you can, from the testimony of the witnesses you have heard examined,
trace the poor creature who was murdered, from Mrs. Stewart’s house, in
the Pleasance, to Burke’s house, where she was bereaved of life, and
whence her body was afterwards carried, by the direction of Burke, to
Dr. Knox’s dissecting-room, in Surgeons’ Square, where Burke sold it to
the Doctor, and delivered it to his assistant. This is the essence of
the crime charged, and it is clearly established in evidence. You have
heard the evidence of Mrs. Stewart, that in the forenoon of Friday,
the 31st October last, the deceased left Mrs. Stewart’s house to go
in quest of her son. In this case there is no doubt as to the time,
for it was in the Sacrament week, and on Hallowe’en--two circumstances
which enable all the witnesses to speak positively on that point. You
have next the testimony of Charles M‘Lachlan, who lodged with Mrs.
Stewart, and who accompanied the deceased as far as his own shop in St.
Mary’s Wynd, where he parted with her, betwixt nine and ten o’clock
on the forenoon of that day. You have then the testimony of William
Noble, Mr. Rymer’s shop-boy, that she met with Burke in his master’s
shop, at an early hour in the forenoon of the same day, when he asked
her name, and struck up an acquaintance with her on hearing it, upon
a pretence that it was likely she was a kinswoman; and as she was
destitute, and seeking charity, he beguiled her to his house in the
West Port, by pretending kindness, offering her breakfast, &c. Mrs.
Connaway, who lived in the same house with Burke, saw him pass into
his apartment with the deceased in his company, about the middle of
the same day--saw her again in the evening in Burke’s company, when
jollity prevailed--dancing, and singing, and drinking; in all of which
hospitalities the deceased joined, and was in perfect health and good
spirits; and, finally, saw her go from her (Connaway’s) house into
Burke’s, about eleven o’clock the same night, in company with the
pannels and Hare and his wife. Mrs. Law corroborates a great deal of
this, and the deceased is identified by all these witnesses, so as
to leave that matter quite clear. Then, the disturbance in Burke’s
house, after the pannels, and Hares, and the deceased went into it,
is instructed by all the neighbours; and the testimony of Alston is
most important; for, in addition to the other circumstances previously
established, he proves that, betwixt eleven and twelve o’clock the
same night, he heard a riot in Burke’s house, and cries of murder and
distress, which induced him to go in search of the Police; but not
finding an officer, and the cries having ceased, he concluded the
riot to be over, and the mischief which he apprehended, to be at an
end. It is also proved, by Connaway and others, that Burke went out
in the evening, and was absent about ten o’clock, at which hour, it
is proved by Elizabeth Paterson, that Burke called, inquiring for
her brother, an assistant to Dr. Knox, Lecturer on Anatomy; and he
being from home, that Burke proceeded with the deceased, and the other
persons referred to, including the defunct, into his own apartment, at
eleven o’clock that night. There is the testimony of Gray and his wife,
that they, being temporary lodgers in Burke’s house, were requested
to go elsewhere _for that night_, and that their lodgings for
that night were provided and paid for by Burke; and they confirm many
particulars stated by the other witnesses. Then there is the testimony
of Paterson, Dr. Knox’s assistant, that Burke came to him at twelve
o’clock the same night--took him to his house, and told him he had
got a subject for the Doctor. You have the evidence of Gray and his
wife, that on Saturday the 1st November, they found lying under the
bed, the dead body of the deceased, whom they had seen the previous
night in Burke’s room, alive and in good health. There is no evidence
that she was drunk. You have the evidence of the porter who packed and
carried the dead body to Surgeons’ Square--of Paterson who received it
in a box, and paid £5 of the price to Burke and Hare--of the shop-boy
who sold the box to Burke; and thus proof of every circumstance,
except the actual fact of murdering the woman by the pannels; and then
that is supplied by the testimony of the Hares, who, no doubt, were
_socii criminis_, and who explain all the horrible details of the
perpetration of this deliberate and midnight murder. That they are
liable to suspicions as _socii criminis_, I admit; but they only
corroborate evidence which, in all its parts, would alone be sufficient
to bring home the crime to the pannels: and, however worthless these
persons may be, it is with you, gentlemen of the jury, to decide to
what measure of credibility they are entitled, when they, in this and
other particulars, give an explanation of what could only be seen by
them at the time--being an occult crime, committed in the dead of
night. When it is proved by other unexceptionable evidence that Burke
seduced this poor destitute woman into his house, on a pretext of
hospitality, she being at that time in perfect health, that he went
to a person with whom he was in the habit of dealing in dead bodies,
as anatomical subjects, at ten o’clock--went again to him at twelve
the same night, and offered him a subject--and next day carried it,
and sold for money the body of the deceased, which has been fully and
satisfactorily identified,--what conclusion can be drawn from all this
good evidence, corroborated by that of the _socii_, but that these
pannels had perpetrated the foul murder libelled, with the intent and
purpose of selling the body to be dissected, for a paltry sum of money?
