place, the evidence of Brown and Ainslie, who have acknowledged
themselves guilty of the crime in question, and are the sole witnesses
brought forward directly to fix the guilt on the prisoner; in the second
place, in opposition to this there stands the direct proof of _alibi_,
established by a number of unexceptionable witnesses; and lastly, the
evidence arising from the various circumstances which are said to
support and confirm the direct testimony of Brown and Ainslie, which,
independent of such confirmation, is admitted to be deserving of little
credit. Upon each of these parts I shall submit to you some remarks,
trusting that you, gentlemen, and the honourable counsel on the other
side of the bar, will correct me should I happen in any instance to
mistake the import or nature of that proof which has been led in your
hearing.
Upon the first part I have already, in the course of the trial,
anticipated almost everything which relates to the evidence of Brown and
Ainslie; I should therefore be ashamed to trouble you with more on that
subject. I do not say that their being themselves accused of the crime
in question should be a ground for totally rejecting their testimony,
which the Court, proceeding on the present law and practice of Scotland,
has allowed to be received. But this I will with confidence maintain,
that the evidence of persons who, in the very outset of their testimony,
confess the most enormous crimes, and thereby cover themselves with
infamy as completely in the eye of reason as if they were convicted by
sentence of a jury, can in no case be entitled to much credit, and when
standing by itself is deserving of none at all.
But it is not on this alone that I impeach the testimony of these bad
men; they stand in a situation different, very different, indeed, from
other witnesses of that description--a situation to which I again
entreat your best attention.
When Ainslie was first examined before the Sheriff, and for a long time
afterwards, he persisted in maintaining the innocence of Mr. Brodie;
nor was it till he learned that Brodie was apprehended, and till he was
informed that to criminate him was the only means of saving his own
life, that he uttered a syllable tending to infer the guilt of my
client. This we offered to prove in the course of the trial, but a proof
was refused by the Court.
The first testimony, therefore, which he gives in the matter is
deliberately false. Is his after-information, or the evidence he has
given this night, the better to be believed that it was wrung from him
by the fear of death, or brought out of him by the hopes of life? It is
vain to say that there is no proof that such means were used with him.
There is real evidence that under these impressions he must have been
when he delated Mr. Brodie. Well did he know that Mr. Brodie, from his
unhappy connection with him and his associates, was suspected of being
accessory to their guilt. He was not so blind as not to see that to the
public prosecutor, whose duty it ever is to choose from various
associates those whose situations make them the most striking examples
of public justice, to accuse and convict such a person as Mr. Brodie was
effectually to secure his own life.
It was a situation too powerful to be overcome even by much more virtue
than the witness could boast of, and, unhappily for Mr. Brodie, his
connection with the witness in scenes of another kind, while it
suggested the accusation, procured it credit. I cannot ask you to
believe without evidence that such a plot was laid, nor am I entitled to
charge it. But surely witnesses in such circumstances should not lightly
be believed. And doing so may lead to consequences of the most dreadful
nature, as every man, unfortunate enough to have been innocently,
perhaps, the companion of villains, may thus by falsehood and treachery
be made their substitutes to the offended laws of their country.
Ainslie’s evidence, therefore, in such a situation, is not only
suspicious, but altogether incredible.
The evidence of Brown is, if possible, still more unworthy of credit
than that of Ainslie. A more hardened and determined villain can hardly
be figured. You saw, gentlemen, the manner in which he gave his
evidence. He appeared more like a man rehearsing and expatiating upon
the patriotic acts he had performed for the good of his country than a
criminal unfolding the black history of his own iniquities. You have it
in proof that he was not only accused but convicted of a former felony,
and sentenced to be transported; that a presentment by the grand jury
stands yet against him for another felony; and that he was banished for
theft by a sentence of the Justices of Peace of Stirlingshire,
proceeding on his own confession.
