Chapter XI: Introduction (9)

But, gentlemen, I have no occasion to dispute, and indeed, from the evidence of Helen Alison, I am inclined to believe that the prisoner went on the Wednesday night to Mrs. Watt’s house, and slept there that night; but I have heard nothing, allowing all the witnesses to have spoken what they believed to be true, that goes to prove that he went there until after the crime was committed. Gentlemen, the circumstance which fixes the hour in the memory of both Mrs. Watt and her servant is the ringing of a bell, and we all know that there is a bell that rings at ten o’clock as well as at eight. And it is very far from being improbable that they might both mistake the one bell for the other, either at the time, or afterwards, upon endeavouring to recollect the hour at which Brodie came to them.

Allowing, therefore, gentlemen, that all the witnesses adduced by the prisoner are to be believed, there appears to be nothing in their testimony contradictory to the evidence of the prisoner’s accession to the crime charged; and therefore I can have no doubt that, although the matter rested upon the evidence I have already stated, you could have no hesitation in pronouncing both the prisoners guilty.

But, gentlemen, when, in addition to that evidence, you take into your consideration the testimony of Ainslie and Brown, the two associates of the pannels, if any doubt did remain, it would necessarily be removed. The counsel for the prisoners, aware of this, have objected to the admissibility of both of them.

I admit that the credibility of these witnesses is liable to suspicion, and that if the proof rested upon their evidence alone, I would not call upon you to find the prisoners guilty upon it, but in so far as their evidence is corroborated by the general tenor of the other unexceptionable parts of the proof they are entitled to credit.

To Ainslie it has been objected that a corrupt bargain was made with him by the Sheriff, which, in other words, amounts to this, that he must be a false witness. If the prisoners’ counsel were serious in stating this objection, they ought certainly to have proved it; but, gentlemen, it proceeded entirely upon a mistake in point of fact--upon a supposition that Ainslie had not spoke out until Brodie was apprehended. Gentlemen, I hold Ainslie’s declaration in my hand, and which I offered to read, and which I would now read, if the forms of the Court would allow me, emitted a short while after the robbery was committed, and containing a full and complete disclosure of the whole transaction. But, gentlemen, you will not, you cannot, suspect that there was any such bargain; that there was anything in the present case out of the common course.

A similar objection was made by the counsel for the prisoner to the evidence of Brown, with this addition, that he had been convicted of felony at the Old Bailey. The last part of this objection, gentlemen, is completely answered by the pardon which, by the law of England, where that sentence was pronounced, completely rehabilitated him. Brown is then in even a more favourable situation than Ainslie, for, as he never was charged with the crime for which the prisoners are tried, nor any intention taken up to prosecute him for it, he had even less temptation than Ainslie to swear falsely.

There is therefore nothing in the objections stated to these witnesses, and accordingly the Court have found so. These men, gentlemen, have told you that Brodie was with them when the breaking into the Excise Office was originally planned that he met them at Smith’s house on the night when the robbery was committed, in which particular their evidence is corroborated by the testimony of Grahame Campbell; that he was with them at the commission of the crime, which is the time when he endeavours to prove an _alibi_; that some of the pistols carried to the Excise Office belonged to him, which pistols were afterwards found in his possession. They have likewise informed you that it was agreed upon that Brodie should be stationed within the door and Ainslie without, and this exactly corresponds with the testimony of James Bonar.

Brown and Ainslie are so consistent with each other and with the whole other evidence adduced, both real and circumstantial, that I am unable to discover a single discrepancy in the whole, excepting where Brown and Ainslie say that, after the robbery, they did not either of them see Brodie again that evening, but Smith’s maid said that they all met again in Smith’s house and supped there, and that Brodie supped along with them. This, however, does not appear to be a fact of any importance or that tends to discredit either of the witnesses, as it is evident that Smith’s maid has confounded the first and second meetings together.

But it is unnecessary for me to enlarge upon particulars which cannot have escaped your own observation, and I shall therefore conclude with remarking that you have in this case more direct evidence of the pannels’ guilt, corroborated by a greater variety of circumstances all coinciding in a most remarkable manner, than I remember to have met with in any other which has occurred to me in the course of my practice.

Gentlemen, I shall only further add that if the prisoner William Brodie, a person who from the nature of his employment had frequent opportunities of being introduced into the houses of others, has been guilty of the crime laid to his charge, and is allowed to escape punishment, the consequences to the inhabitants of this populous city may be of the most serious nature. But, gentlemen, the evidence is before you, and if, upon a fair and deliberate consideration of it, you are convinced of the pannels’ guilt, I can have no doubt that you will do justice to your country by returning a verdict accordingly.

* * * * *

Mr. John Clerk then rose to address the jury on behalf of George Smith.

Mr. John Clerk’s Address to the Jury.

[Sidenote: John Clerk]

Mr. CLERK--Gentlemen of the jury, it is now my duty to state the evidence to you for the pannel, Mr. Smith, and I shall trouble you with a very few observations only.

