Star. — London, England, 1818-02-11 00:00:00

, s ate involved an attention to the internal state e ountee, and a superintendence of its • police. y," L ord " Advocate was almost dilly applied to by e str etes for advice on subjects relative to die-pre aeon of the public peace ; and the person to whom N a jesty's Ministers look for information on the 1 state of Scotland, is the King's Advocate. t he res pect then there was a great distinction be , the duties of the Lord Advocate as compared lose of the Attorney-General. In short, the Advocate in Scotland :Weald take every mea relative to the state of Scotland which it was recent for the Secretary of State to take in Eng which, if the Attorney General were to do, he be usurping the Secretary of State's powers. e r espect to the institution of the criminal prose • iu Scotland the Lord Advocate was in fact the Id Jury of that country. Proceedings there in ' cases were commenced by what is called a ; a process taken before the Sheriff, his e or the Procurator-Fiscal. When a precog was taken it was transmitted directly to the Advocate, who was to pass his opinion ou .the 'ty of the proceedings under it ; and if upon reining it he saw that the witnesses had not been ly examined, or that the necessary witnesses not been examined, he was to direct that the :dings should be amended or renewed. These an of the duties of the Lord Advocate. The p . 4 tCt of w hat he had done in the present instance 'es examining witnesses under confinement. That, a pr oceeding was justifiable he would prove I good precedents in good times. In 17$8.nne 'Lord President Forbes (and there was a similar ease under the Lord President Dundas), menvic as took place on confessions taken in a public jail the Lord Advocate and the other Law Officers. is shaved that at least there yeas nothing unusual sending Gentlemen to take the examination of tresses, provided that examination was not impro rly conducted.—t Hear, hear, hear, front the Oppo sa.)—The Lord Advocate had a peculiar interest treading to the proceedings on the precognitions, if they were not properly conducted he was liable rosecution. It was settled in the time of the Lord lent Dundas, that if the Lord Advocate pro in any criminal prosecution on improper s, and without proper evidence, he should be .ally liable for any Injury suffered by the per subjected to the prosecution. With respect to, had been done in the present case, he would not ,ate his own acts or responsibility from those of Home Drummond. That Gentleman, who filled dice which he held with such distinguished abi had, in the case of Campbell, been oblig m to ens a very irksome duty in collecting i a from that person—a duty which he (the Lord ate) regretted to be obliged to depute or assign .ty individual ; but still it was a duty which cook' have been omitted. The prisoners were appre - Glasgow, on the opinion of several most ale persons at Glasgow, One and all of the ems so apprehended, gave the information on ich the indictment against M‘Kinlay had been laid ; having brought him to trial on such grounds, _ Lord Advoc ate)was responsible before the Court. the persons arrested referred to Campbell, as the who could give most important information. In obtain that information on which the neces. sures for the preservation of the public peace . founded, he immediately felt it his duty to c Mr. Drummond to go to the Castle, and ascer . from Campbell whether he would be induced to a the important information in consideration of a , rise of pardon ? When this was done, there was . whatever of using Campbell as a witness— , hear). Mr. Drummond had no authority to to Campbell any situation whatever with the of inducing him to give information ; and he authorised to deny that Mr. Drummond ever any such offer. In stating Mr. Drummond's • of what passed between him and Campbell, aware that it was opposing the statement of Drummond, not upon oath, to that of Campbell nth ; but he was willing that it should rest on anent of Mr. Drummond against the oath of eL As to the deposition read by the Noble whose motion was before the House, it was that Campbell had made it to disqualify him from appearing as a witness. Campbell had a t interest in this disqualification, for thereby, it might tend to the acquittal of M'Kinlay ; ndly, it would prevent any of that danger with :h at one time he said his life was threatened.— . great charge was, that he should have possessed mself of what was likely to be the sum of Camp- J's evidence. If to do so were a crime, he would A an Hon. and Learned Gentleman opposite to say Tether he and two of his friends were not acquaint with the evidence which was to be given, bi ell—(Eher, hear, hear)? He held in his hand statement of the proceedings on the trial which this, in which Mr. Jeffery, the Counsel for prisoner, said he would be able step by step corroborate the whole evidence of Campbelle-,- • he would wish the Hon. and Learned Gentle opposite to say,, whether he and his friends had rewarded Campbell for furnishing them with t evidence ?