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WEDNESDAY, 27th AUGUST, 1788.
The Court met at Nine o’clock.
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Judges Present—
THE LORD JUSTICE-CLERK (Lord Braxfield).
LORD HAILES.
LORD ESKGROVE.
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LORD STONEFIELD.
LORD SWINTON.
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Counsel for the Crown—
The Lord Advocate (Ilay Campbell).
The Solicitor-General (Robert Dundas).
William Tait and James Wolfe Murray, Esqs.,
Advocates-Depute.
Agent—
Mr. Robert Dundas, Clerk to the Signet.
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Counsel for the Pannel William Brodie—
The Dean of Faculty (Hon. Henry Erskine).
Alexander Wight and Charles Hay, Esqs., Advocates.
Agents—
Mr. Robert Donaldson, W.S., and Mr. Alexander Paterson,
Writer, Edinburgh.
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Counsel for the Pannel George Smith—
John Clerk and Robert Hamilton, Esqs., Advocates.
Agent—
Mr. Æneas Morrison, Writer, Edinburgh.
CURIA JUSTICIARIA S. D. N. Regis, Tenta in Nova Sessionis domo de Edinburgh, Vicesimo Septimo die Augusti millesimo septingentesimo Octogesimo octavo, Per Honorabiles Viros; Robertum M‘Queen de Braxfield, Dominum Justiciarium Clericum; Dominum Davidem Dalrymple de Hailes, Baronetum; Davidem Rae de Eskgrove; Joannem Campbell de Stonefield; et Joannem Swinton de Swinton, Dominos Commissionarios Justiciariae dict. S. D. N. Regis.
Curia Legitime Affirmata.
INTRAN. William Brodie, sometime Wright and Cabinetmaker in Edinburgh, and George Smith, sometime Grocer there, both prisoners in the Tolbooth of Edinburgh,
Pannels.
INDICTED and ACCUSED at the instance of Ilay Campbell, Esq., His Majesty’s Advocate for His Majesty’s Interest, for the Crime of Theft attended with House-breaking, in manner mentioned in the Criminal Indictment raised against them thereanent, bearing as follows:—
WILLIAM BRODIE, sometime Wright and Cabinetmaker in Edinburgh, and GEORGE SMITH, sometime Grocer there, both prisoners in the Tolbooth of Edinburgh, You are indicted and accused at the instance of Ilay Campbell, Esq., His Majesty’s Advocate, for His Majesty’s interest: THAT ALBEIT, by the laws of this, and of every well-governed realm, THEFT, more especially when attended with house-breaking, and when committed by breaking into a house used or kept as an Excise Office, or other public office, under cloud of night, and from thence abstracting and stealing money, is a crime of an heinous nature, and severely punishable: YET TRUE IT IS, AND OF VERITY, That You, the said William Brodie, and George Smith, are both, and each, or one or other of You, guilty actors, or art and part, of the said crime, aggravated as aforesaid: IN SO FAR AS, upon the night of the 5th day of March, last, in this present year of our Lord 1788, or upon one or other of the days or nights of that month, or of February immediately preceding, or of April immediately following, You, the said William Brodie, and George Smith, did, by means of false keys, or other instruments, wickedly and feloniously break into the house in which the General Excise Office for Scotland was then kept, in Chessels’s buildings, on the south side of the High-street of Canongate of Edinburgh, within the royalty or liberties of the city of Edinburgh, and county of Edinburgh, and did thence feloniously abstract and steal money, to the amount of Sixteen pounds Sterling, or thereby, consisting partly of Bank-notes, and partly of silver and halfpence. And You, the said George Smith, having been afterwards apprehended, and brought before Archibald Cockburn, Esq., Sheriff-depute of the county of Edinburgh, did, in his presence, emit three several declarations; the first of date the 8th day of March, the second of date the 10th day of March, and the third of date the 19th day of March, all in this present year of our Lord 1788: And having afterwards been brought before John Stewart, Esq., Sheriff-substitute of the said county, You did, in his presence, emit a fourth declaration, of date the 17th day of July, likewise in this present year 1788: The first of which declarations was signed by the said Archibald Cockburn, the second and third by you, the said George Smith, and the said Archibald Cockburn, and the fourth by you, the said George Smith, and the said John Stewart. AND FURTHER, You, the said William Brodie, having, in the month of March last, when the said George Smith was committed to prison, left Edinburgh, and fled from this country; and having afterwards been brought back, and taken into custody, did, upon the 17th day of July, in this present year 1788, in presence of the said Archibald Cockburn, Esq., emit a declaration, which was signed by you, the said William Brodie, and the said Archibald Cockburn; the whole of which declarations, together with a letter written by You, the said William Brodie, and signed John Dixon, dated at Flushing, Tuesday, 8th April, 1788, twelve o’clock forenoon, and addressed to Mr. Matthew Sheriff, upholsterer, Edinburgh; another letter, or two letters, on one sheet of paper, written by You the said William Brodie, and signed with your initials, dated Thursday, 10th April, 1788, and addressed to Mr. Michael Henderson, Grass-market, stabler, Edinburgh; an unsigned scroll, or copy of a letter, in the hand-writing of You, the said William Brodie, marked No. 1. without date or address; another unsigned scroll, or copy of a letter, in the hand-writing of You, the said William Brodie, marked No. 2. without date or address; an account, or state, in the hand-writing of You, the said William Brodie, entitled, “A state of my affairs, as near as I can make out at present from memory, having no other assistance”; a letter, dated London, 1st May, 1788, signed Lee, Strachan, and Co. and addressed to Mess. Eml. Walker and Co., merchants, Philadelphia; a gold watch, with a chain, seal, and key; a chest, or trunk, containing various articles; a five-pound bank-note; an iron coulter of a plough; two iron wedges; an iron crow; a pair of curling irons or toupee tongs; a spur; a dark lanthorn; a pair of pistols; several false keys and pick-locks; and two spring-saws; are all to be used in evidence against You the said William Brodie and George Smith; and, for that purpose, will be lodged in the hands of the clerk of the High Court of Justiciary, before which You are to be tried, in order that You may have an opportunity of seeing the same: AT LEAST, time and place foresaid, the said house in which the General Excise Office for Scotland was then kept as aforesaid, was feloniously broke and entered into, and a sum of money feloniously and theftuously taken and stolen therefrom as aforesaid; and You the said William Brodie, and George Smith, above complained upon, are both, and each, or one or other of You, guilty thereof, actor or actors, or art and part. ALL WHICH, or part thereof, being found proven by the verdict of an assize, before the Lord Justice-General, Lord Justice-Clerk, and Lords Commissioners of Justiciary, You, the said William Brodie, and George Smith, OUGHT to be punished with the pains of law, to deter others from committing the like crimes in all time coming.
ILAY CAMPBELL.
List of Witnesses to be Adduced in the Trial for the
Prosecutor.
1. John Brown alias Humphry Moore, sometime residing in Edinburgh, present prisoner in the Tolbooth of Canongate of Edinburgh.
2. Andrew Ainslie, sometime shoemaker, present prisoner in the Tolbooth of Canongate of Edinburgh.
3. Mary Hubbart or Hubburt, spouse of the said George Smith.
4. Grahame Campbell, sometime servant to the said George Smith.
5. Alexander Thomson, accountant of Excise in Edinburgh.
6. Peter M‘Farlane, clerk in the office of the cashier of Excise there.
7. Adam Pearson, assistant secretary of Excise in Edinburgh.
8. Janet Baxter, servant to the said Adam Pearson.
9. William M‘Kay, porter in the Canongate of Edinburgh.
10. John Duncan, doorkeeper to the Excise Office, Edinburgh.
11. Laurence Dundas, housekeeper of the said Excise Office.
12. Margaret Black, late servant to the said Laurence Dundas.
13. Margaret Bain, late servant to the said Laurence Dundas.
14. James Bonar, deputy-solicitor of the Excise, Edinburgh.
15. Robert Smith, wright in Edinburgh, late foreman to the said William Brodie.
16. Isobel Gilmour, spouse of John Gilmour, ropemaker in West Bow, Edinburgh.
17. Daniel M‘Lean, waiter to William Drysdale, innkeeper in the New Town of Edinburgh.
18. Patrick Taylor, smith in Edinburgh.
19. Charles M‘Leod, apprentice to the said Patrick Taylor.
20. Jacobina Pearson, spouse of Hugh Macpherson, shoemaker in Duddingston, near Edinburgh.
21. John Kinnear, servant to the Earl of Abercorn at Duddingston.
22. Robert Tait, servant to the Earl of Abercorn there.
23. Isobel Wilson, spouse of Adam Robertson, wright in Duddingston.
24. John Clerk, book-keeper to William Drysdale, innkeeper in the New Town of Edinburgh.
25. David Robertson, merchant in Edinburgh.
26. John Geddes, tobacconist in Mid-Calder and county of Edinburgh.
27. Margaret Tweddle alias Geddes, spouse to the said John Geddes.
28. James Laing, writer in Edinburgh.
29. John M‘Leish, clerk to Mr. Hugh Buchan, City Chamberlain of Edinburgh.
30. George Williamson, messenger-at-arms in Edinburgh.
31. William Middleton, indweller in Edinburgh.
32. James Murray, sheriff-officer there.
33. Alexander Williamson, sheriff-officer there.
34. James Fraser, sheriff-officer there.
35. Archibald Cockburn, Esq., Sheriff-depute of the county of Edinburgh.
36. John Stewart, Sheriff-Substitute of the said county.
37. William Scott, Procurator-Fiscal of the county of Edinburgh.
38. William Augustus Wishart, clerk to the said William Scott.
39. Joseph Mack, writer in the Sheriff-Clerk’s Office, Edinburgh.
40. Alexander Fraser, grocer and change-keeper in the New Town, Edinburgh.
41. Laurence Blair, servant to Mr. Charles Hope, advocate.
42. Thomas Longlands, solicitor-at-law in London.
Ilay Campbell.
List of Assize.
1. Andrew Bonar, banker in Edinburgh.
2. Alexander Houston, banker there.
3. Robert Forrester, banker there.
4. Robert Allan, banker there.
5. Henry Jamieson, banker there.
6. John Hay, banker there.
7. William Creech, bookseller there.
8. James Carfrae, merchant there.
9. William Gillespie, merchant there.
10. William Simpson, banker there.
11. George Kinnear, banker there.
12. John Black, merchant there.
13. Francis Blair, merchant there.
14. Elphingston Balfour, bookseller there.
15. Peter Forrester, merchant there.
16. John Thomson, insurance-broker there.
17. Thomas Elder, merchant there.
18. Edward Innes, confectioner there.
19. John Balfour, merchant there.
20. William Fettes, merchant there.
21. John Milne, founder there.
22. Dunbar Pringle, tanner there.
23. Peter Robertson, goldsmith there.
24. Thomas Campbell, merchant there.
25. William Turnbull, merchant there.
26. Alexander Brown, merchant there.
27. Charles Cowan, merchant there.
28. David Paterson, insurance-broker there.
29. Francis Sharp, merchant there.
30. James Donaldson, printer there.
31. John Hutton, stationer there.
32. John Balfour, papermaker there.
33. Robert Young, upholsterer there.
34. John Learmonth, junior, tanner there.
35. Thomas Cleghorn, coachmaker there.
36. Thomas Hutcheson, merchant there.
37. James Craig, corn merchant there.
38. Alexander Bruce, merchant there.
39. Benjamin Yule, baker there.
40. William Smellie, printer there.
41. Orlando Hart, shoemaker there.
42. James Ranken, merchant there.
43. William Young, baker there.
44. William Brown, grocer there.
45. Alexander Weir, painter there.
Rob. M‘Queen.
Dav. Dalrymple.
Dav. Rae.
List of Witnesses To Be Adduced in Exculpation Of
William Brodie.
1. Robert Smith, wright in Edinburgh, late foreman to the said William Brodie.
2. George M‘Intosh, also wright, and late journeyman to the said William Brodie.
3. John Niel, also wright, and late journeyman to the said William Brodie.
4. Arthur Giles, wright in Edinburgh.
5. William Watson, wright in Canongate.
6. William Retson, or Reston, nailer, Portsburgh.
7. James Cargill, ironmonger, Edinburgh.
8. Alexander Miller, ironmonger there.
9. George Burton, ironmonger there.
10. James Goldie, ironmonger there.
11. Daniel MacLean, waiter to William Drysdale, vintner in Edinburgh.
12. George Lees, coachmaker there.
13. Alexander Fergusson, dyer there.
14. Patrick Taylor, smith there.
15. Charles MacLeod, apprentice to Patrick Taylor.
16. Agnes Finlay, spouse to Michael Henderson, stabler, Grassmarket.
17. Alexander MacKay, inner turnkey in the Tolbooth of Edinburgh.
18. James Reid, indweller in Edinburgh, and present prisoner in the Tolbooth.
19. Alexander Brodie, baker, Nether Bow.
20. James Murray, sheriff-officer.
21. Helen Alison, spouse to William Wallace, mason, Libberton’s Wynd.
22. Jane Watt, residenter there.
23. Peggy Giles, servant to—Grahame, publican at Mutton-hole, near Edinburgh.
24. Matthew Sheriff, upholsterer in Edinburgh.
Under protestation to add and eik.
Alexander Wight, for the pannel.
The diet having been called “at the instance of Ilay Campbell, Esquire, His Majesty’s Advocate, for His Majesty’s interest, against William Brodie, sometime wright and cabinetmaker in Edinburgh, and George Smith, sometime grocer there,” the Lord Justice-Clerk desired the pannels to attend to the indictment then to be read.
Mr. Norris, Depute-Clerk of Court, then read aloud the indictment, after which,
The pannels having been asked to stand up,
The Lord Justice-clerk—William Brodie, you have heard the indictment raised against you by His Majesty’s Advocate—are you guilty of the crime therein charged, or not guilty?
William Brodie—My Lord, I am not guilty.
The Lord Justice-clerk—George Smith, you have heard the indictment raised against you by His Majesty’s Advocate for His Majesty’s interest—are you guilty of the crime therein charged, or not guilty?
George Smith—Not guilty, my Lord.
The Lord Justice-Clerk then asked the counsel for the pannels if they had any objection why the said indictment should not be remitted to the knowledge of the assize.
Mr. Charles Hay—My Lords, I appear as counsel for William Brodie, the prisoner at the bar. I do not observe anything in this indictment upon which I can found an objection to the relevancy of it, and therefore I will at present confine myself to a simple denial of the charge against Mr. Brodie, and your Lordships will fall to pronounce the usual interlocutor on the relevancy, in which the prisoner will be allowed a proof of all facts and circumstances tending to his exculpation.
The Solicitor-General—My Lords, I desire to know the nature and tendency of the exculpatory evidence proposed to be adduced, in order that, in the course of leading the proof upon the part of the prosecutor, we may be prepared to meet it.
The Lord Justice-Clerk—It is not sufficient for the prisoner to deny the charge if he intends to prove any facts in exculpation; it is but fair to the public prosecutor and to the gentlemen of the jury that these should now be mentioned that they may have them in their view in the course of the trial.
The Dean of Faculty—My Lords, I likewise appear as counsel for William Brodie, the prisoner at the bar. I admit that it is fair to mention the facts which are to be insisted on in his defence; and therefore, adhering to the general denial of the crime charged, we undertake to prove that Mr. Brodie went, before eight o’clock of that night in which the Excise Office is said to have been broken into, to the house of Janet Watt, a person residing in Libberton’s Wynd, with whom he had a particular connection, and that he remained in that house from the said hour until about nine o’clock the next morning. This will be instructed by the woman herself and by other unexceptionable witnesses.
Mr. Robert Hamilton—My Lords, I appear as counsel for the prisoner George Smith. No objection appears to me upon the relevancy of the indictment, and the prisoner rests his defence upon a general denial of the facts charged, having no exculpatory proof to offer.
The Court then pronounced the following interlocutor:—
The Lord Justice-Clerk and Lords Commissioners of Justiciary, having considered the criminal indictment raised and pursued at the instance of Ilay Campbell, Esq., His Majesty’s Advocate, for His Majesty’s interest, against the said William Brodie and George Smith, pannels, they find the indictment relevant to infer the pains of law, but allow the pannels and each of them to prove all facts and circumstances that may tend to exculpate them or alleviate their guilt, and remit the pannels with the indictment as found relevant to the knowledge of an assize.
Robert M‘Queen, I.P.D.
The Court were proceeding to select fifteen from amongst the forty-five gentlemen summoned as jurymen, when it was discovered that some of the witnesses had not come forward. In about half-an-hour they all arrived. The Lord Advocate then moved the Court to inflict some fine on those witnesses by whom the delay had been occasioned; but it being found upon inquiry that the hour of cause, but no particular hour, was specified in the citations given them, his Lordship, in respect that the hour of cause was understood to mean ten o’clock, withdrew his motion, and the Lord Justice-Clerk, to prevent similar delays, gave directions that in time coming the citations given to jurymen and witnesses should bear a specified hour at which their attendance is to be required.
Out of the above forty-five jurymen the following fifteen persons were named to pass upon the assize of the pannels; and the pannels being asked if they had any objections why they should not pass upon this assize, and no objections being made on the contrary, they were all lawfully sworn in by the following oath, five at a time:—
You swear by Almighty God, and as you shall answer to God at the great day of judgment, that you will truth say, and no truth conceal, so far as you are to pass upon this assize.
1. Robert Forrester, banker.
2. Robert Allan, banker.
3. Henry Jamieson, banker.
4. John Hay, banker.
5. William Creech, bookseller.
6. James Carfrae, merchant.
7. John Kinnear, banker.
8. William Fettes, merchant.
9. John Milne, founder.
10. Dunbar Pringle, tanner.
11. Thomas Campbell, merchant.
12. Francis Sharp, merchant.
13. James Donaldson, printer.
14. John Hutton, stationer.
15. Thomas Cleghorn, coachmaker. |
The jury being impanelled and furnished with pen, ink, and paper, and copies of the indictment being laid before them, the Court ordered the counsel for the prosecutor to proceed to the evidence.
At this stage, before the evidence was led,
Mr. Wight—My Lords, I likewise attend your Lordships on the part of Mr. Brodie, and although there does not appear upon the face of this indictment any sufficient ground for an objection to the relevancy of it, yet there are some particulars of which I consider it my duty to take notice; and, in order to save time and trouble to the Court, I propose to do it now rather than hereafter.
The law of this country has been very careful to give unhappy men in the situation of the prisoners every opportunity of preparing for their trials; they are allowed fifteen days after being served with their indictments; they are furnished with a list of the witnesses’ names and designations who are to be adduced against them; and the declarations, writings, and articles to be used in evidence in the course of the trial are particularly specified. The present indictment, though not irrelevant, is perhaps laid in the most vague and general manner I have ever seen. Here there are certain letters and declarations founded on, and other articles, such as a gold watch with a chain, and seal, and key, a chest or trunk containing various articles, a five-pound bank-note, an iron coulter of a plough, &c. These are mentioned in so vague a manner as not to distinguish them from other articles of the same kind, consequently in such a manner as not to give the pannels proper opportunity of preparing for their defence. This is the more inexcusable that all of these articles admitted of a more accurate description.
[Here Mr. Wight was interrupted by the Court.]
The Lord Justice-Clerk—Mr. Wight, these objections are out of place; they ought to be stated when the articles you mention come to be produced by the prosecutor.
The Dean of Faculty—It is no doubt true that the objection to each of these articles falls properly to be stated when they are founded upon by my Lord Advocate; but it was thought proper and respectful to the Court to state the general objection at this stage of the business in order to save time.
The Solicitor-General—My Lords, I wish that Mr. Wight may be allowed to proceed.
The Lord Justice-Clerk—Mr. Wight, go on.
Mr. Wight—I say, my Lords, that the articles mentioned in the indictment admitted of a more accurate description than that which my Lord Advocate has given them. The maker’s name and number of the watch might have been mentioned, the device on the seal, too, ought to have been specified, also the number of the note and by whom it was issued; and as to the chest or trunk, which is only described by saying that it contained sundry articles, there is no particular description of it, or of any of the articles it contained. It is not said that it is a hair trunk, or the size or shape of it, or any other
The Solicitor-General (Robert Dundas). (After Kay.)
The Solicitor-General (Robert Dundas).
(After Kay.)
mark condescended upon, whereby it could be distinguished. It might have been mentioned what sort of a trunk it was, whether made of fir, of oak, or of ash; to whom it belonged, and where and in whose possession it was found.
To show your Lordships that this is no immaterial objection, I must beg leave to mention a circumstance that occurred in the present case. Some days ago, Mr. Brodie’s agent went to the Justiciary Office to examine the articles founded on in the indictment; and upon inquiring for the trunk, he was shown a black trunk, a trunk different from the one now to be used in evidence. Thereafter the counsel for the Crown discovered they had committed a mistake; they were so much misled by this want of description that they had sent the trunk referred to, or meant to be referred, in the libel to the prison to Mr. Brodie, and had lodged a wrong trunk with the Clerk of Court. They did not discover this mistake till yesterday morning, and they then applied to the Sheriff for a warrant to recover the trunk, which is now in Court, out of the possession of Mr. Brodie, and which was only lodged in the Justiciary Office yesterday.
Although I have thrown out this general objection, I do not mean to plead it to the effect of setting aside the libel altogether; yet, when the prosecutor attempts to apply his evidence to these articles, I reserve to myself the liberty of making special objections to each article, as it shall be referred to.
The Solicitor-General—My Lords, I will not take up the time of the Court in making any answer to the objection stated, as to the manner in which the watch and the other articles are described in the indictment, as I have no hesitation to say that it does not deserve one. All these articles, as well as the other articles libelled on, have been for weeks past lying in the hands of the Clerks of Court, where the counsel and agents for the pannels have had full opportunity of examining and taking from them whatever description they might think proper.
As to the story of the trunk, it is shortly this: there were two trunks the property of Mr. Brodie; and one of them, containing linens and other articles, was, from motives of humanity, allowed to remain in his possession. This was the trunk referred to in the indictment; the other was, however, sent by mistake to the Justiciary Office, but as soon as the error was discovered, Mr. Brodie was applied to to deliver up the proper trunk. This he refused to do, and therefore it became necessary to apply to the Sheriff, who granted a warrant; in consequence of which it was recovered from the prisoner and lodged in the Justiciary Office. This is the plain state of the fact, and, having laid it before your Lordships, I do not consider it necessary to add one word more to the subject.
The Lord Advocate—My Lords, if it had been intended to charge the prisoners with stealing the watch, or any of the other articles, a more accurate description might have been necessary, but here there is no such intention—the crime of which the prisoners are accused is breaking into the Excise Office.
From the nature of the thing, my Lords, as well as from the tenor of the indictment, it must be evident to every one that it is only meant to produce these articles in evidence, to refer to them when the witnesses are examined. It may be necessary, for example, to prove that certain letters were found in the chest, and to whom the chest belonged; it is no matter of what form the chest is, and not of the smallest consequence whether it is identified or not; nay, more, my Lords, there was no necessity for producing it at all. If every nail of a trunk or every trinket of a watch, or other articles which it might be necessary to found upon in trials of this kind, were to be so particularly described as Mr. Wight has contended for, it would swell indictments to a very inconvenient and unnecessary length.
The objection that the proper trunk was not produced in sufficient time to give the prisoner an opportunity of examining it is certainly a very uncommon one, when it is considered that it was allowed to remain in his own possession until yesterday; and with regard to the watch, all the use I mean to make of it is to identify some letters from Mr. Brodie, which are sealed with the seal appended to it.
The Dean of Faculty—My Lords, what may be the consequence to the prisoners at the bar of your Lordships repelling the present objection I do not know. The gentlemen on the other side of the table have taken care to lay their indictment in such a manner as to leave the counsel for the prisoners altogether in the dark as to the nature of the proof they mean to lead and the manner in which these articles are to be used in evidence; but, my Lords, sure I am of this, that the decision of the present question is of the greatest importance to the law of this country. I am not surprised that the Solicitor-General should say that he will make no answer to the objection, because I am convinced that it admits of none.
It is no light matter the framing of an indictment; the specification of the proofs by which it is to be supported is of the utmost consequence. I am persuaded, my Lords, that I would have no difficulty to satisfy your Lordships, from the nature of the thing itself, that this objection is well founded. But I resort to better evidence. I appeal to the Books of Adjournal on your Lordships’ table, and I call upon the counsel for the Crown to point out one single instance recorded in them where articles have been founded on in an indictment and produced in evidence without being specially described. Having so respectable an authority as the uniform practice of your Lordships and your predecessors to support the objection now stated, you will think well before you introduce an innovation that may be attended with the most dangerous consequences.
We are told that some of the articles in question are of no consequence; if so, why are they here? I will not enter into the question whether the trunk was really produced in the Justiciary Office in proper time or not, as all the indictment says is, that “it will be produced.”
My Lords, there are two kinds of articles produced in criminal trials, first the corpora delicti, to prove that the crime was actually committed; and, secondly, articles from which the leading circumstances are to be inferred. The Lord Advocate admits that the first of these must be particularly described, but denies the necessity of describing the second. This is a distinction not known in the law of this country, and directly contrary to the established forms of criminal procedure. What would be the consequence were it recognised? Suppose, for instance, that a person breaks into a house and leaves his hat behind him; nothing could establish his guilt more clearly than to prove that this hat was his. But although this is only a leading circumstance, would it be enough to say that a hat was to be produced in evidence, without specifying where it was found, or any circumstances attending it, so as to give the accused an opportunity of proving that it belonged to another, and not to him?
I will appeal, my Lords, to the practice of the public prosecutor himself, to show that no such distinction exists. A declaration is an article used in evidence as well as a gold watch, yet his Lordship does not think it sufficient to say “a declaration,” without specifying any other circumstances, such as before whom, and of what date, it was emitted. On the contrary, there are several declarations referred to in this indictment, and they are all particularly described. It is the duty of the public prosecutor to specify every particular, and to say what is meant to be proved by each article, or in what manner it has been used in the commission of the crime charged. In the case of Gordon, the sheep-stealer, a man for whom I was counsel at this bar several years ago, and who still languishes in prison, notwithstanding his having received His Majesty’s pardon[1]—your Lordships refused to allow an article to be produced in evidence which had not been libelled on: and the articles objected to might as well not have been libelled on at all, as in the general and vague manner in which they are mentioned in the indictment.
My Lords, there is another circumstance to which I beg to draw your Lordships’ particular attention. It is our good fortune to live under a mild Government; to live in days when there is no danger to be apprehended from the conduct of the public prosecutor; but worse times may arrive, and it is for your Lordships to reflect upon what use might then be made of the present practice if your Lordships were to allow it to be now introduced. The public prosecutor may, for example, libel upon a watch, and the Clerk of Court may show one watch in the Justiciary Office to the prisoner’s counsel or agent, and against the day of trial may produce another in Court. The principal reason why articles such as the present are mentioned in the indictment is that the prisoner may be certain that these articles, and these articles alone, are to be used in evidence against him; and it is clear that this certainty must be withdrawn from the prisoner if a vague description is permitted to be given of them, because, as I have already mentioned, others may be substituted in their place. If an article of evidence be not particularly described so as to prevent the possibility of doubt with regard to the identity of it, the dearest rights of mankind might be endangered and at the mercy of corrupt men, and no one could say how fatal the consequences might be.
The Lord Advocate—My Lords, I admit the justice of what the Dean of Faculty has stated if such an objection as the present were made to the description of the corpora delicti. If the prisoners were charged with having stolen the watch or trunk mentioned in the indictment, the description there given of them would not be sufficient; but, as they are not the corpora delicti, and are only referred to as circumstances of evidence, I contend that the description is sufficient; but, rather than detain the Court longer with an objection of this kind, I will give up the trunk altogether, as I do not suppose that I shall stand in need of it; I, however, submit the matter to the Court.
The Lord Justice-Clerk—Your Lordships have heard the objection and answers on this point. What is your opinion?
Lord Hailes—My Lords, there is no objection made to the production of the different papers founded on in the indictment, and I do not perceive that there is any force in the objection as to the gold watch; because, although the pannel’s counsel cannot know, from the manner in which it is described in the indictment, what is meant to be proved by it, neither do they know what is intended to be proved by the different witnesses who are cited.
The objection with regard to the trunk appears to me to be much more strong; and I confess that I never saw any article so vaguely stated in an indictment as it is in the present case, viz., “a trunk containing various articles.” It is no good answer to the objection that the proper trunk was not timeously produced, that it was allowed to remain in Brodie’s possession, because that article is founded on in the libel against Smith as well as against him. I am therefore inclined to sustain the objection as to the trunk, but no further.
Lord Eskgrove—My Lords, I am not disposed to abridge in the smallest degree the security of the subjects of this country, although the law is here more attentive to the safety of persons accused than in any other country whatever. Here the pannel must not only be furnished with the names and designations of the witnesses, but he must also be made acquainted with every document and article to be used in evidence against him.
In the present case there are a number of writings, and likewise a variety of articles, founded on in the indictment; there is no objection to the production of the papers, but it is objected on the part of the pannel that the other articles are not particularly described. I do not think, my Lords, that this objection is much aided by the argument founded on the declarations and other parts of the libel being more particularly described than these articles.
The Dean of Faculty has referred your Lordships to the Books of Adjournal, from which he says that it appears to have been the practice to describe such articles more minutely; but I have no doubt that a perusal of these books would furnish many instances where articles have been described as loosely as they are said to be in the present libel; and, my Lords, as the pannel’s counsel have neither produced, nor offered to produce, any decision of this Court finding libels irrelevant from the articles referred to in them being thus described, I am bound to hold the objection to be of no force.
My Lords, I can see no injury that will be sustained by the prisoners by the repelling of the present objection; all the articles were lodged in the hands of the Clerk of Court, and their agent and counsel had an opportunity of examining them. The trunk is no doubt vaguely described, but that appears to me not to be material, because it will not be sufficient for a witness to say that he found papers or other articles in a trunk; he must say that he found them in the trunk shown to him in Court, otherwise his evidence in that particular will be of no consequence. If the pannels should say that this is a different trunk, and that they never saw it before, I would listen to the objection; but as they cannot, and as I can figure no injury to the prisoners in repelling this objection, I am for over-ruling it.
Lord Stonefield—My Lords, I think the description in this case is sufficiently full; therefore I am for repelling the objection.
Lord Swinton—My Lords, the present objection is made in the wrong place; and I cannot so well judge of it in this general shape as I could have done had it been stated when the particular articles came to be used in evidence; but I must judge of it in the form in which it has been brought before the Court.
I think, my Lords, that it ought to be repelled for the reasons your Lordships have already heard, and because no injury can be done to the pannels from these articles not having been more particularly described, as they will have an opportunity of traversing the evidence that may be brought relating to them. There are many of the articles, such as two iron wedges, an iron crow, &c., that would not admit of a more particular description than has been given. Upon the whole, my Lords, I am for repelling the objection.
The Lord Justice-Clerk—My Lords, the present question is of great importance to the law of this country. I am one of those who are always for giving fair-play to pannels, and will never allow any advantage to be taken of them; but I am likewise for giving fair-play to evidence. It is frequently necessary, my Lords, that the testimony of witnesses should be elucidated by articles referred to being produced; but if the present objections were sustained, I am afraid it would strike against the admissibility of this kind of evidence altogether; because, let a public prosecutor describe such articles with the greatest attention, it still may be contended that they admitted of a more accurate description than the one given.
By the former state of our law the prosecutor was not allowed to prove anything that was not particularly specified in the libel; but the Act 153, Parliament 11th, James VI., was introduced to obviate this defect in our law, and by that Act the prosecutor is allowed to prove every circumstance to substantiate the charge, or in general art and part of the charge. It is very true, my Lords, that the humanity of public prosecutors of late years has induced them to be more special than they had any occasion to be, but surely they are not cut off from the generality allowed them by law, although such generality may have been deviated from through lenity in practice. Apply this to the present case. It is true that the Lord Advocate, as public prosecutor, has been induced to state particular circumstances, and to specify the articles to be founded on; yet that does not alter the law, nor deprive him of the generality which he is allowed by law. As the names of witnesses are given, without specifying what they are to say, in the same way it is only necessary to state that such articles are to be produced in evidence, but not necessary to specify a description of them; and it is the duty of the prisoner himself, or those who act for him, to survey them when lodged in the Justiciary Office. As there is no precise time against which articles to be founded on are required to be lodged in the Justiciary Office, there appears to be no undue delay in lodging this trunk. Had it been pled that it was not lodged debito tempore, and that the pannel had been injured thereby, then a delay of the trial must have taken place.
I remember it once happened on a circuit that the articles founded on in the libel were only lodged the very morning of the trial in the Clerk’s hands; but I then refused to allow them to be founded on, because the pannel had not a reasonable time to prepare himself against evidence that might arise from the production of these articles; but the present case is very different, and therefore, upon the whole, I am for repelling the objection.
Mr. John Clerk—My Lord Justice-Clerk, before the interlocutor is written out, I beg leave to make one objection in behalf of the pannel, George Smith.
The Lord Justice-Clerk—What! After the Court have delivered their opinions, it is not decent in you to propose to say anything, and I apprehend the prisoners are in no danger of suffering anything by your not being allowed to supply the defects of the Dean of Faculty.
Mr. John Clerk—My Lord, the Dean of Faculty has no authority to plead for my client.