My unfortunate client is a very poor man; and although he was in a situation, before he was apprehended on suspicion of this crime, to support himself and his family upon the produce of his industry in his trade as a grocer, he has, in consequence of this unlucky affair, been reduced to absolute beggary, so that he has not been able to make those extraordinary exertions either in procuring evidence or counsel, which the more opulent prisoner has done. He is an Englishman, a stranger in this country, and in great straits for his life, and whatever is favourable in his character or conduct is unknown; while, on the other hand, everything that tended to blacken his character and fix guilt upon him has been brought forward. He has no one to say a good word for him, as that great villain, John Brown _alias_ Humphry Moore, has, who, you will remember, was so highly complimented by their Lordships when he left that box. But, I, as his most inexperienced and imperfect counsel, will try and do the best I can for the poor man.

The LORD JUSTICE-CLERK--Be short and concise, sir, at this time of the morning.

Mr. CLERK--Pray, your Lordship, let me proceed.

The LORD JUSTICE-CLERK--Well then, proceed, young man.

Mr. CLERK--It is easy to account from this cause, gentlemen, for what my Lord Advocate observed concerning the obscurity of my client’s history before the robbery of the Excise Office; and I imagine that no argument against him can be drawn from it. I know that I speak to a jury who will lay nothing into the scale against him that does not arise from the evidence which has been adduced.

My Lord Advocate has told you, gentlemen, that the guilt of my unfortunate client is so clear as to admit of no doubt, and it is in consequence of that opinion, I suppose, that his Lordship has made so few observations upon it. I cannot, however, yield my assent to this proposition; and I shall endeavour to show you, on the contrary, gentlemen, from a statement of such parts of the proof as affect my client, that the fair and legal evidence against him is incomplete and will not warrant a verdict for the Crown.

The evidence may be reduced to three distinct branches--his own declarations, which have been read; the direct evidence of the witnesses adduced for the prosecutor to the commission of the crime; and the real evidence of circumstances.

With regard to the declarations, the Lord Advocate has told

(_After Kay._)]

you, gentlemen, that they contain a variety of particulars which have not been read, and have been omitted by the consent of the pannel; and from this, his Lordship observed, an inference might be drawn that the declarations contain many more particulars little to the credit of the pannel. Gentlemen, an inference more candid, or at least more charitable, might, in my opinion, be deduced from the circumstance. It is easy to conceive the state of mind in which the pannel must have been when apprehended. Connected with those infamous men who were supposed to have committed the crime, a partner in their most dissolute scenes, no wonder, gentlemen, that he was struck with terror when seized upon an accusation of being joined in their guilt.

After having resisted for some time the impressions arising from his confinement, his panic most naturally increased almost to a delirium; a fit of temporary frenzy, an insanity, seized him, and he accused himself of an atrocious crime as the only means of safety. But this accusation is rejected by his cooler judgment, and accordingly he pleaded not guilty at this bar. In accusing himself in such a manner, the greater variety of crimes he laid to his own charge, the greater is the improbability of their being true, for it was folly to balance the merit of confessing a crime eagerly inquired after by the guilt of other crimes which were out of head. And it was folly of such a sort as to prove that the pannel was incapable of rational conduct; and thus the credit of his declaration, in so far as it injured himself, is in charitable reasoning considerably diminished.

But, at all events, gentlemen, it is sufficiently known and acknowledged, and it was even admitted--at least, it was not denied by the Lord Advocate himself--that the extrajudicial declaration of a pannel is not legal evidence against him. It is undoubtedly a circumstance in evidence, but not of weight to convict unless it be adminicled by other proof. This will be admitted, on all hands, to be the law of Scotland, and I shall make no comment on it.

If, therefore, it is shown to your satisfaction that the parole and circumstantiate evidence is either contradictory, inconsistent, or incredible, you will lay very little stress on the extrajudicial confessions of the prisoner.

And this leads me to the second branch of the evidence, or the attempt at a direct proof of the accession of the pannel, Smith, to the crime charged.

The first witness after those to the declarations, whose deposition affects the pannel Smith, is M‘Lean, Mr. Drysdale’s waiter. He is the nineteenth witness. I need not enter into the particulars of his evidence, since all of you must recollect that he could say nothing more than that Smith bought a ticket in the mail-coach for his wife; gave him in payment a five-pound bank-note, battered on the back, and received the change. It does not appear from whence the pannel had the note which he gave to M‘Lean, nor whether it was among the money which was stolen from the Excise Office or not.

John Clerk, Mr. Drysdale’s cashier, the twentieth witness, could not even say so much as M‘Lean. It does not appear from either of these depositions whether the paper on the table was that which was presented to them or not, as the Court determined that it is not properly described in the indictment, and on that account it cannot be used in evidence against the pannel.

I may therefore leave these witnesses, gentlemen; and I am persuaded that none of you will think that they said anything which militates against my client in the smallest degree.

Grahame Campbell, the seventeenth witness, was examined as to a variety of particulars, but her whole deposition, in so far as it regards the pannel Smith, amounts to no more than that he was in company with Brodie, Ainslie, and Brown that evening on which the Excise Office was broken into; that they supped together, ate herrings or a fowl, whilst she was in a back cellar; and upon her coming out of this back cellar the company had left the house, and Smith, her master, had likewise gone out; but there is no evidence of their having gone out together, and although they had, it does not follow that they went to the Excise Office together.

