Chapter VI: Introduction (4)

Mr. WIGHT--My Lords, I likewise attend your Lordships on the part of Mr. Brodie, and although there does not appear upon the face of this indictment any sufficient ground for an objection to the relevancy of it, yet there are some particulars of which I consider it my duty to take notice; and, in order to save time and trouble to the Court, I propose to do it now rather than hereafter.

The law of this country has been very careful to give unhappy men in the situation of the prisoners every opportunity of preparing for their trials; they are allowed fifteen days after being served with their indictments; they are furnished with a list of the witnesses’ names and designations who are to be adduced against them; and the declarations, writings, and articles to be used in evidence in the course of the trial are particularly specified. The present indictment, though not irrelevant, is perhaps laid in the most vague and general manner I have ever seen. Here there are certain letters and declarations founded on, and other articles, such as a gold watch with a chain, and seal, and key, a chest or trunk containing various articles, a five-pound bank-note, an iron coulter of a plough, &c. These are mentioned in so vague a manner as not to distinguish them from other articles of the same kind, consequently in such a manner as not to give the pannels proper opportunity of preparing for their defence. This is the more inexcusable that all of these articles admitted of a more accurate description.

[Here Mr. Wight was interrupted by the Court.]

The LORD JUSTICE-CLERK--Mr. Wight, these objections are out of place; they ought to be stated when the articles you mention come to be produced by the prosecutor.

The DEAN OF FACULTY--It is no doubt true that the objection to each of these articles falls properly to be stated when they are founded upon by my Lord Advocate; but it was thought proper and respectful to the Court to state the general objection at this stage of the business in order to save time.

The SOLICITOR-GENERAL--My Lords, I wish that Mr. Wight may be allowed to proceed.

The LORD JUSTICE-CLERK--Mr. Wight, go on.

Mr. WIGHT--I say, my Lords, that the articles mentioned in the indictment admitted of a more accurate description than that which my Lord Advocate has given them. The maker’s name and number of the watch might have been mentioned, the device on the seal, too, ought to have been specified, also the number of the note and by whom it was issued; and as to the chest or trunk, which is only described by saying that it contained sundry articles, there is no particular description of it, or of any of the articles it contained. It is not said that it is a hair trunk, or the size or shape of it, or any other

(_After Kay._)]

mark condescended upon, whereby it could be distinguished. It might have been mentioned what sort of a trunk it was, whether made of fir, of oak, or of ash; to whom it belonged, and where and in whose possession it was found.

To show your Lordships that this is no immaterial objection, I must beg leave to mention a circumstance that occurred in the present case. Some days ago, Mr. Brodie’s agent went to the Justiciary Office to examine the articles founded on in the indictment; and upon inquiring for the trunk, he was shown a black trunk, a trunk different from the one now to be used in evidence. Thereafter the counsel for the Crown discovered they had committed a mistake; they were so much misled by this want of description that they had sent the trunk referred to, or meant to be referred, in the libel to the prison to Mr. Brodie, and had lodged a wrong trunk with the Clerk of Court. They did not discover this mistake till yesterday morning, and they then applied to the Sheriff for a warrant to recover the trunk, which is now in Court, out of the possession of Mr. Brodie, and which was only lodged in the Justiciary Office yesterday.

Although I have thrown out this general objection, I do not mean to plead it to the effect of setting aside the libel altogether; yet, when the prosecutor attempts to apply his evidence to these articles, I reserve to myself the liberty of making special objections to each article, as it shall be referred to.

The SOLICITOR-GENERAL--My Lords, I will not take up the time of the Court in making any answer to the objection stated, as to the manner in which the watch and the other articles are described in the indictment, as I have no hesitation to say that it does not deserve one. All these articles, as well as the other articles libelled on, have been for weeks past lying in the hands of the Clerks of Court, where the counsel and agents for the pannels have had full opportunity of examining and taking from them whatever description they might think proper.

As to the story of the trunk, it is shortly this: there were two trunks the property of Mr. Brodie; and one of them, containing linens and other articles, was, from motives of humanity, allowed to remain in his possession. This was the trunk referred to in the indictment; the other was, however, sent by mistake to the Justiciary Office, but as soon as the error was discovered, Mr. Brodie was applied to to deliver up the proper trunk. This he refused to do, and therefore it became necessary to apply to the Sheriff, who granted a warrant; in consequence of which it was recovered from the prisoner and lodged in the Justiciary Office. This is the plain state of the fact, and, having laid it before your Lordships, I do not consider it necessary to add one word more to the subject.

The LORD ADVOCATE--My Lords, if it had been intended to charge the prisoners with stealing the watch, or any of the other articles, a more accurate description might have been necessary, but here there is no such intention--the crime of which the prisoners are accused is breaking into the Excise Office.

From the nature of the thing, my Lords, as well as from the tenor of the indictment, it must be evident to every one that it is only meant to produce these articles in evidence, to refer to them when the witnesses are examined. It may be necessary, for example, to prove that certain letters were found in the chest, and to whom the chest belonged; it is no matter of what form the chest is, and not of the smallest consequence whether it is identified or not; nay, more, my Lords, there was no necessity for producing it at all. If every nail of a trunk or every trinket of a watch, or other articles which it might be necessary to found upon in trials of this kind, were to be so particularly described as Mr. Wight has contended for, it would swell indictments to a very inconvenient and unnecessary length.

