The Man Who Was Jekyll and Hyde (20 page)

But what exhilarating nonsense! The scene, which would seem incredible in modern courtrooms, began when the irrepressible young counsel came to deal with the admissibility of the evidence of the ‘infernal scoundrels’ Ainslie and Brown, and told the jury that these witnesses ought never to have been admitted:

Clerk – My unfortunate client is a very poor man … 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 … But, I, as his most inexperienced and imperfect counsel, will try and do the best I can for the poor man.

Braxfield – Be short and concise, sir, at this time of the morning.

Clerk – Pray, your Lordship, let me proceed.

Braxfield – Well then, proceed, young man.

Clerk – 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 overruled 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. I think a great deal of most improper evidence has been received in this case for the Crown.

Braxfield – 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.

Braxfield – With these admonitions, go on, sir; proceed, sir.

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.

Braxfield – Take care, sir, what you say.

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 … Ainslie contradicts himself, and Brown is not to be believed. With respect to this said Mr John Brown, 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 public.
]

Macers – Silence in court.

Braxfield – Mr Clerk, please restrict your reflections. The court have admitted the witness.

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.

Braxfield – 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.

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.

Braxfield – The court, sir, have already solemnly decided, as you know, on the objections raised by Henry Erskine, 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.

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

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, gentlemen, 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.