John Brown alias Humphry Moore, sometime residing in Edinburgh, present prisoner in the Tolbooth of Canongate of Edinburgh, called.

Mr. Wight, for the panel, William Brodie—My Lords, before this witness, who is also a socius criminis, is called in, I have to object to his being received as a witness upon grounds which, I imagine, are insuperable. This man, my Lords, was convicted at the General Quarter Sessions for the county of Middlesex, by the verdict of a jury, of stealing twenty-one guineas and fourteen doubloons, in consequence of which he was adjudged to be transported beyond the seas for the term of seven years, in April, 1784, and this is instantly instructed by a copy of the said conviction, under the hand of the proper officer, now produced; and further, the witness, under the name of John Brown, was banished by the Justices of Peace for Stirlingshire from that county in September, 1787, upon his confessing a theft committed at Falkirk, as appears from a certified copy of the said sentence under the hand of the Clerk of the Peace of the said shire. I shall not take up your Lordships’ time in proving that a man thus infamous is altogether inadmissible as a witness in any cause, especially where life is concerned, and I have no doubt that your Lordships will sustain the objection.

The Solicitor-General—My Lords, in answer to this objection, I here produce His Majesty’s most gracious pardon in behalf of this witness, under the Great Seal of England, dated 28th July last, which, by the law of England, renders the witness habile and testable.

Mr. Wight—The production of this pardon, my Lords, will by no means answer the objection which I have stated. The infamy attending the commission of the crimes of which Brown has been convicted is not, cannot be, done away by the King’s pardon. He still remains a man unworthy of credit, in whom the gentlemen of the jury can place no confidence. His situation, in short, is just the same as it was before the granting of the pardon, unless that the pardon saves him from the punishment awarded against his crimes. This doctrine is delivered by Sir George Mackenzie in very strong terms, and it is the doctrine of common sense.

[During this time some desultory conversation took place about what was the felony for which Brown was sentenced, the Lord Advocate saying it was only swindling.

The Lord Advocate —My Lords, as to the sentence against Brown, supposed to have been pronounced by the Justices of Peace for Stirlingshire, it does not appear with certainty, nor do I know whether Brown, the witness, be the same person who was the subject of that sentence or not, as the certified copy of the sentence of banishment produced is against one John Brown from Ireland. I admit, my Lords, that if he had been tried by a proper Court and convicted in consequence of the verdict of a jury that the objection would have been a very good one; but the sentence of the Justices of Peace here produced cannot afford an objection which your Lordships can sustain in bar of his evidence. Granting him to be the same person, there is here no trial or verdict of a jury. It appears that a petition was presented for him to avoid the trouble of a trial, and the Clerk of Court has most improperly taken down an acknowledgment of his guilt. There was no occasion for his accusing himself, it was sufficient for him to state that he wished to avoid the consequences of a trial; and therefore, my Lords, this sentence can in no view of the matter be held to infer his actual guilt of the crime laid to his charge before the Justices. My Lords, I admit in the fullest manner the effect of the first sentence against Brown for the felony, but I maintain that it is completely taken off by the subsequent pardon.

I do not reckon myself obliged to answer to the general objection of socius criminis: that is fully answered by the practice and the uniform course of your Lordships’ decisions. A specialty was argued in the case of Ainslie; but this witness is in a situation very different. He never was charged with this crime, nor was he ever liable to the temptation which it was alleged, for the panels, might have influenced the former witness.

My Lords, many daring robberies have been committed in this city, and, in spite of the utmost vigilance of the police, no discovery could be made of the perpetrators. At length, upon the Friday after the robbery of the Excise Office, Brown went to Mr. Middleton, a person employed by the Sheriff, and told him such circumstances as led to a discovery. From this, my Lords, I am bound to suppose that he had repented of what he had done, and I conceived it to be my duty not to prosecute him, but, on the contrary, to make use of his evidence as a means of discovery of the rest of his accomplices. After this, my Lords, it was found that he had been convicted at the Old Bailey. I then applied for advice to those whom I thought were best enabled to assist me concerning the law of England on this subject, and I learned, my Lords, that the proper method to be followed was to apply for a pardon. There is no occasion for making a mystery of the matter, it was the Recorder of London I did apply to. He is a gentleman necessarily more versant in these matters than any other man in the kingdom. By his advice, I applied for a pardon and accordingly obtained it.

