by Rick Wilson
The open-air crowds, meanwhile, took in the spectacle of the arrival of the scarlet-robed and full-wigged Braxfield, who had walked from his elegant home in George’s Square to reach Parliament House in good time for the 9 a.m. start of the trial on the grey morning of Wednesday 27 August 1788. Inside the court, at the appointed hour and preceded by a macer bearing the Justiciary Mace, he led the five judges to their seats and nodded a greeting to the other main legal players in the drama: Ilay Campbell, the King’s Advocate, leading for the prosecution, assisted by Solicitor General Dundas, a nephew of Henry Dundas (who had helped Braxfield to become Lord Justice Clerk) and advocates William Tait and James Wolfe Murray; for Smith’s defence, advocates John Clerk and Robert Hamilton; and for Brodie’s defence, the Dean of Faculty, Henry Erskine, along with advocates Alexander Wight and Charles Hay. There would be extra tension in court as these officers were divided by more than points of law: the defence team were all Whigs, while the prosecution and judges were Tories.
Was it the backing of Henry Erskine that had made Brodie so perky? The services of this ‘chief ornament of the Scottish bar’ had been, apparently secured by his friends and – as an enthusiast for fighting cocks – he is said to have commented, ‘So now we’ve got the best cock that ever fought.’ And according to the Edinburgh Advertiser, Brodie never lost his cool confidence: ‘His 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.’
The trial began with a reading of the charges against the two men:
WILLIAM BRODIE, sometime Wright and Cabinetmaker in Edinburgh, and GEORGE SMITH, sometime Grocer there, both prisoners in the Tolbooth of Edinburgh, You are indicted and accused at the instance of Ilay Campbell, Esq., His Majesty’s Advocate, for His Majesty’s interest: THAT ALBEIT, by the laws of this, and of every well-governed realm, THEFT, more especially when attended with house-breaking, and when committed by breaking into a house used or kept as an Excise Office, or other public office, under cloud of night, and from thence abstracting and stealing money, is a crime of an heinous nature, and severely punishable: YET TRUE IT IS, AND OF VERITY, That You, the said William Brodie, and George Smith, are both, and each, or one or other of You, guilty actors, or art and part, of the said crime, aggravated as aforesaid: IN SO FAR AS, upon the night of the 5th day of March, last, in this present year of our Lord 1788, or upon one or other of the days or nights of that month, or of February immediately preceding, or of April immediately following. You, the said William Brodie, and George Smith, did, by means of false keys, or other instruments, wickedly and feloniously break into the house in which the General Excise Office for Scotland was then kept, in Chessels’s buildings, on the south side of the High-street of Canongate of Edinburgh, within the royalty or liberties of the city of Edinburgh, and county of Edinburgh, and did thence feloniously abstract and steal money, to the amount of Sixteen pounds Sterling, or thereby, consisting partly of banknotes, and partly of silver and halfpence. And You, the said George Smith, having been afterwards apprehended, and brought before Archibald Cockburn, Esq., Sheriff-depute of the county of Edinburgh, did, in his presence, emit three several declarations; the first of date the 8th day of March, the second of date the 10th day of March, and the third of date the 19th day of March, all in this present year of our Lord 1788: And having afterwards been brought before John Stewart, Esq., Sheriff-substitute of the said county, You did, in his presence, emit a fourth declaration, of date the 17th day of July, likewise in this present year 1788: The first of which declarations was signed by the said Archibald Cockburn, the second and third by you, the said George Smith, and the said Archibald Cockburn, and the fourth by you, the said George Smith, and the said John Stewart.
