serious which the playwright, following nature, resorts to for deepening
his shadows. The face of Hare, as he stood in the witness-box, seemed
incapable of the expression of either seriousness or fear. The leer was
irrepressive, even had there been a wish within to repress it--and there
was none; and as for any effect from without, that seemed equally unfelt
by him, if the gloom and awe which pervaded the court did not rather
increase an inborn propensity to be humorous. He could not say seriously
that the woman was dead, only that she was "dead a wee,"--nor that he was
drunk, only "drunkish-ways;" and when asked if the word "shot" implied
murder amongst the crew, he answered, as impeaching Burke, "amongst him;"
so that if you took his looks and words together, you could not, if you
had read the accounts of the classic satyrs, avoid the impression that,
like these creations of the poets, he was condemned to an eternal grin of
self-satisfied sarcasm against the whole human race. Nor, strange as it
may seem, did he appear to consider this as incompatible with a wish to
produce the impression that while he could mix in and receive the price of
murders, he was only (as we have already said) an indolent and easy
spectator--a kind of lover of the play, but not an actor. It appeared,
indeed, evident that it required only an indication on the face of his
questioner to prompt him to laugh, and this was probably all that was
wanting to complete an exhibition which no one could ever forget.
The appearance of his wife, who had a child in her arms, was scarcely less
impressive, but not from any characteristic indicating the successful
cunning displayed by the husband. She could scarcely contain herself. You
saw the bloated virago always appearing from under a bunchy and soft mass,
with small fiery eyes that peered about in every direction, as if she felt
she had come there to favour the judges, who were bound accordingly to
admire her. Like most of the famous examples of her sex renowned for
cruelty, it was clear she could be as mild as gentleness itself; and it
was only when she came to the great scene when she saw Burke lying on the
body of his victim, and "flew out of the house" because of her delicacy,
and stood in the passage "quite powerless," unable to "cry out," that you
could come to form a true estimate of that combination of the devilish and
the soft, which so much distinguishes the wicked of the one sex from those
of the other. She admitted that she knew very well that Burke was
murdering the woman, because she had seen "such tricks before;" yet she
had "no power to remove herself from the passage;" and whenever the
counsel or judge wished to know whether the victim screamed or shewed any
indication of violent suffering, her mouth would give out nothing but soft
words, so afraid was she to see anything "come upon the woman," all the
while that the fiery scintillations escaped from these small eyes. To the
next question, she admitted that she went for the tea-chest, trying to
save herself by the qualification that Burke said it was to hold old
shoes; and then, in a few minutes after, "she knew that the body was put
into that box." Nor was the audience less struck with the manner in which
she used the infant as an instrument to produce pity, and a mean of fence
against searching questions. The poor creature was under the influence of
hooping-cough, and as the long choking inspirations came every now and
then ringing through the court, they reminded the audience of the
strangling of the victims, and seemed to be intended by God as a
mysterious kind of sign. She was not only a woman but a mother; and should
not this produce sympathy even to one who had fought the fight of the
drunken virago in the street of Portsburgh, been art-and-part in a dozen
of murders, who had led the kind-hearted simpleton as a dumb lamb to the
slaughter, and had so often watched under the hush of breathless
expectation for the sign when the work was done, and then hung, like one
of those fabled creatures called "Furies," round the slayers and the
slain, to get her part of the prey?
When the witnesses were all examined, there ran through the court a
whisper, "Where are the doctors?" and well there might, for in all that
crowd you could not have got half-a-dozen who did not think these men
nearly as culpable as the principal actors. It was known that their names
had been placed on the back of the indictment as witnesses, but a very
small amount of consideration might have satisfied any one that, whether
appearing for the prosecution or the defence, they would be exposed to the
danger either of self-crimination or falsehood. They could not have
appeared with any effect on the one side without swearing to marks of
violence, which would have proved their condemnation; nor on the other
without witnessing to the total absence of those signs, which would have
convicted them of premeditated lying. The indomitable leader had long
before settled the question of their appearance, by ruling them, as he
attempted to do the straightforward curator--the only person connected
with the Square who came forward--to the determination of being the mutes
of the tragedy; and there can be no doubt that his policy was the right
one, when it was found that they not only kept themselves scathless from
all but the Argive calumny, which, in their case, died away, but
afterwards rose to wealth and estimation. If they were ardent students of
the science of anatomy, it did not follow that they should also be ardent
students of that of justice; and then self-preservation is the first duty
of Nature--a keen-eyed deity, who is somewhat before her who is blind. But
all these things were not weighed and computed by the dissatisfied people
who were in the court that day, and they still looked for the doctors even
after the Lord Advocate had begun his speech to the judges and the jury.
