THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA GIFT OF Daniel A. Murphy ^ >x w d p w w V c^ r^ W <\ ,t> \ *5| V 3 t ^ ^ S 1 s H H- ( a 55 \ p ^ \ til |s S 1 WITLTL.IAM BTHttCE. as lie appeared at die Baa* , takrax in. Court . Published by Thomas Ireland JunT Edinburgh- WEST PORT MURDERS; OR AN AUTHENTIC ACCOUNT OP THE ATROCIOUS MURDERS COMMITTED BY BURKE AND HIS ASSOCIATES; CONTAINING A FULL ACCOUNT OF ALL THE EXTRAORDINARY CIRCUMSTANCES CONNECTED WITH THEM. ALSO, A REPORT OF THE TRIAL OF BURKE AND M'DOUGAL. i WITH A DESCRIPTION OF THE EXECUTION OF BURKE, HIS CONFESSIONS, AND MEMOIRS OF HIS ACCOMPLICES, IXCLUDIXft THE PROCEEDINGS AGAINST HARE, &c. ILLUSTRATED BY PORTRAITS AND VIEWS. " O horror ! horror ! horror ! tongue nor heart Cannot conceive nor name thce !" Maclr.th, EDINBURGH : PUBLISHED BY THOMAS IRELAND, JUNIOR, 57, SOUTH BRIDGE STREET. 1829. GIFT fe EDINBURGH : PRINTED BY A, BALFOUR AND CO. HIGH STREET. CONTENTS. Page INTRODUCTION . . . . .1 Narrative of the Officer who apprehended the Murderers, note . 4 ..Trial of Burke and M'Dougal .... 9 Indictment . . . . ; 12 hist of Witnesses .... .15 List of Jury .... . 36 Witnesses Examined James Braidvvood 36 Mary Stewart ... .36 Charles M'Lauchlan 37 William Noble ... .38 Anne Black or Connaway . .3D Janet Lawrie (or Law) . . . 42 Hugh Alston . -. . . . 44 Elizabeth Paterson . . . 4.5 David Paterson ... . . 45 John Broggan . . 47 Ann M'Dougal or Gray . 47 James Gray . , 50 George M'Culloch . . pi John Fisher ... ,52 William Hare (or Haire) . A . 53 Margaret Hare (or Haire) . 62 Dr. Black . . . . 65 Dr. Christison . 66 Declaration of Burke, emitted 3d November . 67 Do. do. 10th November . . . 71 Do. do. 19th November . . 7i Declaration of M'Dougal, 3d November . . 75 Do. do. 10th November . 78 Verdict . ... .92 Sentence ...... 95 List of Counsel . . . . . 96 Remarks . . . .97 Behaviour of Pannels during Trfai . . . 101 Popular Excitement . . . . 105. ivr81 KflftR IV CONTENTS. Page Conduct of Burke in Lock-up-house , . 108 Liberation of M'Dougal . . . HO /'iBurke's Conduct in Jail . ; 113 LHare's Behaviour . . . . U6 Burke's and Hare's Houses . . . 120 Remarks on their Characters "> , . . 123 Murder of Mary Paterson " qf r .~ ' . . 124 Janet Brown's Statement relative to the Murder of Paterson . 125 Murder of Daft Jamie . . . . 132 Curious Rencontre between Daft Jamie and Bobby Auld . 133 Legal Discussions relative to the Trial of Hare and the Socii Criminum 137 Memoirs of Burke, with particulars of all the Murders communicated by Himself . ... 170 List of Murders committed by. Burke and Hare . . . 201 Town Council Proceedings . . . 212 Confessions x)f Burke from the Caledonian Mercury . 216 Preparations for Burke's Execution . . . . . 221 Removal to.the Lock-up-house .... . 223 Occurrences on the Street previous to the Execution . 227 The Execution . . . . 234 Character of Burke . . . . . . 247 Occurrences after the Execution .... . 251 Description of the Body . . . . , . 252 Riot at the College . ... . 254 Phrenological Development of Burke . . 259 Observations on the Head of William Burke , . 262 Remarks on do. . . . . . . . . 267 Proceedings against Hare . ... . . ?72 Memoirs of Hare . . 306 Hare's Reception in Dumfries . . . . . 312 Hare's Appearance . ... 325 Letter from the Sheriff to the Right Hon. the Lord Provost . 329 Official Confessions of Burke , . . 331 Confessions of Burke from the Edinburgh Evening Courant . 340 Account of Helen M'Dougal . . . 353 , . Mrs. Hare. . . . . 355 Popular Tumult . ... 361 LIST OF PLATES, Portrait of Burke, to face, title Ground Plan of Burke's House . . .36 Portrait of Helen M'Dougal ... % . )T Burke's House from the Back Court . . 120 View of Burke's Execution , . . . 237 Portrait of Hare . . . ... 272 Fac-simile of Burke's Hand-writing; , . 352 Portrait of Mrs. Hare . . 35* THE WEST PORT MURDERS. have heard a great deal of late concerning " the march of intellect" for which the present age is supposed to be dis- tinguished ; and the phrase has been rung in our ears till it has nauseated us by its repetition, and become almost a pro- verbial expression of derision. But we fear that, with all its pretended illumination, the present age must be characterized by some deeper and fouler blots than have attached to any that preceded it ; and that if it has brighter spots, it has also darker shades arid more appalling obscurations. It has, in fact, nooks and corners where every thing that is evil seems to be concentrated and condensed ; (lens and holes to which the Genius of Iniquity has fled, and become envenomed with newer and more malignant inspirations. Thus the march of crime has far outstripped u the march of intellect," and attained a monstrous, a colossal development. The know- ledge of good and evil would seem to have imparted a fearful impulse to the latter principle ; to have quickened, vivified, and expanded it into an awful and unprecedented magnitude. Hence old crimes have become new by being attended with unknown and unheard-of concomitants ; and atrocities never dreamt of or imagined before have sprung up amongst us to cover us with confusion and dismay. No one who reads the fol- lowing report of the regular system of murder, which seems to have been organised in Edinburgh, can doubt that it is almost wholly without example in any age or country. Mur- der is no novel crime ; it has been done in the olden time as well as now ; but murder perpetrated in such a man- ner, upon such a system, with such an object or intent, and accompanied by such accessory circumstances, was never, we believe, heard of before, and, taken altogether, utterly tran- scends and beggars every thing in the shape of tragedy to be found in poetry or romance. Even Mrs. Radcliffe, with all - WEST POUT MUKDERS. her talent for imagining and depicting the horrible, has not been able to invent or pourtray scenes at all to be compared, in point of deep tragical interest, with the dreadful realities of the den in the West Port. To show this, we shall endeavour to exhibit a faint sketch of the more prominent circumstances attending the murder of the. woman Campbell or Docherty, as proved in evidence at the trial. In the morning of a certain day in October last (the 31st) Burke chances to enter the shop of a grocer, called Rymer ; and there he sees a poor beggar woman asking charity. He ac- costs her, and the brogue instantly reveals their common country. The poor old woman's heart warms to her country- man, and she tells him that her name is Docherty, and that she has come from Ireland in search of her son. Burke, on the other hand, improves the acquaintance, by pretending that his ^mother's name was also Docherty, and that he has a wondrous affection for all who bear tlie same euphonous and revered name. The old woman is perfectly charmed with her good fortune in meeting such a friend in such a countryman, and her heart perfectly overflows with delight. Burke, again, seeing that he has so far gained his object, follows up his professions of regard by inviting Mrs. Docherty to go with him to his house, at the same time offering her an asylum there. The poor beggar woman accepts the fatal invitation, and accom- panies Burke to that dreadful den, the scene of many previous murders, whence she is destined never to return. Here the ineffable ruffian treats her to her breakfast, and as her grati- tude rises, his apparent attention and kindness increase. This done, however, he gees in search of his associate and accom- plice Hare, whom he informs that he has " got a shot in the house," and invites to come over at a certain time and hour specified " to see it done." Betwixt eleven and twelve o'clock at night is fixed upon by these execrable miscreants for destroy- ing the unhappy victim whom Burke had previously seduced into the den of murder and death ; and then Burke proceeds to make the necessary arrangements for the commission of the crime. Gray and his wife, lodgers in Burke's house, and whom the murderers did not think it proper or safe to entrust with the secret, are removed for that night alone : another bed is procured for them, and paid for, or offered to be paid for, by Burke. By and by the murderers congregate, and fern ales, cognisant of their past deeds, as well as of the crime which was to be perpetrated, mingle with them in this horrid meeting. Spirituous liquor is procured and administered to the intended victim ; they all drink more or less deeply ; sounds of mirth and revelry are heard echoing from this mi- WEST PORT MURDERS. niature pandaemonium ; and a dance, in which they all, includ- ing the beggar woman, join, completes these infernal orgies. This is kept up for a considerable while, and is the immediate precursor of a deed which blurs .the eye cf day, and throws a deeper and darker shade around the dusky brow of night. At length the time for " doing it" arrives. Burke and Hare got up a sham fight, to produce a noise of brawling and quarrelling, common enough in their horrid abode ; and when this has been continued long enough as they think, Burke suddenly springs like a hungry tiger on his victim, whom ciie of his accomplices had, as if by accident, thrown down, flings the whole weight of his body upon her breast, grapples her by the throat, and strangles her outright. Ten minutes or a quarter of an hour elapse while this murderous operation is go- ing on, and ere it is completed ; during the whole of which time Hare, by his own confession in the witness-box, sat upon the front of the bed, a cool spectator of the murder, without rais- ing a cry or stretching out a hand to help the unhappy wretch thus hurried into eternity by his associate fiend Burke. As to the women (Helen M'Dougal, Burke^s helpmate, and the wife of the miscreant Hare) they seem to have retreated into a passage closed in by an outer door, " when they saw him (Burke) on the top of her" (Docherty), and to have remained there while he was perpetrating the murder ; without, how- ever, uttering a single sound or doing a single act, calculated to interrupt the murderer in his work of blood, or to procure assistance to the dying victim. These she-devils were familiar with the work of death ; and one of them, the wife of Hare, confessed it in the witness-box. She had seen, she said, such " tricks'* be-fore. No language can add to the impression which these facts are calculated to produce. The succeeding events, however, are not less picturesquely horrifying. The murder was com- mitted at eleven o'clock, and in an hour after, or at twelve. Burke fetches Paterson, the assistant or servant of a teacher of Anatomy in Edinburgh, to whom he was in the habit of selling the bodies of his victims, to the spot the murdered body being by this time stalled under the bed and covered with straw ; and, pointing to that truly dreadful place, teils him that he has got a subject for him there, which will be ready for him in the morning. The demons then appear to have recreated themselves with fresh dozes of liquor ; and about four or five in the morning, the two women already mentioned, with a fel- low of the name of Broggan who had joined the party, after the deed was done. laid down in the bed, beneath which the zaurdered body of Docherty, not yet cold in death, had been WEST PORT MURDERS. crammed, and went to sleep, some of them at least, as coolly as if nothing of the kind had occurred. When daylight re- turned, the tea-box, so often mentioned in the course of the trial, was procured, and the slaughtered body crammed into it, and sent off by the porter M'Cullocli, to Surgeons 7 Square ; after which Burke and his accomplice Hare set off for Newing- ton to obtain the whole or part of the price of the subject they had procured by murder, and actually got Jive pounds, being one-half of the price agreed upon.* * The following- narration has been taken down from the lips of the officer who apprehended Burke and his accomplices : " On Friday, the 31st of October, a little elderly woman was seen begging about the West Port: she entered the shop of Mr. Rymer, adjacent to Biirke's house, for this purpose, when Burke was there purchasing whisky. He seems to have immediately iixed upon her as a fit subject for his atrocious purposes, and endeavoured to decoy her into his power. He asked her name, and what part of Ireland she came from; and upon receiving her answers, replied that he was from the same place, and that she must be a relation of his mother, whose name was Docherty. He then promised to give her breakfast, and they left the shop together, and were seen to enter Biirke's house. She was afterwards seen in the house at different times during the day ; and two lodgers, Gray and his wife, Avere sent to Hare's house to make room for her, under the pretence that she was a friend from Ireland. They were afterwards seen making merry, drinking and dancing- in company with Hare and his wife, lirst in the house of Ann Connaway, and afterwards in Burke's. During the night, a great noise of quarrelling and cries of murder were heawl in Burke's house ; but the neighbours, knowing that two men and three women were in the house, and having frequently heard similar uproars, did not think much of it, nor interfere. One of them, however, had the curiosity to look through the key-hole, when he saw M'Dougal holding a bottle to the mouth of Campbell, swearing at her for not drinking, and pouring the whisky into her mouth. Then all was quiet for a little. Shortly after, the noise again commenced, which was again succeeded by silence. At this time, that is, between 11 and 12 o'clock, it is presumed the horrid deed was perpetrated. " In the morning, M'Dougal, who passed for Burke's wife, accounted for the .absence of Campbell, or * the little old woman' as they called her, as well as for the noise, by saying that she had, during the night, made too free with her husband, Burke, and that she had kicked her out of the house : ;iud this seems to have allayed any suspicions. In the morn- ing, the lodgers Gray and his wife returned to Burke's; but upon Mrs. Gray attempting to search about the bed, and the straw under it for some "articles she had left, she was ordered by Burke with an oath, * to keep out from them.' Burke afterwards left the house, desiring Broggan a carter who was there to sit on a chair close to the straw until lie returned. Broggan, however, followed him in a short time, and Mac- Dougal who appeared to be in liquor, started up from the bed asking for her husband, and afterwards quitted the house, leaving Gray and his wife sitting in it. Mrs. Gray then commenced searching for her child's stock- iaf;> cT.:d cleaning the house, and from the suspicions which had been excit- ed by Burke's conduct, she examined the straw and found the murdered 1 ody, which her husband pulled out, and which they immediately recog- nised to be that of Campbell. On going up the stair, they were met by M'Dougal, whom Gray informed of the body being found. She at- WEST POUT MURDEUS. * Such is an imperfect and feeble outline of the facts of this case, in the course of which was disclosed the horrid and ap- palling fact, that, in certain holes and dens, both in the heart and in the outskirts of this city, murder had been reduced in- to a system, with the view of obtaining money for the bodies murdered ; and that it was perpetrated in the manner least likely to leave impressed upon the body any evident or decisive marks of violence, being invariably committed by means of suffoca- tion or strangling, during partial or total intoxication. The public is therefore to consider the present as only one out of many instances of a similar nature which have occurred. footed to pass it off as if the woman had died hi consequence of a drunken frolic, and attempted to bribe them into silence by offering them the ominous sum of ten pounds. She invited Gray and his wife to take a dram in a neighbouring public-house, .where she, along with Hare's wife, hurriedly left them, and upon their return to the house, in two or three minutes, they called the people next door to come in, as they wished to show them something 1 ; but upon examination the body was gone. They immediately lodged information at the police office, and a party of policemen were so lit, but notwithstanding the most diligent search that could be made, the body could not be found, nor the parties implicated. At this time a servant girl who lived near informed them that she had seen Burke and his Avife, Hare and his wife, and the porter M'Culloch, going up the stair, the porter currying a tea-box with the top stuffed with straw; and that she laid her hand upon it and found it soft. Upon the return of the policemen, sometime afterwards, Burke came in, it is supposed to get some things previous to escaping. He was pointed out by Gray, and immediately seized. He seemed to wish to laugh it off, under the pretence that ii was the lodgers who wished to do him an ill turn, saying that he defied all Scotland to charge him with any thing- wrong. Mrs. Burke then came in, crying that she heard the police were after her husband about the old woman, but that it was ail a drunken >pree, and used a great many capers and dry laughs. She was also immediately taken into custody, and both were conveyed to the police office. ^ '' There was still no tidings of the body, Avhen it was suggested that the dissecting rooms should be searched; and Lieutenant Paterson and Ser- jeant-major Fisher Aventon Sunday morning for that purpose. They were informed by Pa-terson, Dr. Knox's man, that they had only received one body, which was shown them, but from their not having seen Campbell they could not identify it. Gray and his \vife \vere sent for, Avho soon recognised it, and after procuring a warrant it was corn-eyed to the police office. " Early on Sabbath morning instructions were received to apprehend Hare and his Avife,and a party proceeded to his house about eight o'clock, and were informed that they were both in the house and in bed. Upon informing them that Captain Stewart wished to speak with them upon the subject of the body that had been found in Burke's, Mrs. Hare, laughing, said, that the Captain and the police had surely A r ery little to do UOAV to look after a drunken spree like this, repeatedly jeering and laughing. Hare then said to her that he vras at Burke's and had a dram or two, and likely they might l;e attaching some blame to them, but he did not care for Captain Stewart, and they had better rise and see Avhat he had to say. They were both conveyed to the police office, and immediately lodged in separate cells." 