recommend, and conceive that it would be a perilous innovation on the
prerogative of the Public Prosecutor to say, that in this instance, his
pledge of immunity shall be disregarded, unless some new charge can
be substantiated, we view the detestation so unaffectedly expressed
by the public towards the whole gang, as consolatory to humanity.
Had criminals, with hands so deeply dyed in blood, found even one
commiserator or advocate beyond the walls of the Court of Justice--had
any man ventured to whisper that the crimes which they have perpetrated
are not worthy of death--nay, had not the whole nation lifted up
its voice, and declared, that even death itself was but a miserable
atonement for crimes so monstrous, we should have regarded it as a
national disgrace. It is to be hoped, however, that this laudable
spirit will not degenerate into tumultuary violence. The authorities,
we are satisfied, will not relax their efforts to develope the whole
of these sanguinary atrocities; and, if the correspondence which is
at present carrying on between the Lord Advocate and the teachers of
anatomy should, in conjunction with other investigations in progress,
lead to the inculpation, in the remotest way, of any individual, we
are satisfied that nothing will shield the culprit from the vengeance
of the law, be his rank or previous respectability what it may. As yet
only one individual of that body has been in any way implicated in
these horrible transactions; and we know that a feeling is prevalent
that he has been treated with greater delicacy than he deserves;
but the culpability of one man must not be received as condemnatory
evidence against a whole tribe. An earnest desire is entertained by the
teachers of anatomy that the fullest investigation should take place;
and if criminal laxity in the receipt of subjects can be traced to any
particular quarter, an ample exposition will follow. This exposition
they are entitled to demand; for the reputation of the whole fraternity
is perilled by the revolting suspicions which the crimes of their
caterers have engendered.
* * * * *
_The Caledonian Mercury._
THE PUBLIC PROSECUTOR AND HIS APOLOGISTS.
_Mieux cents ennemis qu’un imprudent ami._--French Proverb.
The remarks which appeared in our Monday’s publication, on the defence
of the Lord Advocate inserted in a contemporary Journal of Friday
last, have been reviewed, not answered, in the columns of the same
paper of Tuesday; and were it not of the very greatest importance,
at the present moment, that the public should be accurately informed
respecting some of the points at issue, we should have been well
content to leave the subject to the decision of all competent persons,
upon our first and somewhat hurried statement. We trust that we shall
be excused for proceeding at once to deal with the only matters of law
and fact to which the writer has thought proper to advert.
And, in the first place,--(for the sake of perspicuity, we shall
take the different topics in the same order as formerly)--the writer
reluctantly admits the validity of the argument which we adduced
“to show that had not the Lord Advocate 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.” But he asks, _cui bono?_ “What
good effect could have resulted from the leading of it?” We answer,
first, that it would have redeemed the Lord Advocate’s pledge; and,
secondly, that it would have satisfied the country. Both in replying
to the arguments of the prisoner’s Counsel on the relevancy, and in
addressing the Jury for the Crown, his Lordship distinctly pledged
himself to probe and sift the _whole_ of these murders to the bottom.