He has no doubt received His Majesty’s pardon. It has been obtained for
him, at a very great expense, for the sole purpose of enabling him to
be a witness in this cause. But though the Court has determined that
this pardon, the crimes being committed in England, rehabilitates this
man, and that his evidence is admissible; yet no pardon can restore his
credibility, or render him an honest man. The pardon cannot alter the
nature of the criminal; “can the Ethiopian change his skin, or the
leopard his spots?” Is it possible that a King’s pardon can restore
purity of heart, rectitude, and integrity? Can “a piece of parchment
with a seal dangling at it,” a phrase employed on another occasion,
perhaps with less force of application, turn wickedness into honesty,
and transmute infamy into honour? The King has no such prerogative; this
is the prerogative of the King of Kings alone, exerted only towards
repenting offenders; and even with Him such change may well be accounted
a miracle.
In the eye of reason, therefore, Brown is still a notorious convicted
felon, an infamous, unrepenting villain, who, till the 28th July last,
the date of the pardon, would not have been received as a witness even
in a twopenny-halfpenny cause between man and man. And yet upon this
evidence is now to depend the reputation and life of a once respected
citizen! These things need only to be mentioned, gentlemen, in order to
be fully felt, nor will I insult the understanding of so intelligent a
jury by dwelling upon them for a moment longer.
But this, gentlemen, is not all. Mark the game which this man had to
play, and in what manner he has played it. He had not, like Ainslie,
only his accession to this offence to shake himself loose of; a sentence
of transportation hung over his head. This sentence he has not obeyed;
and the penal certification is in England, I suppose, as it is with us,
capital. By accusing a person of such consequence as to make it worth
the while of the servants of the Crown to make him King’s evidence, he
not only freed himself from trial for the offences committed here, but
secured a pardon for the offence of which he stood convicted, as it was
necessary, to qualify him to be a witness, that his former conviction be
done away, and all his former crimes washed off in the fountain of Royal
favour. A bribe of such magnitude flesh and blood could not resist.
Thus, gentlemen, in addition to the profligacy of character, to the load
of infamy under which this man laboured, you see the most powerful
engines which can set in motion the human soul employed to drag him
forward to an accusation which he had not originally made, and which,
but for this, his conscience, hardened as it is, might have prevented
him from ever making.
The Lord Advocate was pleased to commend this witness, as having spoken
out from a desire of doing justice and being of service to his country.
Did his appearance this day indicate any such feelings? Do not the
circumstances in which he brought forward this accusation show the
baseness of his views? He has sworn that at first he did not accuse Mr.
Brodie. No; it was not till his return from England that he took this
course, when, finding that the sacrifice of mean victims was not leading
to any steps being taken to procure him a pardon, and that the other
unhappy prisoner at the bar had confessed his own guilt, but without
accusing Mr. Brodie, he (Brown) gave the lie to his first declaration by
criminating that gentleman; and the pardon, which has this day procured
admission to his testimony, was obtained for him. The measures of the
public prosecutor in this respect were highly proper, believing, as he
no doubt did, the testimony of this man. But I leave it to you,
gentlemen, to consider whether it is possible for any witness to stand
in more suspicious circumstances; and whether, as several of the judges
have told you, that had his conviction been in Scotland instead of
England, they would have rejected his testimony, notwithstanding the
pardon, you should not so lay aside his evidence altogether in justice
to the prisoner, who ought not to suffer for a distinction which,
however founded in law, is contrary to common sense or reason when
applied to the credibility of the witness, of which you alone are the
judges.
I come now, gentlemen, to the direct proof of _alibi_. And here I
readily confess that a proof of _alibi_ is generally resorted to only
upon the most desperate occasions; and that such proof, when it is in
contradiction to facts clearly substantiated by real evidence or parole
testimony beyond all suspicion, must yield thereto. But, gentlemen, this
is by no means the case here. The _alibi_ is established by the most
direct and complete proof, in opposition to which nothing direct appears
in evidence, unless the testimony of two witnesses, entitled to no
credit from their characters, and swearing in circumstances the most
suspicious. There are, indeed, other circumstances proved; with regard
to which I am to address you afterwards. But these, if the depositions
of Brown and Ainslie be laid aside, must appear to you so light when
weighed against this evidence of _alibi_ that they must kick the beam.
