Offence: Deception > forgery
Verdict: Guilty > with recommendation
Dr. DODD being set to the Bar, addressed the Court as follows:
I AM informed that the bill of indictment depending against me has been found on the evidence of Mr. Robertson, who was taken out of Newgate, without any authority or leave from your lordships, for the purpose of procuring the bill to be found: Mr. Robertson is a subscribing witness to the bond, and, as I conceive, would be swearing to exculpate himself if he should be admitted as a
[Previous to the arguments of the Counsel the Court directed that an order which had been surreptitiously obtained from an officer of the Court, dated Wednesday, February the 19th, and directed to the keeper of Newgate, commanding him to carry Lewis Robertson to Hick's Hall, in order to his giving evidence before the Grand Inquest on the present bill of indictment; likewise a resolution of the Court reprobating the said order; and also the recognizance entered into by Mr. Manly, Mr. Peach, Mr. Innis, and the Right Hon. the Earl of Chesterfield to prosecute and give evidence against Dr. Dodd and Lewis Robertson for the said forgery should be read, and the Clerk of the Arraigns was directed to inform the Court whether the name Lewis Robertson was indorsed as a witness on the back of the indictment, which was answered in the affirmative.]
Mr. HOWARTH. - As one of the counsel for Dr. Dodd it is my duty to submit to your lordships such observations as occur to me in support of the objection which has been made by the doctor to his pleading to this indictment: I presume your lordships will not put any person to plead or to answer to an indictment that may be found against him, if it appears upon the face of that indictment that the evidence upon which the bill was found was not legal or competent to have been adduced before the Grand Jury: your lordships find that Lewis Robertson , who was committed as a principal in the forgery, has since been carried before the Grand Jury for the county of Middlesex, by an order that is supposed to be obtained from this Court, and hath before that Grand Jury been examined as a witness against Dr. Dodd; how that order was obtained it is immaterial for me to state to your lordships; it is sufficient for me to find that a gentleman in the commission, who was upon the bench, actuated by a very laudable spirit of preserving the dignity of the Court, and to prevent the Court's being imposed upon, mentioned it to your lordships, and, in consequence of its being so mentioned, that order has since been formally vacated by the Court; it therefore stands now as a certain fact, that a witness committed as a principal in the crime has been carried, without any legal authority, before the Grand Jury of the county of Middlesex, and hath there been permitted to give evidence against the prisoner now standing at the bar: it is obvious to every man who hears the fact stated, that it is incumbent upon the witness so admitted to exculpate himself, and to throw the whole weight and load of the guilt upon the gentleman now at the bar. Such evidence it is the genius of our law, and has been the humanity of all courts of criminal judicature, never to receive, because they have always acted upon this principle, that supposing the guilt of the party accused to be undeniable, yet the proof of that guilt shall not be received through polluted channels; as I take that to be the uniform practice of all courts of criminal judicature, I trust the same construction will hold with your lordships. It is impossible to know what passes before a Grand Jury, every thing that is transacted there is transacted under a solemn oath of secrecy, and therefore never can come forth to the world: it cannot be alledged by the gentlemen who are of counsel for the prosecution that it was unnecessary to have Robertson as a witness, because the materiality or immateriality of the evidence given by him to the Grand Jury must be perfectly a secret; but however it is fair inference and fair argument to say, that the gentlemen who conducted this prosecution conceived it to be material to have Robertson's evidence, otherwise there was no necessity for that extraordinary exertion to get him there, unless in their judgment and in their apprehension he might be a material evidence to support the charge against Dr. Dodd. My Lords, I say, upon such grounds, I trust it is fair argument in me to suppose that he was a witness materially necessary for the carrying on of this prosecution, and fixing upon the prisoner the guilt the indictment imputes to him, and that without his evidence the
Mr. COWPER. - Will your lordships please to favour me a few words in support of the motion that has been made by Mr. Howarth, that Dr. Dodd may not be called upon to plead to the bill of indictment that is now found against him, and that that bill may be quashed; and my Lords, it is upon that general ground that the bill of indictment has received the sanction of the Grand Jury of Middlesex, in consequence of evidence having been adduced before them that ought not there to have been produced or heard. The principles upon which we who are of counsel for the prisoner mean to support this idea do not at all combat the general rules of law, with respect to admitting of accomplices evidence, the attaining justice in a degree through the assistant evidence of those who are partners in the crime, under particular circumstances and in particular cases, is very often found to be necessary; but those circumstances and the situation of the party, who is so admitted an evidence, must appear either to the committing magistrate who selects one, perhaps less attainted with the guilt than another, for the purpose of assisting the prosecution, or to the Court who are to try the prisoner; where there have been instances of the Court directing one of the persons committed for the offence to be admitted as an evidence: but, my Lords, except in one or the other of these situations, where a person is brought before a magistrate and charged as a principal, where, upon the face of the instrument, there is every evidence to shew that he is a principal, where the magistrate upon the hearing of the evidence before him commits him as a principal, and where this Court have refused to admit him to the advantage that the situation of an evidence against the prisoner would give him; I submit to your lordships that Robertson's evidence under these circumstances was improperly carried before the Grand Jury, I will not say more than improperly, that is sufficient, it is not necessary to cast any reflection upon the prosecution, it is not necessary to cast any reflection upon the officer of the Court; it suffices us to say, that Mr. Robertson's evidence has been improperly, and in an unbecoming manner conveyed to Hicks's-hall, and there submitted to the Grand Jury, and upon that evidence, together with the testimony of other persons, this bill of indictment is found against Dr. Dodd. My Lords, the gentlemen on the other side of the question will not surely attempt gravely to tell your lordships thatLewis Robertson out of the situation of being committed as a principal in, and liable to be tried for that fact, to be admitted an evidence against a person by which he is to exculpate, and totally to indemnify himself from the consequence of that charge.
Mr. BULLER. - My Lords, I am of counsel on the same side with Mr. Howarth and Mr. Cowper. It is the established law of this land, that no man shall be put upon his trial for any offence, unless there be a bill first properly found by a Grand Jury; I say properly found, for if there be any objection whatsoever to the finding of the indictment, and the most familiar that is to be found in our books are those that go to the objection of the Grand Jury; for instance, where only one person of the Grand Jury has been incompetent, where only eleven of the Jury have found the bill, that therefore it shall not be tried; I take it the objections go universally; I am aware that the objections I have been alluding to, and which are particularly stated in Lord Hale, go to the Grand Jury only; but I will beg leave to consider whether the reason that governs the one does not govern the other. Another case put by Lord Hale is this; if one of theRobertson a witness in this cause, that though, in my humble apprehension, he stands in a much more criminal light than the prisoner at the bar, yet they have thought fit to bargain with him, to let him off from a capital felony of the most dangerous sort to society, the most peculiarly so from his situation in life of any man that can be charged with such an offence. Mr. Robertson stands in this business as a sworn broker of the city of London, as such it was his peculiar duty to preserve good faith between man and man; he is bargained with by the prosecutor to be let off in a case where he stands upon the appearance against him now as the most criminal, for the purpose of procuring evidence against the prisoner at the bar. My Lords, if that evidence be improper, there remains but one thing more to be enquired into, that is, whether your lordships can say that that evidence has not had an improper effect when it was admitted before the Grand Jury: it is not improbable that the bill might be found wholly upon his evidence; if I have a right to assume that as a fact, because the prosecutor has thought it material and absolutely necessary to produce him before the Grand Jury, why then your lordships sitting here cannot say but this indictment may have been found upon his evidence only; if it be so, is Robertson a person whose evidence ought to have been received? If I am right in saying that the same evidence, and the same evidence only, is legal before a Grand Jury which is legal upon a trial, I apprehend the case which was mentioned yesterday in Lord Hale, folio 303, is decisive upon this point. My Lords, there are more passages in that folio book; the first was the case mentioned yesterday of
"for a burglary, and (by the advice
"of Keeling, chief justice, Brown, justice,
"and Wilde, recorder) Perrin was sworn a
"witness against Trew as to the burglary,
"which he confessed, but was not indicted
"for the other felony." Here he was admitted, because he confessed himself guilty. The passage before that in Lord Hale seems to me still stronger:
"If two defendants be
"charged with a crime, one shall not be
"examined against the other to convict him
"of an offence, unless the party examined
"confess himself guilty." Now, has Robertson confessed himself guilty? No, he has not; then there is an express authority by Lord Hale, that not having done it he is no witness, he does not stand in that predicament which Lord Hale states the man to be there. He says, that they were both charged with the crime; that is the case here; the prisoner and Robertson were both committed for the same crime; he stands now charged with that crime, and he has not pleaded guilty; therefore upon this authority I take it to be clear, that he cannot be admitted a witness upon the trial, and if not, I must leave it to the ingenuity of the learned counsel to shew why a man, who the law says shall not be a witness upon the trial, shall be admitted a witness to find the bill upon, against a man whom there is no other evidence to affect.