The Dean of Faculty then moved the Court to allow the general objection to be entered upon record, and proposed to repeat it and refer to it as often as any of the particular articles came to be produced in evidence, which was accordingly agreed to, and the following interlocutor was pronounced repelling the objection:—
The Lord Justice-Clerk and Lords Commissioners of Justiciary having considered the foregoing debate, they repel the objection stated to producing and founding on the articles specified in the objection and mentioned in the indictment, and allow them to be adduced in the course of the trial.
Robt. M‘Queen, I.P.D.
The prosecutor, for proof of the indictment, then proceeded to adduce the following witnesses, who were all lawfully sworn, purged of malice and partial counsel, and emitted their depositions viva voce in presence of the Court and jury, without being reduced in writing, in terms of the late statute.
Evidence for Prosecution.
William Scott
1. William Scott, Procurator-Fiscal of the county of Edinburgh, called in and sworn.
Examined by Mr. Murray—Mr. Scott, you know the prisoners at the bar? Were you present when they emitted certain declarations before the Sheriff-depute of Edinburgh and his substitute?
Witness—I was.
Mr. Murray—Look at these declarations, and tell the Court and the gentlemen of the jury if they were emitted in your presence by the pannel, George Smith, freely and voluntarily.
Witness—They were; and the prisoner appeared to me at the time cool and recollected.
Mr. Murray—Look at this declaration. Was it emitted in your presence by the other pannel, William Brodie, freely and voluntarily, and he was cool and recollected?
Witness—It was emitted in my presence freely and voluntarily, and he was cool and recollected.
Mr. Murray—Do you know anything concerning a warrant that was applied for against William Brodie in the month of March last? If you do, tell the Court and the gentlemen of the jury what happened in consequence of it?
Witness—Upon the afternoon of Monday, the 10th of March last, I, as Procurator-Fiscal, gave in a petition in my own name to the Sheriff of Edinburgh, charging Mr. Brodie with breaking into the Excise Office, and praying for a warrant to apprehend him. A warrant was accordingly granted, and search diligently made for him that night, but he was not found, and I afterwards learned that he had gone off for London on the day preceding.
Cross-examined by Mr. John Clerk, for George Smith—Mr. Scott, you say you were present when George Smith emitted the declarations which have been shown you; did Smith, in the course of his different examinations, say anything more than is contained in these declarations?
Witness—I do not think he did; everything material was taken down. No compulsion or undue means was used to induce the prisoners to sign these declarations.
Joseph Mack
2. Joseph Mack, writer in the Sheriff-Clerk’s Office of Edinburgh, called in and sworn, and shown the declarations above mentioned.
Witness—These declarations were written by me, to the dictation of the Sheriff, and were emitted by the pannels freely and voluntarily, and the pannels appeared to me to be cool and recollected when emitting them.
Cross-examined by Mr. John Clerk—Was everything which Smith declared when examined taken down?
Witness—Everything that was material. With regard to the robbery of Bruce’s shop—[Here the Court stopped the witness, as that was a matter which was not before them.]
The Lord Justice-Clerk—Did he desire anything to be taken down that was not?
Witness—No.
Thomas Longlands
3. Thomas Longlands, solicitor-at-law in London, called in and sworn.
Examined by Mr. William Tait—Mr. Longlands, did you hear of William Brodie, the prisoner at the bar, having fled from this country in March last, and of his having been brought back? Tell the Court and the gentlemen of the jury what you know of the matter?
Witness—In the month of June or July last I was employed by the officers of the Crown for Scotland to take such steps as appeared to me to be proper for the discovery of Mr. Brodie. In consequence of this employment I called frequently at the Secretary of State’s Office, and had several conversations with Mr. Fraser, Under-Secretary in the office of Lord Carmarthen, and gave them the information I had received from Scotland. I likewise waited upon Sir Sampson Wright, of the Public Office, Bow Street, whose assistance I judged necessary to call in as to the proper measures to be pursued. As the information received gave reason to suspect that Mr. Brodie was at Flushing, Ostend, or some place in Holland, it was agreed upon to send a messenger immediately in search of him. Sir Sampson Wright recommended to me a Mr. Groves from his office as a proper person to send to the Continent in search of Mr. Brodie, and I accordingly despatched him with proper instructions. Mr. Groves traced Mr. Brodie to Ostend, and learned that he had been there upon the 4th of June, His Majesty’s birthday, and he was afterwards traced to Amsterdam, where he was apprehended, identified, and committed to prison. Upon proper application, he was delivered up to Mr. Groves, and was brought from thence to London by him. Immediately upon his arrival at London he was examined before Sir Sampson Wright, and committed to Tothilfields Bridewell; some time afterwards he was sent to this country. I was present at the examination of the person brought back from Amsterdam, and I know the prisoner at the bar to be him. There was a trunk containing linens and a variety of other articles, belonging to Mr. Brodie, brought with him from Amsterdam; and I received from Mr. Cartmeal, one of the persons who came along with him, two watches, twenty crowns, and some other articles, which he said were found upon Mr. Brodie; and the watch now upon the table I know to be one of them, having taken particular notice of the maker’s name and number. [The counsel for the pannels here repeated the objection against adducing the watch, as mentioned in the general objection and interlocutor before taken down.] There was likewise another trunk belonging to Mr. Brodie, which was sent over from Ostend by Sir John Potter, in consequence of a letter written to him in my presence by Mr. Groves, after Brodie’s return to London. This trunk, upon its being brought to London, was opened by Sir Sampson Wright in my presence, and in the course of examining the contents of it I discovered a wrapper with some papers, which I opened, and some of the papers appearing to me to be important, I transmitted them to the Lord Advocate. [Here the unsigned scrolls were shown to the witness.] Both Sir Sampson Wright and I put our initials to them, and I am sure that these are the same, as well from seeing my initials as from the strength of some of the expressions, which made a great impression upon me at the time. [The state of affairs and letters of credit were likewise shown to the witness.] I have seen these before; they came in a packet to Sir Sampson Wright from Mr. Rich, the English resident at Amsterdam, and Sir Sampson Wright delivered to me the letter in which they came with them inclosed.
Cross-examined by the Dean of Faculty—Mr. Longlands, have you any other cause of knowledge concerning the trunks and other articles being the property of Mr. Brodie, and the same which were brought from Ostend and Amsterdam, than the information of Sir Sampson Wright and Mr. Groves?
Witness—No other cause of knowledge than what I have already mentioned, namely, the letters accompanying the same, which I saw, and my being present when the trunks were opened.
John Geddes
4. John Geddes, tobacconist in Mid-Calder, called in and sworn.
Examined by the Solicitor-General—Were you lately in London? Do you know the prisoner? Tell the jury what you know about him?
Witness—I was in London in the month of March last, and my wife and I took our passage in the “Endeavour,” of Carron, Captain Dent, bound for Leith. We went on board on a Saturday, and the next day, Sunday, the vessel fell two or three miles down the river, and then we cast anchor at Blackwall. In the evening the master went on shore to get hands to man her, leaving me and my wife on board. About twelve at night a passenger, who appeared sickly, came on board, in company with Mr. Hamilton and Mr. Pinkerton, two of the owners of the vessel, and another gentleman I did not know. These gentlemen remained about half an hour, and then all went ashore, except the passenger, who remained on board. He was dressed in a blue great-coat, with a red collar, round wig, black vest, breeches, and boots. He was allotted a bed in the state-room, near the fire, as he was sick. The next morning the vessel set sail, but afterwards ran aground opposite to Tilbury Point, where she remained about eight or ten days, and we did not get clear of the Thames for a fortnight. During all that time the passenger remained on board, except one day that he, along with the master of the vessel and my wife and I, went on shore, and dined at a neighbouring village, and another day that he went ashore by himself to get a bottle of milk. For the first two or three days after the passenger came on board we called him “the gentleman,” as we did not know his name, but, upon my inquiring of him what his name was, he told me it was John Dixon.
The Solicitor-General—Would you know that person again?
Witness—I would.
The Solicitor-General—Look at the prisoners at the bar and say if you know either of them?
[Here the witness pointed out Mr. Brodie to be the same person that had called himself John Dixon.]—On getting out to sea Mr. Dixon delivered to the captain a letter from Mr. Hamilton or Mr. Pinkerton, but, although I desired him to let me read it, I did not see it. In consequence of this, the captain altered his course and steered for Holland, and the vessel, although bound for Leith, sailed to Flushing. I do not think she was driven there by contrary winds, as the wind was south-west, and fairer for Newcastle or Leith than for Holland. During the voyage, Mr. Dixon complained much of a sore throat. When we arrived at Flushing we cleaned ourselves and went ashore, and Mr. Dixon set off for Ostend in a skiff which he hired for that purpose. On shore, before he left, Mr. Dixon gave me a packet containing two letters, one of which had another within it, to carry to Scotland to be delivered in Edinburgh. One of the letters was directed to Mr. Michael Henderson, stabler in the Grassmarket, in which there was one inclosed to Mrs. Anne Grant, Cant’s Close, and the other to Mr. Matthew Sheriff, upholsterer in Edinburgh, signed and dated as mentioned in the indictment. We did no business at Flushing, and I am of opinion that the ship did not come there with that intention. After landing Mr. Dixon we sailed for Leith. When I arrived in Leith, from the accounts I heard about Brodie, I was convinced that Dixon and Brodie were the same person. Next day I went to Mid-Calder, and about three weeks afterwards was at Dalkeith, where I had occasion to see the newspapers, and the description of Brodie therein given confirmed me in the above suspicion. I then delivered the letters to Sheriff Cockburn. I had previously opened the packet and read them. [The witness was here shown the letters libelled on.] I know that these are the letters I received from the prisoner and delivered to the Sheriff.
The Solicitor-General—Did Brodie say that he had any business at Flushing?
Witness—He mentioned that he had business at Ostend, and Captain Dent said he was to wait till he returned, and that he supposed he belonged to the Carron Company; but when the wind came fair, Captain Dent said he would not wait for him, and the devil a bit of business he supposed he had.
Cross-examined by the Dean of Faculty—You have told us that you went ashore when you arrived at Flushing. Pray, sir, did you make any purchases there?
Witness—None, except a piece or two of nankeen for breeches to myself.
The Dean of Faculty—Did you purchase nothing else?
Witness—Nothing, except two or three handkerchiefs for my own use.
The Dean of Faculty—You will remember, sir, that you are upon your great oath, and that it is your duty to tell the whole truth.
Lord Hailes—My Lords, the witness should be informed that if he purchased any contraband goods he has nothing to fear from acknowledging that he did so.
The Lord Justice-Clerk—It is certainly very proper. [To witness]—John Geddes, if you made any purchases of contraband goods when you was at Flushing, it is your duty to inform the Court and the gentlemen of the jury that you did so, and you have nothing to fear from such an acknowledgment, because whatever you say here will be no evidence against you afterwards in the Court of Exchequer or elsewhere.
The Dean of Faculty—Did you purchase no lace, sir, when you was at Flushing?
Witness—A few yards.
The Dean of Faculty—Why, then, did you say that you purchased nothing except the nankeen and the handkerchiefs?
Witness—It was my wife and not me that purchased it.
The Dean of Faculty—Did you offer the lace for sale?
Witness—No; there is part of it about a cloak which my wife has here with her, and I believe part of it about her sister’s.
The Dean of Faculty—And what became of the rest of it? Remember, sir, you are upon your great oath.
Witness—That was it all, except a few yards I sold at Bathgate for twenty-two shillings.
The Dean of Faculty—Did you not say even now that you had offered none of it for sale?
Witness—I said that I offered none of it for sale in this place.
The Dean of Faculty—Did you purchase no tobacco in Flushing?
Witness—I did not, except a little for chewing.
The Dean of Faculty—Did you purchase any gin?
Witness—None, except a little for sea store.
The Dean of Faculty—Pray, sir, when did you open these letters you have told us of? Was it before or after you came to Leith?
Witness—It was after.
The Dean of Faculty—You told us, sir, that upon reading the newspapers you discovered that Dixon and Brodie were one and the same person. Pray, sir, when or where did you first read the newspapers?
Witness—At Dalkeith.
The Dean of Faculty—How long was that after your arrival?
Witness—Three weeks.
The Dean of Faculty—And pray, sir, what was the reason that in all that time you did not deliver these letters to the persons to whom they were directed?
Witness—I did not remember that I had such letters when I was in Edinburgh myself, and I afterwards wished my brother-in-law to deliver them.
The Dean of Faculty—Did you open the letters?
Witness—I did.
The Dean of Faculty—And what was your reason for doing so?
Witness—I opened them and delivered them to the Sheriff for the good of my country.
The Dean of Faculty—And would it not have been as much for the good of the country to have delivered them without opening them?
Witness—I just opened them, and that’s all; I can give no other reason.
The Dean of Faculty—Did you inform any person that you had such letters?
Witness—I did; I informed John Tweddle, my brother-in-law, who advised me to deliver them to the persons for whom they were intended. I afterwards showed them to a gentleman named Mr. Learmonth in Linlithgow, who wrote a letter by me to a gentleman of this place.[2] By him I was carried to Mr. Erskine, but he would give me no advice, and therefore I returned home to Mid-Calder. That same evening, or early next morning, Mr. Scott, Procurator-Fiscal, and Mr. Williamson, messenger, called upon me, and I accompanied them to Edinburgh and delivered the letters to the Sheriff.
The Dean of Faculty—My Lords, as the witness has mentioned his having called upon me, I beg leave to state to the Court what passed upon the occasion. He was brought to my house by a gentleman, and he showed me the letters. I informed him that I was counsel for Mr. Brodie; that he himself knew best the directions that he had received from the person who committed these letters to his charge; and that I could give him no other advice than this, that he ought to do in the matter that which his own conscience should point out to him as most proper.
The Lord Justice-Clerk—That was a very proper advice, and was just what I would have expected from the Dean of Faculty.
The Lord Advocate—My Lords, you will have observed that there were three letters from the prisoner delivered up. It was only judged necessary to libel on two of them; but if the prisoner thinks that the other letter, or any of his other papers in my possession, will be of the least service to him in supporting his defence, I have no objection to produce them.
Margaret Tweddle
5. Margaret Tweddle, spouse of the said John Geddes, called in and sworn.
Witness—I was in London with my husband in the month of March last, and went with him on board of a vessel bound for Leith. One night, when it was dark, a person, whom I now see a prisoner at the bar, and some others with him, came on board. The prisoner remained on board, but the others went ashore in about half-an-hour afterwards. I think the person had a wig on when he came on board, and he appeared to be in bad health. He passed by the name of John Dixon. The vessel sailed for the coast of Holland, and when she arrived there the prisoner went on shore. I saw my husband receive a packet of letters from Mr. Dixon; but I know nothing more of them. I never saw these letters afterwards.
Cross-examined by the Dean of Faculty—Did you or your husband make any purchases while in Flushing?
The Lord Justice-Clerk—Margaret, if you or your husband purchased any contraband goods when you were at Flushing you will inform the Court and the gentlemen of the jury that you did so, and you have nothing to fear from such an acknowledgment, because whatever you say here will be no evidence against you afterwards in the Court of Exchequer or elsewhere.
Witness—We purchased some pieces of nankeen, some handkerchiefs, and some yards of lace.
Robert Smith
6. Robert Smith, wright in Edinburgh, called in and sworn.
Witness—I was some time ago foreman to the pannel, Mr. Brodie, and I remember to have been sent for by him upon the Sunday morning, the 9th of March, at eight o’clock, after it was reported that the Excise Office had been broke into. The message was not particular, but such a one as I usually received from him when he wanted to give me orders about some work, as he frequently sent for me for that purpose, especially if he was going to the country. When I came to him he asked me if there were any news about the people who had broke into the Excise. I answered that I had been informed that George Smith was committed to prison, and that Brown had been sent into England in search of Inglis & Horner’s goods. I added that I hoped he, Mr. Brodie, had no concern in these depredations; but he returned to me no answer. The reason I asked this question was that I had often seen my master in their company, and knew him to be intimate with them. Mr. Brodie told me he was going out of town for a few days, and sent me a message for a waistcoat and pair of breeches; but before my return he was gone, and I did not see him again till after he was brought back to this country. On the Monday evening following, the 10th of March, a search was made for him, and several doors of his house were broken open, in virtue of a warrant from the Sheriff, as I was informed. [Here the witness was shown the two letters founded on in the indictment, and desired to say whether or not they were in the handwriting of Mr. Brodie.] I have seen the handwriting of Mr. Brodie, and I think the writing of these letters very like his, but I never saw Mr. Brodie subscribe with initials; and as I am no judge of writing, I cannot say whether I believe these letters to be written by Mr. Brodie or not. [Here the witness was shown the unsigned scrolls, and desired to say whether or not he believed they were in the handwriting of Mr. Brodie.] I never saw Mr. Brodie write so bad a hand as these letters are written in, nor after the manner in which they are written, and I do not think that they have been wrote by Mr. Brodie. [Here the state of affairs referred to in the indictment was shown to the witness.] I think this is very like the handwriting of Mr. Brodie, much more so than any of the others.
James Laing
7. James Laing, writer in Edinburgh, called in and sworn.
Witness—I am assistant clerk in the Council Chamber. I know Mr. Brodie, the prisoner at the bar. I have seen him write, and I am a little acquainted with his handwriting. [Here the two letters were shown to the witness.] The writing of these letters is very like Mr. Brodie’s handwriting. I think they have been wrote by him. [Here the unsigned scrolls were shown to the witness.] I think these are of Mr. Brodie’s handwriting too, though worse written. [State of affairs shown to the witness.] I think this also is written by Mr. Brodie.
John Macleish
8. John Macleish, clerk to Hugh Buchan, City Chamberlain of Edinburgh, called in and sworn.
Witness—I know Mr. Brodie, the prisoner at the bar, and have had some opportunity of knowing his handwriting. I have got receipts from him in the Chamberlain’s office, and have received cards from him. I have likewise seen him write in his own shop. [Here the witness was shown the two letters.] I think these letters are of his handwriting. [Shown the scrolls.] I never saw Mr. Brodie write in so crowded a way, or interline so much, but, notwithstanding, I think that these are of his handwriting. [State of affairs shown the witness.] I think that this also is of Mr. Brodie’s handwriting.
Cross-examined by the Dean of Faculty—How do you come to know Mr. Brodie’s writing so exactly?
Witness—From many accounts and receipts, of his writing, which I have in my custody belonging to the office.
John Duncan
9. John Duncan, door-keeper to the Excise Office, Edinburgh, called in and sworn.
Witness—I have been in that office for thirty-seven years. The doors of the Excise Office, when it was kept in the Canongate, were usually locked by me about eight o’clock at night, and I carried the key immediately thereafter to the housekeeper. A watch was set to guard it about ten o’clock, and the night watchman went away about five in the morning. I remember to have locked the door on Wednesday, the 5th of March last, about a quarter after eight o’clock in the evening, and I gave the key to one of Mr. Dundas, the housekeeper’s, maid-servants. The cashier’s room lay within the outer door, which I had locked, as before mentioned, and it had a double door.
Cross-examined by Mr. Clerk, for George Smith—Pray, sir, was the Excise Office kept in one or in two houses?
Witness—The Excise Office was kept in a large house; but there was likewise a small house fronting and adjoining the great one, in which Mr. Broughton’s office and the Register of Seizures were kept. There was no communication from the one to the other without going out to the open air, and the whole were in one court, inclosed by a parapet wall and iron rail.
William Mackay
10. William Mackay, porter in the Canongate of Edinburgh, called in and sworn.
Witness—I was employed as a watch to guard the Excise Office when it was kept in Chessels’s Buildings, and upon Wednesday, the 5th day of March last, I went to the office at the usual hour, which was a little before ten o’clock at night. I found one of the leaves of the outer door open, and the passage door and the door of the cashier’s room also open; and upon making this discovery I went to Mr. Dundas, the housekeeper’s, and inquired of the maid who had been last at the office, as the doors were open. The maid answered John Duncan, the last witness, had left it about a quarter after eight o’clock. Mr. Dundas’s son, hearing me make this inquiry, asked what was the matter. When I told him that the door was broke open, he said, “Then, something worse is done.” Immediately Mr. and Mrs. Dundas and the whole family went into the office with me and examined the cashier’s room; we found all the desks and presses broke open, and the coulter of a plough, and two iron wedges, lying in the room; and we likewise found a spur in the hall, with part of the leather of it torn. Mr. Dundas immediately sent me for Mr. Alexander Thomson, the accountant. I found Mr. Thomson, and he returned with me to the Excise Office. [Here the witness was shown the coulter of the plough, the two iron wedges, and the spur.] These are the same articles which I saw in the Excise Office. [The counsel for the pannels here repeated the objection against adducing the coulter and two wedges, as mentioned in the general objection and interlocutor before taken down.]
Alexander Thomson
11. Alexander Thomson, accountant of Excise, called in and sworn.
Witness—I remember that the Excise Office was broke into on Wednesday, the 5th of March last. When I left the office at the usual hour that night, about eight o’clock, I locked the door of the cashier’s room before I left, and carried the key away with me. I saw John Duncan, the door-keeper, in the hall as I came out. I left in two concealed drawers below the desk about £600 sterling, and in the desk itself £15 16s. 3½d., being two-thirds of the proceeds of a seizure sent from Greenock, to be divided amongst three people. About ten o’clock the same evening the office porter, or watchman, came to me and informed me that the Excise Office had been broken into. I immediately repaired to the office, and found Mr. Dundas, the housekeeper, and Mr. Pearson, the secretary, there; and, along with them, I examined the premises. The outer door and the passage door appeared to have been opened without violence, but the door of the cashier’s room seemed to have been forced with a lever or other instrument; the door of a small press in the room appeared likewise to have been forced open, and a few shillings, and some stamps for receipts that were in it, carried off. The key of my desk, which I usually kept in this place, had likewise been taken out, and the desk opened with it. The £15 odds, which I had left in the desk, were gone, and also a receipt for £7 18s. 2d., but the concealed drawers, in which the £600 was contained, were untouched. These drawers cannot be opened without first opening the desk, and the keyhole is concealed by a slip of wood, which might escape a slight observer. Accordingly it had remained untouched, although the key of it lay in the desk. Behind the door there was left the coulter of a plough and two iron wedges—[Here these articles were shown to the witness]—the same as these now on the table.
Cross-examined by Mr. John Clerk for George Smith—Pray, Mr. Thomson, was the Excise Office, when in the Canongate, kept in one house or in two houses?
Witness—It was kept in three houses, or in one large house, consisting of a front and two wings, and, besides this principal house, there was a small one fronting, and nearly adjoining to it, in which Mr. Broughton’s office, Mr. Dick’s office, and the Register of Seizures were kept.
Laurence Dundas
12. Laurence Dundas, housekeeper of the Excise Office, called in and sworn.
Witness—There was a practice, previous to the time when the Excise Office was broke into, of locking the door betwixt eight and nine o’clock at night, and lodging the key in my house, and of putting a watch upon it at ten o’clock. I remember that upon Wednesday, the 5th of March last, the door was locked at the usual hour, and the key left by John Duncan at my house. A little before ten o’clock that night, William Mackay, the porter employed to watch the office, came to my house and gave information that the office had been broke open. I immediately went to the office, and found the outer door, the passage door, and the door of the cashier’s room, all open. This last-mentioned door seemed to have been forced with some instrument. Within the room I found the coulter of a plough and two iron wedges, all of which I now observe upon the table. Every drawer in the room, except the money drawers, seemed to have been forced open. I immediately sent for Mr. Thomson, the accountant, and Mr. Pearson, the secretary, and both of them immediately came to the office. Mr. Thomson told me that he had about £17 in his desk, which he supposed was all gone, but he hoped that the money drawers were safe. The key of the money drawers was found amongst others lying in the desk.
Cross-examined by Mr. John Clerk, for George Smith—Mr. Dundas, was the Excise Office, when in Chessel’s Buildings, kept in one house or in two houses?
Witness—Principally in one house, but there was likewise another small house in which Mr. Broughton’s office, Mr. Dick’s office, and the Register of Seizures were kept; both houses were inclosed with an iron rail.
Janet Baxter
13. Janet Baxter, servant to Adam Pearson, assistant secretary of the Excise, called in and sworn.
Witness—I was out upon a message about eight o’clock at night on Wednesday, the 5th of March last, and, returning homewards, I met with an acquaintance, with whom I conversed for a little in the entry to Chessels’s Buildings, in which my master lived. I then went down the close, and on my way down I saw a man, dressed in a whitish great-coat and slouch hat, leaning over the rails at the entry to the court, and, judging him to be a light or suspicious person, I was afraid of him, and ran into my master’s house.
James Bonar
14. James Bonar, deputy-solicitor of Excise, Edinburgh, called in and sworn.
Witness—I recollect having occasion to call at the Excise Office upon Wednesday, the 5th of March last, about half-past eight in the evening, and as I thought it was probable that there might be still some person in the office, I went straight forward to the door without calling for the key, and finding the door on the latch, I opened it and went in. Just as I entered, a man, who appeared to be dressed in a black coat and cocked hat, stepped out. He seemed to be in a hurry, and I stepped aside to give way to him. He was a square-built man, and was rather taller than me. I took no suspicion, thinking it was some of the people belonging to the office, detained later than usual. I went upstairs to the solicitor’s office, and into the room in which I usually write. I remained there about ten minutes, came down again, and then went away. I saw no person either in the entry or the court as I came out.
Isobel Wilson
15. Isobel Wilson, spouse of Adam Robertson, wright in Duddingston, called in and sworn.
Examined by the Solicitor-General—Pray, madam, do you remember anything of two persons coming to your house in the month of March last?
Witness—I did not remember, at first, anything of the matter, but having afterwards seen John Brown [a succeeding witness] in the Sheriff-Clerk’s Office, he mentioned some circumstances which passed upon the occasion, which brought to my recollection that there were two persons in my house at the time you mentioned, and I think that Brown was one of them. They called for a bottle of porter, which they drank and paid for, but I do not recollect anything else that passed upon the occasion.
John Kinnear
16. John Kinnear, servant to the Earl of Abercorn at Duddingston, called in and sworn.
Witness—I recollect that the coulter of a plough with which I had been at work and two iron wedges were stolen from a field some time last spring, but whether in February or March I cannot say, only I recollect that there was then snow upon the ground. I loosed from work between two and three o’clock on the day on which the articles were stolen, and went to Edinburgh, and on my way thither, about four o’clock, I observed two men in blackish clothes standing upon the ploughed land by the plough to which the coulter belonged, and there was a black dog at some distance from them.[3] When I came to work next morning I found the coulter of the plough and the wedges had been taken away. [Here the coulter and the wedges referred to in the indictment were shown to the witness.] These are the coulter and wedges that were stolen from my plough.
Cross-examined by Mr. John Clerk, for George Smith—How do you come to know that?
Witness—I know this to be the same coulter, my attention being called to it from this circumstance particularly, that a short time before it was stolen it was sent to a smith, with instructions to sharpen it the whole length, that it might be fit for cutting the turf which was to be ploughed up. He did not observe these instructions, but returned it in the situation it is now in.
Grahame Campbell
17. Grahame Campbell, sometime servant to the pannel, George Smith, called in and sworn.
Witness—I was servant to the prisoner, George Smith, and I know the other prisoner, Mr. Brodie. I never heard of the Excise Office being broke until I was apprehended, along with my mistress and Andrew Ainslie, and committed to prison in the beginning of last spring. I have seen Mr. Brodie, and likewise Andrew Ainslie and John Brown, often in Mr. Smith’s house, and they were all very frequently there in company together. In particular I remember their being all there one night about the dusk of the evening, not long before I was apprehended, but as they were so frequently at my master’s house I cannot distinguish that night from any other, nor can I say at what hour they came, only I remember they were in a room above-stairs, and that Mr. Brodie passed through the shop and asked my mistress how she did to-night. Mr. Brodie was at this time in an old-fashioned black coat, and, to the best of my knowledge, I never saw him in the same dress before. I have seen him in other black clothes, but they were always of a newer fashion. My master, Smith, was upstairs with Brown and Ainslie, when Mr. Brodie came in and joined them. I do not know when they went out, as I was employed below-stairs in the back cellar; but I think they remained together a considerable time before they went out. I believe they all went out together, for when I went into the kitchen my mistress desired me to go upstairs to put the room in order and wipe down the table, which I did, and at that time all of them were gone. My master returned in something more than an hour, and said he had been seeing Mr. Maclean, who is Mr. Drysdale’s waiter. Mr. Ainslie had been in before him, but had gone out again, and Brown came in in quest of him, and also went out again. They both returned about ten or eleven o’clock, and Mr. Brodie then came back likewise. Mr. Brodie had on at this time the whitish clothes which he usually wore, and as he passed through the shop he again asked my mistress how she did to-night. I expressed my surprise to my mistress that Mr. Brodie should wear such a strange dress when he came in the first time in his old black clothes, and she answered that it was his frolick; but I took no notice to her afterwards of his having changed his dress. They all supped in the kitchen, except Mr. Brodie, who would not sit down, but walked up and down the room. Brown and Ainslie usually supped at my master’s. They remained together about two hours. Mr. Brodie went out first, and Mr. Brown and Mr. Ainslie soon thereafter, with an intention, as they first said, to go to bed. I think they said afterwards that they were going to play cards with Mr. Maclean. My master, George Smith, did not go out again that night.
Cross-examined by the Dean of Faculty, for Brodie—You have mentioned that Brown and Ainslie and the prisoners at the bar, when they first met, were a considerable while together. In what manner were they employed?
Witness—I was for the most part down below in the back cellar; but they had some bottles of porter together, and either a cold fowl or some herrings to eat.
The Dean of Faculty—You have said that Mr. Brodie and Brown and Ainslie were frequently in your master’s house. What did they do when together; did you ever see them play at any game—at cards or at dice?
Witness—I have often seen them play both at cards and at dice, sometimes in the kitchen and at others in the room above-stairs, but chiefly at dice, when Mr. Brodie was present.
The Lord Justice-Clerk—My Lord Advocate, is the witness now at liberty? I understand she has been detained in prison for some time past?
The Lord Advocate—There is no reason for detaining her any longer; she was only confined until her evidence should be given in this trial.
The Lord Justice-Clerk—Grahame Campbell, you are now at your liberty.
Mary Hubbart or Hubburt
18. Mary Hubbart or Hubburt was then called.
Mr. John Clerk, for Smith—My Lords, the witness now called is the wife of George Smith, the pannel at the bar, and therefore I object to her evidence being taken in this trial.
The Lord Advocate—My Lords, I certainly do not intend to examine this witness as to any particular that relates to the conduct of her husband, but I conceive that she is an unexceptionable witness against the other pannel, Mr. Brodie, and that I am entitled to examine her as to him, if I keep clear of any question that has a tendency to bring out the guilt of her husband.
Mr. John Clerk—My Lords, I desire your particular attention to this, that the two pannels are joined together in one indictment, that they are charged with being guilty of the same crime; and that they are in every respect in the same circumstances. I have no conception, my Lords, of any question tending to the crimination of Mr. Brodie that will not at the same time bring out the guilt of Mr. Smith.
The Lord Advocate—My Lords, that I may remove all apprehensions concerning the questions I mean to put, I shall only ask the witness whether Mr. Brodie was in her house on Wednesday, the 5th of March last; when he came there; and in what manner he was then dressed?
Lord Hailes—My Lords, it is clear that this woman cannot be examined as a witness against her husband; but at the same time, although her husband and Brodie are here tried upon one indictment, I see nothing to prevent my Lord Advocate from putting such questions to her as do not affect her own husband, but only the other pannel.
Lord Eskgrove—My Lords, I am of the opinion which has been delivered by my Lord Hailes.
Lord Stonefield—My Lords, I am of the same opinion.
Lord Swinton—My Lords, I agree with the opinion given.
The Lord Justice-Clerk—My Lords, there is no doubt that a wife cannot be received as a witness whether for or against her husband, and her situation is different by our law from that of all other near relations. If a son, for instance, is brought forward as a witness against his father, he may no doubt decline to bear testimony, and no Court of law can compel him to do so; but if he is willing to give his evidence it may be received. A wife, on the contrary, cannot be received as a witness, even though she be willing; a judge can pay no regard to what she says either for or against her husband; and, supposing she had no objection to give her testimony even to hang him, which might happen, it must be refused; therefore, my Lords, whatever this woman says that may infer guilt against her husband must be totally thrown out of consideration; nor will I suffer one single question to be put or her to say a single word from which his guilt can be inferred; and the jury are not to give any attention whatever to it, if it should happen that anything should drop to the prejudice of her husband.
Mr. John Clerk—My Lord Justice-Clerk—
The Lord Justice-Clerk—What! Mr. Clerk, would you insist on being heard after the Court have delivered their opinions? It is most indecent to attempt it.
Mr. John Clerk—I was heard, my Lord, on the general point of the admissibility of this witness, but not on the special objections which I have to the questions which my Lord Advocate proposes to put, and on which the Court have not delivered any opinion.
The Lord Justice-Clerk—Mr. Clerk, this is really intolerable.
The Dean of Faculty—My Lord, although as counsel for Mr. Brodie I am not entitled to be heard on this subject, I find myself called upon to interfere as Dean of Faculty. It is perhaps not strictly in order for Mr. Clerk to insist on being heard after your Lordships have delivered your opinions, but some indulgence ought to be shown to a young gentleman.
Lord Hailes—My Lord Justice-Clerk, though Mr. Clerk stated his objection generally, yet he did not enter into particulars, and I think he may be allowed now to state what particulars he meant to insist on.
The Lord Justice-Clerk—Mr. Clerk, we will hear what you have to say.
