regard to their supping, because she has also said that they had ate
some fresh herrings or cold fowl before setting out. I cannot, for my
part, see how their having taken this collation early in the evening can
be any reason for their not supping betwixt nine and ten. And, at any
rate, though she could have mistaken the smaller circumstance of their
eating or not eating after their return, it is utterly incredible that
she should have recollected their all being at Smith’s together between
nine and ten, and continuing together for two hours if, as Brown and
Ainslie depone, they and Mr. Brodie never met that night after the time
the two former went into the Excise Office.
The next circumstance founded on by the prosecutor is the departure of
Mr. Brodie from this country, which is not only held out as a flight
from justice, but as a flight applicable to this particular offence.
That the flight of a person accused of a crime may in some cases be a
strong ingredient in a proof of his guilt, I readily acknowledge, but
it is not necessarily so. If he has not been previously accused of that
particular crime, and other reasons occur sufficient to account for his
leaving his native country, the circumstance is at best equivocal.
In this case it cannot be denied that Mr. Brodie had strong reasons for
taking this step separated from any consideration of guilt connected
with this offence. His gambling connection with these men was too well
known, and though nothing further could be proved against him, it must
be a painful feeling for a man of any spirit to remain in that place
where persons with whom he had been so intimate were taken up by public
justice on charges of so heinous a nature. Joined to this, you find in
evidence that a prosecution was depending before the magistrates of
Edinburgh against my client for using loaded dice. I do not say, nor do
I suppose that this prosecution was well founded, but the very report of
such a charge, when added to the connection he had with these men, must
have rendered his situation so disagreeable as to induce him to leave
Edinburgh, at least for a time, or even to have resolved on settling in
some foreign country, where his former folly and dissipation were
unknown and where his professional skill might enable him to repair his
shattered fortune. What were the real motives of Mr. Brodie it is not
for man to judge, but, if his actions were equivocal, you are bound in
charity, in justice, in humanity, to put the most favourable
construction upon them.
Yet even when he abandoned this country, he does not appear to have
conducted himself as one who never intended to return, or who was afraid
of any consequences to himself, beyond the pain of enduring in his own
country the loss of honest fame. He corresponds, as you find, with his
friends in Edinburgh, and the whole tenor of his conduct seems to be
such as might have been pursued by a person who intended only to retire
out of view for a short time, till the clamour of a prejudiced public
against him should cease. A flight under such circumstances and
conducted in this manner can never be held as proof of guilt, or even as
a circumstance sufficient to stamp credibility on the testimony of a
witness base and profligate beyond all example, deponing under the
strongest temptations to falsehood, unsupported by the direct testimony
of any other witnesses, and directly contradicted by a proof of _alibi_,
proved by a cloud of witnesses altogether free from suspicion.
With regard to the circumstance attending Mr. Brodie’s departure, his
conduct in London, on shipboard, and on the Continent, the evidence
adduced by the prosecutor is in the highest degree lame and
inconclusive. Indeed it ought totally to be rejected as not the best the
prosecutor had it in his power to bring; and as to his being brought
back to this country, the evidence is very defective. The evidence of
Mr. Longlands consists chiefly of hearsay. Those persons who apprehended
Mr. Brodie, who conducted him back to this country, are not produced as
witnesses. Mr. Walker, who is said to have protected him in London; the
owners of the ship, who are said to have altered the destination of the
vessel to aid his flight; none of them are brought forward. And as
hearsay evidence is only competent where the principal witness is dead
or cannot be had, neither of which is here the case, I submit to you,
gentlemen, whether any part of this evidence ought to have been received
or ought now to be regarded by a jury.
I come now to the evidence arising from the letters said to be written
by my client. Gentlemen, urgent as his case may be, I do not wish to
strain anything or to evade any part of the proof. I do not mean to
contest that these letters are of the handwriting of Mr. Brodie,
although this point has been but slenderly proved. My client has not
himself denied them; I shall admit them to be his. Now these letters
contain nothing which can bring home to him the present charge. They
prove that he was avoiding his native land; that he was anxious for the
fate of these abandoned men; that he was afraid they might accuse him;
but he expressly supposes a false accusation--an accusation that might
equally involve the innocent persons he was writing to. In one passage
he expressly asserts his own innocence. Yet the letters are written in
full confidence, and without any seeming intention to hide anything.
