Trial of Deacon Brodie

by Unknown

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Every attempt has been made to replicate the original as printed. Some typographical errors have been corrected; . [Contents.] [List of Illustrations]. (etext transcriber's note)

Notable Scottish Trials

Deacon Brodie

PRINTED BY
WILLIAM HODGE AND COMPANY
GLASGOW AND EDINBURGH
1906

The first meeting of Deacon Brodie and George Smith.
(After Kay.)

Trial of
Deacon Brodie

EDITED BY
William Roughead
Writer to the Signet

GLASGOW AND EDINBURGH
WILLIAM HODGE & COMPANY

TO
THE HONOURABLE LORD DUNDAS
THIS VOLUME
IS
BY KIND PERMISSION
RESPECTFULLY DEDICATED
BY
THE EDITOR

PREFATORY NOTE.

THE following report of this interesting trial is prepared from the original record, with additional particulars from contemporary sources. No connected account of the life of William Brodie having hitherto been attempted, the Editor has endeavoured to give in the introduction as complete a view as is now possible of his remarkable career.

To Sheriff Moffatt, Lanark, and Mr. William Brown and Mr. John A. Fairley, Edinburgh, the Editor is under obligation for the use of MSS., books, and prints in connection with the subject. His thanks are also due to Dr. Joseph Anderson, Keeper of the Scottish National Museum of Antiquities, who has allowed him to photograph Deacon Brodie’s lantern and keys and to make excerpts from the records of the Cape Club. For permission to publish for the first time facsimiles of Brodie’s letter to the Duchess of Buccleuch and the MS. register in his Family Bible, the Editor is respectively indebted to the courtesy of Mr. Alexander Anderson, Librarian of the Edinburgh University Library, and the Plans and Works Committee of Edinburgh Town Council.

Mr. Bruce J. Home has not only kindly permitted the reproduction of two drawings from his well-known work, “Old Houses in Edinburgh,” but has made a drawing of the old Excise Office, Chessel’s Court, expressly for the present volume.

W. R.

Edinburgh, November, 1906.

CONTENTS.

	PAGE
Introduction,	[9]
The Trial—
[First Day—Wednesday, 27th August, 1788.]
Indictment,	[72]
List of Witnesses for Prosecution,	[74]
List of Assize,	[75]
List of Witnesses for Defence,	[76]
Interlocutor on the relevancy,	[78]
List of the Jury,	[79]
Objection to specification of Crown productions,	[80]
Objection repelled,	[87]
[Evidence for Prosecution.]
1. William Scott,	[87]
2. Joseph Mack,	[88]
3. Thomas Longlands,	[89]
4. John Geddes,	[90]
5. Margaret Tweddle or Geddes,	[94]
6. Robert Smith,	[94]
7. James Laing,	[95]
8. John Macleish,	[95]
9. John Duncan,	[96]
10. William Mackay,	[96]
11. Alexander Thomson,	[97]
12. Laurence Dundas,	[98]
13. Janet Baxter,	[98]
14. James Bonar,	[99]
15. Isobel Wilson,	[99]
16. John Kinnear,	[99]
17. Grahame Campbell,	[100]
18. Mary Hubbart or Hubburt called,	[101]
Debate as to the admissibility of Hubbart,	[101]
Objection that she is the wife of Smith repelled,	[104]
Witness withdrawn owing to misnomer,	[106]
19. Daniel Maclean,	[106]
20. John Clerk,	[106]
21. David Robertson,	[107]
22. William Middleton,	[107]
23. Alexander Williamson,	[108]
24. James Murray,	[109]
25. George Williamson,	[109]
26. Andrew Ainslie called,	[111]
Debate as to the admissibility of Ainslie,	[111]
Objection to Witness repelled,	[115]
Ainslie’s evidence,	[115]
Objection to production of Five-pound Note,	[119]
Objection sustained,	[121]
27. John Brown, alias Humphry Moore, called,	[122]
Debate as to the admissibility of Brown,	[122]
Objection to Witness repelled,	[132]
Brown’s evidence,	[132]
Declarations of George Smith,	[138]
Declaration of William Brodie,	[149]
Letter, William Brodie to Matthew Sheriff,	[150]
Two Letters, William Brodie to Michael Henderson,	[152]
Copy Letter or Unsigned Scroll, No. I.,	[154]
Copy Letter or Unsigned Scroll, No. II.,	[156]
Account or State of William Brodie’s affairs,	[158]
Letter, Lee, Strachan & Co., to Emmanuel Walker & Co.,	[159]
[Evidence for Defence.]
1. Matthew Sheriff,	[160]
2. Jean Watt,	[161]
3. Peggy Giles,	[162]
4. Helen Alison or Wallace,	[163]
5. James Murray,	[164]
6. James Laing,	[164]
7. Robert Smith,	[164]
The Lord Advocate’s Address to the Jury,	[165]
Mr. John Clerk’s Address to the Jury,	[174]
The Dean of Faculty’s Address to the Jury,	[181]
The Lord Justice-Clerk’s Charge to the Jury,	[197]
[Second Day—Thursday, 28th August, 1788.]
Verdict of the Jury,	[201]
Plea in Arrest of Judgment,	[202]
Plea repelled,	[208]
Address to the Prisoners and Sentence,	[209]

APPENDICES.
[I.]	Notes on the Trial of Deacon Brodie,	[211]
[II.]	A brief Account of the Judges and Counsel engaged on the Trial of Deacon Brodie,	[217]
[III.]	A List of Publications on the Subject of or having Reference to the Trial of Deacon Brodie,	[232]
[IV.]	The Brodie Family Bible,	[238]
[V.]	Excerpts from the Records of the Cape Club,	[243]
[VI.]	Excerpts from the Guild Registers of the Burgh of Edinburgh,	[245]
[VII.]	Excerpts from the Records of the Edinburgh Town Council,	[246]
[VIII.]	Advertisements relating to certain of the Robberies committed by Deacon Brodie,	[251]
[IX.]	Narrative of the Facts respecting the Robbery of Bruces’ shop,	[257]
[X.]	State of the Process at the instance of John Hamilton,	[262]
[XI.]	An Account of Mr. Brodie’s being seized at Amsterdam,	[264]
[XII.]	The Journal of Mr. Groves,	[265]
[XIII.]	Copies of Two Autograph Letters of Deacon Brodie,	[268]
[XIV.]	Speech which George Smith intended to have made at his Trial,	[270]
[XV.]	An Account of the Execution of the Prisoners,	[272]
[XVI.]	The Old Excise Office,	[277]
[XVII.]	An Account of the Proceedings against John Brown, alias Humphry Moore, at the Old Bailey, in April, 1784,	[278]

LIST OF ILLUSTRATIONS.

The first meeting of Deacon Brodie and George Smith,	[Frontispiece]
Foot of Brodie’s Close, Cowgate,	facing page [12]
Cock-fighting Match between the Counties of Lanark and Haddington in 1785,	“ [15]
Head of Brodie’s Close, Lawnmarket,	“ [25]
The Old Excise Office, Chessel’s Court, Canongate,	“ [31]
Deacon Brodie’s Dark Lanthorn and False Keys,	“ [43]
George Williamson, King’s Messenger for Scotland,	“ [50]
George Smith at the Bar,	“ [55]
The Old Tolbooth of Edinburgh,	“ [62]
Deacon Brodie,	“ [66]
The Solicitor-General (Robert Dundas),	“ [81]
Lord Hailes,	“ [105]
Lord Eskgrove,	“ [113]
Lord Stonefield,	“ [130]
Charles Hay (afterwards Lord Newton),	“ [160]
The Lord Advocate (Ilay Campbell),	“ [165]
John Clerk (afterwards Lord Eldin),	“ [174]
The Dean of Faculty (Hon. Henry Erskine),	“ [181]
The Lord Justice-Clerk (Lord Braxfield),	“ [197]
Facsimile of first page of MS. Register in the Brodie Family Bible,	“ [238]
Facsimile of Deacon Brodie’s Letter to the Duchess of Buccleuch,	“ [269]

DEACON BRODIE.

INTRODUCTION.

FEW cities have preserved more faithfully than Edinburgh the traditions of former days, and none is richer in the material of romance. Throughout the length of the Royal mile extending from Holyrood to the Castle Hill, each tortuous wynd and narrow close owns its peculiar association, each obscure court and towering “land” has contributed, if but by a footnote, to the volume of the city’s history. And where these visible memorials have perished beneath the slow assault of time, or succumbed to the more lethal methods of modern improvement, the legends which they embodied survive their dissolution and serve in turn to perpetuate their fame.

Of the many memories that haunt the lover of old Edinburgh, wandering to-day among the vestiges of her romantic and insanitary past, perhaps the most curious is that of William Brodie, Deacon of the Wrights and doyen of the double life; by day “a considerable house carpenter” and member of the Town Council; by night a housebreaker and the companion of thieves.

It is nearly a hundred and twenty years since Deacon Brodie played out his twofold part at the west end of the Luckenbooths one grey October afternoon in 1788; but the close in the Lawnmarket which bears his name remains to this day. Here he was born and lived, man and boy, robber and decent burgess, for many reputable years; here his old father passed away, happy in the possession of so excellent a son; and from hence did the son essay that “last fatal” adventure, the issue of which was, for him, discovery and the scaffold.

The house itself has long since vanished—a victim to the indiscriminate destruction which has swept away so much else worthy of preservation. You can no longer see the heavy oaken door with the cunning lock of the Deacon’s own contriving, and the turnpike stair down which, with mask and lantern, he so often stole at midnight upon his secret and criminous affairs. But if you follow him in fancy down the High Street and past the Nether Bow, to where a gloomy “pend” leads into Chessel’s Court, you will find the tall front of the old Excise Office still rising within its “palisadoes,” behind which lurked the trembling Ainslie; and if it be about the dusk of the evening, and your imagination is informed with the spirit of the place, you may even see the man rush wildly forth from the doorway up the court, and hear, in the succeeding silence, the three blasts of an ivory whistle.

The trial of Deacon Brodie has many claims upon the attention of a later age. It is of value to the antiquarian for the vivid picture it presents of the manners and customs of our forbears at a time when the life of Edinburgh yet flowed in the ancient arteries of the old city on the ridge, although beginning to circulate more freely in the spacious thoroughfares of the New Town already invading the fields across the valley. To the lawyer it is notable as affording a singularly graphic view of the old-time practice of our criminal Courts, as well as for the galaxy of legal talent engaged upon its conduct—with such men as Braxfield on the bench and Henry Erskine and John Clerk at the bar the proceedings could lack neither picturesqueness nor importance. The psychologic interest of the chief actor’s character and the dramatic elements in which his career abounds make a more general appeal; and so long as human nature remains the same will the story of the Deacon’s downfall be accorded an indulgent hearing.

That story had for Robert Louis Stevenson a strong attraction. As early as 1864 he prepared the draft of a play founded upon it, which—after being at various times re-cast—finally took shape in the melodrama, “Deacon Brodie, or the Double Life,” written in collaboration with the late W. E. Henley, and published in 1892. It may even be that the conception of “Dr. Jekyll and Mr. Hyde” was suggested to Stevenson by his study of the dual nature so strikingly exemplified in his earlier hero; while in other of his writings he has touched the Deacon with a felicitous and kindly hand.

The birth of Deacon Brodie is thus recorded in the Register of Births for the city of Edinburgh—

“Monday, 28th September, 1741. To Francis Brodie, wright, burgess, and Cecil Grant, his spouse, a son named William. Witnesses—William Grant, writer in Edinburgh, and Ludovick Brodie, Writer to the Signet. Born the same day.”

It is an inexplicable circumstance, although by no means uncommon, that so goodly a family tree as that of the Brodies should, in due course of nature, bear such degenerate fruit as the subject of this entry was destined to prove. His great-grandfather, Francis Brodie of Milnton, Elginshire, was a member of a family well known in the North of Scotland, and his grandfather, Ludovick Brodie of Whytfield, was a much respected Writer to the Signet in Edinburgh, who, on his death in 1758, was the oldest member of the Society. His father, Francis Brodie, was born in 1708, and in 1740 married Cecil, daughter of William Grant, writer in Edinburgh, with whose family he was already connected. Both the Deacon’s grandfathers, therefore, were members of the legal profession.

There will be found in the Appendix a copy of a MS. Register of Births and Deaths kept by Francis Brodie in his family Bible, together with some account of that interesting volume, from which it appears that William was the eldest of eleven children, most of whom died in infancy. The entry relating to his birth has been cut out of the Register, presumably on his public disgrace some forty-seven years later.

Francis Brodie was a substantial wright and cabinetmaker in the Lawnmarket of Edinburgh, where he carried on an extensive and prosperous business. In 1735 he was made a Burgess, and in 1763, a Guild Brother of his native burgh. That he stood high in the estimation of his fellow-craftsmen is evidenced by his being, in 1775 and 1776, elected a member of the Town Council as Deacon of the Incorporation of Wrights, and again in 1779 and 1780, in the same capacity; while in 1776 he also represented the Incorporated Trades of the city as their Deacon Convener. A further proof of the position and circumstances of the family is to be found in the fact that the close in which their house was situated became known by their name.

This mansion, the most important in the close, was originally the town residence of the Littles of Craigmillar, having been built by William Little, a magistrate of Edinburgh, in 1570, whose brother, Clement Little, was the founder of the University Library. In the earlier titles of the property the close bears the name of its old residenters; but in Edgar’s map of 1742 it appears as Lord Cullen’s Close, from the eminent judge, Sir Francis Grant of Cullen, who in turn resided there. Brodie’s Close was formerly a “throwgang” or thoroughfare passing from the Lawnmarket to the Cowgate, the upper portion of which alone has escaped the “improvements” that have so effectively changed the features of this part of the Old Town. The area occupied by the Deacon’s dwelling is now covered by Victoria Terrace, the building having been demolished about 1835, when the principal carved stones of the mansion were transported by Clement Little’s descendants, in whose possession the property remained, to the garden of the family seat, Inch House, near Liberton, as relics of the habitation of their ancestors. The lower extremity of the close, in which were situated the Deacon’s workshops and woodyard, survived until a later date, the last traces of it disappearing to make way for the foundations of the Free Library.

In the fine old tenement at the head of the close—often erroneously described as Brodie’s residence—is still to be seen the decorated hall of the Roman Eagle Lodge, a famous Masonic society of the eighteenth century, immediately beyond which, on the east side of an open court, stood the Deacon’s house. It is thus described by Chambers in his “Traditions of Edinburgh” as it existed in 1825—“Brodie’s house is to be found in its original state, first door up a turnpike stair in the south-east corner of a small court near the foot of the close. The outer door is remarkable for its curious, elaborate workmanship. The house is well built, and the rooms exhibit some decorations of taste. The principal apartment, of which the ceiling is remarkably high, contains a large panel painting of the ‘Adoration of the Wise Men,’ and has an uncommonly large arched window to the west.” What became of this painting, which was attributed to Alexander Runciman, is now unknown.

Of the early years of William Brodie we have, unfortunately, no record, but it may be assumed that he received an education suitable for the son of a well-to-do burgess. He was apprenticed

Foot of Brodie’s Close, Cowgate.
(From a Drawing by Bruce J. Home.)

to his father’s trade, and in due time became associated with him in his thriving business. In those days no self-denying ordinance obtained in the Town Council, and Francis Brodie’s municipal connection secured for him and his son the most of the city work. The young man had the ball at his foot, as the saying goes, and only good behaviour and application to business were required for the attainment of an assured position. Unhappily for himself, however, he soon exhibited that taste for dissipation which ultimately led to such dire results; and while his days were occupied in following his respectable employment, in which he speedily obtained proficiency, his nights were largely devoted to gambling and kindred pursuits.

The social customs of the time were not conducive to steadiness and sobriety among the youthful citizens. It was the Edinburgh of Humphrey Clinker and of Topham’s Letters; the “Auld Reikie” of Fergusson’s convivial muse—

Auld Reikie! wale o’ ilka town
That Scotland kens beneath the moon;
Whare couthy chiels at e’ening meet
Their bizzing craigs and mou’s to weet:
And blythly gar auld Care gae bye
Wi’ blinkit and wi’ bleering eye.

The early hours of the evening were at that period universally spent by Edinburgh tradesmen in one or other of the innumerable taverns of the old town. So soon as the business of the day was over, as Fergusson tells us—

When auld Saunt Giles, at aught o’clock,
Gars merchant louns their shopies lock,
There we adjourn wi’ hearty fock
To birle our bodies,
And get wharewi’ to crack our joke,
And clear our noddles.

“All the shops in the town,” says Chambers, “were then shut at eight o’clock, and from that hour until ten—when the drum of the Town Guard announced at once a sort of licence for the deluging of the streets with nuisances, and a warning of the inhabitants home to their beds—unrestrained scope was given to the delights of the table.” At the latter hour the more reputable roysterers sought their homes; but it was then that the clubs, which formed so prominent a feature of the old city life, began the business of the evening. Fergusson, who has given us in his incomparable “Auld Reikie” a glowing picture of the Edinburgh of his day, thus alludes to the subject—

Now Night, that’s cunzied chief for fun,
Is wi’ her usual rites begun;
Thro’ ilka gate the torches blaze,
And globes send out their blinking rays.

Now some to porter, some to punch,
Some to their wife, and some their wench,
Retire, while noisy ten-hours drum
Gars a’ your trades gae dandring home.
Now mony a club, jocose and free,
Gi’e a’ to merriment and glee;
Wi’ sang and glass, they fley the pow’r
O’ care that wad harass the hour.

But chief, O Cape! we crave thy aid,
To get our cares and poortith laid:
Sincerity, and genius true,
Of Knights have ever been the due:
Mirth, music, porter deepest dy’d,
Are never here to worth deny’d;
And health, o’ happiness the queen,
Blinks bonny, wi’ her smile serene.

Of this, the most famous of the Edinburgh social clubs, Brodie was admitted a member on 25th February, 1775. The Cape Club usually held its festivals in James Mann’s tavern, facetiously known as “The Isle of Man Arms,” situated in Craig’s Close. The roll of the Knights Companions of the Cape contains many celebrated names, including those of David Herd, the antiquarian; Robert Fergusson, the poet; Alexander Runciman, the painter; and Sir Henry Raeburn—William Brodie’s election occurring four months after Fergusson’s death. Each member was required to assume some fanciful title, Brodie taking that of “Sir Lluyd.” On the margin of the roll prefixed to the minute-book an ingenious member has drawn a representation of his last public appearance on the new drop, some thirteen years later. The insignia of the Sovereign of the Cape are in the possession of the Society of Antiquaries, together with the club records, excerpts from which relating to Deacon Brodie will be found in the Appendix.

Had young Brodie been satisfied with the legitimate and very ample convivialities afforded by the Cape Club it would have been better for himself. But he became a frequenter of a disreputable tavern kept by James Clark, vintner, at the head of the Fleshmarket Close, where gambling by means of

Cock-fighting Match between the Counties of Lanark and Haddington in 1785, at which Deacon Brodie was present.
(After Kay.)

dice was nightly practised in a select company of sharpers and their dupes. It is probable that this house still survives in the truncated portion of the close remaining between the High Street and Cockburn Street. He also developed, among other “gentlemanly vices,” a passion for cock-fighting, at that time a fashionable recreation among the young bloods of the capital, and was a regular attender at the mains held in the cock-pit belonging to Michael Henderson, stabler in the Grass-market, of whom we shall hear further in the sequel. Brodie, who is said to have lost large sums in betting on his favourite sport, was present, among other “eminent cockers,” at the historic match between the counties of Lanark and Haddington, of which an account is given in “Kay’s Portraits.” In allusion to this contest, Kay observes—“It cannot but appear surprising that noblemen and gentlemen, who upon any other occasion will hardly show the smallest degree of condescension to their inferiors, will, in the prosecution of this barbarous amusement, demean themselves so far as to associate with the very lowest characters in society.” Brodie himself kept game-cocks in a pen in his woodyard, and retained to the last his attachment to the “art of cocking.” Between his bets at the cock-pits and his gambling at Clark’s, the young man must have got rid of a good deal of money; and it is believed that he had already begun to supplement his income by the nefarious means which later he certainly employed.

One night in August, 1768, the counting-house of Johnston & Smith, bankers in the Exchange, was entered by means of a false key, and upwards of £800 in bank notes carried off. Two nights afterwards £225 of the money was found, wrapped in paper, at the door of the Council Chamber; but the balance was never recovered, and no clue to the delinquent could be obtained. The discovery, many years afterwards, of Deacon Brodie’s exploits induced a strong suspicion that he was concerned in the affair. It was then recollected that, prior to the robbery, the Deacon had been employed in making various repairs on the premises, and had frequent occasion to be in the bank. The key of the outer door, from which it was ascertained he had taken an impression in putty, usually hung in the passage, a custom of which the Deacon, as we shall find, often afterwards took unscrupulous advantage.

At this time, however, no one dreamt of suspecting Brodie, whose secret dissipations were known only to his disreputable associates. Outwardly he was following worthily in his father’s footsteps, and, on 9th February, 1763, was, like him, made a Burgess and Guild Brother of Edinburgh. In September, 1781, he also became a member of the Town Council as Deacon of the Incorporation of Wrights, and his connection with the Council continued from that date till the year before his apprehension, as follows:—Deacon of the Wrights in 1782 and 1783; Trades Councillor in 1784, and, again, Deacon of the Wrights in 1786 and 1787. In 1785 he was not a member of the Town Council. Robert Fergusson, in his poem, “The Election,” has, with his usual felicity, portrayed the humours of an Edinburgh municipal election according to the old mode, when—

... Deacons at the counsel stent
To get themsel’s presentit:
For towmonths twa their saul is lent,
For the town’s gude indentit.

The minute of Deacon Brodie’s last election, on 20th September, 1786, will be found in the Appendix, together with other excerpts from the Council records, bearing upon his official life.

In the new Deacon’s first year of office occurred the political contest between Sir Laurence Dundas, who had represented the city in Parliament from 1760 to 1780, and William Miller, afterwards Lord Glenlee. The Town Council was divided into two hostile camps, and extraordinary efforts were made by each party to secure the return of its own candidate. Both claimed to have been duly elected member for Edinburgh; but, as the result of a parliamentary inquiry, Sir Laurence retained the seat. Deacon Brodie made a conspicuous figure in this election by keeping back his promise to vote for either party, in consequence of which he became a man of great moment to both the candidates, because upon his vote the election turned.

On 1st June, 1782, Convener Francis Brodie “died of the Palsy att his own house in Edinburgh, att 5 o’clock afternoon, in the 74th year of his age”; and William, his son, reigned in his stead. We read in the Annual Register for 1788—“However extraordinary it may appear, it is a certain fact that Mr. Brodie at the death of his father, which happened about six years ago, inherited a considerable estate in houses in the city of Edinburgh, together with £10,000 in specie; but by an unhappy connection and a too great propensity to that destructive, though too predominant passion, gaming, he is reduced to his present deplorable situation.” That the Deacon owned some heritable property other than the family mansion in Brodie’s Close, appears from a statement by the author of “Kay’s Portraits” (1877, vol. I., pp. 141-2). It is there said that a house in Gourlay’s Land, Old Bank Close, was purchased from the trustee for the Deacon’s creditors in 1789 by William Martin, bookseller and auctioneer in Edinburgh, who subsequently sold the property to the Bank of Scotland in 1793. From the state of affairs, which he prepared at a later date as aftermentioned, it is evident that Brodie owned, in addition to this property, three other tenements, respectively situated in Horse Wynd, at the Nether Bow, and in World’s End Close. We also find from the Council records that, in 1785, he was speculating in the building lots of the New Town.

The “unhappy connection” above mentioned refers to the Deacon’s two mistresses, Anne Grant and Jean Watt. Anne Grant resided in Cant’s Close, and her relations with William Brodie must have been long continued, for she had borne three children to him, the eldest, Cecil, being a girl of twelve at the time of his trial. To Anne Grant he addressed one of the letters written after his escape from Scotland, by which, as will be seen, he was traced and brought to justice. Jean Watt, by whom he had two boys, lived in Libberton’s Wynd, close to his own house, and was the principal witness to the alibi attempted to be set up for him at his trial. Each of these women was presumably ignorant of the other’s existence, and the Deacon’s connection with both appears to have been unknown to his family and friends. After his father’s death his sister, Jean Brodie, presided over his household; his other sister, Jacobina, to whom he refers in his letters as “Jamie,” having married Matthew Sheriff, an upholsterer in Edinburgh.

It seems incredible, regard being had to the confined and crowded stage on which the old city life was played, that Deacon Brodie’s protracted peccadilloes escaped the notice of those “stairhead critics,” who, Fergusson tells us—

Wi’ glowring eye,
Their neighbours’ sma’est faults descry.

But, if the facts were generally known, the estimable reputation which he nevertheless enjoyed is characteristic of the social conventions of his day.

Had it not been for the Deacon’s unhappy propensity for gambling and dissipation, his circumstances at this time should have been highly satisfactory. During his term of office he was regularly employed by his fellow-Councillors to execute wrightwork in connection with the town—his accounts for the year 1782-3, for instance, amounting to upwards of £600. In addition to the city work, his social and official position had secured for him the best cabinetmaking business in Edinburgh; but, notwithstanding these advantages, he was frequently at a loss for money.

Deacon Brodie was already, in Stevenson’s striking phrase, “a man harassed below a mountain of duplicity,” and to one so circumstanced it is not surprising that the idea occurred of putting his professional opportunities to an unlawful use. He knew the locks and bolts of all the houses of his customers; was familiar with their internal arrangements and the habits of the owners; and could, without incurring remark, exhibit in such matters a professional interest in the houses of his friends and acquaintances. No doubt he was sometimes consulted, at a later stage, as to the best means of defence against his own infraction. He was shortly, as we shall see, to become the leader of a gang of robbers, whose mysterious depredations, under his skilful conduct, were, during eighteen months, to baffle the authorities and strike terror to the hearts of wealthy burgesses; but at the outset of his career of crime the Deacon worked alone.

“Many a citizen,” says Stevenson, “was proud to welcome the Deacon to supper, and dismissed him with regret at a timeous hour, who would have been vastly disconcerted had he known how soon, and in what guise, his visitor returned. Many stories are told of this redoubtable Edinburgh burglar, but the one I have in my mind most vividly gives the key of all the rest. A friend of Brodie’s, nesting some way towards heaven in one of these great ‘lands,’ had told him of a projected visit to the country, and afterwards, detained by some affairs, put it off and stayed the night in town. The good man had lain some time awake; it was far on in the small hours by the Tron bell; when suddenly there came a creak, a jar, a faint light. Softly he clambered out of bed and up to a false window which looked upon another room, and there, by the glimmer of a thieves’ lantern, was his good friend the Deacon in a mask.”

Another story, illustrative of the methods of this pioneer of amateur cracksmen, is as follows:—One Sunday an old lady, precluded by indisposition from attending the kirk, was quietly reading her Bible at home. She was alone in the house—her servant having gone to church—when she was startled by the apparition of a man, with a crape over his face, in the room where she was sitting. The stranger quietly lifted the keys which were lying on the table beside her, opened her bureau, from which he took out a large sum of money, and then, having locked it and replaced the keys upon the table, retired with a respectful bow. The old lady, meanwhile, had looked on in speechless amazement, but no sooner was she left alone than she exclaimed, “Surely that was Deacon Brodie!”—which subsequent events proved to be the fact.

On both of these occasions it is to be noted that, although the Deacon was recognised, no action was taken by his victims. In the first instance the man hesitated to denounce his friend; in the second the old lady preferred to doubt the evidence of her senses—a striking proof of the advantages conferred by a respectable reputation.

Apart altogether from the question of gain, it is probable that Deacon Brodie, in adopting these criminal courses, was influenced by the dramatic possibilities of his new part. The minor duplicities which hitherto he had so successfully practised would thus be capable of development upon a larger stage; and, to one of his peculiar temperament, the prospect doubtless afforded fascinating opportunities for deception. To rob a friend’s house of an evening, and in the morning condole with him upon his loss; to carry through some daring burglary overnight, and gravely deliberate next day in the Council Chamber as to offering a reward for discovery of the perpetrator—these were situations after the Deacon’s heart.

Throughout the whole course of the robberies which we are about to consider, it is to be kept in view that Deacon Brodie retained the respect and esteem of his fellow-citizens—for his reputation among the associates of his secret life is immaterial; daily pursued his lawful avocations; and regularly attended the meetings of the Council, taking his share in the conduct of the town’s affairs. And so masterly was his performance of this dual rôle that no suspicion of the Deacon’s integrity was aroused, until the failure of the “last fatal” business of the Excise Office and the treachery of an accomplice shattered, at once and for ever, the elaborate fabric of his deceit.

We can form a vivid impression of the appearance of Deacon Brodie about this time from the description of him which was circulated some two years later. From this it appears that he was a small man—“about 5 feet 4 inches”—of a slender build, and looking younger than his age. He had “dark brown, full eyes, with large black eyebrows, and a cast with his eye that gave him somewhat the look of a Jew,” a sallow complexion, and a peculiar manner of speaking, “which he did full and slow.” From the minute details of his dress and toilet it is evident that the Deacon was something of a dandy, or, in the language of the day, “a macaroni.” He had also “a particular air in his walk, and moved in a proud, swaggering sort of style,” while the advertisement includes such particulars as the size of his ankles and the turn of his calves. We shall afterwards find that this very candid portrait was not appreciated by its original.

About the month of July, 1786, there arrived in Edinburgh a man who was to exercise a powerful influence for evil upon the Deacon’s fortunes. This was George Smith, a native of Boxford, near Newburgh, in Berkshire, who was travelling the country as a hawker with a horse and cart. He was a stranger to Edinburgh, and put up at Michael Henderson’s house in the Grassmarket, having heard it mentioned on the road as a traveller’s inn. Soon after his arrival he fell sick, and, his illness lasting for some four months, he was reduced to selling his goods, and finally his horse, in order to support himself and his wife, for whom he had meanwhile sent into England to join him. Among the frequenters of Michael Henderson’s tavern were two men, Andrew Ainslie and John Brown alias Humphry Moore, of whom, prior to their doings in connection with the robbing of the Excise Office, but little is known. Ainslie is designed in the Crown list of witnesses as “sometime shoemaker in Edinburgh,” but his attention to his professional practice was less marked than his addiction to dicing and the company of cheats. Brown—like Smith, an Englishman—was a noted sharper, and had been convicted of theft at the Old Bailey in April, 1784, and sentenced to transportation beyond the seas for a term of seven years. He had, however, contrived to escape from justice, and was then lurking in Edinburgh, ready for any villainy that might prove remunerative.

With these two agreeable acquaintances Smith beguiled the tedium of convalescence in various games of hazard, in which, owing to the skill of the players, but little was left to the blindness of Fortune; and at this time he first made the acquaintance of Deacon Brodie, who, in connection with his cock-fighting proclivities, had long been a patron of the house. It is probable that, at this juncture, the Deacon’s resources were at a low ebb. Notwithstanding the income he derived from his varied interests and pursuits, his passion for gambling was a constant drain upon his purse, and the expense of maintaining no less than three establishments at once must also have been considerable, while the success of his earlier robberies doubtless induced him to extend his future operations by the assumption of a partner.

Be that as it may, we have it from Smith’s second declaration that Brodie, early in the intimacy which, in spite of the disparity in their social positions, speedily sprang up between them, suggested to him in the course of conversation “that several things could be done in this place, if prudently managed, to great advantage, and proposed that they should lay their heads together for that purpose.” Smith is said to have been at one period of his career a locksmith in Birmingham, and his abilities in this direction may have first led the Deacon to select him as an accomplice. From the readiness with which Smith embraced this proposition we may assume that his past record was not so blameless as he would have us believe.

In the following account of the burglaries (other than that of the Excise Office) committed by Deacon Brodie and his associates, the details are given from the various statements made by Smith, and, so far as possible, in his own words; but there is good reason for believing that these by no means disclose the full extent of the depredations for which the gang was responsible.

When the invalid was sufficiently recovered, the new friends, “in consequence of this concert, were in use to go about together in order to find out proper places where business could be done with success.” In the course of these interesting excursions, Smith relates that one evening in November, 1786, they visited a hardware shop in Bridge Street belonging to Davidson M‘Kain, armed with false keys, an iron crow, and a dark lantern. Having opened the outer door, Smith entered the shop, his companion remaining outside to watch. Smith was inside for about half-an-hour, and Brodie, becoming impatient, called out what made him stay so long—was he taking an inventory of the shop? The result appears to have been disappointing; but among the goods removed was a red pocket-book, which Smith presented, as a token of gratitude, to “Michael Henderson, stabler in Grassmarket, his daughter.”

