The Lord Advocate—Gentlemen of the jury, it is now my duty to offer some observations on the import of the evidence which has been led before you, and as you have already had a very long and fatiguing sederunt, I shall endeavour to state what occurs to me in as few words as possible. It is with the greatest concern that I address you in this case—a case that is attended with circumstances which must occasion to all of us the most painful sensations; but public justice requires that these feelings should be repressed.

Gentlemen, the crime with which these prisoners stand charged is of a most dangerous and heinous nature. It is a crime which, until of late, was but little known in this country, though now it seems to be every day growing more frequent, and the practice of it is almost reduced into a system. It is no longer than fourteen days ago that two men received their sentence at that bar for a crime of the same nature with this—the robbery of the Bank of Dundee—which appeared to have been conducted and perpetrated by an association in that town, similar to the association which took place, in the heart of this populous city, between the prisoners at the bar and the other two men whom you saw this day give evidence against them; and which, had it not been discovered, threatened the inhabitants of this city with the most dangerous consequences. That now charged against these prisoners, though of the most flagrant nature, is but one of many in which there is good ground to believe that this association has been concerned. And it is your province, gentlemen, if upon careful examination of the evidence you think these men guilty, to do that justice to your country which the public safety requires, by returning a verdict against them.

It is perhaps of no consequence to inquire into what was the former situation of the prisoners, because that is a circumstance which can have no weight with you in determining what verdict you are this night to return.

As for George Smith, he is a stranger in this country, of whom we know nothing more than what he has been pleased to inform us in his different declarations, of which a part has not been read for the reasons you heard mentioned; but from thence you will be led to conjecture that the parts which were not read contained very little to his advantage. This man, gentlemen, had the appearance of following a lawful employment and carrying on trade in a shop in this city; but I am afraid there is too good reason to conclude that the character of a grocer, which he assumed, was only meant as a cover to him that he might escape the observation of the public while he was pursuing objects of a very different nature. His counsel have attempted no defence, such as the alibi endeavoured to be proved by the other prisoner; no witnesses have been examined in his exculpation; and his different declarations, which though not legal evidence by themselves, yet when corroborated by the great variety of other evidence led this day, are so full and complete proofs of his guilt that I do not consider it necessary to add one word more as to him.

The other prisoner, Mr. Brodie, is in a different situation. He is known to us all; educated as a gentleman; bred to a respectable business; and removed from suspicion, as well from his supposed circumstances as from the rank he held amongst his fellow-citizens. He was far above the reach of want, and, consequently, of temptation; he had a lawful employment, which might have enabled him to hold his station in society with respectability and credit; he has been more than once officially at the head of his profession, and was a member of the City Council. If, therefore, he, too, is guilty, his situation, in place of alleviating his guilt, is a high aggravation of it. If he indeed prevailed upon himself to descend to the commission of the most detestable crimes, what excuse can be made for him? That he frequented bad company; that he had abandoned himself to gambling, and every species of dissipation; that he has by these means run himself into difficulties, is surely no apology for him.

But, gentlemen, I am not entitled to proceed without substantiating the crime libelled against him. I will go on to state the evidence; and if after a cool and dispassionate consideration, which you are bound to give, and which from the very great attention you have already bestowed, I can have no doubt you will give it; if you are not most thoroughly convinced in your minds that the prisoner is guilty, I do not desire that you should return a verdict against him. I can have no wish that is contrary to material justice.

It is totally unnecessary to go over the evidence tending to show that the Excise Office was actually robbed in the manner mentioned in the indictment, as I suppose that is a fact which will not be disputed, I will therefore recapitulate the heads of the evidence, so far as it appears to me to verify the charge.

Gentlemen, you have heard various objections stated by the prisoners’ counsel against the admissibility of the evidence of Brown and Ainslie, and therefore I will in the first place call your attention to the other evidence, against which no objection has or can be made, and which is, in my opinion, sufficient in itself to establish the guilt of the pannels; and I shall afterwards speak to the evidence of these two men.

The first circumstance which you have in evidence, and to which I call your attention, is the intimate connection between the prisoner Brodie and the other three, Smith, Ainslie, and Brown, who have all confessed themselves guilty of the crime charged; it is admitted by himself in his letters and declaration, and is confirmed by the evidence of Smith’s maid, who said that she had seen them often together in her master’s house; his being often in company with them, gambling with them in different houses, and particularly in Clark’s, a house which, from what we have heard of it this day, ought for the good of society to be razed to the ground or built up, as houses infected by the plague are in times of pestilence.

