Burke’s Spiritual Condition—The Erection of the Scaffold—The Criminals Last Hours—Scene at the Execution—Behaviour of the People.
Burke’s Spiritual Condition—The Erection of the Scaffold—The Criminals Last Hours—Scene at the Execution—Behaviour of the People.
The hour for the closing scene of the Burke and Hare tragedy was now almost come, and Burke, to all appearance, seemed to regard his approaching fate with composure. He is even reported to have declared that had a pardon been offered him he would have refused it; but, if the story is true, it is more likely that the firm conviction that a pardon would not be granted had as much to do with the remark as any sentiment of resignation. It was simply a case of bowing before the inevitable. And so far as the outward affairs of religion were concerned the condemned man was very attentive, though it could not be said that he looked forward to eternity with hope, or, if he did, he kept his feelings very much to himself. A large section of the people, always inclined for dogmatic discussion on religious matters, found full scope for their critical powers in the consideration of Burke’s spiritual state. The rank and unbending Calvinists argued that a new spiritual birth was, under the circumstances, if possible—and on that point they were doubtful—not at all probable; while the Armenians, with a wider theology, thought in the words of the Paraphrase:—
“As long as life its term extends,Hope’s blest dominion never ends;For while the lamp holds on to burn,The greatest sinner may return.”
Theologians, however, could discuss as much as they liked, but it was never certain whether Burke’s spiritual state was such as to give reason for hope.
The execution, it has already been seen, was fixed to take place on Wednesday, the 28th January, 1829, and to this event the people had looked forward with a ghastly satisfaction.Indeed, so high did public feeling run that the authorities deemed it prudent to remove Burke from Calton Hill Jail to the lock-up in Liberton’s Wynd at four o’clock on the morning of Tuesday, the 27th January, the day before the execution. This was absolutely necessary, as, had the removal taken place at a time when the people were about, or were expecting it, the probability was that, instead of undergoing a judicial execution, Burke would have been torn to pieces by an infuriated mob. The long confinement in prison had not changed his appearance much. He was given a black suit in which to appear on the scaffold, and this afforded him some consolation. Shortly after noon on the same day, preparations were begun at the place of execution in the Lawnmarket. Strong poles were fixed in the street, to support the chain by which the crowd was to be kept back, and on this occasion the space was considerably larger than usual. The work progressed, witnessed by a large crowd, which gradually swelled in size, as the excited people came to see the erection of the structure that was to work legal vengeance on a hated murderer. As the night went on, and the work approached completion, the rain fell heavily, but the crowd, notwithstanding, showed no diminution; and whenever any important part of the erection was finished they raised an approving cheer. About half-past ten o’clock the frame of the gibbet was brought to the spot, and its appearance was the signal for a tremendous shout. It was quickly put in its place, for the men did their work with a grim satisfaction, and when all was completed, the crowd, as a contemporary newspaper put it, “evinced their abhorrence of the monster Burke, and all concerned in the West Port murders, by three tremendous cheers; and these were heard as far away as Princes Street.” This was about two o’clock in the morning, and, wet and dismal though it was, those anxious to see Burke suffer for his crimes were beginning to take up their places. Closes and stairs were quickly packed by intending sight-seers, who preferred to remain outside all morning than run the risk of being disappointed by arriving late. By seven o’clock the vicinity of the scaffold was occupied by one of the densest crowds until that time witnessed on the streets of Edinburgh—from20,000 to 25,000 persons were calculated to be present—many of the best people in the city being among them. Every window giving a view of the place of execution had been bought up some days previous, the price paid varying, according to the excellence of the view, from five to twenty shillings. “The scene at this time,” said the writer already quoted, “was deeply impressive. No person could without emotion survey such a vast assemblage, so closely wedged together, gazing on the fatal apparatus, and waiting in anxious and solemn silence the arrival of the worst of murderers.”
