Part 6
At a quarter to nine o’clock the prisoners were brought from the Tolbooth into Court. “They were conveyed, upon their request, in chairs, but each having a sentinel of the City Guard on the right and left, with naked bayonets, and a sergeant’s guard behind, with muskets and fixed bayonets.” A contemporary account informs us that “Mr. Brodie was genteelly dressed in a new dark-blue coat, a fashionable fancy waistcoat, black satin breeches, and white silk stockings, a cocked hat, and had his hair fully dressed and powdered.” In contrast to the dashing appearance cut by his companion, Smith, we are told, was “but poorly clothed, having had no money since his confinement, which had already lasted six months.” The Deacon affected an easy and confident demeanour; Smith, on the contrary, looked timid and dejected.
At nine o’clock the five judges, preceded by a macer bearing the Justiciary mace, and headed by the formidable Braxfield, took their seats, “and, the Court being fenced and the action called in the usual manner,” the trial then commenced. As a _verbatim_ report of the proceedings is contained in the following pages, and some account of the judges and counsel engaged therein will be found in the Appendix, it is only necessary here briefly to comment upon the more salient incidents which occurred in the course of the trial.
It is worthy of note that among those who served upon the jury were William Creech, the celebrated Edinburgh publisher and man of letters, and also Sir William Fettes, afterwards Lord Provost of Edinburgh, and James Donaldson, the well-known printer and pioneer of cheap literature, to whose munificence the city is indebted for the famous college and palatial hospital which bear the names of their respective founders.
The interest of the Deacon’s friends had secured for him the services of Henry Erskine, then Dean of Faculty, and the chief ornament of the Scots bar, with whom were Alexander Wight, and Charles Hay, afterwards the jovial Lord Newton; while Smith’s case was entrusted to the celebrated John Clerk of Eldin, at that time an inconsiderable junior, and Robert Hamilton, in later years the colleague of Sir Walter Scott. The Lord Advocate (Ilay Campbell) and the Solicitor-General (Robert Dundas), assisted by two Advocates-depute, conducted the prosecution.
Both prisoners pleaded not guilty; no objections were taken to the relevancy of the indictment; and it was stated for Brodie that he intended to prove an _alibi_. An objection taken by the Dean of Faculty to the specification of certain of the articles libelled on having been repelled, John Clerk attempted to make some observations on behalf of Smith, which resulted in the first of those passages of arms between him and Braxfield, whereby the dignified course of the proceedings was frequently enlivened. Clerk had then been at the bar less than three years; this was the most important case in which he had yet been employed; and it is said to have been his first appearance in the Justiciary Court. The remarkable and characteristic energy with which on that occasion he conducted his client’s defence attracted the attention of the profession, and laid the foundations of his subsequent reputation and practice.
An interesting point of law arose in connection with the calling of Smith’s wife as a witness for the prosecution against Brodie. Her proposed evidence was vigorously objected to by Clerk on account of the relation in which she stood to his client--both panels were included in one indictment, and it was impossible to criminate the one without the other. A sharp encounter with Braxfield ensued; but the Court admitted the witness. When Mrs. Smith entered the box, however, Alexander Wight, for Brodie, stated a fresh objection, viz., that the maiden name of the witness was wrongly given in the Crown list as “Mary Hubbart,” whereas her real name was “Hibbutt,” which, on her being requested by Braxfield to sign her name, turned out to be the fact. In view of this misnomer the objection was sustained and the witness dismissed.
Another legal point of interest arose when it was proposed to identify the five-pound bank-note libelled on, the Dean of Faculty objecting that it was not a “bank-note,” as described in the indictment, having been issued by a private banking company in Glasgow. The Court sustained the objection, holding that nothing was to be deemed a bank-note but one issued from a bank established by Royal Charter.
The crucial question of the case, however, both for the prosecution and the defence, was whether or not Ainslie and Brown should be admitted as witnesses to prove the panels’ guilt. So far the proof of their complicity in the robbery was mainly circumstantial. Although Smith, in his second declaration, had confessed his accession to the crime, yet, having pleaded not guilty, this was not in itself sufficient to convict him; while as regards the Deacon, apart from the statements of Smith, his guilt was only to be inferred from his flight and certain passages in his letters. It was, therefore, of vital importance to the prisoners that the direct evidence of their accomplices should be excluded, while the Crown case equally depended for a verdict upon its admission.