In the second place, gentlemen, the prisoner was in company with these men on the very night in which the robbery was committed. This is proved by the testimony of Smith’s maid, Grahame Campbell, a witness who it is not pretended had any temptation to perjure herself. She tells you that Brodie came to her master’s house that day in the dusk of the evening; that they were in the upper room all together, and had some cold fowl and herrings; that Brodie was then dressed in an old-fashioned black coat; that she mentioned this circumstance to her mistress; that he went out with Smith, Brown, and Ainslie; and that when he came back later in the evening, he had then changed his dress and had on light-coloured clothes. These are all circumstances highly suspicious, and they would have been likewise sworn to by Smith’s wife, if she had been allowed to be examined; but that is unnecessary, as the facts the witness has deponed to are all probable in themselves, and they are corroborated, to the extent I have mentioned, by the other evidence, and also by Smith’s declarations, which last I do not mean to found upon as evidence against Mr. Brodie, but it is a curious fact.

In the third place, gentlemen, you will observe that the Excise Office was robbed upon Wednesday, the 5th of March. On the Friday night following, information was given to the Procurator-Fiscal by Brown; on the Saturday, Smith and Ainslie were apprehended and committed to prison. And what happens? Brodie goes to the prison to visit them, but is denied access. Is it possible to suppose that a gentleman in Mr. Brodie’s situation would have done this had he been innocent? No, gentlemen, it is not to be supposed.

But attend to what follows. Early the next morning, Brodie sends for Robert Smith, his foreman, and asks him if he had heard any news concerning them; he tells Brodie that Smith, the pannel, and Ainslie were in prison, and so forth, and adds that he hoped his master was not concerned with them. Gentlemen, he knew that Smith and Ainslie were Mr. Brodie’s companions; and you cannot conceive that he would have presumed to put such a question to his master if he had not been convinced in his own mind of his master’s guilt. Mr. Brodie makes no answer to this question. Will it be said that a man conscious of his own innocence would have remained silent upon such an occasion? Gentlemen, I appeal to yourselves; how would any one of you have felt, or what answer would you have returned to a servant who dared put such a question to you?

Brodie at this time tells Smith that he is going out of town for a few days; but you have it in evidence that he left this country, and fled to Flushing. In order to account for this flight you are told a story of a prosecution against him, at the instance of a chimney-sweep, for using false or loaded dice. This is a very strange circumstance to bring in exculpation. I have no hesitation to say that it is the most ignominious defence I ever remember to have heard maintained by a prisoner at that bar; but you cannot believe that that prosecution was the occasion of his flight. He was in no greater danger from it then than he had been in for months before; no step had been taken in that process which could alarm him at this critical time; and it is mere mockery, it is altogether a joke, to pretend that from such a circumstance the prisoner at the bar could have taken up the resolution of banishing himself from his country forever.

Besides, Mr. Brodie, in his declaration before the Sheriff, did not assign this as the cause of his flight. He said that, as he was intimate with Smith and Ainslie, he was afraid they would accuse him of being concerned with them in robbing the Excise Office. He did not so much as mention the defence now set up for him; but his counsel saw that it would be necessary to account for his conduct in some shape or other, and no other appearance of defence occurred but this process. It is impossible to believe this story; and indeed it is impossible to assign any cause for Mr. Brodie’s conduct consistent with his innocence of the crime charged against him.

I would, in the next place, gentlemen, have you to attend to the prisoner’s behaviour when he flies from this place to London. He secretes himself in London for several weeks; search is made for him, but he cannot be found; he admits in one of his letters that he knew that Mr. Williamson was in search of him, but he did not choose an interview; a vessel is freighted for him by some persons, contrary to the duty they owed to their country; she is cleared out for Leith; he goes on board of her in the middle of the night, with a wig on, in disguise, and under a borrowed name; he is carried to Flushing; he changes his name to John Dixon, and writes letters to people in Edinburgh under that false signature, explaining his whole future operations, in consequence of which letters he is traced and apprehended, just when he is on the point of going on board of a ship for New York. If he had been innocent; if he had had nothing else to fear than the story of the loaded dice, it is not possible that he could have conducted himself in this manner.

