At the conclusion of the evidence the Dean of Faculty and John Clerk had

held a final consultation, when it was arranged that Clerk should speak

first for Smith, and that Erskine should follow for Brodie, and

strengthen or take up such points as he might think necessary. In order

to put himself in fighting form, Clerk, we are told, drank a bottle of

claret before commencing his address. This speech, the only extant

example of his celebrated method of advocacy, was, in all the

contemporary reports, reduced to a minimum for fear of offending the

judges. Fortunately, however, a later writer, Peter Mackenzie, has

preserved, in his “Reminiscences of Glasgow” (Glasgow, 1866), a full

account of the suppressed passages, which he gives on the unquestionable

authority of Æneas Morrison, the agent for Smith, who himself furnished

the author with these particulars. They have accordingly been

incorporated in the following report.

When Clerk, in the course of his address, came to deal with the evidence

of Ainslie and Brown, a scene, almost incredible to us nowadays,

occurred between the irrepressible young advocate and the overbearing

judge. Clerk informed the jury that, in his opinion, these witnesses

ought never to have been admitted, a statement which the bench naturally

resented, and he went on to insist that, notwithstanding the ruling of

the Court, the jury should discard their evidence entirely, as they (the

jury) were to judge of the law as well as of the fact. In the course of

the discussion which followed, the intervention of the Lord Advocate was

met by a graceful allusion to His Majesty’s Tory Administration as

“villains” likely to contaminate the Crown.

A heated altercation between Clerk and Braxfield ensued, and, finally,

the latter bade him go on with his speech at his peril. On Clerk

refusing to proceed unless allowed to do so in his own way, Braxfield

invited the Dean of Faculty to commence his address for Brodie, which

that gentleman declined to do. Thereupon the Lord Justice-Clerk was

about to charge the jury himself, when Clerk, starting to his feet and

shaking his fist at the bench, cried out, “Hang my client if ye daur, my

Lord, without hearing me in his defence!” These amazing words, the like

of which had seldom echoed in judicial ears, caused the utmost sensation

in Court, and, after an awful pause, the judges left the bench to hold a

consultation. But, on their return, instead of anything tremendous

taking place, his Lordship civilly requested Clerk to continue his

address, and the incident terminated.

Thus was the redoubtable Braxfield forced to yield to the persistence of

the fiery young counsel. On reading the discussion as reported, one

cannot but think that Clerk was clearly in the wrong, and that his

contention as to the jury being judges both of the fact and of the law

was, as Braxfield roundly put it, “talking nonsense.” Nor does it

appear that the line which he saw fit to adopt could in any way benefit

his unfortunate client, whose interests would have been better served by

more temperate methods. Clerk, however, was thoroughly pleased with his

performance, and subsequently observed that it was “the making of him”

professionally.

It is said that Clerk’s indignant repudiation of the prosecutor’s

argument that the King’s pardon made Brown an honest man reached the

ears of Robert Burns, and led him afterwards to write the famous lines--

A prince can mak’ a belted knight,

A marquis, duke, an’ a’ that;

But an honest man’s aboon his might,

Gude faith, he mauna fa’ that!

At three o’clock in the morning the Dean of Faculty rose to address the

jury on behalf of Deacon Brodie. In spite of the fact that he had been

continuously engaged upon the case since nine o’clock the preceding

morning, no signs of exhaustion appear in his eloquent and powerful

speech. Every point telling in favour of the prisoner was given due

prominence, and the utmost was made of the somewhat flimsy material of

the _alibi_; the whole address forms a fine example of forensic oratory.

At half-past four o’clock the Lord Justice-Clerk--who is said never to

have left the bench since the proceedings began--delivered his charge to

the jury, which, one is glad to find, notwithstanding what had

previously occurred, was a fair and impartial review of the evidence.

His Lordship having concluded his charge at six o’clock on Thursday

morning, the Court adjourned until one o’clock afternoon; the jury were

inclosed; and the prisoners taken back to prison.