Matters, meanwhile, had been going on quietly inside the prison. Burke had, during the day, been visited by the Rev. Messrs. Reid and Stewart, two priests of the Roman Catholic Church, and the Rev. Messrs. Porteous and Marshall, Protestant ministers, and he received their spiritual consolations calmly, but without much apparent benefit, though he lamented his connection with the murders to which he had confessed. He slept soundly the greater part of that night, and rose about five o’clock on the Wednesday morning. Shortly after wakening he held up his hands, and remarked, with an earnestness that struck his attendants, “Oh, that the hour was come which shall separate me from this world!” This was thoroughly dramatic, but whether it proceeded from a weariness of this life and a hope for a better, can never be known. An incident even more dramatic, but similar in character, occurred shortly afterwards. He had been placed in irons shortly after his condemnation, and he now expressed a desire to be freed from them. The men proceeded to knock them off, and the fetters fell with a “clank” on the floor of the cell. “So may all my earthly chains fall!” exclaimed Burke. These remarks, whatever his spiritual condition, showed that he was a man, however debased by a terrible course of wickedness, of considerable education and natural refinement. About half past six o’clock the two Catholic clergymen who had been so attentive to him arrived at the lock-up, and for half an hour he was closeted with Mr. Reid. Then he entered the keepers room, and sat down for a short time in an arm-chair by the side of the fire, deeply immersed in thought—that his meditations were saddening was apparent bythe heavy sighs that came now and then from his breast. He was at last fairly in the presence of death; but the law was more merciful to him than he had been to his victims—he was given time to prepare for the awful change, but they were hurled in the midst of their sins, drunken and unrepentant, into eternity. Bailies Small and Crichton had meantime entered the jail, and the two priests commenced the last religious exercises. The condemned man joined in the devotions with apparent fervour, and he seemed much affected by the exhortation to “confide in the mercy of God.” After that he retired to an adjoining apartment, but on the way he was met by Williams, the executioner, who accosted him in an unceremonious manner. Burke waved him away, remarking, “I am not just ready for you yet,” but Williams followed him, and set about the work of pinioning. The criminal submitted to the operation without a movement, and simply remarked that his handkerchief was tied behind. When this was done he accepted a glass of wine which was offered him, and on putting it to his lips he looked around, and gave his last toast—“Farewell to all my friends!” For a few minutes he talked with the Protestant ministers, and then the magistrates, dressed in their official robes, re-entered the room, with their rods in their hands. Burke, seeing the end had now come, expressed his gratitude to the magistrates, and especially to Bailie Small, for their kindness to him, and also to the prison and lock-up officials. The solemn procession then formed, and marched out of the jail to the scaffold.
William Hare.(From a Sketch taken in Court)
Burke was supported on either side, as he walked up Liberton’s Wynd towards the Lawnmarket, by the Catholic priests, and he leaned on the arm of Mr. Reid. The two bailies headed the procession, and whenever they made their appearance the enormous crowd sent up one loud and simultaneous shout. The condemned man was affected by this outburst of popular feeling, and, as if afraid the mob might break through the barriers and tear him to pieces, he made haste to ascend the scaffold. His appearance there was the signal for another yell of execration from the multitude. Shouts of “Burke him,” “choke him,” “No mercy, hangie,” came from all sides; but otherwise the crowd showed no signs of interfering. Theywished to see the hangman do his duty properly—if he did so, they had no particular desire to take part in the work. Burke looked round somewhat defiantly, and then quietly kneeled down by the side of one of the priests, and engaged in devotional exercises for a few minutes; after which the Rev. Mr. Marshall offered up a short prayer. This solemn ceremony, however, found small favour with the spectators—they wished to see the culprit, and the kneeling kept him out of their view, so they cried out to the persons on the scaffold, “Stand out of the way,” “Turn him round;” and though the magistrates intimated by signs as well as they could the nature of the ceremony that was going on, the clamour still continued, and there were frequent shouts of “Hare, Hare, bring out Hare! Hang Knox, he’s anoxious morsel!” and others of a similar kind. About ten minutes had now gone, and the crowd was becoming impatient. After he had completed his devotions, Burke lifted the silk handkerchief upon which he had been kneeling, and put it in his pocket. He gave a glance up to the gallows, and then stepped on the drop with a firm step. The executioner proceeded to adjust the rope round his neck, and his confessor said to him, “Now say your creed; and when you come to the words, ‘Lord Jesus Christ,’ give the signal, and die with his blessed name on your lips.” The shouts from the crowd still continued, and the people, out of their better reason by the excitement, cried out, “Burke him; give him no rope;” “Do the same for Hare;” “Weigh them together;” “Wash the blood from the land;” and “You’ll see Daft Jamie in a minute.” Williams then tried to loosen Burke’s neckerchief, but he found some difficulty in doing so, and the condemned man said, “The knot’s behind.” These were the only words Burke uttered on the scaffold. The rope was then adjusted, a white cotton night-cap was put on his head and pulled over his face, and Burke, with an air of firmness, began the recitation of the creed. When he came to the holy name he gave the signal, the bolt was drawn, and the greatest murderer of his time—except, perhaps, his associate Hare—was swinging on the gallows. The multitude set up a fearful yell, and every time the body of the dying man gave a convulsive twitch thecrowd cheered to the echo. An eye witness said—“He struggled a good deal, and put out his legs as if to catch something with his feet; but some of the undertaker’s men, who were beneath the drop, took him by the feet, and sent him spinning round—a motion which was continued until he was drawn up above the level of the scaffold.” It was now fully a quarter past eight o’clock, and Burke had been “separated from this world.” The body was allowed to hang until five minutes to nine o’clock, when the executioner cut it down amid the gloating yells of the people. They made a rush forward to the scaffold as if to lay hold of the corpse of the murderer, but they were kept back by the strong force of policemen who lined the barriers. The assistants at the scaffold, too, seemed to be affected by the general frenzy, and a scramble took place among them for portions of the rope, or shavings from the coffin, or any thing that would serve as a relic of the closing scene of the West Port murders—the great Burke and Hare tragedies. The body was conveyed to the lock-up, and the large crowd dispersed, without a single mishap having occurred, though the people still laboured under intense excitement, which even an accident might divert in a dangerous direction.