The objection that the proper trunk was not produced in sufficient time to give the prisoner an opportunity of examining it is certainly a very uncommon one, when it is considered that it was allowed to remain in his own possession until yesterday; and with regard to the watch, all the use I mean to make of it is to identify some letters from Mr. Brodie, which are sealed with the seal appended to it.

The DEAN OF FACULTY--My Lords, what may be the consequence to the prisoners at the bar of your Lordships repelling the present objection I do not know. The gentlemen on the other side of the table have taken care to lay their indictment in such a manner as to leave the counsel for the prisoners altogether in the dark as to the nature of the proof they mean to lead and the manner in which these articles are to be used in evidence; but, my Lords, sure I am of this, that the decision of the present question is of the greatest importance to the law of this country. I am not surprised that the Solicitor-General should say that he will make no answer to the objection, because I am convinced that it admits of none.

It is no light matter the framing of an indictment; the specification of the proofs by which it is to be supported is of the utmost consequence. I am persuaded, my Lords, that I would have no difficulty to satisfy your Lordships, from the nature of the thing itself, that this objection is well founded. But I resort to better evidence. I appeal to the Books of Adjournal on your Lordships’ table, and I call upon the counsel for the Crown to point out one single instance recorded in them where articles have been founded on in an indictment and produced in evidence without being specially described. Having so respectable an authority as the uniform practice of your Lordships and your predecessors to support the objection now stated, you will think well before you introduce an innovation that may be attended with the most dangerous consequences.

We are told that some of the articles in question are of no consequence; if so, why are they here? I will not enter into the question whether the trunk was really produced in the Justiciary Office in proper time or not, as all the indictment says is, that “it will be produced.”

My Lords, there are two kinds of articles produced in criminal trials, first the _corpora delicti_, to prove that the crime was actually committed; and, secondly, articles from which the leading circumstances are to be inferred. The Lord Advocate admits that the first of these must be particularly described, but denies the necessity of describing the second. This is a distinction not known in the law of this country, and directly contrary to the established forms of criminal procedure. What would be the consequence were it recognised? Suppose, for instance, that a person breaks into a house and leaves his hat behind him; nothing could establish his guilt more clearly than to prove that this hat was his. But although this is only a leading circumstance, would it be enough to say that a hat was to be produced in evidence, without specifying where it was found, or any circumstances attending it, so as to give the accused an opportunity of proving that it belonged to another, and not to him?

I will appeal, my Lords, to the practice of the public prosecutor himself, to show that no such distinction exists. A declaration is an article used in evidence as well as a gold watch, yet his Lordship does not think it sufficient to say “a declaration,” without specifying any other circumstances, such as before whom, and of what date, it was emitted. On the contrary, there are several declarations referred to in this indictment, and they are all particularly described. It is the duty of the public prosecutor to specify every particular, and to say what is meant to be proved by each article, or in what manner it has been used in the commission of the crime charged. In the case of Gordon, the sheep-stealer, a man for whom I was counsel at this bar several years ago, and who still languishes in prison, notwithstanding his having received His Majesty’s pardon[1]--your Lordships refused to allow an article to be produced in evidence which had not been libelled on: and the articles objected to might as well not have been libelled on at all, as in the general and vague manner in which they are mentioned in the indictment.

My Lords, there is another circumstance to which I beg to draw your Lordships’ particular attention. It is our good fortune to live under a mild Government; to live in days when there is no danger to be apprehended from the conduct of the public prosecutor; but worse times may arrive, and it is for your Lordships to reflect upon what use might then be made of the present practice if your Lordships were to allow it to be now introduced. The public prosecutor may, for example, libel upon a watch, and the Clerk of Court may show one watch in the Justiciary Office to the prisoner’s counsel or agent, and against the day of trial may produce another in Court. The principal reason why articles such as the present are mentioned in the indictment is that the prisoner may be certain that these articles, and these articles alone, are to be used in evidence against him; and it is clear that this certainty must be withdrawn from the prisoner if a vague description is permitted to be given of them, because, as I have already mentioned, others may be substituted in their place. If an article of evidence be not particularly described so as to prevent the possibility of doubt with regard to the identity of it, the dearest rights of mankind might be endangered and at the mercy of corrupt men, and no one could say how fatal the consequences might be.

The LORD ADVOCATE--My Lords, I admit the justice of what the Dean of Faculty has stated if such an objection as the present were made to the description of the _corpora delicti_. If the prisoners were charged with having stolen the watch or trunk mentioned in the indictment, the description there given of them would not be sufficient; but, as they are not the _corpora delicti_, and are only referred to as circumstances of evidence, I contend that the description is sufficient; but, rather than detain the Court longer with an objection of this kind, I will give up the trunk altogether, as I do not suppose that I shall stand in need of it; I, however, submit the matter to the Court.

The LORD JUSTICE-CLERK--Your Lordships have heard the objection and answers on this point. What is your opinion?

Lord HAILES--My Lords, there is no objection made to the production of the different papers founded on in the indictment, and I do not perceive that there is any force in the objection as to the gold watch; because, although the pannel’s counsel cannot know, from the manner in which it is described in the indictment, what is meant to be proved by it, neither do they know what is intended to be proved by the different witnesses who are cited.

