William Dodd, [nicknamed the Macaroni Parson] (1729–1777), Church of England clergyman and forger, was born in Bourne, Lincolnshire, the eldest of the six children of the Revd William Dodd (1703?–1757), vicar of Bourne. He was probably born on 29 May 1729 (Howson), though the parish register for Bourne shows that a William Dodd, son of William Dodd, was baptized at Bourne on 23 May 1728 (IGI). His mother was possibly Elizabeth Dickson or Dixon, who married a William Dodd on 3 April 1726, perhaps at Bourne (or at Norton Disney or Surfleet in the same county).
Dodd entered Clare College, Cambridge, in 1746 as a sizar, and in 1749 he was entered in the first tripos list as a wrangler. He was made MA in 1759. On leaving Cambridge in 1749 he went to London, where he lived for the rest of his life. There he sought to pursue a literary career which had begun at Cambridge with Diggon Davy's Resolution on the Death of his Last Cow (1747), a poem on foot-and-mouth disease. In London he rapidly produced a co-authored student crammer of philosophical texts and wrote both a farce on Sir Roger de Coverley, which was apparently never staged, and A New Book of the Dunciad. In 1751 he married Mary Perkins (d. 1784), the daughter of a verger of Durham Cathedral, and his initial literary success encouraged him to lease an expensive house in Wardour Street. The fatal pattern was thus established of over-extending his limited financial resources in pursuit of advancement. It quickly became clear that his writings would not support him so he returned to Cambridge, he was ordained at Gonville and Caius College on 19 October 1752, and he became curate at All Saints', West Ham. He continued to write and, while his talent for originality was limited, he did have a facility for extracting from the work of others, most successfully in The Beauties of Shakespeare (1752), a collection of quotations which stayed in print well into the twentieth century. This book proved a boon to those who wished to demonstrate erudition without the inconvenience of actually having to read the plays, although it did provide Goethe with his first exposure to Shakespeare. Dodd also tried his hand at fiction and published The Sisters (1754), a novel whose dullness at least conceals its limp eroticism. During the 1760s he concentrated on theological writing; he published a Commentary of the Bible in monthly parts from 1764 and became almost solely responsible for the Christian Magazine (1760–67), some articles from which were collected in Dodd on Death.
Meanwhile Dodd's reputation as a preacher was growing. He was appointed to a lectureship at All Saints' in 1752; this was followed by lectureships in the City of London at St James Garlickhythe, in May 1753, and St Olave, Hart Street, in April 1754. He also delivered the Lady Moyer lectures at St Paul's Cathedral from 1754. In 1764 he attacked John Wesley for allegedly claiming that Methodists were perfect and for failing to control his followers. Wesley at first ignored the attack but then silenced his opponent with a fierce response in Lloyd's Evening Post (3 April 1767). In 1765 Dodd became tutor to the heir of Philip Dormer Stanhope, earl of Chesterfield, so he reluctantly turned schoolmaster and opened a small private school; he also graduated LLD in 1766 in the hope of attracting other wealthy pupils. His precarious finances received a boost when his wife received an inheritance and a lottery prize. With the money he opened Charlotte (or Pimlico) Chapel in Charlotte Street, behind Buckingham House, in July 1767. The aim was to attract royalty and thereby the cream of London society through his reputation as a preacher. Initially aristocracy joined his congregation and newspapers printed his sermons but the chapel struggled to attract members of the royal family. Dodd failed to obtain the vacant livings of either All Saints', in 1762, or St Olave, in 1769, although in 1772 he was preferred to the rectory of Hockliffe, Bedfordshire, to which was joined the vicarage of Chalgrove. His debts continued to mount as his lifestyle outstripped his income and he was forced to assign some of his literary works to the publisher of the Christian Magazine, to whom he owed money. Then, in 1767, he was sacked as its editor, and in 1771 his school, which had never been a financial success, collapsed when Philip Stanhope departed on the grand tour. Another attempt to rescue his finances, by leasing Bedford Chapel, Bloomsbury, in 1770, failed and he gave up the venture the following year.
