Chapter XII: Introduction (10)

But I humbly maintain that not any of those circumstances nor all of them put together are sufficient to entitle the evidence of such witnesses to credit, when the life of a man is at stake, even if the proof of _alibi_ were out of the question, and far less in the face of that proof of _alibi_, which, if the witnesses have not deliberately perjured themselves, excludes even the possibility of the prisoner’s guilt. For I hope to show that there is not one of those circumstances, suspicious as they may appear, that cannot rationally be accounted for without supposing the guilt of the prisoner, Mr. Brodie; nay, that some of them are totally inconsistent with the supposition of his having been guilty of this offence, whatever other errors his fatal connection with these miscreants may have led him into.

In considering the circumstantiate evidence, gentlemen, you are never to lose sight of the direct proof I had the honour just now of stating to you as to the _alibi_; and as each circumstance passes under your review, I entreat you to ask yourselves this question, whether it is so clear, so decisive, so totally irreconcilable with the possibility of the prisoner’s innocence as to make the suspicious testimony of those infamous witnesses outweigh the proof of _alibi_, founded on the depositions of persons liable to objections on no reasonable suspicion?

The first circumstance founded on is the prisoner’s connection with the perpetrators of this crime. I readily grant that it is clear from the evidence that Mr. Brodie was in habits of too great intimacy with these men. I acknowledge that he appears to have been too deeply engaged in courses of gambling and dissipation in their company and society. That his association with such characters was dishonourable to the reputation of my client, I do not deny.

But, gentlemen, this gambling connection is far from being any proof of his share of the guilt of the crime now charged against him and the other prisoner at the bar, though this circumstance, no doubt, gives possibility to a tale that, without it, would have been rejected at once as totally incredible. Had Mr. Brodie been in no way connected with Brown, Ainslie, and Smith, what could they have accused him in? When the hopes of life were held out to Brown and Ainslie, in order to procure a discovery of their confederates, however willing they might be to deceive the public prosecutor, they would have themselves seen that it was in vain to accuse a man as their associate who had never at any time been connected with them.

But though his having connected himself with them afforded a plausible colour to their charge, it does not follow that this connection affords either a proof or a presumption of Mr. Brodie’s guilt; it is to be considered rather as the cause of his being accused. Many other persons, otherwise very respectable, are known to have gamed in company with these very men, but would this have been sufficient to criminate them had Brown and Ainslie thought proper to give them also up as their confederates in this dark business? The folly of haunting, for any purpose whatever, the company of such men is great indeed, but to subject the party guilty to the consequence of every enormity of which such associates may accuse him, on their bare testimony alone, would be a punishment far beyond the offence, as such men would never fail to find some unhappy associate of better rank than themselves to substitute as a sacrifice to the public for crimes to which he had no accession.

The next circumstance founded on in corroboration of the evidence of Brown and Ainslie, is the alleged proof by the oath of Grahame Campbell that Mr. Brodie was present with the gang at the house of Smith on the night the Excise Office was broken into, and left it in their company. The veracity of this witness I mean not to dispute, but I maintain it to be impossible that, if she be speaking the truth, the facts she swears to could happen upon that night, or if she did, it must be fatal to the whole evidence given by Brown and Ainslie, as it contradicts them in the most essential particulars.

This witness indeed swears that one night--for she fixes no precise time--soon before Mr. Brodie left this place, he, Brown, and Ainslie met at Smith’s house before six o’clock; that they all left it about six; that between nine and ten they all returned; that they supped there, and remained about two hours. And she remembers particularly that Brown and Ainslie sat down to supper, but that Mr. Brodie stood all the time they ate their meal. But Brown and Ainslie expressly swore that, after coming out of the Excise Office, they did not see Mr. Brodie again that night, and that Brown did not meet with him till the Friday, when he for the first time got an opportunity of abusing him for having left his post. She differs from them also as to Mr. Brodie’s dress, which she says was, when he came, an old-fashioned black coat, whereas Brown says it was his ordinary black coat, and that he wore a white surtout above it. Both these opposite stories cannot be true, and consequently the young woman has deponed to what happened on a different night, and her evidence does not corroborate that of Brown and Ainslie; or, if she swears to that night, she swears to facts totally inconsistent with the truth of part of their evidence at least, and thereby destroys the credibility of the rest of it.

The Lord Advocate has told you that this witness must be mistaken with regard to their supping, because she has also said that they had ate some fresh herrings or cold fowl before setting out. I cannot, for my part, see how their having taken this collation early in the evening can be any reason for their not supping betwixt nine and ten. And, at any rate, though she could have mistaken the smaller circumstance of their eating or not eating after their return, it is utterly incredible that she should have recollected their all being at Smith’s together between nine and ten, and continuing together for two hours if, as Brown and Ainslie depone, they and Mr. Brodie never met that night after the time the two former went into the Excise Office.

