Part 9
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.