Mr. John Clerk—My Lord, I mean to offer a special objection to the interrogatory mentioned by my Lord Advocate, on which I have not yet been heard, nor do I understand that any opinion has been given respecting it by your Lordships. It is proposed to ask this woman what dress Mr. Brodie wore when in her husband’s house on the 5th of March last previous to the robbery of the Excise Office. I formerly observed, my Lords, that my client and Mr. Brodie are accused of the same crime, and are nearly in the same circumstances, and this is a question from the answer to which it may appear that Mr. Brodie was guilty of the robbery laid to his charge. But at the same time, my Lords, it will appear that Mr. Brodie was at the house of my client in a suspicious dress and in suspicious circumstances, and will it not be from thence concluded that my client was engaged with him in the very design which he at that time intended to put in execution? Such a presumption would likewise be most forcibly corroborated by their known intimacy, by their being frequently concerned in the same pursuits, and, above all, by the presence of the other two persons who are supposed to have committed this crime. I say, my Lords, on the supposition that Mr. Brodie is guilty, the circumstance of his dress is one of the strongest presumptions that can be figured against my client.
But, farther, my Lords, my client has an interest in preventing the conviction of Mr. Brodie; if his guilt is not proved an inference is afforded me of the innocence of my client, for Mr. Brodie being with my client so recently before the crime was committed presumes that they were employed in the same manner; and the suspicion against Mr. Brodie being groundless is an argument that the suspicion against my client is equally groundless. Now, my Lords, if this woman be examined her evidence may, though indirectly, tend to the crimination of her husband. And if the law does not allow the evidence of a wife to be taken against her husband, I cannot see that there is a good distinction between her evidence as taken directly and indirectly; and therefore, my Lords, I hope that your Lordships will sustain the objection.
The Lord Justice-Clerk—The Court will take care not to allow the witness to give any answer against her husband. But, as she is a good witness against Brodie, the Court cannot help it if, by establishing his guilt, a presumption thereby arises against Smith. I am therefore for repelling the objection.
The objection was repelled accordingly.
[The witness was then brought in.[4]]
Mr. Wight, for the pannel Brodie—My Lords, I must object to this witness upon another ground, and shall not take up the time of the Court any longer than simply to state the objection, which appears to me perfectly irresistible. The law of this country requires that the name and designation of every witness to be examined against the pannels should be intimated to them at least fifteen days before; but the name of the woman who now appears in Court is not to be found in the list of witnesses served upon the prisoner. There is indeed a “Mary Hubbart or Hubburt, wife of George Smith,” mentioned as a witness in the indictment, but the present is no such person; her name is perfectly different, being Mary Hibbutt, as appears by an extract of the parish register where she was born, which I now produce. The objection, therefore, of a misnomer applies in full force to this witness.
The Lord Advocate—This appears to me a very extraordinary and frivolous objection, for, even supposing the witness’s name is Hibbutt instead of Hubbart or Hubburt, still there could not possibly be any mistake as to the person, since she is designed the wife of George Smith, and it is not pretended that she is not the wife of that person. This woman emitted several declarations before the Sheriff; in some of them she is called Mary Hubbart and in others Mary Hubburt. At first she pretended she could not write, and the only declaration subscribed by her is signed Mary Smith; so that the prosecutors, who had no other opportunity of knowing her real name than from the declaration, were left altogether in the dark as to it. As the witness allowed herself to be called Hubbart or Hubburt in the declaration without challenge it is not competent for her now to deny it.
My Lords, it is of no sort of consequence in the present case that there has been a mistake of a letter or two in the witness’s name; it was perfectly unnecessary to have designed her in any other way than Mary Smith, wife to George Smith, and if that would have been sufficient, certainly an attempt
to be more particular cannot have the effect of injuring the pannel, and therefore can be no valid objection against this witness.
The Dean of Faculty—My Lords, I cannot help considering this as a question of the greatest consequence, for if this objection is not sustained, then the objection of misnomer cannot have any longer effect, for if the change of a letter or two, as insisted on by the Lord Advocate, does not afford that objection, there can be no such thing as a misnomer, since the whole difference betwixt names consists only in change of letters.
I am free to admit that if this witness had only been libelled Mary Smith, wife of George Smith, particularly as she had subscribed her name Mary Smith, then there could not have been stated any objection to her examination. But as she is particularised to be Mary Hubbart, it is a sufficient objection to me that the name of the woman now present is not Mary Hubbart, but Mary Hibbutt, a perfectly different name. There still may be a mistake of the person although she is designed wife to George Smith, for it may happen that Smith may have two wives. There is not a greater difference betwixt Erskine and Friskin, which last name is not uncommon in this country, than betwixt Hubbart and Hibbutt. It is all one under what name she is mentioned in the precognition, as that was not her doing; neither is it probable that she knew by what name she was there called. My Lords, there has not been a witness examined here this day that can know by what name he has been taken down by the Clerk.
The Lord Advocate—My Lords, I beg that the witness may be desired to write her name.
The Lord Justice-Clerk—Mary Hubburt, you will sign your name.
[The witness signed her name accordingly.]
The Dean of Faculty—My Lord, the witness has subscribed her name “Hibbutt.”
Lord Hailes—The name of Hobart is the name of the very respectable family of Buckinghamshire, in England, and I would have supposed that this woman’s name, since it so nearly resembles it, was the same, and would not have taken her own word to the contrary. Hibbutt, nevertheless, is perfectly different from Hubbart, and, however obscure it might be, still, as it is proved by the parish register to be the name of the person now called, I consider myself obliged to give weight to the misnomer.
The Dean of Faculty—I beg pardon for interrupting the Court, but I am just informed that this point has been decided by Lord Eskgrove and Lord Stonefield at the Glasgow Circuit, where a misnomer of “James Roberton” instead of “James Robertson” was sustained. There, there was only the want of a letter, whereas there is certainly a much greater difference betwixt the names here in question.
Lord Eskgrove—As to the case mentioned by the Dean of Faculty, Robertson and Roberton are two perfectly distinct names. In the case before your Lordships there can be no doubt that if this woman had only been libelled as wife to George Smith, without her maiden name, there could have been no question whatever. It is the universal custom in England that the maiden name sinks into that of the husband’s, but my great difficulty is, in this case, that the public prosecutor, in giving this witness a further description than was necessary, has totally mistaken her name, I do not think that there is any force in her being called Hubbart in the precognition for the same reason given by the Dean.
[Here his Lordship was interrupted by the Lord Advocate.]
The Lord Advocate—My Lords, the circumstances which I meant to prove by the witness are so immaterial that I will give the Court no further trouble with the matter. I agree to pass from this witness.
Lord Eskgrove—I am very happy I am relieved from deciding it, as I was going to deliver an opinion for sustaining the objection.
The Lord Justice-Clerk—Mary Hibbutt, you are at liberty to go where you please.
Daniel Maclean
19. Daniel Maclean, waiter to William Drysdale, innkeeper in the New Town, called in and sworn.
Witness—On the night of Wednesday, the 5th of March, on which the Excise Office was broken into, I was in company with John Brown and Andrew Ainslie in the house of one Fraser in the New Town from about half-past nine to eleven o’clock at night; we drank some punch together, and there was one Price and some others in company with us. I remember to have received a five-pound bank-note from the prisoner, George Smith, on the next night after the Excise Office was broken into, in order to purchase a ticket in the mail-coach for his wife to Newcastle. The note was battered on the back. I carried it to John Clerk, Mr. Drysdale’s book-keeper, but he could not change it, and therefore I applied to Mr. Drysdale himself, and then carried back the change of the note, after deducting the price of the ticket, to Mr. Smith.
John Clerk
20. John Clerk, book-keeper to the before-mentioned William Drysdale, called in and sworn.
Witness—I remember that Daniel Maclean, Mr. Drysdale’s waiter, came to me the next night after the Excise Office was broken into for a ticket in the mail-coach to Newcastle for some person, and offered a five-pound bank-note in payment. I had not change myself, and therefore desired him to apply to Mr. Drysdale. He laid the bank-note upon the table, but I did not then look at it. Mr. Drysdale changed the note. On the Monday following I received it from Mr. Drysdale, with directions to carry it to the Sheriff-Clerk’s Office, which I did.
David Robertson
21. David Robertson, merchant in Edinburgh, called in and sworn.
Witness—I am a hardware merchant. I remember that Mr. Brodie, the prisoner at the bar, purchased a spring saw from me about eight or nine months ago. [Here one of the saws libelled on was shown to the witness.] This saw bears my shop mark, and it was such a one that I sold to Mr. Brodie. [The counsel for the pannels here repeated the objection against adducing the two spring saws, as mentioned in the general objection and interlocutor before taken down.] I have sold the same kind of saws to different persons. Cabinetmakers sometimes make use of such saws in the way of their business, but Mr. Brodie told me that the one he purchased was for cutting off the natural spurs of game-cocks. Some time afterwards another person, whom I do not know, came to my shop and purchased another spring saw; he asked for such a one as Mr. Brodie had bought. [Here the other saw was shown to the witness.] This saw also bears my shop mark, and it was such a one that I sold to the person I have already mentioned.
William Middleton
22. William Middleton, indweller in Edinburgh, called in and sworn.
Witness—I am in the employment of the Sheriff-Clerk’s Office. I have been acquainted with John Brown alias Humphry Moore for some time past, and I remember the robbing of the Excise Office. Brown came to me upon Friday, the 7th of March last, about eleven o’clock at night, and informed me that he wanted to make some discoveries concerning that robbery and the other late robberies which had been committed in this place. I desired him not to give me any information, but to keep his mind to himself, and I would take him to a person to whom he might communicate whatever he had to say. Accordingly I conducted him that same night to Mr. Scott, the Procurator-Fiscal, and afterwards, at his own desire, to the bottom of Salisbury Crags, where Brown pointed out a place in which we found a number of false keys under a large stone. These we brought to town with us to the Procurator-Fiscal’s house. The next day I was sent into England along with Brown in search of the goods belonging to Messrs. Inglis & Horner, silk mercers, which had been stolen from their shop; and Mr. Frier, a partner of that house, accompanied us.
The Dean of Faculty—My Lords, it is not proper that the witness should be allowed to speak of facts that have no relation to the present trial.
The Lord Justice-Clerk—William Middleton, you are to confine yourself to such facts as relate to or are immediately connected with the breaking into the Excise Office, which is the charge brought against the prisoners.
Witness—Upon Sunday, the 16th of March last, the prisoner, George Smith, was carried at his own desire to the bottom of Warriston’s Close,[5] and I accompanied him, along with Alexander Williamson and James Murray, sheriff-officers. Smith there pointed out a hole in a wall where a false key, a pair of curling irons, and a small iron crow were hid, which, he said, had been used in breaking open the Excise Office; whether they were covered with earth or not I cannot say, as the prisoner himself put in his hand and brought them out. [Here a false key, a pair of curling irons, and a small iron crow were shown the witness.] These are the same articles that were so found. [The counsel for the pannels here repeated the objection against adducing the iron crow, the curling irons or toupee tongs, and dark lanthorn, as mentioned in the general objection and interlocutor before taken down.] I was present at the search that was made in Smith’s house; there was nothing found in it. I was likewise present on the day following at a search that was made in Brodie’s house and yard, when one part of a dark lanthorn was found in a necessary house, and another part in a pen where fowls or game-cocks had been kept. [Here the dark lanthorn libelled on was shown to the witness.] These are the two parts of the dark lanthorn which were so found. The prisoner, George Smith, informed me that the small crow was used in breaking into the Excise Office.
Cross-examined by the Dean of Faculty—Did Brown inform you, previous to your going to England, that the prisoner, William Brodie, had any concern in the robbery of the Excise Office?
Witness—He told me that there was a gentleman whom I knew, and whom I little suspected, concerned in it, but he did not mention his name.
Alexander Williamson
23. Alexander Williamson, sheriff-officer in Edinburgh, called and sworn.
Witness—I was present, along with George Williamson and James Murray, when there was a search made in the house of William Brodie, the prisoner, upon the 10th of March last, and in the course of the said search I saw a pair of pistols wrapped in a black stocking taken from under the earth in the fireplace of a shed in his yard. [Here the pistols libelled on were shown to the witness wrapped in a green cloth.] These are the pistols, and they were found in that green cloth. [The counsel for the pannels here repeated the objection against adducing the pistols, as mentioned in the general objection and interlocutor before taken down.]
Cross-examined by the Dean of Faculty—How came you to say that they were found in a black stocking?
Witness—I saw a black stocking on the table, and that misled me.
The Dean of Faculty—You are to speak from what you know, sir, and not from what you see on the table.
Witness—I am certain that it was in a green cloth they were found.
James Murray
24. James Murray, sheriff-officer in Edinburgh, called in and sworn.
Witness—I was employed, along with Alexander Williamson and some others, to search the prisoner’s (William Brodie) house upon the 10th of March last. In the course of the search we found a pair of pistols in a green cloth covered with earth in the fireplace of a shed. I think that it was myself that dug them out of the earth. [Here the pistols libelled on were shown to the witness.] These are the pistols that were so found. I afterwards saw one part of the dark lanthorn found in a necessary house, and another part of a dark lanthorn found in a pen where game-cocks had been kept. I accompanied the other prisoner, George Smith, upon the 16th of March, to the bottom of Allan’s Close,[6] and he there pointed out a hole in a wall, where, he said, there were some articles hid. I put in my hand and brought out a false key, a pair of curling irons, and a small crow. [Here the articles formerly produced were shown to the witness.] These are the same that were so found.
Cross-examined by Mr. John Clerk—You say that you put in your hand and brought out these articles; are you sure it was not George Smith who did so?
Witness—I put in my hand; George Smith could not, being handcuffed.
George Williamson
25. George Williamson, messenger-at-arms in Edinburgh, called in and sworn.
Witness—I was employed with others to search the house of the prisoner, William Brodie, on the 10th of March last, and found several keys of an uncommon construction in a room off Brodie’s shop. We likewise found a pair of pistols wrapped in a green cloth under the earth in the fireplace of a shed in the woodyard. These were discovered by Smith, the prisoner, poking with an iron. [Pistols shown to witness.] These are the same that were so found. We also found several pick-locks in Mr. Brodie’s house, all of which were lodged by me in the Sheriff-Clerk’s Office. [Here the pick-locks were shown to witness.] These are the same pick-locks that were so found. [The counsel for the pannels here repeated the objection against adducing the pick-locks, as mentioned in the general objection and interlocutor before taken down.] I was sent in quest of Mr. Brodie, who was supposed to have gone to London, by Mr. Scott, the Procurator-Fiscal, upon the 11th of March last. I left Edinburgh about eleven o’clock at night. When I arrived at Dunbar I got some accounts of him; Mr. Brodie had left that place in a post-chaise. At Newcastle I was informed that he had taken the “Flying Mercury” post-coach to York; and I was afterwards informed that he had continued in it till he came to London. When I arrived in London I was informed by the coachman that Mr. Brodie did not go with the coach to the stage office, but that he had quitted it at the foot of Old Street, Moorfields. I waited upon Sir Sampson Wright, and at his desire I called upon Mr. Walker, solicitor-at-law in the Adelphi, and inquired for Mr. Brodie. He told me he was bad, and that I could not see him. I said I had a letter for him and wanted only to deliver it; but Mr. Walker replied that it might perhaps be dangerous to allow me to see him.[7]
The Dean of Faculty—My Lords, without meaning any reflection on the witness, whom I know and believe to be a very good man and an active officer, the greatest part of what the witness says is “hearsay.” He tells your Lordships that he was told one thing at Dunbar; that he received another piece of information at Newcastle; that a coachman told him so-and-so in London, and that Mr. Walker said this, that, and the other thing. My Lords, this is exceedingly improper. I have been taught to understand that in criminal trials the best evidence that can be got ought always to be brought; and surely it will not be pretended that that has been done in the present case. In a question of this kind, hearsay evidence is not admissible. The witness has said that he was informed so-and-so by coachmen; why were not these coachmen called as evidences? He has given you an account of a conversation that passed between him and Mr. Walker; why is not Mr. Walker brought here to speak for himself?
The Lord Advocate—My Lords, it was thought a material circumstance to be proved that the prisoner, William Brodie, fled from this country; that he secreted himself in London; and the witness, who was sent in pursuit of him, was considered as a proper person to be examined as to the fact. In the course of informing the Court what he himself did he has necessarily mentioned what passed between himself and some other persons. This cannot be said to have been hearsay evidence, being what the witness himself knows.
My Lords, the Dean of Faculty has asked why the different post-boys and coachmen who drove the prisoner to London, why Mr. Walker and others were not all cited as witnesses? The bringing forward of such a variety of witnesses is not only unnecessary but expensive. By the forms of criminal procedure in this country a trial must be finished at one sederunt; but, my Lords, if the mode contended for by the Dean of Faculty had been pursued in the present case this trial could not have been finished in a month.
The Lord Justice-Clerk—George Williamson, you will confine yourself to what you know or did yourself, and do not speak of what you were told by others.
Witness—I searched for the prisoner in London, but could not find him. I also went out to Deal and Dover, but could receive no intelligence of him. Accounts were afterwards brought to this place that he had been apprehended in Holland and brought to London. I went to London for him. He was delivered over to me at Tothilfields Bridewell, and I conducted him to this place and lodged him in the Tolbooth.[8]
Andrew Ainslie
The Solicitor-General—The next witness is Andrew Ainslie.
The Dean of Faculty—Before this witness is called I rise to state to the Court an objection against his admissibility. This witness is alleged to have been guilty of the same crime of which the pannels at the bar now stand accused, and therefore the objection of his being a socius criminis might apply to him. But although by our former law the objection of a witness being socius criminis might render him inadmissible, yet I have no occasion, nor is it my intention, to insist on the present objection in that view, for I freely own that the practice of this Court has for some time past, and with great propriety, I think, over-ruled that objection.
But, my Lords, I contend that this witness is inadmissible from the particular circumstances attending his case. For, according to the information which I have received, when this witness was apprehended and committed to prison, in the month of March last, to stand trial for this crime, he never charged Mr. Brodie as having been in any measure accessory thereto. On Ainslie’s first examination he positively affirmed that Mr. Brodie had no sort of accession to the crime of which he is now accused, or was concerned in any other bad action whatever to his knowledge, unless playing at cards and dice should be reckoned such; and in the different declarations which he made before the Sheriff he still persisted in denying that my client had any concern in this robbery. But after Mr. Brodie was apprehended and brought from Holland Ainslie was again brought before the Sheriff, when he was informed that either he himself must be hanged or he must accuse Mr. Brodie. Further, I am now instructed to say that when this witness was carried before the Sheriff his life was offered to him on his becoming King’s evidence against Mr. Brodie, and accusing him of having been concerned in this robbery, and that, even notwithstanding this offer, he persisted in denying that Mr. Brodie was guilty of this crime, until John Brown alias Humphry Moore, another of the witnesses cited, and alleged also to have been a socius criminis, was allowed to see and converse with him in prison, when at length he came into the measures proposed. I mean to say nothing against the conduct of the Sheriff, which may have been very proper—with the motives which may have influenced a public officer to a particular line of conduct I have nothing to do—but I state it as an insuperable bar to the admissibility of this witness, that hopes were suggested to him of saving his own life by criminating my client. And I offer to prove, by the evidence of the Sheriff of Edinburgh himself, that a bargain of this nature was made with Ainslie, and that it was not till then he was prevailed upon to say that Mr. Brodie had any concern in this crime. No man could withstand such a temptation, and it is impossible that the Court can receive the testimony of a witness in such circumstances.
The Lord Advocate—My Lords, I hardly expected that such an objection would have been made at this time, as it has long been the universal practice to admit socii criminis as evidence, and at the last trial in this Court such a witness was received without even an objection being stated. All the arguments on the other side could only affect the credibility of the witness, which properly belongs to the jury, and not the admissibility, which alone is before the Court. It is indeed true, and I am even surprised that the honourable counsel had not appealed to the authority, that Sir George Mackenzie has laid it down that socii criminis could not be admitted as evidence; but upon what principle of law or reason Sir George formed that opinion I could never discover. Sir George Mackenzie, indeed, is an author by whom I never was much instructed. He is often contradictory, always perplexed, and in many instances unintelligible. But even supposing the law had so stood in his time, the Court and the practice have long since deviated from it.
My Lords, the fact as stated by the Dean of Faculty is
Lord Eskgrove. (After Kay.)
Lord Eskgrove.
(After Kay.)
erroneous in every respect. For although Ainslie in his first declaration did not accuse Brodie or any other person, and denied all knowledge of the crime, yet in the second declaration which he emitted before the Sheriff on the 14th of March, which I now hold in my hand, and would read did the forms of the Court permit me to do so, he in the most express terms charges both Brodie and Smith as being equally concerned in the crime libelled. And, my Lords, it will not easily be believed—indeed, the thing is incredible—that so respectable an officer of the law as the Sheriff of Edinburgh would ever have entered into such stipulations with Ainslie. But even had such transaction taken place before any inferior judge or magistrate, still that cannot deprive the public prosecutor of the evidence of this witness, for it will not be said that any such transaction passed between him and the witness, and therefore the objection ought to be repelled, reserving the credibility of his evidence to the jury.
The Dean of Faculty—My Lords, I offer to prove my assertion.
The Lord Advocate—My Lords, I am willing, if the Dean of Faculty and the Court consent to it, to hold the second declaration, emitted long before Mr. Brodie was apprehended, as the evidence to be delivered by Ainslie on this occasion.
Lord Eskgrove—No transaction of any kind can possibly take place where life and death are concerned; and, therefore, even although the counsel on the other side consent to such a proposal, the Court would not allow it.
The Lord Justice-Clerk—Dean of Faculty, do you say that my Lord Advocate has made a corrupt bargain with the witness to accuse Mr. Brodie upon condition of receiving a pardon?
The Dean of Faculty—No, my Lord; but I repeat my offer to prove a bargain to that purpose with the Sheriff.
Lord Hailes—My Lords, the objection of socius criminis, if it ever was sustained in our law, has long since been obsolete. Nor can I understand how Sir George Mackenzie laid it down that socii criminis could not be admitted in evidence, since in his time we have instances of their having been actually received as witnesses. This assertion of Sir George Mackenzie’s is, like many others in the same work, founded neither on principle nor fact. But the Dean of Faculty’s objection amounts to a kind of reprobator against this witness. But even supposing that any credit could be given to the circumstances upon which this objection is principally founded, yet it could not affect the admissibility of this witness, as it is not pretended to be said that the alleged stipulation had taken place with the consent of the prosecutor for the Crown. I am therefore, upon the whole, for repelling the objection.
Lord Eskgrove—My Lords, there is no doubt that the objection of the witness being a socius criminis cannot be admitted in the present state of our law, whatever might have been done formerly. By the common practice, such witnesses are every day admitted; nor do I see how crimes of this nature could be discovered if a contrary practice were followed.
As to the special circumstances qualified by the Dean of Faculty, that a bargain was made by the Sheriff with Ainslie to procure him His Majesty’s pardon on condition of his accusing the pannel, I am likewise of opinion that these do not go to his admissibility. For your Lordships will observe that Ainslie cannot possibly be under any temptation now to accuse the pannel in consequence of that bargain. If I understand the law, my Lords, the calling any person as a witness on a trial is completely departing from any right to indict that person himself as being guilty of the crime concerning which he is called as a witness. Nor does it signify whether the pannel be convicted or not; it is clear that the witness can never be questioned for that crime; and Ainslie is quite safe from the consequences of his being accessory to the robbery of the Excise Office, if he was so. But, my Lords, it will be proper, before examining Mr. Ainslie, to inform him of his situation; and it will be proper, and the counsel for the pannels are entitled, to put such questions in initialibus of his evidence as will tend to satisfy your Lordships and the jury whether such a bargain had been entered into with him by the Sheriff or not, and how far he considers himself bound by it.
Lord Stonefield—My Lords, I am for repelling this objection.
Lord Swinton—My Lords, the objection made to the admitting of Andrew Ainslie is that he was an accomplice. I am clear to repel the objection in so far as it goes against the admissibility of the witness, but reserving it in full force, and leaving it to the conscience of the jury, in so far as it strikes against the credibility of the witness. In all my practice, ever since I knew this Court, although I have often heard the objection made, I never knew one instance in which it was sustained. If the jury were bound to believe every word a witness said, be his character what it may, there would be good reason for sustaining the objection, but where objections are reserved against the credibility of a witness, the jury are left at liberty to believe as much or as little of what he says as they see good cause for so doing.
The repelling of this objection, which is now the uniform practice, was founded upon good sense and reason, for as accomplices are best qualified to make discoveries, so, many crimes, were they excluded from being witnesses, would pass unpunished; and any hazard of their being guilty of perjury may be easily prevented by the Court’s informing them that the evidence they are to give cannot affect themselves.
The Lord Justice-Clerk—My Lords, were such an objection as this to be sustained, we would find very few instances, as one of your Lordships has very well observed, where a crime such as the present, of an occult and secret nature, could be brought to light. My Lords, as to the objection of the socius criminis, I will not say a single word upon it. I always thought, my Lords, that it contained in itself a complete answer, since the allegeance that the witness is a socius criminis implies that the pannel is guilty of the crime.
What is said by the Dean of Faculty about a supposed bargain betwixt the Sheriff of Edinburgh and Ainslie is by no means such an objection as affects his admissibility, although I will not say that his credibility may not be in some degree diminished by it; and the Dean of Faculty will be right in making his own use of it to the jury. Had the Dean of Faculty alleged that this bargain was corruptly made by my Lord Advocate, I could have understood him. But the Sheriff is only an inferior officer, and had no power to enter into any such transaction. Had he been ever so willing he could not have given Ainslie the smallest security that the terms and conditions of the bargain were to be fulfilled on the part of the Crown in consequence of Ainslie performing what was required of him. A higher authority was necessary, and none but the Lord Advocate himself could with any effect enter into an agreement with a witness to procure him His Majesty’s pardon for becoming King’s evidence. It is therefore not enough to say that offers were made him, whatever they were, by the Sheriff, and we must examine him, reserving all objections to his credibility.
The Court then pronounced the following interlocutor:—
The Lord Justice-Clerk and Lords Commissioners of Justiciary having considered the foregoing objections with the answers thereto, they repel the objections stated, and allow the witness to be examined, reserving the credibility of his evidence to the jury.
Robt. M‘Queen, I.P.D.
26. Andrew Ainslie, sometime shoemaker in Edinburgh, present prisoner in the Tolbooth of Canongate of Edinburgh, called in and sworn.
The Lord Justice-Clerk—Andrew Ainslie, you are called here as a witness to give evidence as to certain matters in which it is generally understood you yourself had a concern. You are informed by the Court that whether you had any such concern or not you are in no danger in telling the truth, for, being called here as a witness, you can never afterwards be tried for the crime with which the prisoners are charged. You are to pay no regard to the declarations you formerly emitted; these are now destroyed. And you will remember that by the great oath you have sworn you are bound to tell the truth, and if you say anything to the prejudice of the prisoners which is not true, or if you conceal any part of the truth with a view to favour them, you will be guilty of the crime of perjury, and liable to be tried and punished for it, and you will likewise commit a heinous sin in the sight of God, and thereby endanger the eternal salvation of your own soul.
Witness—I am acquainted with both William Brodie and George Smith, the prisoners at the bar, and also with John Brown alias Humphry Moore. I remember that the Excise Office was broke into upon Wednesday, the 5th of March last. I knew before that that it was to be broken into, but how long I cannot tell. Brown and the prisoners and I frequently talked of it before, and Brown and I went often to the Excise Office in the evenings in order to observe at what hour the people left it, and in consequence of repeated observations we discovered that the door was usually locked about eight o’clock, and that there were two men, an old and a younger man, who came night about to watch the office about ten o’clock. Afterwards Brown and I went out one afternoon to a house at Duddingston, where we drank a bottle of porter, and saw a woman whom I took to be the landlady. We then went to a field in the neighbourhood, from which we took the coulter of a plough and two iron wedges, which we carried to the Salisbury Crags and hid there. At this time there was a black dog in company with us. We had fixed on Wednesday, the 5th of March, for committing the said robbery, and we allowed the coulter to remain in Salisbury Crags until about six o’clock of the evening of that day, when Brown and I, it being then dusk, went out and brought the coulter of the plough to the house of the prisoner, George Smith, on purpose to use it in breaking into the Excise Office. We found Smith at home, and we expected Mr. Brodie to join us and to accompany us to the Excise Office. Brodie did not come until a good while after, when he joined us in the room above-stairs in Smith’s house. Mr. Brodie was at this time dressed in a light-coloured great-coat, with black clothes below (in which I had often seen him before), and a cocked hat. When he came in he had a pistol in his hand, and was singing a verse of what I understood to be a flash song. By a flash song I mean a highwayman’s song. We spoke together concerning the Excise Office; and it was settled upon that I should go before to the Excise Office and get within the rails and observe when the people went out. I went there accordingly a little before eight o’clock, carrying the coulter of the plough with me, and waited till I saw the porter come out with a light and lock the outer door. In a short while thereafter Smith came to me and asked if the people were all gone, and when I informed him that they were gone out Smith then went forward and opened the door with a key, which, I had heard him say, he had previously made for it, and went into the office. In about five minutes thereafter Brodie came down the close, and when I told him that Smith had gone in, but that Brown was not yet come, he went up the close again towards the street, and returned in a little with Brown, who said he had been dogging the old man who watched the office in order to see where he went, and that he had gone home. Brown then asked me whether or not I had “Great Samuel”—by which he meant the coulter. I told him I had, and gave it him through the rails, and he and Brodie then went down towards the door of the office and went in, as I supposed. I had no arms myself, excepting a stick, but Smith had three loaded pistols, Brown two, and Brodie one; at least, I saw Brodie, when he came into Smith’s house, have one in his hand. It had been previously settled amongst us, before leaving Smith’s house, that Brodie was to stand in the inside of the outer door, and that Brown and Smith were to go into the office. I was to remain without to watch, and in case of danger, to give an alarm to Brodie, which Brodie was to communicate to Brown and Smith. The signal of alarm agreed upon was to be given by me in this manner—A single whistle if one man appeared, so that they might be prepared to secure him; but if more than one man, or any appearance of danger, I was to give three whistles, in order that those within might make their escape by the door or by the back windows, as they thought best. I had an ivory whistle prepared for the purpose, which was given me by Mr. Brodie in Smith’s house in the afternoon. I took my station within the rail and leaned down, so that no person either going in or coming out could see me. Some short while after Brodie and Brown went into the office, a man came running down the close and went in also. I gave no alarm, for before I had time to think what I should do another man came immediately running out at the door and went up the court. In a very little afterwards, to my great surprise, a second man came out from the office. I got up and looked at him through the rails, and perceived that he was none of my three companions. I had not seen the other man who came out first so distinctly, owing to my lying down by the side of the parapet wall on which the rail is placed, in order that I might not be observed. I was afraid that we were discovered; and, as soon as the second man had gone up the close, I gave the alarm by three whistles as the agreed-on signal of retreat and ran up the close myself. I went down St. John’s Street and came round opposite to the back of the Excise Office, thinking to meet my companions coming out by the back way, having escaped from the windows. I remained there for some little time, and, not meeting with them, I then went directly to Smith’s house. Finding none of them there, and Mrs. Smith telling me that they were not yet come in, I went back to the Excise Office by the street, went down the close, saw the door open, and, finding everything quiet, I returned to Smith’s, where I saw him and Brown. They accused me of not having given the alarm as I promised, and said that when they came out they found that Brodie had gone from his place. I told them what I had observed, and that I had given the alarm. I remained in Smith’s only a few minutes, and I did not see Brodie again that night.[9] Brown and I then went over to the house of one Fraser in the New Town, and sent for Daniel Maclean, Mr. Drysdale’s waiter. We spent the evening with him there. There was one Price likewise in company with us, and we remained together till about two o’clock in the morning. It was near eight o’clock when I went first to the Excise Office, and it was about half-an-hour afterwards that I quitted my station. Brodie called next morning at our room—the room occupied by Brown and me. He came in laughing, and said that he had been with Smith, who had accused him of running away the previous evening. I told him that I also thought he had run off; but he said that he had stood true. Brodie had no great-coat on when he came to the Excise Office and spoke to me at the rails; he was dressed in black. When the whistle was given me by him in Smith’s house in the afternoon Brodie had on the white-coloured clothes which he usually wore. He afterwards changed them before we went to the Excise Office. Before I left Smith’s I saw Brodie have a pick-lock in his hands, and I think we all had it in our hands looking at it. Brodie was in his own hair. I did not observe him have a wig. We had prepared three crapes to disguise our faces; one of them was intended for Brown, another for Smith, and the remaining one for myself, but I did not see either Brown or Smith put a crape in their pockets that night. [Here the pistols libelled on were shown to the witness.] These pistols belonged to Mr. Brodie, and Smith had them with him at the Excise Office. They were given to him by me, and I had borrowed them from Mr. Brodie a month or two before for another purpose. That same evening Brown told me, as we went over to the New Town, that they had found sixteen pounds and some silver in the Excise Office; and on the Friday evening following, when I called at Smith’s house, in the room above stairs I found Smith and Brodie, and saw the money lying on a chair. I got a fourth share of it in small notes, and at the same time I got some gold from Mr. Brodie in payment of money he owed me. Brodie and Smith also each got a fourth share of it. There were two five-pound notes amongst the money that was on the chair, and I signified a desire to have one of them. I accordingly gave back some of the small notes I had received and some of the gold and got one of them in exchange. I afterwards gave the note to Smith, and saw him change it at Drysdale’s in the New Town the same evening, when he was purchasing a ticket for his wife in the mail-coach to Newcastle for the next day.[10] Brown and one Price were then present.
