Hutton to be their Chancellor, and of the said John Hay to be their
Clerk: and having considered the Criminal Indictment raised and
pursued at the instance of Ilay Campbell, Esq., His Majesty’s
Advocate, for His Majesty’s interest, against William Brodie, late
wright and cabinetmaker in Edinburgh, and George Smith, late grocer
there, pannels,[26] with the interlocutor pronounced by the Lord
Justice-Clerk and Lords Commissioners of Justiciary on the
relevancy thereof together with the depositions of the witnesses
adduced by the prosecutor for proving the same, and the several
declarations libelled on, as also the depositions of the witnesses
adduced for the pannel William Brodie, in exculpation; they all, in
one voice, find the pannels William Brodie and George Smith GUILTY
of the crime charged against them in the said Indictment. In
witness whereof their said Chancellor and Clerk have subscribed
these presents upon this and the preceding page, place and date
foresaid, in their name and by their appointment.
JOHN HUTTON, Chanr.
JOHN HAY, Clerk.
The LORD ADVOCATE--It is now incumbent upon me, my Lords, to move your
Lordships to pronounce the sentence of the law against the prisoners at
the bar.
Mr. WIGHT--My Lords, before your Lordships proceed to pronounce
judgment, I have an objection to state on behalf of the prisoners at the
bar, which, in my opinion, ought to prevent any judgment from passing
upon this verdict.
My Lords, from the evidence taken in the course of this trial, it
appears that the libel is insufficient, in so far as it charges “that
the pannels did wickedly and feloniously break into _the_ house in which
the General Excise Office for Scotland was then kept,” whereas it ought
to have stated that they so broke into _one_ of the houses so kept,
describing such house particularly. For it appears from the proof that
there were two separate and distinct houses in which the General Excise
Office for Scotland was then kept, on the opposite sides of the court,
and at a considerable distance from each other.
Besides, my Lords, supposing this uncertainty in the libel as to the
_locus delicti_ were insufficient to operate an arrest in judgment, yet
no judgment can pass upon the verdict of the jury, on account of the
uncertainty thereof, inasmuch as it finds in general terms the pannels
guilty of the crime libelled; by which it is found that they have been
guilty of breaking into the house in which the General Excise Office for
Scotland was then kept, without distinguishing to which of the two
before-mentioned houses the verdict applies. And the present plea in
arrest of judgment deserves the greater consideration on this account,
that the jury were called upon, by the manner in which the proof was
conducted on the part of the pannels, to attend particularly to the
circumstance of the Excise Office being kept in two separate and
distinct houses.
The LORD ADVOCATE--My Lords, I am not a little surprised that an
objection of this nature should be brought forward at this time. This
plea resolves into an objection to the relevancy or form of the
indictment, which ought to have been stated _in limine_. If the
gentlemen on the other side of the bar meant to have stated any such
objection as the present, they ought to have done it yesterday. But
after they have allowed the indictment to pass without any such
objection; after your Lordships have sustained it as relevant, and
remitted it to the knowledge of an assize in common form; and when the
jury have returned a verdict finding the prisoners guilty of the crime
charged--there can be no room for any further proceeding, except to
pronounce the sentence of the law upon the verdict so returned.
I do therefore, my Lords, altogether deny that it is competent, in this
stage of the trial, to bring forward an objection such as the present,
which ought to have been stated at first, and which your Lordships
cannot now enter upon.
But, my Lords, even if the matter were open, the objection itself is
altogether frivolous, for the house that was broke into, as stated in
the indictment, was really and truly the house known by the name of the
General Excise Office for Scotland at the time. It is indeed true that
one or two of the clerks and inferior officers were accommodated in a
small house within a few feet or yards of the large one, and which was
joined to it by a wall like a wing. But this did not make them in any
sense of the word two separate houses. The principal house which was
broke into, was hired at £300 per annum of rent, and the small house at
£8 per annum. This last was just as much a part of the General Excise
Office as a kitchen separate from any house is a part of that house. And
surely your Lordships would not cast an indictment which charged that a
man’s house was broke into, upon the ground that his kitchen was not
joined to his house, which very often happens.
