The Lord Justice-Clerk’s Charge to the Jury.
Lord Justice-Clerk
The Lord Justice-Clerk—Gentlemen of the jury, the crime which is charged against the prisoners at the bar is of a kind the most hurtful to society. The situation of the pannels, and particularly one of them, is also exceedingly distressful. Mr. Brodie’s father, whom I knew, was a very respectable man, and that the son of such a man—himself, too, educated to a respectable profession and who had long lived with reputation in it—should be arraigned at this bar for a crime so detestable, is what must affect us all, gentlemen, with sensations of horror. This unhappy situation seems to have arisen from a habitude of indulging vices which are too prevalent and fashionable, but it affords a striking example of the ruin which follows in their train.
That the Excise Office was broke into is not disputed. The question therefore is, who broke into it? Was it the pannels?
Now, to ascertain this point you have, in the first place, gentlemen, the evidence of Brown and Ainslie, and if they have sworn truth the prisoners must be guilty. To the admissibility of these witnesses there can be no objection. Were not evidence of this sort admissible, there would not be a possibility of detecting any crime of an occult nature. Had a corrupt bargain, indeed, been proved, by which they were induced to give their evidence, there might have been room for an objection to their admissibility. But no such bargain has even been alleged against the public prosecutor in the present case. And as to their being accomplices, this, gentlemen, is no objection at all. A proof by accomplices may display, it is true, a corruption of manners, which alone can render such proof necessary. But it is impossible to go into the idea that their testimony is therefore inadmissible.
Nor is there, in the present case, any reason to suppose that they were under improper temptations to give their evidence. Each of them was separately called upon by the Court, and it was explained to each of them that they ran no hazard unless from not speaking the truth, and that their being produced as witnesses secured them from all punishment, except what would follow upon their giving false evidence. Under such circumstances, you cannot suppose, gentlemen, that they would be guilty of perjury without any prospect of advantage to themselves, and merely to swear away the lives of these prisoners at the bar.
Their credibility, to be sure, rests with you, gentlemen; and if you find anything unnatural or contradictory in their evidence you will reject it. But there is nothing in it unnatural or contradictory. The principal objection was made against Brown, but his evidence is corroborated by that of Ainslie, and the evidence of Ainslie is again corroborated by that of Brown, and they are both corroborated by all the other circumstances deposed to. With regard to Smith, you have the best of all evidence against him, his own declarations, for it surely is not to be imagined that any man would criminate himself contrary to the truth. These declarations have been substantiated in your hearing, and where a corpus delicti is established, as in the present case, to which these declarations refer, there cannot be a doubt of their being the very best evidence, and therefore you can be under no difficulty of returning a verdict against him.
Gentlemen, to be sure these declarations are not legal evidence against Brodie. But they corroborate the evidence of Brown and Ainslie, who swear positively against him.
The evidence of Grahame Campbell likewise corroborates that of these witnesses. With regard to Mr. Brodie, she swears positively to his being present with them, dressed in an old-fashioned suit of black clothes. She seems, indeed, to be in a mistake about the prisoner’s having supped at Smith’s house that night, but the rest of her evidence is clear and explicit, and concurs precisely with what you have heard from the other witnesses.
The evidence of Brown and Ainslie likewise corresponds exactly with the deposition of James Bonar. Ainslie tells you that a man came running down the close, and it appears that when he opened the door Brodie set off with himself—and, indeed, to tell you the truth, I could not much blame him; and Mr. Bonar tells you that he went down the close at the very time when the robbery was going on, and that when he opened the door a man stepped out, of a description that exactly corresponds with the prisoner and the dress he had on that night.
It appears clear also, gentlemen, from the depositions of the sheriff-officers, that several articles were found upon the search in Brodie’s house, which Brown and Ainslie depose to have been used in the robbery of the Excise Office; a pair of pistols, a dark lanthorn, keys, pick-locks, &c., and many of these last such as never were employed by Mr. Brodie in the course of his business. So that no doubt can remain in your mind of the truth of the facts sworn to by these two men, which are all consistent with, and corroborated by the other evidence.