I will not waste your time by going into every minute circumstance in
the proof; but it is all consistent,--reconcilable, except in the most
trivial and unimportant points, and perfectly conclusive against the
prisoner Burke. The credibility of the _socii_ will be strongly
questioned, I have no doubt, by the counsel for the defence; but giving
all proper weight to the ordinary objections in such cases, I submit
to you that the main points of the case are borne out by all the other
circumstances that are well established. In particular, I most call
your attention to the testimony of Hare, that Campbell went out into
the passage and called “Police and murder” during the scuffle betwixt
him and Burke; and that when Burke began his work of death she gave “a
screech.” This is confirmed by Mr. Alston, who providentially arrived
in the immediate vicinity at that critical time; and he depones, that
when he heard in Burke’s house the sound of a scuffle and fighting, he
also heard, first, a female voice calling “Murder” and “Police,” “For
God’s sake go for the police, for there is murder here;” and in a few
minutes he heard some person or animal give fainter cries, as if it
were choking.
This witness is above all suspicion, and corroborates Hare’s edition
of the transaction in these most material particulars; and then Burke
admits in his declaration many of the facts sworn to by the several
witnesses. He admits that he picked the deceased up in Rymer’s
shop--that she was in his apartment during the 31st October, and at
a late hour that night. He acknowledges that he administered liquor
to her, that she lost her life that night in his house, and that next
day he had her body packed up in a box and carried to Dr. Knox’s
dissecting room, after which he got money from Paterson for it. In
these circumstances, is it possible to doubt that he murdered her for
the purpose of selling her body? And even from the facts admitted by
himself, independently of all other proof, I feel myself warranted to
call on you for a verdict of guilty.--That the woman M‘Dougal, who
was not bound to him by any legal tie, was guilty art and part, and
witnessed and sanctioned the whole proceedings, is equally clear. I,
therefore, submit to you, Gentlemen of the Jury, that you ought to
give a verdict of guilty against the pannels. And if you do not give
a verdict against them, I do not think it possible that in any case I
shall ever obtain a verdict against the greatest criminals. The crime
now charged is one of unexampled atrocity--unexampled in the history
of civilized countries--and the occurrence of which, in this country,
in my time, is a circumstance which I deeply deplore.
The DEAN of FACULTY began his address to the jury at three o’clock on
Thursday morning, and at first spoke in a low tone of voice, indicating
exhaustion. He addressed the jury nearly as follows, and soon began to
speak with his wonted energy:--
Gentlemen,--It is some relief to my mind at this moment, that I shall
not have occasion to go over all the mass of evidence which has been
laid before you in support of the charge against the prisoners. We
have now been seventeen hours engaged in this trial, and, with the
exception of a short space consumed in the discussion of the point
of form, the whole of that time has been devoted to the hearing of
evidence in support of the prosecution. Such a mass of testimony must
of itself distract and press heavily upon your minds; but it shall be
my endeavour to show you, that, extensive and varied as it is, it does
not amount to that legal proof which you require, as a jury, to find a
verdict against my client; and that it is wholly destitute of force, on
the main, and indeed, the sole fact in the case--that the pannel Burke
did commit the crime of murder charged against him in this indictment.
Gentlemen, I do not stand here as the advocate of William Burke’s
character. To do so would be to insult you, and to degrade my own
profession. But I appear before you as an advocate for the great
principle of our law, under which you and I, and all of us, live and
repose in safety--the broad and general principle, that no man is to
be held guilty of any crime unless his guilt be proved by good and
unexceptionable legal evidence,--and to the benefit of this sacred
principle my client, however odious, or however abandoned he may be in
any other respect, is fully entitled in judging of the case now before
you.
