Public Anticipation of the Trial—Appearance of Burke and M‘Dougal in the Dock—Opening of the Court—The Debate on the Relevancy of the Indictment.
Public Anticipation of the Trial—Appearance of Burke and M‘Dougal in the Dock—Opening of the Court—The Debate on the Relevancy of the Indictment.
As the day fixed for the trial drew near, the public excitement became more and more intense. The feeling against the culprits was very strong, and while the statement that Hare and his wife were to be accepted as informers was received with a notion of displeasure, it was thought that the revelations they would make would fully compensate for the loss to justice by their escape from punishment. This displeasure was not as yet very definite, for the people were unaware of the real facts of the case, and had only a very hazy and general idea of what was likely to be brought out in court. The public feeling, however, ran so high that the authorities deemed it necessary to take every precaution to prevent a disturbance, and on the evening before the trial the High Constables of Edinburgh were ordered to muster; the police were reinforced by upwards of three hundred men; and the infantry in the Castle and the cavalry at Piershill were held in readiness for any emergency. The trial and its possible outcome was all the talk, and the revelations about to be made were eagerly anticipated.
Early on the morning of Wednesday the 24th December, Burke and M‘Dougal were conveyed from the Calton Hill Jail, where they had been confined, and were placed in the cells beneath the High Court of Justiciary in Parliament Square until the time for the hearing of the case should come. The inhabitants of the city were also early afoot, and crowded to the square anxious to gain admittance to the court-room. “No trial,” said theEdinburgh Evening Courantof the following day, “that has taken place for a number of years past has excited such an unusual and intense interest; all the doors and passages to the court were accordingly besieged at an early hour, even before daylight; and it was with the utmost difficulty, and by the utmost exertions of a large body ofpolice, that admission could be procured for those who were connected with the proceedings. At nine o’clock the court-room was completely filled by members of the faculty and by the jury. Lord Macdonald and another noble lord were seated on the bench.” At twenty minutes to ten o’clock the prisoners were placed in the dock, and this is the description of them given by theCourant:—“Burke is of a short and rather stout figure, and was dressed in a shabby blue surtout. There is nothing in his physiognomy, except perhaps the dark lowering of the brow, to indicate any peculiar harshness or cruelty of disposition. His features appeared to be firm and determined; yet in his haggard and wandering eye, there was at times a deep expression of trouble, as he unconsciously surveyed the preparations which were going forward. The female prisoner appeared to be more disturbed; every now and then her breast heaved with a deep-drawn sigh, and her looks were desponding. She was dressed in a dark gown, checked apron, cotton shawl, and a much worn brown silk bonnet.” The audience eagerly scanned the features of the prisoners, and watched their every movement, during the half-hour that elapsed between their being placed in the dock and the judges ascending the bench. At ten minutes past ten o’clock their lordships took their seats. These were—the Right Hon. David Boyle, Lord Justice-Clerk; and Lords Pitmelly, Meadowbank, and MacKenzie. The Crown was represented by Sir William Rae, Bart., Lord Advocate; and Messrs. Archibald Alison, Robert Dundas, and Alexander Wood, Advocates-depute; with Mr. James Tytler, W.S., agent; while the counsel for Burke were the Dean of Faculty, and Messrs. Patrick Robertson, Duncan M‘Neill, and David Milne; and for M‘Dougal, Messrs. Henry Cockburn, Mark Napier, Hugh Bruce, and George Paton, with Mr. James Beveridge, W.S., one of the agents for the poor. There were thus the best men of the Scottish bar engaged in the trial. The defence, of course, had been undertaken gratuitously by these eminent counsel, but the sequel showed that it suffered nothing at their hands on that account.
The court was fenced in the usual form, and the Lord Justice-Clerk, as the presiding judge, called upon the prisonersto pay attention to the indictment to be read against them. Mr. Robertson, however, interposed by stating that there was an objection to the relevancy of the libel, and he submitted it was proper to make such an objection at this stage of the proceedings. The Lord Justice-Clerk did not see that this was the proper time, but Mr. Cockburn urged that the reading of the document would prejudice the prisoners in respect of certain particulars which he was certain the court would ultimately find were no legal part of the libel. On Lord Meadowbank hinting that an objection at that stage was interfering with the discretion of the court, Mr. Robertson intimated he would not press the matter further, and the indictment was accordingly read.