It would be very hard if a man should be suspected of a robbery merely because he leaves his house about the time that the robbery is committed, and in this case--there is little more; for it was by no means extraordinary that Brown and Ainslie should be with Mr. Brodie in Mr. Smith’s house that night, as they were there every night, always playing at cards and dice, and amusing themselves in company together.

And further, gentlemen, although they had not been drawn together by constant habits and the love of similar amusements, a good reason was given why Brown and Ainslie were constantly at the house of Smith. You were informed that these two men dined and supped there every day, that is, were day boarders in his house.

Putting all this together, I may dismiss this witness with the same observation which I applied to the former ones. As far as I understand her evidence, she said nothing which has a tendency to criminate my client.

I come next to the testimony of Ainslie and Brown. Gentlemen, you have heard a variety of objections stated to the admissibility of their evidence--all of which has been over-ruled by the Court. But notwithstanding the judgment of their Lordships, I must adhere to these objections and maintain that they ought not to have been admitted as witnesses. Gentlemen, I think a great deal of most improper evidence has been received in this case for the Crown.

The LORD JUSTICE-CLERK--Do you say that, sir, after the judgment which the Court has pronounced? That, sir, is a most improper observation to address at the outset to the jury.

Lord STONEFIELD--It is a positive reflection on the Court.

Lord HAILES--It is a flat accusation that we have admitted improper evidence.

Lord ESKGROVE--I never heard the like of this from any young counsel at the beginning of his career at this bar.

The LORD JUSTICE-CLERK--With these admonitions, go on, sir; proceed, sir.

Mr. CLERK--Aweel, my Lords, if I go on, I beg to assail at the outset the evidence of these two corbies or infernal scoundrels, Ainslie and Brown.

The LORD JUSTICE-CLERK--Take care, sir, what you say.

Mr. CLERK--Yes, my Lords, I say that they are both most infamous characters. Gentlemen, you should discard such vagabonds, and not rely on their evidence in any way; and if you knock out the vile brains of their evidence in this case, there is nothing else remaining on which you can convict my poor client, except his own very candid declarations which I have already explained to you. Gentlemen, these nefarious witnesses Ainslie and Brown, should have stood at this bar this night in place of my client, who was happy in his domestic privacy with his poor, honest, inoffending wife, whom you this day saw--and my heart bleeds for her. [Here there was some applause from the audience which was at once suppressed.] Gentlemen, Ainslie contradicts himself, and Brown is not to be believed. With respect to this said Mr. John Brown _alias_ Humphry Moore, you had it out of his own mouth that he was a convicted felon in England, and I say to you that no convicted felon ought, by the good and glorious law of Scotland, to be received as a witness in this or any other case in the British dominions.

[Great applause from the audience.]

MACERS--Silence in Court.

The LORD JUSTICE-CLERK--Mr. Clerk, please restrict your reflections. The Court have admitted the witness.

Mr. CLERK--Yes, my Lords, I know that very well, but your Lordships should _not_ have admitted him, and of that the jury will now judge.

The LORD JUSTICE-CLERK--This is most indecent behaviour. You cannot be allowed to speak to the admissibility; to the credibility you may.

Lord STONEFIELD--This young man is again attacking the Court.

Mr. CLERK--No, my Lords, I am not attacking the Court; I am attacking that villain of a witness, who, I tell your Lordships, is not worth his value in hemp.

The LORD JUSTICE-CLERK--The Court, sir, have already solemnly decided, as you know, on the objections raised by the Dean of Faculty, that in law the objections to these witnesses should be repelled, and they were repelled accordingly; therefore you should have nothing more to say to us on that point.

The DEAN OF FACULTY--If it will satisfy Mr. Clerk, I can assure him that I will plead on this point to the jury, waiving all objections to the admissibility, which it may be rather irregular to plead after the decision of the Court.

The LORD JUSTICE-CLERK--Dean of Faculty, I know you will attempt nothing that is improper.

Mr. CLERK--But, my Lords, the jury are to judge of the law as well as the facts.[23]

The LORD JUSTICE-CLERK--Sir, I tell you that the jury have nothing to do with, the law, but to take it _simpliciter_ from me.

Mr. CLERK--That I deny.

[Consternation in Court.]

Lord HAILES--Sir, will you deny the authority of this High Court?

Mr. CLERK--Gentlemen of the jury, notwithstanding of this interruption, I beg to tell you, with all confidence and all respect, that you are the judges of the law as well as the facts. You are the judges of the whole case.

The LORD JUSTICE-CLERK--You are talking nonsense, sir.

Mr. CLERK--My Lord, you had better not snub me in this way. I never mean to speak nonsense.

The LORD JUSTICE-CLERK--Proceed--gang on, sir.

Mr. CLERK--Gentlemen, I was telling you that this infernal witness was convicted of felony in England, and how dare he come here to be received as a witness in this case?

The LORD ADVOCATE--He has, as I have shown you, received His Majesty’s free pardon.

Mr. CLERK--Yes, I see; but, gentlemen of the jury, I ask you, on your oaths, can His Majesty make a tainted scoundrel an honest man?

[Great applause in Court.]

The LORD JUSTICE-CLERK--Macers, clear the Court if there is any more unruly din.

