trafficker in accusations, in the office of any magistrate in any part of the kingdom, nor a petty-fogging attorney throughout the country, who is charged with a criminal prosecution, who will not feel himself justified by such a decision in protecting, maintaining and dealing with witnesses. They will not, indeed, attempt to induce them to say any thing but the truth. But they may give them to understand, that, if they do tell the truth, they shall be no losers by it [Hear! hear].
I have felt the question to be of such vital importance, that I should have con- 313 sidered myself guilty of a dereliction of my public duty, if I had not attended in my place to state my opinion fairly on the subject. To decline going into this investigation, would be attended with the most mischievous effects. It is my fortune to see many questions carried contrary to the opinion and advice of those with whom I have the honour to act. But we have in most cases this consolation, even in our defeat, that if our arguments do not at the time succeed, experience may produce that conviction which we have been unable to command, or an evil which cannot be entirely prevented, we may yet have had the power to mitigate. But in the present case there is no consolation. The public justice of the country is not to be trifled with. I feel most sincerely for the unfortunate gentlemen who have been engaged in this transaction. I feel for their families and for their friends. But every feeling must give way before the due administration of justice, upon which, above all other securities, depends the protection of all our rights and liberties: nor can I forget how many men there are in this country who also have families and friends, though perhaps humble ones, whose safety, whose liberties, and whose lives depend on the repression of such practices as these [Hear, hear!].
The learned gentleman said, in answer to a question which had been put to him, that Campbell had sent a detailed statement in writing of the facts, to which he afterwards deposed, to one of his learned friends, counsel with him for the prisoner. He contrived it in some ingenious way; he believed it was sent in a roll of tobacco. He wished to mention also, that at the consultation of all the counsel for the prisoner, which took place before the trial, there was but one who believed it possible that the thing could be true. It appeared to the rest impossible in its nature, and like many other stories to which the profession were accustomed, one under which (to use the technical phrase) they expected the witness would break down. It became a question whether the witness should he objected to on the ground of want of access. It was determined, however, in the first instance, to object to the witness on that ground, and, if they failed in that, to trust to the examination in initialibus. **The fact was, that Campbell threw his statement, rolled up in a roll of to-
Sir Archibald Colquhoun
said, he had never witnessed charges more completely ill-founded than those which were advanced in support of the motion before the House. He distinctly asserted, that there was not a shadow of foundation for the charges this night produced: he denied that they were charges—they scarcely deserved so grave an appellation, since they rested upon bare assertion or distorted proof. The hon. and learned member who spoke last had even gone beyond the noble lord with whom the motion originated, and had brought forward written opinions, upon which he intended to overthrow the established law of Scotland. He had termed the noble and learned lord (the lord advocate), and his coadjutors, unfortunate gentlemen, and had affected to lament an unlucky dereliction of their duty. He could confidently ask the hon. and learned gentleman whether he did not know that Mr. Drummond, one of the persons accused by Campbell, was a gentleman who was held in high estimation, who had met the approbation of every judge in the court of justiciary, and whose honour was as unsullied as his talents were splendid? Could the hon. and lenrned gentleman deny this fact? The deposition of Campbell contained numerous contradictions. He asserted that Mr. Drummond had offered him the place of a gauger; though at the time, he said Mr. Drummond was persuaded that his life was in danger, and that he could not remain in safety in the kingdom. The witness had said, that Mr. Drummond believed that he could not remain safely in Glasgow, or in any other place. The deposition thus bore internal evidence of its own falsehood. Campbell said, that Mr. Drummond had offered him the place of a ganger, and promised to write to lord Sidmouth on the subject; that at a subsequent interview, he (Campbell) asked Mr. Drummond whether he had written to lord Sidmouth? And he said that he had not, as Campbell had refused the place. He contended that this fact was inconsistent with the belief with which Mr. Drummond was impressed, that Campbell's life was in danger in any part of the kingdom.bacco, out of his window, to another prisoner, who was walking on the terrace before the windows of the rooms they were confined in; and that prisoner found means to send it to one of the counsel.315 The deposition of Campbell was a mixture of truth and falsehood, or rather composed of scanty leakings of truth, in an overflowing cup of falsehood. The hon. and