When this was done, the following special defences were submitted to the court:—For Burke—“The pannel pleads that he is not bound to plead to, or to be tried upon, a libel which not only charges him with three unconnected murders, committed each at a different time, and at a different place, but also combines his trial with that of another pannel, who is not even alleged to have had any concern with two of the offences with which he is accused. Such an accumulation of offences and pannels is contrary to the general and better practice of the court; it is inconsistent with the right principle; and, indeed, so far as the pannel can discover, is altogether unprecedented; it is totally unnecessary for the ends of public justice, and greatly distracts and prejudices the accused in their defence. It is therefore submitted, that the libel is completely vitiated by this accumulation, and cannot be maintained as containing a proper criminal charge. On the merits of the case, the pannel has only to state, that he is not guilty, and that he rests his defence on a denial of the facts set forth in the libel.” For M‘Dougal the defence was—“If it shall be decided that the prisoner is obliged to answer to this indictment at all, her answer to it is, that she is not guilty, and that the Prosecutor cannot prove the facts on which his charge rests. But she humbly submits that she is not bound to plead to it. She is accused of one murder committed in October 1828, in a house in Portsburgh, and of no other offence. Yet she is placed in an indictment along with a different person,who is accused of other two murders, each of them committed at a different time, and at a different place,—it not being alleged that she had any connection with either of these crimes. This accumulation of pannels and of offences is not necessary for public justice, and exposes the accused to intolerable prejudice, and is not warranted, so far as can be ascertained, even by a single precedent.”
Mr. Robertson then went into a long and learned argument in support of these defences. He submitted that both prisoners were prejudiced by being charged together in the same indictment, for they were both put off their guard as to the evidence and productions to be brought against them, and he further pointed out that in respect of the choice of a jury the accused were deprived of advantages given them by the law. If the charges had been separated they would have been able to make a more complete defence, and they would have had twenty challenges at the calling of the jury; but as it was, by the accumulation of pannels and offences, their defence was hampered and their number of challenges limited. He quoted in his favour both Scotch and English authorities—apologising, however, for bringing forward the latter—and in concluding said—“When your lordships look, then, at this case, in all the aspects I have set before you—when you see that there are accumulated and combined charges against different prisoners—when you see the atrocious nature of these charges, the number of the witnesses, the declarations, and the number of the articles libelled—and when you see the humane and salutary principles of our law, and the practice of this court,—your lordships will not be inclined to form a precedent, which, in thefirstplace, would be injurious to the law of the country; and, in thenextplace, would be injurious to the unhappy persons now brought to this bar.”
This speech caused a feeling of admiration in the court, for the advocate had put forward his arguments in a most able manner; but there was also something akin to dismay in the minds of many present lest the culprits should escape because of any flaw in the indictment.
The Lord Advocate had a difficult task before him, but he confidently rose up to reply to the arguments adduced from theother side of the bar, and attacked them in a most spirited manner. He thought he could completely defend his method of bringing the prisoners to trial, and show that it was not only sanctioned by the law of the country, but also by numerous precedents, even by those quoted by his learned friend. But his object in placing the female prisoner in this indictment was that she might derive benefit rather than prejudice. Had he tried the man first, and afterwards the woman, adducing against her the same, or nearly the same, evidence brought against Burke, she would have had good reason to complain of prejudice. However, since the objection had been raised he would not then proceed against her, but would do so ten days hence. “But if she should suffer prejudice,” said he, “from the evidence in Burke’s trial going abroad, let it be remembered it is not my fault. She and her counsel must look to that—it is their proceeding, not mine.” Turning to the objections in Burke’s case, he said:—“As to the second objection, whether or not I am entitled now to go to proof on the three charges here exhibited, or shall proceedseriatim, I am aware that this is matter of discretion with the court. In so far, however, as depends upon me, I declare that I will not consent to this being dealt with in the last of these modes. No motive will induce me, for one moment, to listen to any attempt to smother this case; to tie me down to try one single charge, instead of all the three. If I had confined myself to one of those charges; if I had served the prisoner with three indictments, and put the pannel to the hardship of appearing three times at that bar, I would have done one of the severest acts that the annals of this court can show. I am told that the mind of the public is excited; if so, are they not entitled to know, from the first to the last of this case; and is it not my duty to go through the whole of these charges? I would be condemned by the country if I did not, and what to me is worse, I should deserve it.” His lordship then went over the authorities cited by Mr. Robertson, and contended that they all bore against the arguments brought forward by the counsel for the defence.
Replying for the defence, the Dean of Faculty very learnedly examined the authorities quoted, with the object of showingthat the action of the public prosecutor, in framing the libel as he had done, was illegal, and without precedent.
The pleadings finished, Lord Pitmilly delivered the leading judgment. He reviewed the arguments urged from both sides of the bar, and signified his approval of the course the Lord Advocate intimated he would take with M‘Dougal. As for Burke, he had stated through his counsel that he would suffer prejudice by going to trial on an indictment which charged him with three acts of murder, unconnected with each other, and his lordship therefore thought the prisoner should be tried for each of the acts separately. Lords Meadowbank and Mackenzie, and the Lord Justice Clerk, concurred in the opinion given expression to by Lord Pitmilly, and supported it by elaborate reasonings.
