William Roughead

The Court met at one o’clock.

CURIA JUSTICIARIA S. D. N. Regis, Tenta in Nova Sessionis domo de Edinburgh, Vicesimo Octavo 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 Justiciarae dict. S. D. N. Regis.

Curia Legitime Affirmata.

The Court being again met, and the prisoners brought to the bar, the Clerk of Court called over the list of the jury, and all being present, the Lord Justice-Clerk asked them who was their Chancellor, upon which the Chancellor rose, and delivered their verdict to his Lordship, sealed with black wax.

The verdict being opened and read by the judges severally, they appointed it to be recorded. During this pause a deep silence prevailed.

The verdict being recorded, the Lord Justice-Clerk called upon the prisoners to attend to it, and it was then read aloud by the Clerk of Court as follows:—

The Lord Advocate—It is now incumbent upon me, my Lords, to move your Lordships to pronounce the sentence of the law against the prisoners at the bar.

Mr. Wight—My Lords, before your Lordships proceed to pronounce judgment, I have an objection to state on behalf of the prisoners at the bar, which, in my opinion, ought to prevent any judgment from passing upon this verdict.

My Lords, from the evidence taken in the course of this trial, it appears that the libel is insufficient, in so far as it charges “that the pannels did wickedly and feloniously break into the house in which the General Excise Office for Scotland was then kept,” whereas it ought to have stated that they so broke into one of the houses so kept, describing such house particularly. For it appears from the proof that there were two separate and distinct houses in which the General Excise Office for Scotland was then kept, on the opposite sides of the court, and at a considerable distance from each other.

Besides, my Lords, supposing this uncertainty in the libel as to the locus delicti were insufficient to operate an arrest in judgment, yet no judgment can pass upon the verdict of the jury, on account of the uncertainty thereof, inasmuch as it finds in general terms the pannels guilty of the crime libelled; by which it is found that they have been guilty of breaking into the house in which the General Excise Office for Scotland was then kept, without distinguishing to which of the two before-mentioned houses the verdict applies. And the present plea in arrest of judgment deserves the greater consideration on this account, that the jury were called upon, by the manner in which the proof was conducted on the part of the pannels, to attend particularly to the circumstance of the Excise Office being kept in two separate and distinct houses.

The Lord Advocate—My Lords, I am not a little surprised that an objection of this nature should be brought forward at this time. This plea resolves into an objection to the relevancy or form of the indictment, which ought to have been stated in limine. If the gentlemen on the other side of the bar meant to have stated any such objection as the present, they ought to have done it yesterday. But after they have allowed the indictment to pass without any such objection; after your Lordships have sustained it as relevant, and remitted it to the knowledge of an assize in common form; and when the jury have returned a verdict finding the prisoners guilty of the crime charged—there can be no room for any further proceeding, except to pronounce the sentence of the law upon the verdict so returned.

I do therefore, my Lords, altogether deny that it is competent, in this stage of the trial, to bring forward an objection such as the present, which ought to have been stated at first, and which your Lordships cannot now enter upon.

But, my Lords, even if the matter were open, the objection itself is altogether frivolous, for the house that was broke into, as stated in the indictment, was really and truly the house known by the name of the General Excise Office for Scotland at the time. It is indeed true that one or two of the clerks and inferior officers were accommodated in a small house within a few feet or yards of the large one, and which was joined to it by a wall like a wing. But this did not make them in any sense of the word two separate houses. The principal house which was broke into, was hired at £300 per annum of rent, and the small house at £8 per annum. This last was just as much a part of the General Excise Office as a kitchen separate from any house is a part of that house. And surely your Lordships would not cast an indictment which charged that a man’s house was broke into, upon the ground that his kitchen was not joined to his house, which very often happens.

I therefore, my Lords, consider this as a very frivolous objection, and I know that the honourable counsel on the other side of the bar, who is, to speak in reply to me, knows too well the dignity of his character and the honour of his profession to insist seriously upon an objection so futile. Had this been the case of a poor man, my Lord, we would not have heard of this objection, and I do not see what title the rank and situation of this man can plead for troubling the Court with frivolous objections to the verdict of a jury after so long and so fair a trial.

