by Rick Wilson
Braxfield – Sir, I tell you that the jury have nothing to do with the law, but to take it simpliciter from me.
Clerk – That I deny. [Consternation in court.]
Lord Hailes – Sir, will you deny the authority of this High Court?
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.
Braxfield – You are talking nonsense, sir.
Clerk – My Lord, you had better not snub me in this way. I never mean to speak nonsense.
Braxfield – Proceed – gang on, sir.
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?
Lord Advocate – He has, as I have shown you, received His Majesty’s free pardon.
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? [Applause in court.]
Braxfield – Macers, clear the court if there is any more unruly din.
Lord Advocate [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.
Clerk – I hope His Majesty’s Crown will never be contaminated by any villains around it. [Gasps of sensation in court.]
Braxfield [to Lord Advocate] – Do you want his words noted down?
Lord Advocate – Oh no, my Lord, not exactly yet. My young friend will soon cool in his effervescence for his client.
Braxfield [to Mr Clerk] – Go on, young man.
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.
Braxfield – We cannot tolerate this, sir. It is an indignity to this High Court – a very gross indignity, deserving of the severest reprobation.
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 he sat down.]
Braxfield – Go on, sir; go on to the length of your tether.
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.
Braxfield – Beware of what you are about, sir. [Here he sat down again.]
Lord Braxfield – Are you done, sir, with your speech?
Mr Clerk – No, my Lord, I am not.
Braxfield – Then go on, sir, at your peril.
Lord Hailes – You had better go on, Mr Clerk. Do go on.
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.
It was at this point that Clerk’s most passionate outburst left everyone in court – especially Braxfield – open-mouthed with amazement. The judge sought to break the impasse by ordering that ‘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’. But Erskine seemed to decline the invitation, shaking his head negatively. What? Another mutineer? Braxfield had had enough. He would simply omit that stage. ‘Very well,’ he said, ‘the court will now proceed and discharge its duty’ – by which he meant he would now address the jury in his final charge. It was the provocation that sparked Clerk’s now-famous explosion, as he jumped to his feet, shaking his fist at the bench:
Hang my client if you dare, my Lord, without hearing me in his defence!
This sensational moment stunned the court. While the public cheered and applauded, all the main players looked at each other in wide-eyed astonishment. There was nothing for it but to suspend proceedings. And when the judges retired to the robing room to hold an urgent consultation, there was general expectation that on their return there would be some sort of formal chastisement at least for the daring young counsel.
In the event, however, the wise old heads found a common strategy that rose no further to the young man’s bait, and Clerk was allowed to proceed without interruption. And this he did, raising point after practical point in Smith’s defence, while also making sure he had not entirely upstaged his senior colleague: ‘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 Henry Erskine …’ and concluding that ‘there has not been adduced on this trial sufficient legal evidence to warrant a verdict against Mr Smith’.
Indeed, Erskine’s 7,500-word address to the jury at 3 a.m. was as thoroughly competent as had been expected, described as ‘a fine example of forensic oratory’, and also touched – more delicately – on the admissibility issue:
You have on the one side a direct and positive proof of alibi which, if the witnesses are not foresworn, must preclude the possibility of the prisoner’s guilt; and that these witnesses have departed from the truth there is not the shadow of reason to suspect. On the other hand, the whole direct evidence against the prisoner is the testimony of two witnesses who, besides being destitute of all right to be believed as witnesses in any case, have been brought to give evidence in the present in circumstances of the very strongest temptation to convict my unhappy client whether innocent or guilty, as but for their having accused him, one or both of them must have stood at his bar in his place.
But if the lords had avoided more confrontation by backing off from the battle, they had not on by any means conceded the war. In his final address to the jury, Lord Braxfield – still alert at 4.30 a.m. – was determined to win it, with surprisingly sensitive language, describing the crime in question as ‘the most hurtful to society’ and expressing distress at the situation of the prisoners – ‘particularly one of them’. He had known Brodie’s father as ‘a very respectable man, and that the son – himself, too, educated to a respectable profession – should be arraigned at this bar for a crime so detestable, is what must affect us all, gentlemen, with sensations of horror’.
