The Proceedings of the Old Bailey

 

684.   THOMAS BRADY was indicted, for that he well knowing that one   Michael Power deceased, had served our Lord the King on board the Pallas, and that certain wages and pay were due to him for such service, on the 18th of November with force and arms the said   Thomas Brady came before the Worshipful   James Harris , then surrogate to the Right Worshipful   Peter Calvert , Esq; L. L. D. and then and there, unlawfully, willingly, knowingly, and feloniously did take a false oath, that the said   Michael Power was dead without making any will, and that he the said   Thomas Brady was his natural brother and next of kin, the said   James Harris having lawful authority to administer such oath, whereas, in truth and in fact, he the said   Thomas Brady , was not the lawful and natural brother of the said   Michael Power , with intent to obtain letters of administration, in order to receive the said wages and pay, due and owing on account of his said service .

A Second Count for that he supposing certain wages and pay were due, &c.

The Case opened by Mr. Silvester.

  JAMES MACKINTOSH sworn.

I am a Navy Agent, I remember the prisoner applying to me, to the best of my knowledge, I think it was about the beginning of November last, he came to me along with a seaman whom I had done business for sometime before, the seaman introduced him to me, upon asking him

what his business was, the prisoner told me he had a brother who died on board his Majesty's ship the Pallas, and that he wanted to administer, and recover his brother's wages, I asked the prisoner if his parents were alive, and where they lived, he told me that he was born in Waterford, in Ireland; but his father and mother were both dead, I asked him if he had any sisters or brothers alive, or any other relations, and he declared not, I then asked him his name, he told me his name was   Thomas Power , I then pointed out to him the nature of the business in regard to his having a proper certificate, to prove that he was the lawful brother, before the Commissioners would pay him the brother's money; notwithstanding the administration might be granted; but in confidence of the man whom I took to be a very honest man, and the good story he told me, I thought he was in a very fair cause, and as such I did as I do in general to people that I know perfectly well, and know them to be honest, as I go to the Commons in general, I am their own bondsman when there is no will; I appointed the day for him to attend me at the Commons, telling him at the same time, that while the administration was getting ready, he was to get the certificate I mentioned; the man attended me at the Commons the next morning at nine, I went with him to Mr. Shepherd's, and he and the prisoner went out together.

Are you sure that is the man that applied to you to take out the administration by the name of   Thomas Power ? - I am confident of it, very confident.

How soon after this did you see him again? - I believe it may be a month or so, but I cannot ascertain the time, I had occasion to be at Mr. Hooper's office, he is another Navy agent, as soon as I came into Mr. Hooper's office I perceived the prisoner sitting in a chair and he seemingly stooped his head, I came into the middle of the office and turning round, said to him Power how come you on with the bargain between you and the Jew; as I understood he had sold the letters of administration to a Jew after being granted, he made me no answer; I turned round and asked him a second time; upon which Mr. Hooper's clerk asked me his name, signifying at the same time that he had come and employed them to recover prize money by the name   Thomas Brady , I told them the circumstances of the case as I considered of it, and the next day I called at Mr. Hooper's office.

What did the prisoner say? - He did not make any particular excuse before me.

  JOHN SHEPHERD sworn.

I am a Proctor in Doctor's Commons.

Do you remember this Mr. Mackintosh coming to you with the prisoner? - No, Sir, I do not, I have so many applications of that nature that I cannot recollect it, I attend to other gentlemen's business as notary, Mr. Mackintosh does business with me frequently, we always sign the warrants.

- RODD sworn.

Produces the warrant from the Register of the Prerogative Court of Canterbury.

Mr. Shepherd. It does appear from this that I was present when a man calling himself   Thomas Power took the usual oath, namely, that   Michael Power was dead, a batchelor intestate without parent, and that he was the natural and lawful brother of the deceased, I saw it signed because I have witnessed it, and it appears Dr. Harris signed it.

Court. But who that man was you do not know? - No.

  JOHN DUROSS sworn.

Here is a bond with a mark executed to it by the name of   Thomas Power , witnessed by   James Mackintosh and   Thomas Cruso .

Mr. Mackintosh. This is my hand writing.

(The bond handed up to the Court.)

Court to Shepherd. Did you see these parties execute it? - I did.

Do you know the prisoner? - I cannot take upon myself to say I do, but the man

who called himself   Thomas Power , made that mark opposite that bond, but who it was I cannot say.

  CHARLES PINKSTON sworn.