About a fortnight later the two worthies again repaired to M‘Kain’s shop with the view of making a more thorough clearance. The same methods were adopted; but before Smith could get to work he was disturbed by movements in a neighbouring room, and fled, shutting the shop door after him. Brodie had already beaten a retreat. A little later, however, the pair walked arm-in-arm down Bridge Street to reconnoitre the premises, but, seeing a man on the watch, “and a guard soldier standing opposite at the head of the stair which goes down to the Fleshmarket, they passed along the bridge, and afterwards went to their several homes, as nothing could be done further that night.” This, according to Smith, was their first joint depredation; but there is reason to believe that a much more important robbery, which was committed on 9th October, the previous month—when a goldsmith’s shop near the Council Chambers was broken into and many valuable articles carried off—was also the Deacon’s handiwork.

An ostensible occupation had been found for Smith, and he was established in a house in the Cowgate, where his wife and he kept a small grocery shop. Brodie had now introduced his new friend to his own favourite “howff”—Clark, the vintner’s at the head of the Fleshmarket Close—where it was their habit to foregather nightly for the purpose of gambling and discussing future opportunities for the exercise of their felonious talents. Hither, also, came Ainslie and Brown, from the lodging which they occupied together at the foot of Burnet’s Close, but who were not yet admitted to share the others’ councils. On 8th December, we read that “the shop of John Law, tobacconist in the Enchange, was broken into, and a cannister containing between ten and twelve pounds of money carried off.” This robbery, though not confessed to by Smith, was probably committed by him and Brodie.

Stimulated to further efforts by the inadequate results of these operations, the Deacon now proposed to Smith a more important undertaking. He had recently been employed by the magistrates, in consequence of the lowering of the streets, to alter the door of the shop in Bridge Street belonging to Messrs. John & Andrew Bruce, jewellers, there. This, he said, “would be a very proper shop for breaking into,” as it contained valuable goods, and his familiarity with the lock would make it an easy matter to effect an entrance. It was accordingly agreed that they should meet at Clark’s on the evening of Saturday, 24th December, for the purpose of carrying out the robbery. Arriving there, they fell to playing hazard with other members of “the club,” as it was called by the questionable characters who frequented the house, and Smith, the luck being against him, soon lost all his money. Brodie, on the other hand, was winning steadily, and refused to leave, turning a deaf ear to his friend’s repeated reminders that business should come before pleasure and their work awaited them. It was nearly four in the morning when Smith decided to wait no longer, “as the time for doing their business was going,” and started by himself upon the exploit. The lock presented no difficulties, and, by the light of his dark lantern, he was able to reap an excellent harvest. “Ten watches, five of them gold, three silver, with the whole rings, lockets, and other jewellery and gold trinkets in the show-boxes,” were all stuffed into two old black stockings and carried by Smith to the hospitable Mr. Henderson’s stable, where he hid them in a manger, and was at last free to seek the shelter of his grocery establishment in the Cowgate.

Smith was up betimes on the Sunday, and by eight o’clock was “tirling” at the door in Brodie’s Close, to inform the Deacon of what he had missed. The maid told him, however, that her master was still in bed, so Smith left a message that he wanted to see him, and returned home. Later in the day the Deacon called upon him, and Smith, having meantime fetched the black stockings from the Grassmarket, poured out upon the bed their glittering contents, remarking, “You see what luck I have been in; you might have been there, but, as you did not go, you cannot expect a full share. But there are the goods; pick out what you choose for yourself”—which certainly seems handsome behaviour on Smith’s part, although Brodie afterwards complained that he had been treated badly in the matter. The Deacon accordingly selected for his own use a gold seal, a gold watch-key set with garnet stones, and two gold rings. They valued the whole articles at £350 sterling, and must have been good judges, for that was the figure which the owners themselves subsequently put upon the goods.

That same day they walked past Bruce’s shop several times to see if the robbery had been discovered, but found everything as they had left it. Delighted at the success of his coup, Smith boldly proposed returning that night “in order,” as he said, “to sweep the shop clean,” but Brodie dissuaded him from so hazardous an attempt. They then consulted as to the safest means of disposing of the goods, with the result that, on the following Wednesday, Smith set off with them on foot to Dunbar, and from thence took the mail-coach to Chesterfield, where he parted with them to one John Tasker alias Murray—who had previously been banished from Scotland—for £105. The Deacon had advanced five and a half guineas for the expenses of the journey, and, on his return, Smith repaid this sum, and entrusted Brodie with the balance to keep for him, and give him as he required it; but Brodie “gained a great part of it at play.” The Deacon, therefore, did not do so badly after all.

Head of Brodie’s Close, Lawnmarket.
(From a Drawing by Bruce J. Home.)

It is interesting to note in passing that during this period—the winter of 1786-7—Deacon Brodie had for an opposite neighbour no less a person than Robert Burns. While the poet was sharing his friend Richmond’s lodgings in Baxter’s Close, Lawnmarket, there also dwelt in the adjacent Wardrop’s Court Alexander Nasmyth, the artist, whose portrait of Burns was painted at this time. It is probable that the poet, the painter, and the Deacon foregathered with other kindred spirits at Johnnie Dowie’s tavern in Libberton’s Wynd, the recognised resort of the Edinburgh wits of that day.

The partners seem to have rested satisfied with the substantial profits of their last transaction for a considerable time, for the next robbery of which we have any details was not carried out till 16th August, 1787. In this, for the first time, they had the advantage of Ainslie’s assistance, he being taken into their confidence for that end. The three repaired to Leith, to the shop of John Carnegie, a grocer at the foot of St. Andrew Street, which Ainslie and Smith entered by means of pick-locks—Brodie remaining without to watch—and carried off “350 pounds of fine black tea,” at that period a very valuable haul. Two wallets were filled from the chests in the shop, but “Ainslie being ill at this time and Brodie being weakly,” they were forced to abandon one of the wallets, which they hid in a shed in a field by the Bonnington Road, where it was afterwards recovered. The Deacon objected to the other wallet being taken to his house, and what became of it is not known.

In their next undertaking the company was raised to its full strength by the accession of John Brown alias Humphry Moore, whose previous experiences in England eminently qualified him to take an important part in such criminal enterprises. Brown appears to have been spending the autumn in Stirlingshire, but his visit was suddenly brought to a close in September on his banishment from that county by the Justices of the Peace for a theft committed by him within their jurisdiction. This was a more boldly conceived robbery than the gang had yet attempted—no less than the theft of the silver mace belonging to the University of Edinburgh. The Deacon, in the course of those walks with Smith, in which healthful exercise was combined with an eye to business, “carried” the latter “to the College Library, where, having observed the mace standing, Brodie said that they must have it.” Ainslie was accordingly sent to see where the mace was usually kept, and reported that it was in the Library, where the others had seen it. Accordingly, on the night of 29th October, 1787, the quartet proceeded to the University. “Having got access at the under gate, they opened the under door leading to the Library with a false key, which broke in the lock; and thereafter they broke open the door of the Library with an iron crow, and carried away the College mace.” The magistrates offered a reward of ten guineas for a discovery of the thieves, but without success. The mace was forthwith despatched to the accommodating Tasker, of Chesterfield, at the appropriate address of the “Bird in Hand,” and the macer thereof knew it no more.

Brown appears entitled to the credit of planning the next robbery, and took a leading part in its execution. In those days the merchants of Edinburgh usually resided above their business premises, and the key of the shop was hung on the inside of the door—a habit highly appreciated by the Deacon’s little band. Brown brought to Smith the key of a shop belonging to one John Tapp, which, he said, also opened the door of that gentleman’s house; and Smith, having cast a professional eye over same, assured him “there was nothing in it.” Thereafter, one evening about Christmas time, between nine and ten o’clock, Brown dropped in upon John Tapp, whom he detained in his shop over a friendly and seasonable bottle. His associates, meanwhile, opened the house door with a false key and rifled the good man’s repositories, making off with “eighteen guinea notes, and a twenty shilling one, a silver watch, some rings, and a miniature picture of a gentleman belonging to Tapp’s wife, which picture they broke for the sake of the gold with which it was backed.” One wonders if Mrs. Tapp mentioned the loss to her husband. These valuables accompanied the mace to Chesterfield, where John Tasker alias Murray seems to have driven a brisk, though illegitimate, trade, along with a letter to him, written by Brown in Smith’s name, arranging for their disposal.

Soon after this the Deacon, ever on the alert for a good stroke of business, suggested to his partners the “doing” of the shop of Messrs. Inglis & Horner, silk mercers at the Cross of Edinburgh, “as the goods there were very rich and valuable, and a small bulk of them carried off would amount to a large sum.” He and Smith frequently went to examine the padlock, “which they did most commonly on the Sunday forenoon when the people were in church.” They found this necessary, as the lock proved to be of a difficult construction. Brodie made a key for it himself, and went one night alone to test its efficacy, probably with the view of stealing a march upon the rest, and doing a little private practice outwith the knowledge of his colleagues. When he tried the key, however, although it unlocked the padlock it would not lock it again, and he had to disclose the state of matters to the others. On learning of his attempt “they were all very angry with him, and said that he had more than likely spoilt the place after all the trouble they had been about; but Brodie told them he hoped not, as he had fixed the padlock with a bit stick in a way that it would not be discovered, and upon looking at the place afterwards, which they all did, they found the lock to be just as it was.” Eventually Smith made a key that was more reliable, and on the night of 8th January, 1788, an entry was effected, and silks and cambrics to the value of between £300 and £400 successfully removed.

Next day a reward of £100 was offered by the Procurator-Fiscal for the discovery of the criminals, but, as usual, without success. The owners, however, did not let the matter rest there, and on their representations the Government, on 25th January, offered an increased reward of £150 to any one who, within six months, would give such information as should lead to the discovery and conviction of the perpetrators, and twenty guineas for the names of the offenders whether they should be convicted or not. In addition, “His Majesty’s gracious pardon” was promised to any accomplice who should within the like period procure the apprehension of the guilty parties. Though this offer elicited no information at the time, it was, ultimately, as we shall see, the means of breaking up that dangerous association from whose depredations the inhabitants of the good town of Edinburgh had so long and severely suffered.

From the spoils of Inglis & Horner’s shop Smith tells us that Brown selected “a piece of plain white sattin, a piece of variegated ditto, and a lead-coloured silk, in quantity about ten yards, which he gave to a girl, an acquaintance of his of the name of Johnston.” One is pleased to notice in passing this indication of a gentler element in Mr. Brown’s rugged nature. The remainder of the goods were concealed in a cellar which Ainslie had hired for the purpose in Stevenlaw’s Close, and were subsequently despatched in two trunks—one by the Berwick carrier and the other by the Newcastle waggoner—to our old friend at the “Bird in Hand,” Chesterfield. We shall hear more of them later.

The reader must have been struck, in following the account of the robberies committed by Deacon Brodie, with the singular incapacity displayed by the official guardians of the public safety. These were the Old Town Guard, a body of armed police which existed in Edinburgh from an early date until 1817, when it was finally disbanded. The corps was composed of some hundred and twenty veterans, chiefly drawn from the Highland regiments, who were in continual conflict with the youth of the capital. Fergusson, in his poems, has many a hit at the peculiarities of this “canker’d pack”—

And thou, great god of aqua vitæ!
Wha sways the empire of this city—
When fou we’re sometimes capernoity—
Be thou prepar’d
To hedge us frae that black banditti,
The City Guard.

Indeed, so frequently does he refer to them that Scott, in “The Heart of Midlothian,” calls him their poet laureate. Evidently these antiquated warriors were no match for the Deacon and his merry men.

Notwithstanding the many calls upon his time, owing to the varied character of his engagements and pursuits, Deacon Brodie managed to drop in at the club in the Fleshmarket Close of an evening as frequently as ever, and, in spite of the magnitude of his recent operations, was not above winning a few guineas from any one foolish enough to lose them. On the night of the 17th of January, therefore, Brodie, Smith, and Ainslie were at Clark’s, according to their own account, “innocently amusing themselves with a game of dice over a glass of punch,” when their privacy was intruded upon by John Hamilton, a master chimney-sweep in Portsburgh, who insisted on joining them at play. This person was, within a surprisingly short time, relieved by the trio of “five guinea notes, two half guineas in gold, and six shillings in silver,” and being apparently a bad loser, he promptly seized the dice, which, on examination, were found to be “loaded, or false dice, filled at one end or corner with lead.” Here was a pretty scandal for the respectable Deacon to be mixed up in! Outraged innocence was of no avail—the dice spoke for themselves.

But the master sweep’s blood was up, and the matter was not allowed to end there. Hamilton forthwith presented to the magistrates of Edinburgh a petition and complaint against Brodie, Smith, and Ainslie, setting forth his meeting with them at Clark’s, and his being invited to join them in a friendly game, with the result above narrated. The petitioner concluded with praying for a warrant to apprehend and incarcerate the said persons until they should repeat the sum of which he had been so defrauded, and pay a sum over and above in name of damages and expenses. Answers were lodged for Brodie, and separate answers for Smith and Ainslie, in which it was stated that if false dice were used it was unknown to the defenders, as the dice they played with belonged to the house; that Brodie had only gained seven and sixpence; and that “the petitioner himself was a noted adept in the science of gambling, and it was not very credible that he would have allowed himself to be imposed upon in the manner he had alleged.”

Hamilton’s replies to these answers are conceived in a fine vein of irony—“Mr. Brodie knows nothing of such vile tricks—not he! He never made them his study—not he! Mr. Brodie never haunted night houses, where nothing but the blackest and vilest arts were practised to catch a pigeon, nor ever was accessory, either by himself or others in his combination, to behold the poor young creature plucked alive, and not one feather left upon its wings—not he, indeed! He never was accessory to see or be concerned in fleecing the ignorant, the thoughtless, the young, and the unwary, nor ever made it his study, his anxious study, with unwearied concern, at midnight hours, to haunt the rooms where he thought of meeting with the company from which there was a possibility of fetching from a scurvy sixpence to a hundred guineas—not he, indeed! He is unacquainted altogether either with packing or shuffling a set of cards—he is, indeed!” This, one would think, must have been painful reading for the Deacon’s fellow-Councillors; but nothing further appears to have been done in the matter, and the affair blew over without damaging the worthy man’s repute: a singular comment on the moral standard of the time.

In spite of the consummate skill with which Deacon Brodie had hitherto sustained his double character, one is hardly prepared, in view of his manner of life, to find him figuring in a criminal trial in any other capacity than that of the central figure. Strange as it may seem, however, his next public appearance was in the jury-box of the High Court of Justiciary, when, on 4th February, 1788, Allan M‘Farlane, officer of Excise, and Richard Firmin, soldier in the 39th Regiment of Foot, were placed at the bar charged with the murder of Dougald Fergusson, ferryman at Dunoon, Argyllshire.

The facts brought out at the trial were, briefly, as follows:—A party of Excise officers, accompanied by some soldiers, had, in the previous July, gone to Dunoon and seized certain illicit stills, which they put on board their boat. Fergusson, a zealous freetrader, had rung the kirk bell, assembled a mob, who pelted the officers with stones, and, boarding the boat, had knocked down the two boatmen and attempted to carry off the stills. In these circumstances, M‘Farlane ordered Firmin to fire, which he did, killing Fergusson on the spot. The charge against Firmin was abandoned by the Lord Advocate in his address, as it was proved that he had only acted under orders; and the point for the jury to consider was whether M‘Farlane was justified in giving the order to fire in self-defence, in view of the danger to which the Excise party were exposed from the hostile mob behind them, had Fergusson succeeded in carrying off the boat. The jury unanimously found both panels not guilty.

Thus did the Deacon, at the very time when all Edinburgh trembled at his depredations and the authorities were straining

The Old Excise Office, Chessel’s Court, Canongate.
(From a Drawing by Bruce J. Home.)

every nerve to discover the guilty author, calmly officiate upon a jury to judge of the crimes of others. But, although he may have laughed in his sleeve at this ironical situation—for he had a pretty wit, and doubtless relished the humour of it keenly—fate had prepared for him one yet more dramatic. A few months later he himself would sit in that dock on trial for his life, the same counsel would conduct the prosecution, the same judges occupy the bench; but the verdict would be a different one, and the sentence to follow upon it, death.

Undisturbed by any shadow of coming disaster, and emboldened by his previous successes, Deacon Brodie now decided to carry out a robbery upon a grander scale than any he had previously attempted, the daring and danger of which were commensurate with the advantages to be gained. The General Excise Office for Scotland was at that period kept in a large mansion, enclosed by a parapet wall and iron railing, situated in Chessel’s Court, Canongate. The building had formerly been occupied as a dwelling-house, and was by no means a secure repository for the great sums of money which in those days were collected there from all parts of the country. The Deacon, in his professional capacity, was familiar with the arrangements of the office, his men having at various times executed repairs on the premises. A connection of his, Mr. Corbett, of Stirling, too, was in the habit of coming to Edinburgh frequently on Excise business, and Brodie took the opportunity of accompanying him upon these occasions with a view to studying how the land lay.

Having learned all that was necessary for his purpose, the Deacon went one day to the office with Smith, on pretence of inquiring for Mr. Corbett, and while he thus engaged the attention of the cashier, Smith took an impression in putty of the key of the outer door, which, according to the prevailing ingenuous custom, was hung upon a nail inside it. From this Brodie prepared a drawing of the wards, and Smith filed a key of similar pattern. The next step was to ascertain the habits of the watchman who guarded the premises, and for this purpose Ainslie—whose department seems to have been scouting—was deputed to observe the office on several successive nights. He found that it was usually closed for the day at eight o’clock; that when all the clerks had left the outer door was locked, and the key taken to Mr. Dundas, “the housekeeper,” who lived in the court, and that the night watchman did not come on duty until ten o’clock. The Excise Office was thus left wholly unguarded between the hours of eight and ten at night.

Smith and Brown had already tried the efficiency of the new key, which readily opened the outer door, but the lock of the inner door to the cashier’s room refused to yield to their persuasive methods. Smith was of opinion that its resistance could only be overcome by violence, observing that the coulter of a plough would be a suitable instrument for that purpose. Accordingly, on the afternoon of Friday, 28th February, Ainslie and Brown repaired to Duddingston as a likely spot for picking up such an implement. Having refreshed themselves after their walk with a bottle of porter at a house in the village, they entered a field in the neighbourhood, where they had seen a man ploughing, and, when his back was turned, removed the coulter of the plough and two iron wedges, which on their way home by the King’s Park they hid in Salisbury Crags. Unfortunately for themselves and Smith, they were accompanied upon this country ramble by a black dog, belonging to the latter, named “Rodney,” which, curiously enough, was at a later stage to bear testimony against its master before the Sheriff.

On Tuesday, 4th March, a final consultation was held by the four desperadoes at Smith’s house in the Cowgate to arrange the details of the attack upon the Excise Office, which was fixed for the following night, when, as they had ascertained, it was the turn of an old man, who watched night about with the other porter, to be on guard. According to Smith’s second declaration, “it was concerted by Brodie, in case of interruption by the man coming into the office before the business was accomplished, to conceal themselves quietly until he was gone to rest, and then to secure him; and they were, if this happened, to personate smugglers who came in search of their property that had been seized; and the declarant had a wig of Brodie’s father in his pocket in order to disguise himself.” Little did that decent old gentleman dream to what base uses his respectable wig would one day be assigned by his cynical and degenerate offspring. The Deacon also furnished Smith with a coil of rope to be knotted into a ladder, so that if taken by surprise they could lock the outer door of the office and make good their escape by the back windows into the garden behind. Having decided upon their plan of campaign, the meeting adjourned till the following afternoon.

Wednesday, the 5th of March, 1788, was a busy day for the Deacon. Between two and three o’clock he was back at Smith’s, attired in “the white-coloured clothes he usually wore,” with various requisites for the night’s adventure—pick-locks, false keys, an ivory whistle, “a strong chisel with a brass virral,” and a spur, which was to be left on the scene of the robbery, “to make it believed it had been done by some person on horseback, in order that it might appear, when found, to have dropped from the foot by its being torn by accident at the buckle.”

By three o’clock he was presiding in his own dining-room, with the panel painting and the great arched window, at a dinner-party consisting of his aunt, his two sisters, Matthew Sheriff, his brother-in-law, and “a stranger gentleman” whose identity was not disclosed. “We drank together,” says Mr. Sheriff, “from dinner to tea, which I think was brought in about six o’clock, and then the stranger gentleman went away.” Probably he thought discretion the better part of valour. The brothers-in-law, however, continued the sederunt till shortly before eight o’clock, when Sheriff retired to his residence in Bunker’s Hill—the name by which St. James’ Square was then known. The moment his guest had gone the Deacon, hastily attiring himself in an old-fashioned black suit, a cocked hat, and a light-coloured great-coat, put his pistols and dark lantern in his pocket, and hurried off to the business of the evening.

It had been arranged that the gang should assemble at Smith’s house at seven o’clock, since which hour the others had been impatiently awaiting their leader’s arrival. The Deacon was in a merry mood; his spirits were high as his hopes, and the potations of the afternoon had doubtless contributed to their elation. He burst in upon his anxious friends with a pistol in his hand, singing a stave from his favourite “Beggar’s Opera”—

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.

It was a raw and wintry evening of a type familiar to the Edinburgh spring—that “meteorological purgatory” of Stevenson; there had been a considerable fall of snow, followed by an intense frost, and few people were out of doors. Smith, Brown, and Ainslie were sitting in an upper room beguiling the time with a light refection of herrings and chicken, washed down by draughts of gin and “black cork,” i.e., Bell’s beer. Ainslie and Brown had, whenever it was sufficiently dark, brought the coulter of the plough and the iron wedges from their hiding-place in Salisbury Crags. No time was to be lost, and so soon as the Deacon arrived the final arrangements were quickly made. Three brace of pistols—one of which had been obligingly lent by Michael Henderson—were loaded by Smith with powder and ball, each member of the party, excepting Ainslie, being armed with a pair, “as they were determined not to be taken, whatever should be the consequence.” Three crape masks were also prepared for the use of Smith, Ainslie, and Brown. To Smith and Brown was appointed the task of forcing the doors and rifling the premises; the Deacon was to be stationed in the hall behind the outer door to prevent a surprise; while it was Ainslie’s duty to keep watch within the “palisadoes” outside the office, where, concealed by the parapet wall, he could command a view of the court and entry. Ainslie was provided with a whistle of ivory, purchased by Brodie the night before, with which, if the watchman appeared, he was to give one whistle, so that they might be prepared to secure him; and, if more than one man or any appearance of danger was perceived, he was to give three whistles, and then make the best of his way to the gardens behind, in order to assist the others in escaping by the back windows. Brodie, on hearing the signal, was, in turn, to give the alarm to Brown and Smith within the building.

In pursuance of this arrangement, Ainslie left first for the scene of action in Chessel’s Court, carrying with him the coulter, and, having taken up his position within the “palisadoes,” saw the porter come out with a light and lock the outer door behind him. Shortly thereafter Smith arrived. On hearing that the coast was clear, he lost no time in opening the front door with his false key and went into the office. He was followed five minutes later by Deacon Brodie, who, learning that Smith was within, but that Brown had not yet put in an appearance, went back up the court to look for him. They met in the entry and returned together, Brown explaining that, on his arrival, he had seen the old man who usually locked up the office leaving the court, and had dogged him home as a precautionary measure. Brown then inquired of Ainslie “whether or not he had ‘Great Samuel’?”—by which playful appellation he referred to the coulter—and Ainslie handed it to him through the railings. The Deacon and Brown then entered the office, leaving the outer door on the latch, behind which the former ensconced himself.

Smith had meanwhile opened the spring catch of the inner door with a pair of curling irons or “toupee tongs” which he had prepared for that purpose, and was awaiting Brown in the hall. By means of the coulter and an iron crow—“Little Samuel,” in Brown’s humorous phraseology—the two burglars at length succeeded in forcing the door of the cashier’s room, and by the light of the Deacon’s lantern they proceeded to prize open every desk and press which it contained. In the cashier’s desk they found and appropriated two five-pound notes, six guinea notes, and some odd silver; but after half-an-hour’s diligent searching their utmost efforts failed to discover the accumulated riches which they had confidently expected to secure.

In the hurry of the search, by a curious chance, a secret drawer, concealed beneath the cashier’s desk, containing no less than £600 sterling, escaped their notice.

Unwilling to accept their defeat, the two men were ransacking the desks afresh when they heard the front door open, but, supposing Brodie to be at his post, paid no attention. They were about to leave the room to prosecute their investigation of the premises when they heard some one come hastily down the stairs, “which made them stop or they must have met him.” Upon this Brown whispered, “Here must be treachery; get out your pistols and cock them!” They then heard the front door close with a crash. Perceiving that something was wrong, they now hastened into the hall, when, to their amazement, they found that the Deacon had vanished, and, on opening the door, that Ainslie also had disappeared. Cursing their ill luck and the defection of their companions, the puzzled burglars hurried through the court into the Canongate; and, quite at sea as to what had happened, made the best of their way to Smith’s house, leaving behind them in the office the heavy coulter and the spur which was designed to mislead the discoverers of the robbery.

We must now return to Ainslie, whom we left on the watch behind the railings. A servant girl, returning from a message to her master’s house in the court, saw him looking over the wall, and, “judging him to be a light or suspicious person”—in which diagnosis she was not far wrong—sought safety within doors. He had not been long at his post when the silence of the court was broken by the sound of a man running into it from the street, and Ainslie, peering through the railings, was alarmed to see him go in at the open door of the Excise Office. At the very moment of his entrance another man rushed from the doorway and fled at full speed up the court; and before Ainslie could recover from his surprise at this unlooked-for situation, a third man, as he supposed, came immediately out of the office and also disappeared towards the Canongate after the other.

The scanty oil lamps with which in those days the city was “illuminated” after nightfall served but as feeble foils to the surrounding darkness, and to Ainslie, in the dimly-lighted court, friend and foe were equally indistinguishable. These mysterious and unlooked-for doings proved too much for the watcher’s nerve; so, having hastily given the agreed-on signal of retreat by three blasts upon his whistle, he, too, made for the entry, and, turning down St. John’s Street, came through the gardens of the Canongate to the back of the Excise Office. Finding no trace of his associates there, Ainslie in his turn repaired to Smith’s.

The explanation of these occurrences, which had dispersed the gang in bewilderment and consternation, was singularly simple, but the issue might have been very different. Mr. James Bonar, Deputy Solicitor of Excise, had returned to the office about half-past eight o’clock to get certain papers which he had left in his room. Finding the outer door on the latch, he assumed that some of the clerks were still in the building, and was entering the office when the Deacon, who appears to have lost his usual presence of mind, bounced out from behind the door, and, brushing past him, fled hastily from the court. Mr. Bonar attached no importance to this incident, thinking the person belonged to the office, and, being pressed for time, ran upstairs to his own room, got what he wanted, and hastened from the building, slamming the outer door after him.

If Ainslie had not lost his head at the sudden entrance and exit of the Solicitor and the Deacon, but had blown his whistle, as he should have done, whenever the former appeared, Smith and Brown, rushing out with their pistols cocked, would have encountered Mr. Bonar in the lobby, and murder would doubtless have been done. As it was, that gentleman probably owed his life to the pusillanimity of Ainslie and Brodie, the latter of whom could, from his ambush, easily have closed with him as he entered the hall.

After his undignified flight from the Excise Office, Deacon Brodie reached his own house about nine o’clock, where he once more changed his attire, putting on the fine white suit he usually wore. He then hurried to the house of his mistress, Jean Watt, in Libberton’s Wynd, where he remained till the following morning. Meanwhile, at Smith’s house the other three were discussing the disappointing result of the night’s expedition and indulging in mutual recriminations. The non-appearance of Brodie added to their uncertainty, and they parted for the night in no amiable mood, Ainslie and Brown going over to the New Town, where, in a tavern kept by one Fraser, they sought consolation in a bowl of punch. The next day—Thursday—the Deacon came to Brown and Ainslie’s lodging in Burnet’s Close and laughingly told them that Smith had accused him of deserting his post the previous night. He was received but sourly by Brown, who made no secret of sharing Smith’s opinion. These, however, were minor matters, the vital question being whether or not suspicion would be directed to themselves. It was arranged that they should all meet at Smith’s the following night, when the sixteen pounds—miserable recompense of so much risk and labour!—was to be equally divided among them.

Accordingly, upon the Friday evening, in the upper room of Smith’s house, each man received his share, amounting to a little over four pounds. Ainslie, to whom Brodie owed a “debt of honour,” took occasion to require payment, and got one of the five-pound notes and some gold from him. The Deacon, who had staked infinitely more, thus made less than any of them by the adventure. Brown, so soon as he had received his share, went out, like Judas, and for a similar purpose.

The reader may remember the two trunks in which the silks stolen from Inglis & Horner’s shop were packed with a view to transmission to John Tasker at Chesterfield. One of these had been despatched some time before by the Berwick carrier, the other had been forwarded that week by the Newcastle waggoner, and Smith’s wife was to leave for England on the Saturday in order to treat personally with the proprietor of the “Bird in Hand,” who was probably a difficult customer to deal with. Smith and Ainslie therefore proceeded to the New Town, where, at the inn kept by William Drysdale, they purchased a ticket for Mrs. Smith by the mail-coach to Newcastle on the following day. The five-pound note was tendered in payment, and they received the change, less the price of the ticket.

Let us now see how prudent Mr. Brown had been improving his time. Daily since the 25th of January there had appeared in each of the three Edinburgh newspapers advertisements offering £150 reward and a free pardon to whoever should disclose the robbers of Inglis & Horner’s shop. The excitement occasioned by that crime had been revived and increased tenfold by the discovery of the attack upon the Excise Office, which was made by ten o’clock on the night of its occurrence, and the vigilance of the authorities was proportionally augmented.

Brown stood in a more ticklish situation towards the outraged majesty of the law than any of his companions, for over him hung the sentence of transportation, which he had hitherto successfully evaded; and it would go hard with him if he fell into the hands of justice in connection with any of his later villainies, which might happen at any moment. He was, moreover, profoundly disgusted with the manner in which the Excise business had miscarried through no fault of his own, and would not be sorry to steal a march on his cowardly associates. He was also cunning enough to foresee that, if he turned informer, he would not only earn a handsome reward, but enjoy immunity for his past performances, as it would be necessary for the public prosecutor to obtain a pardon for his old offence also, before his evidence could be made available against his fellow-criminals.

Having carefully considered his position, therefore, and immediately after securing his dividend at Smith’s, Brown proceeded to William Middleton, of the Sheriff-Clerk’s Office, and informed him that he had certain discoveries to make concerning the robberies recently committed in the city. Late as it then was—eleven o’clock—Middleton at once took Brown to the Procurator-Fiscal, to whom he told the whole story, suppressing, however, in the meantime, all mention of Deacon Brodie’s name in connection with the crimes. His object in taking this course was doubtless to secure a hold upon the Deacon which would enable him, at his leisure, to blackmail that respectable gentleman with impunity. At his own request the Procurator-Fiscal and Middleton went with him that same night to Salisbury Crags, where Brown pointed out a number of false keys underneath a stone, hidden there by Smith after the affair at the Excise Office, of which the Fiscal took possession.

The next morning, Saturday, 8th March, Brown, accompanied by Middleton, left for Chesterfield in pursuit of Inglis & Horner’s goods by the very coach in which Mrs. Smith was to have performed the same journey. How they fared upon their errand is not recorded, but it would have been interesting to know what happened when John Tasker’s unexpected guests dropped in at the “Bird in Hand.”

The same day Ainslie, Smith, and his wife, and servant-maid were apprehended; and, having been examined before the Sheriff, were committed to the Tolbooth, the two women being subsequently set at liberty.