The LORD ADVOCATE [interposing and addressing Mr. Clerk]--Sir, permit me to say, after this interruption, that the prerogative of mercy is the brightest jewel in His Majesty’s Crown.

Mr. CLERK--I hope His Majesty’s Crown will never be contaminated by any villains around it.

[Sensation in Court.]

The LORD JUSTICE-CLERK [to the Lord Advocate]--Do you want his words noted down?

The LORD ADVOCATE--Oh no, my Lord, not exactly yet. My young friend will soon cool in his effervescence for his client.

The LORD JUSTICE-CLERK [to Mr. Clerk]--Go on, young man.

Mr. CLERK--Gentlemen of the jury, I was just saying to you, when this outbreak on the bench occurred, that you were the judges of the law and of the facts in this case.

The LORD JUSTICE-CLERK--We cannot tolerate this, sir. It is an indignity to this High Court--a very gross indignity, deserving of the severest reprobation.

Mr. CLERK--My Lords, I know that your Lordships have determined this question; but the jury have not. They are judges both of fact and of the law, and are not bound by your Lordships’ determination, unless it agrees with their own opinion. Unless I am allowed to speak to the jury in this manner, I am determined not to speak a word more. I am willing to sit down if your Lordships command me. [Here Mr. Clerk sat down.]

The LORD JUSTICE-CLERK--Go on, sir; go on to the length of your tether.

[Mr. Clerk then rose and resumed his address.]

Mr. CLERK--Yes, gentlemen, I stand up here as an independent Scottish advocate, and I tell you, a jury of my countrymen, that you are the judges of the law as well as of the facts.

The LORD JUSTICE-CLERK--Beware of what you are about, sir.

[Here Mr. Clerk again sat down.]

The LORD JUSTICE-CLERK--Are you done, sir, with your speech?

Mr. CLERK--No, my Lord, I am not.

The LORD JUSTICE-CLERK--Then go on, sir, at your peril.

Lord HAILES--You had better go on, Mr. Clerk. Do go on.

Mr. CLERK--This has been too often repeated. I have met with no politeness from the Court. You have interrupted me, you have snubbed me rather too often, my Lord, in the line of my defence. I maintain that the jury are judges of the law as well as of the facts; and I am positively resolved that I will proceed no further unless I am allowed to speak in my own way.

The LORD JUSTICE-CLERK--Then we must now call upon the Dean of Faculty to proceed with his address for the prisoner Brodie, which the Court will hear with the greatest attention. [Here the learned Dean shook his head, as if declining to do so.] Very well. The Court will proceed now and discharge its duty.

[His Lordship was then about to address the jury in his final charge.]

Mr. CLERK [starting to his feet and shaking his fist at the bench]--Hang my client if you daur, my Lord, without hearing me in his defence!

[These remarkable words produced the greatest sensation in Court; the judges retired to the robing-room to hold a consultation; but on their returning to Court, the Lord Justice-Clerk merely requested Mr. Clerk to proceed with his speech. Mr. Clerk then continued his address without further interruption.]

Mr. CLERK--I say, gentlemen, I adhere to all the objections stated on the proof, both to the admissibility and to the credibility of these witnesses.

On the other hand, it is obvious, that if they are to be listened to as good and unexceptionable witnesses, their evidence goes to prove the guilt of my client in the clearest and most unequivocal manner; so that the questions come to be, how far are they admissible at all? and how far are they credible? Is their evidence to be laid aside altogether? and if not, to what extent is it worthy of belief?

Gentlemen, before I was interrupted, I was going to observe, that in this branch of the evidence my cause is the same with that which is to be supported with so much greater abilities by the Dean of Faculty; and of consequence it would be unnecessary and even impertinent in me to take up your time in arguing at large upon the subject. I have followed the same conduct in the other particulars of the proof, where the pannels are in similar circumstances; and I have only to desire you to apply the same principles to both cases.

Gentlemen, I come now to the real evidence. Some of the witnesses deponed that Mr. Smith was taken up to Brodie’s buildings, and there some of the articles on the table were found, but nothing in this part of the evidence is inconsistent with the innocence of Smith, who might be better acquainted with Mr. Brodie’s shop and yard than the officers, without being a partner in the crimes of which he (Brodie) might be guilty.

The most material circumstance in the proof relates to the finding of the iron crow, the curling irons, and key, in the hole of a wall, and for that reason I reserve it for the last.

There are two capital defects in the evidence of this fact. First, a glaring contradiction concerning the place where the things were found; and, secondly, as glaring a contradiction in the account of what passed at finding them. Middleton says that they were found in Warriston’s Close; Murray, on the contrary, that they were found in Allan’s Close. Middleton told you expressly that the pannel put his hand into the hole in the wall and drew them out; but Murray said that this was impossible, because he had his hands tied behind him: and this witness farther added that he himself drew them out.

(_After Kay._)]

These are no common mistakes; and I ask, what reliance can be had on evidence where two such falsehoods appear within the narrow compass of a few questions? I am willing to grant that there are slight inaccuracies which rather tend to confirm the truth of a deposition than to render it suspected; but you cannot suppose errors like these concerning such marked and important circumstances, as make an impression on the memory equally indelible with any part of the story, and which in this instance constitute its leading features.