Lecture on Burke’s Body—Riot among the Students—Excitement in Edinburgh—The Public Exhibition—Dissection of the Body of the Murderer—Phrenological Developments of Burke and Hare.
Lecture on Burke’s Body—Riot among the Students—Excitement in Edinburgh—The Public Exhibition—Dissection of the Body of the Murderer—Phrenological Developments of Burke and Hare.
It was certainly a strange conclusion to the West Port tragedies that the man who had been so active a participant in them, and who had assisted in supplying so many “subjects” for dissection, should himself, after death—a death also by strangulation—become a “subject” of more thanordinary interest. Not only was that the case, but the public exhibition of the body, while it may be regarded as being in a sense an act of retributive justice, displays a certain amount of barbarity of feeling and sentiment which it is difficult to believe could have existed in this country so short a time ago as fifty years. The rapid advance made by all classes during that period is generally admitted, but it should be borne in mind, in reference to the events now about to be described, that only a few years ago public executions were common, and that the change in the manner caused among certain classes some little irritation. The propriety of having executions in private is now fully and freely acknowledged, but having regard to the comparatively recent change we should not look upon our respected fathers and grandfathers as altogether barbarous.
But passing from the line of thought suggested by the events that followed Burke’s execution, the thread of the narrative may be continued. The body, as already stated, was conveyed from the scaffold to the lock-up, and there it remained until the next morning. It was expected it would be taken to the College during the day, and a large crowd surrounded the building. The motive of the people may have been simple curiosity, but the authorities, being afraid the rougher part of the crowd, if they obtained an opportunity, might seize the body and treat it with scant respect, deemed it proper to delay the removal until such time as it could be done with safety. This was done early on Thursday morning, when the excited populace was asleep. The body was laid out on a table, and several eminent scientists—among them Mr. Liston, Mr. George Combe, Sir William Hamilton, and Mr. Joseph, the sculptor—who took a cast for a bust—examined it before the students began to gather.
Leighton, who seems to have seen the body, says it was “that of a thick-set muscular man, with a bull-neck, great development about the upper parts, with immense thighs and calves, so full as to have the appearance of globular masses. The countenance, as we saw it, was very far from being placid, as commonly represented, if you could not have perceived easily that there remained upon it the bitter expressionof the very scorn with which he had looked upon that world which pushed him out of it, as having in his person defaced the image of his Maker.” He supplements this by a sentence from the notes of another eye-witness:—“He (Burke) was one of the most symmetrical men I ever saw, finely-developed muscles, and finely-formed, of the athlete class.”
Dr. Munro, in the afternoon of the day the body was removed to the College, gave a lecture upon it, and for this purpose the upper part of the head was sawn off, and the brain exposed. The brain was described as being unusually soft, but it was pointed out that a peculiar softness was by no means uncommon in criminals who had suffered the last penalty of the law. While this lecture was going on a large number of students had assembled in the quadrangle of the College, and clamoured for admission. Those who were entitled to be present at the class, opening at one o’clock in the afternoon, were provided with tickets, but owing to the greatness of the crowd it was with the utmost difficulty that these could be made available, even with the assistance of the police. At last all the ticket-holders were admitted, and then the doors were thrown open to as many of the other students as the room would accommodate. Many, however, were left outside. The lecture began at the regular hour, but the nature of the subject caused it to extend over two hours, instead of the usual time. Meanwhile, the crowd in the quadrangle had grown so unruly that a strong body of police had to be called to preserve order. Instead of keeping the youths in awe, this display of force rather exasperated them, and they made several attempts to overpower the constables. In the course of the struggle the glass in the windows of the dissecting room was destroyed. The police had to use their staves, and many of the combatants on both sides were injured, some of them rather seriously. The Lord Provost and Bailie Small, the college bailie, put in an appearance, thinking their presence would have a salutary effect, but they were glad to retire with whole bones under the abuse that was showered upon them. The disturbance continued until four o’clock, when Professor Christison came to the rescue. He intimated that he had arranged for the admission of the young men in bands of fifty at a time, andhad given his own personal guarantee for their good behaviour. This was an appeal to their honour, which is always found to be effectual with a crowd of students, however riotously inclined, and in the present instance the youths cheered the professor lustily. The tumult ceased, and some of the ringleaders, who had been apprehended by the police, were liberated on their parole by the magistrates.
