that the writer, in order to arrive at his conclusion, has confounded
two things perfectly distinct, viz. the legal effect of a verdict of
conviction _before_ sentence, and the legal effect of such conviction
_after_ the Court has been moved to pronounce judgment; and after a
sentence has been passed sinking the _caput_ of the prisoner. It is
quite clear in law, that even a conviction, upon a capital charge,
does not and cannot destroy the _status_ of the prisoner; and for
this reason, that the verdict may be special, or inapplicable, or
it may find something different from the facts charged, or it may
involve a conclusion which is inept in law, so that, upon a motion
in arrest of judgment, no sentence can pass upon it. Instances of
this kind constantly occur; and every one who is acquainted with the
books of criminal law, must be familiar with many of them. It follows,
therefore, that if an objection were proponed upon any of these
grounds, and sustained by the Court, the prisoner would fall to be
dismissed _simpliciter_ from the bar. But until the Court be moved for
judgment, it cannot be known whether such an objection may not lie;
and, consequently, it is manifest that a mere conviction, however valid
it may ultimately be found, does not and cannot affect the _status_ or
destroy the _caput_ of the prisoner, which is the joint result of the
verdict _and_ the sentence. Hence, we contend that the writer before
us labours under a complete mistake in supposing that the decision of
the Court “in restricting the Prosecutor to the proof of _one_ of the
three charges exhibited against Burke _was attended with the necessary
effect of preventing the disclosure of the circumstances connected with
the other two murders_,” and that, “_after Burke had been convicted
under the third charge, it was out of the question to proceed to try
him a second and a third time on the two previous accusations_.” As
matters turned out, it was indeed out of the question to try Burke
a second and a third time for the other two murders. But how was it
out of the question? Solely on account of the error committed by the
Prosecutor himself in moving and obtaining the sentence of the Court on
the verdict of conviction which had been returned by the Jury on the
third charge, namely, the murder of the woman Docherty: For the moment
Burke was condemned to die, his _caput_ was destroyed,--he was dead in
law, and had no longer a _persona standi in judicio_; consequently,
after such conviction and sentence, it was clearly “out of the question
to proceed to try him a second and a third time on the two previous
accusations.” But we have some confidence that no lawyer will maintain
the incompetency of proceeding to try Burke upon these charges, had the
Lord Advocate rested satisfied with the conviction he had obtained,
and delayed moving for sentence. We will not argue a point so clear as
this. It is evident to us that the dilemma in which the Prosecutor has
placed himself is the consequence of his own blunder, and that Burke
might have been tried on twenty separate charges, if the indictment had
contained so many, but for the error committed by his Lordship himself
in moving the Court for judgment, and thus destroying the prisoner’s
civil personality, and, of course, his _persona standi in judicio_.
After stating, what is perfectly true, that “the limited nature of the
disclosure thus produced has naturally led the public, in the present
state of excited feeling, to call for the farther trial and punishment
of this atrocious gang,” the writer then proceeds to say:--See
paragraph on page 142, commencing “We have heard, however,” &c. to end
of the article.
Now, our readers will perceive that this just comes, in substance, to
the fact stated by implication in our Saturday’s publication, that
Hare and his wife were admitted to “peach” upon a promise of impunity
and protection. But were the circumstances such as to warrant the
Public Prosecutor in giving such a promise, or accepting disclosures
from Hare in regard to the murders of Mary Paterson and Daft Jamie,
calculated to embarrass him in dealing with these miscreants, or to
tie up his hands altogether from proceeding against them on account
of these horrid crimes? We maintain there were no such circumstances,
and our reasons for thinking so are already partly before the
public. The defender of the Lord Advocate says, indeed, that “there
were just four persons engaged in these horrid deeds, viz. Hare and
his wife, and Burke and M‘Dougal,” and that if all four had been
indicted, “it is obvious that the evidence against them would have
been merely presumptive, and considering the difficulty experienced
even in convicting Burke, _when two eye-witnesses swore to the way
in which the deed was done_, it is plain that all the four would
have been acquitted.” Now, all this is very loosely and inaccurately
stated;--for, in the first place, the Lord Advocate knows as well as
we do, that instead of _four_, there were at least _seven_ persons
concerned either as principals or accessaries in these murders;
secondly, that independently of the testimony of Hare and his wife,
there was more than “presumptive evidence” inasmuch as he himself
rested the case against Burke on the other evidence adduced, exclusive
of Hare and his wife altogether; thirdly, that the Jury paid no regard
whatever to the testimony of these wretches, yet convicted Burke of the
charge libelled; and, lastly, that no other difficulty was experienced
in obtaining this conviction than arose from the Prosecutor having to
contend with the great talents of the Counsel arrayed for the defence,
or were inseparable from a protracted investigation into a great
body of circumstantial evidence. How, then, can it be maintained,
that if Hare and his wife had been included in the indictment with
Burke and M‘Dougal, the whole four would have been acquitted? It is
said, indeed, that these miscreants, particularly the former, made
such disclosures in relation to the murders of Mary Paterson and Daft
Jamie, as renders it now impossible to bring them to trial for these
assassinations; but even admitting this to the fullest extent, it is
not pretended that they made any disclosures connected with the murder
of Docherty; and as their testimony proved of no avail in facilitating
or insuring a conviction against Burke, the necessary inference is,
that the Prosecutor mismanaged his case in not including them in the
same indictment with their associate and accomplice for that offence at
least. But if people will not seek for evidence they cannot find it.