The _alibi_, gentlemen, is thus proved.
You have, in the first place, the evidence of Mr. Sheriff. This
gentleman, no doubt, is brother-in-law to Mr. Brodie; and it may be said
that this circumstance renders his evidence suspicious. But Mr. Sheriff,
gentlemen, is well known to many of you as a man of character and
reputation, as a person of unblemished conduct, in a rank of life equal
to many of yourselves. And I appeal to you, gentlemen of honour as you
are, whether any of you, judging of this witness, as you would wish to
be judged of yourselves, would for a moment indulge the thought that
even to save the life of his wife’s brother he would deliberately come
forward to cast away his own soul? This gentleman deposes most expressly
that he dined at Mr. Brodie’s house on Wednesday, the 5th of March, the
day on which the Excise Office was broke into, in company with two
ladies and another gentleman; that he staid there till about eight
o’clock; that Mr. Brodie during all that time was never absent from his
company; and that he even asked the witness to stay supper.
Here is a direct contradiction to the evidence of Brown, who swore that
Brodie called at Smith’s in the afternoon of that Wednesday. Which of
the two, gentlemen, are you to believe? But it is needless for me to ask
the question. Were even the former circumstances urged against the
credibility of this man’s evidence not sufficient, you have him here
convicted of the grossest perjury, if Mr. Sheriff is to be believed; for
that gentleman has expressly sworn that they dined at a quarter past
three o’clock, and that Mr. Brodie never left the company while the
witness staid, which was till near eight o’clock.
It was asked on the other side of the bar how Mr. Sheriff, at this
distance of time, came to recollect so precisely that it was upon
Wednesday, the 5th of March, he dined with Mr. Brodie? The answer is
obvious. It was publicly known upon the Monday following, and the
witness has sworn he knew it, that Mr. Brodie was accused of being
concerned in the robbery of the Excise Office. Was it not then
natural--nay, would not the contrary have been altogether
incredible--that Mr. Sheriff, having only four days to look back, should
be able to recollect in a matter that touched so deeply the character,
and might affect the life, of so near a relation, that he dined with him
that very day on which that felony was perpetrated? Which of you,
gentlemen, could not at this time recollect where you dined last
Saturday or Sunday, and the precise time at which you left the company?
If, therefore, Mr. Sheriff is to be believed, and why he should not no
reason can be suggested, the prisoner could not be present, as Brown and
Ainslie have deponed he was, prior to the time Ainslie left Smith’s to
go to the Excise Office; which Ainslie has fixed at a quarter before
eight; nor could he be with them at Smith’s at all, as Brown swears they
all left it a quarter of an hour after Ainslie, and immediately joined
him at the Excise Office.
But Jean Watt depones that Mr. Brodie came to her house at eight o’clock
on the Wednesday evening, when the eight o’clock bell was ringing; her
reason for recollecting these circumstances, too, is a very good one, it
being the last time that ever Mr. Brodie slept in her house. Her
evidence is corroborated by the servant-maid, who depones exactly to
the same purpose. And there is a circumstance, gentlemen, in the
deposition of this witness which well merits your attention. Upon being
asked what bell was ringing, she said it was the bell of the Tron
Church. Here the counsel on the other side of the bar appeared to hug
themselves upon the mistake into which they supposed she had fallen, by
mentioning a bell which, from the distance, she could not possibly hear.
But the matter was cleared up in a moment, when, on being asked where
the Tron Church was, she replied, in the Parliament Close. This,
gentlemen, is the natural simplicity of truth; this proves her to be no
tutored witness, brought forward to rehearse a tale made up beforehand,
or to assign fictitious causes of knowledge.