The students were thus pacified, but it was far otherwise with the city mob. There had been a restlessness throughout Edinburgh all day, and it was threatened that unless the public were admitted to view the corpse an attack would be made on the college, and the remains of the murderer taken out and torn to pieces. The manner in which the students had gained their end was quite after the mind of the discontents, and in their case it was, owing to greater numbers, likely to be more quickly successful. The magistrates were in a quandary, but they came to the conclusion that it would be better to have a public view, and in this way endeavour to allay the tumultuous spirit that was abroad. Accordingly, they sent out scouts among the crowds that thronged the streets to intimate their decision, and by this means the people were induced to return home.
Those who witnessed the scene at the College of Edinburgh on Friday, the 30th January, 1829, would never readily forget it. The magistrates and the university authorities had made the most elaborate preparations for exhibiting the body of Burke. It was placed naked on a black marble table in the anatomical theatre, and a through passage was arranged for the accommodation of the visitors. The upper part of the skull, which had been sawn off for the purposes of the lecturer on the preceding day, was replaced, and to the uninitiated it was unlikely that what was apparently a slight scar would be much noticed. “The spectacle,” says Leighton, who saw it, “was sufficiently ghastly to gratify the most epicurean appetite for horrors. There was as yet no sign of corruption, so that the death pallor, as it contrasted with the black marble table, showed strongly to the inquiring and often revolting eye; but the face had become more blue, and the shaved head, with marks of blood not entirely wiped off, rather gave effect to thegrin into which the features had settled at the moment of death. However inviting to lovers of this kind of the picturesque the broad chest that had lain with deadly pressure on so many victims—the large thighs and round calves, indicating so much power—it was the face, embodying a petrified scowl, and the wide-staring eyes, so fixed and spectre-like, to which the attention was chiefly directed.” It was to see this sight that the people crowded the streets of the Old Town of Edinburgh, and made it appear as if the occasion were one of general holiday. The doors of the anatomy theatre were thrown open at ten o’clock in the forenoon, and from that hour until dusk the crowd streamed through the narrow passage in front of the body at the rate, it was calculated, of sixty per minute, so that the total number who viewed it in this way was about twenty-five thousand. The crowd was composed for the most part of men, though some seven or eight women pressed in among the rest, but they were roughly handled by the male spectators, and had their clothing torn. Notwithstanding this extraordinary number there were still many who did not obtain admittance, and in the hope that the exhibition would be continued on the Saturday, many returned to the college next day, but to their great disappointment they were refused admission. This was Burke’s last appearance.
An informant of Leighton gives the following interesting notice of the subsequent treatment of the body of the murderer:—“After this exhibition Burke was cut up and put in pickle for the lecture-table. He was cut up in quarters, or rather portions, and salted, and, with a strange aptness of poetical justice, put into barrels. At that time an early acquaintance and school-fellow was assistant to the professor, and with him I frequently visited the dissecting-room, when calling on him at his apartments in the College. He is now a physician in the Carse of Gowrie. He shewed me Burke’s remains, and gave me the skin of hisneckand of the right arm. These I hadtanned—the neck brown, and the arm white. The white was as pure as white kid, but as thick as white sheepskin; and the brown was like brown tanned sheepskin. It was curious that the mark of the rope remained on the leather after being tanned. Of that neck-leather I had a tobacco-doss made;and on the white leather of the right arm I got Johnston to print the portraits of Burke and his wife, and Hare, which I gave to the noted antiquarian and collector of curiosities, Mr. Fraser, jeweller, and it was in one of his cases for many years, may be still, if he is alive.”
Burke’s body was thus destroyed, but the qualities which were denoted by the developments of his head gave rise to an excited discussion between phrenologists and their opponents. Combe, the apostle of phrenology, and Sir William Hamilton, the metaphysician, with their followers, waged a terrible war of words over the conclusions to be drawn from the measurements of Burke’s head. This is not the place to renew the discussion, but in view of the importance of the question, an estimate of the phrenological development of Burke, published at the time, may be quoted. The account reads thus:—
Phrenological Development of Burke.
Development.