The Solicitor-General—Have you any particular mark by which you could know the said note again?
Witness—It was a Glasgow note, and battered on the back with paper.
[Here the Solicitor-General proposed to show the witness the bank-note libelled on.]
The Dean of Faculty—My Lords, here I must interrupt the witness. It is stated in the libel that a five-pound bank-note is to be produced in evidence against the pannels; but the witness says that the note given him to change was a Glasgow five-pound note, and the paper on your Lordship’s table is a promissory note for five pounds issued by John Robertson in name of Spiers, Murdoch & Company, a private banking company in Glasgow. This cannot in propriety of language be termed a bank-note. In Lombard Street, where such notes as that on the table are daily negotiated, they never think of calling them bank-notes. This term, my Lords, is exclusively appropriated to the notes issued by a bank constituted by a Royal Charter, such as the Bank of England, and the notes of a private banker are distinguished by the name of banker’s notes. Neither does such a note come under the description of money, as it is not a legal tender in payment. I hold in my hand this objection in writing, which, to save the time of the Court, I shall read, and I crave that it may be entered on the record.
The Solicitor-General—This objection appears to me to be so entirely frivolous as hardly to be worthy of an answer. The note in question is one issued by a very respectable banking company in Glasgow, and well known in this country by the name of the Glasgow Arms Bank. Such notes are commonly held to be bank-notes, and are so described in common language every day. Many instances might likewise be given of their being described in the same manner in criminal indictments, nor was it ever before objected that the description was insufficient. We need not go so far off as Lombard Street; there is no necessity for going further than the Parliament Close, where thousands of these notes are issued, known by no other name than that of bank-notes. The honourable counsel on the other side of the table, as well as myself, have received the greatest part of our fees in bank-notes of this kind, and both of us would have reason to complain, I believe, if what we received in that manner were not really bank-notes or considered as money.
The Dean of Faculty—My Lords, the common use of language, as well as the technical and legal description of the writing on the table, join in supporting this objection. That there is a distinction in common phrase between a bank-note and a banker’s note there can be no doubt. Every private company which is instituted with a view to the purposes of banking may indeed issue promissory notes, which meet with a voluntary credit from the country; but these are distinguished from the public banks instituted by the authority of Government, and where credit does not depend upon the goodwill of any individual, as every man must accept in payment their notes when tendered to him. These notes are alone properly termed bank-notes as the notes of a bank which is a public corporation, while the notes of a private company are termed banker’s notes, or those of an individual. Although the one may, in common discourse, be sometimes confounded with the other by those who are ignorant of the real distinction, there is no doubt that that distinction exists and is acknowledged by any one acquainted with the subject; and where they are best acquainted with it there the distinction is most explicitly acknowledged, as in Lombard Street, where no other term is known for the note of a private banker than a banker’s note. The inaccuracy of the description in the indictment is therefore evident, and can by no means be defended by the vulgar error which sometimes, I admit, is fallen into of confounding it with the note of a public bank.
My Lords, it will be allowed me that accuracy is at least as necessary for an indictment as to proceedings in the civil Courts; and your Lordships cannot have forgotten the late decision upon the application of the Bankrupt Act, when it was found that money belonging to creditors could not be lodged in the Bank of Dundee, in respect, the Act declares, that the bankrupt funds recovered should be lodged in a bank. And if the Bank of Dundee, my Lords, was held in that judgment not to be a bank under the meaning of the Act, with what propriety could your Lordships determine in a criminal case that their notes were bank-notes? No case can be figured more precisely in point; and if your Lordships approve of that decision, you will necessarily find that the note on the table is improperly described, and cannot be used in evidence.
I might safely admit, my Lords, that if this note had been described as a five-pound bank-note of a certain company, supposing it had been a bank-note of Sir William Forbes & Company, that this would have been a good description, for then it would have appeared by the indictment that the writing meant was a promissory note of that company. But from its being termed generally a bank-note, I could never suppose that it was not a note issued by one of the public banks, as that is the description that applies to no other species of document known in this country. For these reasons I hope your Lordships will not allow any questions concerning this paper to be put to the witness.
Lord Hailes—When I had the honour to serve the Crown as a depute-advocate, I learned from a most eminent judge, Lord Tinwald, Justice-Clerk, from whom I derived much instruction in the principles of law, that the note of a private banking company could not be termed in law a bank-note, nor could it be considered in any respect as money. On one occasion he obliged me to correct an indictment where I had fallen into the same error which I perceive here. The word bank-note, in legal acceptation, is applied exclusively to the notes issued by a bank instituted by Royal Charter, and I remember well the case alluded to by the Dean of Faculty, which was determined on the same principles. I am therefore clear for sustaining the objection.
Lord Eskgrove—My Lords, I am clearly of the opinion that has been given by my honourable brother. The promissory note of a private banking company is not held in the language of our law to be a bank-note, and therefore I am for sustaining the objection.
The Lord Justice-Clerk—I suppose there are none of your Lordships of a different opinion? The Lords therefore sustain the objection.
The Court then pronounced the following interlocutor:—
The Lord Justice-Clerk and Lords Commissioners of Justiciary having considered the objection, with the answers thereto, they sustain the objection to this piece of evidence libelled on, and refuse to allow the same to be produced.
Robt. M‘Queen, I.P.D.
[Here the witness was shown a false key, a pair of curling irons, a small iron crow, and the coulter of a plough.]
Witness—I know these articles; they were all used in the breaking into the Excise Office. The coulter we called “Great Samuel,” and the iron crow, “Little Samuel.” When I gave the coulter to Brown through the rails at the Excise Office he asked me if I had “Little Samuel,” and I said that I believed that Smith had it in his pocket.
Lord Hailes—Andrew Ainslie, you gave an account of this matter formerly before the Sheriff; but you have been very properly told by the Court that what you said there is now of no avail, and that your declarations are destroyed. You have this night, in presence of the Court and the jury, given evidence against the prisoners at the bar. Before you leave the Court, I desire you to consult your own breast whether or not you have said anything to the prejudice of these men that is not true. You have it still in your power to correct any mistakes you have made, but this opportunity will never recur to you. If, therefore, you are conscious of having said anything against the prisoners contrary to truth, and if you leave this house without informing the Court and the jury of you having done so, you will commit a most heinous offence against the Almighty God, and you will be guilty of perjury and of murder.
Cross-examined by the Dean of Faculty—At what hour went you first to the Excise Office on the night in which you say it was broke into?
Witness—I left Smith’s house about a quarter before eight o’clock; I went away before the rest.
The Dean of Faculty—What o’clock was it when you returned the last time to Smith’s that evening?
Witness—I cannot say, but I think it would be about an hour from the time I went first to the Excise Office.
The Dean of Faculty—How long were you at the Excise Office before Brodie came to you?
Witness—About a quarter of an hour; he came to the Excise Office just about eight o’clock.
The Dean of Faculty—You have said that you had resolved to break into the Excise Office a considerable while before you carried that design into execution, and you have told us that it was broke into upon a Wednesday night? Now, you will inform the Court and the gentlemen of the jury what your reason was for fixing upon that night more than any other?
Witness—Brown and I having seen, in consequence of frequent observations, that an old man watched night about with the other porter, and knowing that it was his turn to watch on Wednesday night, we therefore fixed upon that night for carrying our design into execution. We knew that there was usually nobody in the office from eight to ten o’clock for the purpose of watching it. I do not remember who it was that first proposed robbing the Excise Office.
John Brown
27. John Brown alias Humphry Moore, sometime residing in Edinburgh, present prisoner in the Tolbooth of Canongate of Edinburgh, called.
Mr. Wight, for the pannel, William Brodie—My Lords, before this witness, who is also a socius criminis, is called in, I have to object to his being received as a witness upon grounds which, I imagine, are insuperable. This man, my Lords, was convicted at the General Quarter Sessions for the county of Middlesex, by the verdict of a jury, of stealing twenty-one guineas and fourteen doubloons, in consequence of which he was adjudged to be transported beyond the seas for the term of seven years, in April, 1784, and this is instantly instructed by a copy of the said conviction, under the hand of the proper officer, now produced; and further, the witness, under the name of John Brown, was banished by the Justices of Peace for Stirlingshire from that county in September, 1787, upon his confessing a theft committed at Falkirk, as appears from a certified copy of the said sentence under the hand of the Clerk of the Peace of the said shire. I shall not take up your Lordships’ time in proving that a man thus infamous is altogether inadmissible as a witness in any cause, especially where life is concerned, and I have no doubt that your Lordships will sustain the objection.
The Solicitor-General—My Lords, in answer to this objection, I here produce His Majesty’s most gracious pardon in behalf of this witness, under the Great Seal of England, dated 28th July last, which, by the law of England, renders the witness habile and testable.
Mr. Wight—The production of this pardon, my Lords, will by no means answer the objection which I have stated. The infamy attending the commission of the crimes of which Brown has been convicted is not, cannot be, done away by the King’s pardon. He still remains a man unworthy of credit, in whom the gentlemen of the jury can place no confidence. His situation, in short, is just the same as it was before the granting of the pardon, unless that the pardon saves him from the punishment awarded against his crimes. This doctrine is delivered by Sir George Mackenzie in very strong terms, and it is the doctrine of common sense.
[During this time some desultory conversation took place about what was the felony for which Brown was sentenced, the Lord Advocate saying it was only swindling.[11]]
The Lord Advocate—My Lords, as to the sentence against Brown, supposed to have been pronounced by the Justices of Peace for Stirlingshire, it does not appear with certainty, nor do I know whether Brown, the witness, be the same person who was the subject of that sentence or not, as the certified copy of the sentence of banishment produced is against one John Brown from Ireland. I admit, my Lords, that if he had been tried by a proper Court and convicted in consequence of the verdict of a jury that the objection would have been a very good one; but the sentence of the Justices of Peace here produced cannot afford an objection which your Lordships can sustain in bar of his evidence. Granting him to be the same person, there is here no trial or verdict of a jury. It appears that a petition was presented for him to avoid the trouble of a trial, and the Clerk of Court has most improperly taken down an acknowledgment of his guilt. There was no occasion for his accusing himself, it was sufficient for him to state that he wished to avoid the consequences of a trial; and therefore, my Lords, this sentence can in no view of the matter be held to infer his actual guilt of the crime laid to his charge before the Justices. My Lords, I admit in the fullest manner the effect of the first sentence against Brown for the felony, but I maintain that it is completely taken off by the subsequent pardon.
I do not reckon myself obliged to answer to the general objection of socius criminis: that is fully answered by the practice and the uniform course of your Lordships’ decisions. A specialty was argued in the case of Ainslie; but this witness is in a situation very different. He never was charged with this crime, nor was he ever liable to the temptation which it was alleged, for the pannels, might have influenced the former witness.
My Lords, many daring robberies have been committed in this city, and, in spite of the utmost vigilance of the police, no discovery could be made of the perpetrators. At length, upon the Friday after the robbery of the Excise Office, Brown went to Mr. Middleton, a person employed by the Sheriff, and told him such circumstances as led to a discovery. From this, my Lords, I am bound to suppose that he had repented of what he had done, and I conceived it to be my duty not to prosecute him, but, on the contrary, to make use of his evidence as a means of discovery of the rest of his accomplices. After this, my Lords, it was found that he had been convicted at the Old Bailey. I then applied for advice to those whom I thought were best enabled to assist me concerning the law of England on this subject, and I learned, my Lords, that the proper method to be followed was to apply for a pardon. There is no occasion for making a mystery of the matter, it was the Recorder of London I did apply to. He is a gentleman necessarily more versant in these matters than any other man in the kingdom. By his advice, I applied for a pardon and accordingly obtained it.
But, my Lords, there was no occasion for a pardon in this case; the witness, in my opinion, would have been just as admissible without it. The sentence by which he was condemned is to us entirely a foreign sentence, and, therefore, upon the universally received principle of law, that statuta non obligant extra territorium statuentis, it can be of no force with us, unless from that politeness, termed comitas by the law, which civilised nations pay to the decrees of each other, and, accordingly, unless your Lordships shall, ex comitate, be disposed to give effect to the decree of a foreign Court, this objection is such as cannot even be listened to in the first instance, the crime said to be committed by Brown having been committed in England, and the sentence pronounced against him being the sentence of an English Court.
My Lords, your Lordships in another capacity, in the civil Court, do not as a matter of course give effect to foreign decrees. In every instance you must be satisfied that the decree is consistent with equity and justice before you interpone your authority. And this holds more particularly in such decrees as infer a penalty, in which case, indeed, some lawyers think, and my Lord Kames declares himself to be clearly of that opinion, that no weight whatever is attached to a foreign decree.
But, my Lords, even laying this out of the question, His Majesty’s most gracious pardon, which I hold in my hand, puts an end to all objection at once. There is not, indeed, a clearer point than that a pardon from the King takes away the effects of any former sentence, and makes the person pardoned precisely the same person he was before the sentence was pronounced against him.
This question must be judged of according to the law of England, and English authorities are express to this purpose. Thus Blackstone, B. iv. ch. 31, in fine says, “The effect of such pardon by the King is to make the offender a new man, to acquit him of all corporeal penalties and forfeitures annexed to that offence for which he obtains his pardon, and not so much to restore his former as to give him a new credit and capacity.” And another authority, my Lords, equally respectable—I mean Bacon’s Abridgment, p. 809—lays down exactly the same doctrine. This witness, therefore, is and must be admissible, notwithstanding the sentence pronounced against him. He has a new credit and capacity given him by this pardon, which enables him to be adduced as a witness, whatever may have been his character previous to obtaining it.
The authority of Sir George Mackenzie has, indeed, been stated as in opposition to this argument. But things have varied so much since his days, and his opinions are frequently so loose and confused, that no weight can be given to his opinion in opposition to such direct and recent authorities as I have quoted. It is perhaps no great authority, my Lords; but I hold a newspaper in my hand, from which it would appear that a case in England exactly in point was determined in July last in consistency with the authorities I have mentioned; and another case in the year 1782 was determined in the same manner.
As to the sentence of the Justices of Peace, I confess I was surprised, my Lords, that the counsel on the other side of the bar should have urged it, when in so late a case as that of Brown and Wilson, in the year 1774, your Lordships found that a sentence of the Justices of Peace was no bar against the admissibility of a witness, nor any sentence which proceeded without a jury. I therefore sit down, my Lords, in the full conviction that your Lordships will over-rule the objection against this witness.
The Dean of Faculty—My Lords, this case, so far as I know, has never yet been decided by your Lordships. The witness is in a new situation, and in one so extraordinary that it well deserves your Lordships’ serious consideration, whether he ought, in law or in common justice to the pannels, to be allowed to give evidence. My Lord Advocate is mistaken in saying that Brown was not under the same apprehension with Ainslie when he accused the pannels; for I cannot conceive that any man could have better ground than he to be afraid of the justice of his country; and certainly no man ever spoke under more strong and immediate fears of a halter.
When he made his confession he was under sentence of death, at least he knew well that he was liable to a capital conviction for not having transported himself conformable to the sentence at the Old Bailey. He knew that a pardon was necessary to preserve his life, and that it was impossible for him to remain in safety without it in this country. The game he played, therefore, was very evident—he did not accuse Mr. Brodie at first, and gave no information whatever but against the pannel Smith. My Lords, was it unnatural for a man of his complexion in such circumstances to have recourse to fiction? Accordingly, whenever Mr. Brodie was taken, a strong accusation against him was for the first time made by Brown, and this pardon was the immediate consequence. Let your Lordships reflect upon the whole of his conduct; let the jury take it into their most serious consideration; and I will aver that no evidence was ever offered under more suspicious circumstances.
The effect of the pardon, my Lords, is another point, and it is one which involves the most important consequences.
It is admitted on the other side of the bar, and, indeed, without their admission it is in evidence, that this man John Brown or Humphry Moore was sentenced to transportation by the Courts in England for a felony. It is not denied that a sentence of this nature precludes of itself the admissibility of that person as a witness against whom it is awarded, but it is said that this sentence is a foreign decree, to which we are not bound to pay any respect.
My Lords, are not the Courts of this country in the practice every day of paying respect to foreign decrees? It is true that the decrees of foreign Courts receive effect in this country only ex comitate. But it is nothing to me upon what principle the Courts here give effect to such decrees, if effect be really given. And that such respect is paid to foreign decrees, unless where they are contrary to our own law, is a position which no man will contest. To what purpose, then, is it stated, that this is the sentence of a foreign Court, unless it be stated at the same time that it is a sentence which your Lordships would not have pronounced in the same circumstances? The crime of which Brown was convicted is equally punishable in both parts of this island, and the effects of the sentence following upon the crime must, therefore, upon the universal principles by which all nations are now guided, be the same in both parts of the island also. The objection, then, that the decree is foreign, cannot be listened to by your Lordships without overturning those settled maxims by which your decisions, both in this Court and in another Court where all your Lordships sit, are constantly directed.
But His Majesty’s pardon, it is said—this pardon now produced to your Lordships, and obtained for the sole purpose of endeavouring to enable this man to be a witness—has now placed him in the same situation as if he had never been condemned.
My Lords, I have heard it said that the King could make a peer, but that he could not make a gentleman; I am sure that he cannot make a rogue an honest man. This pardon, therefore, at the utmost can only avert the punishment which follows from the sentence. It cannot remove the guilt of this man, though it may save his life. Can it, indeed, my Lords, be supposed that this amiable prerogative, lodged in the hands of the King for the wisest of purposes, and to be exerted by him as the father of his people, should have the effect to let loose persons upon society, as honest, respectable men, as men who may be witnesses, who may be jurymen, and may decide upon your lives or my life to-morrow, although these very persons were yesterday in the eye of the law and the eye of reason held as hardened villains from whom no man was safe, considered as wretches guilty of, and fitted to, perpetrate the most abominable crimes; and that although every man knows them to be the same as they were, and is equally afraid of, and would as little trust them as before they obtained a remission of their crimes?
My Lord Advocate has talked of their obtaining a new credit by the pardon. What is this, my Lords? Can it be a new credit to cheat and rob and plunder? Is this pardon to operate like a settlement in a banker’s books, when he opens a new credit upon the next page, after old scores are cleared off? My Lords, it is impossible. To suppose a pardon to have such effects is to suppose it the most unjustifiable of all things.
My Lords, I am willing to allow that this pardon should have every consequence beneficial to Mr. Brown; that he should derive all the benefit from it which the pardon itself expressly declares to be competent to him, and that no part of the punishment to which he was liable before this extension of His Majesty’s clemency can now be inflicted upon him. But this is very different from the proposition, that he is a good evidence in this or any other cause; it is no part of his punishment that he is not allowed to swear away the life of his neighbour; on the contrary, it is rather a favour to him. That he is intestable was never a punishment even before the pardon was granted; it is only a consequence of the sentence for a crime of an infamous nature which fixes an indelible character upon him, and describes him as a man whose testimony is worthy of no regard; and that character is no more removed by the pardon than the original truth and authenticity of the evidence upon which he was convicted is falsified by it; on the contrary, the pardon contains in itself the most unexceptionable evidence of the guilt and infamy of the person who is obliged to plead it.
Authorities have been quoted on the other side of the bar, but they are not the authorities of our law. The authority of Sir George Mackenzie is expressly in their teeth. This is the second time to-day, my Lords, that I have heard this respectable writer talked lightly of. I cannot but express my surprise at it. He was undoubtedly a man of the highest abilities, and he is our only criminal lawyer. I think he is the most intelligible and clear of all our writers, and I have read him with great profit. But his authority is to be held light in this matter, because his opinion is decisive in favour of this objection—an opinion which, though it were not delivered by such high authority in our law, is yet so much in unison with the common reason and common feelings of mankind that I should deem it to require no other support.
The sentence of the Justices of Peace of Stirlingshire, it has been said, forms no objection to the admissibility of this witness, because it was pronounced without a jury, as all their sentences are. My Lords, this is not the reason. Sorry I am to say that, by a decision of your Lordships, magistrates of burghs and Sheriffs of counties have been found entitled to whip and imprison British subjects without a jury. But will it be maintained that persons so punished will not be accounted infamous and their testimony rejected?
My Lords, the reason why the sentence of the Justices of Peace was held not to bar the admissibility of a witness was because they are not a Court of record, and your Lordships could not be legally certified of what was their judgment. Could this information have been legally obtained the infamia facti would have been sustained as sufficient without the infamia juris.
A man is equally infamous in either case if his punishment is merited. And why is infamia facti not always admitted in our law as a sufficient bar, but merely because all objections to witnesses must be instantly verified, which would produce an infinite number of trials within trials, and, besides, which is far worse, would be trying a man without a libel, without allowing him time to produce witnesses, and without a jury. But the infamia facti, if proved—and in this case the proof is beyond dispute—is equally strong to render a witness inadmissible as any infamia juris. For it is not merely the sentence of a Court which makes a man intestable, but the fact that he is a villain. And this is an additional proof that His Majesty’s pardon, which undoubtedly does not justify the act, though it saves the actor, cannot take away the infamy attendant upon the crime of which he stands convicted.
But the matter does not end here. My Lords, supposing that His Majesty really had this incomprehensible prerogative of changing, by a sheet of parchment, a corrupt and dishonest heart, and cleansing it from all its impurities, I still maintain that it has not been exercised. Where is the clause in this pardon restoring Brown to his character and integrity? You have heard the pardon read, and there is no clause in it to that effect. He is screened against punishment and every effect of a prosecution; but it would have required a very express clause indeed to give the pardon the additional force of removing the infamy of his sentence, and surely the warmest advocates for prerogative cannot be offended at its being said that the King must exercise that prerogative before its power can be felt.
My Lords, I shall trouble you with nothing farther upon this subject, which appears to me very clear. The sentence of the English Court is no more foreign than those to which the Courts of Scotland give effect every day. It is such a sentence as your Lordships would have pronounced had the crime been committed in this country. His Majesty’s pardon cannot, by our law, restore this man from the infamy annexed to this sentence, and common reason tells us that it is beyond the power of kings, because it is beyond the power of man, to reinstate a man in his original integrity by their fiat.
Lord Hailes—My Lords, the Dean of Faculty has done more for Sir George Mackenzie than I was ever able to do, though I studied him before the Dean of Faculty was born. Sir George Mackenzie’s work on the criminal law is a medley of opinions formed from the civilians, with what occurred in his own practice, and desultory observations upon them. He is exceedingly inaccurate. He mentions, for instance, an Act of Sederunt which has no existence, and in many other instances talks equally loosely.
With regard to the present objection, my Lords, it is clear that the decree is foreign. By the articles of the Union, our own laws and forms of procedure are secured to us, and we have as little connection with those of England as with the laws of Japan, being as little bound to obey them. At the same time there is always a comitas to foreign decrees, where not inconsistent with our own law. Here, however, there is no necessity to enter into this question, as the sentence in this case is superseded by the pardon. The sentence of the Justices of Peace weighs nothing with me. No such sentence ought ever to render a witness inadmissible, for Justices of Peace are always ready enough to banish a man who is accused from their own territory. I am therefore for repelling the objection.
Lord Eskgrove—My Lords, I think this a matter of very great importance. I am clearly of opinion that it is beyond the prerogative of the Crown to render a person capable of being a witness by granting him a pardon. I know no such prerogative.
But, my Lords, the decree here is a foreign decree, and in judging of it we must consider the law of the country where it was pronounced, and from the authorities, my Lords, which have been quoted, it appears that a pardon in England does take off the whole consequence of the sentence. And in my opinion it would be highly unjust that the English sentence should be allowed to militate against a person exactly as it would do in England and not at the same time to give the pardon the same effect which it would have in that country. The comitas due to the sentence of an English Court is also due to the pardon, or to the sentence which an English Court would pronounce in consequence of that pardon. I cannot figure a more grievous punishment than that of being held out as a person incapable of giving testimony in any cause; and if by the law of England all the consequences of a sentence are done away by His Majesty’s pardon, then this goes among the rest.
Had the crime been committed, or the sentence pronounced, in Scotland I would have had another opinion. I do not sit here, my Lords, to pass judgment upon authors long since dead. But the same opinion is delivered by Dirleton, which is given by Sir George Mackenzie; and his authority will not, I suppose, be questioned by any lawyer. And I hold it to be the law of Scotland, that a pardon does not restore the person pardoned, so as to free him from the infamy attending his crime. But as the law of England—the law of that country where the crime was committed, and the sentence pronounced—says otherwise, I am bound to repel the objection.
Lord Stonefield—My Lords, I am for repelling the objection. It was repelled in the case of Lord Castlehaven in the State trials.
Lord Stonefield. (After Kay.)
Lord Stonefield.
(After Kay.)
Lord Swinton—My Lords, this is a question of so much delicacy and importance that I could have wished more time to have weighed what I have heard from the counsel than the forms of Court will admit of.
The question is—Whether His Majesty’s pardon did so far restore John Brown to the character and reputation he held before his conviction as to make his evidence admissible in the present trial?
In substance, my opinion concurs with that of my brethren, for repelling, in the circumstances of the present case, the objection to the admissibility of the witness, leaving his credit to the consciences and good sense of the jury.
Had John Brown’s conviction proceeded upon a jury trial in Scotland, I would have been of a different opinion. There are, in the first place, several texts in the civil law upon this topic, all clearly purporting that a remission, so far from restoring, even blemished, the reputation of him whom it relieved from punishment. Next, our municipal law is perfectly explicit to the same effect. The statutes of Robert I., among others therein debarred from giving evidence, mentions convicts redeemed from justice. This act is expressly quoted and laid down as law by Sir George Mackenzie, who is, at least, our most ancient author upon the criminal law, and there is no practice or decision to the contrary.
These observations, however, I do not apply to the present case, for here the conviction and sentence are from England. The infamy, therefore, disabling Brown to be a witness arising in the law of that country, and coming here, must bring its character and construction and effects along with it.
I observe that one of these effects was the restoring a criminal pardoned to the state and character that he held previous to the conviction. The authorities referred to by the Lord Advocate prove this, and, in addition to these, I shall only mention to your Lordships Mr. Justice Buller’s Treatise on Trials, a book of great authority, which lays down that if a person found guilty, on an indictment for perjury at common law, be pardoned by the King, he will be a good witness, because the King has power to take off every part of the punishment.
As to the sentence of the Justices of Peace of the county of Stirlingshire, banishing Brown by his own consent from that county, no stress can be laid on it, as it is now a settled point that no sentence of an inferior Court, proceeding without the verdict of a jury, is sufficient to set aside any person from being a witness.
The Lord Justice-Clerk—My Lords, I will not say a word about the sentence of the Justices of Peace, nor of what would have been the case had the crime been committed, or sentence pronounced, in Scotland. I would hold the decree in England pro veritate, and give it effect accordingly. But, my Lords, if the pardon frees this man from the penal consequences of his sentence, although I were to hold that it does not rehabilitate him in Scotland, still it leaves only the infamia facti, for the infamia juris is, eo ipso, done away. And, my Lords, nothing can set aside a witness unless infamia juris.
The Dean of Faculty argued this objection with great ingenuity, but he founded his whole argument on the proposition that an infamia facti, if it was capable of proof, was a sufficient objection to the admissibility of a witness; and, indeed, unless this proposition were true, his whole argument falls to the ground. But, my Lords, this proposition is evidently fallacious, and I need use no other instance than that of Ainslie, who, like every other King’s evidence, admitted in the very bosom of his deposition an infamia facti, in so far as he was concerned in the commission of the crime charged against the pannels, and yet it was not even pretended that this was an objection to his admissibility; and your Lordships every day allow the examination of witnesses in the same situation. I am therefore clear for repelling the objection.
The Court then pronounced the following interlocutor:—
The Lord Justice-Clerk and Lords Commissioners of Justiciary having considered the foregoing objections with the answers thereto, they repel the objections stated and allow the witness to be examined, reserving the credibility of his evidence to the jury.
Robt. M‘Queen, I.P.D.
[The witness was then called in and sworn.]
The Lord Justice-Clerk—John Brown, you are called here to give evidence regarding a matter in which it is generally supposed that you yourself had some concern. You are now informed by the Court that although you may have had such a concern you are in no danger to speak the truth, because, being adduced as a witness against the prisoners at the bar, you cannot be tried for the crime of which they are accused; and you will take notice that whatever you may have said against these men, in the different declarations which you emitted before the Sheriff, which are now destroyed, you are now bound by the great oath which you have sworn to tell the truth; and that if you say anything to the prejudice of these men that is not true or if you conceal any part of the truth, with a view to favour them, you will thereby be guilty of the crime of perjury, for which you will be liable to be tried by this Court, and severely punished, and you will commit a heinous offence in the sight of the Almighty God, and thereby endanger your immortal soul.
Witness—I am acquainted intimately with both the pannels, and have been frequently in company with them, and with Andrew Ainslie, then a shoemaker in Edinburgh. I have met Brodie often at Smith’s house and other places. I know that the General Excise Office in Chessels’s Buildings was broken into upon Wednesday, the 5th of March last; I was myself one of them that broke into it, and Andrew Ainslie and the two prisoners were along with me. George Smith and I were within the office, Brodie was at the door, and Andrew Ainslie was without, keeping watch. We had resolved three months before to break into it; and on the 30th of November last, the night on which the Free Masons made a public procession last winter, Smith, Ainslie, and I went to the Excise Office and unlocked the outer door with a false key. We went in together, and opened the inner door to the hall with a pair of toupee irons, but none of the keys we had would open the cashier’s door. Smith said a coulter would be a good thing to open it with. Thinking it too late to remain longer, we came out again; but we could not lock the outer door with the key, and therefore left it unlocked. Last spring Ainslie and I went to Duddingston, and drank a bottle of porter in a house there; afterwards we went into a field in the neighbourhood, in which there were two ploughs, and carried off the coulter of one of them, which we hid in Salisbury Crags. On the evening of the 5th of March last, which was two or three days afterwards, when it was about dusk, Ainslie and I went out to Salisbury Crags for the coulter, and brought it in with us to Smith’s house. Smith was at home, but Brodie was not yet come, although we expected him. The hour at which we had agreed to meet was seven, but Mr. Brodie did not come until near eight. The purpose of our meeting was to go and rob the Excise Office that night. We were in Smith’s room above-stairs when Brodie joined us, and we there drank some gin and “black cork,” and ate some herrings and chicken. By “black cork” I mean Bell’s beer. Mr. Brodie was then dressed in black; in the preceding part of the day I saw him in white or light-coloured clothes. I do not remember that he had a great-coat on when he came to us at Smith’s in the evening. When he entered the room he took a pistol from his pocket, and repeated the verse of a song of Macheath’s from a play, words like—“We’ll turn our lead into gold,” or such like.[12] After we were all met together, it was agreed upon that Ainslie should remain on the outside of the Excise Office, within the rails, with a whistle, to give the alarm in case of danger; that Brodie was to be stationed within the outer door for the same purpose; and that Smith and I should go into the cashier’s room. Accordingly, Ainslie left Smith’s first, and in some time after I followed. Brodie was not disguised, but Smith and I had crapes in our pocket, and Smith had likewise a wig, which, I believe, had once belonged to Brodie’s father. When I came to the mouth of the entry to Chessels’s Buildings, I met the old man who usually locked the door coming out, and went after him and saw him go home. My reason for so doing was to see that he had not gone on an errand and to return. When I came back to the court I met Brodie in the entry, who told me that Smith had gone into the office, and desired me to go in. I went down the close with him, saw Ainslie at his post, and received the coulter, or “Great Samuel,” from him, and carried it in with me to the office. I found the outer door open and Smith in the hall. The outer door of the cashier’s room was opened by Smith with a pair of curling irons, and I assisted him to force open the inner door of the cashier’s room with the coulter and a small iron crow. After we got in, Smith, who had a dark lanthorn with him, opened every press and desk in the room where he suspected there was any money; some by violence and others with keys which we found in the room. We continued there about half-an-hour, and found about sixteen pounds of money in a desk in the cashier’s room, which we carried away with us. It consisted of two five-pound notes, six guinea notes, and some silver. We heard some person come upstairs, and cocked our pistols, which were loaded with powder and ball. Smith said he supposed it was some of the clerks going into one of the rooms. We heard no whistle while we were in the office. When we came downstairs, Brodie and Ainslie were both gone. We left the outer door of the Excise Office unlocked, and carried the key away with us. We then came up to the Canongate, and went across it, and down another street a little below—Young’s Street. I stopped in the middle of the last street, pulled off my great-coat and gave it to Smith. I then returned, went down to the Excise Office door, where everything seemed to be quiet; afterwards I went to Smith’s house, where in a little I was joined by Smith, and soon afterwards by Ainslie. I did not remain there long, when Smith recommended it to me and Ainslie to go over to Fraser’s house in the New Town, that we might avoid suspicion; and we went accordingly. I knew at the time that Smith was making a key for the outer door of the Excise Office. [Here the witness was shown a key.] That is the key he so made, and with which he opened the door. We had three pair of pistols along with us, all of which were previously loaded by Smith with powder and ball. [Here the pistols libelled on were shown the witness.] These are a pair of them, but whether that pair was carried to the Excise Office by Smith or me I cannot say. I saw Mr. Brodie have a pistol in his hand in Smith’s house. When Brodie came to Smith’s first that night he brought with him some small keys, and a double pick-lock, which we all looked at. [Here the pick-lock libelled on was shown to the witness.] This is the same that was used on that occasion. On Friday, the 7th of March, I was sent for to Smith’s house. Brodie, Smith, and Ainslie were there, and the money which we got in the Excise Office was then equally divided between us. I got about four pounds from Brodie to my share. I saw all the money in Smith’s room above-stairs before it was divided, and there were two five-pound bank-notes amongst it. On the same Friday evening, I went with Smith and Ainslie to Drysdale’s, in the New Town, and saw Smith change one of the five-pound notes there, when purchasing a ticket for his wife in the mail-coach to Newcastle. I went to William Middleton on Friday night, the 7th of March last, and told him that I wished to make a discovery as to the late robberies; he carried me the same night to Mr. Scott, the Procurator-Fiscal, but I did not at that time mention anything of Brodie’s concern in them. The next day I was sent to England to trace some goods taken from Inglis & Horner’s shop. I returned on the 15th of March, and was the same day examined by the Sheriff. I was informed that Smith had emitted a declaration, informing of Brodie’s guilt, in consequence of which he (Brodie) had absconded, and then for the first time I mentioned that Mr. Brodie had been concerned with us.[13] Ainslie informed Smith and me that he had seen two men come up the close before he quitted his post at the Excise Office and went away. Smith carried the money which was found in the Excise Office away with him, and he afterwards gave it to Brodie, who made a fair division of it on the Friday. On the Thursday I did not see him.