But, my Lords, there was no occasion for a pardon in this case; the witness, in my opinion, would have been just as admissible without it. The sentence by which he was condemned is to us entirely a foreign sentence, and, therefore, upon the universally received principle of law, that statuta non obligant extra territorium statuentis, it can be of no force with us, unless from that politeness, termed comitas by the law, which civilised nations pay to the decrees of each other, and, accordingly, unless your Lordships shall, ex comitate, be disposed to give effect to the decree of a foreign Court, this objection is such as cannot even be listened to in the first instance, the crime said to be committed by Brown having been committed in England, and the sentence pronounced against him being the sentence of an English Court.

My Lords, your Lordships in another capacity, in the civil Court, do not as a matter of course give effect to foreign decrees. In every instance you must be satisfied that the decree is consistent with equity and justice before you interpone your authority. And this holds more particularly in such decrees as infer a penalty, in which case, indeed, some lawyers think, and my Lord Kames declares himself to be clearly of that opinion, that no weight whatever is attached to a foreign decree.

But, my Lords, even laying this out of the question, His Majesty’s most gracious pardon, which I hold in my hand, puts an end to all objection at once. There is not, indeed, a clearer point than that a pardon from the King takes away the effects of any former sentence, and makes the person pardoned precisely the same person he was before the sentence was pronounced against him.

This question must be judged of according to the law of England, and English authorities are express to this purpose. Thus Blackstone, B. iv. ch. 31, in fine says, “The effect of such pardon by the King is to make the offender a new man, to acquit him of all corporeal penalties and forfeitures annexed to that offence for which he obtains his pardon, and not so much to restore his former as to give him a new credit and capacity.” And another authority, my Lords, equally respectable—I mean Bacon’s Abridgment, p. 809—lays down exactly the same doctrine. This witness, therefore, is and must be admissible, notwithstanding the sentence pronounced against him. He has a new credit and capacity given him by this pardon, which enables him to be adduced as a witness, whatever may have been his character previous to obtaining it.

The authority of Sir George Mackenzie has, indeed, been stated as in opposition to this argument. But things have varied so much since his days, and his opinions are frequently so loose and confused, that no weight can be given to his opinion in opposition to such direct and recent authorities as I have quoted. It is perhaps no great authority, my Lords; but I hold a newspaper in my hand, from which it would appear that a case in England exactly in point was determined in July last in consistency with the authorities I have mentioned; and another case in the year 1782 was determined in the same manner.

As to the sentence of the Justices of Peace, I confess I was surprised, my Lords, that the counsel on the other side of the bar should have urged it, when in so late a case as that of Brown and Wilson, in the year 1774, your Lordships found that a sentence of the Justices of Peace was no bar against the admissibility of a witness, nor any sentence which proceeded without a jury. I therefore sit down, my Lords, in the full conviction that your Lordships will over-rule the objection against this witness.

The Dean of Faculty—My Lords, this case, so far as I know, has never yet been decided by your Lordships. The witness is in a new situation, and in one so extraordinary that it well deserves your Lordships’ serious consideration, whether he ought, in law or in common justice to the panels, to be allowed to give evidence. My Lord Advocate is mistaken in saying that Brown was not under the same apprehension with Ainslie when he accused the panels; for I cannot conceive that any man could have better ground than he to be afraid of the justice of his country; and certainly no man ever spoke under more strong and immediate fears of a halter.

When he made his confession he was under sentence of death, at least he knew well that he was liable to a capital conviction for not having transported himself conformable to the sentence at the Old Bailey. He knew that a pardon was necessary to preserve his life, and that it was impossible for him to remain in safety without it in this country. The game he played, therefore, was very evident—he did not accuse Mr. Brodie at first, and gave no information whatever but against the panel Smith. My Lords, was it unnatural for a man of his complexion in such circumstances to have recourse to fiction? Accordingly, whenever Mr. Brodie was taken, a strong accusation against him was for the first time made by Brown, and this pardon was the immediate consequence. Let your Lordships reflect upon the whole of his conduct; let the jury take it into their most serious consideration; and I will aver that no evidence was ever offered under more suspicious circumstances.