It is true, indeed, that in one of these letters he says that he had no
accession to any of their depredations except the last, which is laid
hold of as a direct acknowledgment of the crime. But, gentlemen,
supposing the word depredation could not be otherwise explained, where
is the evidence that the crime in question was the last of which these
abandoned ruffians were guilty? and if there were such, it would not be
conclusive. The word depredation is generic, and may as well apply to
the depredations of the gaming-table as to acts of theft or
house-breaking; and as there is but too much reason from the evidence,
particularly the process at the instance of Hamilton for defrauding him
by false dice, to believe that this unhappy man was not altogether free
from accession to depredations that may at the gaming table have been
committed by those persons against such as were unfortunate enough to
fall into their hands, why should you, gentlemen, to reach the life of a
fellow-citizen, construe so equivocal an acknowledgment, couched in so
general terms, as applicable to a particular act of guilt; for the proof
of which, against this prisoner, you have nothing but the most
exceptionable of all human testimony, contradicted by the most direct
proof of _alibi_.
But this is not all. The terms of this acknowledgment, as repeated in
the last of these two scrolls, exclude even the possibility that the
prisoner could refer, or mean to refer, to the breaking of the Excise
Office as the depredation to which he had an accession; for he expressly
says that he lost ten pounds by it; but how, in the nature of things, is
it possible that if he had been concerned in that affair he could have
thereby lost ten pounds, or any sum whatever, seeing Brown and Ainslie
have both sworn that the money was fairly divided, and that each of the
parties concerned received four pounds and some old shillings for his
share? To what other act of depredation, and whether to any committed at
the gaming table, these words refer, it is not for me to suggest nor are
you, gentlemen, bound to inquire; though it would seem that depredations
at the gaming table are the only attacks upon the property of our
neighbour that can be attended with patrimonial loss.
It is enough to exclude these scrolls, and also the letters, from
operating as evidence of the prisoner’s accession to the crime with
which he is charged, that the only accession they acknowledge is
inconsistent with the possibility of his guilt; and if he has been so
far misguided as to have been concerned with those infamous persons in
anything beyond that gambling connection, which he has all along
admitted, it must have been some other offence not yet discovered, or
not hitherto made the subject of prosecution; which, not being charged
in the present indictment, could not have affected the prisoner, though
a proof of it had come out in the course of his trial.
The only remaining circumstance brought in aid of the direct parole
testimony is the different articles which have been found in the house
of the prisoner or elsewhere, and which the prosecutor has attempted to
connect with the commission of the act which is the subject of the
libel. On this head I shall detain you but a moment, there not being the
shadow of evidence to connect any one of them with the prisoner so as to
afford a presumption, and far less evidence, of his guilt.
A dark lanthorn was found in his house, but there is not the appearance
of evidence that it was used at the perpetration of the crime in
question, or was ever out of Mr. Brodie’s own house. The utensil itself
is perfectly innocent. The useful part of it was found in the cock-pen,
and it is well known that cocks are chiefly fed by candle-light. There
were keys and pick-locks found in his house, but it was proved that
these are the ordinary implements of his trade, and not one of those
have been sworn to as having been used by the villains, who best knew
and described the whole mystery of the iniquity. Nay, the only
instruments that were used on that occasion in opening the locks or
forcing the doors were found at the bottom of Allan’s Close or
Warriston’s Close by the officers of justice, led by the other prisoner
Smith to the hole in which they were concealed; and not one of those
articles, being two crows, a key, a pair of curling irons, a coulter of
a plough, and two wedges, is proved to have been in any way connected
with Mr. Brodie, the three first of which Brown and Ainslie admit were
carried to the scene of action by Brown and Smith, while the two last
were stolen by themselves from a field near Duddingston.
True, indeed, it is, that a pair of pistols, which these witnesses say
were the property of the prisoner, Mr. Brodie, were found in a fireplace
in his house; but it is proved by the same witness that these pistols
had not been in the prisoner’s hands for a month before, when he had
lent them to Smith; that they were in Smith’s possession on the night
libelled; and the sheriff-officers have proven that it was Smith himself
who dug out these pistols in Mr. Brodie’s house, which demonstrates that
it was he who hid them there--a circumstance not very reconcilable with
his considering Mr. Brodie as an accessory, as in that case he could not
have chosen a more improper place to conceal them. In case of discovery,
it would become the object of the earliest and most anxious search.