In spite of all these difficulties Dodd supported a number of charities. While such endeavours were undoubtedly a means of mixing with influential people the fact that he was often the initiator of several successful schemes suggests a generous nature. He was instrumental in the establishment of the Society for the Relief and Discharge of Persons Imprisoned for Small Debts (later the Discharged Prisoners' Society) and of the Society for the Resuscitation of Persons Apparently Drowned (later the Royal Humane Society), and he was connected to the Magdalen Hospital for the reformation of penitent prostitutes. In 1767 he preached in favour of inoculation against smallpox and he wrote in support of the campaign against the death penalty in 1772. However, when in that year he and his wife were passengers in a coach that was robbed they were the only ones who appeared as witnesses against William Griffiths, who subsequently was convicted and hanged. It is worth remarking, however, that Dodd was equivocal in his evidence and interceded on Griffiths's behalf after his conviction.
There can be no doubting that Dodd worked hard, both as a writer and as a clergyman. Horace Walpole described his preaching style as 'haranguing entirely in the French style, and very eloquently and touchingly', by which he seems to have meant that he spoke rapidly, with emotion and in a high-pitched tone (letter to George Montagu, 28 Jan 1760, Walpole, Corr., 9.274). Walpole noted that some of the congregation were moved to tears, and this effect was presumably the result of Dodd's method of delivery since his printed sermons were similar in content to those preached by less popular colleagues. Dodd was certainly careful to cultivate the aristocrats among his congregation, even to the extent of sending them 'odes', the sycophantic tone of which says as much about their expectations as about his character. He enjoyed a degree of success both as a writer and a preacher but, while his income was not small, it was never adequate to maintain the impression of a successful clergyman, which he needed to promote in order to advance his career and to satisfy his own vanity. He kept a carriage, and his fashionable dress earned him the less than complimentary sobriquet the Macaroni Parson:'In the streets he walked with his head erect and with a lofty gait, like a man conscious of his own importance, and, perhaps, the dignity of his sacred calling' (Taylor, 2.250–52). Yet, according to the accounts of those who knew him, while he might have been vain he was not as pompous as this description suggests; Sir Philip Thicknesse said that he was 'one of the best-tempered men I ever knew', good company, generous, although, significantly, 'void of all prudence' (Thicknesse, 1.220–30). This popularity among fashionable society, however, brought little financial reward and even that was subject to the vagaries of fashion.
By the early 1770s Dodd's popularity had begun to wane as the fashion in preaching styles changed. His creditors became more pressing and this may have led him to live for a time near Hounslow Heath. But he needed to maintain his connection with wealthy society and so he took a house in Queen Street, Mayfair, about 1774. This made him more accessible to creditors, who besieged the house. To make matters worse his wife tried to bribe Lady Apsley so that her husband might present Dodd to the living of St George's, Hanover Square. Although Dodd seems to have been ignorant of his wife's efforts Lord Apsley was furious and had him removed from the list of royal chaplains. All hope of preferment in the church had gone and such reputation as Dodd had enjoyed went with it. Ridiculed in newspapers and satirized by Samuel Foote in The Cozeners, he fled to Geneva to join his old pupil Philip Stanhope, now earl of Chesterfield. On his return to England Chesterfield gave him the living of Wing in Berkshire and some money to pay off his most pressing creditors. Dodd continued to write and became editor of the New Morning Post. Unfortunately his absence abroad gave the governors of Magdalen Hospital the excuse to sack him, and in 1776 he relinquished the Charlotte Chapel, which had failed to bring the expected preferment and wealth.
By 1777 Dodd was living in Argyle Buildings, Argyle Street. Then came the final incident of his life. On 1 February he discounted a bill of exchange allegedly drawn by the earl of Chesterfield through Lewis Robertson, a broker. Dodd obtained £4200 but the bill was a forgery and he was arrested on 5 February. He immediately confessed, exonerated Robertson, and arranged for repayment. Promises that the matter would not be pressed further were not honoured and he was taken before Sir Thomas Halifax, the lord mayor, at Guildhall, London. Both Halifax and Chesterfield's solicitor pressed forward the prosecution with enthusiasm, arguing that such offences threatened financial stability and deserved the severest punishment. Dodd was remanded to the Wood Street compter, where, at his request, he was visited by John Wesley, who also saw him when he was moved to Newgate prison. He was convicted of a capital forgery at the Old Bailey on 22 February 1777 but the jury recommended mercy. The passing of the death sentence was delayed while the judges decided that it had been correct to admit Robertson as a witness for the prosecution. Meanwhile a popular campaign began with the aim of obtaining mercy for Dodd. Newspaper coverage suddenly became sympathetic to him: no longer the Macaroni Parson he was now the 'unfortunate divine'. Dodd approached Dr Johnson to assist him in seeking mercy, and, while Johnson disliked Dodd's lifestyle, he thought the penalty harsh and agreed to help him. The two men did not meet at this time, although they may have done so briefly some years previously. Johnson devoted a considerable amount of time to writing the speeches and prayers that were published under Dodd's name, including the one that he delivered to the court when he was eventually sentenced to death in May 1777 and a speech he was to have given, but did not, at the gallows. A large number of petitions were presented, including one with 23,000 signatures and others from Oxford and Cambridge universities, the trial jurors, and the common council of the corporation of the City of London. This support seemed to lead Dodd to believe that he would not be executed but it may have had the opposite effect by moving the lord chief justice, Lord Mansfield, to speak against mercy in the privy council from a belief that it might be dangerous to give in to such pressure. On 27 June 1777 Dodd was taken to be hanged at Tyburn. The crowds lining the streets along which he passed were said to have stood in silence. Efforts by the physician John Hunter to revive him failed and he was interred at St Lawrence's Church, Cowley, Middlesex, where his brother was vicar. A plaque on the church wall commemorates him, and according to local legend he is buried in the grounds of the modern rectory. Dodd, in his work, life, and death, exemplified some of the main concerns of the period: the fickleness and extravagance of London society, the decline of literary patronage, the dependence of individuals on wealthy patrons for their advancement, and the excesses and controversy surrounding capital punishment.