The Lord Advocate, thus tied down, intimated that he would proceed with the third charge libelled—the murder of Docherty—and that he would also proceed against M‘Dougal as well as Burke, for she could suffer no prejudice in being brought to trial for this single act, on which she was charged as act and part guilty along with Burke. This decision rather surprised the Dean of Faculty, who thought the diet against the woman had been desertedpro loco et tempore, but the prosecutor claimed to proceed as he had indicated. Their lordships then pronounced an interlocutor of relevancy:—“Find the indictment relevant to infer the pains of law; but are of opinion, that in the circumstances of this case, and in consequence of the motion of the pannel’s counsel, the charges ought to be separately proceeded in: and that the Lord Advocate is entitled to select which charge shall be first brought to trial, and His Majesty’s Advocate having thereupon stated that he means to proceed at present with the third charge in the indictment against both pannels—therefore remit the pannels with that charge, as found relevant, to the knowledge of an assize, and allow the pannels, and each of them, a proof in exculpation and alleviation,” &c.
The prisoners were then asked to plead to the indictment as amended, and they both offered the plea of “Not Guilty.” A jury was empanelled—fifteen men, as required by the law of Scotland. The preliminary objections were thus got over,and the trial could be proceeded with; but the result of the discussion was that the public were deprived of the satisfaction of knowing in an authoritative manner the mystery connected with the deaths of Mary Paterson and Daft Jamie.
The Trial of Burke and M‘Dougal—Circumstantial Evidence—Hare’s Account of the Murder of Docherty—What he Declined to Answer—Mrs. Hare and her Child.
The Trial of Burke and M‘Dougal—Circumstantial Evidence—Hare’s Account of the Murder of Docherty—What he Declined to Answer—Mrs. Hare and her Child.
The first witness called for the Crown was James Braidwood, a builder, and master of the Edinburgh fire brigade, who attested the correctness of the plan of the houses in Wester Portsburgh prepared for use in the trial, and which has been reproduced in this volume. He was followed by Mary Stewart, in whose house, in the Pleasance, Mrs. Docherty’s son resided, and in which that unfortunate woman had slept the night before the murder. She remembered the circumstances well. The old woman was in good health when she last saw her in life, but she had no difficulty in recognising the body in the Police Office on the Sunday following. Further, she identified the clothing found in Burke’s house, and produced in court, as having belonged to the deceased. Charles M‘Lachlan, a lodger, corroborated this testimony. The shop-boy of Rymer, the grocer in the West Port, in whose premises Burke met Docherty, described what took place between them on the memorable Friday morning, and also mentioned the purchase by Burke on the Saturday of a tea-chest similar to the one in which the body had been conveyed to Knox’s rooms. But the relationship between the prisoners and Docherty was brought out by a neighbour, Mrs. Connoway, who related that she had seen the old woman in their house during the day, and that it had been explained to her by M‘Dougal that the stranger was a friendof Burke. Later in the evening the old woman was in her house, when they were joined by Hare and his wife and the two prisoners. A dram was going round, and they began to be merry, until at last some of them took to dancing. In the course of this Docherty hurt her feet. The company afterwards returned to Burke’s house, and Mrs. Connoway went to bed, but heard no noise or disturbance during the night. Next day she went in to see M‘Dougal, and, missing the stranger, she asked what had become of her, when she was told that “Burke and her had beenowerfriendly together, and she [M‘Dougal] had turned her out of doors: that she had kicked her out of the house.” The evidence of Mrs. Law, another neighbour, was similar in effect, with the addition that in the course of the night she had heard the noise of “shuffling or fighting” proceed from the house of the prisoners. More to the point, however, was the testimony of Hugh Alston, a grocer, residing in the same property. Between eleven and twelve o’clock on the night of Friday, the 31st October, while going along the passage that led from his house to the street, he heard a noise proceeding from Burke’s house. The sound was as if two men were quarrelling, but what most attracted his attention was a woman’s voice calling “murder.” He went towards the door and listened, and he heard the two men making a great noise as if wrangling or quarreling. This continued for a few minutes, and then he heard something give a cry—a sound which seemed to proceed from a person or animal being strangled. After this remarkable sound had ceased he again heard a female voice cry “murder,” and there was a knocking on the floor of the house. As he was afraid of fire, Alston went to look for a policeman. Not finding one he returned to his old stance, but the noise by this time had ceased. When he heard next night of the body having been found in the house the whole incident of the previous evening came back to him.