The effect of the pardon, my Lords, is another point, and it is one which involves the most important consequences.

It is admitted on the other side of the bar, and, indeed, without their admission it is in evidence, that this man John Brown or Humphry Moore was sentenced to transportation by the Courts in England for a felony. It is not denied that a sentence of this nature precludes of itself the admissibility of that person as a witness against whom it is awarded, but it is said that this sentence is a foreign decree, to which we are not bound to pay any respect.

My Lords, are not the Courts of this country in the practice every day of paying respect to foreign decrees? It is true that the decrees of foreign Courts receive effect in this country only ex comitate. But it is nothing to me upon what principle the Courts here give effect to such decrees, if effect be really given. And that such respect is paid to foreign decrees, unless where they are contrary to our own law, is a position which no man will contest. To what purpose, then, is it stated, that this is the sentence of a foreign Court, unless it be stated at the same time that it is a sentence which your Lordships would not have pronounced in the same circumstances? The crime of which Brown was convicted is equally punishable in both parts of this island, and the effects of the sentence following upon the crime must, therefore, upon the universal principles by which all nations are now guided, be the same in both parts of the island also. The objection, then, that the decree is foreign, cannot be listened to by your Lordships without overturning those settled maxims by which your decisions, both in this Court and in another Court where all your Lordships sit, are constantly directed.

But His Majesty’s pardon, it is said—this pardon now produced to your Lordships, and obtained for the sole purpose of endeavouring to enable this man to be a witness—has now placed him in the same situation as if he had never been condemned.

My Lords, I have heard it said that the King could make a peer, but that he could not make a gentleman; I am sure that he cannot make a rogue an honest man. This pardon, therefore, at the utmost can only avert the punishment which follows from the sentence. It cannot remove the guilt of this man, though it may save his life. Can it, indeed, my Lords, be supposed that this amiable prerogative, lodged in the hands of the King for the wisest of purposes, and to be exerted by him as the father of his people, should have the effect to let loose persons upon society, as honest, respectable men, as men who may be witnesses, who may be jurymen, and may decide upon your lives or my life to-morrow, although these very persons were yesterday in the eye of the law and the eye of reason held as hardened villains from whom no man was safe, considered as wretches guilty of, and fitted to, perpetrate the most abominable crimes; and that although every man knows them to be the same as they were, and is equally afraid of, and would as little trust them as before they obtained a remission of their crimes?

My Lord Advocate has talked of their obtaining a new credit by the pardon. What is this, my Lords? Can it be a new credit to cheat and rob and plunder? Is this pardon to operate like a settlement in a banker’s books, when he opens a new credit upon the next page, after old scores are cleared off? My Lords, it is impossible. To suppose a pardon to have such effects is to suppose it the most unjustifiable of all things.

My Lords, I am willing to allow that this pardon should have every consequence beneficial to Mr. Brown; that he should derive all the benefit from it which the pardon itself expressly declares to be competent to him, and that no part of the punishment to which he was liable before this extension of His Majesty’s clemency can now be inflicted upon him. But this is very different from the proposition, that he is a good evidence in this or any other cause; it is no part of his punishment that he is not allowed to swear away the life of his neighbour; on the contrary, it is rather a favour to him. That he is intestable was never a punishment even before the pardon was granted; it is only a consequence of the sentence for a crime of an infamous nature which fixes an indelible character upon him, and describes him as a man whose testimony is worthy of no regard; and that character is no more removed by the pardon than the original truth and authenticity of the evidence upon which he was convicted is falsified by it; on the contrary, the pardon contains in itself the most unexceptionable evidence of the guilt and infamy of the person who is obliged to plead it.

Authorities have been quoted on the other side of the bar, but they are not the authorities of our law. The authority of Sir George Mackenzie is expressly in their teeth. This is the second time to-day, my Lords, that I have heard this respectable writer talked lightly of. I cannot but express my surprise at it. He was undoubtedly a man of the highest abilities, and he is our only criminal lawyer. I think he is the most intelligible and clear of all our writers, and I have read him with great profit. But his authority is to be held light in this matter, because his opinion is decisive in favour of this objection—an opinion which, though it were not delivered by such high authority in our law, is yet so much in unison with the common reason and common feelings of mankind that I should deem it to require no other support.