J. Russell, oils, 1769, NPG [see illus.]
line engraving, pubd 1777, BM, NPG
line engraving, pubd 1777, NPG
mezzotint, pubd 1777, BM, NPG
T. L. Atkinson, mezzotint (after T. Gainsborough), BM
T. Gainsborough, portrait
bronze bust, Sir John Soane's Museum, London
engraving, repro. in The Newgate calendar
G. Howson, The Macaroni Parson (1973)
J. Villette, A genuine account of the behaviour and dying words of William Dodd, LL.D. (1777)
The trial of the Reverend Doctor William Dodd (1777)
P. Fitzgerald, A famous forgery, being the story of the unfortunate Dr Dodd (1865)
J. Taylor, Records of my life, 2 vols. (1832)
P. Thicknesse, Memoirs and anecdotes of Philip Thicknesse, 3 vols. (privately printed, London, 1788–91)
Lloyds Evening Post (3 April 1767)
Philip Rawlings DNB
Samuel Johnson to James Boswell, 28 June 1777; Boswell, Life of Johnson (1791); ed. G. B. Hill (1891) 3:136-39.
Poor Dodd was put to death yesterday, in opposition to the recommendation of the jury — the petition of the city of London — and a subsequent petition signed by three-and-twenty thousand hands. Surely the voice of the publick, when it calls so loudly, and calls only for mercy, ought to be heard.
The saying that was given to me in the papers I never spoke; but I wrote many of his petitions, and some of his letters. He applied to me very often. He was, I am afraid, long flattered with hopes of life; but I had no part in the dreadful delusion; for, as soon as the King had signed his sentence, I obtained from Mr. Chamier an account of the court towards him, with a declaration that there "was no hope even of a respite." This letter immediately was laid before Dodd; but he believed those whom he wished to be right, as it is thought, till within three days of his end. He died with pious composure and resolution. I have just seen the Ordinary that attended him. His address to his fellow-convicts offended the Methodists; but he had a Moravian with him much of his time. His moral character is very bad; I hope all is not true that is charged upon him. Of his behaviour in prison an account will be published.
The Trial of Dr. DODD
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
witness against me; and as the bill has been found upon his evidence, which was surreptitiously obtained, I submit to your lordships that I ought not to be compelled to plead on this indictment, and upon this question I beg to be heard by my counsel, My Lords, I beg leave also further to observe to your lordships, that the gentlemen on the other side of the question are bound over to prosecute Mr. Robertson.
