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.