“Amativeness, very large. Philoprogenitiveness, full. Concentrativeness, deficient. Adhesiveness, full. Combativeness, large. Destructiveness, very large. Constructiveness, moderate. Acquisitiveness, large. Secretiveness, large. Self-esteem,rather large. Love of approbation, rather large. Cautiousness, rather large. Benevolence, large. Veneration, large. Hope, small. Ideality, small. Conscientiousness, rather large. Firmness, large. Individuality, upper, moderate. Do., lower, full. Form, full. Size, do. Weight, do. Colour, do. Locality, do. Order, do. Time, deficient. Number, full. Tune, moderate. Language, full. Comparison, full. Causality, rather large. Wit, deficient. Imitation, full.
“The above report, it may be necessary to observe, was taken a few hours after the execution. In consequence of the body having been thrown on its back, the integuments, not only at the back of the head and neck, but at the posterial lateral parts of the head, were at the time extremely congested; for in all cases of death by hanging, the blood remaining uncoagulated, invariably gravitates to those parts which are in the most depending position. Hence, there was a distension in this case over many of the most important organs, which gave, for example,Amativeness, Combativeness, Destructiveness, &c., an appearance of size which never existed during life, and, on the other hand, made many of the moral and intellectual organs seem in contrast relatively less than they would otherwise have appeared. In this state, a cast of the head was taken by Mr. Joseph; but although for phrenological purposes it may do very well, yet no measurement, either from the head itself in that condition, or a cast taken from it, can afford us any fair criterion of the development of the brain itself. We know that this objection applies to the busts of all the murderers which adorn the chief pillars of the phrenological system; and in no case is it more obvious than in the present.
“Our able professor, Dr. Monro, gave a demonstration of the brain to a crowded audience on Thursday morning [the day before the public exhibition of the body]; and we have, from the best authority, been given to understand it presented nothing unusual in its appearance. We have heard it asserted that the lateral lobes were enormously developed, but having made enquiry on this subject, we do not find they were more developed than is usual. As no measurement of the brain itself was taken, all reports on this subject must be unsatisfactory; nor could the evidence of a eye-witness in such a matterprove sufficient to be admitted as proof either in favour of or against phrenology.
“The question which naturally arises is, whether the above developments correspond with the character of Burke? It is not our intention to enter into any controversy on this subject; yet we cannot help remarking, that it may be interpreted, like all developments of a similar kind, either favourably or unfavourably for phrenology, as the ingenuity or prejudices of any individual may influence him. We have the moral organs more developed certainly than they ought to have been; but to this it is replied, that Burke, under the benign influences of these better faculties, lived upwards of thirty years, without committing any of those tremendous atrocities which have so paralyzed the public mind. He is neither so deficient in benevolence nor conscientiousness as he ought to have been, phrenologically speaking, and these organs, which modified and gave respectability to his character for as many as thirty years, all of a sudden cease to exercise any influence, and acquisitiveness and destructiveness, arising like two arch fiends on both sides, leave the state of inactivity in which they had reposed for so long a period, and gain a most unaccountable control over the physical powers under which they had for so many years succumbed. But, is the size of the organ of destructiveness in Burke larger than it is found in the generality of heads?—and are his organs of benevolence and conscientiousness less developed than usual?”
While dealing with this question of phrenology, it will be interesting to give the
Phrenological Development of Hare,
taken the night before his release from prison:—
Development.
The organ of destructiveness is large in Hare, but certainly rather below than above the average size. The organ of acquisitiveness is also large, but its true development cannot be ascertained in consequence of the size of the temporal muscle, under which it lies. Secretiveness is large. Benevolence is well developed, in proportion to the size of the head. Conscientiousness is full. Cautiousness is large. Combativeness is large. Ideality is very large. Causality is large. Wit is full.
Hare’s Position after the Trial—Warrant for his Commitment Withdrawn—Daft Jamie’s Relatives seek to Prosecute—The Case before the Sheriff and the Lords of Justiciary—Burke’s Confessions and the “Courant”—The Lord Advocate’s Reasons for Declining to Proceed against Hare—Pleadings for the Parties.
Hare’s Position after the Trial—Warrant for his Commitment Withdrawn—Daft Jamie’s Relatives seek to Prosecute—The Case before the Sheriff and the Lords of Justiciary—Burke’s Confessions and the “Courant”—The Lord Advocate’s Reasons for Declining to Proceed against Hare—Pleadings for the Parties.
From the conclusion of the trial until some time after the execution of Burke, the position of Hare was one of great danger, notwithstanding the protection which his evidence was supposed to have afforded him. After the conviction of his accomplice he was, it has been seen, recommitted to prison, and for a time it was believed the Lord Advocate was conducting investigations in order to see if he could by any meansproceed against the informer. The press and the public clamoured for the indictment of Hare, for all parties were now convinced that Burke, though undoubtedly guilty of the crime for which he had been condemned, had in many respects been but an instrument in the hands of his wily and more vicious confederate. Some incidents occurred which gave colour to the impression that a criminal indictment would be laid against Hare. On the 1st of January, 1829, theCourantinformed its readers that towards the end of December a girl, who had at one time acted as a servant to Hare, had been apprehended in Glasgow, whither she had fled on being cited as a witness in Burke’s trial, and that her evidence would now probably be used against Hare. This was Elizabeth Main, who is mentioned in one of Burke’s confessions as Elizabeth M‘Guier or Mair.