The Dean of Faculty—My Lords, I know what belongs to the dignity of my profession and the honour of my character as well as my Lord Advocate. [Here the Lord Advocate, laying his hand upon his heart, expressed, by the strongest gestures, that he meant to say nothing disrespectful to the Dean of Faculty, and was going to speak, when the Lord Justice-Clerk said that what my Lord Advocate had mentioned, so far from being derogatory to the Dean of Faculty, was a high compliment to him. The Dean of Faculty then resumed.] My Lords, I say that I know how I ought to conduct myself, both as a lawyer and a gentleman, and it is in the full conviction of performing my duty that I rise to enforce the present objection, which I think is such a one as ought to overturn this verdict.

It has been asked why this objection was not brought forward in an earlier stage of the trial—why it was not pleaded at the very outset, as sufficient to cast the indictment? It has been called a frivolous objection by my Lord Advocate. But many objections were styled frivolous by the gentlemen on that side of the table during the course of this trial, which your Lordships decided to be well founded. My Lords, it was impossible to plead it in this early stage, because the fact came out to be as stated in the objection only during the time that the proof in this trial was led. Though the circumstances might be known to us privately before, yet it was not substantiated by proof, and this surely is the proper time for stating an objection, the grounds of which only appeared in the course of the evidence, and could not possibly appear sooner.

With regard to the matter of fact in this case, I shall not detain your Lordships a moment. Nothing is clearer from the evidence than that there were two separate and distinct houses in which the Excise Office was kept at the time when the robbery was committed. Several of the witnesses have sworn to this, and it was admitted on the other side of the table. I therefore say, my Lords, that this verdict, which has found the prisoners guilty of breaking into the house in which the General Excise Office was kept, finds nothing.

It is in vain to say that these two houses belonged to one and the same office. If they are not under the same roof—which it is confessed these two houses are not—then it is of no importance how near they may be to each other, for neither of them is the house in which the Excise Office was kept, but only one of the houses employed for that purpose. His Grace the Duke of Buccleugh has two houses lying near each other, the house of Dalkeith and the house of Smeiton, both in the parish of Dalkeith. Would the verdict of a jury be good, which, upon the statement of an indictment that the house of the Duke of Buccleugh, lying within the parish of Dalkeith, was broke into, should simply find the pannel guilty? Surely not. It would be necessary to specify which of the houses was broke into, because an innocent man, who could prove an alibi with regard to the one, might not be able to prove it with regard to both, or, in short, because the libel is uncertain.

The Excise Office is now removed to the house lately possessed by Sir Laurence Dundas in the New Town of Edinburgh.[27] Suppose that part of the offices still remained in the former place, would it be sufficient to say that the house in which the General Excise Office is kept was broke into, when there were evidently two houses in which it was kept, one in the Old and one in the New Town? And the only difference betwixt that case and the present is that the distance is greater, for in both cases the houses are equally separate and distinct.

In the same way, for the sake of illustration, it was not till lately that I myself could find a house sufficiently convenient both for the purposes of business and accommodation of a numerous family. I had accordingly two houses, one in George Street and one in Princes Street, and I have done business in both of them. Now, would an indictment charging a person with having broken into the house of the Honourable Henry Erskine, Dean of the Faculty of Advocates, be sufficient, while I possessed two houses, to support a verdict which found the pannel in general terms guilty? It would not be enough to say that I employed both houses frequently for the same purposes, and that I could pass from the one into the other, though not without some little inconvenience of getting wet when it rained. This undoubtedly would not be sufficient, unless I could prove that both houses were one and the same; a verdict finding the pannel guilty of breaking into the house, could, from its uncertainty, apply neither to the one nor to the other.

My Lords, I will not detain your Lordships. The case is very short and simple, and without stating any further illustrations or arguments, I think that the prisoner cannot be more safe than in the opinions which your Lordships shall deliver upon so plain a point so fairly stated to you.