That Saturday evening the rumour of the prisoners’ arrest spread like wildfire through the city, and on Deacon Brodie, confident in his fool’s paradise, the intelligence must have fallen like a thunderbolt. Apart from his temporary loss of nerve at the Excise Office, he was undoubtedly a man of courage and resource, and the step he now determined to take might well have daunted a less intrepid character. This was to visit the Tolbooth in person and obtain speech with Smith and Ainslie, so as to induce them, if it were not too late, to hold their tongues. To do this, knowing nothing of where he stood or how much had come out, was to put his head into the lion’s mouth; but he saw that, at all costs, he must ascertain what had happened. Accordingly, having taken his cane and cocked hat, the Deacon, with that “particular air” which characterised his walk, sallied forth upon his desperate errand. The Tolbooth was but a few paces from his own door, and he was familiar with the jail, both as a Town Councillor and in the ordinary course of his employment. Arrived there, he congratulated the officials on their capture, and expressed his curiosity to see the redoubtable burglars with whose deeds all Edinburgh was then ringing, but was informed that no one was allowed access to them. He was therefore compelled to return home no wiser than he went, where, it is probable, the owner of the house in Brodie’s Close passed a sleepless and remorseful night.

Next morning, realising that the game was up, and that he must prepare for the worst—for he might now be arrested at any moment—Deacon Brodie sent for his foreman, Robert Smith, at eight o’clock, told him that he was about to leave town for a day or two on business, and gave him a message about a waistcoat and a pair of breeches he required for the journey. He then casually asked “if there were any news about the people who had broke into the Excise.” The foreman answered that Smith was in custody, and that Brown had been sent to England; and, knowing his master’s intimacy with these men, added that he hoped he (Brodie) was not concerned with them, to which the other made no reply.

If he was to fly the country it was essential that the Deacon should be in touch with his relations in Edinburgh, upon whose assistance he would principally have to rely. He therefore promptly called upon his cousin—whose name was considerately withheld in the subsequent proceedings—and explained the situation. This gentleman’s feelings, as he listened to the disclosures of his respectable relative, may readily be imagined. But the honour of the family was at stake, and he seems to have done everything he could to further the Deacon’s plans. The necessary arrangements made, early in the forenoon of Sunday, 9th March, while the good folks of Edinburgh were still in church, Deacon Brodie burnt his boats and stole secretly out of the city.

Had the Deacon’s confidence in the loyalty of his late companions been stronger, it is possible he might even yet have weathered the storm, for neither Smith nor Ainslie in the declarations emitted by them on the Saturday had admitted their guilt or made any reference to his connection with them. So far, therefore, the statements of Brown were uncorroborated; and if, in modern parlance, Brodie had decided “to face the music” and remain in Edinburgh, his fortunes might have taken a different turn.

In the course of Smith’s first examination before the Sheriff a curious incident occurred. He was confronted with the ploughman, John Kinnear, whose coulter had been stolen by Ainslie and Brown as before narrated, in order to try if that person could identify him. Kinnear, never having seen him before, failed to do so. At this moment, however, Smith’s dog “Rodney,” having followed his master to the Sheriff-Clerk’s Office, came into the room, and the ploughman at once recognised it as the black dog which he had seen with the men in the field at Duddingston. The animal ran up to Smith and fawned upon him, thus, in spite of his denial, establishing the fact of his ownership. “Rodney” figures in Kay’s sketch of the first meeting of Brodie and Smith.

On Monday, 10th March, Smith, learning that the Deacon had decamped, and no doubt hoping to secure more favourable terms for himself, sent for the Sheriff and informed him “that he wished to have an opportunity of making a clean breast and telling the truth.” He thereupon emitted his second declaration, laying bare the whole operations of the gang, and implicating Brodie to the fullest extent, his admissions being afterwards confirmed by Ainslie.

The following paragraph appeared next day in the Edinburgh Evening Courant:—“The depredations that have been committed by housebreakers in and about this city for this some time past have been no less alarming than the art with which they have been executed, and the concealment that has attended them has been surprising. From a discovery, however, just made, there is reason to hope that a stop will soon be put to such acts of atrocious villainy. With what amazement must it strike every friend to virtue and honesty to find that a person is charged with a crime of the above nature who very lately held a distinguished rank among his fellow-citizens? With what pity and compunction must we view the unfortunate victim who falls a sacrifice to justice for having violated the laws of his country, to which violation he was perhaps impelled by necessity, when rank, ease, and opulence are forfeited in endeavouring to gratify the most sordid avarice? For to what other cause than avarice can we impute the late robbery committed upon the Excise Office, when the situation of the supposed perpetrator is considered? No excuse from necessity can be pled for a man in the enjoyment of thousands, who will run the risk of life, honour, and reputation in order to attain the unlawful possession of what could in a very trifling degree add to his supposed happiness.—See the advertisement from the Sheriff-Clerk’s Office.”

The advertisement to which this article refers—a copy of which will be found in the Appendix—was the offer by the Procurator-Fiscal of a reward of two hundred pounds for the apprehension of “William Brodie, a considerable house carpenter, and burgess of the city of Edinburgh,” together with the minute and somewhat unflattering description of that gentleman’s personal appearance, to which we have already alluded. So the murder was out at last, and the ex-Town Councillor became a fugitive from justice with a price upon his head.

In consequence of the revelations of Smith, the officers of justice proceeded on Monday, 10th March, to search the house in Brodie’s Close. There Smith, who accompanied them, unearthed the Deacon’s pistols, buried in his woodyard. His dark lantern, several pick-locks, and a parcel of false keys were also found—the first “in a pen where game-cocks had been

Deacon Brodie’s Dark Lanthorn and False Keys. (From the originals in the Museum of The Society of Antiquaries of Scotland.)

kept”—together with “a black case, with a lid to it, the case full of potty,” with which it had been the Deacon’s amiable habit to take impressions of his friends’ door keys, and of which Smith remarked that he “approved of Brodie keeping the potty in a case, as the lid prevented an impression of a key, when taken, from being defaced.” On a subsequent occasion, Smith conducted the sheriff-officers to the foot of Warriston’s Close, where the iron crow—“Little Samuel”—the “toupee tongs,” and the false key for the Excise Office door were discovered hidden “in an old dyke.” The Deacon’s dark lantern and twenty-five false keys were, on 13th December, 1841, presented by the then Clerk of Justiciary to the Society of Antiquaries of Scotland, in whose museum they still remain.

On Tuesday, 11th March, George Williamson, King’s Messenger for Scotland, was deputed to search for the missing Deacon. He tried several of Brodie’s haunts in Edinburgh and Leith—even examining the enclosed tombs in Greyfriars Churchyard, which had more than once sheltered living offenders against the law—but without success. Prosecuting his inquiries along the London Road, Williamson first got scent of his quarry at Dunbar, which the fugitive had left at four o’clock on the Sunday afternoon in a post-chaise, and afterwards traced him to Newcastle, where he had taken the “Flying Mercury” light coach for York and London. From the coachman of that vehicle Williamson learned that Deacon Brodie had left the coach at the foot of Old Street, Moorfields, instead of proceeding to the “Bull and Mouth,” where the coach stopped, and there all trace of him was lost. His pursuer repaired to the billiard tables, hazard tables, cock-pits, tennis courts, and other likely places, without hearing anything of him, and pushed his inquiries as far as Margate, Deal, and Dover, with the like result. Finally, after eighteen days’ fruitless search, the King’s Messenger was compelled to return to Edinburgh and confess himself at fault.

We must now, in our turn, set forth in search of Mr. Brodie; and as to his doings after leaving Edinburgh we have the evidence of his own letter to Michael Henderson. He writes—“Were I to write you all that has happened to me, and the hair-breadth escapes I made from a well-scented pack of bloodhounds, it would make a small volume. I arrived in London on Wednesday, 12th March, where I remained snug and safe in the house of an old female friend until Sunday, 23rd March (whose care for me I shall never forget, and only wish I may ever have it in my power to reward her sufficiently), within five hundred yards of Bow Street. I did not keep the house all this time, but so altered, excepting the scar under my eye, I think you could not have rapt [swore] to me. I saw Mr. Williamson twice; but although countrymen commonly shake hands when they meet from home, yet I did not choose to make so free with him notwithstanding he brought a letter to me. He is a clever man, and I give him credit for his conduct. My female gave me great uneasiness by introducing a flash man to me, but she assured me he was a true man, and he proved himself so, notwithstanding the great reward, and was useful to me. I saw my picture [his description in the newspapers] six hours before, exhibited to public view, and my intelligence of what was doing at Bow Street Office was as good as ever I had in Edinburgh. I make no doubt but that designing villain Brown is now in high favour with Mr. Cockburn [the Sheriff], for I can see some strokes of his pencil in my portrait. May God forgive him for all his crimes and falsehoods.” It is evident that the impartial terms of this description were unpalatable to its subject.

The scar to which the Deacon here alludes was a souvenir of his membership of the club in the Fleshmarket Close, and the occasion of his receiving it is thus referred to in the answers of Hamilton, the master sweep, in the process before mentioned—“Mr. Brodie, in all his innocent amusements, never met with any person who, after having been fleeced of money to the amount of a hundred pounds, and detected of the vile and dishonest methods by which it had been abstracted from him, received, as a return for his moral rectitude, a very handsome incision on the eye—never he, indeed! He never was in such company, nor ever met with such an accident—not he!” This scar may be observed in the portraits of the Deacon by Kay.

Deacon Brodie had brought with him to London an introduction from his cousin to Mr. William Walker, attorney in the Adelphi, who busied himself in the fugitive’s affairs, lent him twelve guineas, and arranged to have him shipped safely off to the Continent so soon as the coast was sufficiently clear.

On Sunday, 23rd March, that “constant trader,” the sloop “Endeavour,” of Carron, John Dent, master, bound for the port of Leith, lay at her anchor at Blackwall. About twelve o’clock that night the captain, who had gone ashore, came aboard with the owners, Messrs. Hamilton and Pinkerton, and an elderly gentleman, apparently in feeble health. After a short conversation the owners left the ship; the passenger, who had been “allotted a bed in the state-room near the fire, as he was sick,” withdrew to the privacy of his cabin; and the “Endeavour” began her voyage. Off Tilbury Point, however, she went aground, and did not clear the Thames for a fortnight. No one seems to have thought this misadventure at all remarkable, and such incidents were doubtless common enough in those spacious days, when time, generally speaking, was no object.

The only other passengers on board were John Geddes, a tobacconist in Mid-Calder, and his wife, who were returning to Leith after a visit to the metropolis. The leisurely methods of the “Endeavour” afforded ample opportunity for cultivating the acquaintance of their fellow-passenger, whose name they found was Mr. John Dixon. They passed the time agreeably together, and Mr. Dixon on one occasion entertained his fellow-voyagers to dinner at a neighbouring village, though for the most part, while the vessel was aground, he remained on board.

At length, having been successfully refloated, the “Endeavour” resumed her interrupted voyage. No sooner, however, were they well out at sea than Mr. John Dixon produced and handed to Captain Dent sealed orders from the owners, wherein he was instructed to make sail for Ostend, where Mr. Dixon was to be landed, before proceeding to Leith, and the vessel was accordingly headed for the coast of Flanders. Owing to thick weather and cross winds, she failed to make that port, and finally put in to Flushing. Even this fresh delay appears in no way to have disturbed the equanimity of the easy-going Geddeses; and, having arrived on the 8th of April at their unlooked-for destination, they improved the occasion by making some purchases of contraband goods as a memento of their visit. Mr. John Dixon, meanwhile, before leaving the ship, wrote three letters—which he entrusted to the care of Geddes for delivery on his arrival in Edinburgh—directed respectively to Michael Henderson, stabler in the Grassmarket; Mrs. Anne Grant, Cant’s Close; and Mr. Matthew Sheriff, upholsterer in Edinburgh. Having taken a cordial farewell of each other, Mr. Dixon and Geddes parted company, the former—in whom the astute reader has ere now discerned the perfidious Deacon—setting out for Ostend in a skiff, and the latter resuming his protracted voyage.

When the “Endeavour” eventually arrived at Leith, where her non-appearance had caused considerable anxiety, Geddes, on perusing the newspapers, saw the Deacon’s description; but, though satisfied that the letters he carried were written by the notorious William Brodie, for three weeks after making the discovery he did nothing further in the matter. Perhaps a dilatory habit had been induced by his late experiences, or his conscience may have required some persuasion. Having at last decided to open the letters, he showed them to various persons, and subsequently delivered them over to the Sheriff. In taking this course, Geddes was probably actuated less by a sense of duty to his country than by a desire to secure the reward. If so, it is satisfactory to find that he did not receive it. The authorities had now, through the Deacon’s singular imprudence, obtained the necessary clue to his whereabouts, and no time was lost in following it up.

What were the contents of the letter to Anne Grant we have now no means of knowing, for that document was not produced at the trial, but the other two letters will be found at length in the following report. In all the contemporary accounts of the trial the names of persons referred to by Deacon Brodie in his letters were, for obvious reasons, omitted. These are now printed in full for the first time from the originals in the Justiciary Office, Edinburgh. In that addressed to his brother-in-law, Matthew Sheriff, dated 8th April, the Deacon writes—“My stock is seven guineas; but by I reach Ostend will be reduced to less than six. My wardrobe is all on my back, excepting two check shirts and two white ones; one of them an old rag I had from my cousin Milton, with an old hat (which I left behind). My coat, an old blue one, out at arms and elbows, I also had from him, with an old striped waistcoat and a pair of good boots. Perhaps my cousin judged right that old things were best for my purpose. However, no reflections; he is my cousin and a good prudent lad, and showed great anxiety for my safety; rather too anxious, for he would not let me take my black coat with me. I could not extract one guinea from him, although he owes me twenty-four pounds for three years past. He cannot help his natural temper.” Evidently the spruce and dapper gentleman keenly felt the sartorial straits to which his cousin’s parsimony had reduced him. He requests that wearing apparel, tools, and certain articles connected with his trade be forwarded to him at an address in New York; desires that his remittances may be as liberal as possible—“for without money I can make but a poor shift”; and adds in a postscript, “Let my name and destination be a profound secret, for fear of bad consequences.”

To Michael Henderson he writes, on 10th April, after the passages already quoted, asking what is likely to become of “poor Ainslie, Smith, and his wife; I hope that neither you nor any of your connections has been innocently involved by these unfortunate men. Write me how the Main went; how you came on in it; if my black cock fought and gained, &c., &c.”—from which we are pleased to note that the Deacon, amid the ruin of his fortunes, retained his kindly disposition and sporting instincts. One hopes that the black cock came off victorious. It is interesting to find in the Edinburgh Evening Courant of 5th April, 1788, the following advertisement of the “Main” to which the Deacon refers:—

COCK FIGHTING.

The LONG MAIN betwixt William Hamilton, Esq., of Wishaw, and Captain Cheap of Rossie, begins at twelve o’clock on Monday, the 7th curt., and will continue at the same hour every day during the week, at HENDERSON’S PIT, Grassmarket.

SUNLEY and SMALL, Feeders and Handlers.

Brodie concludes his letter thus—“I am very uneasy on account of Mrs. Grant and my three children by her; they will miss me more than any other in Scotland. May God in His infinite goodness stir up some friendly aid for their support, for it is not in my power at present to give them the smallest assistance. Yet I think they will not absolutely starve in a Christian land, where their father once had friends, and who was always liberal to the distressed. My eldest daughter, Cecil, should be put apprentice to the milliner or mantuamaking business; but I wish she could learn a little writing and arithmetic first. I wish to God some of my friends would take some charge of Cecil; she is a fine, sensible girl, considering the little opportunity she has had for improvement.” Here we have a glimpse of another and better element in the complex character of this extraordinary man.

Information of the circumstances disclosed in these letters was instantly despatched to the authorities in London, and the Secretary of State, Lord Carmarthen, at once communicated with Sir John Potter, the British Consul at Ostend, in consequence of which Deacon Brodie was traced to Flushing and Middleburgh, and from thence to Amsterdam. Application was immediately made to Sir James Harris, British Consul there, with the result that the Deacon was apprehended in an alehouse, through the instrumentality of John Daly, an Irishman, on the eve of embarking for America.

The circumstances of his capture were as follows:—Daly, armed with an exact description of the fugitive, ascertained his whereabouts in Amsterdam from two Jews “who attend the passengers that arrive in the treck schoots.” On reaching the alehouse where Brodie was lodged, the landlord told him that the gentleman he inquired for was above. Daly proceeded to the first floor, knocked once or twice at the door, and, receiving no answer, entered the room. It was seemingly empty, but a search of the apartment disclosed the unlucky tenant hiding in a cupboard. “How do you do, Captain John Dixon alias William Brodie?” said Daly; “come along with me”; and the Deacon, realising that resistance was useless, surrendered at discretion, and was duly lodged in the Stadthouse. It is disappointing to find our hero yielding thus tamely to his Irish captor, but it must be remembered that, physically, the Deacon was a small man, and, moreover, at this time was not in good health. Having seen his captive safely disposed of, John Daly left for London to claim and receive the reward.

On 1st July, Mr. Groves, Messenger-at-arms, was despatched from London to bring the prisoner back to England. The journal kept by Groves on this expedition—a copy of which is contained in the Appendix—gives an interesting account of the proceedings before the magistrates at Amsterdam in connection with the extradition of the Deacon. There was some difficulty in establishing the prisoner’s identity, the evidence of two witnesses on oath to that effect being required by the law of Holland. One witness, who had seen Brodie in Edinburgh, stated that he had no doubt he was the same man, “but would not swear he had no doubt”—a nice distinction. The Deacon would admit nothing. Ultimately the magistrates declared themselves satisfied, and the prisoner was delivered up to Mr. Groves, who conducted his charge in triumph to Helvoetsluys.

The journey was accomplished, with all the pomp and circumstance befitting so important an occasion, in “two carriages, and four guides, with four horses in each carriage,” and the poor Deacon “properly secured” inside. Next day they sailed for Harwich, the prisoner being “watched two hours alternately on board by the ship’s crew, his hands and arms confined, and his meat cut up for him, &c.” Mr. John Dixon must have recalled with regret the comforts of his earlier voyage.

On 11th July the pair arrived in London, where Deacon Brodie was examined at Bow Street before Sir Sampson Wright, chief magistrate, and Mr. Longlands, solicitor to the Treasury, in whose presence he admitted his identity. He was accordingly committed to Tothilfields Bridewell, pending his removal to Scotland.

At Bow Street two trunks belonging to Brodie were opened, and in one of them was found a bundle of papers. Among these were two draft letters or unsigned scrolls, afterwards produced at the trial, and printed in the following report, which throw much interesting light upon the writer’s position and prospects. They were evidently intended for friends in Edinburgh, and written subsequent to the letters which he had intrusted to the treacherous Geddes. He writes—“I hope to embark in the first ship for America, to whatever port she is bound, which will probably be Charlestown, South Carolina, as there is a ship lying-to for that port. I will settle there, if I think I can do better than at Philadelphia or New York.” He asks his correspondent to inform him “what has been done with the two unfortunate men Smith and Ainslie, and the greater villain, John Brown alias Humphry Moore? Was John Murray alias Jack Tasker brought from England? I shall ever repent keeping such company; and whatever they may allege, I had no direct concern in any of their depredations, excepting the last fatal one, by which I lost ten pounds in cash. But I doubt not all will be laid to my charge, and some that I never heard of.” The last quoted passage told strongly against him at the trial, and it is difficult to see why he had preserved such compromising documents.

In the same trunk was found an account or state of Brodie’s affairs prepared by himself on 24th March, the day after he embarked in the “Endeavour.” This document was founded on in the indictment and produced at the trial; but Creech tells us, in the introduction to his report, that, “although laid on the table for the inspection of the jury, yet, being of a private nature and not necessarily connected with the crime charged, the jury had too much delicacy to look into; and it is hoped the same motive will be a sufficient apology for not laying it before the public.” It was, accordingly, not published in any of the contemporary accounts of the trial, and is now for the first time printed in the following report from the original MS. in the Justiciary Office. From this most interesting document we are able to learn the financial position of Deacon Brodie at the time of his flight, and it is surprising to find that he brings out a balance in his favour of upwards of £1800.

Our old friend, George Williamson, the King’s Messenger, was sent from Edinburgh to conduct the reluctant Deacon back to his native city. On the journey north, Williamson tells us, “Mr. Brodie was in good spirits, and told many things that had happened to him in Holland.” Among other items of interest, he mentioned that, while in Amsterdam, he had formed the acquaintance of a gentleman living in that city on the proceeds of a successful forgery committed upon the Bank of Scotland. Forgery was a branch of the learned professions which the Deacon had hitherto neglected, and he was receiving instruction from this obliging practitioner, when his studies were abruptly terminated by Mr. Daly’s call. “Brodie said he was a very ingenious fellow, and that, had

George Williamson, King’s Messenger for Scotland.
(After Kay.)

it not been for his own apprehension, he would have been master of the process in a week.” Before arriving in Edinburgh the Deacon, ever careful of his personal appearance, was anxious to obtain a shave—a luxury to which, in the turmoil of his affairs, the dapper gentleman had been for some days a stranger. Williamson, afraid to trust a razor to one so circumstanced, himself essayed the task. His intention must have been superior to his execution, for, when the operation was over, the patient remarked, “George, if you’re no better at your own business than at shaving, a person may employ you once, but I’ll be d——d if ever he does so again!”

On 17th July the Caledonian Mercury was able to announce to its readers—“This morning early Mr. Brodie arrived from London. He was immediately carried to the house of Mr. Sheriff Cockburn, at the back of the Meadows, or Hope Park, for examination. Mr. George Williamson, Messenger, and Mr. Groves, one of Sir Sampson Wright’s clerks, accompanied Mr. Brodie in a post-chaise from Tothilfields Bridewell. He was this forenoon committed to the Tolbooth. They were only fifty-four hours on the road.”

While their leader was enlarging his experience of life on the Continent, Smith and Ainslie had varied the monotony of existence in the Tolbooth by a vigorous attempt to regain their liberty. We read in the Scots Magazine for May, 1788, that “in the night between the 4th and 5th of May, George Smith, prisoner in the Tolbooth of Edinburgh, accused of shop-breaking and theft, had the ingenuity to make his way from his own apartment to that of Andrew Ainslie, a supposed accomplice in the same crimes, though Ainslie’s room was situated two storeys above that occupied by Smith. This, it would appear, was achieved by his converting the iron handle of the jack or bucket of the necessary into a pick-lock, and one of the iron hoops round the bucket into a saw. By a dextrous use of these instruments Smith took off one door from the hinges, and opened the other which led to Ainslie’s apartment. They then both set to work, and cut a hole through the ceiling of Ainslie’s room, as well as through the roof of the prison itself. Luckily, however, the falling of the slates and lime into the street, between three and four o’clock in the morning, attracted the attention of the sentinel upon duty, who immediately gave the alarm, and the inner keeper had them soon after properly secured. In order to let themselves down from the top of the prison they had prepared 16 fathoms of rope, which they had artfully manufactured out of the sheets of their beds.”

This daring and ingenious bid for freedom deserved a better fate, and it is a testimony to Smith’s skill that he was able to achieve so much by means so grotesquely inadequate. Little wonder that, with liberty and his tools, he was a competent and successful practitioner.

Mr. Brown, that unamiable informer, was, strangely enough, also at this time an inmate of the Tolbooth. The Edinburgh Magazine for the same month gives an account of his arrest, along with George White, tanner, and William Peacock, flesher, charged with being concerned in the murder of James M‘Arthur, change-keeper in Halkerston’s Wynd, during a quarrel in the latter’s house—“alleged not to be one of very good repute”—in which M‘Arthur was fatally assaulted with a bottle. The consequences of this regrettable incident were, so far as Brown was concerned, averted by the pardon aftermentioned. White, however, was brought to trial and found guilty of culpable homicide.

The law officers of the Crown were now busily preparing their case against Brodie, Smith, and Ainslie; and as, apart from the testimony to be borne by Brown, there was no direct evidence of the commission of the crime available, it was decided to accept Ainslie as King’s evidence, and proceed only against Brodie and Smith upon the charge of breaking into and robbing the General Excise Office for Scotland. Accordingly, on 19th July, an indictment was served upon them, the trial being fixed to take place on 4th August. Owing, however, to some additional evidence having come to the knowledge of the Public Prosecutor, on 11th August, a new indictment had to be served, and the trial postponed until the 27th of that month.

Meanwhile, on 28th July, His Majesty’s most gracious pardon had been obtained for John Brown alias Humphry Moore, which, in law, rendered that miscreant, as a witness, “habile and testable,” notwithstanding the baseness of his character and his infamous record.

Deacon Brodie had, since his apprehension, been kept in close confinement in the Tolbooth. He was carefully watched day and night by two soldiers of the City Guard, and was not allowed either knife or fork with which to eat his victuals in case of dangerous consequences. On account of this inconvenient restriction, the Deacon, shortly before his trial, addressed the following remonstrance to a brother member of the Town Council and one of the magistrates of the city:—

“Edinburgh, 17th August, 1788.

“Dear Sir,

“The nails of my toes and fingers are not quite so long as Nebuchadnezzar’s are said to have been, although long enough for a Mandarine, and much longer than I find convenient. I have tried several experiments to remove this evil without effect, which no doubt you’ll think says little for your Ward’s ingenuity; and I have the mortification to perceive the evil daily increasing.

“Dear Sir, as I intend seeing company abroad in a few days, I beg as soon as convenient you’ll take this matter under consideration, and only, if necessary, consult my Guardian and Tutor sine qua non; and I doubt not but you’ll devise some safe and easy method of operation that may give me a temporary relief. Perhaps the faculty may prescribe a more radical cure.

“Dear Sir, if not disagreeable to you, I’ll be happy to see you. You’ll be sure to find me at home, and all hours are equally convenient.

“Believe me to be, with great esteem,
“Your most affectionate Ward, and very humble servant,
“Will. Brodie.

“To Don. Smith Esq.
“Edinburgh.”

This curious instance of a sense of humour retained in the most unfavourable circumstances throws an interesting sidelight on the Deacon’s character.

On the Friday before the trial Smith, who appears to have abandoned all hope of an acquittal, wrote a letter to the Board of Excise, saying “that he was not to give them any trouble, for he would plead Guilty.” He also prepared a written statement, which it was his intention to have read to the Court, but he was dissuaded from this course by his agent, Mr. Morrison, and finally decided to take his chance and plead not guilty. In this remarkable document—a copy of which is contained in the Appendix—Smith gives, inter alia, the following list of “such robberies as my accomplices and myself had determined to commit, had we not been timeously prevented:—

• “1. On Dalgleish & Dickie, watchmakers.
• 2. On White & Mitchell, lottery-office keepers.
• 3. On a rich baker near Brodie’s Close—the name forgot.
• 4. The Council Chamber, for the mace.
• 5. The Chamberlain’s Office, for money.
• 6. Forrester & Co.’s, jewellers.
• 7. Gilchrist & Co.’s, linen drapers.

Besides these, and as depredations of greater magnitude—

• 8. The Bank of Scotland (or Old Bank) was to have been broke into.
• 9. The Stirling stage coach, carrying a thousand pounds to pay the Carron workmen, was to have been stopped and robbed.
• 10. Mr. Latimer, Collector of Excise for the Dalkeith district, reported to have generally from one to two thousand pounds, was to have been robbed.”

This comprehensive catalogue of the gang’s prospective arrangements was, doubtless, perused with much interest by the intended victims, and the rich baker must have congratulated himself on escaping the attention of his respectable neighbour. The only one of these contemplated robberies, towards the accomplishment of which any steps would seem to have been taken, was that of the office of the City Chamberlain. We read in Smith’s third declaration that “a false key was made by Brodie for the purpose of opening the door of the Chamberlain’s cash-room of the city of Edinburgh; the declarant and Brodie had frequently been at the door of the Chamberlain’s Office, in order to take the impression of the keyhole; that Brodie showed the declarant the said key after it was made; and Brodie told the declarant that it did not answer”—which was fortunate for the City Chamberlain. But the laudable intention which Smith, since his apprehension, had evinced “of making a clean breast” was not destined to gain for him any temporal advantage.

George Smith at the Bar.
(After Kay.)

The public interest in the approaching trial was intense, both on account of the magnitude of the late robberies and the prominent position which Deacon Brodie had so long occupied in Edinburgh. His escape and capture had further whetted the popular excitement, and at an early hour on the morning of Wednesday, 27th August, 1788, every part of the Justiciary Court was crowded to its utmost capacity. A detachment of the 7th Regiment of Foot from the Castle lined the Parliament Square for the purpose of securing an easy access for the members of the Court and jurymen, and to prevent any confusion that might arise from the great crowd assembled at the doors.

At a quarter to nine o’clock the prisoners were brought from the Tolbooth into Court. “They were conveyed, upon their request, in chairs, but each having a sentinel of the City Guard on the right and left, with naked bayonets, and a sergeant’s guard behind, with muskets and fixed bayonets.” A contemporary account informs us that “Mr. Brodie was genteelly dressed in a new dark-blue coat, a fashionable fancy waistcoat, black satin breeches, and white silk stockings, a cocked hat, and had his hair fully dressed and powdered.” In contrast to the dashing appearance cut by his companion, Smith, we are told, was “but poorly clothed, having had no money since his confinement, which had already lasted six months.” The Deacon affected an easy and confident demeanour; Smith, on the contrary, looked timid and dejected.

At nine o’clock the five judges, preceded by a macer bearing the Justiciary mace, and headed by the formidable Braxfield, took their seats, “and, the Court being fenced and the action called in the usual manner,” the trial then commenced. As a verbatim report of the proceedings is contained in the following pages, and some account of the judges and counsel engaged therein will be found in the Appendix, it is only necessary here briefly to comment upon the more salient incidents which occurred in the course of the trial.

It is worthy of note that among those who served upon the jury were William Creech, the celebrated Edinburgh publisher and man of letters, and also Sir William Fettes, afterwards Lord Provost of Edinburgh, and James Donaldson, the well-known printer and pioneer of cheap literature, to whose munificence the city is indebted for the famous college and palatial hospital which bear the names of their respective founders.

The interest of the Deacon’s friends had secured for him the services of Henry Erskine, then Dean of Faculty, and the chief ornament of the Scots bar, with whom were Alexander Wight, and Charles Hay, afterwards the jovial Lord Newton; while Smith’s case was entrusted to the celebrated John Clerk of Eldin, at that time an inconsiderable junior, and Robert Hamilton, in later years the colleague of Sir Walter Scott. The Lord Advocate (Ilay Campbell) and the Solicitor-General (Robert Dundas), assisted by two Advocates-depute, conducted the prosecution.

Both prisoners pleaded not guilty; no objections were taken to the relevancy of the indictment; and it was stated for Brodie that he intended to prove an alibi. An objection taken by the Dean of Faculty to the specification of certain of the articles libelled on having been repelled, John Clerk attempted to make some observations on behalf of Smith, which resulted in the first of those passages of arms between him and Braxfield, whereby the dignified course of the proceedings was frequently enlivened. Clerk had then been at the bar less than three years; this was the most important case in which he had yet been employed; and it is said to have been his first appearance in the Justiciary Court. The remarkable and characteristic energy with which on that occasion he conducted his client’s defence attracted the attention of the profession, and laid the foundations of his subsequent reputation and practice.

An interesting point of law arose in connection with the calling of Smith’s wife as a witness for the prosecution against Brodie. Her proposed evidence was vigorously objected to by Clerk on account of the relation in which she stood to his client—both panels were included in one indictment, and it was impossible to criminate the one without the other. A sharp encounter with Braxfield ensued; but the Court admitted the witness. When Mrs. Smith entered the box, however, Alexander Wight, for Brodie, stated a fresh objection, viz., that the maiden name of the witness was wrongly given in the Crown list as “Mary Hubbart,” whereas her real name was “Hibbutt,” which, on her being requested by Braxfield to sign her name, turned out to be the fact. In view of this misnomer the objection was sustained and the witness dismissed.

Another legal point of interest arose when it was proposed to identify the five-pound bank-note libelled on, the Dean of Faculty objecting that it was not a “bank-note,” as described in the indictment, having been issued by a private banking company in Glasgow. The Court sustained the objection, holding that nothing was to be deemed a bank-note but one issued from a bank established by Royal Charter.

The crucial question of the case, however, both for the prosecution and the defence, was whether or not Ainslie and Brown should be admitted as witnesses to prove the panels’ guilt. So far the proof of their complicity in the robbery was mainly circumstantial. Although Smith, in his second declaration, had confessed his accession to the crime, yet, having pleaded not guilty, this was not in itself sufficient to convict him; while as regards the Deacon, apart from the statements of Smith, his guilt was only to be inferred from his flight and certain passages in his letters. It was, therefore, of vital importance to the prisoners that the direct evidence of their accomplices should be excluded, while the Crown case equally depended for a verdict upon its admission.