Mr. MANSFIELD. - I am to trouble your lordships in answer to this objection, which to me is perfectly new, which to me is totally unlike any that I have ever read or heard of; and I find that the gentlemen who here support this objection, very properly don't produce before your lordships any one instance in which such an attempt was ever made, much less an instance in which such an attempt succeeded; for myself, and for those for whom I stand here, as they have no wishes upon this subject but that justice should have its course, they certainly will not desire me, nor should I find
'We think this gentleman ought to be put upon his trial;' for that is all that they have said. My lords, I should have thought this a very full and sufficient answer to the objection, if something had not been said which makes it, for the sake, not of the motion itself, but of the parties concerned, and of those who have acted different parts in it, to say something more to your lordships, as well too as to take notice of some which appear to be indeed very dangerous doctrines that I have heard delivered upon this occasion. One grand and indeed principal objection, as I before observed, to this witness is, that he was improperly carried before the Grand Jury;
"improperly carried," I think are the words used; and the impropriety consists in this, that an order was obtained for carrying the body of this Lewis Robertson before the Grand Jury, there to be a witness, and then to be brought back again to the gaol of this Court: that that order was improperly obtained, there is no doubt; I am not at liberty now to dispute it; at the same time, though it certainly was improperly obtained, and was obtained from a mere mistake upon an idea that the proceeding was regular, though it certainly was not, but at the same time it is well known to some that hear me, who are acquainted with the business, that it was a matter of course, if the prisoner had been in another gaol; for if he had been in another gaol, and not in that of this Court, your lordships know an Habeas Corpus might have been applied for, and must have been obtained, to carry him before the Grand Jury; as he happens to be in this Court in which the indictment is to be tried, instead of having an Habeas Corpus the Court is to be applied to for a simple order to carry him before the Grand Jury, and your lordships order is regularly granted.
Mr. Justice GOULD. - You do not put that as a motion of mere course?
Mr. MANSFIELD. - Whether there may possibly exist cases in which the Court will not permit, I will not go so far as to say, there may be, I don't know that there are; because this I am sure of, that if the prisoner was in another gaol, and his evidence was wanted before a Grand Jury, that the prosecutor upon applying for an Habeas Corpus might have it most certainly; if there may be cases in which it would not be admitted, they must in truth be of a very extraordinary nature: this order of your lordships has been talked of as if, when it was obtained, it gave some weight and effect to this man's testimony; but your lordships know that you neither do nor can make a man a witness, a man is or not a witness
Mr. Justice WILLES. - All that we know is, he is committed for the same crime, we do not assume it, but we judge from his commitment that he is equally guilty.
Mr. MANSFIELD. - He is committed for the same crime; is it for a court of justice without evidence, or hearing a circumstance of the matter, to know that the magistrate is justified in committing him for that crime, that there was evidence to find him guilty, or that he may not be perfectly innocent? I have never yet heard that the commitment by a magistrate is in any place a presumption of guilt against a man who is committed; it cannot be; it never is heard of in any instance at all that appears; and all that is stated with regard to Robertson, is, that he is committed for the same crime, and so might the most innocent man alive be; nay, innocent men are committed, and consequently upon the commitment of a man for a capital crime, it is the magistrate's duty to bind by recognizance the person that appears to prosecute him who is so committed; the recognizance, as it seems to me, makes no difference in the case at all, because it is the necessary consequence of the commitment; as no magistrate can be justified in committing a man for a capital crime, who does not also bind the person who appears as prosecutor by recognizance, to prosecute the person committed: all that appears before your lordships, is, that this man is committed for the same crime that Dr. Dodd is; there is, as I say, no evidence at all before your lordships of the guilt of this man, that can be taken as any thing like evidence; for this is the first time I ever heard it suggested in a court, that a man who was committed for a crime, was by that commitment disenabled from being a witness; I never heard of such a doctrine being insinuated; suppose it now appears, which it does not, nor can it, that Robertson was equally guilty with Dr. Dodd; I will suppose it, that it appeared that it was possible for any man to know without forming presumption (which he is not authorized to form) that Robertson is equally guilty with Dr. Dodd. I will suppose it appeared so: why is it not the practice in this Court every sessions? where accomplices in the greatest crimes are admitted as witnesses, they are admitted with a degree of reserve, who by their single testimony cannot convict a person.
Mr. Justice GOULD - I wish to see the opinion upon the subject which is in print *; I recollect where the dividing line was there; I held, that the justice of peace, by a constant and established practice, and I have seen things since to confirm that, particularly a very learned treatise by the late Mr. Fielding, concerning the growth and encrease of robberies; he lays it down as a known practice, that they do judge upon all the circumstances appearing before them, which of the criminals to admit as the witness, that matter was dissented from by ten of the twelve judges; but as I understood their opinion to be, it was then to be in the direction, not of the justice of peace, but in the direction of the court of gaol delivery, where it was found necessary, which of the persons committed for a capital crime should be admitted as a witness; I believe Mr. Reynolds was present when that opinion was delivered; he told me, according to his remembrance, that was said by the learned judge here. * Vide The first number of the first sessions in the last mayoralty, and an account of the arguments of counsel, with the opinion of the Judges on Mrs. Rudd's case, by J. GURNEY.
Mr. MANSFIELD. - The question then was solely upon the privilege of Mrs. Rudd, not upon the competency as a witness.
Mr. Justice GOULD. - The true reason of that decision was, that that was a matter for the discretion of the justice o f peace, to hold forth an absolute indemnity.
Mr. Justice WILLES. - I am of opinion the judges went upon the general principle, that in that case, the inferior magistrate was to exercise a discretion. - Mr. Mansfield before you go on, I would mention, that the argument on the part of the prisoner points itself very strong this way, that no person committed for the same offence shall be allowed to be an evidence against a co-criminal without the interference of some legal authority, and in this case, there is no legal authority authorizing him to be a witness.
Mr. Justice GOULD. - In that case, it is expressly said, that by the advice of Mr. Justice Brown, a very learned and eminent man, and Mr. Wylde the recorder, who was afterwards a very learned judge at Westminster-hall, Perrin was admitted a witness against Trew; Perrin confessing himself guilty of that burglary, he was admitted an evidence.
Mr. MANSFIELD. - Advice there, I should suppose, must mean a legal opinion of the court; for a judge, fitting in his judicial character, does not advise prosecutors; it is the province of those in a different place to give advice; judges only give legal opinions, and when it is said by advice, it seems to me it can mean nothing else but a legal judgment.
Mr. MANSFIELD. - Then, all that I can collect from thence, is, that in the opinion of the judges, he was a legal witness; in another way, if it was to depend upon that question, whether he being admitted a witness, is to be prosecuted for other crimes; here it must be determined by the judgment and discretion of the Court, whether the man is so used as a witness, that he is entitled to any protection; that judgment must be exercised according to legal discretion; but where the word advice is used as applied to a man's competency, it must mean that the judgment of the court was, that he was competent; another case mentioned by Mr. Buller is. -
Mr. Justice WILLES. - The other case is, if two defendants be charged for a crime, one shall not be examined against the other to convict him of an offence unless the party examined confess himself guilty, and then he shall be admitted.