6 WEST POUT MURDERS. Hare's wife admitted that she had witnessed many " tricks" of the same kind; and Hare himself, when undergoing the searching cross-examination of Mr. Cockburn a cross-exami- nation such as was never before exemplified in any Court of Justice durst not deny that he had been concerned in other murders besides that of Docherty ; -that a murder had been committed in his own house in the month of October last ; that he himself was a murderer, and his hands steeped in blood and slaughter : we say he durst not deny it, and only took refuge in " declining to answer' 1 the questions put to him ; which the Court of course apprised him he was entitled to do in regard to questions that went to criminate himself so deeply, and but for which caution we have little doubt that he would have confessed not merely accession, but a principal share in several murders. In fact, this " squalid wretch," as Mr. Cockburn so picturesquely called him, from the hue and look of the carrion-crow in the witness-box, was disposed to be extremely communicative, and apparently had no idea that any thing he had stated was at all remarkable or extraordinary. Daft Jamie was murdered in this miscreant's house, and he has mentioned some circumstances connected with the destruc- tion of this poor innocent, calculated to form a suitable pendant to the description we have already given of the murder of Docherty. Jamie was enticed into Hare's house by Burke, the usual decoy-duck in this traffic of blood (the appearance of Hare himself being so inexpressibly hideous that it would have scared even this moping idiot,) and he was plied with li- quor for a considerable time. At first he refused to imbibe a single drop ; but by dint of coaxing and perseverance, they at last induced him to take a little ; and after he once took a little, they found almost no difficulty in inducing him to take more. At length, however, he became overpowered, and laying himself down on the floor, fell asleep. Burke, who was anxiously watching his opportunity, then said to Hare, " Shall I do it now ?" to which Hare replied, " He is too strong for you yet ; you had better let him alone a while." Both the ruffians seem to have been afraid of the physical strength which they knew the poor creature possess- ed, and of the use he would make of it, if prematurely reused. Burke, accordingly, waited a little, but getting impatient to accomplish his object, he suddenly threw himself upon Jamie, and attempted to strangle him. This roused the poor" crea- ture, and, muddled as he was with liquor and sleep, he threw Burke oft' and got to his feet, when a desperate struggle ensued. Jamie fought with the united frenzy of madness and despair, and Burke was about to be overpowered, when he WEST POUT MURDEHS. / called out furiously to Hare to assist him. This Hare did by tripping up Jamie's heels; after which both the ruffians got upon him, and, at length, though not even then without the greatest difficulty, succeeded in strangling him. And all this has happened and has been carried on in a Christian country, and in the Metropolis of Scotland, without a breath of suspicion having been excited. as to the existence of such hellish atrocities, till Gray lodged information at the Po- lice Office of the murder of the woman Campbell orDocherty. It was said at the trial, that the public mind had been excited and inflamed on the subject to a degree wholly unprecedented; but how is it conceivable or possible that even the lightest whis- per of such infernal deeds of an organised system of murder could find its way to the public, without producing this ex- citement, without kindling up every feeling of horror and in- dignation which the darkest and most unheard of atrocities could possibly rouse in virtuous and untainted minds ? This was a natural result of a great and unparalleled crime, or rather system of crimes ; it was a result which no power or in- fluence could prevent ; it was a result which, even if it had been possible, ought not to have been prevented. But as this excitement existed as it had more or less pervaded every mind and as it might eventually, if not controlled, have interfered with and affected the administration of stern justice, it was right, nay it was necessary, both for the sake of public justice and also for the satisfaction of the country, that the prisoners should be ably and powerfully defend- ed. Under this conviction, the head of the Bar of Scot- land, in conjunction with some other of its brightest orna- ments, came forward to offer their gratuitous services on the occasion ; and certainly never was there a defence in any case conducted with more consummate ability never per- haps was there a trial in which higher talent, greater expe- rience, or more splendid and overmastering eloquence were displayed. And we rejoice that such has been the case. Conduct like this reflects eternal honour on the Bar ; because there are instances in which it may throw a shield around innocence ; while, in every" case, it is calculated to pre- serve the course of justice pure and un defiled, as well to give additional satisfaction to the country, to create addition- al confidence in the purity of the law, and to beget a strong- er feeling of security in the protection which it affords. The most atrocious crimes are precisely those which ought to be most cautiously and fully investigated ; where prejudice of all sorts ought to be most anxiously excluded or counteracted ; where every facility in the power of the Court to give, ought WEST POUT Mt'KDERS. to be afforded to the prisoner, both in preparing for his defence and on his trial ; where the rules of evidence ought to be most strictly adhered to, in so far as regards either the admissibility or credibility of testimony ; where the accused should have the fullest benefit of every presumption in his favour ; and where his defence, ought if possible, to be conducted with the great- est legal ability. Now Burke had all these advantages. The Court, in the exercise of the discretion with which it is entrust- ed, adjudged the trial of the prisoner to proceed upon only one of three separate acts of murder charged against him in the indictment ; while the splendid array of Counsel, who vo- luntarily and gratuitously undertook the conduct of his de- fence, exerted their whole skill, talents, and eloquence, in his behalf. And we repeat that we rejoice at this ; for, as was well observed by the Lord Advocate in addressing the Jury for the Crown upon the evidence which had been led, if the prisoner had any cod defence, it was thus sure to have ample justice done to it ; and if a conviction was ob- tained, it would be more satisfactory to the country, and in- finitely more important to the purity and efficacy of the law. In these circumstances, however, a conviction has been obtained against the panne! Burke the prime murderer the immediate and direct agent by whom the crime charged was committed the agent also, we firmly believe, by whom not three but thirteen persons were slaughtered, with the intent of excambing their murdered bodies for gold; this monster, we say, has been convicted, and ad- judged to suffer the highest punishment of the law : and, with a sort of poetical justice, he who made subjects of others, is to be made a subject himself, and he now knows that his vile carcass, when the hangman is done with it, will be subjected to the same process with the bodies of his murdered victims. The idea of hanging him in chains would have been out of all keeping with his crime ; and hence, though once entertained, it was most properly and judiciously abandoned. But the conviction of Burke alone will not satisfy either the law or the country. The unanimous voice of so- ciety in regard to Haje is, Delendus est ; that is to say, if there be evidence to S&nvict him, as we should hope there is. He has been an accessory before or after the fact in nearly all of these murders ; in the case of poor Jamie he was un- questionably a principal ; and his evidence on Wednesday only protects him from being called to account for the murder of Docherty. We trust, therefore, that the Lord Advocate, who has so ably and zealously performed his duty to the country upon this occasion, will bring the " squalid wretch" TRIAL OF WILLIAM BURKE AND HELEN M C DOUCAL. 9 to trial, and take every other means in his power to hare these atrocities probed and sifted to the bottom. TRIAL OF WILLIAM BURKE AND HELEN M'Dou-GAL. No trial in the memory of any man living has excited so deep, universal, and, we may almost add, appalling an interest as that of WILLIAM BURKE and his female associate, HELEN M'DouGAL, which took place on Wednesday, 24th December, 1828. By the statements which from time to time appeared in the newspapers, public feeling had been worked up to the highest pitch of excitement, and the case, in so far as the miserable pannels were concerned, to a certain extent preju- diced by the natural abhorrence which the account of a new and unparalleled crime was calculated to excite. This, how- ever, is an evil inseparable from the freedom, activity, and enterprise of the press, which is necessarily compelled to lay hold of the events of the passing hour, more especially when these are of an extraordinary or unprecedented kind : But it was more than atoned for by many countervailing advan- tages of the greatest moment to the interests of the community; and, besides, won the whole, what is called in this country a waugh rather than a ferocious appearance ; though there is a hardness about -the features, mixed with an expression in the geey twinkling eyes, far from inviting. The female pri- soner/ls fully of -the middle size, but thin and spare made, though evidently of large bone. Her features are long, and by no means disagreeable, a pair of large, full, black eyes, imparting to them even something of interest and expressive- ness ; but the upper half of her face is out of propor- tion to the lower. She was miserably dressed in a small stone- coloured silk bonnet, very much the worse for the wear, a printed cotton shawl, and a cotton gown. She stoops considerably in her gait, and has nothing peculiar in her appearance, except the ordinary look of extreme penury and misery, common to unfortunate females of the same degraded class. Both pri- soners, especially Burke, entered the Court without any visible signs of perturbation, and both seemed to attend very closely to the proceedings which soon after commenced. The Court met at precisely a quarter past ten o'clock. The Judges present were, the Right Honourable the Lord Justice Clerk, and Lords Pitmilly, Meadowbank, and Mackenzie. Their Lordships having taken their seats, and the instance having been called, The Lord Justice Clerk said William Burke, and Helen M'Dougal, pay attention to the indictment that is now to be read against you. Mr. Patrick Robertson. I object to the reading of the in- dictment. It contains charges which I hope to be able to show 12 TRIAL OF WILLIAM BURKE your Lordships are incompetent, and the reading of the whole of the libel must tend materially to prejudice the prisoners at the bar. The Lord Justice Clerk. I am unaccustomed to this mode of procedure. It depends upon the Court whether the in- dictment shall be read or not. Mr. Patrick Robertson. Certainly, my Lord ; but I under- stand it is not necessary to read the indictment ; and we object to its being done on the present occasion. Lord Justice Clerk. We have found but little advantage to result from the practice recently introduced of not reading the indictment. It has rendered constant explanations neces- sary, and consumes more time the one way than the other. Mr.,Cockburn. We object to the indictment being read, because it is calculated to prejudice the prisoner. Our state- ment is, that it contains charges, the reading of which cannot fail to operate against him, and that these charges make no legal part of the libel. Lord Meadowbank. I am against novelties ; I am against interfering with the discretion of the Court. The indictment was then read as follows : William Burke and Helen M'Dougal, both present prison- ers in the tolbooth of Edinburgh, you are indicted and accus- ed at the instance of Sir WILLIAM RAE of St. Catharine's, Bart, his Majesty's Advocate for his Majesty's interest : That al- beit, by the laws of this and of every other well governed realm, MURDER, is a crime of an heinous nature and severely punishable : Yet true it is and of verity, that you the said William Burke and Helen M'Dougal are both and each, or one or other of you, guilty of the said crime, actor or actors, or art and part : In so far as, on one or other of the days between the 7th and 16th days of April 1828, or on one or other of the days of that month, or of March immediately preceding, or of May immediately following, within the house in Gibb's Close, Canon- gate, Edinburgh, then and now or lately in the occupation of Constantine Burke, then and now or lately scavenger in the employment of the Edinburgh Police Establishment, you the said William Burke did, wickedly and feloniously, place or lay your body or person, or part thereof, over or upon the breast or person and face of Mary Paterson or Mitchell, then or re- cently before that time, or formerly preceding, with Isabella Burnet or Worthington, then and now or lately residing in Leith Street, in or near Edinburgh, when she, the said Mary Paterson or Mitchell was lying in the said house, in a state of intoxication, did ? by the pressure thereof, and by covering her AND HELEN Al'DOUGAL. 