In the former case, while contemplating being under the necessity of
deserting the diet against M‘Dougal, owing to the view taken of the
indictment by the Court as containing a _cumulatio actionum_, and the
exercise of their discretionary power in separating the charges, he
said, “The question is now reduced to one of time and trouble; for if
I do not proceed against her to-day, she will be proceeded against ten
days hence. In such circumstances I shall not certainly insist now on
that woman’s being tried on this indictment. I shall proceed against
her alone, since she now says that being tried on this indictment will
prejudice her case.” And again, almost immediately after, he added,
“No motive shall induce me, for one moment, to listen to any attempt
to smother this case; to tie me down to try _one single charge instead
of all the three_. I am told that the mind of the public is excited;
if so, _are they not entitled to know from the first to the last of
this case_; and _is it not my duty to go through the whole of these
charges_? I would be condemned by the country if I did not, and what to
me is worse _I should deserve it_.” The Court, in giving judgment on
the relevancy, fully recognised the propriety of this most distinct
and articulate pledge; for Lord Pitmilly unequivocally held, that it
was competent to try Burke on all the three charges, and that the
Public Prosecutor should proceed with the first and then with the
others. Lord Meadowbank, entirely concurring in this view, expressed
his opinion, that while their Lordships sustained the indictment, they
should “direct the Lord Advocate to proceed separately in the trial
of the different charges.” Lord Mackenzie and the Lord Justice Clerk
acquiesced in this suggestion, and, in fact, it ultimately became the
judgment of the Court. Fortified by such authority, the Lord Advocate
accordingly reiterated his pledge in his address to the Jury, and in
terms equally emphatic and unequivocal. Now, we would simply ask the
writer before us, Was this sacred and solemn pledge redeemed? Were
“all the three” charges tried? Were they gone through from first to
last? Did the Prosecutor do his duty according to his own view of it,
by going “through the whole of these charges?” He cannot answer in
the affirmative. By moving for, and obtaining judgment against Burke
on the conviction under the first charge, he rendered it impossible
for himself to redeem his pledge; and two of the charges were, in
consequence, dismissed without investigation. Now, was this not an
error in judgment, which is all we ever alleged? Nay, was it not
an error calculated to place the Prosecutor in a very embarrassing
position in reference both to his own pledge and to the public? It is
true the apologist says that trying Burke upon the first and second
charges, after he had been convicted on the third, would have been
“like pouring water on a drowned mouse.” But we cannot say we admire
either the elegance or the felicity of this illustration. The question
is not one that concerned Burke, whose fate was in fact determined by
the conviction under the third charge. It concerned the Lord Advocate
and the country alone; the former as having become bound to try “all
the three” charges; and the latter as, by his Lordship’s admission,
“entitled to know them from first to last,”--a knowledge which his
Lordship conceived it to be his “duty” to afford, and which he would
be deservedly condemned by the country if he did _not_ afford. But
the writer adds, that taking any further proceedings was calculated
“to excite the feelings of the public unnecessarily and without
object.” We are really surprised that any person could have been found
short-sighted and ignorant enough to hazard such an assertion. What!
was the exposure of one murder, and the quashing of all investigation
into the circumstances of other two, calculated to _allay_ the
excitement of the public mind; or rather, was it not calculated to
produce the very opposite effect? A corner of the veil only had been
lifted up; a glimpse merely had been given of crimes which this very
writer himself describes as “destined in point of atrocity, to stand
alone, and in advance of every other that man has hitherto been known
to commit,” and as covering up from the view “the very outposts and
limits of human wickedness;” and then the curtain was suffered to drop
on others which it was equally necessary that the public should know,
and which they were equally “entitled” to have fully and thoroughly
brought to light: this was the course pursued; ample scope was given
for the imagination to work, under the influence of an undefined
apprehension; and yet we are gravely told that this was the most
approved mode which could have been adopted to prevent an unnecessary
excitation of public feeling! Has it been attended, we would ask, with
any such results?
Next, as to the unquestionable title of Daft Jamie’s mother to
prosecute Hare for the murder of her son, with concourse of the Lord
Advocate, which concurrence his Lordship may be compelled to give,
our learned opponent remarks, that “this seems very novel doctrine.”
We certainly do not hold ourselves bound to instruct our opponent in
the first principles of criminal law; but, for the sake of a public
purpose, we shall endeavour to show that the doctrine we maintain,
so far from being “novel,” is _tritissimi juris_, one of the most
common and most thoroughly settled principles in our criminal code.
To entitle a private party to prosecute, he must have an _interest_,
not remote or feeble, but immediate and powerful in the cause; the
wrongs alleged must be wrongs done to the _person_, and “of a high
and aggravated kind, such as may naturally excite strong feelings of
anguish and resentment in the minds of the _kindred_ of the sufferer;”
an oath of calumny must be taken by the prosecutor, if required by the
party accused; caution must be found to insist in the prosecution; and
the law also subjects the private prosecutor in expenses, and even in
penalties, if he insist in a groundless or malicious accusation. Now
has not the mother of Daft Jamie an _interest_ in the prosecution we
point at? Was there not a wrong done to the _person_ of her innocent
child who was foully murdered? May she not with perfect safety take
the oath _de calumnia_, if required? And is it impossible for her to
find caution to insist, and to find means to defray the expense of
the prosecution? The public, with their usual generosity, will, we
doubt not, give a practical answer to the last of these queries; and
as to the others, we profess ourselves unable to discover that we have
proponed any “novel doctrine.”