He continued:
That the Excise Office was broke into is not disputed. The question therefore is, who broke into it? Was it the prisoners? Now, to ascertain this point you have, in the first place, gentlemen, the evidence of Brown and Ainslie, and if they have sworn truth the prisoners must be guilty. To the admissibility of these witnesses there can be no objection. Were not evidence of this sort admissible, there would not be a possibility of detecting any crime of an occult nature. Had a corrupt bargain, indeed, been proved, by which they were induced to give their evidence, there might have been room for an objection to their admissibility. But no such bargain has even been alleged against the public prosecutor in the present case. And as to their being accomplices, this, gentlemen, is no objection at all. A proof by accomplices may display, it is true, a corruption of manners, which alone can render such proof necessary. But it is impossible to go into the idea that their testimony is therefore inadmissible.
Nor is there, in the present case, any reason to suppose that they were under improper temptations to give their evidence. Each was separately called upon by the court, and it was explained to them that they ran no hazard unless from not speaking the truth, and that their being produced as witnesses secured them from all punishment, except what would follow upon their giving false evidence. Under such circumstances, you cannot suppose, gentle
men, that they would be guilty of perjury without any prospect of advantage to themselves, and merely to swear away the lives of these prisoners at the bar. Their credibility, to be sure, rests with you, gentlemen; and if you find anything unnatural or contradictory in their evidence you will reject it. But there is nothing in it unnatural or contradictory.
Upon the whole, gentlemen, taking all the circumstances of this case together, I can have no doubt in my own mind that Mr Brodie was present at the breaking into the Excise Office; and as to the other man. Smith, as I have already said, there can be still less doubt as to him. If you are of the same opinion, gentlemen, you will return a verdict against both the prisoners; but if you are of a different opinion, and do not consider the evidence against Brodie sufficiently strong, you will separate the one from the other, and bring in a verdict accordingly.
Braxfield ended his charge at six o’clock on Thursday morning, and the court adjourned until one o’clock in the afternoon – when the Chancellor of the jury handed in their written verdict, sealed with black wax, unanimously finding both prisoners guilty. The Lord Justice Clerk then addressed the prisoners thus:
William Brodie and George Smith, it belongs to my office to pronounce the sentence of the law against you. You have had a long and fair trial, conducted on the part of the public prosecutor with the utmost candour and humanity, and you have been assisted with able counsel, who have exerted the greatest ability and fidelity in your defence.
I wish I could be of any use to you in your melancholy situation. To one of you it is altogether needless for me to offer any advice. You, William Brodie, from your education and habits of life, cannot but know everything suited to your present situation which I could suggest. It is much to be lamented that those vices, which are called gentlemanly vices, are so favourably looked upon in the present age. They have been the source of your ruin … I hope you will improve in the short time you have now to live by reflecting upon your past conduct and endeavouring to procure, by a sincere repentance, forgiveness for your many crimes. God always listens to those who seek Him with sincerity.
Braxfield then pronounced sentence of death, requiring:
The prisoners William Brodie and George Smith to be carried from the bar back to the Tolbooth of Edinburgh, therein to be detained till Wednesday, the first day of October next, and upon that day to be taken furth of the said Tolbooth to the place fixed upon by the magistrates of Edinburgh as a common place of execution, and then and there, betwixt the hours of two and four o’clock afternoon to be hanged by the necks, by the hands of the Common Executioner, upon a gibbet, until they be dead; and ordain all their moveable goods and gear to be escheat and inbrought to His Majesty’s use: which is pronounced for doom.
How did they take it? A contemporary account said: ‘Mr Brodie discovered some inclination to address himself to the court, but when restrained by his counsel contented himself with bowing to the bench.’ Aeneas Morrison, the agent for Smith, reported:
The prisoners behaved in a manner different from each other, Smith appearing to be much dejected, especially at receiving his dreadful sentence …
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.
When the court rose and the prisoners were removed to the Tolbooth, escorted by the City Guard amid a huge crowd of spectators, William Brodie was seen to have a strange smirk on his face.
What did he now have up his lacy-cuffed sleeve?
7
DEATH (OR NOT?)
BY HANGING
‘Fare ye well, Bailie! You needn’t be surprised if ye see me among ye yet, to take my share of the deid-chack!’
The ‘deid-chack’ was a meal enjoyed by the provost and council after an execution, and this valedictory (or not) message was spoken out by a surprisingly optimistic Deacon Brodie as he prepared to meet his maker (or not).