That speech was perhaps the best Sir William Rae had ever spoken; and it
was not without its delicacies and difficulties. He knew that if the
evidence of the Hares, which was, even on the face of it, a tissue of
lies, were disbelieved by the jury, he had no case; and he trembled under
the responsibility of satisfying an infuriated people, who, surrounding
the court-house with ominous faces, made themselves heard by shouts even
within the walls of the court. "I do not," he said, "present those
persons, Hare and his wife, to you as unexceptionable witnesses. Assuredly
they are great criminals; but the law has said that their testimony is
admissible, and thus pronounced it is not undeserving of all credit. It
is for you to judge of the degree of credit to which they are entitled.
You saw them examined, and will draw your own conclusions. I may be
prejudiced, but to me it did appear that, while the evidence of the wife
was in many points exceptionable, Hare himself spoke the truth.
Notwithstanding all the ability shewn in the cross-examination, I do not
remember one particular in which he was led to contradict himself, or
state what must be false. Doubtless there exist inconsistencies betwixt
his evidence and that of his wife; but these are not of a nature that
ought to induce you to withhold all credit from their testimony. Your
experience will tell you how difficult it is to find two individuals who,
however disposed to speak the truth, will concur in such particulars in
regard to an interview which occurred at the distance of two months. But
look to the situation in which these persons were placed. Look to the size
of the apartment in which all this occurred. Recollect that all present
were proved to have been nearly intoxicated at the time, and remember that
an act of foul murder was at the time committing. Is it possible that they
should not have been in a state of unusual excitement and alarm at the
time? And is it wonderful that their memories should have served them
differently in regard to such trifling particulars as those to which I
have alluded? If they had been at one in all these points, the only just
inference would have been that the story was entirely made up between
them, and their evidence, in consequence, not entitled to any credit. But
look to the main point of the case--the murder, and the mode in which it
was done. That was a fact sufficient to rivet attention, and render sober
any one, however inebriated. On this material point you find these
witnesses entirely concurring,--both describing the same mode of death,
and both describing a mode which corresponds completely with the
appearance of the body, and which, in the opinion of the medical men,
satisfactorily accounts for the death. That both Burke and Hare were
participant in the foul act, no one can doubt; and I need not state to you
that it matters not which was the principal aggressor in its execution.
They are both art-and-part guilty."
The Dean of Faculty, for Burke, then spoke; and afterwards came Henry
Cockburn, for Helen M'Dougal, with that speech, so renowned among the
displays of forensic eloquence, as almost rivalling that of Jeffrey for
Mrs Smith. His point of attack was--the credibility of Hare and his wife.
"Our learned friend, who prosecutes here, has demonstrated by his conduct,
that he is satisfied you ought not to convict without the evidence of the
associates; and thus we are absolutely driven to consider what credit is
due to those witnesses. If you shall agree with me in thinking that it is
an absolute sporting with men's lives, and converting evidence into a
mockery, to give the slightest faith to anything these persons may say,
then we have the authority of the public accuser himself for holding that
you must acquit. Now, on what does these witnesses' claim to credit rest?
One of them is a professional body-snatcher, the other is his wife; so
that, independently altogether of the present transaction, they come
before you confessedly vitiated by the habits of the most corrupting and
disgusting employment which it is possible to be engaged in, and one of
which the chief corruption arises from its implying that he who practises
it has long been accustomed to set law, feeling, and character at
defiance. Then they both confess their direct accession to this particular
murder--a confession which, if it had been made at the bar, would have for
ever disqualified them from giving evidence in any court of justice; not
having been made at the bar, they are admissible. But, since they have
made the very same confession in the witness-box, their credit is as
completely destroyed in the one case as it would have been in the other.
Hare 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 confessed _by declining to answer_.
"But why does the law admit them? Why, just because after they are
admitted it is the province of you, gentlemen, to determine how far they
are to be believed. You are the absolute monarchs of their credibility.
But in judging of this, do not be misled by what juries are always told of
those who turn king's evidence, that they have no interest now but to
speak the truth. But it is notorious that there is nobody by whom this is
so universally forgotten as by those who make a bargain for saving
themselves by betraying their associates. These persons almost invariably
hurt the interests of their new master by the excess of their zeal in his
service. They exaggerate everything, partly by the desire of vindicating
themselves, and partly to merit the reward for which they have bargained.