I therefore, my Lords, consider this as a very frivolous objection, and
I know that the honourable counsel on the other side of the bar, who is,
to speak in reply to me, knows too well the dignity of his character and
the honour of his profession to insist seriously upon an objection so
futile. Had this been the case of a poor man, my Lord, we would not have
heard of this objection, and I do not see what title the rank and
situation of this man can plead for troubling the Court with frivolous
objections to the verdict of a jury after so long and so fair a trial.
The DEAN OF FACULTY--My Lords, I know what belongs to the dignity of my
profession and the honour of my character as well as my Lord Advocate.
[Here the Lord Advocate, laying his hand upon his heart, expressed, by
the strongest gestures, that he meant to say nothing disrespectful to
the Dean of Faculty, and was going to speak, when the Lord Justice-Clerk
said that what my Lord Advocate had mentioned, so far from being
derogatory to the Dean of Faculty, was a high compliment to him. The
Dean of Faculty then resumed.] My Lords, I say that I know how I ought
to conduct myself, both as a lawyer and a gentleman, and it is in the
full conviction of performing my duty that I rise to enforce the present
objection, which I think is such a one as ought to overturn this
verdict.
It has been asked why this objection was not brought forward in an
earlier stage of the trial--why it was not pleaded at the very outset,
as sufficient to cast the indictment? It has been called a frivolous
objection by my Lord Advocate. But many objections were styled frivolous
by the gentlemen on that side of the table during the course of this
trial, which your Lordships decided to be well founded. My Lords, it was
impossible to plead it in this early stage, because the fact came out to
be as stated in the objection only during the time that the proof in
this trial was led. Though the circumstances might be known to us
privately before, yet it was not substantiated by proof, and this surely
is the proper time for stating an objection, the grounds of which only
appeared in the course of the evidence, and could not possibly appear
sooner.
With regard to the matter of fact in this case, I shall not detain your
Lordships a moment. Nothing is clearer from the evidence than that there
were two separate and distinct houses in which the Excise Office was
kept at the time when the robbery was committed. Several of the
witnesses have sworn to this, and it was admitted on the other side of
the table. I therefore say, my Lords, that this verdict, which has found
the prisoners guilty of breaking into the house in which the General
Excise Office was kept, finds nothing.
It is in vain to say that these two houses belonged to one and the same
office. If they are not under the same roof--which it is confessed these
two houses are not--then it is of no importance how near they may be to
each other, for neither of them is the house in which the Excise Office
was kept, but only one of the houses employed for that purpose. His
Grace the Duke of Buccleugh has two houses lying near each other, the
house of Dalkeith and the house of Smeiton, both in the parish of
Dalkeith. Would the verdict of a jury be good, which, upon the statement
of an indictment that the house of the Duke of Buccleugh, lying within
the parish of Dalkeith, was broke into, should simply find the pannel
guilty? Surely not. It would be necessary to specify which of the houses
was broke into, because an innocent man, who could prove an _alibi_ with
regard to the one, might not be able to prove it with regard to both,
or, in short, because the libel is uncertain.
The Excise Office is now removed to the house lately possessed by Sir
Laurence Dundas in the New Town of Edinburgh.[27] Suppose that part of
the offices still remained in the former place, would it be sufficient
to say that the house in which the General Excise Office is kept was
broke into, when there were evidently two houses in which it was kept,
one in the Old and one in the New Town? And the only difference betwixt
that case and the present is that the distance is greater, for in both
cases the houses are equally separate and distinct.
In the same way, for the sake of illustration, it was not till lately
that I myself could find a house sufficiently convenient both for the
purposes of business and accommodation of a numerous family. I had
accordingly two houses, one in George Street and one in Princes Street,
and I have done business in both of them. Now, would an indictment
charging a person with having broken into the house of the Honourable
Henry Erskine, Dean of the Faculty of Advocates, be sufficient, while I
possessed two houses, to support a verdict which found the pannel in
general terms guilty? It would not be enough to say that I employed both
houses frequently for the same purposes, and that I could pass from the
one into the other, though not without some little inconvenience of
getting wet when it rained. This undoubtedly would not be sufficient,
unless I could prove that both houses were one and the same; a verdict
finding the pannel guilty of breaking into the house, could, from its
uncertainty, apply neither to the one nor to the other.