AND FURTHER, You, the said William Brodie, having, in the month of March last, when the said George Smith was committed to prison, left Edinburgh, and fled from this country; and having afterwards been brought back, and taken into custody, did, upon the l7th day of July, in this present year 1788, in presence of the said Archibald Cockburn, Esq., emit a declaration, which was signed by you, the said William Brodie, and the said Archibald Cockburn; the whole of which declarations, together with a letter written by You, the said William Brodie, and signed John Dixon, dated at Flushing, Tuesday, 8th April, 1788, twelve o’clock forenoon, and addressed to Mr Matthew Sheriff, upholsterer, Edinburgh; another letter, or two letters, on one sheet of paper, written by You the said William Brodie, and signed with your initials, dated Thursday, 10th April, 1788, and addressed to Mr Michael Henderson, Grassmarket, stabler, Edinburgh; an unsigned scroll, or copy of a letter, in the hand-writing of You, the said William Brodie, marked No. 1 without date or address; another unsigned scroll, or copy of a letter, in the hand-writing of You, the said William Brodie, marked No. 2 without date or address; an account, or state, in the hand-writing of You, the said William Brodie, entitled, “A state of my affairs, as near as I can make out at present from memory, having no other assistance”; a letter, dated London, 1st May, 1788, signed Lee, Strachan, and Co. and addressed to Mess. Eml. Walker and Co., merchants, Philadelphia; a gold watch, with a chain, seal, and key; a chest, or trunk, containing various articles; a five-pound banknote; an iron coulter of a plough; two iron wedges; an iron crow; a pair of curling irons or toupee tongs; a spur; a dark lanthorn; a pair of pistols; several false keys and picklocks; and two spring-saws; are all to be used in evidence against You the said William Brodie and George Smith; and, for that purpose, will be lodged in the hands of the clerk of the High Court of Justiciary, before which You are to be tried, in order that You may have an opportunity of seeing the same: AT LEAST, time and place foresaid, the said house in which the General Excise Office for Scotland was then kept as aforesaid, was feloniously broke and entered into, and a sum of money feloniously and theftuously taken and stolen therefrom as aforesaid; and You the said William Brodie, and George Smith, above complained upon, are both, and each, or one or other of You, guilty thereof, actor or actors, or art and part. ALL WHICH, or part thereof, being found proven by the verdict of an assize, before the Lord Justice-General, Lord Justice-Clerk, and Lords Commissioners of Justiciary, You, the said William Brodie, and George Smith, OUGHT to be punished with the pains of law, to deter others from committing the like crimes in all time coming.
ILAY CAMPBELL
(His Majesty’s Advocate, for His Majesty’s interest)
The prisoners were signalled to stand while Lord Braxfield asked: ‘William Brodie, you have heard the indictment raised against you by His Majesty’s Advocate – are you guilty of the crime therein charged, or not guilty?’
Brodie replied: ‘My Lord, I am not guilty.’
‘George Smith – are you guilty of the crime therein charged, or not guilty?’
Smith replied: ‘Not guilty, my Lord.’
The judge then swore in the fifteen jury members five at a time, repeating: ‘You swear by Almighty God, and as you shall answer to God at the great day of judgment, that you will truth say, and no truth conceal, so far as you are to pass upon this assize.’
The fifteen were: Robert Forrester, banker; Robert Allan, banker; Henry Jamieson, banker; John Hay, banker; William Creech, bookseller; James Carfrae, merchant; John Kinnear, banker; William Fettes, merchant; John Milne, founder; Dunbar Pringle, tanner; Thomas Campbell, merchant; Francis Sharp, merchant; James Donaldson, printer; John Hutton, stationer; and Thomas Cleghom, coachmaker.
There were just short of 100 witnesses for the prosecution, while those standing up in Brodie’s defence numbered a mere twenty-five. Packed as it was with characters, curiosity, opinions, facts, sharp legal combat and an intense interest that still captivates the people of Edinburgh and beyond, the trial lasted a mere twenty-one hours after entering early Thursday morning then taking a few hours’ break before seeing the jury’s verdict delivered at 1 p.m.
‘Intense interest’ will always be
a subjective term for whoever uses it, of course, and in selecting and commenting on several aspects of the trial – without recording the entire trial verbatim – this writer hopes readers will feel its essential flavour has been imparted.
Excise Office Witnesses
Did anyone see the Brodie gang robbing the Excise Office? Not quite. While the project faltered because of the unexpected return to the office of Excise Deputy Solicitor James Bonnar, a hunched figure in a long, dark coat was not recognised. But the incident prompted Brodie to make a sharp exit with slim pickings. The other gang members, John Brown, George Smith and Andrew Ainslie, also got away, and as news of the burglary at Chessels Court spread around the city, it seemed unlikely that any of them would be caught – until Brown decided to confess to Sheriff Clerk William Middleton almost a week later. He offered information on all the gang’s crimes in return for the advertised reward and a King’s Pardon, which, under English law, would wipe clean all his past criminal records. At first he named only Ainslie and Smith as his accomplices. But it was on hearing this, and perhaps expecting his name to arise at any moment, that Brodie made his great, if short-lived, escape from justice.