learned gentleman who spoke last, and the noble and learned lord, were at issue upon a point of law; the latter contending that he was right in securing to a socius criminis freedom and impunity? For his own part he was completely convinced that the lord advocate had acted with perfect propriety. He had a right to promise a witness freedom from prosecution—he had a right also by law to send him out of the country at the public expense. This had been called a reward, but he denied that it could be properly called so. To send a person into exile to protect him from his enemies, was not reward. Was the banishment of a man from his home and his country, in these times, to be considered a boon and a benefit? What had been done was simply to put the witness in a situation to tell the whole truth, and nothing but the truth. The hon. and learned gentleman had brought forward the opinion of five very eminent lawyers (who, however, the House would recollect had been counsel for the prisoner) in order to prove that this was not legal according to the Scots law. He had the greatest respect for those gentlemen, and he thought they were entitled to the highest praise for the ingenious manner in which they had defended the prisoner, though he never witnessed such an assemblage of counsel to defend an individual accused. It was not a small part of the skill of these gentlemen, that, though the witness Campbell had been in communication with them, and had conveyed them information in a piece of tobacco of what he meant to say, they thought proper to object to him, on a pretence which gentlemen of their knowledge must have known was frivolous, and which was rejected by the court. As to the paper which was destroyed by sir William Rae, it was evident that he did not think that he had done any thing illegal, because he had proceeded in a fair and open manner. What would be the advantage of producing the record required by the noble lord (lord A. Hamilton)? Assuredly none but this—that the granting of the motion would convey an indirect stigma against the learned lord, and those who acted with him. They had not given up the cause on Account of the circumstance so much dwelt upon 316 that night, but because another part of the evidence failed; and it was not a little singular, that the counsel for the prisoner, among whom was the hon. and learned gentleman, at the time expressed their full approbation of the conduct of the lord advocate; though now the hon. and learned gentleman stepped forward, and could not find terms sufficiently forcible to express his disapprobation. His warmest applause, however, had been given at the time, when the ink was hardly dry, which, by his present statement, recorded the infamy of the learned lord and his coadjutors.
declared, that if it had been necessary to enter into a discussion respecting the intricacies of the law of Scotland, he should not have troubled the House; but he thought the question might be decided without much knowledge on that subject. If the question was for an address to remove the advocate depute from his office, the observations which had been made by the hon. and learned gentleman as to the credibility of the witness Campbell, would forcibly apply. But the question was to obtain information on this extraordinary case. It had often happened that a witness adduced by the crown, out of favour to the prisoners had, when produced in court, stated what he was not expected to state—sometimes truly, sometimes falsely. An instance of this sort had occurred on the occasion of the trials for treason in Lancashire and Cheshire in 1693, when much of the case for the Crown rested on the evidence of a man of the name of Lunt, who, when he was brought into court, stated directly the reverse of what he had formerly deposed, so that the counsel for the Crown had nothing to do but to fold up their briefs, and submit to a verdict of Not-guilty. But in that case did not the House call for an inquiry? On the second day after the next meeting of parliament, the House of Commons sent for witnesses on this subject, and after investigation, declared, that there was good ground for those trials. The present motion was for a similar inquiry, and in his opinion, on grounds equally strong. An hon. and learned gentleman had stated, that in the deposition of Campbell there was convincing evidence of falsehood. He (Mr. Wynn) had just looked at a copy of the trial, which was said to have been formed of the proof sheets of the shorthand writer, and it 317 contained no such thing as the hon. and learned gentleman asserted that it contained. The hon. and learned gentleman had represented to the House, that Campbell had stated in his deposition, that he was in danger of his life in any part of the kingdom, and that Mr. Drummond was impressed with this opinion, and yet, that Mr. Drummond had offered him a gauger's place. If Campbell had stated this, he would have been guilty of an inconsistency; but, in fact, he said no such thing. He said, according to the trial, that he had told Mr. Drummond that he would not change his name, and that he could not live in Glasgow, "or any other manufacturing place," but he said nothing of the rest of the kingdom; and there was no inconsistency between this statement and the offer to him of a place in the excise—which might be given him in some part unconnected