13 mouth and nose with your body or person, and forcibly com- pressing her throat with your hands, and forcibly keeping her down, notwithstanding her resistance, or in some other way to the Prosecutor unknown, preventing her from breathing, suffocate or strangle her ; and the said Mary Paterson or Mitchell was thus, by the said means or part thereof, or by some other means or violence, the particulars of which are to the Prosecutor unknown, wickedly bereaved of life by you the said William Burke ; and this you did with the wicked aforethought intent of disposing of, or selling the body of the said Mary Paterson or Mitchell, when so mur- dered, to a physician or surgeon, or some person in the em- ployment of a physician or surgeon, as a subject for dissec- tion, or with some other wicked and felonious intent to the Prosecutor unknown. (2.) Further, on one or other of the days, between the 5th and 26th days of October 1828, or on one or other of the days of that month, or of September im- mediately preceding, or of November immediately follow- ing, within the house situated in Tanner's Close, Ports- burgh, or Wester Portsburgh, in or near Edinburgh, then and now or lately in the occupation of William Haire or Hare, then and now or lately labourer, you the said William Burke did wickedly and feloniously attack and assault James Wilson, commonly called or known by the name of Daft Jamie, then or lately residing in the house of James Dow- nie, then and now or lately porter, and then and now or lately residing in Stevenlaw's Close, High Street, Edin- burgh, and did leap and throw yourself upon him, when the said James Wilson was lying in the said house, and he hav- ing sprung up, you did struggle with him, and did bring him to the ground, and you did place or lay your body or person, or part thereof, over or upon the person or body and face of the said James Wilson, and did by the pressure thereof, and by covering his mouth and nose with your person or body, and forcibly keeping him down, and compressing his mouth, nose, and throat, notwithstanding every resistance on his part, and thereby, or in some other manner to the Prosecu- tor unknown, preventing him from breathing, suffocate or strangle him ; and the said James Wilson was thus, by the said means, or part of them, or by some other means or vio- lence, the particulars of which are to the Prosecutor un- known, wickedly bereaved of life and murdered by you the said William Burke ; and this you did with the wicked afore- thought and intent of disposing of or selling the body of the said James Wilson, when so nvurdered, to a physician or sur- geon, or to some person in the employment of a physician or 14? TRIAL OF WILLIAM JBURKE surgeon, as a subject for dissection, or with some other wicked and felonious intent or purpose, to the Prosecutor unknown. (3.) Further, on Friday the 31st day of October 1828, or on one or other of the days of that month, or of September imme- diately preceding, or of November immediately following, within the house then or lately occupied by you the said William Burke, situated in that street of Portsburgh, or West- er Portsburgh, in or near Edinburgh, which runs from the Grassmarket of Edinburgh to Main Point, in or near Edin- burgh, and on the north side of the said street, and having an access thereto by a trance or passage, entering from the street last above libelled, and having also an entrance from a court or back court on the north thereof, the name of which is to the Prosecutor unknown, you the said William Burke and Helen M'Dougal, did both and each, or one or other of you, wickedly and feloniously place or lay your bodies or persons, or part thereof, on the body or person or part thereof of one or other of you, over or upon the per- son or body and face of Madgy or Margery or Mary M'Go- iiegal, or Duffie, or Campbell, or Docherty, then or late- ly residing in the house of Roderick Stewart or Stuart, then and now or lately labourer, and then and now or lately re- siding in the Pleasance, in or near Edinburgh ; when she, the said Madgy or Margery, or Mary M'Gonegal, or Duffie, or Campbell, or Docherty, was lying on the ground, and did, by the pressure thereof, and by covering her mouth and the rest of her face with your bodies or persons, or the body or person of one or other of you, and by grasping her by the throat, and keeping her mouth and nostrils shut, with your hands, and thereby, or in some other way to the Prosecutor unknown, preventing her from breathing, suffocate or strangle her; and the said Madgy or Margery, or Mary M'Gonegal, or Duffie, or Campbell, or Docherty, was thus, by the said means, or part thereof, or by some other means or violence, the particulars of which are to the Prosecutor unknown, wickedly bereaved of life, and murdered by you the said William Burke, and you the said Helen M'Dougal, or one or other of you ; and thus you, both and each, or one or other of you, did, with the wicked aforethought intent of disposing of or selling the body of the said Madgy or Margery or Mary M'Gonegal, or Duffie, or Campbell, or Docherty, when so murdered, to a physician or surgeon, or to some person in the employment of a physi- cian or surgeon, as a subject for dissection, or with some other wicked and felonious intent or purpose to the Prosecutor un- known : And you, the said William Burke, having been taken before George Tait, Esq. sheriff-substitute of the shire of AND HELEN M C DOUGAL. 15 Edinburgh, you did in his presence, at Edinburgh, emit and subscribe five several declarations of the dates respectively following, viz. : The 3d, 10th, 19th, and 29th days of No- vember, and 4th day of December 1828: And you, the said Helen M'Dougal, having been taken before the said sheriff- substitute, you did in his presence, at Edinburgh, emit two several declarations, one upon the 3d and another upon the 18th days of November 1828, which declarations were each of them respectively subscribed in your presence by the said sheriff-substitute, you having declared you could not write : which declarations being to be used in evidence against each of you by whom the same were respectively emitted ; as also the skirt of a gown ; as also a petticoat ; as also a brass snuff-box, and a snuff-spoon, a black coat, a black waistcoat, a pair of moleskin trowsers, and a cotton handkerchief or neck- cloth, to all of which sealed labels are now attached, being to be used in evidence against you, the said William Burke ; as also a coarse linen sheet, a coarse pillow-case, a dark printed cotton gown, a red-stripped cotton bed-gown, to which a seal- ed label is now attached ; as also a wooden box ; as also a plan, entitled " Plan of Houses in Wester Portsburgh and places adjacent," and bearing to be dated Edinburgh, 20th November 1828, and to be signed by James Braidwood, 22, Society, being all to be used in evidence agains.t both and each of you, the said William Burke and Helen M'Dougal, at your trial, will for that purpose be in due time lodged in the hands of the clerk of the High Court of Justiciary, be- fore which you are about to be tried, that you may have an opportunity of seeing the same. All which, or part thereof, being found proven by the verdict of an assize, or admitted by the respective judicial confessions of you the said William Burke and Helen M'Dougal, before the Lord Justice-General, the Lord Justice-Clerk, and the Lords Commissioners of Jus- ticiary, you, the said William Burke and Helen M'Dougal, ought to be punished with the pains of law, to deter others from committing the like crimes in all time coming. A. WOOD, A.D. LIST OF WITNESSES. 1 George Tait, Esquire, sheriff-substitute of the shire of E- dinburgh. 2 Archibald Scott, procurator-fiscal of said shire. 3 Richard John Moxey, now or lately clerk in the sheriff- clerk's office, Edinburgh. TRIAL OF WILLIAM BURKE 4 Archibald M 'Lucas, now or lately clerk in the sheriff- clerk's office, Edinburgh. 5 Janet Brown, now or lately servant to, and residing with, Isabella Burnet or Worthington, now or lately residing in Leith Street, in or near Edinburgh. 6 The foresaid Isabella Burnet or Worthington. 7 Elizabeth Graham or Burke, wife of Constantine Burke, now or lately scavenger in the employment of the Edin- burgh police, and now or lately residing in Gibb's close, Canongate, Edinburgh. 8 The foresaid Constantine Burke. 9 Jean Anderson or Sutherland, wife of George Sutherland, now or lately silversmith, and now or lately residing in Middleton's Entry, Potter-row, Edinburgh. 10 William Haire or Hare, present prisoner in the tolbooth of Edinburgh. 11 Margaret Laird or Haire or Hare, wife of the foresaid William Haire or Hare, and present prisoner in the tolbooth of Edinburgh. 12 Jean M'Donald or Coghill, wife of Daniel Coghill, now or lately shoemaker, and now or lately residing in South St. James's street, in or near Edinburgh. 13 Margaret M'Gregor, now or lately servant to, and resid- ing with, John Clark, now or lately baker, and now or lately residing in Rose street, in or near Edinburgh. 14 Richard Burke, son of, and now or lately residing with, the foresaid Constantine Burke. 15 William Burke, son of, and now or lately residing with, the foresaid Constantine Burke. 16 Janet Wilson or Downie, wife of James Downie, now or lately porter, and now or lately residing in Stevenlaw's close, High street, Edinburgh. 17 Mary Downie, daughter of, and now or lately residing with, the foresaid James Downie. 18 William Cunningham, now or lately scavenger in the em- ployment of the Edinburgh police, and now or lately re- siding in Fairley's Entry, Cowgate, Edinburgh. 19 George Barclay, now or lately tobacconist in North Col- lege street, in or near Edinburgh. 20 David Dalziell, now or lately copperplate printer, and now or lately residing with his father, George Dalziell, now or lately painter, and now or lately residing in North FowKV close, High street, Edinburgh. 21 Margaret Newbigging or Dalziell, wife of the foresaid Da- vid Dalziell. AND HELEN M'DOUGAL. 17 22 Joseph M'Lean, now or lately tinsmith, and now or lately residing in CouFs close, Canongate, Edinburgh. 23 Andrew Farquharson, now or lately sheriff-officer in Edin- burgh. 24 George M'Farlane, now or lately porter, and now or lately residing in Paterson's court, Lawnmarket, Edinburgh. 25 John Brogan, now or lately in the employment of John Vallence, now or lately carter, and now or lately resid- ing in Semple street, near Edinburgh. 26 Janet Lawrie or Law, wife of Robert Law, now or lately currier, and now or lately residing in Portsburgh or Wester Portsburgh, in or near Edinburgh. 27 Ann Black, or Connaway, or Conway, wife of John Con- naway or Conway, now or lately labourer, and now or lately residing in Portsburgh or Wester Portsburgh aforesaid. 28 The foresaid John Connaway or Conway. 29 William Noble, now or lately apprentice to David Rymer, now or lately grocer and spirit-dealer in Portsburgh or Wester Portsburgh aforesaid. 30 James Gray, now or lately labourer, and now or lately re- siding with Henry M 'Donald, now or lately dealer in coals, and now or lately residing in the Grassmarket, Edinburgh. 31 Ann M'Dougall or Gray, wife of the foresaid James Gray. 32 Hugh Alston, now or lately grocer, and now or lately residing in Portsburgh or Wester Portsburgh aforesaid. 33 Elizabeth Paterson, daughter of, and now or lately resid- ing with, Isabella Smith or Paterson, now or lately re- siding in Portsburgh or Wester Portsburgh aforesaid. 34 The foresaid Isabella Smith or Paterson. 35 John M'Culloch, now or lately porter, and now or lately residing in Alison's close, Cowgate, Edinburgh. 36 John Fisher, now or lately one of the criminal officers of the Edinburgh police establishment. 37 John Findlay, now or lately one of the patrole of the Edinburgh police establishment. 38 James Paterson, now or lately lieutenant of the Edin- burgh police establishment. 39 James M'Nicoll, now or lately one of the Serjeants of the Edinburgh police establishment. 40 Mary Stewart or Stuart, wife of Roderick Stewart or Stu- art, now or lately labourer, and now or lately residing in the Pleasance, near Edinburgh. 41 The foresaid Roderick Stewart or Stuart. 42 Charles M'Lauchlan, now or lately shoemaker, and now D 18 TRIAL OF WILLIAM BUIIKE or lately residing with the foresaid Roderick Stewart or Stuart. 43 Elizabeth Main, now or lately servant to the foresaid Wil- liam Haire or Hare. 44 Robert Knox, M. D. lecturer on Anatomy, now or lately residing in Newington place, near Edinburgh. 45 David Paterson, now or lately keeper of the Museum be- longing to the foresaid Dr. Robert Knox, and now or lately residing in Portsburgh, or Wester Portsburgh aforesaid, with his mother, the foresaid Isabella Smith or Paterson. 46 Thomas Wharton Jones, now or lately surgeon, and now or lately residing in West Circus place, in or near Edin- burgh, with his mother, Margaret Cockburn or Jones. 47 William Ferguson, now or lately surgeon, and now or lately residing in Charles street, in or near Edinburgh, with his brother, John Ferguson, now or lately writer. 48 Alexander Miller, now or lately surgeon, and now or lately residing in the lodgings of Elizabeth Anderson or Mont- gomery, now or lately residing in Clerk street, in or near Edinburgh. 49 Robert Christison, M. D. now or lately Professor of Medi- cal Jurisprudence in the University of Edinburgh. 50 William Pulteny Alison, M. D. now or lately Professor of the Theory of Physic in the University of Edinburgh. 51 William Newbigging, now or lately surgeon, and now or lately residing in St. Andrew's square, Edinburgh. 52 Alexander Black, now or lately surgeon to the Edinburgh police establishment. 53 James Braidwood, now or lately builder, and master of fire-engines on the Edinburgh police establishment. 54 Alexander M'Lean, now or lately sheriff-officer in Edin- burgh. 55 James Evans, student of medicine, now or lately residing with Mr. James Moir, surgeon, residing in Tiviot-row, in or near Edinburgh. A. WOOD, A. D. DEAN OF FACULTY. We have given in separate defences, which may as well be read now, beginning with the defences for the male prisoner. The defences for Burke was then read as follows : The pannel submits that he is not bound to plead to, or to be tried upon a libel, which not only charges him with three unconnected murders, committed each at a different time. AND HELEN MDOUGAL. 19 and at a different place, but also combines his trial with that of another pannel, who is not even alleged to have had any concern with two of the offences of which he is accused. Such an accumulation of offences and pannels is contrary to the general and the better practice of the Court ; it is in- consistent with right principle, and indeed, so far as the pannel can discover, is altogether unprecedented ; it is to- tally unnecessary for the ends of public justice, and greatly distracts and prejudices the accused in their defence. It is therefore submitted that the libel is completely vitiated by this accumulation, and cannot be maintained as containing a proper criminal charge. On the merits of the case, the pannel has only to state that he is not guilty, and that he rests his defence on a denial of the facts set forth in the libel. The defences for Helen M'Dougal were next read as fol- lows : If it shall be decided that the prisoner is obliged to answer to this indictment at all, her answer to it is, that she is not guilty, and that the Prosecutor cannot prove the facts on which his charge rests. But she humbly submits that she is not bound to plead to it. She is accused of one murder com- mitted in October 1828, in a house in Portsburgh, and of no other offence. Yet she is placed in an indictment along with a different person, who is accused of other two murders, each of them committed at a different time, and at a different place, it not being alleged that she had any connection with either of these crimes. This accumulation of pannels and of offences is not necessary for public justice, and exposes the accused to intolerable prejudice, and is f not warranted, so far as can be ascertained, even by a single precedent. Mr. PATRICK ROBERTSON then addressed the Court in sup- port of the defences. In this indictment there were two prisoners named, but these two prisoners did not appear on the face of it to have any connection with each other. The major proposition contained a simple charge of murder, without specifying any aggravation. In the minor proposi- tion, however, there were three distinct and totally unconnected charges of murder. The first was against Burke alone, and was charged as having been committed in April last, in a house in the Canongate. But it was not stated thai he had any ac- complices. He was the sole person charged with that offence. It appeared, indeed, from the description of the crime, that he was charged " with the wicked, aforethought purpose and intent, of disposing of and selling the body, when murdered, as a subject for dissection, or with some other wicked and fe- 20 TRIAL OF WILLIAM BURKE lonious purpose and intent to the Prosecutor unknown." But, while, on the one hand, there was no aggravation laid in the major proposition ; yet on the other the Prosecutor did not con- fine himself to one species of intent, but libelled two the intent to sell the body to the surgeons, and some other sort of vague undefined species of intent to the Prosecutor himself unknown. The second article in the indictment charged another mur- der, alleged to have been committed in the month of Octo- ber, in a place called Tanner's Close, in Wester Portsburgh. In this charge also William Burke is the only person ac- cused of that offence, and the intent laid is the same as in the former instance. Then there was a charge of a third mur- der, committed at a different place and time, viz. at a house in Portsburgh on the 31st October; in which charge both William Burke and Helen M'Dougal were included : and, after describing the offence, the intent libelled is the same as in the two former cases. Thus we had three murders charged against the prisoners ; two against Burke alone, and one against Burke in conjunction with M'Dougal ; all of which were committed at different times and in different places, with- out any connection whatever between them : and these charges were laid without any aggravation. Then five different declara- tions by Burke, and two by M'Dougal, were also libelled on, together with eight articles to be adduced as evidence against, the former, and six against both; and in addition to all this, they were served with a list of fifty-five witnesses by whom these dif- ferent and totally unconnected charges were to be proved. Now the question was, whether this charge, involving such an accumulation of unconnected offences, was consistent with our practice, with the humane principles of our law, and with that sound and proper discretion which the Court was not only en- titled, but bound to exercise. But the first and most materi- al point was, whether the prisoners would suffer prejudice by the mode in which the libel had been framed ; for if that could be made out, it would justify their Lordships in the exercise of the discretion with which they were entrusted, in separating the different charges, or in selecting one prisoner, and postpon- ing another, according to the circumstances of the case. The question then was, whether the prisoners would suffer prejudice in going to trial with the libel as it now stood. And, in con- sidering this, it would be observed that it was not charged that there was any natural connection between the crimes com- mitted. There was certainly none in law ; and with the exception of the mode of the murder and the intent, there was not the slightest pretence for saying there was any con- nection between them. But the intent was not laid abso- AN T L> HELEN M'DOUGAL. 