Both these witnesses concur in deposing that Mr. Brodie staid the whole
night until next morning at nine o’clock in Mrs. Watt’s house; and their
evidence is corroborated by that of Helen Alison, who saw him coming
down stairs at nine on the Thursday morning. The evidence of this good
woman, Helen Alison, is accompanied with circumstances the most natural
and striking, and is confirmed by James Murray, one of the
sheriff-officers employed in the search on the Thursday morning, who
swears to her having at that time mentioned Mr. Brodie’s having been at
Jean Watt’s all the night of the Wednesday and morning of the Thursday
preceding.
The whole of this evidence, taken together, affords a proof the most
conclusive that Mr. Brodie could not be present at the robbery of the
Excise Office. You find him in his own house till the hour of eight;
from that hour till nine on the Thursday morning you find him in the
house of Mrs. Watt. It is impossible then that he could have been at
Smith’s a considerable time before the hour of eight, or that he could
have been present at a robbery which took up an hour in the
perpetration.
It was said, on the other side of the bar, that it was of no avail to
prove an _alibi_ which was merely confined to the city. This is strange
doctrine, gentlemen, and perfectly new. That an _alibi_ may be proved
with greater certainty when the distance is greater than when it is
small, I do not dispute; but does it follow that it may not be proved
though the distance be ever so short? Suppose a felony to have been
committed this day under that window, and that I should be accused of
having been an actor in it. Could not I, gentlemen, bring sufficient
evidence of an _alibi_, although within a few yards of the place where
it was perpetrated? Could I not substantiate, by this numerous and
respectable assembly, that I was here from nine in the morning till the
present hour, employed in such a manner as to exclude the possibility of
my being any way concerned in such felony? And could it be objected to
such evidence that I had not proved myself absent from town, and that
my _alibi_ was confined to within a few feet of the place where the fact
was committed?
It is to no purpose to say that the witnesses may not be accurate as to
time, and that, making a small allowance for mistakes, the facts they
swear to may be true, consistently with the evidence of Brown and
Ainslie. For supposing Mr. Sheriff to have been mistaken as to the
precise time he left the prisoner that night, he could not be mistaken
as to his being constantly with him from the time of dinner till the
time he left him, whatever it was; and this alone must defeat the
testimony of Brown and Ainslie, who swear to the prisoner’s having been
there in the afternoon long before the meeting, previous to their
setting out for the Excise Office, which cannot possibly be true, if Mr.
Sheriff’s evidence is to be believed.
Here, then, is the most unequivocal and positive proof that the
prisoner, Mr. Brodie, could have no accession whatever to this robbery
of the Excise Office, unless you, gentlemen, shall conclude that the
whole of these witnesses, consistent as they are and corroborated by
circumstances the most simple and natural, have perjured themselves
wilfully and deliberately; while Brown and Ainslie, witnesses, from
their character, unworthy of all belief and swearing in circumstances
the most suspicious, are deponing in the utmost purity of truth and
fairness.
Thus, then, gentlemen, the case would stand were it to be decided on the
direct testimony of the witnesses on both sides weighed against each
other. The circumstantiate proof, however, still remains to be
considered, and I am free to confess that if it shall appear to you that
these circumstances afford a chain of real evidence, either sufficiently
independent of the direct depositions of Brown and Ainslie to prove the
prisoner’s guilt, or so fully to confirm their testimony as to remove
the cloud of suspicion that hangs upon it, as to convince you that they
must be speaking the truth and the witnesses to the _alibi_ the reverse,
your verdict ought to be against the prisoner.
But I humbly maintain that not any of those circumstances nor all of
them put together are sufficient to entitle the evidence of such
witnesses to credit, when the life of a man is at stake, even if the
proof of _alibi_ were out of the question, and far less in the face of
that proof of _alibi_, which, if the witnesses have not deliberately
perjured themselves, excludes even the possibility of the prisoner’s
guilt. For I hope to show that there is not one of those circumstances,
suspicious as they may appear, that cannot rationally be accounted for
without supposing the guilt of the prisoner, Mr. Brodie; nay, that some
of them are totally inconsistent with the supposition of his having been
guilty of this offence, whatever other errors his fatal connection with
these miscreants may have led him into.
