witness, James Murray, who, with Middleton, accompanied the prisoner
Smith to the place. Murray said at the foot of Allan’s Close, below the
Royal Exchange; and Warriston’s Close is above the Exchange, or west,
the other east. Since the trial, we were at pains to have an explanation
of this inconsistency, and went with Middleton to the spot. He conducted
us down Warriston’s Close; and at the bottom of the steps at the foot of
it, in the wall, immediately on the right hand, or to the east, and not
three feet from the steps, he pointed out the hole where the iron crow
and other instruments were found. He was asked how he and Murray came to
disagree. He said it was true they went by Allan’s Close, turned into
Mary King’s Close, and then went to the hole then, pointed out. In
short, the one witness, Murray, describes it by the road they took, the
other, Middleton, by the real situation of the place. Middleton
acknowledged that he was wrong in saying Smith put in his hand and drew
out the instruments. He was handcuffed, and could not stretch his arm.
He only put his fingers to the mouth of the hole, to point it out, and
Murray put in his arm as he immediately recollected after he left the
Court. Both Middleton and Murray agree that the hole is the same where
they found the iron crow, &c., and it is directly at the foot of
Warriston’s Close.--_Creech._
NOTE 6, page 110.
The further particulars of Mr. Williamson’s search for Mr. Brodie are
curious, and, having been favoured with them from Mr. Williamson
himself, we here subjoin them:--
On Monday, the 10th of March, Mr. Williamson began his search at Mr.
Brodie’s dwelling-house, out-houses, &c. He searched several of Brodie’s
haunts in Edinburgh and Leith. He searched all the inclosed tombs in the
Greyfriars Churchyard. The reason for this was that, some years ago,
Brodie assisted one Hay, accused of a capital crime in making his escape
from the Tolbooth of Edinburgh, and concealed him eight or ten days in
one of these tombs till the hue and cry was over. Hay by this means got
off, and has never since been heard of. When it was known, on Wednesday,
that Brodie had gone off to London on the morning of Sunday, the 9th,
Mr. Williamson was despatched after him. At Dunbar he learned that
Brodie had passed there about four o’clock in the afternoon of Sunday,
and traced him to Newcastle, where he took the “Flying Mercury” light
coach for York and London. From the coachman he learned that a man
answering Brodie’s description had been set down at the end of Old
Street, Moorfields, and did not proceed to the Bull and Mouth Inn, where
the coach stops. Some persons of Brodie’s acquaintance were examined,
and from the declarations of some of them there was reason to believe
that Brodie had gone to the Continent. Mr. Williamson went to Margate,
Deal, and Dover, but got no intelligence of him.
On Mr. Williamson’s return to London, he learned from Sir Sampson
Wright’s people that Brodie had been seen about Bedfordbury. Mr.
Williamson repaired to the billiard tables, hazard tables, cock-pits,
tennis courts, &c., &c. As no house could be searched without making
oath to his being there, Mr. Williamson left the management to Sir
Sampson’s people, and returned, after eighteen days’ search in London,
to Edinburgh.--_Creech._]
NOTE 7, page 111.
On the journey from London to Edinburgh, Mr. Brodie was in good spirits,
and told many things that had happened to him in Holland. He met with a
Scots woman at Amsterdam, who asked him if he had been long from
Scotland. She said that there was one Brodie, a citizen of Edinburgh,
accused of robbing the Excise Office, and a great reward was offered for
apprehending him. She little knew who she was speaking to, said Mr.
Brodie. At Amsterdam, he fell in with the man who had committed a
forgery on the Bank of Scotland. He (Brodie) said he was a very
ingenious fellow. If he had not been apprehended he would have been
master of the process in a week.
Mr. Brodie further told Mr. Williamson that the guide who had
accompanied him and Mr. Groves from Amsterdam to Helvoetsluys had a fine
repeating gold watch, which he (Mr. Brodie) said he could easily have
possessed himself of at the time the man was taking leave of him, as he
was then in liquor, and said he had often since regretted that he had
allowed the fellow to go back with it.--_Creech_.]
NOTE 8, page 118.
Grahame Campbell said they all came back to Smith’s.--_Creech_.]
NOTE 9, page 119.
This evening, Friday, Brown gave information, and Smith Ainslie, Mrs.