—( The Leaned Lord parsed sonic time a reply--:tsene 11042 i walk.) Campbell when ask • information, said, that he dared not give it, be _if he did, his life would be endangered. 8 , ea safe passers t o the Continent was - offered to t?, to secure his life against the danger of giving, to:Dutton ; and this offer was no sooner made than said, that if it were fulfilled, be would not only ' information, but eviden c e upo n t h e trial. Pre nu t o reeking this offer he had consulted with the Officen of the Crown on the propriety of making and they were unanimously of opinion that it 4 their d uty to protect Campbell against the dan of givin g information or evidence, and to pro bin in that way which he thought would be st avail a bl e . The prisoner soon after expressed .tech apprehension on account of his wife, who was ea near her time of confinement, and applied for ' money to relieve her. This, and every other nation for money, was positively refused ; but z Which h uman i ty di ctated was done, and the nort et's wife was ordered to be conveyed to Edin , and this was done openly, for the Magis tes of Glasg ow were directed to, take a place for to a stage coach. With respect to the promises to Campbell, whether they were legal or not, e! were made on a principle of strict duty. If h e the , re teem illega l , the very last thing which he would have done would have been to send for Sr S. Hate, and to have made the promises its his pre sence, when they might have been made with the utmost secrecy, so as never to rise in judgment against him. When the thing could have been done secretly, is it conceivable that if there was any notion of illegality in the proceiiiiing, he should have chosen that it should take place in a way to place it ors the records of the Court ? (The Learned Lord then read from a' report of the trial an account of what took place be fore the Sheriff, Sir William Rae). It appeared that the Sheriff burned the first deposition. This shews that the Sheriff, at least, did not think the offer of protection illegal, for if he did, the very last act which he ought tothave done was to burn the deposi- , tion. Two promises of protection were made to! Campbell ; the one to give him the means of going to the Continent, the other to give him the means of going to some of the colonies. In the first deposition the first promise was made. If it was illegal, the second was equally so ; and the deposition taken un der the second promise and recorded, was as illegal as that taken under the first, which was destroyed. So much for the facts. Now for the point of law. The Noble Lord truly stated, that when the initiatory question was put to the witness—" Do you bear any malice to the prisoner ?" if the answer was in the af firmative, the Court would proceed to inquire what was the nature of the malice, and whether it was such es would affect the evidence of the witness. The case was the same with the second initiatory question— " Have you been told what to say ?" The third ques tion was, " Has any reward been offered to you for bearing testimony in this case?" And if the answer was in the affirmative, then it was to be ascertained whether the nature of the reward was such as to affect the testimony of the witness—( Hear, hew ) In the present case, the qnestiou arose on this third point. 11 the principle contended for on the <ether aide were true, no socius criminis could even be ad- Mined as a witness. And yet nothing was more clearly established than that the evidence of socius crintiais, who came forward as a witness under a gift of pardon, was good evidence. He referred to a pas sage in the Treatise of Burnet, page 416, and to the case of Home, v.—, Bth December, 1799, in which it was decided, that " a promise of a certain reward to a witness, if he would speak out, does not amount to a disqualification of the witness." The Noble Lori had been completely misinformed as to the Law of Scotland on this subject. In Lord Melville's trial a ,question arose on the admissibility of the testimony 'of Mr. Trotter, on the ground of its being given un der promise of reward, and the opinion of the Twelve Judges was taken upon it. The third part of that npiwon distinctly stated that no promise of reward for !peaking " the full truth," amounted to a disqualifica tion of a. witness. This was not merely the Law of Scotland ; it was one of the great principles of the Constitutional Law of the Country. But the Noble Lord contended that the prosecutor ought not