But in addition to the general public there were two parties who may be said to have had a kind of personal interest in seeing Hare brought to justice. These were Burke and Helen M‘Dougal. The condemned criminal, it was stated by theCourant, made his first confession before the Sheriff, more for the purpose of inculpating Hare, than with any idea of giving a general view of his crimes. So eager was he to see his late colleague suffer the same punishment as himself, that he offered to give information of circumstances connected with the murder of a woman by Hare in the course of the preceding summer. This was the old matter over which the quarrel occurred. M‘Dougal, also, waited on the Sheriff on the 27th and 29th of December for the same purpose. Besides these, if theCourantis to be trusted, other witnesses were precognosced, notably several persons who were known to have been in the habit of frequenting Hare’s house, but as the police officials had become even more circumspect than ever, not a hint as to the drift of their information was allowed to reach the public.
These circumstances show that in addition to considering the legal aspect involved by Hare’s protection as an informer, the Lord Advocate had fully inquired into the possibility of putting him on his trial for a crime to which that protection did not apply. His conclusion was that he could do nothing, and it was definitely ascertained by the 15th of January that thecommitment obtained by the Crown after the trial would be instantly withdrawn. Every precaution had been taken by the public in view of this contingency, and a subscription had been made to enable the relatives of James Wilson (Daft Jamie) to take up the case as private prosecutors.
On the 16th of January, then, a petition was presented to the Sheriff, charging Hare with the murder of “Daft Jamie,” and his lordship granted permission to take precognitions. When Hare was visited by the agent and counsel employed by Mrs. Wilson (the mother of the murdered lad), he refused to answer any questions, and when leaving the room to which he had been taken to be examined, he remarked, with a sardonic laugh, to a person standing near, “They want to hang me, I suppose.” This was not, however, sufficient, and Mr. Duncan M‘Neill, as counsel for Hare, on the 20th of January, presented to the Sheriff a petition for liberation and for the interdict of the precognitions instituted by the private prosecutors. On the following day the counsel for both parties were heard, and the Sheriff pronounced a decision, in which he said:—“In respect that there is no decision, finding that the right of the private party to prosecute is barred by any guarantee, or promise of indemnity given by the public prosecutor, refuses the desire of the petition; but in respect of the novelty of the case, supersedes further proceeding in the precognition before the Sheriff, at the instance of the respondents [the private prosecutors], till Friday next, at seven o’clock, in order that William Hare may have an opportunity of applying to the Court of Justiciary.” There was accordingly presented to the High Court of Justiciary, on behalf of Hare, a bill of advocation, suspension and liberation. This was an exceeding long document, setting forth all the circumstances of the case, in which it was pleaded that the case by Mrs. Wilson against the petitioner—who had given evidence against Burke on the assurance that if he made a full disclosure of all he knew relative to the several murders which formed the subject of inquiry, no criminal proceedings would be instituted against him for any participation or guiltiness appearing against him—was incompetent, irregular, oppressive, and illegal, and that he was entitled to liberation.The review of the court was asked on the Sheriff’s judgment. This petition was presented to the court on the 23rd January, and it was ordered to be served on the agent for the private prosecutors, while the parties to the case were ordained to appear before the court on Monday, 26th January. On this same day, Hare presented another petition to the Sheriff craving to be released from close confinement, and to be allowed to communicate with his counsel and agent. The Sheriff pronounced an interlocutor to that effect.
In accordance with the liberty granted by the Sheriff to the private prosecutors to take a precognition as to the murder of Daft Jamie, a visit was, on the 23rd January, paid to Burke in the condemned cell by the Sheriff-substitute, one of the city magistrates, and Mr. Monro, S.S.C., the agent for Mrs. Wilson and her daughter. The criminal spoke out fully as to the circumstances attending the murder of the unfortunate lad, and thus far satisfactory progress had been made.