The sentence of the Justices of Peace of Stirlingshire, it has been said, forms no objection to the admissibility of this witness, because it was pronounced without a jury, as all their sentences are. My Lords, this is not the reason. Sorry I am to say that, by a decision of your Lordships, magistrates of burghs and Sheriffs of counties have been found entitled to whip and imprison British subjects without a jury. But will it be maintained that persons so punished will not be accounted infamous and their testimony rejected?

My Lords, the reason why the sentence of the Justices of Peace was held not to bar the admissibility of a witness was because they are not a Court of record, and your Lordships could not be legally certified of what was their judgment. Could this information have been legally obtained the infamia facti would have been sustained as sufficient without the infamia juris.

A man is equally infamous in either case if his punishment is merited. And why is infamia facti not always admitted in our law as a sufficient bar, but merely because all objections to witnesses must be instantly verified, which would produce an infinite number of trials within trials, and, besides, which is far worse, would be trying a man without a libel, without allowing him time to produce witnesses, and without a jury. But the infamia facti, if proved—and in this case the proof is beyond dispute—is equally strong to render a witness inadmissible as any infamia juris. For it is not merely the sentence of a Court which makes a man intestable, but the fact that he is a villain. And this is an additional proof that His Majesty’s pardon, which undoubtedly does not justify the act, though it saves the actor, cannot take away the infamy attendant upon the crime of which he stands convicted.

But the matter does not end here. My Lords, supposing that His Majesty really had this incomprehensible prerogative of changing, by a sheet of parchment, a corrupt and dishonest heart, and cleansing it from all its impurities, I still maintain that it has not been exercised. Where is the clause in this pardon restoring Brown to his character and integrity? You have heard the pardon read, and there is no clause in it to that effect. He is screened against punishment and every effect of a prosecution; but it would have required a very express clause indeed to give the pardon the additional force of removing the infamy of his sentence, and surely the warmest advocates for prerogative cannot be offended at its being said that the King must exercise that prerogative before its power can be felt.

My Lords, I shall trouble you with nothing farther upon this subject, which appears to me very clear. The sentence of the English Court is no more foreign than those to which the Courts of Scotland give effect every day. It is such a sentence as your Lordships would have pronounced had the crime been committed in this country. His Majesty’s pardon cannot, by our law, restore this man from the infamy annexed to this sentence, and common reason tells us that it is beyond the power of kings, because it is beyond the power of man, to reinstate a man in his original integrity by their fiat.

Lord Hailes—My Lords, the Dean of Faculty has done more for Sir George Mackenzie than I was ever able to do, though I studied him before the Dean of Faculty was born. Sir George Mackenzie’s work on the criminal law is a medley of opinions formed from the civilians, with what occurred in his own practice, and desultory observations upon them. He is exceedingly inaccurate. He mentions, for instance, an Act of Sederunt which has no existence, and in many other instances talks equally loosely.

With regard to the present objection, my Lords, it is clear that the decree is foreign. By the articles of the Union, our own laws and forms of procedure are secured to us, and we have as little connection with those of England as with the laws of Japan, being as little bound to obey them. At the same time there is always a comitas to foreign decrees, where not inconsistent with our own law. Here, however, there is no necessity to enter into this question, as the sentence in this case is superseded by the pardon. The sentence of the Justices of Peace weighs nothing with me. No such sentence ought ever to render a witness inadmissible, for Justices of Peace are always ready enough to banish a man who is accused from their own territory. I am therefore for repelling the objection.

Lord Eskgrove—My Lords, I think this a matter of very great importance. I am clearly of opinion that it is beyond the prerogative of the Crown to render a person capable of being a witness by granting him a pardon. I know no such prerogative.