The _Edinburgh Advertiser_ remarks--“Mr. Brodie’s behaviour during the

whole trial was perfectly collected. He was respectful to the Court, and

when anything ludicrous occurred in the evidence he smiled as if he had

been an indifferent spectator.”

When the Court met again at one o’clock, the Chancellor of the jury

handed in their written verdict, sealed with black wax, which

unanimously found both panels guilty of the crime libelled, and the Lord

Advocate formally moved for sentence.

A final effort was now made on behalf of the prisoners. Counsel for

Brodie stated a plea in arrest of judgment, in respect that the verdict

found the panels guilty “of breaking into _the_ house in which the

General Excise Office for Scotland was kept,” whereas it appeared from

the evidence that there were, in fact, two separate and distinct houses

occupied as the Excise Office. This objection was, after argument,

repelled by the Court, and the prisoners were sentenced to death, their

execution being appointed to take place on Wednesday, 1st October.

When the sentence was pronounced, we are told “Mr. Brodie discovered

some inclination to address himself to the Court, but was restrained by

his counsel,” and contented himself with bowing to the bench. The

prisoners were then removed to the Tolbooth, escorted by the City Guard,

amid a great concourse of spectators, and the proceedings terminated.

Æneas Morrison, the agent for Smith, adds the following

particulars:--“The panels behaved in a manner different from each other,

Smith appearing to be much dejected, especially at receiving his

dreadful sentence, although in many instances he showed very great

acuteness in his remarks upon the depositions of the witnesses and in

the questions to them which he suggested. Mr. Brodie, on the other hand,

affected coolness and determination in his behaviour. When the sentence

of death was pronounced he put one hand in his breast and the other in

his side and looked full around him. It is said that he accused his

companion of pusillanimity, and even kicked him as they were leaving the

Court. Thus ended a trial which had excited the public curiosity to an

extraordinary degree, and in which their expectations were not

disappointed. During the space of twenty-one hours--the time it

lasted--circumstances continually followed each other to render it

highly interesting, and more particularly to the gentlemen of the law,

on account of the great variety and importance of the legal topics which

were discussed and decided.”

The prisoners were lodged in the condemned cell of the Tolbooth, along

with two men, James Falconer and Peter Bruce, then under sentence of

death for breaking into and robbing the office of the Dundee Banking

Company. They were each chained by one foot to an iron bar, but a

contemporary account records that “Brodie’s chain is longer than the

rest, as he can sit at a table and write by himself. They have behaved

tolerable well, considering the small room they have on the goad, which

goes across the room, very securely fixed from one end to the other in

the wall, and hath four divisions or places on which the chains are

fixed, with strong iron supporters fastened into the stone floor, and

each has a mattress to lie on opposite to himself.”

A terrible change this, for the unfortunate Deacon, from the comfortable

chambers of his house in Brodie’s Close and the social advantages which

he had so long and undeservedly enjoyed. He seems, notwithstanding, to

have kept up his spirits, and is said to have been as particular as ever

in the matter of his dress. Having contrived to cut out the figure of a

draughtboard on the stone floor of his dungeon, he amused himself by

playing with any one who would join him, and in default of such, with

his right hand against his left. The author of “Traditions of Edinburgh”

states that this diagram remained in the room, where it was so strangely

out of place, till the demolition of the Old Tolbooth in 1817. Many of

his friends came to see him, for, until the time of his execution drew

near, no restriction was placed upon their visits, and every effort was

made by them to obtain a commutation of the death sentence to one of

transportation for life.

In furtherance of this object Deacon Brodie, on 10th September, wrote

letters to the Right Hon. Henry Dundas, afterwards Viscount Melville,

and to the Duchess of Buccleuch, soliciting their influence in support

of an application then being made to the Government on his behalf.

Copies of these most interesting documents, which have never before been

published, will be found in the Appendix--that addressed to the Duchess

being also given in facsimile. This lady was Elizabeth, daughter of

George, Duke of Montague, and wife of Henry, third Duke of Buccleuch,

the friend of Sir Walter Scott, whose daughter-in-law, when Countess of

Dalkeith, inspired “The Lay of the Last Minstrel.” It is noteworthy

that, in spite of his position and presumed education, the Deacon’s

spelling is more remarkable for originality than accuracy. His friends’

“aplication above,” however, proved unsuccessful, and the inevitable end

had to be faced.