Mr. MANSFIELD. - But the charge must mean legal charge, must mean charge upon an indictment, for there is no other way of charging.
Mr. Justice WILLES. - Charge and indictment
Mr. MANSFIELD. - In - reports it is said that a particeps criminis may be admitted as a witness where a person was indicted for treason, and others were concerned in that treason, the party that confessed it might be a witness.
Mr. Baron PERRYN. - There is no doubt of that.
Mr. MANSFIELD. - Then there is an end of all questions as to competency of this man's evidence.
Mr. Justice WILLES. - No doubt as to his competency.
Mr. MANSFIELD. - The arguments against this man were, that he was an accomplice, to which I before gave your lordships what appeared to me to be a satisfactory answer. Although twenty witnesses appear upon the back of an indictment, if one witness satisfies the Grand Jury that the man ought to be tried, they often proceed no further in examining witnesses; whether either of them proved enough to warrant the bill, it is impossible for the Court to say; if your lordships were to stop the proceeding for any thing that now appears, you must presume that the Grand Jury found the bill upon the testimony of a man whom, if there be an objection to, they ought not to have heard; now that presumption in law does not authorize your lordships at all, because if the Grand Jury were to examine 20 witnesses, 19 of whom should prove nothing, yet their names must appear upon the back of the indictment; and your lordships have no ground now upon which you can presume that the Grand Jury did find the bill upon a circumstance that they ought not to have heard; and unless therefore your lordships can do that which the Grand Jury are not authorized to enable you to do, unless you can yourselves say, that the Grand Jury have founded this bill upon an exceptionable man's evidence, supposing there was any exception to him, unless you can say that there is no foundation for the application now made, which it is clear you cannot say, because the Grand Jury may have paid no attention to more than one of the witnesses; and if upon the evidence of any one, however they might disregard the rest, there was such a ground appeared to them, as made it fit for them to find the indictment, they would be bound to find it. I have heard it said by one of my friends in argument, that it is totally immaterial, as Robertson's name appears here, whether the Grand Jury believed him or not; whether what he said was material or not, is nothing to the purpose; I beg leave to say the contrary, the form of business is, the witnesses are sworn, and their names are put upon the indictment before they go in to the Grand Jury, the Grand Jury then call the names appearing upon the indictment; they don't often examine them all; they examine as many as they think proper, and it is impossible for your lordships to say, that the Grand Jury founded the indictment upon this, or that man's evidence, or to know whether they had a legal authority for finding the bill; therefore I trust your lordships will be of opinion that this trial is to go on, recollecting that this is admitted to be the first attempt of the sort that ever was made for rejecting a bill upon a supposed knowledge of what passed before the Grand Jury, and I submit to your lordships that it is entirely without authority.
Mr. Justice WILLES. - Mr. Davenport, before you go on, tell us if you know of any case where a prisoner committed as a principal has been admitted an evidence against a person concerned with him in the same offence, without the interference of a magistrate or the direction of the Court before whom the matter is to be tried?
Mr. DAVENPORT. - I hope to satisfy your lordships, that the constant practice has always been so; it depends upon the practice, and not upon any written authority.
Mr. Justice WILLES. - The clerk of assize has come to me on the circuit, and said such a justice of peace has examined this matter, and wishes, if you have no objection to it, that one prisoner may be admitted an evidence against the other; then I always pay that deference to the discretion of the justice, unless the circumstances make it improper to do as he has desired: sometimes the clerk of assize has brought me the informations taken by the justice of peace; I look over them carefully and exercise my discretion, whether such a person ought or not to be admitted an evidence against a co-defendant, and if I see there is no probability of convicting him by the
Mr. REYNOLDS. - The judges were of opinion that every accomplice, or every man charged with a felony, that was intended by the justice to give evidence, should notwithstanding that be committed as a principal, and they mentioned as a circumstance, suppose such a man broke gaol, can he be indicted for a felony? now with regard to the orders for removing persons where it appears by the calendar, that they were committed expressly to give evidence; orders have always been granted for their being removed to the proper Jury, without asking any thing of the Court; but I never knew an instance in my life where two persons were committed as principals, that ever an order was made of course, or was ever done without the particular directions of the judges to the officer.
Mr. Justice GOULD. - I have had abundance of application from the Grand Jury upon the circuit; they came to me, I remember, at Lancaster particularly three or four instances; they said, here are such persons committed, and without the evidence of one or other it will be impossible to find the bill; then upon reading the depositions and informations, I have ordered that man to be admitted an evidence.
Mr. DAVENPORT. - My lord, with respect to the carrying of Robertson before the Grand Jury; the mode of bringing him thither has created this confusion; an application in consequence of our advice was made to this Court, not as it is misunderstood, to admit him, for that was not our advice, but merely to acquaint the Court that that was the intention of the prosecutor; we conceiving, and if we are wrong, the criminal law in this respect, I hope, will be set upon a more certain footing, that the prosecutor had a right to adduce what witness he pleased; and that the law only could reject him upon the foot of an accomplice; that I conceive to be the law, and stand here to learn if it be not; taking that to be so, and that it is our error, if there be one, for I would wish in the hearing of such an audience as this, that the innocent officer should not be reflected upon, nor the parties who are concerned in this prosecution, for they are at least as innocent and irreproachable, I will venture to say, as any man that would venture to traduce them, what have they done to produce not only such appellations, but it is publickly given out in the papers, that they had surreptitiously obtained the order of this Court: my lords, out of decency and out of respect, and as a lawyer, I conceive that nothing but decency and respect could have made it necessary for them to apply to the Court, I take it to be the common practice, and I shall be corrected if I am wrong, that for all prisoners in this gaol, necessary to be carried to Hicks's-hall before the justices, there is an order of course at the sessions upon a 2 s. fee; to send down their officer, their deputy, the lowest, the meanest man they have amongst them, to fetch that prisoner from the keeper of Newgate, to give his testimony, and to bring him back.
Mr. Justice GOULD. - Is that so? for I asked that question of Mr. Akerman, who has been gaoler here, as he informed me, twenty-two or twenty-three years, and he says positively, that there never was such a thing done when a man was in Newgate without an order of this Court, that it was so in all his experience.
Mr. DAVENPORT. - Did he inform your lordships that there ever had been such an order from this Court.
Mr. Justice GOULD. - I take that for granted.
Mr. Justice WILLES. - The Justices at Hicks's-hall could have no power to send such an order for Mr. Robertson, because he is a London commitment.
Mr. MANLEY. - I speak with respect to the practice; when we came to the Quarter Sessions we waited about an hour and half for bringing up this prisoner; we were told that we might wait till eternity, that he never could be brought before the Grand Jury upon the order of this Court, that it belonged to that Court, and without we paid for that order we might wait for ever; I paid for that order, and he was brought up.
Mr. COLEPEPER. - I do not remember that any justice at Hicks's-hall ever gave an
Mr. Justice WILLES. - Certainly this order was of no validity, in fact it was not obtained, nor drawn up by the direction of the Court.