Gentlemen, these observations upon the proof on both sides I submit to
your most careful and deliberate consideration. You have on the one side
a direct and positive proof of _alibi_; which, if the witnesses are not
foresworn, must preclude the possibility of the prisoner’s guilt; and
that these witnesses have departed from the truth there is not the
shadow of reason to suspect. On the other hand, the whole direct
evidence against the prisoner is the testimony of two witnesses, who,
besides being destitute of all right to be believed as witnesses in any
case, have been brought to give evidence in the present in circumstances
of the very strongest temptation to convict my unhappy client whether
innocent or guilty, as, but for their having accused him, one or both of
them must have stood at this bar in his place. It is for you, gentlemen,
to consider, under all the circumstances of the case, to which of those
contradictory proofs you will adhibit your belief.
In the hands of an upright and intelligent jury I leave this unfortunate
gentleman, confident that whatever verdict you shall pronounce will be
the result of your ripest judgment, tempered, in case of doubt, with
that tenderness with which it becomes you to decide when the fame and
life of a fellow-citizen are at stake.
* * * * *
At half-past four o’clock in the morning the Lord Justice-Clerk
proceeded to charge the jury.
[Illustration: The Lord Justice-Clerk (Lord Braxfield).
(From an Engraving by Beugo after the Portrait by Sir Henry Raeburn.)]
The Lord Justice-Clerk’s Charge to the Jury.
[Sidenote: Lord Justice-Clerk]
The LORD JUSTICE-CLERK--Gentlemen of the jury, the crime which is
charged against the prisoners at the bar is of a kind the most hurtful
to society. The situation of the pannels, and particularly one of them,
is also exceedingly distressful. Mr. Brodie’s father, whom I knew, was a
very respectable man, and that the son of such a man--himself, too,
educated to a respectable profession and who had long lived with
reputation in it--should be arraigned at this bar for a crime so
detestable, is what must affect us all, gentlemen, with sensations of
horror. This unhappy situation seems to have arisen from a habitude of
indulging vices which are too prevalent and fashionable, but it affords
a striking example of the ruin which follows in their train.
That the Excise Office was broke into is not disputed. The question
therefore is, who broke into it? Was it the pannels?
Now, to ascertain this point you have, in the first place, gentlemen,
the evidence of Brown and Ainslie, and if they have sworn truth the
prisoners must be guilty. To the admissibility of these witnesses there
can be no objection. Were not evidence of this sort admissible, there
would not be a possibility of detecting any crime of an occult nature.
Had a corrupt bargain, indeed, been proved, by which they were induced
to give their evidence, there might have been room for an objection to
their admissibility. But no such bargain has even been alleged against
the public prosecutor in the present case. And as to their being
accomplices, this, gentlemen, is no objection at all. A proof by
accomplices may display, it is true, a corruption of manners, which
alone can render such proof necessary. But it is impossible to go into
the idea that their testimony is therefore inadmissible.
Nor is there, in the present case, any reason to suppose that they were
under improper temptations to give their evidence. Each of them was
separately called upon by the Court, and it was explained to each of
them that they ran no hazard unless from not speaking the truth, and
that their being produced as witnesses secured them from all punishment,
except what would follow upon their giving false evidence. Under such
circumstances, you cannot suppose, gentlemen, that they would be guilty
of perjury without any prospect of advantage to themselves, and merely
to swear away the lives of these prisoners at the bar.
Their credibility, to be sure, rests with you, gentlemen; and if you
find anything unnatural or contradictory in their evidence you will
reject it. But there is nothing in it unnatural or contradictory. The
principal objection was made against Brown, but his evidence is
corroborated by that of Ainslie, and the evidence of Ainslie is again
corroborated by that of Brown, and they are both corroborated by all the
other circumstances deposed to. With regard to Smith, you have the best
of all evidence against him, his own declarations, for it surely is not
to be imagined that any man would criminate himself contrary to the
truth. These declarations have been substantiated in your hearing, and
where a _corpus delicti_ is established, as in the present case, to
which these declarations refer, there cannot be a doubt of their being
the very best evidence, and therefore you can be under no difficulty of
returning a verdict against him.