Interesting as all this evidence was, the testimony of David Paterson, “keeper of the museum belonging to Dr. Knox,” as bearing on what was termed “the complicity of the doctors,” attracted more attention. This witness gave an account ofhow, about midnight, Burke called on him and took him to his house in Portsburgh, to point out that he had a subject for him. He identified Burke, M‘Dougal, and Hare and his wife as being in the house while he was there, and he further stated that he had seen them the night after, when he paid the two men an instalment of the price of the body. He was examined at some length as to the appearance of the body when he gave it up to the police, and said the marks and the look of the face indicated that death had been caused by suffocation or strangulation, while the general appearance showed that the corpse had never been interred. He knew Burke and Hare, and had often had dealings with them for bodies. There were, he knew, people in the town who sold bodies that had never been interred; and he had known gentlemen who had attended poor patients, and who, on their death, gave a note of their place of abode, and this in turn was handed to men such as he supposed Burke and Hare to be, to get the bodies. This was startling information to the bulk of the people of Scotland, but, as has been shown in some of the early chapters of this work, it was nothing new to a certain class of the population of Edinburgh and other towns. The succeeding witnesses were Broggan, Mr. and Mrs. Gray, and Fisher the detective, but as their evidence has been embodied in the account of the murder itself, it need not be repeated here.
Plan of Houses in Wester Portsburgh.
Larger Image
Prepared for use at the Trial of Burke & McDougal.For Explanatory Key SeePage XII.
William Hare was next brought forward, and his appearance caused quite a sensation in court. It was known that on his evidence and that of his wife the case for the Crown principally rested, and “expectation stood on tiptoe” to hear the account he would give of the foul transaction in which he was a prominent actor. His position as an informer was peculiar, and Lord Meadowbank cautioned him “that whatever share you may have had in the transaction, if you now speak the truth, you can never afterwards be questioned in a court of justice,” but if he should prevaricate he might be assured that the result would be condign punishment. The Lord Justice Clerk further informed him that he was called as a witness regarding the death of Docherty, and in reply to this he asked—“T’ ould woman, sir?” He was then put on oath, being sworn on a NewTestament having on it a representation of the cross, a mode only adopted in Scotland when the witness belongs to the Roman Catholic Church. In answer to the Lord Advocate he said he had known Burke for about a year. On the 31st October he had a gill with Burke, and the latter then told him that in his house there was an old woman whom he had taken off the street, and who would be a goodshotto take to the doctors. From this wordshothe understood that Burke intended murdering her. His evidence of the events up to the time of the quarrel about eleven o’clock was quite consistent with all that has already been related, but his account of the actual murder is worthy of reproduction. Having described the fight, during which the woman tumbled over the stool, he said, in answer to the Lord Advocate:—
He [Burke] stood on the floor;—he then got stride-legs on the top of the woman on the floor, and she cried out a little, and he kept in her breath.
Did he lay himself down upon her? Yes; he pressed down her head with his breast.
She gave a kind of a cry, did she? Yes.
Did she give that more than once? She moaned a little after the first cry.
How did he apply his hand towards her? He put one hand under the nose, and the other under her chin, under her mouth.
He stopped her breath, do you mean? Yes.
Did he continue this for any length of time? I could not exactly say the time; ten or fifteen minutes.
Did he say anything to you when this was going on? No, he said nothing.
Did he then come off her? Yes; he got up off her.
Did she appear dead then? Yes; she appeared deada wee.
Did she appear to be quite dead? She was not moving; I could not say whether she was dead or not.
What did he do then? He put his hand across her mouth.
Did he keep it there for any length of time? He kept it two or three minutes.
What were you doing all this time? I was sitting on the chair.
What did he do with the body? He stripped off the clothes.He took it and threw it at the foot of the bed, doubled her up, and threw a sheet over her; he tied her head to her feet.
While this was going on, Hare continued, the two women had run into the passage, and they did not return until all was over. He then detailed the proceedings of the Saturday, as already described.
Hare’s cross-examination, however, gave rise to an animated discussion. Mr. Cockburn, senior counsel for M‘Dougal, asked him—“Have you been connected in supplying the doctors with subjects upon other occasions than those you have not spoken to yet?” The answer was—“No,—than what I have mentioned”; but the Lord Advocate objected to this line of examination. Mr. Cockburn appealed to the bench, and the witness was withdrawn while the question was being discussed. He insisted he was within his right in putting such a question, though the witness might answer it or not as he chose, but it would be for the jury to judge of the credit due to his evidence after it was seen how he treated the question. The Lord Advocate, on the other hand, contended that the caution given the witness when he entered the box precluded examination on any subject other than what was involved in the case they were trying. Authorities were again cited by both sides, and after considerable discussion, the judges pronounced an interlocutor declaring that the question might be put, but that the witness must be warned by the court that he was not bound to answer any question that might criminate himself.
Hare was recalled, and Mr. Cockburn resumed his cross-examination.