with any of the manufactures, where his life would have been in no danger. He should not enter into the question of Scotch law, but there was a primâ facie case for inquiry, since on the deposition of the evidence for the Crown, the court unanimously determined that the case of the public prosecutor could not be supported. It had been said, that the evidence of sir W. Rac would only maintain the assertions of the lord advocate. It was his unfeigned desire that sir W. Rae should have an opportunity of defending himself. The conduct of the advocate depute seemed to him to be, at least, very imprudent. No justice of the peace in this country would, he apprehended, take the deposition of a witness without the presence of his clerk, or some other person. This case stood on the records, and could not be overthrown. The question was, whether the House would inquire—not into the conduct of a court of justice—but how the servants of the Crown had conducted themselves, so as to draw down the unanimous disapprobation of a court of justice. It was said that the persons aggrieved might have actions against the lord advocate. It was right individuals should have compensation for individual losses,—but the House were guardians of the public, and had a right and a duty to see that public functions were not abused. He trusted, therefore, that from what had appeared in the course of the discussion, the House would be unanimous in the opinion that there existed a sufficient ground for inquiry.
did not think any thing had transpired that ought to induce the House to enter into any proceedings on the subject. Notwithstanding all that had been said, and the industry displayed to bring the conduct of the learned lord and his colleagues into discredit, there did not appear to him that there were any sufficient grounds of inquiry made out. He saw nothing to warrant any motion on the case; and he trusted the House would agree with him in thinking that there was nothing so novel in the circumstances of the case before them, as to warrant a call for the record. Did they wish to look into it to see if the officer of the Crown had been authorized in his proceedings? He apprehended there could be nothing in it to show that he had not been justified in instituting this prosecution. This must be the conviction of every fair and unbiassed mind; it was established by the proceedings on the bench, and indeed the whole course of the proceedings went to prove the fact that a conspiracy of an extended nature did exist in the neighbourhood of Glasgow, where persons were bound together by secret oaths. Therefore, unless the purpose was either to punish Campbell for perjury, or to prosecute the lord advocate for the important steps he had taken, there could be no reason whatever for calling for the record. Campbell's evidence had been considered by the court absolutely so incredible, that it could not be entertained in any court of law whatever.—And because this man's evidence was considered totally tin-worthy of credence in a court of justice, was it to be deemed worthy of credit in parliament, and made use of there because it could be used no where else? Then, if Campbell's evidence was not to be believed, what evidence did the noble lord, and those who supported the noble lord's motion, think the record would furnish? He apprehended that the only point that could be brought against him was that which admitted of no evidence in proof—the conversation between him and the officer, when no other person was present.—Therefore, the question of perjury was only the imputing of an offence which was placed beyond the reach of a tribunal below. To suppose that the lord advocate was making any offer not fully justified by morality and law was absurd; for so far from concealment, there was nothing in the transaction but what was the very reverse. No inference contrary 319 to this could be drawn from the observations of Sibbald, or sir W. Rae, as the former would be no evidence against Campbell, and though the latter had thought proper to destroy this paper, it was avowed they went with full authority to make the offer of protection. How could the House examine Campbell? Would they have the vitiated testimony of such a man, in order to put Mr. Drummond on his trial, would they take the evidence of such a man against such a character as Mr. Drummond? He apprehended this was a proceeding that parliament never would sanction under any circumstances. The evidence of Campbell must be regarded as suspicious even from the very means he had recourse to in communicating it; and there was an evident conspiracy between him and those that carried the tobacco, not only to defeat the officers of the Crown, but the ends of justice. The lord advocate or his depute were not in situations of life to lead them to commit subornation of perjury; but it was evident that the prisoners had inducements to commit that crime. If the House lent themselves to this sort of trick, and it was too much the fashion to get up cases of this nature—he must contend that the testimony of individuals would soon not be considered credible on their oaths. On the whole, therefore, he felt that this was not a case that the House could be called upon to inquire into, and he trusted that they would concur with him in opinion, that there was no reasonable motive for agreeing to the motion.