The crime with which these prisoners are charged, gentlemen, was committed on Wednesday, the 5th of March. Two persons were taken up for it, and Brodie absconded. It is established by the evidence that he went to London, was afterwards put on board a sloop at night, and carried to Flushing; and that, upon search being made for him, he was apprehended at Amsterdam and brought back to this country. Gentlemen, when a person who is accused of a crime flies from justice, it affords a strong presumption of guilt. An innocent man would not fly without just cause. The prosecution against him for using false dice could not be the reason of his flight. Nay, he tells you himself in his declaration that he absconded because Smith and Ainslie were taken up.
The papers found in the trunk, gentlemen, and the two scrolls, all which have been proved to be of Mr. Brodie’s handwriting, afford strong evidence against him. In one of the scrolls there is a fair and full confession of his direct accession to the robbery of the Excise Office. He says, “He never was directly concerned in any of their depredations, except the last fatal one.” This is even a confession of more than is charged against him, for it must mean that he was concerned, though not directly, in their other depredations. It is impossible, gentlemen, to mistake the meaning of this expression, or that it can apply to anything else than the breaking into the Excise Office.
With regard to the alibi, gentlemen, it is no doubt proved by the oath of Mr. Sheriff that he was in Brodie’s company from three o’clock of Wednesday, 5th March, till near eight at night, he having dined in Mr. Brodie’s house that day along with three ladies, and a gentleman whose name he does not recollect. But then this rests entirely upon his evidence, and though I do not mean to say that he has sworn falsely, yet he is not a witness omni exceptione major, above all exception, being the brother-in-law of Mr. Brodie. Besides that, gentlemen, allowing the evidence of Mr. Sheriff, he is still only a single witness, and even in civil cases a fact cannot be established by the evidence only of one witness, especially where it is not supported by any other circumstances. At any rate, the evidence is not inconsistent with the guilt of the pannel, for the Excise Office was broke into after eight o’clock, and Mr. Sheriff was in his own house in St. James’s Square about eight o’clock.
As to the evidence of Jean Watt, who swears that Brodie came to her house that night at eight o’clock, you are to consider, gentlemen, that although, to be sure, she is not his wife, yet she is his mistress; and love is often as deeply rooted between persons of that kidney as between lawful man and wife. And, as you see, gentlemen, that either she must be mistaken as to the hour or that the witnesses on the other side must be wrong, you are to determine with yourselves whether the witnesses for the prosecution brought forward by the Lord Advocate, who has no interest but to get at the truth, or this woman, and her servant-maid who concurs with her, are most entitled to belief. And you can have no doubt but that the presumption is greatly in favour of the witnesses for the Crown, who can be influenced by no motives but those of public justice.
This woman and her servant, Peggy Giles, have no doubt deposed that it was eight o’clock when Mr. Brodie came to their house; but, gentlemen, even supposing them to be swearing to what they think true, yet they still may be mistaken with regard to the precise time; and the mistake of an hour, or half-an-hour, would reconcile their evidences with the other proof you have heard. There is a bell rings at ten o’clock as well as at eight, and these witnesses may very probably have confounded the one with the other; for I have no doubt that Brodie did come to that house that night, and staid there till the next morning. Gentlemen, the law itself makes allowance for mistakes of this kind. Thus in the civil Court, in a competition between two arrestments, of which one, for instance, is at eight and another at nine o’clock, they are preferred parri passu, because the law supposes that the memories of witnesses may be so frail as not to distinguish short intervals of time with proper accuracy. So that you see, gentlemen, that even supposing these witnesses were willing to speak the truth, yet their evidence is completely reconcilable with the other depositions.
Upon the whole, gentlemen, taking all the circumstances of this case together, I can have no doubt in my own mind that Mr. Brodie was present at the breaking into the Excise Office; and as to the other man, Smith, as I have already said, there can be still less doubt as to him. If you are of the same opinion, gentlemen, you will return a verdict against both the prisoners; but if you are of a different opinion, and do not consider the evidence against Brodie sufficiently strong, you will separate the one from the other, and bring in a verdict accordingly.
At about six o’clock on Thursday morning, the Lord Justice-Clerk, having finished his charge to the jury, said that he hoped it would not be inconvenient for them to return their verdict at twelve o’clock that day; but, upon the suggestion of one of the jurymen, it was fixed to be returned at one o’clock.
