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

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

The Lord Justice-Clerk — Be short and concise, sir, at this time of the morning.

Mr. Clerk — Pray, your Lordship, let me proceed.

The Lord Justice-Clerk — Well then, proceed, young man.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lord Stonefield — It is a positive reflection on the Court.

Lord Hailes — It is a flat accusation that we have admitted improper evidence.

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

The Lord Justice-Clerk — With these admonitions, go on, sir; proceed, sir.

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

The Lord Justice-Clerk — Take care, sir, what you say.

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

[Great applause from the audience.]

Macers — Silence in Court.

The Lord Justice-Clerk — Mr. Clerk, please restrict your reflections. The Court have admitted the witness.

Mr. Clerk — Yes, my Lords, I know that very well, but your Lordships should not have admitted him, and of that the jury will now judge.

The Lord Justice-Clerk — This is most indecent behaviour. You cannot be allowed to speak to the admissibility; to the credibility you may.

Lord Stonefield — This young man is again attacking the Court.

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

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

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

The Lord Justice-Clerk—Dean of Faculty, I know you will attempt nothing that is improper.

Mr. Clerk — But, my Lords, the jury are to judge of the law as well as the facts.

The Lord Justice-Clerk — Sir, I tell you that the jury have nothing to do with, the law, but to take it simpliciter from me.

Mr. Clerk — That I deny.

[Consternation in Court.]

Lord Hailes — Sir, will you deny the authority of this High Court?

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

The Lord Justice-Clerk — You are talking nonsense, sir.

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

The Lord Justice-Clerk — Proceed—gang on, sir.

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

The Lord Advocate — He has, as I have shown you, received His Majesty’s free pardon.

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

[Great applause in Court.]

The Lord Justice-Clerk — Macers, clear the Court if there is any more unruly din.

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

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

[Sensation in Court.]

The Lord Justice-Clerk [to the Lord Advocate] — Do you want his words noted down?

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

The Lord Justice-Clerk [to Mr. Clerk] — Go on, young man.

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

The Lord Justice-Clerk — We cannot tolerate this, sir. It is an indignity to this High Court—a very gross indignity, deserving of the severest reprobation.

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

The Lord Justice-Clerk — Go on, sir; go on to the length of your tether.

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

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

The Lord Justice-Clerk — Beware of what you are about, sir.

[Here Mr. Clerk again sat down.]

The Lord Justice-Clerk — Are you done, sir, with your speech?

Mr. Clerk — No, my Lord, I am not.

The Lord Justice-Clerk — Then go on, sir, at your peril.

Lord Hailes—You had better go on, Mr. Clerk. Do go on.

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

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

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

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

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

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

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

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

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

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

There are two capital defects in the evidence of this fact. First, a glaring contradiction concerning the place where the things were found; and, secondly, as glaring a contradiction in the account of what passed at finding them. Middleton says that they were found in Warriston’s Close; Murray, on the contrary, that they were found in Allan’s Close. Middleton told you expressly that the pannel put his hand into the hole in the wall and drew them out; but Murray said that this was impossible, because he had his hands tied behind him: and this witness farther added that he himself drew them out. Mistakes; and I ask, what reliance can be had on evidence where two such falsehoods appear within the narrow compass of a few questions? I am willing to grant that there are slight inaccuracies which rather tend to confirm the truth of a deposition than to render it suspected; but you cannot suppose errors like these concerning such marked and important circumstances, as make an impression on the memory equally indelible with any part of the story, and which in this instance constitute its leading features.

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

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

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