Why was Falconer not sought out and brought forward? Had the Prosecutor
apprehended this fellow and Paterson, and afterwards admitted them as
king’s evidence, there would have been no want of proof to convict
the whole operative part of the gang, _if not to go even farther than
this_. The teachers of anatomy ought also to have been examined. They
had it in their power to tell much that had come to their knowledge,
and to point out channels by which more might have been discovered.
Information of the most valuable description might have been obtained
from them, had it been required; information, which they were willing
and anxious to give, and which, we rejoice to learn, the Prosecutor is
now taking the proper means to obtain.
In the paragraph above quoted there are some errors in point of fact,
which are the more material and germane to our view of the case,
because the mind of the Public Prosecutor may have been misled by
them, and his course of conduct influenced by the misconceptions under
which he laboured. First of all it is stated that M‘Dougal, “though
not actually married to Burke, had lived with him as his wife, and
had borne his name for ten years, and was thus legally his wife.” In
his “confessions,” Burke states himself to have been living in notour
adultery, which of course could only be the case upon the supposition
that a former wife of his own was alive; which we understand to be the
fact. M‘Dougal’s connection with Burke, therefore, was not of such a
nature as legally to disqualify her for giving evidence against him.
Next, the writer is misinformed when he says that Hare “was not the
leader of the gang.” Further investigation, we are convinced, will
prove the contrary. Hare was engaged in this horrid traffic _before_ he
formed an alliance with Burke; and although the superior appearance,
address, and physical strength of the latter, led him to act as the
decoy, and to take a conspicuous share in the perpetration of the
murders, Hare, we are satisfied, was his master and his tempter, as
he is known to have been his constant associate in all the murders
he committed, except, perhaps, one, which Burke alleges Hare did by
himself when he was in the country. It is really melancholy to “hear,”
therefore, “that no farther trials will take place,” and that, as far
as the Prosecutor is concerned, Hare and his wife are now free from all
challenge.
Happily, however, there is one method by which they may still be
brought to justice. The mother of Daft Jamie is alive; and it is
competent for her to prosecute for the murder of her son, upon
obtaining the concourse of the Public Prosecutor, which his Lordship
cannot withhold. This, we understand, is a settled point, and we
know of a case in which a private party similarly circumstanced came
forward. It was in consequence of several persons being shot, in
Aberdeen, on the late king’s birth day, Captain M‘Donach was that day
the officer on duty, and gave the orders to the military to fire upon
the mob, in consequence of which several persons were killed. Politics
then ran high, and his Majesty’s Advocate refused to bring the Captain
to trial. But a private party came forward; his Lordship was obliged
to grant his concourse; and Captain M‘Donach was put upon his trial.
The Hon. Henry Erskine conducted the case for the prosecution; but in
spite of all his efforts the Jury acquitted the prisoner. We do not
remember how the instance was laid, and we have not time at present
to consult the authorities. We are quite certain, however, as to the
main fact, that the prosecution was brought by a private party, with
concourse of his Majesty’s Advocate, after that Functionary had refused
to prosecute in his own name. Now, the inference we draw from this
is, that the mother of Daft Jamie ought to come forward upon this
occasion; and in order to enable her to do so, a subscription should
be immediately opened for raising the necessary funds to defray the
expense of the trial. Were this done, hundreds, nay thousands would
subscribe to enable her to prosecute; and we are satisfied that the
Lord Advocate would not only not refuse his concourse, but would be
pleased and gratified with a proceeding calculated to relieve him from
the embarrassments with which he is at present surrounded.
_Edinburgh Advertiser._
The Lord Advocate is blamed, not only for not having possessed the gift
of “second-sight,” and discovered sooner that Burke and Hare, and their
two wives, were murderers. He is blamed in the second place, for having
been able to procure the conviction of only one of the gang. Hare and
his wife, it is said, ought not to have been made King’s evidence.