§ Sir Samuel Romilly
said, that after the able, eloquent, and unanswerable speech of his hon. and learned friend, he should have thought it unnecessary to offer himself to the attention of the House, but for the extraordinary confidence with which the noble lord had defended the measures in question. The noble lord had talked of the record as if it had been on the table; but till the record was produced, the noble lord was totally unfit to argue on the subject. The noble lord had contended, that unless the facts were manifestly sufficient to warrant condemnation, there should be no inquiry; whereas the fact was, it became necessary to inquire, because they did not know the facts. The learned lord had argued against the production of the record as unnecessary and improper, because it would be interfering with the courts of justice; and had ob- 320 served that if any thought themselves aggrieved by his conduct, they could bring an action in a court of law: and therefore, that to bring the record before the House would be directly interfering with this right; but what lawyer in that House could maintain such a position? Besides, what actions could be brought against the lord advocate? None certainly for injury done by the production of Campbell as a witness; for he had been rejected. He had said also, that when Mr. Adam moved for the record of the trial of Messrs. Muir and Palmer, the motion was refused. But that was a motion which called in question the conduct of the court of justiciary, whereas there were several circumstances attending this extraordinary case, which in the opinion of the learned judges who presided demanded investigation. It had been asked why the evidence of sir W. Rae had not been called for? This gentleman's evidence would have been of great importance, and was repeatedly called for by Mr. Jeffrey, but was resisted because the witness's (Campbell's) evidence had been rejected. Lord Gillies spoke to the inadmissibility of the witness Campbell (inadmissibility it must be remarked, not on account of incredibility, but on account of the misconduct of the prosecutor), and remarked that the court was sitting to try the case of M'Kinley—that it would be desirable that the evidence of the witness Campbell should be investigated farther—but that was not the subject of the trial. Now this subject was to be investigated in two ways—first, by a trial of Campbell for perjury, which had never been thought of How then could they investigate the subject with more dignity, propriety, and certainty than in that House? The whole of the noble lord's argument tended to show that Campbell's evidence was not credible; but the truth was, what perhaps the noble lord was not aware of, that this man's evidence must be credited till his assertions had been disproved. He would say, although it might be ridiculed, as they had attempted to ridicule the argument of his hon. and learned friend—he spoke from public motives, and did not regard such attempts—he would say, notwithstanding the confidence of the learned lord, that when inquiry should take place, it would require better authority than his to show that Campbell's evidence was incredible. The noble lord‡321 had said, that no prosecutions were instituted for perjury, because two witnesses were necessary to convict a person of that offence, and so many could not be brought forward; but the learned lord (the lord advocate) had said no such thing, and the statement seemed to be altogether without confirmation. With respect to Campbell, too, an hon. and learned gentleman's reasoning seemed to be altogether unwarranted and inconclusive. Campbell, it appeared, had said, that he could not return to Glasgow, for, if he did he should stand in peril of his life. And from this the hon. and learned gentleman chose to infer that it was clear he could not take an excise place, and that none could have been offered. He (Sir S. Romilly) dared to say the hon. and learned gentleman had never heard of a Scotchman having a place in the excise out of Scotland, in Cornwall for instance, or elsewhere, far enough removed from any dangers at Glasgow? He should now proceed to make some remarks on what had fallen from the learned lord (the lord advocate) himself. The learned lord had told the House, that the trial of M'Kinley proved the fact of unlawful oaths having been administered, because the verdict against him was "not proven." And so the learned lord had presumed, that the House of Commons, in its ignorance of Scotch law, would be induced to believe that "not proven," meant "proved I" He had indeed asserted, that by the expression" not proven," the corpus delicti was considered to be proved; and that nothing was wanting but the bringing home of the guilt to the panel. But the House must see clearly what the verdict of not proven implied, that in the opinion of the court the party was neither guilty nor innocent: that they considered there was no evidence to establish the facts alleged. It was clearly laid down in all the great law writers of Scotland, in Hume, Erskine, and Mackenzie, that "not proven" amounted to an acquittal: not indeed an honourable acquittal, but an absolute dismissal from the charge brought forward: that it was equivalent to the "non