To the determining of this question each side accordingly addressed its strongest efforts, and the debate which followed will be found both lively and instructive. The authority of Sir George Mackenzie was quoted against the admission of the witnesses; but that venerable jurist was somewhat severely handled. The principal objection to Ainslie, as stated by the Dean of Faculty, was that he had been himself accused of the crime he was now to fasten upon another, and that the Sheriff of Edinburgh had offered him his life if he would criminate Brodie, of whose complicity he had hitherto said nothing. In the case of Brown, the battle was joined upon the precise effect of the pardon which had been obtained for that interesting criminal, and to what extent the pristine purity of his character was thereby restored. The Court, however, repelled the objections, and admitted both witnesses; and the evidence which they gave finally disposed of all chance of the panels’ acquittal.

At the conclusion of Brown’s evidence the Lord Justice-Clerk addressed that truculent scoundrel as follows:—“John Brown, you appear to be a clever fellow, and I hope you will now abandon your dissipated courses, and betake yourself to some honest employment.” To which Brown suitably replied, “My Lord, be assured my future life shall make amends for my past conduct.” He then left the box, and so passes out of the story, of which he was undoubtedly “the greater villain,” and surely never did witness less merit judicial commendation than John Brown alias Humphry Moore.

The Crown case closed with the reading of the prisoners’ declarations and the Deacon’s letters, such portions of the former as related to matters unconnected with the trial being withheld from the jury. For the defence no witnesses were called for Smith, and an attempt to prove an alibi made on behalf of Brodie was entirely unsuccessful, the principal witnesses to it being his brother-in-law, Matthew Sheriff, and his mistress, Jean Watt, both obviously friendly to the Deacon’s interests.

At one o’clock on the morning of Thursday, 28th August, the exculpatory proof was closed, and the Lord Advocate began his address to the jury. His Lordship’s speech, while an able and convincing statement of the Crown case, was marred by one or two passages which would now be considered to exceed the limits of legitimate advocacy. Such are the references to facts “which would have been likewise sworn to by Smith’s wife, if she had been allowed to be examined”; the assumption that the Deacon’s foreman, Robert Smith, was convinced of his master’s guilt; the use made of Ainslie’s declaration, which that witness was told had been destroyed, and which was not before the Court; and the passage in the peroration referring to the “consequences to the inhabitants of this populous city” of the Deacon’s acquittal.

At the conclusion of the evidence the Dean of Faculty and John Clerk had held a final consultation, when it was arranged that Clerk should speak first for Smith, and that Erskine should follow for Brodie, and strengthen or take up such points as he might think necessary. In order to put himself in fighting form, Clerk, we are told, drank a bottle of claret before commencing his address. This speech, the only extant example of his celebrated method of advocacy, was, in all the contemporary reports, reduced to a minimum for fear of offending the judges. Fortunately, however, a later writer, Peter Mackenzie, has preserved, in his “Reminiscences of Glasgow” (Glasgow, 1866), a full account of the suppressed passages, which he gives on the unquestionable authority of Æneas Morrison, the agent for Smith, who himself furnished the author with these particulars. They have accordingly been incorporated in the following report.

When Clerk, in the course of his address, came to deal with the evidence of Ainslie and Brown, a scene, almost incredible to us nowadays, occurred between the irrepressible young advocate and the overbearing judge. Clerk informed the jury that, in his opinion, these witnesses ought never to have been admitted, a statement which the bench naturally resented, and he went on to insist that, notwithstanding the ruling of the Court, the jury should discard their evidence entirely, as they (the jury) were to judge of the law as well as of the fact. In the course of the discussion which followed, the intervention of the Lord Advocate was met by a graceful allusion to His Majesty’s Tory Administration as “villains” likely to contaminate the Crown.

A heated altercation between Clerk and Braxfield ensued, and, finally, the latter bade him go on with his speech at his peril. On Clerk refusing to proceed unless allowed to do so in his own way, Braxfield invited the Dean of Faculty to commence his address for Brodie, which that gentleman declined to do. Thereupon the Lord Justice-Clerk was about to charge the jury himself, when Clerk, starting to his feet and shaking his fist at the bench, cried out, “Hang my client if ye daur, my Lord, without hearing me in his defence!” These amazing words, the like of which had seldom echoed in judicial ears, caused the utmost sensation in Court, and, after an awful pause, the judges left the bench to hold a consultation. But, on their return, instead of anything tremendous taking place, his Lordship civilly requested Clerk to continue his address, and the incident terminated.

Thus was the redoubtable Braxfield forced to yield to the persistence of the fiery young counsel. On reading the discussion as reported, one cannot but think that Clerk was clearly in the wrong, and that his contention as to the jury being judges both of the fact and of the law was, as Braxfield roundly put it, “talking nonsense.” Nor does it appear that the line which he saw fit to adopt could in any way benefit his unfortunate client, whose interests would have been better served by more temperate methods. Clerk, however, was thoroughly pleased with his performance, and subsequently observed that it was “the making of him” professionally.

It is said that Clerk’s indignant repudiation of the prosecutor’s argument that the King’s pardon made Brown an honest man reached the ears of Robert Burns, and led him afterwards to write the famous lines—

A prince can mak’ a belted knight,
A marquis, duke, an’ a’ that;
But an honest man’s aboon his might,
Gude faith, he mauna fa’ that!

At three o’clock in the morning the Dean of Faculty rose to address the jury on behalf of Deacon Brodie. In spite of the fact that he had been continuously engaged upon the case since nine o’clock the preceding morning, no signs of exhaustion appear in his eloquent and powerful speech. Every point telling in favour of the prisoner was given due prominence, and the utmost was made of the somewhat flimsy material of the alibi; the whole address forms a fine example of forensic oratory.

At half-past four o’clock the Lord Justice-Clerk—who is said never to have left the bench since the proceedings began—delivered his charge to the jury, which, one is glad to find, notwithstanding what had previously occurred, was a fair and impartial review of the evidence. His Lordship having concluded his charge at six o’clock on Thursday morning, the Court adjourned until one o’clock afternoon; the jury were inclosed; and the prisoners taken back to prison.

The Edinburgh Advertiser remarks—“Mr. Brodie’s behaviour during the whole trial was perfectly collected. He was respectful to the Court, and when anything ludicrous occurred in the evidence he smiled as if he had been an indifferent spectator.”

When the Court met again at one o’clock, the Chancellor of the jury handed in their written verdict, sealed with black wax, which unanimously found both panels guilty of the crime libelled, and the Lord Advocate formally moved for sentence.

A final effort was now made on behalf of the prisoners. Counsel for Brodie stated a plea in arrest of judgment, in respect that the verdict found the panels guilty “of breaking into the house in which the General Excise Office for Scotland was kept,” whereas it appeared from the evidence that there were, in fact, two separate and distinct houses occupied as the Excise Office. This objection was, after argument, repelled by the Court, and the prisoners were sentenced to death, their execution being appointed to take place on Wednesday, 1st October.

When the sentence was pronounced, we are told “Mr. Brodie discovered some inclination to address himself to the Court, but was restrained by his counsel,” and contented himself with bowing to the bench. The prisoners were then removed to the Tolbooth, escorted by the City Guard, amid a great concourse of spectators, and the proceedings terminated.

Æneas Morrison, the agent for Smith, adds the following particulars:—“The panels behaved in a manner different from each other, Smith appearing to be much dejected, especially at receiving his dreadful sentence, although in many instances he showed very great acuteness in his remarks upon the depositions of the witnesses and in the questions to them which he suggested. Mr. Brodie, on the other hand, affected coolness and determination in his behaviour. When the sentence of death was pronounced he put one hand in his breast and the other in his side and looked full around him. It is said that he accused his companion of pusillanimity, and even kicked him as they were leaving the Court. Thus ended a trial which had excited the public curiosity to an extraordinary degree, and in which their expectations were not disappointed. During the space of twenty-one hours—the time it lasted—circumstances continually followed each other to render it highly interesting, and more particularly to the gentlemen of the law, on account of the great variety and importance of the legal topics which were discussed and decided.”

The prisoners were lodged in the condemned cell of the Tolbooth, along with two men, James Falconer and Peter Bruce, then under sentence of death for breaking into and robbing the office of the Dundee Banking Company. They were each chained by one foot to an iron bar, but a contemporary account records that “Brodie’s chain is longer than the rest, as he can sit at a table and write by himself. They have behaved tolerable well, considering the small room they have on the goad, which goes across the room, very securely fixed from one end to the other in the wall, and hath four divisions or places on which the chains are fixed, with strong iron supporters fastened into the stone floor, and each has a mattress to lie on opposite to himself.”

A terrible change this, for the unfortunate Deacon, from the comfortable chambers of his house in Brodie’s Close and the social advantages which he had so long and undeservedly enjoyed. He seems, notwithstanding, to have kept up his spirits, and is said to have been as particular as ever in the matter of his dress. Having contrived to cut out the figure of a draughtboard on the stone floor of his dungeon, he amused himself by playing with any one who would join him, and in default of such, with his right hand against his left. The author of “Traditions of Edinburgh” states that this diagram remained in the room, where it was so strangely out of place, till the demolition of the Old Tolbooth in 1817. Many of his friends came to see him, for, until the time of his execution drew near, no restriction was placed upon their visits, and every effort was made by them to obtain a commutation of the death sentence to one of transportation for life.

In furtherance of this object Deacon Brodie, on 10th September, wrote letters to the Right Hon. Henry Dundas, afterwards Viscount Melville, and to the Duchess of Buccleuch, soliciting their influence in support of an application then being made to the Government on his behalf. Copies of these most interesting documents, which have never before been published, will be found in the Appendix—that addressed to the Duchess being also given in facsimile. This lady was Elizabeth, daughter of George, Duke of Montague, and wife of Henry, third Duke of Buccleuch, the friend of Sir Walter Scott, whose daughter-in-law, when Countess of Dalkeith, inspired “The Lay of the Last Minstrel.” It is noteworthy that, in spite of his position and presumed education, the Deacon’s spelling is more remarkable for originality than accuracy. His friends’ “aplication above,” however, proved unsuccessful, and the inevitable end had to be faced.

The Old Tolbooth of Edinburgh, showing the beam upon which criminals were executed.
(From a Drawing by D. Somerville.)

Deacon Brodie continued to bear up bravely, referring to his approaching exit as “a leap in the dark,” and is said to have only once broken down, when he was visited by his eldest daughter, Cecil, on the Friday before his execution. On the Sunday preceding his death, the other two prisoners, Falconer and Bruce, who were to have been executed on the same day, were granted a respite of six weeks. Smith observed that six weeks was but a short time; whereupon the Deacon exclaimed, “George, what would you and I give for six weeks longer? Six weeks would be an age to us!” On the Tuesday he was visited by a friend, when, we are told, “the conversation turning upon the female sex, he began singing with the greatest cheerfulness from the ‘Beggar’s Opera’ ‘ ’Tis woman that seduces all mankind,’ &c.”

The “Beggar’s Opera,” the well-known work of the poet and dramatist, John Gay, appears to have been a special favourite with the Deacon, for it will be remembered that he sang a stave from it on the night of the robbery of the Excise Office. The opera was frequently performed at the Old Theatre Royal, Edinburgh, at this period, and he had, no doubt, had many opportunities of hearing it. Commenting on this incident, the Edinburgh Advertiser remarks—“Brodie seemed to take the character of Captain Macheath as his model, and the day before his death was singing one of the songs from the ‘Beggar’s Opera.’ This is another proof of the dangerous tendency of that play, which ought to be prohibited from being performed on the British stage. It is inconceivable how many highwaymen and robbers this opera has given birth to.” The editor of the Advertiser was evidently less gifted with a sense of humour than the Deacon, and had never read Fergusson’s lines “To Sir John Fielding, on his attempt to suppress the ‘Beggar’s Opera.’ ”

On the night before the execution, Deacon Brodie complained of the noise made by the workmen in effecting the alterations on the gibbet necessitated by the reprieve of the other prisoners, Falconer and Bruce; and it is stated in a contemporary report of the trial, published by Robertson on 2nd October, 1788, the day after the execution, that Brodie then said “he planned the model of the new place of execution, he purchased the wood, and gave his assistance in finishing it—but little did he imagine at the time that he himself would make his exit on it.” The Edinburgh Advertiser of 3rd October, 1788, describing the execution, says—“It is not a little remarkable that Brodie was the planner, a few years since, of the new-invented gallows on which he suffered”; and Robert Chambers, in his “Minor Antiquities of Edinburgh,” (1833, p. 168), remarks—“As the Earl of Morton was the first man executed by the ‘Maiden,’ so was Brodie the first who proved the excellence of an improvement he had formerly made on the apparatus of the gibbet. This was the substitution of what is called the ‘drop’ for the ancient practice of the double ladder. He inspected the thing with a professional air, and seemed to view the result of his ingenuity with a smile of satisfaction.” William Chambers, however, in his “Book of Scotland” (1830, pp. 327-8), takes a different view, holding that the drop was first employed at Newgate in 1784, and had already been used in Edinburgh at an execution in 1785.

Popular tradition, with a fine sense of the requirements of poetic justice, has steadfastly held that Deacon Brodie was the first to test the efficacy of the drop which he himself invented, and was thus, in a double sense, the artificer of his own downfall. And although such a circumstance would be well in keeping with the Deacon’s singularly dramatic career, it must unfortunately be dismissed as a picturesque improvement on the literal truth.

A careful examination of the Council records discloses the following facts, now for the first time published:—On 18th August, 1784, the Town Council remitted to Convener Jameson (mason), Deacon Hill (wright), and Deacon Brodie to inspect the west wall of the Tolbooth and consider in what manner a door or passage could be made in order that criminals might be executed there, and to report. Up till that time all public executions had taken place in the Grassmarket at the foot of the West Bow; and it was now proposed that criminals should be executed upon a platform to be erected on the low building which projected from the west gable of the Tolbooth. The report of the committee on the subject does not appear on the record; but in September the new Council was elected for the ensuing year, and Deacon Brodie was not chosen a member of it.

On 24th November, 1784, “pursuant to a late remit to the Magistrates to consider as to fitting up a place adjoining to the Tolbooth of this city for the execution of criminals,” estimates by Convener Jameson and Deacon Hill (who were members of the new Council) were accepted for the mason and wright work respectively. On 11th April, 1785, estimates by the same two Councillors were accepted for rebuilding the shops affected by the proposed alterations, “exclusive of the wright work for the platform and the machinery for an execution, conform to a former estimate.” On the 13th of the same month, the Dean of Guild having inspected the work and reported favourably upon it, the magistrates passed an Act of Council appointing the west end of the Tolbooth to be the common place of execution in all time coming; and ordained Archibald Stewart, then under sentence of death for housebreaking, to be executed there in pursuance of his sentence. The execution was accordingly carried out on 20th April, 1785, but not, it would appear, upon the moveable platform or drop. On 7th September of that year, five months after Stewart’s death, the Council for the first time authorised Deacon Hill “to make a moveable platform for the execution of criminals in terms of his estimate”; and among certain accounts ordered to be paid by the City Chamberlain on 13th September, 1786, we find one due “To Thomas Hill for erecting a second platform, west end of the Tolbooth, twenty-one pounds, seven shillings and elevenpence halfpenny”—his account for the former work being also mentioned.

This was, without doubt, the drop upon which, two years later, Deacon Brodie was to suffer the penalty of the law. It is possible, and indeed, from the contemporary evidence already quoted, probable that he himself designed the model, adopting the improvement recently introduced in England. He may even have sent in an estimate for the work, but, as he was not that year a member of Council, Deacon Hill had the better chance of securing the contract, and certainly obtained it.

It was, therefore, on the platform above referred to that the execution of William Brodie and George Smith took place, at half-past two o’clock on the afternoon of Wednesday, 1st October, 1788, in presence of an immense crowd of spectators, great numbers having come from all parts of the country to witness the event. The Caledonian Mercury observes—“The crowd on this occasion was the greatest ever known; the whole space from the prison to the Castle Hill being filled with spectators, pressed together in one compact and immoveable column.” The proceedings were conducted with more than usual solemnity; the magistrates attended in their robes of office, “with white gloves and white staves”; ministers of divers denominations were present in their gowns and bands; and the City Guard formed a cordon round the place of execution. We read that “the great bell tolled during the ceremony, which had an awful and solemn effect.” This is said to have been the first occasion of the kind on which the bell of St. Giles’ Church was tolled. It is characteristic of the man that, on his last public appearance, we are informed, “Mr. Brodie appeared in a handsome suit of black clothes, and had his hair powdered and dressed with taste.” Twice, owing to some defect in the adjustment of the ropes, did the Deacon descend from the platform and enter into conversation with his friends; but, notwithstanding this dreadful delay, his fortitude remained unshaken, and he met his fate with a courage and equanimity worthy of a better cause:

Nothing in his life
Became him like the leaving it.

With his hand thrust carelessly into the open front of his vest, as we see him in his portrait, the Deacon calmly took that step out of the world which his own ingenuity is said to have shortened.

The Edinburgh Evening Courant of 2nd October, 1788, voices the popular sentiment of the time as follows:—“Thus ended the life of William Brodie, whose conduct, when we consider his situation in life, is equally singular and contradictory. By the low and vicious connections he formed he had everything to lose—he could gain little even if successful; for, from the moment he embarked in the enterprises of his desperate associates, his property, his life, was at their mercy. Indeed, his crimes appear to be rather the result of infatuation than depravity; and he seemed to be more attracted by the dexterity of thieving than the profit arising from it. To excel in the performance of some paltry legerdemain or slight-of-hand tricks, to be able to converse in the cant or flash language of thieves, or to chant with spirit a song from the ‘Beggar’s Opera,’ was to him the highest ambition. Those who knew him best agree that his

Deacon Brodie.
(After Kay.)

disposition was friendly and generous, and that he had infinitely more of the dupe than the knave in his composition; and was, indeed, admirably fitted for designing and wicked men to work upon.” The Deacon, even in his own day, did not lack apologists. And though there may be some diversity of opinion regarding the precise shade which that unhappy gentleman had stained a character in other respects not without redeeming traits, there can be none as to the monstrous injustice of the penalty exacted by the law for his offence. In these more merciful times, when conscientious juries hesitate to convict the guilty upon a capital charge, and rather than deliver a fellow-being to an irrevocable doom will sometimes evade responsibility by the via media of “not proven,” it is difficult to realise the callous indifference to human life for which our criminal code was formerly notorious. At that period a man might, literally, as well be hanged for a sheep as for a lamb; and that the Deacon should suffer a punishment so disproportionate to his deserts would, however repugnant to modern feeling, seem natural enough to his stoical contemporaries.

In explanation of the singular degree of coolness exhibited to the last by Deacon Brodie, a curious story became current. Much anxiety had undoubtedly been shown both by himself and others that his body might not be detained in prison, but should be delivered to his friends so soon as the execution had taken place. With this view the Deacon, on the forenoon of the fatal day, addressed to the Lord Provost the following remarkable letter:—

“Edinburgh Tolbooth,
“Oct. 1, 1788, Eleven o’clock.

“My Lord,

“As none of my relations can stand being present at my dissolution, I humbly request that your Lordship will permit —— to attend, it will be some consolation in my last hour; and that your Lordship will please give orders that my body after be delivered to and by no means to remain in gaol; that he and my friends may have it decently dressed and interred. This is the last request of

“Your most obedient
but most unfortunate,
Will. Brodie.”

“Both of which requests,” we are told, “his Lordship most readily granted.” It is said, by the author of the letterpress in “Kay’s Portraits” (1877, vol. 1., pp. 262-3), on the authority of an eye-witness of the execution, that Brodie had been visited in prison by a French quack, Dr. Peter Degravers, who undertook to restore him to life after he had hung the usual time; that, on the day preceding the execution, this individual had marked the Deacon’s temples and arms with a pencil, in order to know the more readily where to apply his lancet; and that with this view the hangman had been bargained with for a short fall. “The excess of caution, however, exercised by the executioner in the first instance in shortening the rope proved fatal by his inadvertency in making it latterly too long. After he was cut down his body was immediately given to two of his own workmen, who, by order of the guard, placed it in a cart and drove at a furious rate round the back of the Castle. The object of this order was probably an idea that the jolting motion of the cart might be the means of resuscitation, as had once actually happened in the case of the celebrated ‘half-hangit Maggie Dickson.’ The body was afterwards conveyed to one of Brodie’s own workshops in the Lawnmarket, where Degravers was in attendance. He attempted bleeding, &c., but all would not do. Brodie was fairly gone.”

The irregular practitioner above mentioned was certainly in Edinburgh about that time, for we read in the newspapers of the day advertisements, which he issued from his rooms in Charles Street, offering his professional services to the public at the moderate fee of half-a-crown “in all cases.” Judging by the testimonials from grateful patients which he also published, the doctor must have given wonderful value for the money; but in the somewhat exceptional circumstances of the Deacon’s case he would, if successful, have surely been entitled to a larger fee.

A more picturesque, if less probable version of the same story is given by the author of “Reminiscences of Glasgow,” on the authority of Æneas Morrison. It is there stated that any attempt to effect the Deacon’s rescue by overpowering the City Guard or breaking into the Tolbooth having, after due consideration, been abandoned by his friends as hopeless, the following elaborate scheme was to be attempted to save his life. Shortly before the hour of his execution, the Deacon was to beg that he might speak to certain of his friends alone for a few moments upon his private affairs. This request being complied with, the opportunity should be seized for introducing into his throat and mouth a small silver tube made for the purpose, with the view of preventing suffocation, and wires were to be carried down his sides from head to foot to save the jerk from the scaffold. The executioner was to be induced to give him a short drop, and other liberties were to be taken with the fatal rope. A surgeon—doubtless the philanthropic Degravers—was to be in attendance to bleed him as soon as the body was cut down; and, if this succeeded, the Deacon was to lie quiet in his coffin, exhibiting no symptom of life, till such time as it could be safely removed to his own house for presumed interment by his relatives. Whether or not this remarkable programme was ever carried out is not recorded.

It would appear from these reports that an attempt of some kind was made with a view to resuscitate the Deacon; and there is no doubt that many people believed at the time that he had “cheated the wuddy” after all. It was said that he had actually revived and made good his escape from Scotland; that he was afterwards seen and conversed with in Paris. His coffin was certainly interred in the north-east corner of the burying-ground of St. Cuthbert’s Chapel of Ease—now Buccleuch Parish Church; but there is a tradition that, on a subsequent occasion, the grave was opened, when no trace of his body could be found.

These stories are probably apocryphal; but they are curious as showing the exceptional interest which the Deacon’s strange career aroused in the minds of his fellow-townsmen. And although his mortal remains, wheresoever situated, must long since have crumbled into dust, the name and doings of Deacon Brodie are indissolubly associated with the annals of that ancient city in which, to a conclusion so disastrous, he played his double part.

THE TRIAL

———
WEDNESDAY, 27th AUGUST, 1788.
The Court met at Nine o’clock.
———
Judges Present—

THE LORD JUSTICE-CLERK (Lord Braxfield). LORD HAILES. LORD ESKGROVE.

LORD STONEFIELD. LORD SWINTON.

———
Counsel for the Crown—
The Lord Advocate (Ilay Campbell).
The Solicitor-General (Robert Dundas).
William Tait and James Wolfe Murray, Esqs.,
Advocates-Depute.
Agent—
Mr. Robert Dundas, Clerk to the Signet.
———
Counsel for the Pannel William Brodie—
The Dean of Faculty (Hon. Henry Erskine).
Alexander Wight and Charles Hay, Esqs., Advocates.
Agents—
Mr. Robert Donaldson, W.S., and Mr. Alexander Paterson,
Writer, Edinburgh.
———
Counsel for the Pannel George Smith—
John Clerk and Robert Hamilton, Esqs., Advocates.
Agent—
Mr. Æneas Morrison, Writer, Edinburgh.

CURIA JUSTICIARIA S. D. N. Regis, Tenta in Nova Sessionis domo de Edinburgh, Vicesimo Septimo 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 Justiciariae 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 at the instance of Ilay Campbell, Esq., His Majesty’s Advocate for His Majesty’s Interest, for the Crime of Theft attended with House-breaking, in manner mentioned in the Criminal Indictment raised against them thereanent, bearing as follows:—

WILLIAM BRODIE, sometime Wright and Cabinetmaker in Edinburgh, and GEORGE SMITH, sometime Grocer there, both prisoners in the Tolbooth of Edinburgh, You are indicted and accused at the instance of Ilay Campbell, Esq., His Majesty’s Advocate, for His Majesty’s interest: THAT ALBEIT, by the laws of this, and of every well-governed realm, THEFT, more especially when attended with house-breaking, and when committed by breaking into a house used or kept as an Excise Office, or other public office, under cloud of night, and from thence abstracting and stealing money, is a crime of an heinous nature, and severely punishable: YET TRUE IT IS, AND OF VERITY, That You, the said William Brodie, and George Smith, are both, and each, or one or other of You, guilty actors, or art and part, of the said crime, aggravated as aforesaid: IN SO FAR AS, upon the night of the 5th day of March, last, in this present year of our Lord 1788, or upon one or other of the days or nights of that month, or of February immediately preceding, or of April immediately following, You, the said William Brodie, and George Smith, did, by means of false keys, or other instruments, wickedly and feloniously break into the house in which the General Excise Office for Scotland was then kept, in Chessels’s buildings, on the south side of the High-street of Canongate of Edinburgh, within the royalty or liberties of the city of Edinburgh, and county of Edinburgh, and did thence feloniously abstract and steal money, to the amount of Sixteen pounds Sterling, or thereby, consisting partly of Bank-notes, and partly of silver and halfpence. And You, the said George Smith, having been afterwards apprehended, and brought before Archibald Cockburn, Esq., Sheriff-depute of the county of Edinburgh, did, in his presence, emit three several declarations; the first of date the 8th day of March, the second of date the 10th day of March, and the third of date the 19th day of March, all in this present year of our Lord 1788: And having afterwards been brought before John Stewart, Esq., Sheriff-substitute of the said county, You did, in his presence, emit a fourth declaration, of date the 17th day of July, likewise in this present year 1788: The first of which declarations was signed by the said Archibald Cockburn, the second and third by you, the said George Smith, and the said Archibald Cockburn, and the fourth by you, the said George Smith, and the said John Stewart. AND FURTHER, You, the said William Brodie, having, in the month of March last, when the said George Smith was committed to prison, left Edinburgh, and fled from this country; and having afterwards been brought back, and taken into custody, did, upon the 17th day of July, in this present year 1788, in presence of the said Archibald Cockburn, Esq., emit a declaration, which was signed by you, the said William Brodie, and the said Archibald Cockburn; the whole of which declarations, together with a letter written by You, the said William Brodie, and signed John Dixon, dated at Flushing, Tuesday, 8th April, 1788, twelve o’clock forenoon, and addressed to Mr. Matthew Sheriff, upholsterer, Edinburgh; another letter, or two letters, on one sheet of paper, written by You the said William Brodie, and signed with your initials, dated Thursday, 10th April, 1788, and addressed to Mr. Michael Henderson, Grass-market, stabler, Edinburgh; an unsigned scroll, or copy of a letter, in the hand-writing of You, the said William Brodie, marked No. 1. without date or address; another unsigned scroll, or copy of a letter, in the hand-writing of You, the said William Brodie, marked No. 2. without date or address; an account, or state, in the hand-writing of You, the said William Brodie, entitled, “A state of my affairs, as near as I can make out at present from memory, having no other assistance”; a letter, dated London, 1st May, 1788, signed Lee, Strachan, and Co. and addressed to Mess. Eml. Walker and Co., merchants, Philadelphia; a gold watch, with a chain, seal, and key; a chest, or trunk, containing various articles; a five-pound bank-note; an iron coulter of a plough; two iron wedges; an iron crow; a pair of curling irons or toupee tongs; a spur; a dark lanthorn; a pair of pistols; several false keys and pick-locks; and two spring-saws; are all to be used in evidence against You the said William Brodie and George Smith; and, for that purpose, will be lodged in the hands of the clerk of the High Court of Justiciary, before which You are to be tried, in order that You may have an opportunity of seeing the same: AT LEAST, time and place foresaid, the said house in which the General Excise Office for Scotland was then kept as aforesaid, was feloniously broke and entered into, and a sum of money feloniously and theftuously taken and stolen therefrom as aforesaid; and You the said William Brodie, and George Smith, above complained upon, are both, and each, or one or other of You, guilty thereof, actor or actors, or art and part. ALL WHICH, or part thereof, being found proven by the verdict of an assize, before the Lord Justice-General, Lord Justice-Clerk, and Lords Commissioners of Justiciary, You, the said William Brodie, and George Smith, OUGHT to be punished with the pains of law, to deter others from committing the like crimes in all time coming.

ILAY CAMPBELL.

List of Witnesses to be Adduced in the Trial for the
Prosecutor.

1. John Brown alias Humphry Moore, sometime residing in Edinburgh, present prisoner in the Tolbooth of Canongate of Edinburgh.

2. Andrew Ainslie, sometime shoemaker, present prisoner in the Tolbooth of Canongate of Edinburgh.

3. Mary Hubbart or Hubburt, spouse of the said George Smith.

4. Grahame Campbell, sometime servant to the said George Smith.

5. Alexander Thomson, accountant of Excise in Edinburgh.

6. Peter M‘Farlane, clerk in the office of the cashier of Excise there.

7. Adam Pearson, assistant secretary of Excise in Edinburgh.

8. Janet Baxter, servant to the said Adam Pearson.

9. William M‘Kay, porter in the Canongate of Edinburgh.

10. John Duncan, doorkeeper to the Excise Office, Edinburgh.

11. Laurence Dundas, housekeeper of the said Excise Office.

12. Margaret Black, late servant to the said Laurence Dundas.

13. Margaret Bain, late servant to the said Laurence Dundas.

14. James Bonar, deputy-solicitor of the Excise, Edinburgh.

15. Robert Smith, wright in Edinburgh, late foreman to the said William Brodie.

16. Isobel Gilmour, spouse of John Gilmour, ropemaker in West Bow, Edinburgh.

17. Daniel M‘Lean, waiter to William Drysdale, innkeeper in the New Town of Edinburgh.

18. Patrick Taylor, smith in Edinburgh.

19. Charles M‘Leod, apprentice to the said Patrick Taylor.

20. Jacobina Pearson, spouse of Hugh Macpherson, shoemaker in Duddingston, near Edinburgh.

21. John Kinnear, servant to the Earl of Abercorn at Duddingston.

22. Robert Tait, servant to the Earl of Abercorn there.

23. Isobel Wilson, spouse of Adam Robertson, wright in Duddingston.

24. John Clerk, book-keeper to William Drysdale, innkeeper in the New Town of Edinburgh.

25. David Robertson, merchant in Edinburgh.

26. John Geddes, tobacconist in Mid-Calder and county of Edinburgh.

27. Margaret Tweddle alias Geddes, spouse to the said John Geddes.

28. James Laing, writer in Edinburgh.

29. John M‘Leish, clerk to Mr. Hugh Buchan, City Chamberlain of Edinburgh.

30. George Williamson, messenger-at-arms in Edinburgh.

31. William Middleton, indweller in Edinburgh.

32. James Murray, sheriff-officer there.

33. Alexander Williamson, sheriff-officer there.

34. James Fraser, sheriff-officer there.

35. Archibald Cockburn, Esq., Sheriff-depute of the county of Edinburgh.

36. John Stewart, Sheriff-Substitute of the said county.

37. William Scott, Procurator-Fiscal of the county of Edinburgh.

38. William Augustus Wishart, clerk to the said William Scott.

39. Joseph Mack, writer in the Sheriff-Clerk’s Office, Edinburgh.

40. Alexander Fraser, grocer and change-keeper in the New Town, Edinburgh.

41. Laurence Blair, servant to Mr. Charles Hope, advocate.

42. Thomas Longlands, solicitor-at-law in London.

Ilay Campbell.

List of Assize.