“Were you,” said the counsel, “ever concerned in carrying any other body to any surgeon?”
“I never was concerned about any but the one that I have mentioned,” replied Hare.
“Now, were you concerned in furnishing that one?” asked Mr. Cockburn.
“No,” responded the witness, “but I saw them doing it.”
“It is now my duty,” interposed the Lord Justice Clerk, addressing Hare, “to state to you, in reference to a question in writing, to be put to you, that you are not bound to make any answer to it so as to criminate yourself. If you do answerit, and if you criminate yourself, you are not under the protection of the court. If you have been concerned in raising dead bodies, it is illegal; and you are not bound to answer that question.”
“Now, Hare,” said Mr. Cockburn, after he had repeated the judge’s warning, “you told me a little ago that you had been concerned in furnishing one subject to the doctors, and you had seen them doing it—how often have you seen them doing it?”
The witness thought a moment, and then declined to answer the question.
“Was this of the old woman the first murder that you had been concerned in? Do you choose to answer or not?”
“Not to answer,” replied Hare, after a minute’s consideration.
“Was there murder committed in your house in the last October?” persisted Mr. Cockburn.
“Not to answer that,” was all the reply Hare would give.
The rest of the cross-examination was confined chiefly to the murder of Docherty, but Hare’s original evidence was in no way shaken by it, and he was removed from court still in custody.
If Hare’s appearance created interest in court, that of his wife caused quite as much. She was ushered into the witness-box carrying her infant child in her arms. The poor creature was suffering from whooping-cough, and every now and then its “kinks” interrupted the examination, sometimes very opportunely, when the questions put required a little consideration on the part of the witness. Mrs. Hare’s evidence contained only one point calling for special notice. That was when, after relating how she ran out of the house when she saw Burke get upon Docherty, and returned to the house and did not see the woman, she was asked—“Seeing nothing of her, what did you suppose?” Her answer was—“I had a supposition that she had been murdered.I have seen such tricks before.” This hint was not followed up. But the remarkable fact about her whole testimony was that it corroborated, with exception of one or two points, that of her husband. There can be no doubt that they had conned their story togetherbefore they were apprehended—for it was not likely they would have an opportunity of making it up while they were in custody. Be that as it may, their evidence was wonderfully alike.
The evidence of the police surgeon and of the medical men who made an examination of the body, was next taken up, and it all tended to show that death had been caused by suffocation or strangulation, the result of violence and not of intoxication. The reading of the prisoners’ declarations concluded the case for the prosecution, and no evidence was brought forward for the defence.
The Trial—Speeches of Counsel—Mr. Cockburn’s Opinion of Hare—The Verdict of the Jury.
Without any delay, on the reading of the declarations, the Lord Advocate at once commenced his address to the jury, and the public feeling is fully reflected in the following remarks made by him at the outset:—“This is one of the most extraordinary and novel subjects of trial that has ever been brought before this or any other court, and has created in the public mind the greatest anxiety and alarm. I am not surprised at this excitement, because the offences charged are of so atrocious a description, that human nature shudders and revolts at it; and the belief that such crimes as are here charged have been committed among us, even in a single instance, is calculated to produce terror and dismay. This excitement naturally arises from the detestation of the assassins’ deeds, and from veneration of the ashes of the dead. But I am bound to say, that whatever may have occasioned this general excitement, or raised it to the degree which exists, it has not originated in any improper disclosures, on the part of thoseofficial persons, who have been entrusted with the investigations connected with these crimes; for there never was a case in which the public officers to whom such inquiries are confided, displayed greater secrecy, circumspection, and ability. It is my duty to endeavour to remove that alarm which prevails out of doors, and to afford all the protection which the law can give to the community against the perpetration of such crimes, by bringing the parties implicated to trial; and I trust it will tend to tranquilize the public mind, when I declare I am determined to do so. I cannot allow any collateral considerations, connected with the promotion of science, to influence me in this course; and I am fully determined that everything in my power shall be done to bring to light and punishment those deeds of darkness which have so deeply affected the public mind.” Having reviewed the evidence in the case, his lordship turned to the question of the admissibility and reliability of the testimony given by Hare. He pointed out that it would have been impossible to make out a case against the accused without the assistance of some of the individuals connected with the crimes; and argued that an acquittal, after a trial on the evidence brought before the magisterial inquiry, would probably have sent the accused parties back to their former practices, whatever they were, with increased encouragement and confidence. The public would have remained entirely ignorant of the extent to which such crimes had been carried by these persons; whether these four individuals comprehended the whole gang, or if there were others connected with them, or whether similar gangs did not exist in other places. Such a state of ignorance appeared to him altogether inconsistent with the security of the public; and he considered a knowledge of these matters indispensible, and as being of infinitely more public importance than any punishment which could be inflicted on the offenders. He did not think that such information was too dearly purchased by admitting some of these individuals to give evidence, and he was persuaded the country, when this matter came to be calmly considered, would support him in the propriety of the choice he had made. He admitted that by availing himself of such information henecessarily excluded the possibility of bringing these witnesses to trial for any offence in which they had so acknowledged a participation. This, in the then state of excited feeling, might be regarded as unjust, but on that account the exercise of sound judgment was all the more required of him. The testimony given by these witnesses, his lordship contended, was thoroughly credible. Hare especially appeared to speak the truth; but he also pointed out that there was independent evidence which corroborated in part the statements made by these persons. He concluded his task by demanding at the hands of the jury, “in name of the country, a verdict of guilty against both these prisoners at the bar.” The speech for the Crown was listened to with intense interest, and no wonder, for in addition to the importance of the issues at stake, it was acknowledged to be one of the best and most eloquent ever delivered by Sir William Rae.