The Court then pronounced the following interlocutor:—
The Lord Justice-Clerk and Lords Commissioners of Justiciary ordain the assize instantly to inclose in this place, and to return their verdict in the same place at one o’clock this afternoon, continue the diet against the pannels till that time, ordain the haill fifteen assizers and all concerned then to attend each under the pains of law, and the pannels in the meantime to be carried back to prison.
The Trial.
Second Day—Thursday, 28th August, 1788.
The Court met at one o’clock.
CURIA JUSTICIARIA S. D. N. Regis, Tenta in Nova Sessionis domo de Edinburgh, Vicesimo Octavo die Augusti millesimo septingentesimo Octogesimo octavo, Per Honorabiles Viros; Robertum M‘Queen de Braxfield, Dominum Justiciarium Clericum; Dominum Davidem Dalrymple de Hailes, Baronetum; Davidem Rae de Eskgrove; Joannem Campbell de Stonefield; et Joannem Swinton de Swinton, Dominos Commissionarios Justiciarae dict. S. D. N. Regis.
Curia Legitime Affirmata.
INTRAN. William Brodie, sometime Wright and Cabinetmaker in Edinburgh, and George Smith, sometime Grocer there, both prisoners in the Tolbooth of Edinburgh.
Pannels.
INDICTED and ACCUSED as in the preceding Sederunt.
The Court being again met, and the prisoners brought to the bar, the Clerk of Court called over the list of the jury, and all being present, the Lord Justice-Clerk asked them who was their Chancellor, upon which the Chancellor rose, and delivered their verdict to his Lordship, sealed with black wax.
The verdict being opened and read by the judges severally, they appointed it to be recorded. During this pause a deep silence prevailed.
The verdict being recorded, the Lord Justice-Clerk called upon the prisoners to attend to it, and it was then read aloud by the Clerk of Court as follows:—
At Edinburgh the twenty-eighth day of August one
thousand seven hundred and eighty-eight years.
The above assize having inclosed, did make choice of the said John Hutton to be their Chancellor, and of the said John Hay to be their Clerk: and having considered the Criminal Indictment raised and pursued at the instance of Ilay Campbell, Esq., His Majesty’s Advocate, for His Majesty’s interest, against William Brodie, late wright and cabinetmaker in Edinburgh, and George Smith, late grocer there, pannels,[26] with the interlocutor pronounced by the Lord Justice-Clerk and Lords Commissioners of Justiciary on the relevancy thereof together with the depositions of the witnesses adduced by the prosecutor for proving the same, and the several declarations libelled on, as also the depositions of the witnesses adduced for the pannel William Brodie, in exculpation; they all, in one voice, find the pannels William Brodie and George Smith Guilty of the crime charged against them in the said Indictment. In witness whereof their said Chancellor and Clerk have subscribed these presents upon this and the preceding page, place and date foresaid, in their name and by their appointment.
John Hutton, Chanr.
John Hay, Clerk.
The Lord Advocate—It is now incumbent upon me, my Lords, to move your Lordships to pronounce the sentence of the law against the prisoners at the bar.
Mr. Wight—My Lords, before your Lordships proceed to pronounce judgment, I have an objection to state on behalf of the prisoners at the bar, which, in my opinion, ought to prevent any judgment from passing upon this verdict.
My Lords, from the evidence taken in the course of this trial, it appears that the libel is insufficient, in so far as it charges “that the pannels did wickedly and feloniously break into the house in which the General Excise Office for Scotland was then kept,” whereas it ought to have stated that they so broke into one of the houses so kept, describing such house particularly. For it appears from the proof that there were two separate and distinct houses in which the General Excise Office for Scotland was then kept, on the opposite sides of the court, and at a considerable distance from each other.
Besides, my Lords, supposing this uncertainty in the libel as to the locus delicti were insufficient to operate an arrest in judgment, yet no judgment can pass upon the verdict of the jury, on account of the uncertainty thereof, inasmuch as it finds in general terms the pannels guilty of the crime libelled; by which it is found that they have been guilty of breaking into the house in which the General Excise Office for Scotland was then kept, without distinguishing to which of the two before-mentioned houses the verdict applies. And the present plea in arrest of judgment deserves the greater consideration on this account, that the jury were called upon, by the manner in which the proof was conducted on the part of the pannels, to attend particularly to the circumstance of the Excise Office being kept in two separate and distinct houses.