The objection with regard to the trunk appears to me to be much more strong; and I confess that I never saw any article so vaguely stated in an indictment as it is in the present case, viz., “a trunk containing various articles.” It is no good answer to the objection that the proper trunk was not timeously produced, that it was allowed to remain in Brodie’s possession, because that article is founded on in the libel against Smith as well as against him. I am therefore inclined to sustain the objection as to the trunk, but no further.

Lord ESKGROVE--My Lords, I am not disposed to abridge in the smallest degree the security of the subjects of this country, although the law is here more attentive to the safety of persons accused than in any other country whatever. Here the pannel must not only be furnished with the names and designations of the witnesses, but he must also be made acquainted with every document and article to be used in evidence against him.

In the present case there are a number of writings, and likewise a variety of articles, founded on in the indictment; there is no objection to the production of the papers, but it is objected on the part of the pannel that the other articles are not particularly described. I do not think, my Lords, that this objection is much aided by the argument founded on the declarations and other parts of the libel being more particularly described than these articles.

The Dean of Faculty has referred your Lordships to the Books of Adjournal, from which he says that it appears to have been the practice to describe such articles more minutely; but I have no doubt that a perusal of these books would furnish many instances where articles have been described as loosely as they are said to be in the present libel; and, my Lords, as the pannel’s counsel have neither produced, nor offered to produce, any decision of this Court finding libels irrelevant from the articles referred to in them being thus described, I am bound to hold the objection to be of no force.

My Lords, I can see no injury that will be sustained by the prisoners by the repelling of the present objection; all the articles were lodged in the hands of the Clerk of Court, and their agent and counsel had an opportunity of examining them. The trunk is no doubt vaguely described, but that appears to me not to be material, because it will not be sufficient for a witness to say that he found papers or other articles in a trunk; he must say that he found them in the trunk shown to him in Court, otherwise his evidence in that particular will be of no consequence. If the pannels should say that this is a different trunk, and that they never saw it before, I would listen to the objection; but as they cannot, and as I can figure no injury to the prisoners in repelling this objection, I am for over-ruling it.

Lord STONEFIELD--My Lords, I think the description in this case is sufficiently full; therefore I am for repelling the objection.

Lord SWINTON--My Lords, the present objection is made in the wrong place; and I cannot so well judge of it in this general shape as I could have done had it been stated when the particular articles came to be used in evidence; but I must judge of it in the form in which it has been brought before the Court.

I think, my Lords, that it ought to be repelled for the reasons your Lordships have already heard, and because no injury can be done to the pannels from these articles not having been more particularly described, as they will have an opportunity of traversing the evidence that may be brought relating to them. There are many of the articles, such as two iron wedges, an iron crow, &c., that would not admit of a more particular description than has been given. Upon the whole, my Lords, I am for repelling the objection.

The LORD JUSTICE-CLERK--My Lords, the present question is of great importance to the law of this country. I am one of those who are always for giving fair-play to pannels, and will never allow any advantage to be taken of them; but I am likewise for giving fair-play to evidence. It is frequently necessary, my Lords, that the testimony of witnesses should be elucidated by articles referred to being produced; but if the present objections were sustained, I am afraid it would strike against the admissibility of this kind of evidence altogether; because, let a public prosecutor describe such articles with the greatest attention, it still may be contended that they admitted of a more accurate description than the one given.

By the former state of our law the prosecutor was not allowed to prove anything that was not particularly specified in the libel; but the Act 153, Parliament 11th, James VI., was introduced to obviate this defect in our law, and by that Act the prosecutor is allowed to prove every circumstance to substantiate the charge, or in general art and part of the charge. It is very true, my Lords, that the humanity of public prosecutors of late years has induced them to be more special than they had any occasion to be, but surely they are not cut off from the generality allowed them by law, although such generality may have been deviated from through lenity in practice. Apply this to the present case. It is true that the Lord Advocate, as public prosecutor, has been induced to state particular circumstances, and to specify the articles to be founded on; yet that does not alter the law, nor deprive him of the generality which he is allowed by law. As the names of witnesses are given, without specifying what they are to say, in the same way it is only necessary to state that such articles are to be produced in evidence, but not necessary to specify a description of them; and it is the duty of the prisoner himself, or those who act for him, to survey them when lodged in the Justiciary Office. As there is no precise time against which articles to be founded on are required to be lodged in the Justiciary Office, there appears to be no undue delay in lodging this trunk. Had it been pled that it was not lodged _debito tempore_, and that the pannel had been injured thereby, then a delay of the trial must have taken place.

I remember it once happened on a circuit that the articles founded on in the libel were only lodged the very morning of the trial in the Clerk’s hands; but I then refused to allow them to be founded on, because the pannel had not a reasonable time to prepare himself against evidence that might arise from the production of these articles; but the present case is very different, and therefore, upon the whole, I am for repelling the objection.

Mr. JOHN CLERK--My Lord Justice-Clerk, before the interlocutor is written out, I beg leave to make one objection in behalf of the pannel, George Smith.

The LORD JUSTICE-CLERK--What! After the Court have delivered their opinions, it is not decent in you to propose to say anything, and I apprehend the prisoners are in no danger of suffering anything by your not being allowed to supply the defects of the Dean of Faculty.

Mr. JOHN CLERK--My Lord, the Dean of Faculty has no authority to plead for my client.