[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 carryLewis 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
guilt could not be brought home to him; I trust it is extremely clear, that Robertson ought not to have been admitted as a witness before the Grand Jury. Suppose a bill of indictment was brought before your lordships, and a prisoner was called upon to plead to it, and it appeared to your lordships that there was but one witness on the back of the bill, which witness also appeared to be an accomplice, and had been committed as a principal in the guilt, that would appear, upon the face of it, to be a bill found by a Grand Jury who are not supposed to be competent judges of law, they are only judges of fact, and the probable guilt of a prisoner is a sufficient ground for them to find a bill; but, I say, supposing it appeared, that that bill was found upon the oath of a person, who by the laws of this country ought not to be received as a witness, or at least, supposing him to be received as a witness, whose evidence never can, never has, and, I trust, never will convict any person, your lordships would not, in such a case, I conceive, put the prisoner to plead to or answer that indictment; it may be answered to me here, that there are a great many other witnesses on the back of this bill; that it does not appear here what the evidence given by Robertson was, whether there was enough to find a bill against Dr. Dodd or not; I trust that will be no objection; what passed before the Grand Jury must necessarily be a profound secret; it is enough for me to say that there appears on the back of this bill, as a witness a person, who was committed as a principal, and who ought to have answered as a principal at the bar of this Court. He has been carried up to the Grand Jury by an order surreptitiously obtained, which order the Court have shewn a just disapprobation of, and have in truth vacated; therefore I trust, in such a case, the law of this country will not permit any prisoner at the bar to be put upon this country; and if the rigid law of this country will not permit it, I am too much acquainted with your lordships humanity to suppose your lordships will permit it.
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 that
this might have been obtained without the interposition of a magistrate, or without obtaining an order from the Court, because if they do, they will be reduced to the necessity of arguing against their own conduct. Why were the prosecutors to come to the court? your lordships are not to give them advice; your lordships are not counsel in any prosecution; they applied to receive that sanction which they conceived, and I apprehend they conceived very rightly, was necessary for them to obtain, namely, an order for the conveyance of Mr. Robertson before the Grand Jury; however they misunderstood, or however they misrepresented, the answer that your lordships so justly gave to that application I do not know; but still, not departing from the idea that the interposition of this Court was necessary to the conveyance of Robertson before the Grand Jury, an order was obtained for this person, whom the prosecutors were bound over to prosecute capitally, to be carried before the Grand Jury. My Lords, it will be unnecessary to comment upon that order, it has been already stigma tized by the Court itself; it has been discharged, and it has been discharged as surreptitiously obtained; why then, my Lords, have I any proposition that needs an argument to maintain it, when I state this bare fact, that in consequence of an order now discharged by the Court, now declared by the Court to have been surreptitiously obtained by this means alone did Robertson's evidence come before the Grand Jury; what Robertson swears, whether he swears any thing material, or swore nothing that was material, whether the Grand Jury credited or disbelieved his evidence, whether they found the bill upon any part of his testimony, or found it solely upon the testimony of others, is totally out of the present case, because that fact remains and must remain in perfect secrecy; for the Grand Jury have not only an oath of secrecy imposed upon them, but if it were the Jury that sit there trying the prisoners your lordships would not permit any incompetent or illegal evidence to go before that Jury, however immaterial, because it is impossible for your lordships ever to say what degree of influence a piece of immaterial evidence might have upon the mind of any person whatsoever; it would be your lordships duty, and I am sure would be the conduct of the Court upon such an occasion, to take care that the Jury should hear no such evidence. Thus it stands with regard to the present bill of indictment, such was the situation of Mr. Robertson committed as a principal, and the parties bound over to prosecute him with effect; what have they done? In a case of forgery that came before this Court not a great while ago, that occasioned a very considerable consideration of the subject of admitting persons as evidence, and what safety the person should derive from being so admitted an evidence, great doubts, I believe arose. At one time I can venture to say that there were differences of opinion amongst your lordships, with regard to the propriety of admitting a person as evidence, and with regard to the advantages that were to be derived to the person so admitted as an evidence; then, upon that subject so difficult to define, so important in its consequences, and so delicate in its nature, the mistake of the prosecutor, together with the mistake of the officer of the Court (for I will call it no more) is at once to remove every difficulty, every obstruction whatever, and to take Lewis 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 the
Grand Jury is outlawed, these objections go to the persons of the Grand Jury: I am aware that that is not the present objection; but I will beg leave, with your lordships permission, to consider whether this does not fall within the same reason; for I cannot conceive that the law, which is so peculiarly watchful over the personal qualifications of the Grand Jury, should not be equally attentive to the evidence which is laid before them, and upon which they are to decide the fate of the bill which is offered to their consideration: I take it to be as essential to the finding of, the bill that the evidence offered to the Grand Jury should be such as the law allows, as it is when the indictment afterwards comes to be tried before your lordships; and if that rule holds, I trust I shall have very little difficulty in convincing your lordships that this bill has been improperly found. My Lords, the prosecutor has thought it so material to admit Mr. Robertson 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
" Henry Trew was indicted
"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