And you will observe that, in this case, these persons stand in this
peculiar situation, that, so far as we know, they are still liable to be
tried for similar offences. There are other two murders set forth in this
very indictment, one of them committed in Hare's house, and if we may
judge from what these persons say, they have been engaged in other
transactions of the same kind. They came from the jail to this place
to-day, and they are in jail again. Do you think that it is very
improbable that when coming here they should feel that if this prosecution
failed, public indignation would require another victim, and that nothing
was so likely to stifle further inquiry as the conviction of those
persons?
"The prosecutor 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 form 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 intenser 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."
The Lord Justice-Clerk then charged the jury, going over the evidence, and
at last directing his special attention to the case of M'Dougal:--"It is
not in evidence that she took any part in the actual perpetration of the
crime; but the question remains, and if answered in the affirmative, will
be equally fatal to her as if she had done so, namely, whether she was an
accessory, and, therefore, to be held in law as art-and-part guilty along
with the other prisoner. Accession to a crime may take place before the
fact as well as at the moment the crime is committing. It may likewise be
_inferred_ from the conduct of the party after the fact; and if you are to
believe the evidence which you have heard, I am much afraid there are but
too strong grounds for concluding that the female panel at the bar has
been guilty of accession to the crime under investigation, whether you
consider her conduct before or after the fact, or while it was
perpetrating. It is impossible to conceive for one moment that, under all
the circumstances of the case, the panel M'Dougal could be ignorant of the
purpose for which this wretched woman Docherty was brought to the house.
The state in which Burke and she appear to have lived, their brutal and
dissipated habits, make it impossible to believe that either of them kept
the woman in the house from the humane or charitable motives they
professed to feel, and affected to shew, towards that unfortunate
creature. On one occasion, it would appear, indeed, from the evidence of
Gray's wife, that M'Dougal actually opposed the proposition of the woman
going out of the house. The manner, too, in which she communicated the
fact to Mrs Hare, that they had got a shot in the house, shews distinctly
her complete knowledge of what was in view, and implicates her morally as
well as legally in the guilt that afterwards ensued. Again, as to her
accession during the perpetration of the crime, thus much appears,
according to the evidence of Hare and his wife, that both Mrs M'Dougal and
Mrs Hare were in the room, at least--whether in the bed, as Hare states,
or standing between the bed and the door, as his wife swears, seems
immaterial--when Burke placed himself on the body of the woman; and that
upon her hearing the first screech of the woman they both flew, as Mrs
Hare expresses it, to the passage, where they remained till the door was
opened. By this time the crime had been accomplished, and the body thrown
among the straw."
Before the jury retired, and during the time they were enclosed, Burke
endeavoured to prepare the mind of M'Dougal for her fate, as, from the
address of the Lord Justice-Clerk, he supposed she would be found guilty.
He even gave her directions how to conduct herself, desiring her to look
at and observe him when the sentence was pronounced. The jury retired at
half-past eight in the morning, and after an absence of fifty minutes,
returned the following verdict:--"The jury find the panel William Burke
guilty of the third charge in the indictment; and find the indictment not
proven against the panel Helen M'Dougal." On hearing the words of the
foreman, Burke turned to M'Dougal, and coolly said, "Nelly, you are out of
the scrape."
Thereafter, Lord Meadowbank proposed the sentence, prefacing at
considerable length:--"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."
Then the Lord Justice-Clerk, putting on the black cap, 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 of detaining 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 all 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 that has come across my mind is, whether, to
mark the sense which the Court entertains of your offence, and which the
violated laws of the country entertain respecting it, 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 earth to imploring forgiveness from
Almighty God." The written sentence was in conformity.
Such was the sentence of Burke, sending very appropriately his body where
he had sent so many others. The people were so far pleased that they had
got an instalment;[14] but, in spite of the approbation bestowed on the
jury by Lord Boyle, the finding of "Not proven" against Helen M'Dougal was
looked upon as a mere bilking of justice. No man could have any doubt of
her guilt, as being art and part, and if ever a jury acted in defiance of
their consciences, it was in liberating this woman; nor do we believe that
they did not think the charge proven against her--they were simply
desirous that they should not afford an opportunity for the application of
an old law seldom put into execution. This motive might have been looked
upon as humane in an ordinary case, for assuredly the law of art and part
is apt to take on cruel forms, but to withdraw Helen M'Dougal from its
power was, at the very best, a squeamish and sickly humanity. So, too,
thought the public, and their anger rang through the city, even in the
midst of the satisfaction universally felt at having got, at least, an
instalment of justice. But were the other murderers also to get free?
The Jail.