whereby the dignified course of the proceedings was frequently enlivened. Clerk had then been at the bar less than three years; this was the most important case in which he had yet been employed; and it is said to have been his first appearance in the Justiciary Court. The remarkable and characteristic energy with which on that occasion he conducted his client’s defence attracted the attention of the profession, and laid the foundations of his subsequent reputation and practice.
An interesting point of law arose in connection with the calling of Smith’s wife as a witness for the prosecution against Brodie. Her proposed evidence was vigorously objected to by Clerk on account of the relation in which she stood to his client—both panels were included in one indictment, and it was impossible to criminate the one without the other. A sharp encounter with Braxfield ensued; but the Court admitted the witness. When Mrs. Smith entered the box, however, Alexander Wight, for Brodie, stated a fresh objection, viz., that the maiden name of the witness was wrongly given in the Crown list as “Mary Hubbart,” whereas her real name was “Hibbutt,” which, on her being requested by Braxfield to sign her name, turned out to be the fact. In view of this misnomer the objection was sustained and the witness dismissed.
Another legal point of interest arose when it was proposed to identify the five-pound bank-note libelled on, the Dean of Faculty objecting that it was not a “bank-note,” as described in the indictment, having been issued by a private banking company in Glasgow. The Court sustained the objection, holding that nothing was to be deemed a bank-note but one issued from a bank established by Royal Charter.
The crucial question of the case, however, both for the prosecution and the defence, was whether or not Ainslie and Brown should be admitted as witnesses to prove the panels’ guilt. So far the proof of their complicity in the robbery was mainly circumstantial. Although Smith, in his second declaration, had confessed his accession to the crime, yet, having pleaded not guilty, this was not in itself sufficient to convict him; while as regards the Deacon, apart from the statements of Smith, his guilt was only to be inferred from his flight and certain passages in his letters. It was, therefore, of vital importance to the prisoners that the direct evidence of their accomplices should be excluded, while the Crown case equally depended for a verdict upon its admission.
To the determining of this question each side accordingly addressed its strongest efforts, and the debate which followed will be found both lively and instructive. The authority of Sir George Mackenzie was quoted against the admission of the witnesses; but that venerable jurist was somewhat severely handled. The principal objection to Ainslie, as stated by the Dean of Faculty, was that he had been himself accused of the crime he was now to fasten upon another, and that the Sheriff of Edinburgh had offered him his life if he would criminate Brodie, of whose complicity he had hitherto said nothing. In the case of Brown, the battle was joined upon the precise effect of the pardon which had been obtained for that interesting criminal, and to what extent the pristine purity of his character was thereby restored. The Court, however, repelled the objections, and admitted both witnesses; and the evidence which they gave finally disposed of all chance of the panels’ acquittal.
At the conclusion of Brown’s evidence the Lord Justice-Clerk addressed that truculent scoundrel as follows:—“John Brown, you appear to be a clever fellow, and I hope you will now abandon your dissipated courses, and betake yourself to some honest employment.” To which Brown suitably replied, “My Lord, be assured my future life shall make amends for my past conduct.” He then left the box, and so passes out of the story, of which he was undoubtedly “the greater villain,” and surely never did witness less merit judicial commendation than John Brown alias Humphry Moore.
The Crown case closed with the reading of the prisoners’ declarations and the Deacon’s letters, such portions of the former as related to matters unconnected with the trial being withheld from the jury. For the defence no witnesses were called for Smith, and an attempt to prove an alibi made on behalf of Brodie was entirely unsuccessful, the principal witnesses to it being his brother-in-law, Matthew Sheriff, and his mistress, Jean Watt, both obviously friendly to the Deacon’s interests.
At one o’clock on the morning of Thursday, 28th August, the exculpatory proof was closed, and the Lord Advocate began his address to the jury. His Lordship’s speech, while an able and convincing statement of the Crown case, was marred by one or two passages which would now be considered to exceed the limits of legitimate advocacy. Such are the references to facts “which would have been likewise sworn to by Smith’s wife, if she had been allowed to be examined”; the assumption that the Deacon’s foreman, Robert Smith, was convinced of his master’s guilt; the use made of Ainslie’s declaration, which that witness was told had been destroyed, and which was not before the Court; and the passage in the peroration referring to the “consequences to the inhabitants of this populous city” of the Deacon’s acquittal.
At the conclusion of the evidence the Dean of Faculty and John Clerk had held a final consultation, when it was arranged that Clerk should speak first for Smith, and that Erskine should follow for Brodie, and strengthen or take up such points as he might think necessary. In order to put himself in fighting form, Clerk, we are told, drank a bottle of claret before commencing his address. This speech, the only extant example of his celebrated method of advocacy, was, in all the contemporary reports, reduced to a minimum for fear of offending the judges. Fortunately, however, a later writer, Peter Mackenzie, has preserved, in his “Reminiscences of Glasgow” (Glasgow, 1866), a full account of the suppressed passages, which he gives on the unquestionable authority of Æneas Morrison, the agent for Smith, who himself furnished the author with these particulars. They have accordingly been incorporated in the following report.
When Clerk, in the course of his address, came to deal with the evidence of Ainslie and Brown, a scene, almost incredible to us nowadays, occurred between the irrepressible young advocate and the overbearing judge. Clerk informed the jury that, in his opinion, these witnesses ought never to have been admitted, a statement which the bench naturally resented, and he went on to insist that, notwithstanding the ruling of the Court, the jury should discard their evidence entirely, as they (the jury) were to judge of the law as well as of the fact. In the course of the discussion which followed, the intervention of the Lord Advocate was met by a graceful allusion to His Majesty’s Tory Administration as “villains” likely to contaminate the Crown.
A heated altercation between Clerk and Braxfield ensued, and, finally, the latter bade him go on with his speech at his peril. On Clerk refusing to proceed unless allowed to do so in his own way, Braxfield invited the Dean of Faculty to commence his address for Brodie, which that gentleman declined to do. Thereupon the Lord Justice-Clerk was about to charge the jury himself, when Clerk, starting to his feet and shaking his fist at the bench, cried out, “Hang my client if ye daur, my Lord, without hearing me in his defence!” These amazing words, the like of which had seldom echoed in judicial ears, caused the utmost sensation in Court, and, after an awful pause, the judges left the bench to hold a consultation. But, on their return, instead of anything tremendous taking place, his Lordship civilly requested Clerk to continue his address, and the incident terminated.
Thus was the redoubtable Braxfield forced to yield to the persistence of the fiery young counsel. On reading the discussion as reported, one cannot but think that Clerk was clearly in the wrong, and that his contention as to the jury being judges both of the fact and of the law was, as Braxfield roundly put it, “talking nonsense.” Nor does it appear that the line which he saw fit to adopt could in any way benefit his unfortunate client, whose interests would have been better served by more temperate methods. Clerk, however, was thoroughly pleased with his performance, and subsequently observed that it was “the making of him” professionally.
It is said that Clerk’s indignant repudiation of the prosecutor’s argument that the King’s pardon made Brown an honest man reached the ears of Robert Burns, and led him afterwards to write the famous lines—
A prince can mak’ a belted knight,
A marquis, duke, an’ a’ that;
But an honest man’s aboon his might,
Gude faith, he mauna fa’ that!
At three o’clock in the morning the Dean