myself at all inclined to give any resistance to the motion that is made, if I did not think that the very proceeding required it, and that the objection is without the least appearance of any legal foundation. I perceive, my Lords, the objection, as it is made, to Dr. Dodd being put upon his trial on this indictment is, that there is a witness supposed to be improperly carried before the Grand Jury, and that witness, when carried before the Grand Jury, is supposed to be so situated and circumstanced that he ought not to be heard, and your lordships are desired, for the first time, almost, I believe, in the history of English judicature, to enquire and consider to what evidence the Grand Jury gave attention, and whether, upon the whole, it appeared to them that there was fit ground to find the bill. My Lords, I have always understood that for the sake, not of bringing men to punishment, but for the sake of defending them, and for the protection of Englishmen, that it was the sole and exclusive privilege of a Grand Jury to judge, not whether a man was guilty, but whether such circumstances appeared against a man accused of a crime that he ought to be put upon trial; and this is so peculiarly and exclusively the province of a Grand Jury, that your lordships are not only forbid, by law, yourselves, to know or presume, what evidence influences the Grand Jury, but they themselves are restrained by an oath from disclosing that evidence; they are to enquire and to judge whether a man ought to be tried, whether such grounds of suspicion (for suspicion is enough to find a bill) appear against a man accused, that he ought to be brought before another Jury to receive a conviction or acquittal; and as that is the province of the Grand Jury, it is no wonder that this is the first attempt, I believe, to desire of a court of judicature, who is to try the indictment found, to declare whether the Grand Jury have or have not had sufficient evidence before them to justify them in saying,
'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
by the law of England; that your lordships cannot make or alter; but you administer, and administer it wisely; but it is the law of England says, whether a man can or not be admitted a witness; if that law says, he cannot, it is not in the power of all the courts of judicature in this kingdom to make him; on the contrary, if he is a legal witness, no Court can say he shall not be; and the only purport of this order is to remove the body of the prisoner Robertson, and the only effect of it as it seems to me is this, that the gaoler, who would otherwise be exceedingly blameable in admitting the prisoner out of his gaol, is excused from all fault in so doing; let me suppose this man had escaped from the gaol, and had then gone before the Grand Jury, is it to be doubted that if he was by law a competent witness, that his evidence might be received wherever he offers himself as a witness, though he had escaped from gaol? and your lordships order goes simply to the fact of the gaoler carrying the body of this prisoner before the Grand Jury; and the only difference seems to me, that the gaoler carrying the prisoner out of the gaol without permission from the Court, he might have behaved improperly, but however the witness himself as to his competency could not possibly be affected by the manner in which he went before the Grand Jury: I have heard it said indeed to-day that it may depend upon the Court, that it may depend upon the committing magistrate, whether an accomplice shall be a witness or not; I know of no such law; I know it may depend upon the Court whether a man who has been used as a witness and is afterward attempted to be tried; whether in the judgment of the Court he is to be put upon his trial; or whether the manner in which he has been used as a witness does entitle him to be excused from prosecution; so a magistrate sometimes advises a person to be admitted as a witness who is an accomplice, and who is perhaps at the same time in gaol; he takes a recognizance from him to appear as an evidence; the Court will afterwards consider whether that person has acted so properly as to be excused from a trial; but this is the first time that I have heard it said that the competency of a witness depended upon any magistrate of this kind, and as high and great a regard as I have for your lordships sitting here, I should be very sorry, for one, to have the law of England so changed, that it might depend upon the discretion of judges, and not upon the fixed rules of law, whether a man shall be a witness or not. Thus much upon the first objection, that this man was improperly carried before the Grand Jury; whether he was properly, or whether he was improperly carried is to this point we are now considering totally immaterial; the persons who were guilty of improperly carrying him, those who without legal authority procured the gaoler to let him go, may be worthy of censure; but as to the competency of the witness himself it seems to me to make no sort of difference. I am sorry, my learned friend who last spoke, introduced into this cause something of which you cannot take notice, but which seems to me to cast reflections upon those for whom I am concerned, whom I know are not worthy of such reflections, and the account given by Robertson is, that what he did was totally founded in mistake; in answer to which it is necessary for me to say something, and I will say as little as I can, though I should be justified in saying a great deal more: the argument supposes, at least, that Robertson was as great a criminal as any other person accused, nay, that he was the principal offender; I, who know as much, I believe, as any body can know of this cause, am very far from entertaining that opinion of Robertson; for though I think he acted blameably; yet as there are degrees of guilt, as far as the matter is understood by me, Robertson is considered as almost innocent, for I am perfectly satisfied that Robertson was really persuaded that the bond was genuine; this however does not appear before your lordships, and therefore should not be mentioned; I speak it only because I would not have those for whom I stand suffer from a reflection which is perfectly unmerited, and those persons too are incapable of making any bargain with Robertson or any other man, in order to bring about any thing improper in this or any cause, but especially in one like this, where the life of a person is concerned; it was thought proper, it was by my advice, and that is enough to excuse all others concerned in the business, that Robertson should be received as a witness; now as to Robertson being guilty or having acted a criminal part, the whole of the
argument your lordships see assumed is, how does your lordships know, or how can you know what part Robertson acted?