The DEAN OF FACULTY then moved the Court to allow the general objection to be entered upon record, and proposed to repeat it and refer to it as often as any of the particular articles came to be produced in evidence, which was accordingly agreed to, and the following interlocutor was pronounced repelling the objection:--

The Lord Justice-Clerk and Lords Commissioners of Justiciary having
considered the foregoing debate, they repel the objection stated to
producing and founding on the articles specified in the objection
and mentioned in the indictment, and allow them to be adduced in
the course of the trial.

ROBT. M‘QUEEN, I.P.D.

The prosecutor, for proof of the indictment, then proceeded to adduce the following witnesses, who were all lawfully sworn, purged of malice and partial counsel, and emitted their depositions _viva voce_ in presence of the Court and jury, without being reduced in writing, in terms of the late statute.

Evidence for Prosecution.

[Sidenote: William Scott]

1. WILLIAM SCOTT, Procurator-Fiscal of the county of Edinburgh, called in and sworn.

Examined by Mr. MURRAY--Mr. Scott, you know the prisoners at the bar? Were you present when they emitted certain declarations before the Sheriff-depute of Edinburgh and his substitute?

WITNESS--I was.

Mr. MURRAY--Look at these declarations, and tell the Court and the gentlemen of the jury if they were emitted in your presence by the pannel, George Smith, freely and voluntarily.

WITNESS--They were; and the prisoner appeared to me at the time cool and recollected.

Mr. MURRAY--Look at this declaration. Was it emitted in your presence by the other pannel, William Brodie, freely and voluntarily, and he was cool and recollected?

WITNESS--It was emitted in my presence freely and voluntarily, and he was cool and recollected.

Mr. MURRAY--Do you know anything concerning a warrant that was applied for against William Brodie in the month of March last? If you do, tell the Court and the gentlemen of the jury what happened in consequence of it?

WITNESS--Upon the afternoon of Monday, the 10th of March last, I, as Procurator-Fiscal, gave in a petition in my own name to the Sheriff of Edinburgh, charging Mr. Brodie with breaking into the Excise Office, and praying for a warrant to apprehend him. A warrant was accordingly granted, and search diligently made for him that night, but he was not found, and I afterwards learned that he had gone off for London on the day preceding.

Cross-examined by Mr. JOHN CLERK, for George Smith--Mr. Scott, you say you were present when George Smith emitted the declarations which have been shown you; did Smith, in the course of his different examinations, say anything more than is contained in these declarations?

WITNESS--I do not think he did; everything material was taken down. No compulsion or undue means was used to induce the prisoners to sign these declarations.

[Sidenote: Joseph Mack]

2. JOSEPH MACK, writer in the Sheriff-Clerk’s Office of Edinburgh, called in and sworn, and shown the declarations above mentioned.

WITNESS--These declarations were written by me, to the dictation of the Sheriff, and were emitted by the pannels freely and voluntarily, and the pannels appeared to me to be cool and recollected when emitting them.

Cross-examined by Mr. JOHN CLERK--Was everything which Smith declared when examined taken down?

WITNESS--Everything that was material. With regard to the robbery of Bruce’s shop--[Here the Court stopped the witness, as that was a matter which was not before them.]

The LORD JUSTICE-CLERK--Did he desire anything to be taken down that was not?

WITNESS--No.

[Sidenote: Thomas Longlands]

3. THOMAS LONGLANDS, solicitor-at-law in London, called in and sworn.

Examined by MR. WILLIAM TAIT--Mr. Longlands, did you hear of William Brodie, the prisoner at the bar, having fled from this country in March last, and of his having been brought back? Tell the Court and the gentlemen of the jury what you know of the matter?

WITNESS--In the month of June or July last I was employed by the officers of the Crown for Scotland to take such steps as appeared to me to be proper for the discovery of Mr. Brodie. In consequence of this employment I called frequently at the Secretary of State’s Office, and had several conversations with Mr. Fraser, Under-Secretary in the office of Lord Carmarthen, and gave them the information I had received from Scotland. I likewise waited upon Sir Sampson Wright, of the Public Office, Bow Street, whose assistance I judged necessary to call in as to the proper measures to be pursued. As the information received gave reason to suspect that Mr. Brodie was at Flushing, Ostend, or some place in Holland, it was agreed upon to send a messenger immediately in search of him. Sir Sampson Wright recommended to me a Mr. Groves from his office as a proper person to send to the Continent in search of Mr. Brodie, and I accordingly despatched him with proper instructions. Mr. Groves traced Mr. Brodie to Ostend, and learned that he had been there upon the 4th of June, His Majesty’s birthday, and he was afterwards traced to Amsterdam, where he was apprehended, identified, and committed to prison. Upon proper application, he was delivered up to Mr. Groves, and was brought from thence to London by him. Immediately upon his arrival at London he was examined before Sir Sampson Wright, and committed to Tothilfields Bridewell; some time afterwards he was sent to this country. I was present at the examination of the person brought back from Amsterdam, and I know the prisoner at the bar to be him. There was a trunk containing linens and a variety of other articles, belonging to Mr. Brodie, brought with him from Amsterdam; and I received from Mr. Cartmeal, one of the persons who came along with him, two watches, twenty crowns, and some other articles, which he said were found upon Mr. Brodie; and the watch now upon the table I know to be one of them, having taken particular notice of the maker’s name and number. [The counsel for the pannels here repeated the objection against adducing the watch, as mentioned in the general objection and interlocutor before taken down.] There was likewise another trunk belonging to Mr. Brodie, which was sent over from Ostend by Sir John Potter, in consequence of a letter written to him in my presence by Mr. Groves, after Brodie’s return to London. This trunk, upon its being brought to London, was opened by Sir Sampson Wright in my presence, and in the course of examining the contents of it I discovered a wrapper with some papers, which I opened, and some of the papers appearing to me to be important, I transmitted them to the Lord Advocate. [Here the unsigned scrolls were shown to the witness.] Both Sir Sampson Wright and I put our initials to them, and I am sure that these are the same, as well from seeing my initials as from the strength of some of the expressions, which made a great impression upon me at the time. [The state of affairs and letters of credit were likewise shown to the witness.] I have seen these before; they came in a packet to Sir Sampson Wright from Mr. Rich, the English resident at Amsterdam, and Sir Sampson Wright delivered to me the letter in which they came with them inclosed.