Mr. DAVENPORT. - I mentioned what I know to be the practice, whether properly or improperly done is totally beside this argument; I mentioned it as I professed it, merely for the sake of the exculpation of those who took it to be right; and I go farther, that all the counsel at the table, on one side and the other, thought it right. As to the importance of the order, the validity of it, or the authority of those who issued it, I take to be beside this question, because where a bill, which, upon its face on the parchment before your lordships, appears to be a legal one, and above exception, there is no power in any court to inquire how that bill was obtained; it is, in my judgment, totally immaterial. The fact is, the witness Lewis Robertson was at Hicks's-hall; he was before the Grand Jury; had he been brought there by Mr. Akerman without authority, is it an objection to the witness, or his examination? had he escaped from Mr. Akerman for that purpose, and came back again, is it an objection to his competency, or to their examination of him? or can the Grand Jury reject him, and say, how are you brought here? be it therefore by a wrong in law, or be it by a right in law, the fact is, he was there; and, as I have stated before, if, Mr. Akerman the keeper of Newgate, against the duty of his office, if the Quarter Sessions, against the authority they bear, had taken him there, if the prisoner had broke the gaol, and had gone there, still my argument is this, that being there there is no other question, but is he competent or incompetent? My Lords, that is the question here, and will your lordships now say, that the Grand Jury were themselves not indictable, if they had rejected the witness upon that ground? my Lords, I could not have defended a Grand Jury who had rejected witness offering his testimony, upon any ground of legal incompetency, I should have stood in an aukward situation as counsel for such a Grand Jury; if I am wrong I shall be corrected in that, if I am right, then the Grand Jury did their duty in the examination, your lordships will do yours in trying the facts upon the parchment, to which there is no objection, at least at present, made; if there be any, I am sure for one, whatever may be in favour of the prisoner, from whatever quarter it comes, I shall be perfectly satisfied; the only fear I ever possessed is, not that a prisoner should escape, but lest it should be my fault to convict him. The witness, having been examined, is now objected to, not as incompetent here, for then the gentlemen are before their time in the objection; when he is brought here it is time enough to argue, that, without your lordships order, he stands at your bar as a witness; I say, that is the time when the objection is to be made: I hope when that time comes, the objection will be answered; I feel myself, in my own judgment at least, very capable of answering it upon principles of law, upon the received and universal practice in the little experience I have had; then, my lords, if the gentlemen are before their time in the objection, we are so far right, that we are in possession of a bill found by a Grand Jury competent to examine witnesses, competetent to find, and competent to return it: from such a Grand Jury this bill comes. My lords, it has been said, and I subscribe to the doctrine, that if there is an outlaw upon the Grand Jury, if there is one that by law is no grand juryman, that it vitiates the indictment, what is the solid and substantial sense of the objection? for cases may be quoted for ever, lines may be produced out of books, but they will want foundation and sense when they come to be examined; and what is the sense of the objectors? that the grand juryman being no grand juryman at all, why there was no Grand Jury. What is the law then? I say, that as to objections arising from the incompetency of the Grand Jury, it goes to this solid plain position, and indeed all law is resolvable, when understood, into the plainest positions; it is not the law for this or any other country, if it is not intelligible to every man's capacity; it requires some pains to trace and
Mr. Justice GOULD. - Mr. Howarth, you see the counsel for the crown insist upon going on with this indictment, found as it is; suppose conviction should follow upon this trial, to be sure the Court will save the question, whether Robertson was improperly and illegally produced before the Grand Jury, for the opinion of all the judges; but it is not for the Court to give advice one way or the other; - the Court give no advice, but the counsel for the prisoner proceed upon this indictment at their peril.
Mr. Baron PERRYN. - Mr. Mansfield, you will take into your consideration, that if you proceed upon this indictment, and the judges afterwards should be of opinion that it ought not to have been proceeded upon, because it was improperly obtained, the consequence will be, that the prisoner can never be tried upon any other indictment for this crime, and therefore this prosecution must be final; whereas if you have any objection in your mind respecting the propriety of proceeding upon this indictment, another indictment may now be preferred before the Grand Jury, and you may now make your application to this Court for the purpose of producing Lewis Robertson as a witness before that Grand Jury; and I will freely own my sentiments that a judge has no right to give his advice, whether a person's testimony is sufficient to convict another; but when the trial comes on, he is then to form his idea of the competency of that evidence; and I will never, while I am a judge, give my opinion what evidence ought to be produced: and the construction put upon what was quoted from Lord Hale is, that what is said by the Court before trial could not be given by way of advice, but only when he is brought to trial: it is contrary to the constitution that the opinion of the judge should be taken before the trial; and I should have no difficulty, I own, whatsoever, to pronounce an order for taking Robertson out of the custody of Mr. Akerman to be produced before the Grand Jury; and my idea of it is, that it would be an order of course, provided he had been in our calendar; and all the litigation of this day has proceeded from too great and an improper lenity to the prisoner at the bar in not putting him upon the footing of other prisoners, by bringing him here six days before the sessions; and whoever was the author of that lenity has produced all this confusion. You will consider whether you will proceed upon this or prefer another bill.
Mr. HOWARTH. - I have advised with the gentlemen with whom I have the honor to be of counsel for Dr. Dodd. We made this objection to your lordships under the hope that it had some weight and substance in it; I believe all of us are rather the more confirmed in that objection by the arguments of the gentlemen on the other side; and we are willing and desirous, on the part of Dr. Dodd, that the trial should proceed, if your lordships will reserve the question for the opinion of the Twelve Judges.
161. WILLIAM DODD , Doctor of Laws , was indicted for that he on the 4th of February instant, at St. James, Westminster , feloniously did falsely make, forge, and counterfeit, and cause and procure to be falsely made, forged, and counterfeited, and willingly act and assist in the false making, forging, and counterfeiting a certain paper writing, partly printed and partly written, purporting to be a bond, and to be signed by the Right Honourable the Earl of Chesterfield , with the name of Chesterfield, and to be sealed and delivered by the said-Earl; the tenor of which said false, forged, and counterfeit paper writing, partly printed and partly written, purporting to be a bond , is as followeth (that is to say)
'Know all men by these presents that I the
'Right Honourable the Earl of Chesterfield
'of London, Banker, Esq; in the sum of eight
'thousand four hundred pounds of good and
'lawful money of Great Britain, to be paid to
'attorney, executors, administrators, or
'assigns, for which payment to be well and
'faithfully made I bind myself my heirs, executors,
'and administrators firmly by these
'presents, sealed with my seal, dated the fourth
'day of February in the seventeenth year of
'Third, by the grace of God of Great Britain,
'faith and so forth, and in the year of our
'Lord one thousand seven hundred and seventy
'hath contracted with the above bounden the
'Earl of Chesterfield for the absolute purchase
'of one annuity or clear yearly sum of
'seven hundred pounds of lawful money of
'Great Britain, free from all taxes and deductions
'whatsoever, payable quarterly for
'and during the natural life of him the said the
'Earl of Chesterfield, at and for the price or sum
'of four thousand two hundred pounds, and
'which said sum of four thousand two hundred
'the said the Earl of Chesterfield at the time of
'the execution of these presents; the receipt
'whereof is hereby acknowledged. Now the
'condition of the above written obligation is
'such, that if the above bounden the Earl of
'Chesterfield, his heirs, executors, or administrators,
'do and shall well and truly pay or
'his executors, administrators, or assigns, one
'annuity or clear yearly sum of seven hundred
'pounds of lawful money of Great Britain by
'four even and equal quarterly payments on
'the respective days and times following (that
'is to say) on the fourth day of May, the
'fourth day of August, the fourth day of
'November, and the fourth day of February
'from henceforth in each and every year for
'and during the natural life of him the said
'the Earl of Chesterfield; and also a proportionable
'part of the last quarterly payment of
'the said annuity or clear yearly sum of seven
'hundred pounds up, to, and until the day
'of the decease of him the said the Earl of
'Chesterfield, without any deduction or abatement
'whatsoever; the first payment thereof
'to begin and be made on the fourth day of
'May now next ensuing the day of the date
'thereof, then the above written obligation to
'be void, otherwise to remain in full force and
Sealed and delivered by the Right Honourable the Earl of Chesterfield in the presence of
with intention to defraud the said Earl against the statute, &c.
3d Count. For feloniously uttering and publishing as true the said forged bond with intention to defraud the said Earl (knowing the same to be forged, &c.) against the statute, &c.