to, examine before hand any witness at all. ((Hear.) — He would disprove this by an unexceptionable autho rity—no less than the authority of this }louse in the case of Lord Melville, whpre Mr. Trotter was called before the Committee of Managers, and questioned touchin i 7 the evidence which he was likely to give on the tri m These were authorities which he hoped the House would think amply justified his conduct is tha' case of Campbell, and which more thazTjustified it, by pointing out to him that conduct as his duty. (Hear, hear, hear.) One part of the deposition of Campbell was read by the Noble Lord in which it was expressly stated, that " nothing had been said to' him to instruct him in the evidence which he should give on the trial." On the whole, therefore, he trusted that he had made out to the satisfaction of the House, that the private examination was no objection to the witness, and if no objection to the witness, that there was no illegality on the part of those who advised or conducted that examination.—(Hear, hear.)—The Learned Lord then referred to the de claration made by Campbell, " that he had been treated by all the Counsel for the Crown, but especially by the Lord Advocate, with the utmost kindness and humanity." The Noble Lord (A. Hamilton) had stated that the ob ject was to keep the private examination secret. Se cret! Was the taking of the deposition before Sir Wm. Rae, the Sheriff, like a wish to keep it secret?— On the contrary, did it not manifest an intention that to give it publicity was the sole object of having it before the Sheriff, because he felt that by doing it so, and by having the whole entered upon the Records in the Crown Office, he permanently fixed the re sponsibility of the whole transaction upon himself, is order that if there were blame, it might be attached to the proper person ? It had been said, too, that Campbell was brought forward by him for the pur• pose of hanging M'Kinlay. The disproof of this was to the circumstance, that Campbell was not called apon as a witness until that stage of the trial when MiCinlay was out of jeopardy. On the whole, there fore, he thought no ground was made out for the -present motion. In addition to all other reasons against:it, by bringing the question before' Parlia ment, the relief to which the person professing to be aggrieved was entitled before a Court of Justice was interfered with. He therefore trusted that the House would now follow the precedent established in its decision in 1794, on the motion to produce the re cords of the trial of Palmer and others, where, al though above twenty objections to the trial were made, the House decided that the records should not be produced—(Hear, hear). Mr: J. P. GRANT said that it would have given him much pleasure if the Noble Lord had succeeded in removing the impression which must be pro duced by the evidence of Campbell. He approach ed the consideration of this question with much pain, because it involved the conduct of persons for whom he was disposed on many accounts to entertain the highest respect. He would concede in the pre sent case that the person accused was the most guilty of.mankind, still that would not weigh one feather ' in the balance; for the interest concerned was that 1 of the public at large, and the subject was the admi nistration of justice in a question concerning the rights and liberties of the people—(Hear, hear.) He denied that a Parliameatary discussion of this quit- 1 ' tion interfered with the remedy which any of the ' . persons concerned might have in a Court of Justice. '!Parliament was entrusted with the guardianship of f . the liberties of the people—with the jealous observ-, ance of the adrainistration of justice—with above • all, the jealous observance of his Majesty's Mini's ', tcrs—and y:: was it to be said, that the present was one in w!licli Parliament ought not to interfere— that persons might have their private actions at law, and Parliament was not called upon to do any , thing in the matter? The charge preferred against the' Law Officers of the Grown in Scotland was two-fold. -Ist, That of t:srapeting with witne'ces to influence theis testimony. tedly, That of calling upon a wit ness, who before his testimony could be received must answer a certain question in the negative, which they knew he could not answer in the negative with out perjury —{hear, dean)—He did not mean to say these charges were proved ; but these were the charges. They are made on authority which must be received in this House: they were recorded in the Justiciary Court, and were uncontroverted by any thing except the statement of the Learned Lord. It was therefore but fair to the Learned Lord—it was but fair to the House--it was but fair to the - - - it ion of the m a j e sty's 1 