Cross-examined by the DEAN OF FACULTY--Mr. Longlands, have you any other cause of knowledge concerning the trunks and other articles being the property of Mr. Brodie, and the same which were brought from Ostend and Amsterdam, than the information of Sir Sampson Wright and Mr. Groves?

WITNESS--No other cause of knowledge than what I have already mentioned, namely, the letters accompanying the same, which I saw, and my being present when the trunks were opened.

[Sidenote: John Geddes]

4. JOHN GEDDES, tobacconist in Mid-Calder, called in and sworn.

Examined by the SOLICITOR-GENERAL--Were you lately in London? Do you know the prisoner? Tell the jury what you know about him?

WITNESS--I was in London in the month of March last, and my wife and I took our passage in the “Endeavour,” of Carron, Captain Dent, bound for Leith. We went on board on a Saturday, and the next day, Sunday, the vessel fell two or three miles down the river, and then we cast anchor at Blackwall. In the evening the master went on shore to get hands to man her, leaving me and my wife on board. About twelve at night a passenger, who appeared sickly, came on board, in company with Mr. Hamilton and Mr. Pinkerton, two of the owners of the vessel, and another gentleman I did not know. These gentlemen remained about half an hour, and then all went ashore, except the passenger, who remained on board. He was dressed in a blue great-coat, with a red collar, round wig, black vest, breeches, and boots. He was allotted a bed in the state-room, near the fire, as he was sick. The next morning the vessel set sail, but afterwards ran aground opposite to Tilbury Point, where she remained about eight or ten days, and we did not get clear of the Thames for a fortnight. During all that time the passenger remained on board, except one day that he, along with the master of the vessel and my wife and I, went on shore, and dined at a neighbouring village, and another day that he went ashore by himself to get a bottle of milk. For the first two or three days after the passenger came on board we called him “the gentleman,” as we did not know his name, but, upon my inquiring of him what his name was, he told me it was John Dixon.

The SOLICITOR-GENERAL--Would you know that person again?

WITNESS--I would.

The SOLICITOR-GENERAL--Look at the prisoners at the bar and say if you know either of them?

[Here the witness pointed out Mr. Brodie to be the same person that had called himself John Dixon.]--On getting out to sea Mr. Dixon delivered to the captain a letter from Mr. Hamilton or Mr. Pinkerton, but, although I desired him to let me read it, I did not see it. In consequence of this, the captain altered his course and steered for Holland, and the vessel, although bound for Leith, sailed to Flushing. I do not think she was driven there by contrary winds, as the wind was south-west, and fairer for Newcastle or Leith than for Holland. During the voyage, Mr. Dixon complained much of a sore throat. When we arrived at Flushing we cleaned ourselves and went ashore, and Mr. Dixon set off for Ostend in a skiff which he hired for that purpose. On shore, before he left, Mr. Dixon gave me a packet containing two letters, one of which had another within it, to carry to Scotland to be delivered in Edinburgh. One of the letters was directed to Mr. Michael Henderson, stabler in the Grassmarket, in which there was one inclosed to Mrs. Anne Grant, Cant’s Close, and the other to Mr. Matthew Sheriff, upholsterer in Edinburgh, signed and dated as mentioned in the indictment. We did no business at Flushing, and I am of opinion that the ship did not come there with that intention. After landing Mr. Dixon we sailed for Leith. When I arrived in Leith, from the accounts I heard about Brodie, I was convinced that Dixon and Brodie were the same person. Next day I went to Mid-Calder, and about three weeks afterwards was at Dalkeith, where I had occasion to see the newspapers, and the description of Brodie therein given confirmed me in the above suspicion. I then delivered the letters to Sheriff Cockburn. I had previously opened the packet and read them. [The witness was here shown the letters libelled on.] I know that these are the letters I received from the prisoner and delivered to the Sheriff.

The SOLICITOR-GENERAL--Did Brodie say that he had any business at Flushing?

WITNESS--He mentioned that he had business at Ostend, and Captain Dent said he was to wait till he returned, and that he supposed he belonged to the Carron Company; but when the wind came fair, Captain Dent said he would not wait for him, and the devil a bit of business he supposed he had.

