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.