21 lately and peremptorily. It was conditional : " Either you committed these acts with the wicked, aforethought purpose and intent of selling the bodies to the surgeons for dissection, or with some other purpose or intent to the Prosecutor un- known." This indeed would compel the Prosecutor to prove that the murder was committed for the purpose of handing over the bodies to dissection ; but he might also bring in under it a very different purpose or object, as, for example, that it was done for the purpose of robbery, or to gratify private revenge. In the major proposition, however, there was no aggravation ; and it was not said that there had been any conspiracy, that these murders were part of a system ; they were laid as three unconnected offences, committed at different times and at different places. Now he prayed their Lordships to keep in mind that murder was not like any of the other offences which usually occurred in the practice of the Supreme Crimi- nal Court ; it was one which, in every case, when brought home to a pannel, was visited with the highest punishment of the law ; and therefore it differed from all the offences to which it was sometimes likened, and required greater caution on the part of those by whom it was to be tried. As applicable to the case of Burke, however, three murders were charged; and this charge was calculated in the most serious degree to preju- dice him. Each specific offence, it might be said, would require to be supported by its own specific evidence : but it was im- possible to find any jury so dispassionate as not to borrow some light from the one to enable them to decide on the other; it was impossible for the jury to separate the evi- dence in one case from that in another ; it was impossible that one murder not proved could be separated from any light thrown upon it by another not proved ; nay, though neither the one nor the other might be proved, it might still be held, that upon the whole, from the massing or blending of unconnected acts, enough was made out to warrant a conviction. And all this was aggravated by the prejudice arising from the manner in which the alleged murders were said to have been committed, and in regard to which so strong a degree of excitement ex- isted in the public mind. Then observe the oppression in the preparation of the trial ; observe the situation in which the pannels were placed. Three murders were charged, with a list of fifty-five witnesses ; besides seven declarations, five by the one, and two by the other. One set, it might be said, was against one prisoner, and the other against the other ; but it was impossible so to separate, or to analyse the evi- dence as not to admit against the one evidence which was calculated to affect the other ; and by thus mixing up and 22 TRIAL OF WILLIAM BURKE massing together the whole into an unnecessary accumula- tion of crime, to come to the same conclusion in regard to both. Look to the case of Helen M'Dougal, and it will be seen the prejudice must operate still more strongly against her. She is accused of only one crime, and it is not said that she had any connection with the others. But this charge of murder, committed in the latter end of October, is brought to trial, combined with two others committed, one in April, six months previously, and the other in the beginning of October. Where is this to stop ? If the Prosecutor is allowed to proceed in this way, may he not on the same principle combine ten murders against ten prisoners, accused of ten different offences, committed in as many different counties ? He submitted that there must be some limitation ; and the question was, whether the Court could sustain the present charge by which one indi- vidual, accused of one offence, is mixed up with another, ac- cused of two, with which she is not alleged to have had any con- cern. Imagine this case. At the end of the indictment, eight articles were specified against Burke, and six more against Burke and M'Dougal conjointly. Take the first the skirt of a gown and suppose it proved against Burke alone. It could not be adduced as evidence against Helen M'Dougal. But suppose it was traced into her possession, and that a witness was called to prove that it belonged to Mary Paterson or Mitchell. This would be conclusive as to M'DougaFs connection with Burke. But it might be said that the Judge would tell the Jury to strike this out of their notes. That was an easy opera- tion ; but could they strike it out of their minds as easily as out of their notes ? Then in what circumstances would Helen M'Dougal be placed ? An article not libelled against her would be checkmate to her defence. She would be taken by surprise, she would be thrown off her guard ; and although the gown had come fairly and honestly into her possession she could pro- duce no evidence to instruct the fact. He put this as an il- lustration. So far as the female prisoner was concerned it would be fatal. But was this a legal proceeding ? If there be a prejudice ex- isting, the prisoner is entitled to the fairest possible defence. The more atrocious the offence, the more guarded and cau- tious ought to be the modes of procedure. So far, however, as they could discover from the records of the Court, this was the first case in which it had been attempted to charge three murders in the same indictment. There had been several in- stances of three persons slain at the same time, as in the Aber- deen riots, by a discharge of musketry, and in the case where a whole family was poisoned : these, however, as Mr. Hume AND HKI.KN M'DOUGAL. 23 observed, were all parts of the same foul and atrocious offence. But there was no example, in the history of the Court, of combining three unconnected offences against one person ; far less of combining three against one person who was not alleg- ed to have any connection with two of them, and was only implicated in a third, which had no manner of connection with those which preceded it. Sir George Mackenzie, who would not be suspected of any partiality to the prisoner, laid down theprinciple most clearly, that different parties ought not to be thus combined in an indictment. " A person accused," says he, " was not obliged to answer of old but for one crime in " one day, except where there were several pursuers, Quoniam " Attachiamentd) cap. 65. by which, accumulation of crimes was " expressly unlawful, sed hodie aliter obtinet, for now there is " nothing more ordinar nor to see five or six persons in one '' summonds or indictment; and to see one accuser pursue seve- " ral summondses; and yet seeing crimes are of so great conse- " quence to the defender, and are of so great intricacy, it ap- ic pears most unreasonable that a defender should be burthened " with more than one defence at once ; and it appears that ac- " cumulation of crimes is intended, either to laese the fame of " the defender, or to distract him in his defence." Title 19, 7- Here the principle was brought out in the clearest manner that salutary principle which says that no man ought to be called upon to answer to more than one crime in one libel ; since the accumulation of crimes was calculated " either to laese " the fame of the prisoner, or to distract him in his defence." The learned Counsel then referred to the work of Mr. Baron Hume. That learned author treats of the accumulation of crimes under different heads: first, of thosewhich are of onename and species, and of one class and general description ; secondly, of those criminal acts, though of different kinds and appellations, have a natural relation and dependence ; and, thirdly, of that sort of cumulatio actionum, which consists in the charging of several persons in the same libel with separate and uncon- nected crimes. The first of these, he argued, had no relation to the present case, because it did not include murder. AH the cases referred to were cases of housebreaking and theft ; and though the former was a capital offence, yet it was a very dif- ferent one from murder. No case of the latter was indeed quoted. The author treated merely of connected crimes, as robbery and murder. But no injury was done by such ac- cumulation. They were parts of the same foul and atrocious proceeding, and they had a natural and necessary depend- ence. But in the present case there was no natural depend- ence, and not even an allegation that the prisoners were con- nected. 24! TIIIAL OF WILLIAM BURKE He then proceeded to the consideration of heterogenous charges, as of murder and of theft. Some of these, he said, were not cases to be followed at the present day : and he in- stanced that of Walter Buchanan, who was accused of ten dif- ferent crimes in one libel ; namely, fire-raising, attempts at fire- raising, attempts to poison, theft, reset of theft, the harbouring, out-hounding, and maintaining of thieves and robbers, sorning and levying black mail, and killing and eating of other people's sheep. Here, however, the Lords restricted the trial to the more special charges. He now came to the principle, and mentioned a case in 1784, when the Lord Advocate did depart from se- veral of the charges. In regard to accumulation of parties, Mr. Hume put a case of several persons being called to an- swer in one libel for the same fact ; but then, observe the re- medy. " On any occasion when they see cause, especially if " it appear that the Prosecutor meant to lay the pannels under " this disadvantage (he begged to disclaim any insinuation that " such was the intention of the Prosecutor in the present in- " stance,) the Court may and will separate the trials of the se- " veral culprits, and send those to an assize, in the first place, " by themselves, who are meant to be called as witnesses for " the others," vol. ii. p. 170. The learned Counsel then proceeded to the third sort of cumulatio actionum, that of charging several persons in the same libel with separate and unconnected offences, and contended very ably that the case before the Court fell under this description. In conclusion, he referred to the English practice as illus- trative of the principle for which he had been contending, and referred to a decision of Lord Ellenborough, as reported in Campbell, vol. ii. p. 131, and also to the authority of Chitty, vol. i. p. 252. By the law of England, two felonies may be combined in one charge against two separate prisoners ; but it is usual for the Judge, in his discretion, to call upon the prose- cutor to make his election, and to proceed with a specific charge against one individual. In point of law they may be combined, but the judges in their discretion separate them ; and for this reason among others, that the combination would prejudice prisoners in their challenge of the jury. The LOUD ADVOCATE replied at some length. After compli- menting the learned counsel who had just concluded, on the able manner in which he had opened the objections submitted to the consideration of the Court, he stated that he thought them ill-founded. His learned friend mixed up two objections al- together different. His first objection was to bringing two pri- soners to trial in the same indictment, and his second to charging three different crimes in that indictment. He would deal very 3 AND HELEN M'DOUGAL. 25 iliortly with the first. The woman was charged as having been concerned with the man in one of the three murders. And this was sanctioned by the law of the land. He put her in the indictment that she might not be prejudiced. If she had been put into a separate indictment, the public would have known the whole evidence before she had been put upon her trial, and the prisoner would have had the best possible reason to complain. This would have been the case had he first brought the man to trial, and afterwards the woman, ad- ducing against her the same, or nearly the same evidence, which had previously been adduced against the man. It was to obviate this, and to prevent her from being prejudiced, that he had put her in the same indictment. " God forbid," said his Lordship, " that any person holding the situation I do, should do any thing to prejudice a prisoner on his trial." The very contrary motive had guided him ; but if he proceeded not against the woman to day, he would ten days hence, when she could not insist on that which she now says will prejudice her. Nor, in a case of this sort, would he be restrained from doing his duty to the country by any consideration founded upon what were called the interests of science. It was enough for him that a great crime had been committed ; a crime vn- heard of before in any civilized country : that the public mind had in consequence become strongly agitated ; and that the duty he owed to the country left him no alternative. He was determined therefore to probe and sift the whole matter to the bottom ; nothing should deter him from doing so ; and he repeated, that if he was compelled to desert the diet against this woman now, he would infallibly bring "her to trial ten days hence. Then she would find whether she had been prejudiced by the whole evidence in this case having gone abroad to the world. The libel charged three separate acts ; and in the major proposition the crime specified was murder without any ag- gravation. These murders were detached, as having taken place within the last six months ; but they were all committed in Edinburgh, and ail were charged as having been perpetrated with the same intent, which however is no aggravation. Mur- der, indeed, could scarcely admit of aggravation. When a prosecutor libels a positive intent, he is tied down to that, and there is no alternative. These cases were all of the same descrip- tion all murders, and all committed with the same intent. He admitted, that looking to the proceedings of the Criminal Court, it might be impossible to find a case of three murders combin- ed in one indictment ; but the present was a case unprecedent- ed in the annals of this or of any other civilized coun- -O TRIAL OF WILLIAM BURKE try. There were numerous examples, however, where dif- ferent charges were combined in the same libel. The pass- age quoted from Sir George Mackenzie did not apply to the case before the Court. It referred to a case of a na- ture totally different. He then quoted Hume II. 166, arid maintained, upon his authority, that the crimes charged be- ing all of the same name and species, might properly be in- cluded in the same indictment. It would indeed be dread- ful if a prisoner, after having committed three murders, could only be tried for one of them. Mr. Hume referred to the case of James Inglis, tried upon three charges of horse-stealing, each of which, if proved, involved a capital punishment. Now, would not every argument which had been employed against the present libel apply to such a charge? Again, two acts of highway robbery were charged in the same indictment, any one of which would have been sufficient, if proved, to lead to a capital conviction. ' The whole tenor of our practice, indeed, confirmed this mode of procedure, and, if the contrary obtained if charges of the same nature and description were put in separate indictments, prisoners would be exposed to the intolerable hardship of undergoing trial day after day ; a hardship which he conceived would be incomparably greater than any that could possibly arise from the practice now com- plained of. He then referred to the case of Nairne and Ogil- vie. Here it had been objected that there was a cumulatio actionum, but the objection had been repelled. His Lordship then cited the case of James Morton tried at the Glasgow Cir- cuit in 1823 on four separate acts; of Donaldson Buchanan also tried there for stoutlirief, housebreaking and theft (all separate acts) ; of Beaumont, tried at Aberdeen in 1826, where six acts of housebreaking were charged ; and of Gillespie, tried at Aber- deen in 1827, upon no less than nine separate acts of forgery. His Lordship then quoted the' case of Surridge and Dempster, indicted for two separate acts of murder, committed indeed at the short interval of an hour, but still in all respects com- pletely separate acts. Upon the strength of these consecutive authorities, all of which went to support the principle for which he contended, his Lordship submitted that the objection ought to be repelled. The DEAN OF FACULTY, in 'reply to the Lord Advocate, argued powerfully in support of the views which had been opened by Mr. Robertson. His Right Honourable and Learned Friend (the Lord Advocate) might rely upon it that, on the part of the prisoner's Counsel, no doubt whatever was entertained of the perfect propriety of the motive by which his Lordship had been actuated in framing the present indictment ; they AND HELEN M'l)OUGAL. 