1. Andrew Bonar, banker in Edinburgh.

2. Alexander Houston, banker there.

3. Robert Forrester, banker there.

4. Robert Allan, banker there.

5. Henry Jamieson, banker there.

6. John Hay, banker there.

7. William Creech, bookseller there.

8. James Carfrae, merchant there.

9. William Gillespie, merchant there.

10. William Simpson, banker there.

11. George Kinnear, banker there.

12. John Black, merchant there.

13. Francis Blair, merchant there.

14. Elphingston Balfour, bookseller there.

15. Peter Forrester, merchant there.

16. John Thomson, insurance-broker there.

17. Thomas Elder, merchant there.

18. Edward Innes, confectioner there.

19. John Balfour, merchant there.

20. William Fettes, merchant there.

21. John Milne, founder there.

22. Dunbar Pringle, tanner there.

23. Peter Robertson, goldsmith there.

24. Thomas Campbell, merchant there.

25. William Turnbull, merchant there.

26. Alexander Brown, merchant there.

27. Charles Cowan, merchant there.

28. David Paterson, insurance-broker there.

29. Francis Sharp, merchant there.

30. James Donaldson, printer there.

31. John Hutton, stationer there.

32. John Balfour, papermaker there.

33. Robert Young, upholsterer there.

34. John Learmonth, junior, tanner there.

35. Thomas Cleghorn, coachmaker there.

36. Thomas Hutcheson, merchant there.

37. James Craig, corn merchant there.

38. Alexander Bruce, merchant there.

39. Benjamin Yule, baker there.

40. William Smellie, printer there.

41. Orlando Hart, shoemaker there.

42. James Ranken, merchant there.

43. William Young, baker there.

44. William Brown, grocer there.

45. Alexander Weir, painter there.

Rob. M‘Queen.
Dav. Dalrymple.
Dav. Rae.

List of Witnesses To Be Adduced in Exculpation Of
William Brodie.

1. Robert Smith, wright in Edinburgh, late foreman to the said William Brodie.

2. George M‘Intosh, also wright, and late journeyman to the said William Brodie.

3. John Niel, also wright, and late journeyman to the said William Brodie.

4. Arthur Giles, wright in Edinburgh.

5. William Watson, wright in Canongate.

6. William Retson, or Reston, nailer, Portsburgh.

7. James Cargill, ironmonger, Edinburgh.

8. Alexander Miller, ironmonger there.

9. George Burton, ironmonger there.

10. James Goldie, ironmonger there.

11. Daniel MacLean, waiter to William Drysdale, vintner in Edinburgh.

12. George Lees, coachmaker there.

13. Alexander Fergusson, dyer there.

14. Patrick Taylor, smith there.

15. Charles MacLeod, apprentice to Patrick Taylor.

16. Agnes Finlay, spouse to Michael Henderson, stabler, Grassmarket.

17. Alexander MacKay, inner turnkey in the Tolbooth of Edinburgh.

18. James Reid, indweller in Edinburgh, and present prisoner in the Tolbooth.

19. Alexander Brodie, baker, Nether Bow.

20. James Murray, sheriff-officer.

21. Helen Alison, spouse to William Wallace, mason, Libberton’s Wynd.

22. Jane Watt, residenter there.

23. Peggy Giles, servant to—Grahame, publican at Mutton-hole, near Edinburgh.

24. Matthew Sheriff, upholsterer in Edinburgh.

Under protestation to add and eik.

Alexander Wight, for the pannel.

The diet having been called “at the instance of Ilay Campbell, Esquire, His Majesty’s Advocate, for His Majesty’s interest, against William Brodie, sometime wright and cabinetmaker in Edinburgh, and George Smith, sometime grocer there,” the Lord Justice-Clerk desired the pannels to attend to the indictment then to be read.

Mr. Norris, Depute-Clerk of Court, then read aloud the indictment, after which,

The pannels having been asked to stand up,

The Lord Justice-clerk—William Brodie, you have heard the indictment raised against you by His Majesty’s Advocate—are you guilty of the crime therein charged, or not guilty?

William Brodie—My Lord, I am not guilty.

The Lord Justice-clerk—George Smith, you have heard the indictment raised against you by His Majesty’s Advocate for His Majesty’s interest—are you guilty of the crime therein charged, or not guilty?

George Smith—Not guilty, my Lord.

The Lord Justice-Clerk then asked the counsel for the pannels if they had any objection why the said indictment should not be remitted to the knowledge of the assize.

Mr. Charles Hay—My Lords, I appear as counsel for William Brodie, the prisoner at the bar. I do not observe anything in this indictment upon which I can found an objection to the relevancy of it, and therefore I will at present confine myself to a simple denial of the charge against Mr. Brodie, and your Lordships will fall to pronounce the usual interlocutor on the relevancy, in which the prisoner will be allowed a proof of all facts and circumstances tending to his exculpation.

The Solicitor-General—My Lords, I desire to know the nature and tendency of the exculpatory evidence proposed to be adduced, in order that, in the course of leading the proof upon the part of the prosecutor, we may be prepared to meet it.

The Lord Justice-Clerk—It is not sufficient for the prisoner to deny the charge if he intends to prove any facts in exculpation; it is but fair to the public prosecutor and to the gentlemen of the jury that these should now be mentioned that they may have them in their view in the course of the trial.

The Dean of Faculty—My Lords, I likewise appear as counsel for William Brodie, the prisoner at the bar. I admit that it is fair to mention the facts which are to be insisted on in his defence; and therefore, adhering to the general denial of the crime charged, we undertake to prove that Mr. Brodie went, before eight o’clock of that night in which the Excise Office is said to have been broken into, to the house of Janet Watt, a person residing in Libberton’s Wynd, with whom he had a particular connection, and that he remained in that house from the said hour until about nine o’clock the next morning. This will be instructed by the woman herself and by other unexceptionable witnesses.

Mr. Robert Hamilton—My Lords, I appear as counsel for the prisoner George Smith. No objection appears to me upon the relevancy of the indictment, and the prisoner rests his defence upon a general denial of the facts charged, having no exculpatory proof to offer.

The Court then pronounced the following interlocutor:—

The Lord Justice-Clerk and Lords Commissioners of Justiciary, 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 the said William Brodie and George Smith, pannels, they find the indictment relevant to infer the pains of law, but allow the pannels and each of them to prove all facts and circumstances that may tend to exculpate them or alleviate their guilt, and remit the pannels with the indictment as found relevant to the knowledge of an assize.

Robert M‘Queen, I.P.D.

The Court were proceeding to select fifteen from amongst the forty-five gentlemen summoned as jurymen, when it was discovered that some of the witnesses had not come forward. In about half-an-hour they all arrived. The Lord Advocate then moved the Court to inflict some fine on those witnesses by whom the delay had been occasioned; but it being found upon inquiry that the hour of cause, but no particular hour, was specified in the citations given them, his Lordship, in respect that the hour of cause was understood to mean ten o’clock, withdrew his motion, and the Lord Justice-Clerk, to prevent similar delays, gave directions that in time coming the citations given to jurymen and witnesses should bear a specified hour at which their attendance is to be required.

Out of the above forty-five jurymen the following fifteen persons were named to pass upon the assize of the pannels; and the pannels being asked if they had any objections why they should not pass upon this assize, and no objections being made on the contrary, they were all lawfully sworn in by the following oath, five at a time:—

You swear by Almighty God, and as you shall answer to God at the great day of judgment, that you will truth say, and no truth conceal, so far as you are to pass upon this assize.

1. Robert Forrester, banker. 2. Robert Allan, banker. 3. Henry Jamieson, banker. 4. John Hay, banker. 5. William Creech, bookseller. 6. James Carfrae, merchant. 7. John Kinnear, banker. 8. William Fettes, merchant. 9. John Milne, founder. 10. Dunbar Pringle, tanner. 11. Thomas Campbell, merchant. 12. Francis Sharp, merchant. 13. James Donaldson, printer. 14. John Hutton, stationer. 15. Thomas Cleghorn, coachmaker.

The jury being impanelled and furnished with pen, ink, and paper, and copies of the indictment being laid before them, the Court ordered the counsel for the prosecutor to proceed to the evidence.

At this stage, before the evidence was led,

Mr. Wight—My Lords, I likewise attend your Lordships on the part of Mr. Brodie, and although there does not appear upon the face of this indictment any sufficient ground for an objection to the relevancy of it, yet there are some particulars of which I consider it my duty to take notice; and, in order to save time and trouble to the Court, I propose to do it now rather than hereafter.

The law of this country has been very careful to give unhappy men in the situation of the prisoners every opportunity of preparing for their trials; they are allowed fifteen days after being served with their indictments; they are furnished with a list of the witnesses’ names and designations who are to be adduced against them; and the declarations, writings, and articles to be used in evidence in the course of the trial are particularly specified. The present indictment, though not irrelevant, is perhaps laid in the most vague and general manner I have ever seen. Here there are certain letters and declarations founded on, and other articles, such as a gold watch with a chain, and seal, and key, a chest or trunk containing various articles, a five-pound bank-note, an iron coulter of a plough, &c. These are mentioned in so vague a manner as not to distinguish them from other articles of the same kind, consequently in such a manner as not to give the pannels proper opportunity of preparing for their defence. This is the more inexcusable that all of these articles admitted of a more accurate description.

[Here Mr. Wight was interrupted by the Court.]

The Lord Justice-Clerk—Mr. Wight, these objections are out of place; they ought to be stated when the articles you mention come to be produced by the prosecutor.

The Dean of Faculty—It is no doubt true that the objection to each of these articles falls properly to be stated when they are founded upon by my Lord Advocate; but it was thought proper and respectful to the Court to state the general objection at this stage of the business in order to save time.

The Solicitor-General—My Lords, I wish that Mr. Wight may be allowed to proceed.

The Lord Justice-Clerk—Mr. Wight, go on.

Mr. Wight—I say, my Lords, that the articles mentioned in the indictment admitted of a more accurate description than that which my Lord Advocate has given them. The maker’s name and number of the watch might have been mentioned, the device on the seal, too, ought to have been specified, also the number of the note and by whom it was issued; and as to the chest or trunk, which is only described by saying that it contained sundry articles, there is no particular description of it, or of any of the articles it contained. It is not said that it is a hair trunk, or the size or shape of it, or any other

The Solicitor-General (Robert Dundas).
(After Kay.)

mark condescended upon, whereby it could be distinguished. It might have been mentioned what sort of a trunk it was, whether made of fir, of oak, or of ash; to whom it belonged, and where and in whose possession it was found.

To show your Lordships that this is no immaterial objection, I must beg leave to mention a circumstance that occurred in the present case. Some days ago, Mr. Brodie’s agent went to the Justiciary Office to examine the articles founded on in the indictment; and upon inquiring for the trunk, he was shown a black trunk, a trunk different from the one now to be used in evidence. Thereafter the counsel for the Crown discovered they had committed a mistake; they were so much misled by this want of description that they had sent the trunk referred to, or meant to be referred, in the libel to the prison to Mr. Brodie, and had lodged a wrong trunk with the Clerk of Court. They did not discover this mistake till yesterday morning, and they then applied to the Sheriff for a warrant to recover the trunk, which is now in Court, out of the possession of Mr. Brodie, and which was only lodged in the Justiciary Office yesterday.

Although I have thrown out this general objection, I do not mean to plead it to the effect of setting aside the libel altogether; yet, when the prosecutor attempts to apply his evidence to these articles, I reserve to myself the liberty of making special objections to each article, as it shall be referred to.

The Solicitor-General—My Lords, I will not take up the time of the Court in making any answer to the objection stated, as to the manner in which the watch and the other articles are described in the indictment, as I have no hesitation to say that it does not deserve one. All these articles, as well as the other articles libelled on, have been for weeks past lying in the hands of the Clerks of Court, where the counsel and agents for the pannels have had full opportunity of examining and taking from them whatever description they might think proper.

As to the story of the trunk, it is shortly this: there were two trunks the property of Mr. Brodie; and one of them, containing linens and other articles, was, from motives of humanity, allowed to remain in his possession. This was the trunk referred to in the indictment; the other was, however, sent by mistake to the Justiciary Office, but as soon as the error was discovered, Mr. Brodie was applied to to deliver up the proper trunk. This he refused to do, and therefore it became necessary to apply to the Sheriff, who granted a warrant; in consequence of which it was recovered from the prisoner and lodged in the Justiciary Office. This is the plain state of the fact, and, having laid it before your Lordships, I do not consider it necessary to add one word more to the subject.

The Lord Advocate—My Lords, if it had been intended to charge the prisoners with stealing the watch, or any of the other articles, a more accurate description might have been necessary, but here there is no such intention—the crime of which the prisoners are accused is breaking into the Excise Office.

From the nature of the thing, my Lords, as well as from the tenor of the indictment, it must be evident to every one that it is only meant to produce these articles in evidence, to refer to them when the witnesses are examined. It may be necessary, for example, to prove that certain letters were found in the chest, and to whom the chest belonged; it is no matter of what form the chest is, and not of the smallest consequence whether it is identified or not; nay, more, my Lords, there was no necessity for producing it at all. If every nail of a trunk or every trinket of a watch, or other articles which it might be necessary to found upon in trials of this kind, were to be so particularly described as Mr. Wight has contended for, it would swell indictments to a very inconvenient and unnecessary length.

The objection that the proper trunk was not produced in sufficient time to give the prisoner an opportunity of examining it is certainly a very uncommon one, when it is considered that it was allowed to remain in his own possession until yesterday; and with regard to the watch, all the use I mean to make of it is to identify some letters from Mr. Brodie, which are sealed with the seal appended to it.

The Dean of Faculty—My Lords, what may be the consequence to the prisoners at the bar of your Lordships repelling the present objection I do not know. The gentlemen on the other side of the table have taken care to lay their indictment in such a manner as to leave the counsel for the prisoners altogether in the dark as to the nature of the proof they mean to lead and the manner in which these articles are to be used in evidence; but, my Lords, sure I am of this, that the decision of the present question is of the greatest importance to the law of this country. I am not surprised that the Solicitor-General should say that he will make no answer to the objection, because I am convinced that it admits of none.

It is no light matter the framing of an indictment; the specification of the proofs by which it is to be supported is of the utmost consequence. I am persuaded, my Lords, that I would have no difficulty to satisfy your Lordships, from the nature of the thing itself, that this objection is well founded. But I resort to better evidence. I appeal to the Books of Adjournal on your Lordships’ table, and I call upon the counsel for the Crown to point out one single instance recorded in them where articles have been founded on in an indictment and produced in evidence without being specially described. Having so respectable an authority as the uniform practice of your Lordships and your predecessors to support the objection now stated, you will think well before you introduce an innovation that may be attended with the most dangerous consequences.

We are told that some of the articles in question are of no consequence; if so, why are they here? I will not enter into the question whether the trunk was really produced in the Justiciary Office in proper time or not, as all the indictment says is, that “it will be produced.”

My Lords, there are two kinds of articles produced in criminal trials, first the corpora delicti, to prove that the crime was actually committed; and, secondly, articles from which the leading circumstances are to be inferred. The Lord Advocate admits that the first of these must be particularly described, but denies the necessity of describing the second. This is a distinction not known in the law of this country, and directly contrary to the established forms of criminal procedure. What would be the consequence were it recognised? Suppose, for instance, that a person breaks into a house and leaves his hat behind him; nothing could establish his guilt more clearly than to prove that this hat was his. But although this is only a leading circumstance, would it be enough to say that a hat was to be produced in evidence, without specifying where it was found, or any circumstances attending it, so as to give the accused an opportunity of proving that it belonged to another, and not to him?

I will appeal, my Lords, to the practice of the public prosecutor himself, to show that no such distinction exists. A declaration is an article used in evidence as well as a gold watch, yet his Lordship does not think it sufficient to say “a declaration,” without specifying any other circumstances, such as before whom, and of what date, it was emitted. On the contrary, there are several declarations referred to in this indictment, and they are all particularly described. It is the duty of the public prosecutor to specify every particular, and to say what is meant to be proved by each article, or in what manner it has been used in the commission of the crime charged. In the case of Gordon, the sheep-stealer, a man for whom I was counsel at this bar several years ago, and who still languishes in prison, notwithstanding his having received His Majesty’s pardon[1]—your Lordships refused to allow an article to be produced in evidence which had not been libelled on: and the articles objected to might as well not have been libelled on at all, as in the general and vague manner in which they are mentioned in the indictment.

My Lords, there is another circumstance to which I beg to draw your Lordships’ particular attention. It is our good fortune to live under a mild Government; to live in days when there is no danger to be apprehended from the conduct of the public prosecutor; but worse times may arrive, and it is for your Lordships to reflect upon what use might then be made of the present practice if your Lordships were to allow it to be now introduced. The public prosecutor may, for example, libel upon a watch, and the Clerk of Court may show one watch in the Justiciary Office to the prisoner’s counsel or agent, and against the day of trial may produce another in Court. The principal reason why articles such as the present are mentioned in the indictment is that the prisoner may be certain that these articles, and these articles alone, are to be used in evidence against him; and it is clear that this certainty must be withdrawn from the prisoner if a vague description is permitted to be given of them, because, as I have already mentioned, others may be substituted in their place. If an article of evidence be not particularly described so as to prevent the possibility of doubt with regard to the identity of it, the dearest rights of mankind might be endangered and at the mercy of corrupt men, and no one could say how fatal the consequences might be.

The Lord Advocate—My Lords, I admit the justice of what the Dean of Faculty has stated if such an objection as the present were made to the description of the corpora delicti. If the prisoners were charged with having stolen the watch or trunk mentioned in the indictment, the description there given of them would not be sufficient; but, as they are not the corpora delicti, and are only referred to as circumstances of evidence, I contend that the description is sufficient; but, rather than detain the Court longer with an objection of this kind, I will give up the trunk altogether, as I do not suppose that I shall stand in need of it; I, however, submit the matter to the Court.

The Lord Justice-Clerk—Your Lordships have heard the objection and answers on this point. What is your opinion?

Lord Hailes—My Lords, there is no objection made to the production of the different papers founded on in the indictment, and I do not perceive that there is any force in the objection as to the gold watch; because, although the pannel’s counsel cannot know, from the manner in which it is described in the indictment, what is meant to be proved by it, neither do they know what is intended to be proved by the different witnesses who are cited.

The objection with regard to the trunk appears to me to be much more strong; and I confess that I never saw any article so vaguely stated in an indictment as it is in the present case, viz., “a trunk containing various articles.” It is no good answer to the objection that the proper trunk was not timeously produced, that it was allowed to remain in Brodie’s possession, because that article is founded on in the libel against Smith as well as against him. I am therefore inclined to sustain the objection as to the trunk, but no further.

Lord Eskgrove—My Lords, I am not disposed to abridge in the smallest degree the security of the subjects of this country, although the law is here more attentive to the safety of persons accused than in any other country whatever. Here the pannel must not only be furnished with the names and designations of the witnesses, but he must also be made acquainted with every document and article to be used in evidence against him.

In the present case there are a number of writings, and likewise a variety of articles, founded on in the indictment; there is no objection to the production of the papers, but it is objected on the part of the pannel that the other articles are not particularly described. I do not think, my Lords, that this objection is much aided by the argument founded on the declarations and other parts of the libel being more particularly described than these articles.

The Dean of Faculty has referred your Lordships to the Books of Adjournal, from which he says that it appears to have been the practice to describe such articles more minutely; but I have no doubt that a perusal of these books would furnish many instances where articles have been described as loosely as they are said to be in the present libel; and, my Lords, as the pannel’s counsel have neither produced, nor offered to produce, any decision of this Court finding libels irrelevant from the articles referred to in them being thus described, I am bound to hold the objection to be of no force.

My Lords, I can see no injury that will be sustained by the prisoners by the repelling of the present objection; all the articles were lodged in the hands of the Clerk of Court, and their agent and counsel had an opportunity of examining them. The trunk is no doubt vaguely described, but that appears to me not to be material, because it will not be sufficient for a witness to say that he found papers or other articles in a trunk; he must say that he found them in the trunk shown to him in Court, otherwise his evidence in that particular will be of no consequence. If the pannels should say that this is a different trunk, and that they never saw it before, I would listen to the objection; but as they cannot, and as I can figure no injury to the prisoners in repelling this objection, I am for over-ruling it.

Lord Stonefield—My Lords, I think the description in this case is sufficiently full; therefore I am for repelling the objection.

Lord Swinton—My Lords, the present objection is made in the wrong place; and I cannot so well judge of it in this general shape as I could have done had it been stated when the particular articles came to be used in evidence; but I must judge of it in the form in which it has been brought before the Court.

I think, my Lords, that it ought to be repelled for the reasons your Lordships have already heard, and because no injury can be done to the pannels from these articles not having been more particularly described, as they will have an opportunity of traversing the evidence that may be brought relating to them. There are many of the articles, such as two iron wedges, an iron crow, &c., that would not admit of a more particular description than has been given. Upon the whole, my Lords, I am for repelling the objection.

The Lord Justice-Clerk—My Lords, the present question is of great importance to the law of this country. I am one of those who are always for giving fair-play to pannels, and will never allow any advantage to be taken of them; but I am likewise for giving fair-play to evidence. It is frequently necessary, my Lords, that the testimony of witnesses should be elucidated by articles referred to being produced; but if the present objections were sustained, I am afraid it would strike against the admissibility of this kind of evidence altogether; because, let a public prosecutor describe such articles with the greatest attention, it still may be contended that they admitted of a more accurate description than the one given.

By the former state of our law the prosecutor was not allowed to prove anything that was not particularly specified in the libel; but the Act 153, Parliament 11th, James VI., was introduced to obviate this defect in our law, and by that Act the prosecutor is allowed to prove every circumstance to substantiate the charge, or in general art and part of the charge. It is very true, my Lords, that the humanity of public prosecutors of late years has induced them to be more special than they had any occasion to be, but surely they are not cut off from the generality allowed them by law, although such generality may have been deviated from through lenity in practice. Apply this to the present case. It is true that the Lord Advocate, as public prosecutor, has been induced to state particular circumstances, and to specify the articles to be founded on; yet that does not alter the law, nor deprive him of the generality which he is allowed by law. As the names of witnesses are given, without specifying what they are to say, in the same way it is only necessary to state that such articles are to be produced in evidence, but not necessary to specify a description of them; and it is the duty of the prisoner himself, or those who act for him, to survey them when lodged in the Justiciary Office. As there is no precise time against which articles to be founded on are required to be lodged in the Justiciary Office, there appears to be no undue delay in lodging this trunk. Had it been pled that it was not lodged debito tempore, and that the pannel had been injured thereby, then a delay of the trial must have taken place.

I remember it once happened on a circuit that the articles founded on in the libel were only lodged the very morning of the trial in the Clerk’s hands; but I then refused to allow them to be founded on, because the pannel had not a reasonable time to prepare himself against evidence that might arise from the production of these articles; but the present case is very different, and therefore, upon the whole, I am for repelling the objection.

Mr. John Clerk—My Lord Justice-Clerk, before the interlocutor is written out, I beg leave to make one objection in behalf of the pannel, George Smith.

The Lord Justice-Clerk—What! After the Court have delivered their opinions, it is not decent in you to propose to say anything, and I apprehend the prisoners are in no danger of suffering anything by your not being allowed to supply the defects of the Dean of Faculty.

Mr. John Clerk—My Lord, the Dean of Faculty has no authority to plead for my client.

The Dean of Faculty then moved the Court to allow the general objection to be entered upon record, and proposed to repeat it and refer to it as often as any of the particular articles came to be produced in evidence, which was accordingly agreed to, and the following interlocutor was pronounced repelling the objection:—

The Lord Justice-Clerk and Lords Commissioners of Justiciary having considered the foregoing debate, they repel the objection stated to producing and founding on the articles specified in the objection and mentioned in the indictment, and allow them to be adduced in the course of the trial.

Robt. M‘Queen, I.P.D.

The prosecutor, for proof of the indictment, then proceeded to adduce the following witnesses, who were all lawfully sworn, purged of malice and partial counsel, and emitted their depositions viva voce in presence of the Court and jury, without being reduced in writing, in terms of the late statute.

Evidence for Prosecution.

William Scott

1. William Scott, Procurator-Fiscal of the county of Edinburgh, called in and sworn.

Examined by Mr. Murray—Mr. Scott, you know the prisoners at the bar? Were you present when they emitted certain declarations before the Sheriff-depute of Edinburgh and his substitute?

Witness—I was.

Mr. Murray—Look at these declarations, and tell the Court and the gentlemen of the jury if they were emitted in your presence by the pannel, George Smith, freely and voluntarily.

Witness—They were; and the prisoner appeared to me at the time cool and recollected.

Mr. Murray—Look at this declaration. Was it emitted in your presence by the other pannel, William Brodie, freely and voluntarily, and he was cool and recollected?

Witness—It was emitted in my presence freely and voluntarily, and he was cool and recollected.

Mr. Murray—Do you know anything concerning a warrant that was applied for against William Brodie in the month of March last? If you do, tell the Court and the gentlemen of the jury what happened in consequence of it?

Witness—Upon the afternoon of Monday, the 10th of March last, I, as Procurator-Fiscal, gave in a petition in my own name to the Sheriff of Edinburgh, charging Mr. Brodie with breaking into the Excise Office, and praying for a warrant to apprehend him. A warrant was accordingly granted, and search diligently made for him that night, but he was not found, and I afterwards learned that he had gone off for London on the day preceding.

Cross-examined by Mr. John Clerk, for George Smith—Mr. Scott, you say you were present when George Smith emitted the declarations which have been shown you; did Smith, in the course of his different examinations, say anything more than is contained in these declarations?

Witness—I do not think he did; everything material was taken down. No compulsion or undue means was used to induce the prisoners to sign these declarations.

Joseph Mack

2. Joseph Mack, writer in the Sheriff-Clerk’s Office of Edinburgh, called in and sworn, and shown the declarations above mentioned.

Witness—These declarations were written by me, to the dictation of the Sheriff, and were emitted by the pannels freely and voluntarily, and the pannels appeared to me to be cool and recollected when emitting them.

Cross-examined by Mr. John Clerk—Was everything which Smith declared when examined taken down?

Witness—Everything that was material. With regard to the robbery of Bruce’s shop—[Here the Court stopped the witness, as that was a matter which was not before them.]

The Lord Justice-Clerk—Did he desire anything to be taken down that was not?

Witness—No.

Thomas Longlands

3. Thomas Longlands, solicitor-at-law in London, called in and sworn.

Examined by Mr. William Tait—Mr. Longlands, did you hear of William Brodie, the prisoner at the bar, having fled from this country in March last, and of his having been brought back? Tell the Court and the gentlemen of the jury what you know of the matter?

Witness—In the month of June or July last I was employed by the officers of the Crown for Scotland to take such steps as appeared to me to be proper for the discovery of Mr. Brodie. In consequence of this employment I called frequently at the Secretary of State’s Office, and had several conversations with Mr. Fraser, Under-Secretary in the office of Lord Carmarthen, and gave them the information I had received from Scotland. I likewise waited upon Sir Sampson Wright, of the Public Office, Bow Street, whose assistance I judged necessary to call in as to the proper measures to be pursued. As the information received gave reason to suspect that Mr. Brodie was at Flushing, Ostend, or some place in Holland, it was agreed upon to send a messenger immediately in search of him. Sir Sampson Wright recommended to me a Mr. Groves from his office as a proper person to send to the Continent in search of Mr. Brodie, and I accordingly despatched him with proper instructions. Mr. Groves traced Mr. Brodie to Ostend, and learned that he had been there upon the 4th of June, His Majesty’s birthday, and he was afterwards traced to Amsterdam, where he was apprehended, identified, and committed to prison. Upon proper application, he was delivered up to Mr. Groves, and was brought from thence to London by him. Immediately upon his arrival at London he was examined before Sir Sampson Wright, and committed to Tothilfields Bridewell; some time afterwards he was sent to this country. I was present at the examination of the person brought back from Amsterdam, and I know the prisoner at the bar to be him. There was a trunk containing linens and a variety of other articles, belonging to Mr. Brodie, brought with him from Amsterdam; and I received from Mr. Cartmeal, one of the persons who came along with him, two watches, twenty crowns, and some other articles, which he said were found upon Mr. Brodie; and the watch now upon the table I know to be one of them, having taken particular notice of the maker’s name and number. [The counsel for the pannels here repeated the objection against adducing the watch, as mentioned in the general objection and interlocutor before taken down.] There was likewise another trunk belonging to Mr. Brodie, which was sent over from Ostend by Sir John Potter, in consequence of a letter written to him in my presence by Mr. Groves, after Brodie’s return to London. This trunk, upon its being brought to London, was opened by Sir Sampson Wright in my presence, and in the course of examining the contents of it I discovered a wrapper with some papers, which I opened, and some of the papers appearing to me to be important, I transmitted them to the Lord Advocate. [Here the unsigned scrolls were shown to the witness.] Both Sir Sampson Wright and I put our initials to them, and I am sure that these are the same, as well from seeing my initials as from the strength of some of the expressions, which made a great impression upon me at the time. [The state of affairs and letters of credit were likewise shown to the witness.] I have seen these before; they came in a packet to Sir Sampson Wright from Mr. Rich, the English resident at Amsterdam, and Sir Sampson Wright delivered to me the letter in which they came with them inclosed.

Cross-examined by the Dean of Faculty—Mr. Longlands, have you any other cause of knowledge concerning the trunks and other articles being the property of Mr. Brodie, and the same which were brought from Ostend and Amsterdam, than the information of Sir Sampson Wright and Mr. Groves?

Witness—No other cause of knowledge than what I have already mentioned, namely, the letters accompanying the same, which I saw, and my being present when the trunks were opened.

John Geddes

4. John Geddes, tobacconist in Mid-Calder, called in and sworn.

Examined by the Solicitor-General—Were you lately in London? Do you know the prisoner? Tell the jury what you know about him?

Witness—I was in London in the month of March last, and my wife and I took our passage in the “Endeavour,” of Carron, Captain Dent, bound for Leith. We went on board on a Saturday, and the next day, Sunday, the vessel fell two or three miles down the river, and then we cast anchor at Blackwall. In the evening the master went on shore to get hands to man her, leaving me and my wife on board. About twelve at night a passenger, who appeared sickly, came on board, in company with Mr. Hamilton and Mr. Pinkerton, two of the owners of the vessel, and another gentleman I did not know. These gentlemen remained about half an hour, and then all went ashore, except the passenger, who remained on board. He was dressed in a blue great-coat, with a red collar, round wig, black vest, breeches, and boots. He was allotted a bed in the state-room, near the fire, as he was sick. The next morning the vessel set sail, but afterwards ran aground opposite to Tilbury Point, where she remained about eight or ten days, and we did not get clear of the Thames for a fortnight. During all that time the passenger remained on board, except one day that he, along with the master of the vessel and my wife and I, went on shore, and dined at a neighbouring village, and another day that he went ashore by himself to get a bottle of milk. For the first two or three days after the passenger came on board we called him “the gentleman,” as we did not know his name, but, upon my inquiring of him what his name was, he told me it was John Dixon.

The Solicitor-General—Would you know that person again?

Witness—I would.

The Solicitor-General—Look at the prisoners at the bar and say if you know either of them?

[Here the witness pointed out Mr. Brodie to be the same person that had called himself John Dixon.]—On getting out to sea Mr. Dixon delivered to the captain a letter from Mr. Hamilton or Mr. Pinkerton, but, although I desired him to let me read it, I did not see it. In consequence of this, the captain altered his course and steered for Holland, and the vessel, although bound for Leith, sailed to Flushing. I do not think she was driven there by contrary winds, as the wind was south-west, and fairer for Newcastle or Leith than for Holland. During the voyage, Mr. Dixon complained much of a sore throat. When we arrived at Flushing we cleaned ourselves and went ashore, and Mr. Dixon set off for Ostend in a skiff which he hired for that purpose. On shore, before he left, Mr. Dixon gave me a packet containing two letters, one of which had another within it, to carry to Scotland to be delivered in Edinburgh. One of the letters was directed to Mr. Michael Henderson, stabler in the Grassmarket, in which there was one inclosed to Mrs. Anne Grant, Cant’s Close, and the other to Mr. Matthew Sheriff, upholsterer in Edinburgh, signed and dated as mentioned in the indictment. We did no business at Flushing, and I am of opinion that the ship did not come there with that intention. After landing Mr. Dixon we sailed for Leith. When I arrived in Leith, from the accounts I heard about Brodie, I was convinced that Dixon and Brodie were the same person. Next day I went to Mid-Calder, and about three weeks afterwards was at Dalkeith, where I had occasion to see the newspapers, and the description of Brodie therein given confirmed me in the above suspicion. I then delivered the letters to Sheriff Cockburn. I had previously opened the packet and read them. [The witness was here shown the letters libelled on.] I know that these are the letters I received from the prisoner and delivered to the Sheriff.