I say there must be a radical error here, either in the candour of the witnesses, or in the events which they have related. They are either perjured, or have been deceived, about the articles on your table; and in either case their testimony is good for nothing. It is plain that the iron crow was not found both in Warriston’s Close and in Allan’s Close; the prisoner was not both fettered and unfettered at the same time; and it matters not to me which of the witnesses has been deceived. Whoever it is, it cannot be determined on this trial that any of them spoke the truth; and of consequence the evidence of both must be laid out of consideration.

At all events, gentlemen, what have you more than two solitary witnesses to two contradictory facts, instead of two witnesses to one consistent event? This can never be reckoned good and legal evidence on a trial for life, where equity as well as expediency require the most scrupulous accuracy.

Gentlemen, I have now stated what appear to me to be the most material circumstances in the proof. I have commented on the depositions of the witnesses in so far as they may be thought to criminate my client; and without farther detaining you, I beg leave to conclude by repeating the proposition which I have endeavoured to maintain, that there has not been adduced on this trial sufficient legal evidence to warrant a verdict against Mr. Smith.

* * * * *

At three o’clock in the morning the Dean of Faculty rose to address the jury on behalf of William Brodie.

The Dean of Faculty’s Address to the Jury.

[Sidenote: Dean of Faculty]

The DEAN OF FACULTY--Gentlemen of the jury, the present trial exhibits in the person of William Brodie, in whose behalf I now address you, a singular phenomenon in the moral world: a man descended of an ancient and honourable family, left by a respectable father in opulent circumstances, and very far from indigence and temptation; educated in the manners and habits of a gentleman; bred to a reputable occupation, at the head of which he has frequently stood; and in virtue of that situation been a member of the Town Council of this great city; who, for a long series of years, has maintained an irreproachable character in society, and has often filled offices of honour and trust among his fellow-citizens, the duties of which he has discharged with attention and fidelity, standing at the bar of this High Court, accused of having leagued himself with the meanest and most abandoned of mankind, in the commission of a crime not less marked with moral depravity on the part of the perpetrators, than fraught with injury and danger to the public.

God forbid, gentlemen, that I were capable of wishing to press on your minds these circumstances in my client’s once honourable and happy situation, with a view of creating in your minds an undue bias in his favour. Though your discernment were not, as I know it is, sufficient to secure you against the effect of such considerations, my feelings as a man, and a sense of my professional duty, would not allow me to resort to such arguments in opposition to justice, which is no respecter of persons.

Yet, gentlemen, there is a view in which I am entitled to call your attention to the former situation and circumstances of this unfortunate gentleman; for unfortunate I must call him, be the result of the present trial life or death. In deciding on evidence in support of a criminal charge, the former character of the prisoner, his probable temptations to commit the offence with which he is charged, must ever be a material consideration. A poor, forlorn wretch, without fortune, without friends, without education, without occupation, is he who is naturalised to support himself by private or open depredation on the public; and when such a person is accused, the minds of a jury, though they must presume his innocence, do not revolt at the charge as improbable. The situation of such men is charmingly described by an eloquent poet of this country--

The needy man who has known better days;
One whom distress has spited at the world;
Is he whom tempting fiends would pitch upon
To do such deeds, as make the prosperous men
Lift up their hands and wonder who could do them.[24]

My client was no such man. No circumstance in his situation has afforded a temptation to be guilty of such wrongs to risk his name, his life, for the acquisition of what his fortune, his profession, were fully adequate, honestly and fairly, to procure him.

In these circumstances you are called upon to examine the evidence in this case with the nicest accuracy. You are bound by more than common ties to require the fullest and most explicit proofs of such enormous guilt, so improbable, so unprecedented, before you find a verdict against a man who was once upon the same respectable footing with yourselves, and supposed to be governed by the same honourable principles.

But, gentlemen, while I mentioned the situation which Mr. Brodie once held in life, his family, his fortune, his friends, I must admit, however degrading to him the acknowledgment may be, that this unhappy man, instead of pursuing with industry the useful and reputable occupation by which his own fortune was acquired, and by which it might have been preserved, and with it his own peace, honour, and happiness, has for years past so far yielded himself to idleness and dissipation, and to what in the present age is too often the sad concomitant of such habits, an unhappy itch for gambling, as to lead him into the company of persons with whom, for any other purpose, he would have disdained to associate.

The unfortunate prisoner, Mr. Brodie, is by no means singular in his attachment to this vice; nor is it at all confined to the lower stations of life. People of the highest rank scruple not, in the course of their gambling, to mix with highwaymen and pickpockets, and to descend to practices of chicane and cunning which, in any other situation, they would themselves abhor. It was but the other day that a gentleman of Brighthelmstone, reputed worth three thousand pounds per annum, was detected in the very act of using loaded dice, and was obliged to fly the country for it; which is exactly Mr. Brodie’s situation.[25]

But the gaming table levels all distinctions. There the high and the low, the rich and the poor, meet together. There, I admit--indeed, I have thought it necessary to prove the fact, in order to account for so strange a connection, from the bare existence of which strong arguments of his guilt have this night been drawn--there, I say, I admit that this unhappy, this misguided man, learned to endure, and at last to court, the society of those abandoned, those profligate wretches, who have this day come forward, in the most suspicious circumstances, to swear him their accomplice in the felony charged in the indictment.

