Deacon Brodie – Guilty or Not

A stranger,  climbing from The Mound up to  the Lawnmarket in Edinburgh, on seeing the bright facade of Deacon Brodie’s Tavern, might be excused from giving some ecclesiastical association to the title of Deacon Brodie. Such a connotation would be far from the truth.

William Brodie was actually from a good Edinburgh family  which had earlier moved to the city from Morayshire. Reports describe him as a small, slender man, with a high forehead. He is also said to have had an ‘unfortunate turn in one eye’ and a scar on his face, but was always impeccably dressed. Like his father Francis, he was Deacon (President in today’s terms) of the Incorporation of Wrights – another name for carpenters or cabinet makers.

Brodie was only 41 when his father died in 1782 and he inherited his father’s thriving business, a large property in Brodie’s Close on the south side of the Lawnmarket and £10,000. In addition, as the new Deacon of Wrights, he was granted an automatic seat on the Town Council, a position which provided primary access to Council jobs in his field.

Apparently reputable, prosperous and a man of some standing in Edinburgh Society, there was another side to Deacon Brodie. He was an inveterate gambler and his inherited fortune soon disappeared at the then prevalent cock fights and tavern card and dice games of 18th century Edinburgh. It is said he even cheated while gambling but lost nevertheless.

He also had two mistresses; Ann Grant, who lived in Cant’s Close with three children fathered by Brodie and Jean Watt, who lived with her two children by Brodie in Libberton’s Wynd.

He was a keen theatre-goer and, in particular, is said never to have missed a production of the Beggar’s Opera in the new Theatre Royal. Its theme of unconventional life has been suggested to have affected Brodie’s own way of life.

Such a lifestyle could not be maintained on what Brodie could earn legally, not even with privileged access to Council work. Allegedly, he assumed criminal activities to finance his desired way of life. Initially this is said to have taken the form of a series of burglaries at properties where, for example, he had had access to keys through his Council work. He was never arrested or charged but, if true, he made his first mistake when began to work with accomplices.

Through his gambling activities at Clarke’s Tavern in Fishmarket Close, he met an Englishman named George Smith and two others with extensive criminal records, Andrew Ainslie and Humphrey Moore – the latter more often known as John Brown. It was with those three that an allegedly armed Deacon Brodie attempted to raid the Excise Office in Chessels Court on the night of Wednesday 8th March 1788.

The enterprise did not go to plan due to the unexpected return to the office of Excise man James Bonnar. Brodie, wearing long, dark clothing, was said to have been outside on watch and ran off on the appearance of James Bonnar.

Despite Brodie’s suggested cowardly departure, the entire gang got clear of the Excise Office but a series of subsequent events led to their apprehension. News of the burglary at Chessels Court spread through old Edinburgh. There seemed little likelihood of catching the culprits until, on Friday 11th March, John Brown called on Sherriff Clerk William Middleton to confess. He provided information in return for a King’s Pardon which, under English Law, would erase all his past criminal records.

Initially he only named Ainslie and Smith as his accomplices. The following Sunday, perhaps still wondering why he had not been arrested, Brodie hastily left the city. In keeping with a previous habit, when allegedly fencing stolen goods in Derby, he travelled to Dunbar to join the southbound mail coach. It was his intention to travel to Holland, which he achieved, and thence to set up business in New York.

In Holland, he gave a fellow Scot some letters to bring back to friends in Edinburgh, but the fellow traveller instead handed over the letters to the authorities. An officer was despatched, again via Dunbar, where Brodie was remembered boarding the mail coach, to find and extradite Brodie for trial.

He and Smith would be the only two gang members tried for the excise office burglary because Ainslie and Moore/Brown had now both agreed to become Crown witnesses in return for not being charged. In Brodie’s absence, Smith had also confessed. He later withdrew that confession, but, as the law was then applied, the damage was done.

The Deacon and Smith were subsequently convicted and hanged. The question is, should they have been? Today, almost certainly not – in fact, given the doubtful admissibility of the evidence and direction from the Bench, probably a Not Guilty, at worst a Not Proven, verdict might have resulted. There was no appeal system in 18th century criminal cases, except for a possible King’s Pardon. The penalties associated with the charges they faced were hanging or, if the Bench considered mitigation, transportation to the Colonies.