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. MANSFIELD. - With regard to the case of Mrs. Rudd, it never was made a doubt, whether Mrs. Rudd could be a witness; but the question was, Mrs. Rudd's having been in fact taken and tried as a witness by the magistrate, whether she should be considered as entitled to an indemnity which should screen her from prosecution; and that I apprehended was the only question so in the general opinion expressed by the judges; I never conceived or apprehended, that it was meant to be considered by the judges, whether they could or could not say a criminal, an accomplice, should or should not be a witness; they can say, when the person is brought before them to be tried, whether they shall hold him entitled to favour or prevent his being convicted; they can say too, where the prosecutors, who are bound by recognizance to prosecute a person committed, shall be relieved from that recognizance, because they have thought proper not to prosecute the man, but use him as a witness; but it is now to me, if it is to depend upon the discretion of the judges, whether an accomplice is a competent witness, for that is the argument made use of here. It is to depend upon the discretion of the judges, whether an accomplice is a competent witness; now that position is utterly new to me; all the favours that a man derives from being a witness, all the consequential steps which are to affect the prosecutor, one way or the other for not prosecuting all those, must depend upon the discretion and judgment of the Court, at the time when that matter comes before them; but as to the admission of a witness as to the question of his competency, I do apprehend it must depend, not upon the discretion of the Court, but upon the rules of law, with regard to the present question. What is it Mr. Robertson has proved before the Grand Jury? as to parts of the case, it cannot be doubted, that Mr. Robertson might be permitted to give evidence, if he chose it; that he did not receive the bond from Lord Chesterfield; for instance, that he did receive it from Dr. Dodd; that he knows no more of it; can any mortal say, that as to these questions, Mr. Robertson, let him stand in what predicament he will, is not a competent witness? I have no doubt, nor have I heard an argument suggested, that he cannot be a witness throughout but what law or dictum is found, which warrants the doctrine contended for; that this man is not to be received as a witness, a case is produced from Lord Hale, in which two men being actually charged or indicted, one is admitted an evidence against the other.
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. Baron PERRYN . - If any advice was asked of a judge, except sitting in judgment, I should think it exceedingly improper.
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
are synonimous words in the law of England.
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
assistance of that evidence, then I never admit him: I wish Mr. Reynolds would say what has been the practice at this Court, of which he is a very old officer.
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
order to bring an evidence, before the Grand Jury: I am sure they never made an order to bring a prisoner from hence to be carried before the Grand Jury. We never make an order to bring any body before the Grand Jury; we make an order to bring them before us in a matter before us for trial.
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
find it out, but when explained it must be intelligible.
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
'am held and firmly bound to Henry Fletcher
'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
'the said Henry Fletcher , Esq; or his certain
'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
'the reign of our sovereign Lord George the
'Third, by the grace of God of Great Britain,
' France and Ireland King, defender of the
'faith and so forth, and in the year of our
'Lord one thousand seven hundred and seventy
'Whereas the said Henry Fletcher , Esq;
'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
'pounds the said Henry Fletcher hath paid to
'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
'cause to be paid unto the said Henry Fletcher ,
'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
WILLIAM DODD , LEWIS ROBERTSON .
with intention to defraud the said Earl against the statute, &c.
2d Count. The same as the first, only charging it to be with intention to defraud the said Henry Fletcher .
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.
4th Count. For feloniously uttering and publishing as true the said forged bond with intention to defraud the said Henry Fletcher , against the statute, and knowing the same to be forged.
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
' Henry Fletcher , Esquire, the sum of four
'thousand two hundred pounds, being the
'consideration money above-mentioned to be
'paid by him to me, I say received by me
WILLIAM DODD , LEWIS ROBERTSON .
with intention to defraud the said Earl, against the statute, &c.
6th Count. The same as the first, only charging it to be with intention to defraud the said Henry Fletcher .
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
same to have been forged, against the statute, &c.
8th Count. The same as the 7th, only with intention to defraud the said Henry Fletcher .