But though the prisoner at the bar acknowledges with contrition these habits of folly and dissipation, and the disgraceful connection in which, to that extent, it unhappily involved him, yet he trusts it will appear, from a full consideration of the evidence, that

The very head and front of his offending
Has this extent; no more.

And he trusts to the candour and justice of you, gentlemen of the jury, that you will not allow this unfortunate connection to go further in your mind, as an ingredient of proof, than it justly ought; and far less to let suspicions supply the want of that legal evidence which the law of this free and happy country requires, in order to affect the life of any of its citizens, however dangerous to society the crimes charged may be, and however interested the public may be that they should be convicted.

Gentlemen, with these general observations in view, I intreat you to attend to the proof on which a verdict is asked from you against the life of this unfortunate man.

The whole evidence before you consists of three parts. In the first place, the evidence of Brown and Ainslie, who have acknowledged themselves guilty of the crime in question, and are the sole witnesses brought forward directly to fix the guilt on the prisoner; in the second place, in opposition to this there stands the direct proof of _alibi_, established by a number of unexceptionable witnesses; and lastly, the evidence arising from the various circumstances which are said to support and confirm the direct testimony of Brown and Ainslie, which, independent of such confirmation, is admitted to be deserving of little credit. Upon each of these parts I shall submit to you some remarks, trusting that you, gentlemen, and the honourable counsel on the other side of the bar, will correct me should I happen in any instance to mistake the import or nature of that proof which has been led in your hearing.

Upon the first part I have already, in the course of the trial, anticipated almost everything which relates to the evidence of Brown and Ainslie; I should therefore be ashamed to trouble you with more on that subject. I do not say that their being themselves accused of the crime in question should be a ground for totally rejecting their testimony, which the Court, proceeding on the present law and practice of Scotland, has allowed to be received. But this I will with confidence maintain, that the evidence of persons who, in the very outset of their testimony, confess the most enormous crimes, and thereby cover themselves with infamy as completely in the eye of reason as if they were convicted by sentence of a jury, can in no case be entitled to much credit, and when standing by itself is deserving of none at all.

But it is not on this alone that I impeach the testimony of these bad men; they stand in a situation different, very different, indeed, from other witnesses of that description--a situation to which I again entreat your best attention.

When Ainslie was first examined before the Sheriff, and for a long time afterwards, he persisted in maintaining the innocence of Mr. Brodie; nor was it till he learned that Brodie was apprehended, and till he was informed that to criminate him was the only means of saving his own life, that he uttered a syllable tending to infer the guilt of my client. This we offered to prove in the course of the trial, but a proof was refused by the Court.

The first testimony, therefore, which he gives in the matter is deliberately false. Is his after-information, or the evidence he has given this night, the better to be believed that it was wrung from him by the fear of death, or brought out of him by the hopes of life? It is vain to say that there is no proof that such means were used with him. There is real evidence that under these impressions he must have been when he delated Mr. Brodie. Well did he know that Mr. Brodie, from his unhappy connection with him and his associates, was suspected of being accessory to their guilt. He was not so blind as not to see that to the public prosecutor, whose duty it ever is to choose from various associates those whose situations make them the most striking examples of public justice, to accuse and convict such a person as Mr. Brodie was effectually to secure his own life.

It was a situation too powerful to be overcome even by much more virtue than the witness could boast of, and, unhappily for Mr. Brodie, his connection with the witness in scenes of another kind, while it suggested the accusation, procured it credit. I cannot ask you to believe without evidence that such a plot was laid, nor am I entitled to charge it. But surely witnesses in such circumstances should not lightly be believed. And doing so may lead to consequences of the most dreadful nature, as every man, unfortunate enough to have been innocently, perhaps, the companion of villains, may thus by falsehood and treachery be made their substitutes to the offended laws of their country. Ainslie’s evidence, therefore, in such a situation, is not only suspicious, but altogether incredible.

The evidence of Brown is, if possible, still more unworthy of credit than that of Ainslie. A more hardened and determined villain can hardly be figured. You saw, gentlemen, the manner in which he gave his evidence. He appeared more like a man rehearsing and expatiating upon the patriotic acts he had performed for the good of his country than a criminal unfolding the black history of his own iniquities. You have it in proof that he was not only accused but convicted of a former felony, and sentenced to be transported; that a presentment by the grand jury stands yet against him for another felony; and that he was banished for theft by a sentence of the Justices of Peace of Stirlingshire, proceeding on his own confession.

He has no doubt received His Majesty’s pardon. It has been obtained for him, at a very great expense, for the sole purpose of enabling him to be a witness in this cause. But though the Court has determined that this pardon, the crimes being committed in England, rehabilitates this man, and that his evidence is admissible; yet no pardon can restore his credibility, or render him an honest man. The pardon cannot alter the nature of the criminal; “can the Ethiopian change his skin, or the leopard his spots?” Is it possible that a King’s pardon can restore purity of heart, rectitude, and integrity? Can “a piece of parchment with a seal dangling at it,” a phrase employed on another occasion, perhaps with less force of application, turn wickedness into honesty, and transmute infamy into honour? The King has no such prerogative; this is the prerogative of the King of Kings alone, exerted only towards repenting offenders; and even with Him such change may well be accounted a miracle.