[Illustration: The Old Tolbooth of Edinburgh, showing the beam upon

which criminals were executed.

(From a Drawing by D. Somerville.)]

Deacon Brodie continued to bear up bravely, referring to his approaching

exit as “a leap in the dark,” and is said to have only once broken down,

when he was visited by his eldest daughter, Cecil, on the Friday before

his execution. On the Sunday preceding his death, the other two

prisoners, Falconer and Bruce, who were to have been executed on the

same day, were granted a respite of six weeks. Smith observed that six

weeks was but a short time; whereupon the Deacon exclaimed, “George,

what would you and I give for six weeks longer? Six weeks would be an

age to us!” On the Tuesday he was visited by a friend, when, we are

told, “the conversation turning upon the female sex, he began singing

with the greatest cheerfulness from the ‘Beggar’s Opera’ ‘‘Tis woman

that seduces all mankind,’ &c.”

The “Beggar’s Opera,” the well-known work of the poet and dramatist,

John Gay, appears to have been a special favourite with the Deacon, for

it will be remembered that he sang a stave from it on the night of the

robbery of the Excise Office. The opera was frequently performed at the

Old Theatre Royal, Edinburgh, at this period, and he had, no doubt, had

many opportunities of hearing it. Commenting on this incident, the

_Edinburgh Advertiser_ remarks--“Brodie seemed to take the character of

Captain Macheath as his model, and the day before his death was singing

one of the songs from the ‘Beggar’s Opera.’ This is another proof of the

dangerous tendency of that play, which ought to be prohibited from being

performed on the British stage. It is inconceivable how many highwaymen

and robbers this opera has given birth to.” The editor of the

_Advertiser_ was evidently less gifted with a sense of humour than the

Deacon, and had never read Fergusson’s lines “To Sir John Fielding, on

his attempt to suppress the ‘Beggar’s Opera.’”

* * * * *

On the night before the execution, Deacon Brodie complained of the noise

made by the workmen in effecting the alterations on the gibbet

necessitated by the reprieve of the other prisoners, Falconer and Bruce;

and it is stated in a contemporary report of the trial, published by

Robertson on 2nd October, 1788, the day after the execution, that Brodie

then said “he planned the model of the new place of execution, he

purchased the wood, and gave his assistance in finishing it--but little

did he imagine at the time that he himself would make his exit on it.”

The _Edinburgh Advertiser_ of 3rd October, 1788, describing the

execution, says--“It is not a little remarkable that Brodie was the

planner, a few years since, of the new-invented gallows on which he

suffered”; and Robert Chambers, in his “Minor Antiquities of Edinburgh,”

(1833, p. 168), remarks--“As the Earl of Morton was the first man

executed by the ‘Maiden,’ so was Brodie the first who proved the

excellence of an improvement he had formerly made on the apparatus of

the gibbet. This was the substitution of what is called the ‘drop’ for

the ancient practice of the double ladder. He inspected the thing with a

professional air, and seemed to view the result of his ingenuity with a

smile of satisfaction.” William Chambers, however, in his “Book of

Scotland” (1830, pp. 327-8), takes a different view, holding that the

drop was first employed at Newgate in 1784, and had already been used in

Edinburgh at an execution in 1785.

Popular tradition, with a fine sense of the requirements of poetic

justice, has steadfastly held that Deacon Brodie was the first to test

the efficacy of the drop which he himself invented, and was thus, in a

double sense, the artificer of his own downfall. And although such a

circumstance would be well in keeping with the Deacon’s singularly

dramatic career, it must unfortunately be dismissed as a picturesque

improvement on the literal truth.