My Lords, I will not detain your Lordships. The case is very short and
simple, and without stating any further illustrations or arguments, I
think that the prisoner cannot be more safe than in the opinions which
your Lordships shall deliver upon so plain a point so fairly stated to
you.
Lord HAILES--My Lords, I have great doubts concerning the competency of
this objection, but it is a subject upon which I do not like to enter. I
am indeed sorry that this objection has been stated, as it may flatter
the prisoners with hopes which I am afraid are ill founded.
The merits of the objection itself appear to me very easy of discussion.
The Dean of Faculty is mistaken with regard to the houses possessed by
the Duke of Buccleugh, for they are not both in the parish of Dalkeith,
as the house of Smeiton lies in the parish of Inveresk. But supposing
they did both lie in the same parish, there is a great difference
betwixt houses situated at some distance from each other and those which
lie immediately contiguous, as is the present case. The small house
adjoining to that principal one in which the Excise Office was kept is
to be considered as a part of the same building, employed always for the
same purpose, and used only for better accommodation.
I repeat it again, my Lords, that I have doubts whether or not this
objection be now competent, but laying this out of the question, I am
clear for repelling the objection, as the expression used in the
indictment appears to me sufficiently descriptive of the place in which
the General Excise Office was kept.
Lord ESKGROVE--My Lords, I am sorry that this objection has been stated,
and I think it my duty to declare, for the sake of the prisoners at the
bar, that I do not think it such as ought to induce them to hope that it
will operate any change as to the verdict which has been returned this
day.
It is my opinion, my Lords, that the objection itself, without entering
into the question whether it be now competent to state it, cannot be
listened to by the Court. The indictment states that the prisoners at
the bar broke into the house in which the Excise Office was kept at the
time when the robbery happened, and although a few offices may have been
kept in the small house adjoining to the principal building, yet it
cannot be denied that this separate tenement was considered as a part of
the General Excise Office; and the witnesses themselves, who were
examined upon this point have told us that had this small tenement been
broke into instead of the principal house, they would have said that the
Excise Office was broke into.
Upon this ground, I am clear for repelling this objection as not well
founded, the whole building, which was called the Excise Office, being
situated in the same place, and inclosed by the Commissioners so as to
render its parts distinct from any other building.
Lord STONEFIELD--My Lords, I do not understand the bringing forward this
objection at this time; it seems as if they wished to introduce the
forms of the law of England. I think that the Lord Advocate has
described in the indictment the place where the crime was perpetrated
with sufficient accuracy, and therefore I am for repelling the
objection.
Lord SWINTON--My Lords, among all the proceedings in this painful trial,
the present motion gives me the greatest pain. It sets forth, first,
that the libel charged the prisoners with wickedly and feloniously
breaking into the house in which the General Excise Office for Scotland
was then kept. The motion next sets forth that the verdict finds the
prisoners guilty of the crime charged; and it concludes for an arrest of
judgment, because the General Excise Office consists of more houses than
one, as your Lordships will recollect from the proof taken before you
yesterday.
One of the counsel yesterday stated himself as appearing not only in
defence of the prisoners, but in defence of the law itself.
The motion, however, now made, if properly considered, tends to
overturn the most valuable part of the law, namely, that part which
gives this kingdom the security of jury trial. By the mode of trials
long ago established, the libel is first of all to be read; the party
accused is then at liberty to state his defences to the form of the
indictment, and to the competency or relevancy of the charge; and it is
the province of the judges to determine the law, that is, to decide upon
the defences; which, together with the judgment upon them, must enter
the record. The indictment and judgments upon it are then remitted to
the knowledge of an assize. It then goes out of the hands of the judges,
and the province of the jury commences, which is to try the truth of the
facts, and to apply the law, that is, the judgment of the Court, to the
facts, by returning such verdict as they think fit. That is their
province. After they return their verdict, the cause comes back into the
hands of the judges to pronounce the sentence of the law. But in doing
so the only materials subject to their judgment are those which appear
on the face of the record, that is, the indictment, the minutes of
proceedings, and the verdict. They can take nothing else under their
consideration; particularly, they have no power to look back into any
part of the proof, or to take it under consideration in any manner.