The letters he writes to Geddes are likewise very strong circumstances; but the other letters, or scrolls, found in his trunk are still stronger. You have had it clearly proven that all these letters are of his own handwriting, and in both of the scrolls he expressly acknowledges the crime for which he now stands at the bar. In one of them he says that he had no “direct” concern in any of the late depredations of Smith, Brown, and Ainslie, excepting “the last fatal one”; in the other the word “direct” is scored out, but in both of them he acknowledges his accession to the last act; by which he can mean no other than the robbery of the Excise Office; for it happened on the Wednesday evening, and Brown gave information of it on the Friday evening immediately after. It was, therefore, in all probability the last of the depredations of this dangerous combination; and Mr. Brodie’s having applied the expression “fatal” to it identifies it beyond all doubt.

Gentlemen, I beg leave now to bring under your consideration what happened in this city after Mr. Brodie absconded. You have it in evidence that his house was searched, and various articles of a very suspicious nature found. A pair of pistols, identified to have been used on the occasion of the robbery, is found under the earth, and the place where they were hid pointed out by the other prisoner Smith; also a dark lanthorn, the one half of it in one place and the other half of it in another. Gentlemen, if Mr. Brodie is really innocent, it appears to me passing strange that these articles should have been so concealed.

All these circumstances, gentlemen, are established by the most unexceptionable evidence; they are connected with and corroborated by each other; and they all point to this conclusion, independent altogether of the direct evidence of Brown and Ainslie, that Mr. Brodie is guilty of the crime charged. They cannot be accounted for upon any other supposition.

In the opposite scale, gentlemen, you have the proof of alibi attempted by the prisoner, which is exceedingly defective and inconclusive. Alibi is a defence seldom resorted to but in the most desperate circumstances, and little regard is in general paid to it, for this good reason that it resolves into an immediate falsification of the whole evidence brought in support of the charge. It is suspicious at all times, but it is peculiarly so when the alibi is confined to the same town in which the crime was committed, within a few minutes’ walk of the place, and is deponed to by witnesses at a great distance of time.

The first witness, gentlemen, brought by the prisoner to establish this defence is Matthew Sheriff, his own brother-in-law, by no means an unexceptionable witness. This gentleman depones that he dined with Mr. Brodie on Wednesday, the 5th of March, and that he was in company with him until eight o’clock that night. He is brought forward singly to prove a fact, which, if true, Mr. Brodie could be at no loss to establish by other unexceptionable evidence. There was another gentleman, he tells you, who dined in company with the pannel that day; and what appears to me to be a very odd circumstance, this gentleman is not called as a witness; nay, more, although Mr. Sheriff recollects a great variety of other circumstances, he does not remember this gentleman’s name. Why is this gentleman not brought forward on this occasion? Why are not some of the servants of the house, or any other person, called to support Mr. Sheriff’s testimony? Mr. Sheriff, then, is only a single witness, and from his near connection with the pannel, he gives his evidence under circumstances that are suspicious, and therefore no weight can be allowed to it.

But even supposing Mr, Sheriff’s testimony to be true, it is by no means inconsistent with the guilt of the prisoner, nor affects the credibility of the prosecutor’s evidence. Grahame Campbell depones that Brodie did not come to Smith’s house until about eight o’clock; and allowing him to have remained with Mr. Sheriff until near eight, the expedition against the Excise Office was not then begun; and you will recollect that Brodie was the last who made his appearance at Smith’s, and that he was expected by his associates a considerable time before he arrived.

Jean Watt is the next witness adduced by the prisoner, who, by her own evidence, appears to be a woman of an abandoned character. She has a family to Mr. Brodie, and was denominated by him, in one of his letters, by the appellation of “a devil.” This witness and her maid no doubt concur most minutely in a very extraordinary fact, which, if it can be believed, amounts to a falsification of the whole other evidence, viz., that Mr. Brodie came to Watt’s house just at eight o’clock, as the bell was ringing, and did not leave her house again till nine o’clock next morning. No doubt she swears pointedly to the night, and so does her servant; but although these two witnesses agree in the day, the hour, and even the minute of Mr. Brodie’s coming to Watt’s house on the 5th of March, yet, when they came to be cross-examined, they did not even agree in days; for Jean Watt said that she did not see Brodie from the Thursday morning, at nine o’clock, till the Saturday afternoon following, yet her maid said that he was twice in the house on the Thursday, both in the forenoon and afternoon; though Sheriff said that Brodie was in his house on the Thursday from three o’clock in the afternoon till eleven o’clock at night. They can give no reason for fixing the night of his visit at Watt’s house to be Wednesday night, except the subsequent flight of the prisoner; and therefore it may have been any other night in that week as well as the one condescended upon.