5th Count. For feloniously forging and counterfeiting on the same day and place a certain paper writing, purporting to be an acquittance and receipt for money (to wit) 4200 l. and to be signed by the said Earl of Chesterfield; which said forged and counterfeited paper writing, purporting to be an acquittance and receipt for money, is in the words and figures following (that is to say)
'Received the 4th day February, 1777, of
'thousand two hundred pounds, being the
'consideration money above-mentioned to be
'paid by him to me, I say received by me
with intention to defraud the said Earl, against the statute, &c.
7th Count. For feloniously uttering and publishing as true the said forged and counterfeited paper writing, purporting to be an acquittance and receipt for money with intention to defraud the said Earl (knowing the
Mr. MANSFIELD. - May it please your Lordship and Gentlemen of the Jury, this as you have heard already is an indictment against the prisoner at the bar, Dr. Dodd, for the crime of forgery, which in the words of the indictment is forging, and causing or procuring to be forged, and aiding and assisting in forging a false instrument called a bond; there is another charge for forging a receipt, the bond and receipt relating to one another, being two different instruments: the indictment charges him as being a forger of those two instruments, as assisting in forging them, and as publishing them knowing them to be forged; to this indictment Doctor Dodd has pleaded that he is Not guilty; and you are now upon the evidence which shall be brought before you, to decide whether Dr. Dodd is, or is not guilty of either of these crimes so imputed to him. As this prosecution and the transaction which gave occasion to it has been made the subject of very general discourse, and has been so circulated in the papers, that there is scarce any man at all that is acquainted with what passes in this city, but supposes himself to know very much about the crime imputed to Dr. Dodd, and from the stories that have been circulated, from the representations that have been made of it, judgments are very apt to be formed prejudicial to the person upon whose life you are now to determine, it is very much to be lamented that it is impossible to keep transactions of this fort from being thus made the subject of public talk, because from thence prejudices are very apt to arise in the minds of those who perhaps afterwards may fit as you do in judgment upon the matter, and I mention this to you merely for this reason, because I myself, as well as the prosecutor of Dr. Dodd, would be very sorry that he or any man standing in his situation should suffer the least prejudice from any thing that hath been said or heard before the actual trial; and I wish you therefore upon the present occasion so to judge and so to act, as if that which you will now hear from the witnesses was the first relation that had ever reached your ears concerning this matter; suppose it now to be intirely fresh, and that this is the first moment of your lives in which you knew that Dr. Dodd was to be brought to a trial under an accusation of forgery; it would be a great pleasure to me, I am sure it would to those, who for the sake of justice alone carry on this prosecution, to find that the evidence should be such as would in your judgment warrant you to pronounce that Dr. Dodd is not guilty of the crime that is imputed to him. On the other hand, if the evidence should be such as fully and beyond all doubt evinces the guilt imputed to him, then, however you and every man may lament that a gentleman of his function and character should descend to the commission of such a crime, yet uneasy and disgustful as the office is, and sorry as you may be to perform it, you will do your duty and say, that Dr. Dodd is guilty as he is proved to be: I am indeed, gentlemen, very much afraid; that though I sincerely wish it may be in your power to acquit the prisoner, that consistently with a very few plain facts that I have to state to you, it will be utterly impossible for any man who hears the story proved to think him so; it will be enough either to prove him to be the person who forged, or who published the instrument or the receipt, knowing them to be forged; the crime is the same in the judgment of the law, the guilt in point of conscience is the same, the punishment to be inflicted is the same, but I am afraid there will be no doubt but this unfortunate gentleman will be proved to be certainly the author, the forger, and likewise the publisher. The facts by which this will be made out to you are but few; the bond is for a large sum of money, the sum of 4200 l. purporting to be a bond from Lord Chesterfield to Mr. Fletcher. The receipt is for 4200 l. paid by Mr. Fletcher as to my Lord Chesterfield, a receipt purporting to be a receipt of my Lord Chesterfield; it is a bond for an annuity of 700 l. a year, and 4200 l. was the sum to be raised upon it; the bond apparently is signed by Lord Chesterfield; it is signed by the name of Chesterfield; it is attested by Dr. Dodd; it is attested also by a Mr. Lewis Robertson ; now, when it will be proved to you, as it will be most clearly byWilliam Dodd , the name of the prisoner now standing before you, was written by himself, as his hand-writing is extremely well known, and that hand-writing will be very clearly proved; now, gentlemen, if the case rested there, unless it was in the power (which for one I wish it might be) of the prisoner at the bar to shew to you that this was not his hand-writing, or that my Lord Chesterfield's signing was really my Lord Chesterfield's, why there would be clear and decisive evidence against him as the forger of this bond; in general so strong evidence as that cannot possibly be obtained to prove a forgery; because, in general hands are disguised, feigned names are used, and it is difficult to make out the signature; but here it will be proved, that the name William Dodd is really and truly the hand-writing of the prisoner. Then if a bond is proved to be forged, if the hand-writing of a man charged as the forger, is proved to be to it as the witness, and he cannot explain it, why, then there is clear and full proof that it is forged by him; and if the case stopt at that point, I am afraid it would be utterly impossible for the prisoner to make out his innocence; but as there are various other circumstances in this case, it is necessary for me to relate them to you.
When this bond first appeared to Mr. Fletcher, or Mr. Peach, who assisted Mr. Fletcher in advancing the money, being signed by the name Chesterfield, with these witness names, Dodd and Robertson, affixed to it, it had the effect, that money to the amount of 4200 l. was advanced. Robertson, I believe, was a broker employed to negociate this matter. After the money had been obtained, and the bond deposited with Mr. Manly, who acted as attorney for Mr. Fletcher, he observed upon the bond a very remarkable blot; there was no particular effect, I think, in this blot, but it was in the letter e in the word seven, which you will observe in the bond: this was upon the 5th of February, the bond bore date upon the 4th; and upon the 5th of February Mr. Manly seeing this, it struck him as something singular; he spoke to Mr. Fletcher about it, and told him that this bond had a very odd blot in it; there were some strokes both above and below the line of the bond, which had a very singular appearance; though they could not tell for what purpose any thing had been done with a pen, yet there appeared scratches with a pen as if something had been done: Mr. Manly talking to Mr. Fletcher about it, Mr. Fletcher wished that another bond might be prepared, fairly and without any blot, and might be carried to Lord Chesterfield to execute: this produced a meeting between Mr. Manly and my Lord Chesterfield upon the 7th of February: upon the 7th of February, Lord Chesterfield seeing this bond, said it was a forgery, and not his bond. The next step which was taken was that which was fit; an information was made before the Lord Mayor; and this bond having first appeared to Mr. Fletcher and Mr. Peach in the city of London, Dr. Dodd and Mr. Robertson were both carried before that magistrate; but before they were carried before the Lord Mayor, Mr. Manly went with an officer, together with Robertson, to Dr. Dodd's, and Mr. Manly then acquainted Dr. Dodd with the business on which he came: Mr. Manly told Dr. Dodd that he was very sorry to attend him upon such an occasion; that it was upon a charge of forgery against him, the forging a bond of Lord Cherfield's. Dr. Dodd appeared, as any one naturally would with such a charge brought against him, very much shocked. He was asked, what it was that could induce him to do this deed? and Dr. Dodd, struck and overwhelmed with a charge so brought upon him, and Robertson being present, whose name appears upon the bond, Dr. Dodd said, that it was urgent necessity had pressed him to it. He then gave some reasons, some tradesmens bills. I think, that he had to pay; that he meant no injury to Lord Chesterfield or any one, that he meant to pay the money back, and had resources by which he
Mr. DAVENPORT. - Pray, my Lord Chesterfield, has your lordship got a release from Mr. Fletcher?
The Earl of CHESTERFIELD. I have (produces it).
Did you see that release executed by Mr. Fletcher? - I did.