Smith, and Grahame Campbell were taken into custody. The reason of
Brown’s giving the information is said to have been that he had seen the
advertisement from the Secretary of State’s Office that evening
promising a reward and a pardon to the person who should discover the
robbery of Inglis & Horner’s shop. Brown was under sentence of
transportation in England, and in daily fear of apprehension. The reward
and pardon were too powerful to be resisted, and he foresaw that it
would be necessary for the prosecutor to obtain his pardon for his
offence in England before he could be admitted as a witness. No wonder
that the Lord Justice-Clerk said to him, after his examination, that he
was a clever fellow.--_Creech_.]
NOTE 10, page 133.
The witness seemed to be well acquainted with Macheath, but not with the
“Beggar’s Opera.” The song is by Mat o’ the Mint:--
“Let us take the road.
Hark! I hear the sound of coaches!
The hour of attack approaches;
To your arms, brave boys, and load!
“See the ball I hold!
Let the chemists toil like asses;
Our fire their fire surpasses,
And turns our lead to gold.”
--_Creech_.
NOTE 11, page 135.
It was clearly proved in the course of this trial, and I had otherwise
occasion to know, that there was no information given against Mr. Brodie
until Monday, the 10th, when the unfortunate Smith was examined. A
warrant was immediately issued for apprehending him, and a search made,
but it was too late; he had gone for London the preceding
day.--_Morrison_.
Brown did not mention Brodie on the first information he gave, nor,
indeed, till he had returned from England, where he had gone in pursuit
of the goods robbed from Inglis & Horner’s shop. It is supposed, by
concealing Brodie, that he meant to have exacted money from him on his
return to keep his secret. But Brodie was gone, and he then spoke
out.--_Creech_.
NOTE 12, page 152.
This is what is called flash language, and means swore to me.--_Creech_.
NOTE 13, page 153.
This means the description of him which was inserted in all the
Edinburgh and London newspapers, and was very minute and
particular.--Creech.
NOTE 14, page 154.
This is another specimen of the flash language, or slang. “And glimed
the scrive” means “burned the letter.”--_Creech_.
NOTE 15 page 161.
As Brown, Ainslie, and Smith’s maid all concur that Mr. Brodie was in
Smith’s house on the afternoon of the 5th March, it might appear a
contradiction to this evidence; but Brown has fixed that it was very
early in the afternoon, some time after two o’clock, but could not say
that it was after three, so that it is evident the meeting in Smith’s
which they alluded to was between two and three o’clock, and before this
witness came to dine with Mr. Brodie. _Vide_ Brown’s evidence.--_Creech_.
NOTE 16, page 161.
From Mr. Brodie’s house in Brodie’s Close, Lawnmarket, to Bunker’s Hill,
is above half-a-mile, and Mr. Sheriff was home some minutes before eight
o’clock.--_Creech_.
NOTE 17, page 161.
Peggy Giles, Jean Watt’s servant, said Mr. Brodie was in her mistress’s
house on Thursday afternoon; but this may have been between two and
three o’clock, which she called afternoon, in the same way as Smith’s
maid said that the first meeting in her master’s was on the Wednesday
afternoon, which, by Brown’s evidence, is fixed to have been before
three o’clock.--_Creech._
NOTE 18, page 161.
A report having been circulated that Mr. Brodie was married to this
witness in prison--which, if true, would have disqualified her from
being a witness--it seems to have been the object of the Lord Advocate’s
questions to ascertain the fact.--_Creech._
NOTE 19, page 162.
The Tron Church is near a quarter of a mile from the Parliament
Close.--_Creech._
NOTE 20, page 163.
This is inconsistent with Jean Watt’s evidence, as she said that Mr.
Brodie was not in her house at all on Thursday, and not till
Saturday.--_Creech._
NOTE 21, page 178.
This doctrine, which had been suppressed in Scotland for above a
century, was revived in the course of the memorable trial of Carnegie of
Finhaven by the late Lord Arniston, the illustrious grandfather of the
present Mr. Solicitor Dundas. Mr. Arnot, speaking of his address to the
jury on that occasion, says, “He told them with a manly confidence,
which conscious right inspired, that they must not be startled at the
interlocutor of the Court.” And they were not startled; for although the
facts found relevant to infer a capital punishment were clearly proved,
the jury returned a verdict finding the pannel not guilty, because they
were of opinion that the interlocutor pronounced by the Court on the
relevancy was erroneous.--_Morrison._
NOTE 22, page 182.
Old Norval’s speech in “Douglas.”--_Creech._
NOTE 23, page 183.