In the eye of reason, therefore, Brown is still a notorious convicted felon, an infamous, unrepenting villain, who, till the 28th July last, the date of the pardon, would not have been received as a witness even in a twopenny-halfpenny cause between man and man. And yet upon this evidence is now to depend the reputation and life of a once respected citizen! These things need only to be mentioned, gentlemen, in order to be fully felt, nor will I insult the understanding of so intelligent a jury by dwelling upon them for a moment longer.

But this, gentlemen, is not all. Mark the game which this man had to play, and in what manner he has played it. He had not, like Ainslie, only his accession to this offence to shake himself loose of; a sentence of transportation hung over his head. This sentence he has not obeyed; and the penal certification is in England, I suppose, as it is with us, capital. By accusing a person of such consequence as to make it worth the while of the servants of the Crown to make him King’s evidence, he not only freed himself from trial for the offences committed here, but secured a pardon for the offence of which he stood convicted, as it was necessary, to qualify him to be a witness, that his former conviction be done away, and all his former crimes washed off in the fountain of Royal favour. A bribe of such magnitude flesh and blood could not resist. Thus, gentlemen, in addition to the profligacy of character, to the load of infamy under which this man laboured, you see the most powerful engines which can set in motion the human soul employed to drag him forward to an accusation which he had not originally made, and which, but for this, his conscience, hardened as it is, might have prevented him from ever making.

The Lord Advocate was pleased to commend this witness, as having spoken out from a desire of doing justice and being of service to his country. Did his appearance this day indicate any such feelings? Do not the circumstances in which he brought forward this accusation show the baseness of his views? He has sworn that at first he did not accuse Mr. Brodie. No; it was not till his return from England that he took this course, when, finding that the sacrifice of mean victims was not leading to any steps being taken to procure him a pardon, and that the other unhappy prisoner at the bar had confessed his own guilt, but without accusing Mr. Brodie, he (Brown) gave the lie to his first declaration by criminating that gentleman; and the pardon, which has this day procured admission to his testimony, was obtained for him. The measures of the public prosecutor in this respect were highly proper, believing, as he no doubt did, the testimony of this man. But I leave it to you, gentlemen, to consider whether it is possible for any witness to stand in more suspicious circumstances; and whether, as several of the judges have told you, that had his conviction been in Scotland instead of England, they would have rejected his testimony, notwithstanding the pardon, you should not so lay aside his evidence altogether in justice to the prisoner, who ought not to suffer for a distinction which, however founded in law, is contrary to common sense or reason when applied to the credibility of the witness, of which you alone are the judges.

I come now, gentlemen, to the direct proof of _alibi_. And here I readily confess that a proof of _alibi_ is generally resorted to only upon the most desperate occasions; and that such proof, when it is in contradiction to facts clearly substantiated by real evidence or parole testimony beyond all suspicion, must yield thereto. But, gentlemen, this is by no means the case here. The _alibi_ is established by the most direct and complete proof, in opposition to which nothing direct appears in evidence, unless the testimony of two witnesses, entitled to no credit from their characters, and swearing in circumstances the most suspicious. There are, indeed, other circumstances proved; with regard to which I am to address you afterwards. But these, if the depositions of Brown and Ainslie be laid aside, must appear to you so light when weighed against this evidence of _alibi_ that they must kick the beam. The _alibi_, gentlemen, is thus proved.

You have, in the first place, the evidence of Mr. Sheriff. This gentleman, no doubt, is brother-in-law to Mr. Brodie; and it may be said that this circumstance renders his evidence suspicious. But Mr. Sheriff, gentlemen, is well known to many of you as a man of character and reputation, as a person of unblemished conduct, in a rank of life equal to many of yourselves. And I appeal to you, gentlemen of honour as you are, whether any of you, judging of this witness, as you would wish to be judged of yourselves, would for a moment indulge the thought that even to save the life of his wife’s brother he would deliberately come forward to cast away his own soul? This gentleman deposes most expressly that he dined at Mr. Brodie’s house on Wednesday, the 5th of March, the day on which the Excise Office was broke into, in company with two ladies and another gentleman; that he staid there till about eight o’clock; that Mr. Brodie during all that time was never absent from his company; and that he even asked the witness to stay supper.

Here is a direct contradiction to the evidence of Brown, who swore that Brodie called at Smith’s in the afternoon of that Wednesday. Which of the two, gentlemen, are you to believe? But it is needless for me to ask the question. Were even the former circumstances urged against the credibility of this man’s evidence not sufficient, you have him here convicted of the grossest perjury, if Mr. Sheriff is to be believed; for that gentleman has expressly sworn that they dined at a quarter past three o’clock, and that Mr. Brodie never left the company while the witness staid, which was till near eight o’clock.