But an incident occurred which diverted public attention to a certain extent in a different direction. This was an announcement in theCourantof Monday, 26th January, that in the issue of the following Thursday there would be published a full account of the execution of Burke and of his conduct during his last moments; together with an important document which had been in their possession for some time—a full confession or declaration by Burke, “which declaration was dictated and partly written by him and was afterwards read by him, and corrected by his own hand, and his signature affixed to attest its accuracy.” This announcement raised the hopes of the public to a high pitch, for the information that had reached them before was only to be gained from a trial, the scope of which was confined solely to one event, and from vague rumours and uncertain statements. Now, it was expected, the whole conspiracy would be made patent. But the announcement was somewhat injudicious and premature, as the case against Hare was pending in the High Court of Justiciary, and it was plainly evident that until a decision was pronounced in it, any confession by Burke would have a prejudicial effect upon him. Accordingly, when the High Court that morning had heard the counsel for parties, Mr. Duncan M‘Neill, onbehalf of Hare, called attention to the threatened contempt of Court by theEdinburgh Evening Courant, in promising to publish the confessions of Burke, and he asked that such publication be interdicted, especially in so far as related to the murder of James Wilson. The Lords of Justiciary concurred in the propriety of the application, granted interdict of the publication in theCourantof the document which would likely prejudice Hare, and “recommend all other newspapers to abstain in like manner from so doing.” This was highly disappointing to the public. There was, however, no help for it but to wait, and on the Thursday theCourantwas under the necessity of intimating to its readers:—“We regret to state that owing to an interdict issued on Monday last by the Court of Justiciary, to which we are bound to yield the most respectful obedience, we are prevented for the present from laying before our readers the confessions of Burke. But so soon as it is removed, we shall lay this document before our readers, as formerly promised.”
When the Bill of Advocation came before the High Court of Justiciary on Monday, the 20th January, the counsel for the parties were heard at length, after which an order was made that the bill be intimated to the Lord Advocate to make such answer to it as he should think necessary; and also that the counsel for the parties should lodge informations upon the subject matter of the bill by the following Saturday. The Lord Advocate’s answer was interesting in more ways than one, for in addition to bringing into prominence the question of whether the private prosecutor was superseded by the public prosecutor, he detailed the difficulties by which he had been beset in the preparation of the case against Burke. Having briefly touched on the question as to whether the court had the power to require, in this shape, a disclosure of the grounds on which he, as public prosecutor, had been guided in the exercise of his official discretion, he pointed out that the four persons arrested for the murder of Mrs. Docherty, denied all accession to the crime. The evidence he had been able to gain was, he found, defective, and was not sufficient to ensure a conviction from a Scottish jury, which was uniformly scrupulous in finding a verdict of guilty where a capital punishment was tofollow. The only mode by which the information essentially awanting could be procured was by admitting some of the accused persons as witnesses against the others, and as he had reason to suspect that at least another case of a similar description had occurred, he felt it to be his imperative duty not to rest satisfied until he had probed the matter to the bottom. For the public interest it was necessary to have it ascertained what crimes of this revolting description had really been committed, who were concerned in them, whether all the persons engaged in such transactions had been taken into custody, or if other gangs remained whose practices might continue to endanger human life. A conviction of all the four persons might lead to their punishment, but it could not secure such a disclosure, which was manifestly of more importance. The question then arose as to what one of the four should be selected as a witness. M‘Dougal positively refused to give any information, and as the Lord Advocate deemed Burke to be the principal party, Hare was chosen, and his wife was taken with him, because he could not bear evidence against her. Hare was, in consequence, brought before the Sheriff on the 1st of December for examination, and then, by authority of the Lord Advocate, he was informed by the Procurator-Fiscal that “if he would disclose the facts relative to the case of Docherty, and to such other crimes of a similar nature, committed by Burke, of which he was cognisant, he should not be brought to trial on account of his accession to any of these crimes.” “This assurance,” continued the Lord Advocate in his answer, “had no reference to one case more than another. It was intended for the purpose of receiving the whole information which Hare could give, in order that the respondent might put Burke and all others concerned on trial, for all the charges which might be substantiated. In giving it the respondent acted under the impression, and on the understanding, that when offences are to be brought to light, in the course of a criminal investigation carried on at the public interest, such assurance altogether excluded trial at the instance of any private party. In its nature, this assurance was thus of an unqualified description, and was calculated to lead the party tobelieve that thepossibilityof future trial or punishment was thereby entirely excluded. The assurance was so meant to be understood.” Having briefly alluded to the circumstances attending the trial, when he was prevented from examining Hare and his wife as to each of the three murders set forth on the indictment, his Lordship said it was from the information obtained from Hare, on the assurance of immunity, that he conceived he was enabled to secure a conviction. He proceeded:—“The warrant of imprisonment against Hare and his wife, at the public instance, has since been withdrawn, in consequence of its having turned out, after the most anxious inquiry, that no crime could be brought to light in which Hare had been concerned, excepting those to which the disclosures made by him under the above assurance related.” After he had given the assurance, and obtained the results he had, the Lord Advocate said he would not make any attempt to prosecute Hare, indeed, he “should strongly feel such a proceeding, upon his part, dishonourable in itself, unworthy of his office, and highly injurious to the administration of justice.”