The particulars of this story are as follows:--Major had won a
considerable sum of money the night before, and insuch a manner as to
lead to suspicion; two gentlemen, therefore, were determined to watch
him, and for this purpose planted themselves the next night on each side
of his chair, when, taking a proper opportunity, one of them seized his
hand with the dice in it; he grasped it close, and would not part with
them; the other, seeing this, knocked him down, and in the fall the
Major drew with him the first gentleman, who, however, would not let go
his hold till he wrested the dice from him.
He then presented them to the company, who instantly saw and
acknowledged the deceit. The Major was attempting some apology; the
company would hear nothing, but turned him out of the room with every
mark of disgrace and reprobation.
The dice were afterwards presented to the Jockey Club, in order to come
to some resolution upon this transaction; but the President said, as
their meeting referred more immediately to the turf, they could do
nothing in it, but determined for themselves not to let such a man in
future mix with them in any company. This resolution has been since
followed in all the reputable gaming clubs.
Such is the story; the reflection that arises from it is very obvious,
which is, that though this degraded man was so unfortunate for himself
as to be detected, where is the public gaming table that is not
surrounded with such? And where is the man, without a fortune of his
own, that can spend from one thousand to two thousand pounds a year--as
most of them do--without having some superiority, some dexterity, over
the generality of those who play with them?
If the independent men who play at public tables and at public
watering-places, therefore, were to look sharp, independently of the
consideration of rank, title, or fortune, they would constantly find out
more majors of this kind; but if they would do better, they would avoid
all those places which are subject to the contamination of such
men.--_Creech._
NOTE 24, page 201.
The using the word “pannel” in place of prisoner is peculiar to
Scotland. It is believed it took its rise from the niche or place where
the criminal was placed at the bar, which was called the
pannel.--_Creech._
NOTE 25, page 210.
During the whole time of this trial the Court was uncommonly crowded,
notwithstanding the fees of admission were raised so high as three,
four, and five shillings. The heat was for a great part of the time
intolerable; and the noise and tumult occasioned by orders given by the
Court to clear certain parts of the house frequently interrupted the
business of the trial. But the audience, who had paid for their places,
were determined not to be turned out of them, and therefore maintained
their ground, although the soldiers’ bayonets were two or three times
mentioned. The Court’s being occasionally subjected to such
inconvenience proceeds from the doorkeepers being allowed to extort
money for admission--a practice directly contrary to the statute law of
the land, and derogatory to the dignity of the High Court.
The doorkeepers not only demand money, but they claim the privilege of
determining who shall and who shall not be admitted. They even presume
to exclude, when they think proper, a great proportion of the members of
the Court. Many of the agents during this trial were compelled to pay a
crown for their places, and others were refused admittance upon any
terms. When it is considered that the practice of the criminal law of
Scotland cannot be acquired from books, nor by any one man in the course
of his own experience, and that the agents are often charged with the
conduct of trials, upon the issue of which the lives and fortunes of
their fellow-citizens depend, it seems highly inexpedient, not to say
unjust, to deny them the privilege of admission to the Court, where
alone they can have an opportunity of acquiring that knowledge which it
is highly necessary they should be possessed of. The Court, however,
seem to think differently, for upon a late occasion, when an agent
complained to them of being excluded by the doorkeepers, they gave him
no redress.
I have only to add that if it is still thought proper to allow the
doorkeeper to take money, a fare should be established for admission to
each of the different parts of the house, in proportion to the
accommodation they afford, that all His Majesty’s lieges may be upon as
equal a footing there as in other public places.--_Morrison._
APPENDIX II.
A BRIEF ACCOUNT OF THE JUDGES AND COUNSEL ENGAGED IN THE TRIAL OF DEACON
BRODIE.
ROBERT MACQUEEN, Lord Braxfield (1722-1799), eldest son of John Macqueen
of Braxfield, Lanarkshire, sometime Sheriff-Substitute of the Upper Ward
of that county, by his wife, Helen, daughter of John Hamilton of
Gilkerscleugh, Lanarkshire, was born on 4th May, 1722. He was educated
at the Grammar School of Lanark, and thereafter attended a law course at
the University of Edinburgh, with the view of becoming a Writer to the
Signet. He was apprenticed to Thomas Gouldie, W.S., Edinburgh, but
finally decided to try his fortune at the bar, and, after the usual
trials, was, on 14th February, 1744, admitted a member of the Faculty of
Advocates. He was employed as one of the counsel for the Crown in the
many intricate feudal questions respecting the forfeited estates which
arose out of the Rising of 1745. He quickly gained the reputation of
being the best feudal lawyer in Scotland, and is said to have received
greater emoluments from his practice than any counsel before his time.