Again, we said the Lord Advocate might be compelled to grant his
concurrence in such circumstances; and we think Mr. Burnett and Mr.
Baron Hume will amply bear out our assertion. The former, after
stating at length the conditions above briefly indicated, says, it is
perfectly understood “that his Majesty’s Advocate _cannot refuse_ his
concourse, and _may be compelled to give it_, in all cases where the
complaint of a private party is founded on a known and relevant _point
of dittay_, (murder for example) and as to which he has _prima facie_
a _title_ to insist.” pp. 306–7.--And Mr. Baron Hume is, if possible,
still more explicit on the point. After stating that the Lord Advocate
may refuse his concourse, if it be asked to a charge of witchcraft,
which a statute has expunged from the list of crimes, or of treason
for which no private party can prosecute, or of murder at the instance
of some stranger, who does not even allege that he is anywise related
to the deceased, he goes on to say, “On the other side, certainly
the Lord Advocate is not the absolute and accountable judge on such
occasions; but is subject to the control and direction of the Court,
_who will oblige him to produce and justify the grounds of his refusal
to concur_. Nay more; except in such extraordinary situations as those
above supposed, _he shall not even be allowed to engage in any inquiry
concerning the merits of the case, the propriety of the prosecution,
the form of the action, the sufficiency of the title, or the like_, BUT
SHALL BE ORDAINED TO COMPLY STRAIGHTWAY; _leaving the discussion of
these matters for the proper place and season, after the libel shall
be in Court_.” Vol. II. pp. 123–24. Lord Alemore’s opinion, given on
the complaint of Sir John Gordon against his Majesty’s Advocate, June
21, 1706, is equally precise: “Had the Advocate refused his concourse,
_he might have been compelled to give it_, for everyone is entitled to
justice; but he cannot be forced to prosecute.” Maclaurin, p. 298. Is
there any “novel doctrine” in all this?
But our opponent endeavours to complicate the matter by most
disingenuously attributing to us a statement which we never made, or
even so much as dreamt of, namely, that the mother of Daft Jamie,
“_taking advantage of the disclosures made by the infamous Hare, under_
PROMISE _of pardon_,” is entitled to prosecute him with the concurrence
of the Lord Advocate. The artifice is paltry enough; but our answer is,
that the rights of the private party, who, as such, “is entitled to
justice,” cannot be in any manner of way læsed or impaired, far less
destroyed by any previous proceedings of the Prosecutor, in his public
capacity; especially when these proceedings are in the eye of the law
illegal, and only winked at upon a principle of utility or general
expediency. What, in the name of common sense, of reason, and of law,
had the mother of Daft Jamie to do with the disclosures made by Hare
to the Lord Advocate “under _promise_ of pardon?” That “promise” may
be good against his Lordship himself; but it is utterly monstrous to
pretend that it can in any way affect the rights of a private party who
comes forward to prosecute; which it would unquestionably do, in the
most serious manner, were his Lordship to be held entitled, in virtue
of that most injudicious promise, to refuse his concurrence. Nay, we
maintain, on the authority of Mr. Baron Hume, that it would be illegal
in the Lord Advocate, when his concourse was applied for, to take any
such circumstance into his consideration at all; for it is expressly
laid down in the passage already quoted, that his Lordship “shall not
even be allowed to engage in any inquiry concerning the _merits_ of
the case; the _propriety_ of the prosecution, the _form_ of the action,
the _sufficiency_ of the title, or _the like_; all these are _jus
tertii_ to him;” and, accordingly, the Court would “ordain him to comply
straightway; leaving the discussion of these matters for the proper
place and season, after the libel shall be in Court.” This, we should
think, is not very “novel doctrine;” and as no man, we are assured,
“would be more happy to think our reasoning without flaw, than the Lord
Advocate,” (which we well believe,) we humbly hope that the exposition
we have now given will be found to answer that condition.