The Solicitor-General—Did Brodie say that he had any business at Flushing?

Witness—He mentioned that he had business at Ostend, and Captain Dent said he was to wait till he returned, and that he supposed he belonged to the Carron Company; but when the wind came fair, Captain Dent said he would not wait for him, and the devil a bit of business he supposed he had.

Cross-examined by the Dean of Faculty—You have told us that you went ashore when you arrived at Flushing. Pray, sir, did you make any purchases there?

Witness—None, except a piece or two of nankeen for breeches to myself.

The Dean of Faculty—Did you purchase nothing else?

Witness—Nothing, except two or three handkerchiefs for my own use.

The Dean of Faculty—You will remember, sir, that you are upon your great oath, and that it is your duty to tell the whole truth.

Lord Hailes—My Lords, the witness should be informed that if he purchased any contraband goods he has nothing to fear from acknowledging that he did so.

The Lord Justice-Clerk—It is certainly very proper. [To witness]—John Geddes, if you made any purchases of contraband goods when you was at Flushing, it is your duty to inform the Court and the gentlemen of the jury that you did so, and you have nothing to fear from such an acknowledgment, because whatever you say here will be no evidence against you afterwards in the Court of Exchequer or elsewhere.

The Dean of Faculty—Did you purchase no lace, sir, when you was at Flushing?

Witness—A few yards.

The Dean of Faculty—Why, then, did you say that you purchased nothing except the nankeen and the handkerchiefs?

Witness—It was my wife and not me that purchased it.

The Dean of Faculty—Did you offer the lace for sale?

Witness—No; there is part of it about a cloak which my wife has here with her, and I believe part of it about her sister’s.

The Dean of Faculty—And what became of the rest of it? Remember, sir, you are upon your great oath.

Witness—That was it all, except a few yards I sold at Bathgate for twenty-two shillings.

The Dean of Faculty—Did you not say even now that you had offered none of it for sale?

Witness—I said that I offered none of it for sale in this place.

The Dean of Faculty—Did you purchase no tobacco in Flushing?

Witness—I did not, except a little for chewing.

The Dean of Faculty—Did you purchase any gin?

Witness—None, except a little for sea store.

The Dean of Faculty—Pray, sir, when did you open these letters you have told us of? Was it before or after you came to Leith?

Witness—It was after.

The Dean of Faculty—You told us, sir, that upon reading the newspapers you discovered that Dixon and Brodie were one and the same person. Pray, sir, when or where did you first read the newspapers?

Witness—At Dalkeith.

The Dean of Faculty—How long was that after your arrival?

Witness—Three weeks.

The Dean of Faculty—And pray, sir, what was the reason that in all that time you did not deliver these letters to the persons to whom they were directed?

Witness—I did not remember that I had such letters when I was in Edinburgh myself, and I afterwards wished my brother-in-law to deliver them.

The Dean of Faculty—Did you open the letters?

Witness—I did.

The Dean of Faculty—And what was your reason for doing so?

Witness—I opened them and delivered them to the Sheriff for the good of my country.

The Dean of Faculty—And would it not have been as much for the good of the country to have delivered them without opening them?

Witness—I just opened them, and that’s all; I can give no other reason.

The Dean of Faculty—Did you inform any person that you had such letters?

Witness—I did; I informed John Tweddle, my brother-in-law, who advised me to deliver them to the persons for whom they were intended. I afterwards showed them to a gentleman named Mr. Learmonth in Linlithgow, who wrote a letter by me to a gentleman of this place.[2] By him I was carried to Mr. Erskine, but he would give me no advice, and therefore I returned home to Mid-Calder. That same evening, or early next morning, Mr. Scott, Procurator-Fiscal, and Mr. Williamson, messenger, called upon me, and I accompanied them to Edinburgh and delivered the letters to the Sheriff.

The Dean of Faculty—My Lords, as the witness has mentioned his having called upon me, I beg leave to state to the Court what passed upon the occasion. He was brought to my house by a gentleman, and he showed me the letters. I informed him that I was counsel for Mr. Brodie; that he himself knew best the directions that he had received from the person who committed these letters to his charge; and that I could give him no other advice than this, that he ought to do in the matter that which his own conscience should point out to him as most proper.

The Lord Justice-Clerk—That was a very proper advice, and was just what I would have expected from the Dean of Faculty.

The Lord Advocate—My Lords, you will have observed that there were three letters from the prisoner delivered up. It was only judged necessary to libel on two of them; but if the prisoner thinks that the other letter, or any of his other papers in my possession, will be of the least service to him in supporting his defence, I have no objection to produce them.

Margaret Tweddle

5. Margaret Tweddle, spouse of the said John Geddes, called in and sworn.

Witness—I was in London with my husband in the month of March last, and went with him on board of a vessel bound for Leith. One night, when it was dark, a person, whom I now see a prisoner at the bar, and some others with him, came on board. The prisoner remained on board, but the others went ashore in about half-an-hour afterwards. I think the person had a wig on when he came on board, and he appeared to be in bad health. He passed by the name of John Dixon. The vessel sailed for the coast of Holland, and when she arrived there the prisoner went on shore. I saw my husband receive a packet of letters from Mr. Dixon; but I know nothing more of them. I never saw these letters afterwards.

Cross-examined by the Dean of Faculty—Did you or your husband make any purchases while in Flushing?

The Lord Justice-Clerk—Margaret, if you or your husband purchased any contraband goods when you were at Flushing you will inform the Court and the gentlemen of the jury that you did so, and you have nothing to fear from such an acknowledgment, because whatever you say here will be no evidence against you afterwards in the Court of Exchequer or elsewhere.

Witness—We purchased some pieces of nankeen, some handkerchiefs, and some yards of lace.

Robert Smith

6. Robert Smith, wright in Edinburgh, called in and sworn.

Witness—I was some time ago foreman to the pannel, Mr. Brodie, and I remember to have been sent for by him upon the Sunday morning, the 9th of March, at eight o’clock, after it was reported that the Excise Office had been broke into. The message was not particular, but such a one as I usually received from him when he wanted to give me orders about some work, as he frequently sent for me for that purpose, especially if he was going to the country. When I came to him he asked me if there were any news about the people who had broke into the Excise. I answered that I had been informed that George Smith was committed to prison, and that Brown had been sent into England in search of Inglis & Horner’s goods. I added that I hoped he, Mr. Brodie, had no concern in these depredations; but he returned to me no answer. The reason I asked this question was that I had often seen my master in their company, and knew him to be intimate with them. Mr. Brodie told me he was going out of town for a few days, and sent me a message for a waistcoat and pair of breeches; but before my return he was gone, and I did not see him again till after he was brought back to this country. On the Monday evening following, the 10th of March, a search was made for him, and several doors of his house were broken open, in virtue of a warrant from the Sheriff, as I was informed. [Here the witness was shown the two letters founded on in the indictment, and desired to say whether or not they were in the handwriting of Mr. Brodie.] I have seen the handwriting of Mr. Brodie, and I think the writing of these letters very like his, but I never saw Mr. Brodie subscribe with initials; and as I am no judge of writing, I cannot say whether I believe these letters to be written by Mr. Brodie or not. [Here the witness was shown the unsigned scrolls, and desired to say whether or not he believed they were in the handwriting of Mr. Brodie.] I never saw Mr. Brodie write so bad a hand as these letters are written in, nor after the manner in which they are written, and I do not think that they have been wrote by Mr. Brodie. [Here the state of affairs referred to in the indictment was shown to the witness.] I think this is very like the handwriting of Mr. Brodie, much more so than any of the others.

James Laing

7. James Laing, writer in Edinburgh, called in and sworn.

Witness—I am assistant clerk in the Council Chamber. I know Mr. Brodie, the prisoner at the bar. I have seen him write, and I am a little acquainted with his handwriting. [Here the two letters were shown to the witness.] The writing of these letters is very like Mr. Brodie’s handwriting. I think they have been wrote by him. [Here the unsigned scrolls were shown to the witness.] I think these are of Mr. Brodie’s handwriting too, though worse written. [State of affairs shown to the witness.] I think this also is written by Mr. Brodie.

John Macleish

8. John Macleish, clerk to Hugh Buchan, City Chamberlain of Edinburgh, called in and sworn.

Witness—I know Mr. Brodie, the prisoner at the bar, and have had some opportunity of knowing his handwriting. I have got receipts from him in the Chamberlain’s office, and have received cards from him. I have likewise seen him write in his own shop. [Here the witness was shown the two letters.] I think these letters are of his handwriting. [Shown the scrolls.] I never saw Mr. Brodie write in so crowded a way, or interline so much, but, notwithstanding, I think that these are of his handwriting. [State of affairs shown the witness.] I think that this also is of Mr. Brodie’s handwriting.

Cross-examined by the Dean of Faculty—How do you come to know Mr. Brodie’s writing so exactly?

Witness—From many accounts and receipts, of his writing, which I have in my custody belonging to the office.

John Duncan

9. John Duncan, door-keeper to the Excise Office, Edinburgh, called in and sworn.

Witness—I have been in that office for thirty-seven years. The doors of the Excise Office, when it was kept in the Canongate, were usually locked by me about eight o’clock at night, and I carried the key immediately thereafter to the housekeeper. A watch was set to guard it about ten o’clock, and the night watchman went away about five in the morning. I remember to have locked the door on Wednesday, the 5th of March last, about a quarter after eight o’clock in the evening, and I gave the key to one of Mr. Dundas, the housekeeper’s, maid-servants. The cashier’s room lay within the outer door, which I had locked, as before mentioned, and it had a double door.

Cross-examined by Mr. Clerk, for George Smith—Pray, sir, was the Excise Office kept in one or in two houses?

Witness—The Excise Office was kept in a large house; but there was likewise a small house fronting and adjoining the great one, in which Mr. Broughton’s office and the Register of Seizures were kept. There was no communication from the one to the other without going out to the open air, and the whole were in one court, inclosed by a parapet wall and iron rail.

William Mackay

10. William Mackay, porter in the Canongate of Edinburgh, called in and sworn.

Witness—I was employed as a watch to guard the Excise Office when it was kept in Chessels’s Buildings, and upon Wednesday, the 5th day of March last, I went to the office at the usual hour, which was a little before ten o’clock at night. I found one of the leaves of the outer door open, and the passage door and the door of the cashier’s room also open; and upon making this discovery I went to Mr. Dundas, the housekeeper’s, and inquired of the maid who had been last at the office, as the doors were open. The maid answered John Duncan, the last witness, had left it about a quarter after eight o’clock. Mr. Dundas’s son, hearing me make this inquiry, asked what was the matter. When I told him that the door was broke open, he said, “Then, something worse is done.” Immediately Mr. and Mrs. Dundas and the whole family went into the office with me and examined the cashier’s room; we found all the desks and presses broke open, and the coulter of a plough, and two iron wedges, lying in the room; and we likewise found a spur in the hall, with part of the leather of it torn. Mr. Dundas immediately sent me for Mr. Alexander Thomson, the accountant. I found Mr. Thomson, and he returned with me to the Excise Office. [Here the witness was shown the coulter of the plough, the two iron wedges, and the spur.] These are the same articles which I saw in the Excise Office. [The counsel for the pannels here repeated the objection against adducing the coulter and two wedges, as mentioned in the general objection and interlocutor before taken down.]

Alexander Thomson

11. Alexander Thomson, accountant of Excise, called in and sworn.

Witness—I remember that the Excise Office was broke into on Wednesday, the 5th of March last. When I left the office at the usual hour that night, about eight o’clock, I locked the door of the cashier’s room before I left, and carried the key away with me. I saw John Duncan, the door-keeper, in the hall as I came out. I left in two concealed drawers below the desk about £600 sterling, and in the desk itself £15 16s. 3½d., being two-thirds of the proceeds of a seizure sent from Greenock, to be divided amongst three people. About ten o’clock the same evening the office porter, or watchman, came to me and informed me that the Excise Office had been broken into. I immediately repaired to the office, and found Mr. Dundas, the housekeeper, and Mr. Pearson, the secretary, there; and, along with them, I examined the premises. The outer door and the passage door appeared to have been opened without violence, but the door of the cashier’s room seemed to have been forced with a lever or other instrument; the door of a small press in the room appeared likewise to have been forced open, and a few shillings, and some stamps for receipts that were in it, carried off. The key of my desk, which I usually kept in this place, had likewise been taken out, and the desk opened with it. The £15 odds, which I had left in the desk, were gone, and also a receipt for £7 18s. 2d., but the concealed drawers, in which the £600 was contained, were untouched. These drawers cannot be opened without first opening the desk, and the keyhole is concealed by a slip of wood, which might escape a slight observer. Accordingly it had remained untouched, although the key of it lay in the desk. Behind the door there was left the coulter of a plough and two iron wedges—[Here these articles were shown to the witness]—the same as these now on the table.

Cross-examined by Mr. John Clerk for George Smith—Pray, Mr. Thomson, was the Excise Office, when in the Canongate, kept in one house or in two houses?

Witness—It was kept in three houses, or in one large house, consisting of a front and two wings, and, besides this principal house, there was a small one fronting, and nearly adjoining to it, in which Mr. Broughton’s office, Mr. Dick’s office, and the Register of Seizures were kept.

Laurence Dundas

12. Laurence Dundas, housekeeper of the Excise Office, called in and sworn.

Witness—There was a practice, previous to the time when the Excise Office was broke into, of locking the door betwixt eight and nine o’clock at night, and lodging the key in my house, and of putting a watch upon it at ten o’clock. I remember that upon Wednesday, the 5th of March last, the door was locked at the usual hour, and the key left by John Duncan at my house. A little before ten o’clock that night, William Mackay, the porter employed to watch the office, came to my house and gave information that the office had been broke open. I immediately went to the office, and found the outer door, the passage door, and the door of the cashier’s room, all open. This last-mentioned door seemed to have been forced with some instrument. Within the room I found the coulter of a plough and two iron wedges, all of which I now observe upon the table. Every drawer in the room, except the money drawers, seemed to have been forced open. I immediately sent for Mr. Thomson, the accountant, and Mr. Pearson, the secretary, and both of them immediately came to the office. Mr. Thomson told me that he had about £17 in his desk, which he supposed was all gone, but he hoped that the money drawers were safe. The key of the money drawers was found amongst others lying in the desk.

Cross-examined by Mr. John Clerk, for George Smith—Mr. Dundas, was the Excise Office, when in Chessel’s Buildings, kept in one house or in two houses?

Witness—Principally in one house, but there was likewise another small house in which Mr. Broughton’s office, Mr. Dick’s office, and the Register of Seizures were kept; both houses were inclosed with an iron rail.

Janet Baxter

13. Janet Baxter, servant to Adam Pearson, assistant secretary of the Excise, called in and sworn.

Witness—I was out upon a message about eight o’clock at night on Wednesday, the 5th of March last, and, returning homewards, I met with an acquaintance, with whom I conversed for a little in the entry to Chessels’s Buildings, in which my master lived. I then went down the close, and on my way down I saw a man, dressed in a whitish great-coat and slouch hat, leaning over the rails at the entry to the court, and, judging him to be a light or suspicious person, I was afraid of him, and ran into my master’s house.

James Bonar

14. James Bonar, deputy-solicitor of Excise, Edinburgh, called in and sworn.

Witness—I recollect having occasion to call at the Excise Office upon Wednesday, the 5th of March last, about half-past eight in the evening, and as I thought it was probable that there might be still some person in the office, I went straight forward to the door without calling for the key, and finding the door on the latch, I opened it and went in. Just as I entered, a man, who appeared to be dressed in a black coat and cocked hat, stepped out. He seemed to be in a hurry, and I stepped aside to give way to him. He was a square-built man, and was rather taller than me. I took no suspicion, thinking it was some of the people belonging to the office, detained later than usual. I went upstairs to the solicitor’s office, and into the room in which I usually write. I remained there about ten minutes, came down again, and then went away. I saw no person either in the entry or the court as I came out.

Isobel Wilson

15. Isobel Wilson, spouse of Adam Robertson, wright in Duddingston, called in and sworn.

Examined by the Solicitor-General—Pray, madam, do you remember anything of two persons coming to your house in the month of March last?

Witness—I did not remember, at first, anything of the matter, but having afterwards seen John Brown

John Kinnear

16. John Kinnear, servant to the Earl of Abercorn at Duddingston, called in and sworn.

Witness—I recollect that the coulter of a plough with which I had been at work and two iron wedges were stolen from a field some time last spring, but whether in February or March I cannot say, only I recollect that there was then snow upon the ground. I loosed from work between two and three o’clock on the day on which the articles were stolen, and went to Edinburgh, and on my way thither, about four o’clock, I observed two men in blackish clothes standing upon the ploughed land by the plough to which the coulter belonged, and there was a black dog at some distance from them.[3] When I came to work next morning I found the coulter of the plough and the wedges had been taken away. [Here the coulter and the wedges referred to in the indictment were shown to the witness.] These are the coulter and wedges that were stolen from my plough.

Cross-examined by Mr. John Clerk, for George Smith—How do you come to know that?

Witness—I know this to be the same coulter, my attention being called to it from this circumstance particularly, that a short time before it was stolen it was sent to a smith, with instructions to sharpen it the whole length, that it might be fit for cutting the turf which was to be ploughed up. He did not observe these instructions, but returned it in the situation it is now in.

Grahame Campbell

17. Grahame Campbell, sometime servant to the pannel, George Smith, called in and sworn.

Witness—I was servant to the prisoner, George Smith, and I know the other prisoner, Mr. Brodie. I never heard of the Excise Office being broke until I was apprehended, along with my mistress and Andrew Ainslie, and committed to prison in the beginning of last spring. I have seen Mr. Brodie, and likewise Andrew Ainslie and John Brown, often in Mr. Smith’s house, and they were all very frequently there in company together. In particular I remember their being all there one night about the dusk of the evening, not long before I was apprehended, but as they were so frequently at my master’s house I cannot distinguish that night from any other, nor can I say at what hour they came, only I remember they were in a room above-stairs, and that Mr. Brodie passed through the shop and asked my mistress how she did to-night. Mr. Brodie was at this time in an old-fashioned black coat, and, to the best of my knowledge, I never saw him in the same dress before. I have seen him in other black clothes, but they were always of a newer fashion. My master, Smith, was upstairs with Brown and Ainslie, when Mr. Brodie came in and joined them. I do not know when they went out, as I was employed below-stairs in the back cellar; but I think they remained together a considerable time before they went out. I believe they all went out together, for when I went into the kitchen my mistress desired me to go upstairs to put the room in order and wipe down the table, which I did, and at that time all of them were gone. My master returned in something more than an hour, and said he had been seeing Mr. Maclean, who is Mr. Drysdale’s waiter. Mr. Ainslie had been in before him, but had gone out again, and Brown came in in quest of him, and also went out again. They both returned about ten or eleven o’clock, and Mr. Brodie then came back likewise. Mr. Brodie had on at this time the whitish clothes which he usually wore, and as he passed through the shop he again asked my mistress how she did to-night. I expressed my surprise to my mistress that Mr. Brodie should wear such a strange dress when he came in the first time in his old black clothes, and she answered that it was his frolick; but I took no notice to her afterwards of his having changed his dress. They all supped in the kitchen, except Mr. Brodie, who would not sit down, but walked up and down the room. Brown and Ainslie usually supped at my master’s. They remained together about two hours. Mr. Brodie went out first, and Mr. Brown and Mr. Ainslie soon thereafter, with an intention, as they first said, to go to bed. I think they said afterwards that they were going to play cards with Mr. Maclean. My master, George Smith, did not go out again that night.

Cross-examined by the Dean of Faculty, for Brodie—You have mentioned that Brown and Ainslie and the prisoners at the bar, when they first met, were a considerable while together. In what manner were they employed?

Witness—I was for the most part down below in the back cellar; but they had some bottles of porter together, and either a cold fowl or some herrings to eat.

The Dean of Faculty—You have said that Mr. Brodie and Brown and Ainslie were frequently in your master’s house. What did they do when together; did you ever see them play at any game—at cards or at dice?

Witness—I have often seen them play both at cards and at dice, sometimes in the kitchen and at others in the room above-stairs, but chiefly at dice, when Mr. Brodie was present.

The Lord Justice-Clerk—My Lord Advocate, is the witness now at liberty? I understand she has been detained in prison for some time past?

The Lord Advocate—There is no reason for detaining her any longer; she was only confined until her evidence should be given in this trial.

The Lord Justice-Clerk—Grahame Campbell, you are now at your liberty.

Mary Hubbart or Hubburt

18. Mary Hubbart or Hubburt was then called.

Mr. John Clerk, for Smith—My Lords, the witness now called is the wife of George Smith, the pannel at the bar, and therefore I object to her evidence being taken in this trial.

The Lord Advocate—My Lords, I certainly do not intend to examine this witness as to any particular that relates to the conduct of her husband, but I conceive that she is an unexceptionable witness against the other pannel, Mr. Brodie, and that I am entitled to examine her as to him, if I keep clear of any question that has a tendency to bring out the guilt of her husband.

Mr. John Clerk—My Lords, I desire your particular attention to this, that the two pannels are joined together in one indictment, that they are charged with being guilty of the same crime; and that they are in every respect in the same circumstances. I have no conception, my Lords, of any question tending to the crimination of Mr. Brodie that will not at the same time bring out the guilt of Mr. Smith.

The Lord Advocate—My Lords, that I may remove all apprehensions concerning the questions I mean to put, I shall only ask the witness whether Mr. Brodie was in her house on Wednesday, the 5th of March last; when he came there; and in what manner he was then dressed?

Lord Hailes—My Lords, it is clear that this woman cannot be examined as a witness against her husband; but at the same time, although her husband and Brodie are here tried upon one indictment, I see nothing to prevent my Lord Advocate from putting such questions to her as do not affect her own husband, but only the other pannel.

Lord Eskgrove—My Lords, I am of the opinion which has been delivered by my Lord Hailes.

Lord Stonefield—My Lords, I am of the same opinion.

Lord Swinton—My Lords, I agree with the opinion given.

The Lord Justice-Clerk—My Lords, there is no doubt that a wife cannot be received as a witness whether for or against her husband, and her situation is different by our law from that of all other near relations. If a son, for instance, is brought forward as a witness against his father, he may no doubt decline to bear testimony, and no Court of law can compel him to do so; but if he is willing to give his evidence it may be received. A wife, on the contrary, cannot be received as a witness, even though she be willing; a judge can pay no regard to what she says either for or against her husband; and, supposing she had no objection to give her testimony even to hang him, which might happen, it must be refused; therefore, my Lords, whatever this woman says that may infer guilt against her husband must be totally thrown out of consideration; nor will I suffer one single question to be put or her to say a single word from which his guilt can be inferred; and the jury are not to give any attention whatever to it, if it should happen that anything should drop to the prejudice of her husband.

Mr. John Clerk—My Lord Justice-Clerk—

The Lord Justice-Clerk—What! Mr. Clerk, would you insist on being heard after the Court have delivered their opinions? It is most indecent to attempt it.

Mr. John Clerk—I was heard, my Lord, on the general point of the admissibility of this witness, but not on the special objections which I have to the questions which my Lord Advocate proposes to put, and on which the Court have not delivered any opinion.

The Lord Justice-Clerk—Mr. Clerk, this is really intolerable.

The Dean of Faculty—My Lord, although as counsel for Mr. Brodie I am not entitled to be heard on this subject, I find myself called upon to interfere as Dean of Faculty. It is perhaps not strictly in order for Mr. Clerk to insist on being heard after your Lordships have delivered your opinions, but some indulgence ought to be shown to a young gentleman.

Lord Hailes—My Lord Justice-Clerk, though Mr. Clerk stated his objection generally, yet he did not enter into particulars, and I think he may be allowed now to state what particulars he meant to insist on.

The Lord Justice-Clerk—Mr. Clerk, we will hear what you have to say.

Mr. John Clerk—My Lord, I mean to offer a special objection to the interrogatory mentioned by my Lord Advocate, on which I have not yet been heard, nor do I understand that any opinion has been given respecting it by your Lordships. It is proposed to ask this woman what dress Mr. Brodie wore when in her husband’s house on the 5th of March last previous to the robbery of the Excise Office. I formerly observed, my Lords, that my client and Mr. Brodie are accused of the same crime, and are nearly in the same circumstances, and this is a question from the answer to which it may appear that Mr. Brodie was guilty of the robbery laid to his charge. But at the same time, my Lords, it will appear that Mr. Brodie was at the house of my client in a suspicious dress and in suspicious circumstances, and will it not be from thence concluded that my client was engaged with him in the very design which he at that time intended to put in execution? Such a presumption would likewise be most forcibly corroborated by their known intimacy, by their being frequently concerned in the same pursuits, and, above all, by the presence of the other two persons who are supposed to have committed this crime. I say, my Lords, on the supposition that Mr. Brodie is guilty, the circumstance of his dress is one of the strongest presumptions that can be figured against my client.

But, farther, my Lords, my client has an interest in preventing the conviction of Mr. Brodie; if his guilt is not proved an inference is afforded me of the innocence of my client, for Mr. Brodie being with my client so recently before the crime was committed presumes that they were employed in the same manner; and the suspicion against Mr. Brodie being groundless is an argument that the suspicion against my client is equally groundless. Now, my Lords, if this woman be examined her evidence may, though indirectly, tend to the crimination of her husband. And if the law does not allow the evidence of a wife to be taken against her husband, I cannot see that there is a good distinction between her evidence as taken directly and indirectly; and therefore, my Lords, I hope that your Lordships will sustain the objection.

The Lord Justice-Clerk—The Court will take care not to allow the witness to give any answer against her husband. But, as she is a good witness against Brodie, the Court cannot help it if, by establishing his guilt, a presumption thereby arises against Smith. I am therefore for repelling the objection.

The objection was repelled accordingly.

[The witness was then brought in.[4]]

Mr. Wight, for the pannel Brodie—My Lords, I must object to this witness upon another ground, and shall not take up the time of the Court any longer than simply to state the objection, which appears to me perfectly irresistible. The law of this country requires that the name and designation of every witness to be examined against the pannels should be intimated to them at least fifteen days before; but the name of the woman who now appears in Court is not to be found in the list of witnesses served upon the prisoner. There is indeed a “Mary Hubbart or Hubburt, wife of George Smith,” mentioned as a witness in the indictment, but the present is no such person; her name is perfectly different, being Mary Hibbutt, as appears by an extract of the parish register where she was born, which I now produce. The objection, therefore, of a misnomer applies in full force to this witness.

The Lord Advocate—This appears to me a very extraordinary and frivolous objection, for, even supposing the witness’s name is Hibbutt instead of Hubbart or Hubburt, still there could not possibly be any mistake as to the person, since she is designed the wife of George Smith, and it is not pretended that she is not the wife of that person. This woman emitted several declarations before the Sheriff; in some of them she is called Mary Hubbart and in others Mary Hubburt. At first she pretended she could not write, and the only declaration subscribed by her is signed Mary Smith; so that the prosecutors, who had no other opportunity of knowing her real name than from the declaration, were left altogether in the dark as to it. As the witness allowed herself to be called Hubbart or Hubburt in the declaration without challenge it is not competent for her now to deny it.

My Lords, it is of no sort of consequence in the present case that there has been a mistake of a letter or two in the witness’s name; it was perfectly unnecessary to have designed her in any other way than Mary Smith, wife to George Smith, and if that would have been sufficient, certainly an attempt

Lord Hailes.
(After Kay.)

to be more particular cannot have the effect of injuring the pannel, and therefore can be no valid objection against this witness.

The Dean of Faculty—My Lords, I cannot help considering this as a question of the greatest consequence, for if this objection is not sustained, then the objection of misnomer cannot have any longer effect, for if the change of a letter or two, as insisted on by the Lord Advocate, does not afford that objection, there can be no such thing as a misnomer, since the whole difference betwixt names consists only in change of letters.

I am free to admit that if this witness had only been libelled Mary Smith, wife of George Smith, particularly as she had subscribed her name Mary Smith, then there could not have been stated any objection to her examination. But as she is particularised to be Mary Hubbart, it is a sufficient objection to me that the name of the woman now present is not Mary Hubbart, but Mary Hibbutt, a perfectly different name. There still may be a mistake of the person although she is designed wife to George Smith, for it may happen that Smith may have two wives. There is not a greater difference betwixt Erskine and Friskin, which last name is not uncommon in this country, than betwixt Hubbart and Hibbutt. It is all one under what name she is mentioned in the precognition, as that was not her doing; neither is it probable that she knew by what name she was there called. My Lords, there has not been a witness examined here this day that can know by what name he has been taken down by the Clerk.

The Lord Advocate—My Lords, I beg that the witness may be desired to write her name.

The Lord Justice-Clerk—Mary Hubburt, you will sign your name.

[The witness signed her name accordingly.]

The Dean of Faculty—My Lord, the witness has subscribed her name “Hibbutt.”

Lord Hailes—The name of Hobart is the name of the very respectable family of Buckinghamshire, in England, and I would have supposed that this woman’s name, since it so nearly resembles it, was the same, and would not have taken her own word to the contrary. Hibbutt, nevertheless, is perfectly different from Hubbart, and, however obscure it might be, still, as it is proved by the parish register to be the name of the person now called, I consider myself obliged to give weight to the misnomer.

The Dean of Faculty—I beg pardon for interrupting the Court, but I am just informed that this point has been decided by Lord Eskgrove and Lord Stonefield at the Glasgow Circuit, where a misnomer of “James Roberton” instead of “James Robertson” was sustained. There, there was only the want of a letter, whereas there is certainly a much greater difference betwixt the names here in question.

Lord Eskgrove—As to the case mentioned by the Dean of Faculty, Robertson and Roberton are two perfectly distinct names. In the case before your Lordships there can be no doubt that if this woman had only been libelled as wife to George Smith, without her maiden name, there could have been no question whatever. It is the universal custom in England that the maiden name sinks into that of the husband’s, but my great difficulty is, in this case, that the public prosecutor, in giving this witness a further description than was necessary, has totally mistaken her name, I do not think that there is any force in her being called Hubbart in the precognition for the same reason given by the Dean.

[Here his Lordship was interrupted by the Lord Advocate.]

The Lord Advocate—My Lords, the circumstances which I meant to prove by the witness are so immaterial that I will give the Court no further trouble with the matter. I agree to pass from this witness.

Lord Eskgrove—I am very happy I am relieved from deciding it, as I was going to deliver an opinion for sustaining the objection.

The Lord Justice-Clerk—Mary Hibbutt, you are at liberty to go where you please.

Daniel Maclean

19. Daniel Maclean, waiter to William Drysdale, innkeeper in the New Town, called in and sworn.

Witness—On the night of Wednesday, the 5th of March, on which the Excise Office was broken into, I was in company with John Brown and Andrew Ainslie in the house of one Fraser in the New Town from about half-past nine to eleven o’clock at night; we drank some punch together, and there was one Price and some others in company with us. I remember to have received a five-pound bank-note from the prisoner, George Smith, on the next night after the Excise Office was broken into, in order to purchase a ticket in the mail-coach for his wife to Newcastle. The note was battered on the back. I carried it to John Clerk, Mr. Drysdale’s book-keeper, but he could not change it, and therefore I applied to Mr. Drysdale himself, and then carried back the change of the note, after deducting the price of the ticket, to Mr. Smith.

John Clerk

20. John Clerk, book-keeper to the before-mentioned William Drysdale, called in and sworn.

Witness—I remember that Daniel Maclean, Mr. Drysdale’s waiter, came to me the next night after the Excise Office was broken into for a ticket in the mail-coach to Newcastle for some person, and offered a five-pound bank-note in payment. I had not change myself, and therefore desired him to apply to Mr. Drysdale. He laid the bank-note upon the table, but I did not then look at it. Mr. Drysdale changed the note. On the Monday following I received it from Mr. Drysdale, with directions to carry it to the Sheriff-Clerk’s Office, which I did.