It was asked on the other side of the bar how Mr. Sheriff, at this distance of time, came to recollect so precisely that it was upon Wednesday, the 5th of March, he dined with Mr. Brodie? The answer is obvious. It was publicly known upon the Monday following, and the witness has sworn he knew it, that Mr. Brodie was accused of being concerned in the robbery of the Excise Office. Was it not then natural--nay, would not the contrary have been altogether incredible--that Mr. Sheriff, having only four days to look back, should be able to recollect in a matter that touched so deeply the character, and might affect the life, of so near a relation, that he dined with him that very day on which that felony was perpetrated? Which of you, gentlemen, could not at this time recollect where you dined last Saturday or Sunday, and the precise time at which you left the company?

If, therefore, Mr. Sheriff is to be believed, and why he should not no reason can be suggested, the prisoner could not be present, as Brown and Ainslie have deponed he was, prior to the time Ainslie left Smith’s to go to the Excise Office; which Ainslie has fixed at a quarter before eight; nor could he be with them at Smith’s at all, as Brown swears they all left it a quarter of an hour after Ainslie, and immediately joined him at the Excise Office.

But Jean Watt depones that Mr. Brodie came to her house at eight o’clock on the Wednesday evening, when the eight o’clock bell was ringing; her reason for recollecting these circumstances, too, is a very good one, it being the last time that ever Mr. Brodie slept in her house. Her evidence is corroborated by the servant-maid, who depones exactly to the same purpose. And there is a circumstance, gentlemen, in the deposition of this witness which well merits your attention. Upon being asked what bell was ringing, she said it was the bell of the Tron Church. Here the counsel on the other side of the bar appeared to hug themselves upon the mistake into which they supposed she had fallen, by mentioning a bell which, from the distance, she could not possibly hear. But the matter was cleared up in a moment, when, on being asked where the Tron Church was, she replied, in the Parliament Close. This, gentlemen, is the natural simplicity of truth; this proves her to be no tutored witness, brought forward to rehearse a tale made up beforehand, or to assign fictitious causes of knowledge.

Both these witnesses concur in deposing that Mr. Brodie staid the whole night until next morning at nine o’clock in Mrs. Watt’s house; and their evidence is corroborated by that of Helen Alison, who saw him coming down stairs at nine on the Thursday morning. The evidence of this good woman, Helen Alison, is accompanied with circumstances the most natural and striking, and is confirmed by James Murray, one of the sheriff-officers employed in the search on the Thursday morning, who swears to her having at that time mentioned Mr. Brodie’s having been at Jean Watt’s all the night of the Wednesday and morning of the Thursday preceding.

The whole of this evidence, taken together, affords a proof the most conclusive that Mr. Brodie could not be present at the robbery of the Excise Office. You find him in his own house till the hour of eight; from that hour till nine on the Thursday morning you find him in the house of Mrs. Watt. It is impossible then that he could have been at Smith’s a considerable time before the hour of eight, or that he could have been present at a robbery which took up an hour in the perpetration.

It was said, on the other side of the bar, that it was of no avail to prove an _alibi_ which was merely confined to the city. This is strange doctrine, gentlemen, and perfectly new. That an _alibi_ may be proved with greater certainty when the distance is greater than when it is small, I do not dispute; but does it follow that it may not be proved though the distance be ever so short? Suppose a felony to have been committed this day under that window, and that I should be accused of having been an actor in it. Could not I, gentlemen, bring sufficient evidence of an _alibi_, although within a few yards of the place where it was perpetrated? Could I not substantiate, by this numerous and respectable assembly, that I was here from nine in the morning till the present hour, employed in such a manner as to exclude the possibility of my being any way concerned in such felony? And could it be objected to such evidence that I had not proved myself absent from town, and that my _alibi_ was confined to within a few feet of the place where the fact was committed?

It is to no purpose to say that the witnesses may not be accurate as to time, and that, making a small allowance for mistakes, the facts they swear to may be true, consistently with the evidence of Brown and Ainslie. For supposing Mr. Sheriff to have been mistaken as to the precise time he left the prisoner that night, he could not be mistaken as to his being constantly with him from the time of dinner till the time he left him, whatever it was; and this alone must defeat the testimony of Brown and Ainslie, who swear to the prisoner’s having been there in the afternoon long before the meeting, previous to their setting out for the Excise Office, which cannot possibly be true, if Mr. Sheriff’s evidence is to be believed.

Here, then, is the most unequivocal and positive proof that the prisoner, Mr. Brodie, could have no accession whatever to this robbery of the Excise Office, unless you, gentlemen, shall conclude that the whole of these witnesses, consistent as they are and corroborated by circumstances the most simple and natural, have perjured themselves wilfully and deliberately; while Brown and Ainslie, witnesses, from their character, unworthy of all belief and swearing in circumstances the most suspicious, are deponing in the utmost purity of truth and fairness.

Thus, then, gentlemen, the case would stand were it to be decided on the direct testimony of the witnesses on both sides weighed against each other. The circumstantiate proof, however, still remains to be considered, and I am free to confess that if it shall appear to you that these circumstances afford a chain of real evidence, either sufficiently independent of the direct depositions of Brown and Ainslie to prove the prisoner’s guilt, or so fully to confirm their testimony as to remove the cloud of suspicion that hangs upon it, as to convince you that they must be speaking the truth and the witnesses to the _alibi_ the reverse, your verdict ought to be against the prisoner.