To the determining of this question each side accordingly addressed its strongest efforts, and the debate which followed will be found both lively and instructive. The authority of Sir George Mackenzie was quoted against the admission of the witnesses; but that venerable jurist was somewhat severely handled. The principal objection to Ainslie, as stated by the Dean of Faculty, was that he had been himself accused of the crime he was now to fasten upon another, and that the Sheriff of Edinburgh had offered him his life if he would criminate Brodie, of whose complicity he had hitherto said nothing. In the case of Brown, the battle was joined upon the precise effect of the pardon which had been obtained for that interesting criminal, and to what extent the pristine purity of his character was thereby restored. The Court, however, repelled the objections, and admitted both witnesses; and the evidence which they gave finally disposed of all chance of the panels’ acquittal.
At the conclusion of Brown’s evidence the Lord Justice-Clerk addressed that truculent scoundrel as follows:--“John Brown, you appear to be a clever fellow, and I hope you will now abandon your dissipated courses, and betake yourself to some honest employment.” To which Brown suitably replied, “My Lord, be assured my future life shall make amends for my past conduct.” He then left the box, and so passes out of the story, of which he was undoubtedly “the greater villain,” and surely never did witness less merit judicial commendation than John Brown _alias_ Humphry Moore.
The Crown case closed with the reading of the prisoners’ declarations and the Deacon’s letters, such portions of the former as related to matters unconnected with the trial being withheld from the jury. For the defence no witnesses were called for Smith, and an attempt to prove an _alibi_ made on behalf of Brodie was entirely unsuccessful, the principal witnesses to it being his brother-in-law, Matthew Sheriff, and his mistress, Jean Watt, both obviously friendly to the Deacon’s interests.
At one o’clock on the morning of Thursday, 28th August, the exculpatory proof was closed, and the Lord Advocate began his address to the jury. His Lordship’s speech, while an able and convincing statement of the Crown case, was marred by one or two passages which would now be considered to exceed the limits of legitimate advocacy. Such are the references to facts “which would have been likewise sworn to by Smith’s wife, if she had been allowed to be examined”; the assumption that the Deacon’s foreman, Robert Smith, was convinced of his master’s guilt; the use made of Ainslie’s declaration, which that witness was told had been destroyed, and which was not before the Court; and the passage in the peroration referring to the “consequences to the inhabitants of this populous city” of the Deacon’s acquittal.
At the conclusion of the evidence the Dean of Faculty and John Clerk had held a final consultation, when it was arranged that Clerk should speak first for Smith, and that Erskine should follow for Brodie, and strengthen or take up such points as he might think necessary. In order to put himself in fighting form, Clerk, we are told, drank a bottle of claret before commencing his address. This speech, the only extant example of his celebrated method of advocacy, was, in all the contemporary reports, reduced to a minimum for fear of offending the judges. Fortunately, however, a later writer, Peter Mackenzie, has preserved, in his “Reminiscences of Glasgow” (Glasgow, 1866), a full account of the suppressed passages, which he gives on the unquestionable authority of Æneas Morrison, the agent for Smith, who himself furnished the author with these particulars. They have accordingly been incorporated in the following report.
When Clerk, in the course of his address, came to deal with the evidence of Ainslie and Brown, a scene, almost incredible to us nowadays, occurred between the irrepressible young advocate and the overbearing judge. Clerk informed the jury that, in his opinion, these witnesses ought never to have been admitted, a statement which the bench naturally resented, and he went on to insist that, notwithstanding the ruling of the Court, the jury should discard their evidence entirely, as they (the jury) were to judge of the law as well as of the fact. In the course of the discussion which followed, the intervention of the Lord Advocate was met by a graceful allusion to His Majesty’s Tory Administration as “villains” likely to contaminate the Crown.
A heated altercation between Clerk and Braxfield ensued, and, finally, the latter bade him go on with his speech at his peril. On Clerk refusing to proceed unless allowed to do so in his own way, Braxfield invited the Dean of Faculty to commence his address for Brodie, which that gentleman declined to do. Thereupon the Lord Justice-Clerk was about to charge the jury himself, when Clerk, starting to his feet and shaking his fist at the bench, cried out, “Hang my client if ye daur, my Lord, without hearing me in his defence!” These amazing words, the like of which had seldom echoed in judicial ears, caused the utmost sensation in Court, and, after an awful pause, the judges left the bench to hold a consultation. But, on their return, instead of anything tremendous taking place, his Lordship civilly requested Clerk to continue his address, and the incident terminated.
Thus was the redoubtable Braxfield forced to yield to the persistence of the fiery young counsel. On reading the discussion as reported, one cannot but think that Clerk was clearly in the wrong, and that his contention as to the jury being judges both of the fact and of the law was, as Braxfield roundly put it, “talking nonsense.” Nor does it appear that the line which he saw fit to adopt could in any way benefit his unfortunate client, whose interests would have been better served by more temperate methods. Clerk, however, was thoroughly pleased with his performance, and subsequently observed that it was “the making of him” professionally.