The next circumstance founded on by the prosecutor is the departure of Mr. Brodie from this country, which is not only held out as a flight from justice, but as a flight applicable to this particular offence.

That the flight of a person accused of a crime may in some cases be a strong ingredient in a proof of his guilt, I readily acknowledge, but it is not necessarily so. If he has not been previously accused of that particular crime, and other reasons occur sufficient to account for his leaving his native country, the circumstance is at best equivocal.

In this case it cannot be denied that Mr. Brodie had strong reasons for taking this step separated from any consideration of guilt connected with this offence. His gambling connection with these men was too well known, and though nothing further could be proved against him, it must be a painful feeling for a man of any spirit to remain in that place where persons with whom he had been so intimate were taken up by public justice on charges of so heinous a nature. Joined to this, you find in evidence that a prosecution was depending before the magistrates of Edinburgh against my client for using loaded dice. I do not say, nor do I suppose that this prosecution was well founded, but the very report of such a charge, when added to the connection he had with these men, must have rendered his situation so disagreeable as to induce him to leave Edinburgh, at least for a time, or even to have resolved on settling in some foreign country, where his former folly and dissipation were unknown and where his professional skill might enable him to repair his shattered fortune. What were the real motives of Mr. Brodie it is not for man to judge, but, if his actions were equivocal, you are bound in charity, in justice, in humanity, to put the most favourable construction upon them.

Yet even when he abandoned this country, he does not appear to have conducted himself as one who never intended to return, or who was afraid of any consequences to himself, beyond the pain of enduring in his own country the loss of honest fame. He corresponds, as you find, with his friends in Edinburgh, and the whole tenor of his conduct seems to be such as might have been pursued by a person who intended only to retire out of view for a short time, till the clamour of a prejudiced public against him should cease. A flight under such circumstances and conducted in this manner can never be held as proof of guilt, or even as a circumstance sufficient to stamp credibility on the testimony of a witness base and profligate beyond all example, deponing under the strongest temptations to falsehood, unsupported by the direct testimony of any other witnesses, and directly contradicted by a proof of _alibi_, proved by a cloud of witnesses altogether free from suspicion.

With regard to the circumstance attending Mr. Brodie’s departure, his conduct in London, on shipboard, and on the Continent, the evidence adduced by the prosecutor is in the highest degree lame and inconclusive. Indeed it ought totally to be rejected as not the best the prosecutor had it in his power to bring; and as to his being brought back to this country, the evidence is very defective. The evidence of Mr. Longlands consists chiefly of hearsay. Those persons who apprehended Mr. Brodie, who conducted him back to this country, are not produced as witnesses. Mr. Walker, who is said to have protected him in London; the owners of the ship, who are said to have altered the destination of the vessel to aid his flight; none of them are brought forward. And as hearsay evidence is only competent where the principal witness is dead or cannot be had, neither of which is here the case, I submit to you, gentlemen, whether any part of this evidence ought to have been received or ought now to be regarded by a jury.

I come now to the evidence arising from the letters said to be written by my client. Gentlemen, urgent as his case may be, I do not wish to strain anything or to evade any part of the proof. I do not mean to contest that these letters are of the handwriting of Mr. Brodie, although this point has been but slenderly proved. My client has not himself denied them; I shall admit them to be his. Now these letters contain nothing which can bring home to him the present charge. They prove that he was avoiding his native land; that he was anxious for the fate of these abandoned men; that he was afraid they might accuse him; but he expressly supposes a false accusation--an accusation that might equally involve the innocent persons he was writing to. In one passage he expressly asserts his own innocence. Yet the letters are written in full confidence, and without any seeming intention to hide anything.

It is true, indeed, that in one of these letters he says that he had no accession to any of their depredations except the last, which is laid hold of as a direct acknowledgment of the crime. But, gentlemen, supposing the word depredation could not be otherwise explained, where is the evidence that the crime in question was the last of which these abandoned ruffians were guilty? and if there were such, it would not be conclusive. The word depredation is generic, and may as well apply to the depredations of the gaming-table as to acts of theft or house-breaking; and as there is but too much reason from the evidence, particularly the process at the instance of Hamilton for defrauding him by false dice, to believe that this unhappy man was not altogether free from accession to depredations that may at the gaming table have been committed by those persons against such as were unfortunate enough to fall into their hands, why should you, gentlemen, to reach the life of a fellow-citizen, construe so equivocal an acknowledgment, couched in so general terms, as applicable to a particular act of guilt; for the proof of which, against this prisoner, you have nothing but the most exceptionable of all human testimony, contradicted by the most direct proof of _alibi_.

