Trial of Deacon Brodie

by Unknown

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:—