It is said that Clerk’s indignant repudiation of the prosecutor’s argument that the King’s pardon made Brown an honest man reached the ears of Robert Burns, and led him afterwards to write the famous lines--
A prince can mak’ a belted knight, A marquis, duke, an’ a’ that; But an honest man’s aboon his might, Gude faith, he mauna fa’ that!
At three o’clock in the morning the Dean of Faculty rose to address the jury on behalf of Deacon Brodie. In spite of the fact that he had been continuously engaged upon the case since nine o’clock the preceding morning, no signs of exhaustion appear in his eloquent and powerful speech. Every point telling in favour of the prisoner was given due prominence, and the utmost was made of the somewhat flimsy material of the _alibi_; the whole address forms a fine example of forensic oratory.
At half-past four o’clock the Lord Justice-Clerk--who is said never to have left the bench since the proceedings began--delivered his charge to the jury, which, one is glad to find, notwithstanding what had previously occurred, was a fair and impartial review of the evidence. His Lordship having concluded his charge at six o’clock on Thursday morning, the Court adjourned until one o’clock afternoon; the jury were inclosed; and the prisoners taken back to prison.
The _Edinburgh Advertiser_ remarks--“Mr. Brodie’s behaviour during the whole trial was perfectly collected. He was respectful to the Court, and when anything ludicrous occurred in the evidence he smiled as if he had been an indifferent spectator.”
When the Court met again at one o’clock, the Chancellor of the jury handed in their written verdict, sealed with black wax, which unanimously found both panels guilty of the crime libelled, and the Lord Advocate formally moved for sentence.
A final effort was now made on behalf of the prisoners. Counsel for Brodie stated a plea in arrest of judgment, in respect that the verdict found the panels guilty “of breaking into _the_ house in which the General Excise Office for Scotland was kept,” whereas it appeared from the evidence that there were, in fact, two separate and distinct houses occupied as the Excise Office. This objection was, after argument, repelled by the Court, and the prisoners were sentenced to death, their execution being appointed to take place on Wednesday, 1st October.
When the sentence was pronounced, we are told “Mr. Brodie discovered some inclination to address himself to the Court, but was restrained by his counsel,” and contented himself with bowing to the bench. The prisoners were then removed to the Tolbooth, escorted by the City Guard, amid a great concourse of spectators, and the proceedings terminated.
Æneas Morrison, the agent for Smith, adds the following particulars:--“The panels behaved in a manner different from each other, Smith appearing to be much dejected, especially at receiving his dreadful sentence, although in many instances he showed very great acuteness in his remarks upon the depositions of the witnesses and in the questions to them which he suggested. Mr. Brodie, on the other hand, affected coolness and determination in his behaviour. When the sentence of death was pronounced he put one hand in his breast and the other in his side and looked full around him. It is said that he accused his companion of pusillanimity, and even kicked him as they were leaving the Court. Thus ended a trial which had excited the public curiosity to an extraordinary degree, and in which their expectations were not disappointed. During the space of twenty-one hours--the time it lasted--circumstances continually followed each other to render it highly interesting, and more particularly to the gentlemen of the law, on account of the great variety and importance of the legal topics which were discussed and decided.”
The prisoners were lodged in the condemned cell of the Tolbooth, along with two men, James Falconer and Peter Bruce, then under sentence of death for breaking into and robbing the office of the Dundee Banking Company. They were each chained by one foot to an iron bar, but a contemporary account records that “Brodie’s chain is longer than the rest, as he can sit at a table and write by himself. They have behaved tolerable well, considering the small room they have on the goad, which goes across the room, very securely fixed from one end to the other in the wall, and hath four divisions or places on which the chains are fixed, with strong iron supporters fastened into the stone floor, and each has a mattress to lie on opposite to himself.”
A terrible change this, for the unfortunate Deacon, from the comfortable chambers of his house in Brodie’s Close and the social advantages which he had so long and undeservedly enjoyed. He seems, notwithstanding, to have kept up his spirits, and is said to have been as particular as ever in the matter of his dress. Having contrived to cut out the figure of a draughtboard on the stone floor of his dungeon, he amused himself by playing with any one who would join him, and in default of such, with his right hand against his left. The author of “Traditions of Edinburgh” states that this diagram remained in the room, where it was so strangely out of place, till the demolition of the Old Tolbooth in 1817. Many of his friends came to see him, for, until the time of his execution drew near, no restriction was placed upon their visits, and every effort was made by them to obtain a commutation of the death sentence to one of transportation for life.