On the death of George Brown of Coalston, Macqueen was elevated to the
bench on 13th December, 1776, and assumed the title of Lord Braxfield.
He was also appointed a Lord Commissioner of Justiciary on 1st March,
1780, on the resignation of Alexander Boswell of Auchinleck. In the same
year was published an anonymous “Letter to Robert Macqueen, Lord
Braxfield, on his Promotion to be one of the Judges of the High Court of
Justiciary” (Edinburgh, 12mo). This pamphlet, which points out the
common failings of Scottish criminal judges is attributed by Lord
Cockburn to James Boswell, the elder (“Circuit Journeys,” 1889 p. 322).
On 15th January, 1788, Braxfield was appointed Lord Justice-Clerk, in
succession to Thomas Miller of Barskimming, promoted to the Presidency
of the Court of Session. He held that important office during a very
interesting and critical period; and presided at the trials of Muir,
Palmer, Margarot, and others, who were indicted for sedition in 1793-4,
in the course of which he let fall from the bench the _obiter
dictum_--“I never likit the French a’ my days, but now I hate them.” “In
these,” says Lord Cockburn, “he was the Jeffreys of Scotland. He, as the
head of the Court, and the only very powerful man it contained, was the
real director of its proceedings” (“Memorials of his Time,” 1856, p.
116).
The conduct of Braxfield during these memorable trials has been freely
censured in recent times as having been marked by great and unnecessary
severity; but, the truth is, he was extremely well fitted for the crisis
in which he was called on to perform so conspicuous a part, for by the
bold and fearless front he assumed, he contributed not a little to curb
the lawless spirit that was abroad, and which threatened a repetition of
that reign of terror and anarchy which so fearfully devastated a
neighbouring country. As an instance of his great nerve, it is recorded
that Braxfield, after the trials were over, which was generally about
midnight, always walked home to his house in George Square alone and
unprotected, though he constantly commented openly on the conduct of the
Radicals, and more than once observed in public, “They would a’ be
muckle the better o’ being hangit!”
After a laborious and very useful life, Braxfield died at his residence,
No. 28 George Square, Edinburgh, on 30th May, 1799, in the
seventy-eighth year of his age, and was buried at Lanark on 5th June
following. Before taking up his residence in George Square, Braxfield
lived for many years in Covenant Close. He was twice married. By his
first wife, Mary Agnew, niece of Sir Andrew Agnew, he had two sons and
two daughters; by his second wife; Elizabeth, daughter of Lord Chief
Baron Ord, he had no children.
Braxfield was the last of our judges who rigidly adhered to the old
“braid Scots.” “Hae ye ony counsel, man?” said he to Margarot, when
placed at the bar, “Dae ye want tae hae ony appintit?” “No,” replied
Margarot; “I only want an interpreter to make me understand what your
Lordship says!” “Strong built and dark, with rough eyebrows, powerful
eyes, threatening lips, and a low, growling voice, he was like a
formidable blacksmith. His accent and his dialect were exaggerated
Scotch; his language, like his thoughts, short, strong, and conclusive”
(Cockburn, “Memorials of his Time,” 1856, p. 113). “Despising the
growing improvement of manners, he shocked the feelings even of an age
which, with more of the formality, had far less of the substance of
decorum than our own. Thousands of his sayings have been preserved, and
the staple of them is indecency, which he succeeded in making many
people enjoy, or at least, endure, by hearty laughter, energy of manner,
and rough humour” (_ib._ p. 114).
He domineered over the prisoners, the counsel, and his colleagues alike.
Devoid of even a pretence to judicial decorum, he delighted while on the
bench in the broadest jests and the most insulting taunts, “over which
he would chuckle the more from observing that correct people were
shocked. Yet this was not from cruelty, for which he was too strong and
too jovial, but from cherished coarseness” (_ib._ pp. 115-116). Gerald,
at his trial, ventured to say that Christianity was an innovation, and
that all great men had been reformers, “even our Saviour Himself.”
“Muckle He made o’ that,” chuckled Braxfield; “He was hangit” (_ib._ p.
117). On another occasion he remarked to an eloquent culprit at the bar,
“Ye’re a vera clever chiel, man, but ye wad be nane the waur o’ a
hangin’” (Lockhart’s “Life of Scott,” 1845, p. 425).
Of Braxfield’s grim humour in its unprofessional aspect but a few
samples are now tolerable. Among these, however, is the following:--When
a butler gave up his place because his mistress was always scolding him,
“Lord!” exclaimed his master, “ye’ve little tae complain o’; be thankfu’
ye’re no marriet till her.”