27 were convinced that he had prepared and brought forward the case in the manner which he conceived least likely to preju- dice the prisoners or to distract them in their defence. But, on the other hand, he could with equal truth and sincerity as- sure his Lordship, that the objection now raised had been taken from a firm conviction that the sustaining of it was ne- cessary for the safety of the law, and indispensable to the ends of justice. It had been said that the decisions of the Court ought to be adhered to, that its practice ought not to be infringed upon ; and yet it was admitted that the present was the first case which had ever occurred of three separate acts of murder being combined in the same indictment. In this situation, then, were they not justified in submitting to the Court the objection which had been taken upon the ground of this un- precedented combination ? The Learned Lord had intimated an intention to desert the diet pro loco et tern/pore against the pannel M'Dougal. But the question still remained whether the interests of the male prisoner would not be dreadfully pre- judiced in his defence, if put upon his trial for three separate acts of murder, committed at different times, and in different places. Now he contended that the present form of the in- dictment was adopted to effect an illegitimate object : it was calculated to lead to great injustice to the prisoner. What the* Prosecutor insisted on passing to a Jury was an indict- ment charging three distinct murders : he averred that there were separate and unconnected acts of this crime ; and he as- sumed that there was sufficient proof to bring them home to the prisoner. But every man, whatever the number of charges against him might be, was to be held and presumed to be innocent till the contrary was proved, and a conviction obtained against himself. There might, or there might not be sufficient proof to convict him; but he contended for the benefit of the ordinary presumption. " Give us," said the Learned Counsel, " the benefit of this presumption, to which we are entitled, and then let us see how the case will stand." In the indictment before their Lordships three murders were charged ; murders committed at different times; murders of different persons, totally unconnected and living in different places ; and the last of these was stated to have been done in conjunction with a third person who had no connec- tion with the other two. But if the Public Prosecutor were in a situation to prove one of these murders, it would infer the death of the pannel. Then for what end or purpose of public justiee were three murders crammed into one indictment ? If the Prosecutor was unable to prove any one of them, there was no necessity surely for putting it into this indictment. Sup- TRIAL OF WILLIAM BU11KE pose evidence were brought to prove the first, but totally fail- ed, and the second, but also failed, or at least left them in such doubt that a verdict of not guilty or not proven would have been returned if they had been tried separately ; nobody would maintain that a false or improbable charge might not become a make-weight in the evidence to prove a separate and distinct murder. The prisoner might take his trial on a combi- nation of such charges, but unless your Lordship interfered ex 'parte judicis, the result would be what he described. The prejudice arose from this tolls quails accession, not proved, but assumed ; and from the prejudice thus credited the prisoner might be convicted. They could not lay the present indictment before a Jury without necessarily prejudicing that Jury ; and yet the Lord Advocate came forward and alleged that he thought the whole objection frivolous and untenable, saying that it was an attempt to smother the indictment altogether ; that is, he called an objection to an indictment, which did not contain a specific allegation of a specific crime, but a congeries of offences huddled together and charged in cum- ulo, an attempt to smother it ! How smothered ? If the indictment was improperly framed, if two or three charges were crammed into it instead of one, the prisoner was entitled to have it smothered. He was entitled to a fair trial, and if the libel was so constructed that this could not be afforded him, he had a right to have it smothered. Every thing relative to a specific charge their Lordships would re- ceive, if brought forward in a competent form ; but the point previously adverted to still returned Were they to receive evidence in regard to two charges which might not be proved, and which yet might affect the minds of the Jury in regard to the third and lead to a conviction ? The Learned Lord indeed wiid, that there was only one sort of evidence, and that the crime had been committed in the same place. But the place was not the same ; in fact, the loci were as distinct as if the one crime.had been committed in the Canongate of Edinburgh and the other in the remotest corner of Scotland. In popular language and popular conceptions, they might be held and represented as the same, but this would never do in matters of law. They must have the locus strictly libelled. Nor was the time the same. The first was committed at the distance of six months from the second : the first took place in April, another took place in the beginning of October, and a third occurred in the end of October. Now, might not the prisoner prove an alibi in regard to one of these crimes though not in regard to the other? But, further, the acts were different. It was in vain to say that all the murders were of the aame genus, for AX HELEN M'DOUGAL. 29 this might be said of all the murders that ever had been or ever would be committed ; and on the face of the indict- ment they were all different. In the major proposition no ag-, gravation was libelled, but it was said that all these murders had been committed with the intent of disposing of the dead bodies to the Surgeons, or with some other purpose or intent to the Prosecutor unknown. Did the Learned Lord mean to say that he would fail if he did not prove this intent ? But that purpose was a separate crime, as was sufficiently manifest from the late case (among others) of Bradwell at Glasgow. It could not, therefore, be maintained that he would fail by not proving the intent by not proving a diffeient crime from that libelled. It was perfectly plain that it was competent to prove the intent, but the not proving it could not in the least degree affect the libel. The crime consisted in the wil- ful murder ; and unless the motive amounted to a justification, or an alleviation which reduced it to culpable homicide, the intent would be inferred from the fact, and the highest pu- nishment of the law would follow a conviction. The evil of an indictment so framed as the present was to produce an il- legitimate effect by this combination of intention or motive with the crime charged. The intent charged might have been laid as a separate offence ; but had this been done we should now have been on a different objection, namely the compe- tency of such a charge. To these principles in the abstract, no exception could be taken. Now, the Court would consi- der the situation in which the pannel was placed. He had been put upon his defence fifteen days after his examination ; five declarations emitted by him were libelled on ; and most manifestly there did exist great prejudice against him. He did not say that this would be a sufficient reason for post- poning the trial, but it was a sufficient reason for the Court taking care that he suffered no injury in his defence. Another matter in which the prisoner was prejudiced, by lumping to- gether separate charges in the same indictment, was in his chal- lenges of the Jurymen. It was evident that the prisoner had an interest that way. He did not know who the Jurymen were to be, and of course could not mean to say that there was any danger of an improper person being balloted ; but he had a clear right in the abstract a right of which he ought not to be deprived. If he had been tried on separate indict- ments he would have had fifteen challenges, whereas by the combination of the charges in the same indictment he had only five. Now there might be Jurymen liable to challenge in one case and not in another, just as one witness might be perfect- ly unexceptionable in one case and liable to the most serious l 30 TllIAL OF WILLIAM BURKE and fatal objections in another. He contended, therefore, that in every view the principle was in their favour, as well as the justice and imperious necessity of the case. The Learned Gentleman then referred to the authorities. He began by commenting on the passage which had been quoted from Sir George Mackenzie ; which, he contended, the Lord Advocate had misunderstood, as it was quite evident, that George Mackenzie used the word " summonds" as syno- nymous with " indictment," since an "accumulation of crimes," the subject treated of, could not be predicated of a summons in the common acceptation of that term. And the doctrine laid down by this author was that an " accumulation of crimes is intended, either to loese the fame of the defender, or to dis- tract him in his defence." Now what did the Lord Advocate say in answer to this ? He referred to a passage in Mr. Ba- ron Hume's work where that learned person says, that " the competency has never been disputed of charging in one libel any number of criminal acts, if they are all of one nature and species, or even of one class and general description." But it was evident that the offences of which Mr. Hume spoke were of a different description from murder ; for he expressly added the qualification, " so as to adhere in this point of view, and stamp a character on the parinel as one who is an habitual and irreclaimable offender in this sort," (vol. ii. p. 166.) And ac- cordingly the instances which he gave were of the crimes of theft and house-breaking ; crimes which were susceptible of being aggravated by habit and repute; and of which the pu- nishment might be restricted. But murder % admitted of no such aggravation, and never was restricted. Hear, however, what Mr. Hume said in reference to those cases : " The Court, whenever they find that the immediate trial of such mani- fold changes is likely to prove oppressive, either to the wit- nesses, the Jury, or themselves ; and still more, if they see cause to believe that it may embarrass the pannel in his defence, or beget prejudices against him in the minds of the Jury ; in any of these cases, they have it certainly in their power to divide or parcel out the libel, and proceed in the first instance to the trial of as many of the articles as may fitly be dispatched in a single diet, &c." (vol. ii. p. 168.) The cases which occurred in 1696 might, however, be referred to in support of a contrary doctrine ; but " if they are, I answer" said the Learned Counsel " Are your Lordships prepared to do what was done in those cases ? Are they to rule your Lordships' decision in a case without any precedent whatso- ever ?" But even these did not bear on the present case ; and none adverse to the principle had occurred since the year 1784. AND HELKN M The Lord Advocate objected to the question. Mr. COCKBURN. I hold that I am entitled to test this Gentleman's credibility with the Jury, and with that view I shall endeavour to make him confess such acts as will make his evidence go for nothing. I purpose to ask him if he was concerned in any other murder except this one. LORD ADVOCATE thought the Dean of Faculty had agreed to confine himself to this case. LORD MEADOWBANK thought that such a line of conduct could not be pursued. The question was neither a fit nor proper one. Mr. COCKBURN. In general, evidence is adduced because it is entitled or presumed to be entitled to credit. Now, it is monstrous to suppose that I should not be allowed to shake the credit of a human being in respect to his evidence. (He then quoted a case lately tried in England, where a witness in a similar circumstance was examined and acknowledged that he had been guilty of the most atrocious crimes ; in conse- quence of which his evidence was totally discredited.) MR. ALISON replied, the law of England was in no point more opposed to the law of Scotland than in regard to evidence. A witness here could not be called on to answer for his whole life and conversation. The utmost license was allowed in Eng- land in cross-examination, but it is contrary to the uniform and fundamental law of Scotland. DEAN OF FACULTY. I completely agree with my Learned Friend. Our object is to discredit, not to disqualify the witness. We wish to propose a question to try the veracity of thu wit- ness. The witness was warned that he was standing on his oath, being peculiarly situated, but it may happen in most cases that he will answer it, and answer falsely. If he an- swers truly, it will be for his credit ; if falsely, it will then be for the benefit of my client. LORD MEADOWBANK. I regret having -stated the impres- sion made upon my mind by the bare announcement of the question proposed to be put to the witness, because I should most assuredly have rather, in a matter of this vast import- ance, have desired to obtain every light that could have been thrown upon it before I ventured to deliver my judg- ment regarding it. But perhaps my having done so had only the effect of my attention being more anxiously called to every word that dropt from my brethren at the bar, and if 1 were satisfied that if any thing that was suggested by them had the effect of shaking the opinion which oc- curred to me at first, nothing that I stated before could have prevented my honestly and frankly avowi.ig it. I have, 58 TRIAL OF WILLIAM BURKE however, been confirmed in that opinion by finding that notwithstanding all the ingenuity of my learned brethren, they have said so little on the subject, and that they have been unable to show one single precedent in favour of their argu- ment, except that which has been obtained from the law of England. Now, I for one throw the law of England altoge- ther out of the question. It is, I believe, in matters of this kind diametrically opposite to ours. That law holds, that a witness has no protection from having been examined by the Public Prosecutor, on a criminal trial. We hold, that he has. It is quite absurd, therefore, to dream of drawing a precedent, which is to guide your Lordships, from the law of England. But even our law goes no farther than to protect witnesses from being subject to prosecution on ac- count of matter immediately connected with the subject of the trial in the course of which they are examined. I understand it, therefore, to be admitted that, if the question proposed were admitted by your Lordships, the witness must be told that he is not bound to answer it, because it is beyond the competency of this Court to afford protection against being afterwards questioned for the perpetration of crimes which do not form the proper subject of inquiry in the pre- sent investigation. But I have always understood that the law of Scotland has gone a great deal further that it allows no question to be put which a witness may not competently answer, and which, if answered, must not be sent to the Jury as a matter of evidence. Now, in the first place, I admit that i: is quite competent for the prisoner to put any ques- tion relative to the matters at issue by which he apprehends that the credibility of the witnesses for the Crown, may, if answered, by possibility be shaken. The oath taken by the witness, binds him to speak the truth, and the whole truth ; but that obligation goes no further than it refers to the mat- ter before the Court. It neither does, nor has it ever been held, to bind him to speak to matters relative to which he has not been called legally to give evidence. I apprehend, therefore, that even the oath which has been imposed upon the witness, is not obligatory upon him to speak to matters not immediately connected with the subject of this trial and, in fact, such was the opinion of the Counsel for the prison- ers ; for, upon their application, the witness was particular- ly warned that he was only required to speak the truth, and the whole truth, relative to the third charge in this indict- ment. I have always understood, however, that no ques- tion could be put, upon cross-examination, to a witness in this country, which would, if answered, have the effect of rcn- AND HELEN M*DOUGAL. 