There was enough of evidence, we are told, against their associates
without them; and we are desired, therefore, to adopt the conclusion,
that they were improperly screened from punishment, by being invested
with the character of witnesses. This is really too much. But some
persons, when _disposed_ to find fault, require, in the language of
the proverb, “but a _hair_ to make a tether.” It has proved so, in the
present instance. A better arranged case of proof, circumstantial and
direct, has seldom, perhaps, been laid before a jury, than that which
was submitted to the jury on the trial of Burke and M‘Dougal. A train
of more clearly delivered and unshakenly adhered to testimony, on the
part of the unexceptionable witnesses, has seldom been listened to.
Yet, even when aided by the direct testimony of Hare and his wife, for
whose evidence we are told there was no necessity, a jury, including
individuals of the most respectable character, unanimously found
the charge _not proven_ against _M‘Dougal_, while, at least, two of
them, it is asserted, contended for a similar verdict _even against
Burke_ himself. Had Hare and his wife, therefore, not been witnesses,
there is the best reason for supposing that the conviction of none of
the four would have been obtained. It is surprising that, in such a
state of facts, the Lord Advocate should be accused of having acted
improperly in admitting these miscreants to the privileges of king’s
evidence.
In our last paper we endeavoured to show that his Lordship could not
have acted otherwise than he has done. A contemporary of yesterday has
reviewed the remarks we then made. After affecting to consider them as
coming from a “higher quarter” than ourselves, in order, of course--to
secure the greater attention to his own observations--he still contends
that the Lord Advocate acted improperly in giving immunity to Hare and
his wife, and that if he had not done so, he might have accomplished
the conviction of more of the gang than Burke. On a _prima facie_
consideration of the subject, this must appear very unlikely. His
lordship was, of course, in possession of all the evidence in its
authentic shape, the broken parts of which have been wafted, in an
exaggerated form, to the knowledge of the public. He was, perhaps,
aware too, that the murders had all been so committed as to preclude
the chance of direct evidence of them, except either from Burke or
Hare--who were accustomed, according to the recent confession of
Burke, to keep even their wives out of the way, on such occasions. Our
contemporary has not stated, and we, therefore, imagine, cannot state,
that any third party, not of the gang, ever witnessed a single one of
the murders, or was ever so connected with their perpetration, as to be
able to give any thing approaching to the requisite direct evidence on
the subject. He should be prepared to do so, however, before censuring
the Lord Advocate for a mode of procedure which may have been, and
which, we believe, was wholly unavoidable.
Our contemporary objects to the extent of immunity he supposes to have
been given to Hare and his wife. On this point, we should think, he
need feel no uneasiness. If king’s evidence was necessary--if without
such evidence it be plain from what has occurred on the trial of
Burke, that there was more than a chance, a probability even, that
the conviction of none of the gang could have been obtained--we may
rest assured that the Lord Advocate offered no farther premium on the
treachery which he felt to be requisite, for the sacrifice of some of
them, than was absolutely necessary to insure it.
But then our contemporary thinks that, at all events, a different
selection ought to have been made, and that, by the testimony of
M‘Dougal, had she been admitted as king’s evidence, Hare might have
been convicted as well as Burke. In our last paper, we stated that
M‘Dougal, although not actually married to Burke, had, for ten years,
lived with him as his wife, and, in law, therefore, _was_ so, and could
not be examined against him; and as the other woman could not, for
the same reason, have been examined against Hare--and neither of them
could furnish against the husband of the other, that clear and decisive
evidence required from _socii criminis_, to give it sufficient weight;
the result of taking _them_ as king’s evidence might, and probably
would have been, the escape of the whole four. Burke, however, it
seems, has been confessing since his condemnation, and, as one of his
confessions is said to lead to an _inference_ that his cohabitation
with M‘Dougal could not make her his wife, as either he or she were
previously married, and the wife or husband of the former marriage
still alive--our contemporary, on the tacit assumption that this even
yet mysteriously hinted at fact was or ought to have been known, and
capable of proof _before_ the trial--endeavours to give the _coup de
grace_ to our argument against the possibility of having made M‘Dougal
give evidence against Burke. His attempt to do so is founded on the
result of what is generally called, reasoning in a circle, and seems to
require no farther notice. His whole argument, indeed, on this part of
the subject proceeds on this other assumption, that the Prosecutor, in
looking out for king’s evidence, has the selection of it entirely in
his own hand. This, we rather think, is but seldom the case; and, where
the gang have been connected as husbands and wives, the selection must
often be prescribed to him, or made imperative, by circumstances over
which he can have no control. Is our contemporary quite sure that the
Lord Advocate had not his hands tied, in this way, in the present case?