“Out of the bar or off the bench,” says Stevenson, “he was a convivial
man, a lover of wine, and one who shone peculiarly at tavern meetings.”
When Lord Newton, then Charles Hay, was one morning pleading before him,
after a night of hard drinking--the opposing counsel being in the like
case--Braxfield observed, “Gentlemen, ye maun just pack up yer papers
and gang hame; the tane o’ ye’s riftin’ punch and the ither’s belchin’
claret; there’ll be nae guid got oot o ye the day!” (“Kay’s Portraits,”
1877, vol. i., p. 169).
A portrait of Braxfield by Sir Henry Raeburn was exhibited at the
Raeburn Exhibition at Edinburgh in 1876, a delightful description of
which is given by R. L. Stevenson in his essay, “Some Portraits by
Raeburn” (“Virginibus Puerisque,” 1881, pp. 219-236). Braxfield was, as
every one knows, the prototype of Stevenson’s “Weir of Hermiston,”
originally intended to be named “The Justice-Clerk,” and of which the
author wrote to Mr. Charles Baxter, on 1st December, 1892, “Mind you, I
expect ‘The Justice-Clerk’ to be my masterpiece. My Braxfield is already
a thing of beauty and a joy for ever, and, so far as he has gone, _far_
my best character” (“Letters to his Family and Friends,” 1899, vol. ii.
p. 273)--a judgment which the literary world has unanimously sustained.
There is preserved in the Advocates’ Library a copy of the “Latin Thesis
on a Title of the Pandects” (“De Cadaveribus Damnatorum”), written by
Sir Walter Scott on his admission to the Faculty of Advocates, 11th
July, 1792, with the following dedication:--
Viro nobili | Roberto Macqueen | de Braxfield, | inter quaesitores
de rebus capitalibus | primario, | inter judices de rebus
civilibus, | senatori dignissimo, | perito haud minus quam fideli
juris interpreti; | adeoque, | in utroque munere fungendo, |
scelera sive debita severitate puniendo, | sive suum cuique
tribuendo et tuendo, |prudentia pariter atque justitia, | insigni;
| hasce theses juridicas, |summa cum observantia, | sacras esse
voluit | Gualterus Scott.
SIR DAVID DALRYMPLE, Baronet, Lord Hailes (1726-1792), was the eldest
son of Sir James Dalrymple, Bart., of Hailes, in the county of
Haddington, Auditor of the Exchequer of Scotland, and Lady Christian
Hamilton. He was born at Edinburgh on 28th October, 1726, and was
descended on both sides from the nobility of the Scottish bar. His
grandfather, Sir David Dalrymple, was the youngest son of the first
Viscount Stair, Lord President of the Court of Session, and held the
office of Lord Advocate for nineteen years. His mother was a daughter of
Thomas, sixth Earl of Haddington, the lineal descendant of the first
earl, who was Secretary for Scotland from 1612 to 1616, and President of
the Court of Session from 1616 till his death in 1637. Dalrymple entered
upon his studies at Eton, where he acquired a considerable knowledge of
the classics and earned a high character for diligence and good conduct.
He next re-visited his native city, and attended the University. From
thence he went to Utrecht to study the civil law, returning to Edinburgh
at the close of the Rising in 1746. He became a member of the Faculty of
Advocates on 23rd February, 1748.
The death of his father two years later put Dalrymple in possession of a
sufficient fortune to enable him to indulge his literary tastes; but he
did not neglect his professional studies. As an oral pleader he was not
successful. A defect in articulation prevented him from speaking
fluently, and he was naturally an impartial critic rather than a zealous
advocate. Notwithstanding this defect, he practised at the bar with much
reputation for eighteen years. A great part of the business of
litigation in Scotland at this time was conducted by written pleadings,
and he became known as a learned and accurate lawyer.
On 6th March, 1766, Dalrymple was raised to the bench, on the death of
George Carre of Nisbet, with the title of Lord Hailes, and on the
resignation of George Brown of Coalston he was appointed a Lord of
Justiciary on 3rd May, 1776. In the latter capacity he was distinguished
for dignity, humanity, and impartiality--qualities at that times by no
means characteristic of the criminal bench. The solemnity of his manner
in administering oaths and pronouncing sentence specially struck his
contemporaries. As a judge in the civil Court he was noted for his
critical acumen and unswerving integrity. In knowledge of the history of
law he was surpassed by none of his brethren, though among them were
Elchies, Kaimes, and Monboddo.