state was respect. the duo ,• those of . Advoca relative ti t for ; which, if old be new eh respect tc -mu in Stoll .d Jury of ~vial cases . ..tion ; Age, or the ;on was take Advocau .tatty of ti mining it ly exam d not been i .ceedings sh re part of tl ject of what his examb ch a Meet' .ro good pre Lord Pros de mule; took pia' di: Lord A • shelved t sending G messes, pro 'y conduct attending if they we prosecutim ident Du ded in at . ads, and ;may lia subjected r..t had bee; ~orate his o• r. Home Di e office whit r. had, in t norm a ver from tha drocate) reg any individ :hive been .ded at Gla ctable pe; cons so ap 'di the inch; for having (the Lord Ad the person who coul , er to obtain , measures be found -ect Mr. Drs '7. from Can re the impo anise of pa ilea whate car, hear). rr to Cam or of indt authorise ale any suc count of wl was aware r. Drummc roa oath ; t statement pbell. ord, whose ain that Co 1 from ap in intere; .st, it mig condly, it ich at on e great ' 'mself of eviden sk an Hon. ;tether he with the pbell statement • ed this, • prisoner ; corrobora 'ow he wo• aPposi , . reward at evident • rePIY — • informat if he c is a safe p to secs ormanon said, tha ye inform; rain to m a , w Officer; .; and the , as their du T of givii rt him i n ant availat .uch a p pre len near he • ..e money .lication which • er l s gh, and of Gla rit a st ag .• • e to Ca l r et were rr, d th0.T.1.1 on of pub. should ' lic justice in the country that the motion be agreed to, and that so the House might be enabled to examine into the truth of these charges. It was the duty of the House to ascertain its truth. He, Campbell, had taken pains to furnish the House with the particular circumstances, and the names of the Gentlemen present ; and it' his story were not true, he would put it to any person to sly where he had ever seen a single case in which perjury might be so' clearly established ?—(hear, hear.)—Months kul now elapsed since the trial, and circumstances were im puted to the Learned Gentleman which it could not be supposed would have remained an hour uncontra dieted. The Learned Lord had nothing to do but to try the man for perjury', and by having him convicted, to rescue his character, as well as that of the whole profession to which he had the honour to belong.— He feared he was expressing himself with too much warmth, but he declared that it was impossible for him to feel any other sentiment towards the Learned Lord than that of the highest respect. There was, indeed, nothing in his whole public character that could provoke the smallest hostility ; but he was prim.] to say, that there was always a strong party in that House, whebAieved their own personal interest con cerned in every thing connected with the public wel , fare. He would now beg leave to read from a copy of a pamphlet, the extraordinary deposition of this man, and then he would leave it to any Gentleman to say whether he thought such a statement ought to remain uncontradicted, or if the circumstances re lated were true, some persons ought to go unpu nished? It was only of use to spew what had been done with this person from the be g inning, and thus to shew Magistrates, and all infenor Magistrates in this country, that those were practices whieli the Constitution does not suffer. (The Honourable Gen tleman then proceeded to read a variety of passages from the pamphlet, which have already been extracted in the public papers. They related to the interroga-, tions put to him, whether he would be a witness, i and his being afterwards told by the Procurator fiscal that his name was put down as one.)—The whole question (said the Honourable Gentleman) from beginning to end, was as to this man's being brought forward as a witness ; and the inference must be, 'that the Procurator Fiscal was not unauthorised by Mr: Drummond, and it would be enough to call on d Mr. Drummonto say whether the Procurator was authorised or not ? The first time Mr. Drummond saw him in the Castle he said M'Kinlay had been served with the indictment, that he was in the list of witnesses, and this was the time to determine whether he would be a witness ;—Gear, hear, hear.)--Could any man,be so slow as not to understand the mean ing of this ? The deponent said he did not wish to be a witness. He was told he might change his name after the trial, that he might not be known.— The deponent said he would not change his name. Drummond then said, he had been thinking of a plan to get him into the Excise. • (Load laughter.) He would write to Lord Sidmouth, if he chose, to ask such an appointment for him. This was after he had been told his name had been put down as a witness. —He could not believe that his life was in danger,' when he was told it was, and was advised to go abroad after the trials should be over. But if this' were a fact, why was he offered a place at home ? Would making him an Exciseman protect him .