David Robertson

21. David Robertson, merchant in Edinburgh, called in and sworn.

Witness—I am a hardware merchant. I remember that Mr. Brodie, the prisoner at the bar, purchased a spring saw from me about eight or nine months ago. [Here one of the saws libelled on was shown to the witness.] This saw bears my shop mark, and it was such a one that I sold to Mr. Brodie. [The counsel for the pannels here repeated the objection against adducing the two spring saws, as mentioned in the general objection and interlocutor before taken down.] I have sold the same kind of saws to different persons. Cabinetmakers sometimes make use of such saws in the way of their business, but Mr. Brodie told me that the one he purchased was for cutting off the natural spurs of game-cocks. Some time afterwards another person, whom I do not know, came to my shop and purchased another spring saw; he asked for such a one as Mr. Brodie had bought. [Here the other saw was shown to the witness.] This saw also bears my shop mark, and it was such a one that I sold to the person I have already mentioned.

William Middleton

22. William Middleton, indweller in Edinburgh, called in and sworn.

Witness—I am in the employment of the Sheriff-Clerk’s Office. I have been acquainted with John Brown alias Humphry Moore for some time past, and I remember the robbing of the Excise Office. Brown came to me upon Friday, the 7th of March last, about eleven o’clock at night, and informed me that he wanted to make some discoveries concerning that robbery and the other late robberies which had been committed in this place. I desired him not to give me any information, but to keep his mind to himself, and I would take him to a person to whom he might communicate whatever he had to say. Accordingly I conducted him that same night to Mr. Scott, the Procurator-Fiscal, and afterwards, at his own desire, to the bottom of Salisbury Crags, where Brown pointed out a place in which we found a number of false keys under a large stone. These we brought to town with us to the Procurator-Fiscal’s house. The next day I was sent into England along with Brown in search of the goods belonging to Messrs. Inglis & Horner, silk mercers, which had been stolen from their shop; and Mr. Frier, a partner of that house, accompanied us.

The Dean of Faculty—My Lords, it is not proper that the witness should be allowed to speak of facts that have no relation to the present trial.

The Lord Justice-Clerk—William Middleton, you are to confine yourself to such facts as relate to or are immediately connected with the breaking into the Excise Office, which is the charge brought against the prisoners.

Witness—Upon Sunday, the 16th of March last, the prisoner, George Smith, was carried at his own desire to the bottom of Warriston’s Close,[5] and I accompanied him, along with Alexander Williamson and James Murray, sheriff-officers. Smith there pointed out a hole in a wall where a false key, a pair of curling irons, and a small iron crow were hid, which, he said, had been used in breaking open the Excise Office; whether they were covered with earth or not I cannot say, as the prisoner himself put in his hand and brought them out. [Here a false key, a pair of curling irons, and a small iron crow were shown the witness.] These are the same articles that were so found. [The counsel for the pannels here repeated the objection against adducing the iron crow, the curling irons or toupee tongs, and dark lanthorn, as mentioned in the general objection and interlocutor before taken down.] I was present at the search that was made in Smith’s house; there was nothing found in it. I was likewise present on the day following at a search that was made in Brodie’s house and yard, when one part of a dark lanthorn was found in a necessary house, and another part in a pen where fowls or game-cocks had been kept. [Here the dark lanthorn libelled on was shown to the witness.] These are the two parts of the dark lanthorn which were so found. The prisoner, George Smith, informed me that the small crow was used in breaking into the Excise Office.

Cross-examined by the Dean of Faculty—Did Brown inform you, previous to your going to England, that the prisoner, William Brodie, had any concern in the robbery of the Excise Office?

Witness—He told me that there was a gentleman whom I knew, and whom I little suspected, concerned in it, but he did not mention his name.

Alexander Williamson

23. Alexander Williamson, sheriff-officer in Edinburgh, called and sworn.

Witness—I was present, along with George Williamson and James Murray, when there was a search made in the house of William Brodie, the prisoner, upon the 10th of March last, and in the course of the said search I saw a pair of pistols wrapped in a black stocking taken from under the earth in the fireplace of a shed in his yard. [Here the pistols libelled on were shown to the witness wrapped in a green cloth.] These are the pistols, and they were found in that green cloth. [The counsel for the pannels here repeated the objection against adducing the pistols, as mentioned in the general objection and interlocutor before taken down.]

Cross-examined by the Dean of Faculty—How came you to say that they were found in a black stocking?

Witness—I saw a black stocking on the table, and that misled me.

The Dean of Faculty—You are to speak from what you know, sir, and not from what you see on the table.

Witness—I am certain that it was in a green cloth they were found.

James Murray

24. James Murray, sheriff-officer in Edinburgh, called in and sworn.

Witness—I was employed, along with Alexander Williamson and some others, to search the prisoner’s (William Brodie) house upon the 10th of March last. In the course of the search we found a pair of pistols in a green cloth covered with earth in the fireplace of a shed. I think that it was myself that dug them out of the earth. [Here the pistols libelled on were shown to the witness.] These are the pistols that were so found. I afterwards saw one part of the dark lanthorn found in a necessary house, and another part of a dark lanthorn found in a pen where game-cocks had been kept. I accompanied the other prisoner, George Smith, upon the 16th of March, to the bottom of Allan’s Close,[6] and he there pointed out a hole in a wall, where, he said, there were some articles hid. I put in my hand and brought out a false key, a pair of curling irons, and a small crow. [Here the articles formerly produced were shown to the witness.] These are the same that were so found.

Cross-examined by Mr. John Clerk—You say that you put in your hand and brought out these articles; are you sure it was not George Smith who did so?

Witness—I put in my hand; George Smith could not, being handcuffed.

George Williamson

25. George Williamson, messenger-at-arms in Edinburgh, called in and sworn.

Witness—I was employed with others to search the house of the prisoner, William Brodie, on the 10th of March last, and found several keys of an uncommon construction in a room off Brodie’s shop. We likewise found a pair of pistols wrapped in a green cloth under the earth in the fireplace of a shed in the woodyard. These were discovered by Smith, the prisoner, poking with an iron. [Pistols shown to witness.] These are the same that were so found. We also found several pick-locks in Mr. Brodie’s house, all of which were lodged by me in the Sheriff-Clerk’s Office. [Here the pick-locks were shown to witness.] These are the same pick-locks that were so found. [The counsel for the pannels here repeated the objection against adducing the pick-locks, as mentioned in the general objection and interlocutor before taken down.] I was sent in quest of Mr. Brodie, who was supposed to have gone to London, by Mr. Scott, the Procurator-Fiscal, upon the 11th of March last. I left Edinburgh about eleven o’clock at night. When I arrived at Dunbar I got some accounts of him; Mr. Brodie had left that place in a post-chaise. At Newcastle I was informed that he had taken the “Flying Mercury” post-coach to York; and I was afterwards informed that he had continued in it till he came to London. When I arrived in London I was informed by the coachman that Mr. Brodie did not go with the coach to the stage office, but that he had quitted it at the foot of Old Street, Moorfields. I waited upon Sir Sampson Wright, and at his desire I called upon Mr. Walker, solicitor-at-law in the Adelphi, and inquired for Mr. Brodie. He told me he was bad, and that I could not see him. I said I had a letter for him and wanted only to deliver it; but Mr. Walker replied that it might perhaps be dangerous to allow me to see him.[7]

The Dean of Faculty—My Lords, without meaning any reflection on the witness, whom I know and believe to be a very good man and an active officer, the greatest part of what the witness says is “hearsay.” He tells your Lordships that he was told one thing at Dunbar; that he received another piece of information at Newcastle; that a coachman told him so-and-so in London, and that Mr. Walker said this, that, and the other thing. My Lords, this is exceedingly improper. I have been taught to understand that in criminal trials the best evidence that can be got ought always to be brought; and surely it will not be pretended that that has been done in the present case. In a question of this kind, hearsay evidence is not admissible. The witness has said that he was informed so-and-so by coachmen; why were not these coachmen called as evidences? He has given you an account of a conversation that passed between him and Mr. Walker; why is not Mr. Walker brought here to speak for himself?

The Lord Advocate—My Lords, it was thought a material circumstance to be proved that the prisoner, William Brodie, fled from this country; that he secreted himself in London; and the witness, who was sent in pursuit of him, was considered as a proper person to be examined as to the fact. In the course of informing the Court what he himself did he has necessarily mentioned what passed between himself and some other persons. This cannot be said to have been hearsay evidence, being what the witness himself knows.

My Lords, the Dean of Faculty has asked why the different post-boys and coachmen who drove the prisoner to London, why Mr. Walker and others were not all cited as witnesses? The bringing forward of such a variety of witnesses is not only unnecessary but expensive. By the forms of criminal procedure in this country a trial must be finished at one sederunt; but, my Lords, if the mode contended for by the Dean of Faculty had been pursued in the present case this trial could not have been finished in a month.

The Lord Justice-Clerk—George Williamson, you will confine yourself to what you know or did yourself, and do not speak of what you were told by others.

Witness—I searched for the prisoner in London, but could not find him. I also went out to Deal and Dover, but could receive no intelligence of him. Accounts were afterwards brought to this place that he had been apprehended in Holland and brought to London. I went to London for him. He was delivered over to me at Tothilfields Bridewell, and I conducted him to this place and lodged him in the Tolbooth.[8]

Andrew Ainslie

The Solicitor-General—The next witness is Andrew Ainslie.

The Dean of Faculty—Before this witness is called I rise to state to the Court an objection against his admissibility. This witness is alleged to have been guilty of the same crime of which the pannels at the bar now stand accused, and therefore the objection of his being a socius criminis might apply to him. But although by our former law the objection of a witness being socius criminis might render him inadmissible, yet I have no occasion, nor is it my intention, to insist on the present objection in that view, for I freely own that the practice of this Court has for some time past, and with great propriety, I think, over-ruled that objection.

But, my Lords, I contend that this witness is inadmissible from the particular circumstances attending his case. For, according to the information which I have received, when this witness was apprehended and committed to prison, in the month of March last, to stand trial for this crime, he never charged Mr. Brodie as having been in any measure accessory thereto. On Ainslie’s first examination he positively affirmed that Mr. Brodie had no sort of accession to the crime of which he is now accused, or was concerned in any other bad action whatever to his knowledge, unless playing at cards and dice should be reckoned such; and in the different declarations which he made before the Sheriff he still persisted in denying that my client had any concern in this robbery. But after Mr. Brodie was apprehended and brought from Holland Ainslie was again brought before the Sheriff, when he was informed that either he himself must be hanged or he must accuse Mr. Brodie. Further, I am now instructed to say that when this witness was carried before the Sheriff his life was offered to him on his becoming King’s evidence against Mr. Brodie, and accusing him of having been concerned in this robbery, and that, even notwithstanding this offer, he persisted in denying that Mr. Brodie was guilty of this crime, until John Brown alias Humphry Moore, another of the witnesses cited, and alleged also to have been a socius criminis, was allowed to see and converse with him in prison, when at length he came into the measures proposed. I mean to say nothing against the conduct of the Sheriff, which may have been very proper—with the motives which may have influenced a public officer to a particular line of conduct I have nothing to do—but I state it as an insuperable bar to the admissibility of this witness, that hopes were suggested to him of saving his own life by criminating my client. And I offer to prove, by the evidence of the Sheriff of Edinburgh himself, that a bargain of this nature was made with Ainslie, and that it was not till then he was prevailed upon to say that Mr. Brodie had any concern in this crime. No man could withstand such a temptation, and it is impossible that the Court can receive the testimony of a witness in such circumstances.

The Lord Advocate—My Lords, I hardly expected that such an objection would have been made at this time, as it has long been the universal practice to admit socii criminis as evidence, and at the last trial in this Court such a witness was received without even an objection being stated. All the arguments on the other side could only affect the credibility of the witness, which properly belongs to the jury, and not the admissibility, which alone is before the Court. It is indeed true, and I am even surprised that the honourable counsel had not appealed to the authority, that Sir George Mackenzie has laid it down that socii criminis could not be admitted as evidence; but upon what principle of law or reason Sir George formed that opinion I could never discover. Sir George Mackenzie, indeed, is an author by whom I never was much instructed. He is often contradictory, always perplexed, and in many instances unintelligible. But even supposing the law had so stood in his time, the Court and the practice have long since deviated from it.

My Lords, the fact as stated by the Dean of Faculty is

Lord Eskgrove.
(After Kay.)

erroneous in every respect. For although Ainslie in his first declaration did not accuse Brodie or any other person, and denied all knowledge of the crime, yet in the second declaration which he emitted before the Sheriff on the 14th of March, which I now hold in my hand, and would read did the forms of the Court permit me to do so, he in the most express terms charges both Brodie and Smith as being equally concerned in the crime libelled. And, my Lords, it will not easily be believed—indeed, the thing is incredible—that so respectable an officer of the law as the Sheriff of Edinburgh would ever have entered into such stipulations with Ainslie. But even had such transaction taken place before any inferior judge or magistrate, still that cannot deprive the public prosecutor of the evidence of this witness, for it will not be said that any such transaction passed between him and the witness, and therefore the objection ought to be repelled, reserving the credibility of his evidence to the jury.

The Dean of Faculty—My Lords, I offer to prove my assertion.

The Lord Advocate—My Lords, I am willing, if the Dean of Faculty and the Court consent to it, to hold the second declaration, emitted long before Mr. Brodie was apprehended, as the evidence to be delivered by Ainslie on this occasion.

Lord Eskgrove—No transaction of any kind can possibly take place where life and death are concerned; and, therefore, even although the counsel on the other side consent to such a proposal, the Court would not allow it.

The Lord Justice-Clerk—Dean of Faculty, do you say that my Lord Advocate has made a corrupt bargain with the witness to accuse Mr. Brodie upon condition of receiving a pardon?

The Dean of Faculty—No, my Lord; but I repeat my offer to prove a bargain to that purpose with the Sheriff.

Lord Hailes—My Lords, the objection of socius criminis, if it ever was sustained in our law, has long since been obsolete. Nor can I understand how Sir George Mackenzie laid it down that socii criminis could not be admitted in evidence, since in his time we have instances of their having been actually received as witnesses. This assertion of Sir George Mackenzie’s is, like many others in the same work, founded neither on principle nor fact. But the Dean of Faculty’s objection amounts to a kind of reprobator against this witness. But even supposing that any credit could be given to the circumstances upon which this objection is principally founded, yet it could not affect the admissibility of this witness, as it is not pretended to be said that the alleged stipulation had taken place with the consent of the prosecutor for the Crown. I am therefore, upon the whole, for repelling the objection.

Lord Eskgrove—My Lords, there is no doubt that the objection of the witness being a socius criminis cannot be admitted in the present state of our law, whatever might have been done formerly. By the common practice, such witnesses are every day admitted; nor do I see how crimes of this nature could be discovered if a contrary practice were followed.

As to the special circumstances qualified by the Dean of Faculty, that a bargain was made by the Sheriff with Ainslie to procure him His Majesty’s pardon on condition of his accusing the pannel, I am likewise of opinion that these do not go to his admissibility. For your Lordships will observe that Ainslie cannot possibly be under any temptation now to accuse the pannel in consequence of that bargain. If I understand the law, my Lords, the calling any person as a witness on a trial is completely departing from any right to indict that person himself as being guilty of the crime concerning which he is called as a witness. Nor does it signify whether the pannel be convicted or not; it is clear that the witness can never be questioned for that crime; and Ainslie is quite safe from the consequences of his being accessory to the robbery of the Excise Office, if he was so. But, my Lords, it will be proper, before examining Mr. Ainslie, to inform him of his situation; and it will be proper, and the counsel for the pannels are entitled, to put such questions in initialibus of his evidence as will tend to satisfy your Lordships and the jury whether such a bargain had been entered into with him by the Sheriff or not, and how far he considers himself bound by it.

Lord Stonefield—My Lords, I am for repelling this objection.

Lord Swinton—My Lords, the objection made to the admitting of Andrew Ainslie is that he was an accomplice. I am clear to repel the objection in so far as it goes against the admissibility of the witness, but reserving it in full force, and leaving it to the conscience of the jury, in so far as it strikes against the credibility of the witness. In all my practice, ever since I knew this Court, although I have often heard the objection made, I never knew one instance in which it was sustained. If the jury were bound to believe every word a witness said, be his character what it may, there would be good reason for sustaining the objection, but where objections are reserved against the credibility of a witness, the jury are left at liberty to believe as much or as little of what he says as they see good cause for so doing.

The repelling of this objection, which is now the uniform practice, was founded upon good sense and reason, for as accomplices are best qualified to make discoveries, so, many crimes, were they excluded from being witnesses, would pass unpunished; and any hazard of their being guilty of perjury may be easily prevented by the Court’s informing them that the evidence they are to give cannot affect themselves.

The Lord Justice-Clerk—My Lords, were such an objection as this to be sustained, we would find very few instances, as one of your Lordships has very well observed, where a crime such as the present, of an occult and secret nature, could be brought to light. My Lords, as to the objection of the socius criminis, I will not say a single word upon it. I always thought, my Lords, that it contained in itself a complete answer, since the allegeance that the witness is a socius criminis implies that the pannel is guilty of the crime.

What is said by the Dean of Faculty about a supposed bargain betwixt the Sheriff of Edinburgh and Ainslie is by no means such an objection as affects his admissibility, although I will not say that his credibility may not be in some degree diminished by it; and the Dean of Faculty will be right in making his own use of it to the jury. Had the Dean of Faculty alleged that this bargain was corruptly made by my Lord Advocate, I could have understood him. But the Sheriff is only an inferior officer, and had no power to enter into any such transaction. Had he been ever so willing he could not have given Ainslie the smallest security that the terms and conditions of the bargain were to be fulfilled on the part of the Crown in consequence of Ainslie performing what was required of him. A higher authority was necessary, and none but the Lord Advocate himself could with any effect enter into an agreement with a witness to procure him His Majesty’s pardon for becoming King’s evidence. It is therefore not enough to say that offers were made him, whatever they were, by the Sheriff, and we must examine him, reserving all objections to his credibility.

The Court then pronounced the following interlocutor:—

The Lord Justice-Clerk and Lords Commissioners of Justiciary having considered the foregoing objections with the answers thereto, they repel the objections stated, and allow the witness to be examined, reserving the credibility of his evidence to the jury.

Robt. M‘Queen, I.P.D.

26. Andrew Ainslie, sometime shoemaker in Edinburgh, present prisoner in the Tolbooth of Canongate of Edinburgh, called in and sworn.

The Lord Justice-Clerk—Andrew Ainslie, you are called here as a witness to give evidence as to certain matters in which it is generally understood you yourself had a concern. You are informed by the Court that whether you had any such concern or not you are in no danger in telling the truth, for, being called here as a witness, you can never afterwards be tried for the crime with which the prisoners are charged. You are to pay no regard to the declarations you formerly emitted; these are now destroyed. And you will remember that by the great oath you have sworn you are bound to tell the truth, and if you say anything to the prejudice of the prisoners which is not true, or if you conceal any part of the truth with a view to favour them, you will be guilty of the crime of perjury, and liable to be tried and punished for it, and you will likewise commit a heinous sin in the sight of God, and thereby endanger the eternal salvation of your own soul.

Witness—I am acquainted with both William Brodie and George Smith, the prisoners at the bar, and also with John Brown alias Humphry Moore. I remember that the Excise Office was broke into upon Wednesday, the 5th of March last. I knew before that that it was to be broken into, but how long I cannot tell. Brown and the prisoners and I frequently talked of it before, and Brown and I went often to the Excise Office in the evenings in order to observe at what hour the people left it, and in consequence of repeated observations we discovered that the door was usually locked about eight o’clock, and that there were two men, an old and a younger man, who came night about to watch the office about ten o’clock. Afterwards Brown and I went out one afternoon to a house at Duddingston, where we drank a bottle of porter, and saw a woman whom I took to be the landlady. We then went to a field in the neighbourhood, from which we took the coulter of a plough and two iron wedges, which we carried to the Salisbury Crags and hid there. At this time there was a black dog in company with us. We had fixed on Wednesday, the 5th of March, for committing the said robbery, and we allowed the coulter to remain in Salisbury Crags until about six o’clock of the evening of that day, when Brown and I, it being then dusk, went out and brought the coulter of the plough to the house of the prisoner, George Smith, on purpose to use it in breaking into the Excise Office. We found Smith at home, and we expected Mr. Brodie to join us and to accompany us to the Excise Office. Brodie did not come until a good while after, when he joined us in the room above-stairs in Smith’s house. Mr. Brodie was at this time dressed in a light-coloured great-coat, with black clothes below (in which I had often seen him before), and a cocked hat. When he came in he had a pistol in his hand, and was singing a verse of what I understood to be a flash song. By a flash song I mean a highwayman’s song. We spoke together concerning the Excise Office; and it was settled upon that I should go before to the Excise Office and get within the rails and observe when the people went out. I went there accordingly a little before eight o’clock, carrying the coulter of the plough with me, and waited till I saw the porter come out with a light and lock the outer door. In a short while thereafter Smith came to me and asked if the people were all gone, and when I informed him that they were gone out Smith then went forward and opened the door with a key, which, I had heard him say, he had previously made for it, and went into the office. In about five minutes thereafter Brodie came down the close, and when I told him that Smith had gone in, but that Brown was not yet come, he went up the close again towards the street, and returned in a little with Brown, who said he had been dogging the old man who watched the office in order to see where he went, and that he had gone home. Brown then asked me whether or not I had “Great Samuel”—by which he meant the coulter. I told him I had, and gave it him through the rails, and he and Brodie then went down towards the door of the office and went in, as I supposed. I had no arms myself, excepting a stick, but Smith had three loaded pistols, Brown two, and Brodie one; at least, I saw Brodie, when he came into Smith’s house, have one in his hand. It had been previously settled amongst us, before leaving Smith’s house, that Brodie was to stand in the inside of the outer door, and that Brown and Smith were to go into the office. I was to remain without to watch, and in case of danger, to give an alarm to Brodie, which Brodie was to communicate to Brown and Smith. The signal of alarm agreed upon was to be given by me in this manner—A single whistle if one man appeared, so that they might be prepared to secure him; but if more than one man, or any appearance of danger, I was to give three whistles, in order that those within might make their escape by the door or by the back windows, as they thought best. I had an ivory whistle prepared for the purpose, which was given me by Mr. Brodie in Smith’s house in the afternoon. I took my station within the rail and leaned down, so that no person either going in or coming out could see me. Some short while after Brodie and Brown went into the office, a man came running down the close and went in also. I gave no alarm, for before I had time to think what I should do another man came immediately running out at the door and went up the court. In a very little afterwards, to my great surprise, a second man came out from the office. I got up and looked at him through the rails, and perceived that he was none of my three companions. I had not seen the other man who came out first so distinctly, owing to my lying down by the side of the parapet wall on which the rail is placed, in order that I might not be observed. I was afraid that we were discovered; and, as soon as the second man had gone up the close, I gave the alarm by three whistles as the agreed-on signal of retreat and ran up the close myself. I went down St. John’s Street and came round opposite to the back of the Excise Office, thinking to meet my companions coming out by the back way, having escaped from the windows. I remained there for some little time, and, not meeting with them, I then went directly to Smith’s house. Finding none of them there, and Mrs. Smith telling me that they were not yet come in, I went back to the Excise Office by the street, went down the close, saw the door open, and, finding everything quiet, I returned to Smith’s, where I saw him and Brown. They accused me of not having given the alarm as I promised, and said that when they came out they found that Brodie had gone from his place. I told them what I had observed, and that I had given the alarm. I remained in Smith’s only a few minutes, and I did not see Brodie again that night.[9] Brown and I then went over to the house of one Fraser in the New Town, and sent for Daniel Maclean, Mr. Drysdale’s waiter. We spent the evening with him there. There was one Price likewise in company with us, and we remained together till about two o’clock in the morning. It was near eight o’clock when I went first to the Excise Office, and it was about half-an-hour afterwards that I quitted my station. Brodie called next morning at our room—the room occupied by Brown and me. He came in laughing, and said that he had been with Smith, who had accused him of running away the previous evening. I told him that I also thought he had run off; but he said that he had stood true. Brodie had no great-coat on when he came to the Excise Office and spoke to me at the rails; he was dressed in black. When the whistle was given me by him in Smith’s house in the afternoon Brodie had on the white-coloured clothes which he usually wore. He afterwards changed them before we went to the Excise Office. Before I left Smith’s I saw Brodie have a pick-lock in his hands, and I think we all had it in our hands looking at it. Brodie was in his own hair. I did not observe him have a wig. We had prepared three crapes to disguise our faces; one of them was intended for Brown, another for Smith, and the remaining one for myself, but I did not see either Brown or Smith put a crape in their pockets that night. [Here the pistols libelled on were shown to the witness.] These pistols belonged to Mr. Brodie, and Smith had them with him at the Excise Office. They were given to him by me, and I had borrowed them from Mr. Brodie a month or two before for another purpose. That same evening Brown told me, as we went over to the New Town, that they had found sixteen pounds and some silver in the Excise Office; and on the Friday evening following, when I called at Smith’s house, in the room above stairs I found Smith and Brodie, and saw the money lying on a chair. I got a fourth share of it in small notes, and at the same time I got some gold from Mr. Brodie in payment of money he owed me. Brodie and Smith also each got a fourth share of it. There were two five-pound notes amongst the money that was on the chair, and I signified a desire to have one of them. I accordingly gave back some of the small notes I had received and some of the gold and got one of them in exchange. I afterwards gave the note to Smith, and saw him change it at Drysdale’s in the New Town the same evening, when he was purchasing a ticket for his wife in the mail-coach to Newcastle for the next day.[10] Brown and one Price were then present.

The Solicitor-General—Have you any particular mark by which you could know the said note again?

Witness—It was a Glasgow note, and battered on the back with paper.

[Here the Solicitor-General proposed to show the witness the bank-note libelled on.]

The Dean of Faculty—My Lords, here I must interrupt the witness. It is stated in the libel that a five-pound bank-note is to be produced in evidence against the pannels; but the witness says that the note given him to change was a Glasgow five-pound note, and the paper on your Lordship’s table is a promissory note for five pounds issued by John Robertson in name of Spiers, Murdoch & Company, a private banking company in Glasgow. This cannot in propriety of language be termed a bank-note. In Lombard Street, where such notes as that on the table are daily negotiated, they never think of calling them bank-notes. This term, my Lords, is exclusively appropriated to the notes issued by a bank constituted by a Royal Charter, such as the Bank of England, and the notes of a private banker are distinguished by the name of banker’s notes. Neither does such a note come under the description of money, as it is not a legal tender in payment. I hold in my hand this objection in writing, which, to save the time of the Court, I shall read, and I crave that it may be entered on the record.

The Solicitor-General—This objection appears to me to be so entirely frivolous as hardly to be worthy of an answer. The note in question is one issued by a very respectable banking company in Glasgow, and well known in this country by the name of the Glasgow Arms Bank. Such notes are commonly held to be bank-notes, and are so described in common language every day. Many instances might likewise be given of their being described in the same manner in criminal indictments, nor was it ever before objected that the description was insufficient. We need not go so far off as Lombard Street; there is no necessity for going further than the Parliament Close, where thousands of these notes are issued, known by no other name than that of bank-notes. The honourable counsel on the other side of the table, as well as myself, have received the greatest part of our fees in bank-notes of this kind, and both of us would have reason to complain, I believe, if what we received in that manner were not really bank-notes or considered as money.

The Dean of Faculty—My Lords, the common use of language, as well as the technical and legal description of the writing on the table, join in supporting this objection. That there is a distinction in common phrase between a bank-note and a banker’s note there can be no doubt. Every private company which is instituted with a view to the purposes of banking may indeed issue promissory notes, which meet with a voluntary credit from the country; but these are distinguished from the public banks instituted by the authority of Government, and where credit does not depend upon the goodwill of any individual, as every man must accept in payment their notes when tendered to him. These notes are alone properly termed bank-notes as the notes of a bank which is a public corporation, while the notes of a private company are termed banker’s notes, or those of an individual. Although the one may, in common discourse, be sometimes confounded with the other by those who are ignorant of the real distinction, there is no doubt that that distinction exists and is acknowledged by any one acquainted with the subject; and where they are best acquainted with it there the distinction is most explicitly acknowledged, as in Lombard Street, where no other term is known for the note of a private banker than a banker’s note. The inaccuracy of the description in the indictment is therefore evident, and can by no means be defended by the vulgar error which sometimes, I admit, is fallen into of confounding it with the note of a public bank.

My Lords, it will be allowed me that accuracy is at least as necessary for an indictment as to proceedings in the civil Courts; and your Lordships cannot have forgotten the late decision upon the application of the Bankrupt Act, when it was found that money belonging to creditors could not be lodged in the Bank of Dundee, in respect, the Act declares, that the bankrupt funds recovered should be lodged in a bank. And if the Bank of Dundee, my Lords, was held in that judgment not to be a bank under the meaning of the Act, with what propriety could your Lordships determine in a criminal case that their notes were bank-notes? No case can be figured more precisely in point; and if your Lordships approve of that decision, you will necessarily find that the note on the table is improperly described, and cannot be used in evidence.

I might safely admit, my Lords, that if this note had been described as a five-pound bank-note of a certain company, supposing it had been a bank-note of Sir William Forbes & Company, that this would have been a good description, for then it would have appeared by the indictment that the writing meant was a promissory note of that company. But from its being termed generally a bank-note, I could never suppose that it was not a note issued by one of the public banks, as that is the description that applies to no other species of document known in this country. For these reasons I hope your Lordships will not allow any questions concerning this paper to be put to the witness.

Lord Hailes—When I had the honour to serve the Crown as a depute-advocate, I learned from a most eminent judge, Lord Tinwald, Justice-Clerk, from whom I derived much instruction in the principles of law, that the note of a private banking company could not be termed in law a bank-note, nor could it be considered in any respect as money. On one occasion he obliged me to correct an indictment where I had fallen into the same error which I perceive here. The word bank-note, in legal acceptation, is applied exclusively to the notes issued by a bank instituted by Royal Charter, and I remember well the case alluded to by the Dean of Faculty, which was determined on the same principles. I am therefore clear for sustaining the objection.

Lord Eskgrove—My Lords, I am clearly of the opinion that has been given by my honourable brother. The promissory note of a private banking company is not held in the language of our law to be a bank-note, and therefore I am for sustaining the objection.

The Lord Justice-Clerk—I suppose there are none of your Lordships of a different opinion? The Lords therefore sustain the objection.

The Court then pronounced the following interlocutor:—

The Lord Justice-Clerk and Lords Commissioners of Justiciary having considered the objection, with the answers thereto, they sustain the objection to this piece of evidence libelled on, and refuse to allow the same to be produced.

Robt. M‘Queen, I.P.D.

[Here the witness was shown a false key, a pair of curling irons, a small iron crow, and the coulter of a plough.]

Witness—I know these articles; they were all used in the breaking into the Excise Office. The coulter we called “Great Samuel,” and the iron crow, “Little Samuel.” When I gave the coulter to Brown through the rails at the Excise Office he asked me if I had “Little Samuel,” and I said that I believed that Smith had it in his pocket.

Lord Hailes—Andrew Ainslie, you gave an account of this matter formerly before the Sheriff; but you have been very properly told by the Court that what you said there is now of no avail, and that your declarations are destroyed. You have this night, in presence of the Court and the jury, given evidence against the prisoners at the bar. Before you leave the Court, I desire you to consult your own breast whether or not you have said anything to the prejudice of these men that is not true. You have it still in your power to correct any mistakes you have made, but this opportunity will never recur to you. If, therefore, you are conscious of having said anything against the prisoners contrary to truth, and if you leave this house without informing the Court and the jury of you having done so, you will commit a most heinous offence against the Almighty God, and you will be guilty of perjury and of murder.

Cross-examined by the Dean of Faculty—At what hour went you first to the Excise Office on the night in which you say it was broke into?

Witness—I left Smith’s house about a quarter before eight o’clock; I went away before the rest.

The Dean of Faculty—What o’clock was it when you returned the last time to Smith’s that evening?

Witness—I cannot say, but I think it would be about an hour from the time I went first to the Excise Office.

The Dean of Faculty—How long were you at the Excise Office before Brodie came to you?

Witness—About a quarter of an hour; he came to the Excise Office just about eight o’clock.

The Dean of Faculty—You have said that you had resolved to break into the Excise Office a considerable while before you carried that design into execution, and you have told us that it was broke into upon a Wednesday night? Now, you will inform the Court and the gentlemen of the jury what your reason was for fixing upon that night more than any other?