Lord Hailes—John Brown, you have already been told by the Court that you ought to pay no regard to what was contained in your declarations before the Sheriff, and that, whatever you may have formerly said, you cannot now hurt yourself by speaking the truth. I intreat you to reflect on the evidence you have given this night, and if you are conscious of having said anything which you ought not to have said, that you may say so to the Court and to the jury. It is not as yet too late, but if you neglect the opportunity which you now have it will never recur to you again; and I earnestly desire you to beware of this, that if you have said anything this night to the prejudice of these men at the bar that is not true, and if you do not undeceive the Court and the jury before you leave this house, you will commit a most heinous sin against the God of heaven, in whose presence you now stand, and you will be guilty of perjury and of murder.
Cross-examined by the Dean of Faculty, for William Brodie—When you went first to Mr. Scott, the Procurator-Fiscal, did you say anything concerning the breaking of the Excise Office?
Witness—I did.
The Dean of Faculty—Who did you say was concerned with you?
Witness—George Smith. I did not mention either Brodie or Ainslie until I returned from England.
The Dean of Faculty—Are you sure that Mr. Brodie brought his pistols to Smith’s in the afternoon?
Witness—I am certain.
The Dean of Faculty—Did you not say that when he came to Smith’s before eight o’clock he had his pistol in his hand?
Witness—I did.
The Dean of Faculty—How could he have left them at Smith’s, then, in the afternoon?
Witness—I did not say he left them there; he brought them there, but carried them away with him again. I am certain as to the small pistols that Mr. Brodie carried in his breeches pocket.
The Dean of Faculty—Was Mr. Brodie present when the pistols were loaded?
Witness—He was.
The Dean of Faculty—When did Mr. Brodie first come to Smith’s that day, and how was he dressed?
Witness—He came in coloured clothes, between dinner and tea.
The Dean of Faculty—Might that be four o’clock?
Witness—I could not tell what o’clock it was.
The Dean of Faculty—Was it after three o’clock that afternoon?
Witness—I am not certain.
The Dean of Faculty—Was it after two o’clock?
Witness—Yes, I am certain it was.
The Dean of Faculty—Were these the pistols he brought with him? [The pistols produced.]
Witness—No, not these; I did not say these, but another pair, since the truth must be told. Do not think to trap me; you may make something of me by fair means, but not by foul. I do not understand the meaning of being thus teased by impertinent questions.
The Dean of Faculty—The more violent the gentleman is, so much the better for my client. The jury will take notice of the manner in which he gives his evidence.
Lord Eskgrove—My Lord Justice-Clerk, the witness should be told that he ought not to talk in that manner to the counsel.
The Lord Justice-Clerk [to witness]—Mr. Brown, you are going too far; it is the duty of these gentlemen to put any questions to you which they think proper, relating to the crime charged.
Witness—My Lord, in giving my evidence, I have said nothing but the truth, and I have rather softened the matter than otherwise, with regard to Mr. Brodie.
The Dean of Faculty—At what hour, sir, did you go to the Excise Office on the night you have mentioned, and when did you return to Smith’s?
Witness—As I was going down to the Excise Office the clock struck eight, and I was back again at Smith’s house about nine o’clock.
Cross-examined by Mr. John Clerk, for George Smith—Pray, sir, how do you know that to be the key with which Mr. Smith opened the door of the Excise Office? You said just now that you were not present when Smith opened the door; that he was in before you arrived.
Witness—I know very well that that was the key, because I knew he made it for that purpose.
Mr. John Clerk—But how do you know that he opened the door with that key on the 5th of March?
Witness—I know he made the key so far back as November last. I know the key very well; there is not a key in five hundred like it. You will not show me such a key in Edinburgh. There is no smith in this city could make such a key.
Mr. John Clerk—That is no answer to my question.
The Lord Justice-Clerk—It is enough to satisfy any sensible man.
Mr. John Clerk—It is for the jury, my Lord, to judge of that.
[To Witness]—You mentioned your having on a great-coat when you broke into the Excise Office; pray, sir, was that great-coat your own, or to whom did it belong?
Witness—It belonged to Michael Henderson, stabler in the Grassmarket, and I carried it home to him the following night.
Mr. John Clerk—Did you carry anything to Mr. Henderson along with it?
Witness—I did not.
The Lord Justice-Clerk—John Brown, you appear to be a clever fellow, and I hope you will now abandon your dissipated courses, and betake yourself to some honest employment.
Witness—My Lord, be assured my future life shall make amends for my past conduct.
The Lord Advocate—My Lord, the parole evidence on the part of the Crown being now closed, the declarations and other writings, which have been authenticated in the presence of your Lordships, fall now to be read to the jury, but as there are some parts of Smith’s declarations which relate to matters not immediately connected with the subject of the present trial, I do not desire that these parts of his declarations should be read by the Clerk of Court or communicated to the jury.
[After some conversation, this proposal, which did much honour to his Lordship, was agreed to, and such parts of the declarations as were not read in Court were pasted over with paper, that they might not be looked into through mistake by the jury after they were inclosed.]
Declarations of George Smith.
No. I.
At Edinburgh, 8th March, 1788.
The which day compeared, in presence of Archibald Cockburn, Esq., His Majesty’s Sheriff-depute of the shire of Edinburgh, George Smith, grocer in Edinburgh, who, being examined and interrogated by the Sheriff, declares,
That it is about a year and a half since the declarant came to Scotland; that he was never in it before; that he was born at Boxford, within four miles of Newburgh, Berkshire; that the declarant and his wife travelled the country of England as hawkers, with a horse and cart; that he brought a horse to this country but no cart; that, when he first came to Edinburgh, he put up at Michael Henderson’s, having heard his house mentioned by travellers in England as a traveller’s inn; that he was taken ill after his arrival in this country, and confined for about four months in Michael Henderson’s, which obliged him to send for his wife to this place; that he sent for goods from England, which he sold, as also his horse, in order to support himself.
That since he came to this country, he has frequented Clark’s in the Flesh Market Close, which is a gambling house, and in which house he was in use to meet with a variety of people, and among the rest Andrew Ainslie and John Brown; that the declarant first got acquainted both with Ainslie and Brown in Michael Henderson’s; that Ainslie gave himself out for a shoemaker, but the declarant cannot tell of what profession Brown is; that the club, as it was called, at Clark’s, as the declarant believes, has been doing little these three months past; that the declarant never played there to go very deep, and was never seen to win or lose above thirty shillings, having never taken more than that sum in his pocket alongst with him, but, upon recollection, thinks that he has won above thirty shillings; that the declarant inclines to believe that John Brown has rather been unfortunate at the club.
Declares and acknowledges that the declarant took a cellar in Stevenlaw’s Close from a woman whom he now sees in the office; that the declarant afterwards took Ainslie to the said woman and told her that this was the gentleman who was to possess her cellar; but he does not remember of calling him by the name of Campbell, or any other name; that the declarant gave the rent, which was ten shillings, to Ainslie, who gave it to the woman.
Declares that the declarant went with Ainslie to Mrs. Clark’s house in George’s Square, where Ainslie took a stable from that lady, but the declarant and Ainslie remained in the kitchen, and neither of them saw Mrs. Clark, as he thinks; that the declarant does not now recollect for what purpose Ainslie said it was he wanted to rent the stable; that the declarant saw Ainslie pay five shillings, or some such sum, as a month’s rent for the stable per advance.
And being interrogated, What was the purpose of the vice which stands in the cellar of his house?—Declares that he has had that for seven or eight years, and that he used it for putting tongues in buckles, or any thing of that sort, but he has not used it since he came to his present house; that his wife intended to have set out this day on a visit to her relations in England, and for that purpose the declarant took out for her a ticket in the mail-coach at Drysdale’s, where he exchanged a five-pound bank-note and paid for it.
Declares that the black dog now in the office belongs to a neighbour of his, but, from the declarant’s giving him now and then some bones to pick, he frequents the declarant’s house, and follows him and his wife; that the note he exchanged at Drysdale’s the declarant has had in his possession for above two months past; that he got it from a smuggler, and it was battered then as it is now. This he declares to be truth, and declares he cannot write.
Archibald Cockburn.
No. II.
At Edinburgh, 10th March, 1788.
The which day compeared, in presence of the Sheriff of Edinburgh, George Smith, formerly examined on Saturday, the 8th current, after having sent notice to the Sheriff that he wished to speak with him. Came to the office and told the Sheriff that he wished to have an opportunity of making a clean breast, and telling the truth, upon which the Sheriff informed him that, as he, the Sheriff, knew he stood in a very ticklish situation, it was his duty to let him know that whatever he told or discovered was not to be accepted of under any condition or promise whatever, or that his doing so would operate anything in his favour, and that therefore he was at perfect freedom, either to speak or hold his tongue, as he judged best. And that the said George Smith having declared that he wished to tell the truth, and communicate all the guilty scenes in which he had been concerned for some time past, since he came to the town of Edinburgh, he was desired to proceed.
Declares that, in the end of October, or beginning of November last, the declarant, in company with Andrew Ainslie and John Brown, whose real name is Humphry Moore, went to the College of Edinburgh about one o’clock in the morning. Having got access at the under gate, they opened the under door leading to the Library with a false key, which broke in the lock, and thereafter they broke open the door of the Library with an iron crow, and carried away the College mace.
Declares that the declarant has, almost since his first arrival in Edinburgh, been acquainted with Deacon William Brodie, and he saw him first at Michael Henderson’s, where he was introduced to the declarant by one Graham at the time the declarant was confined in that house; that Brodie, in the course of conversation, suggested to the declarant that several things could be done in this place, if prudently managed, to great advantage, and proposed to the declarant that they should lay their heads together for that purpose.
That, in consequence of this concert, the declarant and Brodie were in use to go about together, in order to find out the proper places where business could be done with success; that Brodie, in their walks, carried the declarant to the College Library, where, having observed the mace standing, Brodie said that they must have it; that Andrew Ainslie was afterwards sent by the declarant and Brodie to look at the Library, under pretence of calling for somebody, in order to see if the mace was always in the same place, as they suspected it might be one day in the Library and another somewhere else, which would have rendered an attempt upon the Library precarious; that Ainslie reported that the mace was in the same place that the declarant and Brodie had seen it, and, upon getting this report, the theft of the mace was committed as before mentioned.
Declares that, since the mace was stolen, as the declarant thinks, the declarant, along with Brown and Ainslie, laid a plan of breaking into John Tapp’s house and taking his money; that this business was suggested, and pressed, by Brown, the declarant rather being averse to it; that Brown told the declarant that he knew the key of Tapp’s shop opened the door of his house, and brought it to the declarant to look at, which, upon seeing, the declarant said there was nothing in it, meaning by that, that the lock to which it belonged could easily be opened.
Declares that, accordingly, soon after this, and, as he thinks, about Christmas or near to it, Brown kept Tapp in his shop drinking, and the declarant and Ainslie, betwixt nine and ten o’clock at night, opened the door of the house with a false key and took out of his drawers eighteen guinea notes and a twenty-shilling one, a silver watch, some rings, and a miniature picture of a gentleman belonging to Tapp’s wife, which picture they broke for the sake of the gold with which it was backed.
Declares that in the month of August last, as he thinks, the declarant, in company with William Brodie and Andrew Ainslie, went to a shop in Leith, which they broke into by means of two pick-lock keys, one for the padlock and another for the stock-lock; that the declarant and Ainslie went into the shop and Brodie kept watch, to give an alarm in case of danger; that from this shop they carried off two pair of wallets full of tea, which were taken from four chests; that Ainslie was ill at this time, and Brodie being weakly, Ainslie and he could scarcely manage one of the wallets, which obliged him to put it into an old press bed (as the declarant took it to be) which they found standing in a shed in a field adjoining to the Bonnington Road to Leith; that it was proposed to lodge the tea in Brodie’s, but he afterwards objected to it, which was the reason that they never inquired after it more.
That about two months ago the declarant, in company with Andrew Ainslie, broke into the shop of Inglis, Horner & Company, and took therefrom a large assortment of valuable goods, composed of silks and cambricks; that the silks were mostly black, excepting two pieces, a piece of plain white sattin, a piece of variegated ditto, and a lead-coloured silk, in quantity about ten yards, which Brown gave to a girl, an acquaintance of his, of the name of Johnston; that the silks were all sent to England, except the silk before-mentioned, a piece of black silk of about two yards and a quarter, in two odd bits, which the declarant gave to his wife to make a cloak to her child, and about twelve yards and a half of thick tweel’d black silk for gentlemen’s vests and breeches, and two yards and a half of black florentine sattin, with about six yards of cambrick.
That Brodie suggested to the declarant the doing of Inglis & Horner’s shop, as the goods there were very rich and valuable, and a small bulk of them carried off would amount to a large sum; that Brodie and the declarant went frequently to try the pad and stock-lock of Inglis & Horner’s shop, and they did so most commonly on the Sunday forenoon, when the people were in church; that the padlock was of a difficult construction, and was opened at last by a key of the declarant’s own making; that Brodie made one that did it also, and he on one occasion went by himself with his key and unlocked the padlock, but could not lock it again, upon which he came to the declarant and told him what he had done, which he did also to Ainslie and Brown; that they were all very angry with him, and said that he had more than likely spoilt the place after all the trouble they had been about, but Brodie told them he hoped not, as he had fixed the padlock with a bit stick in a way that it would not be discovered, and, upon looking at the place afterwards, which they all did, they found the lock to be just as it was.
Declares that on Wednesday evening, the 5th instant, the declarant, along with William Brodie, John Brown, and Andrew Ainslie, between the hours of eight and ten o’clock at night, broke into the Excise Office and carried off from that about sixteen pounds, consisting of two five-pound notes, four guinea notes, one twenty-shilling note, and about seventeen shillings and sixpence in silver; that this money was divided among them, and Brodie received his share.
That Brodie first planned the Excise Office, and repeatedly carried the declarant there under pretence of calling for Mr. Corbett from Stirling, and other people, in order to learn the situation of the place, and, on one of these occasions, the declarant observed the key of the outer door hung upon a nail near by it, and, without taking it down, he clapped some potty upon it, and carried away the wards; that Brodie took a drawing of the wards of that key, which the declarant thinks he has in his possession; that Brodie told the declarant how to get into the cashier’s desk, and where the money lay, which was in two places, and in each of these places some money was found; that Brodie came to the knowledge of these circumstances, by being present, when Mr. Corbett, from Stirling, who is a connection of Brodie’s, drew money at the cashier’s office.
That, when they broke into the Excise Office, the outer door was opened by a key which the declarant had filed from the pattern before-mentioned; that the plan of accomplishing this business was as follows:—Ainslie was to keep on the outside of the office, hanging over the palisadoes in the entry with a whistle of ivory, which was purchased by Brodie the night before, with which, if the man belonging to the Excise Office came, he was to give one whistle, and if any serious alarm was perceived he was to give three whistles, and then make the best of his way to the Excise gardens in the Canongate in order to assist the declarant, Brodie, and Brown to get out at the back window of the hall, it being determined in case of surprise to bolt the outer door on the inside and make the best of their way by the window.
That Ainslie was armed only with a stick, which he left somewhere in the court, and which stick was purchased by the declarant; that Brodie had a brace of pistols, the declarant a brace and a half, and Brown a brace, which the declarant borrowed from Michael Henderson; that these arms were all loaded with double balls, as they were determined not to be taken, whatever should be the consequence.
That the declarant and Brown were told afterwards by Brodie and Ainslie that a person had come running down the court and gone in at the outer door and upstairs; that upon this Ainslie had given the alarm by a whistle, as was agreed upon, and made the best of his way, but none of them in the inside heard the whistle, at least neither Brown nor the declarant did, and Brodie said he did not; that when the door opened Brodie was standing behind it, and, upon the person’s running up stairs, Brodie made off; that the declarant and Brown, when in the cashier’s room, heard the outer door open, but, trusting to Brodie’s being at the door and staunch, they did not mind it; that the declarant and Brown, when coming out of the cashier’s office, heard a person coming hastily down stairs, which made them stop or they must have met him; that upon this the declarant said to Brown, “Here must be treachery; get out your pistols, and cock them,” which they did accordingly; that upon coming to the outer door they found it shut, the declarant and Brown having seen the person that came down stairs smash the door after him when he went away.
That the declarant and Brown went down into Young’s Street, where Brown gave the declarant a small crow, with some wedges, and a shirt, as also a large chissel; that the chissel and the shirt were given to Brodie afterwards, with the bank-notes, the declarant’s dark lanthorn, and two bottles, which they had carried off from the Excise Office, and took for wine; that the key with which the outer door was opened, the crow, and a pair of curling irons with which the outer door of the cashier’s room was opened, were all hid by the declarant in a wall between the Earthen Mound and the North Bridge.
That, in virtue of repeated observations, it was discovered that two men watched the Excise Office time about, and Ainslie and Brown found out that from eight to ten o’clock at night there was commonly no man in the Excise Office, which was the reason of the thing being done at that time.
That it was concerted by Brodie, in case of interruption, by the man coming into the office before the business was accomplished, to conceal themselves quietly until he was gone to rest, and then to secure him; and they were, if this happened, to personate smugglers who came in search of their property that had been seized, and the declarant had a wig of Brodie’s father’s in his pocket in order to disguise himself; that the wig and scarf and small wedges were left in the second arch from the south of the North Bridge; that the scarf was within the wig.
That Brodie, after having been in the Excise, where he had on black clothes, went home and changed them to his ordinary dress, of a marbled colour, and a round hat; and that Brodie told the declarant that his sister had remarked him changing his dress in such a hurry.
That there is in Brodie’s house a horse-pistol belonging to the declarant, as also a very large, remarkable key, which Ainslie and Brodie stole from the Abbey when there was a sale there; that Brodie has a parcel of keys of different sorts, which he has been altering, and among them is the key which he had made for Inglis & Horner’s padlock; that, in Brodie’s bedroom, there is a chest containing a false till, in which the declarant inclines to think some of Brodie’s false dice and other things leading to a detection of his guilt may be found.
That the College mace and Tapp’s watch were sent to Chesterfield, under the direction of William Ward, at William Cowley’s, “Bird in Hand,” Chesterfield, Derbyshire, to which place, and at which time, the rings taken from Tapp and the gold from the miniature picture were also sent; that a private letter was wrote by Brown, as he thinks, to one Tasker, formerly of this place, and whose real name is Murray, a man of bad character, which letter had no name at it but only a G. and S., and a stroke for each of the other letters in the declarant’s name; that the pocket-book taken from Tapp’s, with the money, was thrown by Ainslie and the declarant into a deep piece of water to the south of the Meadows.
That the goods taken from Inglis & Horner’s shop were sent to Chesterfield in trunks, one of which was purchased by the declarant and another by Ainslie; that the declarant knows the places where they were purchased, and will point them out.
That the first trunk went from this by the Berwick carriers three weeks ago on Wednesday next; that the goods were removed from a cellar, in which they were originally put, in Stevenlaw’s Close, taken for the purpose, notwithstanding of what was said by the declarant in his declaration of Saturday last; that Ainslie went and brought a porter from the street, who received the goods from the declarant and Ainslie half-way or more up Burnet’s Close, where Brown and Ainslie lodged, near the bottom; that the porter had no creel, but only ropes, with which he tied the trunk upon his back; and Ainslie followed him and saw him carry and deliver it to the Berwick carrier’s quarters, for which he received sixpence.
That the second parcel of the above goods were sent under the direction of Elizabeth Scott or Sprott, at William Cowley’s, “Bird in Hand,” Chesterfield, and the reason of putting this was because the initials of her name were upon the top of the trunk; that no letter was wrote to Tasker or Murray about the last parcel of goods, as the declarant’s wife was to have left this on Saturday last, and the declarant told her he had some goods for her to dispose of at Chesterfield; but she knew nothing how the goods were obtained, and is entirely innocent of any participation or knowledge of his crimes.
Declares that Brodie brought with him to the declarant’s house, a day before, as he thinks, the Excise Office was robbed, a coil of ropes, new, which he either had in his possession or must have bought, as also a strong chissel with a brass virral, and two pieces of wax taper; that the brass chissel is, as the declarant believes, now in Brodie’s shop or house.
That the coulter with which the inner door of the Excise Office was broke open, and two iron wedges, were taken from a plough by Brown and Ainslie near to Duddingston, as they said, the Friday before; and the declarant makes no doubt but a black dog, Rodney, might be with them, which used to follow the declarant and them; that the coulter and wedges were left in the cashier’s office, and were concealed in Salisbury Crags from the time the coulter was taken away to the time the Excise Office was broke. This he declares to be truth.
And further declares that the ropes brought by Brodie, as before mentioned, are in the declarant’s house, as also a vice and files and a spring-saw, with which the declarant used to make and alter keys; that the saw the declarant got from Brodie about five or six months ago; that the declarant, before this, bought a saw, with a pair of large pincers, at a hardware shop below Peter Forrester’s, on the High Street, and the declarant inclines to think that Brodie bought his saw at the same place; that in the declarant’s drawer, along with the said saw and files, there will also be found a keyhole saw, which was bought and given to the declarant by Brodie.
This he also declares to be truth; and declares that the declaration emitted by him on Saturday last, so far as is inconsistent with the present, is not true.
George Smith.
Archd. Cockburn.
No. III.
At Edinburgh, 19th March, 1788.
The which day compeared, in presence of Archibald Cockburn, Esq., advocate, His Majesty’s Sheriff-depute of the shire of Edinburgh, George Smith, present prisoner in the Tolbooth of Edinburgh, who, being examined, declares,
That the small crow, the false key, and the curling tongs, now shown to him, are the same that were found by the declarant, William Middleton, A. Williamson, and J. Murray, in an old dyke on the 16th instant, and the label annexed to them is signed by the declarant as relative hereto, of this date.
Declares that the said crow was carried to the Excise Office for the purpose of opening the desks in the cashier’s room; that the said false key is the one that opened the outer door of the Excise Office, and the curling tongs were squared at the point by the declarant and taken to the Excise Office for the purpose of opening the spring latch of the outer door of the cashier’s room, which it did.
And, being shown a coulter and two wedges, declares that he believes they are the same that were used in forcing open the inner door of the cashier’s room in the Excise Office and were left there.
And, being also shown a spur, with the upper leather at it, declares that it belonged to William Brodie; and the declarant tore the end of the leather in order that it might appear, when found, to have dropped from the foot by its being torn by accident by the buckle; that Brodie brought the said spur to the declarant’s house, and from thence it was taken to the Excise Office, on purpose that it might be left there, to make it believed it had been done by some persons on horseback; that the spur was left in the Excise Office by John Brown, as the declarant was told by him upon the declarant’s questioning him if he had done it, and the label annexed to the spur is signed by the declarant as relative hereto, of this date.
And, being shown a parcel of ropes which the declarant is now told were found in his house, declares that the declarant has no doubt but that they are the same ropes which were brought to the declarant’s house by Brodie, and, after being knotted into a ladder, were carried to the Excise Office by the declarant, brought from thence by him, and unknotted again in the declarant’s house, in which case he now sees they are.
And, being shown a pick-lock, which the declarant is informed was found in William Brodie’s counting-room in the shop, declares that it is the same which William Brodie gave to the declarant in his own house before they went to the Excise Office, and which Brodie wanted to fasten with some nails, as the handle of it went round when the pick-lock was much pressed; declares that the declarant carried that pick-lock to the Excise Office, and, after they had left it, it was returned by the declarant to Brodie when under the arch of the North Bridge, where Brodie’s father’s wig, the scarf, and wedges were left, as mentioned in his declaration of the 10th instant; and the label annexed to the said pick-lock is signed by the declarant as relative hereto, of this date.
And being shown a black case, with a lid to it, the case full of potty, declares that it was found, as the declarant thinks, in Mr. Brodie’s drawers by the declarant and George Williamson on Monday, the 10th instant; that the declarant had often seen the said case, with potty in it, before in Brodie’s possession when in the declarant’s house, and the declarant approved of Brodie’s keeping the potty in a case, as the lid prevented an impression of a key when taken from being defaced; and the said case and potty having now a label annexed to it, the same is signed by the declarant as relative hereto, of this date.
And, being shown a five-pound note, declares it is the same five-pound note which the declarant carried to Drysdale’s and changed there, to purchase his wife a ticket in the Newcastle stage; that the declarant believes it to be one of the five-pound notes taken from the Excise Office, they being both of the Glasgow Bank, but the other five-pound note was not ornamented with the same colour with the one now shown to him; that the notes were pasted on the back by Brodie, and the one now produced is signed by the declarant on the back as relative hereto, of this date.
And being shown a parcel of keys, declares that they are the same which were pointed out by the declarant concealed in Salisbury Crags, on the 7th instant, to William Middleton, Alexander Williamson, and James Murray, and the label annexed to them is signed by the declarant as relative hereto, of this date. Declares that among this parcel there is the false key which opened the outer door of Inglis & Horner’s shop, to which the declarant now sees a label annexed, and which is signed by him as relative hereto, of this date.
And being shown a parcel of keys which were found by the declarant and George Williamson upon the 10th current, declares that the double clank among the said parcel was brought by the declarant from Sheffield, and given to Brodie, the reason of which was for fear it should be found in the declarant’s possession and thereby create suspicion, but it was not likely to be discovered in Brodie’s. Declares that the heads and stalks of two keys in the said parcel were cut from old keys by Brodie, and were intended to be finished for the purpose of opening the spring latch of the outer door of the cashier’s room in the Excise Office; that a false key in the said parcel, finished, was made by Brodie for the purpose of opening the door of the Chamberlain’s cash room of the city of Edinburgh; and to the said double clank, the heads and stalks of two keys for the Chamberlain’s room, the declarant sees labels annexed, of this date, and are signed by the declarant as relative hereto. The declarant and Brodie had frequently been at the door of the Chamberlain’s office, in order to take the impression of the keyhole; that Brodie showed the declarant the said key after it was made, and Brodie told the declarant that it did not answer.
And being shown two parcels of keys, with labels annexed to them, and two pieces of black stockings, declares that they are the property of the declarant, and were concealed by him in Salisbury Crags, and the labels annexed to them are signed by the declarant and Sheriff as relative hereto, of this date.
And being shown two trunks, declares that they are the same two trunks that were purchased by the declarant and Andrew Ainslie; that the round one was purchased by the declarant from a man opposite to Todrick’s Wynd, whom he saw this day in the office, for which the declarant paid three shillings, and the other was purchased by Ainslie from a man nearly opposite to Richardson’s, the smith, in the Cowgate; that the declarant first bargained for it himself, but the declarant afterwards sent Ainslie, who bought it for five shillings and sixpence, or six shillings.
That the goods taken from Inglis & Horner’s shop were put into the said two trunks, sent to the said Berwick carrier’s quarters, and to the Newcastle waggoner’s, as mentioned in his former declaration; that the direction on the round trunk is, as he believes, of the handwriting of Ainslie, and the direction upon the other of the handwriting of Brown, of which he is certain. All which is truth, &c.
George Smith.
Ar. Cockburn.
No. IV.
At Edinburgh, 17th July, 1788.
The which day compeared, in presence of the Sheriff-Substitute of the shire of Edinburgh, George Smith, late grocer, Cowgate, now prisoner in the Tolbooth of Edinburgh, who being examined and interrogated, declares—
That on the 10th of March last the declarant was carried to Mr. Brodie’s yard and workshop by Alexander and George Williamson, in order to point out a place where it was supposed some false keys, which Mr. Brodie had, were hid.
That in the under workshop, and in the bottom of a vent which was used as a fireplace for melting the glue, the declarant, when digging for the false keys, found a little under ground a pair of pistols wrapped in a piece of green cloth, which the said Alexander and George Williamson took into custody, and lodged in the Sheriff-clerk’s office.
That the declarant saw the said pistols and piece of green cloth yesterday in the Sheriff-clerk’s office, and knew them to be the same that were found as above, and the reason of the declarant’s knowing them was, that he had these pistols in loan from Mr. Brodie for a considerable time; and the declarant had the said pistols with him when the Excise Office was broke into on the evening of the 5th of March last.
Declares that the same evening, after breaking into the Excise Office, the declarant delivered the pistols to Mr. Brodie, being afraid of taking them to the declarant’s house in case of a search. This he declares to be truth.
George Smith.
John Stewart, Sh. Subst.
Declaration of William Brodie.
At Edinburgh, this 17th July, 1788.
The which day compeared, in presence of Archibald Cockburn, Esq., advocate, His Majesty’s Sheriff-depute of the sheriffdom of Edinburgh, William Brodie, wright and cabinetmaker in Edinburgh, who being examined and interrogated by the Sheriff, declares—
That he does not at present recollect the name of the vessel in which the declarant went from the river Thames to Holland in the month of April last; that is, in which he arrived at Holland in April last.
That, before he left the vessel, he gave some letters, at present he does not recollect the number, written by himself, to one Geddes, a passenger on board the vessel.
And being shown a letter directed to Michael Henderson, signed W. B., dated Thursday, the 10th of April last, declares that he cannot say that the letter was not wrote by him and given to Geddes.
And, being interrogated, if one of the letters given to Geddes was not directed to Mr. Matthew Sheriff, upholsterer in Edinburgh, and signed John Dixon, dated Flushing, Tuesday, the 8th of April, 1788?—Declares that the declarant cannot give any positive answer to that question, and he does not suppose he would have signed any letter at that time by the name of John Dixon, especially as he had wrote some letters at the same time, and given them to Geddes, signed by his initials W. B.
Declares that the declarant, when taken into custody at Amsterdam, on the 26th of June last, went by the name of John Dixon.
Declares that the declarant first became acquainted with George Smith in Michael Henderson’s a long while ago, when Smith was indisposed and bedfast there; that the declarant has been in George Smith’s house in the Cowgate. And being interrogated, declares that he cannot say positively whether he was in Smith’s house any day of the week before the declarant left Edinburgh, which, to the best of the declarant’s recollection, he did upon the 9th of March last, and upon a Sunday, as he thinks.
Declares that, having received a message that some person in the jail of Edinburgh wanted to see him, he went there and found it was either Smith or Ainslie who had been inquiring for him; but the declarant, when going there, was told by the keeper that neither Smith nor Ainslie could be seen; and that this was the night preceding his departure from Edinburgh.
Being interrogated, If reports had not been going of the Excise Office having been broke into the week before the declarant left Edinburgh, if he, the declarant, would have taken that step?—declares that it was not in consequence of that report that he left Edinburgh, but that the declarant, being acquainted with Smith and Ainslie, then in custody, did not know what they might be induced to say to his prejudice, was the cause of his going away.
Declares that the declarant has frequently been in company with John Brown, alias Humphry Moore (as is reported to be his real name), Andrew Ainslie, and George Smith, and drank with them.
And, being shown three letters, one dated Thursday, 10th April, 1788, directed to Mr. Michael Henderson, Grassmarket, signed W. B.; another dated Flushing, Tuesday, 8th April, 1788, directed to Mr. Matthew Sheriff, upholsterer in Edinburgh, and signed John Dixon; another, dated Thursday, 10th April, 1788, directed to Mrs. Anne Grant, Cant’s Close, Edinburgh, signed, W. B., and, desired to say whether or not the said three letters are holograph of the declarant?—declares that he does not incline to give any positive answer, the appearance of writing varies so much. This he declares to be truth.
Will. Brodie.
Arch. Cockburn.
Copy of a Letter from William Brodie, under the name of John Dixon, to Mr. Matthew Sheriff, upholsterer in Edinburgh.
Flushing, Tuesday, 8th April, 1788,
12 o’clock forenoon.
My dear Friend,
Sunday, the 23rd ult., I went on board a ship cleared out for Leith, but by a private bargain with the captain was to be landed at Ostend. I have been on board ever since the 23rd. Most of the time we lay aground a little below Gravesend. Owing to thick weather and cross wind, we are obliged to land here; but this afternoon I will set off, by water, for Bruges, and then for Ostend (so I begin my travels where most gentlemen leave them off), where I shall remain, for some time at least, until I hear from Mr. Walker; and, indeed, I will require three weeks to recruit, for I have suffered more from my sore throat than sufficient to depress the spirits of most men. There was for twenty days I did not eat ten ounces of solid meat; but, thank God, I am now in a fair way. My stock is seven guineas, but by I reach to Ostend will be reduced to less than six. My wardrobe is all on my back, excepting two check shirts and two white ones, one of them an old rag I had from my cousin Milton, with an old hat (which I left behind), my coat, an old blue one, out at the arms and elbows, I also had from him, with an old striped waistcoat, and a pair of good boots. Perhaps my cousin judged right, that old things were best for my purpose. However, no reflections; he is my cousin, and a good prudent lad, and showed great anxiety for my safety; rather too anxious, for he would not let me take my black coat with me, nor Mr. Nairn’s great-coat, which makes me the worse off at present; but I could not extract one guinea from him, although he owes me twenty-four pounds for three years past. He turned me over to Mr. Walker, who supplied me with twelve guineas. He is a gentleman I owe much to. I wish I may ever have it in my power to show my gratitude to him and Mr. Nairn. Had Milton been in my place, and me in his, my purse, my credit, and my wardrobe, my all, should have been at his disposal. However, let not this go farther, lest it should have an appearance of reflection upon a worthy man. He cannot help his natural temper.