In the present case, looking into the record, we see the indictment
charges the prisoners with breaking into the house in which the General
Excise Office was kept. We observe not in the proceedings any objections
made to the form or the competency of the charge. The verdict finds the
prisoners guilty. This is all that appears upon the face of the record.
But what is now proposed to us by this motion? It is to look into our
notes, or to recollect from our memory, that it was proved the whole
offices of Excise were not precisely under one roof, and that there is a
small adjoining house also made use of; and we are moved to arrest
judgment, for that the libel is improperly laid, as it does not mention
that there are more houses than one, and specify which of these were
broke open.
Now, what does this amount to? Is it not a suggestion to the judges to
look back into the proof, which is the whole province and privilege of
the jury? If the judges, after a verdict, might look back into and
consider the proof or any part of it in favour of the party accused,
they might surely do the same thing to his prejudice, and in favour of
the prosecutor. Is not this a mode of proceeding altogether incompetent?
Is it not paving a way to make verdicts of no use, but our usurping a
right to judge of the proof, independent of the verdict?--a proceeding
which, I should think, is not only incompetent, but even criminal. Why
did our ancestors establish the rules of proceeding which we have
always observed? It was for the security of the lives and liberties of
the subjects of this kingdom. The security handed down to us from our
ancestors, we are bound to deliver unimpaired to our posterity.
My Lords, if I have expressed myself warmly upon this occasion, I hope
your Lordships will forgive me. I am so clear upon the incompetency of
this motion, that, however clear also upon the merits, yet, for the
reasons given, I am not at liberty to say one word upon them.
The LORD JUSTICE-CLERK--I am clearly of opinion that it is not now
competent to receive this objection, although the objection itself, were
it received, is such as would have no weight with me. But I will not
enter into its merits; it ought to have been stated in the pleading as a
bar to the present trial; and the counsel for the pannels ought then to
have brought forward whatever proof they had in order to prove the
matter of fact. It is now impossible for the Court to review the
evidence which has been led, and the objection must therefore be
repelled.
The Dean of Faculty then moved the Court to allow the plea upon the
arrest of judgment to be entered upon the record, which was allowed
accordingly, and an interlocutor pronounced in the following terms:--
The Lord Justice-Clerk and Lords Commissioners of Justiciary having
considered the foregoing debate, they repel the plea offered in
arrest of judgment.
ROBT. M‘QUEEN, I.P.D.
The LORD JUSTICE-CLERK--My Lords, you will now deliver your opinions as
to the sentence to be pronounced against the pannels at the bar.
Lord HAILES--My Lords, after the verdict of the jury, nothing remains
for us but the melancholy task of pronouncing the sentence of the law.
It is not left in our option what punishment to inflict, for the law has
declared the crime of which these unhappy men have been convicted,
capital. It is my opinion, my Lords, that the prisoners at the bar be
carried back to the Tolbooth of Edinburgh, and that they be there
detained, and that they be executed on Wednesday, the first day of
October next.
Lord ESKGROVE--My Lords, nothing is left for me but to agree with the
opinion delivered by my honourable brother. I sincerely commiserate the
fate of these unhappy men; one of them especially I pity much. Now that
I see him at the bar, I recollect having known him in his better days
and I remember his father, who was a most worthy man. Their situation
is a miserable one, and I hope that it will have the effect to deter
others from being betrayed into the same vices which have led these poor
men to this ignominious condition.
Lords STONEFIELD and SWINTON delivered sentiments to the same purpose.
Address to the Prisoners and Sentence.