59 dering him in truth inadmissible. All questions having that effect must be put as preliminary, and after the questions put to all witnesses by your Lordships before the examina- tion commences. In that respect, very likely, we differ from the law of England ; but, for the reasons assigned by Mr. Hume in the passages read by Mr. Alison, I am not in- clined to think that the rules of our law are inferior, or less effectual for the administration of justice. The object of our law has always been to get at the truth, and I sus- pect that is best to be obtained by preventing witnesses be- ing harassed in the way that would result from such ques- tions as the present being held to be admissible. But further still, suppose, in the second place, that the witness answers the question that has been put in the affirmative, and de- pones that he has been present at more murders than the one in question, what is to be the result ? Is the Lord Ad- vocate upon the re-examination to ask him at what murders he has been present, and who was concerned in those mur- ders ; or to go into an examination of all the matters con- nected with those cases ? If he is, we may be involved in an inquiry into the circumstances connected with the other murders in this indictment, which are not now the subject of trial, and which your Lordships, by your interlocutor, have precluded from being the subject of trial. I cannot think that such can be your Lordships 1 intention : yet the Court must be prepared either to go this length or not, be- fore allowing a question to be put which must open up such a field of inquiry , for if the prisoner is entitled to put the one question, it must follow that the prosecutor is entit- led to put the other, and if you do permit such an inquiry, you must be prepared to send the answers so given, and the evidence so arising, to the jury for their consideration. And what would be the consequence ? By the evidence thence arising, and the suspicions thence created, the prisoners might be convicted upon matters not at issue in this indictment. Nor is it enough to say that this has been occasioned by the prisoner himself; for the law of this country interposes to protect a prisoner from his own mistakes it lays down rules by which, in all cases, protection shall be afforded against ei- ther accident or error ; and as I conceive it would be highly erroneous to send such matters to a jury, and yet that we are entitled to permit no questions to be put, the answers to which must not be sent to the jury, I think, this question cannot be admitted. But I set out with saying, that I do not think any question can be sustained by your Lordships, which, if an- swered in the affirmative, would disqualify a witness. Thus, 60 TRIAL OF WILLIAM BURKE suppose that the question put were, Have you committed ten acts of perjury and the answer were in the affirmative, what is to be the result ? Your Lordship must tell the jury either that the witness's answer is true, or that it is false. If true, must it not also be added that he cannot be believed upon his oath ; and if it appears not to be true, then he is equally incredible. By admitting such questions, therefore, the ne- cessary result is that you put it in the power of the witness to disqualify himself; and that, I have invariably understood, I can solemnly assure your Lordships, to have been a principle reprobated by the law of this country. The LORD JUSTICE CLERK thought that the question might be put, but that the witness should be cautioned that he was not bound to criminate himself, for if he answered the question the Court could riot protect him. LORD MACKENZIE thought the question might be put. The witness being warned that he is not bound to criminate himself, and told that he has no protection from the Court, but for the crime now before it. The admission of his hav- ing been guilty of a secret crime could not disqualify him. He had yet seen no sufficient authorities to shake that opinion. The LORD JUSTICE CLERK agreed with Lord Mackenzie, although he thought with Lord Meadowbank that it was the u most extraordinary question he ever heard ;" but the case being an extraordinary one, allowance must be made. The LORD ADVOCATE wished to know in what situation he was placed. Was he allowed to ask him, if" he confessed "Of what murders were you guilty ?" Mr. COCKBURN. We put that question, and the Lord Ad- vocate is entitled to put what other he chooses. I cannot state the thing more generally. We intend to object to no question the Lord Advocate may chocoe to ask. Hare recalled. Q. You mentioned when you was last here, that you assist- ed in taking the bodies to Surgeons' Square ? A. I never was concerned in furnishing none, but I saw them do it. LORD JUSTICE CLERK. You are not bound to answer the question about to be put. Mr. COCKBURN. I am going to put some questions to you, and you need not answer them if you don't choose. Q. How often have you carried dead bodies ? A. I won't answer it. Q. Have you ever been concerned in any other murder ? A. I won't answer that. AND HELEN & X DOUGAL. 6l Q. Was there a murder committed in your house on the 8th October last ? A. I won't answer that. Q. When Burke said he had got a shot for the Doctors, how did you know what he meant by a shot ? A. I heard it often before. Q. Did you know it meant murder, then ? A. Yes. Q. How did you know it ? A. He told me he would murder her. Q. Had you any notion that mischief would happen that night you were dancing ? A. I could not say. Q. When did you suspect there was going to be mischief? A. When I saw him on the top of her. Q. Did you see the body of the woman at the Police Office ? A. Yes. Q. Did you deny there ever having seen the body before ? A. I denied it. Q. How soon was it after her death you saw her at the Po- lice Office ? A.I saw a body there on Saturday or Sunday. Q. You have been acquainted with Burke long ? A. Yes. Q. Have you received any money before from Dr. Knox ? A. No. Q. Did you ever receive any from his assistants ? A. Burke did, and he gave it me. Q. Did you ever receive any ? A. No. Q. Who received the money ? A. Burke. Q. Are you positive that it was five pounds that was to be received on Monday ? A. Yes. Q. Who was it paid the man ? A. I believe Burke did. Q. Burke paid you ? A. Yes, he threw two pounds to me, and seven shillings in silver. Paterson put two pounds in one parcel, and two in another, and halved the silver and Burke shoved it over to me. Q. Had you ever any quarrel with Burke about money ? A. No. Q. You told us that the old woman went out into the pas- sage and cried, Police and Murder ? A. Yes. Q. You say you shoved her down over a stool ? A. Yes. Q. And she lay on her back ? A. Yes. Q. At the time that Burke was on the top of the woman, did you hear her screech ? A. Yes. Q. It could be heard a good bit off ? A. Yes. Q. You say that Broggan was in bed in the morning, did you see him come in ? A. No. Q. Did you srt in that chair and see Burke for ten minutes killing the woman, and offer her no assistance ? A. Yes. Q. You sat by calmly and saw the murder done ? A. Yes. Q. Did you give any information the next day ? A. No. 62 TRIAL OF WILLIAM BURKE Q. But you went to dispose of the body, and received money for it ? A. Yes. Q. And the next day you denied all knowledge of the body ? A. Yes. MRS. HAIRE or HARE Examined. This witness was sworn and solemnly admonished by LORD MEADOWBANK to speak the truth, after which she was examined by the LOUD ADVOCATE. Q. You are the wife of William Hare that was here just now ? A. Yes. Q. Do you remember last Halloween night ? A. Yes. Q. Did two persons sleep in your house that night ? A. Yes. Q. Why did they do so ? A. Burke asked me to give them a bed there in the course of the day. Q. Did you go out that night in search of your husband ? A. Yes, I found him in John Connaway's. Q. Who was there at the same time ? A. Connaway and his wife. Q. Was Burke there ? A. I don't recollect. Q. Had you spirits there ? A. Yes. Q. Do you recollect seeing an old woman there ? A. Not that I recollect. I stopped there until my husband rose, and then we went into Burke"s house with M'Dougal. Q. Was Burke there ? A. No. He came in soon after. Q. Was the old woman there ? A. Yes, she was there be- fore. Q. Was there a fight there between Burke and your hus- band ? A. Yes. Q. Did you go between them ? A. Yes. Q. Did the old woman cry murder ? A. Yes. Q. Did she get a push ? A. Yes. Q. You saw Burke on the top of the old woman ? A. Yes. Q. Did you see him long there ? A. No ; for M'Dougal and I ran out of the room into the passage, and stopped there upwards of a quarter of an hour. Q. When you returned, did you see the old woman ? A. No. Q. Did you ask after her ? A. No. I had my suspicion. Q. What, that she was murdered ? A. Yes. Q. Did you two lie down in the bed ? A. Not immediately. Q. Where were you when Burke was lying on the old wo- AND HELEN M C DOUCAL. 63 man ? A. I thought, before, I was in the bed, but I think now I was between the door and the bed. Q. How many minutes was he on her ? A. Not many. Q. Where was M'Dougal ? A. I don't exactly know. Q. Which went first out at the door ? A. It was I. Q. Were you both alarmed ? A. Yes, Sir. Q. You say you suspected what was doing ? A. Yes, Sir. Q. Had you any previous reason of suspicion of the act about to be committed on the old woman ? A. I had seen a little trick of it done before. I suspected when I saw him lying on her, and Nelly M'Dougal told me something. Q. Just tell us what she said ? A. She came to our house, and said there was a shot in the house ; and I asked her what she was, and she said, Burke fetched her in out of a shop. Q. How did you know it was a woman ? A. She told me. Q. Did she say they intended to make away with the wo- man ? A. No. But I understood from the word shot they were to do it. Q. Why did you understand that ? A. Because I heard that word made use of before to express the determination of murdering others. Q. Were they pressing drink on the woman ? A. Yes. Q. Was she much the worse of it ? A. Rather. Q. You remained there all night ? A. Yes, until 5 o'clock. I was lying in bed when Mr. Paterson came in, but I did not hear what he said. Q. Did you know where the body was put ? A. Yes, at the head of the bed, Q. Did Burke ask you to go out and get a box ? A. Yes. He said he had purchased one for to put old shoes in. I went for the box and a porter came and carried it. I afterwards followed with M'Dougal, our husbands, towards Newington, for fear they should quarrel or get drunk. Q. What answer did you make to her about this shot ? A. I said nothing. Q. Had you and M'Dougal any talk about it on your way to Newington ? A. No. Q. Did she feel sorry for it ? A. No. Q. What were you speaking of while you were in the pass- age ? A. Perhaps I said it might be the same thing with her and I. Q. Do you mean that you might be murdered ? A. Yes. Q. Why did you not go into the woman Connaway's ? T^IAL OF WILLIAM BURKE A. Because I left my home three times before; and it is not na- tural for a woman to go and inform on her husband. Q. You mention the old woman went out at the door ? A. No, Sir, she never went out of the inside door. Q. Was it after she came back from the door she fell down ? A. I believe she got a push. Q. Was it very soon after that that Burke lay down on her? A. Yes. Q. What was he doing when you run out ? A. Burke was lying on her chest. Q. Why did you go out ? A. I did not like to see her murdered. Q. Was your fear created in consequence of M'Dougal having told you she was a shot ? A. No. I had no thoughts of it at the time. By the COURT. On the oath you have now taken, did you suppose she w.as to be murdered that night ? A. No, I did not. Mrs. Hare Cross-examined by the DEAN OF FACULTY. Q. Was it instantly after the old woman was pushed down that he got on the top of her ? A. Yes. Q. There^s a door at the outer side of the passage? A. Yes. Q. How is it fastened ? A. I donH know. Q. When you were in the passage did any one knock at that door ? A. Not that I heard. Q. When you were in the passage did you hear the old woman cry ? A. No, Sir. Q. When you returned in, you went to bed ? A. Yes, Sir. Q. There was a young man of the name of Broggan came in ? A. Yes, and we had a dram. Q. Who? A. All of us. Q. Then you got up to have it ? A. Yes. Q. Did you go tq bed again ? A. No. Q. Was M'Dougal in bed ? A. No ; Broggan, M 4 Dou- gal, and I lay down upon the floor. Q. Was there any more fighting ? A. Yes ; Burke took the stick and struck Hare, and M'Dougal interfered and said she would not have Hare treated in that manner. By the COURT. You had a bed in your own house, why did you not go home to it, and take your husband along with you ? A I did all I could, but he would not come. AND HELEN M^DOUCiAL. (55 Dr. BLACK, Examined. Q. You saw a woman's body at the Police Office ? A. Yes. Q. Did you examine it ? A. Yes. Q. Were there any marks on the body ? A. None. Q. Were there any on the face ? A. Yes, there was blood. Q. What appearance had the face ? A. It was much swollen. Q. Any thing remarkable about the eyes ? A. They were swollen and the face black. Q. Did you think that she came by her death by violence ? A. My private opinion was that she had, but I could not give a decided medical opinion on the subject. Q. What was your opinion the moment you saw her? A. I formed the conclusion that she came by her death with violence. By the DEAN OF FACULTY. Q. Have you any medical diploma ? A. No ; but I am a regularly bred surgeon, and have been surgeon to the police for twenty years. Q. Did you go with the police to the house of Burke ? A. Yes. Q. What did you see there ? A. The thing I took parti- cular notice of was, from fourteen to sixteen ounces of blood mixed with saliva, and having been told the woman had lain in that place, I was able to judge it came from the mouth and nose. Q. Do you mean now to state you have formed a medical opinion in regard to the body ? A. I am really afraid to hazard an opinion. By the COURT. Q. Were the appearances you have seen on people brought into the police-office who have been suffocated from drink like this case ? A. Yes. $ Q. If you had seen this body lying in the place where you saw the saliva and blood, would you have hesitated in your opinion ? A. I have seen several corpses that died by suffo- cation, and taking the entire circumstances into view, I think the appearances identical. By the DEAN OF FACULTY. Q. Have you had any case of simple suffocation lately ? A. No. Q. Were the symptoms here the same, or nearly the same, as in cases of suffocation from drink ? A. The eyes were nearly started from the sockets. By the LORD ADVOCATE. Q. Have you seen such saliva and blood in cases of drink, unless some injury was done ? A. No. 86 TRIAL OF WILLIAM BURKE DR. CHRISTISON, Examined. Q. Did you see the body of an elderly female at the police- office at the commencement of November ? A. Yes. I saw and minutely examined a body there on the 2d and 3d of November. Q. Did you perceive any marks of violence on it ? A. Yes. Q. Describe what you saw to the Court and Jury ? A. I saw several contusions on the legs and the elbows, one on the loin, one on the right shoulder blade, a very small one on the inside of the upper lip, and two upon the head ; one on the back part of the left side of the head, and another upon the fore part of the right side. I also found pale lividity of the features generally, and dark lividity of the lips; great red- ness (from vascularity) of the whites of the eyes ; an almost total want of lividity on almost every other part of the body except the face; and roughing of the scarf-skin or cuticle under the chin and over the upper part of the throat. Internally, I found a general fluidity of the blood, and an accumulation of it in the right cavities of the heart. In the middle of the neck, I found the ligaments connecting posterior parts of the vertebrae torn, and blood effused among the spinal muscles, near the laceration, and into the cavities of the spinal muscles. I found no sign of natural disease, except a very slight incipient disorder of the liver. All the other organs of the head, the chest, and the belly, were unusually sound. I forgot to mention a small patch of blood on the left cheek, and also a very slight contu- sion over the left eye. Q. Did you consider that those contusions could be pro- duced after death? A. No ; but the injury of the spine and other appearances described might have been caused as well after death as before it. An injury properly applied eighteen hours af- ter death, would, I think, cause the same appearances. Cramming into a box or chest like that shown might have caused these appearances. Strangulation or smother- ing, or throttling, is consistent with what has been describ- ed, but particularly throttling or applying the hand under the throat, and throwing the head backward, would prevent the access of air. I found unequivocal proof of violence, in the contusions dispersed throughout the body, and in no signs of disease being visible. I beg to add, from the woman being seen so recently alive and well, from the blood under the bed, as well as the appearances already mentioned, death by violence is extremely probable. If the woman had met her death by the prisoners at the bar, the appearances were such as would correspond with these circumstances. The appear- AND HELEN M'DOUGAL. 