These then are the main points of our case; and we flatter ourselves
that we have made them out. But as we are resolved to engage in no
further controversy on the subject, and therefore wish to clear off
our score at once, we shall take the liberty of adverting, before we
conclude, to one or two points of secondary importance, on which our
opponent strenuously insists.
And, in the first place, he persists in maintaining that “had Hare
and his wife not been witnesses, there is the _best reason for
supposing_ that the conviction of none of the four would have been
obtained.” We would have been much better pleased, however, had this
incurious apologist condescended to inform us in what this “best reason
for supposing” consisted; as we confess our own inability to discover
a shadow of “reason” for the “supposition” so gratuitously made.
The point, we are well aware, is an important one for our opponent;
because, unless he can make out that there was no case against Burke,
without the evidence of Hare and his wife; in other words, disprove our
argument that there was sufficient testimony to convict without the
evidence of the accomplices at all, then our conclusion is inevitable,
that Hare and his wife ought to have been at the bar, and not in the
witness-box. But, strange to say, although the point at issue is so
important to the justification which our adversary labours to make
out, he has not ventured to bring forward a single argument, or show
a vestige of “reason” or authority, for the opinion he so strenuously
asserts. We shall not, however, follow his example in this respect,
but state as shortly as possible the grounds upon which we hold that
Hare and his wife ought to have been placed at the bar beside Burke and
M‘Dougal.
The testimony of a _socius criminis_ is good in law only in so far
as it is corroborated by other testimony perfectly unexceptionable,
or by circumstances of real evidence; and where it stands alone and
unsupported, it is the duty of the presiding Judge to direct the
Jury to pay no attention whatever to it. Let us apply this test to
the evidence of Hare and his wife, and observe to what conclusion it
will lead. The former, wherever he spoke to circumstances which fell
within the knowledge of unexceptionable witnesses, differed from, or
rather was flatly contradicted by them; and consequently his evidence
in regard to these was of no avail whatever, except to impeach his
own credibility. Again, he was contradicted by his wife in respect to
several of the occurrences in Burke’s and Connaway’s on the evening
of the murder; and both were contradicted in regard to other matters
in which they agreed, by the unexceptionable witnesses. As to what
they said in regard to matters concerning which no other person could
speak, they stood alone and unsupported, and of course were not in law
entitled to be believed; while they were farther discredited by the
want of all corroboration in regard to circumstances spoken to equally
by them, and by the unexceptionable witnesses. How then was it possible
that any weight whatever could be attached to such evidence, either
by the Court or the Jury, particularly the latter? Two miscreants,
whose only title to be believed was their having been engaged in the
commission of three murders, are adduced as witnesses to speak to
one of them, and wherever their testimony is susceptible of being
corroborated, it is flatly and pointedly contradicted by persons who
are above all suspicion; and where it stands alone and unsupported, it
is in the eye of the law worth nothing. Why, then, were such witnesses
adduced at all? They were not necessary, because their testimony was
not and could not be believed; and, in point of fact, their depositions
served no other purpose, except to enable the Dean of Faculty to plead
what would have been otherwise nearly an unpleaded case, and to point
out such a formidable array of flagrant contradictions as to shake
the minds of the Jury in regard to the effect of the unchallenged and
unchallengeable testimony. The case, therefore, was, in point of fact,
made out against Burke by other evidence than that of Hare and his
wife; and as the same evidence which led to the conviction of Burke,
would have also led to the conviction of Hare at least, we have again
to submit that that hideous wretch, if not also his wife, ought to have
been placed at the bar beside his brother murderer.