liquet" of the Roman law; and yet the learned lord did not hesitate to say, that all the unlawful oaths were fully proved, by the magical words of "not proven." The learned lord had next endeavoured to make a great deal of the story of the communication between the prisoner, Campbell, and the other wit- 322 nesses; but it was the duty of the noble lord to have facilitated the communication between prisoners and witnesses. By the law of Scotland (which differed from the law of England in this respect), the prisoner was entitled to a list of all the witnesses) an advantage permitted by the law of England only in cases of high treason): he was allowed also to communicate with them, that he might know beforehand what facts' were to be alleged against him. The noble lord talked of "getting up" cases for political purposes. If by that expression the noble lord meant that this was a case "got up" for a particular purpose, he (sir S. Romilly) was sure that the country would not concur in such an opinion, even if the House should. If the learned lord affirmed that this was not a case for inquiry, nor for laying the record before the House, lest that inquiry should be made, he (sir S. Romilly) must affirm that this was not a case so "got up," but one loudly calling for explanation on the simple statement of its facts. It was important to the country that the administration of criminal justice should be pure and unsuspected, and what was this case in which all the suggestions of the noble lord went to stifle all inquiry? It was a case which the attorney-general himself had declared he could not defend: his hon. and learned friend had said, God forbid that he should go into prisons to communicate with prisoners before they were publicly brought to trial! But the noble lord had said, that the advocate-general of Scotland was not an officer such as the attorney-general of England. The lord advocate was a magistrate, had power to commit, was connected with the police, and had it more especially within his province to protect prisoners, and to see that no evidence should be adduced against them influenced either by fear or hope. In this respect, the law of England differed from that of Scotland. The law of England did not begin by examining a witness as to his fears or hopes; but in Scotland the witnesses always went through that ordeal first; they were not only questioned as to any pecuniary interest, but as to any benefit whatever they might expect. Let the House now see if it were possible in the situation in which that man Campbell, was produced, that any fair evidence could be extracted from him. Was it nothing to be told that six witnesses would be brought against him, and that he would be in danger 323 of being hanged? The man said, "If I do give the evidence you require of me, I shall he perjured:" but when he considered that these six men were also to be influenced, that conscious innocence might be of no avail, that on one side a shameful death might await him, and on the other a fortune beyond his circumstances and previous situation in life, could it be supposed that his testimony would be unbiassed, or that the House could deem this a case they ought not to inquire into? The noble lord had said it would be too much to call on such a person as Mr. Home Drummond to answer the testimony of such a witness; but he (sir S. Romilly) said, he would, when justice required it, call on Mr. Drummond, or even the noble lord himself—he would say that the noble lord was wholly unfit for a judicial inquiry, if he was ignorant, that no man, be he who he would, whether Mr. H. Drummond or the noble lord him-self, could avoid being bound on oath to answer when called on for the purposes of justice. There was no one so high in this country as to be screened from the obligation of answering to such a charge. A great disservice would be done to the characters of those gentlemen, whose testimony might be brought forward to outweigh that of Campbell's, if on the suggestion of the noble lord the House proceeded to stifle all inquiry; the prevention of this inquiry might subject them to imputations all their lives; and he therefore trusted that on this ground at least, if on no other, the House would not refuse that examination so necessary to their vindication and credit.
The Lord Advocate,
in answer to the allegation of the offer of money, or a place in the excise, to be given to Campbell, affirmed, that he had stated that no such offer had been made, and that it had been impossible to make it. He had never said that entering on the inquiry would prevent an action being brought against himself, but that it would be unnecessary to go into the inquiry while such actions could be brought. As to the matter of access, it had been allowed by the court that all facility had been afforded the prisoners.
§ Mr. J. P. Grant
stated, that he had understood it had been said in his absence from the House, that the counsel for the prisoners had complimented the public prosecutor. He could say for himself, that he had heard no such compliment; 324 and he had been informed by Mr. Jeffrey, that the account in the papers respecting himself was erroneous. Mr. Jeffrey meant to pay a compliment, not to the learned lord, but to the court.