[The release from Mr. Fletcher to the Earl of Chesterfield was read in Court; it appeared that his lordship was thereby released from all actions and all demands by Mr. Fletcher upon his lordship from the beginning of the world to this time.
(Mr. Manly produced the bond.)
Has that bond been out of; your sight since you first had the custody of it? - Yes; it has been in Mr. Fletcher's custody as well as mine; it came into my custody on Tuesday the 4th instant; it has remained in my custody ever since, except the night after we made the information; it was left that night, to the best of my remembrance, at Mr. Fletcher's; that was on Friday the 7th; it was locked up in Mr. Fletcher's room; it was locked up in his compting-house to the best of my remembrance with the bills, and he gave it me back again afterwards.
Is that the same bond that you gave to Mr. Fletcher and that you received back from him? - I believe so.
Did you deliver the bond you received of Mr. Manly back again to him? - I did; it was always in my custody till I delivered it back.
Did you intrust it into the hands of any persons? - It was always in the room; it was never out of my sight.
Was it ever out of your custody? - Never.
The Right Hon. the Earl of CHESTERFIELD sworn.
Is the name Chesterfield in that bond your lordship's hand-writing? - It is not.
Was the bond ever produced to your lordship till it was produced by Mr. Manly? - I never saw it till that time.
When was that? - Tuesday the 7th of February.
Did your lordship ever see or deliver that bond at all? - Never.
Is the name Chesterfield to that receipt your lordship's hand-writing? - It is not.
Did you ever see that bond before it was produced by Mr. Manly? - Never.
Your lordship has known him a long time, I believe? - I have.
He was your lordship's tutor, I understand? - He was.
Has your lordship often seen him write? - I have often.
Does your lordship believe that to be his hand-writing? - I believe it is.
Can your lordship form any belief whose hand-writing the name Chesterfield is? - I cannot.
Mr. HOWARTH. I beg to ask Mr. Manly, whether he delivered the bond the first time into the hands of Mr. Fletcher, or left it at Mr. Fletcher's house? - I delivered it to himself, to the best of my remembrance; it was not left at the house for him.
Are you acquainted with Lord Chesterfield's hand-writing? - I am.
Is the name of Chesterfield to that bond his lordship's hand-writing? - No, it is not.
Look at the receipt; is the name Chesterfield to that his lordship's hand-writing? - Neither is this his hand-writing.
SAMUEL LEACROT sworn.
Have you seen Dr. Dodd write? - I don't recollect Dr. Dodd's hand-writing.
Have you seen Dr. Dodd write? - I have.
Look at the name William Dodd in that bond, and tell the Court whether from the knowledge you have of his hand-writing you believe that to be his or not? - From; the similarity of what I have seen Dr. Dodd write, I am inclined to believe it is.
Look at the other name William Dodd subscribed to the receipt; is that in your opinion Dr. Dodd's hand-writing? - In my opinion it is; as treasurer of a public charity, of which the doctor was the founder, I have frequently seen him subscribe his name: the charity is for the relief of persons confined for small debts.
And from the knowledge you have of his hand-writing, you are inclined to think that is his hand-writing? - I am.
I am steward to my Lord Chesterfield; I have frequently seen his lordship write.
Look at that name Chesterfield to the bond and to the receipt, and tell the Court whether you think that is his lordship's hand-writing? - No; I never saw Lord Chesterfield write such a hand in my life.
[The bond and the receipt were read in Court, and compared with the statement of them in the record, with which they literally tallied.]
Council for the Crown. Mr. Manly, you will now be pleased to inform the Court what you know of this transaction? - On Tuesday the 4th of this instant February, the bond that has been produced, with a warrant of attorney and a letter which is in my possession, were left at my chambers when I was not at home, as I was told, by Mr. Peach, who is a Silk-merchant in Bread-street; he came with the Broker, Lewis Robertson , as I was informed, and left them there for me to look at; I found them on my desk when I came home: I was informed that the sum of money had been paid: this was all the information I then had; they were left for me to look at to see if all was right.
COURT. Were they left on behalf of any particular client? - Mr. Fletcher and Mr. Peach are both my clients; I perused the bond, I believe, first: I observed in the condition of the bond a very remarkable blot in the letter e in the word seven, before seven hundred pounds; it was a blot of a remarkable nature; it did not appear to me to be the effect of chance, but the act of a pen, dotted in hair-strokes in a particular manner, as if done by design.
Does that appear in that bond now? - It does.
(The bond is shewn to the Jury.)
Mr. MANLY. The letter (e) is totally obliterated: I thought it a remarkable circumstance, and yet I could see no end it could answer to give me any reason or cause to suspect it was a forgery; however I thought it so remarkable as to be necessary to let Mr. Fletcher know it; accordingly I sent to Mr. Fletcher, and he came to me on the Wednesday evening.
That was next day? - I shewed Mr. Fletcher the bond, and the blot; I asked him what he thought of it? he said it was something very remarkable; I said it was; he said, I think it is best to write over a clean bond, and I will get you to wait upon Lord Chesterfield with it.
Council for the Prosecutor. Tell the Court and the gentlemen of the jury, when it was you first saw Dr. Dodd? - Shall I mention what passed with Lord Chesterfield first?
COURT. I think it will save time to let Mr. Manly tell his story.
You went to Lord Chesterfield? - I did.
Counsel for the Prisoner. Mr. Manly knows very well what is evidence, and therefore I desire he will not enter into any other particulars.
COURT. He is going to give evidence of what he has referred to already, and therefore he may go on without interruption.
Mr. MANLY. On Thursday the 6th of February, I went to Lord Chesterfield's; not meeting with his lordship at home, I took the liberty of writing a note to his lordship, acquainting his lordship with my visit, and the business, and that I should call the next morning at ten; accordingly soon after ten on the Friday morning, I went to Lord Chesterfields,
Counsel for the Prisoner. This is, my Lord, what passed in conversation with Mr. Manly and other persons in the absence of Dr. Dodd, your lordship knows it is not admissible evidence against the prisoner.
COURT. Lord Chesterfield has been already examined as an evidence. They may ask the question of Lord Chesterfield, whether, when the bond was offered by Mr. Manly, he disowned it: this is in the course of the narrative; I shall not sum this up to the jury; but when they bring Dr. Dodd present it will be evidence.
Mr. MANLY. After I left his lordship, I went into the city to Mr. Fletcher, and told him his lordship said it was not his bond, and consulted him what steps he would take about it; Mr. Fletcher, myself, and Mr. Innis went to Guildhall to see if the Lord Mayor was there; Lord Chesterfield said, he supposed Dr. Dodd was gone off, that is the reason I did not apply to him.
COURT. That is not evidence most certainly.
Mr. MANLY. We preferred an information respecting our suspicions and belief of this forgery, in order to get a warrant against the broker Robertson, and Dr. Dodd; upon the information being taken, my Lord Mayor granted a warrant or warrants against them both; before the warrant, I believe, was signed by his lordship, Robertson the broker came into Sir Charles Raymond 's shop; Mr. Fletcher came to me, when I was at the Lord Mayor's house, in Birchin-lane, which is almost next door to Mr. Fletcher's, to acquaint me that Mr. Fletcher desired I would go into the back-room to Mr. Robertson, to talk with him in the compting house.
COURT. What passed between you and Mr. Robertson does not go to affect the prisoner at the bar. - Robertson was taken into custody; when he was taken into custody, he, Mr. Innis, myself, and my Lord Mayor's two officers went to Dr. Dodd's house in Argyll-street; Mr. Robertson and I and one of the Lord Mayor's men in one coach.
COURT. Is Argyll-street in the city of London or the county of Middlesex? - In the county of Middlesex; we were admitted into the house, and Dr. Dodd soon after came down stairs to us; when we were in the parlour together, Mr. Innis, myself, Dr. Dodd, and the officers, and Robertson, I then opened the occasion of our attending him; I told him I was very sorry to attend him upon such an unhappy occasion, it was upon a charge of forgery against him, and Robertson was then in custody for forging Lord Chesterfield's bond; the Doctor seemed very much struck, and was silent some time; I told him the broker laid the whole charge to him; and asked the Doctor what could induce him to do such an act; the Doctor said, urgent necessity.