But, my Lords, the decree here is a foreign decree, and in judging of it we must consider the law of the country where it was pronounced, and from the authorities, my Lords, which have been quoted, it appears that a pardon in England does take off the whole consequence of the sentence. And in my opinion it would be highly unjust that the English sentence should be allowed to militate against a person exactly as it would do in England and not at the same time to give the pardon the same effect which it would have in that country. The comitas due to the sentence of an English Court is also due to the pardon, or to the sentence which an English Court would pronounce in consequence of that pardon. I cannot figure a more grievous punishment than that of being held out as a person incapable of giving testimony in any cause; and if by the law of England all the consequences of a sentence are done away by His Majesty’s pardon, then this goes among the rest.

Had the crime been committed, or the sentence pronounced, in Scotland I would have had another opinion. I do not sit here, my Lords, to pass judgment upon authors long since dead. But the same opinion is delivered by Dirleton, which is given by Sir George Mackenzie; and his authority will not, I suppose, be questioned by any lawyer. And I hold it to be the law of Scotland, that a pardon does not restore the person pardoned, so as to free him from the infamy attending his crime. But as the law of England—the law of that country where the crime was committed, and the sentence pronounced—says otherwise, I am bound to repel the objection.

Lord Stonefield—My Lords, I am for repelling the objection. It was repelled in the case of Lord Castlehaven in the State trials.

Lord Swinton—My Lords, this is a question of so much delicacy and importance that I could have wished more time to have weighed what I have heard from the counsel than the forms of Court will admit of.

The question is—Whether His Majesty’s pardon did so far restore John Brown to the character and reputation he held before his conviction as to make his evidence admissible in the present trial?

In substance, my opinion concurs with that of my brethren, for repelling, in the circumstances of the present case, the objection to the admissibility of the witness, leaving his credit to the consciences and good sense of the jury.

Had John Brown’s conviction proceeded upon a jury trial in Scotland, I would have been of a different opinion. There are, in the first place, several texts in the civil law upon this topic, all clearly purporting that a remission, so far from restoring, even blemished, the reputation of him whom it relieved from punishment. Next, our municipal law is perfectly explicit to the same effect. The statutes of Robert I., among others therein debarred from giving evidence, mentions convicts redeemed from justice. This act is expressly quoted and laid down as law by Sir George Mackenzie, who is, at least, our most ancient author upon the criminal law, and there is no practice or decision to the contrary.

These observations, however, I do not apply to the present case, for here the conviction and sentence are from England. The infamy, therefore, disabling Brown to be a witness arising in the law of that country, and coming here, must bring its character and construction and effects along with it.

I observe that one of these effects was the restoring a criminal pardoned to the state and character that he held previous to the conviction. The authorities referred to by the Lord Advocate prove this, and, in addition to these, I shall only mention to your Lordships Mr. Justice Buller’s Treatise on Trials, a book of great authority, which lays down that if a person found guilty, on an indictment for perjury at common law, be pardoned by the King, he will be a good witness, because the King has power to take off every part of the punishment.

As to the sentence of the Justices of Peace of the county of Stirlingshire, banishing Brown by his own consent from that county, no stress can be laid on it, as it is now a settled point that no sentence of an inferior Court, proceeding without the verdict of a jury, is sufficient to set aside any person from being a witness.

The Lord Justice-Clerk—My Lords, I will not say a word about the sentence of the Justices of Peace, nor of what would have been the case had the crime been committed, or sentence pronounced, in Scotland. I would hold the decree in England pro veritate, and give it effect accordingly. But, my Lords, if the pardon frees this man from the penal consequences of his sentence, although I were to hold that it does not rehabilitate him in Scotland, still it leaves only the infamia facti, for the infamia juris is, eo ipso, done away. And, my Lords, nothing can set aside a witness unless infamia juris.

The Dean of Faculty argued this objection with great ingenuity, but he founded his whole argument on the proposition that an infamia facti, if it was capable of proof, was a sufficient objection to the admissibility of a witness; and, indeed, unless this proposition were true, his whole argument falls to the ground. But, my Lords, this proposition is evidently fallacious, and I need use no other instance than that of Ainslie, who, like every other King’s evidence, admitted in the very bosom of his deposition an infamia facti, in so far as he was concerned in the commission of the crime charged against the panels, and yet it was not even pretended that this was an objection to his admissibility; and your Lordships every day allow the examination of witnesses in the same situation. I am therefore clear for repelling the objection.