The Bench consisted of five judges – a number which, although possible, would be extremely unlikely for such charges today. The Lord Justice Clerk, Lord Braxfield, sat with Lords Hailes, Eskgrown, Swinton and Stonefield. In keeping with the then prevailing procedures, Braxfield chose the fifteen male members of the jury. An obvious fault before the trial even began was the inclusion in that fifteen of William Creech, a close council associate of Brodie, who would today surely have been excluded because of that association. Not only was Creech allowed to remain on the jury, he published his account of the trial only days after its conclusion.

Lord Braxfield, Robert McQueen, grandson of a Lanark gardener, who achieved his position through Dundas patronage, was nevertheless a man of great legal ability and acknowledged strong character. Often referred to as “The Hanging Judge” it is claimed R. L. Stevenson based his unfinished Weir of Hermiston on Braxfield.

Lord Braxfield had been a friend of Brodie’s father but it seems that he had decided before the trial that Brodie was guilty. There is evidence in the trial transcripts that Braxfield continually impressed his particular ideas on his fellow members of the Bench.

Ilay Campbell, the King’s Advocate, led for the prosecution, assisted by Solicitor General Dundas, a nephew of Henry Dundas, who had arranged for Braxfield to be Lord Justice Clerk. John Clerk of Penicuik, later to become Lord Eldin, in what was to be his first High Court trial, was engaged to defend Smith. The then Dean of Faculty, Henry Erskine, had been engaged to defend Brodie.

All of these law officers, in addition to their court differences, were of widely differing political persuasions, which often interfered with proceedings and were of no help to the accused. The Defence teams were active Whigs while the prosecution and judges were Tories.

The trial started at 9 o’clock on Wednesday morning and continued, without a break, until 6 o’clock on Thursday morning. Evidence which was led against Brodie and Smith was mostly circumstantial. Nothing actually placed them at the locus and the Excise Man Bonnar could not identify the fleeing figure as Brodie, although he knew Brodie well. There was nothing damning or conclusive without the evidence of Ainslie and Moore.

Alibis provided by Mrs Smith for her husband and by Jean Watt and one of her neighbours for Brodie effectively left the matter in the balance. Indeed, the alibis might have given the balance to the accused, but the entire question of guilt would hinge on the admissibility of evidence from Ainslie and Moore.

The former, from the time of his arrest, had persistently denied involvement by the Deacon but, after his extradition from Holland, the Sherriff gave Ainslie the choice of incriminating Brodie or hanging himself. Ainslie, not surprisingly, became a Crown witness. There were strong Defence objections to the deal but they were, in keeping with the arbitrary dealings of the time, overruled by Braxfield, allowing Ainslie to give his evidence.

The Defence, however, still held hopes that corroborative evidence from Moore would not be allowed because the man was ‘infamous’ under Scots Law, being a known criminal and so not permitted to bear witness. However, the Prosecution had obtained a King’s Pardon which, under English Law, absolved the man of all previous wrongdoings.

Whether or not the Royal Pardon was recognised under Scots Law was the subject of a heated and prolonged discussion between Counsel and the Bench – particularly between John Clerk on behalf of Smith and Lord Braxfield. Hitherto there was no precedent or record of applicability but, on this occasion, the Bench ruled that Moore’s evidence should be heard – effectively sealing the fate of Smith and Brodie. The Jury were also told to disregard other evidence, such as the alibis, in favour of the accused.

The Jury delivered their Guilty verdict at midday on Thursday – a time directed by Braxfield at his summing up. Brodie and Smith were, perhaps inevitably, sentenced to execution. The alternative of being sent to the Colonies apparently was never considered.

The trial itself contained many irregularities which today could have brought an early end to proceedings. There is probably little doubt that Brodie was guilty but there is also little doubt that, given the pre-trial conduct of the judiciary and standard of evidence led at the trial, any half decent contemporary Q.C. might have ‘got him off’.

Brodie and Smith were taken to Edinburgh’s Tolbooth where they remained until 2nd October 1788, when sentence was carried out. Ironically, the apparatus used for the execution had been designed and constructed by Brodie  in his capacity of carpenter for the Town Council.

After the execution, Brodie was hastily removed by friends, who supposedly made pre-arranged efforts to revive him. It seems unlikely that they succeeded but equally, there are old Edinburgh rumours that a later inspection of his grave found it empty and Brodie was reportedly seen years later, alive and well, in Paris.