Mr. V. Fitzgerald
quoted the opinion of lord Gillies as to the disqualification of Campbell. That learned judge had stated Campbell to be disqualified in every point of view, and lord Hermand had said, that Campbell could not be received as a witness, whether true or not. The learned lord had not said that the words of the verdict, "not proven," had proved the truth of the facts, but only that there was a wide difference betwixt the verdict of not proven and not guilty. The lord advocate performed the duty of grand inquest in Scotland, and his functions differed materially from those of the attorney general in this country. Upon the evidence of such a man as Campbell, no man of honour ought to be put upon his trial, and he therefore felt it his duty to give his negative to the motion.
§ Sir. S. Romilly
said, that he had quoted the words of lord Gillies, declaring the inadmissibility of Campbell's evidence, from the published report of the trial of M'Kinley, which, however, might be different from the report in the possession of the lord advocate, and which he understood was different from every other. The report in the possession of the learned lord had not indeed been yet published, but he was told that the learned lord had received a proof copy of it from Edinburgh.
The Lord Advocate
said, that the report from which he had quoted was that of the authorized notes taken of the trial; and that the reason which occasioned the delay of that publication was simply this—that although the note-taker had sent copies of his notes to the counsel for the prisoner, for their revision, so far back as August last, they had not returned them corrected until January last, while in the interim an unauthorized report of the trial had been widely circulated. But this report was now published, and he was authorized to say that the judges had revised their own speeches.
§ Mr. J. P. Grant
hoped he would be allowed to explain the reason which had delayed the return of the notes alluded to by the learned lord. The fact was, that the notes of the reporter alluded to were so very clumsy and incorrect as to be 325 scarcely intelligible, and that it required a great deal of trouble on the part of his learned friends to put their speeches into a correct shape.
The Attorney General
thought it necessary to correct an expression that had been imputed to him, as if he had said that he could not defend the conduct of the learned lord. After reading the case through with great attention, he could not see it in the light that the learned gentleman had done; but he thought he clearly saw in the account of that Campbell, the artful story of a cunning and designing man, who knew how to disqualify himself where he did not choose to give evidence. His learned friend had stated, that Mr. Home Drummond and the noble lord would be equally liable with any one else to give their testimony where the justice of a case required it. He knew it well; but he also knew that it did not follow, because a witness stated upon oath transactions which, if true, constituted an attack upon the character of an individual, that that individual should be the subject of inquiry in the House, or in any other court. Before the House agreed to this, they must conclude, on a consideration of all the circumstances, that there was ground for a serious charge against the lord advocate; because the question was not, whether the House should have the record on the table, that they might there read what they knew equally well from other quarters; but truly, whether there was matter to satisfy them that there was ground of charge against the lord advocate. A comparison had been made between the office he so unworthily held, and that filled by the lord advocate; but all the differences between them had not been fully stated. With respect to inquiries made previous to trial, and functions that formed a duty of police, they certainly differed very materially. But when the learned gentleman, deprecating a communication between the Crown and its witnesses, had represented him to say, that he would not on any account communicate with his witnesses, the learned gentleman had fallen into an error, for he (the attorney general) must communicate with his witnesses—must be informed what they had to allege—or he could not know with safety when to prosecute or when to abstain. He had not said, that he never communicated with witnesses: he had only said he never communicated personally; other communication he must have, or he 326 should never know how to proceed.