The pannel, Burke, labours under great disadvantages--He is avowedly a
person who has been engaged in the loathsome and detested occupation
of procuring dead bodies for dissection; and this circumstance is
calculated to excite prejudice, and ought to guard your minds strongly
against being influenced by any feelings, except the convictions of
your understandings, and the dictates of your consciences, on a strict
and rigorous examination of the evidence which has been laid before
you. And I must warn you also against any prepossessions created by
what has appeared in newspapers, or otherwise, out of doors. Gentlemen,
laying all prejudices and extrajudicial statements aside, and guarded
only by the lights of law and of justice, you must look steadily at
your duty as jurymen--not to the many irrelevant circumstances which
have been this day sworn to, but to the evidence which has been laid
before you of a murder having, as is alleged, been committed on the
body of Campbell, and committed by my client Burke. Now, I maintain,
that of these averments there is no proof at all--for none of the
witnesses, except Hare and his wife, swear to that point--and they are
so utterly contaminated--and have such strong and obvious motives to
criminate my clients in order to screen themselves, that their evidence
is of no value whatever. They are incredible as witnesses--and they
are in this case the only witnesses. It has been said they corroborate
the other witnesses; but this cannot be the case, for there is nothing
to corroborate. There is no other evidence of the fact of the murder
charged in the indictment but their testimony; and that testimony
cannot be believed.
Gentlemen, it is the great and governing principle of our law, that
in all cases of alleged murder, the fact of murder must be proved.
In the highest species of murder, that of high treason,--that of
compassing the death of the King--the overt act must be established by
unexceptionable evidence. Constructive treason is not now recognized
in our law. In such cases the accused is covered all over with the
armour of the law; and to every other case of alleged murder the same
principle extends its protecting power. The fact of murder must here be
proved; the fact of murder by the hand of Burke--for without that fact
being established by good, credible, and unpolluted witnesses, there is
here no case, and no evidence whatever, in support of the indictment.
There are many flaws and inconsistencies in the whole of the evidence;
and Hare and his wife not only contradict each other in several
instances, but the statements of both are contradicted by other
witnesses who also contradict one another. Thus Mary Stewart swears
that Campbell left her house in the Pleasance, betwixt 7 and 8 o’clock
on the morning of Friday, 31st October, while M‘Lachlan swears that
it was between nine and ten. William Noble says it was on that Friday
morning about breakfast-time that Burke and the woman Campbell met in
his master’s shop; but Mrs. Connaway says it was mid-day when they
entered Burke’s house to breakfast, and Mrs. Law makes it two in the
afternoon. But this is nothing to the contradictory testimonies of
Hare and his wife themselves, as to the scenes in Burke’s house. Hare
swears that at the time of the scuffle the old woman went out into the
passage and cried “police,” and “murder;” but his wife swears that she
never went out of the inside door, nor cried out at all. And the wife
even contradicts herself; for at another part of the evidence she says
that Campbell did call out “murder.” Again, Hare says that when Burke
was above Campbell on the floor, and when his wife and M‘Dougal heard
the first screech, they leaped out of bed and ran into the passage; but
the wife says that she was not in the bed when Burke was lying on the
old woman, but standing between the door and the bed. And after all the
scenes which they pretend to describe with such accuracy and truth,
Hare says that he did not go to bed, but slept on a chair with his head
on the bed, the two women and Broggan being in the bed, and Broggan
being next to his aunt M‘Dougal; while the wife swears that she,
Broggan, and M‘Dougal, lay down upon the floor, and the men, Burke and
Hare, slept in the bed, the dead body being underneath it; and Broggan
gives an account of the matter differing entirely from both, for he
says that he and the men lay on the floor at the fireside, while the
two women were in bed. Then as to the proceedings of Saturday, we have
a similar tissue of contradictions. Hare swears that Burke took the
body from under the bed, and the porter helped him to put it into the
box. But M‘Culloch swears that he did not assist in putting the body
into the box--that he did not see a body at all, but _something_ in a
sheet, and that he only thought it was a body, because he saw some hair
sticking out after this something was crammed into the box. Further, as
to the settlement of the price by Paterson, we have more contradiction.
Paterson swore that he had seen both Hare and Burke dealing with Dr.
Knox about dead bodies: that he had been directed by the doctor to
divide the L.5 betwixt them to prevent them from quarreling, as they
had done formerly: that he took them to a public-house and got change,
and gave each L.2, 10s., that they left something for the porter, and
that the whole price of the body was L.8. Now Hare swears that Paterson
gave the porter 5s., and each of the others L.2, 7s. 6d., and that the
price of the subject was L.10. But Hare, on cross-examination, said it
was from Burke, not Paterson, that he got the L.2, 7s. 6d. Paterson
says that he gave each of Burke and Hare L.2, 10s. and that they
paid the porter; but the porter himself swears that it was Paterson
who paid him, so that all these witnesses, Paterson, M‘Culloch, and
Hare, prevaricate and contradict each other in the clearest and most
unequivocal manner.