Gentlemen, to be sure these declarations are not legal evidence against
Brodie. But they corroborate the evidence of Brown and Ainslie, who
swear positively against him.
The evidence of Grahame Campbell likewise corroborates that of these
witnesses. With regard to Mr. Brodie, she swears positively to his being
present with them, dressed in an old-fashioned suit of black clothes.
She seems, indeed, to be in a mistake about the prisoner’s having supped
at Smith’s house that night, but the rest of her evidence is clear and
explicit, and concurs precisely with what you have heard from the other
witnesses.
The evidence of Brown and Ainslie likewise corresponds exactly with the
deposition of James Bonar. Ainslie tells you that a man came running
down the close, and it appears that when he opened the door Brodie set
off with himself--and, indeed, to tell you the truth, I could not much
blame him; and Mr. Bonar tells you that he went down the close at the
very time when the robbery was going on, and that when he opened the
door a man stepped out, of a description that exactly corresponds with
the prisoner and the dress he had on that night.
It appears clear also, gentlemen, from the depositions of the
sheriff-officers, that several articles were found upon the search in
Brodie’s house, which Brown and Ainslie depose to have been used in the
robbery of the Excise Office; a pair of pistols, a dark lanthorn, keys,
pick-locks, &c., and many of these last such as never were employed by
Mr. Brodie in the course of his business. So that no doubt can remain in
your mind of the truth of the facts sworn to by these two men, which are
all consistent with, and corroborated by the other evidence.
The crime with which these prisoners are charged, gentlemen, was
committed on Wednesday, the 5th of March. Two persons were taken up for
it, and Brodie absconded. It is established by the evidence that he went
to London, was afterwards put on board a sloop at night, and carried to
Flushing; and that, upon search being made for him, he was apprehended
at Amsterdam and brought back to this country. Gentlemen, when a person
who is accused of a crime flies from justice, it affords a strong
presumption of guilt. An innocent man would not fly without just cause.
The prosecution against him for using false dice could not be the reason
of his flight. Nay, he tells you himself in his declaration that he
absconded because Smith and Ainslie were taken up.
The papers found in the trunk, gentlemen, and the two scrolls, all which
have been proved to be of Mr. Brodie’s handwriting, afford strong
evidence against him. In one of the scrolls there is a fair and full
confession of his direct accession to the robbery of the Excise Office.
He says, “He never was directly concerned in any of their depredations,
except the last fatal one.” This is even a confession of more than is
charged against him, for it must mean that he was concerned, though not
directly, in their other depredations. It is impossible, gentlemen, to
mistake the meaning of this expression, or that it can apply to anything
else than the breaking into the Excise Office.
With regard to the _alibi_, gentlemen, it is no doubt proved by the oath
of Mr. Sheriff that he was in Brodie’s company from three o’clock of
Wednesday, 5th March, till near eight at night, he having dined in Mr.
Brodie’s house that day along with three ladies, and a gentleman whose
name he does not recollect. But then this rests entirely upon his
evidence, and though I do not mean to say that he has sworn falsely, yet
he is not a witness _omni exceptione major_, above all exception, being
the brother-in-law of Mr. Brodie. Besides that, gentlemen, allowing the
evidence of Mr. Sheriff, he is still only a single witness, and even in
civil cases a fact cannot be established by the evidence only of one
witness, especially where it is not supported by any other
circumstances. At any rate, the evidence is not inconsistent with the
guilt of the pannel, for the Excise Office was broke into after eight
o’clock, and Mr. Sheriff was in his own house in St. James’s Square
about eight o’clock.
As to the evidence of Jean Watt, who swears that Brodie came to her
house that night at eight o’clock, you are to consider, gentlemen, that
although, to be sure, she is not his wife, yet she is his mistress; and
love is often as deeply rooted between persons of that kidney as between
lawful man and wife. And, as you see, gentlemen, that either she must be
mistaken as to the hour or that the witnesses on the other side must be
wrong, you are to determine with yourselves whether the witnesses for
the prosecution brought forward by the Lord Advocate, who has no
interest but to get at the truth, or this woman, and her servant-maid
who concurs with her, are most entitled to belief. And you can have no
doubt but that the presumption is greatly in favour of the witnesses for
the Crown, who can be influenced by no motives but those of public
justice.