I would have wrote to Mr. Nairn, but for certain reasons I believe it is not proper at present. Please to communicate this to him. And I beg that everything may be sent to me that you, Mr. Nairn, and my sisters may think useful to me, either in wearing apparel, tools, or even a small assortment of brass and iron work. Please send my quadrant and spirit level; they lie in a triangular box in my old bedroom. My brass-cased measuring line, and three-foot rule, my silver stock buckle, it is in the locker of my chest, and my stocks, they will save my neckcloths. If my sister pleases to send me some hand towels, they will be serviceable to me, whether I keep a house or a room.
I most earnestly beg of Mr. Nairn that my remittances be as liberal as possible; for without money I can make but a poor shift; for, you must think, my days for hard labour is near expiring, although, with my constitution, I may be able to carry on business for many years, and perhaps with success.
I have not yet received the trunk with my shirts and stockings, but will write Mr. Walker to forward it to Ostend, where I will be under the necessity of buying some things. And I hope by the time I come to New York I will have some things waiting me there. Whether it is best to send them by the Clyde or Thames, you and Mr. Nairn will judge best. And I hope to have a long letter from each of you, and one from my sister Jeany; and your’s will include your wife’s. They may be put in with my things, and any other letters my friends are pleased to send. Direct for Mr. John Dixon, to the care of the Revd. Mr. Mason, at New York. I am not sure of settling there, but will make for it as soon as I can.
I have no more time, the boat just going off for Bruges or Ostend.
I am,
Dear Sir,
Yours for ever,
John Dixon.
Wrote on the back thus—
Let my name and destination be a profound secret, for fear of bad consequences.
(Addressed) Mr. Matthew Sheriff, Upholsterer, Edinburgh.
Copies of two Letters, upon one sheet of paper, from William. Brodie to Mr. Michael Henderson.
Thursday, 10th April, 1788.
Dear Michael,
I embrace this opportunity of writing you, and I make no doubt but it will give you, Mrs. Henderson, and a few others satisfaction to hear that I am well.
Were I to write you all that has happened to me, and the hairbreadth escapes I made from a well-scented pack of bloodhounds, it would make a small volume.
I left Edinburgh Sunday, the 9th, and arrived in London Wednesday, the 12th, where I remained snug and safe in the house of an old female friend until Sunday, 23rd March (whose care for me I shall never forget, and only wish I may ever have it in my power to reward her sufficiently), within 500 yards of Bow Street. I did not keep the house all this time, but so altered, excepting the scar under my eye, I think you could not have rapt[14] to me. I saw Mr. Williamson twice; but, although countrymen commonly shake hands when they meet from home, yet I did not choose to make so free with him, notwithstanding he brought a letter to me; he is a clever man, and I give him credit for his conduct.
My female gave me great uneasiness by introducing a flash man to me, but she assured me he was a true man, and he proved himself so, notwithstanding the great reward, and was useful to me. I saw my picture[15] six hours before exhibited to public view, and my intelligence of what was doing at Bow Street Office was as good as ever I had in Edinburgh. I left London on Sunday, 23rd March, and from that day to this present moment, that I am now writing, have lived on board a ship, which life agrees vastly well with me. It is impossible for me at present to give you my address, but I beg you will write me, or dictate a letter to Thom, and let it be a very long one, giving me an account of what is likely to become of poor Ainslie, Smith, and his wife; I hope that neither you, nor any of your connections, has been innocently involved by those unfortunate men, or by that designing villain Brown; I make no doubt but he is now in high favour with Mr. Cockburn, for I can see some strokes of his pencil in my portrait. May God forgive him for all his crimes and falsehoods. I hope in a short time to be in Edinburgh, and confute personally many false aspersions made against me by him and others. Write me how the main went; how you came on in it; if my black cock fought and gained, &c., &c. As I can give you no directions how to write me, you’ll please seal your letter, give it to Robert Smith, and he will deliver it to my sister, who will take care that it be conveyed safe to me wherever I may happen to be at the time, for I will give such directions that everything that is sent to me shall be forwarded from place to place until it come to my hand. I have lived now eighteen days on board of ship, and in good health and spirits, although very bad when I came on board, having my tongue and throat in one ulcer, not a bit of skin upon either, and the medicines I took in my friend’s and by her direction (for she is one of experience), just beginning to operate; but I found it necessary, at all events, to remove, so I underwent a complete salivation on board ship. During all my trials since I left Edinburgh, my spirits nor my presence of mind never once forsook me, for which I have reason to be thankful. My best compliments to Mrs. Henderson, and I will order payment of the two guineas as soon as I have accounts from the gentleman I have intrusted with my affairs; let her not be anxious about it, for, if I live, it shall be paid.
Dear Michael,
I am very uneasy on account of Mrs. Grant and my three children by her; they will miss me more than any other in Scotland; may God, in His infinite goodness, stir up some friendly aid for their support, for it is not in my power at present to give them the smallest assistance; yet I think they will not absolutely starve in a Christian land where their father once had friends, and who was always liberal to the distressed.
I beg you will order the inclosed to be delivered into her own hand; and I will take it kind if Mrs. Henderson will send for her and give her good advice. I wish she may be enabled to keep what little furniture she has together.
I think she should endeavour to get her youngest daughter Jean sent to Aberdeen to her friends, where she will be well brought up, and I will order an yearly board to be paid for her, perhaps six pounds per annum; it will be an ease to Mrs. Grant, and better for the child. My eldest daughter Cecill should be put apprentice to the milliner or mantua-making business; but I wish she could learn a little writing and arithmetic first. I wish to God some of my friends would take some charge of Cecill; she is a fine, sensible girl, considering the little opportunity she has had for improvement. I have been now eighteen days on board, and I expect to land somewhere to-morrow. The ship rolls a good deal, and it is with some difficulty I get this wrote, and my paper being exhausted I shall conclude this epistle. Please make my compliments to Mr. Clark, and a few other friends, and in particular, to Mr. Balmano, and acquaint him I glimed the scrive[16] I had of him. He is a gentleman I have a great regard for. Pray do not forget writing me a long letter. I am,
Dear Michael,
For ever your’s.
W. B.
Pray do not show this scroll to any but your wife.
(Addressed) Mr. Michael Henderson, Grass-market, Stabler, Edinburgh.
Copy of a Letter or Unsigned Scroll, in the handwriting of William Brodie, and founded on in the Indictment, marked No. 1.
My dear Sir,
By short instructions sent me when I left London, which I think were drawn up in my cousin Milton’s hand, I was forbid writing to any one in Britain, Mr. Walker excepted, for a year or two; but this order, if necessary, I find it not easy for me to comply with, for I must correspond with my friends in whatever part of the globe I am, and I hope they will do so with me, and write them when an opportunity offers. I have gone through much, in every sense of the word.—J. D. and M.
I wrote Mr. Walker from this the 12th current. I received an answer the 18th, and wrote again the 23rd current, and upon receiving his next I hope to be enabled to embark in the first ship for America, to whatever port she is bound, which will probably be Charlestown, South Carolina, as there is a ship lying-to for that port; and notwithstanding the climate is very hot, and not so salutary to British constitutions, especially at the time I will arrive, which will be about the dog days. I will settle there if I think I can do better than at Philadelphia or New York. Longevity to me is now no object; but, at any rate, I will be at New York, and I hope to find there letters, and, if possible, some clothes and tools, otherwise I will be badly off indeed.
It grieves me to hear my creditors were so rigorous hasty, but well pleased on hearing the deed and conveyance had the proper effect. I hope all my creditors will be paid, and a reversion, which can be no object to the Crown. Were an application made to the Solicitor, and, if needful, a supplication in my name to his mother, and uncle the Treasurer, perhaps it might be a means either of quieting or getting easier through the threatened suit with the Crown; but this is only my idea.
At any rate, if my clothes and tools must go to sale, a proper assortment of tools, put into my best chest, might be put up in one lot, and my wearing apparel and linens in another lot. They are worth more to me than any one, and I think few in Edinburgh will bid for them if known they are designed for me; but if any one bids their value, in God’s name let them have them, otherwise I hope they will be bought for me. I wish it were possible for me to know, before I left this, if I might expect them at New York; if otherwise, I will be under an absolute necessity of laying out what little money may remain, after paying my passage and clearing my board and lodging here, to my last shilling, and buying a few necessaries, otherwise I will land almost naked; and, if possible, to reach a few tools, both of which, I am informed, are 50 per cent. dearer in America than here.
I received from Mr. Walker, in all, £12 16s., and he would pay something for three days I slept in Mr. Rose’s, though I am at present three guineas in debt to my landlord, and not a stiver in my pocket for four days past. This is the dearest place I was ever in.
I beg I may hear from you when at New York, and, if directed to Mr. John Dixon, to the care of the Reverend Dr. Mason, I will certainly receive it (as I know no other name there to desire you to direct it to), for I will certainly call there, whatever part I land or settle in, in expectation of letters, &c., and, in particular, a long letter from you, in which please answer the following questions without reserve. I am prepared to hear the worst:—How does my dear sisters keep their health? I hope the shock of my departure, and what followed, has not injured either of them in health. How did they stand it? Where does my sister Jeany live? I hope there is no alteration in Mr. Sheriff’s friends to my dear Jamie. If money is an object, it is all in his favour. How is Mr. and Mrs. Grant, and Mr. William, to whom I am for ever much obliged for settling my passage. It was a deep cut, but the more I am obliged to him and shall never forget it. He is a feeling and a generous gentleman.
I am sorry I cannot say so much of my cousin Milton, although he, too, was anxious for my off-going. How does my uncle and Mrs. Rintoull keep their health? From his conduct and repeated expressions, I never had much reason to expect anything from him, but now far less, although I be more needful. I believe few at my age ever went out more so. At present I am destitute of everything. I can put every article I have upon my back, and in my pocket. How does Mrs. Campbell and her son’s family?
Who were the most forward of my creditors to attach? How does my affairs turn out in the whole? If Robert Smith is employed, has he been active and attentive? He would need to be looked after, although he may be useful; and any news or alterations relating to my friends that may have happened.
What has been done, or likely to be done, with the two unfortunate men, Smith and Ainslie, and the greater villain, John Brown alias Humphry Moore? Was John Murray alias Jack Tasker brought from England?
Whatever these men may say, I had no hand in any of their depredations, excepting the last, which I shall ever repent, and the keeping such company, although I doubt not but all will be laid to me. But let me drop this dreadful subject.
[Signed with the following initials]:—
S. W., T. L., R. S., J. M., J. S.
Copy of a Letter or Unsigned Scroll, in the handwriting of William Brodie, founded on in the Indictment, marked No. 2.
Pray write me what is become of Anne Grant, and how is her children disposed of. Cecill is a sensible, clever girl, considering the little opportunity she has had of improving. My dear little Willie will be, if I can judge, a brave and hardy boy.
Jean is her mother’s picture, and too young to form any opinion of.
What has become of Jean Watt? She is a devil and a ——. I can form no opinion of Frank or his young brother; but pray write me how they are disposed of.
If you please, write me what is become of the two unhappy men, Smith, and his wife, and Ainslie. Are they yet? Is their trial come on? and the greater villain John Brown alias Humphry Moore? I shall ever repent keeping such company, and whatever they may alledge, I had no direct concern in any of their depredations, excepting the last fatal one, by which I lost ten pounds in cash; but I doubt not but all will be laid to my charge, and some that I never heard of.
[The following is written at the foot of the page:—]
I often went in a retregard. I have been all my life in a reteregard motion.
[What follows is written on the other side.]
Does Mr. Martin stand his bargain? Is any of my late property sold? Who is making out my accounts? Has Robert Smith been useful and active in my affairs? He is double and would need looking after.
Perhaps, in the course of making out and settling my accounts, some questions may occur that I may solve. If there is any such, please write them down, and I will answer them in course. Has any settlement taken place with Mr. Little? I am afraid my affairs will be a laborious task to you; but I hope all my creditors will be paid, and a reversion.
If all my moveables are not yet sold, I beg my clothes and linen, and a set of useful tools may be preserved for me; they are worth more to me than another.
I wrote more fully some time ago to Mr. Walker on this head, and also Mr. Sheriff, the 8th April; but I know not if he received it. Pray let me know if he did, and how he stands affected towards me. Whatever be his sentiments, I shall always esteem him and regard him as my brother, but I shall never write another friend until I hear from you, and have your opinion how they will take it.
Pray, did Captain Dent ever make any discovery who I was when he arrived at Leith.
[Signed with the following initials]:—
J. L., J. M., R. S., J. S.
COPY OF AN ACCOUNT OR STATE, IN THE HANDWRITING OF WILLIAM BRODIE,
FOUNDED ON IN THE INDICTMENT.
(Hitherto Unpublished.)
A State of my Affairs as near as I can make out at present from Memory, having no other Assistance.
Copy of a Letter from Messrs. Lee, Strachan & Co., merchants in London, to Messrs. Emanuel Walker & Co., merchants in Philadelphia.
London, 1st May, 1788.
Messrs. Emanuel Walker & Co.
Sirs,
You will please to supply the bearer, Mr. John Dixon, with cash to the amount of fifty pounds sterling, taking his bill on Mr. William Walker, attorney in the Adelphi, London, for the same, which will be duly honoured, and oblige,
Sirs,
Your most obedient
Humble Servants,
Lee, Strachan & Co.
Messrs. Emanuel Walker & Co., Philadelphia.
Evidence for Defence.
[The counsel for Mr. Brodie here observed that the object of the exculpatory proof was to show that, on Wednesday, the 5th of March last, the night on which the robbery of the Excise Office was committed, Mr. Brodie was otherwise employed the whole of that afternoon and evening, which, if established, excluded the possibility of his being concerned in that robbery.]
Matthew Sheriff
1. Matthew Sheriff, upholsterer in Edinburgh, called.
The Lord Advocate—My Lords, this gentleman is the brother-in-law of the prisoner, and therefore is certainly a very improper witness. I am at all times very averse to object to a witness adduced for a pannel, but I thought it my duty to mention the fact to your Lordships, and to leave it with you to determine whether or not this gentleman’s evidence ought to be received.
Mr. Wight, for William Brodie—My Lords, this is the first time I have ever heard that a brother-in-law is not a competent witness in a criminal trial. This gentleman being brother-in-law to the pannel, is a circumstance which may, and which perhaps ought, to be attended to, as affecting his credibility, if his testimony stands contradicted by other proofs; but it is surely no objection to his admissibility.
The Lord Justice-clerk—What do you mean to prove by this witness?
Mr. Wight—My Lord, I mean to prove that he was in company with the prisoner until about eight o’clock of that night on which the robbery is said to have been committed.
The Lord Justice-clerk—You may call him in. The circumstance of his being brother-in-law to the pannel will no doubt go a great length to discredit his testimony, in so far as it may be contradictory of other evidence; but this will fall to be considered by the jury when they come to judge of the proof brought by both parties.
[The witness was then called in and sworn.]
Witness—I know that the prisoner left Edinburgh in March last, and I think it was on the 9th of March, the Sunday after the Excise Office was broke into. I dined with him in his own house on the Wednesday preceding—the 5th of March. I think I went there to dinner about a quarter before three
Charles Hay (afterwards Lord Newton). (After Kay.)
Charles Hay (afterwards Lord Newton).
(After Kay.)
o’clock.[17] Mr. Brodie was then at home. I was in his house from dinner until within a few minutes of eight o’clock at night. There was present at dinner in company a stranger gentleman whose name I do not know, the prisoner’s two sisters, and an old lady, his aunt. We drank together from dinner to tea, which I think was brought in about six o’clock, and then the stranger gentleman went away. We sat in the same room all the while I was there. Mr. Brodie was dressed in lightish-coloured or grey clothes. Before I came away, Mr. Brodie pressed me to stay supper with him, but I declined his invitation, saying I was engaged. When I came away, I left Mr. Brodie in his own house. I went directly from his house to my own house in Bunker’s Hill.[18] Mr. Brodie dined with me next day (Thursday), and remained with me in my house from three o’clock until eleven o’clock at night.[19]
Cross-examined by the Lord Advocate—What was the gentleman’s name who was in company with you?
Witness—I do not know; I do not remember his name.
The Lord Advocate—Did you hear his name mentioned?
Witness—I may perhaps have heard him named while at table with him, but as he went away early in the evening, and as I had no reason at the time to pay any particular attention to his name, it has escaped me.
The Lord Advocate—When did you sit down to dinner?
Witness—We sat down to dinner about three o’clock.
The Lord Advocate—Are you sure Mr. Brodie did not leave the room from dinner until you parted with him?
Witness—I am certain Mr. Brodie did not leave the room.
The Lord Advocate—Did you, on your way home, hear any clock strike or bell ring? or how do you know that it was precisely a few minutes from eight o’clock when you left Mr. Brodie?
Witness—I do not remember to have heard any clock strike or bell ring on my way home, but I had a clock in my house and a watch in my pocket. I am sure that I reached my own house within a few minutes of eight, either before or after it, and I had occasion to remark the hour from Mr. Brodie being so immediately afterwards accused of having that night broke into the Excise Office, a thing which I did not then, and which I do not yet, believe.
Jean Watt
2. Jean Watt, residenter in Libberton’s Wynd, called in and sworn.
The Lord Advocate—I wish to know from this woman whether or not she is married. (To witness)—Are you married?[20]
Witness—No; I am not married.
[The examination was then allowed to proceed.]
I am well acquainted with the prisoner, William Brodie. I remember that on Wednesday, the 5th of March last, Mr. Brodie came to my house just at the time the eight o’clock bell was ringing, and he remained in it all night, and was not out from the time he came in until a little before nine o’clock next morning. We went early to bed, about ten o’clock, as Mr. Brodie complained that night of being much indisposed with a sore throat.
Cross-examined by the Lord Advocate—How do you recollect that it was Wednesday night more than any other night of that week?
Witness—On the following Monday I heard that Mr. Brodie was suspected of being concerned in the breaking into the Excise Office; that his house had been searched for him; and that he had gone away on the Sunday. This made me particularly recollect, and also because it was the last night Mr. Brodie slept in my house. He slept with me that night. I have a family of children to him. I saw him again on the Saturday night afterwards, but not till then; and he was in my house in the forenoon of the Tuesday preceding.
Peggy Giles
3. Peggy Giles, servant to Mr. Graham, publican at Mutton-hole, near Edinburgh, called in and sworn.
Witness—I was servant to Mrs. Watt, the preceding witness, last winter, and I remember that the prisoner, Mr. Brodie, came to my mistress’s house about eight o’clock at night of Wednesday, the 5th of March last, and that he slept there all night, and remained until about nine o’clock next morning. My mistress and Mr. Brodie supped together early, about half-an-hour after eight o’clock, on bread and beer and a piece of cheese, for which I was sent out soon after Mr. Brodie came in. I was out about ten minutes, and when I returned Mr. Brodie was still in the house. I remember when he came in to have heard the eight o’clock bell ringing.
Gentleman of the Jury—Was it the Magdalen Chapel bell you heard ringing? or what bell was it?
Witness—It was the Tron Church bell.
Cross-examined by the Lord Advocate—Are you sure of that?
Witness—I am very sure.
Mr. Wight—Pray, where does the Tron Church stand?
Witness--In the Parliament Close.[21]
The Lord Advocate—How do you know that Mr. Brodie slept all night in your mistress’s house?
Witness—He was in bed when I arose in the morning, and I gave him water to wash his hands before he went out.
The Lord Advocate—Did you see Brodie in your mistress’s house at any other time during that week?
Witness—He came back in the forenoon and again in the afternoon of the same day, that is of Thursday,[22] and likewise on the Saturday night following. Mr. Brodie was in use to sleep frequently at my mistress’s house.
Helen Alison
4. Helen Alison or Wallace, spouse to William Wallace, mason, in Libberton’s Wynd, called in and sworn.
Witness—I reside in Libberton’s Wynd, and I know the prisoner, Mr. Brodie. I heard of his leaving Edinburgh in March last, and I remember to have seen him come down Jean Watt’s stair a little before nine o’clock on the morning of the Thursday before he went off—the 6th of March. I was then standing at my own door at the foot of the stair; and I had Francis Brodie, the prisoner’s son, a boy of about seven years of age, by the hand. As his father, Mr. Brodie, passed he put a halfpenny into the child’s hand, and clapped him on the head. I said to the boy, “Poor thing, thou hast been too soon out, or you would have seen your daddie at home”; he said, “No, I have not been too soon out, for my daddie has been in the house all night.” After my husband got his breakfast, I went upstairs to Mrs. Watt, and I said to her in a joking way, “You will be in good humour to-day, as the good man has been with you all night.” She answered, “He has; but, poor man, he has not been well of a sore throat.” On the Monday following, I heard that there were messengers upstairs in Mrs. Watt’s, searching her house for Mr. Brodie; and when I went up and was told what was the matter, I said to one Murray, a sheriff-officer, then present, “Dear sirs, who would have thought this would have happened, when I saw Mr. Brodie come downstairs and give a bawbee to his own son on Thursday last?” To which the man answered, “Indeed, few would have thought it.”
Cross-examined by the Lord Advocate—How do you recollect that it was upon the Thursday you saw Mr. Brodie come down stairs? Can you give any reason for doing so?
Witness—Indeed, I can give a reason, but to be sure it is a very mean one to mention to your Lordships.
Lord Eskgrove—Tell us the reason, good woman.
Witness—I had purchased three pair of shoes on the Wednesday in the market; that is, a pair for each of my sons, and one for my husband. On Thursday morning I missed my husband’s shoes, and, thinking they were stolen, I was waiting for my husband at the door at the time he usually returned to breakfast, which was about nine o’clock, to see if he knew anything of them; and had it not been for this I would not have been at the door nor seen Mr. Brodie come downstairs.
James Murray
5. James Murray, sheriff-officer in Edinburgh, called in and sworn.
Examined by Mr. Wight—Do you remember having searched the house of Jean Watt, at the foot of Libberton’s Wynd, in the course of your pursuit after Mr. Brodie?
Witness—I do.
Mr. Wight—What day was that upon?
Witness—It was upon the Tuesday after he left Edinburgh I searched the house—the 11th of March; but finding nothing in it, I ordered Mrs. Watt to come up to the Sheriff, and I waited until she got ready.
Mr. Wight—Did you see any person in the house, except Mrs. Watt and her servant? and had you any conversation with her?
Witness—I saw Mrs. Wallace, who lives at the foot of the wynd, whom I saw among the witnesses just now, and she said, “Oh, Jean! who would have thought on Thursday morning, when Mr. Brodie came down this stair and clapped his son’s head, and put a halfpenny in his hand, that such a thing as this would be soon after here?” To which I answered, “Indeed, Mrs. Wallace, I dare say none would have thought it.”
James Laing
6. James Laing, writer in the Council Chamber, Edinburgh, called in and sworn.
Examined by Mr. Hay—Do you remember of any process being brought before the magistrates against Mr. Brodie some time before he left this place, for using false or loaded dice?
Witness—I do.
Mr. Hay—At whose instance was the process?
Witness—At the instance of one Hamilton, a chimney-sweep in Portsburgh.
Mr. Hay—When was this process?
Witness—I do not exactly remember; but steps have been taken in it within these six months.
Lord Eskgrove—I suppose this Mr. Hamilton is not a common sweep, but a master who keeps men and boys for the purpose?
Witness—He is a master, as your Lordship observes.
Cross-examined by the Lord Advocate—Do you know Mr. Brodie to be a gambler?
Witness—I never gambled with him.
Robert Smith
7. Robert Smith, wright in Edinburgh, sometime foreman to Mr. Brodie, called in and sworn.
Examined by Mr. Hay—Do you know that a spring-saw is a proper instrument for cutting off the natural spurs of game-cocks, in order to adopt artificial ones?
Witness—I do.
Mr. Hay—Did you ever see Mr. Brodie using a small spring-saw for that purpose?
Witness—Frequently.
Mr. Hay—Is a spring-saw a usual and necessary implement for all wrights and joiners, as well as smiths?
Witness—I have one myself, which I use for cutting off brass knobs and several other purposes.
Mr. Hay—Are old keys and pick-locks usual and necessary implements for wrights and smiths?
Witness—They are.
Mr. Hay—Do you know that a box of old keys was always lying open in the corner of Mr. Brodie’s workshop, to which you and the other men had access?
Witness—There was; and when a key of any of our customers was either broke or spoiled, we could often fit the lock from some of these keys.
[Here the witness was shown the keys libelled on.]
Witness—I never remember to have seen any keys of that kind before.
[Here it was proposed to show the witness a pick-lock, and to ask him whether or not joiners or cabinetmakers kept such an instrument, when the Lord Advocate admitted that it was not uncommon for a cabinetmaker to keep such articles as the above. There were several witnesses cited by Mr. Brodie to prove this fact.]
The exculpatory proof being closed a few minutes after one o’clock of the morning of the 28th day of August, the Lord Advocate then proceeded to address the jury.
The Lord Advocate’s Address to the Jury.
Lord Advocate
The Lord Advocate—Gentlemen of the jury, it is now my duty to offer some observations on the import of the evidence which has been led before you, and as you have already had a very long and fatiguing sederunt, I shall endeavour to state what occurs to me in as few words as possible. It is with the greatest concern that I address you in this case—a case that is attended with circumstances which must occasion to all of us the most painful sensations; but public justice requires that these feelings should be repressed.
Gentlemen, the crime with which these prisoners stand charged is of a most dangerous and heinous nature. It is a crime which, until of late, was but little known in this country, though now it seems to be every day growing more frequent, and the practice of it is almost reduced into a system. It is no longer than fourteen days ago that two men received their sentence at that bar for a crime of the same nature with this—the robbery of the Bank of Dundee—which appeared to have been conducted and perpetrated by an association in that town, similar to the association which took place, in the heart of this populous city, between the prisoners at the bar and the other two men whom you saw this day give evidence against them; and which, had it not been discovered, threatened the inhabitants of this city with the most dangerous consequences. That now charged against these prisoners, though of the most flagrant nature, is but one of many in which there is good ground to believe that this association has been concerned. And it is your province, gentlemen, if upon careful examination of the evidence you think these men guilty, to do that justice to your country which the public safety requires, by returning a verdict against them.
It is perhaps of no consequence to inquire into what was the former situation of the prisoners, because that is a circumstance which can have no weight with you in determining what verdict you are this night to return.
As for George Smith, he is a stranger in this country, of whom we know nothing more than what he has been pleased to inform us in his different declarations, of which a part has not been read for the reasons you heard mentioned; but from thence you will be led to conjecture that the parts which were not read contained very little to his advantage. This man, gentlemen, had the appearance of following a lawful employment and carrying on trade in a shop in this city; but I am afraid there is too good reason to conclude that the character of a grocer, which he assumed, was only meant as a cover to him that he might escape the observation of the public while he was pursuing objects of a very different nature. His counsel have attempted no defence, such as the alibi endeavoured to be proved by the other prisoner; no witnesses have been examined in his exculpation; and his different declarations, which though not legal evidence by themselves, yet when corroborated by the great variety of other evidence led this day, are so full and complete proofs of his guilt that I do not consider it necessary to add one word more as to him.
The other prisoner, Mr. Brodie, is in a different situation. He is known to us all; educated as a gentleman; bred to a respectable business; and removed from suspicion, as well from his supposed circumstances as from the rank he held amongst his fellow-citizens. He was far above the reach of want, and, consequently, of temptation; he had a lawful employment, which might have enabled him to hold his station in society with respectability and credit; he has been more than once officially at the head of his profession, and was a member of the City Council. If, therefore, he, too, is guilty, his situation, in place of alleviating his guilt, is a high aggravation of it. If he indeed prevailed upon himself to descend to the commission of the most detestable crimes, what excuse can be made for him? That he frequented bad company; that he had abandoned himself to gambling, and every species of dissipation; that he has by these means run himself into difficulties, is surely no apology for him.
But, gentlemen, I am not entitled to proceed without substantiating the crime libelled against him. I will go on to state the evidence; and if after a cool and dispassionate consideration, which you are bound to give, and which from the very great attention you have already bestowed, I can have no doubt you will give it; if you are not most thoroughly convinced in your minds that the prisoner is guilty, I do not desire that you should return a verdict against him. I can have no wish that is contrary to material justice.
It is totally unnecessary to go over the evidence tending to show that the Excise Office was actually robbed in the manner mentioned in the indictment, as I suppose that is a fact which will not be disputed, I will therefore recapitulate the heads of the evidence, so far as it appears to me to verify the charge.
Gentlemen, you have heard various objections stated by the prisoners’ counsel against the admissibility of the evidence of Brown and Ainslie, and therefore I will in the first place call your attention to the other evidence, against which no objection has or can be made, and which is, in my opinion, sufficient in itself to establish the guilt of the pannels; and I shall afterwards speak to the evidence of these two men.
The first circumstance which you have in evidence, and to which I call your attention, is the intimate connection between the prisoner Brodie and the other three, Smith, Ainslie, and Brown, who have all confessed themselves guilty of the crime charged; it is admitted by himself in his letters and declaration, and is confirmed by the evidence of Smith’s maid, who said that she had seen them often together in her master’s house; his being often in company with them, gambling with them in different houses, and particularly in Clark’s, a house which, from what we have heard of it this day, ought for the good of society to be razed to the ground or built up, as houses infected by the plague are in times of pestilence.
In the second place, gentlemen, the prisoner was in company with these men on the very night in which the robbery was committed. This is proved by the testimony of Smith’s maid, Grahame Campbell, a witness who it is not pretended had any temptation to perjure herself. She tells you that Brodie came to her master’s house that day in the dusk of the evening; that they were in the upper room all together, and had some cold fowl and herrings; that Brodie was then dressed in an old-fashioned black coat; that she mentioned this circumstance to her mistress; that he went out with Smith, Brown, and Ainslie; and that when he came back later in the evening, he had then changed his dress and had on light-coloured clothes. These are all circumstances highly suspicious, and they would have been likewise sworn to by Smith’s wife, if she had been allowed to be examined; but that is unnecessary, as the facts the witness has deponed to are all probable in themselves, and they are corroborated, to the extent I have mentioned, by the other evidence, and also by Smith’s declarations, which last I do not mean to found upon as evidence against Mr. Brodie, but it is a curious fact.
In the third place, gentlemen, you will observe that the Excise Office was robbed upon Wednesday, the 5th of March. On the Friday night following, information was given to the Procurator-Fiscal by Brown; on the Saturday, Smith and Ainslie were apprehended and committed to prison. And what happens? Brodie goes to the prison to visit them, but is denied access. Is it possible to suppose that a gentleman in Mr. Brodie’s situation would have done this had he been innocent? No, gentlemen, it is not to be supposed.
But attend to what follows. Early the next morning, Brodie sends for Robert Smith, his foreman, and asks him if he had heard any news concerning them; he tells Brodie that Smith, the pannel, and Ainslie were in prison, and so forth, and adds that he hoped his master was not concerned with them. Gentlemen, he knew that Smith and Ainslie were Mr. Brodie’s companions; and you cannot conceive that he would have presumed to put such a question to his master if he had not been convinced in his own mind of his master’s guilt. Mr. Brodie makes no answer to this question. Will it be said that a man conscious of his own innocence would have remained silent upon such an occasion? Gentlemen, I appeal to yourselves; how would any one of you have felt, or what answer would you have returned to a servant who dared put such a question to you?
Brodie at this time tells Smith that he is going out of town for a few days; but you have it in evidence that he left this country, and fled to Flushing. In order to account for this flight you are told a story of a prosecution against him, at the instance of a chimney-sweep, for using false or loaded dice. This is a very strange circumstance to bring in exculpation. I have no hesitation to say that it is the most ignominious defence I ever remember to have heard maintained by a prisoner at that bar; but you cannot believe that that prosecution was the occasion of his flight. He was in no greater danger from it then than he had been in for months before; no step had been taken in that process which could alarm him at this critical time; and it is mere mockery, it is altogether a joke, to pretend that from such a circumstance the prisoner at the bar could have taken up the resolution of banishing himself from his country for ever.
Besides, Mr. Brodie, in his declaration before the Sheriff, did not assign this as the cause of his flight. He said that, as he was intimate with Smith and Ainslie, he was afraid they would accuse him of being concerned with them in robbing the Excise Office. He did not so much as mention the defence now set up for him; but his counsel saw that it would be necessary to account for his conduct in some shape or other, and no other appearance of defence occurred but this process. It is impossible to believe this story; and indeed it is impossible to assign any cause for Mr. Brodie’s conduct consistent with his innocence of the crime charged against him.