Paterson, who was questioned as a person having medical and anatomical
knowledge, as to the appearance of the body, deponed, that the eyes
did not project when the subject was taken from the box, and Dr. Black
swore that the eyes were nearly started from the sockets, and he
further said that Docherty’s appearance was very much the same with
that of persons brought to the police office who had been suffocated
with drink; and he declared he was afraid to hazard an opinion whether
her death had been occasioned by violence. Dr. Christison merely stated
his opinion that it was probable she had suffered a violent death;
but there never were medical opinions on the whole so various and
inconclusive in support of a libel for murder.
These particulars in the evidence may appear trivial; but in a case of
circumstantial evidence, the most trivial circumstance is often of the
greatest importance in judging of a witness’s credibility; and when
you find among so many of the witnesses in this case such a cluster
of inconsistencies and contradictions;--when you remember the nature
of the occupations in which these witnesses are avowedly engaged, and
consider the motives by which they must be actuated, to whitewash
themselves as far as possible by inculpating the pannels, it is utterly
impossible you can give credence to their testimonies, or listen to it
for one moment as the evidence of witnesses upon which you can with a
safe conscience give a verdict against the pannels. The Dean concluded
by urging the jury to keep in mind the general principle on which the
safety of every man in society rested, and the necessity of the murder
being proved upon better evidence than that of such nefarious witnesses.
Mr. COCKBURN, for the pannel M‘Dougal, said, that in pleading her
defence, it was only necessary for him to assume what was contrary to
the fact, that the Public Prosecutor had succeeded in establishing
the guilt of the other pannel Burke; a proposition which no one would
maintain after listening to the powerful argument of his friend the
Dean of Faculty. But he would assume that the guilt of Burke was
established, and what followed? Not that the other pannel M‘Dougal had
aided and assisted in that murder, but that she fled from the scene
described by Hare, and did not even witness the atrocities of which
that monster held himself out as a willing and passive spectator.
Although it were correct and credible, it proves nothing against
M‘Dougal. But to talk of their credibility was a sporting with men’s
lives and a mockery of justice. The evidence of these miscreants could
not be received in the same manner as the evidence of an honest person.
Their character was written in characters of blood, that never could
be effaced from the recollection of those who heard their horrid
narrative. Could they conceive that an accessory to murder was worthy
of credit?--and yet the law made him an admissible witness. The man who
was the chief evidence in a trial for the crime of murder,--who had
told that he sat on a chair within a yard of the murdered and murderer,
and raised not an arm, nor uttered a cry to save the unhappy victim
calling for help and struggling with the assassin in the last agonies
of life;--which was the most guilty,--the cool, cold-blooded spectator
of the foul murder--or the actor, whose physical exertions would, in
such an awful moment, impart phrenzy to his mind? There were certain
questions which he had felt it his duty to put to Hare; but which he
warned him he need not answer unless he chose. “I asked him,” said Mr.
Cockburn, “if he had been concerned in other murders; but he declined
to answer. I asked him whether a murder was committed in his own house
in October last; and again that monster took shelter in his privilege.
In what situation was that man placed when he gave his evidence? There
were other murders hanging over his head, upon which he might be
libelled; he came from the jail and would be returned to it,--knowing
full well, that, if the case failed, he might be called upon to descend
from the witness-box, to take, along with his wife, his place at the
bar--in short, to exchange places with the pannels. And if they were
the pannels, and Burke and M‘Dougal the witnesses, then would the true
state of the case appear and the present witnesses would be proved the
guilty perpetrators. The monster had come that very day out of jail, to
which he would be again consigned if he failed to make them (the Jury)
believe his story.” He (Mr. C.) had often heard of King’s evidences, or
approvers, in crimes to which they had been accessories; but of persons
coming to give evidence with other crimes of a similar nature hanging
over their heads, the very idea was horrible. If Hare and his wife
had stood at the bar, and made a judicial confession of participation
in the crimes which they had stated from the witness-box, sentence of
conviction, legally disqualifying them, would have been recorded; but
being allowed to make their confession from the box, they were not only
freed from the crime, but cleared to the effect of being converted
into good and credible witnesses. But what could a jury think of the
evidence of the man who came forward and said, “I have been guilty of
one murder, but want to free myself from blame by impeaching another
who was not probably so guilty?” They had seen the squalid wretch--the
very picture of his revolting traffic--a visible spectacle of penury
and profligacy.