The speech by the Dean of Faculty was more laboured and less spontaneous than that of the Lord Advocate. He felt himself beset with difficulties, especially the prejudice against his client, Burke, which was raised by the motive alleged in the indictment. “The motive for committing the offence which is here ascribed to the prisoner,” he said, “involves in it a peculiar practice or employment which may be in itself a crime, though it is not necessarily criminal; but whether it implies public criminality or not, it involves in it a purpose which is revolting to the feelings of the generality of mankind, and calculated, almost above every other thing, to produce a prejudice in the minds of those who come to consider the case itself. For need I say that, when it is imputed to the prisoner that his object was to procure what they are pleased to call subjects for dissection, the very statement of such an occupation, stamps a degree of infamy on the individual engaged in it, and you are apt to set it down in the very commencement of the inquiry, that he is a person capable of any turpitude, and to imagine that to prove him guilty of any crime, however enormous, requires less evidence than that which you would consider indispensible to the conviction of any other person.” He implored the jury to cast any such prejudice aside, and to consider the case solely upon the merits ofthe evidence adduced. This he proceeded to analyse, making, as a matter of course, the most of the discrepancies and inconsistencies, and he sought to impress upon the jury that the whole of the case for the prosecution depended on the evidence ofsocii criminis—the alleged accomplices in the deed charged. He asked them if they could put the smallest faith in the testimony of Hare and his wife, who had nothing to restrain them from telling the most deliberate series of falsehoods for the purpose of fixing the guilt of the murder on the prisoners, and extricating themselves from the condition in which they stood. Hare, when asked if he had ever committed other murders, had declined to answer the question, yet this was the person who gave evidence before them, not with a paltry money motive, but with the tremendous motive of securing himself from an ignominious death. Let them change the position of parties, and suppose that Hare was at the bar, and Burke in the witness-box. He did not know what case they might get from Burke and M‘Dougal, but nothing could hinder them, as witnesses, from making out as clear a case against Hare and his wife, totally transposing the facts, and exhibiting the transaction as altogether the reverse of what Hare said it was. “What,” exclaimed the learned Dean, “if that ruffian who comes before you, according to his own account, with his hands steeped in the blood of his fellow creatures, breathing nothing but death and slaughter; what if that cold-blooded, acknowledged villain, should have determined to consummate his villany, by making the prisoners at the bar the last victims to his selfishness and cruelty? Do you think that he is incapable of it?”
Mr. Henry Cockburn, for M‘Dougal, confined himself almost entirely to the credibility of Hare and his wife. “Hare,” he said, “not only acknowledged his participation in this offence, but he admitted circumstances which aggravated even the guilt of murder. He confessed that he had sat coolly within two feet of the body of this wretched old woman while she was expiring under the slow and brutal suffering to which his associate was subjecting her. He sat there, according to his own account, about ten minutes, during which her dying agonies lasted, without raising a hand or a cry to save her.We who only hear this told, shudder, and yet we are asked to believe the man who could sit by and see it. Nor was this the only scene of the kind in which they had been engaged. The woman acknowledged that she ‘had seen other tricks of this kind before.’ The man was asked about his accession on other occasions, but at every question he availed himself of his privilege, and virtually confessedby declining to answer.” “The prosecutor,” continued the learned counsel, “seemed to think that they gave their evidence in a credible manner, and that there was nothing in their appearance beyond what was to be expected in any great criminal, to impair the probability of their story. I entirely differ from this; and I am perfectly satisfied that so do you. A couple of such witnesses, in point of mere external manner and appearance, never did my eyes behold. Hare was a squalid wretch, in whom the habits of his disgusting trade, want, and profligacy, seem to have been long operating in order to produce a monster whose will as well as his poverty will consent to the perpetration of the direst crimes. The Lord Advocate’s back was to the woman, else he would not have professed to have seen nothing revolting in her appearance. I never saw a face in which the lines of profligacy were more distinctly marked. Even the miserable child in her arms, instead of casting one ray of maternal softness into her countenance, seemed at every attack [of hooping-cough] to fire her with intense anger and impatience, till at length the infant was plainly used merely as an instrument of delaying or evading whatever question it was inconvenient for her to answer.” Having dealt with the question of corroboration, Mr. Cockburn remarked:—“The simple and rational view for a jury to take is that these indispensible witnesses are deserving ofnofaith in any case; and that the idea is shocking of believing them, to the effect of convicting in a case that is capital. The prosecutor talks of their being sworn! What is perjury to a murderer! The breaking of an oath to him who has broken into the ‘bloody house of life!’” In concluding, he called for a verdict of not proven:—“Let the public rage as it pleases. It is the privilege and the glory of juries always to hold the balance the more steadily, the more that the storm ofprejudice is up. The time will come when these prejudices will die away.”