I would, in the next place, gentlemen, have you to attend to the prisoner’s behaviour when he flies from this place to London. He secretes himself in London for several weeks; search is made for him, but he cannot be found; he admits in one of his letters that he knew that Mr. Williamson was in search of him, but he did not choose an interview; a vessel is freighted for him by some persons, contrary to the duty they owed to their country; she is cleared out for Leith; he goes on board of her in the middle of the night, with a wig on, in disguise, and under a borrowed name; he is carried to Flushing; he changes his name to John Dixon, and writes letters to people in Edinburgh under that false signature, explaining his whole future operations, in consequence of which letters he is traced and apprehended, just when he is on the point of going on board of a ship for New York. If he had been innocent; if he had had nothing else to fear than the story of the loaded dice, it is not possible that he could have conducted himself in this manner.
The letters he writes to Geddes are likewise very strong circumstances; but the other letters, or scrolls, found in his trunk are still stronger. You have had it clearly proven that all these letters are of his own handwriting, and in both of the scrolls he expressly acknowledges the crime for which he now stands at the bar. In one of them he says that he had no “direct” concern in any of the late depredations of Smith, Brown, and Ainslie, excepting “the last fatal one”; in the other the word “direct” is scored out, but in both of them he acknowledges his accession to the last act; by which he can mean no other than the robbery of the Excise Office; for it happened on the Wednesday evening, and Brown gave information of it on the Friday evening immediately after. It was, therefore, in all probability the last of the depredations of this dangerous combination; and Mr. Brodie’s having applied the expression “fatal” to it identifies it beyond all doubt.
Gentlemen, I beg leave now to bring under your consideration what happened in this city after Mr. Brodie absconded. You have it in evidence that his house was searched, and various articles of a very suspicious nature found. A pair of pistols, identified to have been used on the occasion of the robbery, is found under the earth, and the place where they were hid pointed out by the other prisoner Smith; also a dark lanthorn, the one half of it in one place and the other half of it in another. Gentlemen, if Mr. Brodie is really innocent, it appears to me passing strange that these articles should have been so concealed.
All these circumstances, gentlemen, are established by the most unexceptionable evidence; they are connected with and corroborated by each other; and they all point to this conclusion, independent altogether of the direct evidence of Brown and Ainslie, that Mr. Brodie is guilty of the crime charged. They cannot be accounted for upon any other supposition.
In the opposite scale, gentlemen, you have the proof of alibi attempted by the prisoner, which is exceedingly defective and inconclusive. Alibi is a defence seldom resorted to but in the most desperate circumstances, and little regard is in general paid to it, for this good reason that it resolves into an immediate falsification of the whole evidence brought in support of the charge. It is suspicious at all times, but it is peculiarly so when the alibi is confined to the same town in which the crime was committed, within a few minutes’ walk of the place, and is deponed to by witnesses at a great distance of time.
The first witness, gentlemen, brought by the prisoner to establish this defence is Matthew Sheriff, his own brother-in-law, by no means an unexceptionable witness. This gentleman depones that he dined with Mr. Brodie on Wednesday, the 5th of March, and that he was in company with him until eight o’clock that night. He is brought forward singly to prove a fact, which, if true, Mr. Brodie could be at no loss to establish by other unexceptionable evidence. There was another gentleman, he tells you, who dined in company with the pannel that day; and what appears to me to be a very odd circumstance, this gentleman is not called as a witness; nay, more, although Mr. Sheriff recollects a great variety of other circumstances, he does not remember this gentleman’s name. Why is this gentleman not brought forward on this occasion? Why are not some of the servants of the house, or any other person, called to support Mr. Sheriff’s testimony? Mr. Sheriff, then, is only a single witness, and from his near connection with the pannel, he gives his evidence under circumstances that are suspicious, and therefore no weight can be allowed to it.
But even supposing Mr, Sheriff’s testimony to be true, it is by no means inconsistent with the guilt of the prisoner, nor affects the credibility of the prosecutor’s evidence. Grahame Campbell depones that Brodie did not come to Smith’s house until about eight o’clock; and allowing him to have remained with Mr. Sheriff until near eight, the expedition against the Excise Office was not then begun; and you will recollect that Brodie was the last who made his appearance at Smith’s, and that he was expected by his associates a considerable time before he arrived.
Jean Watt is the next witness adduced by the prisoner, who, by her own evidence, appears to be a woman of an abandoned character. She has a family to Mr. Brodie, and was denominated by him, in one of his letters, by the appellation of “a devil.” This witness and her maid no doubt concur most minutely in a very extraordinary fact, which, if it can be believed, amounts to a falsification of the whole other evidence, viz., that Mr. Brodie came to Watt’s house just at eight o’clock, as the bell was ringing, and did not leave her house again till nine o’clock next morning. No doubt she swears pointedly to the night, and so does her servant; but although these two witnesses agree in the day, the hour, and even the minute of Mr. Brodie’s coming to Watt’s house on the 5th of March, yet, when they came to be cross-examined, they did not even agree in days; for Jean Watt said that she did not see Brodie from the Thursday morning, at nine o’clock, till the Saturday afternoon following, yet her maid said that he was twice in the house on the Thursday, both in the forenoon and afternoon; though Sheriff said that Brodie was in his house on the Thursday from three o’clock in the afternoon till eleven o’clock at night. They can give no reason for fixing the night of his visit at Watt’s house to be Wednesday night, except the subsequent flight of the prisoner; and therefore it may have been any other night in that week as well as the one condescended upon.
But, gentlemen, I have no occasion to dispute, and indeed, from the evidence of Helen Alison, I am inclined to believe that the prisoner went on the Wednesday night to Mrs. Watt’s house, and slept there that night; but I have heard nothing, allowing all the witnesses to have spoken what they believed to be true, that goes to prove that he went there until after the crime was committed. Gentlemen, the circumstance which fixes the hour in the memory of both Mrs. Watt and her servant is the ringing of a bell, and we all know that there is a bell that rings at ten o’clock as well as at eight. And it is very far from being improbable that they might both mistake the one bell for the other, either at the time, or afterwards, upon endeavouring to recollect the hour at which Brodie came to them.
Allowing, therefore, gentlemen, that all the witnesses adduced by the prisoner are to be believed, there appears to be nothing in their testimony contradictory to the evidence of the prisoner’s accession to the crime charged; and therefore I can have no doubt that, although the matter rested upon the evidence I have already stated, you could have no hesitation in pronouncing both the prisoners guilty.
But, gentlemen, when, in addition to that evidence, you take into your consideration the testimony of Ainslie and Brown, the two associates of the pannels, if any doubt did remain, it would necessarily be removed. The counsel for the prisoners, aware of this, have objected to the admissibility of both of them.
I admit that the credibility of these witnesses is liable to suspicion, and that if the proof rested upon their evidence alone, I would not call upon you to find the prisoners guilty upon it, but in so far as their evidence is corroborated by the general tenor of the other unexceptionable parts of the proof they are entitled to credit.
To Ainslie it has been objected that a corrupt bargain was made with him by the Sheriff, which, in other words, amounts to this, that he must be a false witness. If the prisoners’ counsel were serious in stating this objection, they ought certainly to have proved it; but, gentlemen, it proceeded entirely upon a mistake in point of fact—upon a supposition that Ainslie had not spoke out until Brodie was apprehended. Gentlemen, I hold Ainslie’s declaration in my hand, and which I offered to read, and which I would now read, if the forms of the Court would allow me, emitted a short while after the robbery was committed, and containing a full and complete disclosure of the whole transaction. But, gentlemen, you will not, you cannot, suspect that there was any such bargain; that there was anything in the present case out of the common course.
A similar objection was made by the counsel for the prisoner to the evidence of Brown, with this addition, that he had been convicted of felony at the Old Bailey. The last part of this objection, gentlemen, is completely answered by the pardon which, by the law of England, where that sentence was pronounced, completely rehabilitated him. Brown is then in even a more favourable situation than Ainslie, for, as he never was charged with the crime for which the prisoners are tried, nor any intention taken up to prosecute him for it, he had even less temptation than Ainslie to swear falsely.
There is therefore nothing in the objections stated to these witnesses, and accordingly the Court have found so. These men, gentlemen, have told you that Brodie was with them when the breaking into the Excise Office was originally planned that he met them at Smith’s house on the night when the robbery was committed, in which particular their evidence is corroborated by the testimony of Grahame Campbell; that he was with them at the commission of the crime, which is the time when he endeavours to prove an alibi; that some of the pistols carried to the Excise Office belonged to him, which pistols were afterwards found in his possession. They have likewise informed you that it was agreed upon that Brodie should be stationed within the door and Ainslie without, and this exactly corresponds with the testimony of James Bonar.
Brown and Ainslie are so consistent with each other and with the whole other evidence adduced, both real and circumstantial, that I am unable to discover a single discrepancy in the whole, excepting where Brown and Ainslie say that, after the robbery, they did not either of them see Brodie again that evening, but Smith’s maid said that they all met again in Smith’s house and supped there, and that Brodie supped along with them. This, however, does not appear to be a fact of any importance or that tends to discredit either of the witnesses, as it is evident that Smith’s maid has confounded the first and second meetings together.
But it is unnecessary for me to enlarge upon particulars which cannot have escaped your own observation, and I shall therefore conclude with remarking that you have in this case more direct evidence of the pannels’ guilt, corroborated by a greater variety of circumstances all coinciding in a most remarkable manner, than I remember to have met with in any other which has occurred to me in the course of my practice.
Gentlemen, I shall only further add that if the prisoner William Brodie, a person who from the nature of his employment had frequent opportunities of being introduced into the houses of others, has been guilty of the crime laid to his charge, and is allowed to escape punishment, the consequences to the inhabitants of this populous city may be of the most serious nature. But, gentlemen, the evidence is before you, and if, upon a fair and deliberate consideration of it, you are convinced of the pannels’ guilt, I can have no doubt that you will do justice to your country by returning a verdict accordingly.
Mr. John Clerk then rose to address the jury on behalf of George Smith.
Mr. John Clerk’s Address to the Jury.
John Clerk
Mr. Clerk—Gentlemen of the jury, it is now my duty to state the evidence to you for the pannel, Mr. Smith, and I shall trouble you with a very few observations only.
My unfortunate client is a very poor man; and although he was in a situation, before he was apprehended on suspicion of this crime, to support himself and his family upon the produce of his industry in his trade as a grocer, he has, in consequence of this unlucky affair, been reduced to absolute beggary, so that he has not been able to make those extraordinary exertions either in procuring evidence or counsel, which the more opulent prisoner has done. He is an Englishman, a stranger in this country, and in great straits for his life, and whatever is favourable in his character or conduct is unknown; while, on the other hand, everything that tended to blacken his character and fix guilt upon him has been brought forward. He has no one to say a good word for him, as that great villain, John Brown alias Humphry Moore, has, who, you will remember, was so highly complimented by their Lordships when he left that box. But, I, as his most inexperienced and imperfect counsel, will try and do the best I can for the poor man.
The Lord Justice-Clerk—Be short and concise, sir, at this time of the morning.
Mr. Clerk—Pray, your Lordship, let me proceed.
The Lord Justice-Clerk—Well then, proceed, young man.
Mr. Clerk—It is easy to account from this cause, gentlemen, for what my Lord Advocate observed concerning the obscurity of my client’s history before the robbery of the Excise Office; and I imagine that no argument against him can be drawn from it. I know that I speak to a jury who will lay nothing into the scale against him that does not arise from the evidence which has been adduced.
My Lord Advocate has told you, gentlemen, that the guilt of my unfortunate client is so clear as to admit of no doubt, and it is in consequence of that opinion, I suppose, that his Lordship has made so few observations upon it. I cannot, however, yield my assent to this proposition; and I shall endeavour to show you, on the contrary, gentlemen, from a statement of such parts of the proof as affect my client, that the fair and legal evidence against him is incomplete and will not warrant a verdict for the Crown.
The evidence may be reduced to three distinct branches—his own declarations, which have been read; the direct evidence of the witnesses adduced for the prosecutor to the commission of the crime; and the real evidence of circumstances.
With regard to the declarations, the Lord Advocate has told
John Clerk (afterwards Lord Eldin). (After Kay.)
John Clerk (afterwards Lord Eldin).
(After Kay.)
you, gentlemen, that they contain a variety of particulars which have not been read, and have been omitted by the consent of the pannel; and from this, his Lordship observed, an inference might be drawn that the declarations contain many more particulars little to the credit of the pannel. Gentlemen, an inference more candid, or at least more charitable, might, in my opinion, be deduced from the circumstance. It is easy to conceive the state of mind in which the pannel must have been when apprehended. Connected with those infamous men who were supposed to have committed the crime, a partner in their most dissolute scenes, no wonder, gentlemen, that he was struck with terror when seized upon an accusation of being joined in their guilt.
After having resisted for some time the impressions arising from his confinement, his panic most naturally increased almost to a delirium; a fit of temporary frenzy, an insanity, seized him, and he accused himself of an atrocious crime as the only means of safety. But this accusation is rejected by his cooler judgment, and accordingly he pleaded not guilty at this bar. In accusing himself in such a manner, the greater variety of crimes he laid to his own charge, the greater is the improbability of their being true, for it was folly to balance the merit of confessing a crime eagerly inquired after by the guilt of other crimes which were out of head. And it was folly of such a sort as to prove that the pannel was incapable of rational conduct; and thus the credit of his declaration, in so far as it injured himself, is in charitable reasoning considerably diminished.
But, at all events, gentlemen, it is sufficiently known and acknowledged, and it was even admitted—at least, it was not denied by the Lord Advocate himself—that the extrajudicial declaration of a pannel is not legal evidence against him. It is undoubtedly a circumstance in evidence, but not of weight to convict unless it be adminicled by other proof. This will be admitted, on all hands, to be the law of Scotland, and I shall make no comment on it.
If, therefore, it is shown to your satisfaction that the parole and circumstantiate evidence is either contradictory, inconsistent, or incredible, you will lay very little stress on the extrajudicial confessions of the prisoner.
And this leads me to the second branch of the evidence, or the attempt at a direct proof of the accession of the pannel, Smith, to the crime charged.
The first witness after those to the declarations, whose deposition affects the pannel Smith, is M‘Lean, Mr. Drysdale’s waiter. He is the nineteenth witness. I need not enter into the particulars of his evidence, since all of you must recollect that he could say nothing more than that Smith bought a ticket in the mail-coach for his wife; gave him in payment a five-pound bank-note, battered on the back, and received the change. It does not appear from whence the pannel had the note which he gave to M‘Lean, nor whether it was among the money which was stolen from the Excise Office or not.
John Clerk, Mr. Drysdale’s cashier, the twentieth witness, could not even say so much as M‘Lean. It does not appear from either of these depositions whether the paper on the table was that which was presented to them or not, as the Court determined that it is not properly described in the indictment, and on that account it cannot be used in evidence against the pannel.
I may therefore leave these witnesses, gentlemen; and I am persuaded that none of you will think that they said anything which militates against my client in the smallest degree.
Grahame Campbell, the seventeenth witness, was examined as to a variety of particulars, but her whole deposition, in so far as it regards the pannel Smith, amounts to no more than that he was in company with Brodie, Ainslie, and Brown that evening on which the Excise Office was broken into; that they supped together, ate herrings or a fowl, whilst she was in a back cellar; and upon her coming out of this back cellar the company had left the house, and Smith, her master, had likewise gone out; but there is no evidence of their having gone out together, and although they had, it does not follow that they went to the Excise Office together.
It would be very hard if a man should be suspected of a robbery merely because he leaves his house about the time that the robbery is committed, and in this case—there is little more; for it was by no means extraordinary that Brown and Ainslie should be with Mr. Brodie in Mr. Smith’s house that night, as they were there every night, always playing at cards and dice, and amusing themselves in company together.
And further, gentlemen, although they had not been drawn together by constant habits and the love of similar amusements, a good reason was given why Brown and Ainslie were constantly at the house of Smith. You were informed that these two men dined and supped there every day, that is, were day boarders in his house.
Putting all this together, I may dismiss this witness with the same observation which I applied to the former ones. As far as I understand her evidence, she said nothing which has a tendency to criminate my client.
I come next to the testimony of Ainslie and Brown. Gentlemen, you have heard a variety of objections stated to the admissibility of their evidence—all of which has been over-ruled by the Court. But notwithstanding the judgment of their Lordships, I must adhere to these objections and maintain that they ought not to have been admitted as witnesses. Gentlemen, I think a great deal of most improper evidence has been received in this case for the Crown.
The Lord Justice-Clerk—Do you say that, sir, after the judgment which the Court has pronounced? That, sir, is a most improper observation to address at the outset to the jury.
Lord Stonefield—It is a positive reflection on the Court.
Lord Hailes—It is a flat accusation that we have admitted improper evidence.
Lord Eskgrove—I never heard the like of this from any young counsel at the beginning of his career at this bar.
The Lord Justice-Clerk—With these admonitions, go on, sir; proceed, sir.
Mr. Clerk—Aweel, my Lords, if I go on, I beg to assail at the outset the evidence of these two corbies or infernal scoundrels, Ainslie and Brown.
The Lord Justice-Clerk—Take care, sir, what you say.
Mr. Clerk—Yes, my Lords, I say that they are both most infamous characters. Gentlemen, you should discard such vagabonds, and not rely on their evidence in any way; and if you knock out the vile brains of their evidence in this case, there is nothing else remaining on which you can convict my poor client, except his own very candid declarations which I have already explained to you. Gentlemen, these nefarious witnesses Ainslie and Brown, should have stood at this bar this night in place of my client, who was happy in his domestic privacy with his poor, honest, inoffending wife, whom you this day saw—and my heart bleeds for her. [Here there was some applause from the audience which was at once suppressed.] Gentlemen, Ainslie contradicts himself, and Brown is not to be believed. With respect to this said Mr. John Brown alias Humphry Moore, you had it out of his own mouth that he was a convicted felon in England, and I say to you that no convicted felon ought, by the good and glorious law of Scotland, to be received as a witness in this or any other case in the British dominions.
[Great applause from the audience.]
Macers—Silence in Court.
The Lord Justice-Clerk—Mr. Clerk, please restrict your reflections. The Court have admitted the witness.
Mr. Clerk—Yes, my Lords, I know that very well, but your Lordships should not have admitted him, and of that the jury will now judge.
The Lord Justice-Clerk—This is most indecent behaviour. You cannot be allowed to speak to the admissibility; to the credibility you may.
Lord Stonefield—This young man is again attacking the Court.
Mr. Clerk—No, my Lords, I am not attacking the Court; I am attacking that villain of a witness, who, I tell your Lordships, is not worth his value in hemp.
The Lord Justice-Clerk—The Court, sir, have already solemnly decided, as you know, on the objections raised by the Dean of Faculty, that in law the objections to these witnesses should be repelled, and they were repelled accordingly; therefore you should have nothing more to say to us on that point.
The Dean of Faculty—If it will satisfy Mr. Clerk, I can assure him that I will plead on this point to the jury, waiving all objections to the admissibility, which it may be rather irregular to plead after the decision of the Court.
The Lord Justice-Clerk—Dean of Faculty, I know you will attempt nothing that is improper.
Mr. Clerk—But, my Lords, the jury are to judge of the law as well as the facts.[23]
The Lord Justice-Clerk—Sir, I tell you that the jury have nothing to do with, the law, but to take it simpliciter from me.
Mr. Clerk—That I deny.
[Consternation in Court.]
Lord Hailes—Sir, will you deny the authority of this High Court?
Mr. Clerk—Gentlemen of the jury, notwithstanding of this interruption, I beg to tell you, with all confidence and all respect, that you are the judges of the law as well as the facts. You are the judges of the whole case.
The Lord Justice-Clerk—You are talking nonsense, sir.
Mr. Clerk—My Lord, you had better not snub me in this way. I never mean to speak nonsense.
The Lord Justice-Clerk—Proceed—gang on, sir.
Mr. Clerk—Gentlemen, I was telling you that this infernal witness was convicted of felony in England, and how dare he come here to be received as a witness in this case?
The Lord Advocate—He has, as I have shown you, received His Majesty’s free pardon.
Mr. Clerk—Yes, I see; but, gentlemen of the jury, I ask you, on your oaths, can His Majesty make a tainted scoundrel an honest man?
[Great applause in Court.]
The Lord Justice-Clerk—Macers, clear the Court if there is any more unruly din.
The Lord Advocate [interposing and addressing Mr. Clerk]—Sir, permit me to say, after this interruption, that the prerogative of mercy is the brightest jewel in His Majesty’s Crown.
Mr. Clerk—I hope His Majesty’s Crown will never be contaminated by any villains around it.
[Sensation in Court.]
The Lord Justice-Clerk [to the Lord Advocate]—Do you want his words noted down?
The Lord Advocate—Oh no, my Lord, not exactly yet. My young friend will soon cool in his effervescence for his client.
The Lord Justice-Clerk [to Mr. Clerk]—Go on, young man.
Mr. Clerk—Gentlemen of the jury, I was just saying to you, when this outbreak on the bench occurred, that you were the judges of the law and of the facts in this case.
The Lord Justice-Clerk—We cannot tolerate this, sir. It is an indignity to this High Court—a very gross indignity, deserving of the severest reprobation.
Mr. Clerk—My Lords, I know that your Lordships have determined this question; but the jury have not. They are judges both of fact and of the law, and are not bound by your Lordships’ determination, unless it agrees with their own opinion. Unless I am allowed to speak to the jury in this manner, I am determined not to speak a word more. I am willing to sit down if your Lordships command me. [Here Mr. Clerk sat down.]
The Lord Justice-Clerk—Go on, sir; go on to the length of your tether.
[Mr. Clerk then rose and resumed his address.]
Mr. Clerk—Yes, gentlemen, I stand up here as an independent Scottish advocate, and I tell you, a jury of my countrymen, that you are the judges of the law as well as of the facts.
The Lord Justice-Clerk—Beware of what you are about, sir.
[Here Mr. Clerk again sat down.]
The Lord Justice-Clerk—Are you done, sir, with your speech?
Mr. Clerk—No, my Lord, I am not.
The Lord Justice-Clerk—Then go on, sir, at your peril.
Lord Hailes—You had better go on, Mr. Clerk. Do go on.
Mr. Clerk—This has been too often repeated. I have met with no politeness from the Court. You have interrupted me, you have snubbed me rather too often, my Lord, in the line of my defence. I maintain that the jury are judges of the law as well as of the facts; and I am positively resolved that I will proceed no further unless I am allowed to speak in my own way.
The Lord Justice-Clerk—Then we must now call upon the Dean of Faculty to proceed with his address for the prisoner Brodie, which the Court will hear with the greatest attention. [Here the learned Dean shook his head, as if declining to do so.] Very well. The Court will proceed now and discharge its duty.
[His Lordship was then about to address the jury in his final charge.]
Mr. Clerk [starting to his feet and shaking his fist at the bench]—Hang my client if you daur, my Lord, without hearing me in his defence!
[These remarkable words produced the greatest sensation in Court; the judges retired to the robing-room to hold a consultation; but on their returning to Court, the Lord Justice-Clerk merely requested Mr. Clerk to proceed with his speech. Mr. Clerk then continued his address without further interruption.]
Mr. Clerk—I say, gentlemen, I adhere to all the objections stated on the proof, both to the admissibility and to the credibility of these witnesses.
On the other hand, it is obvious, that if they are to be listened to as good and unexceptionable witnesses, their evidence goes to prove the guilt of my client in the clearest and most unequivocal manner; so that the questions come to be, how far are they admissible at all? and how far are they credible? Is their evidence to be laid aside altogether? and if not, to what extent is it worthy of belief?
Gentlemen, before I was interrupted, I was going to observe, that in this branch of the evidence my cause is the same with that which is to be supported with so much greater abilities by the Dean of Faculty; and of consequence it would be unnecessary and even impertinent in me to take up your time in arguing at large upon the subject. I have followed the same conduct in the other particulars of the proof, where the pannels are in similar circumstances; and I have only to desire you to apply the same principles to both cases.
Gentlemen, I come now to the real evidence. Some of the witnesses deponed that Mr. Smith was taken up to Brodie’s buildings, and there some of the articles on the table were found, but nothing in this part of the evidence is inconsistent with the innocence of Smith, who might be better acquainted with Mr. Brodie’s shop and yard than the officers, without being a partner in the crimes of which he (Brodie) might be guilty.
The most material circumstance in the proof relates to the finding of the iron crow, the curling irons, and key, in the hole of a wall, and for that reason I reserve it for the last.
There are two capital defects in the evidence of this fact. First, a glaring contradiction concerning the place where the things were found; and, secondly, as glaring a contradiction in the account of what passed at finding them. Middleton says that they were found in Warriston’s Close; Murray, on the contrary, that they were found in Allan’s Close. Middleton told you expressly that the pannel put his hand into the hole in the wall and drew them out; but Murray said that this was impossible, because he had his hands tied behind him: and this witness farther added that he himself drew them out.
These are no common mistakes; and I ask, what reliance can be had on evidence where two such falsehoods appear within the narrow compass of a few questions? I am willing to grant that there are slight inaccuracies which rather tend to confirm the truth of a deposition than to render it suspected; but you cannot suppose errors like these concerning such marked and important circumstances, as make an impression on the memory equally indelible with any part of the story, and which in this instance constitute its leading features.
I say there must be a radical error here, either in the candour of the witnesses, or in the events which they have related. They are either perjured, or have been deceived, about the articles on your table; and in either case their testimony is good for nothing. It is plain that the iron crow was not found both in Warriston’s Close and in Allan’s Close; the prisoner was not both fettered and unfettered at the same time; and it matters not to me which of the witnesses has been deceived. Whoever it is, it cannot be determined on this trial that any of them spoke the truth; and of consequence the evidence of both must be laid out of consideration.
At all events, gentlemen, what have you more than two solitary witnesses to two contradictory facts, instead of two witnesses to one consistent event? This can never be reckoned good and legal evidence on a trial for life, where equity as well as expediency require the most scrupulous accuracy.
Gentlemen, I have now stated what appear to me to be the most material circumstances in the proof. I have commented on the depositions of the witnesses in so far as they may be thought to criminate my client; and without farther detaining you, I beg leave to conclude by repeating the proposition which I have endeavoured to maintain, that there has not been adduced on this trial sufficient legal evidence to warrant a verdict against Mr. Smith.
At three o’clock in the morning the Dean of Faculty rose to address the jury on behalf of William Brodie.
The Dean of Faculty’s Address to the Jury.
Dean of Faculty
The Dean of Faculty—Gentlemen of the jury, the present trial exhibits in the person of William Brodie, in whose behalf I now address you, a singular phenomenon in the moral world: a man descended of an ancient and honourable family, left by a respectable father in opulent circumstances, and very far from indigence and temptation; educated in the manners and habits of a gentleman; bred to a reputable occupation, at the head of which he has frequently stood; and in virtue of that situation been a member of the Town Council of this great city; who, for a long series of years, has maintained an irreproachable character in society, and has often filled offices of honour and trust among his fellow-citizens, the duties of which he has discharged with attention and fidelity, standing at the bar of this High Court, accused of having leagued himself with the meanest and most abandoned of mankind, in the commission of a crime not less marked with moral depravity on the part of the perpetrators, than fraught with injury and danger to the public.
God forbid, gentlemen, that I were capable of wishing to press on your minds these circumstances in my client’s once honourable and happy situation, with a view of creating in your minds an undue bias in his favour. Though your discernment were not, as I know it is, sufficient to secure you against the effect of such considerations, my feelings as a man, and a sense of my professional duty, would not allow me to resort to such arguments in opposition to justice, which is no respecter of persons.
Yet, gentlemen, there is a view in which I am entitled to call your attention to the former situation and circumstances of this unfortunate gentleman; for unfortunate I must call him, be the result of the present trial life or death. In deciding on evidence in support of a criminal charge, the former character of the prisoner, his probable temptations to commit the offence with which he is charged, must ever be a material consideration. A poor, forlorn wretch, without fortune, without friends, without education, without occupation, is he who is naturalised to support himself by private or open depredation on the public; and when such a person is accused, the minds of a jury, though they must presume his innocence, do not revolt at the charge as improbable. The situation of such men is charmingly described by an eloquent poet of this country—
The needy man who has known better days;
One whom distress has spited at the world;
Is he whom tempting fiends would pitch upon
To do such deeds, as make the prosperous men
Lift up their hands and wonder who could do them.[24]
My client was no such man. No circumstance in his situation has afforded a temptation to be guilty of such wrongs to risk his name, his life, for the acquisition of what his fortune, his profession, were fully adequate, honestly and fairly, to procure him.
In these circumstances you are called upon to examine the evidence in this case with the nicest accuracy. You are bound by more than common ties to require the fullest and most explicit proofs of such enormous guilt, so improbable, so unprecedented, before you find a verdict against a man who was once upon the same respectable footing with yourselves, and supposed to be governed by the same honourable principles.
But, gentlemen, while I mentioned the situation which Mr. Brodie once held in life, his family, his fortune, his friends, I must admit, however degrading to him the acknowledgment may be, that this unhappy man, instead of pursuing with industry the useful and reputable occupation by which his own fortune was acquired, and by which it might have been preserved, and with it his own peace, honour, and happiness, has for years past so far yielded himself to idleness and dissipation, and to what in the present age is too often the sad concomitant of such habits, an unhappy itch for gambling, as to lead him into the company of persons with whom, for any other purpose, he would have disdained to associate.
The unfortunate prisoner, Mr. Brodie, is by no means singular in his attachment to this vice; nor is it at all confined to the lower stations of life. People of the highest rank scruple not, in the course of their gambling, to mix with highwaymen and pickpockets, and to descend to practices of chicane and cunning which, in any other situation, they would themselves abhor. It was but the other day that a gentleman of Brighthelmstone, reputed worth three thousand pounds per annum, was detected in the very act of using loaded dice, and was obliged to fly the country for it; which is exactly Mr. Brodie’s situation.[25]
But the gaming table levels all distinctions. There the high and the low, the rich and the poor, meet together. There, I admit—indeed, I have thought it necessary to prove the fact, in order to account for so strange a connection, from the bare existence of which strong arguments of his guilt have this night been drawn—there, I say, I admit that this unhappy, this misguided man, learned to endure, and at last to court, the society of those abandoned, those profligate wretches, who have this day come forward, in the most suspicious circumstances, to swear him their accomplice in the felony charged in the indictment.
But though the prisoner at the bar acknowledges with contrition these habits of folly and dissipation, and the disgraceful connection in which, to that extent, it unhappily involved him, yet he trusts it will appear, from a full consideration of the evidence, that
The very head and front of his offending
Has this extent; no more.
And he trusts to the candour and justice of you, gentlemen of the jury, that you will not allow this unfortunate connection to go further in your mind, as an ingredient of proof, than it justly ought; and far less to let suspicions supply the want of that legal evidence which the law of this free and happy country requires, in order to affect the life of any of its citizens, however dangerous to society the crimes charged may be, and however interested the public may be that they should be convicted.
Gentlemen, with these general observations in view, I intreat you to attend to the proof on which a verdict is asked from you against the life of this unfortunate man.
The whole evidence before you consists of three parts. In the first place, the evidence of Brown and Ainslie, who have acknowledged themselves guilty of the crime in question, and are the sole witnesses brought forward directly to fix the guilt on the prisoner; in the second place, in opposition to this there stands the direct proof of alibi, established by a number of unexceptionable witnesses; and lastly, the evidence arising from the various circumstances which are said to support and confirm the direct testimony of Brown and Ainslie, which, independent of such confirmation, is admitted to be deserving of little credit. Upon each of these parts I shall submit to you some remarks, trusting that you, gentlemen, and the honourable counsel on the other side of the bar, will correct me should I happen in any instance to mistake the import or nature of that proof which has been led in your hearing.
Upon the first part I have already, in the course of the trial, anticipated almost everything which relates to the evidence of Brown and Ainslie; I should therefore be ashamed to trouble you with more on that subject. I do not say that their being themselves accused of the crime in question should be a ground for totally rejecting their testimony, which the Court, proceeding on the present law and practice of Scotland, has allowed to be received. But this I will with confidence maintain, that the evidence of persons who, in the very outset of their testimony, confess the most enormous crimes, and thereby cover themselves with infamy as completely in the eye of reason as if they were convicted by sentence of a jury, can in no case be entitled to much credit, and when standing by itself is deserving of none at all.
But it is not on this alone that I impeach the testimony of these bad men; they stand in a situation different, very different, indeed, from other witnesses of that description—a situation to which I again entreat your best attention.
When Ainslie was first examined before the Sheriff, and for a long time afterwards, he persisted in maintaining the innocence of Mr. Brodie; nor was it till he learned that Brodie was apprehended, and till he was informed that to criminate him was the only means of saving his own life, that he uttered a syllable tending to infer the guilt of my client. This we offered to prove in the course of the trial, but a proof was refused by the Court.
The first testimony, therefore, which he gives in the matter is deliberately false. Is his after-information, or the evidence he has given this night, the better to be believed that it was wrung from him by the fear of death, or brought out of him by the hopes of life? It is vain to say that there is no proof that such means were used with him. There is real evidence that under these impressions he must have been when he delated Mr. Brodie. Well did he know that Mr. Brodie, from his unhappy connection with him and his associates, was suspected of being accessory to their guilt. He was not so blind as not to see that to the public prosecutor, whose duty it ever is to choose from various associates those whose situations make them the most striking examples of public justice, to accuse and convict such a person as Mr. Brodie was effectually to secure his own life.