67 atices in some cases of suffocation would be similar to those in the preset instance. The appearance of Wood from the mouth or nose afn-r death nir-y be produced by any species of suffo- cation, Directly or indirectly, death by intoxication must physiologically be occasioned by .suffocation. By Mr. COCKBURN. Q. Did the appearances found on the body justify only a suspicion ? A. Coupled with the cir- cumstances mentioned they amount to a probability. By the COURT. Q. Did you open the stomach ? A. Yes, my Lofd. Q. Describe the contents. A. I found half-digested porridge, but no smell of whisky or of any narcotic. The smell is not a necessary circumstance even in cases of intoxication where a per- son was said to have died of continuous intoxication. At least I know of a reported case where a person was said to have died from constant intoxication, without any smell having been found in the stomach, though it was found in the brain and other parts of the body, but I also know a similar case where the stomach, on being opened, gave out the effluvia of whisky. This closed the case for the prosecution. The declarations of the pannels were then read. DECLARATION OF BURKE. At Edinburgh the 3d November 1828. In presence of GEORGE TAIT, Esq. Sheriff-Substitute of Edinburghshire, Compeared William Burke, at present in custody, who being examined, declares that he is 36 years of age, and he was born in Ireland, and he came to Scotland about 10 years ago : That he is a shoemaker, and he has lived for rather more than a year in the West Port, and about two months ago he went to the house in the West Port in which he at present lives ; but he does not know the name of the entry ; and the prisoner, Helen M'Dougal, has lived with him for about ten years ; but she is not married to him. Declares, that he at first lodged in his present house with a man named John Brogan, but Brogan went away about ten days ago, and the declarant now lodges in the house by himself. Declares, that James Gray and his wife and child came to lodge with the declarant about a week ago. Declares, that on the night of Thursday last, the 30th of October, no person was in the de- clarant's house, except Helen M'Dougal, Gray, and his wife. Declares, thjit on the morning of Friday last lie r< 68 TRIAL OF WILLIAM BURKE I 7 o'clock and immediately began to his work, by mending a pair of shoes : That M'Dougal rose about 9 o'clock. Declares, that Gray rose about 6 o'clock and went out : That Gray's wife rose soon afterwards and lighted the fire, and the decla- rant then rose as before mentioned. Declares, that he went out about 9 o'clock to get some tobacco, and he returned in a few minutes, and they all four breakfasted together about 10 o'clock, and the women were occupied through the day in washing and pressing, and sorting about the house ; and Gray was going out and in, and the declarant was working ; and declares that on Friday evening he told Gray that he and his wife must go to the other lodging, because he could not afford to support them any longer, as they did not pay for the pro- visions which they used, and they went away ; and the decla- rant accompanied them to Hare's house, to which he recom- mended them. Declares, that he thinks Gray and his wife went away about 5 o^clock. Declares, that about an hour af- terwards, when he was standing at the mouth of the entry, a man came forward to him dressed in a great coat, the cape of which was much up about his face : That he never saw that man before, and does not know his name: That the man asked if the declarant knew where he could get a pair of shoes mended, and the declarant, being a shoemaker, took him home with him, and got off the man's shoes and gave him an old pair in the meantime : That while the declarant was mending the shoes the man walked about the room, and made some remarks about the house being a quiet place, and said that he had a box which he wished to leave there for a short time, and the declarant consented : That the man went out, and in a few minutes returned with a box, which he laid down upon the floor near the bed, which was behind the de- clarant, who was sitting near the window, with his face to it : That the declarant heard the man unroping the box, and then making a sound as if he wtere covering something with straw, and the declarant looked round, and saw him pushing the box towards the bottom of the bed, where there was some straw on the floor, but he did not observe any thing else than the box : That the man then got on his shoes, paid the declar- ant a sixpence, and went away : That the declarant immedi- ately rose to see what was in the box, and he looked under the bed and saw a dead body among the straw, but he could not observe whether it was a man or a woman : That soon afterwards the man came back, and declarant said it was wrong for him to have brought that there, and told him to put it back into the box, and take it away : That the man ,'~aid that lie would come back in a little and do it, and then AND HELEN M^DOUGAL. 69 went away, but he did not return till Saturday evening about 6 o'clock, and when he did not return on Friday night, the declarant took the box into the entry, but allowed the body to remain under the bed. Declares, that on Saturday morning, about ten o'clock, he went out to the shop of a Mr Rymer, in the West Port, and when he was there, a woman came to the door begging, whom he had never seen before: That the people in the shop refused to give her any thing, and the declarant, discovering from her dialect that shi came from Ireland, asked her from what part of it she came, she said it was from Inesomen, which is a small town in the north of Ireland, and he then asked her name, and she said that it was Mary Dougherty, and the declarant remarked, that his mo- ther's name was Dougherty, and that she came from the same part of Ireland, and that, therefore, they might perhaps be distant relations ; and as she said that she had not broken her fast for twenty-four hours, if she would come home with him, he would give her breakfast, at which time the only per- sons in the house were Helen M'Dougal, Gray and his wife : That she sat by the fire till about three o'clock in the after- noon smoking a pipe, the declarant going out and getting a dram, because it was Halloween, and they all five partook of the dram sitting by the fireside. Declares, that at three o'clock Mary Dougherty said, that she would go to the New Town to beg some provisions for herself, and she went away accordingly. Declares, that he thinks Helen M'Dougal was in the house when Mary Dougherty went away, but he does not remember whether Gray or his wife were in the house, and does not remember of any other person being in the house. Declares, that a few minutes before Mary Dougherty went away, William Hare's wife came into the house, but went away into the house of a neighbour, John Connoway, immediately before Dougherty, went away, and he thinks that Hare's wife, or Connoway's wife, may have seen Dougherty go away, and Mary Dougherty never returned. Declares, that Helen M'Dougal and Gray's wife then washed the floor, and cleaned out the house : That there was no particular reason for doing so farther than to have it clean upon the Saturday night, ac- cording to their practice ; and the declarant continued at his work : That soon afterwards Gray and his wife went away, and Helen M'Dougal went to Connoway's house, leaving the De- clarant by himself, and the Declarant had not mentioned to any person about the dead body, and no suspicion that it had been discovered. Declares, that about 6 o'clock in the even- ing, while he was still alone, the man who had brought the body came, accompanied by a Porter whom the declarant TRIAL OF WILLIAM BUfcKE knows by sight, and whose stance is at some where about the head of the Cowgate, or the foot of the Candlemaker-Row, and whose Christian name he thinks is John : That the man said he had come to take away the body, and the declarant told him the box was in the entry, and the Porter took it in, and the man and the Porter took the body, and put it into the box and roped it, and the porter carried it away. Declares, that when the man came with the porter he said he would give the declarant two guineas for the trouble he had in keeping the body, and proposed to take the body to Sur- geons' 1 Square to dispose of it to any person who would take it ; and the declarant mentioned David Pater son as a person who had some connexion with the surgeons, and went to Pafcerson and took him to Surgeons' Square, where he fotind the man and the porter waiting with the box containing the body : That the body was delivered, and Paterson paid a certain num- ber of pounds to the man, and 2* 10s. to the declarant : That he then went straight home, and was informed by some of the neighbours that a report had been raised of a dead body having been found in the house, and in particular by Conno- way's wife, who told him that a policeman had been searching his house, and he then went out in search of a policeman, and he met Finlay and other policemen in the passage, and he told them who he was, and they went with him to the house and found nothing there, and they took him to the police office. Declares, that he yesterday saw in the police office the dead body of a woman, and he thinks it is the dead body which was below the bed, but it has no likeness to Mary Dougherty, who is not nearly so tall : And being interrogated whether the man who brought the body and afterwards came with the porter is William Hare, declares that he is. And being interrogated, declares that he does not know of any person who saw that Hare had any concern in bringing the body or in taking it away ; and being interrogated, declare^ that the porter's name is John M'Culloch, and declares that- the box in which the body was contained was a tea-chest ; and being specially interrogated, declares that the woman above referred to, of' the name of Mary Dougherty, was not in his house on Friday, and he never to his knowledge saw her till Saturday morning at 10 o'clock : That she promised him to return on the same evening, but she did not, and he dees not know what may have become of her. And being in- terrogated, declares that he sprinkled some whisky about the house on Saturday, to prevent any smell from the dead body. Declares, that Hare did not tell him, nor AND HELEN MDOL"GAL. 7^ did he ask where he got the body. Declares, that he did not observe whether there was any blood upon the body. And being specially interrogated, declares, that lie had no concern in doing harm to the woman before referred to, of the name of Mary Dougherty, or to the woman whose body was brought to the house, and he does not know of any other person being concerned in doing so. Declares, that Dougherty was dressed in a dark gown ; and being shown a coarse linen sheet, a pil- low case, a dark printed cotton gown, and a red striped bed gown, to which a label is affixed, and signed by the declarant and Sheriff, as relative hereto, declares, that the sheet and pillow-slip are his, and he knows nothing about the dark gown and bed gown : That the blood upon the pillow-slip was oc- casioned by his having struck Helen M'Dougal upon the nose, as is known to Gray and his wife ; and the blood upon the sheet is occasioned by the state in which Helen M'Dougal was at the time, and is known to Gray's wife. All which is truth. AROHD. SCOTT. /0 . WM. BURKE. A. M'LucAs. ' G.TAIT. A. MACLEAX. At Edinburgh, the IQlh day of November 1828. In presence of GEORGE TAIT, Esquire, Sheriff-Substitute of Edinburghshire. Compeared William Burke, present prisoner in the Tol- booth of Edinburgh, who being examined, and the declara- tion emitted by him before the said Sheriff-Substitute of Edinburghshire, on the 3d day of November current, being read over to him, he declares that it is incorrect in several particulars declares that it was upon the Friday morning, and not upon the Saturday morning, that the woman, named Mary Dougherty, came to the house, and that all that is said with reference to that woman, up to her going out at 3 o'clock, happened upon the Friday, and not upon the Saturday ; and declares that' the floor being wet in consequence of Helen M'Dougal and Gray's wife washing in the house, those two women washed the floor then, rather than defer it till next day, and the floor was usually washed twice a week, and it was usually washed on the Saturday, as one of the days : That those two women continued doing things about the house, and the decliirant continued working till it was duskish : That the declarant then stopped work, and went out and brought in a dram, because it was Halloween, and he and the two women sat by the fire and drank the dram, and while 72 TRIAL OF WILLIAM BURKE they were doing BO, William Hare came in, and the declar- ant went for more drink, and they all four sat drinking till they got pretty hearty. Declares, that when he was out for drink the second time, he found when he came back, that Mary Dougherty had returned, and was sitting by the fire, and she drunk along with them : That when it was pretty late in the night, but he cannot mention the hour, he and William Hare differed, and rose to fight, and the three women were still in the house drinking, and Mary Dougherty had become much intoxicated. Declares, that while he and Hare were struggling together, Helen M'Dougal and Hare's wife did what they could to separate them; but declares that there was no noise, and, in particular, there were no cries of mur- der. Declares, that after they were separated, they sat down at the fire together to have another dram, and they then miss- ed Mary Dougherty, and asked the other two women, what had become of her, and they answered that they did not know, and the declarant and Hare searched for her through the house, and they both went straight to the straw of the shake-down bed upon the floor at the bottom of the standing bed, to see whe- ther she had crept in there, and they found her amongst the straw, lying against the wall, partly on her back and partly on her side : That her face was turned up, and there was some- thing of the nature of vomiting coming from her mouth, but it was not bloody : That her body was warm, but she appeared to be insensible, and was not breathing : That, after waiting for a few minutes, they were all satisfied that she was dead, and the declarant and Hare proposed to strip the body, and lay it among the straw, but they did not, at that time, say what further they proposed to do, and Helen M'Dougal and Hare's wife immediately left the house, without saying any thing, and the declarant supposed it was because they did not wish to see the dead body : That the declarant and Hare waited till the neighbours should be quiet, there being a con- siderable stir among the neighbours on account of its being Halloween, and in particular, in the house of Connoway, who lives in the same passage, in case any of the neighbours should come in upon them, and they stripped the body, and laid it among the straw, and it was then proposed by both of them, but he cannot say by which of them first, to sell the body to the Surgeons, and they both arranged that they would sell the body to David Paterson, whom they knew to be a porter to Dr Knox, in Surgeons* Square, and who, they knew, re- ceived subjects, and that they would put the body into a chest, and get it conveyed to Surgeons' Square, the following morning, and they then sat down by the fire again, and Helen AND HELEN M c l)0i;t: AT. 7'^ M'Dougal and Hare's wife then returned, but nothing was said by any person about the dead body : That Hare and his wife then went home, at which time it would be near 12 o'clock on the Friday night, and the declarant and M'Dougal went to bed and fell asleep, and rose next morning soon after 6 o'clock : Declares, that Gray and his wife came in about 8 o'clock in the morning and lighted the fire, and prepared breakfast, and they all got breakfast together, and the decla- rant then went out, and brought in a dram, and sprinkled it under the bed, and upon the walls, to prevent any smell : De- clares, that he went out about 12 o'clock noon, and was out for about two hours walking about, and when he re- turned, he found Gray, and his wife, and Helen M'Dougal still in the house, and after that he was occasionally out. De- clares, that when it became dark he went to call for Paterson, but found that he was out, at which time it was past five o'clock : That he then got John M'Culloch, a porter, and took him to the passage of the declarant's house, and then left him there, and went into the house, and found William Hare there, but no other person, and he also saw an empty chest upon the floor, and they both immediately put the body of the woman into the tea-chest, and they roped it up with a line which hung across the house for drying clothes ; and they called on M'- Culloch and put the tea-chest upon his back and told him to follow Hare, but they did not tell him what was in the tea- chest, nor did he ask them ; and the declarant then went straight to Paterson's house and found him at home, and told him that he had sent forward a subject to Surgeons' Square, and he has no recollection of having seen Paterson on the Fri- day or the Saturday before that time. Declares, that Paterson and the declarant then went to Surgeons' Square together, and they found Hare and M'Culloch waiting there with the tea- chest, and Paterson opened the door of a cellar and the tea- chest was put into it : That Paterson then went and got 5, and gave it to the declarant and Hare, and they paid the por- ter and then went to their respective homes, and the declarant on his way home met Helen M'Dougal, and when they got home they heard from Connoway's wife the report of policemen having searched the house for a dead body, and he then met with Finlay the criminal officer, and he was apprehended and taken to the police office as formerly mentioned ; and being in- terrogated, declares, that he cannot say whether the dead body he saw in the police office on Sunday the 2d current be the body referred to ; and being interrogated, declares, that he had no concern in killing the woman, or in doing any harm to 4. I. 74 TRIAL OF WILLIAM IUJRKK her, and he has no knowledge or suspicion of Hare or any other person having done so ; and it is his opinion, that the woman was