Lord Hailes—My Lords, I have great doubts concerning the competency of this objection, but it is a subject upon which I do not like to enter. I am indeed sorry that this objection has been stated, as it may flatter the prisoners with hopes which I am afraid are ill founded.

The merits of the objection itself appear to me very easy of discussion. The Dean of Faculty is mistaken with regard to the houses possessed by the Duke of Buccleugh, for they are not both in the parish of Dalkeith, as the house of Smeiton lies in the parish of Inveresk. But supposing they did both lie in the same parish, there is a great difference betwixt houses situated at some distance from each other and those which lie immediately contiguous, as is the present case. The small house adjoining to that principal one in which the Excise Office was kept is to be considered as a part of the same building, employed always for the same purpose, and used only for better accommodation.

I repeat it again, my Lords, that I have doubts whether or not this objection be now competent, but laying this out of the question, I am clear for repelling the objection, as the expression used in the indictment appears to me sufficiently descriptive of the place in which the General Excise Office was kept.

Lord Eskgrove—My Lords, I am sorry that this objection has been stated, and I think it my duty to declare, for the sake of the prisoners at the bar, that I do not think it such as ought to induce them to hope that it will operate any change as to the verdict which has been returned this day.

It is my opinion, my Lords, that the objection itself, without entering into the question whether it be now competent to state it, cannot be listened to by the Court. The indictment states that the prisoners at the bar broke into the house in which the Excise Office was kept at the time when the robbery happened, and although a few offices may have been kept in the small house adjoining to the principal building, yet it cannot be denied that this separate tenement was considered as a part of the General Excise Office; and the witnesses themselves, who were examined upon this point have told us that had this small tenement been broke into instead of the principal house, they would have said that the Excise Office was broke into.

Upon this ground, I am clear for repelling this objection as not well founded, the whole building, which was called the Excise Office, being situated in the same place, and inclosed by the Commissioners so as to render its parts distinct from any other building.

Lord Stonefield—My Lords, I do not understand the bringing forward this objection at this time; it seems as if they wished to introduce the forms of the law of England. I think that the Lord Advocate has described in the indictment the place where the crime was perpetrated with sufficient accuracy, and therefore I am for repelling the objection.

Lord Swinton—My Lords, among all the proceedings in this painful trial, the present motion gives me the greatest pain. It sets forth, first, that the libel charged the prisoners with wickedly and feloniously breaking into the house in which the General Excise Office for Scotland was then kept. The motion next sets forth that the verdict finds the prisoners guilty of the crime charged; and it concludes for an arrest of judgment, because the General Excise Office consists of more houses than one, as your Lordships will recollect from the proof taken before you yesterday.

One of the counsel yesterday stated himself as appearing not only in defence of the prisoners, but in defence of the law itself.

The motion, however, now made, if properly considered, tends to overturn the most valuable part of the law, namely, that part which gives this kingdom the security of jury trial. By the mode of trials long ago established, the libel is first of all to be read; the party accused is then at liberty to state his defences to the form of the indictment, and to the competency or relevancy of the charge; and it is the province of the judges to determine the law, that is, to decide upon the defences; which, together with the judgment upon them, must enter the record. The indictment and judgments upon it are then remitted to the knowledge of an assize. It then goes out of the hands of the judges, and the province of the jury commences, which is to try the truth of the facts, and to apply the law, that is, the judgment of the Court, to the facts, by returning such verdict as they think fit. That is their province. After they return their verdict, the cause comes back into the hands of the judges to pronounce the sentence of the law. But in doing so the only materials subject to their judgment are those which appear on the face of the record, that is, the indictment, the minutes of proceedings, and the verdict. They can take nothing else under their consideration; particularly, they have no power to look back into any part of the proof, or to take it under consideration in any manner.

In the present case, looking into the record, we see the indictment charges the prisoners with breaking into the house in which the General Excise Office was kept. We observe not in the proceedings any objections made to the form or the competency of the charge. The verdict finds the prisoners guilty. This is all that appears upon the face of the record. But what is now proposed to us by this motion? It is to look into our notes, or to recollect from our memory, that it was proved the whole offices of Excise were not precisely under one roof, and that there is a small adjoining house also made use of; and we are moved to arrest judgment, for that the libel is improperly laid, as it does not mention that there are more houses than one, and specify which of these were broke open.