It was a situation too powerful to be overcome even by much more virtue than the witness could boast of, and, unhappily for Mr. Brodie, his connection with the witness in scenes of another kind, while it suggested the accusation, procured it credit. I cannot ask you to believe without evidence that such a plot was laid, nor am I entitled to charge it. But surely witnesses in such circumstances should not lightly be believed. And doing so may lead to consequences of the most dreadful nature, as every man, unfortunate enough to have been innocently, perhaps, the companion of villains, may thus by falsehood and treachery be made their substitutes to the offended laws of their country. Ainslie’s evidence, therefore, in such a situation, is not only suspicious, but altogether incredible.
The evidence of Brown is, if possible, still more unworthy of credit than that of Ainslie. A more hardened and determined villain can hardly be figured. You saw, gentlemen, the manner in which he gave his evidence. He appeared more like a man rehearsing and expatiating upon the patriotic acts he had performed for the good of his country than a criminal unfolding the black history of his own iniquities. You have it in proof that he was not only accused but convicted of a former felony, and sentenced to be transported; that a presentment by the grand jury stands yet against him for another felony; and that he was banished for theft by a sentence of the Justices of Peace of Stirlingshire, proceeding on his own confession.
He has no doubt received His Majesty’s pardon. It has been obtained for him, at a very great expense, for the sole purpose of enabling him to be a witness in this cause. But though the Court has determined that this pardon, the crimes being committed in England, rehabilitates this man, and that his evidence is admissible; yet no pardon can restore his credibility, or render him an honest man. The pardon cannot alter the nature of the criminal; “can the Ethiopian change his skin, or the leopard his spots?” Is it possible that a King’s pardon can restore purity of heart, rectitude, and integrity? Can “a piece of parchment with a seal dangling at it,” a phrase employed on another occasion, perhaps with less force of application, turn wickedness into honesty, and transmute infamy into honour? The King has no such prerogative; this is the prerogative of the King of Kings alone, exerted only towards repenting offenders; and even with Him such change may well be accounted a miracle.
In the eye of reason, therefore, Brown is still a notorious convicted felon, an infamous, unrepenting villain, who, till the 28th July last, the date of the pardon, would not have been received as a witness even in a twopenny-halfpenny cause between man and man. And yet upon this evidence is now to depend the reputation and life of a once respected citizen! These things need only to be mentioned, gentlemen, in order to be fully felt, nor will I insult the understanding of so intelligent a jury by dwelling upon them for a moment longer.
But this, gentlemen, is not all. Mark the game which this man had to play, and in what manner he has played it. He had not, like Ainslie, only his accession to this offence to shake himself loose of; a sentence of transportation hung over his head. This sentence he has not obeyed; and the penal certification is in England, I suppose, as it is with us, capital. By accusing a person of such consequence as to make it worth the while of the servants of the Crown to make him King’s evidence, he not only freed himself from trial for the offences committed here, but secured a pardon for the offence of which he stood convicted, as it was necessary, to qualify him to be a witness, that his former conviction be done away, and all his former crimes washed off in the fountain of Royal favour. A bribe of such magnitude flesh and blood could not resist. Thus, gentlemen, in addition to the profligacy of character, to the load of infamy under which this man laboured, you see the most powerful engines which can set in motion the human soul employed to drag him forward to an accusation which he had not originally made, and which, but for this, his conscience, hardened as it is, might have prevented him from ever making.
The Lord Advocate was pleased to commend this witness, as having spoken out from a desire of doing justice and being of service to his country. Did his appearance this day indicate any such feelings? Do not the circumstances in which he brought forward this accusation show the baseness of his views? He has sworn that at first he did not accuse Mr. Brodie. No; it was not till his return from England that he took this course, when, finding that the sacrifice of mean victims was not leading to any steps being taken to procure him a pardon, and that the other unhappy prisoner at the bar had confessed his own guilt, but without accusing Mr. Brodie, he (Brown) gave the lie to his first declaration by criminating that gentleman; and the pardon, which has this day procured admission to his testimony, was obtained for him. The measures of the public prosecutor in this respect were highly proper, believing, as he no doubt did, the testimony of this man. But I leave it to you, gentlemen, to consider whether it is possible for any witness to stand in more suspicious circumstances; and whether, as several of the judges have told you, that had his conviction been in Scotland instead of England, they would have rejected his testimony, notwithstanding the pardon, you should not so lay aside his evidence altogether in justice to the prisoner, who ought not to suffer for a distinction which, however founded in law, is contrary to common sense or reason when applied to the credibility of the witness, of which you alone are the judges.
I come now, gentlemen, to the direct proof of alibi. And here I readily confess that a proof of alibi is generally resorted to only upon the most desperate occasions; and that such proof, when it is in contradiction to facts clearly substantiated by real evidence or parole testimony beyond all suspicion, must yield thereto. But, gentlemen, this is by no means the case here. The alibi is established by the most direct and complete proof, in opposition to which nothing direct appears in evidence, unless the testimony of two witnesses, entitled to no credit from their characters, and swearing in circumstances the most suspicious. There are, indeed, other circumstances proved; with regard to which I am to address you afterwards. But these, if the depositions of Brown and Ainslie be laid aside, must appear to you so light when weighed against this evidence of alibi that they must kick the beam. The alibi, gentlemen, is thus proved.
You have, in the first place, the evidence of Mr. Sheriff. This gentleman, no doubt, is brother-in-law to Mr. Brodie; and it may be said that this circumstance renders his evidence suspicious. But Mr. Sheriff, gentlemen, is well known to many of you as a man of character and reputation, as a person of unblemished conduct, in a rank of life equal to many of yourselves. And I appeal to you, gentlemen of honour as you are, whether any of you, judging of this witness, as you would wish to be judged of yourselves, would for a moment indulge the thought that even to save the life of his wife’s brother he would deliberately come forward to cast away his own soul? This gentleman deposes most expressly that he dined at Mr. Brodie’s house on Wednesday, the 5th of March, the day on which the Excise Office was broke into, in company with two ladies and another gentleman; that he staid there till about eight o’clock; that Mr. Brodie during all that time was never absent from his company; and that he even asked the witness to stay supper.
Here is a direct contradiction to the evidence of Brown, who swore that Brodie called at Smith’s in the afternoon of that Wednesday. Which of the two, gentlemen, are you to believe? But it is needless for me to ask the question. Were even the former circumstances urged against the credibility of this man’s evidence not sufficient, you have him here convicted of the grossest perjury, if Mr. Sheriff is to be believed; for that gentleman has expressly sworn that they dined at a quarter past three o’clock, and that Mr. Brodie never left the company while the witness staid, which was till near eight o’clock.
It was asked on the other side of the bar how Mr. Sheriff, at this distance of time, came to recollect so precisely that it was upon Wednesday, the 5th of March, he dined with Mr. Brodie? The answer is obvious. It was publicly known upon the Monday following, and the witness has sworn he knew it, that Mr. Brodie was accused of being concerned in the robbery of the Excise Office. Was it not then natural—nay, would not the contrary have been altogether incredible—that Mr. Sheriff, having only four days to look back, should be able to recollect in a matter that touched so deeply the character, and might affect the life, of so near a relation, that he dined with him that very day on which that felony was perpetrated? Which of you, gentlemen, could not at this time recollect where you dined last Saturday or Sunday, and the precise time at which you left the company?
If, therefore, Mr. Sheriff is to be believed, and why he should not no reason can be suggested, the prisoner could not be present, as Brown and Ainslie have deponed he was, prior to the time Ainslie left Smith’s to go to the Excise Office; which Ainslie has fixed at a quarter before eight; nor could he be with them at Smith’s at all, as Brown swears they all left it a quarter of an hour after Ainslie, and immediately joined him at the Excise Office.
But Jean Watt depones that Mr. Brodie came to her house at eight o’clock on the Wednesday evening, when the eight o’clock bell was ringing; her reason for recollecting these circumstances, too, is a very good one, it being the last time that ever Mr. Brodie slept in her house. Her evidence is corroborated by the servant-maid, who depones exactly to the same purpose. And there is a circumstance, gentlemen, in the deposition of this witness which well merits your attention. Upon being asked what bell was ringing, she said it was the bell of the Tron Church. Here the counsel on the other side of the bar appeared to hug themselves upon the mistake into which they supposed she had fallen, by mentioning a bell which, from the distance, she could not possibly hear. But the matter was cleared up in a moment, when, on being asked where the Tron Church was, she replied, in the Parliament Close. This, gentlemen, is the natural simplicity of truth; this proves her to be no tutored witness, brought forward to rehearse a tale made up beforehand, or to assign fictitious causes of knowledge.
Both these witnesses concur in deposing that Mr. Brodie staid the whole night until next morning at nine o’clock in Mrs. Watt’s house; and their evidence is corroborated by that of Helen Alison, who saw him coming down stairs at nine on the Thursday morning. The evidence of this good woman, Helen Alison, is accompanied with circumstances the most natural and striking, and is confirmed by James Murray, one of the sheriff-officers employed in the search on the Thursday morning, who swears to her having at that time mentioned Mr. Brodie’s having been at Jean Watt’s all the night of the Wednesday and morning of the Thursday preceding.
The whole of this evidence, taken together, affords a proof the most conclusive that Mr. Brodie could not be present at the robbery of the Excise Office. You find him in his own house till the hour of eight; from that hour till nine on the Thursday morning you find him in the house of Mrs. Watt. It is impossible then that he could have been at Smith’s a considerable time before the hour of eight, or that he could have been present at a robbery which took up an hour in the perpetration.
It was said, on the other side of the bar, that it was of no avail to prove an alibi which was merely confined to the city. This is strange doctrine, gentlemen, and perfectly new. That an alibi may be proved with greater certainty when the distance is greater than when it is small, I do not dispute; but does it follow that it may not be proved though the distance be ever so short? Suppose a felony to have been committed this day under that window, and that I should be accused of having been an actor in it. Could not I, gentlemen, bring sufficient evidence of an alibi, although within a few yards of the place where it was perpetrated? Could I not substantiate, by this numerous and respectable assembly, that I was here from nine in the morning till the present hour, employed in such a manner as to exclude the possibility of my being any way concerned in such felony? And could it be objected to such evidence that I had not proved myself absent from town, and that my alibi was confined to within a few feet of the place where the fact was committed?
It is to no purpose to say that the witnesses may not be accurate as to time, and that, making a small allowance for mistakes, the facts they swear to may be true, consistently with the evidence of Brown and Ainslie. For supposing Mr. Sheriff to have been mistaken as to the precise time he left the prisoner that night, he could not be mistaken as to his being constantly with him from the time of dinner till the time he left him, whatever it was; and this alone must defeat the testimony of Brown and Ainslie, who swear to the prisoner’s having been there in the afternoon long before the meeting, previous to their setting out for the Excise Office, which cannot possibly be true, if Mr. Sheriff’s evidence is to be believed.
Here, then, is the most unequivocal and positive proof that the prisoner, Mr. Brodie, could have no accession whatever to this robbery of the Excise Office, unless you, gentlemen, shall conclude that the whole of these witnesses, consistent as they are and corroborated by circumstances the most simple and natural, have perjured themselves wilfully and deliberately; while Brown and Ainslie, witnesses, from their character, unworthy of all belief and swearing in circumstances the most suspicious, are deponing in the utmost purity of truth and fairness.
Thus, then, gentlemen, the case would stand were it to be decided on the direct testimony of the witnesses on both sides weighed against each other. The circumstantiate proof, however, still remains to be considered, and I am free to confess that if it shall appear to you that these circumstances afford a chain of real evidence, either sufficiently independent of the direct depositions of Brown and Ainslie to prove the prisoner’s guilt, or so fully to confirm their testimony as to remove the cloud of suspicion that hangs upon it, as to convince you that they must be speaking the truth and the witnesses to the alibi the reverse, your verdict ought to be against the prisoner.
But I humbly maintain that not any of those circumstances nor all of them put together are sufficient to entitle the evidence of such witnesses to credit, when the life of a man is at stake, even if the proof of alibi were out of the question, and far less in the face of that proof of alibi, which, if the witnesses have not deliberately perjured themselves, excludes even the possibility of the prisoner’s guilt. For I hope to show that there is not one of those circumstances, suspicious as they may appear, that cannot rationally be accounted for without supposing the guilt of the prisoner, Mr. Brodie; nay, that some of them are totally inconsistent with the supposition of his having been guilty of this offence, whatever other errors his fatal connection with these miscreants may have led him into.
In considering the circumstantiate evidence, gentlemen, you are never to lose sight of the direct proof I had the honour just now of stating to you as to the alibi; and as each circumstance passes under your review, I entreat you to ask yourselves this question, whether it is so clear, so decisive, so totally irreconcilable with the possibility of the prisoner’s innocence as to make the suspicious testimony of those infamous witnesses outweigh the proof of alibi, founded on the depositions of persons liable to objections on no reasonable suspicion?
The first circumstance founded on is the prisoner’s connection with the perpetrators of this crime. I readily grant that it is clear from the evidence that Mr. Brodie was in habits of too great intimacy with these men. I acknowledge that he appears to have been too deeply engaged in courses of gambling and dissipation in their company and society. That his association with such characters was dishonourable to the reputation of my client, I do not deny.
But, gentlemen, this gambling connection is far from being any proof of his share of the guilt of the crime now charged against him and the other prisoner at the bar, though this circumstance, no doubt, gives possibility to a tale that, without it, would have been rejected at once as totally incredible. Had Mr. Brodie been in no way connected with Brown, Ainslie, and Smith, what could they have accused him in? When the hopes of life were held out to Brown and Ainslie, in order to procure a discovery of their confederates, however willing they might be to deceive the public prosecutor, they would have themselves seen that it was in vain to accuse a man as their associate who had never at any time been connected with them.
But though his having connected himself with them afforded a plausible colour to their charge, it does not follow that this connection affords either a proof or a presumption of Mr. Brodie’s guilt; it is to be considered rather as the cause of his being accused. Many other persons, otherwise very respectable, are known to have gamed in company with these very men, but would this have been sufficient to criminate them had Brown and Ainslie thought proper to give them also up as their confederates in this dark business? The folly of haunting, for any purpose whatever, the company of such men is great indeed, but to subject the party guilty to the consequence of every enormity of which such associates may accuse him, on their bare testimony alone, would be a punishment far beyond the offence, as such men would never fail to find some unhappy associate of better rank than themselves to substitute as a sacrifice to the public for crimes to which he had no accession.
The next circumstance founded on in corroboration of the evidence of Brown and Ainslie, is the alleged proof by the oath of Grahame Campbell that Mr. Brodie was present with the gang at the house of Smith on the night the Excise Office was broken into, and left it in their company. The veracity of this witness I mean not to dispute, but I maintain it to be impossible that, if she be speaking the truth, the facts she swears to could happen upon that night, or if she did, it must be fatal to the whole evidence given by Brown and Ainslie, as it contradicts them in the most essential particulars.
This witness indeed swears that one night—for she fixes no precise time—soon before Mr. Brodie left this place, he, Brown, and Ainslie met at Smith’s house before six o’clock; that they all left it about six; that between nine and ten they all returned; that they supped there, and remained about two hours. And she remembers particularly that Brown and Ainslie sat down to supper, but that Mr. Brodie stood all the time they ate their meal. But Brown and Ainslie expressly swore that, after coming out of the Excise Office, they did not see Mr. Brodie again that night, and that Brown did not meet with him till the Friday, when he for the first time got an opportunity of abusing him for having left his post. She differs from them also as to Mr. Brodie’s dress, which she says was, when he came, an old-fashioned black coat, whereas Brown says it was his ordinary black coat, and that he wore a white surtout above it. Both these opposite stories cannot be true, and consequently the young woman has deponed to what happened on a different night, and her evidence does not corroborate that of Brown and Ainslie; or, if she swears to that night, she swears to facts totally inconsistent with the truth of part of their evidence at least, and thereby destroys the credibility of the rest of it.
The Lord Advocate has told you that this witness must be mistaken with regard to their supping, because she has also said that they had ate some fresh herrings or cold fowl before setting out. I cannot, for my part, see how their having taken this collation early in the evening can be any reason for their not supping betwixt nine and ten. And, at any rate, though she could have mistaken the smaller circumstance of their eating or not eating after their return, it is utterly incredible that she should have recollected their all being at Smith’s together between nine and ten, and continuing together for two hours if, as Brown and Ainslie depone, they and Mr. Brodie never met that night after the time the two former went into the Excise Office.
The next circumstance founded on by the prosecutor is the departure of Mr. Brodie from this country, which is not only held out as a flight from justice, but as a flight applicable to this particular offence.
That the flight of a person accused of a crime may in some cases be a strong ingredient in a proof of his guilt, I readily acknowledge, but it is not necessarily so. If he has not been previously accused of that particular crime, and other reasons occur sufficient to account for his leaving his native country, the circumstance is at best equivocal.
In this case it cannot be denied that Mr. Brodie had strong reasons for taking this step separated from any consideration of guilt connected with this offence. His gambling connection with these men was too well known, and though nothing further could be proved against him, it must be a painful feeling for a man of any spirit to remain in that place where persons with whom he had been so intimate were taken up by public justice on charges of so heinous a nature. Joined to this, you find in evidence that a prosecution was depending before the magistrates of Edinburgh against my client for using loaded dice. I do not say, nor do I suppose that this prosecution was well founded, but the very report of such a charge, when added to the connection he had with these men, must have rendered his situation so disagreeable as to induce him to leave Edinburgh, at least for a time, or even to have resolved on settling in some foreign country, where his former folly and dissipation were unknown and where his professional skill might enable him to repair his shattered fortune. What were the real motives of Mr. Brodie it is not for man to judge, but, if his actions were equivocal, you are bound in charity, in justice, in humanity, to put the most favourable construction upon them.
Yet even when he abandoned this country, he does not appear to have conducted himself as one who never intended to return, or who was afraid of any consequences to himself, beyond the pain of enduring in his own country the loss of honest fame. He corresponds, as you find, with his friends in Edinburgh, and the whole tenor of his conduct seems to be such as might have been pursued by a person who intended only to retire out of view for a short time, till the clamour of a prejudiced public against him should cease. A flight under such circumstances and conducted in this manner can never be held as proof of guilt, or even as a circumstance sufficient to stamp credibility on the testimony of a witness base and profligate beyond all example, deponing under the strongest temptations to falsehood, unsupported by the direct testimony of any other witnesses, and directly contradicted by a proof of alibi, proved by a cloud of witnesses altogether free from suspicion.
With regard to the circumstance attending Mr. Brodie’s departure, his conduct in London, on shipboard, and on the Continent, the evidence adduced by the prosecutor is in the highest degree lame and inconclusive. Indeed it ought totally to be rejected as not the best the prosecutor had it in his power to bring; and as to his being brought back to this country, the evidence is very defective. The evidence of Mr. Longlands consists chiefly of hearsay. Those persons who apprehended Mr. Brodie, who conducted him back to this country, are not produced as witnesses. Mr. Walker, who is said to have protected him in London; the owners of the ship, who are said to have altered the destination of the vessel to aid his flight; none of them are brought forward. And as hearsay evidence is only competent where the principal witness is dead or cannot be had, neither of which is here the case, I submit to you, gentlemen, whether any part of this evidence ought to have been received or ought now to be regarded by a jury.
I come now to the evidence arising from the letters said to be written by my client. Gentlemen, urgent as his case may be, I do not wish to strain anything or to evade any part of the proof. I do not mean to contest that these letters are of the handwriting of Mr. Brodie, although this point has been but slenderly proved. My client has not himself denied them; I shall admit them to be his. Now these letters contain nothing which can bring home to him the present charge. They prove that he was avoiding his native land; that he was anxious for the fate of these abandoned men; that he was afraid they might accuse him; but he expressly supposes a false accusation—an accusation that might equally involve the innocent persons he was writing to. In one passage he expressly asserts his own innocence. Yet the letters are written in full confidence, and without any seeming intention to hide anything.
It is true, indeed, that in one of these letters he says that he had no accession to any of their depredations except the last, which is laid hold of as a direct acknowledgment of the crime. But, gentlemen, supposing the word depredation could not be otherwise explained, where is the evidence that the crime in question was the last of which these abandoned ruffians were guilty? and if there were such, it would not be conclusive. The word depredation is generic, and may as well apply to the depredations of the gaming-table as to acts of theft or house-breaking; and as there is but too much reason from the evidence, particularly the process at the instance of Hamilton for defrauding him by false dice, to believe that this unhappy man was not altogether free from accession to depredations that may at the gaming table have been committed by those persons against such as were unfortunate enough to fall into their hands, why should you, gentlemen, to reach the life of a fellow-citizen, construe so equivocal an acknowledgment, couched in so general terms, as applicable to a particular act of guilt; for the proof of which, against this prisoner, you have nothing but the most exceptionable of all human testimony, contradicted by the most direct proof of alibi.
But this is not all. The terms of this acknowledgment, as repeated in the last of these two scrolls, exclude even the possibility that the prisoner could refer, or mean to refer, to the breaking of the Excise Office as the depredation to which he had an accession; for he expressly says that he lost ten pounds by it; but how, in the nature of things, is it possible that if he had been concerned in that affair he could have thereby lost ten pounds, or any sum whatever, seeing Brown and Ainslie have both sworn that the money was fairly divided, and that each of the parties concerned received four pounds and some old shillings for his share? To what other act of depredation, and whether to any committed at the gaming table, these words refer, it is not for me to suggest nor are you, gentlemen, bound to inquire; though it would seem that depredations at the gaming table are the only attacks upon the property of our neighbour that can be attended with patrimonial loss.
It is enough to exclude these scrolls, and also the letters, from operating as evidence of the prisoner’s accession to the crime with which he is charged, that the only accession they acknowledge is inconsistent with the possibility of his guilt; and if he has been so far misguided as to have been concerned with those infamous persons in anything beyond that gambling connection, which he has all along admitted, it must have been some other offence not yet discovered, or not hitherto made the subject of prosecution; which, not being charged in the present indictment, could not have affected the prisoner, though a proof of it had come out in the course of his trial.
The only remaining circumstance brought in aid of the direct parole testimony is the different articles which have been found in the house of the prisoner or elsewhere, and which the prosecutor has attempted to connect with the commission of the act which is the subject of the libel. On this head I shall detain you but a moment, there not being the shadow of evidence to connect any one of them with the prisoner so as to afford a presumption, and far less evidence, of his guilt.
A dark lanthorn was found in his house, but there is not the appearance of evidence that it was used at the perpetration of the crime in question, or was ever out of Mr. Brodie’s own house. The utensil itself is perfectly innocent. The useful part of it was found in the cock-pen, and it is well known that cocks are chiefly fed by candle-light. There were keys and pick-locks found in his house, but it was proved that these are the ordinary implements of his trade, and not one of those have been sworn to as having been used by the villains, who best knew and described the whole mystery of the iniquity. Nay, the only instruments that were used on that occasion in opening the locks or forcing the doors were found at the bottom of Allan’s Close or Warriston’s Close by the officers of justice, led by the other prisoner Smith to the hole in which they were concealed; and not one of those articles, being two crows, a key, a pair of curling irons, a coulter of a plough, and two wedges, is proved to have been in any way connected with Mr. Brodie, the three first of which Brown and Ainslie admit were carried to the scene of action by Brown and Smith, while the two last were stolen by themselves from a field near Duddingston.
True, indeed, it is, that a pair of pistols, which these witnesses say were the property of the prisoner, Mr. Brodie, were found in a fireplace in his house; but it is proved by the same witness that these pistols had not been in the prisoner’s hands for a month before, when he had lent them to Smith; that they were in Smith’s possession on the night libelled; and the sheriff-officers have proven that it was Smith himself who dug out these pistols in Mr. Brodie’s house, which demonstrates that it was he who hid them there—a circumstance not very reconcilable with his considering Mr. Brodie as an accessory, as in that case he could not have chosen a more improper place to conceal them. In case of discovery, it would become the object of the earliest and most anxious search.
Gentlemen, these observations upon the proof on both sides I submit to your most careful and deliberate consideration. You have on the one side a direct and positive proof of alibi; which, if the witnesses are not foresworn, must preclude the possibility of the prisoner’s guilt; and that these witnesses have departed from the truth there is not the shadow of reason to suspect. On the other hand, the whole direct evidence against the prisoner is the testimony of two witnesses, who, besides being destitute of all right to be believed as witnesses in any case, have been brought to give evidence in the present in circumstances of the very strongest temptation to convict my unhappy client whether innocent or guilty, as, but for their having accused him, one or both of them must have stood at this bar in his place. It is for you, gentlemen, to consider, under all the circumstances of the case, to which of those contradictory proofs you will adhibit your belief.
In the hands of an upright and intelligent jury I leave this unfortunate gentleman, confident that whatever verdict you shall pronounce will be the result of your ripest judgment, tempered, in case of doubt, with that tenderness with which it becomes you to decide when the fame and life of a fellow-citizen are at stake.
At half-past four o’clock in the morning the Lord Justice-Clerk proceeded to charge the jury.
The Lord Justice-Clerk (Lord Braxfield). (From an Engraving by Beugo after the Portrait by Sir Henry Raeburn.)
The Lord Justice-Clerk (Lord Braxfield).
(From an Engraving by Beugo after the Portrait by Sir Henry Raeburn.)
The Lord Justice-Clerk’s Charge to the Jury.
Lord Justice-Clerk
The Lord Justice-Clerk—Gentlemen of the jury, the crime which is charged against the prisoners at the bar is of a kind the most hurtful to society. The situation of the pannels, and particularly one of them, is also exceedingly distressful. Mr. Brodie’s father, whom I knew, was a very respectable man, and that the son of such a man—himself, too, educated to a respectable profession and who had long lived with reputation in it—should be arraigned at this bar for a crime so detestable, is what must affect us all, gentlemen, with sensations of horror. This unhappy situation seems to have arisen from a habitude of indulging vices which are too prevalent and fashionable, but it affords a striking example of the ruin which follows in their train.
That the Excise Office was broke into is not disputed. The question therefore is, who broke into it? Was it the pannels?
Now, to ascertain this point you have, in the first place, gentlemen, the evidence of Brown and Ainslie, and if they have sworn truth the prisoners must be guilty. To the admissibility of these witnesses there can be no objection. Were not evidence of this sort admissible, there would not be a possibility of detecting any crime of an occult nature. Had a corrupt bargain, indeed, been proved, by which they were induced to give their evidence, there might have been room for an objection to their admissibility. But no such bargain has even been alleged against the public prosecutor in the present case. And as to their being accomplices, this, gentlemen, is no objection at all. A proof by accomplices may display, it is true, a corruption of manners, which alone can render such proof necessary. But it is impossible to go into the idea that their testimony is therefore inadmissible.
Nor is there, in the present case, any reason to suppose that they were under improper temptations to give their evidence. Each of them was separately called upon by the Court, and it was explained to each of them that they ran no hazard unless from not speaking the truth, and that their being produced as witnesses secured them from all punishment, except what would follow upon their giving false evidence. Under such circumstances, you cannot suppose, gentlemen, that they would be guilty of perjury without any prospect of advantage to themselves, and merely to swear away the lives of these prisoners at the bar.
Their credibility, to be sure, rests with you, gentlemen; and if you find anything unnatural or contradictory in their evidence you will reject it. But there is nothing in it unnatural or contradictory. The principal objection was made against Brown, but his evidence is corroborated by that of Ainslie, and the evidence of Ainslie is again corroborated by that of Brown, and they are both corroborated by all the other circumstances deposed to. With regard to Smith, you have the best of all evidence against him, his own declarations, for it surely is not to be imagined that any man would criminate himself contrary to the truth. These declarations have been substantiated in your hearing, and where a corpus delicti is established, as in the present case, to which these declarations refer, there cannot be a doubt of their being the very best evidence, and therefore you can be under no difficulty of returning a verdict against him.
Gentlemen, to be sure these declarations are not legal evidence against Brodie. But they corroborate the evidence of Brown and Ainslie, who swear positively against him.
The evidence of Grahame Campbell likewise corroborates that of these witnesses. With regard to Mr. Brodie, she swears positively to his being present with them, dressed in an old-fashioned suit of black clothes. She seems, indeed, to be in a mistake about the prisoner’s having supped at Smith’s house that night, but the rest of her evidence is clear and explicit, and concurs precisely with what you have heard from the other witnesses.
The evidence of Brown and Ainslie likewise corresponds exactly with the deposition of James Bonar. Ainslie tells you that a man came running down the close, and it appears that when he opened the door Brodie set off with himself—and, indeed, to tell you the truth, I could not much blame him; and Mr. Bonar tells you that he went down the close at the very time when the robbery was going on, and that when he opened the door a man stepped out, of a description that exactly corresponds with the prisoner and the dress he had on that night.
It appears clear also, gentlemen, from the depositions of the sheriff-officers, that several articles were found upon the search in Brodie’s house, which Brown and Ainslie depose to have been used in the robbery of the Excise Office; a pair of pistols, a dark lanthorn, keys, pick-locks, &c., and many of these last such as never were employed by Mr. Brodie in the course of his business. So that no doubt can remain in your mind of the truth of the facts sworn to by these two men, which are all consistent with, and corroborated by the other evidence.
The crime with which these prisoners are charged, gentlemen, was committed on Wednesday, the 5th of March. Two persons were taken up for it, and Brodie absconded. It is established by the evidence that he went to London, was afterwards put on board a sloop at night, and carried to Flushing; and that, upon search being made for him, he was apprehended at Amsterdam and brought back to this country. Gentlemen, when a person who is accused of a crime flies from justice, it affords a strong presumption of guilt. An innocent man would not fly without just cause. The prosecution against him for using false dice could not be the reason of his flight. Nay, he tells you himself in his declaration that he absconded because Smith and Ainslie were taken up.
The papers found in the trunk, gentlemen, and the two scrolls, all which have been proved to be of Mr. Brodie’s handwriting, afford strong evidence against him. In one of the scrolls there is a fair and full confession of his direct accession to the robbery of the Excise Office. He says, “He never was directly concerned in any of their depredations, except the last fatal one.” This is even a confession of more than is charged against him, for it must mean that he was concerned, though not directly, in their other depredations. It is impossible, gentlemen, to mistake the meaning of this expression, or that it can apply to anything else than the breaking into the Excise Office.
With regard to the alibi, gentlemen, it is no doubt proved by the oath of Mr. Sheriff that he was in Brodie’s company from three o’clock of Wednesday, 5th March, till near eight at night, he having dined in Mr. Brodie’s house that day along with three ladies, and a gentleman whose name he does not recollect. But then this rests entirely upon his evidence, and though I do not mean to say that he has sworn falsely, yet he is not a witness omni exceptione major, above all exception, being the brother-in-law of Mr. Brodie. Besides that, gentlemen, allowing the evidence of Mr. Sheriff, he is still only a single witness, and even in civil cases a fact cannot be established by the evidence only of one witness, especially where it is not supported by any other circumstances. At any rate, the evidence is not inconsistent with the guilt of the pannel, for the Excise Office was broke into after eight o’clock, and Mr. Sheriff was in his own house in St. James’s Square about eight o’clock.
As to the evidence of Jean Watt, who swears that Brodie came to her house that night at eight o’clock, you are to consider, gentlemen, that although, to be sure, she is not his wife, yet she is his mistress; and love is often as deeply rooted between persons of that kidney as between lawful man and wife. And, as you see, gentlemen, that either she must be mistaken as to the hour or that the witnesses on the other side must be wrong, you are to determine with yourselves whether the witnesses for the prosecution brought forward by the Lord Advocate, who has no interest but to get at the truth, or this woman, and her servant-maid who concurs with her, are most entitled to belief. And you can have no doubt but that the presumption is greatly in favour of the witnesses for the Crown, who can be influenced by no motives but those of public justice.
This woman and her servant, Peggy Giles, have no doubt deposed that it was eight o’clock when Mr. Brodie came to their house; but, gentlemen, even supposing them to be swearing to what they think true, yet they still may be mistaken with regard to the precise time; and the mistake of an hour, or half-an-hour, would reconcile their evidences with the other proof you have heard. There is a bell rings at ten o’clock as well as at eight, and these witnesses may very probably have confounded the one with the other; for I have no doubt that Brodie did come to that house that night, and staid there till the next morning. Gentlemen, the law itself makes allowance for mistakes of this kind. Thus in the civil Court, in a competition between two arrestments, of which one, for instance, is at eight and another at nine o’clock, they are preferred parri passu, because the law supposes that the memories of witnesses may be so frail as not to distinguish short intervals of time with proper accuracy. So that you see, gentlemen, that even supposing these witnesses were willing to speak the truth, yet their evidence is completely reconcilable with the other depositions.
Upon the whole, gentlemen, taking all the circumstances of this case together, I can have no doubt in my own mind that Mr. Brodie was present at the breaking into the Excise Office; and as to the other man, Smith, as I have already said, there can be still less doubt as to him. If you are of the same opinion, gentlemen, you will return a verdict against both the prisoners; but if you are of a different opinion, and do not consider the evidence against Brodie sufficiently strong, you will separate the one from the other, and bring in a verdict accordingly.
At about six o’clock on Thursday morning, the Lord Justice-Clerk, having finished his charge to the jury, said that he hoped it would not be inconvenient for them to return their verdict at twelve o’clock that day; but, upon the suggestion of one of the jurymen, it was fixed to be returned at one o’clock.
The Court then pronounced the following interlocutor:—
The Lord Justice-Clerk and Lords Commissioners of Justiciary ordain the assize instantly to inclose in this place, and to return their verdict in the same place at one o’clock this afternoon, continue the diet against the pannels till that time, ordain the haill fifteen assizers and all concerned then to attend each under the pains of law, and the pannels in the meantime to be carried back to prison.
The Court then adjourned.