And then, as to Hare’s wife; Mr. Cockburn said he did not know whether
or not the Lord Advocate had any skill in physiognomy. Perhaps the
Lord Advocate liked her face--a good one for a King’s evidence;--but
as his Lordship’s back was towards the witness, he did not perhaps
see that woman’s face so well as he (Mr. C.) did. To him it appeared,
that on that countenance every evil passion was imprinted. She stood
in that box, with a miserable child in her arms, the blighted creature
of vice and misery; and, instead of casting upon it a look of maternal
tenderness in its distress, she evinced a harshness and brutality, and
seemed to eye it in such a manner as added to her malign aspect. He
would say, without fear of contradiction, that he never had, in the
course of his practice, seen such wretches placed in the witness box.
The learned gentleman alluded to the declarations, and said, if the
jury allowed their minds to be influenced by the statements of those
documents, the pannels would be legally murdered.
And in the conclusion of his speech, Mr. Cockburn addressed the jury
in a tone of peculiar eloquence and impressiveness: “If, Gentlemen,
(said he,) you have any doubts--you must give the pannels the benefit
of those doubts;--and after seeing the exhibition, and hearing the
testimonies of Hare and his wife this day as witnesses--good God! can
you say there are no doubts? It is the duty of the Public Prosecutor
to prove his case by good evidence. He has produced a horde of
wretches who are a pollution to any evidence. The Hares, the Grays,
the Connoways, M‘Cullochs, and Brogans, the whole host of witnesses
to every material circumstance in the proof are polluted. Talk not
of suspicions of dangers to the public--for in my mind no greater
danger can be imagined than that of a criminal verdict on doubtful and
polluted evidence. Though the town should ring with clamours and the
country resound with them, you are only called on the more strongly to
discharge your duty manfully, by the exercise of your own judgment,
and the dictates of your consciences--banishing from your minds every
prejudice, and looking well to the nature of the evidence on which
you are called to condemn a fellow-creature to death--recollecting
too, that when the public mind is agitated and disturbed, it is the
Courts of Law, and the Juries of our country, who hold in their hands
the balance of justice--and that when the storm is up, and popular
prejudice and passion rage around, the louder is the call for an
enlightened and intrepid discharge of your duty.” He concluded by
craving an acquittal of M‘Dougal from the charge made against her.
The LORD JUSTICE CLERK began his charge to the Jury at six o’clock on
Thursday morning, and finished about half-past eight. His Lordship
expressed great satisfaction at the defence having been committed to
such eminent counsel; for he could assure them (the jury) he never
had heard the defence of any individuals conducted with more zeal
and consummate ability than that of the prisoners. There was another
consideration which he was called upon to bring under their notice;
namely, to express his thorough confidence that they would divest
their minds of every impression or prejudice which might have been
raised from what they had read or heard out of doors. It would be a
matter of infinite regret, if writings or publications, or any sort
of public feeling, should for one instant affect their minds; but he
was sure they knew their duty too well, to be influenced by prejudice;
they would be guided by nothing but the facts as disclosed during the
investigation.
The evidence was partly circumstantial, and partly direct. The first
was composed of a number of minute facts and circumstances; and the
latter of the testimony of _socii_. It would be their duty,--First,
to consider the general evidence; Secondly, that of the _socii_;
and, Thirdly, the combined effect of both conjoined. From these, the
verdict, upon a fair inference drawn from a consideration of the whole,
would be made up. His Lordship then directed the attention of the Jury
to the way and manner the old woman, Campbell, had been bereaved of
life, informing them, that if they were satisfied she had not died in
consequence of violence, there would be an end of the inquiry. If they
held the contrary opinion, they would proceed to consider, whether she
had lost her life by the hands of the prisoners, or one or other of
them.
The evidence of the identity of her person was the first branch of
the investigation. His Lordship then went over the whole evidence
with great minuteness, commenting upon those parts where there were
seeming contradictions, or which had been specially alluded to by the
Public Prosecutor, or the counsel for the pannels, in the course of the
defence, but it is unnecessary to recapitulate his Lordship’s detail,
as the reader has the whole evidence itself before him.