—(Lasighing)? There was then a conversation - with regard to his safety, at which molt3erson was present but Drummond at the first time it was broached.— Campbell said, 4‘ 1 cannot be a witness. I do not choose to be made an Exciseman."—.‘ Then what will you have ?"—(Hear, hear, aid laughing.) If this were a fabrication, the man had only, after stating it once, to let it drop ; but he repeats it afterwards.— Then came the passage that the Learned Lord had ' read and laid so much stress on, and which, in his, opinion, was one of the most painful passages of the' whole. Drummond said to him, that if lie would I give such information as would please the Lord Ad vocate, he should neither be tried nor made a witness. Drummond had tried to make a witness of him, but finding he could not prevail, he said, If you'll only give information, not make a witness of you."— (Hear, Aker.)—He concluded with telling him there were two things.at his option, either tube a witness or to be tries for his life. • These passages he should much wish to see contradicted.; for he conceived that nothing would tend so much to pervert the cause of Justice, as to talk to a man of the danger he may be ' in from prosecution, in order to induce him to give information. He must repeat, that there was not evidence against Drummond of these being facts, but they were such assertions, that neither.he, nor any body connected with him, ought to rest satisfied till they were coutradicted. The man was then told he I might be sent to Prussia, where lie might obtain work at his own trade as a cotton weaver, and better pay than at home, and the deponent said he would consent, if his wife were also considered ; and then • came the question of sending for his wife—(hear). — There was then an interview between him and the Solicitor-General, the Procurator-Fiscal, the Sheriff, and Sheriff's Substitute, and a Clerk. The deponent said he would not answer till the means of sending hint to Prussia had been settled. He could not be a witness, unless he got his passport for the Continent and the means of conveyance. Now, was there any thing in the world so'easy as to contradict this, if it were not true? Could not any of•the persons pre sent, even the Clerk, prove the contrary, as he must have taken down the witness's words? But the sum and substance of the whole was a written agreement, that he should be conveyed at the public expense to a foreign country. It niight ha said, that it was fair to transport him, in order to pre.erve him ; and that it might be desirable for him to go, as in Glasgow he could - ges-e•triosr siapeesee aw-aire shillings a-week waget.; while in Prussia there were offers held out that might induce men in his situation to emigrate. Then we were told that this was not an offer •of reward. lie afterwards wrote to Captain Sibbald, the Jailer, fur a pair of shoes and some mo ney ; but he told him, on sending the shoes, that he could not give him any money till after the trial was over. He wrote again, got the same answer, and Captain Sibbald told him he had got it from Mr. Home Drummond. What, then, was so easy as to prosecute this man for perjury ?—{Hear, hear.) — The Learned Lord had said it was the duty of the Sheriff not to take down any thing illegal : but be cause the Sheriff had burnt his notes, '(and he really could not imagine why he should have done so) we were to conclude there was nothing in them that was not fit to see the light (Laughter.) He would leave the House to say whether there was any thing in this paper that was likely to give information either to confirm or contradict 'the deposition 'of Campbell a The man even told when he got books from the cir culating library ; and thus, if all were not true, there was not a. fact but what would lead to his detection. He said the first information of his life being in dan gma came from the Sheriff or the Procurator Fiscal, but he did not tell Mr. Drummond his life was in • danger ; on the contrary, he kept up the idea, and . allowed Drummond to draw his oven conclusions.— The subject of the accusation, however, was this— that as this Gentleman, Mr. Home Drummond, was the Deputy of the Learned Lord, he was responsible for the offers held out to the witness, is relating to the promises of reward for giving his testimony. He differed from the Learned Lord as to the law of Scotland. If the witness had received any reward, or promise of reward, for giving his mammy, his evidence could not• be received. The Sheriff said he could not be a witness of any thing that had been done towards him ; so the Court decided, and so the Learned Lord decides, and withdraws him. On what grounds could the Learned Lord do this, unless he discredited the witness a aw that it was against the law? Adverting to Burnet's book, which had been alluded to, he disclaimed its being good authority, nor was the case to which the Learned Lord referred; but if the Learned Lord would state that it was the law of Scotland, that he (Campbell, should be a wit ness, although he received reward, he would then contradict him on the best authority, that of five emi nent Counsel of Edinburgh, whose names he would not mention, or they would be perfectly satisfactory to the House.