The Court then pronounced the following interlocutor:—

The Lord Justice-Clerk and Lords Commissioners of Justiciary having considered the foregoing objections with the answers thereto, they repel the objections stated and allow the witness to be examined, reserving the credibility of his evidence to the jury.

Robt. M‘Queen, I.P.D.

[The witness was then called in and sworn.]

The Lord Justice-Clerk—John Brown, you are called here to give evidence regarding a matter in which it is generally supposed that you yourself had some concern. You are now informed by the Court that although you may have had such a concern you are in no danger to speak the truth, because, being adduced as a witness against the prisoners at the bar, you cannot be tried for the crime of which they are accused; and you will take notice that whatever you may have said against these men, in the different declarations which you emitted before the Sheriff, which are now destroyed, you are now bound by the great oath which you have sworn to tell the truth; and that if you say anything to the prejudice of these men that is not true or if you conceal any part of the truth, with a view to favour them, you will thereby be guilty of the crime of perjury, for which you will be liable to be tried by this Court, and severely punished, and you will commit a heinous offence in the sight of the Almighty God, and thereby endanger your immortal soul.

John Brown —I am acquainted intimately with both the panels, and have been frequently in company with them, and with Andrew Ainslie, then a shoemaker in Edinburgh. I have met Brodie often at Smith’s house and other places. I know that the General Excise Office in Chessels’s Buildings was broken into upon Wednesday, the 5th of March last; I was myself one of them that broke into it, and Andrew Ainslie and the two prisoners were along with me. George Smith and I were within the office, Brodie was at the door, and Andrew Ainslie was without, keeping watch. We had resolved three months before to break into it; and on the 30th of November last, the night on which the Free Masons made a public procession last winter, Smith, Ainslie, and I went to the Excise Office and unlocked the outer door with a false key. We went in together, and opened the inner door to the hall with a pair of toupee irons, but none of the keys we had would open the cashier’s door. Smith said a coulter would be a good thing to open it with. Thinking it too late to remain longer, we came out again; but we could not lock the outer door with the key, and therefore left it unlocked. Last spring Ainslie and I went to Duddingston, and drank a bottle of porter in a house there; afterwards we went into a field in the neighbourhood, in which there were two ploughs, and carried off the coulter of one of them, which we hid in Salisbury Crags. On the evening of the 5th of March last, which was two or three days afterwards, when it was about dusk, Ainslie and I went out to Salisbury Crags for the coulter, and brought it in with us to Smith’s house. Smith was at home, but Brodie was not yet come, although we expected him. The hour at which we had agreed to meet was seven, but Mr. Brodie did not come until near eight. The purpose of our meeting was to go and rob the Excise Office that night. We were in Smith’s room above-stairs when Brodie joined us, and we there drank some gin and “black cork,” and ate some herrings and chicken. By “black cork” I mean Bell’s beer. Mr. Brodie was then dressed in black; in the preceding part of the day I saw him in white or light-coloured clothes. I do not remember that he had a great-coat on when he came to us at Smith’s in the evening. When he entered the room he took a pistol from his pocket, and repeated the verse of a song of Macheath’s from a play, words like—“We’ll turn our lead into gold,” or such like. After we were all met together, it was agreed upon that Ainslie should remain on the outside of the Excise Office, within the rails, with a whistle, to give the alarm in case of danger; that Brodie was to be stationed within the outer door for the same purpose; and that Smith and I should go into the cashier’s room. Accordingly, Ainslie left Smith’s first, and in some time after I followed. Brodie was not disguised, but Smith and I had crapes in our pocket, and Smith had likewise a wig, which, I believe, had once belonged to Brodie’s father. When I came to the mouth of the entry to Chessels’s Buildings, I met the old man who usually locked the door coming out, and went after him and saw him go home. My reason for so doing was to see that he had not gone on an errand and to return. When I came back to the court I met Brodie in the entry, who told me that Smith had gone into the office, and desired me to go in. I went down the close with him, saw Ainslie at his post, and received the coulter, or “Great Samuel,” from him, and carried it in with me to the office. I found the outer door open and Smith in the hall. The outer door of the cashier’s room was opened by Smith with a pair