A careful examination of the Council records discloses the following

facts, now for the first time published:--On 18th August, 1784, the Town

Council remitted to Convener Jameson (mason), Deacon Hill (wright), and

Deacon Brodie to inspect the west wall of the Tolbooth and consider in

what manner a door or passage could be made in order that criminals

might be executed there, and to report. Up till that time all public

executions had taken place in the Grassmarket at the foot of the West

Bow; and it was now proposed that criminals should be executed upon a

platform to be erected on the low building which projected from the west

gable of the Tolbooth. The report of the committee on the subject does

not appear on the record; but in September the new Council was elected

for the ensuing year, and Deacon Brodie was not chosen a member of it.

On 24th November, 1784, “pursuant to a late remit to the Magistrates to

consider as to fitting up a place adjoining to the Tolbooth of this city

for the execution of criminals,” estimates by Convener Jameson and

Deacon Hill (who were members of the new Council) were accepted for the

mason and wright work respectively. On 11th April, 1785, estimates by

the same two Councillors were accepted for rebuilding the shops affected

by the proposed alterations, “exclusive of the wright work for the

platform and the machinery for an execution, conform to a former

estimate.” On the 13th of the same month, the Dean of Guild having

inspected the work and reported favourably upon it, the magistrates

passed an Act of Council appointing the west end of the Tolbooth to be

the common place of execution in all time coming; and ordained Archibald

Stewart, then under sentence of death for housebreaking, to be executed

there in pursuance of his sentence. The execution was accordingly

carried out on 20th April, 1785, but not, it would appear, upon the

moveable platform or drop. On 7th September of that year, five months

after Stewart’s death, the Council for the first time authorised Deacon

Hill “to make a _moveable_ platform for the execution of criminals in

terms of his estimate”; and among certain accounts ordered to be paid by

the City Chamberlain on 13th September, 1786, we find one due “To Thomas

Hill for erecting a _second_ platform, west end of the Tolbooth,

twenty-one pounds, seven shillings and elevenpence halfpenny”--his

account for the former work being also mentioned.

This was, without doubt, the drop upon which, two years later, Deacon

Brodie was to suffer the penalty of the law. It is possible, and indeed,

from the contemporary evidence already quoted, probable that he himself

designed the model, adopting the improvement recently introduced in

England. He may even have sent in an estimate for the work, but, as he

was not that year a member of Council, Deacon Hill had the better chance

of securing the contract, and certainly obtained it.

It was, therefore, on the platform above referred to that the execution

of William Brodie and George Smith took place, at half-past two o’clock

on the afternoon of Wednesday, 1st October, 1788, in presence of an

immense crowd of spectators, great numbers having come from all parts of

the country to witness the event. The _Caledonian Mercury_

observes--“The crowd on this occasion was the greatest ever known; the

whole space from the prison to the Castle Hill being filled with

spectators, pressed together in one compact and immoveable column.” The

proceedings were conducted with more than usual solemnity; the

magistrates attended in their robes of office, “with white gloves and

white staves”; ministers of divers denominations were present in their

gowns and bands; and the City Guard formed a cordon round the place of

execution. We read that “the great bell tolled during the ceremony,

which had an awful and solemn effect.” This is said to have been the

first occasion of the kind on which the bell of St. Giles’ Church was

tolled. It is characteristic of the man that, on his last public

appearance, we are informed, “Mr. Brodie appeared in a handsome suit of

black clothes, and had his hair powdered and dressed with taste.” Twice,

owing to some defect in the adjustment of the ropes, did the Deacon

descend from the platform and enter into conversation with his friends;

but, notwithstanding this dreadful delay, his fortitude remained

unshaken, and he met his fate with a courage and equanimity worthy of a

better cause:

Nothing in his life

Became him like the leaving it.

With his hand thrust carelessly into the open front of his vest, as we

see him in his portrait, the Deacon calmly took that step out of the

world which his own ingenuity is said to have shortened.

The _Edinburgh Evening Courant_ of 2nd October, 1788, voices the popular

sentiment of the time as follows:--“Thus ended the life of William

Brodie, whose conduct, when we consider his situation in life, is

equally singular and contradictory. By the low and vicious connections

he formed he had everything to lose--he could gain little even if

successful; for, from the moment he embarked in the enterprises of his

desperate associates, his property, his life, was at their mercy.