In furtherance of this object Deacon Brodie, on 10th September, wrote letters to the Right Hon. Henry Dundas, afterwards Viscount Melville, and to the Duchess of Buccleuch, soliciting their influence in support of an application then being made to the Government on his behalf. Copies of these most interesting documents, which have never before been published, will be found in the Appendix--that addressed to the Duchess being also given in facsimile. This lady was Elizabeth, daughter of George, Duke of Montague, and wife of Henry, third Duke of Buccleuch, the friend of Sir Walter Scott, whose daughter-in-law, when Countess of Dalkeith, inspired “The Lay of the Last Minstrel.” It is noteworthy that, in spite of his position and presumed education, the Deacon’s spelling is more remarkable for originality than accuracy. His friends’ “aplication above,” however, proved unsuccessful, and the inevitable end had to be faced.
Deacon Brodie continued to bear up bravely, referring to his approaching exit as “a leap in the dark,” and is said to have only once broken down, when he was visited by his eldest daughter, Cecil, on the Friday before his execution. On the Sunday preceding his death, the other two prisoners, Falconer and Bruce, who were to have been executed on the same day, were granted a respite of six weeks. Smith observed that six weeks was but a short time; whereupon the Deacon exclaimed, “George, what would you and I give for six weeks longer? Six weeks would be an age to us!” On the Tuesday he was visited by a friend, when, we are told, “the conversation turning upon the female sex, he began singing with the greatest cheerfulness from the ‘Beggar’s Opera’ ‘‘Tis woman that seduces all mankind,’ &c.”
The “Beggar’s Opera,” the well-known work of the poet and dramatist, John Gay, appears to have been a special favourite with the Deacon, for it will be remembered that he sang a stave from it on the night of the robbery of the Excise Office. The opera was frequently performed at the Old Theatre Royal, Edinburgh, at this period, and he had, no doubt, had many opportunities of hearing it. Commenting on this incident, the _Edinburgh Advertiser_ remarks--“Brodie seemed to take the character of Captain Macheath as his model, and the day before his death was singing one of the songs from the ‘Beggar’s Opera.’ This is another proof of the dangerous tendency of that play, which ought to be prohibited from being performed on the British stage. It is inconceivable how many highwaymen and robbers this opera has given birth to.” The editor of the _Advertiser_ was evidently less gifted with a sense of humour than the Deacon, and had never read Fergusson’s lines “To Sir John Fielding, on his attempt to suppress the ‘Beggar’s Opera.’”
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On the night before the execution, Deacon Brodie complained of the noise made by the workmen in effecting the alterations on the gibbet necessitated by the reprieve of the other prisoners, Falconer and Bruce; and it is stated in a contemporary report of the trial, published by Robertson on 2nd October, 1788, the day after the execution, that Brodie then said “he planned the model of the new place of execution, he purchased the wood, and gave his assistance in finishing it--but little did he imagine at the time that he himself would make his exit on it.” The _Edinburgh Advertiser_ of 3rd October, 1788, describing the execution, says--“It is not a little remarkable that Brodie was the planner, a few years since, of the new-invented gallows on which he suffered”; and Robert Chambers, in his “Minor Antiquities of Edinburgh,” (1833, p. 168), remarks--“As the Earl of Morton was the first man executed by the ‘Maiden,’ so was Brodie the first who proved the excellence of an improvement he had formerly made on the apparatus of the gibbet. This was the substitution of what is called the ‘drop’ for the ancient practice of the double ladder. He inspected the thing with a professional air, and seemed to view the result of his ingenuity with a smile of satisfaction.” William Chambers, however, in his “Book of Scotland” (1830, pp. 327-8), takes a different view, holding that the drop was first employed at Newgate in 1784, and had already been used in Edinburgh at an execution in 1785.
Popular tradition, with a fine sense of the requirements of poetic justice, has steadfastly held that Deacon Brodie was the first to test the efficacy of the drop which he himself invented, and was thus, in a double sense, the artificer of his own downfall. And although such a circumstance would be well in keeping with the Deacon’s singularly dramatic career, it must unfortunately be dismissed as a picturesque improvement on the literal truth.
A careful examination of the Council records discloses the following facts, now for the first time published:--On 18th August, 1784, the Town Council remitted to Convener Jameson (mason), Deacon Hill (wright), and Deacon Brodie to inspect the west wall of the Tolbooth and consider in what manner a door or passage could be made in order that criminals might be executed there, and to report. Up till that time all public executions had taken place in the Grassmarket at the foot of the West Bow; and it was now proposed that criminals should be executed upon a platform to be erected on the low building which projected from the west gable of the Tolbooth. The report of the committee on the subject does not appear on the record; but in September the new Council was elected for the ensuing year, and Deacon Brodie was not chosen a member of it.