The LORD JUSTICE-CLERK then addressed the prisoners as follows:--William
Brodie and George Smith, it belongs to my office to pronounce the
sentence of the law against you. You have had a long and fair trial,
conducted on the part of the public prosecutor with the utmost candour
and humanity, and you have been assisted with able counsel, who have
exerted the greatest ability and fidelity in your defence.
I wish I could be of any use to you in your melancholy situation. To one
of you it is altogether needless for me to offer any advice. You,
William Brodie, from your education and habits of life, cannot but know
everything suited to your present situation which I could suggest to
you. It is much to be lamented that those vices, which are called
gentlemanly vices, are so favourably looked upon in the present age.
They have been the source of your ruin; and, whatever may be thought of
them, they are such as assuredly lead to ruin. I hope you will improve
the short time which you have now to live by reflecting upon your past
conduct, and endeavouring to procure, by a sincere repentance,
forgiveness for your many crimes. God always listens to those who seek
Him with sincerity.
His Lordship then pronounced sentence of death in the usual form, and
the sentence having been recorded and signed by the judges, it was read
aloud as follows:--
The Lord Justice-Clerk and Lords Commissioners of Justiciary,
having considered the verdict of assize, dated and returned this
twenty-eighth day of August, against the said William Brodie and
George Smith, Pannels, whereby the assize all in one voice find
them guilty of the crime libelled; the said Lords in respect of the
said verdict decern and adjudge the said William Brodie and George
Smith to be carried from the bar back to the Tolbooth of Edinburgh,
therein to be detained till Wednesday, the first day of October
next, and upon that day to be taken furth of the said Tolbooth to
the place fixed upon by the magistrates of Edinburgh as a common
place of execution, and then and there, betwixt the hours of two
and four o’clock afternoon to be hanged by the necks, by the hands
of the Common Executioner, upon a Gibbet, until they be dead; and
ordain all their moveable goods and gear to be escheat and
inbrought to His Majesty’s use: which is pronounced for doom.
ROBT. M‘QUEEN.
DAV. DALRYMPLE.
DAV. RAE.
JO. CAMPBELL.
JOHN SWINTON.
The sentence having been read, Mr. Brodie discovered some inclination to
address himself to the Court, but was restrained by his counsel. He
thereupon respectfully bowed to the bench, and the pannels were removed
to prison.[28]
* * * * *
The Court then rose.
APPENDIX I.
NOTES ON THE TRIAL OF DEACON BRODIE IN THE CONTEMPORARY REPORTS BY
MORRISON AND CREECH.
NOTE 1, page 83.
This unhappy man was tried for sheep stealing in the year 1782, and
condemned to be hanged. He afterwards received His Majesty’s pardon
conditionally that he should be transported for life. Government having
adopted no plan for the transporting of felons from Scotland since the
loss of America, he has, owing to that circumstance, been detained so
long in prison; and I am sorry to add that he is not the only sufferer
from the same cause.--_Morrison._
NOTE 2, page 93.
It is said that Mr. Learmonth very properly wrote immediately to the
Sheriff-Clerk’s office, and the intelligence was from thence sent to the
Procurator-Fiscal, who at the time was in the playhouse. He immediately
went out and set off with Mr. Williamson, the messenger, to Geddes’s
house in Mid-Calder, twelve miles from Edinburgh, and brought him in on
Sunday morning with the letters.--_Creech._
NOTE 3, page 99.
On taking the precognition at the Sheriff-Clerk’s chamber; a curious
circumstance occurred respecting this black dog. Smith, the prisoner,
was under examination, and the above witness, Kinnear, was also present.
Kinnear had said to the Sheriff that he was at such a distance that he
would not know the men, but he would know the dog, having been at one
time near him. Soon after, a dog was making a noise and scraping at the
door, which being opened, the above witness said, “There is the dog,”
and it ran and fawned upon Smith.--_Creech._
NOTE 4, page 104.
This witness was much affected on coming into Court. On passing her
husband, the prisoner at the bar, she looked at him with much seeming
agitation. He stretched out his hands, and, in a loud whisper, entreated
her not to answer a word to any question that should be put to
her.--_Creech._
NOTE 5, pages 108 and 109.