Indeed, his crimes appear to be rather the result of infatuation than

depravity; and he seemed to be more attracted by the dexterity of

thieving than the profit arising from it. To excel in the performance of

some paltry legerdemain or slight-of-hand tricks, to be able to converse

in the cant or flash language of thieves, or to chant with spirit a song

from the ‘Beggar’s Opera,’ was to him the highest ambition. Those who

knew him best agree that his

[Illustration: Deacon Brodie.

(_After Kay._)]

disposition was friendly and generous, and that he had infinitely more

of the dupe than the knave in his composition; and was, indeed,

admirably fitted for designing and wicked men to work upon.” The Deacon,

even in his own day, did not lack apologists. And though there may be

some diversity of opinion regarding the precise shade which that unhappy

gentleman had stained a character in other respects not without

redeeming traits, there can be none as to the monstrous injustice of the

penalty exacted by the law for his offence. In these more merciful

times, when conscientious juries hesitate to convict the guilty upon a

capital charge, and rather than deliver a fellow-being to an irrevocable

doom will sometimes evade responsibility by the _via media_ of “not

proven,” it is difficult to realise the callous indifference to human

life for which our criminal code was formerly notorious. At that period

a man might, literally, as well be hanged for a sheep as for a lamb; and

that the Deacon should suffer a punishment so disproportionate to his

deserts would, however repugnant to modern feeling, seem natural enough

to his stoical contemporaries.

* * * * *

In explanation of the singular degree of coolness exhibited to the last

by Deacon Brodie, a curious story became current. Much anxiety had

undoubtedly been shown both by himself and others that his body might

not be detained in prison, but should be delivered to his friends so

soon as the execution had taken place. With this view the Deacon, on the

forenoon of the fatal day, addressed to the Lord Provost the following

remarkable letter:--

“Edinburgh Tolbooth,

“Oct. 1, 1788, Eleven o’clock.

“My Lord,

“As none of my relations can stand being present at my dissolution,

I humbly request that your Lordship will permit ---- to attend, it

will be some consolation in my last hour; and that your Lordship

will please give orders that my body after be delivered to and by

no means to remain in gaol; that he and my friends may have it

decently dressed and interred. This is the last request of

“Your most obedient

but most unfortunate,

WILL. BRODIE.”

“Both of which requests,” we are told, “his Lordship most readily

granted.” It is said, by the author of the letterpress in “Kay’s

Portraits” (1877, vol. 1., pp. 262-3), on the authority of an

eye-witness of the execution, that Brodie had been visited in prison by

a French quack, Dr. Peter Degravers, who undertook to restore him to

life after he had hung the usual time; that, on the day preceding the

execution, this individual had marked the Deacon’s temples and arms with

a pencil, in order to know the more readily where to apply his lancet;

and that with this view the hangman had been bargained with for a short

fall. “The excess of caution, however, exercised by the executioner in

the first instance in shortening the rope proved fatal by his

inadvertency in making it latterly too long. After he was cut down his

body was immediately given to two of his own workmen, who, by order of

the guard, placed it in a cart and drove at a furious rate round the

back of the Castle. The object of this order was probably an idea that

the jolting motion of the cart might be the means of resuscitation, as

had once actually happened in the case of the celebrated ‘half-hangit

Maggie Dickson.’ The body was afterwards conveyed to one of Brodie’s own

workshops in the Lawnmarket, where Degravers was in attendance. He

attempted bleeding, &c., but all would not do. Brodie was fairly gone.”

The irregular practitioner above mentioned was certainly in Edinburgh

about that time, for we read in the newspapers of the day

advertisements, which he issued from his rooms in Charles Street,

offering his professional services to the public at the moderate fee of

half-a-crown “in all cases.” Judging by the testimonials from grateful

patients which he also published, the doctor must have given wonderful

value for the money; but in the somewhat exceptional circumstances of

the Deacon’s case he would, if successful, have surely been entitled to

a larger fee.

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