As to his lengthened argument to show that had the Lord Advocate not
moved for judgment against Burke, when found guilty of the last of the
three murders charged against him, it would have been competent to have
led evidence of the circumstances attending the other two--we would
simply ask, _cui bono?_ What good effect could have resulted from the
leading of it? Hare and his wife being protected as king’s evidence
against the consequences of _their_ participation in them, and M‘Dougal
not being charged with _them_ at all, they could only have been proved
against Burke. After what had passed, must not this have seemed, in
so far as Burke was concerned, to be like the pouring of water on a
drowned mouse, and, in so far as the public was interested, to be the
exciting of feeling unnecessarily and without object?
Our contemporary, in conclusion, asserts, that whatever immunity the
Lord Advocate may have felt it necessary to give to the infamous Hare,
the mother of “Daft Jamie,” taking advantage of the disclosures made by
that wretch under promise of pardon, is entitled to prosecute him, with
the concurrence of the Lord Advocate, which concurrence, in all these
circumstances, his Lordship, he says, will be bound to give. This seems
very novel doctrine. We can only say, that we should be extremely glad
to think our contemporary correct in laying it down; and no man, we are
certain, would be more happy to think his reasoning without flaw, than
the Lord Advocate.
There is still another point of _dittay_ against his Lordship, an
insinuation that he is unwilling to prosecute trains to the knowledge
of other murders which are said to have opened to him, and which are
reported to implicate other murderers than those already known to the
public. Such an insinuation might safely be contemned by any one, and
must be far too incredible, when made against his Lordship, to find a
couple of ears on the respective sides of the most credulous head in
the strongholds of credulity itself, to take it in. The Lord Advocate,
we suppose, thinks coolly before he acts--finds out some person to
be tried--and on grounds inferring probable conviction, before he
institutes the trial; and, as our contemporary admits that he is still
proceeding in his investigations, the charge of unwillingness to
prosecute, seems, even on his own showing, to be very premature, as
well as incredible.
We are satisfied that, in the prosecution of Burke and his associates,
and in the investigation of the system of murder with which they have
been connected, the Lord Advocate has done, and is doing his duty,
ably, impartially, and fearlessly, and that he is entitled to the
highest praise instead of the slightest censure. Feeling this to be the
case, we cannot withhold our humble effort to make it appear so.
_Edinburgh Observer._
The people are not satisfied with the imperfect disclosures that
have taken place, and the trivial atonement that is to be made to
outraged humanity, by the death of only one of the atrocious gang.
There is a cry for blood--more blood--throughout the land; and coming,
as it does, from the bulk of the nation, it will require no little
discrimination and firmness, on the part of the Public Prosecutor,
to see his way clearly, and to keep it when he has found it. A more
difficult situation than his, at the present time, we cannot well
imagine. Even the activity of the press, in reiterating the calls for
further inquiry and for more victims, at the very moment when he is
known to be indefatigably employed in prosecuting the one and searching
for the other, has greatly contributed to render his duties more
harassing and ungracious. Under a sincere, and, despite what others
say, we conceive a just impression, that all the monsters might escape
the gallows, as one of them has actually done, by a verdict of “not
proven,” he permitted two of them to purchase their worthless lives by
bearing testimony against their associates. That the Hares obtained
this immunity as being the lesser criminals in his estimation, we do
not believe. The fact of the particular murder, which led to the whole
discoveries, having been perpetrated under Burke’s roof, naturally
pointed out him and his guilty partner as the more immediate objects of
legal vengeance. It is evident, that throughout the whole business,
the Lord Advocate has been actuated by the most honourable anxiety
to investigate the affair to the uttermost; and had he not, at the
very outset of the trial, been urged into a concession to the legal
scruples of the counsel opposed to him, whose eloquence most assuredly
reft one wretch from the clutch of the hangman, not merely one, but
three acts of the horrid drama would have been publicly revealed.
It is stated, that since the trial, his Lordship and his assistants
have been unremitting in their inquiries. He has attended almost
every precognition, and surveyed in person the foul abodes which the
murderers inhabited, and even the dwellings of their victims. But he
refuses to violate the public faith, of which, in this instance he is
the custodier, by yielding up the tools he has been forced to employ,
to that punishment which they have so abundantly merited, yet from
which the nation stands pledged they are redeemed. God forbid that we
should advocate the indemnity of these monsters on any ground, save the
sanctity of such a pledge. We question greatly, whether Hare and his
partner, cast upon the world with ignominy and crime branded on their
foreheads, are not more condignly punished, than the wretched man whose
days are numbered, and whose doom, it is certainly not uncharitable
to predict, will yet overtake them. In the case of Weare’s murder,
Probert, one of the accessaries, was admitted to a like immunity. When
his foul breath had consigned one of his associates to the gallows, he
was allowed to go forth into the world a free man; but, like Cain, he
found himself an outcast, and, in the course of a few months, was again
arraigned as a felon, convicted, and executed.