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.

[Sidenote: 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.

Trial of Deacon Brodie · 第 16 / 29 段