of curling irons, and I assisted him to force open the inner door of the cashier’s room with the coulter and a small iron crow. After we got in, Smith, who had a dark lanthorn (dark lantern)  with him, opened every press and desk in the room where he suspected there was any money; some by violence and others with keys which we found in the room. We continued there about half-an-hour, and found about sixteen pounds of money in a desk in the cashier’s room, which we carried away with us. It consisted of two five-pound notes, six guinea notes, and some silver. We heard some person come upstairs, and cocked our pistols, which were loaded with powder and ball. Smith said he supposed it was some of the clerks going into one of the rooms. We heard no whistle while we were in the office. When we came downstairs, Brodie and Ainslie were both gone. We left the outer door of the Excise Office unlocked, and carried the key away with us. We then came up to the Canongate, and went across it, and down another street a little below—Young’s Street. I stopped in the middle of the last street, pulled off my great-coat and gave it to Smith. I then returned, went down to the Excise Office door, where everything seemed to be quiet; afterwards I went to Smith’s house, where in a little I was joined by Smith, and soon afterwards by Ainslie. I did not remain there long, when Smith recommended it to me and Ainslie to go over to Fraser’s house in the New Town, that we might avoid suspicion; and we went accordingly. I knew at the time that Smith was making a key for the outer door of the Excise Office. [Here the witness was shown a key.] That is the key he so made, and with which he opened the door. We had three pair of pistols along with us, all of which were previously loaded by Smith with powder and ball. [Here the pistols libelled on were shown the witness.] These are a pair of them, but whether that pair was carried to the Excise Office by Smith or me I cannot say. I saw Mr. Brodie have a pistol in his hand in Smith’s house. When Brodie came to Smith’s first that night he brought with him some small keys, and a double pick-lock, which we all looked at. [Here the pick-lock libelled on was shown to the witness.] This is the same that was used on that occasion. On Friday, the 7th of March, I was sent for to Smith’s house. Brodie, Smith, and Ainslie were there, and the money which we got in the Excise Office was then equally divided between us. I got about four pounds from Brodie to my share. I saw all the money in Smith’s room above-stairs before it was divided, and there were two five-pound bank-notes amongst it. On the same Friday evening, I went with Smith and Ainslie to Drysdale’s, in the New Town, and saw Smith change one of the five-pound notes there, when purchasing a ticket for his wife in the mail-coach to Newcastle. I went to William Middleton on Friday night, the 7th of March last, and told him that I wished to make a discovery as to the late robberies; he carried me the same night to Mr. Scott, the Procurator-Fiscal, but I did not at that time mention anything of Brodie’s concern in them. The next day I was sent to England to trace some goods taken from Inglis and Horner’s shop. I returned on the 15th of March, and was the same day examined by the Sheriff. I was informed that Smith had emitted a declaration, informing of Brodie’s guilt, in consequence of which he (Brodie) had absconded, and then for the first time I mentioned that Mr. Brodie had been concerned with us. Ainslie informed Smith and me that he had seen two men come up the close before he quitted his post at the Excise Office and went away. Smith carried the money which was found in the Excise Office away with him, and he afterwards gave it to Brodie, who made a fair division of it on the Friday. On the Thursday I did not see him.

Lord Hailes—John Brown, you have already been told by the Court that you ought to pay no regard to what was contained in your declarations before the Sheriff, and that, whatever you may have formerly said, you cannot now hurt yourself by speaking the truth. I intreat you to reflect on the evidence you have given this night, and if you are conscious of having said anything which you ought not to have said, that you may say so to the Court and to the jury. It is not as yet too late, but if you neglect the opportunity which you now have it will never recur to you again; and I earnestly desire you to beware of this, that if you have said anything this night to the prejudice of these men at the bar that is not true, and if you do not undeceive the Court and the jury before you leave this house, you will commit a most heinous sin against the God of heaven, in whose presence you now stand, and you will be guilty of perjury and of murder.

Cross-examined by the Dean of Faculty, for William Brodie—When you went first to Mr. Scott, the Procurator-Fiscal, did you say anything concerning the breaking of the Excise Office?

John Brown —I did.

The Dean of Faculty—Who did you say was concerned with you?