But, gentlemen, I have no occasion to dispute, and indeed, from the evidence of Helen Alison, I am inclined to believe that the prisoner went on the Wednesday night to Mrs. Watt’s house, and slept there that night; but I have heard nothing, allowing all the witnesses to have spoken what they believed to be true, that goes to prove that he went there until after the crime was committed. Gentlemen, the circumstance which fixes the hour in the memory of both Mrs. Watt and her servant is the ringing of a bell, and we all know that there is a bell that rings at ten o’clock as well as at eight. And it is very far from being improbable that they might both mistake the one bell for the other, either at the time, or afterwards, upon endeavouring to recollect the hour at which Brodie came to them.

Allowing, therefore, gentlemen, that all the witnesses adduced by the prisoner are to be believed, there appears to be nothing in their testimony contradictory to the evidence of the prisoner’s accession to the crime charged; and therefore I can have no doubt that, although the matter rested upon the evidence I have already stated, you could have no hesitation in pronouncing both the prisoners guilty.

But, gentlemen, when, in addition to that evidence, you take into your consideration the testimony of Ainslie and Brown, the two associates of the pannels, if any doubt did remain, it would necessarily be removed. The counsel for the prisoners, aware of this, have objected to the admissibility of both of them.

I admit that the credibility of these witnesses is liable to suspicion, and that if the proof rested upon their evidence alone, I would not call upon you to find the prisoners guilty upon it, but in so far as their evidence is corroborated by the general tenor of the other unexceptionable parts of the proof they are entitled to credit.

To Ainslie it has been objected that a corrupt bargain was made with him by the Sheriff, which, in other words, amounts to this, that he must be a false witness. If the prisoners’ counsel were serious in stating this objection, they ought certainly to have proved it; but, gentlemen, it proceeded entirely upon a mistake in point of fact—upon a supposition that Ainslie had not spoke out until Brodie was apprehended. Gentlemen, I hold Ainslie’s declaration in my hand, and which I offered to read, and which I would now read, if the forms of the Court would allow me, emitted a short while after the robbery was committed, and containing a full and complete disclosure of the whole transaction. But, gentlemen, you will not, you cannot, suspect that there was any such bargain; that there was anything in the present case out of the common course.

A similar objection was made by the counsel for the prisoner to the evidence of Brown, with this addition, that he had been convicted of felony at the Old Bailey. The last part of this objection, gentlemen, is completely answered by the pardon which, by the law of England, where that sentence was pronounced, completely rehabilitated him. Brown is then in even a more favourable situation than Ainslie, for, as he never was charged with the crime for which the prisoners are tried, nor any intention taken up to prosecute him for it, he had even less temptation than Ainslie to swear falsely.

There is therefore nothing in the objections stated to these witnesses, and accordingly the Court have found so. These men, gentlemen, have told you that Brodie was with them when the breaking into the Excise Office was originally planned that he met them at Smith’s house on the night when the robbery was committed, in which particular their evidence is corroborated by the testimony of Grahame Campbell; that he was with them at the commission of the crime, which is the time when he endeavours to prove an alibi; that some of the pistols carried to the Excise Office belonged to him, which pistols were afterwards found in his possession. They have likewise informed you that it was agreed upon that Brodie should be stationed within the door and Ainslie without, and this exactly corresponds with the testimony of James Bonar.

Brown and Ainslie are so consistent with each other and with the whole other evidence adduced, both real and circumstantial, that I am unable to discover a single discrepancy in the whole, excepting where Brown and Ainslie say that, after the robbery, they did not either of them see Brodie again that evening, but Smith’s maid said that they all met again in Smith’s house and supped there, and that Brodie supped along with them. This, however, does not appear to be a fact of any importance or that tends to discredit either of the witnesses, as it is evident that Smith’s maid has confounded the first and second meetings together.

But it is unnecessary for me to enlarge upon particulars which cannot have escaped your own observation, and I shall therefore conclude with remarking that you have in this case more direct evidence of the pannels’ guilt, corroborated by a greater variety of circumstances all coinciding in a most remarkable manner, than I remember to have met with in any other which has occurred to me in the course of my practice.

Gentlemen, I shall only further add that if the prisoner William Brodie, a person who from the nature of his employment had frequent opportunities of being introduced into the houses of others, has been guilty of the crime laid to his charge, and is allowed to escape punishment, the consequences to the inhabitants of this populous city may be of the most serious nature. But, gentlemen, the evidence is before you, and if, upon a fair and deliberate consideration of it, you are convinced of the pannels’ guilt, I can have no doubt that you will do justice to your country by returning a verdict accordingly.