The Lord Advocate—My Lords, I am not a little surprised that an objection of this nature should be brought forward at this time. This plea resolves into an objection to the relevancy or form of the indictment, which ought to have been stated in limine. If the gentlemen on the other side of the bar meant to have stated any such objection as the present, they ought to have done it yesterday. But after they have allowed the indictment to pass without any such objection; after your Lordships have sustained it as relevant, and remitted it to the knowledge of an assize in common form; and when the jury have returned a verdict finding the prisoners guilty of the crime charged—there can be no room for any further proceeding, except to pronounce the sentence of the law upon the verdict so returned.
I do therefore, my Lords, altogether deny that it is competent, in this stage of the trial, to bring forward an objection such as the present, which ought to have been stated at first, and which your Lordships cannot now enter upon.
But, my Lords, even if the matter were open, the objection itself is altogether frivolous, for the house that was broke into, as stated in the indictment, was really and truly the house known by the name of the General Excise Office for Scotland at the time. It is indeed true that one or two of the clerks and inferior officers were accommodated in a small house within a few feet or yards of the large one, and which was joined to it by a wall like a wing. But this did not make them in any sense of the word two separate houses. The principal house which was broke into, was hired at £300 per annum of rent, and the small house at £8 per annum. This last was just as much a part of the General Excise Office as a kitchen separate from any house is a part of that house. And surely your Lordships would not cast an indictment which charged that a man’s house was broke into, upon the ground that his kitchen was not joined to his house, which very often happens.
I therefore, my Lords, consider this as a very frivolous objection, and I know that the honourable counsel on the other side of the bar, who is, to speak in reply to me, knows too well the dignity of his character and the honour of his profession to insist seriously upon an objection so futile. Had this been the case of a poor man, my Lord, we would not have heard of this objection, and I do not see what title the rank and situation of this man can plead for troubling the Court with frivolous objections to the verdict of a jury after so long and so fair a trial.
The Dean of Faculty—My Lords, I know what belongs to the dignity of my profession and the honour of my character as well as my Lord Advocate. [Here the Lord Advocate, laying his hand upon his heart, expressed, by the strongest gestures, that he meant to say nothing disrespectful to the Dean of Faculty, and was going to speak, when the Lord Justice-Clerk said that what my Lord Advocate had mentioned, so far from being derogatory to the Dean of Faculty, was a high compliment to him. The Dean of Faculty then resumed.] My Lords, I say that I know how I ought to conduct myself, both as a lawyer and a gentleman, and it is in the full conviction of performing my duty that I rise to enforce the present objection, which I think is such a one as ought to overturn this verdict.
It has been asked why this objection was not brought forward in an earlier stage of the trial—why it was not pleaded at the very outset, as sufficient to cast the indictment? It has been called a frivolous objection by my Lord Advocate. But many objections were styled frivolous by the gentlemen on that side of the table during the course of this trial, which your Lordships decided to be well founded. My Lords, it was impossible to plead it in this early stage, because the fact came out to be as stated in the objection only during the time that the proof in this trial was led. Though the circumstances might be known to us privately before, yet it was not substantiated by proof, and this surely is the proper time for stating an objection, the grounds of which only appeared in the course of the evidence, and could not possibly appear sooner.
With regard to the matter of fact in this case, I shall not detain your Lordships a moment. Nothing is clearer from the evidence than that there were two separate and distinct houses in which the Excise Office was kept at the time when the robbery was committed. Several of the witnesses have sworn to this, and it was admitted on the other side of the table. I therefore say, my Lords, that this verdict, which has found the prisoners guilty of breaking into the house in which the General Excise Office was kept, finds nothing.
It is in vain to say that these two houses belonged to one and the same office. If they are not under the same roof—which it is confessed these two houses are not—then it is of no importance how near they may be to each other, for neither of them is the house in which the Excise Office was kept, but only one of the houses employed for that purpose. His Grace the Duke of Buccleugh has two houses lying near each other, the house of Dalkeith and the house of Smeiton, both in the parish of Dalkeith. Would the verdict of a jury be good, which, upon the statement of an indictment that the house of the Duke of Buccleugh, lying within the parish of Dalkeith, was broke into, should simply find the pannel guilty? Surely not. It would be necessary to specify which of the houses was broke into, because an innocent man, who could prove an alibi with regard to the one, might not be able to prove it with regard to both, or, in short, because the libel is uncertain.