—As to the imputation cast on the learned lord, he should have given the same advice as the learned lord had done. If he had been told that a witness could not appear, lest his life, or that of his wife should be in danger—whether right or wrong, others might determine—but he should certainly have considered it his duty to say, "assure him of protection." This was not tampering with witnesses. It was doing a duty which the public prosecutor owed to public justice. He knew it was a very convenient doctrine to some persons in that House, that the obtaining information was a corruption of the sources of justice, and that to assure a witness protection was tampering with him; but when this was done fairly and honestly, he would maintain it was not tampering. The charge of the noble lord did not put it as having been done corruptly, but merely thus—"You know that by the law of Scotland the preliminary to examining a witness is to ascertain that he is not influenced by fear or promises; knowing this you promise a reward, and then by putting the witness in the box expose him to the perilous situation of becoming guilty of perjury." If it were clearly made out that a positive promise had been made to the witness, he should say that it was putting him to this perilous situation; but a mere promise of protection amounted to no such thing. The House were told, that the conduct of the law officers in Scotland was contrary to the import of a question put to every witness in Scotland, "Have you received any reward or promise of reward?" This was a competent question, it was true; but what was a reward or promise of reward? It was an old and a just maxim in law "dolus versatur in generalibus." Was the promise of protection to a witness within the comprehension of those terms? If it was—if that was the law of Scotland—he would say that the law of Scotland respecting evidence was a great protector of crimes.—He protested against the motion, because Campbell was an artful man according to his own evidence. He told Mr. Home Drummond that he was afraid of his life, and that it was necessary for the safety of himself and family that they should go abroad. He said in evidence—"but I was not afraid of my life. Mr. Home Drummond seemed to think that I was, and I continued to allow him to think so. I did not tell him that I was 327 in danger of my life." His learned friend on the other side (sir S. Romilly) had asked, why Campbell should not have been indicted for perjury? He would say that he could not be indicted, so artfully had he contrived to disqualify himself from being a witness. He would affirm, that Protection, according to the law of Scotand, was not a promise of reward. The promise of an exciseman's place, the whole of the conversation respecting that, and every subsequent conversation till the moment in which Campbell gave evidence in court, were represented to have taken place between Campbell and Mr. Drummond alone. If Mr. Drummond was the respectable man he was said to be (and he had every reason to believe he was), still he would be but one witness against one witness; although his testimony were equal to that of ten men such as Campbell, still he could be but Drummond against Campbell. Campbell could not, therefore, be indicted for perjury. He again repeated, that he considered Campbell as a man who had determined to disqualify himself from being a witness. His learned friend must allow him to view the motion before the House, not as a motion for inquiry, but for censure. Voting to have the record put on the table would be voting that there was matter of impeachment against the lord advocate. Although he would scorn to defend a case such as the noble mover viewed this case, yet viewing the case as he did, very differently from the noble lord, he did defend it.
§ Mr. Finlay
said, he had listened with great attention to all that had been said on both sides of the House, and had endeavoured to form an impartial opinion on the subject. He would ask, in reference to Mr. Drummond's conversations with Campbell, was it usual to ask a person whether he would choose to be examined or not? That Mr. Drummond had a right to afford him protection he would admit; but a removal to some place abroad seemed to him to be something more than mere protection, and to be therefore unwarrantable. For the sake of inquiry, he must vote for the production of the record. He agreed with the learned lord advocate, that the state of the country had been alarming and dangerous; but, agreeing with him in this opinion, he would ask, how it happened that there had been no trial for two months after this period of alarm and 328 danger, and no conviction at all obtained?