After having given so fully the Lord Advocate’s reasons for declining to proceed against Hare, it will not be necessary to do much more than refer to the information lodged by Hare himself, especially as it goes over to a great extent much the same ground. It was maintained that on account of the promise and compact with the public prosecutor he could not now be tried in order to punishment for the murder of James Wilson; and on the question of his position as between public and private prosecutors, it was stated:—“When an offence is committed, the duty of the public prosecutor is to proceed in the matter with a view to the interests of the community in relation to the wrong done, without regard to the effect his proceedings may have upon the power or right, if such exists, of a private party to come forward and prosecute for punishment. The interest of the community, in the matter of punishment, is the paramount interest, and the only ultimate interest which the law can regard; although different persons may, under certain circumstances, be permitted by the law to vindicate that interest. The public prosecutor, as being the person entrusted with the interest ofthe community, and as representing the community, has the primary right to take up the matter; and, having commenced proceedings for behoof of the community, he cannot be stayed or hindered, or impeded in his prosecution for punishment, by any right or any interest which any private party can claim; and he may do, and daily does, many things which exclude the private party from demanding punishment.... On the other hand, none of these proceedings on the part of the public prosecutor, acting for behoof of the community, can exclude or infringe upon the inherent personal right and interest of the private party to prosecute forassythmentorsatisfaction. That right belongs to him as an individual, not as a member of the community at large. He claimsthat, not to deter others from committing the like crimes, but to solacehis ownwrongs. That is not a matter ofpunishment, but ofsatisfaction.”
Some more attention must, however, be paid to the “Information for Janet Wilson, Senior, and Janet Wilson, Junior, Mother and Sister of the late James Wilson, generally known by the name of Daft Jamie,” the private prosecutors, prepared by Mr. E. Douglas Sandford, under the direction of Mr. Francis (afterwards Lord) Jeffrey. After the usual review of the proceedings up to that time, the private prosecutors set forth their intention thus:—“The prosecutors are, in thefirstplace, obliged to support their title in the present prosecution, and to show the constitutional right which, according to the law of Scotland, they possess, of bringing the individual to justice, whom they conceive guilty of the atrocious crime by which they have been injured. But,2ndly, the prosecutors are anxious to contest the doctrine of indemnity upon which the prisoner has founded, and to show that he is stretching, far beyond its legal limits, the indulgence granted by the Court of Justiciary to those who are examined before it associi criminis.” As to the right of the private party to prosecute, this, it was contended, was a fundamental and constitutional principle in the criminal jurisprudence of Scotland—not an antiquated right, but one that was recognised by the latest authorities. Having quoted Burnet and Hume, the private prosecutors went on to say, that, legally speaking, therewere only two situations in which a prisoner could plead indemnity in bar of trial—previous acquital, by a jury, of the crime of which he was charged, or remission by the Crown. But the point which the prosecutors were anxious to establish was “that whatever may be the nature of the private arrangement between the public prosecutor and the criminal, and whatever may have been his inducement to give up the right of calling upon the criminal to answer at the bar of justice, for the crime of which he is guilty, that arrangement cannot deprive the private party of his right to insist for the full pains of the law. If the law contemplated the power of the public prosecutor to deprive the private party of his right to prosecute by arrangements to which the latter is no party, it had better declare at once that the private instance shall be at an end, because it virtually would be so. In every case where the public prosecutor wished to protect a criminal, and shield him from the effects of crime, an arrangement, under the pretence of a precognition and searching for evidence against a third party, might at once be made; and if the doctrine maintained on the part of the prisoner be correct, that would prevent all prosecution at the instance of the individual injured.” The assertion of the prosecutors was that their legal right to investigate the circumstances attending the death of their near relation, and to indict the accused party if they should find sufficient ground to do so, could not be interfered with by the proceedings of the public prosecutor, in circumstances over which they had no control. In point of form, it was required by the law that the Lord Advocate should grant his concourse to a prosecution before the High Court of Justiciary, and he had no right to refuse this concourse, but if he should so refuse it he could be compelled to grant it, for the reason that it was notin arbitrioof him to deprive a party of his right. In support of the contention for the private prosecutors various cases were cited, particular stress was laid upon the warnings addressed by the Lord Justice-Clerk and the counsel for Burke and M‘Dougal to Hare when he was in the witness box, that the protection of the Court only extended to the case under trial, and not to the other two charges in the indictment, which had been desertedpro loco et tempore.
Such, in brief, were the pleadings for the parties, and the decision of the Court was awaited by all with great interest—by the lawyers because it would establish an important legal precedent, and by the public because they hoped, through it, to see Hare put on his trial and convicted of the murder of Daft Jamie.