The Excise Office is now removed to the house lately possessed by Sir Laurence Dundas in the New Town of Edinburgh.[27] Suppose that part of the offices still remained in the former place, would it be sufficient to say that the house in which the General Excise Office is kept was broke into, when there were evidently two houses in which it was kept, one in the Old and one in the New Town? And the only difference betwixt that case and the present is that the distance is greater, for in both cases the houses are equally separate and distinct.
In the same way, for the sake of illustration, it was not till lately that I myself could find a house sufficiently convenient both for the purposes of business and accommodation of a numerous family. I had accordingly two houses, one in George Street and one in Princes Street, and I have done business in both of them. Now, would an indictment charging a person with having broken into the house of the Honourable Henry Erskine, Dean of the Faculty of Advocates, be sufficient, while I possessed two houses, to support a verdict which found the pannel in general terms guilty? It would not be enough to say that I employed both houses frequently for the same purposes, and that I could pass from the one into the other, though not without some little inconvenience of getting wet when it rained. This undoubtedly would not be sufficient, unless I could prove that both houses were one and the same; a verdict finding the pannel guilty of breaking into the house, could, from its uncertainty, apply neither to the one nor to the other.
My Lords, I will not detain your Lordships. The case is very short and simple, and without stating any further illustrations or arguments, I think that the prisoner cannot be more safe than in the opinions which your Lordships shall deliver upon so plain a point so fairly stated to you.
Lord Hailes—My Lords, I have great doubts concerning the competency of this objection, but it is a subject upon which I do not like to enter. I am indeed sorry that this objection has been stated, as it may flatter the prisoners with hopes which I am afraid are ill founded.
The merits of the objection itself appear to me very easy of discussion. The Dean of Faculty is mistaken with regard to the houses possessed by the Duke of Buccleugh, for they are not both in the parish of Dalkeith, as the house of Smeiton lies in the parish of Inveresk. But supposing they did both lie in the same parish, there is a great difference betwixt houses situated at some distance from each other and those which lie immediately contiguous, as is the present case. The small house adjoining to that principal one in which the Excise Office was kept is to be considered as a part of the same building, employed always for the same purpose, and used only for better accommodation.
I repeat it again, my Lords, that I have doubts whether or not this objection be now competent, but laying this out of the question, I am clear for repelling the objection, as the expression used in the indictment appears to me sufficiently descriptive of the place in which the General Excise Office was kept.
Lord Eskgrove—My Lords, I am sorry that this objection has been stated, and I think it my duty to declare, for the sake of the prisoners at the bar, that I do not think it such as ought to induce them to hope that it will operate any change as to the verdict which has been returned this day.
It is my opinion, my Lords, that the objection itself, without entering into the question whether it be now competent to state it, cannot be listened to by the Court. The indictment states that the prisoners at the bar broke into the house in which the Excise Office was kept at the time when the robbery happened, and although a few offices may have been kept in the small house adjoining to the principal building, yet it cannot be denied that this separate tenement was considered as a part of the General Excise Office; and the witnesses themselves, who were examined upon this point have told us that had this small tenement been broke into instead of the principal house, they would have said that the Excise Office was broke into.
Upon this ground, I am clear for repelling this objection as not well founded, the whole building, which was called the Excise Office, being situated in the same place, and inclosed by the Commissioners so as to render its parts distinct from any other building.
Lord Stonefield—My Lords, I do not understand the bringing forward this objection at this time; it seems as if they wished to introduce the forms of the law of England. I think that the Lord Advocate has described in the indictment the place where the crime was perpetrated with sufficient accuracy, and therefore I am for repelling the objection.
Lord Swinton—My Lords, among all the proceedings in this painful trial, the present motion gives me the greatest pain. It sets forth, first, that the libel charged the prisoners with wickedly and feloniously breaking into the house in which the General Excise Office for Scotland was then kept. The motion next sets forth that the verdict finds the prisoners guilty of the crime charged; and it concludes for an arrest of judgment, because the General Excise Office consists of more houses than one, as your Lordships will recollect from the proof taken before you yesterday.
One of the counsel yesterday stated himself as appearing not only in defence of the prisoners, but in defence of the law itself.