§ Lord A. Hamilton
said, that he was so perfectly satisfied with the whole course and tenor of the debate, to establish his own views of the transaction which had been the subject of it, that he did not wish to detain the House with any length of reply. He would merely make a statement of a few facts, or, in corroboration of facts. First, he must observe as a fact, that Mr. Home Drummond sat in the court while Campbell was giving his testimony, and never offered any evidence or expressed any desire to offer evidence, that any one circumstance stated by Campbell was false. He never said that Campbell was perjured, and he did not believe he had ever considered him perjured. Why was perjury now insinuated for the first time? Had the learned lord in Scotland ever held out as a reason for not prosecuting Campbell for perjury, that he could not procure a sufficient number of witnesses to convict him? He had never heard it alleged while in that country, that the evidence of Campbell was false and perjured, and he was convinced that it had never been considered so, because, if it had, the learned lord would not, from the trial in July up to this hour, have allowed himself and his colleagues to have been the subject of obloquy and reproach throughout Scotland. If the House should resist farther inquiry, he was sorry to say that their vote could not clear the characters implicated, or give satisfaction to the country. Campbell, when giving the evidence in question, said, "I stand before persons who can contradict me if I speak falsehood." Was he contradicted? No. The noble lord (Castlereagh) had said, and many of his defenders that night had repeated it, that every thing material in the charge had taken place in the presence only of Campbell the witness and Mr. Home Drummond, and that therefore it was that no prosecution for perjury had been instituted. That he denied, and would read from the evidence its contradiction. He then read from the trial—Campbell farther deposes, "that the sheriff, and, as he believes, the sheriff substitute, the solicitor-general, the procurator-fiscal of Edinburgh, as he understood, and a clerk came into the room." No less than five persons. Now, what passed at that meeting? The most important and most criminating fact of all It was at that very meeting that sir W. Rae, sheriff of Edinburgh, burnt the 329 agreement which had been reduced to writing, and declared that if that agreement were signed and in effect, Campbell could not take the purgation oath without being perjured. Was there no witness, then, to prove perjury on Campbell, if perjury had been committed? The learned lord had a stronger and better reason against instituting a prosecution for perjury. Such a prosecution would elicit the real truth, and fix guilt where due. And therefore it was, that he (lord A. H.) felt justified in declaring his firm belief, that disagreeable as his motion and this debate had been to him, the learned lord would dread much more any prosecution of Campbell for perjury, though instituted and conducted by himself. It seemed but fair, however, that Mr. Home Drummond, whose name and character had been so much implicated in this matter, should be allowed the benefit of such a prosecution, if he should wish it, even though it should not suit the case of the lord advocate. The learned lord had admitted great part of his former statement. He was yet to learn what part of the law of Scotland allowed what he called, and must still call, tampering with the witness Campbell; and the House must observe, that so much of this case had been admitted, so little contradicted, and nothing of it disproved, as to render some inquiry indispensable, otherwise the lord advocate might return to Scotland and repeat the same conduct, and give to other inferior courts the same bad example under the apparent sanction of that House. He would only add, that if the vote of the House interposed between the case he had stated, and the inquiry which it loudly called for, that vote would do very little credit either to the learned lord or to this House.
§ The House divided: Ayes, 71; Noes, 136.
|List of the Minority.|
|Abereromby, J.||Calvert, Nic.|
|Althorp, Visct.||Campbell, hon. J. F.|
|Anson, sir Geo.||Carter, John|
|Atherley, Arthur||Curwen, J. C.|
|Barnett, Jas.||Douglas, hon. F. S.|
|Bennet, hon. H. G.||Duncannon, visct.|
|Birch, Jos.||Finlay, K.|
|Brand, hon. Thos.||Fazakerly, N.|
|Brougham, Henry||Fitzgerald, lord W.|
|Byng, Geo.||Fitzroy, lord J.|
|Browne, Dom.||Folkestone, visct.|
|Burroughs, sir W.||Fremantle, W.|
|Calcraft, J.||Gordon, Rob.|
|Calvert, Chas.||Grenfell, Pascoe|
|Guise, sir W. B.||Philips, George|
|Gurney, Hudson||Ponsonby, hon. F. C.|
|Heron, sir Robt.||Phillimore, Dr.|
|Howard, lord H.||Ridley, sir. M. W.|
|Howard, hon. W.||Romilly, sir S.|
|Hurst, Rob.||Russell, R. Greenhill|
|Jervoise, Geo. P.||Scudamore, R.|
|Leader, Wm.||Sharp, Richard|
|Lyster, Richard||Smith, John|
|Lyttelton, hon. W.||Smith, W.|
|Methuen, Paul||Smith, Robert|
|Macdonald, Jas.||Smyth, J. H.|
|Mackintosh, sir J.||Tavistock, marquis|
|Morpeth, visct.||Tierney, rt. hon. G.|
|Markham, adm.||Waldegrave, hon. W.|
|Martin, John||Warre, J. A.|
|Mildmay, sir H. J.||Webb, Edward|
|Milton, visct.||Wilkins, Walter|
|Monck, sir C.||Wynn, C. W.|
|North, Dudley||Wood, alderman|
|Ord, Wm.||Hamilton, lord A.|
|Ossulston, lord||Grant, J. P.|