Cross-examined by the DEAN OF FACULTY--You have told us that you went ashore when you arrived at Flushing. Pray, sir, did you make any purchases there?

WITNESS--None, except a piece or two of nankeen for breeches to myself.

The DEAN OF FACULTY--Did you purchase nothing else?

WITNESS--Nothing, except two or three handkerchiefs for my own use.

The DEAN OF FACULTY--You will remember, sir, that you are upon your great oath, and that it is your duty to tell the whole truth.

Lord HAILES--My Lords, the witness should be informed that if he purchased any contraband goods he has nothing to fear from acknowledging that he did so.

The LORD JUSTICE-CLERK--It is certainly very proper. [To witness]--John Geddes, if you made any purchases of contraband goods when you was at Flushing, it is your duty to inform the Court and the gentlemen of the jury that you did so, and you have nothing to fear from such an acknowledgment, because whatever you say here will be no evidence against you afterwards in the Court of Exchequer or elsewhere.

The DEAN OF FACULTY--Did you purchase no lace, sir, when you was at Flushing?

WITNESS--A few yards.

The DEAN OF FACULTY--Why, then, did you say that you purchased nothing except the nankeen and the handkerchiefs?

WITNESS--It was my wife and not me that purchased it.

The DEAN OF FACULTY--Did you offer the lace for sale?

WITNESS--No; there is part of it about a cloak which my wife has here with her, and I believe part of it about her sister’s.

The DEAN OF FACULTY--And what became of the rest of it? Remember, sir, you are upon your great oath.

WITNESS--That was it all, except a few yards I sold at Bathgate for twenty-two shillings.

The DEAN OF FACULTY--Did you not say even now that you had offered none of it for sale?

WITNESS--I said that I offered none of it for sale in this place.

The DEAN OF FACULTY--Did you purchase no tobacco in Flushing?

WITNESS--I did not, except a little for chewing.

The DEAN OF FACULTY--Did you purchase any gin?

WITNESS--None, except a little for sea store.

The DEAN OF FACULTY--Pray, sir, when did you open these letters you have told us of? Was it before or after you came to Leith?

WITNESS--It was after.

The DEAN OF FACULTY--You told us, sir, that upon reading the newspapers you discovered that Dixon and Brodie were one and the same person. Pray, sir, when or where did you first read the newspapers?

WITNESS--At Dalkeith.

The DEAN OF FACULTY--How long was that after your arrival?

WITNESS--Three weeks.

The DEAN OF FACULTY--And pray, sir, what was the reason that in all that time you did not deliver these letters to the persons to whom they were directed?

WITNESS--I did not remember that I had such letters when I was in Edinburgh myself, and I afterwards wished my brother-in-law to deliver them.

The DEAN OF FACULTY--Did you open the letters?

WITNESS--I did.

The DEAN OF FACULTY--And what was your reason for doing so?

WITNESS--I opened them and delivered them to the Sheriff for the good of my country.

The DEAN OF FACULTY--And would it not have been as much for the good of the country to have delivered them without opening them?

WITNESS--I just opened them, and that’s all; I can give no other reason.

The DEAN OF FACULTY--Did you inform any person that you had such letters?

WITNESS--I did; I informed John Tweddle, my brother-in-law, who advised me to deliver them to the persons for whom they were intended. I afterwards showed them to a gentleman named Mr. Learmonth in Linlithgow, who wrote a letter by me to a gentleman of this place.[2] By him I was carried to Mr. Erskine, but he would give me no advice, and therefore I returned home to Mid-Calder. That same evening, or early next morning, Mr. Scott, Procurator-Fiscal, and Mr. Williamson, messenger, called upon me, and I accompanied them to Edinburgh and delivered the letters to the Sheriff.

The DEAN OF FACULTY--My Lords, as the witness has mentioned his having called upon me, I beg leave to state to the Court what passed upon the occasion. He was brought to my house by a gentleman, and he showed me the letters. I informed him that I was counsel for Mr. Brodie; that he himself knew best the directions that he had received from the person who committed these letters to his charge; and that I could give him no other advice than this, that he ought to do in the matter that which his own conscience should point out to him as most proper.

The LORD JUSTICE-CLERK--That was a very proper advice, and was just what I would have expected from the Dean of Faculty.

The LORD ADVOCATE--My Lords, you will have observed that there were three letters from the prisoner delivered up. It was only judged necessary to libel on two of them; but if the prisoner thinks that the other letter, or any of his other papers in my possession, will be of the least service to him in supporting his defence, I have no objection to produce them.

[Sidenote: Margaret Tweddle]

5. MARGARET TWEDDLE, spouse of the said John Geddes, called in and sworn.

WITNESS--I was in London with my husband in the month of March last, and went with him on board of a vessel bound for Leith. One night, when it was dark, a person, whom I now see a prisoner at the bar, and some others with him, came on board. The prisoner remained on board, but the others went ashore in about half-an-hour afterwards. I think the person had a wig on when he came on board, and he appeared to be in bad health. He passed by the name of John Dixon. The vessel sailed for the coast of Holland, and when she arrived there the prisoner went on shore. I saw my husband receive a packet of letters from Mr. Dixon; but I know nothing more of them. I never saw these letters afterwards.

Cross-examined by the DEAN OF FACULTY--Did you or your husband make any purchases while in Flushing?