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 by
Lord Chesterfield himself as well as by others, who are perfectly well acquainted with Lord Chesterfield's manner of writing, that this is not his bond, that he never signed it, it will thus be made out clearly to have been signed by somebody else, to have been forged by somebody; the same observation is to be made with regard to the receipt, for then when it is proved, as it will be, not to be the bond, not to be the receipt of Lord Chesterfield, but to have been forged by somebody; it will then in the next place be proved to you beyond a doubt, that the hand-writing of the person who wrote the name ofWilliam 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
should be able to do it; but he did not deny it, he did not pretend to deny it; he did not insinuate that he was innocent of the charge, but only, as I tell you, gave some reasons, by way of palliating the crime, for his having committed it: when carried before the magistrate, and again charged with this crime, Dr. Dodd did not then deny it; but he applied for mercy, said that he was very willing to make every restitution in his power; that he had a regard for Lord Chesterfield, and applying to Lord Chesterfield's compassion and tenderness, hoped there might be no prosecution; but neither then, nor when Mr. Manly first charged him, did he at all deny the crime, but, you see, held language and conversation which did in the most express terms admit his guilt. This is in general the amount of the proofs against Dr. Dodd, depending, you see, merely upon Lord Chesterfield, upon those acquainted with his hand and those acquainted with Dr. Dodd's, and upon those who were present at those confessions: besides this, we shall be able to explain to you how this matter began and was transacted: Mr. Robertson was, as I have told you, a broker, and appears to have been the agent of Dr. Dodd in this business: but I must, in justice to Mr. Robertson, say, that being himself perfectly satisfied by the representations of Dr. Dodd, that it was the bond of Lord Chesterfield; and I have the more reason to say this, because at the first interview, in the presence of Mr. Manly, when he charged Dr. Dodd, Mr. Robertson called out upon Dr. Dodd to say whether he was not perfectly innocent; and it is justice to Dr. Dodd, as well as Mr. Robertson, to say, that upon that occasion he did, and in the most emphatic expressive terms, acquit Mr. Robertson of his being in any wise criminal, of his being at all acquainted with the forgery or having any thing to do with it: this he did more than once in terms very explicit, which did convince every one that had any thing to do with this affair, and were concerned in this prosecution, that though Robertson was certainly blameable in suffering his name to appear as a witness to an instrument which he did not see executed by Lord Chesterfield, which it purports that he did, yet that he was himself imposed upon, that he bore no part at all in the forgery: Mr. Robertson will tell you, that from Dr. Dodd he received the bond, that at his instance he negociated it; and that Dr. Dodd had the money produced from this bond we know, because by Dr. Dodd that money that he had received upon the bond was refunded, except a small sum he had made use of; 3000 l. was advanced in notes upon the house of Raymond and Co. of which Mr. Fletcher was a partner, the other in Banknotes; there was something Robertson had as the brokerage, the rest went to Dr. Dodd; and Robertson will give you an account of this, and will explain to you how the transaction began. This is in general the nature of the evidence we have to lay before you; and after what I have stated to you with regard to Robertson, I am sure every body will go before me in considering that it was not false clemency in the prosecutor, or any improper motive whatever that made him, or those that advised him, think that it was fit and proper to use the testimony of Robertson upon this occasion, though without that it is so extremely strong, you will see, upon Dr. Dodd, that it will be almost impossible, I think, for him to answer it: there are matters of smaller consequence and less moment that will appear in the cause, which it is not necessary for me to trouble you with. Dr. Dodd, you see, is charged as the forger, as the publisher, that is, the person who uses, who delivers this instrument, knowing it to be forged; and if he be proved to be guilty of either, the crime is equally enormous, in the judgment of the law the punishment is the same. Mr. Robertson is guilty of a behaviour which no one can but blame, in having suffered his name to stand upon this bond which he had never seen executed, and in saying, as I believe he did, that he had seen it executed at the time when it went out of his hand; but all this was under a perfect persuasion, in consequence of the representations of Dr. Dodd, that the bond was really genuine. When these facts are laid before you, you know very well your duty; it will be for you to draw the conclusion. If the evidence be such as does irresistibly prove that Dr. Dodd forged or published either of the instruments, knowing them to be forged, then you will pronounce him guilty; if you see any room upon the evidence to doubt of his being guilty, if you are not perfectly convinced that
he is, to be sure you and every one present at this trial will be glad that there should be a reason for you to give a contrary verdict, and for saying that he is innocent.