COURT. Previous to the time when the Doctor said that urgent necessity induced him to act thus, had any promises been made to him of any favour respecting a prosecution? - None at that time; he said urgent necessity; he was pressed to pay some tradesmens bills; that he meant no injury to Lord Chesterfield, or any one, as he meant to pay the money back in three months.
COURT. You are referring to a memorandum, when did you take it? - They are short minutes I made immediately afterwards; he said he meant to return the money in three months time, and had certain resources to enable him to do it.
COURT. At the time you had this conversation with the prisoner, did you shew him the bond that you apprehended to be a forged instrument? - I think I did not; the broker here interrupted him, and said, Doctor Dodd, I desire you will declare my innocence before all present, Doctor Dodd replied, I do, I do; I think those were his very words; he very readily did it, without the least hesitation; I
Had the money been actually advanced by Fletcher upon that security? - The money had been paid upon the Tuesday, and I understood it had been paid, upon my brother or clerks saying it was well executed; when I asked him if he had the money to return as that would be the only means of saving him he answered he had; I then desired him immediately to give it to me; he desired to go up stairs to fetch it, but my Lord Mayor's officer refused to let him go; upon which I desired leave of the officer to entrust him with me up stairs, accordingly we went up stairs; Dr. Dodd immediately returned me six notes of 500 l. each of Sir Charles Raymond and Co. these notes made 3000 l. Dr. Dodd took these notes out of a pigeon-hole in the bureau, or some desk of that sort; I asked him where the remainder was? he then produced his banker's book, and to the best of my remembrance there appeared the sum of 900 l. on the debtor's side of the banker's book; I asked him what he could draw for, whether he had that money at the banker's? he said he could not draw for all that, for he had had occasion to make use of part of the money, but he could draw for five or six hundred pounds; accordingly he drew a draught addressed to the acting partners of the Banking Company in St. James's Street, in favour of Mr. Fletcher or bearer for 500 l. (that 500 l. I received) immediately after Dr. Dodd had given me that draught, we came down stairs, Mr. Robertson the broker then gave me a draught for 100 l. which he said he had received for half the commission.
Was that in the presence of Dr. Dodd? - Yes; that draught was given to Mr. Fletcher, and I understand it was paid; after I had received the 500 l. draught of the Doctor, I went to the Crown and Rolls in Chancery-lane and sent for Mr. Fletcher to come to me.
Where did you leave Dr. Dodd? - I left Dr. Dodd coming out of his own house with Mr. Robertson in custody with the officers; they were to go to some tavern or coffee-house in the neighbourhood till I returned; Mr. Fletcher and Mr. Corry my Lord Chesterfield's solicitor soon after called upon me there; we then went back to my Lord Chesterfield's, and there we learnt that Dr. Dodd was at the York Coffee-house in St. James's-street; we went there, and there we found Dr. Dodd and the officers and Robertson: we ordered a room up stairs, and when we were all up stairs together in presence of all the gentlemen, I asked Dr. Dodd if he could give any security for the remainder of the money; he immediately said he would give any security in his power, he was ready to make any restitution he could; I asked him if he would give a judgment upon his goods, he said he would, or any thing else; he was, in fact, desirous of doing it; he then executed a warrant of attorney to confess judgment as a security for the remaining 600 l. and I believe that was attested by Mr. Corry and myself; after he had given this judgment he said, I think I can draw for 200 l. more upon my banker; I said, if you can it will be much better; the Doctor instantly drew a draught for 200 l. which reduced it to 400 l. that draught of 200 l. was paid the next morning, as I am informed, and have no doubt, there then remained 400 l. and the judgment was the next day entered for the 400 l. and execution taken out.
COURT. I suppose there were goods enough to answer that? - There is a distress for rent and another execution, but I am told there is enough.
Did you afterwards, or when, go before the Lord Mayor? - The next day, Saturday; Lord Chesterfield called upon Mr. Fletcher at Sir Charles Raymond's house; I had a message to come there, and a message was sent to the Lord Mayor to know his lordship's pleasure when he would be attended upon that business; an answer came back that the prisoners were then before my Lord Mayor, which we did not know of; we then went before my Lord Mayor, and were sworn to give evidence.
Was Lord Chesterfield there? - Yes; my Lord Chesterfield, Mr. Fletcher, Mr. Innis, and myself; the Lord Mayor bound over Mr. Fletcher and Mr. Peach to prosecute, and the rest, as I understood it, only to give evidence, the recognizance was taken different.
Was the bond produced before my Lord Mayor? - It was.
W as the bond read? - I don't know; it was laid on the table: the information that was given was read to the prisoner. The Lord Mayor laid the bond before them and asked them many questions.
Do you know whether the examination before my Lord Mayor was reduced into writing? - I did not see that it was; Dr. Dodd when called upon his defence, I did not take it down, but the substance of it was, that he was pressed to pay some tradesmen's bills; he meant no injury to any one, and meant to restore the money.
When the bond was produced and Dr. Dodd charged with forging of it, he admitted the fact, did he? - He did.
What time of the day was it when you first went to Dr. Dodd's house? - I believe between three and four o'clock in the afternoon, I think near four.
When the Doctor was first charged with the crime, before any offer or act towards restitution was done upon the part of Dr. Dodd, it was I think that you said, that was the way to save him? - Returning the money would be the means I told him I thought of saving him.
I need not ask your import of these words, saving him from the consequences of any prosecution? - Yes; I so made use of these words.
Council for the Crown. You said this subsequent to Dr. Dodd's confession? - Yes.
Was any thing said before my Lord Mayor by Dr. Dodd about Robertson? - Dr. Dodd very readily admitted before my Lord Mayor that Robertson was innocent.
Did you go with Mr. Manly to Dr. Dodd's house in Argyll-street or Argyll-buildings? - I did.
When you got to Dr. Dodd's, and were in company with them, do you recollect what passed? what the Doctor said, and what Mr. Manly said?
(The witness refers to some minutes.)
Mr. Justice WILLES - When did you make those minutes? - That evening after the conversation. I arrived in the second coach, when I knocked at the door, Mr. Manly told me, in the passage, that Dr. Dodd had confessed every thing.
Counsel for the Crown. You most not relate what was said by any one, except it was spoken in the presence of Dr. Dodd - I was afterwards in the room with Mr. Manly and Dr. Dodd; Mr. Manly asked Dr. Dodd how he came to do such a thing.
What thing? - The forgery of the bond.
COURT. Had Mr. Manly the bond with him? - Yes.
Did Mr. Manly shew him the bond? - Yes.
COURT. Did he speak of forgery to him? - Yes, he did; Dr. Dodd said it was urgent necessity, and that he was willing to make recompence as far as it was in his power. Mr. Manly asked him where the money was; Dr. Dodd said, he had 3000 l. up stairs in his bureau in notes of Sir Charles Raymond 's and Co. Those notes were made payable 14 days after sight to Lord Chesterfield or order, and were signed by Henry Fletcher , one of the partners of the house; Mr. Manly then asked him what more money he had, he said he thought he could draw for 500 l. more upon his banker, which he did immediately, and gave it to Mr. Manly; we afterwards went before my Lord Mayor.
When you was before the Lord Mayor the last time was Dr. Dodd there? - Yes.
What did Dr. Dodd say then? - He said to this purport;
'I cannot tell what to say in
'such a situation; I had no intention to
'defraud Lord Chesterfield.'