But this is not all. The terms of this acknowledgment, as repeated in the last of these two scrolls, exclude even the possibility that the prisoner could refer, or mean to refer, to the breaking of the Excise Office as the depredation to which he had an accession; for he expressly says that he lost ten pounds by it; but how, in the nature of things, is it possible that if he had been concerned in that affair he could have thereby lost ten pounds, or any sum whatever, seeing Brown and Ainslie have both sworn that the money was fairly divided, and that each of the parties concerned received four pounds and some old shillings for his share? To what other act of depredation, and whether to any committed at the gaming table, these words refer, it is not for me to suggest nor are you, gentlemen, bound to inquire; though it would seem that depredations at the gaming table are the only attacks upon the property of our neighbour that can be attended with patrimonial loss.

It is enough to exclude these scrolls, and also the letters, from operating as evidence of the prisoner’s accession to the crime with which he is charged, that the only accession they acknowledge is inconsistent with the possibility of his guilt; and if he has been so far misguided as to have been concerned with those infamous persons in anything beyond that gambling connection, which he has all along admitted, it must have been some other offence not yet discovered, or not hitherto made the subject of prosecution; which, not being charged in the present indictment, could not have affected the prisoner, though a proof of it had come out in the course of his trial.

The only remaining circumstance brought in aid of the direct parole testimony is the different articles which have been found in the house of the prisoner or elsewhere, and which the prosecutor has attempted to connect with the commission of the act which is the subject of the libel. On this head I shall detain you but a moment, there not being the shadow of evidence to connect any one of them with the prisoner so as to afford a presumption, and far less evidence, of his guilt.

A dark lanthorn was found in his house, but there is not the appearance of evidence that it was used at the perpetration of the crime in question, or was ever out of Mr. Brodie’s own house. The utensil itself is perfectly innocent. The useful part of it was found in the cock-pen, and it is well known that cocks are chiefly fed by candle-light. There were keys and pick-locks found in his house, but it was proved that these are the ordinary implements of his trade, and not one of those have been sworn to as having been used by the villains, who best knew and described the whole mystery of the iniquity. Nay, the only instruments that were used on that occasion in opening the locks or forcing the doors were found at the bottom of Allan’s Close or Warriston’s Close by the officers of justice, led by the other prisoner Smith to the hole in which they were concealed; and not one of those articles, being two crows, a key, a pair of curling irons, a coulter of a plough, and two wedges, is proved to have been in any way connected with Mr. Brodie, the three first of which Brown and Ainslie admit were carried to the scene of action by Brown and Smith, while the two last were stolen by themselves from a field near Duddingston.

True, indeed, it is, that a pair of pistols, which these witnesses say were the property of the prisoner, Mr. Brodie, were found in a fireplace in his house; but it is proved by the same witness that these pistols had not been in the prisoner’s hands for a month before, when he had lent them to Smith; that they were in Smith’s possession on the night libelled; and the sheriff-officers have proven that it was Smith himself who dug out these pistols in Mr. Brodie’s house, which demonstrates that it was he who hid them there--a circumstance not very reconcilable with his considering Mr. Brodie as an accessory, as in that case he could not have chosen a more improper place to conceal them. In case of discovery, it would become the object of the earliest and most anxious search.

Gentlemen, these observations upon the proof on both sides I submit to your most careful and deliberate consideration. You have on the one side a direct and positive proof of _alibi_; which, if the witnesses are not foresworn, must preclude the possibility of the prisoner’s guilt; and that these witnesses have departed from the truth there is not the shadow of reason to suspect. On the other hand, the whole direct evidence against the prisoner is the testimony of two witnesses, who, besides being destitute of all right to be believed as witnesses in any case, have been brought to give evidence in the present in circumstances of the very strongest temptation to convict my unhappy client whether innocent or guilty, as, but for their having accused him, one or both of them must have stood at this bar in his place. It is for you, gentlemen, to consider, under all the circumstances of the case, to which of those contradictory proofs you will adhibit your belief.

In the hands of an upright and intelligent jury I leave this unfortunate gentleman, confident that whatever verdict you shall pronounce will be the result of your ripest judgment, tempered, in case of doubt, with that tenderness with which it becomes you to decide when the fame and life of a fellow-citizen are at stake.

* * * * *

At half-past four o’clock in the morning the Lord Justice-Clerk proceeded to charge the jury.

(From an Engraving by Beugo after the Portrait by Sir Henry Raeburn.)]

The Lord Justice-Clerk’s Charge to the Jury.

[Sidenote: 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 Court then adjourned.

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.

Address to the Prisoners and Sentence.

The LORD JUSTICE-CLERK then addressed the prisoners as follows:--William Brodie and George Smith, it belongs to my office to pronounce the sentence of the law against you. You have had a long and fair trial, conducted on the part of the public prosecutor with the utmost candour and humanity, and you have been assisted with able counsel, who have exerted the greatest ability and fidelity in your defence.