The LORD JUSTICE-CLERK--Margaret, if you or your husband purchased any contraband goods when you were at Flushing you will inform the Court and the gentlemen of the jury that you did so, and you have nothing to fear from such an acknowledgment, because whatever you say here will be no evidence against you afterwards in the Court of Exchequer or elsewhere.

WITNESS--We purchased some pieces of nankeen, some handkerchiefs, and some yards of lace.

[Sidenote: Robert Smith]

6. ROBERT SMITH, wright in Edinburgh, called in and sworn.

WITNESS--I was some time ago foreman to the pannel, Mr. Brodie, and I remember to have been sent for by him upon the Sunday morning, the 9th of March, at eight o’clock, after it was reported that the Excise Office had been broke into. The message was not particular, but such a one as I usually received from him when he wanted to give me orders about some work, as he frequently sent for me for that purpose, especially if he was going to the country. When I came to him he asked me if there were any news about the people who had broke into the Excise. I answered that I had been informed that George Smith was committed to prison, and that Brown had been sent into England in search of Inglis & Horner’s goods. I added that I hoped he, Mr. Brodie, had no concern in these depredations; but he returned to me no answer. The reason I asked this question was that I had often seen my master in their company, and knew him to be intimate with them. Mr. Brodie told me he was going out of town for a few days, and sent me a message for a waistcoat and pair of breeches; but before my return he was gone, and I did not see him again till after he was brought back to this country. On the Monday evening following, the 10th of March, a search was made for him, and several doors of his house were broken open, in virtue of a warrant from the Sheriff, as I was informed. [Here the witness was shown the two letters founded on in the indictment, and desired to say whether or not they were in the handwriting of Mr. Brodie.] I have seen the handwriting of Mr. Brodie, and I think the writing of these letters very like his, but I never saw Mr. Brodie subscribe with initials; and as I am no judge of writing, I cannot say whether I believe these letters to be written by Mr. Brodie or not. [Here the witness was shown the unsigned scrolls, and desired to say whether or not he believed they were in the handwriting of Mr. Brodie.] I never saw Mr. Brodie write so bad a hand as these letters are written in, nor after the manner in which they are written, and I do not think that they have been wrote by Mr. Brodie. [Here the state of affairs referred to in the indictment was shown to the witness.] I think this is very like the handwriting of Mr. Brodie, much more so than any of the others.

[Sidenote: James Laing]

7. JAMES LAING, writer in Edinburgh, called in and sworn.

WITNESS--I am assistant clerk in the Council Chamber. I know Mr. Brodie, the prisoner at the bar. I have seen him write, and I am a little acquainted with his handwriting. [Here the two letters were shown to the witness.] The writing of these letters is very like Mr. Brodie’s handwriting. I think they have been wrote by him. [Here the unsigned scrolls were shown to the witness.] I think these are of Mr. Brodie’s handwriting too, though worse written. [State of affairs shown to the witness.] I think this also is written by Mr. Brodie.

[Sidenote: John Macleish]

8. JOHN MACLEISH, clerk to Hugh Buchan, City Chamberlain of Edinburgh, called in and sworn.

WITNESS--I know Mr. Brodie, the prisoner at the bar, and have had some opportunity of knowing his handwriting. I have got receipts from him in the Chamberlain’s office, and have received cards from him. I have likewise seen him write in his own shop. [Here the witness was shown the two letters.] I think these letters are of his handwriting. [Shown the scrolls.] I never saw Mr. Brodie write in so crowded a way, or interline so much, but, notwithstanding, I think that these are of his handwriting. [State of affairs shown the witness.] I think that this also is of Mr. Brodie’s handwriting.

Cross-examined by the DEAN OF FACULTY--How do you come to know Mr. Brodie’s writing so exactly?

WITNESS--From many accounts and receipts, of his writing, which I have in my custody belonging to the office.

[Sidenote: John Duncan]

9. JOHN DUNCAN, door-keeper to the Excise Office, Edinburgh, called in and sworn.

WITNESS--I have been in that office for thirty-seven years. The doors of the Excise Office, when it was kept in the Canongate, were usually locked by me about eight o’clock at night, and I carried the key immediately thereafter to the housekeeper. A watch was set to guard it about ten o’clock, and the night watchman went away about five in the morning. I remember to have locked the door on Wednesday, the 5th of March last, about a quarter after eight o’clock in the evening, and I gave the key to one of Mr. Dundas, the housekeeper’s, maid-servants. The cashier’s room lay within the outer door, which I had locked, as before mentioned, and it had a double door.

Cross-examined by Mr. CLERK, for George Smith--Pray, sir, was the Excise Office kept in one or in two houses?

WITNESS--The Excise Office was kept in a large house; but there was likewise a small house fronting and adjoining the great one, in which Mr. Broughton’s office and the Register of Seizures were kept. There was no communication from the one to the other without going out to the open air, and the whole were in one court, inclosed by a parapet wall and iron rail.