suffocated, by laying herself down among the straw in a state of intoxication ; and heing interrogated, declares, that no violence was done to the woman when she was in life, but a good deal of force was necessary to get the body into the chest, as it was stiff; and, in particular, they had to bend the head forward, and to one side, which may have hurt the neck a little, but he thinks that no force was used, such as could have hurt any part of the neck at all ; and being spe- cially interrogated, declares, that no other person had any con- cern in the matter ; and, in particular, declares, that a young man, named John Brogan, had no concern in it, and that Brogan came into the house on Saturday forenoon, as he thinks, while the body was in the house, but he did not know of its being there. And all this is truth. ARCHD. SCOTT. (Signed) Wat. BURKE. A. M'LucAS. G. TAIT. A. M'LEAN. At Edinburgh, the IQth day of November 1828. In presence of GEORGE TAIT, Esq. Sheriff-Substitute of Edinburgh shire, Compeared William Burke, present prisoner in the tol- booth of Edinburgh, who being examined, declares, that he is thirty-six years of age, and he was born in Ireland, and he came to Scotland about ten years ago, and he is a shoemaker, and he has lived for rather more than a year in the West Port ; and the prisoner M'Dougal resides with him ; declares, that he never saw a lad known by the name of Daft Jamie ; and he does not know of such a person having lived with Hare's wife, before her marriage with the prisoner William Hare, and he had no concern in injuring such a person ; and he does not know of M'Dougal, Hare or his wife, having done so. Interrogated, declares, that he has a brass snuff box which he purchased about four years ago from a shearer lad at Mr. Howden's farm, about two miles from Tranent for sixpence, and he left it in the Lock-up- house last Monday, when he was committed to jail; and de- clares, that he had a snuff spoon which was taken from him when apprehended, and he purchased it for twopence in Sep- tember last from a hawker at the West Port, whose name and residence he does not know, and being shown a brass snuff AX1> 1IKLKX M'DOI GAL. 7 5 box, and a snuff spoon, to which a label is attached, sighed by the declarant and Sheriff, as relative hereto, declares, that they are the snuff-box and snuff spoon he refers to ; declares, that he gave the box to a tinsmith in the West Port, named James, whose surname he does not know, but whose shop is next door to Brown's circulating library, to put a new lid upon it, and he thinks he gave it to the tinsmith in September last, and the tinsmith kept it in his possession some weeks ; and all this is truth, &c. At Edinburgh, the 3d day of November 1828. In presence of GEORGE TAIT, Esq. Sheriff-Substitute of Edinburghshire, Compeared Helen M'Dougal, at present in custody, who being examined, declares, that she is 33 years of age, and she was born in Stirlingshire : That she never was married., al- though she has lived with the prisoner, William Burke, for 10 years : That about a year ago they came to reside in Tan- ner's Close, 'West Port; and about three months ago they went to another house in the West Port, but she does not know the name of the close : That a person, named John Brogie, occupied the house in which they at present reside ; but Brogie left the house on Friday 8 days, and the declarant and JBurke, who were living with Brogie previously to his leaving the house, took possession of it by themselves. De- clares, that James Gray and his wife came to live with Burke on Sunday the 26th of October. Declares, that the only per- sons who were in the house on the night of Thursday last, the 30th of October, were Gray and his wife, and Burke and the declarant : That Burke and the declarant arose from bed on Friday morning about 10 o'clock, and Ann Gray made break- fast for them ; and when she was making breakfast for them Burke went out, and said that he was going to the shop, by which she understood him to mean that he was going to get a dram, and he came in_when breakfast was ready ; and in about five minutes afterwards, when they were taking breakfast, a woman came in whom the declarant had never seen before, and who afterwards said that her Christian name was Mary : That Mary appeared to be the worse of liquor : That she ask- ed leave to light her pipe at the fire ; and she then asked a little bit of soap to wash her cap, and a short-gown, and her apron, and the declarant gave her a. bit of soap, and she wash- ed her clothes, and Gray's wife dried them and ironed them ; TIUAL UF WILLIAM ttUKKE and while that was doing, she talked about having come from Ireland in quest of her son, and soon after she came into the house she said she had got no meat for three days, and the declarant gave her a share of their breakfast : That Burke and Mary entered into conversation ; and Burke, upon hearing that she came from Ireland, said that he came from Ireland too, and he did not know but she might be a relation of his mother's. Declares, that about 1 o'clock in the afternoon Burke brought in some whisky and gave them a glass once round, it being the custom of Irish people to observe Hallow- een in that manner : That Mary became very impatient to go away in order to go to St. Mary's Wynd to inquire for her son, and she went away about 2 o'clock. Declares, that Burke had gone out about half an hour before that and returned about 3 o'clock ; and when he came in, he mentioned that Nancy Connoway, a neighbour, had said to him that she wonder- ed how he could keep Gray and his wife in the house because the noise of their quarrelling was so unpleasant to the neighbours ; and therefore he told them to go away, and never to come back again, because he had not up-putting for them, and Gray and his wife accordingly went away immediately. Declares, that Hare's wife happened to be in the house at the time, and said that she would give them a night's lodging, as she had a spare bed, and the declarant supposed that they went to Hare's, and it would be about six o'clock when they went away : That Burke went to Hare's house about seven o'clock, and the declarant went about half an hour afterwards : That when she went to Hare's, Burke was not there, but she went to an adjoining shop and brought him there, and they had some supper and drink there : That the declarant then went home, and Burke followed soon afterwards bringing some whisky with him which he had got in a shop, and soon after- wards Hare and his wife came in, and they four had some spi- rits together ; and Nancy Connoway, before mentioned, came in and had a share of the spirits : That the declarant then went to Conno way's house and had a dram, and then returned to her own house, and found Hare and his wife still there : That they almost immediately went away, but very soon re- turned, and Hare was very much intoxicated, and Hare lay down in the bed and slept along with Burke all night, and the declarant and Hare's wife slept on the floor : That about six o'clock in the morning Hare and his wife went away : That about seven o'clock, Gray and his wife came in to get some clothes which they left, and the declarant and Burke lay down in bed, and about eight o'clock Burke rose and told AND HilLEN M'JUOUtiAL. 77 Gray's wife, who still remained in the house along with her husband, to sort the house and get the kettle boiled, and he himself went to a neighbouring shop for tea and sugar and bread and butter : That when Burke came, Gray's wife made the tea, and Gray and his wife and Burke took breakfast to- gether, and a young man named John Broghan came in and got a share of it : That the declarant did not take any of it : That after breakfast, Gray's wife washed the floor and cleaned the house, the declarant being in bed unwell, in consequence of drink which she had had, and Broghan was in the house most of the day : That Gray remained in the house all day : That Burke was sometimes out and sometimes in, and he lay down for a short time. Declares, that about five o'clock that afternoon the declarant sent Mrs. Gray to Mrs. Law's with some clothes to get mangled ; and Gray and his wife left the declarant's house about seven o'clock to go to their lodgings, and shortly after they so left the house, Mrs. Law came and asked the declarant if she gave Mrs. Gray orders to get her gown : That the declarant said she had not, and Mrs. Law then said, she was off' with it, and in a little after a girl came in and told the declarant that a man was on the street with the declarant's gown, and she went out and found Gray stand- ing at the head of Tanner's Close with the gown under his arm : That she got her gown from Gray, and the declarant and Gray and his wife and Mrs. Hare had a dram together, and the declarant left the gown in Mrs. Law's to get mangled : That the declarant then went home and kindled the fire, and she went out for her husband as it was late, and after she found him they went into Connoway's house, where they re- mained for a few minutes, and Connoway told them that Mrs. Gray had been raising a disturbance, and the declarant and her husband were going out of Connoway's house, when they were apprehended by two policemen, who said that they had taken a corpse out of the house; and, being interrogated, declares, that she did not see Mary after two o'clock on the Friday, and, in par- ticular, she did not see her in the house on the Friday night. Declares, that she yesterday saw the dead body of a woman in the Police Office, but declares that it is not the body of the woman named Mary, because Mary had dark hair, and the body of the woman in the Police Office had grey hair ; and being interrogated, declares, that she had no knowledge or sus- picion of there being any dead body in the house ; and, in particular, of its being under the bed, till after she was ap- prehended. Declares, that there is only one bed in the house ; and declares, that so far as she knows, nothing was under the 78 TllIAL OF WILLIAM BURKE bed except a few potatoes and a little straw, which had fallen from the bed. Being interrogated, declares, that she had no conversation with Gray regarding a dead body ; and in parti- cular, never promised him any money not to say any thing about a dead body ; and being shown a coarse linen sheet, a coarse pillow-case, a dark printed cotton gown, and a red striped cotton bed-gown, to which a label is attached, signed by the sheriff as relative hereto, declares, that the sheet be- longs to a William M'Kinn, from whom the declarant got a loan of it. That the pillow-case was used for containing dirty clothes, and lay at the head of the bed as a pillow, but she never saw the dark gown before to her knowledge. De- clares, that the bed-gown is like the one which Mary wore on the Friday, but she cannot say that it is the same, as it is torn. Declares, that Burke had no money on the Friday, and he had to borrow money for their breakfast on the Saturday morning. That the declarant got 3s. from him on Saturday night, but she does not know where he got that money ; and, being spe- cially interrogated, declares, that she had no concern in killing the woman Mary, or in hurting her, and does not know of Burke, or Hare, or any other person being concerned in doing so, or in concealing the dead body about the house, or in after- wards disposing of it. And, being interrogated in regard to some marks of blood on the sheet and pillow-slip, declares, that the marks upon the pillow-slip were from her nose bleed- ing, in consequence of Burke having struck her ; and the blood upon the sheet proceeded from the declarant, in conse- quence of her state at the time, as was known to Mrs. Gray. And all this she declares to be truth, and that she cannot write. ARCHD. SCOTT. (Signed) G. TAIT. A. M'LucAs. A. MACLEAN. At Edinburgh, thelQt/i day of November 1828. In presence of GEORGE TAIT, Esq. Sheriff-Substitute of Edinburghshire, Compeared Helen M'Dougal, present prisoner in the tol- booth of Edinburgh, and being examined, and the declaration emitted by her before the said Sheriff-Substitute, at Edin- burgh, upon the 3d day of November current, being read over to her, she adheres thereto. And being interrogated, de- AND HELEN frl'DOUGAL. /iJ clares, that between three and four o'clock of Friday afternoon, the woman named Mary insisted on having salt to wash her- self with, and became otherwise very troublesome, and called for tea different times, and the declarant told her she could not be troubled with her any longer, and thrust her out of the door by the shoulders, and never saw her afterwards. And being interrogated, declares, That Brogan did not bring any woman into the house. And being interrogated, declares, That William Burke and William Hare had a slight differ- ence and struggle together on Friday night, as she thinks ; but there was no great noise made, and no cries of murder, so far as she heard. All which she declares to be truth ; and that she cannot write. ARCHD. SCOTT. (Signed) GEORGE TAIT. A. M'LucAs. A. M'LEAN. The LORD ADVOCATE addressed the Jury in the following terms : Gentlemen of the Jury. It is now my duty to make a few remarks on the tenor of the evidence which has been laid be- fore you in support of the indictment against the pannels at the bar ; and, at this late hour, when you must be exhausted with the long trial in which you have been engaged, I shall not detain you long. Indeed, had this been an ordinary case, I should have had great pleasure in leaving the evidence to your own judgment, without one word of comment from me, satisfied that, in the charge which you will receive from the Court, before you retire, a much more luminous and impartial detail of its substance and bearings will be given, than can be expected from one holding the situation which I do, as Pub- lic Prosecutor. But this is a case of no ordinary complexion ; and I am, therefore, called on for some observations, more es- pecially, as you will be addressed on behalf of the prisoners by my honourable and learned friends on the other side of the bar ; and it might be thought remissness on my pa^rt, if I were to allow the evidence to go to you for a verdict, without some remarks on its tendency, while its true effect would per- haps be impaired by the able comments of the pannels 1 coun- sel. Gentlemen, it affords me peculiar satisfaction to see, in a case of this kind, so full and formidable an array of counsel for the defence. In all cases, the Bar of Scotland does itself honour by undertaking the defence of the unhappy persons 80 TRIAL OF WILLIAM BURKE who are brought before this Court accused of offences ; but, in this case, I am proud and happy to see the most distinguished among my brethren engaged in the defence of the prisoners coming forward and lending the strength of their great talents and great learning spontaneously and gratuitously to these unfortunate persons. It is for the ends of public justice that they have done so : and it is a great consolation to me, in the discharge of my painful duty, that the pannels, and in them the law and the country at large, will derive all the benefit which may be looked for from the knowledge and the elo- quence of such distinguished advocates. If an acquittal should follow the proceedings in which we have this day been en- gaged, I hope it will be acknowledged that I have only done my duty to the public, in putting these prisoners on their trial ; and should they be convicted, they will be ably defend- ed, if they have any defence ; and the country must be satis- fied that the conviction will be just, when the defence is in the hands of counsel so eminent, and so universally and de- servedly respected. And, Gentlemen, this aid of able counsel is of the more im- portance, that this is one of the most extraordinary and novel subjects of trial that has ever been brought before this or any other Court, and has created in the public mind the greatest anxiety and alarm. I am not surprised at this excitement, because the offences charged are of so atrocious a description, that human nature shudders and revolts at it ; and the belief that such crimes as are here charged have been committed among us, even in a single instance, is calculated to produce terror and dismay. This excitement arises from detestation of the assassins' deeds, and from veneration for the ashes of the dead. But I am bound to say, that whatever may have occasioned this general excitement, or raised it to that degree which exists, it has not originated in any improper disclosures on the part of those official persons who have been entrusted with the investigations connected with this business ; for there never was a case in which the public officers to whom such inquiries are confided, displayed greater secrecy, circumspec- tion, and ability. It is my duty, Gentlemen, to remove that alarm which prevails out of doors, and to afford all the pro- tection which the law can give to the community against the perpetration of such crimes, by bringing the parties implicated to trial ; and I trust it will tend to tranquillize the public mind, when I declare I am determined to do so. I cannot allow any collateral notions about the promotion of science to influence me in this course ; and I am fullv determined that AND HELEN M