Now, what does this amount to? Is it not a suggestion to the judges to look back into the proof, which is the whole province and privilege of the jury? If the judges, after a verdict, might look back into and consider the proof or any part of it in favour of the party accused, they might surely do the same thing to his prejudice, and in favour of the prosecutor. Is not this a mode of proceeding altogether incompetent? Is it not paving a way to make verdicts of no use, but our usurping a right to judge of the proof, independent of the verdict?—a proceeding which, I should think, is not only incompetent, but even criminal. Why did our ancestors establish the rules of proceeding which we have always observed? It was for the security of the lives and liberties of the subjects of this kingdom. The security handed down to us from our ancestors, we are bound to deliver unimpaired to our posterity.

My Lords, if I have expressed myself warmly upon this occasion, I hope your Lordships will forgive me. I am so clear upon the incompetency of this motion, that, however clear also upon the merits, yet, for the reasons given, I am not at liberty to say one word upon them.

The Lord Justice-Clerk—I am clearly of opinion that it is not now competent to receive this objection, although the objection itself, were it received, is such as would have no weight with me. But I will not enter into its merits; it ought to have been stated in the pleading as a bar to the present trial; and the counsel for the pannels ought then to have brought forward whatever proof they had in order to prove the matter of fact. It is now impossible for the Court to review the evidence which has been led, and the objection must therefore be repelled.

The Dean of Faculty then moved the Court to allow the plea upon the arrest of judgment to be entered upon the record, which was allowed accordingly, and an interlocutor pronounced in the following terms:—

The Lord Justice-Clerk—My Lords, you will now deliver your opinions as to the sentence to be pronounced against the pannels at the bar.

Lord Hailes—My Lords, after the verdict of the jury, nothing remains for us but the melancholy task of pronouncing the sentence of the law. It is not left in our option what punishment to inflict, for the law has declared the crime of which these unhappy men have been convicted, capital. It is my opinion, my Lords, that the prisoners at the bar be carried back to the Tolbooth of Edinburgh, and that they be there detained, and that they be executed on Wednesday, the first day of October next.

Lord Eskgrove—My Lords, nothing is left for me but to agree with the opinion delivered by my honourable brother. I sincerely commiserate the fate of these unhappy men; one of them especially I pity much. Now that I see him at the bar, I recollect having known him in his better days and I remember his father, who was a most worthy man. Their situation is a miserable one, and I hope that it will have the effect to deter others from being betrayed into the same vices which have led these poor men to this ignominious condition.

Lords Stonefield and Swinton delivered sentiments to the same purpose.

Address to the Prisoners and Sentence.

The Lord Justice-Clerk then addressed the prisoners as follows:—William Brodie and George Smith, it belongs to my office to pronounce the sentence of the law against you. You have had a long and fair trial, conducted on the part of the public prosecutor with the utmost candour and humanity, and you have been assisted with able counsel, who have exerted the greatest ability and fidelity in your defence.

I wish I could be of any use to you in your melancholy situation. To one of you it is altogether needless for me to offer any advice. You, William Brodie, from your education and habits of life, cannot but know everything suited to your present situation which I could suggest to you. It is much to be lamented that those vices, which are called gentlemanly vices, are so favourably looked upon in the present age. They have been the source of your ruin; and, whatever may be thought of them, they are such as assuredly lead to ruin. I hope you will improve the short time which you have now to live by reflecting upon your past conduct, and endeavouring to procure, by a sincere repentance, forgiveness for your many crimes. God always listens to those who seek Him with sincerity.

His Lordship then pronounced sentence of death in the usual form, and the sentence having been recorded and signed by the judges, it was read aloud as follows:—

The sentence having been read, Mr. Brodie discovered some inclination to address himself to the Court, but was restrained by his counsel. He thereupon respectfully bowed to the bench, and the pannels were removed to prison.[28]

The Court then rose.