John Brown —George Smith. I did not mention either Brodie or Ainslie until I returned from England.

The Dean of Faculty—Are you sure that Mr. Brodie brought his pistols to Smith’s in the afternoon?

John Brown —I am certain.

The Dean of Faculty—Did you not say that when he came to Smith’s before eight o’clock he had his pistol in his hand?

John Brown —I did.

The Dean of Faculty—How could he have left them at Smith’s, then, in the afternoon?

John Brown —I did not say he left them there; he brought them there, but carried them away with him again. I am certain as to the small pistols that Mr. Brodie carried in his breeches pocket.

The Dean of Faculty—Was Mr. Brodie present when the pistols were loaded?

John Brown —He was.

The Dean of Faculty—When did Mr. Brodie first come to Smith’s that day, and how was he dressed?

John Brown —He came in coloured clothes, between dinner and tea.

The Dean of Faculty—Might that be four o’clock?

John Brown —I could not tell what o’clock it was.

The Dean of Faculty—Was it after three o’clock that afternoon?

John Brown —I am not certain.

The Dean of Faculty—Was it after two o’clock?

John Brown —Yes, I am certain it was.

The Dean of Faculty — Were these the pistols he brought with him? [The pistols produced.]

John Brown — No, not these; I did not say these, but another pair, since the truth must be told. Do not think to trap me; you may make something of me by fair means, but not by foul. I do not understand the meaning of being thus teased by impertinent questions.

The Dean of Faculty — The more violent the gentleman is, so much the better for my client. The jury will take notice of the manner in which he gives his evidence.

Lord Eskgrove — My Lord Justice-Clerk, the witness should be told that he ought not to talk in that manner to the counsel.

The Lord Justice-Clerk [to John Brown] — Mr. Brown, you are going too far; it is the duty of these gentlemen to put any questions to you which they think proper, relating to the crime charged.

John Brown — My Lord, in giving my evidence, I have said nothing but the truth, and I have rather softened the matter than otherwise, with regard to Mr. Brodie.

The Dean of Faculty — At what hour, sir, did you go to the Excise Office on the night you have mentioned, and when did you return to Smith’s?

John Brown — As I was going down to the Excise Office the clock struck eight, and I was back again at Smith’s house about nine o’clock.

Cross-examined by Mr. John Clerk, for George Smith—Pray, sir, how do you know that to be the key with which Mr. Smith opened the door of the Excise Office? You said just now that you were not present when Smith opened the door; that he was in before you arrived.

John Brown — I know very well that that was the key, because I knew he made it for that purpose.

Mr. John Clerk — But how do you know that he opened the door with that key on the 5th of March?

John Brown —I  know he made the key so far back as November last. I know the key very well; there is not a key in five hundred like it. You will not show me such a key in Edinburgh. There is no smith in this city could make such a key.

Mr. John Clerk — That is no answer to my question.

The Lord Justice-Clerk — It is enough to satisfy any sensible man.

Mr. John Clerk — It is for the jury, my Lord, to judge of that.

[To John Brown]— You mentioned your having on a great-coat when you broke into the Excise Office; pray, sir, was that great-coat your own, or to whom did it belong?

John Brown — It belonged to Michael Henderson, stabler in the Grassmarket, and I carried it home to him the following night.

Mr. John Clerk — Did you carry anything to Mr. Henderson along with it?

John Brown — I did not.

The Lord Justice-Clerk — John Brown, you appear to be a clever fellow, and I hope you will now abandon your dissipated courses, and betake yourself to some honest employment.

John Brown — My Lord, be assured my future life shall make amends for my past conduct.

The Lord Advocate — My Lord, the parole evidence on the part of the Crown being now closed, the declarations and other writings, which have been authenticated in the presence of your Lordships, fall now to be read to the jury, but as there are some parts of Smith’s declarations which relate to matters not immediately connected with the subject of the present trial, I do not desire that these parts of his declarations should be read by the Clerk of Court or communicated to the jury.

[After some conversation, this proposal, which did much honour to his Lordship, was agreed to, and such parts of the declarations as were not read in Court were pasted over with paper, that they might not be looked into through mistake by the jury after they were inclosed.]