The truths, half-truths and outright fabrications that persist today regarding Deacon Brodie’s dramatic demise had begun to take root even before he stepped up to the gallows on the first day of October 1788. He was already a less-than-admired legend in his lifetime, though that life was about to be cut short at the age of 47. Or was it? Feeding the many stories about the end, or not, of this diminutive but larger-than-life character was his strangely relaxed and almost arrogant attitude towards the final curtain. A huge crowd of around 40,000 had gathered to witness the spectacle before his jailhouse, the dilapidated fourteenth-century Old Tolbooth, a stone’s throw from his Lawnmarket workshop and home; to many of them something about his easy demeanour suggested he did not believe the curtain was really going to fall. Perhaps it was just his final defence mechanism, a what-the-hell denial in the face of such a momentous prospect or – more likely – there was something more complex and cunning going on inside the scheming brain of this man, who had always believed he was one of life’s survivors.
Was he one of death’s survivors too? Could he really cheat the hangman’s rope? The most common scandalous tale that has lived on was that he engaged a surgeon to fashion a steel tube to fit inside or – more likely – around his throat and protect it from the squeezing of the rope during the ‘fatal’ drop … and that the executioner had been bribed not to notice the odd bulge around his neck. Indeed, the Deacon was seen to converse with the hangman several times at the scaffold while having the rope’s length adjusted, this apparently with a professional eye, as the skilled cabinet-maker was said to have been instrumental in the previous year’s redesign of the awful apparatus, whose old-school ladders had been replaced by a clever mechanism – irony of ironies, if true!
Probably not true, however. The neck-protection theory was itself hanged over time, though the idea of some collusion with the executioner was never quite written off. But Brodie’s part in the death-dealing redesign, a tale probably generated by irony-loving romantics, was later relegated to ‘probably minimal’ by less gullible and more serious academic types such as William Roughhead, the Scottish lawyer, editor and essayist on ‘matters criminous’. He wrote in his Classic Crimes that, after considerable research, he was sure that although the Deacon may have had some hand in the design, the new concept ‘was certainly not of his construction, nor was he the first to benefit by its ingenuity’.
But if Brodie were not so familiar with the new gallows as suspected by some who believed he knew how to manipulate its workings to his advantage, and if the metal windpipe theory was too incredible, what would explain the condemned man’s quiet confidence in the face of his impending doom? What was going on?
Another, largely true local story might have had a significant bearing on his bearing, as it were. Some sixty years earlier, fish-hawker Maggie Dickson had been publicly hanged in the Grassmarket for killing her unwanted baby whose father was not her absent husband – but despite being pronounced dead on her parting from the noose, she survived due to a combination of circumstances. These were her relatively youthful health, those earlier not-so efficient gallows and a rough cart ride part of the six-mile way to Musselburgh, during which, to her friends’ astonishment, she started banging, shouting and knocking from inside her wooden coffin. Seen to be very much alive on the lifting of the lid, she then enjoyed unusual leniency from the law – which, believing her survival to be God’s will, declared her officially free.
Some cynics said she had used her feminine wiles to have the ropemaker
weaken the noose – and used them also to win over the forgiveness of the law officers, though it was clear that luck had been very much on her side. Not to mention the shrugged shoulders of fate, for in some enlightened cultures it was held by common consent, though never actually by law, that it was permissible to remove a hanged person from the foot of the gallows and attempt to revive them; so that if they survived they were morally entitled to go free. Such attempts sometimes succeeded, but they were often thwarted by the density and interference of the thronging crowds.
In any case, ‘Half Hangit Maggie’, as Miss Dickson then became half-affectionately called by the locals, became something of a community character as she had two more children – by her husband – and lived on for another forty years, moving awkwardly around the city with her head permanently locked over to one side.
Brodie was doubtless only too familiar with the saga of her salvation and he surely took heart from it as he contemplated his fate. Could he too pull that one off? One persistent story was that he had made an arrangement with an Edinburgh-resident French doctor, Pierre Degravers (who claimed to have been ‘Professor of Anatomy and Physiology in the Royal Academy of Science’ in Paris) – the same man perhaps who didn’t stick his neck out to save Brodie’s with a metal throat-tube? – after a ‘consultation’ with him in his Old Tollbooth cell on a day close to his date with destiny. And if Brodie’s life prospects were looking pretty grim, his living conditions were even grimmer; so it would have surprised few if intolerance of his rat-infested existence had moved him to a last request for treatment for depression.
But in the thirty-four days between his trial beginning in late August 1788 and his early October rendezvous with the scaffold, he somehow managed to keep up his spirits by dressing well despite being in chains, singing extracts from The Beggars’ Opera and playing draughts with himself and any interested visitors – after cutting out a rough draughtboard on the stone floor of his dungeon.