We are accused of having blamed the Lord Advocate “for not having
possessed the gift of second-sight;” and various other follies which
seem to have entered the imagination of our opponent, when heated
with his subject, are also laid to our charge. To these, however, we
disdain to offer any reply. We can well believe that the case opened
upon his Lordship gradually, and that, had he now to retrace his steps,
he would, in many respects, act differently from what he has done. With
the very best intentions in the world, a Prosecutor may be placed in
such circumstances as almost inevitably to lead him to bungle a case:
but surely it can be no very heinous offence to point out such errors
as a warning for the future, and at the same time to show how even
at present they may be in a great measure remedied.--“The very head
and front of our offending hath this extent--no more.” It is true,
we called for further investigation, and we did our best to indicate
what channels ought to be explored. That call has been answered, and
inquiries have been set on foot which can scarcely fail to lead to
important results. In regard to the nature of these inquiries, or the
facts which have been elicited, we are for the present dumb. Our object
is to aid, not to thwart, the progress of judicial investigation; and
no wish to gratify the public curiosity, or any other motive indeed
shall induce us to breathe a whisper calculated to defeat the great
and necessary purpose which the Public Prosecutor is now labouring so
zealously to accomplish.
In order to give a connected account of the preliminary legal
proceedings respecting the contemplated trial of Hare, we shall delay
introducing the subject at present. In a future number a detail of the
whole proceedings will be given.
We now proceed to detail the particulars which we have carefully
collected, with respect to the lives and characters of the several
individuals who have been concerned in these nefarious transactions. Of
these, the first we shall notice is,
WILLIAM BURKE.
We can pledge ourselves that every circumstance that is here narrated,
has been obtained from such sources as to leave no doubt of its
authenticity; it will be seen that while this memoir is a great deal
fuller than any one that has appeared, it is also dissimilar, in many
particulars, to the disjointed fragments that have been from time to
time published; how these have been obtained, we cannot say, but we
can aver that this account has been received from sources which may be
relied on, and much of it from the unhappy man himself, indeed so much
as to entitle us to say that it is almost his own account.
WILLIAM BURKE, whose crimes have condemned him to an ignominious death
on the scaffold, describes himself, in his judicial declaration,
emitted before the Sheriff-substitute of Edinburghshire, in relation
to the cause for which he was tried, as being thirty-six years of
age. He was born in the parish of Orrey, near Strabane, county of
Tyrone, in Ireland, about the year 1792. His parents were poor, but
industrious and respectable in their station, which was that of
cottiers, occupying, like the most of the peasantry of Ireland, a
small piece of ground. The Irish are remarkable for the avidity with
which they seek education for their children, under circumstances
in which it is not easily attainable. The parents of Burke seem to
have been actuated by this laudable desire, as both William and his
brother Constantine, must have received the elements of what, in their
condition, may be called a good education, and superior to what usually
falls to the lot of children in their rank in Ireland. He was educated
in the Roman Catholic faith, which he has ever since nominally adhered
to, though with little observance of its doctrines or ceremonies. He
is by no means, however, a person of the brutal ignorance or stupid
indifference that his callously continuing in a course of unparalleled
wickedness, apparently without compunction, would betoken. He has
sinned deeply, but it has not been altogether against knowledge, as he
could at times put on a semblance of devotion; and during the fits of
hypocrisy, or it may be, starts of better feeling, before he became
so miserably depraved, his conversation was that of a man by no means
ignorant of the truths of Christianity, and such even as to lead
some to imagine him seriously concerned about his eternal salvation.
During one of these temporary ebullitions about five years ago, he
became an attendant on a prayer-meeting held on the Sabbath evenings
in the Grassmarket. He was, for some time, remarked as one of its most
regular and intelligent members. He never omitted one of its meetings,
and expressed much regret when it was discontinued. As a Catholic, he
was considered wonderfully free from prejudice, frankly entering into
discussions upon the doctrines of his church, or those of other sects,
with whose tenets he showed some acquaintance.
He read the Scriptures, particularly the New Testament, and other
religious books, and discussed their merits. On a Sabbath, especially
though he never attended a place of worship, he was seldom to be seen
without a Bible, or some book of devotion in his hands.
At that time no one of his acquaintances would have admitted the idea
for a moment that he was capable of committing such infamous crimes,
and probably his own mind would have revolted at the contemplation of
such enormities; but a continued indulgence in sin produced in him its
never failing consequences in hardening and deadening the heart, and
fitting it for the perpetration of deeds, which a little before the
sinner would have shuddered at.