Questioned at the trial, the following people could not put names to the shadowy figures who broke so crassly into their usually well-ordered head-down routine lives on the night of 5 March 1788:
James Bonnar, deputy-solicitor of Excise: I recollect having occasion to call at the Excise Office at about half-past eight in the evening, and as I thought it was probable that there might be still some person in the office, I went straight forward to the door without calling for the key, and finding the door on the latch, I opened it and went in. Just as I entered, a man, who appeared to be dressed in a black coat and cocked hat, stepped out. He seemed to be in a hurry, and I stepped aside to give way to him. He was a square-built man, and was rather taller than me. I took no suspicion, thinking it was some of the people belonging to the office, detained later than usual. I went upstairs to the solicitor’s office, and into the room in which I usually write. I remained there about ten minutes, came down again, and then went away. I saw no person either in the entry or the court as I came out.
William Mackay, guard at the Excise Office: 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 Office.
Alexander Thomson, accountant of Excise: 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 doorkeeper, 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. 3d., 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.
Laurence Dundas, housekeeper of the Excise Office: 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 … 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 immediately came to the office. Mr Thomson told me 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.
Janet Baxter, servant to Adam Pearson, assistant secretary of the Excise: I was out upon a message about eight o’clock that night and, returning homewards, I met an acquaintance, with whom I conversed for a little in the entry to Chessels 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.
So far, the evidence led against Brodie and Smith was mostly circumstantial. As the Excise officer Bonnar had not been able to identify the fleeing figure as Brodie – although he knew him – no observation had actually placed the city councillor at the scene. All three of Brodie’s gang had now confessed – and although his co-accused Smith had withdrawn his confession, the gang leader’s fate could very well depend now on the admissibility of evidence from Brown and Ainslie.
Admissible … or Not?
The admissibility of certain persons’ evidence was to test the court’s legal brains and patience to the limit, especially in view of bargains made with Brown and Ainslie, who, having initially held his tongue in reluctance to incriminate Brodie, had been given the choice of testifying against him or hanging. ‘No man could withstand such a temptation,’ said the Dean of Faculty Henry Erskine, ‘and it is impossible that the court can receive the testimony of a witness in such circumstances.’
But unsurprisingly, despite such strong defence objections to the deal – finally overruled by Braxfield – Ainslie became a Crown witness and was called to speak.
One not allowed to speak was Brown’s wife Mary, not so much because of her relationship with him but because of a misspelling of her name on the witness sheet.
Brown himself, however, also got the green light despite the defence position that corroborative evidence from him should not be allowed because he was ‘infamous’ under Scots law, being a known criminal and so not permitted to bear witness. However, the pro
secution had obtained a King’s Pardon, which, under English law, absolved him of all previous wrongdoings.
These decisions were quietly enraging John Clerk, the young defence counsel (for Smith), who had clearly resolved to keep his powder dry before creating an almighty explosion towards the end of proceedings.
In the meantime, however, the other two ‘absolved’ members of Brodie’s gang stood to give evidence that could only be seen to involve and damn their erstwhile boss. Such as:
Andrew Ainslie: I am acquainted with both William Brodie and George Smith, the prisoners at the bar, and also with John Brown alias Humphry Moore. I remember that the Excise Office was broke into upon Wednesday, the 5th of March last. I knew before that that it was to be broken into, but how long I cannot tell. Brown and the prisoners and I frequently talked of it before, and Brown and I went often to the Excise Office in the evenings in order to observe at what hour the people left it, and in consequence of repeated observations we discovered that the door was usually locked about eight o’clock and that there were two men, an old and a younger man, who came night about to watch the office about ten o’clock. Afterwards Brown and I went out one afternoon to a house at Duddingston, where we drank a bottle of porter, and saw a woman whom I took to be the landlady. We then went to a field in the neighbourhood, from which we took the coulter of a plough and two iron wedges, which we carried to the Salisbury Crags and hid there. At this time there was a black dog in company with us. We had fixed on Wednesday, the 5th of March, for committing the said robbery, and allowed the coulter to remain in Salisbury Crags until about six o’clock of the evening of that day, when Brown and I, it being then dusk, went out and brought the coulter of the plough to the house of the prisoner, George Smith, on purpose to use it in breaking into the Excise Office.