[Sidenote: William Mackay]

10. WILLIAM MACKAY, porter in the Canongate of Edinburgh, called in and sworn.

WITNESS--I was employed as a watch to guard the Excise Office when it was kept in Chessels’s Buildings, and upon Wednesday, the 5th day of March last, I went to the office at the usual hour, which was a little before ten o’clock at night. I found one of the leaves of the outer door open, and the passage door and the door of the cashier’s room also open; and upon making this discovery I went to Mr. Dundas, the housekeeper’s, and inquired of the maid who had been last at the office, as the doors were open. The maid answered John Duncan, the last witness, had left it about a quarter after eight o’clock. Mr. Dundas’s son, hearing me make this inquiry, asked what was the matter. When I told him that the door was broke open, he said, “Then, something worse is done.” Immediately Mr. and Mrs. Dundas and the whole family went into the office with me and examined the cashier’s room; we found all the desks and presses broke open, and the coulter of a plough, and two iron wedges, lying in the room; and we likewise found a spur in the hall, with part of the leather of it torn. Mr. Dundas immediately sent me for Mr. Alexander Thomson, the accountant. I found Mr. Thomson, and he returned with me to the Excise Office. [Here the witness was shown the coulter of the plough, the two iron wedges, and the spur.] These are the same articles which I saw in the Excise Office. [The counsel for the pannels here repeated the objection against adducing the coulter and two wedges, as mentioned in the general objection and interlocutor before taken down.]

[Sidenote: Alexander Thomson]

11. ALEXANDER THOMSON, accountant of Excise, called in and sworn.

WITNESS--I remember that the Excise Office was broke into on Wednesday, the 5th of March last. When I left the office at the usual hour that night, about eight o’clock, I locked the door of the cashier’s room before I left, and carried the key away with me. I saw John Duncan, the door-keeper, in the hall as I came out. I left in two concealed drawers below the desk about £600 sterling, and in the desk itself £15 16s. 3½d., being two-thirds of the proceeds of a seizure sent from Greenock, to be divided amongst three people. About ten o’clock the same evening the office porter, or watchman, came to me and informed me that the Excise Office had been broken into. I immediately repaired to the office, and found Mr. Dundas, the housekeeper, and Mr. Pearson, the secretary, there; and, along with them, I examined the premises. The outer door and the passage door appeared to have been opened without violence, but the door of the cashier’s room seemed to have been forced with a lever or other instrument; the door of a small press in the room appeared likewise to have been forced open, and a few shillings, and some stamps for receipts that were in it, carried off. The key of my desk, which I usually kept in this place, had likewise been taken out, and the desk opened with it. The £15 odds, which I had left in the desk, were gone, and also a receipt for £7 18s. 2d., but the concealed drawers, in which the £600 was contained, were untouched. These drawers cannot be opened without first opening the desk, and the keyhole is concealed by a slip of wood, which might escape a slight observer. Accordingly it had remained untouched, although the key of it lay in the desk. Behind the door there was left the coulter of a plough and two iron wedges--[Here these articles were shown to the witness]--the same as these now on the table.

Cross-examined by Mr. JOHN CLERK for George Smith--Pray, Mr. Thomson, was the Excise Office, when in the Canongate, kept in one house or in two houses?

WITNESS--It was kept in three houses, or in one large house, consisting of a front and two wings, and, besides this principal house, there was a small one fronting, and nearly adjoining to it, in which Mr. Broughton’s office, Mr. Dick’s office, and the Register of Seizures were kept.

[Sidenote: Laurence Dundas]

12. LAURENCE DUNDAS, housekeeper of the Excise Office, called in and sworn.

WITNESS--There was a practice, previous to the time when the Excise Office was broke into, of locking the door betwixt eight and nine o’clock at night, and lodging the key in my house, and of putting a watch upon it at ten o’clock. I remember that upon Wednesday, the 5th of March last, the door was locked at the usual hour, and the key left by John Duncan at my house. A little before ten o’clock that night, William Mackay, the porter employed to watch the office, came to my house and gave information that the office had been broke open. I immediately went to the office, and found the outer door, the passage door, and the door of the cashier’s room, all open. This last-mentioned door seemed to have been forced with some instrument. Within the room I found the coulter of a plough and two iron wedges, all of which I now observe upon the table. Every drawer in the room, except the money drawers, seemed to have been forced open. I immediately sent for Mr. Thomson, the accountant, and Mr. Pearson, the secretary, and both of them immediately came to the office. Mr. Thomson told me that he had about £17 in his desk, which he supposed was all gone, but he hoped that the money drawers were safe. The key of the money drawers was found amongst others lying in the desk.

Cross-examined by Mr. JOHN CLERK, for George Smith--Mr. Dundas, was the Excise Office, when in Chessel’s Buildings, kept in one house or in two houses?

WITNESS--Principally in one house, but there was likewise another small house in which Mr. Broughton’s office, Mr. Dick’s office, and the Register of Seizures were kept; both houses were inclosed with an iron rail.

[Sidenote: Janet Baxter]

13. JANET BAXTER, servant to Adam Pearson, assistant secretary of the Excise, called in and sworn.

WITNESS--I was out upon a message about eight o’clock at night on Wednesday, the 5th of March last, and, returning homewards, I met with an acquaintance, with whom I conversed for a little in the entry to Chessels’s Buildings, in which my master lived. I then went down the close, and on my way down I saw a man, dressed in a whitish great-coat and slouch hat, leaning over the rails at the entry to the court, and, judging him to be a light or suspicious person, I was afraid of him, and ran into my master’s house.

[Sidenote: James Bonar]

14. JAMES BONAR, deputy-solicitor of Excise, Edinburgh, called in and sworn.