—( Cries, of came, atone.) They hod given their opinion to this effect, and also that Bur net was very incorrect. However, as Gentlemen wished to know their names, he would read them. They were Messrs. G. Cianstoun, J. aloacrieff, J. .a. Murray, H. Cockburn, and Andaew Rutherford.— (Loud cries o/ !sear, hear, hear.) —Ali these Gentlemen would have disdained to set their names to any opi• nion not founded on the law ; and he was desirous that it should be examined how much such an opinion lane on the present question. Was such a witness to be put in the box, when it was known before hand he could not serve the cause, or that before serving it he must commit perjury ?--( Hear, hear, hear.).--- This was a dilemma from which the Learned Lord could nee escape. The unexpected turn that had been said to here taken place was, that the person on whose testimony they most relied was rejected. The Hon. Gentleman then entered into the details of a similar case that had lately occurred in a civil action, when the opposite Counsel said, that to give money to a man to swear to a falsehood was a very bad crime, but to preserve and protect the man, was finding out a better way than the devil himself could have hit upon to effect subornation; and the Chief Justice added, that if such a practice were to be admitted, 1,000/. might be expected to buy false witnesses in any case. This was the first time he had ever heard it asserted that it was allowable to tamper with wai tresses ; and it' the House did not take proper steps op it, there would not be a petty tracker in the law or rttifogging attorneyin the kingdom, but what would dank himself justified by its decision in carrying on the practice. He therefore felt in his conscience, that if the House did nut enter into this investigation they would do the greatest disservice to the co u n t ry t h at could be imagined. Public justice was not a thing • to be played or trifled with, as s ail our liberties de pended on its impartial administration, and above every thing on the sacredness of the testimony of wit nesses. There had been a question put to him that he must answer before he sat down. It was true that Campbell had contrived to send to one of his-Lea rned Friends a detailed statement in writing of what had afterwards appeared as his deposition, and the way he adopted was certainly ingenious enough, for he had enclosed it in a roll of tobacco—/ Hear, hear.) At the consultation held upon it, there was only one of the Gentlemen who believed the thing could pos sibly be truellear, hear.) They thought it t o b e a- story made up, wh en, as the phrase is, the witness WAS breaking down ;but they determined to reject his eligibility as a witness: Sir A. COLQUHOUN declared he had listened to the grave charges of the Honourable Gentleman who hadapoke last, but had never heard any that. were more completely ill-founded for inducing the House to agree to the motion of the Noble Lord. He did , not mean to say that - nothing had been brought fur ward that might gain the attention of the House ; but the Noble Lord had said his object was to obtain the ReCord, as he meant to represent the whole pro ceedings as criminatin" the conduct of the Noble Lord.. The Hon. and Learned Gentleman proceeded at some length to vindicate the character of th e Leatned Lord, and of all the Gentlemen concerned in the prosecution ; and went over the same grounds as the last- speaker, to shew that the . asses tion of Drummond being fully persuaded Campbell's lila was in danger, and his believing that he could not live in the country, was utterly inconsistent and absurd, as was particularly the statement that he offered him a situation in the Excise, where he would have re mained as a marked individual. This pan of the deposition bore internal evidence of its own fahc hood. The Hon. and Learned Gentleman noticed various other points in the deposition, and con._ merited on their gross improbability, the whole of which might be said to contain a few scanty ingre dients of truth in an overflowing cup of falsehood. —He contended that the talker in question was en titled to give the Deponent protection, by sending ban out of the country, but denied that it could be I