Witness—Brown and I having seen, in consequence of frequent observations, that an old man watched night about with the other porter, and knowing that it was his turn to watch on Wednesday night, we therefore fixed upon that night for carrying our design into execution. We knew that there was usually nobody in the office from eight to ten o’clock for the purpose of watching it. I do not remember who it was that first proposed robbing the Excise Office.

John Brown

27. John Brown alias Humphry Moore, sometime residing in Edinburgh, present prisoner in the Tolbooth of Canongate of Edinburgh, called.

Mr. Wight, for the pannel, William Brodie—My Lords, before this witness, who is also a socius criminis, is called in, I have to object to his being received as a witness upon grounds which, I imagine, are insuperable. This man, my Lords, was convicted at the General Quarter Sessions for the county of Middlesex, by the verdict of a jury, of stealing twenty-one guineas and fourteen doubloons, in consequence of which he was adjudged to be transported beyond the seas for the term of seven years, in April, 1784, and this is instantly instructed by a copy of the said conviction, under the hand of the proper officer, now produced; and further, the witness, under the name of John Brown, was banished by the Justices of Peace for Stirlingshire from that county in September, 1787, upon his confessing a theft committed at Falkirk, as appears from a certified copy of the said sentence under the hand of the Clerk of the Peace of the said shire. I shall not take up your Lordships’ time in proving that a man thus infamous is altogether inadmissible as a witness in any cause, especially where life is concerned, and I have no doubt that your Lordships will sustain the objection.

The Solicitor-General—My Lords, in answer to this objection, I here produce His Majesty’s most gracious pardon in behalf of this witness, under the Great Seal of England, dated 28th July last, which, by the law of England, renders the witness habile and testable.

Mr. Wight—The production of this pardon, my Lords, will by no means answer the objection which I have stated. The infamy attending the commission of the crimes of which Brown has been convicted is not, cannot be, done away by the King’s pardon. He still remains a man unworthy of credit, in whom the gentlemen of the jury can place no confidence. His situation, in short, is just the same as it was before the granting of the pardon, unless that the pardon saves him from the punishment awarded against his crimes. This doctrine is delivered by Sir George Mackenzie in very strong terms, and it is the doctrine of common sense.

[During this time some desultory conversation took place about what was the felony for which Brown was sentenced, the Lord Advocate saying it was only swindling.[11]]

The Lord Advocate—My Lords, as to the sentence against Brown, supposed to have been pronounced by the Justices of Peace for Stirlingshire, it does not appear with certainty, nor do I know whether Brown, the witness, be the same person who was the subject of that sentence or not, as the certified copy of the sentence of banishment produced is against one John Brown from Ireland. I admit, my Lords, that if he had been tried by a proper Court and convicted in consequence of the verdict of a jury that the objection would have been a very good one; but the sentence of the Justices of Peace here produced cannot afford an objection which your Lordships can sustain in bar of his evidence. Granting him to be the same person, there is here no trial or verdict of a jury. It appears that a petition was presented for him to avoid the trouble of a trial, and the Clerk of Court has most improperly taken down an acknowledgment of his guilt. There was no occasion for his accusing himself, it was sufficient for him to state that he wished to avoid the consequences of a trial; and therefore, my Lords, this sentence can in no view of the matter be held to infer his actual guilt of the crime laid to his charge before the Justices. My Lords, I admit in the fullest manner the effect of the first sentence against Brown for the felony, but I maintain that it is completely taken off by the subsequent pardon.

I do not reckon myself obliged to answer to the general objection of socius criminis: that is fully answered by the practice and the uniform course of your Lordships’ decisions. A specialty was argued in the case of Ainslie; but this witness is in a situation very different. He never was charged with this crime, nor was he ever liable to the temptation which it was alleged, for the pannels, might have influenced the former witness.

My Lords, many daring robberies have been committed in this city, and, in spite of the utmost vigilance of the police, no discovery could be made of the perpetrators. At length, upon the Friday after the robbery of the Excise Office, Brown went to Mr. Middleton, a person employed by the Sheriff, and told him such circumstances as led to a discovery. From this, my Lords, I am bound to suppose that he had repented of what he had done, and I conceived it to be my duty not to prosecute him, but, on the contrary, to make use of his evidence as a means of discovery of the rest of his accomplices. After this, my Lords, it was found that he had been convicted at the Old Bailey. I then applied for advice to those whom I thought were best enabled to assist me concerning the law of England on this subject, and I learned, my Lords, that the proper method to be followed was to apply for a pardon. There is no occasion for making a mystery of the matter, it was the Recorder of London I did apply to. He is a gentleman necessarily more versant in these matters than any other man in the kingdom. By his advice, I applied for a pardon and accordingly obtained it.

But, my Lords, there was no occasion for a pardon in this case; the witness, in my opinion, would have been just as admissible without it. The sentence by which he was condemned is to us entirely a foreign sentence, and, therefore, upon the universally received principle of law, that statuta non obligant extra territorium statuentis, it can be of no force with us, unless from that politeness, termed comitas by the law, which civilised nations pay to the decrees of each other, and, accordingly, unless your Lordships shall, ex comitate, be disposed to give effect to the decree of a foreign Court, this objection is such as cannot even be listened to in the first instance, the crime said to be committed by Brown having been committed in England, and the sentence pronounced against him being the sentence of an English Court.

My Lords, your Lordships in another capacity, in the civil Court, do not as a matter of course give effect to foreign decrees. In every instance you must be satisfied that the decree is consistent with equity and justice before you interpone your authority. And this holds more particularly in such decrees as infer a penalty, in which case, indeed, some lawyers think, and my Lord Kames declares himself to be clearly of that opinion, that no weight whatever is attached to a foreign decree.

But, my Lords, even laying this out of the question, His Majesty’s most gracious pardon, which I hold in my hand, puts an end to all objection at once. There is not, indeed, a clearer point than that a pardon from the King takes away the effects of any former sentence, and makes the person pardoned precisely the same person he was before the sentence was pronounced against him.

This question must be judged of according to the law of England, and English authorities are express to this purpose. Thus Blackstone, B. iv. ch. 31, in fine says, “The effect of such pardon by the King is to make the offender a new man, to acquit him of all corporeal penalties and forfeitures annexed to that offence for which he obtains his pardon, and not so much to restore his former as to give him a new credit and capacity.” And another authority, my Lords, equally respectable—I mean Bacon’s Abridgment, p. 809—lays down exactly the same doctrine. This witness, therefore, is and must be admissible, notwithstanding the sentence pronounced against him. He has a new credit and capacity given him by this pardon, which enables him to be adduced as a witness, whatever may have been his character previous to obtaining it.

The authority of Sir George Mackenzie has, indeed, been stated as in opposition to this argument. But things have varied so much since his days, and his opinions are frequently so loose and confused, that no weight can be given to his opinion in opposition to such direct and recent authorities as I have quoted. It is perhaps no great authority, my Lords; but I hold a newspaper in my hand, from which it would appear that a case in England exactly in point was determined in July last in consistency with the authorities I have mentioned; and another case in the year 1782 was determined in the same manner.

As to the sentence of the Justices of Peace, I confess I was surprised, my Lords, that the counsel on the other side of the bar should have urged it, when in so late a case as that of Brown and Wilson, in the year 1774, your Lordships found that a sentence of the Justices of Peace was no bar against the admissibility of a witness, nor any sentence which proceeded without a jury. I therefore sit down, my Lords, in the full conviction that your Lordships will over-rule the objection against this witness.

The Dean of Faculty—My Lords, this case, so far as I know, has never yet been decided by your Lordships. The witness is in a new situation, and in one so extraordinary that it well deserves your Lordships’ serious consideration, whether he ought, in law or in common justice to the pannels, to be allowed to give evidence. My Lord Advocate is mistaken in saying that Brown was not under the same apprehension with Ainslie when he accused the pannels; for I cannot conceive that any man could have better ground than he to be afraid of the justice of his country; and certainly no man ever spoke under more strong and immediate fears of a halter.

When he made his confession he was under sentence of death, at least he knew well that he was liable to a capital conviction for not having transported himself conformable to the sentence at the Old Bailey. He knew that a pardon was necessary to preserve his life, and that it was impossible for him to remain in safety without it in this country. The game he played, therefore, was very evident—he did not accuse Mr. Brodie at first, and gave no information whatever but against the pannel Smith. My Lords, was it unnatural for a man of his complexion in such circumstances to have recourse to fiction? Accordingly, whenever Mr. Brodie was taken, a strong accusation against him was for the first time made by Brown, and this pardon was the immediate consequence. Let your Lordships reflect upon the whole of his conduct; let the jury take it into their most serious consideration; and I will aver that no evidence was ever offered under more suspicious circumstances.

The effect of the pardon, my Lords, is another point, and it is one which involves the most important consequences.

It is admitted on the other side of the bar, and, indeed, without their admission it is in evidence, that this man John Brown or Humphry Moore was sentenced to transportation by the Courts in England for a felony. It is not denied that a sentence of this nature precludes of itself the admissibility of that person as a witness against whom it is awarded, but it is said that this sentence is a foreign decree, to which we are not bound to pay any respect.

My Lords, are not the Courts of this country in the practice every day of paying respect to foreign decrees? It is true that the decrees of foreign Courts receive effect in this country only ex comitate. But it is nothing to me upon what principle the Courts here give effect to such decrees, if effect be really given. And that such respect is paid to foreign decrees, unless where they are contrary to our own law, is a position which no man will contest. To what purpose, then, is it stated, that this is the sentence of a foreign Court, unless it be stated at the same time that it is a sentence which your Lordships would not have pronounced in the same circumstances? The crime of which Brown was convicted is equally punishable in both parts of this island, and the effects of the sentence following upon the crime must, therefore, upon the universal principles by which all nations are now guided, be the same in both parts of the island also. The objection, then, that the decree is foreign, cannot be listened to by your Lordships without overturning those settled maxims by which your decisions, both in this Court and in another Court where all your Lordships sit, are constantly directed.

But His Majesty’s pardon, it is said—this pardon now produced to your Lordships, and obtained for the sole purpose of endeavouring to enable this man to be a witness—has now placed him in the same situation as if he had never been condemned.

My Lords, I have heard it said that the King could make a peer, but that he could not make a gentleman; I am sure that he cannot make a rogue an honest man. This pardon, therefore, at the utmost can only avert the punishment which follows from the sentence. It cannot remove the guilt of this man, though it may save his life. Can it, indeed, my Lords, be supposed that this amiable prerogative, lodged in the hands of the King for the wisest of purposes, and to be exerted by him as the father of his people, should have the effect to let loose persons upon society, as honest, respectable men, as men who may be witnesses, who may be jurymen, and may decide upon your lives or my life to-morrow, although these very persons were yesterday in the eye of the law and the eye of reason held as hardened villains from whom no man was safe, considered as wretches guilty of, and fitted to, perpetrate the most abominable crimes; and that although every man knows them to be the same as they were, and is equally afraid of, and would as little trust them as before they obtained a remission of their crimes?

My Lord Advocate has talked of their obtaining a new credit by the pardon. What is this, my Lords? Can it be a new credit to cheat and rob and plunder? Is this pardon to operate like a settlement in a banker’s books, when he opens a new credit upon the next page, after old scores are cleared off? My Lords, it is impossible. To suppose a pardon to have such effects is to suppose it the most unjustifiable of all things.

My Lords, I am willing to allow that this pardon should have every consequence beneficial to Mr. Brown; that he should derive all the benefit from it which the pardon itself expressly declares to be competent to him, and that no part of the punishment to which he was liable before this extension of His Majesty’s clemency can now be inflicted upon him. But this is very different from the proposition, that he is a good evidence in this or any other cause; it is no part of his punishment that he is not allowed to swear away the life of his neighbour; on the contrary, it is rather a favour to him. That he is intestable was never a punishment even before the pardon was granted; it is only a consequence of the sentence for a crime of an infamous nature which fixes an indelible character upon him, and describes him as a man whose testimony is worthy of no regard; and that character is no more removed by the pardon than the original truth and authenticity of the evidence upon which he was convicted is falsified by it; on the contrary, the pardon contains in itself the most unexceptionable evidence of the guilt and infamy of the person who is obliged to plead it.

Authorities have been quoted on the other side of the bar, but they are not the authorities of our law. The authority of Sir George Mackenzie is expressly in their teeth. This is the second time to-day, my Lords, that I have heard this respectable writer talked lightly of. I cannot but express my surprise at it. He was undoubtedly a man of the highest abilities, and he is our only criminal lawyer. I think he is the most intelligible and clear of all our writers, and I have read him with great profit. But his authority is to be held light in this matter, because his opinion is decisive in favour of this objection—an opinion which, though it were not delivered by such high authority in our law, is yet so much in unison with the common reason and common feelings of mankind that I should deem it to require no other support.

The sentence of the Justices of Peace of Stirlingshire, it has been said, forms no objection to the admissibility of this witness, because it was pronounced without a jury, as all their sentences are. My Lords, this is not the reason. Sorry I am to say that, by a decision of your Lordships, magistrates of burghs and Sheriffs of counties have been found entitled to whip and imprison British subjects without a jury. But will it be maintained that persons so punished will not be accounted infamous and their testimony rejected?

My Lords, the reason why the sentence of the Justices of Peace was held not to bar the admissibility of a witness was because they are not a Court of record, and your Lordships could not be legally certified of what was their judgment. Could this information have been legally obtained the infamia facti would have been sustained as sufficient without the infamia juris.

A man is equally infamous in either case if his punishment is merited. And why is infamia facti not always admitted in our law as a sufficient bar, but merely because all objections to witnesses must be instantly verified, which would produce an infinite number of trials within trials, and, besides, which is far worse, would be trying a man without a libel, without allowing him time to produce witnesses, and without a jury. But the infamia facti, if proved—and in this case the proof is beyond dispute—is equally strong to render a witness inadmissible as any infamia juris. For it is not merely the sentence of a Court which makes a man intestable, but the fact that he is a villain. And this is an additional proof that His Majesty’s pardon, which undoubtedly does not justify the act, though it saves the actor, cannot take away the infamy attendant upon the crime of which he stands convicted.

But the matter does not end here. My Lords, supposing that His Majesty really had this incomprehensible prerogative of changing, by a sheet of parchment, a corrupt and dishonest heart, and cleansing it from all its impurities, I still maintain that it has not been exercised. Where is the clause in this pardon restoring Brown to his character and integrity? You have heard the pardon read, and there is no clause in it to that effect. He is screened against punishment and every effect of a prosecution; but it would have required a very express clause indeed to give the pardon the additional force of removing the infamy of his sentence, and surely the warmest advocates for prerogative cannot be offended at its being said that the King must exercise that prerogative before its power can be felt.

My Lords, I shall trouble you with nothing farther upon this subject, which appears to me very clear. The sentence of the English Court is no more foreign than those to which the Courts of Scotland give effect every day. It is such a sentence as your Lordships would have pronounced had the crime been committed in this country. His Majesty’s pardon cannot, by our law, restore this man from the infamy annexed to this sentence, and common reason tells us that it is beyond the power of kings, because it is beyond the power of man, to reinstate a man in his original integrity by their fiat.

Lord Hailes—My Lords, the Dean of Faculty has done more for Sir George Mackenzie than I was ever able to do, though I studied him before the Dean of Faculty was born. Sir George Mackenzie’s work on the criminal law is a medley of opinions formed from the civilians, with what occurred in his own practice, and desultory observations upon them. He is exceedingly inaccurate. He mentions, for instance, an Act of Sederunt which has no existence, and in many other instances talks equally loosely.

With regard to the present objection, my Lords, it is clear that the decree is foreign. By the articles of the Union, our own laws and forms of procedure are secured to us, and we have as little connection with those of England as with the laws of Japan, being as little bound to obey them. At the same time there is always a comitas to foreign decrees, where not inconsistent with our own law. Here, however, there is no necessity to enter into this question, as the sentence in this case is superseded by the pardon. The sentence of the Justices of Peace weighs nothing with me. No such sentence ought ever to render a witness inadmissible, for Justices of Peace are always ready enough to banish a man who is accused from their own territory. I am therefore for repelling the objection.

Lord Eskgrove—My Lords, I think this a matter of very great importance. I am clearly of opinion that it is beyond the prerogative of the Crown to render a person capable of being a witness by granting him a pardon. I know no such prerogative.

But, my Lords, the decree here is a foreign decree, and in judging of it we must consider the law of the country where it was pronounced, and from the authorities, my Lords, which have been quoted, it appears that a pardon in England does take off the whole consequence of the sentence. And in my opinion it would be highly unjust that the English sentence should be allowed to militate against a person exactly as it would do in England and not at the same time to give the pardon the same effect which it would have in that country. The comitas due to the sentence of an English Court is also due to the pardon, or to the sentence which an English Court would pronounce in consequence of that pardon. I cannot figure a more grievous punishment than that of being held out as a person incapable of giving testimony in any cause; and if by the law of England all the consequences of a sentence are done away by His Majesty’s pardon, then this goes among the rest.

Had the crime been committed, or the sentence pronounced, in Scotland I would have had another opinion. I do not sit here, my Lords, to pass judgment upon authors long since dead. But the same opinion is delivered by Dirleton, which is given by Sir George Mackenzie; and his authority will not, I suppose, be questioned by any lawyer. And I hold it to be the law of Scotland, that a pardon does not restore the person pardoned, so as to free him from the infamy attending his crime. But as the law of England—the law of that country where the crime was committed, and the sentence pronounced—says otherwise, I am bound to repel the objection.

Lord Stonefield—My Lords, I am for repelling the objection. It was repelled in the case of Lord Castlehaven in the State trials.

Lord Stonefield.
(After Kay.)

Lord Swinton—My Lords, this is a question of so much delicacy and importance that I could have wished more time to have weighed what I have heard from the counsel than the forms of Court will admit of.

The question is—Whether His Majesty’s pardon did so far restore John Brown to the character and reputation he held before his conviction as to make his evidence admissible in the present trial?

In substance, my opinion concurs with that of my brethren, for repelling, in the circumstances of the present case, the objection to the admissibility of the witness, leaving his credit to the consciences and good sense of the jury.

Had John Brown’s conviction proceeded upon a jury trial in Scotland, I would have been of a different opinion. There are, in the first place, several texts in the civil law upon this topic, all clearly purporting that a remission, so far from restoring, even blemished, the reputation of him whom it relieved from punishment. Next, our municipal law is perfectly explicit to the same effect. The statutes of Robert I., among others therein debarred from giving evidence, mentions convicts redeemed from justice. This act is expressly quoted and laid down as law by Sir George Mackenzie, who is, at least, our most ancient author upon the criminal law, and there is no practice or decision to the contrary.

These observations, however, I do not apply to the present case, for here the conviction and sentence are from England. The infamy, therefore, disabling Brown to be a witness arising in the law of that country, and coming here, must bring its character and construction and effects along with it.

I observe that one of these effects was the restoring a criminal pardoned to the state and character that he held previous to the conviction. The authorities referred to by the Lord Advocate prove this, and, in addition to these, I shall only mention to your Lordships Mr. Justice Buller’s Treatise on Trials, a book of great authority, which lays down that if a person found guilty, on an indictment for perjury at common law, be pardoned by the King, he will be a good witness, because the King has power to take off every part of the punishment.

As to the sentence of the Justices of Peace of the county of Stirlingshire, banishing Brown by his own consent from that county, no stress can be laid on it, as it is now a settled point that no sentence of an inferior Court, proceeding without the verdict of a jury, is sufficient to set aside any person from being a witness.

The Lord Justice-Clerk—My Lords, I will not say a word about the sentence of the Justices of Peace, nor of what would have been the case had the crime been committed, or sentence pronounced, in Scotland. I would hold the decree in England pro veritate, and give it effect accordingly. But, my Lords, if the pardon frees this man from the penal consequences of his sentence, although I were to hold that it does not rehabilitate him in Scotland, still it leaves only the infamia facti, for the infamia juris is, eo ipso, done away. And, my Lords, nothing can set aside a witness unless infamia juris.

The Dean of Faculty argued this objection with great ingenuity, but he founded his whole argument on the proposition that an infamia facti, if it was capable of proof, was a sufficient objection to the admissibility of a witness; and, indeed, unless this proposition were true, his whole argument falls to the ground. But, my Lords, this proposition is evidently fallacious, and I need use no other instance than that of Ainslie, who, like every other King’s evidence, admitted in the very bosom of his deposition an infamia facti, in so far as he was concerned in the commission of the crime charged against the pannels, and yet it was not even pretended that this was an objection to his admissibility; and your Lordships every day allow the examination of witnesses in the same situation. I am therefore clear for repelling the objection.

The Court then pronounced the following interlocutor:—

The Lord Justice-Clerk and Lords Commissioners of Justiciary having considered the foregoing objections with the answers thereto, they repel the objections stated and allow the witness to be examined, reserving the credibility of his evidence to the jury.

Robt. M‘Queen, I.P.D.

[The witness was then called in and sworn.]

The Lord Justice-Clerk—John Brown, you are called here to give evidence regarding a matter in which it is generally supposed that you yourself had some concern. You are now informed by the Court that although you may have had such a concern you are in no danger to speak the truth, because, being adduced as a witness against the prisoners at the bar, you cannot be tried for the crime of which they are accused; and you will take notice that whatever you may have said against these men, in the different declarations which you emitted before the Sheriff, which are now destroyed, you are now bound by the great oath which you have sworn to tell the truth; and that if you say anything to the prejudice of these men that is not true or if you conceal any part of the truth, with a view to favour them, you will thereby be guilty of the crime of perjury, for which you will be liable to be tried by this Court, and severely punished, and you will commit a heinous offence in the sight of the Almighty God, and thereby endanger your immortal soul.

Witness—I am acquainted intimately with both the pannels, and have been frequently in company with them, and with Andrew Ainslie, then a shoemaker in Edinburgh. I have met Brodie often at Smith’s house and other places. I know that the General Excise Office in Chessels’s Buildings was broken into upon Wednesday, the 5th of March last; I was myself one of them that broke into it, and Andrew Ainslie and the two prisoners were along with me. George Smith and I were within the office, Brodie was at the door, and Andrew Ainslie was without, keeping watch. We had resolved three months before to break into it; and on the 30th of November last, the night on which the Free Masons made a public procession last winter, Smith, Ainslie, and I went to the Excise Office and unlocked the outer door with a false key. We went in together, and opened the inner door to the hall with a pair of toupee irons, but none of the keys we had would open the cashier’s door. Smith said a coulter would be a good thing to open it with. Thinking it too late to remain longer, we came out again; but we could not lock the outer door with the key, and therefore left it unlocked. Last spring Ainslie and I went to Duddingston, and drank a bottle of porter in a house there; afterwards we went into a field in the neighbourhood, in which there were two ploughs, and carried off the coulter of one of them, which we hid in Salisbury Crags. On the evening of the 5th of March last, which was two or three days afterwards, when it was about dusk, Ainslie and I went out to Salisbury Crags for the coulter, and brought it in with us to Smith’s house. Smith was at home, but Brodie was not yet come, although we expected him. The hour at which we had agreed to meet was seven, but Mr. Brodie did not come until near eight. The purpose of our meeting was to go and rob the Excise Office that night. We were in Smith’s room above-stairs when Brodie joined us, and we there drank some gin and “black cork,” and ate some herrings and chicken. By “black cork” I mean Bell’s beer. Mr. Brodie was then dressed in black; in the preceding part of the day I saw him in white or light-coloured clothes. I do not remember that he had a great-coat on when he came to us at Smith’s in the evening. When he entered the room he took a pistol from his pocket, and repeated the verse of a song of Macheath’s from a play, words like—“We’ll turn our lead into gold,” or such like.[12] After we were all met together, it was agreed upon that Ainslie should remain on the outside of the Excise Office, within the rails, with a whistle, to give the alarm in case of danger; that Brodie was to be stationed within the outer door for the same purpose; and that Smith and I should go into the cashier’s room. Accordingly, Ainslie left Smith’s first, and in some time after I followed. Brodie was not disguised, but Smith and I had crapes in our pocket, and Smith had likewise a wig, which, I believe, had once belonged to Brodie’s father. When I came to the mouth of the entry to Chessels’s Buildings, I met the old man who usually locked the door coming out, and went after him and saw him go home. My reason for so doing was to see that he had not gone on an errand and to return. When I came back to the court I met Brodie in the entry, who told me that Smith had gone into the office, and desired me to go in. I went down the close with him, saw Ainslie at his post, and received the coulter, or “Great Samuel,” from him, and carried it in with me to the office. I found the outer door open and Smith in the hall. The outer door of the cashier’s room was opened by Smith with a pair of curling irons, and I assisted him to force open the inner door of the cashier’s room with the coulter and a small iron crow. After we got in, Smith, who had a dark lanthorn with him, opened every press and desk in the room where he suspected there was any money; some by violence and others with keys which we found in the room. We continued there about half-an-hour, and found about sixteen pounds of money in a desk in the cashier’s room, which we carried away with us. It consisted of two five-pound notes, six guinea notes, and some silver. We heard some person come upstairs, and cocked our pistols, which were loaded with powder and ball. Smith said he supposed it was some of the clerks going into one of the rooms. We heard no whistle while we were in the office. When we came downstairs, Brodie and Ainslie were both gone. We left the outer door of the Excise Office unlocked, and carried the key away with us. We then came up to the Canongate, and went across it, and down another street a little below—Young’s Street. I stopped in the middle of the last street, pulled off my great-coat and gave it to Smith. I then returned, went down to the Excise Office door, where everything seemed to be quiet; afterwards I went to Smith’s house, where in a little I was joined by Smith, and soon afterwards by Ainslie. I did not remain there long, when Smith recommended it to me and Ainslie to go over to Fraser’s house in the New Town, that we might avoid suspicion; and we went accordingly. I knew at the time that Smith was making a key for the outer door of the Excise Office. [Here the witness was shown a key.] That is the key he so made, and with which he opened the door. We had three pair of pistols along with us, all of which were previously loaded by Smith with powder and ball. [Here the pistols libelled on were shown the witness.] These are a pair of them, but whether that pair was carried to the Excise Office by Smith or me I cannot say. I saw Mr. Brodie have a pistol in his hand in Smith’s house. When Brodie came to Smith’s first that night he brought with him some small keys, and a double pick-lock, which we all looked at. [Here the pick-lock libelled on was shown to the witness.] This is the same that was used on that occasion. On Friday, the 7th of March, I was sent for to Smith’s house. Brodie, Smith, and Ainslie were there, and the money which we got in the Excise Office was then equally divided between us. I got about four pounds from Brodie to my share. I saw all the money in Smith’s room above-stairs before it was divided, and there were two five-pound bank-notes amongst it. On the same Friday evening, I went with Smith and Ainslie to Drysdale’s, in the New Town, and saw Smith change one of the five-pound notes there, when purchasing a ticket for his wife in the mail-coach to Newcastle. I went to William Middleton on Friday night, the 7th of March last, and told him that I wished to make a discovery as to the late robberies; he carried me the same night to Mr. Scott, the Procurator-Fiscal, but I did not at that time mention anything of Brodie’s concern in them. The next day I was sent to England to trace some goods taken from Inglis & Horner’s shop. I returned on the 15th of March, and was the same day examined by the Sheriff. I was informed that Smith had emitted a declaration, informing of Brodie’s guilt, in consequence of which he (Brodie) had absconded, and then for the first time I mentioned that Mr. Brodie had been concerned with us.[13] Ainslie informed Smith and me that he had seen two men come up the close before he quitted his post at the Excise Office and went away. Smith carried the money which was found in the Excise Office away with him, and he afterwards gave it to Brodie, who made a fair division of it on the Friday. On the Thursday I did not see him.

Lord Hailes—John Brown, you have already been told by the Court that you ought to pay no regard to what was contained in your declarations before the Sheriff, and that, whatever you may have formerly said, you cannot now hurt yourself by speaking the truth. I intreat you to reflect on the evidence you have given this night, and if you are conscious of having said anything which you ought not to have said, that you may say so to the Court and to the jury. It is not as yet too late, but if you neglect the opportunity which you now have it will never recur to you again; and I earnestly desire you to beware of this, that if you have said anything this night to the prejudice of these men at the bar that is not true, and if you do not undeceive the Court and the jury before you leave this house, you will commit a most heinous sin against the God of heaven, in whose presence you now stand, and you will be guilty of perjury and of murder.

Cross-examined by the Dean of Faculty, for William Brodie—When you went first to Mr. Scott, the Procurator-Fiscal, did you say anything concerning the breaking of the Excise Office?

Witness—I did.

The Dean of Faculty—Who did you say was concerned with you?

Witness—George Smith. I did not mention either Brodie or Ainslie until I returned from England.

The Dean of Faculty—Are you sure that Mr. Brodie brought his pistols to Smith’s in the afternoon?

Witness—I am certain.

The Dean of Faculty—Did you not say that when he came to Smith’s before eight o’clock he had his pistol in his hand?

Witness—I did.

The Dean of Faculty—How could he have left them at Smith’s, then, in the afternoon?

Witness—I did not say he left them there; he brought them there, but carried them away with him again. I am certain as to the small pistols that Mr. Brodie carried in his breeches pocket.

The Dean of Faculty—Was Mr. Brodie present when the pistols were loaded?

Witness—He was.

The Dean of Faculty—When did Mr. Brodie first come to Smith’s that day, and how was he dressed?

Witness—He came in coloured clothes, between dinner and tea.

The Dean of Faculty—Might that be four o’clock?

Witness—I could not tell what o’clock it was.

The Dean of Faculty—Was it after three o’clock that afternoon?

Witness—I am not certain.

The Dean of Faculty—Was it after two o’clock?

Witness—Yes, I am certain it was.

The Dean of Faculty—Were these the pistols he brought with him? [The pistols produced.]

Witness—No, not these; I did not say these, but another pair, since the truth must be told. Do not think to trap me; you may make something of me by fair means, but not by foul. I do not understand the meaning of being thus teased by impertinent questions.

The Dean of Faculty—The more violent the gentleman is, so much the better for my client. The jury will take notice of the manner in which he gives his evidence.

Lord Eskgrove—My Lord Justice-Clerk, the witness should be told that he ought not to talk in that manner to the counsel.

The Lord Justice-Clerk [to witness]—Mr. Brown, you are going too far; it is the duty of these gentlemen to put any questions to you which they think proper, relating to the crime charged.

Witness—My Lord, in giving my evidence, I have said nothing but the truth, and I have rather softened the matter than otherwise, with regard to Mr. Brodie.

The Dean of Faculty—At what hour, sir, did you go to the Excise Office on the night you have mentioned, and when did you return to Smith’s?

Witness—As I was going down to the Excise Office the clock struck eight, and I was back again at Smith’s house about nine o’clock.

Cross-examined by Mr. John Clerk, for George Smith—Pray, sir, how do you know that to be the key with which Mr. Smith opened the door of the Excise Office? You said just now that you were not present when Smith opened the door; that he was in before you arrived.

Witness—I know very well that that was the key, because I knew he made it for that purpose.

Mr. John Clerk—But how do you know that he opened the door with that key on the 5th of March?

Witness—I know he made the key so far back as November last. I know the key very well; there is not a key in five hundred like it. You will not show me such a key in Edinburgh. There is no smith in this city could make such a key.

Mr. John Clerk—That is no answer to my question.

The Lord Justice-Clerk—It is enough to satisfy any sensible man.

Mr. John Clerk—It is for the jury, my Lord, to judge of that.

[To Witness]—You mentioned your having on a great-coat when you broke into the Excise Office; pray, sir, was that great-coat your own, or to whom did it belong?

Witness—It belonged to Michael Henderson, stabler in the Grassmarket, and I carried it home to him the following night.

Mr. John Clerk—Did you carry anything to Mr. Henderson along with it?

Witness—I did not.

The Lord Justice-Clerk—John Brown, you appear to be a clever fellow, and I hope you will now abandon your dissipated courses, and betake yourself to some honest employment.

Witness—My Lord, be assured my future life shall make amends for my past conduct.

The Lord Advocate—My Lord, the parole evidence on the part of the Crown being now closed, the declarations and other writings, which have been authenticated in the presence of your Lordships, fall now to be read to the jury, but as there are some parts of Smith’s declarations which relate to matters not immediately connected with the subject of the present trial, I do not desire that these parts of his declarations should be read by the Clerk of Court or communicated to the jury.

[After some conversation, this proposal, which did much honour to his Lordship, was agreed to, and such parts of the declarations as were not read in Court were pasted over with paper, that they might not be looked into through mistake by the jury after they were inclosed.]