Mr. DAVENPORT. - Pray, my Lord Chesterfield, has your lordship got a release from Mr. Fletcher?
The Earl of CHESTERFIELD. I have (produces it).
Mr. JOHN MANLY sworn.
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.
Mr. HENRY FLETCHER sworn.
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.
Mr. JOHN MANLY . There is one circumstance that I should mention; I entrusted my clerk to take a copy of the bond, and it was then out of my sight.
Mr. WILLIAM MANLY sworn.
Was that bond delivered to you by your brother, Mr. John Manly , to copy? - It was; I delivered it to him again immediately after I had copied it.
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.
Does your lordship know the prisoner William Dodd ? - I do.
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.
Has your lordship ever observed enough of his hand-writing to be able to say whether that William Dodd , wrote as a subscribing witness to the bond, is the hand-writing of the prisoner? - I have.
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.
Mr. ALBERT INNIS sworn.
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.
Mr. SAMUEL LEACROT sworn.
Have you seen Dr. Dodd write? - I don't recollect Dr. Dodd's hand-writing.
Mr. JAMES NEALE sworn.
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.
Mr. JEFFREY OAKES sworn.
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,
and saw his lordship; his lordship was above stairs, when I came to the room door, his lordship met me, saying, you have called about the bond; I said I had; his lordship answered, he had burnt the bond, which surprized me a little; afterwards his lordship explained to me that he had given a bond for 500 l. which he burnt when he came of age; before that explanation it was a mystery; I told his lordship, I did not understand that; I immediately introduced the bond in question to his lordship; Mr. Innis, the gentleman who has been examined, was present with his lordship; my Lord Chesterfield immediately disowned the bond.
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 SirCharles 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
then said it was a very unhappy affair, and asked the Doctor, if he had the money to return.
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.
Was there many witnesses examined before my Lord Mayor? - Mr. Fletcher, Mr. Peach, Mr. Innis, myself, and I believe my Lord Chesterfield.
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.
Mr. ALBERT INNIS sworn.
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
' will, according to the mercy that is in his
'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.
From whom did you receive it? - I received it from Lewis Robertson .
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.
LEWIS ROBERTSON sworn.
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.
Was the name of Dodd written to it before you came, or in your presence? - He wrote William Dodd upon the bond in my presence.
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
to any other bond? - Only to that bond and that receipt.
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
a matter of any value to me; no, my lords, I solemnly protest that death of all blessings would be the most pleasant to me after this pain. I have yet, my lords, ties which call upon me; ties which render me desirous even to continue this miserable existence: I have a wife, my lords, who for 27 years has lived an unparalleled example of conjugal attachment and fidelity, and whose behaviour during this crying scene would draw tears of approbation, I am sure, even from the most inhuman. My lords, I have creditors, honest men, who will lose much by my death; I hope for the sake of justice towards them some mercy will be shewn to me. If upon the whole, these considerations at all avail with you, my lords, and you gentlemen of the jury, if upon the most partial survey of matters not the slightest intention of injury can appear to any one, and I solemnly declare, it was in my power to replace it in three months; of this I assured Mr. Robertson frequently, and had his solemn assurances, that no man should be privy to it but Mr. Fletcher and himself; and if no injury was done to any man upon the earth, I then hope, I trust, I fully confide myself in the tenderness, humanity, and protection of my country.
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 .
Dr William Dodd Poetry :
- THE AFRICAN PRINCE, NOW IN ENGLAND, TO ZARA AT HIS FATHER'S COURT, WRITTEN IN THE YEAR MDCCXLIX. ()
- HYMN TO HOPE. ()
- VERSES OCCASIONED BY A PRESENT OF A MOSS ROSE-BUD, FROM MISS JACKSON OF SOUTHGATE. ()
- ZARA, AT THE COURT OF ANAMABOE, TO THE AFRICAN PRINCE WHEN IN ENGLAND. ()
Baines, Paul, Julian Ferraro, Pat Rogers, eds. The Wiley-Blackwell Encyclopedia of Eighteenth-Century Writers and Writing, 1660-1789. Malden, MA: Wiley-Blackwell, 2011. 101-102. Print.
Radcliffe, David H., ed.
Rev. William Dodd (1729-1777). Spenser and the Tradition: ENGLISH POETRY 1579-1830. Center for Applied Technologies in the Humanities, Virginia Tech, 2006. Web. 14 Oct. 2011. http://spenserians.cath.vt.edu/AuthorRecord.php?recordid=33116.