Trial of Deacon Brodie

by Unknown

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.