The Lord Justice-Clerk then summed up, carefully going over the evidence to the jury, and emphasising those points which he thought deserving of their attention.
The jury retired to consider their verdict at half-past eight o’clock on the morning of Thursday, 25th December—Christmas day—the trial having continued from ten o’clock the previous forenoon. Burke seemed to consider a conviction certain not only in his own case but also in that of M‘Dougal, for he is said to have given her directions how to conduct herself, and told her to observe how he behaved when sentence was being pronounced. After an absence of fifty minutes the jury returned to court, and the chancellor or foreman, Mr. John M‘Fie, a Leith merchant, gave,viva voce, the following as the verdict:—
“The jury find the pannel, William Burke, guilty of the third charge in the indictment; and find the indictment not proven against the pannel, Helen M‘Dougal.”
The audience applauded the finding of the jury, and the news was quickly conveyed to the enormous crowd outside in Parliament Square, who cheered to the echo. Burke remained cool, and turning to his companion he remarked,—“Nellie, you’re out of the scrape.” The Lord Justice-Clerk then thanked the jury for the unwearied pains and attention they had bestowed on the case, and said it must be satisfactory to them to know that in the opinion of the court their verdict appeared to be well founded. It was afterwards reported that the jury had considerable difficulty in coming to a decision, and that the verdict they gave in was something of the nature of a compromise. An old legal maxim has it that a wife acts under the constraint of her husband, and it was believed to be in view of this that the jury found the charge against M‘Dougal not proven.
The Last Stage of the Trial—Burke Sentenced to Death—The Scene in Court—M‘Dougal Discharged—Duration of the Trial.
The Last Stage of the Trial—Burke Sentenced to Death—The Scene in Court—M‘Dougal Discharged—Duration of the Trial.
The last stage of a long trial had now been reached. After the verdict against Burke there was only one course open to the judges, but still the attention of the audience was given most earnestly to the proceedings. Burke seemed callous, for he had felt certain of the doom that was about to be pronounced upon him. The Lord Advocate moved for the judgment of the court, and the Lord Justice-Clerk called upon Lord Meadowbank to propose the sentence.
Having briefly reviewed the facts of the case, as brought out in the evidence, Lord Meadowbank proceeded:—“Your lordships will, I believe, in vain search through both the real and the fabulous histories of crime for anything at all approaching this cold, hypocritical, calculating, and bloody murder. Be assured, however, that I do not state this either for exciting prejudices against the individual at the bar, or for harrowing up the feelings with which, I trust, he is now impressed. But really, when a system of such a nature is thus developed, and when the actors in this system are thus exhibited, it appears to me that your lordships are bound, for the sake of public justice, to express the feelings which you entertain of one of the most terrific and one of the most monstrous delineations of human depravity that has ever been brought under your consideration. Nor can your lordships forget the glowing observations which were made from the bar in one of the addresses on behalf of the prisoners, upon the causes, which, it is said, have in some measure led to the establishment of this atrocious system. These alone, in my humble opinion, seem to require that your lordships should state roundly that with such matters, and with matters of science, we, sitting in such places, and deciding on such questions as that before us, have nothing to do. It is our duty to administer the law as handed down to us by our ancestors,and enacted by the legislature. But God forbid that it should ever be conceived that the claims of speculation, or the claims of science, should ever give countenance, to such awful atrocities as the present, or should lead your lordships, or the people of this country, to contemplate such crimes with apathy or indifference. With respect to the case before us, your lordships are aware that the only sentence we can pronounce is the sentence of death. The highest law has said—‘Thou shalt not kill,—thou shalt do no murder;’ and in like manner, the law of Scotland has declared, that the man guilty of deliberate and premeditated murder shall suffer death. The conscience of the prisoner must have told him, when he perpetrated this foul and deliberate murder, and alike violating the law of God, and the law of man, he thereby forfeited his life to the laws of his country. Now that detection has followed, therefore, the result cannot be by him unexpected; and I have therefore only further to suggest to your lordships, that the prisoner be detained in the tolbooth of Edinburgh, till the 28th day of January next, when he shall suffer death on a gibbet by the hands of the common executioner, and his body thereafter given for dissection.”