I am clerk to Mr.   Hooper the Navy agent, I know the prisoner, he applied to me on the 5th of January, in the name of   Thomas Brady , and gave me an order and brought a certificate signed by the Purser of the ship, the Pallas, I have the certificate in my pocket, and an order to receive some prize money; some little time after he applied to me to know if I had received some prize money, and while he was there Mr. Mackintosh came in and seeing the prisoner there called him by the name of Power, as soon as he said Power I said that is not his name, he came to us in the name of   Thomas Brady , and I have an order and certificate which I can produce, and I did, and shewed them to Mr. Mackintosh.

Had you any conversation with the prisoner? - Yes, Sir, I asked him how he came to deny his name, he said nothing, I told him I suspected there was something wrong, then he told me that he run from a former ship and changed his name to   Thomas Brady , he said his name was   Thomas Power , and that he really was brother to the man; that he said before the Lord Mayor when he was examined.

  JASPER ALLEN sworn.

I have the ship's book of the Pallas.

Is there any such man of that ship as   Thomas Brady ? - Yes, Sir.

How is he rated? - Able seaman.

Is there a man of the name of   Michael Power ? - Yes, Sir, he is rated rated ordinary and able.

From what ship did Brady come, from the Pallas? - From the Blenheim, he was discharged from there regularly he had no R. against him, he came there from the Bienfaisant he does not appear to have run from any of these three ships.

  WILLIAM LIVINGTON sworn.

What ship did you serve on board? - The Pallas at sea, I remember the prisoner he went by the name of   Thomas Brady , I knew   Michael Power .

Had he any brother on board that ship? - Not to my knowledge, I am sure that was the man that went by the name of   Thomas Brady ; on the 11th of November 1783, the ship's crew were paid off.

Did you ever know him by any other name than Brady? - No.

  JAMES CASEY sworn.

I served on board the Pallas from the year 1781 to 1783, I remember the prisoner, I think he was on board when I went on board, he went by the name of   Thomas Brady , he never went by the name of Power, I knew Power, he was Cooper's mate on board the ship.

  JOHN MACUSE sworn.

Do you know the family of Power? - Yes, there were no other brothers but William, and John, and Michael.

  MICHAEL WARREN sworn.

I apprehended the Prisoner, he told me his name was   Thomas Brady ; and he had had twelve pounds of the money of Power, I asked him how he came to do it, I was very sorry for him, he said it could no t be helped it was too late.

Court. How do you mean that he had had twelve pounds of Power's money? - Why of a Jew.

Court. That is no confession? - He said his name was   Thomas Brady , and he had twelve pounds of the money of a Jew.

Did he say how he had it? - Some in money and some in goods.

Prisoner. I have no witnesses, I did not know I should be tried so soon.

Court. Gentlemen of the Jury, this offence is made capital by an act of parliament; to take a false oath in order to obtain letters of administration to receive any wages or prize money due to seamen; and by which act of parliament you see that which before was but a perjury, that particular species of perjury is converted into a particular felony; but it is incumbent on the Prosecutor to fit the law exactly to the

fact, and to prove every circumstance which is necessary to bring it within that law, by a clear, precise, and exact evidence, and by the best evidence; now in this case the very jutt of the crime is taking a false oath; and I never remember any instance in fact, where an indictment for perjury has been supported without direct and positive proof that the party took the oath, or where any attempt has been made to supply the defect of proof, in that circumstance by the supply of other proof from which it might be probably inferred; now in this case there certainly is no direct express evidence that the prisoner ever took the oath in question, there is circumstantial evidence; the fact of taking the oath requires distinct proof as well as that of the execution of the bond, and Mr. Shepherd's memory not serving as to the person that took the oath, and Dr. Harris not being here, there is no direct proof of it, and there is a possibility certainly that the prisoner might go through all the rest of the fraud, and avoid the circumstance of taking the oath, supposing he knew the taking the oath was a capital felony; if this was an indictment for perjury, and the evidence was to stand as it does now, I should be of opinion that they were bound to give precise and positive proof, that the prisoner was the person that took the oath; the part where the proof is defective, is the very point on which the indictment turns.

Mr. Sylvester. I wish this case might be reserved.

Court. There is nothing to save.

Mr. Sylvester. It is matter of law whether the evidence is sufficient.

Court to Jury. Gentlemen, if you are satisfied notwithstanding the observations I have stated, that the evidence is sufficient to prove that this man actually took the oath, in that case you will find him guilty; but I am of opinion that unless it is clearly proved he took the oath, you ought to acquit him.

NOT GUILTY .

Tried by the London Jury before Mr. RECORDER.