This woman and her servant, Peggy Giles, have no doubt deposed that it
was eight o’clock when Mr. Brodie came to their house; but, gentlemen,
even supposing them to be swearing to what they think true, yet they
still may be mistaken with regard to the precise time; and the mistake
of an hour, or half-an-hour, would reconcile their evidences with the
other proof you have heard. There is a bell rings at ten o’clock as well
as at eight, and these witnesses may very probably have confounded the
one with the other; for I have no doubt that Brodie did come to that
house that night, and staid there till the next morning. Gentlemen, the
law itself makes allowance for mistakes of this kind. Thus in the civil
Court, in a competition between two arrestments, of which one, for
instance, is at eight and another at nine o’clock, they are preferred
_parri passu_, because the law supposes that the memories of witnesses
may be so frail as not to distinguish short intervals of time with
proper accuracy. So that you see, gentlemen, that even supposing these
witnesses were willing to speak the truth, yet their evidence is
completely reconcilable with the other depositions.
Upon the whole, gentlemen, taking all the circumstances of this case
together, I can have no doubt in my own mind that Mr. Brodie was present
at the breaking into the Excise Office; and as to the other man, Smith,
as I have already said, there can be still less doubt as to him. If you
are of the same opinion, gentlemen, you will return a verdict against
both the prisoners; but if you are of a different opinion, and do not
consider the evidence against Brodie sufficiently strong, you will
separate the one from the other, and bring in a verdict accordingly.
* * * * *
At about six o’clock on Thursday morning, the Lord Justice-Clerk, having
finished his charge to the jury, said that he hoped it would not be
inconvenient for them to return their verdict at twelve o’clock that
day; but, upon the suggestion of one of the jurymen, it was fixed to be
returned at one o’clock.
* * * * *
The Court then pronounced the following interlocutor:--
The Lord Justice-Clerk and Lords Commissioners of Justiciary ordain the
assize instantly to inclose in this place, and to return their verdict
in the same place at one o’clock this afternoon, continue the diet
against the pannels till that time, ordain the haill fifteen assizers
and all concerned then to attend each under the pains of law, and the
pannels in the meantime to be carried back to prison.
* * * * *
The Court then adjourned.
The Trial.
Second Day--Thursday, 28th August, 1788.
The Court met at one o’clock.
CURIA JUSTICIARIA S. D. N. REGIS, Tenta in Nova Sessionis domo de
Edinburgh, Vicesimo Octavo die Augusti millesimo septingentesimo
Octogesimo octavo, Per Honorabiles Viros; ROBERTUM M‘QUEEN de
Braxfield, Dominum Justiciarium Clericum; Dominum DAVIDEM DALRYMPLE
de Hailes, Baronetum; DAVIDEM RAE de Eskgrove; JOANNEM CAMPBELL de
Stonefield; et JOANNEM SWINTON de Swinton, Dominos Commissionarios
Justiciarae dict. S. D. N. Regis.
Curia Legitime Affirmata.
INTRAN. William Brodie, sometime Wright and Cabinetmaker in
Edinburgh, and George Smith, sometime Grocer there, both prisoners
in the Tolbooth of Edinburgh.
PANNELS.
INDICTED and ACCUSED as in the preceding Sederunt.
The Court being again met, and the prisoners brought to the bar, the
Clerk of Court called over the list of the jury, and all being present,
the Lord Justice-Clerk asked them who was their Chancellor, upon which
the Chancellor rose, and delivered their verdict to his Lordship, sealed
with black wax.
The verdict being opened and read by the judges severally, they
appointed it to be recorded. During this pause a deep silence prevailed.
The verdict being recorded, the Lord Justice-Clerk called upon the
prisoners to attend to it, and it was then read aloud by the Clerk of
Court as follows:--
At Edinburgh the twenty-eighth day of August one
thousand seven hundred and eighty-eight years.