In considering the circumstantiate evidence, gentlemen, you are never to
lose sight of the direct proof I had the honour just now of stating to
you as to the _alibi_; and as each circumstance passes under your
review, I entreat you to ask yourselves this question, whether it is so
clear, so decisive, so totally irreconcilable with the possibility of
the prisoner’s innocence as to make the suspicious testimony of those
infamous witnesses outweigh the proof of _alibi_, founded on the
depositions of persons liable to objections on no reasonable suspicion?
The first circumstance founded on is the prisoner’s connection with the
perpetrators of this crime. I readily grant that it is clear from the
evidence that Mr. Brodie was in habits of too great intimacy with these
men. I acknowledge that he appears to have been too deeply engaged in
courses of gambling and dissipation in their company and society. That
his association with such characters was dishonourable to the reputation
of my client, I do not deny.
But, gentlemen, this gambling connection is far from being any proof of
his share of the guilt of the crime now charged against him and the
other prisoner at the bar, though this circumstance, no doubt, gives
possibility to a tale that, without it, would have been rejected at once
as totally incredible. Had Mr. Brodie been in no way connected with
Brown, Ainslie, and Smith, what could they have accused him in? When the
hopes of life were held out to Brown and Ainslie, in order to procure a
discovery of their confederates, however willing they might be to
deceive the public prosecutor, they would have themselves seen that it
was in vain to accuse a man as their associate who had never at any time
been connected with them.
But though his having connected himself with them afforded a plausible
colour to their charge, it does not follow that this connection affords
either a proof or a presumption of Mr. Brodie’s guilt; it is to be
considered rather as the cause of his being accused. Many other persons,
otherwise very respectable, are known to have gamed in company with
these very men, but would this have been sufficient to criminate them
had Brown and Ainslie thought proper to give them also up as their
confederates in this dark business? The folly of haunting, for any
purpose whatever, the company of such men is great indeed, but to
subject the party guilty to the consequence of every enormity of which
such associates may accuse him, on their bare testimony alone, would be
a punishment far beyond the offence, as such men would never fail to
find some unhappy associate of better rank than themselves to substitute
as a sacrifice to the public for crimes to which he had no accession.
The next circumstance founded on in corroboration of the evidence of
Brown and Ainslie, is the alleged proof by the oath of Grahame Campbell
that Mr. Brodie was present with the gang at the house of Smith on the
night the Excise Office was broken into, and left it in their company.
The veracity of this witness I mean not to dispute, but I maintain it to
be impossible that, if she be speaking the truth, the facts she swears
to could happen upon that night, or if she did, it must be fatal to the
whole evidence given by Brown and Ainslie, as it contradicts them in the
most essential particulars.
This witness indeed swears that one night--for she fixes no precise
time--soon before Mr. Brodie left this place, he, Brown, and Ainslie met
at Smith’s house before six o’clock; that they all left it about six;
that between nine and ten they all returned; that they supped there, and
remained about two hours. And she remembers particularly that Brown and
Ainslie sat down to supper, but that Mr. Brodie stood all the time they
ate their meal. But Brown and Ainslie expressly swore that, after coming
out of the Excise Office, they did not see Mr. Brodie again that night,
and that Brown did not meet with him till the Friday, when he for the
first time got an opportunity of abusing him for having left his post.
She differs from them also as to Mr. Brodie’s dress, which she says was,
when he came, an old-fashioned black coat, whereas Brown says it was his
ordinary black coat, and that he wore a white surtout above it. Both
these opposite stories cannot be true, and consequently the young woman
has deponed to what happened on a different night, and her evidence does
not corroborate that of Brown and Ainslie; or, if she swears to that
night, she swears to facts totally inconsistent with the truth of part
of their evidence at least, and thereby destroys the credibility of the
rest of it.