The motion, however, now made, if properly considered, tends to overturn the most valuable part of the law, namely, that part which gives this kingdom the security of jury trial. By the mode of trials long ago established, the libel is first of all to be read; the party accused is then at liberty to state his defences to the form of the indictment, and to the competency or relevancy of the charge; and it is the province of the judges to determine the law, that is, to decide upon the defences; which, together with the judgment upon them, must enter the record. The indictment and judgments upon it are then remitted to the knowledge of an assize. It then goes out of the hands of the judges, and the province of the jury commences, which is to try the truth of the facts, and to apply the law, that is, the judgment of the Court, to the facts, by returning such verdict as they think fit. That is their province. After they return their verdict, the cause comes back into the hands of the judges to pronounce the sentence of the law. But in doing so the only materials subject to their judgment are those which appear on the face of the record, that is, the indictment, the minutes of proceedings, and the verdict. They can take nothing else under their consideration; particularly, they have no power to look back into any part of the proof, or to take it under consideration in any manner.
In the present case, looking into the record, we see the indictment charges the prisoners with breaking into the house in which the General Excise Office was kept. We observe not in the proceedings any objections made to the form or the competency of the charge. The verdict finds the prisoners guilty. This is all that appears upon the face of the record. But what is now proposed to us by this motion? It is to look into our notes, or to recollect from our memory, that it was proved the whole offices of Excise were not precisely under one roof, and that there is a small adjoining house also made use of; and we are moved to arrest judgment, for that the libel is improperly laid, as it does not mention that there are more houses than one, and specify which of these were broke open.
Now, what does this amount to? Is it not a suggestion to the judges to look back into the proof, which is the whole province and privilege of the jury? If the judges, after a verdict, might look back into and consider the proof or any part of it in favour of the party accused, they might surely do the same thing to his prejudice, and in favour of the prosecutor. Is not this a mode of proceeding altogether incompetent? Is it not paving a way to make verdicts of no use, but our usurping a right to judge of the proof, independent of the verdict?—a proceeding which, I should think, is not only incompetent, but even criminal. Why did our ancestors establish the rules of proceeding which we have always observed? It was for the security of the lives and liberties of the subjects of this kingdom. The security handed down to us from our ancestors, we are bound to deliver unimpaired to our posterity.
My Lords, if I have expressed myself warmly upon this occasion, I hope your Lordships will forgive me. I am so clear upon the incompetency of this motion, that, however clear also upon the merits, yet, for the reasons given, I am not at liberty to say one word upon them.
The Lord Justice-Clerk—I am clearly of opinion that it is not now competent to receive this objection, although the objection itself, were it received, is such as would have no weight with me. But I will not enter into its merits; it ought to have been stated in the pleading as a bar to the present trial; and the counsel for the pannels ought then to have brought forward whatever proof they had in order to prove the matter of fact. It is now impossible for the Court to review the evidence which has been led, and the objection must therefore be repelled.
The Dean of Faculty then moved the Court to allow the plea upon the arrest of judgment to be entered upon the record, which was allowed accordingly, and an interlocutor pronounced in the following terms:—
The Lord Justice-Clerk and Lords Commissioners of Justiciary having considered the foregoing debate, they repel the plea offered in arrest of judgment.
Robt. M‘Queen, I.P.D.
The Lord Justice-Clerk—My Lords, you will now deliver your opinions as to the sentence to be pronounced against the pannels at the bar.
Lord Hailes—My Lords, after the verdict of the jury, nothing remains for us but the melancholy task of pronouncing the sentence of the law. It is not left in our option what punishment to inflict, for the law has declared the crime of which these unhappy men have been convicted, capital. It is my opinion, my Lords, that the prisoners at the bar be carried back to the Tolbooth of Edinburgh, and that they be there detained, and that they be executed on Wednesday, the first day of October next.
Lord Eskgrove—My Lords, nothing is left for me but to agree with the opinion delivered by my honourable brother. I sincerely commiserate the fate of these unhappy men; one of them especially I pity much. Now that I see him at the bar, I recollect having known him in his better days and I remember his father, who was a most worthy man. Their situation is a miserable one, and I hope that it will have the effect to deter others from being betrayed into the same vices which have led these poor men to this ignominious condition.
Lords Stonefield and Swinton delivered sentiments to the same purpose.