Lord Mackenzie concurred, saying that the punishment proposed by Lord Meadowbank was the only one that could be pronounced.
The Lord Justice-Clerk then assumed the black cap, and addressing Burke, who had risen from his seat to receive sentence, said:—“William Burke, you now stand convicted, by the verdict of a most respectable jury of your country, of the atrocious murder charged against you in this indictment, upon evidence which carried conviction to the mind of every man that heard it, in establishing your guilt in that offence. I agree so completely with my brother on my right hand, who has so fully and eloquently described the nature of your offence, that I will not occupy the time of the court in commenting any further than by saying that one of a blacker description, more atrocious in point of cool-blooded deliberation and systematic arrangement, and where the motives were so comparatively base, never was exhibited in the annals of this or of any other court of justice. I have no intention ofdetaining this audience by repeating what has been so well expressed by my brother; my duty is of a different nature, for if ever it was clear beyond the possibility of a doubt that the sentence of a criminal court will be carried into execution in any case, yours is that one, and you may rest assured that you have now no other duty to perform on earth but to prepare in the most suitable manner to appear before the throne of Almighty God to answer for this crime, and for every other you have been guilty of during your life. The necessity of repressing offences of this most extraordinary and alarming description, precludes the possibility of your entertaining the slightest hope that there will be any alteration upon your sentence. In regard to your case, the only doubt which the court entertains of your offence, and which the violated laws of the country entertain respecting it, is whether your body should not be exhibited in chains, in order to deter others from the like crimes in time coming. But taking into consideration that the public eye would be offended by so dismal an exhibition, I am disposed to agree that your sentence shall be put into execution in the usual way, but unaccompanied by the statutory attendant of the punishment of the crime of murder—viz., that your body should be publicly dissected and anatomised, and I trust that if it ever is customary to preserve skeletons, yours will be preserved, in order that posterity may keep in remembrance your atrocious crimes. I would entreat you to betake yourself immediately to a thorough repentance, and to humble yourself in the sight of Almighty God. Call instantly to your aid the ministers of religion of whatever persuasion you are; avail yourself from this hour forward of their instructions, so that you may be brought in a suitable manner urgently to implore pardon from an offended God. I need not allude to any other case than that which has occupied your attention these many hours. You are conscious in your own mind whether the other charges which were exhibited against you yesterday were such as might be established against you or not. I refer to them merely for the purpose of again recommending you to devote the few days that you are on the earth, to imploring forgiveness from Almighty God.”
The sentence was formally recorded in the books of the court, with the addition that the place of execution was specified as in the Lawnmarket of Edinburgh, and the body of the deceased was ordered to be delivered to Dr. Alexander Monro, Professor of Anatomy in the University of Edinburgh, to be by him publicly dissected and anatomised.
The Lord Justice-Clerk then turned to Helen M‘Dougal and said:—“The jury have found the libel against younot proven; they have not pronounced younot guiltyof the crime of murder charged against you in this indictment. You know whether you have been in the commission of this atrocious crime. I leave it to your own conscience to draw the proper conclusion. I hope and trust that you will betake yourself to a new line of life, diametrically opposite from that which you have led for a number of years.” An interlocutor of dismissal was pronounced, and M‘Dougal was free from the pains of the law, though she had still to fear the fury of an unappeased public.
TheEdinburgh Evening Courantof Saturday, 27th December, thus described the appearance of the prisoners when the Lord Justice-Clerk addressed them:—“The scene was altogether awful and impressive. The prisoner stood up with unshaken firmness. Not a muscle of his features was discomposed during the solemn address of the Lord Justice-Clerk consigning him to his doom. The female prisoner was much agitated, and was drowned in tears during the whole course of the melancholy procedure.”
The trial was thus concluded, the court having sat, with certain intervals for refreshment, from ten o’clock in the forenoon of Wednesday, the 24th of January, until nearly ten o’clock next morning. Burke, it has been seen, was cool and collected, his mind having been made up before the judicial proceedings began as to how they were likely to end. About four o’clock on Wednesday afternoon he asked one of the jailors near him when dinner would be provided, and on being informed that the court would not adjourn for that meal until about six o’clock, he begged to be given a biscuit or two, as he was afraid he would lose his appetite before the dinner hour. M‘Dougal, however, was not so calm, and during thewhole course of the trial manifested an amount of anxiety as to her position not shown by her companion.