Are those the words the Doctor said? - As near as I can recollect they are; his words were
'I cannot tell what to say in such a situation: I
'had no intention to defraud Lord Chester-field;
'I hope his lordship will consider my
'case; I was pressed extremely for three or
'four hundred pounds to pay some tradesmen's
'bills; I meant it as a temporay resource;
'I should have repaid the money in
'half a year; I have made satisfaction, and I
'hope that will be considered; my Lord
'Chesterfield must have some tenderness towards
Was Lord Chesterfield then present? - His lordship was.
'he knows I love him; he knows I regard
'his honor as dearly as my own; I hope he
'heart, shew clemency to me; there is nobody
'wishes to prosecute; pray, my Lord
'Mayor, consider that, and dismiss me; Mr.
'Robertson is certainly innocent.'
COURT. Are you sure that the paper you have in your hand is not the Morning Post, for I recollect they are the very words inserted in the Morning Post? - No.
I ask you, for form's sake, when Dr. Dodd said what you have given an account of, whether he was not then charged before the Lord Mayor with forging the bond? - He was.
Mr. Innis, if I understood you rightly, you did not go into Dr. Dodd's house, nor see Dr. Dodd till after there had been an interview between Dr. Dodd and Mr. Manly? - I was not there at first; I came in, I suppose, three or four minutes after Mr. Manly; we set out together in two hackney-coaches.
[The six draughts, of 500 l. each, were produced in court by Mr. Fletcher.]
Are those the bills Mr. Manly returned to you? - Yes; They are all signed by me.
Are these the bills that were given for the money raised by this bond? - They are, in part, what I gave to Mr. Peach on that account.
COURT. As the annuity of 700 l. a year was to take place immediately, how came you to make those bills payable at 14 days sight? - It was the agreement with the Broker.
By that means you got the interest of 3000 l. for 17 days; hereafter a question might arise against you upon that for usury. Those six notes that have been produced were the notes that you paid for the original purchase of the annuities? - Yes.
Mr. PEACH sworn.
Mr. MANSFIELD. You left that bond, I believe, at Mr. Manly's chambers? - Yes.
COURT. Mr. Fletcher, is it not usual in these kind of transaction to have an attorney of your own to see the instruments executed? - Most certainly.
You did this without an attorney? - I mentioned Mr. Manly's going to see the deed executed: Mr. Robertson said he could not; I agreed to that, upon condition that he brought a letter from my Lord Chesterfield that his lordship had executed the bond, and desired the money to be paid to Mr. Robertson: he did bring me such a letter; that letter was left at Mr. Manly's chambers with the others; Mr. Peach carried them (the letter was produced in Court, and identified).
To the Right Hon. the Earl of CHESTERFIELD. Is the name Chesterfield signed to that letter your lordship's writing? - It is not.
Do you believe that letter to be the handwriting of the prisoner? - I don't know whose it is.
When did you first see that bond? - I left this bond with Dr. Dodd upon Monday the 3d of this month in the evening to be executed; I carried it to Mr. Franco's in Fenchurch-street; Dr. Dodd dined there on the Monday; at the same time I carried a letter which Mr. Fletcher directed me to write; I wrote it in my own hand; it contained an order for me to receive the money.
Did that bond appear to be executed by my Lord Chesterfield at the time you carried it to Mr. Franco's? - No; it was a bond filled up, but not executed.
Look at the letter; is that the letter? - It is.
Did you receive again the same bond and letter from Dr. Dodd? - Yes, at his own house in Argyll-buildings, on Tuesday the 4th.
I perceive that your name is to that bond? - Yes.
At whose desire did you put your name to it? - I asked Dr. Dodd if the bond had been regularly executed, when he presented it to me, I desired him to put his name as a witness to it.
When the bond was produced to you on Tuesday, was the name of Chesterfield subscribed to it? - It was, and also to the receipt for the money.
For what purpose did you receive the bond of Dr. Dodd? - To receive the sum of 4200 l.
COURT. You did not subscribe your name
And it was given to you to subscribe by the Doctor? - The Doctor did not ask me to subscribe it; he put his own name to it; then I said, Doctor, as you have seen this regularly executed I may put my name to it? he said, yes.
Can you recollect whether there was that blot upon the word seven at the time you subscribed your name? - I don't remember the blot.
Did you receive the money in consequence of it? - I did, and carried it to Dr. Dodd.
COURT. Have you had other transactions of this nature, in negociating the sale or loan of annuities besides this? - Yes; I have done business of this kind.
Is it your practice, in transacting that business, to subscribe your name as a witness to the execution of an instrument which you have not seen executed? - No; it is not always the case, but I have done it.
Then you deceive the persons who place confidence in you; did you ever do it in any other instance? - Yes; I have.
COURT. You have experienced that it is a very dangerous thing. Look at those six notes; are they part of the 4200 l. you received of Mr. Fletcher? - These are the notes; they are at 14 days sight.
Are they accepted? - No.
COURT. Two of them I see are indorsed, Chesterfield; my Lord Chesterfield will inspect them, and say whether they are indorsed by his lordship.
Lord CHESTERFIELD. They are not.
COURT. Dr. Dodd, this is the time for you to make your defence to what the witnesses have said in support of the charge against you; it is not the province of the counsel to open the case of a criminal in your situation, but you may contradict any thing that has been given in evidence against you; and afterwards by counsel may examine any witness in support of the case you have to state to the Court; I shall with great patience hear your witnesses; and also hear any thing you have to urge in your defence.
My lords and gentlemen of the jury. Upon the evidence which has been this day produced against me, I find it very difficult for me to address your lordships; there is no man in the world, who has a deeper sense of the heinous nature of the crime for which I stand indicted than myself; I view it, my lords, in all its extent of malignancy towards a commercial state like ours; but, my lords, I humbly apprehend, though no lawyer, that the moral turpitude and malignity of the crime always, both in the eye of law, of reason, and of religion, consists in the intention. I am informed, my lords, that the act of parliament on this head runs perpetually in this stile, with an intention to defraud. Such an intention, my lords, and gentlemen of the jury, I believe has not been attempted to be proved upon me, and the consequences that have happened, which have appeared before you, sufficiently prove that a perfect and ample restitution has been made. I leave it, my lords, to you, and the gentlemen of the jury, to consider, that if an unhappy man ever deviates from the law of right, yet, if in the single first moment of recollection, he does all he can to make a full and perfect amends, what, my lords, and gentlemen of the jury, can God and man desire further? My lords, there are a variety of little circumstances, too tedious to trouble you with, with respect to this matter. Were I to give a loose to my feelings. I have many things to say, which I am sure, you would feel with respect to me: but, my lords, as it appears on all hands, as it appears, gentlemen of the jury, in every view, that no injury intentional nor real has been done to any man upon the face of the earth, I hope that therefore you will consider the case in its true state of clemency: I must observe to your lordships, that though I have met with all candour in this Court, yet I have been pursued with oppressive cruelty: I have been prosecuted after the most express engagements, after the most solemn assurances, after the most delusive, soothing arguments of Mr. Manly; I have been prosecuted with a cruelty scarcely to be paralleled: a person avowedly criminal, in the same indictment with myself, has been brought forth as a capital witness against me; a fact I believe totally unexampled. My lords, oppressed as I am with infamy, loaded as I am with distress, sunk under this cruel prosecution, your lordships and gentlemen of the jury, cannot think life
Mr. HOWARTH. - My lord, upon the inspection of the bond, they don't appear to me to be intirely the same words that they are supposed to be in the record; there is a blot in the word seven, which covers part of the s and the whole e.
COURT. That is matter for the consideration of the jury; they must be satisfied they are clearly the same, or else the charge in the indictment is not supported.
Mr. MANSFIELD. - The contents of the bond follow as near as may be the bond, by having a blot in the very same word, whatever it is, as nearly imitating the blot on the bond as possible; the counts upon the receipt are separate counts, and they are totally distinct from the bond.
The Jury, after having withdrawn about ten minutes, pronounced the prisoner GUILTY: they at the same time presented a petition to the Court, humbly recommending the prisoner to his Majesty's mercy .